In a state as small as Rhode Island, and with as much prized shoreline, boating and fishing areas, it is easy to see why many developers would love to get their hands on any piece of land at all and turn it into the next great getaway or resort for tourists.
And although RI does rely on tourist business to some degree, selling our shoreline properties and quiet hamlet areas to the highest bidder certainly seems like unfair zoning habits.
The first and most important aspect in determining zoning laws and rezoning areas is in keeping the needs of the community at the forefront of any kind of progress.
As an example, a situation in Glocester RI that has been ongoing is the sale of a building located in an area that already has several small business owners trying to expand and provide more jobs, economic stability and ecologically sound products and practices to the small community. Attempts to purchase the building for the purpose of expansion however, have been fought by the town solicitors and zoning committee who would like the building to be purchased by a large land developer who has the workings for a hotel or other tourist attraction in mind.
The property is not zoned as residential, and residents have been fighting to keep it that way or the developers will have their way and rezone it for residential to build whatever they want, regardless of the needs or desires of the people of Glocester.
The residents of Glocester live there because it is a protected, small, controlled community where they can be sure of their surroundings and their needs being met. Allowing big business to overtake their community would undermine the growth, stability and sense of community that is inherent in an area like this.
Zoning laws and ordinances, when used wisely and with the community's interests and well-being in mind, are a great way to establish order to thriving towns and their citizens. However, when that right is abused, zoning rules can become the very thing that ruins an entire community.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Friday, January 14, 2011
Tuesday, January 11, 2011
Pedestrians are Struck at Dangerous Intersection in Taunton
Two pedestrians were struck by drivers at a dangerous and busy intersection in Taunton in one day. The intersection is known as a hazardous place to cross the road, having been host to many other victims being struck by moving vehicles.
Motor vehicle accidents involving pedestrians are not always fatal, however, can cause extremely serious injuries.
The article relating to this incident follows below.
2 pedestrians struck in less than 2 hours in Taunton
By CHARLES WINOKOOR
Staff Writer
Jan 03, 2011
Taunton — Within a span of less than two hours on Monday, two pedestrians were struck by cars while crossing busy streets in Taunton.
A pool of blood and a pile of clothing were telltale signs of the first incident — an auto-pedestrian crash late in the afternoon that police said left an elderly man seriously injured while trying to cross Washington Street.
The unidentified 75-year-old victim was struck by a van just after 4 p.m. and taken to Rhode Island Hospital with trauma to his head and torso, according to a Taunton police officer on the scene.
The officer declined to reveal the man’s identity pending notification of next of kin.
Police said the victim was crossing over from the Dunkin’ Donuts side of the street toward Leahy Liquors at 16 Washington St. when he was hit.
The victim was conscious while being loaded into the ambulance, police said. The van that hit him was towed and impounded, but police did not confirm whether a citation had been issued to its driver.
The incident resulted in police cordoning off a block and a half of Washington Street — from Frederick Martin Parkway to Tremont Street — for well over an hour while accident reconstructionist Lt. Paul Roderick compiled data for a report.
At one point, an officer could be seen shoveling dirt and snow to cover the blood in the street.
The second incident occurred at approximately 6:40 p.m., when a middle-aged woman was hit while walking across Broadway near the corner of East Broadway Street and Cumberland Farms, witnesses said.
Fifteen-year-old Bryce O’Keefe, of Taunton, said he was standing outside after buying some food in the convenience store when he saw a small sedan hit the woman as she tried crossing the busy thoroughfare.
O’Keefe said she was conscious after being thrown to the pavement.
“She sat up and started screaming,” said O’Keefe, adding that it appeared the victim, who had been standing on the sidewalk with another woman before stepping off the curb, was not directly in the crosswalk when she tried crossing Broadway.
A police officer on the scene said the victim was transported to a Rhode Island hospital, but offered no additional information. Unlike the Washington Street incident, it took police less than half an hour to clean up and clear the second scene.
The Washington Street area where the first victim was struck has a reputation as being a dangerous for pedestrians.
Although Mill River Professional Center, with its Dunkin’ Donuts and abutting CVS, has been developed and improved over the past decade, pedestrians — especially those not crossing at Tremont Street, where there are traffic lights and a crosswalk — still face a virtual gauntlet getting from one side to the other.
“This has always been a bad area right here — it’s horrible,” said Pedro Lopes, 30, who lives on Cohannet Street on the opposite side of the commercial plaza.
In the past, elderly residents of Mill River Apartments, located at the corner of Martin Parkway and Washington Street, have appealed to city officials, claiming there is no safe way for them to cross to CVS.
In December 2008, a 64-year-old city man was struck and killed a block and a half away as he tried walking across Oak Street.
Police said the driver in that case, Robert Bacon, of South Carolina, was drunk and a repeat OUI offender when he drove his pickup into Norman Lambert, who was declared dead shortly thereafter at Morton Hospital and Medical Center.
On Monday, Stephen Tavares, 49, stood on the sidewalk in the cold, early evening air in front of Leahy Liquors, as police prepared to re-open the Washington Street block.
Although he didn’t witness the elderly man being struck, Tavares said he knows firsthand how dangerous Taunton is when it comes to pedestrian safety.
Tavares said both he and his girlfriend were injured downtown on Oct. 27, when they were hit by a car while walking from Broadway to the Taunton Green.
“We were right in the crosswalk,” Tavares said.
He said the driver was talking on her cell phone and initially didn’t slow down after hitting his girlfriend, despite the fact she had been tossed over the car’s hood.
“I was pounding on the car to get her to stop, otherwise she would have squished her,” Tavares said.
His girlfriend, he said, sustained a bone-chip injury to her ankle, as well as an injury to her back and elbow. Tavares said he came away with one broken toe as a result of his foot being run over by the woman’s car.
And, unlike Monday’s auto-pedestrian incident on Washington Street, which occurred after sundown, Tavares said he and his girlfriend were struck at noon.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Motor vehicle accidents involving pedestrians are not always fatal, however, can cause extremely serious injuries.
The article relating to this incident follows below.
2 pedestrians struck in less than 2 hours in Taunton
By CHARLES WINOKOOR
Staff Writer
Jan 03, 2011
Taunton — Within a span of less than two hours on Monday, two pedestrians were struck by cars while crossing busy streets in Taunton.
A pool of blood and a pile of clothing were telltale signs of the first incident — an auto-pedestrian crash late in the afternoon that police said left an elderly man seriously injured while trying to cross Washington Street.
The unidentified 75-year-old victim was struck by a van just after 4 p.m. and taken to Rhode Island Hospital with trauma to his head and torso, according to a Taunton police officer on the scene.
The officer declined to reveal the man’s identity pending notification of next of kin.
Police said the victim was crossing over from the Dunkin’ Donuts side of the street toward Leahy Liquors at 16 Washington St. when he was hit.
The victim was conscious while being loaded into the ambulance, police said. The van that hit him was towed and impounded, but police did not confirm whether a citation had been issued to its driver.
The incident resulted in police cordoning off a block and a half of Washington Street — from Frederick Martin Parkway to Tremont Street — for well over an hour while accident reconstructionist Lt. Paul Roderick compiled data for a report.
At one point, an officer could be seen shoveling dirt and snow to cover the blood in the street.
The second incident occurred at approximately 6:40 p.m., when a middle-aged woman was hit while walking across Broadway near the corner of East Broadway Street and Cumberland Farms, witnesses said.
Fifteen-year-old Bryce O’Keefe, of Taunton, said he was standing outside after buying some food in the convenience store when he saw a small sedan hit the woman as she tried crossing the busy thoroughfare.
O’Keefe said she was conscious after being thrown to the pavement.
“She sat up and started screaming,” said O’Keefe, adding that it appeared the victim, who had been standing on the sidewalk with another woman before stepping off the curb, was not directly in the crosswalk when she tried crossing Broadway.
A police officer on the scene said the victim was transported to a Rhode Island hospital, but offered no additional information. Unlike the Washington Street incident, it took police less than half an hour to clean up and clear the second scene.
The Washington Street area where the first victim was struck has a reputation as being a dangerous for pedestrians.
Although Mill River Professional Center, with its Dunkin’ Donuts and abutting CVS, has been developed and improved over the past decade, pedestrians — especially those not crossing at Tremont Street, where there are traffic lights and a crosswalk — still face a virtual gauntlet getting from one side to the other.
“This has always been a bad area right here — it’s horrible,” said Pedro Lopes, 30, who lives on Cohannet Street on the opposite side of the commercial plaza.
In the past, elderly residents of Mill River Apartments, located at the corner of Martin Parkway and Washington Street, have appealed to city officials, claiming there is no safe way for them to cross to CVS.
In December 2008, a 64-year-old city man was struck and killed a block and a half away as he tried walking across Oak Street.
Police said the driver in that case, Robert Bacon, of South Carolina, was drunk and a repeat OUI offender when he drove his pickup into Norman Lambert, who was declared dead shortly thereafter at Morton Hospital and Medical Center.
On Monday, Stephen Tavares, 49, stood on the sidewalk in the cold, early evening air in front of Leahy Liquors, as police prepared to re-open the Washington Street block.
Although he didn’t witness the elderly man being struck, Tavares said he knows firsthand how dangerous Taunton is when it comes to pedestrian safety.
Tavares said both he and his girlfriend were injured downtown on Oct. 27, when they were hit by a car while walking from Broadway to the Taunton Green.
“We were right in the crosswalk,” Tavares said.
He said the driver was talking on her cell phone and initially didn’t slow down after hitting his girlfriend, despite the fact she had been tossed over the car’s hood.
“I was pounding on the car to get her to stop, otherwise she would have squished her,” Tavares said.
His girlfriend, he said, sustained a bone-chip injury to her ankle, as well as an injury to her back and elbow. Tavares said he came away with one broken toe as a result of his foot being run over by the woman’s car.
And, unlike Monday’s auto-pedestrian incident on Washington Street, which occurred after sundown, Tavares said he and his girlfriend were struck at noon.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Monday, January 3, 2011
Greenhouse Gas Ruling in 2nd Circuit
In a recent 2nd circuit decision in Connecticut, the Court held that "States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide emissions that contribute to global warming."
On its face the decision seems to be a landmark one, however, at 139 pages long, the only things for certain that have been conceded are that "the plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable." There was no mention or decision reached on the merits of the claim, and it was specifically stated that common law claims were not above federal legislative or rulemaking powers.
Still, the case could highlight the beginning of notice by the judicial system of some of the more prevalent environmental issues facing us today, and how the judiciary can have an impact on which legislation is allowed to control our future.
The full article follows below.
2nd Circuit Allows Public Nuisance Suit Against Greenhouse Gas Emitters
Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009)
By James Rusk
States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO2") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears to open a new front in the fight over climate change, its full import is uncertain. The court held only that plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable. It did not reach the merits of plaintiffs' claims, and it expressly noted that those common law claims could yet be displaced by federal legislative or rulemaking action. With that in mind, the case could prove more significant as an additional impetus for national greenhouse gas regulation than as a tool for judicial control of emissions.
Background
"There is hardly a political question in the United States which does not sooner or later turn into a judicial one." –Alexis De Tocqueville, Democracy In America
California and seven other states, as well as New York City, filed suit in 2004 against a group of electric power companies that collectively own and operate fossil-fuel-fired power plants in twenty states. Three private land trusts separately sued the same defendants, which allegedly are the five largest emitters of CO2in the United States and account for approximately 10 percent of all U.S. CO2 emissions. The plaintiffs alleged that defendants' CO2 emissions contribute to a public nuisance under federal common law, resulting in various current and future injuries to plaintiffs' residents and property. They sought injunctive relief requiring defendants to abate the nuisance by first capping their CO2 emissions and then reducing those emissions by a fixed percentage each year.
Justiceability
In a consolidated action, the district court dismissed all the plaintiffs' claims on the ground that they presented a non-justiceable political question. Connecticut v. American Electric Power Co., 406 F.Supp. 2d 265, 268 (S.D.N.Y. 2005). In the district court's view, deciding plaintiffs' complaints would require a balancing of the environmental and social costs of greenhouse gas emissions against the economic and social costs of reducing those emissions. According to the court, that balancing was impossible to perform without first making an "initial policy determination" of a type that was clearly reserved to the elected branches of government and which those branches had so far refused to make. Second Circuit slip op. at 13, 31.
The Court of Appeals reversed, holding that although the issue of climate change "may have political implications," plaintiffs' claims did not present a nonjusticeable political question. Plaintiffs sought to limit emissions from specific power plants to redress alleged injuries caused by those emissions, not to "establish a national or international emissions policy." Id. at 22-23 (emphasis in original). Therefore, the case was essentially just a complex common law nuisance action, which the federal courts "have successfully adjudicated . . . for over a century." Id. at 24. Seen in this light, the resolution of plaintiffs' claims would not require the judiciary to overstep its constitutional boundaries. Id. at 22-23. Nor did the failure of the political branches to make an "initial policy determination" regarding CO2 emissions mean that the federal courts lacked the competence to decide the case or that plaintiffs should be denied any relief. Id. at 32-34.
Standing
Having decided that the district court dismissed the case in error, the Court of Appeals went on to determine that both the states and the trusts had made allegations sufficient to establish standing, at least at the pleading stage. The defendants had argued that plaintiffs could not establish either causation or redressability because global warming is caused by the aggregate effects of emissions around the world, most of which would not be reached by any remedy the court could provide. Significantly, the court rejected this argument. Second Circuit slip op. at 57-64. As the court noted, however, standing is relatively easy to establish at the pleading stage, where the court presumes that the plaintiffs' general allegations embrace the specific facts necessary to support a claim. But plaintiffs eventually must allege and prove specific facts sufficient to support injury, causation and redressability, to survive a motion for summary judgment and prevail at trial. Id. at 37.
Claims Under Federal Common Law
In the third and longest portion of its opinion, the Second Circuit considered whether plaintiffs could state a valid claim for public nuisance under the federal common law. The court looked to the Restatement to define a public nuisance under federal common law as "an unreasonable interference with a right common to the public." The court concluded that the states had stated a valid claim under this standard, based on their allegations of ongoing and future injury to public comfort and safety, natural resources and public property, and ecological values. Second Circuit slip op. at 67-70. The court also held that the trusts had stated a "private" claim for public nuisance, by alleging a harm sufficiently different from that suffered by the public at large. In the process, the court rejected the argument that only a state (or the federal government) may bring a public nuisance claim. Id. at 80-101.
Finally, the court held that plaintiffs' claims under federal common law had not been displaced by federal legislation or regulation. The federal Clean Air Act does give the Environmental Protection Agency ("EPA") the authority to regulate CO2 emissions as an "air pollutant," as the Supreme Court recently held in Massachusetts v. EPA, 549 U.S. 497 (2007). However, the EPA has not yet made the necessary findings to exercise that authority with respect to emissions from defendants' power plants. The EPA has proposed to make findings that would allow it to regulate greenhouse gas emissions from mobile sources such as automobiles. But those proposed findings would not, by themselves, impose any legal requirements on CO2 emissions, nor would they apply to stationary sources such as power plants. Accordingly, the Clean Air Act, at least currently, does not "actually regulate" CO2 emissions or "speak directly" to the issue raised by plaintiffs, so as to displace the federal common law that otherwise applies. Second Circuit slip op. at 114-117.
Conclusion
The Second Circuit allowed the plaintiffs' suit to proceed, remanding to the district court for further proceedings. However, the court disclaimed any opinion as to whether regulation of greenhouse gases by EPA under the Clean Air Act would displace plaintiffs' federal common law claims, "if and when such regulation should come to pass." Id. at 119. Moreover, the opinion necessarily omits any discussion of the climate change bills currently under consideration by Congress. With those limits in mind, it is possible that non-judicial events soon will limit the legal significance of the court's holding. As the court stated in conclusion, "'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases." Id. at 139 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 106 (1972).
This article was originally posted on Sheppard Mullin's Climate Change and Clean Technology blog, which can be found at www.cleantechlawblog.com.
James Rusk is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.
Neither the content on this blog nor any transmissions between you and Sheppard Mullin through this blog are intended to provide legal or other advice or to create an attorney-client relationship.
In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have. Before providing any such information to us, you must obtain approval to do so from one of our lawyers.
By choosing to communicate with us without such prior approval, you understand and agree that Sheppard Mullin will have no duty to keep confidential any information you provide.
-------------------------------------------------------------------
Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
On its face the decision seems to be a landmark one, however, at 139 pages long, the only things for certain that have been conceded are that "the plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable." There was no mention or decision reached on the merits of the claim, and it was specifically stated that common law claims were not above federal legislative or rulemaking powers.
Still, the case could highlight the beginning of notice by the judicial system of some of the more prevalent environmental issues facing us today, and how the judiciary can have an impact on which legislation is allowed to control our future.
The full article follows below.
2nd Circuit Allows Public Nuisance Suit Against Greenhouse Gas Emitters
Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009)
By James Rusk
States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO2") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears to open a new front in the fight over climate change, its full import is uncertain. The court held only that plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable. It did not reach the merits of plaintiffs' claims, and it expressly noted that those common law claims could yet be displaced by federal legislative or rulemaking action. With that in mind, the case could prove more significant as an additional impetus for national greenhouse gas regulation than as a tool for judicial control of emissions.
Background
"There is hardly a political question in the United States which does not sooner or later turn into a judicial one." –Alexis De Tocqueville, Democracy In America
California and seven other states, as well as New York City, filed suit in 2004 against a group of electric power companies that collectively own and operate fossil-fuel-fired power plants in twenty states. Three private land trusts separately sued the same defendants, which allegedly are the five largest emitters of CO2in the United States and account for approximately 10 percent of all U.S. CO2 emissions. The plaintiffs alleged that defendants' CO2 emissions contribute to a public nuisance under federal common law, resulting in various current and future injuries to plaintiffs' residents and property. They sought injunctive relief requiring defendants to abate the nuisance by first capping their CO2 emissions and then reducing those emissions by a fixed percentage each year.
Justiceability
In a consolidated action, the district court dismissed all the plaintiffs' claims on the ground that they presented a non-justiceable political question. Connecticut v. American Electric Power Co., 406 F.Supp. 2d 265, 268 (S.D.N.Y. 2005). In the district court's view, deciding plaintiffs' complaints would require a balancing of the environmental and social costs of greenhouse gas emissions against the economic and social costs of reducing those emissions. According to the court, that balancing was impossible to perform without first making an "initial policy determination" of a type that was clearly reserved to the elected branches of government and which those branches had so far refused to make. Second Circuit slip op. at 13, 31.
The Court of Appeals reversed, holding that although the issue of climate change "may have political implications," plaintiffs' claims did not present a nonjusticeable political question. Plaintiffs sought to limit emissions from specific power plants to redress alleged injuries caused by those emissions, not to "establish a national or international emissions policy." Id. at 22-23 (emphasis in original). Therefore, the case was essentially just a complex common law nuisance action, which the federal courts "have successfully adjudicated . . . for over a century." Id. at 24. Seen in this light, the resolution of plaintiffs' claims would not require the judiciary to overstep its constitutional boundaries. Id. at 22-23. Nor did the failure of the political branches to make an "initial policy determination" regarding CO2 emissions mean that the federal courts lacked the competence to decide the case or that plaintiffs should be denied any relief. Id. at 32-34.
Standing
Having decided that the district court dismissed the case in error, the Court of Appeals went on to determine that both the states and the trusts had made allegations sufficient to establish standing, at least at the pleading stage. The defendants had argued that plaintiffs could not establish either causation or redressability because global warming is caused by the aggregate effects of emissions around the world, most of which would not be reached by any remedy the court could provide. Significantly, the court rejected this argument. Second Circuit slip op. at 57-64. As the court noted, however, standing is relatively easy to establish at the pleading stage, where the court presumes that the plaintiffs' general allegations embrace the specific facts necessary to support a claim. But plaintiffs eventually must allege and prove specific facts sufficient to support injury, causation and redressability, to survive a motion for summary judgment and prevail at trial. Id. at 37.
Claims Under Federal Common Law
In the third and longest portion of its opinion, the Second Circuit considered whether plaintiffs could state a valid claim for public nuisance under the federal common law. The court looked to the Restatement to define a public nuisance under federal common law as "an unreasonable interference with a right common to the public." The court concluded that the states had stated a valid claim under this standard, based on their allegations of ongoing and future injury to public comfort and safety, natural resources and public property, and ecological values. Second Circuit slip op. at 67-70. The court also held that the trusts had stated a "private" claim for public nuisance, by alleging a harm sufficiently different from that suffered by the public at large. In the process, the court rejected the argument that only a state (or the federal government) may bring a public nuisance claim. Id. at 80-101.
Finally, the court held that plaintiffs' claims under federal common law had not been displaced by federal legislation or regulation. The federal Clean Air Act does give the Environmental Protection Agency ("EPA") the authority to regulate CO2 emissions as an "air pollutant," as the Supreme Court recently held in Massachusetts v. EPA, 549 U.S. 497 (2007). However, the EPA has not yet made the necessary findings to exercise that authority with respect to emissions from defendants' power plants. The EPA has proposed to make findings that would allow it to regulate greenhouse gas emissions from mobile sources such as automobiles. But those proposed findings would not, by themselves, impose any legal requirements on CO2 emissions, nor would they apply to stationary sources such as power plants. Accordingly, the Clean Air Act, at least currently, does not "actually regulate" CO2 emissions or "speak directly" to the issue raised by plaintiffs, so as to displace the federal common law that otherwise applies. Second Circuit slip op. at 114-117.
Conclusion
The Second Circuit allowed the plaintiffs' suit to proceed, remanding to the district court for further proceedings. However, the court disclaimed any opinion as to whether regulation of greenhouse gases by EPA under the Clean Air Act would displace plaintiffs' federal common law claims, "if and when such regulation should come to pass." Id. at 119. Moreover, the opinion necessarily omits any discussion of the climate change bills currently under consideration by Congress. With those limits in mind, it is possible that non-judicial events soon will limit the legal significance of the court's holding. As the court stated in conclusion, "'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases." Id. at 139 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 106 (1972).
This article was originally posted on Sheppard Mullin's Climate Change and Clean Technology blog, which can be found at www.cleantechlawblog.com.
James Rusk is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.
Neither the content on this blog nor any transmissions between you and Sheppard Mullin through this blog are intended to provide legal or other advice or to create an attorney-client relationship.
In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have. Before providing any such information to us, you must obtain approval to do so from one of our lawyers.
By choosing to communicate with us without such prior approval, you understand and agree that Sheppard Mullin will have no duty to keep confidential any information you provide.
-------------------------------------------------------------------
Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Thursday, December 30, 2010
Personal Injury Settlement Negotiations
When is it acceptable for a personal injury, auto accident, slip and fall, or other injury client to negotiate their own settlement with the insurance company?
The short answer to this question is never. Except in instance of property damage to a vehicle, it is rarely acceptable to negotiate your own settlement for personal injuries sustained in any negligence situation.
The main reason for this is that you cannot be fully informed of every legal aspect of your case, and therefore, are not in the best position to secure the full value for your settlement. Insurance adjusters are quite well versed in saving the insurance company money and will offer you the barest minimum of what you are actually entitled in the absence of professional legal representation.
For instance, you may not be aware that the statute of limitations in Rhode Island is only three years ~ meaning that you must settle your case in that time frame or commence a lawsuit in order to retain your right to any claims.
An additional reason not to attempt to settle your own case is that RI insurance adjusters will always attempt to settle the case quickly and for as little money as possible because they know that you do not have the means to pursue the matter. A qualified and experienced personal injury attorney will be in a position to file a lawsuit against the insurance company if a fair settlement is not reached within a specific time frame.
If you have been involved in a slip and fall, auto accident, or premises liability issue, contact a RI personal injury attorney immediately for a consultation.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
The short answer to this question is never. Except in instance of property damage to a vehicle, it is rarely acceptable to negotiate your own settlement for personal injuries sustained in any negligence situation.
The main reason for this is that you cannot be fully informed of every legal aspect of your case, and therefore, are not in the best position to secure the full value for your settlement. Insurance adjusters are quite well versed in saving the insurance company money and will offer you the barest minimum of what you are actually entitled in the absence of professional legal representation.
For instance, you may not be aware that the statute of limitations in Rhode Island is only three years ~ meaning that you must settle your case in that time frame or commence a lawsuit in order to retain your right to any claims.
An additional reason not to attempt to settle your own case is that RI insurance adjusters will always attempt to settle the case quickly and for as little money as possible because they know that you do not have the means to pursue the matter. A qualified and experienced personal injury attorney will be in a position to file a lawsuit against the insurance company if a fair settlement is not reached within a specific time frame.
If you have been involved in a slip and fall, auto accident, or premises liability issue, contact a RI personal injury attorney immediately for a consultation.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Wednesday, December 22, 2010
Ocean Zoning in RI ~ The First Offshore Wind Farm Set to Sail
In 2008, the Commercial Fisheries Center of RI newsletter dealt with, in startling detail and formality, the issue of an offshore windfarm and not only what that meant for the fishing industry in RI, but also for the much broader and controversial topic of ocean zoning. Did RI want to be the first in this, and would that necessarily mean the best as well?
With the advance of the wind farm project, the much deeper issue of ocean zoning got its first chance at debate in, appropriately enough, the Ocean State. The newsletter projected that by the year 2010, this year in fact, the coastal waters of the State would be mapped and zoned for uses beyond the fishing industry.
The wind farm was to be funded with $3.2 million from the "Renewable Energy Fund" belonging to RI, and reimbursed by the farm developer at a later date. Construction of the equipment that will be used to determine the exact location of the wind farm is only now being assembled for placement. The precise location of the future wind farm in the waters off the coast of North Kingstown has not been determined yet and will be subject to the readings on wind speed and direction gathered by this preliminary piece of equipment.
This RI Zoning and Ocean Zoning project will set the precedence for how other coastal communities will determine size, location and other critical factors in the placement of their own wind farms. Estimated projections for the East Coast alone are in the 50,000 turbine range with the advance and initiation of this technology.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
With the advance of the wind farm project, the much deeper issue of ocean zoning got its first chance at debate in, appropriately enough, the Ocean State. The newsletter projected that by the year 2010, this year in fact, the coastal waters of the State would be mapped and zoned for uses beyond the fishing industry.
The wind farm was to be funded with $3.2 million from the "Renewable Energy Fund" belonging to RI, and reimbursed by the farm developer at a later date. Construction of the equipment that will be used to determine the exact location of the wind farm is only now being assembled for placement. The precise location of the future wind farm in the waters off the coast of North Kingstown has not been determined yet and will be subject to the readings on wind speed and direction gathered by this preliminary piece of equipment.
This RI Zoning and Ocean Zoning project will set the precedence for how other coastal communities will determine size, location and other critical factors in the placement of their own wind farms. Estimated projections for the East Coast alone are in the 50,000 turbine range with the advance and initiation of this technology.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Monday, December 20, 2010
Personal Injury Claim Etiquette
Most people involved in an automobile accident would rather recover and get on with their lives, regardless of their injuries and time lost from work, or any lingering effect of those injuries. In some cases, this is perfectly acceptable, as long as the injury was minor, the damage to the vehicle wasn't severe, and any lost wages were recovered from your employer.
There are situations however, when filing a personal injury claim is not only fair and justified, but necessary in order to recover the losses that were incurred as a direct result of the other party's negligence.
In cases where there is third party negligence involved, it is always fair to file a personal injury claim. And remember the personal injury cases are not limited to car accidents. Common negligence claims can also include dog bites, boating and motorcycle accidents, slip and fall injuries, and injuries sustained while on the property of someone else, either an individual or corporation.
In Rhode Island, personal injury matters have a three year statute of limitations; meaning that you must file your claim within 3 years of the date of your accident or you will lose all right to file. Even if you were found to be partially at fault, you may have a claim, as RI is a comparative negligence state; which means that the amount of recovery is determined by percentage of fault.
If you have been involved in an accident, or have been the victim of third party negligence, contact our office for a consultation immediately.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
There are situations however, when filing a personal injury claim is not only fair and justified, but necessary in order to recover the losses that were incurred as a direct result of the other party's negligence.
In cases where there is third party negligence involved, it is always fair to file a personal injury claim. And remember the personal injury cases are not limited to car accidents. Common negligence claims can also include dog bites, boating and motorcycle accidents, slip and fall injuries, and injuries sustained while on the property of someone else, either an individual or corporation.
In Rhode Island, personal injury matters have a three year statute of limitations; meaning that you must file your claim within 3 years of the date of your accident or you will lose all right to file. Even if you were found to be partially at fault, you may have a claim, as RI is a comparative negligence state; which means that the amount of recovery is determined by percentage of fault.
If you have been involved in an accident, or have been the victim of third party negligence, contact our office for a consultation immediately.
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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
Friday, December 17, 2010
Filing Bankruptcy in RI Under the New Laws
If you find yourself in the unfortunate position of having to file bankruptcy in RI, you will need the assistance of a qualified bankruptcy attorney as the laws have changed substantially.
The new bankruptcy laws are stricter, making it more difficult for some people to file. In particular, those individuals who may fall into a higher income bracket will not be able to file a Chapter 7 Bankruptcy, and instead will have to file a Chapter 13; which will require them to work out a repayment plan with the court for at least some of their debt.
Debtors who pass the 'median income' rule; which determines if your income falls within the median guidelines for your state of residence, as well as 'the means test'; which will show whether you will have enough income, after specific permitted expenses, to pay toward a Chapter 13 plan.
If you fail the means test, you will be allowed to file a Chapter 7 petition in most cases, however, contact your bankruptcy attorney with any questions you have regarding this determination process before taking any action.
Under the new plans all debtors are required to complete credit counseling before they will be permitted to file their case, and again after the case is heard, before they will obtain a discharge. The counseling service is approved for referral to you by the United States Trustee's office, and will help you decide if bankruptcy is in fact the only way for you to proceed with your situation, or if you have other avenues of repayment open for consideration.
Although, debtors are not required to accept any repayment plans offered by the counseling agency, whether a proposed repayment plan is acceptable or not, all debtors are required to complete counseling. You will need the certificate provided at the end of the counseling to begin the process and file your bankruptcy petition.
Some factors for consideration and not necessarily pertaining to the new laws per se, are that bankrupcty attorneys may now be more difficult to locate and more expensive to hire as the work involved in the filing of the petitions has increased substantially from what was previously required under the old laws.
In addition, a lawyer representing you in bankruptcy is now personally responsible for the validity of the information that you provide on the documents that are filed with the court. Meaning that, if you are dishonest or fail to disclose certain aspects of your financial situation to your lawyer, whether they ask you or not, they will be responsible and risk losing their license to file bankruptcy petitions with the court.
Real property is now calculated at replacement cost rather than auction value, placing debtors in danger of having their property sold to pay debts.
If you have exhausted your available financial means attempting to pay down your debt and are now in a dire situation, contact a RI bankruptcy attorney now for more information.
-------------------------------------------------------------------Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
The new bankruptcy laws are stricter, making it more difficult for some people to file. In particular, those individuals who may fall into a higher income bracket will not be able to file a Chapter 7 Bankruptcy, and instead will have to file a Chapter 13; which will require them to work out a repayment plan with the court for at least some of their debt.
Debtors who pass the 'median income' rule; which determines if your income falls within the median guidelines for your state of residence, as well as 'the means test'; which will show whether you will have enough income, after specific permitted expenses, to pay toward a Chapter 13 plan.
If you fail the means test, you will be allowed to file a Chapter 7 petition in most cases, however, contact your bankruptcy attorney with any questions you have regarding this determination process before taking any action.
Under the new plans all debtors are required to complete credit counseling before they will be permitted to file their case, and again after the case is heard, before they will obtain a discharge. The counseling service is approved for referral to you by the United States Trustee's office, and will help you decide if bankruptcy is in fact the only way for you to proceed with your situation, or if you have other avenues of repayment open for consideration.
Although, debtors are not required to accept any repayment plans offered by the counseling agency, whether a proposed repayment plan is acceptable or not, all debtors are required to complete counseling. You will need the certificate provided at the end of the counseling to begin the process and file your bankruptcy petition.
Some factors for consideration and not necessarily pertaining to the new laws per se, are that bankrupcty attorneys may now be more difficult to locate and more expensive to hire as the work involved in the filing of the petitions has increased substantially from what was previously required under the old laws.
In addition, a lawyer representing you in bankruptcy is now personally responsible for the validity of the information that you provide on the documents that are filed with the court. Meaning that, if you are dishonest or fail to disclose certain aspects of your financial situation to your lawyer, whether they ask you or not, they will be responsible and risk losing their license to file bankruptcy petitions with the court.
Real property is now calculated at replacement cost rather than auction value, placing debtors in danger of having their property sold to pay debts.
If you have exhausted your available financial means attempting to pay down your debt and are now in a dire situation, contact a RI bankruptcy attorney now for more information.
-------------------------------------------------------------------Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.
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