May It Please The Court
Quote of the Day - Life is a bridge. Cross over it, but build no house on it.
Up Next: Condemnation Action Against California Coastal Commission?
You may not have known it, but the reach of the California Coastal Commission goes inland four-and-one-half miles (maybe even five) from the ocean and it can unilaterally designate environmentally sensitive habitat areas and prevent development.
Since no one else knew it before either, let's get to the why.
Milos and Trisha Douda filed with the CCC for a coastal development permit to build their home. Instead, they found their property contained an environmentally sensitive habitat area not previously designated and their proposed home would impair scenic and visual resources.
It was a tough day in Santa Monica.
Up in the hills above Mulholland drive, some four years ago, the Doudas originally wanted to build and applied in 2003 for a two-story, 7,258 sq.ft. single-family home, three-car garage & studio, pool, driveway, septic system, and landscaping, with 12,000 cu.yds. of grading and 800 cu.yds. of export. That application was postponed, according to CCC records.
A month later, the Doudas came back to the CCC with a scaled-back 5,804 square foot, 35-foot high, two-story single family residence, a 1,092 square foot garage, a septic system, and a pool and spa.
They needed a permit from the CCC. Unfortunately for the Doudas, the CCC staff recommended denial of their second permit application. The Coastal Commission staff believed the permit was inconsistent with the local coastal plan and since the property had coastal sage scrub and chaparral and was, therefore, an environmentally sensitive habitat, and not conducive to such invasive development.
The Commissioners voted 8-0 against approval of the second application.
When they were before the CCC, the Doudas did not object to the Commission's authority to protect scenic and visual resources in the coastal zone. Consequently, the Doudas failed to exhaust their administrative remedies and lost that point.
Finally, since the Los Angeles County land use plan originally did not designate the Doudas' property as environmentally sensitive, but the Commission still had the authority to make the designation under the LA plan.
The Commission made the designation of the Doudas' property as environmentally sensitive.
The long and short of this case is a bit hard to predict. Since the Doudas did not raise objections at the hearing, then they may still have the ability to get a permit, but six years later you have to wonder why they just didn't reapply. If the CCC denies the Doudas' permit application in its entirety, then the CCC has to buy the property because it will have been inversely condemned. Inverse condemnation occurs when a government agency prohibits development of a property.
When the government allows a reasonable use of the land, say in this instance a 2,500 square foot, 15-foot high, one-story single family residence, a 500 square foot garage, a septic system, and a small pool and spa on a portion of the property not visible from the road and on a portion of the property where there's no coastal sage scrub or chaparral, then there's no inverse condemnation.
The facts reported in the appellate court decision are insufficient to tell whether my wild guess is even accurate, but the CCC likely doesn't want to buy a multi-million dollar property and then designate it as open space. We haven't seen the last of this case, but it's certainly a conundrum at this point.
How To Make Your Website And Blog Comply With The Americans With Disability Act
Skye Kilean writes All Access Blogging, showcasing how to make your website and blog accessible to readers and listeners with disabilities. It wasn't readily apparent to me when I first looked into it, but there are many things you can do to bring your site into ADA compliance, or at least make it easier to use.
First, however, you should realize there's no ready set of easily understandable guidelines for ADA compliance. You can purchase Watchfire / Bobby, a product from IBM to check your site, or you can give it a free checkup with Cynthia Says,TM a web program from the International Center for Disability Resources on the Internet, or ICDRI for short.
Even if you do test it, your web programmer will likely be the only one able to correct your site, unless you're a do-it-yourselfer. You will, however, be able to tell whether your site is compliant or needs more work.
Skye's blog gives some great tips on compliance, and it's worth a full read. Plus you just might run into this interview on her blog, which give some tips on how we do it here. Even after all the work we've done, Cynthia reports we still have to make more progress.
Back to the drawing board.
Lawyer 2 Lawyer Internet Radio Gets Sweet on Legal TechnologyIf you're not at the hotspot in legal technology, LegalTech New York, then you need to check out this week's show! Law.com blogger and host, J. Craig Williams, welcomes legal technology guru, Monica Bay, editor-in-chief of Law Technology News and host of "Law Technology Now," to discuss what's new in legal tech and explore the ins and outs of the world's leading legal technology trade show! My co-host Bob Ambrogi, will also give you a preview of his upcoming special report featuring interviews with the experts, straight from the floor of LegalTech!
BrideZilla And GroomKong Or Legitimate Lawsuit?
We all know the portmanteau BrideZilla, a combination of the two words Bride and Godzilla, shortened up to mean "monster bride." Once both are involved in the melee, I've invented a new portmanteau of King Kong and the complaining husband-to-be: "GroomKong."
You get to judge whether the Bride and Groom's complaint in this situation is valid, or whether they're a BrideZilla and GroomKong.
Take my friend Matthew Heller's identification of Bride Marcy Bassilla and Groom Sans Milbury, who paid more than $18,000 for their September 2007 wedding reception at the Embassy Room in the Granite Rose in Hampstead, New Hampshire. Kevin's great blog, OnPoint, describes the situation: "the Milburys claim they suffered lasting trauma after things got 'out of hand' at the other wedding party in the neighboring Treasure Room."
They had been advised by the Granite Rose that another reception would be in the adjacent room, but were assured they wouldn't "even know the other party was there," according to the Milburys.
Then from the wedding reception next door, "the trouble began with several 'completely intoxicated' female guests -- including the bride - 'vomiting all over the common bathroom' between the two banquet rooms and attacking the Milburys' female guests who were trying to use it." The Granite Rose, according to the complaining couple, let things get further out of hand, and then at around midnight, closed down both rooms at the same time.
Matthew continues, "A 'general melee' then ensued in the parking lot that, The Eagle Tribune newspaper reported, left 'numerous' people with cuts, bruises and black eyes. It took police from 12 local departments to break the brawl up." Did you catch the part where twelve local police departments were called out? It took 22 squad cars full of officers to break up the fight of between 50 and 100 wedding partygoers. Allegedly, one of the Milburys' female guests was threatened at knifepoint close to the time the brawl finally broke up around 2:50 a.m.
Houston, we have a problem.
Needless to say at this point, Mr. and Mrs. Milbury of Danvers, Massachusetts filed a lawsuit against the Granite Rose. According to the suit, "Marcy Milbury witnessed many of the events, particularly the parking lot melee" and is emotionally distraught. Worse yet, she has to relive the event again and again as her guests discuss it and exchange wedding photographs.
Plus, there's the newspaper account and all those police reports.
She and her husband want the Granite Rose to return the $18,175.09 they paid for their "disastrous wedding reception," according to the lawsuit, "for emotional distress" plus "multiple damages" and attorneys fees.
Matthew Heller points out in his commentary that New Hampshire, you have to show physical injury first in order to recover for emotional distress, which apparently did not happen to either the bride or the groom. Although I'm not admitted in the Granite state, I would have also sued the neighboring wedding party.
You be the judge. Who wins from whom, and how much?
I Voted, But The Candidate Of My Choice Didn't Get My Vote
Why? I'm one of those who registered I.P. - Independent Party. I don't want to be labeled. Well, labeled as a Democrat or Republican. I guess I'm willing to be labeled something, especially since that's the only way to vote. My preference would have been just be N/A or something else that's non-descript.
My preference doesn't matter to the government. It should, however, because my preferences, along with yours, elect the government.
The long and short of this issue falls on my inability to cast a vote for a viable candidate, such as McCain, Romney, Huckabee, Obama or Clinton. In fact, I can't even for an independent candidate.
My I.P. ballot only allowed votes to be cast for the Propositions on Indian gaming and some local transportation issues, highly relevant to the outcome of our society, unlike the Presidency.
The problem with not being able to vote for the candidate of my choice is that the election has passed me and the other independents by. Complaints to the Registrar of Voters was met with a simple solution - register with a particular party and fill out an ungodly long form, almost as long as my forearm.
No, I'm not kidding.
Registering with one party, however, defeats the purpose of being able to vote for who you choose.
Isn't that what voting is all about anyway? What am I missing here?
2/6/08 Update: The Brennan Center for Justice at New York University School of Law is part of a nationwide election protection team to help resolve any voting issues and questions that came up on February 5th. You can call 1-866-OUR-VOTE if you had any problems at your polling site.
Not Really The News Wanted Before Mardi Gras – Court Puts Damper On Party
Everyone Shares In The Blame, But No One More So Than The Corps
New Orleans has had its fair share of troubles, and perhaps a bit more than any big city deserves. While Katrina gave it one solid punch and the city took some more hard licks from its own residents, the government may have delivered one knock-out punch too many for it to survive. Not only did Michael Brown and FEMA fail to respond to the natural disaster in a timely matter and then with too little, too late wrapped in red tape, but a recent court decision also landed a heavy hit.
Federal District Court Judge Stanley Duval, Jr. issued his decision on a series of class actions filed against Louisiana's Enemy Number One, the United States Army Corps of Engineers: they're not liable to the citizens of New Orleans for the levee breaks.
The Judge recounts the tortured history of the levees, and lays blame at practically everyone's doorstep: Congress, environmental and citizen groups such as Save Our Wetlands, the citizens of New Orleans, the New Orleans government and even the local state and federal court systems for issuing injunctions prohibiting the levees from being built pending environmental studies, which as we know in hindsight, didn't work.
The factual part of the Court's opinion in the first 18 pages is well worth a read before you complain another word about anything arising out of this series of failures leading to the collapse of the levees.
No one, however, was singled out in the Court's opinion more than the Corps.
While Judge Duval criticized the Corps' "gross incompetence" and the "catastrophic failure of the Corps to fulfill its mission," he ruled the Flood Control Act of 1928 grants immunity to the government in the event of levee failure.
Cry me a river.
New Vehicle Laws - Roundup By AAASeveral new laws affecting motorist and traffic safety will take effect beginning Jan. 1, 2007, according to the Automobile Club of Southern California.
"Many of these laws focus on safety for vehicle passengers, mature drivers, pedestrians and young drivers," said Alice Bisno, the Auto Club's vice president for legislative and regulatory affairs.
Laws taking effect Jan. 1, 2007 include:
AB 1850 makes it unlawful for a person to knowingly drive a motor vehicle while another person is riding in the trunk; riding in the trunk is also illegal. The driver receives a fine and one point on his or her driving record; the person riding in the trunk receives a fine. The law is a response to some teen drivers' attempts to evade the passenger restriction in California's graduated driver licensing law by hiding teens in the trunk. Since 2000, there have been 153 collisions involving trunking, resulting in nine deaths and 140 injuries.
Mature-driver courses, available for drivers at least 55 years of age, are designed to help older motorists drive safely longer by educating them on proper driving techniques and changes in technology and the law. AB 2407, an Auto Club- sponsored bill, permits renewal courses to be completed in four hours. (The initial course lasts for eight hours.) Drivers who successfully complete the course are eligible for a small discount on their auto insurance.
SB 1610 is intended to enhance safety for emergency vehicle and tow-truck personnel working on the side of the road. Drivers approaching a stationary authorized emergency vehicle or tow truck with its siren or emergency lights activated must proceed carefully and move into an available lane at least two lanes away from the emergency vehicle or tow truck. If such a move is not safe, practical, or legal, the driver should slow to a reasonable and prudent speed. The law expires on January 1, 2010.
SB 1021 requires the DMV driver handbook and traffic-violator school curriculums to include information about respecting the right-of-way of others, particularly pedestrians, cyclists, and motorcyclists. It also increases the fine for right-of-way violations that result in bodily injury or great bodily injury. Violators will pay a fine of at least $245 if bodily injury is involved and at least $345 if great bodily injury is involved. For purposes of this law, great bodily injury means "any significant or substantial physical injury."
Reckless Driving and Street Racing
AB 2190 makes reckless driving and street racing that results in great bodily injury a felony offense for first-time violators. Previously, only those with a prior conviction for this offense could be charged with a felony. Great bodily injury includes loss of consciousness, concussions, bone fractures, wounds requiring extensive suturing, serious disfigurement, and paralysis.
Driving Under the Influence
AB 2752 increases the penalties for underage drinking and driving. The new law makes it a criminal offense instead of a civil penalty for a driver under 21 years of age to have a measurable blood-alcohol concentration of 0.01 percent. First-offense infractions will carry a minimum fine of $350.
Under AB 2253, a court can impound a vehicle used in the illegal dumping of waste matter for up to six months if the person driving the vehicle has a prior conviction for the offense. Waste matter does not include beverage containers or food wrappers, but it does include oil and other petroleum products, paints, garbage, furniture, dirt, gravel, and body parts.
Other motorist-related laws that were approved by the California Legislature in 2006, but which do not take effect until 2008 or later, include:
SB 1613 prohibits the use of handheld cellular telephones while driving. Starting July 1, 2008, a driver may use a cell phone only if it has a hands-free listening and speaking system. Drivers ticketed for a violation will be subject to a minimum total fine of $70 for a first offense and $175 for subsequent offenses. "Push-to-talk" systems (such as Nextel) are exempt from the hands-free requirement until July 1, 2011.
SB 1542, sponsored by the Auto Club, will make it easier for vehicle owners whose keys are lost, stolen, or broken to obtain replacement keys. This law takes effect January 1, 2008 and it requires an automaker to provide the codes necessary for a locksmith to make a replacement key for vehicles sold or leased in California. Some auto manufacturers, such as Mercedes-Benz and BMW, will have until 2013 to comply with the new law if they currently allow no one but themselves to duplicate a key.
Under AB 1870, beginning January 1, 2008, vehicles that emit visible smoke from the tailpipe or crankcase during a smog inspection will fail the test. A vehicle owner can appeal a failing result to a state-designated referee; low-income vehicle owners may be eligible for repair assistance.
Driver AssessmentAB 2542 requires the DMV to implement its evaluation system for identifying drivers with medical problems and functional limitations. A report to the legislature on the results is due by December 31, 2011; the law expires January 1, 2012. "
Lease Accounting 101: Tenants Suing Landlords For Fraud And Maintenance Expenses
Kelly McLain leased space in a small, strip mall for her A+ Teaching Supplies store in Valencia, California. Her landlord, Octagon Plaza, LLC represented the space she would lease was approximately 2,624 square feet, and that her store was 23% of the entire mall, so she also had to pay 23% of the common area maintenance charges based on 11,835 square feet in the mall. Her rent was $1.45 per square foot, making her base rent (before CAM charges) $3,804.
No, the next question is not going to be: if one train left the station at 3:12 p.m. traveling west at 54 miles an hour and another train left the station at 3:36 p.m. on the opposite side of town travelling east at 36 miles an hour, then when will they meet?
The question here is whether a tenant can sue her landlord for fraud and to what extent can she obtain an accounting of the CAM charges?
The lease allowed her to verify the square footage of the store, and when she sought to do so, her landlord became offended that she would question the integrity of the representation, so she accepted the measurement as is.
Unfortunately, the space was smaller and the shopping center was bigger. Kelly obtained a copy of Octagon's application for earthquake insurance, which listed the overall size of the mall at 12,800 square feet and her space slightly smaller at 2,438. At that size, she would have been responsible for only 19% of the CAM charges and her base rent would have been lower at $3535 per month.
The trial court ruled based on those facts that she wasn't able to establish fraud, but the court of appeal reversed, noting that over the term of her lease, the difference amount to $90,000 in rent, despite the slight monthly differences.
The appellate court also ruled that Kelly's lease provision entitling her to inspect and verify the basis for the CAM charges allowed her to do just that, and required Octagon to open its records to her. When you read the opinion, you'll discover the relationship between the tenant and landlord was much more acrimonious than I've described here, so you'll probably guess that Kelly wanted to do more than verify the CAM charges, she wanted to be able to disallow those she thought were unnecessary. The court granted her access to the records, but stopped short of giving her a vote based on the language in the lease.
By the way, the Octagon Mall is presently listed for sale at $6,800,000, with its square footage listed at 11,835, with seven tenants. No word whether A+ Teaching Supplies is still there.