Pipelines and Eminent Domain

Last Wednesday, I attended an excellent program sponsored by the Penn State Cooperative Extension, “Making Sense of Natural Gas Pipelines and Right-of-Way Agreements”.  Over the years, I have represented both condemnors and condemnees and was interested to hear how the acquisition process works with the pipeline proposed by Williams in Lancaster County.  I learned many practical and tactical considerations that landowners and their attorneys can use to their benefit.

What is commonly referred to as the “Williams Pipeline” (part of the Atlantic Sunrise Expansion Project to be built by Williams’ subsidiary, Transco) is an interstate pipeline and, therefore, acquisition of the property necessary to construct the pipeline is governed by federal law, not state law.  (Other pipelines, called gathering and distribution lines, are regulated under state law.) 

A natural gas company, such as Williams, is required to obtain a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (FERC).  This process is currently underway and comments on the potential environmental effects, reasonable alternatives and measures to avoid or lessen environmental impacts can be submitted to the FERC on or before August 18, 2014.  Because the comment period is limited, in order to preserve rights, landowners and other stakeholders are advised to act now.  The FERC issued a Notice of Intent to Prepare an Environmental Impact Statement which includes information as to how to comment. 

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Pennsylvania Liquor Control Board Lowers Fee for Gaming Licenses

The Pennsylvania Liquor Control Board announced yesterday that it was lowering the license fee for a tavern gaming license from $2,000 to $500.  It’s safe to assume that the PLCB has had to take a long hard look at its tavern gaming licensing process, application fees and regulations because of the minimal interest that eligible bars and restaurants have had in seeking the gaming license.  When the tavern gaming legislation was first passed, the state estimated that it would generate nearly $100,000,000 in revenue through the licensing process and the tax generated on the games themselves.  Legislators soon realized that that estimate was grossly out of line and through the first half of 2014, there have only been 21 tavern gaming licenses issued according to the PLCB.

While the reduction of this license fee appears to be some recognition that the tavern gaming process needs to be addressed, licensees should still understand that this reduction affects only one of the multiple fees that are paid throughout the process.  In order to obtain a tavern gaming license, the applicant must still submit an application packet along with a $2,000 non-refundable application fee.  That $2,000 fee is split between the PLCB for its processing of the application and the Pennsylvania Gaming Commission who conducts the background investigation.  If an applicant makes it through that initial phase and if their application is approved, in order to receive the license, the applicant must pay this newer, reduced fee of $500.  So as a whole, while the initial cost of obtaining the license is reduced, it is still significant at a total of $2,500.

Whether this is a significant enough change to generate some more interest in the tavern gaming licenses remains to be determined. 

Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Business Law and Liquor License matters.

 

Real Estate Disclosures - Murder/Suicide Not a Defect

 Last Monday, July 21, 2014, the Pennsylvania Supreme Court entered what should be the final opinion with respect to whether a home seller in Pennsylvania needs to disclose that a murder/suicide took place in the home.  I had posted two previous blog articles, one on February 28, 2012, entitled “What Do You Mean My House Is Haunted”, and a second one on January 30, 2013, entitled “Real Estate Disclosures – Does It Matter If My House Is Haunted”.

You may remember that this case involved a lawsuit by a home buyer who, after settlement, discovered that the home she had bought and improved had been the site of a murder/suicide where a previous owner had allegedly killed his wife and himself on the property. She contended she would not have bought the house had she known of this crime. Originally a three judge panel of the Superior Court held, in a two to one decision, that the murder/suicide could be a material defect in the property requiring disclosure under Pennsylvania disclosure law. In January of 2013, the Superior Court reversed the panel’s decision on the basis that the disclosure of psychological defects would be a descent down a very slippery slope. 

The case was appealed to the Supreme Court and, in Monday’s decision, the Supreme Court, in what they stated was a matter of first impression, decided the underlying question . . . whether psychological stigmas are material defects. The Court determined that to require the disclosure of psychological defects would clearly be beyond the intent of the disclosure law. The Plaintiff argued that the psychological stigma on the property reduced its value and that the failure to disclose this tragic event constituted a material defect. The Court, again mentioning the slippery slope of determining what a particular buyer may find objectionable, stated that efforts to define those that would warrant mandatory disclosure would be a Sisyphean task. (We will all remember that Sisyphus was punished for chronic deceitfulness by being compelled to roll an immense boulder up a hill.)

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Countdown for Annual Tax Assessment Appeal Filing

The deadline for challenging your 2014-2015 Lancaster County property assessment is August 1, 2014.  Appeals filed after August 1, 2014 won’t be heard until 2015 and won’t take effect until 2016.  And if you are relying upon an appraisal to support your appeal, the written appraisal report must be filed with the Lancaster County Assessment Office by August 15, 2014.  This means the time to act is now.

How do you know whether an assessment appeal is warranted?  We look at the current assessment, the common level ratio, the current total tax millage rate and evidence of current fair market value.  Current assessments and property account numbers are posted online. (The property account number, and in some cases, the assessment, is listed on recently issued school district real estate tax notices.)  The common level ratio (CLR) is the factor applied to the assessment that converts the assessed value into fair market value. As of July 1, 2014, the common level ratio increased to 1.26. Total tax millage rates now include 2014-2015 school district taxes.     

Property owners should multiply their assessment by the CLR (1.26) to see if the fair market value is accurate. For example, an assessment of $100,000 implies a fair market value of $126,000 [$100,000 times 1.26]. 

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The Impact of Adoption

The other night I found myself sitting with my children watching America’s Got Talent. While America’s Got Talent is clearly a popular show, it is not one which I have seen before. That being said, my children and I became engrossed in the wonder of this all-American talent show where some acts were silly, others dangerous and some downright amazing. What struck me most of all however, was a young man named Jacob, who at just eighteen years old sang a moving rendition of John Mayer’s “Waiting”. It wasn’t so much that he was young, handsome and extremely talented, but it was his back story that touched my heart. You see, Jacob shared with the world that he had been the child of neglectful parents who are addicted to drugs and ultimately, their inability to care for him and his sister caused them to be placed in foster care.  At the time, Jacob was only five years old and spent several years bouncing from foster home to foster home. He described this experience as being like someone’s luggage, never knowing where you would end up. Clearly what he wanted most was a family that loved him and the stability of knowing where he would end up.

Fortunately for Jacob, he and his sister were adopted, and before he took the stage that night his adoptive mother shared words of encouragement and gave him a big hug. Jacob walked confidently out on to the stage and delivered an extraordinary performance. But again, even then, it was not the performance that struck me, but instead, the words of his mother after hearing Jacob’s backstory as portrayed by NBC.  She said without hesitation, “That is my son, and I am his mother.” Those simple but impactful words are the epitome of what adoption means to me and my law practice. The thousands of children that are adopted every day are impacted by the generosity and compassion of the families that add them to their home. That addition is not done for fame or fortune, it is not to gloat or to be perceived as a good person.  Instead, it is a simple, yet profound relationship just as Jacob’s mom suggested, “That is my son, and I am his mother”.

For families who open their homes and their hearts to children awaiting adoption, the impact of the decision to include a child as part of a family will change that child’s life forever. Jacob is a perfect example of that. At five years old he was trapped in a neglectful home and then removed to the instability and uncertainty of the foster care system. Jacob’s parents’ decision to adopt him, changed his life forever and allowed him to be a strong confident eighteen year old, standing on a stage in New York City, singing a song for hundreds of thousands of people in that theater and watching across the country.  How could anyone ever question the impact of adoption?

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Adoption

You've Got Your Marriage License - Is That All You Need?

In 1996, I was a legislative research analyst in the Pennsylvania House of Representatives when the General Assembly enacted the statute specifically prohibiting the recognition of same sex marriages.  That statute provides as follows: 

It is hereby declared to the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

I recall listening to the floor debate in my office on the day of the Bill’s final passage and discussing it with other staff members.  While I was not involved with the drafting or passage of the Bill, I very clearly recall the urgency among the elected members of the House to move the Bill quickly because there was a great fear that some judge in Hawaii could force the Commonwealth of Pennsylvania to recognize a marriage between same sex couples. And so it passed, unremarkably, and moved to the Senate for final approval before enactment.

But Tuesday was a remarkable day for same sex couples in Pennsylvania who have been governed by that 1996 law.  Pursuant to Whitewood v. Wolf, 2014 WL 2058105 (U.S.M.D., May 20, 2014), the statute has been declared unconstitutional and same sex couples can now marry in Pennsylvania.  There are headlines in every newspaper and on-line media outlets and videos on the internet and the news.  There was a line at the Dauphin County courthouse yesterday morning when it opened of same sex couples wanting to apply for licenses. In Lancaster County, the first same sex couple to apply arrived at the Register of Wills office around 8:45 a.m.  It’s historical, no question, and it is now the law of the Commonwealth.  

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Can There Really be Such a Thing as "Conscious Uncoupling"

I read in a Fox News article a few weeks ago that Gwyneth Paltrow and her husband, Chris Martin, attended a party together, even though they have publicly announced their separation, which they have referred to as “conscious uncoupling”.  When the pair announced that they were “consciously uncoupling”, there seemed to be a lot of public questions (and skepticism) about what this is, and, if it exists, whether it can be accomplished successfully.  I, too, raised an eyebrow, wondering why it is headline news and why any of us care what happens between them in the privacy of their own relationship. In part, the story generated so much interest because of the use of the term uncoupling in place of divorce.

The term and idea of the “uncoupling” of married people is one that I have heard used in collaborative divorce cases.  In my experience, many people are drawn to collaborative law because they desire to end their marriage and resolve their economic issues in a process and a timeframe that they control together. Generally, they value what's left of their relationship with their spouse, namely the joint parenting of children and often, that reason is their primary factor in selecting collaboratively-trained counsel to assist with the divorce. Collaboratively-trained professionals, particularly coaches and therapists, refer to the term “uncoupling”, as a way for both spouses to envision themselves moving forward with their lives, independent of each other.  Because the collaborative process is based on the parties' development of their individual needs, concerns and interests, it necessarily requires them to think about their future and how their financial settlement and parenting plans will be structured to enable them to achieve that.

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Few Restaurants Betting on Small Games of Chance

Previously, I wrote about the change in the law that permitted restaurants, hotels and other places with a liquor license to now apply for a small games of chance license which would permit them to operate certain tavern games as part of their business.  These games were previously reserved for clubs and other private licensees and were not available to restaurants and hotels.  When the law was passed, the governor’s office estimated that the taxes and fees generated from the expansion of these licenses would generate as much as a $102 million dollars for the State of Pennsylvania.  However, a number of recent articles, such as this one from Lancaster Newspapers and this one from PennLive/Patriot News have highlighted the reluctance of many bar and restaurant owners in applying for these licenses.

The reluctance seems to stem from a great deal of uncertainty and also some confusion and complication with regard to the application process.  The first small games of chance license was highly publicized and, according to reports from the bar owner, appears to have attracted some business.  It seems though it is too early to tell as to whether or not these licenses are worth it to bar and restaurant owners given the hefty taxes and application requirements.  It remains to be seen whether the Department of Revenue, Liquor Control Board, and Gaming Control Board, all of which are involved in a small games of chance license, will relax some of their requirements or taxes when it comes to these games or these licenses in order to attract more applications.  If they do not, there may need to be some adjustments to the expectations for the taxes and fees generated by these licenses.  It is also possible that a few establishments will serve as guinea pigs and, if they continue to report success in increased revenue from these games, it could open the flood gates for other bars and restaurants that have not been so quick to bet on the value of a small games of chance license.

Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Business Law and Liquor License matters.

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The Three Estate Planning Documents You Need

In previous posts, we have discussed various estate planning documents and how they differ, but many times there is confusion as to what takes effect and when. Or, you may wonder why you can’t just appoint an agent (power of attorney) in your Will.  I have provided a simple review of each document, its purpose, and when it takes effect in hope that I can quickly dispel the confusion.

Generally, when clients meet with me for estate planning, three documents are prepared and executed: the Financial Power of Attorney, the Durable Health Care Power of Attorney/Advanced Health Care Directive, and the Will. 

The Financial Power of Attorney allows your agent to access your financial accounts, pay bills and make transfers on your behalf immediately upon signing.  It is important to select someone you trust as they have access to all of your financial accounts.  There are ways to protect yourself and ensure that the agent you have appointed is acting in your best interests.  One way is to appoint co-agents so they act as a check on each other.  However, this can lead to disagreements between the agents and defeat the purpose of the document itself.  Another way is to request an accounting of your agent’s activity if you suspect something is amiss.  The agent is bound to follow certain fiduciary duties while acting as your agent.  If your agent fails to act in your best interest, they can be brought before the court and made to remedy their actions.  However, the best way to be proactive is to appoint someone that you trust implicitly from the beginning. 

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Follow up to Death in the Digital Age

As a follow up to Death in the Digital Age, a story about the online afterlife of a woman in Pontiac Michigan caught my attention.   Her body was discovered in her vehicle parked in her garage by an individual entering the property on behalf of the mortgage company which had foreclosed upon the property for non-payment.  The unusual thing?  It was five years after her death in 2009.

She had arranged for automatic online payment of her utilities and mortgage, and the balance in her account was large enough to last for four years.  As her body decomposed in the garage, the funds went out regularly.  It wasn’t until the account was depleted that her death was discovered.  The neighbors assumed she was traveling for business, she had quit her job so was not missed at work, or apparently anywhere else.

My favorite comment to this online story was:  “What ‘lived on’ was the money.  When that ran out, the culture pronounced her dead.”

Christina Hausner is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, PA. She received her law degree from Duquesne University School of Law.