WOBURN ZONING BOARD OF APPEALS v. HOUSING APPEALS COMMITTEE of the DEPARTMENT of HOUSING and COMMUNITY DEVELOPMENT; CIRSAN REALTY TRUST, and WOBURN 38 DEVELOPMENT, LLC.
DECISION ON MOTION AND CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS.
This is an appeal pursuant to G. L. c. 40B, §22, of a decision of the defendant Housing Appeals Committee of the Department of Housing and Community Development (HAC) overturning a denial by the plaintiff Woburn Zoning Board of Appeals (the Board) of an application by defendant Woburn 38 Development, LLC (Developer) for a change in an approved comprehensive permit previously issued for an affordable housing development to be constructed at 1042 Main Street in Woburn. The project, as proposed to be modified, would consist of 168 dwelling units in four buildings on a nine-acre site. The HAC ruled in its Decision on Project Change that the proposed change would make the project significantly less uneconomic than the originally approved project, that the modified project was consistent with local needs, and ordered the Board to grant the changes to the previously approved comprehensive permit.
The Boards appeal of the HACs decision overturning the Boards denial of the requested change in the project was filed in Suffolk County Superior Court, C.A. No. SUCV2015-01544, pursuant to G. L. c. 40B, §22. Upon the request of the Developer, by an order of the Chief Justice of the Trial Court dated July 20, 2015, the case was transferred to the Land Courts Permit Session, pursuant to G. L. c. 185, §3A, which gives the Land Court concurrent jurisdiction with the Superior Court over, among other actions, appeals under the comprehensive permit law, G. L. c. 40B.
Because this case seeks judicial review of administrative agency proceedings based on an administrative record pursuant to the standards set forth in G. L. c. 30A, §14, the procedures set forth in Land Court Standing Order 2-06 govern. Accordingly, the HAC filed the Administrative Record (A.R.) of its proceedings, in six volumes, consisting of the transcript of the hearings before the HAC, pleadings, exhibits, and other documents filed by the parties or considered by the HAC. The Board filed a motion for judgment on the pleadings with a supporting memorandum and an appendix. The HAC and the Developer filed oppositions to the Boards motion, and each filed cross-motions for judgment on the pleadings, along with supporting memoranda and appendices. The Board filed a reply to the HACs and the Developers cross- motions. A hearing was held on the motion and cross-motions for judgment on the pleadings on February 11, 2016, after which the court took the matter under advisement.
For the reasons set forth below, the Boards motion for judgment on the pleadings is DENIED, the Developers and the HACs cross-motions for judgment on the pleadings are ALLOWED, and judgment will enter affirming the Decision on Project Change of the Housing Appeals Committee.
1. The present Developers predecessor-in-title, Cirsan Realty Trust (Cirsan), applied in 2000 to the Board for approval of a comprehensive permit pursuant to G. L. c. 40B, §§20-23. Cirsan proposed to build a mixed-income affordable rental development on a nine-acre site at 1042 Main Street in Woburn (the Property). The project was to include 168 dwelling units in one six-story building, with an underground garage. The Property is primarily in a two-family zoning district and partially in a one-family zoning district.
2. The Board denied Cirsans application for a comprehensive permit in a decision dated October 4, 2001. Cirsan appealed to the HAC and the HAC overturned the Boards denial in a decision dated June 11, 2003. The Board appealed the HACs 2003 decision to Superior Court, which upheld the HAC, and thereafter to the Appeals Court, which affirmed the Superior Court decision on May 31, 2006.
3. Following the granting of an extension of the comprehensive permit by the Board, the present Developer purchased the Property and Cirsans rights in the comprehensive permit on February 25, 2011. Subsequently, the Board denied a further extension of the comprehensive permit, but was reversed by the HAC. The Board granted a further extension on January 19, 2012.
4. On February 6, 2012, the Developer filed a request to modify the approved comprehensive permit. The Board found, without objection, that the proposed modification was substantial, and conducted seven hearings on the proposed modification.
5. The Board issued a decision denying the proposed modification on October 19, 2012, which the Developer appealed to the HAC.
6. In accordance with HAC procedures, on November 22, 2013 the parties submitted a Pre- Hearing Order that the HAC adopted on January 7, 2014. In accordance with the Pre- Hearing Order, the parties provided pre-filed direct testimony by affidavit of fact and expert witnesses.
7. The HAC conducted an evidentiary hearing over two days in November, 2014 and on April 23, 2015 issued a decision entitled, Decision on Project Change. In its decision, the HAC ruled that the decision of the Board denying the proposed modification was not consistent with local needs, ordered that the decision of the Board be vacated, and directed the Board to permit the change in the comprehensive permit as proposed by the Developer, subject to certain conditions.
10. The original application for a comprehensive permit, as denied by the Board and as later approved by the HAC and upheld by the Superior Court and the Appeals Court, called for construction of a single, six-story building with 168 dwelling units and two stories of underground parking on the nine-acre Property.
11. The proposed modified project that was approved by the HAC in its April 23, 2015 Decision on Project Change, calls for the construction of the same number of dwelling units (168), but in four three-story buildings, plus a one-story community building, occupying a larger portion of the Property than would have been occupied by the project as originally approved.
12. The Property is on a steep hilltop, well above the elevation of the street from which it will be accessed, with much ledge and rock that must be removed for the creation of a winding access road from Main Street to the building locations, and for the excavation of foundations, stormwater structures, and utility trenches. Construction of the buildings as proposed in the modified project will require removal of approximately fifty feet of the elevation of the present undeveloped hill, from an elevation of approximately 130 feet above Main Street to approximately 80 feet above Main Street.
13. Site preparation under either the original or the modified project will require significant blasting for removal of ledge, and will require thousands of truck trips for removal of the debris. The number of truck trips for removal of debris will depend on whether the ledge removed from the site is processed, i.e., crushed, on site or elsewhere. In either case, the number of truck trips required for ledge removal and the number of days required for blasting and site work, will be roughly double for the modified four-building project what it would have been for the project as originally approved.
14. As found by the HAC, if the ledge and other removed material is processed on-site, the number of days of blasting and ledge removal would be approximately 122 days for the project as originally approved, as opposed to approximately 233 days for the project as modified. If the material is not processed on-site, the number of days for blasting and ledge removal for the project as originally approved would be approximately 155 days, as opposed to approximately 276 days for the project as modified.
15. Notwithstanding the difference in the number of days required for blasting, other site work, and ledge removal between the original project and the project as modified, the level of noise generated by these operations on any given day will be no different for the modified project than it would have been for the project as originally approved.
1. REVIEW UNDER CHAPTER 40B.
This action is an appeal from a decision of the HAC overturning the Boards denial of a modification of a comprehensive permit. The HAC is charged with the resolution of certain disputes arising under G. L. c. 40B, §§20-23 (Chapter 40B), the comprehensive permit law. The core purpose of Chapter 40B is to streamline the process for obtaining the necessary authorization to build much needed low and moderate income housing. Zoning Bd. of Appeals of Amesbury v. Hous. Appeals Comm., 457 Mass. 748 , 759 (2010). Chapter 40B provides a vehicle for overriding local zoning restrictions, but not State regulations, so as to prevent cities and towns . . . use of their zoning powers to exclude affordable housing. Taylor v. Lexington, 451 Mass. 270 , 278 (2008), citing Bd. of Appeals of Hanover v. Hous. Appeals Comm., 363 Mass. 339 , 347 (1973); Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71 , 76 (2003). A developer seeking to build affordable housing may apply to the local board of appeals for a Chapter 40B comprehensive permit instead of obtaining separate approval from each local board having jurisdiction over the project. Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass. 811 , 815 (2002). The board of appeals is empowered to either grant the application, with or without conditions, or deny it. G. L. c. 40B, §21. If the board of appeals denies a permit application, as here, the applicant may appeal the decision to the HAC. G. L. c. 40B, §22.
Before the HAC, when a change to a previously issued comprehensive permit has been denied, the burden is initially upon the applicant/developer to prove not only that the denial makes the proposed project uneconomic, but also that the original project is significantly more uneconomic than the developers current proposal. G. L. c. 40B, §§22-23; Bd. of Appeals of Hanover v. Hous. Appeals Comm., 17 LCR 243 , 245 (2009). It is only after the developer meets this standard that the burden shifts to the board of appeals to show that there is an overriding local concern that exceeds the regional need for affordable housing. Id. at 245. If the HAC finds that the decision denying the changes to the comprehensive permit was unreasonable, made the project uneconomic, and was not consistent with local needs, an order shall issue directing the board of appeals to approve the applicants permit. Id. at 246.
The hearing by the [HAC] shall be limited to the issue of whether, in the case of the denial of an application, the decision of the board of appeals was reasonable and consistent with local needs and, in the case of an approval of an application with conditions . . . imposed . . . whether such conditions . . . make the construction or operation of such housing uneconomic and whether they are consistent with local needs. . . . If [HAC] finds, in [such a] case . . . that the decision of the board makes the building or operation of such housing uneconomic and is not consistent with local needs, it shall order such board to modify or remove any such condition . . . so as to make the proposal no longer uneconomic . . . Decisions or conditions . . . imposed by a board of appeals that are consistent with local needs shall not be vacated, modified or removed . . . notwithstanding that such decisions or conditions . . . have the effect of making the applicants proposal uneconomic.
Section 22 of Chapter 40B provides that HAC decisions may be reviewed in accordance with the provisions of G. L. c. 30A, §14. This form of judicial review has a limited scope and is confined to the administrative record. Zoning Bd. of Appeals of Holliston v. Hous. Appeals Comm., 80 Mass. App. Ct. 406 , 414 (2011). In reviewing such decisions, courts apply a substantial evidence standard of review of the administrative record in light of the heavy burden borne by a local board that denies a comprehensive permit application to prove a specific health or safety concern of sufficient gravity to outweigh the regional housing need. Zoning Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 473. The HAC decision must be upheld if found to be supported by substantial evidence. Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 415-416. [T]he scope of review of an administrative decision pursuant to G. L. c. 30A, §14, leaves little room for appellate discretion. . . the agencys decision must be upheld if supported by such evidence as a reasonable mind might accept as adequate to support a conclusion. Town of Middleborough v. Hous. Appeals Comm., 449 Mass. 514 , 524 (2007), quoting Bd. of Appeals of Hanover, supra, 363 Mass. at 376. The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it. Zoning Bd. of Appeals of Lunenberg v. Hous. Appeals Comm., 464 Mass. 38 , 43 (2013), quoting G. L. c. 30A, § 14(7). A reviewing court must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate. Town of Middleborough, supra, 449 Mass. at 524, citing Zoning Bd. of Appeals of Wellesley v. Hous. Appeals Comm., 385 Mass. 651 , 654 (1982). A court may not displace an administrative board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Id. at 529.
However, the reviewing court must not confuse judicial deference and restraint [with] abdication. Natl Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 310 (1990). The HACs finding must be set aside if the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability to the contrary. Rogers v. Conservation Commn of Barnstable, 67 Mass. App. Ct. 200 , 205 (2006), quoting New Boston Garden Corp. v. Assessors of Boston, supra, 383 Mass. 456 , 466 (1981); Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 473 (stating an agency decision will not be upheld if it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law), quoting DSCI Corp. v. Dept of Telecomm. & Energy, 449 Mass. 597 , 603 (2007).
In evaluating the instant decision, this court must examine the HACs decision upon consideration of the entire record and determine whether there was substantial evidence to support it. Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 472, quoting Bd. of Appeals of Hanover, supra, 363 Mass. at 376. In light of this highly deferential standard, the Board, as the appealing party, bears a heavy burden of showing that the HAC decision is not supported by substantial evidence. Town of Middleborough, supra, 449 Mass. at 524.
Acknowledging the limited nature of the Courts review in this action, the Board ascribes three legal errors to the decision of the HAC, each of which, the Board maintains, is sufficient to annul the HACs decision. First, the Board argues that the HAC incorrectly concluded that the developer met its burden of proving that the project, as modified, was significantly less uneconomic than the project as originally approved. Second, the Board argues that the HAC incorrectly ruled that the developer did not have to meet its burden as set out in the Pre-Hearing Order, of making a prima facie showing that the project, as proposed to be modified, will comply with state and federal regulations relating to noise associated with blasting during construction. Third, the Board argues that the HAC incorrectly ruled that compliance of the project with federal and state regulations was not a matter properly before the Board pursuant to Chapter 40B. Each of these arguments is considered below.
2. THE BOARD DID NOT ERR IN FINDING THE MODIFIED PROJECT TO BE SIGNIFICANTLY LESS UNECONOMIC THAN THE PROJECT AS ORIGINALLY APPROVED.
The standard of review for an appeal to the HAC of a denial by the Board of an application to make a substantial change to a project already approved is not one that is directly addressed in Chapter 40B. Section 23 of Chapter 40B provides that the hearing before the HAC, shall be limited to the issue of whether, in the case of the denial of an application, the decision of the board of appeals was reasonable and consistent with local needs and, in the case of an approval of an application with conditions and requirements imposed, whether such conditions and requirements make the construction or operation of such housing uneconomic and whether they are consistent with local needs. In the case of a denial by a board of appeals of a request for a substantial change in an already-approved project, the HACs task is to determine whether the project as originally approved is significantly more uneconomic than the project as proposed to be modified. Avalon Cohasset, Inc. v. Cohasset Zoning Bd. of Appeals, HAC No. 05-09, at 13 (2007).
The parties agree that the HAC appropriately used the Return on Total Cost (ROTC) method in determining the economics of the project as originally approved and as proposed to be modified. See MHP Guidelines, A.R., Vol. III, p. 19. The ROTC is the projected net operating income of the project in its first year of operation divided by total development costs. Id. Where the parties differ is in the determination of the components of the ROTC. In support of its argument that the HAC erred in finding the modified project to be significantly less uneconomic than the project as originally approved, the Board points to the date from which the HAC determined the projected project costs and income, the inclusion of a developers fee as an element of the costs of the project, and the HACs acceptance of the Developers expert testimony on project costs. The Board also contests the HACs use of the same date to measure the yield on 10-year U.S. Treasury notes, which provided the basis for the uneconomic determination.
a. Time of the Hearing.
Here again, the parties agree that it was appropriate for the HAC to determine whether the project was consistent with local needs, including the determination as to the projects economics, as of the time of the hearing. Bay Watch Realty Trust v. Bd. of Appeals of Marion, HAC No. 02-28, at 21 (2005); Avalon Cohassett, Inc., supra, HAC No. 05-09, at 17-18. However, the parties differ as to the meaning of time of the hearing, with the Board arguing that economic costs and income should be projected as of the date of the commencement of the hearing, and the Developer arguing that the Board correctly used a date agreed upon in the Pre- Hearing OrderNovember 22, 2013. In its decision, the HAC ruled that the date for measurement of the economics of the project is the date the Pre-Hearing Order is signed, or another date, if agreed to by the parties. Decision on Project Change, p. 6, A.R. Vol. VI, p. 2605. The parties agreed by joint motion, allowed by the HAC, that the date for determining Reasonable Return also be moved to November 22, 2013. Joint Motion to Extend Date for Pre- Hearing Order, A.R., Vol. VI, p. 2554. Given that the hearing process takes place over an extended period, in excess of a year, it is reasonable and desirable that the economics of the project be determined as of a single date that allows the parties to prepare for a hearing that will allow for an apples to apples comparison of the projections by both sides. Since the hearing before the HAC is de novo, it is also sensible that the date is one that is relatively close to the time that the HAC actually hears the testimony. Although the hearing technically commences with the conference of counsel soon after the filing of the appeal, 760 CMR 56.07(7)(d)(1), the actual taking of testimony typically occurs, as it did in this case, many months later. That the technical commencement of the hearing with the conference of counsel is not really part of the evidentiary process is acknowledged by the fact that the Pre-Hearing Order, agreed to by the parties and issued by the HAC, was issued more than a year after the commencement of the hearing. The use of a date determined in the Pre-Hearing Order, and one that was in fact agreed to by the Board and the Developer, was neither arbitrary nor unreasonable, and it was consistent with the Boards prior practice and its statutory obligations.
b. Inclusion of Developers Fee as an Element of Costs.
The Board acknowledges, as it must, that a developers fee is properly included as an element of costs, and not as part of the developers profit, in calculating the relative uneconomics of the project as originally approved and as proposed to be modified. The Board nevertheless contends that the developers fee cannot be included as an element of costs if it is waived in the developers pro forma financials for the project.
The MHP Guidelines counsel including a developers fee as an element of costs, and not as profit. Developer overhead and fees are necessary project expenses that should not be considered as a component of developer profit. Accordingly, an 8 percent allowance for developer fees and overhead should be included in the pro forma for purposes of estimating rates of return and estimating whether a project is uneconomic. A.R., Vol. III, p. 526. In addressing the Boards argument that the developers fee cannot be included as a cost if it is waived in the pro forma, the Developers real estate expert testified that it is standard in the construction industry to waive such fees at the inception of a project and to treat the waived fee as a contribution of equity by the developer, leaving open the possibility of collecting the fee later if the cash flow of the completed project allows for the payment of the fee. Rebuttal Testimony of Edward J. Marchant, A.R., Vol. IV, pp. 1397-1398. It cannot be known with certainty at the time the pro forma is created, or for that matter, at the time of the hearing, whether any of the costs listed in the pro forma actually will be incurred in the amounts they are projected. A pro forma is, after all, just a projection of costs based on reasonable assumptions. Whether the developers fee will be incurred to the full amount projected is no less a projection than is a projection that excavation will cost a certain amount or that rents will generate a certain amount of income. The HAC properly exercised its discretion in accepting the testimony of the Developers expert that the developers fees may be incurred in the future and that it is standard in the industry in any event to treat waived fees as a contribution to equity. Decision on Project Change, p. 6, A.R., Vol. VI, p. 2611; see Town of Middleborough, supra, 449 Mass. at 529.
c. Acceptance of Developers Experts Testimony on Project Costs.
Additionally, the Board finds fault with the Developers construction cost expert updating the change in construction costs to November 22, 2013 from an earlier pro forma by getting revised prices from subcontractors, as opposed to the method used by the Boards expert, which was to multiply the costs on the earlier pro forma by an inflation factor. The HAC, in assessing the testimony of the Developers expert and that of the Boards expert, was in a position to assess their relative credibility, as they were subjected to cross-examination with respect to their justifications for the use of their respective methods, and the Developers expert, in particular, was subject to cross-examination on his efforts to obtain accurate and realistic revised prices for construction cost items. It was within the HACs discretion to credit the Developers experts testimony on his efforts to obtain updated prices and to accept the testimony of the Developers expert over that of the Boards expert. Where, as here, the determination is one of the credibility of witnesses and there is no question that there is substantial evidence to support an administrative agencys decision, a reviewing court may not substitute its determination of credibility for that of the administrative agency. The court must indulge all rational presumptions in favor of the validity of the HAC's determinations, including its choice between two fairly conflicting views, giving due weight to its experience, technical competence, and specialized knowledge. Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 415.
3. THE HAC DID NOT ERR IN THE ALLOCATION OF THE BURDEN OF PROOF TO PRESENT A PRIMA FACIE CASE WITH RESPECT TO COMPLIANCE WITH STATE AND FEDERAL REGULATIONS.
The Board argues that the HAC erred in failing to require the Developer to meet its burden of making out a prima facie case that the project, as proposed to be modified, would comply with federal and state regulations relating to noise, dust, and vibrations generated by blasting during construction. The Board points to the Pre-Hearing Order, which specifically imposes such a burden on the Developer. Pre-Hearing Order, p. 8, A.R., Vol. VI, p. 2563. The Pre-Hearing Order also imposed a related burden on the Developer to present a prima facie case that the Boards stated reasons of denial of the proposed modification relate to matters outside the scope of the proposed modification, pursuant to 760 CMR 56.05(11)(c). Pre-Hearing Order, p. 9, A.R., Vol. VI, p. 2564. That regulation provides in relevant part: Only the changes in the Project or aspects of the Project affected thereby shall be at issue in such hearing. In its decision, the HAC ruled that the Developer does not bear such a burden, and that the statement to the contrary in the Pre-Hearing Order misstates, or at least obfuscates, the burdens of proof in this case. Decision on Project Change, pp. 4, fn. 4, 15, A.R., VI, pp. 2603, 2614.
) (emphasis added). In the very next paragraph, the regulations on the issue of compliance with state or federal regulations indicate that the allocation of the burden will be permissive and of a limited nature. 760 CMR 56.07(2)(a)(2) (In the case of a denial, the Applicant may establish a prima facie case by proving, with respect to only those aspects of the Project which are in dispute (which shall be limited), in the case of a Pre-hearing Order, to contested issues identified in the pre-hearing order, that its proposal complies with federal or state statutes or regulations.) (emphasis added). Thus, the HAC correctly ruled that as a matter of law, the Developer did not have a burden to establish a prima facie case that the project will comply with federal and state regulations relating to noise, dust, and vibration.
However, by including the burden with respect to noise (neither side in this dispute appears to pursue arguments with respect to dust and vibration) the HACs Pre-Hearing Order, whether mistakenly or not, did purport to impose a burden of proof on the Developer to show that its proposal complies with federal or state law pursuant to 760 CMR 56.07(2)(a)(2). To the extent the HAC failed to address in its decision whether the Developer met this initial burden, such a failure was harmless error, because the record discloses that the Developer unquestionably met this burden by demonstrating that the noise levels generated by the modified project would be no greater than the noise levels generated by the originally approved project. The Developer presented evidence with respect to noise levels and the HAC made the factual finding that, the operations and the noise generated by rock removal for the modified development are no different from those for the development already approvedalthough construction will continue for twice as long. Decision on Project Change, p. 15, A.R., 2614. This was a finding that, in effect, the Developer had not only met its burden pursuant to 760 CMR 56.05(11)(c) to show that the denial related to matters outside the scope of the proposed modification (because there would be no increase in the level of noise), but also that the modified project would not violate applicable state and federal regulations. There is no question that there was sufficient factual support in the record for the HAC to make this finding. See, e.g., Pre-Filed Testimony of Marc C. Wallace, QEP, A.R. Vol. III, p. 1021; Rebuttal Testimony of John M. OConnor, A.R. Vol. IV, p. 1464.
4. THE BOARD DID NOT ERR IN CONCLUDING THAT IT HAD NO JURISDICTION TO ENFORCE STATE AND FEDERAL LAWS AND REGULATIONS.
In response to the Boards insistence that the Developer show that the construction operations for the modified project would comply with state and federal regulations regarding noise, dust, and vibration, the HAC ruled that it had no authority to override non-local regulations, and therefore had no jurisdiction to adjudicate whether the project would comply with such state and federal regulations. Consequently, the HAC noted, in a passage that could almost be considered more of an observation or statement of the existing law than a condition of its decision that the developer must simply comply with all state and federal requirements. Construction of the development will not go forward unless it is in compliance with those requirements. Decision on Project Change, p. 16, A.R., 2615. The HAC goes on to note that local officials may inspect the construction site and make appropriate referrals to state and federal officials. Id. The HACs observation (or condition) in its decision was an accurate statement of the law, and it accurately concluded that it did not have jurisdiction to usurp the jurisdiction of state and federal agencies that are empowered to enforce state and federal laws and regulations.
There is no showing that there are any local regulations with respect to noise, dust, or vibration that are any more stringent than the existing state and federal regulations. Therefore, the HACs decision in this respect is in accordance with its authority under Chapter 40B. It has long been held that it is unreasonable for a board to withhold approval of an application for a comprehensive permit when it could condition approval on the tendering of a suitable plan that would comply with State standards. Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 416. [T]he comprehensive permit scheme was designed to override local ordinances, bylaws, and regulations that impeded the development of affordable housing, not Statewide requirements set by the Legislature and State agencies. Dennis Hous. Corp., supra, 439 Mass. at 80. [T]he power of the board derives from, and is generally no greater than, that collectively possessed by [other local boards and agencies of the municipality enforcing municipal building regulations and bylaws]. Zoning Bd. of Appeals of Amesbury, supra, 457 Mass. at 756.
In Holliston, the Appeals Court upheld a Land Court determination that the HAC properly ruled that it could not adjudicate compliance of a project with state wetlands and environmental laws because they were not regulated under the towns zoning by-law and, therefore, were not properly before the HAC. Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 410. The Board attempts to distinguish Holliston because the environmental compliance of the project in Holliston would be reviewable pre-construction by the appropriate state authorities, whereas the modified project at issue here would only be subject to review for compliance with noise regulations during construction. This is a distinction, however, without any legal significance. In either circumstance, the HAC lacks jurisdiction to oversee or override state or federal regulations, but the proper authorities still have an opportunity to enforce those regulations should the need arise. Thus, it was appropriate for the HAC to simply note in its decision that the developer would be required to comply with state and federal regulations relating to noise, dust, and vibration, without requiring the developer to prove that it would do so in advance.
For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is DENIED, and the defendants cross-motions for judgment on the pleadings are ALLOWED.
[Note 1] The present appeal was actually filed twice, apparently inadvertently. Following transfer of the case from the Superior Court to the Land Courts Permit Session, the present matter was entered as No. 15 PS 000288 on July 28, 2015. The identical complaint, as transferred from the Superior Court, was also entered as No. 15 PS 000338 on August 31, 2015. The second-entered case, No. 15 PS 000338, being redundant, will be dismissed.


Justia US Law US Codes and Statutes Arkansas Code 2015 Arkansas Code Title 16 - Practice, Procedure, And Courts Subtitle 2 - Courts and Court Officers Chapter 13 - Circuit Courts Subchapter 7 - Enforcement of Fines § 16-13-702 - Immediate payment.
§ 16-13-702 - Immediate payment.
AR Code § 16-13-702 (2015) What's This?
(a) (1) When a court has imposed a fine, as described in § 16-13-701, the imposition of such a fine constitutes an order to pay the full amount of the fine in accordance with this subchapter.
(2) Following imposition of the fine, the court shall inform the defendant that full payment of the fine is due immediately and shall inquire of the defendant what arrangements he or she has made to comply with the court's order to pay the fine.
(3) Without utilizing the provisions of § 16-13-704, the court may allow the defendant a period of time, not to extend beyond the time of the close of the clerk's office on the following day, within which to return to the court and tender payment of the fine.
(4) (A) (i) If the defendant fails to appear as directed, the court shall issue an order of arrest.
(ii) The arrest order shall be carried out by the sheriff.
(B) The court may also, upon the defendant's failure to appear, utilize any of the enforcement mechanisms authorized by this subchapter.
(5) (A) If the defendant claims an inability to pay the fine, the court shall inquire into the defendant's ability to pay and shall make a determination of the defendant's financial ability to pay the fine.
(B) If the court finds that the defendant has the financial ability to make immediate payment of the fine in full, the court shall order him or her to pay the fine.
(C) Failure or refusal to pay as ordered by the court shall subject the defendant to imprisonment, as provided in § 16-13-703.
(b) (1) When a corporation is sentenced to pay a fine or costs, it is the duty of the person authorized to make disbursement from the assets of the corporation to pay the fine or costs.
(2) If such disbursements require approval of the board of directors, it is the duty of the board to authorize disbursements to pay the fine or costs.
(3) Failure to comply with the duties imposed by this subsection shall render the person or directors subject to imprisonment under § 16-13-703.


§ 29-1 Division of Purchasing established; purpose; scope.
§ 29-2 Purchasing Officer: powers and duties.
§ 29-3 Promulgation of rules and regulations of Division.
§ 29-5 Competitive bidding; Purchasing Committee.
§ 29-6 Conflicts of interest; acceptance of gifts and rebates.
§ 29-8 Authorization to use county facilities.
§ 29-9 Execution of joint public bidding contracts.
There is hereby established a Division of Purchasing in the Department of Administration, which shall be under the direction and supervision of the Business Administrator, who shall be designated the "Purchasing Officer."
The purpose of this article is to prescribe the manner in which said Division shall control the purchasing of materials, supplies and equipment for the Township.
To purchase or contract for all materials, supplies, equipment and contractual services needed by any using agency of the Township which derives its financial support from the Township, in accordance with purchasing procedures prescribed by this article and such rules and regulations as the Purchasing Officer shall adopt for the management and operation of the Division.
To purchase or procure for the Township the highest quality in materials, supplies, equipment and contractual services from the lowest responsible bidder meeting specifications.
To discourage uniform bidding and endeavor to obtain full and open competition insofar as possible on all purchases.
To sell or dispose of all obsolete or unusable personal property in accordance with state statute or resolution which may be adopted by the Township Council.
The Purchasing Officer is hereby authorized and directed to adopt such written regulations as may be necessary for the implementation of this article. He shall also prescribe and maintain such forms as he shall find reasonably necessary to the operation of this Division.
No officer or employee of the Township shall purchase materials, supplies, equipment or make contracts other than through the Division of Purchasing, except as may be provided in the regulations promulgated by the Purchasing Officer. Any purchase ordered or contract made contrary to the provisions hereof shall not be approved by the Purchasing Officer and the Township shall not be bound thereby.
All materials, supplies, equipment or contracts whose estimated aggregate value shall be in an amount in excess of $2,500 require formal competitive bidding pursuant to state statute.
All such formal public bids shall be received by the Township of Bridgewater Purchasing Committee. Said Committee shall consist of the Business Administrator, Director of Finance and the Department Director, or in such Department Director's absence, a division head in such department using the contract being bid. Personnel in the Division shall also serve as designated by the Purchasing Officer as Secretary to the Committee.
The Purchasing Committee shall review the bids and submit a written report within 10 days after receipt to the Township Council. Said report shall include the date of bid opening, names and addresses of those submitting bids, together with the amount bid, and the Committee's recommendations concerning the award of bid.
The Township Council shall award or reject bids under this section.
Any purchase order or contract within the purview of this article in which any officer or employee of the Township is financially interested, directly or indirectly, shall be voided.
The employees of the Township of Bridgewater are expressly prohibited from accepting, directly or indirectly, from any person, firm, company or corporation to which any purchase order or contract is or might be awarded, any rebate, gift, money or anything of value whatsoever, except where given for the use and benefit of the Township.
The Purchasing Officer shall have the authority to join with other units of government, including the state, county, Board of Education and other municipalities, in cooperative purchasing plans as stated in the Revised Statutes of the State of New Jersey when the best interests of the Township could be served thereby.
Purpose. The purpose is to adopt rules and regulations in accordance with N.J.A.C. 5:34-6.1 to establish a procedure for emergency purchasing pursuant to N.J.S.A. 40A:11-6. A department head, superintendent or the Director of Public Safety (hereinafter "the Township official") may utilize this section of the Township Code when an emergency affects the public health, safety or welfare of the Township of Bridgewater, requiring the immediate delivery of goods or performance of services.
A description of the condition that constitutes the emergency in accordance with N.J.A.C. 5:34-6.1.
A statement that the condition affects the immediate public health, safety or welfare.
All pertinent information concerning the emergent condition, such as date, time, location and such other facts describing the condition.
A description about why it is necessary to invoke N.J.S.A. 40A:11-6 in order to obtain the immediate delivery of the materials, supplies or the performance of the service(s).
The Township official shall provide the Council with the above certification within 24 hours of the date of the sworn certification.
Appropriation. After the Township official has certified to the Purchasing Agent the emergent condition, the Township Finance Director/Chief Financial Officer shall make an appropriation for the emergent condition.
Council ratification. At the earliest meeting after the appropriation, the Township Council shall pass on a resolution ratifying award of the emergency contract.
Township Official vacancy; Purchasing Agent vacancy. If a Township Official is unavailable, the Mayor, Township Administrator or such other senior departmental personnel shall fill the vacancy of the Township Official. If the Purchasing Agent is unavailable, then the Mayor or Township Administrator shall fill the Purchasing Agent vacancy to ensure that there are always appropriate individuals available to make such decisions, and prepare and sign the necessary certification.
Pursuant to the provisions of N.J.S.A. 40A:11-10 et seq., the Township of Bridgewater is hereby authorized to enter into contracts with the County of Somerset for the joint use by the Township and other municipalities in the County of Somerset of administrative services and facilities of the Office of the Purchasing Agent of the County of Somerset appropriate to the procurement of certain materials, supplies and equipment which may be determined to be required from time to time by the Township and which the Township may otherwise lawfully purchase for itself. The services and facilities of said Office of the County Purchasing Agent shall be provided without cost to the Township of Bridgewater.
The proper municipal officials of the Township of Bridgewater are hereby authorized and empowered to execute, on behalf of the Township, all such contracts with the County of Somerset for joint public bidding.


The Georgia Supreme Court has ruled that an uninsured motorist lawsuit against a known defendant and an unknown defendant can be brought in the county where the accident occurred. Carpenter v. McMann et al., S17G1894 (8/2/18).
The Georgia Constitution says, generally, that lawsuits must be filed in the county in which the responsible party resides. But, it also says that if there are two or more responsible parties who reside in different counties, the lawsuit can be filed in either of the defendants’ “home” counties.
In Carpenter, one of the (alleged) responsible parties left the scene of the collision and was therefore unknown. Lawyers and the courts label these unknown parties as “John or Jane Does.” Under Georgia uninsured motorist law, a lawsuit against a John or Jane Doe can be brought in the county where the collision occurred. What is a little unusual in Carpenter is there was one known defendant and one unknown defendant.
The question before the Georgia Supreme Court was whether the lawsuit should have been filed in the county where the known defendant resided instead of where the collision occurred. Reading the Georgia constitution and relevant statutory provisions together, the Court found that the plain language of drafted by the Georgia legislature permitted the injured party to choose the county where the collision occurred (via the unknown driver) and not the county where the known driver resided.
If you’re hurt by a police officer involved in a high-speed pursuit or county employee negligently driving a government truck, you must follow a complicated set of procedures to recover for your injuries. This is because the government and/or its employees are protected under the doctrine of sovereign immunity. Not closely following these procedures will cause you to quickly lose your claim on a technicality.
The blog deals with the very first requirement, which is sending an ante litem notice. An ante litem notice is a letter sent to the government entity that describes the details of the incident, explains why the government entity is responsible, and states the injuries sustained. In theory, an ante litem notice is required to give the government entity an opportunity to timely investigate the allegations. With few exceptions, failure to timely send an ante litem notice to the correct entity ends a claim for injuries.
Generally, claims vary by the type of government entity: for example, counties, cities/municipalities, state entities, or federal entities. Below is a quick overview of some basic aspects of ante litem notice requirements.
With respect to a county entity (for example, a county sheriff’s office), an ante litem notice must be presented within 12 months of the injury. Each county is set up a little differently, but generally notice should go to the county attorney and county board of commissioners. With respect to a city or municipality, an ante litem notice must be presented within six months of the injury. Notice is normally sent to the mayor and the city attorney. Ante litem notices to the State of Georgia must be presented within twelve months after the injury. The notice must be delivered to the Risk Management Division of the Department of Administrative Services as well as the government office that is the basis for the claim. Finally, claims against the Federal Government and/or its employees requires submitting a Form 95 administrative claim to the responsible federal agency within two years of the injury.
Even though in our 20 plus years of practicing law we’ve personally never known a government agency take any action in response to an ante litem notice, Georgia courts strictly apply these rules and they must be carefully followed.
Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.
Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.
At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.
In a recent dispute over where a wrongful death lawsuit should be tried, the plaintiff made the winning argument against a commercial trucking company. Natasha Blakemore as Mother of Natroya Hulbert v. Dirt Movers, Inc. et al., A17A1540 (January 11, 2018). The plaintiff argued that the case should be tried in the county where the injury took place, while the trucking company argued it had the right to remove the case to the county where its office was located.
The two statutes at issue were O.C.G.A. §§ 40-1-117(b) and 14-2-510(b)(4). O.C.G.A. § 40-1-117(b) is part of the Georgia Motor Carrier Act, which are the statutes that govern commercial motor carriers. That statute says an injured party who sues a motor carrier can bring the case in the county where the injury occurred regardless of where the motor carrier is located. In contrast, O.C.G.A. § 14-2-510(b)(5), which governs corporations, says that, regardless of where the injuries occurred, a corporation is entitled to have the case adjudicated in the county where it maintains its principal place of business.
Here, Dirt Movers, Inc. argued that O.C.G.A. § 14-2-510(b)(5) should apply even if venue was proper under O.C.G.A. § 40-1-117(b). The Court of Appeals disagreed. Holding that if venue was proper under both O.C.G.A. §§ 40-1-117(b) and 14-2-510(b)(4), which was true here, the plaintiff was entitled to bring her lawsuit in the county where the injuries occurred.
Nice try by the trucking company, but the case will go forward in the county where the injuries occurred.


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Under common law, burglary was the breaking and entering into the dwelling of another at night with intent to commit a Felony therein. Wisconsin Statute 943.10 has expanded upon that definition. Wisconsin legislators removed the requirement that entry must be through a broken passage, expanded the dwelling to include commercial buildings and other structures, expanded the time to any time of the day or night, and included an intent to steal (theft) as well as a an intent to commit a Felony.
A burglary occurs when a person intentionally enters any room within a structure used as a building or dwelling, an enclosed railroad car, an enclosed portion of any ship or vessel, a locked enclosed cargo portion of a truck or trailer, or a motor home or other motorized type of home or a trailer home, whether or not a person is living in the dwelling, with an intent to steal or commit a Felony therein and without consent of the person who has lawful possession of the dwelling.
The act of entering the structure must be intentional.
Evidence that the defendant walked around a private dwelling knocking on doors, then broke the glass in one door, entered, and when confronted offered no excuse, was sufficient to sustain a conviction for burglary. Raymond v. State, 55 Wisconsin 2d 482, 198 N.W.2d 351 (1972). The act of intentionally knocking, which then resulted in an entry was sufficient to prove burglary.
The burglar must have an intent to commit a Felony while in the burglarized structure. The intent can be to steal (a theft crime), or commit any Felony against a person or property (State v. O'Neill, 121 Wisconsin 2d 300, 359 N.W.2d 906 (1984)), and the jury need not determine which Felony was intended (State v. Hammer, 216 Wisconsin 2d 214, 576 N.W.2d 285 (Ct. App. 1997), 96-3084). While one cannot steal their own property, which was a point of argument for the O. J. Simpson visit to Las Vegas, the property must rightfully be theirs; otherwise, it is a theft. If the property is money, it must be the exact same dollar bills and coins (not in quantity, but by serial numbers such as those found on bills).
While intent to steal will not be inferred from the fact of entry alone, additional circumstances such as time, nature of place entered, method of entry, identity of the accused, conduct at the time of arrest, or interruption, and other circumstances, without proof of actual losses, can be sufficient to permit a reasonable person to conclude that the defendant entered with an intent to steal. (State v. Barclay, 54 WI 2d 651, 196 N.W.2d 745 (1972)).
Entry need not be forced, but it must be without consent of the person in lawful possession of the property. However, the state need not prove that the defendant knew that his or her entry was without consent (Hanson v. State, 52 Wisconsin 2d 396, 190 N.W.2d 129 (1971). A burglary is completed after a door is opened and entry is made, even if the burglar changed his mind and started to leave the scene before arrested (Morones v. State, 61 Wisconsin 2d 544, 213 N.W.2d 31 (1973). Once proof of entry has been made, the burden to show consent is upon the defendant (LaTender v. State, 77 Wisconsin 2d 383, 253 N.W.2d 221 (1977).
Consent has a shelf life, so to speak, and it can be terminated or ended unless otherwise provided by the person having the lawful authority to give consent. An employer gives consent to employees to enter the workplace during working hours. A key to the building facilitates that consent, but that consent is granted during working hours (e.g. from the time the business opens until the time the business closes) as provided by the employer. If an employee enters the building after hours with improper intent, he may expose himself to burglary charges (State v. Schantek, 120 Wisconsin 2d 79, 353 N.W.2d 832 (Ct. App. 1984)).
Entry into a place during the time when it is open to the general public is with consent. However, remaining in that place after hours when it is no longer open to the general public is not with consent. In Levesque v. State (63 Wisconsin 2d 412, 217 N.W.2d 317 (1974)), the court held the defendant's act of hiding in a false ceiling of the men's room, perfected by false pretenses and fraud, rendered an otherwise lawful entrance into a restaurant unlawful.
A person commits a burglary by entering premises with the intent of committing a Felony against a person or persons or against property while on the premises, regardless of whether the person's actions while within the premises constitute a new crime or the continuation of an ongoing offense. Felon in possession of a firearm is a crime against property or persons that may be an underlying Felony for a burglary charge (State v. Steele, 2001 WI App 34, 241 WI 2d 269, 625 N.W.2d 525, 00-0190).
A person convicted of a burglary is subject to the penalties provided for a Class F Felony (punishable by a fine not to exceed $25,000 or imprisonment not to exceed 12 years and 6 months, or both) if no person was present in the structure at the time of the burglary, or a Class E Felony (punishable by a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both) if a person was lawfully present.
If the burglar either was armed upon entry or armed himself during the burglary with a dangerous weapon or pepper spray (any device or container that contains a combination of oleoresin of capsicum and inert ingredients, but does not contain any other gas or substance that could cause bodily discomfort), then he can be charged with Burglary as a Class E Felony, and is subject to the penalties of a Class E Felony.
The opening or attempt to open any depository by use of an explosive is a Class E Felony.
If the burglar commits a simple battery upon a person who is lawfully present within the structure at the time of the burglary, it is a Class E Felony. If the battery upon another is more substantial than a simple battery (Substantial Battery, Aggravated Battery), then the burglar is subject to separate charges for battery (State v. Reynolds, 206 Wisconsin 2d 356, 557 N.W.2d 821 (Ct. App. 1996), 96-0265), and double jeopardy would not apply.
A burglary can occur without the property owner present while a robbery cannot.
Under Wisconsin Statute 939.72, it is illegal to possess burglarious tools. A person can be prosecuted for both burglary and possession of burglarious tools (Dumas v. State, 90 WI 2d 518, 280 N.W.2d 310 (Ct. App. 1979).
Attorney Michael (Mike) Rudolph is one of Wisconsin's leading criminal defense lawyers. If you are under investigation and facing criminal charges for Burglary or Possession of Burglarious Tools, please call (920-730-8533) Attorney Mike Rudolph right away. Time is of the essence, and it is critical you communicate with your lawyer as soon as possible.

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(B) acquired by a person from such eligible contractor for use as a residence during the taxable year.
(B) in the case of a dwelling unit described in paragraph (3) of subsection (c), $1,000.
(B) in the case of a qualified new energy efficient home which is a manufactured home, the manufactured home producer of such home.
(C) which meets the energy saving requirements of subsection (c).
The term "construction" includes substantial reconstruction and rehabilitation.
The term "acquire" includes purchase.
(B) meets the requirements established by the Administrator of the Environmental Protection Agency under the Energy Star Labeled Homes program.
A certification described in subsection (c) shall be made in accordance with guidance prescribed by the Secretary, after consultation with the Secretary of Energy. Such guidance shall specify procedures and methods for calculating energy and cost savings.
Any certification described in subsection (c) shall be made in writing in a manner which specifies in readily verifiable fashion the energy efficient building envelope components and energy efficient heating or cooling equipment installed and their respective rated energy efficiency performance.
For purposes of this subtitle, if a credit is allowed under this section in connection with any expenditure for any property, the increase in the basis of such property which would (but for this subsection) result from such expenditure shall be reduced by the amount of the credit so determined.
For purposes of this section, expenditures taken into account under section 47 or 48(a) shall not be taken into account under this section.
This section shall not apply to any qualified new energy efficient home acquired after December 31, 2017.
The date of the enactment of this section, referred to in subsec. (b)(2)(B), is the date of enactment of Pub. L. 109–58, which was approved Aug. 8, 2005.
The National Appliance Energy Conservation Act of 1987, referred to in subsec. (c)(1)(A)(ii), is Pub. L. 100–12, Mar. 17, 1987, 101 Stat. 103 . For complete classification of this Act to the Code, see Short Title of 1987 Amendment note set out under section 6201 of Title 42, The Public Health and Welfare, and Tables.
2013-Subsec. (c)(1)(A)(i). Pub. L. 112–240, §408(b), substituted "2006 International Energy Conservation Code, as such Code (including supplements) is in effect on January 1, 2006" for "2003 International Energy Conservation Code, as such Code (including supplements) is in effect on the date of the enactment of this section".
Subsec. (g). Pub. L. 112–240, §408(a), substituted "December 31, 2013" for "December 31, 2011".
2008-Subsec. (g). Pub. L. 110–343 substituted "December 31, 2009" for "December 31, 2008".
2007-Subsec. (c)(2), (3). Pub. L. 110–172 substituted "part 3280" for "section 3280" in par. (2) and in introductory provisions of par. (3).
2006-Subsec. (g). Pub. L. 109–432 substituted "2008" for "2007".
Pub. L. 115–123, div. D, title I, §40410(b), Feb. 9, 2018, 132 Stat. 150 , provided that: "The amendment made by this section [amending this section] shall apply to homes acquired after December 31, 2016."
Pub. L. 114–113, div. Q, title I, §188(b), Dec. 18, 2015, 129 Stat. 3074 , provided that: "The amendment made by this section [amending this section] shall apply to homes acquired after December 31, 2014."
Pub. L. 113–295, div. A, title I, §156(b), Dec. 19, 2014, 128 Stat. 4022 , provided that: "The amendment made by this section [amending this section] shall apply to homes acquired after December 31, 2013."
Pub. L. 112–240, title IV, §408(c), Jan. 2, 2013, 126 Stat. 2342 , provided that: "The amendments made by this section [amending this section] shall apply to homes acquired after December 31, 2011."
Pub. L. 111–312, title VII, §703(b), Dec. 17, 2010, 124 Stat. 3311 , provided that: "The amendment made by this section [amending this section] shall apply to homes acquired after December 31, 2009."
Section applicable to qualified new energy efficient homes acquired after Dec. 31, 2005, in taxable years ending after such date, see section 1332(f) of Pub. L. 109–58, set out as an Effective Date of 2005 Amendments note under section 38 of this title.


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A magazine columnist in Nigeria once wrote “If you want to die, join Peoples Death Party (PDP)”. He was actually making reference to the spate of killings, although not exclusively, but more rampant within the ruling People’s Democratic Party (PDP) in Nigeria. The killing of two gubernatorial aspirants in the Southwestern States of Lagos and Ekiti, both PDP gubernatorial aspirants, within three weeks of July and August 2006 further brought to the front burners the bane political assassination has brought to Nigeria’s fledgling democracy. Since the 4th Republic political took off in 1999, there have been many unresolved assassinations believed to be politically motivated. This development has again brought into focus the unfolding dangerous trend in politicking in Nigeria. High profile political killings are gradually becoming a potent tool used by Nigerian politicians to settle political scores. The list of persons who fell to the bullets of the assassins or narrowly escaped such includes Chief Bola Ige, Harry Marshall, Alfred Dikibo, Andrew Agom, Funsho Williams, Ayo Daramola and so on. In the period under review, the struggle for power went beyond mere politicking and assassination became a “continuation of politics by other means”. This paper will not focus on other cases of political violence that have become almost a daily occurrence in Nigeria. It focuses rather on cases of political assassination between 1999 and 2007.
Nigeria, like many other countries of the world usually undertake legal and judicial reforms as efforts geared towards their overall development programs. The reason for this is also quite obvious. Nigeria finds herself in a situation where her judiciary advance inconsistent case law and carry a large backlog of cases. The resulting implication is the eroding of individual and property rights and by implication, the stifling of the private sector and its growth. There is ultimately also, violation of human rights. Delay in justice delivery affects fairness and the efficiency of the judicial system. This is also acting as an impediment to the public’s access to courts, which, in effect, weakens democracy, the rule of law and the ability to enforce human rights or even economic interest.
Nigerian legal system is the presumption that a person accused of any crime is innocent until proven guilty . However, the continued incarceration of an accused person without speedy trial questions the claims to observance of fundamental rights of liberty and fair hearing .
Nigeria Plc v. Ayodare and Sons (Nig.) Limited was instituted at the State High Court in 1989 but was not finally disposed off by the Supreme Court until 2007 – a period of 18 years. The trial court gave judgment in Adisa v. Oyinwola in 1985 while the appeal was not determined by the Supreme Court until year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court. In addition, in Abayomi Babatunde v. Pan Atlantic Shipping And Transport Agencies Ltd &ors,  a matter that began at the High Court in Lagos on 18th April, 1988, was finally settled at the Supreme Court on the 20th day of April 2007.
The very negative effect of this type of situation is appreciated more when one realizes that it is now a fact that foreign investors are attracted to legal systems that are effective in dispensing justice speedily. Therefore, the effectiveness and speed of a judicial system also determine the economic performance of the country. Without an effective justice administrative system, development in all its ramifications, including meaningful legal protection of human rights will remain a wish. An effective justice delivery system is a non-negotiable necessity. It is a condition precedent not just for affluent and economically advanced societies and economies, but also of any developing society and economy like Nigeria.
The main aim and objective of the research is to evaluate the factors responsible for political killings and slow justice administration in Nigeria.
Administration of Criminal Justice Act 20015 and its implication for criminal trials in Nigeria. There is a need to create such awareness. In addition to this fact, with other reforms that have been made towards an effective justice administration in Nigeria, such as the passing into law of the Evidence Act 2011, there is a need to know how much have, or can really be achieved with such reforms, especially since they are both key to trials in court, whether criminal or civil.
As it relates to the Evidence Act 2011, although it has been in force for over four years, it is sometimes surprising to see legal practitioners and even members of the bench cite the repealed Evidence Act as the applicable law of evidence in our courts. For example, in the judgment delivered by the Rivers State Governorship Election Petition Tribunal sitting in Abuja on 24th October 2015, in Petition No. EPT/RV/GOV/04/2015 (Hon. Dr. DakukuAdolPeterside& Anor v. Independent National Electoral Commission (INEC) &Ors) (unreported), the tribunal consistently cited provisions of the repealed Evidence Act. There is therefore the need for consistent and focused study of its provisions by all persons involved in the justice sector in order to ensure its smooth application. Furthermore, it is the researcher‟s opinion that policy makers and members of the legislature have a positive duty to evaluate the effectiveness of reforms made so far. This should be done in order to see if the ideal behind such reforms has been actualized.
It is a fact that several factors outside the judiciary at the end of the day determine the effectiveness of a justice administrative system. The constraints or limitations preventing people from enjoying an effective justice delivery system are both within the formal justice system and outside it. It is the combined results of such constraints that affect the efficiency of justice administration in Nigeria. However, this research is limited to looking at the innovative provision and reforms of specific legislation and how they tend to actualize speedy dispensation of justice or efficient justice administration. The focus will include innovative provisions in The Administration of Criminal Justice Act (ACJA) 2015 and Evidence Act 2011. These reforms have specific and direct bearing to the pace, speed, or efficiency of trials before the courts, whether criminal or civil. Discussion is limited only to innovations contained in these identified reforms.
Nigeria 1999 (as amended), the Administration of Criminal Justice Act (ACJA) 2015, the Evidence Act 2011, as well as judgments of superior courts of record. Secondary source of data will include opinions and suggestions of experts in the area of research as expressed in textbooks, journals, paper presentations, and other platforms. The research will also adopt a teleological approach to research where as a researcher, personal experience is used to proffer or arrive at definite findings because of the researcher‟s personal experience as a legal practitioner.
The researcher had identified the concept of Legal Pluralism as a major challenge affecting the effectiveness of the justice administrative system in Nigeria. This exists because of the introduction of British laws into Nigeria to co-exist with the indigenous systems of customary and Islamic Laws, which has produced a tripartite system of law. Aguda, in his book titled “The Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century”, in proffering solution to this identified challenge, called for the teaching of Customary Law and Islamic Law in all our universities as part of subjects offered for basic degree in law (i.e. LL.B). The researcher disagrees with this position. There are several customary law practices of various communities, so how many of these should a lawyer or law student grasp? Even the Sharia or Islamic Law is administered in some jurisdictions as a variant of customary law, and in some other jurisdictions, as a distinct and separate system, while at the same time, almost completely ignored in other jurisdictions or ethnic groups. The researcher is of the opinion that a better approach is exploring the possibility of integrating the tripartite system of law and unifying the diverse systems of court. This by the way is long overdue.
The researcher disagrees with the position of the said authors. In the researcher‟s opinion, there is indeed the need to make explicit provision as to the power of the court to resort to common law rules of evidence in determining the admissibility of a piece of evidence that is not specifically dealt with in the Act. However, such silence in the said Act cannot be bases for the position that “the window for the application of common law rules of evidence in Nigerian courts has been closed”. It is indeed therefore very doubtful if the law maker intended to completely exclude the application of the common law rules of evidence on matters of admissibility of evidence especially when it does not contradict the Act, or where the Act is silent. In fact, in view of this silence, the decision of the apex court in Queen v. Itule and Rex v. Onitiri remains valid. The position of the court in these two cases is to the effect that Nigerian court could rely on such common law rules to admit a piece of evidence where the Evidence Act was silent on a particular subject-matter provided that there was nothing in the Act that explicitly rendered such evidence inadmissible.
Evidence Act 2011 provides that “A statement in any document marked “without prejudice” made in the course of negotiation for settlement of a dispute out of court shall not be given in evidence in any civil proceeding in proof of the matter stated in it”. In his paper presentation titled “The Evidence Act 2011-An Appraisal” , Hon. Justice Akinyemi noted that the well-established common law principle that a document marked „without prejudice‟ made in the course of negotiation or settlement of dispute shall not be admissible as evidence between the parties, has now being codified by Section 196 of the new Act.
This position is not entirely correct. From a literal interpretation of this section 196 of the Evidence Act 2011, the exclusionary rule will apply here only to statements contained in documents marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court. The implication here is that a document marked “without prejudice” which was not made in the course of negotiation for a settlement of a dispute out of court cannot be excluded pursuant to section 196 of the Evidence Act. Section 196 of the Evidence Act, 2011 has a limited application than both section 25 of the repealed Evidence Act and section 26 of the Evidence Act 2011 which both provides that “In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.” In any case, pursuant to section 26 of the Evidence Act 2011 (and even section 25 of the repealed Act), a document marked or not marked “without prejudice” would still be inadmissible in civil cases. This is because “In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.” Therefore, once the court can infer that the parties agreed together that evidence of it should not be given, or there is an express condition that evidence of it is not to be given, then it will be inadmissible. Marking a document “without prejudice” is not the only means to achieve this.
Technology (I.C.T) in enhancing the effectiveness of the justice administrative system in Nigeria. Patrick, (Senior Advocate of Nigeria), in his presentation titled „Speedy Administration of Justice, Which Way Forward‟ , made a very good case for the inclusion of technology in the judicial process as a means of ensuring speedy administration of justice in Nigeria. However, he did not elaborate on what specific type or types of technology can, or should be deployed. He also did not state how, or the areas of the judicial administrative process where such can be deployed. The researcher does justice to this aspect especially in analyzing the type of technology, the ways, and the specific areas in the justice administrative system in which such technologies can actually be deployed.
Provisions of The Administration of Criminal Justice Act (A.C.J.A) 2015” , Professor Akinseye-George, (Senior Advocate of Nigeria) , described as novel and commendable the provision of section 296 of the Administration of Criminal Justice Act (A.C.J.A) 2015.
According to him, it will address the problem of „holding charge‟. The researcher, with all due respect to the professor and Senior Advocate totally disagree with this position. As a matter of fact, the combined effect of section 293 to 296 of the said Act is nothing more than the given of statutory flavour to the ugly holding charge syndrome under the guise of “Applications for Remand”.
By virtue of these provisions, a suspect arrested for an offence which a Magistrate Court has no jurisdiction to try shall within a reasonable time of arrest be brought before a Magistrate Court for remand. The Court is then authorized to remand the suspect in prison custody if the Court is satisfied that there is probable cause to remand the suspect pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court. The remand order shall be for a period not exceeding fourteen days in the first instance, and the case shall be returnable within the same period.
Such order can be renewed for a further period of fourteen days on application in writing with good cause shown. After this period of 28 days and the suspect is still in custody, the Court may grant the suspect bail. However, the court may instead of granting the suspect bail, issue hearing notices on any of the authorities in Section 296(4) of the Administration of Criminal Justice Act, 2015, and adjourn the matter for a period not exceeding fourteen days with the suspect still remanded. At the return date, if the authority concerned requests for and shows good cause to another remand, the Court may remand the suspect for a final period not exceeding fourteen days for the suspect to be arraigned for trial before an appropriate court. At the end of this final period or if good cause is not shown by the said authority, the suspect shall be immediately released from custody.
 as expressed in section 36 (1) of the said 1999 constitution.
 Aguda, T.A. (1988) the Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century,Federal Government Printers.
 Arishe, G.O. &Oriakogba, D.O “The Evidence Act, 2011: Closing the window for the application of common law rules of evidence” (2013-June 2014) 2 Journal of Contemporary Law 151, 152.
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Court of Appeals of California, Second Appellate District, Division One.
Belli, Ashe, Ellison & Choulos, Belli, Ashe & Choulos, Melvin M. Belli, Vasilios B. Choulos and Kent A. Russell for Defendant and Appellant.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Russell Iungerich and Kent L. Richland, Deputy Attorneys General, for Plaintiff and Respondent.
In an indictment defendant Leary was accused of violating section 4530, subdivision (b), of the Penal Code in that on September 12, 1970, he unlawfully escaped from a state prison (California Men's Colony) in the County of San Luis Obispo. Prior to entering his plea, he made a motion "to dismiss and set aside custody," on the ground that the trial court did not have jurisdiction to try him. The motion was denied. In a jury trial he was found guilty. Upon his appeal from the judgment, he contends that the trial court did not have jurisdiction to try him, because he was abducted in Afghanistan, by agents of the United States acting under color of state authority, and was transported through other foreign countries [40 Cal. App. 3d 529] and returned to California, in violation of international law, treaties, and the Fourth Amendment of the Constitution of the United States.
Defendant had been in the state prison by reason of his having been convicted on March 16, 1970, in the Superior Court of Orange County, of violating section 11530 of the Health and Safety Code (possession of marijuana). He was sentenced, upon such conviction, to state prison for the term prescribed by law (6 months to 10 years) and he was remanded to the sheriff of that county for delivery to the Director of Corrections. He was delivered into custody of the Department of Corrections, and was confined to penal institutions at Chino and Vacaville.
On May 13, 1970, he was transferred to California Men's Colony, West Facility, in San Luis Obispo County, and was confined there until September 12, 1970. In that prison he was assigned to "Dorm 325, bed 7." About 8:15 p.m. on September 12, Officer Butterfield saw the defendant sitting on his bed (7) in the dormitory; and about 9:30 p.m. he saw the defendant in a corridor of the dormitory -- when defendant was passing him. At that time, defendant was wearing blue denim pants, a blue sweater, and white tennis shoes. Other clothing "available to him" was a blue denim jacket. About 11:40 p.m. while the officer was making "the 11:40 count," he noticed that "325, bed 7" was empty, and then he made "a check of the immediate area" to locate the defendant, and he searched the buildings and gardens, but could not find the defendant.
"In the name of the Father and of the Son and of the Holy Ghost, Ave Maria. Prison guards, listen. To cage living creatures is a sin against God, a crime against nature. Listen prison guards. You stand convicted in the court of history as criminals and as sinners.
"In the uniform of Athens you jailed Socrates.
"In the uniform of Rome you arrested Jesus Christ.
"In the uniform of Germany you caged 6,000,000 Jews.
"In the livery of Nixon and Reagan you have turned this land into a police state.
"Oh, prison guards, I pray that you will repent and reform. Open the gates of your hearts and be free. Break out. Follow me to freedom and love and laughter. Be free, prison guards, be free."
Under the mattress on defendant's bed, the officer found a towel that was stained by blue ink. About 5 a.m. on September 13, an employee of a gasoline station on highway 101 in San Luis Obispo found a blue denim jacket and blue denim pants in a trash can in the restroom of the station. He telephoned the California Men's Colony; and an officer came to the station and picked up the pants and jacket, which bore defendant's prison number. That officer also found blue ink on a cable that extended from inside the prison over a fence to a telephone pole outside the fence; and he found blue ink on the stepping spikes on the telephone pole.
About 16 months thereafter (Jan. 16, 1972) the Consul of the American Embassy in Kabul, Afghanistan, gave defendant's passport to Officer Burke, a special agent of the Federal Bureau of Investigation. The agent, who did not know that defendant was under arrest, entered an airplane at the Kabul airport on January 17, 1972. Thereafter on that day, the defendant and a woman (Joanna Harcourt-Smith) entered the airplane. The agent introduced himself to them, and they asked where the airplane was going. He replied that it was going to Paris. They asked for tickets, and he gave tickets to them. When the airplane was in flight, he told them that he had been advised by the Consul that "the passport had been seized due to prior revocation by the State Department." The agent gave defendant a State Department identity card which had been issued in lieu of a passport, and he told defendant that it was good for direct return to the United States. The agent did not arrest defendant, or place him in custody, or question him regarding the escape; nor did the agent make any arrangement for defendant to be on the flight.
The airplane went from Kabul to Tehran, Istanbul, Paris, Frankfurt, and London. The agent did not restrict the defendant or the woman from leaving the airplane at those places. At Frankfurt the woman expressed a desire to leave the airplane, and she could have left the airport terminal because she had a passport, but the defendant could not leave the terminal because he would have to pass through the "German passport control." Agent Burke did not prevent defendant from attempting to pass through the German passport control.
When the airplane landed in London, British immigration authorities asked defendant to accompany them to an office in order to determine [40 Cal. App. 3d 531] whether defendant wanted to request political asylum. Agent Burke did not restrain defendant from accompanying them. Defendant told them that he requested political asylum on "the basis of persecution that he had sustained in the United States." The immigration officials said that they would take the request under consideration and refer it to a higher authority. Defendant had further discussion with the officials, and one of them told him that his request had been turned down. Then defendant asked that he be sent to Algeria, Switzerland, or Austria. In response to that request, one of the British officials said that the British authorities understood that defendant had been ejected from those countries and therefore they did not have the right to send him to any of those places. Agent Burke did not prevent defendant from requesting asylum or from requesting that he be sent to any of those countries.
During the flight from London to Los Angeles the defendant conversed with Agent Burke, but the agent did not initiate any of the conversations, and did not question defendant about the charge of escape. In a conversation with the agent in the lounge of the airplane, when other persons were in the lounge, the defendant asked the agent whether he knew of "the situation surrounding his escape and how he had escaped." The officer replied in the negative, and the defendant said that he "had gone over the wire" and that later he had been picked up by his daughter and his son-in-law and was "driven to a gasoline station where he was picked up by the Weathermen organization who then took him the rest of his journey."
Appellant refers, in his brief, to testimony of Joanna Harcourt-Smith regarding the flight from Kabul to Los Angeles. That testimony was offered only on the question of "suppression of evidence" of defendant's confession (of escape) made to the agent in the lounge of the airplane. fn. 1 She testified, out of presence of jury, that when she and the defendant entered the airplane at Kabul, Burke identified himself as a police officer and showed defendant's passport to the defendant; the word "cancelled" was [40 Cal. App. 3d 532] on the passport; Burke told them to sit on the front seats; he did not sit with them; he engaged them in conversation several times during the flight, and defendant asked him to leave them alone; on the flight to Frankfurt she passed a note to other passengers, which note stated that Timothy Leary was being kidnaped and that he asked for assistance; when they arrived at Frankfurt, the defendant demanded that they be sent to a hotel; the demand was refused; Burke told them that the German police would not let them enter Germany; Burke and German officials escorted them to another section of the airport; defendant asked to see a doctor; when they arrived at the airport in London, several officers were waiting for them; defendant was attempting to get a lawyer during the time they were in London; defendant asked the officers for political asylum and religious asylum; and during the flight from Kabul to London the defendant "seemed like he didn't really care or realize what was happening."
Defendant's testimony (out of presence of jury, on issue of admissibility of his alleged confession) was in part similar to the testimony of Smith on that issue. He testified further that he had a valid passport in Kabul and that it was confiscated while he was in a line at the American Embassy in Kabul a few days prior to the day when he boarded the airplane; after his passport was confiscated, he was taken to "Central Police Headquarters"; he did not attempt to contact the American Embassy; the Kabul police held him in custody and took him to a "police hotel"; the cousin of the King of Afghanistan came to see him and told him that it was a national holiday, that the King and the officials were out of Kabul, and that he (cousin) would get a lawyer and see that Leary "had a hearing"; on the morning the airplane left Kabul, officials of Afghanistan told him he was to leave Afghanistan; he told them he would not leave without a hearing and until he got his passport back; they said that the Americans had his passport; and he was taken to the airplane.
The court ruled that evidence as to the alleged confession was admissible.
 Appellant contends, as above stated, that the trial court did not have jurisdiction to try him because he was abducted in Afghanistan by agents of the United States acting under color of state authority, and was transported through other foreign countries and returned to California in violation of international law, treaties, and the Fourth Amendment of the United States Constitution. He states that he agrees that there are many cases holding that persons abducted in violation of law may not allege that fact by way of a plea to the jurisdiction. He states, however, that the instant case involves an unpopular defendant who is "constrained to resist the kind of inertia that might stifle Appellant's claim in a mass of citations to cases totally distinguishable in law, in fact, and upon their underlying policies."
Ker v. Illinois (1886) 119 U.S. 436 [30 L. Ed. 421, 7 S. Ct. 225], is a case wherein it was held that forcible abduction of a person in a foreign country was not a sufficient reason that the person should not answer, when brought within the jurisdiction of the court which has the right to try him for an offense committed within the jurisdiction of the court; and that the abduction presented no valid objection to his trial in such court.
Appellant Leary asserts that the Ker case is "grounded upon the state of constitutional law as it existed in 1886" and that the advanced state in our country's legal and historical development "requires a brand new look at" the Ker case.
In the Ker case, the Governor of Illinois had sent a requisition to the Secretary of State of the United States for a warrant requesting extradition of the defendant Ker by the Republic of Peru from Peru to Cook County, Illinois. The President of the United States issued a warrant, directed to one Julian, as messenger, to receive defendant from the authorities of Peru, upon a charge of larceny, in compliance with a treaty. Julian went to Peru, but, without presenting the extradition papers to any officer there, or making any demand on the government for the surrender of Ker, forcibly arrested him, placed him on a ship, kept him a close prisoner until arrival of the ship at Honolulu, where he was transferred to another ship and taken to San Francisco. Then, pursuant to other extradition proceedings initiated by the Governor of Illinois, defendant was taken to Cook County, Illinois, where he was indicted, tried, and convicted of larceny. A contention on appeal in Illinois was that the trial court (in Cook County) erred in sustaining the People's demurrer to his plea to the jurisdiction of the court. The Illinois Supreme Court affirmed the judgment of conviction. The United States Supreme Court said (p. 444 [ 30 L.Ed. p. 424]): "The question of how far his forcible seizure in another country, and transfer by violence, [40 Cal. App. 3d 534] force, or fraud, to this country, could be made available to resist trial in the State court, for the offense now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court."
Recent cases have reaffirmed the rule in the Ker case.
In Frisbie v. Collins (1952) 342 U.S. 519, 522 [96 L. Ed. 541, 545-546, 72 S. Ct. 509], it was said: "This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."
In People v. Bradford (1969) 70 Cal. 2d 333, 344 [74 Cal. Rptr. 726, 450 P.2d 46], it was said: "It is no defense to a state or federal criminal prosecution that a defendant was illegally arrested or forcibly brought within the jurisdiction of the court. (See, e.g., Frisbie v. Collins (1952) 342 U.S. 519 [96 L. Ed. 541, 72 S. Ct. 509].)"
As to asserted rights under international law, it has been held (United States v. Sobell, 142 F. Supp. 515, 523, affd. 244 F.2d 520, cert. den., 355 U.S. 873 [2 L. Ed. 2d 77, 78 S. Ct. 120, 121]) that "seizure of a fugitive on foreign soil in violation of international law will not deprive the courts of the offending state of jurisdiction over the person of the fugitive when he is brought before them."
 As to appellant's asserted rights under the Fourth, Fifth, and Fifteenth Amendments, he argues, in substance, that the actions whereby he was abducted constituted illegal search and seizure; the abduction was "state action" which denied him due process of law; the revocation of his passport was an infringement upon his personal liberty; and he was denied his "fundamental right" under the Constitution to seek asylum in a foreign country. fn. 3 Under the above authorities, the trial court had jurisdiction to try the defendant on the charge of escape. There was ample evidence to support the verdict.
Lillie, J., and Hanson, J., concurred.
FN 1. Defendant's motion "to dismiss and set aside custody" for asserted lack of jurisdiction of his person was made before he entered his plea. The record does not show what evidence, if any, was presented at the hearing of that motion. In his brief, defendant-appellant uses the testimony of Harcourt-Smith (which was offered only on the motion to suppress evidence) as an evidentiary basis for his contention that the court lacked jurisdiction. When she (Smith) was called as a witness by the defendant, defendant's attorney said that her testimony was offered only on the question of suppression of evidence. Then defendant himself asked her questions and said that he was attempting to elicit in his line of questions whether his passport was illegally seized. The judge said that the line of questioning was not pertinent to the examination of her in that she was being examined only on the issue of admissibility of defendant's alleged confession; and that the question as to how the defendant got back to this country was not relevant to the issue of admissibility of the alleged confession.
FN 2. Other recent cases in which the rule in the Ker case has been followed are: United States v. Cotten (9th Cir. 1973) 471 F.2d 744, 748; United States v. Caramian (5th Cir. 1972) 468 F.2d 1370, 1371; State v. Stone [(Me. 1972) 294 A.2d 683, 693-696]; Huffman v. State (Mo. 1972) 487 S.W.2d 549, 553.
FN 3. It is not clear whether appellant's claimed denial of constitutional rights refers to his alleged confession, which he made during the flight from London to Los Angeles. In People v. Bradford, supra (70 Cal.2d at p. 344), it was said that it is no defense to a state or federal criminal prosecution that a defendant was illegally arrested or forcibly brought within the jurisdiction of the court (citing Frisbie v. Collins, supra). It was also paid (pp. 344-345): "If he can show that law enforcement officials exploited the period of illegal detention to obtain evidence utilized at trial, of course, he is entitled to have the evidence suppressed." In the present case the court heard evidence upon the motion to suppress evidence of the asserted confession, and denied the motion. In reviewing that determination, all factual conflicts must be resolved in the manner most favorable to the trial court's disposition of the motion (People v. Martin, 9 Cal. 3d 687, 692 [108 Cal. Rptr. 809, 511 P.2d 1161]), and the function of this court is to determine whether there was substantial evidence to support the trial court's findings. (People v. Waters, 30 Cal. App. 3d 354, 359 [106 Cal. Rptr. 293].) In the present case the trial court did not err in denying the motion to suppress evidence of the confession.

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