TTed J. Hannig (SB #111691)

H. Ann Liroff (SB#113180)

William R. Warhurst (SB #95551)Peter W. Daniel (SB #179107)

John H. Blake (SB #70187)

Hannig Law Firm llp

2991 El Camino Real

Redwood City, CA 94061

Telephone:  (650) 482-3040

Facsimile:   (650) 482-2820

 

Attorneys for Petitioners/Plaintiffs

Half Moon Bay Coastside Foundation, Bernie Neves, Oscar Braun and , Andrea Braun

and The Oscar A. Braun Trust Dated 1996

 

SUPERIOR COURT OF SAN MATEO COUNTY

 

UNITED STATES DISTRICT COURT

 

NORTHERN DISTRICT OF CALIFORNIA

 

SAN FRANCISCO DIVISIONUNLIMITED JURISDICTION

 

HALF MOON BAY COASTSIDE FOUNDATION aka SAVE OUR BAY; BERNIE NEVES, OSCAR BRAUN AND,  ANDREA BRAUN and THE OSCAR A. BRAUN TRUST DATED 1996,                   Petitioners/Plaintiffs,   v.   COUNTY OF SAN MATEO, and DOE 1 to DOE 100, inclusive,                  Respondents/Defendants.		Case No.:  C 03-03415 MJJCIV426174   FIRST AMENDED FIRST AMENDED PETITION FOR ADMINISTRATIVE MANDAMUS [CCP §1094.5], MANDAMUS [CCP §1085] AND DAMAGES [CCP §1095]; COMPLAINT FOR DECLARATORY RELIEF RE UNCONSTITUTIONAL ACTIONS BY THE SAN MATEO COUNTY BOARD OF SUPERVISORS; REQUEST FOR STAY PENDING JUDGMENTCOMPLAINT FOR VIOLATION OF CIVIL RIGHTS     42 U.S.C.A. § 1983     1.  Violation of First Amendmentt Rights; 2.  Fourteenth Amendment Equal   Protection;s 3.  Fourteenth Amendment Procedural Violation of Due Process. Rights Under Fourteenth Amendment.     Demand for Jury Trial

 

Plaintiffs To the Superior Court of San Mateo CountyOscar Braun and Andrea Braun aAllege as follows:

JURISDICTION AND VENUE:Petitioners and plaintiffs Half Moon Bay Coastside Foundation aka Save Our Bay, Bernie Neves, Oscar Braun and Andrea Braun (hereinafter “petitioners”) petition this Court for a writ of mandate under Code of Civil Procedure section 1094.5 or, alternatively, under Code of Civil Procedure section 1085 directed to respondent and defendant County of San Mateo (here­inafter “respondent County” or “respondent”), seek damages incidental to the writ under Code of Civil Procedure section 1095, and request a stay of respondents’ actions pending judgment, and by this verified petition allege as follows:

 

1.         This action arises under 42 U.S.C.A.  § 1983.  The jurisdiction of the court is pursuant to 28 USC §§ 1331 and 1343(a)(1).

2.         Venue is proper in the Northern District of California because a substantial numberamount of the events, acts or omissions giving rise to the claim occurred in this District.

 

 

PARTIES AND INTRODUCTION:Plaintiffs request a jury trial.

3.         Plaintiffs Oscar Braun and Andrea Braun (collectively “the Brauns”)  are citizens of the State of California, residing at 1589 Higgins Canyon Road in the unincorporated Half Moon Bay area of San Mateo County, California (hereinafter the “Property”). At all times relevant to this action, the Brauns have been the beneficial owners of the Property.

4.         At all times mentioned in this complaint, Defendant County of San Mateo (the “County”) is a local public entity, located within the jurisdiction of the United States District Court, Northern District of California.  The County administers and controls the process for issuance of planning, development, horse stable, affordable housing, envi­ronmental health and building permits in the unincorporated areas of the County of San Mateo.

5.         Plaintiffs made applications for legalization of a mobile home in which a developmentally disabled farm laborer (Mr. Neves) resided as affordable housing, as well as a stable, tractor shed, agricultural barn and shed, and to replace a code-mandated, but leaking, water tank used for fire suppression.  Plaintiffs Braun have a vested interest in maintenance and repair of the water tank by having received a building permit for its original installation and because it is essential for the Plaintiffs’ and the public’s safety. 

6.         After years of delay, their applications were finally unanimously approved and granted by the County’s Planning Commission.  However, The County’s Board of Supervisors then demanded the Brauns pay illegal and unjustly disproportionate fees and penalties, and ultimately reversed the unanimous decision of the Planning Commission and denied Plaintiffs’ applications.  This reversal followed years of discriminatory conduct by the county including the imposition of unfair, ever-changing and escalating conditions and impediments on the Plaintiffs, not imposed upon others similarly situated.

7.         Section 1983 of Title 42 of the U.S. Code, enacted by Congress pursuant to § 5 of the Fourteenth Amendment, creates an action for damages and injunctive relief against local governmental bodies, including counties, who deprive a plaintiff of rights, privileges, or immunities secured by the constitution.  Section 1983 incorporates the Fourteenth Amendment, which incorporates the Bill of Rights and applies them to the states.  Constitutional violations actionable through Section 1983 include violations of the Fourteenth Amendment standing alone, such as procedural due process or equal protection, or violations of the Bill of Rights.   First Amendment provisions for Freedom of Speech, Freedom of the Press and Freedom to Petition are among the rights applicable to the states through the Fourteenth Amendment.   

  8.       Plaintiffs are informed and believe, and thereon allege, that such action was taken to punish Andrea and Oscar Braun for their political beliefs and for Oscar Braun’s enthusiastic exercise of his Constitutional rights under the First Amendment, including but not limited to his highly public criticism of the Board of Supervisors and certain of its projects. 

9.         Plaintiffs are informed and believe, and thereon allege, that the Ccounty violated their right to equal protection guaranteed by the Fourteenth Amendment by treating them differently than other similarly situated property owners.  

10.       Plaintiffs are also informed and believe, and thereon allege, that the County violated their Fourteenth Amendment right to procedural due process by depriving them of the right to have land use determinations made by a fair and impartial decision maker.     

5.   Section 1983 of Title 42 of the U.S. Code, enacted by Congress pursuant to § 5 of the Fourteenth Amendment, creates an action for damages and injunctive relief against local governmental bodies, including counties, who deprive a plaintiff of rights, privileges, or immunities secured by the constitution.  Section 1983 incorporates the Fourteenth Amendment, which incorporates the Bill of Rights and applies them to the states.  Constitutional violations actionable through Section 1983 include violations of the Fourteenth Amendment standing alone, such as procedural due process or equal protection, or violations of the Bill of Rights.   First Amendment provisions for Freedom of Speech, Freedom of the Press and Freedom to Petition are among the rights applicable to the states through the Fourteenth Amendment.

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1./ / /

The Brauns’ Exercise of Constitutionally Protected Political Speech
PETITION FOR ADMINISTRATIVE MANDAMUS

 

116.       Parties and Introduction:

PetitionerPlaintiff Oscar Braun is the president of the Half Moon Bay Coastside Foundation, aka Save Our Bay and g, (hereinafter “Save Our Bay”), and the Brauns’ residence serves as the headquarters for Save Our Bay.  Save Our Bay is a community-based, 501(c)(3) nonprofit, environmental-watchdog, charitable corporation, which was  (hereinafter “Save Our Bay”). Save Our Bay is located at 1589 Higgins Canyon Road in the unincorporated Half Moon Bay area of San Mateo County, California (hereinafter the “Property”). Save Our Bay was established at the personal request of the late United States Secretary of Commerce Ron Brown and was later incorporated on December 23, 1999.  Save Our Bay is a recognized  member and active participant  in, along with other widely recognized organizations active in public environmental and public safety issues, in the NOAA Water Quality Protection Program aka WQPP, the RWQCB Stormwater Pollution Prevention Program aka STOPPP, the California Coordinated Resource Management Planning Council aka Coastside CRMP Council, and the Coastside Fire Safe Council (representing San Mateo County Coastal Zone which compromises approximately 73% of County’s land area). Save Our Bay also founded the Half Moon Bay Chapter of the Surfriders Foundation.

12.7.       From its location in the heart of the San Francisco Peninsula watershed, the Save Our Bay facility provides early detection fire alert and access to the upper levels of the watershed from the West. Save Our Bay has established the California Watershed Posse, whose members work with landowners and other governmental agencies to develop and implement integrated landscape scale Coordinated Resource Management Plans to assure NEPA/CEQA com­pliance, ecosystem sustainability, and effective Fire Safe landscape and watershed planning.

 

8.  13.       Through his work with Petitioners Save Our Bay, and Oscar Braun haves actively sought to establish a commprehensive watershed management program in San Mateo County to avert catastrophic environmental damage to the Peninsula watershed from natural and human-made causes, including environmental terrorism, firestorm and drinking water contamination.   In so doing, among other controversial projects, and in criticizing the status quo and drawing attention to the vulnerability

/ / /

of existing neglected and unmanaged watershed conditions in the County,  Plaintiffssaid petitioners have taken positions that are politically unpopular with respondentthe sCounty and others.

14.       9.       Petitioners Bernie Neves, Oscar Braun and Andrea Braun are all individuals residing at the Property that also serves as headquarters for Save Our Bay. Oscar Braun and Andrea Braun (collectively “the Brauns”) are the beneficial owners of the Property. Bernie Neves is a developmentally disabled person residing in affordable housing on the Property. As such, peti­tioners are beneficially interested in and aggrieved by the decision of respondent County of San Mateo, as alleged below.  The Brauns have taught Bernie Neves to read and, although disabled and entitled to accommodation by and assistance from respondent under its published “10 Com­mitments and 25 Goals.” (“Shared Vision 2010, The Promise of The Peninsula” by San Mateo County, Winter, 2001.) Petitioner Neves is able to understand the nature of these proceedings to protect his place of residence.  At all relevant times, the County was aware of petitioner Neves’ disability and low-income status.

PetitionerPlaintiff Oscar Braun has long been outspoken on issues of public interest.  In addition to being is the president of Save Our Bay, Oscar Braun is also the online publisher of the California Watershed Posse Town Hall forum, , and the co-founder of the San Mateo County rural lands farming community organization, the Coastal Family Alliance.  Many of Mr. Braun’s written opinions on political matters can be found at the web links:  California Watershed Posse aka “www.cwposse.org”;  Half Moon Bay Coastside Foundation aka Save Our Bay “www.saveourbay.org”;  Enemies In Our Midst “www.enemiesinourmidst.us”;  No RICO gov 4 Us at “www.noricogov4.us”;  No Invasive Species 4 Us at “www.noinvasivespecies4.us”;  Wise Use 4 Us at “www.wiseuse4.us”;  The Pebble News at “www.thepebble.us” Eco-Justice 4 Us Forum at “www.ecojustice4.us”;  Lake Berryessa Visitors Services Planning Taskfore at “www.lbvspt.info”; and Oscar Knows Inc at “www.oscarknows.com”;   Mr. Braun is also spearheading a drive to incorporate approximately 100,000 acres of unincorporated rural coastal lands in the County, and publishes a website in support of the incorporation project, "Rural Lands Inc" at “www.rlinc.org”.   

15.       Mr. Braun  has utilized these forums under his First Amendment rights of freedom of speech and of the press ias a frequent critic of the Board of Supervisors and various Ccounty practices, policies and programs, including the Devil’s Slide project and the failure of the County to provide adequate services to coastal residents.  He is a frequent speaker before the County Board of Supervisors and other local, state and federal agencies.  He uses the website as a clearinghouse for news, reports and other information on public issues concerning coastal San Mateo County.  Mr. Braun regularly sends e-mails to a list of recipients that includes local residents, government officials at the local, county, state, and federal level, and members of the press.     , and a proponent of Save Our Bay’s proposal for a comprehensive watershed management plan.  

16.       Mr.  0. Oscar Braun is disliked by many in the so-called “environmental community,” presumably because of his position that the agenda of some of these groups is “anti-community” and results in negative impacts for local residents. Petitioner Mr. Braun has been outspoken in his belief that the “environmental community” has exerted its influence with the County to limit affordable and available housing in the coastside by a technique of restricting use and development of housing, agriculture, police protection, fire protection, roads, sewer systems, water, watershed and schools.

17.         Those politically opposed to petitionerPlaintiffs have sought the assistance of the County and have publicly brandished their political influence in the County (including a reference to one of their leaders as a “sixth member” of the Board of Supervisors on their non-profit oorganization’s official web page, as alleged below).  Petitioner Save Our Bay and petitionerThe Brauns are informed and believe and thereon allege that the County has responded to such political pressure.  Member(s) of the Board of Supervisors have referred to petitioner Braun in derogatory and profane ways despite the County’s published Mission Statement to “Treat … people with respect and dignity.” (Shared Vision 2010, p. 2.)  At times, representatives of the County have threatened petitioner Braun despite the Mission Statement, which also provides that respondent will “treat … people with respect and dignity.” (Ibid.)

18.       1.       PetitionerPlaintiffs Oscar Braun and Save Our Bay have beenhas been a  “whistle-blowers” regarding environmental damage in the coastside and rural lands of theSan Mateo County and hasve assisted to enforce environmental laws in the San Mateo County.   In so doing, Mr. Braun was exercising his First Amendment rights to petition grievances and take an active role in government.   One of the main goals of Mr. Braun’s enforcement activities is to ensure that local governments and agencies comply with state and federal law so they do not lose state and federal funding.   

19.       For example, Mr. Braun and his attorney, the late Alan Beavean, commenced litigation commenced by Mr. Braun’s attorney, Alan Beavan, in 1995 that, forced the Sewer Authority Midcoast to update and improve its sewer system, stopping hundreds of egregious environmental violations and the repeated exposure of the public beaches to raw sewage.    In 1998, Mr. Braun photo-documented the County’s long history of dumping tons of road-slide dirt and debris into the Arroyo Leon Creek’s Envi­ron­mentally Sensitive Habitat Area (“ESHA”), including the creek bed stream for steelhead trout.

20.       In response to Mr. Braun’s evidence, the State of California forced the County to cease its unlawful practices.   Mr. Braun has been a key player in bringing a lawsuit under the California Environmental Quality Act challenging the sufficiency of the Environmental Impact Report  for the proposed annexation of 140,000 acres in coastal San Mateo County by the Mid-Peninsula Regional Open Space District.  Mr. Braun has also fought against violations of the Federal Clean Water Act by the County and local landowners, including some affiliated with mainstream “environmental” groups.  Petitioner Save Our Bay is informed and believes and thereon alleges that the County management was embarrassed by the exposure of its intentional violations of environmental laws, because the County’s practice was far more egregious than the actions of others prosecuted by the County.

 

2112.       Plaintiff Oscar Braun has also spoken out publicly on the subject of County elections.  San Mateo County is the only county out of 48 counties in the State of California that does not have district elections for its Board of Supervisors.   Accordingly, the San Mateo County coastal population has traditionally been under -represented in County government, because supervisors are customarily elected from the “Bay” side of the County with greater population centers.   Many on the San Mateo coast believe that the coast receives less than itsa fair share of County resources.

22.   For at least the last four years, Mr. Braun has spoken out publicly on behalf of a great number of coastal residents who feel ignored by the County government.   Mr. Braun’s notoriety has even made him the subject of insults and derogatory comments by at least one County official in candid comments, despite the County’s Mission Statement that highlights the County’s professed commitment to “Treating people with respect and dignity.” (San Mateo County Shared Vision 2010, page 2.) 

23.13.       A key player in County environmental and land use politics is Lenore (Lennie) Roberts.  Ms. Roberts is a paid political consultant and lobbyist for mainstream “environmental” groups, who has long claimed to have such extensive influence with the Board of Supervisors that she was described on an environmental group’s website as  is considered by many to be the unelected sixth member of the board.  (Source: Committee for Green Foothills Website, dated 10/2/02; “http://www/greenfoothills.org/about/advocates.html”.)

24.       This claim was removed from the web site after it was brought to the public’s attention at a Board of Supervisors meeting.)  Plaintiffs are informed and believe and thereon allege that Ms. Roberts has worked as a consultant for several local landowners seeking permit approvals or other land use determinations by the County.    

1.In addition, the decision was wrongful and a prejudicial abuse of respondent’s authority because it was based on respondent’s unlawful demand to collect more than $20,132.80 in “penalties” as a condition for approval of these permits.  Because these penalties exceed the reasonable cost of the services provided, they are a “special tax.”  These special taxes have not been approved by a two-third’s vote of the electorate and are, therefore, charged by respondent in clear and direct violation of California Government Code section 66014 and Article XIIIA, section 4 of the California Constitution (commonly known as “Proposition 13”). 

Furthermore, respondent’s decision is not supported by the findings for the reasons and in the particulars stated below.  A true copy of respondent’s decision is attached as exhibit A and incorporated herein.

Respondent’s actions with respect to petitioner Neves are in violation of the County’s published “Mission Statement” and its “10 Commitments & 25 Goals” to residents of the County wherein those that are disabled have been promised “a better quality of life” and affordable housing opportunities.  Respondent Neves is at grave risk of losing his affordable housing and his quality of life because of the actions of respondent in voting to overturn the unanimous decision of the Planning Commission, which vote petitioners believe was politically motivated and based on unlawful demands.

Respondent County’s ordinances do not specify if appellants took their appeal from the Planning Commission to the Board of Supervisors as of right, nor do respondent’s ordinances specify what rights the parties have to introduce evidence at hearings held by the Board of Supervisors. (San Mateo County Zoning Regulations section 6328.16.)  Accordingly, petitioners allege that appellants’ appeals were of right and that the Board of Supervisors was required to admit evidence so that this petition may be heard pursuant to the provisions of Code of Civil Procedure section 1094.5.  Alternatively, petitioners have also alleged below the contrary and asserted claims under other sections of the Code of Civil Procedure.

Furthermore, this action is brought pursuant to Government Code section 66024 on the grounds that this action attacks and seeks to set aside development fees imposed by a county as a condition of a development on the basis that the development fee exceeds the cost of the service, facility or regulatory activity for which it was imposed.  In compliance with Government Code section 66024(b)(2), petitioners have requested at least 30 days before filing this petition that respondent County provide them with a copy of the documents that establish that the development fee does not exceed the cost of the service, facility or regulatory activity for which it was imposed.

Furthermore, this action is brought pursuant to Public Resources Code section 30802 on the grounds that petitioners are persons who are aggrieved by the decision or action of a local government that is implementing a certified local coastal program or is exercising its powers pursuant to section 30600.5, and which decision or action may not be appealed to the Coastal Commission.

Petitioners are unaware of the true names and capacities of the entities and individuals sued as Doe 1 through Doe 100, and therefore sue them by such fictitious names. Petitioners allege that Doe 1 through Doe 50 are employees, agents, officers, agencies or commissions of the County of San Mateo who are responsible in some manner for the activities and events alleged herein.  Petitioners will seek leave of court to amend this petition to state their true names, capacities, and wrongful acts when they have been ascertained.

1.Petitioners have exhausted their administrative remedies, because they have no right of administrative review of respondent’s decision. (Public Resources Code section 30603.)

1.Petitioners do not have a plain, speedy, and adequate remedy in the ordinary course of law.

 

PERMIT APPLICATION PROCESS AND RELATED EVENTS:

1.25On February 27, 1998, Cynthia Giovannoni, co-owner of property adjacent to the Property across Higgins Canyon Road asked respondent to investigate the Property for buried hazardous materials, storage of nonagricultural heavy equipment and unpermitted buildings.14.

On March 4, 1998, respondentthe County conducted an investigation of Plaintiff’sthe Property in response to a request by a neighbor, Cynthia Giovannoni.  Property and concluded Ms. Giovannoni’s allegations of buried hazardous materials and storage of nonagricultural heavy equipment were unjustified, but noted “several permitting issues.”

On March 12, 1998, the Countyrespondent cited petitionerPlaintiff Oscar Braun for development in the Resource Management-Coastal Zone without a development review permit. The CountyRespondent also stated that petitionerthe Brauns  needed a farm labor housing permit for Mr.petitioner Neves’ residence and a stable permit for the stable.  Oscar Braun had been previously led to believe that the developments and activities were exempt from permits.   The County issued a final notice of violation on or about July 20, 1998.  Mr. Braun arranged to meet with County planner Laura Thomson at her convenience to prepare and file all necessary applications. 

Because the dispute was between neighbors, respondent suggested that the parties mediate their dispute using the Peninsula Conflict Resolution Center. Petitioners and the Giovannonis agreed to participate, and, with respondent’s encouragement and consent, set a mediation date in May 1998. During the mediation, the Giovannonis decided not to participate after all and withdrew.

Following the Giovannonis’ decision to terminate the mediation, respondent issued a final notice of violation on or about July 20, 1998.  Respondent’s procedures call for legalization of structures by application for appropriate permits.  Petitioner Oscar Braun made an appointment with County planner Laura Thompson on a date of her choosing, September 15, 1998. Ms. Thompson had asked to delay the appointment for a lengthy period, because of her workload, and petitioners agreed.  The purpose of the meeting was for petitioners to prepare and file all applications and pay all fees that respondent required to resolve the notice of violation in accordance with respondent’s practices and procedures.

On September 14, 1998, respondent sent Sheriff officers to the Property without notice to the Brauns and without warrant.  The officers did in fact enter the Property without notice to or the permission of the Brauns and attempted service of papers on Oscar Braun, who was then in the residence and in the midst of an international conference call.  Mr. Braun informed the officers that no action was necessary on their part as he had a scheduled meeting with the County on the very next day and showed them his appointment book to this effect.  Mr. Braun demanded that, as the officers had entered without permission or warrant and as he was engaged in other business, they withdraw from the Property.  The officers begrudgingly withdrew.

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2615.       On September 15, 1998, while Mr.Mr. Braun was meeting with Ms.County planner Laura Thompson in the rCountyespondent’s offices at the time and date she requested, Sgt. Dal Porto of the San Mateo County Sheriff’s Departmenta Sheriff’s officer interrupted Mr. Braun as he was attempting to complete the application and pay whatever fees were required,; the officer didirrected planner Thompson to leave the room.  When Ms. Thompson left respondent’s conference room, she took with her the mostly completed applications.  By directing Ms. Thompson to leave, Sgt. Porto intentionally prevented Mr. Braun from filing his permit applications.  The Sheriff’s officer, and  then served petitioner OscarMr. Braun with a citation for nuisance for maintaining the very structures Mr. Braun was in the process of legalizing with the assistance of Ms. Thompson.  The sole purpose for having Ms. Thompson leave the room was to preclude Mr. Braun from completing the application.

On October 27, 1998, the San Mateo County Municipal Court conducted a hearing on the nuisance citation.  Mr. Braun, having been threatened by respondent, asked the court to continue with supervision of the dispute.  The court granted Mr. Braun’s request and advised Mr. Braun that he could use subpoena power to bring all necessary county representatives to the court to resolve the legalization issues.27.16.      

On December 1, 1998, the trial of the nuisance citation for maintaining unpermitted structures was held before Municipal Court Referee Kathleen Henry as Case No. 941588.  The Brauns established that The court inquired if the Braunsthey had attempted to and were were prepared to make all appropriate applications for permits to legalize the structures and to pay all appropriate fees. , and that they Mr. Braun responded that he was and that he was in fact attempting to do so when respondent’s officer intervened in the process and ejected Ms. Thompson from the room.  Ironically, County planner Laura Thompson had with her the application forms that Mr. Braun had made on September 15, 1998, but was prevented from filing, thereby establishing that the Brauns were well on their way to finishing the process when the County instead interrupted, ejected the planner, and served the citation. 

 

28.       During the court hearing, Ms. Thompson, on behalf of respondentthe County and as its agent, requested a court recess to calculate the fees due from the Brauns, which request the Court granted.  After the recess, Ms. Thompson informed the Court that the total fees required for petitionerPlaintiffs to submit with their applications for legalization of the stable, tractor shed, agricultural barn, and farm labor housing unit was $3,720. Attached as exhibit B and incorporated herein is a true copy of Ms. Thompson’s notes where she calculates the total fees due.   

29.     At the direction of the court, the parties met the following day to

complete the applications and pay the fees. Mr. Braun offered to make petitioners’ application for legalization of structures and to pay all fees in full in court, but respondent, by Ms. Thompson, indicated that it did not have the means to accept payment and application at the courthouse. Accordingly, the Court directed Mr. Braun and respondent to meet the following day and directed respondent to certify to the Court that the Brauns made their applications and full payment. The         Brauns

On December 2, 1998, petitioners again sought to complete their application for legalization of structures and for the relevant coastal development, planning, housing and stable permits, all at the direction of and in consultation with respondent.  Petitioners paid the full fee calculated during trial by Ms. Thompson – $3,720 – and received a receipt therefore.  Subse­quently, as alleged below, the County failed to credit the Brauns with this payment and threat­ened the Brauns with denial of their permit applications if they did not pay these same monies again.

By letter dated December 3, 1998, respondent certified to the Court that petitioners had made their application for legalization and had paid their fees.  Respondent also stated that it was reviewing the application for completeness and would advise the Court when the review was complete.  A true copy of respondent’s correspondence to the Court is attached as exhibit C and incorporated herein.

 

3017.       On January 20, 1999, Referee Henry heard argument regarding the complete­ness of the legalization application.  Following testimony by planner Thomp­son, Referee Henry ruled that the application lacked just two items to be complete: (1) Aa topographical site plan, and (2) elevation drawings of structures to be legalized.  The Court then entered an order requiring that those two items – nothing else – needed to be submitted to complete the permit applicationapplications.s.  A true copy of the Court’s order is attached as exhibit D and incorporated herein.

T Thereafter, petitionerPlaintiffs submitted the items identified in the Court order., and the application was complete.

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3118.       On July 26, 1999, respondentthe County notified petitionerPlaintiffs that the topographical map, including driveway profile survey, met respondentthe County’s requirements.  However, the CountyRespondent advisedthen demanded that the eleva­tion drawings needed to be revised.  Significantly, as part of respondent’s pattern of harassing the Brauns, respondent The County then added several new requirements not included in the court’s January 20, 1999, order or otherwise made or disclosed by respondentthe County in a timely or lawful fashion. 

3219.       On April 28, 2000, without prior notice to Plaintiffs, the County recorded a Notice of Continuing Nuisance with respect to the Property.  The County recorded such notice even though it had certified to the Municipal Court that Plaintiffs’ applications to legalize the unper­mitted structures were complete.

1.Over the next 12 months, petitioners’ efforts to obtain prompt and equitable processing of their permit applications were frustrated by respondent’s actions and inactions.  This fru­stra­tion persisted despite respondent notifying the Court in October 1999 that the applications were complete and that the court file should be closed.  The court case was formally closed on December 16, 1999.  Nevertheless, without explanation, respondent failed to process the permit applications.  332067.

PetitionerPlaintiff Brauns lawfully sought to use their property and lease a

 portion of it for the purpose of cell phone communications antennae. 

During 1998 and 1999, Nextel investigated with petitionerPlaintiffs Braun and  with respondentthe sCounty installing several cell-phone antennae on Plaintiffs’the Property.  Thereafter, beginning about Janu­ary 2000, Sprint PCS also undertook an investigation with petitionerPlaintiffs Braun and with respondentthe sCounty regarding installing several cell-phone antennae on Plaintiffs’the Property.  Sprint PCS proposed 15-foot antennae designed to look like naturally occurring pine trees, and the Brauns signed and recorded leases for multiple telephone tree antennas with both companies. 

34.       The sites would have provided cellular service to the rural coastal zone area from Half Moon Bay to Pacifica, and over the life of the lease would have produced millions of dollars of rental income to the Brauns..

On April 28, 2000, without prior notice to Petitioners, respondents recorded a Notice of Continuing Nuisance with respect to the Property.  Respondents recorded such notice even though it had certified to the Municipal Court that petitioners’ applications to legalize the unper­mitted structures were complete.  

On July 6, 2000, Oscar Braun complained by letter to respondent County that respondent had informed Sprint PCS that the County would not allow Sprint to process an application to locate its cell-phone antennae on the Property in retaliation against the Brauns.  A representative of Sprint PCS representative informed Mr. Braun that a County staff member told the Sprint PCS representative that the staff member’s superior at the County Planning Department had quoted respondent County’s official as saying that his boss had instruc­ted the staff member him to block or frustrate any applications for the Plaintiffs’ Property because of  Mr. Braun’s outspokenness and willingness to sue the County.   The Sprint Representative was also told to look elsewhere for their antennae sites, and that respondentthe County “knows how to deal with Oscar..”  On July 6, 2000, Mr. Braun complained by letter to the County, but the County never changed positions.

35.         The County’s intentional and retaliatory obstruction tactics ultimately caused Sprint PCS and Nextel to back out of the leases, resulting in significant financial damages to the Brauns into the millions of dollars.  The Brauns are informed and believe and thereon allege that in continuing retaliation against these Plaintiffs and with a desire to cause the Brauns harm, the County maintained the nuisance claim “to deal with Oscar” and thereby preclude the Brauns from earning rental income from the lucrative practice of providing cell phone antennae at this unique location.

36.       2178.       Because of the continuing inaction of respondent County to process their applications, the Brauns retained legal counsel, who reviewed respondent’s planning files and informed respondent by letter dated August 3, 2000, that he was unable to discover anything in respondent’s records that indicated the permit applications were incomplete.

After further discussions between petitioners and respondent County, respondThe Planning Department ent finally gave further notice on October 17, 2000, that the permit applications have been determined to be complete.  Despite this position, petitioners Save Our Bay and Brauns are informed and believe and thereon allege that in continuing retaliation against these petitioners and with a desire to cause the Brauns harm, the County maintained the nuisance claim “to deal with Oscar” and thereby preclude the Brauns from earning rental income from the lucrative practice of providing cell phone antennae at this unique location.  At that point, the permitting process had taken over two years. In fact, the Brauns have suffered serious economic harm as a result of the County’s position. 

The Brauns are informed and believe and thereon allege that the County intended to deal harshly and with discriminate against the Brauns, because Oscar Braun has been a critic of the County and has been willing to stand up to the County and expend all necessary resources to do so whereas others often do not have the resources to do so.

1.On or about August 7, 2001, without explanation, despite the fact that the governments of the United States and the State of California recognize the Braun property as a bona fide farm activity, respondent’s Certificate of Need Committee failed to approve petitioner’s application for a farm labor housing unit to legalize Mr. Neve’s residence.  However, respondent suggested that petitioners apply for a floating density credit to develop the same housing unit as an “affordable housing unit” instead.  Under the economic duress of the County‘s on-going failure to process the Brauns application for the cell phone antennae, Petitioners accepted this change and agreed to all conditions requested by respondent on August 10, 2001.

 

PlPLANNING COMMISSION DECISION APPROVING ALL PERMITS:

372289.       On November 14, 2001, Planning Commission staff informed the Planning Commission that the Property with the structures to be legalized complied with all applicable General Plan policies, and was in conformance with the Local Coastal Program.  and Planning staff recommended approval of the permit on payment of $3,720 in initial fees (overlooking the fact that Oscar the Brauns had already paid the initial fees), and a “penalty” of $3,720 that had never been assessed by the respondent sCounty in the preceding three years since the application was first filed.

38.      

On November 14, 2001, three and a half years after the process began the Planning Commission unanimously approved the Coastal Development Permit, Resource Management-Coastal Zone Permit and Stable Permit with the conditions noted by the staff.  In so doing, the Planning Commission legalized the stable, tractor shed, and agricultural barn, approved replacement of one 8,000-gallon water tank with two 5,000-gallon water tanks, and assigned a floating density credit to Mr. Neves’ residence thus designating it as an affordable housing unit.  At the same time, the Planning Commission rejected all objections to approval made by three objectors. 

 

 

HEARINGS BEFORE BOARD OF SUPERVISORS:

39231920.       On December 3 and 4, 2001, two of the objectors to approval of the permits, Cynthia Giovannoni and Lennie Roberts, filed appeals of the Planning Commission decision to the Board of Supervisors.  The appellants were Ms. Giovannoni, the neighbor whose complaint started the County investigation into Plaintiffs’the Property, and the self- proclaimed ‘sixth member’ of the Board of Supervisors, Lennie Roberts. 

40.       24.        At the Board of Supervisors meeting on January 15, 2002, Ms. Roberts used her considerable influence over the Board of Supervisors to criticize Mr. Braun in opposition to his permit application.  She recited the following activities as reasons why the application should be denied:  Mr. Braun filed complaints against state parks and the county public works department; appealed coastal development permit applications of neighbors he alleged to be in violation of environmental and land use laws; alleged the presence of an unpermitted waste dump on adjoining land owned by a local land trust; and made appeals to the assessor’s office regarding tax impacts of local environmental problems on adjoining properties.   Each of these activities is protected by the First Amendment.   

412501.       On January 15, 2002, the San Mateo County Board of Supervisors made interim rulings on the appeals from the Planning Commission decision that approved petitionerPlaintiffs’ permits. First, the Board of Supervisors determined that all building permit fees and “penalties” (emphasis added) for building without building permits were due on December 2, 1998, when the initial permit applications were filed.  The Board of Supervisors directed respondentthe County’s planning staff to calculate and collect all building, development, stable and planning fees, including all “penalties,” that, allegedly, should have been charged and collected by respondentthe County on December 2, 1998.  Second, the Board of Supervisors directed its staff to inspect Plaintiffs’the Property yet again  for any other building, planning or development permit violations that were not included in the current legalization application.  A true copy of the Board of Supervisors’ statement of its interim ruling is attached as exhibit E and incorporated herein.

422612.       On February 11, 2002, respondentthe County informed petitionerPlaintiffs that the additional fees assessed by the Board of Supervisors on January 15, 2002, totaled $27,238.50, which respondentthe County described as “payment of all fees due for planning, building and environmental health permits, including all applicable investigation fees and penalties due for construction without permits.” (Emphasis added.)

 

4327.       On or about April 2, 2002, the County conducted a “SWAT” type raid on the Property, looking for any additional violations to include on the application.  The incursion consisted of several armed County officers and at least three patrol vehicles from the County’s ‘Rural Crimes Unit,’ in addition to at least three other County vehicles.  Plaintiffs are aware of no other such display of force, intimidation and overkill for inspection of similarly situated applicants for a residential permit.  Plaintiffs are informed and believe and thereon allege that this display of force was designed to intimidate Mr. Braun from speaking out publicly on political issues as he had done in the past.

442823.       On April 10, 2002, respondentthe County’s planning staff amended its report of February 11, 2002, and forwarded the amended report to the Board of Supervisors.  The amended staff report stated that staff had determined that the Brauns had roofed a patio area without permits and that the application for legalization should be amended to include this, along with a “storage shed adjacent to stable” that is actually a movable shade for horses, and a “storage container” that was illegally placed on the Property by the spouse of the Brauns’ neighbor, appellant  one of the appellants – Cynthia Giovannoni. This “storage container,” which the  Giovannis later admitted in testimony before the Board of Supervisors to placing on the Brauns’ Property, is actually a huge, landfill-solid-waste-disposal trailer.   

 

452934.       RespondentThe  County now claimed petitionerPlaintiffs owed $45,073.24 of which $5,718.50 had been paid.  Of the total, respondentthe County described $36,543.08 as “investigation fees,,”  i.e., penalty assessments. which it justified as follows:  “Investigation fees levied are in accordance with the applicable County ordinances.  The purpose, among other things, is to discourage construction and installation of unpermitted structures for the benefit of general public health and welfare and to compensate the County for additional expense involved in dealing with violations.”

 

463045.       In communications with respondentthe County, petitionersPlaintiffs amended their applications to include the patio enclosure.  PetitionerPlaintiffs disputed the need for a building permit for the movable horse shade and denied seeking legalization of the  Giovannonisneighbors’ landfill-solid-waste-disposal trailer that was trespassing on the Property.  Despite this trespass, the County has never ordered the neighbor to remove the trailer, and it remains on the Brauns’ Property.

473156.       On April 16, 2002,  and again on June 18, 2002, the Board of Supervisors heard further  evidence.  Cynthia Giovannoni stated to the Board that her husband had placed the landfill-solid-waste-disposal trailer on the Property with the permission of Gino Magri, whom she claimed to be petitioners’ authorized agent.  The Board of Supervisors continued the matter for further review and evaluation. 

6Respondent’s Board of Supervisors held a further hearing in this matter on June 18, 2002, and took further evidence.  The Board of Supervisors continued the matter pending additional review. 

/ / /

7At all times before the Board of Supervisors, the employees of the County, including Planning Administrator Terry Burnes, asserted that the Brauns’ property development was consistent with the type of land planning and use that would routinely be approved if applied for and that there were no valid planning issues the County needed to be concerned with other than environmental health issues with respect to water and septic systems.  Petitioners stated on the record that regardless of any disagreement they had with the County about septic system requirements or locations, they would comply with any requirements of County agencies.  Staff had previously recommended approval of the Brauns’ property development to the respondent’s Planning Commission, which, despite the arguments of those who later appealed the decision, voted unanimously to approve the Brauns’ legalization request.

 

483289.       On July 17, 2002, County Counsel Thomas F. Casey, III, submitted a further report regarding the status of the dispute with petitionerPlaintiffs.  County Counsel reported that petitionerPlaintiffs’ application complied with all County regulations as to the enclosure of the patio, the stable, the tractor shed, the agricultural barn, the water tanks and the storage shed adjacent to the stable. County Counsel reported that as to these items (not the affordable housing unit), the only dispute was petitionerPlaintiff’s refusal to pay sums assessed for investigation fees, which petitionerPlaintiffs assert are unlawful charges.  Although not explained in this report, bIn an apparent concession that the County had assessed unlawful fees, etween April 10, 2002, and July 17, 2002, County Counsel had, upon challenge, reduced respondentthe County’s demand for so-called “investigation fees” from $36,543.08 to $20,132.80 between April 10, 2002, and July 17, 2002,. . 

29

493301.       Throughout the appeal process, petitionerPlaintiffs Braun were subjected to the Countyrespondent’s capricious demands that they pay all County fees – even fees that the County eventually admitted were either unlawful or already paid – by particular dates and were subjected to respondentthe County’s position that the Brauns’ failure to meet such demands in full would cause the County to uphold the appeal.

50.         Plaintiffs objected to the arbitrary penalties and investigative fees charged by the County, because the fees and charges violate provisions of the California Government Code that require that such fees and charges be equivalent to the reasonable estimated cost of processing permits and reviewing structures.  

51.       Thus, Plaintiffs contend that these fees are unlawful under the California Constitution, California Statutory Law and County ordinance.   These repeated demands for payment of unlawful charges further demonstrate that the County’s actions toward petitionerPlaintiffs were unlawful, arbitrary and retaliatory.

 

52.       34.       The County ultimately alleged that Plaintiffs do not comply with County regulations regarding only one structure to be legalized – the affordable housing unit, which has been Mr. Neves’ residence for approximately 10 years.  The County wrongly asserts that the septic tank for the unit is in violation of county ordinance, because it is too close to the unit, when in fact the County has been far more flexible with other applicants in the past in dealing with similar septic tank issues.  The County treated the Brauns differently.  The County also asserts that the water supply of the permitted well on the Brauns’  Property is insufficient to supply both the house and Mr. Neves’ residence, but ignored the fact that there is a second well on the Brauns’ Property that is not subject to the water well ordinance due to its age, pursuant to County Ordinance.

53.       Accordingly, all of the County’s objections to the affordable housing unit are inaccurate in fact and in law, with the result that Mr. Neves will lose his affordable housing unit.  In order to obtain approval, the Brauns offered to comply with all septic system conditions mandated by the county, but even this concession failed to placate the County in its quest to punish the Brauns. Regarding petitioners’ request to legalize the affordable housing unit for a disabled low-income farm laborer, which is Mr. Neves’ residence, County Counsel reported that the unit did not meet all County environmental health requirements, as will be discussed in detail in the next section.  County Counsel also provided the Board of Supervisors with a declaration of Gino Magri who denied under oath ever being the agent of petitioners or ever telling Cynthia Giovannoni she could place the landfill-solid-waste-disposal trailer on the Property.  Mr. Magri further averred that he observed Cynthia Giovannoni’s company place the landfill-solid-waste-disposal trailer on the Property.  Despite the County’s official commitment to “help vulnerable people” including the “disabled” and to assist them with affordable housing, respondent, by its improper vote to overturn the unanimous vote of the Planning Commission and the County staff’s recommendations to the Commission, has not sought to help, assist or accommodate the needs of a disabled resident and have placed his affordable housing at risk of loss with no ready available substitute.

54.       3512.       On July 23, 2002, respondentthe  County, acting by its Board of Supervisors, (with Supervisor Rose Jacobs Gibson absent), granted the appeal fromof the unanimous Planning Commission decision that had approved petitionerPlaintiffs’ permits and instead denied all permit applications outright. (Decision, exhibit A.)  

55.       Plaintiffs are informed and believe, and thereon allege, that tThis action was retaliatory, wrongful, unlawful, and a prejudicial abuse of respondentthe County’s authority, and was ultimately motivated by a desire to punish Mr. Braun for his outspoken criticisms of the County’s policies and practices. 

56.       Plaintiffs are informed and believe, and thereon allege, that the county violated their right to equal protection guaranteed by the Fourteenth Amendment by treating them differently than other similarly situated property owners.   Plaintiffs are also informed and believe, and thereon allege, that the County violated their Fourteenth Amendment right to procedural due process by depriving them of the right to have land use determinations made by a fair and impartial decision maker..  Furthermore, respondent’s decision is not supported by the findings for the reasons and in the particulars stated herein.

572Respondents’ failure to approve the permits in a timely fashion has caused Sprint PCS to revoke its contract with the Braun’s for installation and maintenance of cell-phone antennae on the Property and has caused the Brauns significant financial damage.

 

Respondent County’s Decision Is Retaliatory, Wrongful, Unlawful and a Prejudicial Abuse of Authority; Moreover, the Findings are Not Supported by the Facts:

The decision (exhibit A) provides that the only reason respondents refuse to legalize the stable, tractor shed, agricultural barn, water tanks, storage shed against to the stable, and roof enclosure of the main house was petitioners’ refusal to pay “required fees for issuance of permits“ for these structures.  As demonstrated above, the “required fees” are in fact the so-called “investigation fees” which respondent County has frequently referred to as “penalties.”

/ / /

These “investigation fees” are, in fact, unlawful.  Government Code section 66014 provides in relevant part: “Notwithstanding any other provision of law, when a local agency charges fees for zoning variances; zoning changes; use permits; building inspections; building permits; … or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 or under any other authority; those fees shall not exceed the estimated reasonable cost of providing the service for which the fee is charged, unless a question regarding the amount of the fee charged in excess of the estimated reasonable cost of providing the services or materials is submitted to, and approved by, a popular vote of two-thirds of those electors voting on the issue.”  Pursuant to Government Code section 54951, respondent County is a “local agency” within the meaning of the Government Code.

Respondent County assessed three types of “investigation fees” against petitioners: building, planning and environmental health.  By Interdepartmental Correspondence to respondent’s Board of Supervisors dated June 11, 2002, County Counsel Thomas F. Casey, III, conceded the illegality of all “investigation fees” for environmental health, because such fees have never been authorized by any San Mateo County ordinance or resolution of the Board of Supervisors. Accordingly, despite respondent’s prior threat to deny the subject permits if the unlawful fees (as well as previously paid fees) were not paid (and repaid in the case of previously paid fees) respondent ceased claiming such unlawful fees as a condition of approving these permits; however, it did not concede its unlawful position until June 11, 2002.

However, respondent County continues to wrongfully assess and claim “investigation fees” for building permits, citing as authority Board of Supervisor’s Resolution No. 61978, which provides on page four of Attachment 2 (the list of approved building fees), at Part C., subpart 4: “PENALTY FOR BUILDING WITHOUT A PERMIT:  10 times the permit fee to a maximum of $3,000 plus the permit fee.  Each permit is charged 10 times fee plus permit fee (i.e., building, electrical, plumbing, heating).” (Capitalization in original; bold added.)

Accordingly, Resolution No. 61978 unambiguously states that the “investigation fees” for building permits that respondent County has assessed petitioners as the pre-condition to approval of its planning, development, stable and affordable housing permits are, in fact and in truth, unlawful penalties.  Such penalties violate Government Code section 66014, because they are not reasonable estimates of the actual cost of processing building permits when the applicable structures are already constructed.  Respondent has failed to meet its burden to prove that these “investigation fees” are not special taxes within the meaning of California Constitution, Article XIIIA, section 4.  (Beaumont Investors v. Beaumont-Cherry Valley Water District (1985) 165 Cal.App.3d 227, 235.)

Respondent County also continues to wrongfully assess “investigation fees” for planning, also citing as authority Board of Supervisor’s Resolution No. 61978, which provides on page three of Attachment 1 (the list of approved planning fees) at Note 1: “When a violation of the Zoning Ordinance or Subdivision Ordinance (or any other ordinance or law establishing the requirements for the permits or approvals referenced in this schedule) includes or results from the failure to obtain a required permit, the fee for obtaining the permit required to correct the violation shall be double the fee amount shown, except for grading and tree cutting or trimming violation, for which the fee shall be ten times the amount shown.”

Accordingly, Resolution No. 61978 further shows from its text that the “investigation fees” for planning services that respondent has assessed petitioners as the pre-condition to approval of its planning, development, stable, and affordable housing permits are, in fact and in truth, unlawful penalties.  Such penalties violate Government Code section 66014, because they are not reasonable estimates of the actual cost of processing planning permits when the applicable structures are already constructed.  Respondent has failed to meet its burden to prove that these “investigation fees” are not special taxes within the meaning of California Constitution, Article XIIIA, section 4. (Beaumont Investors v. Beaumont-Cherry Valley Water District (1985) 165 Cal.App.3d 227, 235.)

In addition, respondent County has stated several times in writing, as partially noted above, and orally during evidentiary hearings in this matter that the investigation fees are imposed by respondent as “penalties” rather than as the reasonable estimated cost of reviewing structures placed on real estate lots without first obtaining all applicable permits.  Such statements are further admissions of respondent the so-called “investigation fees” are in truth unlawful penalties, that is, “special taxes” within the meaning of the California Constitution.  Conditioning its permits on the payment of unlawful penalties is an abuse of discretion and an unlawful act in excess of authority.

In addition, by virtue of the building and development permits the County issued for the original development and construction of the resident and the water tank, The Brauns have a vested right to maintain and repair the water tanks. These tanks are necessary for fire suppression for the Property and for the local community.

In addition, except for fees associated with the patio enclosure, all fees asserted by respondent County are barred by the applicable statutes of limitation, Code of Civil Procedure sections 338(a) (“An action upon a liability created by statute, other than a penalty or forfeiture.”) and 340(1) (action upon a statute for a penalty or forfeiture).  Respondent calculated and assessed fees for planning, development and stable when petitioners filed their applications on December 2, 1998.  All “investigation fees” or other fees for planning, development and stable permits were due and payable on that date, and the applicable statutes of limitation began running on December 2, 1998. (City of Santa Cruz v. Pacific Gas & Electric Co. (2000) 82 Cal.App.­4th 1167, 1178.)  Furthermore, because respondent ruled on November 15, 2001, that all building permit fees, including associated “investigation fees,” were due and payable on December 2, 1998, and no party has appealed or challenged that determination, such fees are also barred by the applicable statute of limitations.

Respondent County has conceded that it may be time-barred from suing petitioners to collect such fees; however, respondent wrongly asserts that it may condition its issuance of fees on petitioners agreeing to pay uncollectible fees and so continues to demand payment.

Respondent County alleges petitioners are not in compliance with County regulations regarding only one structure to be legalized – the affordable housing unit, which has been Mr. Neves’ residence for approximately 10 years.  Respondent has acted in abuse of its discretion to deny permits on this basis, because petitioners have continuously agreed to condition all approvals on meeting any applicable environmental health regulation.  The Planning Commission decision contained this condition, and petitioners accepted it.

In addition, respondent County’s assertion of noncompliance with regulations is inaccurate.  Respondent asserts that the septic system for Mr. Neves’ residence was not permitted and that percolation tests must be performed for approval; in fact, percolation tests meeting all existing requirements were performed on the site of the septic system prior to its installation, the applicable fees were paid for respondent to inspect such tests, and respondent did in fact inspect such tests.

Respondent County also asserts that the septic tank is less than 100 feet from the drinking water well; in fact, the septic tank is sealed and is moveable and the County’s own publication effective at the time of the permit application states “Septic tanks must be … 50 feet [not 100 feet] from any well or the top of any stream bank.” (Exhibit F, incorporated by reference herein.)  Because it is impossible for the sealed septic tank to contaminate drinking water, respondent ordinarily and customarily waives this provision. Furthermore, petitioners have at all times offered to move the tank to any location respondent directed even though the tank is approximately 100 feet from the well, and certainly far in excess of 50 feet from the well. Accordingly, the County’s position, in violation of their own publication and despite the Braun’s offer to comply with even an invalid or discriminatory requirement, demonstrates the actions of the County to further discriminate against and harass the Brauns, even at the extent of causing the loss of housing to a disabled, low-income resident of the County in violation of the County’s published commitments.  The County has made no effort to accommodate the low-income, disabled resident nor given the low-income, disabled resident the same waivers and treatment for his residence as it gives other non-disabled residents who have obtained approval from the County for septic systems similar to Petitioners despite the public commitment by the County to “help vulnerable people, the … disabled” and to seek to have housing available to “all income levels.” (“Shared Vision 2010, The Promise of The Peninsula” by San Mateo County, Winter, 2001).

Finally, respondent County also asserts that the water supply of the permitted well on the Property is insufficient to supply both the house and Mr. Neves’ resident. In fact, there is a second well on the Property that is not subject to the water well ordinance due to its age, pursuant to County Ordinance Code 4.68.220. The second well can supply the affordable housing unit under its existing plumbing configuration and, in fact, is already plumbed as a back-up well for both the house and Mr. Neves’ residence and for fire suppression.

Accordingly, all of respondent County’s objections to the affordable housing unit are inaccurate in fact and in law, and some objections here are applied in an inconsistent and discriminatory manner.

Petitioners contend that respondent County bears the burden of producing evidence to establish that its development fees do not exceed the reasonable estimated cost of reviewing developments constructed or installed without permits compared to developments that are permitted prior to construction or installation.  (Government Code section 66024; Beaumont Investors v. Beaumont-Cherry Valley Water District (1985) 165 Cal.App.3d 227, 235.)  Alternatively, petitioners seek to introduce relevant evidence that could not, in the exercise of reasonable diligence, have been produced by petitioners at the hearings before the Board of Supervisors, although the evidence exists in respondent’s own files.  The evidence is the absence of any calculations by respondent that the reasonable estimated cost of building and planning permits where structures are built or placed before permits are received is either ten times or twice the cost of the permit itself.  No such calculations were submitted to the Board of Supervisors in connection with its consideration of Resolution No. 61978.  Pursuant to requests made by petitioners under the Public Records Act, Government Code section 6253, respondent is still reviewing its records to determine if any such calculations have ever been made during the last 29 years that it has imposed such penalties. No document produced by respondent to the date of this petition in any way supports the imposition of these penalties.

In addition, petitioners seek to introduce relevant evidence that could not, in the exercise of reasonable diligence, have been produced by petitioners at the hearings before the Board of Supervisors regarding the relationship between the Board of Supervisors and appellant Lennie Roberts, the factual basis for petitioner’s claim of retaliation, and the history of public advocacy by petitioners Save Our Bay and Oscar Braun as it pertains to the matters alleged above.

As a result of respondents’ actions and failures to act, petitioners have sustained damages for expenses and attorney fees to oppose the unlawful actions of respondents, for lost revenue from Sprint PCS and other damages in an amount to be proved at the time of trial of this matter. Petitioners Andrea Braun and Oscar Braun are entitled to recover these damages under Code of Civil Procedure section 1095.

Petitioners are personally obligated to pay their attorney for attorney services to prosecute this action.  Petitioner is entitled to recover attorney fees as provided in Government Code section 800 if they prevail in this lawsuit, on the ground that respondent County’s decision was the result of retaliatory, arbitrary, and capricious action.  3634.           The Brauns are aware of no other similarly situated applicant who has been subjected to such a continuous campaign of obstruction, investigation, and ultimate rejection of a unanimous Planning Department approval, as have the Brauns at the hands of the County.    While the Brauns have faced nothing but persecution from the County, other more politically “correct” applicants have been subjected to little more than cursory review by the County.  Some examples are set forth below.   

5837..       Plaintiffs are informed and believe, and thereon allege, that a neighboring parcel known as the Johnston Ranch contains a waste landfill of approximately 200 acres.   That parcel is now owned by the Peninsula Open Space Trust, which is closely alligned with the Committee for Green Foothills and the self- proclaimed ‘sixth member’ of the Board of Supervisors, Lennie Roberts.  The landfill threatens the health of the environmentally sensitive area and vital surface and ground water resources, yet the County has refused to thoroughly investigate the site and order adequate remediation.  Instead, the County reclassified the parcel as ‘agricultural’ in order to employ less stringent land use requirements.   Plaintiffs are informed and believe, and thereon allege, that ‘environmental’ groups such as POST are afforded better treatment by the County than persons not aligned with them or, in the case of Mr. Braun, steadfastly opposed.   

5938.       Plaintiffs are informed and believe, and thereon allege, that a local exotic animal facility known as “Wildlife Associates” which should have been required to meet strict standards and obtain permits for exotic and non-native species,  was reclassified by the County to meet less stringent ‘agricultural’ standards for animals.  Plaintiffs are informed and believe, and thereon allege, that the prior owner of the same parcel was pProhibited by the Ccounty from operatingto operate a horse stable on that property because the access road was too narrow.  However, the County hasalso allowed Wildlife Associates to operate their wildlife facility on thea parcel without widening the road.  The operator of Wildlife Associates told Mr. Braun that the self- proclaimed ‘sixth member’ of the Board of Supervisors, Lennie Roberts, was itsa well-paid consultant and would see to it that their proposed usage and adoption without permits would be approved without incident or delay.   

6039.       Yet another example is the failure of the County to order the Brauns’ neighbors, the Giovannonis (Cindy Giovanoni joined Ms. Roberts as appellants in the permit application matter) to remove the trespassing solid waste trailer from the Brauns’ Property.   The Giovannonis have admitted placing the solid waste trailer on the Brauns’ property.    Additionally, the Giovannonis run a paving and sealing business on their property and have operated it without properany permits or County supervision for years.   The Giovannonis’ activities on their property have included paving roads, rebuildingt a bridge, and draining into a local stream.   Their business was ultimately reclassified as ‘agricultutal’ by the County, subjecting them as well to less stringent standards. 

6140.       The County has forced the Brauns to conform their application to comply with a horse stable permit, when the Brauns are informed and believe that there are less than fifty residential horse stable permits in the rural lands of the County, most of which face no County enforcement, despite a County horse population of approximately 5,000.

6241.       Many other coastal residents would like to speak out in opposition to County practices and policies on issues ranging from infrastructure improvement and the proposed Devil’s Slide highway project to open space district annexation and land use issues, but are afraid of retaliation by the County. The Brauns are not alone in concluding that there are two paths available for San Mateo County coastal zone planning applicants.  If an applicant aligns with the “environmental community” and is not critical of the County, they will be treated one way; if they are outspoken against County policies and practices, they will be treated another.  Petitioners Brauns must once again invoke a request of this court, as they did in 1998, for assistance in dealing with the County.  Petitioners specifically request that the court exercise extreme care to protect the free speech rights of the petitioners and they not be subject to harassment and discrimination due to their criticism of the Board and due to the political influence of the “6th supervisor.”

634245.       This campaign of unlawful and discriminatory conduct and violation of Plaintiff Oscar Braun’s constitutional rights culminated in the County’s unwarranted July 23, 2003 denial of the Brauns’ permit applications, despite the unanimous approval of the applications by the Planning Commission and the County Counsel’s determination that the application met all County requirements, except for the unjust and arbitrary requirements imposed on the septic tank and the illegal fees demanded by the County.

6443.       The County undertook these acts in retaliation for Oscar Braun’s vigorous exercise of his rights guaranteed by the First Amendment to the U.S. Constitution, including freedom of speech, freedom of the press, and freedom to petition grievances.  The County’s actions have had a ‘chilling’ effect on Mr. Braun’s exercise of his First Amendment rights, as he must now think twice before publicly voicing his opinions.  The County’s impermissible motive was in part politically grounded and was directed at the content of his speech and to attempt to deter him from speaking out in the future.

65.       County officials have essentially admitted that the County’s motivation was to punish Plaintiff Braun for his criticisms of the County’s policies and practices.  Had Mr. Braun not been a vocal critic of the County, the Brauns would have been treated differently.  Had Mr. Braun been aligned with powerful ‘environmental’ groups and their influential consultants such as self- proclaimed ‘sixth member’ of the Board of Supervisors Lennie Roberts, the Brauns would have been treated differently.

664456.       In conducting this campaign, the County’s improper motivation to punish Mr. Braun is shown by several factors, including but not limited to:

a.         Undue delays and charges by the Planning Commission prior to the unanimous approval of the applications;

b.         Prosecution of a misdemeanor nuisance charge while the Brauns were working to complete the applications;

c.         Personal insults about Mr. Braun by County staff during the application process, in violation of County commitments and principles regarding the importance of “treating people with respect and dignity;”

d.         Obstruction (to the point of a constructive denial) of the application for cellular phone antennae on the Property, along with a staff member’s admission that Mr. Braun was being treated differently because of his political speech and lawsuits,

e.         Orchestrating a “SWAT” type incursion onto the property at the behest of the Board of Supervisors in the guise of an investigation;

f.          The assessment of unlawful and unjust fees and ‘penalties’ for the permit applications, including demands that the Brauns pay certain fees a second time despite the fact that they had already been paid;

g.         The imposition of ever- changing permit requirements and illegal penalties, including penalties for a septic system that was legal when built;

hg.         Treating the Brauns differently than similarly situated applicants by denying the applications despite unanimous Planning Department approval and despite planning staff recommendations, while politically connected neighbors are not so treated, as set forth above and in a manner to be proven at trial.  6

675.       45.       The County’s arbitrary and capricious reversal on July 23, 20023 of the Planning Commission’s unanimous approval of the Braun’s permit application was only one part of an ongoing pattern and practice of discriminatory treatment against the Brauns at the hands of County officials and policymakers dating back to 1998.  

 686.      It became the County’s standard operating practice to obstruct and oppose the Braun’s applications and their ability to make reasonable use of their property.  This standard operating practice may be described in a county officials own words as “how to deal with Oscar.” 

697.       The County employed this pattern and practice of ‘dealing with Oscar’ in retaliation for Mr. Braun’s vigorous exercise of his First Amendment rights, most notably the right to petition grievances, the right to free speech and the right to freedom of the press.   This pattern and practice is part and a result of a wider County pattern and practice of yielding to undue influence by ‘environmental’ groups and their leaders, such as self proclaimed ‘sixth supervisor’ Lennie Roberts, in planning and land use decisions at the expense of the wishes of local residents of coastal San Mateo county.

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FIRST COUNT

 

(Violation of Civil Rights, 42 U.S.C. §1983,

in Retaliation for Exercise of Free Speech,

Freedom of Press and Freedom to Petition Protected by First Amendment)

 

7068.       Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through 6745, inclusive, as though fully incorporated herein and made a part hereof.

71.                                      The Brauns are entitled to the protections of the First Amendment to the United States Constitution, including but not limited to the Freedom of Speech, Freedom of the Press, and Freedom to Petition Grievances.   These First Amendment rights apply to the plaintiffs pursuant to the Fourteenth Amendment.

72048.       As alleged herein, the County has deprived the Brauns of their civil rights by its conduct alleged above, by penalizing the Brauns unfairly in retaliation for their protected First Amendment activities, and by treating the Brauns in a manner differently from similarly situated persons.

731.       The Brauns are informed and believe, and thereon allege, that this improper conduct was pursuant to a County policy and/or custom under which County officers and policymakers directed that planning decisions be implemented in a retaliatory and disparate fashion as against the Brauns, based on the Brauns’ protected activities, and under which county officers and policymakers ratified said disparate treatment of the Brauns.

742.       49.       Said County officers and policymakers acted and continued to act under color of state law in depriving the Brauns of their civil rights, in violation of 42 U.S.C. § 1983.

753.       50.       As a proximate result of the County’s conduct, and the facts alleged herein, Plaintiffs have been damaged in an amount to be proven at trial.

 

SECOND COUNT

(Violation of Civil Rights, 42 U.S.C. §1983, Of Equal Protection)

76451.       Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through 7347, inclusive, as though fully incorporated herein and made a part hereof.

77552.       The Brauns are entitled to equal protection of the laws, a right protected by the Fourteenth Aamendment to the United States Constitution.  

78653.       Ass alleged herein, the County has deprived the Brauns of their civil rights by its conduct alleged above, by treating the Brauns in a manner unlike similarly situated persons and by imposing conditions on the Brauns’ residential permit application that were not imposed on similarly situated persons.

797.       The Brauns are informed and believe, and thereon allege, that this improper conduct was pursuant to a County policy and/or custom under which County officers and policymakers directed that planning decisions be implemented in a retaliatory and disparate fashion as against the Brauns, based on the Brauns’ protected activities, and under which county officers and policymakers ratified said disparate treatment of the Brauns.

807854.       Said County officers and policymakers acted and continued to act under color of state law in depriving the Brauns of their civil rights, in violation of 42 U.S.C. § 1983.

817955.       As a proximate result of the County’s conduct, and the facts alleged herein, Plaintiffs have been damaged in an amount to be proven at trial.

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THIRD COUNT

(Violation of Civil Rights, 42 U.S.C. §1983,

 Violation of Procedural Due Process)

82056.       Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through 7955, inclusive, as though fully incorporated herein and made a part hereof.

83157.       The Brauns are entitled to substantive due process under the Fourteenth Amendment to the United States Constitution. 

842.58       .       As alleged herein, the County has deprived the Brauns of their civil rights by its conduct alleged above, by utilizing government processes for illegitimate purposes including, inter alia, penalizing the Brauns unfairly in retaliation for their protected First Amendment activities, and treating the Brauns in a manner differently than other similarly situated persons.  County officials and policymakers were subject to undue influence of outside lobbyists for ‘environmental’ groups as alleged herein.   The County’s conduct deprived the Brauns of their right to a fair and impartial decision maker. 

85359.       As alleged herein, the County’s conduct was arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.  The County officers and policymakers acted engaged in grave unfairness in the discharge of their legal responsibilities, and deliberate and arbitrary abuse of government power.  The County improperly interfered with the process by which permits should be issued, where the Brauns were otherwise entitled under law to the permits, and the County officers and policymakers acted for improper motives, based on political animus and/or personal animosity.  

86460.       The Brauns are informed and believe, and thereon allege, that this improper conduct was pursuant to a County policy and/or custom under which County officers and policymakers directed that planning decisions be implemented in a retaliatory and disparate fashion as against the Brauns, based on the Brauns’ protected activities, and under which county officers and policymakers ratified said disparate treatment of the Brauns.

 

87561.       As a proximate result of the County’s conduct, and the facts alleged herein, Plaintiffs have been damaged in an amount to be proven at trial.

8866278.       As a result of the County’ actions and failures to act as set forth in all three causes of action herein.  , Plaintiffs have sustained damages for expenses and attorney fees to oppose the unlawful actions of the County, for lost revenue from Sprint PCS and Nextel and other damages in an amount to be proved at the time of trial of this matter. Plaintiffs Andrea Braun and Oscar Braun are entitled to recover these damages under 42 U.S.C.A. § 19883.

8976389.       Plaintiffs are personally obligated to pay their attorney for attorney services to prosecute this action.  Plaintiff is entitled to recover attorney fees if they prevail in this lawsuit, on the ground that the County’s decision was the result of retaliatory, arbitrary, and capricious action. 

PRAYER

ThereforeWHEREFORE, , petitionersPlaintiffs pray that they recover as follows::

1.   A peremptory writ of mandate issue, pursuant to Code of Civil Procedure section 1094.5, directed to respondent County and compelling respondent

(a)   to set aside its decision dated July 23, 2002;

(b)   to grant petitioners’ all necessary permits to allow legalization of their horse stable, tractor shed, agricultural barn, storage shed adjacent to the stable, replacement of one 8,000-gallon water tank with two 5,000-gallon water tanks, enclose a 720-square-foot patio with a roof, and a mobile home as an affordable housing unit, with permit for the affordable housing unit to be conditioned on compliance with all environmental health regulations in effect when the percolation tests were approved;

(c)   to order respondent to comply with its published “Mission Statement” and “10 Commitments & 25 Goals” with respect to petitioner Neves;

(d)   to expunge the Notice of Continuing Nuisance that respondent recorded on the Property (DOC # 2000-045172);

/ / /

(e)   to expunge the Notice of Violations(s) of Building Code that respondent recorded on the Property (DOC # 2002-046741); and

(f)   to cancel and order withdrawn the Notice to Abate Building and Zoning Violations, served by respondent on, August 28, 2002Plaintiffs recover their damages according to proof, with interest thereon;;

2.                  Plaintiffsetitioners recover their costs incurred in this matter;

3.         Plaintiffs recover their  in this action, including aattorney fees pursuant to 42 U.S.C. § 1988; and pursuant to Government Code section 800;

3.                  Petitioners recover their damages according to proof; and

4.   Such other and further relief relief be granted that the Court considers proper.

 

Dated:  September __JulyFebruary 22 ___, 2003                                              HANNIG LAW FIRM LLP

 

 

 

                                                                        By:                                                      

Ted J. Hannig

Attorneys for Plaintiffs Half Moon Bay
Coastside Foundation, Bernie Neves,

Oscar Braun and Andrea Braun

 

 

 

REQUEST FOR JURY TRIAL

Plaintiffs hereby request a jury trial pursuant to F.R.C.P. 38(b).  

 

 

Dated:  September __, 200July 22, 2003                               HANNIG LAW FIRM LLP

 

 

 

                                                                        By:                                                      

                                                                              Ted J. Hannig

                                                                              Attorneys for Plaintiffs

            Oscar Braun and Andrea BraunVERIFICATION

I, the undersigned, say:

I am one of the petitioners in this proceeding. The facts alleged in the above petition for administrative mandamus are true of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration is executed on February ___, 2003.

 

                          

     Oscar Braun

 

 

REQUEST FOR STAY PENDING JUDGMENT

 

1.Pursuant to Code of Civil Procedure section 1094.5, petitioners request a stay of all actions by respondents to abate any structure present on the Property pending the entry of the judgment of the Court in this proceeding. These structures have been on the Property for periods of up to ten years.  Petitioners sought legalization of these structures four years ago, but respondents took no action to abate any of the structures until five weeks ago, proving there is no urgency.

1.The stay is not against the public interest; in fact, it supports the public interest. Among other items, respondents seek to abate two 5,000-gallon water tanks used for fire suppression for the mutual benefit of petitioners, their neighbors and the surrounding community. These tanks replace one 8,000-gallon tank that had failed and are necessary to maintain fire suppression capability in this populated area.  Further, Save Our Bay provides a number of critical fire protection and watershed protection services from the Property. Interruption of these services could pose a grave threat to the health and welfare of the County and its residents. Save Our Bay, from this location, is often among the first to report remote watershed area fires. There is presently a grave possibility of firestorm in the Crystal Springs Reservoir area watershed, which could cause a catastrophic and extended loss of all water supplies to the Peninsula due to contamination with ash and silt.

1.Furthermore, respondents also seek to abate the 10-year residence of petitioner Neves, who, as a disabled person, has special need of his personal residence, which is familiar and adapted to his needs and which he is able to afford despite his low-income status.

1.Moreover, respondent’s officers have repeatedly stated in public hearings before the Board of Supervisors that all of the structures are entirely appropriate in style, size, location and nature for the Property and under this zoning. As stated by County Counsel at the last hearing before the Board of Supervisors, this dispute is almost exclusively a financial dispute. Petitioners challenge respondent’s fees as unconstitutional. Under these circumstances, particularly given that the building issues have been pending for nearly four years, a stay of all abatement actions by respondent, and any other action respondent might take to enforce its Decision, is appropriate and proper.

 

Dated:  February ___, 2003       HANNIG LAW FIRM LLP

 

 

 

              By:          

Ted J. Hannig

Attorneys for Plaintiffs Half Moon Bay Coastside Foundation, Bernie Neves,

Oscar Braun and Andrea Braun

 

 

 

PETITION FOR MANDAMUS

 

1.Petitioners incorporate by reference paragraphs 1 through 12 and 14 through 77 of the Petition for Administrative Mandamus.

1.Respondent County’s ordinances do not specify if appellants took their appeal from the Planning Commission to the Board of Supervisors as of right, nor do respondent’s ordinances specify what rights the parties have to introduce evidence at hearings held by the Board of Supervisors. (San Mateo County Zoning Regulations section 6328.16.) Accordingly, petitioners allege in this alternative petitioner for mandamus that appellants’ appeals were either not of right or that the Board of Supervisors was not required to admit evidence so that this petition may not be heard pursuant to the provisions of Code of Civil Procedure section 1094.5, and, rather, may be heard pursuant to the provisions of Code of Civil Procedure section 1085.

Therefore, petitioners pray that:

1.  A peremptory writ of mandate issue, pursuant to Code of Civil Procedure section 1085, directed to respondent County and compelling respondent

(a)  to set aside its decision dated July 23, 2002;

(b)  to grant petitioners’ all necessary permits to allow legalization of a their horse stable, tractor shed, agricultural barn, storage shed adjacent to the stable, replacement of one 8,000-gallon water tank with two 5,000-gallon water tanks, enclose a 720-square-foot patio with a roof, and a mobile home as an affordable housing unit, with permit for the affordable housing unit to be conditioned on compliance with all environmental health regulations in effect when the percolation tests were approved;

(c)  to order respondent to comply with its published “Mission Statement” and “10 Commitments & 25 Goals” with respect to petitioner Neves;

(d)  to expunge the Notice of Continuing Nuisance that respondent recorded on the Property (DOC # 2000-045172);

(e)  to expunge the Notice of Violations(s) of Building Code that respondent recorded on the Property (DOC # 2002-046741); and

(f)  to cancel and order withdrawn the Notice to Abate Building and Zoning Violations, served by respondent on, August 28, 2002;

2.  Petitioners recover their costs in this action, including attorney fees pursuant to Government Code section 800;

3.  Petitioners recover their damages according to proof; and

4.  Such other relief be granted that the Court considers proper.

 

 

 

Dated:  February ___, 2003       HANNIG LAW FIRM LLP

 

 

 

              By:          

Ted J. Hannig

Attorneys for Plaintiffs Half Moon Bay Coastside Foundation, Bernie Neves,

Oscar Braun and Andrea Braun

 

VERIFICATION

I, the undersigned, say:

I am one of the petitioners in this proceeding. The facts alleged in the above petition for mandamus are true of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration is executed on February ___, 2003.

 

                           

     Oscar Braun

 

 

COMPLAINT FOR DECLARATORY RELIEF

 

1.Plaintiffs incorporate by reference Paragraphs 1 through 77 of the Petition for Administrative Mandamus and paragraph 83 of the Petition for Mandamus.

1.Controversies have arisen and now exist between the parties as to their respective rights and duties. 

Controversy One:  Plaintiffs contend that defendants have violated plaintiffs’ constitutional and statutory rights and are acting in excess and in abuse of their discretion and authority and are retaliating against petitioners by charging unlawful fees and placing other improper and wrongful conditions on the issuance of planning, development, stable, affordable housing, envi­ronmental health, and building permits for the Property. Plaintiffs further contend that defendants have failed to implement their Mission Policy toward plaintiff Neves by accommodating his disabled and low-income status. Plaintiffs are informed and believe that defendants contend to the contrary and assert they are violating neither constitutional nor statutory law and deny that they have acted in excess and in abuse of their discretion and authority or in retaliatory for petitioners exercising their First Amendment rights. Plaintiffs are also informed and believe that defendants deny any duty to accommodate plaintiff Neves as alleged herein.

1.Controversy Two:  Plaintiffs contend that the County required them to pay filing fees and to make an application for a Coastal Development Permit for the identified improvements to the Property (see paragraph 7, supra). The County demanded a Coastal Development Permit for the Property pursuant to Section 1.1 of the existing Local Coastal Program, which provides that upon certification of the Local Coastal Program by the California Coastal Commission, a Coastal Development Permit is required for improvements to real property located in the Rural Areas, as defined by the Local Coast Program. The Local Coastal Program was originally certified by the California Coastal Commission in 1980, and many amendments to the Local Coastal Program have been certified in the years since. Plaintiffs contend that the validity and application of the Local Coastal Program and its Coastal Development Permit requirement to the Property is dependent upon certification by the California Coastal Commission and that the Local Coastal Program and its Coastal Development Permit requirement have no validity or enforceability without valid certification by the California Coastal Commission.

1.Plaintiffs further contend that the certifications of the present Local Coastal Program by the California Coastal Commission, both initially and as to all later amendments, are invalid because the California Coastal Commission is an unconstitutional legislative body that violates the separation of powers clause of the California Constitution (Cal. Const., art. III, § 3). Accordingly, all such certifications are invalid and ineffective as a matter of law, and the County’s present Local Coastal Program has never been lawfully enacted. No part of the Local Coastal Program governs development of the Property. 

1.Plaintiffs contend that the scheme for appointment of the voting members of the Commission gives the legislative branch control over the Commission, thus impermissibly interfering with the Commission’s executive branch responsibility to execute the laws. Eight of twelve Commission members are appointed by the Speaker of the Assembly and the Senate Committee on Rules. (Pub. Resources Code, §§ 30301.2, 30301.5.) This appointment scheme gives the legislative branch control over a majority of the voting members of the Commission. In addition, the Speaker of the Assembly and the Senate Committee on Rules can remove the voting members that they appoint at will, which effectively renders the Commission a “legislative agency” because the Commission is not subject to the control of the executive branch. Both the appointment scheme and the removal power held by the legislative branch accrete power to the legislative branch of government that the California Constitution reserves to the executive branch and undermines the authority and independence of the executive branch. The Commission members’ presumed desire to avoid removal by pleasing their legislative appointing authorities creates subservience to the legislative branch of government and violates the separation of powers as set forth in the California Constitution.

1.Plaintiffs allege on information and belief that defendant County denies plaintiffs’ contentions and instead contends that the County acted lawfully to require that plaintiffs apply for a Coastal Development Permit and to pay fees for such application in order to make the improvements to the property.

1.Controversy Three:  Plaintiffs contend that because the existing Local Coastal Program is invalid and has no legal force with respect to the Property as set forth earlier in this cause of action, the entire scheme the County uses to review development on the Property is invalid. Instead, to the extent that this Court may require any further proceedings before the County of San Mateo after the conclusion of all judicial proceedings, plaintiffs contend that until a constitutionally valid administrative body has certified after hearing a new Local Coastal Program for the County of San Mateo, the County must review plaintiffs’ application for development by the same standards the County would use if the Property was not located within a Rural Area as designated in the existing Local Coastal Program and was not subject to the existing Local Coastal Program in any respect. Plaintiffs allege on information and belief that the defendant County denies plaintiffs’ contentions and contends to the contrary.

1.As to all contentions set forth above, plaintiffs accordingly contend that the following notices are unlawful and seek to have them canceled, removed, and expunged:

Notice of Continuing Nuisance, recorded by Terry Burnes, Planning Administrator, County of San Mateo, April 5, 2000, Doc. # 2000-045172;

Notice of Violation(s) of Building Code, recorded by William J. Cameron, Building Inspection Manager, County of San Mateo, March 12, 2002, Doc. #2002-046741; and

Notice to Abate Building and Zoning Violations, served by William Cameron, Building Inspection Manager, County of San Mateo, August 28, 2002.

Plaintiffs are informed and believe that defendants dispute this and contend to the contrary.

1.Plaintiffs have no speedy or adequate remedy in law.

1.Accordingly, plaintiffs seek the declaration of this court that defendant County’s decision of July 23, 2002, alleged herein, and the three notices alleged above are unconstitu­tional, unlawful, void and of no legal force or effect whatsoever, and that plaintiffs are entitled to receive from defendants all necessary permits to allow legalization of a their horse stable, tractor shed, agricultural barn, storage shed adjacent to the stable, replacement of one 8,000-gallon water tank with two 5,000-gallon water tanks, enclose a 720-square-foot patio with a roof, and a mobile home as an affordable housing unit, with permit for the affordable housing unit to be conditioned on compliance with all environmental health regulations in effect when the percolation tests were approved.

1.In addition, plaintiffs seek the declaration of this court that the Local Coastal Program is invalid and does not regulate in any way the use or development of the Property, that no law requires plaintiffs to apply for or obtain a Coastal Development Permit to develop or improve the Property, that all fees plaintiffs have paid as part of their application for a Coastal Development Permit shall be refunded because imposed by the County as part of an unlawful application process, and that any future proceedings undertaken by the County with respect to the Property shall not require compliance with any part of the Local Coastal Program.

Therefore, plaintiffs pray that:

1.  The Court declare that defendant County’s decision of July 23, 2002, alleged herein, and the three notices recorded or served by defendant, also alleged above, are unconstitu­tional, unlawful, void and of no legal force or effect whatsoever, and that plaintiffs are entitled to receive from defendants all necessary permits to allow legalization of their horse stable, tractor shed, agricultural barn, storage shed adjacent to the stable, replacement of one 8,000-gallon water tank with two 5,000-gallon water tanks, enclose a 720-square-foot patio with a roof, and a mobile home as an affordable housing unit, with permit for the affordable housing unit to be conditioned on compliance with all environmental health regulations in effect when the percolation tests were approved;

2.  The Court further declare that the Local Coastal Program is invalid and does not regulate in any way the use or development of the Property, that no law requires plaintiffs to apply for or obtain a Coastal Development Permit to develop or improve the Property, that all fees plaintiffs have paid as part of their application for a Coastal Development Permit shall be refunded because imposed by the County as part of an unlawful application process, and that any future proceedings undertaken by the County with respect to the Property shall not require compliance with any part of the Local Coastal Program.

3.  For attorney fees and litigation expenses reasonably incurred herein;

4.  For costs of suit herein; and

5.  For such other relief as the Court considers just and proper.

 

Dated:  February___, 2003       HANNIG LAW FIRM LLP

 

 

              By:          

Ted J. Hannig

Attorneys for Plaintiffs Half Moon Bay
Coastside Foundation, Bernie Neves,

Oscar Braun and Andrea Braun