City May Install Sewer Line in County Right Of Way Without County Permission

By William W. Abbott

County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___. The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48 inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54 inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment which involved County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court.

The City made two claims. First, that it possessed the inherent police power to construct in the County’s street. Alternatively, it argued that Public Utilities Code sections 10101 through 10105 gave it that authority. The Court of Appeal declined to accept the City’s ‘inherent power” argument, finding that sufficient authority in the Public Utilities Code supported the City’s action. In interpreting the statutory scheme, the appellate court recognized that cities have the express right to build utilities lines outside of its borders. (Public Utilities Code section 10101.) If the proposed line is to be located in another city, then sections 10102 and 10103 call for interagency review, with the option to go to court to resolve the necessity of the proposed use in the neighbor city right of way. However, the court concluded that these procedures do not apply if the affected right of way is a county, as a county is not a municipal corporation but is a political subdivision of the state of California. In those circumstances, the city can proceed when the alignment is necessary and convenient. The appellate court stated that the appropriate form of judicial review was ordinary mandamus, and that the decision of the approving city would not be overturned unless arbitrary or capricious, a very deferential standard. The appellate court concluded that the trial court had effectively reweighed the evidence, and failed to adhere to the necessary level of deferential review as to what was necessary or convenient. The matter was reversed and remanded to the trial court to apply the correct standard of review.

William W. 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.

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