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Archive for the tag “use”

James W. Cushing, Esquire on the Law and Business Podcast: Judges and Bringing Cases to Settlement

Anthony Verna, Esquire, (of Vernal Law), a reputable copyright lawyer in New York, is the host of a podcast called The Law and Business Podcast (you can find it here).

We sat down for a half hour to discuss the role of judges in bringing cases to settlement.

You can listen to (and hopefully enjoy!) the podcast here!

Roger Dean v. James Cameron; the Avatar Litigation Roundup

If you have been watching the news, or following this blog, you may know that there was a U.S. Federal Court case between Roger Dean (the cover artist for Yes, Asia, and other bands) and filmmaker James Cameron (famous for Avatar, Titanic, Aliens, and The Terminator).  Roger Dean sued James Cameron claiming Cameron swiped Dean’s images and concepts for his record breaking blockbuster film Avatar.  I have posted extensively on the subject as I am a rabid Yes and Roger Dean fan.

As I posted a while back, the case has now come to a close.  Now that the matter is over, I thought it would be helpful to collate all of my posts on the subject so you can see the progression of the case.  Unfortunately, Roger Dean did not come out on the winning end of the case and, hopefully, the posts below can sufficiently explain what happened and why the case wound up the way it did.

Here you go:

Court’s Determination of Church’s Voting Membership Upheld

This is from religionclause.blogspot.com which you can find here:

“In Fairfield Pentecostal Church v. Johnson, (LA App., June 3, 2015), a Louisiana state appeals court upheld a trial court’s decision determining a church’s voting membership for purposes of a special vote on whether to dismiss the pastor, saying in part:

The trial court determined at the hearing that none of the members on the original roll had been disfellowshipped; and it allowed another list of members gathered in November 2013 by Reverend Franks, who had kept no roll since his installment in 2010, to be counted toward the membership roll. In order to prevent the solicitation of new members for purposes of litigation, the trial court limited the membership to these two lists. We can think of no more equitable solution.”

You can learn more about this issue here.

7th Circuit Keeps RLUIPA Suit Against Chicago Alive

This is from religionclause.blogspot.com which you can find here:

“In World Outreach Conference v. City of Chicago, (7th Cir., June 1, 2015), the U.S. 7th Circuit Court of Appeals breathed new life into a RLUIPA case that has been in litigation for 9 years. The court reversed the district court’s grant of summary judgment to the city of Chicago as to claims against the city for damages because of delays in granting licenses to World Outreach so it could operate a former YMCA building for its religious purposes. World Outreach argued it lost some $591,000 that it could have made by housing Hurricane Katrina evacuees in the building. The court’s opinion by Judge Posner included comments about the power of aldermen in Chicago politics.  Judge Cudahy concurred with one of the shortest and most cryptic opinions ever:

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

(See prior related posting.) RLUIPA Defense blog reports on the decision”

You can learn more about this issue here.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

This is from religionclause.blogspot.com which you can find here:

“On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child’s religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially “acknowledged” by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.”

You can learn more about this issue here.

Oregon Tax Court Says Rectory Not Tax-Exempt

This is from religionclause.blogspot.com which you can find here:

“In St. Mary Star of the Sea Catholic Church, Astoria v. Clatsop County Assessor, (OR Tax Ct., May 6, 2015), an Oregon Tax Court magistrate held that a residential structure located 1.5 miles from the church used as a church rectory did not qualify for a property tax exemption “because the evidence shows the rectory is not reasonably necessary to carry out the religious aims of the church…”  The court said in part:

Although [the parish priest] does write sermons and homilies at the rectory, those duties do not require close physical proximity to the church…. The other uses of the rectory have no direct connection to the church; they certainly do not require a rectory in close proximity to the church. There was generalized testimony about the availability of guest bedrooms for visiting priests, deacons, and seminarians, but no specific testimony or other evidence that such officials have stayed at the subject property and, if so, how many and how often they were there….

Forbes reports on the decision.”

You can learn more about this issue here.

Church Sues Over Zoning Restrictions That Are Forcing It To Move

This is from religionclause.blogspot.com which you can find here:

“The San Diego Reader reports on a lawsuit filed May 28 by the San Diego Christian Worship Center against the city challenging zoning restrictions that will force the church to relocate in September.  The city granted the church a 5-year conditional use permit in 2010, and the church made $700,000 of improvements to its site. In 2014 the city changed the zoning in the area to “prime industrial,” which does not allow churches, and the city says it will not renew the conditional use permit. The church lacks the resources to find a new building. Apparently the complaint contends that the new zoning designation, which excludes instructional studios and entertainment venues as well as churches, amounts to a prior restraint on First Amendment expression.  The church also claims– presumably invoking RLUIPA– that the cost of preparing an application every 5 years to renew its conditional use permit imposes a substantial burden on its exercise of religion.  It will cost $50,000 to $100,000 to prepare the application, which must include an environmental impact statement. ”

You can learn more about this issue here.

Comic Books, Geek Life, and Trademark & Copyright Law Pod Cast

Anthony Verna, Esquire, a reputable copyright lawyer in New York, is the host of a podcast called The Law and Business Podcast (you can find it here).  He recently had me on as a guest on his podcast to talk about the various intellectual property issues surrounding comic books and movies based in comic books.  This seems especially relevant as the enormous blockbuster Avengers: Age of Ultron is about to be released in theaters this coming weekend.  I get the feeling that I was asked onto this podcast because I am such a huge comic book nerd as opposed to any legal expertise, but be that as it may I really enjoyed my time and I think we covered a lot of interesting topics, both legal and nerdy!

You can listen to (and hopefully enjoy!) the podcast here.

Podcast: Two Ways in Which Bands are Businesses and Intellectual Property and Contract Mistakes Sink Them (featuring James W. Cushing, Esquire!)

Anthony Verna, Esquire, (of Kravitz & Verna), a reputable copyright lawyer in New York, is the host of a podcast called The Law and Business Podcast (you can find it here).  Back on September 25, 2014 he had me on as a guest on his podcast to talk about the litigation between Yes artist Roger Dean against Avatar filmmaker James Cameron regarding Cameron’s alleged misappropriation of Dean’s images in Avatar.  You can hear that podcast here.  You can read more about Dean v. Cameron here.

Well, on October 20, 2014 Mr. Verna had be back on as his guest on his podcast (clearly he has questionable sanity!) to discuss band names and the legalities surrounding who owns the names, how those names can be used, and how one can be better prepared for the potential legalities of being a member of a band.  Notably, because I was the guest on this show, the examples and practical applications of the law centered heavily on bands like Yes and Asia, their line-up changes, and the legal issues they have had using their band names over the years.

You can listen to (and hopefully enjoy!) the podcast here!

Land Use Matter Taxing for Church

Nearly two millennia ago, Jesus of Nazareth sagely taught his followers to “render to Caesar the things that are Caesar’s”. In the 21st century it appears that the Commonwealth Court of Pennsylvania had similar advice for a Cheltenham congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) in the recent matter of First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (1551 CD 2010) (hereinafter “the Case”).

Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (hereinafter “the Government”) sought to collect property taxes on the real estate used by the Church.  The Church, of course, argued that it was entitled to a tax exemption as a principal place of religious worship.  The issue of whether the Church was entitled to an exemption to the taxes the Government sought forms the dispute addressed by the Court in the Case.

The Case’s procedural history is rather long and tangled, including stops at the Montgomery County Board of Assessment Appeals, Township of Cheltenham Zoning Hearing Board, the Court of Common Pleas (hereinafter “the Trial Court”), the Supreme Court of Pennsylvania, and one previous stop at the Commonwealth Court.  Ultimately, the Government was granted Summary Judgment by the Trial Court which was appealed to theCommonwealth Court.  TheCommonwealth Courtremanded to the Trial Court on the issue of whether the property was entitled to a tax exemption.  Upon remand, the Trial Court conducted a two-day non-jury hearing resulting in a decision adverse to the Church, specifically that the Church was not entitled to a tax exemption as an actual place of regularly stated religious worship.  The Church appealed to theCommonwealth Courtonce again, and it is the opinion issued from this appeal that is discussed herein.  The central issue discussed in the Case was whether the property-at-issue (hereinafter “the Property”) the Church claimed it was using, was an actual place of regularly stated religious worship; if it was, the tax exemption applies, if not, the Church would not receive the exemption.  In making its analysis, the Court focused squarely on the evidence presented by the parties at the aforesaid trial.

The Church initially alleged that it was a Korean Presbyterian denomination and that its pastor resides at the Property.  The Property is large, with multiple buildings surrounded by a chain link fence with a couple of locked gates as the only entrances.  Only one of the locked entrance gates was used and could be controlled by remote control from within the buildings at the Property.  The Church further alleged that a more senior cleric visits the Property once per month to preside over services and those services occurred each Sunday from4:30pmto6:00pm, which is followed by a congregational dinner.  The pastor testified at trial and admitted that the Church’s services are frequently attended only by his family and he controls the remote controlled security gate.  Additionally, while there is no sign at the Property identifying it as a church, the Church asserted that the lack of a sign was due to a zoning restriction.

The Government countered the Church’s allegations by asserting that the Property was in extraordinary disrepair and its grounds were overgrown and unkept.  Indeed, the Trial Court found that the Property requires more than $10,000,000 in repairs to make it usable.  In addition to “keep out” signs and other forms of security (such as the aforementioned remote controlled security gate restricting access to the Property), the only rooms on the Property which were heated were those used as the pastor’s residence.  The Government called a local police officer as a witness who conducted surveillance on the Property on seven (7) different occasions.  The police officer testified that he never saw anyone enter or exit the Property when services were alleged to have occurred, however he did see the pastor travel from one building to another within the Property to where services occur each Sunday.  Indeed, the Government implied that the Property was primarily the pastor’s residence as opposed to a church.

The Court determined that much of the Church’s evidence was not credible.  For example, the photographs presented by the Church were from before 1998, and the Church presented no recent photographs or recent church bulletins to demonstrate current religious use.  Ultimately, in view of the above evidence, the Court ruled that the Property was not used primarily as a church and, therefore, was ineligible for a tax exemption.

On appeal to the Commonwealth Court, the Church argued that that was no evidence that the Property was used for any other purpose aside from a church, that it has rooms which are clearly designed for a church to use, and that the Government repeatedly admitted the Church was what it claimed to be through various pieces of correspondence and such.  The Church also attacked the surveillance evidence by indicating that the police officer never interviewed anyone at the Church, that half of the surveillance reports were incomplete, and that, per the aforesaid reports, the lights were on in the building when the Church claimed to have services occurring.  Significantly, the Church pointed out that despite the claims for tax exemption made by the Church, and the allegedly extensive investigation and surveillance by the Government into the same demonstrating that the Church’s claims were allegedly bogus, the Government never pressed any charges when it allegedly discovered that the Church made spurious tax claims.  The Church asserted that the Government’s failure to act with regard to the crime of tax fraud allegedly committed by the Church was evidence that there was nothing illicit or false in the Church’s claim for a tax exemption and that the surveillance conducted on the Church was simply for the purpose of creating trial evidence.

Upon a full review of the evidence below, the Court ruled that the Trial Court did not commit abuse of discretion or an error of law in finding against the Church.  The Court found that there was sufficient evidence presented by the Government to prove that the Property was not primarily used as a Church.  The Court found that the Trial Court conducted an accurate and rather thorough analysis of the facts and issues presented and did not abuse its discretion or commit an error of law.  The Court found that there was simply insufficient evidence to prove that the Property was used by the Church primarily for religious purposes.

In the final analysis, when seeking a tax exemption, a Church must ensure that the Property it uses is primarily used for religious purposes; otherwise Caesar must receive what is his from it.

Originally published on January 10, 2012 in the Pennsylvania Law Weekly section of The Legal Intelligencer and can be found here.

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