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March 29, 2013
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Federal court dismisses Penn Valley couple’s claim against Nevada County

A federal judge has dismissed a lawsuit filed by a Penn Valley couple against Nevada County having to do with an ongoing dispute over the approval of a cell phone tower.

Peter Lockyer and Juliet Erickson had filed the suit against Nevada County in connection with a 48-foot cell phone tower that was approved for construction on a Nevada Irrigation District-owned parcel next to the couple’s property on a ridge overlooking Lake Wildwood.

The suit, filed Dec. 7, 2012, alleged that the county failed to provide the couple equal protection under the law as mandated by the 14th amendment of the United States Constitution.

In an October decision, the Nevada County Board of Supervisors had denied the couple’s two appeals; it approved the Verizon cell tower project, despite the structure protruding slightly above a ridge line, while simultaneously denying the couple’s plans to build an office on the grounds that it protruded slightly above the same ridge line.

Planning Director Brian Foss said during the appeal that the county was following codes and that a separate section of code applies to towers and communications structures, while another section of code applies to residential structures, which accounts for the perceived inequality in how the department applied laws.

Erickson and Lockyer perceived the decision as the county failing to apply its laws equally to each party. The couple’s attorney, John Bilheimer, further characterized the county’s order to keep vegetation and canopy intact on the crown of the ridge line as property seizure.

“The purpose of such restrictions was and is to provide cover for a privately owned and operated cell tower on NID’s property,” the complaint read. “Such purpose is neither a substantial purpose nor a legitimate government purpose.”

The lawsuit was filed locally in Nevada Superior Court, but was moved to federal court in Sacramento at the request of the county. The complaint was amended in December, and the county subsequently filed a motion to dismiss that amended complaint.

Lockyer and Erickson argued that the county denied them equal protection, since it applied a different definition of “ridgetop” to the Verizon application than it did to their application.

Their complaint further argued that they constituted a discriminated-against “class of one” and that the irrationality of the county’s actions was motivated by ill will and animus toward the couple.

Nevada County’s counsel, however, argued that any alleged retaliation was a creative portrayal of the facts by the plaintiffs.

“Plaintiffs have rejected the findings reached through a deliberative appeals process that afforded them a full and fair opportunity to be heard … and have reframed the denial of their appeals as a violation of equal protection,” wrote Deputy County Counsel Scott McLeran.

U.S. District Judge John Mendez agreed with the county, granting its motion to dismiss the case Tuesday.

Mendez noted that Verizon initially applied to erect a cell tower in 2010, which was opposed by a number of homeowners, including the Lockyer and Erickson; that application was turned down. In March 2011, the couple applied for a permit to construct a house and garage on a vacant parcel. Because the roof would reach 19 feet above the ridgeline, the plaintiffs were required to submit a management plan.

In April, Verizon submitted a new cell phone tower application along that same ridgeline, and were not required to submit a management plan. That application was approved, and an appeal by Lockyer and Erickson of that approval was rebuffed by the county’s board of supervisors.

Mendez found that the plaintiffs and Verizon sought distinct permits to build different structures, which were subject to different requirements under the county’s Land Use and Development code.

“Plaintiffs are not similarly situated to Verizon,” Mendez wrote. “Plaintiffs cannot allege that they were intentionally treated differently from others similarly situated.”

Mendez dismissed the federal equal protection claim without leave to amend their complaint. He also declined to address the remaining state law claims, adding that the claims can be refiled in state court.

Mendez noted that McLeran failed to comply with an order on page limits and ordered county counsel to pay a $100 sanction.

Lockyer declined to comment Friday afternoon; the couple’s attorney did not return a call for comment.​

To contact Senior Staff Writer Liz Kellar, email lkellar@theunion.com or call 530-477-4229. Staff writer Matthew Renda contributed to this report.


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The Union Updated Sep 27, 2013 03:29PM Published Apr 2, 2013 11:24AM Copyright 2013 The Union. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.