Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. N05-0928
Jenkins, J.
Plaintiff Lionsgate Development Corporation (Lionsgate) appeals the judgment entered in favor of respondent County of Contra Costa (County). Entry of judgment followed a bench trial in which the court resolved claims asserted in Lionsgate’s complaint for inverse condemnation in favor of the County. Having carefully considered the contentions presented by Lionsgate on appeal, we affirm the judgment.
Factual and Procedural Background
In April 2003, Lionsgate purchased the subject property located at 2501 Warren Road, Walnut Creek (property), consisting of one house on 0.91 acres. The property is bounded on the north by Warren Road and on the west by Boulevard Way. From the intersection of Warren Road and Boulevard Way the property slopes down in a southeasterly direction. The southeast portion of the property adjoins Las Trampas Creek. Lionsgate bought the property intending to subdivide the property into three lots; remodeling the existing home on one of the lots and building homes for sale on two newly created parcels. Lionsgate prepared provisional plans and a “vesting tentative map” (map) for the proposed subdivision and submitted those to the County for approval in July 2003.
The County Zoning Administrator approved the tentative map for only two lots because a substantial portion of the property was within the structure setback area where development is prohibited under the County Structure Setback Ordinance (setback ordinance) due to the close proximity of Las Trampas Creek. Lionsgate appealed to the County Planning Commission but the appeal was denied without prejudice. Thereafter, Lionsgate submitted a Request for Reconsideration but also provided plans which called for the construction of a buried, intermittent retaining wall across the property in order to qualify for an exception to the setback ordinance. In January 2005, the Planning Commission approved Lionsgate’s plans to develop all three lots conditioned upon construction of the buried intermittent retaining wall. Lionsgate appealed the conditional approval to the County Board of Supervisors (Board). The Board denied the appeal and affirmed the conditional approval as granted by the Planning Commission.
In July 2005, Lionsgate filed a petition for administrative mandamus which included a cause of action for inverse condemnation. Regarding its inverse condemnation claim, Lionsgate alleged that the County’s imposition of unlawful conditions as a predicate to development of the property amounted to a taking without just compensation. In particular, Lionsgate alleged the County’s requirements that Lionsgate construct an intermittent retaining wall on the property and maintain a storm drain, which ran across the property from a junction box at the intersection of Warren Road and Boulevard Way to Las Trampas Creek, resulted in an unlawful taking without just compensation.
In April 2006, Lionsgate filed for bankruptcy in federal court and the property was subsequently sold in a trustee’s sale. Thereafter, the County filed a motion for summary adjudication on the ground that Lionsgate had no legal standing to pursue its writ of mandate because it no longer owned the property. In July 2008, the trial court granted the County’s motion for summary adjudication and dismissed Lionsgate’s petition for writ of mandate as moot.
The trial court’s ruling on the County’s motion for summary adjudication left for resolution Lionsgate’s claim for inverse condemnation, which came on for trial in June 2009. The parties stipulated to bifurcate the issues of liability and damages and first try the issue of liability to the court sitting without a jury. Following a bench trial, the trial court filed a tentative statement of decision on September 15, 2009, and adopted it as the final statement of decision on October 8, 2009. A first amended judgment in favor of the County and against Lionsgate was filed on December 10, 2009. Lionsgate filed a timely notice of appeal on February 2, 2010.
We review the evidence presented at trial as required below (see Discussion, post), and in accordance with established principles of appellate review, do so in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Discussion
Lionsgate contends that it suffered a taking without just compensation on three grounds. First, Lionsgate contends the County’s determination that the section of Las Trampas Creek adjoining the property was an “unimproved channel, ” rather than an “improved channel, ” resulted in a regulatory taking because the ordinance building setbacks required for an “unimproved channel” precluded development of two of the proposed lots. Second, Lionsgate contends that a storm drain pipeline, which ran across the property from a County junction box to Las Trampas Creek, also amounted to a physical taking of the property. Third, Lionsgate contends the County’s approval of its subdivision plans on the condition that Lionsgate construct a buried retaining wall constitutes a regulatory taking. We address these contentions below.
A. Las Trampas Creek Channel
Lionsgate contends the County’s determination that the section of Las Trampas Creek adjoining the property was an “unimproved channel, ” constitutes a regulatory taking. In order to prevail on this claim, Lionsgate must show that the County’s interpretation of the applicable ordinances was neither reasonable nor lawful. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219 (MCH) [where takings claim is based on regulatory interpretation, burden of proof is on the appellant to show that the agency’s decision is neither reasonable nor lawful].)
In interpreting the ordinances at issue, we exercise our independent judgment with due “consideration and respect” for the “agency[’s] interpretation of the meaning and legal effect of [the] statute.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7 (Yamaha); see also MHC, supra, 106 Cal.App.4th at p. 219.) The degree of deference that is due is “fundamentally situational. A court assessing the value of an interpretation must consider a complex of factors material to the substantive legal issue before it, the particular agency offering the interpretation, and the comparative weight the factors ought in reason to command.” (Yamaha, supra, 19 Cal.4th at p. 12.)
The fact that we are reviewing a county ordinance rather than a state statute does not affect the standard of review. “We interpret ordinances by the same rules applicable to statutes. [Citation.]” (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290.)
In this regard, “[o]ne factor the court may consider is whether the agency offering the interpretation had authored the ordinance under review, ” because in that case it is appropriate to assume the agency is ‘ “intimately familiar with” ’ the ordinance in question and ‘ “sensitive to the practical implications of one interpretation over another” ’ by virtue of authorship. (Citation.)” (Van Wagner Communications, Inc. v. City of Los Angeles (2000) 84 Cal.App.4th 499, 509 (Van Wagner).) “Another factor the court may consider is whether the agency’s interpretation is one that was consistently maintained and of long standing. (Citation.)” (Ibid.)
In this case, tempering our independent review of the ordinances in question with considerable deference to the County, we conclude that the record supports the County’s interpretation that the section of the Las Trampas Creek channel adjoining Lionsgate’s property is an “unimproved channel.” The ordinances at issue are found in Title 10 (“Public Works and Flood Control”), Chapter 1010-6 (Definitions) of the Contra Costa County Ordinance Code. Within Chapter 1010-6, ordinance number 1010-6.014 defines “improved channel” as “a watercourse which has been modified through man-made construction including (but not limited to) increasing the width and/or depth of it, straightening its alignment, or stabilizing the banks of it through grading, concrete, riprap or other means.” Ordinance number 1010-6.026 defines “unimproved channel” as “a watercourse which has been left as much as possible in its natural state.”
We accord such deference here because the ordinances in question are part of the County’s own flood control measures, and the evidence adduced at trial showed County staff have been consistent in their interpretation of the ordinances over time. (See Van Wagner, supra, 84 Cal.App.4th at p. 509.)
(See http://library.municode.com/HTML/16286/book.html, April 8, 2011.) Upon our own motion, we take judicial notice of Title 10 of County ordinances. We also grant the County’s motion for judicial notice of other selected County ordinances. The County filed its motion for judicial notice on August 31, 2010, and appellant filed a joinder in the County’s request on May 4, 2011.
The evidence in support of the County’s determination that the reach of the Las Trampas Creek channel adjoining Lionsgate’s property is an “unimproved channel” includes the plain language of the ordinances, the testimony of Brian Balbas, Deputy Director of the County’s Public Works Department, and Peter Mesard, the County’s expert in civil engineering, engineering geology and hydrology. Balbas testified he visited the site and inspected the reach of the channel adjacent to the Lionsgate site. At the location in question, he observed the creek is deeply incised and meandering, lacks a defined bed or bank and contains a large amount of natural vegetation. According to Balbas, his observations upon inspection of the channel comport with the definition of an “unimproved channel” as “a watercourse which has been left as much as possible in its natural state.” (Ordinance 1010-6.026.)
Additionally, and in support of his characterization of the creek channel adjoining the Lionsgate property as “unimproved”, Balbas was shown a series of photos depicting a section of Las Trampas Creek further downstream from the Lionsgate property, which he opined met the definition of an “improved channel.” For example, Balbas noted that the photographs depicted “a very defined creek bed, ” which was trapezoidal in shape, with gently sloping sides at a 3 to 1 gradient. Also, there was limited or minimal vegetation in the channel, and the outward side of the creek had been fortified with riprap and concrete to minimize any potential erosion problems. He also noted that the improved section had an access road to allow for inspection and maintenance of the channel by the County, and the County held easement rights to access roads on sections of the improved channel. Balbas’ use of photographs to illustrate the factors set forth in the ordinance’s definition of an “improved channel” (one that has been upgraded from its natural condition through “man made construction... increasing the width and/or depth of it, straightening its alignment, or stabilizing the banks of it through grading, concrete, riprap... or other means) adds further support for his conclusion that the section of the creek adjoining the Lionsgate property is an “unimproved channel.” (Ordinance 1010-6.014.)
Of the characteristics identified by Balbas in the photographs, the only one which does not appear to fall within the ordinance defining an “improved channel” is the requirement of an access road and a County easement thereto, (see fn. 7, post).
In sum, upon considering the express definitions of “improved channel” and “unimproved channel” in the ordinances, and the testimony presented by the County at trial, we have little trouble concluding that in the vicinity of the subject property, Las Trampas Creek has all the characteristics of a “a watercourse which has been left as much as possible in its natural state, ” i.e., an “unimproved channel, ” and none of the characteristics of an improved channel.
In contrast to the County’s showing, the only evidence offered by Lionsgate in support of its position that Las Trampas Creek was an “improved channel” was testimony by John Seidelman. Mr. Seidelman owned Seidelman Association, a firm providing engineering and geology consulting services, and Foundations and Earth Retaining Systems, a general contracting firm. Seidelman stated he carried out a project in 1981 on the Jones property, which is adjacent to and downstream from the Lionsgate property. According to Seidelman, there had been a significant landslide into the Las Trampas Creek on the Jones property, leaving a high cliff overlooking the creek. To stabilize the cliff, Seidelman designed and built a retaining wall along a section of the creek on the Jones property. Seidelman testified that before he installed the retaining wall, the creek was unimproved. However, upon construction of the retaining wall, Seidelman opined that the Creek met the ordinances definition of an “improved channel” because the retaining wall protected the adjacent property from the effects of stream course flow.
Seidelman’s testimony does not disturb our conclusion. First, Seidelman’s testimony on the issue of the retaining wall as a channel improvement was refuted by both Brian Balbas and Peter Mesard, the County’s expert in civil engineering, engineering geology and hydrology. Balbas stated that the retaining wall downstream of the Lionsgate property was put in place for an isolated erosion problem in the early 1980’s and adds no hydraulic value or improvement to the creek itself. Mesard testified that at the location in question the channel is very rough, and “no manmade activities have taken place to deepen, widen, smooth or align” the channel. Moreover, Mesard stated that the retaining wall actually sits “right in the creek, ” the creek flows along the base of the retaining wall and at certain times of year overtops it, all indicating that the “the wall was not intended as a hydraulic control structure.” In sum, whereas Seidelman’s testimony establishes that the retaining wall is a “man-made construction, ” it does not establish, as required under the ordinance (see footnote 7, ante), that the retaining wall is a modification which improves the hydraulic qualities of the channel. As importantly, the construction of the retaining wall along a section of creek bank on the adjacent Jones property does not alter the fact that the remainder of the channel, including the portion adjacent to the Lionsgate property, “ has been left as much as possible in its natural state, ” i.e., unimproved.
Lionsgate, however, contends the County failed to designate the creek area at issue as an “improved channel” by considering factors not present in the ordinance defining “improved channel, ” such as improved hydraulic flow and County easement rights to access roads for inspection and maintenance. On the question of hydraulic flow, Mesard testified in cross-examination that although the word “hydraulic” is not in the ordinance, the criteria for an improved channel listed in the ordinance, “the widening, the deepening, and the straightening of alignments, ... are clearly hydraulic issues, and to me the implication’s very clear that the purpose of that ordinance is to improve the hydraulic flow of the channel.” In our view, this interpretation of an “improved channel”—one where the “improvement” results in improved hydraulic flow in the channel—comports with the purpose of Title 10 of the Contra Costa County Ordinance Code, which addresses flood control and concerns “the hydraulic characteristics of watercourses and drainage facilities, ” (County Ordinance, section 1010-2.002). (See Vikco Ins. Services, Inc. v. Ohio Indem. Co. (1999) 70 Cal.App.4th 55, 61 [“first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law”].) Furthermore, assuming the ordinance defining “improved channel” cannot be read to include a requirement for County easement rights and access roads, the reach of the Las Trampas Creek at issue still does not qualify as “improved” even if we discount this factor.
To conclude, having independently reviewed the record with due deference for the County’s determination on the issue, we find no error in the County’s determination that the stretch of Las Trampas Creek adjoining the property is an “unimproved channel.” Accordingly, Lionsgate’s regulatory taking claim fails on this ground.
In its reply brief, Lionsgate raises a constitutional argument that it was denied notice and due process because, in reaching its determination that that the subject property adjoining the Las Trampas Creek was an unimproved channel, the County relied on factors not specified in the applicable ordinances. However, Lionsgate forfeited any constitutional challenge under both the administrative exhaustion doctrine (Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 787-788 [due process challenge forfeited because of failure to raise it at administrative hearing]; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1219-1220 [same]), and due to its failure to raise the claim at the trial level (Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008) 165 Cal.App.4th 1000, 1007-1008 [appellate due process challenge to rent control ordinance forfeited because it was not raised at trial level]).
B. Storm Drain Pipeline
Next, Lionsgate contends that a storm drain pipeline running across the property from a County junction box to Las Trampas Creek amounted to a physical taking of the property requiring just compensation. This contention lacks merit.
“The state and federal Constitutions guarantee real property owners ‘just compensation’ when their land is ‘taken... for a public use....’ (Citations.)” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259 (Shaw).) In particular regard to this claim, the law provides that a public entity may be liable in an inverse condemnation action for damage to private property proximately caused by use of a storm drainage system for its intended purpose, where the storm drainage system was constructed and maintained by the public entity as a public improvement. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 335-336 (DiMartino).) Moreover, “ ‘[t]he fact that a part of the system may have been actually constructed by a private person will not insulate a public entity from liability, if the system has been accepted or otherwise approved by the public entity. [Citation.]’ (Citations.)” (DiMartino, supra, 80 Cal.App.4th at p. 336.)
However, to prevail in a claim for inverse condemnation on the basis of damage caused by a public improvement, the plaintiff must show that the public entity “substantially participated in the planning, approval, construction, or operation” of the public improvement. (DiMartino, supra, 80 Cal.App.4th at p. 336; accord Ullery v. CountyofContra Costa (1988) 202 Cal.App.3d 562, 568-569 (Ullery).) We must affirm the trial court’s finding that the drainage pipeline at issue did not constitute a public improvement if it is supported by substantial evidence, that is, evidence that is “reasonable in nature, credible and of solid value.” (DiMartino, supra, 80 Cal.App.4th at p. 336; see also Ullery, supra, 202 Cal.App.3d at p. 567.)
Here, the testimony offered by the County at trial included that of Robert Tavenier, a senior civil engineer in the construction division of the County Public Works Department. Tavenier testified that in late 2004 or early 2005 he went with his supervisor to inspect whether the drainage ditches leading to the junction box at the intersection of Warren Road and Boulevard Way were open and clear. The junction box lies within the County road right of way. Tavenier described the junction box as a concrete box with a metal lid, roughly 3-feet square in dimension. The junction box receives drainage pipes from underneath Warren Road and Boulevard Way and surface drainage at that corner. At the time of his inspection, the outlet from the junction box was a 10-inch pipe that traversed the Lionsgate property and drained into the Las Trampas Creek. Tavenier inspected the County records pertaining to the Lionsgate parcel and found no easement for a County storm pipe across the Lionsgate property nor any documentation to indicate that the County planned, constructed, approved or maintained the pipe, accepted it as a county facility, or issued a permit allowing connection of the pipe to the junction box.
Peter Mesard, the County’s expert in civil engineering, engineering geology and hydrology, testified that after reviewing historical aerial photographs dating back to 1928 and topographical maps dating back to 1897, he concluded that since 1897 there have been no substantive changes, in terms of topography or grading, to the watershed or drainage area feeding into the Lionsgate property. Mesard compared aerial photographs of the property taken between 1928 and 1954. These photographs showed that in 1928 the only building structure on the property was a small house. At that time, water from the drainage area above the Lionsgate property flowed southeast across the Lionsgate property from the intersection of Warren Road and Boulevard Way into a discernible channel containing a narrow ravine draining into Las Trampas Creek. The later photographs showed that by 1952 the ravine, seen in the 1928 photo, had been filled and a large house with an Olympic sized swimming pool had been built on the site.
The testimony adduced above provides substantial evidence for the trial court’s finding that the drainage pipe did not constitute a public improvement. Accordingly, Lionsgate’s claim in inverse condemnation necessarily fails. (See DiMartino, supra, 80 Cal.App.4th at p. 336.)
Contrary to Lionsgate’s assertion, Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 (Marin) is not controlling here. In Marin, a homeowner sued the City of San Rafael (City) for inverse condemnation for damages resulting from the rupture of a storm drain beneath their home. (Id. at p. 596.) In reversing the trial court’s judgment in favor of the City, the appellate court in Marin stated: “ ‘Use of the land [for a public purpose over a reasonable period of time constitutes an acceptance..., without any formal action in relation thereto by governmental authority.’ (Citation.)” (Id. at p. 596.) Lionsgate asserts this principle applies to the facts here. However, we concur with the DiMartino court’s response to the same argument: “Such construction separates Marin from its facts, particularly the city’s concession in that case (absent here) that the pipe was part its storm drainage system, as well as evidence that it was installed under the supervision of the city engineer, and was knowingly used for drainage purposes.” (DiMartino, supra, 80 Cal.App.4th at p. 339.) Here, as in DiMartino, the County took no affirmative steps exhibiting dominance and control over the subject drainage pipe. Thus, Marin is not controlling.
C. Conditional Approval of the Subdivision Plans
Last, Lionsgate contends the County effected a taking of the property by approving Lionsgate’s plans to subdivide the property on the condition that Lionsgate construct an intermittent retaining wall on the property in mitigation of the creek setbacks. This contention is without merit.
Generally, courts have deemed two categories of regulatory action as “ per se compensable takings. First, where government requires an owner to suffer a ‘permanent physical invasion’ of his property for such things as cable lines, it must provide just compensation. (Citations.) Second, where the government action does not result in any physical invasion of the property, the action will still be considered a taking if the regulation deprives the owner of ‘all economically beneficial or productive use of [the] land.’ (Citations.)” (Shaw, supra, 170 Cal.App.4th at p. 260.) Lionsgate presents no argument that the County’s conditional approval is a per se taking, and we find no basis in law or fact to arrive at such a conclusion. (Cf. Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1273, 1276 [permit condition restricting use of groundwater cannot be characterized as a physical occupation sufficient to constitute a per se physical taking and was not a per se regulatory taking because it did not deprive owner of all economically beneficial use of the land].)
Outside the categories of per se takings, “[r]egulatory takings challenges... are governed by the ‘essentially ad hoc, factual inquiries’ set forth in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [98 S.Ct. 2646, 57 L.Ed.2d 631] (Penn Central). (Citations.) There is no set formula but ‘ “several factors... have particular significance.” [Citation.] Primary among those factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” [Citation.] In addition, the “character of the governmental action”—for instance whether it amounts to a physical invasion or instead merely affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the common good”—may be relevant in discerning whether a taking has occurred. [Citation.]’ ” (Shaw, supra, 170 Cal.App.4th at p. 261.) Again, Lionsgate presents no analysis of the Penn State factors: Rather, Lionsgate asserts the conditional approval constituted a taking because the County “fail[ed] to identify any Ordinance Code requirement for the intermittent retaining wall.” This argument is beside the point and distorts the record with respect to the retaining wall issue. In fact, the County imposed the condition of an intermittent retaining wall as a way for Lionsgate to stabilize the property against bank failure on Las Trampas Creek, thereby obtain a “an exception to the creek structure setback” for unimproved channels, and thus develop all three lots. Accordingly, we fail to see how the conditional approval by the County could amount to a taking under Penn State, supra, 438 U.S. 104.
Disposition
The judgment in favor of Contra Costa County is affirmed. Lionsgate shall bear costs on appeal.
We concur: McGuiness, P. J., Pollak, J.