Metropolitan News-Enterprise

 

Monday, September 22, 2008

 

Page 3

 

C.A. Clarifies Rule on Administrative Writ Proceedings

 

By a MetNews Staff Writer

 

California law provides parties two alternatives to challenge an adverse decision in code enforcement or other administrative proceedings, the Fourth District Court of Appeal ruled Friday.

Div. Two held that Government Code Sec. 53069.4 allows parties to challenge an administrative decision either by de novo appeal to superior court before a judge or a subordinate judicial officer, or to petition for a writ of mandate under Code of Civil Procedure Secs. 1094.5 and 1094.6.

However, Justice Barton C. Gaut explained that the courtís ruling was little help to John F. Martinís writ petition challenging a $500 fine from the Riverside County Department of Code Enforcement for grading without permits, because substantial evidence showed Martin was required by local ordinance to obtain permits from the county before grading a washed out spillway on his property in 2006, but did not do so.

Martin initially challenged the fine in an administrative hearing before a code enforcement officer, contending that he was exempt from the permitting scheme because the repairs were of an emergency nature and he had previous approvals from the Federal Emergency Management Agency and the Department of Fish and Game to grade it.

The officer upheld the fine, so Martin sought relief from the Riverside Superior Court in a petition for a writ of mandate.

However, Superior Court Judge Edward D. Webster concluded that Martinís challenge failed under any standard of review, and said that Martin should have obtained a permit in addition to any other approvals. Webster also opined that the correct procedure was to seek review de novo by the superior court under Sec. 53069.4.

The Court of Appeal initially agreed and transferred Martinís appeal from Websterís decision to the Appellate Division of the Riverside Superior Court after concluding that it lacked jurisdiction to hear the appeal of a limited civil case. The Court of Appeal later directed the case be transferred back when the Appellate Division concluded that it too lacked jurisdiction on the basis that no further review was permitted beyond the de novo appeal in superior court.

Noting that the text of Government Code Sec. 53069.4 and its legislative history supported the conclusion that review was available either by writ petition or a limited de novo appeal to the superior court, Gaut wrote that Martin did have the right under California law to challenge the decision upholding the fine under the former route, but concluded that Webster had properly rejected the challenge.

ďThere is little dispute about the facts,Ē he wrote. ďMartinís existing spillway was washed out by flooding. He sought FEMA assistance to repair it. He did not obtain a grading permit from the County.Ē

Justices Thomas E. Hollenhorst and Art W. McKinster joined Gaut in his opinion.

The case is Martin v. Riverside County Department of Code Enforcement, 08 S.O.S. 5410.

 

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