[JC Jones]

John,

I suggest you re-read the article. The current holder did not build the three-holer but Bert Bonnano, the developer and first occupant did.

JC,

I could be wrong but easements concern lot lines etc., this should have been caught by Monterey County's Planning Department prior to signing off on the project.

Bob

Bob,

Easements can involve lot lines, etc., but they can also be used to restrict use of property (as is the case here).  All of which would be available through a pretty standard title search.  Therefore, the homeowners either a) didn't order a title search when purchasing a $13mm property or b) chose to ignore it.

Either way, the use of their land was restricted and they were outside of their permitted use and worse yet they were aware (or constructively aware) at the time.  If they didn't like the regulations they should have attempted to change the it first before, effectively, breaking the law.  The fact that it took several years for the CCC to enforce is of no consequence.  I doubt, very highly, that you'd mind if some criminal was arrested for a bank robbery 17 years after he committed it.  (No, I'm not saying improper use of one's property is akin to stealing another's).

This is not to say that the regulation is good or bad.  I have no idea what sort of protection of the Monterrey coastline is necessary at this point.  It is only to say that these people were, knowingly, in violation of that regulation and are suffering the consequence of their behavior.

How's that for you "rule of law" folks out there?

[Patrick_Mucci]

The CCC won it's case, but let's be realistic, if they were so all-powerful it wouldn't have taken a decade for them to see this little course get ripped up.

Jim,

The only reason it took so long is that the homeowners went to court to prevent the enforcement of the CCC's decree.

In 2002 the CCC issued a cease and desist order.
They also were going to fine them $ 4,000 a day, $  1,460,000 per year.
The defendents subsequently sued.
In 2004 a judge ruled in their favor.
In 2007 an Appeals court reversed that ruling.
In 2010 the California Supreme Court refused to hear the case.

Think of the abuse of power the CCC exhibited.

Suing a homeowner $ 1,460,000 because they wouldn't remove grass, the same grass that's probably on the golf courses in the area. and sand, which is probably similar to the sand on the beach below their property is pretty onerous.

Then suing them for $ 20,000,000 ?  ?  ?

Do you think that's an abuse of power ?

The problem is that the government can be unreasonable, they can act in a mean spirited, and irresponsible way and citizens have little hope of battling "city hall".
Government can be heavy handed.  Suing for $ 20,000,000 is a complete abuse of power.

What I don't understand is how the grass on the homeowners lawn isn't deemed "native"
Had they planted what would be considered "native" grasses, woudl the CCC have relented ?
I doubt it.
I'm sure the homeowner would have replanted the little golf course had that been acceptable.

This is about personality conflicts and abuse of power.


Like it or not (I don't like seeing a golf course destroyed), the system protected  both sides until the final legal decision was arrived at.
Just like the legal system did in the O.J. case  

[Lou_Duran]

Bob,

Easements can involve lot lines, etc., but they can also be used to restrict use of property (as is the case here).  All of which would be available through a pretty standard title search.  Therefore, the homeowners either a) didn't order a title search when purchasing a $13mm property or b) chose to ignore it.
How's that for you "rule of law" folks out there?

Professor Jones,

I'm really surprised by your answer.  You hardly exhausted the list of possible reasons why the original owner may not have known of the easement (assuming that the restriction was indeed filed prior to the work being started).  As it happened to me with a utility easement on a prior home, the title commitment nor the survey showed that my pool deck encroached a few inches into it.  Perhaps the title company blew it- it has been known to happen.  Of course, in such cases, we have individuals of your profession only too willing to seek appropriate redress.

As to the rule of law, when the law is so absurd- do you remember the Woody Allen movie "Bananas where the Castro-like revolutionary despot made it statutory that underwear must be worn on the outside (of the pants) to enable the police to inspect them for their cleanliness?- people lose respect for authority.  The CCC which can control a bathroom fixture within its defined and expanded jurisdiction has been pushing its "extreme" perspective and, in some parts of CA society, it is viewed with derision and contempt.  Look at the CCC and the Dos Pueblos Golf Links fiasco.

In Charlotte, the common practice of trimming crepe myrtles- the rule of thumb is to trim before spring anything smaller than a pencil, with larger branches cut as necessary when trying to shape the tree-  gets a church fined thousands of dollars.  With the proliferation of rules, regulations, ordinances, laws, etc., really, who amongst us is really safe from a zealous bureaucrat?

We abdicate responsibility for ourselves at our own peril.  There are an alarming number of people out there who "want to make a difference" that will gladly tell and compel you precisely how to live.  Federalism is the only check on these folks.  Those who don't want to live in a place where the simple act of putting in a new toilet or trimming a tree can put one in financial straits or even jail can opt out with our feet.  If we allow the federal government to Californicate the country, we are indeed in deep trouble.

Be careful of the politician offering you free benefits.  There are always strings attached.  Wasn't it Franklin who once warned that trading liberty for security assured neither?         

[JC Jones]

My good man, Duran,

So what you're advocating now is that we pick and choose the laws we obey based on our own determination of their absurdity?  Talk about relativism defined.  Perhaps this would be a good precedent should the arbiter of absurdity be yourself, but would you trust just anyone to make the same decisions you would?

If the situation is as you suggest it could be - that the title company blew it - then certainly these litigious millionaires will find their redress.  But in the mean time, you are again resting on the quality of the regulation, a point of which I did not address.  It is easy to run all in the defense of the lawlessness of the wealthy.  I wonder, however, would you be so willing to advocate someone taking the law into their own hands on the corner in Five Points?

[Lou_Duran]

So what you're advocating now is that we pick and choose the laws we obey based on our own determination of their absurdity?  Talk about relativism defined.  Perhaps this would be a good precedent should the arbiter of absurdity be yourself, but would you trust just anyone to make the same decisions you would?

Professor,

Please exit the classroom but for just a few minutes.  Where am I advocating the rather common practice of picking which laws are justifiable and disregarding the rest?  Just because President Obama can set aside decades of bankruptcy law to favor his Big Labor friends and contributors does not mean that I am a proponent of the "rule of men".  I am suggesting that as "the law" becomes more and more absurd, that respect for it and compliance will suffer.  

As my comments on federalism should have made clear, if the voters of CA and NC can abide the absurdities (and injustices, IMO) that some of their bureaucrats dish out routinely, it is their perogative.  What I do ADVOCATE is preventing the federal government from nationalizing those and any practices which are clearly out of its constitutional purview.  While some of you may wish otherwise, my family has already had to escape tyranny twice.  There really aren't many places left to go.

And no, as much confidence I have in my beliefs, I would not want to be the "arbiter of absurdities".  I've been around the block long enough to know that what is clearly bizarre to me is very natural to someone else.  So long as the values people hold dear aren't harmful to me, my family, and my country, I'm not going to be bothered.  In fact, I like variety and, in moderate doses, get some amusement from quirk.  Just leave changing lightbulbs and toilet tanks to my discretion, as well as pruning my trees.  I can handle such things responsibly, really.
  

[JC Jones]

Make no mistake, Mr. Duran, I have no problem with conscientious objectors, so long as they understand that paying the fine or doing the time are a part of such activities. 

And, as you know, when it comes to federalism, you and I are on the same page.  I think you can prune your trees how you see fit, unless, of course, you are told in advance that pruning them a certain way would violate the law.  In that case, either change the law or pay the fine (or don't buy the property).  Along those same lines, what the President did to Bankruptcy law in the Chrysler bonanza was absolutely atrocious and has had many ramifications in the debt market ever since.

P.S. - You don't have to refer to me as "professor" in every post; though I understand the point you are trying to make.

[Mike Nuzzo]

John K,
More grist for home owners rights.

http://www.charlotteobserver.com/2011/05/28/2333197/church-fined-for-improper-tree.html

Bob

Those dudes shouldn't visit Houston
It is crepe myrtle hacking heaven

[paul cowley]

Technically those poor church folks could have, or should, argue that a crape myrtle, 'lagerstroemia indica' is almost universally classified as a shrub that can be pruned as a small tree....but otherwise it's a plant type found in the small to large shrub category.

They might should expand their ordinance to include shrub pruning...that would add at least two urban foresters to the city payrolls!

[Adam Clayman]

For all those who choose to comment,,,

Have you ever seen this yard from a personal perspective?

I have, many times.

It's ludicrous that what's acceptable fifty yards away, mowed grass with pins and flags, isn't allowed here.

Taste should not be in the purview of a state coastal commission.

[Kalen Braley]

Looks like this guy is next...

http://news.yahoo.com/s/yblog_thelookout/20110531/us_yblog_thelookout/officials-say-man-must-tear-down-phonehenge-house

[Jim_Kennedy]

JC,
These two fellows don't seem to share your perspective on Chrysler. I'm always amazed that President Obama takes the blame for cleaning up President Bushs' mess, like the 4 billion Bush he loaned to Chrysler right before stepping away from office. It also seems rather strange that Obama gets the blame when the Second Circuit Court of Appeals upheld the whole restructuring plan.
   
http://www.clevelandfed.org/research/conferences/2011/4-14-2011/Anginer_Warburton.pdf

Pat,
No where does it say that any fines were ever paid.

We all know what suing someone for 20mil is really all about.

No one knows what the outcome would be if the homeowner approached the problem by offering to replant the course with native species. Maybe he should have tried that approach.

O.J. lost the civil case.

[Patrick_Mucci]

JC,
These two fellows don't seem to share your perspective on Chrysler. I'm always amazed that President Obama takes the blame for cleaning up President Bushs' mess, like the 4 billion Bush he loaned to Chrysler right before stepping away from office. It also seems rather strange that Obama gets the blame when the Second Circuit Court of Appeals upheld the whole restructuring plan.
   
http://www.clevelandfed.org/research/conferences/2011/4-14-2011/Anginer_Warburton.pdf

Pat,
No where does it say that any fines were ever paid.

Jim, that's not the issue.
The threat and the consequences of the threat, a fine of $ 1,460,000 per year is enormous.

We all know what suing someone for 20mil is really all about.

I'd agree with you if two citizens were involved, but, when the government sues for $ 20,000,000 it's a different story.
The government has unlimited time, unlimited resources and unlimited money with which to wage war in the courts.

No one knows what the outcome would be if the homeowner approached the problem by offering to replant the course with native species.
Maybe he should have tried that approach.

How do you know he didn't ?

My question was, why not just plant the same grass that's acceptable for golf courses in the area, that's considered native.
Surely, there must be some native grasses that are adaptable, mowable for golf course use.

O.J. lost the civil case.

[Jim_Kennedy]

You:
Had they planted what would be considered "native" grasses, woudl the CCC have relented ?
I doubt it.
I'm sure the homeowner would have replanted the little golf course had that been acceptable.

Me:
No one knows what the outcome would be if the homeowner approached the problem by offering to replant the course with native species.
Maybe he should have tried that approach.

You:
How do you know he didn't ?

Me:
How do you know he did?  

As to the grasses on the existing courses, I haven't the foggiest notion what is or isn't 'native', but I think they were all built before Pres. Nixon signed the law that effectively created the CCC. Maybe they're all grandfathered in.

Seems like the CCC was using the potential fines as coercion to bring (or force) the homeowner into compliance. The homeowner sued and had his 'day in court' (probably many days) and after 10 years or so he lost. I feel sorry for the guy as it seems he was misled by the former owner when purchasing the property.

[Patrick_Mucci]

Jim,

The fact that the course was in existance for 18 years seemed to have no influence over its abilty to remain.

Perhaps some of the lawyers can assist with my question.

47 years ago, I moved into a Garden apartment complex that stipulated in the lease/rental agreement, "no dogs"
But, there were a substantive number of renters who had dogs for some time.

So, my wife wants to get a dog, (no children at the time), and she want to get a Doberman Pinscher, which is the breed I had previously when I was in high school and college.  So, I get a Doberman.  Trained him exceedingly well.
He was big, gentle and very obedient, but, he was ferocious looking and on command, would get your attention.

So, a resident complains to the manager who complains to the owner who sends me a get rid of the dog or get evicted notice.
My wife says, "don't get rid of the dog, he's part of our family".  My father says, "get rid of the dog" .
My best friend calls anyone (Me) who would get rid of their pet, the worst of the worst.  so, my dad gets outvoted.
I keep the dog, I get an eviction notice, I go to court.
The court decides that the no dog clause doesn't apply because the landlord allowed dogs for so long that he couldn't arbitrarily decide which dog he wanted to evict and when.  Part of my reasoning was OK, if you want to get rid of my dog under your clause, you have to get rid of all dogs.

So, doesn't the fact that the CCC permited the grass/course for almost 20 years imply a form of consent ?
Surely they couldn't maintain that they didn't know about it.
Those agencies do fly-overs and inspections on a regular basis.

Subsequently, I have noticed in leases, that dogs weighing over 40 pounds are prohibited.

[JC Jones]

Jim,

It has nothing to do with "cleaning up Bush's mess."  What it has to do with is Obama's administration setting aside certain sections of the Bankruptcy Code to remove the priority the senior debt holders had.  The ramifications of such were a tightening in the availability of debt capital to corporations the last few years.  It has only been the recent fear that the Treasury will jack up rates that has caused the recent spur of corporate debt seeking.  The fact that a 2nd circuit court upheld the Obama bankruptcy plan is meaningless.  Hell, the Supreme Court of the United States fabricated jurisdiction to grab control over Bush v Gore.

[Stewart Naugler]

What's crazy is Robert and his wife never used the chipping greens they fought so hard to keep. I was right next door nearly everyday last year and never once did I see them in their front yard. While at Cypress I helped take care of other privately owned putting greens that border the club's property. I inquired about Robert's practice greens but I was told they only wanted them mowed with residential lawn mowers. The greens stimped around 4 and the bunkers were full of rocks.

It's still sad to see it go!

[Jim_Kennedy]

You're talking to a layman here, but it seems that a section (363) of the bankruptcy code allowed for the move.

The Supreme Court kicked it back to 2nd. Why? Did they feel that the move was legal?

If the debt seekers are willing to start borrowing because they feel that rates will rise then they must also have satisfied themselves that this was an action taken during extreme conditions and that they will most likely not be subject to such a situation in the future.

Also, if bond markets weren't adversely affected (and the gentlemen's paper seems to show that some actually improved in the aftermath of the proceeding) how is this such a bad thing?

55,000 jobs saved seems like a good move, Chrysler (and GM) are pumping out cars and suppliers are still selling parts. Consumer confidence seems to have taken an uptick and the good results of Chrysler/GM surely account for some of that.  

[Bob_Huntley]

John,

I suggest you re-read the article. The current holder did not build the three-holer but Bert Bonnano, the developer and first occupant did.

JC,

I could be wrong but easements concern lot lines etc., this should have been caught by Monterey County's Planning Department prior to signing off on the project.

Bob

Bob,

Easements can involve lot lines, etc., but they can also be used to restrict use of property (as is the case here).  All of which would be available through a pretty standard title search.  Therefore, the homeowners either a) didn't order a title search when purchasing a $13mm property or b) chose to ignore it.

Either way, the use of their land was restricted and they were outside of their permitted use and worse yet they were aware (or constructively aware) at the time.  If they didn't like the regulations they should have attempted to change the it first before, effectively, breaking the law.  The fact that it took several years for the CCC to enforce is of no consequence.  I doubt, very highly, that you'd mind if some criminal was arrested for a bank robbery 17 years after he committed it.  (No, I'm not saying improper use of one's property is akin to stealing another's).

This is not to say that the regulation is good or bad.  I have no idea what sort of protection of the Monterrey coastline is necessary at this point.  It is only to say that these people were, knowingly, in violation of that regulation and are suffering the consequence of their behavior.

How's that for you "rule of law" folks out there?

JC.

It was incumbent upon the CCC to place the the impediment into the record, it is my understanding that the title search showed no such thing. Now what?

Bob

[RJ_Daley]

I'm still puzzled as to some of the ancillary aspects of this case that this "Pine Cone" news story may have omitted.  I was trying to wade through some of the verbiage on the CCC website about their history and grant of jurisdiction and authority even to the extent they seem to have some sort of conferred right to overrule the feds on certain matters.  It talks about Local Coastal Programs and Local Use Plans having rights to set permitting and zoning but gives the CCC authority to rescind or revise local regulations and enforcement.  With all the questions of individual property rights, and more so, whether the zoning can or should be applied 18 years, after the fact, it seems to me that there would have been many 'amicus' parties that would have liked to or had entered the suit.  But, the final part of the article indicates the homeowners are professional poker players.... must have been more of a question of fold 'em than hold 'em, going all in.  

I find it somewhat ironic that the CCC was created under Ronnie Reagan's Gubernatorial reign, apparently with his blessing, and many appointments back then.  Was it an acceptable concept for a commission to possess this much power to these conservatives then, and an abomination now?  I see the original set up organization of the CCC as constituted under Reagan's admin, was found 'unconstitutionally structured' on an appealed case in 03, which caused the legislature to change the law of organization and procedures.

And, I wonder how this case plays into the whole equation:

http://en.wikipedia.org/wiki/Nollan_v._California_Coastal_Commission

I see that in 'Nollan', the CCC seemed very diligent to assert their power to demand/ or "required that an offer to dedicate a lateral public easement along the Nollans' beachfront lot be recorded on the chain of title to the property as a condition of approval of a permit to demolish an existing bungalow and replace it with a three-bedroom house."  Aren't there some similarities because the Feduniak's bought a house that went through similar review and permitting to be rebuilt and no demand or requirement was made at that time to record the zoning requirements of native plants as a condition of issuance of the building permit?  And, part of the case considered the requierment that the CCC must establish that;  "an "essential nexus" exists between a legitimate state interest and the permit condition."  It is sound science and plenty of solid documentation that a turf sward is highly beneficial to the environment, despite if it is native species or cultivars to that region or not. What essential nexus exists to the state's interest to demand this alteration so many years after the fact, when nothing can possibly be proven about the turf sward that is harmful to the environment?   I think the Feduniaks should have had this guy for an attorney.  http://www.zumbrunlaw.com/zumbrun.htm  It would be too much of an irony if he was on the CCC side on this one.

Maybe Shivas and Moriarty can splain some of this to us laymen.

[Doug Siebert]

Looks like this guy is next...

http://news.yahoo.com/s/yblog_thelookout/20110531/us_yblog_thelookout/officials-say-man-must-tear-down-phonehenge-house

Geez, will the bulldozers show up at the Watts towers next??

[Jim_Kennedy]

Doug,

As you probably know, the City of LA wanted to tear down the Watts Towers but they were saved in the late '50s by a coalition of actors, artists, architects, the Los Angeles County Museum of Art, etc.. The towers went through an engineering test that satisfied the city about their safety and eventually they became listed in the National Register of Historic Places as one of nine folk art sites.

http://www.wattstowers.us/


Sounds like a battle plan for Phonehenge.

[Michael Wharton-Palmer]

I have to agree with Adam Clayman here...sometimes common sense has to prevail, and here it did not...it was a pleasant site along the drive..adjacent to hallowed links land it really did fit into the locale...what a shame that someone had a bee in their bonnet and an axe to grind...as I said should have been a little more of a common snese and esthetic value rather than the "pure"letter of the law....but perhaps that is just liberal ol" me!!!!

[Carl Johnson]

. . .
In regard to the non native plants on the estate, considering that ALL grasses are native to the Savanna in Africa and therefore any grass not native to CA is an oxymoron.
There are NO native grasses in the USA according to what I have been taught.

Interesting articles on the subject of "native" species and "native grasses."

What native means in general: http://en.wikipedia.org/wiki/Native_plant

Native North American grasses: http://www.hort.purdue.edu/newcrop/proceedings1993/v2-284.html

Native North American turf grass: http://www.allaboutlawns.com/grass-types/north-americas-only-true-native-lawn-grass.php

[JC Jones]

[quote author=Bob_Huntley link=topic=48400.msg1091301#msg1091301 date=1306891435

JC.

It was incumbent upon the CCC to place the the impediment into the record, it is my understanding that the title search showed no such thing. Now what?

Bob
[/quote]

I pulled the decision from the 6th District Court of Appeals and in the facts it states:

[The owners] recorded an irrevocable offer to dedicate an open space easement, which incorporated by reference the specific provisions of the permit, in which they agreed “to restrict development on and use of the Property so as to preserve the open-space and scenic values present on the property and so as to prevent the adverse direct and cumulative effect on coastal resources and public access to the coast which could occur if the Property were not restricted....” FN3 The owners also submitted a landscape plan providing for the removal of non-native plants and *1354 restoration of the entire site to native dune plants and grasses. On October 28, 1983, the Commission issued the permit.

    FN3. A title report dated October 14, 1983, reveals the existence of the irrevocable offer to dedicate an open-space easement.

    In 1986, the Del Monte Forest Foundation, Inc. (the Foundation), which was designated by the Commission to hold and maintain the open space in the Del Monte Forest area of Monterey County, formally accepted the owners' offer of an easement, and its acceptance was recorded.

Reading further, subsequent to the recording of the easement the owners of the property proceeded to disregard and build the pitch-and-putt golf course.  Nonetheless, the easement was recorded.  However, the facts go on to say:

In their real estate transfer disclosure statement, the Bonannos answered “Yes” concerning whether there were “encroachments, easements or similar matters that may affect [the Feduniaks'] interest in the subject property.” *1355 However, they disclosed only a “fence encroachment” and did not also disclose the easement and permit restrictions.

The Feduniaks obtained a preliminary title report from Old Republic Title Company, but neither it nor the final report revealed the restrictions, although they were recorded. The Feduniaks did not consult with the Commission or check its files concerning the property or otherwise rely on any representations or information from the Commission in deciding to purchase the property.

So, as I said before, perhaps their action is against the Bonannos and/or Old Republic.

The lesson of the story is that buyers will have to perform better due diligence when purchasing coastal property in Monterrey but the easement was of public record and as they say, ignorance is no excuse.

[Jud_T]

JC,

Only weighing in on legal matters these days?  Too busy perfecting that 7-iron explosion shot from a potbunker and midnight putting with a 3-wood?

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