Throughout history, a blindfolded figure holding an unweighted scale has symbolized justice and our shared understanding that fairness requires a balancing of equities. The word “equitable” means “to deal fairly and equally with everyone concerned.”
Since the Board of Supervisors passed the Urgency Ordinance on Aug. 27, at least 15 claimants have filed requests for exemptions on the basis that previous investments in their projects endow them with “vested rights” to complete their project without offsets. (The ordinance requires landowners who expand their plantings after Aug. 27 to “offset” any increased water use with savings on a 1:1 basis.)
A “vested right” exemption is not a legal “right.“ It is an equitable remedy provided to those legally bound by a duly enacted law who can show evidence that it is “unfair” to apply the law to them because they “detrimentally relied in good faith” on the prior state of the law. Good faith is generally shown by proving “due diligence,” which is a flexible standard that asks what a “reasonable person” would have known under the circumstances.
Planning staff has developed a “checklist” approach to reviewing these exemption requests. Staff’s checklist focuses exclusively on the investments made and project activities completed by the landowner, with no requirement that the claimant establish “good faith” or show “due diligence.”
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Staff’s approach reflects the board’s hope for a simple formula that allows a quick decision-making process and avoids legal challenges by corporate lawyers. Although well-intentioned, the insistence on a bright line formula subverts the process by trying to make what is intended to be an equitable “balancing” process into a legal bright line.
Planning’s checklist, while an appropriate threshold to fulfill the “detrimental reliance” part of the equation, utterly ignores the “good faith” part of the balance. Simple it may be, equitable it is not, because detrimental reliance alone is not enough.
The law requires “good faith detrimental reliance.” Proof of good faith is not an “optional” requirement. Both sides of the equation — detrimental reliance and good faith — must be weighed and balanced before any exemption is granted. Staff’s “checklist” properly places claimants’ activities on one side of the scale as proof of “detrimental reliance,” but ignores the good faith side of the balance. The process may seem “fair” to claimants, but it is not equitable, or legally defensible.
Completing the analysis (balancing the scale) by requiring proof of good faith will ensure fairness to all affected landowners. It may mean fewer bright lines and some tough decisions that may lead to legal challenges, but failing to “balance the scales” with the “good faith” component of the analysis may equally lead to legal challenges — and from a less defensible position.
Specific markers can be used to establish “due diligence.” For example: Was the project initiated or the property purchased after the Paso Robles groundwater basin was declared to be at Level III Severity in February 2011? Was the project planned in an area of known long-term drought conditions or in previously dry-farmed areas known to have scarce water? Is the claimant a large corporation with extensive resources or a small family farmer?
Large ag conglomerates may be assumed to have had knowledge that the county is experiencing a record drought, that the basin is already at Level Severity III, and that heavy additional draws on the aquifer could strain a taxed basin on which neighboring landowners depend.
A small local farmer unable to afford expensive pre-project analyses might show “good faith” and “due diligence” at a lower standard, commensurate with their resources.
Investment exposure cannot be the only determining factor. The bedrock principle in equity is: To ask for equity you must act equitably.
If a landowner knew or should have known of the drought conditions, if they knew or should have known of the Level III Severity determination, if they knew or should have known of possible impact on neighboring wells and on the basin, and continued to heedlessly purchase, plant and pump despite this knowledge, they should not be exempted from the ordinance on “equitable” grounds because investment expenditures, however substantial, do not eliminate the requirement of “good faith.” Requiring them to “offset” increased water use, like everyone else, feels fair and equitable.
The board will decide Tuesday where to draw the line on exemptions. Please write the Board of Supervisors and attend the meeting. Your voice only matters if it is heard.
Daniella Sapriel is the founder of The Coalition of Rural Residents and Landowners, which includes residents and landowners dependent on water from the Paso Robles groundwater basin. A mostly retired attorney, her legal career included three years with the Department of Justice in Washington, D.C., followed by many years in private practice in Los Angeles. She and her husband have a small bed and breakfast in North County.