San Diego Real Estate Round-Up: Comfort Zone for Churches

January 10, 2002

San Diego, California has had some landmark cases involving churces and local land use officials. Findlaw is an on line research service for members of the public and Thompson-West is a service for legal professionals.

In disputes between churches and local land-use officials, Congress has tipped the scales in favor of the churches with recently passed legislation. Although its full impact is being sorted out by the courts, the law prohibits any land-use regulation that has the effect of imposing a substantial burden on the exercise of religion, unless the government proves that such a burden furthers a compelling governmental interest and is the least restrictive method of doing so.

The new measure already has been a potent weapon for religious groups in conflicts with localities over the location, size, and design of churches, synagogues, and mosques, as well as schools, day-care centers, homeless shelters, summer camps, and other church-run uses of property. Even prayer meetings held at homes benefit, as using any real property for a religious purpose is a protected religious exercise. This can be considered a First Amendment Right to the United States Constitution.

Counties and municipalities will have to show more flexibility in dealing with religious uses of property, although they have not been rendered powerless every time a church applies for a land-use permit. It can be expected that religious land uses will be allowed in more zoning districts and are not as likely to be subjected to special conditions. Certainly, any zoning ordinance that excludes churches from the entire locality is ripe for a court challenge. The law explicitly prohibits any regulation that "totally excludes religious assemblies from a jurisdiction," or unreasonably limits them.

San Diego Real Estate Round-Up: A Preexisting Regulation May Be a "Taking"

January 5, 2002

San Diego has had many cases in which land was taken for a public purpose. Some of the major highways in San Diego are built where houses once stood. When a landowner challenges a restriction on the use of land on the grounds that it is so burdensome as to be a "taking" of the property for which the government must pay compensation, the United States Supreme Court has said in past decisions that a court should consider, among other things, the extent to which the regulation interferes with the landowner's "reasonable investment-backed expectations."

If the restriction was already in place when the owner acquired the property, the question arises as to whether the owner could have reasonable expectations for any use of the property that is in conflict with the restriction. After all, the purchaser "moved to the problem" because he should have knowledge of the restriction that is already in place. There have been many cases regarding these issues in the San Diego Superior Court over the years.

Now the Supreme Court has given landowners new hope with a contrary ruling. Knowing about regulations at the time of sale will still make it harder to win because of the rule about reasonable expectations, but it will not completely preclude such a taking argument. The Court was unwilling to categorically deny relief to someone subjected to the most extreme or unreasonable land-use restriction solely because the restriction was in place when the property was acquired.

The practical effect of the Supreme Court's ruling is to increase the significance for the property owner of creating a record that will demonstrate that the new owner is expecting to acquire all of the same rights as the prior owner, including the right to challenge the legality of the preexisting regulations. The language of the sales contract itself can be drafted to reflect these expectations. The purchaser's actions, such as hiring an architect or a consultant and spending money in the approval process, may speak as loudly about expectations as words in a contract. The Supreme Court left some matters unresolved, but it unquestionably has left open a door to taking arguments that was previously closed by many courts.

Our law office of Law Office of Scott C. Soady, A Professional Corporation is commited to trying to keep up to date in all aspects of the law. Please feel free to e mail us with your legal question and if we cannot answer it we will refer you to an attorney or a California State Bar Association Referral Service which does.

San Diego Real Estate Round-Up: Synthetic Stucco Suits

January 1, 2002

San Diego, California has seen many types of exterior coating on homes. These range from stucco to wood to stone and many other materials. Given the propensity of San Diego California homes to catch on fire given the fire damage sustained in San Diego in the past, it is important to understand the materials used on the exterior of your home. The City of San Diego Fire Department has important information on its website.

In the early 1990s, home builders began to use synthetic stucco (sometimes referred to as "Exterior Insulation and Finish (EIF) System") as a substitute for conventional masonry such as stone, brick, and stucco. The product has the look of stucco, but underneath are layers of styrofoam, plywood, and fiberglass mesh.

For a price comparable to real stucco, the synthetic version provides better insulation, with less cracking and more flexibility. These advantages may be outweighed, however, by a drawback that has spawned many lawsuits around the country. If water gets through windows, doors, or roof lines and behind the synthetic stucco, it may have nowhere to go, causing rotting and sometimes even toxic mold. The latest EIF systems, if properly installed, allow the water to drain away, but in the meantime some court dockets are becoming crowded with litigation brought by owners of damaged homes.

Many builders are being sued for negligence in not applying synthetic stucco properly, or for breach of contract, breach of warranties, fraud, and violation of state consumer protection laws. In a majority of cases, the property damage can be traced to mistakes in applying the synthetic stucco that allow water to penetrate its surface, or do not allow water to drain, or both. Claiming that the product itself is defective, or that unqualified people are being certified to install it, some builders and homeowners are also taking manufacturers to court.

In one case, a state appellate court allowed a lawsuit to go to trial by jury after a new home was damaged by rotting wood and termite infestation. Although the builder knew of progressive damage to the house caused by synthetic stucco while the house had been rented, there was evidence that he misrepresented to buyers of the house that it was a "quality house" with only minimal past water problems and no structural problems.

In a similar case from another state, an appellate court affirmed a jury verdict of nearly $200,000 against a home builder. Whether or not the builder knew about inherent problems with synthetic stucco, was at fault in using it instead of real stucco, or installed it improperly, the failure to keep out moisture was a major structural defect for which the builder was responsible.

No attorney or law firm, including Law Office of Scott C. Soady, A Professional Corporation can guarantee any result and these cases are used for illustrative purposes only. Please feel free to e mail us if you have a legal question.