By Katherine J. Hart

In Coronado Cays Homeowners Association v. City of Coronado (2011) ___ Cal. App.4th ___, the City of Coronado (“City”) appealed a trial court’s grant of declaratory relief to the Coronado Cays Homeowners Association (“Association”) regarding the question of whether the City or the Association was required to maintain a berm[1] in the Coronado Cays subdivision canal pursuant to the terms of a special use permit granted in 1968 and a parcel map. In upholding the trial court’s determination, the Court of Appeal, Fourth Appellate District, held that the subdivision map was not ambiguous as to the term “ancillary structures” and that the berm in question did not constitute an “ancillary structure.” Thus, the City, not the Association, was required to maintain the berm.

Background Facts

In 1968, the City approved a special use permit which required the developer of the Coronado Cays subdivision to install concrete bulkheads (i.e., retaining walls) along one lot of the development (Lot 90) for purposes of creating a retaining wall for a 200-foot-wide canal to be dredged on the adjacent lot (Lot C). Lot C was dredged into the trapezoidal waterway (canal) as planned and a berm made of soil was created for lateral support of the bulkheads. Subsequently, Lot C, the canal, was dedicated to the City for public recreational use. The Association acquired the developer’s interest in the subdivision. It was agreed that the Association would maintain the bulkheads and City would maintain the canal.

Years later, in 1986, bulkheads in another part of the Coronado Cays failed because the supporting beam had eroded. Despite evidence that the berm in question was stable and the bulkheads were not in jeopardy of failing, the Association discovered that the top of the berm in question had been lowered about one foot over 10 years, and wanted the City to redredge the canal to its original depth and raise the level of the berm with the tailings. Thus, the question arose as to which party was responsible for maintaining the berm in which the bulkheads were imbedded. The Association filed this action for declaratory relief to ascertain that very question: Was the City required to maintain the berm since it was located in the canal?


The City first argued that the trial court wrongly granted the Association declaratory relief since there was no “actual controversy” between the parties regarding the stability of the berm and bulkheads. The Court of Appeal rejected this argument. It noted that one of the tests of the right to bring a declaratory relief action is the necessity of present adjudication as a guide for future conduct, and that in the instance before it, it was unclear which party had the responsibility to monitor and maintain the berm, and thus, without the Court’s guidance, the parties’ roles would remain unclear.

Next, the Court held that the City, as a matter of law, was required by the special use permit to maintain the berm because the berm was located within the canal dedicated to the City, even though the berm was within an easement reserved by the Association. The City then asserted the defense that ordinarily the owner of an easement (here the Association) is required to keep the easement in repair. Notwithstanding, the Court determined that the special permit rebutted the presumption that the developer (now the Association) assumed the responsibility for maintaining the berm. The City relied upon Map No. 6181, which stated that the developer (now the Association) was responsible for maintaining “docks, ramps, decks, landings, and ancillary structures for bulkheads….” and that the court erred in determining a berm was not an ancillary structure.

The Court outlined the two-step process to ascertain when parol evidence (i.e., the map) should be admitted. First, a court must receive the evidence to determine whether the language of the written document is reasonably susceptible to the interpretation of the party proffering the evidence. Second, if based on the extrinsic evidence the language is reasonably susceptible to the meaning urged, a court may admit the evidence and interpret the document. In this case, the Court found that the map was not ambiguous just because it did not define the term “ancillary structures,” and further that a berm was “not a structure” within the common meaning of the term.

Finally, the City urged that the Court must construe the language of the map in the City’s favor pursuant to Civil Code section 1069. But the Court noted that a grant need only be interpreted in favor of the City if there is an ambiguity in the grant or reservation, which it did not find in this case.

[1]A berm is a man-made mound of dirt that separates two or more areas.

Katherine J. Hart is an 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, nor 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.