Articles Posted in Real Estate & Property Law

by
Plaintiffs challenged a Monterey County ordinance limiting to four the number of roosters that can be kept on a property without a permit. A permit application must include a plan describing the “method and frequency of manure and other solid waste removal,” and “such other information that the Animal Control Officer may deem necessary.” A permit cannot be issued to anyone who has a criminal conviction for illegal cockfighting or other crime of animal cruelty. The ordinance includes standards, such as maintaining structurally sound pens that protect roosters from cold and are properly cleaned and ventilated and includes exemptions for poultry operations; members of a recognized organization that promotes the breeding of poultry for show or sale; minors who keep roosters for an educational purpose; and minors who keep roosters for a Future Farmers of America project or 4-H project. The court of appeal upheld the ordinance, rejecting arguments that it takes property without compensation in violation of the Fifth Amendment; infringes on Congress’ authority to regulate interstate commerce; violates the Equal Protection Clause; is a prohibited bill of attainder; and violates the rights to privacy and to possess property guaranteed by the California Constitution. View "Perez v. County of Monterey" on Justia Law

by
The city approved the agreement with Pacific Gas and Electric Company (PG&E), authorizing the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report explains that this is a Major Tree Removal Project, requiring a tree removal permit and mitigation for the removed trees. PG&E was willing to provide requested information and mitigation but claimed to be exempt from obtaining any discretionary permits. “To ensure that the [community pipeline safety initiative] can move forward and to protect the public safety, PG&E and City staff have agreed to process the ... project under [Code] section 6-1705(b)(S). This section allows the city to allow removal of a protected tree ‘to protect the health, safety and general welfare of the community.’“ Opponents sued, alleging violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), the planning and zoning law, the general plan, and the tree ordinance, and the due process rights of the petitioners by failing to provide sufficient notice of the hearing. PG&E argued that the suit was barred by Government Code 65009(c)(1)(E), which requires an action challenging a decision regarding a zoning permit to be filed and served within 90 days of the decision. The original petition was timely filed but not served until after the deadline. The trial court dismissed without leave to amend. The court of appeal affirmed as to the ordinance claims but reversed with respect to CEQA. View "Save Lafayette Trees v. City of Lafayette" on Justia Law

by
DFS is in the business of duty-free sales at airports and holds an exclusive lease and concession to sell merchandise duty-free in the San Francisco International Airport (SFO) international terminal. AN extension of DFS’s lease agreement triggered a reassessment; the Assessor valued DFS’s possessory interest in the leased properties using the income approach. The parties disputed the income stream used by the Assessor in applying that methodology, which was the full amount of the Minimum Annual Guaranteed rent (MAG). For 2011 this was $26.4 million. Capitalizing that entire amount, and after deducting certain expenses and applying a discount factor, the Assessor arrived at a present value for the possessory interest of $59 million. DFS challenged the assessment under Revenue and Taxation Code provisions that bar the taxation of intangible rights. Section 110(d)(3) expressly exempts from taxation the exclusive right to operate a concession. DFS argued that the MAG was consideration not only for its taxable use and occupancy of space but also for the valuable but non-taxable exclusive concession rights it obtained under the agreement to sell merchandise on a duty-free basis. The court of appeal agreed and reversed. Exclusivity is essential to the business and DFS was willing to pay extra money for it and would have no interest in being at SFO without it. View "DFS Group, L.P. v. County of San Mateo" on Justia Law

by
Berkeley approved the construction of three houses on adjacent parcels in the Berkeley Hills, citing the California Environmental Quality Act (CEQA), Pub. Resources Code, 21000 exemption for “up to three single-family residences” in urbanized areas. Plaintiffs opposed the approval, citing the “location” exception: “a project that is ordinarily insignificant in its impact ... may in a particularly sensitive environment be significant … where the project may impact on an environmental resource of hazardous or critical concern where designated.” The projects were within the Alquist-Priolo Earthquake Fault Zone and in a potential earthquake-induced landslide area mapped by the California Geologic Survey. The court of appeal affirmed the denial of the petition for writ of mandate. Giving meaning to the phrase “environmental resource,” the location exception was not intended to cover all areas subject to such potential natural disasters as a matter of law; it applies “where the project may impact on an environmental resource.” The exception reflects a concern with the effect of the project on the environment, not the impact of existing environmental conditions (such as seismic and landslide risks) on the project or future residents Plaintiffs produced no evidence that construction of the three proposed residences would exacerbate existing hazardous conditions or harm the environment View "Berkeley Hills Watershed Coalition v. Berkeley" on Justia Law

by
The parties own neighboring parcels in Mendocino County. The scenic sand dunes of MacKerricher State Park are behind the parcels. Respondents historically accessed the dunes via a path that runs along the parties’ property line, then crosses appellant’s property, and then crosses the parcel of another neighbor. In 2015, appellant erected a fence that blocked respondents’ access to the dunes via the property line path. Respondents sued.. The trial court granted respondents a prescriptive easement allowing them and their invitees (including Airbnb guests) to use the path. The court of appeal affirmed, rejecting appellant’s argument that the easement is a public easement prohibited by Civil Code section 1009, which provides that, because it is “in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use,” and because owners who allow “members of the public to use, enjoy or pass over their property for recreational purposes” risk loss of the property rights, “no use of such property by the public .... shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication.” View "Ditzian v. Unger" on Justia Law

by
Loren Prout filed an inverse condemnation action alleging Department of Transportation (Caltrans) violated the Fifth Amendment in 2010 by physically occupying without compensation a long, narrow strip of Prout’s land fronting California Highway 12, to make highway improvements. The land taken was a 1.31-acre strip, 20 feet wide and about 6,095 feet long. Caltrans cross-complained for breach of contract, promissory estoppel, and specific performance, alleging Prout agreed to dedicate the strip by deed for highway purposes 20 years earlier when he obtained an encroachment permit for a subdivision he was developing. Prout’s subdivision map stated the strip of land fronting Highway 12, shown by hash marks on the map, was “IN THE PROCESS OF BEING DEEDED TO CALTRANS FOR HIGHWAY PURPOSES.” No deed was ever signed or recorded. After a bench trial on the bifurcated issue of liability, the trial court found Caltrans validly accepted the offer of dedication by physically occupying the strip for its highway improvements, and the court awarded specific performance on Caltrans’s cross-complaint and ordered Prout to execute a deed. On appeal, Prout claims the evidence is insufficient to support the trial court’s finding that he agreed to dedicate the entire strip of land, as opposed to just a small area needed to connect the subdivision’s private road to the state highway. The Court of Appeal concluded Prout’s challenge was barred by his failure to file a timely petition for writ of mandamus, and his inverse condemnation claim failed because substantial evidence supported the trial court’s finding that Prout made an offer to dedicate the entire strip of land in 1990 and did not revoke the offer before Caltrans accepted it by physically using the strip to make highway improvements in 2010-2011. View "Prout v. Dept. of Transportation" on Justia Law

by
Plaintiffs, opposed the development of an eight-unit multifamily residential building in a high-density residential district, challenged a resolution granting demolition and design review permits. They claimed the city violated the California Environmental Quality Act (CEQA; Govt. Code, 21000) because the city council failed to consider aspects of the project other than design review and that the city abused its discretion under CEQA by approving the demolition permit and design review without requiring an environmental impact report (EIR) based on its determination that the proposed project met the requirements for a Class 32 (infill) categorical exemption under CEQA Guidelines. The court of appeal affirmed. The city council properly limited the scope of its review as required by the ordinance, did not abdicate its duty to act, and did not delegate its ultimate duty to the planning commission. St. Helena's Municipal Code did not require the city council to consider the environmental consequences of a multi-family project in an HR district Because of that lack of any discretion to address environmental effects, it was unnecessary to rely on the Class 32 exemption. View "McCorkle Eastside Neighborhood Group v. St. Helena" on Justia Law

by
Tenant filed suit against landlord and others after landlord rejected tenant's offer to purchase the building tenant rented for his audio recording business. Landlord ultimately sold the building to a third party because the offer was for considerably more money. The Court of Appeal affirmed the dismissal of the action and held that a right of first refusal is not an essential term that carries forward into a holdover tenancy unless the parties so indicate. In this case, there was no such indication and tenant's alternative theories for enforcing the right to first refusal lacked merit. View "Smyth v. Berman" on Justia Law

by
After defendants erected a wall across the Stockdale Estates segment of a pedestrian path, a group of current and former Amberton residents asked the superior court to enjoin defendants from impeding public use of the path. Plaintiffs argued that a common law dedication of the Stockdale Estates segment was both implied in fact and implied in law. The superior court issued a permanent injunction and then granted plaintiffs attorneys' fees. During the pendency of the appeal, the California Supreme Court decided Scher v. Burke, (2017) 3 Cal.5th 136, 147, which held that Civil Code section 1009, subdivision (b), prohibits reliance on post-1972 public use to support a claim of implied dedication. Although the parties agreed that Scher abrogated the superior court's finding of an implied-in-law dedication, plaintiffs argued that the judgment must be upheld. The Court of Appeal reversed both the judgment and the postjudgment order awarding fees, holding that section 1009, subdivision (b), generally prohibits implied-in-fact dedications of private noncoastal property and the superior court's order awarding plaintiffs attorneys' fees pursuant to Code of Civil Procedure section 1021.5 must be reversed. View "Mikkelsen v. Hansen" on Justia Law

by
In 2012, the Campbell Union School District (CUSD) Governing Board enacted a fee on new residential development under Education Code section 17620. The fee, $2.24 per square foot on new residential construction, was based on a study that projected that “it will cost the District an average of $22,039 to house each additional student in new facilities.” This figure was based on a projected $12.8 million cost to build a new 600-student elementary school and a projected $24.4 million cost to build a new 1,000-student middle school. SummerHill owns a 110-unit residential development project in Santa Clara, within CUSD’s boundaries. In 2012 and 2013, SummerHill tendered to CUSD under protest development fees of $499,976.96. The trial court invalidated the fee and ordered a refund of SummerHill’s fees. The court of appeal affirmed, holding that the fee study did not contain the data required to properly calculate a development fee; it failed to quantify the expected amount of new development or the number of new students it would generate, did not identify the type of facilities that would be necessary to accommodate those new students, and failed to assess the costs associated with those facilities. View "SummerHill Winchester LLC v. Campbell Union School District" on Justia Law