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.

"When a Tree Falls, We Hear it"

I hope everyone had a cool Yule and will have a green New Year.  Keep your trees fresh and avoid fights with the neighbors, if you can.  Trees blocking views?  Views threatening trees?  Wayward limbs getting dangerously close to the fence and backyard?  Don't litigate, Mediate. 

Tree Dispute Mediation is here for you.  Complete with an attorney mediator and expert neutral consulting arborist/tree hazard specialist.  Save time, money and your relationships with the neighbors.  Try mediation first.

Our motto since 2012:  "When a tree falls, we hear it."

What are you waiting for?

Green Legal Solutions 
and Tree Dispute Mediation
email us for more information: coastlaw@earthlink.net

EIR for Novato Landfill expansion dinged in Court

Big doings in Marin.  A superior Court judge has side with environmentalists against the Redwood Landfill expansion, saying the EIR is deficient in several ways, including not taking into consideration greenhouse gas emissions.  This is a victory for the law and the environment.  Read the story from the Marin IJ below. If the ruling holds, this is big news and a major victory. 

Marin judge's tentative ruling threatens expansion of Novato landfill

By Richard Halstead
Marin Independent Journal

Posted:   12/10/2012 05:36:37 PM PST

In a tentative ruling issued Monday afternoon, Marin Superior Court Judge Lynn Duryee invalidated an environmental impact report that paved the way for a major expansion of Redwood Sanitary Landfill in Novato. 

After the county of Marin certified the environmental impact report in 2008, the landfill was able to obtain a permit from the state to boost capacity at the landfill by 6 million cubic yards to a total capacity of 25 million cubic yards and to continue operating the landfill for another 16 years.
In her tentative ruling, Duryee wrote, "By not including a discussion of the cumulative effect of the project's greenhouse gas emissions, (Marin County) Environmental Health Services failed to proceed in a the manner required by law."

Lawyers representing the county and Redwood Landfill will get an opportunity to argue their case one last time at 9 a.m. Tuesday. Lawyers for the plaintiff in the case, No Wetlands Landfill Expansion, a local environmental organization, will also present their arguments to Judge Duryee.
Brent Newell, one of the attorneys working for No Wetlands Landfill Expansion, said if Judge Duryee were to adopt this ruling as her final ruling, the environmental impact report would be voided and the landfill's expansion permit vacated.

Newell added, however, "It's a tentative decision; it's not a win or a loss yet. This is not over by a long ways."

Osha Meserve, an attorney working for Redwood SanitaryLandfill, declined to comment on the judge's ruling, except to say, "We have requested oral arguments."

In her ruling, Judge Duryee identified several other aspects of the report that she said were deficient. For example, Duryee said the report fails to adequately discuss the possible increased "non-cancer health impacts" from air pollutant emissions. These include acute respiratory infections, chronic bronchitis, pulmonary emphysema and bronchial asthma.

Duryee wrote, "Since this significant air quality impact constitutes a separate risk to public health, the Final Environmental Impact Report should have identified and analyzed it."

Judge Duryee wrote that the report was also inadequate because it failed to analyze the formation and impacts of very fine particulate matter having a diameter of 2.5 microns or less. These tiny particles can easily penetrate into the airways and lungs where they produce harmful effects such as the worsening of heart and lung diseases.

Duryee also said the report improperly deferred formulation "of mitigation measures to reduce the impact to the project from potential flooding," and "mitigation of the impact from groundwater contamination from an improperly designed leachate collection and removal system."
And, Judge Duryee ruled that the environmental impact report failed to adequately describe an off-site alternative to the project.

The landfill's expansion project was opposed by No Wetlands Landfill Expansion and several other environmental groups who warned that Marin taxpayers could get stuck with the bill if toxic leachate stored in the landfill escapes due to flooding or an earthquake. The landfill is surrounded on three sides by the Petaluma River, San Antonio Creek and other wetlands that lead into San Francisco Bay.

Contact Richard Halstead via e-mail at rhalstead@marinij.com

Why Tree Dispute Mediation might be Right for You and Your Trees!

Many of you know I have added to my law practice a Tree Dispute Mediation service with my husband, Ray Moritz, an expert consulting arborist/urban forester. Ray has participated in hundreds of mediations around trees, views, hazard issues, wildland fire and the like.  I have training in transactional analysis (it helps, let me tell you), and mediation in standard and environmental settings.  Together we can help save people time, costs and headaches by using mediation with a neutral scientific expert with no bias toward either side.  Resolve your issues by learning what's best for the environment and your relationship with the neighbors.  Here
s an article on the subject.

Pass it on:

The problem:

Two neighbors are at an impasse over one of the neighbors trees that the other neighbor finds unsightly, scary and messy.  The first neighbor, call him Neighbor A, refuses to hear anything the other neighbor, Neighbor B, says about his trees. He planted them twenty years ago for privacy and shade and they are doing the job.  If they drop limbs on Neighbor B’s property, he can just pick them up and consider it free firewood. 

And no, he will not consider cutting down these trees and planting something shorter, cleaner and neater, even if Neighbor B offers to pay half. 

What to do?  If Neighbor B truly feels Neighbor A’s trees are a hazard (the limbs they drop are huge and he fears for the well being of his dog, his kids, his wife and himself) or even just a nuisance (he’s tired of picking up debris and having half his yard in shade), he may well hire an attorney and write Neighbor A a threatening letter. If Neighbor A ignores it, the two may find themselves in court, with costly attorneys and experts and staring at a long, grueling legal battle that will ensure there is never any good will between these two neighbors again. One may even end up moving away just to avoid the “despot” next door.

Fears and accusations of harassment, name calling, hang up phone calls, even tree damage or poisoning may well ensue.

The solution:

How to avoid all this?

Try mediation first, before you resort to legal action.  But not just any mediation.  Because even in mediation, positions can harden and experts can argue, until an impasse forces the parties into court anyway.

Try Tree Dispute Resolution with an experienced neutral tree expert, who works side by side with a neutral attorney mediator. 

Litigation is costly, especially if each side is forced to hire attorneys and experts, pay court fees, attend endless depositions and fill out countless paperwork.  Try mediation instead. We work with you to solve the thorny problems that come between neighbors, their trees and their views.  We help you deal with hazard trees and nuisances.  What is unique to our service is a trained neutral consulting arborist provides expert assistance in finding the right solution for your situation.  Our goal is to keep trees and relationships healthy and thriving.  

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)

Take your tree dispute to mediation instead of court.  Use trained, experienced neutrals, including a consulting arborist/urban forester with more than twenty five years experience helping people with the same issues facing you now.  Share the cost of having an attorney-mediator and neutral expert serve you, and help solve those thorny problems.

Save time, save money, save your relationship with the neighbors.

Try mediation first.

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.