Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney 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.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By Glen C. Hansen

In Scher v. Burke (2015) 240 Cal.App.4th 381, the Court of Appeal for the Second Appellate District held, in the published portion of the decision: (1) that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the March 4, 1972 effective date of that statute; and (2) that evidence about the use of a road on private property after that date cannot support a finding that the road was impliedly dedicated to public use prior to that date. (In the unpublished portion of the decision, the Court of Appeal examined extensive historical evidence and affirmed the trial court’s judgment that Plaintiffs had not established their right to an express, prescriptive, or equitable easement for access across Defendants’ properties. A copy of the entire Court of Appeal decision can be found here.)

Continue Reading Court of Appeal Disagrees With Other Courts And Holds That California Civil Code Section 1009 Bars All Use Of Private Real Property From Developing Into An Implied Public Dedication, Not Just Recreational Use.

By Brian Russell

Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303

The owners of the property and the developer Community MultiHousing, Inc. sought a permit under Los Angeles City code section 14.3.1 to build an eldercare facility at 6221 North Fallbrook Avenue in Woodland Hills. Section 14.3.1’s purpose is to “provide development standards for Alzheimer’s/Dementia Care Housing, Assisted Living Care Housing, Senior Independent Housing and Skilled Nursing Care Housing, create a single process for approvals and facilitate the processing of application of Eldercare Facilities. These facilities provide much needed services and housing for the growing senior population of the City of Los Angeles.” (§ 14.3.1, subd. A.) The proposed eldercare facility exceeded the maximum allowable density and floor area of the residential zone. Zoning regulations limited a structure to 12,600 square feet, and the proposed facility would contain 50,289 square feet, including over 20,000 square feet devoted to common areas. The proposed facility would have 60 guest rooms and 76 guest beds. Application of the zoning regulations would have limited the site to 16 guest rooms. Pursuant to section 14.3.1, subdivision E, to approve an eldercare facility, the zoning administrator is required to make several findings. “The Zoning Administrator shall not grant the approval unless he or she finds that the strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations.”

Continue Reading Local Zoning Laws Prevent an Eldercare Facility from Proceeding with Plans for Development

By Brian Russell

Nick v. Department of Alcoholic Beverage Control (2014) 233 Cal.App.4th 194.

This is a case of one convenience store owner attempting to prevent another convenience store, 7-Eleven, from selling beer and wine by using the powers of the Department of Alcoholic Beverage Control (ABC). The petitioners, Adam and Sherry Nick (Nick) claimed in its complaint that under the Alcoholic Beverage Control Act (Bus. and Prof Code, Section 23000 et seq. or the “Act”) it prohibits the ABC from issuing a license that would result in or add to an undue concentration of licenses unless the local governing body of the area where the applicant’s premises is located determines that issuing the license would serve a “public convenience or necessity.”

Continue Reading Did the California Alcoholic Beverage Control Cede its Authority?

By Glen Hansen

Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1.

In Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, the Court of Appeal for the First Appellate District held that a nonjudicial sale of a residence was not void due to irregularities in the foreclosure proceedings, where the party executing and recording the notice of default as the “trustee” had not yet been substituted as the trustee by the lender’s assignee.

Continue Reading Nonjudicial Sale Is Not Void Merely Because The Trustee Had Not Yet Been Substituted As The Trustee At The Time It Recorded The Notice Of Default

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.

 

By Glen C. Hansen

A trio of cases were reported by the California Court of Appeal in the first half of 2014 that clarified the disclosure and fiduciary duties of real estate brokers and their agents.

Continue Reading California Courts of Appeal Issue Several Decisions Clarifying Disclosure Duties Of Real Estate Sellers And Their Brokers/Agents