Court of Appeals Finds Substantial Compliance with Tax Sale Statute

Hammond219 Kenwood Holdings, LLC, (Kenwood) appealed the judgment of the trial court finding that Properties 2006, LLC, (Properties 2006) substantially complied with the requirements of Indiana Code section 6-1.1-25-4.5(e). Subsection (e) requires that the purchaser of property sold at a tax sale notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date. Finding that the trial court did not err in its determination that Properties 2006 substantially complied with the requirements of this statute, the Court of Appeals affirmed.  Kenwood Holdings vs Properties 2006.

Kenwood was the owner of record of property located at 219 Kenwood Avenue in Hammond (the Property) on April 25, 2013. On that date, the Property was sold in a tax sale to Unexpected Holdings, LLC, as a result of Kenwood’s delinquency in its payment of taxes. Unexpected Holdings, LLC, received a certificate of sale and assigned its rights under this certificate to Properties 2006.

On June 21, 2013, Properties 2006 sent Kenwood notice of its purchase and its intent to petition for a tax deed as required by Indiana Code section 6-1.1-25-4.5. The notice contained the statement: “A petition for a tax deed will be filed on or after August 24, 2013.” Appellee’s Br. p. 1. Kenwood contacted several potential lenders in an attempt to secure a loan to redeem the Property but was eventually unsuccessful. On August 30, 2013, Properties 2006 notified Kenwood that it had petitioned for a tax deed as required by Indiana Code section 6-1.1-25-4.6. 3  

On September 25, 2013, Kenwood filed a Verified Objection to Petition for Tax Deed in the trial court, arguing that the first notice sent by Properties 2006 did not meet the requirements of Indiana Code section 6-1.1-25-4.5(e). The trial court held a bench trial on December 9, 2013, and found that Properties 2006 had substantially complied with the statute.

“It is the date of petitioning that the statute is concerned with, not the date of issuance. Properties 2006’s statement informed Kenwood of the date on which it planned to petition for a tax deed. The statement makes clear that Properties 2006 intended to file this petition on August 24, 2013. Therefore, Properties 2006 fully complied with subsection (e),” Judge John Baker wrote.

The judges also rejected Kenwood’s assertion that the requirements of subdivisions (1) and (2) cannot be satisfied by one statement alone but must be broken into two sentences.

Posted in Indiana Cases, Real Estate | Leave a comment

Filmmaker Josh Fox to Speak at Annual Environmental Forum

GaslandThe Greening the Statehouse conference on Saturday, October 25 is worthy of another mention.

The Hoosier Environmental Council has announced that Josh Fox, director of the Academy Award-nominated film Gasland, will headline the 7th annual “Greening the Statehouse” conference on Saturday, October 25, 2014 from 8:30-11:30 a.m. at the IMAX in the Indiana State Museum.

Gasland is a 2010 documentary written and directed by Fox. Nominated for an Academy Award for Best Documentary in 2011, the film focuses on communities in the United States affected by natural gas drilling and, specifically, a method of horizontal drilling into shale formations known as hydraulic fracturing.

Registration for Greening the Statehouse is $30 general admission and $15 for students. To register, visit the Hoosier Environmental Council website.

Posted in Clean Water | Leave a comment

More on Jackson County’s Updated CAFO Ordinance

From a lengthy article in the Seymour Tribune on September 21, 2014:

Jackson CountyJackson County Plan Commission held a public hearing about a proposed confined animal feeding operation ordinance. The proposed ordinance, which has been in the works for nearly a year, would address the potential locations and placement of large scale livestock operations and other issues concerning their operations including odor and appearance.

Earlier this year, a committee of livestock producers and others with interests in agriculture and those with concerns about large livestock operations also have been meeting in recent months to provide input into the ordinance. The county Plan Commission also has had several meetings focused on the subject.

David and Becky Vehslage of rural Brownstown, were two of about 13 who offered their thoughts to the commission. Both said biofilters — designed to lessen odors — should be a must in the ordinance and setbacks should be farther back than what’s currently stated — specifically to protect drinking water and neighboring residences.

David Vehslage, like several others, said he is not opposed to farm operations in general and appreciated the efforts of county officials and others to strengthen the existing ordinance governing livestock operations that was enacted nearly half a century ago. Gary McDonald of Vernon Township, said he thought the ordinance should require farm operators of CAFOs to live on the property that they maintain. This is not a requirement at this time.

Grant VonDielingen of Brownstown said with Jackson County being such a highly agricultural county — in the state and the nation — having setbacks of 1,000 feet from any home will stop producers from expanding. VonDielingen, who once tried to obtain county approval for a CAFO on property his family owns east of Brownstown, asked the commission to consider lessening the setbacks. VonDielingen withdrew his request for a hog operation in part because of opposition from some.

Aly Wells, program manager of policy and regulatory affairs for the Indiana State Department of Agriculture, said she’s received several calls from producers in the county about the issue. Wells wanted to let the county know that the department was available if the commission needed guidance about any proposed updates to the ordinance.

The proposed ordinance would not have any effect on a request for a special exception from a Seymour couple to allow for a 4,000-head feeder-to finish hog operation. Robert “Kyle” and Leah Broshearses’ proposed operation would be set on 10 acres northwest of county roads 1050E and 200S between Dudleytown and Uniontown. A public hearing on their request is set for 7:30 p.m. Oct. 14 in front of the county board of zoning appeals at the courthouse.

The original ordinance regulating livestock operations was enacted in 1968 and has not been updated since. That ordinance defined a confined feeding operation as any farm with more than 100 head of livestock or 5,000 fowl indoors or outdoors. In Indiana, an operation with more than 2,500 swine weighing more than 55 pounds is considered a confined animal feeding operation and subject to stricter regulations than smaller operations.

The proposed revisions would require future CAFOs to be located at least a mile away from municipalities and unincorporated towns. It also would require farmers to incorporate systems to lessen odors from such operations. Those regulations would require at least three acres for a commercial facility and 300-foot setbacks. A “farm, confinement feeding” may not be closer than 300 feet to an existing residence or platted lot.

The proposed regulations would set the minimum size for a commercial facility at 10 acres, require setbacks of 200 feet and require one mile between a CAFO and an existing residence or platted lot. Other proposed regulations in the ordinance include requiring the planting of trees and shrubs as a buffer and site plans to be prepared by a licensed architect or engineer.

Present zoning regulations do not require any biofilters or buffering (screening planting). The new regulations would require biofilters that could reduce particulate matter by 80 percent and odorous gases by 40 percent and would have to be installed on all pit exhaust fans. It also would require the planting of trees, shrubs and earthen berm that must reach a minimum cumulative height of 6 feet before the CAFO can begin operations.

Jackson County Plan Commission attorney Susan Bevers has been writing a new CAFO ordinance based on guidance provided by the Plan Commission as well as the general public during a series of hearings on the topic. The updated ordinance will not apply to the Broshears CAFO recently approved by the Jackson County BZA.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM, Planning and Zoning | Leave a comment

Jackson County BZA Approves 4,000 head CAFO

From the Seymour Tribune on October 15 . . .

CAFOA southern Indiana farmer has won permission from county officials to build a facility housing 4,000 hogs, even though dozens of residents are protesting the plans.

A Jackson County zoning board voted 4-0 to approve the confined feeding operation for a site a couple miles north of the town of Crothersville. The vote about 1:25 a.m. Wednesday followed six hours of public comments before a crowd of more than 100 people who packed a courthouse meeting room.

Many facility opponents told the board they were worried about odors, truck traffic and possible water contamination to wells and the nearby Muscatatuck River from stored manure.

Trina McLain said she had health concerns about the hog facility being about a quarter-mile from her home and that it would harm the quality of life for nearly 500 homes in the vicinity. “This is a very populated area, and most of these homes will be downwind from this site,” she said.

Farmer Kyle Broshears said the hog facility would be built as far as possible from the closest home in the area about 40 miles north of Louisville, Kentucky. His plans call for spending about $900,000 on the facility that would include an 81-by-417-foot building housing the hogs and a concrete pit holding about 1 million gallons manure. Broshears’ proposal still needs approval from the Indiana Department of Environmental Management. He said construction could begin next spring or summer.

Complaints about Broshears’ plans echo those about similar large hog farms around the state. Neighbors of a proposed facility in neighboring Bartholomew County have file a lawsuit seeking to block its construction, while a judge this summer ruled against a lawsuit against four large hog farms in eastern Indiana’s Randolph County.

Jackson County zoning board members said the proposal met the county requirements and is in an agricultural zone.”

Jackson County Plan Commission attorney Susan Bevers has been writing a new CAFO ordinance based on guidance provided by the Plan Commission as well as the general public during a series of hearings on the topic. The updated ordinance will not apply to the CAFO just approved by the Jackson County BZA.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM, Planning and Zoning | Leave a comment

Travelers vs. Maplehurst II – Liability for Pre-Notice Environmental Remediation Costs and Expenses

Dean FoodsThe Indiana Court of Appeals gives us this opinion related to an insurer’s obligation  for pre-notice remediation costs.

In 1997, Maplehurst Farms sold its property to Dean Foods.  Dean then discovered environmental contamination on the property as a result of underground storage tanks dating from the 1950s. Travelers vs. Maplehurst II

Maplehurst submitted a corrective action plan to IDEM in September 2002. Later in 2002, Maplehurst and Dean entered into a settlement agreement. The agreement acknowledged the existence of the corrective action plan.

Maplehurst then attempted to recover for cleanup costs from three of its insurers. Travelers denied Maplehurst’s claim and refused to provide a defense. Travelers had been notified of the issues in mid-2003. In 2004, IDEM issued a revised corrective action plan.

The denial of coverage made it to the Court of Appeals in 2011, in which the judges held that Travelers does not have to pay pre-notice costs and expenses. However, the Court of Appeals held that the Travelers was liable for the costs and expenses that Maplehurst incurred after it notified Travelers of the claim.  The trial court entered judgment against Travelers for more than $512,000.  Travelers vs. Maplehurst I

This case involved a determination as to when Maplehurst incurred the costs and expenses at issue. Judge Barnes wrote that “Maplehurst clearly obligated itself to remediate the property when it entered into the Dean Settlement, not when IDEM approved the final CAP. The final CAP merely described how Maplehurst would be required to remediate the property; Maplehurst agreed in the Dean Settlement to remediate to IDEM’s standards long before Travelers was notified of the claim.”.

“Although some of the remediation occurred after notice to Travelers, all of the post-notice costs at issue flowed from the Dean Settlement. As Travelers points out, an award of such costs would allow an insured to settle a claim, notify the insurer, and obligate the insurer to cover the settlement. Such a result would violate the policy provision that prevents an insured from voluntarily assuming any obligation without the insurer’s consent.”

The court concluded that the trial court erred when it interpreted Maplehurst I to require Travelers to pay costs that were incurred as a result of the Dean Settlement. The trial court was reversed.

Posted in Hazardous Waste, IDEM, Indiana Cases, Insurance Coverage | Leave a comment

Failure to Name Lienholder Is Not Cause for Dismissal of Inverse Condemnation Case

Storm DrainIn 2007, the Town of Yorktown and the Delaware County Drainage Board decided to improve storm drainage. The affected area included Snyder’s real estate. She did not agree to an easement or right-of-way. The local units of government proceeded with the project across her property anyway.  In her lawsuit, Snyder asserted claims of trespass and inverse condemnation. Snyder vs. Yorktown.

Snyder asserts that the project has caused damage to her property due to storm water, debris and pollutant run off flowing into the new drain and her property.

Snyder said she was unable to determine which entity was responsible for the project for four years. She finally figured it out in 2011 and then filed a tort claim notice. The trial court dismissed the trespass claim and the Indiana Court of Appeals affirmed.

The trial court also dismissed the inverse condemnation claim. The governmental units had argued that because she failed to notify/include her mortgagee of her claim, it should be dismissed. The Court of Appeals held that notification of a mortgagee is not grounds for dismissal. The Indiana Supreme Court has previously held that the failure to name all interested parties is not a jurisdictional defect in a condemnation action. It can be remedied by permitting the mortgagee to intervene.

The case was remanded for further proceedings.

Posted in Indiana Cases, Planning and Zoning, Real Estate

ERB Approves Proposed Rule regarding Off-Site Manure Ponds

Manure PondIndiana’s Environmental Rules Board unanimously approved draft rules related to off-site manure ponds and lagoons on Wednesday, October 15. These are Indiana’s initial set of rules governing stand-alone off-site ponds and lagoons built to hold manure trucked in from livestock farms. The rules would apply to earthen ponds, lagoons, tanks and other structures designed to store at least 1 million gallons of manure. 327 IAC 19 Proposed Rule.

Indiana has regulated manure storage at livestock farms since 1971. The new rules, if adopted in final form, are the first for “satellite” manure ponds, lagoons, tanks and other structures located off-site of livestock farms that serve as holding basins for manure trucked in from such farms.

Kim Ferraro, the Hoosier Environmental Council’s water and agriculture policy director, said the proposed rules for lagoons don’t provide sufficient buffer zones around sinkholes and other areas with porous limestone geology where surface and groundwater often mix. She said that poses a threat to private wells. “It’s quite frankly an unconscionable disregard of the environment and the health of people who live in rural communities and rely on well water for their drinking water,” Ferraro said.

Citizens Action Coalition maintained that the draft rules are “grossly inadequate” compared with what’s needed to protect Indiana’s public health and its water supplies.  Earthen manure lagoons can fail or leak during heavy rain events and taint the groundwater that rural residents rely on for private wells to provide their drinking water. CAC argued that the rules detailing the construction, management and operation standards for the manure lagoons will spur an influx of manure from livestock farms in other states.

The Indiana Pork Advocacy Coalition disputed that contention, saying the rules would actually make it more difficult to bring manure into Indiana from other states, in part because the storage basins would require state approval. It maintains that such lagoons give livestock farmers a chance to sell some of their manure to crop farmers, who apply the liquid waste to their land as an alternative to commercial fertilizer.

Bruce Palin, assistant commissioner of the Indiana Department of Environmental Management’s office of land quality, said Indiana currently has three off-site manure lagoons, one of which is part of a livestock farm operation but is not located on that farm.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM

Emmy Award-Winning Filmmaker to Speak at Annual Environmental Forum

The Hoosier Environmental Council has announced Gaslandthat Josh Fox, director of the Academy Award-nominated film Gasland, will headline the 7th annual “Greening the Statehouse” conference on Saturday, October 25, 2014 from 8:30-11:30 a.m. at the IMAX in the Indiana State Museum.

Gasland is a 2010 documentary written and directed by Fox. Nominated for an Academy Award for Best Documentary in 2011, the film focuses on communities in the United States affected by natural gas drilling and, specifically, a method of horizontal drilling into shale formations known as hydraulic fracturing.  

In 2008, Fox received a letter from a natural gas company interested in leasing his family’s land in the Delaware River Basin for drilling. Disturbed by the letter, he embarked on an odyssey to glean as much information as possible about significantly expanded natural gas drilling in the US — with movie camera in hand. Fox has won numerous awards for Gasland, including the Emmy Award for Outstanding Direction for Nonfiction Programming, the Sundance Film Festival Special Jury Prize, and a Sarasota Film Festival Special Jury Prize. 

“Josh Fox’s films tell, at one level, the story of growing, nationwide concern about groundwater contamination risks and air pollution arising from the recent natural gas boom, says Jesse Kharbanda, executive director of the Hoosier Environmental Council.  “But the films tell, at a deeper level, a story that is extremely relevant to Indiana – that when elected officials zealously seek to weaken or resist sensible environmental protections, they are putting their citizens’ health and livelihoods in danger.   This deeper story must be kept in mind as we anticipate disturbing plans to harm environmental protections during the 2015 session of the Indiana General Assembly.” 

The film generated significant controversy, particularly within the oil and gas industry. The New York Times took a critical look at the assertions made in the film and measured them against the oil and gas industry’s rebuttal. You can find the review here.

Registration for Greening the Statehouse is $30 general admission and $15 for students. To register, visit the Hoosier Environmental Council website.

Posted in Clean Water

Elkhart’s Lusher Street Superfund Site Requires Aditional Remedial Action

Lusher StreetThe Elkhart Truth reports that the EPA has determined that about 70 properties on the city’s near-west side should be connected to city water because of groundwater contamination. The Environmental Protection Agency is also suggesting 200 homes inside the Lusher Superfund site need to have vapor removal systems installed to reduce dangerous vapors related to the contamination that can seep through basement walls and foundations.  The cost is estimated at $2.8 million.  You can find the story here.


EPA: $1M in Grants for Lake Michigan Water Quality

The EPA also announced $1 million in grants to fund two green infrastructure projects on Chicago’s North Side with the aim of improving water quality in Lake Michigan. The city plans to use a $812,000 grant to install bioswales and permeable pavement in a parking area at Montrose Beach on the North Side. The aim of that project is to annually filter more than four million gallons of stormwater in order to reduce the amount of stormwater contamination that currently leaches into the lake. In addition to that project, the city plans to use a $188,000 grant to install infrastructure along Leland Avenue in the Uptown area. The street runs through the north side neighborhood to the lakefront. The aim of the endeavor is to prevent almost 900,000 gallons of untreated stormwater from entering the city’s sewer system each year and prevent basement flooding in area structures. The Chicago Tribune has the story here.

Posted in Clean Water, EPA, Hazardous Waste, Real Estate

IDEM’s Tom Easterly Says the Obama Climate Change Plan is Bad for Indiana

The Northwest Indiana TimesTom Easterly reports that IDEM’s Tom Easterly believes that the Obama Administration climate change plan is bad for Indiana. An interesting position from the official charged with enforcement of Indiana’s environmental code. You can find the story here.

Easterly was appointed by former Gov. Mitch Daniels – who is no fan of EPA policies. Gov. Mike Pence – who holds similar views to Daniels – kept Easterly as IDEM’s chief official.

Posted in Clean Air, Climate Change, IDEM

Seventh Circuit Finds that Title Company Complied with Escrow Instructions

real estate developmentFrom the Seventh Circuit we have Edelman vs. Belco Title & Escrow, finding that a title company complied with its escrow instructions and had no liability to an investor in the real estate project.  

Plaintiffs invested $3 million in a multi‐use real‐estate project in Caseyville, Illinois called Forest Lakes. Their agreement with the developers promised a first‐priority mortgage, but they received only a junior mortgage. Meridian Bank had previously acquired a $20M mortgage on Forest Lakes in 2005. The plaintiffs lost their entire investment when the bank foreclosed in 2009. They sued Belco – the title company – which had done the title work for the Forest Lakes transactions, including the Meridian mortgage. None of the plaintiffs’ $3 million were ever escrowed with Belco, but went directly to the developer. Belco had no contact with the plaintiffs, before, during, or after the closing.

The development failed. Plaintiffs alleged Illinois state‐law claims of breach of fiduciary duty against Belco, claiming that as the “closing agent” for the transaction, Belco owed a duty to disclose that they were not receiving the first‐priority mortgage. The trial court granted summary judgment for Belco, finding that Belco was the plaintiffs’ agent for the purposes of the escrow and closing. Under Illinois law the title company owed only the very limited duty “to act only according to the terms of the escrow instructions.” Belco complied with the terms of the escrow agreement in that the funds were disbursed according to the agreement. The Seventh Circuit affirmed.

Posted in Federal Cases, Real Estate

DC Circuit Court of Appeals: EPA Cannot Create an Affirmative Defense through the Rulemaking Process

Cement PlantFrom the DC Court of Appeals, we have NRDC vs. EPA. The NRDC challenged the EPA’s 2013 cement emission standards rule as well as the EPA’s decision to create an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards. See Cementing Emission Standards.

In a previous decision, the Court considered EPA’s first attempt to create emission standards for the cement industry, and found the agency’s action arbitrary and capricious. See Portland Cement Association v. EPA, 665 F.3d 177 (D.C. Cir. 2011). Following the ruling, EPA went back to the drawing board and developed the emission standards at issue here, the 2013 Rule. Several environmental organizations, including the Natural Resources Defense Council and the Sierra Club, petitioned for review of the 2013 Rule, arguing primarily that certain aspects of the Rule contravene the Clean Air Act. They also challenged EPA’s decision to create an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards. EPA’s affirmative defense would be available to defendants in cases where an “unavoidable” malfunction had resulted in impermissible levels of emissions. The Court conclude that the emissions-related provisions of EPA’s 2013 Rule are permissible but that the affirmative defense for private civil suits exceeds EPA’s statutory authority. The court granted the petition in part and vacated the portion of the Rule pertaining to the affirmative defense. All other aspects of the petition were denied.

Posted in Clean Air, EPA, Federal Cases