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

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.
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 Cori M. Badgley

In Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, the California Coastal Commission (“Commission”) imposed a $5.3 million mitigation fee on a homeowner’s association that needed a permit to build a seawall to protect residences that would otherwise fall into the ocean. Attempting to find relief from the fee, the homeowner’s association sued the Commission, but the court denied all relief and upheld the fee.
Continue Reading A Detailed Record Can Make All the Difference: Court Upholds Commission’s Imposition of $5.3 Million Fee

By Cori M. Badgley and Kate J. Hart

In an attempt to invalidate or, at a minimum, get damages for the California Coastal Commission’s (“Commission”) denial of a coastal development permit, Charles A. Pratt Construction Co., Inc. (“Pratt”) brought suit against the Commission, claiming that the Commission’s decision violated Pratt’s vested right to develop its property and, in the alternative, if the decision was valid, the Commission committed a regulatory taking by denying the coastal development permit. In Charles A. Pratt Construction Co., Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, the Court of Appeal, Second Appellate District upheld the Commission’s denial of the permit and dismissed Pratt’s regulatory takings claim for lack of ripeness.
Continue Reading The Development Blues: Property Lies Undeveloped for 30 Years and Counting

By Glen Hansen

Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.
Continue Reading DON’T GO THERE! Inquiring into the Thought Processes of Government Officials

By Janell M. Bogue

You wouldn’t think that a simple, wooden fence would create enough controversy to fuel an extensive administrative process, a trial court case, and an appeal to the California Court of Appeal, Second Appellate District. However, in the case of Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2008) 2008 Cal.App.Lexis 501, that is exactly what happened.
Continue Reading Good Fences Make Good Neighbors but Bad Fences Make Appellate Opinions

By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline. The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.
Continue Reading Open Hostility: Validating Prescriptive Easements

By Janell M. Bogue

In the case of Citizens for Responsible and Open Government v. City of Grand Terrace (February 21, 2008) 2008 Cal.App.Lexis 359 the California Court of Appeal, Fourth Appellate District held that a mitigated negative declaration (“MND”) approved for a senior residential project was inadequate under CEQA. In doing so, the court discussed density calculations and the weighing of evidence under the fair argument test.
Continue Reading Court of Appeal Applies Fair Argument Test in Appeal of Senior Housing Project

By Cori Badgley

In 2004, a jury awarded Adam Bros. Farming, Inc. (“ABFI”) over $5 million in civil damages. The trial court assessed these damages against individual County officials as well as the County of Santa Barbara (“County”). On March 4, 2008, the Court of Appeal, Second Appellate District overturned the award of damages in an unpublished opinion, Adam Bros. Farming, Inc. v. County of Santa Barbara (Docket No. B180880, 2008). The appellate court held that Adam Bros. Farming, Inc. lacked standing to bring its constitutional claims and the claims were barred by the statute of limitations. Therefore, the civil damages had to be overturned.
Continue Reading $5 Million Judgment Against Santa Barbara County Overturned by Appellate Court