That May Be A $500 Bow Tie I'm Wearing

kendallgray@andrewskurth.com (Kendall Gray) — Thu, 02 Sep 2010 18:16:12 GMT

I will admit it. My sense of style is not for everyone. Atypical. Iconoclastic. Nerdy. Or just bad. I would accept any of those words as accurate descriptors.

But as I sit here in my Brooks Brothers seersucker suit and my Brooks Brothers regimental stripe bow tie, I am torn between feeling the outrage of a genetically predisposed defense lawyer and disappointment that my ship came in and I simply missed it. I was alerted to my lost opportunity by stories in the ABA Law Journal, the Wall Street Journal, Law360 and Reuters.

You see, my natty bow tie is fitted with the Adjustolox mechanism, allowing me to adjust a "one size" bow tie to fit my scrawny neck without the slippage that occurs with inferior mechanisms. Naturally, such a useful and novel invention as the Adjustolox mechanism is patented.

Or, was patented. You see, the patents expired in 1954 and 1955.

Which was also probably the last time that large numbers of men dressed like I do.

Alas for my beloved Brooks Brothers, because a bow-tie-wearing patent lawyer purchased some bow ties still marked with the expired patent numbers. He brought a "false marking" claim against the glorious font of men's business style.

Apparently the very future of The Republic is placed at risk if one wrongly claims a patent for the Adjustolox. Presumably the market is being improperly excluded from the useful arts and sciences of bow tie adjusting technology. As a result the feds can fine you $500 for each Adjustolox you sell with expired patent numbers--if you do so for the purpose of deceiving the public. See 35 U.S.C. § 292.

Let's see:

$500 x [gajillion ties sold] = No longer practicing law to earn a living.

If, however, you sell falsely labeled Adjustoloxae simply because no one has looked at a bow tie since 1955, it's all good.

But you still have to prevail against Raymond E. Stauffer, the bow-tie-festooned patent lawyer, because 35 U.S.C. § 292 allows "any person" to seek a $500-per-Adjustolox penalty and share 50% of the take with the gubmint.

That was the ruling in Stauffer v. Brooks Brothers, Inc., released Tuesday by the Federal Circuit. Congress can create its own "injury in fact" -- a statutory violation -- and then essentially deputize "any person" to pursue collection for that injury.

Of course, the Federal Circuit was not asked to rule upon the wisdom of such a statute. That is the purview of Congress alone. If it were otherwise, little that Congress commits to writing would survive.

But who knew that my retro wardrobe could be such source of potential riches? No telling what revenue I could garner from investigating the patents on other aspects of my geezer lifestyle. No telling what else I prize is marked with patents that expired 50 years ago.

Mobile Content Providers Settle Unauthorized Billing Class Action

Thu, 02 Sep 2010 17:00:00 GMT

While the FCC has taken an interest in mobile marketing by carriers -- most notably with investigations of carrier early termination fees and proceedings examining wireless consumer "bill shock" -- it also is helpful to remember that the mobile content providers are subject to enforcement for deceptive marketing practices. Our colleagues at the Ad Law Access blog covered a recent settlement of a class action lawsuit by several mobile marketers. They remind marketers to clearly and conspicuously disclose costs so that consumers know what they are obligated to pay. Mobile service providers should ensure that their billing and collection agreements impose such an obligation on the content provider and that the carrier properly polices compliance.

Read the Ad Law Access story here.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Thu, 02 Sep 2010 05:25:58 GMT

Defendant companies entered into a contract where Grace Property would purchase 48 acres of Pacific Farm’s 74-acre property, which was bounded to the north by New York and to the east by Connecticut, to build a church. The planning and zoning commission for the town of New Canaan granted subdivision application to resubdivide the property into parcel A and parcel B, and special permit application to construct the Church on parcel B by renovating and adding to an existing building to create a temporary sanctuary pending the approval of construction of a permanent sanctuary.

Plaintiffs, who owned land in New York within 100 feet of the property appealed the commissions’ decision pursuant to CT Gen. Stat. § 8.8 claiming the subdivision and project violated zoning regulations. The lower court dismissed, concluding the plaintiffs did not have standing to appeal the commission’s decision because their properties were located in New York, and § 8.8 was intended to protect only the interests of persons who owned land within the state.

The Town then approved Grace Property’s application for an amendment to the special permit to allow them to construct a 900 person capacity permanent church. Plaintiffs appealed claiming the proposed project violated zoning regulations, and the commission had acted arbitrarily capriciously and in abuse of its discretion in approving the amendment. Their appeal was dismissed on the grounds that plaintiffs did not have standing because they didn’t own land in the state, and because the had ruled on that issue in the first appeal, the plaintiffs were barred by collateral estoppel from relitigating. Plaintiffs appealed both trial court decisions, and the Supreme Court of Connecticut consolidated the appeals, reversed and remanded.

The first issue before the court was whether the trial court improperly concluded plaintiffs lacked standing to appeal from the commission’s decisions pursuant to § 8.8 because they do not own land in the state. Under § 8.8, any person owning land that abuts or is within 100 ft of property, who is aggrieved by any decision of a board, may appeal to the superior court for the judicial district in which the municipality is located. In determining whether plaintiffs were within the zone of interests protected by the statute, and thus had standing to make a claim, the court analyzed the doctrine of extraterritoriality. When a statute doesn’t regulate conduct outside the state, there is no presumption that it does not apply extraterritoriality because the reason for that presumption- that states have limited power to regulate conduct outside their territorial jurisdiction- does not apply. Since it could not be assumed that the legislature intended to encompass persons outside the territorial jurisdiction simply because of the phrase “any person,” the court looked to the public policy underlying the statute, which authorized municipalities to adopt planning regulations to “promote the general welfare and prosperity of its people.” There would be no reason the legislature, by authorizing landowners in near proximity to subject land to enforce compliance, would intend to exempt land owners whose properties were in locations facing the greatest and most immediate effect of a proposed development because they were in another state. The court concluded that allowing landowners in other states to challenge a proposed project would protect the interests of a municipality and its citizens and harmonious development and in public health and safety, and would not benefit them at the expense of those in the municipality. Therefore, the plaintiffs did have standing to bring a claim under § 8.8 because they were within the zone of interest the regulation was designed to protect.

The second issue was whether the trial court’s decision, dismissing plaintiffs claim for lack of standing, could be affirmed on the ground that the plaintiffs were not statutorily aggrieved because the subdivision of the property was not stayed pending appeal pursuant to § 8-8(h) and because plaintiffs did not own land within 100 feet of parcel B on which the proposed church was to be built. In the first two appeals, the trial court found the entire undivided property was the “land involved” in the commission’s decisions, and thus the plaintiffs owned property within 100 feet. The court here concluded when there is an appeal, a subdivision becomes effective on the date that an appeal from the subdivision approval is terminated, and when general and specific statutes conflict they should be harmoniously construed so the specific statute controls. The section that specifically applied to subdivision approval, § 8-25(a), trumped § 8-8 (h) governing the appeals from land use decisions generally, and accordingly, the trial court in each appeal properly concluded plaintiffs were statutorily aggrieved because they owned land within 100 feet of the undivided property. This finding also meant it was unnecessary to address plaintiff’s claim that the trial court in the second appeal improperly determined that they were collaterally estopped from relitigating the issue of statutory aggrievement because that issue had been fully and finally litigated in the first appeal.

The last issue was whether trial court’s decision in the first appeal could be affirmed on the alternate ground that the plaintiffs failed to serve two copies of process on the town clerk as statutorily required. The marshal served one copy of process on the town clerk, which constituted legal notice to the commission, and there was not a “total failure” but rather a formal defect that could be corrected. Therefore, plaintiff failure to serve two copies of process did not deprive the trial court of subject matter jurisdiction. Both judgments by the trial court were reversed and the case was remanded for further proceedings.

Abel v. Planning and Zoning Commission of New Canaan, 2010 WL 2650519 (Conn.7/13/2010)

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR297/297CR81.pdf

Filed under: Current Caselaw, Extraterritorial Jurisdiction, Standing

Texas Eastern Transmission L.P. Pushes Forward in Arkansas

Wed, 01 Sep 2010 19:39:44 GMT

The Texas Eastern Transmission Company has notified residents and businesses in Arkansas that their pipeline representative is about to seek acquisition of their property. This is being done prior to approval of the environmental assessment by FERC. Licensing has not been granted. The utilities are pushing their projects without environmental assessments in order to acquire as much land as possible, thereby signifying the importance and risk they have taken in the project. You can only hope that the owners understand the seriousness of the easement they are granting.

In many areas along the Texas Eastern project, there is an already existing pipeline, which makes the environmental assessment application easier, but also makes the project potentially less safe.

tradingmarkets.com

If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition
of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.

A fact sheet prepared by the FERC entitled "An Interstate Natural Gas Facility On My Land? What Do I Need To Know?" is available for viewing on the FERC Web site (http://www.ferc.gov). This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings.

159: IPC issues first refusal to accept an application

AngusWALKER@bdb-law.co.uk (Angus Walker) — Wed, 01 Sep 2010 16:17:44 GMT

This is entry number 159, first published on 1 September 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on the Infrastructure Planning Commission's first refusal of an application.

Late-Filed Forms Update: Airband Seeks Review of FCC Denial

Wed, 01 Sep 2010 13:15:32 GMT

Last week, we posted an entry about the tough stance the FCC's Wireline Competition Bureau is taking on late-filed Universal Service Forms submitted by contributors. One of the parties whose USF appeal was denied, Airband Communications, has filed an application for review of the Bureau decision. The Commission yesterday asked for comment on the request. Comments are due September 30 and October 15.

The FCC's quick action is unusual in one sense: the deadline for petitions for reconsideration or applications for review of the Denial Order is not until September 14. Other parties to the same order may file additional petitions on the same issue.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Wed, 01 Sep 2010 05:22:38 GMT

The Rustons filed a complaint in United States District Court for the Northern District of New York against the Village of Skaneateles, Town Board and Town Planning Board (Town Defendants) for unconstitutionally frustrating their development plans for building a subdivision and additional sewer hookups on their 27 acre lakefront lot. The claims included conspiracy to [...]

The claims included conspiracy to violate civil rights, violation of their substantive due process rights and violation of equal protection rights. In ongoing litigation. the district court dismissed the conspiracy and substantive due process claims with prejudice, but dismissed the equal protection claim without prejudice. The Rustons then filed an amended complaint renewing all claims and the district court dismissed all claims again, the Second Circuit Court of Appeals affirmed for failure to state a claim on which relief could be granted.

On appeal, the Rustons argued they sufficiently asserted a “class of one” equal protection claim because Town Defendants, by refusing to consider their application and denying their requests to connect proposed new units to the Village sewer system, had intentionally treated them differently from other similarly situated parties with no rational basis. Although they alleged that the defendants considered similarly situated parties applications and allowed other properties to connect to the Village’s sewer system, they did not provide specific examples of the Town proceedings, applications made, nor cite any properties similar to their own. In order to succeed on a class of one equal protection claim, plaintiff must establish that: no rational person could regard the circumstances between parties different enough to justify differential treatment on the basis of a legit governmental policy; the defendant did not act by mistake; and the action at issue was non-discretionary. The Second Circuit Court of Appeals held the Rustons failed to meet these requirements because the properties cited were either commercial or residential single homes, differing in land use, type of housing and density levels, from their proposed 14- home development, and thus did not show an “extremely high degree of similarity.”

The court affirmed the district court’s judgment dismissing substantive due process claim and the facial constitutionality of the new zoning law, because Rustons did not have a federally protected property right to Town’s approval of the sewer hookups or the development itself, and they failed to allege that no set of circumstances existed under which the law would be valid.

Ruston v. Town Board for the Town of Skaneateles, 2010 WL 2680644 (C.A.2 (N.Y.) 7/8/2010))

The opinion can be accessed here

Filed under: Current Caselaw - New York, Due Process, Equal Protection

Important Medicare Preemption Decision

Tue, 31 Aug 2010 21:24:09 GMT

At long last, the Ninth Circuit Court of Appeals issued its opinion in the Uhm v. Humana, Inc. (.pdf), matter, finding the Medicare Act’s exhaustion requirements and preemption provision barred all of the plaintiffs’ common law claims. (-- F.3d -- (9th Cir. 2010).) Originally, the court issued an opinion two years ago, but vacated the decision last summer and took the case under submission after soliciting amicus assistance from the Centers for Medicare and Medicaid Services. The new Uhm decision is strong support for Medicare Act preemption, reflecting CMS’ underlying thesis that state law claims interfering with Medicare standards and regulations must be preempted.

Clean Energy Writer Has a Different Attitude

Tue, 31 Aug 2010 18:50:55 GMT

Craig Shields, Editor of 2GreenEnergy.com maintains a different outlook on the power transmission system. The owners often worry about the harm to the personalized, farming or business operations.

Mr. Shields insight is probably consistent with the majority in the country, although certainly not those facing the task of retaining a lawyer and fighting a condemnation proceeding. The real question is “By the time you are done with the geothermal, wind and sun, will the environmental costs and fees be as great as what we are using now?” Without doubt, Mr. Shields would state the answer is “no”. Others might respond differently.

renewableenergyworld.com

But let's look at the transmission issue on a national or continental scale. I know there are tons of smart people – including Bill McKibben and thousands of other authors – who look to individuals as the solution to the energy problem. McKibben, for example, sees a future in which there is a "farmers’ market" of energy, where everyone is his own utility, putting his unused electrons back onto the grid.

While it’s hard to disagree with this, there is most definitely a matter of scale. With our growing population of energy-hungry consumers, utility-scale renewables appears to me to be the only way to get this done. Yet renewable resources are localized: the sun shines hottest in the southwestern deserts, the wind blows hardest in the plains, the mountains have the best geothermal resources, etc. And this is where the transmission issue comes in.

New Jersey Appellate Division Holds that Shareholders of New Jersey Corporations Have a Limited Right to Inspect Board of Directors and Executive Committee Minutes

Tue, 31 Aug 2010 18:50:24 GMT

In the recent decision Cain v. Merck & Co., Inc., the New Jersey Appellate Division held that shareholders of New Jersey corporations are entitled to inspect board of directors and executive committees minutes, in addition to minutes of shareholder meetings. The Appellate Division made clear, however, that shareholders must demonstrate a “proper purpose” in exercising this right and that the scope of board of directors and executive committee minutes required to be made available for shareholder review are limited to only those minutes pertinent to that proper purpose.

In Cain, the plaintiffs made a written demand, pursuant to N.J.S.A. 14A:5-28(4), for the inspection of certain books, minutes and records of the company in connection with the plaintiffs’ claim that the company had engaged in wrongful conduct and mismanagement in failing to disclose the results of a clinical drug trial for a period of twenty-one (21) months. The trial court ruled that the plaintiffs were entitled to inspect all of the board of director and executive committee minutes for that period.

Section 14A:5-28 provides that: (1) a corporation is required to “keep the books and records of account and minutes of the proceedings of its shareholders, board and executive committee”; (2) upon request, a corporation shall provide certain financial statements to a shareholder; (3) a shareholder holding at least five (5%) percent of the outstanding stock of a corporation, or who has owned his stock for at least six (6) months, has the right to inspect “for any proper purpose” a corporation’s “minutes of the proceedings of its shareholders and records of shareholders”; and (4) a court may, “upon proof by a shareholder of proper purpose . . . compel production . . . of the books and records of account, minutes, and record of shareholders” of the corporation. In construing the statutes, the Appellate Division acknowledged that shareholders have a qualified common law right, not limited to simply stock transfer records, to examine corporate books and records, provided that the inspection request was made in good faith and for a proper purpose. The Appellate Division further noted that unlike the language of subsection (3) of the statute, the language of subsection (4) was not specifically limited to minutes of shareholder meetings. Accordingly, the Appellate Division held that under N.J.S.A. 14A:5-28(4), a shareholder is entitled to inspect the minutes of the board of directors and executive committees of a corporation.

Recognizing that an unfettered right to inspect board of directors and executive committee minutes could be detrimental to the best interests of the corporation and its shareholders, the Appellate Division made clear that this inspection right is not unqualified. A shareholder has the burden of proving a “proper purpose” for its inspection demand, based upon “specific and supported, credible allegations of mismanagement.” “Fishing expeditions” by shareholders based upon general or unsubstantiated claims of mismanagement are not permitted. Additionally, a court has the power to specifically circumscribe the scope of the inspection, limiting the inspection to only those documents relevant to the shareholder’s demonstrated proper purpose. In Cain, therefore, the Appellate Division limited the scope of the minutes available for plaintiffs’ inspection to only those portions of board of directors and executive committee minutes dealing with the clinical drug trial during the period the plaintiffs alleged the company wrongfully withheld the results of the trial. The plaintiffs were not entitled to inspect all corporate minutes for that period, as previously allowed by the trial court.

Keystone Moves Forward in Nebraska

Tue, 31 Aug 2010 18:04:59 GMT

    The property owners in Nebraska face an aggressive acquisition utility in Keystone. The questions raised by the linked article from the Lincoln Journal Star are multiple.
   First, should Keystone start acquiring “within thirty days”, prior to obtaining permission from the Federal Energy Regulatory Commission and any other necessary licensing authorities?
   Second, does Keystone understand the effect it may have on the environment in Nebraska?
   Third, do the owners understand they should not expect a million dollars unless there is a million dollars worth of damages? Just compensation is not a gift but a constitutional right premised upon fairness.
   These issues will play out in an area which has not faced a large number of eminent domain proceedings. Fortunately, for these property owners, they have a reasonably fair judicial process and outstanding condemnation lawyers in the area such as William Blake in Lincoln, to help them through the fight.

Journalstar.com

"It's gone beyond that," she said of the proximity of family property to the pipeline TransCanada wants to bury from Keya Paha County on through the York area to Jefferson County and beyond. "It's not just that it's in my pasture."

Nonetheless, pipeline matters take on greater urgency for the Condons and others who got letters from TransCanada about July 21. That's because the 30-day timetable cited in the letter before land condemnation proceedings begin is about to expire.

"While we hope to acquire this property through negotiation," said the certified letter sent to Shirley Condon, "if we are unable to do so, we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings against this property promptly after the expiration of this one-month period."

As steadfast pipeline proponents and opponents know so well, Keystone XL is the $7 billion follow-up to the initial Keystone line that began carrying oil shale southward from the tar sands of Alberta this year.

Keystone XL is not a done deal. Among the key hurdles yet to be cleared are approval of the environmental impact statement and issuing of the federal permit TransCanada needs from the U.S. State Department.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Tue, 31 Aug 2010 05:22:10 GMT

Plaintiffs filed negligence suit against the town of Westport, the planning and zoning board and three individual employees for allegedly issuing permits in violation of zoning regulations to a contractor who raised the grade of plaintiff’s abutting property, creating a slope that caused flooding on their property; improperly concluding that no zoning violations had been found based on defendant’s friendship with contractor; failing to respond to their requests for reasonable or proper inspection; and forcing them to initiate legal action against neighbors.

The trial court found defendants were entitled to government immunity, thus requiring plaintiffs to provide an evidentiary basis for an exception to the enforcement of zoning regulations and what constitutes a reasonable or proper inspection, since both were considered discretionary acts. Plaintiffs were not subject to the identifiable person-imminent harm exception because the complaint only alleged a “threat” to their septic system from the water runoff, and no failure had occurred. Defendants motion for summary judgment was granted because plaintiffs did not show defendants were exempt from governmental immunity, public policy concerns weighed against imposing a duty of care to support an action in negligence, and the litigation expenses from a former suit were not recoverable.

On appeal, plaintiffs argued that checking to see whether required permits had been obtained and filed, and accurate inspections, reporting, and enforcing zoning regulations did not constitute discretionary acts, and the identifiable person-imminent harm exception did in fact apply because they owned the abutting property reportedly in violation of the regulations and the failure to enforce the regulations caused excessive amounts of surface water to be discharged every time it rained, causing flooding, erosion, and threatening the integrity of the septic system.

Applying the common law doctrine of tort liability, which holds a municipal employee liable for ministerial acts, but grants them immunity when performing a governmental act (which is discretionary in nature), the Court found that inspections to determine whether property conforms to regulations and codes involve an exercise of judgment, and as such were discretionary in nature. In addition, the regulations on which the plaintiffs relied either imposed obligations on the permit applicant or required a predicate discretionary determination by the defendants as to whether a violation existed.

Under the identifiable person/imminent harm exception to municipal liability, a public officer is not granted governmental immunity if it’s apparent their failure to act would be likely to subject an identifiable person to imminent harm- which requires the identification of a discrete place and time period at which the harm will occur, and not a foreseeable event at some unspecified point in the not too distant future. The Appellate Court held that, although the plaintiffs’ property constituted a discrete place, and the rainfall would occur at some point in the future, a ‘significant rainfall causing excessive surface runoff’ was not imminent because it would occur at an indefinite point in time. In addition, there was no definite point of time to have expected plaintiffs would incur expenses from initiating legal action as a result of defendants’ failure to respond satisfactorily to their complaint.

Lastly, since the defendants were entitled to governmental immunity, the issue of whether they owed the plaintiffs a duty that would support an action in negligence was not considered, and the trial court’s judgment granting defendants motion for summary judgment was affirmed.

Bonington v. Town of Westport, 2010 WL 2572818 (CT 7/6/2010).

The opinion can be acessed here.

Filed under: Current Caselaw, Enforcement

California Supreme Court Rules That an Insured Seeking to Undo a Settlement Agreement with Its Insurer Must Sue for Rescission and Return the Settlement Proceeds

Mon, 30 Aug 2010 22:10:33 GMT

This case arises out of an insured’s claim against its insurer for property damages caused by an earthquake that struck the Los Angeles area in 1984. After a protracted dispute (during which the insurer made substantial payments) over the value of the claimed damages, and the extent to which they were earthquake-related, the parties entered into a settlement agreement. The insurer agreed to pay an additional $1.5 million, and the insured executed a standard release by which it waived its right to recover any undiscovered damages and agreed to forbear bringing suit on any and all claims, known or unknown.

Several years later, the insured brought a lawsuit seeking to recover additional damages under the policy. It argued that it was fraudulently induced into entering into the settlement agreement and that under general contract principles it could elect to affirm the agreement (and thus keep the money it had already received) and sue for damages caused by the alleged fraud. The trial court, relying on decades of precedent from the Supreme Court and the Court of Appeal, as well as the statutory scheme governing settlements and releases, granted dispositive motions in favor of the insurer. The authorities, the court said, made clear that a party seeking to undo a settlement agreement must seek rescission and return any monies obtained as consideration for the release. The Court of Appeal reversed. Distinguishing the prior authorities on the basis that they involved third-party personal injury claims, rather than first-party breach of contract claims, the court found that public policy supports the rule (followed in several jurisdictions) that a policyholder may affirm, keep the money, and sue, despite having executed a full release.

The Supreme Court reversed the Court of Appeal. Village Northridge Homeowners Ass’n v. State Farm Fire and Casualty Company, __Cal.4th__ (Aug. 30, 2010). The sole purpose of the settlement agreement (unlike in the cases cited by the Court of Appeal) was to permit the insurer to buy its peace and avoid future litigation. There is no principled basis on which to distinguish this case from the personal injury cases, and the statutes enacted by the Legislature make clear that a party seeking to avoid its obligations under a settlement which includes a litigation waiver must do so through rescission, which requires it to return any consideration received. To hold otherwise would lead to a palpably inequitable result – the insured could affirm that part of the agreement that was favorable to it (the receipt of money) while voiding that part of the agreement that favored the insurer (forbearance of litigation). Neither public policy, case precedent, nor legislation support such a rule of law.

Property Owner Complains About Pooling

Mon, 30 Aug 2010 21:39:45 GMT

   Ron Kamzelski wrote a letter to the Editor of the Wellsboro Pennsylvania Gazette explaining his anger about eminent domain acquisition to require forced pooling.
   The underlying problem remains one of how you value a lease. While Mr. Kamzelski recognizes there are leases for $1 an acre, there are also leases worth $5,000 per acre. What will happen over the coming years is the acquiring parties will simply state that they want to hold at their lowest number, try to have people buy at the lowest number and then try to establish that lowest number as the value in future acquisitions.
   It is a long treacherous downhill ride for property owners facing the pooling problem.

Wellsboro Gazette

Meanwhile your bought and paid for politicians propose that gas companies can pool your assets without your consent for way less compensation than could be achieved by free market negotiation. Maybe forced pooling made little difference for shallow gas wells when leases were only $1 an acre, but now that they are over $5,000 an acre for some Marcellus Shale leases, forced pooling clearly benefits only the gas companies. What company would bother to lease your land if they knew they get your gas without a lease and why would they pay you more than the minimum 12.5 percent royalty?

Now pipeline developers want the right of eminent domain for gathering systems. Eminent domain has long been a mainstay of interstate gas transmission pipelines but not gathering lines. All the thousands of wells planned for our area are going to be connected to a main transmission line. If the shortest route for their gathering line is through your property, that’s where they want it to go with or without your permission.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Mon, 30 Aug 2010 05:31:35 GMT

Neighbors filed a pro se notice of appeal in the Environmental Court of Vermont challenging the Town of Barton Zoning Board of Adjustment’s (ZBA) decision to issue a conditional use permit to Verizon Wireless to build an antenna in the form of an artificial tree adjacent to neighbor’s land. They alleged that neither the Town nor Verizon provided adequate notice prior to the public hearing, and that statutory and municipal law required the new antenna to be co-located on an existing tower.

The Environmental Court dismissed the case because the neighbors did not participate in the proceedings until after the public hearing had taken place and the ZBA made its decision, nor did they file a request for party status in a separate motion, thus failing to satisfy the requirements for standing.

Neighbors then filed a notice of appeal to the Supreme Court of Vermont claiming they were denied a meaningful opportunity to participate in the proceedings below and their amended statement of questions were adequate to raise the issue. The issue before the court was whether the neighbors, by calling the zoning administrator to express their opposition after learning of the hearing and submitting a letter to the ZBA the same day, satisfied the participation requirement of 24 V.S.A. §4471(a), which states that participation “consists of offering, through oral or written testimony, evidence or a statement of concern related to the subject of the proceeding.”

The Supreme Court of Vermont upheld the decision by the Environmental Court that the neighbors’ acts were insufficient because they did not occur until after the ZBA had made its decision. The plain meaning of the statutory language indicated that the activity must take place while the municipal decision-making process was still ongoing, and that “participation” would be meaningless if commenced after the issue has been resolved. The Court reasoned that allowing such participation after decision was reached would “only frustrate the need for finality in municipal decisions.” As to the waiver of the participation requirement due to the alleged lack of notice, the Court found that it did not have discretion to waive such statutory requirements to allow standing for neighbors, because there were no categories created and authorized by statute to do so.

Neighbors also contended that the alleged lack of notice was a procedural defect preventing their participation in the ZBA proceeding, and that denying them party status would result in manifest injustice. However, the Environmental Court dismissed these arguments for lack of a specific motion asserting party status pursuant to Rule 5(d)(2), which requires an appellant to inform other parties and the Court at the first instance if they wish to claim party status, despite failing to participate in proceedings below. Noting that the determination of party status is at the discretion of the trial court, the Supreme Court held that the trial court ruled correctly because the neighbors’ notice of appeal made no mention of any lack of required notice below or that their party status was based on a procedural error, and the amended statement of questions claiming they did not receive proper notice of the hearing was submitted four months after the filing limit. In addition, the burden of establishing party status was on the neighbors, and the court was not under obligation to consider a late-filed motion, or suggest the neighbors make such a filing.

The Supreme Court of Vermont thus affirmed the decision of the Environmental Court on the grounds that the neighbors failure to follow proper procedure under Rule 5 to establish party status was not applicant’s fault, that the statutory requirements for standing claims to be filed with notice of appeal were logical and fair, and failure to abide would “import uncertainty into a relatively straightforward procedural predicate,” and result in unnecessary delay.

In re Verizon Wireless Barton Permit, 2010 WL 2696862 (VT 7/9/10)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2009-201.html

Filed under: Current Caselaw, Standing

FCC Preparing Multiple "Junk Fax" Enforcement Actions

Sun, 29 Aug 2010 23:28:31 GMT

There has not been an official announcement, but indications are strong that the FCC is planning soon to issue a number of forfeitures and proposed forfeitures for the sending of so-called "junk faxes." Under the Telephone Consumers Protection Act of 1991 ("TCPA"), it is unlawful to send "unsolicited advertisements" via facsimile. In the past two weeks, the Enforcement Bureau has begun "circulating" 11 new orders that appear to be junk fax enforcement orders. (Circulation is the process of submitting an order for a vote by the Commission.)

The Commission, rather than the Bureau, must vote on all proposed fines above $100,000, so one may presume that each item involves a significant fine. Significant fines also are likely because several of the subjects of the draft enforcement orders have histories of prior FCC enforcement actions. One company -- The Hot Lead LLC -- received a fine of $2.5 million in 2008 for junk faxes. Pending against it are four proposed fines, of $739,500, $695,000, $47,000 and $51,500. Another company -- Sunstar Travel and Tours -- received a fine of $169,500 in 2008 and has a proposed fine of $136,000 pending now.

In addition, one potential action appears to be against an alleged "fax broadcaster." If issued, it would be the first proposed forfeiture issued under the Commission's "high degree of involvement" standard for fax broadcaster liability.

Caveat: Circulation of an item does not necessarily indicate impending action by the FCC. Four apparent "junk fax" orders began circulating in June 2009. 14 months later, those orders remain under consideration.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Sun, 29 Aug 2010 05:39:23 GMT

A New York appellate court upheld the town board’s refusal to vacate restrictive covenants imposed as a condition to rezoning where the property owner voluntarily agreed to the placement of the restrictive covenants on the property three years earlier. The property, which was rezoned from A-1 residential zoning to L-1 industrial zoning, involved as part of the rezoning, a series of restrictive covenants requiring the property owner to maintain buffers on three sides of the property. Three years later the plaintiff sought to have the covenants repealed, asserting that changed circumstances rendered the buffers unnecessary and therefore the covenants unduly burdened the property. The court upheld the board’s denial, noting that “A local municipality may impose reasonable conditions on a rezoned property in order to minimize an adverse impact on the neighborhood or community in the interests of public safety, welfare, and convenience.” The Court found that the Board’s decision was within its authority, and that based on the record it was rational and not arbitrary and capricious.

Mallins v Foley, 2010 WL 2404184 (N.Y.A.D. 2 Dept. 6/15/2010).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27839.pdf

Filed under: Current Caselaw - New York, Restrictive Covenants

Application of RICO to foreign activities is doubt.

Sat, 28 Aug 2010 20:01:21 GMT

Lawyers for British American Tobacco Co., seeking a chance to overturn an anti-racketeering ruling against it, on Friday notified the Supreme Court of a new lower court ruling that bars the overseas reach of the Racketeer Influenced and Corrupt Organizations Act of 1970 — one of the main U.S. laws used to challenge business misconduct. BATCo’s lawyers provided the Court’s clerk the decision reached on August 25,2010 by U.S. District Judge Jed S. Rakoff in New York City in the case of Cedeno, et al., v. Intech Group, et al. (District docket 09-9716).

The filing was made to further support BATCo’s petition for rehearing in British American Tobacco Ltd. v. U.S. (Supreme Court docket 09-980). ”The Justices have not yet acted on the petition.

Judge Rakoff’s ruling, is based on the Supreme Court’s June 24, 2010 decision in Morrison v. National Australia Bank (08-1191). In the Cedeno case, Judge Rakoff concluded that the reasoning of Morrison — barring the overseas reach of a U.S. securities fraud law — applies fully to RICO. A Second Circuit Court precedent that ruled the other way, the judge ruled, “is no longer good precedent in light of Morrison.

Judge Rakoff is a RICO expert and the author of the Law Journal Press’s publication, “RICO: Civil and Criminal Law and Strategy.”

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Sat, 28 Aug 2010 05:38:57 GMT

Petitioners purchased a 10,000 square foot parcel in 2000 in a zoning district that prohibits in-ground pools, but allows for above ground pools only on lots of 12,000 square feet or larger. Prior to 2006, the Town had a provision allowing for temporary special exemptions for parcels less than 12,000 square feet for people who had certain medical conditions and needed to erect the above ground pools for physical therapy purposes. This special exception was repealed in 2006, signaling that no swimming pools would be permitted on lots smaller than 12,000 square feet. The petitioners applied for, and were denied, a building permit to construct an above ground pool. They then sought an area variance to allow them to construct the pool on a 10,000 square foot parcel, as well as a rear-yard set-back variance. Both were denied, and the petitioner filed the instant action.

Although the trial court agreed the plaintiffs and ordered the board to grant the variances, the appellate court reversed, reinstating the zoning board’s denials. The Court noted that the board properly applied the statutory balancing test, and that its conclusions were neither arbitrary nor capricious and had a rational basis. Specifically, the Court noted that evidence supported the board’s conclusion that granting of the requested variances would produce an undesirable change in the character neighborhood and would be detrimental to nearby properties, and that the hardship was self-created. The Court mentioned that the ZBA considered evidence that there were no swimming pools on substandard lots within 500 feet of the petitioner’s property, and that in the community of approximately 300 homes, only two permanent above ground pools were granted by variance rather than by temporary special exception. Further, the Court noted that the two variances that had previously been granted did not constitute precedent from which the ZBA was required to explain a departure since the petitioners failed to show that their case bore sufficient factual similarity. Lastly, the court rejected the petitioner’s argument that the proposed swimming pool would have no greater impact than a swimming pool on a standard lot since this argument would render meaningless the Town’s legislative decision to limit above ground pools as of right to lots not less than 12,000 square feet.

Kaiser v Town of Islip, 74 A.D. 3d 1203, 904 N.Y.S.2d 166 (2 Dept. 6/22/2010).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27939.pdf

Filed under: Current Caselaw - New York, Variances

Living by the Rule of Law

Fri, 27 Aug 2010 16:46:14 GMT

In a Northern Nevada Business Weekly article, local elected officials attacked the notion that mining is of “paramount interest”, allowing private corporations to exercise the right of eminent domain.

The rule of law is one in which a statutory provision, so long as it is in the State constitutional parameters, will be upheld as valid. The legislators have a right in considering changing the statute in order to avoid the opportunity for mining companies to simply come in and acquire property. Yet, one has to wonder whether the State constitution used unregulated activities, even of “paramount interest” as activities which may allow for the use of eminent domain. Clearly, our society seems to be bent on opposing regulations. Yet, when it comes to the use of the power of eminent domain by private entities, regulation may be the only protection!

Northern Nevada Business Weekly

While a subsequent court hearing before Elko District Court Judge Andrew Puccinelli resulted in a settlement agreement between the two parties, several Nevada officials voiced surprise that a little-known provision in the 1875 law governing mining companies was used. Among them were Assemblywoman Sheila Leslie and former state archivist Guy Rocha, who was quoted as saying, “Why this law is still on the books is questionable.”

Leslie, a Democrat from Reno who is running for the State Senate, said she will introduce legislation in the next session to eliminate the provision that says mining is of “paramount interest” to the state and therefore the power of eminent domain may be used by private mining company.

Several people familiar with the case suggested Fronteer likely used the antiquated provision of the 1875 mining law to reboot negotiations. One was Alan Coyner, administrator of the Nevada Division of Minerals. “The eminent domain portion of that law has probably outlived its usefulness,” he says. “I don’t think too many mining companies would disagree with her (Sheila Leslie) on that.”

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