- Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 132 Cal.Rptr. 337, the first unanimous California Supreme Court decision under the California Environmental Quality Act. The case rejected the less protective “functional equivalent” doctrine in favor of stronger protection in the Act’s Section 21080.5 regulatory program, in connection with fixing hunting seasons.
- Myers v. Santa Clara County Board of Supervisors (1976) 58 Cal. App.3d 143, 129 Cal.Rptr. 902, a Court of Appeal case which established that the State Resources Agency has sole authority to determine which projects are exempt from the California Environmental Quality Act, and that minor land divisions are not exempt.
- Save El Toro Assoc. v. Days I (1977) 74 Cal.App.3d 64, 141 Cal.Rptr. 282, a Court of Appeal decision which is the seminal case on the legal adequacy of general plans and necessity for a valid general plan as a precondition to a city’s authority to issue subdivision maps.
- Simac Design v. Alciati (1979) 92 Cal.App3d 146, 154 Cal.Rptr. 676, a Court of Appeal case holding an initiative-enacted local growth control ordinance valid against challenge by developers.
- Save El Toro Assoc. v. Days II (1979) 98 Al.App.3d 544, 159 Cal.Rptr. 577, a Court of Appeal case which clarified distinctions between the “substantial benefit” and the “private attorney general” theories of awarding attorneys fees in public interest cases.
- Heninger v. Dunn (1980) 101 Cal.App.3d 858, 162 Cal.Rptr. 104, a Court of Appeal case which holds that the statutory double and treble damages provisions for injuries to trees can be measured by the cost of replanting a California native forest environment destroyed by construction of a trespass road.
- Grimsley v. Board of Supervisors of the County of San Benito (1985) 169 Cal.App.3d 960, 213 Cal.Rptr. 108, a Court of Appeal case which holds that award of attorney’s fees will not be made to a successful party in a lawsuit resulting in the enforcement of an important right affecting the public interest unless the party seeking such fees reasonably endeavored to enforce its rights without litigation.
- Heninger v. County of Santa Clara (1987) 186 Cal.App.3d 601, 231 Cal.Rptr. 11, a Court of Appeal case establishing that statute requires an Environmental Impact Report, rather than a Negative Declaration, to be prepared whenever there is evidence that a project may have an adverse impact upon the environment, even if there s a countervailing evidence that an adverse impact may not occur.
- Committee for Progressive Gilroy v. State Water Resources Control Board (1987) 192 Al.App.3d 847, 237 Cal.Rptr. 723, a Court of Appeal case holding that re-rating the capacity of a failed sewer plant to its initial design level is categorically exempt from the requirement for an Environmental Impact Report.
- Towards Responsibility in Planning v. City of San Jose (1988) 200 Calo.App.3d 671, 246 Cal.Rptr.671, 246 Cal.Rptr. 317, a Court of Appeal case holding that adoption of an Environmental Impact Report may not be delayed to include the results of works in progress which might shed some additional light on the subject.
- Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 271 Cal.Rptr. 393, a Court of Appeal case, holding that the California Environmental Quality Act does not require the City of Gilroy to prevent the California Tiger Salamander from becoming extinct as a result of urban development.
- Alfaro v. Community Housing Improvement System & Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, a Court of Appeal case upholding the enforceability of a deed restriction impose on homebuyers through fraud, but allowing those homebuyers against whom the statute of limitations had not run to proceed with a fraud action for damages against the sellers.
- Tichinin v. City of Morgan Hill (2009) 171 Cal.App.4th 1079, a Court of Appeal case, holding that attorneys have a right and duty to investigate their cases, and that retaliation against them by government for doing so is a violation of the First Amendment rights to petition and of free speech that is actionable under the Federal Civil Rights Act, 42 USC 1983.
Land Use Projects/Clients
- Protection of Lumber Mill Operations for American Forest Products/Georgia Pacific (Richard Roby) I represented American Forest Products, then a major California timber operation that was later absorbed by Georgia Pacific Corporation. Working with in house counsel (Mr. Roby), I conducted litigation against, and negotiations with, a local developer who was proposing commercial and residential development adjacent to the company’s local lumber mill (Martel area, County of Amador) that would have generated complaints of noise concerning night time mill operations that American Forest Products feared would lead to a forced closure of the mill, as the company had previously experienced with a mill in the Fresno area when urban development encroached upon it. Mr. Roby and I crafted, and obtained approval by the developer for, a noise easement for mill operations over the developer’s land, as the solution.
- Christen Industries/Christensen Ranch Airport (Frank Christensen). I represented Christen Industries, a manufacturer of stunt airplane kits and the owner of the Christensen Ranch Airport in San Benito County, near Hollister, California, both owned by Frank Christensen. Christen Industries was a major employer in San Benito County. My primary land use responsibilities were protecting the airport from conflicting residential development in the surrounding area, so as to avoid the erection of structures in the flight paths to and from the Airport that would pose a danger to both occupants of such structures and pilots and passengers of the airplanes using the airport. This entailed frequent meetings both public and private with County elected representatives and appointed representatives (Board of Supervisors and Planning Commission members), as well as Planning Officials, Local Developers and others.
- Urban Development with Reforestation for Seven Hills Properties (Greg Rocca). I obtained site approval for the developer of a Walgreen’s store which had been experiencing heavy opposition from City Staff and the Planning Commission in Morgan Hill. The reversal was accomplished by proposing a landscaping design for the parking lot that will develop into a California Native Oak Forest, which, at “climax” development in a few decades, will have trees whose foliage “crowns” will touch each other, so that the entire parking lot will transform into a forest. The project required much attention to horticultural detail, such as drafting an easement to be recorded against the property which will require the present owners, and all future owners, to engage in special growth and maintenance programs to (1) assure development of the trees into the contemplated forest, and (2) protect against the hazard of “sudden limb drop,” which can occur in oak trees. At little added expense, the developer will now be reforesting Morgan Hill at the same that he paves it over, and may see economic value added to his site through the increased customer draw which it is anticipated the forest will give the store.
- Addition to Mt. Madonna Park (Carolyn Nielson). I represented the owner of a 400-acre parcel of open space land that fronts on Redwood Retreat Road and shared more than ½ mile of boundary with Mt. Madonna Park. I helped persuade the Santa Clara County Board of Supervisors to purchase the land as an addition to the Park. The effort required overcoming vehement opposition from other residents on Redwood Retreat Road, and much work with County Staff, the Board of Supervisors, and the Parks Commission, as well as with the Trust for Public Land, which initially purchased the land and thereafter sold it to the County.
- First City of Morgan Hill Williamson Act Contract. I represented the owners of a 10-acre cherry orchard in Morgan Hill, who desired to remain in farming rather than sell their parcel for conversion to residential subdivision. I helped persuade the City of Morgan Hill to adopt an ordinance permitting Williamson Act Contracts, and to enter into a contract with my clients.
- El Toro Peak Acquisition (Edward Lazzarini). Following the Save El Toro Association v. Days case described above, I represented a developer, now deceased, in negotiating an arrangement with land owners, the City of Morgan Hill and the County of Santa Clara, in which the parcel of land whose development was prevented by the Save El Toro case was granted development of a few low-elevation parcels in exchange for a permanent open space easement on all of the scenic view portions of the parcel. This was followed several years later by purchase with City and County funds of other scenic portions of the peak and imposition of open space easements on these as well.
- Fish and Game Stream Bed Permit. I represented Bonfante Gardens, Inc., now Gilroy Gardens, in obtaining a § 1603 Stream Bed Permit from the Department of Fish and Game, allowing construction and maintenance equipment to cross the creek that bisects the Park.
Licensed to Practice in All California Courts: All Superior Courts, All Courts of Appeal and the Supreme Court.
Licensed to Practice in United States District Court for the Northern District of California, and the United States Court Of Appeal for the Ninth Circuit.