The Attards filed a petition for writ of mandate challenging the revocation. In the petition, they contended the County was prеcluded from revoking their permits under the doctrines of vested rights and equitable estoppel. In addition, they contended they were exempt from local regulatory authority under the doctrine of sovereign immunity and were denied due process by the evident bias of one Board member. The trial court denied the writ petition, and we affirm that decision.
I BACKGROUND
The Attards are the owners of an undeveloped 5-acre parcel at 1000 Fish Ranch Road in an unincorporated portion of the County (Fish Ranch Road property). The Fish Ranch Road property is located on the north side of Highway 24, near the east portal of the Caldecott Tunnel (the tunnel), approximately one mile west of the urban limit line of the Town of Orinda. Although the property is designated open space in the county's general plan, its zoning allows the construсtion of one single family home per parcel.
The Attards allege that they are also the owners of the two parcels constituting the 3-acre property at 21 Old Tunnel Road (Old Tunnel Road property).
A. Sewage Disposal Through The Tunnel.
The chief barrier to development of the Attards' properties appears to be devising an acceptable means for sewage treatment. The County requires every structure to be connected either to a sanitary sewer, if a connection is available, or to an "individual system" for sewage disposal. (Contra Costa County Codе, § 420-6.301.) Because the properties are located well outside local urban limits, they are not served by any
Apparently having concluded that connection to a sanitary sewer was the only way to develop their two properties, the Attards found an undeniably creative solution. In January 2005, an Attard family company, the Bayseng Spice Company (Bayseng), entered into a contract (the tunnel agreement) with the state Department of Transportation (CalTrans).
Under the tunnel agreement, Bayseng was responsible for obtaining the permits necessary to carry out the plan from the County, Oakland, and Alameda County, as well as encroachment permits from the state. At some point in 2007, work under the tunnel agreement had been completed, and a sewer line connected the Fish Ranch Road and Old Tunnel Road properties to Oakland's sewer system. The total cost of the improvements to the Attards was estimated at $800,000.
The Attards were less diligent in securing the proper permits. While an encroachment permit was eventually issued by CalTrans, allowing Bayseng to build а sewer line through the tunnel and connect it to a sewer pipe on the Old Tunnel Road property, the permit was issued nunc pro tunc, well after the work had been completed. The Attards never obtained a permit from Oakland allowing them to use the Oakland sewer system, nor did the county issue a permit authorizing construction of sewer lines on the Old Tunnel Road property. Perhaps most important, neither the Attards nor Oakland obtained
In October 2005, the Attards applied to the County for a permit authorizing the construction of the foundation for a 4400-square foot residence on the Fish Ranch Road property. At the time, the County maintained a "One Stop" permit policy. The purpose of the policy was to insure that all the necessary agencies within the County reviewed those aspects of a permit application for which the agencies were responsible before any permit issued. As a practical matter, this required the application materials, in the words of a former planner, "to be routed, reviewed by, and discussed amongst Planning, Building Inspection, the Fire District, the Sanitary District, and Environmental Health, as appropriate," depending upon the issues raised by the application. Although in theory approval by the County Environmental Health Division (EHD) was required for a proposed sewer hook-up, in practice projects that proposed a sewer connection were not typically reviewed by EHD, presumably because a sewer connection to an existing sewer system is ordinarily a straightforward matter. Consistent with this practice, the County did not require written EHD approval when a project involved a sewer connection.
In examining the 2005 application, a County planner told the Attards that a foundation-only permit was unavailable and required them to submit complete residential plans. At a subsequent meeting, the Attards told the County that they intended to connect to the CalTrans sewer system and promised to submit plans demonstrating both the method of connection and appropriate agency authorization. When the Attards re-submitted their plans, they bore stamps of approval from CalTrans and the Oakland Public Works Department. A County planner accepted the two approval stamps as indicating regulatory approval for the sewer connections. Only later did the County learn that the Oakland stamp meant only that "the proposed upgrade of the existing sanitary sewer pipe to 8 [inches] is adequate from engineering standards" and did not constitute approval for a new sewer connection. Further, although the County Director of Building Inspections instructed his staff to obtain the approval of the proposed sewer connection by EHD prior to issuance of a permit, County staff eventually approved the plans without EHD's sign-off. Notwithstanding staff's original refusal to issue a permit only for construction of a
In 2008, the Attards applied for a new permit, authorizing an even bigger residence. In April, the new permit, this time for the entirety of an 8400-square foot residence, was approved, and the earlier foundation-only permit was cancelled. Before the present dispute erupted, the Attards had installed an additional 48 foundation piers under this permit. The total cost of the pier installation on the Fish Ranch Road property was estimated as $550,000.
In October 2008, the East Bay Municipal Utility District (EBMUD) sent a letter informing the County that the Attards had requested water service to the two properties, triggering a re-examination of the Fish Ranch Road property permit by the County. The review concluded that the
As explained in the stop work notice, the County's conclusion was based on the Attards' violation of County ordinances requiring a person proposing to develop property to submit his or her plans to EHD for approval of the water supply and sewage disposal system of the proposed structure.
C. The Old Tunnel Road Permit.
The Old Tunnel Road property owners had a long history of inconclusive code enforcement disputes with the County. In 2006, a set of plans for a building at the property was submitted to the County. The plans did not show any plumbing, but in approving the plans EHD included a notation requiring any plumbing to be connected to a sanitary sewer. The Attards thereafter disclosed their plans to connect to the tunnel sewer system. In a March 2007 letter, EHD stated that it was unable to continue processing the project until it had received a copy of the CalTrans encroachment permit, a copy of the tunnel agreement, and a copy of the plans showing the approval of the "applicable sanitary district." A subsequent set of plans was submitted bearing a stamp from the Oakland public works department stating, "approved
The final plans submitted to the County Building Department in February 2008 included plumbing, but they were never submitted to EHD for furthеr approval. Instead, the Attards' architect submitted a copy of the plans approved by EHD in 2006 without plumbing as evidence of EHD's purported approval. A building permit was issued on the basis of these plans in April 2008 for a commercial structure of 420 square feet, having "NO PLUMBING OR HEATING//NO OFFICE SPACE." The record does not explain why a set of plans with a prominent bathroom was approved with an express ban on plumbing.
In January 2009, only days after the County sent the stop work notice in connection with the Fish Ranch Road project, the County sent a letter
D. The Present Action.
The Attards filed this action in June 2010, challenging the denial by the Board of their two appeals. The complaint contained causes of action for mandamus, declaratory relief, inverse condemnation, and deprivation of civil rights. By stipulation, the mandamus cause of action was submitted for decision first.
In an October 2012 order, the trial court denied the writ petition. The court reasoned that the Fish Ranch Road permit was "invalid upon issuance" because the Attards had failed to obtain written approval for their water supply and sewage disposal plans and concluded the Attards had no vested right to pursue their plans because of this invalidity. In reaching its conclusiоn, the court found that the Attards had "actively avoided scrutiny" by EHD, were aware that they were connecting to the tunnel's sewer lateral, rather than "an approved sanitary sewer system," and never revealed to Oakland officials that they would be depositing sewage into its disposal system when they obtained the Oakland approval stamp. The Attards avoided EHD review, the court concluded, in order to avoid scrutiny of their conduct with respect to the CalTrans sewage connection.
The trial court also rejected the Attards' sovereign immunity and due process arguments. As to the former, the court concluded, "it is inconceivable that CalTrans' government function would include granting private sewer hook ups to its sewer lateral to enable collection of sewage from private properties to another jurisdiction's sanitary sewer system." On the issue of due process, which was premised on the alleged bias of one member of the Board, the court found no substantial evidence of
In a subsequent stipulation, the Attards agreed that their remaining causes of action "are barred and without merit as a matter of law" and consented to entry of judgment against them.
II DISCUSSION
The Attards contend (1) they have vested rights to pursue development under the permits or, alternatively, the County is estopped from prohibiting development under the permits, (2) the doctrine of sovereign immunity exempts the method of sewage disposal on their properties from County regulation, and (3) they were denied due process due to bias in the consideration of their appeal of the permits.
A. Vested Right.
The doctrine of vested rights is ordinarily applied when a local agency attempts to prevent the completion or use of a project on the grounds that the project, while lawful at the time a permit was issued, had been rendered unlawful by an intervening change in the law. In the classic case Avco Community Developers, Inc. v. South Coast Regional Commission (1976)
Directly pertinent to this matter, the Avco court held that "neither the existence of a partiсular zoning nor work undertaken pursuant to governmental approvals preparatory to construction of buildings can form the basis of a vested right to build a structure which does not comply with the laws applicable at the time a building permit is issued ." ( Id. at p. 793,
There is little doubt that the project approved in the Fish Ranch Road permit was unlawful, as was the project envisioned in the final plans for the Old Tunnel Road project. Both projects anticipated disposing of sewage by way of the Oakland sewer system. The Oakland Municipal Code requires any person performing any wоrk "for the purpose of discharging sewage into the city's sewer system" to obtain a permit for such activity from the city. (Oakland Mun. Code, § 13.08.040.) Not only had the Attards not obtained the required permit, Oakland confirmed in a letter to the County that they had not even applied for a permit. The Oakland stamp on their construction plans, which the Attards apparently represented to the County, implicitly if not
Yet even if the Attards had obtained consent from Oakland to use its sewer system, the provision of sewer services by Oakland would have been unlawful without further governmental action. As noted above, Government Code seсtion 56133 prohibits an agency from providing such services "outside its jurisdictional boundary" without permission from the LAFCo of the county in which the extension of service is proposed (Id ., subds. (a), (f); see Habitat & Watershed Caretakers v. City of Santa Cruz (2013)
In resolving the issue of vested rights against the Attards, we do not rely on the failure of EHD to grant final approval of the means of sewage discharge or water discharge. As the Attards contend with some force, the County controlled the approval process and under the "one stop" process, it was the County's responsibility to insure that all of the necessary approvals from different departments within the County were obtained prior to granting final approval of the permit. We need not address this issue, however, because, as discussed above, the project approved by these permits is unlawful because it depends upon a means of sewage disposal that is affirmatively prohibited by state law in the absence of LAFCo approval, which was never obtained.
As to the Old Tunnel Road prоject, as the trial court noted, the Attards had not undertaken any work in reliance on the permit prior to its revocation. They therefore fail to satisfy one of the fundamental requirements of the vested rights doctrine, substantial expenditures in reliance on the permit. ( Avco , at p. 791,
B. Equitable Estoppel.
To avoid the problem of illegality, the Attards invoke the doctrine of equitable estoppel in connectiоn with the Fish Ranch Road project.
Equitable estoppel against the government, in other words, is the exception, not the rule. "An additional requirement applies in cases involving equitable estoppel against the government. In such a case, the court must weigh the policy concerns to determine whether the avoidance of injustice in the particular case justifies any adverse impact on public policy or the public interest. [Citations.] ... Particularly in land use cases, '[c]ourts have severеly limited the application of estoppel ... 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
We conclude that the Attards have failed to demonstrate that this is the type of "extraordinary case" ( Smith v. County of Santa Barbara (1992)
Second, any hardship fails to override "the public policy that would be supervened by invoking estoppel to grant development rights outside of the normal planning and review process." ( Toigo , at p. 321,
C. Sovereign Immunity.
The Attards contend the County was precluded from denying their permits because their association with CalTrans insulated them from local regulation of their sewage disposal plans under the doctrine of sovereign immunity.
In general, "[w]hen [the state] engages in such sovereign activities as the construction and maintenance of its buildings, as differentiated from enacting laws for the conduct of the public at large, it is not subject to local regulations unless the Constitution says it is or the Legislature has consented to such regulation." ( Hall v. City of Taft (1956)
The Attards' claim of sovereign immunity fails because their discharge of sewage into the Oakland sewage treatment system is unrelated to any governmental function of CalTrans. There is little doubt that, in the absence of legislative consent, CalTrans is immune from local regulation in its construction and operation of the tunnel. The Attards' planned developments, however, are unconnected to these activities. Further, the specific activity the Attards claim to be free of local regulation, the treatment and disposal of their sewage, is unconnected to any CalTrans activity, sovereign or otherwise. Their sewage merely flows through a sewer line that also accommodates CalTrans sewage. The only reason the Attards are in a position to argue for sovereign immunity is that CalTrans consented to this flow as a quid pro quo for the Attards' re-construction of the tunnel sewage system. Perhaps that association would create immunity for the Attards' construction activities and the treatment of sewage generated by CalTrans, although the latter point is
Controlling here is Board of Trustees v. City of Los Angeles (1975)
D. Board Bias.
The Attards contend they were denied a fair hearing of their appeal as a result of the bias of one member of the Board, Gayle Uilkema.
The Attards' opening brief contains a description of activities purportedly undertaken by Uilkema to obstruct their development and revoke their permits. The description is unsupported by references to evidence in the
The due process standards applicable to a public body in these circumstances were established in
While we acknowledge the possibility that Uilkema's e-mail might demonstrate the type of bias proscribed by Nasha , we conclude that the Attards forfeited this claim when they failed to raise the issue of bias at the Board hearing and seek Uilkema's recusal.
When a litigant suspects bias on the part of a member of an administrative hearing body, the issue must be raised in the first instance at the hearing. ( Franz v. Board of Medical Quality Assurance (1982)
If the Attards did not learn of the facts underlying their claim of bias until after the hearing, they might have been justified in waiting until thе trial court proceedings to raise the issue. (See Niles Freeman Equipment v. Joseph (2008)
The judgment of the trial court is affirmed.
We concur:
RIVERA, J.
As to Section II. D (Board Bias) I concur in the result only.
STREETER, J.
Notes
The actual ownership of the Old Tunnel Road property is unclear. The administrative record reflects only that one Tamara Lewis, presumably the former name of Tamara Attard, is one of several owners of one of the parcels under 1984 grant deed. Because the County has not objected to the Attards' standing to pursue this action with respect to the Old Tunnel Road property, the issue of ownership is immaterial.
Bayseng was in the business of collecting and drying bay leaves and maintained a mailing address at the Old Tunnel Road property. The nature of Bayseng's operations at the property, if any, is unclear from the record.
The Attards also claimed before the Board to have spent $900,000 constructing a potting shed on the Fish Ranch Road property. Because the potting shed does not appear to require sewage disposal service, it is unclear whether its use is affected by the County's permit revocation.
See County ordinance §§ 420-6.303, subd. (a) [prohibits construction of any building requiring sewage disposal without permit for an approved system]; 414-4.202 & 420-6.305 [require any application for a building permit to be submitted for review and approval of the water supply and sewage disposal system]; 414-4.201 [requires property needing water supрly to obtain written approval from the health officer]. The County's motion for judicial notice of these and other ordinances is granted.
The evidence regarding the Attards' cooperation in disclosing the nature of their sewage connection to the County was in dispute. We do not rely on any purported bad faith by the Attards in reaching our conclusions and make no findings on the matter.
In their opening brief, the Attards did not argue that the Board abused its discretion in finding the permits to have been issued improvidently. Rather, they contend that they were entitled to pursue the permitted projects notwithstanding any concerns about the propriety of the permits' issuance. Although the Attards' argue in their reply brief that the decision to suspend the permits was not supported by the evidence, this argument was waived when it was not raised in their opening brief. (People v. Rangel (2016)
This continues to be an accurate statement of the law. (See Cоmmunities for a Better Environment v. South Coast Air Quality Management District (2010)
The Attards' sole argument against the application of section 56133 is that they were exempt from LAFCo approval under the doctrine of sovereign immunity. We address this argument below.
Because, as discussed in connection with the doctrine of vested rights, the Attards made no investment in reliance on the Old Tunnel Road permit, they fail to satisfy estoppel's requirement of detrimental reliance for this permit.
The Attards also spent $800,000 to upgrade the tunnel sewer system, but that expenditure was made prior to issuance of the permit, not in reliance on it.
While the case law clearly holds that a local agency cannot compel a state facility to accept solid waste disposal services from a particular provider, that is a different matter from the circumstances presented here: allowing the state agency to compel a local sewage disposal agency to accept and process sewage. State agencies have a sovereign right to be free of certain restrictions on their activities by local agencies. They do not necessarily have the right to involuntarily enlist local facilities for their own purposes.
In fact, the Attards' brief on appeal lacks any citation to evidence of Uilkema's alleged activities. The citation to the e-mail is contained in the Attards' memorandum of law filed in the trial court. Although we are not required to consider such evidence (Parker v. Wolters Kluwer United States, Inc. (2007)