Penn Valley ridgeline appeal denied 4-1
August 15, 2014
Nevada County appears to be heading for a contentious and possibly expensive civil trial, after Tuesday's denial of an appeal made by a Penn Valley couple who wants to build a garage and office on their ridgeline property.
Nevada County Superior County supervisors voted 4-1 to deny the appeal by Juliet Erickson and Peter Lockyer in the four-year-old case that also involves a Verizon cellphone tower under construction on Nevada County Irrigation land adjacent to their property.
The denial means that the parties will return to court Aug. 25 to set a date for a trial to decide how much in damages would be due to the Penn Valley couple.
According to their co-counsel Dennis Viglione, Erickson and Lockyer at minimum are due compensation for the three years during which their property was under threatened mandate of a deed restriction.
"They couldn't build on it; they couldn't sell it during that time," Viglione said. "Who would buy a property in litigation over a deed restriction?" Other expenses at issue in the trial could be attorneys' fees, appeal filing fees or other fees, he said.
Erickson and Lockyer appealed the county's revised management plan because it still constituted a "taking" or "inverse condemnation," due to a deed restriction that requires certain trees be maintained to protect a "visually important ridgeline."
County planners revised the management plan as ordered in a scathing May 19 ruling against the county by Nevada County Superior Court Judge Sean Dowling. Dowling, in the ruling, said the deed restriction had the effect of a "taking," and sent it back to county planners for revision.
The Lockyers contend that the main reason for the deed restriction was to protect trees for a "background canopy" for a cellphone tower under construction by Verizon on Nevada Irrigation District property adjacent to the Lockyers' land. The county claims, however, that the deed restriction is to protect the "visually important ridgeline" by screening any proposed construction.
On Tuesday, Supervisor Hank Weston, whose district includes Penn Valley, asked staff to reduce the size of the deed-restricted area. But the Lockyers' co-counsel Alan Haley said he was not impressed by the reduction in area and said it was still a "taking."
"All this last-minute juggling is just exacerbating the situation," Haley said. "They're just making things up on the fly."
Haley said the county's insistence on preserving the "visually important ridgeline" was just a cover for the real issue.
"It's obvious that the cell tower is driving this whole thing," Haley said. "That's what we will be taking to the judge."
In addition to Weston, the other "yes" votes were supervisors Nate Beason, Ed Scofield and Terry Lamphier. Beason said he intends to appeal Dowling's ruling because he did not agree that the deed restriction was a "taking."
Supervisors have already filed a writ of mandate with the Third Circuit Court of Appeals in Sacramento asking that Dowling's ruling be reversed, even before it goes through all the channels and is appealed. No word was available yet on whether the appeals court would accept the writ and review the case.
Supervisor Richard Anderson on Tuesday cast the sole "no" vote on the appeal denial, saying that he didn't think the Penn Valley ridgeline off Pleasant Valley Road was striking or beautiful enough to meet the county's code standard to merit designating it as the county's first "visually important ridgeline."
"I've traveled widely in California and the West," Anderson said. "This ridgeline is not that different from the one right next to it."
Further, he noted that the ridgeline already contained two large NID water tanks and a separate home.
"I dislike ad hoc decisions that ignore or misread the code," Anderson said. By designating the Penn Valley site as the county's first "visually important ridgeline," he said the county was "setting the bar too low."
County Planning Director Brian Foss said planners were designating the site as a "visually important ridgeline" in the wake of a public outcry over Verizon's initial 88-foot-high cell tower permit application several years ago. At the time, residents objected to the tower because they said it would ruin a visually important ridgeline, he said.
As a result of the residents' objections, the new Verizon permit allows for a 48-foot-high cell tower. A separate lawsuit on the cell tower has been filed by the Lockyers and is still pending.