It is not unusual in the non-urban parts of California for a property owner to install landscaping within a county right-of-way without ever securing an encroachment permit. In Santa Barbara County, like many jurisdictions, installing these improvements without County approval can be treated as a misdemeanor. Such work can also violate the Streets and Highways Code.
Following the County road commissioner’s attempts to compel removal of unpermitted landscaping to restore street parking, the affected property owners sued and obtained a preliminary injunction from the trial court against the County, preventing the County from enforcing removal pending a trial on the merits. The issue in this reported decision was the appropriateness of that preliminary injunction. The appellate court reversed the trial court as to the grant of the preliminary injunction.
The appellate court addressed several important issues for city and county officials facing other enforcement scenarios. As a threshold issue, the court determined that CEQA should not be used to frustrate criminal law enforcement. This blog focuses on the intersection of CEQA with the County enforcement efforts. The owners challenged the lack of a CEQA document, and the County argued that multiple separate CEQA exemptions applied. The property owners countered, arguing that the efforts to increase street parking was part of a larger project, or alternatively, that the “unusual circumstances” limitation excluded the use of exemptions.
The owners asserted that there was a larger connected project (increased trail hiking) which had never been studied. But the court concluded that the County’s project was to restore parking that had previously existed, and this project had independent utility and thus could be studied on its own. As to exemptions, the County argued that the activity was subject to three alternative exemptions: 15301, maintenance of existing facilities; 15304, minor alterations to land; and 15321, enforcement actions by regulatory agencies. After determining that the enforcement action had independent utility and thus was not part of a larger project, the appellate court rejected the argument that there was piecemealing and the enforcement action fit within the exemptions. The appellate court then rejected the owners’ argument that there were unusual circumstances which operated to preclude the use of exemptions. Applying Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the appellate court then concluded that the evidence of the road, along with its relationship to sensitive environmental lands, was not unusual compared to other nearby roads and habitat lands, and upon that basis, it reversed the trial court’s contrary finding.
When all factors were considered, the appellate court concluded that as a matter of law, a preliminary injunction against enforcement should not have been granted. After trial, the lower court ruled in favor of the owners, but that is unlikely given the thoughtful analysis by the court of appeal.
Bill Abbott is Of Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.