How to deal with Zoning Conflict

Dealing with different types of Zoning

No matter where you live, sooner or later a question about property lines si going to come up. Who’s right and who’s wrong? This land is mine and so on. There are several ways to handle these arguments but first you must know about the Zoning Ordinances, Zoning regulations, and the desired property use.

First we’ll start with Nonconforming Use. This is when there is a conflict between existing property use and new zoning laws. There are two ways that a use may be nonconforming, the first is when the nature or a characteristic of a building doesn’t meet zoning laws. The second is the activity going on in the building does not conform to the law.

An example would be if you were using a factory in a residential area. The nonconforming use can be limited by time. After that specific time is up the property must be converted to conforming use or sometimes destroyed.

Another variation of Zoning is Conditional Use. Conditional Use  is when use is allowed by a zoning law, but is subject to certain conditions. For example, a rural/residential are might allow a professional office in the zone if they offer off street parking.

Quite often it  requires an approval and confirmation of a conditional use by the zoning laws. The owner would need to follow the application and the approval process with a zoning board and/or the officials.

Variances is another form of common conflict with Zoning. Variances is when a special use permit is an exception to zoning ordinance requirements. Usually you must show some kind of hardship to justify the variance.  Such as when an odd shaped lot messes with the requirements and you can not meet the requirements when building a home.

Spot Zoning  is when the local land use plans and zoning ordinances contain restrictions on land uses in specific areas outlined in the plan or ordinance. After the local government decides on a zoning plan then the property owners can seek exceptions to the requirements.  The owner can either amend the plan or the ordinance or apply for a variance or special use permit.

Every property is different and you may have several options when it comes to finding a solution for your zoning problem. A zoning  or land use lawyer can help you find a solution for your zoning problems.

DiJulio Law Group

Written Contracts for Home Improvement Projects

Projects Over $500 Require  Written Contracts

In California, all residential home improvement contracts must be in writing for all home improvement projects over $500. A contract constitutes a legal agreement between two or more people and is strictly defined by California Business and Professions Code Section 7159. This written agreement is one of the most important communication tools for both the contractor and consumer. A well written contract will accurately define what is to be accomplished by the contractor and will prevent any misunderstandings about what a job will entail. Details of the contract should delineate how the work will be done, when it will be done, what materials will be used, and how much it will cost.

All home improvement contract and subsequent changes should be legible, easy to understand, and inform the consumer of their rights. Generally speaking, homeowners who enter into contracts with contractors to improve, remodel or repair their homes almost always have a right to cancel the contract, without any penalty or obligation, within three business days after signing the contract. The most common grounds for cancelling (rescinding) a contract are fraud, mistake, undue influence, breach of contract, illegality and unconscionability. If you are promised something verbally make sure that it is included in writing. Don’t sign anything until you understand the contract and agree to the terms.

Oral Home Improvement Contracts

There have been a few cases in California where oral home improvement contracts have been enforced by a court. These cases usually involve situations in which the contractor has performed all or substantially all of the work agreed upon. Parties contracting for the work refused to pay for it on the basis that there was no written contract as required by law. The courts usually uphold the position of the contractor in these cases and cite the sophistication of the persons contracting for the work as a factor.

DiJulio Law Group

How to Pick a Mediator Without Darts


Ninety-five percent of all cases settle, and only five percent go to trial but attorneys put 95% of their efforts into the litigation and throw a dart to pick a mediator. Why not make the mediation the best it can be by picking the best mediator for the job?

There are a lot of people who are mediators: retired judges, litigators, transactional attorneys, “recovering litigators,” professional mediators, and feel-good facilitators. Choosing a mediator is more than going to a computer and throwing a dart at one of the top five. There are ways to select the right mediator and increase your chances for a successful mediation.

What is the case all about? Is it two businessmen fighting over money or ego? Is it two neighbors fighting over the fence or honor? Different disputes call for different types of mediations.

Mediation has a greater chance of settling the case if all parties believe in the mediator’s reputation, personality and qualifications. Therefore, a process that comes from the adversarial process, is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than being another part of the litigation game.

Just because the “other side” proposed a mediator that they have worked with before, that is no reason to reject that mediator. In fact, that may be a good reason to choose him or her. Remember the mediator has no ability to make you agree to anything you don’t want to, nor can they coerce or pressure you or your client. If the other attorney is proposing a mediator they are probably doing so because they feel that mediator has the ability to settle the case which is better than throwing a dart. If you are concerned that your opposing counsel may have too close a relationship with the mediator, ask the mediator! He will be very unlikely to outright lie to you.

While mediation is definitely an art form more than a science, there are many levels of tangible skills that mediators can study in order to become expert negotiators, facilitators and closers. Some mediators are ex-judges that are used to telling people how it is and forcing them to settle. This does not always work. “If the only tool you have is a hammer, you tend to treat most problems as nails.” The key issue is level of actual mediation training your mediator has (or how many tools they have to pull out of their tool box and use). Remember, if settling the case was easy to do, you wouldn’t need a mediator at all!

If they are highly emotional about the case, they will benefit (as will you) from a mediator who can handle emotional parties and help move them to a place where they can make a decision, gently guiding the case to a smooth settlement. If they are stubborn and intransigent, they may need logic and tenacious persuading. If they are weak decision-makers or are unsure about the fair value of their case, they may need the authority of a retired judge or seasoned litigator.

This may be the hardest part, but it’s critical to know yourself with clarity. For example, if you have a strong, authoritative presence, you may benefit from a mediator who has a softer touch to complement you. If you tend to be more left-brained, or a more logical or linear thinker, you may want a mediator who is more right-brained, more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a mediator whose style is more firm and directive such as an ex-judge.

The important thing to consider in selecting the mediator is that they are familiar with what it takes to discuss the issues and to reach a resolution. It is not enough for the mediator to understand the legal issues; they must understand how to relate enough to the parties and their issues to bring the parties to a mutually agreeable resolution. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute or has a background in the general area. If the dispute is a dissolution of a family business, it can be helpful to have a mediator who understands partnership and corporate law, business law and contract law. If the dispute is in a technical area then it could be beneficial to have a mediator who has a technical training. If there is a business rather than ad personal dispute, it is helpful to have a mediator that has been in business or ran a firm.

Consider the Difficulty Level of the Case.

Many smaller cases can be less complex, such as a simple collection or personal injury case that most mediators might be able to resolve. Other cases are the type that only a small percentage of mediators can settle them. For example, in a complex construction case, dozens of parties and carries may be involved, all with agendas and limits. You will benefit by trying to match the skill level of the mediator to the difficulty level of the case.

Since the case is much more likely to be resolved in mediation the selection of the mediator may be more important that the selection of the arbitrator, the judge or the jury! Take the time to make a wise choice or take dart throwing lessons.

David DiJulio, Esq.





















Consider the Subject Matter.

Consider Your Own Strengths and Weaknesses.

Consider Your Client’s State of Mind.

Consider the Mediator’s Training in Resolving Conflict.

Consider your Opponents Suggestions

Consider the Mediators Reputation.

Consider the Case.