HomeMy WebLinkAbout05.a. (Handout) Letter re: Bodhaine Easement dated 08-11-21 Item 5.a. (Handout)
withers Bergman LLP
505 Sansome Street,2nd Floor.San Francisco.California 94111
t:+1 415 872 3200
f. +1 415 549 2480
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August 11, 2021
General Manager, Staff and Counsel
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553-4392
Sent via e-mail to kyoung(c�centralsan.org via fax to (925) 676-7219 and via Federal Express
Re: Requested Immediate Executive Session Action
Interpretation of Easement at 95 1st Ave. N., Pacheco, CA
Ladies and Gentlemen:
We represent 95 First Ave N LLC, owner of property at 95 1St Ave. N., Pacheco, as well as its Manager, Randall
Bodhaine. The District holds an easement over our client's property, recorded in County records at April 26, 1977 at
Book 8303, page 36 and following. Your staff is familiar with the basics of the matter at issue here. The District
holds an 'exclusive easement" over my client's property for the express purposes of"constructing, maintaining and
operating sewer pipes therein and thereon...together with the reasonable right of access to such easement...." The
District's rights go no further. The District's "exclusivity" within the easement area is not further defined. It is the
District's pre-printed form, used without alteration. The District does not have air rights, and those rights cannot be
implied from this express and limited grant. My client proposes to erect a billboard whose podium or foundation is
outside the easement area. The billboard will overhang the easement area with 34 (thirty-four) feet of
clearance. There is no conceivable way that this can interfere with the bare installation and maintenance rights
granted to the District. After reviewing the law on "exclusivity", we conclude, and so we believe will your counsel, that
the only reasonable reading of the term in this context is that the District possesses the exclusive right of"constructing,
maintaining and operating sewer pipes therein and thereon...together with the reasonable right of access to such
easement...." and that so long as another proposed use does not interfere with those rights, such uses are
permissible. The fact that the District qualifies its own entry rights into the easement area as "the reasonable right of
access" conclusively demonstrates the point. We have no doubt that the property owner has the right to install a
billboard with 34 feet of clearance.
On a related matter, your staff referred my client to your published pamphlet titled "Encroachments." This again
suggests staffs misunderstanding of the basics. My client does not propose to "encroach" on your easement. The
District does not own or control the airspace my client will use.
My client is required to obtain your approval for this project and you have unreasonably refused to give it or even
entertain an application. Our client views your refusal to receive and process the application as bad faith on the
District's part. Moreover, a rejection of the application would be considered to be arbitrary, capricious and
unreasonabie by applicable legal standards. The District's prevention of our client's project would in our opinion
constitute a taking and an expensive one at that. Perhaps your staff simply doesn't understand the extent of the legal
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Central Sanitary District
August 11, 2021
rights that the District does and does not have under the easement, and in order to bring this to a point, we ask you
to urgently consider this matter in Executive session prior to your August 16, 2021 meeting and contact us immediately
afterward with your determination. We sincerely hope that this amounts to a simple misunderstanding on the part of
staff. In any event, we look forward to your prompt response.
Very truly yours,
William Stephen Wilson
WSWlmul
cc: Mr. Randall Bodhaine
SF001 4710001-U5-975714611 2