APPEAL from a judgment of the Superior Court of Butte County, Steven J. Howell, Judge. Affirmed. (Super. Ct. No. 122288)
The opinion of the court was delivered by: Davis, J.*fn3
CERTIFIED FOR PUBLICATION
This is an action for inverse condemnation in a flood control context. We uphold the judgment that found, with one exception, no inverse condemnation liability. We do so because the trial court, in this bench trial, decided all material issues, and properly found that defendant public entity‟s activities met the applicable legal standard--the rule of reasonable conduct (also known as the reasonableness rule).
In 1988, William Hauselt (plaintiff), an experienced property developer, purchased a 94-acre almond orchard about a mile north of Chico, eventually intending to develop the property as a residential subdivision. To date, plaintiff has been unsuccessful in obtaining development approval. A natural watercourse called Keefer Slough, which is on plaintiff‟s property, forms its northern boundary; the western boundary is adjacent to Highway 99. North of Keefer Slough are two parcels that were developed into the subdivisions of Carriage Estates (Carriage) and Wildflower Estates (Wildflower).
Keefer Slough is situated between Rock Creek to the north and Mud Creek to the south. For many years, Keefer Slough received floodwater overflow from Rock Creek via a natural stream bifurcation. The natural drainage in the area from Rock Creek is southwest toward plaintiff‟s property and Keefer Slough. Keefer Slough and Rock Creek are privately owned.
Plaintiff‟s property has had a history of periodic shallow flooding two to three times a decade. This history was confirmed by Department of Transportation records and photographs dating from the 1960‟s, and a 1989 flood map from the Federal Emergency Management Agency (FEMA) showing the property in a floodplain.
When plaintiff purchased his property in 1988, drainage improvements consisting of a pipe and ditch from the Wildflower property to Keefer Slough were present. Two months after plaintiff bought his property, he consented to Carriage drainage work on his property at Keefer Slough in return for the cooperation of defendant County of Butte (the County) with his development.
Plaintiff contends that County, through a series of activities over several years, implemented a 1979 Master Storm Drainage Plan (sometimes, the Master Drainage Plan) that made Keefer Slough a major part of the County‟s public drainage system. These activities increased the flow on the slough--causing plaintiff‟s property to flood--and resulted in a taking of plaintiff‟s property for public use. The County‟s principal activities were as follows:
--Carriage and Wildflower were drained using on-site detention ponds (i.e., on-site at each subdivision) and a drainage ditch and pipes into Keefer Slough. County accepted the drainage improvements for Carriage and Wildflower, including the pipes into Keefer Slough. (County requires developers to build detention ponds so that storm water drainage from developed sites does not exceed predevelopment levels, and to dedicate to County these works and accompanying easements necessary to own and operate the drainage system. County and plaintiff stipulated that no evidence would be offered at trial that the subdivision detention ponds were unreasonably designed or constructed.)
--Plaintiff contended that County, in mid-1992, allowed developers on the north side of Keefer Slough (Carriage and Wildflower) to raise the north bank of the slough above the south bank. County claimed that the trial judge‟s on-site inspection of the property disputed this, as did other evidence.
--In the early 1990‟s, County built a new bridge over Keefer Slough at Garner Lane, which is upstream of plaintiff‟s property. Plaintiff contended the new bridge increased the flow in the slough, as the former bridge had been acting as a plug. County replied that plaintiff‟s property often flooded when the former bridge was in place, and that plaintiff‟s expert did not identify the new bridge as a substantial cause of plaintiff‟s flooding.
--In 1995, County adopted the North Chico Specific Plan (sometimes, NCSP) to implement the County‟s general plan in the area. According to plaintiff, the NCSP identified Keefer Slough as the area‟s primary drainage channel notwithstanding its inadequate flood capacity. County noted that the NCSP contemplated on-site drainage detention basins for developed property along Keefer Slough that would not increase the expected peak runoff, and also contemplated, in line with general plan policy, to carry out storm drainage by means of natural watercourses like Keefer Slough.
--Before a large storm hit the area at the end of 1996/beginning of 1997 (the 1997 storm), Rock Creek‟s sediment bed was three to five feet lower than Keefer Slough‟s and functioned as a natural weir (bifurcation) that limited flow into Keefer and isolated Keefer topographically. The 1997 storm evened out the elevations of these sediment beds, increasing the flow into Keefer Slough. The County in 1997 sponsored a federally funded project through the National Resources Conservation Service to restore the pre-1997 bed levels, but this restorative work was undone by a 1998 storm. Plaintiff contends that County "deliberately made permanent the radically changed Rock Creek-Keefer Slough flow regime that has taken [plaintiff‟s] property."
--Finally, plaintiff contends that County has prevented him from developing his land for residential use, but County maintains that plaintiff has had only one development proposal denied.
On March 31, 1998, plaintiff sued County for inverse condemnation and related torts.
Following a bench trial, the trial court concluded:
(1) County‟s activities--in permitting the Carriage and Wildflower development north of Keefer Slough, in constructing the new Garner Lane Bridge, and in sponsoring the bed restoration project at the bifurcation of Rock Creek and Keefer Slough--were not individually, or in combination, unreasonable conduct that would impose inverse condemnation liability on County within the meaning of Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin). In a related vein, the trial court also found that Keefer Slough is a private watercourse, and that County‟s activities did not transform the slough into a public work or increase the flow of water in the slough or on plaintiff‟s land; (2) plaintiff‟s cause of action for inverse-based encroachment, founded on the Carriage and Wildflower drainage pipes and ditch into Keefer Slough, was time-barred; (3) plaintiff‟s tort claims were barred for failure to comply with the Tort Claims Act (plaintiff does not appeal this ruling); and (4) plaintiff is entitled to $1,034 as just compensation for a temporary taking regarding Red Fox Court in Wildflower (prior to a storm in 1998, County placed material on plaintiff‟s property at Keefer Slough to prevent flooding into Red Fox Court. The trial court found that, although County properly undertook this work pursuant to its emergency police power and that plaintiff did not prove that this work caused his land to flood, the emergency work was still in place at the time of trial, and the court ordered the work removed; the parties stipulated to a damages award for this activity of $1,034).
1. Inverse Condemnation in the Flood Control Context
Before delving into the issues plaintiff raises on appeal, we briefly examine the law concerning inverse condemnation in the flood control context.
Article I, section 19 of the California Constitution provides the basis for an inverse condemnation action by stating that private property may not be taken or damaged for public use unless just compensation has been paid. (Odello Brothers v. ...