Modesto triumphs in Del Rio well lawsuit, though appeal considered
Modesto did not violate the civil rights of some rural homeowners north of town who weren’t notified before city leaders decided to sink a well serving the nearby Del Rio community, appellate justices said in a ruling Friday.
The neighbors disagree and are considering an appeal to the California Supreme Court, their attorney said. The well has yet to be drilled.
Friday’s ruling reverses that of a judge in Modesto who had sided with the neighbors in May 2015. They had worried that a big municipal well could suck dry their shallow domestic wells.
There is no indication that (the North Modesto Groundwater Alliance) ever attempted to make an evidentiary showing that its members’ property or property values were actually likely to be harmed.
Appellate court ruling
Calling themselves the North Modesto Groundwater Alliance, the neighbors sued after the Modesto City Council approved well construction without alerting them, giving them no chance to object.
Modesto acquired Del Rio’s water operations from a private company in 1995. To settle a separate lawsuit, the city promised to make improvements, including drilling two wells and installing a 20-foot water tank.
The neighbors’ lawsuit stalled those plans and prompted the city to conduct more studies. A draft environmental impact report was recently circulated suggesting that neighbors need not worry about their wells competing with Modesto’s.
Friday’s ruling in Fresno’s 5th District Court of Appeal had nothing to do with the recent study but declared that neighbors failed to prove that their properties would be “substantially harmed” by a new city well nearby.
The city’s action in proceeding with project approval without individual notice to NMGA’s members was not arbitrary, capricious, entirely without evidentiary support, or procedurally unfair, because individual notice to neighbors is not required when an agency makes a legislative decision.
Appellate court ruling
City officials did not violate neighbors’ rights “because individual notice to neighbors is not required when an agency makes a legislative decision,” the panel of three appellate justices found. Modesto had published a notice in The Modesto Bee before approving the well and tank project.
“The city could not abuse its discretion by not doing that which it was not obligated to do,” says the ruling, written by Judge Bruce Smith, with Judges Brad Hill and Gene Gomes concurring.
Neighbors had sued eight months after a statute of limitations had passed, but Stanislaus Superior Court Judge Roger Beauchesne had allowed the case to continue on the theory that their rights had been compromised. They had not, appellate justices found, so neighbors “had no constitutional right to pursue a stale claim,” the ruling says.
“The city is very happy with it,” said attorney Rick Jarvis.
Daniel W. Smith, the neighbors’ attorney, said his clients are mulling their next step, including “the option of seeking review by the California Supreme Court.”
Garth Stapley: 209-578-2390
This story was originally published January 17, 2017 at 3:15 PM with the headline "Modesto triumphs in Del Rio well lawsuit, though appeal considered."