Nevada County judge denies new trial in Penn Valley ridgeline permit case | TheUnion.com

Nevada County judge denies new trial in Penn Valley ridgeline permit case

Keri Brenner
Staff Writer

A Nevada County judge ruled in favor of a Penn Valley couple seeking a county building permit on a ridgeline above Lake Wildwood, sending the case toward a possible trial later this year.

In the ruling issued March 6, Nevada County Superior Court Judge Sean Dowling denied defendant Nevada County's motion for a new trial, motion for reconsideration and motion to vacate judgment in the case involving plaintiffs Peter Lockyer and Juliet Erickson.

Instead, Dowling, who has retired but who is completing work on the case over which has presided for four years, upheld his earlier opinion that Nevada County was trying to impose a conservation easement as a condition of the couple's permit approval. He said a conservation easement was not allowed to be part of a permit requirement, according to county code.

He said the couple have a right to have the permit issued without any restrictive deed, as was previously required.

“Dowling told them (the county) three times what they’ve done is wrong. They keep trying to do it anyway.”Allan Haleyattorney representing the Lockyers

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"Dowling told them (the county) three times what they've done is wrong," said attorney Allan Haley, representing the Lockyers. "They keep trying to do it anyway."

County Counsel Alison Barratt-Green said Friday the county does not intend to seek a writ at this point, and will consider an appeal "at the appropriate time."

"The court's order is not a final judgment, so the request to issue a building permit without the management plan conditions is premature," she said. "However, the county is willing to issue a permit when the Lockyers comply with all current building code requirements and the existing management plan conditions."

Attorney Michael Colantuono, who is representing Nevada County in the case, said he has filed a motion to split the trial into two sections — one part a jury trial to decide on how much the county must compensate the Lockyers for the period that their property was in legal limbo, and the other part to argue the merits of the case.

A hearing on Colantuono's motion, which Haley said he opposes, is set for Friday, April 10.

The current ruling is part of the Lockyers' four-year-long dispute with the county over the building permit and a related issue of the installation of a Verizon cell tower on adjacent Nevada Irrigation District property at the ridgetop along Pleasant Valley Road.

The county's prior permit approval had included a deed restriction that the Lockyers maintain an area of tree screening on their property because their home, the county said, would be built on a so-called "visually important ridgeline" as per county ordinance.

The Lockyers alleged that the screening was actually for the cell tower and that the location was only designated a "visually important ridgeline" when the cell tower permit application was being processed.

The cell tower, which county officials said was desperately needed for public safety and adequate coverage for Lake Wildwood residents, was built and put into operation last year.

On May 19, 2014, Dowling ruled that the county's deed restriction was in effect an unconstitutional "taking," and ordered county planners to rework it, which they did. The Lockyers, however, disagreed with the revised deed restriction and appealed the issue to the Nevada County Board of Supervisors, where the appeal was denied.

"We've been offering for a year to meet with them (to negotiate the case), but they have refused," Haley said.

"At the board's direction, county staff attempted to meet with the Lockyers to resolve this issue before a final decision was made on their management plan," Barratt-Green said. "The Lockyers declined to meet and chose to pursue aggressive and costly litigation instead. The county has been and continues to be open to a reasonable resolution of this matter, but we have yet to receive an appropriate offer to resolve the case."

The Lockyers, however, claim this is not true.

Arguments in the case continued through the end of last year, when Dowling decided that the county's deed restriction actually was, in effect, a conservation easement.

He upheld that opinion in his March 6 ruling by returning to the "taking" language.

"The VIR ordinance authorizes a management plan, but contains no language authorizing the exaction of a restrictive deed," he said. "County points to no other authority for the imposition of a deed, other than general regulatory power.

"Lacking authority to impose a deed as a condition for issuance of the petitioner's permit, the deed fails to effectuate a substantial governmental purpose and amounts to an unconstitutional taking," Dowling said. "County shall issue all permits without the necessity of the deed required by the management plan."

Haley said the Lockyers asked the county to issue the permit after Dowling's first statement about the conservation easement in his Dec. 31 ruling, but were denied. Colantuono said this week the permit issuance needed to wait until the case was decided.

Haley said he was baffled that the county was continuing to spend money to prolong the case.

According to estimates last year, Colantuono's contract was already costing up to $175,000, while County Counsel Alison Barratt-Green, who had worked on earlier parts of the case, estimated she logged 600 hours in in-house staff time so far. The Lockyers say they will have spent at least $1 million on legal fees by the time the issue is settled.

"The county has not prolonged this situation," Barratt-Green said. "The county approved the Lockyers' building permit and management plan in 2011. Since the conditions in question do not affect the building site on the property, the Lockyers could have pulled a building permit at any time while still challenging the conditions."

According to Barratt-Green, the county's land use policies exist for the benefit of the community as a whole and those policies are enforced through reasonable conditions of approval.

The county is defending this case to protect the scope of its land use authority to protect its rural quality of life for the benefit of all, not just a chosen few, she said.

"The whole case turns on the fact that the house (the Lockyers want to build) is below the tops of the trees on the ridge and no one would see if from below," Haley said. "There was no reason for this to go to a management plan or anything else."

Haley said the county "already allowed another house — and the two NID tanks — to be built on the ridge without screening.

"Both of them can be seen from below," Haley said. "The Lockyers wanted to build on the other side, behind the ridge, where it could not be seen."

To contact Staff Writer Keri Brenner, email kbrenner@theunion.com or call 530-477-4239.