Easing the Easement
by Jake Isaac, July 22, 2009
Just behind the Zina Hyde Cunningham Tasting Room here in downtown Boonville, a brief road ran straight as a string east toward Anderson Creek. The road ran. Past tense. Farrer Lane, as it's called now, jogs a several feet northwest before it resumes its due east path to Anderson Creek where it ends in a tidy little cul de sac of nicely maintained homes.
One of those homes is occupied by Mr. and Mrs. Richard Ferguson. The Fergusons and their three neighbors are suing the Mendocino County Planning Department and a Sonoma County developer of the controversial type named Steve Ledson for allowing Ledson, the owner of the Zina Hyde Cunningham tasting room at the highway end of Farrer Lane where the dusty little road begins.
The Fergusons et al are suing because Ledson moved the road — their deeded easement — to build a house directly beneath the power lines serving the neighborhood, thus neatly breaking a bag full of laws.
Ledson also owns a large tract of land southeast of Boonville in what is called Bald Hills. He claims ancient Anderson Valley kinships, hence his Zina Hyde Cunningham Tasting Room complex on 128 where Farrer Lane begins.
Mr. Ledson, a youngish man still on the sunny side of 50, is frequently held up in Sonoma County as Bad Developer, Exhibit A, for a skein of kitschy McMansions he erected near the precious village of Sonoma. Ledson has also been investigated by drug task forces. He seems to be the kind of well-heeled man who does what he wants then litigates his way clear afterwards.
Ledson claims he told his four fellow easement owners that he was going to move the road back in 2006, but there's no written confirmation of his intentions.
Mendocino County surveyor Art Colvin made a site visit after the neighbors complained — two years later — that Ledson’s relocation of Farrer lane constituted a violation of their easement. The surveyor and the County gave Ledson the go ahead to keep the new road position because the neighbors, Colvin said, had “agreed by acquiescence” by driving on the altered path during and after its construction. Of course the neighbors had no choice but to use the altered easement to get to and from their own homes.
Ledson had moved the lane over so he could build a little house to one side of it on the other end of his parcel for his tasting room manager.
The land over which Farrer Lane runs presents unique problems of its own. It has yet to be correctly identified. Because the parcel is unusually shaped — it’s a “remainder” parcel from left over the original subdivision — it’s not clear which side of the cottage Ledson subsequently built beside the crook in the road is the front, side or back. This confusion as to which side is which has made it difficult to determine the setbacks from the property lines; setbacks are measured from the front, back or side.
In 2006 construction started the road. The house went up two years later. It was when Ledson got his building permit that Ledson's neighbors formally asked the County Planning Department about Ledson having moved the road easement without so much as permit one.
The County responded initially in 2006 (or 2007) by telling the neighbors that everything was ok, and that if they didn’t like the new configuration of their road they should get a lawyer. But none of this initial haughty advice from the County is in writing, and the neighbors have neither the name of County rep they spoke to nor the specific date they spoke to him, nor to which neighbor he spoke.
In February of 2007 Ledson asked the neighbors to sign “quit claim” agreements approving the new easement. The neighbors declined. An unidentified “dominant tenant holder” subsequently informed the County that there was an easement for where the road had been which had been moved without a permit. The easement holders — the neighbors — were not officially notified of the easement change so that they could comment on it. Of course, by this time Ledson’s new house was nearly complete. It had become a larger fact than the moved road.
(For historical perspective, a wealthy Fort Bragg developer named Affinito built himself a whole seaside motel at the mouth of the Noyo with an extra story on it. Affinito was sued by several agencies who eventually gave up because they couldn't afford to stay in court. There are many other flagrant examples in Mendocino County of well-placed individuals simply doing what they want then, essentially, buying their way out of trouble after the fact.)
The neighbors contend that the County failed to note the original easement on Ledson’s building permit application, and that Ledson intentionally omitted mentioning the existence of the original easement in his building permit application. They also assert that the newly constructed home is 4.5 feet into the original easement and that the newly constructed home violates septic leachfield and setback requirements.
Neighbors Brian Wood and Xenia King live behind the tasting room, behind Ledson’s new cottage, and on the other end of the fluid easement. In September of 2007 they sent Ledson a letter telling him to put the road back where it was because he had no legal approval to move it. They also insisted that Ledson had not requested their written approval and that the construction had increased traffic and obstructed access to their home.
Ledson replied that the change was “insignificant.”
A moved right of way and a new house are insignificant?
Then, in December of 2008, after the old road was gone and the new road was finished, and Ledson's new home for his tasting room manager was essentially complete, the neighbors complained to the county and the county initially issued a stop order to Ledson, later dodging their role in the problem by stating that their (the County’s) approval was “ministerial” (i.e., routine) and that they “have no dog in this fight.”
The day after the stop order was issued the County sent surveyor Colvin out to check. Colvin found no serious problem with the moved road and wrote that the neighbors had “agreed by acquiescence,” so the county lifted the stop order, meaning that Ledson could have his moved road and the house that went with it. His neighbors hired locally famous property rights specialist Jared Carter’s legal firm in Ukiah to file suit against Ledson.
So far the suit hasn’t produced much. Carter first bumped Judge Behnke (who used to work for Carter) and the case was assigned to Judge LaCasse who initially ruled that he would not order the County to revoke the building permit for the existing house and road. LaCasse’s limited ruling (do leave things as they are) was appealed (no result so far) and Carter’s firm also filed a peremptory challenge to get LaCasse off the case.
In the spring The Neighbors v. Ledson was turned over to Judge Henderson.
Before he was bounced, Judge LaCasse suggested that the lawsuit, which threatens now to become endless, might bankrupt the involved parties; neither side seems open to negotiation or compromise.
The neighbors’ attorney, Daniela Pavone (who works for Carter), said in her filing that Steve Ledson is “nothing more than a liar and a bully who is used to getting his way.” Which seems to be a consensus opinion wherever Ledson does business. Ms. Pavone also made note of Ledson's lack of effort to notify the neighbors of the movement of the easement. Unfortunately for the neighbors, the record does show that Brian Wood sent a letter to Ledson in December of 2006 about the new road, asking that Ledson try to minimize obstructions and dust during the construction of the displaced road but not openly disputing Ledson's movement of the road. But that was before Ledson filed his building permit application.
Judge LaCasse's subsequent opinion noted that the road had been moved two and a half years before the case was filed, and before the building permit was applied for or issued without apparent objection from the neighbors. LaCasse called the case “difficult” and all the parties were at least partly at fault, suggesting that the parties engage in negotiations outside of the courtroom, otherwise “they will be paying extraordinary legal expenses.”
A case management conference was scheduled in Judge Henderson’s courtroom last Thursday, July 16 2009. Little came of it. Most of the hearing consisted of deputy County Counsel Terry Gross insisting to Judge Henderson that the County had no legal liability in the case — the County was immune from liability for ordinary discretionary actions such as building permit approvals.
Ms. Gross also said that there was no requirement for due process such as notices and hearings for neighbors by the County, which will come as fresh news to the thousands of County residents who have gone through exactly that process. She claimed that there is no reference in the surveyor's memo to the abandonment of an easement, only its relocation. The surveyor was not determining the easement, said Gross.
Ms. Pavone in turn insisted that the constitutional rights of her clients (the neighbors) had been fundamentally violated by the County’s failure to provide them with notice and a hearing before violating her clients’ property rights, jiggering their easement unilaterally. Ms. Pavone pointed out that the case so far has only involved the judge's refusal to order the county to rescind the permit. She said that no ruling has been made on the merits of the case. “My clients have a constitutional right to notice and hearing,” Pavone declared. “Mr. Ledson built his home on someone else's property yet there was no notice. The county permitted Ledson to build on the easement.”
Ms. Pavone compared the County Counsel's “arbitrary” argument about her clients having no right to due process with the County refusing to correct a decision based on the color of somebody's skin.
Judge Henderson apologized to the parties several times for being unprepared, saying he had been busy with other cases, and was not familiar with this one. The attorneys also seemed unprepared because when Henderson asked a few basic questions they didn’t know which county ordinances applied or even how far the easement had actually been moved or what the setback requirements were.
For now, Ledson’s tasting room manager’s little white house sits unoccupied, right there under PG&E’s power lines which run along where the road used to be. So it’s even possible that PG&E will also enter the fray, arguing that someone now has to pay them to move their power lines.
This dispute looks like it will never end. Unless the judge comes up with an agreeable way of assigning fault and costs, resolution will continue to be elusive. Ledson's neighbors are unlikely to be consoled by literature, but Charles Dickens' Bleak House offers a comprehensive guide to their experience, and Dickens wrote it 150 years ago.
Jake Isaac is an AVA intern. He is a student at SF State University.