December 2008

By Glen Hansen

In Robert Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, the Court of Appeal, Fourth Appellate District, emphasized that boards of directors of homeowners associations do not have the discretion to ignore the express requirements of the conditions, covenants and restrictions (“CC&Rs”) for the development, despite the “judicial deference rule” adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowner’s Assn. (1999) 21 Cal.4th 249.

Continue Reading Court to Homeowner Association Board: No Judicial Deference Just Because You Like Palm Trees

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.

Continue Reading Keep Your Hooves off My Easement! Exclusive Easement Prevents Servient Landowner from Using Driveway

By Glen Hansen

In Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, the Court of Appeal, Fourth Appellate District addressed some of procedural traps that can befall unwary litigants who seek to bring CEQA challenges to local land use decisions including subdivision approval.

Continue Reading CEQA Practioners Beware: Your Petition Challenging Approval Of A Subdivision Under CEQA May Be Summarily Dismissed If You Don’t Comply With The Subdivision Map Act

By William Abbott

Not one to shy away from controversy, the Air Resources Board (“ARB” or “Board”), finally launched California into a new era of thinking by adopting the Climate Change Scoping Plan (“Plan”). The sacred cows were not spared as the Board took swift action to push forward the implementation of Greenhouse Gas (“GHG”) reduction strategies called for in AB 32.

Continue Reading ARB Adopts Scoping Plan Implementing AB 32

By Michelle Engel

The Air Resources Board (“ARB” or “Board”) has their hands full. A question and answer session, with more questions than answers, commenced on December 9, when the ARB Staff Project Team held their second public meeting to discuss the development of recommended approaches for setting thresholds for greenhouse gases (“GHG”) under the California Environmental Quality Act (“CEQA”).   The task assigned to ARB has been criticized as being “impossible to achieve” given the lack of experience the ARB Staff has with local government and in dealing with CEQA.

Continue Reading Update on ARB Guidance on CEQA Thresholds: One Plan, Many Voices, Dissidents Abound

By Michelle Engel

The Air Resources Board (“ARB” or “Board”) finds itself at ground zero of California’s strategy to address climate change. The Climate Change Proposed Scoping Plan (“Plan”), dated October 2008, has been praised and panned and with the guiding philosophy that you haven’t done your job unless you make everyone unhappy, perhaps the Plan is close to the mark.

Continue Reading ARB in the Hot Seat on Climate Change: On Thursday, December 11, the Board is Scheduled to Take Action on the Climate Change Proposed Scoping Plan

By Leslie Walker and Nathan Jones

The following case exemplifies that a developer cannot instigate litigation attacking a proposed ordinance until a municipal government has passed the ordinance in question. The matter of Stonehouse Homes, LLC. v. City of Sierra Madre (2008) 167 Cal.App.4th 531, more broadly holds that to maintain a declaratory relief action, a plaintiff must be able to demonstrate a present conflict in addition to showing the existence of tangible injury.

Continue Reading Putting The Cart Before the Horse – Developer Cannot Pursue Declaratory Judgment Before City Council Passes Final Housing Ordinance

By Leslie Walker and Nathan Jones

A recent case published by the Court of Appeal, Third Appellate District has struck down a decision by the California Fish and Game Commission (“Commission”) to deny listing the California tiger salamander (“salamander”) as a candidate species for listing under the California Endangered Species Act (“CESA”). In Center for Biological Diversity v. California Fish and Game Commission (2008) 166 Cal.App.4th 597, the court ruled that the Commission must accept a listing petition of a candidate species if the information would “lead a reasonable person to conclude there is a substantial possibility” that the species could be listed. Placing a species on the candidate list triggers a review by the Department of Fish and Game (“DFG”) to determine whether permanent listing under the CESA is required.

Continue Reading Too Much Information to Erase Doubt: Appellate Court Rules California Tiger Salamander Must Be Considered A Candidate Species under California Endangered Species Act

On January 21 and January 22, 2009, Abbott & Kindermann, LLP will presents 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. Water quality, water supply, wetlands issues, endangered species and climate change will also be covered. The focus will be on recent developments in case law, statutes and administrative regulations, and how these changes impact your daily business practices. A comprehensive written outline will be provided and there will be ample opportunity for questions and answers.

For the first time, Abbott & Kindermann, LLP will be presenting its annual program at two locations, Sacramento and now Modesto. Details for both seminars are below. We look forward to seeing you there.  


First Ever – Modesto Conference

  • Date: Wednesday, January 21, 2009
  • 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

  • Date: Thursday, January 22, 2009
  • Location: Sacramento Radisson, 500 Leisure Lane
  • 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 credits are available.

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