Contractors can be cited for workplace safety violations that put subcontractor’s workers in danger

Contractors can be cited for workplace safety violations that put subcontractor’s workers in danger

The Fifth Circuit Court of Appeals in December ruled that the Department of Labor can cite general contractors for workplace safety violations that put subcontractors’ workers in danger. The case explored the legality of OSHA’s multi-employer citation policy.

The National Association of Home Builders has been challenging the multi-employer work site doctrine for years, and filed an amicus brief, along with the Texas Association of Builders and other construction groups, in the case, Acosta v. Hensel Phelps Construction Co.

Read the full report by clicking here.

Home Ownership Warranty Corporation Companies Payments to be Disbursed

At the International Builders’ Show it came out that many members invested in a company called Home Ownership Warranty Corporation back in the 80s & 90s. It was a home warranty company that went out business and into receivership some time ago. To make a long story short, the company is going through the liquidation process and many of the original investors are entitled to a return of their capital contributions. The problem is that since so much time has passed, some of the contact information for builders is outdated.

NAHB has created a website to help our builders contact the administrator for HOW Corp and to update their address. There are essentially two links. The background page is available here.

There is another link embedded in the page above which takes you to another page that lays out how to update contact information. There is an April 15 deadline to submit information.

For more details, read the article below:

Twenty-two years after it went into receivership, builders who made capital contributions to the Home Ownership Warranty Corporation companies may be eligible to get some of their money back.

Home Ownership Warranty Insurance Company (HOWIC) was a risk-retention group under the Home Warranty Corporation (HWC). As the parent company, HWC owned all the shares of stock in its operating subsidiaries: HOWIC and the Home Owners Warranty Corporation (HOW), which managed the insurance operations. The three companies are collectively referred to as the HOW Companies.

In 1994, the HOW Companies were placed into receivership. The receiver has now moved forward with plans to liquidate the company and is preparing to distribute payments to former HOW builders with previously approved claims for capital contributions (in legal terms known as eligible Builders).

As part of the liquidation process, the receiver set a deadline of Jan. 12, 2009 by which all claims against the HOW Companies needed to be filed. Any eligible builder seeking return of capital contributions made to the HOW Companies was required to file a claim by that deadline, and many National Association of Home Builders members did so.

After the receiver returns capital contributions to eligible builders, the receiver, as a final step, will distribute residual assets to builders who were insured under unexpired HOWIC insurance policies as of Oct. 14, 1994 (in legal terms known as builder distributees). However, builder distributees do not need to submit claims for their share of the residual assets of the companies.

As a service to the Home Builders Association membership, staff is looking at ways to ensure that the receiver has the up-to-date contact information for all eligible builders and builder distributees, and has posted the relevant contact information on file with receivership staff.

If you are an eligible builder or builder distributee, please read the directions and additional information on this web page.

Your HBA saved members $$$ with court victories this summer

Watch a report about how your Home Builders Association has saved members tens of thousands of dollars with its efforts in court.

You must be logged in as a member to watch this report.  Need help logging in?  Contact your HBA Office at 864-254-0133.  Not a member?  We invite you to become a member by clicking here.

HBA Sues EPA on Clean Air Act

Your Home Builders Association is part of an industry coalition against the EPA in a case before the Supreme Court. This time the battle has to do with the Clean Air Act. The EPA has certain preconstruction permitting requirements which are designed to lower carbon dioxide emissions, but as you might expect, have unintended consequences.  Click on the link below to watch a report on the lawsuit.

In 2009-2010, EPA issued four separate regulations in order to regulate greenhouse gas (GHG) emissions from motor vehicles. Even though the Auto Rule ostensibly sets standards for motor vehicles only, EPA has interpreted this regulation to trigger requirements for stationary sources as well. Traditionally, “stationary sources” are limited to large industrial factories and utilities. But, because the Clean Air Act contains a numeric triggering threshold for a pre-construction permit known as the “Prevention of Significant Deterioration” program permit, and because the principal GHG emission, carbon dioxide, is emitted by structures in an amount triggering this threshold, stationary sources in this context would include multifamily structures and even some single family homes. This result would bring most multifamily, mixed use, some single-family home, and potentially even master-planned community development to a halt.

One of the four regulations, known as the Tailoring Rule, raises the statutory thresholds that automatically trigger PSD permitting requirements by relying on judicial doctrines such as “absurd results” and “administrative necessity.” While raising the statutory thresholds effectively exempts residential construction from PSD permitting obligations, this purported relief is uncertain and temporary. EPA does not provide a permanent exemption for small sources, only a promise to not regulate until 2016. Finally, EPA’s interpretation of its ability to ignore the statutory thresholds represents a dramatic expansion of its authority, which if upheld, would make it extremely difficult for the courts and even Congress to limit EPA’s actions.

Your Home Builders Association’s partner, the National Association of Home Builders, joined an industry coalition to challenge all four regulations on the grounds that EPA misinterpreted its obligations under the Clean Air Act.

On June 26, 2012, the court issued one opinion deciding all four petitions. The court found that EPA’s Endangerment Finding and Auto Rule were valid, and that all parties lacked standing to challenge the Tailoring and Timing rules. The industry coalition to which NAHB belongs filed a petition for rehearing on Aug. 10, 2012, and a divided full court issued its decision on Dec. 20, 2012. While a majority of judges voted to deny the petition, two judges took the unusual step of writing detailed dissents to the petition’s denial. One dissent in particular supported the industry coalition’s arguments.

On April 18, 2013, NAHB as a member of the industry coalition filed a cert petition with the U.S. Supreme Court. EPA filed its opposition to cert on July 22, 2013, and the coalition filed its reply on Aug. 6, 2013.

On Oct. 15, 2013, the Supreme Court agreed to hear this case on the following issue: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” Briefing will take place through the winter, and oral argument will occur in February 2014. This marks NAHB’s second trip to the Supreme Court as a petitioner.

NAHB scores legal victory for member’s property rights

June 25, 2013—Supreme Court Decision in KOONTZ v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT
For years, local governments have pursued arrangements with developers to extract certain concessions in exchange for the opportunity to develop. For example, a locality may ask a developer to improve the street in anticipation of the increased traffic that a development may bring. In some cases, this is a fair request. However, some local governments seem all too willing to stretch the boundaries to the limit.

In a victory for HBA members and property rights advocates, the U.S. Supreme Court on June 25 issued an opinion that directly affects the law that applies to such conditions, called “exactions”. The case is Koontz v. St. James River Water Management District, and the opinion is available at NAHB led a coalition of 16 associations which together filed an amicus brief that among other things explained to the Court that governments will not collapse if they cannot extort money from property owners who wish to use their land.

Koontz Case Facts
Mr. Coy A. Koontz owned 14.2 acres of vacant land and sought to improve 3.7 acres of the property. Koontz applied to the St. John’s River Water Management District (District) for permits to dredge and fill 3.25 acres of wetlands. In exchange, Koontz offered to dedicate the remainder of his property (approx. 11 acres) to the State for conservation, but the District rejected the proposal and pressed Koontz for more. The District demanded that Koontz pay to enhance 50 off-site acres of wetlands on the District’s propertylocated between four and 7.5 miles away, by replacing culverts and plugging some ditches. Koontz refused the District’s unreasonable demand. The District then denied outright his permit applications, and would not issue permits unless and until Koontz submitted to its conditions. Koontz brought a lawsuit against the District.

The Legal Background
Since the late 1980s, the Supreme Court has held that a permit condition (also called an “exaction”) is not constitutional unless it has a “nexus” to a governmental purpose and it is “roughly proportion” to the impacts of the project. This is known as the Nollan/Dolan test, named after two Supreme Court cases. The test protects property owners from over-zealous land use permitting officials. Until today, there were two unanswered questions:

  1. Is there a difference between scenarios when the government simply denies a permit because the land owner would not accede to an onerous condition, as opposed to when it grants a permit with conditions attached?
  2. Is the Nollan/Dolan test limited to exactions of land (e.g., government asks for 10% of land to be set aside for park), or does it also apply to monetary actions (e.g., government asks for $10,000 to go towards building an off-site park).

These two questions are quite important—if the Court had decided that Nollan/Dolan did not apply in either scenario described above, then it would give the government expanded power to force unreasonable exactions upon developers by providing an easy work around to the Nollan/Dolan test.

Today’s Decision in Koontz
The Supreme Court decided in favor of Mr. Koontz. Specifically, it ruled that Nollan/Dolan applies equally to situations where the government denies a permit and where the government grants a permit with conditions. In other words, if a property owner refuses to agree to outrageous conditions in a permit, and the government denies that permit, the government cannot later argue that there was no constitutional violation because the permit was never granted. In its analysis, the Court used a form of the word “extortion” five times to describe the manner in which governments demand property from developers before granting approvals. Thus, the Court may be starting to understand the realities of the land use permitting process. The Court also ruled that monetary exactions are subject to the same Nollan/Dolananalysis as land exactions. Thus, it makes no difference if the government demands that the land owner give up real property or money as a condition to obtaining a permit. This is a huge victory. The decision gives land owners ammunition to fight permitting officials that attempt to hold up approvals until the land owner surrenders to their extortion.