By William W. Abbott
Sometimes, the moral of an appellate court decision is hard to find. In this case, I think it is buried in the footnotes. Many cities and counties now use administrative procedures including monetary citations as part of zoning and building code enforcement. Procedurally, a party subject of an adverse order has two avenues of appeal. First, a de novo appeal can be filed and heard by the superior court, or as illustrated in the recent case of Martin v. Riverside County Department of Code Enforcement (September 19, 2008) 2008 Cal.App.Lexis 1444, a challenge via a petition for writ of mandate serves as an alternative remedy. (Gov. Code § 53069.4(b)(1).)
The Martin case involves the replacement of a spillway, washed out by storm conditions, located in a blue line stream on Martin’s property. After the washout, Martin had received FEMA funds for repair costs but failed to obtain a county grading permit for the work he completed on the spillway. The County of Riverside (“County”) brought a code enforcement action with a $500.00 enforcement citation, resulting in a hearing before an administrative officer, who, after hearing the evidence, levied a $500.00 fine. Martin, on his own, appealed. The trial court, and subsequently the Court of Appeal, Fourth Appellate District affirmed the County’s action.
Martin wove an interesting argument, asserting a number of claims. First, Martin declared that the Department of Fish and Game (“DFG”) laws preempted County regulation, alleging that the County ordinance on grading permits was in conflict with the DFG statute (Fish & G. Code § 1600 et. seq.) establishing requirements of a Lake and Streambed Alteration Agreement. Secondly, Martin held that he was not required to obtain a permit from the County, citing an emergency exemption under DFG Code section 1610 and Public Resources Code section 21060.3. Third, Martin asserted that the spillway was a private road, and therefore subject to exemption from the County ordinance. Lastly, Martin also argued that the amount of fill he used did not meet the requisite threshold under the County ordinance resulting in an exemption to the law. The courts disagreed with all four of Martin’s arguments.
Fish and Game Code v. County Ordinance
The courts held that there was no conflict between the DFG law and the County ordinance because a County’s grading ordinance originates from the State Housing Law, which requires cities and counties to adopt minimum building standards, including those regarding grading and excavation. Thus, the County ordinance is of equal dignity and authority with the DFG Code, (Health & Saf. Code § 17910 et. seq), and accordingly, there was no preemption of local authority through state enactment. The courts also observed that the DFG application/notification requirement acknowledged the need for the applicant to obtain local permits.
Martin stated that the damages to the spillway constituted an emergency under Public Resources Code section 21060.3, because the severe rains were of a “sudden and unexpected occurrence” subsequently denying him access to a mobilehome located on the rear portion of his property. Martin argued that a County grading permit was not required because the circumstances fell under the emergency exemption clause under DFG Code section 1610, and that the exemption, coupled with the grant from FEMA, constituted permission to proceed with the repairs.
The courts however disagreed with Martin’s classification theory stating that “there was no emergency because Martin did not repair the spillway for seven months and because there were two residences on the property, the mobilehome being a secondary residence with alternate access.”
Private Road Exemption
Martin’s claim that he was exempt per County ordinance from obtaining a grading permit because the spillway was considered an existing road was also rejected. The Riverside County Ordinance No. 457, section 4, subdivision (j)(2)(10) reads in part:
No person shall conduct any grading or clearing of any kind without first obtaining a grading permit from the building official except when the grading or clearing results in, is performed in connection with, or is for the following exempt work categories:…10. The maintenance of existing private roads by private individuals or their agents, including private roads used exclusively in connection with an agricultural use, but not the construction or widening of such roads.
The courts found that Martin’s private road exemption claim did not apply as the spillway served as only one of two access roads to the rear portion of the property, and Martin failed to repair the alternate road when it was previously damaged. The court’s reasoning is not entirely clear, as the facts suggest that the spillway met the definition of a roadway, and that there was no available alternative existing access to the mobilehome.
Excavation Threshold Exemption
Martin also argued that the amount of fill did not meet the requisite threshold under the County ordinance, however, the trial court found the County’s mathematical calculation to be more probable, which made the activity subject to county regulation. Moreover, the threshold relied upon by Martin was for excavation, and the issue of the spillway reconstruction dealt with fill, a critical distinction.
Don’t Kick a Sleeping Dog
Perhaps the more important lesson of the Martin case involves footnote 6 of the opinion which discusses the County’s response once Martin elected to challenge the administrative citation: “The County filed a cross-complaint for nuisance, injunctive relief, and damages concerning the unauthorized spillway and Martin’s operation of a convenience store on his property.” If Martin was upset over a $500.00 citation, I can imagine his feelings once he faced the County’s legal fusillade. It rarely pays to kick a sleeping dog. Sometimes it is better to write the check and move on.
Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.