Appeals court denies bid to review Nevada County ridgeline permit case
August 27, 2014
Nevada County has lost its bid to have a state high court review a lower court ruling involving a building permit on a ridgetop in Penn Valley.
"The petition for writ of mandamus with request for stay is denied," says the order sent out Tuesday by the Third Circuit Court of Appeals in Sacramento in the four-year-old case pitting property owners Juliet Erickson and Peter Lockyer against Nevada County.
The order means that a May 19 ruling by Nevada County Superior Court Judge Sean Dowling, in which he blasted the county for its treatment of the Lockyers, will stand.
"We are pleased but not surprised that the appeal court summarily rejected the county's appeal of Judge Dowling's ruling," Erickson said Tuesday.
“We are pleased but not surprised that the appeal court summarily rejected the county’s appeal of Judge Dowling’s ruling.”
Nevada County Counsel Alison Barratt-Green said it was "always a bit of a long shot" to file a writ petition.
"We really regret that this case will continue," she added.
If granted, the writ would have allowed the appeals court to review the case prior to completion of a lengthy appeals process. However, an appeals court is not obligated to accept any writ petition.
The denial also has no reflection on the merits or the law of the case.
The appeals court action means the case goes back to Nevada County. The next step is a Sept. 15 case management conference in Nevada County Superior Court, where the two sides will try to work out a compromise or, if that's not possible, prepare for trial.
On Aug. 12, Nevada County supervisors voted four to one to deny an appeal filed by the Lockyers of a revised management plan prepared by the county planning department.
The Lockyers contended that, even with the revisions, the management plan still was the equivalent of a condemnation or "taking" of their land because it set forth a deed restriction requiring the couple to maintain a cluster of trees that would screen their proposed ridgeline construction — a two-story office/garage.
Dowling, in his ruling in May, said the county planners' requirements for maintaining the trees were "as troubling as they were improper."
Barratt-Green said the county disagreed.
"We remain confident of our position and we expect to persuade the trial court of that position," she said. "This case really involves the county's efforts to balance the rights of the Lockyers to build on their property with the rights of neighbors to preserve screening for a scenic ridgeline.
"It's only because they insist on building a two-story structure on top of a ridgeline and refuse to maintain trees to screen it that we're in this situation," she added.
She said if the couple were to move their proposed office/garage to another spot on their land or agree to maintain the trees, "they could build tomorrow."
The Lockyers, however, at the Aug. 12 hearing, said the case was really all about the cell tower that Verizon has a permit to build on the ridgeline adjacent to the Lockyers' property. Construction on the tower is nearly complete. The Lockyers had attempted to obtain a court order stopping construction, but lost in trial court. They have appealed that decision. Their appeal will be heard Sept. 19 by the state's Third District Court of Appeal in Sacramento.
The Lockyers say the county's desire to preserve screening for the cell tower is the real motivation — and not preservation of what the county has determined is a "visually important ridgeline."
They contend that the county arbitrarily used county code to designate the area as the county's first "visually important ridgeline" to further the construction of the cell tower.
Supervisor Richard Anderson, who cast the sole "no" vote on the Lockyers' appeal, said he voted that way because he thought the ridgeline in question was fairly ordinary and not worthy of being designated as the county's first "visually important ridgeline."
Barratt-Green on Tuesday disagreed that the motivation was to screen the cell tower.
"The cell tower doesn't fit into this case, from our perspective," she said.
The ridgeline in question, off Pleasant Valley Road, overlooks the Lake Wildwood gated residential community, where cellphone reception is said to be very poor. County emergency officials in Penn Valley have complained that better reception is needed for public safety.
To contact Staff Writer Keri Brenner, email firstname.lastname@example.org or call 530-477-4239.
This story was updated on Wednesday, Aug. 27, 2014, to clarify the status of the cell tower construction and to add information on the pending appeal hearing on Sept. 19.