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<br />,.~2-:::::~:.::.;i.,:::::~:?:&:.~,,-,""-~;~~"'::---"':.:::"'::'~1, ~ _!~~'U:~..;-;:-,:.a:;;.;:..':..;..-~:-.,.~':.LL ~"..:;,.:: -".'.."-'--'=-:.'.." -'-'-"-- .;..~>---,."-_.- <br /> <br />; <br />~ 1 . <br /> <br />...:-~ <br /> <br />( 'J <br /> <br />( <br /> <br />October 25, 20081 Volume 2\ No. 20 <br /> <br />";) <br /> <br />ty permit subject to some exceptions. The county issued citations and <br />assessed fines against Martin. <br />Martin appealed. He argued that flooding washed out an existing <br />spillway across the stream. He said this created an emergency because <br />it was "sudden and unexpected," and cut him off from access to a <br />mobile home. He asserted that the grant he received from the Federal <br />Emergency Management Agency (FEMA) for repair to the spillway <br />, demonstrated that there was an emergency. Further, he asserted that <br />he couHperform emergency repairs 'to the spillway without a countY <br />grading permit because: (1) the state's Fish and Game Code'preempt~ <br />ed the Grading Ordinance, and authorized him, to make emergency <br />repairs; (2) the spillway was excepted from the Grading Ordinance <br />bec~use it was a private road; and (3) the grading he performed was <br />excepted from the Grading Ordinance because he moved less than 50, ' <br />cubic yards of material. <br />The county contended that even if Martin's grading was for emer- <br />gency repairs, a permii: was required under the county's Grading <br />Ordinance. ' <br />Ultimately, the superior court concluded that Martin should have <br />obtained a grading permit from the county in addition to any other <br />approvals from the state's Department of Fish and Game or FEMA. <br />Martin appealed. <br /> <br />DECISION: Affirmed. <br /> <br />} <br /> <br />On appeal, the ,court first concluded that the county's Grading Or- <br />dinance was not preempted by the state's Fish q.nd Game Code. The <br />, Fish and Game Code prohibited an entity from altering a stream un- <br />less the state's Department of Fish and Game was properly notified. " <br />However, it did not require notification when "immediate emergency <br />. work [was] necessary to protect life or property." Martin had argued' <br />, that the county's Grading Ordinance conflicted with the state's Fish <br />and Game Code 1}0tIDcation requirements and was thus preempted. <br />The court disagreed. It found that the Grading Ordinance was not a <br />10ca1"regulation; but originated in state housing law, which expressly <br />required counties to adoptminirtmm building standards for grading. <br />The court said that because state housing law was of equal authority <br />with the state's Fish and Game Code, by extension the Grading Ordi- <br />nance was also of equal authority with the Fish and Game Code and <br />therefore was not preempted by it. Moreover, the court noted that the <br />Fish and Game Code notification requirements required otherneces- <br />sary permits be obtained by the applicant. <br /> <br />@ 2008 Thomson Reuters/West <br /> <br />i <br />I <br />i <br />I <br />I <br />I <br />I <br /> <br />9 <br /> <br />89 <br />