Lamar Central Outdoor, LLC v. City of Los Angeles, 2016 WL 911406 (Cal. App.) constituted another round between cities and billboard companies over the limits of regulation. In 2002, defendant banned most billboards in the City, except for those allowed in a certain planned development zone and those advertising goods and services sold on the premises and for noncommercial billboards. The City also banned alterations to existing billboards. Exceptions to the ban included billboards allowed under a development agreement, special zoning district, and to work located primarily in a public right of way (such as a bus or transit stop). The City’s sign code rests on traffic safety and aesthetics.
Bowman v. California Coastal Commission, 2014 WL 5390057 (Cal. App.), involved a now-deceased landowner’s attempt to rehabilitate and improve real property within the California coastal management zone. The landowner applied to the local County for an “over-the-counter” permit for repairs (which were exempt from Coastal Commission review under the California Coastal Act of 1976), but later added a septic tank repair and rehabilitation of a dilapidated house to that permit application, which were subject to such review. After beginning the work on the over-the-counter permits, the landowner was told by the County to stop work until a final permit had issued. He did so but had not done any work on the septic tank or the rehabilitation of the house. He then passed away and a family trust assumed ownership.
Much later, the County approved the permit but added a condition of approval to require a lateral easement along the shorefront of the property, stating that the building had not been in use for some years and the occupation facilitated by the permit would increase the intensity of the use. Later that year, the family trust applied for an amended approval and requested removal of the condition, which the County did. However, the amended permit was appealed to the Defendant Commission under California law regarding the removal of the condition. The Commission ultimately determined that the condition was binding and its removal would violate a public policy in favor of public access to coastal resources and took action to restore the condition. A co-trustee of the family trust appealed that determination.
The court said it would review the Commission’s order for abuse of discretion. Plaintiff contended the exaction was unlawful under Nollan and Dolan, because there was no “rough proportionality” between the impacts of the development and the condition imposed. Defendant Commission argued that it did not create the condition and that it was final and binding. The court responded that normally the failure to appeal a condition gives rise to collateral estoppel in a subsequent challenge. However, the court recognized an exception to this rule:
"But under the facts here, application of collateral estoppel gives primacy to a procedural rule that creates an unjust result and subverts the fair application of the California Coastal Act of 1976. (Pub Resources Code, § 30000 et seq.) Inherent in collateral estoppel are met when its application comports with fairness and sound public policy."
In this case, the court noted that the repairs that were made were exempt from the Coastal Act and were done on an “over-the-counter” basis and could not be the subject of a rough proportionality analysis, noting that the County recognized that fact by removing the condition from its permit. Moreover, the facts also belie the Commission’s acquiescence argument as neither the land owner nor the family trust took the benefits of a permit. The court reversed the Commission’s action and struck the condition.
The use of equitable principles in review of the land use decision is fraught with peril. However, the lack of the constitutionality of the condition left the court with an all-or-nothing proposition in which the unconstitutionality of the condition weighed more heavily then the stability of the decision making process.
Bowman v. California Coastal Commission, 2014 WL 5390057 (Cal. App.)
Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.) was a personal injury suit over an accident involving plaintiff motorcyclist who was injured when he struck an asphalt berm abutting a raised drain on a county road. The drain system used a heavy steel cover eight to ten inches off the ground with a sloped asphalt berm to channel water into the drain. Defendant County, which managed the road, responded with, among other things, a design immunity defense but brought forth no evidence of any engineering design plans. The County’s road maintenance engineer testified that he “probably” approved the design and there was no other testimony regarding design or engineering. The maintenance engineer was not a licensed engineer and there was no testimony or evidence to show any scientific of engineering analysis for the subject public work – in fact, testimony was that such works were designed “in the field,” and evolved based on practical experience rather than professional design. Plaintiff appealed a verdict favorable to Defendant County based on design immunity.
Plaintiff’s appeal was predicated on insufficient evidence to support the immunity defense. In reviewing a jury verdict, the Court looked only to whether there was substantial evidence to support the same. The Court set out the applicable law as follows:
[California public entity tort law] provides that public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. A public entity may avoid liability for a proven dangerous condition of its property by proving the affirmative defense of “design immunity.” * * *
The Court added that the purpose of design immunity was to prevent a jury from second guessing a local entity’s design or engineering judgment where reasonable people may differ. Under California case law, discretionary design immunity involves three elements:
1. Approval of a plan or design prior to construction;
2. A causal relationship between the plan or design and the accident; and
3. Substantial evidence supporting the reasonableness of the plan or design.
All three elements must be planned and proved by a defendant public entity.
In this case, the Court focused on the discretionary approval criterion as Plaintiff alleged there was no exercise of discretion involved in this case. The evidence showed no previously approved design or plan for the drainage system. Moreover, there was no approval of the project by anyone in the County system having discretionary immunity. The maintenance engineer did not have authority either by virtue of his position or by delegation.
Finally, the Court rejected the County’s contention that the use of this drainage plan in practice for 25-years constituted discretionary approval, as it had no basis in precedent and, in the Court’s view, would greatly expand this branch of immunity beyond what the legislature had authorized. In the absence of such immunity, a public entity is liable for reasonably foreseeable injuries proximately caused by a dangerous condition of its property. The immunity was designed to prevent second guessing decisions by engineers or design professionals exercising their discretion. The record fails to show that the claimed immunity has a basis in fact. Accordingly, the jury verdict was remanded to consider other issues raised by the County but not reached.
Oregon, like California, recognized discretionary immunity to prevent second guessing professional decisions. This case demonstrates the limits of such discretion.
Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.)
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