From Florida: 11 Year Court Battle over $2212 HOA Bill

From the Tampa Bay Times: New Tampa homeowner wins judgment against homeowners association

North Laurel Residential Development

From explorehoward.com: Proposed residential development in North Laurel gets mixed reviews

Farmers disagree over proposal to relax zoning rules for pick-your-own operations

From Explore Howard: Farmers disagree over proposal to relax zoning rules for pick-your-own operations

Along with jobs, Fort Meade growth brings traffic concerns

From the Baltimore Sun: Along with jobs, Fort Meade growth brings traffic concerns

Forest Conservation

Gorman Park, September 2011

Recently, there have been a few articles in the local press discussing forest sustainability. The Baltimore Sun wrote about complaints from forest advocates regarding development around Patapsco Valley State Park on both December 6 and December 7. After reading these articles, and driving by the Christmas tree lot set up at our local high school, I decided to look into forest conservation in Howard County.

In 1991, Maryland passed the Maryland Forest Conservation Act, which was followed by the Howard County Forest Conservation Act in 1993. These acts require developers to:  

address forest resources during the planning and review phases of land development. Any project proposing to clear or grade more than 20,000 square feet of forested land must provide a specified acreage of forest retention, reforestation, and/or afforestation relative to the proposed extent of forest clearing or grading.

The developer enters into a Forest Conservation Agreement, which is an easement, with Howard County. The developer must provide a Plat of Forest Conservation Easement (Plat), a Forest Conservation Plan (FCP), and a Deed of Forest Conservation Easement (Deed) before the County approves a final development plan. The Forest Conservation Plan details what actions the developer must take for the property in question . This includes whether the developer is engaging in forest retention or if he is to plant new trees within specific easements, including what species and sizes of trees are to be planted, and what protections are to be provided to the easements before, during, and after development.

In the event that there is no opportunity for forest conservation, the developer must pay a fee assessed per square foot of property to be developed.

The Department of Recreation and Parks (DRP) was granted the power to inspect forest easements by the Department of Planning and Zoning (DPZ) in 2001.

Now Agreements permit DRP staff to access easement areas to complete forest conservation inspections and to investigate possible violations of the Howard County FCA.  DRP staff members are directed by County planners within DPZ when to inspect specific forest conservation projects.  The costs of inspections are funded through fees paid by developers to the County.  Investigations of possible FCA violations are initiated by reports from concerned citizens, through the use of aerial photography or Geographical Information System (GIS) maps, and as a result of County personnel discovering a possible violation during the completion of their day-to-day activities.

Howard County requires a two-year survival and maintenance period for all forest conservation projects. Developers are required to post a bond throughout this period to guarantee compliance. A forest conservation project must pass an initial inspection before the two-year survival and maintenance period commences.  The inspection determines whether easement boundaries are correct, if planting and forest retention match the FCP, that protective signs are in place, that any violations are mitigated, that invasive species are being managed, and that the public is being educated.  A plot survey of reforestation and afforestation areas is completed to determine FCP compliance and tree survival.  A survival rate of 90% or better is required to initiate the two-year survival and maintenance period. A survival rate of 75% or better is required after two years.  Inspections may continue until the developer brings the project into compliance with the FCA.

If the DRP determines that there are encroachments or violations during the two-year survival and maintenance period, the developer must correct these issues. After the two-year survival and maintenance period ends, the DRP enforces FCA regulations. The DRP first tries to correct violations through public education and cooperation. After that, DRP can issue warning notices and civil citations to force compliances. Any collected fines fund DRP's restoration plan for mitigation of the site.

Howard County provides the following recommendations for project success in regards to forest conservation:

1. Request an extension from DPZ if a project is incomplete.
2. Verify the installation and replacement of forest conservation signs prior to scheduled inspections.
3. Educate the local community of forest conservation objectives and regulations.  It is best to respond to small problems before they become big problems.
4. Routinely monitor easements to assess tree survival and identify site-specific stressors.  Planting the right trees for a site will cost less than repeatedly replacing the wrong trees.  A developer may need to revise an FCP to deal with a problem.
5. Numerous invasive species thrive in Howard County and are capable of overtaking existing and planted trees.  Once again, routine monitoring and management can prevent a small problem from becoming a big problem.

Howard County Board of Appeals approves farm use as wedding venue

The Howard County Board of Appeals approve the use of a farm on Jennings Chapel Road as a wedding venue and antiques store

Haunted Houses

Happy Halloween!

Happy Halloween, Howard County!

I just finished carving my pumpkin, and, in the spirit of the season, I thought I would share with you a little legal horror story, which I first heard in law school.

The case in question is Stambovsky v. Ackley, 169 A.D.2d 254 (NY App. Div. 1991). The facts of the case are thus:

Helen Ackley owned a home in Nyack, New York. She and her family had repeatedly reported the home as being haunted by poltergeists. Their tales of supernatural disturbances had appeared in the local newspaper an three occassions, as well as Reader's Digest. The home was also included on a walking tour of the city of Nyack as a haunted house.

A few years later, Ms. Ackley put her haunted house on the market with Ellis Realty. Jeffrey Stambovsky signed a contract to purchase the house, and made a down payment of $32,500 on the purchase price of $650,000. Mr. Stambovsky was not from Nyack and was unaware of the spooky character the home possessed. Needless to say, when he did hear of the otherworldly haunts who were told to roam the home, he wanted out of the contract. He did not attend the closing for the sale of the house, resulting in his forfeiting of the down payment.

Mr. Stambovsky sued Ms. Ackley for the return of the down payment. The New York Supreme Court (their trial court) dismissed his action, as New York followed the property law doctrine of caveat emptor - buyer beware - and said that the seller had no duty to inform a potential buyer of the alleged hauntings. Mr. Stambovsky appealed. The appellate court reversed the decision. The appellate court said that while caveat emptor would normally bar a recission action, in this case "the most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property's ghoulish reputation in the community". While the court did not say that it believed in ghosts, because Ackley had made the claim so well known the court ruled that the house was haunted as a matter of law.

The legal term for a haunted house is stigmatized property, as it is property which buyers or tenants may shun for reasons that are unrelated to its physical condition or features. A haunted house has a phenomena stigma, but not all jurisdictions recognize this as something that needs to be disclosed. Other types of stigma include criminal stigma (where the house was a brothel or drug den), murder/suicide stigma, public stigma (where the house is famous to many people and any reasonable person can be expected to know of it), and debt stigma (where the previous owners were hounded by debt collectors at the home).

We at Taylor Legal wish you a very happy and safe Halloween!

Zoning and the Residential Business

Earlier in the month, Katherine Taylor posted to our blog an article from the Small Business Association (SBA) which highlighted some of the difficulties that residential – i.e. home based – businesses face. The SBA estimates that up to 50% of small businesses are run out of a person's home. With the increasing use of internet tools, such as video-conferencing and online faxing services, those with an entrepreneurial spirit can easily jump-start a company from their garage.  Additionally, with larger businesses employing furlough days and flex-time, traditional corporate work is being performed at home.

Having a home based businesses is not without it's challenges. Zoning laws for home based businesses are often very stringent. The SBA notes that zoning codes frequently prohibit signs, vehicles of certain classes, exterior improvements relating to the business, and outdoor storage. Additionally, zoning codes can limit the number of employees of a home based business and the number of visitors.

In Howard County, there are a few very specific zoning regulations (opens a .pdf) that a home based business should be aware of:

• The home-based business can't occupy more than 33% of the gross floor area of the dwelling OR 800 square feet, whichever is less;
• The business owner can't have clients visit in a detached garage;
• There can be no exterior evidence of the business;
• Only certain occupations are allowed to conduct home-based businesses.

While this is by no means a comprehensive list, it gives a general idea of the difficulties faced by a potential business owner seeking to establish their business out of their home. Some of the regulations are very sensible - let's face it, no one wants a semi-truck rolling up their street at three in the morning so the neighbor can get the latest shipment of widgets; however, in an economy that is not based on manufacturing but on intellectual products, home based businesses are likely to have little impact on the residential characteristics of the neighborhood.

For those looking to start a residential business, the SBA does have a great page on establishing a home based business.

Here comes the story of the Hurricane

Two natural disasters in one week? As a good friend of mine said the other day, I thought that I was getting away from bad weather when I moved here from Kansas. Nonetheless, Hurricane Irene struck Howard County with some driving rain over the last weekend of August. Fortunately, we did not lose power at my home, and aside from some impromptu trench digging to alleviate a giant puddle threatening to flood our patio, we did not have any hurricane related damage.

Others were not so lucky, with a few still without power as of Labor Day. A friend's neighbor in Silver Spring had a very large pine tree down in their yard. The uprooted tree pulled down power lines and left the neighborhood without electricity for days. Although in this instance the tree seemed to be contained on one property, the implications could have been entirely different had the tree fallen into an adjacent property.

In tort law, there is a concept called intervening force. Intervening force is when the acts of a third person intervene between the defendant's conduct and the plaintiff's injury. One type of intervening cause is known as an “act of God” or “force of nature”. Events, such as hurricanes, are frequently considered such acts. Sometimes, if an intervening force is great enough, it becomes a superseding force and the defendant's negligence is cut off from liability.

The circumstances are different if the defendant knew that there was a problem with his property. For example, In Kimble v. Macintosh Hemphill Co, a Pennsylvania case from 1948 where a negligently maintained roof collapsed in unusually high winds, the court ruled that “(o)ne who fails in his duty to remedy a defective or dangerous condition is liable for injuries resulting therefrom.” Similarly, if a landowner knows he has a damaged tree on his property, and the tree falls into the neighbor's property because of the damage, it is likely that he would have liability for the damage created by the tree.

Insurance policies create another wrinkle in hurricane damage. As the Baltimore Sun reported on September 2^nd, filing an insurance claim for damage during the hurricane can result in insurers charging a hurricane deductible. However, this deductible can only be imposed if the location was under a hurricane warning. On the Western shore, only St. Mary's county was under a hurricane warning; the remaining counties under the warning are all located on the Eastern shore (Caroline, Dorchester, Somerset, St. Mary's, Talbots, Wicomico and Worcester). More information regarding insurance issues raised by Hurricane Irene can be found at the Maryland Insurance Administration website. They have provided a FAQ about weather related losses (link opens a .pdf file).

If you have any further questions, please feel free to contact our office.