• Land Use Attorney Capitola

CASE UPDATE: Court Rules That A Water Retention Basin At Northstar Ski Resort That Is Causing Water Damage To Nearby Buildings Is A Nuisance, Granting An Injunction..

In Aspen Grove Condominium Assoc. v. CNL Income Northstar LLC, (2014) 231 Cal.App.4th 53, the court of appeal affirmed a trial court order requiring the owners of the Northstar Ski Resort to remove a 20,000 cubic foot water retention basin.  Northstar constructed the basin as part of a major expansion of buildings, driveways and parking lots.  Despite the fact that Northstar had numerous other areas of its property on which to build the basin, Northstar the basis along a lower boundary if its property, close to neighboring buildings, and apparently without sufficient geotechnical or soils analyses.

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CASE UPDATE: Court Affirms Reduced Attorneys’ Fees Award in CEQA Case Involving MND For Community Center..

In Save Our Uniquely Rural Community Environment v. County San Bernardino, (2015) 235 Cal.App.4th 1179, the trial court granted an environmental group’s petition for a writ of mandate concerning  a proposed community center and mosque, for which the county planning board had adopted a mitigated negative declaration (MND) and issued a conditional use permit (CUP), and the court ordered the MND and CUP be set aside solely for purposes of obtaining further CEQA review on the single issue of waste water treatment. 

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CASE UPDATE: California Supreme Court Clarifies “Unusual Circumstances” Exception To CEQA Exemptions In Case Involving Huge House Constructed On Steep Slope In Berkeley.

In Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, California Supreme Court held that the “unusual circumstances” exception to CEQA’s categorical exemptions literally requires unusual circumstances, and that agency decisions as to whether or not unusual circumstances exist are reviewed under the deferential substantial evidence standard.

In this case, the City of Berkeley approved a project to construct a 6,458 square foot house with an attached 3,394 square foot, 10-car garage on a wooded, steep slope in a residential neighborhood without an environmental impact report or negative declaration.  In so doing, the City found that the project was categorically exempt from CEQA under the “new, small structures” exemption and the “in-fill development” exemption.  The trial court affirmed the City’s approval.  The court of appeal then reversed the trial court and invalidated the City’s approval, relying on the “usual circumstances” exception, which provides:

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CASE UPDATE: Private Property Owner Liable To County, Under Reasonableness Test, For Failing To Maintain Storm Drainage Channel Through Its Property In City of Richmond.

In Contra Costa County v. Pinole Point Properties, LLC (2015) 2015 WL 1544978, the court affirmed the trial court’s decision that a downstream property owner was liable for damages caused by its failure to maintain a drainage channel that crossed its property.  The subject property was owned by Pinole Point Properties and located along San Pablo Bay in the City of Richmond.  The subject property was undeveloped except for two main railroad berms and a few large drainage pipes under the berms, and the property contained an 8-foot wide by 6-foot deep drainage channel that flowed to the Bay.  Pinole Point Properties caused the drainage channel to become obstructed and nonfunctional by failing to maintain it and keep it clear of silt, vegetation and debris since it purposed the property 30 years ago.  (The prior owner of the property did do such maintenance.)  As a result, a large upstream storm drain pipe installed by Contra Costa County did not function as designed and the County was required to spend large sums of money in emergency flood protection efforts to protect a nearby residential neighborhood during large storm events.

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CASE UPDATE: Court Rejects Strict Interpretation Of “Merger Doctrine” In Sonoma Winery Nondisclosure Case.

In Ram’s Gate Winery, LLC v. Roche, (2015) 2015 WL 1570193, the court of appeal reversed the trial court’s summary adjudication judgment and held that there were disputed issues of fact involved in a real estate non-disclosure case.  Plaintiffs purchased property in Sonoma County upon which they intended to build a new winery.  After the close of escrow, the buyers first discovered an active fault trace on the property that substantially increased their cost of development, and they sued the sellers for fraud, negligent misrepresentation and breach of contract for failing to disclose the fault. 

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CASE UPDATE: Court Holds That Public Recreational Use Exception Did Not Apply As A Defense To A Private Prescriptive Easement.

In Pulido v. Pereira, (2015) 234 Cal.App.4th 1246, the court of appeal upheld the trial court’s determination that a prescriptive easement existed and that the public recreation exception (Civ. Code § 1009), did not apply.  Pulido purchased some undeveloped property in Calaveras County.  For six years, the Pulido always accessed the property via a road called Quartz Hill Drive (which was a private road owned by Pereira), by disconnecting a chain strung between two posts at the entrance to the road.  One day, Pereira installed a gate and lock across the road entrance and told Pulido that he could no longer use the road.  Unfortunately, locking the gate affected several other neighbors who also used the road to access their properties, and the neighbors sued.  The trial court held that the neighbors had a prescriptive easement, satisfying the elements that the use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years.

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CASE UPDATE: Defrauded Home Buyer Entitled To Full Rescission Notwithstanding Complications Involved In Unwinding The Sale Several Years Later.

In Wong v. Stoler, (2015) 237 Cal.App.4th 1375, the court of appeal reversed the trial court judgment denying rescission remedies to defrauded home buyers.  The buyers purchased a hillside home for $2.35 million. The sellers failed to disclose and actively concealed the facts that: the home was on a private sewer system that went down a steep ravine through public open space; that the property was subject to an informal homeowners’ association to maintain the sewer system; and that the local government agency had issued a notice of abatement to fix leaks in the sewer system.  Plaintiffs’ experts testified that the sewer system was susceptible to damage, and that system failure was inevitable and would cost $500k-$600k to replace two of the lines.

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CASE UPDATE: Court Rejects “Equitable Easement” Claim

Court rejects property owner’s claim that he had an “Equitable Easement” to use an improved patio area on his neighbor’s property and remanded the case back to the trial court to adjudicate the plaintiff’s prescriptive easement claim.

In Shoen v. Zacarias, (2015) 237 Cal.App.4th 16, the court of appeal overturned the trial court and rejected plaintiff’s claim that she had an “equitable easement” to use a patio area on her neighbor’s property that was only accessible from the plaintiff’s property.   The equitable easement doctrine evolved to give courts discretion to balance hardships in neighbor disputes over the use of property, and it can be used when a party cannot satisfy all the elements for an actual or prescriptive easement.  The court summarized the current rule as follows:

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CASE UPDATE: Borrower Is Not Required To Tender Balance Of Loan As A Condition Of Filing Suit For Violations Of Pre-Foreclosure Sale Loan Modification Requirements Set Forth In The “Homeowner’s Bill Of Rights”.

In Valbuena v. Ocwen Loan Servicing, LLC, (2015) 237 Cal.App.4th 1267, the court of appeal held that the Homeowner’s Bill of Rights (“HBOR”, Civil Code §§ 2920.5 et al.), did not require a defaulting debtor to tender the loan balance as a condition of filing suit for violations of the pre-foreclosure sale loan modification requirements contained in the HBOR.

This was a “dual tracking” case.  Dual tracking occurs when a bank forecloses on a loan while it is in the process of negotiating with the borrower to avoid foreclosure, and it is generally prohibited by the HBOR.  (Civil Code §§ 2923.6, 2924.12.)  The HBOR provides that a mortgage servicer must offer the borrower a loan modification or workout plan, and that the loan servicer it shall not record a notice of default or conduct a trustee’s sale while the loan modification application is pending — and otherwise not until the loan servicer makes a written determination that the borrower is not eligible and the 30 day period to appeal that determination has expired.

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CASE UPDATE: California Supreme Court Upholds City Of San Jose’s Affordable Housing / Inclusionary Housing / Affordable Housing Ordinance.

In California Building Industry Association v. City of San Jose (2015), the California Supreme Court affirmed the court of appeal’s ruling and upheld the City of San Jose’s inclusionary housing ordinance.  In order to address state policies and goals intended to encourage more affordable housing units, hundreds of  California municipalities have adopted what are commonly referred to as “inclusionary zoning”,  “inclusionary housing” or “affordable housing” programs, which typically require or encourage developers to set aside a certain percentage of housing units in new or rehabilitated projects for low- and moderate-income residents.

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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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