Land Use Law Report
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Articles for the year 2007

 
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Total Result(s) Found: 99

 

Land Use Law Report, Number 12, December 2007

 

9th Circuit: 5th Amendment Does Not Necessarily Preempt Due Process Claims

Sunday, December 23, 2007

Crown Point, the developer of a 9.76-acre residential subdivision in Sun Valley, ID, proposed to the local zoning commission the construction of 13 additional townhouse units. Although the commission approved the project, the local homeowners’ association appealed the proposal to the City Council (Council). When the Council denied the application, Crown Point sought judicial

Oregon Resort Proposal Fails To Pass Procedural, Substantive Safeguards

Sunday, December 23, 2007

Thornburgh Resort Company (Thornburgh) applied to Deschutes County, OR, for approval of a conceptual master plan (CMP) for a destination resort. The proposed resort would contain approximately 1,400 dwelling units, a hotel, three golf courses, two clubhouses, shops and other amenities. Local laws required the CMP application to include a description of the site’s wildlife resources

Zoning Board Cannot Order Road Paving Beyond Ordinance’s Reach

Sunday, December 23, 2007

The engineer’s comments were incorporated into reports submitted to the Weisenberg Township Board of Supervisors (Board). In March 2006, the Board approved the Plan subject to certain conditions, including compliance with the engineer’s memorandum. But the Board also added other conditions based on its reading of the ordinance. Most significantly, the Board required Stauffer

Indianapolis Pastor May Have RLUIPA Claim Against City’s Zoning Decisions

Sunday, December 23, 2007

Toby Digrugilliers (Digrugilliers), pastor of the Baptist Church of the West Side, led a small congregation in a leased building located in a part of Indianapolis zoned “C-1.”The City of Indianapolis Zoning Code (Code) forbade religious uses in C-1 districts absent a zoning variance. The Code noted that C-1 districts were commercial districts intended as buffers between

Challenges To Land Management Plan Must Address Actual Violations To Be Ripe

Sunday, December 23, 2007

Congress passed the Columbia River Gorge National Scenic Act (the Act) in 1986. The Act created the Columbia River Gorge National Scenic Area, which stretches for more than 80 miles along the Columbia River and encompasses nearly 30,000 acres in Oregon and Washington. To accomplish its goal of preserving this area’s natural resources, the Act established a framework within which

Special Pleading Rules Apply To Land Use Appeals In Federal Court

Sunday, December 23, 2007

In June 2005, Reimer Estates (Reimer) approached Mac Butler, then zoning administrator for Shelby County, IL (the County), with a plan to construct storage facilities, houses and condominiums. Butler advised Reimer that the land should be zoned for residential use. Reimer had the zone changed accordingly and obtained a $550,000 loan from Prairie National Bank to fund the development

Director’s Non-Public Letter Does Not Constitute Project Approval

Sunday, December 23, 2007

A.G. Spanos Construction Co., Inc. (Spanos) and Wal-Mart Stores, Inc. (Wal-Mart) appealed to the Court of Appeal of California, Third Appellate District, contesting a district court judgment granting a peremptory writ of mandate that set aside the approvals for a 207,000-square-foot Wal-Mart store. Spanos and Wal-Mart planned to build the retail store in a mixed-use (M-X) zone

 

Land Use Law Report, Number 11, November 2007

 

Express Language Did Not Support County’s Ordinance Interpretation, Court Ruled

Thursday, November 22, 2007

The Land Development Ordinance (LDO) for Jackson County, OR, set forth a three-step approval process for destination resort developments. Each stage called for a different type of plan: first, a conceptual site plan (CSP); second, a preliminary development plan (PDP); and lastly, a final development plan (FDP). The procedure had specific deadlines for each stage. Notably, the LDO established

Zoning Board’s Arbitrary Rejection Prompts Finding Of Substantial Burden To Religion

Thursday, November 22, 2007

The Westchester Day School (WDS), located in the village of Mamaroneck, NY, provides students with a dual curriculum in Judaic and general studies. In 1998, WDS decided its facilities were inadequate to satisfy the school’s needs. As a result, the school sought to renovate two existing structures and to construct a new building to serve the existing student population. The school planned

Discriminatory Treatment May Create Substantial Burden Under RLUIPA

Thursday, November 22, 2007

At the outset, the court recognized that the parties bitterly disputed the facts. These disputes centered on material issues such as whether reasonable alternative sites existed, for what purpose the parcel was deemed “environmentally sensitive,” and whether the condemnation actually was a burden on the exercise of religion by the mosque’s members. As a result, the court refused

Local Sign Ordinance Prohibited Dealership’s Spotlight ‘Signs’

Thursday, November 22, 2007

Sutliff Enterprises, Inc. (Sutliff) operated numerous car dealerships throughout the Commonwealth of Pennsylvania, including two within Silver Springs Township. In a letter dated July 10, 2006, Sutliff requested that a zoning officer issue a written determination as to “whether the use of portable searchlights” at these dealerships “would or would not be permissible under the [...]

How Complainants Can Get Past A Time Limit On Objections To Conditional Use Permits

Thursday, November 22, 2007

On April 26, 2000, Buffalo Valley Ltd. and McVille Mining Company filed applications for conditional land-use permits to conduct coal-mining operations on its 230-acre tract of land located in South Buffalo Township, PA. On June 12, 2000, the Township’s Board of Supervisors (the Supervisors) granted the requested permits, and the companies commenced mining activities in December 2000.

Beware Of Arbitration Clauses Not In The Deed, But In The Purchase And Sale Agreement

Thursday, November 22, 2007

After receiving the Bollmans’ draft Petition for Arbitration, Nestle filed a declaratory judgment action. Nestle said that the Bollmans’ allegations contradicted the broad grant of rights in the Deed, which Nestle attached to its complaint. Nestle asked for an injunction preventing the Bollmans from interfering with Nestle’s rights to continue withdrawing water. Nestle&rsquo

A City Will Have To Answer To The Courts If It Impedes Development After Already Approving The Permits

Thursday, November 22, 2007

In 2005, the City began annexation proceedings on the property and passed interim development controls, it passed a resolution opposing “the development of a Wal-Mart, or other ‘big box’ department stores within the municipal corporate limits or the extraterritorial jurisdiction” of the City. The resolution also said that the City could take lawful actions to prevent

 

Land Use Law Report, Number 10, October 2007

 

NJ Court Upholds Highlands Act When Developer’s Timing Is Off

Thursday, October 18, 2007

OFP, L.L.C. v. New Jersey, DOCKET NO. A-3190-05T1, 2007 N.J. Super. LEXIS 289 (Aug. 10, 2007).A developer unsuccessfully challenged the constitutionality of New Jersey’s Highlands Water Protection and Planning Act (the Act), N.J.S.A. 13:20-1 to -35. The developer’s claim was not ripe for adjudication, the Superior Court of New Jersey’s Appellate Division held

TN Telephone Utility Must Relocate Facilities At Its Own Cost Absent Pre-Arranged Reimbursement

Thursday, October 18, 2007

Metro. Gov’t. of Nashville and Davidson Cty. v. BellSouth Telecomms., Inc., Case No. 3:06cv0321, 2007 U.S. Dist. LEXIS 51454 (July 13, 2007).A district court has provided further clarification regarding Tennessee’s telecommunications statute, including in which cases a utilities company can and cannot expect reimbursement for having to move its equipment. [...]

No Timber Salvage After Burn In Reserve Area, Court Ruled

Thursday, October 18, 2007

Oregon Natural Res. Council Fund v. Brong, No. 05-35063, No. 05-35092, 2007 U.S. App. LEXIS 17530 (July 24, 2007)An environmental group successfully blocked a plan to harvest timber from an environmentally protected area in Oregon.The Oregon Natural Resources Council and other parties (collectively, ONRC) challenged the Timbered Rock Fire Salvage and Elk Creek Watershed

Facts Determine Timeliness Of Fraudulent-Representation Actions

Thursday, October 18, 2007

Budonov v. Kutsev, Case No. A129154, 2007 Ore. App. LEXIS 1068 (Aug. 1, 2007)Oregon courts must apply a “totality of the circumstances” test when evaluating whether a property purchaser is on notice to inquire about the accuracy of a seller’s representations regarding that property.Plaintiffs Lazar and Sandra Bodunov bought a farm in Marion County,

Facts Determine Timeliness Of Fraudulent-Representation Actions

Thursday, October 18, 2007

Budonov v. Kutsev, Case No. A129154, 2007 Ore. App. LEXIS 1068 (Aug. 1, 2007)Oregon courts must apply a “totality of the circumstances” test when evaluating whether a property purchaser is on notice to inquire about the accuracy of a seller’s representations regarding that property.Plaintiffs Lazar and Sandra Bodunov bought a farm in Marion County,

‘One Lot One Building’ Rule Does Not Violate Telecommunications Act

Thursday, October 18, 2007

Powertel/Atlanta, Inc. v. City of Clarkston, Civil Action No. 1:05-CV-3068-RWS, 2007 U.S. Dist. LEXIS 56638 (Aug. 3, 2007)A city did not violate the Telecommunications Act by permitting only one principal building or structure on each lot.“Only one principal building or structure or use and its customary accessory buildings and uses shall be permitted on any [...]

Why A Court Won’t Allow Drilling In South Shale Ridge

Thursday, October 18, 2007

The Wilderness Soc’y v. Wisely, Civil Action No. 06-cv-00296-MSK-MEH, 2007 U.S. Dist. LEXIS 57168 (Aug. 6, 2007)A federal court enjoined the Bureau of Land Management (BLM) from leasing certain land for drilling because the BLM violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).Several environmental groups (collectively,

Don’t Ask About Off-Site Traffic Congestion In Connecticut

Thursday, October 18, 2007

Pansy Road, LLC v. Town Plan and Zoning Comm. of Fairfield, SC 17713, 283 Conn. 369; 2007 Conn. LEXIS 300 (July 31, 2007)Local plan and zoning commissions may not consider off-site traffic congestion when evaluating a development proposal; commissions must limit consideration of traffic congestion to internal traffic circulation on the proposed site. Plaintiff Pansy Road, [...]

 

Land Use Law Report, Number 9, September 2007

 

While Local Governments May Adopt Standards For Planned Developments, Such Developments Must Retain A Single Entity’s Characteristics

Tuesday, September 18, 2007

The State of New Jersey adopted an experimental act in Burlington County (the Burlington Act), which allowed for municipalities to create developmental sending and receiving zones. Through this act, municipalities could send development from land that they wished to remain undeveloped to receiving zones that were amenable to development. The program was a success, and New Jersey subsequently

Board’s Decision Entitled To A Validity Presumption - No Unreasonably Adverse Impact Found

Tuesday, September 18, 2007

Millville 1350, LLC (the developer) owned a large parcel of property, which was environmentally sensitive and home to six endangered or threatened animal species. The developer wished to build 950 detached age-restricted homes and a golf course on a portion of its land, while maintaining a large proportion of its land as undeveloped open space with a permanent restrictive deed as a conservation

NEPA Won’t Punish Agencies For Technical Oversights

Tuesday, September 18, 2007

Conservation groups can’t rely on hypothetical problems or technical errors to halt governmental policies in the name of the Endangered Species Act (ESA) or the National Environmental Protection Act (NEPA), the U.S. District Court for the Western District of Washington said. Trout Union (TU) and other conservation and fishery organizations whose members use the watersheds in Washington, Oregon [...]

In A Supplemental Environmental Impact Statement, A No-Action Alternative May Be The Same As The Proposed Action

Tuesday, September 18, 2007

The Miccosukee Tribe (the tribe) and various environmental groups challenged a series of decisions that the U.S. Army Corps of Engineers (the Corps) made in its administration of programs to balance South Florida’s water-related needs without jeopardizing an endangered sparrow species. The programs took place in South Florida and involved land that affected land reserved to the [...]

A Tax Law Amendment Resulting In Higher Tax Assessment Is Not A Violation Of Due Process

Tuesday, September 18, 2007

The program accepted the property in 1997 and assigned it a preferential assessment value of $160,000. In 1998, the Pennsylvania legislature amended the law governing the program and rendered “farmstead land” eligible for preferential tax assessment. Due to this change, the Shers’ property was assessed at $113,700 beginning in 1999. Following a second amendment in 2004, the

Developer Has No Protectable Property Rights In Permits Even If Approved; County Retains Discretionary Authority

Tuesday, September 18, 2007

Koloa Marketplace, LLC (KM) sought to develop a shopping center and office space on land in Koloa Town on the island of Kauai. To that end, KM attempted to obtain permits from the County of Kauai (Kauai), the Kauai County Planning Department (the Planning Department), the Kauai County Planning Director (the Director) and the Kauai County Planning Commission (the Commission), (collectively,

A City Could Not Override A State-Authorized Board, State Supreme Court Ruled

Tuesday, September 18, 2007

In 2007, the City Council of Philadelphia (the Council) enacted an ordinance to present a ballot question to the City’s voters, asking whether it should amend the City charter to prevent the Council and the City’s Department of Licenses and Inspections from permitting the use of gaming in certain areas of the City. The Board filed an action to enjoin the submission of the ballot

 

Land Use Law Report, Number 8, August 2007

 

NJ Court Reinforces Blight Rules For Eminent Domain Cases

Saturday, August 18, 2007

Paulsboro also adopted a new master plan to redevelop seven broadly defined areas of the Borough in an effort to stimulate economic rehabilitation. Paulsboro did not include the Gallenthin property in its initial plan. But in 2002, Paulsboro conducted a site-development study on areas adjacent to the Gallenthin land. The study suggested that the Gallenthin property be included in [...]

Land Use Regulations Can’t Stand In The Way Of Wireless Service

Saturday, August 18, 2007

In 2003, San Diego County passed a Wireless Telecommunications Facilities zoning ordinance (WTO) to create a four-tier system for granting wireless facility permits. The WTO forces wireless providers to obtain a conditional use permit before they can build a wireless facility. The WTO also requires that wireless providers submit complete plans for the site and conduct an appropriate [...]

Tense Political Rivalry Isn’t Enough To Prove A Political Discrimination Claim

Saturday, August 18, 2007

In 2000, father-son real estate development team Benjamin Carrero-Nazario and Benjamin Carrero-Martinez negotiated with the Puerto Rico Industrial Development Company to purchase a parcel of land in Rincon, PR that Carrero-Nazario wanted to develop into a shopping center and large grocery store. Just after the mayoral election, the Puerto Rico Planning Board approved the project and [...]

Prove Ordinance’s Constitutionality With Relevant Secondary-Effects Studies

Saturday, August 18, 2007

The residents and several board members then considered multiple options to limit the proliferation of adult businesses in the county. In response to residents’ concerns, the Board passed the Dickinson County Kansas Sexually Oriented Business Ordinance No. 07084 (First Ordinance). This ordinance cited several cases and studies that pointed to the variety of negative secondary

Landowners Can’t Use Equal Protection Laws To Force A Zoning Board’s OK

Saturday, August 18, 2007

Barbara Cordi-Allen and her husband John purchased a waterfront lot in the Cape Cod town of Truro, MA (the Town). The Allens wanted to transform the parcel from a 400-square-foot cottage and short pier into a 1,512-square-foot dwelling with an attached 1,750-square-foot garage. This would include expanding the existing cottage into a 640-square-foot residence, installing a large swimming

 

Land Use Law Report, Number 7, July 2007

 

Existing Land-Use Policies And Agency Attitudes May Trump CEQA Limitations

Wednesday, July 18, 2007

Muzzy Ranch Company v. Solano County Airport Land Use Commission, S131484, Ct. App. 1/5 A104955, 2007 Cal. LEXIS 6508 (June 21, 2007)A land use commission must consider how its policies will affect future growth and development — unless an existing regulation does that job for them, the California Supreme Court ruled.Solano County, CA established the Solano

Land Commitments By Any Other Name — Even ‘Covenants’ — Are Still Only Commitments

Wednesday, July 18, 2007

Beineke v. Chemical Waste Management of Indiana, LLC, No. 02A04-0611-CV-665, 2007 Ind. App. LEXIS 1263 (June 15, 2007)Homeowners shouldn’t rely on their zoning body’s terminology to enforce what they think are covenants attached to their land, according to the Court of Appeals of Indiana. In 1975, Chemical Waste Management of Indiana, LLC (Chemical Waste

Substantive Due-Process Claims Must Pass Shocks-The-Conscience Test

Wednesday, July 18, 2007

Mongeau v. City of Marlborough and Stephen Reid, No. 06-2666, 2007 U.S. App. LEXIS 14812 (June 22, 2007)Plaintiffs in land-use disputes can win a substantive due-process claim only if they can prove defendants acted in a way that truly “shocks the conscience,” the U.S. Court of Appeals for the First Circuit upheld.Landowner Eugene Mongeau sold three parcels

Municipalities Can Use Annexation To Battle Urban Sprawl

Wednesday, July 18, 2007

In re: City of Brookhaven, NO. 2004-AN-01641-SCT, 2007 Miss. LEXIS 345 (June 14, 2007)The introduction of municipal taxes and ordinances are a small price to pay for annexation when the absorbing city already provides a bevy of municipal goods and services and could offer even more after annexation.Brookhaven, the uncontested economic and social engine of Lincoln

Cities Can Enforce Each Other’s Ordinances, Court Says

Wednesday, July 18, 2007

A to Z, Inc., et al. v. City of Cleveland, et al., Case No. 1:05CV2137, 2007 U.S. Dist. LEXIS 43666 (June 14, 2007)A city can apply its ordinances outside of the city’s limits to keep unsavory operators from opening a business — if all affected cities are on board with the plan.A to Z, Inc., Cappas & Karas Investment, Inc. and Xtreme DVD leased a

 

Land Use Law Report, Number 6, June 2007

 

Oregon Court Permits Action Against Forest Service’s Timber Sale

Monday, June 18, 2007

Klamath Siskiyou Wildlands Center v. U.S. Forest Service, Civil No. 06-1604-CL, 2007 U.S. Dist. Lexis 39720 (D. Or., May 24, 2007)The U.S. District Court for the District of Oregon held that environmental groups may go forward with their legal challenge of timber sale in an Oregon National Forest. In an opinion that focused mainly on procedural issues, the court allowed

Zoning Law Changes Apply Retrospectively in Maryland

Monday, June 18, 2007

Layton v. Howard County Bd. of Appeals, No. 116, September Term, 2006, 2007 Md. Lexis 262 (Md. Ct. App., May 9, 2007)The Court of Appeals of Maryland reaffirmed the rule that when a change in statutory law occurs during ongoing litigation of a land use or zoning issue, the appellate courts will retrospectively apply the new law to the issue before them — to enlarge [...]

School for Troubled Youth Survives Motions to Dismiss

Monday, June 18, 2007

Cornell Companies, Inc. v. Borough of New Morgan, Civil Action No. 06-4113, 2007 U.S. Dist. Lexis 39646 (E.D. Pa., May 31, 2007)The U.S. District Court for the Eastern District of Pennsylvania ruled that Cornell Companies, Inc. (Cornell) stated claims upon which it could grant relief in Cornell’s quest to re-open its secure-care facility for juvenile offenders, The

Ohio Court Holds that Proposed Landfill Site Is in Protected Watershed

Monday, June 18, 2007

Norton Construction Co. v. U.S. Army Corps of Engineers, Case No. 1:033-cv-02257, 2007 U.S. Dist. Lexis 35105 (N.D.Oh., May 14, 2007)The U.S. District Court for the Northern District of Ohio denied the construction of a landfill in Tuscarawas County, OH (the County).Norton Construction Company (Norton) applied for a permit under Section 404(a) of the Clean Water Act

Compliance With Pennsylvania Airport-Zoning Act is Mandatory

Monday, June 18, 2007

The Pennsylvania legislature enacted the AZA in 1984. It states that “to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce . . . airport zoning regulations for such airport zoning area” (74 Pa.C.S. § 5912(a)).  These zoning regulations may divide [...]

Meadowlands Has Affordable-Housing Obligation

Monday, June 18, 2007

In re the Adoption of N.J.A.C. 19:3, 19:4, 19:5 and 19:6, Docket No. A-4174-03T3, A-3107-04T1, 2007 N.J. Super. Lexis 153 (N.J. Super. App. Div., May 21, 2007)The New Jersey Superior Court’s Appellate Division held that the New Jersey Meadowlands Commission (the Commission) has a constitutional obligation under the Mount Laurel doctrine to establish affordable [...]

Expanding Mine Could Affect Black River; Washington Court Denies Permit

Monday, June 18, 2007

Quality Rock Products, Inc. v. Thurston County, No. 34128-0-II, 2007 Wash. App. Lexis 1330 (May 30, 2007)The Court of Appeals of Washington did not permit the expansion of a gravel mine because the potential impact of that expansion on the Black River had not been determined.Quality Rock Products, Inc. and Eucon Corporation (together, Quality Rock) own a 151-acre

 

Land Use Law Report, Number 5, May 2007

 

No Significant Impact Finding Nor Environmental Impact Statement Constituted A Clear Error of Judgment

Friday, May 18, 2007

Natural Resources Defense Council, Inc. v. Department of Energy, No. C-04-04448 SC, 2007 U.S. Dist. Lexis 32374 (N.D. Cal., May 2, 2007)The Northern District of California granted a motion for summary judgment against the Department of Energy (DOE), declaring that DOE was engaged in a continuing violation of the National Environmental Policy Act (NEPA) and permanently enjoining [...]

QTA Applies Only to Title Disputes — Not Changes in Status of Land — Says Court

Friday, May 18, 2007

Citizens Against Casino Gambling in Erie County v. Kempthorne, No. 056-CV-0001S, 2007 U.S. Dist. Lexis 29561 (Apr. 20, 2007)The government may not allege sovereign immunity under the Quiet Title Act (QTA) in suits involving no title change to restricted Indian lands — because such suits do not implicate the Quiet Title Act at all. In January of 2007, Defendants [...]

Federal Court Certifies Zoning Question to State Court

Friday, May 18, 2007

O’Mara v. Town of Wappinger, No. 06-0078-cv, 2007 U.S. App. Lexis 8608 (2nd Cir., Apr. 16, 2007)The United States Court of Appeals for the Second Circuit certified a case to the New York Court of Appeals for determination of when a zoning regulation imposed through a subdivision plat is enforceable against a subsequent purchaser.In 1962, developers purchased property [...]

Court Says State Agency Officer Was Subject to NEPA Suit

Friday, May 18, 2007

South Carolina Wildlife Federation v. South Carolina Department of Transportation, No. 2:06-CV-02528-DCN, 2007 U.S. Dist. Lexis 3021 (SC, Apr. 16, 2007)The South Carolina Department of Transportation (SCDOT) — but not its Executive Director — was immune from a suit alleging that a federally funded project violated that National Environmental Policy Act (NEPA [...]

Court Says More Stringent Rule May Not Be Most Specific

Friday, May 18, 2007

Kendor Steel Rule Die v. Fraser, No. 273998, 2007 Mich. App. Lexis 1185 (Apr. 26, 2007)An industrial company must comply with a stringent nuisance ordinance even if more specific noise regulations in another chapter applied directly to businesses in the industrial restricted district (IRD), said a Michigan court.  In 2002, residents’ complaints led the City [...]

Tenth Circuit Dismisses Fair Housing Act Claim Because No Disparate Impact Shown

Friday, May 18, 2007

Discriminatory Impact Claims Require Showing of Significant Disparate EffectThe FHA makes it unlawful “to refuse to sell or rent . . ., or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, national origin,” or handicap.  42 U.S.C. § 3604(a), (f)(1) (2007). Discrimination may occur by disparate

City Must Grant Variance in Absence of A Written Decision

Friday, May 18, 2007

T-Mobile Central, LLC v. City of Grand Rapids, Case No. 1:06-CV-747, 2007 U.S. Dist. Lexis 32199 (W.D. Mich., May 2, 2007)A magistrate judge for the United States District Court for the Western District of Michigan granted a wireless company’s motion for summary judgment and ordered that a local zoning Board issue a variance allowing the company to build a wireless tower [...]

In Absence of Final Decision or Pursuit of Inverse Condemnation Claim, Plaintiff’s Takings Clause And Substantive Due Process Claims Were Not Ripe

Friday, May 18, 2007

Brubaker v. E. Hempfield Twp., Case No. 06-2531, 2007 U.S. App. Lexis 9918 (3d Cir., April 27, 2007)The Third Circuit held that takings and due process claims were not ripe due to the lack of finality and failure to exhaust state remedies.Donald A. Brubaker (Brubaker) owned land in East Hempfield Township (the Township), on which he desired to build a 250-foot communication [...]

Court Upholds Sewer Line Permit Over Neighbor’s Appeal

Friday, May 18, 2007

Gerlt v. South Windsor Inland Wetlands Agency, No. X03CV034022231S, 2007 Conn. Super. Lexis 991 (Apr.13, 2007)Despite a neighboring landowner’s contrary assertions, substantial evidence supported a town commission’s decision to grant a sanitary sewer line permit. The Town of South Windsor (the Town) submitted, and the South Windsor Inland Wetlands Agency/Conservation [...]

Takings Claims Must First Be Filed in State Court

Friday, May 18, 2007

ISP Envtl. Servs., Inc. v. The City of Linden, Civil No.  05-4249 (GEB), 2007 U.S. Dist. Lexis 32614 (D. N.J., May 3, 2007)The United States District Court for the District of New Jersey held that a plaintiff who sets forth an unlawful taking claim must file in state court and avail himself of state court remedies before filing in federal court. ISP Environmental Services [...]

 

Land Use Law Report, Number 4, April 2007

 

Divided Panel Holds No Right to Jury Trial Where Parties Stipulated to Date of Taking Earlier Than The Government’s Declaration Resulted in Inverse Condemnation

Wednesday, April 18, 2007

United States v. 191.07 Acres of Land, No. 04-35131, 2007 U.S. App. Lexis 7684 (9th Cir., Apr. 4, 2007)The Ninth Circuit held that by stipulating that a taking had occurred prior to the government’s declaration of taking, the parties effectively established that the taking was through inverse, rather than direct, condemnation; the appellant therefore had no right to a [...]

City Employee’s Bad Acts Key to Plaintiff’s Equal Protection Victory

Wednesday, April 18, 2007

Eternal Investments, L.L.C. v. The City of Lee’s Summit, Missouri, No. 05-0521-CV-W-FJG, 2007 U.S. Dist. Lexis 14422 (W.D. Mo., Mar. 1, 2007)Eternal Investments (Plaintiff) applied to the City of Lee’s Summit (Defendant) to rezone approximately 30 acres of land from agricultural to single-family residential.Defendant’s professional planning staff prepared [...]

Chain Does not Constitute a Development Plan “Construction”

Wednesday, April 18, 2007

Charlie Norfolk Center Associates v. Norfolk Redevelopment and Housing Authority, Civil Action No. 2:06cv616, 2007 US. Dist. Lexis 21369 (E.D. Va., Mar. 26, 2007)A development group that proposed the addition of a parking lot chain on a parcel of real property failed to meet the requirements of  a development proposal for “construction” pursuant to the option [...]

Telecommunications Act Preempts San Diego Ordinance

Wednesday, April 18, 2007

Sprint Telephony PCS v. County of San Diego, Nos. 05-56076, 05-56435, 2007 U.S. App. LEXIS 5753 (9th Cir., Mar. 13, 2007)A telecommunications company, following San Diego’s application of zoning regulations against the business, sought to enjoin the county from enforcing the ordinance. The U.S. Court of Appeals for the Ninth Circuit found that federal law preempted the [...]

Court Characterizes LRMPs as “Road Maps,” Not Agency Actions

Wednesday, April 18, 2007

Forest Guardians v. Forsgren, No. 05-2181, 2007 U.S. App. Lexis 3956 (10th Cir., Feb. 23, 2007)The U.S. Court of Appeals for the Tenth Circuit has declined to characterize Land and Resource Management Plans (LRMPs) that allegedly threatened the existence of the Canadian lynx as “actions” requiring consultation under the Endangered Species Act (ESA), instead calling [...]

Court Abstains Only from Issuing Injunctive Relief in Takings Case

Wednesday, April 18, 2007

Hemlock Crossing v. Logan Township, Civil Action No. 3:07-26, 2007 U.S. Dist. Lexis 26055 (W.D.Pa., Apr. 9, 2007)A federal court declared itself authorized to issue damages in a takings case involving accusations of racial and socioeconomic discrimination, but decided that it lacked authority to grant an injunction under the Younger theory of abstention. Ohio corporation [...]

Corps’ Issuance of Shopping Center Permit Fully Complied with NEPA

Wednesday, April 18, 2007

D’Olive Bay Restoration and Preservation Committee v. U.S. Army Corps of Engineers, Civil Action No. 05-0561-BH-D, 2007 U.S. Dist. Lexis 18886 (S.D. Ala., Mar. 15, 2007)Against objections by D’Olive Bay Restoration and Preservation Committee (D’Olive), a district court ruled that a permit to fill wetlands and a streambed for purposes of a shopping center&rsquo [...]

Court Upholds Town’s Delay in Approving Subdivision Plan

Wednesday, April 18, 2007

Scott T. Young v. Township of Coolbaugh, No. 3:05cv802, 2007 U.S. Dist. Lexis 23520 (M.D. Pa., Mar. 30, 2007)A Pennsylvania township’s protracted decision to approve a subdivision plan did not infringe a developer’s rights, despite the fact that the delay led to the demolition of the houses planned for development. The plaintiff brought several civil rights claims against [...]

 

Land Use Law Report, Number 3, March 2007

 

Eighth Circuit Confirms That State Remedy Exhaustion Is Prerequisite To Taking Claim In Federal Court

Sunday, March 18, 2007

Cormack v. Settle-Beshears, No. 06-2069, 2007 U.S. App. Lexis 1398 (8th Cir., Jan. 8, 2007) The Court of Appeals for the Eighth Circuit upheld the dismissal of a § 1983 claim alleging that property owner J. Michael Cormack’s (Cormack) constitutional rights were violated when the City of Van Buren, Arkansas (Van Buren) annexed his land and applied a city ordinance [...]

Not All Condemnation Steps Require Due Process, Says New York Court

Sunday, March 18, 2007

Peter Ciszewski and Marla Merante v. State of New York, No. 05-CV-0167, 2007 U.S. Dist. Lexis 2087 (N.D.N.Y., Jan. 10, 2007) A New York district court awarded summary judgment to the state in a due process challenge brought by landowners over a condemnation proceeding. The challengers claimed that the state of New York acquired their property through an unconstitutional [...]

Pastor Needed Variance to Practice Religion in Commercial Zone

Sunday, March 18, 2007

Toby Digrugilliers v. Consolidated City of Indianapolis, 1:06-cv-952-SEB-JMS, 2007 U.S. Dist. Lexis 11485 (S.D. Ind., Feb. 15, 2007)  An Indianapolis pastor sought to enjoin the enforcement of a zoning ordinance’s requirement that he obtain a variance in order to conduct religious ceremonies on his property. Instead, the U.S. District Court for the Southern District [...]

Required Stormwater Pipe Upgrade Not a Taking, Says Court

Sunday, March 18, 2007

Tapps Brewing Inc. v. City of Sumner, No. C06-5006RBL, 2007 U.S. Dist. Lexis 11657 (W.D. Wash., Feb. 16, 2007)A city’s stormwater pipe requirement caused two landowners to protest the obligation as an unconstitutional taking. The U.S. District Court for the Western District of Washington instead awarded summary judgment to the city. It found no such taking and noted that [...]

Federal Land Exchange Runs

Sunday, March 18, 2007

Greer Coalition, Inc. v. U.S. Forest Service., No. CV 06-0368-PHX-MHM, 2007 U.S. Dist. LEXIS 15283 (D. Ariz., Feb. 28, 2007) The U.S. District Court for the District of Arizona ruled that an exchange of federal land with non-federal land ran afoul of certain procedural requirements imposed by the National Environmental Policy Act (NEPA).Real Property Trade [...]

Zoning Case Dismissed: Plaintiffs Failed to Exhaust State Law Remedies

Sunday, March 18, 2007

Fox Auto Group, Inc. v. Town of Erwin, 06-CV-6094T, 2007 U.S. Dist. Lexis 15703 (W.D.N.Y., Mar. 6, 2007) The Town of Erwin (the Town) amended its zoning laws to prohibit the use of “pole signs,” requiring Fox Auto Group (Fox) to remove its signs within three years. Fox first applied for a variance after the time for removal had passed. Upon denial of its

Condemnee Must Choose Between Withdrawing Deposit and Challenging the Right to Take

Sunday, March 18, 2007

Mt. San Jacinto Community College District v. The Superior Court of Riverside County, S132251, 2007 Cal. Lexis 1696 (Ca., Feb. 22, 2007)Mt. San Jacinto Community College District (Plaintiff) condemned and took possession of approximately 30 acres of land owned by Azusa Pacific University (Defendant). Plaintiff deposited the value of “probable compensation,” what [...]

City Ordinance Limiting Posting of Political Signage Violates Constitution

Sunday, March 18, 2007

Maguire v. City of American Canyon, No. C-06-5681 JCS, 2007 U.S. Dist. Lexis 14748  (N.D. Cal., Mar. 1, 2007) The U.S. District Court for the Northern District of California held that a city ordinance limiting the posting of political campaign signs was unconstitutional. On August 17, 2006, the City of American Canyon (the City) adopted an ordinance regulating political [...]

Zoning Ordinance Regulating Off-Site Adult Entertainment Was Narrowly Tailored

Sunday, March 18, 2007

H & A Land Corp. v. City of Kennedale, No. 05-11474, Consolidated with 06-10304, 2007 U.S. App. Lexis 3941 (5th Cir. Feb. 22, 2007) The Fifth Circuit reversed the decision of the U.S. District Court of the Northern District of Texas, holding that an ordinance regulating the operation of sexually oriented was narrowly tailored to further a substantial government interest [...]

 

Land Use Law Report, Number 2, February 2007

 

California Court Reads Statute Literally to Determine Eminent Domain Expenses

Sunday, February 18, 2007

The Temple City Redevelopment Agency (City) filed two eminent domain complaints, one to obtain property owned by Bayside Drive Limited Partnership (Bayside), the other to acquire the property belonging to Pi Yun Hou Wang (Wang). The complaints named Bayside a defendant because Bayside owned an easement on Wang’s property. While the action was pending, Bayside sold its property [...]

City Lacked Authority to Condemn Land for Suburban Park

Sunday, February 18, 2007

In 2000, Sherry Harnish (Harnish) purchased a five acre parcel of property (the Property) outside the Phoenix city limits. The following year, the Phoenix City Council adopted an ordinance authorizing the acquisition of land — including the Property — for a nature preserve (the Preserve). In 2003 — after unsuccessfully negotiating to purchase the Property — the [...]

New Hampshire Bypass Project Passes NEPA Muster

Sunday, February 18, 2007

In November 2000, the City of Concord (City) notified the Corps of the project and requested a fill permit under Section 404 of the Clean Water Act (CWA). By January 2006, the Corps had completed an environmental assessment (EA) of the proposed project to determine whether an environmental impact statement (EIS) was necessary. The EA stated that the purpose of the project was &ldquo [...]

Natural Gas Act Preempts County’s LNG Site Restrictions

Sunday, February 18, 2007

In accordance with the Natural Gas Act (NGA), AES and Mid-Atlantic (Plaintiffs) initiated the pre-filing process necessary to file a formal application with the Federal Energy Regulatory Commission (FERC) to build an LNG terminal. Public opposition to Plaintiffs’ plans prompted the Baltimore County Council to pass an amendment (Amendment) that required a “special exception [...]

Court Allows NEPA Segregation of Multi-Phase Project

Sunday, February 18, 2007

The U.S. Court of Appeals for the Fifth Circuit overturned a district court decision over the question of whether a multi-phase project was improperly segmented to avoid an in-depth environmental study as required under the National Environmental Policy Act of 1969 (NEPA). The appellate court disagreed with the U.S. District Court for the Eastern District of Louisiana’s conclusion [...]

Court Invalidates Woman’s Eleventh Hour Attempt to Intervene

Sunday, February 18, 2007

Over the course of several hearings in mid-2006, neighboring landowner Margaret Smith (Smith) voiced opposition to an application for a wireless tower land use permit. The Lake Township Planning Commission denied the permit, and applicants New Par and Skyway Towers, LLC (Plaintiffs) challenged the denial. A case management order entered in mid-November indicated several critical deadlines [...]

Government’s Fiduciary Obligations in Leasing Tribal Land Includes Responsibility for Breach

Sunday, February 18, 2007

The U.S. Court of Federal Claims has decided Rosebud VI , the latest in a series of complex cases that began in 1998 concerning the lease of certain tribal lands for use as a commercial hog farm. In this latest installment, the court rejected the United States’ motion to dismiss and held that the Rosebud Sioux Tribe’s (Tribe) claims for fiduciary breach [...]

Eighth Circuit Finds Rejection of Approval Resolution Not Subject to Same Procedures As Denial

Sunday, February 18, 2007

The U.S. Court of Appeals for the Eighth Circuit reversed a district court decision finding that an application for special use approval to construct a 195-foot telecommunications tower was approved by operation of law. In so reversing, the Eighth Circuit held that a 60-day statutory deadline requiring a written statement of reasons for denial of a petition only applied where the [...]

FERC Order Restricts Application of State-Granted Eminent Domain Power

Sunday, February 18, 2007

In 2003, the Federal Energy Regulatory Commission (FERC) issued Order No. 2003 (the Order), a rule that amended 1996’s Order No. 888 and required all transmission facilities to adopt standard procedures and a standard agreement for the interconnection of generators larger than 20 megawatts. Petitioners — comprised of four utilities and six regulatory agencies — challenged [...]

RICO Charges Deemed Too Little, Too Late

Sunday, February 18, 2007

Limestone Development Corporation (LDC), an Illinois business, brought charges against a host of municipal officials for violating the Racketeer Influenced and Corrupt Organizations Act (RICO) by engaging in a series of actions that diminished the fair market value of its property. LDC also claimed Village of Lemont (Village) officials violated the company’s equal protection [...]

City Failed To Prove Outdoor Storage Unlawful Prior To Zoning Amendment

Sunday, February 18, 2007

In an unpublished decision, the Minnesota Court of Appeals upheld a challenge of a hearing officer’s determination that a property’s outdoor storage, in existence since the 1950s, was unlawful without a conditional use permit (CUP). Although the city revised the ordinance to make the permit mandatory, the city failed to show that the storage was unlawful prior to this [...]

Agency Errs In Deeming Rectangular Lots “Irregular”

Sunday, February 18, 2007

In a case the California Attorney General (AG) called a “poster child” for redevelopment abuse, the Court of Appeal of California reversed the Superior Court of Kern County’s decision regarding the condemnation of vacant desert land. The AG filed an amicus curiae brief on behalf of affected landowners, asserting the City of California City Redevelopment Agency (Agency [...]

 

Land Use Law Report, Number 1, January 2007

 

No Easement Granted to Owner Landlocked by National Park

Thursday, January 18, 2007

McFarland v. Kempthorne, CV 00-20-M-DWM, 2006 U.S. Dist. Lexis 86111 (Mont., November 17, 2006)A district court determined that no easement by necessity existed for the owner of property completely surrounded by Glacier National Park. Prohibition of year-round motorized access was a necessary environmental and recreational policy, said the court, and the landowner could ski [...]

Federal Claims Court Dismisses Regulatory Takings Case

Thursday, January 18, 2007

Benchmark Resources Corporation, et al. v. United States, No. 03-1781, 2006 U.S. Claims Lexis 351 (Nov. 22, 2006)The United States Court of Federal Claims dismissed a case in which several mining corporations sought compensation for an alleged regulatory taking. Although the court stated it did not have subject matter jurisdiction, it emphasized that the case otherwise survived [...]

Article X of New York’s Public Service Law Governs Location of Electric Plants

Thursday, January 18, 2007

City of New York v. TransGas Energy Servs., No. 2005-08292, 2006 N.Y. App. Div. Lexis 13346 (2nd Dep’t, Nov. 8, 2006)A New York appellate division court has held that a party who applied for permission to construct and operate a major electric generating facility pursuant to Article X of New York’s Public Service Law (Article X) cannot simultaneously commence a condemnation [...]

Town’s Zoning Scheme Can’t Provide a Needed Classification Then Fail to Apply It

Thursday, January 18, 2007

Anspaugh v. Imlay Township, No. 262492, 2006 Mich. App. Lexis 3556 (Dec. 5, 2006)A Michigan appellate court has held that a zoning ordinance which has the effect of totally prohibiting lawful heavy industrial land use despite a demonstrated need for that land use is exclusionary.Earl Anspaugh and Trinity of Michigan, LLC (Trinity) applied to have various parcels of land [...]

Railroad Right-of-Way Abandonment Requires Complete Divestiture of Property Interests

Thursday, January 18, 2007

In Re Condemnation by the County of Lancaster, No. 2510 C.D. 2005, 2006 Pa. Commw. Lexis 557 (Oct. 30, 2006)The Commonwealth Court of Pennsylvania affirmed a trial court’s determination that the County of Lancaster (County) could not take a railroad’s land under eminent domain. The County had appealed the trial court’s decision over the question of whether

North Carolina Court Upholds Developer’s Conditional Use Permit

Thursday, January 18, 2007

Ronald M. Heafner, et al. v. City of Gastonia and Site Control Development Services, No. 06 CVS 788, 2006 NCBC Lexis 20 (Nov. 14, 2006)A North Carolina superior court affirmed the City of Gastonia’s (City) decision to annex property, zone it as a conditional use district, and issue a conditional use permit to a residential development company. Residents of Gastonia County [...]

Rezoning for Educational Use Not Actual Rezoning, Says Mississippi Court

Thursday, January 18, 2007

W. McDonald Nichols, et al., v. Madison County Board of Supervisor and Canton Public School District, No. 2005-CA-01479-COA, 2006 Miss. App. Lexis 846 (Nov. 14, 2006)A school board requested, over the landowners’ objection, rezoning agricultural land for the purpose of constructing a new school. The Mississippi Court of Appeals found that a zoning board’s action [...]

Mobile Home Cannot Be Classified As Non-Conforming Based On Subsequent Regulatory Change

Thursday, January 18, 2007

Miami-Dade County v. Redland Estates, Inc., No. 3D05-627, 2006 Fla. App. Lexis 20778 (Dec. 13, 2006)A Florida court of appeals has declined to issue a second-tier writ of certiorari to review the quashing of an order denying permission to rebuild a mobile home park (Property) destroyed by Hurricane Andrew.Following Hurricane Andrew Miami-Dade County established an Amnesty [...]

Watershed Permit Survives CWA and NEPA Challenges

Thursday, January 18, 2007

Sierra Club v. United States Army Corps of Engineers, No. 3:05-cv-362-J-32TEM, No. 3:05-cv-459-J-32TEM, 2006 U.S. Dist. Lexis 85132 (M.D.Fla., November 19, 2006)A U.S. district court has upheld an unprecedented regional general permit (RGP) that authorized the dredge and fill of wetlands within a 48,150 acre parcel in Florida’s panhandle. Against objections by the Sierra [...]

Court Grants Request to Re-Color Land Use Map

Thursday, January 18, 2007

Buck v. City of Cedar Key, No. 1:05cv169-SPM, 2006 U.S. Dist. Lexis 87656 (N.D.Fla., December 4, 2006)The City of Cedar Key, Florida must grant a request to amend the erroneous designation of property as a conservation area in spite of commission members’ opinion that the land should be conserved.In 2005, landowners Ross and Dawn Buck petitioned for a development [...]

Younger Requires Stay of Federal Civil Rights Proceedings Related To Pending Zoning Appeal

Thursday, January 18, 2007

Koynok v. Lloyd, No. 06cv1200, 2006 U.S. Dist. Lexis 87544 (W. Dist. Penn., Dec. 4, 2006)A federal district court has found that the doctrine embodied in Younger v. Harris, 401 U.S. 37 (1971)  requires that it abstain from deciding a case seeking legal and equitable remedies for alleged civil rights violations. The state proceeding arose from George Koynok&rsquo [...]

Zoning Ordinances Aim to Eliminate Nonconforming Use of Land ASAP

Thursday, January 18, 2007

Purich v. Draper Properties, Inc., No. 9 Sept. Term 2006, 2006 Md. Lexis 821 (Dec. 7, 2006)In deciding whether a nonconforming use continued to apply when land was being used under a special exception to a zoning ordinance, the Court of Appeals of Maryland strictly construed the Montgomery County Zoning Ordinance (MCZO) when it held the land’s nonconforming use terminated [...]

Adjacent Landowners Possess Right to be Heard in Strip Mining Adjudication

Thursday, January 18, 2007

Calvert v. County of Yuba, No. C047857, 2006 Cal. App. Lexis 1918 (Dec. 5, 2006)The Court of Appeal of California, Third Appellate District, conducted a mini-lesson on how to properly apply procedural due process to land use matters when it generally affirmed a trial court’s decision granting landowners the right to be notified and heard before a government agency could [...]

Motive Has No Impact on Legislative Immunity Determination

Thursday, January 18, 2007

Two Tenn., LLC v. City of North Little Rock, No. 3:06CV00063 JLH, 2006 U.S. Dist. Lexis 87377 (E.D. Ark., November 29, 2006)Absolute legislative immunity protected North Little Rock City Council members (Council Members) from a lawsuit despite allegations that “bad motives” prompted council members’ actions.  In 2005, the North Little Rock City [...]

 
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