El Dorado won't issue permit to build a boathouse until resident agrees to let planes fly overhead.
El Dorado County is being sued by a company famous nationally for fighting for the rights of private property owners.
The lawsuit takes the county to task for refusing to issue a building permit to a Cameron Park resident unless he grants an easement allowing airplanes that use a nearby airport to fly over his property.
See Lawsuit Here: http://www.pacificlegal.org/uploads/File/Briefs/dutta.pdf
The Pacific Legal Foundation filed the suit in El Dorado Superior Court on July 31 on behalf of Bobby Dutta, who wants to build a one-story boathouse at his residence. The property is on Majar Court, east of Cameron Park Drive and across the street from the Cameron Park Airport runway.
Meriem Hubbard, an attorney with Pacific Legal Foundation in Sacramento, maintains that the county's requirement of an avigation (aerial navigation) and noise easement as a condition of the building permit is illegal because the boathouse would have no effect on airport operations.
"When a condition is imposed on a development, that condition has to be related to the impact of the development," Hubbard said. "Mr. Dutta's (boathouse) has no impact."
The Pacific Legal Foundation specializes in property rights litigation and is known for precedent-setting cases.
In this instance, Hubbard said, the foundation seeks to enforce a precedent it believes was set by a 1987 U.S. Supreme Court case, Nollan v. California Coastal Commission, which established that governments can't impose un- related demands as the price of permits and other regulatory actions.
El Dorado County officials declined to comment on Dutta's case because it is the subject of litigation.
But Mike Applegarth, a spokesman for the county chief administrator's office, said, "We have avigation easements for the safe operation and growth around airports."
The state has recognized the need for continued growth around airports, he said, and avigation easements are intended to offset the effects of development on airports and property owners within areas affected by airport traffic.
Larry Appel, deputy director of development services, referred to the section of county zoning ordinance for the avigation and noise easement requirement: "No permit of any type shall be issued for any development or activity subject to the airport safety regulations until the county is provided with an avigation and noise easement granting the right of flight and the right to cause noise, light and other effects associated with the operation of aircraft in the airspace over and above the subject property. Such easement shall be supplied in a form prescribed by the county and shall be recorded on the title of the subject property."
Applegarth said the easement requirement, adopted in 1987, "helps reiterate the fact that the property lies within an airport zone."
The lawsuit says Dutta's property currently contains a two-story residence, a garage and a swimming pool. It says the boathouse would be 14 feet high at the top of the roof line, 20 to 25 feet lower than the rooftop of the existing residence.
The avigation easement would prohibit structures, trees or other vegetation more than 40 feet in height and would require Dutta to trim or cut down mature oak and evergreen trees, according to the lawsuit.
Dutta initiated his permit application in September 2005, and Hubbard said he attempted to negotiate conditions of the avigation easement with the county before contacting Pacific Legal Foundation.
In May of this year, the permit application was converted from "pending" status to "expired," according to the lawsuit.
Hubbard said she does not contest the county's right to acquire avigation easements through negotiations with developers of projects in airport zones. But if the county wishes to impose the easements on projects such as Dutta's, she said, the county should undertake eminent domain proceedings and pay for the easement.
Avigation easements are a common method of protecting airports from the impacts of nearby development, but how and when they are applied varies among jurisdictions.
Stan Tidman, senior planner with the Placer County Transportation Planning Agency, handles land-use issues affecting the Lincoln and Auburn airports.
He said avigation easements are included as conditions of development for projects requiring discretionary review, such as special use permits, parcel maps or subdivision maps.
"We are one of several reviewing agencies that weigh in on those things," he said. "We look to the county planning staff to weave them into the discretionary review."
Tidman said the easements address noise and safety issues, prohibiting, for example, electronic devices or lighting that could interfere with pilots' ability to take off or land at an airport.
Gina Swankie, community relations officer with the Sacramento County Airport System, said avigation easements are included in airport planning polices for Sacramento International, Mather and McClellan airports that were adopted in April 2006.
A staff report accompanying the policies says an avigation easement conveys a property interest to the county, allowing aircraft using county-operated airports to conduct overflights, and provides a defense against inverse condemnation and other legal claims associated with airport use.
The report says, "The conveyance of an avigation easement is also a voluntary transaction and, therefore, does not give rise to a takings claim."
Pacific Legal Foundation's Hubbard said she seeks a quick resolution to Dutta's case so he can build his boathouse.
"He paid money to get a development permit, and since it was wrongfully denied, (the county) should either give him the permit, or if he has to reapply, waive the cost of reapplying," she said.
"We want him to get the permit and ask that they stop trying to basically extort these avigation easements," Hubbard said.
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By Cathy Locke - Bee Staff Writer
Published 12:00 am PDT Thursday, August 23, 2007
Story appeared in El DORADO FOLSOM RANCHO CORDO section, Page G6
