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Jacob, Melinda
Subject:
FW: Lions Hall Public Hearing 28 July
From: Jack Sawyer [mailto:jacksawyer@comcast.net]
Sent: Wednesday, July 20, 2011 5:04 PM
To: Sage, Aaron E.
Subject: Lions Hall Public Hearing 28 July
Dear Members of the Zoning Adjustment Board-Thank you for your work with the Final EIR on Lions Hall at the 28 July Public Hearing
I call your attention to the following seven items:
1. Letter of 12 May 2011 (page 86 of the Final EIR), and the following six attachments:
2. "Financing the Next 90 Years," showing how disadvantageous a long-term economic deal this
project is for the church. (The EIR expresses as a purpose, to help the church. It won't.)
3. "Dear Fellow Parishioner," where seventeen senior parish members called for a written
expression of opinion from parishioners about doing this project or not. This didn't happen.
4. "Global Warming Comes Home," outlining the ecological cost of this project.
5. "Some Unanswered Questions Concerning Redevelopment," most of them still unanswered.
6. "Privatization of St. Mark's," suggesting consequences of letting economic considerations
take primacy over community concerns and control. We, the church, and the community, are at
risk of giving away our treasure and our mission.
7. Letter of 4 November 2010 (not reiterated in 12 May 2011) which, though submitted in a
timely fashion, did not make it into the Draft EIR.
Gratefully,
Jack Sawyer, M.Div., Ph.D, President
Parker Street Foundation
2330 Parker Street
Berkeley, CA 94704-2818
(510) 540-0940 (voice and fax)
jacksawyer@comcast.nett
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1500 Woodmen Tower
1700 Farnam St
Omaha, NE 68102-2068
Tel: 402.344.0500
www.bairdholm.com
MEMORANDUM
VIA ELECTRONIC MAIL
TO:
Mr. Evan McDonald
FROM:
David C. Levy
Ben M. Klocke
DATE:
February 16, 2011
RE:
Adjoining Landowner’s Obligation of Lateral Support
You requested a summary of the obligations of an excavating landowner to provide
lateral support to the property and improvements of an adjoining landowner and the
obligations of the adjoining landowner in this regard. That summary is below.
I.
Every Landowner Has the Right to Lateral Support of Adjoining Property,
Subject to It’s Neighbors’ Right to Excavate Under Certain Conditions.
Every landowner is entitled to lateral and subjacent support from the adjoining land.
Cal. Civ. Code, § 832 (2011). However, the right to lateral support is subject to the
adjoining landowner’s right to make excavations on its land to construct improvements on
the neighboring landowner’s property. Id.
II.
An Excavating Landowner May Shift the Burden of Providing Lateral Support
for Excavations of Less than Nine Feet by Providing Notice to the Adjoining
Owner.
A.
An Excavating Landowner Should Give the Adjoining Landowner
Notice of All Excavation.
An excavating landowner is generally liable to the owner of an adjoining property for
any damage caused to the adjoining property by the excavation. The damage caused by
the excavation falls into two categories: (1) damage caused that could have been avoided
by taking proper precautions to protect the adjoining property, and (2) damage caused as
a result of negligent excavations. As discussed in further detail below, an excavating
landowner may never shift liability for damage caused by negligent excavations. However,
in certain circumstances, an excavating landowner may shift the burden of non-negligent
excavation damage by providing notice to the adjoining landowner.
DOCS/1020487.3
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February 16, 2011
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California law requires an excavating landowner to provide “reasonable” notice to
the adjoining landowner regarding the depth and timing of any excavations. Id. The notice
should give the adjoining landowner sufficient knowledge and time to take necessary
measures to protect its property. McIvor v. Mercer-Fraser Co., 76 Cal.App.2d
247, 252 (1976). Failure to give this notice renders an excavating landowner liable for any
damage resulting from the excavation to the adjoining landowner’s structures, regardless
of whether the excavation was otherwise negligent. Wharam v. Investment Underwriters,
Inc., 58 Cal.App.2d 346 (1943).
B.
An Excavating Landowner Must Give Enhanced Notice for Excavation
Below the Level of the Adjoining Landowner’s Walls or Foundation.
If it appears the excavation will be deeper than the walls or foundations of any
adjoining structures and is so close as to endanger such structure in any way, the
excavating landowner must give the adjoining landowner at least thirty days written notice.
Cal. Civ. Code, § 832(3) (2011). This notice should contain the same information as the
notice described in Section II.A, above, but it should also contain information regarding the
depth below which the excavation will be below the adjoining walls or foundations. If the
depth of excavation or other material facts pertaining to the excavation change subsequent
to the delivery of the notice, the excavating landowner must give the adjoining landowner a
new thirty-day notice. McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 253 (1976). After
delivery of the thirty-day notice, the excavating landowner must allow the adjoining
landowner to enter on the excavating landowner’s property to take measures to protect the
adjoining property from damage. Id. However, providing the notice does not entitle the
excavating owner to enter the adjoining property to take measures to protect the adjoining
property from the excavations. Puckett v. Sullivan, 190 Cal.App.2d 489, 494 (1961).
C.
Sufficient Notice Protects the Excavating Landowner from Liability for
Damage to the Neighbor’s Building.
Once the excavating landowner gives the adjoining landowner sufficient notice as
discussed in Sections II.A and II.B, above, the excavating landowner is not liable for
damage to the adjoining property caused by the excavation, provided such damage is not
caused by negligent excavating. Wharam v. Investment Underwriters, Inc.,
58 Cal.App.2d 346, 349 (1943). If negligent excavation causes the damage to the
adjoining property, notice will never be sufficient to protect the excavating landowner from
liability. Id. In making any excavation, the excavating landowner must use ordinary care
and skill and must take reasonable precautions to sustain the adjoining land for damage.
Cal. Civ. Code, § 832(2) (2011). The excavating landowner must exercise such standard
of care throughout the planning stages and throughout all stages of the excavations.
Sager v. O’Connell, 67 Cal.App.2d 27, 32 (1944).
For excavations of land owned by a public entity, giving notice as discussed above
does not shift the burden of damage caused by non-negligent excavations. Holtz v.
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Superior Court, 3 Cal.3d.296, 302 (1970). If a public entity excavates on its land, it is
strictly liable for damage to an adjoining landowner caused by the excavation. Id.
III.
If the Excavation Will Go Below Nine Feet, the Excavating Landowner’s
Obligations Increase and Strict Liability May Arise.
If the excavation will be more than nine feet below the adjacent curb level
(“standard depth”) and the adjoining land contains a structure at or below the standard
depth, California law requires the excavating owner (at the excavating owner’s cost) to
protect the adjoining land and structure(s), if the adjoining landowner allows the excavating
landowner to enter onto the property for this purpose. Cal. Civ. Code, § 832(4) (2011). If
done in a non-negligent manner, such precautions should protect the excavating
landowner from liability if damage occurs despite the precautions.
The statute is ambiguous and case law is silent on whether the excavating
landowner is liable for damage if the adjoining landowner refuses to allow access to the
adjoining landowner’s property. Accordingly, if an excavating landowner excavates below
“standard depth” without protecting the adjoining land because the owner of such land
refuses to grant the excavating landowner permission to do so, the excavating landowner
may be liable for damage (negligent and non-negligent) to the adjoining property resulting
from the excavation.
This ambiguity lends itself to an argument that the burden for non-negligent damage
resulting from excavations below “standard depth” shifts to the adjoining landowner if the
adjoining landowner refuses permission to enter its property to do work to protect it. While
we cannot unequivocally advise you that this is the law, we believe an excavating
landowner can make a good faith argument to this effect to gain access to the adjoining
property.
IV.
Practical Aspects of Working with An Adjoining Landowner.
The foregoing discussion demonstrates that while the statute may absolve you, as
the excavating landowner, of liability in many cases, it does not give you the right to enter
onto your neighbor’s land to do work to protect his building or yours from the effects of
your excavation. This leaves you with the difficult problem of deciding whether to proceed
at the risk of damaging your neighbor’s building and then arguing that the statute protects
you from liability for that damage, or altering your project to avoid the need to underpin the
neighbor’s foundation in the first instance. However, the threat of proceeding at the
neighbor’s risk (to some extent) does provide you with some negotiating leverage.
The statute and case law are silent as to what a neighboring landowner may
demand in terms of insurance, engineering, or other reviews, in exchange for allowing you
to underpin his foundation, for example. In our experience, some property owners are
reasonable in this regard, and others are not. The only tool the statute gives you,
unfortunately, is the ability to threaten to proceed, essentially at your neighbor’s own risk.
DOCS/1020487.3