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City Cannot Base Antenna Permits Denial Solely on Antenna's Use

The City of Rancho Palos Verdes does have the authority to regulate placement of radio antennas, but the city cannot deny a use permit for an antenna solely because the antenna would be used for commercial purposes, the Second District Court of Appeal has ruled. Under the Telecommunications Act of 1996 the city "may deny a permit for a legitimate reason," the court held. "But the city may not, as it did here, deny a permit based solely on the type of transmissions: commercial as opposed to amateur." In 1990, Mark Abrams erected a 52-foot radio antenna at his home near the peak of the Palos Verdes Peninsula. The city had approved a site plan review application for the structure. Seven year later, Abrams attached a 40-foot antenna to a fence around the tennis court on his property. He received approval for a site plan review application after the fact for the second antenna. Abrams is both an amateur radio operator (a "ham") and owns for-profit businesses that sell two-way radio equipment and provide commercial transmission services. Under the Rancho Palos Verdes antenna ordinance, Abrams had to get a conditional use permit to operate the antennas commercially. Abrams said the two permanent antennas only handled amateur radio traffic, but two portable antennas in his yard carried commercial relays. In April 1999, the city and the state sued Abrams, seeking an injunction that barred Adams from operating antennas for commercial purposes. Abrams argued that federal law preempted the city's permit requirement because it prohibited the use of radio frequencies allocated to him and his customers by the Federal Communications Commission. The trial court urged Abrams to go through the city's planning process, which he did. However, the Rancho Palos Verdes Planning Commission and, on appeal, the City Council, rejected Abrams's application to operate commercially. The case proceeded and Los Angeles County Superior Court Judge Cesar Sarmiento ruled for the city. Meanwhile, Abrams sued the city in federal court, where a district court vacated the city's use permit decision because there was no substantial evidence that commercial use would cause harm. Abrams appealed the decision rendered in state court, saying he had the right to use existing, city-approved antennas for commercial purposes. A unanimous three-judge panel of the Second District, Division One, sided with Abrams and overturned the trial court judge. The city argued that Abrams should not be allowed to "convert" his permitted antennas to commercial use because a change in use triggered the city requirement. A permit to construct a house in a residential zone, the city argued, would not authorize the owner to use the house for commercial purposes even though the external appearance remained the same. But the court rejected this argument, finding that federal law pre-empted the city's regulation in this case. There are three types of pre-emption of state law by federal law, the court explained: "Express pre-emption," in which Congress explicitly defines the extent to which it pre-empts state law; "field pre-emption," in which the federal government regulates all conduct in one subject area; and "conflict pre-emption," in which state law is pre-empted because it prevents someone from complying with federal law. "We conclude," Justice Robert Mallano wrote, "that the city's permit requirement, as applied in this case, is pre-empted because it conflicts with the licenses granted by the FCC (conflict preemption) and because Congress intended the FCC, not local authorities, to determine the frequencies that a radio operator may use (field preemption)." The court, however, rejected Abrams's argument that the owner of an FCC license did not have to apply for a city permit at all. "The city has the right, consistent with federal law and in furtherance of the goals of the antenna ordinance, to grant or deny a permit for commercial use," the court held. But a city needs a legitimate reason to deny such a permit. The court cited cases in which denial was upheld because antennas would have disrupted a mountain slope, caused significant aesthetic impacts, and detracted from the character of a neighborhood. None of the cases had to do with permit denial based solely on the commercial use of an antenna. The Case: City of Rancho Palos Verdes v. Abrams, No. B151086, 02 C.D.O.S. 7584, 2002 DJDAR 9561. Filed August 20, 2002. The Lawyers: For the city: Carol Lynch, Richards, Watson & Gershon, (213) 626-8484. For Abrams: Wilkie Cheong, Cheong, Denove, Rowell, Antablin & Bennett, (310) 277-4857.