good morning your honors and i thank you for hearing this appeal this morning i know you're familiar with the brief sagas very quickly provide an overview of this case my name is david baulch and i represent the petitioners in this matter the eads and their company they were trying to do a subdivision in san benito county which is let me ask you what is the try peano's water district it is it a is  agency is that a private company is that what exactly does it mean is equal agency subject to the brown act and it's a public water district and what's its relationship with the board of supervisors for the county there is no formal relationship your honor in this matter because we're going for a subdivision there needs to be water allotment to the project the water allotment would have come from trace peano's we were in we had a conditional intent to serve letter from trace peano's water district let me ask the the board of supervisors denied a permit for the subdivision projects going forward therefore even if we were to make a ruling your client still can't go forward unless there is approval from the board of supervisors is not correct i'm the project your honor that is correct that there are two separate issues here that we have been litigating and i appreciate the chance that clarification one issue is has to trace peano's water district treated our clients fairly and in a matter that accords with due process this goes back for a period of about twenty years and i want to put the subdivision on hold for a moment and i ask when you when your clients acquire the property  just not moved forward because the understanding was this would need to be resolved first when you say so file that a similar time before or after you know i was not the one who filed that it was within a week or two  what the panel or what the district has said is even though it's provided a intent to serve a conditional intent to serve notice as an exhibit or what they're going to do they said at the hearing they are not going to issue anything but you haven't asked them and they haven't tonight it so why is that issue right well your honor i mean under a futility doctrine they have said they're not going to that's all that we need to do your honor i thought williamson county said we just leave this to the state to go through the whole process before we interfere williamson again with the takings case your honor and undertakings analysis there was a double ripeness in williamson first of the you had to get a final determination from the local agency secondly you then had to avail yourself of the state state entities just compensation provisions in this case your honor we're not dealing with the taking post lingo why does that distinguish it don't they don't apply the second prong of williamson to substantive due process cases and there's an argument the first prong of williamson does not apply either in a takings case you know that the taking is not what is not what's illegal is the failure to pay just copy sation so it is a harm that comes down the road in a substantive due process case the harm is immediate we have a right to due process immediately and if you look at what's happened over the course of time from the time they entered into the moratorium until the present there's been a continual pattern of abuse against my clients so the argument would be that the first prong of williamson shouldn't apply either i've not  case law though that specifically addresses its skirts back and forth even if the first prong of williamson was to apply however your honors it would not matter because i believe it's met in this case you went through the entirety of the trace peano's water district process they issued and what process wasn't in the besides the fact that you applied originally you got a tentative approval you went through the planning commission planning commission also approved and then you went before the board of the moratorium was imposed without a formal vote without proper notice under the brown act under water code section three fifty and section three fifty one of the california water code it's a question that this court had asked  council to address under those code provisions you can an act of moratorium under certain circumstances however they have not they did not meet the requirements of code three fifty three fifty one attempts by different local different agencies to get the water district to move to two to move forward and the allegations are that they just took zero steps whatsoever over time due to a desire to not have build out in the to see this property get developed and so over time they intentionally suppressed the ability of the water district to provide services nonetheless they didn't provide at this point in time they were just you can't provide those services under applicable law because  facilities are inadequate for it isn't that what the board of supervisors found your honor that they are they have been intentionally kept inadequate it out of a desire to prevent and i need to take a quick step back we're in a motion to dismiss and so the allegations the factual allegations have to be accepted as true and the factual allegations in the complaint are quite detailed and i would point the court to what we can take you to some notice of the documents there tach to the pleading that a in kohut interest in trying to obtain water is not a sufficient property interest to invoke the substantive due process clause and your honor the under swanson which is one of the large california cases dealing with water issues fifty six cal apps third five twelve that's from one nine hundred seventy six the court does recognize that in talk about in swanston unless the moratorium that was issued to prevent the water service to prevent you from treating a future customer like a past customer was not imposed properly pursuant to section three fifty and with hundred ninety nine about the water moratorium though those statutes have long since run on those you are correct we were not harmed until recently your honor you know would not have been right as to our client because there would have been  no ability for us to challenge we did not have a project at that time your honor but we're talking about procedural due process on your claims true that's that's long gone i mean you're arguing about procedures that were adopted ten twenty years ago but we're also arguing your honor that for example in two thousand and eight there were temporary water supply connections given to the stone gate project that's paragraph twenty three of the complaint the other connections that were given to other projects and then in twenty sixteen in this project they changed their minds and we will not help you we will not serve you because of the moratorium so we are being treated differently than other people who have applied for residential projects in the past i do want to say to segregate out the subdivision process because the subdivision process that we are suing the county of  monterey that is a stand alone lawsuit for for the a subdivision plat maps subdivision a map in general we are talking in this lawsuit simply the right to get water and we've been told that you we will not give you the right to get water and i think that the basis of the complaint comes down to we will not give you the right to get water because we don't like your project we don't want development here and the people who voted on that planning commission decision true well you know they didn't vote in the moratorium but they've been on for a sufficient length of time where they have participated in keeping the district in a deficient state answer one further question that your honour's had asked us to address and that was nor can work nor pennington we been addressing it again i believe it more pennington yes it applies to governmental actors it applies to governmental actors who are petitioning aid other governmental agency i'm not saying that nor pennington would not apply however in this case we really are challenging is a whole course of action if nor pennington were to were to block this lawsuit any public agency engaged in a pattern of misconduct could go to another public agency raise it once and say oh hey by the way i've raised this issue therefore more pennington applies it's similar to a to a privilege to a document does not become privilege because it was sent to an attorney an underlying unprivileged document does not be trapped into privilege in this case conduct that would not be prepared to buy more pennington does not get bootstrap into protected simply because at one point in time it was raised good morning may it please the court my name is christine brain i represent the a pelleas respond and trace penis water district robert frazetta and edward schmidt regardless of how the facts of this case are framed the issue remains that this isn't right and the reason why is because ultimately the  damages if any were caused by the decision of the sample you know county board of supervisors and step back for a second now the words they applied for to get hooked up to the water and it how was it denied it was denied in a letter or what the process in san benito county requires that when a vellum an applicant applies to the county they need to present some evidence that they have in our case water and wastewater treatment services available for the project so when they submitted their application back in two thousand and thirteen they came to the district and asked for what's what we call a will serve letter and the district at that time gave them a conditional will serve letter that and numerated twelve different conditions that would have to be met so the language was clear and that letter that it was not a guarantee that was despite the fact that there was a moratorium that's correct and so that was one of the conditions is conditioned upon the fact that circumstances will have changed  they could have changed that condition because the moratorium wasn't it wasn't in their ability to change the moratorium or to take care of the problems that raised by the moratorium that's correct so circumstances would have had to change between the time the development application  and so when there's a denial of that type of an application no matter who it's from i think was the bike you know there wasn't an eye on this situation there was a tentative approve all subject to certain conditions that graph was there was a way in which they had no a person could challenge those conditions and make it an unconditional approval well that wasn't the context the conditional intent to serve allowed the project to go forward and be  these aren't on the record because it's a motion to dismiss i'm just curious why did the district object well at the time that the project was presented to the commission over two years had passed so that letter that conditional and tend to serve letter had actually expired right but in addition to that the district had received a compliance order from the regional water quality control  board which basically that there can't be any new hookups in the district until certain conditions until the district addresses certain problems and certain conditions are met so maybe i'm i'm just in those from the complaint but i mean i thought that the district had sent a letter to the planning commission objecting to the project as i write and that was yes but that was that was at the end of the entitlement process when the project seek mandamus review with the state court which they haven't done i thought they did seek mandamus review they just had not done it but before this case was filed it's my understanding that they have entered into a tolling agreement with sam benito county i am not aware of an action actually being filed with the court but only i do not know when you said tolling going to be an agreement that they can file correct they could have but it's the staff building and planning staff had made the recommendation not to approve the project based on th we would not have a formal of appeal from that decision a formal and other words that you're agencies made a decision not to not to grant the hooked up what would be the formal appeal or the process that that would normally be there for somebody in their position to challenge that decision well that's a good question on it because really there was no formal request so this was there has never been there was never a formal request for a water connection  denied it then i think arguably they would have standing because at that point they would have a panic for them but i think the question is what remedy they have when they have a state administrative remedy where they have a state judicial remedy a state mandamus action and superior court as an initial step yes and once they pursue mandamus then and pursue that process at that point they could see to i guess revisit these claims that they've brought over you i thought it was just like administrative review but with different names of things in the federal system in most states systems you go through the administrative process you lose to the state court and once they exhausted that process and obtained a final determination then at that point arguably they could come back but there's no administrative abo avenue before then i think what the judge is asking is there demonstrated any before going to the state court no i don't believe there is in this particular state governmental structure you mentioned going back that would be if they won in the superior court right correct ok now i understand so it was a futile for them to apply for oh ok now i don't believe so but they need to go through that process and i'm just saying as a futile he's arguing we don't need to go through the process because you've already decided that you're not going to grant it is that true well no because we aren't the ultimate decision maker as to this project no i understand that but i mean you gave them a conditional permission under my intent to serve around you could have just outright denied true correct yes you did and you gave and then it expire so their argument as to that not the project is that it would be futile to go back and ask you for for an additional intent to serve a letter because you would deny it is that true i really i can't answer that for you circumstances have changed the board makeup has changed so at this point i can't represent to the court one way or another if that would be futile what i can state though is if they pursued their mandamus action and went to the spirit court the local jurisdiction as this core has consistently found is the most appropriate one to deal with local land use decisions and craft remedies that are satisfactory to both sides so that it is possible that in doing that the superior court could send the case back to the board of supervisors with parameters on how to resolve the issue because ultimately it's the county board of supervisors not the water district that's going to decide whether the project is approved or not and i understand that i think he's separating the components of the project in other words if i understand his argument correctly is that the project is not going to go forward unless the water district agrees to provide water and wastewater services and you won't do that and therefore the project is not going to go forward his argument and that you've with the water moratorium in place that his project will never be developed so that's the basis of his action against the district and that has nothing to do with whether the board of supervisors takes final action or not they could take final action for a whole number of different reasons that's true your honor but that process that state process of for the appellants the opportunity the better answer would be is  ahead reference the problems with the conditions of the well and other factors of your agency's i guess operations they did so if the granting of a hook up is worthless until such time as as they can get approval from the board or supervisors and board of supervisors even though it relied not upon the martin per se but right but i'd point the problems of the the situation as they indicated in their decision in the current that's correct i mean ultimately the decision lies with the board of supervisors right now let's let's assume in the do you believe that the state court could order you in the present posture to give them a hook up and the words even if the project is approved that doesn't necessarily mean they get the water correct i'll be honest with you it presents a real dilemma for my client given the current state of the infrastructure a dilemma but i mean is it your position that the district could deny the hookup even if the spirit court approved project well i don't have a good answer for your honor because it really does present a dilemma on one hand there are there's a compliance order in place from the state right saying that you can't afford hookups if the state court were to order the project to client with a dilemma at that point because there would be competing and contradictory orders from the state that we would have to resolve to jail well yes and i mean i can represent to you that my client is attempting to comply but it's not a quick fix it's a municipal water district that was constructed in one nine hundred sixty there's one hundred customers so in terms of upgrading facilities it's not something that can happen overnight or even within a few months so it's an ongoing process  has been interpreted by this court much more broadly to include activities within the sphere of governmental activity or litigation so that the steps that itself in other words if it would not apply to any actions that the district took on its own that's that would be a legislative privilege perhaps but nor panicked and as a petition privilege so i would only be there the actions of the district and the commissioner's views of the thank you your honors and i do want to apologize and address one quick issue counsel did refresh my recollection i had prepared the complaint the mandamus complaint against the county of san benito and a different turn in our office instead of filing it negotiated with the county of seventy to enter into a totaling agreement that would allow us to file that lawsuit so that that lawsuit has not yet been filed that was they were prepared simultaneously but it would still be timely under that tolling agreement  under the i agree with with your honor's assessment nor pennington applying to the petitioning activity at the very end but not applying to the balance of the determinations i do want to make sure that we i'm very clear about one item so that if that's got what decision do you have that europe you're contesting the water district i mean your complaint talks about you object to them sending the letter you object to them testifying to them appealing but you don't have any other action that the district took formally against your clients understand you say it would be futile but we still don't have a decision from the district that's adverse to but we do have a statement from the district saying that they will no longer give us a hook up and they said that at the hearing your honor now i'm not using that to establish liability i'm using that statement to establish a finality and if utility to and if you look at  discriminate discriminatory and wrongful pattern of attempted and actual deprivation of due process rights not just the hearing but the the keeping of the intentional keeping of the water to fit in a substandard state so they could with plausibility say oh we can't issue a connection here but then when someone else comes along that they like they do issue a connection so it is it is that pattern throughout time of not addressing the water system of not complying with the state water