At the International Builders' Show it came out that many members invested in a company called Home Ownership Warranty Corporation back in the 80s & 90s. It was a home warranty company that went out business and into receivership some time ago. To make a long story short, the company is going through the liquidation process and many of the original investors are entitled to a return of their capital contributions. The problem is that since so much time has passed, some of the contact information for builders is outdated.
NAHB has created a website to help our builders contact the administrator for HOW Corp and to update their address. There are essentially two links. The background page is available here.
There is another link embedded in the page above which takes you to another page that lays out how to update contact information. There is an April 15 deadline to submit information.
For more details, read the article below:
Twenty-two years after it went into receivership, builders who made capital contributions to the Home Ownership Warranty Corporation companies may be eligible to get some of their money back.
Home Ownership Warranty Insurance Company (HOWIC) was a risk-retention group under the Home Warranty Corporation (HWC). As the parent company, HWC owned all the shares of stock in its operating subsidiaries: HOWIC and the Home Owners Warranty Corporation (HOW), which managed the insurance operations. The three companies are collectively referred to as the HOW Companies.
In 1994, the HOW Companies were placed into receivership. The receiver has now moved forward with plans to liquidate the company and is preparing to distribute payments to former HOW builders with previously approved claims for capital contributions (in legal terms known as eligible Builders).
As part of the liquidation process, the receiver set a deadline of Jan. 12, 2009 by which all claims against the HOW Companies needed to be filed. Any eligible builder seeking return of capital contributions made to the HOW Companies was required to file a claim by that deadline, and many National Association of Home Builders members did so.
After the receiver returns capital contributions to eligible builders, the receiver, as a final step, will distribute residual assets to builders who were insured under unexpired HOWIC insurance policies as of Oct. 14, 1994 (in legal terms known as builder distributees). However, builder distributees do not need to submit claims for their share of the residual assets of the companies.
As a service to the Home Builders Association membership, staff is looking at ways to ensure that the receiver has the up-to-date contact information for all eligible builders and builder distributees, and has posted the relevant contact information on file with receivership staff.
If you are an eligible builder or builder distributee, please read the directions and additional information on this web page.
The Home Builders Association of Greenville are your neighbors and community leaders providing education and support for building industry professionals. We create jobs, encourage homeownership, and promote responsible growth throughout the upstate of South Carolina.
Showing posts with label legal. Show all posts
Showing posts with label legal. Show all posts
Tuesday, March 22, 2016
Wednesday, November 20, 2013
Your HBA saved members $$$ with court victories this summer
Watch a report about how your Home Builders Association has saved members tens of thousands of dollars with its efforts in court.
https://www.nahb.org/showpage_details.aspx?sectionID=486&showPageID=21454&recordLogin=1
You must be logged in as a member to watch this report. Need help logging in? Contact your HBA Office at 864-254-0133. Not a member? We invite you to become a member by clicking here.
https://www.nahb.org/showpage_details.aspx?sectionID=486&showPageID=21454&recordLogin=1
You must be logged in as a member to watch this report. Need help logging in? Contact your HBA Office at 864-254-0133. Not a member? We invite you to become a member by clicking here.
HBA Sues EPA on Clean Air Act
Your Home Builders Association is part of an industry coalition against the EPA in a case before the Supreme Court. This time the battle has to do with the Clean Air Act. The EPA has certain preconstruction permitting requirements which are designed to lower carbon dioxide emissions, but as you might expect, have unintended consequences. Click on the link below to watch a report on the lawsuit.
http://www.nahb.org/showpage_details.aspx?showpageID=21685
In 2009-2010, EPA issued four separate regulations in order to regulate greenhouse gas (GHG) emissions from motor vehicles. Even though the Auto Rule ostensibly sets standards for motor vehicles only, EPA has interpreted this regulation to trigger requirements for stationary sources as well. Traditionally, "stationary sources" are limited to large industrial factories and utilities. But, because the Clean Air Act contains a numeric triggering threshold for a pre-construction permit known as the "Prevention of Significant Deterioration" program permit, and because the principal GHG emission, carbon dioxide, is emitted by structures in an amount triggering this threshold, stationary sources in this context would include multifamily structures and even some single family homes. This result would bring most multifamily, mixed use, some single-family home, and potentially even master-planned community development to a halt.
One of the four regulations, known as the Tailoring Rule, raises the statutory thresholds that automatically trigger PSD permitting requirements by relying on judicial doctrines such as "absurd results" and "administrative necessity." While raising the statutory thresholds effectively exempts residential construction from PSD permitting obligations, this purported relief is uncertain and temporary. EPA does not provide a permanent exemption for small sources, only a promise to not regulate until 2016. Finally, EPA's interpretation of its ability to ignore the statutory thresholds represents a dramatic expansion of its authority, which if upheld, would make it extremely difficult for the courts and even Congress to limit EPA's actions.
Your Home Builders Association's partner, the National Association of Home Builders, joined an industry coalition to challenge all four regulations on the grounds that EPA misinterpreted its obligations under the Clean Air Act.
On June 26, 2012, the court issued one opinion deciding all four petitions. The court found that EPA's Endangerment Finding and Auto Rule were valid, and that all parties lacked standing to challenge the Tailoring and Timing rules. The industry coalition to which NAHB belongs filed a petition for rehearing on Aug. 10, 2012, and a divided full court issued its decision on Dec. 20, 2012. While a majority of judges voted to deny the petition, two judges took the unusual step of writing detailed dissents to the petition's denial. One dissent in particular supported the industry coalition's arguments.
On April 18, 2013, NAHB as a member of the industry coalition filed a cert petition with the U.S. Supreme Court. EPA filed its opposition to cert on July 22, 2013, and the coalition filed its reply on Aug. 6, 2013.
On Oct. 15, 2013, the Supreme Court agreed to hear this case on the following issue: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” Briefing will take place through the winter, and oral argument will occur in February 2014. This marks NAHB's second trip to the Supreme Court as a petitioner.
http://www.nahb.org/showpage_details.aspx?showpageID=21685
In 2009-2010, EPA issued four separate regulations in order to regulate greenhouse gas (GHG) emissions from motor vehicles. Even though the Auto Rule ostensibly sets standards for motor vehicles only, EPA has interpreted this regulation to trigger requirements for stationary sources as well. Traditionally, "stationary sources" are limited to large industrial factories and utilities. But, because the Clean Air Act contains a numeric triggering threshold for a pre-construction permit known as the "Prevention of Significant Deterioration" program permit, and because the principal GHG emission, carbon dioxide, is emitted by structures in an amount triggering this threshold, stationary sources in this context would include multifamily structures and even some single family homes. This result would bring most multifamily, mixed use, some single-family home, and potentially even master-planned community development to a halt.
One of the four regulations, known as the Tailoring Rule, raises the statutory thresholds that automatically trigger PSD permitting requirements by relying on judicial doctrines such as "absurd results" and "administrative necessity." While raising the statutory thresholds effectively exempts residential construction from PSD permitting obligations, this purported relief is uncertain and temporary. EPA does not provide a permanent exemption for small sources, only a promise to not regulate until 2016. Finally, EPA's interpretation of its ability to ignore the statutory thresholds represents a dramatic expansion of its authority, which if upheld, would make it extremely difficult for the courts and even Congress to limit EPA's actions.
Your Home Builders Association's partner, the National Association of Home Builders, joined an industry coalition to challenge all four regulations on the grounds that EPA misinterpreted its obligations under the Clean Air Act.
On June 26, 2012, the court issued one opinion deciding all four petitions. The court found that EPA's Endangerment Finding and Auto Rule were valid, and that all parties lacked standing to challenge the Tailoring and Timing rules. The industry coalition to which NAHB belongs filed a petition for rehearing on Aug. 10, 2012, and a divided full court issued its decision on Dec. 20, 2012. While a majority of judges voted to deny the petition, two judges took the unusual step of writing detailed dissents to the petition's denial. One dissent in particular supported the industry coalition's arguments.
On April 18, 2013, NAHB as a member of the industry coalition filed a cert petition with the U.S. Supreme Court. EPA filed its opposition to cert on July 22, 2013, and the coalition filed its reply on Aug. 6, 2013.
On Oct. 15, 2013, the Supreme Court agreed to hear this case on the following issue: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” Briefing will take place through the winter, and oral argument will occur in February 2014. This marks NAHB's second trip to the Supreme Court as a petitioner.
Wednesday, June 26, 2013
NAHB scores legal victory for member's property rights
June 25, 2013—Supreme Court Decision in KOONTZ v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT
For years, local governments have pursued arrangements with developers to extract certain concessions in exchange for the opportunity to develop. For example, a locality may ask a developer to improve the street in anticipation of the increased traffic that a development may bring. In some cases, this is a fair request. However, some local governments seem all too willing to stretch the boundaries to the limit.
In a victory for HBA members and property rights advocates, the U.S. Supreme Court on June 25 issued an opinion that directly affects the law that applies to such conditions, called “exactions”. The case is Koontz v. St. James River Water Management District, and the opinion is available at http://www.supremecourt.gov/opinions/12pdf/11-1447_6j37.pdf. NAHB led a coalition of 16 associations which together filed an amicus brief that among other things explained to the Court that governments will not collapse if they cannot extort money from property owners who wish to use their land.
Koontz Case Facts
Mr. Coy A. Koontz owned 14.2 acres of vacant land and sought to improve 3.7 acres of the property. Koontz applied to the St. John’s River Water Management District (District) for permits to dredge and fill 3.25 acres of wetlands. In exchange, Koontz offered to dedicate the remainder of his property (approx. 11 acres) to the State for conservation, but the District rejected the proposal and pressed Koontz for more. The District demanded that Koontz pay to enhance 50 off-site acres of wetlands on the District’s propertylocated between four and 7.5 miles away, by replacing culverts and plugging some ditches. Koontz refused the District’s unreasonable demand. The District then denied outright his permit applications, and would not issue permits unless and until Koontz submitted to its conditions. Koontz brought a lawsuit against the District.
The Legal Background
Since the late 1980s, the Supreme Court has held that a permit condition (also called an “exaction”) is not constitutional unless it has a “nexus” to a governmental purpose and it is “roughly proportion” to the impacts of the project. This is known as the Nollan/Dolan test, named after two Supreme Court cases. The test protects property owners from over-zealous land use permitting officials. Until today, there were two unanswered questions:
Today’s Decision in Koontz
The Supreme Court decided in favor of Mr. Koontz. Specifically, it ruled that Nollan/Dolan applies equally to situations where the government denies a permit and where the government grants a permit with conditions. In other words, if a property owner refuses to agree to outrageous conditions in a permit, and the government denies that permit, the government cannot later argue that there was no constitutional violation because the permit was never granted. In its analysis, the Court used a form of the word “extortion” five times to describe the manner in which governments demand property from developers before granting approvals. Thus, the Court may be starting to understand the realities of the land use permitting process. The Court also ruled that monetary exactions are subject to the same Nollan/Dolananalysis as land exactions. Thus, it makes no difference if the government demands that the land owner give up real property or money as a condition to obtaining a permit. This is a huge victory. The decision gives land owners ammunition to fight permitting officials that attempt to hold up approvals until the land owner surrenders to their extortion.
For years, local governments have pursued arrangements with developers to extract certain concessions in exchange for the opportunity to develop. For example, a locality may ask a developer to improve the street in anticipation of the increased traffic that a development may bring. In some cases, this is a fair request. However, some local governments seem all too willing to stretch the boundaries to the limit.
In a victory for HBA members and property rights advocates, the U.S. Supreme Court on June 25 issued an opinion that directly affects the law that applies to such conditions, called “exactions”. The case is Koontz v. St. James River Water Management District, and the opinion is available at http://www.supremecourt.gov/opinions/12pdf/11-1447_6j37.pdf. NAHB led a coalition of 16 associations which together filed an amicus brief that among other things explained to the Court that governments will not collapse if they cannot extort money from property owners who wish to use their land.
Koontz Case Facts
Mr. Coy A. Koontz owned 14.2 acres of vacant land and sought to improve 3.7 acres of the property. Koontz applied to the St. John’s River Water Management District (District) for permits to dredge and fill 3.25 acres of wetlands. In exchange, Koontz offered to dedicate the remainder of his property (approx. 11 acres) to the State for conservation, but the District rejected the proposal and pressed Koontz for more. The District demanded that Koontz pay to enhance 50 off-site acres of wetlands on the District’s propertylocated between four and 7.5 miles away, by replacing culverts and plugging some ditches. Koontz refused the District’s unreasonable demand. The District then denied outright his permit applications, and would not issue permits unless and until Koontz submitted to its conditions. Koontz brought a lawsuit against the District.
The Legal Background
Since the late 1980s, the Supreme Court has held that a permit condition (also called an “exaction”) is not constitutional unless it has a “nexus” to a governmental purpose and it is “roughly proportion” to the impacts of the project. This is known as the Nollan/Dolan test, named after two Supreme Court cases. The test protects property owners from over-zealous land use permitting officials. Until today, there were two unanswered questions:
- Is there a difference between scenarios when the government simply denies a permit because the land owner would not accede to an onerous condition, as opposed to when it grants a permit with conditions attached?
- Is the Nollan/Dolan test limited to exactions of land (e.g., government asks for 10% of land to be set aside for park), or does it also apply to monetary actions (e.g., government asks for $10,000 to go towards building an off-site park).
Today’s Decision in Koontz
The Supreme Court decided in favor of Mr. Koontz. Specifically, it ruled that Nollan/Dolan applies equally to situations where the government denies a permit and where the government grants a permit with conditions. In other words, if a property owner refuses to agree to outrageous conditions in a permit, and the government denies that permit, the government cannot later argue that there was no constitutional violation because the permit was never granted. In its analysis, the Court used a form of the word “extortion” five times to describe the manner in which governments demand property from developers before granting approvals. Thus, the Court may be starting to understand the realities of the land use permitting process. The Court also ruled that monetary exactions are subject to the same Nollan/Dolananalysis as land exactions. Thus, it makes no difference if the government demands that the land owner give up real property or money as a condition to obtaining a permit. This is a huge victory. The decision gives land owners ammunition to fight permitting officials that attempt to hold up approvals until the land owner surrenders to their extortion.
Friday, May 10, 2013
NAHB: Court Strikes Down NLRB “Poster Rule”
In a victory for NAHB, the U.S. Court of Appeals for the District of Columbia on May 7 struck down a National Labor Relations Board (NLRB) rule that would have required millions of employers across the nation to place 11-inch by 17-inch posters in a prominent area in their workplace that informs employees of their right to form a union.
The court ruled that the NLRB overstepped its authority when it issued the poster rule, which deemed failure to display the required notice an unfair labor practice. The decision stated that the NLRB lacked authority to promulgate such a rule because Section 8(c) of the National Labor Relations Act provides that the dissemination (or non-dissemination) of non-threatening speech shall not be considered an unfair labor practice.
NAHB is a member of the Coalition for a Democratic Workplace, which was a party to the case. NAHB and other business organizations maintain that the poster rule violated free speech rights and amounted to little more than advertisements for union membership.
The court ruled that the NLRB overstepped its authority when it issued the poster rule, which deemed failure to display the required notice an unfair labor practice. The decision stated that the NLRB lacked authority to promulgate such a rule because Section 8(c) of the National Labor Relations Act provides that the dissemination (or non-dissemination) of non-threatening speech shall not be considered an unfair labor practice.
NAHB is a member of the Coalition for a Democratic Workplace, which was a party to the case. NAHB and other business organizations maintain that the poster rule violated free speech rights and amounted to little more than advertisements for union membership.
Friday, April 19, 2013
Chinese Drywall Settlement News
While the problems with drywall imported from China had little impact on the Upstate, we thought you might be interested in the latest news regarding a settlement in the legal dispute.
On February 7, 2013, Judge Eldon Fallon of the U.S. District for the Eastern District of Louisiana, entered an Order and Judgment approving five class‐action settlements that will make available millions of dollars to remediate homes built with Chinese drywall. According to published reports the settlements will benefit more than 10,000 property owners. The order and judgment effectively end the Chinese Drywall Multidistrict Litigation. Judge Fallon’s decision stems from a hearing in November held to help him gauge the fairness of five separate but related settlement agreements between plaintiffs' lawyers and companies that made, supplied or installed the defective Chinese drywall. The settlements were certified for: Interior/Exterior Building Supply, LP; Banner; L&W Supply Corp.; Knauf and Global participating builders, suppliers, and installers. They resolve all claims, counterclaims, and third‐party claims among the settling parties.
The manufacturers of the drywall in question generally fell into two groups: the Knauf entities and the Taishan entities. The Taishan entities are not settling and continue to argue that the court has no personal jurisdiction over them. That issue is currently the subject of an appeal pending before the Fifth Circuit Court of Appeals.
The “InEx” Settlement
This agreement provides for the tendering of all of InEx’s primary insurance proceeds, in the amount of $8,000,000, for the benefit of a national class with claims against InEx involving Chinese drywall.
The Banner Settlements
The Settlement agreement provides that Banner and its insurers will provide $54,475,558.30 for the benefit of a nationwide class consisting of all persons or entities with claims against Banner arising from or otherwise related to Chinese drywall.
The L&W Settlement
The L&W Settlement is a component of the plan for global resolution of the Knauf/KPT supply chain. Financial details were not revealed in the Order.
The Knauf Settlement
The agreement creates two funds from which plaintiffs may recover: the Remediation Fund and the Other Loss Fund. The Remediation Fund is uncapped and will pay to repair roughly 5,200 properties, mostly in Florida, Louisiana, Mississippi and Alabama. The Other Loss Fund, reported to be capped at $30 million, will reimburse for certain provable economic loss and provide a review process for individuals who believe they have bodily injury claims. In addition, attorneys' fees and costs will be paid. This settlement is intended to resolve claims made in filed actions which arose out of KPT Chinese drywall installed in properties in the United States. Importantly, only those who filed a lawsuit in the litigation as of December 9, 2011 are eligible as class members.
The Global Settlement
The Global Settlement involves various builders, suppliers, and installers and provides for a total payment of $70,570,000.00 for class members regardless of the type or brand of Chinese drywall in their properties and regardless of whether they filed their claims in the MDL or another forum. The settlement does not include any properties located in Virginia (those properties are the subject of a separate class action).
On February 7, 2013, Judge Eldon Fallon of the U.S. District for the Eastern District of Louisiana, entered an Order and Judgment approving five class‐action settlements that will make available millions of dollars to remediate homes built with Chinese drywall. According to published reports the settlements will benefit more than 10,000 property owners. The order and judgment effectively end the Chinese Drywall Multidistrict Litigation. Judge Fallon’s decision stems from a hearing in November held to help him gauge the fairness of five separate but related settlement agreements between plaintiffs' lawyers and companies that made, supplied or installed the defective Chinese drywall. The settlements were certified for: Interior/Exterior Building Supply, LP; Banner; L&W Supply Corp.; Knauf and Global participating builders, suppliers, and installers. They resolve all claims, counterclaims, and third‐party claims among the settling parties.
The manufacturers of the drywall in question generally fell into two groups: the Knauf entities and the Taishan entities. The Taishan entities are not settling and continue to argue that the court has no personal jurisdiction over them. That issue is currently the subject of an appeal pending before the Fifth Circuit Court of Appeals.
The “InEx” Settlement
This agreement provides for the tendering of all of InEx’s primary insurance proceeds, in the amount of $8,000,000, for the benefit of a national class with claims against InEx involving Chinese drywall.
The Banner Settlements
The Settlement agreement provides that Banner and its insurers will provide $54,475,558.30 for the benefit of a nationwide class consisting of all persons or entities with claims against Banner arising from or otherwise related to Chinese drywall.
The L&W Settlement
The L&W Settlement is a component of the plan for global resolution of the Knauf/KPT supply chain. Financial details were not revealed in the Order.
The Knauf Settlement
The agreement creates two funds from which plaintiffs may recover: the Remediation Fund and the Other Loss Fund. The Remediation Fund is uncapped and will pay to repair roughly 5,200 properties, mostly in Florida, Louisiana, Mississippi and Alabama. The Other Loss Fund, reported to be capped at $30 million, will reimburse for certain provable economic loss and provide a review process for individuals who believe they have bodily injury claims. In addition, attorneys' fees and costs will be paid. This settlement is intended to resolve claims made in filed actions which arose out of KPT Chinese drywall installed in properties in the United States. Importantly, only those who filed a lawsuit in the litigation as of December 9, 2011 are eligible as class members.
The Global Settlement
The Global Settlement involves various builders, suppliers, and installers and provides for a total payment of $70,570,000.00 for class members regardless of the type or brand of Chinese drywall in their properties and regardless of whether they filed their claims in the MDL or another forum. The settlement does not include any properties located in Virginia (those properties are the subject of a separate class action).
Friday, June 29, 2012
HBA Builder Breakfast set for July 26; program will feature new benefits for Builders
Your HBA of Greenville will host a Builder Breakfast for HBA Builder members Thursday, July 26, 8 a.m., at Tommy's Country Ham House. Builder members are invited to attend compliments of our sponsor, Great American Insurance Group.
The agenda for the meeting is as follows:
The agenda for the meeting is as follows:
- Presentation and discussion of new qualifications of membership for HBA Builder Members
- Presentation of a new benefit of membership: Legal Hotline
- Presentation by Great American Insurance Group of the HBA of Greenville Builders Risk Program
This event is open to Builder members and invited guests only.
A note to our Associate Members from Michael Dey, Executive Vice President: your HBA of Greenville has not held a Builder-only meeting since 2007. It is not our plan to make these meetings a regular occurrence. However, we have several items of business we need to discuss with our Builder members that necessitate this meeting. I would like to thank Great American Insurance Group for sponsoring the breakfast and offering our Builder members a discount program for their Builders Risk Insurance needs that is exclusive to members of the HBA of Greenville.
Thursday, April 14, 2011
EPA Issues Fines for Lead Violations
Two window replacement contractors recently agreed to pay civil penalties totaling over $50,000 in administrative actions taken by the Environmental Protection Agency (EPA) for failing to provide the agency’s "Renovate Right" brochure to “at least 37” residents and property owners prior to the completion of services rendered.
In both cases, the companies were cited for failing to distribute the brochure as required rather than for ignoring specific steps and measures for containment and clean-up mandated by the EPA. Both cases involved a paperwork audit.
Eleven states are now administering their own audits. According to a source at the EPA, the agency has yet to take legal action against contractors for specifically violating the Renovation, Repair and Painting (RRP) containment and clean-up rules.
A press release regarding the mentioned legal actions, posted to the EPA's website, fueled speculation that the agency may be stepping up audits and possibly even on-site inspections in connection with RRP enforcement.
Check for Lead, a Florida-based online supplier of materials for contractors involved with lead-safe renovation, launched a website in which contractors seeking information about EPA audits in their area may view a map that flags locations where EPA audits can be verified as having taken place and gain insight from those who have already gone through the audit process themselves. To see Check for Lead's map, click here. To date no enforcement actions have been verified in South Carolina by the website.
In both cases, the companies were cited for failing to distribute the brochure as required rather than for ignoring specific steps and measures for containment and clean-up mandated by the EPA. Both cases involved a paperwork audit.
Eleven states are now administering their own audits. According to a source at the EPA, the agency has yet to take legal action against contractors for specifically violating the Renovation, Repair and Painting (RRP) containment and clean-up rules.
A press release regarding the mentioned legal actions, posted to the EPA's website, fueled speculation that the agency may be stepping up audits and possibly even on-site inspections in connection with RRP enforcement.
Check for Lead, a Florida-based online supplier of materials for contractors involved with lead-safe renovation, launched a website in which contractors seeking information about EPA audits in their area may view a map that flags locations where EPA audits can be verified as having taken place and gain insight from those who have already gone through the audit process themselves. To see Check for Lead's map, click here. To date no enforcement actions have been verified in South Carolina by the website.
Thursday, January 20, 2011
NAHB member benefit: legal advice, at no cost to members
Did you know that as a member of your Home Builders Association you can receive legal advice from NAHB's team of lawyers, free of charge?
The NAHB Legal Research Program does not replace your local attorney, but it will provide you with an understandable response to your legal question - fast - often the same day of your inquiry - saving you time and money.
Through NAHB you have access to a computerized database containing over three million court opinions, numerous legal publications, plus all federal and state statutes. This is an important NAHB benefit, available FREE for all members and affiliates.
Click here to access NAHB's Legal Research Program. You must be logged into NAHB's website to access this service. Contact us at info@HBAofGreenville.com if you need your log on credentials.
The NAHB Legal Research Program does not replace your local attorney, but it will provide you with an understandable response to your legal question - fast - often the same day of your inquiry - saving you time and money.
Through NAHB you have access to a computerized database containing over three million court opinions, numerous legal publications, plus all federal and state statutes. This is an important NAHB benefit, available FREE for all members and affiliates.
Click here to access NAHB's Legal Research Program. You must be logged into NAHB's website to access this service. Contact us at info@HBAofGreenville.com if you need your log on credentials.
Friday, November 19, 2010
New FEMA Rules Shift ESA Consultation Requirements to Developers
The Federal Emergency Management Agency (FEMA) on Oct. 1 enacted new rules that apply to many developers in flood-prone areas that provide habitat for threatened and endangered species. The new rules, contained in Procedure Memorandum 64, were issued in response to several successful lawsuits by environmental groups against FEMA for not appropriately considering its responsibilities under the Endangered Species Act (ESA) when allowing development to take place. Now, FEMA is shifting those responsibilities to the landowners themselves.
When a project is proposed for a parcel of land within a floodplain, FEMA can issue a Conditional Letter of Map Revision (CLOMR) to state that the project, if built as proposed, would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain as shown on FEMA's Flood Insurance Rate Maps. Similarly, a Conditional Letter of Map Revision based on Fill (CLOMR-F) is used by FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain.
The change indicated by Procedure Memorandum 64, requiring private landowners to provide proof that they are complying with the provisions of the Endangered Species Act before making any requests of FEMA, will likely add time and expense to any project in which property owners need flood map revisions to move forward, because they may first need to complete the Section 7 or Section 10 permit process. The Section 7 process can take 90 to 135 days to complete, while the Section 10 permit process can take about two years.
Going forward, NAHB will be adding clarifying information on this issue to our ESA section of NAHB.org, and we are reaching out to both FEMA and the Fish and Wildlife Service to discuss the implications of FEMA's memorandum.
Read more in Nation's Building News, or contact Matt Watkins (800-368-5242, x8327) for more information.
When a project is proposed for a parcel of land within a floodplain, FEMA can issue a Conditional Letter of Map Revision (CLOMR) to state that the project, if built as proposed, would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain as shown on FEMA's Flood Insurance Rate Maps. Similarly, a Conditional Letter of Map Revision based on Fill (CLOMR-F) is used by FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain.
The change indicated by Procedure Memorandum 64, requiring private landowners to provide proof that they are complying with the provisions of the Endangered Species Act before making any requests of FEMA, will likely add time and expense to any project in which property owners need flood map revisions to move forward, because they may first need to complete the Section 7 or Section 10 permit process. The Section 7 process can take 90 to 135 days to complete, while the Section 10 permit process can take about two years.
Going forward, NAHB will be adding clarifying information on this issue to our ESA section of NAHB.org, and we are reaching out to both FEMA and the Fish and Wildlife Service to discuss the implications of FEMA's memorandum.
Read more in Nation's Building News, or contact Matt Watkins (800-368-5242, x8327) for more information.
NAHB Sues Army Corps of Engineers Over Wetlands Classification
NAHB has joined in a lawsuit with the American Farm Bureau Federation and the United States Sugar Corporation that challenges a U.S. Army Corps of Engineers decision to begin treating certain farm fields as wetlands, affecting both the value of the property and the process for developing or building on it.
American Farm Bureau Federation et al. v. U.S. Army Corps of Engineers resembles a suit brought simultaneously by New Hope Power Company and Okeelanta Corporation. Both suits have been before Judge K. Michael Moore of the U.S. District Court of the Southern District of Florida and challenge the Corps’ recent attempts to improperly change a 17-year-old regulation that provides that land used for agriculture since at least 1985 can no longer be treated as wetlands.
In 1993, the Corps adopted a rule establishing that agricultural lands converted from wetlands prior to 1985 — or “prior converted croplands” — would be excluded from regulation under the Clean Water Act. Therefore, if a farmer decides to utilize land that has been excluded from regulation for some other use or to sell it to a residential or commercial builder, there is no need to get a new jurisdictional determination or go through the Clean Water Act permitting process.
However, in a 2009 memorandum, Corps Director of Civil Works Steven Stockton approved a new standard to regulate these agricultural lands when there is a change in their use. The regulatory uncertainty caused by this action is what prompted the lawsuits from NAHB and other industry groups.
In a recent positive development, this October, Judge Moore ruled in the New Hope Power case that the Corps could not change its policy without going through the usual federal process of giving public notice and offering a set time for comments from stakeholders or other interested parties. However, as yet there is no indication whether the government will appeal this ruling to the U.S. Court of Appeals for the 11th Circuit.
American Farm Bureau Federation et al. v. U.S. Army Corps of Engineers resembles a suit brought simultaneously by New Hope Power Company and Okeelanta Corporation. Both suits have been before Judge K. Michael Moore of the U.S. District Court of the Southern District of Florida and challenge the Corps’ recent attempts to improperly change a 17-year-old regulation that provides that land used for agriculture since at least 1985 can no longer be treated as wetlands.
In 1993, the Corps adopted a rule establishing that agricultural lands converted from wetlands prior to 1985 — or “prior converted croplands” — would be excluded from regulation under the Clean Water Act. Therefore, if a farmer decides to utilize land that has been excluded from regulation for some other use or to sell it to a residential or commercial builder, there is no need to get a new jurisdictional determination or go through the Clean Water Act permitting process.
However, in a 2009 memorandum, Corps Director of Civil Works Steven Stockton approved a new standard to regulate these agricultural lands when there is a change in their use. The regulatory uncertainty caused by this action is what prompted the lawsuits from NAHB and other industry groups.
In a recent positive development, this October, Judge Moore ruled in the New Hope Power case that the Corps could not change its policy without going through the usual federal process of giving public notice and offering a set time for comments from stakeholders or other interested parties. However, as yet there is no indication whether the government will appeal this ruling to the U.S. Court of Appeals for the 11th Circuit.
Wednesday, August 25, 2010
NAHB Lawsuit Successfully Defeats EPA Stormwater Rule
A lawsuit filed by the National Association of Home Builders (NAHB) and the Wisconsin Builders Association has forced the U.S. Environmental Protection Agency (EPA) to withdraw a key portion of its new stormwater management regulations affecting builders and developers. According to NAHB, EPA will have to go back to the drawing board on the numeric limit for sediment it developed and attempted to enforce.
Read the article about this legal victory in Nation's Building News by clicking here.
Read the article about this legal victory in Nation's Building News by clicking here.
Monday, August 2, 2010
Immigration Law Lunch and Learn
Melissa Azallion, Esq., an immigration law expert with the law firm Nexsen Pruett in Hilton Head, will teach a lunch and learn workshop on the new state immigration law, enforcement techniques by Federal and State agencies, and how you can comply with these laws.
August 23, 11:30 a.m.
Hubbell Lighting Headquarters
Immigration has become a significant political issue and a new state law took effect for all employers on July 1. In addition, ICE, or the Federal Immigration Control and Enforcement, recently visited the Greenville area and took enforcement action against several businesses, including contractors. Complying with immigration laws, both State and Federal, can mean the difference between survival and failure of your company.
This workshop is 90 minutes you need to set aside to make sure that your business is in compliance with these important laws.
Click here to register for the Immigration Law Lunch and Learn.
Monday, December 14, 2009
Model New Construction Sales Contract Now Available
Your Home Builders Association of Greenville, in cooperation with the Home Builders Association of South Carolina, has made available exclusively to members a model sales contract for new homes.
The new contract addresses many deficiencies in the previous contract which has been in use for nearly 10 years. The contract was developed by a committee led by Attorney Ken Ormand. HBA of Greenville Director Brian Lazarus, CMB, of Lazarus-Shouse Communities was a member of the committee that developed the contract.
Members can download the contract at the Library Section of www.hbaofgreenville.com, a section viewable only in the the Member-Only area of the website.
To download the new contract, click here.
The new contract addresses many deficiencies in the previous contract which has been in use for nearly 10 years. The contract was developed by a committee led by Attorney Ken Ormand. HBA of Greenville Director Brian Lazarus, CMB, of Lazarus-Shouse Communities was a member of the committee that developed the contract.
Members can download the contract at the Library Section of www.hbaofgreenville.com, a section viewable only in the the Member-Only area of the website.
To download the new contract, click here.
Monday, September 28, 2009
HBA of South Carolina and Charleston Jointly Sue Dorchester School District Over Impact Fee
The Home Builders Association of South Carolina and the
In 2009 the General Assembly adopted special legislation sponsored by Senator Mike Rose allowing
“The state’s constitution is very clear in prohibiting special legislation that applies to only one county, city, or school district,” Ford said. “It is unfortunate that we have to take this action, but it is important that all
“Regardless of the schools need for funding, our constitution protects citizens from this type of special legislation when a general law provides guidance for the state as a whole,” said
The lawsuit will be filed on September 29 in Dorchester County Court of Common Pleas.
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