§ 130-1 Findings and purposes.
§ 130-3 Historic Preservation Commission.
§ 130-4 Powers and duties of the Historic Preservation Commission.
§ 130-5 Procedures for designation of landmarks and historic districts.
§ 130-6 Certificate of appropriateness.
§ 130-8 Hardship application procedure.
§ 130-9 Maintenance and removal of dangerous conditions.
§ 130-10 Enforcement; penalties for offenses.
§ 130-12 Conflicts with other provisions.
Editor's Note: This local law superseded former Ch. 130, Landmark and Historic Preservation, adopted 3-27-1984 by L.L. No. 1-1984, as amended.
The Town Board of the Town of North Salem finds and declares a matter of public policy that is desirable and necessary to provide for the protection, enhancement, preservation and maintenance of structures, districts or sites of historical, cultural and architectural significance, to promote cultural and educational advantages, to safeguard aesthetic values, to foster civic pride and to advance the health, in order to secure economic and commercial benefits, safety and general welfare of the residents of the Town of North Salem. The continuing presence of said structures, districts or sites is an essential element of the character and identity of North Salem. Historic landmark structures from various periods in American architecture may be viewed in North Salem, with many of the structures in their original settings.
The Town Board further finds and declares that the threat of demolition, disrepair or decay of historic structures and sites, the threat of construction of structures of inappropriate or poor quality of design in the exterior appearances and the threat of changes made to the exterior appearances of existing structures in historic districts have impaired or may impair the desirability of the immediate area and neighboring areas, have injured or may injure the stability and value of both improved and unimproved real property in such areas, have prevented or may prevent the most appropriate development of such areas and have threatened or threaten to destroy a proper relationship between the tangible value of property in such areas and the cost of municipal services provided therefor. Such developments threaten the economy and general welfare of the Town. To avert such injury, there is a public necessity to secure for the people of North Salem the benefits of this chapter.
To protect and enhance the historical, architectural, cultural, geological and archaeological heritage which is found within the Town of North Salem and is illustrative of the growth, development and character of our nation, our state and our Town.
To recognize and ensure the preservation of those elements of the Town's past which represent many and varied architectural and cultural achievements which cannot be duplicated or otherwise replaced.
To promote the use, reuse and conservation of historic, architectural and cultural structures, sites and districts as a means of providing enjoyment and unique educational and physical evidence of North Salem's past.
To protect and enhance the Town's attractions to residents and visitors.
To foster civic pride in those elements of the Town's past which give North Salem its unique character, its sense of orientation and civic identity and which sets it apart from other communities.
To stabilize and improve property values within the Town of North Salem by conserving and perpetuating the use and reuse of North Salem's historic, architectural and cultural structures, sites and districts.
The construction of any new improvement which changes the exterior appearance of any landmark or any structure within an historic district.
Any work which changes or will change the appearance, color, material or texture of the exterior of the structure, including but not limited to windows, doors, lights, signs, roof, trim, shutters, siding or columns.
A certificate issued by the Historic Preservation Commission indicating that a proposed change, alteration, relocation or demolition of a landmark or new construction within an historic site or district is in accordance with provisions of this chapter.
The substantial deterioration or the razing, removal or destruction of any structure or the obliteration of any natural feature.
Represents one or more significant periods or styles in the history and/or architectural and social development of the Town.
Has special character and/or special historical, architectural or cultural value which causes it to constitute an area or neighborhood distinct from surrounding portions of the Town.
Is united by past events or aesthetically by plan or physical development or location.
Has a unique character resulting from its architectural style.
Are associated with events that have made a significant contribution to the broad patterns of our history.
Are associated with the lives of persons significant in our past.
Embody the distinctive characteristics of a type, period or method of construction or that represent a significant and distinguishable entity whose comments may lack individual distinction.
Have yielded or may be likely to yield information important in prehistory or history.
Are part of the reconstruction when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan and when no other structure with the same association has survived.
Constitute a property primarily commemorative in intent if design, age, tradition or symbolic value has invested it with its own historical significance.
Represent a property achieving significance within the past 30 years if it is of exceptional importance or is unique with the Town.
Is of particular historic, cultural, scenic or architectural significance to the Town of North Salem and reflects or exemplifies elements of the broad cultural, political, economic or social history of the nation, state or Town.
Is identified with historic personages or with important events in the main current of national, state or local history.
Embodies a distinguishing characteristic or an architectural type valuable as representative of a period, style or method of construction.
Represents a work of a builder, designer or architect whose individual style significantly influenced the architectural history of the nation, state or Town.
That area surrounding a landmark, site or historic district (not necessarily encompassing the whole legal boundary of the property) needed to preserve the general aspect of the landmark, site or historic district.
The ordinary care and repair activity for any part of an improvement, structure or site in order to correct any deterioration, decay or damage or otherwise to restore to the condition prior to the occurrence of such deterioration, decay or damage and which is not an addition or alteration and which does not change the appearance of the exterior.
Repairs for which a building permit is required under Chapter 250, Zoning, of the Code of the Town of North Salem and/or the New York State Building Code.
Object, ruins, cemetery or natural object, geological formation or feature or parcel of land.
Any building, construction, sign, fence, wall, object, landscape modification or part thereof made by human endeavor constructed or installed upon real property, whether permanent or temporary, to be kept at the location of such construction or installation for a period of not less than 60 continuous days.
There is hereby created an Historic Preservation Commission (Commission).
The Commission shall consist of seven members and one ex officio member appointed by Town Board according to the Town Law.
Voting members shall own property in the Town of North Salem or reside in the Town of North Salem. When possible, at least one of the members shall be a registered architect and all members shall have an interest in historic preservation in North Salem and knowledge of the history of the area. New members may be selected from a panel of such persons nominated by the North Salem Historical Society. The Historian of the Town of North Salem shall be an ex officio, nonvoting member of the Commission. This brings the total of Commission members to eight.
Members shall serve for terms of five consecutive years. Members may serve for more than one term, and each member shall serve until a successor is appointed and qualified.
Vacancies shall be filled by the Town Board according to the Town Law for the balance of the incumbent's unexpired term. When a vacancy occurs, the Commission shall advise the Town Board of any particular requirements.
The Commission shall elect from its membership a Chairman and Vice Chairman annually.
The members shall serve without compensation but may be reimbursed for expenses necessarily incurred in the performance of their duties.
The Commission shall be served by a Secretary. The Secretary shall keep minutes of the Commission's proceedings, showing the vote of each member upon every question or if absent or if failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Commission shall immediately be filed in the office of the Commission and with the Town Clerk and shall be a public record in accordance with the rules provided in § 130-3B(8). Within 60 days of a vacancy, the Town Board shall designate a Secretary who need not be a member of the Commission. The Secretary may be a volunteer or a paid employee. The Commission may designate a temporary Secretary for a period not to exceed 60 days at the salary vote set by the Town Board.
The Commission shall adopt and publish its own rules of procedure in accordance with applicable law including the State Administrative Procedure Act, Open Meetings Law and State Environmental Quality Review Act. The Commission shall publish prior notice of date, time and place of meetings.
Editor's Note: See Public Officers Law § 100 et seq.
Four members shall constitute a quorum, and actions may be taken by vote of a majority of members present and voting, except that the affirmative vote of four or more members shall be required for the refusal to grant a certificate of appropriateness or to award a certificate of appropriateness with conditions for specific structural performance or other performance or other special conditions.
To designate landmarks and historic districts pursuant to § 130-5.
To hear and decide applications for certificates of appropriateness pursuant to § 130-6.
To report at least annually to the Town Board on the state of the historical, cultural and architectural resources in North Salem and to recommend measures to further effectuate the purposes of this chapter.
To collect and disseminate material on the protection, enhancement and maintenance of historical, cultural and architectural resources and techniques for preserving them.
To cooperate and advise all Town and any other federal, state or local government agencies regarding historically, culturally and/or architecturally significant structures and to serve as lead agency where appropriate.
To interpret this chapter and to adopt and promulgate regulations and procedures consistent with this chapter and other applicable laws as are necessary and proper for the effective performance of the duties herein assigned, including establishing application procedures for certificates of appropriateness as provided in § 130-6 herein and standards for preparing conservation guidelines for maintenance of designated landmarks and structures within historic districts.
To conduct surveys and maintain inventories of historic properties in the Town of North Salem of historical, cultural or architectural, geological and archaeological significance.
To seek advisory opinions and technical assistance from any municipal employees on any matters within the Commission's jurisdiction.
To obtain the services of qualified persons to direct, advise and assist the Commission within the limits of funds appropriated for the performance of its work, of grants and of any gifts and to obtain the equipment, supplies and other materials necessary to its effective operation.
To hear and record the testimony of any interested parties.
To maintain complete files and records with the Town Clerk, including the record of all hearings held before the Commission or before the Town Board under this chapter.
Designation. Any person may request the designation of a landmark or historic district by submitting to the Historic Preservation Commission (Commission) a completed application for such designation on a form furnished by the Commission. The Commission, in addition, may on its own motion initiate proceedings for the designation of any landmark or historic district. The Commission shall, in all cases, follow the procedures set forth in the New York State Environmental Quality Review Act.
Informational requirements. The application for designation shall contain information on building materials, structural system, related outbuildings and surroundings, historical and archaeological significance and the suggested delineation of a protective perimeter. The property owner shall be sent with the application of a copy of this chapter by certified mail with return receipt.
Notice. Notice of a proposed designation shall be sent by certified mail with return receipt to the owner of the property proposed for designation 15 days prior to the hearing, describing the property proposed and announcing a public hearing by the Commission to consider the designation. Once this Commission has issued notice of a proposed designation, no building permits shall be issued by the Building Inspector until the designation is or is not effected.
Hearing and record. The Commission shall hold a public hearing on each proposed designation. Interested persons shall be entitled to present their opinions, suggestions and objections at this public hearing. A list shall be prepared for each structure, site and district proposed for designation, specifying the locations, any popular names and a description thereof. This list shall be included in the notice of public hearing to be published in a newspaper of general circulation in the Town not more than 30 nor less than 10 days before such hearing is to be held. Completed applications for designations scheduled for consideration at a hearing shall be on file with the Town Clerk and available for inspections by interested persons during the regular business hours at least 10 days before such hearing.
Decision of Commission. After consideration of the application and all information brought forth at the hearing, the Commission shall determine within 21 days of the close of the hearing whether all or part of any proposed structure, site or district qualifies as a landmark or historic district, as defined in § 130-2 of this chapter. This determination of the Commission shall constitute a recommendation to the Town Board of the Town of North Salem.
Upon the Commission's recommendation of designation of the landmark site or historic district, § 130-6 of this chapter immediately becomes effective. At once upon recommending a designation, the Commission shall forward its recommendation for approval of the designation to the Town Board by certified mail with return receipt.
If the Historic Preservation Commission disapproves any application for designation, the proceeding and restrictions with regard to the proposed historic district or landmark shall terminate.
Town Board determination. The Town Board shall act to approve or disapprove the designation within 65 days of receipt of the Commission's recommendations. If the Town Board disapproves a designation, § 130-6 of this chapter will no longer apply to the subject structure, site or district. The Town Board may, at its discretion, call a further public hearing on any recommendation for designation. Such hearings, if called, shall occur within 30 days of receipt of the decision of the Historic Preservation Commission, and the Town Board decision shall be rendered within 65 days of the close of such further public hearing.
Notice of determination. If the Historic Preservation Commission disapproves any application for designation, the proceeding with regard to the proposed historic district or landmark shall terminate. If the Historic Preservation Commission approves an application for designation, the notice of such approval and of its transmittal to the Town Board shall be given to the Town Building Inspector, the Planning Board, the Zoning Board of Appeals and sent by ordinary mail and first class certified mail to any owner of record of such property. When the Town Board approves or disapproves a designation or if a designation becomes final because the Town Board did not act upon it within 65 days, notice of the landmark or historic district decision shall be given to the Town Building Inspector, Planning Board, the Zoning Board of Appeals and the Assessor and sent by certified mail with return receipt to owner(s) of record of the subject property(ies). When the subject property is designated as a landmark or historic district, notice also shall be given to the New York State Historic Preservation Officer and to the County Clerk with a declaration of covenants.
Town register. The Historic Preservation Commission shall maintain a complete list and map showing all designated historic districts and landmarks which shall be made public and distributed to all municipal agencies reviewing development applications and issuing building and housing permits and to the police. This list and map shall be known as the "Town of North Salem Register of Historic Places."
Conservation guidelines. Within 90 days following designation as a landmark, the Commission shall establish conservation guidelines for each landmark or historic district. The conservation guidelines shall promote the conservation, rehabilitation and use of structures, sites and districts within the Town and shall promote the special historic, architectural, community or aesthetic interest or value of the structures, sites and districts. Insofar as practicable, the conservation guidelines shall promote redevelopment of historic structures and compatible new development within historic districts. The guidelines shall not limit new construction within any historic site or district to any one period or architectural style, but shall seek to preserve the integrity of existing historic structures. The conservation guidelines shall take into account the impact of the designation of a structure, site or district on the residents of the affected area and the effect of the designation on the economic and social characteristics of the affected area.
Requirement for certificate. No person shall undertake any additions, alterations, repairs, replacement, new construction, demolition or relocation of structures, whether permanent or temporary, which affect the exterior appearance of a designated landmark or structure or any additions, alterations, repairs, replacement, new construction, demolition or relocation of structures, whether permanent or temporary, within a designated historic district without having first obtained a certificate of appropriateness (C of A). The certificate of appropriateness required by this section shall be in addition to any building, sign or other permit which may be required by any other Town ordinance, code, rule or regulation and shall be obtained before any other such permit is issued. All municipal agencies and officials responsible for such other permits shall refer persons whose proposed acts necessitate a certificate of appropriateness to the Historic Preservation Commission.
Procedure. Prior to the commencement of any work requiring a certificate of appropriateness, an application for such a certificate shall be filed with the Historic Preservation Commission. The application fee set by the Town Board in the Schedule of Fees shall accompany the application.
Complete applications for a certificate of appropriateness, when submitted to the Historic Preservation Commission (Commission), will be considered received at the next regularly scheduled meeting of the Commission.
The application may be made only by the owner of the real property; the contract vendee of the real property with written consent of the owner; or the tenant of the real property with written consent of the owner. The Commission shall declare its intent to be lead agency and make all decisions required in this regard by the State Environmental Quality Review Act.
Editor's Note: The fee is on file in the office of the Town Clerk.
Within 90 days of receipt of a complete application for a certificate of appropriateness (unless an extension is mutually agreed upon), the Commission shall determine whether to conduct a public hearing or waive a public hearing for good cause on the proposed change and shall determine whether the proposed change will be appropriate. In the event that a public hearing is held, notice of the same shall be published once in the official newspaper, not less than 10 days prior to the date thereof, and copies of the notice shall be mailed certified mail, return receipt requested, by the applicant to all property owners within 250 feet of the applicants property or to all property owners in the historical district in the event that such a district is formed at least 10 days prior to the date set for public hearing.
Properties which contribute to the character of the landmark and/or historic district shall be retained, with their historic features altered as little as possible.
Any alteration of the landmark shall be compatible with its historic character, as well as with the surrounding district.
New construction shall be compatible with the landmark and/or district in which it is located.
Visual compatibility with surrounding properties, including proportion of the property's facades, proportion and arrangement of windows and other openings within the facades, roof shape and the rhythm of spacing of properties on streets, including setback.
With respect to demolition, in whole or in part, the Commission shall consider approval of a certificate of appropriateness only if the building has been determined to be a public safety hazard or has suffered a catastrophic and irreversible loss of physical integrity.
Whether there is an historic loss to the site of the original location.
The reasons for not retaining the structure at its present site.
The proximity of the new location to the Town, including the accessibility to residents of North Salem and other citizens.
The probability of significant damage to the structure due to relocation.
If a structure is being moved on to a landmark's property or within an historic district, whether it conforms to applicable matters listed in § 130-6C(3) above.
If the Commission approves a proposed change, the Commission shall issue a certificate of appropriateness which shall specify the work to be done and any conditions or limitations necessary in order to realize the purpose of this chapter. In issuing such certificate, the Commission may prescribe any conditions which it deems necessary to carry out the intent and purpose of this law. A certificate issued pursuant to this section shall be based upon the proposed plans comprising the application or otherwise submitted to the Commission for official consideration prior to issuance of said certificate. Any variation from plans granted in a certificate of appropriateness is prohibited unless an amended certificate is issued in accordance with such procedures as the Historic Preservation Commission shall establish by rule or regulation.
Delayed certificate of appropriateness for demolition. With resect to an application to demolish any structure located in an historic district or landmark, the Historic Preservation Commission may issue a delayed certificate of appropriateness staying any demolition. Such certificate shall prohibit demolition during a period for up to 10 months from the date of application, and during that period no building or demolition permit may be issued for the subject landmark or structure within an historic district. The Commission and the applicant shall undertake serious and continuing discussion during this ten-month period for the purpose of finding a viable method to save such structure. During such period, the applicant shall postpone demolition of the structure and make no change in the structure. At the end of this ten-month period, unless there is underway a mutually agreeable method of saving the subject structure bearing a prospect of eventual success, the certificate of appropriateness will be either approved or denied.
Denied, delayed or conditional certificates of appropriateness. If the Commission determines that a certificate of appropriateness should not be issued, or that a delayed certificate should be issued or denied or that a certificate of appropriateness should be conditioned or limited in any way, the Commission shall notify the applicant, in writing, of such determination and the Commission's reasons therefor within seven days of said decision and shall file such notice with the Town Clerk.
Building inspector. The Zoning Enforcement Officer is empowered to enforce this chapter. Unless the action of the Historic Preservation Commission is reversed by a court of competent jurisdiction, the Town Building Inspector shall refuse to grant a building permit or sign permit or demolition permit or other permit in an historic district or involving a landmark where a certificate of appropriateness has been denied or where the grant of such permit is not within the terms and conditions of such certificate of appropriateness as has been granted.
Duration of certificates and permits. Any certificate of appropriateness and any permit to demolish a building issued pursuant to these rules and regulations shall expire of its own limitation 12 months from the date of issuance if the work authorized is not commenced by the end of such twelve-month period. Any such certificate and permit shall also expire and become null and void if such authorized work is suspended and abandoned for a period of 12 months after being commenced. Any period or periods of time during which the right to use any such certificate or permit is stayed pursuant to these rules and regulations or to any statutory or judicial rule or order shall be excluded from the computation of the 12 months.
Approved absent determination. Notwithstanding the foregoing, if the Commission fails to issue a certificate of appropriateness or notify the applicant of its determination not to issue a certificate within 90 days after the completed application is received or within such additional time period as the Commission and the applicant may agree, such application shall be deemed approved.
The property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible.
In deciding upon such application for removal, relocation, or demolition, the Commission may consider whether the owner has created his own hardship through waste and neglect, thereby permitting the property to fall into a serious state of disrepair.
Alteration. An applicant whose certificate of appropriateness for a proposed alteration has been denied may apply for relief on the ground of hardship. In order to prove the existence of hardship, the applicant shall establish that the property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible.
The Commission may hold a public hearing on the hardship application at which an opportunity will be provided for proponents and opponents of the application to present their views. Within 90 days of receipt of a complete hardship application, the Commission shall determine whether hardship exists.
All decisions of the Commission shall be in writing. A copy shall be sent to the applicant by certified mail with return receipt and a copy filed with the Town Clerk for public inspection. The Commission's decision shall state the reasons for granting or denying the hardship application.
Repairs for public safety. In any case where the Building Inspector may order or direct the construction, removal, alteration or demolition of any structure on a landmark site or in an historic district for the purpose of remedying conditions determined to be imminently dangerous to life, health or property, any person may comply with the Building Inspector's order without prior issuance of a certificate of appropriateness. The Building Inspector shall give the Historic Preservation Commission prior written notice of any such proposed order or direction. Except in extreme hazards threatening life, the Commission shall have the power to require that the work ordered by the Building Inspector be carried out so as not to change the exterior appearance where the danger may be abated without detracting from the exterior appearance.
Ordinary maintenance and repair. Nothing in this chapter shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature of any structure, whether a landmark or within an historic district or otherwise, which does not involve a change in design, material, color or outer appearance thereof.
The Zoning Enforcement Officer is empowered to enforce this chapter.
It shall be unlawful for any person, firm or corporation to construct, alter, add to, repair, move, demolish or change the exterior appearance of or maintain any building or structure or portion thereof which is a duly designated landmark or is located in a duly designated historic district in violation of any provision of this chapter or to fail in any manner to comply with a written notice, directive or order of the Historic Preservation Commission or the Building Inspector or to construct, alter or destroy any building or structure or part thereof in a manner not permitted by an effective certificate of appropriateness or certificate of delayed appropriateness.
Any person who shall fail to comply with a written order of the Historical Preservation Commission or Building Inspector within the time fixed for compliance therewith and any owner, building, architect, tenant, contractor, subcontractor, construction superintendent or his agent or any other person knowingly taking part or assisting in the violation of any of the applicable provisions of this chapter and any lawful order, notice, directive, permit or certificate made hereunder shall be punished by a civil fine of not more than $100. Each day that a violation continues shall be deemed a separate violation. A violation of the certificate of delayed appropriateness (i.e., demolition of structure) shall be punished by a civil fine of not more than $10,000. In addition to any fine imposed hereunder, the property owner may be required by a court of competent jurisdiction to restore the structure to its appearance prior to the violation to the extent it may be feasible to do so.
Counsel. The North Salem Town Attorney shall be counsel to the Commission and shall represent it in all administrative and judicial proceedings.
This chapter may be known as the "Historic Preservation Law of the Town of North Salem."
Nothing contained in this chapter shall be construed as authorizing the Commission to waive any regulation or laws relating to zoning and planning of the Town of North Salem. In exercising its powers and performing its functions with reference to an historic district or a landmark, the Commission may apply or impose conditions with respect to the construction, alteration, addition, repair, replacement, relocation or demolition of any structure or sign, and determinations which are more restrictive than those prescribed or made by or pursuant to the applicable regulations contained in any other applicable provisions of law.
Any person aggrieved by a decision of the Historic Preservation Commission relating to hardship or a certificate of appropriateness may, within 90 days of the decision, file a written application with the Town Board for review of the decision. Reviews shall be conducted based on the same record that was before the Commission and using the same criteria.
Any person or persons aggrieved by any decision or determination under this chapter may have the decision or determination reviewed by a special term of the New York State Supreme Court in the manner provided by Article 78 of the Civil Practice Law and Rules.


As the name of the hearing implies, an Identity Hearing is a proceeding for an accused to challenge the identity of the person in custody as being the same person named in a certified copy of an indictment, information, verified complaint, warrant, judgment, sentence or other document relied upon by a demanding state seek extradition of someone in an asylum state. In other words, the person in custody in the asylum state asks the judge to find he is not the person being sought. It’s not me! They got the wrong guy!
Summary in 60 Words or Less: An Identity Hearing is a proceeding whereby a person in custody, subject to being extradited to another county or state, asks a judge to determine that he is not the person being sought by the demanding state or county. It is a process to get a judge to declare the alleged fugitive is not the right guy or gal.
In comparing the identity of the person in the custody with the person wanted by the demanding state, the rules of evidence become a critical issue. Does the California Evidence Code apply so that authentication is required?
However, the prosecution usually argues that it does not apply in extradition proceedings, as other jurisdictions have held that formal rules of evidence to not apply in extradition proceedings. See, e.g., Munsey v. Clough (1905) 196 U.S. 364, 49 L.Ed 515, 25 S.Ct. 282; In re Mahan (Neb 1982) 319 NW2d 760, Commonwealth v. Rowe (Pa 1979) 398 A2d 1060; Shields v State (Md 1970) 263 A2d 565; State v. Rosati (RI 1991) 595 885; Smith v. Idaho (9th Cir. 1967) 373 F2d 149, 154.
If the California Evidence Code applies, then the official records hearsay exception (Evidence Code § 1530) probably would apply to allow the identity hearing judge to consider booking photographs of the accused in the demanding state and compare them to the individual held in California. Likewise, fingerprint records would probably be admitted, provided they (and the photographs) are submitted with a proper declaration from the custodian of records authenticating such as true and accurate records of the demanding state. See Evidence Code § 1401, 1452-1454.
Counsel for the accused being held can subpoena witnesses to testify, but the magistrate holding the hearing cannot require witnesses from the demanding state to be present. Penal Code § 1551.2. Defense counsel also could seek to elicit testimony from a fingerprint expert to opine whether the fingerprints from the demanding state match those of the person demanding the identity hearing.
It must be understood that once the judge decides that the prosecution had made a prima facie case of identity, the accused bears the burden by clear and convincing evidence that he or she is not the same person as demanded. Miller v. Debbeker (Colo 1983) 668 P2d 927; State v. Perrera (Fla 1983) 443 So2d 1016.
It also should be understood that the scope of the identity hearing is narrow. Whether the accused is guilty or innocent of the offense(s) charged in the demanding state may not be inquired into at this or any other stage of the extradition proceedings in the asylum state. Penal Code § 1553.2; In re Golden (1977) 65 Cal.App.3d 789, 135 Cal.Rptr. 512; see also California v. Superior Court (Smolin) 482 U.S. 400, 96 L.Ed 2d 332, 107 S. Ct. 2433; Michigan v. Doran (1978) 439 U.S. 282, 58 L.Ed 2d 521, 99 S. Ct. 530.


In accordance with Rule 5 of the Rules of Superintendence for the Court of Ohio, notice is hereby given of the adoption of the Local Rules of The Lucas County Common Pleas Court, Probate Division effective January 1, 2017.
It is ordered that the following are adopted as the Local Rules of the Court of Common Pleas, Probate Division. These rules are supplemental to the Rules of Superintendence and must be read in conjunction therewith. The Court of Common Pleas of Lucas County, Ohio, Probate Division adopts the following rules effective January 1, 2017.
Persons appointed by the Court pursuant to constitutional or statutory authority, rule of court, or the inherent authority of the Court shall be selected from lists of pre-qualified persons maintained by the Court subject to the exclusions as set forth by Sup R. 8(A)(1)(a)-(f).
Intangible factors, including the court's or judicial officer's view of a potential appointee's commitment to providing timely, cost effective, quality representation to each prospective client.
The Court will review Court appointment lists periodically to assure the equitable distribution of appointments.
Court Appointees will be paid a reasonable fee with consideration given to the factors set forth in Prof. Cond. Rule 1.5 of the Ohio Revised Code, Supreme Court rule, or the local rules of court relating to fees. Compensation of the Court appointees will be reviewed at least every five years to determine the adequacy of the compensation and the effect of the compensation upon the availability of court appointments.
Pursuant to Rule 9 of the Rules of Superintendence, the Court has adopted and implemented a Security Policy and Procedures Plan. This plan is confidential and is not available for public access.
Pursuant to Rule 26 (G) of the Rules of Superintendence for the Courts of Ohio, the Probate Division of the Court of Common Pleas, Lucas County, Ohio adopts the Court Records Management and Retention and schedules as set forth, and will be followed in conjunction with the Rules of Superintendence for the Courts of Ohio.
8:30 a.m. to 4:30 p.m. Monday through Friday except holidays. All pleadings requiring a new case number or payment of Court costs shall be filed by 4:15pm. Marriage applications shall not be accepted after 4:00 p.m.
Where an estate is opened for purposes of admitting the will only, or filing an estate tax return only, or both, and no further administration is contemplated, the attorney shall so advise the Court in writing at the time of filing.
Upon the filing of an application for the appointment of a fiduciary or the filing of a complaint or petition, the attorney of record or the applicant (if there is no attorney of record) shall certify that there is no related case on file in this Court. If there is a related case on file, the attorney or pro se applicant shall certify the number, character and attorney of record of the related case. This shall be done on a form in the clerk's office.
Upon the filing of an application for probate of a will, an application to appoint a fiduciary for a decedent's intestate estate or relief therefrom, or the application for appointment of a guardian, the deputy clerk shall certify that no will or later will is on deposit with the Court pursuant to R.C. § 2107.07, and no POA or writing nominating a guardian is on file with the Court.
It is the responsibility of every attorney of record or of each pro se fiduciary or applicant to advise the Court, in writing, and captioned in the particular matter, of any change in the mailing address of the attorney, the fiduciary, or the applicant. It is the responsibility of each attorney of record, pro se fiduciary or applicant to notify the Court, in writing and captioned in the particular matter, if a fiduciary dies, or moves out of the State of Ohio. Failure to comply with this rule may lead to the removal of the fiduciary and attorney of record and/or a disallowance of fiduciary and/or attorney fees or commission.
At the time application is made to the Court of a fiduciary, that fiduciary shall file in the court the name of the attorney (if any) who will represent the fiduciary and perform all legal services required of the fiduciary in all matters relating to the estate, trust, guardianship, or other proceeding. If the attorney is deceased, resigns or is no longer acting, the fiduciary shall promptly advise the Court in writing.
An attorney of record on a matter pending in the Probate Court who wishes to withdraw as counsel shall obtain leave of the Probate Court by filing a motion with the court, which may be set for hearing at the Court's discretion. If the attorney of record is deceased or is permitted by the Court to withdraw from the case, the fiduciary shall promptly designate a new attorney and advise the Court in writing.
Every filing shall be typewritten or computer generated. If filed by an attorney, every filing shall be prepared by the attorney or shall have endorsed thereon a certificate signed by the attorney certifying that the attorney has examined the pleading or other instrument and that it is correct and proper and shall obtain the original signature of the party submitting the pleading or other instrument. If filed by a pro se applicant, every filing must be properly completed to the best of the applicant's ability, in compliance with Ohio law and probate procedure. The Court may refuse all filings not so prepared or certified.
Every judgment entry submitted to the magistrate or judge for approval shall be typewritten or computer generated. All original signatures on any and all pleadings, etc., submitted to this Court by applicants, fiduciaries, and attorneys shall be, from this effective date, signed in ink. No pleadings shall be filed signed in pencil.
Every new case filed shall contain a new case information statement. The New Case Information Statement shall contain all information required, including, but not limited to a Certification of Related Cases, Certification of Deposited Wills, the Nature of the Case, a designation relating to the Citation of the Spouse, the Designation of an Attorney (if any), and a Statement of Permanent Address LCPC 1A - New Case Information Statement. The Applicant may also file a Confidential Disclosure of Personal Identifiers at this time LCPC 45D - Confidential Disclosure of Personal Identifiers .
Unless otherwise ordered by the Probate Court, all applicants for appointment as a fiduciary must complete a criminal record check in the manner and form prescribed by the Probate Court, except for (1) applicants who are attorneys at law currently registered with the Ohio Supreme Court, (2) state agencies, and (3) corporate fiduciaries LCPC RRCPF - Release for Record Check on Proposed Fiduciary .
As of this effective date, all Court costs shall be listed on the Probate Court website: www.lucas-co-probate-ct.org, and no matter pending before this Court shall be finalized by the Court until all costs are paid. It is recommended that the Court be telephoned ahead of time to verify Court costs.
A. For dates of death on or after 5-31-90, and before 6-23-94, every fiduciary (applicant/commissioner if the estate is relieved from administration) shall be required to file an affidavit of giving notice of the probate of the will within 90 days from the entry admitting said will to probate. The affidavit shall be supplemented by a copy of the form SC 1.0 - Surviving Spouse, Children, Next of Kin, Legatees and Devisees and waivers of notice SC 2.1 - Waiver of Notice of Probate of Will, affidavit of no notice or a copy of the notice sent for all heirs at law and legatees and devisees of the will.
A. For dates of death occurring on or after 6-23-94, and before 1-1-02, every fiduciary (applicant/commissioner if the estate is relieved from administration or other interested person) in testate administration shall be required to file a certificate of giving notice of the probate of the will SC 2.4 - Certificate of Service of Notice of Probate of Will within 90 days from the entry admitting said will to probate. The certificate shall be supplemented by a copy of the form SC 1.0 - Surviving Spouse, Children, Next of Kin, Legatees and Devisees and waivers of notice SC 2.1 - Waiver of Notice of Probate of Will, a copy of the notice SC 2.2 - Notice of Probate of Will sent by certified mail for all heirs at law and legatees and devisees of the will and the certified mail receipt for same.
A. For dates of death occurring on or after 1-1-02, every fiduciary (applicant/commissioner if the estate is relieved from administration or other interested person) in testate administration shall be required to file a certificate of giving notice of the probate of will SC 2.4 - Certificate of Service of Notice of Probate of Will within two months after the appointment of a fiduciary, or two months after the will is admitted upon the application of an applicant/commissioner if the estate is relieved from administration or other interested person, unless the Court grants an extension of time. The certificate shall be supplemented by a copy of the form SC 1.0 - Surviving Spouse, Children, Next of Kin, Legatees and Devisees and waivers of notice SC 2.1 - Waiver of Notice of Probate of Will, a copy of the notice SC 2.2 - Notice of Probate of Will sent by certified mail for all heirs at law and legatees and devisees of the will and the certified mail receipt for same.
B. Failure to file the certificate will forestall the commencement of the statutory period of time to contest the will and will delay the approval of an accounting or commissioner's report filed in said estate, and also be subject to citation and penalty provisions of R.C. 2109.31 of the Ohio Revised Code.
An application for the appointment of a Special Administrator pursuant to R.C. 2113.15 shall be filed in conjunction with an Application for Authority to Administer Estate SC 4.0 - Application for Authority to Administer Estate . The Court in its discretion may waive or modify notice requirements and may limit the Special Administrator's powers.
A. Upon application, the Court may appoint a suitable, disinterested appraiser. The Court maintains a list of approved appraisers from which the applicant shall request an appraiser, unless the applicant requests, and the Court approves, a special appraiser. The list may be found at www.lucas-co-probate-ct.org. An appraiser or broker shall not directly or indirectly purchase, acquire or negotiate the purchase or sale of any property that he or she appraises.
B. On its website, the Court shall maintain alphabetical lists of all such approved persons available to the general public in the selection of appraisers for filings in this Court. The Court may, from time to time, add to and delete from this list in its discretion. However, it is highly recommended that, prior to asking that a particular appraiser be appointed in a case, the attorney/applicant contact the individual appraiser first, in case the appraiser no longer is engaged in the practice.
C. Effective 1/13/2012, a formal appraisal of real estate is no longer required by law, and the county auditor's/AREIS value may be used. For dates of death prior to the above date, the county valuation may be used upon motion, on case by case basis. If the county valuation is not used, the Probate Court will not waive a formal appraisal. The Court reserves the right to investigate the value of any real estate reported on an inventory of a fiduciary and may require a secondary appraisal of same.
A. Insolvency hearings may be held in full administrations, reliefs from administration and guardianships (R.C. § 2111.24). Insolvency proceedings shall be commenced by the fiduciary (applicant or commissioner if the estate has been relieved from administration) filing a representation of insolvency SC 24.0 - Representation of Insolvency accompanied by a schedule of claims SC 24.4 - Schedule of Claims. The attorney of record shall indicate on the schedule of claims in the estimated payment column the amount of the proposed payment to each creditor. Computer generated or self-drafted forms are permissible. The clerk shall set a hearing on the insolvency on a notice form SC 24.1 - Judgment Entry Setting Hearing and Ordering Notice provided by the attorney. The attorney shall notify all creditors of said hearing by certified mail.
B. At the hearing, counsel shall provide copies of the Notice of Hearing on Representation of Insolvency and Schedule of Claims SC 24.2 - Notice of Hearing on Representation of Insolvency and Schedule of Claims sent to each creditor and proof of notice by copies of the certified mail returns. Further, proof of notice to creditors shall be evidenced by Counsel's submission of the Verification of Service, Notice of Hearing on Representation of Insolvency and Schedule of Claims SC 24.3 - Verification of Service Notice of Hearing on Representation of Insolvency and Schedule of Claims. Upon receipt of the foregoing documents, the Court will approve the insolvency on the journal entry SC 24.6 - Judgment Entry of Insolvency provided by counsel, making any necessary changes and attaching an amended form SC 24.4 - Schedule of Claims only if needed. The Court reserves the right to require counsel to serve additional notice to creditors or submit a drafted journal entry if necessitated by a particular situation.
C. In either situation, the estate may be relieved from administration with the creditors and amounts owed listed on the assets and liabilities form SC 5.1 - Assets and Liabilities of Estate to be Relieved from Administration. The attorney shall add language to the form that the estate is insolvent, and that the estate is proceeding under this rule. Creditors shall be paid in accordance with R.C. § 2117.25. It is suggested, as a courtesy only, that each creditor who has not received payment in full be notified accordingly by letter or otherwise; proof of such notification is not required.
D. This same exception applies in an estate where a full administration has been opened and the fiduciary has determined that the estate is insolvent. The fiduciary may either relieve the estate from further administration and proceed as set forth above or they may file the fiduciary's account indicating that the estate is insolvent and pay creditors pursuant to R.C. § 2117.25. It is once again suggested as a courtesy that the fiduciary notify creditors when applying this exception to the insolvency proceeding.
For estates, if the date of death is prior to January 1, 2002, the first account shall be due not later than nine months following the date of appointment of the fiduciary. All subsequent accounts must be filed on a yearly basis, unless the Court orders otherwise.
For estates, if the date of death is on or after January 1, 2002, the final and distributive account shall be rendered within six months after appointment of the fiduciary unless extensions of administration and filing of account are ordered by the Court. See also Local Rule 78.3.
An Account of Distribution shall be filed no later than ninety (90) days after the approval of a final account.
A Supplemental Final Account shall be filed no later than ninety (90) days from the date the estate administration is re-opened and an executor or administrator is appointed.
For guardianships, the first account shall be due not later than one year following the date of appointment of the guardian. All subsequent accounts shall be due on a yearly basis, unless the Court orders otherwise.
For trusts, the first account shall be due not later than one year following the date of appointment of the trustee. All subsequent accounts shall be due on a yearly basis, unless the Court orders otherwise.
In estates of decedents where R.C. § 2109.301(A) waives the filing of a partial account, the Administrator or Executor shall file a waiver annually at least seven (7) days before the date the partial account would otherwise be due SC 13.4 - Waiver of Partial Account. When applicable, written consents must accompany each waiver.
A motion to waive the guardian's partial account(s) by Court order pursuant to R.C. § 2109.302(B) shall be filed at least seven (7) days prior to the date the partial account(s) would otherwise be due.
With the exception of corporate fiduciaries subject to R.C. § 1109.16, no fiduciary shall be permitted to file any account without first paying outstanding court costs due, or having an adequate deposit on file. Corporate fiduciaries must comply with this rule within 30 days of filing an account.
B. Compensation for fiduciaries whose fees are based on a computation schedule or on a percentage of assets that are managed, must submit the written computation for said fees simultaneous with the filing of the account.
C. All accountings of fiduciaries shall comply with the accounting procedures used internally by the Lucas County Probate Court and shall be audited by the accounting staff prior to filing same to verify compliance thereto.
D. The Lucas County Probate Court shall publish notice of the hearing on the approval of the account of fiduciary in the Toledo Legal News and assess the publication fee accordingly. Waivers of notice of hearing are not required in the event of such publication. Notice by publication is not required if the fiduciary submits to the Court proof of service of the hearing on approval for all heirs in an intestate estate and all residuary beneficiaries in a testate estate and/or waivers of such service.
A. Parties under Legal Disability. In a land sale proceeding involving a party defendant who is under legal disability, namely minors, incarcerated persons, and adult incompetent persons, the Court shall appoint a guardian ad litem who shall be an attorney not associated with the attorney or law firm who filed the land sale complaint. The answer of the guardian ad litem shall set forth the facts involved in the sale of the real estate, the interests of the defendant who is under legal disability in the sale and recommendation to the Court as to what action is in the best interest of the defendant who is under legal disability. The Court shall have final approval for all fees submitted by the guardian ad litem.
B. Necessary Party Defendants. In all land sale proceedings the Auditor and Treasurer of Lucas County shall be made party defendants.
A. The Court will not accept for filing any guardianship for a minor where the only purpose of the guardianship is to establish a residency for school purpose, qualifying a minor for health/life insurance absent the written consent of the insurance company or to establish the placement for an adoption. The Court will not accept for filing any guardianship for an incompetent person where the sole purpose for the guardianship is to establish a no resuscitation code status for the proposed ward.
B. The Probate Court reserves the right to refer an applicant for guardianship of the person of a minor to the Juvenile Division of the Lucas County Court of Common Pleas. Should the Probate Court accept the application for filing, a home study will be required.
C. All guardians of an incompetent ward under the jurisdiction of the Probate Court who are in possession of any wills of their ward shall be required to deposit for safekeeping all of the wills of their ward in the Probate Court.
D. The Probate Court reserves the right to require any or all-supporting documentation to be attached to a request for expenditure of funds in any guardianship proceeding under the jurisdiction of the Probate Court.
E. All reports of guardians as required by R.C. 2111.49 SC 17.7 - Guardian's Report shall be accompanied by a statement of expert evaluation SC 17.1 - Statement of Expert Evaluation and shall be filed annually on the anniversary date of the appointment of the guardian. Failure to comply with this requirement may result in the removal of the guardian.Where a physician or clinical psychologist states on a Statement of Expert Evaluation SC 17.1 - Statement of Expert Evaluation that to a reasonable degree of medical or psychological certainty, that the mental capacity of the ward will not improve, the Court may dispense with the filing of subsequent Statements of Expert Evaluation when the guardian files subsequent annual Guardian's Reports LCPC 17.1D - Motion & Order to Dispense with Subsequent Statements of Expert Evaluation.
A.PROCESS FOR EMERGENCY GUARDIANSHIPS AND ORDERS.
Emergency guardianship and emergency orders should be used as a last resort in cases where there is no spouse, next of kin or attorney-in-fact to give consent, and no advance directives have been issued by the alleged incompetent.
The primary consideration when requesting an emergency guardianship or an emergency order is that the prospective ward is incompetent. A person is not incompetent solely because they refuse recommended treatment. It is also essential to determine that there is an emergency that will harm the ward. Issues of concern to health care providers or family members are not sufficient, in and of themselves, to warrant emergency measure. The nature of the harm to the ward must be immediate (within several hours) and significant. All available alternatives must be explored.
EMERGENCY GUARDIANSHIP: In most cases, the alleged incompetent will have an ongoing need for a guardianship, and the Emergency Guardianship Application should be filed at the same time and in the same case as the routine guardianship application. The Application may be submitted to the Court in writing or by fascimile transmission (with the original filed the following business day).
Upon the filing of an Application for Appointment of Guardian and Statement of Expert Evaluation, the Court may appoint an emergency guardian when the ward needs immediate attention to prevent significant injury to the person or estate of the incompetent or minor.
EMERGENCY ORDER: Where there is no guardian-applicant, the need for guardianship has not been fully determined, and the Court has detailed information regarding an emergency, the Court may issue an Order to health care providers to protect the physical and financial well-being of, or to prevent harm to, the minor or alleged incompetent. The Application for Emergency Order/Worksheet and the Statement of Expert Evaluation shall be filed with the court.
Additional medical or other information may be required by the court prior to granting either order.
If the court declines to grant an emergency guardianship or order, in its discretion the court may schedule the matter on an expedited basis.
If the court approves the request for an Emergency Order or an Emergency Guardianship the order shall issue and notice of the order shall be served as soon as possible on the ward or subject of the order.
PROCESS FOR RECEIVING, ADDRESSING AND FILING GUARDIAN COMMENTS AND COMPLAINTS.
Comments or complaints regarding the performance of guardians appointed by this Court may be submitted in writing via ordinary mail, fax, or electronic mailing to the court.
The court will provide a copy of the comment or complaint to the guardian who is the subject of the comment or complaint.
The comment or complaint shall be filed in the guardianship case, unless for good cause shown, and shall be reviewed and considered by the assigned magistrate for appropriate action. The Court may, in its discretion, set a hearing on the matter. Notice of the hearing shall be served to both the guardian, person who filed the complaint and any other parties deemed necessary by the Court.
The magistrate shall issue a written decision or order regarding the comment or complaint. The decision or order shall be filed in the guardianship case and a copy shall be served upon the guardian, the person who filed the comments or complaint, and any other parties as deemed necessary by the Court.
A roster of guardians for adults having ten (10) or more wards will be maintained by this Court under Case Number 64385 That list will be updated on or after January 1st of each year. Each guardian on the roster shall file their fee schedule annually by the 15th day of April which differentiates fees for guardianship work and legal work.
A. Prior to settling a claim, the attorney shall personally appear at the court to obtain preliminary approval of the completed Proposal for Minor Settlement LCPC 22 MSP - Minor Settlement Proposal.
B. Rule 67 of the Rules of Superintendence for the Courts of Ohio shall apply to all settlements under $25,000.
C. When the minor and parents are unrepresented by counsel, the attorney drafting the pleadings and other instruments shall be responsible for depositing the funds and for providing the financial institution with a copy of the Entry Dispensing With Appointment Of Guardian And Ordering Deposit LCPC 16A - Entry Dispensing with Appointment of Guardian and Ordering Deposit. This attorney shall obtain a Verification of Receipt and Deposit SC 22.3 - Verification of Receipt and Deposit from the financial institution, containing the bank official's original signature, and file it with the Court within 7 days of the approval of the Entry, as well as the Report of Distribution and Entry SC 22.4 - Report of Distribution and Entry Minor's Claim ,which is due within 30 days of the approval of the Entry.
The Court requires that the attorney, prior to settling a claim, personally come to the Court to obtain preliminary approval of the settlement and distribution of the proceeds of the claim from the Court LCPC - Proposal for Wrongful Death Settlement.
A. Attorney fees allowed as part of the expense for administering a decedent's estate, a trust or a guardianship, shall be based on actual services performed, the novelty and difficulty of the problem involved and the responsibility incurred by the attorney in relation to the amount of the assets. No retainer fees are permitted. Attorney fees and fiduciary fees for the administration of estates shall not be paid until the final account is prepared for filing unless otherwise approved by the Court upon application and for good cause shown. Attorney fees and fiduciary fees for services performed in connection with civil complaints shall not be paid until the matter is finalized unless otherwise approved by the Court upon application and for good cause shown.
B. Except as provided in paragraphs (C), (D) and (E) below, an application, signed by the fiduciary, LCPC 13A - Application and Entry Allowing Fees, must be filed for allowance of all attorney fees. Each application shall set forth: 1) an itemized statement of the services performed; 2) the date services were performed; 3) the time spent rendering the services; 4) the average rate charged per hour. If additional fees are claimed for extraordinary or unusual services, the application shall set forth details.
C. When Counsel and an Executor or Administrator have entered into a written contract for legal services to be performed for administering a decedent's estate, and an application to enter into that agreement has been filed with the Court LCPC 13B - Application to File Attorney Fee Contract no later than three months after the appointment of the fiduciary without relief from the Court, no application need be made for the allowance unless counsel intends to receive fees prior to the close of the administration of the estate [See Local Rule 71.1(A)]. Contracts must set forth the method of calculation.
D. When payment of the attorney fee is included in the final account filed by the fiduciary, who is also the sole beneficiary of a solvent estate, no application need be made for the allowance. Counsel shall inform the Court when this circumstance exists by making a statement to that effect in the final account.
E. Any attorney fee, fiduciary fee or guardian's compensation based on a computation on the value of the assets in an estate involving real estate shall include the appraised value of the real estate listed in the inventory if the real estate is transferred and the sale price of the real estate if sold.
2 1/2% of the balance thereof.
If, in reliance on this paragraph, no application for attorney fees is filed, counsel shall complete LCPC 13C - Computation of Attorney Fees (Pursuant to Local Rule 71.1(A) , and attach it to the estate's final account.
I. Application for attorney fees for services rendered to guardians and trustees in setting up the guardianship or trust in the probate court may initially be made after the inventory is filed with the court. Thereafter, application may be made annually upon the filing of the account.
J. Ohio law does not permit a commissioner appointed by the Court in a release from administration to take a fee/compensation for services performed, as a commissioner is not a fiduciary under Ohio law.
Unless otherwise provided by law or ordered by the Court, a guardian may charge a fee for ordinary services in an amount computed in accordance with the following schedule during each accounting period.
A. Excluding income from real estate, 4% of the first $3,000 of income, and 3% of the balance in excess of $3,000; and 4% of the first $3,000 of expenditures and 3% of the balance in excess of $3,000.
B. If the guardian manages real estate, a fee amounting to ten percent (10%) of gross rental real estate income may be allowed. If the guardian receives net income from real estate actively managed by others, the guardian shall treat such net income as ordinary income.
C. $2.50 per thousand for the first $100,000 of fair market value of the principal; $2.00 per thousand on the next $300,000 of fair market value of the principal; $1.50 per thousand of the fair market value of the balance.
D. A minimum annual fee of $250.00 will be allowed in each guardianship or conservatorship.
E. Unless otherwise provided by law, the order of the Court or limitation by the conservatee, a conservator may charge for ordinary services an amount computed in accordance with the above schedule during each accounting required by statute or Court Rule.
The trustee may charge a minimum fee of $1000 annually.
A separate fee, based upon time expended, may be charged for the preparation and filing of fiduciary income tax returns. This fee may not exceed $500 except for just cause shown.
B. For the purpose of computing the trustee's compensation as herein provided, the fair market value of the principal of the trust property shall be determined by the trustee as of a date, determined by the trustee, such date to commence during the calendar quarter of the original receipt of trust property and each anniversary date thereafter. At the option of the trustee, fee valuations may be made on a quarterly basis, each valuation to be coordinated with the original annual valuation date as selected by the trustee. If this option is selected by the trustee, the trustee must continue to compute such trustee's fee on the quarterly valuation basis, unless upon application to the Probate Court, a change in fee valuation method is allowed.
C. Additional compensation for extraordinary services may be allowed upon application. The Court may require that the application be set for hearing and notice thereof be given to interested parties in accordance with Civil Rule 73(E). The notice shall contain a statement of amount of the compensation sought.
Where all the interested parties have consented in writing to the amount of the co-trustees' compensation and the consent is endorsed on the co-trustees' account or evidenced by separate instrument filed therewith.
A. For purposes of this rule a corporate fiduciary shall be defined as a bank or trust company authorized to conduct a trust business under the laws of the State of Ohio or of the United States.
The corporate fiduciary may charge a minimum fee of $2500 annually.
C. For purposes of computing the trustee's and guardian's compensation as herein provided, the fair market value of the principal shall be determined on a quarterly basis.
D. Additional compensation for extraordinary services may be allowed upon application. The court may require that the application be set for hearing and notice thereof be given to interested parties in accordance with Civil Rule 73(E). The notice shall contain a statement of the amount of the compensation sought.
A. The Lucas County Probate Court Adoption Procedures are hereby adopted by reference hereto. Copies are available at the Probate Court.
B. If a birth parent requires counseling prior to or after the birth of the child, the cost of counseling shall be the responsibility of petitioners, up to the amount of $500.00.
C. Notice on the adoption petition to birth parents must be by personal service.
Pursuant to Rule 53 of the Ohio Rules of Civil Procedure, the Probate Judge may assign any pending matter before the Court to a magistrate. This rule shall serve as an order of reference for any matter so assigned.
Within forty-five (45) days after the answer date, unless otherwise requested by the parties, the case shall be set by the Court for a pre-trial conference.
Notice of the pre-trial conference shall be given to all counsel of record, or parties if there is no counsel of record, by the Court not less than fourteen (14) days prior to the conference. An application for continuance of the conference shall be in writing and filed with the court in a timely manner.
c) A definite date for filing of all motions which date shall not be later than seven (7) days before the final pre-trial. The date for the final pre-trial shall be set by the Court and shall be held approximately one week prior to the trial.
f) No motions shall be heard after the final pre-trial without leave of Court and without good cause being shown.
g) The trial date shall not be changed nor shall the trial be continued without order of the Court and after showing of good cause.
h) The Lucas County Probate Court may refer any civil action or proceeding that is within the jurisdiction of the Probate Court for dispute resolution, which shall include, but is not limited to, mediation.
i) The selection of the mediator, fees for mediator, and source of payment for mediator fees shall be within the sole discretion of the Probate Court Judge. Payment for any additional expenses associated with the resolution of disputes must have prior approval by the Probate Court. This Court shall follow mediation procedures as required under Ohio Sup. R. 16(B) (1).
Failure to appear for this conference could result in the dismissal of the land sale complaint pursuant to Civ. R. 41(B)(1).
The statutory time for filing of an account (R.C. § 2109.30 and R.C. § 2109.301) shall be adhered to and the citation procedure (R.C. § 2109.31) shall be utilized if necessary to gain compliance.
Adequate statutory provisions exist to control timeliness of filings; however, each case shall be reviewed annually.
Adequate statutory provisions exist to control timeliness of filings; however, each case shall be reviewed annually. Pursuant to revisions of the Ohio Trust Code (Chapter 58) that came into effect 1/13/2012, all "petitions" for modifications or terminations of trusts must be filed as complaints, with party plaintiffs and defendants.
All motions filed in this Court in a civil action or contested matter shall be accompanied by a memorandum stating the grounds and citing the authorities relied upon. Opposing party must file a responsive pleading on or before 14 days after the date of service as set forth on the certificate of service attached to the served copy of the motion or be deemed untimely.
The original movant shall serve any reply memorandum on or before 7 days after the date of service as set forth on the certificate of service attached to the served copy of the response memorandum. The motion shall be deemed submitted to the Court for decision unless the Court orders a hearing or a prior written request for oral hearing has been filed and approved by the Court.
The jury management plan for this Court shall be the same as the jury management plan set forth in Local Rules of Practice and Procedure for the General Division of the Lucas County Common Pleas Court, except to the extent such rules would be clearly inapplicable, and shall be consistent with the Trial Court Jury Use and Management Standards as set forth in the Ohio Rules of Superintendence, Appendix B.
A. Requests for extension of time LCPC 1B - Application to Extend Time for the filing of an account, inventory or commissioner's report may be submitted to the Court by facsimile without the requirement of filing a hard copy of same.
B. The probate court reserves the right to require the consent of the beneficiaries on any request for an extension of time.
C. Any request for a continuance of the hearing on a citation for removal of fiduciary shall be by motion.
A. In every full administration, relief from administration, and no-administration estate, each certificate of transfer must be requested by the filing of an application/entry, and the certificate of transfer SC 12.0 - Application for Certificate of Transfer & SC 12.1 - Certificate of Transfer.
B. No certificate of transfer SC 12.1 - Certificate of Transfer shall be issued by the Court unless the legal description listed on the certificate is the exact duplicate of that listed on the fiduciary's inventory excluding those certificates issued when an estate is relieved from administration. Whenever a certificate of transfer is issued by the Court, and it is later discovered that it is not needed or was issued in error, it shall be the responsibility of counsel to move the Court to cancel same; and where possible, tender any issued, but unrecorded, documents back to the Court. Any request to correct a certificate of transfer shall be made by an "Application for Amended Certificate of Transfer".
C. A request for a duplicate certificate of transfer may be made by an "Application for Alias Certificate of Transfer".
A monetary deposit is required for personal service upon each nonresident of the county or state. Please call the Court at 419-213-4775 or consult the Court website at www.lucas-co-probate-ct.org for costs.
The Lucas County Probate Court shall publish notice of the hearing on the approval of the inventory of fiduciary in the Toledo Legal News and assess the publication fee accordingly. Waivers of notice of hearing are not required in the event of such publication. Notice by publication is not required if the fiduciary submits to the Court proof of service of notice of the hearing on approval for any person interested in the decedent's estate and/or waivers of such service.
A. No expenditures may be made without prior Court approval.
B. Bond shall be posted unless all personal property belonging to the trust is deposited in lieu of bond pursuant to Ohio R.C. § 2109.13, or the trustee is exempt from bond under Ohio R.C. § 5807.02.
C. The Trustee(s) shall make and file within three months after registration of the Trust with the Court a full inventory LCPC 25.4 - Trustee's Inventory of the real and personal property belonging to the trust, its value, and the value of the yearly rent of the real property.
D. Annual accounts shall be filed LCPC 25.5A - Trustee's Account.
E. The Trustee(s) shall invest pursuant to the Ohio Uniform Prudent Investor Act as set forth at Chapter 5809 of the Ohio Trust Code.
Prior to the appointment of a fiduciary, authority to open a deposit box shall only be granted to an attorney at law licensed to practice law in the State of Ohio who has been appointed by the Court as commissioner to report on the contents of a safe deposit box LCPC 2.8 - Application for Appointment of a Commissioner to Report on the Contents of a Safe Deposit Box. The special commissioner shall file the report LCPC 2.8RPT - Report on Contents of Safe Deposit Box as required by law.


text:
NASHUA RIVER PAPER COMPANY vs. EDWIN P. LINDSAY.
Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & JENNEY, JJ.
Waiver by the plaintiff, in an action for breach of a warranty of the quality of goods sold to the plaintiff by the defendant, is an affirmative defence which should be alleged in the answer, and it is not open under an answer of general denial.
(2) The judge erroneously opened the defence of waiver.
It was stated that, while it was not necessary on the record in the action above described to decide whether a finding of a voluntary relinquishment of his known rights against the defendant for breach of warranty of quality would have been justifiable on the evidence on the record before the court if that defence properly had been pleaded, there was grave doubt whether such a finding would have been warranted.
(4) Upon the record, the exception above quoted presented no question of law for this court.
CONTRACT, with a declaration in three counts, only one of which, alleging a breach of warranty described in the opinion, now is material. Writ dated March 20, 1919.
The pleadings are described in the opinion. The action was heard by an auditor and, upon the auditor's report, by McLaughlin, J., without a jury, who found for the defendant. Material evidence, findings by the judge and exceptions by the plaintiff are described in the opinion.
R. G. Dodge, (R. S. Wilkins with him,) for the plaintiff.
T. W. Proctor, (R. W. Nason with him,) for the defendant.
breach, but apparently assumed their correctness. See Leonard v. Carleton & Hovey Co. 230 Mass. 262, 264. He found that the pulp shipped to the plaintiff by the defendant "was received and accepted by the plaintiff and manufactured into paper, which it put upon the market as No. 1 Kraft paper, and represented and sold as such through the agency of the defendant, its selling agent." The conclusion of the finding is that "In view of all the circumstances in the case, the relations of the parties and their written correspondence, and of all the evidence, I am satisfied that if there was any breach of warranty on the defendant's part the plaintiff waived it, and I find for the defendant."
The plaintiff excepted to the rulings (1) that the defendant was not liable, (2) that the fact that the plaintiff complained to the defendant of the quality of the pulp was not sufficient notice of the breach of warranty, and (3) that it was necessary for the plaintiff to give the defendant reason to understand thai it intended to hold him to damages.
the ground of waiver when his attention has not been called to that defence by the answer unless clearly the trial has been conducted as if it had been properly pleaded. A judge cannot open such a defence at the conclusion of the trial without the express consent of the parties. Plummer v. Boston Elevated Railway, 198 Mass. 499, 516. Elkins v. Boston & Albany Railroad, 115 Mass. 190, 201. Commonwealth v. Hassan, 235 Mass. 26, 32.
There is grave doubt whether on this record there is evidence sufficient to support a finding of waiver. The plaintiff, although an experienced paper maker, was ignorant as to the manufacture of that variety and quality known as Kraft, and appears to have depended in no small measure upon the advice of the expert defendant. Whether it knew, until the final break in its business relations with the defendant, that its difficulties in the manufacture of Kraft were due to the poor quality of the pulp sold to it by the defendant arising from a breach of his warranty of quality, was a question of fact requiring careful discrimination in the weighing of testimony and the inferences to be drawn therefrom. The mere acceptance of the pulp, manufacture of it into paper and the sale of the paper (as the judge rightly ruled) would not prevent the plaintiff from recovery for breach of warranty, provided it gave to the defendant notice of the breach within a reasonable time after it knew or ought to have known of such breach. Sales act, St. 1908, c. 237, s. 49, now G. L. c. 106, s. 38. It is not necessary to decide whether a finding of a voluntary relinquishment of its known rights against the defendant for breach of his warranty of quality would have been justifiable on this evidence. See Suburban Land Co. Inc. v. Brown, 237 Mass. 166, 168. It is enough to say that the question of waiver was not open on the pleadings and does not appear to have been fairly and fully tried.
time to time the plaintiff did complain to the defendant of the quality of the pulp, it was not until certain dissensions arose between the parties concerning the defendant's diligence as the plaintiff's selling agent, in disposing of its product, and concerning the question whether certain shipments of pulp made on or after December 16, 1918, were sales or merely consignments on memorandum, that the plaintiff gave the defendant reason to understand that it intended to hold him to damages." The first sentence of this paragraph is a correct ruling of law in accordance with the controlling provision of the sales act, St. 1908, c. 237, s. 49, now G. L. c. 106, s. 38. Trimount Lumber Co. v. Murdough, 229 Mass. 254. We interpret the balance of this paragraph to be a finding of fact and not a ruling of law. Complaints as to the quality of the pulp might have been found a sufficient notice of breach of warranty. Fisk Rubber Co. of New York v. New York, New Haven & Hartford Railroad, 240 Mass. 40. We do not understand that there was a ruling of law to the contrary. There was no ruling of law that, in order to hold the defendant, the plaintiff must give him reason to understand that it intended to hold him in damages. That, too, as we understand it, is merely a statement of a finding of fact.

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