Business Law Study Set 13

Business

Quiz 50 :

Environmental Law and Land Use Controls

Quiz 50 :

Environmental Law and Land Use Controls

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General Automotive operates Grand Auto Parts Stores, which receive used automotive batteries from customers as trade-ins. General's policy in disposing of these batteries had been to drive a screwdriver through each spent battery and then sell them to a battery-cracking plant operated by Morris P. Kirk Sons, Inc., which extracted and smelted the lead. After the lead was extracted from the batteries, Kirk washed and crushed the battery casings, loaded them into a dump truck, and then dumped them. Tons of pieces of crushed batteries were dumped onto Catellus Development Corp.'s property. Under CERCLA, Catellus sought to recover from General the costs of cleaning up the hazardous battery parts from its property. General maintained that it was not liable because it sold the batteries to Kirk, and Kirk did the dumping. Was General correct? [Catellus Development Corp. v United States, 34 F3d 748 (9th Cir)]
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Refer to the case Catellus Development Corp. v United States to answer question as below:
Facts to this case
• G had batteries which ended up in a hazardous dump site.
• The batteries ended up in the dump site when G sold it to a company which later extracted material from the batteries and later dumped them into the hazardous dump site.
Case Issue
The issue is whether G is liable for the hazardous material (his batteries) which ended up in the dump site.
Relevant Terms, Laws, and Cases
Superfund (or CERCLA) Act - is an act which holds landowners and others responsible for hazardous material on a land liable for the cleanup of the hazardous material.
Analysis and Conclusion
The court held that G was responsible. They argued that:
• Under the Superfund Act, G is responsible if he had arranged for disposal of hazardous waste.
• The court defined waste as "garbage, refuse, sludge … and other discarded material."
• G contested that the batteries weren't waste because useful materials were extracted from their batteries when they sold it.
• The court considered the batteries waste because the batteries' casing would still needed to be disposed.
Thus, G is liable for the Superfund.

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1997, Isbell purchased a building in San Diego with the intent to open an adult entertainment establishment there. Because this building was located within 1,000 feet of a residential area, however, a San Diego zoning ordinance precluded him from operating there. Isbell applied for a variance but was unsuccessful. He then filed suit, arguing that the city's ordinance violates the First Amendment, and that its standards for variances violate the equal protection clause. Can the city restrict the operation of this business? What must the city be able to establish? [Isbell v City of San Diego, 258 F3d 1108 (9th Cir)]
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Refer to the case Isbell v City of San Diego to answer question as below:
Facts to this case
• I purchased a building for establishing an adult entertainment.
• The city had a zoning rule preventing adult entertainment within 1,000 feet of residential neighborhood.
• I was not granted a variance and sued
Case Issue
The issue is whether the city's zoning is valid.
Relevant Terms, Laws, and Cases
Zoning - are restrictions placed on property in certain areas. For example, a zoning rule that restricts all businesses in a residential neighborhood means that no property owner in the neighborhood can open a business on their property.
Zoning Variance - grants a property owner right to disregard a certain zoning regulation.
Analysis and Conclusion
The court held for I. They argued that:
• The city had a legitimate concern in upholding the zoning regulation
• The city must show that there is a rational basis for upholding that rule, and there alternative locations to open their business.
• The city had a rational basis for upholding the zoning, but failed to show alternative sites for establishing adult businesses.

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Explain why a company would want to perform a self-audit to determine whether it has any environmental violations.
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Self auditing to determine environmental effects will come with reduced penalties from the Environmental Protection Agency (EPA) in case a violation is found. For example, if a company doesn't have a self audit program and is found in non-compliance with EPA pollution standards they may have to pay larger fees.
Furthermore, as a practical matter self auditing may help decrease violations in the future.

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Taback began building a vacation home on a parcel of wooded land. It was to be a three-story house, 31 feet high. This height violated the local zoning ordinance that limited residential homes to two and one-half stories, not exceeding 35 feet. When Taback learned of this violation, he applied for a zoning variance. Because of the delay of the zoning board and because winter was approaching, Taback finished the construction of the building as a three-story house. At a later hearing before the zoning board, he showed that it would be necessary for him to rebuild the third floor to convert the house into a two and one-half story house. The zoning board recognized that Taback's violation could not be seen from neighboring properties. Was Taback entitled to a zoning variance? [Taback v Town of Woodstock Zoning Board of Appeals, 521 NYS2d 838 (App Div)]
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Kenneth and Mary Norpel purchased a house, and Kenneth attached a 35-foot flagpole to it. He did not obtain the permission of the architectural committee of the Stone Hill Community Association. This consent was required by a restrictive covenant to which the Norpel house was subject. The association objected to the flagpole from which Norpel then flew the American flag. The association brought an action to compel the removal of the pole. Norpel claimed that as a combat veteran of World War II, he had a constitutionally protected right to fly the American flag. Can he be compelled to remove the flagpole?
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Patrick Bossenberry owned a house in a planned community area. Each lot in the area was limited by a restrictive covenant to use for a single-family dwelling. The covenant defined family as a blood or marital relationship between most of the occupants. Bossenberry rented his building to Kay-Jan, Inc., which wanted to use the building as a care home for not more than six adult mentally retarded persons. The neighbors sought to enjoin this use as a breach of the covenant. A number of Michigan statutes had been adopted that advanced the public policy of providing care for mentally retarded persons. Could the neighbors prevent the use of the property as a care home for mentally retarded adults? [Craig v Bossenberry, 351 NW2d 596 (Mich App)]
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Union Electric wishes to construct a new coalfired plant in the northeastern corner of Arizona. Union plans to use the maximum achievement technology for the scrubbers on the plant to reduce emissions. Will Union be able to obtain a permit from the EPA to build and operate the new power plant? Discuss the issues that Union faces.
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sections of the city of Manitou Springs have hills of varying degrees of slope. To protect against water drainage and erosion, the city adopted a hillside zoning ordinance that required homes on hillsides to be surrounded by more open land than in the balance of the city. Sellon owned land on a hillside and claimed that the hillside ordinance was unconstitutional because it did not treat all homeowners equally. Was the ordinance valid? [Sellon v City of Manitou Springs, 745 P2d 229 (Colo)]
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Bermuda Run Country Club, Inc., developed a tract of land, formed a country club, and sold some of the lots to individual buyers. Following various sales and litigation, an agreement was executed giving the board of governors power to veto club members' assessments. The agreement declared that this was a restrictive covenant that would run with the land and bind subsequent owners. The corporation that later purchased the country club claimed it did not have that effect. Was the provision in question a restrictive covenant that ran with the land? [Bermuda Run Country Club, Inc. v Atwell, 465 SE2d 9 (NC App)]
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Federal Oil Co. was loading a tanker with fuel oil when the loading hose snapped for some unknown reason and about 1,000 gallons of oil poured into the ocean. Federal Oil was prosecuted for this water pollution. It raised the defense that it had exercised due care, was not at fault in any way, and had not intended to pollute the water. What statutes could be used to prosecute Federal Oil? What are the potential penalties?
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Stallcups lived in a rural section of the state. In front of their house ran a relatively unused, unimproved public county road. Wales Trucking Co. transported concrete pipe from the plant where it was made to a lake where the pipe was used to construct a water line to bring water to a nearby city. In the course of four months, Wales made 825 trips over the road, carrying from 58,000 to 72,000 pounds of pipe per trip and making the same number of empty return trips. Because the heavy use of the road by Wales cut up the dirt and made it like ashes, the Stallcups sued Wales for damages caused by the deposit of dust on their house and for the physical annoyance and discomfort it caused. Wales defended its position on the ground that it had not been negligent and that its use of the road was not unlawful. Decide. [Wales Trucking Co. v Stallcup, 465 SE2d 44 (Tex Civ App)]
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Gregory Mills lives next to Dean Kimbley. Mills kept a journal of Kimbley's activities, and even videotaped a few of the activities, including Kimbley's smoking marijuana and standing drunk in his backyard and yelling, "Hi, neighbor!" Kimbley also threw a snowball into Mills' yard and nearly hit Mills' girlfriend with it. When Mills listed his property for sale because of the issues with Kimbley, Kimbley sent a pizza delivery man to Mills' door and told him to offer $125,000 to buy Mills' home. Kimbley then hired a real estate agent and took a tour of Mills' home with that real estate agent. Kimbley also drove an ATC onto Mills' lawn. Is this a nuisance case? Are these the elements of nuisance? Explain why or why not. [ Mills v. Kimbley , 909 N.E.2d 1068 (Ind. App.)]
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zoning ordinance of the city of Dallas, Texas, prohibited the use of property in a residential district for gasoline filling stations. Lombardo brought an action against the city to test the validity of the ordinance. He contended that the ordinance violated the rights of the owners of property in such districts. Do you agree with this contention? [Lombardo v City of Dallas, 73 SW2d 475 (Tex)]
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McConnells bought a home in Sherwood Estates. The land was subject to a restrictive covenant that "no building, fence, or other structure" could be built on the land without the approval of the developer of the property. The McConnells built a dog pen in their yard that consisted of a cement base with fencing surrounding the base. They claimed that approval was not required on the theory that the restrictive covenant did not apply because it showed an intent to restrict only major construction, not minor additions to the landscape. A lawsuit was brought to compel the McConnells to remove the dog pen because prior approval had not been obtained. Are restrictive covenants applied this expansively to homeowners? Must the McConnells have prior approval? [Sherwood Estates Homes Ass'n, Inc. v McConnell, 714 SW2d 848 (Mo App)]
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Philip Carey Co. owned a tract of land in Plymouth Township, Pennsylvania, on which it deposited a large pile of manufacturing waste containing asbestos. Carey sold the land to Celotex, and Celotex sold the land to Smith Land Improvement Corp. The EPA notified Smith that unless it took steps to eliminate the asbestos hazard, the EPA would do the work and pursue reimbursement. Smith cleaned up the land to the EPA's satisfaction at a cost of $218,945.44. Smith asked Celotex and Carey for reimbursement. Which firms have liability for the cleanup costs? [Smith Land Improvement Corp. v Celotex, 851 F2d 86 (3d Cir)]
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