THE LAW FIRM OF

TROFF · PETZKE · AMMESON 
 

811 Ship St., Suite 202, St. Joseph, MI 49085

269-983-0161

                                                                                                                                                   
 

Summer Newsletter                                                                      July 2008

In This Issue
Bad Reception: Federal Regulation of Condominium Association Restrictions on Antennas (Stephen W. Smith)
Transaction costs Associated With Selling Your Home (Bennett S. Schwartz)
Dissolution of Your Business Entity (Brian P. McMahon)
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YWCA
St. Joseph, MI 
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TPA attorneys assist YWCA in relocating its downtown daycare center.

by  Catherine P. Kaufman, Esq. 

 

Troff, Petzke & Ammeson attorneys Jeffrey R. Holmstrom and Catherine P. Kaufman recently assisted the YWCA in obtaining a conditional use permit to relocate its downtown St. Joseph daycare facility.  The YWCA needed to move its daycare facility because of the pending sale of its historic downtown St Joseph building on Pleasant Street.  The YWCA wanted to keep its daycare services downtown in order to continue to serve it current customers along with  downtown residents and business owners.  Accordingly, the YWCA asked Attorneys Holmstrom and Kaufman to assist them in obtaining approval from the City of St. Joseph to move the daycare facility to 306 State Street.

 

TPA's review of the City of St. Joseph Zoning Ordinance, however, revealed that daycare uses were not permitted in the D (Downtown) zoning district. The current YWCA daycare facility was a non-conforming use.   Hence, Attorneys Holmstrom and Kaufman petitioned the City for a zoning ordinance text amendment to allow day care centers in the D zoning district, as a conditional use.   TPA attorneys worked with City staff and the Planning Commission to craft conditional use regulations that were acceptable to both the YWCA and the City.   Issues that were discussed during the Planning Commission and City staff review included:  traffic, daycare drop off and pick up,  handicap accessibility, availability of outdoor play space, percentage of first floor space devoted to non-commercial activities and other safety related issues.   

 

TPA's responsiveness to Planning Commission and City staff concerns enabled TPA to draft a revised zoning ordinance text amendment to the Planning Commission and City Commission that satisfied the City's concerns.  Following the City Commission's approval of the zoning ordinance text amendment to allow daycare centers in the D zoning district, TPA thereafter obtained conditional use approval for the YWCA's daycare center.  

 

Currently, the YWCA is in the process of building out its new daycare space. The YWCA will relocate its existing facility to the State Street location in a few months.

 

TPA attorneys routinely assist clients in obtaining administrative approvals (conditional use permits) or zoning ordinance amendments (text or map amendments).   If you have any questions, please contact Jeffrey R. Holmstrom or Catherine P. Kaufman.

 
jholmstrom@tpalaw.com
 
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Jeff Holmstrom
 


  ckaufman@tpalaw.com 


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Katie


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Independent Contractor versus Employee

by  

 Brian P. McMahon, Esq.

  
The State of Michigan has recently formed the "Interagency Task Force on Employee Misclassification."  This task force was created to investigate businesses suspected of "misclassifying" their workers as "independent contractors" when the worker is legally an "employee."  If you are a business that utilizes the services of "independent contractors" you should Read More


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  LEGAL NOTICE


The Troff, Petzke & Ammeson Newsletter is published as a free service to our clients and friends. The articles in our Newsletter are for general information and cannot be relied upon as legal advice or opinion.  It is simply not possible to provide competent legal advice without knowledge of the specific facts attendant to any given situation.  Therefore, if you have questions regarding an article in our Newsletter you are encouraged to contact the author to discuss the topic further.

Lighthouse    
 
 
 
Greetings!
 

Troff, Petzke & Ammeson is pleased to announce the August 1, 2008 opening of our new office in downtown New Buffalo. Troff, Petzke & Ammeson has served Southwest Michigan families and businesses since 1880. The addition of a New Buffalo office will enhance our ability to serve  our clients and further demonstrate Troff, Petzke & Ammeson's long-standing commitment to Harbor Country and all of Southwest Michigan.

 

Bad Reception: Federal Regulation of

Condominium Association Restrictions on Antennas

by Stephen W. Smith, Esq.

 

 

Following the passage of the Telecommunications Act of 1996, the Federal Communications Commission ("FCC") issued rules limiting restrictions imposed by public and private entities on individuals' use of "over-the-air reception devices" ("OTARD") - antennas, including dish antennas, which receive video programming via television, satellite or broadband radio (wireless cable) broadcasting, which receive or transmit fixed wireless data signals.  Known as the OTARD rules, they generally prohibit restrictions imposed by, among others, condominium associations, which impair or impede the installation, maintenance and use of such antennas.

 

To fall within the coverage of the OTARD rules, an antenna must be located on property owned or rented by, and within the exclusive use or control of, its user.  Furthermore, the rules only cover antennas up to one meter (39.37 inches) in diameter or diagonal size, with the exception of television broadcast antennas which are not limited by size.  If an antenna does fall within their coverage, the OTARD rules prohibit any regulation or restriction which unreasonably delays or prevents, or unreasonably increases the cost, of the installation, maintenance or use of that antenna, or which precludes the antenna's reception or transmission of an acceptable quality signal.

 

 
This article discusses the limitations which the OTARD rules impose on condominium associations and the regulations which they are considering issuing - or have already issued - restricting the ability of association members to install, maintain or use antennas. (Read More...) 
Stephen W. Smith 
 
 
         ssmith@tpalaw.com
 
 
 
 
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TRANSACTION COSTS ASSOCIATED WITH SELLING YOUR HOME

by Bennett S. Schwartz, Esq. 

 

In order to avoid a potentially unpleasant surprise regarding your closing costs at the conclusion of your residential real estate transaction, inquiry should be made with a real estate attorney with respect to your anticipated closing costs early on in the process.   Once the contract is signed for the sale of your home, it is likely too late to do anything about these subsequently discovered costs, or to renegotiate with your Buyer.  Some of these costs to consider are:

 

SURVEY

 

Usually a Buyer will request a boundary stake survey showing all improvements on the property.  The cost for a survey can be anywhere from several hundred dollars to in excess of one thousand dollars.   This is a negotiable cost, and there is no legal requirement that the Seller automatically be responsible for this payment.  Your real estate attorney can evaluate your contract in totality and advise you as to the appropriateness of attempting to allocate this survey cost to your Buyer.

 

HOME INSPECTION

 

A Buyer will often negotiate for the right to have certain inspections done with respect to the property.  These might include a generic home inspection of the structure; mechanical systems, etc.; pest inspection; inspection for lead based paint and other environmental hazards;  and, where applicable, a well water and septic inspection.   Generally these costs will be incurred by the Buyer so long as the undertakings for these inspections are performed in a reasonably prompt manner and within certain contractual parameters.

 

TITLE COMPANY CLOSING TRANSACTION FEE

 

Today, most residential real estate closings are held at a title insurance company.   This individual will be responsible for preparing a variety of forms incident to the closing of the transaction.   The charges for this service continue to increase, and now may consist of several hundred dollars.   Again, whether the Buyer or the Seller is responsible for the payment of this transaction fee is negotiable.   Consequently, you should be mindful at the time of negotiating your purchase agreement, of the potential for shifting this fee to the Buyer or perhaps sharing this expense equally.

 

OWNERS' POLICY OF TITLE INSURANCE

 

This is an insurance premium charged by the title insurance company for the Buyer's benefit, insuring that the Buyer is obtaining good and marketable title from you with respect to the real property.   It is generally accepted that it is a Seller's obligation to pay for the cost of an owners' title insurance policy.  Title insurance is expensive, and is determined based upon the sale price of the property.  A sale in the amount of $250,000, for example, will cost the Seller about $1,185.00.

 

 

MICHIGAN TRANSFER TAXES

 

Michigan Transfer Taxes are charges payable by a Seller.  Payment of Transfer Tax some years ago was hardly noticeable when Michigan only required a County Transfer Tax of $1.10 per $1,000 of sale price.   Unfortunately, we now have a State Transfer Tax in the amount of $7.50 per $1,000 of sale price.   This total State and County Transfer Tax ($8.60 per $1000) must be collected at the time of closing.   While customarily these charges are paid by the Seller, occasionally they can be allocated to the Buyer.

 

In conclusion, there are numerous other charges and expenses associated with the sale of residential real estate.   If you have a mortgage on the property, the mortgage balance will need to be paid off and taken out of your sale proceeds at the time of closing.   Real estate property taxes will need to be prorated.  A real estate attorney should be consulted when you sell real estate for assistance in thoroughly examining your costs associated with the sale of real estate and guide you in making sure that you do not pay more than what is legally required and appropriate.

 
Ben Schwartz 


                 

               bschwartz@tpalaw.com 
 
 
 
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Dissolution of Your Business Entity 

by Brian P. McMahon, Esq.

 

There are primarily four reasons why a business entity is dissolved.  These are:  1.) retirement of an owner(s) with no plan for succession; 2.) as part of administering the estate upon the death of an owner; 3.) a breakdown in the relationship between multiple owners; and, 4.) creditor/financial issues.  Although the fundamental process of dissolution is similar regardless of the reason, there are unique requirements depending on the reason including consideration of not only business laws, but estate and probate laws as well.  The process is also fundamentally the same whether the "business entity" is a corporation, limited liability company or other form of owning and operating a business.

 
There are two ways to "dissolve" a business entity, namely, "informally" and "formally."  Informal dissolution is not so much a process as it is a decision to let the business entity "die a natural death" by simply informing the State of Michigan and the Internal Revenue Service that the entity is ceasing its operations.  Formal dissolution is when an actual "Certificate of Dissolution" is filed with the State of Michigan; the statutory process set forth in the Michigan Business Corporation Act ("MBCA") for dissolving a business entity is followed; and, the necessary documents are filed with the Internal Revenue Service.
 
Regardless of whether the business entity is informally or formally dissolved, the company needs to go through a process called "winding up."  During the "winding up" process the assets of the business entity are marshaled and liquidated, debts are paid and the remaining assets, normally money, are distributed to the shareholders/members.  However, the decision whether the business entity will be informally or formally dissolved needs to be made before beginning the actual "winding up" process.
 
Perhaps the most important factor in choosing between informal dissolution and formal dissolution is...(Read More...)  

 Brian P. McMahon

 

 bmcmahon@tpalaw.com

 
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