Appeal to be heard in cell tower case
August 11, 2014
Arguments over the definition of a "visually important ridgeline" in Penn Valley are on tap at a hearing next week before the Nevada County Board of Supervisors.
The hearing, scheduled for 1:30 p.m. Tuesday at the county's Eric Rood administration building in Nevada City, is on an appeal filed by Juliet Erickson and Peter Lockyer in a four-year-old lawsuit.
The Lockyers are suing over Nevada County's restrictions on their building permit application for a home and detached office-garage on their property along the ridge northwest of the Lake Wildwood subdivision. The property is adjacent to a Nevada Irrigation District site where the county has allowed Verizon to build a cellphone tower.
Nevada County planners have said the ridgeline is designated "visually important" and therefore Erickson and Lockyer must agree to a management plan with deed restrictions, such as not removing certain trees south of their property. The couple claim the restrictions are to preserve a "background canopy (of trees)" for the cell tower.
“We are hopeful the supervisors will decide to do the right thing and protect our property rights – and, in doing so, ensure other county residents are not faced with the same government disregard as we are experiencing.”
Nevada County Supervisor Court Judge Sean Dowling, in a May 19 ruling, blasted those requirements, saying the planners' deed restrictions were akin to an "unconstitutional taking." He ordered planners to come up with a revised management plan, which they did on July 15.
According to the county's staff report, the revised plan reduces the tree-removal area by one-third "to provide more flexibility to the applicants while still providing the minimum necessary screening to protect the 'visually important ridgeline.'"
Erickson and Lockyer, however, say the revised management plan still includes unacceptable deed restrictions and still constitutes a "taking."
"We are disappointed the county planning department continues to make decisions to take our property in a way that is in strict violation of the U.S. Constitution," Erickson said. "We are hopeful the supervisors will decide to do the right thing and protect our property rights – and, in doing so, ensure other county residents are not faced with the same government disregard as we are experiencing."
Erickson and Lockyer also claim the whole premise of "visually important ridgelines" is flawed and has been applied unequally between their permit application and Verizon's cell tower project.
"No inventory of 'visually important ridgelines' in Nevada County has ever been prepared; no criteria for designating such ridgelines have ever been developed," says the appeal, filed July 25. "Consequently, there are no protections against bureaucratic caprice and fantasy such as are on display here, and aimed at the Lockyers and their project."
The county's staff report and revised management plan, however, still uphold the need for protecting a 'visually important ridgeline.'"
"Even without the cell tower proposal on this ridgeline, the same tree protection area would be necessary to screen the proposed residence," the staff report says.
The Lockyers claim the same requirements have not been imposed on Verizon's cell tower project, which, according to the appeal, "is allowed to erect its tower using the tree line as the ridgeline, but the Lockyers have to agree to a burdensome deed restriction because the county in their case uses the ground elevation of the ridge as the 'ridgeline.'"
The county disagrees.
"Staff is unpersuaded by the appeal on this point for two additional reasons: screening from more than Pleasant Valley Road is necessary," the staff report says. "As demonstrated by the cell tower coverage map, this site is highly visible from a broad swath of western Nevada County."
Nevada County supervisors in June approved a challenge to Dowling's ruling in the form of a writ of mandate the county filed with the Third District Court of Appeals in Sacramento, asking the appeals court to reverse Dowling's ruling.
Nevada County Counsel Alison Barratt-Green said she had received no word on the writ as of this week. Under terms of a writ, the Third District Court of Appeals is not obligated to review the case and is under no specific timeline to either take it on review or reject it.
In their appeal, Lockyer and Erickson are asking the supervisors to:
— Reinstate the building permit application "with no penalties or further requirements."
— Issue the permit for their home and office/garage as per the last version of their plans approved by the planning department.
— Refund the Lockyers' appeal fees.
— Instruct Barratt-Green to negotiate "full compensation for the extra surveyor's, architectural, appraisal and attorneys' fees they incurred as a result of the attempted imposition of unconstitutional conditions of approval."
— Adopt a "public resolution of apology for the manner in which the county has dealt with the Lockyers for the past four years."
"It is simply ludicrous and incredible to proclaim, as the very first 'visually important ridgeline' ever designated within Nevada County, a viewshed that is already substantially and irrevocably blemished with two giant water tanks and a 48-foot cell tower," the Lockyers' appeal concludes. "And now that one cell tower has been allowed there, the county's cell tower location standards cannot prevent additional towers from being built there in the future."
The county has hired attorney Michael Colantuono, whose office is in Penn Valley, to assist in the case. Colantuono said the next scheduled court date, other than the appeal hearing next week, is a case management conference on Aug. 25.
To contact Staff Writer Keri Brenner, email firstname.lastname@example.org or call 530-477-4239.
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