Land Use Law Report
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Articles for the year 2006

 
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Total Result(s) Found: 51

 

Land Use Law Report, Number 12, December 2006

 

New ‘Zoning Action’ Definition Gives Shipping Company Clear Passage for Zoning Challenge

Sunday, December 17, 2006

Maryland Overpak Corp. v. Mayor and City Council of Baltimore, No. 76, 2006 Md. Lexis 693 (Oct. 16, 2006) A shipping corporation has prevailed on its judicial review petition for Baltimore’s Canton Crossing development plan. The Maryland Court of Appeals ruled that amending a planned unit development (PUD) to permit burgeoning residential dwellings in an area zoned for heavy industrial

Proposed Dynamite Bunker Sparks Neighborly Concern

Sunday, December 17, 2006

Clifford v. Planning and Zoning Commission of Ansonia, 280 Conn. 434 (Conn. 2006) The Supreme Court of Connecticut has granted a resident’s request to challenge a neighboring landowner’s proposed storage structure — a dynamite bunker. The court deferred to the planning and zoning commission’s decision not to hold a public hearing on the matter, but it also [...]

In Brief: Town Can Prohibit Standard Billboards

Sunday, December 17, 2006

Township of Exeter v. Zoning Hearing Bd. of Exeter Township , No. 2545 C.D. 2005, 2006 Pa. Commw. Lexis 560 (Nov. 1, 2006) An appeals court in Pennsylvania has declined to find a zoning ordinance prohibiting standard-sized billboards unconstitutional. Because the ordinance does not prohibit all billboards in the municipality, the ordinance is neither totally nor effectively [...]

In Brief: Standing Water Burden Means School Will Have to Back Down to Servient Estate

Sunday, December 17, 2006

Gabel, et. al., v. Miami East School Board , No. 2005-CA-41, 2006 Ohio App. Lexis 5920 (Nov. 9, 2006) The Ohio Court of Appeals ruled that the Miami East School District (School) went beyond the terms of the School’s existing stormwater easement by also draining wastewater across the servient estate. The court agreed with Thomas and Christine Gabel (Gabels), the servient estate landowners [...]

In Brief: U.S. Can't Take a Disabled Woman's Home to Satisfy Ex-Husband's Tax Bill

Sunday, December 17, 2006

Johns had held the Property as a tenant-in-common with her ex-husband since their divorce 14 years previous. The court found that the half of the land belonging to Johns was homestead property not subject to forced sale by creditors under the Florida constitution and further that it would be inequitable to foreclose on Johns’ portion of the Property. Accordingly, the court agreed to [...]

Bureaucratic Hurdles and Bribery Concerns Fire Up Marlborough Man

Sunday, December 17, 2006

Over the next decade, Mongeau spent $675,000 cleaning up the contaminated parcels in order to develop the property. In 2003, he submitted a preliminary application for the construction of a building on the revitalized land. However, Reid, as Commissioner of Inspectional Services, rejected the application, citing the lack of proper frontage and access. The Zoning Board of Appeals later offered [...]

Zoning Regulations Can Control Size of Church Without RLUIPA Worries

Sunday, December 17, 2006

Vision Church (Vision) members did not envision the difficulties they would face when they purchased land for a church complex in rural Lake County, Illinois. The approximately 120-member Korean-American, United Methodist assembly purchased a 27.4-acre lot zoned for church development in unincorporated Lake County in September of 2000. Since many Korean immigrants had settled there, Vision forecast [...]

Couple's Claim Over Waterway Permit Runs Aground

Sunday, December 17, 2006

Rita Mohlen and Richard Skrinde (Plaintiffs) jointly owned residential waterfront property that included a pier, boathouse, boat hoist and floating dock located in the Oakland Inner Harbor Tidal Canal, a federally owned waterway. In 2002, the Army Corps of Engineers (Corps) granted Plaintiffs an NWP quot; a permit to preserve or build a structure in navigable waters. Plaintiffs’ NWP specifically [...]

Community Welfare and Comprehensive Plan Alignment Make Agriculture Rezoning a Go

Sunday, December 17, 2006

The Institute of Northwest Passages, Inc. (INP) applied for rezoning over 100 acres of land in Kittitas County, Washington, to an AG-3 zone. Unlike the “forest and range” zone where “natural resource management” was the highest priority, AG-3 permitted agriculture, forestry and single family residence. Another notable difference was that of lot size; “forest and [...]

City Can Regulate Sex Shops to Control Secondary Effects Without Violating Free Speech

Sunday, December 17, 2006

The U.S. Court of Appeals for the Seventh Circuit has held that an ordinance (Ordinance) promulgated by the city of Gary, Indiana (City) survives constitutional challenges from a group of area sex shops (Plaintiffs). Plaintiffs claimed the Ordinance impinged on their First and Fourth Amendment rights, but the appellate court upheld the City’s governmental interest in addressing secondary [...]

 

Land Use Law Report, Number 11, November 2006

 

Court Calls Out Cell Phone Company on Tower Proposal

Friday, November 17, 2006

USCOC of Greater Iowa, Inc. v. City of Des Moines, No. 05-3049, 2006 U.S. App. Lexis 25354 (8th Cir., Oct. 11, 2006)The U.S. Court of Appeals for the Eighth Circuit reversed a decision that would have allowed USCOC of Greater Iowa (USCOC), a cellular service provider, to construct a monopole cellular tower over the objection of the local zoning board (Board). Instead, the court [...]

NEPA Requires Army to See All There Is to See

Friday, November 17, 2006

‘Ilio’ulaokalani Coalition v. Rumsfeld, No. 05-15915, 2006 U.S. App. Lexis 24911 (9th Cir., Oct. 5, 2006)A coalition of Hawaiian organizations — a nonprofit and two unincorporated associations — challenged the Army’s decision to transform its 2nd Brigade into a Stryker Brigade Combat Team (SBCT) and relocate the unit from Oahu to the big island [...]

Court Stifles Free Speech Claim since County Provides Plenty of Opportunities for SOBs

Friday, November 17, 2006

County of Morrison v. Wheeler, No. A05-2002, 2006 Minn. App. Lexis 146 (Oct. 10, 2006)Morrison County, Minnesota threw every book it could find at an adult-use business (AUB) in a bid to protect county residents from the harmful secondary effects of sexually oriented businesses (SOBs). The county filed a complaint on October 30, 2003, accusing Lookin Fine Smut & Porno (Smut [...]

County Gambles on Agreement with Tribe — and Loses

Friday, November 17, 2006

Alexanderson  v. Board of Clark County Commissioners, No. 33750-9-II, 2006 Wash. App. Lexis 2285 (Oct. 17, 2006)A Washington appellate court declared that a Memorandum of Understanding (MOU) between the Cowlitz Indian Tribe (Tribe) and Clark County (County) constituted a de facto amendment to the County’s comprehensive land use plan because the MOU’s terms directly [...]

Disability Must Constitute Sole Cause for Reasonable Accommodation

Friday, November 17, 2006

Wisconsin Community Servs. v. City of Milwaukee, No. 04-1966, 2006 U.S. App. Lexis 24259 (7th Cir., Sept. 26, 2006)The central legal question presented by plaintiff Wisconsin Community Services (WCS) was whether and to what extent a city must modify its zoning standards to prevent it from discriminating against the disabled. In remanding the case for further proceedings, the [...]

Three’s a Crowd in Request for Zoning Change

Friday, November 17, 2006

Jenniskens vs. Parish of Jefferson, No. 06-CA-252, 2006 La. App. Lexis 2276 (Oct. 17, 2006). In Jefferson Parish, Louisiana, the local council (Council) reasonably denied a request for zoning changes when three properties combined themselves into one unit for purposes of a rezoning request. Though the Council would have likely found justification to rezone two of the properties [...]

Neighbors Cry ‘Enough Development,’ but Court Disagrees

Friday, November 17, 2006

Eternal Investments v. City of Lee’s Summit, No. 05-0521-CV-W-FJG, 2006 U.S. Dist. Lexis 73625 (D. W. Mo., Oct. 10, 2006)A U.S. district court has held that a city council acts unreasonably when it exercises its zoning power to maintain an agricultural classification when all the neighboring properties have already been zoned or re-classified to allow low density single [...]

Failure to Satisfy Takings Exception Paves the Way for Nashville Condominiums

Friday, November 17, 2006

Metropolitan Development and Housing Agency v. Eaton, No. M2005-02044-COA-R3-CV, 2006 Tenn. App. Lexis 670 (Oct. 13, 2006)Landowners’ desire to redevelop their own property in accordance with a city development plan was insufficient to defeat the government’s right of eminent domain, ruled the Tennessee Court of Appeals. In 1993, the Metropolitan Government [...]

In Brief ~ Court Scans, Bags City’s Claims Against Grocery Store

Friday, November 17, 2006

Mi Pueblo San Jose, Inc. and Cha Cha Enterprises, L.L.C. v. City of Oakland, No. C-06-4094 VRW, 2006 U.S. Dist. Lexis 75109 (N.D. Cal., Oct. 5, 2006)Mi Pueblo San Jose and Cha Cha Enterprises (Plaintiffs) brought a claim against the City of Oakland (City) in response to the City’s actions, which had halted construction of Plaintiffs’ grocery store. The U.S. District [...]

In Brief ~ Breach of Wetlands Contract Sinks City

Friday, November 17, 2006

City of Green Isle v. Timothy E. Boelter, et al., No. A05-2161, 2006 Minn. App. Unpub. Lexis 1120 (Oct. 3, 2006)The City of Green Isle, Minnesota (City) called on the Minnesota Court of Appeals to reverse a district’s court ruling that the City breached a contract over local wetland use. Instead, the court affirmed the decision and upheld a literal interpretation of the [...]

In Brief ~ Timing is Everything for Neighbors Complaining of Ignored Ordinances

Friday, November 17, 2006

Manian v. County Council, No. 1305, 2006 Md. App. Lexis 230 (Sept. 29, 2006)A Maryland appeals court has held that the Montgomery County council did not err in approving a development plan amendment despite neighbors’ allegations of erroneous open space calculations. The court reasoned that the planning board would address such issues at the more appropriate site plan approval [...]

In Brief ~ Make a Promise You’ll Need Help to Keep and It Could Cost You

Friday, November 17, 2006

Farrow v. Sunra Coffee, L.L.C., No. 05-00715 HG-BMK, 2006 U.S. Dist. Lexis 73162 (Haw., Oct. 6, 2006)The U.S. District Court for the District of Hawaii has held that a party who cannot fulfill a contractual promise because of a lack of necessary governmental approval is liable for damages.  No legal impossibility defense is available if the risk that a third party would not [...]

 

Land Use Law Report, Number 10, October 2006

 

Off-road Vehicle Interest Can&Rsquo;T Run Over Environmental Concerns

Tuesday, October 17, 2006

Utah Shared Access Alliance v. Carpenter, No. 05-4009, 2006 U.S. App. Lexis 23745 (Sept. 19, 2006)The U.S. Court of Appeals for the Tenth Circuit upheld restrictions that the Bureau of Land Management (BLM) imposed on off-road vehicle (ORV) use on federal lands in the state of Utah. In doing so, the court cited the importance of BLM’s duty to maintain the environmental integrity [...]

Court Upholds FonsI — Happy Days for U.S. Army Corps of Engineers

Tuesday, October 17, 2006

Sierra Club v. U.S. Army Corps of Engineers, No. 05-1724 (JAP), 2006 U.S. Dist. Lexis 70803 (Sept. 28, 2006)The U.S. District Court for the District of New Jersey declared Plaintiffs’ case all wet in a suit brought by the Sierra Club, a public interest citizens lobby and the New Jersey Environmental Federation (Plaintiffs) against the U.S. Army Corp of Engineers (USACE) and [...]

Board’s Discretionary Authority Derails Due Process Claims

Tuesday, October 17, 2006

Nichols v. Bd. of County Comm’rs, No. 04-cv-01387-WYD-MEH, 2006 U.S. Dist. Lexis 68801, (Sept. 25, 2006)Colorado ranch owners took their county commissioners to court for violating their procedural and substantive due process rights when the board refused to modify their special use permit. Their argument: You let our neighbor do it. However, the U.S. [...]

Court Erects Stop Sign in Front of Right-Turn Lane’s Federal Review

Tuesday, October 17, 2006

Sadler v. Mineta, No. 3:05-CV-1189, 2006 U.S. Dist. Lexis 69122 (D. Conn., Sept. 26, 2006) The U.S. District Court for the District of Connecticut has ruled that the Federal Highway Administration (FHWA) is not required by law to review or approve widening an interstate highway exit ramp to provide an additional right turn lane on the local end of the road.In this case [...]

Sexually Oriented Businesses Contend Zoning Ordinances Put First Amendment Rights in A Compromising Position

Tuesday, October 17, 2006

Central Avenue, Inc. vs. The City of Charlotte, No. 3:02CV00014-MU, 2006 U.S. Dist. Lexis 68074 (W.D.N.C, Sept. 6, 2006)A federal court will permit adult businesses in Charlotte, NC to proceed on claims that the City’s Adult Zoning Ordinance (AZO) and Sexually Oriented Business Ordinance (SOB) violate the First Amendment.  The court denied the city’s motion [...]

District Court Defers to Army Corps of Engineers in Historic New Hampshire Brouhaha

Tuesday, October 17, 2006

Northwest Bypass Group, v. U.S. Army Corps of Engineers, No. 06-CD-00258-JAW, 2006 U.S. Dist. Lexis 67117 (D.N.H., Sept. 15, 2006)The Northwest Bypass Group (NBG) needed to mount a strong showing when it took on the Army Corps of Engineers and the City of Concord in seeking a temporary restraining order against construction over a historic Concord property.  As it turned [...]

Everybody Files Motion to Intervene on the Steens

Tuesday, October 17, 2006

Oregon Natural Desert Ass’n. v. Shuford, No. 06-242-AA, 2006 U.S. Dist. Lexis 64452, (D. Or., Sept. 8, 2006)The county, private landowners and Native Americans all wanted a piece of the action when the Oregon Natural Desert Association (ONDA) filed suit against the U.S. Bureau of Land Management (BLM) over the management of Steens Mountain. Each party filed a motion to

No Environmental Analysis Needed for Environmentally Neutral Forest Service Rule

Tuesday, October 17, 2006

Bradshaw v. U.S. Department of Agriculture, No. CV-05-0916-PCT-PGR, 2006 U.S. Dist. Lexis 71888 (D. Ariz., Sept. 30, 2006)The National Environmental Policy Act (NEPA) generally requires federal agencies to complete environmental analysis prior to taking major federal action significantly affecting the quality of the human environment.  However, the U.S. District Court [...]

Court Slices through City Ordinance Prohibiting Sandwich Boards

Tuesday, October 17, 2006

Ballen v. City of Redmond, No. 04-35606, 2006 U.S. App. Lexis 23467 (9th Cir., Sept. 15, 2006)The U.S. Court of Appeals for the Ninth Circuit affirmed a decision upholding a portable sign ordinance (Ordinance) as unconstitutional under the First Amendment. The court ruled that the ordinance overshot its desired aims and therefore failed the Central Hudson test governing [...]

Scenic Easement Doesn’t Go to the Dogs

Tuesday, October 17, 2006

U.S. v. Ron and Mary Park, No. CV05-213-N-EJL, 2006 U.S. Dist. Lexis 66399, (D. Idaho, Sept. 15, 2006).In a contest regarding whether a dog kennel could be considered livestock farming under the interpretation of a scenic easement restriction, the Idaho district court declared that Ron and Mary Park (Defendants) were barking up the wrong tree. The U.S. Forest Service [...]

In Brief — Court Oks Right Of Christians To Mix With Lions (Clubs)

Tuesday, October 17, 2006

New Life Ministries v. Charter Twp. of Mt. Morris, No. 05�, 2006 U.S. Dist. Lexis 63848, (E.D. Mich., Sept. 7, 2006)Although church and state generally must remain separate, religious organizations are entitled to equal treatment under the law — at least under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The U.S. District Court for the [...]

In Brief ~ Neighbor Can&Rsquo;T Force Own Construction Just Because State Allows Nearby Development

Tuesday, October 17, 2006

Waimea Bay Associates One, L.L.C. v. Young, No. 05-00764, 2006 U.S. Dist. Lexis 67415 (D. Haw.,Sept. 18, 2006) If you want to make a case for a local agency’s unequal treatment of land development within a particular subzone, you’ll need to break out some solid expert evidence. Hint: Using your opponent’s expert witness to validate your main argument [...]

In Brief ~ Court Finds Cracks in Homeowner’s Foundation for Federal Review

Tuesday, October 17, 2006

Wiltzius v. Town of New Milford, No. 3:05-CV-661(JCH), 2006 U.S. Dist. Lexis 70386 (D. Conn., Sept. 18, 2006)The U.S. District Court for the District of Connecticut has ruled that variances granted to a trailer park in a residentially zoned area and resulting in damage to an adjacent property support a federal claim for violations of substantive due process.  The court further [...]

 

Land Use Law Report, Number 9, September 2006

 

Railroad Can Control Its Permittees’ Behavior — But Bows to Local Law for Its Own

Sunday, September 17, 2006

Alaska Railroad Corporation v. Native Village of Eklutna, Supreme Court No. S-11619, No. 6040; 2006 Alas. Lexis 128 (Al. Sept. 1, 2006)This decision is the Alaska Supreme Court’s latest in a lengthy struggle between the Alaska Railroad Corporation (Railroad) and the Native Village of Eklutna (Eklutna). The matter opened when Eklutna challenged the Municipality of Anchorage [...]

Nevada Must Cool Its Heels As Debate Over Nuclear Waste Storage Facility Heats Up

Sunday, September 17, 2006

Nevada v. DOE, 457 F.3d 78 (D.C. Cir. 2006)If someone was preparing to put an underground nuclear waste repository in your backyard, you might be itching to intervene as quickly as possible. The State of Nevada has felt an equal sense of urgency since scientific, political, and regulatory communities have come to a consensus that Yucca, Nevada would make a prime storage spot [...]

7 Mistakes a Land Use Expert Witness Must Avoid

Sunday, September 17, 2006

Brace v. U.S., No. 98-897-L, 2006 U.S. Claims Lexis 235 (Fed. Cl. Aug. 4, 2006)Plaintiff Brace, owner of 600 acres in Erie County, Pennsylvania, filed an action in the United States Court of Federal Claims claiming a regulatory taking of his property in violation of the Fifth Amendment to the Constitution. A portion of his property was considered to be wetlands under the Clean [...]

‘Leapfrog Development’ Defense Fails to Hurdle Imposition of Substantial Burdens in RLUIPA Case

Sunday, September 17, 2006

Guru Nanak Sikh Soc’y v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) prohibits the government from imposing “substantial burdens” on religious exercise, unless such exercise interferes with a compelling government interest. Sponsors of the Bill, Senators Hatch and Kennedy, stated [...]

Plaintiffs Concrete Claims of Injury Prevail, While Racial Discrimination Claims Fail

Sunday, September 17, 2006

Lee Taliaferro v. Darby Township Zoning Board, 458 F.3d 181 (3rd Cir. 2006)Plaintiff/appellant property owners who alleged that their property values would diminish and their neighborhood suffer blight if a self-storage facility were constructed next to their property were slowed—but not wholly defeated—by Defendants/Appellees’ argument that the owners lacked [...]

Town Planning Board Uses Its ‘Discretion’ to Overcome Fourteenth Amendment Claim

Sunday, September 17, 2006

Clubside, Inc. v. Valentin, No. 05-0541-cv(L), 2006 U.S. App. Lexis 23651 (Sept. 13, 2006)In order to prevail on a constitutional claim, a party must have a constitutionally protectable interest. The United States Court of Appeals for the Second Circuit recently found that a landowner held no such interest despite its claim that a town’s planning board violated its 14th [...]

No Liens Allowed Against Public Property

Sunday, September 17, 2006

North Bay recorded a mechanic's lien against the property and served a claim on the City, advising it that as the property's owner and lessor, it might be responsible for the reasonable value of the materials and labor North Bay provided. The City demurred on the ground that no one can enforce a mechanic's lien against public property. The trial court agreed with the City, and North Bay appealed. [...]

 

Land Use Law Report, Number 8, August 2006

 

Slants & Trends

Thursday, August 17, 2006

‘TRUST BUT VERIFY’ was the late President Reagan’s mantra, it is said. It is good advice for landowners also, as the case reported on page 113 illustrates.Appellate courts generally are wary of landowners’ claims that they relied on advice from municipal officials, to their detriment, in making development decisions. The reasons for the courts

Treatment Facility Is ‘Dwelling’ Under Fair Housing Act

Thursday, August 17, 2006

The federal Fair Housing Act (FHA) makes it unlawful to discriminate in the sale or rental of a dwelling to any buyer or renter because of the handicap of a person who will reside there after the sale or rental. The 3rd U.S. Circuit Court of Appeals has ruled that a resort planned to be converted to a drug- and alcohol-treatment facility is a “dwelling” under the FHA (Lakeside [...]

Airport Height Restrictions Taking, Nevada Supreme Court Holds

Thursday, August 17, 2006

A Clark County, Nev., ordinance limiting the height of buildings in the county airport’s runway glide path was a compensable regulatory taking, the state supreme court ruled, in a 7-2 decision (McCarran International Airport v. Sisolak No. 41646, July 13, 2006). The dissenting judges argued the case should have been analyzed under the Penn Central rules, rather than [...]

Nonconforming Marina Not Entitled To Coastal Law&rsquos Protection

Thursday, August 17, 2006

A city zoning commission improperly rejected a landowner’s plan to expand her use of waterfront property, which conformed to the city’s zoning code, on the ground it would interfere with the water-dependent use of adjoining property, where that property’s use violated the city’s zoning regulations, the Connecticut Appeals Court has ruled (Dean v. Zoning Commission of [...]

Seattle-Area County Examines Fire Safety Issues

Thursday, August 17, 2006

The Pierce County, Wash., County Council voted July 25 to keep an emergency ordinance imposing special restrictions on “planned development districts” in effect until January 22, 2007, or earlier if a task force appointed to examine safety, traffic and aesthetic issues comes up with proposals for permanent rules.The council passed the emergency regulation requiring builders [...]

County’s Refusal to Accept Roads Not Inverse Condemnation

Thursday, August 17, 2006

A county’s refusal to accept ownership of roads in a subdivision was not an inverse condemnation entitling the developer to damages, the Georgia Supreme Court ruled, in a 4-3 decision (Rabun County v. Mountain Creek Estates, LLC, No. S06A0042, July 6, 2006).After Mountain Creek finished building the road system in its subdivision, the county refused to accept it, claiming [...]

City Cannot Bar Charter School From Commercial Zone

Thursday, August 17, 2006

The New York Supreme Court Appellate Division (3rd Dept.) has ruled a city ordinance excluding schools from commercial zones is unconstitutional (Albany Preparatory Charter School v. City of Albany, No. 99656, July 6, 2006).Albany Preparatory Charter School owns a building in Albany that for 70 years before its conversion to commercial office space was a public school. Albany

Oklahoma Court Rejects ’Eminent Domain’ Initiative

Thursday, August 17, 2006

Last month, the Oklahoma Supreme Court ruled off the ballot an initiative petition purporting to limit the power of public bodies to take land by eminent domain where the intent is to convey the property to another private owner, because it violated the “single subject rule” (In re: Initiative Petition No. 382, No. O-103021, June 20, 2006).The initiative petition [...]

Briefly Noted

Thursday, August 17, 2006

The Montgomery County, MD., Council reached out to a familiar face to assume the chairmanship of the county planning board, filling a vacancy created by the decision of Derek Berlage not to seek a second four-year term. The council unanimously chose George Washington University professor and well-known planning expert Royce Hanson. Hanson should have no trouble finding his way around

 
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