Land Use Law Report
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Articles for the year 2010

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Total Result(s) Found: 46


Land Use Law Report, Number 7, July 2010


Billboards: Billboard Ban Is Not Unlawful Commercial Speech Restriction

Monday, July 19, 2010

The City of Los Angeles regulates signs, including billboards, in its Municipal Code. The Freeway Facing Sign Ban prohibits billboards located within 2,000 feet of and "viewed primarily from" a freeway or an on-ramp/off-ramp. LAMC § 14.4.6(A). The stated purpose of this ban is to promote public safety and welfare by "provid[ing] reasonable protection to the [...]

Fair Housing: Condo Ban Is Not Per Se Discrimination

Monday, July 19, 2010

(White Oak) owns a 60-acre property in Washington Township, Ohio. That tract is surrounded by a larger property that includes a golf course. White Oak bought both properties from a single previous owner who had negotiated agreement that allowed him to build 94 residences on the 60-acre property. The property was zoned Residential "R," which limited its use to single-family

Takings: Supreme Court Lets Florida Move Ocean Away From Private Property

Monday, July 19, 2010

A group of landowners who owned oceanfront property in Florida banded together to sue the State of Florida for taking their property without just compensation. This group, Stop the Beach Renourishment, Inc. (Stop the Beach), brought an administrative challenge to a proposed project under Florida′s Beach and Shore Preservation Act, which establishes procedures for beach [...]

Rights-of-Way: Unclear Easement Width Clogs Up City′s Access To Oregon Water

Monday, July 19, 2010

A city and the federal government dispute the width of several rights-of-way. In 1862 and 1868, Oregon granted certain water rights to Baker City, Oregon. These water rights include springs and creeks to the north and west of Baker City as well as the right to store water in Goodrich Reservoir. Baker City owns rights-of-way across federal and private land. These rights-of-way [...]

Zoning: Capping The Square Footage Of Commercial Development Requires A Zoning Amendment

Monday, July 19, 2010

In 1991, the Township of Liberty, Ohio approved the Wedgewood Commerce Center (Commerce Center), a planned unit development (PUD). The Commerce Center included many subdivisions with different kinds of approved land use, such as single-family dwellings, schools and commercial developments. These subdivision zoning restrictions are only recorded in the PUD′s approved plat [...]

Special Use Permit: Windmill Permit Is Not A Taking, Nuisance Or Trespass

Monday, July 19, 2010

In 2003, Ogle County, Illinois amended its zoning ordinance to allow special use permits for windmills used to generate power. In 2005, Baileyville Wind Farms, LLC (Baileyville), applied for and received a special use permit to build 40 windmills on its property. Patricia Muscarello owns the property next door and vigorously opposed the installation of the windmills [...]

Public Services Assessment Unnecessary When Landowner Provides The Services

Monday, July 19, 2010

The City of Boardman, Oregon, applied to partition a parcel of its land so that it could sell one of the resulting parcels to a developer. The developer planned to build a travel center on the 49-acre property. Devin Oil Co., Inc. (Devin) owns a nearby business that would compete with the proposed travel center. Devin opposed the partition, and after Morrow County granted [...]


Land Use Law Report, Number 6, June 2010


Preemption: Federal Flood Insurance Law Preempts State Challenges To FEMA Methods

Wednesday, June 23, 2010

Facts: The Federal Emergency Management Agency (FEMA) hired Dewberry & Davis, LLC (Dewberry) to provide a hydraulic model of land along the Congaree River in South Carolina. FEMA used the model to reassess its flood elevation maps. Relying on Dewberry’s model, FEMA designated a large part of property owned by Columbia Venture, LLC (Columbia Venture [...]

Environmental: Federal Agency Can Consider State Environmental Studies Rather Than Conduct Its Own

Wednesday, June 23, 2010

Facts: The U.S. Bureau of Reclamation operates the Columbia Basin Project (the Project) in central Washington, which diverts 2.65 million acre-feet of water from the Columbia River each year for irrigation. The Project includes the Grand Coulee Dam, behind which is Lake Roosevelt. The Bureau of Reclamation completed the first phase of the Project some years ago and began planning [...]

Easement: Landowner Could Not Clarify Airport Easement Restrictions In Federal Court

Wednesday, June 23, 2010

Facts: Patricia Fuqua owns 53.01 acres of land beneath a new flight path into the Fort Campbell Airport in Christian County, Kentucky. In 2007, the federal government condemned an easement across some of the property. According to the declaration of taking, the government took a “perpetual and assignable easement” for “the operation of aircraft to and from


Land Use Law Report, Number 5, May 2010


Taking: It May Be Bad Public Policy, But That Doesn’t Make It An Improper Taking

Sunday, May 23, 2010

No impermissible taking occurred when Puerto Rico first passed a law that transferred property to a private entity and later repealed that law, returning the property to  public ownership. Any taking that transfers land from private ownership to public ownership so that it can be administered for the public good is considered a legitimate “public use” under the Takings

Subdivision Ordinance: Open Meeting Law Means Public At Least Gets To Listen In

Sunday, May 23, 2010

Facts: John Noble and Cedar Ridge Homes, Inc. (Cedar Ridge) own 152 acres in Kootenai County, Idaho. In 2006, Cedar Ridge applied to build a subdivision that contained 20 five- to ten-acre lots and included a 70-acre no-build area, “the meadow,” which is a wetland subject to frequent flooding. In 2007, the Kootenai County Board of Commissioners (the [...]

Right of Way: Close Contract Reading Reveals That Utility Always Pays To Move Facilities To Accommodate New Railroad Tracks

Sunday, May 23, 2010

Facts: In 1990, MCI Communications Services, Inc. , now doing business as Verizon Business Services (MCI) entered into a right-of-way agreement with Burlington Northern Railway (Burlington). That agreement conveyed to MCI a limited easement to use Burlington’s rail corridor for MCI’s fiber optic communication system. The rail corridor ran between Beaverton and Wilsonville [...]

Mineral Rights: Different Ownership Of Surface And Mineral Rights Complicates Appropriate Use

Sunday, May 23, 2010

Facts: In 1905, the Union Pacific Railroad Company (Union Pacific) severed the surface rights from the mineral rights for a parcel of real property in Weld County, Colorado. Currently, Greeley-Rothe LLC, Hertzke Holsteins, Ltd., Rick D. Hertzke and Kathleen G. Hertzke (together, Greeley-Rothe) own the surface rights to the property. Noble Energy Production [...]

Zoning: Homeowners Prove Township Retaliated After Court Reversed Zoning Board Decision

Sunday, May 23, 2010

Facts: In 1998, George and Margaret Paeth bought “an old, abandoned cottage” in Worth Township , Michigan, which they intended to renovate. For instance, the Paeths planned to enclose an existing porch in the northwest corner of the cottage. However, that part of the house did not meet the five-foot setback requirement. A property survey confirmed [...]

Vested Rights: Builder Can’t Complete Sign When Sign Permit Was A Mistake

Sunday, May 23, 2010

Facts: In 1994, Halla Nursery, Inc. (Halla) built a retail sales building without first obtaining a building permit from the City of Chanhassen , Minnesota. The City inspected the building and found that it didn’t comply with the building code. The City tried to enjoin Halla from running a business in the building. To resolve the dispute, the parties entered [...]

Zoning: No Federal Due Process Claim When Govt. Accepted Payment For, But Didn’t Issue, License

Sunday, May 23, 2010

The two sides entered into a consent order that provided, among other things, that the Township would use its “best efforts” to make water and sewage services available for the mobile home park’s exclusive use. However, the water and sewage services were contingent on the Township granting final land development approval to Perano’s proposed expansion, which [...]


Land Use Law Report, Number 4, April 2010


Takings: Federal Inverse Condemnation Claims Against Rhode Island Are Moot

Friday, April 23, 2010

If you allege inverse condemnation in Rhode Island, you must sue in state court before suing in federal court. Facts: In 1992, the Rhode Island Coastal Resources Management Council (CRMC) issued to Downing/Salt Pond Partners, L.P. (Downing) a land use permit to develop 79 single family houses in Narragansett, Rhode Island. By August 2007, Downing had built [...]

Environmental: Generic Injury Is Not Enough To Cry ’NEPA Violation’

Friday, April 23, 2010

Facts: Western Radio Services Company and its president, Richard Oberdorfer (together, Western Radio), claimed that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) by allowing the Bonneville Power Administration (Bonneville) to construct a telecommunications [...]

Commerce: State’s Debris-Burning Statutes Don’t Violate The Dormant Commerce Clause

Friday, April 23, 2010

Construction Materials Recycling Association and Education Fund and New England Recycling, Inc. (together, the plaintiffs) sued Thomas Burack, Commissioner of the New Hampshire Department of Environmental Services, and Michael Delaney, New Hampshire Attorney General (together [...]

Historic Preservation: Court Dissolves Federal Bank’s Contract To Sell Historic Building

Friday, April 23, 2010

Facts: The Federal Reserve Bank of San Francisco (FRB) owns a branch building on Second Avenue in downtown Seattle that is eligible for inclusion in the National Register of Historic Places. FRB planned to relocate its operations to Renton, Washington and vacate the Seattle building. An environmental impact statement (EIS) associated with Seattle’s Monorail project [...]

Zoning: Govt. Employee Interferences Egregious Enough To Shock Federal Judge

Friday, April 23, 2010

Facts: Dimitri Zaimes owned a property in Lackawaxen Township, Pennsylvania that contained a one-story building with a restaurant, deli and sporting goods store on the ground floor and living quarters in the basement. In June 2006, a fire destroyed the building and a flood damaged the foundation. In September 2006, Zaimes applied for a conditional use permit [...]

Environmental: Nationwide Permit Allowing Discharge Into Ditches Survives Facial Challenge

Friday, April 23, 2010

Facts: In 2007, the Corps issued a nationwide permit that "purports to authorize the discharge of dredged or fill materials into upland ditches" and governs "non-tidal ditches that: (1) are constructed in uplands; (2) receive water from another water of the United States; (3) divert water to another water of the United States; and (4) are determined to be a water of [...]

Insurance: Insufficient Property Description Costs Sewer District $731,835

Friday, April 23, 2010

Facts: Milwaukee County, Wisconsin owned a 19-acre property along Lincoln Creek (the Parcel). The District needed to acquire that property as part of its flood control and wastewater treatment plan. Milwaukee County asked only $1.00 for the property. The District knew that the Parcel was polluted because earlier soil borings showed foundry sand, slag and waste ash, [...]


Land Use Law Report, Number 3, March 2010


Zoning: No Discriminatory Zoning Claim If Property Not Actually Rezoned

Tuesday, March 23, 2010

Facts: John G. Reget has long owned a body shop and automobile-restoration company in La Crosse, Wisconsin. As part of his business, Reget stored cars outdoors. La Crosse’s “junk dealer” ordinance required that he enclose his premises with a “proper fence” to shield from neighbors’ view two or more vehicles [...]

Use Permit: Cell Tower Permit Denied To Prevent Blight On Farm Landscape

Tuesday, March 23, 2010

Facts: Cincinnati Bell Wireless, LLC (Bell) applied to the Dearborn County, Indiana Board of Zoning Appeals (the Board) for a conditional use permit. Bell wanted to fill in a wireless coverage gap by building a new cell phone tower and negotiated to lease land owned by Dan and Merry Helcher. The Helchers’ property, as well as the land surrounding it, was zoned agricultural [...]

Easement: Easements Are Forever —Don’t Try To Change One Alone

Tuesday, March 23, 2010

Facts: In 1996, Marlboro Crossings (Marlboro) and Regal Cinemas Inc. (Regal) owned two adjoining parcels of land in New Jersey. They executed a contract that “run s with the land,” binding the landowners’ successors. In that contract, they agreed to develop the two parcels as a “unified shopping center,” containing a strip mall and movie theater [...]

Eminent Domain: Too Little Too Late For Nonresponsive Landowner

Tuesday, March 23, 2010

Facts: In April 2009, Jordan Hydroelectric Limited Partnership (Jordan) initiated a condemnation suit to take an easement across property owned by Paul and Barbara McCoy . Despite proper service, the McCoys did not respond. Jordan moved for default, and the McCoys again did not respond. Default was entered against the McCoys in July 2009. In October 2009, Jordan [...]

Environment: Once State Energy Authority Terminated Marina Project, NEPA Suit Was Moot

Tuesday, March 23, 2010

Facts: In 2000, the Tennessee Valley Authority (the TVA) leased 31 acres of land to the Tishomingo County Development Foundation (Foundation) so that the Foundation could build a convention center hotel, marina, cabins and boat slips. To comply with the National Environmental Policy Act of 1969 (NEPA), the TVA had to examine the potential environmental impact of [...]

Use Permit: Compost Facility May Lose Use Permit Following Bribery

Tuesday, March 23, 2010

Facts: Systematic Recycling, LLC (Systematic Recycling) operated a composting facility in an industrial area of Detroit. In 2006, when Systematic Recycling began its operations, the City of Detroit’s (the City) zoning ordinance did not cover composting facilities; instead, the county’s solid waste ordinance applied and required a composting facility to enter [...]

Zoning: Developer’s Voluntary Conservation Efforts Prevented Unfavorable Upzoning

Tuesday, March 23, 2010

Facts: Robert I. Toussie and Laura Toussie, Ltd. (Toussie) owned 15.1 acres in the Town of East Hampton, New York (the Town). The Toussie property adjoins another undeveloped parcel of real property known as the Briar property. In 2005, the Town Board of the Town of East Hampton (the Board) enacted Local Law 16-2005, which upzoned both the Toussie property and [...]


Land Use Law Report, Number 2, February 2010


Federal Railroad Law Fails To Stop State Railroad Crossing Claim In Its Tracks

Tuesday, February 23, 2010

Facts: Franks Investment Company (Franks) owns property in Louisiana that it leases to farmers. A Union Pacific Railroad Co. (Union Pacific) line borders about two miles of Franks’s property, separating the property from Louisiana Highway 1 by 100 feet. Union Pacific uses this line for freight service. For at least seventy [...]

Zoning: Town Loses 1st Amendment Argument After Using Its Zoning Powers To Silence A Critic

Tuesday, February 23, 2010

A Michigan town failed to defend itself against a ยง 1983 retaliation suit filed by an outspoken townsperson who frequently criticized town planners at public meetings. Facts: In 2005, Sue Fritz bought a house in Comstock, Michigan contingent upon approval for a home office so that she could work as an independent agent [...]

Historic Preservation: National Or State Historic Status Sufficient To Trigger Local Preservation Ordinance

Tuesday, February 23, 2010

The City objected to the demolition plan because the building was on both the National Register and State Register of Historic Places. According to the City, Gustafson had to allow the City’s Historic Preservation  Committee (HPC) to review his plan before deciding to issue or deny his request. Gustafson claimed that it did not need a [...]

Historic Preservation - Environment: Federal Court Can Dismantle State Transportation Department Project

Tuesday, February 23, 2010

Facts: The federal government undertook a project to widen Highway 26 in Oregon between the villages of Wildwood and Wemme. In response, a group of local citizens, including Carol Logan , the Cascade Geographic Society and the Mount Hood Sacred Lands Preservation Alliance sued the [...]

Environment: Continuing APA Violation Requires A Discrete Action Not Taken

Tuesday, February 23, 2010

Environmental groups lacked standing to sue the Forest Service for failing to file a recreation area map because the Forest Service had lost the original map and, thus, redress was impossible. Facts: In 1975, Congress passed the Hells Canyon National Recreation Act (HCNR Act) to preserve a portion of Oregon wilderness for future [...]

Zoning: Policy To Indefinitely Withhold Permits Does Not Shock Conscience

Tuesday, February 23, 2010

Facts: Rockledge Development Co. (Rockledge) owns and developed the Deerfield Acres Subdivision in Wright Township, Pennsylvania . The Township approved Rockledge’s Final Plan for the subdivision, which included proposed roads and their associated storm water drainage structures. However, Wright Township will withhold [...]

Condemnation: In Private Condemnation, Court Can Consider Negative Impact On Neighbors

Tuesday, February 23, 2010

Facts: In 2006, Wilderness Ridge, LLC bought 75 acres in Dubuque County, Iowa for hunting and recre ation. Wilderness Ridge knew that the property was landlocked and that the previous owner had failed to secure access through a private condemnation action. After buying the property, Wilderness Ridge instituted its own private [...]


Land Use Law Report, Number 1, January 2010


Environmental: Clean Water Act Civil Penalties Intended To Deter Future Violations

Saturday, January 23, 2010

Facts: The Lexington-Fayette Urban County Government (Lexington) in Kentucky operates a sanitary sewer system and a separate storm sewer system. The United States and the Commonwealth of Kentucky brought a Clean Water Act civil enforcement claim against Lexington, alleging that Lexington had violated the Clean Water Act by improperly maintaining the two [...]

Easement: No Partial Discharge Of Easement For Landowner

Saturday, January 23, 2010

Facts: In 1966, the State of Minnesota Department of Transportation (DOT) acquired by condemnation a land easement across “parcel 11” in Douglas County. Minnesota acquired the easement for “highway purposes” and built trunk highway 29 across this easement. In addition to the highway itself, the Minnesota DOT used parcel 11 for drainage from the highway and [...]

Environmental: California County Didn’t Need Environmental Assessment To Close Airport

Saturday, January 23, 2010

When a California agency rejects a private entity’s application to renew a conditional use permit, the agency does not have to first conduct an environmental review. Facts: In 1971, Daniel Lang bought the Sunset Sky Ranch Airport in Sacramento County, California . The local zoning ordinance required a private airport operator to obtain a conditional use permit

Utility: Dam Owner Can Close Dam If It Damn Well Pleases

Saturday, January 23, 2010

Facts: Duke Energy Carolinas, LLC (Duke) owns and operates seven hydroelectric projects in North Carolina’s Nantahala and Tuckasegee River Basins. In 2004, Duke applied to the Federal Energy Regulatory Commission (FERC) to surrender its operating license for the Dillsboro Project, a dam and powerhouse located on the Tuckasegee River. Duke proposed to surrender this license [...]

Zoning: Don’t Rely On Development Restrictions —They Could Change Without Your Consent

Saturday, January 23, 2010

Facts: In 1999, Kentucky’s Louisville Metro Planning Commission (Planning Commission) approved development of the Springdale Development Project (Springdale Development), a large-scale project with commercial, office, hotel and residential uses across multiple lots. US Worldmeds, LLC (Worldmeds), contracted to buy Lot 6, on which it asked the Commission&

Zoning: Misunderstanding Zoning Rules Doesn’t Make An Equal Protection Case

Saturday, January 23, 2010

Facts: The zoning code in Clark County, Washington prohibited any property owner from dividing any lot zoned R-5 into lots smaller than five acres in size. There was an exception to that rule, however. Individual lots could be smaller than five acres if the average lot size throughout the subdivision was at least five acres. Plaintiffs

Valuation: Courts Frown On Creative Valuation Techniques

Wednesday, June 23, 2010

Facts: Bill C. and Betty L. Maher, trustees of the Maher Family Trust of 1988 (the Trust) owned a 306.76-acre parcel in Solano County, California. The parcel was located next to Travis Air Force Base and was zoned A-160 Exclusive Agriculture, which requires 160 acres per home lot size. The Trust used the property for agriculture and cattle

Use Permit: City Blocks Nonconforming Use With Zoning Ordinance, Violates Religious Use Act

Saturday, January 23, 2010

Facts: In July 2005, the World Outreach Conference Center (World Outreach) bought a building from the YMCA in Chicago’s south side. The YMCA had used the building as a community center, and the building included recreational facilities, space for religious services and 168 apartments that the YMCA had rented as single [...]

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