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Brief NotesCell Tower ProblemsThe Federal Telecommunications Act of 1996 purported "to facilitate nationally the growth of wireless telephone service." Construction of cellular transmission towers (to close signal gaps) boomed all over the country. But the Act also sought "to maintain substantial local control" over actual siting (location) of towers. Cases are now reaching the federal courts in which zoning boards attempt to restrict tower construction over height limits or restrictions on land usage or other local controls. To resolve this "Gordian Knot," a First Circuit Court of Appeals in New England found the need for the tower was real, then discounted the zoning limitations by some nifty tap dancing and held the local zoning board's refusal to grant a variance a violation of the Federal Law. Perhaps the "signal" we are receiving is that if a coverage gap is proved, and no alternative site is suitable, local authorities would do well to find a means to grant zoning approval for cellular transmission towers. Digging Deeper for Terrorist Links By an Executive Order signed soon after the 9-11 terrorist attacks, attorneys or closing agents on real property sales must check the names of the buyer and seller against the Government's Specially Designated Nationals and Blocked Persons List, which targets terrorists and parties funding terrorism. Because implementing regulations have been slow to appear, realtors, title companies and lawyers have just begun to use the search process. Closing officers can be expected to require proof of identification, to conduct the search, and to make a modest additional charge. Perplexing issues of attorney-client privileges of confidentiality remain unresolved. Mandated Employment Arbitration Still "Iffy" Alternate Dispute Resolution (ADR), whether by arbitration, mediation or other method, is a fast growing means of avoiding litigation. Courts encourage it and many commercial contracts require it. In collective bargaining agreements, arbitration of disputes has a long and successful record. But in individual employment contracts, mandatory arbitration has been viewed suspiciously by the courts. The U.S. Supreme Court in 2001 seemed to signal a more favorable judicial approach in Circuit City Stores v. Adams. The Court found the Federal Arbitration Act could be invoked to compel arbitration in employment cases, generally. But it left to another federal court (Ninth Circuit Court of Appeals) to sort out whether the arbitration clause was enforceable under state law. In that case, it was decided the provision was unfairly forced on the employee as a clause "of adhesion," and refused to approve it. Eminent Domain Values Effected by Contamination A constitutional guarantee of payment of fair value has been a hallmark of the exercise by government of taking property by eminent domain. New factors affecting marketing value keep popping up. Environmental contamination in a majority of jurisdictions has been held to be a proper element in fixing fair value. Such contamination not only includes soil contamination from gasoline, oil and other toxic waste, but also asbestos, lead-based paint and mold (the latest contaminant to draw attention.) The cost of abating such hazardous materials can be expected to reduce the fair value in eminent domain cases, just as in other sales or transfers of real property. |
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