Deck 50: Environmental Law and Land Use Controls

Question 1

The National Environment Policy Act was passed to enhance and preserve the environment. Which of the following is not true
a. The act applies to all federal agencies.
b. The act requires that an environmental impact statement be provided if any proposed federal legislation may significantly affect the environment.
c. Enforcement of the act is primarily accomplished by litigation of persons who decide to challenge federal government decisions.
d. The act provides generous tax breaks to those companies that help accomplish national environmental policy.

Answer 1

a) The National Environmental Policy Act (NEPA) concerns the environmental effects of federal projects.
All federal agencies must comply with the act is a true statement.
b) The act requires an environmental impact statement to be made.
Thus, this is a true statement.
c) Citizens who see that a federal agency not complying with NEPA may sue the agency.
This is a true statement.
d) This is not a provision in the NEPA.
This statement is false.

Question 2

Philip Carey Co. owned a tract of land in Plymouth Township, Pennsylvania, on which it deposited a large pile of manufacturing waste containing asbestos. Carey sold the land to Celotex, and Celotex sold the land to Smith Land Improvement Corp. The EPA notified Smith that unless it took steps to eliminate the asbestos hazard, the EPA would do the work and pursue reimbursement. Smith cleaned up the land to the EPA's satisfaction at a cost of $218,945.44. Smith asked Celotex and Carey for reimbursement. Which firms have liability for the cleanup costs [Smith Land Improvement Corp. v Celotex, 851 F2d 86 (3d Cir)]

Answer 2

Case summary:
P owned a land on which it dumps manufacturing waste. Later, it sold the land to C which was further sold by C to S. S got a notice to remove the waste from the land as the waste was hazardous. S cleaned up the land for which it incurred huge cost. S asked C to reimburse the cost as a liability.
Facts to this case
• S purchased land which contained asbestos (a hazardous material).
• The hazardous materials were a result of previous owner P who later sold it to C whom sold it to S.
• S was required to clean up the asbestos.
• S cleaned up the asbestos but asked the prior owners for reimbursement of the cleanup.
Case Issue
The issue is whether S can receive reimbursement for cleaning up hazardous material on the land he purchased. Note that the Superfund Act holds landowners responsible for hazardous materials on their land.
Relevant Terms, Laws, and Cases
Environmental Protection Agency (EPA) - federal agency responsible for pollution control and penalizing non-complier of government environmental standards.
Superfund Act - is an act which holds landowners and others responsible for hazardous material on a land liable for the cleanup of the hazardous material.
Analysis and Conclusion
The court held for S. They argued that:
• Under the Superfund Act, all owners of the hazardous site are responsible for the cleanup cost.
• S cleaned up the site and incurred cost.
• Since S was owner of the site he may not receive the whole reimbursement for clean up , but he may receive a portion of the amount that the prior owner's P and C are responsible for.
Thus, all owners are liable for the clean-up and the prior owners must contribute their amount of the hazard cost to S.

Question 3

Which of the following actions should a business take to qualify for leniency if an environmental violation has been committed

Answer 3

Businesses which are prudent to act in face of an environmental violation will have lessened penalties from the government. Thus, conducting environmental audits and self reporting violations will help to reduce penalties.
The answer is a.

Question 4

The McConnells bought a home in Sherwood Estates. The land was subject to a restrictive covenant that "no building, fence, or other structure" could be built on the land without the approval of the developer of the property. The McConnells built a dog pen in their yard that consisted of a cement base with fencing surrounding the base. They claimed that approval was not required on the theory that the restrictive covenant did not apply because it showed an intent to restrict only major construction, not minor additions to the landscape. A lawsuit was brought to compel the McConnells to remove the dog pen because prior approval had not been obtained. Are restrictive covenants applied this expansively to homeowners Must the McConnells have prior approval [Sherwood Estates Homes Ass'n, Inc. v McConnell, 714 SW2d 848 (Mo App)]

Question 5

General Automotive operates Grand Auto Parts Stores, which receive used automotive batteries from customers as trade-ins. General's policy in disposing of these batteries had been to drive a screwdriver through each spent battery and then sell them to a battery-cracking plant operated by Morris P. Kirk Sons, Inc., which extracted and smelted the lead. After the lead was extracted from the batteries, Kirk washed and crushed the battery casings, loaded them into a dump truck, and then dumped them. Tons of pieces of crushed batteries were dumped onto Catellus Development Corp.'s property. Under CERCLA, Catellus sought to recover from General the costs of cleaning up the hazardous battery parts from its property. General maintained that it was not liable because it sold the batteries to Kirk, and Kirk did the dumping. Was General correct [Catellus Development Corp. v United States, 34 F3d 748 (9th Cir)]

Question 6

A zoning ordinance of the city of Dallas, Texas, prohibited the use of property in a residential district for gasoline filling stations. Lombardo brought an action against the city to test the validity of the ordinance. He contended that the ordinance violated the rights of the owners of property in such districts. Do you agree with this contention [Lombardo v City of Dallas, 73 SW2d 475 (Tex)]

Question 7

Taback began building a vacation home on a parcel of wooded land. It was to be a three-story house, 31 feet high. This height violated the local zoning ordinance that limited residential homes to two and one-half stories, not exceeding 35 feet. When Taback learned of this violation, he applied for a zoning variance. Because of the delay of the zoning board and because winter was approaching, Taback finished the construction of the building as a three-story house. At a later hearing before the zoning board, he showed that it would be necessary for him to rebuild the third floor to convert the house into a two and one-half story house. The zoning board recognized that Taback's violation could not be seen from neighboring properties. Was Taback entitled to a zoning variance [Taback v Town of Woodstock Zoning Board of Appeals, 521 NYS2d 838 (App Div)]

Question 8

Bermuda Run Country Club, Inc., developed a tract of land, formed a country club, and sold some of the lots to individual buyers. Following various sales and litigation, an agreement was executed giving the board of governors power to veto club members' assessments. The agreement declared that this was a restrictive covenant that would run with the land and bind subsequent owners. The corporation that later purchased the country club claimed it did not have that effect. Was the provision in question a restrictive covenant that ran with the land [Bermuda Run Country Club, Inc. v Atwell, 465 SE2d 9 (NC App)]

Question 9

The Stallcups lived in a rural section of the state. In front of their house ran a relatively unused, unimproved public county road. Wales Trucking Co. transported concrete pipe from the plant where it was made to a lake where the pipe was used to construct a water line to bring water to a nearby city. In the course of four months, Wales made 825 trips over the road, carrying from 58,000 to 72,000 pounds of pipe per trip and making the same number of empty return trips. Because the heavy use of the road by Wales cut up the dirt and made it like ashes, the Stallcups sued Wales for damages caused by the deposit of dust on their house and for the physical annoyance and discomfort it caused. Wales defended its position on the ground that it had not been negligent and that its use of the road was not unlawful. Decide. [Wales Trucking Co. v Stallcup, 465 SE2d 44 (Tex Civ App)]

Question 10

Some sections of the city of Manitou Springs have hills of varying degrees of slope. To protect against water drainage and erosion, the city adopted a hillside zoning ordinance that required homes on hillsides to be surrounded by more open land than in the balance of the city. Sellon owned land on a hillside and claimed that the hillside ordinance was unconstitutional because it did not treat all homeowners equally. Was the ordinance valid [Sellon v City of Manitou Springs, 745 P2d 229 (Colo)]

Question 11

Patrick Bossenberry owned a house in a planned community area. Each lot in the area was limited by a restrictive covenant to use for a single-family dwelling. The covenant defined family as a blood or marital relationship between most of the occupants. Bossenberry rented his building to Kay-Jan, Inc., which wanted to use the building as a care home for not more than six adult mentally retarded persons. The neighbors sought to enjoin this use as a breach of the covenant. A number of Michigan statutes had been adopted that advanced the public policy of providing care for mentally retarded persons. Could the neighbors prevent the use of the property as a care home for mentally retarded adults [Craig v Bossenberry, 351 NW2d 596 (Mich App)]

Question 12

Kenneth and Mary Norpel purchased a house, and Kenneth attached a 35-foot flagpole to it. He did not obtain the permission of the architectural committee of the Stone Hill Community Association. This consent was required by a restrictive covenant to which the Norpel house was subject. The association objected to the flagpole from which Norpel then flew the American flag. The association brought an action to compel the removal of the pole. Norpel claimed that as a combat veteran of World War II, he had a constitutionally protected right to fly the American flag. Can he be compelled to remove the flagpole

Question 13

Which of the following remedies is available against a real property owner to enforce the provisions of federal acts regulating air and water pollution

Question 14

In 1997, Isbell purchased a building in San Diego with the intent to open an adult entertainment establishment there. Because this building was located within 1,000 feet of a residential area, however, a San Diego zoning ordinance precluded him from operating there. Isbell applied for a variance but was unsuccessful. He then filed suit, arguing that the city's ordinance violates the First Amendment, and that its standards for variances violate the equal protection clause. Can the city restrict the operation of this business What must the city be able to establish [Isbell v City of San Diego, 258 F3d 1108 (9th Cir)]

Question 15

Union Electric wishes to construct a new coalfired plant in the northeastern corner of Arizona. Union plans to use the maximum achievement technology for the scrubbers on the plant to reduce emissions. Will Union be able to obtain a permit from the EPA to build and operate the new power plant Discuss the issues that Union faces.

Question 16

Explain why a company would want to perform a self-audit to determine whether it has any environmental violations.

Question 17

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, which of the following parties would be liable to the Environmental Protection Agency (EPA) for the expense of cleaning up a hazardous waste disposal site
I) The current owner or operator of the site
II) The person who transported the wastes to the site
III) The person who owned or operated the site at the time of the disposal

A) I and II
B) I and III
C) II and III
D) I, II, and III

Question 18

Manufacturer's National Bank of Detroit had extended credit to Z Z Leasing and had taken a mortgage on Z Z's property as security for the line of credit. Z Z defaulted on its payments, and Manufacturer's took possession of the property. The EPA then notified the bank that underground storage tanks on the property were leaking hazardous materials and that the cleanup would be in the $10,000,000 range. Is Manufacturer's liable for the cleanup costs Are there other parties the EPA could pursue for the costs [Z Z Leasing, Inc. v Graying Reel, Inc., 873 F Supp 51 (DC)]

Question 19

Federal Oil Co. was loading a tanker with fuel oil when the loading hose snapped for some unknown reason and about 1,000 gallons of oil poured into the ocean. Federal Oil was prosecuted for this water pollution. It raised the defense that it had exercised due care, was not at fault in any way, and had not intended to pollute the water. What statutes could be used to prosecute Federal Oil What are the potential penalties