14 Cal. App. 5th 1066
Cal. Ct. App. 5th2017Background
- Paul and Tamara Attard own two undeveloped Contra Costa County parcels near the Caldecott Tunnel and sought to build residences but lacked municipal sewer service.
- An Attard family company (Bayseng) rebuilt a sewer through the tunnel under a contract with CalTrans; the Attards intended to connect their parcels to that line and to the City of Oakland sewer, but they did not obtain Oakland permits or county LAFCo approval required by state law.
- County staff issued building permits (including for an 8,400 sq ft home) without documented Local Agency Formation Commission (LAFCo) authorization or explicit Oakland approval; substantial foundation piers were installed under those permits.
- After EBMUD’s service request prompted review, County concluded permits were issued in error (no health/environmental approvals, no Oakland or LAFCo consent) and ordered work stopped; Board of Supervisors affirmed staff revocations.
- The Attards sued for writ of mandate and related relief, arguing vested rights/equitable estoppel, sovereign immunity (via CalTrans), and Board bias; the trial court denied relief and this decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vested right to complete construction after issuance of building permits | Attards: permits vested rights because they relied and performed substantial work (foundation piers). | County: permits were invalid on issuance because project depended on unauthorized sewer connections (no Oakland/LAFCo approvals); unlawful projects cannot create vested rights. | Court: No vested right — project was unlawful at issuance (no Oakland permit/LAFCo approval); Old Tunnel Road permit lacked reliance expenditures. |
| Equitable estoppel to prevent permit revocation | Attards: County’s issuance and practice ("one stop" process) induced reliance; estoppel should bar revocation. | County: estoppel against government is narrow; allowing it would defeat public policy and oversight needed for sewer approvals and public health. | Court: Estoppel denied — not extraordinary case; injustice not sufficient to overcome public policy and ongoing illegality (unapproved sewage discharge). |
| Sovereign immunity via CalTrans connection | Attards: involvement of CalTrans (tunnel sewer) exempts sewage connections from local regulation. | County: sovereign immunity covers state governmental functions, not private use/leasing of facilities or unrelated private sewage disposal. | Court: Sovereign immunity inapplicable — Attards’ private sewage disposal isn’t a CalTrans governmental function; use resembled proprietary/lease-like activity. |
| Due process claim based on alleged Board member bias | Attards: Board member Gayle Uilkema’s prior statements and email show bias depriving a fair hearing. | County: no timely recusal request; evidence of bias was available before the hearing and issue was not raised, so it is forfeited. | Court: Claim forfeited for failure to raise bias at administrative hearing; no relief on bias. |
Key Cases Cited
- Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (recognition that substantial good-faith reliance on a permit can create vested rights, but not for projects unlawful at permit issuance)
- City of Goleta v. Superior Court, 40 Cal.4th 270 (elements and narrow scope of equitable estoppel against government)
- Anderson v. City of La Mesa, 118 Cal.App.3d 657 (example where estoppel allowed in land-use context for de minimis violation)
- Nasha v. City of Los Angeles, 125 Cal.App.4th 470 (due process requires reasonably impartial, noninvolved decisionmakers; actual bias standard)
- Board of Trustees v. City of Los Angeles, 49 Cal.App.3d 45 (sovereign immunity does not shield private lessee activities or proprietary uses from local regulation)