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4865-4438-6980 v1 1
CITY’S BRIEF IN SUPPORT OF DENIAL OF ENCROACHMENT PERMIT
BURKE , WILLIAMS &
SORENSEN , LLP
A TTO R N EY S A T L AW
L O S A NG EL ES
Brian I. Hamblet (SBN 210717)
E-mail: [email protected]
BURKE, WILLIAMS & SORENSEN, LLP
2310 East Ponderosa Drive, Suite 25
Camarillo, CA 93010
Tel: 805.437.4406 Fax: 805.482.9834
Attorneys for CITY OF CAMARILLO
CITY OF CAMARILLO
IN RE:
651 Corte Castano,
BRIEF IN SUPPORT OF DENIAL OF
ENCROACHMENT PERMIT
I. INTRODUCTION
The City hereby submits this brief in support of its decision to deny the encroachment permit to allow a large block wall and a driveway cut-out on City property.
II. BACKGROUND FACTS
A. The Property
The real property that is at issue is 651 Corte Castano, Camarillo, CA 93010, and further identified as Ventura County Assessor’s Parcel Number 158-0-162-205 (the “Property”). The Property is owned by Phillip Wayne Hall, Sr. and Connie S. Hall who are the Appellants in this matter (“Property Owners”). The subject property is located on the northwest corner of Corte Castano and Avenida Del Manzano (Manzano), a “T” type intersection as shown in Exhibit 1. On July 25, 1973, the City accepted the right of way in this subdivision for the streets which were 30 feet on each side of the street centerline. See also Exhibit 1. The City right of way use consists of 20 feet for roadway purposes, 5 feet for sidewalk use and 5 feet as the parkway. The properties in this subdivision all have inverted parkways. In other words, while other areas of town will have a street, which is bordered by a parkway with city trees and plantings and then a sidewalk and then the Property Owners’ property, this area of town has the street bordered by the sidewalk which is 1 2
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then bordered by the City parkway before Property Owners’ private property line begins.
Specifically, the street is twenty feet wide on each side bordered by a five foot sidewalk and a five foot parkway which constitutes the City’s right-of-way (“ROW”).
In March 2022, a new side yard block wall and driveway curb cut were constructed within the City’s ROW on the Manzano side of the subject property as shown in Exhibit 2. The construction in the ROW occurred without authorization of the City, an approved City encroachment permit, and without verification that the required standards for construction were met, all violations of the Camarillo Municipal Code (CMC). The construction of the wall in the ROW also raised concerns regarding adequate sight distance for vehicles on both streets approaching the intersection.
B. Found to be a Public Nuisance
In March, April and May 2022, staff issued several notices and administrative citations to the Property Owner for violations requiring proper permits or removal of the wall and driveway curb cut. Following repeated and unsuccessful efforts by the City to seek compliance, a public nuisance abatement hearing was held on August 31, 2023. The hearing officer subsequently found the wall and driveway curb cut violations to be a public nuisance and on December 28, 2023, ordered the Property Owners to abate the nuisance by obtaining an encroachment permit for the driveway curb cut and demolish the wall constructed within the ROW. The Hearing Officer’s Decision is found at Exhibit 3.
C. The Permit Application
On August 29, 2023, just prior to the public nuisance abatement hearing, the Property Owners submitted an encroachment permit application to the City for both the wall and the driveway curb cut. On December 14, 2023, the City notified the Property Owners that an encroachment permit would not be approved for the wall since it was constructed in the City ROW and that a new encroachment permit application for the driveway curb cut is required. The December 14 email from staff is at Exhibit 4. To date, the wall and driveway curb cut remain in the City ROW and a new encroachment permit application has not been submitted. 1 2
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CITY’S BRIEF IN SUPPORT OF DENIAL OF ENCROACHMENT PERMIT
BURKE , WILLIAMS &
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D. Submittal of Appeal
On January 10, 2024, as provided in CMC Section 13.04.655, the Property Owners submitted an appeal of the City’s refusal to approve an encroachment permit for the wall and driveway curb cut, and an appeal hearing was scheduled and duly noticed for a special City Council meeting at 5:00 p.m. on February 13, 2024.
III. ARGUMENTS BY PROPERTY OWNERS FAIL TO ESTABLISH ENTITLEMENT TO AN ENCROACHMENT PERMIT AS REQUIRED BY CMC 13.04.665
As stated above, on December 14, 2023, City staff notified the Property Owners that an encroachment permit would not be approved for the wall after the fact since it was constructed in the City ROW.
Pursuant to the CMC, side yard walls are required to be located on private property, thus not requiring an encroachment permit for construction. If the Property Owners had provided a plan for the proposed wall before construction showing that a wall was to be located within the ROW, staff would have responded that the wall must be constructed on private property. Yet, no plan showing the wall location was submitted to the City before the wall was constructed within the City ROW. Therefore, no encroachment permit can be approved for the wall. As it relates to structures in the ROW, although the City has not issued encroachment permits, the City has entered into license agreements for some limited properties to allow for the construction of hardscape features in the ROW such as steps, decorative light pedestals and shorter decorative walls.
A. THE WALL AND DRIVEWAY WERE CONSTRUCTED IN THE CITY
RIGHT OF WAY AND THEREFORE VIOLATE THE CITY MUNICIPAL
CODE
The Property Owners constructed a wall and a driveway cut-out within the City ROW without obtaining a permit. This is in violation of Section 13.04.035 which provides as follows:
1. Illegal Unpermitted Curb Cut, Driveway and Sidewalk Work:
Violation of CMC section 13.04.035.D - Permit required, which states that:
“Every person except as otherwise provided in this chapter shall 1 2
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obtain a permit from the engineer before he: . . .
D. Places, constructs or repairs any curb, gutter, sidewalk, driveway, pavement, base course, retaining or garden wall, storm drain, culvert, pipe, conduit, cable or other work of similar nature in, over, along, across or through any highway.”
The newly constructed block wall also violates a number of zoning laws. The Property is located in an RPD-4U residential zone. Because of this, it must meet the requirements laid out in Camarillo Municipal Code chapter 19.16. This newly constructed block wall violates the following zoning code sections:
2. Violation of CMC section 19.16.080 B - Minimum Yard Requirements1, which states that:
B. A one-story dwelling shall have a minimum side yard from the street side of ten feet with the interior side yard being not less than five feet unless approved under an RPD permit for an alternate setback which shall be determined to provide adequate separation. (CMC § 19.16.080 B.).
B. THE CITY HAS AUTHORITY TO DENY THE ENCROACHMENT
PERMIT
Because the wall and the driveway cut-out were built within the City ROW the City has the authority to deny the encroachment permit and order the removal of the encroachments pursuant to Section 13.04.235 which provides as follows:
CMC section 13.04.235, Encroachment removal—The city may require the removal or relocation of any encroachment, lawful or unlawful, on a finding that the encroachment is detrimental to the
1 The language of this section makes clear that there is a side yard of 10 feet between the property line and the street that includes a 5 foot parkway. The Hall’s property line does not begin until 5 feet back from the sidewalk. Therefore the wall (built 2 feet from the sidewalk) encroaches on the City ROW
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public health, safety or welfare. Removal and relocation of encroachments under this section shall be in accordance with the procedure and penalties provided in Sections 1481 through 1485 of the California Streets and Highways Code.
C. PROPERTY OWNERS COUNTER-ARGUMENTS ARE UNPERSUASIVE
In their appeal of the City’s decision not to issue an encroachment permit, the Property Owners have offered a variety of arguments attempting to explain their right to keep the wall and the driveway cut-out. However, as will be seen below, none of them are persuasive.
1. Camarillo Municipal Code Sections in Chapter 19 Do Not Support Property Owners Appeal Arguments
The Property Owners contend that the City does not own the right of way based upon his interpretation of CMC Section 19.14.090, 19.16.140, 19.04.431, 19.04.820 and 19.14.170.
CMC Section 19.14.090 states (in part) as follows:
A fence, wall or hedge, not to exceed six feet in height, may be located or maintained along the side or rear lot lines provided such fence, wall or hedge does not extend into a required front yard or into a side yard along the street of a reverse corner lot where access to a residential key lot is adjacent to the rear property line of a reverse corner lot in which case such fence or wall shall be limited to three feet in height. (emphasis added).
This CMC section makes clear that a six foot wall is allowed along the side lot line, not beyond such line and within the City ROW. Thus this Section does not support Property Owners’ contention that they are entitled to keep the wall in place.
CMC Section 19.16.140 states (in part) as follows:
A fence or wall not to exceed six feet in height may be required to be located and maintained along the side or rear lot lines provided such fence or wall does not extend into the required front yard or into the side yard along the street side of a reverse corner lot, in which case such fence or wall shall be limited to three feet in height.
Once again, this Section makes clear that a six foot wall may be maintained along the side lot line (five fee from the sidewalk) but does not allow such a wall in the City ROW. 1 2
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CITY’S BRIEF IN SUPPORT OF DENIAL OF ENCROACHMENT PERMIT
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CMC Section 19.04.431 (defining landscape) 19.04.820 (defining yard) and 19.14.170 (defining Urban dwelling Unit) which are argued in the Property Owners’ Brief are irrelevant to the appeal before the City Council.
D. Due Process
Property Owners argue that the City Council appeal hearing is faulty because the City did not provide Property Owners with “due process” under the California Constitution. The California Constitution states: “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . .” (Cal. Const., art I, § 7.) This rule “require[s] reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest” or liberty interest. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 286.)
Property Owners due process arguments fail. As is demonstrated above, City has offered Property Owners ample notice and opportunity to be heard, including the current appeal hearing.
E. Estoppel
Property Owners make a number of arguments that seem to amount to estoppel. 2 However, under the facts of this matter, any attempts the Property Owners make for an Estoppel defense fails. Governmental estoppel is an equitable defense that arises when a municipality takes action and the landowner violates a regulation by relying on this action. “The elements of equitable estoppel are ‘(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.’” (Schafer v. City of Los Angeles, (2015) 237 Cal.App.4th 1250, 1261 [quoting Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725].) “An additional requirement applies in cases involving equitable estoppel against the government.
In such a case, the court must weigh the policy concerns to determine whether the avoidance of
2 E.g. “[P]rior to construction in 2022, Mr. Hall twice came to the City Planning Counter rather than just consulting with his son who is a Land Use attorney with more than 20 years’ experience that has been the lead Planning Attorney for the 3rd largest County in the State for last 11 years.” 1 2
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injustice in the particular case justifies any adverse impact on public policy or the public interest.” (Schafer v. City of Los Angeles, supra, 237 Cal.App.4th at p. 1261.) “Even if the four elements of equitable estoppel are satisfied, the doctrine is inapplicable if the court determines that the avoidance of injustice in the particular case does not justify the adverse impact on public policy or the public interest.” (Ibid.)
Courts will only invoke equitable estoppel against the government in rare circumstances. (County of Sonoma v. Rex (1991) 231 Cal.App.3d 1289, 1295.) Courts have reasoned that “neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat operation of a public policy adopted to protect the public.” (County of San Diego v. California Water and Telephone Company (1947) 30 Cal.2d 817, 826.) Courts have held that zoning laws are a “vital public interest.” (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 822.) “The presence of any nonconforming use endangers the benefits to be derived from a comprehensive zoning plan.” (City of Los Angeles v. Gage, supra, 127 Cal.App.2d at p. 459.)
Here, estoppel is not available as a proper defense or response to the denial of the permit because the Property Owners have presented no credible evidence that City staff misinformed the Property Owners. On the contrary, the evidence indicates that City staff repeatedly tried to warn the Property Owners of their non-compliance at the initial stages of construction that were brought to the attention of Code Compliance staff. However, the Property Owner avoided meeting with City staff and continued with the construction. Because the Property Owners cannot meet any of the elements of estoppel, this defense does not apply to this matter.
F. Disparate Treatment
Property Owners claim that they are being subjected to disparate treatment because there are other properties that appear to have walls on the City’s ROW.3 In a disparate treatment case, an [alleging party] can either (1) prove the existence of a similarly situated entity that was treated
3 For example, Property Owners argue, that the wall of the property behind them is only 4 feet from the sidewalk (instead of the required 5 feet) and, because of this, the City should allow their wall to remain 2 feet from the sidewalk.
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better than the plaintiff or (2) produce direct or circumstantial evidence that the defendant was motivated by a discriminatory reason.
If a plaintiff proceeds by producing direct or circumstantial evidence of a discriminatory motive, a court must evaluate the claim under the factors set forth in Arlington Heights v.
Metropolitan Housing Corp. (1977) 429 U.S. 252. In order to evaluate a discrimination claim under Arlington Heights, a court must consider (1) statistics demonstrating a clear pattern unexplainable on grounds other than discriminatory ones, (2) the historical background of the decision, (3) the specific sequence of events leading up to the challenged decision, (4) the defendant’s departures from its normal procedures or substantive conclusions, and (5) relevant legislative or administrative history.
Here it cannot be shown that there is some sort of discriminatory intent against the Property Owners. Rather the City saw the violation being built, received a complaint about the violations and responded. Because of these facts, the claim of disparate treatment fails.
IV. THE CITY HAS OFFERED A COMPROMISE TO THE PROPERTY OWNERS Although as explained above, City staff would not approve an encroachment permit application for the construction of a six foot wall in the City ROW as a general practice, in order to reach a compromise with the Property Owners, staff presented an Offer to resolve the matter in a way the allows the wall to remain. After further consideration by City Staff, given the wall meets the minimum setback standards for providing vehicle sight distance at an uncontrolled intersection (no stop signs) per CMC Section 19.380.050 and does not create a substantially dangerous condition for the public, City staff offered the Property Owners an alternative to demolishing the wall if certain requirements listed below are met. (Note, the City Attorney’s office also provided this offer on Wednesday February 7, 2024. See Exhibit 5).
1. Execution and recordation of a License Agreement allowing the wall to remain in the City ROW subject to full indemnification and release of liability of the City by the Property Owners, and maintenance of property owner insurance in perpetuity to cover any loss arising from the wall being located in the ROW, as well as agreement that, should the City need to use its ROW for any reason and if it determined by the City (at its sole discretion), that the wall will interfere 1 2
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CITY’S BRIEF IN SUPPORT OF DENIAL OF ENCROACHMENT PERMIT
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with that use, Property Owner will remove the wall at its’s expense.
2. Obtain an approved encroachment permit for the full removal and replacement of the driveway curb cut in conformance with all applicable City standards4 (including the purchasing of insurance approved by the City).
3. Executing a settlement and release of all claims and potential claims against the City based upon the encroachment, the public nuisance declaration, and the denial of the encroachment permit.
The Property Owners emailed the City Attorney on Friday February 9, 2024 in response to this offer. Property Owners were unwilling to accept the offer but saw it instead as a starting point for further negotiations. Because of this, City staff felt it best that the hearing go forward.
V. CONCLUSION
Although the legal arguments to overturn City staff’s denial of the encroachment permit fail, City staff desires to find a compromise to the dispute to allow the wall to remain and driveway to be properly installed, but only if it can be assured the City and public are properly protected. For the foregoing reasons, City staff respectfully request that the City Council take the following actions as a part of its appeal decision:
(a) Deny the encroachment permit for the wall and direct staff to work with the Property Owners to allow the wall to remain if the requirements described in Section IV above are agreed to by the Property Owners in a timely manner.
(b) Other actions the Council determines are appropriate to effectuate the above.
Dated: February 12, 2024 BURKE, WILLIAMS & SORENSEN, LLP
By:
Brian I. Hamblet
Attorneys for CITY OF CAMARILLO
4 The Property Owners’ curb cut is not built in compliance with City or County standards and would need to removed and replaced with one that conformed to such standards (See Exhibit 6).