File #: Int 0385-2014 Version: * A B C Name: Indoor asthma allergen hazards in residential dwellings and pest management, and to repeal section 27-2018 of the administrative code relating to rodent and insect eradication and extermination.
Summary: This bill sets forth owners’ responsibilities in relation to indoor allergen hazards. The bill also establishes classifications of violations for indoor allergen hazards and dates of correction for such violations. The bill would also require the Department of Health and Mental Hygiene (DOHMH) to report on activities to educate physicians and health care providers who treat persons with asthma about the role of indoor allergens in asthma exacerbation, and also requires DOHMH to take certain measures to educate persons about indoor allergen hazards.
Section 1. Section 27-2018 of the administrative code of the city of New York is REPEALED.
§27-2017.1 Owners' responsibility to remediate.
§27-2017.2 Owners' responsibility to notify occupants and to investigate.
§27-2017.3 Violation for visible mold.
§27-2017.5 Removal of asthma triggers in a dwelling unit upon turnover.
§27-2017.7 Department implementation and enforcement.
§27-2017.10 Department removal of violations placed by the department of health and mental hygiene.
§27-2017.12 Waiver of benefit void.
[(a)Eradication means the elimination of rodents or insects and other pests from any premises through the use of traps, poisons, fumigation or any other method of extermination.
Common area. The term “common area” means a portion of a multiple dwelling that is not within a dwelling unit and that is regularly used by occupants for access to and egress from any dwelling unit within such multiple dwelling, as well as commonly used areas such as a laundry room.
[(c)] Harborage. The term “harborage” [Harborage] means any condition which provides shelter or protection for [rodents or insects and other] pests.
Indoor allergen hazard. The term “indoor allergen hazard” means any indoor infestation of cockroaches, mice, or rats or conditions conducive to such infestation, or an indoor mold hazard.
Indoor mold hazard. The term “indoor mold hazard” means any condition of mold growth on an indoor surface, building structure or ventilation system, including mold that is within wall cavities, that is likely to cause harm to a person or that has been cited as a violation by the department.
Integrated pest management. The term “integrated pest management” means ongoing prevention, monitoring and pest control activities and reasonable efforts to eliminate pests from any building, lot, or dwelling. This includes, but is not limited to, reasonable efforts to eliminate of harborages and conditions conducive to pests, the use of traps, and, when necessary, the use of pesticides.
Pest. The term “pest” means any unwanted member of the Class Insecta, including, but not limited to houseflies, lice, bees, cockroaches, moths, silverfish, beetles, bedbugs, ants, termites, hornets, mosquitoes and wasps, and such members of the Phylum Arthropoda as spiders, mites, ticks, centipedes and wood lice, or of the Order Rodentia, including but not limited to mice, Norway rats, and any other unwanted plant, animal or fungal life that is a pest because it is destructive, annoying or a nuisance.
Remediation or remediate. The term “remediation” or “remediate” means reasonable efforts to eradicate pests in accordance with section 27-2017.8 and reasonable efforts to eradicate indoor mold hazards in accordance with rules promulgated pursuant to section 27-2017.9.
Underlying defect. The term “underlying defect” means a condition that causes an indoor mold hazard, such as a water leak or water infiltration from plumbing or defective masonry pointing or other moisture condition, or causes an infestation of pests, including holes or entryway paths for pests.
Visible mold. The term “visible mold” means mold that is readily identifiable by visual inspection, including mold that is behind furniture or other interior obstructions.
§27-2017.1 Owners' responsibility to remediate. The existence of an indoor allergen hazard in any dwelling unit in a multiple dwelling is hereby declared to constitute a condition dangerous to health. An owner of a dwelling shall take reasonable measures to keep the premises free from pests and other indoor allergen hazards and from any condition conducive to indoor allergen hazards, and shall take reasonable measures to prevent the reasonably foreseeable occurrence of such a conditions and shall expeditiously take reasonable measures to remediate such conditions and any underlying defect, when such underlying defect exists, consistent with section 27-2017.8 and the rules promulgated pursuant to section 27-2017.9.
§27-2017.2 Owners' responsibility to notify occupants and to investigate. a. The owner of a multiple dwelling shall cause an investigation to be made for indoor allergen hazards in all occupied dwelling units and in common areas as set forth on subdivision b of this section.
b. Investigations shall be undertaken at least once a year and more often if necessary, such as when, in the exercise of reasonable care, an owner knows or should have known of a condition that is reasonably foreseeable to cause an indoor allergen hazard, or an occupant makes a complaint concerning a condition that is likely to cause an indoor allergen hazard or requests an inspection, or the department issues a notice of violation or orders the correction of a violation that is likely to cause an indoor allergen hazard.
c. All leases offered to tenants or prospective tenants in such multiple dwellings shall contain a notice, conspicuously set forth therein, which advises tenants of the obligations of the owner and tenant as set forth in this section. Such notice shall be approved by the department, and shall be in English and in the covered languages set forth in section 8-1002. The owner of such multiple dwelling shall provide the tenant or prospective tenant of such dwelling unit with the pamphlet developed by the department of health and mental hygiene pursuant to section 17-199.7. Such pamphlet shall be made available in English and in the covered languages set forth in section 8-1002.
1. The presence of visible mold in an amount measuring in total less than ten square feet in a room within a dwelling unit shall constitute a non-hazardous violation.
2. The presence of visible mold in an amount measuring in total between ten square feet and thirty square feet in a room within a dwelling unit shall constitute a hazardous violation.
(b) The owner has submitted a false certification of correction of a non-hazardous violation issued pursuant to paragraph one of this subdivision and the mold condition that was the cause of such non-hazardous violation continues to be present in the same room in the dwelling unit.
4. The presence of visible mold in an amount measuring in total greater than or equal to thirty square feet in a room within a dwelling unit, shall constitute an immediately hazardous violation.
(b) The owner has submitted a false certification of correction of a hazardous violation issued pursuant to paragraph two of this subdivision and the mold condition that was the cause of such hazardous violation continues to be present in the same room in the dwelling unit.
b. The presence of visible mold in an amount measuring greater than or equal to thirty square feet in any one room or any one level of a hallway of a common area or fifty square feet in the aggregate shall constitute a hazardous violation. The presence of visible mold in an amount measuring less than thirty square feet in any one room or any one level of a hallway of a common area or fifty square feet in the aggregate shall constitute a non-hazardous violation.
c. 1. The date for correction of a non-hazardous or hazardous violation pursuant to subdivisions a or b of this section shall be as set forth in subdivision c of section 27-2115.
2. The date for correction of an immediately hazardous violation pursuant to subdivision a of this section shall be twenty-one days after service of the notice of violation as provided on such notice.
3. The department may postpone the date by which an immediately hazardous violation issued pursuant to subdivision a of this section shall be corrected upon a showing, made within the time set for correction in the notice, that prompt action to correct the violation has been taken but that full correction cannot be completed within the time provided because of serious technical difficulties, inability to obtain necessary materials, funds or labor, inability to gain access to the dwelling unit wherein the violation exists, or such other portion of the building as may be necessary to make the required repair, provided, however, that where such immediately hazardous violation has been issued as a result of a reinspection of a hazardous violation that remained uncorrected, no postponement shall be granted. Such postponement shall not exceed fourteen days from the date of correction set forth in the notice of violation. The department may require such other conditions as are deemed necessary to correct the violation within the time set for the postponement.
§27- 2017.4. Violation for pests a. When the department makes the determination that any premises are infested by pests other than cockroaches, mice, or rats, it may order such eradication measures and work practices as the department deems necessary. Such violation shall be a hazardous violation pursuant to section 27-2115.
b. Notwithstanding the provisions of subdivision a of this section, the presence of cockroaches, mice or rats in any room in a dwelling unit in a multiple dwelling or a common area shall constitute an immediately hazardous violation of this code as provided in this section and an owner shall comply with the work practices set out in subdivision a of section 27-2017.8 when correcting a such violation.
c. The date for correction of an immediately hazardous violation for cockroaches, mice, or rats shall be twenty-one days after service of the notice of violation as provided on such notice.
d. The department may postpone the date by which an immediately hazardous violation for cockroaches, mice, or rats shall be corrected upon a showing, made within the time set for correction in the notice, that prompt action to correct the violation has been taken but that full correction cannot be completed within the time provided because of serious technical difficulties, inability to obtain necessary materials, funds or labor, inability to gain access to the dwelling unit wherein the violation exists, or such other portion of the building as may be necessary to make the required repair. Such postponement shall not exceed fourteen days from the date of correction set forth in the notice of violation. The department may require such other conditions as are deemed necessary to correct the violation within the time set for the postponement.
§27-2017.5 Removal of asthma triggers in a dwelling unit upon turnover. a. Prior to the reoccupancy of any vacant dwelling unit in a multiple dwelling, the owner shall, within such dwelling unit, remediate all visible mold and pest infestations, and any underlying defects in such dwelling unit, and thoroughly clean and vacuum all carpeting and furniture provided by such owner to incoming occupants, consistent with the work practices set out in subdivision a of section 27-2017.8 and the rules promulgated pursuant to section 27-2017.9.
b. The owner shall certify in writing to the incoming tenant or occupant of a unit of a multiple dwelling, in such form as may be promulgated by the department, that the unit is in compliance with subdivision a of this section.
§27-2017.6 Department inspections. a. When entering a dwelling unit in a multiple dwelling for the purpose of investigating the existence of any violation of the code, the department shall make diligent efforts to ascertain whether there are cockroaches, mice, rats, or visible mold in the dwelling unit and shall inquire of the occupant whether cockroaches, mice, rats or mold are present in the dwelling unit. When performing such inspection, the department need only inspect those portions of the dwelling unit where furniture or other furnishings do not obstruct the view of a surface, except when there is visible evidence that causes the department to believe that the obstructed surface has visible mold or cockroaches, mice, or rats.
b. In any dwelling unit in a multiple dwelling the department shall conduct an inspection pursuant to subdivision a of this section no later than thirty days after the department's receipt of a complaint describing a condition that would constitute a violation under subdivision a of section 27-2017.3 or subdivision b of section 27-2017.4. Where the department attempts to perform an inspection of a dwelling unit within the time period required by this subdivision but is unable to gain access, the department shall provide written notice to the occupant of such dwelling unit that no further attempts at access shall be made unless a new complaint is submitted.
c. Where, upon conducting an inspection, the department determines the existence of a condition constituting a violation of this article, the department shall serve a notice of violation within ten additional days of such inspection.
d. The pamphlet developed by the department of health and mental hygiene pursuant to section 17-199.7 shall be left at the premises of the dwelling unit at the time of an inspection made by the department pursuant to this section. Such pamphlet shall be delivered by the department in conjunction with all notices of violation issued pursuant to paragraph one of subdivision o of section 27-2115. Failure to include such pamphlet with such notices of violation shall not render null and void the service of such notices of violation. Such pamphlet shall also be made available to any member of the public upon request.
e. During the period from October first through May thirty-first, or in the event of disaster, the time for the department to conduct an inspection as provided in subdivision b of this section may be extended if the department resources so require. Notwithstanding any other provision of law, failure by the department or the department of health and mental hygiene to comply with any time period provided in this article or section 27-2115 relating to responsibilities of the department and the department of health and mental hygiene, shall not render null and void any notice of violation issued by the department or the department of health and mental hygiene pursuant to such article or section, and shall not provide a basis for defense or mitigation of an owner's liability for civil penalties for violation of such article.
§27-2017.7 Department implementation and enforcement. a. The department shall provide appropriate training for indoor allergen inspection and for supervisory personnel. The department shall provide for the continuing education of inspection and supervisory personnel regarding changes in applicable federal, state, and local laws and guidance documents and require that each such individual has successfully demonstrated knowledge of those materials and the requirements of this article.
b. The department, with the approval of the department of health and mental hygiene, shall promulgate a comprehensive written procedure to guide department personnel in implementing and enforcing this article. Such procedures shall include a methodology and a form to be used by department personnel when conducting an inspection to carry out and record an inspection pursuant to section 27-2017.6.
(c) compliance with the rules promulgated by the department pursuant to section 27-2017.9.
3. eliminate sources of water for pests by repairing drains, faucets, and other plumbing materials that accumulate water or leak. Remove and replace saturated materials in interior walls.
4. The use of pesticides shall not substitute for pest management measures described in this section. Any pesticide applied shall be applied by a pest professional licensed by New York state department of environmental conservation (DEC).
b. An owner's certification of correction of a pest violation that was issued pursuant to subdivision a of section 27-2017.4 shall, where applicable, include an affidavit affirming that the work practices required pursuant to subdivision a of this section were properly performed. An owner's certification of correction of a pest violation that was issued pursuant to subdivision b of section 27-2017.4 shall include an affidavit affirming that the work practices required pursuant to subdivision a of this section were properly performed. The department may also by rule require additional documentation for certification of correction of a pest violation or a violation of subdivision b of 27-2017.4.
§27-2017.9. Work practices. a. The department shall promulgate rules, with the approval of the department of health and mental hygiene, establishing work practices when assessing and correcting indoor mold hazards, and underlying defects including violations cited by the department pursuant to this article. The department shall from time-to-time review and revise such rules based upon, among other things, the latest scientific data and developing federal, state, and local laws and industry standards.
8. leave the work area dry and visibly free from mold, dust, and debris.
The work practices shall also include a requirement that when correcting an indoor mold hazard violation issued pursuant to this article, or when assessing or correcting an indoor mold hazard identified as a result of an inspection by an owner, such assessments or work shall be performed in compliance with article 32 of New York state labor law and any rules promulgated thereunder, where applicable.
c.An owner's certification of correction of an indoor mold hazard violation issued pursuant to this article shall include an affidavit affirming that the work practices required pursuant to this section were properly performed. The department may also by rule require additional documentation for certification of correction of an indoor mold hazard violation.
§27-2017.10 [Department removal of] Violations placed by the department of health and mental hygiene. Where the owner of the dwelling or relevant dwelling unit within such dwelling fails to comply with an order of the department of health and mental hygiene to correct a violation placed by the department of health and mental hygiene pursuant to section 17-199.6, the department of health and mental hygiene shall certify such conditions to the department of housing preservation and development within ten days after the date set for correction in said order. The department of housing preservation and development may take such enforcement action as it deems necessary, including performing or arranging for the performance of work to correct the certified condition.
6. A statistical profile with geographic indexing, such as by community district, council district, and/or zip code, of multiple dwellings in which violations are placed, indicating the ages and general condition of the multiple dwellings and other factors relevant to the prevalence of indoor mold hazards and pests, which may include asthma rates in the relevant community, outstanding violations, and emergency repair charges; and.
7. The number of trainings conducted for owners and building maintenance personnel on the appropriate work methods for controlling and removing indoor allergen hazards in rental housing.
b. The department of health and mental hygiene shall annually prepare and publically post on the Environmental and Health Data Portal a statistical profile on asthma rates in the population, including asthma-related hospitalizations and asthma-related emergency department visits, city wide and by neighborhoods, based on the most recently available data. These data shall be utilized by the department to target intervention efforts to reduce the prevalence of asthma allergens.
§27-2017.12 Waiver of benefit void. a. No owner may seek to have an occupant of a dwelling unit waive the benefit or protection of any provision of this article. Any agreement by the occupant of a dwelling unit purporting to waive the benefit or protection of any provision of this article is void. Any owner who violates this section, or the rules promulgated hereunder, shall be guilty of a misdemeanor punishable by a fine of up to five hundred dollars or imprisonment for up to six months or both. In addition, any owner who violates this section shall be liable for a civil penalty of not more than five hundred dollars per violation.
b. Notwithstanding any other provision of this article, nothing herein shall be construed to alter existing or future agreements which allocate responsibility for compliance with the provisions of this article between a tenant shareholder and a cooperative corporation or between the owner of a condominium unit and the board of managers of such condominium.
c. The provisions of this article, other than section 27-2017.10, shall not apply to a dwelling unit in a multiple dwelling where (i) title to such multiple dwelling is held by a cooperative housing corporation or such dwelling unit is owned as a condominium unit, and (ii) such dwelling unit is occupied by the shareholder of record on the proprietary lease for such dwelling unit or the owner of record of such condominium unit, as is applicable, or the shareholder's or record owner's family.
d. The provisions of this article shall not apply to dwelling units owned and operated by the New York city housing authority.
(o) (1) Notwithstanding any other provision of law, when the department serves a notice of violation to correct and certify a condition that constitutes a violation of article four of subchapter two of this chapter, the notice of violation shall specify the date by which the violation shall be corrected as provided in such article, and the procedure by which the owner, for good cause shown pursuant to this subdivision, may request a postponement. The notice of violation shall further specify that the violation shall be corrected in accordance with section 27-2017.8 and the rules established pursuant to section 27-2017.9, where applicable. The notice of violation shall be served by personal delivery to a person in charge of the premises or to the person last registered with the department as the owner or agent, or by registered or certified mail, return receipt requested, or by certified mail with proof of delivery, to the person in charge of the premises or to the person last registered with the department as the owner or agent; provided that where a managing agent has registered with the department, such notice of violation shall be served on the managing agent. Service of the notice of violation shall be deemed completed five days from the date of mailing. Notification, in a form to be determined by the department, of the issuance of such violation shall be sent simultaneously by regular mail to the occupant at the dwelling unit that is the subject of such notice of violation.
(2) Notwithstanding any other provision of law, the notice of violation shall direct that the correction of each violation cited therein shall be certified to the department. Such certification shall be made in writing or electronically, under oath by the registered owner, a registered officer or director of a corporate owner or by the registered managing agent. Such certification shall include a statement that the violation was corrected in compliance with section 27-2017.8, where applicable, and the rules established pursuant to section 27-2017.9, where applicable. All certifications shall be delivered to the department and acknowledgment of receipt therefore obtained or shall be mailed to the department by certified or registered mail, return receipt requested, no later than five days after the date set for correction, or submitted electronically within five days after the date set for correction, and shall include the date when each violation was corrected. Such certification of correction shall be supported by a sworn statement saying that the violation was properly corrected by the person who performed the work if performed by an employee or agent of the owner. Notification of such certification shall be mailed to the complainant by the department not more than twelve full calendar days from the date of receipt of such certification by the department. Failure to file such certification shall establish a prima facie case that such violation has not been corrected.
(3) Whenever the department shall issue a notice of violation to correct a condition that constitutes a hazardous or immediately hazardous violation of subdivision a of section 27-2017.3 the department shall conduct a final inspection to verify that the violation has been corrected. Where the department determines that the violation has not been corrected, the department may take such enforcement action as is necessary, including performing or arranging for the performance of the work to correct the violation.
(4) Notwithstanding any other provision of law, a person making a false certification of correction of a violation issued pursuant to article four of subchapter two of this chapter, in addition to any other civil penalty, shall be subject to a civil penalty of not less than two thousand dollars nor more than ten thousand dollars for each false certification made, recoverable by the department in a civil action brought in a court of competent jurisdiction. If the person making such false certification is an employee of the owner then such owner shall be responsible for such civil penalty. In addition, any such person making a false certification of correction shall be guilty of a misdemeanor punishable by a fine of up to one thousand dollars or imprisonment for up to one year or both.
(v) That the violation giving rise to the action was caused by the act of negligence, neglect or abuse of another not in the employ or subject to the direction of the owner, except that the owner shall be precluded from showing in defense or mitigation of such owner's liability for civil penalties evidence of any acts occurring, undertaken, or performed by any predecessor in title prior to the owner taking control of the premises. Where the aforesaid allegations are made by way of mitigation of penalties, the owner shall show, by competent proof, pertinent financial data and efforts made to obtain necessary materials, funds or labor or to gain access, or to obtain a permit or license and such other evidence as the court may require. If the court finds that sufficient mitigating circumstances exist, it may remit all or part of any penalties arising from the violations, but may condition such remission upon a correction of the violation within a time period fixed by the court.
§17-199.5 Encouragement of physician referrals for indoor allergen hazards. a. The department shall report to the council no later than 18 months from the effective date on activities it has undertaken to educate physicians and other health care providers who treat persons with asthma about the role of indoor allergens in asthma exacerbation and the availability of inspections for asthma triggers in their patients’ primary residence by the department and the department of housing preservation and development, and on any mechanism they have to refer to the department or the department of housing preservation and development, with consent, the contact information for patients who report these conditions in their primary residence. The report shall describe what was done following such referrals, and what the outcomes were of any that were made and received during this period.
§17-199.6 Investigations of indoor allergen hazards in dwellings of persons with medically diagnosed moderate persistent or severe persistent asthma. a. The department shall establish procedures to permit doctors, nurses, or other health professionals, upon the consent of their patients, to request a department investigation of possible indoor allergen hazards in dwellings where persons reside who have been medically diagnosed with moderate persistent or severe persistent asthma. Such procedures shall provide for the referral to the department of housing preservation and development of such requests that would be subject to section 27-2017.6. The procedures shall also provide for an investigation to be made when the department is notified that a person who has been medically diagnosed with moderate persistent or severe persistent asthma is residing in a dwelling with possible indoor allergen hazards not otherwise subject to enforcement by the department of housing preservation and development under section 27-2017.6. Such indoor allergen hazards include, but are not limited to, mold that is not readily observable to the eye, including mold that is hidden within wall cavities, construction dust or such other conditions as the department shall from time-to-time determine by rule are indoor allergen hazards.b. In the event that the department determines that an indoor allergen hazard exists, the department shall order the owner to correct the condition and the underlying causes of such a condition within twenty-one days, in a manner and under such safety conditions as it may specify, including the integrated pest management practices in section 27-2017.8 and the work practices established pursuant to section 27-2017.9.
c. In the event that the department determines that the owner or other person having the duty or liability to comply with an order issued pursuant to this section fails to substantially comply therewith within twenty-one days after service thereof, the department shall, in accordance with section 27-2017.10, refer such order to the department of housing preservation and development. The department of housing preservation and development shall take such enforcement action as is necessary, including performing or arranging for the performance of the work to correct the certified condition.
d. The department shall report to the council and mayor no later than 24 months from the effective date on activities it has undertaken under this section as they relate to adults with asthma diagnoses, including but not limited to the number adult asthma referrals by type to the department for inspection, the number and types of orders issued to property owners by the department as a result of adult asthma referrals, and the number of apartments that have completed remediation for indoor asthma allergens as a result of adult asthma referrals. Upon submission of such report the agency may submit a recommendation to the council containing a proposed redefinition of “persons with medically diagnosed moderate persistent or severe persistent asthma” for the purposes of the provision of this article.
§17-199.7 Education about indoor allergen hazards. The department shall develop a pamphlet which shall be in English and in the covered languages set forth in section 8-1002, explaining the hazards associated with indoor allergens and describing tenant rights and owner responsibilities under this law, including safe work practices and mechanisms through which the public may report indoor allergen hazards in the home. Such pamphlet shall be made available in accordance with section 27-2017.6. Such pamphlet shall also be made available to any member of the public upon request. The department shall also develop a training curriculum for educating owners and building maintenance personnel on the appropriate work methods for controlling and removing indoor allergen hazards in rental housing, including integrated pest management. Such training curriculum shall also be made available to any member of the public upon request.
§17-199.8 Inspection by the department of unsafe work practices for indoor allergen remediation. The department shall respond to complaints of unsafe work practices related to the correction of indoor mold hazard violations that result in chemical vapors, dust, or other environmental hazards, and promptly refer complaints of unsafe pest control to the New York state department of environmental conservation.
§7. This local law shall take effect one year after its enactment, except that the commissioners of health and mental hygiene and housing preservation and development may take such measures as are necessary for its implementation, including the promulgation of rules, before such effective date.


When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to an IRS Federal Tax Lien?
the value of the property had declined so that the equity of the property was depleted by lienholder senior to the government.
The seminal case on this point is U.S. v Rodgers, 461 U.S. 677, 710-11 (1983). Rodgers held that the court could use discretion where necessary to protect the interest of a third party and listed factors to determine whether this limited discretion to not authorize the foreclosure should be used. Id. The Rodgers factors serve “to provide a framework under which it must justify a refusal to order a sale under § 7403.” U.S. v. Davenport, 106 F.3d 1333, 1338 (7th Cir. 1997). Even with respect to third parties, courts need not apply these factors before decreeing a sale under § 7403, consideration of these factors is “a matter of judicial grace.” Id.
With respect to equitable discretion in favor of taxpayers themselves, the Supreme Court in Rodgers declined to provide them such discretionary protection, stating it could “think of virtually no circumstances… in which it would be permissible to refuse to authorize a sale simply to protect the interests of the delinquent taxpayer himself or herself.” Rodgers, 461 U.S. at 709. This holding is far from dicta, as the Supreme Court declined to engage in an analysis similar to the one it used for determining whether to exercise the limited discretion with respect to a third party where Joerene Ingram (whose similar case was consolidated with Rodgers’) was subject to a joint lien for $283.33, plus interest, as she was not a third party. Id. at 712. The different outcome for a third party versus a delinquent taxpayer is stark, as the Supreme Court indicated that the simple act of Ingram’s payment of the nominal amount of the joint liability would allow it to use the discretionary analysis. Id.
Since the Supreme Court’s holding, in Rodgers, that the discretion to not authorize foreclosure is limited and to be used sparingly, taxpayers have routinely argued for the Rodgers holding to be used more expansively. See, e.g., Davenport, 106 F.3d 1338, n. 7. However, the Supreme Court Rodgers did not simply fail to consider justice as it may apply to a delinquent taxpayer because, in a footnote, it alluded that other options that do not amount to non-authorization of a foreclosure would suffice, including temporarily postponing a forced sale or making it subject to an upset price. In United States v. Moyer, for example, the District Court for the Northern District of California considered whether to stay its order of foreclosure, which was based on a stipulation by the parties, based upon the taxpayer’s showing that the value of the property had declined so that the equity of the property was depleted by lienholder senior to the government. United States v. Moyer, No. 07-00510, 2008 WL 3478063, 102 A.F.T.R. 2d RIA 5748 (N.D. Cal. Aug. 12, 2008).
The Moyer case relied on the holding in U.S. v. Boyd, 426 F.2d 477, 481 (5th Cir. 1957), that a decree of foreclosure would not be appropriate if senior lienholders exhaust the equity. While it is important to note that Boyd is a pre-Rodgers case (Rodgers, on certiorari from two consolidated cases, overruled the 5th circuit’s more extensive use of discretion), and its holding would be limited to the extent it went beyond the limits of Rodgers, the Moyer case is easily reconciled with Rodgers. In the Moyer case, the district court merely stayed its order to foreclose, which is an acceptable exercise to protect the interest of the taxpayer per note 39 in Rodgers. Id.
Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.


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NURHIDA JUHURI AMPATUAN, PETITIONER, VS. JUDGE VIRGILIO V. MACARAIG, REGIONAL TRIAL COURT, MANILA, BRANCH 37, DIRECTOR GENERAL AVELINO RAZON, JR., DIRECTOR GEARY BARIAS, PSSUPT. CO YEE M. CO, JR. AND POLICE CHIEF INSPECTOR AGAPITO QUIMSON, RESPONDENTS.
Before this Court is a Petition for Certiorari under Rule 65 of the Rules of Court assailing the Order dated 25 April 2008 of the Regional Trial Court (RTC) of Manila, Branch 37, in Special Proceeding No. 08-119132 which denied the petition for Habeas Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in behalf of her husband Police Officer 1 Basser B. Ampatuan (PO1 Ampatuan).
Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at Sultan Kudarat Municipal Police Station. On 14 April 2008, he was asked by his Chief of Police to report to the Provincial Director of Shariff Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1 Ampatuan to Superintendent Piang Adam, Provincial Director of the Philippine National Police (PNP) Maguindanao. PO1 Ampatuan was directed to stay at the Police Provincial Office of Maguindanao without being informed of the cause of his restraint. The next day, 15 April 2008, PO1 Ampatuan was brought to the General Santos City Airport and was made to board a Philippine Airlines plane bound for Manila. Upon landing at the Manila Domestic Airport, PO1 Ampatuan was turned over to policemen of Manila and brought to Manila Mayor Alfredo Lim by Police Director Geary Barias and General Roberto Rosales. A press briefing was then conducted where it was announced that PO1 Ampatuan was arrested for the killing of two Commission on Elections (COMELEC) Officials. He was then detained at the Police Jail in United Nations Avenue, Manila. Thereafter, PO1 Ampatuan was brought to inquest Prosecutor Renato Gonzaga of the Office of the City Prosecutor of Manila due to the alleged murder of Atty. Alioden D. Dalaig, head of the Law Department of the COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the Regional Headquarters Support Group in Camp Bagong Diwa, Taguig City.
Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva ordered the release for further investigation of PO1 Ampatuan. The Order was approved by the City Prosecutor of Manila. But Police Senior Superintendent Co Yee Co, Jr., and Police Chief Inspector Agapito Quimson refused to release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of Manila, Branch 37.
Private respondents had another version of the antecedent facts. They narrated that at around 7:08 o'clock in the evening of 10 November 2007, a sixty-four-year-old man, later identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal Department, was killed at the corner of M. H. Del Pilar and Pedro Gil Streets, Ermita, Manila. Investigation conducted by the Manila Police District (MPD) Homicide Section yielded the identity of the male perpetrator as PO1 Ampatuan. Consequently, PO1 Ampatuan was commanded to the MPD District Director for proper disposition. Likewise, inquest proceedings were conducted by the Manila Prosecutor's Office.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his Pre-Charge Evaluation Report against PO1 Ampatuan, finding probable cause to charge PO1 Ampatuan with Grave Misconduct (Murder) and recommending that said PO1 Ampatuan be subjected to summary hearing.
That on or about 7:08 in the evening of November 10, 2007, in M.H. Del Pilar and Pedro Gil St., Ermita, Manila, above-named respondent while being an active member of the PNP and within the jurisdiction of this office, armed with a cal .45 pistol, with intent to kill, did then and there willfully, unlawfully and feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC official on the different parts of his body, thereby inflicting upon the latter mortal gunshot wounds which directly cause (sic) his death.
Acts contrary to the existing PNP Laws rules and Regulations.
Reference: Memo from that Office dated April 15, 2008 re Arrest of PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers.
This pertains to the power of the Chief, PNP embodied in Section 52 of RA 8551, to place police personnel under restrictive custody during the pendency of a grave administrative case filed against him or even after the filing of a criminal complaint, grave in nature, against such police personnel.
In this connection, you are hereby directed to place PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers, under your restrictive custody.
On 19 April 2008, through a Memorandum Request dated 18 April 2008, respondent Police Director Geary L. Barias requested for the creation of the Summary Hearing Board to hear the case of PO1 Ampatuan.
PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of the Regional Director, NCRPO effective April 19, 2008. (Reference: Memorandum from CPNP dated 18 April 2008).
Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended that the case against PO1 Ampatuan be set for further investigation and that the latter be released from custody unless he is being held for other charges/legal grounds.
Armed with the 21 April 2008 recommendation of the Manila City's Prosecution Office, petitioner, who is the wife of PO1 Ampatuan, filed a Petition for the Issuance of a Writ of Habeas Corpus before the RTC of Manila on 22 April 2008. The petition was docketed as Special Proceeding No. 08-119132 and was raffled to Branch 37.
On 24 April 2008, finding the petition to be sufficient in form and substance, respondent Judge Virgilio V. Macaraig ordered the issuance of a writ of habeas corpus commanding therein respondents to produce the body of PO1 Ampatuan and directing said respondents to show cause why they are withholding or restraining the liberty of PO1 Ampatuan.
Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is being illegally detained by the respondents despite the order of release of Chief Inquest Prosecutor Nelson Salva dated April 21, 2008. They further claim that as of April 23, 2008, no administrative case was filed against PO1 Ampatuan.
Respondents, while admitting that to date no criminal case was filed against PO1 Ampatuan, assert that the latter is under restrictive custody since he is facing an administrative case for grave misconduct. They submitted to this Court the Pre-charge Evaluation Report and Charge Sheet. Further, in support of their position, respondents cited the case of SPO2 Manalo, et al. v. Hon. Calderon, G.R. No. 178920 claiming that habeas corpus will not lie for a PNP personnel under restrictive custody. They claim that this is authorized under Section 52, Par. 4 of R.A. 8551 authorizing the Chief of PNP to place the PNP personnel under restrictive custody during the pendency of administrative case for grave misconduct.
Petitioner countered that the administrative case filed against PO1 Ampatuan was ante-dated to make it appear that there was such a case filed before April 23, 2008.
The function of habeas corpus is to determine the legality of one's detention, meaning, if there is sufficient cause for deprivation or confinement and if there is none to discharge him at once. For habeas corpus to issue, the restraint of liberty must be in the nature of illegal and involuntary deprivation of freedom which must be actual and effective, not nominal or moral.
Granting arguendo that the administrative case was ante-dated, the Court cannot simply ignore the filing of an administrative case filed against PO1 Ampatuan. It cannot be denied that the PNP has its own administrative disciplinary mechanism and as clearly pointed out by the respondents, the Chief PNP is authorized to place PO1 Ampatuan under restrictive custody pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is a process done by the PNP and this Court has no authority to order the release of the subject police officer.
Lastly, anent the contention of the petitioner that the letter resignation of PO1 Ampatuan has rendered the administrative case moot and academic, the same could not be accepted by this Court. It must be stressed that the resignation has not been acted (sic) by the appropriate police officials of the PNP, and that the administrative case was filed while PO1 Ampatuan is still in the active status of the PNP.
WHEREFORE, premises considered, the petition for habeas corpus is hereby DISMISSED.
III. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT SHIRKED FROM ITS JUDICIAL DUTY TO ORDER THE RELEASE OF PO1 AMPATUAN FROM THE CUSTODY OF RESPONDENTS MAMANG PULIS.
Essentially, a writ of habeas corpus applies to all cases of illegal confinement or detention by which any person is deprived of his liberty.
SECTION 1. To what habeas corpus extends. - Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.
SEC 2. Who may grant the writ. - The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.
SEC. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.
The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it is, the writ cannot be issued. What is to be inquired into is the legality of a person's detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application.
Plainly stated, the writ obtains immediate relief for those who have been illegally confined or imprisoned without sufficient cause. The writ, however, should not be issued when the custody over the person is by virtue of a judicial process or a valid judgment.
The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief is illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individual's liberty is restrained via some legal process, the writ of habeas corpus is unavailing. Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action.
In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained of his liberty. If he is not, the writ will be refused. Inquiry into the cause of detention will proceed only where such restraint exists. If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner discharged. Needless to state, if otherwise, again the writ will be refused.
While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition. Judicial discretion is called for in its issuance and it must be clear to the judge to whom the petition is presented that, prima facie, the petitioner is entitled to the writ. It is only if the court is satisfied that a person is being unlawfully restrained of his liberty will the petition for habeas corpus be granted. If the respondents are not detaining or restraining the applicant or the person in whose behalf the petition is filed, the petition should be dismissed.
Petitioner contends that when PO1 Ampatuan was placed under the custody of respondents on 20 April 2008, there was yet no administrative case filed against him. When the release order of Chief Inquest Prosecutor Nelson Salva was served upon respondents on 21 April 2008, there was still no administrative case filed against PO1 Ampatuan. She also argues that the arrest on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal because there was no warrant of arrest issued by any judicial authority against him.
On the other hand, respondents, in their Comment filed by the Office of the Solicitor General, argue that the trial court correctly denied the subject petition. Respondents maintain that while the Office of the City Prosecutor of Manila had recommended that PO1 Ampatuan be released from custody, said recommendation was made only insofar as the criminal action for murder that was filed with the prosecution office is concerned and is without prejudice to other legal grounds for which he may be held under custody. In the instant case, PO1 Ampatuan is also facing administrative charges for Grave Misconduct. They cited the case of Manalo v. Calderon, where this Court held that a petition for habeas corpus will be given due course only if it shows that petitioner is being detained or restrained of his liberty unlawfully, but a restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty.
The Solicitor General is correct.
Sec. 52 - x x x.
4. The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal from the service; suspension or forfeiture of salary; or any combination thereof for a period not exceeding one hundred eighty (180) days. Provided, further, That the Chief of the PNP shall have the authority to place police personnel under restrictive custody during the pendency of a grave administrative case filed against him or even after the filing of a criminal complaint, grave in nature, against such police personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a valid argument for his continued detention. This Court has held that a restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty.
Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for.
Since the basis of PO1 Ampatuan's restrictive custody is the administrative case filed against him, his remedy is within such administrative process.
Having conceded that there is no grave abuse of discretion on the part of the trial court, we have to dismiss the petition.
In sum, petitioner is unable to discharge the burden of showing that she is entitled to the issuance of the writ prayed for in behalf of her husband, PO1 Ampatuan. The petition fails to show on its face that the latter is unlawfully deprived of his liberty guaranteed and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition is DISMISSED for lack of merit.
 Also spelled as Busser B. Ampatuan in some parts of the records.
 Philippine National Police Act of 1990.
 Moncupa v. Enrile, 225 Phil. 191, 197 (1986).
 Go, Sr. v. Ramos, G.R. No. 167569, 4 September 2009, 598 SCRA 266, 301.
 In Re: The Writ of Habeas Corpus for Reynaldo De Villa, G.R. No. 158802, 17 November 2004, 442 SCRA 706, 719.
 Veluz v. Villanueva, G.R. No. 169482, 29 January 2008, 543 SCRA 63, 67-68.
 G.R. No. 178920, October 15, 2007, 536 SCRA 290.
 Manalo v. Calderon, supra note 24 at 294.

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Administrative Law and Procedure - Review - Additional Evidence - Corrective Action. By permitting a party to withdraw an issue which formed a part of a challenged administrative decision, a trial court is not considering evidence in addition to that admitted by the agency.
 Zoning - Rezoning - Review - In General. An agency's decision regarding a rezone is entitled to some deference by a reviewing court.
NATURE OF ACTION: A neighborhood association brought separate actions seeking judicial review of a rezone allowing construction of a home for the elderly and a decision that no threshold determination regarding the environmental significance of the project was required.
Superior Court: The Superior Court for King County, Nos. 81-2-04016-1, 81-2-15764-5, Jerome M. Johnson and James A. Noe, JJ., on July 20, 1981, and March 29, 1982, entered judgments rejecting the challenges to the project.
Supreme Court: Holding that the project was substantially the same as an earlier proposed project for which no environmental significance had been found and that the rezone was proper procedurally and did not constitute invalid spot zoning, the court AFFIRMS the judgments.
COUNSEL: FRANK H. BROWN and DAVID L. DUNAWAY, pro se, J. RICHARD MANNING, JEFFREY L. CAREY, NEWBOULD & HARRIS, and JOHN P. HARRIS, for appellants.
DOUGLAS N. JEWETT, CITY ATTORNEY, and GORDON F. CRANDALL, ASSISTANT, for respondent City of Seattle.
PATRICK W. CROWLEY (of SIDERIUS, LONERGAN & CROWLEY), for respondents Archdiocese of Seattle, et al.
MAJORITY OPINION: Appellants, representatives of a neighborhood organization, Save a Neighborhood Environment (SANE), bring two actions challenging the decision of respondent City of Seattle to allow construction of an 89-unit apartment complex for low income, elderly tenants.
In the first case, appellants contend that Seattle's Department of Construction and Land Use erred in excusing the statutory requirement of a negative threshold determination. In the second case, appellants assert the City of Seattle engaged in illegal spot zoning. We reject both challenges and affirm the trial courts' decisions.
The controversies arise from the following facts. In 1979, St. Joseph's Church proposed building a home for the elderly on vacant land adjacent to the church. The building was to be funded in whole or part by federal grants. St. Joseph's Church, school and rectory were already on the proposed site, which is located in the Stevens neighborhood of Capitol Hill.
The Stevens Neighborhood Improvement Plan, adopted as a modification of the City of Seattle Comprehensive Plan, lists the proposed site as appropriate for institutional use. The surrounding area has multiple zoning designations. They include: BN (neighborhood business); BI (intermediate business); and RS 5000 (single family residence). There are, in addition, many nonconforming uses in the neighborhood. These nonconforming uses are principally multifamily units located to the south. Nonetheless, the neighborhood plan states that the City has a policy of preserving the single family residence character of Capitol Hill.
Procedurally, the case started when the Archdiocese requested a rezone in order to build a 9-story, 102-unit complex for the elderly. A declaration of nonsignificance was rendered on July 2, 1979. That declaration was not appealed. On September 17, 1979, a hearing examiner recommended against the rezone. On May 19, 1980, the City Council overruled the hearing examiner's recommendations and granted the Archdiocese's request for contract rezoning. SANE then brought an action in King County Superior Court challenging the rezone. On October 29, 1980, the trial judge invalidated the rezone ordinance on procedural grounds not related to the present cause of action.
Early in 1981, the Archdiocese again submitted its proposal, but on a reduced scale. Pursuant to WAC 197-10-390, the Archdiocese sought a ruling that no new negative threshold determination had to be made. The City of Seattle Department of Construction and Land Use ruled that the second proposal was substantially the same as the first. It concluded, consequently, that no new threshold determination was needed.
SANE appealed first to a hearing examiner, then to the Superior Court and the Court of Appeals. Neither the hearing examiner nor the Superior Court Judge agreed with SANE's argument that the two proposals were sufficiently different to warrant a new threshold determination. Division One, by way of certification, deferred to the judgment of this court.
The second action involves the same parties but challenges directly the City of Seattle's second approval of the rezone request. Procedurally, this second action followed a similar path as the first. When, as noted above, the Archdiocese applied for the second rezone in January of 1981, the Department of Construction and Land Use and a hearing examiner recommended that this application for rezone be approved. The Urban Development and Housing Committee of Seattle reviewed the record and also recommended approval. On August 3, 1981, the full City Council adopted the hearing examiner's conclusions and granted the rezone.
SANE again brought suit in superior court, this time challenging the City's decision to grant a rezone. SANE alleged, INTER ALIA, that the Council's actions were arbitrary and capricious. Judge Noe disagreed and Division One certified this case, along with the one discussed above, to this court.
After certification, the cases were consolidated. Although they involve the identical parties, the cases raise two distinct issues.
The first controversy involves application of WAC 197-10-390. That regulation adopted pursuant to the provisions of the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, provides that a threshold determination by a lead agency is binding upon all agencies and that "[n]o agency shall repeat the threshold determination procedures for SUBSTANTIALLY THE SAME PROPOSAL."
(Italics ours.) Here, SANE challenges the conclusion that the proposed project fell within the terms of this regulation. SANE urges that, contrary to the agency's conclusion, the projects were in fact not substantially the same. SANE's argument for dissimilarity is two-pronged. First, SANE contends the area surrounding the project had significantly changed during the 20 months between applications. Second, SANE urges the building plans submitted in conjunction with the second project were not "substantially the same" as that submitted previously. Both arguments are without merit.
SANE cites several changes in the environment as requiring a new threshold determination. Those changes include (1) a new 10-unit townhouse in the area which increased traffic, (2) new businesses in the area increasing traffic, and (3) increased use of St. Joseph's school facilities by outside groups (again resulting in increased traffic).
To attack the proposition that the projects were substantially the same, SANE contends that the new project had (1) a different number of apartments (89 vs. 102), (2) a skybridge, (3) a different number of stories (7 vs. 9), and (4) an increased square footage (29,792 vs. 30,160).
After citing these differences, SANE argues that the hearing examiner did not properly consider them prior to determining that no new threshold determination need be made.
We do not agree that these differences negate the agency determination that the projects were substantially the same. To begin with, when informed of these "significant" changes in the project and site, the hearing examiner testified that alleged changes would not affect his ruling concerning the need for a threshold requirement. In addition, all of the changes in the building mitigated the adverse effects of the project. For instance, both the height and number of units of the building were reduced.
Moreover, the alleged neighborhood changes, cited as establishing that the projects required a new threshold determination, were only slightly relevant to the effect a home for the elderly would have on this area. For example, SANE suggested that increased traffic was a problem in the area. The increased traffic problems associated with elderly housing, however, are minimal, since few residents of elderly housing own or operate motor vehicles. Under these circumstances, we agree that a new threshold determination is not required.
 We also reject SANE's second attack on the trial court's decision. That procedural attack relates to evidence considered by the judge. Citing COOK v. CLALLAM CY., 27 Wn. App. 410, 618 P.2d 1030 (1980) for the proposition that a reviewing judge cannot take evidence beyond that considered by the agency, SANE argues that the trial judge erred in accepting the Archdiocese's offer to withdraw the skybridge. Appellant's reliance on COOK is misplaced. In COOK, the trial judge conducted a trial de novo and elicited testimony from witnesses who had not appeared before the agency. He then issued a writ of mandamus ordering that the County grant the building permit the agency had denied. Division Two reversed the trial court. It held that an order of mandamus was not proper to compel an agency to perform a discretionary act. The court also concluded that the trial judge erred by conducting a trial de novo. Neither of these errors were committed here. The trial judge, in affirming the agency determination, did not order the agency to act. Moreover, the trial judge did not conduct a trial de novo. When the trial judge expressed concern about the skybridge (an aspect of the building already considered by the agency), the Archdiocese responded by offering to remove it. The trial judge simply agreed with the proposal. Unlike COOK, the trial judge in the present case considered only evidence which the agency also had before it. Thus, no principles of agency autonomy were violated by the trial judge's actions.
SANE's second appeal is a direct attack on the City Council's decision to grant a rezone. While SANE makes eight assignments of error, its case can be reduced to several related arguments.
 SANE's principal contention is that the City Council's action in granting the rezone was arbitrary and capricious. To support that proposition, SANE alleges first that the judge improperly considered the land use decisions as legislative rather than adjudicatory in nature. Citing several appearance of fairness cases (I.E., FLEMING v. TACOMA, 81 Wn.2d 292, 502 P.2d 327 (1972)), SANE concludes that the judge's characterization of the problem meant that he unnecessarily deferred his judgment to that of the City Council. SANE's argument is unpersuasive. First, whether an agency action is adjudicatory or legislative, an agency's determination will still be granted some deference. SEE LEONARD v. BOTHELL, 87 Wn.2d 847, 557 P.2d 1306 (1976). Second, the trial judge did consider, independently, the issue of whether the development would benefit the public. Finally, as discussed below, the project clearly is beneficial to the community.
SANE next argues that the City's actions constitute an illegal spot zone. This argument was carefully considered and rejected by the trial court. We affirm that decision.
"[o]nly where the spot zone grants a discriminatory benefit to one or a group of owners to the detriment of their neighbors or the community at large without adequate public advantage or justification will the county's rezone be overturned.
The trial judge used a similar test, although his opinion cited the criteria of SMITH v. SKAGIT CY., 75 Wn.2d 715, 743, 453 P.2d 832 (1969).
«1» The trial judge, citing HAYDEN v. PORT TOWNSEND, 93 Wn.2d 870, 613 P.2d 1164 (1980) observed that the instant case involved a more relaxed zoning classification and suggested that under HAYDEN he was authorized to do a less meticulous evaluation of the relationship between a rezone and the promotion of public welfare. We believe the promotion of public welfare is equally important in either case. Nonetheless, for the reasons stated above, we concur in the trial judge's conclusion that this rezone promoted the general welfare. To the extent that language in HAYDEN suggests the contrary, it is overruled.
Moreover, the above cited factors reflect both the trial judge's and the City Council's judgment that the proposal by the Archdiocese presented a unique opportunity to allow elderly residents the chance to remain in a residential neighborhood in affordable housing. It is not our place to disturb an agency decision reached after extensive factfinding hearings which provided ample opportunity for all concerned to be heard.
Finally, we agree that the proposal will have a minor impact on the area. The building will be in the shadow of St. Joseph's and so will not protrude. As noted above, traffic problems, always a concern in residential areas, will not be aggravated to any real extent by elderly residents.
SANE's final assertion that the project does not comply with the City's comprehensive plan which encourages single family residences is without merit. We agree with the trial judge that the project generally conforms with the plan. SEE CATHCART-MALTBY-CLEARVIEW COMM'TY COUN. v. SNOHOMISH CY., 96 Wn.2d 201, 212, 634 P.2d 853 (1981). Here, the comprehensive plan contemplated institutional use of this particular block. Housing developments for the elderly are similar to such institutional uses as schools or dormitories. SEE Memorandum Opinion. Clerk's Papers, at 9. The proposed use is not inconsistent with the plan's goal of encouraging single family residences. High density problems, associated with apartments, I.E., increased noise, traffic, children, will not be present in this project, so it is unlikely the project will deter the development of single family residences in the area. Finally, both uses are essentially residential in nature and are thus not incompatible.
In sum, we conclude the City of Seattle's action in granting the contract rezone was neither procedurally infirm nor an illegal spot rezone. The judgments of both trial courts are affirmed.

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This study uses entropy theory to develop a novel application of the apportionment entropy disorder index (AEDI) to capture both spatial and temporal variability in monthly precipitation for various types of hydrologic modeling. In total, 41 Environment Canada stations across Ontario with long term (1955 to 2005) records and a very low percentage of missing data were selected. It was found that the fall and summer seasons are the major contributors to annual precipitation variability. Spatial variability of annual precipitation was observed to be increasing from southern to northern Ontario. The AEDI index map of Ontario, developed in this study, has been successfully integrated into several hydrologic models.
Prediction of precipitation variability and its influence on the hydrological cycle and water quality is an increasingly active area in hydrological research (Zhang et al. 2000; Zhang et al. 2001; Lemmen et al. 2008; Finney et al. 2010; Ahmed et al. 2013; Disley et al. 2015; Liu et al. 2015; Mattar et al. 2016; Atieh et al. 2017). The distribution of precipitation spatially and temporally directly affects the hydrological cycle within a watershed, altering flow regimes and complicating the accurate predictions of flow (Das et al. 2008; Boyer et al. 2010; Coulibaly 2006; Khan and Coulibaly 2010; Liu and Cui 2011; Trenouth et al. 2013; Trenouth and Gharabaghi 2015; Trenouth et al. 2015; Thompson et al. 2016). An understanding of precipitation variability is also needed for flood and drought preparedness planning. There is a need to better understand the spatial and temporal variability in precipitation to more accurately model the hydrologic system and the health of aquatic life (Perera et al. 2009; Perera et al. 2010; Perera et al. 2013; Betts et al. 2014; Betts et al. 2015; Sabouri et al. 2013; Trenouth and Gharabaghi 2015; Gazendam et al. 2016). Parameters that represent this variability may be important factors to include in modeling studies (Vasiljevic et al. 2012; Rudra et al. 2015).
Understanding precipitation variability is a necessity for water resource management as any change in pattern influences the availability of water resources. As such, studies have used different methods that assess trends in hydrological variables. These methods may be divided into bootstrap (Burn et al. 2010), regression (Cheung et al. 2008), and nonparametric methods (Tabari et al. 2015). Trend and variation analysis of hydrologic parameters including flow and precipitation has commonly been studied by applying statistical analysis methods such as linear regression (Akinremi et al. 1999; Asnaashari et al. 2015; Atieh, Gharabaghi et al. 2015; Atieh, Mehltretter et al. 2015). However, the expected accuracy of linear regression analysis is limited because the relationships between hydrologic parameters are generally nonlinear. The nonparametric Mann–Kendall (MK) test has been the most popularly used for trend analysis (Gajbhiye et al. 2016; Palizdan et al. 2014; Sayemuzzaman and Jha 2014). The major limitation to the MK test is its sensitivity to serial correlation in time series data which is available in precipitation data (Palizdan et al. 2014; Sayemuzzaman and Jha 2014). Time series analysis has been the most popular method for hydrological trend analysis as it does not assume linearity (Sang 2013; Yu et al. 2014). The Fourier transform has been widely adopted as a method of distinguishing the high frequency modes within a time series (Fotiadi et al. 1999). Major drawbacks of using the Fourier transform are that it is not well adapted to non-stationary data and does not maintain temporal information (Drago and Boxall 2002; Coulibaly 2006; Palizdan et al. 2014). More recently, wavelet analysis has been adopted for analysing hydrologic parameter trends and variations because it overcomes these limitations of the Fourier transform (Coulibaly 2006; Adamowski et al. 2009; Nalley et al. 2012; Adamowski et al. 2013). Discrete wavelet analyses have also been coupled with the MK test to determine the dominant periodic components affecting precipitation trends (Palizdan et al. 2014). Application of the concept of entropy in water resource engineering is an evolving idea that has attracted more research in the past decade. The application of entropy concepts has facilitated advancements in a range of hydrologic problems including the assessment of model performance, parameter estimation, derivation of functional relationships, development of flow duration curves, streamflow forecasting, uncertainty estimation, and assessment of the efficiency of monitoring networks (Cui and Singh 2016; Hao and Singh 2011; Moramarco and Singh 2010; Singh 1997; Singh 2013; Singh et al. 2014). Liu et al. (2008) studied the basin-scale spatial patterns of precipitation time series data using Shannon‘s entropy theory in the Yellow River basin, China. Entropy was used to detect the spatial structure of precipitation that was found to increase with longitude. Mishra et al. (2009) developed a methodology using entropy theory to investigate the intra-annual and decadal distributions of precipitation across Texas. They were able to determine the spatial variability of precipitation amounts within a year across Texas. Precipitation variability, quantified using entropy, is also an important parameter to include in various hydrologic modeling studies. Atieh, Gharabaghi et al. (2015) and Atieh, Mehltretter et al. (2015) developed an entropy parameter that captures both the temporal and spatial variability of precipitation in models for predicting flow duration curves and sediment parameters at ungauged sites, and found that including the entropy parameter improved predictions. Using entropy concepts for estimating the variability of hydrologic parameters is still a novel and appealing option that has not been fully investigated.
r = multiplicity, i.e. the number of microstates that could occur in the system being considered.
In a large scale system, the natural logarithm of r is equal to the natural logarithm of the maximum probability (Dugdale 1996).
Shannon entropy, also called informational entropy, was first introduced by Shannon in 1948. In 1997, Singh provided an extensive review of the uses of entropy, including Shannon entropy, in hydrology and water resources. The concept underlying Shannon entropy is that the more uncertain an event, the more information is needed to characterize it. Entropy concepts can be used to measure the uncertainty of a collection of events by determining the average amount of information needed to eliminate uncertainty (Singh 2013).
This study adopts entropy theory as a means to investigate the temporal and spatial variability of precipitation in Ontario, Canada. The uncertainty associated with different time series of precipitation measurements was determined and variation in precipitation was analysed relative to other stations in the area. Precipitation analysis is a common need in the water resource sector, and is necessary for determining the effect of annual, seasonal and decadal variability on the availability of water. This information directly impacts future water resource decision-making. The key objective of this study was to determine temporal and spatial variability of precipitation in Ontario on annual and decadal scales.
In this study, temporal variability is measured as the randomness of a time series (annual and decadal) over different time intervals (monthly, seasonal, and yearly). Variability is defined by a disorder index that is the difference between maximum and observed entropy within an individual series. A higher disorder index indicates greater variability.
Precipitation time series were considered individually to determine variability within each time series (temporal variability). Variability was then compared between stations (spatial variability). The time series used in this study are mean daily precipitation, annual precipitation and decadal precipitation time series. The variability of the annual time series was analysed over monthly intervals. The variability of the decadal time series was analysed for monthly, seasonal, and annual time intervals separately. The winter season was considered to include the months of December, January and February. Further, spatial variability in annual and decadal precipitation across Ontario was addressed by analysing average annual and decadal measurements respectively at each location.
Apportionment entropy (AE) is a measure of the temporal variability of monthly precipitation over a year.
The aggregate precipitation in a year (A) is the sum of the individual aggregate precipitation during each month (ai). AE is highest (AE = log212 = 3.585) when annual precipitation is equally apportioned between each month (probability 1/12 for each month), while it is lowest (AE = 0) when all precipitation occurs in a single month.
The aggregate decadal precipitation (D) is the sum of the individual aggregate annual precipitations for each year (di). DAE quantifies the variability of the decadal annual precipitation over a 10 y period. DAE is highest when annual precipitation is equally apportioned to each year (DAE = log210). Similarly, Equations 4 and 5 may be applied to any time series (monthly, seasonal). For example, Equation 4 could be applied to the aggregate precipitation values for the month of January for a decade, which would allow the determination of the randomness that occurred for that month over the decade.
A disorder index is the entropy calculated, based on the observed precipitation, divided by the maximum possible entropy (even distribution of precipitation throughout the time interval). The disorder index may be calculated using an annual or a decadal dataset, and is thus labelled the annual apportionment entropy disorder index (AEDI) and decadal apportionment entropy disorder index (DEDI) respectively. The disorder index is a measure of the variability within a time series. A mean disorder index is used to compare temporal variability (i.e. from one year to another) and spatial variability (i.e. from one station to another). A long term mean is used as a threshold value to determine high versus low variability.
This project focused on the province of Ontario, located in east central Canada with a total area of 1 000 000 km2. Precipitation is lowest in northwest Ontario and increases in a southeast direction; annual mean precipitation in northern Ontario ranges between 400 mm and 600 mm whereas in the southern parts of Ontario it is between 800 mm and 1 200 mm (Atlas of Canada 2014).
Using the Environment Canada Adjusted Precipitation Dataset stations located in Ontario with total monthly precipitation data available for the 50 y period 1955 to 2005 were selected. This period is similar to that adopted by Nalley et al. (2012) for studying the variability of precipitation in Ontario and Quebec. Kumar et al. (2009) also indicated this period was sufficient for analyzing long term precipitation trends. The 41 stations with the lowest percentages of missing data were selected. Figure 1 shows the location of the selected stations within Ontario. Stations are numbered from the most southern station (station 1) to the most northern one (station 41). Of the 41 stations, 30 had <4% missing data for the 1955 to 2005 period, whereas the highest percentage of missing data among the 41 stations was 22%. This was included in order to allow a wide distribution of stations in northern Ontario. Mishra and Singh (2010) indicated that when missing precipitation data is less than 3%, the data can be considered of good quality. However, they also included in their study a few stations with missing values >3% (Mishra and Singh 2010).
Figure 1 Distribution of selected precipitation stations in Ontario.
Using ArcGIS 10.1 and Environment Canada Climate Normals (1971 to 2000), a total of 245 monitoring stations with 30 y of data were selected in Ontario and surrounding provinces to generate a mean annual precipitation (MAP) map using the inverse distance weighted method (Atieh, Gharabaghi et al. 2015). Figure 2 shows that the MAP varies between 500 mm and 1 200 mm across Ontario with the lowest precipitation (500 mm to 700mm) in northern Ontario. Standard deviation (SD) of the mean daily precipitation was calculated for all stations and was represented as a percentage of MAP. It ranged between a minimum of 22% (northern Ontario) to a maximum of 42% (southern Ontario).
Figure 2 Mean annual precipitation in Ontario in mm (Atieh, Gharabaghi et al. 2015).
Using apportionment entropy, the distribution of annual variability of precipitation in a year was investigated during a 50 y period (1955 to 2005). The apportionment entropy disorder index (AEDI) was used as an indicator of variability of precipitation distribution for different months and different seasons within a year. The higher the AEDI value, the higher the variation within the annual time series. The AEDI was first calculated for each station individually to study temporal variation, after which the stations were compared to determine the spatial distribution of precipitation variability. The degree of variability for specific years and stations can be identified based on a threshold for temporal and spatial variation respectively.
Apportionment entropy (AE) was calculated at the 41 sites for each month over a year using Equation 2. The AEDI value (Equation 4) was then calculated using the difference between maximum possible apportionment entropy and observed apportionment entropy. The mean AEDI of the stations over 50 y was computed to examine average temporal variation in the region. The long term average of mean AEDI was also computed and used as a threshold indicator to identify the years with high precipitation variability versus those with low variability over a regional basis. Results presented in Figure 3 indicate that within the variability range 0.18 to 0.21, there appear to be a few high and low peaks. Years 1993 and 2000 had the highest annual variability, with a few smaller peaks in 1968, 1977 and 1987. The lowest variation was observed in years 1972, 1975, 1990, 1996, and 2003.
Figure 3 Mean AEDI for all stations using monthly time interval.
The means of the computed AEDI for all years across the selected 41 stations for annual and seasonal time series are presented in Figures 4 and 5 respectively to show the spatial variability of annual precipitation time series in Ontario. The long term mean is used as the threshold to determine stations with high variability versus those with low variability.
Figures 4 and 5 both show that stations 1 to 28 were associated with lower variability (both monthly and seasonal) whereas the remaining stations had higher variability. The highest variability was observed at the westernmost stations in Ontario. The trend of spatial variability is similar for both time scales over an annual time series with a few distinctions. An interesting observation is that variability of precipitation within a year increases from southern Ontario to northern Ontario (Figure 6).
Figure 6 Distribution of apportionment entropy disorder index across Ontario.
The decadal apportionment entropy disorder index (DEDI) was calculated for each station to investigate the spatial and temporal variability. DEDI was calculated for five decades (1955 to 2005). Results are presented in Figure 7. For the monthly scale, there is a large variation between decades. The highest peak was observed in the decade 1956 to 1965, for the month of October. A high variability peak is observed in February for all decades. These peaks in variability of precipitation may be due to greater ranges of snowfall in February of different years and similar patterns of wide ranges of rainfall in October in Ontario.
Figure 7 Mean DEDI for all stations over 5 decades.
The methodology used in this paper is based on entropy, which is a different perspective on analyzing hydrological trends than has been seen in other papers that used statistical and signal analysis. Using AEDI the variability of the annual and seasonal time series was analyzed. The years with higher variability are determined and any trends throughout the analysed 50 y may be identified. Through collapsing the time scale and analyzing AEDI spatially, across the 41 stations, the spatial distribution of precipitation variability was presented. Similarly, using DEDI, the decadal trends in precipitation was analyzed.
Incorporating precipitation variability in various hydrological models allows a more accurate presentation of the hydrologic system (Hwang et al. 2012; Masinde 2014; Rudra et al. 2015). Different strategies are used to represent precipitation variability within hydrologic models, such as comparing long term precipitation records and dividing precipitation time series into different periods (Masinde 2014; Hiltner et al. 2016; Li et al. 2016). The entropy based methodology presented in this paper generates a simple, easy to use parameter (AEDI) that allows incorporation of temporal and spatial variability of precipitation into any hydrologic model. An AEDI map may be developed for any region in the world using the methodology presented in this paper for generating a spatial AEDI map of Ontario. Atieh, Gharabaghi et al. (2015) and Atieh, Mehltretter et al. (2015) were the first to introduce AEDI as an input parameter to an artificial neural network (ANN) model to more accurately predict flow duration curve (FDC) and sediment rating curve (SRC) parameters at ungauged sites. The results of Atieh, Gharabaghi et al. (2015) indicated that the parameters defining the log normal distribution for the FDCs (location and scale) were highly sensitive to AEDI. Incorporating AEDI in the location and scale ANN models improved prediction performance by 7% and 21%, respectively. Atieh, Mehltretter et al. (2015) reported that removing climatic parameters from the SRC prediction model decreased the correlation coefficient by 40% and the Nash–Sutcliffe coefficient by 42%. This paper recommends using AEDI in future hydrological modeling research such as runoff estimation, flood and drought prediction, and water quality studies.
This study presents an alternative method for quantifying spatial and temporal variability of precipitation for hydrologic modeling. The apportionment entropy disorder index (AEDI) was calculated using 50 y (1955 to 2005) historic precipitation records for 41 Environment Canada Stations across Ontario. The AEDI values of the stations were compared to determine the spatial distribution of precipitation variability. Precipitation variability was observed to increase from southern Ontario to northern Ontario.
The decadal entropy disorder index (DEDI) was calculated for 5 decades (1955 to 2005). The highest monthly variability peaks were observed in February. Spatial variability increased from southern Ontario to northern Ontario.
This paper presents a novel approach for a better understanding of the spatial and temporal variability of precipitation which is useful for a variety of hydrologic modeling projects, including flood and drought preparedness planning.
The authors would like to acknowledge the generous support of the Natural Sciences and Engineering Research Council of Canada (NSERC) for their support of this research. The authors also acknowledge the support received from Dr Coulibaly and Dr Mishra, including constructive comments and the initial Matlab code.
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