Legal Question in Real Estate Law in California
I own a million dollar, plus lot on Catalina Island, Avalon, California that I can't sell, or finish buiding on, because So. California Edison will not grant a Fresh Water Allocation Certificate for the property, which needs to be included with the Application to Avalon Planning Dept. before they will review building plans. CPUC backs SCE's decision to with hold water from my property. Phase 1 Draught is in effect, and they won't allow 340 gals of fresh water per day so I can either sell the property, or finish what was started in 2002, but only foundation and retaining walls were finshed before funding ran out, and permits expired in 2006. Phase 1 went into effect Dec. 2007, and the Planning Dept will not review, or reinstate the Plans that had been approved in 2002, because of SCE. Meanwhile, I am paying mortgage payments and taxes on the property, which is useless without the water permit. While others are watering their grass, I am on hold from continuing building. Is it possible to litigate a forced Water Allocation Certificate from SCE, and force Avalon Planning Dept. to accept application to reinstate the prior approved plans? Further, is it possible to win any personal monitary damage losses from the Agencies, CPUC, SCE, and Avalon Planning Dept. who have made it impossible for me to sell the property because of this refusal to grant the Water allocation Certificate for the single family property? Thanks.
2 Answers from Attorneys
It is possible to litigate to force an allocation if and only if it was improperly or wrongfully denied. Although theoretically possible, there is virtually no chance you can get money damages. Administrative decisions like that and the officials who make them are immune from suits for money damages absent someone being bribed to deny the allocation or some similar level of corruption that rises to the level of basically a civil rights violation.
You are not alone; there are myriad examples of property owners whose properties have lost development potential and substantial value through government actions. Sometimes it is zoning changes, sometimes a new master plan, and sometimes a new environmental concern. I have a client now whose 7-acre rural residential parcel in Sonoma County is unbuildable under the Endangered Species Act due to the recently-discovered presence of the California Tiger Salamander. His property is worth 1/3 of what he paid a few years ago.
I don't know and wouldn't hazard a guess as to whether litigation would be successful in your case. Possibly just holding out to see if the drought is broken this winter might be your best strategy - there are predictions of a strong "El Nino" condition bringing you a lot of rain.
If you and your attorney were to evaluate possible litigation, among the factors to research would be the following:
1. Whether SCE had any discretion in the matter. If it is simply carrying out policies mandated by the PUC, it may not be a suitable defendant.
2. The requirements of the Government Claims Act (formerly Tort Claims Act) if any agency, subdivision, branch etc. of the state government is to be sued. Government immunity is not absolute and there is a limited range of abuses for which money damages can be obtained.
3. Whether this is or is not an instance of "inverse condemnation" entitling you to damages.
4. Whether any agency has committed an abuse of discretion or is enforcing a policy that violates the state or U.S. Constitition.
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