by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Here is a bunch of interesting recent words and phrases interpretations. Each, in its own way, runs against what might be argued to be a common interpretation of the word in question.
These items are from the most recent version of the ABA Quarterly Report on Recent Developments. As I indicate in the "boiler plate" below, this hardcopy report, which has all recent DD's and much more, is available for a very nominal cost from the ABA, but access is restricted to members of the Section. Section membership is also relatively nominal if you're already an ABA member.
"AUTO REPAIR AND MAINTENANCE:" Zoning ordinance prohibiting "repair and maintenance of motor vehicles" in residential areas, designed to bar landowners from performing auto repair work in their garage, did not violate due process because of vagueness, since ordinance was commonly understood to allow landowners to do simple repairs and standard maintenance on their property. *Zangrilli v. Borough of Dormont, 692 A.2d 656 (Pa.Commw. 1997), app. denied, 700 A.2d 446 (Pa. Aug. 19, 1997). *
"ENLARGEMENT:" An interior expansion into lower level of building for adult entertainment business does not constitute an enlargement prohibited by zoning ordinance. *DejaVu of Hammond v. City of Lake Station, 681 N.E.2d 1168 (Ind. App. 1997). * Under the definitions provided, the expansion into the lower level of the existing building was an "extension" and not a prohibited "enlargement," but the storage area constructed as an addition to the existing building was a prohibited enlargement.
"LANDS UNDER CULTIVATION:" Backyard garden does not constitute "land under cultivation" for purposes of attorney's fee provision in trespass statute. * Quarterman v. Kefauver, 64 Cal. Rptr. 2d 741 (Cal. App. 1997)* The court had awarded almost $150,000 in damages when a paint company permitted lead paint dust from its project on an adjacent house to contaminate the plaintiff's backyard garden in a San Francisco row house area. The court here denied an additional claim for $420,000 in attorney's fees, holding that the statute authorizing such fees was intended to protect agricultural and farm property from invasion, and not back yard gardens.
"MATERIALS:": Unpaid worker's compensation premiums owed by subcontractor were not "materials" or "services" under mechanics' lien statute, as premiums had not played any part in the process of physically enhancing the property. *Thompson and Peck, Inc. v. Division Drywall, 696 A.2d 326 (Conn. 1997). *
"MINING:" Removal of fill material by contractor in order to prepare site for construction amounted to mining without a permit, under state Noncoal Surface Mining Conservation and Reclamation Act, and penalties could be assessed against contractor by Department of Environmental Protection. *Linde Enterprises, Inc. v. Dept. of Environmental Protection, 692 A.2d 645 (Pa.Commw. 1997), app. denied, 700 A.2d 445 (Pa. Sept. 11, 1997),* discussed under the heading: "Mines and Minerals; Definition of 'Mining.'"
"SERVICES:": Unpaid worker's compensation premiums owed by subcontractor were not "materials" or "services" under mechanics' lien statute, as premiums had not played any part in the process of physically enhancing the property. *Thompson and Peck, Inc. v. Division Drywall, 696 A.2d 326 (Conn. 1997). * Consequently, the involved insurance company cannot not assert a mechanic's lien against property where insured subcontractor was working.
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or firstname.lastname@example.org
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