[Craig Sweet]

Unbelievable that you could buy an $18 million dollar home and "overlook" something as important as a conservation easement on the property...especially when that easement was the key to the permit to build the home in the first place.  I wonder what kind of tax break the original owner received for the easement...or was the building permit reward enough for him? I would think, given land prices in that area, taking that chunk of property out of consideration for future development gave the original owner a lovely tax break.

Personally, I don't see any victims here at all. A non complying use can go undetected by government over site for years....especially something that looks like a normal front lawn (a ferris wheel would be detected in about 15 minutes...: ) ) It sounds as if once the governing body caught on to the non compliance they got right on it...bravo to them for sticking up for the law and the legality of the easement!

[Craig Sweet]

Common sense? Hey, is a conservation easement a legal document? YES! Typically, the land owner gets something in return for the easement...in this case he probably got a nice tax write off and the building permit...and he gives something in return...in this case a legal document requiring him to plant only native vegetation.  Did he comply with his end of the deal? Obviously not. It's unfortunate that the new(er) owners had to suffer the consequences of his lie, but the easement STAYS WITH THE LAND, not the original owner.

Is the common sense thing to do here to turn a blind eye to this? To NOT uphold a legal document, to let "just this one" slide? There are many that post to this site that claim this is the problem with government...that government should leave these people alone. But I can tell you, having served in local government, that "letting this slide" is EXACTLY what makes government seem a total failure...when the law is unevenly applied society, and government suffers greatly...in the long run.

[JC Jones]

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?

Just don't let the membership see your tears.

[Bill_Yates]

I agree that the law is the law and should have been followed throughout the course of various home ownerships.

My frustration (as presented in the picture I posted above on page 1 that shows the property in question and the 13th green complex on Cypress Point) is about why was the CCC and easement/law required in the first place? 

Just "look" at the hypocracy in creating the law. Two similar conditions, treated quite differently, that lie only 180 yards apart. 

[Adam Clayman]

Bill and others. I'm not sure if it's been illuminated in this thread, but, on prior threads about this house, the owner was the reason there was no action against him. If I need to spell it out any clearer, PM me, or, look up the old posts Sir Boab has made.

So, we either have selective enforcement, or, a ridiculous law, or both. The new owner should be able to fight a reasonable fight, since the CCC let it go for so long without enforcement.

Take your pick. It's still a waste of time and money to all parties involved, and does absolutely nothing to preserve, protect or alter any real environmental impact.

BTW, Those impact studies are a huge drain on society. Especially struggling municipalities that want to put up a lamp post or other such innocuous matters.

[Sean_A]

Has anybody considered that CCC may not have an obligation under law to enforce its policies?  it could well be that the CCC relies on complaints from folks before investigating.

Ciao

[Craig Sweet]

First of all, you need to know who holds the conservation easement. Second, who holds the easement might tell you a lot about enforcement over the years....Third, the title company blew it big time if they did not make it clear that their was an easement on the property...Fourth, if the title company neglected to uncover the easement, the current owners can sue the title company...Fifth, I am sorry, but I do not buy their excuse that they knew nothing about an easement. Sixth, 20 years ago when this property was being considered for development what were the discussions with the regulatory agencies regarding conditions for approval?  Who stepped in to hold the easement? Where is that legal document today? Seventh, the golf course down the street was there long before this home was built and you can not simply say what was good enough 75 years ago is good enough today...the same standards no longer apply.

Lastly, anyone that thinks the CCC is all knowing and always doing fly overs looking for violations simply does not understand how regulatory agencies work. An easement on a particular piece of property is not going to be on their radar unless someone has a concern. With a thousand miles of coastline a single property....a sliver of land...is not going to set off alarms...unless they were building a ferris wheel or something.

[Patrick_Mucci]

Common sense? Hey, is a conservation easement a legal document? YES! Typically, the land owner gets something in return for the easement...in this case he probably got a nice tax write off and the building permit...

Do you know that with absolute certainty ?

Why would a building permit be tied into a conservation easement ?
Different jurisdictions handle each seperately ?

As for a tax write off, I think you're confused.  It's not a tax write off.
They didn't sell their home to the CCC.
This isn't a case where they had farmlands, or acres of open land.
When a landowner cedes property into an easement, the landowner doesn't pay property taxes on that land for so long as it's in the conservation easement.  

I can't see a homeowner ceding their home into a conservation easement.
What purpose would it serve for the CCC or the homeowner, as the value of the home would be lowered for resales.

Perhaps more information needs to be gathered before making any claims.
The landowner can't put the land in a conservation easement and retain control over the land until the easement expires, provided it's a temporary easement (10 years)

and he gives something in return...in this case a legal document requiring him to plant only native vegetation. 

That doesn't make sense on this rather small sized parcel with a home on it.

Shouldn't the original easement be accessible on the internet ?

Did he comply with his end of the deal?

He didn't comply with it because he was unaware of it.

Obviously not. It's unfortunate that the new(er) owners had to suffer the consequences of his lie, but the easement STAYS WITH THE LAND, not the original owner.

Is the common sense thing to do here to turn a blind eye to this? To NOT uphold a legal document, to let "just this one" slide? There are many that post to this site that claim this is the problem with government...that government should leave these people alone. But I can tell you, having served in local government, that "letting this slide" is EXACTLY what makes government seem a total failure...when the law is unevenly applied society, and government suffers greatly...in the long run.

Craig, While common sense should prevail, it can't, because it's difficult to impossible for government to forget/forgive in one instance, without forgetting/forgiving in all instances, and since all instances are rarely identical, it leaves the matter open to interpretation, which leaves the matter open to litigation.

I can't help but think, that if reasonable minds had prevailed, that a reasonable solution satisfying both parties could have been worked out

[Craig Sweet]

Pat, the conservation easement is on the land and it stays on the land regardless of who owns the property. The easement, according to the attached article, was placed on the land as a condition for approval more than 20 years ago...there was no building on the property and none could be built without a building permit...it is not that unusual to have certain conditions placed on a development and from what I read from the article the original owner agreed to place a conservation easement on the undeveloped portion of the property calling for native vegetation to be planted and maintained...you can not break the law, wait 20 years and say, well, you didn't catch me at the time I first broke the law, so now be reasonable and leave me alone.

The new owners should have been made aware of this when they purchased the property from the original owner...an easement is a legal document and could certainly have an effect on property value etc...

Pat, I do not think there is any room for negotiation between "resonable minds" because the legal document placed on the land is cut and dry...the home exists on this property because of the easement. Anything short of native vegetation on the undeveloped portion of land is legally non conforming.

[George Pazin]

So, we either have selective enforcement, or, a ridiculous law, or both.

Get used to this, it is the future...and the present.

[SL_Solow]

Craig; actually there is one potential exception but I am not familiar enough with California law to be able to speak to its applicability.  The concept of a proscriptive easement, where the owner of a property allows open and notorious use in contravention of the title for a specified lengthy period may lose the right to enforce the terms of a title.  For example, if an owner allows adjacent landholders to use a path through his property for many years (the number varies with the state's law, usually common law) he may be barred from prohibiting use of the pathway through his property.  As an example, Harvard periodically locks the gates to the yard when students are not in residence to interrupt pedestrian traffic to and from Harvard Square to preserve its right to control access.  In this case, the private golf hole was open and notorious and in violation of the restriction.  I suppose the owner could have argued that his use was analagous to a proscriptive easement.  but given the manner in which the restriction was created, i suspect it would have been a difficult argument and I supect that if the owner's lawyers thought it was a winner they would have tried it.

[Bill_Yates]

George,
Only if we keep letting them selectively enforce and create ridiculous laws that encroach on our freedoms.

[JC Jones]

Craig; actually there is one potential exception but I am not familiar enough with California law to be able to speak to its applicability.  The concept of a proscriptive easement, where the owner of a property allows open and notorious use in contravention of the title for a specified lengthy period may lose the right to enforce the terms of a title.  For example, if an owner allows adjacent landholders to use a path through his property for many years (the number varies with the state's law, usually common law) he may be barred from prohibiting use of the pathway through his property.  As an example, Harvard periodically locks the gates to the yard when students are not in residence to interrupt pedestrian traffic to and from Harvard Square to preserve its right to control access.  In this case, the private golf hole was open and notorious and in violation of the restriction.  I suppose the owner could have argued that his use was analagous to a proscriptive easement.  but given the manner in which the restriction was created, i suspect it would have been a difficult argument and I supect that if the owner's lawyers thought it was a winner they would have tried it.

An inverse adverse possession theory (how's that for terminology)?  Fascinating.  As you point out, adverse possession and proscriptive easements are created out of an estoppel theory - because I was allowed to walk on your property for 15 years you are estopped from enforcing your property boundaries to the extent of my use.

They basically did the same here.  They used an estoppel argument, basically saying that because they (current and former owners) were allowed to violate the restriction for 25 years they should always be allowed to violate the restriction.

I think from a policy standpoint one would likely have a hard time getting many courts (though they were successful in the local trial court) to buy such an argument that because you knew I was dealing drugs for X years and didn't stop me I should always be allowed to deal drugs.  

That argument is kind of like the reaction the dealers had in Season 3 of The Wire when Burrell and Rawls found out about Hamsterdam and ordered a raid to shut it down.

[Patrick_Mucci]

Pat, the conservation easement is on the land and it stays on the land regardless of who owns the property. The easement, according to the attached article, was placed on the land as a condition for approval more than 20 years ago...there was no building on the property and none could be built without a building permit...it is not that unusual to have certain conditions placed on a development and from what I read from the article the original owner agreed to place a conservation easement on the undeveloped portion of the property calling for native vegetation to be planted and maintained...you can not break the law, wait 20 years and say, well, you didn't catch me at the time I first broke the law, so now be reasonable and leave me alone.

The new owners should have been made aware of this when they purchased the property from the original owner...an easement is a legal document and could certainly have an effect on property value etc...

Pat, I do not think there is any room for negotiation between "resonable minds" because the legal document placed on the land is cut and dry...the home exists on this property because of the easement. Anything short of native vegetation on the undeveloped portion of land is legally non conforming.

Craig,

Something seems amiss.

Before the home was built, the property had to be owned by someone else.
Apparently the person who owned the property and sold it to the fellow who built the home, had no such restrictions on his property.

How can the CCC restrict use on a property which has no restrictions ?

Then the previous owner sells to the fellow who was to build the home.
How can the CCC restrict/prohibit the new homeowner from building a home on a parcel of land zoned as residential ?

Easements are also structured to lapse at their expirey date when limited easements are granted.
Granting an easement in perpetuity on a residential property seems  ..... unusual if not alien to prudent thought.

Can a copy of the easement be obtained ?

Since when is grass not native grass ?
What qualifies as native grass ?

[Craig Sweet]

Pat, not sure anything is amiss...the original owner of the bare land wanted to build a home on it...a condition for getting the building permit was the conservation easement...that easement, according to the article , restricted development of the undeveloped land, and required planting of native vegetation on the undeveloped land. I have no idea how long the original owner waited before he installed his golf course, but certainly he knew he was not planting native vegetation, and was in violation of the easement.

A requirement to restore undeveloped land after construction is not that unheard of, and on a delicate seaside ecosystem, probably common place.  But again, the easement should have been very clear in a title search, and the current owners have no one to blame but the title company if they did not know about this....

[JC Jones]

Craig,

According to the appellate court opinion the course was built sometime after 1986, after the easement was recorded.

Obviously the easement is still alive, otherwise the CCC wouldn't be able to enforce it.

For those who are interested in the case and the background facts, here is the link to the opinion:

http://caselaw.findlaw.com/ca-court-of-appeal/1313642.html

You'll find that the easement was a condition of receiving the building permit, as Craig rightly pointed out.

Furthermore, many easements and recorded restrictions (including HOA Bylaws, which are common to many of us) run with the property in perpetuity, and that is very usual, however alien it might be to Pat Mucci's prudent thought  .  Although some states have laws prohibiting private contracts to run in perpetuity, often times those laws are circumvented by restrictions/covenants/easements that automatically renew.

I'm sure anyone who would like a copy of the easement could quite easily call the CCC and order one.  Also, I'm sure anyone who wanted to know what native grass is, as understood by the CCC, could probably look that up or place a call.

[Lou_Duran]

Counselor Jones,

The CCC just like any other holder of an easement also has the option of abandoning the easement.  I would argue that given the facts- a long period of time without enforcing it with no negative effect on the property and the surroundings, ie. the foreign grasses weren't taking over adjacent properties, including the 100+ times larger Cypress Point Club- this should have been the appropriate response of a truly "progressive" organization.

I've actually been successful doing this (abandoment of an easement) with a city in north Texas on behalf of a client and two adjacent property owners.  After showing the city that it had an easement for a public alley that had never been constructed and remained mostly unmaintained (native grasses and weeds mown irregularly), and gaining the approval of the adjoining property owners, a unanimous vote of city council a month following the initial reading did the trick.  The easement was removed, and my client had full use of an additional 10,000 s.f. of his property (which he later sold at $5/s.f.),

This option probably never crossed the mind of the CCC, which I think is emblematic of why CA, despite its most fortuitous location, fantastic climate, incomparable natural beauty, and bountiful resources is sinking into the ocean economically.   And perhaps also why the hell-hole that many think is Texas is faring relatively well.

Really, who was hurt by someone located next to a golf course having a rather inobstrusive small course on very limited space which blended in well with the adjacent property?  The same mindset if present in north Texas would likely have prevented the abandoment of the easement to the detriment of all legitimate stakeholders.

[Sean_A]

Lou

I suggested earlier that perhaps CCC has no obligation under law to enforce their easements.  I don't know if this is the case, but I wouldn't in the least be surprised.  Resources for enforcment on all sorts of government planning etc are slim and may rely on citizens to be their ears and eyes.  Equally, it may be incumbant upon the property owner when investigated for not upholding the easement to prove that what he has done has in fact done no harm. 

Ciao

[JC Jones]

Counselor Jones,

The CCC just like any other holder of an easement also has the option of abandoning the easement.  I would argue that given the facts- a long period of time without enforcing it with no negative effect on the property and the surroundings, ie. the foreign grasses weren't taking over adjacent properties, including the 100+ times larger Cypress Point Club- this should have been the appropriate response of a truly "progressive" organization.

I've actually been successful doing this (abandoment of an easement) with a city in north Texas on behalf of a client and two adjacent property owners.  After showing the city that it had an easement for a public alley that had never been constructed and remained mostly unmaintained (native grasses and weeds mown irregularly), and gaining the approval of the adjoining property owners, a unanimous vote of city council a month following the initial reading did the trick.  The easement was removed, and my client had full use of an additional 10,000 s.f. of his property (which he later sold at $5/s.f.),

This option probably never crossed the mind of the CCC, which I think is emblematic of why CA, despite its most fortuitous location, fantastic climate, incomparable natural beauty, and bountiful resources is sinking into the ocean economically.   And perhaps also why the hell-hole that many think is Texas is faring relatively well.

Really, who was hurt by someone located next to a golf course having a rather inobstrusive small course on very limited space which blended in well with the adjacent property?  The same mindset if present in north Texas would likely have prevented the abandoment of the easement to the detriment of all legitimate stakeholders.

Lou,

It appears as though they did not try the abandonment argument, likely because it was a negative rather than a positive easement.  Nonetheless, they tried effectively the same argument with the estoppel approach and were unsuccessful.

I don't disagree with you that the CCC could have chose to ignore the non-compliance.  My original point was that if you are a "rule of law" type you don't advocate for non-enforcement of the law no matter how absurd, rather, you work to change the law.

Lastly, I don't think it had anything to do with aesthetics as you seem to suggest.  It was an easement to prevent (more?) non-native species of grass from inhabiting the coastline.

You are right, Texas is by far the most progressive (if progressive is to mean effectively regressive) in their laws and I agree, it makes it a more desirable place to live.  In fact, were they ever to succeed with their secession, you'd have me as your new neighbor!

[Craig Sweet]

Lou...the next time you're in Montana I would be happy to show you the effects of non native species on our environment. The costs to eradicate them, or to keep them out of Montana, is HUGE!

We now have wash stations along the famed Madison River to wash off boats and fishing equipment in an effort to keep these damn mollusks out of the river system.

[Mike Benham]

Before:





After:

[John Kavanaugh]

I don't think there is any question that the property is more attractive without the "golf course".  The commission did the public a service.

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