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Powell v. County of Humboldt

California Court of Appeal, First District, First Division

January 16, 2014

Scott POWELL et al., Plaintiffs and Appellants,
v.
COUNTY OF HUMBOLDT, Defendant and Respondent.

Trial Court: Humboldt County Superior Court, Trial Judge: Hon. Dale A. Reinholtsen. (Super. Ct. No. CV110025).

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COUNSEL

[166 Cal.Rptr.3d 749] Pacific Legal Foundation, R.S. Radford, Meriem L. Hubbard, Sacramento, and Jennifer Fry Thompson for Plaintiffs and Appellants.

Center for Constitutional Jurisprudence, John C. Eastman, Anthony T. Caso, Sacramento, and Karen J. Lugo as Amicus Curiae on behalf of Plaintiffs and Appellants.

Wendy B. Chaitin, County Counsel, Joyce E. Stigter, Deputy County Counsel; Rosales Law Partners, Mara E. Rosales and Robert D. Sanford, San Francisco, for Defendant and Respondent.

OPINION

Margulies, Acting P.J.

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Scott and Lynn Powell challenge the constitutionality of a county general plan requirement that they provide an aircraft overflight easement as a condition for obtaining a building permit to make minor alterations to their residence. The Powells contend the easement requirement constitutes a taking of their property without payment of just compensation under Nollan v. California Coastal Commission (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 ( Nollan ) and Dolan v. City of Tigard (1994) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 ( Dolan ). The trial court disagreed and, following cross-motions for summary judgment, entered judgment in favor of Humboldt County (County). We affirm.

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I. BACKGROUND

A. The Permit Application

In June 2004, the Powells purchased residential property on Grange Road in McKinleyville, California (the property). The Arcata-Eureka Airport (airport), located approximately one mile from the property, is owned by the County. As required by law, the County adopted an " Airport Land Use Compatibility Plan" (ALUCP) in 1993, and amended it in 1998. (Pub.Util.Code, §§ 21675, subd. (a), 21675.1.) The purpose of an ALUCP is to " provide for the orderly growth of each public airport and the area surrounding the airport," as well as to " safeguard the general welfare of the inhabitants within the vicinity of the airport and the public in general." (Pub.Util.Code, § 21675, subd. (a).) In 2002, the County incorporated the ALUCP as part of its general plan.

The Powells' property is located within " Airport Compatibility Zone C" (Zone C), a zone that is not under a runway approach to the airport, but over which aircraft routinely fly at or below an altitude [166 Cal.Rptr.3d 750] of 1,000 feet.[1] Under the ALUCP and general plan, all owners of residential real property located in Zone C must dedicate an overflight easement as a condition for the issuance of a building permit. The ALUCP states the purpose of the condition is to ensure that any improvement is compatible with the safe operation of the airport. The overflight easement grants the County the right to (1) allow flights and the noise inherent thereto in the airspace over the property; (2) regulate or prohibit the release into the air of substances such as smoke, dust, or steam that would impair visibility; (3) regulate or prohibit light emissions that might interfere with pilot vision; and (4) prohibit electrical emissions that would interfere with aircraft communication or navigational systems. The easement would run with the land as long as the airport is operational.

The Powells' property has a mobile home with an attached covered porch and carport that were illegally built without permits by previous owners.

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When the Powells applied for a building permit for the carport and porch in 2004, the County informed them in writing that the overflight easement was a condition for issuance of a permit. The Powells did not complete the permit application due to other time demands, and it eventually expired.

In May 2008, the County wrote to the Powells notifying them they were required to obtain an " after-the-fact" permit for the carport and porch, and specifying the legal remedies and monetary penalties the County could pursue if the Powells did not restart the permit process. On January 15, 2010, the Powells submitted a new application for a permit, which included work to secure the porch foundation and strengthen the structures. On February 5, 2010, the County again informed the Powells in writing that the overflight easement was a condition for approval of the permit, and asked them to sign and return an enclosed copy of the written easement for recording. The County reiterated the same information and request in a second letter dated August 2, 2010. The Powells responded on August 20 with a letter from counsel protesting the overflight easement as being unconstitutional, and requesting the permit application be approved without that condition. The County advised the Powells' counsel it would not approve the permit application without dedication of the overflight easement. The Powells took no further administrative action, such as obtaining a denial of the application, seeking a variance, or taking an appeal from an adverse ruling on the permit or variance application to the County's board of supervisors (Board). According to the County, the Powells' application expired one year after it was submitted.

[166 Cal.Rptr.3d 751] B. The Petition and Complaint

The Powells filed a petition for writ of mandate and complaint for declaratory and injunctive relief on January 12, 2011. The Powells' first cause of action sought a writ commanding the County to approve their permit application on the ground the overflight easement condition, as applied to their application, is unconstitutional.[2] The Powells' second cause of action for declaratory relief sought a declaration the County could not require them to dedicate an overflight easement as a condition for approval of their permit application, and could not withhold approval until the unlawful condition is met. The declaratory relief cause of action asserted the condition violated the Fifth Amendment of the United States Constitution,

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article I, section 19 of the California Constitution,[3] and Government Code section 66001,[4] because the condition was " not related to the impact of the proposed project," for which the Powells were seeking a permit. The Powells asserted a third cause of action seeking a declaration that the County violated Government Code section 66001 by conditioning the granting of their permit application on dedication of the easement. The Powells advised the trial court that their section 66001 arguments were redundant to their inverse condemnation claims, should not have been designated as a separate cause of action, and would not be further pursued.

C. The Summary Judgment Motions

The County and the Powells filed cross-motions for summary judgment. Both motions were premised in part on the undisputed facts summarized above concerning the origin, nature, and terms of the overflight easement condition, the Powells' efforts to obtain a permit, and County's response thereto. The County's separate statement and supporting evidence also established the following additional undisputed facts: (1) aircraft flight over the Powells' property did not in itself constitute a physical taking of the Powells' property; (2) the Powells had no evidence the frequency of or noise from aircraft had increased since they purchased the property in 2004; (3) the Powells' complaint did not allege any injury or damage due to aircraft flying over the property; (4) the Powells had no knowledge of what uses of the property might violate the terms of the overflight easement in the future; (5) the permit work planned by the Powells would not create any condition violating the terms of the easement ...


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