LFAP Attorney Announcement

LFAP is pleased to announce the addition of an associate to the firm:

Catherine Ferguson

Ms. Ferguson practices in the areas of Land Use, Environmental, Real Property, Municipal Law, and Civil Litigation. Her practice includes project entitlement, real property purchase and sale agreements, environmental review under CEQA, stormwater regulation and compliance, and property and contract disputes. Ms. Ferguson joined the firm as a contract attorney in January of 2017 and became a full associate in July of 2018. Prior to graduating from University of San Diego School of Law, Ms. Ferguson interned at the Oceanside and San Diego City Attorney’s Offices, and San Diego Coastkeeper. Ms. Ferguson is a member of the San Diego County Bar Association and Real Property Law Section of the CLA.

 

The attorneys of Lounsbery Ferguson Altona & Peak LLP have served the specialized legal needs of businesses, individuals, and public agencies for more than three decades. LFAP is committed to providing client satisfaction through efficient personal service and finding creative, cost-effective solutions. For more information, please visit our website.

Ruling Maintains Funding of Essential Services

The Affordable Housing Coalition v. Sandoval, Sacramento Superior Court No. 34-2012-80001158-CU-WM-GDS

After four years of litigation, Sacramento Superior Court issued a ruling allowing property taxes formerly allocated to redevelopment agencies, to continue to fund schools, fire protection and other core local government functions after legislation dissolved redevelopment agencies across the state. On September 26, 2016, in a matter arising from the dissolution of redevelopment, the Honorable Judge Kenny denied the Affordable Housing Coalition of San Diego County’s Second Amended Petition for Writ of Mandate and Complaint for Declaratory Relief.

The Coalition’s Petition named almost all of the taxing entities in San Diego County, including Cities, Successor Agencies and Districts, as a Respondent or Real Party in Interest.  The Coalition contended that despite the dissolution of redevelopment agencies and elimination of their funding, the redevelopment agencies’ affordable housing obligations continued on as enforceable obligations of Successor Agencies, formed to facilitate the redevelopment agencies’ dissolution. The Coalition further alleged that the Successor Agencies failed to comply with these obligations.  The remedy pursued by the Coalition would have resulted in the diversion of property tax funds from schools and other core services to which those funds were allocated post dissolution. In May 2015, the Court bifurcated the action to first determine the merits of the Coalition’s legal contentions before addressing its factual contentions.   After oral argument and further consideration, the Court issued a detailed 22-page Ruling, denying the Coalition’s legal claims for lack of merit. The Court further determined that it was not required to decide the Coalition’s factual claims to deny the Petition and Complaint in its entirety.

Lounsbery Ferguson Altona & Peak defended this action on behalf of multiple public entities, taking the lead in briefing and arguing the legal issues.  James Lough and Alena Shamos represented the Lemon Grove entities, and also specially appeared on behalf of several of Successor Agencies and Cities in defending against the Coalition’s claims.

New Rule on Adding Conditions After Map Approval

From a recent case Tarbet v. East Bay Municipal Utility District (2015), it is clear now that property owners cannot rely on the Subdivision Map Act to shield them from additional requirements by third party service providers other than local agencies.

In Tarbet, after the County of Alameda accepted and approved Gregory Tarbet’s parcel map, Mr. Tarbet applied to the water district for water service to his property.  The water district requested an easement on Mr. Tarbet’s property for installation and maintenance of the pipeline.  Mr. Tarbet refused to grant an easement and filed suit against the water district, claiming that the approval of the map gave him a vested right and precluded the water district from imposing conditions it had not imposed prior to the county’s approval of the map.

Under the Subdivision Map Act, approval of the vesting tentative map entitles the developer to proceed with the project in substantial compliance with the ordinances and polices in effect when the map application was complete.  The Subdivision Map Act limits what local agencies can require from property owners once the map is approved.  But under the Act, local agency means a city and/or county.  The County of Alameda, and not the water district, acted as the local agency when it approved Mr. Tarbet’s map.  In addition, the Subdivision Map Act expressly states that nothing in the Act “shall be construed to create a right or entitlement to water service.”  Lastly, the Act applies to the initial design of a subdivision, and does not deprive a water district of control over the final design of its water delivery system.  Thus the water district was under no duty to acquire an easement on the property at the time the map was approved.

Take away: The approval of the map does not entitle property owners to automatically receive all the services on their property.  When planning the development of their properties, it is paramount for property owners to take into consideration any additional conditions that third party service providers may impose after the map is approved.

Yana Ridge advises clients on land transactions and development, municipal law, and real property.  Her transactional practiceYanaCasualincludes preparation of cost sharing agreements, easement agreements, purchase and sale agreements, CC&Rs and leases.   Her public practice includes the initiative petition process and public agency legislation.

 

New Rules on Demurring and Conferring in 2016

Originally Published in San Diego & Orange County Attorney Journals

Rules regarding challenges to complaints changed significantly in 2016, with the enactment of Code of Civil Procedure § 430.41, and the amendments to Code of Civil Procedure §§ 472 and 472a. . Before January 1, 2016, if a party objected to a complaint, cross-complaint or answer, they could file a demurrer and follow the regular motion process to ruling. Now, a party planning to demur is faced with strict meet and confer requirements, which are geared to avoid the demurrer entirely. Both parties are required to participate in the meet and confer effort and observe new limits on the right to amend. These changes are intended to limit the number of demurrers heard in California’s already overburdened courts, so judges will be taking compliance seriously.

New Rules to Live By

The best approach is to call your opposing counsel or schedule an in-person meet and confer meeting before sending a letter. Then you will know if you have to write a lengthy meet and confer letter, or simply document the terms of your agreement to resolve your objections to the pleading. Act quickly to initiate the meet and confer process, and make sure to set limits on your opposition’s response time. Under the new rules, the meet and confer must be completed within five days of your deadline to file a responsive pleading, unless you obtain an extension (CCP § 430.41, subdiv. (a)(2)).

A thirty-day extension is available under CCP § 430.41 if meet and confer efforts take longer than expected by filing a declaration. The extension starts on the day the demurrer or responsive pleading was originally due. Any further extensions require a court order based on a showing of good cause. Take careful notes during the meet and confer process, as you need to describe these efforts in a declaration if you ultimately file a demurrer. Expect that any email, letter or fax you exchange with your opposition will end up in front of the judge, as an exhibit to an opposing declaration. As meet and confers are required before demurring to amended pleadings, take note whether the other side is amending in good faith or to delay and harass.

Keep in mind that if you ultimately file a demurrer and the court sustains your demurrer with leave to amend, you cannot file another demurrer on “any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version” of the pleading (CCP § 430.41, subdiv. (b).). The opposing side can no longer file an amendment after the due date for their opposition to your demurrer without a stipulation documenting your agreement (CCP §472, subdiv. (a).). The 2016 laws also set a new three amendment limit for a complaint or cross-complaint, which limits the court’s ability to sustain a demurrer with leave to amend.

The court can only grant leave to amend, in excess of the three-amendment limit, if you can demonstrate the additional facts create a “reasonable possibility” the defect in the pleading can be corrected to state a cause of action (CCP §§ 430.41, subdiv. (e)(1) and 472a, subdiv. (c).). This rule also applies if you file an amended pleading by way of a stipulation. Include language in your stipulation that the amended pleading contains additional facts that cure pleading defects or risk rejection of your amendment. There are important restrictions to the application of the three-amendment limit. It only applies to amendments filed “in response to a demurrer and prior to the case being at issue” (CCP § 430.41, subdiv. (e)(1).). That means the limit does not apply:

(a) before the other side files its first demurrer, and

(b) after a case is deemed at issue, which occurs once every cause of action in your complaint, or cross-
complaint, is responded to by way of an answer (CCP § 430.41, subdivs. (e)(1) and (2).).

For example, the three-amendment limit in CCP § 430.41 does not apply to an amendment made without leave of court before the first demurrer is filed under CCP §472, subdiv. (a), or to a motion for leave to amend filed later in the case. Courts have eagerly anticipated the enactment of these rules as a means to ease their burden. Your compliance, or lack thereof, can set the tone of your case. Make sure to review the rules carefully, or enlist the help of an experienced litigator when needed.

Alena Shamos

Alena Shamos is a senior litigator at Lounsbery Ferguson Altona & Peak. Her civil litigation practice includes trial, real estate and business litigation, partition and quiet title actions, government tort liability, writ practice, appellate practice, constitutional challenges, unlawful detainer, municipal litigation, elections law, contract disputes, tort disputes, environmental litigation (CEQA and NEPA), inverse condemnation and construction defect litigation. Ms. Shamos represents government entities, businesses and individuals.

 

 

LFAP Celebrates 20 Years of Service To Its Clients

On March 15th this firm marked its 20th anniversary.  Although we’ve doubled in size from eight to sixteen attorneys, we continue to serve many of the same clients who started with us in 1996.  In fact, we have personally served some of our clients for nearly 40 years.  It is this loyalty of our clients that has made our success possible.  We are only as good as the people whom we help, so we would like to take this opportunity to tell you how much your association with us is appreciated. Thank you for the opportunity to serve you; we look forward to the next twenty years.

Cheers For Direct Democracy

Every California voter interested in exercising the initiative petition rights guaranteed by our State Constitution, got a huge boost last week. On March 18th, the Fourth District of the Court of Appeal issued its decision in California Cannabis Coalition v. The City of Upland.

In California Cannabis Coalition, our judiciary once again reinforced the superiority of the initiative right over other laws and even other Constitutional provisions. A non-profit corporation sponsored and drafted a medical marijuana initiative petition, imposing a $75,000 fee on dispensaries within Upland. The City argued the fee is a general tax, that under the California Constitution Article 13C, the tax had to be submitted to voters at a regularly scheduled election instead of a special election ballot. Regardless of whether the fee is a tax under Article 13C, the Court agreed with the proponents that voters’ approval of taxes under Article 13C is limited to taxes imposed by local government; Article 13C is silent as to taxes imposed by a citizens’ initiative. Even a Constitutional provision does not supersede the initiative power. By construing the initiative power liberally in favor of the people, California Cannabis Coalition confirmed the court’s duty to jealously guard the initiative as one of the most precious rights of our democratic process.

For forty years, the members of LFAP have been guiding public and private clients in the exercise of their initiative petition rights. We have handled public facilities, land use and pension reform measures from inception through election. We are gratified to see this strongest possible judicial support of the initiative process as declared by the Court of Appeal. While the citizen’s initiative right dates back to enactment of the 1911 California Constitution, it is proving to be one of the most enduring remedies for the voter to impose and enforce any decision that requires action of a local public agency.

Ken Lounsbery, a founder of the law firm, served as City Attorney of Escondido, South Lake Tahoe and San Marcos. He has guided the enactment of numerousKen Lounsbery citizen initiative measures, beginning in 1978 with the approval by the voters of the North County Fair Shopping Center, and most recently, Proposition B, the successful Pension Reform measure in the City of San Diego. Ken guides both public and private clients through the complexities of the citizens’ initiative process.

Yana Ridge advises clients on land transactions and development, municipal law, and real property.  Her transactional practiceYanaCasualincludes preparation of cost sharing agreements, easement agreements, purchase and sale agreements, CC&Rs and leases.   Her public practice includes the initiative petition process and public agency legislation.

LFAP Attorney Announcement

LFAP is pleased to announce the addition of an associate to the firm:

Yana L. Ridge

Ms. Ridge practices in the areas of land acquisition, development, municipal law, corporate law, and real property.  Her clients include public entities, land owners, developers, and small businesses.  Before joining the firm as an associate, Ms. Ridge served as a legal intern at LFAP for two years, assisting attorneys in real property litigation and the initiative process.  A graduate of the University of San Diego School of Law, Ms. Ridge is a member of the Forum for Emerging Lawyers of the San Diego County Bar Association and Real Property Law Section.

 YanaCasual

The attorneys of Lounsbery Ferguson Altona & Peak LLP have served the specialized legal needs of businesses, individuals, and public agencies for more than three decades. LFAP is committed to providing client satisfaction through efficient personal service and finding creative, cost-effective solutions. For more information, please visit our websitewww.lfap.com.

California Supreme Court Limits Scope of CEQA

The Supreme Court of California recently reversed the Court of Appeal decision in California Building Industry Association v. Bay Area Air Quality Management District (December 17, 2015, Case No. S213478, “CBIA”). At issue in CBIA was the interpretation of Section 21083(b) of the California Environmental Quality Act (“CEQA”), which provides criteria for determining whether or not a proposed project may have a “significant effect on the environment.”

In adopting new thresholds of significance for air pollutants, the Bay Area Air Quality Management District (the “District”), interpreted Section 21083(b) to require an evaluation of the impact of existing air quality on “new receptors”, the future residents of proposed projects.

The California Building Industry Association (CBIA) challenged the proposed thresholds on a number of grounds, including that such a broad analysis is not required under CEQA or its Guidelines. CBIA argued that interpreting CEQA so broadly would push infill urban development located near existing sources of air pollution into more suburban areas, resulting in further environmental impacts such as by increasing commuter traffic.

The Court agreed, concluding that CEQA does not require agencies to analyze the environment’s effects on a project; requiring such an analysis in all circumstances would impermissibly expand the scope of CEQA. Specifically, the court held that the last two sentences of Section 15126.2(a) of the CEQA Guidelines are clearly erroneous and unauthorized under CEQA: “[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”

The Court went on to note, however, that Section 15126.2(a) is valid to the extent it requires analysis of how a project might worsen existing conditions as that is entirely consistent with the purpose of CEQA.

Lastly, the Court upheld the validity of the CEQA sections that require an evaluation of the effects of existing hazards on future users of proposed projects in specific contexts, including certain airport and school construction projects. The Court also upheld the sections that limit the availability of CEQA exemptions where future residents or users of certain housing development projects and transit priority projects.

Take away: There are limited circumstances where CEQA requires an evaluation of whether existing environmental conditions might harm those who intend to occupy or use a project site in the specific circumstances. There is no overarching, general requirement for an analysis of existing environmental conditions in every project where they pose a risk to the future residents or users of a project.

Avneet Sidhu advises both private and public clients on matters involving real property acquisition, sale, environmental Avneet Sidhucompliance, land use entitlement, and development.

Ms. Sidhu is a member of the LAND practice group.

 

New Rule On Road Dedications

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A new case Coppinger v. Rawlins (2015) clarifies that dedication of property does not shift the burden of maintenance to the public agency without satisfying the requirements of the Streets and Highway Code section 1806.

California Court of Appeal found that the county’s acceptance of the road transferred the title, but not the duty to maintain, to the public.  In Coppinger, property owners Joseph and Connie Coppinger filed a lawsuit against the county to quiet title to the road that their predecessor transferred to the public.  When the road was dedicated, the county accepted it with a proviso that the road would not immediately become part of the county-maintained road system.  The Coppingers argued that the county rejected the dedication when it did not unconditionally accept the road, thus the title to the road reverted back to the Coppingers.  The Court disagreed.

Code of Civil Procedure section 771.010 provides that there is a conclusive presumption that dedication was not accepted if all of the following conditions are satisfied: (1) the proposal was made by filing a map only; (2) no acceptance of dedication was made within 25 years; (3) the property was not used for the intended purpose within 25 years of filing the map; and (4) the property was sold to a third party after filing the map and used as if free of dedication.  All of the conditions were not satisfied to invalidate the dedication.  Further, Streets and Highway Code section 941 creates a presumption that an offer of dedication of land, without more, will not be included in the county-maintained road system, because additional action such as acceptance of the road into the county’s maintenance system by the agency, per Streets and Highways Code section 1806, is required.

Take away: When dedicating property for public use, property owners should require the agency to formally accept the property into its maintenance system.  Failure to do so will keep the burden to maintain on the owner.

Yana Ridge advises clients on land transactions and development, municipal law, and real property.  Her transactional practice YanaCasualincludes preparation of cost sharing agreements, easement agreements, purchase and sale agreements, CC&Rs and leases.   Her public practice includes the initiative petition process and public agency legislation.

Ms. Ridge is a member of the LAND Practice Group.