February 2015

By William W. Abbott

Citizens for Fair REU Rates v. City of Redding (2015) 233 Cal.App.4th 402.

In Citizens for Fair REU Rates v. City of Redding, the Third District Appellate Court found that the City of Redding’s PILOT charge was subject to Proposition 26’s voter approval requirement unless the charge reasonably related to the cost of service.

Continue Reading Court Grounds City’s PILOT For Unauthorized Taxing

By Glen C. Hansen

Richardson v. Franc (January 27, 2015, A137815) ___ Cal.App.4th ___.

In Richardson v. Franc, the Court of Appeal for the First Appellate District affirmed a trial court’s granting of an irrevocable license in perpetuity to maintain and improve landscaping, irrigation, and lighting within the area of an express easement for access and public utility purposes where, over a 20-year period, the current easement holders and their predecessors-in-interest installed and maintained those improvements at significant cost without any objection from the servient landowners or their predecessors‑in‑interest.

In 1989, Karen and Tom Poksay began building their home on the undeveloped property at 2513 Laguna Vista Drive in Novato, California. The project included constructing and landscaping a 150-foot long driveway within the 30-foot wide easement running down to the site of their new home, which was hidden from the street. The driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was then owned by Dan and Jeanne Schaefer. The easement was for access and utility purposes only. The landscaping was designed to be “natural and beautiful on both sides to be a nice entrance to the home.” Plants and trees were planted along both sides of the driveway in the easement area, along with a complex drip irrigation system. Water fixtures were also installed along the driveway for fire safety, along with electrical lighting along the driveway (later replaced by solar lighting). Through their own and hired labor, the Poksays maintained the landscaping, irrigation and electrical systems, and incurred costs in doing so.

James Scott Richardson and Lisa Donetti (“Respondents”) purchased the Poksay property in late 2000. Over the years, Respondents added new vegetation in the easement area, hired landscapers to maintain it, and incurred costs to irrigate it.

Appellants purchased 2515 Laguna Vista Drive in 2004, knowing that Respondents were improving the landscaping in the easement area, including employing landscapers. For six years, Appellants and Respondents lived in relative harmony, with no indication by Appellants that they wished Respondents to stop maintaining and improving the easement landscaping. In 2010 Appellants raised the first-ever objections about the landscaping and other improvements. In September 2010, one of the Appellants cut the irrigation and electrical lines on both sides of the driveway and disassembled the water valve pumps. Appellants also sent a letter through counsel demanding that Respondents remove all the landscaping and supporting systems from the easement area within five days. In response, Respondents filed an action that alleged claims for an irrevocable parol license, an equitable easement, and declaratory and injunctive relief. The trial court denied relief on the equitable easement cause of action, and granted an irrevocable license for Respondents “and their successors-in-interest to maintain and improve landscaping, irrigation, and lighting within the 30’ wide and 150’ long easement.” Appellants appealed. Under an abuse of discretion standard, the Court of Appeal for the First Appellate District affirmed the trial court’s equitable judgment.

The court of appeal initially held that Respondents’ claim for an equitable easement to maintain the improvements in the easement area was properly rejected. The doctrine of equitable easements is frequently invoked in order to maintain structures on neighboring property in circumstances where prescriptive easements and adverse possession claims would not apply. A claim for an equitable easement includes the requirement that the easement was created without knowledge or means of knowledge of the facts. Here, the trial court found that Respondents

knew or should have known at the time of their purchase that the Grant Deed, on its face, describes the easement for ‘access and utility purposes.’ The plants and irrigation system that [Respondents] seek to maintain for the landscaping do not fall under the easement description. Nor is this a case where [Respondents] believed that these items were on their property and did not realize they were, in fact, on [Appellants’] property.

Thus, an equitable easement could not be granted under the circumstances in this case.

However, the court of appeal held that the trial court did not abuse its discretion in granting Respondents’ request for an irrevocable license. “[A] license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge.”

In this case, the trial court concluded that the following evidence at trial was sufficient under law and equity to support a finding of an irrevocable license: The Respondents’ “substantial expenditures in the easement area for landscaping, maintenance, care, and physical labor”; the Poksays’ expenditure of “substantial sums in the easement area for landscaping, maintenance, care, and physical labor”; and “no objection … to any of this” by either Appellants or Mr. Schaefer over the course of more than 20 years. The court of appeal not only affirmed that ruling, but also rejected Appellants’ five other arguments against that ruling.

First, the court held that permission sufficient to establish a license can be implied from the acts of the parties.

Second, the court held that the Respondents’ failure to submit a specific dollar amount as to the cost of these improvements is irrelevant, because there was sufficient evidence to infer that the costs incurred in both money and time in maintaining the landscaping and other improvements were substantial.

Third, the appellate court held that the trial court did not abuse its discretion in concluding it would be inequitable to require respondents to remove these improvements when the property is transferred, given the substantial investment in time and money and the permanent nature of these improvements.

Fourth, the court recognized that providing a level of certainty to the parties by defining the scope of the irrevocable license with the precise arithmetic measurements of the easement area will prevent the parties from returning to court for further clarification as to the scope of the irrevocable license.

Fifth, Respondents’ knowledge that the landscaping and other improvements were not covered by the express terms of the easement was irrelevant to the granting of an irrevocable license.

Comment: The Richardson case reminds parties who have constructed and/or maintained structures on a neighbor’s property for a long time that they may have another legal theory by which to avoid the removal of those structures, along with the potential doctrines of equitable easements, prescriptive easements and adverse possession.

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

 

 

 

By Glen C. Hansen

In Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, the Court of Appeal for the Fifth Appellate District affirmed a trial court’s order granting a preliminary injunction that enjoined defendants from soliciting charitable donations or engaging in other expressive activities on sidewalks adjacent to store entrances in plaintiff’s shopping center, because such store entrances and aprons are not a public forum. 

Plaintiff Donahue Schriber Realty Group, Inc. (“Plaintiff”) controls the Fig Garden Village shopping center, an outdoor shopping center with approximately 60 retailers in Fresno, California. Plaintiff has a policy of prohibiting solicitation of donations on the shopping center property. However, Plaintiff allows other forms of expressive activity, such as gathering petition signatures, in a designated public forum area only.

On July 28, 2013, two solicitors for Defendant Nu Creation Outreach went on the shopping center property and solicited donations on sidewalk areas adjacent to the entrances of stores within the shopping center. The next day, six to eight solicitors for Nu Creation Outreach solicited donations adjacent to multiple retailers in the shopping center.  The solicitors refused to leave when asked to do so, and the police would not arrest the solicitors without a court order. Plaintiff then filed a complaint against Nu Creation Outreach and one of its members (collectively, “Defendants”) for declaratory relief and trespass. At Plaintiff’s request, the trial court eventually issued a preliminary injunction that did not prohibit all solicitation at the shopping center, but restricted it to a designated public forum area. Defendants appealed. The Court of Appeal affirmed.

The appellate court held that the trial court did not abuse its discretion in finding that Plaintiff demonstrated a likelihood of prevailing on the merits. Plaintiff submitted evidence sufficient to satisfy its trespass cause of action because the solicitors’ activities on the shopping center property exceeded the scope of consent given for entry, because Plaintiff believed the solicitors’ activities were interfering with the flow of traffic around the entrances to stores in the shopping center, discouraging customers from returning to shop in the shopping center, and eroding the goodwill of both customers and tenants, and because the police declined to remove the solicitors.

Also, and most importantly in the case, the Court of Appeal rejected the Defendants’ argument that the portion of the shopping center where the solicitors were soliciting donations was a public forum. A public forum is where speech could be limited only by reasonable time, place, and manner restrictions, that are content neutral, narrowly tailored, and leave ample alternative means of communication of the information.  As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; however, the right to exclude persons exercising First Amendment rights is not absolute. Here, the court relied on Ralphs Grocery Co v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083, 1092, 1104, which held that “within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished, are not public forums,” and “[o]n the private property of a shopping center, the public forum portion is limited to those areas that have been designed and furnished to permit and encourage the public to congregate and socialize at leisure.”

The Court of Appeal found that substantial evidence supported the trial court’s conclusion that the sidewalk areas where Defendants pursued their solicitation of donations are not public forums. Plaintiff submitted a declaration stating that the sidewalk and apron areas in the shopping center are not designed or furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation; they are designed only to facilitate customers’ entrance to and exit from the stores.  Also, the shopping center had a policy of permitting expressive activities only in certain areas; no solicitation of donations or gathering of signatures on petitions was permitted on the sidewalk or apron areas directly adjacent to the individual stores.

The Court of Appeal further held that, in this kind of free speech rights versus private property rights cases, a showing that Plaintiff is likely to prevail on the merits “establishes that it will be irreparably harmed if the injunction is not granted.” The evidence presented to the trial court further demonstrated that the disruptive solicitation activity of Defendants’ solicitors harms the shopping center’s relationship with its tenants and customers and erodes customer goodwill.

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.