• Land Use Attorney Capitola

CASE UPDATE: Coastal Permit Condition Requiring Beach/Coastal Access Easement Lacked Rational Nexus With Inland Construction Project.

In Bowman v. California Coastal Commission, (2014) —Cal.Rptr.3d– (2014 WL 5390057), the court held that the Coastal Commission and the trial court erred in imposing a lateral coastal access easement as a condition of approval of a coastal development permit (CDP) for the reconstruction of a barn, the remodel of a house, and installation of a new septic system.  This case involved two, successive CDP applications to make certain improvements at a single, 400-acre coastal property in San Luis Obispo County.  

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CASE UPDATE: HOA Must Accept Partial Payments Toward Delinquent Assessments.

In Huntington Continental Townhouse Assoc., Inc. v. Miner, (2014) 230 Cal.App.4th 590, the court held that a homeowners’ association (HOA) must accept an owner’s partial payment toward a delinquent HOA assessment balance. In this case, the owner (Miner), stopped making monthly assessment payments and eventually incurred a balance of approximately $6,400.00 in assessments, penalties, fees and costs.  The HOA imposed a lien against the owner’s property, had the lien recorded, and then filed a lawsuit to foreclose on the lien.

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NEW CEQA CASES: Greenhouse Gas Emissions, “Piecemealing” And Other Issues.

In Sierra Club v. County of San Diego, (2014) WL 6657169, the court held that the County violated CEQA by failing to implement measures to mitigate greenhouse gas (“GHG”) emissions that would occur as a result of the County’s 2011 General Plan Update.

The County adopted its General Plan Update based on a Program Environmental Impact Report (“PEIR”). The PEIR included Mitigation Measure CC-1.2, under which the County committed to preparing a climate action plan (“CAP”) with “more detailed greenhouse gas emissions reductions targets and deadlines” and “comprehensive and enforceable GHG emissions reduction measures that will achieve” specified quantities of GHG reductions by the year 2020.  However, the court held that the CAP that the County later adopted did not meet the requirements of Mitigation Measure CC-1.2.  It found that the County admitted that the CAP would not ensure the required reductions, that many of the emissions reduction measures were unfunded, that the County was not making meaningful efforts to implement or fund transit-related measures, and that the CAP had no deadlines. 

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CASE UPDATE: Deficiency Judgment Not Allowed Because Bank Failed To Include All Properties Securing Loan In Judicial Foreclosure Sale.

In First California Bank v. McDonald, (2014) 2014 WL 6675937, the court held that a bank/ secured lender could not maintain an action for a deficiency judgment because in the underlying judicial foreclosure action the bank only included one of two properties securing the loan.

The bank made the subject loan to a husband and wife secured by two properties, the “Wasco” property, which was community property, and the “Shafter” property, which was the wife’s sole and separate property. After the husband died, the loan went into default.  The bank and the wife agreed to a private sale of the parcel that was her separate property (Shafter), and then the bank filed a lawsuit to foreclose on the remaining parcel and obtain a deficiency judgment.  The trial court granted a decree of judicial foreclosure stating that the bank was entitled to obtain a deficiency judgment against the representatives of the husband’s estate, but the court of appeal reversed. 

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CASE UPDATE: Court Affirms Dismissal Of Quiet Title Claim Even Though Plaintiff’s Name Was Fraudulently Omitted From Prior Deed.

In Lin v. Coronado (2014), 2014 WL 6398772, the court dismissed the plaintiff’s quiet title claim finding that a change that was made to a revised version of a deed that omitted plaintiff’s name was immaterial, and thus, no basis to void the altered deed.  The plaintiff, Helen Lin, alleged that she contributed $150,000 toward a $250,000 purchase of property at a trustee sale with two other partners, River Forest and Elevation Investments; that the original version of the trustee’s deed named the transferees as “RIVER FOREST FINANCIAL LLC 75%, ELEVATION INVESTMENTS 25% HELEN LIN”; that the version of the trust deed that was subsequently recorded was altered to omit HELEN LIN from the named transferees (unbeknownst to Lin); that River Forest then quitclaimed its entire interest in the property to Elevation, which then sold the property to the defendant in this case, Mireya Coronado.

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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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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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