May 2009

By Cori Badgley

In 2008, the California Supreme Court held that the proper standard of review in deciding whether assessments imposed by local agencies violate Article XIII D of the California Constitution is de novo. (Silicon Valley Taxpayers’ Association, Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 (“SVTA”); see California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218.)  The Court also held that the local agency has the burden of proof.  (Id.)  In light of the holding in SVTA, the Court of Appeal, Second Appellate District reevaluated its decision to uphold the creation of a special assessment district by the City of Pomona.  Although the court applied the de novo standard of review instead of substantial evidence, the court still found that the assessments imposed by the City of Pomona through the creation of the Downtown Pomona Property and Business Improvement District (“PBID”) did not violate Article XIII D of the California Constitution.

Continue Reading The Golden Rule of Assessments: The Levy Cannot Exceed Reasonable Cost of Proportional Special Benefit

By Glen Hansen

On February 3, 2009, the State Water Resources Control Board adopted its long-awaited Recycled Water Policy. The new policy is intended to support the Water Board’s strategic plan to increase sustainable local water supplies. The purpose of the new policy is to increase the beneficial use of recycled water from municipal wastewater sources in a manner that fully implements state and federal water quality laws. Pursuant to Water Code sections 13550 et seq., the Water Board declared: “[I]t is a waste and unreasonable use of water for water agencies not to use recycled water when recycled water of adequate quality is available and is not being put to beneficial use…”

Continue Reading State Water Board Issues New Recycled Water Policy

By Cori Badgley

In Hofman Ranch v. Yuba County Local Agency Formation Commission, 172 Cal.App.4th 805 (2009), the Court of Appeal, Third Appellate District held that an independent contractor hired by the Local Agency Formation Commission (“LAFCo”) acting as LAFCo’s executive officer, was, for the purpose of the Brown Act, an employee of LAFCo.  Because the independent contractor was an employee, LAFCo lawfully held a closed session to discuss the contractor’s employment terms pursuant to the Ralph M. Brown Act.

Continue Reading “Independent Contractor” Still Considered “Public Employee” Under the Brown Act

By Glen C. Hansen

In Murphy v. Burch, 2009 Cal. LEXIS 3983 (April 27, 2009, No. S159489), the California Supreme Court held that the common law elements of strict necessity and common ownership are only part of the showing that is required to establish an easement by necessity, where the common ownership is traced to the federal government. In such a case, a claimant must also prove congressional intent to reserve an access right-of-way, and the inability of the government to condemn an access easement.

Continue Reading Where Property Ownership Originates From a Federal Patent, the Rules for an Easement by Necessity are Different (and May be Practically Impossible to Meet)

By Cori Badgley

In Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, the court reminded the defendant, Michael Bollag, that the term “consent” in a contract does not give the party unbridled freedom to refuse consent.  Instead, the implied requirement of good faith and fair dealing requires that the refusal of consent be reasonable and not merely based on “personal taste, convenience or sensibility.”

Continue Reading Consent Unreasonably Withheld Amounts to Breach of Purchase and Sale Agreement

By Glen C. Hansen

In Linthicum v. Butterfield (April 2, 2009) 2009 Cal.App. LEXIS 473 (as modified on April 9, 2009, 2009 Cal.App.LEXIS 496), the California Court of Appeal, Second Appellate District, affirmed a trial court’s creation of an equitable easement. In that case, Plaintiffs bought a parcel of land in a mountainous area near Los Padres National Forest in Santa Barbara County. A 60-year old roadway existed over that parcel. Defendant owners of neighboring parcels used that roadway as the only access to their land.  Plaintiffs sought an injunction to prevent Defendants from using the roadway.  Defendants cross-complained to quiet title to an easement for the roadway.  The primary issue in that case was whether the trial court abused its discretion in creating an “equitable easement” over the roadway in favor of the Defendants.

Continue Reading Through Equity, A Court Can Create a Roadway Easement

By William W. Abbott

Adjudicating old subdivision maps is becoming more and more like driving the last nail into a coffin: the patient is dead and we are simply down to the final details.  Blog readers may remember Revisiting History: When is a Recorded 1915 Map Not a Subdivision Map?, which reviewed the holding in Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, a case in which the First Appellate District concluded, relying on Gardner v. County of Sonoma (2003) 29 Cal.App.4th 990, that a 1915 subdivision map did not meet the grandfather test for prior subdivisions found in Government Code section 66499.30.

Continue Reading Revisiting History Part II: When is a Recorded 1909 Map Not a Subdivision Map?