GOLDEN GATE WATER SKI CLUB v. COUNTY OF CONTRA COSTA

Filed 7/25/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Story Continued From Part I ..

In Toigo, the plaintiffs alleged that in rejecting their first application to subdivide a parcel, the Town of Ross led them to believe a second application would be accepted if it incorporated certain design specifications. The plaintiffs responded by redesigning the proposal, but the town denied their second application. (Toigo, supra, 70 Cal.App.4th at pp. 314-316, 317-318.) The court refused to apply the doctrine of equitable estoppel. Courts have yet to extend the vested rights or estoppel theory to instances where a developer lacks a building permit or the functional equivalent, regardless of the property owners detrimental reliance on local government actions and regardless of how many other land use and other preliminary approvals have been granted. To the contrary, it has been stated that  [w]here no such permit has been issued, it is difficult to conceive of any basis for such estoppel.  [Citations.] (Id. at p. 322.)[1]

These cases establish that in the absence of exceptional circumstances, the doctrine of equitable estoppel will not be applied to allow a landowner to circumvent land use restrictions even when the landowner relies on the public entitys express representation that the landowners plans comply with the entitys land use requirements, and certainly not when the public entity simply fails to take early action to warn the landowner the plans violate the land use requirements. There are less compelling reasons here for applying the doctrine than there were in many, if not all, of the cases we have discussed. We see little injustice in compelling the Club to remove structures constructed or installed without a permit either before contacting the County or after the County informed it the development was illegal, and without even attempting to comply with the law. In sum, what little injustice might result from abating the Clubs illegal use presents no grounds for overriding the significant interest in open space and other land use limitations benefitting the public interest.

The Club cites Anderson v. City of La Mesa (1981) 118 Cal.App.3d 657 (Anderson). There, the plaintiff constructed a house that had one wall seven feet from the side lot line. The construction complied with a general zoning ordinance requiring single-family dwellings to be set back at least five feet from the side lot lines; the city had issued a building permit allowing the construction and the city inspected the house six times during construction. After the construction was complete, the city refused to issue a permanent occupancy permit, citing a specific plan ordinance requiring the house to be set back at least 10 feet from the side lot line. (Id. at p. 659.) The landowners use of the property was perfectly consistent with the uses for the area and the violation involved nothing more than a two-and-one-half-foot setback encroachment, creating no special problem for the area or adjacent landowners. The case provides no authority for the proposition that a governmental entity may be estopped from requiring a landowner to cease a use inconsistent with the uses the public, through its local government, allows for the area.

Mansell involved extraordinary circumstances. The government not only had encouraged private development of tidelands but itself had dredged, filled and reclaimed the tidelands, with the result that the public and private development, together with natural alterations to the shoreline, created insoluble title and boundary problems. (Mansell, supra, 3 Cal.3d at pp. 469-473.) The government itself wished to relinquish its claims to the tidelands. (Id. at pp. 475-477.) Further, the combined actions of the government and private developers had resulted in an area providing an impressive array of public facilities for navigation and recreation. (Id. at p. 500.) In a sense, then, the development furthered the public interest at stake: preventing the alienation of public lands into private lands that could not be enjoyed by the public. (Ibid.) Finally, the Supreme Court found, Even more significant, we think, from the standpoint of assessing the effect of estoppel upon the public policy in question, is the fact that the rare combination of government conduct and extensive reliance here involved will create an extremely narrow precedent for application in future cases. . . . We are here concerned with thousands of homeowners who, through the long continuing conduct of the government entities involved, have been led to believe and have acted upon the belief that the lands upon which they reside are their own private properties. Because similarly compelling circumstances will not often recur, the public policy [at issue] will not suffer substantial erosion as a result of the decision we reach today. (Ibid.) The present case by no stretch of the imagination approaches the exceptional circumstances present in Mansell. The Club is not entitled to the defense of equitable estoppel.

III.

Laches

The Club contends that even if it cannot establish grounds for invoking the doctrine of equitable estoppel, the related doctrine of laches applies to prevent the County from enforcing its land use laws.  Laches is an equitable defense based on the principle that those who neglect their rights may be barred from obtaining relief in equity. [Citation.]  The defense of laches requires unreasonable delay plus either acquiescence in the act about which the plaintiff complains or prejudice to the defendant resulting from the delay.  [Citation.] [] Laches is a question of fact for the trial court, but may be decided as a matter of law where, as here, the relevant facts are undisputed. [Citation.] [Citation.] (Feduniak, supra, 148 Cal.App.4th at p. 1381.) [A]s with estoppel, laches is not available where it would nullify an important policy adopted for the benefit of the public. [Citations.] (Ibid.) Laches was not available in Feduniak, and it is not available here because applying it would nullify an important policy adopted for the public benefit.

The Club cites two cases for the proposition the doctrine of laches is available in land use cases even when the doctrine of equitable estoppel is not. Although there is some support for such a proposition in each case, neither compels the conclusion that delay by the government coupled with reliance by the landowner will allow the defense of laches where the damage to the public interest would prevent the application of equitable estoppel. We can conceive of no reason why the public interest should be of paramount importance in connection with the doctrine of estoppel but be outweighed by other considerations in connection with laches. In any event, in both People v. Department of Housing and Community Dev. (1975) 45 Cal.App.3d 185 (Department of Housing) and City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637 (Pacello),the use in question had been permitted at one time (indeed, in Pacello the use was permitted at the time of the proceedings), at least one governmental agency aligned itself with the property owner, and the evidence strongly indicated the use in question had or would have little or no detrimental effect on any public interest or policy.[2] The same considerations are not present here.

IV.

Limiting Abatement Order

The Club contends that even if there is no justification for reversing the Countys abatement order in its entirety, this court should craft an equitable decree consistent with novel conditions presented in this appeal. The novel conditions appear to be little more than that the County allowed the Club to enjoy the benefits of its illegal development for many years and later rejected various proposals to allow the Club to reduce but not eliminate the structures it built without benefit of permit or other official sanction. We find nothing in these conditions, or in the Clubs actions in filing or withdrawing applications or paying taxes on its structures, or in the argument that the Clubs use was at one time tolerated, that should limit the Countys discretion to order total abatement. To the contrary, granting the Club partial relief would encourage others to violate land use and zoning ordinances on the assumption or hope their continued violations will allow them to circumvent the planning process. Finally, while the Club perhaps is to be commended for the positive things it may have done to preserve the shoreline or the quality of the Deltas water, or to educate people about boating and waterskiing, it remains true that the Club made no attempt to bring its operations within the requirements of the law.

The Club contends the abatement order is overbroad, pointing out an A-2 district allows a single-family residence, while the order requires the Club to demolish all the structures on Golden Isle. In similar vein, it contends one or more structures might be deemed a community building or club allowed in an A-2 district for quasi-public, social, fraternal or recreational character if the user has obtained a land use permit. The Club obtained no land use or related permit before erecting or installing any of the structures on the island. Every structure therefore is illegal even if some structure might have been allowed had the Club complied with the law. The Club has made no attempt to fulfill the conditions necessary to obtain a land use permit to build a structure supporting its recreational activities, and in light of the open space designation, among other things, there is little reason to think a permit will, or would have been, granted had the Club taken appropriate action.[3] In addition, again, limiting the abatement order could only encourage like violations. The County did not abuse its discretion by ordering the Club to remove all structures.

The Club complains that had the County attempted to enjoin the Club from its illegal use of Golden Isle, it could not have obtained an order requiring all structures to be demolished. The contention is based on cases holding when a nuisance is not a nuisance per se, a court should limit the scope of an injunction, taking only those measures which would afford the relief to which the enjoining entity is entitled. (E.g., People v. Mason (1981) 124 Cal.App.3d 348, 353-354.) The nuisance at issue here is, or at least is comparable to, a nuisance per se in that it violates the Countys land use ordinance. The cited cases, therefore, have no persuasive value. In addition, as we have discussed, every structure on the island is illegal.[4]

V.

The Demurrer

The trial court sustained the demurrer to each cause of action alleged in the complaint because this courts order denying the writ of administrative mandate conclusively determined the cause of action against [the Club]. The Club characterizes this ruling as an application of the law of res judicata and collateral estoppel which preclude parties from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 243-244.) Having identified the trial courts ruling as an application of these doctrines, the Club contends they do not apply because, as the denial of the petition was subject to appeal, there has been no final judgment on all the issues between the parties. (See People ex rel. Gow v. Mitchell Brothers Santa Ana Theater (1980) 101 Cal.App.3d 296, 306.) The argument misstates the nature of the trial courts ruling, which simply was that having determined the relevant issues against the Club in connection with the writ proceedings, the court would not revisit its reasoning in connection with the complaint. By upholding the abatement order, the court necessarily decided the Club was entitled to no relief on any claim based on the validity of the order. We agree.

The Club contends that even if the abatement order is affirmed, it may still be entitled to compensation on its claim for inverse condemnation on the theory the order has resulted in a taking. The flaw in this argument is that the complaint did not allege facts sufficient to support the conclusion abatement would result in a taking.  Regulations regarding and restrictions upon the use of property in an exercise of the police power for an authorized purpose, do not constitute the taking of property without compensation or give rise to constitutional cause for complaint.  (People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal.App.3d 507, 512.) There is some authority for the proposition there may be a taking when a governmental authority adopts an ordinance severely restricting a landowners use of its property even when the ordinance substantially advances legitimate government goals. (McDougal v. County of Imperial (9th Cir. 1991) 942 F.2d 668, 677-680.) The Club, however, cites no authority holding a landowner purchasing property subject to a restriction suffers a taking when the restriction is enforced.

The rule, albeit typically announced in a somewhat different context, is that for a taking to occur, there must be an invasion or an appropriation of some valuable property right which the landowner possesses. (Selby, supra, 10 Cal.3d at pp. 119-120.) The Club never had a property right to develop Golden Isle in violation of the Countys land use requirements. It follows the Clubs additional argument, that a determination of taking liability may not be determined by way of administrative mandamus (see Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1170 (Healing) also lacks merit. The issue in Healing was whether the California Coastal Commissions refusal to issue a permit so restricted the landowners use as to effect a taking. (Id. at p. 1169.) That issue involved questions of fact, such as whether the landowner was deprived of all beneficial uses of the property or the degree of harm the planned use would cause to public lands and resources or adjacent private property. The court held such issues could not be determined on the limited administrative record before it. (Id. at pp. 1170-1175.) The issue here, in contrast, is whether the County has deprived the Club of some use of Golden Isle that existed when the Club purchased the island or was later conferred on the Club. There is no factual dispute on the point and therefore no need to consider anything beyond the administrative record.

The Clubs final contention is that its cause of action for violation of civil rights, asserted under Title 42 United States Code section 1983 (section 1983), should not have been decided on demurrer. As relevant to the Clubs appellate arguments, it alleged the Countys actions violated the Clubs federally protected rights and effected a taking. A plaintiff seeking recovery under section 1983 must plead more than constitutional buzzwords to survive demurrer. [Citation.] The plaintiff must allege specific and nonconclusory facts showing the defendants acts deprived him of a right, privilege or immunity secured by the federal Constitution or federal laws. [Citation.] (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180 (Breneric).)  To state a due process cause of action under section 1983, a party must, as a threshold matter, allege a liberty or property interest within the protection of the Fourteenth Amendment. [Citation.] A property interest is defined as a legitimate claim of entitlement to [a benefit]. [Citation.] Thus, [t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. [Citation.]  (Id. at p.181, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 319.) [A] person cannot state a section 1983 claim absent a foundational showing that the governments action deprived him of a land use to which he was entitled. (Breneric, at p. 181.) For all the reasons we have expressed, the Club had no property interest allowing it to develop the island in violation of the Countys land use requirements and zoning ordinances.

The Club also claimed, generally, a violation of equal protection, alleging the County had treated the Club differently than similarly situated property owners but had no compelling reason or rational basis for its disparate treatment. It did not allege additional necessary facts from which it might be concluded the asserted unequal treatment was the result of intentional discriminatory conduct, as opposed to mere laxity of enforcement. (See Cilderman v. City of Los Angeles (1998) 67 Cal.App.4th 1466, 1470; Wade v. City and County of San Francisco (1947) 82 Cal.App.2d 337, 339.) Moreover, a land use decision will survive an equal protection attack if it bears a rational relation to a legitimate governmental objective. (Breneric, supra, 69 Cal.App.4th at pp. 186-187.) Here, as in Breneric, the complaint itself shows the land use decision bears a rational relationship to a permissible governmental objective. In that case it was the rejection of a proposed development for transgressing aesthetic considerations. (Id. at p. 187.) Here it is the enforcement of land use restrictions adopted for the benefit of the public. As there, [b]ecause the face of the complaint shows the decision bore a rational relationship to a legitimate state objective, the complaint does not allege facts sufficient to state a section 1983 claim for denial of equal protection. (Ibid.)

For all the reasons we have stated we find the claims set forth in the Clubs complaint fail as a matter of law.

Conclusion

We conclude the Club has no protectable property right or interest in its development on Golden Isle. We therefore affirm the order denying the petition for administrative writ of mandate. We further conclude the Clubs complaint states no basis upon which the Club might be entitled to any relief. The judgment dismissing the complaint is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

Golden Gate Water Ski Club v. County of Contra Costa (A116712)

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[1] The Club contends there is no Building Permit Rule categorically precluding the defense of equitable estoppel in cases where development has taken place without first obtaining an appropriate permit. We do not rule on that contention, but note the absence of a permit is relevant both to the question of the public interest underlying the necessity of permits and to the reasonableness of the landowners conduct in building without a permit.

[2] In Department of Housing, a landowner applied to a city for a building permit for a mobilehome park in an area zoned for that use, and offered to submit an environmental impact report (EIR) on the project. The city attorney took the position an EIR was not required. The department of housing agreed, asserting the city was required only to inform the state that a mobilehome park was a permitted use under the local zoning ordinance. The city issued the landowner a building permit and wrote a statement that the proposed use was permissible under a local zoning ordinance. The department then issued a mobilehome park construction permit. The landowner commenced site preparation and construction, spending approximately $40,000. At that point the county district attorney filed a petition for writ of mandate, seeking an order compelling the department of housing and its director to rescind the construction permit for having been issued in the absence of an EIR or negative declaration under the California Environmental Quality Act. (45 Cal.App.3d.at pp. 188-189.) In the meantime the city had adopted a new zoning ordinance with setback provisions the landowner could not meet were he required to begin the process anew. (Id. at p. 198.)

The court reasoned that although there is a significant public interest in ecology preservation, it could be assumed the effect on the ecology of allowing the project to go forward was slight. [W]hen the developer applied for a construction permit, his plans conformed to local zoning demands without need for a variance, thus justifying the inference that its environmental disadvantages were minimal. (Department of Housing, supra, 45 Cal.App.3d. at p. 198.) In addition, the court found the proceeding to be novel, pointing out it had been brought by one representative of the state against another. The state here contends with itself through separate spokesmen, each espousing the general public interest, each expressing a conflicting view concerning the law and the status of the citizen who stands before the law. (Id. at p. 197.) The court concluded, The states failure to commence its suit before the citizen incurred heavy loss created an injustice which outweighs any adverse effect of the states failure to make timely environmental inquiries. We sustain the defense of laches. (Id. at p. 200.)

In Pacello, supra, 85 Cal.App.3d 637, decided by this division in 1978, the defendant property owners had purchased a two-story building consisting of a principal unit and an occupied housekeeping unit in the rear portion of the ground floor level. Five years later the zoning administrator informed the property owners, incorrectly, that the ground floor unit was illegal. The board of permit appeals ruled the administrator had erred or abused his discretion, finding the building conformed to the requirements of the planning code and related ordinances. Eight and one-half years later the city and county, basing its action on the administrators ruling, filed proceedings to abate the ground floor unit as a public nuisance. (Id. at pp. 640-641, 644.) The trial court ruled San Franciscos action was barred by the doctrine of laches. This court affirmed. Although, unlike the situation in Department ofHousing, supra, 45 Cal.App.3d 185, there appeared to be little evidence of actual prejudice to the property owners (terminating benefits a defendant has been receiving because the plaintiff has been delaying does not, of itself, constitute prejudice,) there was at least some evidence the property owners were prejudiced by the delay between the zoning administrators order and the institution of the abatement proceedings. (Pacello, at pp. 644-645.) The court pointed out the property owners had acted in good faith, San Franciscos delay was unexplained, and city and county, acting through the city attorney, [was] seeking to retake what it, through the board of permit appeals, had long since given. (Id. at p. 647.)

[3] The Club did apply to the United States Army Corps of Engineers for permits for its docks, piling, houseboats, walkways, mooring and bulkhead. This process brought the Club in contact with the United States Environmental Protection Agency and the United States Fish and Wildlife Service. The record does not indicate whether a permit ever was issued.

[4] The County contends the Clubs overbreadth and related arguments lack merit because the Clubs failure to obtain permits for the structures meant that it acquired no vested rights to construct any of them. (See Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791.) The County is correct in the law, but we do not read the Clubs argument as a claim it had some vested right, but as a claim it is entitled to some form of equitable relief despite not having a vested right.