Zubarau

I concur in all of my colleagues’ analysis except for the conclusion that Palmdale Zoning Ordinance section 95.03B.1 (section 95.03B.1) is unconstitutionally vague. Section 95.03B.1 states: “Maximum height of the antennae shall not exceed seventy-five (75) feet measured from the grade to the highest point of the antenna. Maximum height of the active element of the antenna array shall be thirty (30) feet or less except as otherwise regulated by FAA or FCC.” I agree with defendant, City of Palmdale, that the 30-foot height limit for the active element of the antenna specified in section 95.03B.1 is not constitutionally uncertain.

There are several core principles that affect a determination a statute is unconstitutionally vague. First, section 95.03B.1 is presumed to be constitutional and it must be upheld unless its unconstitutionality clearly appears. (Walker v. Superior Court (1988) 47 Cal.3d 112, 143 [ 253 Cal.Rptr. 1 , 763 P.2d 852 ]; Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [ 171 P.2d 21 ].) Second, the challenged ordinance must be viewed in the specific context in which the issue arises and the challenged language is used. (People ex rel. Gallo v.…

*294 Opinion

INTRODUCTION

Plaintiff Alec Zubarau, an amateur or “ham” radio operator, brought an action against the City of Palmdale 1 challenging the City’s order to have him remove a tower antenna from his residential backyard and a roof-mounted antenna from his residential roof. He contends that the City’s ordinance regulating the height of antennae in a residential area is preempted by state and federal law and that the ordinance is unconstitutionally vague.

We hold that Zubarau has standing and that the issues are ripe. We further hold that the City’s order to remove the tower antenna is supported by substantial evidence and is in compliance with state and federal laws in that it does not constitute an undue interference with amateur radio communications permitted by state and federal law. But to the extent the ordinance purports to regulate radio frequency interference, such regulation is preempted by federal law. In addition, the challenged ordinance is unenforceable in part because of apparent inconsistent height limitations that render it unconstitutionally vague. We affirm the trial court’s denial of attorney fees to Zubarau on his first cause of action because he is…