Photo of Basil "Bill" Shiber

Basil "Bill" Shiber is a trial attorney based in the firm’s Walnut Creek office.  He represents clients all over the state in disputes over the acquisition, disposition, construction, finance, development and leasing of real estate.  Bill has handled trials and negotiations involving land entitlement and use, eminent domain/inverse condemnation, public law, commercial leasing, environmental claims, the California Environmental Quality Act (CEQA), community redevelopment, title insurance and other business disputes. Bill’s clients include developers, retailers, financial institutions, title insurers, academic institutions, utilities, and public agencies.  Bill’s practice has given him many opportunities to lecture, contribute to scholarly publications and take leadership roles in professional organizations.  He has a Martindale-Hubbell peer rating of AV, the highest possible. Bill is Chair of the firm’s Litigation Department and Eminent Domain/Inverse Condemnation Practice Group.

In The Park at Cross Creek LLC v. City of Malibu (2nd Dist. 2017), ___Cal.App.5th___ (Case No. B271620), the Court addressed the validity of a voter enacted initiative, Measure R, designed to limit large developments and chain stores.

The first component of Measure R required the Malibu City Council to prepare a specific plan for every proposed commercial or mixed use development in excess of 20,000 square feet, addressing a number of development specifics including floor area, traffic, view corridors, public facilities and the like.  Following the City Council’s approval, the plan must then be placed on the ballot for voter approval and until such approval, the City may take “no final action on any discretionary approval relating to” the development.  Moreover, once approved, all subsequent permits and approvals must be consistent with the approved development.

Continue Reading Voters May Not Usurp City’s Administrative Land Use Authority Through Initiative Process

Who is responsible for the housing crisis in San Francisco, and what can government do to solve it?  As property values have climbed in San Francisco and surrounding areas, that problem has increasingly vexed elected officials and the courts.  The First District of the Court of Appeal is the most recent to weigh in, with a decision invalidating a local pro-tenant ordinance.  But first, some background.

The Ellis Act is a state statute that prohibits a city or county from “compelling the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease . . . .”  (Gov. Code, § 7060, subd. (d)(a).)  In short, the Ellis Act allows a landlord to withdraw a rental unit from the market.  In 2014, San Francisco Supervisor David Campos sponsored an ordinance requiring landlords to pay a relocation benefit to tenants being displaced due to the landlord’s “repossession” of the rental unit under the Ellis Act.  The payment required was 24 times the difference between the unit’s current rental rate and the “fair market value” of the unit, as calculated by a prescribed schedule.  In theory, the displaced tenant was to be compensated for two years’ worth of the differential between what the tenant was paying and what the tenant would pay as fair market rent.  Tenants were entitled to the payment regardless of needs or assets, and there was no requirement that the payment actually be spent on expenses of relocation.

Continue Reading Landlords Win San Francisco Legal Battle

As we have previously reported, the California Supreme Court in Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, ruled that the California statutes allowing precondemnation entry by the government to test and inspect property (Code Civ. Proc., §§1245.010 et seq.) are constitutionally valid, subject to reformation to permit a landowner to obtain a jury determination of damage caused by the entry.  Having dealt with the issue of constitutionality of the precondemnation entry statutes, the Supreme Court remanded the matter to the Court of Appeal to resolve several remaining procedural issues.

The Court of Appeal’s opinion on remand, filed December 16, 2016, addresses those procedural issues and provides guidance as to how the Supreme Court’s holding will work in practice.  The opinion on remand clarifies (i) that a landowner may seek discovery in connection with a petition for precondemnation entry, and the concurring opinion by Justice Blease (who dissented from the original Court of Appeal opinion) clarifies (ii) that in the event the government proceeds with acquisition of the property, the claim for precondemnation damage may be asserted by means of a cross-complaint in the main condemnation action.

Continue Reading <i>Property Reserve</i> and Precondemnation Entries – The Epilogue

It is not often that the California Supreme Court steps in to reform legislation that would otherwise be unconstitutional, but that’s what it did in Property Reserve, Inc. v. Superior Court (S.Ct. No. S217738), issued July 21, 2016.  The legislation was Code of Civil Procedure sections 1245.010-1245.060, which authorizes precondemnation entry and testing activities by the government on property being considered for condemnation.  The statute contemplates a petition being filed by the government describing the entry and testing desired, which the court can authorize after hearing.  The court may also require a deposit into court to compensate the property owner for damage to his or her property resulting from the government’s activities.

Continue Reading California Supreme Court Salvages Precondemnation Entry Statute by Reforming to Include Right to Jury

In its second major eminent domain opinion in as many months, the California Supreme Court in City of Perris v. Richard C. Stamper (S.Ct. No. S213468), issued on August 15, 2016, deals with two issues:  First, is it the role of a judge or a jury to make the preliminary determination of whether a public dedication requirement affecting valuation in an eminent domain case is constitutional?  Second, to what extent does such a dedication requirement constitute a “project effect” which must be ignored in determining the value of condemned property.  The 50 page opinion, complete with a concurrence and dissent by Justice Cuellar, is thorough and comprehensive.

A little background to set the context:  The City of Perris sought to condemn a 1.6 acre strip through the middle of defendant’s property in order to build a road.  The property was undeveloped agricultural land, but the property owner argued that he should be compensated based on the highest and best use of the property, namely light industrial land.  The City responded that any development of the property to light industrial use would trigger a requirement by the City that the same strip of land be dedicated for road construction.  Thus, the rule articulated in City of Porterville v. Young (1987) 195 Cal.App.3d 1260, applied: when a city takes a portion of undeveloped property that it would have lawfully required the owner to dedicate to the city as a condition of developing the remainder of the property, the owner is entitled to compensation based on the undeveloped state of the property (here, agricultural), rather than its highest and best use.

Continue Reading In A Condemnation Case, The Judge – Not Jury – Decides If A Dedication Requirement Meets Constitutional Muster