Land Use Law Report
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Articles for the year 2013

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Total Result(s) Found: 51


Land Use Law Report, Volume 41, Number 12, December 2013


Environmental: Citizens Must Defer To Govt. Suits Against Clean Water Act Violators

Tuesday, December 17, 2013

Facts: Black Warrior Riverkeeper, Inc. and others (collectively, plaintiffs) filed a citizen suit against Black Warrior Minerals, Inc. (Black Warrior) for violations of the Clean Water Act. The suit alleged that Black Warrior violated the Act’s new source performance standards. Black Warrior operates a coalmine in Alabama and was operating [...]

Easements: Dedication Of Street Didn’t Extinguish Easement In Alley

Tuesday, December 17, 2013

Facts: The Old Dominion Boat Club (ODBC) challenged the City of Alexandria’s decision to grant a special use permit to build an outdoor dining deck in an alley in which ODBC claimed it owned a private easement. In 1789, John Fitzgerald and Valentine Peers executed a deed of partition, which divided land between them but also reserved " [...]

Zoning/Use Permit: Denial Of Mental Health Facility Permit Was Arbitrary And Capricious

Tuesday, December 17, 2013

A clinic that identified its intended property use as "psychiatric partial hospitalization" might have avoided a lot of trouble--and the costs of litigation--if it had matched its use description to the zone’s permitted use: "medical or paramedical clinic." Doing otherwise triggered the scrutiny of city officials who apparently didn’t want a psychiatric facility [...]

Takings/Just Compensation: Govt.’s Reasonability During Litigation Didn’t ‘Cure’ Unreasonable PreLitigation Position

Tuesday, December 17, 2013

Facts: After developers won a jury verdict finding that property taken by eminent domain was worth more than twice the government’s initial valuation of the property, they sought attorney’s fees and expenses from the government under the Equal Access to Justice Act (EAJA). The developers, 515 Granby, LLC (Granby) and Marathon Development Group [...]


Land Use Law Report, Volume 41, Number 11, December 2013


Preemption: Town of Lake George Can’t Regulate Dock Construction In State-Controlled Waters

Friday, December 06, 2013

Facts: Petitioner The Hart Family, LLC (Hart) owns property in a subdivision of the Town of Lake George, New York. The property includes about 200 feet of shorefront on Lake George. About 45 other lots have easements across Hart’s property so that they can swim, launch boats, and store boats on the shorefront. Before this proceeding, Hart [...]

Statute of Limitations: Developers Can Challenge Below-Market Housing Requirements While Building

Friday, December 06, 2013

Facts: Sterling Park, L.P. and Classic Communities, Inc. (together, Sterling Park) wanted to build 96 condominiums on a 6.5-acre parcel of land in Palo Alto, California (the City). Under the City’s Municipal Code, a development project involving five or more acres must provide at least 20 percent of its units at below-market [...]

Eminent Domain: Judges Must Consider Zoning Change Likelihood In Eminent Domain Cases

Friday, December 06, 2013

Facts: In 2002, developer 66 East Allendale, LLC (East Allendale) bought 2.13 acres in the Borough of Saddle River, New Jersey (the Borough). The property was split-zoned, with about one third of the property in the office zone (O-1) and two thirds in the residential zone (R-1). The O-1 zone permitted office buildings, but it included a 30-percent [...]

Zoning: Boston College Redevelopment Plan Immune To Improper Adjudication Charge

Friday, December 06, 2013

Owners of property that abuts BC’s new property challenged the IMP and sought an injunction to prevent the IMP from being implemented. The plaintiffs alleged that BC, the Authority, and the Boston Zoning Commission, among others (collectively, defendants), had violated article 29 of the Massachusetts Declaration of Rights during the IMP approval process. Specifically, the [...]


Land Use Law Report, Volume 41, Number 10, October 2013


Historic Preservation: Historic Preservation Is ‘Related’ To Zoning

Thursday, October 17, 2013

Facts: 500 LLC, a real estate firm, owns a vacant four-story building in the City of Minneapolis’ warehouse district. In September 2008, 500 LLC sought site plan approval for a proposed development. Before the Minneapolis City Council could review the site plan application, the Minneapolis Heritage Preservation Commission (the Preservation [...]

Environmental: Seattle Stadium Project Doesn’t Require Environmental Review--Yet

Thursday, October 17, 2013

Facts: Chris Hansen, a hedge fund manager and basketball enthusiast, approached the City of Seattle and King County, Washington (together, the government) with a proposal to build a new sports stadium in Seattle and to bring NBA and NHL teams to the city. Hansen proposed a location near the existing football and baseball stadiums [...]

Eminent Domain: In Virginia, Only Blighted Properties Can Be Condemned

Thursday, October 17, 2013

Facts: In 1998, the City of Norfolk, Virginia approved a project that would redevelop a nine-and-a-half-block area that was blighted. There were two challenges to the Norfolk Redevelopment and Housing Authority’s condemnation of properties in the blighted area. In both cases, the courts upheld the Housing Authority’s condemnation of [...]

Special Use Permit: Reopening An Existing Landfill Increases Use Intensity

Thursday, October 17, 2013

Facts: The City of Meriden, Connecticut owns a piece of land in the Town of Wallingford, Connecticut that used to be a landfill. Though the landfill had been long-closed, Meriden sought to build a "disposal cell" on about six acres of the landfill property. Meriden planned to dispose of debris from public works projects, such as street [...]


Land Use Law Report, Volume 41, Number 9, September 2013


Government Can’t Define Flood Taking As ‘More Than One Flood’

Monday, September 09, 2013

The Morganza Spillway is part of the Mississippi’s flood control system, managed by the Corps. However, unlike the upriver Old River Control structure, which the Corps uses routinely to divert water, the Morganza Spillway has only been opened twice—once in 1973 and once in 2011. The Corps elected to open the Morganza Spillway in 2011 because it was concerned that floodwaters would compromise [...]

Site Approval Not A Protected Property Right If It Depends On Valid Liquor License

Monday, September 09, 2013

Facts: Frey Corporation (Frey) sued the City of Peoria, Illinois after the city revoked Frey’s site approval to sell alcoholic liquors on its property. Frey owned a shopping center in Peoria that included a grocery store, Shop Rite. Shop Rite held a city-issued liquor license. However, the city revoked that license when Shop Rite’s president was caught illegally selling Viagra at the [...]

Previously Protected Communications May Become Part of CEQA Records

Monday, September 09, 2013

On July 8, 2013, California’s Fifth District Court of Appeal held that communications conducted prior to project approval between an agency and applicant under the California Environmental Quality Act (CEQA) should be included in the project’s administrative record—but that such communications occurring after project approval may be protected. If it survives challenge, this decision [...]

Cattle Have Potential To Pollute, So They Must Stay Away From Creek

Monday, September 09, 2013

Facts: Joseph Lemire owns a farm in Washington. Pataha Creek runs through the farm. Lemire runs a small cattle operation on his farm, and the Washington Department of Ecology (DOE) determined that Lemire’s cattle ranching operation created conditions that were detrimental to the water quality of Pataha Creek. The DOE issued an administrative order under the [...]

Zoning: Ordinance To Protect Environmental Characteristics Doesn’t Apply To Land Without Them

Friday, September 13, 2013

Facts: Thomas and Carol Griepenburg sued the Township of Ocean, New Jersey after the township downzoned their 31-acre property from a residential (R-2) to an environmental conservation (EC) district. Most of the property is wooded and undeveloped; the only building on the property is the Griepenburgs’ residence. [...]


Land Use Law Report, Volume 41, Number 8, August 2013


Environmental: Clean Water Review Of Highway Sections Was Not Improper “Segmentation”

Wednesday, August 14, 2013

Facts: The Federal Highway Administration and the Indiana Department of Transportation (transportation agencies) determined that the existing routes covering the approximately 150 miles between Indianapolis and Evansville were insufficient. The direct route between them was narrow and overcrowded, plagued by traffic accidents. And a second route added 13 miles to the drive. The [...]

Nuisance: ‘Right To Farm’ Protects Agricultural Operation Change From Corn To Hogs

Wednesday, August 14, 2013

Facts: In 2005, Country View Family Farms, LLC (Country View) began farming corn and beans on agricultural property in Randolph County, Indiana. The property’s previous owners had used it for agricultural purposes since 1956. In 2007, Country View converted the property into a hog farm housing 2,800 hogs. Country View’s neighbors objected to the resulting [...]

Natural Gas: States Must Review Air Quality Permit Applications After FERC Certification

Wednesday, August 14, 2013

The Maryland Department of the Environment (MDE) returned to Dominion the air quality permit application, explaining that Dominion had failed to meet one of the permit requirements: a demonstration that Myersville had approved the project for all applicable zoning and land use requirements. Indeed, the Town of Myersville denied Dominion’s zoning application because [...]

Inverse Condemnation: Failure To Seek Development Permits Ends Inverse Condemnation Claim

Wednesday, August 14, 2013

Facts: The owners of seven properties in the Florida Keys sued Monroe County, Florida seeking just compensation for inverse condemnation. They alleged that the county had deprived them of all reasonable economic use of their property when it enacted development regulations in the late 1980s. The landowners all professed to have development plans, but none [...]


Land Use Law Report, Volume 41, Number 7, July 2013


Takings: Takings Clause Applies To Demands For Money--Not Just Land

Tuesday, July 09, 2013

Facts: In 1994, Coy Koontz, Sr. first tried to develop a 3.7-acre piece of land in Florida. Florida law required him to get a Management and Storage of Surface Water permit and a Wetlands Resource Management permit before he could develop the property. These permitting requirements were designed to protect Florida’s dwindling wetlands, and they allow the [...]

Special Permit: Homeowners Can’t Challenge Industrial Neighbor’s Mining Permit

Tuesday, July 09, 2013

Facts: A group of landowners challenged a permit that allowed a neighbor to develop a sand and gravel mining operation on its riverbank property. Two of the complainants, John D. Mitchell and Sally Jane Raines Kizer, own land along the Rappahannock River in Caroline County, Virginia. Mitchell uses his property for hunting and fishing, and Kizer [...]

Zoning: Zoning Statute Of Repose Governs Redevelopment Settlement Agreement

Tuesday, July 09, 2013

Facts: In 2007, Dewey Beach Enterprises, Inc. (DBE) applied for a building permit to redevelop three parcels in the center of the Town of Dewey Beach, Delaware. The town Building Inspector and Town Solicitor denied the application because DBE’s redevelopment plan did not comply with all of the zoning requirements. DBE appealed to the Board [...]

Environmental: BLM Must Consider Reduced-Grazing Alternatives, NEPA Says

Tuesday, July 09, 2013

Facts: In 2001, President Clinton designated an area in north-central Montana as the Upper Missouri River Breaks National Monument (Breaks Monument). The area is one of "unparalleled scenic beauty, great geological and biological import, and special historical significance." It is also an area used to graze livestock. The Bureau of Land Management [...]


Land Use Law Report, Volume 41, Number 6, June 2013


Texass Rolling Easement Doctrine May Constitute Fourth Amendment Seizure

Wednesday, June 05, 2013

Background: In 1958, the Texas Supreme Court ruled that the state owned only the coastal land seaward of the mean high tide, or the “wet beach.” Luttes v. State, 324 S.W.2d 167, 187 (Tex. 1958). In response, the Texas legislature passed the Open Beaches Act (the Act) in 1959, which gives the public unrestricted access to “the larger area extending [...]

Congressional Intent Behind Land Patent Essential For Easement Actions

Wednesday, June 05, 2013

Facts: Before 1876, the federal government owned property in what is now Mendocino County, California. Between 1876 and 1929, it deeded contiguous parcels by patent to various owners. Those parcels (the Burch property) are now owned by the RMB Revocable Family Trust; the trustees are defendants Roger Burch and Michele Burch. In 1932, the federal [...]

Condemnation Need Not Have A Proper Motive, So Long As It Has A Proper Purpose

Wednesday, June 05, 2013

Facts: In 1995, Donald E. Sable II bought property in the City of Nichols Hill, Oklahoma (the City). The property occupied approximately two city blocks and was immediately north of a City water treatment plant. In 1997, the City sought to use a 33-foot-by-290-foot strip of land (the Strip) to expand its facility. The Strip was located between [...]

Quiet Title Act Statute Of Limitations Sets Hard Deadline

Wednesday, June 05, 2013

Facts: The Yankton Sioux Tribe (the Tribe) challenged a 1944 condemnation by filing a motion for relief from judgment pursuant to Rule 60(b)(1). The U.S. District Court for the District of South Dakota, Southern Division, disallowed the motion as time-barred. The court reached this result even though it concluded that the federal [...]

Clean Water Permit For Small Area Can Trigger Large Scale Environmental Assessment

Wednesday, June 05, 2013

            Facts: 10,000 West LLC and Pulte Home Corporation (the developers) sought to develop a 60,000 resident development called Festival Ranch on 10,105 acres on currently undeveloped desert near the White Tank Mountains and Hassayampa River floodplain in Maricopa County, Arizona.

Analyze Rails-to-Trails Takings Claims On Case By Case Basis

Wednesday, June 05, 2013

Facts: In 1886, the federal government granted a right-of-way for a railroad corridor to a railroad company, pursuant to 43 U.S.C. §§ 934-939 (the Act). Plaintiff Ellamae Phillips Co. (Phillips) now owns the property crossed by that railroad corridor, near Aspen, Colorado. That property was conveyed by federal patent deed to a private party in 1923 and [...]


Land Use Law Report, Volume 41, Number 5, May 2013


Eminent Domain: Buyer Aware Of Adverse Interest Can’t Be Innocent Purchaser

Monday, May 13, 2013

Facts: In 2003, the City of Edinburg, Texas condemned land in Hidalgo County to build a drainage ditch. The special commissioners awarded the owner, Herschel White, $207,249 in just compensation. In their report, the special commissioners characterized the interest as a "right-of-way" but also incorporated by reference the City’s original petition [...]

Condemnation: Indiana Property Owners Entitled To Jury Trial To Determine Just Compensation

Monday, May 13, 2013

Facts: In 2002, the City of Fort Wayne, Indiana condemned a water and sewer system owned by Aqua Indiana, Utility Center, Inc. (Aqua Indiana). In 2004, the City’s Board of Public Works assessed damages of $14.76 million pursuant to an Indiana eminent domain statute for cities and towns. Aqua Indiana challenged the assessment, and though it [...]

Utilities/Energy: Threat To Remove Natural Gas Lines Gave Rise To Federal Jurisdiction

Monday, May 13, 2013

Facts: Laclede Gas Company (Laclede) provides natural gas service to the St. Louis area of Missouri. It shares non-exclusive easements with St. Charles County, Missouri; Laclede maintains gas lines within the easements that run along two roads in the county. In 2007, the County asked Laclede to relocate those gas lines so that it could complete [...]

Zoning: Elementary School Can Build Four-Acre Solar Energy Field

Monday, May 13, 2013

Facts: The Northampton Area School District owns 19 acres of land in Lehigh Township, Pennsylvania, and it wanted to install a solar energy field, consisting of 7,000 solar panels, on four acres of that land to help power an elementary school. The School District applied to the Lehigh Township Zoning Hearing Board (ZHB) for approval to install [...]


Land Use Law Report, Volume 41, Number 4, April 2013


Resource Management: Mineral Leasing Act Requires Only The Decision To Issue Lease--Not The Actual Lease -- Within 60 Days, Says Trial Court

Tuesday, April 30, 2013

Facts: Eight energy companies sought to force the Bureau of Land Management (BLM) to issue 118 pending oil and gas leases that the energy companies had paid for. Under the Mineral Leasing Act, energy companies can bid on oil and gas leases. The BLM then sells the leases to the high bidders. The Mineral Leasing Act requires the BLM to issue the leases &ldquo [...]

Nuisance: Per Balancing Test, Electromagnetic Fields Are Not A Nuisance

Tuesday, April 30, 2013

Facts: Homeowners in the City of Kirkland, Washington sued Puget Sound Energy, Inc. (PSE) over the electromagnetic fields emanating from an electrical substation. PSE built the original substation in 1960, and its single transformer supplied power to the homeowners’ neighborhood. Then, to meet growing demand, PSE sought to replace the original substation [...]

Inverse Condemnation: Right Of Reentry Is A Compensable Property Interest

Tuesday, April 30, 2013

Facts: El Dorado Land Company (El Dorado) sued the City of McKinney, Texas for inverse condemnation after the city built a library on property that El Dorado alleged it had a reversionary interest in. In 1999, El Dorado sold the property to the city by special warranty deed. The deed stated that the conveyance was “subject to the requirement [...]

Environment: NJ Environmental Law Doesn’t Authorize Warrantless Property Inspections

Tuesday, April 30, 2013

Facts: Robert and Michelle Huber sued the New Jersey Department of Environmental Protection (DEP), alleging that a DEP inspector improperly entered their property without a warrant, in violation of the Fourth Amendment and the New Jersey Constitution. The DEP inspector had been investigating the Hubers’ alleged violations [...]


Land Use Law Report, Volume 41, Number 3, March 2013


Preemption: Manufactured Housing Act Doesn’t Preempt Aesthetic Ordinances

Monday, March 18, 2013

Facts: Roger Schanzenbach sued the Town of Opal, Wyoming after the town rejected his plan to install four older manufactured homes within town limits. In November 2008, Schanzenbach applied for building permits to install the homes on four consecutive lots. The town granted the permits and gave Schanzenbach until February 14, 2010 to install [...]

Historic Preservation: Court Gives Go-Ahead To Demolish Historic Buildings Near Canadian Border

Monday, March 18, 2013

Facts: The Campaign for Buffalo History, Architecture and Culture, Inc. (the Campaign) challenged a plan to demolish several historic properties in Buffalo, New York. The properties were owned by the Buffalo and Fort Erie Public Bridge Authority (Bridge Authority), a "product of a compact between New York and Canada, approved by Congress.& [...]

Takings: Navigation Channel Closure Was Not A Taking

Monday, March 18, 2013

Facts: Lone Star Industries, Inc. (Lone Star) sued the United States after the government closed the Mississippi River Gulf Outlet (MRGO). Lone Star alleged that this closure effected both a physical and regulatory taking. The MRGO, which the government completed in the early 1960s, was a 76-mile navigation channel connecting New Orleans to [...]

Preemption: Texas Clean Air Act Preempts City Ordinance That “Nullifies” State Permits

Monday, March 18, 2013

Facts: A Texas company, Southern Crushed Concrete, LLC (Southern Crushed), sued the City of Houston over an ordinance that restricted Southern Crushed from building a concrete-crushing facility. Southern Crushed alleged that the city ordinance was preempted by the Texas Clean Air Act (CAA), which prohibits local ordinances from "mak[ing [...]


Land Use Law Report, Volume 41, Number 2, February 2013


Historic Preservation: Property Owners Must Appeal Approval Conditions Before Accepting Benefits Of Approval

Wednesday, February 13, 2013

In 2010, the owners applied to the Commission for a certificate of appropriateness to allow them to keep four granite pillars that they had installed during the renovation, but which were not part of the plans that the Commission had originally approved. The Commission allowed the owners to apply for the certificate after they had already installed the pillars, and the Commission granted the application [...]

Regulatory Takings: Relevant Parcel Under Penn Central Determined By Owners' Economic Use

Wednesday, February 13, 2013

Facts: Between 1969 and 1974, Lost Tree Village Corporation (Lost Tree) bought nearly 2,750 acres of coastline property in Florida's mid-Atlantic coast. This land included much of John's Island, which contains some barrier islands and waterways. From 1969 until the 1990s, Lost Tree developed most of its John's Island property, creating an upscale residential community, complete with [...]

Zoning: Town Sign Ordinance Limiting Size And Paint Color Was Constitutional

Wednesday, February 13, 2013

Facts: In 2009, William Bowden painted the words "Screwed by the Town of Cary" on the front of his house using fluorescent orange paint. Bowden painted the message in response to the Town of Cary's unsatisfactory attempts to address water damage to Bowden's home, which Bowden alleged was caused by a municipal road-paving project. A passing motorist reported the message [...]

Subdivision: Manmade Structures Can Cause ‘Natural Hazards'

Wednesday, February 13, 2013

Facts: In 1929, the City of Ouray, Colorado, diverted Skyrocket Creek to protect against severe flooding from rain and spring runoff. The creek descended from nearby mountains nearly 8,000 feet at an 80 percent grade. The City's basic diversionary plan has not changed since 1929, and the diverted creek still floods following heavy rain or spring melt, and it still deposits debris [...]


Land Use Law Report, Volume 41, Number 1, January 2013


Takings: Supreme Court Rejects Flooding Exception To Temporary Takings Rule

Tuesday, January 15, 2013

Facts: The Arkansas Game and Fish Commission (Commission) sought compensation for damage to a hardwood oak forest caused by repeated controlled flooding authorized by the U.S. Army Corps of Engineers (Corps). The forest, part of the Dave Donaldson Black River Wildlife Management Area (Wildlife Area), is a wildlife and hunting preserve as well as a timber resource. It is 115 [...]

Takings: City's Drainage System Flood Could Be A Taking

Tuesday, January 15, 2013

Facts: In the 1950s, when developers built the Coronado Country Club on the west side of The City of El Paso, Texas, they filled the large natural arroyos (i.e., creeks) near the country club and built a diversion dam to reroute water from the old large arroyos to a smaller arroyo (Arroyo 8B). Over the next 50 years, as developers created new residential neighborhoods in the area, [...]

Nuisance: No Safe Harbor For Old Shooting Range

Tuesday, January 15, 2013

Facts: In 1962, Levi Wayne Kemp built a shooting range at the back of his property on Thorn Road in rural Marshall County, Indiana. At the time, there were no statewide or county laws governing shooting ranges. He expanded the shooting range in 1968, 1985, and 2006. By 2006, the county had enacted a comprehensive zoning ordinance that governed shooting ranges, and the state had enacted [...]

Takings: Separately-Platted Properties Have Their Own Investment-Backed Expectations

Tuesday, January 15, 2013

Facts: Galleon Bay Corporation (Galleon) owns 8.6 acres on No Name Key, one of the Florida Keys in Monroe County, Florida. In 1990, Galleon set out on what the court referred to as an "odyssey of disappointment" when it applied to plat its property for 42 single-family lots. After negotiating with the County, it agreed to reduce the number of platted lots to 14, well below [...]

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