Cnty. of Sonoma v. Gustely

248 Cal. Rptr. 3d 792, 36 Cal. App. 5th 704
CourtCalifornia Court of Appeal, 5th District
DecidedMay 31, 2019
DocketA153423
StatusPublished
Cited by3 cases

This text of 248 Cal. Rptr. 3d 792 (Cnty. of Sonoma v. Gustely) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cnty. of Sonoma v. Gustely, 248 Cal. Rptr. 3d 792, 36 Cal. App. 5th 704 (Cal. Ct. App. 2019).

Opinion

Kline, P.J.

*706Respondent Mark Gustely failed to comply with an administrative order finding various violations of county codes on his property and ordering him to abate the violations and pay abatement costs and civil penalties. When the County of Sonoma (County) filed an action in the superior court to enforce the codes, enjoin further violations and recover penalties, costs and attorney fees, respondent did not file a responsive pleading and the court entered a default judgment in favor of the County. The judgment, however, ordered penalties significantly lower than the amount ordered by the administrative hearing officer. The sole issue on appeal is the propriety of this reduced penalty assessment. As we will explain, this provision of the court's order, which alters a final administrative *794order, was entirely unexplained and provides respondent with a windfall he did not request, cannot be sustained. Accordingly, we will reverse the court's order imposing civil penalties at the rate of $20 per day, direct the court to modify its judgment to require payment of such penalties at the rate of $45 per day, and otherwise affirm the judgment.

BACKGROUND

January 13, 2017,1 an engineer from the County's Permit and Resource Management Department (PRMD) inspected respondent's property and observed inadequate and unpermitted retaining walls, one of which directed water to a single point directly above a failed 25-foot bank that had deposited five cubic yards of earth onto Riverview Drive.2 The inspector also observed unpermitted grading and terracing that contributed to bank failure and deposit of material into a nearby water course. On January 19, a rainstorm resulted in slope failure at the property, causing a "four-foot high 'wall of mud' " to "slid[e] onto Riverview Drive blocking ingress and egress for vehicles on the roadway." Respondent moved earthen materials from the road to two locations, one resulting in runoff of materials into a local stream and the other on *707neighboring private property. Respondent believed his actions either did not require permits or were emergency measures to mitigate damage from impending rains.

On January 26, the PRMD sent respondent four separate notices and orders regarding the unpermitted retaining walls, unlawful grading that was "not performed pursuant to grading standards," "unlawful movement of earthen material within a county owned right-of-way," and unlawful deposit of material in a watercourse. The first three notices required respondent to apply for the applicable permits within a specified timeframe, and the fourth required him to immediately install and maintain "Best Management Practices" to prevent future soil discharge. The notices were subsequently posted on the property.

On January 26, respondent informed PRMD that he had engaged in additional excavation and earth movement within a county right-of-way to investigate alleged violations by his neighbor. PRMD determined that respondent's activities required an encroachment permit and sent a notice of violation.

Respondent informed PRMD that he wanted to appeal the violation determinations and an administrative hearing was held on March 31, at which respondent appeared, testified under oath and submitted documents, as did County code enforcement inspectors and engineers. The administrative hearing officer issued and served her 14-page decision on May 15, finding that respondent violated specified sections of the Sonoma County Code (SCC or code) by failing to obtain required permits for construction of the retaining walls; employing inadequate grading and slope protection safeguards that failed to prevent erosion and discharge of soil from the property during rain events; failing to obtain required encroachment permits for work done on a county right-of-way; and depositing material into a county watercourse due to inadequate use of best management practices during the rainy season (with respect to grading and retaining walls) that resulted in slope failure, erosion and discharge of soil from the property.

Pursuant to section 1-7.1 of the SCC, the hearing officer imposed civil penalties of *795$45 per day for each day the violations existed from the date of the County's notice through the date of the hearing, a total of $2,880.00. The hearing officer further order respondent to pay a total of $8,476.79 in abatement costs. Respondent was ordered to submit a complete building and encroachment permit application package within 30 days and to diligently pursue the permit process with specified deadlines for responding to requests for correction or modification of plans, paying fees, obtaining necessary permits and obtaining final approval of the permits. The order specified that penalties would accrue at a rate of $45 per day from the date of the hearing until the violations were abated. *708Respondent did not seek judicial review of the administrative order.

On May 30, a PRMD code enforcement inspector observed additional unpermitted grading to construct a driveway on the property, including encroachment onto the County's right-of-way, as well as an illegal trailer on the property in violation of zoning regulations.

On June 9, the County filed a "Complaint to Enforce Sonoma County Building, Grading and Encroachment Codes; to Abate a Public Nuisance and for Injunctive Relief," seeking to compel abatement of "an imminent threat to public health and safety" that respondent had created by "erecting and constructing inadequate retaining walls without a permit; conducting unpermitted and uninspected grading of roads and terraces; conducting unpermitted encroachment work within the County right-of-way; and causing the deposit of materials into a county creek." These code violations were alleged to have created "dangerous and substandard conditions that have resulted, and will continue to result, in landslides onto the County right-of-way as well as onto adjacent private property." The complaint stated that after an evidentiary hearing the hearing officer issued an order upholding all the violations and awarding the County penalties and abatement costs, but respondent continued to illegally grade the property, maintain an unpermitted and inadequate retaining wall, excavate in the County right-of-way and create erosion onto Riverview Drive and adjacent private property. The County alleged causes of action for violation of grading standards, violation of the building code, encroachment onto a county right-of-way, public nuisance and injunctive relief, and sought relief including orders requiring respondent to immediately cease unpermitted work on the property, abate the code violations, and pay penalties pursuant to the SCC, as well as costs and attorney fees, and orders authorizing the County to take actions necessary to abate the violations in the event respondent failed to do so.

On June 11, an inspector observed that the unpermitted grading on the property and County right-of-way had progressed further, the "road/driveway" had been leveled and gravel had been added to smooth the surface of the road/driveway. Two trailers were observed on the property in violation of zoning regulations.

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Cite This Page — Counsel Stack

Bluebook (online)
248 Cal. Rptr. 3d 792, 36 Cal. App. 5th 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cnty-of-sonoma-v-gustely-calctapp5d-2019.