In a case that pitted open space protection against eminent domain law, the First District Court of Appeal has ruled that a Sonoma County open space district did not need to get voter approval before granting an easement for a treated wastewater pipeline across district property. Opponents of the pipeline project contended that because the City of Santa Rosa only threatened to get the easement through condemnation proceedings, the district had voluntarily sold the easement. A voluntary sale without voter approval would violate the law on which the district's creation was based. But the appellate court ruled that the property transaction was indeed controlled by eminent domain law because the city had "expressed unequivocally by words and actions its intent to condemn if negotiations proved fruitless." The case is only one aspect of a long-running controversy over whether Santa Rosa should dispose of its treated wastewater by injecting it into the "Geysers Known Geothermal Resources Area" in the mountains 40 miles northeast of town. The project is also intended to generate steam, which would be used to create electricity. In 1990, Sonoma County voters approved creation of the Sonoma County Agricultural Preservation and Open Space District. Four years later, the National Audubon Society granted the district a "Forever Wild" easement on 1,400 acres the Society owned in the mountains between Healdsburg and the Geysers. The area is known as the Mayacamas Mountain Sanctuary. In 1998, Santa Rosa approved the wastewater disposal and power generation proposal — called the Geysers Research Project — over the objection of some environmental organizations. In April 2000, the city selected a route for the pipeline carrying treated wastewater to the Geysers. The city chose the route, in part, to settle a California Environmental Quality Act suit that the Audubon Society filed against the city regarding the pipeline project. The route crossed about 3 1/2 miles of the Mayacamas Mountain Sanctuary and required construction of a pump station on the sanctuary. The city then set about acquiring the property it needed to build the pipeline. The city reached settlements with 80 property owners and filed eminent domain actions against about 28 other landowners. In October 2000, the city asked the district to approve Audubon's conveyance of a utility easement across the sanctuary. The district's general manager and a county attorney then began negotiating with city representatives and the Audubon Society. They struck a deal in which the district would approve the utility easement in exchange for the city giving the district conservation easements to four city-owned properties comprising 1,400 acres. Additionally, the agreement called for the Audubon Society to use the $1.3 million the city had paid to settle the CEQA suit to "restore, preserve, protect and provide public access to" the sanctuary. In March 2001, the district's board backed the deal. In approving the deal, the board found that Public Resources Code § 5542.5 — which contains a presumption that open space was the best and most necessary use of the property — had been rebutted. The board further found that § 5540 — which requires either voter approval or state legislation for the district to transfer an interest in property used for open space — did not apply because the district's approval of the easement was not voluntary. Jack Johnston, a Sonoma County landowner, then sued, arguing that the district violated § 5540. Sonoma County Superior Court Judge Lawrence Antolini found that the transaction was governed by eminent domain law (Code of Civil Procedure § 1230.010 et seq.), not by the Public Resources Code, and he ruled for the district. The appellate court upheld that decision. In the appeal, Johnston argued that the "mere threat" of condemnation did not make the Public Resources Code mandate go away. He argued that the conveyance was a backroom deal made by public officials and should have been decided by voters. But the court found that the city had triggered eminent domain law, which allows for involuntary transfers of open space. "The law of eminent domain is triggered when there is ‘evidence of [an] implied or actual threat of condemnation, so that the ultimate result is a foregone conclusion,'" Justice James Marchiano wrote, citing Pacific Outdoor Advertising Co. v. City of Burbank, (1978) 86 Cal.App.3d 5. "The conveyance of the sanctuary utility easement was done after an unequivocal expression of the intent to condemn, and thus in lieu of inevitable condemnation," Marchiano continued. "[U]nder the law of eminent domain, the District had the right to negotiate a resolution of the looming threat of the easement's condemnation — and properly did so …" In fact, Government Code § 7267.1 required the city to enter negotiations with property owners, the court noted. And the district has "an obligation to achieve the best result for its members at the most propitious stage." Pointing to the new open space easement on 1,400 acres of city land and the dedication of $1.3 million to sanctuary management, the court found that the district "obtained settlement terms far out of proportion to any money judgment in an eminent domain proceeding, and of substantial public benefit. … No court sitting in an eminent domain would have the power to order these measures," Marchiano wrote. A court could have only compensated the district with about $100,000 to $150,000, he concluded. The Case: Johnston v. Sonoma County Agricultural Preservation and Open Space District, No. A097121, C.D.O.S. 6916, 2002 DJDAR 8645. Filed July 31, 2002. The Lawyers: For Johnston: Rachel Hooper, Shute, Mihaly & Weinberger, (415) 552-7272. For the district: Sue Gallagher, deputy county counsel, (707) 565-2421. For the City of Santa Rosa: Patrick Wilson, assistant city attorney, (707) 543-3040. For the Audubon Society: J. William Yeates, (916) 860-2000.