Nevada County plans legal counter-attack in Penn Valley cell phone case
June 13, 2014
Nevada County is planning a strong legal counter-attack after being hit with a negative ruling last month in a cell tower dispute in Penn Valley.
Nevada County Counsel Alison Barratt-Green said the county board of supervisors authorized her in closed session this week to file a petition for a writ of mandate, seeking to reverse an opinion issued May 19 by Nevada County Superior Court Judge Sean Dowling.
The petition, to be filed with the 3rd District Court of Appeals in Sacramento, is similar to an appeal, but is filed before a case is completed. With a writ, the Court of Appeals has the discretion to accept the petition and hear the case, or decline the petition and not hear it.
Dowling in his ruling said the county acted improperly – and performed an unconstitutional "taking" – in a dispute over a home building permit sought by Peter Lockyer and his wife, Juliet Erickson. The home construction was planned near the site where the county wants to build a cell tower.
Dowling in his ruling ordered the county planning department to redo the couple's permit application and stated the county would be obligated for an unspecified amount in damages for its handling of the permit.
"We are baffled by the county's decision to petition for a writ of mandate against Judge Dowling's ruling that this was an unconstitutional taking," Erickson said Thursday. "They technically have no right to appeal.
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"There isn't even a guarantee their petition will be heard," she said. "Under these circumstances, the more they prolong, the higher the potential damages could be.
"I guess this is what you do when you have access to unlimited taxpayers funds," Erickson said.
The couple's property adjoins a Nevada Irrigation District site where the county has authorized a permit for a cell phone tower. Contractors have already started building the tower, even though Lockyer and Erickson have a separate appeal filed in the 3rd District Court of Appeals in a lawsuit challenging the county's granting of the cell tower construction permit.
Barratt-Green said the cell tower company was moving ahead with construction despite the risk that the appeal would be upheld because "there is a documented public safety risk" in not having adequate cell phone reception in the area.
"We're very confident of the likelihood that the appeal will be denied," Barratt-Green said.
"There is not a stay in place (to prevent construction)," she added.
"Unless the court issues a stay, they can proceed at their own risk."
Penn Valley Fire and other public safety officials have previously said that they need better cell phone reception in the event of an emergency.
Erickson said she is aware of the construction since it adjoins her property.
"Yes, it is next to our house so we hear the construction going on every day," she said.
"We asked a surveyor on the site about the timing and he said he was told it was a 'rush job,'" she said.
If the petition is granted, it will be the third appeal or legal action pending on the issue, ongoing since at least 2011.
Besides the two actions in 3rd District Court of Appeals in Sacramento, another appeal on the cell tower issue is also pending in the federal 9th District Court of Appeals in San Francisco.
"The board of supervisors were aware that Verizon had intervened twice in the approval of our house plans, which still haven't been approved," Erickson said.
A trial on the lawsuit in Nevada County Superior Court – the suit that was the subject of Dowling's ruling – had been set for July 17. It was not immediately clear whether the filing of the petition for the writ would affect the trial date.
To contact Staff Writer Keri Brenner, email firstname.lastname@example.org or call 530-477-4239.
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