CC RES 2018-061 RESOLUTION NO. 2018-61
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES REVOKING IN ITS ENTIRETY
AND EFFECTIVE IMMEDIATELY CONDITIONAL USE
PERMIT NO. 230 FOR THE INSTALLATION OF
COMMERCIAL ANTENNAS AND RELATED SUPPORT
STRUCTURES AT 26708 INDIAN PEAK ROAD.
WHEREAS, on June 21, 2001, the Applicant/Appellant, Mr. James A. Kay, Jr.,
submitted applications for Conditional Use Permit No. 230 and Environmental
Assessment No. 744 for after-the-fact approval to establish the then-existing 5-masted,
roof-mounted antennae and related support structures and equipment on the site for
commercial use; and,
WHEREAS, on September 19, 2001, the applications for Conditional Use Permit
No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and,
WHEREAS, pursuant to the provisions of the California Environmental Quality Act,
Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines,
California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA
Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and
Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and
Environmental Assessment No. 744 would not have a significant effect on the
environment and, therefore, the proposed project was determined by Staff to be
categorically exempt (Class 1, Section 15301); and,
WHEREAS, after the submittal of these applications on June 21, 2001, and while
the Planning Commission was conducting the public hearings on this application, the
Applicant installed at least twelve (12) additional vertical antenna masts with attached
antennae onto the previously existing roof-mounted antenna support structure and array,
including additional cables and conduits for the additional antennae; and on November 8,
2001, the Applicant submitted revised plans to the City depicting a total of twenty (20)
vertical antenna masts with attached antennae on the roof-mounted antenna support
structure and array; and,
WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos
Verdes Development Code, the Planning Commission held a duly noticed public hearing
on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all
interested parties were given an opportunity to be heard and present evidence; and,
WHEREAS, the Planning Commission, on November 15, 2001, adopted
P.C. Resolution No. 2001-43 conditionally approving the project; and,
WHEREAS, Mr. Kay timely appealed conditional approval by letter dated
November 28, 2001, based on disagreement with "all conditions regulating the location,
number and placement of antennas on the project site...."; and,
WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos
Verdes Development Code, the City Council held a duly noticed public hearing on
February 19, 2002, March 19, 2002, March 25, 2002 and April 16, 2002, at which time all
interested parties were given an opportunity to be heard and present evidence; and,
WHEREAS, the City Council, on April 16, 2002, adopted Resolution No. 2002-27,
thereby denying the appeal, modifying certain conditions of approval and conditionally
approving the project; and,
WHEREAS, on May 15, 2002, Mr. Kay filed suit against the City in Federal District
Court in order to overturn the City's decision on the grounds, among other things, that it
violated the Telecommunications Act of 1996; and,
WHEREAS, on July 14, 2004, the United States District Court for the Central
District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the
"City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James
A. Kay, Jr. to use his five (5) mast antenna structure for commercial purposes, subject to
reasonable conditions"; and,
WHEREAS, the City revised the conditions of approval for Conditional Use Permit
No. 230 to allow the commercial use of Mr. Kay's 5-mast, roof-mounted, antenna array,
which existed at the time and was depicted on plans provided to the City of Rancho Palos
Verdes with the original submittal of the application for Conditional Use Permit No. 230
on June 21, 2001; and,
WHEREAS, this matter was agendized for the City Council's review and
consideration on October 5, 2004, and November 16, 2004, but on both occasions the
matter was continued to a subsequent City Council meeting at Mr. Kay's request in order
to allow his legal counsel to discuss additional proposed revisions to the conditions of
approval for Conditional Use Permit No. 230 with the City Attorney; and,
WHEREAS, the City Council, on December 21, 2004, adopted Resolution
No. 2004-109, thereby revising eight (8) conditions of approval for Conditional Use Permit
No. 230 pursuant to the July 14, 2004, order of the United States District Court; and,
WHEREAS, Mr. Kay subsequently petitioned the United States District Court to
vacate the conditions of approval imposed by Resolution No. 2004-109; and,
WHEREAS, on April 4, 2005, the United States District Court issued an order in
response to Mr. Kay's petition, finding that the provisions of Condition No. 19 of
Conditional Use Permit No. 230 requiring "that Mr. Kay maintain the property as his
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primary residence [were] not reasonable," but also finding that all other conditions of
approval imposed by Resolution No. 2004-109 were reasonable; and,
WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos
Verdes Development Code, on July 5, 2005, the City Council adopted Resolution
No. 2005-75 revising the language for Condition No. 19 of Conditional Use Permit No.
230 thereby requiring that Mr. Kay complete necessary improvements to make the house
habitable, including but not limited to, a functional kitchen and bathroom, and connections
to utilities, along with weekly landscape and maintenance services; and,
WHEREAS, on November 28, 2014, the City issued Mr. Kay a Notice of Violation
for the installation of unpermitted roof-mounted antennas resulting in a total of thirteen
(13) roof-mounted antennae and support pole masts, well in excess of the five (5) City
Council-approved, roof-mounted antennae and support pole masts. The City ordered the
removal of all but the five (5) City Council-approved roof-mounted antennae and support
pole masts from the roof, and requiring that the remaining five (5) City Council-approved,
roof-mounted antennae and support pole masts comply with the City Council-adopted
Conditions of Approval for Conditional Use Permit No. 230; and,
WHEREAS, on July 26, 2016, the City set a thirty (30) day period for compliance
with the November 28, 2014, Notice of Violation. At the request of Mr. Kay, the City, in
good faith, granted a time extension to this compliance deadline to October 28, 2016;
and,
WHEREAS, on October 28, 2016, a Conditional Use Permit revision application
(Planning Case No. ZON2016-00517) was submitted to the City requesting to legalize the
unpermitted roof-mounted antennas; and,
WHEREAS, on November 23, 2016, the application was deemed incomplete for
processing, and because the application originated from code enforcement action, the
Applicant was given thirty (30) days, or until December 21, 2016, to submit the requested
additional information in order continue processing the application; and,
WHEREAS, on March 21, 2017, the City received a letter from Mr. Kay's legal
counsel, Mr. Nakasu, asserting that the application to revise Conditional Use Permit
No. 230 with an after-the-fact amendment should be granted pursuant to RPVMC
§17.76.020(A)(12)(b); and,
WHEREAS, on April 14, 2017, the City Attorney responded by outlining the City's
position that, pursuant to Resolutions 2002-27, 2004-109, and 2005-75, the five (5) City
Council-approved, roof-mounted antennae and support pole masts "refer only to the
antennae and antenna array depicted in the plans submitted to the City on June 21, 2001,
in photographs accompanying the application to revise CUP No. 230, and Environmental
Assessment No. 744." Further, the City Attorney stated that any suggestion that additional
antennae, support pole masts, and other structures were mere modifications not requiring
City Council approval directly contravened the binding resolutions; and,
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WHEREAS, on June 28, 2017, City Staff, the City Prosecutor, Mr. Nakasu, and
Mr. Kay met to discuss this matter, at which time, Mr. Nakasu indicated that the antennae
and support structures were "outdated" and "obsolete" and that they could be replaced
with an alternative structure that would both address the telecommunications capacity
needs, as well as the City's safety and aesthetic concerns with the current structures.
Four months elapsed from the June 28, 2017, meeting, during this time, Mr. Kay did not
make any further attempts to cure the application deficiencies in order to proceed with
processing a revision to CUP No. 230, or to rectify the technological obsolescence of the
existing structures; and,
WHEREAS, on October 19, 2017, Staff granted, in good faith, Mr. Kay additional
time to submit the requested information in order for Mr. Kay to acquire a new permit
expediter company; and,
WHEREAS, on October 23, 2017, the City Prosecutor sent a letter to Mr. Kay and
Mr. Nakasu, the purpose of which was to summarize events subsequent to the June 28,
2017, meeting, to reiterate the deficiencies in the CUP No. 230 revision application, to
discuss potential replacement of current, "obsolete," structures, and to discuss the
potential for reinstating the Code Enforcement case, should the City's demands not be
met; and,
WHEREAS, on December 13, 2017, City Staff, City Prosecutor, Mr. Nakasu, and
Mr. Kay met, and at this meeting, Mr. Kay proposed alternative designs to replace the
existing antennae, such as a faux monopole tree or new roof antennae on the rear yard-
facing roof pitch, that would address the City's concerns and meet the needs of the
commercial antennas. As a result, it was agreed that Mr. Kay would submit, by mid-
January 2018, a concept drawing regarding a proposed alternative design for the City's
initial review, followed by an application for the CUP on or before February 28, 2018. To
date, the City has not received any information from Mr. Kay or his legal counsel; and,
WHEREAS, in accordance to RPVMC §17.60.080, if any of the conditions to the
use or development are not maintained, then the Conditional Use Permit shall be null and
void. Furthermore, the continued operation of a use requiring a Conditional Use Permit
which is found to be noncompliant with any condition of a Conditional Use Permit shall
constitute a violation of the Municipal Code; and,
WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos
Verdes Municipal Code, the City Council held a duly-noticed public hearing on August 21,
2018 to consider revoking Conditional Use Permit No. 230, at which time all interested
parties were given an opportunity to be heard and present evidence.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
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Section 1: Having heard and considered the oral, written, and documentary
evidence presented at the duly-noticed public hearing conducted by the City Council on
August 21, 2018, the City Council makes the following findings:
A. The property located at 26708 Indian Peak Road, Rancho Palos Verdes,
California, (the "Subject Property") is the subject of Conditional Use Permit
No. 230 ("CUP No. 230"), as granted by the City Council in Resolution No.
2004-109, and as amended by Resolution No. 2005-75. The Applicant, Mr.
James A. Kay, Jr., did not successfully challenge, within the time provided
by law, Resolution No. 2005-75, and has from and after the adoption of
Resolution No. 2005-75 (the "CUP Date") accepted the benefits of CUP No.
230.
B. CUP No. 230 required removal of all but five (5) of the existing eight-and-
on-half-foot long masts and two of the television antennae from the roof,
authorized a maximum of five (5) vertical masts, each with a height of eight
and one-half (81/2) feet, and not more than four (4) radiating per each mast.
C. Condition of Approval No. 2.d states in part, "Any additional exterior
antennae, masts or other antenna and support structure(s) shall require
further approval or modification of this conditional use permit."
D. Further, Condition of Approval No. 2 goes on to state that the Director is
authorized to make only minor modifications to the approved plans and
conditions of approval. "Otherwise, any substantive change, such as the
enlargement, expansion or addition to, the exterior masts and antennae that
this approval allows outside of the exiting residential structure shall require
approval of a revision to Conditional Use Permit No. 230 by the City Council
and shall require a new and separate environmental review."
E. The Subject Property has at various times from after the CUP Date had
installed antennae and/or vertical masts on the roof as testified to by staff
and depicted in photographic evidenced submitted into the Administrative
Record. Such evidence discloses installation of as many as twelve (12)
additional vertical masts (the "Additional Masts") over and above the five (5)
permitted by CUP No. 230.
F. Mr. Kay has failed to provide any evidence that any permits of any kind
(zoning, building, etc.) were obtained by him, directly or by an agent acting
on his behalf, authorizing the construction of the Additional Masts. Written
correspondence from his attorney admits such construction has occurred,
does not contest to permits were obtained in advance, and has confirmed
such by submitting an incomplete application for an "after-the-fact" permit
for the Additional Masts.
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G. City records fail to show any action by the City Council subsequent to
Resolution No. 2005-75 modifying, amending, or otherwise affecting CUP
No. 230 to allow installation of more than five (5) vertical masts on the
Subject Property. Further, although the City Council finds it would not
properly be the subject of a minor modification, staff has indicated that no
application for a minor modification was approved by the Director to that
effect.
H. The City staff has made various efforts to resolve these issues short of a
revocation beginning in 2014. Despite numerous meetings, exchanges of
correspondence, and opportunities to come into compliance with CUP No.
230 or, in the alternative, apply for a modification to CUP No. 230 to
retroactively permit the Additional Masts, Mr. Kay has not diligently pursued
any remedial opportunity and has continued to operate the unpermitted
facilities while essentially "stringing along" the City.
I. Based upon all the evidence presented, and after hearing the arguments
and testimony on behalf of Mr. Kay, the public, and City staff, the City
Council finds the evidence of construction of the unpermitted Additional
Masts to be essentially uncontested in that Mr. Kay has admitted they exist.
The City Council finds that no permits of any kind (zoning or building) were
obtained by Mr. Kay and therefore the construction of the Additional Masts
was in violation of the Rancho Palos Verdes Municipal Code and the
specific provisions of the Conditions of Approval relating to modification or
expansion of the use of the antennae structure by the increase in the
number of masts above the five (5) permitted by CUP No. 230.
J. The City Council further finds that the violation directly impacts surrounding
properties due to the increased visual impact of commercial antennae which
the limitation on the number of vertical masts was narrowly tailored to
address, and that the Subject Property owner has repeatedly and knowingly
violated the Conditions of Approval by the installation of the Additional
Masts without any permits or other legally-required approvals, and
subsequently has availed himself of numerous opportunities to come into
compliance with the terms of CUP No. 230 such that revocation is the
appropriate action and is necessary to protect the legitimate interests of the
community.
Section 2: Based on the information included in the Staff Report, the testimony
and evidence presented at the public hearings in the past before the Planning
Commission and the City Council, the administrative records related to those prior
proceedings, the Minutes and the other records of this proceeding on file with the City,
the City Council of the City of Rancho Palos Verdes hereby revokes Conditional Use
Permit No. 230, as amended, in its entirety.
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PASSED, APPROVED, AND ADOPTED this 21st day of August 2018.
4cALAJ(4e12.44_
Mayor
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State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2018-61 was duly and regularly passNjand adopted by the said
City Council at a regular meeting thereof held on August 21, 2►j 8.
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dirM
limaimpClerk
Resolution No. 2018-61
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