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.

Continue Reading Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District

Bill Abbott has been recognized again by the publishers of Law & Politics and San Francisco Magazine as a leading practitioner of land use law in Northern California. Bill has been selected each year from 2004-2008 based upon peer review by northern California attorneys. More information can be found at the superlawyers website.

By Cori Badgley

Generally, when a plaintiff challenges the action of a government agency, the plaintiff has the burden to overcome the presumption that the government agency acted lawfully. In regards to special assessments falling within the protections of Proposition 218, the burden shifts. When a plaintiff challenges a special assessment, the government agency has the burden to prove that it acted lawfully, and the court reviews the agency’s decision de novo.

Continue Reading California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218

By The Attorneys of Abbott & Kindermann, LLP

Readers of the Land Use Law Blog know that we host an annual land use update; the most recent on January 24, 2008. At that event, we review the most important developments in land use, environmental, and real estate law from the previous year. Our next annual update is planned for January 22, 2009 and more details will be forthcoming. 

This year, we are also providing a mid-year update on the blog, covering the most significant developments from the first half of this year. Below, you’ll see a list of cases and events that we have chosen to highlight from the areas of CEQA, the Subdivision Map Act, the Clean Water Act, global warming, and wetlands. Below each of these items is a link to a written analysis on the topic. Additionally, and new for this year, there is also a link to an audio file (mp3) with new commentary by the firm’s attorneys. This commentary contains our view of the most important points and lessons as well as practice tips. 

Since this format is new, please let us know that you found it useful and valuable by emailing us at blog@aklandlaw.com. Any feedback is welcome.

To download the audio commentary, right click on the link and select “Save Target As”. Save the file to your desktop or the folder of your choosing, and play it using a media player such as Windows Media Player or Winamp. Alternatively, you can listen to the file on your computer by clicking on the audio commentary link. If you have further questions, please email us at blog@aklandlaw.com.

Continue Reading Abbott & Kindermann Land Use Law Blog 2008 Mid-Year Review

By Leslie Walker

For the general public, the most exciting events so far this year on the climate change front have been at the national level. The Secretary of the Interior announced that the Polar Bear is a threatened species under the Endangered Species Act (16 U.S.C. § 1531 et seq.) because reduced sea ice coverage threatens its habitat; and Congress hotly debated, and then rejected, a bill to reduce greenhouse gas emissions to 66% below 2005 levels by 2050.

Continue Reading Mid Year Heat Up: Climate Change January-July 2008

By Leslie Z. Walker and William W. Abbott

The California Legislature borrowed a trick from California’s last economic downturn to assist struggling homebuilders. On July 15, 2008, Governor Schwarzenegger signed into law Senate Bill 1185 (Chapter 124, Statutes 2008), which, similar to previous legislation passed in the mid 1990’s (Gov. Code, §§ 66452.11 and 66452.13) extends the life of approved tentative subdivision maps.

Continue Reading Senate Bill 1185: Legislature Puts Time on the Side of Tentative Subdivision and Parcel Maps, But Drafting Error May Trigger Follow-Up Legislation

By Cori M. Badgley

In St. Vincent’s School for Boys v. City of San Rafael (2008) 161 Cal.App.4th 989, the court addressed various issues relating to the City of San Rafael’s (“City”) approval of a new general plan. The court also addressed a claim brought by the City against St. Vincent’s School for Boys (“St. Vincent’s”) regarding obtaining reasonable costs for record preparation. (This counter-claim was published prior to the rest of the opinion and discussed in a previous article, Be Careful What You Ask For: The Costs Might Be More Than You Can Bear, on our blog.) This article focuses on St. Vincent’s claims concerning the approval of the general plan. The message consistently sent by the court was no matter how much St. Vincent’s would prefer that the general plan amendments be struck down; St. Vincent’s preferences do not matter.

Continue Reading Unwanted, Now Unplanned: City Says “No” to Annexation and Draws the Line on City Expansion

By Leslie Z. Walker

In Muzzy Ranch Co. v. Solano County Land Use Commission (2008) 164 Cal.App.4th 1, decided on June 19, 2008, the appellate court resolved the issues not addressed the first time it reviewed the case. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, reversed by Muzzy Ranch Co. v. Solano County Airport Land Use Commission, (2007) 41 Cal.4th 372.) In this case, the Court of Appeal for the First Appellate District found that the Travis Airport Land Use Compatibility Plan (“TALUP”) was not inconsistent with the Air Force Installation Compatible Use Zone (“AICUZ”) and that the Solano County Airport Land Use Commission (“Commission”) did not abuse its discretion in adopting the TALUP.

Continue Reading The Rest of Muzzy Ranch: ALUCs Not Required to Adopt AICUZ Standards

By Janell M. Bogue

In the case of Coos County Board of County Commissioners v. Kempthorne (June 26, 2008) 2008 U.S.App.Lexis 13475, the United States Court of Appeals for the Ninth Circuit reiterated that the appropriate way for a species to be removed from the protections of the Endangered Species Act (“ESA”) is via a petition for delisting. The court held that there is no mandatory duty imposed upon the U.S. Fish and Wildlife Service (“USFWS”) to delist species through the five year review process. (See 16 U.S.C. § 1533(c)(2).) Continue Reading Ninth Circuit Court of Appeals Confirms That USFWS Has No Ongoing Duty to Remove Endangered Species from List; Appropriate Method is to Petition for Delisting