Preview
Aaron W. Moore, State Bar No.: 248566 Superior Court
of Califoonia
Collin M. Bogener, State Bar No.: 272560 County of Butte
Michael L. Ricks, State Bar No.: 314687
Jason R. Lehfeldt, State Bar No.: 215792
11/1/2021
MOORE & BOGENER, INC.
1600 West Street
Redding, California 96001
(530) 605-0355 / 605-3693 (fax)
caine one Deputy
Glectronicaily FILED
Jeffery J. Swanson, State Bar No.: 155118
SWANSON LAW OFFICE
2515 Park Marina Drive, Ste. 102
Redding, CA 96001
(530) 225-8773 / 232-2882 (fax)
10 Attorneys for Plaintiffs Stephen Meline, IV,
Robert J. Meline, Nelda F. Jessee, Melanie G. Edgington
1
—__
12 IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA
13
IN AND FOR THE COUNTY OF BUTTE
14
15
STEPHEN MELINE IV, CASE NO.: 127180
16
ROBERT J. MELINE,
17 NELDA F. JESSEE, PLAINTIFFS’ TRIAL BRIEF FOR
MELANIE G. EDGINGTON PARTITION IN KIND
18 Plaintiffs,
Trial Date: November 8, 2021
19
vs. Honorable Tamara L. Mosbarger
20 Dept. 1
JACK MELINE, et al.
21 Defendants.
22
23
24 I
25 THE PARTIES
26 This case is a partition action between Stephen Meline, IV, Robert Meline, Nelda F.
Jessee and Melanie Edgington (collectively “Plaintiffs”) and Ronald Rabo, Michael Rabo,
27
Frederick Rabo, Mary Ann Rabo Schweiger, Susan Miller, Randall Meline and Joan Stoner
2
Page 1
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
as Co-Trustees of the Edward Richard Meline and Charelene M. Meline Irrevocable Trust
dated December 30, 1992, and Linda G. Carlson as Trustee of the Jack Meline Irrevocable
Living Trust Dated December 30, 1992 (collectively “Defendants”). The real property sought
to be portioned is located in Butte County and is generally referred to by the parties as “The
Range.” The Range consists of approximately 4,400 acres of range land east of Chico, made
up of 13 legal parcels. (See PACE MAP entitled “13 Original Parcels” attached hereto as
EXHIBIT “A.”) The parties are related to each other and The Range has been family
property for over 85 years. The property has been used almost exclusively for cattle grazing.
Brothers Stephen Meline IV and Robert Meline own and live on a separate parcel that
is completely surrounded by The Range, as well as an adjacent parcel that is accessed
10 through the Stilson Canyon portion of The Range. They own, collectively with their sisters
i Nelda Jesse and Melanie Edgington, a 25 percent undivided interest in The Range. For
purposes of this action, the Meline brothers and their sisters have agreed to aggregate their
12
interests. Other than the Meline brothers, no other party lives on or adjacent to The Range.
13
Defendants collectively own the remaining 75 percent undivided interest in the Range
14
property.
15
Il.
16 CASE HISTORY AND PRIOR RULINGS
17 The original action between the parties was filed in 2003. The present case was filed
18 as a cross-complaint and then was later converted to be the primary action.
19 Plaintiffs come to this trial seeking a partition, partially in kind and partially by sale.
20 Plaintiffs seek by partition in kind of the ownership of specific lands bordering their personal
residence as well as the 475 acre parcel they own adjoining the northern boundary of The
21
Range (constituting their 25% share), and a partition in kind or by sale of the remaining lands
22
(at Defendants’ choice) and a distribution of those proceeds to Defendants. To partition the
23
value of the Range equitably, the property lines of certain legal parcels must be adjusted
24
through the lot line adjustment process. Any remaining difference in value can be addressed
25 by the Court through an order for owelty — essentially payment to balance the values received
26 by each party.
27
28
Page 2
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
Throughout the pendency of this action, Defendants have generally opposed any
partition proposed by Plaintiffs, but have acknowledged that a complete partition in kind is
not feasible. They have sought instead to force a sale of the entire Range or in the alternative
an order denying partition. Defendants dispute this Court’s authority and ability to equitably
partition in the manner requested by Plaintiffs. Defendants recently provided a map to
Plaintiffs with a proposed division of The Range, including Stilson Canyon, but Plaintiffs
have not had time to evaluate the viability of the proposal. However, it is clear from a
cursory review of the map that it does not comply with the Butte County General Plan and
applicable zoning ordinances.
By stipulation of the parties and the resulting order of the Court, the Honorable Noel
10 Watkins was appointed as referee. Judge Watkins heard and decided several issues in the
11 case over the years and presided over the trial that began February 21, 2017. Judge Watkins’
prior rulings represent the rulings of this Court and set the table for the issues to be decided
12
going forward. Those rulings are as follows:
13
1 June 13, 2016 Interlocutory Order on Partitioi
14
After briefing and a hearing held June 13, 2016, Judge Watkins as Referee issued an
15
Interlocutory Order on Partition (see Request for Judicial Notice filed herewith, Exhibit A.)
16 The Interlocutory Order established that:
17 1. The parties and their respective undivided interests in the real property are as
18 set forth on Exhibit A of the Order.
19 2. The real property that is subject to partition in this action is comprised of
20 Separate Parcels as set forth on Exhibit B of the Order. Judge Watkins also
adopted the property descriptions both as to Assessor’s Parcel Numbers and Lot
21
Book Guarantee as stipulated by counsel.
22
3. The properties are to be partitioned either in kind or by sale to be determined
23
after evidentiary hearing and as included in a final decree.
24
25
26
27
28
Page 3
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
2 June 13, 2016 Ruling on Motions (3)
In his June 13, 2016 Ruling on Motions (3), Judge Watkins addressed three motions
brought by the parties. (See Request For Judicial Notice filed herewith, Exhibit B.) The
following summarizes each motion and Judge Watkins’ ruling:
a. Rabo Motion for Judgment on the Pleadings.
The Rabo Defendants argued there are 21 parcels to be partitioned in this proceeding,
coinciding with the number of Assessor Parcel Numbers, The motion was denied based on
the determination that underlying deeds described 13 legal parcels, and therefore it was the
legal parcels, not APNs, that will be divided. , “APN’s are not legal descriptions or indicative
of title, but are arbitrarily assigned by the County Assessor’s Office solely for the purpose of
10 designating the property for taxation.”
il b. Motion for Production of Confidential Brief.
Counsel for Rabo requested copy of a “confidential brief” lodged with Judge Watkins
12
by Plaintiffs’ prior attorney, Jody Burgess. The Court denied the request, stating “[i]t may
13
have been wiser if Mr. Burgess had not in 2016 referred to this 2015 brief but it is
14
inconceivable that anything in that brief could have affected a determination of law requested
15
six months later.”
16 c. Motion to Prohibit Aggregation
17 Defendants filed a motion prohibiting aggregation of interests, claiming instead that
18 each party must take their percentage in each of the 13 properties being partitioned. The
19 result would have been that each owner would have 13 separate interests scattered across the
20 entire 4500 acre ranch, many of the parcels being landlocked and without access. As a
practical matter, this would have operated to require the sale of the entire Range to preserve
21
the value of the various parcels, i.e., partition by sale. The Rabo defendants also argued that
22
Plaintiffs should not be permitted to “aggregate” their ownership interest for partition in kind
23
and that Defendants could not be required to accept the 75% remainder to be portioned in
24
kind or by sale. The underlying purpose of this motion was to require a partition by sale of
25 the entire ranch. Judge Watkins ruled, based on Richmond v. Dofflemyer (1980) 105 Cal.
26 App. 3d 745, “that the motions seeking to prohibit aggregation is not well founded” and
27 denied the motion.
28
Page 4
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
I.
ORDER OF PROOF
Whether the Court may grant Plaintiffs’ requested partition partially in kind and
partially by sale is a question of law to be decided by the Court. As detailed below, this
predicate issue has been approved as the preferred method of partition by statute and
controlling case authority. Plaintiffs therefore respectfully request that the order of proof
proceed first on that issue. Plaintiffs will include an offer of proof on the proposed division
and its feasibility under the law. Defendants should then be allowed to introduce argument as
to why a sale of the entire property should be required.
If the Court agrees that Plaintiffs’ proposed division is appropriate, the remaining
10 issues are issues of fact as to valuation. Plaintiffs will then present evidence regarding the
ii relative values of the division and the equitable result for each of the parties, and Defendants
can introduce their rebuttal Any difference in value can be addressed by the Court through a
12
determination of owelty.
13
iii.
14
KEY ISSUES IMPACTING THE MANNER OF PARTITION
15
16 Plaintiff's proposed division is shown on EXHIBIT “B” and is to be accomplished
through the lot line adjustment process. This process is an exception to the Subdivision Map Act
17
and permitted by the Butte County Code. Unlike divisions under the Subdivision Map Act, the
18
lot line process is not discretionary; under California law Butte County must limit its review to
19
a determination of whether the parcels resulting from the adjustment conform to the County’s
20 general plan and zoning and building ordinances. (Gov’t Code §66412(d).) If the resulting
21 parcels comply with those requirements, then the County must approve the adjustment and new
22 parcel lines,
23 Importantly, the division proposed is legally encouraged because it preserves the form of
24 inheritance and avoids a forced sale. (See Butte Creek Island Ranch v. Crim (1982) 136 Cal.
25 App. 3d. 360, 366 [forced sales are strongly disfavored].) What is more, the facts of this case
and the relief Plaintiffs seek mirror the result reached in the leading case of Richmond v.
26
Dofflemyer (1980) 105 Cal. App. 3d 745, a case widely known for its avoidance of a forced sale
27
28
Page 5
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND.
by ordering a division in part and a sale of the remainder.' Lastly, the division shown on
EXHIBIT “B” gives the defense a 3,500 acre plus portion of The Range that carries the best
attributes of the overall cattle ranch, including its preferred range area, its water sources for late
winter grazing, and its cover. In fact, very little of the land in Plaintiffs’ proposed parcel has been
utilized as part of the cattle operation, which supports severing this portion from the remainder,
and in doing so, leaving the best portions of The Range to Defendants, which portions can be
kept or sold according to the preferences of the new owners, who will hold as tenants in common.
(Id., see also Code of Civil Procedure, § 872.830 [trial court has authority to order partial division
and sale of the remainder]).
The Defendants, on the other hand, have requested that the entire range be sold. However,
10 if the Defendants are pursuing the sale method of partition with no intent of yielding ownership
11 in the land, i.e. that they intend to buy the entire ranch at sale, such an intent should weigh against
an order to sell the entire range. In Butte Creek Island Ranch, supra, at 254, the Court concluded
12
that a forced sale under these circumstances constitutes a private condemnation: “Plaintiff had
13
and has no intention of yielding up physical possession of the land. It sought a forced sale of the
14
land in order to acquire defendant’s interest which he did not desire to sell. This is nothing short
15
of the private condemnation of private land for private purposes, a result which is abhorrent to
16 the rights of defendant as freeholder”.
17 Defendants’ argument for forcing a sale of the entire range is that Stilson Canyon? is
18 the most valuable part of The Range, claiming it affords residential development opportunities
19 similar to the land lying immediately west of the range. They are wrong. Stilson Canyon cannot
20 be developed for residential use through subdivision map or parcel map. State law, the existing
Williamson Act Contract, the Butte County General Plan, and the County’s Zoning Code will
21
not allow it. Combining these barriers with the County’s General Plan policies focused on
22
preserving agriculture lands and maintaining Williamson Act contracts, as well as the County’s
23
and the State’s heightened awareness of fire danger in remote areas with only a single way
24
25
26 ' Richmond v. Dofflemyer (1980) 105 Cal. App. 3d 745 has been cited by numerous treatises on
real property such as Miller & Star (Ch. 11, § 14) and CEB. There are no published cases
27
contradicting its holding, and it is consistent with Code of Civil Procedure section 872.030.
28 ? Stilson Canyon is that part of The Range that surrounds Plaintiffs’ residence and is not suitable for grazing.
Page 6
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
out,? Defendants cannot reasonably argue that Stilson Canyon’s development will happen in
the foreseeable future. Deposition testimony of Butte County Principal Planner, Dan Breedon,
who will appear at trial, is insightful:
Question: Okay. I understood when you said you don’t see a residential
development in the Stilson Canyon area we’ve been talking about, you’ve nicely
said that. The path to go down and get there includes layers of problems including
arezone, Williamson Act, buffers, FEMA, access, it’s just a multitude of layers that
add on with one big heavy, heavy brick put on top, the Williamson Act. Aside from
a General Plan Amendment, those devises internally make it extremely difficult to
do anything with Stilson Canyon but Ag use; correct?
10 Answer: That’s correct. (Breedon Deposition, p. 47: 3-13.)
il
Although Defendants seemingly accepted that the law precludes residential
12
development, they still argue that Stilson Canyon’s various parcels are extremely valuable —
13 the “pearl in the oyster”-- and conclude that this fact somehow limits the Court’s authority to
14 divide the property as Plaintiffs seek. The facts do not support the argument.
15 Defendants’ appraiser Daniel Ketcham is the key expert supporting Defendants’
16 argument. However, Mr. Ketcham made a critical mistake in rendering his opinions. First, he
17 mistakenly valued county assessor parcels and not legal parcels, which offends California law
and this Court’s past ruling stating, “APN’s are not legal descriptions or indicative of title, but
18
are arbitrarily assigned by the County Assessor's Office solely for the purpose of designating
19
the property for taxation.” (See Ruling on Motions (3) dated June 13, 2016). As made clear in
20
the Interlocutory Judgment provided by the Court, there are 13 legal parcels, which Mr.
21
Ketcham did not appraise. His mistake caused him to accord a $935,000.00 value to
22 approximately 220 acres of nongrazing land in Stilson Canyon ($4250 per acre), which over-
23 inflates the value of this land if it cannot be developed for residential properties.
24 Further, his erroneous appraisal is unsupported by comparable sales data. Significantly
25 Mr. Ketcham appraised the remaining 4,280 acres at $2,430,000.00 ($567.75 per acre), which
26 is far below any previous appraisal of this range and is contrary to the findings of Plaintiffs
27
28 3 As shown on the maps, there is a single road leading into or out of the canyon.
Page7
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND.
range appraiser, John Ryan. As detailed below, he admittedly applied an incorrect “animal unit
per acre” that reduced the appraised value.
Lastly, Defendants’ appraiser overlooked the impact of the Williamson Act and the
cancellation fee and/or penalties associated with removing any one of the parcels in Stilson
Canyon from the rest of The Range to support selling it to a third party. Simply stated, he did
not account for the substantial penalties that are imposed if the properties in Stilson Canyon
are sold to the public for value (See California Government Code, Section 51283 (b)). This
error results in unrealistic, elevated values.
Conversely, Plaintiffs’ expert accounted for the Williamson Act penalties, and
recognized Stilson Canyon’s 220-acre parcel does produce a higher value per acre compared
10 to the overall range, but so does the land along Honey Run, which Plaintiffs proposal assigns
11 to Defendants. The relative values of the Stilson Canyon and Honey Run portions of The Range
are not so great as to compel treating the land as anything other than rangeland, which is the
12
same conclusion reached by all past appraisers, including Scott Hamm, who was retained by
13
Judge Watkins. The same conclusion applies today, which is why Plaintiffs are within their
14
right to request the property be divided as set forth in EXHIBIT “B, which can be
15
accomplished through a simple a lot line adjustment and which ultimately provides fair value
16 to all parties, preserves the Plaintiffs’ inheritance, follows the strong precedent of Richmond y.
17 Dofflemyer, and leaves the best and most marketable attributes of The Range to the Defendants,
18 which they can sell, keep or divide at their choosing.
19 Til.
20 APPLICABLE LEGAL PRINCIPLES PERTAINING TO
THE PARTITION OF THE RANGE
21
22
1 The Court is Afforded Great Discretion and Latitude in Deciding a
23 Partition Action.
A partition suit is in equity (see Richmond v. Dofflemyer, supra, 105 Cal. App. 3d 745,
24
at 766) and a court of equity has broad powers and comparatively unlimited discretion to do
25
equity without being bound to strict rules of procedure. (/d.) Strict rules of procedure have no
26
place in a partition action. In Jameson v. Hayward (1985) 106 Cal. 682, at 687-688, the court
27
stated a partition action is an “equitable practice prescribed by law. Under it property may be
28
Page 8
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
divided in whole or in part. Compensation may be required of one for the greater value which
he receives over that awarded to another.” (Italics added.)
2 Partition In Kind is Favored Whereas a Forced Sale is Disfavored.
The disfavor of a forced sale is stated in Butte Creek Island Ranch y. Crim (1982) 136
Cal. App. 3d 360, originating from a decision by Judge Lloyd Mulkey, Jr. The Court of Appeal
reversed Judge Mulkey’s ruling that ordered real property be partitioned by sale over the
objection of a party seeking its division in kind. The case establishes the preference given to
partition in kind versus a forced sale.
Although Butte Creek Island Ranch y. Crim dealt with a partition of two discrete
parcels of land, and is therefore factually distinguishable, the requirement to strictly construe
10 arequest for sale over the objection of a party seeking division in kind, is nonetheless appliable:
li “The right of selling the land and dividing the proceeds, given by statute, is an innovation upon
the common law, and since it takes away from the owner the right to keep his freehold in kind,
12
it is to be strictly construed ....” (Id, at 364-365, citing Richmond v. Dofflemyer (1980) 105
13
Cal. App. 3d 745, at 757 [The 1976 revision of the California partition provisions did not
14
change the preference in favor of physical division.”])
15
A forced sale is only required where physical division is not legally possible, for
16 example where an urban lot with one home cannot be divided, or where the division would
17 substantially diminish the value of each party’s interest. No such facts were present in Butte
18 Creek Island Ranch y. Crim, which is why the trial court’s decision was overturned and
19 resulted in the following rule of law: “Partition in kind is favored in law and in the absence
20 of proof to the contrary the presumption in favor of an in kind division will prevail.” (/d.
at 365, emphasis added.) Also immaterial is that the land at issue is not of similar character or
21
that a party receives a more desirable parcel upon division than was received by another. (Id.
22
at 366-368). Additionally, the Court can examine external factors when evaluating whether a
23
forced sale would benefit all of the parties, including the unique nature of the land, the inability
24 i
of the party to find a similar parcel, and the imposition of capital gains taxes should it be sold.
25 (id. at 363) In discussing such concepts the Court stated:
26 “...The alterative (sic) of sale and distribution of the proceeds would leave either
27 one or both of the parties in less than whole position in two primary respects: First,
28 capital gains taxes would have to be paid, leaving insufficient funds to purchase a
Page 9
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
similar property. Secondly, and more important, the extreme scarcity of properties
similar to the subject with respect to location, use, and general amenities, would
effectively preclude acquisition of a replacement.” (Italics added.)
The Court’s reasoned a division in kind is reasonable because it “does not disturb the existing
form of inheritance or compel a person to sell his property against his will” (/d.). Justice Sparks
put it bluntly: “Forced sales are strongly disfavored.” (Id. at 364.).
3 The Party That Attempts a Forced Sale Bears the Burden of Proving
that the Division In Kind Would Diminish Each Person’s Overall Value or that
it is Not Legal.
Butte Creek Island Ranch v. Crim provides clear instruction on the burden of proof and
10 how it applies in our case, stating, “[t]he burden of proof remains upon the party endeavoring to
il force a sale.” In seeking a forced sale, Defendants therefore bear the burden of proving the
12 proposed division in kind diminishes each person’s overall value or cannot be legally
accomplished. (See Richmond vy. Dofflemyer, supra, at 757.)
13
14 4 The Division Must Not Offend Local Planning Laws or the State’s
Subdivision Map Act.
15
16 The Butte County Code, its General Plan, and State law govern land development
within the unincorporated area of Butte County. These rules must be followed when
17
considering partition (See California Civil Code of Civil Procedure, Section 872.040 [ “nothing
18
in the partition laws (Title 10.5 of the Code of Civil Procedure) excuses compliance with any
19
applicable laws, regulations, or ordinances governing the division, sale, or transfer of
20
property”); see also 64 Op. Atty. Gen. 762 (1981) [“When a court orders the physical division
21 of real property in a partition action, the division must comply with the requirements of the
22 Subdivision Map Act, local ordinances adopted thereunder, zoning ordinances, and the general
23 plan for the area in which the property is located.”]). Plaintiffs’ division complies with all such
24 laws and is easily effectuated.
25 Plaintiffs’ division occurs through use of a series of lot line adjustments and, because
less than four parcels are impacted, falls within an exception to the Subdivision Map Act (see
26
Government Code §66412(d)), and satisfies the Butte County Code (see Breedon Depo., p.
27
12:18-22). Further, a lot line adjustment avoids the complexity, time, costs, and the
28
Page 10
PLAINTIFES’ TRIAL BRIEF FOR PARTITION IN KIND
requirement to meet all County development standards associated with a subdivision map or
parcel map (CEQA review included).4
5 Partition Through Division in Part and Sale in Part is Supported by
Statute and Applicable Case Law.
California Code of Civil Procedure Section 872.830 provides that a partial division of
the property and a sale of the remainder is acceptable if it would be more equitable than
division of the whole. The Law Revision Commission Comments state that this section “makes
explicit the authority of the court to order a partial division of the property and a sale and a
division of proceeds as to the remainder.” The sole case decided under this statute, Richmond
v. Dofflemyer, above, applied this rule, awarding certain lands to particular parties and ordering
10 the remainder sold, similar to what Plaintiffs seek here. This proposition is further supported
i through recognition that it is not necessary to divide all of the property between all of the co-
12 tenants at the same time (Richmond y. Dofflemyer, supra, 105 Cal. App. 3d at 754), or that
13 each co-tenant is entitled to a portion of each parcel (Jd. at 766). This case and the statute are
14 therefore binding on this Court. A complete copy of the Richmond y. Dofflemyer opinion is
attached to this brief and marked EXHIBIT “C”.
15
16 5(a) Understanding the Factual Make-up of Richmond y. Dofflemyer.
17
To best understand the significance of Richmond vy. Dofflemyer and its relation to the
18
present action, it is necessary to introduce its players, the property at issue, the interests each
19 player held in the property, the remedies sought, and the end result reached by the Court. In
20 this regard, a graphic offering some of this information is attached for edification and marked
21 EXHIBIT “D”.
22
23 4 The Butte County Code section 20-95.1 list the requirements for a “’Lot Line Adjustment’,
including that it must be “between four (4) or fewer existing adjoining parcels, and land taken
24 from one (1) is added to an adjoining parcel.”
25 5 In past, counsel for Defendants Rabo argued that the Court is not allowed to divide parcels,
citing to California Code of Civil Procedure, Section 873.240, which states that parcel division
26 should be avoided unless to prevent material injury to a party. In this case, Plaintiffs propose
no division of parcels, i.e. the creation of more parcels than existed before, and therefore reliance
27 on this code section is misplaced.
28
Page 11
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
Summarily, the ranch at issue in Richmond v. Dofflemyer consisted of 4,700 acres with
its historical use being cattle grazing and recreation. One party, plaintiff Janette Richmond,
wanted to partition the property in kind to allow her to maintain ownership of a specific part
of the Ranch that was adjacent to her personal and separately owned 50-acre parcel (Richmond
v. Dofflemyer, supra at 751), a parcel she had improved with a house and water source derived
from the ranch (/d.). Ms. Richmond owned 12.36% of the entire ranch (/d. at 749).
Her brothers, Defendants David and Donald Stillwell, each owned a 12.36% interest in
the ranch, The remaining defendants consisted of an individual named Robert Dofflemyer, his
Trust, and his children (“Dofflemyer Defendants”) who collectively owned 62.974% of the
ranch.
10 These five defendants argued that the entire ranch should be sold as a unit with the
11 proceeds divided among the parties, and to do otherwise would butcher the ranch and prevent
them from receiving its best monetary yield (Jd at 757-758). For reasons identical to the
12
circumstances presented in our own action, the Court disagreed. After trial, the Court awarded
13
judgment as follows:
14
1 Plaintiff, Ms. Richmond, received the portion of the ranch she
15
requested, which included taking two parcels and a portion of a section of land
16 within the ranch to end up with three parcels. The Court did this to ensure that
17 her home on the adjacent 50-acres and its ranch fed water source were protected
18 (d at 764-765). In doing so the Court used its broad equitable powers and the
19 guidance of CCP Section 873.220, which provides that as far as practical,
20 without material injury to the rights of other parties, the property shall be so
divided as to allow a party any portion of the property that embraces
21
improvements made by that party.
22
David and Donald Stillwell voluntarily combined their separate interests as
23 tenants in common, and by doing so were collectively awarded three parts of
24 the ranch for David Stillwell to use in conjunction with his off-site fish hatchery
business. Such off-site use was significant to the Court.
25
26 The remaining portion of the land was to be partitioned or sold as a ranch at the
election of the Dofflemyer defendants.
27
28
Page 12
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
The Dofflemyer Defendants appealed. They argued that the partition action should have ended
with the property being sold, that the manner in which the partition in kind occurred was
wrongful because it left a portion of the ranch theoretically undivided, i.e. kept in the remaining
defendants named at their respective interests; and that Ms. Richmond was given favoritism in
the land because it bordered her own separate parcel. The Appeals Court rejected all of these
arguments and affirmed. This sets the precedent for the current case and serves as a guide to
this Court to complete the partition as Plaintiffs request.
6. A Partition to Divide the Property, in Part or in Whole, Need Not be
Equal Where Owelty Can Be Used to Establish Equality.
California Code of Civil Procedure, Section 873.250 (a) is the statute governing the use
10 of owelty, which provides:
11 “Where a division cannot be made equally among the parties according to their
interests without prejudice to the rights of some, compensation may be required to
12 be made by one party to another to correct the inequality.”
13
A plain reading of the statute’s text shows that its purpose is to protect the presumption
14
that a division in kind is preferred over a forced sale. It does this by allowing a person who
15
intends to maintain their form of inheritance through a division of the land, even where an
16
unequal result is had, and that is because the inequality is equalized through owelty. Owelty is
17 a device available to this Court should it be necessary. Plaintiffs believe that if their proposal
18 is accepted, owelty will be unnecessary because the resultant relative values between Plaintiffs
19 and Defendants are equally represented.
20 Iv.
21 DETERMINATION OF THE OVERALL VALUE OF THE RANGE AND THE
INDIVIDUAL VALUE OF STILSON CANYON AND HONEY RUN PARCELS
22
23 The value of the range is best examined in two forms, the overall value of the range as a
24 stand-alone property and, secondly, by examining the two areas believed to have higher values
for single family home-sites, which is the areas of Stilson Canyon and Honey Run. For purposes
25
of this Brief, Plaintiffs will first begin with the range as a stand-alone property to determine its
26
fair market value.
27
28
Page 13
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
1 The Range as a Stand-Alone Property
Plaintiffs retained John Ryan to appraise the range. Mr. Ryan specializes in ranch
appraising and has a degree in agricultural management. He has appraised hundreds of ranches
in comparison to the defense expert, Daniel Ketchum, who admitted that he’s appraised only a
handful over his 30 year career (Ketcham Depo., 187: 15-25). And Mr. Ryan, unlike Mr.
Ketcham, actually visited the comparable sites that he used in his analysis and also took into
consideration matters like access.
It appears from the deposition testimony of each appraiser that the carrying capacity is a
predominant factor in determining the value of the range. Mr. Ryan put the carrying capacity at
250 head for the range, which is supported by the past tenancy of Monte Smith who has
10 historically leased the range for 250 head for winter grazing (See EXHIBIT “E”, Monte Smith
11 Cattle Lease). From this Mr. Ryan factored the acreage allotment, per animal, to maintain 250
12 head on the range, which equates to 17-18 acres per animal unit (17-18 AC/AU). This data in
13 addition to the features common to our range allowed Mr. Ryan to locate a good grouping of
14 comparable sales that put the Range’s value at $825.00 an acre or $3,715,000 in total value.®
This number is $215,000.00 higher than Scott Hamm’s appraisal (See Hamm Appraisal). Daniel
15
Ketcham disagrees with this value and instead performed an admittedly odd analysis to
16
determine the range value at approximately $2,430,000 for the grazing land ($500/acre) and
17
$935,000 for acreage in Stilson Canyon.” Mr. Ketcham’s grazing land price is absurdly low,
18
which can be shown in his comparable sales where the properties he relied on to set value are
19 sub-par when compared to the property here. Mr. Ketcham valued the acreage in Stilson Canyon,
20 assuming use as residential development, at $935,000, or $4,250/acre, an absurdly high price for
21 property that can be used only for grazing or agricultural purposes.
22 Mr. Ketcham incorrectly relied on comparable sales data for ranges with a carrying
23 capacity of 21-23 acres per animal unit, resulting in an artificially low value. His error resulted
from applying a carrying capacity of only 200 and not the 250 animal units that this range can
24
support, which inadvertently skewed his numbers to the benefit of the defense by putting the
25
range’s carrying capacity at 21 acres per animal unit instead of the 17 it has historically
26
27
© Mr. Ryan has updated his appraisal and will present revised per acre values in the $800 to $900 range at trial.
28 7 Mr. Ketcham has not updated his appraisal to reflect any changed conditions since 2017.
Page 14
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND
supported, During his deposition Mr. Ketcham admitted to his mistake and agreed that the
AC/AU should be at 17. Carrying capacity is the most critical factor in the valuation of a range,
and thus his appraisal is artificially low. Because of this error, he also failed to consider a sale
closely comparable sale that put the per acre value at nearly $800.00 an acre and not the $567 he
assigns to every acre on the range not in Stilson Canyon.
Summarily, the value of the range, as a stand-alone parcel, as determined by the
appraising experts, is between approximately $3,300,000 and $3,715,000. Similarly, a prior
appraiser, Scott Hamm, put the value of the range at $3,500,000.
2. Determining Value of the Stilson Canyon and Honey Run Areas of the
Range.
10
il Throughout the litigation the parties have disputed the values of the Stilson Canyon
acreage and the Honey Run Road acreage, and whether those values are greater than the per-acre
12
value of the range as a stand-alone property. Plaintiffs expert appraiser Kent Hume predicated
13
his opinion on the basis that the Stilson Canyon property is not going to be developed through a
14
subdivision map or parcel map because State law, the Butte County General Plan its Zoning
15
Code do not allow it. The defense does not contest this fact, which leaves only the individual
16 parcels within the areas of Stilson Canyon and Honey Run to value.
17 2 (a). Impact of the Williamson Act Contract on the Value in Stilson Canyon.
18
The Williamson Act Contract encumbering the range must be considered when valuing
19 parcels within Stilson Canyon. It is uncontested that the range property is largely encumbered
20 by a Land Preservation Contract, better known as a Williamson Act Contract. To edify this point
21 Plaintiffs’ surveyor Jim Elkins, formerly of PACE Engineering prepared a graphic that shows
22 the land encumbered by the Williamson Act (shown in purple), which is attached hereto and
23 marked EXHIBIT “F”, This map also shows the isolated un-encumbered areas south of Honey
Run in orange color. This graphical depiction displays the vast amount of range land encumbered
24
by the Williamson Act Contract (all but 78 acres). This is important to know, especially within
25
Stilson Canyon because the isolated parcels valued by the parties are less than 160 acres and
26
must face a cancellation fee or penalty under the Williamson Act (depending on circumstances)
27
if sold. Alternatively, the parcel could dis-enroll from the Contract (if the County allows it) but
28
Page 15
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND.
this requires waiting 10 years to utilize the parcel for residential development and payment of
back taxes (Breedon Depo., 17: 17-23).
Simply, if any of the Stilson Canyon parcels are divided and sold separately, the
Williamson Act Contract must be cancelled, which will impose a cancellation fee of 12.5% of
the value of the fee parcel (See California Government Code, Section 51283 (b)). If the contract
is ignored and parcels sold without cancellation, then a penalty could be assessed of 25% of the
fair market value, as allowed in California Government Code Section 512350 (b). Therefore,
when valuing the Stilson Canyon parcels that are less than the contract minimum of 160 acres
under the assumption they could be sold to the buying market, the cancellation fee must be taken
into consideration, which reduces the value of the parcel. Defendants’ expert failed to apply any
10 penalty reduction in opining on values within Stilson Canyon.
11 3. The Value of Stilson Canyon
The portion of the Range in Stilson Canyon is comprised of three legal parcels (See
12
EXHIBIT “A), which includes parcel 9 (127 acres), parcel 8 (which is assessed at approximately
13
82 acres), and parcel 7 (575 acres), Within these three legal parcels are five assessor parcels;
14
however, only legal parcels can be sold and only legal parcels should be valued. The two legal
15
parcels that offer any usable part of the canyon are parcel 9 and parcel 8. The usable land in this
16 area is nominal, is encumbered by an exclusive PG&E easement (300’ wide) and is largely
17 inaccessible. It is not the “end-all be-all” or “pearl of the oyster” property that the defense will
18 make it out to be. In fact, a map attached hereto marked EXHIBIT “F” (Nelson Map) shows the
19 limited accessible area (non-hashed on the graphic) that exists in Stilson Canyon. These factors
20 naturally influence value. Neither parcel can be sold without breaking the Williamson Act
Contract because they are both less than 160 acres in size. The Williamson Act Contract
21
expressly states parcels less than 160 acres in size will not be sold. A cancellation fee must be
22
considered in determining value, which Mr. Hume did; however, it remains that the County can
23
still block development on the parcel because of General Plan policies, zoning ordinances, and
24
the lack of any secondary access, which makes the Stilson Canyon nothing more than range and
25 perhaps a site for one home.
26 Parcel 7is actually bifurcated by parcel 8 (See EXHIBIT “A”), with its north triangular
27 tip (14 acres) made part of the larger parcel. The 14 acre assessor parcel is not a legal parcel, it
28
Page 16
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND.
is completely north of Little Chico Creek and has no access, which eliminates any ability to
market this as a single family home site. If valued, it must be appraised as part of the larger 575
acre parcel,
3 (a). Parcel 9 Value (Stilson Canyon):
Mr. Hume does not believe that Parcel 9 can be sold as a separate lot for single family
home construction, putting the chances of development at less than one percent. Mr. Ketcham,
on the other hand, valued the same parcel at $381,000 with no basis for doing so. In this regard,
he appears to rely heavily on a single 80-acre listing that puts the value at $381,000 or $3,000 an
acre, yet this alleged comparable is zoned differently (allows for further division) and contains
better features to the subject, including its grassland. He also seemed to ignore, without
10 explanation, the bulk of his own data (three of his five comparable sales) that show the values at
i what Mr. Hume opined, which is $1,800 to $2,000 an acre. He further refused to recognize the
significance of the Williamson Act Contract, the General Plan, and the Zoning Ordinance,
12
because to do so would deflate his value. Frankly, it appeared as if Mr. Ketcham’s goal was to
13
overstate the values in Stilson Canyon and undersell the overall value of the range; a handwritten
14
notation found in Mr. Ketcham’s file that he admitted to writing at the outset of his assignment,
15
which reads, “Need: Impossibly to equitably partition.” Plaintiff respectfully asserts that the
—_
16 evidence will show the true value of parcel 9 to be $240,000, and again, EXHIBIT “G” shows |
17 how most of this parcel is not accessible because of Little Chico Creek and the steep bluff to its
18 south,
19 Finally, Butte County would not entertain an immediate withdrawal from the Williamson
20 Contract. It wants to keep the land agricultural and to keep residential out on this parcel. Mark
Michelana, Senior Planning Director for Butte County, testified in deposition that it would take
21
years before the contract could be released.
22
3 (b). Parcel 8 Value (Stilson Canyon):
23
This parcel consists of 60 acres (as set forth in the deed) but is assessed at 82 acres. It is oddly
24
shaped and consists of two assessor parcel numbers. It is encumbered by a 300’ wide exclusive
25 PG&E easement for overhead power structures that pass through the parcel. It contains a road
26 (Stilson Canyon Road) that runs right through its center. It has a bluff to its south that makes it
27 inaccessible for development, and the floodplain covers the lot’s best area. There is very limited
28
Page 17
PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND.
usable space within parcel 8, which also surrounds a one-acre parcel owned by Stephen and
Robert Meline. This lot is not legally usable as a single family home site, and is best valued as
grazing land.
Mr. Ketcham erroneously treated Parcel 8 as two legal parcels (based on APN numbers
and not legal parcel numbers) which is improper, and he treated parcel 7 (the section bifurcated
by parcel 8) as two legal parcels, which is also wrong. Mr. Ketcham’s bifurcation of lots 7 and
8 offends this Court’s prior Interlocutory Order (only 13 legal parcels not 15), violates State law
and offends the Butte County Code. His analysis assumes a split occurs on lot 7 and lot 8, yet it
cannot happen absent a general plan amendment, environmental review, the creation of
secondary access, survey costs, and breach of the Williamson Act Contract.. Therefore, Mr.
10 Ketcham’s opinion on value for parcel 8 is based on incorrect facts should be excluded from
il consideration under Evidence Code, Section 352.
12
4 The Value of the Range Bordering Honey Run Road
13
The south portion of the range borders Honey Run and Centerville Roads. (See Exhibit
14
“A”.) Development has occurred adjacent to these areas with water sources made available
15
through well sites. Engineer Steven Nelson of S2-J2 traveled to various sites along Honey Run
16 to test for percolation and located several potential home sites in this area. This data, along with
17 comparable sales data allowed Kent Hume to assign $175,000 to a 160 acre parcel along Honey
18 Run, and several such parcels can be made in this area, according to Mr. Nelson. More
19 importantly, these parcels do not require
Preview
Aaron W. Moore, State Bar No.: 248566 Superior Court of Califoonia Collin M. Bogener, State Bar No.: 272560 County of Butte Michael L. Ricks, State Bar No.: 314687 Jason R. Lehfeldt, State Bar No.: 215792 11/1/2021 MOORE & BOGENER, INC. 1600 West Street Redding, California 96001 (530) 605-0355 / 605-3693 (fax) caine one Deputy Glectronicaily FILED Jeffery J. Swanson, State Bar No.: 155118 SWANSON LAW OFFICE 2515 Park Marina Drive, Ste. 102 Redding, CA 96001 (530) 225-8773 / 232-2882 (fax) 10 Attorneys for Plaintiffs Stephen Meline, IV, Robert J. Meline, Nelda F. Jessee, Melanie G. Edgington 1 —__ 12 IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF BUTTE 14 15 STEPHEN MELINE IV, CASE NO.: 127180 16 ROBERT J. MELINE, 17 NELDA F. JESSEE, PLAINTIFFS’ TRIAL BRIEF FOR MELANIE G. EDGINGTON PARTITION IN KIND 18 Plaintiffs, Trial Date: November 8, 2021 19 vs. Honorable Tamara L. Mosbarger 20 Dept. 1 JACK MELINE, et al. 21 Defendants. 22 23 24 I 25 THE PARTIES 26 This case is a partition action between Stephen Meline, IV, Robert Meline, Nelda F. Jessee and Melanie Edgington (collectively “Plaintiffs”) and Ronald Rabo, Michael Rabo, 27 Frederick Rabo, Mary Ann Rabo Schweiger, Susan Miller, Randall Meline and Joan Stoner 2 Page 1 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND as Co-Trustees of the Edward Richard Meline and Charelene M. Meline Irrevocable Trust dated December 30, 1992, and Linda G. Carlson as Trustee of the Jack Meline Irrevocable Living Trust Dated December 30, 1992 (collectively “Defendants”). The real property sought to be portioned is located in Butte County and is generally referred to by the parties as “The Range.” The Range consists of approximately 4,400 acres of range land east of Chico, made up of 13 legal parcels. (See PACE MAP entitled “13 Original Parcels” attached hereto as EXHIBIT “A.”) The parties are related to each other and The Range has been family property for over 85 years. The property has been used almost exclusively for cattle grazing. Brothers Stephen Meline IV and Robert Meline own and live on a separate parcel that is completely surrounded by The Range, as well as an adjacent parcel that is accessed 10 through the Stilson Canyon portion of The Range. They own, collectively with their sisters i Nelda Jesse and Melanie Edgington, a 25 percent undivided interest in The Range. For purposes of this action, the Meline brothers and their sisters have agreed to aggregate their 12 interests. Other than the Meline brothers, no other party lives on or adjacent to The Range. 13 Defendants collectively own the remaining 75 percent undivided interest in the Range 14 property. 15 Il. 16 CASE HISTORY AND PRIOR RULINGS 17 The original action between the parties was filed in 2003. The present case was filed 18 as a cross-complaint and then was later converted to be the primary action. 19 Plaintiffs come to this trial seeking a partition, partially in kind and partially by sale. 20 Plaintiffs seek by partition in kind of the ownership of specific lands bordering their personal residence as well as the 475 acre parcel they own adjoining the northern boundary of The 21 Range (constituting their 25% share), and a partition in kind or by sale of the remaining lands 22 (at Defendants’ choice) and a distribution of those proceeds to Defendants. To partition the 23 value of the Range equitably, the property lines of certain legal parcels must be adjusted 24 through the lot line adjustment process. Any remaining difference in value can be addressed 25 by the Court through an order for owelty — essentially payment to balance the values received 26 by each party. 27 28 Page 2 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND Throughout the pendency of this action, Defendants have generally opposed any partition proposed by Plaintiffs, but have acknowledged that a complete partition in kind is not feasible. They have sought instead to force a sale of the entire Range or in the alternative an order denying partition. Defendants dispute this Court’s authority and ability to equitably partition in the manner requested by Plaintiffs. Defendants recently provided a map to Plaintiffs with a proposed division of The Range, including Stilson Canyon, but Plaintiffs have not had time to evaluate the viability of the proposal. However, it is clear from a cursory review of the map that it does not comply with the Butte County General Plan and applicable zoning ordinances. By stipulation of the parties and the resulting order of the Court, the Honorable Noel 10 Watkins was appointed as referee. Judge Watkins heard and decided several issues in the 11 case over the years and presided over the trial that began February 21, 2017. Judge Watkins’ prior rulings represent the rulings of this Court and set the table for the issues to be decided 12 going forward. Those rulings are as follows: 13 1 June 13, 2016 Interlocutory Order on Partitioi 14 After briefing and a hearing held June 13, 2016, Judge Watkins as Referee issued an 15 Interlocutory Order on Partition (see Request for Judicial Notice filed herewith, Exhibit A.) 16 The Interlocutory Order established that: 17 1. The parties and their respective undivided interests in the real property are as 18 set forth on Exhibit A of the Order. 19 2. The real property that is subject to partition in this action is comprised of 20 Separate Parcels as set forth on Exhibit B of the Order. Judge Watkins also adopted the property descriptions both as to Assessor’s Parcel Numbers and Lot 21 Book Guarantee as stipulated by counsel. 22 3. The properties are to be partitioned either in kind or by sale to be determined 23 after evidentiary hearing and as included in a final decree. 24 25 26 27 28 Page 3 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND 2 June 13, 2016 Ruling on Motions (3) In his June 13, 2016 Ruling on Motions (3), Judge Watkins addressed three motions brought by the parties. (See Request For Judicial Notice filed herewith, Exhibit B.) The following summarizes each motion and Judge Watkins’ ruling: a. Rabo Motion for Judgment on the Pleadings. The Rabo Defendants argued there are 21 parcels to be partitioned in this proceeding, coinciding with the number of Assessor Parcel Numbers, The motion was denied based on the determination that underlying deeds described 13 legal parcels, and therefore it was the legal parcels, not APNs, that will be divided. , “APN’s are not legal descriptions or indicative of title, but are arbitrarily assigned by the County Assessor’s Office solely for the purpose of 10 designating the property for taxation.” il b. Motion for Production of Confidential Brief. Counsel for Rabo requested copy of a “confidential brief” lodged with Judge Watkins 12 by Plaintiffs’ prior attorney, Jody Burgess. The Court denied the request, stating “[i]t may 13 have been wiser if Mr. Burgess had not in 2016 referred to this 2015 brief but it is 14 inconceivable that anything in that brief could have affected a determination of law requested 15 six months later.” 16 c. Motion to Prohibit Aggregation 17 Defendants filed a motion prohibiting aggregation of interests, claiming instead that 18 each party must take their percentage in each of the 13 properties being partitioned. The 19 result would have been that each owner would have 13 separate interests scattered across the 20 entire 4500 acre ranch, many of the parcels being landlocked and without access. As a practical matter, this would have operated to require the sale of the entire Range to preserve 21 the value of the various parcels, i.e., partition by sale. The Rabo defendants also argued that 22 Plaintiffs should not be permitted to “aggregate” their ownership interest for partition in kind 23 and that Defendants could not be required to accept the 75% remainder to be portioned in 24 kind or by sale. The underlying purpose of this motion was to require a partition by sale of 25 the entire ranch. Judge Watkins ruled, based on Richmond v. Dofflemyer (1980) 105 Cal. 26 App. 3d 745, “that the motions seeking to prohibit aggregation is not well founded” and 27 denied the motion. 28 Page 4 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND I. ORDER OF PROOF Whether the Court may grant Plaintiffs’ requested partition partially in kind and partially by sale is a question of law to be decided by the Court. As detailed below, this predicate issue has been approved as the preferred method of partition by statute and controlling case authority. Plaintiffs therefore respectfully request that the order of proof proceed first on that issue. Plaintiffs will include an offer of proof on the proposed division and its feasibility under the law. Defendants should then be allowed to introduce argument as to why a sale of the entire property should be required. If the Court agrees that Plaintiffs’ proposed division is appropriate, the remaining 10 issues are issues of fact as to valuation. Plaintiffs will then present evidence regarding the ii relative values of the division and the equitable result for each of the parties, and Defendants can introduce their rebuttal Any difference in value can be addressed by the Court through a 12 determination of owelty. 13 iii. 14 KEY ISSUES IMPACTING THE MANNER OF PARTITION 15 16 Plaintiff's proposed division is shown on EXHIBIT “B” and is to be accomplished through the lot line adjustment process. This process is an exception to the Subdivision Map Act 17 and permitted by the Butte County Code. Unlike divisions under the Subdivision Map Act, the 18 lot line process is not discretionary; under California law Butte County must limit its review to 19 a determination of whether the parcels resulting from the adjustment conform to the County’s 20 general plan and zoning and building ordinances. (Gov’t Code §66412(d).) If the resulting 21 parcels comply with those requirements, then the County must approve the adjustment and new 22 parcel lines, 23 Importantly, the division proposed is legally encouraged because it preserves the form of 24 inheritance and avoids a forced sale. (See Butte Creek Island Ranch v. Crim (1982) 136 Cal. 25 App. 3d. 360, 366 [forced sales are strongly disfavored].) What is more, the facts of this case and the relief Plaintiffs seek mirror the result reached in the leading case of Richmond v. 26 Dofflemyer (1980) 105 Cal. App. 3d 745, a case widely known for its avoidance of a forced sale 27 28 Page 5 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND. by ordering a division in part and a sale of the remainder.' Lastly, the division shown on EXHIBIT “B” gives the defense a 3,500 acre plus portion of The Range that carries the best attributes of the overall cattle ranch, including its preferred range area, its water sources for late winter grazing, and its cover. In fact, very little of the land in Plaintiffs’ proposed parcel has been utilized as part of the cattle operation, which supports severing this portion from the remainder, and in doing so, leaving the best portions of The Range to Defendants, which portions can be kept or sold according to the preferences of the new owners, who will hold as tenants in common. (Id., see also Code of Civil Procedure, § 872.830 [trial court has authority to order partial division and sale of the remainder]). The Defendants, on the other hand, have requested that the entire range be sold. However, 10 if the Defendants are pursuing the sale method of partition with no intent of yielding ownership 11 in the land, i.e. that they intend to buy the entire ranch at sale, such an intent should weigh against an order to sell the entire range. In Butte Creek Island Ranch, supra, at 254, the Court concluded 12 that a forced sale under these circumstances constitutes a private condemnation: “Plaintiff had 13 and has no intention of yielding up physical possession of the land. It sought a forced sale of the 14 land in order to acquire defendant’s interest which he did not desire to sell. This is nothing short 15 of the private condemnation of private land for private purposes, a result which is abhorrent to 16 the rights of defendant as freeholder”. 17 Defendants’ argument for forcing a sale of the entire range is that Stilson Canyon? is 18 the most valuable part of The Range, claiming it affords residential development opportunities 19 similar to the land lying immediately west of the range. They are wrong. Stilson Canyon cannot 20 be developed for residential use through subdivision map or parcel map. State law, the existing Williamson Act Contract, the Butte County General Plan, and the County’s Zoning Code will 21 not allow it. Combining these barriers with the County’s General Plan policies focused on 22 preserving agriculture lands and maintaining Williamson Act contracts, as well as the County’s 23 and the State’s heightened awareness of fire danger in remote areas with only a single way 24 25 26 ' Richmond v. Dofflemyer (1980) 105 Cal. App. 3d 745 has been cited by numerous treatises on real property such as Miller & Star (Ch. 11, § 14) and CEB. There are no published cases 27 contradicting its holding, and it is consistent with Code of Civil Procedure section 872.030. 28 ? Stilson Canyon is that part of The Range that surrounds Plaintiffs’ residence and is not suitable for grazing. Page 6 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND out,? Defendants cannot reasonably argue that Stilson Canyon’s development will happen in the foreseeable future. Deposition testimony of Butte County Principal Planner, Dan Breedon, who will appear at trial, is insightful: Question: Okay. I understood when you said you don’t see a residential development in the Stilson Canyon area we’ve been talking about, you’ve nicely said that. The path to go down and get there includes layers of problems including arezone, Williamson Act, buffers, FEMA, access, it’s just a multitude of layers that add on with one big heavy, heavy brick put on top, the Williamson Act. Aside from a General Plan Amendment, those devises internally make it extremely difficult to do anything with Stilson Canyon but Ag use; correct? 10 Answer: That’s correct. (Breedon Deposition, p. 47: 3-13.) il Although Defendants seemingly accepted that the law precludes residential 12 development, they still argue that Stilson Canyon’s various parcels are extremely valuable — 13 the “pearl in the oyster”-- and conclude that this fact somehow limits the Court’s authority to 14 divide the property as Plaintiffs seek. The facts do not support the argument. 15 Defendants’ appraiser Daniel Ketcham is the key expert supporting Defendants’ 16 argument. However, Mr. Ketcham made a critical mistake in rendering his opinions. First, he 17 mistakenly valued county assessor parcels and not legal parcels, which offends California law and this Court’s past ruling stating, “APN’s are not legal descriptions or indicative of title, but 18 are arbitrarily assigned by the County Assessor's Office solely for the purpose of designating 19 the property for taxation.” (See Ruling on Motions (3) dated June 13, 2016). As made clear in 20 the Interlocutory Judgment provided by the Court, there are 13 legal parcels, which Mr. 21 Ketcham did not appraise. His mistake caused him to accord a $935,000.00 value to 22 approximately 220 acres of nongrazing land in Stilson Canyon ($4250 per acre), which over- 23 inflates the value of this land if it cannot be developed for residential properties. 24 Further, his erroneous appraisal is unsupported by comparable sales data. Significantly 25 Mr. Ketcham appraised the remaining 4,280 acres at $2,430,000.00 ($567.75 per acre), which 26 is far below any previous appraisal of this range and is contrary to the findings of Plaintiffs 27 28 3 As shown on the maps, there is a single road leading into or out of the canyon. Page7 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND. range appraiser, John Ryan. As detailed below, he admittedly applied an incorrect “animal unit per acre” that reduced the appraised value. Lastly, Defendants’ appraiser overlooked the impact of the Williamson Act and the cancellation fee and/or penalties associated with removing any one of the parcels in Stilson Canyon from the rest of The Range to support selling it to a third party. Simply stated, he did not account for the substantial penalties that are imposed if the properties in Stilson Canyon are sold to the public for value (See California Government Code, Section 51283 (b)). This error results in unrealistic, elevated values. Conversely, Plaintiffs’ expert accounted for the Williamson Act penalties, and recognized Stilson Canyon’s 220-acre parcel does produce a higher value per acre compared 10 to the overall range, but so does the land along Honey Run, which Plaintiffs proposal assigns 11 to Defendants. The relative values of the Stilson Canyon and Honey Run portions of The Range are not so great as to compel treating the land as anything other than rangeland, which is the 12 same conclusion reached by all past appraisers, including Scott Hamm, who was retained by 13 Judge Watkins. The same conclusion applies today, which is why Plaintiffs are within their 14 right to request the property be divided as set forth in EXHIBIT “B, which can be 15 accomplished through a simple a lot line adjustment and which ultimately provides fair value 16 to all parties, preserves the Plaintiffs’ inheritance, follows the strong precedent of Richmond y. 17 Dofflemyer, and leaves the best and most marketable attributes of The Range to the Defendants, 18 which they can sell, keep or divide at their choosing. 19 Til. 20 APPLICABLE LEGAL PRINCIPLES PERTAINING TO THE PARTITION OF THE RANGE 21 22 1 The Court is Afforded Great Discretion and Latitude in Deciding a 23 Partition Action. A partition suit is in equity (see Richmond v. Dofflemyer, supra, 105 Cal. App. 3d 745, 24 at 766) and a court of equity has broad powers and comparatively unlimited discretion to do 25 equity without being bound to strict rules of procedure. (/d.) Strict rules of procedure have no 26 place in a partition action. In Jameson v. Hayward (1985) 106 Cal. 682, at 687-688, the court 27 stated a partition action is an “equitable practice prescribed by law. Under it property may be 28 Page 8 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND divided in whole or in part. Compensation may be required of one for the greater value which he receives over that awarded to another.” (Italics added.) 2 Partition In Kind is Favored Whereas a Forced Sale is Disfavored. The disfavor of a forced sale is stated in Butte Creek Island Ranch y. Crim (1982) 136 Cal. App. 3d 360, originating from a decision by Judge Lloyd Mulkey, Jr. The Court of Appeal reversed Judge Mulkey’s ruling that ordered real property be partitioned by sale over the objection of a party seeking its division in kind. The case establishes the preference given to partition in kind versus a forced sale. Although Butte Creek Island Ranch y. Crim dealt with a partition of two discrete parcels of land, and is therefore factually distinguishable, the requirement to strictly construe 10 arequest for sale over the objection of a party seeking division in kind, is nonetheless appliable: li “The right of selling the land and dividing the proceeds, given by statute, is an innovation upon the common law, and since it takes away from the owner the right to keep his freehold in kind, 12 it is to be strictly construed ....” (Id, at 364-365, citing Richmond v. Dofflemyer (1980) 105 13 Cal. App. 3d 745, at 757 [The 1976 revision of the California partition provisions did not 14 change the preference in favor of physical division.”]) 15 A forced sale is only required where physical division is not legally possible, for 16 example where an urban lot with one home cannot be divided, or where the division would 17 substantially diminish the value of each party’s interest. No such facts were present in Butte 18 Creek Island Ranch y. Crim, which is why the trial court’s decision was overturned and 19 resulted in the following rule of law: “Partition in kind is favored in law and in the absence 20 of proof to the contrary the presumption in favor of an in kind division will prevail.” (/d. at 365, emphasis added.) Also immaterial is that the land at issue is not of similar character or 21 that a party receives a more desirable parcel upon division than was received by another. (Id. 22 at 366-368). Additionally, the Court can examine external factors when evaluating whether a 23 forced sale would benefit all of the parties, including the unique nature of the land, the inability 24 i of the party to find a similar parcel, and the imposition of capital gains taxes should it be sold. 25 (id. at 363) In discussing such concepts the Court stated: 26 “...The alterative (sic) of sale and distribution of the proceeds would leave either 27 one or both of the parties in less than whole position in two primary respects: First, 28 capital gains taxes would have to be paid, leaving insufficient funds to purchase a Page 9 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND similar property. Secondly, and more important, the extreme scarcity of properties similar to the subject with respect to location, use, and general amenities, would effectively preclude acquisition of a replacement.” (Italics added.) The Court’s reasoned a division in kind is reasonable because it “does not disturb the existing form of inheritance or compel a person to sell his property against his will” (/d.). Justice Sparks put it bluntly: “Forced sales are strongly disfavored.” (Id. at 364.). 3 The Party That Attempts a Forced Sale Bears the Burden of Proving that the Division In Kind Would Diminish Each Person’s Overall Value or that it is Not Legal. Butte Creek Island Ranch v. Crim provides clear instruction on the burden of proof and 10 how it applies in our case, stating, “[t]he burden of proof remains upon the party endeavoring to il force a sale.” In seeking a forced sale, Defendants therefore bear the burden of proving the 12 proposed division in kind diminishes each person’s overall value or cannot be legally accomplished. (See Richmond vy. Dofflemyer, supra, at 757.) 13 14 4 The Division Must Not Offend Local Planning Laws or the State’s Subdivision Map Act. 15 16 The Butte County Code, its General Plan, and State law govern land development within the unincorporated area of Butte County. These rules must be followed when 17 considering partition (See California Civil Code of Civil Procedure, Section 872.040 [ “nothing 18 in the partition laws (Title 10.5 of the Code of Civil Procedure) excuses compliance with any 19 applicable laws, regulations, or ordinances governing the division, sale, or transfer of 20 property”); see also 64 Op. Atty. Gen. 762 (1981) [“When a court orders the physical division 21 of real property in a partition action, the division must comply with the requirements of the 22 Subdivision Map Act, local ordinances adopted thereunder, zoning ordinances, and the general 23 plan for the area in which the property is located.”]). Plaintiffs’ division complies with all such 24 laws and is easily effectuated. 25 Plaintiffs’ division occurs through use of a series of lot line adjustments and, because less than four parcels are impacted, falls within an exception to the Subdivision Map Act (see 26 Government Code §66412(d)), and satisfies the Butte County Code (see Breedon Depo., p. 27 12:18-22). Further, a lot line adjustment avoids the complexity, time, costs, and the 28 Page 10 PLAINTIFES’ TRIAL BRIEF FOR PARTITION IN KIND requirement to meet all County development standards associated with a subdivision map or parcel map (CEQA review included).4 5 Partition Through Division in Part and Sale in Part is Supported by Statute and Applicable Case Law. California Code of Civil Procedure Section 872.830 provides that a partial division of the property and a sale of the remainder is acceptable if it would be more equitable than division of the whole. The Law Revision Commission Comments state that this section “makes explicit the authority of the court to order a partial division of the property and a sale and a division of proceeds as to the remainder.” The sole case decided under this statute, Richmond v. Dofflemyer, above, applied this rule, awarding certain lands to particular parties and ordering 10 the remainder sold, similar to what Plaintiffs seek here. This proposition is further supported i through recognition that it is not necessary to divide all of the property between all of the co- 12 tenants at the same time (Richmond y. Dofflemyer, supra, 105 Cal. App. 3d at 754), or that 13 each co-tenant is entitled to a portion of each parcel (Jd. at 766). This case and the statute are 14 therefore binding on this Court. A complete copy of the Richmond y. Dofflemyer opinion is attached to this brief and marked EXHIBIT “C”. 15 16 5(a) Understanding the Factual Make-up of Richmond y. Dofflemyer. 17 To best understand the significance of Richmond vy. Dofflemyer and its relation to the 18 present action, it is necessary to introduce its players, the property at issue, the interests each 19 player held in the property, the remedies sought, and the end result reached by the Court. In 20 this regard, a graphic offering some of this information is attached for edification and marked 21 EXHIBIT “D”. 22 23 4 The Butte County Code section 20-95.1 list the requirements for a “’Lot Line Adjustment’, including that it must be “between four (4) or fewer existing adjoining parcels, and land taken 24 from one (1) is added to an adjoining parcel.” 25 5 In past, counsel for Defendants Rabo argued that the Court is not allowed to divide parcels, citing to California Code of Civil Procedure, Section 873.240, which states that parcel division 26 should be avoided unless to prevent material injury to a party. In this case, Plaintiffs propose no division of parcels, i.e. the creation of more parcels than existed before, and therefore reliance 27 on this code section is misplaced. 28 Page 11 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND Summarily, the ranch at issue in Richmond v. Dofflemyer consisted of 4,700 acres with its historical use being cattle grazing and recreation. One party, plaintiff Janette Richmond, wanted to partition the property in kind to allow her to maintain ownership of a specific part of the Ranch that was adjacent to her personal and separately owned 50-acre parcel (Richmond v. Dofflemyer, supra at 751), a parcel she had improved with a house and water source derived from the ranch (/d.). Ms. Richmond owned 12.36% of the entire ranch (/d. at 749). Her brothers, Defendants David and Donald Stillwell, each owned a 12.36% interest in the ranch, The remaining defendants consisted of an individual named Robert Dofflemyer, his Trust, and his children (“Dofflemyer Defendants”) who collectively owned 62.974% of the ranch. 10 These five defendants argued that the entire ranch should be sold as a unit with the 11 proceeds divided among the parties, and to do otherwise would butcher the ranch and prevent them from receiving its best monetary yield (Jd at 757-758). For reasons identical to the 12 circumstances presented in our own action, the Court disagreed. After trial, the Court awarded 13 judgment as follows: 14 1 Plaintiff, Ms. Richmond, received the portion of the ranch she 15 requested, which included taking two parcels and a portion of a section of land 16 within the ranch to end up with three parcels. The Court did this to ensure that 17 her home on the adjacent 50-acres and its ranch fed water source were protected 18 (d at 764-765). In doing so the Court used its broad equitable powers and the 19 guidance of CCP Section 873.220, which provides that as far as practical, 20 without material injury to the rights of other parties, the property shall be so divided as to allow a party any portion of the property that embraces 21 improvements made by that party. 22 David and Donald Stillwell voluntarily combined their separate interests as 23 tenants in common, and by doing so were collectively awarded three parts of 24 the ranch for David Stillwell to use in conjunction with his off-site fish hatchery business. Such off-site use was significant to the Court. 25 26 The remaining portion of the land was to be partitioned or sold as a ranch at the election of the Dofflemyer defendants. 27 28 Page 12 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND The Dofflemyer Defendants appealed. They argued that the partition action should have ended with the property being sold, that the manner in which the partition in kind occurred was wrongful because it left a portion of the ranch theoretically undivided, i.e. kept in the remaining defendants named at their respective interests; and that Ms. Richmond was given favoritism in the land because it bordered her own separate parcel. The Appeals Court rejected all of these arguments and affirmed. This sets the precedent for the current case and serves as a guide to this Court to complete the partition as Plaintiffs request. 6. A Partition to Divide the Property, in Part or in Whole, Need Not be Equal Where Owelty Can Be Used to Establish Equality. California Code of Civil Procedure, Section 873.250 (a) is the statute governing the use 10 of owelty, which provides: 11 “Where a division cannot be made equally among the parties according to their interests without prejudice to the rights of some, compensation may be required to 12 be made by one party to another to correct the inequality.” 13 A plain reading of the statute’s text shows that its purpose is to protect the presumption 14 that a division in kind is preferred over a forced sale. It does this by allowing a person who 15 intends to maintain their form of inheritance through a division of the land, even where an 16 unequal result is had, and that is because the inequality is equalized through owelty. Owelty is 17 a device available to this Court should it be necessary. Plaintiffs believe that if their proposal 18 is accepted, owelty will be unnecessary because the resultant relative values between Plaintiffs 19 and Defendants are equally represented. 20 Iv. 21 DETERMINATION OF THE OVERALL VALUE OF THE RANGE AND THE INDIVIDUAL VALUE OF STILSON CANYON AND HONEY RUN PARCELS 22 23 The value of the range is best examined in two forms, the overall value of the range as a 24 stand-alone property and, secondly, by examining the two areas believed to have higher values for single family home-sites, which is the areas of Stilson Canyon and Honey Run. For purposes 25 of this Brief, Plaintiffs will first begin with the range as a stand-alone property to determine its 26 fair market value. 27 28 Page 13 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND 1 The Range as a Stand-Alone Property Plaintiffs retained John Ryan to appraise the range. Mr. Ryan specializes in ranch appraising and has a degree in agricultural management. He has appraised hundreds of ranches in comparison to the defense expert, Daniel Ketchum, who admitted that he’s appraised only a handful over his 30 year career (Ketcham Depo., 187: 15-25). And Mr. Ryan, unlike Mr. Ketcham, actually visited the comparable sites that he used in his analysis and also took into consideration matters like access. It appears from the deposition testimony of each appraiser that the carrying capacity is a predominant factor in determining the value of the range. Mr. Ryan put the carrying capacity at 250 head for the range, which is supported by the past tenancy of Monte Smith who has 10 historically leased the range for 250 head for winter grazing (See EXHIBIT “E”, Monte Smith 11 Cattle Lease). From this Mr. Ryan factored the acreage allotment, per animal, to maintain 250 12 head on the range, which equates to 17-18 acres per animal unit (17-18 AC/AU). This data in 13 addition to the features common to our range allowed Mr. Ryan to locate a good grouping of 14 comparable sales that put the Range’s value at $825.00 an acre or $3,715,000 in total value.® This number is $215,000.00 higher than Scott Hamm’s appraisal (See Hamm Appraisal). Daniel 15 Ketcham disagrees with this value and instead performed an admittedly odd analysis to 16 determine the range value at approximately $2,430,000 for the grazing land ($500/acre) and 17 $935,000 for acreage in Stilson Canyon.” Mr. Ketcham’s grazing land price is absurdly low, 18 which can be shown in his comparable sales where the properties he relied on to set value are 19 sub-par when compared to the property here. Mr. Ketcham valued the acreage in Stilson Canyon, 20 assuming use as residential development, at $935,000, or $4,250/acre, an absurdly high price for 21 property that can be used only for grazing or agricultural purposes. 22 Mr. Ketcham incorrectly relied on comparable sales data for ranges with a carrying 23 capacity of 21-23 acres per animal unit, resulting in an artificially low value. His error resulted from applying a carrying capacity of only 200 and not the 250 animal units that this range can 24 support, which inadvertently skewed his numbers to the benefit of the defense by putting the 25 range’s carrying capacity at 21 acres per animal unit instead of the 17 it has historically 26 27 © Mr. Ryan has updated his appraisal and will present revised per acre values in the $800 to $900 range at trial. 28 7 Mr. Ketcham has not updated his appraisal to reflect any changed conditions since 2017. Page 14 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND supported, During his deposition Mr. Ketcham admitted to his mistake and agreed that the AC/AU should be at 17. Carrying capacity is the most critical factor in the valuation of a range, and thus his appraisal is artificially low. Because of this error, he also failed to consider a sale closely comparable sale that put the per acre value at nearly $800.00 an acre and not the $567 he assigns to every acre on the range not in Stilson Canyon. Summarily, the value of the range, as a stand-alone parcel, as determined by the appraising experts, is between approximately $3,300,000 and $3,715,000. Similarly, a prior appraiser, Scott Hamm, put the value of the range at $3,500,000. 2. Determining Value of the Stilson Canyon and Honey Run Areas of the Range. 10 il Throughout the litigation the parties have disputed the values of the Stilson Canyon acreage and the Honey Run Road acreage, and whether those values are greater than the per-acre 12 value of the range as a stand-alone property. Plaintiffs expert appraiser Kent Hume predicated 13 his opinion on the basis that the Stilson Canyon property is not going to be developed through a 14 subdivision map or parcel map because State law, the Butte County General Plan its Zoning 15 Code do not allow it. The defense does not contest this fact, which leaves only the individual 16 parcels within the areas of Stilson Canyon and Honey Run to value. 17 2 (a). Impact of the Williamson Act Contract on the Value in Stilson Canyon. 18 The Williamson Act Contract encumbering the range must be considered when valuing 19 parcels within Stilson Canyon. It is uncontested that the range property is largely encumbered 20 by a Land Preservation Contract, better known as a Williamson Act Contract. To edify this point 21 Plaintiffs’ surveyor Jim Elkins, formerly of PACE Engineering prepared a graphic that shows 22 the land encumbered by the Williamson Act (shown in purple), which is attached hereto and 23 marked EXHIBIT “F”, This map also shows the isolated un-encumbered areas south of Honey Run in orange color. This graphical depiction displays the vast amount of range land encumbered 24 by the Williamson Act Contract (all but 78 acres). This is important to know, especially within 25 Stilson Canyon because the isolated parcels valued by the parties are less than 160 acres and 26 must face a cancellation fee or penalty under the Williamson Act (depending on circumstances) 27 if sold. Alternatively, the parcel could dis-enroll from the Contract (if the County allows it) but 28 Page 15 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND. this requires waiting 10 years to utilize the parcel for residential development and payment of back taxes (Breedon Depo., 17: 17-23). Simply, if any of the Stilson Canyon parcels are divided and sold separately, the Williamson Act Contract must be cancelled, which will impose a cancellation fee of 12.5% of the value of the fee parcel (See California Government Code, Section 51283 (b)). If the contract is ignored and parcels sold without cancellation, then a penalty could be assessed of 25% of the fair market value, as allowed in California Government Code Section 512350 (b). Therefore, when valuing the Stilson Canyon parcels that are less than the contract minimum of 160 acres under the assumption they could be sold to the buying market, the cancellation fee must be taken into consideration, which reduces the value of the parcel. Defendants’ expert failed to apply any 10 penalty reduction in opining on values within Stilson Canyon. 11 3. The Value of Stilson Canyon The portion of the Range in Stilson Canyon is comprised of three legal parcels (See 12 EXHIBIT “A), which includes parcel 9 (127 acres), parcel 8 (which is assessed at approximately 13 82 acres), and parcel 7 (575 acres), Within these three legal parcels are five assessor parcels; 14 however, only legal parcels can be sold and only legal parcels should be valued. The two legal 15 parcels that offer any usable part of the canyon are parcel 9 and parcel 8. The usable land in this 16 area is nominal, is encumbered by an exclusive PG&E easement (300’ wide) and is largely 17 inaccessible. It is not the “end-all be-all” or “pearl of the oyster” property that the defense will 18 make it out to be. In fact, a map attached hereto marked EXHIBIT “F” (Nelson Map) shows the 19 limited accessible area (non-hashed on the graphic) that exists in Stilson Canyon. These factors 20 naturally influence value. Neither parcel can be sold without breaking the Williamson Act Contract because they are both less than 160 acres in size. The Williamson Act Contract 21 expressly states parcels less than 160 acres in size will not be sold. A cancellation fee must be 22 considered in determining value, which Mr. Hume did; however, it remains that the County can 23 still block development on the parcel because of General Plan policies, zoning ordinances, and 24 the lack of any secondary access, which makes the Stilson Canyon nothing more than range and 25 perhaps a site for one home. 26 Parcel 7is actually bifurcated by parcel 8 (See EXHIBIT “A”), with its north triangular 27 tip (14 acres) made part of the larger parcel. The 14 acre assessor parcel is not a legal parcel, it 28 Page 16 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND. is completely north of Little Chico Creek and has no access, which eliminates any ability to market this as a single family home site. If valued, it must be appraised as part of the larger 575 acre parcel, 3 (a). Parcel 9 Value (Stilson Canyon): Mr. Hume does not believe that Parcel 9 can be sold as a separate lot for single family home construction, putting the chances of development at less than one percent. Mr. Ketcham, on the other hand, valued the same parcel at $381,000 with no basis for doing so. In this regard, he appears to rely heavily on a single 80-acre listing that puts the value at $381,000 or $3,000 an acre, yet this alleged comparable is zoned differently (allows for further division) and contains better features to the subject, including its grassland. He also seemed to ignore, without 10 explanation, the bulk of his own data (three of his five comparable sales) that show the values at i what Mr. Hume opined, which is $1,800 to $2,000 an acre. He further refused to recognize the significance of the Williamson Act Contract, the General Plan, and the Zoning Ordinance, 12 because to do so would deflate his value. Frankly, it appeared as if Mr. Ketcham’s goal was to 13 overstate the values in Stilson Canyon and undersell the overall value of the range; a handwritten 14 notation found in Mr. Ketcham’s file that he admitted to writing at the outset of his assignment, 15 which reads, “Need: Impossibly to equitably partition.” Plaintiff respectfully asserts that the —_ 16 evidence will show the true value of parcel 9 to be $240,000, and again, EXHIBIT “G” shows | 17 how most of this parcel is not accessible because of Little Chico Creek and the steep bluff to its 18 south, 19 Finally, Butte County would not entertain an immediate withdrawal from the Williamson 20 Contract. It wants to keep the land agricultural and to keep residential out on this parcel. Mark Michelana, Senior Planning Director for Butte County, testified in deposition that it would take 21 years before the contract could be released. 22 3 (b). Parcel 8 Value (Stilson Canyon): 23 This parcel consists of 60 acres (as set forth in the deed) but is assessed at 82 acres. It is oddly 24 shaped and consists of two assessor parcel numbers. It is encumbered by a 300’ wide exclusive 25 PG&E easement for overhead power structures that pass through the parcel. It contains a road 26 (Stilson Canyon Road) that runs right through its center. It has a bluff to its south that makes it 27 inaccessible for development, and the floodplain covers the lot’s best area. There is very limited 28 Page 17 PLAINTIFFS’ TRIAL BRIEF FOR PARTITION IN KIND. usable space within parcel 8, which also surrounds a one-acre parcel owned by Stephen and Robert Meline. This lot is not legally usable as a single family home site, and is best valued as grazing land. Mr. Ketcham erroneously treated Parcel 8 as two legal parcels (based on APN numbers and not legal parcel numbers) which is improper, and he treated parcel 7 (the section bifurcated by parcel 8) as two legal parcels, which is also wrong. Mr. Ketcham’s bifurcation of lots 7 and 8 offends this Court’s prior Interlocutory Order (only 13 legal parcels not 15), violates State law and offends the Butte County Code. His analysis assumes a split occurs on lot 7 and lot 8, yet it cannot happen absent a general plan amendment, environmental review, the creation of secondary access, survey costs, and breach of the Williamson Act Contract.. Therefore, Mr. 10 Ketcham’s opinion on value for parcel 8 is based on incorrect facts should be excluded from il consideration under Evidence Code, Section 352. 12 4 The Value of the Range Bordering Honey Run Road 13 The south portion of the range borders Honey Run and Centerville Roads. (See Exhibit 14 “A”.) Development has occurred adjacent to these areas with water sources made available 15 through well sites. Engineer Steven Nelson of S2-J2 traveled to various sites along Honey Run 16 to test for percolation and located several potential home sites in this area. This data, along with 17 comparable sales data allowed Kent Hume to assign $175,000 to a 160 acre parcel along Honey 18 Run, and several such parcels can be made in this area, according to Mr. Nelson. More 19 importantly, these parcels do not require