Homeowner Associations and Members Not Necessarily Bound By Arbitration Provisions in CC&Rs or in Related Purchase Agreement Where Developer is Initial Declarant
Pinnacle Museum Tower Association v. Pinnacle Market Development (US) LLC, No. D055422 (4th Dist. July 30, 2010)
By Michael Wilmar and Aaron Kleven
Homeowners and homeowner associations are not necessarily bound by arbitration provisions in a declaration of covenants, conditions and restrictions, or in a related purchase agreement, where the developer is the initial and only declarant. That is the implication of a July 30th ruling of the Fourth District of the California Court of Appeal. In Pinnacle Museum Tower Association v. Pinnacle Market Development (US) LLC, a homeowner association brought a construction defect suit on behalf of itself and its members for damage to common areas. The developer of the condominium project attempted to block the suit, claiming the plaintiff was bound to an arbitration provision recorded in the project CC&R's. It argued the provision committed the Association to resolve all construction disputes through arbitration and waived the Association’s right to a jury trial. The purchase and sale agreements signed by the individual condominium owners also contained a jury waiver and a provision compelling owners to comply with the arbitration provision in the CC&R's. But the court concluded that the provision in the CC&R’s did not constitute an agreement sufficient to wave the Association's constitutional right to a jury trial. And it found the corresponding provision in the purchase and sale agreement unconscionable and unenforceable against the individual owners.
Three-Year Statute Of Limitations Applies To Inverse Condemnation Action
William Bookout v. State of California ex rel. Department of Transportation, 2d Civil No. B214906 (2nd Dist., June 28, 2010).
By Michael Wilmar and Alex Merritt
In William Bookout v. State of California ex rel. Department of Transportation, the Second District Court of Appeal provided important guidance on whether an inverse condemnation action is subject to a three-year or five-year statute of limitations, and whether annual flooding constitutes a continuous or permanent nuisance.
Coastal Commission's No Substantial Issue Determination Will Be Upheld Even If Project Technically Not Consistent With LCP
Hines v. California Coastal Commission, No. A125254 (1st Dist. June 17, 2010)
By Michael Wilmar and Alex Merritt
In Hines v. California Coastal Commission, the First District Court of Appeal upheld the Coastal Commission’s determination that an appeal raised no substantial issue under the California Coastal Act, and went so far as to state in dicta that even if a development were technically inconsistent with a Local Coastal Program ("LCP"), the Commission could still reject an appeal of the approval of that development as not presenting a substantial issue.
Under CERCLA, "Owner" Means Owner When Cleanup Costs Are Incurred, Not When Reimbursement Is Sought
California Dep't of Toxic Substances Control v. Hearthside Residential Corp., No. 09-55389 (9th Cir. July 22, 2010)
By Betsy McDaniel and Adam Bailey
On July 22, the Ninth Circuit Court of Appeals held that under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," commonly referred to as the "Superfund" law), the owner of a contaminated site when cleanup costs are incurred is the "current owner" for liability purposes. The decision will provide clarity to state agencies or other entities that engage in the remediation of contaminated lands. In the event that a landowner refuses to accept responsibility for cleanup, the entity that performed the cleanup can easily determine whom to sue for repayment.
California Endangered Species Act Prohibits State Agencies From Taking Threatened and Endangered Species Without Permit Authority
Kern County Water Agency v. Watershed Enforcers, No. A117715 (1st Dist. June 17, 2010)
By Keith Garner and Alex Merritt
Last month the California Court of Appeal for the First District held that the California Endangered Species Act ("CESA") prohibits a state agency from taking threatened or endangered species without proper permit authority. In reaching this conclusion, the court resolved an interesting question of statutory construction, finding that a state agency is a "person" for purposes of CESA. The decision also indicates that courts will construe CESA liberally to promote the Legislature's goal of conserving threatened and endangered species.
County Approval of Conditional Siting Agreement Not A Project Approval Under CEQA
City of Santee v. County of San Diego, No. D055310 (4th Dist. June 7, 2010)
By Michael Wilmar and Alex Merritt
Last month the California Court of Appeal for the Fourth District provided important guidance on the issue of when approval of an agreement affecting a development constitutes approval of a “project” that requires review under the California Environmental Quality Act ("CEQA"). In City of Santee v. County of San Diego, the Fourth District held that a siting agreement between the County of San Diego and the California Department of Corrections and Rehabilitation ("DCR") for a state prison facility did not commit the County to a definite course of action, and therefore did not constitute a project approval requiring CEQA review. The court reached this conclusion after noting that the agreement did not preclude any alternatives or mitigation measures, and that implementation of the agreement was contingent on a number of factors, including future environmental review.
Supreme Court Says Florida's Beach Preservation Activities Did Not Infringe Shoreline Property Rights; Justices Scrap Over Role Of Courts In Property Takings
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., 560 U. S. _(June 17, 2010)
By Michael Wilmar & Aaron Kleven
On June 17, 2010, the Supreme Court unanimously ruled that the State of Florida did not infringe on private property interests by engaging in a beach preservation effort. But though the participating justices agreed on the decision (Justice Stevens did not participate), they disagreed sharply on a point of constitutional law underlying the complaint.
9th Circuit Upholds Critical Habitat Designation for Mexican Spotted Owl
Arizona Cattle Growers' Ass'n v. Salazar, No. 08-15810 (9th Cir. June 4, 2010)
By Robert Uram, James Rusk & Alex Merritt
The Ninth Circuit Court of Appeals this month decided two key issues related to the designation of critical habitat for species protected under the Endangered Species Act ("ESA"): (1) what constitutes an "occupied" area for purposes of designating critical habitat; and (2) the proper approach to analyzing the economic impacts of a critical habitat designation. The Ninth Circuit ruled for the Fish & Wildlife Service (“FWS”) on both issues, deferring to the agency's interpretation of "occupied" and approving the agency's use of the "baseline" approach.
9th Circuit Upholds Corps Permit and Biological Opinion
Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363 (9th Cir. June 1, 2010)
By Robert Uram, Keith Garner & Brenna Moorhead
In Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363 (9th Cir. June 1, 2010), the Ninth Circuit Court of Appeals affirmed that it is appropriate for the Corps to consider an applicant’s project purpose, and that an area of a species’ critical habitat can be destroyed without appreciably diminishing the value of the species’ critical habitat overall.
Mitigation Fee Act May Not Require Specific Identification of New Facilities
Home Builders Ass'n of Tulare/Kings Counties v. City of Lemoore, No. 07C0185 (5th Dist. June 9, 2010)
By David Lanferman
On June 9, 2010, a panel of the Court of Appeal for the Fifth Appellate District rejected challenges by a builders association to six out of seven "development fees" recently adopted by the City of Lemoore. The Mitigation Fee Act (Gov. Code §§ 66000 – 66025) requires that a local agency seeking to establish or impose development fees to finance public facilities must "identify" the new public facilities purportedly justifying the fees. Two justices held that the City had satisfied these statutory requirements by adopting a consultant's report that listed examples of the "types" of new facilities that the City may in the future decide to construct to accommodate growth from new developments, but the third justice wrote separately to question whether such lack of specificity complied with the statute.