Categories
Legal news

Bay Area Reopening Tracker (4/15/21)

By Robert C. Herr, Robert G. Howard and Allan Van Vliet

As new instances of COVID-19 declines, each County in the San Francisco Bay Area is invisibly slowly in accord with the California’s coloured tier program. The patchwork of local rules and orders is difficult to follow. Our Bay Area Reopening Tracker is here to help. We’ve included each of the eight Bay Area counties, and their respective present grade, Health Order (and additional important orders), and our brief comments about their standing. Please check back in with us–we aim to upgrade the Bay Area Reopening Tracker per week for the near future.…

Categories
Legal news

Bay Area Reopening Tracker (4/15/21)

As new cases of COVID-19 declines, each County in the San Francisco Bay Area is reopening gradually in line with the California’s colored tier system. The patchwork of local orders and rules is difficult to follow. Our Bay Area Reopening Tracker is here to help. We have included all the eight Bay Area counties, as well as their respective current grade, Health Order (and additional important orders), and also our short comments regarding their status. Please check back in with us–we aim to update the Bay Area Reopening Tracker per week for the foreseeable future.…

Categories
Legal news

Connection Corner: Gensler’s Ryley Poblete

By Pillsbury’s Construction & Real Estate Law Team

The Real Estate and Construction business could possibly be enormous, but as with all businesses, it comes down to the folks who make it all come together. From time to timewe love to profile a few of those individuals.
Ryley Poblete is a Senior Designer with global design and design firm Gensler, having spent the better part of the previous decade working at the organization’s Sciences Practice creating a portfolio of work centered around life sciences. An avid runner, urbanist, photographer, artist and policy enthusiast, Ryley are available, in his spare time,”studying the newest Economist or digging into a job’s context to actually specify a new bit of architecture at the cities” where he operates. Asked how he’d describe his occupation into a layperson, Ryley adds,”I use developers and biotech customers in planning and structuring developments to best match their situation.”
Read’…

Categories
Legal news

Link Corner: Gensler’s Ryley Poblete

The Real Estate and Construction business may be huge, but as with all industries, it comes down to the folks who help make it come together. From time to timewe love to profile a few of those individuals.
Ryley Poblete is currently a Senior Designer with international design and design firm Gensler, having spent the better part of the last decade working in the corporation’s Sciences Practice creating a portfolio of work centered throughout life sciences. An avid runner, urbanist, photographer, artist and coverage enthusiast, Ryley can be found, in his spare time,”studying the newest Economist or digging into a project’s context to really specify a new piece of architecture in the cities” where he functions. Asked how he would describe his occupation into a layperson, Ryley adds,”I use developers and biotech customers in planning and structuring improvements to best match their position.”
Tell us about an interesting project you are working on.
Poblete: Over the past year and a half, I have been focusing on a project referred to as the Fenway Center life science campus. It’s a 22-story, almost one-million-square-foot development within the Massachusetts Turnpike. It’ll be one of the largest fresh air rights projects in the Boston region of the previous 40 years. The project is for our customers IQHQ and Meredith Management. Meredith Management has been working with this project for 20 years, establishing the funds and also the first phase of the project. When the next phase came around, IQHQ brought in the capital to really take the development to another level. The Principals in our Boston office developed a great relationship with our spouses at IQHQ, and that has resulted in a portfolio of projects which are defining this present wave of lifestyle investment throughout the nation. The Fenway Center endeavor will probably have one of the largest automated garage programs in the nation and will likely be paired with a playground which will be named Life Science Park: A Monument to Life Sciences and Public Health. The state-of-the-art lifestyle arts campus will anchor a study, academic and medical district between Kenmore Square and the Longwood Medical and Academic Area, one of our nation’s premier research and treatment centres.

Poblete: My proudest professional moment has to be attaining a permit for our customers for the deck which will support the Fenway Center project in Boston. Being that it’s such a gigantic air rights project and a few of Boston’s largest air rights projects because the Big Dig, it’s an wonderful team win all around. The efforts which have gone into achieving this project from the possession group and our collective design staff have been sport changing. Second to this was attaining approval for your Fenway Center project to move ahead by the BPDA and the BCDC. If you’ve worked in Boston, it’s a fairly amazing day when you get this vote of acceptance.
When outside work, how do you unwind?
Poblete: Running is your greatest kind of”zoning out” for me personally. I will often either begin my afternoon or finish it with jogging. In addition, for the longest period, I played football competitively–I only stopped due to schedules in University–but I still love a wonderful game.
Before we let you go, tell us something you consider key to your project.
Poblete: Obsession is often viewed as a negative, but in regards to incorporating a new bit of architecture to the city, obsession and focus is essential.…

Categories
Legal news

What Do You Need to Know? Non-U.S.-Based Investors Face the Disclosure Regime of this Corporate Transparency Act.

From the Spring 2021 issue of AFIRE Summit Journal, Pillsbury New York-based Real Estate partner Andrew Weiner discusses the Organization Transparency Act and disclosure Conditions for non-U.S. based investors.

Summit Journal is the official publication of AFIRE, the federal institution for international real estate investors focused on commercial land in the U.S.
Read Andy’s full take here.…

Categories
Legal news

What Do You Want to Know? Non-U.S.-Based Investors Face the Disclosure Regime of their Corporate Transparency Act.

From Pillsbury’s Construction & Real Estate Law Team

From the Spring 2021 dilemma of AFIRE Summit Journal, Pillsbury New York-based Real Estate partner Andrew Weiner discusses the Corporate Transparency Act and disclosure requirements for non-U.S. based investors. Summit Journal is the official publication of AFIRE, the national institution for international real estate investors focused on commercial land in the U.S.
Read Andy’s full take here.…

Categories
Legal news

What Do You Want to Know? Non-U.S.-Based Investors Face the Disclosure Regime of this Organization Transparency Act.

From the Spring 2021 Dilemma of AFIRE Summit Journal, Pillsbury New York-based Real Estate partner Andrew Weiner discusses the Corporate Transparency Act and Regulation requirements for non-U.S. Established Traders.

Summit Journal is the official book of AFIRE, the federal institution for global property investors focused on commercial property in the U.S.
Read Andy’s full take here.…

Categories
Legal news

Hydrogen Powers Its Way in Proof of Concept to Reality in Real Estate

Hydrogen is the new buzzword in each industry, and real estate is no exception. Hydrogen doesn’t emit carbon dioxide when burnt and might therefore cut the climate impact of structures, which in turn represent one of the largest emitters of greenhouse gases following sector and surface transportation. To the degree that hydrogen is to become an important power source worldwide, it will need to go into the domestic power market. The initial step is apparently the evolution of pilot villages.
In the united kingdom, there are numerous hydrogen samples in uninhabited possessions or within closed private networks. There are a few uninhabited houses on a Royal Air Force base in Cumbria which are heated with hydrogen as well as a personal gas system at Keele University that utilizes 20 percent hydrogen combined together with natural gas. Moreover, there is a small village near Newcastle that’s being used as a test instance: for a span of 10 months beginning in spring 2021up to 20 percent hydrogen will likely be blended into the natural gas system so that over 650 homes may be partly heated by hydrogen. It is expected that a small number of further villages are going to be able to warm their houses with 100 percent hydrogen as soon as 2022, with up a scale to really have a hydrogen town by 2030.
In the United States, communities are investigating ways to integrate hydrogen into their infrastructure. [email protected] at Texas and Beyond is concentrated on designing, constructing and operating the first dedicated renewable hydrogen system, which will integrate all elements of the hydrogen economy to the neighborhood community. In doing so, the job will create zero-carbon hydrogen, and this will then be distributed, stored and ultimately used by quite a few end-users employing the [email protected] system. By way of example, the job will create hydrogen onsite via electrolysis, which will then be distributed within the machine infrastructure to energy cells to the Texas Advanced Computing Center at UT-Austin and to provide hydrogen for a gas station to get a fleet of fuel cell vehicles.
Back in Japan, Toyota has broken ground to a 175-acre”prototype city of the future,” that Toyota states will be a”fully connected ecosystem powered by hydrogen fuel cells.” The project, that Toyota is calling the”Woven City,” will soon be constructed at the site of a former vehicle manufacturing facility. The city will house about 2,000 people, consisting mostly of Toyota workers and their households. Toyota will provide transportation for the town’s residents via the Toyota e-Palette, that can be battery and autonomous. Constructing homes is not new for Toyota–that the company has built homes since 1975 and also a Toyota subsidiary now reportedly constructs approximately 15,000 per year. If Toyota is successful in creating its hydrogen power infrastructure at the Woven City, we might see it apply similar technology in its real estate developments across Asia.
Japan has been at the forefront of the hydrogen revolution and intends to make hydrogen a significant power source in the nation in the near future. Homeowners in Japan are able to buy hydrogen fuel cells to be used in their residences for over a decade. Over 265,000 Ene-Farms are set up, and Japan has the ambitious goal of installing over five million units by 2030. Larger-scale units are set up in multifamily properties, as well. Many Japanese manufacturers have also begun focusing on pure hydrogen fuel cells for both commercial and residential real estate. Panasonic, for example, hopes to begin the sales of its own pure hydrogen fuel cells for residences in 2021. Similarly, Toshiba ESS set up a pure hydrogen fuel cell system at a brand new Tokyo hotel, which is anticipated to fulfill the hotel’s energy requirements and create hot water to be used in its chambers.
With further scaling, within an global basis, these hydrogen fuel cell technology could be set up in homes and offices around the world and provide an alternative to the way buildings now consume power.
For the large part, scaling of hydrogen at the domestic power market still needs engagement of the gas system companies for supply along with a sufficient supply of blue or green hydrogen (i.e., hydrogen produced without emitting carbon dioxide into the atmosphere). Sponsorship of authorities, such as by way of big stimulus packages to infrastructure and industry, alongside private business investment appears to remain the key to ensuring the upstream supply and distribution networks are prepared to distribute hydrogen for large-scale use in the domestic power market. However, the multiplication of test instances, pilot projects and new technologies paint a favorable picture of progress in this business.
RELATED ARTICLES
Hydrogen–A Vital Element in the EU’s Green Planning
The Energy Transition & Hydrogen…

Categories
Legal news

Hydrogen Powers Its Far in Proof of Concept to Reality in Real Estate

Hydrogen is the new buzzword in each industry, and real estate is no exception. Hydrogen does not emit carbon dioxide when burnt and may therefore decrease the climate change of buildings, which in aggregate represent one of the largest emitters of greenhouse gases after industry and surface transportation. To the extent that hydrogen is to become a significant power supply globally, it is going to have to go into the domestic power industry. The very first step is apparently the development of pilot villages.
In the united kingdom, there are many hydrogen samples in uninhabited properties or within closed private websites. There are some uninhabited homes on a Royal Air Force base in Cumbria that are heated with hydrogen in addition to a private petrol system in Keele University that utilizes 20 percent hydrogen blended with natural gas. Additionally, there is a little village near Newcastle that is being used as a test case: for a period of 10 months starting from spring 2021, as much as 20 percent hydrogen will be blended into the natural gas system to ensure over 650 houses can be partly heated by hydrogen. It’s expected that a few of further villages are going to be able to warm their houses with 100 percent hydrogen when 2022, with up a scale to really have a hydrogen city by 2030.
In the USA, communities are exploring ways to incorporate hydrogen into their infrastructure. [email protected] in Texas and Beyond is concentrated on designing, constructing and managing the first dedicated renewable hydrogen system, which will incorporate all parts of the hydrogen economy in to the local community. In doing so, the project will likely produce zero-carbon hydrogen, which will then be distributed, stored and finally employed by quite a few end-users employing the [email protected] system. As an instance, the project will produce hydrogen onsite via combustion, which will then be distributed within the machine’s infrastructure to energy cells for your Texas Advanced Computing Center in UT-Austin and also to supply hydrogen for a fuel station for a fleet of vehicles.
In Japan, Toyota has broken ground to a 175-acre”prototype city of the future,” that Toyota says are a”fully connected ecosystem driven by hydrogen fuel cells” The city will house about 2,000 individuals, consisting mainly of Toyota employees and their households. Toyota will provide transportation for the town’s residents via the Toyota e-Palette, that can be battery and autonomous. Toyota, a longtime advocate for hydrogen-powered vehicles, will use the city as a testing ground for the hydrogen-powered infrastructure and vehicles. Constructing homes isn’t new for Toyota–the company has assembled houses since 1975 and a Toyota subsidiary now reportedly constructs approximately 15,000 per year. If Toyota is successful in developing its hydrogen energy infrastructure in the Woven City, we may see it use similar technology in its own real estate improvements around Asia.
Japan has been in the forefront of the hydrogen revolution also intends to make hydrogen a significant energy supply in the country in the not too distant future. Homeowners in Japan have been in a position to buy hydrogen fuel cells for use in their houses for more than ten years. Over 265,000 Ene-Farms have been installed, and Japan has the challenging objective of installing more than five thousand units by 2030. Larger-scale units have been installed in multifamily properties, as well. Some Japanese manufacturers also have started concentrating on hydrogen fuel cells for commercial and residential real estate. Panasonic, for instance, expects to begin the sales of its pure hydrogen gas cells for residences in 2021. Similarly, Toshiba ESS installed a hydrogen fuel cell system in a brand new Tokyo hotel, which will be predicted to satisfy with the hotel’s electricity requirements and produce hot water for use in its own rooms.
With further scaling, in an worldwide basis, such hydrogen fuel cell technology can be installed in homes and offices around the globe and provide an alternate to the way buildings currently consume power.
For the most part, climbing of hydrogen in the national energy market still needs involvement of the gas system companies for distribution along with a sufficient supply of blue or green hydrogen (i.e., hydrogen generated without emitting carbon dioxide to the atmosphere). Sponsorship of authorities, such as by way of large stimulus packages to industry and infrastructure, alongside private business investment seems to remain the best technique for ensuring the upstream distribution and supply systems are prepared to distribute hydrogen for large scale usage from the national power industry. However, the multiplication of test cases, pilot projects and new technologies paint a positive picture of advancement within this business.
RELATED ARTICLES…

Categories
Legal news

Hydrogen Powers Its Far from Proof of Concept to Reality in Real Estate

By Victoria Judd, Sidney L. Fowler and Robert Howard

Hydrogen is the new buzzword in every business, and property is no exception. Hydrogen does not emit carbon dioxide when burnt and may therefore decrease the climate change of structures, which in turn represent among the biggest emitters of greenhouse gases after industry and surface transport. To the extent that hydrogen would be to become an important power source worldwide, it is going to need to go into the national power market. The very first step appears to be the evolution of pilot villages.
Read on →…

Categories
Legal news

Hydrogen Powers Its Way from Proof of Concept to Reality in Real Estate

Hydrogen is the newest buzzword in every business, and real estate is no exception. Hydrogen doesn’t emit carbon dioxide when burned off and could therefore lower the climate change of structures, which in turn represent one of the biggest emitters of greenhouse gases after sector and surface transport. To the degree that hydrogen would be to become an important power supply worldwide, it is going to need to go into the national power industry. The very first step appears to be the evolution of pilot villages.
In the UK, there are several hydrogen samples in uninhabited properties or at closed private websites. There are a few uninhabited homes on a Royal Air Force base in Cumbria that are exclusively heated with hydrogen in addition to a private gas network at Keele University that utilizes 20 percent hydrogen blended with natural gas. Additionally, there’s a small village near Newcastle that’s used as a test instance: for a span of 10 months beginning in spring 2021, up to 20 percent hydrogen will be mixed into the natural gas network to ensure more than 650 homes can be partly heated by hydrogen. It is expected that a few further villages are going to be able to heat their homes by 100 percent hydrogen when 2022, with a scale up to really have a hydrogen town by 2030.
In the USA, communities are investigating ways to integrate hydrogen into their infrastructure. One project being funded by the Department of Energy’s [email protected] initiative, [email protected] in Texas and Beyond, is a collaborative effort between Frontier Energy and the University of Texas. [email protected] in Texas and Beyond is focused on designing, constructing and managing the first dedicated renewable hydrogen network, which will integrate all elements of the hydrogen economy in to the local community. In doing so, the job will produce zero-carbon hydrogen, which is then going to be distributed, stored and ultimately employed by numerous end-users employing the [email protected] system. As an instance, the job will produce hydrogen onsite via electrolysis, which is then going to be distributed over the machine’s infrastructure to power fuel cells for your Texas Advanced Computing Center in UT-Austin and also to supply hydrogen for a fuel station for a fleet of vehicles.
Back in Japan, Toyota has broken ground on a 175-acre”prototype city of the near future,” that Toyota says will be a”fully connected ecosystem driven by hydrogen fuel cells.” The project, that Toyota is calling the”Woven City,” will be built at the website of a former automobile manufacturing center. The city will house roughly 2,000 individuals, consisting mostly of Toyota employees and their families. Toyota will provide transportation for the town’s residents via the Toyota e-Palette, that will be cordless and autonomous. Toyota, a longtime advocate for hydrogen-powered vehicles, will utilize the city as a testing ground for the hydrogen-powered infrastructure and vehicles. Constructing homes isn’t new for Toyota–the firm has assembled houses since 1975 and also a Toyota subsidiary now reportedly constructs roughly 15,000 per year. If Toyota is successful in developing its hydrogen energy infrastructure in the Woven City, we might see it apply similar technology in its own real estate improvements around Asia.
Japan has been in the forefront of the hydrogen revolution and plans to make hydrogen a major energy supply in the country in the near future. Homeowners in Japan are in a position to purchase hydrogen fuel cells to be used in their residences for over a decade. Over 265,000 Ene-Farms are set up, and Japan has the ambitious goal of installing over five thousand units by 2030. Larger-scale units are set up in multifamily properties, as well. Many Japanese manufacturers also have begun focusing on hydrogen fuel cells for commercial and residential real estate. Panasonic, for instance, expects to begin the earnings of its own pure hydrogen gas cells for residences in 2021. In the same way, Toshiba ESS set up a hydrogen fuel cell system in a new Tokyo resort, which will be predicted to fit with the hotel’s energy requirements and produce hot water to be used in its own rooms.
With further scaling, within an worldwide basis, such hydrogen fuel cell technology could be set up in homes and offices around the world and supply an alternative to how buildings consume electricity.
For the most part, scaling of hydrogen in the national energy market still needs engagement of the gas network companies for distribution and a sufficient source of blue or green hydrogen (i.e., hydrogen generated without emitting carbon dioxide to the atmosphere). Sponsorship of authorities, such as by way of large stimulus packages to industry and infrastructure, along with private business investment appears to stay the best technique for ensuring that the upstream supply and distribution components are ready to distribute hydrogen for large-scale usage in the domestic electricity industry. On the other hand, the multiplication of test cases, pilot projects and new technologies paint a favorable image of advancement in this industry.
RELATED ARTICLES…

Categories
Legal news

Evaluating Smart Home Technology: It’s About More Than the Most Important Thing

Outfitting a commercial real estate space with intelligent technology can be a substantial cost. While the long-term advantages and tactical improvements we’ve discussed above might make that investment worthwhile, the appraisal period is crucial to guarantee an impactful ROI. Property developers, owners, and managers must undertake a rigorous examination process to make sure the technology procurement complies with the project total financial plan. And this is not only about obtaining the cost right. If the technology does not satisfy the requirements of this space, then all the smart technology on the planet will not stop the job from being a sunk cost.
Do the Research Which You Know…
The Tech. Though the RFP is a key step of the procurement process, a more informal research phase should be undertaken . Smart engineering is a rapidly evolving field, and before reaching out to sellers, the company must ensure that it knows what is available–both in regard to the sorts of technology that may be executed, and the various businesses that provide solutions. Gathering this information early can yield results that align more closely with a particular building’s demands.
The Metrics. Cost is an important factor in any transaction, but a corporation shouldn’t drop sight of other crucial factors that can determine if it’s the smart technology strategy is powerful. Given the array of intelligent technologies, these extra considerations might vary from project to project. Think about what aspects of a specific technology are most important for a successful implementation (e.g., security, interoperability, etc.), and ensure that the inner stakeholders are now taking these variables into account when preparing for the RFP process.
RFP and Vendor Selection
Competition. It’s intuitive that seller competition is a key tool for negotiating favorable terms within a transaction. What might not be intuitive is that beginning contract negotiations with a couple sellers may ultimately lead to faster resolution with the eventual down-selected seller. A competing seller is more inclined to make concessions, and do so fast, because it’s still attempting to”make the purchase .” A seller that understands it has won the company is significantly more likely to become entrenched because of its own positions and less inclined to offer accommodations favorable to the client. We always advise customers to not end a competitive environment too early!
Strategic communication in this phase is also key. It’s completely okay to”guide” the competing sellers as to if their positions, prices and solutions are aggressive in the RFP. Nevertheless, the client has to be cautious to not show a competing seller’s confidential details. Customers have to be aware of confidentiality and non-disclosure requirements when deciding how to use this information that’s gathered.
Timeline. Installation and setup of smart technologies takes time. Work backwards from a quote of when the technology has to be in production and fully operational (is there an approaching marketing push or spacious house, where the technology should already be on display?) , to provide the inner stakeholders enough time to develop an RFP, elicit responses and assess the options. A compressed timeline generates pressure to select a seller, undercutting a number of the advantages that have competition.
Keep in mind that negotiating the deal requires time, especially after seller down option. Factor contract discussions into the timeline. While there is an understandable urge to”get smart” when you can, hurrying the process is only going to increase the leverage sellers have. Once sellers know the clock is moving, they can utilize the clock from the client, and their best offers might not materialize when they think an eagerness to concur is trumping the dedication for locating the maximum quality offering.
The RFP method is that the opportunity to ask questions, seek clarifications, and find out what kind of spouse the seller will be. Deploying sound discussion strategies at this point is going to end in a more successful procurement process.
When Metrics Meet Commitments–Be Wary of Buzzwords
In analyzing RFP answers, it can be easy to drop sight of this”why.” The metrics that were researched during the test period and highlighted throughout the RFP process shouldn’t be lost. The glossy, glistening RFP answers could be full of buzzwords and irrelevant optional solutions, conjuring exciting dreams of a digitization overhaul. But remember that the seller is hoping to generate a sale, and buzzwords don’t always align with reality.
The buzzword trap aside, there could possibly be vendors that offer an impressive service, but the fit might not be right. The technology might have compatibility or aesthetic issues, regardless of the guarantee of exceptional performance.
Mapping the metrics driving the job to the offerings explained by the sellers is the most essential thing to consider. Cost is one metric, but remember about other variables (like security, interoperability, range of use, etc.) that will determine whether the smart technology approach is a triumph.
Looking Ahead
Once the RFP process is full along with a vendor is selected, the contracting process starts. Consider stakeholder continuity, where a few members of the group involved in the RFP carry over and are consulted throughout the contracting process. Insight into sooner business talks will result in a more successful negotiation. Stay tuned for in depth advice on the contracting process.
RELATED ARTICLES
Smart Technology in Commercial Real Estate…

Categories
Legal news

Evaluating Smart Home Technology: It’s About More Than the Bottom Line

Outfitting a commercial property area with smart technology can be a substantial cost. While the long-term advantages and strategic improvements we’ve discussed before can make that investment worthwhile, the appraisal period is critical to ensure an impactful ROI. Home developers, owners, and managers must undertake a rigorous evaluation process to be sure the technology procurement complies with the project total financial plan. And this is not only about obtaining the cost right. If the technology does not meet the requirements of this space, then all the smart technology on the planet will not stop the project from being a reduced cost.
Continue reading →…

Categories
Legal news

Assessing Smart Home Technology: It’s About More Than the Bottom Line

Outfitting a commercial real estate space with smart technology can be a substantial cost. While the long-term benefits and strategic improvements we’ve discussed above can make that investment worthwhile, the test period is important to ensure an impactful ROI. Property developers, owners, and managers should undertake a rigorous appraisal procedure to be sure the tech procurement complies with the project’s overall financial plan. And this isn’t just about obtaining the cost right. If the tech does not meet the requirements of this space, then all the wise technology on the planet won’t prevent the job from becoming a reduced cost.
Do the Research Which You Know…
The Tech. While the RFP is a key measure of the procurement procedure, a more casual research period should be undertaken . Smart technology is a rapidly evolving field, also earlier reaching out to vendors, the business should make sure that it knows what is available–both in regard to the kinds of technology that may be implemented, and the various companies that offer solutions. Gathering this information early will yield outcomes that align more closely with a specific building’s requirements.
The Metrics. Cost is a significant element in any trade, but a firm shouldn’t drop sight of other vital considerations that will determine if it’s the smart tech strategy is powerful. Given the array of smart technologies, these additional considerations might differ from project to project. Consider what aspects of a certain technology are important for a successful implementation (e.g., safety, interoperability, etc.), and also make sure that the inner stakeholders are still taking these factors into consideration when preparing for the RFP procedure.

Competition. It is intuitive that seller competition is a key instrument for negotiating favorable terms within a trade. What might not be intuitive is that starting contract negotiations with a few vendors may finally lead to faster resolution with the eventual down-selected seller. A competing seller is more inclined to make concessions, and do so quickly, because it’s still attempting to”make the purchase .” A seller that understands that it has won the business is a lot more likely to become entrenched in its positions and not as inclined to provide accommodations favorable to the customer. We always advise clients not to end a competitive environment too early!
Strategic communication at this phase is also key. It is perfectly okay to”guide” the competing vendors as to if their rankings, prices and solutions are competitive at the RFP. That said, the customer must be cautious to not reveal a competing seller’s confidential info. Clients must be aware of confidentiality and non-disclosure requirements when determining how to use this information that is gathered.
Timeline. Installation and installation of smart technology requires time. Work backward in a quote of when the tech needs to be in production and fully operational (will there be an approaching marketing push or open home, in which the tech should be on screen?) , to provide the inner stakeholders enough time to develop an RFP, evoke responses and assess the choices. A compressed deadline generates pressure to choose a seller, undercutting many of the benefits that have competition.
Bear in mind that negotiating the contract necessitates time, especially after seller down option. Factor contract negotiations into the deadline. Though there is an understandable impulse to”get smart” when possible, hurrying the procedure is only going to increase the leverage vendors have. Once vendors understand that the clock is ticking, they may use the clock against the consumer, and their very best offers might not materialize if they think an eagerness to agree is trumping the dedication to locating the highest quality offering.
The RFP method is that the opportunity to ask questions, seek clarifications, and also find out what kind of partner the seller will be. Deploying sound discussion approaches at this point is going to end in a more successful procurement procedure.
When Metrics Meet Commitments–Be Wary of Buzzwords
In assessing RFP answers, it can be simple to drop sight of this”why.” The metrics that were researched throughout the test period and highlighted throughout the RFP process shouldn’t be lost. The glossy, glistening RFP answers could possibly be filled with buzzwords and insignificant optional solutions, conjuring exciting dreams of a digitization overhaul. But bear in mind that the seller is trying to generate a sale, also buzzwords don’t always align with truth.
The buzzword trap apart, there might be vendors that offer an impressive company, but the fit might not be appropriate. The tech might have compatibility or aesthetic issues, regardless of the guarantee of exceptional performance.
Mapping the metrics driving the job to the offerings described by the vendors have become the most essential step to take. Cost is certainly one metric, but do not forget about other factors (like safety, interoperability, range of use, etc.) that will decide whether the smart tech approach is a triumph.
Looking Ahead
when the RFP process is complete along with a vendor is selected, the contracting procedure begins. Consider stakeholder continuity, where a few members of the team involved in the RFP take over and so are consulted throughout the contracting procedure. Insight into sooner business discussions will make for a more successful negotiation. Stay tuned for in depth information on the contracting procedure.
RELATED ARTICLES
Smart Technology at Commercial Real Estate…

Categories
Legal news

How Can the Office Market Recover?

Colleague Noa Clark recently joined other Business experts for a discussion of San Francisco office Property in the panel, The Future of Office at San Francisco: The Way Will the Office Market Recover?

Topics included how workplace spaces have been evolving to adapt for changing workforce requirements, tenant perspective on short-term and longterm leasing, powerful changes to leasing strategy and major modifications to design, development and construction to keep offices secure. Click here to view the recording.…

Categories
Legal news

How Will the Office Market Recover?

From Pillsbury’s Construction & Real Estate Law Team

Colleague Noa Clark recently joined other business experts for a discussion of San Francisco office real estate in the panel, The Future of Office in San Francisco: How Will the Office Market Recover? Topics included how workplace spaces are evolving to adapt for changing workforce needs, tenant perspective on short-term and longterm leasing, efficient modifications to leasing strategy and major changes to design, structure and development to continue to keep offices secure. Click here to view the recording.…

Categories
Legal news

How Can the Office Market Recover?

Colleague Noa Clark Newly joined other Business experts for a discussion of San Francisco office real estate at the Board, ” The Future of Office at San Francisco: How Can the Office Market Recover?

Topics included the way office spaces are evolving to adapt for changing workforce needs, tenant perspective on short-term and longterm leasing, effective changes to leasing strategy and major changes to design, construction and development to continue to keep offices secure. Click here to see the recording.…

Categories
Legal news

Pandemic Does Not Satisfy Lease’s Casualty Clause Court Finds

One year into the pandemic, courts have almost uniformly discovered that COVID-19 doesn’t permit commercial tenants to avoid their lease payment obligations. In cases like this, the court continued this trend, judgment that the pandemic was not a”casualty” that permits a tenant to abate its lease payments or cancel its rent. Authors Patrick J. Potter, Christian A. Buerger, Hugh M. McDonald, Patrick E. Fitzmaurice, and Jonathan Doolittle talk about a new case from the Southern District of New York that expands the trend of courts enforcing rentals against tenants forced to close because of the impact of the COVID-19 outbreak in”Court Finds Pandemic Does Not violate Lease’s Casualty Clause.”…

Categories
Legal news

Pandemic Does Not Satisfy Lease’s Casualty Clause Court Finds

From Pillsbury’s Construction & Real Estate Law Team

One year into the pandemic, courts have almost uniformly discovered that COVID-19 doesn’t allow commercial tenants to prevent their lease payment duties. In this case, the court continued that fashion, judgment that the pandemic wasn’t a”casualty” that permits a landlord to abate its lease payments or cancel its rental. Authors Patrick J. Potter, Christian A. Buerger, Hugh M. McDonald, Patrick E. Fitzmaurice, along with Jonathan Doolittle talk a new case from the Southern District of New York that expands the tendency of judges enforcing rentals against tenants forced to close due to the impact of the COVID-19 pandemic in”Court Finds Pandemic Does Not violate Lease’s Casualty Clause.”…

Categories
Legal news

Pandemic Does Not Waste Lease’s Casualty Clause Court Finds

One year to the pandemic, courts have almost uniformly found that COVID-19 does not allow commercial tenants to prevent their lease payment duties. In this case, the court continued that trend, judgment that the pandemic was not a”casualty” that allows a tenant to abate its lease payments or cancel its lease. Authors Patrick J. Potter, Christian A. Buerger, Hugh M. McDonald, Patrick E. Fitzmaurice, and Jonathan Doolittle talk a new instance from the Southern District of New York that expands the trend of judges enforcing rentals against renters forced to close because of the impact of the COVID-19 outbreak in”Court Finds Pandemic Does Not Satisfy Lease’s Casualty Clause.”…

Categories
Legal news

Oregon Tax Court Rejects Department’s Attempt to Ignore Measure 50 Limitation

Zachary T. Atkins and Caroline Koo on Tesoro Logistics Northwest Pipeline LLC v. Department of Revenue, the Oregon Tax Court, Regular Section, held that although a unit of property acquired by a single centrally assessed firm from the other qualified as”new property” for purposes of . Const. Art. XI, § 11 (“Measure 50”), the unit of house’s present maximum assessed value (“MAV”) was kept in the hands of the owner.   Tesoro Logistics Nw. Pipeline LLC v. Dep’t of Revenue, No. TC 5252, 2021 WL 6700471 (Or. Tax Ct., Reg. Div., Feb. 19, 2021).  Consequently, the Oregon Department of Revenue was not entitled to redetermine that the MAV due to their acquisition. Keep on reading about the SeeSALT website.…

Categories
Legal news

Oregon Tax Court Rejects Department’s Attempt to Ignore Measure 50 Limitation

By Pillsbury’s Construction & Real Estate Law Team

Zachary T. Atkins along with Caroline Koo on Tesoro Logistics Northwest Pipeline LLC v. Department of Revenue, the Oregon Tax Court, Frequent Division, held that even though a unit of land acquired by a single centrally assessed company from the other characterized as”new land” for purposes of . Const. Art. XI, § 11 (“Measure 50”), the device of house’s present maximum assessed value (“MAV”) was kept at the hands of the new owner.   Pipeline LLC v. Dep’t of Revenue, No. TC 5252, 2021 WL 6700471 (Or. Tax Ct., Reg. Div., Feb. 19, 2021).  Consequently, the Oregon Department of Revenue was not entitled to redetermine the MAV due to this acquisition. Keep on reading on the SeeSALT website.…

Categories
Legal news

Oregon Tax Court Rejects Department’s Attempt to Discount Measure 50 Limitation

Zachary T. Atkins and Caroline Koo on Tesoro Logistics Northwest Pipeline LLC v. Department of Revenue, the Oregon Tax Court, Regular Section, held that even though a component of property acquired by one centrally assessed company from another characterized as”new home” for purposes of . Const. Art. XI, § 11 (“Step 50”), the unit of property’s present maximum assessed value (“MAV”) has been preserved in the hands of their owner.   Pipeline LLC v. Dep’t of Revenue, No. Tax Ct., Reg. Div., Feb. 19, 2021).  Because of this, the Oregon Department of Revenue was not eligible to redetermine the MAV due to their acquisition. Keep on reading on the SeeSALT blog.…

Categories
Legal news

The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity

Here is a concise report on new environmental law decisions, regulations and laws.
THE U.S. SUPREME COURT
Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
On March 22, 2021, the Supreme Court rejected a petition to review a Presidential decision to invoke the Antiquities Act of 1906 to stipulate as a monument”an area of underwater land about the size of Connecticut” in the Atlantic Ocean. This activity forbids all kinds of economic activity, which forced the filing of lawsuit in the First Circuit challenging this designation. Chief Justice Roberts supported the Court’s denial of certiorari, but commented that a stronger legal case could persuade the Court to review such liberal uses of the Antiquities Act.
THE FEDERAL APPELLATE COURTS

Air Alliance Houston v. EPA
On March16, 2021, the court ruled that it could provide a 90-day stay of lawsuit challenging EPA’s recent revisions to EPA’s Risk Management Rules pertaining to accidental chemical releases from static sources. (See the principles codified at 40 CFR Part 68.)
United States v. Shen Shi
On March 16, 2021, the court declared a transaction keys certainty. An important component of complex and exceptionally expensive offshore deep well drilling operations are”drill riser buoyancy modules,” which are used to neutralize the riser’s burden and the crushing stress of working in these prohibiting areas. The plan of successful modules is accorded trade secret protection, and the theft of such trade secrets may be prosecuted under 18 USC Section 1832.
A severe drought in the region was endangering a secure species of mussels, which a change in downstream water leaks from the dam may alleviate. Before FERC would grant a license variance, it needed to determine whether this would be consistent with the Endangered Species Act. A comprehensive examination of the administrative record resulted in the court to largely conserve the variance granted by the Commission along with also the biological opinions on the ESA issue. The matter was remanded to FERC to review its conclusion that the new dam processes do not violate a Fish and Wildlife regulation regarding purportedly”minor changes.”
The U.S. Court of Appeals for the Second Circuit — New York Department of Environmental Conservation v. Federal Energy Regulatory Commission
Under Section 401 of the Clean Water Act, states must act on petition by a pipeline applicant with a FERC permission for a state water quality certification in one year of their state’s receipt of this program. In this case, determined on March 23, 2021, the NYDEC challenged two orders of FERC that decided that the state waived its 401 certifying authority since it did not act in a timely fashion, arguing that agreements between the country and the offender set aside that statute. However, the court disagreed, and held that, under Section 401, this collapse had the impact of approving the pipeline without the state’s water quality certificate. According to the court:”Section 401 was meant to curb behavior by certifying states that disrupts the regulatory burden determined by the Congress.”
The U.S. Court of Appeals for the Fifth Circuit — Texas Education Agency v. U.S. Department of Education
On March 23, 2021, the court invalidated a whistleblower penalty assessed by the U.S. Department of Education against the Texas Education Agency. Here, a former employee of the Texas Education Agency alleged that the TEA discharged her in retaliation for a whistleblowing complaint she lodged against TEA officers. The agency challenged this allegation, and asserted that the U.S. Department of Education’s action violated the Texas state agency’s sovereign immunity. The court held that, in general, states are immune from national agency adjudication, and the TEA is a state agency which also appreciates this coverage. There is not any evidence that Texas waived its sovereign immunity, and the NDAA did not unambiguously declare that Texas, by accepting federal education funds, waived its sovereign immunity. This ruling could have ramifications in other places.
STATE COURTS

Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure
On March 19, 2021, the court, in a 5-to-4 ruling, held that it did not have jurisdiction, currently, to determine this situation. Panda Power sued ERCOT in state court, alleging that ERCOT’s energy forecasts caused it to start construction on new power production plants, but a revised forecast predicting a decline in energy utilization imperiled its investment. Panda Power alleged fraud and fiduciary breach. ERCOT’s important defense has been that it enjoys sovereign immunity from such lawsuits. From the time that the case was argued and prepared for decision, the Court noted that a number of decisions had yet to be made by the lower courts in this proceeding. This convinced that the majority in the court that it couldn’t rule on these interlocutory rulings. This conclusion was published within days of their current negative weather in Texas, where ERCOT’s sovereign immunity defense was widely discussed and debated.

On March 26, 2021, the Texas Supreme Court decided another energy power instance, reversing the Texas court of appeals in Austin, and maintained that the determination from the Public Utility Commission (PUC) who SWEPCO, an electrical power utility, would include the construction of a brand new solar-powered energy plant in its utility rates, was reasonable and in accord with the law. The new plant was built in 2012, but a panel of PUC administrative law judges decided in 2010 that the expenses of construction were so large that SWEPCO should have ceased the plant’s construction in 2010. The PUC disagreed with this panel and enabled SWEPCO to include most of the construction costs in its rate base because that internal decision was reasonable under the circumstances. The Texas Supreme Court agreed that SWEPCO needed a heavy burden to prove that it acted fairly, which it satisfied. (The court usually grants considerable deference to such rulings from the Commission.)
FEDERAL AGENCIES
EPA
On March 17, 2021, EPA published an Advance Notice of Proposed Rulemaking, inviting comments on its proposal to develop effluent guidelines under the Clean Water Act to control the discharge of PFAS chemicals. Comments are due on May 17, 2021. (See 86 FR 14625.)
Department of the Interior (DOI)
On March 19, 2021, the Principal Deputy Assistant Secretary for Land and Mineral Management spread a memo to all Bureau directors saying that qualitative inspection of many DOI leasing tasks, including NEPA analysis, drilling licenses, wildlife mitigation corridors, etc., are all subject to headquarters review.
CONGRESS
The Environmental Justice for All Act
HR 5986 has been introduced in Congress. It’s entitled this is a complex bill, which necessitates careful analysis. The Findings supply that”communities of colour, tribal and native communities and fossil fuel-dependent communities” are bombarded by environmental dangers.
RELATED ARTICLES

A Court-Side Seat: A Poultry Defense, a Houston Highway plus also a CERCLA Consent Decree that won’t Budge
Even a Court-Side Seat: Coal-Fired Limitations, the Hunt for a Venue Climate Change and New Agency Rules that May or May Not Stick Around…

Categories
Legal news

The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity

By Anthony B. Cavender

Here is a short report on new environmental law decisions, regulations and laws.
THE U.S. SUPREME COURT
Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
On March 22, 2021, the Supreme Court rejected a petition to review a Presidential decision to invoke the Antiquities Act of 1906 to stipulate as a monument”an area of underwater land on the size of Connecticut” in the Atlantic Ocean. This activity forbids all sorts of economic activity, which forced the filing of lawsuit in the First Circuit hard that this designation. Chief Justice Roberts supported the Court’s denial of certiorari, however, remarked that a more powerful legal case may persuade the Court to review such liberal applications of the Antiquities Act.
Continue reading →…

Categories
Legal news

The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity

This is a brief report on new environmental law decisions, regulations and legislation.

Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
About March 22, 2021, the Supreme Court rejected a request to review that an Presidential decision to invoke the Antiquities Act of 1906 to redefine as a monument”that an area of underwater land about the size of Connecticut” from the Atlantic Ocean. This action forbids all kinds of financial activity, which forced the filing of litigation in the First Circuit hard that this designation. Chief Justice Roberts affirmed the Court’s denial of certiorari, but remarked that a stronger legal case may persuade the Court to review such liberal uses of the Antiquities Act.

The U.S. Court of Appeals for the District of Columbia Circuit
Air Alliance Houston v. EPA
About March16, 2021, the court ruled that it could give a 90-day remain of litigation challenging EPA’s recent revisions to EPA’s Risk Management Rules pertaining to accidental chemical releases by stationary sources. (See the principles codified at 40 CFR Part 68.)
United States v. Shen Shi
About March 16, 2021, the court upheld a transaction secrets conviction. An important part of complex and exceptionally costly overseas deep well drilling operations are”drill riser buoyancy modules,” that are used to neutralize the riser’s burden and the crushing pressure of functioning in those prohibiting areas. The design of successful modules is accorded trade secret security, and also the theft of such trade secrets can be prosecuted under 18 USC Section 1832.
A severe drought in the area has been endangering a secure species of mussels, that an alteration in downstream water flows from the dam could alleviate. Before FERC might grant a permit variance, it had to ascertain whether doing so would be consistent with the Endangered Species Act. A comprehensive examination of the administrative record resulted in the court to largely conserve the variance given by the Commission and the biological opinions on the ESA dilemma. The issue has been remanded to FERC to examine its conclusion that the new dam processes do not violate a Fish and Wildlife regulation seeing supposedly”minor alterations “
The U.S. Court of Appeals for the Second Circuit — New York Department of Environmental Conservation v. Federal Energy Regulatory Commission
Under Section 401 of the Clean Water Act, states should act on petition by a pipeline candidate using a FERC authority for a state water quality certification in one year of the state’s receipt of the application. In cases like this, determined on March 23, 2021, the NYDEC contested two orders of FERC that decided that the state waived its 401 certifying authority since it didn’t behave in a timely manner, asserting that arrangements between the state and the applicant set aside that statutory deadline. On the other hand, the court disagreed, and held that, under Section 401, this failure had the effect of approving the pipeline with no state’s water quality certification. As stated by the court”Section 401 has been meant to curb conduct by certifying countries that upsets the regulatory burden set by the Congress.”
The U.S. Court of Appeals for the Fifth Circuit — Texas Education Agency v. U.S. Department of Education
About March 23, 2021, the court invalidated a whistleblower punishment evaluated by the U.S. Department of Education from the Texas Education Agency. The Nation Defense Authorization Act of 2013 (NDAA) prohibits any recipient of federal dollars from retaliating against whistleblowers. Herea former employee of the Texas Education Agency declared that the TEA discharged her in retaliation for a whistleblowing complaint she awakens against TEA officials. The agency contested that this allegation, and asserted that the U.S. Department of Education’s action violated the Texas state agency’s sovereign immunity. The court explained that, generally speaking, countries are immune from national agency adjudication, and the TEA is a state agency that also appreciates this protection. There’s no evidence that Texas waived its sovereign immunity, and the NDAA didn’t unambiguously declare that Texas, by accepting federal education funds, waived its sovereign immunity. This judgment may have ramifications in other areas.
STATE COURTS
The Texas Supreme Court
Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure
About March 19, 2021, the courtroom, at a 5-to-4 judgment, held that it didn’t have jurisdiction, right now, to decide this situation. Panda Power sued ERCOT in court, alleging that ERCOT’s energy predictions made it to begin construction on new electricity production plants, but then a revised prediction forecasting a decrease in energy usage imperiled its investment. ERCOT’s important defense has been that it enjoys sovereign immunity from such lawsuits. By the time that the case has been argued and ready for decision, the Court noted that a number of decisions had to be made by the lower courts in this proceeding. This convinced that the majority in the court that it could not rule on those interlocutory rulings. This conclusion has been published within days of the recent adverse weather in Texas, in which ERCOT’s sovereign immunity defense has been widely discussed and debated.

On March 26, 2021, the Texas Supreme Court decided another energy power instance, reversing the Texas court of appeals in Austin, and maintained that the determination by the Public Utility Commission (PUC) the SWEPCO, an electric power utility, might include the construction of a new coal-fired power plant in its own usefulness prices, was fair and in accord with regulations. The plant has been constructed in 2012, but a board of PUC administrative law judges decided in 2010 that the costs of construction were so high that SWEPCO must have stopped the plant’s structure in 2010. The PUC disagreed on this panel and allowed SWEPCO to add the majority of the construction costs in its rate base because that internal decision was fair under the circumstances. The Texas Supreme Court agreed that SWEPCO had a heavy burden to prove that it acted reasonably, which it fulfilled. (The court usually grants considerable deference to such rulings by the Commission.)
FEDERAL AGENCIES
EPA
About March 17, 2021, EPA published an Advance Notice of Proposed Rulemaking, encouraging comments on its proposal to develop effluent guidelines under the Clean Water Act to control the release of PFAS compounds. Comments are due on May 17, 2021. (See 86 FR 14625.)
Department of the Interior (DOI)
About March 19, 2021, the Principal Deputy Assistant Secretary for Land and Mineral Management spread a memo to all of Bureau managers stating that departmental inspection of numerous DOI leasing activities, including NEPA analysis, drilling permits, wildlife mitigation corridors, etc., are subject to headquarters inspection.
CONGRESS
The Environmental Justice for All Act
HR 5986 has been introduced in Congress. It’s entitled the This is a intricate bill, which demands careful analysis. The Findings provide that”communities of color, tribal and indigenous lands and fossil fuels fuel-dependent communities” are disproportionately burdened by environmental hazards.
RELATED ARTICLES
A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege
A Court-Side Seat: A Poultry Defense, a Houston Highway plus also a CERCLA Consent Decree that won’t Budge
Even a Court-Side Seat: Coal-Fired Limitations, the Hunt for a Venue Climate Change and New Agency Rules that May or May Not Stick About …

Categories
Legal news

A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

The federal courts have issued a few significant environmental law rulings in the past couple of days.

On March 4, 2021, the court held that the deliberative process privilege of the Freedom of Information Act protects from reform in house draft governmental biological opinions which are equally”predecisional” and deliberative. As stated by the court, the opinions, opining about the Endangered Species Act (ESA) effects on aquatic species of some proposed federal rule affecting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure because they do not reflect a”final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary perspective, along with the Services did not deal with them as being the final or last word on the job’s desirability. The Sierra Club, invoking the FOIA, sought many records created by the rulemaking proceedings, and received tens of thousands of webpages. On the other hand, the Service declined to release the draft biological opinions which were created in connection with the ESA consultative process.
Major SCOTUS Environmental Law Examples in April

April 28–PennEast Pipeline Co. v. New Jersey ( a new pipeline instance with overtones of impending domain authority)
FEDERAL COURTS
The U.S. District Court for the District of Columbia — State of New Jersey v. EPA
On March 5, 2021, the DC Circuit decided this case, in which New Jersey sought the review of a last activity of EPA which revised a Clean Air Act new source review reporting and recordkeeping rule in answer to an earlier DC Circuit decision. The court held that New Jersey had standing to prosecute the action, but lost to the merits. The majority reasoned that the bureau had engaged in reasoned conclusion, consistent with the Administrative Procedure Act. 1 judge dissented, opining that New Jersey did not have standing .
The U.S. Court of Appeals for the Fourth Circuit — Mountain Valley Pipeline, LLC v. North Carolina Department of Environmental Quality
On March 11, 2021, the court decided a second natural gas pipeline instance. The construction of the pipeline had been approved by FERC, on condition that the other flaws detected by the Fourth Circuit in four earlier opinions, were adjusted. The state DEQ denied that the pipeline’s application for a Clean Water Act 401 authorization, along with the pipeline appealed this adverse decision to the Fourth Circuit. The court largely upheld the state agency’s action, but remanded the decision back to this bureau for further explanation of its action.
The U.S. Court of Appeals for the Fifth Circuit — Sierra Club vs. Department of the Interior
On March 10, 2021, the court denied a request filed by the plaintiffs to review an order of the Department of Interior the ESA wouldn’t be offended by the construction of a natural gas pipeline from South Texas where ocelots, a species protected by the ESA which have been known to be present in this area, albeit rarely. The court held that the Service complied with the duties under the ESA, and that adequate measures will be taken to mitigate any negative effects. The court reasoned,”In the beginning, the Service considered all that it was required to contemplate… except for what it had been specifically permitted to omit.”
So far, there have been three separate rulings by the district court along with 2 different judgment by the Fifth Circuit. The case had been remanded to the district court in a judgment reported in 968 F. 3d 357 (2020) to enable the court to make additional findings as to this”traceability” element of the Act of God defense in Texas. In summary, the district court discovers that Exxon is liable for more than 14 million in fines and not several hundred million dollars as initially alleged, and that Exxon couldn’t use as an affirmative defense to some allegations that the Texas Act of God defense, triggered by a hurricane, because Exxon didn’t present evidence that Hurricane Ike was not anticipated to influence the centre.
The Ninth Circuit Court of Appeals — United States v. James Philip Lucero
On March 4, 2021 reversed the defendant’s criminal conviction under the Clean Water Act, and ordered the defendant has been given a new trial. The suspect had been convicted of intentionally charging organizations to dump debris and dirt onto lands nearby San Francisco Bay with no permitnonetheless, these lands were categorized as”wetlands” and a”tributary” subject to regulation under the Clean Water Act. The board majority reversed because the defendant must have been charged with illegally discharging”into oceans,” as demanded by the Act. Thus, the presiding judge’s instructions were flawed. The court also held that the revised 2020 CWA principles defining waters of the U.S. weren’t to be accorded retroactive effect. (These rules reduced the regulatory scope of this program) 1 quote on the panel dissented, arguing that the charges must have used the word,”waters of the USA.” The board as a whole seemed to agree that the rules are complicated, but not so complicated as to be unconstitutionally vague.
The Tenth Circuit Court of Appeals — State of Colorado v. U.S. EPA
Soon following EPA and the U.S. Army Corps of Engineers uttered a revised definition of”waters of the U.S.” in April 2020, the State of Colorado asked for and received a preliminary injunction against these principles, remaining their effective date in Colorado. On March 2, 2021, that the Tenth Circuit reversed this decision, holding that Colorado failed to show it would be”irrevocably” harmed absent an injunction. Speculative evidence of harm won’t suffice to support the issuance of a preliminary injunction. The destiny of the new rules will likely be fought in innumerable federal district courts.
RELATED ARTICLES
A Court-Side Seat: A Poultry Defense, a Houston Highway plus a CERCLA Consent Decree that will not Budge
A Court-Side Seat: Coal-Fired Limitations, the Search for a Venue Climate Change and New Agency Rules May or May Not Stick About
Environmental Law — The Year in Review…

Categories
Legal news

A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

From Anthony B. Cavender

The federal courts have issued some substantial environmental law rulings in the previous few days.
THE U.S. SUPREME COURT
U.S. Fish and Wildlife Service v. Sierra Club, Inc..
On March 4, 2021, that the court stated that the deliberative process privilege of their Freedom of Information Act shields from disclosure in-house draft governmental biological opinions that are both”predecisional” and deliberative. As stated by the court, those remarks, opining about the Endangered Species Act (ESA) impacts on aquatic species of a planned federal rule impacting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure since they don’t reflect a”final” agency opinion. Indeed, these ESA-required remarks reflect a preliminary view, and the Services did not treat them like being the final or last term on the job’s desirability. Even the Sierra Club, invoking the FOIA, sought many documents generated by the rulemaking proceedings, and received tens of thousands of pages. On the other hand, the Service failed to release the draft biological opinions that were created in relation to the ESA consultative procedure.
Read →…

Categories
Legal news

A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

The federal courts have issued a few substantial environmental law rulings in the previous couple of days.

U.S. Fish and Wildlife Service v. Sierra Club, Inc..
On March 4, 2021, the court held that the deliberative process privilege of this Freedom of Information Act shields from reform in house draft political biological opinions which are both”predecisional” and deliberative. As stated by the court, the opinions, opining on the Endangered Species Act (ESA) effects on aquatic species of a proposed federal rule affecting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure because they do not signify a”final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary perspective, and the Services didn’t treat them like being the final or last word on the job’s desirability. Even the Sierra Club, invoking the FOIA, hunted many documents generated by the rulemaking proceeding, and obtained tens of thousands of webpages. On the other hand, the Service failed to launch the draft biological opinions which were created in relation to the ESA consultative process.
Significant SCOTUS Environmental Law Examples in April
April 26–Guam v. United States (a CERCLA case)

April 28–PennEast Pipeline Co. v. New Jersey ( a fresh pipeline case with overtones of imminent domain authority)
FEDERAL COURTS
The U.S. District Court for the District of Columbia — State of New Jersey v. EPA
On March 5, 2021, the DC Circuit decided this case, where New Jersey searched the review of a last act of EPA that revised a Clean Air Act new source review coverage and recordkeeping principle in answer to a previous DC Circuit decision. The court held that New Jersey had standing to prosecute this action, but missing to the merits. The majority concluded that the bureau had participated in reasoned conclusion, consistent with the Administrative Procedure Act. 1 judge dissented, opining that New Jersey didn’t have standing .
The U.S. Court of Appeals for the Fourth Circuit — Mountain Valley Pipeline, LLC v. North Carolina Department of Environmental Quality
About March 11, 2021, the court chose the next natural gas pipeline case. The construction of the pipeline had been accepted by FERC, on condition that the other flaws detected by the Fourth Circuit in four earlier opinions, were adjusted. The state DEQ denied that the pipeline’s program for a Clean Water Act 401 empowerment, along with the pipeline sentenced this adverse decision to the Fourth Circuit. The court largely upheld the state agency’s actions, but remanded the decision to the bureau for additional explanation of its actions.
The U.S. Court of Appeals for the Fifth Circuit — Sierra Club vs. Department of the Interior
About March 10, 2021, the court denied a petition filed by the plaintiffs to review the order of the Department of Interior the ESA wouldn’t be violated by the construction of a natural gas pipeline in South Texas where ocelots, a species protected by the ESA which were proven to be present in this region, albeit rarely. The court held that the Service complied with the duties under the ESA, which adequate steps will be taken to mitigate any adverse effects. The court concluded,”At bottom, the Service believed all that it had to contemplate… except for what it had been specifically permitted to omit.”
The Southern District of Texas — Environment Texas Citizen Lobby, Inc. et al. v. ExxonMobil Corporation, et al..
On March 2, 2021, a federal district court in Houston issued its”Second Revised Findings of Fact and Conclusions of Law” within this Clean Air Act citizen suit case brought against Exxon’s Baytown refinery. So far, there were three separate rulings by the district court and 2 separate ruling by the Fifth Circuit. The case had been remanded to the district court at a ruling reported in 968 F. 3d 357 (2020) to allow the court to make additional findings regarding the”traceability” element of standing and the Act of God defense in Texas. In summary, the district court finds that Exxon is liable for over $14 million in penalties and not several hundred million dollars as originally alleged, which Exxon could not apply as an affirmative defense to a allegations that the Texas Act of God defense, triggered by a hurricane, because Exxon didn’t introduce evidence that Hurricane Ike wasn’t expected to affect the facility.
The defendant was convicted of knowingly charging businesses to dump dirt and debris onto lands nearby San Francisco Bay with no license ; however, those lands had been classified as”wetlands” and a”tributary” subject to regulation under the Clean Water Act. The panel majority reversed because the defendant should have been charged with illegally discharging”into oceans,” as required by the Act. Consequently, the presiding judge’s directions were flawed. The court also held that the revised 2020 CWA principles specifying waters of the U.S. were not to be accorded retroactive impact. (These rules reduced the regulatory scope of the program.) 1 quote on the panel dissented, asserting that the fees should have employed the word,”waters of the USA.” The panel as a whole appeared to agree that the rules are complicated, but not too complicated as to be unconstitutionally vague.
The Tenth Circuit Court of Appeals — State of Colorado v. U.S. EPA
Soon after EPA and the U.S. Army Corps of Engineers promulgated a revised definition of”waters of the U.S.” at April 2020, the State of Colorado asked for and obtained a preliminary injunction against those principles, remaining their date at Colorado. On March 2, 2021, that the Tenth Circuit reversed this decision, holding that Colorado failed to show it would be”irrevocably” harmed absent an injunction. Speculative evidence of harm will not suffice to encourage the issuance of a preliminary injunction. The fate of these new rules will probably be fought out in innumerable federal district courts.
RELATED ARTICLES
A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that won’t Budge
A Court-Side Seat: Coal-Fired Limitations, the Hunt for a Venue Climate Change and New Agency Rules May or May Not Stick Around
Environmental Law — The Year in Review…

Categories
Legal news

$1.9 Trillion COVID-19 Relief Package Passed by Congress

President Biden has signed the American Plan Acta 1.9 trillion investment plus stimulus package designed to tackle the continuing COVID-19 pandemic, into law.  Matthew Oresman, Elizabeth Vella Moeller, Craig J. Saperstein, Brian E. Finch, Alexander B. Ginsberg, Aimee P. Ghosh, Zachary M. Kessler, Rose Fowler Lapp discuss the aid bill which contains a new form of stimulus payments, along with dedicated support for state and local authorities, service to enlarge COVID-19 vaccination and testing applications, home support, cybersecurity investments, service to the restaurant industry, and funds for school contingency strategies. The alert, Congress Passes $1.9 Trillion COVID-19 Relief Package also gives an overview of how the bill affects  home, mortgage, utility and rental support.…

Categories
Legal news

$1.9 Trillion COVID-19 Relief Package Passed by Congress

From Pillsbury’s Construction & Real Estate Law Team

President Biden has signed up the American Immigration Plan Acta 1.9 trillion investment plus stimulus package designed to address the ongoing COVID-19 pandemic, into law.  Matthew Oresman, Elizabeth Vella Moeller, Craig J. Saperstein, Brian E. Finch, Alexander B. Ginsberg, Aimee P. Ghosh, Zachary M. Kessler, Rose Fowler Lapp talk about the relief bill which contains a new round of stimulus payments, along with dedicated support for local and state governments, service to enlarge COVID-19 vaccination and testing programs, housing assistance, cybersecurity investments, support to the restaurant industry, and capital for school reopening plans. The alert, Congress Passes $1.9 Trillion COVID-19 Relief Package also gives an overview of how the bill affects  housing, mortgage, utility and rental support.…

Categories
Legal news

$1.9 Trillion COVID-19 Relief Package Passed by Congress

President Biden has signed the American Plan Act, a $1.9 trillion investment along with stimulation package designed to tackle the continuing COVID-19 pandemic, into law.  Matthew Oresman, Elizabeth Vella Moeller, Craig J. Saperstein, Brian E. Finch, Alexander B. Ginsberg, Aimee P. Ghosh, Zachary M. Kessler, Rose Fowler Lapp discuss the aid bill which contains a new form of stimulation payments, together with dedicated aid for state and local authorities, service to expand COVID-19 Legislation and testing plans, housing assistance, cybersecurity investments, support to the restaurant business, and funds for faculty contingency strategies. The alarm, Congress Passes $1.9 Trillion COVID-19 Relief Package also gives an overview of how the bill affects  housing, mortgage, utility and rental support.…

Categories
Legal news

Qualification for Shuttered Venue Operator Grants Extended, Congress Appropriates New Funds

The Rescue Plan Act of 2021 permits Shuttered Venue Operators to Use for the Two Paycheck Protection Program loans along with Shuttered Venue Operator Grants.

The Rescue Plan Act, signed into law on March 11, 2021 and outlined here, includes a short but important section that may allow the recipients of Paycheck Protection Program (PPP) loans issued after December 27, 2020 to stay eligible for grants under the”Grants for Shuttered Venue Operators” (Grants) application, which the Small Business Administration (SBA) has yet to launch. Cecilia C. Wang, Alexander B. Ginsberg, Jenny Y. Liu give additional insights into”Congress Appropriates New Funds, Extends Qualification for Shuttered Venue Operator Grants.”…

Categories
Legal news

Qualification for Shuttered Venue Operator Grants Extended, Congress Appropriates New Funds

From Pillsbury’s Construction & Real Estate Law Team

The American Rescue Plan Act of 2021 permits Shuttered Venue Operators to apply for both Paycheck Protection Program loans along with Shuttered Venue Operator Grants. The American Rescue Plan Act, signed into law on March 11, 2021 and outlined here, comprises a brief but important section that will permit the recipients of Paycheck Protection Program (PPP) loans issued after December 27, 2020 to remain eligible for licenses under the”Grants for Shuttered Venue Operators” (Grants) system, which the Small Business Administration (SBA) has yet to launch. Cecilia C. Wang, Alexander B. Ginsberg, Jenny Y. Liu supply added insights in”Congress Appropriates New Funds, Extends Qualification for Shuttered Venue Operator Grants.”…

Categories
Legal news

Eligibility for Shuttered Venue Operator Grants Extended, Congress Appropriates New Funds

The Rescue Plan Act of 2021 Allows Shuttered Venue Operators to Use for the Two Paycheck Protection Program loans along with Shuttered Venue Operator Grants.

The American Rescue Plan Act, signed into law on March 11, 2021 and outlined here, carries a short but important section that will permit the receivers of Paycheck Protection Program (PPP) loans issued after December 27, 2020 to stay qualified for grants under the”Grants for Shuttered Venue Operators” (Grants) system, that the Small Business Administration (SBA) has yet to establish. Cecilia C. Wang, Alexander B. Ginsberg, Jenny Y. Liu provide additional insights into”Congress Appropriates New Funds, Extends Qualification for Shuttered Venue Operator Grants.”…

Categories
Legal news

Qualifications and Application Guidance for Shuttered Venue Grants

By Pillsbury’s Construction & Real Estate Law Team

On March 5, 2021, the SBA published an summary of eligibility requirements and a preliminary program checklist for your Shuttered Venue Operators Grant (Grant) App. The summary of eligibility requirements identifies ownership limitations, prohibited activities, and business, operational and facility requirements for each type of business potentially qualifying for Grants.  Colleagues Alexander B. Ginsberg, David L. Miller, also Toni Suh talk about the SBA recently published requirements in”SBA Issues Eligibility and Application Guidance for Shuttered Venue Grants.”

Categories
Legal news

Qualifications and Application Guidance for Shuttered Venue Grants

On March 5, 2021, the SBA published an overview of eligibility requirements and a preliminary application checklist for the Shuttered Venue Operators Grant (Grant) Program. The overview of eligibility conditions clarifies ownership restrictions, prohibited activities, and company and operational and facility conditions for every kind of business potentially qualifying for Grants.  Colleagues Alexander B. Ginsberg, David L. Miller, also Toni Suh talk about the SBA recently released requirements in”SBA Problems Qualification and Program Guidance for Shuttered Venue Grants.”…

Categories
Legal news

The Future of Office in San Francisco: The Way Will the Office Market Recover?

From Pillsbury’s Construction & Real Estate Law Team

Join Pillsbury’s Noa Clark as she moderates Bisnow’s”The Future of Office at San Francisco: How Will the Office Market Recover?”  webinar on March 25.
Continue reading →…

Categories
Legal news

The Future of Office at San Francisco: How Will the Office Market Recover?

webinar on March 25.
What You’ll Learn:
How office spaces are evolving to adapt for changing labor needs, like changing layoutsand offices in residential buildings, hybrids, etc..
Tenants’ perspective on leasing office in SF at the short and long term
Powerful changes to leasing plan like micro-leasing, alternatives, etc..
Perks and comforts owners are implementing if their office buildings to attract and keep tenants
Major changes to layout, structure, and development to keep offices secure
How You’ll Do More Business:
Where are there opportunities for development and investment in town? How can employees attract and keep tenants to keep their offices occupied?
Who Attends:
Brokers, owners, investors, developers, construction, architects, designers, financial institutions, government officials and much more!
Why You Should Attend:
Bisnow occasions bring together the largest power players from the business to identify opportunities, build your community and expand your company. Together with the largest audience of commercial real estate professionals on earth, no one knows the way to assist your business more than us. Combine Bisnow as we jump into the office market in San Francisco to analyze its strengths and strategize on its areas of chance.
To learn more and to enroll, please visit the event page.…

Categories
Legal news

Federal Judge Strikes Down CDC’s COVID-19 Eviction Moratorium

By Zachary Kessler, Amanda G. Halter along with Adam Weaver

A federal judge in Texas has declared the Centers for Disease Control and Prevention (CDC) eviction moratorium unconstitutional, holding that Article I’s ability to regulate interstate commerce and enact laws necessary and appropriate for such regulation doesn’t include the capacity to suspend residential evictions on a national foundation. While the court stopped short of devoting immediate injunctive relief, rather relying on the CDC to”respect the declaratory judgment” and draw the Order, the court said that such relief would be available if the government doesn’t obey the decision. With this ruling, the most important prohibition on residential evictions for nonpayment of rent is likely to be raised, and many residential evictions halted or delayed under the Order may start in earnest. While further tenant protections remain in certain locales, this federal ruling raises the probable rate and rate of residential flooding activity across the country.
Read on →…

Categories
Legal news

Federal Judge Strikes Down CDC’s COVID-19 Eviction Moratorium

A federal judge in Texas has declared the Centers for Disease Control and Prevention (CDC) flooding moratorium unconstitutional, holding that Article I’s ability to regulate interstate commerce and also enact laws necessary and appropriate for such regulation does not include the capability to suspend residential evictions on a national foundation. While the court stopped short of issuing instant injunctive relief, rather relying upon the CDC to”honor the declaratory judgment” and withdraw Order, the court stated that such relief would be available in the event the government does not comply with the decision. With this judgment, the most critical prohibition on residential evictions for nonpayment of rent is very likely to be lifted, and many residential evictions halted or delayed under the Order may commence in earnest. While further tenant protections remain in certain locales, this national judgment increases the probable rate and rate of residential eviction activity throughout the nation.
Even the CDC Eviction Moratorium was a nationwide order under the Trump Administration in a bid to reduce the adverse economic impacts of the continuing COVID-19 pandemic on residential renters, and as a general health measure to reduce displacement of people to living situations conducive to the spread of their COVID-19. The fund granted tenants facing eviction due to financial strains brought on by the pandemic to certify in writing for their landlord that they are unable to pay whole rent and that flooding would likely lead to homelessness or induce the individual to dangerous congregate or shared living quarters.
While the Order was criticized at the time of enactment as being exposed to legal challenges because of its broad reach and construction, the Department of Justice successfully defended the first rounds of legal struggles. The court held that a nationwide eviction moratorium is not under Congress’ restricted powers of Article I to pass laws necessary and appropriate to regulate interstate commerce. The court decided that the federal government had never previously invoked these forces, even through the Spanish flu pandemic as well as the Great Depression, which in its discussions, the government didn’t claim that the COVID-19 pandemic resulted in any particular grant of constitutional power. Instead, the Court heldthat the case should be decided on whether Congress, assigning authority to a national agency, has the legislative powers under the Commerce Clause to temporarily suspend tenant evictions on a national foundation.
The Commerce Clause of the U.S. Constitution states that Congress has the power”to regulate commerce with foreign nations, and among the several states and the Indian tribes,” and allows Congress to broadly legislate interstate commerce. Even the U.S. Supreme Court in United States v. Lopez defined interstate commerce to include only the”use of the channels of interstate commerce,” the”instrumentalities of interstate commerce” and”those activities that substantially affect interstate commerce.” The court stated that if the CDC Order is totally valid, it has to fall under the substantial effects on interstate commerce category. Under this factor, the court stated it must assess”the nexus between the neighborhood activity and interstate commerce or national regulation ” which”[h]ere, the controlled activity is not the creation or use of a commodity that’s traded in a global market. Rather, the challenged order regulates property rights in real property–especially, whether an operator may regain possession of their property in an inhabitant.” As such, the essence of possessory interests in real property is inherently area, and the economic relationship between tenants and landlords would be past the”expressly regulated activity” that courts might examine when determining whether such action substantially affects interstate commerce. The court additionally found that the connection between interstate commerce as well as the controlled action, i.e., the moratoria on evictions, is too”attenuated in many dimensions,” failing to maintain the necessary distinction between”what is domestic and what’s local in the activities of commerce.” Without such distinctions, the court wrotethat the government’s arguments sabotage”breakdown at the demarcation of conventional areas of state concern” of intrastate commerce and state police forces. To this conclusion, the court observed, [a]lthough the COVID-19 pandemic persists, so will the Constitution,” granting summary judgment in favour of the plaintiffs challenging the Order.
While the U.S. Department of Justice has yet to comment on the case, the conclusion is Very Likely to be appealed to the Fifth Circuit Court of Appeals. Many in the legal community have already criticized the decision contrary to Supreme Court precedent holding that the rental market for real estate includes the power to regulate individual activities. In the interim, there’s not any nationwide bar on residential evictions. But many states and localities have enacted separate flooding relief steps that remain in effect. The upcoming Congressional COVID-19 relief package, the American Immigration Plan Act, will also probably contain up to $45 billion in lease and utility assistance, eviction prevention actions, and emergency housing vouchers. But neither the House nor Senate versions contains a particular eviction moratorium that may substitute the CDC Order when it’s ultimately removed.
The COVID-19 pandemic has been upend the American housing program, with significant results on tenants and landlords alike. Potentially 10 million Americans, and 18 percent of all tenants, are currently behind on lease. Now that the biggest federal halt to evictions has–at least briefly –been struck down, evictions for nonpayment of rent due to pandemic-related causes might begin where not prohibited by state or municipal legislation. Housing insecurity and homelessness are in an upward trend around the nation, as is the inventory of distressed real estate in some regions and sectors. While the Biden Administration has signaled a commitment to addressing those problems, few concrete nationwide steps are adopted so far. For the time being, tenants and landlords have to continue to navigate rapidly changing local and federal laws pertaining to residential evictions through the pandemic.
RELATED ARTICLES…

Categories
Criminal law

State Republican Lawmakers Move Against Federal Gun Restrictions

In response to the Biden administration’s push for new federal gun-control laws, Republican lawmakers have introduced legislation in at least a dozen states that seek to nullify any new firearm restrictions, such as ammunition limits or a ban on certain types of weapons, and, in some cases, would even make it a crime for local police officers to enforce federal gun laws, reports the Associated Press. A Missouri measure passed by the state House that would allow police departments with officers who enforce federal gun laws to be sued and face a $50,000 fine and the Utah state House passed a bill with a similar provision forbidding the enforcement of federal gun laws. These laws can create confusion for officers who often work with federal law enforcement, said Daniel Isom, a former chief of the St. Louis Police Department who is now a senior advisor for Everytown for Gun Safety. Federal law plays a big role in some areas, such as keeping guns away from domestic violence offenders.

Most of the latest crop of federal nullification proposals focus on police officers inside their states who primarily enforce state rather than federal laws. Federal nullification bills have been introduced in more than a dozen other states, including Alabama, Arkansas, Nebraska, Oklahoma, South Carolina, Tennessee, Wyoming, New Hampshire, North Dakota, South Dakota, West Virginia and Iowa. In Texas, the governor has called for the state to become a Second Amendment sanctuary. Many Republican state lawmakers see attempts to pass federal firearms restrictions as a threat to the Second Amendment.

Categories
Criminal law

Biden Administration Shortens Detention of Migrant Families to 72 Hours

Hoping to prevent the detention of migrant families for weeks or months at a time, the Biden administration plans to release parents and children within 72 hours of their arrival in the United States, a new policy that already is being carried out along the Texas border, reports the New York Times. Immigration and Customs Enforcement will now hold families only for the time required to schedule court dates, conduct COVID-19 tests and arrange for them to be transferred to shelters, where volunteers and aid workers help schedule their travel to join relatives already in the country. Roughly 100 families per day would be processed and released from two existing family residential centers in Texas. Those who test positive for the coronavirus would remain in isolation at a border facility for 10 days. As of Thursday, several dozen migrants traveling as families were being held at a facility in Karnes City, Texas, and more than 300 at another, in Dilley, Texas.

The two detention centers have a combined capacity of 3,200. Erica Schommer, a law professor at St. Mary’s University in San Antonio, called the new 72-hour policy a “positive” sign but cautioned that any detentions of children raised concerns because of research showing that children in such conditions suffered long-term damage. By law, the government cannot keep migrant children in holding facilities at the border for more than 72 hours; it must either transfer them to a shelter or release them, and the government is mostly able to comply. The new policy pertains mainly to the detention centers where many of them are sent next; under the Flores agreement, the government must not detain children in any facility for more than 20 days, and that deadline has often been missed in the past. The release of those families to bus stations in communities struggling with the pandemic has prompted a backlash from conservatives and local leaders, who complain that some of the migrants recently arriving in the United States have tested positive for the coronavirus.…

Categories
Legal news

A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

By Anthony B. Cavender

February saw the customary collection of significant environmental decisions and federal regulatory offenses.
THE FEDERAL COURTS

Luminant Generation v. EPA
The court will likely be grappling with a difficult venue case regulated by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses which were included in the Texas State Implementation Plan (SIP) and then applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and so were reversed. At the national stage, EPA has been involved in litigation on these affirmative defenses and recently excluded by your”SIP Call” the Texas application, which has been pushed out. This EPA decision has been challenged in the DC Circuit (see Case amount 20-1115),with the State of Texas arguing as a intervenor that any issues involving Texas belong in the Fifth Circuit, and not from the DC Circuit since the Act allows regional issues to be decided at the regional federal courts.
Continue reading →…

Categories
Legal news Uncategorized

A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

February saw the typical array of important environmental decisions and federal regulatory offenses.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will soon likely be grappling with a difficult place case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court declared the affirmative defenses which were made part of the Texas State Implementation Plan (SIP) and then applied to particular unpermitted emissions from controlled sources during periods of startup, shutdown or malfunction. These defenses have been challenged from the Fifth Circuit and have been rejected. On the national stage, EPA has been involved in litigation over those affirmative defenses and recently excluded from a”SIP Call” that the Texas application, which was pushed out. This EPA decision is being challenged in the DC Circuit (see Case amount 20-1115),with the State of Texas arguing as a intervenor that any issues involving Texas belong into the Fifth Circuit, and not from the DC Circuit since the Act allows regional issues to be decided at the regional federal courts.
Enbridge plans to replace an present pipeline using a brand new”line 3,” transport oil from Canada to Wisconsin. The plaintiffs sought a preliminary injunction of the foundation that the Corps had not sufficiently considered the effects of potential oil spills. After reviewing the record, the court stated that the plaintiffs had not met their significant burden to show that a preliminary injunction of a job near completion was justified.

On February 17, 2021, the court decided that this complicated and expensive CERCLA (or Superfund) case. The appellants here (such as Union Oil of California) find themselves embroiled in a longstanding CERCLA cost recovery and job dispute, and sought to undo the lower court’s approval of a Consent Decree which will largely bring this dispute to a conclusion. A drum recycling centre was situated in the CERCLA site, situated near North Providence, Rhode Island. Other industrial activities included chemical manufacturingand concentrations of dioxin have been found in a nearby river, so generating a fish advisory. The court affirmed the lower court’s ruling, finding that the judge had clearly mastered the intricate details in this scenario, and some arguments to the result that the court had abused its discretionary powers had been rejected. The court’s conclusion, reviewing the evidence and EPA’s processes, is exceptional.
U.S. District Court for the Middle District of Pennsylvania
Lower Susquehanna Riverkeeper, et al, v. Keystone Protein Company
On February 18, 2021, the court ruled with this Clean Water Act Citizens Suit in which the plaintiffs contended that the suspect, a poultry waste processing centre, had broken its state NPDES permit many occasions by surpassing the plant’s license limits for nitrogen. The defendant claimed that the case ought to be ignored because it’s entered into Consent Orders with Pennsylvania DEP from 2012 and 2017 that require the defendant to substitute its wastewater treatment facility by June 1, 2021. The court rejected this defensebased on the conditions of the federal Clean Water Act (CWA)–since the state equivalent to the CWA, the Pennsylvania Clean Steams Act, wasn’t”roughly comparable” to the Clean Water Act. The court declared that this issue hasn’t been decided by the Third Circuit Court of Appeals.
FEDERAL REGULATORY NOTICES
U.S. Department of Transportation
On February 9, 2021, the DOT advised the people that the licenses required to begin work over the North Houston Highway Improvement Project have been at hand, and any petitions for judicial review must be filed within 150 days of the date of the publication of the note. This is going to be a significant project, involving the replacement of a significant street cutting through the City of Houston and likely displacing many homes and businesses. (View 86 FR 8828.)
Department of the Interior
Also on February 9, 2021, the Department of the Interior issued a note delaying the effective day of rules which will greatly update the present agency enforcement policy regarding the”taking” of migratory birds. (View 86 FR 8715.) The final rule was released on January 7, 2021, and the effective date has been extended until March 8, 2021. The public is invited to submit comments regarding whether the effective date ought to be extended beyond this date. The rule is controversial, so its destiny could be uncertain.
(View 86 FR 8845.) A Presidential task force, to be headed by the Director of Science and Technology Strategy, can set the parameters of the policy for federal agencies. The thrust of the directive seems to incorporate a few of the concepts of a current EPA regulation on scientific evidence, such as the requirement for peer evaluation.
EPA
On February 12, 2021, EPA notified the public that EPA Region 6 has granted the request of the State of Texas that its delegated Clean Water Act NPDES regulatory authority has been augmented to include regulating discharges from oil and gas installations (mainly produced water discharges) in the State of Texas. EPA will maintain authority over offshore oil and gas discharges. (View 86 FR 9332.)
OSHA
On February 16, 2021, the Occupational Safety and Health Administration (OSHA) released a notice of proposed rulemaking, inviting comments on a proposal to modify the existing Hazardous Communication Standard to grapple with the UN’s”harmonized system of classification and labelling of chemicals.” This is a really long note, over 250 pages of Federal Register text. Comments are due by April 18, 2021. (View 86 FR 9576.)
RELATED ARTICLES
A Court-Side Seat: Coal-Fired Limitations, the Hunt for a Venue Climate Change and New Agency Rules that May or May Not Stick About …

Categories
Legal news

COVID and Commercial Lease Bankruptcies

By Pillsbury’s Construction & Real Estate Law Team

Real Estate spouse Christian Buerger and Insolvency & Restructuring spouse Hugh McDonald share COVID’s effect on commercial rentals and a summary of the bankruptcy procedure the latest Swimming Lessons Series presentation.…

Categories
Legal news Uncategorized

COVID and Commercial Lease Bankruptcies

Real Estate partner Christian Buerger and Insolvency & Restructuring partner Hugh McDonald discuss COVID’s impact on commercial rentals and an overview of the bankruptcy process the latest softball Lessons Series presentation.…

Categories
Legal news

Smart Technology in Commercial Real Estate

By James W. McPhillips and Rachel Newell

“Hey Siri…””Alexa…””Okay Google…” These are just a few of the buzzwords and phrases which have entered day-to-day vocabulary as a result of the burst of clever technologies. Internet of Things (IoT) apparatus are present in our cars, in our offices and our bodies. But is smart technologies much more widespread than in our houses. The array of services which can be found combined with the rising number of organizations and service providers keen to innovate, should only grow this tech’s market share within the next few years.
Continue reading →…

Categories
Legal news Uncategorized

Smart Technology in Commercial Real Estate

“Hey Siri…””Alexa…””Alright Google…” These are simply a few of the buzzwords and phrases that have entered day-to-day vocabulary as a result of the explosion of smart technology. Internet of Things (IoT) apparatus are present in our cars, in our workplaces and on our own bodies. But nowhere is smart technology more widespread than in our houses. The collection of services that can be found coupled with the rising number of organizations and service providers eager to innovate, ought to just increase this technology’s market share in the next several years.
In the United States, at least a third of families reside in rented units, and also one of those below 30 years older, this amount is almost 50 percent. Smart home technology is important to this younger set of renters, as a single research company decided that millennials will be prepared to cover 20 percent more per month for components that contain such technology.
Home developers, managers and owners will need to take notice. There are not just significant added advantages to deploying this technology in structures, but also significant concerns to work through. Crafting a thorough smart technology program at the outset will help businesses reap the benefits while evading possible pitfalls.
Advantages of IoT around the Homefront
Sharpening those Selling Points: whenever the big-ticket items such as square footage, price and place are relatively equal, it is the smaller perks that help customers make a choice. Tech that makes utilizing the space simpler is a strong selling point. Automated locks, smart safety programs, smart speakers, programmable thermostats and other gadgets make the day-to-day existence in the area that considerably more seamless. Thoughtful deployment of those technologies indicates to a customer who the landlord is considering the needs of renters and is dedicated to continuing innovation.
Reducing Prices of Property Management: The advantages of smart technology do not just flow into the end users. Tired of renters leaving lights on in common areas? Smart lighting may make up to your forgetfulness and cut down on unnecessary electricity usage. Consider an update to some smart HVAC system for long-term savings. And you’ll find far more savings to be needed formerly data analytics are leveraged. Smart technology’s set of use information at a home can help recognize trends and adjust resource deployment accordingly.
Supplying Pandemic-Proofing Assist: While the investments made in smart technology will be useful in a post-COVID-19 planet, they might also bring reassurance as the pandemic rages. Automating high-touch surfaces (thermostat dials, ingress and egress points) and lessening the demand for close proximity interactions between staff and tenants will improve health and safety measures. The wellbeing of building occupants may be aided by using those smart technologies.
Considerations for Strategic Deployment of IoT
Understanding the Needs: The test period is critical. Outfitting an entire building is a significant investment, and also different technology options will need to be thought about. Big brands have crafted rival offerings–how can a house evaluate these solutions? Can a specific solution be requested as a trial? Property developers and managers should not dismiss the worth of this RFP process and creating the vendors compete for company. As part of this evaluation, think about the budget for your job and the technical specifications that are most significant to this smart technology plan (e.g., the number of users can be linked to a single account, what safety protections are in place, what is the device’s scope, etc.). The latticework of standards may be different building to building or perhaps for different usage cases round floors of the identical building. It’s not sufficient to state the property employs smart technology; it has to be the sort of smart the area needs. Otherwise, it is just a habit that customers may see through.
Smarter Contracting through LeverageAs a business level customer, a commercial real estate company may be in a position to leverage its purchasing power into more favorable contractual terms. This may include the seller committing to greater service levels (keeping it accountable for its technology’s functionality ), lower prices given the bulk purchase, and more powerful indemnification provisions and guarantees (protecting the company in the event of seller mistake ). This isn’t an exhaustive listing, and the larger the cost, the greater leverage there’s.
Maintaining Privacy Concerns in the Forefront: You will find a plethora of privacy concerns which include deploying smart technology, both from a regulatory and customer relationship standpoint. The threshold issue is, how much data will the development or property management company be accessing?
On the other hand, exactly how is the technology explained to tenants? Naturally, the technology’s benefits are a selling point, however, is access to this data addressed? Perhaps consumers will not care their preferred temperature range is known. However, what about a safety camera footage? Consider consumer comfort and craft data retention policies and policies for how employees access this data. Crucially, an individual has to craft a safety policy that offers robust protections for any data that is saved.
On the side, what regulations and laws can influence the deployment of the smart technology? Are there laws about data retention or collection of biometric info? Analysis has to be done for each building and every technology for each jurisdiction. What’s fine in New York for industrial tenants might not be okay in a California apartment building. Don’t anticipate the compliance framework to remain static–in the past year alone there was increased legislative action, and that trend will continue. Companies will need to know about constraints at the outset (and track changes in the regulatory arena ) so that they could design an effective and lawful smart tech strategy.
Regardless of the perceived advantages or worries, property owners may be certain of one thing: the typical”IoT IQ” of home and business properties will probably continue to grow, as will the research expectations of customers living and working in those areas. Even as compliance frameworks older and privacy issues are recognized and defused, technology, inevitably, will remain at least a few decades ahead. In future posts, we’ll delve more deeply into what this implies for property owners hoping to completely gain from smarter houses while keeping an eye out for your upcoming technological wrinkle likely to arrive at the doorstep.…

Categories
Legal news

The Real Estate Market – Warehouses, Ports and Addition by Subdivision

By Pillsbury’s Construction & Real Estate Law Team

In episode #26 of Industry Insights tradition, Steve Hamilton joins host Joel Simon to examine specific segments of the real estate market and relevant funding that remained solid in the midst of this pandemic.
Read →…

Categories
Legal news Uncategorized

The Real Estate Market – Warehouses, Ports and Addition by Subdivision

All of us know the real estate sector took a beating throughout the least year or so, however, it wasn’t all doom and gloom. In particular, you stay fairly busy in some specific segments of the real estate fund market, mainly for lenders but such as on a borrower-side trade in November that at the time was the biggest hotel sale in funding because the onset of COVID-19 in the first quarter of 2020. Can you tell us about your expertise in a few of those flourishing areas of the housing market?
Steve Hamilton: Sure. As we know, 2020 was a little bit of a dumpster fire for the real estate business, but there were several highlights also there were some places which did boom. We saw a great deal of action, at least at the construction loan sector of everything I do, between industrial buildings and warehouses such as distribution facilities. We saw numerous retail jobs which ordinarily people would believe were fighting during stay-at-home orders, even throughout COVID, but a few developers and retailers really found opportunities there. An instance –at many of shopping centers where you had the likes of Toys-R-Us along with other insolvent firms, there was space which was available and you saw Amazon, as an instance, come in fairly hard in the past half of the year rebranding those shopping facilities or those stores with areas like their four-star stores where they bring goods direct to customers. Instead of simply having them delivered to their front door they’d put some of the most popular things which are trending on their online portals into brick-and-mortar where folks want immediate gratification. They wish to pick this up. They can’t wait a day or 2 for Prime. They wish to go get it today. And they’ve gone beyond Whole Foods. There are currently Amazon-themed grocery stores. So that was kind of a new thing which we watched –not just construction loans but also a retooling of existing retail facilities around this marquis product since the one thing which lenders definitely like is consistency. What we saw during the pandemic was there are certain retail establishments that people need regardless of what is going on. Grocery stores and the Targets of earth are the types of shops that people still have to visit once or twice every week to pick up the essentials. Therefore any retail facilities which are offered by a grocery store–people are super-great credit for the lenders and they flock to people.
You mentioned the funding for the resort up in Orange County I was involved . This was an opportunity that one of our borrowers had to buy a marquis merchandise at a discount since the resort had been shuttered for some time or was at least under restricted use, also with the right direction and eyesight, they view that merchandise or home as being a boon, that they are going to redevelop it and it is going to be a marquis resort in the near future when they finish their improvements. So there are some bright spots out there in the event that you look hard enough; you just need to find the ideal patrons doing the right kind of development. These large industrial buildings which are being used for distribution facilities for the likes of Amazon ports and such–that is definitely something which the lenders are searching for, and we did quite a few loans in the second half last year and the start part of 2021 for those types of products.
Simon: Individuals are certainly significant contrasts to some other subsectors in real estate for example mom-and-pop retail, specific big box stores, and strip malls which have taken huge hits. I understand there has also been a sector and demographic change due to, or accelerated by, the pandemic–creating opportunities for new house construction in addition to for apartments and midsize and more compact cities in certain areas of the country. How do you tell us all about those opportunities?
Hamilton: That is another thing which was a little surprising at the latter half 2020 and today into 2021–there’s a flourishing flat market out there. A great deal of developers and lenders alike are developing new turnkey, luxury apartments, many in that which we call secondary cities or outside the primary urban locations. We’ve closed on multiple apartment loans in the last six months where you have millennials who are visiting the huge cities. With COVID, they are not tied to the large urban centers they were when they had to commute into work daily, so you’ve noticed a motion where these apartment projects–particularly in the western states where I primarily do my deals–they’ve become quite appealing. Moreover, I’ve seen a variety of new subdivisions popping up along with subdivision loans. The housing market is quite hot. You’ve people, again, fleeing in the urban centers and searching for a house to themselves where they are not sharing an elevator or shared amenities with people and they need to space out. They want a house with a third bedroom or a fourth bedroom or even a fifth bedroom or whatever it can be to be used as a home office. So we’ve seen a variety of fresh subdivision loans come online in the last six weeks, and anyone who has tracked home prices throughout the pandemic, it definitely does not monitor the despair and gloom that people have called. In actuality, at least here in the West and I believe in other major metropolitan areas, the housing market is going crazy. Lenders see that there is this trip into the suburbs along with the values are there, along with the lenders will always loan at which the value is. I see that process continuing today that the genie is out of the jar –many people are utilized to operating from home and will continue to want to accomplish this. Having that house office and much more room to breathe is definitely a thing that people will be searching for.
Simon: I’d love to return to something you mentioned previously regarding large distribution centers, warehouses, and port cities or transportation hubs. I suppose companies can check at those as a means of lowering operating expenses when they can take advantage of the market in that way, and it seems like a possible win for sure areas which need to shore up their tax base in addition to provide jobs and attract new residents. What are your ideas on this subject of growth?
The interface of Jacksonville has been expanding over the last ten years, along with the surrounding areas in Jacksonville that’s the biggest metropolitan region within the USA, has risen exponentially during that time, therefore there are opportunities there. Since the e-commerce world grows, the distribution facilities are getting increasingly more important for those e-retailers. They are interested in being able to get their merchandise off the boat and at a distribution center and quickly to the end user so that they can meet their one-day shipping or two-day shipping or in some instances six-hour shipping, and thus having proximity to ports–whether it’s Jacksonville, New Haven, Long Beach–with proximity to those ports and also to major distribution hubs along with the highway system will be critical. Along with the Biden administration is pledging two billion bucks. That is going to be a enormous sum of money going toward ports and bridges and expanding what is already there and making it modern, and I believe the banks will follow that. If the programmers are constructing warehouse facilities, cold storage, then what are you, to serve people e-retailers, the lenders will follow along with love to see credit when if you have the Amazons or the Wal-Marts of the planet putting in distribution facilities –that is blue chip. That is gold star. The lenders follow that. The programmers seek those tenants out, and now I definitely see those port areas being farther siphoned and moving toward a future where there’ll be increasingly more distribution facilities in those areas to be able to meet the requirements of the customers who currently have a slightly insatiable desire to get things delivered at a minute’s notice. I definitely see that trend continuing post-COVID.
Simon: It seems like we’ve got a subject for a future episode–that the tie-in of real estate and infrastructure. Thanks so much for this look at a few of the bright spots in what was an otherwise gloomy season for new real estate projects and funding. …

Categories
Legal news

Insolvency Issues, Real Estate and COVID-19

By Pillsbury’s Construction & Real Estate Law Team

Over the last year, our lawyers have researched numerous bankruptcy topics affecting real estate. Together, the alerts within this series handle many facets (and potential applications) of the Bankruptcy Code as potential balm and bane for owners, owners and creditors seeking to browse a landscape made more harmful by COVID-19 in Insolvency Issues, Real Estate and COVID-19.…

Categories
Legal news

Insolvency Issues, Real Estate and COVID-19

Over the past year, our lawyers have researched numerous bankruptcy topics affecting property. Together, the alarms within this show handle many aspects (and possible applications) of the Bankruptcy Code as possible balm and bane for owners, owners and landlords seeking to browse a landscape created exponentially more treacherous by COVID-19 in Insolvency Issues, Real Estate and COVID-19.…

Categories
Legal news

What New Corporate Disclosures Mean For Real Estate

By Pillsbury’s Construction & Real Estate Law Team

The management and beneficial ownership of real estate from the U.S. is relatively easy to hide. Christian A. Buerger, David L. Miller, and Andrew J. Weiner discuss how this reform regime is about the change radically in”What New Corporate Disclosures Requires For Real Estate.”…

Categories
Legal news

What New Corporate Disclosures Mean For Real Estate

The management and beneficial ownership of real estate at the U.S. has been relatively easy to hide. Christian A. Buerger, David L. Miller, and Andrew J. Weiner talk how this disclosure regime is about the change radically in”What New Corporate Disclosures Mean For Real Estate.”…

Categories
Legal news

ABA/IPT’s 2021 Advanced Property Tax Seminar

From Pillsbury’s Construction & Real Estate Law Team

Pillsbury spouse Breann Robowski will present throughout ABA/IPT’s 2021 Advanced Property Tax Seminar on March 18. Breann will present on the Subject,”Valuing the Fee Simple Interest for Tax Legislation in Situations Not Involving’Dark Stores. ”’ to find out more and to enroll, please see here.…

Categories
Legal news

ABA/IPT’s 2021 Advanced Property Tax Seminar

Pillsbury Spouse Breann Robowski will present during ABA/IPT’s 2021 Advanced Property Tax Seminar on March 18.

Breann will present on the Subject,”Valuing the Fee Simple Interest for Tax Legislation in Situations Not Involving’darkened Shops. ”’ to find out more and to register, please see here.…

Categories
Legal news

Carbon Emissions and the NYC Climate Mobilization Act

By Pillsbury’s Construction & Real Estate Law Team

The Climate Mobilization Act constitutes a profound change from the law of commercial real estate in New York City–along with all stakeholders including building owners, investors, sellers and purchasers, tenants, and lenders will need to take into account how to quantify and allocate the costs of compliance (or non-compliance). Back in”Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City”, coworkers Caroline A. Harcourt, Sheila McCafferty Harvey, also Jacob A. Axelrod talk about the potential Effect of the recently commissioned Climate Mobilization Act (CMA or the Act) for developers and building owners, lenders and tenants operating or underwriting loans from Nyc.…

Categories
Legal news

Carbon Emissions and the NYC Climate Mobilization Act

The Climate Mobilization Act constitutes a profound shift in the law of commercial real estate in New York City–along with also all stakeholders including building owners, investors, sellers and buyers, tenants, and lenders will need to think about how to measure and allocate the expenses of funding (or non-compliance). Back in”Sustainable Buildings and Development: Carbon Emissions and the Current Climate Mobilization Act of New York City”, colleagues Caroline A. Harcourt, Sheila McCafferty Harvey, also Jacob A. Axelrod discuss the potential Effect of the recently commissioned Climate Mobilization Act (CMA or the Act) for developers and building owners, lenders and tenants working or underwriting loans in New York City.…

Categories
Legal news

Shuttered Venue Operators Grant Program Updates

By Pillsbury’s Construction & Real Estate Law Team

Although the Small Business Administration hasn’t yet opened the application to grant creditors, the agency recently released a set of FAQs that address specific definitions and eligibility standards for potential grantees. Alexander B. Ginsberg, David L. Miller, also Toni Suh provide insights on the updated Frequently Asked Questions (FAQs) for the Shuttered Venue Operators Grant (Grant) Program released by the SBA in the recent alert Updates on Shuttered Venue Operators Grant Program.…

Categories
Legal news

Shuttered Venue Operators Grant Program Updates

Although the Small Business Administration hasn’t yet opened the program to grant applicants, the agency recently published a string of FAQs that address particular definitions and eligibility standards for prospective grantees. Alexander B. Ginsberg, David L. Miller, also Toni Suh provide advice on the upgraded Frequently Asked Questions (FAQs) for the Shuttered Venue Operators Grant (Grant) Program released by the SBA from the Current alert Updates on Shuttered Venue Operators Grant Program.…

Categories
Legal news

New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021

From Emily K. Bias and Josh D. Morton

The”Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” is a document jointly promulgated by the American Land Title Association (ALTA), symbolizing the title insurance industry, along with the National Society of Professional Surveyors (NSPS), representing skilled land surveyors, which describes the uniform minimum criteria with which surveyors must comply if preparing a survey to be used by a title insurance company with the intention of deleting the general poll exclusion from ALTA title policy forms. The very first such set of criteria was designed in 1962 and has been revised 10 times. The criteria are updated every five years and are relied on by real estate professionals, including buyers, lenders, title insurance companies and their attorneys, nationally. In October 2020, a joint committee comprising representatives of both ALTA and NSPS adopted the”2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” which will become effective on February 23, 2021. The significant changes involving the 2021 criteria as well as also the previous 2016 criteria are summarized below.
Read →…

Categories
Legal news

New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021

The very first such set of criteria was designed in 1962 and has since been revised 10 occasions. The criteria are currently updated every five years and are relied on by real estate professionals, such as purchasers, lenders, title insurance companies and their attorneys, nationally. The substantial changes between the 2021 criteria as well as also the previous 2016 criteria are summarized below.
Survey Matters
The 2021 criteria clarify that only survey-related matters have to be summarized on the survey. This revision was intended to foreclose a practice common among several institutional creditors to require that the survey list all items displayed in Schedule BII of the name commitment on the surface of the survey regardless of whether those things may in reality be survey associated with The 2021 criteria also add a requirement that the surveyor contain a notice specifying whether the location of some right of way, easement or other survey-related thing is shown on the survey. This change incorporates common lender and purchaser requirements that weren’t previously enumerated in the survey criteria.
Additionally, a new provision requires that the surveyor to advise the name company if it’s conscious of a recorded easement not listed in the name work from the process of preparing the survey. Until the name firm provides the surveyor with evidence of a release of the easement, then the surveyor is required to demonstrate that the easement on the surface of the survey, together with a notice that the title company was advised of the same.
Utilities
The survey must reveal certain things observed through the surveyor’s fieldwork. The 2021 criteria specifically add utility locate markings for this listing, for example, source of the markings, with a notice in case unknown. This condition was accidentally deleted when the 2016 criteria were published.
Cosmetic Candles
The survey criteria incorporate a listing of items that could present issues beyond those typically encountered on a survey (e.g., marinas, campgrounds, mobile home parks, easements, leases and other non-fee straightforward interests), and which should be specifically negotiated between the client, lender, insurer and surveyor. The 2021 criteria add mineral interests for this listing.
Table A Items
Table A of the minimum standard detail requirements puts on a listing of optional surveyor responsibilities and specifications, which may be requested by the client. Any such items are subject to negotiation between the client and the surveyor, such as any extra fee associated thereto.
The 2021 criteria delete two Table A items that were included in the 2016 criteria. Former item 10(b) was deleted, which necessitated a determination of whether specific walls are plumb (i.e.( perfectly perpendicular ). This item was eliminated since it is not rooted in any name concern (apart from the chance of an encroachment, that is individually addressed in the criteria ). Additionally, Item 18 was deleted, which necessitated the position of wetland delineation markers (or a notice disclosing the lack thereof). This item has been the source of confusion because its first introduction as a portion of the 2011 criteria. In 2016, the ALTA/NSPS committee attempted to describe that the surveyor is not required to actually delineate wetlands, but simply to find delineation markers previously set with a wetlands biologist. Confusion persisted, and thus the committee chose to remove this item completely.
Table A objects 6(a) and 6(b), that relate to zoning information, were altered to clarify that any zoning letter or report provided to the surveyor from the client or the client’s designated representative must be”special to the surveyed property” This change was intended to avoid a client’s delivery of a copy of a whole zoning ordinance into the surveyor with the intention that the surveyor ascertain whether and to the extent that ordinance applies to the surveyed property.
The 2021 criteria also modify Table A item 11, related to underground utilities. Under the 2016 criteria, this item required that the surveyor to find underground utilities based on observed signs, plans obtained through the surveyor’s petition to a utility business, and markers asked by the surveyor pursuant to an 811 utility find or similar petition. The standards change the onus away from the surveyor. Under new item 11(a), the surveyor is required to demonstrate signs of underground utilities based on reports or plans furnished by the client (with reference regarding the sources of data ). Item 11(b) requires the surveyor to show markings coordinated with the surveyor pursuant to a private utility find.
As mentioned above, the 2021 criteria will become effective on February 23, 2021, that coincides with the date of this historical festival of this Roman god Terminus, shield of border markers. When a contract is entered into for surveying services that commence before this effective date but won’t be finished until after the new criteria are in effect, the parties must specifically discuss that set of criteria will apply and contain an suitable clause in their contract to that purpose.
It’s important that purchasers, lenders, title insurance companies and other business participants familiarize themselves with all the 2021 criteria before contracting for, either negotiating or taking the ALTA/NSPS Land Title Survey from and following that the 2021 standards’ effective date. When you have any queries related to this particular topic, please contact the authors.…