Amicus Curiae Brief — Rancho Palos Verdes v. Abrams
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, (— SapremeCout US
/5 FILED |
No. 03-1601
OFFICEOFTHECLERK |
IN THE
Supreme Court of the United States
CITY OF RANCHO PALOS VERDES, et ai.,
Petitioners,
Vv.
MARK J. ABRAMS,
Respondent.
On WrRirt OF CERTIORARI TO THE UNITED STATES
Court OF APPEALS FOR THE NINTH CIRCUIT
BrikeF OF JAMEs A. Kay, JR. As
AMICUS CURIAE IN SuPPORT OF RESPONDENT
407 North Harbor Boulevard
San Pedro, CA 90731
(310) 548-0410
Rosert J. KELLER Barry RICHARD
Law OFFICES OF Counsel of Record
Rosert J. Kevver, P.C. GREENBERG TRAURIG, P.A.
P.O. Box 33428 101 East College Avenue
Farragut Station Tallahassee, FL 32302
Washington, D.C. 20033 (850) 222-6891
(202) 223-2100 E.uiot H. SCHERKER
GLENN S. McRosBerts GREENBERG TRAURIG, P.A.
Tom MACIEJEWSKI 1221 Brickell Avenue
TRUTANICH - MICHEL, LLP Miami, FL 33131
Port of Los Angeles Office
Counsel for Amicus Quri®¥Ficg Of
191467
[BEST AVAILABLE COPY /
i
TABLE OF CONTENTS
Page
Table of Cited Authorities ..................... ii
Table of Appendices ......................... vi
Interest of Amicus Curiae ..................... l
Summary of Argument ....................... 2
Statement of the Facts ........................ 3
UIE 6 6:00 0h6scbdebnneténcaenteee 7
The Telecommunications Act’s Provisions
For Judicial Review Of Local Governmental
Orders Denying Requests For Placement Of
Personal Wireless Service Facilities Cannot
Be Construed To Deny Access To Relief
Under 42 U.S.C. § 1983. ................ 7
A. The Analytical Framework........... 7
B. Extrinsic Sources of Purported
Congressional Intent Have No Place in
Construing an Unambiguous Statute. . . 9
C. The City and the NLC Cannot Demand
That the Court Must Import State Zoning
Law Limitations on Awarding Damages
on Appellate Review into Section
Paar aie ll
PED ns de ccidcdndvuae Scot eee 18
“ a ili
TABLE OF AUTHORITIES Cited Authorities
7 Page
Cases
Howlett by and through Howlett v. Ross,
Abrams v. City of Rancho Palos Verdes, cake ks whe addoceuace
354 F.3d 1094 (9th Cir.), .
cert. denied, 125 S. Ct. 26 (2004) ............ 7 Kay v. City of Rancho Palos Verdes,
No. CV 02-3922-DSF
Blessing v. Freestone, acem. Cae Wee 1S, DOOR)... cc ccc ccc cccce
EE ck ewdgdaseeeseeseesc 7-8
| ; Kelly v. Robinson,
Crider v. Board of County Comm'rs of ee eg ge wie) Jes aint
County of Boulder,
246 F.3d 1285 (10th Cir.), Landreth Timber Co. v. Landreth,
cert. denied, 534 U.S. 890 (2001) .........45. 16 OTE DD, GRU CITES) «0.000 cnc cecscccceccenss
Eichenlaub v. Township of Indiana, Leatherman v. Tarrant County Narcotics
385 F.3d 274 (3d Cir. 2004) ............0000e 16 Intelligence & Coordination Unit,
og
Engine Mfrs. Ass'n v. South Coast Air
Quality Mgmt. Dist., Owen v. City of Independence, Mo.,
EE secede tcedéaees se vcve 9 SF PED Sec avduncdseccevcessaes
Goodyear Atomic Corp.-v. Miller, Pierce v. Underwood,
ree 16 EE Sia hte deelbduawedewis
Shannon v. United States,
Greenbriar Village L.L.C. v. Mountain Brook, City,
i irda ddbideee obs see eus
345 F.3d 1258 (11th Cir. 2003) .............. 16
United States v. Gonzales,
Harlen Assocs. v. Incorporated Village of Mineola,
ME vnc civececceceneshviees ex
273 F.3d 484 (2d Cir. 2001) ..........--0005. 16
iv
Cited Authorities
Page
Universal Camera Corp. v. National
Labor Relations Bd.,
eee ree 14
Western Air Lines v. Board of Equalization
of South Dakota,
IE i oes xceneyeenced ones 10-11
Yates v. United States,
EE 6s canneéneaeseeeeed ees 15, 16
Statutes
Ram, Came § CECT GD a icin cde vedcvvedsecscse’ 11
Cit: GI SE 6 vce vsveedwe ees cvenea ll
Dev. Cope ANN. Tit. 10, § 4011(b)(2) ... sete eens 12
ee Et PPPOE ETTTTIT TTT iT cee 12
S.C. Cope Ann. § 15-78-60(1)-(2) ..........00.. 12
TENN. Cope ANN. § 29-20-201 ...........0.085- 12
Lk Tee rr rerrrry erry Ty rc rr er: 14
fh EG | =e TTVETET TTT tree passim
4 le | errr err rrr rr re Tyr 2,8
Vv
Cited Authorities
Page
Pe ee STD ov kc 60d deb dcaccxededecs passim
G7 UDG. GOSRIMIMAD «nc cccccccccccsvcce 7
47 UBC. § SSAC NT MBM) ow. ww ccc ccccccces passim
BF UBC. © SSRI) «ono cceccccccccces passim
Rules
8 Te ee erm anne anaes l
Pe ee EE waivuabevewecuuckeuuucx 13
Other Authorities
H.R. Conr. Rep. No. 458, 104TH Cona., 2p Sess.
EEE, Co sveke Gey slush hia iocake, 10 |
vi
TABLE OF APPENDICES
Page
Appendix A — Opinion And Order Of The United
States District Court For The Central District Of
California Dated July 12, 2004 And Filed July 13,
SE nc onc vbebiekonedn ss cube ey beatus ses la
Appendix B — Excerpts From City Of Rancho Palos
Verdes Planning Commission Meetings ....... 54a
l
INTEREST OF AMICUS CURIAE'
Mr. Kay has been a Federal Communications
Commission licensed provider of business and commercial
mobile radio services since 1973. His business specializes
in the installation, maintenance, design, operation and sales
of air time for two-way radio communication systems in
California. He has had vast experience in dealing with local
governments and their zoning codes in the siting and
construction of radio antennas.
As noted in petitioner’s brief, Mr. Kay has challenged a
resolution of petitioner City of Ranchos Palos Verdes (the
City), which resolution denied him a permit to operate
commercially on a pre-existing, approved amateur antenna
structure, just as the City denied respondent Abrams a similar
permit. Brief of Petitioner at 11 n.4. In Kay v. City of Rancho
Palos Verdes, No. CV 02-3922-DSF (C.D. Cal May 15,
2002), the district court ruled that the resolution denying
Mr. Kay’s permit was not supported by substantial evidence,
as required by 47 U.S.C. § 332(c)(7), the Telecommunications
Act of 1966 provision that is at issue before this Court.
The district court ordered that the resolution denying
Mr. Kay’s permit be set aside and that Mr. Kay be allowed to
use his approved amateur antenna structure for commercial
purposes, subject to reasonable conditions. The court further
ordered that Mr. Kay is entitled to seek an award of damages,
1. No counsel for a party authored this brief in whole or in
part. No person or entity other than James Kay made a monetary
contribution to the preparation or submission of this brief. Petitioners
and respondents have consented to the filing of all amicus briefs;
their letters of consent have been filed with the Clerk of this Court
pursuant to Supreme Court Rule 37.3(a).
2
pursuant to 42 U.S.C. § 1983, but the damages claim and
Mr. Kay’s pending motion for attorney’s fees under 42 U.S.C.
§ 1988 have been stayed until June 2005, pending the Court’s
decision in this case.
Having spent several hundred thousand dollars to force
the City to permit that which federal law requires — and
having undergone treatment at the City’s hands that mirrors
that which the City accorded to Mr. Abrams ~— Mr. Kay has a
keen interest in the issue on which this Court has granted
certiorari. And Mr. Kay’s experience shows, if nothing else,
that Mr. Abrams’ case is not an isolated event. It has happened
twice within the past year in one city alone, and no doubt
has played out in other municipalities as well. Mr. Kay can
well speak — with the voice of his experience — to the issues
before the Court.
SUMMARY OF ARGUMENT
Both the City and amicus The National League of Cities
(NLC) argue that the Ninth Circuit erroneously upheld
Mr. Abrams’ right to seek relief under 42 U.S.C. § 1983 (and,
correspondingly, under 42 U.S.C. § 1988) because, in their
view, 47 U.S.C. § 332(c)(7) is essentially borrowed from
state zoning codes and such codes do not generally allow for
an award of damages or for attorney’s fees. Brief of
Petitioners at 41-45; Brief of the National League of Cities,
etc. (NLC Brief) at 7-23. The NLC, in particular, takes great
pains to identify every supposed significant similarity
between the review scheme established by the Congress in
Section 332(c)(7) — which similarities come down, in the
end, to the unremarkable provisions for a 30-day filing
deadline, a finality requirement, and application of long-
established administrative “substantial evidence” standard
3
— and then, in one huge leap, asserts that Section 332(c)(7)
must be construed to bar relief under Section 1983 because
“damages are traditionally unavailable” in state zoning
appeals. NLC Brief at 7-17.
The City and the NLC are attempting to create
Congressional intent from whole cloth, and then to bootstrap
that purported intent into an argument that an unambiguous
statute must be interpreted to bar a Section 1983 claim —
when the statute is utterly silent on any such intent. But they
cannot be heard to invent Congressional intent and to rewrite
an unambiguous statute in a manner that overcomes
established presumptions to the contrary.
STATEMENT OF THE FACTS
Mr. Kay adopts the Statement of the Facts in respondent’s
brief, insofar as that statement reflects the proceedings in
Mr. Abrams’ case. Because, as noted in the discussion of
Mr. Kay’s interest in these proceedings, the City meted out
to Mr. Kay treatment quite similar to that which it inflicted
upon Mr. Abrams — and did so after the district court in this
case had ruled in Mr. Abrams’ favor — a brief review of the
municipal permitting process, as that process was applied
on Mr. Kay’s application for his permit, may be illuminating
for the Court.’
On June 21, 2001, Mr. Kay applied to the City for a
Conditional Use Permit (CUP) to allow him to use his lawful
amateur antenna structure, located atop an unoccupied single-
2. Fhe appendix to this brief comprises the district court’s
order and an excerpt of the record on Mr. Kay’s application before
the City.
4
family residence, for commercial purposes. App. 8. Like
Mr. Abrams’ antenna, Mr. Kay’s antenna structure was
capable of transmitting and receiving amateur and/or
commercial radio frequencies, without alteration.
The City’s Senior Planner reported to the City’s Planning
Commission at the first hearing on Mr. Kay’s application
that the antenna structure previously had been approved for
non-commercial use and that the City’s staff recommended
approval of the CUP application. App. 10. The
Commissioners, however, voiced their inclination to impose
harsh conditions on the approval (CAR 1:39:0292) — and
ultimately voted to impose many of those conditions,
including, among other things: (i) reducing the approved
rooftop amateur structure from five to two masts, and limiting
those masts to amateur use only, in exchange for allowing
commercial use of interior antennas located in the house’s
master bedroom (CAR 1:39:0277-78); (ii) requiring Mr. Kay
(or another person) to use the presently unoccupied house as
a primary residence (CAR 2:42:0372); (iii) requiring Mr. Kay
“to agree to whatever shared use by third parties is requested
by the City,” i.e., Mr. Kay would be compelled to allow others
to operate commercially using antennas inside an occupied
residence (CAR 2:42:0368); and (iv) precluding Mr. Kay
frum using his driveway so that the driveway would always
be available for rare visits by service vehicles (CAR
2:42:0339).
The City Attorney eventually was moved to say that, “the
more we talk about this, the more uncomfortable I am with
it because . . . we are walking into a potential argument that
5
we are going too far,” in that the Commission was “walking
into a problem” — to which one Commissioner responded:
Well, but if he is going to sue us on the grounds
that he wants to really use the property for more
amateur antennas, fine. So be it. Then we will find
if this use maybe really is amateur. I mean my
inclination is if we have to allow commercial
structures all over the roof, and face more people
who come in like this guy [Mr. Kay] and Abrams
who lie to us and tell us that they are ham radio
buffs and they are really commercial operators,
my inclination would be to just deny all the
applications and tell them all to go to hell and let
them sue us.
(CAR 2:42:0358). App. 63-64.
Ultimately, the Planning Commission and the City
Council voted to grant the CUP, but subject to a total of 22
conditions, which conditions included provisions that denied
Mr. Kay the use of the rooftop antennas (and required him to
remove three of the existing five antennas). App. 8-12. In
granting Mr. Kay relief under Section 332(c) of the TCA,
the district court applied the “substantial evidence” standard
of 47 U.S.C. § 332(c)(7)(B)(iii) and held, in part:
When the Court considers that Kay’s five mast
structure had, by the time of the Council’s
decision, been lawfully in place for at least three
years, the City’s purported concerns are “too little,
too late.” What might have justified denial of
either a commercial or amateur application tn
1998 cannot justify denial when that same
6
structure has been accepted, however grudgingly,
by the community for at least three years. .... These
reasons are not sufficient today to justify removal
of three antennas.
** *& *
There is no evidence concerning which specific
“health, safety and welfare” concerns would
mandate removing three of five antennas,
especially when the record evidences no concerns
on these subjects raised during the previous
several years. To the extent that those concerns
relate merely to changing frequencies, the City
apparently concedes its inability to regulate in this
area.
x* * * &
The Court therefore finds the Council Resolution
requiring Kay to remove three of his five existing
antennas is not supported by “substantial evidence
contained in a written record.”
App. 21-23 (original emphasis). The court ordered the City
to issue its permit allowing commercial use of Mr. Kay’s
five-mast antenna structure. /d. at 24.’
3. As noted earlier, the court followed the Ninth Circuit’s
decision in this case, but the proceedings on damages and attorney’s
fees have been stayed pending this Court’s decision.
7
ARGUMENT
THE TELECOMMUNICATIONS ACT’S PROVISIONS
FOR JUDICIAL REVIEW OF LOCAL GOVERN-
MENTAL ORDERS DENYING REQUESTS FOR
PLACEMENT OF PERSONAL WIRELESS SERVICE
FACILITIES CANNOT BE CONSTRUED TO DENY
ACCESS TO RELIEF UNDER 42 U.S.C. § 1983.
A. The Analytical Framework.
Section 332(c)(7) of the Telecommunications Act of 1996
(TCA) establishes a limited federal right to seek review of
local zoning decisions on “the placement, construction and
modification of personal wireless facilities.” 47 U.S.C.
§ 332(c)(7)(A). Among other provisions, the statute requires
that a decision denying a permit request for wireless facilities
must be “in writing and supported by substantial evidence
contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iil).
An aggrieved applicant may seek review of a permit denial
(or a local government’s failure to act on a permit request)
in state or federal court, “within 30 days after such action,”
and the reviewing court “shall hear and decide such action
on an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v).
Neither petitioners nor their amici dispute that Section
332(c)(7)(B)(iii) creates a federal right, or that 42 U.S.C.
§ 1983 may be invoked to enforce a federal statutory right.
Nor does there appear to be a dispute that, as the Ninth Circuit
noted, Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094,
1096 (9th Cir.), cert. denied, 125 S. Ct. 26 (2004), this Court’s
precedent creates a rebuttable presumption that one who is
vested with a federal statutory right may ordinarily seek relief
under Section 1983. E.g., Blessing v. Freestone, 520 U.S.
8
329, 340-41 (1997). While the parties have addressed the
“comprehensive enforcement scheme” standard set forth in
Blessing, 520 U.S. at 341, Mr. Kay will focus on the
argument, primarily advanced by the NLC, that the purported
importation of state zoning law concepts into Section
332(c)(7) requires that the provision be read to bar relief
under Sections 1983 and 1988, thereby overcoming the
Blessing presumption.
The NLC purports to overcome the presumption by
superficially analyzing the procedural mechanisms
established by the Congress in Section 332(c)(7). NLC Brief
at 8-13. The NLC notes that Section 332(c)(7)(B)(v) imposes
a 30-day deadline for seeking judicial review of a local
government’s decision, and finds it significant that 30-day
time limits “have a venerable provenance in early zoning
law and continue to be widely used in state zoning law review
schemes.” NLC Brief at 8. Second, the requirement that
review be restricted to “final” decisions, 47 U.S.C.
§ 332(c)(7)(B)(v), is deemed by the NLC to be
significant because “[n]early every state review scheme is
identical, in that virtually all allow parties ‘aggrieved’ or
‘affected’ by a ‘final’ state administrative zoning or
permitting decision to challenge the decision in court.” Jd.
at 10 (citations omitted). Finally, NLC cites the very federal
right that it seeks to remove from Section 1983’s ambit,
Section 332(c)(7)(B){il1)’s requirement that zoning decisions
be “in writing and supported by substantial evidence
contained in a written record,” and asserts that this provision
reflects the Congress’s purported intent to import state zoning
law principles into the TCA’s judicial review mechanism,
because state courts generally apply a “substantial evidence”
test on judicial review of zoning decisions. /d. at 11-13.
9
From these utterly unremarkable similarities — as will
be set forth below, each cited provision can just as easily be
traced to non-zoning law — NLC asserts that “neither
damages nor attorney’s fees would constitute ‘appropriate
relief’ in actions brought under § 332(c)(7)(B)(v)” because
“damages are traditionally unavailable where a board of
adjustment or city council incorrectly denied a permit.”
NLC Brief at 17. But NLC’s construct is an unalloyed
contrivance. Fundamental statutory construction principles
bar NLC’s effort to create an otherwise non-existent
legislative history from extrinsic sources that have neither a
relation to any statutory language nor any basis in legislative
history.
B. Extrinsic Sources of Purported Congressional Intent
Have No Place in Construing an Unambiguous
Statute.
It is notable that NLC finds no ambiguity in Section
332(c)(7)(B)(v). NLC Brief at 7. Nor does the City. Brief of
Petitioner at 21-49. How it is that the NLC can turn to
extrinsic sources to elucidate legislative intent, including,
for example, model codes, state zoning laws, governmental
statistics and newspaper articles, is left unexplained. But
“(s]tatutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.” Engine Mfrs. Ass'n v. South Coast Air Quality
Memt. Dist., 541 U.S. 246, 124 S. Ct. 1756, 1761 (2004)
(citation omitted). Here, as in so many instances, it must also
end there.
“(I]t is axiomatic that ‘(t]he starting point in every case
involving construction of a statute is the language itself.’”
10
Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985)
(citation omitted). In the absence of ambiguity in the statutory
language, “there is no reason to resort to legislative history.”
United States v. Gonzales, 520 U.S. 1, 6 (1997) (citation
omitted). Thus, without statutory ambiguity, there is no basis
for consulting any extrinsic source, even one as well
recognized as legislative history.‘ Bereft of any evidence of
Congressional intent to import state zoning law — and some
concomitant limitations on awarding damages — into Section
332(c)(7)(B)(v), the City and the NLC turn, as previously
noted, to a bewildering array of state zoning statutes and
decisional law.
This Court, however, uniformly has rejected such efforts
to create legislative history. E.g., Pierce v. Underwood, 487
U.S. 552, 566-68 (1988) (Congressional intent in adopting
statute could not be drawn from committee report issued five
years after statute’s adoption, at time of amendment to statute;
report “would not suffice to fix the meaning of language
which that reporting Committee did not even draft”); Western
Air Lines v. Board of Equalization of South Dakota, 480 U.S.
4. Neither the City nor the NLC rests much of their argument
on the very terse legislative history that exists for Section
332(c)(7)(B)\(v). See Brief of Petitioners at 26, 38 n.12, 46 n.15;
NLC Brief at 7, 11. This is so, quite obviously, because that history
is utterly unilluminating, at least when it comes to addressing the
attempt by the City to add new provisions to Section 332(c)(7)(B)(v).
The Conference Report on the 1996 amendments to the TCA shows
only that the Congress viewed judicial review under Section 332(c)(7)
as an “appeal,” and stated that the “substantial evidence” standard
was to be construed as “the traditional standard used for judicial
review of agency actions.” H.R. Conr. Rep. No. 458, 104TH Cona.,
2p Sess. 208-09 (1996). As will be discussed infra, neither that history
nor Section 332(c)(7)(B)(v)’s text are of any assistance to the NLC’s
argument.
11
123, [30 n.* (1987) (sparse legislative history cannot be
augmented by “the creation of legislative history through the
post-hoc statements of interested onlookers”); Kelly v.
Robinson, 479 U.S. 36, 51 n.13 (1986) (rejecting argument
that statute should be interpreted to adopt federal appellate
court’s interpretation of Congressional language; while
“a few comments in the hearings . .. may suggest that the
language bears the interpretation . . . none of those statements
was made by a member of Congress, nor were they included
in the official Senate and House Reports”; Court “decline[d]
to accord any significance to those statements”) (citations
omitted). The NLC’s attempt to “creat[e] ... legislative
history,” Western Air Lines, 480 U.S. at 130 n.*, goes even
farther afield.
C. The City and the NLC Cannot Demand That the
Court Must Import State Zoning Law Limitations on
Awarding Damages on Appellate Review into Section
332(c)(7)(B)(v).
The NLC asks the Court to import state zoning statutes
that “grant local governments immunity from damages
liability for zoning decisions” and case law that bars such
damages, by virtue of the procedural similarities that the NLC
identifies between Section 332(c)(7)(B)\(v) and state zoning
procedures. NLC Brief at 17.° The indicia upon which the
5. The statutory provisions upon which NLC relies, NLC Brief
at 17 n.6, are state sovereign immunity statutes. ALa. Cope § 11-47-
190 (“[n]o city or town shall be liable for damages or injury done to
or wrong suffered by any person ..., unless such injury or wrong
was done or suffered through the neglect, carelessness or
unskillfullness of some agent . . . of the municipality engaged in work
therefor”); Cac. Gov. Cope § 818.4:
(Cont'd)
12
(Cont'd)
[a] public entity is not liable for injury caused by the
issuance, denial, suspension or revocation of, or by the
failure or refusal to issue, deny, suspend or revoke, any
permit ... or similar authorization where the public
entity .. . is authorized . . . to determine whether or not
such authorization should be issued, denied, suspended
or revoked.
Det. Cope Ann. Tit. 10, § 4011(b)(2) (“a governmental entity shall
not be liable for any damage claim which results from * * * [t]he
undertaking or failure to undertake any judicial or quasi-judicial act,
including, but not limited to, granting, granting with conditions,
refusal to grant or revocation of any license, permit, order or other
administrative approval or denial”); IbaAHo Cope § 6-904B(3):
{a] governmental entity and its employees while acting
within the course and scope of their employment and
without malice or criminal intent and without gross
negligence or reckless, willful and wanton conduct...
shall not be liable for any claim which * * * [a]rises out
of the issuance, denial, suspension or revocation of, or
failure or refusal to issue, deny, suspend or revoke a
permit, license, certificate, approval, order or similar
authorization.
S.C. Cope Ann, § 15-78-60(1)-(2) (“[t]he governmental entity is not
liable for a loss resulting from * * * legislative, judicial, or
quasijudicial action or inaction [or] administrative action or inaction
of a legislative, judicial, or quasi-judicial nature”); Tenn. Cope ANN.
§ 29-20-201:
all governmental entities shall be immune from suit for
any injury which may result from the activities of such
governmental entities wherein such governmental
entities are engaged in the exercise and discharge of any
(Cont'd)
13
NLC relies to reach this conclusion are far too slender to
support it.
First, the NLC relies on the 30-day time limit for seeking
relief under Section 332(c)(7)(B)(v). NLC Brief at 8-10.
The NLC’s exegesis of state zoning law notwithstanding, the
legislative history is absolutely silent on the derivation of
the 30-day time limit. The Court might as readily — and
perhaps more logically — assume that the Congress derived
the 30-day time limit from Rule 4(a)(1) of the Federal Rules
of Appellate Procedure. That the Congress elected to use such
a standard deadline hardly indicates an intent to import
wholesale all aspects of state zoning law procedure into
Section 332(c)(7)(B)(v).
Next, the NLC argues that the requirement of finality in
Section 332(c)(7)(B)(v) “emulates state judicial review
(Cont'd)
of their functions; statute affords “[c]omplete and
absolute immunity . . . for the free exercise and discharge
of the duties of . . . boards, commissions, authorities and
other governing agencies.
ed
But statutes granting sovereign immunity are of limited — if any —
utility in this analysis, because sovereign immunity may not be
asserted to shield a municipality or other local government from
liability under 42 U.S.C. § 1983. Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166-67
(1993); Howlett by and through Howlett v. Rose, 496 U.S. 356, 375-
81 (1990); Owen v. City of Independence, Mo., 445 U.S. 622, 650
(1980). The Congress could not conceivably have imported state
sovereign immunity statutes into Section 332(c)(7)(B)(v) to immunize
municipalities and other local governments from liability under
Section 1983, when this Court has so firmly established that no such
immunity extends to such entities under Section 1983.
14
provisions.” NLC Brief at 10. That may be true, but the
provision also “emulates” 5 U.S.C. § 551(13), under which
a denial of a requested license constitutes final agency action
that is subject to judicial review. Once again, the non-unique
requirement of finality before a court may review a lower
tribunal’s ruling is hardly an indicium of the intent that NLC
would have ascribed to the Congress.
Finally, the NLC relies on Section 332(c)(7)(B)(iii)’s
requirement of “substantial evidence” to support the local
government’s ruling. NLC Brief at 11-13. Once again, the
NLC overreaches. The “substantial evidence” standard of
review has long been established in federal law for judicial
review of agency action. Universal Camera Corp. v. National
Labor Relations Bd., 340 U.S. 474, 491 (1951). Its inclusion
in Section 332(c)(7)(B)(iii) hardly shows an intent to import
a body of state law. For that matter, the Congress’s use of
what is nothing more than a well-established standard for
judicial review says nothing about whether damages or
attorney’s fees should — or should not — be available when a
basis for such awards is shown.
What this brief analysis readily shows is that NLC cannot
ascribe to the Congress the intent to import state zoning law
concepts, on which the NLC’s effort to support a denial of
access to Section 1983 remedies entirely depends. This Court
has long looked with great care at construction arguments
derived from the Congress’s purported adoption of a
pre-existing state enactment:
The “general rule that adoption of the wording of
a statute from another legislative jurisdiction
carries with it the previous judicial interpretation
of the wording * * * is a presumption of legislative
15
intention * * * which varies in strength with the
similarity of the language, the established
character of the decisions in the jurisdiction from
which the language was adopted and the presence
of lack of other indicia of intention.”
Yates v. United States, 354 U.S. 298, 309 (1957) (citation
omitted).
In Shannon v. United States, 512 U.S. 573 (1994), the
Court applied that principle in addressing a criminal
defendant’s argument that the federal Insanity Defense
Reform Act, which was derived from a District of Columbia
statute, silently had imported the District’s requirement of a
special not guilty by reason of insanity verdict. /d. at 580-
82. The Court noted that the principle quoted above
“is merely a ‘presumption of legislative intention’ to be
invoked only ‘under suitable conditions.’” /d. at 581 (citation
omitted). And, despite a passage in the legislative history
indicating an intent to adopt the District’s procedure, the
Court refused to engraft that procedure onto the federal act:
We are not aware of any case ... in which we
have given authoritative weight to a single passage
of legislative history that is in no way anchored
in the text of the statute. On its face, the passage
Shannon identifies does not purport to explain or
interpret any provision of the [act]. Rather, it
merely conveys the Committee’s “endorsement”
of the [District’s] “procedure” — a procedure that
Congress did not include in the text of the Act.
To give effect to this snippet of legislative history,
we would have to abandon altogether the text of
the statute as a guide in the interpretative
16
process. . . . “[C]ourts have no authority to enforce
[a] principl[e] gleaned solely from legislative
history that has no statutory reference point.”
Id. at 583-84.
Here, there is no legislative history of any kind to support
the NLC’s attempt to read principles of state zoning law into
the statute.° “[I]n the absence of anything in the legislative
history indicating that [state decisions] were called to [the
Congress’s]} attention, we should not assume that Congress
was aware of them.” Yates, 354 U.S. at 310. And the purported
indicia of Congressional intent are simply far too
6. Contrary to the impression that is created in the NLC’s brief,
Section 1983 is available for aggrieved property owners whose
applications have been denied by local governmental boards under
circumstances that give rise to claims of a denial of due process or
equal protection. E.g., Eichenlaub v. Township of Indiana, 385 F.3d
274, 285 (3d Cir. 2004); Greenbriar Village L.L.C. v. Mountain Brook,
City, 345 F.3d 1258, 1263 (11th Cir. 2003); Harlen Assocs. v.
Incorporated Village of Mineola, 273 F.3d 484, 498-503 (2d Cir.
2001); Crider v. Board of County Comm'rs of County of Boulder,
246 F.3d 1285, 1289-90 (10th Cir.), cert. denied, 534 U.S. 890 (2001).
The Congress is, of course, presumed to have been aware of this
precedent. E.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-
85 (1988) (“[w]Je generally presumed that Congress is knowledgeable
about existing law pertinent to the legislation it enacts”) (citation
omitted). That presumption leads to two conclusions neither of which
is helpful to the City and the NLC: that the Congress saw nothing
incongruous about allowing Section 1983 relief to be sought by an
aggrieved landowner in a zoning dispute, and that the Congress
recognized that the admittedly stringent burden imposed upon a
landowner to make a claim for denial of due process or equal
protection should not be imposed upon a wireless operator who has
wrongfully been denied a permit by a local governmental board.
17
commonplace to infer, from their inclusion in Section
332(c)(7)(B)(v), that the Congress sought thereby silently to
import an entire body of state zoning law into the federal
statute.
Both the City and the NLC offer perfervid visions of
municipal devastation if the TCA is construed to allow
Section 1983 claims to be brought on Section 332(c)(7)
judicial review. They suggest that “thousands of local
governments” will either suffer fiscal losses and be unable
to spend appropriately on essential services or will surrender
their authority to consider citizens’ interests on wireless
facility applications. NLC Brief at 21-23. The City invokes
the menacing image of giant corporations raiding small
towns’ coffers to execute on “staggering” damage awards.
Brief for Petitioners at 31. These dramatic stances are perhaps
better suited to a Congressional committee hearing than they
are to legal arguments on a question of statutory construction.
But the City itself recognizes that, at the present time,
more than 90 percent of cellular tower applications are
approved by local governments, usually within 60 days.
Id. at 32 n.10. Allowing those applicants whose applications
are wrongfully denied to seek damages and fees under
Sections 1983 and 1988 will hardly ruin municipalities across
the country. But taking away Section 1983 remedies will most
surely embolden irresponsible local governments to act just
as the City did on Mr. Kay’s application. When an applicant
must spend untold thousands of dollars to obtain that which
the TCA guarantees, because a local government has acted
in violation of Section 332(c)(7)(B)’s commands, the
Congress cannot have intended that ordinary remedies
available under federal law should be denied. There is
certainly nothing in Section 332(c)(7)(B) that supports such
a draconian result, and nothing in the construction arguments
offered by the City that would warrant it.
CONCLUSION
The judgment of the Court of Appeals should be
affirmed.
RuBerT J. KELLER
Law OFFICES OF
Rosert J. Kevcer, P.C.
P.O. Box 33428
Farragut Station
Washington, D.C. 20033
(202) 223-2100
GLENN S. McRoBerts
Tom MACIEJEWSKI
TRUTANICH - MicHet, LLP
Port of Los Angeles Office
407 North Harbor Boulevard
San Pedro, CA 90731
(310) 548-0410
Respectfully submitted,
Barry RICHARD
Counsel of Record
GREENBERG TRAURIG, P.A.
101 East College Avenue
Tallahassee, FL 32302
(850) 222-6891
Ex.uiot H. SCHERKER
GREENBERG TRAURIG, P.A.
1221 Brickell Avenue
Miami, FL 33131
(305) 579-0500
Counsel for Amicus Curiae
APPENDIX
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tc Rs ae | | : DATED JULY 12, 2004 AND
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Aes ee * 3 UNITED STATES DISTRICT COURT
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Shaye a S : ‘ re d
CASE NO. CV 02-3922-DSF(RZx)
Do OS Sa aes : JAMES A. KAY, JR, JAMES A. KAY, JR. dba LUCKY’S
Bee Se Gs) | TWO WAY RADIO, COMMUNICATIONS RELAY
CORPORATION, a California corporation,
Plaintiffs and Petitioners,
VS.
CITY OF RANCHO PALOS VERDES, a Municipality,
CITY OF RANCHO PALOS VERDES PLANNING
COMMISSION and its members, FRANK LYON, LARRY
CLARK, JON CARTWRIGHT, THOMAS LONG, CRAIG
MUELLER, THEODORE PAULSON, and DONALD
VANNORSDALL; CITY OF RANCHO PALOS VERDES
CITY COUNCIL and its members, JOHN MCTAGGART,
DOUGLAS STERN, PETER GARDINER, BARBARA A.
FERRARO, and DOUGLAS STERN,
Defendants and Respondents.
2a
Appendix A
OPINION AND ORDER AFTER COURT TRIAL
I. INTRODUCTION
Petitioner James A. Kay (“Kay”)' seeks rulings from this
Court in what he has described as three general areas:
(1) whether the Conditional Use Permit decision should be
vacated for lack of substantial evidence; (2) whether the
Respondents’ actions violated his constitutional rights; and
(3) whether the Respondents’ new antenna ordinance is
invalid.
A. The CUP Decision
Kay seeks an order vacating a Conditional Use Permit
(“CUP”) decision adopted by Respondents, City of Rancho
Palos Verdes, et al. (the “City”) in alleged violation of the
Telecommunications Act of 1996 (“TCA”), and a writ of
mandate requiring the City to permit Kay to operate
commercially using an existing amateur antenna structure.
Kay is licensed by the Federal Communications Commission
(“FCC”) for both amateur and commercial operations, and
the antenna structure is capable of transmitting and receiving
both amateur and commercial radio frequencies.
The question presented by Kay is whether the City can
bar Kay from using a lawful amateur antenna structure where
the only difference between amateur operations and the
proposed commercial operations is the radio frequency
1. Kay sues on his own behalf and “dba Lucky’s Two Way
Radio.” Communications Relay Corporation, an entity about which
this Court has received no information, is also named as a Plaintiff.
3a
Appendix A
utilized. Kay relies almost exclusively on the unpublished
decision of another judge of this Court, which vacated a CUP
decision in what Kay contends is an almost identical case:
Abrams v. City of Rancho Palos Verdes, CV 01-9071-SVW
(Order dated and filed January 9, 2002) (“Abrams”’).’
B. The Claimed Violations of Kay’s Constitutional
Rights
Kay also contends the City violated his constitutional
rights. He asks this court to “delve into the administrative
record, and beyond, to see for itself the animosity, bias and
sometimes outrageous abuse of power by City Planning
Commissioners and Council Members.” Kay admits the CUP
decision “naturally contains few express statements of bias,
discrimination or improper motives, elements required to
prove Kay’s other claims.” Kay’s Opening Brief at 2. In order
to establish his claims, Kay sets forth what he contends are
“some of the more egregious acts and comments of the City,”
asking the Court to conclude “that the City falsely accused
Kay of lying, abhorred Kay and his antenna structure, and
openly used the CUP process to hold Kay hostage to the City’s
often absurd, and in some cases unconstitutional, demands
(e.g., forcing him to rent his property).” Kay’s Opening Brief
at 3.
2. Though this Court (unlike the Ninth Circuit) has no local
rule prohibiting the citation of unpublished decisions, none is
necessary, as district court opinions have no binding effect.
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4a
Appendix A
C. Validity of Ordinance 374U and the New Antenna
Regulations
Finally, Kay contends that Urgency Ordinance 374U
(“374U”), passed March 11, 2002, is invalid and violated
numerous statutory and constitutional rights because its
retroactive provisions allegedly affected only Kay. He further
argues 101 F.C.C. 2d 952, 50 Reg. 38, 813 (1985) (“PRB-1”)
preempts the City’s amateur antenna regulations, as amended
by 374U and applied to Kay, because the City failed
reasonably to accommodate his amateur radio operations, and
the regulations do not represent the minimum practicable
means to accomplish the City’s legitimate goals. In doing so
he asks the Court to rely on expert testimony given after the
decision was made. Both Kay’s expert and the City’s expert
agreed that limiting Kay to two antennas would not be a
reasonable accommodation. 374U, however, allows an
applicant to request additional antennas, and the City agrees
Kay would be allowed at least five. City’s Trial Brief at 46.
D. The Trial
The TCA provides that “[a]ny person adversely affected
by any final action or failure to act by a State or local
government or any instrumentality thereof... may, within
30 days after such action or failure to act, commence an action
in any court of competent jurisdiction. The court shall hear
and decide such action on an expedited basis.” 47 U.S.C.
§ 332(c)(7)(B)(v). The parties agreed to a Court trial in the
administrative record as supplemented by expert testimony’
3. The Court initially permitted expert testimony as to certain
issues. The Court did not rely, however, on any of the proffered
testimony in reaching its decision.
Sa
Appendix A
which was held May 11, 2004. Pursuant to Rule 52 of the
Federal Rules of Civil Procedure, the following constitutes
this Court’s findings of fact and conclusions of law.
Il. FACTS
A. Events Preceding Approval of the Five Mast
Antenna for Amateur Use
In 1994 Kay purchased a two-story, single-family
residence at 26708 Indian Peak Road in the City of Rancho
Palos Verdes. AR 3:66:792 [lines 11-12].* The neighborhood
is single-family residential. AR 1:30:115. It is undisputed
that either Kay nor anyone else has lived at the property since
Kay purchased it. See AR 3:66:792 [lines 18-24]. When
purchased, the Property had two rooftop antennas.
AR 3:66:792 [lines 12-14]. Kay contends he used the
antennas for amateur purposes, while the City contends he
also used them for commercial purposes.
On December 7, 1994, Kay wrote a letter to the FCC
authorizing use of commercial frequencies for which he was
licensed, including 852.9625 MHz, at a base station at his
property in Rancho Palos Verdes and at the Getty Museum
Center. AR 4:76:1182. Kay contends he “forgot” about this
letter. /d. at 1164.
In January 1997, the City sent Kay a notice of violation
relating to the use of his rooftop antennas for commercial
4. References to the certified administrative record are indicated
by “AR volume no.:tab no.:page no.”
6a
Appendix A
purposes without a CUP. AR 2:56:432 [lines 25-28]. Kay
denied any commercial use. AR 2:56:433 [line 9].
In April 1998, Kay installed in an upstairs bedroom
antennas for commercial use. AR 2:56:433 [line 20] - 434
[line 2]. Kay contends in his trial brief that he believed the
operation of interior antennas was permissible without
approval because they were “located in the upstairs master
bedroom, out of public view, and had no effect on surrounding
properties.” Kay’s Opening Brief at 8.° Kay asserts the indoor
antennas were connected to their own transmitter and the
rooftop antennas remained connected to their own amateur
band radio facilities, i.e., they were separate communications
facilities. AR 3:66:793-94 [20-28].
By August 1998, Kay had installed three additional
antennas on his roof, for total of five rooftop antennas.°®
On August 5, 1998, Kay filed an application with the City
for approval of the “existing antenna array” on the roof for
non-commercial purposes. See AR 1:30:114 [first paragraph].
Staff approved Kay’s application on October 22, 1998.
See AR 1:30:114 [first paragraph]. On November 4, 1998,
before the 15-day appeal period was to expire, the City
Council adopted Urgency Ordinance No. 341U, placing a
moratorium on the processing of all antenna applications,
5. Though the brief cites to Kay’s declaration for support, the
declaration does not contain such an assertion. :
6. It is not clear when these antennas were first erected. Kay
contends that he replaced the original antennas with the five mast
structure at issue “shortly” after purchasing the house. Kay’s Opening
Brief at 7.
7a
Appendix A
including Kay’s. AR 2:43:376 [J 1 and 2]. Kay suggests he
was the only person who had had his Site Plan approved and
was simply waiting for it to become final. The City contends
one or two other applications also were stayed by the
moratorium. Fox Depo., City’s Trial Brief, Ex. B, at 71:15-18.
On March 16, 1999, the City adopted Ordinance No. 345,
amending its amateur and commercial antenna regulations.
On April 16, 1999, the moratorium was lifted and the new
regulations went into effect. The ordinance clarified the
definition of “antenna support structure” as a vertical
structure. Rancho Palos Verdes Municipal Code (“RPVMC’”’)
§ 17.96.120. The ordinance also created a category of amateur
antennas exempt from the City’s permitting requirements,
specifically: “[o]ne (1) building mounted antenna assembly
which does not exceed twelve feet (12) in height ... and
which contains radiating elements, each of which
does not exceed six (6) feet in length.” RPVMC
§ 17.76.020(C)(3)(c)(ii). The term “antenna assembly” was
defined in the ordinance as “the totality of equipment used
to support reception by or transmission from an antenna.
It includes the antenna(s), . . . antenna support structure(s),
and any radiating elements. . . .” RPVMC § 17.96.087. Thus,
the ordinance exempted from City regulation one roofiop
mounted vertical antenna support structure not exceeding
twelve feet in height with horizontal radiating elements not
exceeding six feet in length.
At some point before June 2001, Kay mounted a
horizontal antenna support structure from which his five
antennas would extend. See AR 1:2:3 [project description];
AR 1:36:210 and 212. The Code at the time also provided
8a
Appendix A
that two amateur antenna support structures were allowed
per lot. RPVMC § 17.76.020(C)(1)(a).
Kay contended that because his antenna support structure
was horizontal, he could add as many vertical poles as
possible as long as they did not exceed twelve feet in height.
See AR 1:34:208. Because Kay had attached five vertical
poles to his horizontal antenna assembly before Ordinance
No. 345 was adopted in March 1999, the City notified Kay
on July 7, 1999 that he was “technically correct” that those
five vertical poles, if used only for amateur purposes, were
exempt from the City’s permitting requirements.
AR 2:56:438.
B. Kay’s CUP Application and the Planning
Commission Actions
On June 21, 2001, Kay applied for a CUP (“CUP 230”)
to use his existing rooftop amateur antenna structure for
commercial purposes. AR 1:2:3-40.
The initial Staff Report from Senior Planner Fox (“Fox”)
to the Planning Commission, dated October 23, 2001,
presented proposed findings and recommended that CUP 230
be conditionally approved. AR 5:89:1386-1394. The
“Conclusion” of the Report states: “Based on the discussion
presented above, Staff believes that all of the required
findings for the approval of the proposed project can be made.
In addition, Staff believes that the conditional approval of
the proposed project is consistent with the City’s Wireless
Communications Antenna Development Guidelines and the
Telecommunications Act of 1996. Therefore, Staff
9a
Appendix A
recommends adoption of P.C. Resolution No. 2001-_,
conditionally approving Conditional Use Permit No. 230.”
AR 1:30:125.
At the October 23, 2001 Planning Commission meeting,
the commissioners, based on information in the Staff Report,
concluded that Kay had lied about his commercial use of the
antennas. E.g., AR 1:32:195.
On November 7, 2001 Kay hand-delivered a letter to Fox
referencing “Conditional Use Permit No. 230 and
Environmental Assessment No. 744 - 26708 Indian Peak
Road.” The letter attaches “corrected project plans” which
Kay asserted had been corrected “to accurately reflect the
project as it was originally described on the site plan, and as
it currently exists on the project site.”’ The letter further
states: “It is our understanding that the 20 existing antenna
elements are permitted by right, and that this correction will
not materially change the nature of the project as originally
proposed, which requests to convert the 20 existing roof-
mounted antennas to be used for commercial purposes.”
AR 1:33:205.
The November 13 Staff Report again recommended that
Kay be permitted to use his five mast antenna structure for
commercial purposes, while maintaining the position that
commercial operations were conducted at the property.
AR 1:37:217. The report also notes the addition of some
antenna masts. The City planners resubmitted a draft
resolution granting Kay’s CUP application for the five mast
7. Kay admitted, Kay’s Opening Brief at 35, that Kay’s actions
in erecting the additional masts were “provocative.”
10a
Appendix A
structure, but added a new condition (condition No. 12) that
Kay remove the later added antenna masts. AR 5:90:1403.
At the November 13, 2001 Planning Commission
meeting Fox advised the commission that the five mast
structure had been permitted for non-commercial use, and
again recommended approval of the CUP. AR 1:39:231-32.
City Attorney Lynch advised of a potential problem under
the Telecommunications Act and PRB-1. AR 2:42:358.
On November 15, 2001, the Planning Commission issued
Resolution 2001-43, “A Resolution of the Planning
Commission of the City of Rancho Palos Verdes Approving
Conditional Use Permit No. 230, Thereby Approving the
Commercial Use of Interior Antennae and Related Support
Structures and Equipment on the Site of a Single-Family
Residence Located at 26708 Indian Peak road in the
Grandview Community” (the “PC Resolution”). The PC
Resolution addresses only the five mast structure.*
AR 2:43:378-379. Though framed as an “approval,” Kay
correctly notes that the PC Resolution effectively denied
commercial use of his outdoor antennas and required him to
remove three of the previously approved “amateur use”
antennas from his roof as a condition of being permitted to
use his interior antennas commercially. AR 2:43:379 (Finding
1 B), 384-388. The PC Resolution posed a total of
22 conditions to commercial use.’ /d.
8. While Kay repeatedly impliedly suggests there was some
impropriety in this failure, he has submitted nothing to suggest that
he properly amended the application or otherwise was entitled to
have the City consider these additional antennas.
9. Kay’s contention that all conditions had to be accomplished
(Cont'd)
lla
Appendix A
C. Kay’s Appeal and the City Council’s Actions
Before the City Council received Kay’s appeal brief,
AR 2:56:416-461, the Abrams decision was issued. On March
11, 2002, before the Council’s first full hearing on Kay’s
appeal, the City enacted Urgency Ordinance 374U, amending
its antenna regulations. RPVMC § 17.76.020 (“374U");
AR 3:64:641-43.
At the March 19, 2002 City Council meeting Fox
recommended that the five mast structure be approved. The
Council continued to question Kay’s credibility. AR 4:69:993.
The March 25, 2002 Memorandum from the Director of
Planning recommended that the City modify the PC
Resolution to permit Kay’s commercial use of the five mast
structure based on the City’s previous indication that it was
exempt from 374U, AR 4:72:1023, 4 1, but continued to
question Kay’s credibility. The Report included a section in
its “finding of facts” which concluded, “Accordingly, the City
Council finds that the appellant’s arguments — that these
additional vertical support structures and antenna are amateur
antennae that previously were exempt from City regulation
and that the roof-mounted antenna support structure and array
has not been materially altered — to be without merit or
credibility.” AR 4:72:1034-35.
(Cont'd)
within 90 days, Kay’s Opening Brief at 17, is incorrect. The
Conditions of Approval he cites for this proposition state only that
Kay must, within 90 days, confirm in writing that he has read and
understood these conditions, and agrees to them — not that he has
comrz':ted them. AR 2:43:384.
l2a
Appendix A
At the March 25, 2002 City Council hearing, the City
Attorney agreed with Kay’s assertions that transmissions with
Getty had not been activated. There was, however, some form
of agreement between Kay and Getty. AR 4:75:1129.
On April 16, 2002, the City Council issued Resolution
2002-27, “A resolution of the City Councii of the City of
Rancho Palos Verdes Approving Conditional Use Permit No.
230, Thereby Approving the Commercial Use of Interior
Antennae and Related Support Structures and Equipment on
the Site of a Single-Family Residence Located at 26708
Indian Peak Road in the Grandview Community (the
“Council Resolution”). AR 5:84:1329-1344.
Ill. ANALYSIS
A. The Telecommunications Act
When enacting the TCA, Congress unquestionably
intended to preserve the traditional local control over land
use regulations. 47 U.S.C. § 332(c)(7)(A) provides: “Except
as provided in this paragraph, nothing in this chapter shall
limit or affect the authority of a State or local government
... over decisions regarding the placement, construction, and
modification of personal wireless service facilities.” Nearly
every case addressing claims similar to Kay’s has found in
favor of the government agency denying the request. Indeed,
the only authority Kay was able to cite in support of his
position was Abrams, which Kay must, and does, admit is
not binding, and which the City contends was based on
different facts in any event.
De eee
13a
Appendix A
Kay asks this Court to find that the decision to deny
commercial use of a pre-existing amateur antenna structure
was not supported by substantial evidence as required by
47 U.S.C. § 332(c)(7)(B)(iii).'° He does not contend that his
antenna structure is aesthetically pleasing, or even that it
conforms to the City’s present regulations. He contends only
that the City cannot justifiably raise the issue of aesthetics
now, when Kay’s only request is to change the frequency of
his transmissions from an already existing lawful structure.
The Court agrees.
1. Burden of Proof
Circuit courts addressing this issue have thus far been
consistent in their determination that the burden is on the
applicant to show that the local government’s decision is not
supported by substantial evidence. E.g., Voicestream
Minneapolis v. St. Croix County, 342 F.3d 818, 830 (7 Cir.
2003); Am. Tower LP v. City of Huntsville, 295 F.3d 1203,
1207 (11" Cir. 2002); Southwestern Bell Mobiie Systems, Inc.
v. Todd, 244 F.3d 51, 63 (1" Cir. 2001). The Ninth Circuit as
not yet addressed the issue. The only dis*rict court in
California to resolve the issue in a reported decision has also
held that the burden rests with the party challenging the local
decision. See MetroPCS, Inc. v. City and County of San
Francisco, 259 F. Supp. 2d 1004, 1009-1010 (N.D. Cal.
2003). This Court sees no reason to depart from this
substantial and persuasive body of authority. Therefore, the
10. As the Court finds in favor of Kay on this issue, it declines
to decide whether the City also “unreasonably discriminate[d] among
providers of functionally equivalent services” in violation of the TCA.
See 47 U.S.C. § 332(c)(7)(B)(i)(1).
l4a
Appendix A
Court concludes that Kay bears the burden of establishing
that the Council's resolution is not “supported by substantial
evidence contained in a written record.”
2. The “Substantial Evidence” Standard of
Review
In the context of the TCA, “[t]he ‘substantial evidence’
standard of review is the same as that traditionally applicable
to a review of an administrative agency’s findings of fact.
Judicial review under this standard ... is narrow.” Second
Generation Props. L.P. v. Town of Pelham, 313 F.3d 620,
627 (1" Cir. 2002) (citation omitted). “The substantial
evidence test is highly deferential to the local board.” /d.
“The City’s decision will be considered supported by
substantial evidence if the record contains ‘such relevant
evidence as a reasonable mind might accept as adequate to
Support a conclusion.’” MetroPCS, 259 F. Supp. 2d at 1010,
citing Preferred Sites, LLC v. Troup County, 296 F.3d 1210,
1218 (11" Cir. 2002). This standard requires “more than a
scintilla of evidence but less than a preponderance” Airtouch
Cellular v. City of El Cajon, 83 F. Supp. 2d 1158, 1164 (S.D.
Cal. 2000) (citation omitted). “The court must review the
entire record as a whole in making its determination,
including all evidence unfavorable to the agency’s position.”
Id. (citation omitted). “If any one ground provided by the
City is supported by substantial evidence, the [City’s
decision] is proper.” MetroPCS, 59 F. Supp. 2d at 1010.
“(T]he possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence.” Second Generation Properties, 313 F.3d at 627
(citation omitted).
lSa
Appendix A
In evaluating the City’s decision here, “the [City’s local]
zoning laws govern the weight to be given the evidence.”
MetroPCS, 259 F. Supp. 2d at 1010 (citation omitted). “The
City’s interpretation of its own zoning laws ‘is entitled to
great weight and should be respected by the court unless it is
clearly erroneous or authorized.’” /d., citing Carson Harbor
Village, Ltd. v. City of Carson, 70 Cal. App. 4th 281, 290
(1999).
3. The Council Resolution Is Not Supported by
Substantial Evidence
Kay’s claim for violation of the TCA (and for a writ of
mandate under California Code of Civil Procedure section
1094.5) depends on Kay’s ability to prove that the Council
Resolution was not supported by substantial evidence.
Though it is unusual to consider this issue in the context of a
municipal action “approving” a CUP with conditions rather
than denying the CUP altogether, the City has suggested no
reason that the analysis should be substantively different.
Therefore the Court simply considers whether the Council
Resolution, as issued, is supported by “substantial evidence
contained in a written record.””''
Kay contends that there is no adverse impact associated
with operating on commercial frequencies using existing
amateur antenna structures, and thus no substantial evidence
11. As alluded to previously, Kay sought to provide additional
evidence by way of expert testimony, and the City objected. The
Court admitted the expert testimony, but did not find it necessary or
appropriate to rely on that testimony in reaching its decision.
16a
Appendix A
to support any decision barring such use. The City contends:
“Kay’s use of his rooftop antennas for commercial purposes
long before he applied in 2001 for a CUP is critical to
determining whether the City properly conditioned the CUP
on the removal of three of the five antennas. ... Had the
City known that Kay was really using the antennas for
commercial purposes from the outset. . . the City would have
required Kay to apply for a CUP before erecting those
antennas. Thus, the City’s requirement here that Kay remove
three of his five antennas is no different than if Kay had
originally applied to erect five antennas for commercial use,
and the City permitted only two.” City’s Trial Brief at 21.
Thus, the City does not dispute that Kay’s five mast antenna
structure was approved for amateur use before Kay filed his
CUP application." It simply contends that it should be placed,
for purposes of this Court’s analysis, in the position it would
have been in if it had known at the time of Kay’s original
application, that he intended to use the five antennas for
commercial purposes.
But the City provides no legal support for this position.
Even if the Court were to assume that Kay lied — or that the
City’s belief that he lied was reasonable — that does not,
a priori, suggest that the City can retract its prior approval
of the five mast structure. Neither body of law — that relating
12. Kay contends that his actual CUP application was for use
of a 20-mast structure, including 15 masts erected after June 1, 2001.
Kay has not established this to the Court’s satisfaction. In any event,
the City did not consider these additional masts in its analysis and
“findings of fact” when it reviewed Kay’s application. See, e.g.,
AR 2:43:378-79 [Section 1(A)]. The Court therefore addresses the
approved five mast structure.
17a
Appendix A
to amateur use of antennas or that relating to commercial
use — even suggests that veracity of the applicant is a relevant
factor. The Court has not been cited to any authority
concerning PRB-1, which applies to applications for amateur
use, that discusses the veracity of the applicant or the impact
of the applicant’s actual or potential intention to use the
antennas for commercial purposes in the future. Therefore,
it is not clear why the City’s decision would have been
different.
While the Court can understand the City’s concern that,
in the wake of Abrams, it now must consider applications
for amateur antenna structures even more carefully, there is
no basis to conclude that the Court can retroactively imprint
that concern onto this decision — at least as it relates to the
five mast structure.
The City urges that the Court “decline Kay’s invitation
to follow Abrams without acknowledging the factual
distinctions that compel a different result.” City’s Trial Brief
at 21. The Court agrees that there are significant differences
between this case and Abrams, and fully recognizes that
Abrams is not binding. In Abrams, for example, Judge Wilson
accepted the City’s contention that 12.5 feet of Abrams’
antenna violated the original permit. Here, the City claims it
would never have allowed Kay to put five commercial
antennas on his roof had it known of his true purpose
(in other words he only received a permit for those five
because he intended to use them for amateur purposes). The
findings in Abrams regarding the alleged improper use,
however, show a stark contrast to the facts here. Regarding
Dey Dn?
18a
Appendix A
the City’s contention that it could require Abrams to reduce
the size of his antenna structure, Judge Wilson found:
The first reason indicated above, that the use
contradicts the original purpose of [the] 1990
permit, is immaterial. The record does not indicate
that the denial of the CUP would require Plaintiff
to remove the antenna, or reduce the height to
40 feet, so the denial of the permit would only be
an act of spite by the community.
Abrams at 10:25 to 11:3.
Here, the City is taking precisely the position that it
apparently failed to take in Abrams — that it would require
Kay to limit his (visible) use of antennas to the amateur use
previously allowed, i.e., two antennas.
The Court is not persuaded, however, by the City’s
argument that “[t]he real question is whether the City
originally could have permitted erection of only two rooftop
aritennas for commercial purposes.” City’s Trial Brief at 21.
The Court instead chooses to do what it believes the law
compels — decide this case based on the record before it,
i.e., the administrative record before the City Council in
August 2001.
The Court now turns to that administrative record to
determine the reasons for the Council Resolution to the extent
that it requires Kay to remove three of his five antennas —
and to determine whether those reasons are supported by
“substantial evidence contained in a written record.’
19a
Appendix A
The City groups the findings supporting the Council
Resolution into three categories. First, the City contends that
its “findings were designed largely to retain the residential
character of the surrounding single-family neighborhood and
to reserve aesthetics atop the Palos Verdes peninsula.” City’s
Trial Brief at 17. The City correctly notes that “(nJothing in
the Telecommunications Act forbids local authorities from
applying general and nondiscriminatory standards derived
from their zoning codes.” Aegerter v. City of Delafield, 174
F.3d 886, 891 (7" Cir. 1999). Moreover, “aesthetic harmony
is a prominent goal underlying almost every such code.” /d.
The City of Ranchos Palos Verdes is no exception. The City
cites to code provisions designed to address aesthetics.
E.g,. RPVMC § 17.76.020(A)(11)(a)(ii). With these concerns
in mind the Council Resolution contains the following
findings: (1) there was inadequate foliage to “screen any
antenna support structures or antennae on the roof of the
structure from view from any surrounding residences .. . ,”
thus requiring reduction to two masts to “maintain the
appearance of the structure as a singie-family residence, and
to integrate the commercial use into the residential
neighborhood,” AR 5:84:1332 [Section 1B]; (2) “conversion
of the existing antennae to commercial use constitutes
intensification of the use that benefits the applicant
financially but . . . does not offset the visual impacts of the
antenna array upon the surrounding neighborhood,” AR
5:84:1333 [Section 1D]; (3) the conditions imposed are meant
to prevent the commercial use of the property from
exacerbating the substandard condition of the residence, and
ensure use consistent with the General Plan, AR 5:84:1334
[Section 1 F]; (4) the conditions imposed are meant to protect
the “health, safety and general welfare,” AR 5:84:1334-35
20a
Appendix A
[Section 1H]; and (5) the removal of the antennas will
“balance the aesthetic impacts of the antennae upon the
neighborhood with the applicant’s financial benefit.”
AR 5:84:1336 [Section 4].
The Court declines to adopt Kay’s suggestion that the
City’s obvious disdain for the proliferation of antennas
detracts from the reasonableness of its decision. Indeed, all
aesthetic requirements arise from the relevant agency’s
dislike — or that of its constituents — for certain visual
features, and preference for others. That the City Council
members heed the reasonable desires of residents to maintain
certain standards establishes that they are acting as voters
expect elected public officials to act. This should not
result in blanket condemnation by the Courts. It is only proper
for a court to intervene when the City impermissibly
crosses the boundaries established by the TCA. See 47 U.S.C.
§ 332(c)(7)(A) and (B).
The Court also declines Kay’s invitation to conclude that
the “real reason” the Council denied his request was due to
hostility toward Kay; to punish him for “fighting-City Hall”;
to punish him for adding 15 additional masts to his structure,'’
to punish him for referring to his litigation with the City as
“cheap theater” in a press interview, etc. While these factors
most certainly did not endear Kay to his neighbors or the
13. Kay claims that after he realized the City was intent on
preventing his commercial operations, he decided to “maximize his
amateur station and experiment with it,” but the City then responded by
changing the law and making it retroactive to render those masts illegal,
after-the-fact. The Court does not accept Kay’s characterization in light
of the record before it.
2la
Appendix A
Council members, as discussed below, the Court believes
there was “substantial evidence contained in a written record”
of valid aesthetic reasons for denying Kay’s request that
would have been sufficient had Kay not already received
permission to have the five mast structure. As noted above,
however, the Court believes it must consider the record as a
whole as it stood at the time Kay applied for CUP 230 -- that
is, with the approval of the five mast structure as it then
existed. When the Court considers that Kay’s five mast
structure had, by the time of the Council’s decision, been
lawfully in place for at least three years,'* the C ity’s purported
concerns are “too little, too late.” What might have justified
denial of either a commercial or amateur application in 1998
cannot justify denial when that same structure has been
accepted, however grudgingly, by the community for at least
three years. (As one planning commissioner noted, there are
other methods of code enforcement that may be available to
address these matters.) These reasons are not sufficient today
to justify removal of three antennas.
Kay contends that the foliage (and the degree to which
it does or does not address the City’s aesthetic concerns) is
the same regardless of whether the lawful five mast structure
transmits and receives amateur or commercial frequencies.
Kay is correct. There is no indication in the record that the
foliage existing at the time Kay’s five mast structure was
found to be exempt had died or otherwise changed. In the
absence of such evidence, the record does not contain
“substantial evidence” to support the Council’s finding. (Even
SS --—-s —_————
14. As previously indicated, it is not clear when the five mast
structure was erected, but it was no fewer than three years before the
Council Resolution and two years before the PC Resolution.
22a
Appendix A
with such evidence, the more appropriate remedy might have
been a condition that it be replaced considering that the five
mast structure was exempt.)
There is no indication, either in the record or the City’s
Trial Brief, of what the Council meant by “intensification of
use” -- at least as it would relate to any visual impact different
from that existing in June 1999, when the City confirmed
that Kay’s five mast structure was exempt. This finding is
vague and unsupported.
There is no evidence concerning which specific “health,
safety and welfare” concerns would mandate removing three
of five antennas, especially when the record evidences no
concerns on these subjects raised during the previous several
years. To the extent that those concerns relate merely to
changing frequencies, the City apparently concedes its
inability to regulate in this area. See AR 5:84:1337-38
[Section SC}.
As to “balancing the aesthetic impact with financial
gain,” there is no explanation in the record as to what
legitimate concerns the City might have been addressing, or
how the balancing might be accomplished. For example, it’s
not clear whether more antennas would be allowed if Kay
could make a /ot of money from them (and therefore his loss
would be great), or if he could make only a small amount
from them (and therefore his loss would be so minimal that
the City’s concerns about aesthetics would weigh in the City’s
favor). In any event, considering that the aesthetics, such as
they were, had already been in place for years, there is no
particular logic in allowing the City to change the rules as to
23a
Appendix A
existing lawful antennas simply because Kay now might
profit from those antennas. No evidence supports this finding.
The City’s next category of findings relates to Kay’s use
of the residence as an “antenna facil ity.” City’s Trial Brief at
18. This concern is closely tied with the City’s third category:
that Kay lied when he stated that he did not use his exterior
antennas for commercial use. City’s Trial Brief at 19. Notably,
Section 2 of the Council Resolution focuses on Kay's
commercial use and lack of credibility. AR 5:84:1335
[Section 2]. Despite the amount of space devoted to this issue
in the briefs -- and Kay’s vehement protestations of honesty,
supported mostly by his own declarations, this Court is unable
to conclude whether Kay has always been open and honest”
with the City with regard to when his commercial use began.
_As indicated previously, however, the Court cannot find any
legal support for denying Kay’s application, even if he had
intentionally misled the City on this issue.
The Court therefore finds the Council Resolution
requiring Kay to remove three of his five existing antennas
is not supported by “substantial evidence contained in a
written record.”
B. The Improper CUP Decision Warrants A Writ of
Mandate Under California Code of Civil
Procedure § 1094.5.
Review of planning commission proceedings regarding
a conditional use permit is appropriate under Code of Civil
Procedure section 1094.5. Scott v. City of Indian Wells, 6
Cal. 3d 541, 546 (1972). As with the TCA, the standard of
24a
Appendix A
review is “whether substantial evidence supports the
administrative agency’s findings and whether the findings
support the agency’s decision ... in light of the whole
record.” Topanga Assn. for a Scenic Community v. County
of Los Angeles, 11 Cal. 3d 506, 514-15 (1974).
Therefore, for the reasons described above, a writ of
mandate shail issue requiring that the City permit commercial
use of Kay’s five mast antenna structure subject to appropriate
conditions.
C. Kay Has Not Established That His Constitutional
Rights Have Been Violated.
1. Kay Has Not Proved a Violation of His Right
to Substantive Due Process
Assuming arguendo that Kay has a constitutional basis
for his claim,'> Kay is cofrect that substantive due process
may be violated where a municipal body acts arbitrarily or
irrationally in making its decisions. See Airtouch Cellular,
83 F. Supp. 2d at 1170 (the principle of substantive due
15. The City objects to Kay’s substantive due process claim on
the grounds that any argument that the City Council retaliated against
him for exercising his First Amendment rights preempts a substantive
due process claim. As the Court rejects Kay’s substantive due process
claim on other grounds, it need not reach the issue.
For the same reason, the Court need not determine whether Kay
seeks constitutional rec -ss for property infringement generally, for which
there is aconstitution !ly protected right, or only for his CUP permit for
commercial antennas, for which the City argues there is not.
25a
Appendix A
process assures property owners of the right to be free
from arbitrary or irrational zoning actions); Omnipoint
Communications, Inc. v. Penn Forest Tp., 42 F. Supp. 2d
493, 508 (M.D. Pa. 1999) (substantive due process violation
may occur if the zoning authorities are “motivated by ‘bias,
bad faith, improper motive, racial animus, or the existence
of artisan political or personal reasons””’).
Kay points to comments of City planning commissioners,
the City Attorney and City Council members that allegedly
demonstrate a lack of fairness.
Kay first points to Planning Commissioner Long’s
statements: “I mean my inclination is if we have to allow
commercial structures all over the roof, and face more people
who come in like this guy and Abrams who lie to us and tell
us that they are ham radio buffs and they are really
commercial operators, my inclination would be to just deny
all the applications and tell them all to go to hell and let
them sue us.” AR 2:42:358. City Attorney Lynch responded:
“Which undoubtedly will happen. OK. I will be quiet now.
I have said this every way I can think of.” /d.
Commissioner Long’s statement appears to be a reaction
to the Abrams decision, which was clearly unpopular with
the Commission and City Council. Commissioner Long’s
comment is not at all irrational in light of the potential impact
of Abrams. While Congress made clear in the TCA that it
wished to reserve to local agencies the right to make aesthetic
decisions when presented with applications for commercial
antenna use, 47 U.S.C. § 332(c)(7)(A), PRB-1 makes clear
that governments must consider the great benefits conferred
26a
Appendix A
on the public by amateur radio operators when considering their
applications. PRB-1 at 4 10. This provision may allow those in
the telecommunications business to avoid a certain degree of
regulation by purporting to erect amateur antennas while fully
intending immediately to convert them to commercial use.
The proliferation of unsightly antennas’® is limited to some
degree by their non-commercial use. There simply is a limit to
how many antennas (or how high an antenna) one residence
needs (or would want) for amateur use. If one is able to make
money from antennas, however -- SO much money that it makes
economic sense to buy a home in a well-to-do residential
neighborhood to be used simply as a structure on which to place
antennas -- “the sky is the limit,” so to speak. It was not irrational
for the commissioners to fear that Abrams, coupled with the
willingness of applicants to “misrepresent” their intentions
(or legitimately change their minds), would effectively sera
Congress’ recognized intention to preserve the ability of loca
governments to address the aesthetic concerns of the vast
majority of their citizens.
Elsewhere, Kay objects to Council ge 908 ee
ment in response to the arguments of one © ay’s
meemeaiuen: T've heard enough snake oil.” AR 4:69: 1003.
It’s not clear from the record to what this referred, but it may
have been the obviously troublesome position taken by Kay S
counsel that Kay could place “10, 20, 30” or a virtually unlimited
number of amateur use antennas on his roof so long as each
was under 12 feet tall. AR 4:69:1001.
16. The Court assumes there’s no real dispute that such antennas
are rarely considered a positive addition to a residential neighborhood.
27a
Appendix A
Later, Gardiner discusses the concept of “substantial
evidence” and that it is expected that legislators will consider
the views of their constituents, and states: “I think we have a
right under the Telecommunications Act to simply say take
the stuff off the exterior. Now if you want to put inside [sic],
that’s your choice. If you want to find greener pastures. That’s
your choice, but I believe we can say take the antennas off
the exterior of the house... . So | would say that we have a
basis, a reasonable basis, for saying take all the antennas off
the roof.” AR 4:75:1139. This was not a totally unreasonable
interpretation of the TCA in light of section 7(A) and the
substantial circuit authority upholding the ability of local
government to regulate aesthetics, and does not prove
irrationality, bias, or punitive intent.
Finally, Council Member Clark stated: “Well, I'll tell
you the difficulty I have with that is, this is a residential
community. It’s a residentially zoned community and quite
frankly, this ruse by Mr. Kay with the City doesn’t fly with
me one iota. And by the way, I’m not impressed with his
comments to the press, that he considers this cheap theater
.... If you think that impresses the Council, it doesn’t.”
AR 4:75:1126. Mayor Pro Tern Stern follows this remark
with: “We are. We are, Larry.” /d.
Council Member Clark frankly stated his appropriate
concerns for maintaining the residential nature of the
community. These are precisely the concerns relegated to
local governments under the TCA and the case law
interpreting it. Clearly, Council Member Clark did not believe
Kay had been honest with the City. The Council’s concerns
with Kay’s veracity in this regard have a substantial basis in
28a
Appendix A
fact.'’? The Court concludes, based on the record, that the
belief of the commissioners and council members that Kay
had intended to use his antennas for commercial purposes as
early as the date on which he applied for amateur use was
reasonable. Their concerns in that regard were not irrational,
nor did they arise from bias. The concerns arose from the
information before the Council members. While attempting
to rebut “unfounded attacks on [his] credibility, Kay made
clear his long existing interest in commercial use. He has
been active in the telecommunications industry since 1973.
AR 4:76:1160 (Applicant James A. Kay, Jr.’s Supplemental
Declaration and Exhibits in Support of Conditional Use
Permit). Kay has operated telecommunications businesses
since 1977. /d. These businesses specialize in, inter alia, sales
of air tame for two way radio systems. He has transmission
facilities throughout Southern California. /d. “Shortly” after
purchasing the Indian Peak residence, Kay placed three
additional antennas on his roof (for a total of five). Kay's
Opening Brief at 7. In December 1994 he signed a letter that
would have authorized the Getty Trust to broadcast from his
residence. AR 4:76:1182. Kay leased space on his indoor
antennas to at least two businesses. AR 4:76:1161. At the
time he was applying for CUP 230, Kay had “a large number
of pending commercial applications with the FCC.” Id. Most
of the applications sought permission to broadcast from the
—— =>
17. The Court distinguishes the question of whether Kay was
truthful concerning the date on which he began commercial
operations, and whether those operations were inside the house or
outside, from the question of whether Kay misrepresented his
intentions when he stated he intended to use the additional antennas
for amateur purposes. It is this latter subject that Long and Clark
appear to be addressing.
Pe ae
29a
Appendix A
Indian Peak property as well as other locations. /d.
He admitted he might want to use the Indian Peak property
for those licenses. /d. Kay contends he purchased the Indian
Peak property as a “second residence” and has been fixing it
up, but it is unquestioned that no one has lived at the residence
since its purchase by Kay. Kay’s representative admitted at
the November 13, 2001 public hearing that Kay wanted all
20 antennas to remain on the roof for commercial use.
AR 1:39:236-37.
With respect to the comments of City Council members,'*
Kay bases his due process claim on allegations unsupported
by the record. For example, Kay baldly alleges that City
officials “allowed Kay’s legal acts and statements to provoke
them into abusing their powers, to the point that they ignored
advice from experienced City planners and their own City
Attorney (and Judge Wilson’s ruling Abrams) in their drive
to retaliate against Kay.” Kay’s Opening Brief at 36-37.
However, the other statements by City Council members
suggest an ongoing debate over the merits of Kay’s
application rather than any arbitrary or irrational animus
toward Kay. City Council Member Gardiner attempted to
determine what the City Council’s obligations were under
18. Kay has cited only isolated statements of City officials to
substantiate his claim of due process violations. This Court agrees
that the City Council’s decision on Kay’s CUP application, not the
Planning Commission's decision, is under review. Regardless of
whether planning commissioners are agents of the City, the comments
of Commissioner Long, or any other commissioner, are irrelevant to
the question of whether the City Council’s decision-making process
violated Kay's right to substantive due process. Even if the Court
considered all the comments identified by Kay, the result would be
the same.
30a
Appendix A
the TCA, AR 4:75:1139, while Council Member Clark voiced
concerns about maintaining the residential character of the
neighborhood. AR 4:75:1126. Instead of arbitrary action, the
City Council membérs’ comments evidence serious
deliberation as they discuss reasons Kay’s permit application
should or should not be granted. Surely, the City Council
has a right to debate the merits of Kay’s permit application
without running afoul of substantive due process.
Elsewhere, Kay insists that the City commissioners and
Council members decided Kay was a liar, based on false
assumptions about alleged Getty Trust operations, and
thereafter treated him with contempt, precluding any chance
of a fair assessment of his antenna application. See AR
4:75:1129. The City Council did indeed debate whether Kay
had a contract with the Getty Trust. AR 4:75 1129. Nothing
in the record, however, rises to the level of treating him with
“contempt” or establishes that council members formed any
irrational hostility toward him based on these assertions. The
City continues to contend that, in November I 995, the FCC
issued the Getty Trust a license to use Kay's antennas for
business purposes. It further contends the Getty Trust was
licensed to use antennas on Kay’s property and began using
those antennas on November 27, 1995 to transmit on
frequencies licensed to use antennas for commercial mobile
radio services, including the 852.9625 MHz frequency which
Kay expressly authorized. Kay initially submitted a swom
declaration to the City saying that “The Getty Trust obtained
an FCC license to transmit on commercial frequencies
from my location without my knowledge or permission.
3ia
Appendix A
AR 2:56:434 [lines 6-7].'° Kay opined that “Getty must
simply have been told by a “radio industry professional .. .
of [his] home and radio transmitters located in Rancho Palos
Verdes.” /d. Later, Kay’s counsel admitted to the City Council
that Kay gave Getty permission to list Kay’s property as a
site on Getty’s application for a commercial license.
AR 5:83:1305. Indeed, the December 7, 1994 letter
establishes that Kay had business discussions with Getty that
could potentially have resulted in a lucrative business
arrangement. The Court is skeptical, to say the least, that
Kay, who clearly was interested in making money from the
use of his antennas, would have forgotten he had entered
into such an agreement with such a well-known entity as the
Getty Trust. Indeed, it is not clear to this Court even now,
after extensive briefing and discussion by both parties,
precisely what commercial arrangements Kay actually had
with Getty at any particular point in time. The City was
justifiably skeptical about Kay’s veracity concerning his
actual and intended use of the property. -
Moreover, as the City notes, other statements by these
same Council members demonstrate fairness and
professionalism toward Kay. On the last night of the public
hearing, for example, Council Member Gardiner stated the
matter should be continued until the City Council has had
“a fair chance” to look at Kay’s submissions in order for the
19. The City contends that Kay’s alleged lies about commercial
use of the antennas is dispositive. The Court disagrees. The Court
concludes there was “substantial evidence” in the record to suggest
that Kay had lied. Therefore, if the City’s position were legally
correct, the Court would uphold the CUP. (The Court is not making
a finding as to whether Kay actually did lie about this issue.)
32a
Appendix A
decision-making process “to be absolutely fair.” AR
5:83:1309. Elsewhere, Council Member Clark stated that his
goal was to permit Kay to use the two antennas on his roof
as he sought fit, while maintaining the residential character
of the neighborhood. AR §:83:1319. Mayor Pro Tem Stern
stated that while he was troubled by Kay’s candor, his
decision “turns on other factors” as well. AR 5:83:1316.
As further evidence of the extent to which City officials
respected Kay’s rights, Kay’s own representative thanked the
City’s planning staff and praised them as “consummate
professionals.” AR 4:69:1003. While Kay dismisses these
comments as “perfunctory professionalism” that does not
waive Kay’s right to object to the City’s “arbitrary and
irrational acts,” Reply at 15, the Court sees them as some
evidence that Kay’s substantive due process rights were not
violated. Kay simply has not proven to this Court that the
Council’s actions rose to the level of a substantive due process
violation.
2. The City Did Not Violate the Equal Protection
Clause.
The Equal Protection Clause mandates: “No State shall
_.. deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV, § 1.
Kay admits he is not a member of 4 suspect class.
Therefore, as long as the City has a “rational basis a
the equa
creating a classification, ... the law passes :
protection test.” Watson v. Proctor, 161 F.3d 593, 599 (9"
Cir. 1998).
33a
Appendix A
Kay’s first equal protection claim is that he was treated
differently from Abrams, who was allegedly similarly
situated. As the City notes, it was vehemently opposed to
granting Abrams commercial use of his antenna. The Court
doubts an equal protection claim can be based on an
involuntary, court ordered action. In any event, the Court
finds Kay and Abrams arc not sufficiently similarly situated
to compel a finding of an equal protection violation. Kay
himself argues that his situation.is different from Abrams’.
He, contends: “Kay’s [antenna] arguably had /ess of a visual
impact than Abrams’ ....” The Court agrees there is a
difference in visual impact - and therefore, a difference
between Abrams’ situation and Kay’s. Whether the impact is
greater or less is not for Kay -- or for this Court -- to decide.
As is by now obvious, Kay and Abrams think in terms of
antenna use, while the City properly considers aesthetics. A
five (or 20) mast structure is not aesthetically equivalent to
a 52.5 foot tower. More importantly, the City notes that -
Abrams apparently lives in his residence while Kay does not.
As discussed previously, there is substantial evidence
supporting the City’s conclusion that Kay purchased his
residence simply to use it as an unoccupied base for his
antenna business.
Kay has not proven that he is similarly situated to
Abrams.
34a
Appendix A
3. Ordinance 374U Does Not Constitute A Bill
Of Attainder Or Ex Post Facto Law; Its
Passage Does Not Violate Kay’s Equal
Protection Rights.
The parties agree 374U was a reaction to, and designed
to address, Judge Wilson’s ruling in Abrams.”° Specifically,
374U prohibits the installation of more than one vertical mast
per amateur rooftop antenna structure. AR 3:64:641. Kay
argues that the City adopted 374U as an “urgency” measure
to affect the appeal pending on Kay’s CUP application, which
was then scheduled to be heard in a few days. AR 3:66:737.
Had the City adopted the amendment in the ordinary course
of business, 374U would not have applied to Kay’s CUP
application. Kay contends at, assuming the ruling in Abrams
applied to Kay, the City “arguably would have been forced”
to grant Kay’s application as to his entire 20 mast antenna
structure (not just the five mast antenna structure), subject —
to reasonable conditions. Kay’s Opening Brief at 39.
Although the new “urgency ordinance” banned the
installation of all multiple antenna mast structures without
first obtaining a permit, it “grandfathered” in all existing
antenna structures — except those erected after June 1, 2001.
AR :64:0641 [Section 3]. Based on sworn testimony of both
Senior Planner Fox and Director of Planning Rojas, Kay is
the only Rancho Palos Verdes homeowner who erected or
modified his antenna structure after that date, i.e., both the
“urgency” nature of 374U and the retroactive provision were
20. Though Kay refers to the ordinance as “eviscerating” the
ruling, there is nothing inherently wrong in the City passing an
ordinance in an attempt to address the impact of a court’s ruling.
35a
Appendix A
pore} solely at Kay. (Fox Depo., Kay’s Opening Brief, Exh
, at 91:14 to 92:15; Rojas Depo., Kay’s Opening Bri , ,
E, at 119:7 to 120:7.) tet
a. Bill of Attainder
The Constitution provides that “[n]o Bill of Attainder
or ex post facto Law shall be passed.” U.S. CONST. ART. I
§ 9, cl. 3. A bill of attainder is “a law that legislatively
determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial
trial.” SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d
662, 668 (9" Cir. 2002), quoting Nixon v. Adm'r of Gen.
tg ee U.S. 425, a (1977). “A statute that singles out
iduals or groups by targeti
a bill of attainder.” Id. 2 a
“Three key features brand a statute a bill of attainder:
that the statute (1) specifies the affected persons, and
(2) inflicts punishment (3) without a judicial trial.” /d. at
668. “Only the clearest proof suffices to establish the
unconstitutionality of a statute as a bill of attainder.” /d. at
669. Only the first two factors need be discussed here.
The Ninth Circuit has established four non-exclusive
guideposts “to aid in determining whether legislation singles
out a person or class within the meaning of the Bill of
Attainder Clause.” /d. Courts must evaluate (1) whether the
statute or provision explicitly names the individual or class
or instead describes the affected population in terms of
general applicability; (2) whether the identity of the
individual or class was easily ascertainable when the
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legislation was passed; (3) whether the legislation defines
the individual or class by past conduct that operates only as
a designation of particular persons, and (4) whether the past
conduct defining the affected individual consists of
irrevocable acts committed by them. /d. No single factor is
dispositive. /d.
Cle rly 374U does not name Kay, but the class of persons
affected by it would be “easily ascertainable”: it is those City
residents who erected certain types of rooftop antennas after
June 1, 2001. It appears Kay was the only Rancho Palos
Verdes homeowner in this group (though there are others who
might have been affected if an earlier date had been chosen).
The ordinance was passed in response to the Abrams decision
and was deemed “urgent” specifically because of Kay’s
pending application. The City acknowledges that 374U was
intended to apply to Kay’s additional antennas. See AR
3:64:642; City’s Trial Brief at 11-12.
The “past conduct” factor supports a finding of
specificity when the date in the challenged statute targets an
individual on the basis of a past act that others had not
committed as of the date the statute was passed. /d. Courts
may also consider the future potential of the statute to
“encompass a larger class than the individual or group
allegedly targeted.” Jd. That 374U will apply to every future
homeowner wishing to erect amateur antennas detracts from
Kay’s specificity argument. SeaRiver, 309 F.3d at 671. Indeed,
although Kay apparently was the only person then affected
by 374U, its clear purpose was to address the very concerns
the city had raised before Judge Wilson, and that
Commissioner Long identified, AR 2:42:358, i.e., that
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individuals would falsely claim to want antennas for amateur
use as a means to avoid restrictions or denials of commercial
permit applications.
Finally, the Court must consider whether the challenged
statute “defines the specific class of persons affected by the
‘irreversible acts committed by them.’” SeaRiver, 309 F.3d
at 671 (internal citation and quotations omitted). Clearly no
irreversible acts are involved here. Though no single factor
is dispositive, the Court finds the “reversibility” of the
conduct at issue to be a compelling factor favoring a finding
of non-specificity. The Court need not decide the issue,
however, as it concludes 374U does not inflict punishment.
A statute must inflict punishment in order to constitute
a bill of attainder. SeaRiver, 309 F.3d at 673. In determining
whether a statute inflicts punishment, courts must evaluate:
(i) whether the challenged statute fails within the historical
meaning of legislative punishment; (2) whether the statute,
viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further non-punitive legislative
purposes; and (3) whether the legislative record evinces a
congressional intent to punish. /d. Courts may also consider
“whether less burdensome alternatives would have achieved
the same non-punitive purpose.” /d. statute need not satisfy
all of these factors to constitute a bi’ of attainder. Jd.
Traditionally, bills of attainder sentenced the targeted
individual to death, imprisonment, banishment, punitive
confiscation of property, or otherwise erected a bar against
employment or participation in specified vocations. /d.
Kay argues that 374U falls within the historical meaning of
NS
38a
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legislative punishment because it represents a punitive
confiscation of property. Reply at 17. ‘Th« City contends
(1) economic loss does not fall within the historical meaning
of legislative punishment and (2) 374U’s limit on the number
of amateur antennas cannot by definition amount to punitive
confiscation. City’s Trial Brief at 38-39. The Court agrees
with the City.
Because the Ordinance does not provide for actual
confiscation, Kay must necessarily rely on a theory that
equates confiscation with economic loss. But, economic loss
occurs only when Kay does exactly what the City accuses
him of doing: constructing antennas allegedly for amateur
use, while fully intending to use them for commercial
purposes. If the Court takes Kay at his word, there can be no
economic loss. In any event economic loss alone is not
coterminous with punitive confiscation of property. Fresno
Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723,
728 (9 Cir. 1992); see also Coalition of New Jersey
Sportsmen, Inc. v. Whitman, 44 F. Supp. 2d 666, 692 (D.
N.J.) (economic punishment does not fall within the historical
meaning of legislative punishment). ;
Next, the Court inquires whether the challenged statute,
“viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further non-punitive legislative
purposes.” SeaRiver, 309 F.3d at 674. Even if the statute
singles out an individual on the basis of irreversible past
conduct, it cannot be a bill of attainder if it furthers a
non-punitive legislative purpose. Id. Kay alleges that 374U
does not further a non-punitive legislative purpose because
it contains a retroactivity clause that applies only to one
39a
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individual. Reply at 18. The City claims that the non-punitive
purpose of 374U is (1) to reduce visual blight that could occur
if individuals erect an unlimited number of amateur antennas
and (2) to control the potential explosion of commercial
antennas in li = tate Tes
mee in light of the Abrams decision. City’s Trial Brief
Although 374U singles Kay out on the basis of past
conduct, a quick review of photographs of the Indian Peak
Residence, AR 1:36:212, establishes the non-punitive
legislative purpose of avoiding visual blight. Aesthetic
concerns lie at the root of zoning policy, see Nelson v City
of Selma, 881 F.2d 836, 839 (9" Cir. 1989) (“preservation of
the character and integrity of single-family neighborhoods”
is a legitimate purpose of planning and zoning”), and Ka
does not dispute that a number of his neighbors Psrcersri
that the Property was unsightly and did not conform with
the residential character of the neighborhood. (Kay does
contend, however, that he was in the process of fixing it up.)
Indeed, if Kay had not had the five mast structure on his a
for several years -- lawfully -- this Court would have found
that the City’s aesthetic concerns were justified even as to
those. Moreover, rather than targeting Kay’s property only.
374U addressed the prospective risk of additional
oe mye antennas. In short, this factor supports
indin at 374U f -puniti islati
es urthers a non-punitive legislative
One characteristic of a punitive statute is a legislative
record that evinces an intent to punish. SeaRiver, 309 F.3d at
676. Courts must determine whether the legislative record is
probative of non-punitive intentions or instead evidences an
|; 5) ae st Ania eee
40a -
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intention “to pander to an inflamed popular constituency”
and “assume the mantle of judge -- or worse still, lynch mob.”
Id. (citation omitted). Departure from established legislative
procedure may indicate an improper purpose. Id.
Kay claims that numerous hostile remarks directed
toward him and his counsel demonstrate a legislative intent
to punish. Kay’s Opening Brief at 41; Reply at 18. For the
reasons addressed in the discussion of Kay’s substantive due
process claim, the Court disagrees. While the administrative
record reflects a certain degree of hostility toward persons
who claim to be interested in amateur use in order to obtain
permission to erect antennas in residential neighborhoods,
on balance, the record indicates that 374U was enacted with
the non-punitive intention of furthering legitimate planning
goals, rather than the intention of punishing Kay. Similarly,
although Kay describes the conditions imposed as punitive,
the conditions arguably reflect a legitimate attempt to ensure
that Kay’s long vacant property will in future be maintained
in keeping with the residential character of the nei ghborhood.
Thus, the conditions cannot be fairly described as a mere
attempt to “pander to an inflamed popular constituency.”
SeaRiver, 309 F.3d at 676. In short, any hostility toward Kay
reflected in the legislative record is not conclusive evidence
of punitive intent.
In determining whether a legislature sought to inflict
punishment on an individual, courts also find it useful to
“inquire into the existence of less burdensome alternatives
by which [the agency] could have achieved its legitimate
nonpunitive objectives.” /d. at 677, quoting Nixon, 433 US.
at 482. Here the City Council certainly could have chosen a
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date other than June 1, 2001 for application of the
retroactivity provision, or otherwise increased the number
of permissible antennas. Nevertheless, the City Council’s
decision appears to be rational and commensurate with its
legitimate non-punitive goals. Therefore, the Court wil]
decline to assume the mantle of the legislature in
determining the date that a statute must take effect, or in
framing and quantifying the class that th islati
iSsi e legislat
permissibly affect.” /d. at 678. a ay
Because 374U does not inflict punishment, the Court
finds it is not a bill of attainder.
b. Ex Post Facto
To determine whether a statute is an ex post facto law
courts must first “ascertain whether the legislature meant the
statute to establish civil proceedings” Smith v. Doe, 538 U.S
84, 92 (2003) (citation and quotation marks omitted). If the
legislature intended to impose punishment, then the inquiry
is finished. /d. If, however, the legislature intended to “enact
a regulatory scheme that is civil and nonpunitive,” courts
must “further examine whether the statutory scheme is so
punitive either in purpose or effect as to negate [the
legislature’) intention to deem it civil.” /d. (citation and
quotation marks omitted). Because courts must ordinarily
defer to the legislature’s stated intent, “only the clearest proof
will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty.”
/d. (citation and quotation marks omitted). |
tS al, die a
>. *
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To determine whether a statutory scheme is civil or
criminal, courts “must first ask whether the legislature, in
establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the other.”
Id. at 93 (citation and quotation marks omitted). Courts
should begin by examining the statute’s text and structure,
but “[o]ther formal attributes of a legislative enactment, such
as the manner of its codification or the enforcement
procedures it establishes, are probative of the legislature’s
intent.” /d. at 94.
The City alleges that 374U is not an ex post facto law
because the City Council’s intention was to enact a civil
non-punitive statute. City’s Trial Brief at 43. Kay does not
specifically address this issue. See Kay’s Opening Brief at
42; Reply at 18-19.
The Rancho Palos Verdes City Council expressed its
legislative intent in the text of 374U itself. See AR 3:64:642.
The Council noted that the Abrams decision established
“judicial precedent that could be used to allow the current
exemption for certain amateur antennae to be used by
individuals seeking to make commercial use of those
antennae and profit thereby by adding more antennae and
support structures on residential structures to the detriment
of the surrounding residential neighborhoods and the public
health, safety and welfare.” /d. The ordinance explains that
“(t]o avoid the substantial delay ... and the corresponding
adverse impacts to the public health, safety and welfare of
the City’s residents and the general public, . . . it is necessary
for this ordinance to become effective immediately.” /d. The
text also suggests that retroactive application would ensure
ES ORE OI EI PA TN RE SN CTU OR Gt PA IEE Se ESET ERE AO TONITE ET OR RAEN TES ow
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“that the current exemption cannot be misused by individuals
seeking to make commercial use of amateur antennae
especially since one such application currently is pending
before the City... .” /d. Thus, the text of 374U reflects the
intent to deal rationally with a public policy concern, and
[nJothing on the face of the statute suggests that the
po my sought to create anything other than a civil
scheme designed to protect the publi ” Smith,
538 U.S. at 93 para aan a
Kay attempts to cast doubt on the non-punitive character
of 374U by pointing out that any violation of the municipal
code may be punished by criminal prosecution. Kay’s
Opening Brief at 42. Specifically, Section 1.08.010 of the
RPVMC provides: “[a]ny person violating the Code is guilty
ofa misdemeanor, unless the violation or failure to comply
is expressly stated by [the] Code to be an infraciion or is
subsequently prosecuted as an infraction in the discretion of
the city attorney. . . .” 374U itself, however, does not provide
for any procedures associated with the criminal process, nor
does it establish penalties for noncompliance. See AR
3:64:641. The (remote) possibility that Kay could be
criminally prosecuted for failure .o comply does not render
374U 4 criminal law. See Smith, 538 U.S. at 96 (“Invoking
the criminal process in aid of a statutory regime does not
render the statutory scheme itself punitive.”).
In analyzing the effect of a challenged statute, courts
examine whether the sanction: (i) involves an affirmative
disability or restraint; (2) has historically been regarded as a
punishment; (3) comes into play only on a finding of scienter:
(4) promotes the traditional aims of punishment (retribution
it
44a
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and deterrence); (5) applies to behavior which is already a
crime; (6) has a rational connection to a non-punitive
purpose; or (7) is excessive with respect to this purpose. Id.
at 97; citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69 (1963). These factors are “neither exhaustive nor
dispositive.” /d. (citation omitted).
Misdemeanor charges for violation of local zoning
ordinances have not historically been regarded as punishment.
See SeaRiver, 309 F.3d at 673 (historical punishments include
death, imprisonment, banishment, punitive confiscation of
property, and bars to employment). In any event, it is clear
from the record that Kay has regularly been in violation of
various ordinances of the Rancho Palos Verdes Municipal
Code. There is no suggestion that Kay or anyone else has
ever had such a violation treated as a misdemeanor.
The statutory scheme does not impose any affirmative
disability or restraint. See Smith, 538 U.S. at 99-100 (“If the
disability or restraint is minor and indirect, its effects are
unlikely to be punitive.”). Although the possibility of criminal
prosecution may prevent City residents from violating 374U,
374U does not reasonably have the effect of promoting the
traditional aims of punishment. See Smith, 538 U.S. at 102.
The ordinance does not prohibit behavior that is already a
crime or otherwise require a finding of scienter. See AR
3:64:641. Most significantly, however, 374U has a rational
connection to a non-punitive purpose, namely the prevention
of the proliferation of antennas in the City of Rancho Palos
Verdes. See AR 3:64:642; see also Smith, 538 U.S. at 102-03
(a rational connection to a nonpunitive purpose is the most
significant factor for determination that a statute’s effects
10 ep ee he
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45a
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are non-punitive). Finally, possible misdemeanor charges for
violation do not constitute an excessive punishment in light
of 374U’s nonpunitive goals. See AR 3:64:642.
In passing 374U, the intent of the Rancho Palos Verdes
Council appears to have been to create a civil, non-punitive
regime. Kay has failed to show by the “clearest proof” that
the statute’s effect is so punitive as to negate the City
Council’s intent to establish a civil regulatory scheme. 374U
therefore, does not violate the Ex Post Facto Clause of the
United States Constitution.
c. Equal Rights
In this permutation of his equal protection argument
Kay contends that he is not the only homeowner whose
rooftop antenna structure fails to meet the requirements of
374U. As the retroactive aspect of 374U applies to his
structure (because of its effective date), he claims he is treated
differently from similarly situated homeowners. To establish
his claim he refers only to photographs attached to the report
of his expert, H. Clark Bell. This photos are inadmissible,
and in any event would not prove his claim. Bell does not
authenticate the photos other than to say that they were
provided during discovery. Although his report mentions
them, it is for another point -- not to establish that the
homeowners are similarly situated to Kay or that their
antennas do not conform to 374u or were in place before
June 2001. Indeed there is nothing in the record from which
the Court could conclude these homeowners were similarly
situated. The pnotos are so poor the Court cannot even be
sure that some of the homes depicted even have radio
antennas, much less similar, non-conforming ones.
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— ww] eS ee eee ™™
46a
Appendix A
Where the plaintiff is not a member of a suspect class, a
statute will not violate equal protection if there is “any
reasonably conceivable state of facts that could provide a
rational basis for the classification.” SeaRiver, 390 F.3d at
679, quoting FCC v. Beach Communications, Inc., 508 U.S.
307 (1993). After viewing Kay’s evidence (the photos
provided by the City), the Court perceived an aesthetic
difference among antenna structures. Even if Kay had
established that 374U did not include others similarly
situated, “‘mere underinclusiveness is not fatal to the validity
of a law’ under the Fifth Amendment’s guarantee of equal
protection.” 390 F.3d at 679 (citations omitted). In any event,
that the Council “could have chosen an earlier or later
effective date does not establish an equal protection
violation.” Jd. at 680, quoting United States R.R. Ret. Bd. v.
Fritz, 449 U.S. 166, 179 (1980) (“the fact the line might
have been drawn differently at some points is a matter for
legislative rather than judicial discretion”).
The City has not violated the Equal Protection Clause.
d. Kay’s “Taking” Claim Is Not Ripe.
The “taking” clause of the Fifth Amendment provides:
“(njor shall private property be taken for public use, without
just compensation.” U.S. CONST. amend. V. The purpose of
the clause is “to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” Armstrong v.
United States, 364 U.S. 40, 49 (1960).
-
2
3
:
;
3
47a
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| Before a challenge to an alleged taking may be brought
in federal court, the claims must satisfy the ripeness
requirement of Williamson County Regional Planning
Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). A challenge
to an alleged regulatory taking is not ripe unless (1) the
government entity charged with implementing the regulations
has reached a final decision regarding the application of the
regulations to the property at issue, and (2) the claimant has
sought “compensation through the procedures the State has
provided for doing so.” /d. at 186, 194. Thus, pursuant to
the second prong of the Williamson test, “if a State provides
an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure and been
denied just compensation.” /d. at 195. If the state does not
have a “reasonable, certain, and adequate provision for
obtaining compensation” at the time of taking, however, the
claim is instantly ripe. /d. at 194; see also San Remo Hotel v.
City and County of San Francisco, 145 F.3d 1095, 1101-02
(9" Cir. 1998). “A landowner who seeks to sue in federal
court before seeking compensation from the state bears the
burden of establishing that state remedies are inadequate.”
Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824,
827 (9" Cir. 2004) (internal quotation marks and citation
omitted).
Kay appears to allege that ripeness is irrelevant because
“ordinary takings cases” are not applicable to the present
situation. Reply at 21. The City alleges that Kay’s taking
claim fails because Kay has not exhausted his state remedy
for seeking just compensation. City’s Trial Brief at 45.
—
48a
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Kay has failed to show that he pursued state
administrative or judicial remedies to seek just compensation.
See Reply at 21-22. Although Kay engaged in an extended
series of dealings with the City regarding his CUP
application, see Kay’s Opening Brief at 9-22, Kay has not
alleged that he ever sought compensation or losses resulting
from conditions imposed on the CUP. See Reply at 21-22.
Moreover, Kay has failed to prove, or even allege, that
California lacks an adequate procedure for seeking just
compensation. Id. For that reason, Kay’s taking claim is not
ripe.
5. Kay’s Claim Under PRB-1 Is Premature.
PRB-1 is a Federal Communications Commission
declaratory ruling, providing that “local regulations which
involve placement, screening or height of antennas based on
health, safety or aesthetic considerations must be crafted to
accommodate reasonably amateur communications, and to
represent the minimum practicable regulation to accomplish
the local authority’s legitimate purpose.” /d. at { 25
(emphasis added). PRB-1 preempts only those “local
regulations that operate to preclude amateur communications
_...” PRB-1 4 24 (emphasis added). PRB-1 “promotes the
federal interest in amateur radio operations rather than any
individual operator’s right to erect the antenna of his or her
choice. Howard v. City of Burlingame, 937 F.2d 1376, 1380
(9" Cir. 1991). PRB-1’s reasonable accommodation standard
requires that a municipality (i) consider a resident’s antenna
application, (2) make factual findings, and (3) attempt to
negotiate a satisfactory compromise with the applicant. /d.
Kay admits that the City considered his application and made
49a
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factual findings; he objects only to the City’s alleged failure
to negotiate a Satisfactory compromise with him; Kay’s
Opening Brief at 45:16-19. Kay likens his situation to that
of plaintiff in Palmer v. City of Saratoga Springs, 180 F
Supp. 2d 379, 385 (N.D.N.Y. 2001). According to Kay. the
City has disregarded this third prong of the reasonable
accommodation test and instead “engaged ... in a strictly
one-sided negotiation consisting of inflexible demands and
the construction of hoop after hoop .. . to jump through.”
id. In support of his contention, Kay cites the City’s alleged
historical, demonstrable animosity” toward antennas in
general and Kay’s antennas in particular as proof that the
City “would never allow a property owner to have more
rooftop antennae than are exempt under section 17.76.20.”2'
Kay’s Opening Brief at 46:21-27.” ~~
Kay’s objection to the City’s attitude toward antennas is
premature, however, as the City has not ruled on how many
21. Kay’s argument that PRB l ion i
| | -1 preempts this section is
immaterial, as Kay has not yet applied for an amateur antenna permit.
22. Kay cites to a statement in Abrams and “hostili
by the City towards antennae in the Abrams — ace —
for his contention. But Abrams is a different case with different hon
most of which have not been provided to this Court. Even if the
Court considers the few facts provided in the Abrams decision. it
would establish that the City was hostile to a 52.5 foot tower in a
different location. The Court declines to find the City would not act
in good faith in an entirely different situation without giving the City
an Opportunity to act properly. The Court also notes that the testimon
= noe City’s min provided in support of his argument was ao
er this action was filed. Thus the Ci j
to consider that opinion. iaieaaia aiid
50a
Appendix A
amateur antennas Kay may have. The City never prohibited
Kay’s amateur-use antennas because Kay never applied for
an amateur permit for the additional fifteen antennas he seeks
to erect. In fact, the City specifically states in its trial brief
that it would allow Kay at least five amateur antennas should
Kay “avail himself of the procedures set forth. . . for seeking
approval from the Planning Director or the Planning
Commission depending on the height of the proposed
antenna.” Opposition Brief at 47. The City’s Planning
Director has the ability to approve amateur antennas “beyond
the two exempt assemblies,” so long as the proposed antenna
meets specified height requirements. City’s Trial Brief at 48.
Kay’s failure to apply for an amateur antenna permit is
apparently based on his fear that the City’s hostility to him
and his antennas precludes fair adjudication of any
application he might make.
Black letter law typically demands that an individual
seeking judicial review of agency action exhaust all
administrative remedies before seeking relief in a federal
court. See, e.g., Hoeft v. Tucson Unified School District, 967
F.2d 1298, 1302-30 (9th Cir. 1992). In the present case, the
City has explicitly prohibited Kay from erecting more than
two antennas for commercial use. AR 5:84:1340-41
[condition 2]. It has not yet ruled on his amateur antennas.
Kay has not exhausted his administrative remedies.
Kay’s remaining arguments are thus inapposite. Kay
asserts that, although the CUP demands only that Kay remove
“roof-mounted antenna” but permits him to locate as many
antennas inside of his house as he wishes, AR 5:84:1342
[condition 11], interior antennas are far less effective than
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Appendix A
exterior antenna. AR 4:76:1166-67. Kay further notes that
the only possible interior location is the home’s master
bedroom but that Kay was only permitted to broadcast
commercially on the condition that the house be occupied.
If, after applying for an amateur antenna permit, the five
permissible roof-top amateur antenna” (in addition to interior
antenna Kay may choose to have) do not provide Kay with
reasonable accommodation for amateur purposes, he may
then, and only then, appropriately pursue his case in federal
court.
As the City notes, moreover, expert Richter’s testimony
rests on the mistaken premise that the City has already stated
that Kay may have only two amateur antennas. Because this
is not the case, Richter’s testimony that two antennas are
insufficient has no bearing on the present case. In addition,
the aesthetic similarity of amateur and commercial antennas
is not dispositive, as other considerations, such as the health
or safety issues suggested by PRB-1, may direct the City’s
decision. The Court will not attempt to predict on what basis
the City may make its ultimate ruling.
Of course, if the City fails reasonably to accommodate
Kay’s amateur antenna use, once he files an application, the
City may be in violation of PRB-1. The Court will address
that issue, if necessary, when properly presented, rather than
usurp the City’s permit-granting role. Indeed, PRB-1 “does
not contemplate the outright invalidation of city zoning
authority ....” Howard, 937 F.2d at 1380. Barring Kay’s
exhaustion of the remedies, his PRB-1 claim is not ripe for
23. These will now be allowed to remain in accordance with
the instant order.
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review. See, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449,
1456 (9" Cir. 1987) (plaintiffs’ taking, equal protection and
due process claims were not ripe for review where “the City
has not yet made a final decision regarding the property”);
Shelter Creek Development Corp. v. City of Oxnard, 838 F.2d
375, 379-80 (9" Cir. 1988) (property owners’ takings, equal
protection and due process claims not ripe because the “City
reached no final and authoritative determination as to how
the [zoning] ordinance applied”). The Court simply cannot
determine that the City has violated PRB-1 based on what it
might do according to some unsubstantiated alleged grudge.
In any event, Kay’s requested relief is inappropriate. He
apparently attempts to bootstrap his PRB-1 argument into
an order that the City approve all of his amateur antennas
for commercial use. While that might be the legal effect, if
this Court’s present ruling and the Abrams decision are
correct, thatis an argument for another day with further
briefing. PRB-1, by, its express terms, refers only to amateur
antenna use and does not address commercial use at all.
Insofar as Kay attempts to apply PRB-1 to commercial
antenna, he misapplies the agency ruling. Insofar as Kay
attempts to apply PRB-1 to amateur antenna, he has failed
to exhaust his administrative remedies as required in order
to seek relief in this Court.
D. Remedies Pursuant to 42 U.S.C. §§ 1983 and 1988
Kay asks that the Court award him damages pursuant to
42 U.S.C. § 1983 and attorney’s fees pursuant to 42 U.S.C.
§ 1988.
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The Ninth Circuit recently held that section 1983 damages
are available for violations of the TCA, Abrams v. City of Rancho
Palos Verdes, 354 F.3d 1094 (9" Cir. 2004), finding that although
“the TCA contains no remedies at all,” awarding section 1983
damages is more consistent with “the presumption in favor of
§ 1983 remedies.” /d. at 1098. Kay may submit his request under
these sections by regularly noticed motion.
V. CONCLUSION
For the reasons stated, the Court finds there was not
“substantial evidence contained in a written record” to support
the Council Resolution. A writ of mandate will issue compelling
the City Council of the City of Rancho Palos Verdes to issue a
new resolution allowing James A Kay, Jr. to use his five mast
antenna structure for commercial purposes, subject to reasonable
conditions. Kay may seek fees and Costs in a separately noticed
motion.
On all other issues the Court finds in favor of Respondents.
Kay is ordered to submit a proposed Judgment within ten
days of the date of this Opinion and Order. Respondents shall
have ten days to submit any objections to the proposed
Judgment.
IT IS SO ORDERED.
Dated: July 12, 2004
s/ Dale S. Fischer
Dale S. Fischer
UNITED STATES DISTRICT JUDGE
54a
APPENDIX B — EXCERPTS FROM
CITY OF RANCHO PALOS VERDES
PLANNING COMMISSION MEETINGS
CITY OF RANCHO PALOS VERDES
PLANNING COMMISSION
REGULAR MEETING
NOVEMBER 13, 2001
ITEM NO. 3
CHAIRMAN LYON: Okay, next item is Item Number 3.
COMMISSIONER LONG: When do we get comments from
the public on non-agenda items.
CHAIRMAN LYON: Pardon?
COMMISSIONER PAULSON: Comments from the. ...
COMMISSIONER LONG: Public on non-agenda items.
CHAIRMAN LYON: Oh we covered that already.
COMMISSIONER LONG: Oh we did already?
CHAIRMAN LYON: Yeah, yeah. There were none.
COMMISSIONER LONG: Oh okay, that was it.
COMMISSIONER PAULSON: We were moving fast in the
beginning.
[Laughter]
55a
Appendix B
COMMISSIONER PAULSON: You stepped out of the
room .... ;
[Laughter]
COMMISSIONER LONG: I stepped out the room briefly
so that’s fine. Good.
CHAIRMAN LYON: Okay.
COMMISSIONER LONG: That we’re done startles me.
COMMISSIONER VANNORSDALL: Never leave the
room.
* * *
COMMISSIONER CARTWRIGHT: So it would seem to me
that if we were to narrow our discussion to the five antennas
that were up there when the application was filed, there were
antennas on the second level that, we can certainly discuss
what should happen to those, and then it seems to me that
we need to make certain that the structure looks like and
feels like a single family residence and fits in with the
character of the neighborhood. These other 16 antennas that
are up on the roof, as far as I’m concerned, unless there are
some compelling arguments on the part of the other
Commissioners, I don’t see where they fit into this
application. It seemed to me that that’s a violation of our
Development Code and they should be taken down.
COMMISSIONER LONG: I think we should probably
include a fact-finding in a amended resolution saying what
56a
Appendix B
John just said. I guess to start off, I mean, to maybe go
through, my thought was to go through and maybe we could
take it paragraph by paragraph, starting on page 3 of 9,
Section 1, subparagraphs. It seems to me perhaps we should
have a section A, which would be just what John just said,
that we find that this application applies only to the four
antennas that actually existed and were depicted in
photographs in the application. Am I getting the number
wrong?
CITY ATTORNEY LYNCH: There’s five.
COMMISSIONER LONG: Five.
SENIOR PLANNER FOX: There were five existing.
COMMISSIONER LONG: Okay, five. The five antennas
that were in the pictures depicted with the application, and
that the other antennas to the extent they were existent on
the property, do not fall within any exemption and are not
the subject of this application. It seems to me we’re going to
want to modify proposed finding A, where it says there is
existing foliage which screens the roof-mounted antennae
from many surrounding residences. I would say, the existing
foliage does not adequately screen the roof-mounted antennae
from many surrounding residences in the neighborhood, and
then, I would say, however, conditioning approval upon
relocation of all antenna facilities, and I would add a sentence
at the end of A, however, conditioning approval upon removal
of all antenna facilities to the interior of the house eliminates
any adverse visual impacts. Let me see.
57a
Appendix B
CITY ATTORNEY LYNCH: I might Suggest that you go
ahead and allow the two, in that there’s one that looks like a
television antenna remain. Leave those two up there, because
there is an exemption for two of that type of antenna.
COMMISSIONER LONG: Okay, and then maybe we should
also, in the proposed amendment. . .
CITY ATTORNEY LYNCH: Put everything else inside.
COMMISSIONER LONG: ... that John was talking about
say that, other than those two, the others are not exempt, and
that we’re removing those.
CITY ATTORNEY LYNCH: And putting them inside, right?
COMMISSIONER LONG: Right. Okay. I would go next to
well, okay, actually C, in approving the subject use at the
subject location, there will be no significant adverse effect
on adjacent property or the permitted use thereof because
the conditions of approval of the project will require
reductions of the existing exterior antenna support structure
and array. It’s a part of the basis of our factual finding. And
C Is going to be the conditions that we’re going to be
imposing. It would seem appropriate to leave all of the other
conditions and findings in place in C.
COMMISSIONER PAULSON: Tom, a question. I have a
question first. City Attorney and staff, if we do what is being
proposed on this specific one, where we’re saying put
everything inside other than two, under the City’s current
Development Code, if they want to put up antennas exterior-
58a
Appendix B
wise, after we were to take such an action, strictly on the
outside, based on an amateur antenna situation, do they have
to come back to the City?
COMMISSIONER LONG: No they’II already have their two,
that’s why Carol made the modification.
* * *
CITY ATTORNEY LYNCH: I’m sure the three of us will
work together.
CHAIRMAN LYON: And are we going to have it available
to us before our meeting Thursday night.
CITY ATTORNEY LYNCH: Yes.
COMMISSIONER LONG: I am going to be looking to have
as many conditions as we had for Longpoint. |
CITY ATTORNEY LYNCH: I’m sorry.
COMMISSIONER LONG: Just kidding. As many conditions
of approval as we had for Longpoint. You know, how many
were there, sixty-three.
CHAIRMAN LYON: More than that.
CITY ATTORNEY LYNCH: Keep going.
COMMISSIONER LONG: One hundred.
COMMISSIONER PAULSON: It was a hundred.
59a
Appendix B
COMMISSIONER LONG: When the conditions are done
you can deliver both volumes of them to my Office.
CITY ATTORNEY LYNCH: We can email them.
COMMISSIONER MUELLER: I think as part of those
conditions took, I would like to see that thing on the roof.
that pipe, disappear. I don’t think that’
’ J that’s necessary to
basically two antennas. ——
SENIOR PLANNER FOX: You mean the thi
. . t
like a big dryer vent? e thing that looks
COMMISSIONER MUELLER: Yes. That’
entire array. - #hat's to support the
60a
Appendix B
CITY OF RANCHO PALOS VERDES
PLANNING COMMISSION
ADJOURNED MEETING
NOVEMBER 15, 2001
Adoption of Resolution for Conditional Use
Permit No. 230 and Environmental Assessment No. 744;
26708 Indian Peak Road
CHAIRMAN LYON: I guess there aren’t any comments on
the agenda. This evening there is one item on the agenda.
Unless there is an objection, we'll approve the agenda. Are
there any communications?
DIRECTOR ROJOS: Yes, I'll let Carol handle that.
CITY ATTORNEY LYNCH: We did pass out this evening a
revised resolution and we provided a redline copy to the
Commission where we made some additional changes today
to the resolution. I have also provided a copy to the
applicant’s representative who is here, and if the other
member of the public would like one, we also have an
additional copy. So, and we passed this out before the
meeting, so we would be asking the Commission to take
action on the revised resolution that was passed out tonight.
CHAIRMAN LYON: Are there any questions from the
Commission? OK, motion to proceed with the consent
calendar items, and do we need a staff report? As far as I’m
concerned, we can waive it.
6la
Appendix B
CITY ATTORNEY LYNCH: Basically, we attempted to
incorporate the directions that were given by the Commission
at the meeting two nights ago.
CHAIRMAN LYON: And it’s clearly st
ated that that’
we ve got. So, let’s... ' ications
CITY ATTORNEY LYNCH: We have two speakers.
CHAIRMAN LYON: We have two speakers. I guess the first
item of business, unless there are questions . . .
CITY ATTORNEY LYNCH: You closed the public hearing
At this point, the public hearing is closed and the speakers
can certainly comment on the text of the resolution, but this
is not reopening consideration of the item. It’s just adoption
of the resolution memorializing the Commission’s actions.
* /~ x
DIRECTOR ROJAS: Two.
CITY ATTORNEY LYNCH: Two. Which is the garage.
SENIOR PLANNER FOX: The garage would be the required
parking.
CHAIRMAN LYON: I made a comment at some point that
I'd like to use the word “dedicated.”
COMMISSIONER LONG: No I said, yeah, I said
exclusively.
62a
Appendix B
CHAIRMAN LYON: Well exclusively would preclude
anyone else from ever parking in the driveway.
COMMISSIONER LONG: That’s right. That’s. . . .
CHAIRMAN LYON: I have a problem with that.
COMMISSIONER LONG: That’s what it means.
COMMISSIONER PAULSON: I don’t know if you mean
that, Tom.
COMMISSIONER LONG: No, actually, that is exactly what
I mean. Because then they’re being required to maintain two
spaces for the residence, and two spaces for the service
vehicles, so that at no time when the service vehicles are
visiting will they ever have to park on the street.
COMMISSIONER PAULSON: You just qualified your
statement. You said at no time when they are visiting. I m
concerned that when they’re not visiting, you're saying
somebody can’t park their car there.
COMMISSIONER LONG: Well yeah, the concern I have is
that someone will park their car there and... .
COMMISSIONER PAULSON: Then they’re in violation if
they park on the street.
COMMISSIONER LONG: Oh yeah, because it says, all
service vehicles related to maintenance of the commercial
antenna shall be parked off-street. Okay, so then no more
63a
Appendix B
than two service vehicles are allowed in the same time. Two
off-street parkitig spaces. . . .
* * &
COMMISSIONER LONG: Right.
CHAIRMAN LYON: This...
COMMISSIONER LONG: This approval of commercial
antennas in the interior allows two exterior masts because it
has restrictive conditions. In other words, it’s still O.K.
CITY ATTORNEY LYNCH: I have to say, the more we talk
about this, the more uncomfortable I am with it because it
seems to me that in addition to the. enforcement issue, we
are walking into a potential argument that we are going too
far under the Telecommunications Act and PRB 1 and the
balance that has to go under PRB 1. I hadn’t even thought
about this until now. Under PRB 1, we have to use the least
restrictive means possible to regulate amateur antennas. By
getting into this issue, we are walking into a problem.
COMMISSIONER LONG: Well, but if he is going to sue us
on the grounds that he wants to really use the property for
more amateur antennas. Fine, so be it. Then we will find if
this use maybe really is amateur. I mean my inclination is if
we have to allow commercial structures all over the roof,
and face more people who come in like this guy and Abrams
who lie to us and tell us that they are ham radio buffs and
they are really commercial operators, my inclination would
be to just deny all the applications and tell them all to go to
64a
Appendix B
hell and let them sue us.
[LAUGHTER]
CITY ATTORNEY LYNCH: Which undoubtedly will
happen. O.K. I will be quiet now. L have said this every way
I can think of, so....
CHAIRMAN LYON: Well, Carol, . ..
COMMISSIONER MUELLER: I’m glad you here to hear
that statement, myself.
CHAIRMAN LYON: Carol, you raised a good point, and
are we doing anything in this paragraph that affects your
position in that regard?
COMMISSIONER PAULSON: She was not addressing this
paragraph. She was addressing the decision, the basic
decision.
ae He tt
CHAIRMAN LYON: O.K. Then why are we not telling Mr.
Kay to locate his antennas up on Abrams’ property?
CITY ATTORNEY LYNCH: Because, right now, Mr.
Abrams doesn’t have a CUP to operate commercially.
COMMISSIONER LONG: Right. That’s not an available
site. And it won’t be when we get a favorable termination of
his lawsuit. Hopefully.
65a
Appendix B
CITY ATTORNEY LYNCH: Hopefully.
COMMISSION LONG: But my comment on 9 was almost
going to be, I think B is too vague, “negotiate in good faith.”
I would say, “agree to co-location as reasonably requested
by the City,” if we could do that.
CITY ATTORNEY LYNCH: Well, the trouble with that is
that there is always an issue about separation and distances
in order to avoid interference and if they show that they can’t
reasonably accommodate the other user, we can’t then require
them to do something that interferes with their own
transmissions.
COMMISSIONER LONG: Well, but that’s why I say, “as
reasonable requested by the City.” In other words, the thought
is “good faith” is kind of a different standard. “Good faith,”
they could say, well, yeah, maybe they could have located an
antenna here, but, you know, we want a lot of money and
they weren’t willing to pay it.
COMMISSIONER PAULSON: Which is part of the
argument for [unintelligible].
COMMISSIONER LONG: Yes. Exactly. And I would kind
of like to modify 9B to say that they will, instead of saying
“negotiate in good faith for shared use by third parties,”
“agree to whatever shared used by third parties is requested
by the City.”
CITY ATTORNEY LYNCH: I don’t like that.
66a
Appendix B
COMMISSIONER LONG: “Is reasonably requested by the
City.”
CHAIRMAN LYON: Well, we are quoting directly from our
Code using these words, and I think that we shouldn’t deviate
from that.
COMMISSIONER LONG: Then, I will defer.
* * *
PAULSON: See, that’s my concern, I don’t know whether
we have the right to dictate, even in this situation, much of
the appearance of the roof.
CHAIRMAN LYON: I don’t think we need to...
COMMISSIONER PAULSON: We don’t necessarily tell
people to put drapes, curtains, blinds ....
COMMISSIONER LONG: Well, you say we don’t require
it in vacant houses. Do we require, is there anything in the
Building Code. This is not going to be a vacant house.
CITY ATTORNEY LYNCH: No. There’s no requirement
about...
COMMISSIONER LONG: .. . even when they reside. O.K.
Then fine. We are requiring whatever we are requiring for a
residential house.
67a
Appendix B
CITY ATTORNEY LYNCH: O.K. So-we take out C. All
right.
C HAIRMAN LYON: I guess I understand the reason why B
is in there, really for the same reason A is in there, but we
don’t really require landscaping in anybody’s front yard.
COMMISSIONER PAULSON: Well, that’s true, but there
is ;
CHAIRMAN LYON: We do, oh, good. I didn’t know.
COMMISSIONER LONG: We are going to go look at your
front yard. Don’t look at mine. I’m having it relandscaped
right now.
CHAIRMAN LYON: Number 19, I suggest, do we say 90
days? I think that’s too stringent. I would suggest 6 months.
Even that is difficult, because we are requiring him to have
either himself or some other person occupying that property
within 6 months.
a
COMMISSIONER PAULSON: Well the planner, Frank, for
the applicant says they will have somebody in the house.
COMMISSIONER LONG: They didn’t ask for six months
to do. I think three months is ample.
CHAIRMAN LYON: What if he wanted to rent?
COMMISSIONER LONG: Well, then he can rent. I mean, I
can’t imagine some...
68a
Appendix B
CHAIRMAN LYON: You can put an add in the paper and ~
put itin...
COMMISSIONER LONG: Given the current rental market,
I don’t think he’ll have any trouble.
COMMISSIONER PAULSON: Well, why does he have to
it in 90 days if he [unintelligible].
COMMISSIONER LONG: And show that he’s...
CHAIRMAN LYON: My question is, is it unreasonable?
That’s my only concern. If it is not unreasonable, then | am
O.K. with it.
SENIOR PLANNER FOX: Their attorney did state last night
on the record that the addition will be done in six weeks.
COMMISSIONER LONG: When did he say that?
SENIOR PLANNER FOX: Tuesday night, on the recerd,
whatever night it was.
CHAIRMAN LYON: And, the second and third line “shall
be occupied by the applicant.” I don’t think so. I think we
want to say “owner.”
SENIOR PLANNER FOX: Well, the owner is the applicant.
CITY ATTORNEY LYNCH: The owner is the applicant.
69a
Appendix B
CHAIRMAN LYON: Yes. But sometimes, the applicant is
let’s see, an architect, or property manager and, you know,
CITY ATTORNEY LYNCH: We can say owner.
SENIOR PLANNER FOX: We can say owner.
CHAIRMAN LYON: Just so it is clear.
SENIOR PLANNER FOX: Yes.
CITY ATTORNEY LYNCH: Or someone chosen by the
owner. Let’s change it then to owner.
* * * *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.