Sunday, November 10, 2013

The Neighbors Issue

Neighbors. Can't live with 'em  - especially when they tear up the land.


As an agent, I've had my share of issues with both neighbors and water lately, so a recent decision of the Pennsylvania Commonwealth Court piqued my interest: Lake v. The Hankin Group, et al.

The Court held that if you live adjacent to a housing plan or other neighbor that causes stormwater runoff to damage and pollute your property with sediment due to construction, it is a continuing nuisance if it can't be reasonably predicted.

Beginning in 2003, after multiple breaches of a dammed pond, the homeowner in this case began to notice that with heavy rains, water from the housing plan next door would top the driveway they shared with other neighbors, and bring sediment with it.

The problem became worse; a channel where the water coursed down became choked with sediment, the water became chocolaty brown (I don't even want to think about that) and it tore up asphalt from the shared driveway.

The homeowners contacted the owner of the housing plan and the township following breaches of the Cairns Pond dam where the plan's stormwater collected, without success. It was only after sending Notice of Intent to Sue under the Pa. Clean Streams Law, Storm Water Management Act and federal Clean Water Act that the Department of Environmental Protection approved an action plan.

The housing plan's owners implemented the plan, and in November 2008, they declared the issue resolved.

Or was it?

The work only slowed the stormwater problem. It reduced the number of incidents to two in three years. However, it still required monitoring and shoveling out sediment from the channel. The homeowners could not predict when these incidents would occur. So they sued the current and former owners of the plan and the engineer that designed the plan.

The trial court threw out the complaint as being time-barred. There must have been procedural or discovery issues, because the homeowners filed their original complaint in 2009, and a second amended complaint adding the former owner of the housing plan in 2012.

Regardless, the trial court said the entire complaint was time-barred based on any of the two-, five- or six-year statutes of limitations in the Clean Streams Act because it was a permanent trespass instead of a continuing one.

The Commonwealth Court disagreed and ruled in favor of the homeowners. Judge Covey wrote: "Notwithstanding that there have been sediment deposits and some physical damage to the Driveway has occurred, the Lakes also complain of the ongoing potential safety concerns as well as damage caused by continuing, periodic intrusion of the large amounts of water onto their property, along with the additional sediment deposits."

With a continuing trespass, each new violation sets the clock running again, and the homeowners' lawsuits would have been timely.

The Court also held that the homeowners' neighbors, who owned the driveway in question, and over whose land the sediment-laden water flowed before it reached the driveway, were not "indispensable parties" to the suit and did not have to be included as plaintiffs.

Likewise, the Court ruled that the original owner of the plan and the engineer were proper parties to the suit, even though they had no ownership rights in the plan. The Court reasoned that since these parties dug the pond and built the dam, they were still liable.

 

Sunday, July 7, 2013

Recent Decisions & A Recipe

Zoning Boards Must Make Applicant Aware of Decision Date


Landowners must be made aware of the mailing date of a zoning board's decision and given instructions for appeal, according to a June 7, 2013, decision of the Pennsylvania Commonwealth Court.

Schmader v. Cranberry Township Board of Supervisors arose out of a landowner's alleged operation of a business in a residential district. He received zoning enforcement orders, and appealed.

The township Zoning Board of Appeals turned him down on March 30, 2012, following a hearing. The landowner did not receive the decision until April 3, 2012, without any notice of the mailing date or the start of the appeal period.

The landowner filed an appeal to the Butler County Common Pleas Court on May 2, 2012, outside the 30 days set by state law to file an appeal, but timely if one measures that time period by the date of receipt of the decision.

The township and Zoning Board of Appeals filed motions to quash the appeal as untimely under the Pennsylvania Municipalities Planning Code (MPC) and Judicial Code. The court granted the motions and quashed the appeal, stating the landowner failed to argue he suffered "an unconstitutional deprivation of due process," a requirement under Sec. 1002-A(a) of the MPC. This section also sets forth the 30-day appeal period.

The landowner appeal to the Commonwealth Court, arguing that it would be unfair for him to "guess" the mailing date, inasmuch as the notice of decision didn't contain one.


The Commonwealth Court reversed and remanded the case to Common Pleas Court for that very reason, citing a number of other cases where local government officials didn't put the mailing date, or any other date giving the applicant guidance as to appeal, on the letter.

Zoning boards cannot rely on a postmark in these cases, nor can they rely on the "unconstitutional deprivation of due process" language in the MPC. Landowners do not have to argue this before the common pleas court. The failure to provide a date certain is enough.

Veggie Burgers that Hold Together on the Grill!

 OK, here (after much trial and error) is a recipe for veggie burgers that will hold together on the grill:

1 cup dry brown lentils, cooked with veggie stock
8 oz. dry pasta, overcooked
2 cups quick cooking oatmeal
2 eggs
1 cup cheese shreds
1-1 1/2 cups breadcrumbs
salt
pepper

Mix the cooked lentils, pasta and quick cooking oatmeal. Let the lentils and pasta cool before adding the eggs and cheese. Mix in breadcrumbs, add salt and pepper to taste. I use garlic salt. This mixture will be extremely sticky, but that is the point. These won't crumble and fall through the grates. Form patties and cook.

Sunday, June 2, 2013

Real estate agents are always advised to leave the legal opinions to the lawyers, and with good reason. But as an agent, I often feel the need to explain to real estate clients the need for a title search, or title insurance. Here's why these expenses in the home buying process are necessary:

A 100-year-old deed can and does affect title and land you in court.

In the feeding frenzy over the Marcellus Shale, these old deeds containing archaic "mineral rights" language have been popping up in the chain of title. In Pennsylvania, we have been sticking straws in the ground for over 125 years. The shale traps pockets of gas which drillers have learned to extract by horizontal drilling and hydraulic fracturing ("fracking"). But anyone with a few acres of land in Pennsylvania or a copy of Gasland knows this.

The Marcellus Shale and what I'm sure were many thousands of dollars in royalties were at stake recently in an important case before the Pennsylvania Supreme Court: Butler v. Powers Estate. In Butler, the court upheld the "Dunham Rule," which states that a reservation of "mineral rights" in a deed does not include gas or oil.

Agents, if a buyer or seller hands you an old deed to a gaseous property and asks you what it means, do you pass it off to counsel? Yes, but knowing about the Butler decision will at least help you give your client an answer, which might mean the difference between getting the listing or the sale, or not.

Just remember, a reservation of "mineral rights," by itself, does not include oil and/or gas. Look for specific language in a deed specifically reserving (or transferring) "oil" or "gas" rights.

In court, you can rebut the Dunham Rule by evidence that the parties to the original transaction intended to include oil and gas when they said "mineral rights." However, very few no people who owned land in the late 1800s are still alive. It's hard to prove intent, even harder to prove what it was 125 years ago.

The landowners in Butler purchased their 244-acre Susquehanna County farm from a seller who acquired it in 1881 from Charles Powers, who reserved for himself and his heirs the rights to "One-half the minerals and Petroleum Oils ... the buildings, water courses, ways, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances, ..."

The Butlers filed a quiet title action to lift this cloud on title. After an exhaustive search for heirs of Charles Powers, the trial court found two, named defendants in the case. The trial court ruled in favor of the Butlers, essentially giving them title to all the Marcellus shale gas. The Pa. Superior Court reversed, however, based on a 1983 Pa. Supreme Court decision involving coalbed gas, United States Steel Corp. v. Hoge. Without getting too technical, the Court in Hoge ruled that, since the gas was trapped in the coal, the owner of the coal owned the gas.

Sounds like Marcellus shale to me.

But writing for the Court in Butler, Justice Baer ruled that the Dunham rule still has vitality:


"The Dunham Rule is clear ... that the common, layperson understanding of what is and is not a mineral is the only acceptable construction of a private deed. Notwithstanding different interpretations proffered by other jurisdictions, the rule in Pennsylvania is that natural gas and oil simply are not minerals because they are not of a metallic nature, as the common person would understand minerals."

The Pa. Supreme Court thus reversed the Superior Court and gave the Dunham Rule, based on an 1882 case, new life.


Sunday, March 3, 2013

Random Notes

The blogger's best friend, a "random notes" column:

1. I have just started the Game of Thrones series of books, on the recommendation of Mrs. VegLaw. I know -- plot, right? -- but watching a few episodes of the HBO series helps in identifying characters in the early pages of Book the First.

2. Just Listed: 210 Briaridge Drive in Wilkins Twp. $137,900.


3. Taking broker's prep classes at CBHQ. Eligibility for the broker's license in Pa. is on a points system. To take the test, a candidate needs to amass 200 points, 1 point per listing, 5 per sale, and on and on. Candidates are urged to "chart" their sales and listing activity contemporaneously, not extemporaneously.

4. The Pa. Supreme Court (SCOPA) recently ruled that a pulpwood company’s sale of its Delaware land constitutes taxable business income in the state. Glatfelter Pulpwood v. Commonwealth, Board of Finance and Revenue.

To be continued ...






Sunday, December 30, 2012

Pa. Supreme Court Declines Business Privilege Tax in Shelly Funeral Home

Pa. Supreme Court Declines Business Privilege Tax in Shelly Funeral Home

By Charles McWittig

Pennsylvania local governments looking to tax "big business" to keep out of the red will have to look elsewhere.

The state Supreme Court, in an opinion released a week before Christmas, played Grinch to local pols by declining a business privilege tax in Shelly Funeral Home v. Warrington Township. The $2,600 annual business privilege tax in this case applied to all businesses in the township with gross receipts over $1,000,000, and exempted from liability all businesses with gross receipts of $1,000,000 or less.

The township imposed the tax in 2009 in order to close a $400,000 budget deficit. The feds would have laughed off this amount as a tip in Vegas on a slow Wednesday night, but for local governments that actually provide services, it means something will go undone.

Shelly Funeral Home and 27 other Warrington Township businesses challenged the tax on the basis that it violated violated Section 533(a) of the Local Tax Reform Act, which prohibits political subdivisions from taxes "on gross receipts or part thereof."

The township defended the tax on the basis it was a flat tax, which would have been legal. The township, however, refused to impose a flat tax because it would have impacted smaller businesses disproportionately. The $1 million threshold was not arbitrary, but rather the result of a study by the township prior to enacting the tax.

The court decided that a flat tax based on a threshold amount amounts to a tax "on gross receipts or part thereof," proving once again that these things come down to the tiniest words.

The Court did not address all similar business privilege taxes. Ironically, a business privilege  tax "subject to a very modest gross-earnings threshold predicated on a business’s ability to pay the tax" may have passed the smell test. But since the township went to the trouble of figuring out exactly how much it would need to close its budget deficit, and set the bar at an amount that pinched "big box" retailers and others so called big businesses, it didn't.

Saturday, August 18, 2012

Bank of America Short Sale - The Nightmare Continues

You can't help but wonder, after an experience like this, where the housing market is headed.

An underwater client who doesn't want to move from her house. Buyers who do want to move, into client's house. A Bank of America mortgage. Two junior mortgages totalling about $60,000. A rock wall 20 feet from the exterior rear - it looks like it's sprouting trees frozen in mid-fall, poised to crush the roof. This fact alone kept buyers looking elsewhere for the better part of two years, during which time client made not one single payment to our friends at BoA. Not only is the buyer who found this attractive a cop, he and his wife are also readers, bane of the selling agent's existence.

A parade of potential buyers trekked through the house during the active listing period. Client's possession of a Rottweiler - a charge bestowed upon her by a feckless employee of the restaurant in which she works - required that someone be present to give selling agents access. Usually, that was the listing agent, driving across town some 45 minutes. Bank of America offered client an expedited, cooperative short sale which has turned out to be neither. 

I could go into the litany of documents and e-mails (45 of the latter) that went to and fro in this monumental cluster f*** of a deal, but I won't. Every e-mail demanded a document or presented some impossible deadline. The early days of the journey down the rabbit hole that is BoA's Equator collection system were mired in repeated requests for "listing documents," all of which Equator already possessed. Neither buyer nor seller have "scan and send" capabilities, so every request resulted in in-person visits on both sides.

Finally, the parties put the house under agreement and agreed on what to do about the inspections, nothing out of the ordinary for R.E. Then BofA proceeded to sit on the deal for FOUR MONTHS!

Needless to say, the buyers, who had closed on the sale of their home after their own (brief) delay, got antsy. And at least one of them is licensed to carry a firearm.

During the four month waiting period, BofA brought out some serious Orwellian hardware, in the form of requests for documents that didn't exist and had to be created out of thin air (necessitating more trips back and forth), multiple requests, weeks apart, for the same document, outright lies, and, ultimately, rejection of the deal. The reason: requested listing document not provided within 14 days. Upon follow up, BofA could not identify this document, nor could they inform anybody as to when the 14 days started to run, if this was indeed a deadline.

After frantic pleas for assistance and information by their agent, the buyers walked. Not surprisingly.

If this debacle is typical of today's short sale, underwater homeowners would seriously be better off (as an agent it pains me to write this) staying put, and waiting for foreclosure. Which may not come. But if it does, under Pennsylvania law the borrower can stay in the house for 18 months. That does not include the time she buys fighting the robo-signature. Bonus!

Alternately, walking away from the house makes good sense, if the borrower can afford to do this. I would not advocate a deed in lieu of foreclosure, since, again, you would have to deal with our friends at Bank of America.

Sunday, February 6, 2011

So Is It OK To Eat at Taco Bell?

Taco Bell has long been a staple of the vegetarian who craves fast food. The Yum! Brands chain has at least two burritos that I'm aware of (7 Layer and Cheesy Bean and Rice) that are veg-friendly, and surprisingly edible. Now, however, Taco Bell must fight a class action lawsuit alleging that what it calls beef does not contain enough cow to live up to the name.

Like all good corporations, Taco Bell immediately went to the mattresses, firing a PR broadside with its lounge act commercial promising "four times the steak" in a new product. It's an entertaining commercial, and it should be viewed as nothing less than the chain's attempt to win the battle in the courtroom of public opinion.

I don't eat meat, so it will not affect me or any other vegetarian if Taco Bell is forced by judicial fiat to up its beef content; however, this lawsuit really is an attack on all fast food joints. If Taco Bell's meat doesn't have enough meat, what does that say about McDonald's, Burger King, Wendy's, even In-and-Out Burger? Is a Mickey D's double cheeseburger mostly filler? How about a Burger King chicken sandwich? A Wendy's triple? A BK Quad Stacker?

In Fast Food Nation, Eric Schlosser deconstructs the American fast food burger to its chopped and processed inception. He demonstrates that the flavor and aroma that carnivores crave can be produced by a chemist. The plaintiffs in the Taco Bell lawsuit do not seek monetary damages (good thing, since they wouldn't be entitled to any in any scenario short of actual poisoning), they merely seek a court order that the chain employ truth in advertising. I doubt a huge chain like Yum! will cave on this issue.

I don't know. The lounge act commercial just wouldn't have the same ring if the lyrics were "four times the meatlike substance stretched with soy filler," as much as I love meatless soy crumbles. We shall see. It should be an interesting trial, with flavorists and meat-makers from both sides testifying at length about what compromises fast food meat. This can only have a positive impact on our health as U.S. consumers.


MORE MOVIES

I promised a list of my favorite movies, and here are ten more that have stuck with me:


11. Silence of the Lambs – Chilling screen adaptation of the Thomas Harris novel which I never read, this film spurred me to read and then watch both “Hannibal” and “Red Dragon.”. So memorable it actually spawned a sequel and two prequels (the second was “Hannibal Rising”). Starring Anthony Hopkins as a jailed, cannibalistic serial killer and Jodie Foster as the FBI trainee charged with interviewing him.
                                             
12. Fight Club – An insomniac white collar yuppie, fed up with materialism and hypocrisy in post modern America, meets a free spirit on a plane and the two form an underground, bare-knuckle boxing club. And then it gets weird. Directed by David Fincher. Starring Edward Norton and Brad Pitt.

13. Boogie Nights – Paul Thomas Anderson’s film about the Southern California porn industry in the late 1970s and early 1980s. Anderson has not made a better film yet and that includes “Magnolia” and “There Will Be Blood.” Starring Mark Wahlberg, Julianne Moore, Burt Reynolds, Heather Graham, John C. Reilly.

14. Citizen Kane – Generally cited as the greatest film of all time. Even the DVD bonus feature about the making of “Kane” is fascinating. Orson Welles’ documentary-style chronicle about the life of Charles Foster Kane, a thinly-veiled William Randolph Hearst. Film has since been universally praised, but it caused the downfall of Welles, who portrays Kane, when the real-life Hearst trashes him.

15. A Clockwork Orange – Stanley Kubrick’s masterpiece about youth gangs was far ahead of its’ time in its’ portrayal of ultraviolence. The gang leader (in the book he is 15 years old) is arrested for murder and then reprogrammed by the state. The iconic image of Alex brandishing a knife is instantly recognizable to this day.

16. Pulp Fiction – Quentin Tarantino’s collection of narrative-bending, interconnected crime stories. Starring John Travolta, Samuel L. Jackson, Uma Thurman.

17. Miller’s Crossing – Underrated Coen Brothers film about Prohibition era gang bosses warring over turf, and the men who whisper in their ears. This is a great film with many trademark Coen quirks. Starring Gabriel Byrne and Marcia Gay Harden.

18. Love and Death – The best and funniest Woody Allen film. A Russian poet and his wife (played by Diane Keaton) try to assassinate Napoleon. Based on War and Peace but also invoking Spinoza, Bergman and T.S. Eliot, among others.

19. Pan’s Labyrinth – Guillermo del Toro’s brilliant film is half-fantasy, half hard reality. During the Spanish Civil War, a young girl pursues an active but dangerous fantasy life as her stepfather, a tyrannical army captain, kills rebels and tries to protect his unborn son, at the risk of everything else.
 
20. Raging Bull – Martin Scorsese’s film about the life of boxer Jake LaMotta, a world class OCD. Starring Robert DeNiro and Joe Pesci.