In the Common Pleas Court of Crawford County, Ohio

RONALD A. ZUMBRUN, SBN 32684

MARK A. TEH, SBN 216756

KEVIN D. KOONS, SBN 225867

THE ZUMBRUN LAW FIRM

3800 Watt Avenue, Suite 101

Sacramento, California 95821

Telephone: (916) 486-5900

Facsimile: (916) 486-5959

Attorneys for Petitioner and Plaintiff

Superior court for the state of california

county of Contra Costa

Petitioner,GOLDEN GATE WATER SKI CLUB, petitions this Court for a writ of mandate under Code of Civil Procedure section 1094.5, directed to respondents, COUNTY OF CONTRA COSTA and CONTRA COSTA COUNTY BOARD OF SUPERVISORS, and for such other relief as requested herein, and by this verified petition and complaint alleges as follows:

Introduction

1. Petitionerand Plaintiff Golden Gate Water Ski Club (hereinafter “Petitioner” or “Club”) owns an island on the Sacramento-San Joaquin Delta on which it has built approximately 28 cabins and 28 docks for use by Club members and their families for recreational activities. Most of these structures have existed on the island since the early 1970s without permits from respondentContraCostaCounty (County). Although the County admits knowing about the structures since the mid-1970s, respondent CountyBoard of Supervisors (Board) declared the structures to be a public nuisance and issued an abatement order on September 1, 2005, directing the Club to demolish all structures on the island, both cabins and docks, by November 30, 2005.
2. The petition for writ of mandate seeks to set aside the Board’s abatement order on the grounds that (1) the Board acted without or in excess of its jurisdiction, and (2) the Board abused its discretion to the prejudice of Petitioner. The abuses of discretion are based on the grounds that (a) the Board did not proceed in the manner required by law, (b) the Board’s decision is not supported by the adopted findings, and (c) the Board’s findings are not supported by the evidence submitted at the Board’s August 16, 2005, hearing.
3. The Complaint for Inverse Condemnation, Fraud, Civil Rights Violations, Injunctive Relief and Declaratory Reliefseeks recovery for damages in that, inter alia, the Board and County have taken the Club’s property for public use without first paying just compensation in violation of the California and United States Constitutions and of Petitioner’s civil rights.

Parties

1. Petitioner Golden Gate Water Ski Club is a nonprofit corporation which has been in existence since 1948and was organized for the purpose of providing a location for its members to socialize and enjoy water sports. Petitioner ownsthat certain parcel of real property within the County known as Golden Isle (APN 001-111-001) and all the structures affixed thereto. Petitioner brings this action on behalf of itself and its members.
2. RespondentContraCostaCounty Board of Supervisors is the highest governing body within ContraCostaCountyand is authorized by the CountyCode to make final adjudications on land use decisions and abatements within the unincorporated areas of the County.
3. The County of Contra Costa is a body politic and a political subdivision of the State of California.

Venue

1. Venue in this Court is proper in that the subject property is located in ContraCostaCounty (Code Civ. Proc., § 392), the respondent Board is located in ContraCostaCounty (Code Civ. Proc., § 393), this is a proceeding against the County and its Board (Code Civ. Proc., §394), and the Board resides in ContraCostaCounty (Code Civ. Proc., § 395).

General Allegations

1. In 1966, Petitioner purchased an approximately five-acre parcel of real property within the County of Contra Costaon the Sacramento-San Joaquin Delta. Said parcel bears the Assessor’s Parcel Number 001-111-001 and is more commonly known and referred to hereinafter as Golden Isle.
2. In pursuit of the Club’s recreational activities, shortly after it purchased Golden Isle, the Club began to put camper trailers and to build cabins on the island.
3. Since the Club purchased Golden Isle, the County has continuously assessed the improvements, and the Club has consistently paid property taxes for both the land as well as all the improvements on Golden Isle. The County has increased its property tax assessment each time that a structure is added to Golden Isle and the Club has paid the increased assessments.
4. In August 1970, County Planning Department staff contacted the Club regarding the zoning of the island and informed the Club that the mobilehomes and cabins on the island were inconsistent with the zoning in existence at the time. The County Planning Department staff suggested that the Club apply for a change in Golden Isle’s zoning designation along with a land use permit.
5. Pursuant to the County’s suggestion, on or about June 7, 1971, the Club submitted concurrent applications for rezoning and a land use permit. The County accepted the Club’s application but failed either to approve or to disapprove the Club’s applications. Rather, the County indefinitely tabled the matter.
6. On or about June 17, 1974, Norman Halverson, a member of the County Planning Department staff, told the Club’s attorney that the County would not “hassle” the Club over the various zoning and permitting issues.
7. Based on that representation, the Club continued using its recreational use of Golden Isle and added structures thereto.
8. On or about February 28, 1979, the County Planning Department staff again contacted the Club, asking it to withdraw its concurrent applications for rezoning and land use permit that it submitted on June 7, 1971. In addition to asking the Club to withdraw its applications, the County specifically commended the Club for its work in keeping Golden Isle “well-maintained” and expressed the County’s determination that “weekend and seasonal recreation use of this land is desirable and should be permitted.”
9. The County’s internal documents indicate that the County made this request because it was worried that the Club’s applications would become “deemed approved” by operation of the Permit Streamlining Act.
10. However, the County misled the Club by failing to inform itthat its permit applications would be approved by operation of law if it did not withdraw the application.
11. To further induce the Club to withdraw its permit applications, the County’s letter offered to form a joint committee to address the County’s concerns. The County invited the Club’s participation on this committee, stating, “We would appreciate the participation of a member of the Golden Gate Water Ski Club on this committee and will contact you before the formation of the committee.”
12. Based on information and belief, the Club alleges that the County had no intention of forming such a committee and therefore misrepresented its intentions for the purpose of inducing the Club to withdraw its permit applications.
13. Relying on the County’s offer to form a joint committee, and seeking to work with, not against, the County, the Club acquiesced to the Planning Department letter by withdrawing its applications on March 21, 1979, and accepted the County’s offer to form a committee to address the County’s concerns.
14. The County never contacted the Club again about the promised committee. Despite the Club’s enthusiastic acceptance of the County’s offer and compliance with their requests, no committee was ever formed.
15. Having complied with the County’s wishes, the Club continued to use the island, as it had before, for recreational activities.
16. Again, the County continued to assess, and the Club continued to pay property taxes on both the real property and all improvements.
17. The Club did not hear from the County regarding these issues until about March 12, 2003. On or about that date, a joint-agency site inspection of the island was conducted. The Club requested a copy of the inspection report from Ruben Hernandez, the report’s author, but the Club never received a reply.
18. On or about July 23, 2003, the County Community Development Department sent a memorandum to Carlos Baltodano, the County Building Inspection Director, reporting the results of the investigation concerning existing development on Golden Isle. The memorandum stated that the Club’s development did not comply with the existing zoning regulations.
19. On or about September 16, 2003, Logan & Powell, then serving as legal counsel for the Club, responded to the Community Development Department’s memorandum. Logan & Powell’s report documented for the County the decades-old interaction between the Club and the County and rebutted the County’s concerns that the Club’s activities on the island violated the CountyCode.
20. On or about June 7, 2004, the County Community Development Department issued a response to this report attacking the Club’s points and arguments.
21. On or about June 28, 2004, the County’s East County Building Inspection Office issued a letter to the Club informing its members that “enough evidence exists to proceed with abating the violations” on the island and alleging that the property constituted a public nuisance.
22. On or about July 14, 2004, the Club met with representatives from the CountyAssessor’s Office, the East County Fire Protection District, Public Works Department, Environmental Health, CountyCounsel and representatives from Supervisor Greenberg’s office to discuss means to satisfy the County’s concerns. Prior to the meeting, County staff had already reviewed and rejected a proposal from the Club that would allow the Club’s existing useto be found consistent with the County’s General Plan.
23. On or about July 28, 2004, the County sent a letter to the Club proposing that the Club and County continue to discuss solutions. The letter also outlined the County’s decision to postpone red-tagging the property with a Notice and Order to Abate and requestedthe Club to submit a proposal for bringing the island into compliance with the CountyCode.
24. In a letter dated October12, 2004, from its legal counsel, Logan & Powell, the Club proposed several options to the County with the view of avoiding the complete destruction of the island’s use and structures. The removal of all structures on the island and cessation of all recreational activities on the property would essentially destroy the Club’s use and access of the island, rendering it valueless to the Club and its membership.
25. Subsequent to the July 28, 2004,letter, the County reneged on its offer to work with the Club and red-tagged every structure on the island.
26. On or about February 23, 2005, the County Abatement Officer declared the structures on Golden Isle to be a public nuisance and issued and served on the Club a Notice and Order of Abatement.
27. On or about March 23, 2005, the Club appealed the County Abatement Officer’s decision to the Board.
28. On or about August 16, 2005, the Board held a hearing on the Club’s appeal and affirmed the County Abatement Officer’s abatement order.
29. On or about September 1, 2005, the Board’s abatement order was served on the Club, directing the Club to demolish all structures on Golden Isle within 90 days of the notice (i.e., by November 30, 2005).
30. Today there are approximately 28 cabins and camper trailers and 28 docks on Golden Isle.
31. The island is located in an A-2 general agricultural zoning district. Section 84-38.404 of the County’s zoning ordinances states:

The following uses may be allowed in an A-2 district on the issuance of a land use permit:

…

(10) Community buildings, clubs, activities of a quasi-public, social, fraternal, or recreational character, such as golf, tennis or swimming clubs, or veterans’ or fraternal organizations. These uses are prohibited if organized for monetary profit.

The Club’s use of Golden Isle could thus be accommodated with a land use permit in the A-2 zone.

First Cause of Acton

(Writ of Administrative Mandamus under CCP § 1094.5)

1. Petitionerhereby incorporates by reference the allegations of paragraphs 1 through 38and paragraphs 49 through 97as though fully set forth herein.
2. Petitioner ownsthat certain parcel of real property within ContraCostaCountyknown as Golden Isle (APN 001-111-001) and all the structures affixed thereto, which are subject to the Board’s abatement order. As owners of real property and fixtures directly affected by the Board’s abatement order, Petitioneris beneficially interested and aggrieved by the Board’s decision and order.
3. At all times mentioned in this petition, respondent Board has been and is now the entity authorized by Contra Costa County Code section 14-6.414 to make final adjudications on land use decisions and abatements within the unincorporated areas of the County.
4. On or about February 23, 2005, under Contra Costa County Code section 14-6.410, the County Abatement Officer issued an order to abate all of the structures on Golden Isle and notice of the order was immediately served on Petitioner.
5. On or about March 25, 2005, under Contra Costa County Code section 14-6.414, Petitionertimely appealed the County Abatement Officer’s decision to respondent Board.
6. On or about August 16, 2005, respondent Board heard the Club’s appeal, adopted findings, declared the structures on Golden Isle to be a public nuisance, and affirmed the County Abatement Officer’s order. On September 1, 2005, respondent mailed a copy of its decision to Petitioner. A true and correct copy of this decision is attached hereto as Exhibit 1 and incorporated in this petition as though fully set forth herein.
7. Respondent’s decision, Exhibit 1, is invalid under Code of Civil Procedure section 1094.5, for the following reasons:
8. Respondent proceeded in excess of its jurisdiction in that:
9. The County’s definition of “public nuisance,” as prescribed by Contra Costa County Code section 14-6.204,is preempted by state law; and
10. Alternatively, state law prohibits the Board from abating the Club’s structures absent a finding of endangerment to life, limb, health, property, safety, or welfare of the public.
11. Respondent committed a prejudicial abuse of discretion in that:
12. Respondent failed to proceed in the manner required by law because:
13. The County’s definition of “public nuisance,”as prescribed by Contra Costa County Code section 14-6.204,is preempted by state law;
14. Alternatively, the County may not redefine a “public nuisance” for the purpose of depriving the Club of any defense to the abatement proceeding;
15. The Board ignored the Club’s defenses of laches, estoppel, and fraud in the abatement proceeding; and
16. The Board is prohibited from abating any structure except upon a finding that the structure threatens the life, limb, health, property, safety, or welfare of the public or the occupant; and
17. Respondent’s decision is not supported by the findings because:
18. The County made no finding that the Club’s structures and use of Golden Isle (1) are injurious to health, (2) are indecent or offensive to the senses, (3) are an obstruction to the free use of property, or (4) unlawfully obstruct the free passage or use, in the customary manner, of any navigable water or public area; and
19. The County made no finding that the Club’s structures endanger the life, limb, health, property, safety, or welfare of the public or of the occupants thereof; and
20. Finding No. 4 of respondent’s decision, Exhibit 1, that the conditions on Golden Isle constitute a public nuisance, is not supported by the weight of the evidence, because there was no evidence in the administrative record that the conditions on Golden Isle were injurious to public health or were endangering life, limb, health, property, or safety; on the contrary, Petitioner submitted affirmative evidence that the conditions on Golden Isle were desirable, did not pollute the environment, and were beneficial to the community.
21. Petitioner has exhausted the available administrative remedies required to be pursued by it in that Petitioner appealed the County Abatement Officer’s decision to respondent Board pursuant to Contra Costa County Code section 14-6.414.
22. Petitioner does not have a plain, speedy, and adequate remedy in the ordinary course of law.
23. If respondent’s decision and order is allowed to be executed, Petitioner will be irreparably injured in that Petitionerwill be required to demolish all structures, including both docks and residences, on Golden Isle by November 30, 2005; if Petitionerdoes not complete the demolition by said date, the Board’s order directs the County Abatement Officer to execute the demolition to the irreparable injury of Petitioner. Furthermore, imposition of a stay is not against the public interest, because:
24. The Club’s structures and activities on the island have existed for nearly
    40 years;
25. During those 40 years, there has never been evidence produced showing that the Club’s structures and activities pollute the Delta waters or otherwise harm or endanger the public health and welfare;
26. The Club has hired an environmental consultant to perform annual onsite water testing for the last 3 years, which testing has consistently shown that the Club’s facilities are well-maintained and do not pollute the island or the Delta environment;
27. The County has admittedly known of the Club’s structures and activities on the islandsince the 1970s;
28. The County has admitted that the Club’s facilities are “well-maintained”;
29. The County has admitted that the Club’s uses and activities on the island “are desirable and should be permitted”;
30. At the administrative hearing, the Club submitted current, affirmative evidence that the Club’s uses, structures, and sanitary systems on the island do not pollute the Delta’s waters or the environment;
31. The Countyhas notproducedany counter-evidence that the Club’s uses, structures, and sanitary systems were injurious to the public health;
32. The docks and all pilings in the water have permits issued from the State Lands Commission and the Army Corps of Engineers; and
33. The land under the docks is leased by and with agreement from the State Lands Commission.

WHEREFORE, Petitioner prays for judgment and relief against the respondentsCounty and Board as hereinafter set forth.