Happy Arbor Day!

A very happy Arbor Day to you.  Hug a tree today. Protect a forest. And speaking of sequestration. (You knew I'd get political, right?) how about some carbon sequestration, instead of more erosion causing, water sucking vineyards?

Tree Clones - What do you think?

What do people think about tree clones?  A group is cloning ancient trees, some are being planted at the College of Marin. See story here: http://news.yahoo.com/group-kicks-off-planting-ancient-tree-clones-091249191.html

Earth Day!

The first Earth Day was in 1970. I was there then, and all I remember was that soon thereafter it was all crunchy granola and living in harmony with the land. Good things, but it did dissipate the "movement" a little. 

By "movement" I mean the leftie radicals, who had spent the last few years fighting for civil rights, women's rights, to end the war, and you know, all that stuff. There was a spate of people (and police) behaving badly, and a lot of burned out activists. Women who couldn't get a boyfriend because the men were all scaredy chickens. Women who channeled their inner lesbian, and recipes for making your own granola on the cover of what had been a hard hitting news outlet for tracking movement actions at home and revolutionary actions abroad. 

Yes, I joined in myself, while lamenting the job I'd just lost writing pithy journalism (I did write a couple of feel good articles about personal growth and the whole "politics is personal" stuff). 

Still, politics is personal, but this is a land use news blog, so my intent was to say Happy Earth Day! Keep it green, keep it clean. Don't be frightened by apocalyptic tales of germs in your reusable cloth grocery bags. people have been carting groceries in bags, baskets and their wide skirts forever. Just another ploy by the plastics industry to get you to keep them in business churning out polluting bags to clog our landfills for the next million years. 

Words to live by - from your friendly neighborhood carbon sequestration system:

New Laws on Neighbor Disputes

This from a friend (and former intern) of mine. All good new stuff:

3 New Laws Affecting Neighbor Disputes

by John Corcoran

Few types of civil disputes can be as heated and rancorous as a neighbor fighting a neighbor.

It’s no wonder neighbors will spend a fortune fighting over a property issue - particularly in Marin.

Real estate in Marin sells at a premium, and one neighbor’s expanded deck or second story can mean a loss of tens of thousands in value for another neighbor.

For these reasons, neighbor disputes is a fertile area of law in Marin county.

In the past year, there were a number of changes in the law which affect common neighbor disputes. Here are three significant developments:

1.  Agreed Boundary Doctrine Requires Actual Agreement.

A common argument in neighbor vs. neighbor disputes is the “agreed boundary doctrine.”

The agreed-boundary doctrine is an exception to the general rule that the boundary between two properties is determined by deeds recorded with the county.

The doctrine provides that when two adjacent owners who are uncertain of the true position of the common boundary between the parcels agree to a common boundary, mark it on the ground or build it up, and occupy each side for a period equal to the statute of limitations, then such line becomes the boundary.

One neighbor may use this argument where a fence is located on another neighbor’s property and they have been making use of the neighbor’s land for some time.

In Martin v. Van Bergen (2012) 209 Cal. App. 4th, 84, Van Bergen argued that a fence marked the agreed-upon boundary. The Court of Appeal found that there was no evidence that the parties had entered into an actual agreement for a boundary along the fence line.  The court also noted that the actual boundary was ascertainable.

The case is significant because the court articulated the rule that there must be an actual agreement on an agreed boundary line for the Agreed Boundary doctrine to apply.

2.   New Easement Legislation

Another major area of neighbor vs. neighbor conflict is easements. Often two neighbors get into disagreements regarding who is responsible for maintenance costs of an easement, particularly when there is no written agreement to share costs.

Legislation signed into law during 2012 (AB 1927/Jones) authorizes the owner of a right-of-way easement to seek a judgment to determine the proportionate liability of each owner for maintenance costs.

Under the prior law, an owner of an easement was able to apply to a court for the

appointment of an arbitrator to apportion the costs.

This new law will make it easier for an owner of an easement to obtain a judgment in small claims or superior court for apportionment of maintenance costs rather than appointment of an arbitrator.

3.  Large Homes May Require CEQA Review

Ordinarily, large single family homes are not subject to CEQA review. That’s because CEQA contains a categorical exemption for single-family homes.

The reason for this is single-family residences are usually relatively small and do not individually have major environmental impact. Requiring each new single family home builder to go through the rigorous and expensive CEQA process would cause undue burdens and expense.

It is also for this reason that neighbors opposing new construction or remodels of large homes often argue that applicants should be required to produce an Environmental Impact Report as required by CEQA, under a theory that the home is so large an exception should be made to the exemption.

A new case will give those neighbors new ammunition.  In Berkeley Hillside Preservation v. City of Berkeley 203 Cal.App.4th 656 (2012), the Court of Appeal held that the extremely large size of a proposed Berkeley home constituted an “unusual circumstance” which made the project ineligible for existing exemptions under CEQA.

The Berkeley project proposed a 6,478 square foot home with an attached 10 car, 3,394-square foot garage. Given this is well within the range of many larger size homes in Marin, it is likely that opponents of new proposed similarly-sized single family homes will use Berkeley Hillside Preservation as an argument for full CEQA review.

John Corcoran is an attorney with the Corcoran Law Firm, P.C., in San Rafael, where he practices real estate/land use and works with small business owners. He is also a member of the Tiburon Planning Commission. He may be reached at jcorcoran@johncorcoranlaw.com.

CEQA Applies to Infill Projects too says Federal Magistrate

This oped was in the Mercury News on April 8.

 We all like the concept of infill housing, but let's do it right. No caving to profit-hungry developers.

CEQA: Milpitas case shows how the rush to reform is unwise

By Richard Drury

Special to the Mercury News

Posted:   04/08/2013 10:00:00 AM PDT

Updated:   04/08/2013 07:39:36 PM PDT

Business interests are pushing to make major changes to the California Environmental Quality Act (CEQA). The main complaint is that this landmark environmental law is abused by those with "not in my backyard" interests. 

But changing CEQA in a way that meets business concerns without gutting its key protections is a tricky business. Exempting whole classes of projects that are deemed to be "green" simply because they fit into a generic category will have significant unintended consequences for public health and the environment.

Take the lawsuit against the city of Milpitas' Transit Area Specific Plan. A recent column in this paper claimed that NIMBY interests were behind this litigation and that the petitioners did not have legitimate environmental concerns.

The plan fast-tracked approval of several large projects, including a 732-unit residential development close to the planned Milpitas BART station. A group of concerned neighbors and workers came together to challenge this project. The lawsuit was based on serious environmental and public health grounds.

The California Environmental Protection Agency determined that the building site was heavily contaminated with toxic, carcinogenic chemicals. These toxins were found at levels that far exceed residential standards and could have exposed construction workers to unsafe conditions while excavating contaminated soil. Recent tests show toxic chemical vapors in soil that could
expose future residents. 

 

Milpitas exempted the project from environmental review in order to encourage transit-friendly development. But this exemption inadvertently put at risk the health of thousands of workers and future residents. The city also risked exposing taxpayers to liability should these people fall ill from toxins when the city could have -- and should have -- known that proper mitigation was required.
Workers, conservationists and business interests agree that transit-friendly development is a good idea. Business leaders support it because it promotes economic growth. Conservationists support it because it reduces environmental impacts from sprawl. Construction workers are happy to do good work.

But unlike business leaders, conservationists and workers are looking at more than just the bottom line. They are looking at the health of the larger environment and at how every phase of the project affects public health.

CEQA forces these messy issues into the open and requires public agencies to wrestle with them. It does not prevent projects from moving forward. No matter what happens in this lawsuit, there will be residential development near the Milpitas BART station. But shouldn't the project be built in a way that respects the health of the people who build it and the families who will occupy it?

A recent report by the U.S. Environmental Protection Agency puts San Jose as the top city in the nation in building residential infill development. Los Angeles and San Francisco are second and fourth on that list. This rapid rate of infill development goes on with CEQA in place. Aggressively streamlining environmental review would fix an imaginary problem while causing a whole host of public health and environmental risks -- all for the benefit of large developers and other business interests.

The public participation and environmental protections CEQA provides make projects better. They may marginally increase the cost, but removing key environmental protections comes at a cost for all Californians, including business interests.

California is golden because it is green. And California is green because of CEQA.

Richard Drury is a partner in the law firm Lozeau Drury, and is counsel for the plaintiffs in May v. Milpitas. He was legal director of Communities for a Better Environment for a decade and has twice been named attorney of the year by California Lawyer magazine. He wrote this for this newspaper.

Try Mediation with a Neutral Expert

There’s a trend in the legal community toward collaborative law. This is most often seen in a family law setting, where two attorneys representing husband and wife try to work together to resolve the thorny issues of diving up property and arranging child custody and support.   Often, with the consent and input of both parties, a neutral financial or other professional will be brought in to assess the situation. This is different from what we think of as a normal lawsuit, where dueling attorneys hire experts to argue their side in court or even in mediation.

The two sides go in, and often come, out of the experience as bitter adversaries, both sure they have been treated unfairly. 

Collaborative law attempts to break this cycle of recrimination, mistrust and acrimony, by taking the clients through a process whereby they work together to solve the most pressing issues facing them, with the help of the neutral expert, weighing the benefits of all options.  When this approach works, it can save money, time and the emotional well-being for all concerned.

Applying this approach to Mediation:

In circumstances where two neighbors are at an impasse over one of the neighbor’s trees, boundary lines, easements or similar issues,  a similar approach can be used in mediating the dispute.  The two parties would agree to mediate the case with an attorney or community mediator and the use of a neutral evaluator of the case, for instance, a licensed property surveyor or consulting arborist trained in evaluating the health or hazard potential of trees.  Rather than each party hiring an attorney and their own experts, they agree to submit to an experienced expert’s advice in their particular situation.

As with any mediation, everything said is confidential and the parties are free to hire attorneys and go to court, if they cannot resolve their differences.  They will, however, have a much clearer idea of what the outcome is likely to be after having gone through mediation with a neutral professional evaluating the matter from a detached, scientific point of view.

Here is what one lawyer said about the use of neutral experts in mediation:

The expert is jointly hired by both sides and the cost is shared equally by both sides. The expert’s role is to openly provide independent, neutral expert information and analysis to both side and more so, to the process as a whole. The non-aligned expert becomes a mutual asset and a resource for all parties in developing options for settlement.

                                                                                                                                      

Shared costs. Shared usage. Heightened value. The joint use of a neutral, independent expert is a beautiful thing: The client pays less money and gets more value. And the experts find it liberating and freeing, allowing them to do their best work. (Michael Zeytoonian, http://www.disputeresolutioncounsel.com/2009/06/using-neutral-experts-in-mediation/#more-81)

Getting your neighbor to agree to mediation:

Consider taking your neighbor dispute to mediation and share the cost of having an attorney-mediator and neutral expert serve you, and help resolve your issues and keep peace in the block. You will need to initiate contact with the neighbor and try to overcome whatever hostility may have already developed that has brought you to an impasse. 

You need to explain that you would rather not have to engage the services of a lawyer and hire an expert to represent your views, but that  if you can’t resolve the differences, you may be forced to do so.  If you end up in court, the judge is most likely to send you to mediation anyway.  In the meantime, both parties will have spent hundreds, possibly thousands just to be back at square one. 

Then offer mediation with a skilled, experienced neutral expert who can evaluate the problem and recommend a mutually beneficial course of action or at least let both sides understand their options and likelihood of prevailing at trial should it go that far.  The two of you can jointly choose the neutral you feel most comfortable with. Lists can often be found at your local bar association or you can look online, use the yellow pages or ask for referrals from others.

Try mediation first. You have nothing to lose and you may find that you can settle your differences and maintain a neighborly relationship in the bargain.

More CEQA News

There is definitely a concerted attack on CEQA by big business and development interests.  Are these the same folks who claim all regulations and taxes are bad for business?  That California is chasing out the "job creators?" Do they know that in real terms, today's workers earn less than in the 60's?

I suspect they do and they don't give a fig. They got theirs; screw you. Move to Texas, earn minimum wage (which is less there than it is here, by the way). Work in some non-regulated polluting industry and live in a company town. With the heat, humidity and mosquitos.

Anyway, there is hope. A new site, CEQA Works, is fighting back. This is a coalition of many groups, telling CEQA's success stories, like the newest one from our Attorney General Kamala Harris's settlement on a big case in Riverside County.   

Check out CEQA Works and send in your stories, letters to the editor or opeds.  

CEQA "modernization" not needed

Cynthia Murray of the North Bay Leadership Council, in her oped of January 20, 2013 (Marin Voice: Time to modernize CEQA so it is used properly), purports to speak for what “most people” want, saying “Most people would agree that if a school, hospital or road project has been subjected to extensive environmental review and met all federal, state and local environmental laws, including the Clean Water Act, the Endangered Species Act and the Clean Air Act, the project should go forward without being sued for purported environmental reasons.”

If this were the case, then there would be no need for the California Environmental Quality Act (CEQA) and its provisions for citizen enforcement.  The laws she refers to are all Federal laws (which, incidentally have their own citizen enforcement provisions), all laudable but narrowly defined.  CEQA, on the other hand, is broad-based and covers a multitude of environmental requirements for anything considered a “project” under its terms.  

This includes the impact on traffic, neighborhood character, visual and aesthetic properties, archeological qualities of a site, and many more. 

Development and big business interests have been trying to gut CEQA for years in the name of “reform.’” Some recent changes  include SB 226 in 2011 which streamlined the process for infill housing projects if they can demonstrate that they adhere to other environmental laws.  

To call for more changes without even specifying what they are, as Murray does in her call for “modernization” appears to be nothing more than a ploy to further erode the citizen enforcement provisions of what is a landmark environmental law.

As Murray herself points out, (citing an undated report by the Thomas Law Group) courts reject 50% of all projects challenged under CEQA. That means  50% of the cases are successful.  And this represents only the published cases.  A very small percentage of any cases are published or even appealed in California.  Yet even so, the fact that 50% of published  cases, those that are appealed and deemed important enough to be published by the appellate court, are decided in favor of challengers  should tell us something and it’s not that the law needs to be changed. It’s that it’s working.  If a local or state governmental agency is not doing its job by approving projects that do not comply with California’s environment all regulations, we need an informed and active populace to make sure they do.  Laws like CEQA insure that can happen.

CEQA doesn’t necessarily stop all such projects, but it makes the jurisdiction follow the law, and the project proponents perform needed mitigation measures, before approval takes place.   If not, the average citizen has the right to file a lawsuit, and if they win, to have their attorneys fees and costs  reimbursed. Without those provisions, there would be little incentive for developers or bureaucrats to do the right thing.

What Murray and others representing development and big business interests want is for no citizen review under CEQA  when  “a project has met all required state, federal and local environmental laws, regulations and planning, zoning and land-use requirements…” But who is to make that determination, if the citizens lose their rights under CEQA? 

Instead of weakening and further “modernizing” a law that is working quite well for the citizens and the environment in California, we should be invested in protecting it and strengthening other environmental protections and regulations that ultimately lead to better projects, smarter development and a cleaner, healthier environment for all.