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DIRECTORY AND CAPABILITIES

Is the Issuance of a City Use Permit Referable? Not When It Is an Administrative Act

January 10, 2018 — Adam E. Lang - Real Estate Litigation Blog
Arizona’s Constitution gives electors in cities, towns, and counties the ability to refer legislation that was enacted by their local elected officials to the ballot for popular vote. Ariz. Const. art. IV, Pt. 1 § 1(8). But only legislative acts are referable; administrative acts are not. In general, a legislative act makes new law and creates policy, is permanent in nature, and is generally applied. On the other hand, an administrative act is one that executes and implements a law already in place. Wennerstrom v. City of Mesa, 169 Ariz. 485, 489-90, 821 P.2d 146, 150-51 (1991). For more than fifty years, Arizona courts have been clear: zoning and rezoning ordinances are legislative acts and therefore referable to popular vote. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 609 (1961) (holding that “what constitutes an appropriate zone is primarily for the legislature”); Fritz v. City of Kingman, 191 Ariz 432, 432, 957 P.2d 337, 337 (1998) (noting “we reaffirm our view that zoning decisions are legislative matters subject to referendum”); Pioneer Trust Co. of Arizona v. Pima Cty., 168 Ariz. 61, 64–65, 811 P.2d 22, 25–26 (1991) (holding “that, in Arizona, zoning decisions are legislative acts subject to referendum” and that even a “conditional approval of . . . rezoning was a legislative act”); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 653 P.2d 694 (1982) (analyzing whether zoning referendum complied with statutory requirements); Wait v. City of Scottsdale, 127 Ariz. 107, 108, 618 P.2d 601, 602 (1980) (noting “that the enactment and amendment of zoning ordinances constitute legislative action”); City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) (“The matter of zoning is appropriately one for the legislative branch of government.”); Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Sup’rs, 108 Ariz. 449, 452, 501 P.2d 391, 394 (1972) (denying an attempt to enjoin referendum on county’s zoning decision). Read the court decision
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Reprinted courtesy of Adam E. Lang, Snell & Wilmer
Mr. Lang may be contacted at alang@swlaw.com

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The 2023 Term of the Supreme Court: Administrative and Regulatory Law Rulings

December 03, 2024 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
It is instructive to review the Supreme Court’s record in its most recent term, concentrating on regulatory and administrative law cases, which are usually back-burner issues. But not this term. The Supreme Court began the current term on October 7, 2024. The Court has already chosen many cases to review in the new term, and it promises to be as interesting as the 2023 term, which produced several significant rulings affecting regulatory and administrative law, chiefly the Loper Bright Enterprises ruling. Loper Bright overturned the Court’s landmark administrative law ruling of Chevron, USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Background to Loper Bright In 1984, the Supreme Court decided Chevron USA, Inc. v. National Resource Defense Council. (See 467 U.S. 839 (1984).) The unanimous decision, written by Justice Stevens, reversed then-D.C. Circuit Judge Ruth Bader Ginsburg’s ruling that set aside EPA’s Clean Air Act “bubble policy,” which was intended to provide regulatory relief from certain EPA permitting requirements. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Ohio “property damage” caused by an “occurrence.”

May 18, 2011 — CDCoverage.com

In JTO, Inc. v. State Automobile Mut. Ins. Co., No. 2010-L-062 (Ohio Ct. App. March 25, 2011), general contractor JTO was sued by hotel project owner Marriott for breach of contract and warranties seeking damages for the repair of construction defects resulting in moisture penetration property damage to interior components. JTO filed a third party complaint against subcontractor Farizel and also tendered its defense as an additional insured under Farizel’s State Auto CGL policy.



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Reprinted courtesy of CDCoverage.com



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Census Bureau, HUD Show Declines in Residential Construction



May 17, 2011 – CDJ Staff



The U.S. Census Bureau and the Department of Housing and Urban Development released their summary of residential construction for April 2011 on May 17.



Building permits for privately owned housing units were down 4% from last month and 12% from last year. Similarly, privately-owned housing starts were down 10% from March and 23% below the previous year.



For further details, read the Census Bureau/HUD report

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Massachusetts SJC Clarifies “Strict Compliance” Standard in Construction Contracts

January 02, 2019 — Jacob Goodelman - Gordon & Rees Construction Law Blog
In Massachusetts, it is well established that a contractor cannot recover damages from a construction contract without first showing that the contractor completely and strictly performed on all of the contract’s terms. Recently, the Massachusetts Supreme Judicial Court narrowed the rule by concluding that complete and strict performance is only required for contract terms relating to the design and construction itself. The high Court explained that non-design / non-construction contract terms are governing by “ordinary contract principles, including the traditional Massachusetts materiality rule.” Read the court decision
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Reprinted courtesy of Jacob Goodelman, Gordon Rees Scully Mansukhani
Mr. Goodelman may be contacted at jgoodelman@grsm.com

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It’s Time to Change the Way You Think About Case Complexity

August 07, 2018 — Ben Patrick - Gordon & Rees Construction Law Blog
There are few things that lawyers love more than telling war stories. Partially, that’s because many lawyers either only or primarily have friends who are lawyers, and war stories are a way for lawyers to relate to each other—your barber doesn’t understand the pain of reading through 5 paragraphs of irrelevant objections posed to each of 75 interrogatories, but your fellow lawyers will. One common feature of war stories is a note regarding how much was at issue in the case. “I was handling this $25 million claim once….” Lawyers include the dollar figure in dispute as a shorthand for the complexity of the case they’re talking about. “Oh, we’ll be in depositions for a month solid, this is a $10 million case!” I don’t know where I picked up this habit, but I know exactly how I learned to rethink it. A friend of mine, as in-house counsel, was handling a case worth over a billion dollars. When he told me about it, my jaw dropped. One of the first things I asked him was, how do you manage a case that big? And he told me about the several law firms he had engaged, all the people working on it. But then he said: it’s not really a complicated case. There were only 4-5 real factual questions, and a similar number of legal ones. It’s just that every factual question had a very high price tag associated with it. The high price tag doesn’t make the factual question any more complex, or any harder to litigate. For example, your builders’ risk policy either has coverage for flood damage or it doesn’t. If it does, then it doesn’t matter whether the flood washed the whole building away or just some materials from the laydown area—coverage is coverage, irrespective of quantum. Read the court decision
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Reprinted courtesy of Ben Patrick, Gordon & Rees Scully Mansukhani
Mr. Patrick may be contacted at jpatrick@grsm.com

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Lending Plunges to 17-Year Low as Rates Curtail Borrowing

April 15, 2014 — Kathleen M. Howley, Zachary Tracer and Heather Perlberg – Bloomberg
Wells Fargo (WFC) & Co. and JPMorgan Chase & Co., the two largest U.S. mortgage lenders, reported a first-quarter plunge in loan volumes that’s part of an industry-wide drop off. Lenders made $226 billion of mortgages in the period, the smallest quarterly amount since 1997 and less than one-third of the 2006 average, according to the Mortgage Bankers Association in Washington. Lending has been tumbling since mid-2013 when mortgage rates jumped about a percentage point after the Federal Reserve said it might taper stimulus spending. A surge in all-cash purchases to more than 40 percent has kept housing prices rising, squeezing more Americans out of the market. That will help push lending down further this year, according to the association. Ms. Howley may be contacted at kmhowley@bloomberg.net; Mr. Tracer may be contacted at ztracer1@bloomberg.net; Ms. Perlberg may be contacted at hperlberg@bloomberg.net Read the court decision
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Reprinted courtesy of Kathleen M. Howley, Zachary Tracer and Heather Perlberg, Bloomberg

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Legislative Update – The CSLB’s Study Under SB465

March 22, 2018 — John Castro - Construction Law Blog
Following the tragic Berkeley balcony collapse in 2015, the Legislature enacted California Senate Bill 465 which commissioned the Contractors State License Board (“CSLB” or “Board”) to perform a study regarding the efficacy of having contractors report settlements to the Board. In December 2017 the CSLB released their findings in a report. The ultimate conclusion of the report is to recommend to the Legislature that the ability of the CSLB to protect the public “would be enhanced by regulations requiring licensees to report judgments, arbitration awards, or settlement payments of construction defect claims for rental residential units.” Senator Jerry Hill authored SB465, and his office is presently now drafting legislation on settlement reporting based in part on this study. The most troubling concern about the study is transparency. The report references nine exhibits, all of which have been withheld from publication under purposes of confidentiality. Therefore, much of the CSLB’s study must be taken at face value because much of the data they rely on to formulate their conclusions cannot be independently verified. One of the factors that the CSLB undertook in its study was to determine criteria for when a settlement was “nuisance value,” and therefore less important for reporting purposes. The CSLB acknowledged there was no industry-wide definition for “nuisance value,” whether it be in the insurance industry, construction industry, or otherwise. Insurer survey respondents reached a general consensus on aspects of what can constitute a “nuisance value” settlement, including the amount of the settlement and the size of the case. However, the response rate to the insurer survey was only 3.3 percent. In general, the concern with using settlement amount and size of the case as indicative factors is the fact that a large settlement size, for instance, may still constitute a “nuisance value” settlement. One example would be a large settlement figure in a case involving hundreds of homes in multiple subdivisions. Read the court decision
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Reprinted courtesy of John Castro, Gordon Rees Scully Mansukhani LLP
Mr. Castro may be contacted at jcastro@grsm.com

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Excess Insurer On The Hook For Cleanup Costs At Seven Industrial Sites

August 28, 2018 — Lorelie S. Masters & Geoffrey B. Fehling - Hunton Insurance Recovery Blog
A New York district court has held that an insurer must provide coverage under three excess insurance policies issued in 1970 for defense and cleanup costs incurred by Olin Corporation in remediating environmental contamination at seven sites in Connecticut, Washington, Maryland, Illinois, New York, and Washington. Seven of the remaining sites at issue presented questions of fact for trial, with only one site being dismissed due to lack of coverage. Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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