New Case Law Update: Mountain Valleys, Chevron Deference and a Long-Awaited Resolution on the Sacketts’ Small Lot
June 12, 2023 —
Anthony B. Cavender - Gravel2GavelThis is a brief roundup of recent federal court environmental and regulatory law decisions from the federal courts over the past few months, including the much anticipated ruling in Sackett, et ux., v, Environmental Protection Agency.
THE U.S. SUPREME COURT
Sackett, et ux., v, Environmental Protection Agency
Last year, the Supreme Court issued a significant decision curtailing some of the EPA’s regulatory powers in the Clean Air Act in West Virginia v. Environmental Protection Agency. On May 25, 2023, the Court limited EPA’s—and the U.S. Army Corps of Engineers’ authority—under the Clean Water Act. This, too, is a major environmental ruling. The Court held that the EPA could not classify the wetlands located on the Idaho property of Michael and Chantell Sackett as “Waters of the United States” on the basis of the “significant nexus” test devised by Justice Kennedy in his separate opinion in the 2005 case of Rapanos v. United States. Accordingly, the Court unanimously held that their property was not subject to the EPA’s or the U.S. Army Corps of Engineers’ permitting and enforcement power. In 2004, the Sacketts purchased a small lot near Priest Lake in Bonner County, Idaho, on which to build a home. As related by Justice Alito, once they began to fill in their property with dirt and rocks, they were notified by EPA that their backfilling operation violated the Clean Water Act (CWA) because they were affecting protected wetlands. The Sacketts challenged this action, thus beginning a long legal battle with EPA and the federal government. In 2021, the U.S. Court of Appeals for the Ninth Circuit upheld the federal government’s regulatory authority over these wetlands, holding that the CWA covers “adjacent” wetlands having a significant nexus to traditional navigable waters. The Supreme Court decided that this case was suitable for determining whether the Sackett’s wetlands are “waters of the United States” and thus subject to the permitting and regulatory enforcement powers of the EPA and the Corps of Engineers.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Denver’s Mayor Addresses Housing and Modifying Construction Defect Law
July 16, 2014 —
Beverley BevenFlorez-CDJ STAFFDuring his State of the City Address, Mayor Michael Hancock discussed housing, specifically calling “on the state legislature to modify a construction defects law,” according to KWGN news.
“…it is my sincere hope that the 2015 State Legislature will recognize the chilling effect the construction defects law has on the for sale condo market,” Hancock stated, as reported in The Denver Post. “I encourage lawmakers to modify the law so that we can experience the full potential of housing in metro Denver.”
Hancock also claimed that though the population has increased, the “housing stock has not kept pace,” according to KWGN. “This gap is exacerbated by rising home prices, which are good news for homeowners and our local economy, but a challenge for many residents and families.”
Read the full story, KWGN...
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Idaho Construction Executive Found Guilty of Fraud and Tax Evasion
October 01, 2013 —
CDJ STAFFA former president of the Associated General Contractors in Idaho has been found guilty of attempting to defraud the U.S. Government. Elaine Martin filed false income taxes, allowing her to participate in a program that helped economically and socially disadvantaged businesses. Ms. Martin has convicted on both the fraud tax evasion charges.
Ms. Martin’s business partner, Darrell Swigert, has also been convicted. He was found guilty of obstruction of justice. Mr. Swigert helped Ms. Martin conceal the extent of her income.
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Courts Are Ordering Remote Depositions as the COVID-19 Pandemic Continues
August 10, 2020 —
Victor J. Zarrilli, Robert G. Devine & Douglas M. Weck - White and WilliamsThe COVID-19 pandemic has generally put a stop to in-person depositions nationwide. Many litigants and their attorneys have also resisted attempts to proceed with remote video depositions, some holding out for the pandemic to subside and for the return of in-person business as usual while others are resistant to using new or unfamiliar virtual video technology. However, with COVID-19 cases still increasing nationwide, courts are beginning to mandate that depositions proceed remotely regardless of these apprehensions. It looks like remote video depositions may become part of a new set of best practices and perhaps mandatory in some circumstances for the foreseeable future.
The Supreme Court of New Jersey, for example, has ordered that “[t]o the extent practicable . . . depositions should continue to be conducted remotely using necessary and available video technology.” The court has not explicitly mandated remote depositions, but has certainly encouraged trial courts to do so, indicating in orders litigants are “strongly encouraged” to depose witnesses remotely. Other jurisdictions, such as Philadelphia’s First Judicial District, have given trial court’s similar authority and flexibility.
Recently, a trial court in Middlesex County, New Jersey granted a motion to compel a defense deposition of the plaintiff to proceed remotely, if not in person, over the objection of plaintiff’s counsel in a slip-and-fall case. This is one of the first such rulings in this area. The plaintiff’s counsel objected to the remote deposition on the grounds that his client was elderly with a heavy accent, had no technology knowledge, and had no internet access. That would seem to be a pretty good argument that a remote deposition would be impracticable. However, the defendant bolstered their case with an offer to cover the cost of renting and delivering a remote deposition technology package to the plaintiff, complete with a tablet, phone, speaker, internet hotspot and remote training beforehand. Although the trial court acknowledged the plaintiff’s “significant hardship,” the court ordered that the deposition proceed remotely if not in person.
Reprinted courtesy of White and Williams attorneys
Robert Devine,
Douglas Weck and
Victor Zarrilli
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com
Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com
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District Court Awards Summary Judgment to Insurance Firm in Framing Case
August 04, 2011 —
CDJ STAFFIn the case of Continental Western Insurance Company v. Shay Construction Inc., Judge Walker Miller has granted a summary judgment against Shay Construction and their co-defendant, Milender White Construction Company.
Shay was the framing subcontractor for Milender White on what the court described as “a major construction project in Grand County, Colorado.” Two of Shay’s subcontractors, Wood Source Inc. and Chase Lumber Company furnished materials, labor, and equipment to Shay. They subsequently sued for nonpayment and sought to enforce mechanic’s liens, naming both Shay and Milender as defendants. Milender White alleged that Shay had “breached its obligation under its subcontracts with Milender White.”
Shay’s insurance provider, Continental Western, stated that its coverage did not include “the dispute between Shay, its subcontractors, particularly the cross claims asserted by Milender White.” Shay then sued Continental Western, alleging breach of contract and statutory bad faith.
The court, however, has found with Continental Western and has granted them a summary judgment. They found “no genuine issue as to any material fact.” The judge did not side with Continental Western on their interpretation of the phrase “those sums that the insured becomes legally obligated to pay as damages.” The court found that the Colorado courts have not limited this to tort actions only. However, as Milender’s cross claim included claims of faulty workmanship on the part of Shay, Judge Miller found for Continental.
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Proposed Law Protecting Tenants Amended: AB 828 Updated
June 08, 2020 —
Rhonda Kreger – Newmeyer DillionOn May 18, 2020, AB 828 was amended and is currently on its second reading in the Senate Rules Committee. This legislation proposes a temporary moratorium on foreclosures and unlawful detainers while Governor Newsom's COVID-19 emergency order is in effect. In addition to the moratorium, AB 828 also required landlords to reduce rent by 25% under certain circumstances. AB 828 was amended to remove the provision that required landlords to reduce rent by 25% for 12 months. The new provision requires landlords to allow tenant to remain in possession, and requires tenants to start paying rent the month following the end of the emergency order. Tenants must timely pay monthly rent plus 10% of any rent due and owing when the emergency order ended.
Under AB 828, a tenant may stipulate to the entry of an order in response to a residential unlawful detainer action filed by the landlord. Upon a hearing, the court determines if the tenant's inability to pay rent is the result of increased expenses or a reduction in income due to COVID-19. The court must also make a determination that there is no material economic hardship for the landlord. Upon making such determinations, the court will issue an order that permits the tenant to remain in possession, and requires tenant to commence rental payments the month following the end of the COVID-19 emergency order. Tenant's payment would include the monthly rent plus 10% of an unpaid rent during the COVID-19 emergency order, but excludes any late charges or other fees or charges. The tenant would be required to make timely payments, and if tenant fails to do so, after a 48 hour notice from landlord, the landlord can file for an immediate writ of possession in favor of the landlord and money judgment for any unpaid balance, court costs and attorneys' fees.
Newmeyer Dillion continues to follow COVID-19 and its impact on your business and our communities. Feel free to reach out to us at NDcovid19response@ndlf.com or visit us at www.newmeyerdillion.com/covid-19-multidisciplinary-task-force/.
Rhonda Kreger is Senior Counsel on Newmeyer Dillion's transactional team at our Newport Beach office. Her practice focuses on all aspects of commercial real estate law, with a particular emphasis on the representation of residential developers, merchant builders and institutional investors. You can reach Rhonda at rhonda.kreger@ndlf.com.
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Builder Exposes 7 Myths regarding Millennials and Housing
January 12, 2015 —
Beverley BevenFlorez-CDJ STAFFBuilder Magazine discussed seven myths regarding Generation Y and housing, and stated whether it was fact or fiction. First, they answered whether “Millennials Carry Historically High Student Debt Levels,” (True), and second they concluded it was true that “Millenials Can’t Afford Down Payment at Today’s Standards.” However, Builder was split on whether “Millennials Will Pay a Premium for Green and Tech Features.”
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Pennsylvania Supreme Court Rules in Builder’s Implied Warranty of Habitability Case
September 03, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to an article in JD Supra Business Advisor (written by Mark S. DePillis, Carl G. Roberts, Benjamin M. Schmidt, and Matthew White of Ballard Spahr LLP), “The Pennsylvania Supreme Court ruled that a builder’s implied warranty of habitability extends only to the initial buyer of a home, and not to subsequent purchasers.” This reversed an earlier ruling in Conway v. The Cutler Group, Inc. “that created more expansive liability for home builders.”
DePillis, Roberts, Schmidt, and White suggested that “builders should monitor possible future legislation addressing the public policy issues that the Supreme Court identified as falling squarely within the legislature’s domain.”
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