Abbott & Kindermann Land Use Law Blog : California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

• Global Warming: CEQA Guidelines, Mandatory Reporting
• Water Supply Legislation
• CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
• Subdivision Map Extension
• Interpreting Development Agreements
• Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

• Date: Thursday, January 21, 2010
• Location: Double Tree Hotel Modesto, 1150 Ninth Street
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

• Date: Thursday, January 28, 2010
• Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

• Date: Friday, February 12, 2010
• Location: Sacramento Hilton Arden West, 2200 Harvard Street
• Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
• Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

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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.

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By Cori Badgley and Nathan Jones

Easement disputes between neighboring property owners are easy fuel for lawsuits. Generally, an easement is a right to use another’s property, for a specific purpose. For the most part, easements are non-exclusive, meaning that so long as the underlying property owner does not interfere with the easement-holder’s right of use, he can continue to use the easement property. While this is the general rule, Gray v. McCormick (2008) 167 Cal.App.4th 1019 is an easement dispute case where the easement holder (“Gray”) claimed that the servient property owners (“McCormick”) had no right to use a connecting driveway that ran across their property because Gray held an exclusive easement over McCormick’s land.

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By Glen C. Hansen

The recent decision by the Court of Appeal, Second Appellate District, Division Three in Hines v. Lukes (2008) 167 Cal.App.4th 1174 describes how a judgment entered pursuant to a settlement agreement under Code of Civil Procedure section 664.6 must include all of the material terms of the settlement.

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By Glen Hansen

In Zanelli v. McGrath (2008) 166 Cal.App.4th 615, the Court of Appeal, First Appellate District clarified the circumstances under which easements may be extinguished under the doctrine of merger where the dominant and servient tenements are jointly owned by more than one person. As with most easement cases, the specific facts in Zanelli were critical to both the establishment and extinguishment of the easement in question.

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By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts and held along with the other California courts that even if the plaintiff provides evidence of open, notorious and continuous use, the plaintiff still bears the burden of producing evidence to show that the use was adverse. The burden does not shift to the defendant.

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By William W. Abbott

The Subdivision Map Act (“SMA”) contains a process for re-subdividing all or a part of an existing subdivision.  When that occurs, public easements shown on the prior map are extinguished unless incorporated into the new map. (Gov. Code, § 66499.20 ½.) This sounds like a simple enough concept, but in reality, there is nothing truly simple whenever the facts involve dirt, the SMA and easements.

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By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline.  The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.

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By William W. Abbott

The California Attorney General was recently asked whether or not the grant of a conservation easement on a portion of a parcel constituted a “division” for purposes of the Subdivision Map Act. (Government Code, §§ 66410 et seq.) The AG concluded, as many surveyors, local officials and land use attorneys had already determined, that such a conveyance was in fact, not a subdivision. (California Attorney General Opinion 06-801, August 14, 2007.)

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By William W. Abbott

When does an easement cross over and become a “division of land” for purposes of the Subdivision Map Act? Apparently, not as frequently as suggested by the California Attorney General and noted California authority.
 

In Blackmore v. Powell (2007) 150 Cal.App.4th 1593, the Second Appellate District ruled on the validity of an easement granted between adjacent owners, which provided the grantee with the right to an exclusive easement for ingress and egress as well as the right to construct a garage within the easement area. In Blackmore, a property owner (grantor) granted an exclusive easement to an adjacent owner (grantee). The scope of the easement was for driveway purposes, including the right to build a garage within the easement area. Title to both the benefited and burdened parcels passed to subsequent owners, who then initiated the dispute over the nature and scope of the easement, as it related to the ability to construct and exclusively occupy a garage.

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By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.

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