Land Use Law Report
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Articles for the year 2012

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Total Result(s) Found: 49


Land Use Law Report, Volume 40, Number 12, December 2012


Easement: Govt.'s Interim-Trail-Use Notice Triggers Rails-To-Trails Taking

Wednesday, December 12, 2012

Facts: In 2005, the federal Surface Transportation Board issued a Notice of Interim Trail Use (NITU) for a ten-mile-long railroad corridor in West Sacramento, California, authorizing the conversion of the railroad corridor into a recreational trail under the federal Trails Act. Subsequently, landowners who own property underlying that corridor sued the United States, alleging that [...]

Environmental: Threat To Consent Decree Funding Doesn't Warrant Federal Jurisdiction

Wednesday, December 12, 2012

Facts: In 1998 and 1999, the U.S. District Court for the Northern District of Georgia entered two consent decrees requiring the City of Atlanta to clean up its sewer system. The consent decrees resolved a 1995 lawsuit against Atlanta for violating the federal Clean Water Act and required Atlanta to bring its sewer system into compliance with federal environmental requirements [...]

Preservation: Oregon Statute Does Not Preempt City's Stricter Vegetation Requirements

Wednesday, December 12, 2012

Facts: The Willamette River Greenway is protected land along the Willamette River. The Oregon Legislative Assembly established the greenway in 1973 to "protect and preserve the natural, scenic and recreational qualities of lands" along the river. The Legislative Assembly recognized that it needed to balance its preservation goals with the existing residential, commercial, and agricultural [...]

Preemption: Mobile Home Conversion Procedure Doesn't 'Repeal' Other California Permit Schemes

Wednesday, December 12, 2012

Facts: A mobile home park owner, Pacific Palisades Bowl Mobile Estates, LLC (Pacific Palisades), sued the City of Los Angeles after the City denied Pacific Palisades' application to convert its mobile home park from tenant occupancy to resident ownership. Pacific Palisades did not seek a California Coastal Act permit or Mello Act approval as part of its conversion application [...]


Land Use Law Report, Number 11, November 2012


Takings: U.S. Supreme Court Considers Takings In Koontz

Friday, November 16, 2012

Two questions are presented: (1) whether the government can be liable for a taking where it denies a land use permit because the applicant refuses to agree to a permit condition that violates the essential nexus and rough proportionality rules established in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) ("Nollan") and Dolan v. City of Tigard, 512 U. [...]

Historic Preservation: Charleston's Height-Raising Ordinance In Historic District Wasn't Unlawful Spot Zoning

Friday, November 16, 2012

Before the rezoning at issue here, the library was "split-zoned": 60 percent of the building was zoned 3X (height limit of 105 feet) and 40 percent of the building was zoned 55/30 (height limit of 55 feet). The building section zoned 3X faced King Street and a historic church. The building section zoned 55/30 faced the Old Citadel, which is now an Embassy Suites hotel and also zoned 55 [...]

Easement: Kansas Prescriptive Easements Require A Claimant's Exclusive Use

Friday, November 16, 2012

Facts: Joseph R. Koch sued his neighbors, E. Lynn and Jayne E. Packard, asserting that he had acquired a prescriptive easement in a roadway on the Packards' land. He sought a determination that he had acquired a prescriptive easement, an award for damages for the Packards' interference with the easement, and a permanent injunction enjoining the Packards from future interference [...]

Environmental: Government Must Mitigate GMO Effects In Wildlife Refuges

Friday, November 16, 2012

Facts: The U.S. Fish and Wildlife Service (FWS) manages the National Wildlife Refuge System, which includes 128 national wildlife refuges in the southeast. Since the 1930s, the FWS has permitted agricultural production in some of these wildlife refuges. Even though FWS policy prohibits the use of any genetically modified organism (GMO) crops in these refuges "unless there is [...]


Land Use Law Report, Number 10, October 2012


Mining: The Terms 'Reassign' And 'Reconveyance' Show Intent To Revert Property To Grantor

Wednesday, October 17, 2012

Facts: LAC Minerals (USA), LLC (LAC) engaged in mineral exploration pursuant to 90 mining claims involving 944 acres of land in South Dakota. In 1985, LAC's predecessor in interest had acquired these mining claims from Robert Fowler's predecessor in interest. Under the deed, Fowler reserved a right "to obtain a reconveyance in the property . . . as specified in" a [...]

Taking: 'Invasive' Flood Of Raw Sewage Can Be A Taking

Wednesday, October 17, 2012

Facts: Raw sewage "invaded" the basement of Ron and Jody Van Meter's home on October 19, 2011. The Van Meters contacted the City of Wells, Nevada, which owned and operated the sewer lines, asking the City to clean up the mess and compensate the Van Meters for damage to their property. The City Manager, Jolene M. Supp, refused. The Van Meters cleaned [...]

Sovereign Immunity: Katrina Litigation Can't Touch Corps

Wednesday, October 17, 2012

Facts: After Hurricane Katrina, many people sued the federal government, alleging that the U.S. Army Corps of Engineers (Corps) was responsible for the flooding that damaged their property. One set of such claims focused on the Corps' creation and maintenance of the Mississippi River Gulf Outlet (MRGO), a shipping channel between New Orleans and the Gulf of Mexico. Those plaintiffs [...]

Historic Preservation: Conservation Group Lacked Standing To Challenge Historic Site's De-Listing

Wednesday, October 17, 2012

Facts: The 1921 Battle of Blair Mountain, in West Virginia, was the "largest organized armed uprising in American labor history." Union and non-union forces fought until federal troops intervened. In 2008, the Blair Mountain Battlefield was nominated to the National Register of Historic Places. Before a property can be listed on the National Register, owners of the nominated property [...]


Land Use Law Report, Number 9, September 2012


Telecommunication: Town Couldn't Deny Cell Tower Based On Unsubstantiated Opinion

Thursday, September 20, 2012

Facts: T-Mobile Central, LLC (T-Mobile) applied to the West Bloomfield Township, Michigan to build a new cell phone tower in the township. The township denied the application, and T-Mobile sued, arguing that the township's denial was not supported by substantial evidence as required by the federal Telecommunications Act. T-Mobile also asserted that the denial had the effect [...]

Zoning: City Ordinance Limiting Billboards To "Harmonious Use" Too Vague

Thursday, September 20, 2012

Facts: CBS Outdoor, Inc. (CBS) applied for a special land use permit to erect and maintain a 300-square-foot LED billboard in the City of Royal Oak, Michigan. Although the city's planning department initially reviewed the site plan and told the City Planning Commission (the Commission) that the proposed billboard met the city's billboard ordinance standards, the Commission [...]

Zoning: Court Reverses $3.6 Million Award To Landowners Who Lost Out On Sale To Wal-Mart

Thursday, September 20, 2012

Facts: The Loesels owned a 37-acre property in the Township of Frankenmuth, Michigan. The adjoining City of Frankenmuth is known as "Michigan's Little Bavaria" and is a popular tourist destination famous for its many Bavarian-themed restaurants and stores, including Bronner's Christmas Wonderland, "the world's largest year-round Christmas store." The Loesels [...]

Environmental: 'Dirty Water' Challenge To Industrial Chicken Farm Fails

Thursday, September 20, 2012

Facts: Sanderson Farms, Inc. (Sanderson Farms) sought to build and operate a large poultry processing facility in Nash County, North Carolina. In addition to the processing facility itself, Sanderson Farms would also need land for a hatchery and land for dispersing the facility's wastewater ("sprayfields"). Because Sanderson Farms didn't require one contiguous property for [...]


Land Use Law Report, Number 8, August 2012


Takings: 'Futility Exception' Fails Where Expected Permit Denial Is Based On Conflict Over A Separate Matter

Friday, August 17, 2012

Facts: In 1978, E. Wayne and Jean Hage acquired a 7,000-acre Nevada ranch. The ranch also included grazing permits to use 752,000 acres of adjoining federal lands managed by the Forest Service and the Bureau of Land Management. Along with the ranch, the Hages acquired water rights in streams and ditches now located on federal land. Hages' predecessors had acquired these water rights [...]

Inverse Condemnation: No Right To Continue Landfill Use When Owner Ceased Use Voluntarily

Friday, August 17, 2012

Facts: Richard Griffin and Griffin Farm & Landfill (together, Griffin) began operating a "construction and demolition" (C&D) landfill in 1992, pursuant to indefinite zoning approval from Union County, North Carolina. C&D landfills may collect any solid waste from construction and demolition of pavement or buildings. In 2004, the State of North Carolina [...]

Utilities/Environmental: Hydropower Projects Can Be Authorized Under Any Nationwide §404 Permit

Friday, August 17, 2012

Facts: Puget Sound Energy (Puget) operates a hydroelectric power plant on the Snoqualmie River in Washington. The channel leading to the dam is narrow, which causes significant flooding during heavy rains. Puget has obtained a license from the Federal Energy Regulatory Commission (FERC) to upgrade and modify its plant; part of this upgrade includes lowering and lengthening the dam [...]

Inverse Condemnation: Owners Had No Investment-Backed Expectations Where They Shouldered No Risk

Friday, August 17, 2012

Facts: Several Texas property owners, including Trail Enterprises, Inc. d/b/a Wilson Oil Company (collectively, owners), acquired mineral rights in certain properties now located within the City of Houston. However, at the time the properties were acquired, they were located within the City's extraterritorial jurisdiction (ETJ). In 1967, the City enacted an ordinance that restricted [...]


Land Use Law Report, Number 7, July 2012


Development: Continuing Moratorium Was Reasonable Way To Limit Development During Appeal

Tuesday, July 17, 2012

Facts: The City of Bainbridge Island, Washington (City) is a densely developed island in the Puget Sound. In 2001, the City Council imposed a moratorium on "shoreline substantial development applications for construction of new docks and piers . . . in Blakely Harbor," the most rural and least developed of Bainbridge Island's harbors. No dock or pier had been built in Blakely [...]

Condemnation: No Inverse Condemnation When Easement And Flooding Are Merely Anticipated

Tuesday, July 17, 2012

Facts: Stueve Bros. Farms, LLC and Mill Creek Farming Associates, LLC (the plaintiffs) own property in the City of Chino, California (the City) near the Prado Dam. The U.S. Army Corps of Engineers (Corps) manages the Prado Dam Flood Control Basin using flowage easements that the government condemned during the 1940s. These flowage easements cover the plaintiffs' property [...]

Environment: Agency Relied On Wishful Thinking, Rather Than An EIS, To Address Impact

Tuesday, July 17, 2012

Facts: A developer sought to expand the number of boat slips in a cove about 3,000 feet from the Back Bay National Wildlife Refuge in Virginia Beach. Back Bay is "one of the most diverse and extensive ecosystems in southeastern Virginia" and its marsh characteristics are considered to be "globally rare." State and federal government agencies have spent "countless [...]

Historic Preservation: Mere Existence Of Buildings Pending Appeal Cannot Support Continuing Violation Penalty

Tuesday, July 17, 2012

Facts: William Asdal, the owner of Asdal Builders, LLC and Asdal Renovations, LLC, and his wife purchased an old farm in New Jersey. The entire property is in the floodway of the South Branch of the Raritan River and is a designated flood hazard area. The property operated as a farm for more than two centuries, but farming had ceased by 2000. The property was also home [...]


Land Use Law Report, Number 6, June 2012


Zoning: Business Owners Have Property Interests In Their Business Permits

Thursday, June 07, 2012

Facts: Debra Bowlby applied for business permits to operate a "Sno-Cone" hut on a busy corner in the City of Aberdeen, Mississippi. By the time she had applied for the permits, she had leased the lot and purchased a small hut. Although the lot was zoned C-2, for "larger businesses," the Aberdeen Planning and Zoning Board (Board) granted Bowlby the [...]

Easement: Conservation Easement Forbids Owners From Filling Sinkhole

Thursday, June 07, 2012

Facts: The Nature Conservancy (Conservancy) sold a 100-acre farm in Kentucky to Larry and Marsha Sims, subject to a conservation easement. The purpose of the conservation easement was to ensure that the property would "be retained forever substantially undisturbed in its natural condition," and to that end, the easement included twelve restrictions on the use of the [...]

Environment & Historic Preservation: Site-Specific Standing Required To Challenge DOT Act Violation

Thursday, June 07, 2012

Facts: A group of plaintiffs, including Hawaii's Thousand Friends and The Small Business Hawaii Entrepreneurial Education Foundation, sued the Federal Transit Administration, the State Department of Transportation, and the City and County of Honolulu, alleging that the defendants had violated Section 4(f) of the Department of Transportation (DOT) Act by [...]

Trespass: Government May Win Double Damages Following Forest Fire

Thursday, June 07, 2012

Facts: In September 2007, the Moonlight Fire burned approximately 65,000 acres in Lassen and Plumas Counties, California, including approximately 45,000 acres of National Forest forestland. The California Department of Forestry and Fire determined that a logging employee ignited the fire while operating a bulldozer. Two years after the fire, the United States sued the logging companies [...]


Land Use Law Report, Number 5, May 2012


Zoning: No Futile Special Use Permit Application Necessary For RLUIPA Complaint

Monday, May 07, 2012

Facts: In 2010, a small congregation in The Village of Bolingbrook, Illinois, which was a branch of a larger not-for-profit organization, Liberty Temple Full Gospel Church, Inc. (Liberty Gospel), began looking for a permanent location. It encountered resistance when the first landlord it approached warned that Bolingbrook's mayor, Roger Claar, did not want any new churches [...]

Environment: The Forest Service--Not Ranchers--May Have Wreaked Habitat Damage

Monday, May 07, 2012

Facts: Loren and Piper Stout own a ranch in Oregon. They have permits to graze their cattle in the Murderer's Creek Wild Horse Territory (the territory) in the Malheur National Forest, which are federal lands. However, they were only able to graze their cattle in the territory for nineteen days in 2009 because of damage to the habitat of an endangered species, the Middle Columbia [...]

Housing: City That Controls Private Subsidized Apartments Must Meet Due Process Requirements

Monday, May 07, 2012

Facts: In 2007, Sharon Green moved into the Heritage Oaks Apartments, a low-income housing unit subsidized by the City of Glendora, California. The unit was part of an apartment complex operated by a private company, Anchor Pacifica Management Company (Anchor Pacifica), on city-owned land. The developer had agreed with the city to set aside 30 percent of the 151 units for low [...]

Regulatory Taking -- Historical Preservation: Rejection Of 'Grandiose' Condo Complex Doesn't Preclude Approval Of A 'Less Ambitious' Plan

Monday, May 07, 2012

Facts: The Natchez Pecan Shelling Factory in the City of Natchez, Mississippi was designated a protected Mississippi Landmark in 2006. This designation means that the Mississippi Department of Archives and History (MDAH) must issue a permit before the property or its improvements can be "taken, altered, damaged, destroyed, salvaged, restored, renovated or excavated& [...]


Land Use Law Report, Number 4, April 2012


Easement: Public Easement Is A Right-Of-Way

Thursday, April 12, 2012

Facts: Chuck R. Starbird applied for a building permit from the Town of Minot, Maine. He planned to build a single-family home on property that abutted a portion of road that was a public easement. There was no other access to the property. The Town's Code Enforcement Officer (CEO) denied Starbird's application because the property lacked road frontage or access to a publicly [...]

Environmental: Idaho May Have To Curtail Mega-Loads Clogging A Scenic Highway

Thursday, April 12, 2012

Facts: In 2011, the Idaho Transportation Department (ITD) authorized an oil company to transport "mega-loads" of mining equipment on U.S. Highway 12, a two-lane highway that runs through the Clearwater National Forest (Forest). The oil company, Imperial Resources Ventures Limited (Imperial Oil), transports tar sand mining equipment through Idaho to Canada. The mega-loads are so [...]

Preemption: Local Laws Govern Site Of Natural Gas Facility

Thursday, April 12, 2012

Facts: Washington Gas Light Company (Washington Gas) owns and operates natural gas pipelines throughout Maryland. It owns and operates a natural gas substation in Prince George's County, Maryland, which sits at the intersection of a number of liquefied natural gas (LNG) pipelines, also owned by Washington Gas. The land on which the substation sits is zoned for open space, but [...]

Nuisance: Beach Cottages Pose Safety Risk

Thursday, April 12, 2012

Facts: Roc F. Sansotta manages and partly owns six cottages on Seagull Drive in Nags Head, North Carolina. The cottages face the ocean and, after years of beach erosion, now sit beyond the vegetation line in the middle of the beach. Sansotta has buffered the cottages with sandbags and structural enhancements, protecting them from storm damage. However, in November 2009, a storm struck [...]


Land Use Law Report, Number 3, March 2012


Special Issue:rluipa's Substantial Burdens

Thursday, March 15, 2012

The Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000ff (RLUIPA) prohibits the government from imposing "substantial burdens" on religious exercise--unless such exercise interferes with a compelling government interest and is the least restrictive means of furthering that interest. The challenger on an RLUIPA claim has the initial burden of proof to show [...]

Use Permit: 'Leapfrog Development' Defense Fails To Hurdle Imposition Of Substantial Burdens

Thursday, March 15, 2012

The U.S. Court of Appeals for the Ninth Circuit remained silent on any discriminatory intentions of Sutter County, California after the County denied a Sikh society permits to build a small temple on two separate occasions. However, the court did clearly state that the County's actions constituted a substantial burden for members of the Guru Nanak Sikh Society of Yuba City ( [...]

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

Thursday, March 15, 2012

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 separate services [...]

Special Permit: Zoning Board's Arbitrary Rejection Prompts Substantial Burden Finding

Thursday, March 15, 2012

Facts: The Westchester Day School (WDS), located in the Village of Mamaroneck, New York, 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 [...]

Use Agreement: Inconvenience Is Not A Substantial Burden To Religion

Thursday, March 15, 2012

Facts: Northshore United Church of Christ (the Church) hosted "Tent City 4" in 2004. Tent City 4 is an encampment of homeless people that moves to a new location every 90 days. The City of Woodinville, Washington (the City) allowed the Church to host Tent City 4 on City property. The parties executed a Temporary Property Use Agreement (the Agreement) to govern the arrangement [...]


Land Use Law Report, Number 2, February 2012


Inverse Condemnation: Development Delay Leads To Impermissible Spot oning

Friday, February 10, 2012

Facts: Avenida San Juan Partnership (Avenida) owns a 2.85-acre parcel in the middle of a residential tract of the City of San Clemente, California (City). The land surrounding the parcel has all been developed residentially, and it is zoned for four dwellings per acre. When Avenida bought its parcel in 1980, it was zoned for six dwellings per acre, and Avenida [...]

Environmental: One Project's Economic Advantage To Another Does Not Make A NEPA 'Connected' Action

Friday, February 10, 2012

Facts: In 2001, the Regional Transportation District (RTD) bought approximately 20 acres of land in Denver, which included the Denver Union Station (Station). RTD intended to redevelop the Station as a multi-modal transportation hub, ideally including rail, light rail and commercial bus services. To obtain federal funding for the project, the Federal Transit Administration [...]

Environmental: Deregulation Of Genetically Modified Crop Did Not Violate Plant Protection Act

Friday, February 10, 2012

Facts: The Center for Food Safety (Center) challenged a federal agency's decision to deregulate Round-Up Ready Alfalfa (RRA), a genetically engineered crop that is designed to withstand the direct application of glyphosate, the active ingredient in commercial herbicides like Round-Up. The U.S. Department of Agriculture's Animal and Plant Health Inspection Service [...]

Taking: 'Hope' Of A Mitigation Bank Permit Is Not A Compensable Property Interest

Friday, February 10, 2012

Facts: Hearts Bluff Game Ranch, Inc. (Hearts Bluff) bought 4,000 acres of land in Texas to use as a mitigation bank. Mitigation banks are preserved or restored wetlands that are used to offset the negative environmental effects of destructive land uses. Mitigation bank owners are not limited to mitigating the environmental effects of their own development projects; they [...]


Land Use Law Report, Number 1, January 2012


Historic Preservation: Loss Of Architecturally Significant Buildings Negatively Impacts Neighborhood's Historical Integrity

Friday, January 20, 2012

Facts: In September 2011, Academy of Our Lady of Peace (Academy) sued the City of San Diego (City) after the City denied two development permits that would have allowed Academy to add a classroom building and parking deck to its campus. Academy wanted to demolish or remove three existing single-family residences, which it owned, and then build a 20,545 square-foot [...]

Taking: Replenished Beach Belongs To State, Not Beachfront Owner

Friday, January 20, 2012

Facts: In 1838, the Republic of Texas granted to Michael B. Menard property along the Gulf of Mexico on Galveston Island. Eventually, Henry Porretto bought some of that property, and he developed it into Porretto Beach, which includes paid parking and concessions. The original conveyance to Menard was dry land, but now most of that conveyance is submerged. In 1994, the [...]

Taking: 'Just Compensation' State Statute Did Not Violate Substantive Due Process

Friday, January 20, 2012

Facts: Oregon's Or. Rev. Stat. § 197.352, known as Measure 37 and enacted in 2005, requires state and local governments to "compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties." MacPherson [...]

Telecommunications: 'It's An Eyesore' Cell Tower Objection Must Be Accompanied By Expert Analysis

Friday, January 20, 2012

Facts: On behalf of New Cingular Wireless PCS, LLC, AT&T Mobility Corp.  (AT&T) proposed to remedy a significant wireless telecommunications service gap in the Town of Fenton, New York by placing a 150- foot cellular telephone tower within a fenced compound on a large wooded lot on Steed Road. The Town Board denied AT&T's application to create [...]

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