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AUGUST 2008:
CALIFORNIA CASES ON REAL ESTATE
CITY LIABLE FOR FLOODING CAUSED BY STATE HIGHWAY
City of Cloverdale v. Department of Transp. (August 29, 2008)
--- Cal.Rptr.3d ----, 2008 WL 3982075 (Cal. App., 1 Dist)
City held liable for flooding caused by building of highway by State Department of Transportation. Under California Streets and Highways Code Section 73, the State may relinquish to a city title to a highway. The Court of Appeal held that this includes title to drainage channels. The City could have fought this administratively, but it failed to do so. In an unpublished part of the decision, the Court discussed possible equitable indemnity by the State for damages to private landowners which the City had to pay.
AFFORDABLE HOUSING LAW UPHELD
Action Apartment Ass'n v. City of Santa Monica (August 28, 2008)
--- Cal.Rptr.3d ----, 2008 WL 3971764 (Cal. App. 2 Dist)
The Court of Appeal upheld a trial court order which had dismissed a challenge to an ordinance enacted by the City of Santa Monica which requires developers of multi-family dwellings to build affordable housing units. The ordinance was challenged under the Fifth Amendment to the U.S. Constitution which prohibits government “taking” of private property without compensation. Under established law, if a property is not actually taken by the government, but burdened by regulation, such government “exactions” are sometimes measured by the “rough proportionality” test of Dolan v. City of Tigard (1994) 512 U.S. 374, 386-391, 114 S. Ct. 2309, 129 L.Ed. 2d 304 and Nollan v. California Coastal Commission (1987) 483 U.S. 825, 836-837, 107 S. Ct. 3141, 97 L. Ed. 2d 677. The Dolan/Nolland test, however, applies only to individual decisions, such as zoning variances, and not to generally applicable ordinances.
WILLIAMSON ACT CHANGES APPLIED RETROACTIVELY
County of Humboldt v. McKee (August 15, 2008)
__ Cal. Rptr. 3d __, 2008 WL 3582739 (Cal. App. 1 Dist).
Humboldt County changed the minimum size of agricultural preserve parcels under the Williamson Act from 160 acres to 600 acres. The Court of Appeal found that this change applied retroactively to existing contracts. Under the Williamson Act, Government Section 51200 et seq., counties are authorized to enter long-term contracts with landowners. Under such a contract, the landowner promises to preserve the agricultural character of land, and, in exchange, gets an assured low property tax.
CITY CAN BE SUED TO FORCE REMOVAL OF FENCE
Kempton v. City of Los Angeles (August 13, 2008)
81 Cal.Rptr.3d 852, (Cal. App. 2 Dist.)
Homeowner can sue city in equity for an injunction for public nuisance when neighbor erects fence on public property which blocks the sidewalk and causes danger of accident to plaintiff. A public nuisance is one that affects an entire community. Blocking a public sidewalk is a public nuisance per se. A private person can sue a city to abate a public nuisance only when that individual suffers a special injury different in kind, not just degree, from the general public. Fear of an accident to a particular neighbor is such a special inury.
SURVEYOR’S FIELD NOTES PREVAIL OVER PLAT MAP
Claudino v. Pereira (August 12, 2008)
--- Cal.Rptr.3d ----, 2008 WL 3319267 (Cal. App. 3 Dist.)
In a boundary dispute, the field notes of the original surveyor were held to prevail over the plat map. Because the property description was ambiguous, the trial court properly considered extrinsic evidence in resolving ambiguity.
CITY MAY NOT CLOSE STREET ON TIDELANDS WITHOUT HEARING
Zack's, Inc. v. City of Sausalito (August 11, 2008)
165 Cal.App.4th 1163, 81 Cal.Rptr.3d 797 (Cal. App. 1 Dist)
A city may not lease a public street to a private party, without compliance with Streets and Highways Code Section 8309 and related statutes. These require a public hearing before the public can be barred from use of a public street. The private party may sue for nuisance, if the city withdraws a street from public use without compliance with these laws. The City in this case argued that it was exempt from the ordinary rules, because the lands were reclaimed tidelands, which are subject to many different laws. The Court of Appeal rejected this contention.
BROKER OWED COMMISSION THOUGH SALE CANCELLED, AND
LISTING AGREEMENT HAD NO END DATE
Schaffter v. Creative Capital Leasing Group, LLC (August 11, 2008)
--- Cal.Rptr.3d ----, 2008 WL 3274444 (Cal. App., 4 Dist.)
A speculator backed out of contracts to buy condominiums, because they did not appreciate in value. He owed the broker a commission, because he had defaulted. The buyer and seller had agreed to cancel the contracts; the Court found this irrelevant to the broker. The listing agreement was to end “when escrow closed.” This violated the prohibition in Business & Professions Code Section 10176 upon listing agreements without a definite end date. The buyer cited Dale v. Palmer (1951) 106 Cal. App. 2d 663, that such contracts are void. The Court of Appeal declined to follow Dale but instead followed Wilson v. Stearns (1954) 123 Cal. App. 2nd 472 which held that whether such contracts are voidable in a particular case is a factual question. In this case, the issue had not been raised at trial, so the facts were not developed.
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