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

Golden Gate Water Ski Club (the Club), a private nonprofit organization dedicated to the recreational sport of water skiing, appeals from an order denying its petition for writ of mandate and from a judgment dismissing its complaint. The trial courts rulings leave in place an order by the Contra Costa County Board of Supervisors (the Board) ordering destruction and removal of all the dwelling units, outhouses and docks the Club and its members had erected or installed on Golden Isle. We affirm.

Background

Golden Isle is a five-acre island in the San Joaquin Delta in Contra Costa County (the County). It is in an area designated open space in the Countys general plan. The most appropriate uses for property designated open space involve resource management, such as maintaining critical marsh and other endangered habitats, or establishing safety zones around identified geologic hazards. The County has a land use ordinance limiting urban development in the County to 35 percent of its land, reserving the remaining 65 percent for agriculture, open space, wetlands, parks and other nonurban uses. It has established an urban limit line and limits urban uses to lands lying within the urban limit line. Golden Isle lies approximately two miles outside of the urban limit line. Golden Isle also lies in a district zoned A-2 agricultural. Parcels in A-2 districts must have a minimum of five acres. The zoning generally allows no more than one detached single-family residence per parcel plus such accessory structures and uses consistent with a single-family residence. Other uses may be allowed if the landowner obtains an appropriate land use permit. These uses include publicly owned parks, community buildings, clubs, and activities of a quasi-public, social, fraternal, or recreational character, such as golf, tennis or swimming clubs, or veterans or fraternal organizations. A land use permit for such uses may be granted only if a number of conditions exist or are met. A permit may not be granted if the proposed use affects the orderly development of property within the county, affects the policy and goals set by the countys general plan, or encourages marginal development within the neighborhood. (CCC Ord. Code, 26-2.2008.)

The Club purchased Golden Isle in 1966. By 1970, without obtaining any land use or related permits, the Club had built or installed at least 15 residential dwelling units on the island in the form of cabins and/or travel trailers, plus decks, docks and other related structures. On July 1, 1970, the Countys building inspection department notified the Club its use of the island violated the Countys land use requirements and was not permitted. The Club did not cease its use of the island nor did it remove the dwelling units and other structures. To the contrary, still without obtaining any land use or related permits, the Club added to the development, so that by 2003 the development on Golden Isle had grown to 28 residential dwelling units, 28 docks and various outbuildings. The development violates the Countys land use requirements, as well as state and local health codes and ordinances, including requirements for water, sewage, floodplain management and land preservation.

In 2003, after conducting a site inspection of Golden Isle, the County posted a notice of violation at the site. Over the next two years, the Club met with County personnel several times, making various proposals in an attempt to continue its use of the island without significant change. For example, the Club proposed to reduce the development, but could not say exactly how it would be reduced. It offered to construct breezeways between a number of the residences on the site, apparently hoping the County would view several structures attached by means of these breezeways as being but a single residence. The County found none of Clubs proposals to be viable in light of the land use restrictions and the reasons for these restrictions.

On February 23, 2005, the county abatement officer issued a notice and order to abate a public nuisance by demolishing and removing all structures from Golden Isle. The Club appealed the notice to the Board, which affirmed the abatement officers determination and ordered the Club to abate the public nuisance by demolishing and removing all structures within 90 days of the Boards order. The Club then petitioned the superior court for an administrative writ of mandate seeking an order setting aside the Boards findings and order. At the same time the Club filed a complaint for inverse condemnation, violation of civil rights, injunctive relief, fraud and declaratory relief. The court denied the Clubs petition. It then sustained the Countys demurrer to the Clubs complaint and entered judgment dismissing the complaint, ruling that the theories of recovery stated in the complaint had been conclusively determined against the Club when the court denied the Clubs petition for writ of mandate.[1]

The Club has appealed from the denial of its petition and from the judgment. We granted the Clubs petition for writ of supersedeas staying enforcement of the abatement order pending appeal.

Discussion

I.

Nuisance

The Club complains its development is not a public nuisance as defined by Civil Code section 3479, providing a nuisance is [a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway. That definition is not at issue. Violations of a planning code constitute a public nuisance. (City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 401.) In Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244 (Flahive), for example, a homeowners conversion of half of her garage into two studio apartments without obtaining permits violated the municipal code, which made it a nuisance, and the city was entitled to remove the apartments. (Id. at pp. 243-245, 248.) In any event, the County has a constitutional right to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI,  7.) It therefore is not particularly relevant whether a particular violation of a zoning law is or is not a public nuisance, or whether a county, as opposed to a city, has the power to declare the violation a nuisance.[2] Unless the enforcing authoritys declaration of nuisance in some way misleads the landowner into misunderstanding the nature of the violation, it is enough that the authority has the power to act. The Club cannot reasonably claim to have been misled into believing the order of abatement was based on the statutory definition of public nuisance as opposed to the claim the Club was violating the Countys land use ordinances.

The Club, citing Flahive, asserts a governmental entitys designation of a nuisance does not necessarily make it so. Again, as the Club was fully aware of the Countys reasons for demanding it remove the structures from Golden Isle, it is of little importance that the County characterized its order as the abatement of a nuisance. In any event, while the Flahive court did state that the citys designation of a nuisance does not necessarily make it so (Flahive, supra, 72 Cal.App.4th at p. 244, fn. 4), it was addressing the situation where there is some factual dispute which, if determined in favor of the landowner, would mean the landowner was not in fact violating zoning law or land use ordinance. (See Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 718, cited by Flahive in support of the statement made in Flahive, p. 244, fn. 4.) There is no factual dispute that the Clubs development violates the Countys land use and related ordinances.

II.

Equitable Estoppel

Although the Club contends it had some sort of right to develop the island, it does not and cannot claim its development was allowed by the Countys land use requirements at the time it purchased Golden Isle, or that the land use requirements have changed since that time to allow its development, or that the County ever sanctioned its development by means of granting a land use permit or its equivalent. The Clubs actual claim, therefore, is not that it ever had or has gained a right to develop the island, but that principles of equity bar the County from abating the Clubs illegal use. The claim essentially attacks the Boards order as an abuse of discretion. Code of Civil Procedure section 1094.5 permits trial court review of quasi-judicial administrative decisions, that is, decisions that result when the agency has exercised its discretion and applied the governing regulations and law to a particular factual situation. For this purpose, an abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 124 (Selby).) To the extent the question turns on factual disputes, we review the trial courts ruling in the light most favorable to the judgment, considering only whether it is supported by substantial evidence. (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1360 (Feduniak.) Where, as is essentially true here, the facts are undisputed, and there is only one inference to be drawn, whether estoppel applies is a question of law. Finally where, as also is true here, the issues require a weighing of policy concerns, they present a question of law. (Ibid.; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 320-321 (Toigo).)

The Club contends it is entitled to relief on a theory of equitable estoppel. Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) Although the defense does not apply when even one of the elements is missing (Feduniak, supra,148 Cal.App.4th at p. 1360), the Club primarily focuses on the third and fourth elements, claiming the Countys communications and lack of communications misled the Club into believing its development of Golden Isle was and would be allowed.

After first notifying the Club in 1970 that its use violated land use and zoning laws, the County suggested the Club file an application to have Golden Isle rezoned T-1, which would allow for a mobilehome park, and also advised the Club to apply for a land use permit for a trailer park. One year later the Club filed the applications. A year after that, the County advised the Club to withdraw its applications, informing the Club it had researched the possibility of rezoning and had determined the Clubs development would not and could not comply with the requirements for a mobilehome park. The Club did not withdraw its applications and, as noted above, continued its illegal use of the island, adding to the structures already in place.

The Club asserts a County employee informed the Clubs attorney in 1974 that the County would not hassle the Club over its violations. It seems the County took no further action about the Clubs use of the island until 1979, when it wrote again advising the Club to withdraw its applications. The Club correctly asserts the 1979 communication was prompted, at least in part, by the concern the Clubs applications automatically would be approved by reason of the 1977 Permit Streamlining Act (Gov. Code, 65920 et seq.). Those concerns, however, were unfounded[3] and were not communicated to the Club. The County wrote it planned to establish a committee to address concerns about recreational uses in the Delta, would contact the Club before the committee was formed and invited the Club to participate in the committee. The Club at that time did withdraw its applications. No committee was formed and the Club simply continued to use and develop the island.

On these facts the Club could not reasonably have assumed its development complied with the Countys ordinances. To the contrary, the County at all times maintained that the development was illegal. At the most, the Countys inaction for several years, together with the representation of a single employee in 1974, might have led the Club to believe the amount of development existing in the early 1970s would be tolerated, at least during the administration in place at that time. Nothing in the employees representation or the Countys inaction reasonably could lead the Club to believe the County never would enforce its land use requirements. The Club also has failed to show it has suffered actual injury resulting from some act or omission that might be imputed to the County. The pre-1970 development took place without any permits and without any communication with the County. Nothing in the Countys later action or inaction justified the decision to add to the structures on the island after 1972. That the Club erected additional structures therefore cannot provide grounds for an estoppel. For the same reason, the expense of abatement, while substantial, does not support application of the doctrine.

The Club asserts it withdrew its applications in reliance on the Countys representation it planned to form a committee to address concerns about recreation in the Delta. As the applications would not have been granted in any event and always could have been refiled, the Club suffered little injury from its reliance. The Club points out it paid taxes on the illegal structures. The Club does not contend its payment was based on some understanding the structures thereby would be made legal or that their illegality rendered them immune from taxation. For the most part the Clubs reliance simply was to continue its illegal use of the island until it finally was compelled to desist. That is not an injury allowing the defense of equitable estoppel.

We conclude the Club did not show it was ignorant of the true facts in that, at least as of 1970, it was aware its development violated the Countys land use and zoning laws. The Club also did not show it suffered actual injury in reliance on the Countys actions or inactions. As the Club has not established at least two of the elements of the doctrine of equitable estoppel, we need not consider that defense further.

There is, however, another reason for rejecting the defense. A party faces daunting odds in establishing estoppel against a governmental entity in a land use case. Courts have severely limited the application of estoppel in this context by expressly balancing the injustice done to the private person with the public policy that would be supervened by invoking estoppel to grant development rights outside of the normal planning and review process. [Citation.] The overriding concern is that public policy may be adversely affected by the creation of precedent where estoppel can too easily replace the legally established substantive and procedural requirements for obtaining permits. [Citation.] Accordingly, estoppel can be invoked in the land use context in only the most extraordinary case where the injustice is great and the precedent set by the estoppel is narrow. [Citation.] (Toigo, supra, 70 Cal.App.4th at p. 321.)

The Club is correct that the Supreme Court has ruled the doctrine is not absolutely barred in land use cases. In City of Long Beach v. Mansell (1970) 3 Cal.3d 462 (Mansell), the court found, The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and . . . the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel. (Id. at pp. 496-497; see also p. 500.) Nonetheless, an estoppel will not be applied against the government if to do so would effectively nullify a strong rule of policy, adopted for the benefit of the public . . . .  (Id. at p. 493.)

In the field of zoning laws, [the courts] are dealing with a vital public interestnot one that is strictly between the municipality and the individual litigant. All the residents of the community have a protectable property and personal interest in maintaining the character of the area as established by comprehensive and carefully considered zoning plans in order to promote the orderly physical development of the district and the city and to prevent the property of one person from being damaged by the use of neighboring property in a manner not compatible with the general location of the two parcels. [Citation.] These protectable interests further manifest themselves in the preservation of land values, in esthetic considerations and in the desire to increase safety by lowering traffic volume. (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 822-823, fn. omitted (Pettitt).) It follows that the doctrine of equitable estoppel will not be invoked as a matter of law even where a property owner relies on a permit issued by the public entity but the permit violates a zoning ordinance. (Id. at p. 819.) To hold that [the public entity] can be estopped would not punish the [public entity] but it would assuredly injure the area residents, who in no way can be held responsible for the [public entitys] mistake. Thus, permitting the violation to continue gives no consideration to the interest of the public in the area nor to the strong public policy in favor of eliminating nonconforming uses and against expansion of such uses. (Id. at p. 823.) In addition, even aside from any direct injury to the public interest resulting from a violation of land use regulations, public policy may be adversely affected by the creation of precedent where estoppel can too easily replace the legally established substantive and procedural requirements for obtaining permits. (Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770, 775 (Smith).)

Numerous cases have refused to apply the doctrine against a governmental entity despite substantial and reasonable reliance by the landowner on some act or dereliction of the public entity. In Pettitt, for example, landowners purchased a building having two addresses on the understanding, based in part on a representation by the city, that both addresses had a nonconforming right allowing retail commercial use in an area zoned single family residential. The landowners obtained a building permit and spent substantial sums to remodel a building so that the entire building could be used as a beauty salon. The building permit violated the citys zoning ordinance, which did not authorize retail-commercial use for one of the addresses. (Pettitt, supra, 34 Cal.App.4th at pp. 816-817, 819.) The city was not estopped from denying the validity of the building permit. (Id. at p. 824.) In Smith, a telephone communications company (TMC) obtained a land use permit allowing it to build a telephone microwave station, after which it expended substantial sums in good faith reliance on the permit. (Smith, supra, 7 Cal.App.4th at p. 773.) The permit was not in substantial conformity with the conditional use permit on which it was based and should not have been issued before an environmental assessment was prepared. In refusing to apply the doctrine of equitable estoppel, the court held, The instant case would establish a broad precedent allowing government to operate in violation of its own laws. [] It is not enough to say that public policy will not be adversely affected by the application of estoppel because TMCs structure creates no health or environmental hazard. The point is that public policy may be adversely affected by the creation of precedent where estoppel can too easily replace the legally established substantive and procedural requirements for obtaining permits. (Id. at p. 775.)

In Feduniak, supra, 148 Cal.App.4th 1346, landowners purchased residential property that, in violation of a California Coastal Commission (Commission) open space easement, had been landscaped to include a three-hole pitch-and-putt golf course. The golf course, visible from the street, had been in place for 18 years and the plaintiffs purchased the property because of the golf course. After the plaintiffs purchased the property, the Commission issued orders requiring them to comply with the easement by removing the course and restoring the land to its natural state. (Id. at pp. 1354-1355.) The court refused to apply the doctrine of equitable estoppel notwithstanding the landowners reasonable belief the use was allowed, the failure of the Commission to act on an earlier date and the substantial expense to the landowners of restoring the land to its natural state. [E]stopping the Commission because of its prior regulatory inaction would nullify otherwise valid restrictions adopted for the public benefit . . . . Estopping the Commission does not punish the Commission. It would, however, injure the public, which has a strong interest in a scenic natural coastline with native vegetation . . . . (Id. at p. 1377.) Moreover, applying estoppel because of regulatory inaction could undermine the Commissions ability to enforce existing and future permit restrictions on property along the entire coast that the Commission has not been able to monitor for compliance. (Id. at pp. 1377-1378.)

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[1] The court also ruled the County was statutorily immune from the Clubs claim for fraud. The Club does not appeal from that ruling.

[2] The Club points out Government Code section 38771 provides, By ordinance the city legislative body may declare what constitutes a nuisance, but no similar statute confers authority on a county to declare what constitutes a nuisance.

[3] The act requires a public agency that is the lead agency for a development project to approve or disapprove the project within a specified time period (Gov. Code, 65950, subd. (a)), further providing that the agencys failure to act within the specified time limit shall be deemed approval of the permit application for the development project. (Gov. Code, 65956, subd. (b).) It is settled an application for rezoning may not be deemed approved by operation of law under the time limitation provisions of the act. (Land Waste Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 955; Landi v. County of Monterey (1983) 139 Cal.App.3d 934, 935-937.) It also does not require permit applications be deemed approved if not acted upon within the statutory period if the applications would require legislative changes in applicable zoning ordinances, general plans or other controlling land use regulation. (Land Waste Management v. Contra Costa County Bd. of Supervisors, at p. 961.)