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The Complainant is Herbalife International, Inc. of Torrance, California, United States of America, represented by Jose Lloreda Camacho & Co., Colombia.
The Respondent is Shu Lin of Zhongshan, Dalian, China.
The disputed domain name <myherbalifecolombia.com> (“the Domain Name”) is registered with Above.com, Inc. (the “Registrar”).
The Complaint was originally filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 19, 2013 with the Respondent identified as “above.com domain privacy”. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 22, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient and also informing the name of the underlying registrant, the Complainant filed an amended Complaint on April 28, 2013. The amended Complaint identified Shu Lin as the Respondent.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint using the contact details which had been provided by the Registrar in its verification response, and the proceedings commenced on April 29, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2013. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on May 21, 2013.
The Center appointed Nick J. Gardner as the sole panelist in this matter on May 28, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant carries on business on a worldwide basis in the production and sale of nutritional products. It does so under and by reference to the name “herbalife”. It has done so since 1980. It carries out business in around 80 countries and has some 2.5 million distributors of its products.
The Complainant has registered the trade mark HERBALIFE in many countries throughout the world – for example, in Colombia under registration No. 193195 which was registered in respect of hair shampoo and related products in 1996; and registration No. 287744 which was registered in respect of nutritional products in 2004.
The Complainant operates a website at “www.herbalife.com” which promotes its products on a worldwide basis. It also operates many more country specific websites. It also advertises its products in other media on a worldwide basis.
The Respondent registered the Domain Name on March 3, 2013. The Respondent is using the Domain Name in connection with a holding Web page which provides “click through” links to Web sites advertising or promoting other parties products.
The Domain Name is confusingly similar to its trade mark HERBALIFE in which it clearly has rights. The addition of the non-distinctive wording “my” and a geographic designation “colombia” does not distinguish the Domain Name.
HERBALIFE trade mark, cannot be a coincidence as “Herbalife” is not a descriptive or generic term; it is a famous and well known trade mark.
The Complainant says the Respondent has no rights or legitimate interests in the term “herbalife”. There is no other meaning associated with “herbalife” other than in relation to the Complainant’s trade mark, products and business. The Complainant further says that using the Domain Name in relation to a “parking page” with click through links to other products unconnected with the Complainant is use in bad faith, and refers to various previous UDRP decisions in this regard. Complainant finally states that the Respondent acts in bad faith when registering the disputed domain name as he is attracting Internet users by creating confusion with Complainant’s name and trade marks in order to obtain commercial gains.
The Panel finds that the Complainant has rights in the trade mark HERBALIFE. The filed evidence establishes the Complainant’s products have been sold on a substantial sale on a world-wide basis under this trade mark and are very well known. The Complainant has a wide range of registered trade marks HERBALIFE.
The Domain Name is confusingly similar to the HERBALIFE trade mark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy, “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (see Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).
It is established that, where a trade mark is the distinctive part of a domain name, the domain name is considered to be confusingly similar to that registered mark (see DHL Operations B.V. v. DHL Packers, WIPO Case No. D2008-1694).
It is also established that the addition of a generic term (such as here the words “my” which simply suggest a personalized connection, and “colombia” which is a country name) to a domain name has little, if any, effect on a determination of legal identity between the domain name and the mark (see Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253). Furthermore, the mere addition of a generic or descriptive term does not exclude the likelihood of confusion (see PRL USA Holdings, Inc. v. Spiral Matrix, WIPO Case No. D2006-0189).
Accordingly the Panel finds that the Domain Name is confusingly similar to the Complainant’s trade mark. Accordingly the first condition of paragraph 4(a) of the Policy has been fulfilled.
“Herbalife” is a word with no other meaning so far as the Panel is aware save in relation to the Complainant’s products. Whilst it would appear to be a word made up by combining the English words “herbal” and “life”, there is no immediately obvious reason why those words should be combined, nor does the combined word have any separate obvious meaning, and as such it appears to the Panel to be a word whose only meaning is in relation to the Complainant and its products. The addition of the non-distinctive words “my” and “colombia” do not provide any additional basis for the Respondent to claim rights in the Domain Name.
None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Domain Name or to use the HERBALIFE trade mark. The Complainant has prior rights in the HERBALIFE trade mark which precede the Respondent’s registration of the Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights and legitimate interests in the Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the Domain Name. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.
In the present circumstances, the distinctive nature of the HERBALIFE trade mark, and the evidence as to the extent of the reputation the Complainant enjoys in the HERBALIFE trade mark, and the confusingly similar nature of the Domain Name to the HERBALIFE trade mark, and the lack of any explanation from the Respondent as to why it registered the Domain Name lead the Panel to conclude the registration and use was in bad faith.
In the present case, the Panel concludes the Respondent was aware of the Complainant’s HERBALIFE trade mark when it registered the Domain Name. The Panel concludes that it is highly likely that the Respondent selected the Domain Name because of its similarity with the Complainant’s HERBALIFE trade mark. The addition of the words “my” and “colombia” suggests to the Panel that the Respondent was deliberately choosing a name with a close and confusing connection to the Complainant’s name. Further, the Panel notes the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of legitimate use that it might have. The Panel infers that none exists.
The website operated by the Respondent at the Disputed Domain Name comprises a series of “click through” links to other third party websites. The Panel infers that some consumers, once at the Respondent’s website, will follow the provided links and “click” through to other websites which offer products some of which may compete with those of the Complainant. The Respondent presumably earns “click through” linking revenue as a result. The Panel suspects the Respondent’s website is probably automatically generated. This does not however matter. It is well established that where a domain name is used to generate revenue in respect of “click through” traffic, and that traffic has been attracted because of the name’s association with the complainant, such use amounts to use in bad faith. See for example Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315; Owens Corning v. NA, WIPO Case No. D2007-1143; McDonald’s Corporation v. ZusCom, WIPO Case No. D2007-1353; Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912; Rolex Watch U.S.A., Inc. v. Vadim Krivitsky, WIPO Case No. D2008-0396.
As a result, and applying the principles in the above noted UDRP decisions, the Panel finds that the Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.
As a result the Panel finds that the Domain Name has been registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <myherbalifecolombia> be transferred to the Complainant.

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Hereby promulgated the Act on State guarantee for loans for experimental construction, see. lovbekendtgørelse nr. 34 of 21. January 1999, with the changes imposed by section 69 of Act No. 430 of 6. June 2005, and section 165 of law No. 1336 of 19. December 2008.
§ 1. (Repealed) section 1a. The Minister for economic and business affairs can provide State guarantee to the experimental construction, see. paragraph 2, within a framework of up to 15 million. DKK annually for mortgages or similar mortgage loans after economic and business Minister's detailed provision granted by a financial institution, who admitted to cover 80 per cent of the difference between the value of the property at the time of loan uptake and the documented costs, including borrowing costs and, where appropriate, exchange rate losses to the construction of the following new construction for year-round use as well as for the establishment of common facilities associated with it: 1) home ownership, 2) private rental properties , 3) private cooperative dwellings which are not communicated or communicated to the undertaking in accordance with the law on public housing and supported private cooperative housing, etc., or 4) private cooperative housing, for which the Municipal Council shall notify the undertaking pursuant to section 160 (a) of the law on public housing and supported private cooperative housing, etc. the State guarantee in lieu of the in § 160 d, paragraph 1, of the law on public housing and supported private cooperative housing, etc. referred to municipal guarantee.
(2). The guarantee of the loan referred to in paragraph 1 may not cover more than 15 percent of the documented expenses for the construction of new buildings, including borrowing costs and, where appropriate, exchange rate losses. It is a condition for granting the guarantee referred to in paragraph 1, the project previously approved by the Minister for economic and business affairs as containing effort significantly with new or modified construction methods, building design and operation and maintenance methods, including experiments with organic solutions and new accommodation facilities.
(3). The net proceeds of the total equity including the Government-guaranteed loans may not exceed 80 percent of the documented expenses for the construction of new buildings, including borrowing costs and, where appropriate, exchange rate losses. It is a condition of the guarantee, the loan is granted against mortgages on the property, see. § 1 mortgage, with Lien after the preceding oprykkende loan and that the loan, which is under warranty, have the same maturity and repaid in the same way as the above loans.
(4). The guarantee covers the lender's loss on the Government-guaranteed loans and possibly overdue futures services, see. paragraph 1 and paragraph 3, 2. point, with 100 per cent Guarantee covers at all times fully a proportion of the total current remaining debt on guaranteed and preceding ugaranterede loans, which corresponds to the share of the guaranteed loan principal represents of the total principal amount of the guaranteed and the preceding ugaranterede loans. That may not be included with priority ahead of new loans it guaranteed loans, as long as the warranty runs.
(5). The guarantee scheme administered by the Danish Agency for giving the guarantee statement in relation to the lending institution.
(6). The Minister for economic and business affairs shall lay down detailed rules concerning the mentioned in paragraphs 1 to 5 ratio, including about which construction which can be considered as experimental construction, see. paragraph 2, as well as on the formulation of warranty statement, etc.
§ 2. The Minister for economic and business affairs for the Danish Agency can fully or partially transfer the powers conferred on the Minister under this Act.
(2). The Minister for economic and business affairs lays down rules on access to appeal against decisions taken pursuant to the authority in accordance with paragraph 1, including that decisions should not be brought before the Minister.
§ 3. The who provides false or misleading information in connection with the application for the granting of State guarantee, be punished with fine or booklet, unless higher penalty is inflicted for other legislation.
§ 3 the Minister for economic and Business Affairs establishes the time of the entry into force of the Act.
§ 2 the law shall enter into force on the 1. January 1999.
section 70 (1). The law shall enter into force on the day after publication in the Official Gazette.
(2). The law shall take effect from the 1. November 2005, see. However, paragraph 3.
(3). Decisions about recovery in the 1. October 2005 the appeal was lodged to the existing administrative review bodies, released for treatment in the national tax Tribunal on 1. on January 1, 2006, if the existing review bodies has not finalised its complaint before this date.
Economic and business affairs, the 16. December 2010 Brian M/Finn Lauritzen Official notes 1) Notice in the Official Gazette took place on 23. December 1993.
2 the notice in the Official Gazette) took place on 15 July. June 1995.


The Secretary shall direct the Commissioner of Education Statistics to convene a series of forums to develop nationally consistent methodologies for reporting costs incurred by postsecondary institutions in providing postsecondary education.
On the basis of the methodologies developed pursuant to paragraph (1), the Secretary shall redesign relevant parts of the postsecondary education data systems to improve the usefulness and timeliness of the data collected by such systems.
(C) collect information regarding the data elements described in subparagraph (A) with respect to at least all institutions of higher education participating in programs under subchapter IV, beginning with the information from academic year 2000–2001 and annually thereafter.
The Secretary shall make available the data collected pursuant to subsection (a). Such data shall be available in a form that permits the review and comparison of the data submissions of individual institutions of higher education. Such data shall be presented in a form that is easily understandable and allows parents and students to make informed decisions based on the costs for typical full-time undergraduate students.
(G) institutional expenditures for construction and technology and the potential cost of replacing instructional buildings and equipment.
(C) the extent to which increases in institutional financial aid and tuition discounting practices affect tuition increases, including the demographics of students receiving such discounts, the extent to which financial aid is provided to students with limited need in order to attract a student to a particular institution, and the extent to which Federal financial aid, including loan aid, has been used to offset the costs of such practices.
The Commissioner of Education Statistics shall submit a report regarding the findings of the study required by paragraph (1) to the appropriate committees of Congress not later than September 30, 2002.
The Bureau of Labor Statistics, in consultation with the Commissioner of Education Statistics, shall develop a higher education market basket that identifies the items that comprise the costs of higher education. The Bureau of Labor Statistics shall provide a report on the market basket to the Committee on Labor and Human Resources of the Senate and the Committee on Education and the Workforce of the House of Representatives not later than September 30, 2002.
In addition to actions authorized in section 1094(c) of this title, the Secretary may impose a fine in an amount not to exceed $25,000 on an institution of higher education for failing to provide the information described in paragraph (1) in a timely and accurate manner, or for failing to otherwise cooperate with the National Center for Education Statistics regarding efforts to obtain data on the cost of higher education under this section and pursuant to the program participation agreement entered into under section 1094 of this title.
The Secretary shall display a link to the Federal student financial aid website of the Department in a prominent place on the homepage of the Department's website.
The Secretary shall continue to improve the usefulness and accessibility of the information provided by the Department on college planning and student financial aid.
The Secretary shall continue to make the availability of the information on the Federal student financial aid website of the Department widely known, through a major media campaign and other forms of communication.
As a part of the efforts required under this subsection, the Secretary shall create one website accessible from the Department's website that fulfills the requirements under subsections (b), (f), and (g).
(B) is easily accessible through the website described in subsection (e)(3).
Not later than one year after August 14, 2008, the Secretary shall make publicly available the Armed Forces information website described in paragraph (1).
The Secretary, in coordination with the Secretary of Defense and the Secretary of Veterans Affairs, shall make the availability of the Armed Forces information website described in paragraph (1) widely known to members of the Armed Forces (including members of the National Guard and Reserves), veterans, the dependents of such members or veterans, States, institutions of higher education, and the general public.
(B) available to members of the Armed Forces (including members of the National Guard and Reserves), veterans, or the dependents of such members or veterans.
(B) operated, sponsored, or supported by a Federal department or agency other than the Department of Education.
(B) the website displaying the information described in subparagraph (A) includes a link to the National Database on Financial Assistance for the Study of Science, Technology, Engineering, and Mathematics pursuant to paragraph (4), and the information on military benefits under subsection (f), once such Database and information are available.
(B) identify for the Secretary any nondepartmental student financial assistance program operated, sponsored, or supported by such Federal department or agency.
The Secretary shall establish and maintain, on the website described in subsection (e)(3), a National Database on Financial Assistance for the Study of Science, Technology, Engineering, and Mathematics (in this paragraph referred to as the "STEM Database"). The STEM Database shall consist of information on scholarships, fellowships, and other programs of Federal, State, local, and, to the maximum extent practicable, private financial assistance available for the study of science, technology, engineering, or mathematics at the postsecondary and postbaccalaureate levels.
The STEM Database shall provide separate information for each of the fields of science, technology, engineering, and mathematics, and for postsecondary and postbaccalaureate programs of financial assistance.
The STEM Database shall provide specific information on any program of financial assistance that is targeted to individuals based on financial need, merit, or student characteristics.
(II) if such sponsor maintains a public website, a link to the website.
(bb) provides information to an individual for only those opportunities for which such individual is qualified, based on the student characteristics provided by such individual.
(II) a disclaimer that the non-Federal programs of student financial assistance presented in the STEM Database are not provided or endorsed by the Department or the Federal Government.
(ii) make easily available a process for such entities to provide regular and updated information about the scholarships, fellowships, or other programs of student financial assistance.
In carrying out the requirements of this paragraph, the Secretary is authorized to enter into a contract with a private entity with demonstrated expertise in creating and maintaining databases such as the one required under this paragraph, under which contract the entity shall furnish, and regularly update, all of the information required to be maintained on the STEM Database.
The Secretary shall take such actions, on an ongoing basis, as may be necessary to disseminate information under this subsection and to encourage the use of the information by interested parties, including sending notices to secondary schools and institutions of higher education.
(2) information about higher education programs or student financial assistance available through a database or website of the Department.
A prior section 1015, Pub. L. 89–329, title I, §131, as added Pub. L. 102–325, title I, §101, July 23, 1992, 106 Stat. 465 , authorized grants to eligible partnerships for education telecommunications activities, prior to the general amendment of this subchapter by Pub. L. 105–244.
Another prior section 1015, Pub. L. 89–329, title I, §115, as added Pub. L. 99–498, title I, §101, Oct. 17, 1986, 100 Stat. 1285 , authorized appropriations for former part A of this subchapter, prior to the general amendment of this subchapter by Pub. L. 102–325.
Another prior section 1015, Pub. L. 89–329, title I, §115, as added Pub. L. 96–374, title I, §101(a), Oct. 3, 1980, 94 Stat. 1380 , related to continuing education, prior to the general amendment of this subchapter by Pub. L. 99–498.
Another prior section 1015, Pub. L. 89–329, title I, §131, as added Pub. L. 94–482, title I, §101(g)(3), Oct. 12, 1976, 90 Stat. 2086 , set out the Congressional findings with regard to the lifelong learning program, prior to the general amendment of this subchapter by Pub. L. 96–374.
A prior section 131 of Pub. L. 89–329, title I, as added Pub. L. 99–498, title I, §101, Oct. 17, 1986, 100 Stat. 1286 , related to National Advisory Council on Continuing Education and was classified to section 1017 of this title, prior to the general amendment of this subchapter by Pub. L. 102–325.
2009-Subsec. (a)(3)(A)(iii)(I). Pub. L. 111–39 substituted "section 1078(a)(2)(C)(ii)" for "section 1078(a)(2)(C)(i)".
2008-Subsec. (a)(3)(B). Pub. L. 110–315, §103(b)(1), substituted "authorizing committees" for "Committee on Labor and Human Resources of the Senate and the Committee on Education and the Workforce of the House of Representatives".
Subsecs. (d), (e). Pub. L. 110–315, §110(a), added subsecs. (d) and (e) and struck out former subsec. (d), which required the Secretary to survey student aid recipients on a regular cycle, but not less than once every 3 years.
Subsecs. (f), (g). Pub. L. 110–315, §110(b), added subsecs. (f) and (g).
Subsec. (h). Pub. L. 110–315, §110(c), added subsec. (h).
Committee on Labor and Human Resources of Senate changed to Committee on Health, Education, Labor, and Pensions of Senate by Senate Resolution No. 20, One Hundred Sixth Congress, Jan. 19, 1999.
Pub. L. 105–244, title VIII, §803, Oct. 7, 1998, 112 Stat. 1805 , which required the Secretary of Education to conduct a study to analyze the distribution and increase in student-related debt, submit a report to congressional committees, and include certain information as part of the comparative information provided to families about the costs of higher education, was repealed by Pub. L. 110–315, title IX, §931(1), Aug. 14, 2008, 122 Stat. 3456 .


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JUNE SALINSKY & another [Note 1] vs. PERMA-HOME CORPORATION.
Present: HALE, C.J., CUTTER, & PERRETTA, JJ.
CONTRACT OR TORT. Writ in the Superior Court dated January 30, 1973.
Bruce N. Sachar for the plaintiffs.
Santo J. Ruma for the defendant.
CUTTER, J. The evidence in this action would permit the jury to make the following findings.
A. In July, 1958, Perma-Home Corporation (the seller) installed aluminum siding on a house in Marblehead owned by the Salinskys. Mrs. Salinsky, who had seen advertising of Alcoa aluminum siding, had consulted the seller. One Caplan, then the owner of the seller, came to see the Salinskys. He gave them a quotation for Alcoa siding and quoted a "lesser figure" for "a different type of aluminum siding."
B. Installation of the siding took about six weeks. Mrs. Salinsky was then working for her husband from 9:00 A.M. to 5:00 P.M. The seller's workmen, however, sometimes arrived at her house to drop off supplies before she left for work. Cartons of siding were stored in the Salinskys' garage or on the driveway. Mrs. Salinsky could not remember whether there was writing on the cartons although "[t]here may have been."
looked at the siding and "watered it down." She complained to Alcoa, whose representative, after examining the house, determined that the siding was not an Alcoa product. The parties stipulated that the siding was not Alcoa siding. If the siding had been an Alcoa product, the discoloration, a result of corrosion and mildew, might not have occurred because Alcoa siding (so it was testified) is treated chemically with a special process unique to Alcoa. Mrs. Salinsky then got in touch with the seller.
This action against the seller was started on January 30, 1973. In two counts it was alleged (1) that the seller knowingly made fraudulent misrepresentations and warranties upon which the Salinskys relied to their detriment, and (2) that the seller represented that it would use Alcoa siding and negligently installed an inferior product on the Salinskys' house. The seller denied the Salinskys' allegations and asserted several defenses, including various statutes of limitation. At the close of the Salinskys' evidence, the seller filed a motion for a directed verdict. As to count 1, the motion purported to be based on G. L. c. 260, Section 2, under which the action should have been commenced within six years from July 25, 1958. With respect to count 2, it was asserted that (under c. 260, Section 2A, prior to its amendment by St. 1973, c. 777, Section 1) the action should have been commenced within two years from July 25, 1958. The seller also claimed that under both counts there was no compliance with the time limit set out in c. 260, Section 2B. Without objection by counsel, the case was submitted to the jury on count 1, essentially only as an action alleging deceit (and thus a tort) and on instructions which did not deal in any direct way with any questions under any statute of limitations.
The jury returned a verdict for the Salinskys of $7,000 on count 1, and a verdict for the seller on count 2. There was evidence that the cost of removing the present siding and replacing it with Alcoa siding would be about $7,000.
count 1. The motion referred to the grounds set forth in the seller's earlier motion for a directed verdict. [Note 4] The trial judge granted the motion, and then in effect merely stated to the jury that the Salinskys' claim was barred by a statute of limitations. It thus is necessary to determine whether any of such statutes possibly applicable was tolled during the thirteen years from the installation of the siding in 1958 until 1971, when the Salinskys cut down their trees and first noticed the discoloration and pitting. The period exceeded the six-year limitation period in G. L. c. 260, Sections 2 and 2B. The Salinskys have the burden of proving that the injuries of which they complain arose within the applicable period of limitation prior to initiation of this action. See Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. 99, 110 (1980). See also Friedman v. Jablonski, 371 Mass. 482, 487-488 (1976).
assumed, as the jury found, that there was initial fraud in the sale of the siding, that did not amount to fraudulent concealment under Section 12. Connelly v. Bartlett, 286 Mass. 311, 317-320 (1934). Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. at 109. [Note 5] In Massachusetts mere silence is not ordinarily a fraudulent concealment. There must be some affirmative act of concealment of the cause of action. Stetson v. French, 321 Mass. 195, 198 (1947). White v. Peabody Constr. Co., 386 Mass. 121, 133 (1982).
3. The trial judge correctly could have ordered judgment for the seller notwithstanding the verdict on count 1, because the governing statute of limitations or repose was G. L. c. 260, Section 2B. See St. 1968, c. 612, since amended by St. 1973, c. 777, Section 2. Since 1968, Section 2B has provided that actions "of tort for damages arising out of any deficiency . . . in the . . . construction . . . of an improvement to real property" in no event shall be commenced "more than six years after the performance or furnishing of such . . . construction . . . ." White v. Peabody Constr. Co., 386 Mass. at 129, recognized that Section 2B "clearly establishes some variant of the discovery rule for design and construction negligence cases" but (on the facts of that case) had no occasion to consider fully the explicit statutory language just quoted. Section 2B, however, was dealt with thoroughly in Klein v. Catalano, 386 Mass. 701 (1982), decided more than a year after the 1981 trial of this case. [Note 8] See also King's Dept. Stores, Inc. v. Poley Abrams Corp., 386 Mass. 1008 (1982).
We think that the Klein case applies to the present litigation about the 1958 agreement, which we regard as, in all important respects, a contract for services and construction. [Note 9] Cf. Raffel v. Perley, 14 Mass. App. Ct. 242, 243-247 (1982). To apply Section 2B to the installation of the siding is wholly consistent with the apparent purpose underlying the sections. See the Klein case at 704-705, and 708-711. Even though the Salinskys' claim was based on work completed long before 1968, [Note 10] (when Section 2B first took effect), Section 2B, as a statute of "repose" (Klein case at 702) may be applied to such completed events. See the Klein case at 705-706.
4. In view of the Klein case and Section 2B, we need not consider (a) whether the jury, as finders of the fact, might reasonably have concluded that the Salinskys were not put on inquiry about deficiencies in the siding until the trees came down in 1971 and that the use of other than Alcoa siding was "inherently unknowable" in the circumstances; or (b) whether that question was for determination by the jury. See Abele v. Dietz, 312 Mass. 685, 690 (1942); Mendes v. Roche, 317 Mass. 321, 323-324 (1944); West Roxbury Coop Bank v. Bowser, 324 Mass. 489, 490-491 (1949).
[Note 2] The contract provided, "This contract contains the whole agreement with us. Company [i.e. the seller] will furnish its customary guarantee adjusted to the type of work done on above property upon completion of this contract." No such guarantee was introduced in evidence and we have no knowledge whether such a guarantee was given or what its terms were if one was given.
[Note 3] The copy of the agreement in the record is not easy to read. The panel thinks it likely that the original read "Alcon" rather than "Alcoa" but we are not by any means certain of this. If the Salinskys' lost copy was no more legible than that in the record, there was real need for inquiry and clarification. If it clearly read "Alcoa," the occasion for inquiry, of course, would have been less. After the construction was completed, the Salinskys could not reasonably have been expected to remove a piece of siding to examine it to determine whether it was Alcoa aluminum or siding of some other producer. Even the experts apparently had some difficulty in making this determination after a piece of siding had been removed for their examination.
[Note 4] The judge had submitted the case to the jury in the hope that he thereby would avoid a retrial in the event that on appeal his action on the motion should be held to have been error. See Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974, 975 (1976).
[Note 5] By contrast the Federal rule is "established with more liberality than . . . [the law] of Massachusetts." Under the Federal rule, "where fraud is involved the cause of action is . . . automatically concealed, and does not arise until discovery." See Janigan v. Taylor, 344 F.2d 781, 784 (1st Cir.), cert. denied, 382 U.S. 879 (1965); Cook v. Avien, Inc., 573 F.2d 685, 694-695 (1st Cir. 1978). See also Tracerlab, Inc. v. Industrial Nucleonics Corp., 313 F.2d 97, 98-101 (1st Cir. 1963).
[Note 6] The decided cases give little guidance about what is an "inherently unknowable" cause of action. Cause to inquire about facts giving rise to the cause of action may be sufficient to prevent tolling or extensions of the period of a statute of limitations. See White v. Peabody Constr. Co., 386 Mass. at 129-130; Dinsky v. Framingham, 386 Mass. 801, 803-804 (1982); Mansfield v. GAF Corp., 5 Mass. App. Ct. 551, 553-555 (1977); Frank Cook, Inc. v. Hurwitz, 10 Mass. App. Ct. at 108-111. Compare the treatment in Friedman v. Jablonski, 371 Mass. at 486, of representations about a right of way, presumably verifiable from public records, and that of representations about an artesian well, not as readily subject to verification. Compare also Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 740-743 (1978); Nantucket v. Beinecke, 379 Mass. 345, 350-352 (1979).
[Note 7] The discussion in parts 1 and 2 of this opinion, supra, establishes only that Section 12, in any event, has no application to this case because the record discloses (a) no affirmative fraudulent concealment of the cause of action by the seller, and (b) the absence of any traditional form of fiduciary relationship between the seller and the Salinskys. Whether the Salinskys' claim rested on any foundation "inherently unknowable" becomes irrelevant in view of our conclusion (see part 3 of this opinion, infra) that recovery in this action is barred by G. L. c. 260, Section 2B. We thus have no occasion to consider whether Section 12 affects Section 2B in any manner.
[Note 8] The seller in motions presented to the trial judge relied on Section 2B but on appeal did not argue that Section 2B was controlling, probably because the Klein case was not decided until July 7, 1982.
[Note 9] No contention appears to have been made in the Superior Court, and none has been made in this court, that the applicable statute of limitations was that contained in G. L. c. 106, Section 2-318, as amended through St. 1974, c. 153, or in Section 2-725. Thus we do not consider whether the agreement could be regarded as a sale of the siding as goods. See c. 106, Section 2-105(1). The Klein case, at 718-720, in any event, indicates that any claims for breach of warranty would be barred by Section 2B.
[Note 10] Even if Section 2B were to be viewed as comparable to a traditional statute of limitations, the Salinskys were afforded a reasonable period of ninety days to bring an action between the approval of St. 1968, c. 612, and its effective date. See art. 48, The Referendum, I, of the Amendments to the Massachusetts Constitution; Opinion of the Justices, 368 Mass. 889, 891 n.4 (1975). See also Mulvey v. Boston, 197 Mass. 178, 182-185 (1908); Cunningham v. Commonwealth, 278 Mass. 343, 345-346 (1932); Cioffi v. Guenther, 374 Mass. 1, 3-4 (1977). See also Lewis v. Crowell, 205 Mass. 497, 500-501 (1910); Colby v. Shute, 219 Mass. 211, 215-216 (1914); Evans v. Building Inspector of Peabody, 5 Mass. App. Ct. 805, 806 (1977).

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The Colorado Court of Appeals issued its opinion in Colorado Common Cause v. Gessler, Secretary of State on August 30, 2012.
This case arose out of a challenge to the Colorado Secretary of State’s (Secretary) rulemaking authority brought by plaintiffs, Colorado Common Cause and Colorado Ethics Watch, pursuant to CRS § 24-4-106. The Secretary appealed the trial court’s order finding he exceeded his rulemaking authority in promulgating Rule 4.27. [Rule 4.27 has since been renumbered as Rule 4.1, 8 Code Colo. Regs. 1505–6.] The order was affirmed.
In 2002, Colorado voters adopted the Campaign and Political Finance Amendment (Amendment), which sets forth specific disclosure requirements that apply to various categories of participants in the elections process. The Amendment also regulates “issue committees” that advocate for or against ballot issues or questions. The Amendment incorporates the registration and disclosure requirements set forth in the Fair Campaign Practices Act (Act). In November 2010, a panel of the Tenth Circuit held in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), that the financial burden of complying with the registration and reporting requirements for issue committees was substantial and the public interest in such information was minimal.
In response to Sampson, the Secretary commenced a rulemaking process to implement the decision. As part of this process, the Secretary published proposed Rule 4.27, which ultimately was adopted.Rule 4.27 states that “[a]n issue committee shall not be subject to any of the requirements of [the Amendment] or [the Act] until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.” The contributions and expenditure made before reaching this threshold are not required to be reported.
Plaintiffs sued under CRS § 24-4-106. The trial court held that the Secretary had exceeded his rulemaking authority and dismissed the Secretary’s counterclaim for a declaration that the definition of issues committee is unenforceable until such a rule is adopted.
The Court of Appeals noted that an agency does not have authority to promulgate rules that modify or contravene statutory or constitutional provisions. Rule 4.27 creates a contribution and expenditure threshold of $5,000 that triggers an issue committee’s duty to register and disclose. The Act establishes a threshold of $200. On its face, Rule 4.27 conflicts with the clear requirements of Colorado law. Thus, unless Sampson abrogated the $200 threshold, the Secretary lacked the authority to promulgate the rule. The Secretary argued Sampson did just that. The Court disagreed.
The Tenth Circuit declined to address the facial challenge to Colorado’s campaign finance laws, holding only that the application of those laws under the specific facts of Sampson unconstitutionally burdened their freedom of association. The Circuit specifically acknowledged that Colorado campaign finance laws may be constitutionally applied outside of the context presented in Sampson. Consequently, Rule 4.27 sweeps far too broadly. The rule was set aside as void and the order was affirmed.
The Colorado Court of Appeals issued its opinion in Progressive Casualty Insurance Co. v. Moore on August 30, 2012.
Denial of Benefits—Statutory Notice Requirements—Commercial Versus Personal Policies.
In this declaratory judgment action, S. Bryan Moore appealed the judgment entered in favor of Progressive Casualty Insurance Company. The judgment was affirmed.
Moore was involved in a car accident. Progressive Casualty Insurance Co. (Progressive) denied his claim for insurance benefits because his automobile insurance policy had expired months earlier.
Moore contended that the trial court misapprehended the applicability of CRS § 10-4-110.5. Specifically, Moore argued that the policy had renewed automatically because Progressive had failed to comply with the statutory notice requirements. However, § 10-4-110.5 applies only to commercial automobile insurance policies, and Moore’s policy was not commercial. Therefore, the trial court’s ruling was affirmed.
The Tenth Circuit published its opinion in United States v. De Vaughn on August 31, 2012.
The defendant, Jay De Vaughn, pleaded guilty to mailing threatening communications and made this plea unconditionally, without reserving a right to appeal. De Vaughn appealed, saying his statements did not constitute threats, and making an as-applied First Amendment argument. Because the government failed to raise the preclusive effect of his guilty plea, the court analyzed whether it had jurisdiction to hear the appeal before concluding that it did under 28 U.S.C. § 1291.
Generally, “a voluntary and unconditional guilty plea waives all non-jurisdictional defenses.” The Tenth Circuit applied United States v. Cotton to hold that an argument that an indictment or information does not charge a crime against the United States is not jurisdictional.
“A guilty plea waives all defenses except those that go to the court’s subject-matter jurisdiction and the narrow class of constitutional claims involving the right not to be haled into court.” The Tenth Circuit held that the defendant’s First Amendment argument did not involve subject matter jurisdiction.
Because the government waived the preclusive effect of defendant’s guilty plea, the court reviewed the defendant’s arguments for plain error and found none.
The Tenth Circuit published its opinion in Sosa-Valenzuela v. Holder on August 31, 2012.
Baltazar Sosa-Valenzuela, a lawful permanent resident, shot a gang member and was convicted. The INS (now the DHS) sought to deport him. Sosa-Valenzuela sought a § 212 waiver (since repealed) and later, adjustment of status due to his marriage to an American citizen. An immigration judge (IJ) granted both requests and denied the DHS’s motion to reconsider. The Board of Immigration Appeals (BIA) vacated the IJ’s § 212 waiver and adjustment of status.
The BIA has broad appellate jurisdiction under 8 C.F.R. § 1003.1 and reviews IJ decisions de novo. It also is required to apply new law to its decisions. The BIA’s broad powers of collateral review do not violate a petitioner’s due process rights because “the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Sosa-Valenzuela was afforded that opportunity.
The Tenth Circuit remanded to the BIA to reevaluate the § 212 waiver decision because the case it relied on in finding Sosa-Valenzuela was ineligible for the waiver had later been found unconstitutional by the Supreme Court in Judulang v. Holder, 132 S. Ct. 476 (2011). The court affirmed the BIA’s denial of adjustment of status due to marriage because its review of the BIA’s exercise of discretion is limited under 8 U.S.C. § 1252 to constitutional claims or questions of law, neither of which was present here.
On Friday, August 31, 2012, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.


For those who are interested in obtaining a general understanding of water rights law, we provide the following summary below. The summary is not intended to be complete and should be viewed as legal information only, and not as legal advice. Those who need to apply it to a particular factual situation should seek the advice of this office or other qualified legal professionals, as the presence of subtle, seemingly inconsequential facts can significantly change the legal analysis. Please read our disclaimer.
Generally speaking, there are two types of appropriative water rights recognized in California—pre-1914, and post-1914.
In 1872, the California Legislature enacted sections 1410 through 1422 of the California Civil Code. These code sections were in effect until December 19, 1914, hence the name “pre-1914.” These sections established the procedure for fixing the priority of an appropriation of water. Generally, the person intending to obtain the right was required to first post a notice of appropriation at the proposed point of diversion and then to later record a copy of the notice with the appropriate County Recorder. If these procedures were not followed, the priority of the appropriative right did not attach until the water was beneficially used. (Duckworth v. Watsonville Water Co. (1910) 158 Cal. 206, 110 P. 927).
Once acquired, a pre-1914 appropriative right can be maintained only by continuous beneficial use of the water. The right is not fixed by the amount claimed in the original notice of appropriation; the notice of appropriation really only fixes the date of priority. The amount of the right is fixed by the amount that can be shown to be actually beneficially used as to both amount and season of diversion.
On December 19, 1914, the California Legislature adopted Division 2, Part 2 of the California Water Code. The enactment of Division 2 fundamentally changed the procedures for obtaining an appropriative water right.
a. File an Application to Appropriate Water with the State Water Resources Control Board.
b. File an Environmental Information form with the Application.
c. Submit a map of the area (which may have to be drawn by a registered civil engineer depending upon the size of the appropriation sought).
d. Include a $1000 application fee to the State Water Resources Control Board and an $850 application fee to the Department of Fish and Game.
e. Enter into a Memorandum of Understanding with the State Water Resources Control Board for the preparation of environmental documents.
The application forms can be obtained from the State Water Resources Control Board, located at 1001 I Street, Sacramento, CA, or on the internet. The steps described above can become very complicated and any person who would like to apply for a water right should contact an attorney who is familiar with them. Supplying incorrect or incomplete information during these steps can forever prejudice a hopeful applicant and result in unnecessary costs or the denial of the application.
There are two special subsets of appropriative water rights called a “small domestic registration,” and a “small livestock stockpond registration.” These “registrations” allow a person to obtain a permit for the appropriation of water, if water is available, for these uses as long as the amount of water sought does not exceed 4500 gallons per day or 10 acre-feet per year. The processing of these two types of rights is streamlined and does not normally require as much documentation as the typical appropriative water right application.
Nonuse: Nonuse is different from abandonment. Nonuse simply means the failure to put the water to beneficial use for a period of five years. It is also called a "forfeiture." (Water Code Section 1241; Lindblom v. Round Valley Water Co. (1918) 178 Cal. 450; 173 P. 994, North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555, 54 Cal.Rptr.3d 578.).
The riparian right arose, depending upon the historian consulted, from the Code Napoleon (Samuel Weil, Water Rights in the Western United States (3d ed. 1911)), or from early English common law (Arthur Maass & Hiller Zobel, Anglo-American Water Law: Who Appropriated the Riparian Doctrine? 10 Pub. Pol’y 109 (1961)), and it was later incorporated in the California Constitution. Generally, lands that are traversed or border upon a natural watercourse may be riparian. California Court cases hold that each riparian has a right that is “correlative” with other riparians. Thus, each must share the water from that source (Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App. 4th 742, 72 Cal.Rptr. 2d 1). The guidelines below outline the rights and obligations associated with a riparian right.
a. The extent of lands having riparian status is determined by three criteria: (1) The land in question must be contiguous to the stream. The length of frontage is an immaterial factor. (2) The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner. (3) The land, in order to be riparian, must be within the watershed of the stream. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 81 P.2d 533).
b. As to any owner below the confluence of two branches of a stream, the drainage areas of both branches must be deemed to constitute a single watershed and the owner riparian to both branches. (Holmes v. Nay (1921) 186 Cal. 231, 199 P. 325).
c. A riparian owner may, for the more convenient use of the water on his riparian land, go upon the land of another farther up the stream, with the consent of such landowner, and there divert the water for use upon the land below. (Turner v. James Canal Co. (1909) 155 Cal. 82; 99 P. 520).
e. Riparian rights are not determined by past geologic formations but by the present natural topography. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 81 P.2d 533).
f. A parcel of land loses its riparian status forever when severed from land bordering the stream by conveyance, unless the conveying document specifically reserves the riparian right. (Miller & Lux, Inc. v. J.G. James Co. (1919) 179 Cal. 689; 178 P. 716).
g. The riparian right is neither created by use nor lost by non-use. (Lux v. Haggin (1886) 69 Cal. 255, 10 P. 674).
h. If there is insufficient water for the reasonable beneficial requirements of all riparian owners, they must share the available water supply. Apportionment is governed by the circumstances of each case, including each owner’s reasonable requirements and particular uses. A riparian owner who uses water for domestic purposes (household use, watering of domestic animals, etc.) may take the whole supply over one who uses it for other purposes. (Deetz v. Carter (1965) 232 Cal.App.2d 851, 43 Cal.Rptr. 321).
i. A riparian right may be lost through prescription. (See discussion below under Prescription.) (Pabst v. Finmand (1922) 190 Cal. 124, 211 P. 11; Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App. 4th 742, 72 Cal.Rptr. 2d 1).
j. A riparian right is subject to those appropriative rights that were perfected, as the result of the diversion of water, prior to the date of vesting of the riparian right, which is when the grant from the United States government was obtained. Otherwise a riparian right is generally superior in right to an appropriative right. (Haight v. Costanich (1920) 184 Cal. 426; 194 P. 26; Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App. 4th 742, 72 Cal.Rptr. 2d 1).
k. The riparian right cannot be transferred for use upon a nonriparian parcel of land. (Holmes v. Nay (1921) 186 Cal. 231, 199 P. 325).
l. The riparian right does not apply to foreign water; i.e. water originating in a different water shed, or stored and released by another user. (Stevinson Water District v. Roduner (1950) 36 Cal.2d 264, 223 P.2d 209; Bloss v. Rahilly (1940) 16 Cal. 2d 70; 104 P.2d 1049).
m. A riparian right does not grant the right to store the water for seasonal use (generally greater than 30 days). (Colorado Power Co. v. Pacific Gas & Electric Co. (1933) 218 Cal. 559; 24 P.2d 495).
Generally speaking, the priority of an appropriative water right is “first in time, first in right;” therefore an appropriative water right is subordinate and subject to all prior vested rights, whether appropriative or riparian. Prescription is a legal doctrine that allows a water user to overcome a prior water right held by another. Thus, if a junior water right holder diverts water that is lawfully entitled to a senior water right holder, the junior may become entitled to that water if the diversion satisfies a number of requirements.
First, the use by the junior must be continuous and uninterrupted for a period of five years. Second, during those five years, the use must be open and notorious, exclusive, under claim of right, hostile and adverse to the title of the senior owner, and an invasion of the senior owner’s right. Third, the senior owner must have had an opportunity to prevent the adverse use by legal action, and any taxes that are assessed on the water must be paid by the junior. Absence of any of these conditions is fatal to the acquisition of a prescriptive water right.
Water users are ordinarily not concerned with the use of water by others after it has passed their land or point of diversion. Thus, a prescriptive water right ordinarily cannot be acquired against an upstream user.
A right cannot be acquired by prescription to use a greater quantity of water than is reasonably necessary for the beneficial purpose served, regardless of the amount actually used.
It is important to note that the prescription doctrine described above relates as between two fully permitted appropriative water right owners, or a riparian or permitted appropriative water right owner. It is currently unclear whether an unpermitted appropriative water right user can obtain a prescriptive water right against a permitted water right holder or riparian. Since enactment of Division 2, Part 2 of the California Water Code, a right to appropriate or use water cannot be secured without first obtaining a permit from the State. However, this right may only apply as against the State, and may not be required to obtain a right against another lawful user. (People v. Shirokow (1980) 26 Cal.3d 301).
Pursuant to Water Code Section 1702, vested appropriative and riparian rights cannot be impaired by the issuance of a new water right. A permit, if issued to the applicant, will limit the water to be appropriated so that the new permit will not injure existing rights. The priority of the right acquired will be the filing date of the application.
The right to use water is a “usufructory” property right and is protected in a number of ways. The individual who believes their water right is being infringed upon may file a complaint with the State Water Resources Control Board (the “Board”), or may institute court action. The Board, if consulted, may investigate and possibly fine the wrongful user if it finds that an individual is using water unlawfully. If a suit is instituted in court, the court may enjoin the wrongful user, or it may award damages to the rightful user of the water if it finds that an individual is using water in a manner that is wrongfully denying another the use of the water.
Note that the Board will not become involved in a dispute concerning the validity or exercise of a pre-1914 or riparian right, only a court of competent jurisdiction may do so. Generally, the Board’s authority to determine the validity of a water right extends only to appropriative water rights initiated post-1914, unless petitioned by one or more claimants to engage in a statutory stream adjudication, in which case the Board is empowered to determine all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right. (California Water Code § 2501). Such adjudications are extraordinarily time consuming and expensive.
Jurisdiction over groundwater is generally left to the county within which the groundwater lies. The jurisdiction of the State Water Resources Control Board extends only to surface water and subterranean streams flowing through known and definite channels. (Water Code § 1200).
Generally, landowners have the right to withdraw water from an underground aquifer for reasonable beneficial use on their overlying land. This right to withdraw water is correlative (similar to a riparian right holder’s) with all the other landowners overlying the same aquifer.
With respect to a spring which has no natural outlet, the owner of the land in which it lies, under ordinary circumstances, owns the water as completely as he does the soil. (State of California v. Hanson (1961) 189 Cal. App. 2d 604; 11 Cal. Rptr. 335). Such water may be used without obtaining a permit from the State Water Resources Control Board; however, a Statement of Water Diversion and Use should be filed with the Board.
If a spring contributes to a flowing stream, a permit from the State Water Resources Control Board must be obtained, unless the water can be used under a riparian water right.
The “public trust” is a legal concept imported from Roman law into English common law. From this origin in Roman law, the concept of the public trust evolved, under which the federal government owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. The states acquired title as trustees to such lands and waterways upon their admission to the union (supra.) Historically, the trust applied only to navigation and similar uses in navigable waterways. However, in National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal. 3d 419, 189 Cal.Rptr. 346, the California Supreme Court expanded the trust to include public interests in non-navigable waterways. Thus, the scope of the public trust in California is very broad.
Any use of surface water in California is theoretically subject to the public trust. In addition, any member of the general public has standing to raise a claim of harm to the public trust. The harm alleged can be based upon a number of factors, which include aesthetics, fishery, ecological disruption, etc. If successfully argued, the application of the public trust can, in effect, amend or modify a water right.
This information does not represent a complete discussion of all the issues relating to water rights. Do not rely on the information contained in this web site. Since every individual's factual situation is different, and can significantly affect the legal analysis, independent legal advice regarding specific situations from a licensed attorney familiar with water law is strongly encouraged.
Gallery and Barton, a Professional Law Corporation and its attorneys make no claims, promises, or guarantees about the absolute accuracy, completeness, or adequacy of the contents of this web site and expressly disclaim liability for any errors and omissions in the contents. No warranty of any kind, implied or expressed, or statutory, including but not limited to the warranties of rights, title, merchantability, fitness for a particular purpose, and freedom from computer virus, is given with respect to the contents of this web site.
Mr. Barton is only licensed to practice law in California, therefore the information contained in this web site would not be applicable to water right issues located outside of California.
Nothing in this web site shall be construed to create an attorney-client relationship. Nothing sent to this law office via e-mail shall constitute an attorney-client relationship. Nothing contained in this web site shall be construed to be a guarantee or prediction of result.


This entry was posted on March 23rd, 2017 and is filed under Downtown Revitalization, General Local Government (Miscellaneous), Land Use & Code Enforcement, Quasi-Judicial Decisions.
After a city or county establishes a historic district or historic landmark, the local historic preservation commission is authorized to prevent certain changes that “would be incongruous with the special character of the landmark or district.” But, what is the special character? And what is incongruous with it? This blog reviews applicable laws and cases to outline the procedural requirements for establishing the special character (through formal report, ordinance description, and design guidelines) and subsequently determining whether a particular change is incongruous (through a quasi-judicial evidentiary hearing).
As defined in the statute, “[h]istoric districts established pursuant to this [law] shall consist of areas which are deemed to be of special significance in terms of their history, prehistory, architecture, and/or culture, and to possess integrity of design, setting, materials, feeling, and association.” G.S. § 160A-400.3. Cities and counties can establish historic districts and historic landmarks for defined areas and properties. Once a local government has designated a property as a historic district or landmark, the property owner must seek a certificate of appropriateness (COA) from the local historic preservation commission in order to make certain changes to the property. A COA is required for any construction, alteration, moving, or demolition of any exterior feature of a designated property.
The preservation commission’s authority for COAs is limited: The commission shall take no action under the preservation authority except to prevent development that “would be incongruous with the special character of the landmark or district.” G.S. § 160A-400.9.
The character of the district or landmark is not left to speculation or guessing. It is not conjured up at the time of COA review. State law requires the local government to distill and clarify the character and context of the historic district or landmark at the time of designation and to establish “principles and guidelines” for COAs.
Before the local governing board may establish a historic district the local government must draft and submit to the State Historic Preservation Officer (SHPO) “[a]n investigation and report describing the significance of the buildings, structures, features, sites or surroundings included in any such proposed district, and a description of the boundaries of such district.” G.S. § 160A-400.4. For historic landmarks, the local government must draft and submit to the SHPO a similar document. Additionally, the ordinance designating the landmark “shall describe each property designated in the ordinance, the name or names of the owner or owners of the property, those elements of the property that are integral to its historical, architectural, or prehistorical value, including the land area of the property so designated.” G.S. § 160A-400.5.
Separately the preservation commission must “prepare and adopt principles and guidelines . . . for new construction, alterations, additions, moving and demolition.” G.S. § 160A-400.9. These principles and guidelines commonly are adopted as design guidelines for the district.
With these procedural requirements, local governments must investigate and report on the elements justifying the designation of a historic district and/or landmark and establish design principles and guidelines to guide the commission in determining if a change is incongruous with the district.
The incongruity standard is a subjective standard requiring judgment. In other words, it is a quasi-judicial standard. The commission must hold an evidentiary hearing to take in evidence and evaluate that evidence against the standards for incongruity.
A contextual standard is one which derives its meaning from the objectively determinable, interrelated conditions and characteristics of the subject to which the standard is to be applied. In this instance the standard of “incongruity” must derive its meaning, if any, from the total physical environment of the Historic District. That is to say, the conditions and characteristics of the Historic District’s physical environment must be sufficiently distinctive and identifiable to provide reasonable guidance to the Historic District Commission in applying the “incongruity” standard.
A-S-P Associates v. City of Raleigh, 298 N.C. 207, 222, 258 S.E.2d 444, 454 (1979)(citation omitted).
As with any quasi-judicial decision, a decision on a certificate of appropriateness must be based upon competent, relevant, substantial evidence in the record. The record is composed of the application, any staff analysis or reports, testimony and documents presented at the evidentiary hearing, and other related documents. Additionally, the preservation statutes specifically highlight the role and usefulness of site visits and expert opinion in the decision-making process. “As part of its review procedure, the commission may view the premises and seek the advice of the Division of Archives and History or such other expert advice as it may deem necessary under the circumstances.” G.S. § 160A-400.9(d).
The incongruity standard does not grant the preservation commission “untrammeled authority to compel individual property owners in the Historic District to comply with whatever arbitrary or subjective views the members of the Commission might have as to how property in the district should be maintained or developed.” A-S-P Associates v. City of Raleigh, 298 N.C. 207, 221, 258 S.E.2d 444, 453 (1979). A decision to grant or deny a COA must be framed within the character of the district and based on evidence in the record.
North Carolina courts have ruled that when a preservation commission decision departs from the framework of historic standards and guidelines, that decision is arbitrary and will not stand. In Sanchez v. Town of Beaufort, for example, the court disapprovingly noted that the “height requirement was not reached on the basis of any particular determining principle. Rather, each [commission] member reached what he or she considered an appropriate height based on their own personal preferences.” 211 N.C. App. 574, 581, 710 S.E.2d 350, 355 (2011).
Well five feet (5′) would be if you had a . . . This is his determination, with a ten foot (10′) ceiling downstairs, and a nine foot (9′) ceiling upstairs, if you had eight foot (8′) ceilings, that’s three feet (3′). . . . And then, if the duct work was to be relocated, that’s two more feet. So that would be five feet (5′) without a lot of material changes. Now it could be a different number, but I’m just throwing that out.
211 N.C. App. 574, 581, 710 S.E.2d 350, 355 (2011)(emphasis added by court).
The court was clear: “Since the twenty-four foot height requirement was established by each member of the [commission] without the use of any determining principle from the [design] guidelines, it was clearly arbitrary.” Sanchez v. Town of Beaufort, 211 N.C. App. 574, 582, 710 S.E.2d 350, 355 (2011).
To be sure, determinations about certificates of appropriateness are not simple, objective determinations—they require judgment from the decision-makers. That is why COA decisions require quasi-judicial procedures.
That said, the establishment of the historic district and the evidence in the record guide the decision. At the time of establishing a historic district, the local government must submit a report to the SHPO. For historic landmarks, the ordinance must describe, among other things, the integral elements of the landmark. Before it acts on a COA application, the preservation commission must adopt principles and guidelines—design guidelines. Additionally, when a property owner seeks a COA, the preservation commission must base its decision on the standards establishing the special character and on evidence in the record—the application, the testimony, and other information obtained through the evidentiary hearing. If a decision veers from those standards and evidentiary record, it may be overturned as arbitrary and capricious.


JOSEPH JORDAN vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, CEDAR JUNCTION.
Present: BROWN, CYPHER, & KAFKER, JJ.
CIVIL ACTION commenced in the Superior Court Department on June 22, 1998.
The case was heard by Charles M. Grabau, J., on a motion for summary judgment.
Nancy Ankers White, Special Assistant Attorney General, & Thomas E. Abruzzese for the defendant.
unsuccessful appeal to the superintendent, the plaintiff brought this complaint in the Superior Court challenging the sufficiency of the evidence supporting the guilty findings. The trial judge allowed the superintendent's motion for summary judgment. In these circumstances, where the hearing officer for the prison could not himself decide whether the plaintiff even had knowledge of the contraband, we reverse.
picked the newspaper up off the floor. Upon inspection, Officer Shugrue found within the folds of the newspaper an eight and one-half inch piece of flat stock unsharpened metal. The plaintiff denied any knowledge of, or intent to possess, the contraband. Further, Balsavich, in an affidavit, admitted his knowledge of the contraband and made exculpatory statements concerning the plaintiff.
Later that day, Officer Shugrue filed a disciplinary report accusing the plaintiff of violating 103 Code Mass. Regs. § 430.24(2), (15), and (33) (1993). [Note 3] This report designated the offenses as "Major." [Note 4] A disciplinary hearing was held on April 7, 1998, at which the evidence submitted consisted of Officer Shugrue's testimony, his typed disciplinary report, the affidavit of inmate Balsavich, and the plaintiff's testimony.
The plaintiff appealed the hearing officer's guilty findings to the Superintendent of M.C.I., Cedar Junction, who denied the appeal. The plaintiff filed a complaint in the Superior Court challenging the guilty findings of his disciplinary hearing. The defendant's summary judgment motion was allowed by the trial judge without a hearing. Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974).
384 Mass. 559 , 568-569 (1981). It is also the "board's exclusive function to weigh the credibility of the witnesses and to resolve factual disputes between [the inmate's] testimony and that of the correction officer." Id at 295.
The Cepulonis case presents an instructive application of the methodology for reviewing the sufficiency of evidence justifying a disciplinary board's decision regarding possession of contraband in prison. In that case, two correction officers were conducting a routine check of an inmate's room when they came across screwdrivers, wire cutters, pipe sections, and other contraband. Id. at 293-294. The prison disciplinary board found Cepulonis guilty of possessing escape equipment. Id. at 292. On appeal, he argued that there was insufficient evidence to support the conclusion that certain items were actually escape equipment, or to show that he possessed the items that were found hidden in a window frame. Id. at 294. In that case, this court found it appropriate for the prison disciplinary board to "look at the entire situation, in the context of the prison environment, to decide whether materials were being amassed which might aid an escape." Id. at 294. The court held that "the board could infer, based on the nature and probable use of the items seized, . . . [the inmate's] admission to possession of the other contraband discovered, and the length of time he had occupied the room, that [the inmate] knew of, and had control over, the [contraband items]." Ibid. See Puleio v. Commissioner of Correction, 52 Mass. App. Ct. at 305-306 (in case in which inmate claimed he could not be found guilty because he did not knowingly possess solder or intend to evade prison rules, knowledge and intent were inferred from evidence that solder was in the inmate's jacket, and inmate admitted that he had probably brought tool with him from another correctional institution). Compare Commonwealth v. Deagle, 10 Mass. App. Ct. 563 , 567 (1980).
clarity in the hearing officer's findings concerning whether the plaintiff ever handled the newspaper, (4) Shugrue's immediate entry into the cell and removal of the metal, and (5) Balsavich's own reasons for disposing of the weapon quickly and surreptitiously to avoid discipline.
We are mindful that where "the testimony before the board could lead to different inferences, '[a] court may not displace . . . [the] board's choice between two fairly conflicting views . . . .' " Cepulonis, 15 Mass. App. Ct. at 295, quoting from Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516 , 521 (1971). If the hearing officer, based on his own credibility determinations and review of "the entire situation  in the context of the prison environment" found that the plaintiff had knowledge of, and control over the weapon, this court would be bound to show great deference to that decision. Cepulonis, supra at 294-295. Contrast Wightman v. Superintendent, Mass. Correctional Inst., Walpole, 19 Mass. App. Ct. at 446-447 (uninformed belief that inmate possessed "Angel Dust" was insufficient to affirm summary judgment in favor of Department of Correction).
Here, however, the hearing officer made no such finding. He purported to find that the plaintiff chose, apparently by accepting or at least receiving the newspaper from the runner, to have the weapon in his "possession." He was not, however, prepared to conclude that the plaintiff intended to receive the piece of metal or even that he knew he had received it. Furthermore, the hearing officer did not decide how the plaintiff received the newspaper, i.e., was it put in his hand or just dropped through the slot. The plaintiff's handling of the newspaper, if it had been found to occur, might have supported a finding of greater interaction with the other inmate and perhaps knowledge or at least suspicion based on the weight of the object. This omission is of some significance.
circumstances, find that the plaintiff had knowledge of the weapon, we do not defer to the prison officials' decision to discipline the plaintiff for possession of contraband.
The judgment in favor of the defendant is vacated. Within thirty days of the issuance of the rescript, the defendant will inform the judge of the Superior Court whether he proposes to reinstitute a hearing before a disciplinary board to offer additional proof. Wightman v. Superintendent, Mass. Correctional Inst., Walpole, 19 Mass. App. Ct. at 447. If not, the plaintiff may move for relief, including expungement of the disciplinary report, the hearing officer's decision, and all references thereto.
[Note 1] How the plaintiff received the newspaper is, as explained below, unclear.
[Note 2] The trial judge notes that "there is a conflicting view on the manner the newspaper entered into the possession of the plaintiff. The testimony of Officer Shugrue at the hearing states that Balsavich 'handed' the newspaper to plaintiff. The D-report states that Balsavich placed the newspaper on the floor of the plaintiff's cell."
[Note 3] The disciplinary offenses that the plaintiff was charged with under 103 Code Mass. Regs. § 430.24 were: "(2) Violating any departmental rule or regulation, or any other rule, regulation, or condition of an institution or community based program"; "(15) Possession, manufacture, or introduction of a gun, firearm, explosive, ammunition, weapon, sharpened instrument, knife or tool"; and "(33) Attempting to commit any of the above offenses, making plans to commit any of the above offenses or aiding another person to commit any of the above offenses shall be considered the same as the commission of the offense itself."
[Note 4] According to 103 Code Mass. Regs. § 430.09(4) (1993): "In designating the offense as a minor or major matter, the disciplinary officer may consider the following factors: (a) Threat to institutional security; (b) Repetitiveness; (c) Extent of harm done; and (d) Mitigating circumstances." The proceedings in a "Major" matter are held pursuant to 103 Mass. Code Regs. § 430.11 (1993).
[Note 5] Ancillary implications of this guilty finding referenced by the plaintiff include the possibility that his parole eligibility status could be affected, and restrictions could be placed on work opportunities within the facility.
[Note 6] While 42 U.S.C. § 1983, is mentioned, the plaintiff fails to develop any argument whatsoever under this statute; therefore, pursuant to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), this claim has been effectively waived. See Baird v. Massachusetts Bay Transp. Authy., 32 Mass. App. Ct. 495 , 499 (1992).


Keywords: re: Reported Opinion: Equal Access to Justice Act, 28 U.S.C. § 2412; Attorneys Fees and Reasonable Expenses.
Keywords: re: 28 U.S.C. § 1495; 28 U.S.C. § 2513; Motion to Dismiss; ProSe.
REPORTED OPINION. Signed by Judge Susan G. Braden.
Keywords: re: Comprehensive Environmental Response,Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.;Damages Caused By Breach Of Contract;Federal Rules of Evidence (FRE) 702 (Experts); Remand.
REPORTED OPINION/ORDER issued under seal on 12/14/2016. No redactions were proposed by the parties. Thus, the sealed and public versions of this opinion are identical, except for the publication date and footnote 1. Signed by Senior Judge Lynn J. Bush.
PUBLIC OPINION and ORDER on MOTION for Judgment on the Administrative Record. Signed by Judge Elaine D. Kaplan.
Keywords: re: Reported Opinion; Bid Protest; Solicitation Requirements; Redaction; Negotiated Procurement; Non-Conforming Proposal; Minor Informality or Irregularity.
REDACTED MEMORANDUM OPINION and ORDER denying Motion for Judgment upon the Administrative Record; denying, as moot,  Motion to Dismiss - Rule 12(b)(1); granting  Motion for Judgment upon the Administrative Record; granting  Motion for Judgment upon the Administrative Record; granting  Motion for Leave to File Sur-Reply; denying  Motion to Supplement the Administrative Record; denying  Motion for Judgment on the Administrative Record; granting  Motion to Seal Document. Signed by Judge Lydia Kay Griggsby.
Keywords: Pre-Award Bid Protest; Judgment upon the Administrative Record, RCFC 52.1; Organizational Conflict of Interest; Supplementing the Administrative Record, re: Redacted Memorandum Opinion and Order.
REPORTED OPINION The Clerk is directed to enter judgment. Signed by Judge Susan G. Braden. (rgh) Copy to parties. Modified on 1/12/2017 - corrected pdf (jt1).
Keywords: re:41 U.S.C. §§ 601-613 (2006); 41 U.S.C. §§ 7101-7109 (2011) (Contract Disputes Act); 48 C.F.R. 31.105, 31.202, 31.203, 52.242-14, 52.243-4; Breach of Contract; Equitable Adjustment; Federal Rule of Evidence 702, 703 (Experts); Federal Rule of Evidence 802 (Hearsay); Show Cause Order.
REPORTED OPINION granting Motion for Summary Judgment; denying  Motion for Partial Summary Judgment. The Clerk is directed to enter judgment. Signed by Judge Mary Ellen Coster Williams. (TF3) Copy to parties.
REPORTED OPINION. Signed by Judge Mary Ellen Coster Williams. (TF3) Copy to parties.
REPORTED OPINION granting Motion to Dismiss - Rule 12(b)(1) The Clerk is directed to enter judgment. Signed by Senior Judge Nancy B. Firestone.
REPORTED OPINION The Clerk is directed to enter judgment for defendant. Signed by Senior Judge Eric G. Bruggink.
REPORTED OPINION denying Motion in Limine; granting  Cross Motion. Signed by Judge Marian Blank Horn.
Keywords: re: Order on Motion in Limine, Order on Cross Motion, Reported Opinion: Water Rights; Physical vs. Regulatory Takings; Endangered Species Act; Motions in Limine.
REPORTED OPINION denying Motion to Dismiss - Rule 12(b)(1) and (6). Signed by Judge Elaine D. Kaplan.
Keywords: re: Subject Matter Jurisdiction; Contract Disputes Act; Differing Site Conditions; Misrepresentation; Covenant of Good Faith and Fair Dealing; Breach of Contract.
Keywords: re: Reported Opinion: Motion to Dismiss; Subject Matter Jurisdiction; Failure to State a Claim; Breach of Contract; Copyright Infringement; Uniform Trade Secrets Act; 28 U.S.C. § 1498(b); 17 U.S.C. § 501.
REPORTED OPINION denying Application for Attorney Fees. Signed by Judge Mary Ellen Coster Williams. (TF3) Copy to parties.
Keywords: re: Pro se; RCFC 12(b)(1); RCFC 12(b)(6); Lack of Subject Matter Jurisdiction; Res Judicata; Takings.
Keywords: re: Reported Opinion: Trial; Tax; 26 U.S.C. § 6672; Responsible Person; Willfulness.
Keywords: re: Subject Matter Jurisdiction: Pro Se Complaint; Tax Refund; Administrative Refund Request; Informal Claim Doctrine; I.R.C. § 6511; I.R.C. § 6532; Statute of Limitations.
REPORTED ORDER. Signed by Judge Victor J. Wolski. (ar1) Copy to parties.