OPINION
By KEITH TURNER Special to the Palisadian-Post Pacific Palisades is a special place, tucked between the ocean and mountains, where many homeowners enjoy sweeping views of Santa Monica Bay, the shoreline, canyons and dramatic, undeveloped mountain landscapes. But in every neighborhood in the Palisades, homeowners’ view rights are under attack by a nearby construction or remodeling project that increases the ‘footprint’ of the existing home. Homeowners in almost every neighborhood have had to go to court during the past five years to enforce or protect their view rights. During the past year, the Los Angeles Superior Court has issued preliminary injunctions that stopped construction of two separate Palisades projects because the proposed construction would have infringed or obstructed another property owner’s view rights. A halted construction project is an expense that no developer or homeowner wants to bear. The litigation process is often avoided by most homeowners because of its cost to the homeowner and the unpredictability of the result to the entire community. The reality is that it costs at least $50,000 to $100,000 in attorneys’ fees and related litigation expenses to take a case to trial. (In 1985, California enacted a comprehensive law for homeowners associations, the Davis Striling Act. That law provides for the recovery of attorneys’ fees to the prevailing party. Thus, a homeowner can more likely afford the risk of litigation with the hope of recovering the attorneys’ fees they incur in enforcing their view rights. Because most of the CC&Rs in Pacific Palisades were recorded before 1985, it is not clear whether they are subject to Davis Striling Act.) Both sides of a view rights dispute and the overall community suffer from the unpredictability factor. For instance, in 2005 the Court of Appeal in the Zabrucky v. McAdams case added the word ‘unreasonably’ to the Marquez Knolls’ CC&Rs, which originally provided in relevant part: ‘No’structures erected’may at present or in the future obstruct the view from any other lot….’ Thus, CC&Rs now read: no structure ‘may at present or in the future unreasonably obstruct the view from any other lot.” (The Marquez Knolls CC&Rs also limit residences built on lots within the subdivision to one-story, single-family dwelling.) The other Palisades neighborhoods’ CC&Rs are probably subject to the same judicial rewriting as what happened to the Marquez Knolls CC&Rs. On first blush, adding the word ‘unreasonably’ seems to be a reasonable compromise between the competing rights: a property owner’s right to freely develop and use his or her property; and the protection of a neighbor’s view rights. But the practical effect it has created is great uncertainty in terms of both what construction or remodeling is permissible and what is relevant to resolve a view dispute in court. Instead of simply looking at whether the existing project expands the original ‘footprint’ and obstructs the view, now parties try to make almost everything relevant to prove whether a project ‘unreasonably obstructs the view’ or not. Every aspect of a complaining homeowner’s personal life has now become fodder in a view rights dispute. Instead of a one- or two-day trial about how the intended project differs from the original project, cases have become a five- to ten-day court trial on all sorts of personal issues that seemingly have nothing to do with how the new project obstructs the view. Often, homeowners faced with a construction or remodeling project that will obstruct or infringe on their view will first try to resolve the issue with the developer or their local homeowners’ associations. The view rights battle is often between a ‘spec’ home builder who is trying to maximize house size–and profits–against long-time residents. Because some of the major Palisades homeowners’ associations have been sued for involving themselves in such disputes, they may be reluctant to get between the parties. Once the actual construction has started, it is generally more expensive for both sides in terms of legal fees to resolve the matter. Also, it can be very stressful for a family when a neighboring project infringes on their enjoyment or use of their property. Thus, homeowners are often very frustrated and feel powerless in these situations. Many attorneys involved in these disputes have been advising both sides to seek a negotiated settlement before resorting to expensive litigation. But the stakes are high for the defendant because a court could order a project that it deems to be in violation of a protected view right to be demolished or modified. Over 95 percent of lawsuits end in settlement, and the money spent on litigation generally does not sufficiently advance either side’s position. The Zabrucky v. McAdams appeal case was retried last year in Santa Monica Superior Court, and the judge found that the construction project at issue did not ‘unreasonably obstruct’ the plaintiffs’ view because only 10 percent of the overall view was obstructed. On appeal, the homeowners, Mr. and Mrs. Zabrucky, are arguing that the phrase ‘unreasonably obstruct’ needs an objective definition because of the uncertainly and litigation cost that phrase has caused. Seventeen other Marquez Knolls residents have filed their own ‘amicus’ brief, arguing that ‘unreasonably’ should not apply to expansions of existing houses, and the Marquez Knolls Property Owners Association has joined with that brief. The Court of Appeal in downtown Los Angeles is scheduled to hear arguments on that issue at 9 a.m. on March 7. Thus, the time is now for Palisadians with opinions on either side of the issue to act. Property owners need a measure of certainty to know that their recorded rights are going to be interpreted and enforced consistent with the community’s aesthetic values. Palisadians on either side of the issue need to make their views known, including to their neighborhood associations. Individual homeowners and their associations can also make their views known to the courts through ‘amicus’ participation in pending cases and appeals. In any event, the upcoming Court of Appeal hearing and decision in the Zabrucky v. McAdams case may very well decide the future of view protection rights in Palisades. (Keith Turner (ktuner@turnerliu.com) is a Pacific Palisades resident and real estate litigation and title attorney. He is also a founding partner in the ‘Pacific View Rights Center’ (http://pacificviewcenter.com) with fellow Palisadian and attorney Don Erik Franzen, who is lead counsel in the pending Zabrucky v. McAdams case. The View Rights Center provides mediation, arbitration and litigation services for view rights-related disputes.)
This page is available to subscribers. Click here to sign in or get access.
