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VOLUME 11 | NUMBER 9 | SEPTEMBER 2016
 
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IN THIS ISSUE
 
Introductory Remarks
>
Recent Cases
>
 
Real Property Executive Committee:

SECTION OFFICERS

Chair
Susan J. Booth

First Vice Chair
Caroline Dreyfus

Second Vice Chair
Claire Hervey-Collins

Treasurer
Eric Altoon

Secretary
Misty Sanford  

Immediate Past Chair
Brant Dveirn  

Barristers Liaison
Christopher Bordenave

Section Administrator
Fatima Jones

 

EXECUTIVE COMMITTEE MEMBERS

Nedra E. Austin
Janna Boelke
James Earle
George Fatheree
Robert T. Flick
Daniel L. Goodkin
Owen P. Gross
Marybeth Heydt
Teresa Y. Hillery
Ben Howell
Laurence L. Hummer
Trudi Lesser
Kyle B. Marks
Beth Peterson
Linda E. Spiegel
Kelsey M. Thayer
Loretta Thompson
Seth Weissman

 

EMERITUS MEMBERS

Michael Bayard
Norm Chernin
Peter Gelles
Byron Hayes
Gordon Hunt
Bryan Jackson
Michael Klein
Mark Lamken
Gregg Loubier
Victor Marmon
O'Malley Miller
Donald Nanney
Gytis Nefas
James Richman
Ronald Silverman
Sarah Spyksma
Theresa Tate
Timothy Truax
Richard Volpert
Ira Waldman,
Pamela Westhoff
Norma Williams
Paula Reddish Zinneman

 
SUBSECTION CHAIRS

Commercial Development and Leasing
Marcia Gordon
Construction Law
Donna Kirkner
Finance
Jane Hinton
General Real Property
Rachel Sanders
Land Use Planning & Environmental Law
Brandon Ward
Title Insurance
Zi Lin

 

 

Introductory Remarks

Please let us know how we can better meet your professional needs for education, social networking, and other benefits of membership in our Section. We value your feedback.

Sincerely,
Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address: Teresa.Hillery@fnf.com


 
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Recent Cases
 
- Breach of Contract -

Property owner committed a bad faith breach of his contract with developer—whose obligation to close escrow on the property was contingent upon certain actions by owner—by, among other things, refusing to pay taxes on the property and to assist in securing lot line adjustments essential to the developer's ability to complete its proposed project, by negotiating to sell the property to someone else, and by offering the property to city, which trial judge properly characterized as a "scheme" and in such "complete derogation of any rights of [developer] and utterly without regard to the contract for sale of the subject property" that it "bordered on the unconscionable." Damages awarded developer were not excessive where the distinct circumstances of the transaction put them within "the expenses properly incurred in preparing to enter upon the land" and consequential damages, both made recoverable by Civil Code Sec. 3306.

Schellinger Brothers v. Cotter - filed Aug. 26, 2016, First District, Div. Two
Cite as 2016 S.O.S. 4394
Full text click here

 
- CEQA -

The real party in interest in a CEQA proceeding may recover costs incurred for the preparation of the administrative record when it is a prevailing party.

Citizens for Ceres v. City of Ceres (Wal-Mart Stores, Inc.) - filed Sept. 12, 2016, Fifth District
Cite as 2016 S.O.S. 4652
Full text click here 

Board of supervisors did not abuse its broad discretion under the Planning and Zoning Law by approving, as consistent with prior uses, a proposal by the owner of a religious retreat to erect storage tents for sacred texts, which had previously been printed onsite and shipped out of the country. Board did not violate CEQA by issuing a subsequent mitigated negative declaration, determining that erection of storage tents would not significantly increase risk of wildfires. There was substantial evidence of the adequacy of mitigation measures, including covering the tents with a membrane meeting applicable fire protection standards, making the tents from self-extinguishing fabric framed by steel, installing heat detection and fire sprinkler systems and a backup generator, and maintaining a fire engine onsite.

Coastal Hills Rural Preservation v. County of Sonoma (Petranker) - filed Aug. 31, 2016, First District, Div. One
Cite as 2016 S.O.S. 4507
Full text click here > 

 
- Construction -

Final approval of area plan amendments sought by retailer after trial court halted construction of its store rendered moot the appeals and cross-appeal from the trial court's writ of mandate. Whether, and to what extent, the amendments require modification of the portion of the writ of mandate that required the cessation of all construction activities at the site is properly addressed by the trial court in the first instance.

La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles (Target Corporation) - filed Aug. 16, 2016, Second District, Div. Seven
Cite as 2016 S.O.S. 4207
Full text  click here >

 
- EPA -

United States Environmental Protection Agency did not act arbitrarily or capriciously in granting a prevention-of-significant-deterioration permit for construction of a new biomass-burning power plant at permittee’s lumber mill. Because EPA properly took the requisite hard look at permittee’s proposed design and the key purpose of burning its own biomass waste, EPA reasonably concluded that consideration of solar or increased natural gas would disrupt that purpose and redefine the source. EPA’s determination that supplemental greenhouse gas "best available control technology" analysis satisfied Clean Air Act was entitled to judicial deference because EPA was largely relying on its own guidance, acting at the frontiers of science.

Helping Hand Tools v. United States Environmental Protection Agency - filed Sept. 2, 2016
Cite as 2016 S.O.S. 14-72553
Full text click here > 

EPA's determinations that control measures in state implementation plan, adopted under Clean Air Act for airborne particulate matter around Maricopa County, Arizona, did not need to be updated. Exceedances were exceptional events that were excluded from consideration under the EPA's regulation and guidance documents, and were entitled to judicial deference. EPA's determination that the SIP complied with the act's "contingency measures" requirement was contrary to the plain language of 42 U.S.C. Sec. 7502(c)(9), and thus not entitled to deference, because the described measures had already been implemented. The statute clearly defines contingency measures as measures that will be taken in the future.

Bahr v. United States Environmental Protection Agency - filed Sept. 12, 2016
Cite as 2016 S.O.S. 14-72327
Full text click here >   

 
-Homeowner’s Bill of Rights -

The 2013 Homeowner's Bill of Rights does not provide a cause of action for injunctive relief for a violation of Civil Code Sec. 2924(a)(6), requiring an entity initiating a foreclosure be legally entitled to do so. The availability of injunctive relief under the HBOR is governed exclusively by Secs. 2924.12(a)(1) and 2924.19(a)(1), neither of which authorizes a court to enjoin a violation of Sec. 2924(a)(6).

Lucioni v. Bank of America - filed Sept. 7, 2016, Second District, Div. Five
Cite as 2016 S.O.S. 4634
Full text click here > 

 
- Lease Renewals -

Law of state where property is located should be used as federal common law applicable to a dispute as to whether Postal Service strictly complied with option requirements for lease renewals.

United States Postal Service v. Bellevue Post Office LLC - filed Sept. 9, 2016
Cite as 2016 S.O.S. 14-35100
Full text click here 

 
- NEPA -

National Indian Gaming Commission did not violate the National Environmental Policy Act when it approved tribe's gaming ordinance for a casino without first conducting a NEPA environmental review. Even if the approval constituted "major federal action" within the meaning of NEPA, the commission was not required to prepare an environmental impact statement because there was an irreconcilable statutory conflict between NEPA and the Indian Gaming Regulatory Act, which requires the commission to approve or disapprove an ordinance within a timeframe that is too short for the preparation of an EIS

Jamul Action Community v. Chaudhuri - filed June 9, 2016, amended Aug. 19, 2016
Cite as 2016 S.O.S. 15-16021
Full text click here > 

 
- SMARA -

Possibility of increase in selenium deposits during the term of reclamation plan for quarry project did not cause plan to violate the Surface Mining and Reclamation Act. The plan included strategies that would ultimately reduce the amount of the quarry's release of selenium. Reclamation plan amendment that did not specifically mention an endangered species of frog living downstream from quarry, and that allegedly did not protect that species from selenium released by the reclamation work itself, complied with the wildlife provisions of SMARA. Attached assessment stated that because the frog was not found within the reclamation plan amendment boundaries, it would not be directly affected by the reclamation activities, but the assessment also provided protective measures such as pre-construction surveys and daytime-only work to limit the potential risk of harming the frog if it swam upstream into the affected area.

Bay Area Clean Environment v. Santa Clara County (Lehigh Southwest Cement Company) - filed Aug. 31, 2016, Sixth District
Cite as 2016 S.O.S. 4500
Full text click here > 

 
 
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