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HomeMy WebLinkAbout7.1 Zoning Regulations RE Antennas AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 30, 1989 SUBJECT: Zoning regulations regarding antennas REPORT PREPARED BY: Laurence L. Tong, Planning Director EXHIBITS ATTACHED: Exhibit A: Memorandum from Elizabeth A. Silver, Assistant City Attorney, October 24, 1989 RECOMMENDATION: tf ,(10 Consider whether to initiate a study to amend the Zoning Ordinance regarding antennas. FINANCIAL STATEMENT: None DESCRIPTION: At the Council meeting on October 9, 1989, the Council asked for a memorandum describing the current city regulations with respect to antennas and the current status of the law regarding regulation of antennas. In response, the City Attorney' s office has prepared the attached memorandum. Options The City Council could initiate an amendment study to the Zoning Ordinance regarding antennas keeping in mind that any regulations must reasonably accommodate satellite dish antennas and ham radio antennas, or the City Council could decide that no action is needed at this time. Should the City Council decide to initiate an amendment study, it would be helpful to Staff for the City Council to indicate which types of antennas and what concerns should be studied: A. TV/Radio Antennas B. Satellite dish antennas C. Ham radio antennas 1. Height 2 . Location 3 . Screening 4. Number 5 . Other aspects If a study is initiated, it would also be helpful for the City Council to indicate what priority it would have. The Planning Department has recently filled one staff position and is recruiting for three other staff positions. If the study is given a higher priority than the other current and advanced planning projects, Staff would shift resources away from those other projects, complete a legally defensible draft study in approximately 3 months, and schedule it for Planning Commission consideration and recommendation. If the study is not given a higher priority than the other projects, Staff will fill the positions being recruited, then work on the draft study along with the other projects. ITEM NO. I - I COPIES TO: Planning Files [a:LLT10-30:ga] -1- RECEIVED MEYERS, NAVE, RIBACK 8.WEST V 1 ry � MICHAEL R.NAVE APROFESSIONAL LAW CORPORATION UJ 4E S ICE STEVEN R.MEYERS 1220 HOWARD AVE..SUITE 250 • NATALIE E.WEST GATEWAY PLAZA DUBNIplyry�1cry` 421, ELIZABETH H.SILVER 777 DAVIS STREET,SUITE 300 (415)348-,17 MICHAEL S.RIBACK SAN LEANDRO.CALIFORNIA 94577 FAX(415)342-0886 MOLLY T.TAMI (415)351-4300 ANNE E.MUDGE FAX(415)351-4481 MARIN OFFICE MICHAEL F.RODRIQUEZ 1202 GRANT AVE..SUITE E NOVATO,CA 94945 • OF COUNSEL • (415)892-8878 THOMAS F.BERTRAND MEMORANDUM REPLY TO: San Leandro TO: City Council Date: October 24, 1989 FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas At the Council meeting on October 9, 1989, the Council asked for a memorandum describing the current City regulations with respect to antennas and the current status of the law regarding regulation of antennas. I. Different Types of Antennas There are three general categories of antennas. Television and radio antennas ("TV/radio antennas") receive signals only and are generally mounted on roof tops. Satellite dish antennas ("satellite dish antennas") also receive signals only but are typically larger than TV/radio antennas and may be mounted on roof tops or in yards. "Ham" radio antennas ("ham radio antennas") both receive and transmit signals and are typically higher than TV/radio antennas. II. Current City Ordinances • The only regulation of TV/radio antennas is section 8-60.9 of the Zoning Ordinance, which provides that "A television or radio antenna may be of a height not exceeding ninety (90) feet. " There are no specific provisions in the Zoning Ordinance regulating satellite dish antennas. The Planning Department has, however, consistently applied the 90-foot height restriction of section 8-60.9 to satellite dish antennas mounted on a roof top, thus restricting the total height of the house and the satellite dish antenna to 90 feet in height. If a resident wished to place a satellite dish antenna on the ground, the Planning Department has applied the provisions of the Zoning Ordinance relating to "accessory structures" (section 8-20.2) to require a six-foot separation from another structure (section 8-60.26) and a maximum • I TO: City Council FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas DATE: October 24 , 1989 PAGE: 2 height of fifteen feet (section 8-60.26. ) . Under the Zoning Ordinance, accessory structures can only be placed in the rear half of an interior lot (section 8-60.27.) or, generally, behind the set back lines on the side of a corner lot (section 8-60.28) . Ham radio antennas have been treated as radio antennas under section 8-60.9, allowing them to be 90 feet in height. There is no restriction in the current Zoning Ordinance on the number of antennas which may be placed on a particular parcel of land. III. Current Law Regarding Local Control of Antennas It has long been recognized that cities can exercise their police power authority over local land use to regulate antenna height. See Schroeder v. Municipal Court of Los Cerritos (1977) 73 Cal.App.3d 841, 141 Cal.Rptr. 85, upholding a municipal zoning ordinance that prohibited any antenna over 40 feet in height from the ground or 15 feet from the roof, whichever is less. This type of regulation of TV antennas is still valid. However,_ in recent years, the Federal Communications Commission ("FCC") has issued regulatory rulings which partially preempt local regulation of two types of antennas: satellite dish antennas and ham radio antennas. Those FCC rulings are discussed in the following paragraphs. A. Satellite Dish Antennas In 1986,the Federal Communications Commission issued a Report and Order (hereafter "FCC Order") which preempts local and state regulations that adversely affect the installation of "home earth station antennas" . The FCC Order (47 C.F.R. sec. 25. 104, FCC Docket No. 85-87) provides in relevant part: State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations: 1. have a reasonable and clearly defined health, safety or aesthetic objective; and 2 . do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of {, • 1 TO: City Council FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas DATE: October 24, 1989 PAGE: 3 such antennas that are excessive in light of the purchase and installation cost of the equipment (Emphasis added. ) The accompanying report to the Order states that "if a community chooses to enact an ordinance which differentiates in its treatment of different types of antennas, it must bear ahigh burden. " (paragraph 33) Recent court decisions have embraced a rather strict interpretation of the FCC Order. For example, in Van Meter v. Township of Maplewood (1988) 696 F.Supp. 1024, the U.S. District Court, New Jersey, held that a local ordinance of the City of Maplewood, which restricted the placement (prohibited roof mounts) , screening, and type of dish antenna that a citizen could install, was preempted by the FCC Ruling and Order. The Court ruled that the ordinance functioned as an unreasonable burden on the plaintiff's right to reception of television signals because its provisions made reception technically impossible and because it was generally insensitive to the "unique conditions that govern site reception on any given site. " Specifically, the Van Meter court determined that the ordinance's installation and screening provisions were unreasonable. While the court found that the FCC Order did not require an ordinance to permit "optimal placement" of a dish antenna, it held that the City's "per se" prohibition on roof installations failed to provide options for dish owners whose reception was either diminished or effectively blocked by rear lot installation. With regard to the ordinance's screening provisions, the court stated that in some instances the required screening might unreasonably impair or limit an antenna's reception capabilities and impose costs above or equal to the initial costs a citizen would expend in purchasing dish equipment. The Van Meter court also rejected the City's assertion that a citizen' s option to apply for a variance provided adequate relief from the ordinance's restrictive provisions, since it believed that the process involved in granting variances, which called for an analysis of the public good and maintaining the integrity of the ordinance itself, was heavily weighed in favor of the City's interests. There was no provision in the variance process which mandated that due consideration be given to the recognized rights of satellite dish owners. The court also found the variance procedure to be lacking in well defined standards, and a costly procedure for antenna users to endure. TO: City Council FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas DATE: October 24, 1989 PAGE: 4 In summary, the Van Meter case stands for the proposition that the FCC has determined that when community and individual interests clash over the issue of a citizen' s right to receive television signals, the interests of the individual and the national interest require that the balance be tipped in favor of permitting individual satellite television reception. (See also, Miners v. Rose (1986) 507 N.Y.S.2d 241, N.Y. Supreme Court held that a local zoning ordinance, which contained a provision that effectively banned satellite dishes from the area in questions, was in conflict with the FCC Order. ) B. Ham Radio Antennas The law relating to "ham" radio antennas was addressed in my memorandum of September 28, 1989, to Paul Rankin, which you previously received. For ease of reference, I will incorporate most of that discussion in this memorandum. In 1985, the Federal Communications Commission issued a ruling entitled "Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, " 101 FCC 2d 952, 50 Fed.Reg. 38,813 (1985) ("PRB-1") . In PRB-1, the FCC addressed the tension "between the federal interest in promoting amateur [radio] operations and the legitimate interests of local governments in regulating local zoning matters. " PRB-1 at 9. In the belief that "a reasonable accommodation may be made between the two sides, " the FCC sought to "strike a balance. " With regard to local regulation of antenna height, the FCC stated as follows: Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. . . . We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably • f TO: City Council FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas DATE: October 24, 1989 PAGE: 5 amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose. Local regulation aimed at health, safety or aesthetic considerations is thus valid if it "reasonably accommodates" amateur radio communications. The only restriction in the Dublin Zoning Ordinance with respect to "ham" radio antennas is contained in Section 8-60.9, which states: "a television or radio antenna may be of a height not exceeding ninety (90) feet. " The ordinance was enacted to "promote and protect the public health, safety, peace, comfort, convenience and general welfare. . . " (Section 8-19.1) . Given the only limitation in the current City ordinance is on height, it would seem to reasonably accommodate "ham" radio operators and thus appears to be a valid local regulation. If the City wished to amend its current ordinance to further regulate such antennas, we believe it could do so, so long as the revised ordinance reasonably accommodates the amateur radio operator. While it is clear that the City may regulate placement of "ham" radio antennas in furtherance of its legitimate interests, including aesthetic considerations, it must do so in a manner which reasonably accommodates the owner's radio activities and must tailor the regulation to create the minimum interference with those activities consonant with promotion of the legitimate local interest at stake. C. Summary 1. TV/Radio Antennas The City's 90-foot height limit on TV and radio antennas is clearly valid. 2. Satellite Dish Antennas Inasmuch as the current City ordinances do not differentiate between satellite dish antennas and other types of antennas, the City's ordinances would not be subject to review under the FCC Order but would be judged under the general test enunciated in Schroeder. The City's current ordinances, allowing satellite dish antennas in yards with certain restrictions and on roofs, would no • 1 TO: City Council FROM: Elizabeth H. Silver Assistant City Attorney RE: Antennas DATE: October 24, 1989 PAGE: 6 doubt be upheld as valid under the City's police power. 3 . "Ham" Radio Antennas The 90-foot restriction on "ham" radio antennas is a reasonable accommodation to the interests of amateur "ham" radio operators and would thus be upheld under PRB-1. IV. Conclusion Whether the Council wishes to make any changes in the current ordinances with respect to (1) the height of TV/radio antennas and ham radio antennas, (2) the number of antennas which can be located on a lot or (3) specific regulation of satellite dish antennas is a policy question for the Council. An ordinance which places a maximum height limit of something less than 90 feet for TV/radio antennas would probably be valid. Likewise, we believe that the number of antennas of one type on a parcel can be restricted. If the ordinance were to be so revised, there should be evidence that the interest of "ham" radio operators could be reasonably accommodated by a lower height limit and a restriction on the number of antennas. This requires some investigation by staff of the maximum height and number of antennas which would reasonably accommodate such communication. I will be at the Council meeting to answer any questions regarding this memorandum. MEYERS, NAVE, RIBACK & WEST L6a6A- Elizabeth H. Silver EHS:dlg _. cc: Richard Ambrose 1/Larry Tong 1