Attard v. Board of Supervisors of Contra Costa County
A138702
| Cal. Ct. App. | Aug 29, 2017Background
- Paul and Tamara Attard own two undeveloped Contra Costa County parcels near the Caldecott Tunnel; development was constrained by lack of lawful sewage disposal.
- An Attard-related company (Bayseng) rebuilt a sewer lateral through the tunnel under a contract with CalTrans, enabling connection of the parcels to the City of Oakland sewer system; Bayseng paid for and constructed the system before obtaining all required permits.
- The Attards submitted building plans stamped by CalTrans and a notation from Oakland; County staff (contrary to policy) issued building permits without explicit Environmental Health Division (EHD) sign-off or Oakland/LAFCo approvals required for cross‑jurisdictional sewer service.
- The Attards began substantial construction (foundation piers and later an expanded building permit), spending hundreds of thousands of dollars, before County reinspection revealed the missing approvals and issued stop‑work orders and permit revocations.
- The Attards appealed to the County Board of Supervisors, lost, petitioned for writ of mandate and other relief in superior court (petition denied), and appealed to the Court of Appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vested‑right to complete development under issued permits | Attards: permits were issued; substantial work and expenditures vested right to proceed | County: permits were invalid on issuance because projects depended on unlawful sewer service lacking Oakland and LAFCo approvals | Held: No vested right — project was unlawful at issuance due to absent Oakland/LAFCo approvals; Old Tunnel Road permit lacked reliance expenditures |
| Equitable estoppel against County revocation | Attards: County’s issuance and practice ("One Stop") induced reliance; estoppel should bar revocation | County: Estoppel against government disfavored; public policy and health/safety review would be undermined | Held: Estoppel denied — not an extraordinary case; injustice insufficient to overcome public policy and illegal ongoing sewer discharge concerns |
| Sovereign immunity (CalTrans association) | Attards: connection via CalTrans sewer and tunnel agreement shields them from local regulation | County: CalTrans’s activities are distinct; private use of the line is proprietary/lease‑like and not a sovereign governmental function | Held: Sovereign immunity inapplicable — Attards’ private sewage disposal is not protected as a CalTrans governmental function |
| Due process / Board bias (member Uilkema) | Attards: board member showed bias (emails, prior statements) denying impartial hearing | County: No actual bias shown at hearing; Attards failed to raise recusal at the administrative hearing | Held: Claim forfeited — Attards waived objection by not raising recusal at the Board hearing; no preserved proof of disqualifying bias |
Key Cases Cited
- Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (permits, vested‑rights doctrine)
- City of Goleta v. Superior Court, 40 Cal.4th 270 (equitable estoppel against government; high threshold)
- Schafer v. City of Los Angeles, 237 Cal.App.4th 1250 (estoppel in land‑use cases; narrow, extraordinary circumstances required)
- Anderson v. City of La Mesa, 118 Cal.App.3d 657 (example of estoppel applying to minor encroachment)
- Board of Trustees v. City of Los Angeles, 49 Cal.App.3d 45 (limits sovereign immunity where state action is proprietary/lease‑like)
- Nasha v. City of Los Angeles, 125 Cal.App.4th 470 (due process standard for administrative bias claims)