Beach District Contracts Away Police Power
- William Fulton
- Jun 26, 2018
- 2 min read
A Malibu-based special district – the Broad Beach Geologic Hazard Abatement District – illegally contracted away its police power when it entered into settlement agreement promising that sand truck would not be driven through the City of Moorpark, the Second District Court of Appeal has ruled. The case is a good example of the ripple effect of environmental impact issues. The Broad Beach district is required by state law to replenish the sand along the 46-acre beach – initially 300,000 cubic yards of sand, with possible further replenishments over a 20-year period. But the sand will be mined in Ventura County, in between Fillmore and Moorpark. Moorpark claimed hauling the sand through its city would create a negative environmental impact, so Broad Beach and Moorpark entered into a settlement agreement specifying prohibited routes. Broad Beach and Moorpark were then sued by both the County of Ventura and the City of Fillmore, who claimed their roads would then be used for the sand trucks. Ventura County and Moorpark sued on a number of grounds. They challenged the idea that the sand-hauling project was exempt from the California Environmental Quality Act and also argued that Moorpark was engaged in illegal extra-territorial regulation. The Second District struck both of these arguments down. The court found that the sand-hauling project is an environmental improvement under CEQA, meaning it is subject to a statutory exemption. The court also concluded that Moorpark had not engaged in extra-territorial regulation, but had merely entered into a contract. The court did, however, find that the Broad Beach district had contracted away its police power with the settlement agreement. Citing a 60-year-old case , the court concluded that determination of hauling routes is a police power held by the Broad Beach district that cannot be contracted away. By entering into the settlement agreement, the court ruled, the Broad Beach district had eliminated the possibility of changing the haul routes based on changed future conditions – a basic tenet of the police power. Broad Beach made a variety of arguments claiming that the district actually did retain the power to change the haul routes in the future, especially if emergency conditions existed. But the court rejected all the arguments. “For example,” the court wrote, “BBGHAD cannot invoke the exception if traffic congestion increases along the designated haul routes or if there is a dramatic slowdown or partial road closure. BBGHAD cannot invoke the exception if increased costs or logistical issues at the quarries or project site require the use of a different route. And BBGHAD cannot invoke the exception should its board of directors or outside authorities decide that the additional pollution generated from the mandated use of a more circuitous route is unacceptable. In short, the settlement agreement, as written, does not allow for modifications to respond to changes in circumstances that may arise during the project’s lifespan.” The Case: County of Ventura v. City of Moorpark, B282466 (June 12, 2018) The Lawyers: For Ventura County: Jeffrey Barnes, Assistant County Counsel, jeffrey.barnes@ventura.org For City of Fillmore: June Ailin, Aleshire & Wynder, jailin@awattorneys.com For City of Moorpark: T. Peter Pierce, Richards, Watson & Gershon, ppierce@rwglaw.com For Broad Beach Geologic Hazard Abatement District, John M. Bowman, Elkins Kalt Weintraub Reuben Gartside, JBowman@elkinskalt.com