A Riverside County property owner needed to get a county grading permit to repair a seasonal stream's spillway, even though the state Department of Fish and Game had apparently approved the project and the Federal Emergency Management Agency had funded it. So ruled the Fourth District Court of Appeal, Division Two, in 2 1/2-year-old litigation over a $500 fine.
In May 2005, a stream across John Martin's property near Temecula washed out a spillway that provided road access to a mobile home on a portion of the property. The Federal Emergency Management Agency ((FEMA) provided Martin $5,200 to repair the damage, and he commenced work. In early 2006, the Riverside County Code Enforcement Division issued citations and assessed Martin a $500 fine for grading without a permit. Martin contested the citations and fine; a code enforcement hearing officer upheld the county's action.
Acting as his own lawyer, Martin sued the county, but a Riverside County Superior Court judge ruled against him. Martin appealed to the Fourth District, but the court determined it did not have jurisdiction and transferred the case to the Superior Court's appellate division. When that court also decided it did not have jurisdiction, the Fourth District took the case back.
Armed with an attorney, Martin made four primary arguments to the appellate court: the Fish and Game Code pre-empts local grading legislation; the Department of Fish and Game (DFG) authorized the work in 1993 so no county permit was required; the spillway is a private road subject to an exception from the county grading ordinance; and the project qualified for an exception for moving less than 50 cubic yards of material. The unanimous three-judge panel rejected all of the arguments.
"The county's grading ordinance is not a local regulation but originates in state housing law, including the Uniform Building Code," Justice Barton Gaut wrote for the court. The state law requires cities and counties to adopt building standards, including standards for grading and excavating, Gaut wrote.
Both the Fish and Game Code and FEMA acknowledge the need for local permits, Gaut continued, also rejecting the contention that the grading was eligible for an emergency exemption. Martin did not repair the spillway for seven months and secondary access was available to the mobile home anyway, so there was no emergency, the court determined. The secondary access also eliminated the argument that the work was eligible for an exception as repair to a private road.
As for the small project exception to the county ordinance, the court cited the Superior Court's conclusion that 221 cubic yards of material was the "more plausible" amount involved. Besides, Gaut wrote, the exception is for excavation, while Martin's project involved placing fill in a streambed.
The Case: Martin v. Riverside County Department of Code Enforcement, No. E046276, 08 C.D.O.S. 12428. Filed September 19, 2008. The Lawyers: For Martin: Stephen Lindsley, Ackerman, Cowles & Lindsley, (951) 296-1698. For the county: Bruce Fordon, county counsel's office, (951) 955-6300.
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