CC SR 20191217 04 - 26708 Indian Peak Road Appeal of Public Nuisance Abatement
01203.0035/620951.1
CITY COUNCIL MEETING DATE: 12/17/2019
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration of, and ruling on, the “Notice of Appeal,” filed pursuant to RPV Municipal
Code § 8.24.040(D), by legal counsel for Indian Peak Properties, LLC, appealing that
certain “Notice and Order to Abate a Public Nuisance,” duly posted and duly served for
those certain premises described as Lot 80, Assessor Parcel No. 7577-013-030, whose
common street address is 26708 Indian Peak Road, Rancho Palos Verdes, California.
RECOMMENDED COUNCIL ACTION:
(1) Staff recommends that the City Council adopt Resolution No. 2019-___, A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DENYING THE APPEAL OF THE CITY’S NOTICE AND ORDER TO
ABATE A PUBLIC NUISANCE AND ORDERING THE ABATEMENT OF THE
PUBLIC NUISANCE EXISTING AT THE PROPERTY LOCATED AT 26708
INDIAN PEAK ROAD.
FISCAL IMPACT:
The estimated cost for the city to abate this public nuisance, if not voluntarily abated by
the property owner, is approximately $9,750. Thereafter, the City Council is permitted to
order a special assessment and lien after an order to abate nuisance conditions has
been issued by the City and not followed.
Prior to the lien process, the City provides the property owner with an invoice for all
actual costs of the abatement. The property owner is afforded the opportunity to
reimburse the City for all costs, without the added cost of processing th e lien on the
property for the abatement costs.
Amount Budgeted: $60,000
Additional Appropriation: N/A
Account Number(s): 101-400-4140-5101
Professional/Technical Services
ORIGINATED BY: Lum T. Fobi, Deputy City Prosecutor
REVIEWED BY: William W. Wynder, City Attorney
APPROVED BY: Ara Mihranian, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2019 -___
B. Alternative Resolution No. 2019-___
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C. Resolution No. 2005-75
D. Resolution No. 2004-109
E. Resolution No. 2002-27
F. Resolution No. 2018-61
G. August 29, 2018 Cease and Desist Letter to Indian peak
H. May 23, 2019 Stop Work Order
I. May 23, 2019 Administrative Citation I
J. May 24, 2019 Administrative Citation II
K. August 9, 2019 Court Ruling in Writ Case
L. December 5, 2019 Court Judgment in Nuisance Case
M. November 27, 2019 Notice and Order to Abate a Public Nuisance
N. November 27, 2019 Photo of Posting of Notice and Order to Abate
O. December 6, 2019 Notice of Appeal
P. Bid for Abatement of Public Nuisance
EXECUTIVE SUMMARY:
Conditional Use Permit No. 230 (“CUP 230”) for installation of limited roof-mounted
commercial antenna structure afforded Indian Peak Properties, LLP, was lawfully
revoked by the City Council for violation of the terms of that permit. The continued
maintenance of these commercial roof-mounted antennas constitutes a violation of the
City’s Municipal Code and is a public nuisance. The City has issued a Notice and Order
to Abate a Public Nuisance for Indian Peak’s unpermitte d use. Indian Peak has filed a
Notice of Appeal of the City’s Notice and Order.
BACKGROUND AND DISCUSSION:
The City Council approved Conditional Use Permit No. 230 (“CUP 230”) via the
adoption of City Council Resolution No. 2002-27, as amended by Resolution Nos. 2004-
109 and 2005-75. (Attachments C, D and E.) CUP 230 authorizes the use of a roof-
mounted commercial antenna structure at the property located at 26708 Indian Peak
Road (“Subject Property”). The conditions for approval for CUP No. 230 provided that
the antenna structure may consist of a maximum of five (5) vertical antenna masts,
each which shall not exceed eight and one-half (8 ½) feet in height, and each with up to
four (4) radiating elements affixed thereon, and two (2) television antennae.
Specifically, Condition No. 2(d) states, among other things, that “[a]ny additional exterior
antennae, masts, or other antenna support structure(s) shall require further approval or
modifications of this Conditional Use Permit.” Furthermore, Condition No. 10 states that
“[t]he five roof-mounted masts and the two television antennae approved by this
resolution shall not be increased or expanded without the advance approval of the City
Council, including, but not limited to, any additional antennae, masts, antennae support
structures, antenna assemblies or radiating elements of any kind.”
In November 2014, the City inspected the Subject Property in response to a complaint
regarding the roof-mounted antenna structure on the Subject Property. The City
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discovered the use of at least eleven (11) roof-mounted vertical antennae masts on the
Subject Property, well over the five (5) City Council-approved antennae masts. On
August 15, 2015, October 14, 2014, and October 28, 2014 , the City issued Notices of
Violation, ordering the removal of all but the five (5) City Council-approved roof-mounted
antennae masts, and requiring that the remaining five (5) antennae mast comply with
the City Council-adopted conditions of approval for CUP No. 230.
During the extensive communications between City Staff, the City Attorney’s Office and
the attorneys for the property owner, Indian Peak Properties, LLC (“Indian Peak”), the
City continuously reinforced the terms of CUP No. 230 by requiring Indian Peak to
revert to the original five (5)-mast antennae structure as authorized by CUP No. 230 or
to submit an application for modifications to CUP No. 230. In its responses to the City,
Indian Peak requested that the Director of Community Develop grant over-the-counter
approval of the additional unpermitted antenna pursuant to RPVMC §
17.76.020(A)(12)(b) as a minor modification of the commercial antenna structure. In its
response, the City reiterated that it would not approve any after-the-fact request for
additional antennas beyond those permitted by CUP No. 230, and that Indian Peak
would need to either remove the excess antenna structures, or apply for a modification
to CUP No. 230.
In its July 26, 2016 letter to Indian Peak, the City indicated that the standard application
for revision to an existing conditional use permit would be required, but provided tha t
Indian Peak may submit the information required under RPVMC § 17.76.020(A)(12)(b)
rather than the more extensive information required under RPVMC § 17.76.020(A)(11),
with the exception of the frequency compatibility study. RPVMC § 17.76.020(A) governs
the City’s regulation of commercial antennas.
On October 28, 2016, after being granted numerous time extensions to its compliance
date, Indian Peak submitted an application for revision of CUP No. 230. On November
23, 2016, the City sent Indian Peak a letter indicating that the application had been
determined to be incomplete. The City attached a list of Additional
Information/Requirements that needed to be complied with in order to deem the
application complete, and provided that “[a]t this time, Staff is unclear as to what is
specifically being requested (i.e. number of additional antennas, new equipment, etc.). It
will be necessary for Staff to have a clear understanding of what was existing and
approved by previous Resolutions, versus what is currently being proposed that
warrants the Conditional Use Permit Revision.”
RPVMC § 17.60.020(C) authorizes the City to investigate the facts of each application.
The City sought additional information regarding:
The height of the existing permitted antenna masts and the height of the
proposed antenna masts, which was not provided in the revision application;
A Site Plan for the Subject Property, which is required by the standard
application for revision to an existing conditional use permit, but was not pro vided
in the revision application;
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Evidence of compliance with applicable federal regulations, or evidence of a
good faith effort to obtain such evidence, pursuant to RPVMC §
17.76.020(A)(10);
A description of anticipated maintenance needs, pursuant to RPVMC §
17.76.020(A)(6);
Clear photographs of the roof-mounted antenna structure; and
A description of plans to mitigate the visual impacts of the proposed antenna
structures which appear to be at a height of over fourteen (14) feet, where as
CUP No. 230 permitted the antenna masts at a maximum height of eight and
one-half (8 ½) feet.
Following the City’s incomplete determination, Indian Peak sent numerous written
communications asserting that the application to revise CUP 230 with an after-the-fact
amendment should be granted as is, with no additional information, because the
modifications to the permitted antenna structure is subject to over-the-counter approval
under RPVMC § 17.76.020(A)(12)(b).
Condition 2 to CUP 230 states that “[t]he Director of Planning, Building and Code
Enforcement is authorized to make only minor modifications to the approved plans and
any conditions of approval, and only if such modifications will achieve substantially the
same results as would strict compliance with the a pproved plans and conditions.
Otherwise, any substantive change, such as the enlargement, expansion or addition to,
the exterior masts and antennae that this approval allows outside of the existing
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.”
Furthermore, the same limitation to director approval of minor modifications in strict
compliance with the approved plans and conditions of a conditional use permit is
provided for in RPVMC § 17.78.040(C).
Therefore, in its April 14, 2017 response to Indian Peak, the City reaffirmed that any
suggestion that additional antennae mast or other structures were mere minor
modifications not requiring City Council approval directly contravened the binding
Resolutions establishing CUP 230. The letter restated the application’s deficiencies and
offered additional time to cure them.
On June 28, 2017 and on December 13, 2017, Indian Peak met with the City to discuss
the matter. During both meetings, Indian Peak agreed to submit additional information
to cure the application deficiencies in order to proceed with the revision application for
CUP 230. The City never received any additional information from Indian Peak to cure
the application deficiencies.
On August 21, 2018, the City Council held a duly-noticed public hearing to determine
whether to revoke CUP No. 230 as a result of Indian Peak’s ongoing violations and
failure to submit a complete application for modification of CUP No. 230. Notice was
sent out for the public hearing on August 2, 2018, nineteen (19) days before the
hearing. A new attorney representing Indian Peak appeared at the hearing and
requested that the hearing be continued because Indian Peak had prepared plans for
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putting a cover over the antenna structure. Indian Peak did not provide any defense, but
rather admitted its violation of the terms of CUP No. 230 by its use of more than the five
(5) permitted roof-mounted antenna masts.
Under RPVMC § 17.60.080, “[i]f any of the conditions to use or development are not
maintained, then the conditional use permit shall null and void. Continued operation of a
use [ ] found in noncompliance with any condition of a conditional use permit shall
constitute a violation of this title.”
In light of the history of delays, failure to act, and admitted violations by Indian Peak, the
City Council did not continue the hearing and unanimously adopted Resoluti on No.
2018-61, revoking CUP No. 230 in its entirety and effective immediately (Attachment F).
The City Attorney’s Office issued a cease and desist letter on August 29, 2019, which
was ignored by Indian Peak. (Attachment G). Indian Peak did not accept the revocation
of CUP No. 230 and refuses to cease operation of commercial antennae on the Subject
Property in violation of the City’s Municipal Code.
Because Indian Peak continued to use the commercial antennae structure without an
approved conditional use permit, on November 5, 2018, the City filed a complaint
alleging the existence of a public nuisance and seeking abatement of the public
nuisance (“Nuisance Case”). On November 19, 2018, Indian Peak filed a separate
lawsuit against the City seeking damages and alleging that the City’s revocation of CUP
No. 230 was an abuse of discretion, in violation of Indian Peak due process rights, a
taking of Indian Peaks property rights, and an illegal interference in Indian Peaks
existing and potential business contracts. (“Writ Case”).
Throughout the pending court proceedings, Indian Peak continued to use, and regularly
performed maintenance work and modification s on the roof-mounted antenna structure.
On May 23, 2019, City Staff reported to the Subject Property in response to a complain t
regarding unpermitted installation of antennae, posted a Stop Work Order on the
Subject Property, and issued Administrative Citation No. 1528 to Indian Peak .
(Attachment H and I.) On May 24, 2019, in response to continued performance of work
on the unpermitted antenna structure, the City issued Administrative Citation No. 1529
to Indian Peak. (Attachment J.)
On August 9, 2019, the Court in the Writ Case denied Indian Peak’s abuse of discretion
and due process claims, and on October 11, 2019, Indian Peak dismissed its takings
and contract claims against the City. (Exhibit K.) The Court entered its Final Judgment
in the Nuisances Case on December 12, 2019, and Indian Peak has appealed the
Courts denial of its writ petition. However, Indian Peak has not requested or been
granted a stay by the Court of Appeals to overturn the City’s revocation of CUP No. 230.
On November 20, 2019, the Court in the Nuisance Case granted summary judgment in
favor of the City, finding a public nuisance exists on the Subject Property as a result of
Indian Peak’s actions. The Court entered its Final Judgment in the Nuisances Case on
December 5, 2019, and Indian Peak has not filed an appeal of such judgment
(Attachment L).
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Under RPVMC § 8.24.080, when the City has determined that an unlawful condition
constituting a public nuisance exists on a property, it may take action to abate such
public nuisance. The City shall give notice and order to abate the unlawful conditions
existing on the property and deliver, or send by certified mail, such notice to the owner,
agent of the owner, lessee, occupant, or person in possession of the premises. The
owner, or any other person interested in the property, may appeal to the city council as
to the requirements of such notice and order. Under RPVMC § 8.24.090, if after
receiving notice, the owner fails to take the action required by the notice, the City shall
take action to abate the public nuisance existing on the property.
On November 27, 2019, the City sent a Notice and Order to Abate a Public Nuisance to
Indian Peak demanding the abatement of the public nuisance via the removal of all roof-
mounted commercial antenna from the Subject Property, and posted the Notice on the
Subject Property (Attachments M and N). On December 6, 2019, Indian Peak filed a
Notice of Appeal with the City Clerk challenging the City’s Notice and Order, and
requesting that the City Council stay the abatement demanded by the Notice and Order
(Attachment O). City Staff has obtained a bid proposal for the abatement, in the event
that Indian Peak should fail to take the action required by the Notice and Order to Abate
a Public Nuisance (Attachment P).
In accordance with RPVMC 8.24.080(D), as a result of the Notice of Appeal, it is
necessary for the City Council to hear the appeal and objections of Indian Peak to the
Notice and Order to Abate a Public Nuisance, and determine by resolution whether th e
City shall proceed with the abatement in accordance with the notice as given, or as
modified by the City Council, or not at all.
CONCLUSION:
Staff recommends that the City Council deny the appeal, adopt the attached resolution
of denial, and direct City Staff to proceed with the abatement of the public nuisance
existing at the property located at 26708 Indian Peak Road in accordance with the
Notice and Order to Abate a Public Nuisance.
ALTERNATIVES:
However, if warranted, and in the sound discretion of the City Council, the City Council
could elect to grant the appeal, adopt the attached resolution granting the appeal as
described below, and direct City Staff not to proceed with the abatement of the public
nuisance pending resolution of appeal(s) in two underlying civil litigation matters:
Adopt Resolution No. 2019-___, A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF RANCHO PALOS VERDES GRANTING THE APPEAL OF THE
CITY’S NOTICE AND ORDER TO ABATE A PUBLIC NUISANCE AND
STAYING THE ABATEMENT OF THE PUBLIC NUISANCE EXISTING AT THE
PROPERTY LOCATED AT 26708 INDIAN PEAK ROAD.
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01203.0035/620919.1
RESOLUTION NO. 2019-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES DENYING THE APPEAL OF THE
CITY’S NOTICE AND ORDER TO ABATE A PUBLIC
NUISANCE AND ORDERING THE ABATEMENT OF THE
PUBLIC NUISANCE EXISTING AT THE PROPERTY
LOCATED AT 26708 INDIAN PEAK ROAD.
WHEREAS, Indian Peak Properties, LLC (“Indian Peak”) was authorized to use a
roof-mounted commercial antenna structure consisting of a maximum of five (5) vertical
antenna masts, each which was not to exceed eight and one-half (8 ½) feet in height, and
each with up to four (4) radiating elements affixed thereon, under Conditional Use Permit
No. 230 (“CUP No. 230”) as adopted by Resolution No. 2002-27, and amended by
Resolution Nos. 2004-109 and 2005-75;
WHEREAS, CUP No. 230 required approval by the City Council for any
enlargement, expansion or addition to the antenna structure as approved under the terms
of CUP No. 230;
WHEREAS, Indian Peak violated the conditions of approval for CUP No. 230 by its
use of at least eleven (11) roof -mounted vertical antenna masts without obtaining any prior
approval from the City;
WHEREAS, the City issued Notices of Violation on August 15, 2015, October 14,
2014, and October 28, 2014 regarding Indian Peak’s violation of the terms of CUP No. 230;
WHEREAS, the City required that Indian Peak either removal all of the unpermitted
antenna from the roof, and ensure that the remaining antennas meet the requirements as
described in CUP No. 230, or submit an application to the City to request a revision to CUP
No. 230 to allow the existing unpermitted antennas to remain;
WHEREAS, on October 28, 2016, Indian Peak submitted an application for Revision
of the Existing CUP No. 230 to the City for an after-the-fact approval of the unpermitted
roof-mounted vertical antenna masts;
WHEREAS, on November 23, 2016, the City determined that Indian Peak’s
application for Revision of the Existing CUP No. 230 was incomplete, and sent a letter t o
Indian Peak requesting additional required information for the processing of the application;
WHEREAS, Indian Peak has not submitted any additional information for its
application for Revision of the Existing CUP No. 230;
WHEREAS, Indian Peak continues to use at least eleven (11) roof-mounted vertical
antenna on the property, well over the five (5) City Council-approved under CUP No. 230;
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01203.0035/620919.1
WHEREAS, in accordance with RPVMC § 17.60.080, if any of the conditions of a
conditional use permit are violated, the conditional use permit shall be null and void, and
any continued use in violation of the conditional use permit shall constitute a violation of the
RPVMC, and thus a public nuisance pursuant to RPVMC § 1.08.010(D);
WHEREAS, on August 21, 2018, the City Council held a duly noticed public hearing
in which City Council unanimously voted to revoke CUP No. 230 for ongoing violation of the
terms of CUP No. 230 and the RPVMC;
WHEREAS, on August 29, 2018, the City Attorney’s Offi cer sent Indian Peak a
Cease and Desist letter demanding that all commercial antenna-related operations cease
and that all roof-mounted commercial antennae and antenna structures, be removed from
the property;
WHEREAS, on November 5, 2018, the City filed a complaint against Indian Peak in
the Los Angeles Superior Court, Case No. 18STCV03781, alleging the existence of a
public nuisance and seeking abatement of the public nuisance (Nuisance Case);
WHEREAS, on November 19, 2018, Indian Peak filed a separate lawsuit against the
City the Los Angeles Superior Court, Case No. 18STCP02913, seeking damages and a
writ of mandamus to overturn the City Council’s revocation of CUP No. 230 as an abuse of
discretion, a violation of Indian Peak due process rights, a taking of Indian Peaks property
rights, and an illegal interference in Indian Peaks existing and potential business contracts
(Writ Case);
WHEREAS, on May 23, 2019 the City issued a Stop Work Order and an
Administrative Citation to Indian Peak for work being performed on the unpermitted roof -
mounted antenna structure;
WHEREAS, on May 24, 2019, the City issued a second Administrative Citation to
Indian Peak for continuing to perform work on the unpermitted roof -mounted antenna
structure;
WHEREAS, on August 9, 2019, the Court in the Writ Case denied Indian Peaks
abuse of discretion and due process claims, and on October 11, 2019, Indian Peak
dismissed its takings and contract claims against the City, with the final judgment of the
Court entered on December 12, 2019;
WHEREAS, on November 20, 2019, the Court in the Nuisance Case granted
summary judgment in favor of the City, finding that a public nuisance exists on the Property
as a result of Indian Peaks actions, with the final judgment of the Court entered on
December 5, 2019;
WHEREAS, in accordance with RPVMC § 8.24.080, when the City has determined
that an unlawful condition constituting a public nuisance exists on a property, the City may
take action to abate such public nuisance;
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01203.0035/620919.1
WHEREAS, on November 27, 2019, the City sent a Notice and Order to Abate a
Public Nuisance to Indian Peak demanding the removal of all roof -mounted commercial
antenna from the Property, and posted the Notice and Order on the property;
WHEREAS, on December 6, 2019, Indian Peak sent a Notice of Appeal challenging
the City’s Notice and Order to Abate a Public Nuisance, and requesting that the City
Council stay the abatement demanded by the Notice and Order; and
WHEREAS, pursuant to RPVMC § 8.24.080(D), the City Council held an
administrative hearing on Indian Peaks Notice of Appeal, at which time all interested parties
were given an opportunity to be heard.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
Section 1: Having heard and considered the appeal and evidence presented at the
December 17, 2019 City Council meeting, the City Council makes the following findings:
A. The property located at 26708 Indian Peak Road, Rancho Palos V erdes,
California, (“Subject Property”) was the subject of Conditional Use Permit No. 230 (CUP
No. 230), as granted by the City Council in Resolution No. 2002-27, and amended by
Resolution Nos. 2004-109 and 2005-75.
B. The City Council’s revocation of CUP No. 230 in the duly-noticed public
hearing on August 21, 2018 for violation of the conditions of approval for CUP No. 230 was
valid, as confirmed by the Court in its August 9, 2019 ruling in Los Angeles Superior Court
Case No. 18STCP02913;
C. The continued use of the roof-mounted commercial antenna structure by
Indian Peak after the valid revocation of CUP No. 230 constitutes a violation of the City’s
Municipal Code, and as such, a public nuisance, as confirmed by the Court in its November
20, 2019 order in Los Angeles Superior Court Case No. 18STCV03781;
D. The City’s Notice and Order to Abate a Public Nuisance was properly
delivered to Indian peak, and Indian Peak’s Notice of Appeal of the Notice and Order was
properly and timely filed with the City Clerk.
Section 2: Based on the information included in the Staff report and the appeal of
the Notice and Order to Abate a Public Nuisance, the City Council of the City of Rancho
Palos Verdes hereby denies the appeal of the Notice and Order to Abate a Public
Nuisance, and orders Staff to proceed with abatement of the public nuisance existing on
the Subject Property in accordance with the Notice and Order to Abate a Public Nuisance
as given.
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01203.0035/620919.1
PASSED, APPROVED and ADOPTED this 17th day of December 2019.
____________________
John Cruikshank, Mayor
Attest:
___________________
Emily Colborn, City Clerk
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. 2019-___ was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on December 17, 2019.
____________________________
Emily Colborn, City Clerk
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01203.0035/620903.2
RESOLUTION NO. 2019-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES GRANTING THE APPEAL OF
THE CITY’S NOTICE AND ORDER TO ABATE A PUBLIC
NUISANCE AND STAYING THE ABATEMENT OF THE
PUBLIC NUISANCE EXISTING AT THE PROPERTY
LOCATED AT 26708 INDIAN PEAK ROAD.
WHEREAS, Indian Peak Properties, LLC (“Indian Peak”) was authorized to use a
roof-mounted commercial antenna structure consisting of a maximum of five (5) vertical
antenna masts, each which was not to exceed eight and one-half (8 ½) feet in height, and
each with up to four (4) radiating elements affixed thereon, under Conditional Use Permit
No. 230 (“CUP No. 230”) as adopted by Resolution No. 2002-27, and amended by
Resolution Nos. 2004-109 and 2005-75;
WHEREAS, CUP No. 230 required approval by the City Council for any
enlargement, expansion or addition to the antenna structure as approved under the terms
of CUP No. 230;
WHEREAS, Indian Peak violated the conditions of approval for CUP No. 230 by its
use of at least eleven (11) roof -mounted vertical antenna masts without obtaining any prior
approval from the City;
WHEREAS, the City issued Notices of Violation on August 15, 2015, October 14,
2014, and October 28, 2014 regarding Indian Peak’s violation of the terms of CUP No. 230;
WHEREAS, the City required that Indian Peak either removal all of the unpermitted
antenna from the roof, and ensure that the remaining antennas meet the r equirements as
described in CUP No. 230, or submit an application to the City to request a revision to CUP
No. 230 to allow the existing unpermitted antennas to remain;
WHEREAS, on October 28, 2016, Indian Peak submitted an application for Revision
of the Existing CUP No. 230 to the City for an after-the-fact approval of the unpermitted
roof-mounted vertical antenna masts;
WHEREAS, on November 23, 2016, the City determined that Indian Peak’s
application for Revision of the Existing CUP No. 230 was incomplete, and sent a letter to
Indian Peak requesting additional required information for the processing of the application;
WHEREAS, Indian Peak has not submitted any additional information for its
application for Revision of the Existing CUP No. 230;
WHEREAS, Indian Peak continues to use at least eleven (11) roof-mounted vertical
antenna on the property, well over the five (5) City Council-approved under CUP No. 230;
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01203.0035/620903.2
WHEREAS, in accordance with RPVMC § 17.60.080, if any of the conditions of a
conditional use permit are violated, the conditional use permit shall be null and void, and
any continued use in violation of the conditional use permit shall constitute a violation of the
RPVMC, and thus a public nuisance pursuant to RPVMC § 1.08.010(D);
WHEREAS, on August 21, 2018, the City Council held a duly noticed public hearing
in which City Council unanimously voted to revoke CUP No. 230 for ongoing violation of the
terms of CUP No. 230 and the RPVMC;
WHEREAS, on August 29, 2018, the City Attorney’s Officer sent Indian Peak a
Cease and Desist letter demanding that all commercial antenna-related operations cease
and that all roof-mounted commercial antennae and antenna structures, be removed from
the property;
WHEREAS, on November 5, 2018, the City filed a complaint against Indian Peak in
the Los Angeles Superior Court, Case No. 18STCV03781, alleging the existence of a
public nuisance and seeking abatement of the public nuisance (Nuisance Case);
WHEREAS, on November 19, 2018, Indian Peak filed a separate lawsuit against the
City the Los Angeles Superior Court, Case No. 18STCP02913, seeking damages and a
writ of mandamus to overturn the City Council’s revocation of CUP No. 230 as an abuse of
discretion, a violation of Indian Peak due process rights, a taking of Indian Peaks property
rights, and an illegal interference in Indian Peaks existing and potential business contracts
(Writ Case);
WHEREAS, on May 23, 2019 the City issued a Stop Work Order and an
Administrative Citation to Indian Peak for work being performed on the unpermitted roof -
mounted antenna structure;
WHEREAS, on May 24, 2019, the City issued a second Administrative Citation to
Indian Peak for continuing to perform work on the unpermitted roof -mounted antenna
structure;
WHEREAS, on August 9, 2019, the Court in the Writ Case denied Indian Peaks
abuse of discretion and due process claims, and on October 11, 2019, Indian Peak
dismissed its takings and contract claims against the City, with the final judgment of the
Court entered on December 12, 2019;
WHEREAS, on November 20, 2019, the Court in the Nuisance Case granted
summary judgment in favor of the City, finding that a public nuisance exists on the Property
as a result of Indian Peaks actions, with the final judgment of the Court entered on
December 5, 2019;
WHEREAS, in accordance with RPVMC § 8.24.080, when the City has determined
that an unlawful condition constituting a public nuisance exists on a property, the City may
take action to abate such public nuisance;
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01203.0035/620903.2
WHEREAS, on November 27, 2019, the City sent a Notice and Order to Abate a
Public Nuisance to Indian Peak demanding the removal of all roof-mounted commercial
antenna from the Property, and posted the Notice and Order on the property;
WHEREAS, on December 6, 2019, Indian Peak sent a Notice of Appeal challenging
the City’s Notice and Order to Abate a Public Nuisance, and requesting that the City
Council stay the abatement demanded by the Notice and Order; and
WHEREAS, pursuant to RPVMC § 8.24.080(D), the City Council held an
administrative hearing on Indian Peaks Notice of Appeal, at which time all interested parties
were given an opportunity to be heard.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
Section 1: Having heard and considered the appeal and evidence presented at the
December 17, 2019 City Council meeting, the City Council makes the following findings:
A. The property located at 26708 Indian Peak Road, Rancho Palos Verdes,
California, (“Subject Property”) was the subject of Conditional Use Permit No. 230 (CUP
No. 230), as granted by the City Council in Resolution No. 2002-27, and amended by
Resolution Nos. 2004-109 and 2005-75.
B. The City Council’s revocation of CUP No. 230 in the duly-noticed public
hearing on August 21, 2018 for violation of the conditions of approval for CUP No. 230 was
valid, as confirmed by the Court in its August 9, 2019 ruling in Los Angeles Superior Court
Case No. 18STCP02913;
C. The continued use of the roof-mounted commercial antenna structure by
Indian Peak after the valid revocation of CUP No. 230 constitutes a violation of the City’s
Municipal Code, and as such, a public nuisance, as confirmed by the Court in its November
20, 2019 order in Los Angeles Superior Court Case No. 18STCV03781;
D. The City’s Notice and Order to Abate a Public Nuisance was properly
delivered to Indian peak, and Indian Peak’s Notice of Appeal of the Notice and Order was
properly and timely filed with the City Clerk.
Section 2: Based on the information included in the Staff report and the appeal of
the Notice and Order to Abate a Public Nuisance, the City Council of the City of Rancho
Palos Verdes hereby grants the appeal of the Notice and Order to Abate a Public
Nuisance, and stays the abatement of the public nuisance existing on the Subject Property
without prejudice to City Staff issuing a new Notice and Order to Abate a Public Nuisance.
B-3
01203.0035/620903.2
PASSED, APPROVED and ADOPTED this 17th day of December 2019.
____________________
John Cruikshank, Mayor
Attest:
___________________
Emily Colborn, City Clerk
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. 2019-___ was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on December 17, 2019.
____________________________
Emily Colborn, City Clerk
B-4
C-1
RESOLUTION NO. 2005-75
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES
APPROVING REVISIONS TO CONDITION NO. 19 OF CONDITIONAL USE PERMIT
NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN 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.
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 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,
C-2
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 April16, 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 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-masted, roof-mounted antenna array,
which array 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 primary residence
[were] not reasonable," but also finding that all other conditions of approval imposed by
Resolution No. 2004-109 were reasonable; and,
Resolution No. 2005-75
Page 2 of9
C-3
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 July 5,
2005 to consider revised language for Condition No. 19 of 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:
Section 1: The City Council hereby makes the following findings of fact with
respect to the application for Conditional Use Permit No. 230 to legalize the use of existing
roof-mounted and interior antennae and related support structures and equipment on the
site for commercial purposes:
A. For the purposes of this determination on the subject application and throughout
this Resolution, the terms and phrases "existing antenna(e)" and "existing roof-
mounted antenna array" refer only to the antenna( e) and antenna array depicted in
the plans submitted to the City by the applicant on June 21, 2001, and in
photographs accompanying the application for Conditional Use Permit No. 230 and
Environmental Assessment No. 744. The terms and phrases "existing antenna( e)"
and "existing roof-mounted antenna array" do not include any parts, elements,
components or other features of the antenna( e) and antenna array that are not
depicted on the plan submitted on June 21, 2001, or in the above-mentioned
photographs, regardless whether these parts, elements, components or other
features were, or are, physically present on the subject property as of the effective
date of this Resolution.
B. The site is adequate in size and shape to accommodate the proposed use and for
all of the yards, setbacks, walls, fences, landscaping and other features required by
the Development Code or by conditions imposed to integrate said use with those on
adjacent land and within the neighborhood because, as conditioned, the proposed
project complies with the development standards for commercial antennae, as
specified in RPVDC Sections 17. 76.020(A)(2) through (A)( 1 0). The site provides for
at least two (2) off-street parking spaces for maintenance and service vehicles and
the existing roof-mounted antenna support structure and array does not require
special markings or lighting to comply with Federal Aviation Administration (FAA)
requirements. Although there is existing foliage on adjacent properties and rights-
of-way, this foliage does not adequately screen any antenna support structures or
antennae on the roof of the structure from view from many surrounding residences
in the neighborhood and from nearby public rights-of-way, especially those
residences located directly across the street and the residences located downslope
from the rear yard on Fond du Lac Road. As such, the approval of this application
is conditioned to require the removal of all but five (5) ofthe existing eight-and-one-
half-foot long masts and two of the television antennae from the roof of the
residence. With the removal of all but the five (5) vertical antenna masts that
existed on June 1, 2001 and were depicted on the project plans submitted to the
Resolution No. 2005-75
Page 3 of9
C-4
City on June 21, 2001, the aesthetic impacts of the antenna array will be no
different or more significant with its conversion to commercial use than they were for
amateur use only. This condition is necessary to maintain the appearance of the
structure as a single-family residence, and to integrate the commercial use into the
residential neighborhood. In this case, the imposition of stricter limitations upon
both commercial and non-commercial antennae than are otherwise required by the
City's Development Code is necessary to protect the aesthetics of the neighborhood
while still allowing reasonable use of the site to transmit on both amateur and
commercial frequencies, because the applicant's representatives have testified that
the antennae at the site can be "diplexed" so that each antenna can be used to
transmit on two different frequencies at the same time. By comparison, allowing the
applicant to use all of the antennae that were placed on the property in 2001 while
this application was pending before the Planning Commission will dramatically alter
the residential character of the home and create the appearance of a commercial
antenna farm, which will adversely affect the surrounding residential neighborhood.
C. The site for the proposed use relates to streets and highways sufficient to carry the
type and quantity of traffic generated by the subject use because the subject
property is served by Indian Peak Road, which is a public residential street. Aside
from normal residential traffic associated with the existing house, the only additional
traffic expected to result from the proposed project is an occasional service vehicle,
and would rarely involve large trucks or other equipment that could adversely affect
local traffic for any extended period of time. Any adverse effects of any additional
traffic are mitigated by the conditions of approval imposed by this approval.
D. In approving the subject use at the specific location, there will be no significant
adverse effects on adjacent property or the permitted use thereof, due to the
conditions that are being imposed as part of this approval. Although service
personnel would visit the site periodically, any impacts related to the maintenance
and operation of the existing antennae would be very minor and have no significant
adverse effects on surrounding properties. The existing antennae are visible from
homes across Indian Peak Road and from Fond du Lac Road below. With the
removal of all but the five (5) vertical antenna masts that existed on June 1, 2001
and were depicted on the project plans submitted to the City on June 21,2001, the
aesthetic impacts of the antenna array will be no different or more significant with its
conversion to commercial use than they were for amateur use only. However, the
approval of this proposal will be conditioned to require maintenance of the roof-
mounted antennae and support structures that are permitted by this conditional use
permit in a neutral color so as to blend better into the background sky and the gray
color of the existing antenna support structure. In addition, no future changes to the
location or configuration or which increase the number or the height of any
approved antennae or element of the remaining roof-mounted antenna array will be
permitted without an amendment to this conditional use permit that is approved by
the City Council, in order to prevent further visual intrusion upon the surrounding
neighborhood.
Resolution No. 2005-75
Page 4 of 9
C-5
E. Any issues related to interference impacts upon electronic and other types of
equipment, and actual or perceived effects upon human health, are strictly within
the purview of the FCC, since Telecommunications Act of 1996 prohibits the City
from "[regulating] the placement, construction, and modification of personal wireless
service facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the [FCC's] regulations
concerning such emissions."
F. The proposed five-mast antenna structure is contrary to the General Plan, but is
being approved by the City Council, due to the orders of the United States District
Court that were issued on July 14, 2004 and April 4, 2005. The subject property
and the Grandview neighborhood are designated Residential, 4-6 DU/acre, which is
a land use designation intended to accommodate medium-density neighborhoods of
detached, single-family homes and related accessory uses and structures. No
evidence has been provided that the owner has ever resided at the existing home,
and this property has not been occupied for at least the past six years. The
evidence demonstrated that, in the past, the property had not been maintained in a
manner consistent with the quality of the surrounding neighborhood prior to the
initial hearings before the Planning Commission in 2001, and the residential
character of the neighborhood was eroded by the increasing deterioration and
commercialization of this site. To prevent the proposed commercial use of the
property from exacerbating the substandard condition ofthe residence, the approval
of the proposed project includes conditions to address these past deficiencies. The
conditions include: 1) requiring landscape and maintenance services in the event
that the home not properly maintained in conformance with the conditions; 2)
requiring the removal of all but five (5) of the existing vertical antenna masts, which
are the most visible exterior evidence of the commercial use of the property; and 3)
requiring the house to be maintained in a manner suitable for occupancy as a
single-family residence. These conditions will allow for the provision of wireless
telecommunications services at this location, while minimizing the visual and
aesthetic impacts of this commercial wireless operation on the surrounding
residential neighborhood.
G. The required finding that, if the site of the proposed use is within any of the overlay
control districts established by RPVDC Chapter 17.40 (Overlay Control Districts),
the proposed use complies with all applicable requirements of that chapter, is not
applicable because the subject property is not located within any of the overlay
control districts established by RPVDC Chapter 17.40.
H. Conditions of approval, which the City Council finds to be necessary to protect the
health, safety and general welfare, have been imposed and include (but are not
limited to) removal of all but five (5) of the existing eight and one-half feet-long roof-
mounted antenna masts and two of the television antenna( e), and prohibiting any
further modifications to them without first obtaining approval of modification to this
conditional use permit; limiting regular maintenance hours to 8:00 AM to 5:00 PM,
Monday through Friday; requiring the property to be landscaped and painted and
Resolution No. 2005-75
Page 5 of9
C-6
that weekly landscape and general maintenance services shall be provided by
contract with a qualified provider of such services if the residence is not properly
maintained in accordance with the conditions; requiring the house to be maintained
in a manner suitable for occupancy as a single-family residence; requiring the
applicant to obtain and maintain a valid business license; and reviewing the project
for compliance with all conditions of approval within one hundred twenty (120) days
of the date of the City's final action on the application. These conditions are
imposed through the City's authority over placement, construction and modification
of personal wireless service facilities, as expressly reserved to local government
under the Telecommunications Act of 1996.
I. The required findings that no existing or planned tower can accommodate the
applicant's proposed antenna or proposed service area, or that the proposed tower
cannot be located on the site of an existing or planned tower, are not applicable
because the proposed project does not involve the construction or placement of a
new antenna tower, and there is no antenna tower currently located on the subject
property.
Section 2: The City Council finds that the proposed project-as conditioned-
qualifies for a Class 1 categorical exemption from the provisions of the California
Environmental Quality Act (CEQA) under Section 15301. The exemption applies to
alterations to existing minor structures and uses "involving negligible or no expansion of
use beyond that existing at the time of the lead agency's determination." As conditioned,
the existing roof-mounted antenna support structure and array would be modified so that
most of the antennae are removed or relocated to the inside of the house, and the negative
aesthetic impacts of the existing antennae are minimized. In addition, the property will be
required to be maintained in an appropriate manner that is consistent with City standards.
Without the imposition of these conditions, and if the antennae and other elements that
have been added to the property since the submittal of the application to the City were to
remain in place, the City Council would not be able to find this proposed project exempt
from the requirements of CEQA, due to aesthetic impacts which could be potentially
significant and thus would require further analysis pursuant to the requirements of CEQA.
Section 3: The City Council finds that the approval of Conditional Use Permit
No. 230-as conditioned-is consistent with the City's Wireless Communications Antenna
Development Guidelines. This application was heard by the Planning Commission within
the time lines established by the State's Permit Streamlining Act and CEQA (Guideline
No. 1 ). Although the Guidelines express a preference for existing, non-single-family
structures as antenna sites (Guideline No. 2), installations on single-family residences are
not prohibited and have been approved previously elsewhere in the City. In addition, the
conditions of approval for this project will help to enhance the residential character of the
neighborhood by requiring the applicant to upgrade the appearance and maintenance of
the property. As a condition of approval, most of the exterior antennae will be removed, so
the project will have no significant impact upon any view corridors (Guideline No. 4 ). The
removal of these antennae will also serve to balance the aesthetic impacts of the antennae
upon the neighborhood with the applicant's financial benefit from the operation of the
Resolution No. 2005-75
Page 6 of9
C-7
commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae
removed from the roof of the house, they will be more effectively screened from view from
adjacent properties or rights-of-way (Guideline No. 9).
Section 4: The City Council finds that the approval of Conditional Use Permit
No. 230-as conditioned-is consistent with the orders of the United States District Court
for the following reasons:
A. The conditional approval of Conditional Use Permit No. 230 "[does] not
unreasonably discriminate among providers of functionally equivalent services ... and
[does] not prohibit or have the effect of prohibiting the provision of personal wireless
services" (47 U.S.C. 332(c)(7), subsections (B)(i)(l) and (II)). In reviewing all of the
applications to provide personal wireless services on other residentially-zoned
property within the City, the City has applied consistently its regulations to these
facilities so as to approve facilities that are compatible with surrounding uses and to
modify or deny applications that do or will have adverse visual, aesthetic or other
impacts upon surrounding properties. The instant application is being approved
with conditions requiring the removal of most of the exterior antennae because it will
otherwise result in adverse visual and aesthetic impacts upon adjacent properties.
The City's conditional approval of this specific proposal does not prohibit the
applicant from providing wireless communications services because the applicant
still has the ability to provide these services from the remaining exterior antennae .
The applicant's representative has stated at a public hearing that the applicant has
the capability to "diplex" the antennae in order to utilize more frequencies. The
applicant has also admitted that he has transmitted commercially from the site since
1998, allegedly from antennae located inside the residence. The City has
previously approved applications for commercial antennae for a variety of
commercial wireless services and service providers, including applications for
properties that were zoned or used for single-family residential purposes.
Accordingly, the conditional approval of this particular application also does not
result in a ban or prohibition of, or have the effect of prohibiting, the placement of
these types of facilities within the City of Rancho Palos Verdes.
B. The application for Conditional Use Permit No. 230 was deemed complete by City
Staff on September 19, 2001. The City has acted on the applicant's request for
Conditional Use Permit No. 230 "within a reasonable period oftime after the request
[was] duly filed with [the City], taking into account the nature and scope of such
request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). This application has been
processed by the City in a timely fashion and in accordance with the time lines
established by the State Permit Streamlining Act and CEQA, and the
Telecommunications Act. The only delays in the processing of this application are
attributable to the applicant's request for a waiver of the penalty fee (which was
denied by the City Council on September 18, 2001 ); the applicant's request for a
continuance of this application from the Planning Commission meeting of October
23, 2001 to the meeting of November 13, 2001; the applicant's appeal of the
Planning Commission's conditional approval and request for continuance of the
Resolution No. 2005-75
Page 7 of9
C-8
appeal from the City Council meeting of February 19, 2002 to the meeting of March
19, 2002; and the applicant's request for continuance of the reconsideration of the
appeal from the City Council meeting of October 5, 2004, to the meetings of
November 16,2004 and then again to December 21, 2004.
C. In conditionally approving the application for Conditional Use Permit No. 230, the
City has not "[regulated] the placement, construction, and modification of personal
wireless service facilities on the basis of the environmental effects of radio
frequency emissions to the extent that such facilities comply with the [Federal
Communications] Commission's regulations concerning such emissions" (47 U.S.C.
332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions
were raised as issues of concern to surrounding residents at the public hearing and
in correspondence to the City, none of the required modifications to the existing
antennae on the site are in response to these concerns. Instead, these
modifications are imposed only to address the aesthetic impacts of the antennae
upon the surrounding neighborhood. City Staff advised the Planning Commission
and the City Council that neither body could consider any environmental effects of
emissions that comply with FCC regulations, including purported impacts upon
health or alleged interference with television reception. The Planning Commission
and City Council relied upon that advice and the provisions of the Act and,
therefore, has not based its decision to conditionally approve the proposed project
in any respect upon any actual or perceived environmental effects attributable to
radio frequency emissions. Rather, the conditional approval regulates the aesthetic
impacts and land use compatibility issues traditionally addressed through the
exercise of local governmental police powers.
D. The previous provisions of Condition No. 19 of Conditional Use Permit No. 230
requiring that Mr. Kay to occupy the property at 26708 Indian Peak Road as his
primary residence have been eliminated. However, language requiring the property
to be maintained in a condition suitable for such occupancy has been retained in the
revised condition. The City Council finds that the revised language of Condition
No. 19 will ensure that, notwithstanding the roof-mounted antenna array, the
property will be maintained so that it can be used as, and have the appearance of,
an occupied, single-family residence, which was the City Council's original intent in
adopting Condition No. 19.
Section 5: The City Council is approving the commercial use of the pre-existing
five-masted roof-mounted antennae array to comply with the orders of the United States
District Court issued on July 14, 2004, and April4, 2005, in the case of Kay v. Rancho
Palos Verdes. If either or both of these orders are reversed, the City Council hereby
reserves the right to vacate this decision and resolution and reinstate its prior decision or,
in the alternative, to re-open the public hearing.
Section 6: Modifications to the conditions of approval entitle the applicant/appel-
lant to a refund of one-half of the appeal fee, pursuant to Rancho Palos Verdes
Development Code Section 17.80.120.
Resolution No. 2005-75
Page 8 of9
C-9
Section 7: The time within which the judicial review of the decision reflected in
this Resolution, if available, must be sought is governed by Section 1 094.6 of the California
Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the
Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely
affected by the City's final action in this matter may, within thirty (30) days after such
action, commence an action in any court of competent jurisdiction.
Section 8: For the foregoing reasons and based on the information and findings
included in the Staff Report, the testimony and evidence presented at the public hearings
before the Planning Commission and the City Council, 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 approves Conditional Use Permit No. 230, thereby approving revisions to Condition
No. 19 of Conditional Use Permit No. 230, thereby approving the commercial use of certain
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, subject to the
conditions contained in Exhibit 'A', attached hereto and made a part hereof by this
reference, which are necessary to protect the public health, safety and welfare.
PASSED, APPROVED, AND ADOPTED this 5th day of July 2005.
Attest:
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2005-75 was duly and regularly passed and adopted by the said City
Council at a regular meeting thereof held on July 5, 2005.
Resolution No. 2005-75
Page 9 of9
C-10
RESOLUTION NO. 2005-75 -EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 230
(26708 Indian Peak Road)
The following condition of approval from Resolution No. 2002-27 and Resolution
No. 2004-109 is hereby revised to read as follows:
19. Within ninety (90) days of the date of the City's final action on this
application, the applicant shall complete the necessary improvements to
make the house habitable, including a functional kitchen, toilet and bathing
facilities, heating, and utility connections for gas, electricity, water and
sewer, which shall be maintained continuously, regardless of whether or
not the house is actually occupied. The applicant shall arrange for the
provision of weekly landscape and maintenance service at the property to
ensure that the structure and grounds are maintained free from litter,
debris, and overgrown vegetation in compliance with the City's Municipal
Code so as not to become an eyesore.
Except as expressly modified herein, all of the prior recitals, findings of fact,
conclusions of law and conditions of approval from Resolution No. 2002-27, as
originally adopted by the Rancho Palos Verdes City Council on April 16, 2002,
and Resolution No. 2004-109, as originally adopted by the Rancho Palos Verdes
City Council on December 21, 2004, remain unchanged.
Resolution No. 2005-75
Exhibit A
Page 1 of 1
D-1
RESOLUTION NO. 2004-109
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY
APPROVING THE COMMERCIAL USE OF CERTAIN 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.
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 21 000 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. 7 44 would 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,
D-2
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 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-masted, roof-mounted antenna array, which array 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, after notice issued pursuant to the requirements of the Rancho Palos Verdes
Development Code, the City Council held a duly-noticed public hearing on October 5, 2004,
November 16, 2004, and December 21, 2004, to reconsider 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:
Section 1: The City Council hereby makes the following findings of fact with respect to
the application for Conditional Use Permit No. 230 to legalize the use of existing roof-mounted and
interior antennae and related support structures and equipment on the site for commercial purposes:
A. For the purposes of this determination on the subject application and throughout this
Resolution, the terms and phrases "existing antenna( e)" and "existing roof-mounted antenna
array" refer only to the antenna(e) and antenna array depicted in the plans submitted to the
City by the applicant on June 21, 2001, and in photographs accompanying the application for
Conditional Use Permit No. 230 and Environmental Assessment No. 7 44. The terms and
phrases "existing antenna( e)" and "existing roof-mounted antenna array" do not include any
parts, elements, components or other features of the antenna(e) and antenna array that are
not depicted on the plan submitted on June 21, 2001, or in the above-mentioned
photographs, regardless whether these parts, elements, components or other features were,
or are, physically present on the subject property as of the effective date of this Resolution.
B. The site is adequate in size and shape to accommodate the proposed use and for all ofthe
yards, setbacks, walls, fences, landscaping and other features required by the Development
Code or by conditions imposed to integrate said use with those on adjacent land and within
the neighborhood because, as conditioned, the proposed project complies with the
Resolution No. 2004-109
Page 2 of 7
D-3
development standards for commercial antennae, as specified in RPVDC Sections
17. 76.020(A)(2) through (A)(1 0). The site provides for at least two (2) off-street parking
spaces for maintenance and service vehicles and the existing roof-mounted antenna support
structure and array does not require special markings or lighting to comply with Federal
Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent
properties and rights-of-way, this foliage does not adequately screen any antenna support
structures or antennae on the roof of the structure from view from many surrounding
residences in the neighborhood and from nearby public rights-of-way, especially those
residences located directly across the street and the residences located downslope from the
rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to
require the removal of all but five (5) of the existing eight-and-one-half-foot long masts and
two of the television antennae from the roof of the residence. With the removal of all but the
five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project
plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna array will
be no different or more significant with its conversion to commercial use than they were for
amateur use only. This condition is necessary to maintain the appearance of the structure
as a single-family residence, and to integrate the commercial use into the residential
neighborhood. In this case, the imposition of stricter limitations upon both commercial and
non-commercial antennae than are otherwise required by the City's Development Code is
necessary to protect the aesthetics of the neighborhood while still allowing reasonable use
of the site to transmit on both amateur and commercial frequencies, because the applicant's
representatives have testified that the antennae at the site can be "diplexed" so that each
antenna can be used to transmit on two different frequencies at the same time. By
comparison, allowing the applicant to use all of the antennae that were placed on the
property in 2001 while this application was pending before the Planning Commission will
dramatically alter the residential character of the home and create the appearance of a
commercial antenna farm, which will adversely affect the surrounding residential
neighborhood.
C. The site for the proposed use relates to streets and highways sufficient to carry the type and
quantity of traffic generated by the subject use because the subject property is served by
Indian Peak Road, which is a public residential street. Aside from normal residential traffic
associated with the existing house, the only additional traffic expected to result from the
proposed project is an occasional service vehicle, and would rarely involve large trucks or
other equipment that could adversely affect local traffic for any extended period of time. Any
adverse effects of any additional traffic are mitigated by the conditions of approval imposed
by this approval.
D. In approving the subject use at the specific location, there will be no significant adverse
effects on adjacent property or the permitted use thereof, due to the conditions that are
being imposed as part of this approval. Although service personnel would visit the site
periodically, any impacts related to the maintenance and operation of the existing antennae
would be very minor and have no significant adverse effects on surrounding properties. The
existing antennae are visible from homes across Indian Peak Road and from Fond du Lac
Road below. With the removal of all but the five (5) vertical antenna masts that existed on
June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001,
the aesthetic impacts of the antenna array will be no different or more significant with its
conversion to commercial use than they were for amateur use only. However, the approval
of this proposal will be conditioned to require maintenance of the roof-mounted antennae
and support structures that are permitted by this conditional use permit in a neutral color so
as to blend better into the background sky and the gray color of the existing antenna support
Resolution No. 2004-109
Page 3 of?
D-4
structure. In addition, no future changes to the location or configuration or which increase
the number or the height of any approved antennae or element of the remaining roof-
mounted antenna array will be permitted without an amendment to this conditional use
permit that is approved by the City Council, in order to prevent further visual intrusion upon
the surrounding neighborhood.
E. Any issues related to interference impacts upon electronic and other types of equipment,
and actual or perceived effects upon human health, are strictly within the purview of the
FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] the
placement, construction, and modification of personal wireless service facilities on the basis
of the environmental effects of radio frequency emissions to the extent that such facilities
comply with the [FCC's] regulations concerning such emissions."
F. The proposed five-mast antenna structure is contrary to the General Plan, but is being
approved by the City Council, due to the order of the United States District Court that was
issued on July 14, 2004. The subject property and the Grandview neighborhood are
designated Residential, 4-6 DU/acre, which is a land use designation intended to
accommodate medium-density neighborhoods of detached, single-family homes and related
accessory uses and structures. No evidence has been provided that the owner has ever
resided at the existing home, and this property has not been occupied for at least the past
six years. The evidence demonstrated that, in the past, the property had not been
maintained in a manner consistent with the quality of the surrounding neighborhood prior'to
the initial hearings before the Planning Commission in 2001, and the residential character of
the neighborhood was eroded by the increasing deterioration and commercialization of this
site. To prevent the proposed commercial use of the property from exacerbating the
substandard condition of the residence, the approval of the proposed project includes
conditions to address these past deficiencies. The conditions include: 1) requiring
landscape and maintenance services in the event that the home not properly maintained in
conformance with the conditions; 2) requiring the removal of all but five (5) of the existing
vertical antenna masts, which are the most visible exterior evidence of the commercial use
ofthe property; and 3) requiring the house to be occupied and maintained in an appropriate
manner. These conditions will allow for the provision of wireless telecommunications
services at this location, while minimizing the visual and aesthetic impacts of this commercial
wireless operation on the surrounding residential neighborhood.
G. The required finding that, if the site of the proposed use is within any of the overlay control
districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use
complies with all applicable requirements of that chapter, is not applicable because the
subject property is not located within any of the overlay control districts established by
RPVDC Chapter 17 .40.
H. Conditions of approval, which the City Council finds to be necessary to protect the health,
safety and general welfare, have been imposed and include (but are not limited to) removal
of all but five (5) of the existing eight and one-half feet-long roof-mounted antenna masts
and two of the television antenna(e), and prohibiting any further modifications to them
without first obtaining approval of modification to this conditional use permit; limiting regular
maintenance hours to 8:00AM to 5:00 PM, Monday through Friday; requiring the property to
be landscaped and painted and that weekly landscape and general maintenance services
shall be provided by contract with a qualified provider of such services if the residence is not
properly maintained in accordance with the conditions; requiring the house to be occupied;
requiring the applicant to obtain and maintain a valid business license; and reviewing the
Resolution No. 2004-109
Page 4 of 7
D-5
project for compliance with all conditions of approval within one hundred twenty (120) days
of the date of the City's final action on the application. These conditions are imposed through
the City's authority over placement, construction and modification of personal wireless
service facilities, as expressly reserved to local government under the Telecommunications
Act of 1996.
I. The required findings that no existing or planned tower can accommodate the applicant's
proposed antenna or proposed service area, or that the proposed tower cannot be located
on the site of an existing or planned tower, are not applicable because the proposed project
does not involve the construction or placement of a new antenna tower, and there is no
antenna tower currently located on the subject property.
Section 2: The City Council finds that the proposed project-as conditioned-qualifies
for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act
(CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and
uses "involving negligible or no expansion of use beyond that existing at the time of the lead
agency's determination." As conditioned, the existing roof-mounted antenna support structure and
array would be modified so that most of the antennae are removed or relocated to the inside of the
house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the
property will be required to be occupied and maintained in an appropriate manner that is consistent
with City standards. Without the imposition of these conditions, and if the antennae and other
elements that have been added to the property since the submittal of the application to the City were
to remain in place, the City Council would not be able to find this proposed project exempt from the
requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus
would require further analysis pursuant to the requirements of CEQA.
Section 3: The City Council finds that the approval of Conditional Use Permit No. 230-
as conditioned-is consistent with the City's Wireless Communications Antenna Development
Guidelines. This application was heard by the Planning Commission within the time lines
established by the State's Permit Streamlining Act and CEQA (Guideline No. 1 ). Although the
Guidelines express a preference for existing, non-single-family structures as antenna sites
(Guideline No. 2), installations on single-family residences are not prohibited and have been
approved previously elsewhere in the City. In addition, the conditions of approval for this project will
help to enhance the residential character of the neighborhood by requiring the applicant to upgrade
the appearance and maintenance of the property. As a condition of approval, most of the exterior
antennae will be removed, so the project will have no significant impact upon any view corridors
(Guideline No.4). The removal of these antennae will also serve to balance the aesthetic impacts
of the antennae upon the neighborhood with the applicant's financial benefit from the operation of
the commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed
from the roof of the house, they will be more effectively screened from view from adjacent properties
or rights-of-way (Guideline No. 9).
Section 4: The City Council finds that the approval of Conditional Use Permit No. 230-
as conditioned-is consistent with the order of the United States District Court for the following
reasons:
A. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably
discriminate among providers of functionally equivalent services ... and [does] not prohibit or
have the effect of prohibiting the provision of personal wireless services" (47 U.S.C.
332(c)(7), subsections (B)(i)(l) and (II)). In reviewing all of the applications to provide
personal wireless services on other residentially-zoned property within the City, the City has
applied consistently its regulations to these facilities so as to approve facilities that are
Resolution No. 2004-1 09
Page 5 of 7
D-6
compatible with surrounding uses and to modify or deny applications that do or will have
adverse visual, aesthetic or other impacts upon surrounding properties. The instant
application is being approved with conditions requiring the removal of most of the exterior
antennae because it will otherwise result in adverse visual and aesthetic impacts upon
adjacent properties. The City's conditional approval of this specific proposal does not
prohibit the applicant from providing wireless communications services because the
applicant still has the ability to provide these services from the remaining exterior antennae .
The applicant's representative has stated at a public hearing that the applicant has the
capability to "diplex" the antennae in order to utilize more frequencies. The applicant has
also admitted that he has transmitted commercially from the site since 1998, allegedly from
antennae located inside the residence. The City has previously approved applications for
commercial antennae for a variety of commercial wireless services and service providers,
including applications for properties that were zoned or used for single-family residential
purposes. Accordingly, the conditional approval of this particular application also does not
result in a ban or prohibition of, or have the effect of prohibiting, the placement of these
types of facilities within the City of Rancho Palos Verdes.
B. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on
September 19, 2001. The City has acted on the applicant's request for Conditional Use
Permit No. 230 "within a reasonable period of time after the request [was] duly filed with [the
City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7),
subsection (B)(ii)). This application has been processed by the City in a timely fashion and
in accordance with the time lines established by the State Permit Streamlining Act and
CEQA, and the Telecommunications Act. The only delays in the processing of this
application are attributable to the applicant's request for a waiver of the penalty fee (which
was denied by the City Council on September 18, 2001 ); the applicant's request for a
continuance of this application from the Planning Commission meeting of October 23, 2001
to the meeting of November 13, 2001; the applicant's appeal of the Planning Commission's
conditional approval and request for continuance of the appeal from the City Council
meeting of February 19, 2002 to the meeting of March 19, 2002; and the applicant's request
for continuance of the reconsideration of the appeal from the City Council meeting of
October 5, 2004, to the meetings of November 16, 2004 and then again to December 21,
2004.
C. In conditionally approving the application for Conditional Use Permit No. 230, the City has
not "[regulated] the placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency emissions to the extent
that such facilities comply with the [Federal Communications] Commission's regulations
concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference
and radio frequency emissions were raised as issues of concern to surrounding residents at
the public hearing and in correspondence to the City, none of the required modifications to
the existing antennae on the site are in response to these concerns. Instead, these
modifications are imposed only to address the aesthetic impacts of the antennae upon the
surrounding neighborhood. City Staff advised the Planning Commission and the City
Council that neither body could consider any environmental effects of emissions that comply
with FCC regulations, including purported impacts upon health or alleged interference with
television reception. The Planning Commission and City Council relied upon that advice and
the provisions of the Act and, therefore, has not based its decision to conditionally approve
the proposed project in any respect upon any actual or perceived environmental effects
attributable to radio frequency emissions. Rather, the conditional approval regulates the
Resolution No. 2004-109
Page 6 of 7
D-7
aesthetic impacts and land use compatibility issues traditionally addressed through the
exercise of local governmental police powers.
Section 5: The City Council is approving the commercial use of the pre-existing five-
masted roof-mounted antennae array to comply with the order of the United States District Court
issued on July 14, 2004, in the case of Kay v. Rancho Palos Verdes. If that order is reversed, the
City Council hereby reserves the right to vacate this decision and resolution and reinstate its prior
decision or, in the alternative, to re-open the public hearing.
Section 6: Modifications to the conditions of approval entitle the applicant/appellant to a
refund of one-half of the appeal fee, pursuant to Rancho Palos Verdes Development Code
Section 17.80.120.
Section 7: The time within which the judicial review of the decision reflected in this
Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil
Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act
of 1996 (47 U.S.C. 332(c)(7)(8)(v)), any person adversely affected by the City's final action in this
matter may, within thirty (30) days after such action, commence an action in any court of competent
jurisdiction.
Section 8: For the foregoing reasons and based on the information and findings included
in the Staff Report, the testimony and evidence presented at the public hearings before the Planning
Commission and the City Council, 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 approves Conditional Use
Permit No. 230, thereby approving the commercial use of certain 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, subject to the conditions contained in Exhibit 'A', attached
hereto and made a part hereof by this reference, which are necessary to protect the public health,
safety and welfare.
PASSED, APPROVED, AND ADOPTED this 21st day of December 2004.
Attest:
~(p;-
)
Ci lerk
State of California )
County 9f Los Angeles ) ss
City of Rancho Palos Verdes )
I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above
Resolution No. 2004-1 09 was duly and regularly passed and adoptad by the said City Council at a
regular meeting thereof held on December 21, 2004.
Resolution No. 2004-109
Page 7 of?
D-8
RESOLUTION NO. 2004-109 -EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 230
(26708 Indian Peak Road)
The following conditions of approval from Resolution No. 2002-27 are hereby revised to
read as follows:
2. This approval is for the use of antennae and related support structures and
equipment on the site of a single-family residence in the Grandview community
for commercial purposes. The commercial use of the property is conditioned
upon the following modifications:
a. The roof-mounted equipment shall consist of the existing roof-mounted
antenna support structured and a maximum of five (5) vertical masts, each of
which shall not exceed eight and one-half (8%) feet in height, as measured
from the point where the mast meets the roof surface.
b. Each of the five masts may have up to four (4) radiating elements affixed
thereon, similar to those that currently are present at the site, provided that
they do not extend any higher than the mast itself and that each antenna or
radiating element does not project more than two feet horizontally from the
center of the mast.
c. In addition, two (2) television antennae also may remain on the roof of the
residence, so long as they do not exceed eight and one-half (8%) feet in
height, as measured from the point where they are attached to the roof
surface; that the horizontal boom of each antenna does not exceed six feet in
length; that no radiating element or antenna attached to the boom exceeds
two feet in length, and that all of the antennae and support structures on the
property are maintained in compliance with the Municipal Code.
d. The Director of Planning, Building and Code Enforcement shall review the
exterior masts and antennae to ensure compliance with this condition. Any
additional exterior antennae, masts or other antenna support structure(s) shall
require further approval or modification of this conditional use permit.
e. The exterior masts and antennae described in this condition may be used for
either commercial or non-commercial purposes.
The Director of Planning, Building and Code Enforcement is authorized to make
only minor modifications to the approved plans and any of the conditions of
approval, and only if such modifications will achieve substantially the same
results as would strict compliance with the approved plans and conditions.
Otherwise, any substantive change, such as the enlargement, expansion or
Resolution No. 2004-109
Exhibit A
Page 1 of 3
D-9
addition to, the exterior masts and antennae that this approval allows outside of
the existing 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.
7. The applicant shall submit a plan depicting the five (5) roof-mounted masts that
are to be retained pursuant to this approval, within (90) ninety days of the date of
the City's final action on this application. The applicant shall obtain a building
permit and any other approval required by the Building Code to modify or
construct the masts and attached antennae on the property.
9. At all times, the applicant shall maintain the color of the entirety of the roof-
mounted antenna support structure and all of the antennae and radiating
elements located thereon, in a neutral color, such as gray, gray-green or gray-
blue, that will blend with the background foliage and the sky, to the satisfaction of
the Director. At the Director's discretion, all or any portion of the antenna array
may be left unpainted if, in its unpainted state, it conforms to the intent of this
condition and substantially matches the existing gray color of the antenna
support structure. However, the Director reserves the right to require the
applicant to paint all or portions of the antenna support structure and array at any
time that the Director finds that additional painting of some elements of the
antenna support structure and array is necessary to further reduce the aesthetic
impacts of the roof-mounted antenna support structure and the radiating
elements and antennae located thereon. If the Director of Planning, Building and
Code Enforcement requires the applicant to paint any portion of the antenna
support structure or antennae located thereon to comply with this condition, the
applicant shall provide the Director of Planning, Building and Code Enforcement
with a selection of possible colors for approval prior to the painting of any portion
of the antenna support structure and array.
10. The five roof-mounted masts and the two television antennae approved by this
resolution shall not be increased or expanded without the advance approval of
the City Council, including, but not limited to, any additional antennae, masts,
antennae support structures, antenna assemblies or radiating elements of any
kind. Existing masts and antennae that are permitted by this approval may be
removed and replaced for maintenance and/or repair as long as the replacement
masts or antennae are the same or less in height, length and mass and in the
same location as the approved masts and antennae, and provided that the total
number of masts and antennae is not increased.
16. No lights may be placed upon the roof-mounted antenna support structure, nor
may it be otherwise illuminated in any manner. In the event that the applicant is
required by the Federal Aviation Administration (FAA) to illuminate any portion of
the roof-mounted antenna support structure in order to comply with the
provisions of 14 CFR Part 77 or any other applicable state or federal regulations
regarding obstruction marking and lighting, the applicant may seek a modification
Resolution No. 2004-109
Exhibit A
Page 2 of 3
D-10
of this provision from the Director of Planning, Building and Code Enforcement.
This condition shall not restrict the use of hand-held lighting, nor the use of
temporary lighting during the performance of emergency repairs.
19. Within ninety (90) days of the date of the City's final action on this application, the
property shall be occupied by the owner, or some other person chosen by the
owner, as that person's primary residence. The necessary improvements to
make the house habitable shall be completed within the initial 90-day period-
including a functional kitchen, toilet and bathing facilities and utility connections
for gas, electricity, water and sewer-and shall be maintained continuously. The
applicant shall arrange for the provision of weekly landscape and maintenance
service at the property to ensure that the structure and grounds are maintained
free from litter, debris, and overgrown vegetation so as not to become an
eyesore, if the resident is not maintaining the property as required by these
conditions of approval and by the City's Municipal Code.
22. At approximately one hundred twenty (120) calendar days from the date of the
City's final action on this application, the City Council shall review the project for
conformance with the conditions of approval, and determine if any conditions of
approval need to be added, deleted or modified, or if the permit should be
revoked. Within the initial 120-day permit period, the applicant shall be
responsible for completing all of the site and use modifications described in this
Resolution. Failure to fulfill these conditions may lead to the revocation of this
permit during the 120-day review process by the City Council.
25. Within thirty (30) days of the date of this approval, and annually thereafter, the
applicant shall provide to the City a listing of all radio facilities or frequencies that
are licensed by the FCC to this site. In addition, within thirty (30) days of this
approval, and annually thereafter, the applicant also shall provide to the City
documentation demonstrating that the site is being operated in accordance with
FCC emission requirements and limits, considering all facilities that are licensed
by the FCC to operate at the site or that use the site pursuant to an amateur
radio operator's license. The listing of all radio facilities or frequencies licensed
by the FCC to the site will not become part of the public record, to the extent
allowed by state law. If the City receives a demand to view this information, the
City will timely notify the applicant so as to provide an opportunity for the
applicant to object to the demand.
Except as expressly modified herein, all of the prior recitals, findings of fact, conclusions
of law and conditions of approval from Resolution No. 2002-27, as originally adopted by
the Rancho Palos Verdes City Council on April16, 2002, remain unchanged.
Resolution No. 2004-1 09
Exhibit A
Page 3 of3
E-1
RESOLUTION NO. 2002-27
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES APPROVING CONDITIONAL
USE PERMIT NO. 230, THEREBY APPROVING THE
COMMERCIAL USE OF CERTAIN 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
WHEREAS, on October 22, 1998, the applicant, James A. Kay, Jr., received
approval of an application for Site Plan Review No. 8334 for after-the fact approval of an
existing roof-mounted antenna support structure and array for non-commercial radio
communications, which was conditioned expressly to exclude commercial operations; and,
WHEREAS, on November 4, 1998, prior to the expiration of the 15-day appeal
period for Site Plan Review No. 8334, the City Council adopted Urgency Ordinance
No. 341 U, which established a moratorium on the processing of all antenna applications,
including those applications upon which the City had acted but for which the appeal period
had not yet expired; and,
WHEREAS, on April 16, 1999, the antenna moratorium was lifted, the City's
approval of Site Plan Review No. 8334 was voided, and the existing roof-mounted antenna
support structure and array were determined by Staff to be exempt from City permits for
non-commercial use pursuant to Section 17.76.020(C)(3)(c)(ii) of the Rancho Palos Verdes
Development Code; and,
WHEREAS, on October 15, 1999, Mr. Kay submitted an application for Site Plan
Review No. 8736 to the Department of Planning, Building and Code Enforcement for a
198-square-foot single-story storage room addition to the rear side of the house, which
proposed a large number of electrical outlets, the installation of two dedicated air
conditioning condensers for the room and no interior access to the rest of the house; and
although Staff suspected that the addition was intended to house commercial radio
transmitters, the City did not withhold approval of Site Plan Review No. 8736 based upon
these suspicions; and,
WHEREAS, Staff subsequently reviewed Federal Communications Commission
(FCC) licensing records and found that several active and pending commercial radio
frequencies were licensed to Mr. Kay's property on Indian Peak Road, and turned this FCC
licensing information over to the City Attorney's office; and,
WHEREAS, the City obtained warrants from the court and retained an expert in the
field of radio transmissions, Dr. Henry Richter, to monitor transmissions from the site in
connection with an investigation of the alleged commercial use of the existing antennae
E-2
and found that commercial frequencies were in use at the site. Subsequently, on April13,
2000, the City filed a complaint for preliminary and permanent injunction against Mr. Kay to
prevent the non-permitted use of commercial antennae on the site, and this case currently
is pending; and,
WHEREAS, Section 17.76.020(A) ofthe Rancho Palos Verdes Development Code
requires an individual to obtain a conditional use permit to install or operate a commercial
antenna within the City of Rancho Palos Verdes. Section 17.96.090 of the Rancho Palos
Verdes Development Code further defines the term "commercial antenna" as follows:
"'Commercial Antenna' means all antennas, parabolic dishes, relay towers
and antenna support structures used for the transmission or reception of
radio, television and communication signals for commercial purposes. For
the purpose of this definition, 'commercial purposes' shall mean
communications for hire or material compensation, or the use of commercial
frequencies, as these terms are defined by the Federal Communications
Commission (FCC). 'Commercial antennas' shall not include antennas
owned or operated by governmental agencies; and micro-cell cellular
antennas, owned and operated by state licensed cellular telephone utility
companies, located on existing utility poles within the public right-of-way."
Under these provisions of the Rancho Palos Verdes Development Code, the
applicant, Mr. Kay, was required to obtain a conditional use permit from the City to use his
existing antennae and antenna support structure to broadcast on frequencies, deemed
commercial by the FCC; and,
WHEREAS, on June 21, 2001, Mr. Kay submitted applications for Conditional Use
Permit No. 230 and Environmental Assessment No. 744 for after-the-fact approval to
establish the existing antennae and related support structures and equipment on the site
for commercial use, although Mr. Kay contested that the application was after-the-fact and
requested a waiver of the penalty fee; and,
WHEREAS, on September 4, 2001 and September 18, 2001, the City Council
considered Mr. Kay's request for a waiver of the penalty fee for Conditional Use Permit
No. 230, and denied the request based upon inability to make the fee waiver findings set
forth in Section 17.78.010(8) of the Rancho Palos Verdes Development Code; 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,
Resolution No. 2002-27
Page 2 of 17
E-3
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. 7 44 would 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 eleven (11) 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 applicant's representative, Mr. Miner, testified that all of the
antennae that currently are located at the subject property could be used either for
commercial or non-commercial transmissions; and,
WHEREAS, the applicant's representative, Mr. Schmitz, during the public hearing,
stated that the applicant would be willing to comply with conditions that would improve the
appearance of the property, such as painting the residence and planting landscaping, and
having someone live at the residence, to ensure that the residence is in keeping with the
residential character of the neighborhood and to establish the proposed commercial use as
being clearly ancillary to the principal residential use of the property, so that the
Commission could make a finding of consistency of the proposed commercial use with the
City's General Plan; and,
WHEREAS, the Planning Commission, on November 15, 2001, adopted
P.C. Resolution No. 2001-43 conditionally approving the project; and,
WHEREAS, the Applicant 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 .... "
Resolution No. 2002-27
Page 3 of 17
E-4
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
Section 1: The City Council hereby makes the following findings of fact with
respect to the application for Conditional Use Permit No. 230 to legalize the use of existing
roof-mounted and interior antennae and related support structures and equipment on the
site for commercial purposes:
A. For the purposes of this determination on the subject application and throughout
this Resolution, the terms and phrases "existing antenna(e)" and "existing roof-
mounted antenna array" refer only to the antenna( e) and antenna array depicted in
the plans submitted to the City by the applicant on June 21, 2001, and in
photographs accompanying the application for Conditional Use Permit No. 230 and
Environmental Assessment No. 744. The terms and phrases "existing antenna( e)"
and "existing roof-mounted antenna array" do not include any parts, elements,
components or other features of the antenna( e) and antenna array that are not
depicted on the plan submitted on June 21, 2001, or in the above-mentioned
photographs, regardless whether these parts, elements, components or other
features were, or are, physically present on the subject property as of the effective
date of this Resolution.
B. The site is adequate in size and shape to accommodate the proposed use and for
all of the yards, setbacks, walls, fences, landscaping and other features required by
the Development Code or by conditions imposed to integrate said use with those on
adjacent land and within the neighborhood because, as conditioned, the proposed
project complies with the development standards for commercial antennae, as
specified in RPVDC Sections 17.76.020(A)(2) through (A)(10). The site provides for
two (2) off-street parking spaces for maintenance and service vehicles and the
existing roof-mounted antenna support structure and array does not require special
markings or lighting to comply with Federal Aviation Administration (FAA)
requirements. Although there is existing foliage on adjacent properties and rights-
of-way, this foliage does not adequately screen any antenna support structures or
antennae on the roof of the structure from view from many surrounding residences
in the neighborhood and from nearby public rights-of-way, especially those
residences located directly across the street and the residences located down slope
from the rear yard on Fond du Lac Road. As such, the approval of this application
is conditioned to require the removal of all but two (2) of the existing eight-and-one-
half-foot long masts and two of the television antennae from the roof of the
residence. This condition is necessary to maintain the appearance of the structure
as a single-family residence, and to integrate the commercial use into the residential
neighborhood. In this case, the imposition of stricter limitations upon both
commercial and non-commercial antennae than are otherwise required by the City's
Resolution No. 2002-27
Page 4 of 17
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Development Code is necessary to protect the aesthetics ofthe neighborhood while
still allowing reasonable use of the site to transmit on both amateur and commercial
frequencies, because the applicant's representatives have testified that the
antennae at the site can be "diplexed" so that each antenna can be used to transmit
on two different frequencies at the same time. On the other hand, allowing the
applicant to use all of the antennae that were placed on the property while this
application was pending will dramatically alter the residential character of the home
and create the appearance of a commercial antenna farm, which will adversely
affect the surrounding residential neighborhood.
C. The site for the proposed use relates to streets and highways sufficient to carry the
type and quantity of traffic generated by the subject use because the subject
property is served by Indian Peak Road, which is a public residential street. Aside
from normal residential traffic associated with the existing house, the only additional
traffic expected to result from the proposed project is an occasional service vehicle,
and would rarely involve large trucks or other equipment that could adversely affect
local traffic for any extended period of time. Any adverse effects of any additional
traffic are mitigated by the conditions of approval imposed by this approval.
D. In approving the subject use at the specific location, there will be no significant
adverse effects on adjacent property or the permitted use thereof, due to the
conditions that are being imposed as part of this approval. Although service
personnel would visit the site periodically, any impacts related to the maintenance
and operation ofthe existing antennae would be very minor and have no significant
adverse effects on surrounding properties. The existing antennae are visible from
homes across Indian Peak Road and from Fond duLac Road below. Since the
conversion of the existing antennae to commercial use constitutes an intensification
of the use that benefits the applicant financially but, as proposed by the applicant,
does not offset the visual impacts of the antenna array upon the surrounding
neighborhood, the approval of this proposal will be conditioned to require the
removal of all but two (2) of the existing eight-and-one-half-foot-tall antennae masts
and two (2) ofthe television antenna( e) from the roof of the structure, the painting of
the remaining lighter-colored portions of the roof-mounted antennae and support
structures that are permitted by this conditional use permit so as to blend better into
the background skyand the gray color of the existing antenna support structure. In
addition, no future changes to the location or configuration or which increase the
number or the height of any approved antennae or element of the remaining roof-
mounted antenna array will be permitted without an amendment to this conditional
use permit that is approved by the City Council, in order to prevent further visual
intrusion upon the surrounding neighborhood.
Resolution No. 2002-27
Page 5 of 17
E-6
E. Any issues related to interference impacts upon electronic and other types of
equipment, and actual or perceived effects upon human health, are strictly within
the purview of the FCC, since Telecommunications Act of 1996 prohibits the City
from "[regulating] the placement, construction, and modification of personal wireless
service facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the [FCC's] regulations
concerning such emissions."
F. The proposed use-as conditioned-is not contrary to the General Plan. The
subject property and the Grandview neighborhood are designated Residential, 4-6
DU/acre, which is a land use designation intended to accommodate medium-density
neighborhoods of detached, single-family homes and related accessory uses and
structures. No evidence has been provided that the owner has ever resided at the
existing home, and this property has not been occupied for at least the past three
and one-half years. The evidence demonstrates that the property has not been
maintained in a manner consistent with the quality ofthe surrounding neighborhood,
and the residential character of the neighborhood has been eroded by the
increasing deterioration and commercialization of this site. To prevent the proposed
commercial use of the property from exacerbating the substandard condition ofthe
residence, and to ensure that the proposed use is consistent with the General Plan,
the approval of the proposed project includes conditions to address these
deficiencies. The conditions include: 1) requiring contract landscape and
maintenance services in the event that the home not properly maintained in
conformance with the conditions; 2) requiring the removal of most of the visible
exterior evidence of the commercial use of the property; and 3) requiring the house
to be occupied and maintained in an appropriate manner. These conditions will
allow for the provision of wireless telecommunications services at this location, while
minimizing the visual and aesthetic impacts of this commercial wireless operation on
the surrounding residential neighborhood.
G. The required finding that, if the site of the proposed use is within any of the overlay
control districts established by RPVDC Chapter 17.40 (Overlay Control Districts),
the proposed use complies with all applicable requirements of that chapter, is not
applicable because the subject property is not located within any of the overlay
control districts established by RPVDC Chapter 17 .40.
H. Conditions of approval, which the City Council finds to be necessary to protect the
health, safety and general welfare, have been imposed and include (but are not
limited to) removal of all but two (2) of the existing eight and one-half feet-long roof-
mounted antenna masts and two of the television antenna(e), painting the
remaining roof-mounted antennae and masts, and prohibiting any further
modifications to them without first obtaining approval of modification to this
Resolution No. 2002-27
Page 6 of 17
E-7
conditional use permit; limiting regular maintenance hours to 8:00AM to 5:00 PM,
Monday through Friday; requiring the property to be landscaped and painted and
that weekly landscape and general maintenance services shall be provided by
contract with a qualified provider of such services if the residence is not properly
maintained in accordance with the conditions; requiring the house to be occupied;
requiring the applicant to obtain and maintain a valid business license; and
reviewing the project for compliance with all conditions of approval within six (6)
months ofthe date ofthe City's final action on the application. These conditions are
imposed through the City's authority over placement, construction and modification
of personal wireless service facilities, as expressly reserved to local government
under the Telecommunications Act of 1996.
I. The required findings that no existing or planned tower can accommodate the
applicant's proposed antenna or proposed service area, or that the proposed tower
cannot be located on the site of an existing or planned tower, are not applicable
because the proposed project does not involve the construction or placement of a
new antenna tower, and there is no antenna tower currently located on the subject
property.
Section 2: The City Council finds that the appellant's previous assertions that
commercial transmissions utilized antennae located inside of the house are not credible.
Based upon the review of FCC licensing data, the numerous commercial frequencies
licensed by the FCC to operate at the subject property are designed to operate from a
freestanding tower at an elevation offifteen meters (15m) above the ground. However, the
upstairs bedroom where the appellant claims that these commercial antennae were
previously used is no more than seven meters (7m) above the ground. Therefore, it is
reasonable to conclude that the roof-mounted antennae-which extend to a maximum
height of approximately ten meters (1 Om)-were the antennae that were used for
commercial purposes, and not the antennae that allegedly were located in the upstairs
bedroom, despite the appellant's claims to the contrary. It is also reasonable to conclude
that the additional vertical support structures and antennae added to the roof-mounted
antenna array by the appellant since June 21, 2001, are also intended to be used for
commercial purposes, and not for exclusively amateur non-commercial purposes as
claimed by the appellant. 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.
Section 3: The City Council finds that the proposed project-as conditioned-
qualifies for a Class 1 categorical exemption from the provisions of the California
Environmental Quality Act (CEQA) under Section 15301. The exemption applies to
Resolution No. 2002-27
Page 7 of 17
E-8
alterations to existing minor structures and uses "involving negligible or no expansion of
use beyond that existing at the time of the lead agency's determination." As conditioned,
the existing roof-mounted antenna support structure and array would be modified so that
most of the antennae are removed or relocated to the inside of the house, and the negative
aesthetic impacts of the existing antennae are minimized. In addition, the property will be
required to be occupied and maintained in an appropriate manner that is consistent with
City standards. Without the imposition of these conditions, and if the antennae and other
elements that have been added to the property since the submittal of the application to the
City were to remain in place, the City Council would not be able to find this proposed
project exempt from the requirements of CEQA, due to aesthetic impacts which could be
potentially significant and thus would require further analysis pursuant to the requirements
ofCEQA.
Section 4: The City Council finds that the approval of Conditional Use Permit
No. 230-as conditioned-is consistent with the City's Wireless Communications Antenna
Development Guidelines. This application was heard by the Planning Commission within
the time lines established by the State's Permit Streamlining Act and CEQA (Guideline
No. 1 ). Although the Guidelines express a preference for existing, non-single-family
structures as antenna sites (Guideline No. 2), installations on single-family residences are
not prohibited and have been approved previously elsewhere in the City. In addition, the
conditions of approval for this project will help to enhance the residential character of the
neighborhood by requiring the applicant to upgrade the appearance and maintenance of
the property. As a condition of approval, most of the exterior antennae will be removed, so
the project will have no significant impact upon any view corridors (Guideline No. 4). The
removal of these antennae will also serve to balance the aesthetic impacts of the antennae
upon the neighborhood with the applicant's financial benefit from the operation of the
commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae
removed from the roof of the house, they will be effectively screened from view from
adjacent properties or rights-of-way (Guideline No. 9).
Section 5: The City Council finds that the approval of Conditional Use Permit
No. 230-as conditioned-is consistent with the local zoning authority reserved to the City
of Rancho Palos Verdes by the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)) for
the following reasons:
A. The conditional approval of Conditional Use Permit No. 230 "[does] not
unreasonably discriminate among providers of functionally equivalent services ... and
[does] not prohibit or have the effect of prohibiting the provision of personal wireless
services" (47 U.S.C. 332(c)(7), subsections (B)(i)(l) and (II)). In reviewing all of the
applications to provide personal wireless services on other residentially-zoned
property within the City, the City has applied consistently its regulations to these
facilities so as to approve facilities that are compatible with surrounding uses and to
Resolution No. 2002-27
Page 8 of 17
E-9
modify or deny applications that do or will have adverse visual, aesthetic or other
impacts upon surrounding properties. The instant application is being approved
with conditions requiring the removal of most of the exterior antennae because it will
otherwise result in adverse visual and aesthetic impacts upon adjacent properties.
The City's conditional approval of this specific proposal does not prohibit the
applicant from providing wireless communications services because the applicant
still has the ability to provide these services from the remaining exterior antennae .
The applicant's representative has stated at a public hearing that the applicant has
the capability to diplex the antennae in order to utilize more frequencies. The
applicant has also admitted that he has transmitted commercially from the site since
1998, allegedly from antennae located inside the residence. The City has
previously approved applications for commercial antennae for a variety of
commercial wireless services and service providers, including applications for
properties that were zoned or used for single-family residential purposes.
Accordingly, the conditional approval of this particular application also does not
result in a ban or prohibition of, or have the effect of prohibiting, the placement of
these types of facilities within the City of Rancho Palos Verdes.
B. The application for Conditional Use Permit No. 230 was deemed complete by City
Staff on September 19, 2001. The City has acted on the applicant's request for
Conditional Use Permit No. 230 "within a reasonable period of time after the request
[was] duly filed with [the City], taking into account the nature and scope of such
request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). This application has been
processed by the City in a timely fashion and in accordance with the time lines
established by the State Permit Streamlining Act and CEQA, and the
Telecommunications Act. The only delays in the processing of this application are
attributable to the applicant's request for a waiver of the penalty fee (which was
denied by the City Council on September 18, 2001 ), the applicant's request for a
continuance of this application from the Planning Commission meeting of October
23, 2001 to the meeting of November 13, 2001, and the applicant's appeal of the
Planning Commission's conditional approval and request for continuance of the
appeal from the City Council meeting of February 19, 2002 to the meeting of March
19,2002.
C. In conditionally approving the application for Conditional Use Permit No. 230, the
City has not "[regulated] the placement, construction, and modification of personal
wireless service facilities on the basis of the environmental effects of radio
frequency emissions to the extent that such facilities comply with the [Federal
Communications] Commission's regulations concerning such emissions" (47 U.S.C.
332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions
were raised as issues of concern to surrounding residents at the public hearing and
in correspondence to the City, none of the required modifications to the existing
Resolution No. 2002-27
Page 9 of 17
E-10
antennae on the site are in response to these concerns. Instead, these
modifications are imposed only to address the aesthetic impacts of the antennae
upon the surrounding neighborhood. City Staff advised the Planning Commission
and the City Council that neither body could consider any environmental effects of
emissions that comply with FCC regulations, including purported impacts upon
health or alleged interference with television reception. The Planning Commission
and City Council relied upon that advice and the provisions of the Act and,
therefore, has not based its decision to conditionally approve the proposed project
in any respect upon any actual or perceived environmental effects attributable to
radio frequency emissions. Rather, the conditional approval regulates the aesthetic
impacts and land use compatibility issues traditionally addressed through the
exercise of local governmental police powers.
Section 6: The applicant's appeal of the conditions of approval imposed by the
Planning Commission is denied. However, modifications to the conditions entitle the
applicant to a refund of one-half of the appeal fee pursuant to Rancho Palos Verdes
Development Code Section 17.80.120.
Section 7: The time within which the judicial review of the decision reflected in
this Resolution, if available, must be sought is governed by Section 1094.6 of the California
Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the
Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v}), any person adversely
affected by the City's final action in this matter may, within thirty (30) days after such
action, commence an action in any court of competent jurisdiction.
Section 8: For the foregoing reasons and based on the information and findings
included in the Staff Report, the testimony and evidence presented at the public hearings
before the Planning Commission and the City Council, 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 approves Conditional Use Permit No. 230, thereby approving the commercial use of
certain antennae and related support structures and equipment on the site of a single-
family residence, located at 267081ndian Peak Road, in the Grandview community, subject
to the conditions contained in Exhibit 'A', attached hereto and made a part hereof by this
reference, which are necessary to protect the public health, safety and welfare.
Resolution No. 2002-27
Page 10 of 17
E-11
PASSED, APPROVED, AND ADOPTED this 16th day of April2002, by the following vote:
AYES: Councilmembers Clark and Ferraro, Mayor Pro Tern Stern and Mayor
McTaggart
NOES: Councilmember Gardiner
ABSTENTIONS: none
ABSENT: none
ATTEST:
~Nlf
Jo Purcell, City Clerk
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify thatthe
above Resolution No. 2002-27 was duly and regularly passed and adopted by the said City
Council at a regular meeting thereof held on April 16, 2002.
Resolution No. 2002-27
Page 11 of 17
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EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 230
(26708 Indian Peak Road)
1. Within ninety (90) days following adoption of this Resolution, the applicant and the
property owner shall submit to the City a statement, in writing, that they have read,
understand, and agree to all conditions of approval contained in this Resolution.
Failure to provide said written statement shall render this approval null and void.
2. This approval is for the use of antennae and related support structures and
equipment on the site of a single-family residence in the Grandview community for
commercial purposes. The commercial use of the property is conditioned upon the
following modifications:
a. The roof-mounted equipment shall consist of a maximum of two (2) vertical
masts, each of which shall not exceed eight and one-half (8%) feet in height,
as measured from the point where the mast meets the roof surface.
b. Each of the two masts may have up to four (4) radiating elements affixed
thereon, similar to those that currently are present at the site, provided that
they do not extend any higher than the mast itself and that each antenna or
radiating element does not project more than two feet horizontally from the
center of the mast.
c. In addition, two (2) television antennae also may remain on the roof of the
residence, so long as they do not exceed eight and one-half (8%) feet in
height, as measured from the point where they are attached to the roof
surface; that the horizontal boom of each antenna does not exceed six feet
in length; that no radiating element or antenna attached to the boom exceeds
two feet in length, and that all of the antennae and support structures on the
property are maintained in compliance with the Municipal Code.
d. The Director of Planning, Building and Code Enforcement shall review the
exterior masts and antennae to ensure compliance with this condition. Any
additional exterior antennae, masts or other antenna support structure(s)
shall require further approval or modification of this conditional use permit.
e. The exterior masts and antennae described in this condition may be used for
either commercial or non-commercial purposes.
Resolution No. 2002-27
Page 12 of 17
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The Director of Planning, Building and Code Enforcement is authorized to make
only minor modifications to the approved plans and any of the conditions of
approval, and only if such modifications will achieve substantially the same results
as would strict compliance with the approved plans and conditions. Otherwise, any
substantive change, such as the enlargement, expansion or addition to, the exterior
masts and antennae that this approval allows outside of the existing 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.
3. All project development on the site shall conform to the specific standards contained
in these conditions of approval' or, if not addressed herein, in the RS-5 district
development standards of the City's Municipal Code.
4. Failure to comply with and adhere to any or all of these conditions of approval may
be cause to revoke the approval of the project by the City Council after conducting a
duly noticed public hearing on the matter.
5. If the necessary modifications to site, the house and the existing roof-mounted
antenna support structure and array, as specified by these conditions of approval,
have not been made within ninety (90) days of the date of the City's final action on
this application, approval of the project shall expire and be of no further effect
unless, prior to expiration, a written request for extension is filed with the
Department of Planning, Building and Code Enforcement and approved by the City
Council.
6. In the event that any of these conditions conflict with the recommendations and/or
requirements of another permitting agency or City department, the stricter standard
shall apply.
7. The applicant shall submit a plan depicting the roof-mounted masts and antennae
that may be retained or erected pursuant to this approval, within (90) ninety days of
the date of the City's final action on this application. The applicant shall obtain a
building permit and any other approval required by the Building Code to modify or
construct the masts and attached antennae on the property.
8. Unless otherwise modified by these conditions, all conditions of approval for Site
Plan Review No. 8736-for the 198-square-foot storage room addition-and Minor
Exception Permit No. 555-for a front-yard fence in excess of the 42-inch height
limit-remain in full force and effect.
9. At all times, the applicant shall maintain the color of the entirety ofthe roof-mounted
antenna support structure and all of the antennae and radiating elements located
Resolution No. 2002-27
Page 13 of 17
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thereon, in a neutral color, such as gray, gray-green or gray-blue, that will blend with
the background foliage and the sky, to the satisfaction of the Director. Within ninety
(90) days of the date of the City's final action on this permit, the applicant shall paint
the white or lighter colored portions of the antenna support structure and array in a
neutral color that has been approved by the Director. The applicant shall provide
the Director of Planning, Building and Code Enforcement with a selection of
possible colors for approval prior to the painting of any portion of the antenna
support structure and array. At the Director's discretion, any portion of the antenna
array may be left unpainted if, in its unpainted state, it conforms to the intent of this
condition and substantially matches the existing gray color of the antenna support
structure. In addition, the Director reserves the right to require the applicantto paint
additional portions of the antenna support structure and array at any time that the
Director finds that additional painting of some elements of the antenna support
structure and array is necessary to further reduce the aesthetic impacts of the roof-
mounted antenna support structure and the radiating elements and antennae
located thereon.
10. The two roof-mounted masts and the two television antennae approved by this
resolution shall not be increased or expanded without the advance approval of the
City Council, including, but not limited to, any additional antennae, masts, antennae
support structures, antenna assemblies or radiating elements of any kind. Existing
masts and antennae that are permitted by this approval may be removed and
replaced for maintenance and/or repair as long as the replacement masts or
antennae are the same or less in height, length and mass and in the same location
as the approved masts and antennae, and provided that the total number of masts
and antennae is not increased.
11. Notwithstanding Condition No. 1 0 above, within ninety (90) days of the date of the
City's final action on this application, the applicant shall remove all existing
additional masts, antennae, horizontal support structure(s), pipes, ducts and other
components of the roof-mounted antenna assembly that are not expressly approved
by this Resolution. Any other antennae and antenna support structures shall be
removed, but may be relocated inside-the house at the applicant's discretion.
12. Except in case of emergency, regular maintenance of the antennae and related
exterior support equipment and structures shall only occur between the hours of
8:00AM and 5:00 PM, Monday through Friday.
13. All service vehicles related to the maintenance of the antennae and support
equipment shall be parked off-street in the driveway or garage of the house. No
more than two (2) such service vehicles are allowed on the site at any time.
Resolution No. 2002-27
Page 14 of 17
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14. No new exterior building-mounted or any other exterior antennae, related support
equipment or structures will be allowed without approval of a modification to this
conditional use permit by the City Council.
15. The support equipment for the antennae on the site, including air conditioning units,
shall not generate noise levels in excess of 65 dBA, as measured at the property
line of the subject property. Any sound attenuation measures to achieve this
standard shall be the responsibility of the applicant, and shall be subject to the
review and approval of the Director of Planning, Building and Code Enforcement.
16. No lights may be placed upon the roof-mounted antenna support structure, nor may
it be otherwise illuminated in any manner. This condition shall not restrict the use of
hand-held lighting, nor the use of temporary lighting during the performance of
emergency repairs.
17. The operation of the antennae on the site shall at all times comply with the
requirements, standards and regulations of the Federal Communications
Commission (FCC).
18. The exterior appearance of the house and site shall be maintained at all times in a
manner satisfactory to the Director by:
a. , Maintaining the exterior of the house and garage so that the paint is not
peeling or cracking in a manner detrimental to the value of the property and
neighboring properties; and,
b. Maintaining the landscaping in a neat and thriving condition.
19. Within ninety (90) days of the date of the City's final action on this application, the
property shall be occupied by the owner, or some other person chosen by the
owner, as that person's primary residence. The necessary improvements to make
the house habitable shall be completed within the initial90-day period-including a
functional kitchen, toilet and bathing facilities and utility connections for gas,
electricity, water and sewer-and shall be maintained continuously. The applicant
shall contract with a landscape and maintenance service to provide weekly service
at the property to ensure that the structure and grounds are maintained free from
litter, debris, and overgrown vegetation so as not to become an eyesore, if the
resident is not maintaining the property as required by these conditions of approval
and by the City's Municipal Code.
20. Within ninety (90) days of the date of the City's final action on this application, the
house shall be equipped with an appropriate fire suppression system subject to the
approval ofthe Director, smoke alarms and fire extinguishers, including those areas
Resolution No. 2002-27
Page 15 of 17
E-16
where the commercial power supplies, transmitters and other related equipment are
kept.
21. Within ninety (90) days of the City's final action on this application, the applicant
shall obtain a business license from the City. A valid City business license shall be
maintained at all times while this CUP is effective.
22. At approximately six (6) months from the date of the City's final action on this
application, the City Council shall review the project for conformance with the
conditions of approval, and determine if any conditions of approval need to be
added, deleted or modified, or if the permit should be revoked. Within the initial6-
month permit period, the applicant shall be responsible for completing all of the site
and use modifications described in this Resolution. Failure to fulfill these conditions
may lead to the revocation of this permit during the 6-month review process by the
City Council.
23. Nothing in this Resolution or these conditions of approval shall be construed as
requiring the City to defend any legal challenge to the issuance of Conditional Use
Permit No. 230 by a third party.
24. The roof-mounted antenna assembly authorized by this approval shall only be used
as an antenna support structure and for no other purposes.
25. Within thirty (30) days of the date of this approval, and annually thereafter, the
applicant shall provide to the City a listing of all radio facilities or frequencies that
are licensed by the FCC to this site. In addition, within thirty (30) days of this
approval, and annually thereafter, the applicant also shall provide to the City
documentation demonstrating that the site is being operated in accordance with
FCC emission requirements and limits, considering all facilities that are licensed by
the FCC to operate at the site or that use the site pursuant to an amateur radio
operator's license.
26. Since this approval is for the joint use of the existing antenna support structure and
array for both commercial and amateur purposes, at all times the applicant shall
maintain antennae on the site that are being used or are available for amateur use.
Resolution No. 2002-27
Page 16 of 17
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M:\Projects\CUP 230_EA 744 (Kay)\Resolution No. 2002-27.doc
Resolution No. 2002-27
Page 17 of 17
F-1
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,
F-2
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 April16, 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
Resolution No. 2018-61
Page 2 of 7
F-3
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 April14, 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,
Resolution No. 2018-61
Page 3 of 7
F-4
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:
Resolution No. 2018-61
Page 4 of7
F-5
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 (8 %) 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.
Resolution No. 2018-61
Page 5 of7
F-6
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.
Resolution No. 2018-61
Page 6 of 7
F-7
PASSED, APPROVED, AND ADOPTED this 21st day of August 2018.
~~
L ' Mayor
\
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 pass and adopted by the said
City Council at a regular meeting thereof held on August 21, 2 8.
Resolution No. 2018-61
Page 7 of7
ORANGE COUNTY | LOS ANGELES | RIVERSIDE | CENTRAL VALLEY
William W. Wynder
wwynder@awattorneys.com
(310) 527-6667
2361 Rosecrans Ave., Suite 475
El Segundo, CA 90245
P (310) 527-6660
F (310) 532-7395
AWATTORNEYS.COM
01203.0011/501693.2
August 29, 2018
SENT VIA E-MAIL jameskay@buddycorp.com & FIRST CLASS MAIL
Mr. James Kay
c/o Lucky's Two Way Radios Inc.
1350 E Flamingo Rd #13b34
Las Vegas, Nevada 89119-5263
Subject: Cease and Desist Operations of Conditional Use Permit No. 230 and
Removal of Roof-Mounted Antennas at 26708 Indian Peak Road
Mr. Kay:
We are the City Attorney for the City of Rancho Palos Verdes. At the duly noticed
public hearing before the City Council held on August 21, 2018, in accordance to Rancho Palos
Verdes Municipal Code (“RPVMC”) § 17.86.060, the City Council conducted its public hearing
to consider the possible revocation of Conditional Use Permit No. 230 (the “CUP”).
The revocation public hearing was necessitated because of your installation of
unpermitted roof-mounted antennas and the continued modification of the unpermitted roof-
mounted antennas since the City issued you a Notice of Violation on November 28, 2014. You
were not present at this public hearing. Your counsel proffered no defense to the proposed
revocation of this CUP except to request continuance of the hearing.
After considering all of the evidence introduced in the record, including public testimony,
the City Council unanimously adopted Resolution No. 2018-61, revoking in its entirety and
effective immediately Conditional Use Permit No. 230 for the installation of commercial
antennas and related support structures. A copy of that resolution of revocation is attached to
this correspondence
Demand is hereby made that all antennae-related operations must cease and desist, and
that all roof-mounted antennas must be removed from the premises immediately. The City will
conduct a property inspection within the coming week. Non-compliance with the City Council’s
revocation and this demand will result in appropriate enforcement action(s) by the City.
/ / /
/ / /
G-1
August 29, 2018
Page 2
01203.0011/501693.2
Your immediate attention to this demand and the directive of the City Council is now
required.
Very truly yours,
William W. Wynder
of ALESHIRE & WYNDER, LLP
Attachment
Copies: (v/e-mail only)
Honorable Mayor & Councilmember,
City of Rancho Palos Verdes
Mr. Doug Willmore,
City Manager
Mr. Ara Mihranian, AICP,
Director of Community Development
Glenn Tucker, Esq.,
City Prosecutor
Sabrina K. Brill, Esq.,
Bradley & Gmelich, LLP
700 N. Brand Blvd., 10th floor
Glendale, California 91203
G-2
G-3
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 267081NDIAN 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. 7 44 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,
G-4
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 Apri116, 2002, at which time all
interested parties were given an opportunity to be heard and present evidence; and,
WHEREAS, the City Council, on April16, 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
Resolution No. 2018-61
Page2of7
G-5
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 April14, 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 . 7 44." 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,
Resolution No. 2018-61
Page 3 of7
G-6
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:
Resolution No. 2018-61
Page 4 of 7
G-7
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 (8 %) 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.
Resolution No. 2018-61
Page 5 of 7
G-8
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.
Resolution No. 2018-61
Page 6 of 7
G-9
PASSED, APPROVED, AND ADOPTED this 21st day of August 2018.
~~
L ' Mayor
'
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Emily Colborn, City Clerk of the City of Rancho Palos Ve rdes, hereby certify that the
above Resolution No. 2018-61 was duly and regularly pass and adopted by the said
City Council at a regular meeting thereof held on August 21, 2 8.
Resolution No. 2018-61
Page 7 of7
H-1
ACTION TAKEN
Please sign and Date Entrit,:s
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osc-6 l--?s-~
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RANCHO PALOS V E RDES
Investigation Report
Division of Building & Safety
31 0-265-7800
' C'\_ ,_ ~ Address :~~~" C....'("'-.. ~ •
Description of Work : ~ ~~
c1'--v--~...._....-~ ~ •
PERMITS REQUIRED ~ ........ &~ 0:~ c;;d;~¥ ... ~~~ Building'!ib Electri ~ Plumbing o M e chanit&~
tf(f!!_ ~~ c::>f.'.. . ~ ..
INSTRUCTIONS
It (will) (will not) be nec essary to STOP WORK
immediately and obtain necessary permits.
Submit 3 copies of (I) Plot Plan , (2) Floor Plan ,
(3) Structural details , (4) Elevations , (5) Other
information as required below :
I certify that one copy was left at the above
address.
'9----~t--)~
!)J Inspector's Stgnature
Routing : No . I Inspector No . 2 Office No 3 Site
I-1
CITY OF
May 24, 2019
Indian Peak Properties LLC
Lucky's Two Way Radios, Inc.
Attn: James A. Kay Jr.
1350 E Flamingo Rd. #13834
Las Vegas, NV 89119-5263
RANCHO PALOS VERDES
COMMUNITY DEVELOPMENT DEPARTMENT
Sent Via Certified and Regular Mail
RE: Administrative Citation No. 1528 (CBLD2018-0015)
26708 Indian Peak Rd. Rancho Palos Verdes, CA 90275
Dear Indian Peak Properties LLC/ James A. Kay Jr:
On May 23, 2019, a stop work order was issued in regards to the unpermitted work that was
occurring on your property located at 26708 Indian Peak Rd .
According to Rancho Palos Verdes Municipal Code (RPVMC) § 15.18.040 (114.1 & 114.4)
states:
No person shall erect, construct, enlarge, alter, repair, move, improve, remove , convert,
demolish , equip, use, occupy, or maintain any building, structure or building service
equipment or perform any grading in the City or cause or permit the same to be done
contrary to, or in violation of, any of the provisions of this code or any of the technical
codes.
Any person who violates any provisions of this code or any of the technical codes shall be
deemed guilty of a misdemeanor, and shall be deemed guilty of a separate offense for
each and every day or portion thereof during which any violation continued or was
permitted, and upon conviction is punishable as set forth in RPVMC § 1.08.010
This letter accompanies Administrative Citation No. 1528 for building/working after a stop
work order was issued, which is a violation of RPVMC § 15.18. 040 ( 114 . 1 & 114.4). The fine
amount for the first citation is $2,500. The citation was written on May 23, 2019 at 11:30 a.m.
This citation must be paid within 30 days . After 30-60 days of non-payment, additional fee's shall
be added §1.16.220. If full compliance is not obtained, further enforcement actions will follow.
The City takes this violation of the Municipal Code seriously and will enforce violations to the full
extent of the law. Under the Municipal Code § 1.16.130 you may contest the Administrative
Citation within 30 days from the date with a written request and submitting the letter to The City
of Rancho Palos Verdes, Community Development, Code Enforcement Division.
30940 HAWTHORNE BOULEVARD I I~ANC HO PALOS VERDES . CA 90275-5391 I (3 10J 544-5228 I FAX (310J 544-5293 INWW .RPVCAGOV
0 PRINTED ON RECYCLED PAPER
I-2
CITY OF RANCHO PALOS VERDES
COMMUN ITY DEVELOPMENT DEPARTMENT
If you should have any questions, please contact me at 310-544-5299 or via email at
k le@rp vca.go v.
Kevin Le
Code Enforcement Officer
Issuing Officer/Official
c: Ara Mihranian, Community Development Director
Glen E. Tucker, City Attorney
30 940 HAWT HORNE BOULEVARD I RANC HO PALOS VE RDES. CA 90275-5391 I (3 10l 544-5228 I FAX (3 10) 544-5293 VVVVW.RPVCAGOV
0 PR INTED ON RE CYCLED PAPER
I-3
CITY OF
May 24, 2019
Indian Peak Properties LLC
Lucky's Two Way Radios, Inc.
Attn: James A. Kay Jr.
26708 Indian Peak Rd.
Rancho Palos Verdes, CA 90275
RANCHO PALOS VERDES
COMMUN ITY DEVELOPMENT DEPARTMENT
Sent Via Certified and Regular Mail
RE: Administrative Citation No. 1528 (CBLD2018-0015)
26708 Indian Peak Rd. Rancho Palos Verdes, CA 90275
Dear Indian Peak Properties LLC/ James A. Kay Jr:
On May 23, 2019, a stop work order was issued in regards to the unpermitted work that was
occurring on your property located at 26708 Indian Peak Rd.
According to Rancho Palos Verdes Municipal Code (RPVMC) § 15.18.040 (114.1 & 114.4)
states:
No person shall erect, construct, enlarge, alter, repair, move, improve, remove, convert,
demolish, equip, use, occupy, or maintain any building, structure or building service
equipment or perform any grading in the City or cause or permit the same to be done
contrary to, or in violation of, any of the provisions of this code or any of the technical
codes.
Any person who violates any provisions of this code or any of the technical codes shall be
deemed guilty of a misdemeanor, and shall be deemed guilty of a separate offense for
each and every day or portion thereof during which any violation continued or was
permitted, and upon conviction is punishable as set forth in RPVMC § 1.08.010
This letter accompanies Administrative Citation No. 1528 for building/working after a stop
work order was issued, which is a violation of RPVMC § 15.18.040 (114.1 & 114.4). The fine
amount for the first citation is $2,500. The citation was written on May 23, 2019 at 11:30 a.m.
This citation must be paid within 30 days. After 30-60 days of non-payment, additional fee's shall
be added §1.16.220. If full compliance is not obtained, further enforcement actions will follow.
The City takes this violation of the Municipal Code seriously and will enforce violations to the full
extent of the law. Under the Municipal Code §1.16.130 you may contest the Administrative
Citation within 30 days from the date with a written request and submitting the letter to The City
of Rancho Palos Verdes, Community Development, Code Enforcement Division.
30940 HAWTHORNE BOULEVARD I RANCI-10 PALOS VERDES . CA 90275-5391 I (310l 544-5228 I FAX (310l 544-5293 \11/WW.RPVCAGOV
0 PRINTED ON RECYCLED PAPER
I-4
CITY OF RANCHO PALOS VERDES
COMMUN ITY DEVELOPMENT DEPARTMENT
If you should have any questions, please contact me at 310-544-5299 or via email at
kle@rpvca.gov .
/~
Kevin Le
Code Enforcement Officer
Issuing Officer/Official
c: Ara Mihranian, Community Development Director
Glen E. Tucker, City Attorney
30940 HAWTHO I<NE BOULEVA RD I 1\ANCHO PALO S VE I<DES , CA 90275-5391 I (3 10l 544-5228 I FAX 1310) 544-5293 VVWW.Rr)VCAGOV
0 PRINTED ON RECYCLED PAPER
I-5
/\dministrative
rulo~; of
not epply.
in nature.
and discovery s!·!Cl!l
of
o;chedu!c,cl
City of Rancho Palos Verdes
NOTICE OF ADMINISTRATIVE CITATION
Citation# I RPV 1 5 2 8
Date Issued ~ Z :?·-/'{&--....=:::...;:::;..:::::::...;:::: _______ ....1
Time am/pm
Offender'sName:1nDiAN~ P"At<-f?@o?e&r/.tCI u:,lijhl!GS,A. K.l
Address I'3SD t fl.Av'1'11>'t1jP RP # /:JI?Jyf/ J';
L-Lft ;J st~v 1 CADL #
Zip Sex M/F
I?C!IIOj; 5~
Violation
Date Violation Observed
Location of Violation --1 · V>e.u.::.. \49 .krv p, 1'-t-l ·~ RPV, CA 90275
Previous.Waruings
Corrective Action
Required
MAIL PENALTY, PAYABLE
TO:
IMPORTANT
INFORMATION
CITY OF RANCHO PALOS VERDES
30940 HAWTHORNE BLVD.
Ranclw Palos Verdes, CA 90275·5391
You have been charged with :me or more
violations of The City of Rancho Palos Verdes
Municipal Code (RPVMC)
.NOTE: Each day that the violation contin\tes constitutes a separate
violation and may result in additional administrative citations
with incr¢asin fines Ja able to the Ci ofRPV "'
VIOLATION DESCRIPTION CODE FINE
Yard Maintenance (Overgrown Vegetation) 8.24.060(A) (!)(b)
Yard Maintenance (Landscaping) 8.24.060 (A)(!) (a)
Rubbish I Trash Can Violations 8.24.060,(2)
Vehicle Storage 8.24.060 (6) (c) -(d)
Property Maintenance Violations
(Unlawful Conditions) 8.24.060 (A)
Furniture I Appliance Violations 8.24.060 (4)
Banner I Sign Violations
Animal Violations (Not handled by LACO)
Graffiti I Broken Windows 8.24.060 (8)
Building/ Worki~ after STOP WORK 15.18.040 (113.4)
Building I Working with EXPIRED permits 15.18.040 (113.5)
Storm Water NPDES Violations 13.10.070 D (I)-(2)
Other Violation: Bu(lcli~ ( Wofl« vt~ t s . ( fl.
Q~~ S101' WNK
• ( 1:(. Ol.fo '-~ 2r'>uo.[9
I o Personal Service 'j)(Registered I Certified Mail
r )!(Posted on Property
Official's Signature
Official's Name
~2--
;C.evl_e; /.E::-
0
I-6
I-7
1 PROOF OF SERVICE BY FIRST CLASS MAIL & CERTIFIED MAIL
2 RETURN RECEIPT REQUESTED
3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4 I am employed by the City' of Rancho Palos Verdes, County of Los Angeles, State of California.
am over the age of 18 and not a party to this action . My business addre ss is 30940 Hawthorne Blvd, Rancho
5 Palos Verdes, CA 90275.
6 On [F riday, May 24, 2019 at approximately 10:00 A.M , I served on the interested parties in said
action the within:
7
CODE ENFORCEMENT Administrative Citation 1528 (CBLD2018-0015)
8
RE: PROPERTY AT 26708 Indian Peak Rd., Rancho Palos Verdes, CA 90275
9
by placing a true copy thereof in sealed envelope(s)
10
addressed as stated below: 1"'-
rtJ
U.S. Postal ServiceTM
CERTIFIED MAIL® RECEIPT
Domestic Mail Only
11 Indian Peak Properties LLC
Lucky 's Two Way Radios, Inc.
12 Attn: James A. Kay Jr.
~~~~~~~~~---~!lJB-
26708 Indian Peak Rd.
13 Rancho Palos Verdes , CA 90275
14
15
16
17
18
19
0
::T
C()
0 ~$~~~~~------------~ Extra Services & Fees {check box, add fea as approprlata)
0 D Return Recalpt (hardcopy) $----
0 D Return Receipt (electronic) $----
0 0 Certified Mail Restncted Delivery $ ___ _
0 0Adult Signature Required $----
I ID~A~d~ult~Sig~na~tu~~R~es~tn~cted~De~ll~~ry~$======~ 0 !postage ::T
~ !!:~,,..,-. ~. -------
Ul
M
0
!"'-
Indian Peak Properties LLC
Lucky's Tw o Way Radios, Inc.
Attn: James A. Kay Jr.
26708 Indian Peak Rd.
Rancho Palos Verdes , CA 90275
Postmark
Here
See Reve rse for In struct ions
20 In the course of my employment with the City of Rancho Palos Verdes, I have, through first -hand personal
observation, become readily familiar with the City of Rancho Palos Verdes's practice of collection and
21 processing correspondence for mailing with the United States Postal Service. Under that practice I deposited
such envelope(s) in an out-box for collection by other personnel of the City of Rancho Palos Verdes, and for
22 ultimate posting and placement with the U.S. Postal Service on that same day in the ordinary course of
business. If the customary business practices of the City of Rancho Palos Verdes with regard to collection
23 and processing of correspondence and mailing were followed, and I am confident that they were, such
envelope(s) were posted and placed in the United States mail at Rancho Palos Verdes, California, that same
24 date. I am aware that on motion of party served , service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
25
Executed on Friday, May 24, 2019 , at Rancho Palos Verdes, California.
26
I declare under penalty of perjury under the laws of th~etate of Califor · that the foregoing is
27 true and correct.
28 Kevin Le
(Typeorprintname) ..,~
J-1
C ITY OF
May 24, 2019
Indian Peak Properties LLC
Lucky's Two Way Radios, Inc.
Attn: James A. Kay Jr.
1350 E Flamingo Rd . #13834
Las Vegas, NV 89119-5263
RANCHO P A LOS V ERDES
CO MMUNITY DEVELOPME NT DEPARTM ENT
Sent Via Certified and Regular Mail
RE: Administrative Citation No. 1529 (CBLD2018-0015)
26708 Indian Peak Rd. Rancho Palos Verdes, CA 90275
Dear Indian Peak Properties LLC/ James A. Kay Jr:
On May 23, 2019, a stop work order was issued in regards to the unpermitted work that was
occurring on your property located at 26708 Indian Peak Rd.
According to Rancho Palos Verdes Municipal Code (RPVMC) § 15.18.040 (114.1 & 114.4)
states:
No person shall erect, construct, enlarge, alter, repair, move, improve, remove, convert,
demolish, equip, use, occupy, or maintain any building, structure or building service
equipment or perform any grading in the City or cause or permit the same to be done
contrary to, or in violation of, any of the provisions of this code or any of the technical
codes.
Any person who violates any provisions of this code or any of the technical codes shall be
deemed guilty of a misdemeanor, and shall be deemed guilty of a separate offense for
each and every day or portion thereof during which any violation continued or was
permitted, and upon conviction is punishable as set forth in RPVMC § 1.08.010
This letter accompanies Administrative Citation No. 1529 for building/working after a stop
work order was issued, which is a violation of RPVMC § 15.18.040 (114.1 & 114.4). The fine
amount for the first citation is $5,000. The citation was written on May 23, 2019 at 2:00 p.m .
This citation must be paid within 30 days. After 30-60 days of non-payment, additional fee's shall
be added §1.16.220. If full compliance is not obtained, further enforcement actions will follow.
The City takes this violation of the Municipal Code seriously and will enforce violations to the full
extent of the law. Under the Municipal Code §1.16.130 you may contest the Administrative
Citation within 30 days from the date with a written request and submitting the letter to The City
of Rancho Palos Verdes, Community Development, Code Enforcement Division.
3 0 94 0 HAWTHORNE BOU I_EVARD I RANC HO PAI_OS VE RDES , CA 90275-5391 I 1310l 5 44 -5228 I FAX 1310) 544-5293 WVVW .RPV CAGOV
u P RINTED ON R ECYCLED P APER
J-2
CITY OF RANCHO PALOS VERDES
COMMUN ITY DEVELOPMENT DEPARTMENT
If you should have any questions, please contact me at 31 0-544 -5299 or via email at
kle@rpvca.gov.
/~
Kevin Le
Code Enforcement Officer
Issuing Officer/Official
c : Ara Mihranian, Community Development Director
Glen E. Tucker, City Attorney
30940 HAWTHORNE BOULEVA I ~O I I~ANCHO PALOS VERDES. CA 90275-5391 I (3 10l 544-5228 I FAX (3 10) 544-5293 WWW.RPVCAGOV
0 PRINTED ON R ECYCLED PAPEI<
J-3
CITY OF
May 24, 2019
Indian Peak Properties LLC
Lucky's Two Way Radios, Inc.
Attn: James A. Kay Jr.
26708 Indian Peak Rd
Rancho Palos Verdes, CA 90275
RANCHO PALOS VERDES
COMM UNITY DEVELOPMENT DEPARTMENT
Sent Via Certified and Regular Mail
RE: Administrative Citation No. 1529 (CBLD2018-0015)
26708 Indian Peak Rd. Rancho Palos Verdes, CA 90275
Dear Indian Peak Properties LLC/ James A. Kay Jr:
On May 23, 2019, a stop work order was issued in regards to the unpermitted work that was
occurring on your property located at 26708 Indian Peak Rd.
According to Rancho Palos Verdes Municipal Code (RPVMC) § 15.18.040 (114.1 & 114.4)
states:
No person shall erect, construct, enlarge, alter, repair, move, improve, remove, convert,
demolish, equip, use, occupy, or maintain any building, structure or building service
equipment or perform any grading in the City or cause or permit the same to be done
contrary to, or in violation of, any of the provisions of this code or any of the technical
codes.
Any person who violates any provisions of this code or any of the technical codes shall be
deemed guilty of a misdemeanor, and shall be deemed guilty of a separate offense for
each and every day or portion thereof during which any violation continued or was
permitted, and upon conviction is punishable as set forth in RPVMC § 1.08.010
This letter accompanies Administrative Citation No. 1529 for building/working after a stop
work order was issued, which is a violation ofRPVMC § 15.18.040 (114.1 & 114.4). The fine
amount for the first citation is $5,000. The citation was written on May 23, 2019 at 2:00p.m.
This citation must be paid within 30 days. After 30-60 days of non-payment, additional fee's shall
be added §1.16.220. If full compliance is not obtained, further enforcement actions will follow.
The City takes this violation of the Municipal Code seriously and will enforce violations to the full
extent of the law. Under the Municipal Code §1.16.130 you may contest the Administrative
Citation within 30 days from the date with a written request and submitting the letter to The City
of Rancho Palos Verdes, Community Development, Code Enforcement Division.
30940 HAWTHORNE BOULEVARD I r\ANCHO PALOS VEr\DES, CA 90275-5391 I (3 10) 544-5228 I FAX (310) 544-5293 WWW.R PVCAGOV
0 PRINTED ON RECYCLED PAPER
J-4
CITY OF RANCHO PALOS VERDES
CO MMUNI TY DE VELOP MENT DEP ARTMENT
If you should have any questions, please contact me at 31 0-544-5299 or via email at
kle@rp vca .gov .
~
Kevin Le
Code Enforcement Officer
Issuing Officer/Official
c : Ara Mihranian, Community Development Director
Glen E. Tucker, City Attorney
30940 HAWTHORNE BOULEVARD I RANCHO PALOS VERDE S. CA 90275-5391 I (3 10l 544-5228 I FAX (3 10l 544-5293 vVWW .RPVCAGOV
0 PR INTED ON RECYCLED PAPER
J-5
J-6
/-\dn1inislrative info;·inaf ln nature.
apply.
Code and discovery sl"1a!l
conclusions,
Issuance or iD
citation issuance or of d schedu!cd
dl;;cJetion, may pursue any
<;uunau:" rernedies for ihf; u;Hectiot 1 ~Jf
i:."'ursuit vf a cr
rmy other rernecilos untli the totrd
person have been collected,
Citation#
City of Rancho Palos Verdes
NOTICE OF ADMINISTRATIVE CITATION I RPV15 2 9 -~ 1 -Jq ll...--.=..::::;...;=...:::::........ _____ ...~~
L
City
Zip
~qW<-SZ63
Date Violation Observed
Location of Violation
Previous Warnings
Corrective Action
Required
MIF
Violation
MAIL PENALTY, PAYABLE
TO:
CITY OF RANCIJO l' ALOS VERDES
30940 HAWTHORNE BLVD.
Rancho Palos Verdes, CA 90275-5391
IMPORTANT
INFORMATION
You have been charged with one or more
violations of The City of Rancho Palos Verdes
Municipal Code (RPVMC)
.NOTE: Each day that the violation continues constitutes a separate
violation and may result in additional administrative citations
with increasin fines a able to the Cit of RPV
VIOLATION DESCRIPTION CODE
Yard Maintenance (Overgrown Vegetation) 8.24.060(A) (1) (b)
Yard Maintenance (Landsc~Ilg) 8.24.060 (A) (1) (a)
Rubbish I Trash Can Violations 8.24.060 (2)
Vehicle Storage 8.24.060 (6) (c) -(d)
Property Maintenance Violations
(Unlawful Conditions) 8.24.060 (A)
Furniture I Appliance Violations 8.24.060 (4)
Banner I Sign Violations
Animal Violations (Not handled by LACO)
Graffiti I Broken Windows 8.24.060 (8)
Building I Working after STOP WORK 15.18.040 (113.4)
Building I Working with EXPIRED permits 15.18.040 (113.5)
Stann Water NPDES Violations 13.10.070 D (1)-(2)
Other Violation: Bu;ldi~ /wo(lt:vt~
a~~~~ I:>.; f, o4v
l
o Registered I Certified Mail o Personal Service
o Posted on Property
Official's Signature
Official's Name
FINE
#5;00o_ ~
{]rl.
J-7
1 PROOF OF SERVICE BY FIRST CLASS MAIL & CERTIFIED MAIL
2 RETURN RECEIPT REQUESTED
3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4 I am employed by the City of Rancho Palos Verdes, County of Los Angeles, State of California.
am over the age of 18 and not a party to this action . My business address is 30940 Hawthorne Blvd, Rancho
5 Palos Verdes, CA 90275.
6 On iF riday, May 24, 2019 at approximately 10:00 A.M, I served on the interested parties in said
action the within:
7
CODE ENFORCEMENT Administrative Citation 1529 (CBLD2018-0015)
8
RE: PROPERTY AT 26708 Indian Peak Rd., Rancho Palos Verdes, CA 90275
9
by placing a true copy thereof in sealed envelope(s)
10
addressed as stated below:
11 Indian Peak Properties LLC
Lucky 's Two Way Radios, Inc.
12 Attn: James A. Kay Jr.
CJ
U.S. Postal Service rM
CERTIFIED MAILrM RECEIPT
(Domestic Mall Only; No Insurance Coverage Provided)
~~~~~~~~~~~~~~~~~~~~~~~~
26708 Indian Peak Rd . ~L-~~~~~~~~~~~~~~~~~~~
13 Rancho Palos Verdes, CA 90275
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Postage $
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Certified Fee
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Indian Peak Propert ies LL C .
Lu cky's Two Way Radios , In c .
Attn: James A. Kay Jr.
26708 Indian Peak Rd .
Ra ncho Pa los Verde s, CA 90 275 ...
Postmark
Here
See Reverse for Instructions
20 In the course of my employment with the City of Rancho Palos Verdes , I have, through first -hand pe rsonal
observation , become readily familiar with the City of Rancho Palos Verdes 's practice of collection and
21 processing correspondence for mailing with the United States Postal Service. Under that practice I deposited
such envelope(s) in an out-box for collection by other personnel ofthe City of Rancho Palos Verdes , and for
22 ultimate po sting and placement with the U .S. Postal Service on that same day in the ordinary course of
business. lfthe customary business practices of the City of Rancho Palos Verdes with regard to collection
23 and processing of correspondence and mailing were followed, and I am confident that they were, such
envelope(s) were posted and placed in the United States mail at Rancho Palos Verdes, California, that same
24 date. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
25
Executed on Friday, May 24, 2019, at Rancho Palos Verdes, California.
26
I declare under penalty of perjury under the laws of the State of California that the foregoing is
27 true and correct. ~·
28 Kevin Le / ~
(Type or print name) (Signature)
K-1
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INDIAN PEAK PROPERTIES, LLC v. CITY OF RANCHO PALOS VERDES
Case Number: 18STCP02913
Hearing Date: August 9, 2019
ORDER DENYING PETITION FOR WRIT OF MANDATE
FILED
Sllll~a•or Co~m ~<>f C¢\i~OINiiJ
Count) of ln~ Angete~
AU G 0 9 LUlY
At issue in this writ petition is the decision of respondent Rancho Palos Verdes Planning
Commission, on behalf of respondent City of Rancho Palos Verdes (City) (collectively
Respondent), to revoke petitioner Indian Peak Properties, LLC's Conditional Use Permit No . 230
(CUP No. 230). Petitioner filed this petition for a writ of mandate pursuant to Code of Civil
Procedure sections 1094.5 and 1085.1 Petitioner seeks a court order setting aside Respondent's
revocation of CUP No. 230.2
Respondent opposes the petition.
The Petition is DENIED.
STATEMENT OF THE CASE
In June 2001, Petitioner's predecessor in interest submitted an application to the City to obtain
an after-the-fact conditional use permit to allow a roof-mounted antenna structure already
installed and in use at the property located at 26708 Indian Peak Road (Property). (AR 188-225.)
The conditional use permit application contained project plans depicting a roof-mounted
horizontal antenna rack with five vertical antenna masts for the transmission of commercial
and non-commercial communication signals . (AR 226-227.) The conditional use permit
application process involved multiple hearings before the Planning Commission and an appeal
to the City Council. Ultimately, the City Council approved CUP No . 230 for the use of a roof-
mounted antenna structure with two vertical antenna masts. (AR 64-80, 228-454.)
After the City approved CUP No. 230, Petitioner's predecessor in interest initiated federal court
litigation to challenging the terms of CUP No . 230; on July 14, 2004, the federal court ordered
the City to issue a new resolution allowing the five-mast antenna structure that was depicted
on the plans submitted with the June 2001 conditional use permit application. (AR 500-542.) In
2004 and 2005, to effectuate the federal court order, the City passed Resolution No . 2004-109,
which revised CUP No. 230 to allow commercial use of the five-mast antenna structure, subject
1 Petitioner's verified complaint and petition asserts two writ causes of action. Petitioner has
abandoned its traditional writ claim here. Petitioner's fourth, fifth and sixth causes of action
have been stayed pending resolution of its writ causes of action.
2 For ease of reference, the court refers to the Planning Commission and the City as Respondent
herein. The Planning Commission is a department within the City .
Page 1 of 10
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to certain conditions. (AR 549 -680.) The conditions stated any divergence from the five -vertical
antenna masts required City approval. (AR 61-63.}
Petitioner's predecessor in interest again initiated a federal court action challenging the City's
oo nditions ¢l f approval. The fede r al court r uled, however, the conditions imposed by the City
were reasonable , with the exception of a condition requiring Petitioner's predecessor in
interest to make the Property his primary residence . (AR 777 .) In light of that federal ruling, the
City revised the condition to instead require the Property be habitable and in compliance with
the Rancho Palos Verdes Municipal Code (RPVMC}. (AR 44-53.)
About a decade later, in August 2014, the City received a complaint "regarding the number of
antennas" installed on the roof of the Property. (AR 150.} The City inspected the Property and
observed eleven vertical antenna masts on the roof, including the initial five antenna masts
permitted by CUP No . 230. (AR 778 .}
In response to the eleven vertical antenna masts on the roof of the Property, the City issued
three notices to Petitioner requesting compliance with the conditions of CUP No . 230 .
Alternatively, the City suggested Petitioner submit an application for revision of CUP No. 230 to
allow the unpermitted antennae to remain . (AR 778-787 .) The City sent the notices on August
15, October 14 and October 28, 2014. (AR 778 , 782 , 785.) The August 15 notice advised if
Petitioner failed to take action "further code enforcement action will occur." (AR 779 .} The
October 14 notice stated a reinspection of the Property and a review of the case would occur
on October 28, 2014 . (AR 782 .} Finally, the October 28 notice warned :
"Are-inspection of your property, and r eview of this case, will be conducted on
November 5, 2014 . If upon reinspection of your property the violations continue to
exist, and the CUP revision application has not been submitted to the City, there will be
no further notices . Referral to the City Attorney's office will follow in hopes of resolving
the matter before legal action ensues." (AR 785 .}
In response, Petitioner objected to certain factual allegations in the notices, the premise the
Property was not then in compliance with CUP No . 230, and the fee required by the City to
process a conditional use permit revision application . (AR 788-812 .}
Nearly two years after the City's first notice to Petitioner requesting compliance with the
conditions for CUP No. 230 , on July 26, 2016 , the City agreed to a reduced the required fee to
review the revision application for the conditional use permit. (AR 813 -814 .) The City also
agreed to limit the information required for Petitioner's revision application to only some of the
information required under the RPVMC. (AR 813-814.} The City set a date of August 26, 2016
for either compliance with CUP No . 230's conditions or the submission of a r evision application
to modify CUP No. 230 . (AR 814 .}
On October 28 , 2016 , Petitioner submitted a revision application for CUP No . 230 (Revision
Application). The City determined, however, the Revision Application was inadequate and sent
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a letter to Petitioner on November 23 , 2016 explaining its decision the Revis i on Application was
incomplete . (AR 815-872.)
On June 28, 2017, the City, after meeting with Petitioner, agreed to suspend its enforcement
actions against the Property if Petitioner proceeded with its Revision Application in good faith.
(AR 888-892 .} Four months later, Petitioner had submitted no additional information to the
City. (AR 890.) In September 2017, when the City contacted Petitioner regarding the Revision
Application and requesting the additional information nece ssary to support thed application,
Pet it i oner requested more time . (AR 890 .)
On Decembe r 13, 2017, the City again met with Petitioner regarding the Revision Application,
and the parties agreed to deadline of February 28, 2018 for Petitioner's submission of the
information necessary to process the Revis ion Appl ication. (AR 893 -895 .) The "February
deadline came [and] nothing was submitted to the City ." (AR 152.)
Eight months later (and four years after the City 's original request to comply with the
conditions of CUP No. 230), on August 2, 2018, the City issued a Notice of Public Hearing to
consider revoking CUP No . 230 . (AR 18.) The notice stated the City was considering revocation
of CUP No. 230 "because the Installation of unpermitted antennas exceeding the maximum of 5
Council-approved , r oof-mounted antennae and support pole masts" co nstituted a violat ion of
the conditions for CUP No. 230 as well as a violation of the RPVMC. (AR 18.)
On August 21, 2018 , the City conducted a hearing on the revocation of CUP No . 230. (AR 141-
183 .) At the hearing, Petitioner requested a sixty-day continuance f or Petitioner's newly
r etained counsel to prepare. (AR 159-162 .) Petitioner's new counsel indicated she was prepared
to work cooperatively with the City to resolve the issues . (AR 159 .) The City deliberated and
voted to revoke CUP No . 230 at the hearing . (AR 178-183.)
This writ petition ensued .
STANDARD OF REVIEW
Petitioner challenges Respondent 's decision on the grounds Respond ent den ied Petition a fai r
hearing. Petitioner also contends Respondent's decision was arbitrary and capricious . Petitioner
argues, " ... once a conditional use permit is granted, the municipality is prohibited from taking
the permit away either: (1) arbitrarily, fo r improper reasons ; or (2) without appropriate
procedural due process safeguards." (Opening Brief 12 :26-28 .)
Petitioner's Fair Hearing Claim :
Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an
administrative decision are : whether the respondent has proceeded without jurisdiction,
whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An
abuse of discretion is established if the respondent has not proceeded in the manner required
Page 3 of 10
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by law, the decision is not supported by the findings, or the findings are not supported by the
evidence . (Code Civ . Proc. § 1094.5, subd. (b).)
The fair trial requirement "is equivalent to a prescription that there be a fair administrative
hearing ." (Pomona College v. Superior Court {1997) 45 Cai.App .4th 1716, 1730.) "Issues
related to bias of the hearing officer or agency, the admission or exclusion of witnesses and
evidence, and hearing procedures have all given rise to fair trial claims." (CEB, Cal.
Administrative Mandamus (3 rd ed. 2018) § 6.35 p. 6-30 .)
Where the issue is whether a fair administrative hearing was conducted , the petitioner is
entitled to an independent judicial determination of the issue. (Sinaiko v. Superior Court (2004)
122 Cai.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55
Cai.App.4th 93, 101.) Therefore, the court must independently review the fairness of the
administrative proceedings as a question of law. (Rosenblit v. Superior Court (1991) 231
Cai.App.3d 1434, 1438 .)
Petitioner's Arbitrary and Capricious Claim:
"The grant or denial of a conditional use permit is an administrative or quasi-judicial act ." (Goat
Hill Tavern v. City of Costa Mesa (1992) 6 Cai.App.4th 1519, 1525 .) Where no previous permit
existed, the grant or denial is reviewed under the substantial evidence standard . (Saad v. City of
Berkeley (1994) 24 Cai.App.4th 1206, 1213; Smith v. County of Los Angeles (1989) 211
Cai.App.3d 188, 199-200.)
The revocation of an existing use permit, however, generally constitutes a decision substantially
affecting fundamental vested rights and, therefore, is reviewed independently by the trial
court. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cai.App.4th 359 ,
367-368 .)
The record indicates the City granted CUP No . 230 in 2001, and Petitioner relies on the permit
to operate its 20-year old business providing commercial and non-commercial radio, microwave
and other communication signals to the Palos Verdes Peninsula . As such, revocation of this
conditional use permit requires the court to review the record independently.3 Given the
circumstances here, the court finds Petitioner has a fundamental vested right in the conditional
use permit such that the court is required to exercise its independent judgment on the
evidence to determine whether the weight of the evidence supports the findings .
Ill
Ill
3 The court does not find Goat Hill Tavern v. City of Costa Mesa, supra, 6 Cai.App.4th at 1519
requires a different standard of review in this case as suggested by Respondent .
Page 4 of 10
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ANALYSIS
Respondent Provided Petitioner A Fair Hearing :
Petitioner argues Respondent denied Petitioner due process when it denied Petitioner's
request to continue the revocation hearing. Petitioner contends it was denied the opportunity
to present a defense because Respondent unfairly elected not to continue the revocation
hearing for 60 days.
To determine whether a hearing is fair, the court is required to consider the nature of the
proceeding and the severity of the consequence involved . (Boddie v. Connecticut (1971) 401
U.S. 371, 378 ["[t]he formality and procedural requisites for the hearing can vary, depending
upon the importance of the interests involved and the nature of the subsequent
proceedings."]; Mathews v. Eldridge (1976) 424 U.S. 319, 334-334 [" '[d]ue process is flexible
and calls for such procedural p r otections as the part icular situation demands '"].)
On August 2, 2018, the City issued a Notice of Public Hearing to consider revocat ion of CUP No .
230 for August 21 , 2018. (AR 18 .) RPVMC section 17.86.060 states "[n]o permit shall be revoked
prior to providing a ten calendar day written notice to the holder of the
permit .... " (Fobi Decl., Ex. B.) Respondent held the hearing on August 21, 2018-19 calendar
days after the City provided notice to Petitioner. (AR 18, 141-183.) Thus, as an initial matter,
Respondent complied with its own ordinance and, in this case , provided Petit ioner almost twice
the time required by ordinance.4
At the hearing, Petitioner was represented by recently retained counsel-hired 16 days before
the hearing. (AR 159 .) Thus, Petitioner and its newly retained counsel had more than the ten
days required by the RPVMC as notice for the revocation hearing.
Petitioner does not argue as a matter of law and due process that ten days ' notice is
procedurally deficient in providing a fair hearing . Instead, Petitioner's actual argument is
Respondent abused its discretion under these facts when it denied Petitioner's request for
continuance . Petitioner contends, "[w]hen the denial of a continuance has the practical effect
of denying petitioner a fair hearing, the denial constitutes a prejudicial abuse of discretion,
constituting reversible error."5 (Opening Brief 16 :22-23.)
4 Petitioner has not suggested Respondent did not comply with its own policies and procedures.
Thus, Petitioner does not assert a structural error in the revocation hearing process .
5 In an action under Code of Civil Procedure section 1094.5, an agency abuses its discretion
when it "has not proceeded in the manner required by law, the order or decision is not
supported by the' findings, or the findings are not supported by the evidence." (Code Civ . Proc .
§ 1094 .5, subd. (b).) Thus, as Petitioner has not alleged a structural error, Petitioner must
contend Respondent erred as a matter of law when it denied Petitioner a continuance .
Pag e 5 of 10
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In an analogous context-administrative proceedings governed by Government Code section
11524-the denial of the continuance is governed under an abuse of discretion standard. An
agency abuses its discretion when the denial of the continuance amounts to a denial of due
process . (See Ring v. Smith (1970) 5 Cai.App.3d 197, 201.)
Petitioner has cited no authority that required Respondent to continue the revocation hearing
at its request . Thus, the question here is whether, under the circumstances, Respondent denied
Petitioner a fair hearing or otherwise failed to proceed in the manner required by law when it
denied the requested continuance .
Through the prism of independent judgment, the answer is no. Respondent neither denied
Petitioner a fair hearing nor failed to proceed in the manner required by law.
Petitioner argues one of the grounds for good cause for continuance of a proceeding is the
substitution of counsel. Petitioner relies on California Rules of Court, Rule 3.1332 to support its
contention. Petitioner explains it hired new counsel three days after Respondent served it with
the Notice to Revoke . Petitioner's new counsel thereafter obtained the services of a civil
engineer who submitted to Respondent as much documentation as could be obtained before
the revocation hearing on August 21, 2018 .
Petitioner argues sixteen days was not enough time for this newly-hired counsel to become
familiar with the decade long history of CUP No. 230, which included "years of prior federal
litigation, let alone sufficient time to take the action necessary to secure witnesses, to marshal
expert evidence or to mount the defense necessary to challenge Respondent's newly issued
Notice to Revoke CUP 230." (Opening Brief 16:5-11.) Petitioner also suggests Respondent did
not even consider the continuance request because the record shows the City Council did not
discuss the continuance after it closed the public session and deliberated. (AR 178-183.)
The court finds Petitioner's position unpersuasive . While Petitioner focuses the court's
attention on only the events that occurred after the issuance of the Notice to Revoke, the
process due Petitioner necessarily turns on all the facts known to the City Council.
As argued by Respondent, the negotiations between Respondent and Petitioner about
Petitioner's noncompliance had been going on for four years . The City provided Petitioner with
numerous extensions to comply with the conditions of the permit or submit its Revision
Application . (AR 778-814; see also 811, 814.) In fact, a councilmember specifically inquired of
City staff how many extensions had been provided and the length of those extensions . (AR
158.) Staff advised the City Council there had been "enough" four or five-month extensions to
run from November 2014 to February 2018. Thus, Petitioner had well more than 19 days to
mount a defense .
The City also notes Petitioner had counsel for this matter, and Petitioner's counsel attended
both a June 28 and December 13, 2017 meeting with City staff. (AR 888-895 .) Petitioner
provided no explanation to the City Council or this court as to why it retained new counsel
Page 6 of 10
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sixteen days before the revocation hearing. There was no evidence before the City Council
Petitioner's change in counsel was outside of Petitioner's control.
At the hearing, Petitioner's counsel did not explain the necessity for the continuance to defend
against the City's allegations .6 Petitioner's counsel merely requested "another extension " for
her client to "work with [her] office ... on addressing these issues and working cooperatively
with the City to come to some kind of resolution." (AR 159.) Petitioner's counsel stated
Petitioner had not even retained a civil engineer until after it had hired counsel. (AR 159-160 .)
Petitioner's counsel also admitted Petitioner's prior counsel"did not engage in the cooperative
process with City staff" and admitted Petitioner's prior counsel had "engage[ d) in some delay in
this matter .... " (AR 160 .)
Moreover, Petitioner's counsel revealed Petitioner had no intention of removing "all of the
antennas that have been placed on [the roof] since the issuance of the original conditional use
permit ... "even in the face of a revocation hearing. (AR 164.) Petitioner's counsel did concede
Petitioner was "willing to work with the City in order to come to some kind of a resolution even
if that involves removing some of the antennas." (AR 164.) It was clear from counsel's
comments, however, the purpose of a 60 -day continuance was not to defend against the City's
allegations or to allow for compl i ance of CUP No. 230 's terms; it was to continue to negotiate
with the City.
In fact, there is no evidence to suggest that Petitioner suffered prejudiced as a result of the
denial as Petitioner has presented no evidence or even argument of what it would have
presented had the continuance been granted . (See Doe v. University of Southern
California (2018) 28 Cai.App.Sth 26, 40 [rejecting a fair hearing argument when the petitioner
failed to show how the failure to review evidence until later in the proceeding prejudiced him];
see also Doe v. Regents of University of California (2016) 5 Cai.App.5th 1055, 1085-1093, [court
analyzes whether restrictions on cross -examination of sexual assault victim "rendered the
hearing unfair by prejudicing" the alleged perpetrator].) Petitioner's counsel did not indicate
any purpose for the continuance of the hearing other than trying to work with the City to
resolve the dispute . Petitioner's counsel did not identify, for example, any evidence it could not
present on the revocation issue at the hearing because of limited preparation time . In fact, at
the time of the hearing, Petitioner had presented its written opposition to the revocation and
its defense was before the City Council. (AR 97.)
Finally, although the City did not expressly discuss a "continuance" in the closed session of the
August 21 , 2018 hearing, the City Council understood the request was before it. The City
Attorney specifically advised the City Council the continuance request was before it. (AR 177-
178 .) During deliberations, some councilmembers noted their "100 percent" agreement with
6 Petitioner's counsel did not suggest Petitioner was not violating the conditions of CUP No .
203. In fact, Petitioner's counsel conceded Petitioner was not in compliance with the conditions
of the permit because he had added antenna "since the issuance of the original conditional use
permit ." (AR 164 .)
Page 7 of 10
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City staff's report . (AR 179-182.) The staff report recommended denial of a continuance given
the "numerous opportunities" Petitioner had been given "to correct the violation." (AR 5) The
staff report suggested Petitioner had "chosen not to" correct the violation which was consistent
with Petitioner's position at the revocation hearing . (AR 5.) In addition, the City Council had
evidence before it Petitioner had amassed more antennas on the Property since the City began
attempting to resolve the violation issues with Petitioner in 2014. (AR 174.)
Resp.ondent's decision to deny Petitioner's request for a 60-day continuance did not deprive
Petitioner of a fair hearing. Additionally, Respondent's decision was not arbitrary resulting in a
denial of Petitioner's due process rights.
Respondents' Decision Was Not Unlawful or an Abuse of Discretion :
Petitioner argues Respondent's decision to revoke CUP No . 230 violated federal law and was
not an abuse of discretion (i.e . arbitrary and capricious).
Respondent's Decision Did Not Violate Federal Law:
Petitioner argues the revocation of CUP No . 203 amounts to an unlawful imposition of
restrictions on Plaintiff's ability to engage in its lawful business of providing commercial and
non-commercial, signal communication services. Specifically, the Notice of Violation seeks the
removal of satellite dish drum in violation of federal law (47 CFR § 1.4000, subdivision (a)(1)(i)-
(iv)). Further, through its revocation, the City is seeking-as set forth in the Notice of
Violation-the removal of a dish on the Property that is exempt from the permit process
pursuant to RPVMC section 17.76.020, subdivision (B)(2).
The City seemingly concedes the satellite dish drum's use and placement is preempted by 47
CFR section 1.4000, which prohibits local land use restrictions that impair the installation,
maintenance, or use of certain types of antennas, specifically direct broadcast satellite service,
video programming services or television broadcast signals. {47 CFR § 1.4000, subd. (a)(1).)
he City persuasively argues, however, notwithstanding the satellite dish drum, Petitioner was
required to comply with the conditions associated with CUP No . 230 and failed to do .
The court agrees: if the satellite dish drum was the sole basis for the City's finding Petitioner
was not in compliance with the conditions of CUP No . 230 , the writ petition would be granted.
However, as the Notice of Violation recited, Petitioner violated the conditions of CUP No . 230
by having more than five vertical antennae on the roof; the City determ i ned there were eleven
vertical antenna masts on the roof, including the five antenna masts permitted by CUP No. 230 .
(AR 778.) As noted earlier, Petitioner's counsel conceded this issue at the hearing. (AR 164.)
The evidence in the record demonstrates Petitioner was in violation of the conditions
associated with CUP No . 230, even though the court recognizes it may not consider the satellite
dish drum as a "violation" of conditions. Thus, the decision to revoke CUP No. 230 does not
Page 8 of 10
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violate federal law . Respondent's evidence established the violations without regard to the
satellite dish drum . Respondent's future enforcement actions, if any, are not before this court.
Respondent 's Decision Was Not an Abuse of Discretion :
As an initial matter, the weight of the evidence suppo rts Respondent's findings Petitioner
violated the conditions associated with CUP No . 203. (AR 29, 32, 100, 101, 107, 149-152.)
Petitioner has an affirmative obligation to demonstrate error. It did not do so .l
In its Opening Brief, Petitioner appears to suggest Respondent's decision that Petitioner's
Revision Application was "incomplete" was an abuse of discretion . Petitioner argues it suffered
prejudice from the City's representations that Petitioner was required to seek a modification to
CUP No . 230.8
"A traditional writ of mandate under Code of Civil Procedure section 1085 is a method for
compelling a public entity to perform a legal and usually ministerial duty. [Citation .] The trial
court reviews an administrative action pursuant to Code of Civil Procedure section 1085 to
determine whether the agency's action was arbitrary, capricious, or entirely lacking in
evidentiary support, contrary to established public policy, unlawful, procedurally unfair, or
whether the agency failed to follow the procedure and give the notices the law requires ." (Fry
v. City of Los Angeles (2016) 245 Cai.App.4th 539 , 549.) "So long as a reasonable bas is for such
action exists, the motivating factors considered in reaching the decision are immaterial
[citation] and supportive findings are not required." (Stauffer Chemical Co . v. Air Resources
Board (1982) 128 Cai.App.3d 789 , 794-795 .)
"[l]t is petitioner's burden to establish that [the agency's] decision was arbitrary, capricious,
entirely lacking in evidentiary support, unlawful, or procedurally unfair." (American Coatings
Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 460.) "The arbitrary
and capricious standard of review employed under Code of Civil Procedure section 1085 is
more deferential to agency decision making than the substantial evidence standard ." (American
Coatings Assn . v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461.)
7 Petitioner does not actually argue it did not have more than five vertical antennae on the
Property. Petitioner's Opening Brief also does not argue Petitioner was in compliance with the
terms of the conditional use permit. Instead, Petitioner contends additional satellite dish drums
on the Property were not a violation of the conditions of CUP No . 230 based on federal law.
8 This argument is problematic for two reasons . First, as noted by Respondent, Petitioner's claim
may be foreclosed as it failed to exhaust its administrative remedies to challenge a finding of an
incomplete application . (RPVMC § 17.80.050.) Second , it is unclear whether Petitioner's
challenge here is asserted pursuant to Code of Civil Procedure section 1085 under a theory
Respondent failed to comply with a ministerial duty. The court has nonetheless addressed it as
a claim for traditional mandamus.
Page 9 of 10
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' . I • ' '
Here, Petitioner fails to develop this argument and provides no analysis as to why the City's
decision that the Revision Application was "incomplete" was arbitrary or capricious.
Moreover, Petitioner failed to exhaust its administrative remedies. RPVMC section 17.80.050
states in relevant part:
"[A]ny interested person may file an appeal of a director's decision with the
planning commission; provided, the appeal is filed in writing within 15 calendar
days after the notice of the director's decision is issued and the appropriate fee,
as established by resolution of the city council, is paid. The appeal shall set forth
the grounds for appeal and any specific action being requested by the appellant.
The director's decis ion is final if not appealed to the planning commission within
15 calendar days ."
As argued by Respondent, Petitioner has neither pleaded nor presented evidence it complied
with this ordinance. Petitioner did not challenge Respondent's decision the Revision Application
was "incomplete ."
Instead, Petitioner suggests its failure to exhaust administrative remedies is excused because
exhaustion would have been futile. Petitioner's citation to the record (AR 886} does not
demonstrate what the City Council's decision would be on the question of the "completeness"
or the request to modify CUP No. 230 generally. (Jonathan Neil & Assoc., Inc. v. Jones (2004} 33
Cal.4th 917,936 ["The futility exception requires that the party invoking the exception 'can
positively state that the [agency] has declared what its ruling will be on a particular case."'].)
The records states that while the City staff would recommend denying the request to modify
CUP No . 230, "the City Council has the authority to accept the proposed application revisions
should it choose to do so, and that the public hearing would allow appropriate evidence on
such a question ." (AR 886 .} The letter to Petitioner also indicated that "it is appropriate for
[Petitioner] to exhaust administrative remedies ... " and any decision on the modification was
for the City Council. (AR 886.}
The court cannot find on this record Respondent's findings and decision were an abuse of
discretion or arbitrary and capricious.
CONCLUSION
Based on the foregoing, the petition (causes of action one , two and three) is DENIED. The
matter is transferred to Department 1 for reassignment of the remaining causes of action . The
stay as to the remaining causes of action is dissolved.
IT IS SO ORDERED.
August 9, 2019
Hon . Mitchell Beckloff, Judge
Page 10 of 10
Electronically Received 11/22/2019 04:19 PML-1
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[Exempt From Filing Fee
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ALESHIRE & WYNDER, LLP
WILLIAM W. WYNDER, State BarNo. 84753
wwynder@awattorneys. com
F IL ED~
S ·-etiOt Cot.Jtit ctf C:alif'Otfia ~ . nty CJ.f LCJ.:s Angeles
112 /0.5/20 119·
GLEN E. TUCKER, State Bar No. 54709
gtucker@awattorneys. com
511 l!ni R C'.1dei. E :eD.J IIidl 0 ·1 ae o f Cou1
LUMT. FOBI, State BarNo. 317514
lfobi@awattorneys. com
2361 Rosecrans Ave., Suite 475
El Segundo, California 90245
Telephone : (31 0) 527-6660
Facsimile: (31 0) 532-7395
Attorneys for Plaintiff
CITY OF RANCHO PALOS VERDES
a... A. Bal'kln '-'If---------
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
CITY OF RANCHO PALOS VERDES, a
municipal corporation,
Plaintiff,
v.
INDIAN PEAK PROPERTIES, LLC, a Nevada
Case No. 18STCV03781
Assigned for All Purposes to:
Hon. Monica Bachner, Dept. 71
FP :R:QPQi-il>~ JUDGMENT
corporation; LUCKY'S TWO WAY RADIO, a Action Filed: November 5, 2018
Nevada corporation; JAME S A. KAY, Jr., an
individual; DOES 1 through 20, INCLUSIVE
Defendants.
On October 29,2019 Plaintiff City of Rancho Palos Verdes ' Motion for Summary
"
Judgment, or Alternatively, for Summary Adjudication in the above-captioned matter came on for
hearing in Department 71 of the above-entitled Court, the Honorable Judge Monica Bachner
presiding. The City of Rancho Palos Verdes was represented by Alison S. Flowers, Esq., ofthe
Aleshire & Wynder, LLP, and Defendant Indian Peak Properties, LLC, was represented by Dawn
Cushman, E sq., of Bradley& Gmelich, LLP.
The Court, having conside red the papers and arguments of counsel, issued its Ruling on
the Submitted Matter granting Plaintiff's Motion for Summary Judgment, and Alternativ ely
granting Summary Adjudication on the First, Second, and Third Causes of Action in the City's
0 1203 .0035/617024 .1 -1-
[PROPOSED] JUDGMEN T
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I
1 First Amended Complaint to Abate a Public Nuisance. A copy of the ruling, issued on November
2 20, 2019, stating the Court's its reasons for granting the Motion, is attached hereto as Exhibit A, .
3 On the basis ofthe foregoing, THE COURT ORDERS, ADJUDGES AND DECREES
4 that:
5 1. On the First, Second, and Third Causes of Action in the City's First Amended
6 Complaint to Abate a Public Nuisance, judgment is hereby entered in favor of Plaintiff, the City of
7 Rancho Palos Verdes.
8 2. This Judgment effectively disposes of all causes of action alleged in the City's First
9 Amended Complaint to Abate a Public Nuisance, and is a final judgment.
10
11
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14
15
16
17
18
19
20
21
22
23
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25
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12/0512019
Dated:
MONICA BACHNER
JUDGE OF THE SUPERIOR COURT
01203 .0035/617024.1 -2-
[PR QPQSSD] JUDGMENT
L-3EXHffiiTA
L-4
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
APPEARANCES:
For Plaintiff(s): No Appearances
For Defendant(s): No Appearances
NATURE OF PROCEEDINGS:
Ruling on Submitted Matter
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
The Court, having taken the matter under submission on 10/29/2019, now rules as follows:
Plaintiff City of Rancho Palos Verdes' motion for summary judgment against Defendant Indian
Peak Properties, LLC is granted.
Plaintiff City of Rancho Palos Verdes ("Plaintiff'') moves for summary judgment against
Defendant Indian Peak Properties, LLC ("Defendant"). In the alternative, Plaintiff moves for
summary adjudication of the 1st (public nuisance -operation of commercial antennae in
violation of existing conditional use permit ("CUP") in violation ofRPVMC §17.76.020(A))
[Issue No. 1], 2nd (public nuisance-operation of commercial antennae without a CUP in
violation ofRPVMC § 17.76.020(A)) [Issue No.2], and 3rd (public nuisance -Civil Code
§3491) [Issue No.3] causes of action in Plaintiffs first amended complaint ("FAC"). (Notice of
Motion, pgs. 1-2; FAC.) (See C.C.P. §§437c(p)(l) and 437c(p)(2).) In its supplemental
opposition, Defendant requests a stay of the action. The Court has considered the papers and
arguments of counsel.
Requests for Judicial Notice and Evidentiary Objections
Plaintiff's 3/26/19 request for judicial notice is granted. However, the Court will not take judicial
notice of the truth of the matters asserted in the Answer, City Council Resolutions, Meeting
Minutes, Civil Minutes, Application for Revision, Notice of Public Hearing, Agenda, Agenda
Report, and Meeting Minutes. (P-RJN, Exhs. B, C, D, E, F, G, H, I, K, L, L, N, 0, P, Q, R, S,
and T.)
Minute Order Page 1 of 17
L-5
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
Plaintiffs 8/16/19 request for judicial notice is granted. However, the Court will not take judicial
notice ofthe truth of the matters asserted in the Order. (P-RJN, Exh. 1.)
Defendant's 10/15/19 request for judicial notice is granted. However, the Court will not take
judicial notice of the truth of the matters asserted in the case. (D-RJN.)
Plaintiffs 10/24/19 request for judicial notice is granted. However, the Court will not take
judicial notice of the truth of the matters asserted in the ruling. (P-RJN, Exh. A.)
Defendant's 8/13/19 evidentiary objections to the Declaration of Ara Mihranian are overruled as
to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
Defe ndant's 8/13/19 evidentiary objections to the Declaration of Christy M. Lopez are overruled
as to Nos. 1, 2, 3, 4, and 5.
Defendant's 8/13/19 evidentiary objections to the Declaration of E. Lee Afflerbach are overruled
as to Nos. 1, 2, and 3.
Defendant's 8/13/19 evidentiary objections to the Declaration of Glen E. Tucker are overruled as
to Nos. 1, 2, 3, 4, and 5.
Defendant's 8/27/19 evidentiary objection to Plaintiffs 8/16119 request for judicial notice is
moot given that Defendant objects to the Court taking judicial notice of the truth of the matter
asserted within the Order given the Court's ruling on the request for judicial notice.
Plaintiffs 10/24119 evidentiary objection to th e D eclaration of Bart Fisher is overruled as to No.
1. Plaintiffs evidentiary objection to the D eclaration of Dawn Cushman is overruled as to No.2.
Procedural Background
The h earing on the instant motion was originally set for June 11,2019. On May 14,2019, the
parties entered a stipulation continuing the h earing to July 2 , 2019 to allow for the deposition of
Ara Mihranian ("Mihranian"). On June 24, 2019, the Court granted Defendant's ex p arte
application, continuing the hearing to August 27, 2019, on the grounds that Defendant had not
prepared an opposition to the motion due to matters beyond Defendant's control, including the
Minute Order Page 2 of 17
L-6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
departure of the attorney responsible for preparing the opposition from the firm. (Court's 6/24/19
Minute Order; See 6/21/19 Ex Parte Application.) On August 20,2019, the Court denied
Defendant's 8/13/19 ex parte application for a continuance, which was made on the grounds that
an opposition could not be timely prepared, filed, or served due to factors beyond Defendant's
control. (Court's 8/20/19 Minute Order.; See 8/13/19 Ex Parte Application.) On August 23,
2018, the Court continued the hearing to August 28, 2019. (8 /23119 Minute Order.) On August
28, 2019, the Court issued a ruling granting Defendant's request for a continuance and
continuing the hearing to October 29,2019. (Court's 8/28119 Minute Order & Ruling.)
Prior to the hearing on the motion, Defendant filed a supplemental opposition and supporting
documents and Plaintiff filed a supplemental reply. The Court will rely on the arguments raised
in the supplemental filings in ruling on the motion. In addition, the Court notes that Plaintiffs
Separate Statement of Material Facts sets forth the same 46 material facts in support of each of
the three issues and renumbers those facts for each issue, for which Defendant's responses
remain consistent between the three issues . For simplicity, the Court will refer to Nos. 1-46 in
referencing Plaintiffs material facts as to any of the three issues.
On October 11, 2019, Defendant filed an appeal to the denial of Defendant's writ in the
Mandamus Action. (See Mandamus Action, 10117119 Notice of Filing.) However, the fact the
Mandamus ruling is on appeal and not final does not bar this Court from issuing its own ruling as
to these issues.
The Court notes Defendant's assertion in opposition that a stay of the instant action is necessary
pending further resolution of the claims in the related Mandamus Action. (Opposition, pg. 13.)
Defendant argues that since the Mandamus Action seeks to void and vitiate the administrative
actions taken by Plaintiff that resulted in the revocation of Defendant's CUP 230, which is the
same CUP at issue in Plaintiffs nuisance claims, it is premature for the Court to decide Issues
Nos . 1 and 2 (that D efendant is operating commercial antenna in violation of CUP 230 or
without a CUP) while the Mandamus Action challenging Plaintiffs action is on appeal.
(Opposition, pg. 14; Supp-Decl. of Cushman ~~4-7 .) However, Defendant fails to argue how
Issue 1 is implicated by the pending appeal in the Mandamus Action. Moreover, Defendant has
not demonstrated how the Court's ruling on Issue No.2, in consideration of the evidence before
it, and in a manner that does not create a conflict with the ruling in the Mandamus Action would
b e premature. In reply, Plaintiff does not address the issue of the potential for conflicting rulings
in light of the appeal of the Mandamus Action but asserts that there is no basis for staying this
case because: (1) Defendant cannot seek affirmative relief of a stay through an opposition to a
Minute Order Page 3 of 17
L-7
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
November 20,2019
11:56 AM
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
motion; and (2) the Mandamus Action ruling upholding the revocation has not been stayed.
(Reply, pg. 13.) Plaintiff is correct that Defendant improperly requests affirmative reliefthrough
an opposition. The Court notes Plaintiff appears to misconstrue Defendant's argument-
Defendant does not seek a stay of the Mandamus Action or the administrative decision
underlying the Mandamus Action, but of the instant action. (Reply, pgs. 13-14.) However, the
Court declines to rule on Defendant's request for a stay of the action as the parties have not had
the opportunity to fully brief the issues and present evidence in support and opposition of the
affirmative request.
Background of Action
Plaintiff filed a complaint for public nuisance against Defendant and other named defendants on
November 5, 2018 . On February 13, 2019, Plaintiff filed its FAC, dismissing all other named
defendants. Plaintiffs F AC is based on allegations that Defendant's installation and operation of
commercial antennae at a property located at 26708 Indian Peak Road, Rancho Palos Verdes,
California ("property") in violation of Ranch Palos Verdes Municipal Code ("RPVMC") §§
17.76.020(A), and 1.08.010, and as such, constitutes a public nuisance and seeks an order
enjoining Defendant from such conduct. (FAC ~~3-4 ; Prayer ~6.) Plaintiffs argue they are
entitled to summary judgment against Defendant on the grounds that there are no defenses to the
causes of action, that there are no triable issues as to any material fact, and that Plaintiff is
entitled to judgment as a matter oflaw. (Notice of Motion, pg. ii.)
The Court notes that Plaintiffs public nuisance causes of action are based on the theory that
Defendant's conduct constitutes a nuisance per se; Plaintiff alleges that Defendant has violated
various provisions of Plaintiffs municipal code that set forth what constitutes a public nuisance.
Accordingly, Defendant's arguments and/or evidence in opposition as to whe ther Plaintiff
submitted evidence supporting the elements of a public nuisance cause of action, such as
balancing the harm against the benefit, are irrelevant. (See Opposition, pgs. 7-8.)
Issue No. 1: Public Nuisance -Violation of RPVMC § 17. 76.020(A) (Operation of Commercial
Antenna Without an Approved CUP) (1st COA)
"[W]here the law expressly declares something to be a nuisance, then no
inquiry beyond its existence need b e made and, in this sense, its mere exi stence
is said to be a nuisance per se. [Citation.] But, to rephrase the rule , to be
considered a nuisance per se the object, substance, activity or circumstance at
Minute Order Page 4 of 17
L-8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
issue must be expressly declared to be a nuisance by its very existence by some
applicable law." (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 114.)
RPVMC § 17.76.020(A), which governs commercial antennas, provides that the installation
and/or operation of a commercial antenna shall require the submittal and approval of a CUP by
the planning commission pursuant to Chapter 17.60. RPVMC § 17.60.080, which governs failure
to comply with a CUP, provides that, "if any conditions to the use [provided for via a CUP] ...
are not maintained, then the [CUP] shall be null and void. Continued operation of a use requiring
a [CUP] after such [CUP] ... is found [null and void] shall constitute a violation of this title."
RPVMC § 1.08.01 O(D) provides that any violation of Plaintiff's Municipal Code constitutes a
public nuisance. (See RPVMC § 1.08.010(D)(l) ("[A]ny condition caused or permitted to exist in
violation of any of the provisions of this code shall be deemed a public nuisance and may be
abated as such at law or equity. Prior to seeking civil or equitable relief, the city shall provide the
person responsible for the public nuisance with notice and a reasonable opportunity to cure.").)
To meet its burden in summary judgment/adjudication on the 1st cause of action, Plaintiff must
submit evidence demonstrating that Defendant's conduct qualifies as continued operation of its
commercial antennas after the CUP allowing Defendant's operation was found to be null and
void as to Defendant's conduct and that Plaintiff provided Defendant with notice and a
reasonable opportunity to cure.
Plaintiff submitted evidence suggesting Defendant violated its CUP and, as such, Defendant's
conduct amounts to a public nuisance. Plaintiff submitted evidence that on June 21, 2001, James
Kay ("Kay"), former owner of the property and president of Defendant, submitted an application
for CUP 230 to Plaintiff for after-the-fact approval of a five-mast, roof-mounted commercial
antenna that included related support structures then-existing on the Proper ty ("Original Antenna
Array"), which was conditionally approved on November 15, 2001. (USSF Nos. 3-4 ("USSF"
refers to undisputed facts).) Kay appealed the conditions of the CUP 230 approval and following
the City Council's denial of his appeal, filed suit in the United States District Court, Central
District ofCalifornia, challenging the conditions. (USSF Nos. 5-7 .) On July 14 ,2004, the
District Court ruled in Kay's favor and ordered Plaintiff to issue a new resolution allowing Kay
to us e the Original Antenna Array subject to reasonable conditions. ([Disputed SSF ("D-SSF")
No. 5] P-RJN, Ex h . J.) The City C ouncil thereafter adopted a resolution permitting operation of
the Original Antenna Array and amending eight conditions for approval, one of which-the
requirement that Kay maintain the property as his primary residence-the District Court found
Minute Order Page 5 of 17
L-9
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
was unreasonable, prompting the City Council to eliminate the requirement that Kay maintain
the property as his primary residence from the conditions. ([D-SSF Nos. 9-11] P-RJN, Exhs. K,
L, N, pg. 8.)
Plaintiff submitted evidence that in August 2014 , it received a complaint regarding the high
number of commercial antenna at the Property . ([D-SSF No. 13] Decl. of Mihranian ,[~7-9, Exh.
A.) Plaintiff submitted evidence that it inspected the Property on August 5, 2014 and determined
additional commercial antenna beyond the Original Antenna Array permitted by CUP 230 had
been installed without permits on the Property and in violation of CUP 230. ([D-SSF No. 14]
Decl. ofMihranian ~11, Exh. A.) Plaintiff submitted evidence that on August 15, 2014, it mailed
Defendant a Notice of Violation Letter ("Notice") stating the Property was out of compliance
with CUP 230 due to the apparent installation of more commercial antenna than permitted and
requested Defendant comply with CUP 230 either by removing structures noncompliant with
CUP 230 or by submitting an application requesting a revision to CUP 230 within 30 days. ([D-
SSF No. 15] Decl. ofMihranian ,[12, Exh. B.) Plaintiff submitted evidence that on September 8,
2014, Defendant requested an extension to comply with the Notice and on September 30, 2014,
Defendant informed Plaintiff that it intended to submit a revision application for CUP 230 and
requested two more weeks for compliance. (USSF No. 16.) Plaintiff submitted evidence that the
Property was inspected three times in October and November and on all occasions no changes
had been ma,de to the additional antenna. ([D-SSF No. 17] Decl. ofMihranian ~14, Exh. A.)
Plaintiff submitted evidence that on October 14, 2014, and then on October 28, 2014, it sent
Defendant a Second Notice and Final Notice of Violation Letter ("Final Notice"). ([D-SSF No .
18] Decl. ofMihranian ~15, Exhs. C, D.) Plaintiff submitted evidence that on December 26,
2014 it received a letter from Defendant objecting to the fee required to amend CUP 230 as a
special tax. ([D-SSF No . 19] Decl. ofMihranian ,[16, Exh. E.)
Plaintiff submitted evidence that almost a year later, on October 21,2015, Plaintiffs City
Attorney's Office ("City Attorney") sent Defendant's counsel a letter requesting the Property be
brought in compliance with CUP 230 or that Defendant submit an application to amend CUP
230. ([D-SSF No. 20] Decl. ofMihranian ,[17(a); Decl. ofLopez ~2, Exh. A.) Plaintiff submitted
evidence that from November 6, 2015 to July 26,2016 the City Attorney and Defendant's
counsel exchanged correspondence regarding Defendant's assertion that the property was
compliant with CUP 230 since modifications had not been made in the past five years and
Defendant's request to modify the existing CUP, as opposed for filing an application for
revision, and Plaintiffs denial of that request, and Plaintiffs instruction that Defendant submit a
proper application to revise the CUP 230 by August 26, 2016, which Plaintiff extended to
Minute Order Page 6 of 17
L-10
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
September 16, 2016 and then October 28, 2016, at Defendant's request. (See D-SSF Nos. 21-27.)
Plaintiff submitted evidence that on October 28, 2016, Defendant submitted the application for
revision ("Application"), that upon review, Plaintiff determined the Application was incomplete,
and that on November 23, 20 16, Plaintiff sent Defendant a letter notifying it of as much and
summarizing the defects that needed to be corrected before the Application could be reviewed,
and that the information curing such defects should be submitted no later than December 21,
2016. ([D-SSF Nos. 27-28] Decl. ofMihranian ~~18-19, Exhs. G, F; P-RJN, Exh. 0.) Plaintiff
submitted evidence that Defendant's counsel objected to the request for additional information
and that no additional information was submitted by Defendant. ([D-SSF No. 29] Decl. of
Mihranian ~20, Decl. of Tucker ~3, Exh. B.)
Plaintiff submitted evidence that from March 21, 2017 through December 13, 2017, Plaintiff and
Defendant corresponded and met regarding: (1) Defendant's position that the Application should
instead be considered an after-the-fact amendment; (2) Plaintiffs position that classifying
Defendant's additional antennae as modifications contravened the binding Counsel Resolutions
that such changes required Counsel approval; (3) Defendant's position that they could replace
the existing antennae with new equipment; and (4) Defendant's position that the antennae could
be moved and an alternative design could be used to address Plaintiffs safety concerns. (SeeD-
SSF Nos. 30-34.) Plaintiff submitted evidence that it gave Defendant an extension to submit
documentation in support of its proposed revised plans for the Application by February 28, 2018;
however, Defendant did not submit additional materia ls to Plaintiff. (See D -SSF Nos. 34-35 .)
Plaintiff submitted evidence that on August 21, 2018, Plaintiffs City Council ("City Council")
held a noticed public hearing to consider the revocation of CUP 230, that Defendant did not
appear or offer a defe nse, and that after consideration of the evidence, the City Council revoked
CUP 230. ([D-SSF Nos. 36, 38] P-RJN, Exhs . P, Q, R, S, T; Decl. ofMihranian ~27, Exh. J.)
Plaintiff submitted evidence that the revocation of CUP 230 makes Defendant ineligible to apply
for an amendment to the CUP, and that Plaintiff accordingly sent Defendant a Cease and D es ist
Letter demanding commercial antenna operations cease at the property on August 29, 2018, with
which Defendant has not complied. ([D-SSF Nos. 39-40] Decl. of Tucker ~7 , Exh. F; Decl. of
Mihranian ,[28, Exh. K.)
Plaintiff submitted evi dence that an inspection of the Property revealed that the five approved
self-supported antenna masts, each with four radiating antenna, approved by CUP 230 remain on
the roof of the Property today, albeit in slightly different locations, and that 11 additional antenna
masts have been added to the roof. ([D-SSF Nos. 41-43] Decl. of Afflerbach ~~2-18.) Plaintiff
Minute Order Page 7 of 17
L-11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge : Honorable Monica Bachner
Judicial Assistant: A . Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56AM
submitted evidence that the 11 additional antenna masts have a different ·function from the 5
original masts in that they provide wireless internet service to provider signals. ([D-SSF No. 44]
Decl. of Afflerbach ~~19-24 .) Plaintiff submitted evidence th at a 4-foot diameter microwave
dish, designed to create communications link between two locations, has been installed since
CUP 230 was issued. ([D-SSF No. 45] Decl. of Afflerbach ~,[10, 23.) Plaintiff submitted
evidence that the additional antennas are not consistent with CUP 230 and that they could not be
considered modifications to the existing masts and antennas allowed by CUP 230. ([D-SSF No.
46] Decl. of Afflerbach ~~10 , 20-2 1.)
Plaintiff's submitted evidence suggests the configuration of the antennas at the property was
violative of CUP 230 and that Defendant's use of the property was therefore unpermitted by a
CUP. Accordingly, Plaintiff's submitted evidence suggests CUP 230's application to the
property with the additional antennae was null and void, since CUP 230 did not permit the use of
such additional antenna . Plaintiff's evidence suggests Defendant violated Plaintiff's Municipal
Code by continuing its u s e of the antennae without having a valid CUP fo r th eir use . Finally,
Plaintiff's evidence suggests Plaintiff provided D efendant with notice that its violation
constituted a public nuisance, and a reasonable opportunity to cure the violation.
Based on the foregoing , Plaintiff met its burden on summary judgment/adjudication. (C.C.P .
§437c(p)(l).) Therefore, the burden shifts to Defendant to create a triable is su e of materi al fact.
D efendant fail ed to meet its burden .
Defendant argues that its installation of antenna in violation of CUP 230 is privileged since such
antenna are federally protected and ex empt from Plaintiff's enforcement pursuant to the
Telecommunications Act of 1996 ("TCA"). (Opposition, p gs. 9-11.) The Court notes that the
TCA, by its terms , does not prohibit a city from regulating p ersonal wireless s ervice fac ilities.
(Reply, p g. 11; See 47 U.S.C. §33 2(c)(7)(A).) However, D efendant asser ts that the its antenna
us e is privileged b ecause th e TCA d oes prev ent local g overnments from unreasonably
discriminating among providers of personal wireless services , and that in declaring Defendant
violated its CUP , Plaintiff w as unreasonably di s criminating against Defendant. (Opposition, pg.
10.) Defendant argues this determination of a violation was di scriminatory b ecause Plaintiff
made it after the alleged lodging of a singl e complaint without determining th e function of the
n ew servic es and b ecau se Plainti ff refused to adequat ely c on sider Defendant 's argument of
fe d eral protection and instead purs u ed enforcemen t agains t Defendant. (Opposi ti on, pg. 10.)
However, as discussed below, De fendant did not submit evid ence suggesting Plaintiff
unreasonably discriminated against Defendant in determining that its additional commercial
Minute Order Page 8 of 17
L-12
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
antennas violated CUP 230.
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
Defendant disputes nearly all of Plaintiffs material facts with the same response, asserting that
"[t]he additional antenna alleged to be in violation were protected under the [TCA] and were
subject to protection due to ongoing negotiation and a pending application for modification of
CUP 230, which was never denied or rejected. [Plaintiffs] 2014 enforcement of the CUP
prohibition against 'any new antenna' on the subject property was improper, discriminatory, and
invalid." (See Defendant's Response to SSF ("R-SSF") Nos. 13-15, 17-20,22-35, 38-40-46.)
Defendant's submitted evidence in support of this response is the following: (1) evidence that
Defendant submitted a proposed revised application to Defendant that was never denied or
rejected (Decl. of Kay ~5); (2) AT &T's Application for CUP modification for its rooftop
antennas (Decl. ofCushman ~2, Defendant's Compendium of Evidence ("D-COE") Exh. 1); (3)
excerpts of testimony from Ara Mihranian as an individual and as the PMK on behalf of Plaintiff
(Decl. of Cushman ~3 , D-COE, Exh. 2 : Mihranian Depo 66, 70-73, 84-87, 94-95, 100-103, 106-
109, 140-142, 144, 146-149, 150-155, 156-157, 160-166, 167-170); (4) the Administrative
Record prepared for the Mandamus Action (Decl. of Cushman ~5, D-COE, Exh. 3, pg. 175-206);
(5) a Notice of Errata reflecting the ruling in the Mandamus Action denying Defendant's writ
cause of action (Decl. of Cushman ~6, D-COE, Exh. 4); (6) Defendant's dismissal ofthe tort
claims in the Mandamus Action to allow for an appeal of the ruling denying Defendant a writ
and Defendant's Notice of Appeal (Decl. of Cushman ~7 , D-COE, Exhs. 5, 6.). However,
Defendant does not explain how this evidence supports its assertion that Plaintiffs determination
that Defendant violated CUP 230 was discriminatory. Moreover, the Court finds Defendant's
evidence does not create a triable issue of fact as to whether Plaintiffs conduct toward
Defendant was arbitrary or discriminatory such that the TCA would bar Plaintiffs right to
regulate personal wireless services.
In support of its assertion that Plaintiffs enforcement has been arbitrary and discriminatory,
D efendant submitted Mihranian's testimony indicating that Plaintiff took 11 years to consider the
conditional use permit of Marymount College due to revisions the applicant requested during the
process and that Marymount College's CUP was not revoked during that process. (D-COE, Exh.
2: Mihranian Depo pgs. 66-69 .) However, this does not demonstrate that Plaintiffs failure to
consider Defendant's revision appli cation was discriminatory given evidence that Defendant's
revision application was incomplete, whereas, Mihranian did not testify as to the completeness of
M arymount's application, where instead, the delay appears to h ave arisen from revisions
Marymount requested during the process that required updating the CUP. Defendant has not
submitted evidence or an explanation as to how the revision applications submitted by
Minute Order Page 9 of 17
L-13
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIP AL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
Marymount and Defendant are comparable such that evidence Plaintiff did not revoke
Marymount's CUP while its application was being processed creates a triable issue of material
fact as to whether Plaintiff acted discriminatorily toward Defendant. Moreover, a comparison of
the time it took Plaintiff to consider the Marymount CUP as opposed to Defendant's does not
demonstrate that Plaintiffs determination that Defendant violated the then existing CUP was
arbitrary or discriminatory. Defendant has submitted no evidence contradicting Plaintiffs
evidence that Defendant submitted its Revis ion Application in October 2016 and that, since that
time, Plaintiff continued to communicate with Defendant in an effort to have Defenda nt properly
supplement its inc omplete application, but that Defendant ultimately failed to do so. Mihranian's
testimony does not create a triable issue of material fact that Plaintiff was discriminatory toward
Defendant in determining it had violated CUP 230.
Similarly, Defendant's evidence that its R evision Application was submitted and never rejected
does not create a triable issue of material fact as whether Plaintiffs determinations were
d iscriminatory against D ef endant. F irst, Plaintiff submitted evidence su g gesting Defendant
submitted an incomplete revision application, and therefore, Plaintiff could not begin revi ew of
the application until it received further documentation from Defendant. Defendant submits no
evidence suggesting its application for a modification to the CUP was complete or that it in fact
sent the documents requested by Plaintiff in order to complete its application. Defendant's
submission of an incomplete applica tion, that Defendant never followed up on to complete, does
not cure D e fendant's actual violations of th e CUP 2 30. (See Reply, p g . 8.) In addition, Plaintiff
h ad no obligation to deny or r eject D efend ant 's inco mplete application, and as such, any
evidence that Plaintiff did not do so does not create a triable issue of material fact as to evidence
suggesting Defendant violated the CUP 230. (See Reply, pg. 9.) Finally, while Defendant argues
it was not given a reasonable opportunity to cure, it submits no evidence creating a tri able issue
of material fact as to whether it was given a reasonable opportunity to cure. (Opposition, pg. 12 .)
The e vidence submitted sug g ests th at sinc e notifying D efendant of its vi olation in Aug ust 201 4,
Plaintiff o ffer ed De fe nda nt r easonable opportunities to cure and/or submit an app licatio n for
revision of its CUP 230; however, Defendant fail ed to do so. (See Reply, pg. 11.)
Defendant also submitted evidence relating to a CUP Modification Application that AT&T
submitted to Plaintiff in February 2011. (Decl. of Cushman ~2 , D-COE , Exh. 1.) It appears
D efendant submits this evidenc e in support of its as sertion that Plaintiffs enforcement of its
munic ip al code aga inst D efendant and Plaintif f s fa ilure to consider D efendant's R evisi on
Application was arbitrary and discriminatory. T he evidence suggests that A T&T submitted an
application for CUP modification that would modify existing AT&T screened rooftop antenna to
M inute Order Page 1 0 of 17
L-14
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
replace four-foot antennae with eight-foot antennae, among other changes. (Decl. of Cushman
~2, D-COE, Exh. 1.) However, the evidence does not indicate whether the application was
complete or whether Plaintiff ultimately granted the application to create a triable issue of fact as
to whether Plaintiffs treatment of Defendant's application was discriminatory or arbitrary. As
presented, the evidence only suggests that AT&T submitted a CUP modification application for a
proposed project that would involve modifying antennae, a process that Plaintiff encouraged
Defendant to proceed with, though Defendant ultimately did not submit a complete application.
Also, the AT&T application involved a proposed project, which differs from Defendant's
application which sought after-the fact approval of a modification. As such, Defendant's
evidence of AT&T' s application does not create a triable issue of material fact. Evidence that
other entities have applied for CUP modifications does not create a triable issue of material fact
as to whether Plaintiff was discriminatory or arbitrary in not considering Defendant's incomplete
application.
Moreover, Defendant's submitted evidence supports Plaintiffs evidence suggesting that
Defendant's operation of its commercial antennae violates the provisions of CUP 230. Defendant
submitted a declaration in which Kay states that since the original CUP 230 was issued, he has
"added antenna to the subject property" and goes on to explain the purposes of the "additional
antenna added" as distinct from the original five antennae. (Decl. of Kay ~~3-4.) Accordingly,
there is no triable issue of material fact that antennae were added to the property in violation of
the provisions of CUP 230 .
Defendant's argument that Plaintiff improperly relies on a theory of nuisance per se is without
merit. (Opposition, pgs . 11-12.) First, Korean American Legal Advocacy Foundation v. City of
Los Angeles (1994) 23 Cal.App.4th 376, 393, fn. 5, is inapposite. Next, a city may designate a
violation of its municipal code as a public nuisance. (See Flahive v. City of Dana Point (1999) 72
Cal. App. 4th 241, 244.) Next, the uncontested evidence is that Plaintiff did not consent to
Defe ndant's operation of the commercial antennae initially nor subsequently, to the extent it
exceeded the scope provided for in the CUP 230. Also, Defendant's assertion that any violation
was cured by an agreement that Defendant would submit an application to modify the CUP 230
is unsupported by any evidence. Finally, Defendant's argument that Plaintiff fails to establish
any specific violation of the RPVMC is without merit. As discussed above, Plaintiff submitted
evidence suggesting Defendant's operations violated provisions of the RPVMC requiring a CUP
for commercial antennae operation.
During the hearing on the motion, Defendant argued that Plaintiffs position that the addition of
Minute Order Page 11 of 17
L-15
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
any antenna constitutes a violation of Code is discriminatory and arbitrary because the FCC and
TCA distinguish between types of antennae and limiting personal wireless services makes
Plaintiffs conduct arbitrary. However, the fact the FCC and TCA distinguish between types of
antennae does not make Plaintiffs enforcement of its municipal code and consequential
regulation of Defendant's personal wireless services arbitrary or discriminatory without some
evidence suggesting that Plaintiffs enforcement action has been arbitrarily or discriminatorily
carried out against Defendant. As discussed above, Plaintiff is entitled to regulate personal
wireless services in a non-discriminatory manner and Defendant has not submitted evidence
suggesting Plaintiffs enforcement has been discriminatory.
The Court notes that during the hearing, Defendant asserted that the Declaration of Bart Fisher
("Fisher") creates a triable issue of fact as to Issue No. 2 because it demonstrates that services
will be affected by the revocation of CUP 230. While the evidence is more fully discussed in the
following section addressing Plaintiffs revocation of the CUP, the Court finds this evidence
does not create a triable issue of material fact as to whether Plaintiffs enforcement of its
municipal code against Defendant was arbitrary or discriminatory for the purposes of Issue No.
1. As discussed below, evidence that certain users may not be able to provide coverage if
Defendant is not permitted to operate its existing antennae does not create a triable issue of
material fact as to whether Plaintiff acted discriminatorily or arbitrarily in determining that
Defendant had violated its CUP.
Defendant also argued at the hearing that evidence Plaintiff did not follow its own custom and
practice by not following up with Defendant prior to revoking the CUP 230 creates a triable issue
of material fact as to whether the revocation was discriminatory and, as such, improper. As this
evidence primarily pertains to Issue No.2, it is fully discussed below. However, to the extent
Defendant suggests it also creates a triable issue of material fact as to Issue No . 1, the Court finds
it does not. Specifically, evidence that Plaintiff did not follow its own custom and practice in not
following up with Defendant's Revision Application is irrel evant to whether Defendant's
operation of its antennae prior to submitting the revision application violated the CUP.
Moreover, as discussed below, the evidence submitted does not actually demonstrate that
Plaintiffs conduct violated its custom and practice. The Court finds Defendant's evidence does
not create a triable issue of material fact as to whether Plaintiff was discriminatory or arbitrary in
determining that Defendant's operation violated its CUP .
Based on the foregoing, Plaintiffs motion for summary judgment is granted. In the alternative,
and for appeal purposes only, Plaintiffs motion for summary adjudication is granted as to the 1st
Minute Order Page 12 of 17
L-16
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
cause of action.
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
Issue No.2: Public Nuisance -Violation ofRPVMC §17.76.020(A) (Operation ofCommercial
Antenna without an Approved CUP) (2nd COA)
Plaintiffs 2nd (public nuisance) cause of action is based upon the theory that Defendant's
operation of commercial antennae without a valid CUP, due to the revocation of CUP 230 by
Plaintiffs City Council, is in violation of Plaintiffs municipal code and constitutes a nuisance
per se.
In addition to the nuisance per se case law and municipal codes referenced above, RPVMC
§ 17.60.100, which governs revocation of a CUP provides that, "[a) [CUP] granted pursuant to
this section may be ... revoked ... pursuant to [RPVMC] §17.86.060." RPVMC §17 .86.060
provides that the City Council, "may, after following the same procedures utilized for approving
such a [CUP], revoke ... [the CUP] if. .. [t)he [CUP) is being or recently has been, exercis ed
contrary to the terms or conditions of such [CUP]. No permit shall be revoked prior to prov iding
a ten calendar day written notice to the holder of the permit and an opportunity to be heard
before the officer or body considering revocation or suspension of the permit[, which in this
case, is the City Council]."
As discussed above, Plaintiff submitted evidence suggesting that, as a result of Defendant's
violation of CUP 230 governing the number and size of commercial antennae located at the
property, Plaintiff held a duly-noticed public hearing to consider the possible revocation of CUP
230 and ultimately voted to revoke CUP 230 in its entirety. (See D-SSF Nos. 3-14, 42-46, 36-
38 .) In addition, Plaintiff submitted evidence that the City Attorney made a written demand that
Defendant cease and desist operation of commercial antennae given Plaintiffs revocation of
CUP 230; however, Defendant has failed and refused to comply with this order. (D-SS F Nos. 39,
40.)
Based on the foregoing, Plaintiff met its burden on summary judgment/adjudication. (C .C.P .
§437c(p)(1).) Therefore, the burden shifts to Defendant to create a triable issue of material fact.
Defendant failed to m eet its burden.
Defendant argu es th at Plaintiffs revocation of CUP 23 0 unreasonably discriminated against
Defendant. (Opposition, pg. 10 .) However, this argument is unsupported by any evidence
suggesting the revocation was carried out in a discriminatory manner against Defendant.
Minute Order Page 13 of 1 7
L-17
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIP AL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
Defendant asserts that the revocation "violates the [TCA] because it has the effect of prohibiting
[Defendant's] provision ofpersonal wireless services." (Opposition, pg. 10 .) However, as
discussed above, a state or local entity is entitled to regulate personal wireless services and not
be in violation of the TCA, so long as such regulation is not done in a discriminatory manner.
Here, as with the 1st cause of action, Defendant has submitted no evidence suggesting Plaintiff's
revocation of CUP 230 was done in a discriminatory manner so as to create a triable issue of
material fact as to whether the CUP was properly revoked, and as such, whether Defendant's
continued operation following the revocation of the CUP amounts to nuisance per se.
Defendant also argues that Plaintiff's revocation of CUP 230 "without following its custom and
practice in further following up with applicants, without a rejection or denial of the CUP, without
a Notice of a Nuisance or other procedure was not only improper but a violation of federal law."
(Opposition, pg. 11.) Accordingly, it appears Defendant argues that Plaintiff's failure to follow
up, failure to deny the CUP revision application, and failure to issue a Notice of Nuisance create
triable issues of fact as to whether Plaintiff's subsequent revocation of the CUP was
discriminatory and/or arbitrary.
Defendant argues that Mihranian's testimony supports its assertion that Plaintiff did not follow
its custom and practice in further following up with Defendant prior to revoking Defendant's
CUP. (Opposition, pg. 6; D-COE, Exh. 2 Mihranian Depo, 34-36 [pg. 70-72 ).) Mihranian
testified that when an application is incomplete, Plaintiff sends the applicant a letter indicating as
much and that, generally, an applicant will thereafter contact Plaintiff as soon as they get the
letter to resolve the issue, but that when an applicant does not do so, Plaintiff issues another letter
to the applicant saying that it has been six months and that there has been no activity on the
project/application at issue, and asks the applicant to let Plaintiff know within 30 days if it still
intends for Plaintiff to process the application. (D-COE, Exh. 2, Mihranian Depo 35:1 -2 5.)
Mihranian testified that when an applicant does not respond to a letter indicating an application's
incompleteness and six months have passed, it is Plaintiff's custom and practice to send a letter
asking the applicant if it is still interested in pursuing its revision and if the applicant does not
respond to that letter, Plaintiff typically res ends another letter. (D-COE, Exh. 2, Mihranian Depo
43:1-1 0.) However, Defendant submitted no evidence suggesting that Plaintiff's conduct in
handling Defendant's R evision Application violated this custom and practice. As discussed
above, Plaintiff submitted evidence that Defendant submitted its Revision Application in October
2 01 6, that Plaintiff notified Defendant of th e app lication's incompleteness in November 2 01 6,
that Defendant's counsel objected to the finding that the application was incomplete and that in
March 2017, Defendant's counsel asserted that the changes to the antennae should be considered
Minute Order Page 14 of 17
L-18
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mask Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20, 2019
11:56 AM
amendments to the CUP as opposed to a full revision. (See D-SSF Nos. 28-30.) Plaintiff
submitted evidence that in April2017, it addressed Defendant's contention and explained why
the changed use of the property required a revision to the CUP as opposed to an amendment.
(See D-SSF No. 31 .) Plaintiff submitted evidence that after meetings and negotiations in 2017,
Defendant agreed to resubmit revised plans for CUP 230 by February 28, 2018 , but that
Defendant did not submit anything by that date, and as such, Plaintiff held a duly noticed City
Council meeting to address CUP 230 on August 21,2018. (See D-SSF Nos. 32-36.) The
evidence suggests that Plaintiff followed its custom and practice by communicating with
Defendant regarding the completeness of the application in November 2017 and thereafter
communicating with Defendant to resolve the issue and obtain Defendant's supplemental
materials so that Defendant's Revision Application would be complete.
To the extent Defendant disputes that Plaintiff did not again contact Defendant after Defendant
failed to submit materials it had asserted it would submit prior to February 2018 before noticing
the August 2018 City Council meeting, this conduct does not actually violate the custom and
practice outlined by Mihranian. At that stage, Plaintiff had already followed up with Defendant
multiple times, which is the custom and practice Mihranian describes. Mihranian does not testify
as to whether it is Plaintiff's custom and practice to follow up after an applicant fails to submit
supplemental information that it asserted it would submit. Accordingly, Defendant's evidence
does not create a triable issue of material fact as to whether Plaintiff's conduct-either not
considering the incomplete Revision Application or proceeding with the decision to revoke the
CUP 230-was discriminatory. The submitted evidence suggests that given Defendant's failure
to submit a complete application, Plaintiffproceeded with enforcement of its municipal code
provisions against Defendant's conduct since it was in violation of its CUP 230, and since such
violation of the CUP 230 entitled Plaintiff to consider revocation of the CUP 230.
Defendant submits no evidence creating a triable issue of material fact as to whether Plaintiff's
revocation of CUP 230 was proper. In addition, Defendant does not dispute Plaintiff's submitted
evidence that Defendant has continued operating its commercial antennae at the subject property .
During the hearing on the motion, Defendant asserted that the Declaration of Fisher creates a
triable issue of fact as to Issue No. 2 because the declaration demonstrates that certain services
will be affected by the revocation of CUP 230. Fisher declared that his business, Fisher Wireless
Services, Inc. provides wireless services to end-user 2-way radio subscribers through
Defendant's facility including security services, ambulance companies, school bus transportation
operations, private patient transportation businesses, and other types of users. (Decl. of Fisher
Minute Order Page 15 of 1 7
L-19
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
~)3.) Fisher declared that if Defendant can no longer provide services, "the public will be harmed
because these users will be significantly disadvantaged and will not be able to provide the
important coverage they need to satisfy their business needs and public safety and public service
needs." (Decl. of Fisher ~3.)
As a preliminary matter, it appears that this evidence is addressing the balancing of public
benefit to public detriment for a standard nuisance cause of action, not a nuisance per se cause of
action. However, the Court does not balance the public benefit in a nuisance per se cause of
action, and as such, this evidence is irrelevant. To the extent Defendant suggests this evidence
creates a triable issue of fact as to whether Plaintiffs revocation of the CUP was discriminatory
or arbitrary, as was suggested in the hearing, the Court finds this is also not the case. A
declaration from Defendant's customer asserting that revoking Defendant's CUP would cause a
decrease in that customer's ability to provide coverage for its own customers does not address
whether or how Plaintiffs revocation (or enforcement of its municipal code) was discriminatory
or arbitrary. Absent any evidence that Plaintiff otherwise has not revoked CUPs held by entities
that provide radio services that benefit the public notwithstanding the CUP holder's violation of
the terms of the CUP, Defendant's evidence that revocation of Defendant's CUP may cause
harm to its customer does not create a triable issue of material fact as to whether Plaintiffs
revocation was discriminatory or arbitrary. The Court finds Fisher's declaration does not create a
triable issue of fact as to whether Plaintiffs revocation of the CUP was improper.
Based on the foregoing, Plaintiffs motion for summary judgment is granted. In the alternative,
and for appeal purposes only, Plaintiffs motion for summary adjudication is granted as to the
2nd cause of action.
Issue No.3: Public Nuisance under Civil Code §3479 (no defense to the cause of action) (3rd
COA)
Plaintiffs 3rd (public nuisance) cause of action is based upon Defendant's alleged violations of
the RPVMC, as described above, which Plaintiff, through its municipal code, determined
constitute a public nuisance per se under Civil Code §3479. In moving for summary
adjudication, Plaintiff argues that Defendant has no defenses to the determination that
Defendant's conduct is a public nuisance under Civil Code §3479. The Court notes that this
cause of action appears to be duplicative of Plaintiffs first and second causes of action, in that,
provided that Plaintiff establishes Defendant's conduct is in violation of one or both of the
referenced code sections, and that Defendant has no defenses, it has established nuisance per se.
Minute Order Page 16 of 17
L-20
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mask Courthouse, Department 71
18STCV03781
CITY OF RANCHO PALOS VERDES, A MNICIPAL
CORPORATION vs INDIAN PEAK PROPERTIES, LLC, A
NEVADA CORPORATION, et al.
Judge: Honorable Monica Bachner
Judicial Assistant: A. Barton
Courtroom Assistant: None
CSR: None
ERM: None
Deputy Sheriff: None
November 20,2019
11:56 AM
As such, it appears that if Plaintiff prevails on either of the first two causes of action, it also
prevails on the instant cause of action.
As discussed above, Plaintiff submitted evidence suggesting Defendant violated various sections
of the RPVMC in operating commercial antennae at the subject property in violation of its CUP
and/or without a CUP. Plaintiff submitted evidence that Defendant continues to operate
commercial antenna in violation of Plaintiff's municipal code making Defendant's conduct a
nuisance per se.
Based on the foregoing, Plaintiff met its burden on summary judgment/adjudication. Therefore,
the burden shifts to Defendant to create a triable issue of material fact. Defendant failed to meet
its burden.
As discussed above, Defendant did not submit evidence creating a triable issue of material fact as
to whether its conduct did not violate Plaintiff's municipal code sections that require a valid CUP
for commercial antennae operation. Moreover, Defendant did not submit evidence suggesting it
can assert any defenses to Plaintiff's finding that Defendant's conduct constituted a public
nmsance.
Based on the foregoing, Plaintiff's motion for summary judgment is granted. In the alternative,
and for appeal purposes only, Plaintiff's motion for summary adjudication is granted as to the
3rd cause of action.
The Clerk is to give notice.
The Court's written Ruling on Submitted Matter is signed and filed this date.
Certificate of Mailing is attached.
Minute Order Page 17 of 17
L-21
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this action. I am employed
in the County of Los Angeles, State of California. My business address is 2361 Rosecrans Ave., Suite
475, El Segundo, CA 90245.
On November 22, 2019, I served true copies of the following document(s) described as
[PROPOSED] JUDGMENT on the interested parties in this action as follows:
Barry A. Bradley
Dawn Cushman
Clay R. Wilkinson
BRADLEY & GMELICH, LLP
700 N. Brand Boulevard, 1Oth Floor
Glendale, CA 91203-1202
Telephone: (818) 243-5200
Facsimile: (818) 243-5266
Email: bbradley@bglawyers.com
dcushman@bglawyers.com
Attorneys for Defendants
INDIAN PEAK PROPERTIES, LLC,
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document( s) to
be sent from e-mail address lmadrid@awattorneys.com to the persons at the e-mail addresses listed in
the Service List. I did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on November 22, 2019, at El Segundo, California.
DIANE BRANCHE'-"""'" -=
01203.0035/617024.1 -3-
[PROPOSED] JUDGMENT
M-1
NOTICE AND ORDER TO ABATE A PUBLIC NUISANCE
TO THE OWNER, AGENT OF THE OWNER, LESSEE,
OCCUPANT, OR PERSON IN POSSESSION OF
THE PROPERTY HEREINAFTER DESCRIBED:
26708 INDIAN PEAK ROAD, RANCHO PALOS VERDES, CA
YOUR ATTENTION IS HEREBY DIRECTED to the provisions of Chapter 8.24 of
Title 8 of the Municipal Code of the City of Rancho Palos Verdes, California on file in the
office of the City Clerk in City Hall.
Pursuant to provisions of said Chapter, and the November 20, 2019 ruling of the
Superior Court (LASC Case No. 18STCV03781 ), you are hereby notified that the
installation and/or operation of a commercial antenna without the submittal and approval of
a conditional use permit by the Rancho Palos Verdes Planning Commission, constitutes a
prohibited activity and unlawful conduct pursuant to Rancho Palos Verdes Municipal Code
Section 17.76. 020, a copy of which is attached hereto.
You are further notified that pursuant to Rancho Palos Verdes Municipal Code
Sections 1.08.01 O(D) and 8.24.070, the Code Enforcement Officer has inspected, or
caused inspection of the subject property as of November 21, 2019 and has determined
that the above-referenced unlawful condition existing thereon constitutes a public nuisance.
You are further notified and ordered to abate the above specified condition by taking
the following actions(s):
1. Remove all roof-mounted commercial antenna from the property.
2. Once all corrective actions are taken and complete, contact Officer
Rudy Monroy, at 310.544.5296 to schedule a final inspection of the property.
Such action must be completed within fifteen (15) days from the date of your
receipt of this notice and order, and thereafter you must maintain said property free of any
of the unlawful conditions described above.
In the event you fail to complete such work within the time herein mentioned, the
undersigned shall cause the appropriate abatement action to be taken and completed, and
the charges therefor will be a lien upon the said property.
You are advised that any person holding record title or having any interest in the
property may appeal from this notice and order, or any determination of the Code
01203.0035/617894.1
M-2
Notice and Order to Abate a Public Nuisance
26708 Indian Peak Road
November 27, 2019
Enforcement Officer, to the City Council within ten (10) days from the date of service of
this notice and order. Written notice of such appeal must be filed in the office of the City
Clerk at the Rancho Palos Verdes City Hall located at 30940 Hawthorne Boulevard,
Rancho Palos Verdes, 90275. If no appeal is filed within the time prescribed, the
determination of the Code Enforcement Officer shall be final.
You are further advised that this notice and order may be recorded against the
property in the Office of the County Recorder.
This notice applies to the property situated in the City of Rancho Palos Verdes, Los
Angeles County, California, on premises described as Lot 80, Assessor Parcel Number
7577-013-030 and commonly known as 26708 Indian Peak Road, Rancho Palos Verdes,
California.
Dated at Rancho Palos Verdes, California, this 271h day of November, 2019.
Rudy Monroy =::::::::::::::
Code Enforcement Officer,
City of Rancho Palos Verdes, California
01203.0035/617894.1
N-1
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N-2
11-27-2019 08:09:21 AM GPS X= 33.782684 Y= -118.3 74856
l
NOTICE AND ORDER ·ro ABA ·r e A PUBLIC' NUISA NCE
TO THE OWNER. AGE;NT O I THE OWNER, U:S, "•
OCCUPANT, Oil PERSON IN POSSESSION 0~
THE PR OPERTY HERI;INAJ'll:R OESC~IBEO:
26708 INDIAN PEAK ROAD, RANCHO PAlOS VERDES, CA
YOUR A TIENTION IS HEREBY OIR£CTEO to lhC ptOYliJont Of~ 8:24 ~
Tille 8 of 1M Munocopal Code Of i!le 01;' ol Ranctoo Pelot Ven!M Cel!fam!a en lllo ., 1M
OlfiQt Ol IM CJty Clet1t In City tU'1
~nt to~ of-~. and the Nove::lbef 20, 2ll19 Nk1g of lh8
Suporiof coun 1.\ASC c-No 18STCV0378tl. you -henll:'t no!:lOCI 1 1110
lrl$~'1a•lonand!or apcmiCn c;t aco.rtedal .,._Wihoul V. sutmbl and ~o!
a cond ional URI panrJt bV tho~ Palo5 V-Planning Canma~iCifl coust::.:rrs a
ptOhlil!!xl C:\-!t)' 111111 urbwNI Cl)ftl!uol ~~to~ Palos Veta~ Ccxle
SectiOII 17 78 020 • ct:IPY o! whict\ Is 8ltaChed t>ereiO
You ¥0 lurlh« IIV.dled llml pu1'Sll8l1t ID Rencho Palos V~ t.t.Jnlc:ipal Code
(iediQM \.OS010(0 11!111'82 4070 llle Code Enfuooemenl Olllcef NISin$plldeld 0!
ca•PHO tnspec!JDn o! IIW tiUD1ed propeny as of NIMml>ef 21 . 20191nd liP <I~
tn;l\ tho~ unla\NfUI condlbane.,smg tii!KeOnconst:utos • putJilc nul5anca
Yau 1t111 1\111Mf noufledand onllm!d 10 ,....me 8b0vetl*lifoed cood•bon bV tak;ng
tllll foloo'llny aetloMI11)
I
2
Remove aU roof-mounted~~ antenna [rom tho proporty
once all cqrreCiive adiOn•are 18ken and complete c:o11111el Officer
Rudy Monroy, at 3 i1Hi44 52:08 10 scheduleo li11al lntpectlon or lh!l propOIIy
I
•
N011c• .uld Order to Abato • Pullllo Nul1anoa
26708 Indian Pt1k Rll8d
Nowmbor 71, 2019
En!on:er!lont 01llcl. ,10 the City Counal.,fth111 ~~~ j10) de~• fu:wn !lid d4la d aDillaa d
1111S 110&» and Old« Wnl!lm mt1ee ol.uch app80Jj rnll!ll be rofold In I'PI olllle Crty
Cleric Ill 11>e Rallct>o Pa.toe VOIISet Olry 1-U~ locl:itod II 30e<IO Htlllll1anl* BouliNII'II
Rancho PaiOIS Ve~CMs 9027:; If no IIJ'O!I'II • fl:('ld w thin 111e tme tt..
del5mtnall0n d the Ccxle Enforcernelll Otrlol!t that ba
You ..e tunNt alMIIed 11=1 liD ncti«< .rid Older INfJ ba lt!OJitllid egutlll/le
piQpe(ty ., 11>e Ol!lce Ill tne Ccun17 Recon!c:
Thilnabcuppliaa to !he propettf ki!M C4:y of R.lncllo P \"eela Laa
AF'9"Jes ~ CaUan:ta an dwcitloclu l.DI &0 Pai'td 1t:mtcr
1577-C13-C30 _, comn>Oflly kiii:Mift • 207051na P.-Rl>IJ(I IWrliD Pam v...se..
ca<;1oma
---·
N-3
--
11-27-2019 08:09:26 AM GPS X= 33.782684 Y= -118.374901
-,
•
• l
N C E A ORDER TO ABATE A PUBLIC NUISANCE
TO THE ~· ER, AGENT OF THE OWNER, LESSEE,
O ~CU PANT, OR PERSON IN POSSESSION OF
I I
0 ROPERTY HEREINAF TE R DESCRIBED :
26 cs I N PEAK ROAD, RANCHO PALOS VERDES, C A
YOUR A TIENTIO t
T itl e 8 of th e Mu ni ci p al -
offi ce of t he City r •
r EBY DIRECTED to the provisions of Chapter 8.24 of
13 City of Rancho Palos Verdes. Cahfomia on file in the
~all.
Pursuant to fJ .J 11 sio ns of sa id Chapter, and the November 20, 20 19 ruling of the
S upeno r Court (LASC Case No. 18STCV03781 ), you are hereby notified that the
Inst allat ion and /or operation of a commercial antenna without the submitta l and approval of
a conditiona l use pennit by the Rancho Palos Verdes Plann ing Commiss ion, co nstitutes a
proh ibt ted activity and un lawful conduct pursuant to Rancho Pa los Verdes Mu nicipal Code
Section 17.76 .020, a copy of wh ich ts attached hereto .
You are further notified that pursuant to Rancho Palos Verdes Mu nicipal Code
Sections 1 08 .0 10(0 ) and 8 24 .070 . the Code Enforcement Officer has inspected, or
ca used i nspection of the subject property as of November 21 , 2019 and has determ ined
that t he above-referenced unlawful condition existing thereon constitutes a public nuisance
Yo u are further notified and ordered to abate the above specified condition by taking
th e followtng actJons(s):
1. Remo\le all roof-mounted commercial antenna from the property,
2 . Once all cerrective actions are taken and complete, contact Officer
Rudy Monroy, at 310 544 5296 to schedule a final inspectJOnoftheproperty
Such action must be completed within fifteen (15) days from the date of your
recet pt of this notice and orde r, and thereafter you must maintain said property free of any
of t he un lawful cond itions desc ri bed above .
In the event you fa il to complete such work within the time herem mentioned, lhe
undersig ned shall cause the appropriate abatement action to be taken and completed and
the ch arges therefor will be a hen upon the said property
You are advi sed that any person holding record titJe or having any mterest in the
property m ay appeal from th 1s notice and order, or any determination of the Code
N-4
•
l
Notice and Order to Abate a Public Nuisance
26708 Indian Peak Road
November 27,2019
En •ment Officer, to the City Council within ten {10) days from the date of service of
ce ,nd (' der Written notice of such appeal must be filed in the office of the City
1 the a ncho Palos Verdes C1ty Hall located at 30940 Hawthorne Boulevard ,
' Ve rdes, 90275 . If no appeal is filed within the t1me prescribed , the
ne Code Enforcement Officer shall be final.
re further advised that this notice and order may be recorded against the
property 111 th e Office of the County Recorder .
This notice applies to the property situated in the City of Rancho Palos Verdes. Los
Angeles Co unty. California, on prem ises described as Lot 80 , Assessor Parcel Number
7577-013-030 and commonly kn o\,l;n as 267081ndian Peak Road, Rancho Palos Verdes
Califorma .
Dated at Rancho Palos Verdes . California, this 271" day of November. 2019 .
Rudy Monroy
Code Enforcement Officer ,
City of Rancho Palos Verdes , California
CrN
0120300~17894 1
RUDY MONROY
CMf l .. <:llltt rf(lfllall
•
O-1
BRADLEY GMELICH
www.bglawyers.com
Via Hand Delivery
City Clerk
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
Lawyers
December 6, 2019
dcushman@bglawyers.com
RECEIVED
DEC 0 6 2019
COMMUNITY DEVELOPMENT
DEPARTMENT
Re: City o(Rancho Palos Verdes v. Indian Peak Properties, LLC, et al.
Our Client: Indian Peak Properties, LLC
Our File No.: 432-04859
Dear Sir or Madam:
NOTICE OF APPEAL
We represent Indian Peak Properties, LLC, the entity holding record title of the property
located at 26708 Indian Peak Road, Rancho Palos Verdes, California. This letter constitutes the
written Notice of Appeal by Indian Peak Properties, LLC, pursuant to the provisions of Rancho
Palos Verdes Municipal Code, section 8.24.080, subdivision D, from the Notice and Order To
Abate A Public Nuisance, served on or about November 27, 2019.
It appears that the City of Rancho Palos Verdes is continuing in its efforts to attempt to
prohibit a wireless carrier from providing telecommunication services in violation of state and
federal laws and in an arbitrary and capricious manner.
1. Background Summary.
A. The Original CUP No. 230.
The City Council approved Conditional Use Permit (CUP) No. 230 via Resolutions No.
2004-109 and 2005-75 in December 2004 and July 2005, respectively, approving the use of five
roof mounted antennae support pole masts, with four antennae on each support pole mast, at the
subject property.
B. The November 2014 Notice Of Violation.
On November 28, 2014, the City issued a Notice of Violation ordering the removal of all
but five vertical antennae from the roof, and requiring that the remaining five vertical roof
antennae comply with the Council-adopted conditions of the original CUP No. 230. The City
also informed the Indian Peak that an after-the-fact revision of its CUP would be required in
order for the City to consider allowing the unpermitted antennae to remain.
700 N. Brand Boulevard, 10th Floor
Glendale, California 91203
P: (818) 243-5200
F: (818) 243-5266
O-2
BRADLEY GMELICH City Clerk
Re: Citv o[Rancho Palos Verdes v. Indian Peak Properties, LLC, et at.
December 6, 2019
Lawyers
Page 2
After extensive negotiations between the City's attorneys and Indian Peak's attorneys,
which are not detailed here, on April25, 2016, the City Attorney's office stated that the City
would not approve any after-the-fact additions to the roof-mounted antennae and support pole
masts beyond those authorized by the Council in the original CUP. On July 26, 2016, the City
directed Indian Peak to submit the standard application for a Revision to an Existing Conditional
Use Permit, as well as the information required by RPVMC Section 17.76.020(A)(12)(b), with
the exception of the frequency compatibility study (which the City determined was not
necessary).
C. The Revision Application For Modification Of CUP No. 230.
On October 28, 2016, Indian Peak complied with the City's request. As requested, Indian
Peak paid the agreed-upon fee and filed an Application for Revision to an Existing Conditional
Use Permit, as well as the information required by RPVMC section 17.76.020(A)(12)(b), with
the exception of the frequency compatibility study, which is: (1) an approved engineering study
addressing structural and power compatibility with the existing tower and antennas, and (2) a list
of all proposed suppmi equipment and anticipated maintenance needs.
Nonetheless, following the requested submission, the city presented unreasonable and
unwarranted demands for additional information. On November 23, 2016, City Planner, Leza
Mikhail, claimed that Indian Peak's Revision Application was incomplete and requested that
"additional" information not required by the applicable code section be produced. The April 14,
2017 demand letter was is in direct conflict with the City's July 26, 2016 instructions for Indian
Peak to submit "information required by RPVMC section 17.76.020(A)(12)(b), with the
exception of the frequency compatibility study."
D. Further Negotiations.
Over the course of an additional extended period of time, from about 2016 to 2018, the
City and Indian Peak attempted to negotiate a resolution of their disputes.
In 2017, the City incorrectly stated that CUP No. 230 "approved the use of five (5) roof-
mounted antennae support pole masts, with four ( 4) antennae on each support pole mast, at the
subject property." The City's April 14, 2017 letter admitted that Indian Peak could add new
antenna "to an existing tower" which could be Director-approved under RPVMC Section
17.76.020(A)(12)(b). That same letter then incorrectly noted that Indian Peak added "additional
towers and the modifications are substantial compared to what was approved under CUP 230."
This is incorrect and misstates CUP No. 230. There are and were no new towers added at
the property at any time and this represents a fundamental misunderstanding on the part of the
City. CUP No. 230 allowed five (5) vertical antenna masts, which are necessary parts of a
functioning antenna.
O-3
City Clerk BRADLEY GMELICH
Re: City o{Rancho Palos Verdes v. Indian Peak Properties, LLC, et at.
December 6, 2019
Page 3
Lawyers
On April14, 2018, the City indicated that this matter was capable ofresolution by City
staff and the property owner and thus an imminent threat of litigation did not exist. Indian Peak
responded with its position that Indian Peak complied with the July 26, 2016 instructions, and
satisfied all the requirements of the appropriate Rancho Palos Verdes Municipal Code (RPVMC)
sections for a Conditional Use Permit application.
Indian Peak maintained for years that all it was seeking to do was to add new antennas to
an existing tower (which is actually the house itself), and, therefore it was subject only to Section
17.76.020(A)(12)(b). Previously the City recognized that Indian Peak's CUP Revision
Application was for a modification of existing commercial antenna, and that 17.76.020(A)(12)(b)
was the applicable section. The City agreed that the Revision application was not an application
for a new installation of commercial antennas.
The City acted arbitrarily and capriciously by retracting from its agreement and asserting
that vertical antenna masts, or elements on those masts, are prohibited "additional towers." There
is only one tower (which is actually the house itself), and one horizontal cross-arm support
structure to which the vertical antenna masts, are attached. The action by the City was arbitrary
and capricious in failing to allow Indian Peak to proceed as originally instructed, under
17.76.020(A)(12)(b).
Thereafter, without repeating the full exchange of correspondence that occurred, suffice it
to say that negotiations then went silent.
E. The Arbitrary And Capricious Revocation Of CUP No. 230.
On August 2, 2018, without any further effort to reconcile the pending Notice of
Violation with Indian Peak's counsel of record, without any further effort on the part ofthe City
to process Indian Peak's Revision Application, the City issued a Notice for "Revocation Of
Conditional Use Permit No. 230." Nineteen days later, on August 21, 2018, the City conducted
its hearing over Indian Peak's objection.
Indian Peak appeared at the hearing through its new counsel -a law firm hired just days
before the hearing -and submitted written correspondence, documentation and requested a 60-
day continuance of the hearing. The documentation presented preliminary renderings of
potential solutions to the City's concerns and advised the City oflndian Peak's retention of a
civil engineer to prepare additional information. Members of the City Council recognized the
fact that Plaintiffs counsel had just become familiar with the project-an admittedly "daunting
task."
Thereafter, however, the City completely ignored Indian Peak's request for a continuance
and voted to revoke CUP 230, without allowing Indian Peak to mount a defense, in violation of
Indian Peak's right to due process.
O-4
''i:
City Clerk BRADLEY . GMELICH
Lawyers
Re:. City o(Ranclw Palos Verdes v. Indian Peak Properties, LLC, et at.
December 6, 2019
Page 4
2. The Two Lawsuits.
Following the Revocation, on or about November 5, 2018, the City of Rancho Palos
Verdes filed a lawsuit seeking to declare the Indian Peak property a nuisance (the "Nuisance
Lawsuit"). On or about November 19,2018, Indian Peak filed its lawsuit (the "Mandamus
Action") challenging the decision of Rancho Palos Verdes to revoke Indian Peak's Conditional
Use Permit No. 230.
Both of those actions are still pending and are not "final."
INDIAN PEAK'S OBJECTIONS TO NOTICE AND ORDER TO ABATE
A. Indian Peak's Judicial Challenges Raised In The Mandamus Action Are
Ongoing And Are Subject To Or Will Be Subject To A Stay. Therefore, The
City's Notice And Order To Abate Is Improper.
In the Mandamus Action, Indian Peak has challenged the City's Revocation of CUP No.
23 0 on the grounds, among others, that Indian Peak was denied due process and that the
revocation is improper, arbitrary and capricious. On August 9, 2019, the Court in Indian Peak's
Mandamus Action issued an Order denying Indian Peak's Petition. On October 9, 2019, Indian
Peak voluntarily dismissed the third, fourth and fifth causes of action in the Mandamus Action.
As a consequence, the August 9, 2019 Order became an appealable order. A timely Notice of
Appeal from the August 9, 2019 Order denying the Petition was filed by Indian Peak in the
Mandamus Action on October 11,2019.
Apparently, the City concluded that a "Judgment" was necessary, despite judicial
decisions to the contrary. Indian Peak contends the City's Proposed Judgment is not necessary
and that an appeal is already perfected by Indian Peak. Regardless, as oftoday's date, the
Proposed Judgment has not been signed or entered by the Court in the Mandamus Action. Once
the Judgment has been signed and entered, Indian Peak will file a second notice of appeal, in an
abundance of caution.
As a consequence of the timely filing of an appeal from the Mandamus Action Order, and
the soon-to-be-filed second Notice of Appeal, there is no final resolution of the Mandamus
Action. Therefore, Indian Peak continues to challenge the City's improper and arbitrary
Revocation of CUP No. 230. The perfecting ofthe appeal in the Mandamus Action operates as
an automatic stay of any enforcement of the trial court's decision. Pursuant to Code of Civil
Procedure, section 916, subdivision (a), " ... the perfecting of an appeal stays proceedings in the
trial court upon the judgment or order appealed from or upon the matters embraced therein or
affected thereby, including enforcement ofthejudgment or order. ... "
O-5
City Clerk BRADLEY GMELICH
Lawyers
Re: City o(Rancho Palos Verdes v. Indian Peak Properties, LLC. et at.
December 6, 2019
Page 5
Any action by the City to proceed with the "abatement" (i.e., through its issuance of its
November 27, 2019 Notice and Order To Abate) is in violation ofthe automatic stay and is in
violation of the law. It is therefore also arbitrary and capricious.
B. The Trial Court's November 20, 2019 Order In The Nuisance Lawsuit Is Not
A Final, Appealable Order And Is Subject To A Stay. Therefore, The City's
Notice And Order To Abate Is Equally Improper And In Violation Of The
Law.
In the Nuisance Action, on November 14,2019, Indian Peak sought an Ex Parte stay of
the Nuisance Action pending the outcome of the appeal in the Indian Peak case. The City's
Attorney was present at the hearing. The trial court denied the Ex Parte Application and invited
Indian Peak to await the ruling on the pending summary judgment motion. The trial comi then
issued its Order granting summary judgment on November 20, 2019.
As Indian Peak anticipated, and in derogation oflndian Peak's November 14, 2019 Ex
Parte Application, the City of Rancho Palos Verdes chose to issue its November 27, 2019 Notice
and Order To Abate, before the entry of any judgment in the Nuisance Action. Hence, Indian
Peak has no alternative but to seek court intervention again and request an Ex Parte Application
for a stay in the Nuisance Action.
Indian Peak is in the process of determining the propriety of challenging the November
20, 2019 Order and any subsequently entered Judgment in the Nuisance. Therefore, Indian Peak
has no alternative but to assert additional grounds for the renewal of its Ex Parte Application for
a Stay in order to prevent the City's attempt to enforce the November 20,2019 Order.
As a consequence of the foregoing, there is no final resolution of this Nuisance Action.
Indian Peak continues to challenge the City's Revocation of CUP No. 230 and to challenge the
City's claim of a nuisance. Pending final resolution of both the Nuisance Action and the
Mandamus Action, the City's November 27,2019 Notice and Order To Abate is premature and
in violation of the law.
Pursuant to Code of Civil Procedure, section918, subdivision (a)," ... the trial court may
stay the enforcement of any judgment or order." The City is well aware oflndian Peak's
repeated requests for a stay in this case and yet issued the subject Notice regardless. Again, as
with virtually every action taken in these administrative proceedings, the City demonstrates by
its conduct that it bears actual ill will and animus against Indian Peak and James Kay.
Any action by the City to proceed with the "abatement" is in violation of section 918 and
in violation of the law. It is therefore arbitrary and capricious.
Furthermore, the continued actions by the City, seeking to remove the antenna at the
subject proper and to take the Indian Peak property without paying just compensation,
O-6
City Clerk BRADLEY & GMEUCH LLP
Re: City o(Rancho Palos Verdes v. Indian Peak Properties, LLC, et at.
December 6, 2019
Lawyers
Page 6
particularly in the face of ongoing liti gation with no final judgment, is an actionable violation of
the Fifth Amendment of the United States Constitution.
CONCLUSION
On the basis of the foregoing, Indian Peak Properties, LLC requests that the City's Notice
And Order To Abate A Public Nuisance be withdrawn by the City. In the alternative, Indian
Peak Properties, LLC requests that the City stay its enforcement action and cease its efforts to
proceed with the Notice and Order To Abate until after the Mandamus Action and the Nuisance
Action are final and a ll remedies available to Indian Peak are exhausted . Alternatively, Indian
Peak requests that the City Council proceed with an appropriate appeal hearing in accordance
with Rancho Palos Verdes Municipal Code, section 8.24 .080.
Very truly yours,
Dawn Cushman
Cetiified Specialist, Appellate Law
DCC/dc
O-7
Invoice to:
Invoice Date: 12/6/2019
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes,CA 90275
Record# Record Type Fee Group Fee Description
CUP 230 CONDITIONAL USE PERMIT
BRADLEY & GMELICH LLP
COST•ACCOUNT
700 N. BRAND BLVD. lOTH FLOOR
GLENDALE, CA 91203
PH. (818) 243-5200
APPEAL
cffibank"
CITIBANK, N.A.
90-7172/3222
Quantity
0
PAY TO THE
ORDEROF _____ C_itLy_o_f_R_a_nc_h_o~P~al~o~s~V~e~~~e~s~-----------------------------------------
INVOICE#
INV-8348
Amount
$2,275.00
$2,275.00
12/6/2019
$ **2,275.00
Two Thousand Two Hundred Seventy-Five and 00/1 00****************************************************************** --------~------~--~~~~~~~~~~~~---------------------------------------------DOLLARS ~
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
MEMO
-Rancho Palos Verdes
Please send your payment to this address:
Printed: Friday, December 06, 2019 4:04PM
City of Rancho Palos Verdes
Finance Dept.
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
1 of 1
~
ttl?; ,$?
tD; 6J
@, :~
PROPOSAL
City of Rancho Palos Verdes PROPOSAL DATE: 12-2-19
PROPOSAL #: 19-01
P.O.#:
TERM DAYS: NET 30 DAYS
ATTENTION: Rudy Monroy
SITE: 26708 Indian Peak Rd, Rancho Palos Verdes
DESCRIPTION: Antenna Removal
TTS proposal includes the following services:
1.Remove Antennas, mounts and transmission lines from rooftop.
2.Not removing any indoor radio equipment, assume all transmistion lines go to an indoor radio
room.
3.Patch holes in roof from mounts with mastic.
4.No roof warranty included.
5.If additional roof work is requested/required cost TBD.
6.Assuming all antennas are not active and notification has been sent out to the different carriers on
the rooftop.
TOTAL AMOUNT OF PROPOSAL: $9,750.00
P-1