A state cannot place a burden on a lawful taxing power of the United states, nor can it place a burden upon the person paying a tax to the United States solely because of such payment and without reference to the doing by such person of any act within the state and subject to its regulating authority.
A state cannot so exert its police power as to directly hamper or destroy a lawful authority of the United States.
A state statute requiring the holder of a federal liquor license to perform duties in conflict with the requirement of the federal statute is an exercise of power repugnant to the Constitution, and cannot be enforced, and so held as to c. 189, General Laws of North Dakota, 1907, requiring the holder of such a license to file and publish a copy thereof.
Quaere whether the payment to the United States of the special liquor tax and taking a receipt therefor creates a prima facie presumption that the person holding the receipt is engaged in the liquor business.
The facts, which involve the constitutionality of a statute of North Dakota, are stated in the opinion.
to register with the collector of the district "his name or style, place of residence, trade or business, and the place where such trade or business is to be carried on." In addition, Rev.Stat. § 3239, as amended by the Act of February 27, 1877, c. 69, 19 Stat. 240, requires every person engaging in any business made liable to a special tax, except tobacco peddlers, to place and keep conspicuously in his establishment or place of business all stamps denoting the payment of said special tax, and penalties are affixed for noncompliance. So also anyone carrying on a business made liable to a special tax without payment of the tax is subject to fine and imprisonment under § 16 of the act of 1875.
By other sections of the Revised Statutes, it is provided as follows.
"SEC. 3240. Each collector of internal revenue shall, under regulations of the Commissioner of Internal Revenue, place and keep conspicuously in his office for public inspection an alphabetical list of the names of all persons who shall have paid special taxes within his district, and shall state thereon the time, place, and business for which such special taxes have been paid."
"SEC. 3243. The payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any state for carrying on the same within such state, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such state, or in places prohibited by municipal law; nor shall the payment of any such tax be held to prohibit any state from placing a duty or tax on the same trade or business, for state or other purposes."
States upon the business of selling distilled, malted, and fermented liquor. Briefly, the law provides as follows: a notice of the particulars contained in the receipt or license, and other details respecting the place where the tax receipt or license is posted, etc., is required to be made for three weeks in official newspapers, and the fees for publication are declared to be the same "as allowed by law for the publication of other legal notices." The holder of the receipt or license is also required to place and keep posted at all times, with the government tax receipts or license, an affidavit of the fact of publication and the obtaining of such license, etc., together with a copy of the notices or advertisements. A duly authenticated copy of the tax receipt or license is required to be filed with a named official, to whom a ten-dollar filing fee is to be paid, and such official is required to publish, in certain official newspapers, the first week in each month, a list of all such tax receipts or licenses filed during the previous month, such notice to be published one week in each newspaper.
Upon complaint made before a committing magistrate for the County of Grand Forks, State of North Dakota, R. E. Flaherty, by the name of R. C. Flarty, was held to answer upon a charge of neglecting to register and publish a government receipt for the payment of an internal revenue tax on the business of a retail dealer in malt liquors. Having been committed to the custody of the sheriff, Flaherty unsuccessfully made application for a writ of habeas corpus to a judge of the state district court. Afterwards, a similar application was made to the supreme court of the state, and the writ was granted by that court, but, upon hearing, the writ was quashed. 16 N.D. 347. This writ of error was thereupon prosecuted.
The detention complained of was asserted to be illegal upon the ground that the law upon which the prosecution was based was repugnant to the state and federal Constitutions. We, of course, have to deal solely with the claim of alleged repugnancy to the Constitution of the United States.
"The argument of petitioner's counsel, to the effect that the act applies only to those persons who have complied with the federal statute with reference to posting the receipts for the payment of such tax is, we think, unsound. While section 2 of the act, when given a literal construction, and without considering the other portions of the act, would appear to sustain petitioner's contention in this respect, we think it apparent that, when the whole act is construed together, the legislative intent that the same shall apply to all who have paid the federal tax is apparent, and such intent must be given effect."
"Such is not the scope nor intent of the act as we construe it, but, on the contrary, the obvious purpose sought to be accomplished by its enactment was to furnish knowledge to the public and all concerned of the fact that the persons who have paid such tax to the government are or may become engaged in the business of selling intoxicating liquors contrary to the laws of this state. Its purpose, in other words, was solely to furnish knowledge to aid in the enforcement of our statute against the unlawful traffic in intoxicating liquors."
"The legislature, in enacting this law, merely did what it had the unquestioned right to do under the police power of the state. Such power is very broad, and is limited only by the Constitution and laws of the United States and the Constitution of this state. That the legislature has the right, within the police power of the state, to provide that the possession of an internal revenue tax receipt for the payment of the government tax upon the occupation of retail dealer in fermented and distilled liquors shall constitute prima facie evidence that the possessor is violating or has violated the prohibition law of this state is too well settled to admit of serious doubt. 23 Cyc. 255, and cases cited. Yet such a law is no less free from the objection urged by petitioner's counsel than is the act in question. If such a law is constitutional, then why cannot the legislature also enact a law making it a public offense for any citizen of the state to procure such a receipt, and neglect or refuse to furnish a public record thereof, and to give the most complete publicity to the fact of its issuance? Such a law would certainly have a tendency to aid in the better enforcement of the law against such illegal traffic, and we are aware of no provision, either in the federal Constitution or statutes, or in the Constitution of the state, which directly or impliedly prohibits such legislation."
the Constitution of the United States, and to be but a lawful exercise of the police power of the state to regulate the traffic in liquor within the state.
The errors assigned insist that the statute, as thus construed, is repugnant to the Constitution of the United States, first because, under the guise of the exertion of the police power of the state, the law really imposes a burden directly upon the exertion by the government of the United States of its lawful power of taxation, and because, even if this be not the case, the conditions and requirements of the statute are so in conflict with the act of Congress concerning the payment of the tax and the issuance of the receipt as to amount to a direct burden upon the constitutional power of Congress to tax.
The propositions, which are in substance one and the same, we think are well founded. Under the construction placed upon the statute by the court below, we see no escape from the conclusion that it immediately and directly places a burden upon the lawful taxing power of the United States, or, what is equivalent thereto, places the burden upon the person who pays the United States tax, solely because of the payment of such tax, and wholly without reference to the doing by the person of any act within the state which is subject to the regulating authority of the state. That the attempted exertion of such a power is repugnant to the Constitution of the United States is so elementary as to require nothing but statement. We place in the margin, [Footnote 2] however, a few or the numerous cases in which the principle has been announced or recognized.
government of the United States is at the mercy of state legislation."
"Moreover, it scarcely seems necessary to look beyond the Constitution itself for a decisive reply to the question we are now considering. The eight section of the first article declares that"
"the Congress shall have power to lay and collect taxes, duties, imposts, and excises . . . , but all duties, imposts, and excises shall be uniform throughout the United States."
"The power to impose and collect the public burthens is here given in terms as absolute as the language affords. The provision exacting uniformity throughout the United States itself imports a system of assessment and collection under the exclusive control of the general government. And both the grant of the power and its limitation are wholly inconsistent with the proposition that the states can by legislation interfere with the assessment of federal taxes, or set up a limitation of time within which they must be collected."
Undoubtedly, as suggested by the court below, there are decisions of state courts holding that, in a proceeding to enforce a penalty or to punish for a violation of a state law as to the sale of liquor, the payment of the special United States tax and taking of a receipt therefor by the defendant may be offered in evidence, and creates a prima facie presumption that the person paying the tax and holding the receipt was engaged in the business of selling liquor. Without in anywise intimating an opinion as to the soundness of the decisions thus referred to, and assuming only for the purpose of the argument their correctness, we yet fail to see how in any respect they can be considered persuasive as to the compatibility of the statute here under consideration with the Constitution of the United States.
direct burden upon the taxing power of the government of the United States. In the cases relied upon it, was but held that certain state statutes regulating the sale within a state of patent rights or patented articles were valid because but a reasonable exertion of the police powers of the state over acts done in the state, and were hence not inconsistent with the legislation of Congress over the subject. But that, as we have stated, is not the character of the legislation here involved. Indeed, testing the provision of the law under consideration by the criterion of reasonableness which was applied in the cases relied upon, it becomes manifest that the act here in question is directly antagonistic to the legislation of Congress concerning the subject with which the state statute deals, since that statute adds onerous burdens and conditions in addition to those for which the act of Congress provides, and which burdens are therefore inconsistent with the paramount right of Congress to exert, within the limits of the Constitution, an untrammeled power of taxation.
THE CHIEF JUSTICE, MR. JUSTICE McKENNA, and MR. JUSTICE HOLMES dissent.
"An Act Providing for the Publication and Registration of Special Tax Receipts or Licenses from the government of the United States to Sell Distilled, Malt, and Fermented Liquors, Issued to Persons in North Dakota, the Payment and Collection of Registration Fees and Publication Fees, Regulating the Posting and Exhibiting of Such Tax Receipts of Licenses, Prescribing the Duties of Officials and Owners and Lessors of Property in Relation Thereto, Prescribing Penalties for Failure to Perform the Duties Prescribed, and Other Regulations Pertaining to the Sale of Intoxicating Liquors."
"Be it enacted by the Legislative Assembly of the North Dakota:"
"SEC. 1. Liquor License. Tax Receipt Must Be Registered. -- Every receipt, stamp, or license showing payment of the special tax levied under the laws of the United States upon the business of selling distilled, malt, or fermented liquor, issued to or held by any person, firm, or corporation in this state, shall be registered and published as in this act required."
"SEC. 2. Notice to Be Published. Contains What. -- Immediately upon posting or displaying the special tax receipt or license mentioned in said § 1 of this act, as required under government regulations, it shall be the duty of the person in whose name such tax receipt or license is issued to cause to be published for three successive weeks in the official newspaper of the county, and for the same period in the official newspaper of the city, within an incorporated city, a notice which shall contain the following information: name of person to whom the government tax receipt or license is issued; date of special tax receipt or license; description of property where said tax receipt or license is posted, and, if within an incorporated city, the number of the lot and block and street number, and setting forth specifically the room, building, or place where said tax receipt or license is posted; the name of the owner and the name of the lessor of the property in which said tax receipt or license is posted. Upon discontinuance of business or removal of the special tax receipt or license mentioned in section one of this act to another building or place, a similar notice containing the information prescribed in this section shall be published in the same manner prescribed herein, and setting forth further the fact of removal, giving date and description of place to which such removal is made as fully as in the original notice."
"SEC. 3. Copy of Receipt Filed with Auditor. -- It shall be the further duty of any person to whom a tax receipt or license from the government of the United States is issued, as mentioned in section one of this act, to file a duly authenticated copy of the same before or immediately upon posting, if in an incorporated city with the city auditor, otherwise with the county auditor of the county, and pay a fee for the filing thereof of ten dollars which fee shall be turned into the general fund of the city of county, as the case may be."
"SEC. 4. Auditor Published List of Licenses -- The city auditor, if in an incorporated city, or county auditor, if not within an incorporated city, shall be required to publish in the official newspaper of the city and each of the official newspapers of the county, the first week in each month, a list of all such tax receipts or licenses filed during the previous month, such notice to be published one week in each newspaper."
"SEC. 5. Fees for Publication. Copy Posted. -- The fee for publication of notices required under this act shall be the same as allowed by law for publication of other legal notices, and the publisher may require the fee for such publication to be paid in advance. Upon the expiration of the publication required by this act, the publisher or manager of the newspaper in which said notice is published shall make an affidavit of publication, with a copy of the advertisement attached thereto, together with the copy of notice or advertisement referred to herein, shall be posted and remain posted at all times with the tax receipt or license referred to in section one of this act."
"SEC. 6. Owner of Premises Must Publish, When. Penalty for Failure. -- In case the person to whom the tax receipt or license referred to in section one of this act shall be issued shall fail to cause to be published the notice required by this act, it shall be the duty of the owner or lessor of the premises whereon or wherein the tax receipt or license from the government of the United States referred to in section one of this act shall be posted, to cause such advertisement to be published as in this act required, and if such owner or lessor shall knowingly fail to do so, he shall be guilty of a misdemeanor."
"SEC. 7. Duty of officers. -- It shall be the duty of every sheriff, deputy sheriff, constable, mayor, marshal, police judge, and police officer of any city or town having knowledge of any violation of the provisions of this act to notify the state's attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions of this section, he shall be guilty of a misdemeanor, and, upon conviction, in addition to the punishment therefor prescribed by law, shall forfeit his office. For failure or neglect of official duty in the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action."
"SEC. 8. Duty of County Auditor. -- It shall be the duty of the county auditor of each county to apply to the internal revenue department of the government of the United States the first week in each month for a list of all special tax receipts or licenses mentioned in section one of this act, issued to persons within his county, naming the persons, date, and places, and the same shall be immediately published one week in each of the official newspapers of the county and city. The cost of procuring such information, upon filing of a duly verified voucher, shall be paid by the county as other county expenses are paid."
"SEC. 9. Penalty. -- Failure on the part of any person to comply with the provisions of this act shall constitute a misdemeanor."
"SEC. 10. Emergency. -- Whereas, it is desirable that the publicity required by this act shall begin as soon as possible, an emergency exists, and this act shall be in force from and after its passage and approval."
M'Culloch v. Maryland, 4 Wheat. 405, 17 U. S. 406, 17 U. S. 436; Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 210; Osborn v. Bank of United States, 9 Wheat. 738; Brown v. Maryland, 12 Wheat. 448, 25 U. S. 449; Willson v. Black Bird Creek Marsh Co., 2 Pet. 251; The License Cases, 5 How. 504, 523-524, 529 [argument of counsel -- omitted]; Sinnot v. Davenport, 22 How. 227, Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 157 U. S. 584; Davis v. Elmira Savings Bank, 161 U. S. 283; Missouri, K. &. T. R. Co. v. Haber, 169 U. S. 613, 169 U. S. 625-626; Owensboro National Bank v. Owensboro, 173 U. S. 667; Knowlton v. Moore, 178 U. S. 59; Plummer v. Coler, 178 U. S. 117; Reid v. Colorado, 187 U. S. 151.


The business of making small personal loans and purchasing conditional sales contracts from dealers in furniture and appliances does not constitute "sales of . . . services" by a "retail or service establishment," within the meaning of the exemption provided in § 13(a)(2) of the Fair Labor Standards Act, as amended in 1949. Pp. 359 U. S. 290-296.
Petitioner, the Secretary of Labor, brought suit to enjoin respondents from violating the overtime and recordkeeping provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq. Respondents, two closely affiliated subsidiaries of a common corporate parent, share an office in Louisville, Kentucky. They are engaged in the business of making personal loans, in amounts up to $300, to individuals, and in purchasing conditional sales contracts from dealers in furniture and appliances. Respondents share the services of a common manager and nine full-time and two part-time employees.
". . . any employee employed by any retail or service establishment, more than 50 percentum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A 'retail or service establishment' shall mean an establishment 75 percentum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; . . ."
As concededly more than 50 percent of respondents' loan and discount business is with Kentucky residents, and none of it involves "resale" transactions, the sole question involved in this litigation is whether respondents should be considered as "retail or service establishment[s]," engaged in the making of "sales of goods or services," within the meaning of § 13(a)(2). The burden is, of course, upon respondents to establish that they are entitled to the benefit of the § 13 exemption, since coverage apart from the exemption is admitted.
After trial, the District Court found that respondents had not proved that they are a "retail or service establishment" within the meaning of § 13(a)(2), and issued an injunction restraining respondents from further violating the Act. 150 F.Supp. 368. The Court of Appeals reversed. 254 F.2d 8. We granted certiorari, 358 U.S. 811, to resolve the conflict between the decision of the court below and that of the Court of Appeals for the First Circuit in Aetna Finance Co. v. Mitchell, 247 F.2d 190.
"Any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce."
The Administrator early ruled that personal loan companies and other business entities in what may broadly be called the "financial industry" were not within the scope of that exemption. [Footnote 1] When Congress amended the Act in 1949, it provided that pre-1949 rulings and interpretations by the Administrator should remain in effect unless inconsistent with the statute as amended. 63 Stat. 920, § 16(c). The narrow issue before us, then, is whether Congress, in the 1949 amendment of § 13(a)(2), broadened the scope of that section so as to embrace personal loan companies.
"75 percentum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; . . ."
Respondents argue that they plainly come within this definition because (1) more than 75 percent of their loan and discount business is "not for resale," and (2) their activities are recognized in the financial industry as being the "retail end" of that industry. They claim that the intent of Congress in the 1949 amendment was to provide that "local" business was exempt from the overtime requirements of the statute, and that their activities are precisely the kind the § 13 exemption was designed to embrace.
This is not a case where perforce we must attempt to resolve a controversy as to the true meaning of equivocal statutory language unaided by any reliable extrinsic guide to legislative intention. On the contrary, the debates and reports in Congress with reference to this section of the statute are detailed and explicit. To those legislative materials we now turn.
The legislative history of the 1949 amendment to § 13(a)(2) demonstrates beyond doubt that Congress was acting in implementation of a specific and particularized purpose. Before 1949, the Administrator, in interpreting the term "retail or service establishment," then nowhere defined in the statute, had, in addition to excluding from the coverage of the exemption personal loan companies and other financial institutions, ruled that a business enterprise generally would not qualify as such an establishment unless 75 percent of its receipts were derived from the sale of goods or services "to private persons to satisfy their personal wants," on the theory that sales for business use were "nonretail." [Footnote 3] This administratively announced "business use" test was generally approved by this Court in Roland Electrical Co. v. Walling, 326 U. S. 657.
in the financial field, none of which had previously been considered to qualify for the exemption regardless of the class of persons with which they dealt, and regardless of whether they were thought of in the financial industry as engaged in "retail financing," remained unaffected by the amendment of § 13(a)(2).
"The amendment does not exempt banks, insurance companies, building and loan associations, credit companies, newspapers, telephone companies, gas and electric utility companies, telegraph companies, etc., because there is no concept of retail selling or servicing in these industries. Where it was intended that such businesses have an exemption one was specifically provided by the law. . . . [Footnote 6]"
Powell v. United States Cartridge Co., 339 U. S. 497, 339 U. S. 517. In the light of the abundant pointed evidence that Congress did not intend that businesses like those of respondents be exempted from the overtime and recordkeeping provisions of the statute by § 13(a)(2), we would not be justified in straining to bring respondents' activities within the literal words of the exemption.
Interpretative Bull. No. 6, 1942 WH Manual 326, 29-31. That ruling has been carried over under the amended version of § 13(a)(2). 29 CFR, 1958 Supp., § 779.10.
The term "service" is nowhere defined in the Fair Labor Standards Act.
See Interpretative Bull. No. 6, 1942 WH Manual 326, 14, 18.
The Administrator supported the so-called Lesinski bill, which would have adopted the Administrator's "business use" test in the definition of "retail or service establishment."
"[§ 13(a)(2)] . . . clarifies the existing exemption by defining the term 'retail or service establishment' and stating the conditions under which the exemption shall apply. This clarification is needed in order to obviate the sweeping ruling of the Administrator and the courts that no sale of goods or services for business use is retail. See Roland Electrical Co. v. Walling, [326 U.S. 657]; . . ."
"The only substantial difference between the Administrator and his recommendation [which would have written the 'business use' test into the statute] and the amendment which we propose is that we propose to do way with this artificial distinction between a retail sale, on the one hand, and a business sale, on the other. . . ."
95 Cong.Rec. 12498. For other authoritative expressions of the legislative intent in this regard, see 95 Cong.Rec. 11115-11116, 12492-12493, 12496, 12502, 12506, 12508.
H.R.Conf.Rep., 95 Cong.Rec. 14932. See also Report of Majority of Senate Conferees, 95 Cong.Rec. 14877; statement of Senator Holland, 95 Cong.Rec. 12505-12506.
Respondents urge that statements of this kind have no application to them, because they are not "credit companies," in that such term properly is to be restricted to commercial credit companies. We agree with the observation of the Court of Appeals in Aetna Finance Co. v. Mitchell, supra, 247 F.2d at 193, that this contention is "quite unconvincing." There is nothing which indicates that Congress was using the term "credit companies" in any specialized sense, and indeed one of respondents' own expert witnesses testified that personal loan companies are "credit institutions." We think it clear that the House and Senate Conferees used "credit companies" to mean nothing more nor less than companies which deal in credit, as respondents concededly do.


Opinion Judge: GRATTON, CHIEF JUDGE.
Attorney: Randall S. Barnum, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Madison N. Miles, Deputy Attorney General, Boise, for respondent.
Judge Panel: Judge HUSKEY and Judge BRAILSFORD CONCUR.
In the Matter of: Jane Doe I and Jane Doe II, Children Under Eighteen (18) Years of Age.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Andrew Ellis, District Judge.
Judgment terminating parental rights, affirmed.
Randall S. Barnum, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Madison N. Miles, Deputy Attorney General, Boise, for respondent.
Jane Doe appeals from the judgment terminating her parental rights to her two minor children. Doe argues that the magistrate erred in terminating her parental rights because (1) the Idaho Department of Health and Welfare (Department) did not make reasonable efforts to reunite her with the children, (2) the Department did not provide sufficient grounds for termination, and (3) the Department did not establish, by clear and convincing evidence, that termination was in the best interests of the children.
Doe and John Doe are the biological parents of two children, L.B. born in 2016 and Z.B. born in 2018. In June 2017, the magistrate awarded legal custody of L.B. to the Department after police executed a search warrant on the Doe's residence and declared L.B. in imminent danger. The police served the warrant to investigate allegations that John Doe had victimized his oldest daughter, A.B. At the time of the search, Doe and John Doe were married and living together, with L.B., in a converted one-car garage. The residence did not have a toilet or running water. Fifteen animals were living in the residence and police found a large quantity of marijuana. There was an overwhelming smell of stale marijuana and animal urine. Officers observed that L.B. smelled like urine, was underweight, and had matted hair. Doe admitted that the couple had been selling marijuana from the residence for over a year, often in the presence of L.B. In addition, Doe admitted that she and John Doe used the drug on a daily basis.
As a result of the search, both parents were convicted of possession of a controlled substance with the intent to deliver and felony injury to child. Additionally, John Doe was convicted of felony sexual exploitation of a child for possessing pornographic photos of A.B. Doe was placed on felony probation for ten years. Later, Doe pled guilty to failure to report for aiding John Doe by deleting five pornographic photographs from John Doe's phone that depicted A.B. In August 2017, the court approved case plans for both parents. In May of 2018, Z.B. was born. At the time of Z.B.'s birth, John Doe was incarcerated for the above offenses. A month after birth, Z.B. was placed in foster care. The Department was awarded legal custody, and the court approved additional case plans for both parents.
In October 2018, the Department filed an amended petition for termination of parental rights. At John Doe's direction, a default judgment was entered against him. Following trial, the magistrate terminated Doe's parental rights after finding clear and convincing evidence that Doe had neglected the children, had an inability to discharge her parental responsibilities for a prolonged period, and termination was in the best interests of the children. Doe timely appeals.
A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that, wherever possible, family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652.
On appeal from a decision terminating parental rights, this Court examines whether the decision is supported by substantial and competent evidence, which means such evidence as a reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243, 245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences in support of the trial court's judgment when reviewing an order that parental rights be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater quantum of evidence in cases where the trial court's finding must be supported by clear and convincing evidence than in cases where a mere preponderance is required. Doe v. Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood to be evidence indicating that the thing to be proved is highly probable or reasonably certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate's decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600.


text:
For more than three decades, Charles M. Auer, Senior Regulatory and Policy Advisor with Bergeson & Campbell, P.C. (B&C®), has provided sagacious, informed, and deeply insightful guidance on legal, policy, and scientific matters related to the regulation of chemicals under the Toxic Substances Control Act (TSCA) and related domestic and international chemical control laws. Mr. Auer’s experience includes over 32 years at the U.S. Environmental Protection Agency (EPA), most recently as the Director of the Office of Pollution Prevention and Toxics (OPPT), responsible for implementation of TSCA. He offers clients a truly exceptional level of policy and technical expertise in domestic and international chemical regulation, including chemical testing, assessment, and management of new and existing chemicals under TSCA; strategies for compliance with major U.S. trading partners and under multilateral environmental agreements such as the Stockholm Convention; approaches such as green chemistry, pollution prevention, Safer Choice, and other safer substitutes to meet corporate product stewardship goals; and commercialization of products from emerging chemical technologies, including nanotechnology, synthetic biology, and intergeneric microorganisms.
Few people on the planet have managed or been as intimately involved in the application and interpretation of as many chemical regulatory requirements and policies as Mr. Auer; fewer still have delved so deeply into the workability, implementation, and strategic issues facing “new” TSCA as a result of the sweeping changes made to TSCA under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Mr. Auer’s inherent understanding of how EPA operates and his prodigious analysis of the new law allows him to counsel clients on strategies and approaches to prepare for implementation of new TSCA, and to help clients maintain compliance and seize commercial opportunities revealed by each new precedent-setting chemical review, determination, and rulemaking from EPA.
During his career at EPA, Mr. Auer held a number of technical and management positions and was a member of the Senior Executive Service with responsibility for managing, leading, and resourcing scientific and policy-related organizations ranging in staff size from 50 to 350. He was a member of U.S. negotiating teams that produced strong and successful outcomes in development of the Rotterdam Convention on Prior Informed Consent (1998), Stockholm Convention on Persistent Organic Pollutants (1999-2001), Dubai Declaration on the Strategic Approach to International Chemicals Management (2005-2006), and United Nations Environment Program (UNEP) Mercury Program (2005-2007). After leaving EPA, he was principal at Charles Auer & Associates, a regulatory consulting firm he founded and for which he assisted a number of clients, including companies and trade associations.
Lynn L. Bergeson, Charles M. Auer, Co-Editors, New TSCA: A Guide to the Lautenberg Chemical Safety Act and Its Implementation, American Bar Association Section of Environment, Energy, and Resources (2017).
Lynn L. Bergeson, James V. Aidala, Jr., Charles M. Auer, Richard Engler, and Oscar Hernandez, "Practitioner Insights: Enhancing TSCA Reform Implementation," Bloomberg BNA Daily Environment Report, August 2, 2017.
Lynn L. Bergeson, Charles M. Auer, and Carla Hutton, "Practitioner Insights: A Review and Analysis of TSCA Reform Provisions Pertinent to Manufacturers and Processors of Nanoscale Materials," BNA Daily Environment Report, January 26, 2017.
Charles M. Auer, Lynn L. Bergeson, “Role of ‘Conditions of Use’ Under Sections 5 and 6 of Amended Toxics Law,” BNA Daily Environment Report, October 14, 2016.
Charles M. Auer, Lynn L. Bergeson, “Is The Section 5 Review Period Fixed Or Flexible In New TSCA?,” ABA Section of Environment, Energy, and Resources PCRRTK Newsletter, September 2016.
Charles M. Auer, “Old TSCA, New TSCA, and Chemical Testing,” BNA Daily Environment Report, August 16, 2016.
Lynn L. Bergeson, Charles M. Auer, “An Analysis of TSCA Reform Provisions Pertinent to Industrial Biotechnology Stakeholders,” Industrial Biotechnology, Volume 12, Issue 4, August 2016.
Kathleen M. Roberts, Richard E. Engler, Ph.D., Charles M. Auer, Lynn L. Bergeson, “An Analysis of Section 8 of the New Toxic Substances Control Act,” BNA Daily Environment Report, August 9, 2016.
Charles M. Auer, Frank D. Kover, James V. Aidala, Mark Greenwood, "Toxic Substances: A Half Century of Progress," in Protecting the Environment: A Half Century of Progress, EPA Alumni Association, March 1, 2016.
Charles M. Auer, James V. Aidala, Lynn L. Bergeson, "TSCA Reform Legislation and Its Workability: Thoughts on Steps to Help Ensure Successful Implementation at the Outset and Over Time," BNA Daily Environment Report, July 23, 2015.
Steven P. Bradbury, Christine L. Russom, Patricia K. Schmieder,Terry W. Schultz, Robert Diderich, and Charles M. Auer, “Advancing Computational Toxicology in a Regulatory Setting: A Selected Review of the Accomplishments of Gilman D. Veith (1944–2013),” Appl. In Vitro Toxicology. 1(1), 2015, 16-25.
Lynn L. Bergeson, Charles M. Auer, Oscar Hernandez, “Creative Adaptation: Enhancing Oversight of Synthetic Biology Under the Toxic Substances Control Act,” Industrial Biotechnology, Volume 10, Issue 5, 2014.
Lynn L. Bergeson, Charles M. Auer, and R. David Peveler, "TSCA and the Regulation of Renewable Chemicals," American Oil Chemists Inform, July/August, 2013.
"Top EPA Toxics Officials Under Obama & Bush Admins Hail Lautenberg-Vitter Bill to Reform Nation's Chemical Laws," Press release issued by U.S. Senate Committee on Environment and Public Works, May 23, 2013.
Lisa R. Burchi, Charles M. Auer, Kathleen M. Roberts, and Lynn L. Bergeson, "Are TSCA Section 8(b)(2) Statutory Mixture Categories Subject to Reporting Under the Chemical Data Reporting Rule?," BNA Toxics Law Reporter, April 12, 2012.
Lynn L. Bergeson, James V. Aidala, and Charles M. Auer, "2012 Predictions for TSCA Reform and EPA Initiatives," Law360, January 19, 2012.
Lisa R. Burchi, Charles M. Auer, and Lynn L. Bergeson, "EPA’s SNUR Authority and Key Points Regarding SNURs for Former New Chemicals," BNA Daily Environment Report, September 12, 2011.
Lynn L. Bergeson, James V. Aidala, and Charles M. Auer, "The nuances of 'nano' in pesticide products," Law360, July 1, 2011.
Lynn L. Bergeson, James V. Aidala, and Charles M. Auer, "Principles for regulating nanotech," Law360, June 15, 2011.
Lynn L. Bergeson and Charles M. Auer, "Nano Disclosures: Too small to matter or too big to ignore?" Natural Resources & Environment, Winter 2011.
Charles Auer, Testimony on H.R. 5820 - the Toxic Chemicals Safety Act of 2010), before the House Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection, August 3, 2010.
James V. Aidala, Jr., Charles M. Auer, Lynn R. Goldman, M.D., and James B. Gulliford, "Practical Advice for TSCA Reform: An Insider Perspective," The American Bar Association Section of Environment, Energy, and Resources Special Committee on TSCA Reform, August 2010.
Bergeson, Lynn L. ,Charles M. Auer, and James V. Aidala, “Summary and comparison of the TSCA reform legislation,” Pesticides, Chemical Regulation, and Right-to-Know Committee Newsletter, Volume 11, No. 3, June 2010.
Auer, Charles M., Lynn L. Bergeson, and Lisa R. Burchi, “TSCA Section 5(b)(4) ‘Chemicals of Concern’ List: Questions, Issues, Concerns,” BNA Daily Environment Report, May 24, 2010.
Auer, Charles M., “Periodic reporting of hazard data, exposure information on exiting chemicals,” BNA Chemical Regulation Reporter (70 DEN B-1), April 19, 2010, 384-393.
Auer, Charles M., Lynn L. Bergeson, and James V. Aidala, "EPA's Action Plans Signal a New Chapter for TSCA While Informing the Future Legislative Debate on Chemicals," Environmental Law Reporter (40), March 2010.
Auer, Charles M., Blake A. Biles, and Larry Culleen, “Fundamental changes could be in store for regulation of commercial chemicals,” BNA Chemical Regulation Reporter (195 DEN B-1), Oct 12, 2009.
“WEBINAR -- Chemical Regulation in 2018: A Sneak Preview of Things to Come,” Bloomberg BNA and Bergeson & Campbell, P.C., (February 8, 2018).
“Regulatory & Policy Issues,” TSCA Reform: One Year Later Conference, Washington D.C. (June 27, 2017).
“WEBINAR -- Reviewing New Chemicals Under Amended TSCA: Impact on Innovation,” Bloomberg BNA (June 12, 2017).
“The Basics – What The New Law Does,” Chemical Watch US Regulatory Summit, Arlington, Virginia (October 27, 2016).
“WEBINAR - The New TSCA Webinar 4: Preemption, PBTs, Fees, and Judicial Review,” Chemical Watch (October 4, 2016).
"Title 1 of TSCA: Understanding Its History and Reviewing Its Impact," Testimony before the House Energy and Commerce Subcommittee on Environment and the Economy, Washington, D.C. (June 13, 2013).

matches: V. V. V. V. V. V. V. V. V.


text:
A graduate of Rhodes College and Suffolk Law School, Brendan has been with Lambert Shortell & Connaughton since 2007. Brendan concentrates his practice on trademark and copyright preparation, prosecution, licensing and litigation matters. Brendan has prosecuted, registered, and maintains over six hundred (600) U.S. trademarks for clients. Additionally, Brendan has obtained, in conjunction with foreign associates, trademark registrations outside the United States, including in: African Intellectual Property Organization, Australia, Austria, Benelux (Belgium/Netherlands/Luxembourg), Brazil, Canada, Chile, China, Columbia, Czech Republic, Denmark, European Community, France, Germany, India, Japan, Malaysia, Mexico, Netherlands, New Zealand, South Africa, Singapore, Spain, Switzerland, and the United Kingdom.
Brendan has been lead or assistant counsel in numerous patent, copyright, trademark, and false advertising cases in Federal Courts throughout the country, including the the United States Court of Appeals for the Federal Circuit, and a precedent setting case on preliminary injunctive relief at the United States Court of Appeals for the First Circuit. Brendan also has extensive experience representing clients in opposition and cancellation proceedings at the Trademark and Trial Appeal Board.
Outside of the office Mr. Shortell Brendan is involved in a number of animal related charities and enjoys playing golf, travelling, and spending time with his wife and two sons.
EMSEAL Joint Systems, Ltd v. MM Systems Corporation (Fed. Cir. 2018) representing Appellee MM Systems in an appeal to a finding of patent non-infringement in favor of MM Systems.
The Helping Hand Company (Ledbury) Limited v. Vive Health, LLC (D. Mass. 2018) representing The Helping Hand in a patent infringement lawsuit.
D’Pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc. (D. NH. 2017) representing D’Pergo in a copyright and trademark infringement lawsuit.
The Green Pet Shop Enterprises, LLC v. Petedge, Inc. (D. Mass. 2017) representing The Green Pet Shop in a patent infringement lawsuit.
Rawshon, Inc. v. Richdale Dairy Stores, LLC (D. Mass. 2017) representing Rawshon, Inc. in a trademark infringement lawsuit.
Baystate Consulting, LLC v. Saasant Infotech Private Limited (D. Mass. 2017) representing Baystate Consulting, LLC in a trademark and copyright infringement lawsuit.
The E.B. Horn Company v. Horn’s Jewelers, Inc. (D. Mass. 2016) represented The E.B. Horn Company in a trademark infringement lawsuit.
Keurig Green Mountain, Inc. v. Touch Coffee & Beverages, LLC (D. Mass. 2016) representing Touch Coffee & Beverages, LLC in a patent infringement lawsuit.
EMSEAL Joint Systems, Ltd v. MM Systems Corporation (D. Mass. 2014) representing MM Systems in a patent infringement lawsuit.
Emseal Joint Systems, Ltd. v. Schul International Co., LLC, Willseal, LLC, et al. (D. N.H. 2014) representing Schul, Willseal, and all other listed Defendants in a patent infringement lawsuit.
John Keeler & Co, Inc. v. Heron Point Seafood (N.D. of Ohio 2014) representing Heron Point in a patent infringement lawsuit.
Voice of the Arab World, Inc. v. MDTV Medical News Now, Inc. (1st Cir. 2011) represented MDTV Medical News Now, Inc. in a trademark infringement lawsuit. This is now a preeminent case regarding preliminary injunctive relief.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


A legacy paid over by the executor to the legatee, or to himself as trustee under the will for an ascertained beneficiary, is vested in possession within the meaning of the tax refunding Act of June 27, 1902, c. 11, § 3, 32 Stat. 406, although the payments are made before expiration of the time for proving claims against the estate.
Claims to be barred by the Statute of Limitations. In view of the decision in Sage v. United States, 250 U. S. 33, it is admitted by the government that the judgment cannot be sustained on that ground, and therefore that matter need not be discussed, but it is contended that the judgment was right because the legacies taxed had become vested before July 1, 1902. Whether they had become vested within the meaning of the refunding act is the only question in the case.
The facts are these: Arthur Hendricks died domiciled in New York on March 5, 1902, and his will was proved on March 17, 1902. The claimant was executor and trustee under the will. By that instrument, the sum of $50,000 was left to the claimant in trust for Florence Lester for life, the remainder to go to the residue. The residue was left to the testator's five sisters. On July 1, 1902, the time for proving claims against the estate had not expired, but before that date the executor, having correctly estimated that a large sum would be left after all debts, paid over $135,780 to the five sisters in equal shares and "established the trust fund" for Florence Lester -- that is, as we understand the finding, transferred the sum of $50,000 to his separate account as trustee. The taxes in question were levied on these two amounts.
There is no doubt that, if the claimant had retained the funds in his hands, as he had a legal right to do, the interest of the legatees would not have been vested in possession within the meaning of the statute, whatever the probabilities and however solvent the estate. United States v. Jones, 236 U. S. 106; McCoach v. Pratt, 236 U. S. 562. He contends that the same is true if he saw fit to pay over legacies before the time came when they could be demanded as of right. We will assume that, if the estate had proved insufficient, the executor not only would have been responsible, but could have recovered such portion of his payments as was needed to pay debts.
Still, the consequence asserted does not follow. There can be no question that the interest of the sisters was held in possession, and so was that of the trustee, although he happened to be the same person as the executor. The interest was vested also in each case. The law uses familiar legal expressions in their familiar legal sense, and the distinction between a contingent interest and a vested interest subject to be divested is familiar to the law. Gray, Rule Against Perpetuities § 108. The remote possibility that the funds in the hands of the legatees might have to be returned no more prevented their being vested in possession and taxable than the possibility that a life estate might end at any moment prevented one that began before July 1, 1902, being taxed at its full value as fixed by the mortuary tables. United States v. Fidelity Trust Co., 222 U. S. 158, 222 U. S. 160. In that case, it was contended that the life estate was contingent so far as not actually enjoyed.
It is argued with regard to the trust for Florence Lester that the case stands differently because the life tenant received no income from it before July 1, 1902. But, for the purposes of this act, the interest in a fund transferred from an estate to a trustee for ascertained persons is vested in possession no less than when it is conveyed directly to them. See United States v. Fidelity Trust Co., supra.


Austin Instrument, Inc. v. Loral Corp., 272 N.E.2d 533 (1971).
LexRoll.com > Law Dictionary > Contracts Law > Austin Instrument, Inc. v. Loral Corp.
Citation: 29 N.Y.2d 124 (1971).
One-Sentence Takeaway: A contract is voidable on the grounds of duress by the party who was forced to agree to it by means of a wrongful threat precluding the exercise of his free will.
Summary: Loral Corp. (“Defendant”) was awarded a lucrative contract by the Navy to provide certain radar systems. The radar systems required 40 precision gear components and Defendant subcontracted the production of 23 of those components to Austin Instrument, Inc. (“Plaintiff”).
Later, the Navy awarded Defendant another contract for radars that again required 40 precision gear components. Plaintiff informed Defendant that this time Plaintiff should be awarded the subcontract for all of the 40 components required under the second contract and, in addition, the price under the second subcontract and the remaining components under the first subcontract will be higher or Plaintiff will not deliver the components remaining under the first subcontract.
Defendant looked around for other manufacturers who could supply the components that remained due from Plaintiff under the first subcontract, but was unable to find any and acquiesced to Plaintiff’s demands.
After delivery of all of the components under the first and second subcontracts, Defendant stopped paying and Plaintiff sued for the $17,750 that remained outstanding. Defendant also sued Plaintiff to recover the $22,250 in increased price that Plaintiff had charged, and Defendant had paid, for the components. The two cases were consolidated.
The trial court ruled in favor of Plaintiff and dismissed Defendant’s complaint. Defendant appealed.
The court held that Defendant had met the foregoing requirements. After Plaintiff threatened to stop production under the first subcontract, Defendant looked around but was not able to find another manufacturer. Thus, Defendant was facing the threat of losing its contracts with the Navy if it did not succumb to Plaintiff’s demands.
Austin Instrument, Inc., Respondent, v. Loral Corporation, Appellant.
Chief Judge FULD.The defendant, Loral Corporation, seeks to recover payment for goods delivered under a contract which it had with plaintiff Austin Instrument, Inc., on the ground that the evidence establishes, as a matter of law, that it was forced to agree to an increase in price on the items in question under circumstances amounting to economic duress.
In July of 1965, Loral was awarded a $6,000,000 contract by the Navy for the production of radar sets. The contract contained a schedule of deliveries, a liquidated damages clause applying to late deliveries and a cancellation clause in case of default by Loral. The latter thereupon solicited bids for some [pg. 129] 40 precision gear components needed to produce the radar sets, and awarded Austin a subcontract to supply 23 such parts. That party commenced delivery in early 1966.
Loral thereupon consented to the price increases insisted upon by Austin under the first subcontract and the latter was awarded a second subcontract making it the supplier of all 40 gear parts for Loral’s second contract with the Navy.2Although Austin was granted until September to resume deliveries, Loral did, in fact, receive parts in August and was able to produce the radar sets in time to meet its commitments to the Navy on both contracts. After Austin’s last delivery under the second subcontract [pg. 130] in July, 1967, Loral notified it of its intention to seek recovery of the price increases.
It is manifest that Austin’s threat — to stop deliveries unless the prices were increased — deprived Loral of its free will. As bearing on this, Loral’s relationship with the Government is most significant. As mentioned above, its contract called for staggered monthly deliveries of the radar sets, with clauses calling for liquidated damages and possible cancellation on default. Because of its production schedule, Loral was, in July, 1966, concerned with meeting its delivery requirements in September, October and November, and it was for the sets to be delivered in those months that the withheld gears were needed. Loral had to plan ahead, and the substantial liquidated damages for which it would be liable, plus the threat of default, were genuine possibilities. Moreover, Loral did a substantial portion of its business with the Government, and it feared that a failure to deliver as agreed upon would jeopardize its chances for future contracts. These genuine concerns do not merit the label “`self-imposed, undisclosed and subjective'” which the Appellate Division majority placed upon them. It was perfectly reasonable for Loral, or any other party similarly placed, to consider itself in an emergency, duress situation. [pg. 132] Austin, however, claims that the fact that Loral extended its time to resume deliveries until September negates its alleged dire need for the parts. A Loral official testified on this point that Austin’s president told him he could deliver some parts in August and that the extension of deliveries was a formality. In any event, the parts necessary for production of the radar sets to be delivered in September were delivered to Loral on September 1, and the parts needed for the October schedule were delivered in late August and early September. Even so, Loral had to “work * * * around the clock” to meet its commitments. Considering that the best offer Loral received from the other vendors it contacted was commencement of delivery sometime in October, which, as the record shows, would have made it late in its deliveries to the Navy in both September and October, Loral’s claim that it had no choice but to accede to Austin’s demands is conclusively demonstrated.
We find unconvincing Austin’s contention that Loral, in order to meet its burden, should have contacted the Government and asked for an extension of its delivery dates so as to enable it to purchase the parts from another vendor. Aside from the consideration that Loral was anxious to perform well in the Government’s eyes, it could not be sure when it would obtain enough parts from a substitute vendor to meet its commitments. The only promise which it received from the companies it contacted was for commencement of deliveries, not full supply, and, with vendor delay common in this field, it would have been nearly impossible to know the length of the extension it should request. It must be remembered that Loral was producing a needed item of military hardware. Moreover, there is authority for Loral’s position that nonperformance by a subcontractor is not an excuse for default in the main contract. (See, e.g., McBride & Wachtel, Government Contracts, § 35.10, .) In light of all this, Loral’s claim should not be held insufficiently supported because it did not request an extension from the Government.
Loral, as indicated above, also had the burden of demonstrating that it could not obtain the parts elsewhere within a reasonable time, and there can be no doubt that it met this burden. The 10 manufacturers whom Loral contacted comprised its entire list of “approved vendors” for precision gears, and none was [pg. 133] able to commence delivery soon enough.6 As Loral was producing a highly sophisticated item of military machinery requiring parts made to the strictest engineering standards, it would be unreasonable to hold that Loral should have gone to other vendors, with whom it was either unfamiliar or dissatisfied, to procure the needed parts. As Justice STEUER noted in his dissent, Loral “contacted all the manufacturers whom it believed capable of making these parts” (35 A D 2d, at p. 393), and this was all the law requires.
It is hardly necessary to add that Loral’s normal legal remedy of accepting Austin’s breach of the contract and then suing for damages would have been inadequate under the circumstances, as Loral would still have had to obtain the gears elsewhere with all the concomitant consequences mentioned above. In other words, Loral actually had no choice, when the prices were raised by Austin, except to take the gears at the “coerced” prices and then sue to get the excess back.
Austin’s final argument is that Loral, even if it did enter into the contract under duress, lost any rights it had to a refund of money by waiting until July, 1967, long after the termination date of the contract, to disaffirm it. It is true that one who would recover moneys allegedly paid under duress must act promptly to make his claim known. (See Oregon Pacific R. R. Co. v. Forrest, 128 N.Y. 83, 93; Port Chester Elec. Constr. Corp. v. Hastings Terraces, 284 App. Div. 966, 967.) In this case, Loral delayed making its demand for a refund until three days after Austin’s last delivery on the second subcontract. Loral’s reason — for waiting until that time — is that it feared another stoppage of deliveries which would again put it in an untenable situation. Considering Austin’s conduct in the past, this was perfectly reasonable, as the possibility of an application by Austin of further business compulsion still existed until all of the parts were delivered.
In sum, the record before us demonstrates that Loral agreed to the price increases in consequence of the economic duress [pg. 134] employed by Austin. Accordingly, the matter should be remanded to the trial court for a computation of its damages.
The order appealed from should be modified, with costs, by reversing so much thereof as affirms the dismissal of defendant Loral Corporation’s claim and, except as so modified, affirmed.
In summarizing the Special Term’s decision and its own, the Appellate Division decided that “the conclusion that Loral acted deliberately and voluntarily, without being under immediate pressure of incurring severe business reverses, precludes a recovery on the theory of economic duress” (35 A.D.2d 387, 391).
When the testimony of the witnesses who actually took part in the negotiations for the two disputing parties is examined, sharp conflicts of fact emerge. Under Austin’s version the request for a renegotiation of the existing contract was based on Austin’s contention that Loral had failed to carry out an understanding as to the items to be furnished under that contract and this was the source of dissatisfaction which led both to a revision of the existing agreement and to entering into a new one.
This is not necessarily and as a matter of law to be held economic duress. On this appeal it is needful to look at the facts resolved in favor of Austin most favorably to that party. Austin’s version of events was that a threat was not made but rather a request to accommodate the closing of its plant for a customary vacation period in accordance with the general understanding of the parties.
Moreover, critical to the issue of economic duress was the availability of alternative suppliers to the purchaser Loral. The demonstration is replete in the direct testimony of Austin’s witnesses and on cross-examination of Loral’s principal and purchasing agent that the availability of practical alternatives was a highly controverted issue of fact. On that issue of fact the [pg. 135] explicit findings made by the Special Referee were affirmed by the Appellate Division. Nor is the issue of fact made the less so by assertion that the facts are undisputed and that only the application of equally undisputed rules of law is involved.
1. The best reply Loral received was from a vendor who stated he could commence deliveries sometime in October.
2. Loral makes no claim in this action on the second subcontract.
3. See, e.g., du Pont de Nemours & Co. v. Hass Co., 303 N.Y. 785, supra;Gallagher Switchboard Corp. v. Heckler Elec. Co., 36 Misc.2d 225, 226,supra; 30 East End v. World Steel Prods. Corp., 110 N.Y.S.2d 754, 757.
4. See, e.g., Kohn v. Kenton Assoc., 27 A.D.2d 709; Colonie Constr. Corp. v. De Lollo, 25 A.D.2d 464, 465; Halperin v. Wolosoff, 282 App. Div. 876; J. R. Constr. Corp. v. Berkely Apts., 259 App. Div. 830; Boss v. Hutchinson, 182 App. Div. 88, 92.
5. The suggestion advanced that we are precluded from reaching this determination because the trial court’s findings of fact have been affirmed by the Appellate Division ignores the question to be decided. That question, undoubtedly one of law (see Cohen and Karger, Powers of the New York Court of Appeals , § 115, p. 492), is, accepting the facts found, did the courts below properly apply the law to them.
6. Loral, as do many manufacturers, maintains a list of “approved vendors,” that is, vendors whose products, facilities, techniques and performance have been inspected and found satisfactory.


Husband and wife paid $83,475 for a new Volvo T8, plus $2,700 for a charging station. Volvo’s advertisements claimed that the T8’s battery range was 25 miles. In practice their T8 averaged a eight-10 miles of battery‐only driving. Husband filed suit, asserting a class of others similarly situated under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), and received a letter from Volvo that offered “a full refund upon return of the vehicle if you are not satisfied with it for any reason” and to “arrange to pick up your vehicle.” The next day Volvo moved to dismiss husband’s suit on the theory that he lacked standing because only his wife was on the car’s title. Before the court ruled on the motion, his wife was added to the complaint. Volvo moved to dismiss, contending that she lacked standing because its letter had offered complete relief before she filed suit. The district judge agreed and dismissed. The Seventh Circuit reversed, seeing “no reason why the timing of the offer has such a powerful effect. Offers do not bind recipients until they are accepted. An unaccepted pre‐litigation offer does not deprive a plaintiff of her day in court.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3829 XAVIER LAURENS and KHADIJA LAURENS, Plaintiffs Appellants, v. VOLVO CARS OF NORTH AMERICA, LLC, and VOLVO CAR USA, LLC, Defendants Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 4507 — Harry D. Leinenweber, Judge. ____________________ ARGUED APRIL 4, 2017 — DECIDED AUGUST 22, 2017 ____________________ Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges. WOOD, Chief Judge. The idea of a theme and variations is a common one in music. It should be in law, too. Here we return to the familiar theme of a defense effort to pretermit a pro posed class action by picking off the named plaintiff’s claim. Several variations on that theme have been tried and have failed. See Campbell Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) 2 No. 16 3829 (Rule 68 offers of judgment); Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017) (Rule 67 payments to court regis try). Undeterred, the defendant in the case now before us as serts that an unaccepted offer of relief before a putative plain tiff files a lawsuit deprives that plaintiff of standing. We see no reason why the timing of the offer has such a powerful ef fect. Black letter contract law states that offers do not bind re cipients until they are accepted. See, e.g., ALI Restatement (Second) of Contracts § 17 (1981). Hence while the legal effect of every variation on the strategic mooting theme has not yet been explored, we are satisfied that an unaccepted pre litiga tion offer does not deprive a plaintiff of her day in court. I This case, at base, is about a car purchaser’s disappointed expectations. The cars are Volvos, and the dispute centers on the difference between the model XC90 and the XC90 T8 (“the T8”). Both are luxury SUVs, but the XC90 runs on gas, whereas the T8 is a plug in hybrid. The latter feature comes at a premium; the 2016 T8 retailed for around $20,000 more than its gas only sibling. Plaintiffs Xavier and Khadija Laurens overcame the sticker shock and paid $83,475 for a new T8. They also purchased, for an additional $2,700, a charging sta tion that was installed in their garage. The Laurenses quickly realized that the car they bought fell short of the car the ads had promised. Volvo’s advertise ments had claimed that the T8’s battery range was 25 miles, and the Laurenses had relied on this representation when de ciding to purchase that model for a premium price. In practice their T8 averaged a puny eight to ten miles of battery only No. 16 3829 3 driving, far below the promised distance. On April 21, 2016, Xavier filed this action, both on his own behalf and for a class of others similarly situated. He relied on the Class Action Fair ness Act (CAFA), 28 U.S.C. § 1332(d), for subject matter juris diction, because he was a citizen of Illinois, whereas Volvo Cars USA is a Delaware limited liability company controlled by Volvo Cars of North America (another Delaware LLC), which is itself wholly owned by its Swedish parent (a publicly traded, share based limited liability company, or AB, with its principal place of business in Gothenburg, Sweden), and the aggregate amount in controversy exceeds (he asserted) $5,000,000. For himself, Xavier sought damages equal to the premium he paid for the hybrid model ($20,000), the cost of the charging station ($2,700), injunctive relief, punitive dam ages, and attorney’s fees. The complaint’s core theory was that Volvo’s misleading advertising caused Xavier to pay the extra money for the hybrid version of the car. A wrinkle arose when it turned out that Xavier was not listed on either the car’s purchase agreement or the title; only Khadija was. On June 8, 2016, the Laurenses received a letter from Volvo that offered “immediately” to give Khadija (but not Xavier) “a full refund upon return of the vehicle if you are not satisfied with it for any reason” and to “arrange to pick up your vehicle at your home.” The next day Volvo moved to dismiss Xavier’s suit on the theory that he lacked standing; it argued that Khadija, the titleholder, was the only person with any possible injury, and she was not at that moment a party. Before the district court ruled on the motion, the Laurenses added Khadija to the complaint. Volvo responded with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1); its motion contended that Khadija also lacked standing because its letter had 4 No. 16 3829 offered complete relief for her before she filed suit. The district judge agreed with Volvo, finding that Xavier had never suffered an Article III injury and that Volvo’s offer had redressed Khadija’s injury before she became a party. The court dismissed the action, and this appeal followed. II While the Constitution does not define the precise extent of “[t]he judicial Power of the United States,” it does say that this power is limited to “Cases” and “Controversies,” U.S. CONST. art. III §§ 1, 2. This requires federal courts to po lice their own authority, so that they do not entertain matters outside the scope of these terms. Of the several doctrines that perform the policing task, the one with which we are con cerned is standing. The Supreme Court has said that “the ir reducible constitutional minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). In the Court’s words, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged con duct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). At the pleading stage, it is normally not difficult to pass the standing bar. Plaintiffs need only “‘clearly … allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). Things get more complicated when the defendant challenges a plaintiff’s standing in a motion to dismiss for want of Article III jurisdiction, pursuant to Rule 12(b)(1). District courts deciding such motions “must ac cept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff’s favor, un less standing is challenged as a factual matter.” Remijas v. No. 16 3829 5 Neiman Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir. 2015) (em phasis added) (quoting Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)). If a defendant raises a factual chal lenge to standing, the plaintiff bears the burden of proving standing by a preponderance of the evidence. Kathrein v. City of Evanston, Ill., 636 F.3d 906, 914 (7th Cir. 2011). We review the district court’s standing decision de novo, accepting any un derlying factual findings unless they are clearly erroneous. Winkler v. Gates, 481 F.3d 977, 982 (7th Cir. 2007). Causation and redressability are not in question here. The Laurenses maintain that Volvo caused their injury by mis leading them, and they seek damages that would redress the financial harms that flowed from the misrepresentation. Their complaint also includes a request for injunctive relief, but it is premature for us to say whether they do or do not have stand ing for this part of the case. On the one hand, even an individ ual plaintiff “bears the burden of showing that he has stand ing for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). That means that either Xavier or Khadija had to demonstrate a stake in injunctive relief in par ticular. In Summers, the plaintiffs failed to meet that burden, because the parties had settled their dispute with respect to the only national forest in which they had a personal stake, and Volvo suggests that the Laurenses’ claim for injunctive relief should fail for similar reasons. Once burned, twice shy, it argues: how will either Xavier or Khadija ever be fooled again by its advertising? But there is another side to this ar gument. First, unlike the plaintiffs in Summers, as we discuss below, the question whether the underlying dispute has been settled is a live one. Second, the fact that the Laurenses are seeking to serve as class representatives complicates matters. The Supreme Court held in United States Parole Comm’n v. 6 No. 16 3829 Geraghty, 445 U.S. 388 (1980), that “an action brought on be half of a class does not become moot upon expiration of the named plaintiff’s substantive claim, even though class certifi cation has been denied.” Id. at 404. “When the claim on the merits is ‘capable of repetition, yet evading review,’ the named plaintiff may litigate the class certification issue de spite loss of his personal stake in the outcome of the litiga tion.” Id. at 398. This may be one of those situations: at some point each class member will discover that the performance of the T8 falls far short of what was promised. But that is a different form of pick off. Moreover, if the Laurenses’ real dis pute is that Volvo engages in misleading advertising more generally, then the fact that one lie has been uncovered may not, in fact, resolve the full dispute. These matters were not explored in any detail in the dis trict court, because of its conclusions that Xavier has no claim and the offer of relief to Khadija killed the case before it began. The question whether those conclusions are correct is squarely before us. If either named plaintiff has a live dam ages claim that will support injury in fact, further proceed ings will be necessary, and that would be the best time to ex plore whether either one also has standing to pursue any type of injunctive relief. Since Volvo has not raised a factual chal lenge to causation or redressability, and the latter allegations appear sufficient to us, we consider these requirements to be satisfied. III The outcome of this case thus turns on injury in fact—in particular, on who was injured and whether any such injury had already been fully redressed by the time the injured party was involved in the litigation. We begin with the “who,” and No. 16 3829 7 we discuss Xavier first. Volvo’s motion to dismiss asserted that Xavier suffered no injury in fact because his name does not appear on either the purchase agreement for the T8 or the title. The Laurenses respond that those documents reflect only who owned the vehicle, not who purchased it. But that is not accurate. Hypothetically, Xavier could have bought the car and given it to Khadija, but that is not what the documents show. Instead, it is Khadija’s name that appears on the pur chase agreement. This indicates that she not only owns the T8, but also that she bought it. It does not matter that Volvo’s ev idence does not definitively indicate who furnished the funds. That was not its burden. All Volvo needed to do was to chal lenge Xavier’s standing as a factual matter, and the documen tation it provided was enough to do so. That put the ball in the Laurenses’ court; it became their burden to “com[e] for ward with competent proof that standing exists.” Apex Digi tal, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (internal quotation marks omitted). With respect to Xavier, they did not provide any such evidence. Their failure to do so means that Xavier has not alleged the personal injury in fact that must exist for him to have standing to sue over the T8 purchase. The Laurenses have one more theory with respect to Xavier: they argue that he has standing based on his purchase and installation of the $2,700 charging station for the T8. Here again the Laurenses rely solely on the allegations in their complaint. As far as it goes, that is enough, because Volvo points to no facts contradicting the complaint’s allegations, which we thus take as true. Remijas, 794 F.3d at 691. But if all he has is the charging station, Xavier has a different jurisdictional problem. There is no indication that CAFA jurisdiction would lie for this part of the case, and on an 8 No. 16 3829 individual basis a $2,700 claim is so far below the $75,000 amount in controversy requirement that we can say that it appears to a legal certainty that his claim falls below the necessary amount. See 28 U.S.C. § 1332(a); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). By now, however, Xavier is not the only plaintiff. Khadija was added as a plaintiff on June 29, 2016, after Volvo sent its offer of settlement but long before the district court’s October 13, 2016 order of dismissal. If Khadija has standing, her case can move forward. At that point, if the court concludes that CAFA jurisdiction is proper (a question on which we make no comment), then supplemental jurisdiction would likely extend to Xavier’s related claim. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558 (2005) (citing 28 U.S.C. § 1367(a)). With that in mind, we turn to Khadija’s standing. Khadija undoubtedly would have an injury in fact if Volvo had not offered a refund, and we will assume for the sake of argument that she would not have an injury if she had accepted its offer. But neither of those things happened. In stead, we must decide what happens if an offer is made before the person sues (or, as here, joins an existing action), but that offer is not accepted. The Supreme Court’s most recent foray into this general area is Campbell Ewald. Even though it dealt with mootness rather than standing, the opinion is nonetheless instructive. Volvo’s position is that Khadija lacked standing at the mo ment she was added as a plaintiff. Since “mootness [is] the doctrine of standing set in a time frame,” Geraghty, 445 U.S. at 397, we begin with a closer look at Campbell Ewald. No. 16 3829 9 In that case, putative class representative José Gomez sued the Campbell Ewald Company for allegedly violating the Tel ephone Consumer Protection Act. Before Gomez moved for class certification, Campbell Ewald submitted an offer of judgment under Federal Rule of Civil Procedure 68 that would have provided Gomez complete relief on his individ ual claim. When he did not accept, the company argued that its offer alone was enough to moot the case. The Supreme Court saw things otherwise. It held that “an unaccepted offer to satisfy [a] named plaintiff’s individual claim [is not] sufficient to render a case moot when the com plaint seeks relief on behalf of the plaintiff and a class of per sons similarly situated.” Campbell Ewald, 136 S. Ct. at 666. The key analogy, repeated throughout the opinion, was to contract law: “An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect.” Id. at 670 (quoting Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1533 (2013) (Kagan, J., dissenting)); see id. at 666, 670, 672 (other comparisons to contract law). The contract frame work was not confined to the majority opinion. Justice Thomas concurred because his examination of the common law history “demonstrate[d] that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related.” Id. at 674 (Thomas, J., concur ring) (emphasis added). In the end, six Justices agreed that an unaccepted offer of relief, like “other unaccepted contract of fers … creates no lasting right or obligation.” Id. at 666 (ma jority opinion). The only salient differences between this case and Campbell Ewald are that Volvo made its offer before Khadija sued, and it communicated the offer through a generic letter 10 No. 16 3829 instead of Rule 68’s more formal process. Neither distinction matters. Nothing about Campbell Ewald’s reasoning is confined to Rule 68, which is precisely why we extended its holding to Rule 67 in Fulton Dental, 860 F.3d 541. As we noted in that opinion, there is no principled distinction between attempting to force a settlement on an unwilling party through Rule 68, as in Campbell Ewald, and attempting to force a settlement on an unwilling party through Rule 67. In either case, all that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree. Id. at 545. If forcing a contract on an unwilling party is unacceptable under the judicially supervised procedures of Rule 68 and Rule 67, we see no reason why an impersonal note offering a refund should have such a powerful effect. Nor does it matter that Volvo’s offer preceded Khadija’s lawsuit. Campbell Ewald’s core lesson is that unaccepted contract offers are nullities; settlement proposals are contract offers; and therefore unaccepted settlement proposals are nullities. Nothing about that logic turns on whether a suit has been filed. Campbell Ewald’s contractual approach is, if anything, a better fit for claims that have not reached the courthouse. The Supreme Court has long held “that a cause of action is a spe cies of property protected by the Fourteenth Amendment’s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)); see also id at. 429 (approaching Fifth Amendment’s Due Process Clause the same way). The Court No. 16 3829 11 has applied this rule expansively, in contexts ranging from in ternational relations to banking to employment law. E.g. Dames & Moore v. Regan, 453 U.S. 654 (1981); Mullane, 339 U.S. 306; Logan, 455 U.S. 422. The bankruptcy code also counts le gal rights among the types of property that can support bank ruptcy claims. See In re Airadigm Commc’ns, Inc., 616 F.3d 642, 659 (7th Cir. 2010). Everyday litigation confirms that under standing. The reason parties settle cases is because both sides understand that legal claims have monetary value, just like any other form of property. Volvo’s offer to trade Khadija’s claim for $83,475 illustrates the point: it sought to trade one form of property (claim) for another (currency). Any first year law student knows that contract formation requires offer, acceptance, and consideration. Whether we characterize the deal Volvo was proposing as a swap of a car for money (as we suggested earlier) or a swap of a claim for money (dropping the claim in exchange for $83,475), until there is an acceptance there is no contract. (We take no posi tion on which is the better description.) Khadija considered the trade and found it wanting. Whether she did so because of the cost of the charging station, or because she wanted ad ditional damages for Volvo’s betrayal, or she wanted to be re imbursed for the nuisance of a short range electric car, or she wanted a bonus for serving as a class representative, is beside the point. Volvo has no right preemptively to force her to ac cept a contract offer. Indeed, an offeror is almost never per mitted to force acceptance on an unwilling offeree. ALI Re statement (Second) of Contracts §§ 17, 50–70, 159–77; see also Campbell Ewald, 136 S. Ct. at 672 (“In sum, an unaccepted set tlement offer or offer of judgment does not moot a plaintiff s case.”). Consider what this case would look like if the parties’ roles were reversed. Khadija could not argue that she had the 12 No. 16 3829 right unilaterally to compel an unwilling Volvo to trade a full refund in exchange for her claim. Our legal system places a premium on property rights, and protecting them is among the judiciary’s most important functions. Volvo’s position is also at odds with the traditional rule that “a mere offer” does not strip the court of jurisdiction. Campbell Ewald, 136 S. Ct. at 675 (Thomas, J., concurring). Plaintiffs may opt for trial in the face of offers far more con crete than Volvo’s letter; they could even reject “tender,” which was “an offer to pay the entire claim before a suit was filed, accompanied by ‘actually produc[ing]’ the sum ‘at the time of tender’ in an ‘unconditional’ manner.” Id. at 675 (quot ing M. BACON, A NEW ABRIDGMENT OF THE LAW, 314–15, 321 (1856)). While Campbell Ewald dictates the outcome here, we note that pragmatic considerations point in the same direction. Both of the Campbell Ewald dissents argued that some Rule 68 offers could moot claims, but only if the defendant makes “ab solutely clear” that it will pay the relief it has offered. Id. at 683 (Alito, J., dissenting); id. at 680 (Roberts, C.J., dissenting). This was not a passing concern—Justice Alito stressed that the inevitability of payment was “the linchpin for finding moot ness in this case.” Id. at 683 (Alito, J., dissenting). Certainty may be in the eye of the beholder, and so some plaintiffs may contend that it is not clear enough that a defendant will make good on an offer of relief. Nonetheless, when offers are made during litigation, judicial oversight should mitigate the uncer tainty: a defendant’s failure to follow through would incur the wrath of the supervising court, and egregious misconduct might lead to sanctions. Those safeguards do not apply to of No. 16 3829 13 fers made before the lawsuit begins. Here, if Khadija had ac cepted Volvo’s offer and then Volvo had failed to pay, she would be right back where she started, with a new breach of contract claim. IV Since Khadija did not accept Volvo’s offer, her injury in fact from Volvo’s alleged misrepresentations remains unre dressed. We therefore REVERSE the judgment of the district court dismissing this case for lack of standing and remand for further proceedings consistent with this opinion. 14 No. 16 3829 KANNE, Circuit Judge, concurring. I join in the majority’s opinion reversing and remanding the district court’s deci sion for further consideration. I write separately to further emphasize that on remand the district court is free to draw, or not to draw, the conclusion that Khadija has not met her burden to show standing for injunctive relief.
Defendant's offer of relief in purported class action, before a wife was added to a complaint filed by her husband, was not a basis for dismissal of wife's claim.


WILLIAM DALY, TRUSTEE OF BORDER REALTY TRUST vs. SALVADOR F. PORRAS, VIRGINIA A. HOEFLING and ROBERT H. OPPENHEIMER, individually and as the same constitute the BOARD OF APPEALS OF THE TOWN OF WINCHESTER and the TOWN OF WINCHESTER.
The plaintiff William Daly, as Trustee of Border Realty Trust appeals pursuant to the provisions of G.L. c. 40A, §17 from a decision of the Board of Zoning Appeals of the Town of Winchester ("ZBA") which denied with prejudice the plaintiff's application for site plan approval. The complaint also contains a count pursuant to the provisions of G.L. c. 240, §14A seeking a declaratory judgment as to the application of the by-law to the plaintiff's land. Since I hold that the decision of the Board of Appeals was wrong as a matter of law and approve the site plan subject to certain conditions, I do not reach the count pursuant to c. 240, §14A.
A trial was held at the Land Court on August 7, 1990 at which a stenographer was appointed to record and transcribe the evidence. [Note 1] At the trial the plaintiff called as witnesses Donald J. Forand, a registered land surveyor and survey manager for BSC which prepared the site plan, Robert Emond, vice president and director of operations for SpeeDee Oil Change and Tune-up of New England and Dominic J. Ceratorri, the building commissioner and zoning enforcement officer of the Town of Winchester. The defendants witnesses were Elaine Vreeland, the town's conservation administrator, John Ciarcia, town engineer and Planning Board engineer and Kevin P. Mawn, a Winchester police officer and the safety officer for the town. A total of fourteen exhibits, some with multiple parts and three chalks were introduced, which are incorporated herein for the purpose of any appeal.
1. The plaintiff is the owner of a parcel of land situated on Main Street (Route 38) in Winchester at the city-town line with Woburn. The parcel in question consists of 14,385 square feet with a frontage on Main Street of 77.17 feet and on Sheriton Circle of approximately 140 feet. It conforms in all respects to the dimensional requirement of the zoning by-law.
2. The locus is situated in the General Business District. The plaintiff's use of the premises would encompass a facility for the quick change of motor vehicle oil and engine tune-ups.
"Yes" * - permitted as of right but also subject to additional site plan review requirements of subsection 8.7 of this by-law; also in the RB-20, RA-120, PRD and MD Districts permitted uses above a certain dwelling unit density per acre are subject to a special permit from the Board of Appeals (see Section 6.29) Affordable Housing Incentives).
5. The form prepared by the ZBA and which applicants are instructed to use does not recognize this category, i.e., site plan review without the requirement of a special permit. Accordingly the application filed by the plaintiff bears an X next to the category of "Special Permit in accordance with Zoning By-Law Section 8.7." However, the wording of the application which clearly recites that the petitioner was requesting site plan approval to enable the petitioner to demolish the existing nonconforming structures consisting of garages and residential structure and to build a new single structure as shown on said plans for oil change and tune-up garage made no reference to the special permit. The brief which was filed on behalf of the plaintiff also made or should have made it clear to the Board that there was no requirement for a special permit for the proposed use but rather the Board was to consider the site plan and to make suggestions.
6. Section 8.7 of the Zoning By-law which provides for site plan review mµst have been drafted prior to the introduction of the category now before the Court, of use permitted as of right but with site plan approval, since Section 8.7 refers only to special permit and in such instances provides that a special permit shall be issued "only if the Board of Appeals makes a finding and determination that the proposed placement of buildings, provisions for waste disposal, surface drainage, parking areas, driveways, and the location of intersections of driveways and street will constitute a suitable development and will not result in substantial detriment to the neighborhood."
In such cases, a special permit shall be issued only if the Board of Appeals makes a finding and determination that the proposed placement of buildings, provisions for waste disposal, surface drainage, parking areas, driveways, and the location of intersections of driveways and streets will constitute a suitable development and will not result in substantial detriment to the neighborhood.
8. The site slopes gradually toward Main Street so that a runoff in that direction may be anticipated, particularly with the paving of the property. The town engineer recommends that a drainage plan be prepared showing proposed manholes and catch basins on the site and the tie-in into an existing town drain system together with calculations demonstrating existing and post- construction runoffs with any appurtenances necessary to handle the increase, if any, was recommended (Exhibit No. 14A).
Questions also have been raised as to lighting which is not covered by the by-law provisions, and as to any proposed signs. The latter will have to comply, of course, with any sign by-law in the Town of Winchester and any applicable provisions of the zoning by-law and need not be dealt with in connection with the site plan.
9. The disposal of hazardous waste into which category oil falls, as Saddam Hussein has discovered, is subject to the requirements of the Department of Environmental Protection and perhaps to the Federal Environmental Protection Agency. The site plan shows a proposed oil and grease trap and beneath the bays where the oil changes will take place the standard design of a facility such as that proposed by the plaintiff makes provision for protection of the environment.
The queuing of cars waiting to enter the facility was a concern to town officials, but the proposed design with entry from Sheriton Circle to the rear of the premises and the exit therefrom onto Main Street seems an appropriate traffic pattern. Beyond the locus on Sheriton Circle the area is residentially zoned and the presence of a church with its attendant traffic may conflict with the traffic generated by the proposed use. The situation does not appear to be intractable and should be limited to the immediate vicinity of the site. If the business is successful and queuing becomes a concern, the town may wish to make Sheriton Circle one way leading westerly from Main Street, at least during certain hours of the day and certain days of the week. Experience may also dictate the necessity of a special police officer at times should problems develop in traffic control.
The Winchester Zoning By-law and the ZBA have never clearly distinguished the difference between a use permitted as of right with site plan approval required and a special permit for a site plan. The decision of the Appeals Court in Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986) differentiating between uses permitted as of right and those allowed only upon compliance with the requirements of a traditional special permit reiterated that "a use allowed as of right cannot be made subject to the grant of a special permit inasmuch as the concepts of a use as of right and a use dependent on discretion are mutually exclusive." See SCIT. Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). The Appeals Court further went on to state that the ZBA in such instances where a use was permitted as of right was limited to imposing reasonable terms and conditions on the proposed use and did not have discretionary power to deny approval. That clearly was the route that the ZBA should have followed in the present case.
Chief Justice Greaney then in Prudential went on to weigh the role of the judge in reiewing a board's decision denying approval of a site plan submitted in connection with the use allowed as of right. In short, the court determined that the judge was essentially to examine the proposal to see if any problems which concerned the board were so intractable that it could admit of no reasonable solution. "Short of independently finding that, he was not obliged to give deference to the board's decision" (283). The present case is simpler than that in Prudential where there was a lengthy trial over the better part of eighteen days directed exclusively to traffic. The concerns of the town, however, being nonetheless real, but having in mind the admonition of the Appeals Court that a use permitted as of right cannot be prohibited unless there is no solution to the problems engendered by this particular site, I find and rule that the board mistook its role and gave no weight to the difference between a use permitted as of right with site plan review and a true special permit category. See, however, Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 (1970) which might suggest that the difference may not lie in the site plan requirements but in whether it is a true special permit case as in Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486-488 (1979). In any event it is clear that as the by-law read at the time of the application, the hearing and the decision of the board, the board under the structural situation here had no right to deny the application but was limited to imposing reasonable regulations.
In view of the time delays to which the plaintiff has been subjected I annul the decision of the ZBA and approve the site plan subject to the requirements that a drainage plan be prepared showing proposed manholes and catch basins on the site and where they will be tied in to the existing town drain system together with the calculations as to existing and post-construction runoffs with proposed provisions for handling any additional discharge of surface water. Should the actual operation of the facility result in queuing beyond that adjacent to the Sheriton Circle sideline of the locus, the town may wish to consider making Sheriton Circle one way westerly from Main Street. Although not imposed as a condition at this time, the hiring of a special police officer on weekends may prove to be necessary if the operation is successful.
[Note 1] After the conclusion of the trial the Winchester Zoning Bylaw was amended at a town meeting on November 5, 1990 by eliminating the category "Yes*" as it previously appeared. The effect of the amendment was to eliminate a category of site plan approval which did not require a special permit. The by-law has not as yet been approved by the Office of the Attorney General, and it is inapplicable, in any event, to the present dispute.