How You Can Help Communities Affected by Wildfires

Our hearts go out to all of those who have been affected by the recent wildfires that have devastated our state. We are grateful to all the firefighters, responders and individuals helping with this tragedy. Abbott & Kindermann, Inc. would like to reach out to all of our friends, colleagues, and communities by identifying resources available for those who need it and ways for others who want to contribute.

Here are some resources for northern California:

  • American Red Cross

http://www.redcross.org/get-help/how-to-prepare-for-emergencies/types-of-emergencies/fire/home-fire-recovery

  • Salvation Army Napa Corps

http://napa.salvationarmy.org/

  • The California Department of Aging

http://www.aging.ca.gov/

  • State Supplemental Grant Program

http://www.dss.cahwnet.gov/dis/PG238.htm

  • Food Pantry Napa

https://www.foodpantries.org/ci/ca-napa

  • Food Pantry Sonoma

http://sonoma.networkofcare.org/mh/services/subcategory.aspx?tax=BD-1800.2000

  • Food Pantry, Sutter & Yuba Counties

http://sutter.networkofcare.org/mh/services/subcategory.aspx?tax=BD-1800.2000

  • Humane Society

http://sonomahumane.org/

  • California Association of Winegrape Growers

https://www.cawg.org/

  • Napa Valley Community Foundation

http://napavalleycf.org/fire-donation-page/

  • Community Foundation of Mendocino County

http://www.communityfound.org/for-donors/donate-today/community-funds/disaster-fund-for-mendocino-county/

  • California Northwest – American Red Cross

http://www.redcross.org/local/california/northern-california-coastal/chapters/california-northwest

  • United States Department of Agriculture

https://www.usda.gov/

  • California Department of Insurance

https://www.insurance.ca.gov/

  • Airbnb

http://www.sfgate.com/technology/article/Airbnb-opens-program-to-coordinate-emergency-12264485.php

  • NBC Drop off locations

http://www.nbcbayarea.com/news/local/How-To-Help-North-Bay-Fire-Relief-Efforts-450142573.html

  • Napa Valley Community Disaster

http://www.napavalleycf.org/fire-donation-page/

  • Humane Society of Napa County

https://napahumane.org/

 

 

 

Glen C. Hansen of Abbott & Kindermann, Inc., will present an update on recent developments in resolving easement, boundary, and implied public dedication disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating, Interpreting, and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Establishing Equitable Easements
  • When Implied Dedications of Public Easements Exist, and When They Don’t.

MCLE and American Planning Association continuing education credits offered. (Pending)

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc., and a long-time practitioner in real estate and land use law.

Cost $85.00

Location and Time

Roseville – October 13, 2017, 8:00 a.m.-11:45 a.m.  (To Register CLICK HERE)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

In Murr v. Wisconsin, U.S., 137 S.Ct. 1933 (2017), the U.S. Supreme Court established a multi-factored test to determine what is the proper unit of property against which to assess whether a challenged governmental action constitutes a regulatory taking for which just compensation is owed under the U.S. Constitution. Because the test for a regulatory taking involves a comparison of the value that has been taken from the property with the value that remains in the property, the multi-factored test defines “the unit of property ‘whose value is to furnish the denominator of the fraction.’”

In Murr, Petitioners owned two adjacent lots–Lot E and Lot F–along the lower portion of a river in Wisconsin that is protected under local state and federal law. State and local regulations prevented the use or sale of adjacent lots as separate building sites unless they have at least one acre of land suitable for development. Both lots were over one acre in size, but each had less than one acre suitable for development due to their topography. The unification of the lots under the Petitioners’ common ownership implicated the rules barring their separate sale or development. Petitioners considered selling Lot E as part of an improvement plan for the lots, and sought variances from the existing regulations from a local agency. However, that agency denied the variance request and the state courts affirmed on the ground that the regulations effectively merged the lots for sale or development purposes.

Petitioners filed suit in state court against the State of Wisconsin on the ground that the merger regulations were a taking under the U.S. Constitution because the regulations deprived Petitioners of all, or practically all of the use of Lot E since the lot cannot be sold or developed as a separate lot under the regulations. The trial court granted summary judgment to the State on the ground that Petitioners had other options to enjoy and use their properties. The trial court also found that Petitioners had not been deprived of all economic value of their property because the decrease in market value of the unified lots was less than 10 percent. The Wisconsin Court of Appeals affirmed summary judgment. The U.S. Supreme Court granted certiorari and affirmed.

Writing for the 5-3 majority, Justice Kennedy described the key legal question in the case as follows:

What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, “[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’” [Citations omitted.]

The majority rejected each of the formalistic rules advocated by the State and Petitioners because “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.” Justice Kennedy stated that no single consideration can supply the exclusive test for determining the denominator. That is because of the competing constitutional principles underlying the Takings Clause. Justice Kennedy explained:

A central dynamic of the Court’s regulatory takings jurisprudence, then, is its flexibility. This has been and remains a means to reconcile two competing objectives central to regulatory takings doctrine. One is the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership. Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.

The other persisting interest is the government’s well-established power to “adjus[t] rights for the public good.” In adjudicating regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics of the case. In all instances, the analysis must be driven “by the purpose of the Takings Clause, which is to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’”.

In light of those countervailing public policies, Justice Kennedy stated that courts must consider a number of factors in making the “denominator” determination:

[W]hether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition.

The majority held that the factors to be considered in such an analysis are the following.

First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law. This factor recognizes that “reasonable expectations of an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property.” Therefore, a reasonable restriction that predates a landowner’s acquisition can be one of the objective factors that most landowners would reasonably consider in forming fair expectations about their property.

Second, courts must look to the physical characteristics of the landowner’s property. Such characteristics include the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment. For example, the property’s location in an area that is subject to, or likely to become subject to, environmental or other regulation is a relevant consideration.

Third, courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. Though a use restriction may decrease the market value of the property, the effect may be tempered if the regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty.

Applying that multifactor standard, the majority held in this case that Petitioners’ property should be evaluated as a single parcel consisting of Lots E and F together. The Court reasoned that (1) The treatment of the property under state law indicates petitioners’ property should be treated as one when considering the effects of the restrictions; (2) the physical characteristics of the property support its treatment as a unified parcel; (3) the prospective value that Lot E brings to Lot F supports considering the two as one parcel for purposes of determining if there is a regulatory taking; and (4) the special relationship of the lots is shown by their combined valuation. Therefore, the Court held that the Wisconsin Court of Appeals was correct in analyzing petitioners’ property as a single unit.

The Court further held that, by considering Petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Petitioners had not been deprived of all economically beneficial or productive use of their property (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)), and they failed to establish that they suffered a taking under the more general test of Penn Central Trans. Co. v. New York City (1978) 438 U.S. 104.

In dissent, Chief Justice Roberts advocated sticking with “our traditional approach,” under which “[s]tate law defines the boundaries of distinct parcels of land, and those boundaries should determine the ‘private property’ at issue in regulatory takings cases.” Justice Roberts complained that the majority decision “knocks the definition of ‘private property’ loose from its foundation on stable state law rules and throws it into the maelstrom of multiple factors that come into play at the second step of the takings analysis.” In short, the dissent believed that the new framework established by the majority “compromises the Takings Clause as a barrier between individuals and the press of the public interest.”

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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 Hansen

In Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, the California Supreme Court held that private owners of certain coastal property who allowed the public to use the property for recreational purposes over a period of years thereby impliedly dedicated property rights to the public. The Legislature responded to Gion by enacting Civil Code section 1009. That section generally provides that “no use” of private noncoastal property after the legislation’s effective date of March 4, 1972, will give rise to “a vested right” in the public to continue using the property permanently, unless the property owner makes an express, irrevocable offer to dedicate the property to public use. In Scher v. Burke (2017) 3 Cal.5th 136, the California Supreme Court resolved a dispute between the Courts of Appeal and held that 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 March 4, 1972.

In Scher, Plaintiffs owned property along Henry Ridge Motorway, which is located in the unincorporated Topanga Canyon area in the Santa Monica Mountains in Los Angeles County. Plaintiffs purchased their property along Henry Ridge Motorway in 1998 with a 1948 easement that only gave them access to the north. Defendants’ properties were located south of Plaintiffs’ property along Henry Ridge Motorway and/or along an adjacent road.

Much of the case concerned whether and in what manner Henry Ridge Motorway and the adjacent road were used by the public. When Pauline Stewart, the “matriarch of Henry Ridge,” moved to Henry Ridge Motorway in 1977, it was merely a “fire road.” In 1984, the Los Angeles County Fire Department notified Stewart that it would no longer maintain the road because the “County had designated it as a private road.” Stewart described Henry Ridge Motorway in a 1988 letter as “a road on private property so it is considered a private road, it is not a public thoroughfare, even though it is open to the public for all practical purposes.” In the past, several Defendants recorded irrevocable offers to dedicate easements to the public for a hiking and/or an equestrian trail over those portions of Henry Ridge Motorway that crossed over Defendants’ properties. Defendants have also sought to limit public access over Henry Ridge Motorway and the adjacent road south of Plaintiffs’ property, including locking gates, “religiously” stopping drivers on those roads that they did not recognize, and placing signs that forbid trespassing or state “No access to Henry Ridge Road. Locked gates ahead.”

Plaintiffs alleged, among other things, Defendants have acquiesced to the dedication to public use of the entirety of Henry Ridge Motorway and the adjacent road across defendants’ properties, and that Plaintiffs are entitled to use Henry Ridge Motorway and the adjacent road as a public street. The Superior Court for Los Angeles County held, among other things, that Henry Ridge Motorway and the adjacent road had been impliedly dedicated as public streets under Civil Code section 1009. Defendants appealed part of the judgment. The Court of Appeal reversed the implied dedication part of the judgment in a published portion of its decision. The California Supreme Court affirmed the decision of the Court of Appeal, and remanded to the Superior Court for entry of judgment in favor of Defendants.

In 1971, the Legislature enacted Civil Code section 1009 to restrict the common law implied dedications to the public. Subdivision (b) of that section declares that

“no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made … .”

That statutory restriction was made effective March 4, 1972.

Several cases included language and/or dicta that section 1009, subdivision (b), applied only to recreational uses from developing into an implied public dedication. (See Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471; Pulido v. Pereira (2015) 234 Cal.App.4th 1246; Bustillos v. Murphy (2002) 96 Cal.App.4th 1277.) In Scher, the Court of Appeal disagreed with the language in those cases, and held that section 1009, subdivision (b), barred all public use, not just recreational use, from developing into an implied public dedication. The Supreme Court granted review to resolve that disagreement among the Courts of Appeal.

The Court held that section 1009, subdivision (b), applies to non-recreational use of roadways for vehicle access as it applies to recreational use of other private noncoastal property. The Court reviewed the explicit language, legislative concerns, general legislative scheme and legislative history of the statute, and concluded that “section 1009, subdivision (b) contains no implicit exception for non-recreational use of roadways.” In so holding, the Court disapproved Hanshaw, Pulido and Bustillos to the extent they are inconsistent with the Court’s opinion.

So at the end of the litigation, the Supreme Court essentially followed the testimony of the “matriarch of Henry Ridge.” Ms. Stewart testified that she was unaware of facts that would show that the general public had used Henry Ridge Motorway, over the adjacent road, to access a public road. She added: “I don’t know anybody in their right mind that would even try to go that way.” Apparently, everyone ended the case in their right mind.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Glen C. Hansen of Abbott & Kindermann, Inc., will present an update on recent developments in resolving easement, boundary, and implied public dedication disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating, Interpreting, and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Establishing Equitable Easements
  • When Implied Dedications of Public Easements Exist, and When They Don’t.

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc., and a long-time practitioner in real estate and land use law.

Cost $85.00

Location and Time

Roseville – October 13, 2017, 8:00 a.m.-11:45 a.m.  (To Register CLICK HERE)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

Diane G. Kindermann (2015-2017) and William W. Abbott (2004-2017) were again selected for the Northern California Super Lawyers List in the practice areas of Land Use and Zoning law. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 20 years.


By William W. Abbott

Cinema West, LLC v. Christine Baker 2017 Cal.App. LEXIS 599

As former redevelopment agency properties come back into the marketplace, prospective developers must proceed cautiously to avoid tripping on the State’s prevailing wage law. What appears to be a fair market transaction may include a disguised agency contribution or publically funded construction, thus triggering prevailing wage for the entire development project. Frequently, this obligation does not surface until after the project is under construction.

The City of Hesperia became the successor agency to its redevelopment agency following dissolution by the state legislature. For a number of years, the City sought the development of the first theater complex inside the City limits. Eventually, as the successor agency, the City negotiated a fair market priced sale to Cinema West, LLC, (“Cinema”) to develop a 12-screen complex. As part of the negotiations, the City would construct the parking lot, provide reciprocal easements, develop a water retention system for the theater and parking lot, and construct offsite improvements. The theater operator would sign a 10-year operating covenant for the theater. The documents recited that the developer was providing all the financing for the theater and permits, and that the City was purchasing the operating covenant in the form of a forgivable loan in the amount of $1,546,363. The City also agreed, as part of the consideration for the operating covenant, to the payment of $102,259., to Cinema a sum equal to the purchase price paid by the theater developer for the land. As the project moved forward, construction costs proved to be greater than originally budgeted. The City provided an additional $250,000 in the form of a forgivable loan in exchange for a second operating covenant.

Nearing the end of theater construction, Union Local 477 sought a public works coverage determination by the Director of the Department of Industrial Relations. Following submittal of documents by the City and written arguments by Cinema, the Director concluded that the theater was a public work subject to prevailing wage requirements. This conclusion was reached based upon the City payment of $102,259, the two forgivable loans, and the construction of the parking lot and offsite improvements. Cinema filed a timely appeal. The Director considered the additional evidence and argument, but affirmed its initial decision. The Department then initiated a wage enforcement proceeding. Cinema then filed a writ in superior court and sought injunctive relief against the enforcement proceeding. The superior court ruled in favor of the Department.

On appeal, the Appellate Court also affirmed. Procedurally, Cinema argued that it was entitled to present extra record evidence before the Superior Court. Both the trial court and appellate court rejected this argument, citing the established cases that extra record evidence (that is evidence not presented to the administrative tribunal) can only come in at trial in limited circumstances.

Turning to the merits, Cinema made four arguments (1) private construction is not subject to prevailing wage merely because other related construction is publically funded; (2) mere coordination of two related construction projects does not create a complete integrated “object”; (3) Cinema did not receive public funds or their equivalent; and (4) the construction of the parking lot did not transform the private theater into a public work. Looking at the totality of circumstances, the appellate court concluded that the evidence supported the conclusion that the parking lot construction and theater were interlinked. This evidence included communications by the Cinema to the City describing the City’s contribution along with the approving resolutions referencing the City’s contributions. Other factors weighed in support of finding the requisite relationship between theater and parking lot, including timing of construction, the use of the same contractor and the fact that the theater did not meet the City’s parking requirements without use of the parking lot. The appellate court also considered that the evidence regarding the forgivable loans as reflecting a public subsidy, but eventually concluded that it need not reach that issue.

Given the expansive statutory definition of public works for prevailing wage purposes, developers need to look closely at any transaction which goes beyond a fair market sale.

William W. Abbott is a shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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 William W. Abbott

Begun as a ministry in the 1850’s to help the poorest of poor in East London, the Salvation Army came to the United States in 1880.  As a small part of its overall mission of the salvation of souls ,the Salvation Army developed three farm colonies in the United States: Fort Romie (California), Fort Amity (Colorado) and Fort Herrick (Ohio). Fort Romie, located two miles south-southwest from Soledad, Monterey County, was the first of these colonies.  The objective was to relocate impoverished city dwelling to rural locations where they could enjoy a healthy physical and spiritual lifestyle as farmers.  The Army’s battle cry was to return the landless man to the manless land.

Continue Reading When a Fort is a Home: The Salvation Army, Fort Romie and Connecting Landless Men with Manless Land

By William W. Abbott

One of the more intriguing early settlements in California involves the Polish colony in Anaheim. The story begins in Poland, and centers on a young aspiring actress, Helena Modjeska. Born Helena Opid in 1840, Modjeska at a relatively early age gained great fame and recognition as an actress. Her work as an actress brought her in contact with the prominent literati and liberals of time. At the time, Poland had been partitioned by Russia, Prussia and Austria, and the desire for unification and freedom was met with unbending, brutal responses by the occupiers. By 1875, while Modjeska was secure in both her success as an actress and by marriage to Count Bozenta, her health began to fail. The combination of political uncertainty and health concerns, coupled with their established wealth, gave the actress and her family the option not many others possessed: leaving Poland. California became the eventual destination, with a vision of creating a utopian community, similar to Brook Farm in West Roxbury, Massachusetts, a colony launched in 1840 by Transcendentalists.

Continue Reading Colonies & Settlements: The Polish Colony in Anaheim

By William W. Abbott

Readers may remember our earlier account of the first State of California planned community, Durham, in Butte County, started in 1913.  Apparently pleased with the perceived success in Durham, the State Land Settlement Board embraced a more ambitious goal, this time an 8,000 acre community to be located in the community of Delhi, in Merced County. On the heels of World War I, the legislature expanded the program to specifically serve returning veterans.

Continue Reading An Historic Tale of Two Towns: The State of California as a Planner, Subdivider and Developer Part II