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County Abatement Proceedings Withstand Landowner's Challenge

A Contra Costa County order directing a water ski club to remove 28 unpermitted dwelling units plus docks and accessory structures has been upheld by the First District Court of Appeal.

Despite the fact that some of the structures have been in place for 40 years, the county has the authority to order their removal, the court ruled. The court rejected the ski club's argument that the abatement order was a taking of private property and violation of constitutional rights, and the court denied the club's request to limit the county's abatement order.

Golden Gate Water Ski Club purchased Golden Isle a 5-acre island zoned for agriculture in the Sacramento-San Joaquin River Delta in 1966. Without obtaining permits, the club built or installed 15 dwelling units in the form of cabins and travel trailers, and also erected decks, docks and other structures. Contra Costa County notified the property owner that development violated land use regulations and advised the club to apply for a rezoning and trailer park permit. The club filed an application in 1971, but the application foundered for years while the club and county went back and forth. At the county's urging, the club withdrew the application in 1979. Apparently, the situation was quiet for a while until the county in 2003 posted a notice of violation that the ski club violated a variety of land use, health, sewage and floodplain laws. By that time, the development had grown to 28 dwelling units and 28 docks.

The club made a number of proposals to legalize the development, but the county found none of the plans to be viable. In February 2005, the county code enforcement officer issued the ski club an order to abate a public nuisance by demolishing and removing all structures from Golden Isle. The club appealed to the Board of Supervisors, which upheld the order and told the club to remove all structures within 90 days.

The club sued, asking the court to set aside the order and provide relief for inverse condemnation, violation of civil rights and fraud. Contra Costa County Superior Court Judge Joyce Cram rejected the contentions and ruled for the county, a decision a unanimous three-judge panel of the First District, Division One, upheld.

The court broke down its opinion into multiple sections, the first of which addressed the ski club's argument that its development is not a public nuisance under the Civil Code. The court didn't parse the legal definitions, though. What matters, the court said, is that the county has the authority to act on development that violates land use and related ordinances.

The court then moved on to the ski club's central argument, which was this: Because the club had used its facilities for so long, and because the county's enforcement was inconsistent and slow, the county was barred "estopped" is the legal term from abating the club's use of its property. The club said a county attorney said in 1974 the county would not hassle the club, noted that the county took no action for years and broke a promise in the late 1970s to form a committee to address recreational uses in the Delta. The court was unconvinced.

"On these facts the club could not have assumed its development complied with the county's ordinances," Justice William Stein wrote for the court. "To the contrary, the county at all times has maintained that the development was illegal."

The county was enforcing a public interest in open space and land use limitations, Stein wrote. "We see little injustice in compelling the club to remove structures constructed or installed without a permit either before contacting the county or after the county informed it the development was illegal, and without even attempting to comply with the law," he continued.

The club asked the court to at least limit the abatement order, but the court would have none of it. "[G]ranting the club partial relief would encourage others to violate land use and zoning ordinances on the assumption or hope their continued violation will allow them to circumvent the planning process," Stein wrote.

The court had no more patience with the club's contention that the nuisance abatement amounted to a taking of private property or violation of civil rights. "The club never had a property right to develop Golden Isle in violation of the county's land use requirements," the court concluded.

The Case:
Golden Gate Water Ski Club v. County of Contra Costa, No. A116712, 08 C.D.O.S. 9612, 2008 DJDAR 11745. Filed July 25, 2008.
The Lawyers:
For the ski club: Ronald Zumbrun, (916) 486-5900.
For the county: Silvano Marchesi, county counsel, (925) 335-1800.
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