Archive for June, 2010

Unpublished zoning case weighs nonconforming use issue of maintenance vs. rebuild. Maintenance wins.

Wednesday, June 9th, 2010

In Players Pizza v. the City of Oshkosh, Players had a nonconforming parking lot.  As a general rule of zoning, the allowance of nonconforming uses and structures protects existing property rights, but are generally disfavored and eventually should be phased out.  Players’ parking lot surface had degraded and Players decided to resurface it.  This case turned on whether Players had performed “maintenance” and “repair” work, or a rebuild.  A rebuild would be forbidden under Oshkosh’s zoning code, but maintenance would be allowed.  The City staff had determined that it was a rebuild, but Players argued it was only maintenance.  The circuit court agreed with the City.  However, the appeals court disagreed. They first pointed out that the City had applied a section of it’s ordinance that didn’t apply because the parking lot hadn’t changed size.  Then the appeals court reviewed the facts and decided that the work that was performed was really a maintenance effort, not a rebuild.  The surface had been remilled and reused, and the base had not been changed.  The contractor testified that what he considered a rebuild would have been much more extensive work than what was done.  The appeals court reversed – based on the dictionary definitions of the term maintenance, it felt the evidence clearly showed only a maintenance had been performed.  I think this case might have gone either way – there’s definitely a grey area in zoning where maintenance, repair and remodeling meet rebuilding and new construction, and the issue is very fact intensive.

FTC Again Delays Red Flag Rules

Wednesday, June 2nd, 2010

The FTC announced that it will once again delay enforcement of the Red Flag Rules, this time until December 31, 2010.  The Red Flag Rules are regulations created by the FTC requiring creditors to take actions to guard against identity theft.  For further information, see the FTC news release.  Municipalities are subject to the rules if they defer payments for multiple transactions (in other words, if they are considered creditors – generally any municipal utility would probably fall under the definition of creditor).