Bennett v. LakeCountyBd. of Supervisors

Filed 12/31/09 Bennett v. Lake County Bd. of Supervisors CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Lila and Gail Bennett in propria persona (petitioners) appeal from the order denying their petition for writ of administrative mandamus. The petition sought to overturn an order issued by the Lake County Board of Supervisors (County) requiring petitioners to abate public nuisances on their property. Petitioners arguments primarily challenge the Countys power to issue the abatement order. The County had the power to issue the order, and petitioners identify no ground that would justify overruling it. Accordingly, we affirm the judgment.

I. BACKGROUND

The County opened a nuisance abatement case for the property in 2000, held abatement hearings in September 2004, October 2006, and February 2007, and issued abatement orders against the property in September 2004 and February 2007.

Notice to appear at a County hearing on October 16, 2007, to show cause why conditions on the property should not be declared a nuisance and abated was given to petitioner Lila Bennett, who was then the sole owner of the 40-acre parcel in question. She was represented at the October 2007 hearing by her daughter, petitioner Gail Bennett, who became an owner of the property during the court proceedings below.

The County had inspected the property on August 15, 2007, pursuant to an inspection warrant issued by the Lake County Superior Court. The inspection revealed, among other things, improvements that had been constructed without building permits or planning clearance. At the October 16 hearing, County personnel presented photographs taken during the inspection that showed various building code, zoning, and environmental health violations on the property.

After considering this evidence, and statements from Gail Bennett and other witnesses for petitioners, the County: allow[ed] the property owner thirty (30) days to remove the open and outdoor storage, public nuisance vehicles, and [ordered the owner] to obtain the required permits to legalize the barn, carports, shop/garage, sunroom/greenhouse, converted storage to living space and [allowed the owner] sixty (60) days to final all permits and/or authorize staff to abate the nuisance by removing all open and outdoor storage, public nuisance vehicles, and demolition of the two illegal mobile homes and all other unpermitted structures, and all costs associated with this case shall become a charge against the property.

The trial court found no cause to nullify the Countys decision.

II. DISCUSSION

Petitioners do not dispute that the abatement order was supported by substantial evidence. They instead raise issues of law, such as the Countys jurisdiction, that are decided de novo on appeal. (2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2009) Appeal from Superior Court Judgment,  16.49, p. 637.)

Petitioners argue that the County sought to exercise regulatory and administrative powers in excess of authority in ordering them to abate the nuisances on their property. Settled law is to the contrary. Under the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI,  7.) This authority is often referred to as the police power. [Citations.] [] . . . [] It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare. [Citations.] (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1181.) The police power includes the ability to require that an individual . . . obtain a permit for the construction, alteration or use of a building (City of Yuba City v. Cherniavsky (1931) 117 Cal.App. 568, 572), and to declare abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof on private property a public nuisance (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 385). (See also Health & Saf. Code,  19825 [recognizing that a county may require[] the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition, or repair of any building or structure].) The government has the power to declare what constitutes a nuisance (8 Miller & Starr, Cal. Real Estate (3d ed. 2008)  22:28, p. 22-107 (Miller & Starr)), and has the duty to abate or enjoin a public nuisance without showing any property right in itself, because it has a duty to protect the property rights of all of its citizens (id. at pp. 22-10822-109).

Petitioners contend that they were denied due process. We disagree. Generally, due process requires that the government provide notice and an opportunity to be heard before it deprives a person of property. [Citations.] (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 927.) These requirements apply in nuisance abatement proceedings, and they were satisfied here. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285, 299 [due process was satisfied because [the city] provided [the landowners] with notice of the basis for the nuisance abatement proceeding and with a meaningful opportunity to be heard on the matter; sworn testimony not required].)

Petitioners argue that they were entitled to a court trial on the nuisance issue, but the law is to the contrary: [c]ounty boards of supervisors and municipal legislative bodies are authorized to enact ordinances for procedures to abate nuisances, and they may provide for the determination that a nuisance exists by administrative proceedings. (8 Miller & Starr, Cal. Real Estate, supra,  22:28, p. 22-110.)

Petitioners maintain that the abatement order was improper because the conditions the County identified as nuisances are not among those enumerated in Civil Code section 3479. We rejected this argument in Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249 (Golden Gate), where the landowner, without obtaining permits, erected improvements that violated the countys land use ordinances. The landowner challenged the countys order to abate the nuisance created by those violations on the ground that the improvements were not a public nuisance as defined by Civil Code section 3479. In rejecting that contention, we pointed out that planning code violations do in fact constitute a public nuisance. (Golden Gate, supra, at p. 255 [citing, e.g., Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244, where a homeowners conversion of half of her garage into two studio apartments without obtaining permits violated the municipal code, which made it a nuisance, and the city was entitled to remove the apartments].) We went on to observe that whether the violations were in fact nuisances was not particularly relevant, in any event, because the county had the police power to enforce its land use ordinances. (Golden Gate, supra, at pp. 255−256.) Unless the enforcing authoritys declaration of nuisance in some way misleads the landowner into misunderstanding the nature of the violation, it is enough that the authority has the power to act. (Id. at p. 256.)

Here, as in Golden Gate, petitioners were not misled into believing the order of abatement was based on the statutory definition of public nuisance as opposed to the claim [they were] violating the Countys land use ordinances. (Golden Gate, supra, 165 Cal.App.4th at p. 256.) Moreover, as in Golden Gate, [t]here is no factual dispute that [petitioners property] violates the Countys land use and related ordinances. (Ibid.) Thus, as in Golden Gate, petitioners have no protectable property right or interest in the property that is subject to the abatement order. (Id. at p. 269.)

We have considered petitioners other arguments, including those based on the Northwest Ordinance of 1787 and on allodial title to the land, and find them to be without any merit.

III. CONCLUSION

We independently agree with the trial courts decision and affirm the judgment.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Banke, J.

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