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Boy Genius Wonder Web Site? OK |
S4WT Responses |
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Jan 14, 2020 Appellant Presentation Opposing Verizon Candle Crest Wireless Telecommunications Facility |
Jan 14, 2020 Public Comments in Support of the Appeal |
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Proof of No Significant Gap in Verizon Coverage
Work completed on Dec 15, 2019 in the North Ranch Neighborhood, Thousand Oaks, CA
On Decemember 18, 2019, we successfully placed calls on Verizon’s Voice Frequencies, proving that there is No Significant Gap in Verizon Wireless Telecommunications Coverage in the North Ranch neighborhood that would be served by the Verizon Wireless Antenna Farm proposed for Candle Crest, near Sunnyhill Rd.
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Successful Verizon Wireless Calls on December 18, 2019 — Session One |
Successful Verizon Wireless Calls on December 18, 2019 — Session Two |
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No Significant Gap in Verizon Telecommunications Coverage in Thousand Oaks, CA, December 18, 2019
Proof of No Significant Gap in Verizon Telecommunications Coverage in in the North Ranch neighborhood of Thousand Oaks, CA which proves there is no need for the proposed Verizon Macro Tower Antenna Farm Wireless Telecommunications Facilities (WTFs) at the CA Water Services Co. water tank site called Candle Crest.
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North Ranch Locations |
Slide Show of Calls Successfully Place on Verizon Voice Frequencies — with phone’s Cellular Data Antennas Turned Off |
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The Worst Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) Factory Proposed for a Residential Zone in California
This attempted taking of property, residential character and aesthetic values of our lovely neighborhood is courtesy of Verizon Wireless
Aug 26, 2019 Planning Commission Meeting
Aug 26, 2019 Thousand Oaks Planning Commission: Agenda Item 7.B Verizon Wireless Telecommunications Facility (WTF)
Despite what the City Planner alleges, there is on such thing as a Wireless Communications Facility; the definition in the law is a Wireless Telecommunications Facility — see citation_xxx.
Letter to City of Thousand Oaks City Council
Gregory H. Tchejeyan, MD
4571 Sunnyhill Street
Thousand Oaks, CA 91362
h: 805.497.6351 | m: 805.3407293
January 13, 2020
To: Thousand Oaks City Council Members
Mayor, Al Adam aadam@toaks.org | (805) 449-2102
Mayor Pro Tem, Claudia Bill-de la Peña claudia4slowgrowth@roadrunner.com | (805) 449-2103
Councilmember Rob McCoy mccoy@toaks.org | (805) 449-2104
Councilmember Bob Englear bengler@toaks.org | (805) 449-2105
Councilmember Ed Jones ejones@toaks.org | (805) 449-2101
Thousand Oaks City Hall
2100 Thousand Oaks Blvd.
Thousand Oaks, CA 91362
Dear City Council Members,
My name is Dr. Greg Tchejeyan, MD I have lived on Sunnyhill Street in North Ranch, for the last 15 years. My family’s home is directly across the street from the California Water Services Company in-ground water tank. My home is just 180 feet from the four north-facing, six-foot high Macro Cell Tower Antennas of the Candle Crest Wireless Telecommunications Facilities (WTF) project proposed by an indeterminate applicant going under the name “Verizon”.
As you may be already be aware, this area of North Ranch boasts spectacular views of the Santa Monica Mountains to the South and North Ranch Valley and North Ranch Open Space to the North. These views are what make these properties very special. When the area was developed by Prudential, the company took great care to preserve the views and ridgelines.
Please refer to the following drone video — https://youtu.be/wuWN8jgB5A4 — for an aerial view of the site. The proposed site is lot number 61 of tract 2778. The site is owned by the California Water Services Company and falls under the CC&Rs of the Westlake North Property Owners Association (WNPOA).. The water reservoir itself is subterranean, surrounded by an eight (8)-foot wrought-iron perimeter fence approximately 100-feet in diameter. The elevation of the lot is around 1,503 feet above sea level and Sunnyhill Street to the east and north is at 1,485 feet. Therefore, the bottom of the perimeter fence is about 22 feet above street level (link to Verizon plan).
Fiduciary Duties Breached by the WNPOA
As mentioned, lot 61 of tract 2778 falls under the supervision of WNPOA and its CC&Rs. Under Article IV, Section 4.01D it specifically states:
"No antenna for transmission or reception of television signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors, whether attached to a building or structure or freestanding."
Article IV, Section 4.01D was amended on January 19, 1998 to read:
"No television or radio poles, antennas, flagpoles, clotheslines, basketball standards, or other external fixtures except those approved by the Architectural Committee shall be constructed, erected or maintained on any lot, except as permitted by law."
The City Councilmembers should know that we believe that WNPOA has violated its fiduciary duties, among them, to inform its members that "Verizon" had requested to install antennas on lot 61 of tract 2778. No homeowner was notified by mail, fax or email of the agenda item about the antenna installation. In addition, the minutes of the January 11, 2018 members meeting did not reflect any decision regarding the proposed "Verizon" antenna installation. When asked to produce the meeting minutes, the Board produced minutes that were “corrected" — altered — seventeen (17) months after the fact.
Currently, our attorney is negotiating with the WNPOA attorney to resolve this matter. We are asking that WNPOA to retract its position due to breach of fiduciary duties. When the WNPOA President, Cathy Schutz, spoke at the planning commission meeting in support of the project she stated “no one opposed it” so the WNPOA “endorsed” it. None of the homeowners were granted the opportunity to oppose (or to support) the proposed tower, because none of us were notified of it through official means.
Virtually all of the neighbors on Sunnyhill and the adjacent streets only learned about the proposed "Verizon" cellular base station project when the public notice sign was erected. Had we, the residents, been informed about this application in a timely matter, we would have had sufficient time to prepare an organized opposition to the project at the August 26, 2019 Planning Commission meeting.
"Verizon" WTF Proposed to Surround an In-Ground Water Tank
The Administrative decision (link to AD; attached) approving Permit Number RPD-75-139 on August 11, 1980 was to forego a water tank that would pierce the ridgeline. The developers approved construction of an in-ground water facility with a 7-foot perimeter wall. Condition #4 of that document states that the intent was to reduce the “visual impacts” of the improvements by requiring a minimum of 8-foot high landscaping around the entire perimeter of the property. The 8-foot minimum condition has been maintained on the North-facing 180º of the property with large pine trees, landmark sycamores and other mature landscaping specimens. However, the remaining South-facing 180º is not in compliance with the original condition and has minimal landscaped screening of the perimeter fence (link to Photo A).
The Candle Crest project from the applicant, ”Verizon”, proposes the construction of twelve (12) NEW STRUCTURAL monopoles, four at each sector. Upon each monopole, "Verizon" will affix one 6-foot tall by 1-foot wide Macro antenna. These structural poles would be immediately in front of the existing perimeter fence at the North, Southeast, and Southwest sectors. Each sector extends 24-feet in length — parallel to and in front of the fence — extending out some indeterminate distance from the original fence (three to seven feet). The three sectors are placed at 120º apart, around the circle: one sector would aim is antennas north, one group would aim southwest and the last group would aim southeast.
In each group of four antennas, or sector:
- the bottom edge of the two outer antennas will be 6-feet off the ground.
- the bottom edge of the two inner antennas will be 8-feet off the ground.
Per the condition of approval for RPD-75-139, the landscaping must be a minimum of 8 feet in height. This means that the bottom 1/3 of the 2 flanking antennas would, and must, be covered with landscaping (link to Photo B).
In addition. the circular perimeter fence will be modified to extend the radius of the circle an indeterminate distance — an additional three (3) feet to seven feet (3) or more — the City Planning and its RF Consultant are not even sure what is needed. This will be done by building an additional fence in front of the antenna group of each sector. The purpose is to create fenced-off areas in front of the antennas to allegedly prevent people from entering these areas because here the antennas will transmit pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) at levels that exceed the Federal Maximum Permissible RF-EMR exposure guideline.
Other than a chain link fence and a few signs, this is the only proposed means to protect
- the unwitting workers that maintain the Water tank facility/landscaping
- the general public, which routinely hikes to this area to enjoy viewing the sunset (the Water Services Co. has never enforced the no trespassing notice)
Importantly, neither of these groups are trained on how to protect themselves from RF-EMR exposures.
Problems at the Aug 26, 2019 Planning Commission Meeting
During the August 26, 2019 Planning Commission meeting, Will Chua showed pictures of the Southeast and Southwest sectors, but EXCLUDED pictures of the North sector. Moreover, when John Hilminiski met with me at the site to review the proposed plan, he demonstrated that the North sector would be installed further to the East than the submitted application indicated.
In fact, Mr. Hilminski provided a photo (link to Photo C) of the proposed North Sector antennas, which is misleading by both omission and commission. Neither Mr. Chua nor Mr. Hilminiski informed residents that the more than 30-foot tall Allepo pine trees which would block the entire proposed North sector location would be required to be REMOVED, for the North sector to work (link to Photo D). Removal of the North landscaping would create harshly negative visual impacts to the water facility improvements and the added antenna improvements for the immediate neighborhood, as well as the surrounding homes in High Country. This is in direct conflict with the original conditions of approval for RPD-75-139
No Basis for Preemption of Local Authority
As of October 1, 2019, the DC Circuit Court of Appeals in Case 18-1051, Mozilla v. the FCC upheld the FCC’s stated plan to to re-classify Internet/streaming video and gaming as unregulated Title 1 "Information Services" leaving only voice calls as the sole remaining regulated Title II "Telecommunication Service". The antenna types proposed at Candle Crest are AWS (2,100 MHz), PCS (1,900 MHz) and 700MHz, which are primarily internet/video data frequencies, NOT voice frequencies. Therefore, the basis for preemption of local authority for this WTF has not been established by "Verizon".
Data frequencies are for unregulated Title 1 "Information Services", while Voice frequencies are for regulated Title 2 "Telecommunication Services". This distinction is important, given the October 1, 2019 DC Circuit Court of Appeals Ruling in Case 18-1051, Mozilla Corp. v. FCC (from pages 121 to 146), in which the judges write:
"Internet has been the subject of protracted litigation, with broadband providers subjected to and then released from common carrier regulation over the previous decade. We decline to yet again flick the on-off switch of common-carrier regulation under these circumstances. But because the Commission’s Preemption Directive, see 2018 Order ¶¶ 194–204, lies beyond its authority, we vacate the portion of the 2018 Order purporting to preempt “any state or local requirements that are inconsistent with [the Commission’s] deregulatory approach[,]” see id. ¶ 194. For the foregoing reasons, the petitions for review are granted in part and denied in part. So ordered."
The 1996 Telecommunications Act ("1996-TCA") provides narrow preemption only for the placement, construction and modification of Wireless Telecommunications Facilities (WTFs) to enable a nationwide network of regulated Title 2 "Telecommunication Services", which, in 2020, has been achieved in North Ranch. There is simply no basis for preemption for additional wireless services in North Ranch. In fact, the developers of North Ranch had the foresight to forestall such a wireless invasion.
There is no further preemption for Wireless data services including, but not limited to wireless Internet access, wireless Video streaming, wireless gaming — essentially anything that is beyond a wireless voice call. These are merely business goals, not nationwide priorities, and as such, it was never the legislative intent of the 1996-TCA for the wireless industry to be able to use preemption, or any of the special favors they seek from the FCC to maximize their profits from additional wireless services. Once significant gaps in voice coverage have been closed, then preemption no longer applies.
No Significant Gap in Verizon Coverage
The apparent applicant, “Verizon”, alleges that there is a “gap in coverage” in the North Ranch area, but they have not entered substantial written evidence in the public record — no data that a third party could analyze or verify — that establishes this statement as true. "Verizon" conveniently claims that such coverage data is "proprietary "and actively hides the critically-important data from the City and the public, which is wrong.
In contrast, I have entered substantial written evidence in the public record establishing that there is no significant gap in coverage, as defined by the 2005 Ruling in the Ninth Circuit Court of Appeals, Metro-PCS v. San Francisco.
Verizon’s interactive map on its website, shows NO GAP in coverage exists for 4G LTE as of 10/19/2018 (link to Verizon web site). Of course, these maps are not substantial written evidence in the public record, either.
“Verizon” agents provided additional “propagation” maps of the North Ranch area — based on the unverified, proprietary, hidden data, referenced above — that have no relationship to the other fictional maps on their web site. These two different sets of maps contradict each other and neither set of maps can establish whether or not "Verizon" has an actual "Significant Gap in Coverage" for Telecommunications Service — the only service for which "Verizon" can now claim preemption of local authority for WTF placement, construction and modification.
Said maps are difficult to decipher since they are contradictory. Many of the areas in North ranch are open space, where there are no homes. Several areas are on the fairways of the North Ranch Country Club. Using the “Verizon”-supplied “propagation” map, my daughter and I visited 41 locations throughout the North Ranch and Country Club Estates area where “Verizon” had purported a gap in coverage. In these areas, we were able to make 41 successful phone calls using a "Verizon" phone with the cellular data turned off (establishing that we were testing "Telecommunications Service"). Furthermore, a close look at “Verizon’s” propagation maps with and without Candle Crest revealed NO DIFFERENCE in coverage on streets such as Valley Spring (link).
None of these "Verizon"-provided maps can be considered substantial written evidence in the public record without "Verizon" also placing in the public record, the raw data used to create these maps — so the data can be analyzed and verified by any neutral third party that chooses to do so. Therefore, the City cannot consider any of these "Verizon"-provided maps in the City’s deliberations over the Candle Crest project. The City can only base its decisions on substantial written evidence in the public record: i.e. the slides (link) that I placed in the record that establish there is No Significant Gap in Verizon Telecommunications service in the areas targeted by this proposed WTF.
Problems with the WTF Design
The design of this proposed installation is unlike any other WTF we have researched throughout Thousand Oaks. The 3 factors that need to be compared between the sites are:
- Vertical offset – how many feet off the ground will the antenna(s) be installed,
- Horizontal offset – how many feet away from residential structures will the antenna(s) be installed.
- Maximum Effective Radiated Power Output – the amount of cumulative power (in Watts ERP) that exits the face of the antenna shrouds from all antennas within these shrouds.
This proposed installation is:
- the CLOSEST to the ground (24 feet) and
- has the HIGHEST output power (36,000 Watts ERP or more)
. . . for any other WTF that has been approved for 90 feet from a residence.
With regard to City ordinance 97-197, NONE the three “location preferences” have been met. The installation is in a residential zone (violation of preference #1). Seven homes are within the 250-foot set back preference (violation of preference #2). The particular lot in question is 2.5 acres. The southwest corner of the lot is “as far as possible” from any residential structures, which is greater than 250 feet (violation of preference #3). However, this proposed installation is within 92 feet of the Dirks home (photos E & F).
The fact is that this site is governed by a local ridgeline ordinance, which prevents any structure, including water tanks and cell towers, to pierce the ridgeline. This has led "Verizon" to propose a non-sensical design: Macro tower antennas installed just 6 feet off the ground.
In order to respect the view protection and ridgeline ordinance the antenna design is attempting, essentially, ground-mounted Macro antennas installed 6 feet off the ground. This is utter nonsense. This design clearly violates the intent of the 1996 Telecommunications Act (1996-TCA), as evidenced in the Conference Report for this bill:
From pages 207-209 of the 1996-TCA Conference Report (https://www.congress.gov/104/crpt/hrpt458/CRPT-104hrpt458.pdf)
"The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district."
Our elected Senators and Housemembers when they voted through the 1996-Act never intended even 50-foot cell towers in residential areas not to mention Macro tower antennas installed just 6 feet off the ground.
The City can deny this WTF project on this basis alone as the project is ultra vires: outside the law and outside of the legislative intent of the underlying statute against which all FCC regulations must be measured.
Please refer to Verizon’s site plan and review the elevations and typography of the surrounding area. The base of the fence is at 1503 feet. Sunnyhill Street (an the adjacent homes) is at 1485 feet. The lowest point of the 6-foot tall antenna off the ground is 6 feet (or at 1509 feet of elevation). Additionally the proposed site is effectively a “base-station”. As a result the power output is huge. The reported output is 36,000 or more Watts of Effective Radiated Power.
This type of installation, this low to the ground with this much power, this close to residential structures DOES NOT exist anywhere in Thousand Oaks.
Problems with Proposed WTF Antenna Installation
We were told by Staff that “don’t worry the radiation beams will go right over your head”. This statement is NOT true.
The specifications of the proposed antennas show a 12º vertical radiation beam width for these antennas that are installed just six feet off the ground. The radiation beam will meet the ground within a few feet of the antenna — which we know is true since protective fencing in front of the antennas has been required.
Furthermore, these antennas are to be installed with a 4º downward tilt. At just 100 feet away, four or more radiation beams would directly hit all of our homes and yards 24/7 year after year, after year.
For this strong of an antenna to be acceptable in this residential area it should installed be at least 100 feet in the air. At that height, the beams would be above our heads. However, due to the ridgeline ordinances this condition cannot exist on Sunnyhill.
Therefore, in order for the installation to obey the ridgeline ordinance the design is such that this is essentially a ground-level installation with massive power output. There is NO approved or installed WTF in Thousand Oaks with as much Power output in Watts ERP this close and low to residential structures. This is a nonsensical design for a residential area.
Problems with the Alleged "Verizon" Alternate Site Analysis
Verizon’s attempt at an alternate site analysis is poor at best. They proposed only two(2)alternate sites. The first is a single light pole (33 feet high) at 1099 Vista Ridge in Country Club Estates which they dismissed because it was too close (110 feet) to a home and it did not allow room for the equipment vault in the public right of way. The second site they proposed is a private residence again in Country Club Estates on Summit View
Importantly, the North Ranch Country Club had a deal on the table with "Verizon" to place a WTF at their driving range, but the deal was pulled by "Verizon". This was not reported in the Verizon alternate site analysis.
Much better alternate sites exist in North Ranch, Country Club Estates and High Country that would comply with all three location preferences of 97-197. These include the following:
- Traffic lights/poles on the corner of Valley Spring and Westlake Blvd.
- Light pole at the corner of Middle Fork and Lake View Canyon in Country Club estates
- The light pole directly on the East once entering into Country Club Estates past the North Kiosk
- Adjacent to the gated road at the South End of Country Valley Road in Country Club Estates which connects to la Merida
- The series of high-power electrical transmission lines (total of 8) along the foothills of High Country in North Ranch, over 1000 feet from homes
- Two water reservoirs in the foothills of High Country, over 1000 feet from homes
Problems with Landscape Maintenance and Trees
The Landmark Tree Report prepared by Kay Greenly dated August 30, 2017 is weak and very superficial. There is no in-depth analysis as to the true impact of the Sycamore trees. The impact to the Sycamore trees will be due to the trenching taking place within their dripline for the 70-foot“ wireless Telecom route” as per sheet A-2 of the Verizon plan. There is no depth of the trench indicated on this plan therefore there is no way Greenly can make any determination as to the impact to the Sycamore trees. This is validated by the report I obtained from James Dean, the arborist I have retained. Furthermore, in Greenly’s report on page 7 she states her opinion is based on “macro-visual observation” only. No soil analysis or microbiological analysis was performed. She further states “should physical or biological concerns be evidenced…further investigation…may be required. ”In light of Mr. Dean’s landmark tree report he states that one of the sycamore trees (already in a poor state) may succumb to the potential root damage. He recommends that additional [environmental] needs to be undertaken to address the precise impact of the [Sycamore] trees.”
Per the Hammet-Edison’s report on page 2 under “study results” the report states for a person at ground level directly in front of the antenna the calculated RF exposure level will exceed the regulatory exposure limit. Please refer again to the conditions of approval for RPD-75-139. Not only do those conditions require a maintained 8-foot high landscaping but also under condition #4 a permanent irrigation system is required.
It is obvious that a professional landscape company will provide landscaping and irrigation maintenance. Furthermore, I have personally seen maintenance personal from the California Water Service Company walk about the perimeter of the fencing and structure. There also have been, on numerous occasions, people walking onto the property to enjoy the view and sunsets. There will be either maintenance people and/or view-seekers standing in front of the antennas, which are only 6 feet off the ground. Those people could easily experience exposures ABOVE the regulatory limit because "Verizon" changes the Effective Radiated Output on a second-by-second basis using software and Artificial Intelligence (AI) to meet demand.
This proposed WTF will have additional significant environmental impacts. Trees will be removed which can accelerate the greenhouse effect. Landmark Sycamore trees will be violated and may not survive the encroachment (see Arborist report from James Dean). Diesel fuel storage above a drinking water source may leak therefore mitigation measures must be determined. The diesel exhaust will negatively affect the environment and mitigation measures must be determined. Noise pollution from the generators, increased traffic and traffic safety, compromised bee colonies affecting pollination therefore my production of olives and fruit from my orchards are all significant factors.
Candle Crest will have the following additional significant environmental impacts.
- Trees will be removed which can accelerate the greenhouse effect.
- Landmark Sycamore trees will be violated and may not survive the encroachment (see Arborist report from James Dean).
- Diesel fuel storage above a drinking water source may leak; mitigation measures must be determined
- The diesel exhaust from the generators will negatively affect the environment; mitigation measures must be determined.
- Noise pollution from the industrial generators will further pollute our residential zone
- Excessive Effective Radiate Power from the antennas will negatively affect bees and other pollinators, reducing the production of olives and fruit from my orchards
All of these are significant factors which must be considered in an environmental assessment.
Summary
In summary, this site is constrained by the competing view and ridgeline laws, which is forcing a very unusual ground-level antenna installation unlike any in Thousand Oaks. The excessively high Effective Radiated Power output creates exposure levels greater than the regulatory standards. Additionally, legitimate environmental impacts have been raised and require further assessment. Unique to my situation due to my occupational exposure to gamma radiation I CANNOT tolerate excessive EMF radiation and the accumulation of the two types of radiation is detrimental to my health, my patients’ health and my ability to financially provide for my family.
Being an Orthopedic Surgeon I am around x-rays EVERY day and as a result of that exposure I have an Electromagnetic Sensitivity to EMF and a lower threshold of exposure tolerance. The proposed location 180 feet from my home would impose serious health problems including but not limited to decreased mentation and cognitive losses, which would affect my ability to practice medicine. The placement of such antennas would burden me with the necessity to monitor both gamma radiation and RF-radiation. This is unreasonable. Due to a limited amount of cumulative radiation (both gamma and RF) I could tolerate, I would be UNABLE to practice my medical specialty if I was over burdened with RF radiation exposure. Like the Firemen, I am too a first responder, as I get called to the Emergency Room frequently to perform life-saving operations on injured and sick Thousand Oaks residents. I should be afforded the same protections afforded to firefighters and be protected from harmful EMF radiation resulting from my career in service of the public. Such a loss of my ability to practice medicine would permanently disable me and financially destroy my family and me.
In addition to the adverse visual impact of tree removal and visualization of cellular antennas in a residential neighborhood, the emitted radiation for those same antennas would decrease the value of our homes will by 20% (link realtor letter). Recently a home on out street sold for $7 million. Furthermore, after speaking with my homeowner’s insurance agent, I was advised that living close to a fuel source in an area which was recently struck by wild fires, our homes would have great difficulty obtaining fire insurance. Or at minimum, our premiums rising substantially (link).
I would like the opportunity to speak with each of you individually. My preference is personally and I invite you to visit this site to appreciate the uniqueness to this proposed installation. The hearing date is fast approaching on January 14, 2020. Please let me know what is the best time to discuss this matter.
Regards,
Dr. Greg Tchejeyan, MD
Appendix A: Documents Referenced Above
Appendix B: Current Wireless Company Frequencies, Excluding 5G
Typical Wireless Industry 2G/3G/4G FrequenciesCertain Frequencies are for (Title-II Regulated) Voice and Others are for (Title I-Unregulated) Video, Internet or Streaming
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF VENTURA
VENTURA DIVISION
TENTATIVE RULINGS
EVENT DATE: 10/09/2020 | EVENT TIME: 08:20:00 AM | DEPT.: 40
CASE NUM: 56-2020-00541772-CU-WM-VTA
CASE TITLE: TCHEJEYAN VS. THE CITY COUNCIL
JUDICIAL OFFICER: Mark Borrell
CASE CATEGORY: Civil – Unlimited
EVENT TYPE: Motion To Quash – Service of Process and Motion to Dismiss
Petition for Writ of Mandate for Failure to . . .
CASE TYPE: Writ of Mandate
CAUSAL DOCUMENT/DATE FILED: Motion to Quash, 09/11/2020
The following is a statement of the court’s tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties’ oral arguments. The tentative ruling will have no legal effect unless adopted by the court.
No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell’s secretary, Denise Arreola, at 805-477-5894, stating that you submit on the tentative. A copy of the telefax must be sent to all opposing parties contemporaneous with transmission to the court. Please include the hearing date, the case name and case number on your telefax. Do not call in lieu of sending a telefax, nor should you call to see if your telefax has been received. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence.
This comes on for hearing on the motion of respondent, City Council of the City of Thousand Oaks ("the City Council"). The motion, filed as a single document, is captioned as a motion to quash for lack of proper service and a motion to dismiss. For reasons discussed below, the court treats these as separate motions and treats the motion to dismiss as a demurrer to the amended petition. The court will address the motion to quash first (see Code Civ. Proc., § 418.10, subd. (e)(3)), and finding that motion to be moot, the court will consider, and sustain, the demurrer.
- Requests for Judicial Notice
The parties’ respective requests for judicial notice are granted.
Motion to Quash
The City Council’s Notice of Motion contends that the City Council is "specially appearing" in bringing its present motion. (See Notice of Motion, 2:2-6.) The validity of this contention is critical, because if the City Council is actually making a general appearance in bringing its motion, it should be deemed to have waived any objection based on service of the Summons and First Amended Complaint ("Amended Petition"). (See, e.g., Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) As a result, if the City Council’s present motion constitutes a general appearance, its motion to quash service of the Summons and First Amended Petition must be denied.
The court notes that the City Council’s claim that it is making a special appearance is not dispositive, and a special appearance is normally limited to an argument that the trial court lacks personal jurisdiction over the defendant. (See, e.g., In re Clarke (1899) 125 Cal. 388, 392; Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036-1037.)
Here, the City Council makes a single argument that goes specifically to the issue of personal jurisdiction: namely, its argument that Petitioner did not serve the City Council with a summons. However, this argument appears to have been rendered moot by Petitioner’s service of summons on the City Council on September 22, 2020, while the City’s motion was pending. (See Reply Brief, 7:25-27.) As a result, to the extent that the City Council’s motion to quash was based on the argument that it had not been served at all with a Summons, that argument has been rendered moot and no longer supports a finding that the Court lacks personal jurisdiction over the City Council.
The City Council’s motion to quash raises a second point. Indeed, it’s main argument in support of the motion to quash is that the Amended Petition is time-barred under Government Code section 65009, subdivision (c)(1)(E) because the Amended Petition and Summons were not served on the City Council within 90 days of the City’s decision on the zoning permit. This contention, however, is based on a misunderstanding of personal jurisdiction.
A party may make a special appearance and contest issues of personal jurisdiction by a motion to quash. "Personal jurisdiction is not determined by the nature of the action, but by the legal existence of the party and either its presence in the state or other conduct permitting the court to exercise jurisdiction over the party." (Greener v. Workers’ Comp. Appeals Bd., supra, 6 Cal.4th 1028, 1034–1035.) "Subject matter jurisdiction, by contrast, is the power of the court over a cause of action or to act in a particular way." (Ibid.)
Whether a party has been properly served is a matter of personal jurisdiction. Service of the summons in a manner allowed by law is how the court acquires jurisdiction over the person. That process generally is not affected by the nature of the dispute. Conversely, as explained below, whether an action is time-barred is not a matter of personal jurisdiction.
Statues of limitations are only "jurisdictional" in the sense that they are mandatory, and a trial court normally lacks the discretion to extend them or excuse noncompliance with them for "good cause." (See, e.g., Alliance for Protection of Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25, 30-32; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211.) Renoir v. Redstar Corp., which is cited by the City Council for the proposition that "service of summons in conformance with the mode prescribed by statute is deemed jurisdictional" (see Moving Brief, 10:14-17), only stands for the proposition that noncompliance with the service statutes is an issue of personal jurisdiction; not that noncompliance with a statute of limitations is an issue of personal jurisdiction. (See Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152.)
Nor does Government Code section 65009, subdivision (c)(1) – the limitations period relied upon by the City Council – compel the conclusion that the limitations period raises an issue of personal jurisdiction. The provision setting forth the limitations period itself is a standard one, merely stating the time period in which an action may be brought:
"(c)(1) Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision: …[¶¶]
(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit…." (Gov. Code, § 65009, subd. (c)(1).)
Subdivision (e) of Government Code section 65009 provides that: "Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding." (All subsequent references are to the Government Code unless indicated otherwise.)
Although this provision makes clear the mandatory nature of the various limitations periods set forth in section 65009, and that they apply to "all persons," it does not suggest that the limitations period is a matter of personal jurisdiction that may be raised in a special appearance on a motion to quash.
The relevant case law does not suggest that an alleged time-bar under section 65009, subdivision (c)(1) involves any issue of personal jurisdiction that is properly raised by means of a special appearance on a motion to quash service. (See, e.g., Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1185 [§65009 time-bar addressed on demurrer]; City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1283-1285 [defense based on §65009 time-bar apparently addressed at hearing on writ of mandate]; Howard Jarvis Taxpayers Ass’n v. City of L.A. (2000) 79 Cal.App.4th 242, 245 [§65009 time-bar addressed on motion for summary judgment]; Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765 [not entirely clear, but the §65008 time-bar appears to have been addressed in the trial court’s ruling on the writ petition]; Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1114 [§65009 time-bar addressed on a motion to dismiss]; Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1570 [§65009 time-bar addressed on demurrer]; Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542, 545-546 [§65009 time-bar addressed on demurrer]; Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1480-1481 [§65009 time-bar addressed on demurrer]; Citizens for Beach Rights v. City of San Diego (2017) 10 Cal.App.5th 1301, 1306-1307 [§65009 time-bar addressed during bench trial of mandamus petition].)
Based on the above, the City Council’s present motion seeks relief on the basis of a time-bar that does not implicate a lack of personal jurisdiction. As a result, the court does not consider the merit of this argument on the motion to quash.
The motion to quash is denied.
Motion to Dismiss (Demurrer)
Having denied the motion to quash, the court will rule on the City Council’s motion to dismiss, which the court treats as a demurrer to the Amended Petition. The basis for the motion is that
(1) Petitioner failed to timely serve the Summons and Amended Petition on the City Council; and
(2) Petitioner failed to name and timely serve an indispensable party, real party in interest Verizon.
The court finds the first issue dispositive of the motion.
Is the Amended Petition Time-Barred?
The City Council contends that the Amended Petition is time-barred under the 90-day limitations period set forth in section 65009, subdivision (c)(1).
The parties do not appear to dispute the following material facts:
(i) the City Council issued its decision denying Petitioner’s appeal of the subject permit on January 14, 2020 (see Amended Petition, ¶¶4, 33; Moving Brief, 9:10-12; Opposition Brief, 1:17-22), and the Clerk certified the Resolution denying the appeal on January 16, 2020 (see Opposition Brief, 1:22-28; Reply Brief, 2:11-14);
(ii) the City Council was not served with the original Petition filed in this action but was served with the Amended Petition on August 13, 2020 (see Moving Brief, 9:187-20; Opposition Brief, 2:14-19); and
(iii) the City Council was served with the Summons on September 22, 2020. (See Decl. of Marti Clark, ¶7; Reply Brief, 7:25-27.)
The parties dispute which limitations period applies to Petitioner’s action. The City Council contends that the Amended Petition is governed by a 90-day limitations period in section 65009, subdivision (c)(1)(E). Petitioner contends that the Amended Petition is governed by a 180-day limitations period pursuant to section 65009, subdivision (d)(2)(C).
The City Council is correct.
Subdivision (c)(1)(E) of section 65009 provides that the 90-day limitations period of §65009(c)(1) applies in cases,
"To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit."
Section 65901, subdivision (a) addresses applications for conditional use permits or other permits and zoning applications. Verizon’s original application for a use permit would fall into this category. Section 65903 addresses appeals of decisions on use permits/variances, such as Petitioner’s appeal of the permit issued to Verizon.
Although the Amended Petition purports to assert 19 separate causes of action, the only substantive relief Petitioner seeks relate to the Planning Council’s approval of Verizon’s use permit and the City Council’s denial of Petitioner’s appeal of the Planning Commission’s appeal. (See Amended Petitioner, Prayer, ¶¶1-3.) Effectively, the entire Amended Petition is an attempt to get the court to overrule the City Council’s decision on Petitioner’s unsuccessful appeal of the approval of Verizon’s permit, and therefore falls under section 65901 and 65903. As a result, the time for service of the summons is governed by the 90-day limitations period in section 65009, subdivision (c)(1).
Notwithstanding, Petitioner contends that the 180-day limitations period set forth in section 65009, subdivision (d)(2)(C) applies to his Amended Petition. This subdivision provides that:
"An action or proceeding challenging an action taken pursuant to Section 65863.6, or Chapter 4.2 (commencing with Section 65913), or to challenge the adequacy of an ordinance adopted pursuant to Section 65915 shall be served within 180 days after the accrual of the cause of action as provided in this subdivision." In particular, Petitioner contends that the City Council’s decision denying his appeal of the approval of Verizon’s permit was "an action taking pursuant to Section 65863.6."
That section provides that:
"(a) In carrying out this chapter, each county and city shall consider the effect of ordinances adopted pursuant to this chapter on the housing needs of the region in which the local jurisdiction is situated and balance these needs against the public service needs of its residents and available fiscal and environmental resources. Any ordinance adopted pursuant to this chapter which, by its terms, limits the number of housing units which may be constructed on an annual basis shall contain findings as to the public health, safety, and welfare of the city or county to be promoted by the adoption of the ordinance which justify reducing the housing opportunities of the region.
(b) Notwithstanding Section 65803, this section shall also apply to a charter city."
This provision has been construed by the California Supreme Court as
"…requir[ing] a city or county to ‘consider the effect of ordinances’ on local housing needs and to balance those housing needs against the public service needs and the available fiscal and environmental services. Any ordinance adopted must contain findings as to the public health, safety, and welfare factors which justify restricting the housing opportunities." (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 823.)
The requirements of section 65853.6 are applicable, inter alia, in cases involving "no-growth," "slow-growth," or other growth control ordinances. (See, e.g., DeVita v. County of Napa (1995) 9 Cal.4th 763, 785-786.) Here, the Amended Petition does not identify any ordinance enacted/adopted by the City Council contrary to section 65863.6, does not mention section 65863.6, and does not seek an order finding any of the City’s Municipal Ordinances invalid for failure to comply with section 65863.6. Petitioner’s attempt to characterize Planning Commission’s approval of Verizon’s permit application and the City Council’s Resolution No. 2020-002 denying Petitioner’s appeal of the Planning Commission’s permit decision as "ordinances" (see Opposition Brief, 4:22-6:21) is unpersuasive. The enactment of an ordinance is a legislative act and ordinances are usually of general application.
Here, the Planning Commission’s approval of the permit was an executive act, the City Council’s denial of Petitioner’s appeal was an adjudicatory act, and both of these actions were limited to a single permit application by Verizon (or its agent). Accordingly, neither the Planning Commission’s approval of the permit nor the City Council’s denial of Petitioner’s appeal of that approval can reasonably be considered the adoption of an ordinance within the meaning of section 65863.6.
Based on the above, the Court concludes that the 90-day limitations period established in subdivision (c)(1) of section 65009 is the controlling authority. The court must next determine whether that limitations period bars Petitioner’s action.
As indicated above, it is undisputed that the City Council’s decision denying Petitioner’s appeal occurred on January 14, 2020 and was certified by the Clerk on January 16, 2020. The City Council contends that the statutory limitations period started to run on the former date, and Petitioner contends that the period started to run on the latter date. This two-day difference is critical to the ruling on the City Council’s motion to dismiss.
Subdivision (c)(1) of section 6009 provides, in pertinent part, that: "no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision…." The plain meaning of the statute, then, suggests that the relevant date is the date of the legislative body’s "decision."
Petitioner’s Amended Petition alleges that the City Council denied Petitioner’s appeal on January 14, 2020 at the hearing (see Amended Petition, ¶¶24, 25, 33), and in its Prayer for Relief seeks an order "overturning the decision of the City Council on January 14, 2020…." (Id. at Prayer, ¶1.) As a result, Petitioner appears to allege that the City Council’s decision was made on January 14, 2020, and these allegations in its verified pleading could be construed as binding judicial admissions that the City Council’s decision was made on January 14, 2020.
In any event, the only authority that Petitioner cites for the proposition that the City Council’s January 14, 2020 decision on Petitioner’s appeal of the Verizon permit was not "final" for the purposes of the running of the limitations period, County of Sonoma v. Sup. Ct., does not support Petitioner’s argument. In County of Sonoma, the 1 st District Court of Appeal was addressing when the limitations period starting to run on a writ targeting an ordinance, not an adjudicatory decision on an appeal of a permit such as in the case before this Court, and held that:
"The trial court appears to have concluded the action was timely because it was brought within 90 days of the initiation of ‘enforcement proceedings’ against the Cooperative. By ‘enforcement proceedings,’ the trial court evidently meant the County’s issuance of the October 2, 2009 stop order. We disagree that the limitations period on the Cooperative’s suit ran from the date of that order. Instead, we are in accord with the County’s view that because ‘there was no administrative adjudicatory decision related to [the Cooperative’s] claims,’ the limitations period cannot have commenced on any date other than the effective date of the Ordinance.
"Contrary to the trial court’s apparent assumption, the stop order is not a ‘final adjudicatory administrative decision,’ and in its briefs in this court, the Cooperative does not contend that it is. [Citation.] In the court below, the County argued without contradiction that the Sonoma County Code provided procedures by which the Cooperative could obtain an administrative hearing and decision on its challenge to the stop order. The Cooperative does not claim that it exhausted those procedures. Had it done so, it would have received an administrative adjudication regarding the stop order and could then have sought judicial review of that final adjudicatory administrative decision. [Citation.]
Under Hensler [v. City of Glendale (1994) 8 Cal.4th 1], the limitations period for challenging the application of a land use regulation to a specific piece of property runs from date of the final adjudicatory administrative decision. (Hensler, supra, 8 Cal.4th at p. 22.) No such decision exists in this case. Since the Cooperative’s claims of facial invalidity also are not challenges to a final adjudicatory administrative decision [citation] its action is time-barred even though it was brought 11 days after the date of the stop order." (County of Sonoma v. Sup. Ct. (2010) 190 Cal.App.4th 1312, 1326-1327.)
Here, that the City Council made its "final adjudicatory administrative decision" denying Petitioner’s appeal on January 14, 2020. Indeed, the City Council’s Resolution No. 2020-002 denying Petitioner’s appeal expressly indicates that it was "PASSED AND ADOPTED this 14th day of January, 2020." (See City Council’s Request for Judicial Notice, Exh. C [Resolution No. 2020-002], p. 2.) The fact that the City Clerk did not certify that a true copy of the resolution had been placed in the City’s records until January 16, 2020 (id. at p. 3) does support the conclusion that the City Council’s decision was made on the later date. The city clerk’s certification of the resolution was a ministerial act, not the decision itself.
For these reasons, the court finds that the City Council made its "decision" within the meaning of section 65009, subdivision (c)(1) on January 14, 2020, and consequently the 90-day limitations period started to run on that date. Given this conclusion, the court must next determine whether Petitioner’s action against the City Council is time-barred.
In making this determination, the court must take into consideration the Judicial Council’s Emergency Rule 9(b) adopted due to impact of the COVID-19 pandemic. That subdivision provides as follows:
"Tolling statutes of limitations of 180 days or less
Notwithstanding any other law, the statutes of limitations and for repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020."
As a result of Emergency Rule 9(b), the 90-day limitations period applicable to the Amended Petition (i) ran for 82 days between January 14 and April 5, 2020; (ii) was tolled from April 6 through August 3; and (iii) ran another 8 days from August 4 through August 11, 2020. As a result, Petitioner was required to both file and serve his Amended Petition on the City Council no later than August 11, 2020. As indicated above, it is undisputed that the City Council was not served with the Amended Petition until August 13, 2020, and that the City Council was only served with the Summons on September 22, 2020.
Section 65009, subdivision (c)(1) provides that a writ petition attacking a permit decision is timely only if "the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision" (emphasis added). As a result, Petitioner has not prosecuted this action in a manner consistent with section 65009, subdivision (c)(1). (See Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 948-950 [service which is even one day late is insufficient].)
Based on the above, the Amended Petition is time-barred. In his Opposition Brief, Petitioner requests that even if the Court "resolves the legal issues in a manner adverse to Petitioner, the Court should exercise its discretion under Cal. Code Civ. Proc. 473 in allowing this writ petition to proceed." (Opposition Brief, 13:9-11.)
However, as indicated above, such limitations periods are mandatory and the Court lacks "jurisdiction" to grant relief to a petitioner/plaintiff who fails to comply with such a limitations period. (See Alliance for Protection of Auburn Community Environment v. County of Placer 215 Cal.App.4th at pp. 30-32; Abers v. Rohrs, supra, 217 Cal.App.4th at p. 1211.) Accordingly, Petitioner’s request for relief under Code of Civil Procedure section 473, subdivision (b) is denied.
Because the defect in the Amended Petition cannot be cured, leave to amend is denied and the action is dismissed with prejudice.
- Has Petitioner Failed to Name and Service and Indispensable Party?
In addition to the City Council’s contention that Petitioner failed to timely serve the City Council in this action, the City Council contends that Petitioner failed to name an indispensable party, real party in interest Verizon. The City Council further contends that Petitioner cannot now cure this failure because any attempt to name Verizon would now be time-barred. Because the court has determined that the action is time-barred on other grounds (see subsection (a), supra), the court deems this issue moot.
Conclusion
The motion to quash is denied.
The motion to dismiss is granted.
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