October 5, 2015



            Eminent domain occurs when the state takes an owner's real property for public use.

The process is called condemnation. This seems unusual to many. Why, they ask, can the

government take my property? It's not that simple and there are safeguards in place to protect an

owner facing condemnation.

            A brief history of this process is helpful. The U.S. Constitution provides safeguards.
The Fifth Amendment states that the Federal Government cannot deprive individuals of "life, 
liberty, or property," without due process of law. In addition, the Fourteenth Amendment
forbids states from denying any person "life, liberty or property, without due process of law."
In turn, Article 3, Section 40 of Maryland's Constitution adds safeguards including:
            *that there is no taking of private property for public use without just compensation,
            *that the private property must be appraised and the fair market value determined,
            *that these matters may be submitted to a jury, and
            *that there can be an immediate taking for certain needs such as roads and right of ways.
            With this brief overview, you can see how complicated eminent domain and
condemnation cases are. Many questions arise. What is a "public use?" Who determines the "fair
market value?" How does an "immediate taking" work? Should an owner contest a proposed
condemnation? How much will it cost? Can the state take only part of the property? What if
there is a lease in effect? What does "due process" require? Should an owner settle or fight a
proposed condemnation? Will a displaced owner be paid relocation expenses or reimbursed for
financial losses incurred because of a condemnation?
            Each case in unique and factually specific. This article does not attempt to and cannot
provide absolute answers to the many possible scenarios. However, the following tips can be
helpful for a property owner dealing with this situation.
            Generally, the state can establish the "public use" requirement, making this difficult to
challenge. Nevertheless, a property owner in this situation should beware of the following
potential issues, among others:
            1. A property owner must be given proper notice of the proposed condemnation. This
includes advanced notice (except in cases of immediate condemnation noted above).
            2. Except for immediate condemnation cases, an owner has a right to request a jury trial. For example, a jury trial may be requested on specific issues such as fair market value. Owners also have appeal rights.
            3. Once a property has been condemned, an owner is entitled to damages. Damages can be awarded for the taking of an entire tract of land or where part of a tract is taken, for the fair market value of the part taken.
            4. The value of condemned property is critical to an owner. The state must provide evidence, including a written appraisal of the fair market value of the property performed by a qualified impartial appraiser. An owner can also present appraisal evidence or can rely on the assessed value of the property as determined by the State Department of Assessment and Taxation.
            5.  There are special considerations if the property being condemned is a dwelling. An owner or occupant of a dwelling may be entitled to additional compensation for the reasonable cost of a replacement dwelling, or other increased interest costs and other debt service costs a person is required to pay for financing any comparable replacement dwelling.  Also, moving and relocation expenses must be paid to a displaced person.
            6. If the property owner prevails, the state must pay courts costs in a condemnation proceeding, including an allowance for reasonable legal, appraisal, and engineering fees. In addition, the owner may be entitled to interest on damages at the rate of 6% per annum. An owner is also entitled to receive a credit for taxes paid before the property was condemned.
            7. An action for condemnation must be brought within 4 years of the authorization to administratively or legislatively acquire the property. This period can be renewed by a new authorization.
            An owner facing condemnation is wise to retain an attorney at the inception of the proceeding to help with the complicated issues along the way. Experienced counsel can untangle the complicated issues and focus on maximizing an owner's damages. This can make the whole process, which is understandably something most people would rather not face, more successful.

September 28, 2015



            Are you considering starting a business in Maryland? If so, it is important that you select
the right type of entity and comply with Maryland requirements. An attorney and accountant can
be helpful in guiding you through the necessary steps. As a broad overview, take note of the
following tips.

            1. What type of entity should my business be?  This depends on many factors.
Maryland recognizes the following business entities: sole proprietorship, general partnership,
corporation and limited liability corporation. Sole proprietorships and general partnerships do
not require the formation of an entity. Instead, Maryland simply requires registering such
businesses with the State Department of Assessments and Taxation and paying personal property
assessments.  In contrast, corporations and limited liability corporations must be properly
registered business entities with the State Department of Assessments and Taxation. Regardless
of the type of entity, certain businesses in Maryland also require a business license.

            2. Do I need a Business Name? The name of your business can be critical.  You want a
name that suits your business and can be used effectively in marketing. However, for a
corporation, you must ensure that the name you select is available in Maryland and then file
required forms with the State Department of Assessments and Taxation.  If you have a trade
name or trademark, you should also considering registering them. Trade names can be registered
with the Maryland Department of Assessments and Taxation. Trademarks can be registered with
the U.S. Trademark Office.

            3. How are taxes paid? All businesses must pay Federal and Maryland taxes. New
businesses should obtain an "EIN," or taxpayer information number from the IRS. This is needed
for withholding and tax payments. Your new business should also obtain a Maryland Combined
Registration Number from the Maryland DLLR if the business will have employees.

            4.  Are there zoning considerations? Where you locate your business is
another key consideration. You must comply with local zoning laws to be sure that your business
can be located in the area you select. If you plan to run your business from home, you must be
sure that there are no zoning restrictions for home-based business.

            These are some initial things to consider when planning a new business.  This list,
however, is not exhaustive. There are many considerations. Selecting the right entity and
carefully following Maryland's requirements can make a big difference and get your business off

to a strong start.

September 21, 2015



                Did you know that you can record a judgment from another state in Maryland? Through a simple procedure a recorded out of state judgment becomes legally enforceable in Maryland, increasing your options for collection and satisfaction of a judgment.

                To record a final judgment from another state, you need a  certified copy of the judgment from the jurisdiction where it was entered. You can then file the certified copy in any county in Maryland, after giving proper notice to the debtor, and it becomes a valid judgment ripe for collection here. A final judgment can be recorded in any county. Each county charges a filing/recording fee.

                So, if you have a foreign judgment from another state when should you think about recording it in Maryland and in which county? It makes sense to record the judgment in a county where the debtor lives, works, or has any property or assets, because you can move to attach them.

                What can you do with a recorded final judgment? It automatically becomes a lien from the date of entry on the debtor's interest in land located in that county. In addition, it enables you to do various forms of "discovery," such as Interrogatories in Aid of Execution or a Deposition, to learn specifics about a debtor's finances, including attachable assets. It also opens up a variety of potential collection avenues, including bank account and wage garnishment, and attachment and sale of property.

                The procedure to record a foreign judgment may be a cost effective option to obtain payment on a judgment. 

September 18, 2015



            What should you do if you get a zoning violation notice in Howard County?  First, some background on the Howard County Department of Planning and Zoning ("DPZ") is useful. DPZ's stated mission is: "To create collaborative, innovative plans and implement strategies that effectively address growth and redevelopment challenges. DPZ seeks to enhance Howard County's high quality of life, prosperity and stewardship of natural and cultural resources." As part of this mission, DPZ issues various zoning regulations contained in the Code of Ordinances and Municipal Code. These can be found online at  www.howardcounty.gov.  The Howard County Planning Commission, Board of Zoning Appeals and their delegates are designated to enforce these zoning regulations.  If you received a zoning violation notice, the complaint could have been made by these zoning  authorities or by a private citizen, even anonymously.

            Once a complaint is made, it will be investigated by county zoning authorities. Action
may or may not be taken, depending on what the investigation shows. Investigations can
result in inspections of property, emergency remedies, and denial of access to property. The 
DPZ, upon becoming aware of a zoning violation, may institute an injunction, mandamus (court
order to correct a public record or title), abatement, or any other action to prevent or stop the
violation.  A notice may be issued ordering a stop to the violation within 10 days or within a
reasonable time specified. Such notice must be served personally or by registered mail. If the
violation is not timely remedied, DPZ can take whatever action is necessary to end the violation.
DPZ may enforce zoning regulations by issuing citations. These citations can be heard in court or
in administrative proceedings.

            If a violation notice is not issued, an aggrieved person may request that DPZ issue
a written notice, fairly describing the property and alleged violation. This must be done within
60 days of receiving the written request. If no notice is issued during this time period, it means
DPZ has decided that the violation does not exist. Thereafter, the complainant has appeal rights.
If an appeal is taken, DPZ must send a copy of the appeal to the owner and occupant of the
premises where the alleged violation exists.  
            If a violation is found, failure to remedy the violation is a misdemeanor with a monetary
fine of up to $500 per day that the violation continues. There are also other civil penalties and
enforcement remedies available to DPZ under the Howard County Code.

            There are many types of potential zoning violations including for example prohibited
placement of a structure, sign, improvement, or change of land use; failure to obtain a permit for
improvements or land use; or prohibited use of land. Zoning violations and hearings are often
complicated and time consuming. An attorney can be help a person facing an alleged zoning

violation navigate this process. Katherine Taylor and Andrea LeWinter have assisted many clients who have received zoning violation notices, and those who sought to ensure that violation notices were issued to other landowners who were violating the zoning regulations. 

June 8, 2015

ABLE or SNT? How Can I Save for My Child with Special Needs?

While many parents are very responsible and do their best to provide for their kids, many families also depend on government benefits which can be very helpful to a family – even a family with adequate resources – especially where there are other children, and when the parents have retirement and college accounts to fund. Most of the time when a child with special needs is in the family, parents (very responsibly) fund UTMA accounts for all of their kids, including the child with special needs.

Many parents, however, actually end up doing their child a disservice, because funds in the name of a child who is seeking government benefits can prevent a child from qualifying for certain government aid. Accounts in the name of the child (UTMA funds become the property of the child when the child reaches the age of either 18 or 21 – depending on how the account is set up) are considered to be owned by the child, even if the parent funded the account (the funds are deemed to be gifts to the child).  In some cases, when a child turns 18, (s)he may be eligible for SSI (Social Security Income and other benefits such as Medicare) as a result of a disability. However, for many programs he or she will NOT be considered fully eligible until all of his or her other assets are exhausted. If the potential recipient has funds in his or her name, the potential recipient may have to “spend down” those funds before becoming eligible to receive benefits.

Therefore, the parent is between a rock and a hard place. Do the parents start saving now in the name of the child, or do the parents opt NOT to put funds in the name of the special needs child? If the parent opts to NOT put funds in the name of the child, they can put the funds in the name of a third person with instructions to use that money for the benefit of the special needs child, but many times the parents do not know someone who can be relied on to care for the child if the parents are no longer able to.

Until very recently, the only safe way for families to plan in advance to both (1) provide for their child, and (2) arrange the child’s finances so that the child upon becoming an adult (age 18) will be eligible to receive government benefits in addition to funds set aside by the parents, was to set up a Special Needs Trust, also called a Supplemental Needs Trust (SNT).   After the SNT is created, the parents (or others) can add money to the SNT as gifts to the child (up to the maximum amount per year that is exempt from gift tax). That trust would also be in existence throughout the life of the child to accept any death benefits payable to the child, should either of the parents or grandparents pass away and leave funds to the special needs child.

If set up properly, the funds in the Parent SNT do NOT disqualify the child for government benefits (because the trust, not the child, “owns” the funds and the funds are distributed by a trustee strictly in accordance with the terms of the trust). The main thrust of the SNT is that the trustee (the parents or any successor) can only use the funds in the trust to pay for any supplemental needs not covered by government benefits. Thus, the child gets the benefit of government help AND other supplemental needs met (such as recreation, education, etc.) from the funds set aside for the child’s benefit. While a SNT trust is a good idea, it cannot be funded with funds that are already considered to be owned by the child (UTMA account in existence), so it is important for parents to set up an SNT as soon as they realize the need for one.

Recently, Congress passed a law that will provide another alternative to parents wishing to save for special needs children, or for persons with disabilities to save for themselves.  In late 2014, the president signed the Achieving a Better Life Experience Act, or ABLE Act. This new law, which is modeled after 529 college savings plans, will allow people with disabilities (or others on their behalves) to open special accounts where they can save up to $100,000 without risking eligibility for Social Security and other government programs. While contributions to the accounts are not tax deductible, interest earned on savings will be tax-free. Funds accrued in the accounts can be used to pay for “qualified disability expenses” which is any expense related to the designated beneficiary as a result of living a life with disabilities and includes education, housing, transportation, employment training and support, assistive technology, personal support services, health care expenses, financial management and administrative services education, health care, transportation, housing and other expenses. To be eligible, a person has to have a “significant disability” with an age of onset of disability before turning 26 years of age.
As of now, the total annual contributions to an ABLE account by all participating individuals, including family and friends, is $14,000. There are other limitations, including maximum amounts that can accrue in an ABLE account and limitations on the amount that is exempted from the resource limits for certain government benefits. For example, the first $100,000 in ABLE accounts would be exempted from the SSI $2,000 individual resource limit, but if the amount in an ABLE account exceeds $100,000, the beneficiary would be suspended from eligibility for SSI benefits and no longer receive that monthly income. However, the beneficiary would continue to be eligible for Medicaid, but states would be able to recoup some expenses through Medicaid upon the death of the beneficiary.

The US Treasury Department, through regulations that are likely in process of being written and that will hopefully be completed in 2015, will publish more details explaining what a “significant” disability is and how to set up and qualify for ABLE accounts. In addition, each state also put its own regulations in place — much as they have done for 529 plans — so that financial institutions can make the new accounts available.

While the addition of the ABLE account will provide more choice and control for the family of a person with disability, the ABLE account will not replace the SNT entirely. The cost of establishing an ABLE account will be considerably less than a Special Needs Trust, because an ABLE account will be able to be opened with a bank or financial advisor (a SNT can be costly to set up, as it generally requires the services of a lawyer). Further, with an ABLE account, account owners will have the ability to control their own funds (rather than having the trustee of a SNT control the funds) and, if circumstances change, the account owner will still have other options available to them.  However, the ABLE account can only be opened by someone with a “significant” disability (to be defined in regulations) and, because of the likely monetary and qualification limitations that will be imposed on ABLE accounts, a SNT may be more advantageous for some families. Determining which option is the best for any family or person will depend upon individual circumstances.

* “Special Needs” in this article refers to a condition or disability that will likely prevent a person from supporting himself or herself fully.

February 27, 2015

Do I need to create a Special Needs Trust for my child with a disability?

What is a Special Needs Trust?

A Special Needs Trust (also called a Supplemental Needs Trust) for a disabled child is a trust formed by the parent and funded with assets that normally would placed into a regular account for the child, and which "shields" those assets from being considered assets of the child for governmental benefit purposes.

Many times, parents (very responsibly) fund UTMA (Uniform Transfer to Minors Act) or other accounts for their kids. Those funds are considered to be owned by the kids as a result of gifts from the parents to the kids. When the kids are minors, they cannot take legal ownership of the funds – that only happens when they reach the age of majority (either 18 or 21, depending on the actual account set up). Once a child reaches that age, he or she can legally do anything they want with the money. (Yes, sometimes, children don’t really know that the accounts can be accessed by them, and they allow their parents to direct as to how the funds should be spent - such as when the child is in college, and the child “pays” college tuition or other expenses with the funds.)

In some cases, when a child turns 18, (s)he may be eligible for SSI (Social Security Income) and other benefits such as Medicare/Medicaid as a result of a disability. However, for many programs he or she will NOT be considered fully eligible until all of his or her other assets are exhausted. (The government does not pay social security income or Medicare/Medicaid if a recipient has other available funds, and requires the potential recipient to “spend down” those funds before becoming eligible to receive benefits.)

While many parents are very responsible and do their best to provide for their kids, government benefits can be very helpful to a family – even a family with adequate resources – especially where there are other children, retirement and college accounts to fund, etc. So, many families plan in advance to both (1) provide for their child, and (2) arrange the child’s finances so that the then-adult child (age 18) will be eligible to receive government benefits in addition to funds set aside by the parents (or others) as gifts to the child during the child’s younger years.

What a parent may want to do now is set up a Special Needs Trust (also called a Supplemental Needs Trust) (Parent SNT) that will be funded with future gifts from the parents and others (up to the maximum amount per year that is exempt from gift tax – now $13,000 per person per recipient - $26,000 per year from both parents and $13,000 per year from any other person). That trust would also be in existence throughout the life of the child to accept any death benefits payable should either parent or even a grandparent pass away. If set up properly, the funds in the Parent SNT do NOT disqualify the child for government benefits (because the trust, not the child, “owns” the funds and the funds are distributed by a trustee in accordance with the terms of the trust). The trustee (you or any successor) can use the funds in the trust to pay for any supplemental needs not covered by government benefits -- the funds cannot be used to pay for ordinary daily needs that would be covered by governmental benefits. Thus, the child gets the benefit of government help AND other supplemental needs met (such as recreation, education, etc.) from the funds set aside for the child’s benefit.

What if We Already Have UTMA Accounts in the Child's Name?

Here is the kicker. A parent cannot fund a Parent SNT with funds that are already considered to be the child’s (UTMA account in existence), and thereby convert those funds that are already in the name of the child to funds that are not considered the child’s for government benefit purposes. So, even if you set up a Parent SNT now, at age 21 when the UTMA funds legally vest in the child’s name, the UTMA funds may have to be used to  pay back government benefits (s)he had been receiving from the age of 18 and/or the existence of the UTMA accounts will disqualify her for benefits (even if (s)he was previously qualified) if the account still has a balance . So, while a child may have become eligible for and been receiving benefits from the age of 18, once the UTMA funds vest (s)he will become ineligible until those funds are spent to payback benefits already received. After the spend down, (s)he will then be eligible again for government benefits.

Again, when the child turns 18 years old, (s)he may become eligible for certain government benefits, and the UTMA funds vest in him/her when (s)he turns 21.  What some people do is use the UTMA funds already set aside for the benefit of the child with the intent that by the time (s)he turns 21 (s)he has no assets that (s)he owns and legally controls. During the period before the child turns 21, the funds in a UTMA account can be used to pay for supplemental expenses for the child –pay for school, pay for an apartment, pay for camp or a car, etc. If those funds are exhausted before (s)he turns 21, then she will not lose her benefits eligibility as a result of having available funds in her name when (s)he turns 21.

In the meantime, you can set up a Parent/Third Party SNT and fund that with future gifts to the child. That trust would be mentioned in the parents' wills as the trust that would receive any testamentary bequests from either or both parents, and would maintain eligibility for government benefits for a child who may be eligible.

For more information, consult: www.specialneedsalliance.org;
http://www.socialsecurity.gov/ssi/spotlights/spot-trusts.htm; and a lawyer experienced in handling special needs trusts in your State. 

September 2, 2014

Do I have a right to air my views about an environmental permit application?

Q. Do I have a right to get involved in a situation where the state will be issuing an environmental permit for a property that borders mine?

A. You usually have a right to a notice of the impending permit as well as a right to publicly air your views regarding its impact. And in some cases, you may also have a right to challenge the permit. But first things first—how do you even find out that a permit is being requested? You must look for the public notice.

As a general rule, government agencies must give the community ample notice of an environmental action (e.g., permits/regulations) and an opportunity to comment on them.

Finding that notice, though, can be tricky. Oftentimes it’s buried in the legal-advertisement section of local newspapers; it can also be found in the Federal Register, located at public libraries and online. Since public notices make for some heavy reading, an effective way to keep track of an issue important to you is to contact—in writing—the permitting department of the responsible agency (for example, your state’s department of environmental issues if it’s a state matter; local government if it is a local issue) and ask to receive a copy of all public notices regarding the permit.

After the public has been notified, the community is given a period of time to “comment” on the issue—usually 30 to 45 days. Now’s the time to ask to review the permit and its application. Submit written comments questioning why it is being pursued and look at studies made by the agency showing why it’s necessary.

For interpretation of the documents, ask to speak to a representative of the agency issuing the permit. If you think it’s important that the community give input on the matter, request a public hearing with your state’s environmental agency. While public hearings are often held automatically, they are not always guaranteed. In some instances agencies will not schedule a hearing unless they deem there is enough public interest. Once the hearing is on the calendar, do your homework.

Besides the basics—lining up your questions, gathering information and rallying community support—contact the environmental agency about its ground rules for public hearings.

Are you allowed to present your case for 5 minutes or 10? How many people are allowed to speak? Do you have to sign up in advance? Get all your ducks in a row before you stand before the mike. And once the date comes, make sure you’re at the meeting.

It’s hard to later appeal a permitting decision in court if you didn’t bring up your concerns at the public hearing. What happens if the permit is issued despite strong community opposition? You can appeal the decision in a court of law, but remember, legal action carries a price tag and you should have very compelling evidence that the state’s environmental agency acted recklessly and unreasonably.

You might be wise to try to join forces with a community advocacy or advisory group or an environmental group who may have more money to spend and connections with experienced attorneys.