As a longtime baseball fan, I can understand why it’s known as the “game of inches.” I had no idea that the same rule applied to the real estate development industry. Neither did 17 residents of the Rose Garden around the old Fiesta Lanes site under development into high density housing by ROEM Builders of Santa Clara, until they received a letter from the company last month.
The letters sent to the residents by ROEM informs them that they have 10-15 days to remove “existing fences, brush, debris, structures and personal property” that the company claims is on their property in order to give ROEM “clear access” to build a new “good neighbor fence” as per the plans approved by the city council five years ago. In some cases, the company claims as little as THREE inches of a resident’s property. Alternatively, the company gives the residents an option to allow ROEM to remove the existing fences, etc., with their work crews. The letters contain no maps, diagrams, charts, surveyor reports or other legal documents to back up the company’s claim, and the company refuses to release copies of the survey. ROEM’s claims are raising eyebrows as some of these homes are nearly 100 years old.
How is it that ROEM is just now “discovering” this issue five years after the fact? Surely, like most property buyers, they would have performed a survey and compared the subsequent report to registered property boundary information. ROEM must have known about this before they bought the property, which makes their delay in bringing up the matter all the more suspicious. And if they didn’t perform a proper survey before they proceeded with the plan, then they shouldn’t be in the development business.
The planning department and city council’s reaction to this situation reminds me of an episode of “The Sopranos” where witnesses to a mafia crime state, “I didn’t see nuttin’” and “I don’t know nobody.” Claiming that it is a civil matter, the city has apparently washed its hands of it. However, that seems just plain wrong to me. This project was approved by the previous mayor and council whose dodgy relationships with developers we have discussed for years on this site. But whether or not the mayor and council were cozy with this particular developer is beside the point. The city should have completed due diligence on the project to make sure that all information—including property boundaries—was available to the planning department and council before making their decision, and they should have been closely monitoring the progress of the development. Discrepancies in property lines or anything else should have been discovered and dealt with during the due diligence process, or, at the very latest, early in the landscaping phase. If the city did not discover such information, and the developer knew about it and was not forthcoming with the information before the project was approved, then it is partly the city’s responsibility and they MUST get involved in straightening this matter out.
The way that ROEM is dealing with this matter stinks. But, as we already know, developers have no shame. Even if they are correct in their claim, their behavior in dealing with the matter is far from professional. Why don’t they make their survey public? What kind of “good neighbor” would cause such upheaval over a few inches, or even a few feet, after so much time has gone by, especially given the noise and dust the real “good neighbors” have had to put up with? Now tell me that developers aren’t greedy.
#1
Sobrato is a good community developer since they convert industrial land to residential and make millions while san jose taxbase dwindles away.
Jack –
The developer’s plans are with the City’s planning department. In addition, the City has planning maps, and should be able to give residents a look at what was approved. If the developer and/or the residents do not want the City to assist in the resolution of this, the City is truely powerless to assist. One other method that might prove to be helpful – the County’s Mediation program. Call the County’s Office of Human Relations, and ask for the Mediation program. They might be able to help. As always, though, both sides will have to be willing to participate in the mediation for it to be feasible.
Richard
Can’t speak to the other issues, but on Pellier Park ( I was part of the citizens group w. the much-missed Leonard McKay that built it ), I checked and Swenson is ready and willing to go w. the complete rebuilding of the Park and the city is dragging its feet – so don’t fault him on this one. He needs it very badly to complement his condos which are the hope of that part of the city. Also, on Pellier Park, it was allowed by the city to become a chained off, disgraceful mess before Swenson demo’ed the rump of a once fine park. TMcE
Greg is right. They have an easement by prescription: “open, notorious, hostile, under some claim of right and continuous for five years.” They have their case in the bag.
I’m not land use expert, but it seems to me that if a legitimate survey shows ROEM owns the property in question then they have every right to remove fences, etc.
HOWEVER, as a company that does a lot of business locally I hope that they understand the P.R. value in first releasing the results of their survey, allowing adequate time for public response and, if necessary, trying to reach an accomodation with the homeowners.
Sometimes you’re in the wrong even when you’re in the right. This seems to be the case with ROEM.
What’s perhaps not being reported is the subtext to this story. The homeowners in the area are strongly opposed to the high-density, low income housing units ROEM is putting up. So, when they said “Not in my back yard” ROEM responded by saying “O.K., we’ll just take over your back yard!”
Related to this issue, and to the new emphasis on “Sunshine,” I believe that the city should require audits after every major development project is completed to verify that the promises made during the aplication processes are realized. I know of one neighborhood in District One that is very angry that the promises made to get the project approved were never delivered. I’m guessing that other neighborhoods have had similar experiences. If the developers/builders know that they will be held accountable (and that falling short will hurt their chances of having future projects approved) they will be less likely to “cut corners.”
Pete Campbell
Jack, did you do any research before getting your panties in a twist on this issue?
You are basing your conclusions completely on the Merc’s woefully lacking reporting. It doesn’t appear that you took any efforts to get independent information.
There are a couple of squeaky wheels in this case who are making a lot of noise. They appear to be attempting to use public embarrassment in an attempt to get use of land they have no legal right to. The developer has undertaken outreach and attempted to work with the neighbors, and the overwhelming majority are fine with the efforts that have been made. The new fence will be a lot better than the old one.
There is always NIMBYism and resistance to change. The ROEM project will create investment and value in a neighborhood that has been neglected for a long time by the city.
If San Jose Inside is going to be an alternative to the Merc and not its echo, please pick up the phone and make some calls before popping off on whatever lame piece of Merc reporting gets you riled up on a given day.
Jack
WE are having a similar problem with Barry Swenson in Willow Glen at the former Alma Bowl site.“Atthe Tamien Station” site Swenson offered the residents a park if they aproved his plans for three 12 story towers and a five story parking lot at the CalTrain/Light Rail Tamien Station. The park is part of the presentation and bid he submitted to the City planning department and the VTA Board if they aproved and selected his bid over others.
Now Barry says concrete costs have gone up and he can`t provide the park and will not construct it. He also promised ground floor retail at the site, the first tower is almost finished and no retail.
This is why district six people have questions about Barry Swenson building out the Midtown Specific plan on San Carlos and Sunol at the VTA site. Residents don`t feel they can trust the Swenson company.
Recently on San Jose Inside Blog and on a previous SJI blog in 2006, Mark T questioned Tom if and when Swenson was going to complete his project with the Pellier Park.
Someone in our City has to step up to the plate and make these developers tow the line.Sobratto is a good example of a good comuinty developer, how do we get the others to mirror the Sobrato Co?
I would have to agree with you on this one Jack, the practices this developer are using smell bad, which is a shame because of their local presence.
I have followed this story since the news broke sometime back, and every time I have thought to myself, is there not some kind of ‘Grandfather’ law that protects these people?
I have a feeling this battle isn’t going to end well, for either side. Hopefully your post will cause some stir and ignite some fires.
Jack,
Since first hearing this issue several weeks ago, I’ve wondered about the law of prescriptive easement. Not being an attorney, I don’t know if it applies but it certainly seems so to me.
If the fence has been in the same place for the last ninety years, I would think that would be interpreted as having granted an easement. New property owners shouldn’t be able to deny an easement granted by a previous owner.
In any case, what’s the point? It’s not like they can cram another condo into that six inches or even three feet.
#13- Very well said Jack. And Dan’s column on this issue is suspect in that he claims there is much ado about nothing too. I think he has misspoken and missed the boat. It wouldn’t be the first time a vested interest is misleading people either.
I wonder how a new home owner who knows nothing about the development plans would feel if they moved in only to wake up and see their fence gone, and were blown off by some developer with an entitlement problem when they tried to find out why they took the fence down? Good neighbor means working together for the comfort and well being of all, not what’s good for me better be good for you or kiss off!
How was this development ever approved by the city?? I drove by and this neighborhood has been destroyed by this out of place new development. The surrounding neighbors are getting absolutely screwed and short of tearing down the new development they can never be adequately compensated, and now they are standing to lose more property. Disgusting.
#10 Inslider
How could you possibly know who I speak to on the telephone, via email or in person? Are you the NSA? FBI? Or are you ROEM?
As I have said many times before, this is not a newspaper and we are not in competition with the Merc or any other printed journal. This is an open forum blog for the exchange of ideas, information and opinion and for carrying on community discussions. You have taken advantage of the opportunity that this open forum affords you to express your opinion of the press reports on this issue, yet you supply no facts, figures or information to support your criticisms.
I can’t accept your contention that this is all being caused by a couple of “squeaky wheels” who are trying to embarrass the company. The fact is there are more than two residents involved in questioning the company’s actions. Even the press reports in the Rose Garden Resident, the Merc and on TV news bear this out. How would you feel if you got a letter out of the blue one day from a development company making a claim on what you thought was your property? Would you just roll over without pursuing the matter?
In order to objectively assess the validity of ROEM’s claims in this boundary dispute, it is necessary to have a copy of their independent surveyor’s report, which they have so far refused to make public. Then you would need copies of each of the 17 claims cross-referenced with the report and displayed on an accompanying map. These would then have to be compared to the planning documents and the historical records of property boundaries, and all of this data would need to be reviewed by an independent expert, such as an experienced surveyor or landscape architect, so they can render a “second opinion.”
None of this is possible unless ROEM makes their report public. If it would clear the matter up, then why don’t they? As I say in my column above, their claims may be legitimate. However, the way they have handled this situation leaves a lot to be desired and casts suspicion on the entire project.