Marin Independent Journal
By Richard Halstead,
POSTED: 03/30/18, 5:49 PM PDT | UPDATED: 6 DAYS AGO
18 COMMENTSThe county has agreed to pay $89,935 in legal fees following a ruling that the county improperly sued a lawyer who was seeking county documents under the California Public Records Act.
Edward Yates, a Larkspur lawyer, said the county executed the settlement agreement March 14.
Yates was sued by the county in June 2017 after he sought public records on behalf of Friends of West Tam Valley, a community group that focuses on land use and development issues.
“The cross-claim, which was essentially a separate lawsuit, was completely frivolous and merely an attempt to deter my clients from enforcing their rights to obtain public records from the county,” said Yates in a statement.
Marin County Counsel Brian Washington said, “I’m not going to relitigate those issues here. That is why we settled the case. At best you could say Yates’ description of the litigation is highly incomplete.”
Lee Budish, co-chairman of Friends of West Tam Valley, said her group “started this effort in an attempt to understand the scope and possible environmental impacts of a potentially large scale development in Tam Valley.”
Friends of West Tam Valley became concerned after an application was submitted to the county’s planning division in February 2016 seeking a grading permit to build a single-family house on a paper street on Alta Way in Tamalpais Valley. A paper street is a road or street that appears on maps but has not been built.
In an April 21, 2016, letter to Brian Crawford, director of Marin County’s Community Development Agency, the Tam Design Review Board also expressed concern that the extension of Alta Way could result in the development of nine additional homes in the vicinity. The letter said the project applicants — Alta Way Partners LLC and Portage LLC — owned 10 parcels along paper streets in the area.
“We saw it as an attempt to get around the kind of scrutiny it would receive if it was in fact a subdivision,” said Design Review board member Alan Jones.
Daniel Chador, the Alta Way project manager, said he represents six or seven people who own the 10 lots along the Alta Way paper street.
“These are people who have been paying taxes on these properties, and they want to be able to do something with their lots,” Chador said.
The Board of Supervisors approved the hiring of an independent consultant to prepare a study of the Alta Way extension request a year ago, and that study has not yet been concluded.
Friends of West Tam Valley made requests for county records in late 2016. Some documents were produced, but others requested were not. Yates was then hired and sought the additional records unsuccessfully for five months before suing to obtain them.
The county initially defended the suit and in June 2017 sued Yates, accusing him of a variety of ethical breaches. But Marin Superior Court Judge Paul Haakenson eventually ruled in Yates’ favor in an anti-Strategic Litigation Against Public Participation (anti-SLAPP) motion. A SLAPP suit is a lawsuit designed to intimidate and silence critics. They have been made illegal in a number of jurisdictions on the basis that they infringe on freedom of speech.
Washington said, “We did have to settle the litigation because we indeed had not produced documents that we ended up determining needed to be produced.”
Washington said there was a “coordination issue” due to poor communication between the county’s Community Development Agency and its Department of Public Works.
“There was also an issue where different departments in the county had different practices in producing documents,” Washington said.
The Community Development Agency supplied the required public records and Public Works did not.
Yates said the county offered to settle the suit for the public records prior to Haakenson’s ruling on the anti-SLAPP motion but at that time was still refusing to pay the fees of his personal attorney. Yates said little of the information obtained through the public records request proved useful.
He said, “That is the ironic part of all this.”
Fran Nunez • 7 days ago
This type of behavior continues in this County because there is NO Accountability, NO Consequences. Thanks to all who went all the way to expose this particular instance. Special thanks to Marin Superior Court Judge Paul Haakenson . . too bad that it is the taxpayers that end up paying for the Supervisor's (Deciders) bad behavior.
Way-not • 7 days ago
"The Community Development Agency supplied the required public records and Public Works did not."
SO--What county bureaucrat pays the taxpayers back the $90 K pissed away because someone didn't know their job?
El Chino • 7 days ago
The County wasted $90k of taxpayers money, period!!!
The neighborhood impacted by this developer juggernaught has faced obstacle upon obstacle in requesting our legal right to "PUBLIC DOCUMENTS"
Steve Edgett • 7 days ago
In microcosm, this is another example of "the best government money can buy". Tam Valley is an area largely developed without modern codes, however, the codes created since the development of a 1919 map allowing the development of these lots are legitimate. Why would the county fail to act on behalf of its residents? For the individual homeowner, the county gives no relief, but where a developer marches in, suddenly the same officials want to do all they can to be "helpful". And why would the county sue someone who wanted nothing more than to see public records?
Roger • 8 days ago
One of you brave souls here need to write a letter to the IJ editor about this ...voicing concern about the county suing its very citizens when they simply request information.
bob silvestri • 8 days ago
True to form, the IJ coddles the County and presents the story as a false equivalency and downplays what really happened. SLAPP suits are not just illegal in "some jurisdictions." They are illegal in the State of California! At best you could say Brian Washington's description of the litigation is "highly incomplete."
For the full story go to:
Toni Huffines • 8 days ago
The Supervisors are responsible for this SLAPP suit and the resulting settlement. They approved the suit in one of their closed sessions. The settlement doesn’t even reflect the wasted time and money expended by County Counsel.
Start by getting rid of Judy Arnold. She’s a stale leftover from an earlier, less enlightened, time.
Fran Nunez Toni Huffines • 7 days ago
Yes, they are the deciders . . and Supervisor Connolly is an Attorney, with a legal background . Disgusting bully behavior . . and eventually .. even when they "lose", "they" don't lose . . .because there is NO accountability . . and the taxpayers pay . . . so their disgusting bully behavior will continue . .
Roger Toni Huffines • 8 days ago
Toni, yes ...I suspect Dick will ask Judy Arnold that question in the upcoming debate against candidate Toni Shroyer.
hillclintgonegirl • 9 days ago
The county has agreed to pay $89,935 in legal fees following a ruling that the county improperly sued a lawyer who was seeking county documents under the California Public Records Act...Yates was sued by the county in June 2017 after he sought public records. Marin Superior Court Judge Paul Haakenson eventually ruled in Yates’ favor in an anti-Strategic Litigation Against Public Participation (anti-SLAPP) motion. Gee, who to believe, the judge or the hack Marin County Counsel Brian Washington who said, "At best you could say Yates’ description of the litigation is highly incomplete.”Since he brought the baseless suit which cost the county almost $100,000 he should pay it and be fired.
Roger hillclintgonegirl • 8 days ago
Hill.girl, yes, fire Brian Washington. Send a message to the deep state. But sadly, it won't happen. The supervisors are just puppets of the govt employee unions who pay for their campaigns.
John Parulis • 9 days ago
This is part of a wasteful pattern by County council. The supervisors have the duty to look into this further and make some changes in the legal representation of the county. Here's a link to Community Venture Partners who ran into a similar problem. https://marinpost.org/blog/...
Eustace Baggs • 9 days ago
Would be nice to know the detail in the county's lawsuit. Shameful use of taxpayer money. Whoever recommended the lawsuit should be publicly identified and explain the reasoning. Then pay fo it from his pension.
bob silvestri Eustace Baggs • 8 days ago
Please see my comment above.
Roger bob silvestri • 8 days ago
Bob, do you think the IJ will do an editorial on this?
bob silvestri Roger • 8 days ago
That would be a surprise.
Roger bob silvestri • 21 hours ago
Bob, IJ editor did it today.
socialismisevi! • 9 days ago
THOSE WHO MADE THE DECISION TO MAKE THAT DENIAL.......
$$$ OUT OF THEIR OWN POCKETS
FROM PRESS RELEASE BY FRIENDS OF THE GUALALA RIVER
The “Dogwood” Timber Harvest Plan (THP), an environmental review of the first major logging of the mature redwood forest on the sensitive floodplain of the Gualala River, has been sent back to CAL FIRE for a full revision. The plan is bound for a fourth cycle of public comments. CAL FIRE, the California Department of Forestry and Fire Protection, is the state agency that regulates commercial logging.
On January 25, 2017, Judge Renee Chouteau of Sonoma County Superior Court made an unexpected ruling to remand the entire Dogwood THP ack to CAL FIRE to comply with the California Environmental Quality Act (CEQA) and Forest Practices Act (FPA).The unanticipated early court decision to require correction of the THP’s incomplete, deficient treatment of many cumulative environmental impacts vindicates environmental organizations and many local residents who commented on and protested the Dogwood logging plan.
“We have in effect already prevailed on one CEQA issue” said Edward Yates, attorney for the plaintiffs Forest Unlimited, Friends of Gualala River, and California Native Plant Society.
Last year, the California State Legislature amended CEQA for projects in certain areas classified as 1) infill and transportation priority areas and 2) for transportation priority projects. SB 743 also streamlined CEQA for the Sacramento Kings’ arena and though the author is concerned about the number of center DeMarcus Cousin’s technical fouls, this article will not address those issues or the SB 743 revisions regarding mega-projects.
Codified at Pub. Res. Code Sections 21099, 21155 and 21155.4, Senator Steinberg’s SB 743, is an attempt to mollify long term critics of CEQA, aka “developers,” and help implement SB 375, which is the state blueprint for reducing climate change. The developer and infrastructure community wanted more substantial changes but were only able to get some of their wish list, by attaching the revisions to a bill streamlining CEQA for the Kings’ arena.
Section 21099 – LOS; Parking and Aesthetic Impacts. The changes to CEQA in Section 21099 are aimed at allowing easier residential and commercial development in urban infill areas that are within “transit priority areas (TPAs).” Infill is essentially a previously developed lot or one surrounded by development and a TPA is an area within a half mile of a major transit stop – which can be bus, multi transfer area, train, or ferry station - or near a major transit corridor.
The two major changes in Section 21099 follow:
These changes will substantially assist developers in avoiding CEQA challenges for projects in those designated areas. LOS refers to congestion at traffic stops and often requires extensive traffic modeling and almost always results in findings of significant impact in urban areas with no additional capacity for parking. Even in suburban areas, LOS is criticized as not being an accurate criteria for assessing congestion; some observers believe LOS is one of the key barriers to redevelopment and smart growth. Eventually, the CEQA Guidelines will be updated to establish new significance criteria for traffic congestion and thus congestion will not be eliminated from CEQA review.
It is unclear to this author whether local agencies can voluntarily hold developers to higher standards. Section 21099(e) states that "This section does not affect the authority of a public agency to establish or adopt thresholds of significance that are more protective of the environment." This subsection seems to conflict with the rest of the Section 21099.
Sections 21155, 21155.2, 21155.3 - “transit priority projects.”
These sections establish an alternative impact review process for development projects termed “transit priority projects.” This exemption may sate the appetites of developers because it does not require a circulation and comment period. But these projects should still be subject to judicial challenge. Further, the procedural study requirements are just as onerous as an EIR and in many ways more complicated and I see this process have very limited use.
Section 21155.4 - Exemption for Mixed Use Projects in TPAs.
The other general provision in SB 743 is a much more serious streamlining of CEQA but Section 21155.4 has relatively stringent requirements. This exemption only applies to:
But Section 21099 will be invoked and will have a substantial impact on citizen’s power to control their own communities.
 "Infill site" means a lot located within an urban area that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses. (§21099(a)4).)
 “Transit priority area” means “an area within one-half mile of a major transit stop that is existing or planned, if the planned stop is scheduled to be completed within the planning horizon included in a Transportation Improvement Program adopted pursuant to Section 450.216 or 450.322 of Title 23 of the Code of Federal Regulations.”
Benson v. Marin County Assessment Appeals Board (No. A134340, First Dist. Sept. 27, 2013)
In Benson v. Marin County Assessment Appeals Board, the County Assessor ultimately prevailed in a property tax case that hinged on whether a change of ownership under Prop 13 had occurred. Where change of ownership occurs, counties can reassess and raise property tax.
A property in Homestead Valley in Mill Valley was recorded as a "family joint tenancy" between Peter Mikkelsen and his mother Dagmar. When Mrs. Mikkelsen died in 1997, Peter created a family joint tenancy with his brother James Mikkelsen. The two brothers owned the property until 2007, when James filed papers granting himself "an interest as a tenant in common."
Noting the change of title, the Marin County Assessor opined that a transfer of ownership had occurred and reassessed the property’s value, increasing its tax basis. Mikkelsen contended that a tenancy in common was simply an “ephemeral” change from joint tenancy and he should still be able to use the previous basis he enjoyed in joint tenancy. Mikkelsen cited a general section of the Revenue and Taxation Code, Section 60(a), which had a broad definition of what could constitute a change in ownership and the Marin County Assessment Appeals Board and Marin County Superior Court Judge Faye D’Opal agreed with Mikkelsen.
However, this last September, the 1st District Court of Appeals disagreed, citing the complex regulatory scheme and specific reference to Family Joint Tenancies in Sections 61, 62 and 65 - and the extensive legislative history behind SB 1260’s interpretation of Prop 13. The court concluded that James’ termination of his family joint-tenancy interest and creation of a tenancy in common was not an ephemeral transfer and thus the reassessment was properly triggered. The opinion concludes that, “[t]he price for that property tax break, so to speak, was a change in ownership when the family joint tenancy was terminated." This month, the California Supreme Court refused to hear the case, thus finalizing the court of appeal’s decision.
Two recent California appellate court decisions on easement property rights show the need to : 1) actively pay attention to the nature of your easement; and 2) act assertively and reasonably to accommodate your neighbor's easement rights. Rye v. Tahoe Truckee shows the importance of being careful to protect your property interests by not letting your easement interest lapse. Dolnikov v. Ekizian demonstrates the costs of refusing to act when a reasonable request is made to improve an easement over one's property.
Use it or Lose it #1: Don’t abandon an property interest by letting it lapse.
Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (No. C067970, Third Dist. Dec. 16, 2013), is a tale of a dispute between a garbage company and a wood chipping entity in one of the world’s most expensive and beautiful places, Incline at Tahoe. The dispute regarded an easement granted by plaintiff’s (Rye) predecessor to defendant Tahoe Truckee. The easement was for the parking of Tahoe Truckee’s garbage trucks and storage of garbage bins. Tahoe Truckee had reserved an easement for “"easement for parking, ingress, egress, utilities and storage”
The language then, was not clear as to the extent of the easement and the two maps that had been recorded were not consistent. For 10 years, Tahoe Truckee had only used a paved portion of the potential easement area. When Tahoe Truckee attempted to assert control over additional areas arguably within the original easement, the plaintiff contended that Tahoe Truckee had essentially abandoned the additional area by not using it. The Court of Appeals agreed with the plaintiff. “In this case, there is no clear indication of an intention to extend parking and storage to all of the area subject to the easement ….. and the only evidence of the intention of the parties regarding the use of the easement is past usage and that was confined to the paved area….”
To add insult to injury, the court also ruled against the defendant regarding the validity of a lease for the same area. After the easement had been granted, the plaintiff’s predecessor and Tahoe Truckee entered into a lease for an area that was arguably larger than the easement. But Tahoe Truckee never used the area identified under the lease, nor did it pay taxes on the property as set out in the lease. The court held that “in this case the leased area was never used by Tahoe Truckee, under a claim of right as a tenant under color of the lease, for the entire period from its inception” until the plaintiff acquired the property. The court’s ruling meant that Tahoe Truckee was limited to the historic use of the paved area.
In Dolnikov v. Ekizian (No. B226675, 4th Dist. Dec. 2013), the 4th District addressed whether a servient tenant who impeded the dominant tenant’s efforts to reasonably repair and manage its easement could be held liable for interference with the easement. The dominant easement owner (Dolnikov) had been told by the City of Los Angeles that he needed to repair an access road to be able to add a second unit. Dolnikov then proposed grading and improving a retaining wall as necessary incidents of the easement for ingress and egress. The servient tenant (Ezikian) though would not play ball with Mr. Dolnikov and made a : (1) refusal to sign a covenant for community driveway; (2) refusal to sign a retaining wall permit; (3) demand for money in exchange for granting plaintiff rights she already possessed in the easement; and (4) statements that plaintiff lost her easement by creating the grading cut and burdening the easement.
Two trial court decisions found Ezikian’s actions unreasonable because Dolnikov was entitled to make the cut and build the wall in furtherance of her rights and her full enjoyment of the easement. Plaintiff acted reasonably in grading and seeking to install the retaining wall to prevent defendants' land from eroding onto the roadway.
The appellate court upheld. Even though Ezikian did not physically invade the easement, the court held that a refusal to sign documents, could constitute an interference with the easement. Defendants responded in supplemental briefing that the easement did not require them to sign either document and there is no legal authority for the contention that defendants' refusal to cooperate constituted an interference with plaintiff's use and enjoyment of the easement. But the court cited substantial case law that held that "Every easement includes what are termed 'secondary easements;' that is, the right to do such things as are necessary for the full enjoyment of the easement itself." (North Fork Water Co. v. Edwards (1898) 121 Cal. 662, 665-666.) A secondary easement can be the right to make "repairs, renewals and replacements on the property that is servient to the easement" (Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 43.
How the Last Supreme Court Takings Case Could Have a Big Impact in California and Why Many Commenters Missed It
Few issues get land use blawgs and legal pundits going like Supreme Court “takings” decisions based on 5th and 14th amendments. The recently decided decision, Koontz v. St. Johns River Water Management District, 570 U.S. ___; 133 S.Ct. 2586 (2013) falls into that category but many of the pundits missed the decision’s main impact in California. As some commenters have pointed out, Koontz does not change the landscape (sorry) for land use permitting by municipal agencies in California. But it does potentially provide some new leverage for some developers and arguably, some California cities, counties and special districts, when negotiating with state and federal regulators.
In Koontz, the Water District, noting the environmental impacts of Koontz’ land development proposal, denied Koontz’ permit after Koontz had rejected both: a) land dedication; and 2) fees for off-site land purchases proposed by the water district. The District then denied the permit. But the District didn’t bother to identify a connection between the applicant’s impacts and the off-site mitigation fees and Koontz sued, alleging the District had engaged in a “taking” of his property.
Previous Supreme Court decisions Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994) required that regulatory agencies establish a “nexus” and a “rough proportionality” between project impacts and "exactions," or the required dedication of land owned by an applicant. But it was not clear whether the Nollan Dolan decisions applied to an agency’s demand for compensatory fees to pay for off-site mitigation. All nine justices agreed with the petitioner on the first issue in the case – denial of land development permits is also subject to Nollan Dolan. On the second issue, the court’s narrow majority held that Nollan Dolan principles do apply to monetary fees exacted by government agencies for mitigation.
Koontz makes it clear that for case-by-case exactions, agencies must provide a “nexus” and a “rough proportionality” between the project impact and the fee. The Koontz majority left some uncertainty as it did not make it clear whether its decision applies to legislatively enacted fees. (See 133 S Ct. at 2608 (Kagan, J dissenting.) But wait, you say, don’t agencies in California already have to make connections between impacts and mitigation fees? Yes. But only local agencies.
A California Supreme Court case, Ehrlich v. Culver City, 12 Cal.4th 854 (1996) required local agencies to support their case by case fee exactions by documenting the nexus and proportionality of the fees. The Mitigation Fee Act (Government Code section 66000, et seq.) also required that local agency legislatively enacted fees be subject to nexus and rough proportionality requirements. (Government Code section 66001, Garrick Development Co. v. Hayward Unified School Dist., 3 Cal.App.4th 320, 336 (1992).) Local agencies regulating land use in California now routinely prepare “nexus studies” for ad hoc and legislatively enacted fees, so Koontz does not change that.
So does Koontz do anything in California? And what are so many pundits missing about Koontz’ impact in California? Yes, Koontz arguably shifts the standard of review of how a judge will view a takings case, meaning planners should: 1) make sure they adequately document all fee calculations; and 2) not burden one applicant with a large share of off site land purchase or infrastructure development costs. But good local government planners have been doing this for years.
The larger change has to with the fact that Federal regulatory agencies, such as the U.S. Fish and Wildlife Service and California statewide regulatory agencies such as the California Dept. of Fish and Game are not subject to the Mitigation Fee Act. And these agencies now have even more authority to require budget busting endowments when assessing mitigation fees. (Government Code sections 65965-65968.) However, after Koontz, state and federal regulators will arguably have to justify their imposition of mitigation fees on applicants for Endangered Species Act, pollution discharge, and wetland fill permits. Therefore, once applicants prepare a nexus study, if regulators want higher fees than those proposed by the applicant, the regulator will have to comply with language in Dolan and make an “individualized determination that the required dedication is related both in nature and extent to the impact.”
Why did so many pundits miss this point? Probably because most legal commenters advise private developers seeking local land use permits. Fewer legal commenters represent developers or public agencies working in sensitive habitat areas; biological services consulting companies often do this regulatory permitting work.
At this point, private developers in California are accustomed to the Mitigation Fee Act and thus have experience in calculating, debating and negotiating exaction fees. But those same developers have learned how expensive it is to develop in in waterways, wetlands and areas designated as “critical habitat” and often avoid those areas. They will now be able to use this experience in dealing with state and federal regulators who have to comply with Koontz.
On the other hand, public works agencies, such as flood protection districts, rarely have needed to get permits from local government, so they have not prepared their own nexus studies. But these agencies should consider adopting this tool because Koontz could aid municipalities dealing with those same regulators. Even though Constitutional "takings" are only from private property, local agency applicants could certainly argue that regulators should not regulate them more harshly than private developers. While Koontz may not provide direct authority to municipalities negotiating development fees with regulatory agencies, it should at least provide an argument that regulators should provide the same kind of individualized determinations to local agencies that they do to private property owners.
Ed Yates, Marinlandlaw.com
Marin Voice: Engaging the public helps housing decisions
By Ed Yates
Guest op-ed column published in the Marin Independent Journal on November 4, 2013
Posted: 11/04/2013 07:50:00 PM PST
I HAVE BEEN STRUCK by the passion regarding the affordable housing and land-use issues now facing Marin County communities.
As a deputy county counsel who was lead legal advisor for Regional Housing Needs Assessment decisions in Santa Barbara County, I was in the thick of similar debates over affordable housing just a few years ago.
In Santa Barbara, like Marin, the north part of the county had traditionally been more supportive of growth than the affluent south.
But things change, including people's views of increased density and low income housing growth. Many residents of the north part of Santa Barbara County had "had enough," and wanted the entire county to share more equally in placement of such growth.
This debate over where housing growth goes is an old one and is reflected in state law and in fact, in all of American land use planning and law, as the concept of municipalities' "fair share" responsibilities for affordable housing.
California's Legislature has been more active in the fair share/low income housing arena than most states by directing, incentivizing and even punishing cities and counties regarding local housing element, transportation funding and air quality regulations.
Thus, many of the housing issues that are being debated today in Marin, like those in Santa Barbara, are related to state mandates and formulas, including government code provisions that provide developers with density-bonus rights regarding low-income housing construction.
But municipalities also have to move very carefully regarding concentrating land use and housing to meet their housing numbers.
Cities and counties must be aware that neighbors get more bites of the housing location apple because recent case law confirms that cities must contemplate a resolution of any inconsistency between RHNA projects and general plans.
California is growing and while Marin is slated for less growth than other regions, Marin communities will have to decide the best way to accommodate this growth.
What I found in the past was that better communication by municipalities regarding housing law mandates resulted in less rancorous, more focused debate. Outreach by agencies about which state laws and regulations are more stringent allows residents and project planners to focus on those areas where city councils or boards of supervisors do have policy discretion.
This allows agencies and community members to narrow the scope of the debate and reduce the time and resources needed to achieve consensus on how our communities are shaped.
Ed is a land use and property lawyer in San Francisco California. Ed previously served as a Peace Corps Volunteer, Deputy County Counsel in Santa Barbara and Adjunct Professor of Land Use Law at Golden Gate University.