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Press Contact: Mary Kay Clunies-Ross, City Public Information Officer, (510) 981-7008

Landowners of substandard lots in dangerous areas required to merge properties

Berkeley, California (Friday, June 01, 2007) - In a precedent-setting decision that ensures the rights of cities to enforce important safety laws, the California Court of Appeals ruled in favor of the City of Berkeley in a lawsuit involving a Panoramic Hill property.

The case involved an attempt by a property owner, Maarten Kalway, to prevent the City from merging a substandard lot he owned into an adjacent lot where he lives, by giving it to his wife at the eleventh hour.

“This is an important decision because it makes quite clear that the courts will not allow strategies to avoid lot mergers that are intended to protect public safety,” said Assistant City Attorney Zachary Cowan.

Because the Panoramic Hill area is susceptible to fire and earthquake destruction, has poor water pressure, inadequate sewage, and difficult access for emergency vehicles, the law requires that lots be at least 9,000 square feet. The larger lots help control the amount of potential development, thereby reducing the number of people at risk in the event of a fire or earthquake.

If a substandard (small) lot is adjacent to a larger lot that is owned by the same person, the law allows the City to merge the two lots. In 2005, the City merged 14 substandard lots.

Maarten Kalway owned two parcels of land, known in the suits as the “Mosswood Road Parcel” and the “Arden Road Parcel.” The City notified him that he was required to merge the lots, but he claimed that immediately before notification, he gave one of the parcels to his wife.

The Planning Commission decided that the transfer of the property to Mrs. Kalway was “solely to evade or circumvent” the law, and merged the properties anyway. The Kalways petitioned the Alameda County Superior Court to overturn this decision, but the court refused. The Kalways appealed and the Appellate Court affirmed the Superior Court.

This decision was approved for publication, which means that the court’s ruling and the City’s arguments will become precedent and will help other courts and municipalities in dealing with landowners who try to avoid mergers by transferring it to other people. The decision can be found online at http://www.courtinfo.ca.gov/opinions/documents/A112569.DOC.


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