Posted by: Patricia Salkin | September 6, 2017

CA Appeals Court Upholds Denial of Vested Rights and Equitable Estoppel Claims Where Plaintiffs Failed to Apply for Necessary Permit

Plaintiffs, Paul and Tamara Attard, desired to develop their two properties in Contra Costa County, but failed to obtain the necessary regulatory approvals. Because the properties were located well outside local urban limits, they were not served by any municipal sewage system. Although the Attards attempted to obtain County approval of two different means for individual sewage disposal on their property, they were unsuccessful. Despite this, the county issued the Attards permits to develop their properties, including a permit for construction of an 8400-square foot home. By the time the County discovered its error and notified the Attards, the Attards had made substantial progress toward installing a foundation for the new home on one of the properties. The County nonetheless revoked the permits, and this decision was affirmed by the county Board of Supervisors. The Attards then filed a petition for writ of mandate challenging the revocation. In the petition, they contended the County was precluded from revoking their permits under the doctrines of vested rights and equitable estoppel. The trial court denied the writ petition.

As to the vested rights claim, the applicable Oakland Municipal Code requires any person performing any work “for the purpose of discharging sewage into the city’s sewer system” to obtain a permit for that activity from the city. Here, not only had the Attards failed to obtain the required permit, Oakland confirmed in a letter to the County that they had not even applied for a permit. Moreover, the County’s alleged issuance of permits approving the Attards’ plans did not grant the Attards a vested right to pursue them, as that same Oakland letter stated that no county Local Agency Formation Commission (LAFCo) approval had been sought or obtained. This fact defeated the Attards’ vested rights claim, as Government Code section 56133 prohibits an agency from providing such services “outside its jurisdictional boundary” without permission from the LAFCo.

As to the equitable estoppel claims, the court first noted that in land use cases, “courts have severely limited the application of estoppel … by expressly balancing the injustice done to the private person with the public policy that would be supervened by invoking estoppel.” Here, while the Attards had invested approximately $550,000 installing foundation piers on their property, any injustice they suffered was mitigated by their failure to obtain the necessary approvals from Oakland and LAFCo and to disclose to the County the unpermitted nature of their proposal, prior to issuance of the permit.

The Attards lastly contended they were denied a fair hearing of their appeal as a result of the bias of one member of the Board, Gayle Uilkema. In an e-mail, Uilkema stated that “an illegal connection has been made to a CalTrans sewer in the Caldecott Tunnel without the necessary land use permits,” and claimed the Attards “have been bypassing the legal authority of Contra Costa County for many years.” While the court determined that Uilkema’s e-mail could potentially demonstrate bias, it held that the Attards forfeited this claim when they failed to raise the issue of bias at the Board hearing and seek Uilkema’s recusal.

Attard v Board of Supervisors of Contra Costa County, 2017 WL 3711765 (CA App. 8/29/2017)


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