Allan Haley: A response to the county and its counsel
At a recent meeting of the Board of Supervisors, the first item was the addition of another $100,000 to the county’s litigation budget, making the total spent for an outside law firm on just one case equal to $275,000.
Some supervisors, to put it mildly, did not take kindly to criticism of their spending this money in the public comment period. Characterizing some of the comments as “egregious fiction” and “slander,” supervisors demonstrated their strong belief in the county’s position in this protracted land use litigation, pending in Nevada County Superior Court under Erickson vs. County of Nevada (No. 13-079389).
As one of Juliet Erickson’s and Peter Lockyer’s attorneys, and thus a recipient of some of the charges made (our tactics were termed “very, very aggressive,” and we have supposedly made it “difficult to get even routine agreements”), I feel called upon to provide some of the perspective missing from the responses given to the public. As Chairman Scofield sagely noted, “There really (are) two sides to this story.”
What is this case about? To listen to county counsel, it is a case of statewide concern, because it involves “our county’s ability to control our land use, and to make sure we are able to impose reasonable conditions for the benefit of the community …” Shall we see just what conditions the county wanted to impose on the plaintiff landowners in the case, who simply applied in March 2011 for a routine building permit?
Condition 2 of the County’s approval, imposed in August 2011, read in part as follows:
A deed restriction, prepared by the Nevada County Planning Department, shall be recorded … prohibiting the removal of trees identified on this parcel that specifically screen the proposed structures … The deed restriction shall restrict the removal or thinning of these trees unless an evaluation is made by a qualified biologist … that the tree is dead or dying…. The deed restriction shall also provide … for replanting any dead or dying trees at a ratio specified by the biologist and in the general location of the removed tree. This restriction … shall permanently bind the owners herein, their heirs and successors in interest for the benefit of the citizens and property owners in the County of Nevada.
The county told the Lockyers it needed this condition to protect what it claimed it had earlier designated as a “Visually Important Ridgeline” (“VIR”) during a hearing that denied permission to erect an 48-foot cell tower in front of the ridge, behind which the Lockyers planned to put their home. Even though the planning director later swore in an affidavit in the case that the designation had been made before the Lockyers applied for their permit, it later came out that this was false. No such designation had been made – but the county demanded the Lockyers accept a permanent restriction on their land as though it had been made.
Two years after the Lockyers’ application, the board adopted a resolution calling the ridge a VIR. Shall we take a look at what so far is the only VIR in the county’s history ever to have been so singled out? Above is a photograph of it, taken from below on Pleasant Valley Road
Note the two large NID water tanks, and note the unscreened house to the left. The red rectangle indicates where the Lockyers planned to build — behind, and well below the tops of, the trees that line the crest of the ridge. These are some of the trees that the county demanded the Lockyers and their successors “permanently” agree to preserve at their own expense.
Missing from this 2011 picture is Verizon’s recently installed 48-foot cell tower, erected in front of the water tanks. How can a cell tower be allowed on such a unique, Visually Important Ridgeline? Because the county, in order to avoid an equal protection claim by the Lockyers, threw its VIR ordinance under the bus by deciding it would not apply to cell towers! Had it applied its VIR ordinance to Verizon, for example, the county could not have approved the location for their tower.
That’s right. For the county, “visually important” means “including cell towers, water tanks and unscreened homes” — just not homes that will be fully hidden behind trees. And this is the “ability to control our land use” for which the county is so freely spending our tax dollars.
I want to dispel one other myth alleged at the supervisors’ meeting: that while the county “is always willing to talk,” the Lockyers have steadfastly refused to negotiate.
The Lockyers’ first proposal for a reasonable management plan was rejected by the county, which demanded a restricted area three times as big. When I met with the county in a series of discussions to try to negotiate down the size of that area, the planning staff eventually decided to double its size yet again. At considerable expense, the Lockyers thus learned their lesson: “negotiate” for the county means “don’t resist, or we’ll make things worse”!
The Lockyers also offered to discuss settling the case after Judge Dowling ruled last year that Condition 2 above imposed an unlawful taking of the Lockyers’ property — they were turned down. They offered again at a meeting with county counsel and the planning director, but were told that it was not the proper occasion. And their latest offer to talk was rejected for the reason the county wanted to wait to see if it could do better in court.
And now we are $275,000 of the county’s money further into the case, with still no gains for the county to show from it, and no end in sight. The total bill is likely to exceed $1 million before the case is finally resolved on appeal — and if unsuccessful, the county will have to reimburse the Lockyers’ attorneys’ fees, as well.
The desire “to control (other peoples’) land use,” and to preserve already-spoiled ridgelines by calling them “visually important,” may carry a multi-million-dollar price tag.
Allan Haley is a Nevada City attorney.
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