Land Use Law Report
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Articles for the year 2011

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Total Result(s) Found: 48


Land Use Law Report, Number 12, December 2011


Environmental: 'Wilderness' Must Offer 'Opportunities For Solitude'

Tuesday, December 20, 2011

Facts: In 1967, the U.S. Forest Service inventoried large roadless areas within the National Forest System in search of areas with "the most merit for specific study as possible additions" to the National Wilderness Preservation System (established by the 1964 Wilderness Act to preserve wilderness areas within the United States). In 1977, concerned that the [...]

Telecommunications: RF Emissions Not A Valid Basis To Deny Cell Tower Application

Tuesday, December 20, 2011

Facts: In 2008, Cellco Partnership d/b/a Verizon Wireless (Verizon) began a zoning review with the Town of Colonie, New York to gain approval to build and operate a wireless communication facility. Verizon had already selected a site on the property of the Loudonville Presbyterian Church, which was located in a single-family residential zone. Verizon planned to [...]

Telecommunications: Proof Of Significant Gap In Wireless Coverage Must Be Reliable

Tuesday, December 20, 2011

Facts: The Falls Township Zoning Hearing Board (Hearing Board) denied a use variance application by Liberty Towers, LLC (Liberty), which sought to build a telecommunications facility on land zoned for residential use. Liberty wanted to build the facility, which would include a 150-foot-tall cell tower, for four wireless carriers: Clearwire, MetroPCS, Sprint and [...]

Eminent Domain: Lender's Withdrawal Of Funds Doesn't Waive Owner's Right To Challenge Taking

Tuesday, December 20, 2011

Facts: In 2004, the Los Angeles County Metropolitan Transportation Authority (MTA) resolved to take a property in downtown Los Angeles owned by Alameda Produce Market, Inc. (Alameda). MTA filed a complaint to take the property by eminent domain under California's "quick-take" eminent domain procedure. Under the quick-take procedure, MTA could take [...]


Land Use Law Report, Number 11, November 2011


Zoning: Scenic View Ordinance Too Vague To Enforce

Friday, November 18, 2011

Facts: Brendan Cunney sued the Board of Trustees of the Village of Grand View, New York, along with the village's Zoning Board of Appeals (ZBA) and its building inspector, Joseph W. Knizeski. Cunney alleged that a village zoning ordinance was void for vagueness and that the defendants violated his substantive due process rights by denying his application [...]

Taking: No Exaction Taking Without Deed

Friday, November 18, 2011

Facts: Coy A. Koontz owns property in St. Johns, Florida. Almost all of Koontz's property lies within a Riparian Habitat Protection Zone (RHPZ), which brings it under the jurisdiction of the St. Johns River Water Management District (St. Johns). In 1994, Koontz sought permits from St. Johns to develop 3.7 acres of his commercial property, 3.4 of which were wetlands [...]

Telecommunications: In Maine, No Suit Before Going Through A Local Planning Board Appeals Process

Friday, November 18, 2011

Facts: Mariner Tower II, LLC (Mariner) helps wireless providers build and operate wireless service facilities like transmission towers. In 2008, Mariner was working with Omnipoint Communications, Inc., which was doing business as T-Mobile, to build a new transmission tower in the Town of Topsham, Maine. Mariner found a location for the new tower and leased the [...]

Inverse Condemnation: Truck Stop Owners Entitled To Compensation For Loss Of Highway Exit

Friday, November 18, 2011

The State didn't pay full severance damages for the plaintiffs' parcel because the rest of the plaintiffs' land abutted the interchange, and the State reasoned that the plaintiffs would receive a significant "special benefit" from its proximity to the interchange. Indeed, plaintiffs operated a Flying J truck stop at Exit 66 from 1962 until 2003, when the State closed Exit [...]


Land Use Law Report, Number 10, October 2011


Historic Preservation: Lessee That Trashed Historic Site Is Liable For Damages Only, Won't Be Ejected

Wednesday, October 12, 2011

Facts: Cedar Farm, Harrison County, Inc. (Cedar Farm) owns about four square miles of land along the Ohio River in southern Indiana. The property includes Indiana's only antebellum plantation, which is on the National Register of Historic Places, and is a "classified forest," meaning that it includes habitats for rare and endangered wildlife. As a result, Cedar [...]

Environmental: Washington Toxic Cleanup Act Reimburses For Necessary Remediation Only

Wednesday, October 12, 2011

Facts: Plaintiff Iron Partners, LLC (Iron Partners) bought a property in Washington state that contained a buried landfill. It hired an environmental consultant to determine when the waste had been dumped and whether it posed a threat to human health or the environment. The consultant determined that the debris dated fromthe 1940s, when the property was used to build [...]

Younger Doctrine: Private Citizens' Suit To Enforce Landfill Ordinance Doesn't Affect Vital State Function

Wednesday, October 12, 2011

Facts: In 1984, Solano County, California passed a voter-enacted ordinance restricting the import of out-of-county solid waste to 95,000 tons per year. In 1992, the County stopped enforcing the ordinance after legal counsel concluded that the ordinance was likely an unconstitutional violation of the dormant Commerce Clause. The County then approved permit revisions for [...]

Telecommunications: 'Electric Transmission' Easement Might Not Extend To Fiber Optic Transmission

Wednesday, October 12, 2011

Inland Power & Light Company (Inland Power) owns an easement on the plaintiffs' property that gives it the right to construct, operate, and maintain "an electric transmission or distribution line or system." Inland Power maintains power poles and transmission lines on  the plaintiffs' property within the scope of the easement. It then licensed the use of its power [...]


Land Use Law Report, Number 9, September 2011


Trespass: Pesticide Drift Can Be A Trespass

Friday, August 19, 2011

Facts: Oluf and Debra Johnson converted their conventional family farm to a certified organic farm in the 1990s. They posted signs at the edges of their property announcing that the farm was chemical-free, and used buffer zones between their fields and neighbors' fields, which used chemicals. They notified a commercial pesticide sprayer, Paynesville Farmers [...]

Easement: U.S. Steel Entitled To Easement In Case Power Goes Out

Friday, September 16, 2011

Facts: In 1954, U.S. Steel Corporation (U.S. Steel) acquired an easement with the predecessor in interest to The Majestic Star Casino, LLC (Majestic) in Indiana. The easement agreement allowed U.S. Steel to install, maintain and operate electrical  transmission equipment over Majestic's property. U.S. Steel owned 98 towers that it used to transmit electricity [...]

Trespass: Field Dike Is An Improvement

Friday, September 16, 2011

The dike was built as early as the 1950s and separates the parties' property. The Minch Family alleged that the field dike interrupted the natural flow of water, particularly following heavy rain or snow melt, which causes the water to flood the Minch Family's fields. The Norbys countered that the Minch Family's failure to maintain a drainage ditch actually caused the problem. The [...]

Easement: No Prescriptive Easement For Ditch Carrying Water From Ambiguous Sources

Friday, September 16, 2011

Facts: A gravity-operated water main supplies water to the City of Buckley, Washington. The pipeline is unrestricted, and because the City cannot use all of the water, the excess is bypassed into Spiketon Ditch. The ditch runs across property owned by defendant Angela Toman, and although the City has easements across the neighboring properties, it does not have [...]

Easement: Landowner Improperly Relied On Government's Oral 'OK' To Interfere With Easement

Friday, September 16, 2011

However, this was a difficult task because Abernathy had to show the following: (1) the Corps must know the facts; (2) the Corps must intend that its conduct will be acted upon or make it appear to Abernathy that it intended that its conduct be acted upon; (3) Abernathy was ignorant of the true facts; (4) Abernathy relied on the Corps' conduct to his detriment; and (5) the Corps engaged [...]


Land Use Law Report, Number 8, August 2011


Mineral Rights: Vertical Drilling May Exceed Mineral Rights Owner's Limited Easement

Friday, August 19, 2011

Facts: A group of property owners who own only the surface rights to real property in Colorado sued the owner of the mineral rights to that property, Anadarko E&P Company LP (Anadarko), for trespass. In the nineteenth century, the Union Pacific Railroad owned all of the property in question, and it sold off the surface rights but retained the mineral rights and a [...]

Takings: Stabilization Doctrine Held No Sway; Riparian Damage Went On Too Long

Friday, August 19, 2011

The Corps uses the St. Lucie River to control the level of Lake Okeechobee. It does this by releasing water from the lake in anticipation of significant rainfall. The lake is freshwater, and when a large volume of freshwater is released into the brackish river, the river's salinity drops too low to support oyster beds, sea grass, and other marine organisms that require salt water to [...]

Fisheries: Fishery Agency Exercises Too Much Discretion, Contravenes Congressional Directive

Friday, August 19, 2011

Facts: Oceana, Inc. (Oceana) sued the National Marine Fisheries Service (Service), alleging that the Service was using an unlawful methodology to track bycatch. Fish that are unintentionally caught by nets or other fishing gear are bycatch, and Congress sought to reduce such "unnecessary waste of fish" by enacting the Magnuson-Stevens Fishery Conservation [...]


Land Use Law Report, Number 7, July 2011


Easements: Railroad Right Of Ways Revert To Landowners, Not Government

Monday, July 18, 2011

Facts: Several landowners in Bayfield County, Wisconsin sued the county for quiet title to their property. The properties in question had once been used by the North Wisconsin Railroad, but thirty years after the railroad abandoned the rail line in 1980, the county claimed that it owned a right of way where the rail line had once been. The county planned to establish [...]

Zoning: In Biz Zone, City Cannot Prohibit Church But Allow Private Clubs

Monday, July 18, 2011

Facts: The Elijah Group, Inc. (Elijah), a church, sued the City of Leon Valley, Texas, alleging that the city had violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) by amending its zoning code. Until March 2007, the city's zoning code allowed churches to operate in B-2 business zones if they first obtained a special use permit [...]

Annexation: City Cannot Use Ordinance To Unilaterally Annex Land

Monday, July 18, 2011

Facts: Two cities tried to annex the same land in Roane County, Tennessee. The county adopted a growth plan pursuant to Tennessee statute. The growth plan established urban growth boundaries for each of the county's municipalities. These urban growth boundaries are areas into which the municipalities are expected to grow, and it is presumptively reasonable for a municipality [...]

Environmental: Subway's Facade Change Was Not A NEPA Violation

Monday, July 18, 2011

Facts: The U.S. Federal Transit Authority (FTA) and the New York Metropolitan Transit Authority (MTA) sought to add an ancillary ventilation facility to the 72nd Street subway station. The facility would house ventilation and communication systems, cooling equipment, and an emergency egress for the subway station. The MTA planned to put the facility on the northwest [...]


Land Use Law Report, Number 6, June 2011


Conditional Use Permit: Case-By-Case Use Permit Application Review Violates Due Process

Tuesday, June 14, 2011

Facts: Chase and Kelly Brockstedt applied for a conditional land use permit (CUP) to remove a vacant dwelling and build two 7,500 square foot office buildings in Lewes, Delaware. The Sussex County Planning and Zoning Commission (Commission) unanimously recommended that the Sussex County Council (Council) approve the permit because the proposed use was similar [...]

Historic Preservation: State Road Project Not Subject To National Historic Preservation Act

Tuesday, June 14, 2011

Facts: Patricia A. Ragland McGehee and Richard McGehee sued the U.S. Army Corps of Engineers (Corps) in a last ditch attempt to save their historic home from being demolished and replaced by a state road. Their farmhouse was listed on the National Registry of Historic Places in February 2008, though it had been recognized as potentially eligible for listing [...]

Environmental: Mine Operations Resume Without New Approval After 17'Year Hiatus

Tuesday, June 14, 2011

Facts: Several environmental groups and Indian tribes challenged a decision by the Bureau of Land Management (BLM) to allow uranium mining to resume in the "Arizona 1 mine" approximately six miles north of the Grand Canyon. The mine is located on public land administered by the BLM, and the BLM must approve a mine owner's plan of operation before mining [...]

Eminent Domain: Town Improperly Demanded Title To Property In Exchange For Subdivision Approval

Tuesday, June 14, 2011

Facts: Plaintiffs Robert Collings, Caroline Collings and Linda S. Cornell own fifty-five acres of land in Stow, Massachusetts. Thirty-nine acres are zoned residential and suitable for development. The remaining acres are not suitable for development because they are located within the town's recreation/conservation district, the flood plain/wetlands district [...]


Land Use Law Report, Number 5, May 2011


Preemption: Plan To Blow Missouri Levee Not Subject To State Clean Water Act

Tuesday, May 31, 2011

Facts: On May 2, the U.S. Army Corps of Engineers intentionally created an artificial crevasse in the levee at Birds Point, Missouri, flooding approximately 130,000 acres of private and public property located behind the levee. A week earlier, on April 26, 2011, the State of Missouri and the Missouri Department of National Resources (together, Missouri) [...]

Just Compensation: Landowner Lost $3.5M In Compensation Under Land Use Regulation Scheme

Tuesday, May 31, 2011

Facts: In 2004, Oregon voters adopted Measure 37, which allowed landowners to receive just compensation if state or local land use regulations adopted after the landowners bought their property caused the property's value to fall. Under Measure 37, a landowner was entitled to just compensation if the government enforced the land use regulations 180 days after the landowner filed [...]

Eminent Domain: Federal Rail Law Preempts Eminent Domain Action

Tuesday, May 31, 2011

Facts: Arkansas Midland Railroad Company (Midland) leases a railroad right-ofway from Union Pacific Railroad Company (Union Pacific) in the City of North Little Rock, Arkansas. Midland, a short-line rail carrier, operates a railroad line on the right-ofway. As a short-line rail carrier, Midland removes loaded railroad cars from shippers anddelivers them [...]

Environmental: BLM Has Complete Discretion Over Off‐Road Vehicle Use

Tuesday, May 31, 2011

Facts: In 2003, the Bureau of Land Management (BLM) began an environmental assessment (EA) to examine the impact of a proposed project to reduce the likelihood of fires on Little Canyon Mountain in Oregon. The BLM manages about 2500 acres of Little Canyon Mountain, which is bordered in part by private property. The proposed project would reduce available fuel in the forest [...]


Land Use Law Report, Number 4, April 2011


Preemption: Local Ordinance Trumps Federal Rail Statute

Friday, April 08, 2011

Facts: In 2002, Coastal Distribution, LLC (Coastal) and New York & Atlantic Railway Company (NYAR) agreed to refurbish a rail yard on Long Island in New York to use as a “transload” facility. At a transload facility, shipments are transferred from one mode of transportation to another—in this case from trucks [...]

Environmental: Seed Companies Win Right To Plant Genetically Modified Sugar Beets

Friday, April 08, 2011

Facts: Several companies, including Monsanto Company and American Crystal Sugar Company, appealed a preliminary injunction ordering the destruction of juvenile sugar beets. These sugar beets had been genetically modified to resist Roundup, a herbicide. Growers who use these modified sugar beets, known as Roundup Ready beets, can treat [...]

Taking: Seven-Year Flood Was Not A 'Permanent Invasion' Of State Forest

Friday, April 08, 2011

Facts: The Army Corps of Engineers operates the Clearwater Dam in southeast Missouri. At times, the Corps must release a significant amount of water from the reservoir behind the dam. To bring the reservoir down to normal levels, the Corps can either release a lot of water over a short period of time, or it can release a lesser amount of water over [...]

Conditional Use: No Taking When County Denied Higher Density Development

Friday, April 08, 2011

Facts: Aubrey Henry owned 13.69 acres in rural Jefferson County, West Virginia that he hoped to transform into a housing development. Though the property was zoned rural-agricultural, Henry operated a restaurant on the land until 1993 when the restaurant burned down. Instead of trying to rebuild his restaurant, he applied for a conditional use permit [...]


Land Use Law Report, Number 3, March 2011


Zoning: A Zoning Reg Can Be The Basis Of An RLUIPA Claim

Friday, March 04, 2011

Facts: Faith Fellowship Foursquare Church (Church), a local affiliate of International Church of the Foursquare Gospel (ICFG), wanted to build new church facilities in the City of San Leandro (City). The Church had outgrown its existing facilities, and its full congregation could no longer gather together at the same time; instead, the Church held three [...]

Preemption: Federal Air Safety Laws Don't Preempt State/Local Environmental Laws

Friday, March 04, 2011

Facts: Goodspeed Airport (Goodspeed) is a small, state-licensed, private commercial airport in East Haddam, Connecticut. Part of the airport is protected wetlands, which are regulated by the East Haddam Inland Wetlands and Watercourses Commission (Wetlands Commission). Goodspeed would like to cut down some trees and vegetation in the protected wetlands, but the [...]

Environmental: Impaired Water Body Status May Cause Decline In Property Value

Friday, March 04, 2011

Facts: Barnum Timber Company (Barnum), a timber-harvesting company, owns property in the Redwood Creek watershed in California. Redwood Creek has been listed an "impaired water body" under § 303(d) of the Clean Water Act since 1992. This means that the EPA and the State of California must create plans to keep the level of various pollutants in the waterway [...]

Quiet Title Act: D.C. Circuit Limits Quiet Title Act To Adverse Claimants

Friday, March 04, 2011

Facts: David Patchak sued Kenneth Lee Salazar, the Secretary of the Interior, to prevent the Secretary from holding 147 acres of land in trust for the Match-EBe-Nash-She-Wish Band (Gun Lake Band). The land, known as the Bradley Tract, is in the rural township of Wayland, Michigan. Wayland is a farming community that is sparsely populated. The Gun [...]


Land Use Law Report, Number 2, February 2011


Regulatory Taking: No Regulatory Taking When Landowner Initiated Process That Led To Regulation

Friday, February 11, 2011

Facts: In 1984, John Bettendorf applied to the St. Croix County (the County) Planning, Zoning, and Parks Committee to re-zone part of his agricultural-residential property to commercial so that he could build and operate a trucking terminal there. The County denied Bettendorf's application but struck a deal with Bettendorf that let him build the truck terminal: [...]

Environmental: 9th Circuit Abandons Federal Defendant Rule In NEPA Cases

Friday, February 11, 2011

Facts: Two conservation groups filed a claim against the U.S. Forest Service, alleging that the Forest Service had violated NEPA when it adopted a travel plan for Idaho's Sawtooth National Forest. The travel plan allowed motorized vehicles to use 1,196 miles of roads and trails in the forest. The conservation groups alleged that the Forest Service had not prepared an [...]

Energy: '2009 Update' To FERC Rental Fees Gets Shot Down

Friday, February 11, 2011

Facts: Section 10(e)(1) of the Federal Power Act (FPA), 16 U.S.C. § 803(e)(1), requires the Federal Energy Regulatory Commission (FERC) to set reasonable annual rental fees for hydropower project licensees who use federal property to run their hydropower projects. In 1987, FERC adopted Order No. 469, which stated that FERC's fees would be based on a fee schedule [...]

Historic Preservation: FEMA's 'Phased Approach' To Historic Preservation Review Is OK

Friday, February 11, 2011

Facts: Hurricanes Katrina and Rita severely damaged Holy Cross College, Inc. (Holy Cross) in New Orleans' Lower Ninth Ward. Holy Cross applied for Federal Emergency Management Agency (FEMA) Public Assistance funds to build a new campus in the Gentilly neighborhood of New Orleans. The site of the new campus had previously been the site of Cabrini Church and the St. Frances [...]


Land Use Law Report, Number 1, January 2011


Easement: Constant Traffic Across Property Should Have Alerted Landowners Of Adverse Use

Thursday, January 20, 2011

Facts: Dennis D. Murphy, as trustee of the Holmes Road Realty Trust (Trust), sued the Trust’s neighbors to establish a prescriptive easement across their properties. The Trust sought a forty-foot-wide right-of-way across land owned by John F. Chaves, Sr. and John F. Chaves, Jr. (Chaveses) The easement in question is a partially paved and partially [...]

Takings: No Physical Invasion Necessary For Railroad Easement Takings Claim

Thursday, January 20, 2011

Facts: Several landowners in Arizona filed a takings claim against the federal government after the Department of Transportation’s Surface Transportation Board (Board) allowed a railway to suspend abandonment proceedings that would have resulted in a 100-foot-wide rail easement reverting back to those landowners. The San Pedro Railroad Operating Company, [...]

Special Use Permit: Any Rational Reason Prevents Finding Of Animus In Due Process Suit

Thursday, January 20, 2011

Facts: Heidbreder, Inc. (Heidbreder) sued the City of Crown Point, Indiana and its former mayor, Daniel M. Klein, alleging that the defendants violated Heidbreder’s due process rights. Heidbreder contracted to sell a piece of property in Crown Point to a buyer who planned to build a redi-mix concrete plant on the land. The sale was contingent on the [...]

Zoning: Before Passing Zoning Ordinances, Minnesota Municipalities Must Articulate Rational Basis

Thursday, January 20, 2011

Facts: Clear Channel Outdoor, Inc. (Clear Channel) sued the City of St. Paul, Minnesota (City) after the City passed a city ordinance banning billboard extensions. In 2000, the City Council banned new billboards within the city limits, but grandfathered in existing billboards as legal nonconforming uses. Clear Channel owns and maintains about 390 billboards in [...]

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