City of San Diego v. Caryon Properties CA4/1 (2015) · DecisionDepot
City of San Diego v. Caryon Properties CA4/1
California Court of Appeal Aug 31, 2015 No. D065915Unpublished
Filed 8/31/15 City of San Diego v. Caryon Properties CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF SAN DIEGO, D065915
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2009-00095551- CU-EI-CTL) CARYON PROPERTIES, LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
William S. Dato, Judge. Affirmed.
Law Offices of Martin N. Buchanan and Martin N. Buchanan for Defendant and
Appellant.
Jan I. Goldsmith, City Attorney, and Carmen A. Brock, Deputy City Attorney,
for Plaintiff and Respondent.
The City of San Diego (the City) filed an eminent domain action against Caryon
Properties, LLC (Caryon) to acquire various temporary and permanent easements on
Caryon's property for the purpose of expanding Carroll Canyon Road and adding high
occupancy vehicle lanes to Interstate 805 in San Diego. The parties disputed the value
of the property and whether a portion of it could be rezoned for light industrial use
thereby substantially increasing its value. Prior to trial, the City moved to exclude
Caryon's valuation evidence and determine the scope of the City's existing easements on
Caryon argues the trial court misinterpreted the flowage easement as being
equivalent to a dedication of natural open space. We reject this argument.
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Caryon first asserts that the trial court's interpretation of the flowage easement
was erroneous because the language of the easement makes no reference to maintaining
the property as natural open space. Caryon explains the easement's building, planting,
grade change, and pipeline restrictions as being consistent with the easement's purpose
of providing for the natural flowage of waters. Based on our independent review of the
language of the flowage easement and nonconflicting extrinsic evidence, we disagree
with Caryon's narrow reading of the flowage easement. The plain language of the
flowage easement was on its face more restrictive than the open space easement on Lot
75 as the flowage easement prohibited "the erecting of buildings, walls, fences or other
structures, or the planting or growing of trees or shrubs, or changing the surface grade,
or the installation of privately owned pipelines." These restrictions were not included in
the open space easement. Rather, the open space easement expressly allowed the owner
to "plant and maintain trees, shrubs and other landscaping elements; and to install and
maintain underground pipe systems, sprinklers and appurtenances necessary to maintain
landscaping." While the flowage easement did not specifically state that the property
had to be maintained in its natural state, the prohibitions outlined in the easement
reflected that purpose.
Moreover, the EIR for the Lusk Industrial Park reinforces that the intent of the
flowage easement was to retain Lot 75's natural state. As set forth in the EIR, one of the
measures necessary to mitigate potential biological impacts and preserve existing visual
resources was to designate that Lot 75 would remain open space as shown on the
tentative map. The final map did not match the tentative map in that the open space
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easement on the tentative map was divided into separate open space and flowage
easements on the final map. However, the City's Subdivision Board's 1979 resolution
approving the Lusk Industrial Park set forth as a condition of approval that the
mitigating measures set forth in the EIR had to be complied with as a condition of the
final map and required an open space easement as shown on the tentative map. In
addition, the resolution required "a flowage easement satisfactory to cover the
floodplain area running through the southerly portion of the property, sufficient to
accommodate the 100-year frequency flood." Taken together, these requirements
establish that the flowage easement in this case was intended both to accommodate the
natural flowage of water and to mitigate potential biological impacts by retaining Lot
75's natural biological and visual resources.
Caryon next argues the trial court erred in relying on the tentative map and EIR
because only the final map was recorded and provided notice to Tresize of the
restrictions on the property. Caryon is essentially arguing that the trial court imposed
additional restrictions on Lot 75 by relying on extrinsic evidence. "Although extrinsic
evidence is not permitted in order to add to, detract from, or vary the terms of an
integrated written agreement, extrinsic evidence is admissible in order to explain what
those terms are." (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521.)
"Therefore, extrinsic evidence as to the circumstances under which a written instrument
was made has been held to be admissible in ascertaining the parties' expressed
intentions, subject to the limitation that extrinsic evidence is not admissible in order to
give the terms of a written instrument a meaning of which they are not reasonably
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susceptible." (Id. at p. 522.) " 'Intent of the parties may be ascertained from the
language of the deed and from relevant parol evidence, including that which described
the surrounding facts and circumstances existing at the time of the conveyance in
question.' " (Id. at pp. 522-523.) "[I]n ascertaining the intention of the grantor [of an
easement], as in any other contract, in the absence of an express declaration, the nature
of the easement may be determined by evidence aliunde the deed." (Id. at p. 523.)
Caryon contends the trial court erred in supplementing the purpose of the
flowage easement by adding a requirement that the property be retained in its "natural
state" when the flowage easement's only stated purpose was to provide for "the natural
flowage of waters." We do not agree that the trial court added terms to the flowage
easement based on extrinsic evidence. The trial court interpreted the flowage easement
on the final map and concluded that it was "effectively a designation of open space."
Although the trial court recited the history of the flowage easement, including the EIR's
requirements and open space designation in the tentative map, its conclusion was
largely based on the significant prohibitions in the flowage easement regarding the
erection of buildings, walls, fences and other structures, planting or growing of trees or
shrubs, changing the surface grade, and installation of privately owned pipelines. The
trial court did not rely on the historical context of the flowage easement, including the
EIR and tentative map, to modify or supplement the terms of the flowage easement as
shown on the final map. Instead, those documents provided background and reinforced
the trial court's conclusion based on the language of the easement that the intent of the
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flowage easement was to maintain the natural condition of Lot 75 to, among other
things, protect habitat and biological resources.
Even if the trial court's conclusion was based on the nonconflicting extrinsic
evidence, namely the EIR and tentative map, the trial court did not err in considering
that evidence. The flowage easement was reasonably susceptible to an interpretation
that it required the owner to maintain the property in its natural state. While the
easement states it is for the "natural flowage of waters," it goes on to set forth
restrictions on building, planting, grading and pipeline installation. Those significant
restrictions suggest a purpose to maintain the property's natural state. Thus, the trial
court could properly consider the circumstances surrounding the conveyance to
determine the parties' intent.
Lastly, Caryon contends that under the trial court's interpretation, all flowage
easements utilizing the City's standard easement language, as was used here, would be
transformed into a requirement that property owners forever maintain their properties in
their natural state. Although we agree with the trial court's interpretation of the flowage
easement in this case, we do not express any views regarding the City's standard
language for flowage easements and whether that language necessarily amounts to a
designation of open space. Rather, interpretation of an easement may involve
consideration of such matters as the circumstances under which the deed was made, the
type of rights conveyed, the relationship between the easement and the other real
property owned by the recipient of the easement, the conduct and intent of the parties,
and the actual and contemplated uses by the parties at the time of the conveyance.
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(Moylan v. Dykes (1986) 181 Cal.App.3d 561, 569; City of Manhattan Beach v.
Superior Court (1996) 13 Cal.4th 232, 246; Maywood Mut. Water Co. No. 2 v. City of
Maywood (1972) 23 Cal.App.3d 266, 270-271.) In light of these principles and the
rules governing interpretation of easements, we decline to accept Caryon's over
generalized proposition that the trial court's finding, or ours, converts flowage
easements utilizing the City's standard language into natural space requirements.
B. Sufficiency of the Evidence on Probability of Rezoning
Caryon argues it presented sufficient evidence for a jury to find a reasonable
probability of rezoning. We disagree.
" ' "[T]he determination as to whether or not there is a reasonable probability of a
[use] change is ordinarily a question of fact for the jury." ' " (Metropolitan Water Dist.
of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 967
(Metropolitan Water).) "Before such evidence may be presented to the jury, however,
the trial court must first determine whether there is sufficient evidence that would
permit a jury to conclude there is a reasonable probability of rezoning in the near future.
Evidence of a reasonable probability of a zoning change in the near future ' "must at
least be in accordance with the usual minimum evidentiary requirements, and that which
is purely speculative, wholly guess work and conjectural, is inadmissible." ' [Citation.]
The evidence, if credited, must also be sufficient to establish that rezoning is reasonably
probable. [Citation.] If the trial court determines that no fact finder could find a
reasonable probability of rezoning on the record presented, it may exclude all evidence
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and opinions of value based on a use other than that authorized by the existing zoning."
(Id. at p. 968; see also Code Civ. Proc. § 1260.040.)
Here, Caryon acknowledged that if the flowage easement required the property to
be maintained as open space, it would substantially reduce the probability of rezoning.
Caryon also did not dispute that in order to rezone Lot 75, it would need to request an
amendment to the Community Plan and the City's General Plan because the Community
Plan showed the property as open space. However, Caryon's experts testified that there
was a high probability of rezoning to light industrial use. The City's experts disagreed.
While resolving conflicts in expert testimony is for the jury to decide (City of
Riverside v. Kraft (1962) 203 Cal.App.2d 300, 304), the trial court acts as a gatekeeper
by excluding evidence that is " ' "purely speculative, wholly guess work and
conjectural." ' " (Metropolitan Water, supra, 41 Cal.4th at p. 968.) Caryon's experts
based their conclusion in part on their belief that Lot 75's AR-1-1 zoning was a "holding
zone" for future development. This contradicted the trial court's ultimate legal finding
and our conclusion that the flowage easement required that Lot 75 be maintained in its
natural state.
Caryon's experts also simplified the rezoning process by stating that all projects
have constraints that can be accommodated by working with City staff. However, those
opinions did not account for an interpretation of the flowage easement as requiring the
property be retained in its natural condition. Rather, Peterson opined that the
designation of Lot 75 as open space in the Community Plan was simply an error that
required "clean up."
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Peterson further stated rezoning was probable in this case because the City
Council member for the area was favorably inclined to business and development and
the other Council members would simply go along with her. Peterson had not talked to
the Council member for Lot 75 regarding the rezoning at issue in this case. Based on
our review, Peterson's opinion as to what that Council member and the entirety of the
City Council would do was nothing more than guess work.
Further, Caryon's experts did not point to any properties with similar constraints
as Lot 75 that had been rezoned. In particular, Lot 75 faces numerous hurdles to
rezoning, including amending the General Plan and Community Plan, accommodating
the natural flowage of water in a manner consistent with the flowage easement's
restrictions, working with the Habitat Plan's requirements, acknowledging the Lusk
Industrial Park's prior mitigation agreements, and rezoning to a zone that accomplished
the same purpose as the existing flowage easement. For example, the projects Morrison
identified were in a different position than Lot 75 because they were raw land that had
not been previously subdivided. Similarly, although Peterson testified that Lots 105,
106 and 107, which included the Nancy Ridge Business Park, were rezoned from
AR-1-1 to light industrial and were subject to a flowage easement, he was unaware if
those lots were designated as open space on the Community Plan at the time they were
rezoned. Moreover, the Nancy Ridge Business Park development resulted in a net gain
of sensitive habitat in the Habitat Plan and the area for the proposed storage use was
entirely within the portion of the site designated as light industrial and did not encroach
into the open space area.
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Based on the trial court's interpretation and our consistent interpretation of the
flowage easement as requiring that the owner maintain its natural condition, we
conclude Caryon failed to present evidence that there was a reasonable probability of
rezoning in the near future. Caryon's experts based their opinions on their
understanding that Lot 75 was in a "holding zone" rather than subject to a natural space
requirement and failed to give any basis for how Lot 75 could be rezoned in light of its
restrictions. Accordingly, as the trial court stated, "[A]ny contention that the City
would in the near future rezone the property to a designation inconsistent with open
space is, at best, speculation and conjecture."
Lastly, Caryon argues for the first time in its reply brief that even assuming that
the property could not be rezoned, the trial court's misinterpretation of the flowage
easement and order striking Doré's second appraisal precluded Caryon from valuing the
property based on its highest and best use consistent with the current AR-1-1 zoning,
which included such uses as a plant nursery. It is well settled that arguments raised for
the first time in an appellant's reply brief are forfeited unless good reason has been
shown for failure to raise them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th 469,
482, fn. 10; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847, 894, fn. 10.) Caryon does not explain why it failed to address this
argument in its opening brief and we conclude it forfeited this issue by raising it for the
first time in its reply brief.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.
22
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court correctly interpreted a flowage easement as a de facto open space designation, thereby precluding the property owner from presenting valuation evidence based on a speculative future rezoning to light industrial use.
Issues
Whether the trial court erred in its legal interpretation of a flowage easement as an open space designation.
Whether the trial court erred in excluding expert valuation testimony based on a probability of rezoning that the court found to be speculative.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the trial court found that the probability of rezoning Lot 75 turned on a legal question, namely the proper interpretation of the flowage easement.”
“The interpretation of an easement, which does not depend upon conflicting extrinsic evidence, is a question of law”