Author(s): John J. Gillooly, April Sawhill, Robert Vozza, Robert Goldstein

- Complimentary Seminars – Breaking News! – Environmental Insurance: A Tool in Redeveloping Brownfields – Local Parking Ordinances and their Enforceability as to Disabled Individuals

FROM GARAN LUCOW MILLER’S MUNICIPAL LAW DEPARTMENT GOV LAW Monthly Publication for Michigan Cities, Townships, Villages and Schools Garan Lucow Miller, P.C. 1000 Woodbridge Street Detroit, Michigan 48207 313.446.1530

From the Editor by John J. Gillooly Complimentary Seminars. For more than 60 years, Garan Lucow Miller, P.C. has been providing its clients with effective and efficient solutions to their legal needs. Keep in mind, however, that our work starts long before a lawsuit is filed. That’s where we work for free. Absolutely free. We are on the road just about every month educating leaders in government, business and insurance about current trends in the law. Our free breakfast seminars have become known as an important tool in recognizing current trends. We currently have seminars scheduled on May 19, 2005 in Grand Rapids; June 7, 2005 in Troy; and September 15, 2005 in Indianapolis. When we aren’t doing breakfast seminars, we are at claims offices, city halls and corporate conference rooms giving free advice on how to protect your assets. Whether talking about excessive force claims or pending legislation, an educated client has a decided advantage over the competition. Please feel free to invite us to your claims office, city hall or corporate conference room for a free seminar. You won’t be disappointed. Please feel free to call me directly at 313.446.5501.

BREAKING NEWS!! The highway exception to governmental immunity does not impose a duty on governmental agencies to ensure that the highway is designed for safe travel. Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492 (2002). A claim that vegetation and dirt accumulated along the shoulder of the highway allowed water to pool on the traveled portion which caused a vehicle to hydroplane out of control did not fall within the highway exception. Ulrich v Dept of Transportation, Michigan Court of Appeals, Unpublished No. 252525, issued April 14, 2005. The Court found that plaintiff’s allegations dealt with a design issue rather than a lack of maintenance.

A special conflict panel of the Michigan Court of Appeals was convened to address a conflict in opinions regarding a municipality’s liability for injuries resulting from a defective traffic control device. The special panel held that the highway exception to governmental immunity does not impose a duty on municipalities to install, maintain, repair, or improve traffic signals. Johnson-McIntosh v City of Detroit, ___ Mich App ___ (2005) (No. 244349). Reserve Your Seat for GLM’s Free Auto Liability Seminars May 19, 2005 in Grand Rapids lbeatty@garanlucow.com June 7, 2005 at the Troy Marriott bbezenah@garanlucow.com

GARAN LUCOW MILLER’S GOV LAW PAGE 2 GARAN LUCOW MILLER, P.C. ANN ARBOR • DETROIT • GRAND BLANC • GRAND RAPIDS • LANSING • MARQUETTE • PORT HURON • TRAVERSE CITY • TROY Environmental Insurance: A Tool in Redeveloping Brownfields by April Sawhill and Robert Vozza What are Brownfields? Brownfield is the term used to describe a piece of property that may be contaminated by the presence or potential presence of a hazardous substance, pollutant or contaminant. Such conditions complicate the expansion, redevelopment, or reuse of these properties. Brownfields can range from gas stations and drycleaners to industrial parks, waterfronts and beyond.

Redevelopment Assistance. There are a myriad of concerns associated with redevelopment of Brownfields, such as unanticipated cleanup costs and fears of unforseen liability, that may seem like insurmountable obstacles or barriers that dissuade public sector officials from investing in Brownfields. In 1995, the United States Environmental Protection Agency founded the Brownfields Program to assist states, communities, and other stakeholders in the economic redevelopment of these properties. Environmental Insurance. One tool that municipalities can use to limit their exposure and the liabilities associated with Brownfields is environmental insurance.

A variety of environmental insurance products are available and can be combined to make the right policy for your Brownfield redevelopment. As each Brownfield has its own particular nuances and issues, insurance policies are highly tailored to the specific project and may combine different features of the three main classes of coverage detailed below. Pollution Liability. This is the most common form of pollution coverage and provides protection against expenses associated with unknown contamination or known pollution conditions disclosed at the time the policy was written. Such coverage can also include accidental releases which may occur during the life of the policy. This type of policy covers essentially three types of risks:

1. Third-party claims. This may include both private and governmental entities enforcing environmental regulations. Such claims can occur both on and off site and include claims for bodily injury, property damage, offsite remediations and other expenses including business interruption.

2. First-party claims. This protects the insured against its own expenses resulting from onsite cleanup costs including cleanup of previously unknown, but preexisting pollution. Business interruption and “reopener” coverage is also available in instances where environmental regulators re-open a matter after having previously approved the remediation.

3. Legal defense costs. These costs are generally covered as such policies state that the insurer has both the right and the duty to defend the insured against claims for either monetary damages or for remediation costs. Cost Cap. Essentially, this insurance protects against cost increases incurred during the course of an existing remediation effort. Such insurance, dependent on the carrier, can cover discovery of a greater volume or higher concentration of pollution, discovery of previously unknown contaminants or project delays caused by unexpected contamination.

Secured Lender. This type of insurance is geared towards protecting the lender rather than the developer. Such insurance aids in securing the necessary funds from lenders. Some carriers provide insurance for a secured lender of a given project that may include reimbursement for the lesser of cleanup costs or the loan balance, the cost of third-party claims resulting from pollution and legal defense costs to defend third-party claims. Conclusion. As the interest in environmental insurance by the public sector increases, municipalities and local government units can expect to see more efforts by insurance carriers to adapt and innovate their insurance products in order to meet the particular needs of their public sector customers. Until that time, public officials should consider the benefits that intermediaries and consultants with expertise in this area could provide in helping them gain the appropriate coverage for their proposed or ongoing Brownfield projects.

Local Parking Ordinances and their Enforceability as to Disabled Individuals by Robert Goldstein

In an effort to facilitate accessibility to retail shops in Downtown Monroe, and also to accommodate the merchants’ desire to encourage retail shopping in the downtown area, the City of Monroe designated approximately nine (9) on-street parking spaces with unmetered parking allowing for free parking for no greater than one hour. Three of the parking spaces are designated for disabled users, but were one-hour parking as well. An individual who suffers from multiple sclerosis and worked in Downtown Monroe, utilized a one-hour parking space adjacent to the office for the entire work day. While there is other free, all-day parking available within two blocks of the office, the employee claimed she was unable to walk from any of these lots due to her disability.

The City issued Jones numerous tickets. This resulted in litigation both in state and federal courts. In the federal action, Jones v City of Monroe, 341 F3d 476 (2003), Jones alleged that the City parking program violated the Americans with Disability Act (“ADA”) and § 504 of the Rehabilitation Act of 1973. Jones filed a motion for preliminary injunction requesting that the federal district court order the City to modify its parking program to grant Jones free, all-day parking adjacent to her employment. The court denied Jones’s motion.

The Sixth Circuit Federal Court of Appeals affirmed the district court. The Court of Appeals concluded that access to the one-hour free parking spaces was “facially neutral.” In further analyzing the issue, the Court concluded: “That the one-hour limit applies to individuals with disabilities and those without disabilities. Similarly, both disabled and able-bodied persons may park in an all-day parking space. Both one hour and all-day parking areas have spaces for disabled and non-disabled individuals. The parking limitations do not affect disabled and non-disabled individuals differently in any respect.” The court rejected Jones’s ADA claim agreeing with the City that this accommodation was in the nature of “immunity from prosecution for her violations of Monroe’s neutral parking and enforcement ordinances.” At the core of the holding was the following:

“By its very nature, the benefit of one-hour free public parking cannot be altered to permit disabled individuals to park all day without jeopardizing the availability of spaces to other disabled and non-disabled individuals. Such a waiver would also require Monroe to cease enforcement of an authorized valid ordinance which by its very nature requires a fundamental alteration of the rule itself.” In the state court action, the City moved to reduce the 203 parking ticket violations of Jones to a money judgment. The state district court did so rejecting Jones’s contention that the ability of the City to ticket her under a City ordinance was prohibited by Michigan state statute. The court found that the City could ticket under its local ordinance and was not restricted to ticketing Jones for the violation under the state statute.

The state circuit court affirmed. Jones filed an appeal with the Michigan Court of Appeals which agreed with Jones that the Michigan statute, MCL 257.675(6) relieves a disabled person, with the appropriate placard, from liability from a parking violation under a local ordinance. 259 Mich App 443 (2003). Hence, the Court of Appeals found that the tickets for the parking violations were unenforceable. The Supreme Court denied review.

The effect of the state appellate determination was that a disabled person could not be ticketed for violating a local parking ordinance; but rather, the citations would have to be for violating the state statute, MCL 257.674(1)(W). In sum, the conclusion from these cases is that municipalities may regulate the parking within their localities for disabled and non-disabled individuals as long as they do not affect disabled and non-disabled individuals differently in any respect. Enforcement of such a parking regulation must be cited with reference to the appropriate Michigan statute which results in the fines being designated as State monies and cannot be applied locally by the municipality. The City was represented in both actions by Tom Paxton, a shareholder in GLM’s Detroit Office, 313.446.1530 and Robert D. Goldstein, a shareholder in GLM’s Grand Blanc Office, 810.695.3700. Contact either of them to discuss the cases.