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.

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.

Ruling stops Walmart from circumventing Environmental Laws

 Very good ruling for the environment.  Keep watching this one:

Ruling is win for environmental law, loss for Wal-Mart

Retailer using petition drives to get stores approved, skirt environmental review

By Will Evans on November 19, 2012 - 12:01 a.m. PST

 

Getty Images/Joe Raedle

A state appellate court has dealt a blow to Wal-Mart’s strategy of using petition drives to push through approval of new superstores while avoiding California’s environmental law. In a cookie-cutter pattern documented by California Watch, sister site of The Bay Citizen, the mega-retailer bankrolled local signature-gathering efforts to build superstores or repeal restrictions on big-box stores in five California cities last year, including Milpitas. Once 15 percent of local voters signed the petitions, city councils had to either approve the projects or hold a special election, which can be costly. Wal-Mart then urged cities to approve the petition rather than send it to voters, angering some officials who felt bullied.
Wal-Mart has said the strategy is necessary to avoid politically motivated lawsuits under the California Environmental Quality Act. 

Voter-approved ballot measures that stem from petitions are exempt from environmental review and protected from CEQA lawsuits. Wal-Mart argued that when a city approves one of its petitions without an election, the project would be protected, too.
But in a strongly worded opinion, a three-judge appellate panel ruled late last month that the landmark environmental law still applies.

“The legal issue is important and calls for speedy resolution,” the opinion stated. “Developers’ strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA’s important statutory objectives and to subvert the constitutional goals of the initiative process.”

The Fresno-based 5th District Court of Appeal disagreed with a 2004 ruling by a different appellate court, setting up the possibility that the issue will ultimately be resolved by the California Supreme Court.

The Fresno court held that a petition signed by 15 percent of a city's voters doesn't carry the same power as a majority-approved ballot initiative. "To hold otherwise would authorize rule by a few – the antithesis of democracy," it said.
The case centers on a Wal-Mart expansion project in the small Gold Country city of Sonora. Attorneys who often target Wal-Mart with environmental lawsuits have sued over its use of the initiative process there, as well as in the San Bernardino County town of Apple Valley and the Silicon Valley suburb of Milpitas.

The city of Sonora argued in court filings that its citizens supported the proposed superstore so there was no point in holding an election. Wal-Mart argued that it would be unfair to "force city councils to incur unnecessary and unwanted expenses to hold elections."

The city's and company's positions reveal "their failure to appreciate the importance of elections in the initiative process," the court stated. "The results of an election represent the will of the people. A petition signed by 15 percent of the voters does not."

The legal battle slowing down Wal-Mart's expansion frustrates Sonora Mayor Hank Russell.
"These people just want to delay a process that should be part of a free market economy," he said. "I don’t think it’s the city’s role to decide who can compete."

Wal-Mart spokeswoman Delia Garcia said the existing Sonora store "has served customers faithfully and made a positive impact on the local economy."

"We are committed to providing customers the broadest selection of products to meet their family's needs and will evaluate all options for moving forward," Garcia wrote in an email.
The court's ruling goes beyond Wal-Mart, said Brett Jolley, the attorney who brought the suit.

Related

"The opinion closes what could have been a major loophole in the CEQA process which would have allowed the wealthiest developers ... to avoid CEQA and public elections by utilizing the initiative process," he wrote by email. 

Jolley quoted California Watch's story in his opening brief, but Wal-Mart objected, moving to strike that part of the petition. The judges decided that the reference to the article did not alter their conclusions and denied Wal-Mart's motion.

San Diego-based lawyer Cory Briggs, a longtime thorn in the side of Wal-Mart, said he would use the ruling to revive a similar lawsuit he is pursuing in Apple Valley. Briggs, who filed a friend-of-the-court brief in the Sonora case, heralded the decision as "a victory for the rule of law and for true majority rule."

"Any developer who thinks that they're going to buy their way to the ballot box is now going to have to do the work of actually persuading a majority of the voters," said Briggs.

Wal-Mart has had mixed success at the ballot box. Voters in Inglewood shot down the company's proposed superstore in 2004. But the residents of Menifee, in Riverside County, approved a Wal-Mart ballot initiative last year.

Biz Interests in State Trying to gut CEQA laws

Shocking, shameful and not at all surprising, biz interests are trying to once again gut the 40 year old California Environmental Quality Act which subjects developments to environmental review.  This in the light of all we know about global warming, loss of habitat, including our important fisheries, loss of water quality, pollution of all sorts.  Oh, but don't hinder the swift approval of industries trhat may might and could provide jobs.  Jusst say job creation and everybody is supposed to genuflect.

Not so fast, a group of Cal. legislators is working overtime to stop this ill-conceived notion in its tracks.  Here is the article from today's Chronicle.  My comment to all this: Make the proposed changes to CEQA themselves have to go through a CEQA review.  It's what the law was designed for.

And note Jerry Brown's pandering remarks: "I never met a CEQA exemption I didn't like," and "CEQA reform is the Lord's work." 

California environmental law faces changes

Wyatt Buchanan

Updated 11:00 p.m., Wednesday, August 22, 2012

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Sacramento --
A proposal to loosen California's landmark environmental protection law is expected to be introduced at the Capitol as soon as Thursday, giving the public and lawmakers only about a week to debate and consider the controversial legislation's fate.
Backers of the proposal, largely from the business community, say the California Environmental Quality Act passed in 1970 needs to be updated because it has become cumbersome, and some individuals and groups misuse the law to stop or delay development for non-environmental reasons.
Republicans in the Legislature have long sought changes to the environmental law, commonly known as CEQA, and this year some Democrats, including Gov. Jerry Brown, signaled that they are open to discussion.
At a news conference last month, the governor said, "I've never seen a CEQA exemption I didn't like." And on Wednesday in San Francisco at a news conference for his ballot measure to raise taxes, Brown said of the proposal that has been circulating: "To tell you the truth, I have not read it. In fact it's not even clear we have a final draft yet. But look - CEQA reform is the Lord's work."
Environmental groups say the proposal is an attempt to gut the law in the waning days of the legislative session to avoid public input and scrutiny. The Legislature's two-year session comes to a close Aug. 31.
Typically, it takes at least several months - often longer - for a proposal to be vetted by committees and then go to a vote of the Legislature. But nearing the end of a session, controversial proposals sometimes are inserted into bills and pushed through.
While the bill has yet to be introduced, people both for and against it expect language that would alter the environmental law to be inserted into SB317 by state Sen. Michael Rubio, D-Bakersfield. That bill pertains to fish management in the Kings River, and amendments to the bill with the new language were released by proponents late Wednesday.

An influential law

CEQA is the cornerstone of California's environmental protection efforts. It was signed into law by then-Gov. Ronald Reagan, and has been a model for other states and even for some changes in federal law. Under the law, a project that will have a significant effect on the environment is subject to an environmental impact report.
Members of the public can comment on that report, and government agencies preparing the report must respond to those comments. Once the impacts are identified - they can range from traffic congestion to public health problems and damage to the environment - the developers must take steps to mitigate those impacts.
Perhaps more than any other, the law is responsible for how communities across California look today.

Eliminating reviews

Business leaders called the law an important tool that provides the public with an assessment of the environmental impacts of projects, but said it needs revisions.
"Since CEQA became law, many other environmental and land-use laws have been passed by multiple agencies at the federal, state and local levels, creating duplicative and overlapping processes, standards and mitigation requirements which often result in lengthy project-permitting delays and uncertainty," said Bill Allen, CEO of the Los Angeles County Economic Development Corp., in a letter to lawmakers supporting the proposal.
Under the proposal, projects that meet the requirements of an existing land-use plan - which has met CEQA mandates - would be exempt from going through the law's rigorous environmental review process. Backers say that eliminates duplication, but opponents say it means the public will not have a chance to weigh in on - and force changes to - large projects that will affect them or the environment, including power plants and hazardous waste dumps.
Exemptions from CEQA may also apply to two of the governor's biggest priorities: high-speed rail and the proposed tunnels to move water under the delta, environmentalists said.
"It would be really devastating for California and probably the rest of the nation for the kind of precedent this would set," said Jena Price, legislative director for the Planning and Conservation League.

Previous measures

She said attempts to alter the environmental law frequently emerge at the end of the legislative session, but previous measures have not gone as far as the current proposal.
"This is one of the more, if not the most, egregious attempts to gut CEQA I have ever seen," Price said.
Other environmental groups, including the Sierra Club, already have called on their members to contact leaders of the Legislature to block action on the measure even before it's an actual bill. Business groups, too, have asked members to call lawmakers, but to urge them to make changes in the law. Variations of the proposal for exemptions have been passed around the Capitol for more than a week. On Monday, a coalition of business groups, developers and some labor unions held a press conference to outline what they would like to see in a proposal.
Their ideas are reflected in the amendments.
But environmentalists are pushing back, and on Tuesday a group of 33 lawmakers sent a letter to the Democratic leaders of the Legislature calling for no changes to CEQA without first going through the full public process.

What is CEQA?

The California Environmental Quality Act, passed in 1970, is the cornerstone of California's environmental protection policies. A public agency must determine whether a proposed project would have a significant environmental impact. If so, the project becomes the subject of an environmental impact report, on which the public can comment. Those comments must be addressed, and the report must include ways to mitigate impacts on the environment.

Wyatt Buchanan is a San Francisco Chronicle staff writer. E-mail: wbuchanan@sfchronicle.com

Comments:  

 

greendogdemo

8:39 AM on August 23, 2012

Most shocking that Gov. Brown "never saw a CEQA exemption [he] didn't like." Of course he never saw a 3 Strikes law he didn't like either. Oh, Jerry, we really want to like you.

   

Delete

hepstein

7:06 AM on August 23, 2012

WOW!! This is the second time this week I agree with Gov. Brown. CEQA desperately needs to be reformed or rescinded. The out of control CARB should be disbanded.

   

sffoghorn

6:47 AM on August 23, 2012

If a Republican governor proposed this, the Democrats would oppose it vigorously. This is why Obama is poised to lose in November, because priorities that Democrats run on are end up worse when the Democrats are in office. This law was signed by Ronald fricken Reagan for chrissake, and now a Democrat is gutting it. How far have we descended into the corrupt pit of corporate dominance!

jenniferp

6:46 AM on August 23, 2012

"California environmental law faces changes"? Bad headline (not the reporter's fault). Nothing in this story shows that a majority in the Legislature is likely to approve this change to CEQA. If there is likely to be majority support in the Legislature for this change, let's hear about it, please. Otherwise a headline like: "Legislature to consider last-minute proposal to weaken California environmental law" would be more appropriate.

   

HollyBliss

6:40 AM on August 23, 2012

"The business community" meaning "billionaires and those that profit from collecting interest from the those that buy what's built."

This smells like an attempt to grab more northern California water for a certain senator's biggest contributor.

   

hexaprotodon

6:37 AM on August 23, 2012

If anything, California's environmental protection laws (and enforcement) should be strengthened.

   

nico415

6:34 AM on August 23, 2012

One word: REAGAN
How dare conservatives question the Almighty? What's next...will they raise taxes to hire teachers???

helpmeout

10:32 PM on August 22, 2012

Just imagine what developers will get away with once CEQA is watered down...SF waterfront beware, here come 8 Washington's ugly sisters

   

frenchjr25

8:07 PM on August 22, 2012

CEQUA also deals with historic preservation. The delays do get a bit ridiculous but at the same time developers need to start using more common sense when designing projects. Why tear down a historic building when there are plenty of empty lots already? Why cut down century old trees when buildings can be built around them?