Judge blasts Nevada County in ruling on Penn Valley building permit
May 23, 2014
A Nevada County Superior Court Judge has issued a harsh and potentially expensive ruling against Nevada County officials in a Penn Valley case involving a building permit on a ridgeline in Lake Wildwood.
The county’s actions in the case were “as troubling as they were improper,” said Judge Sean Dowling in a May 19 ruling granting a “writ of mandate” — or reversal of an earlier county permit denial decision — to Peter Lockyer and his wife Juliet Erickson.
Dowling, in granting the writ of mandate, has sent the application back to the county planning department for “a complete reprocessing of petitioners’ permit,” he says in his conclusion.
“Unfortunately, the record is permeated with distrust,” Dowling said in his conclusion. “Each side views the other as acting in bad faith.”
“Unfortunately, the record is permeated with distrust. Each side views the other as acting in bad faith.”
Nevada County Superior Court Judge Sean Dowling
A trial is set for July 22 to determine the amount of compensation to the Lockyers the county will now be obligated to pay for attorneys’ fees and for the portion of their land the judge said the county “took.”
That amount could be substantial, said Fran Cole, one of two candidates — along with Jedediah Biagi — seeking to unseat incumbent Nevada County District 4 Supervisor Hank Weston in the June 3 primary elections.
Cole, in a press release following the announcement of the ruling, claims Weston’s “failure” to investigate the issue after Lockyer and Erickson asked for his help was “a breach of the public trust.”
“Our elected officials owe the public they represent the highest duty to protect citizens against oppressive governmental acts,” Cole said. “If Supervisor Weston had taken appropriate steps then to remedy this situation, he could have protected the county from incurring the significant liability it now faces.”
Weston on Thursday declined to respond to any of Cole’s allegations, saying that the entire case was still in litigation. He referred all questions to Nevada County Counsel Alison Barratt-Green.
“There are three pieces of litigation against the county,” Weston said. “We can’t speak to any piece of litigation against the county.”
Neither Barratt-Green nor Biagi could be reached for comment Thursday.
Cole, meanwhile, acknowledged that she had received a $4,000 campaign contribution from the residents in question, Peter Lockyer and his wife Juliet Erickson of Lake Wildwood.
However, she said Lockyer was supporting her campaign “because he wants to see a change of leadership,” and not in connection with the case, Cole said.
“There is no conflict of interest here,” she said. “If I were elected, I would recuse myself on any decisions on this issue.”
Including the current case, Nevada County is a defendant in three lawsuits, all originally stemming from the county’s interest four years ago in installing a Verizon cellphone tower on Nevada Irrigation District property adjacent to Lockyer’s and Erickson’s land — and the couple’s opposition to it.
”We are pleased that the court is forcing Nevada County to do the right thing and respect our rights as property owners,” Erickson said of Dowling’s May 19 ruling. “We are disappointed it took so much time and money to get this result.
“Unfortunately, Nevada County leaders have done everything possible to help Verizon build a cell tower, including effectively taking our property to make it possible,” she said. “We hope our efforts will help other people avoid what we went through.”
Nevada County and Penn Valley officials have said in earlier stories in The Union that the cellphone service was so poor in the Lake Wildwood area that the tower was crucial for the neighborhood public safety and viability.
The lawsuits include:
— The first suit, filed by the Lockyers and now on appeal in the 3rd District State Court of Appeals, is of the county’s approval and granting to Verizon of a 48-foot-high cell tower permit, upheld by a trial court.
— The second suit, the subject of the current Nevada County Superior Court ruling, involves the county’s treatment of the Lockyers’ subsequent permit application to build a home with a garage and office building on the ridgeline on their land, nearby to the proposed cell tower site.
— The third action is a federal lawsuit alleging unequal treatment by the county toward principals involved in the cell tower permit as compared to principals in the Lockyers’ building permit case. That lawsuit is currently on appeal at the 9th Circuit Court of Appeals in San Francisco.
Among Dowling’s opinions in his May 19 ruling was that he found the earlier county planning decisions faulty in enforcing what is called a Visually Important Ridgeline ordinance.
“(The Lockyers) argue that the county failed to make any findings that the ridgeline on which petitioners propose to build their home is a Visually Important Ridgeline,” Dowling says. “The Court agrees.”
The judge also said he agreed with the Lockyers’ contention that there was no connection between the potential impact of their project and the county’s requirement for a permanent dedication of an easement on the Lockyers’ land.
“The permanent dedication is constitutionally infirm and constitutes a taking or an exaction,” he said. “The value of the taking is a question to be resolved at the trial.”
Further, Dowling said he also agreed with the Lockyers’ argument that the negative easement required by the county is “unconstitutionally vague and impossible to enforce,” he said.
Cole, in her prepared statement, claims that Weston could have avoided the lawsuit in the first place if he would have taken action to look into allegations in a March 2012 letter he received from Lockyer and Erickson.
The Lockyers wrote to Weston, whose district includes the Lake Wildwood area, to “express their disappointment about what they characterized as bullying, violation of their constitutional rights, evidence of false statements, improper decision making and illegal conduct,” according to Cole.
She said Weston sent a letter back to the Lockyers and declined comment, saying the matter was in litigation.
However, she says the Lockyers had not yet filed their building permit suit and Weston was likely confusing their case with the cell tower lawsuit filed earlier.
“In his letter (to the Lockyers) Supervisor Weston does not indicate that he would look into or investigate these allegations of wrongdoing — he merely notes that he will forward the property owners’ letter on to county counsel,” Cole says.
“Our elected officials owe the public they represent the highest duty to protect citizens against oppressive governmental acts,” she adds. “I find his failure to exercise due diligence in this matter a breach of the public trust.”
A further hearing in the case is set for 9 a.m. Tuesday in Nevada County Superior Court.
To contact Staff Writer Keri Brenner, email email@example.com or call 530-477-4239.
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