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Print Page You Snooze You Lose
by Ron Davis

Failure to act promptly has prevented a California shopping center owner from retaining an important access to his property.

The shopping center is Airporter Square in Ontario, and the access is a service road that crosses an adjacent tract of land. That tract had remained vacant until recently, but is now undergoing development into a condominium project.

The shopping centerís owner claims ownership of the service road and opposes the condominium developersí efforts to close it. Meanwhile, the condo developers obtained approval from the city of Ontario of a plan for the tract permitting subdivision. That plan does not mention an easement allowing access to the service road.

The shopping centerís owner immediately objected to the cityís approval of the plan, contending that the project would destroy his easement. The city then conducted a public hearing to consider the objections of the centerís owner, but in the end rejected his arguments.

Ninety days passed before the centerís developer reacted. He then sued the city of Ontario and the owner of the adjacent tract, demanding that he retain access to the service road. In response, the city pointed out that the centerís owner had waited too long to oppose the decision to close the road. By law, the city of Ontario requires that any challenger to a subdivision of land must file a formal statement of opposition within 90 days. Moreover, that statement must go to both the city and the landowner. The centerís owner argued, however, that his opposition was not an objection to the subdivision of the adjacent property. Rather, he noted, his opposition was merely a means to enforce his easement.

A California court dismissed the lawsuit on grounds that the shopping center owner was ďunable to join the indispensable real parties in interestĒ by his failure to act promptly to dispute the city of Ontarioís ruling. The judge also decided that the centerís owner had not alleged a physical or regulating taking and failed ďto exhaust all administrative remedies.Ē

The centerís owner appealed.

A California appellate court also ruled against the centerís owner, explaining, ďAllowing the centerís owner to forego service on real parties in interest, within the 90-day limit, would contravene the policy judgment that litigation involving subdivision must be resolved as quickly as possibleÖ. The policy is necessary because delay in the resolution of these disputes is ultimately reflected in increased development and housing costs.Ē (Aden v. City of Ontario, 2007 WL 4100137 [Cal.App. 4 Dist.])

Decision: November 2007
Published: December 2007

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