Ohio Village Adopts State's First "Community Bill of Rights" to Prevent Shale Development
Recently, the Yellow Springs Village Council voted to adopt a “Community Bill of Rights” ordinance banning shale gas drilling and related activities in the village. The Bill of Rights declares the fundamental rights of residents to clean air and water, and to protect the rights of nature.
Yellow Springs is the first municipality in Ohio to enact a local Bill of Rights and has directed toward prohibiting shale gas drilling and related injection wells. While Yellow Springs is located in southwest Ohio, away from the Utica and Marcellus shale plays in the eastern part of the State, the geological formations there are ideal for storing fracing wastewater.
Yellow Springs’ Bill of Rights is just another step toward a showdown between local versus state law in the regulation of oil and gas operations. Like our neighbors in Pennsylvania and New York, more Ohio communities are taking steps to regulate oil and gas within their borders and are putting proposals to voters this election day. 
Ohio law, however, grants sole and exclusive authority to the Ohio Department of Natural Resources (“ODNR”) to regulate oil and gas activities, and provides those activities are matters of “general statewide interest” requiring “uniform statewide regulation.” Further, Ohio Revised Code Chapter 1509 and the rules adopted under it constitute a “comprehensive plan” for the regulation of oil and gas. Accordingly, ODNR’s position has been that Ohio law gives it the sole authority to regulate oil and gas wells, from the issuing of permits for new wells through the time inactive wells are plugged.
Inspired by the limited success of municipalities in Pennsylvania and New York, Ohio local governments continue to attempt to regulate through ordinances, zoning, and now a bill of rights, to attempt to limit oil and gas operations in their communities.
How successful these local regulations will be may depend upon a court decision in Preferred Fluids Management, LLC v. the City of Mansfield (N.D. Ohio Case No. 1:2012cv01804). Preferred is seeking to construct two injection wells in an industrial park in Mansfield, but was blocked by local ordinances prohibiting such wells. Preferred is alleging that the Mansfield ordinances are in direct conflict with the state’s exclusive and comprehensive authority over oil and gas operations.
A hearing is set for this case on Oct. 19 in Cleveland. Both landowners and oil and gas operators will keep an eye on this case and the polls next month in what could affect shale development in Ohio.
The Yellow Springs’ Bill of Rights, however, remains significant in its own right. It offers a new wrinkle to the state versus local power debate as it grants rights directly to the citizens, and not to a local government. How Ohio courts distinguish between local governments and citizens in the context of oil and gas activities, if at all, is another developing issue.
Ohio and Kentucky statutes require residential builders to provide certain notice to home buyers. While there is no new law on this, the construction attorneys of Ulmer & Berne LLP have seen this issue come to light many times this past year; thus, prompting this refresher alert on Ohio and Kentucky notice statutes..jpg)
New rules promulgated under Ohio’s Public Construction Reform (the “Reform”) have been released by the Joint Committee on Agency Rule Review. The new rules include: (1) Rules for Prequalification of Prospective Bidders on Subcontracts; (2) Rules for Best Value Selection of Construction Manager and Design-Build firms; and (3) Rules for the Form of Subcontracts. The Rules for Prequalification and Best Value become effective 2/02/12, and the Rules for the Form of Subcontracts became effective 12/26/11. The Joint Committee also released a new form of subcontract for public jobs in Ohio. 
Commencing January 1, 2012, legal, real estate and insurance professionals will be required to advise clients of 
The Ohio Legislature passed House Bill 153 on May 5, 2011. H.B. 153—a budget bill—which includes significant changes for Ohio’s public construction projects. Some changes will become effective on September 28, 2011, but others are forecast to become effective in early 2012. As such, we will have to wait a while longer to experience the full effect of the public construction reform.
The Illinois General Assembly has recently amended the 
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Ohio House Bill 292, which prohibits the future creation of transfer fee covenants, was signed into law on June 14, 2010 and will become effective on September 13, 2010. Transfer fee covenants in effect prior to September 13, 2010 are not affected by the new law.
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Parts 1 and 2 of this series on “The Commercial Real Estate Loan Market” examined differing views on the fallout of current and anticipated loan failures in the commercial real estate (“CRE”) industry. While all agree that losses will be significant, just how significant remains to be seen. Unfortunately, we don’t have a crystal ball to let us know which scenario or combination of factors will play out, and, like any forecast, we have to accept that there will be yet unknown events and circumstances which change the outcome. In the meantime, however, it is important for any participant in the CRE industry to understand the economic factors which shape the business decisions and perspectives of the players who hold and/or deal in CRE. These forces will impact all aspects of the CRE market, including, but not limited to, the market for and terms of CRE sales, the availability of financing and underwriting requirements, workout options (or lack thereof) for troubled CRE loans, and local and regional development. Understanding of the macroeconomic and microeconomic environment and acting strategically using that knowledge is an important key to success – or, perhaps, given the current economic climate, survival – in not only the CRE industry but any industry. Regardless, there are now and going to be abundant opportunities !
In contrast to the recent position taken by the Congressional Oversight Panel in their February 10, 2010 report mentioned in Part 1 of this series, there are economists, businesspeople and policymakers who have a less bleak forecast for the commercial real estate (“CRE”) loan market. One such example of this “non-crisis” position was presented in a research report by UBS Financial Services, Inc. entitled “
The commercial real estate (“CRE”) loan market is floundering and is expected to increasingly experience high levels of losses over the next several years. The question on interested minds is whether the fall-out from CRE loan failures will mimic the devastation caused by the crisis in the residential mortgage loan market. Recently, the Congressional Oversight Panel, established pursuant to the Emergency Economic Stabilization Act of 2008, issued a bleak, if not frightening, report on the implications these anticipated losses in the CRE market and repercussions to the greater economy. The report, entitled “
The 
“I have some prime swampland in Florida to sell you” is a slang expression used to poke fun at the gullibility of a person. This saying is based on events of the 1960s and 1970s where local scammers would attempt to induce out of state purchasers to acquire “lucrative” land which, in reality, turned out to be worthless, undevelopable plots. The federal Interstate Land Sales Full Disclosure Act (“Act”), 15 U.S.C. §§1701, et. seq., passed by Congress in 1968 and patterned after the Securities Law of 1933, was a reaction to that and other scams involving the sale of land. The Act was intended to provide a mechanism to inform buyers of land and to curb fraud and misrepresentation by sellers. In short, the Act forbids a “developer” or “agent” (for purposes of this article, a “seller”) who uses interstate commerce to sell or lease any nonexempt “lot” without first filing an acceptable “statement of record” with the U.S. Department of Housing and Urban Development and delivering to the buyer, prior to the sale, a “property report” which meets the requirements of the Act. When a buyer brings an action against a seller under the Act, the remedy sought, more times than not, is complete rescission of the purchase (as opposed to damages or equitable relief). While not all land sales require compliance with the Act (such sales being exempt under §1702 of the Act), for those sales and sellers that do fall under the jurisdiction of the Act, failure to comply can have serious consequences. 
In 2001 when Congress repealed the estate tax for the far off year of 2010, with the estate tax returning in full force in 2011, everyone assumed that Congress would act to revise the 2001 law before January 1, 2010. However, to everyone’s surprise, Congress did not act. The new year has come and gone and so has the tax—at least for now. But is this a good result? Is 2010 a “good year to die”? 
Representatives Ken Yuko and Brian Williams recently introduced House Bill 408, which would create a condominium “super lien” in Ohio. Ohio condominium associations currently 
The federal government recently announced several changes to U.S. immigration legislation. Two key topics involve increased enforcement efforts of the Immigration and Customs Enforcement (ICE) and changes in request for prevailing wage procedures. 
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On October 30, a coalition of federal regulators issued the 
In 2005 the United States Supreme Court in 
We have been following
Currently pending before the Ohio General Assembly is 
One of my business law professors often started the class with an anecdote that had nothing to do with anything on our syllabus. One morning he entered the class and told of the frustrations he had in trying to execute a deed on behalf of his wife who was out of the country and for whom he held a perfectly drafted and executed power of attorney. Alas, the title company refused to accept the deed. 
Ohio’s Budget Bill
Some time ago in this space 
In December 2007, a Lake County Common Pleas Court judge issued a landmark decision holding, among other things, that an owner of real estate that touches Lake Erie owns title extending as far as the water’s edge. State ex rel. Merrill v. Ohio Dept. of Natural Resources (2007), Lake County Common Pleas Case No. 04CV001080. Lake County is one of eight Ohio counties which contain Lake Erie shoreline.
A perpetual letter of credit (LOC) does not last as long as you might think.
The Home Affordable Modification Program (HAMP) was announced on February 18, 2009. The first set of details were published by the Treasury Department on March 4, 2009. Those details were revised and republished on April 21, 2009 and updated on June 8, 2009.
So you finally got a buyer for your house after having it on the market for nine months. As frosting on the cake the buyer says she can close within a week. 
The U.S. Court of Appeals for the District of Columbia recently upheld a 2007 
Congress has recently introduced a number of measures in response to the problems caused by defective drywall 
US EPA has amended the Standards and Practices for All Appropriate Inquiries (“AAI”) to acknowledge another ASTM standard can be used to satisfy the AAI requirement for the landowner defenses to liability under Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) – innocent landowners, bona fide prospective purchasers, and continuous property owners. In addition to ASTM International Standard E1527-05, you can now use, when applicable, ASTM International Standard E2247-08 entitled Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property (“ASTM E2247-08”).
In the past, we have spoken about grants and loans available through the 
The rights of owners and tenants in post-foreclosure property have been dramatically altered by new legislation signed by President Obama. On May 20, 2009, President Obama signed the “
Ohio’s Transfer on Death Statute became effective at the beginning of 2002. Prior to the law being passed, there was much buzz in the real estate and trusts and estates legal community about why Ohio did not have a vehicle permitting owners of real estate to transfer real property on death to a named beneficiary, thereby avoiding probate of the property. After all, bank accounts could be transferred by naming a transfer on death beneficiary. Why could the same not be done for real estate? Ohio’s transfer on death statute had several problems, most notably the ambiguity with respect to whether or not joint tenants could be transfer on death grantors and, if so, what was the effect of the death of one, but not all, joint tenants? The debate and discussion became so heated that a multiple choice question was circulated on the Ohio State Bar Association’s Real Property Listserv suggesting five different vesting possibilities with the sixth multiple choice answer being “I don’t give a rat’s @$$. I have heard entirely too much on this topic and I want to be left alone.” Choice 6 knocked all others out of the ballpark. 
How low will they go?
Two foreclosure related bills of great interest to both borrowers and lenders were introduced in the Ohio House of Representatives in February but are moving slowly, if at all, through the legislative process..jpg)
Effective June 1, 2009 all residential properties (single family homes, condominium units and buildings with up to four units) in Cook County, Illinois will become subject to the amendments to the Illinois Notary Public Act contained in 
In Woda Ivy Glen Limited Partnership v. Fayette County Board of Revision (2009), 121 Ohio St.3d 175, the Supreme Court of Ohio considered whether restrictions on real property resulting from participation in the federal low-income housing tax credit program should be taken into account when appraising the property for real estate tax purposes..jpg)
How can you safely deposit the funds of a condominium association, development entity, municipality or any entity which needs to know that there is little or no risk of loss to the deposited funds ? The .jpg)
"Every night before I rest my head; See those dollar bills go swirling ’round my bed."
As I mentioned in an earlier post, Ohio Governor Ted Strickland recently signed legislation creating a new “land bank” in Cuyahoga County. Like a dose of cold medicine, .jpg)
The Stimulus Plan is supposed to create jobs. In the retail sector, jobs will be created only if consumers start spending again. Some of you may remember the eighties when consumers were able to deduct credit card interest from taxable income. With the need to motivate consumers to spend, reinstituting this kind of tax credit should be part of the plan. The tax credit would apply only if consumers spend. This kind of direct assistance would seem to be more effective than building water parks. 
involve a reinstatement provision and was decided differently) went like this: Lender brought foreclosure action against borrower. Borrower sought to reinstate the loan by paying the full amount due prior to judgment. Under the mortgage, borrower was required to pay lender’s foreclosure related attorney fees to receive reinstatement. 
In March 2007, Governor Strickland created the “Ohio Foreclosure Prevention Task Force” to address the ever-increasing number of foreclosures plaguing the state. The 
On January 27, 2009, the front page of the Columbus Dispatch read, “