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Court Rules Water Treatment Plant Not Exempt From Local Ordinances

A public agency's proposed water treatment plant is subject to local zoning and building ordinances, the Sixth District Court of Appeal has ruled. The court held that the Government Code exemption to local zoning for "facilities for the production, generation, storage or transmission of water" did not extend to a water treatment plant. "We are unable to discern whether the Legislature actually intended to include a water treatment plant within [Government Code] 53091's automatic exemption of facilities for the production of water. While we believe that the Legislature intended to include a well within 53091's automatic exemption, the extension of the exemption to a water treatment facility involves policy considerations that we are unable to conclude that the Legislature resolved," Justice Nathan Mihara wrote for the unanimous three-judge panel. The issue arose in Santa Cruz County, where, in 1992, the county approved a four-lot subdivision. Three years later, Soquel Creek Water District purchased one of the parcels with the intent of drilling a well and building a water treatment plant. In 1997, the three remaining parcels were sold to buyers who now reside in single family residences. The new homeowners opposed the Water District's plan and fought the district on numerous fronts. The homeowners asked the county to declare the four lots illegal because the original subdivision conditions were not met, and to require the Water District to comply with local zoning and building laws. The county denied both requests, so Topsail sued. Santa Cruz County Superior Court Judge Robert Yonts ordered the county to issue "conditional" certificates of compliance for all four parcels conditioned on the homeowners and the Water District forming a property owners association for maintenance of common areas and sewers. Judge Yonts also ordered the county to record a new parcel map referencing the property owners association and restricting covenants. However, Yonts ruled that the Water District was exempt from local building and zoning regulations under Government Code 53091. Both sides appealed, and the Sixth District overruled Yonts entirely. The appellate court ruled that the challenge to the subdivision was too late because the statute of limitations was 90 days from the time of subdivision approval in 1992. The court then reviewed the exact wording of the exemption statute and City of Lafayette v. East Bay Mun. Utility Dist., (1993) 16 Cal.App.4th 1005, (see CP&DR Legal Digest, August 1993). In that case, the court ruled that a special district's proposal to build a service center in Lafayette had to abide by a city's zoning ordinances because the service center was a support facility not directly related to the storage and transmission of water. The Sixth District panel determined that the Santa Cruz County case was similar. The problem is that the statute does not define "facilities for the production of water," according to the court. However, other, unrelated, statutes contain specific references to particular types of facilities, which 53091 does not. "Had the Legislature intended to exempt water treatment plants from zoning ordinances, it was clearly capable of explicitly referring to such plants in 53091," Justice Mihara wrote. The Case: Topsail Court Homeowners Association v. County of Santa Cruz, No. H022122, 02 C.D.O.S. 874, 2002 DJDAR 1067. Filed January 28, 2002. The Lawyers: For the homeowners: Dale Dawson and Gerald Bowden, Dawson Passafuime & Bowden, (831) 438-1221. For the county: Rahn Garcia, county counsel's office, (831) 454-2040.
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