As an experienced litigator or real estate lawyer, what are your available strategies if you encounter situations like these?

• Noise, dust, and vibrations from an operating gravel quarry have not impacted the surrounding ranches, but a housing developer seeks land use entitlements to build single family houses right on the edge of the quarry.
• Noise, dust and lights from a loading facility in a busy port have not been a problem for the surrounding industries, but a developer seeks to covert a water-front building to high-end residential lofts.
• Fish odors, lights and nighttime traffic at a 24/7 seafood processing plant have not caused problems for the surrounding golf course, but a developer proposes replacing the golf course with a luxury apartment complex.

With the severe shortage of housing in California’s urban and suburban areas, developers are pushing the housing envelope closer to existing industrial, mining, rail, sports, and other existing non-residential uses. The existing users fear nuisance claims and frequently defeat or severely limit the development proposals. New housing that does get built near existing uses often results in years of intractable conflict, resulting in costly and time-consuming legal and political battles.

The state and local legislative responses to this problem, such as advance disclosure requirements and right-to-farm laws, are helpful, but are generic and of limited usefulness. The traditional city planning responses, such as conditions of approval and deed restrictions have limited impact. Conditions of Approval end up buried in governmental documentation and are not recorded. Deed restrictions are recorded but are not sufficiently comprehensive and often are overlooked.

I have handled many of these battles over the last 30 years and have found that the single most effective solution to the standoff and litigation is the innovative use of a centuries-old instrument, the common easement.  Traditional easements allow people, vehicles, and livestock to pass from the dominant property across the servient property. The innovation, now known as a “Collaborative Land Use Easement” (aka “CLUE”) is a simple, affirmative easement, but with a twist:  Under a CLUE, the housing developer grants an easement allowing noise, dust, odor, vapors, vibration, and/or illumination to pass from the dominant (industrial) property across the servient (residential) property.

Under the CLUE:

• The recorded CLUE includes as an exhibit a disclosure that must be given to future buyers and tenants of the servient property.
• The existing user agrees not to take any action to defeat the developer’s application.
• The local government approves the development application, requires the recordation of the CLUE, and confirms that the existing user remains subject to the industrial limits for factors like air quality and noise (not residential limits).

Everyone gains:  the existing user has protected its ongoing business, the developers get projects approved, and the local government has expanded its housing stock.

CLUEs have not been commonly used, but should be in the toolkit of all litigators and real estate attorneys who encounter land use conflicts. The technical aspects of creating the easement are straightforward and the primary challenge in using a CLUE is in forging the alignment of interests among the existing user, the developer, and the local government. This approach can provide a path to approving more housing, forewarning prospective buyers and tenants, protecting existing uses, and avoiding political turmoil and litigation.

The use of CLUEs is described in more detail in the most recent edition of the CEB hornbook on easements (CA Easements & Boundaries: Law and Litigation, 2019, Section 2.37B), citing my article for the State Bar’s California Real Property Journal (Etnire, Resolving Conflicts Through Collaborative Land Use Easements, 37 Cal Real Prop Journal, No. 2, 2019, Page 37). See also the Urban Land Institute Quarterly (Etnire, Urban Land, Reducing Land Use Conflicts through Collaborative Easements, Winter 2019, Vol. 78, No.1, Page 82).

About the Author:

Geoff Etnire is Counsel at Venable, working out of the SF, LA, and DC offices.