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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Petition of Alexander Bogdis for a ) Declaratory Ruling that a Zoning ) Ordinance of the City of Burlingame, CA ) is Preempted Pursuant to Section 25.104 ) of the Commission's Rules ) Application File No. 93-SAT-DRZ-96 MEMORANDUM OPINION AND ORDER Adopted: June 30, 1997 Released: July 1, 1997 By the Chief, International Bureau: I. INTRODUCTION 1. On April 2, 1996, Alexander Bogdis filed a Petition for a Declaratory Ruling, pursuant to section 25.104 of the Commission's rules, that a zoning ordinance of the City of Burlingame, California is preempted because it is unreasonable and prevents reception of video programming services. After careful review, we find that Mr. Bogdis has failed to exhaust all available nonfederal administrative remedies and therefore dismiss his petition. II. BACKGROUND 2. In formulating rules governing the preemption of local zoning restrictions on satellite earth stations, the Commission has attempted to craft policies that take into account the differences in the antennas involved. In its March 11, 1996 Report and Order, the Commission described how its rule would apply to satellite antennas of different types and sizes. It also expressed its wish to "avoid excessive federal involvement in local land use issues." In addition, Section 207 of the Telecommunications Act of 1996 mandates a different standard for preemption of restrictions on certain over-the-air reception devices, including satellite antennas of one meter or less. However, as the Commission noted in the order implementing section 207, "Congress expressly excluded larger C-band satellite antennas from Section 207, and seemed to focus on the size of the antenna, rather than the specific technology, as a basis for distinction. It is for these reasons that antennas larger than one meter are governed by a different rule, 47 C.F.R.25.104, and are subject to a different threshold for Commission review than are over-the-air reception devices as defined in 47 C.F.R.1.4000. 3. On February 22, 1995, the petitioner, Alexander Bogdis, applied for a permit from Burlingame, California to install a satellite-receive-only antenna. The application was not approved. The reasons cited for denial of the antenna permit were, generally, that the required plans were not drawn to scale, and the installed antenna would exceed the City's seven foot height limit. The antenna itself was six feet, ten inches. However, Mr. Bogdis proposed to mount it on a pole at a height of fifteen feet. Under the City's relevant ordinance, plans drawn to scale were deemed necessary in order to determine the side setback--an area five feet from the property line where antennas are not allowed. Mr. Bogdis was advised to revise his drawings to scale and resubmit the application. On March 3, 1995, Mr. Bogdis's $25 application fee was returned to him when he failed to submit a revised application. 4. On March 11, 1996, the Commission issued a Report and Order and Further Notice of Proposed Rulemaking in the matter of Preemption of Local Zoning Regulation of Satellite Earth Stations. This Order revised section 25.104 of the Commission's rules. The revised rule clarified the preemption standard and established an enforcement mechanism that strives to balance federal interests in ensuring easy access to satellite-delivered services against local governments' interest in managing land use in their communities by requiring antenna users to exhaust all nonfederal administrative remedies, including variance applications, before seeking Commission review of a local zoning decision. The most "straightforward" definition of exhaustion given in the March 11 Order is "a final denial of a necessary permit with no possibility of appeal." 5. In September 1996, the City amended its antenna ordinance in order to comply with our revised rule. As a result of these changes, the City's antenna permit application was replaced by a set of guidelines for antenna placement. Residents whose antennas fall within the guidelines may now install them without the submission of any prior documentation. Residents whose proposed placements do not comply with the guidelines, however, are required to submit an antenna exception application. 6. The antenna exception application requires residents to submit a "site plan which shall include the dimensions of the property, setbacks, and location of the proposed antenna and all structures, including any existing antennas," along with other identifying and descriptive information about the location of the property and the size of the satellite dish antenna. The revised ordinance also states that "[t]he City Planner, Planning Commission or City Council shall have discretion to require the applicant to submit a site study, prepared at the applicant's cost, identifying the locations where an antenna can be installed without materially limiting transmission." III. POSITIONS OF THE PARTIES 7. Mr. Bogdis contends that the cost of applying for an antenna exception would be unreasonable. In support of his claim, he submits an estimate for land surveying in the amount of $1,500 and a second estimate for architectural services in the amount of $2,210. The purchase price of the antenna and receiver is stated to be "approximately $1,500." 8. The City argues that Mr. Bogdis has not exhausted his administrative remedies inasmuch as he has not applied for a variance or exception to the City's ordinance. The City also states that Mr. Bogdis' original application was denied because of the "proposed location and height" of his antenna. Mr. Bogdis proposed to locate his antenna in the side yard at a height of fifteen feet. The City states that in this location, the edge of the antenna would extend to the property line and violate its "set back" restrictions. The City also presents deposition testimony of satellite dish installer, John Duggins, who states that Mr. Bogdis could, in fact, install his antenna at another location on the property in compliance with City provisions. Mr. Duggins later refutes his testimony in Mr. Bogdis' reply comments. 9. The City also disputes Mr. Bogdis' statements about the cost of applying for an antenna exception. While acknowledging that Mr. Bogdis was originally told, erroneously, that the fee for an antenna exception would be $335, the City submits a memorandum showing that Mr. Bogdis has since been informed of the error and that the actual fee is $25. IV. DISCUSSION 10. Section 25.104's exhaustion of remedies requirement is designed to afford local authorities the opportunity to review their own land-use decisions prior to Commission intervention. The Commission has defined exhaustion of nonfederal administrative remedies, in part, as follows: The petitioner's application for a permit or other authorization required by the state or local authority has been denied and any administrative appeal and variance procedure has been exhausted; 11. We agree with the City that Mr. Bogdis has not met the above standard. Mr. Bogdis was given a refund of his $25 application fee and invited to resubmit his application, but he declined to do so, citing costs ranging from $2,200 to $8,000 for the services of an architect and surveyor. However, there is no requirement that the drawings required by the city be professionally prepared; they must merely be drawn to scale. The cost estimates given by Mr. Bogdis are therefore speculative and not based on actual City requirements. In addition, there is no indication in the record that the cost of a variance would be as high as Mr. Bogdis claims. Thus, we see no showing of unreasonable costs associated with resubmitting the original application. 12. Under its revised ordinance, the City has eliminated its initial antenna application process. Under the new scheme, Mr. Bogdis must apply for an antenna exception if he is to place his antenna in the side yard setback area. The Commission indicated in its March Order that a final denial of a necessary permit with no possibility of appeal is required before seeking Commission review of a local zoning decision. The Commission stated further that "for purposes of this path to exhaustion, we think it is appropriate to require users to apply for variances if necessary." As previously noted, Mr. Bogdis' original application was returned to him, along with his $25 application fee. The petitioner no longer has an initial application on file with the City for review, let alone a variance or exception request. 13. The City's exception process appears straightforward and has minimal associated costs ($25). While the city retains the discretion to require the applicant to submit and pay for a "site study," that discretion has not been exercised in this case, as Mr. Bogdis has yet to submit an application. Thus, it is not apparent on the face of this record that Mr. Bogdis will be required to pay anything in excess of $25. Since Mr. Bogdis has not reached the procedural threshold for Commission review, we decline to rule on the merits of the specific provisions of the Burlingame, California ordinance. If Mr. Bogdis chooses to pursue the City's exception process and it appears that conforming to the City's antenna installation requirements will result in an unreasonable financial burden, he may petition to have his request for Commission review reinstated. V. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED, pursuant to authority delegated to the Chief, International Bureau (47 C.F.R. 0.261 a (15)), that File Number 93-SAT-DRZ-96 is DISMISSED, without prejudice, and the petition for a declaratory ruling that a zoning ordinance of the City of Burlingame, California is preempted is DENIED. FEDERAL COMMUNICATIONS COMMISSION Peter F. Cowhey Chief, International Bureau