Land Use Law Report
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Articles for the year 2008

 
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Total Result(s) Found: 85

 

Land Use Law Report, Number 12, December 2008

 

Environment: No Drilling Without ‘Hard Look’ At Environmental Impacts

Tuesday, December 23, 2008

Facts: A group of petitioners challenged an offshore drilling exploration plan submitted by Shell Offshore Inc. (Shell). Minerals Management Service (MMS) approved the plan, which allowed Shell to drill multiple offshore exploratory oil wells in the Alaskan Beaufort Sea over a three-year period. The petitioners alleged that MMS’s action violated the National

Building Permit: Town Must Appeal Building Permit Before Filing Mandamus Petition

Tuesday, December 23, 2008

Facts: The City of Fernley, Nevada (City), decided to construct a water treatment plant on Mesa Drive to comply with an Environmental Protection Agency mandate that the City reduce the amount of arsenic in its drinking water by July 2009. The Mesagate Homeowners’ Association and several Mesa Drive property owners (collectively, Mesagate) opposed the plant because

Condemnation: City Bulldozed Condemned Building During Owner’s Attempt To Repair

Tuesday, December 23, 2008

Facts: Plaintiff Roy Pearson owned two properties in Louisville, Mississippi. An old store sat on one property and a dilapidated house on the other. In 2001, the City of Louisville (City) determined that the house constituted a "menace to the public health and safety of the community" under Mississippi Code Section 21-19-11. After this determination, Pearson removed the [...]

Valuation: Court Properly Relied On Government Data For Valuation

Tuesday, December 23, 2008

Facts: In 2001, the Secretary of Energy (Secretary) directed the Western Area Power Administration (WAPA) to construct the Los Banos-Gates Transmission Project, or Path 15 Upgrade, in the San Joaquin Valley of California. The project would add an 84-mile transmission line in an effort to mitigate California’s electronic power transmission constraints. The Secretary

Preemption: Rail Facilities Not Subject To State Nuisance Law

Tuesday, December 23, 2008

Facts: The plaintiffs in this case live on Sundance Ranch in unincorporated Polk County, Florida. Defendant Winter Haven, Florida (City), annexed an adjacent 318 acre parcel in 2005. Before the annexation, Polk County had used the property as a wastewater treatment plant. After the City purchased the parcel, defendants CSX Real Property Inc. and CSX Transportation Inc

Sign Ordinance: Billboard Ordinance Is Unconstitutionally Vague, Court Declares

Tuesday, December 23, 2008

Facts: Plaintiff International Outdoor, Inc. (International Outdoor) erects billboards on sites that it leases for that purpose. In June 2007, International Outdoor sought building permits for four of its leased sites located within the defendant City of Romulus, Michigan (City). International Outdoor submitted several rounds of applications, but the City rejected [...]

Marketable Title: Expired Variance Nullifies Marketable Title

Tuesday, December 23, 2008

Facts: In 1993, plaintiffs Peter and Anne Scott purchased 10 acres of land in freedom Township, Pennsylvania, from Bradley and Mary Yohes. A private, gravel right-of-way provided the only ingress and egress to the property. This right-of-way was laid out in a subdivision plan that the Yohes proposed in 1993. To meet the township’s subdivision and land development [...]

Right--of--Way: Tree Removal For Safety Is Constitutional

Tuesday, December 23, 2008

Facts: Plaintiff Mark Brown owns a home in the City of Upper Arlington, Ohio (City), and the City owns a right—of—way that abuts Brown’s property. A forty—year—old sweet gum tree grows in that right—of—way and suffers from a canker on its trunk. In 2008, the City notified Brown that the tree was "decayed/dying" and that qualified [...]

 

Land Use Law Report, Number 11, November 2008

 

Ripeness: Proposed Zoning Amendment Is Too Speculative For Challenge

Sunday, November 23, 2008

Facts: Plaintiff Stonehouse Homes LLC (Stonehouse) sued the City of Sierra Madre, California (the City) and the Sierra Madre City Council (the City Council) over a moratorium resolution the City Council adopted in April 2006. Stonehouse owned approximately 103 acres of land in the City and sought to develop 25 acres of that property, some of which lies within

Easement: No Easement By Necessity Where Alternate — Even Inconvenient — Access Is Possible

Sunday, November 23, 2008

Facts: John J. McFarland acquired a 2.75-acre plot of land (the property) within Glacier National Park in Montana. A 1916 federal patent conveyed the property to McFarland’s predecessor in interest under the Homestead Act of 1862. The patent read, "TO HAVE AND TO HOLD the said tract of Land, with the appurtenances thereof, unto the said claimant and to the heirs and

Historic Preservation: Historic Preservation Funds Don’t Apply To Existing Parks

Sunday, November 23, 2008

Facts: The Massachusetts legislature enacted the Massachusetts Community Preservation Act (CPA), G.L. c. 44B, in 2000. It provides a method for municipalities to fund "the acquisition, creation and preservation of open space, the acquisition, creation and preservation of historic resources and the creation and preservation of community housing." G.L. c. 44B § 2. The City of [...]

FERC: Natural Gas Condemnation Authority Extends Past Pipelines

Sunday, November 23, 2008

Facts: Plaintiff Northwest Pipeline G.P. (Northwest) is a natural gas company. In 2004, it applied to the Federal Regulatory Energy Commission (FERC) for approval of a natural gas pipeline capacity replacement project. FERC issued a certificate of public convenience and necessity that authorized Northwest to construct and operate the natural gas facilities that were described [...]

Condemnation Valuation: No Per Se Rule Against Admitting Post-Taking Comps

Sunday, November 23, 2008

Facts: In 2000, defendant Jerry Croskey purchased a 21-acre parcel of land abutting a fish hatchery in Libby, Montana. He later purchased a neighboring 20-acre lot and sold his original 21-acre lot to his real estate agent, Pamela Flowers. In April 2002, Flowers subdivided four one-acre lots and conveyed them to family members. She then submitted plans to subdivide [...]

Preemption: Clean Water Act Does Not Preempt State Common Law Claims

Sunday, November 23, 2008

Facts: Defendant George Phillips owns approximately 220 acres in the town of New Freedom, Pennsylvania. Defendant Synagro Central, LLC began to stockpile and spread sewage sludge on this property. Plaintiff Ralph Gilbert filed suit in state court in July 2008, noting that he and other plaintiffs "noticed offensive odors, typically smelling like a herd of dead [...]

Preemption: Safe Runways Trump Local Regulations

Sunday, November 23, 2008

Facts: Plaintiff Tweed-New Haven Airport Authority (the Authority) manages the Tweed-New Haven Airport (the Airport), which is located in both the Town of East Haven (East Haven) and the City of New Haven, Connecticut. The Airport has one main runway, provides regularly scheduled, passenger air service and is classified by the Federal Aviation Administration

 

Land Use Law Report, Number 10, October 2008

 

Don’t Cherrypick Ordinance Provisions

Thursday, October 23, 2008

 

Land Use Law Report, Number 9, September 2008

 

E. Coli Contamination Has Nothing To Do With Drain-Maintenance Fees, Appellate Court Rules

Tuesday, September 23, 2008

The Swanson-Lamporte Ditch is a Damon Run tributary and a regulated drain in Porter County, IN, which is 8.4 miles long. Although the drain is regulated, most of Damon Run is unregulated. The drain is at least 100 years old and services an area totaling more than 2,800 acres of land. On Sept. 8, 2005, a surveyor filed a report with the Porter County Drainage Board (the Drainage [...]

Why Non-Use Of Access Road Doesn’t Necessarily Extinguish Easement

Tuesday, September 23, 2008

Daniel and Jane Shoemaker (the Shoemakers) purchased three tracts of land in the Meadow Lake Estates (Meadow) residential subdivision in 1984. When developers created the subdivision in 1979, they filed a Deed of Restriction that set forth several land-use limitations, including reserving easements on all existing roads within the subdivision for the subdivision property [...]

Sovereign Immunity Won’t Save A State Government In This Case

Tuesday, September 23, 2008

In April 2000, the State of Texas (the State) filed a Petition for Condemnation to acquire an interest in Charles and Marlene Brownlow’s (the Brownlows) 12.146 acres of land, for the opening, construction and maintenance of a pond that would retain water (detention facility) as part of its Highway 35 widening project. The pond required the displacement of 84,544 cubic [...]

Failure To Obtain Certificate Of Constructive Approval Gives Board A Leg Up In Rescission Case

Tuesday, September 23, 2008

The original owners proposed the land for subdivision in 1999, but the Planning Board of Winchester (the Board) turned down the definitive plan on Aug. 10, 2001, two days after the 90-day review period’s expiration. The original owners then filed a complaint in the Superior Court appealing the Board’s decision and seeking constructive approval. After the original owners [...]

A Fine Line Exists Between Implied Easement By Necessity And By Convenience

Tuesday, September 23, 2008

The Roberts filed a petition for rehearing pursuant to the provisions of Tenn. R. App. P. 39 . Language in the Court of Appeals of Tennessee, At Knoxville’s opinion from Dec. 20, 2007 is inconsistent with its assessment of the trial court record in its 2004 order denying the Roberts’ application for a Tenn. R. App. P. 10 extraordinary appeal, the Roberts argued. That [...]

Preemption State Action Won’t Contest Destruction Of Railroad Crossings

Tuesday, September 23, 2008

Facts: Defendant Union Pacific Railroad Company (Union Pacific) owns and operates a track for freight trains between Shreveport and Alexandria, Louisiana. The track borders two miles of property that belongs to plaintiff Franks Investment Company, LLC (Franks). Until December 2007, four private railroad crossings provided access from Franks’ property to Highway [...]

Attention: This Is Your 2nd-To-Last Print Issue. Your Content-Rich, Online-Only Newsletter Is Coming Soon!

Tuesday, September 23, 2008

Your survey feedback was overwhelmingly positive! With your support, Land Use Law Report is going green. You will receive one more newsletter by regular mail. After that, you can visit our website and print out each month’s newsletter whenever you want — anytime. Or, you can peruse your monthly newsletter — full of the latest land use case [...]

Abstention: Abstention Keeps A Vested Rights Case From Summary Judgment

Tuesday, September 23, 2008

Facts: Plaintiffs MLC Automotive, LLC and Leith of Fayetteville, Inc. (together, Leith) sought to develop an automobile park (the Auto Park) on a parcel of land in the Town of Southern Pines, North Carolina (the Town). Leith entered into a contract to purchase the parcel for $1.55 million in March 2001. Before closing, the Town gave Leith a written determination [...]

Expert Testimony Any Valuation Testimony Must Connect To Market Effects

Tuesday, September 23, 2008

Facts: Defendant Donn Campion owned 3,220 acres of land in California. The United States, on behalf of the Department of Energy and the Western Area Power Administration (collectively, the government), acquired an 88-acre right-of-way easement across Campion’s land by eminent domain. The United States constructed a 500 kV power transmission line [...]

 

Land Use Law Report, Number 8, August 2008

 

Court Holds Dogs Can Be Livestock

Saturday, August 23, 2008

 

Land Use Law Report, Number 7, July 2008

 
 

Land Use Law Report, Number 6, June 2008

 

City Ordinance Stops Travel Plaza

Monday, June 23, 2008

 

Land Use Law Report, Number 5, May 2008

 
 

Land Use Law Report, Number 4, April 2008

 

Court Rejects Per Se Admission Of Previous Valuations In Condemnation Actions

Wednesday, April 23, 2008

Background: Miller Park, LLC and Miller Park II, LLC (Miller Park) bought property near Buckeye, Arizona, with the purpose of developing the land. Miller Park contracted with a developer to sell part of the property in February 2002 for more than $17.4 million. One month later, the Salt River Project Agricultural Improvement and Power District (SRP) announced [...]

Ordinance Improperly Favored Natural Resources Over Cultural Resources

Wednesday, April 23, 2008

Background: The Columbia River Gorge Commission (the Commission) adopts and enforces the management plan for the Columbia River Gorge National Scenic Area, which includes scenic, cultural, recreational and natural resources. It adopted an amendment to its management plan to authorize "a wider range of uses of historic properties than were previously allowed." The

Court Denies Equitable Estoppel Against Government Entity

Wednesday, April 23, 2008

Background: W.H. Sebastian began developing Spindletop Estates, the property at issue, in 1963. The property is located outside of Lexington, Kentucky, in Fayette County. The city and the county have a joint planning and zoning commission called the Lexington-Fayette Urban County Planning Commission (the Commission). In 1963, the Commission approved Mr. Sebastian

Refusal to Negotiate Leads to Condemnation by Eminent Domain

Wednesday, April 23, 2008

Background: In 1924, Marseilles Land and Water Company (the canal company) entered into an agreement with Illinois Power to supply water and maintain a certain canal in Marseille, Illinois, in return for monthly rent. Illinois Power built a power plant, which was eventually decommissioned in 1988 or 1989. Marseille Hydro Power LLC (the power company) succeeded [...]

Court Finds Prescriptive Easement, Not Adverse Possession

Wednesday, April 23, 2008

Background: In 1996, Willard D. and Marina F. Gore bought a vacation property in the mountains of Tennessee from Jon Johnson. They built "a cabin on the spine of a narrow ridge," which was "difficult, if not impossible" to safely access from the county road. Instead, the Gores used a route that crossed land belonging to Tony and Linda Stout. Mr.

Homeowners Close in Porch, Violate Land Use Ordinance

Wednesday, April 23, 2008

Background: Frederick and Donna Trudo applied for a building permit with the Town of Kennebunk-port in 2001. They sought to make some cosmetic changes to their home, but stated that "[n]o structure expansion or foot print change" would occur. The Trudos made many changes and upgrades, including installing "expensive insulated glass windows which replaced screens

Reader Questions: New Jersey Redevelopment Law’s Notice Provisions Violate Due Process

Wednesday, April 23, 2008

Background: Anthony DeRose sued the Harrison Redevelopment Agency, challenging the condemnation of his property in Harrison, New Jersey. Harrison is a small town that used to have substantial industrial residents, including brick and can manufacturers. By the second half of the twentieth century, many of the manufacturers had closed shop, leaving empty factory buildings [...]

 

Land Use Law Report, Number 3, March 2008

 

E. Coli Contamination Has Nothing To Do With Drain-Maintenance Fees, Appellate Court Rules

Sunday, March 23, 2008

The Swanson-Lamporte Ditch is a Damon Run tributary and a regulated drain in Porter County, IN, which is 8.4 miles long. Although the drain is regulated, most of Damon Run is unregulated. The drain is at least 100 years old and services an area totaling more than 2,800 acres of land. On Sept. 8, 2005, a surveyor filed a report with the Porter County Drainage Board (the Drainage [...]

Why Non-Use Of Access Road Doesn’t Necessarily Extinguish Easement

Sunday, March 23, 2008

Daniel and Jane Shoemaker (the Shoemakers) purchased three tracts of land in the Meadow Lake Estates (Meadow) residential subdivision in 1984. When developers created the subdivision in 1979, they filed a Deed of Restriction that set forth several land-use limitations, including reserving easements on all existing roads within the subdivision for the subdivision [...]

Sovereign Immunity Won’t Save A State Government In This Case

Sunday, March 23, 2008

In April 2000, the State of Texas (the State) filed a Petition for Condemnation to acquire an interest in Charles and Marlene Brownlow’s (the Brownlows) 12.146 acres of land, for the opening, construction and maintenance of a pond that would retain water (detention facility) as part of its Highway 35 widening project. The pond required the displacement of 84,544 [...]

Failure To Obtain Certificate Of Constructive Approval Gives Board A Leg Up In Rescission Case

Sunday, March 23, 2008

The original owners proposed the land for subdivision in 1999, but the Planning Board of Winchester (the Board) turned down the definitive plan on Aug. 10, 2001, two days after the 90-day review period’s expiration. The original owners then filed a complaint in the Superior Court appealing the Board’s decision and seeking constructive approval. After the original

A Fine Line Exists Between Implied Easement By Necessity And By Convenience

Sunday, March 23, 2008

The Roberts filed a petition for rehearing pursuant to the provisions of Tenn. R. App. P. 39. Language in the Court of Appeals of Tennessee, At Knoxville’s opinion from Dec. 20, 2007 is inconsistent with its assessment of the trial court record in its 2004 order denying the Roberts’ application for a Tenn. R. App. P. 10 extraordinary appeal, the Roberts

 

Land Use Law Report, Number 2, February 2008

 

5th Amendment Gives Lessors Compensable Interest In Real Property

Saturday, February 23, 2008

George R. Isely, as Trustee of the Mildred L. Isely, et al. (Isely) brought an inverse condemnation action against the City of Wichita (the City) regarding land he owned and leased to Starr Holdings, LLC (Starr). Starr had signed a "Public Street And Utility Easement," which "purports to grant the City a permanent right-of-way and easement for the purpose of construction and maintenance

Court Supports No-Blood-Sacrifice Ordinance, Despite Religious Implications

Saturday, February 23, 2008

ba Omo Orisha Texas Inc., filed claims against the City of Euless (the City), alleging that city ordinances effectively prohibit within corporate city limits the type of blood sacrifice that he views as an essential part of the Santeria religion. The ordinances in question prohibit slaughtering, wound-trapping, maiming and crippling animals. The only exception is for domesticated fowl "considered [...]

Land-Use Regulation Waivers Get Even More Complicated In Oregon

Saturday, February 23, 2008

Clara Frank, individually and as Trustee of the Clara Frank Living Trust, owns a 225-acre parcel located in rural Marion County, OR, which is outside the urban-growth boundary of any city and is zoned for exclusive farm use. Frank wants to subdivide the property into smaller lots for residential uses; the current zoning inhibits the property’s development into home sites. [...]

Appellate Court Overturns Injunctive-Relief Ruling Because Lower Court Lacked Personal Jurisdiction

Saturday, February 23, 2008

The Blakeneys are members of Issaquena and Warren Counties Land Co., LLC (IWCLC), an organization that purchased land for hunting and fishing uses, according to the brief. Paw Paw Island Land Company (Paw Paw) sued IWCLC seeking a prescriptive easement over the road, because Paw Paw’s members used the road to access their boat launch to Paw Paw Island. "The County became involved [...]

Court Deems Old Deeds Too Vague To Assign Ownership Of Entire Lake To One Party

Saturday, February 23, 2008

Ariel Land Owners, Inc. (ALO) is comprised of a group of homeowners in a lake community. ALO sued Lori Dring and Nancy Asaro (the defendants) to quiet the title to Lake Ariel (the Lake). ALO claims to own the Lake through: a series of deeds; a determination by the Court of Common Pleas of Wayne County as to a boundary fronting on the Lake; community reputation evidence as to the Lake

No Spot Assessment Means Board Was In The Right

Saturday, February 23, 2008

Robert B. and Victoria Sher (the Shers) own property in Berks County, PA, which includes 13.03 acres with a two-story dwelling and two garages. They enrolled their property in the preferential assessment program, or the Clean and Green Program (the Program), in 1997, listing 10 acres for tillable agricultural use, two acres as forest and one acre as a reserved home site. The state [...]

Dedication Of Property For A Public Park Can Last A Lifetime …quot; Even If The Current Owners Don’t Know About It

Saturday, February 23, 2008

The Township of Middletown (the Township) sold tax sale certificates on a lot that was a designated park on a subdivision map; no taxes were ever paid on it. The certificate holders, Richard Simon, Trustee, and Jeffrey Berman, foreclosed on the lot, obtained title it and contracted to sell it to Lamberto Builders, LLC (Lamberto) for construction of a residence. Jerman and Simon bought [...]

 

Land Use Law Report, Number 1, January 2008

 

A Superior Court Cannot Decide A Site-Specific Rezone’s Compliance In This Situation

Wednesday, January 23, 2008

Evergreen Meadows, LLC, Stuart Ridge, LLC, Steele Vista, LLC, and Cle Elum’s Sapphire Skies, LLC, (collectively, CESS) own 251.63 acres of land in Kittitas County, WA, originally zoned forest and range (F&R). F&R zoning gives priority to natural-resource management and generally allows minimum lot sizes of 20 acres. An F&R zone permits uses such as single-family homes [...]

Default-Permit Entitlement Is A Tough Row To Hoe

Wednesday, January 23, 2008

On Sept. 5, 2003, Golden Gaming Resorts, LLP (Golden) filed an initial application for a major coastal zone permit with the Department of Planning and Natural Resources (DPNR). Golden wanted to build a resort, casino and convention center on certain parcels of land in Estates Hartmann and Great Pond on St. Croix in the Virgin Islands. Golden also submitted an Environmental Assessment [...]

County Cannot Violate Law’s Uniformity Requirement When Granting Conditional Use Permits

Wednesday, January 23, 2008

The Neighbors in Support of Appropriate Land Use (Neighbors) filed a petition for a writ of mandate, challenging the County of Tuolumne’s (the County) grant of a conditional use permit that allowed two property owners to use their property for a commercial business. The property owners, Ronald and Lynda Peterson, wanted to operate a business hosting weddings and other events [...]

Different Versions Of A Site Plan May Not Give A Group Opportunity To Claim Due-Process Rights Violations

Wednesday, January 23, 2008

Wildwood Development, LLC (Wildwood) filed a permit application with the Valley County Planning & Zoning Commission (the Commission) seeking approval of an 88-unit residential planned unit development (PUD) on its 30 acres of land, which are adjacent Lake Cascade. Wildwood’s development would include 11 single-family detached residential lots, 65 single-family attached townhouses [...]

Court Allows Defendants To Add Expert Exhibits To Their Final Trial Exhibit List

Wednesday, January 23, 2008

Illusions-Dallas Private Club, Inc. and Silver City operate private membership clubs that serve alcoholic beverages and provide erotic dance performances, and Hotel Development Texas Ltd. and Green Start are management companies that provide food and alcohol to Illusions and Silver City (collectively, the plaintiffs). The plaintiffs challenged the constitutionality of the Texas Alcoholic [...]

 
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