• Land Use Attorney Capitola

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Miles Dolinger

Miles Dolinger epresents individual, business and public agency clients in a wide range of real estate, land use, and public law matters (transactional and litigation). His office is currently location in Capitola, CA and serves clients in Santa Cruz, Monterey, San Benito and Santa Clara Counties.

California Supreme Court Holds That Landowners Forfeited Their Right to Bring A Lawsuit Challenging Coastal Development Permit Conditions Imposed By The Coastal Commission By Accepting The Permit And Constructing The Project.

In Lynch v. Coastal Commission, 5 Cal.5th 470 (2017), the California Supreme Court held that California residents who began construction of a cliffside seawall and stairway project, for which they had obtained the requisite coastal development and building permits, forfeited their right to challenge conditions imposed on the coastal development.

In 2009, the City of Encinitas (City) granted to Plaintiffs, Frick and Lynch, who were neighbors, permits to build a new seawall and to replace the lower portion of the private wooden stairway leading from their respective homes down to the beach.  Final approval for the project required a coastal development permit from the California Coastal Commission (Commission).

In 2010, while Plaintiffs’ application for a coastal permit was pending, a powerful storm caused the bluff below the Lynch’s home to collapse, and destroyed part of the existing seawall and the lower portion of the existing stairway. 

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California Supreme Court Clarifies That The Restriction On Implied Public Dedications On Non-Coastal Property Set Forth In Civil Code Section 1009(b) Is Not Limited to Recreational Uses Only.

In Scher v. Burke, 3 Cal.5th 136 (2017), the California Supreme Court held that the limitation on implied public dedications set forth in Civil Code section 1009(b) applies to both recreational and nonrecreational uses of non-coastal property.

The issue arose from a California Supreme Court case, Gion v. City of Santa Cruz, (1970) 2 Cal.3d 29, which 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 to the public the right to use the owner’s private property. The consequence of Gion was that fewer property owners allowed the public to use their property because of this new risk that the public would obtain a vested right to use the property in perpetuity.

The California Legislature then responded by adopting Civil Code section 1109.  Section 1109 provides that no use of private property by the public can ever ripen into a vested public right to use the property unless the owner makes an express written offer to dedicate the property, which is formally accepted by a public entity; EXCEPT that, for certain coastal property (e.g., property within 1,000 yards of the mean high tide line), the public can still perfect a vested right by implied dedication UNLESS the property owner posts or publishes a notice that reads, “Right to pass by permission and subject to control of owner.”

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Judge Rules “Game Over” In Dismissing A Homeowner’s Wrongful Foreclosure Suit After Multiple Prior Suits On The Same Issues Were Dismissed.

In Gillies v. JPMorgan Chase Bank, NA, (2017) 7 Cal.App.5th 907, the Second District Court of Appeals of California ruled that the “game is over” for a borrower that remained in possession of property for eight years after defaulting on payment of his mortgage.

In this case, Attorney Douglas Gillies (“Gillies”) appealed the loss of his 4th lawsuit challenging mortgage lender JPMorgan Chase’s (“Chase”) efforts to foreclose on his real property. Each lawsuit contained similar allegations of wrongful foreclosure actions and lack of standing to foreclose on the part of Chase.

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A Tattoo Shop Owner May Challenge City Zoning Restrictions As Being An Unconstitutional Prior Restraint On Protected First Amendment Activity.

In Real v. City of Long Beach, (9th Cir. 2017) 852 F.3d 929, the Ninth Circuit Court of Appeals ruled that the owner of a California tattoo shop, Mr. James Real (“Real”), may rightfully bring an action pursuant to 42 U.S.C. § 1983 alleging that the City of Long Beach’s (“City”) zoning restrictions violate the First Amendment by unreasonably restricting Real’s ability to open and operate a tattoo shop in the City.

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Homeowners Suing A Material Supplier Under California’s Right To Repair Act Must Prove The Supplier Violated A Particular Standard Due To Either Negligence Or Breach Of Contract.

In Acqua Vista Homeowners Assn. v. MWI, Inc., (2017) 7 Cal.App.5th 1129, the California Court of Appeal, Fourth District, clarified the burden of proof that homeowners must satisfy to prove defects in new construction against materials suppliers. The Court held that under SB 800 (the Right to Repair Act, “RRA”, California Civil Code § 895 et seq.), a material supplier may be held liable for defects in new residential construction if the supplier “caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract.”

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A Homeowners Association Is Not Entitled To A Refund Of Sewer Service Fees Paid For Water To Irrigate Common Area Landscaping Despite A Lack Of Connection To Municipal Sewer Service.

In Cape Concord Homeowners Ass’n V. City of Escondido, (2017) 7 Cal. App. 5th 180, the Court of Appeal held that the Homeowners Association (“HOA”) was not entitled to a refund of service fees paid for water used to irrigate common landscape areas despite the fact that the water used for irrigation was not connected to the City of Escondido’s (“City”) sewer system.

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County Boards Of Education Lack Statutory Authority To Issue Zoning Exemptions For Charter Schools

In San Jose Unified School District v. Santa Clara County Office of Education, (6th Dist. 2017) 7 Cal.App.5th 967, the California Court of Appeal for the Sixth District (San Jose) held that county boards of education lack the statutory authority under CA Government Code section 53094 to issue zoning exemptions for charter schools.

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NEW CEQA CASE: “Flexible” Traffic Standards Under General Plan Do Not Establish Level Of Significance Criteria For Purposes of Environmental Analysis.

In East Sacramento Partnership for a Livable City v. City of Sacramento, (2016) 5 Cal.App.5th 281, petitioners challenged the City of East Sacramento’s certification of an EIR for a 336–unit residential development with a community recreation center and three parks on a 48.75–acre site.  The Court of Appeal held that: the EIR adequately disclosed development agreement; the project description was not defective; the EIR did not engage in improper piecemealing; BUT, the EIR provided an inadequate explanation for its conclusion that traffic impacts were not significant.

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NEW CEQA CASE: Court Upholds Environmental Review For New Golden State Warriors Arena Complex In S.F.

In Mission Bay Alliance v. Office of Community Investment and Infrastructure, (2016) 6 Cal.App.5th 160, the court upheld the environmental review conducted for the new basketball arena for the Golden State Warriors (and related development), in what is known as the Mission Bay South Redevelopment Plan Area in San Francisco.  (See http://www.chasecenter.com/.)

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NEW CEQA CASE: NO NEW ENVIRONMENTAL ANALYSIS REQUIRED FOR NEW STREETCAR LOOP.

Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, (2016) 6 Cal.App.5th 1237, involved a CEQA challenge to the San Francisco MUNI’s approval of a project to construct a new streetcar loop in the southeastern part of the City.  MUNI determined that the loop project was part of a larger light rail extension project to provide service to that part of the City.  MUNI determined that no new environmental review was required because the earlier project was approved in 1998 in conjunction with a full environmental impact report, and that this project did not involve any new information, project changes or additional impacts that were not previously addressed (pursuant to Public Resources Code section 21166).  Following the Friends of the College of San Mateo Gardens case (discussed above), the court applied the deferential substantial evidence standard and affirmed MUNI’s decision.

©2017 Miles J. Dolinger

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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