Greetings. The following memo relates to the recent California Court of Appeals decision in the Zubarau antenna case. Please keep the discussion of strategy contained in this memo confidential for obvious reasons. The facts of the Court's opinion are of course public information. Let me know any questions you have concerning this case. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper. P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG MEMORANDUM To: The Board of Directors; Dan Henderson From: Chris Imlay, W3KD Re: Zubarau v. City of Palmdale, CA; Decision of the California Court of Appeals, Los Angeles Date: February 3, 2011 Greetings. On January 27, 2011, the California Court of Appeals, Second Appellate District issued its Opinion in the Alec Zubarau case. The decision is, in my view and in the view of ARRL Volunteer Counsel Len Shaffer WA6QHD (who has handled this case quite competently and entirely pro bono, a mixed bag: in several important respects, it is a win for Amateur Radio. In other respects, it is a problem. The opinion is explained below. I have just concluded a conversation with Len. It is his firm plan at this point to prepare a Request for Rehearing with the same appellate panel in the Court of Appeals. This will be filed on or before February 11. After that, a further appeal to the California Supreme Court is probable, but of course dependent on the outcome of the Petition for Rehearing. To recap the facts and the history of this case (which are critical to an understanding of the Court of Appeals’ Opinion), Zubarau had a 55-foot tower installed, for which he had a land use permit from the City of Palmdale. He applied for the permit only for the tower, on the theory that he wanted to periodically replace the antennas atop the tower. He installed a 4 element SteppIR yagi atop the tower, which unfortunately arguably encroached on the setback in the ordinance. Alec also had a small vertical on his roof which, Len argued to the Court, was effective for only VHF and UHF local communications and was not for HF communications at all. The neighbors complained to the City, and presented 68 signatures on a petition to ask the City to order the antenna taken down. Alec took down the SteppIR, but left the tower standing. The City ordered the tower dismantled (and the permit they had granted Alec for the tower revoked) because of some unsupported concerns about safety in view of possible high winds or earthquakes, aesthetic impact, and “inconsistency with the neighborhood” but with no factual findings about the safety or aesthetic impact at all. The City attempted to apply its ordinance as a discretionary one (as though it was a conditional use permit type of approval that could be revoked due to subjective criteria). It is in fact a ministerial ordinance, and the City had no basis for ordering the tower removed. The ordinance includes a provision that bans any antenna user from causing RFI. Len sued the City, and in so doing challenged the ordinance on its face (because it was unconstitutionally vague and because it attempted to regulate RFI); and he challenged the reasonableneness of the City’s ordering the tower removed. He asked for an award of attorney’s fees. The trial court held ONLY that the city erred in ordering Zubarau to remove his 55-foot tower. The trial judge held that the City did not err in ordering Zubarau to remove his 4 element SteppIR antenna which Alec had placed atop the tower without a modified or additional permit. In essence, the trial court granted judgment to Zubarau only on count one of the three-count petition Len filed. The trial court did not grant relief on count 2, which asked for a writ of mandate declaring the Palmdale ordinance void as preempted for various reasons. Neither did it grant count 3, which asked for a declaratory judgment holding that the ordinance was unconstitutionally vague and unenforceable because it was indecipherable as to its requirements. The City appealed the grant of relief on count 1, and Len appealed the denial of counts 2 and 3 and the denial by the trial judge of an award of attorney’s fees under the California “private attorney general” statute. The trial court found on the attorney’s fees issue that Len had shown that he had substantially prevailed in the protection of an “important right” belonging to Zubarau; but that the benefit of the judgment on count 1 of the complaint only benefited Zubarau and not others generally. Finally, the trial judge had found that it was not clear that Zubarau had any expenditures because Len was handling the case pro bono. Len had cases, however, that showed that even where attorneys represented a plaintiff pro bono, attorney’s fees were awardable under the PAG statute. As to the benefit beyond Zubarau, Len was prepared to argue that because count 1 of the complaint was decided favorably to Zubarau at least in part on the basis of the California PRB-1 statute, thus making this case one of first impression with respect to that statute, it served as the basis for establishing an entitlement to be enjoyed by other radio Amateurs in California. The case went to the California Court of Appeals on appeals by both the City (arguing that it was within its rights to order the tower dismantled) and by Zubarau (on the basis that the ordinance was unconstitutionally vague; that it was preempted in several respects, and that the award of attorney’s fees should have been made to Len because the case established a precedent that was of value to all of the hams in California. ARRL was, very unusually, allowed to file an Amicus Curiae brief, and I attended the oral argument with Len. Zubarau did not attend. The Court asked some questions that concerned us, signaling that they were interested in salvaging the ordinance if they could do so. The ordinance in this case is, quite literally, indecipherable. It provided in essence that an amateur radio vertical antenna can be erected to a height of up to 75 feet above ground level, but that the “active element” of the “array” was limited to 30 feet (where that 30 feet was to be measured from is unclear) except as otherwise regulated by FAA or FCC. There is no definition of “active element” or “array” in this context. The City did not order Alec’s vertical rooftop support for VHF and UHF operation removed. The Court of Appeals, three times, ordered additional briefing on various issues. They asked whether Zubarau had standing to raise his arguments and whether or not they were ripe for adjudication. Other briefing issues concerned the interpretation of the ordinance. It was clear that the Court wanted to know whether or not the ordinance could be reasonably interpreted. The Court’s Opinion was 25 pages long. It was followed by a dissent from Judge Turner, and then by several photographs (very prejudicial ones) showing the tower and the SteppIR antenna mounted atop it. They were clearly intended to show the aesthetic impact of the tower and antenna. The Court first found that the ordinance, as it pertained to the height limit for vertical antennas, was “unenforceable” (not invalid, but unenforceable), because it allowed an Amateur to have a vertical antenna up to 75 feet high when measured from the ground but limited the “active element of the antenna array” to 30 feet (with no reference as to how that 30 feet is measured. The court found that the ordinance did not define “array” or “active element” and did not specify from where the 30 permitted feet for such “array” was to be measured. Although the Court found that if even one reasonable interpretation of the ordinance could be ascertained on the face of it, it could be salvaged, but in this case, the Court said, no one could understand what the limitations were and how it could be applied, and so declared that portion of the City’s ordinance unconstitutional and therefore unenforceable. In this respect, the City was chastised to some extent by the Court’s opinion, because the Court had thrown softballs to the City in an effort to salvage the height limit portion of the ordinance, but the City could not itself come up with a coherent interpretation. The Court also held that the ordinance was unenforceable to that extent that it attempted to regulate radio frequency interference. This was expected and essentially a “given”; the City did not come up with a serious argument that it could regulate RFI. It arrogantly maintained that it could, but the Court (citing verbatim and in order the case law and the argument in the ARRL Amicus brief) held, as did all the prior cases, that only the FCC could regulate RFI and any State or municipal law that attempted to regulate it was preempted. The problem with the case though is that the Court held that Palmdale properly ordered the permitted tower as well as the SteppIR antenna dismantled. The Court seemed to say that the VHF/UHF vertical on the roof constituted “reasonable accommodation” under PRB-1 and the California PRB-1 statute. The Court said that leaving Zubarau with a VHF/UHF antenna constituted a reasonable accommodation because it allowed him to be active in some part of amateur radio. There was no analysis of the “minimum practicable regulation” test in PRB-1 and the California PRB-1 statute, so that part of the three-prong test was left unexamined. Because the Court reversed the trial court on this finding, Len had no longer clearly “substantially prevailed” in this case and so the Court remanded the case to the trial judge to re-examine the attorney’s fees award, taking into account the entirety of the Court of Appeals’ decision. This outcome was discouraging, because of the Court’s application of the “reasonable accommodation” standard of PRB-1 and its ignoring large portions of the record. It is only a very surgical argument that will be made by Len in his petition for rehearing. A “mini-brief” that I will help Len write will be submitted by February 11. Len is not optimistic about the chance of success on rehearing, but he has conferred with a California appellate advocacy expert that he knows. This expert advised Len to file the petition for rehearing because it allows a focusing of the issues to go to the California Supreme Court. The expert also suggested that there is a good chance that the California Supreme Court will in fact agree to hear the case. The points that Len will make on rehearing include the following: (1) that the Court of Appeals ignored or didn’t address the record that shows that the VHF/UHF antenna was insufficient to conduct any international communications, and that the tower was necessary in order to conduct international communications and to permit Zubarau to have even a 50/50 chance of contacting his native Belarus on a given day; (2) that the Court did not apply any reasonable accommodation test as that test has been articulated by FCC and in the case law, and it did not apply the “least practicable restriction” test at all; (3) that the Court in this case in essence applied a balancing test which FCC and several Federal courts have said is improper in conducting the PRB-1 analysis; (4) the court erred in holding that any accommodation for a radio amateur is reasonable accommodation, and that it is not sufficient to simply permit some participation by a radio amateur in some manner. Instead, the FCC regulation permits effective, reliable communications and the Court ignored the obligation in this instance to determine the such necessitates maintenance of the tower at least. As to the attorney’s fees issue, it was heartening that the Court did not eliminate the potential for an award under the California private attorney general statute. So, this case is very much of a mixed bag. We will keep you informed about further actions in this very important case as it progresses. 73, Chris W3KD