Land Use Law Report
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Articles for the year 2014

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Total Result(s) Found: 48


Land Use Law Report, Volume 42, Number 12, December 2014


Environmental: Clean Air Act Does Not Preempt State Nuisance, Negligence Claims

Monday, December 15, 2014

Facts: Brown-Forman Corporation and Heaven Hill Distilleries, Inc. (together, Brown-Forman) operate whiskey distilleries in Kentucky. As part of the production process, the distilleries emit ethanol vapor into the atmosphere, which brings the emissions within the purview of the federal Clean Air Act. The distilleries' emissions did not exceed the [...]

Ordinances: Farm Protection Law Can't Shield Independent Compost Operation

Monday, December 15, 2014

Facts: Dubois Livestock, Inc. (Dubois) owns and operates a composting business in the Town of Arundel, Maine. At its facility, Dubois composts fish waste, cow and horse manure, and cow and horse bedding. Dubois does not generate any of this material itself; it processes material brought to the facility from elsewhere in Maine. When Dubois started [...]

Taking: NYC Railway Easement Broad Enough For Rails-To-Trails Conversion

Tuesday, December 16, 2014

Facts: New York City's "Highline" recreational trail transformed elevated railroad rights-of-way into a trail and park. Consolidated Rail Group (Conrail) owned an easement to use the corridor, which it and its predecessors did until the mid-1970s. After removing the stations and tracks from the corridors in the early 1980s, Conrail sought to use the corridor for other things, such [...]

Environmental/Ordinances: Washington Statute Preempts Ban On 'Class B' Biosolids

Tuesday, December 16, 2014

Facts: The Washington State Legislature created a biosolids program in 1992. (Biosolids are essentially sewage sludge.) The program's purpose was to recycle sewage waste by treating it and using it as a "beneficial commodity." This beneficial commodity could be applied to land for agriculture, silviculture, and landscaping. Under the program, there are four classes of biosolids [...]


Land Use Law Report, Volume 42, Number 11, November 2014


Surplus Equity In Foreclosed Home May Give Rise to Takings Claim

Wednesday, November 05, 2014

Facts: In 2006, Benjamin Coleman failed to pay his $133.88 property tax bill to the District of Columbia (District). Coleman is a veteran in his 70s who suffers from dementia. His son discovered the unpaid tax bill in 2008. By then, the District had placed a tax lien on Coleman's home and added $183.47 in penalties to the original bill.  [...]

Despite Overwhelming Evidence Of Grave Desecration, Defendant Gets New Trial

Wednesday, November 05, 2014

Facts: In 1923, the Crystal Block Coal & Coke Company leased land in Logan County, West Virginia, to establish a mining town for company employees. The mining town, Crystal Block Hollow, included a cemetery for company employees and their families. Crystal Block Hollow is now defunct, and Equitable Production Company (Equitable) planned [...]

Injunction Denial Was Not A License To Trespass

Wednesday, November 05, 2014

Paige L. Jansen-Nichols sued Colonial for trespass, nuisance, negligence, and negligence per se, alleging that Colonial had flown its helicopters too low over her home. She sought an interlocutory injunction to prevent Colonial from flying any helicopters low over her house until her lawsuit was resolved. A trial court held two evidentiary hearings and then denied her motion. [...]

'Good Neighbor' Acts In Bad Faith By Failing To Follow Through With Flood Fix

Wednesday, November 05, 2014

Facts: In 1990, Sherri Strong built a house in a residential development in Brandon, South Dakota. Her property abuts property owned by Atlas Hydraulics, Inc. (Atlas), which owns and operates a manufacturing plant on the property. In 1998, Atlas built an addition to its existing plant on the side of the property that abuts Strong's property [...]


Land Use Law Report, Volume 42, Number 10, October 2014


Statute Prohibiting Taking For 'Private Enterprise' Is Stricter Than Constitution

Wednesday, October 08, 2014

Facts: Fortune Development, L.P. (Fortune Development) plans to build a residential subdivision in Bern Township, near Reading, Pennsylvania. The planned subdivision will be located along the west bank of the Schuylkill River. The land lacks water or sewer access, so Fortune Development worked with the City of Reading’s municipal water authority [...]

No Legal Right To Physical Entry Is Required To Show 'Injury In Fact'

Wednesday, October 08, 2014

Facts: In 2009, environmental and historical preservation groups succeeded in obtaining Blair Mountain Battlefield’s listing in the National Register of Historic Places. Blair Mountain, in Logan County, West Virginia, is the site of the largest armed labor conflict in American history. In 1921, approximately 5,000 West Virginia coal miners squared off against about 3,000 [...]

Fed, Not California, Controls How It Cleans Up Radioactive Waste

Wednesday, October 08, 2014

Facts: The Santa Susana Field Laboratory is located on 2,850 "seriously contaminated" acres near Los Angeles. Beginning in the 1940s, the federal government tested rockets, nuclear reactors, and other nuclear applications at the lab. One of the nuclear reactors had a partial meltdown in 1959, during which radioactive gases were emitted into the atmosphere for weeks. Various other [...]

When Govt. Seeks Enforcement Injunction, Irreparable Harm Is Presumed

Wednesday, October 08, 2014

Facts: Boone Creek Properties, Inc. (Boone Creek) obtained a conditional use permit in 2000 from the Lexington-Fayette Urban County Government Board of Adjustment (the Board) in Kentucky. The permit allowed Boone Creek to operate a private fishing club on its property, which was zoned residential-agricultural and thus did not allow private [...]


Land Use Law Report, Volume 42, Number 9, September 2014


After Threats to Town Board, Board Reasonably Delays Wind Turbine Permits

Thursday, September 04, 2014

Facts: Prelude LLC planned to build a wind farm on a property in the Town of Glenmore, Wisconsin. In 2009, Prelude entered into an agreement with the Wisconsin Public Service Corporation (WPS), a major public utility, to sell energy generated from the wind turbines to WPS at a favorable rates for 20 years. However, for the agreement to go into effect, Prelude had [...]

No Taking When City Demolishes Building While Permit Applications Were Pending

Thursday, September 04, 2014

Facts: In 1998, the City of Cleveland, Ohio, issued a notice of violation of housing ordinances for a commercial property owned by a church. After executing a judicial search warrant to inspect the property for hazardous conditions, the City served the church with a notice of condemnation. The church did not appeal the notice of condemnation. But the City also [...]

Annexation that Shuts Down Fireworks Business Is Not a Regulatory Taking

Thursday, September 04, 2014

Facts: In 2003, Pearson’s Fireworks (Pearson’s) leased land outside the city limits of the City of Hattiesburg, Mississippi. Pearson’s sold fireworks on the land during the month before the Fourth of July and during the weeks before New Year’s Eve. In 2006, the property’s owner, who had leased the land to Pearson&rsquo [...]

Owner Can Replace Prohibited 4' x 4' Political Lawn Sign with a "Blanket" of Smaller Signs

Thursday, September 04, 2014

Facts: The City of Garfield Heights, Ohio, regulates the design and placement of signs within the city. It permits more political signs than non-political signs. The City allows a single non-political sign in a window or lawn, no larger than 6 square feet, but requires the sign to be removed within 48 hours after the sign fulfills its purpose. For example, a homeowner [...]


Land Use Law Report, Volume 42, Number 8, August 2014


Supreme Court Limits Recovery for State Hazardous Waste Cases

Thursday, August 14, 2014

Facts: An electronic plant outside Asheville, North Carolina stored two hazardous chemicals during its 34-year operation. In 1987, CTS Corporation (CTS), the plant’s owner, sold its property to a buyer, promising that the site was environmentally sound. The buyer eventually split up the property and sold the pieces to multiple people who sued CTS in 2011, [...]

Reasonable Wind Turbine Restriction Preempted by Statute that Limits Unreasonable Wind Turbine Restrictions

Thursday, August 14, 2014

Facts: The Bayshore Regional Sewerage Authority (Authority) in New Jersey operates a water treatment plant in the Borough of Union Beach, New Jersey. To help power this water treatment plant, the Authority planned to build a wind turbine. Because the proposed turbine is within the Coastal Management Zone, the Authority had to get a Coastal Area [...]

No Taking When State Repeatedly and Publicly Says It Owns Private Land

Thursday, August 14, 2014

Facts: During the 1950s, 1960s and 1970s, the Porretto family acquired 27 acres of land between the Galveston Seawall and the Gulf of Mexico. The seawall is designed to protect the City of Galveston, Texas, from flooding caused by hurricanes. Nevertheless, some of the Porrettos’ land is now submerged, and once land is submerged, it belongs to the state. However [...]

New York Towns Can Ban Hydrofracking

Thursday, August 14, 2014

Facts: The Marcellus Shale formation lies beneath vast parts of New York State, and it contains natural gas that can be extracted using hydraulic fracturing or "hydrofracking." In 2006, Norse Energy Corp. USA (Norse) began buying oil and gas leases in the Town of Dryden, New York, for the purpose of extracting natural gas from the Marcellus Shale [...]


Land Use Law Report, Volume 42, Number 7, July 2014


Environmental: Immunosuppressed Plaintiff Permitted To Challenge Proposed Biorefinery

Wednesday, July 02, 2014

Facts: Plaintiff Larry Klein lives in Michigan's Upper Peninsula, where he suffers from a compromised immune system. Soon, a facility that transforms wood chips into ethanol will open near Klein's home. Klein sued the U.S. Department of Energy (DOE), which both approved the proposed "biorefinery" and awarded a $100 million grant to Frontier Renewable Resources, LLC ( [...]

Environmental: Power Company's ‘Cooling Pond' Protected By Clean Water Act

Wednesday, July 02, 2014

Facts: Several conservation groups sued Duke Energy Progress, Inc. (Duke Energy) after the power company discharged pollutants from its coal ash lagoons into Sutton Lake, near coastal North Carolina. North Carolina authorized the formation of Sutton Lake in 1971, so that Duke Energy's predecessor could dam Catfish Creek and use the resulting lake for cooling. Sutton Lake has always [...]

Agriculture / Nuisance: Right To Farm Act May Not Shield Farm With Inadequate Drainage System

Wednesday, July 02, 2014

Facts: In January 2010, an $8-million California home flooded, and the water brought with it mud, twigs, and lemons. The property was downslope from a 4-acre lemon grove planted in the early 1980s. Although the lemon grove was owned by the Fowler Revocable Living Trust (Fowler), it was managed by a professional citrus grove company. In the 1990s, that company installed a drainage [...]

Zoning: CT Town Ordinance Appeals Must Allege Error--And Be Submitted Within 30 Days

Wednesday, July 02, 2014

Facts: The Zoning Board of Appeals of the Town of Darien, Connecticut (the Board) issued zoning and building permits to James and Janeen Eckert in March 2010. Notice of these permits appeared in the local newspaper. The Eckerts' property abuts Long Island Sound, and the permits allowed the Eckerts to renovate an existing home, build an addition, and build a new garage. In September [...]


Land Use Law Report, Volume 42, Number 6, June 2014


Homeowner Must Show Sewer Backup Was The Ordinary Consequence Of City's Actions

Thursday, June 12, 2014

Facts: In 2005, Sharon Dunn heard a "loud roar" in her house and then saw sewer water flow out of her toilets and bathroom fixtures and drip into her living room. Outside her home, the City of Milwaukie, Oregon, was injecting highly pressurized water into the sewer lines in order to clean them, a process called "hydrocleaning." When Dunn confronted the city worker, the worker [...]

Scope Of State Agency's Denial Determines Loss Of Property Right In Regulatory Taking

Thursday, June 12, 2014

Facts: Gary Bailey planned to develop property along the Sunny Beach section of Lake of the Woods in Lake of the Woods County, Minnesota. In anticipation of that development, he built a road near the shoreline, but he did not seek or obtain permission to build the road. In 1998, he obtained permission to plat 1400 feet of shoreline property into fourteen separate lots that were bordered [...]

Delay In Bad Faith Can Support A Takings Claim

Thursday, June 12, 2014

Facts: While Steven M. Sherman was in the process of buying 400 acres of land in the Town of Chester, New York, he applied for subdivision approval. His original plan for the "MareBrook" development included 385 housing units, as well as numerous recreational facilities, including "an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant and a golf [...]

Alligator Infestation Is Not A Nuisance

Thursday, June 12, 2014

Facts: In 2003, Tom and Consandra Christmas bought 35 acres of farmland next to an "alligator-infested, waste-disposal site" owned by Exxon Mobil Corp. The landowners claimed not to have known the extent of the alligator infestation until after they bought the property and began living there, in 2007. They believed that alligators destroyed two calves and a dog. And [...]


Land Use Law Report, Volume 42, Number 5, May 2014


Telecommunications: Telecomm Merger Didn't End Suit Over New Cell Tower

Thursday, May 08, 2014

Facts: By 2009, a significant gap in the wireless coverage provided by T-Mobile and MetroPCS was identified next to I-93 in Milton, Massachusetts. Green Mountain Realty Corp. (Green Mountain) sought to fill that gap by building a 140-foot cell phone tower and then leasing space on that tower to T-Mobile and MetroPCS. Both telecommunications providers were interested [...]

Environmental: EPA Reasonably Decided Not To Create New Carbon Monoxide Air Quality Standards

Thursday, May 08, 2014

Facts: The Environmental Protection Agency (EPA) must set primary and secondary national air quality standards to regulate the levels of six common air pollutants, including carbon monoxide. Primary standards are set to protect public health, and secondary standards are set to protect public "welfare," which includes "the welfare of animals, the [...]

Environmental: Court Denies Coal Ash Settlement That Included Option To Extend Compliance Deadline

Thursday, May 08, 2014

Facts: The Environmental Protection Agency (EPA) failed to review coal ash regulations within the three-year time line required by the Resource Conservation and Recovery Act (RCRA). Environmental groups, led by Appalachian Voices, successfully sued the EPA over this failure to review the regulations. The District Court for the District [...]

Eminent Domain: Though Not 'Landlocked,' Arizona Landowner May Recover For Loss Of Street Access

Thursday, May 08, 2014

Facts: The City of Phoenix installed railroad tracks on one side of property owned by John Garretson. These railroad tracks cut off Garretson’s access to Jefferson Street. Although Garretson lost the use of the two driveways on Jefferson Street, he maintained access to his property via another street. The City filed an eminent domain action [...]


Land Use Law Report, Volume 42, Number 4, April 2014


Zoning: Zoning Denials Cannot Support Substantive Due Process Claims

Friday, April 11, 2014

Facts: Flagship Lake County Development Number 5, LLC (Flagship) sought to rezone a 245-acre property so that it could build facilities for waste disposal, waste management, methane gas recovery, and recycling. It also planned to build wetlands habitat preservation areas there. The City of Mascotte, Florida denied Flagship’s application after [...]

Environmental: Comments On An EIS Must Timely State The Significance Of The Alleged Mistake

Friday, April 11, 2014

Facts: Karst Environmental Education and Protection, Inc. (Karst Environmental) challenged a decision by the Federal Highway Administration (Highway Administration) to build a connector road linking I-65 and U.S. 31 in Kentucky. The proposed route would cut across one of the country’s "best examples of karst topography." Karst topography [...]

Use Permits: City Improperly Revoked CUP, Didn’t Allege Specific Misrepresentations

Friday, April 11, 2014

Facts: In 2010, Oneida Seven Generations Corp. (Oneida) began discussing its plan to build a waste-to-energy facility in the City of Green Bay, Wisconsin. The planned facility would use pyrolysis to convert solid waste and other waste materials into other forms of energy by "heating them in a sealed chamber with high efficiency, low emissions mono [...]

Eminent Domain: City Owes $4.25 Million For Delayed Condemnations In Road Project

Friday, April 11, 2014

Facts: In 2002, the City of North Las Vegas began planning and building a super-arterial roadway to relieve regional traffic congestion from Interstate 15. Part of the plan was to widen North 5th Street by 150 feet. To accommodate this change, the City changed its Master Plan of Streets and Highways to provide that all new development applications be conditioned [...]


Land Use Law Report, Volume 42, Number 3, March 2014


Environmental/Use Permit: Rock Crushing Is Not An Agricultural Process

Tuesday, March 11, 2014

Facts: Ellensburg Cement Products, Inc. (Ellensburg) objected to a conditional use permit (CUP) application granted to Homer L. Gibson by Kittitas County, Washington. Gibson owned 84 acres of property in the County. All 84 acres were zoned agricultural-20 (A-20). The previous owner had received a CUP for gravel extraction for 13.4 acres of that [...]

Takings: Individuals Can't Enforce Federal Land Acquisition Law.

Tuesday, March 11, 2014

Facts: To widen U.S. Route 17, the City of Chesapeake, Virginia took property owned by Clear Sky Car Wash LLC (Clear Sky) under its "quick take" procedure. Negotiations to purchase the parcel fell through, which Clear Sky claimed was a result of the City’s lowball offers. Clear Sky also alleged that the City negotiated with it in bad faith [...]

Zoning: State Medical Marijuana Law Preempts Local Ban

Tuesday, March 11, 2014

Facts: The Michigan Medical Marihuana Act (MMMA) [sic] protects medical marijuana users, called "qualifying patients," who meet certain criteria from criminal or civil penalties of any kind. Plaintiff John Ter Beek qualified as such a patient. He planned to grow, possess, and use medical marijuana in his Wyoming, Michigan home in compliance with the MMMA. However [...]

Environmental: Additional Discovery Permitted In CERCLA Case, Defendant May Have Contracted With Haulers

Tuesday, March 11, 2014

Facts: The South Dayton Dump and Landfill Site is contaminated with many hazardous substances, including arsenic, mercury, and lead. Hobart Corporation, Kelsey-Hayes Company, and NCR Corporation were identified as "potentially responsible parties" under the federal Comprehensive Environmental Response, Compensation and Liability [...]


Land Use Law Report, Volume 42, Number 2, February 2014


Zoning: Neighborhood’s Generalized Grievances Weren’t Enough To Challenge Cruise Ship

Monday, February 10, 2014

Facts: The Fantasy, an 855-foot-long cruise ship that rises more than 60 feet above the water line, uses the Union Pier Terminal in Charleston, South Carolina as its home port. The Union Pier Terminal is located in Charleston’s Old and Historic District, and four citizens’ groups sued the Fantasy’s owner, Carnival Corporation (Carnival), alleging [...]

Historical Preservation: More Intensive Use Allowed Under ‘Flexibility Of Design’ Zoning Reg

Monday, February 10, 2014

Facts: In 2013, the Zoning Commission for the District of Columbia (Commission) approved a planned unit development (PUD) on 22 acres of the Southwest Waterfront. The petitioners in this case challenged the decision to rezone just one parcel. The petitioners live in historic Tiber Island, a large townhome cooperative across the street from a parcel that the developer [...]

Zoning: California Clarifies Spot Zoning Rule For ‘Permissive’ Spots

Monday, February 10, 2014

Facts: The Roman Catholic Diocese of Orange (the Diocese) and Kisco Senior Living, LLC planned to develop senior residential housing on land owned by the Diocese in North Tustin, California. In response, the Orange County Board of Supervisors (the Board) created a new zoning definition for senior residential housing [...]

Environmental: Missing Footnotes Undermine Public Confidence In BLM

Monday, February 10, 2014

Facts: The Bureau of Land Management (BLM) issued an Environmental Assessment (EA) evaluating the impact of grazing decisions on the sage grouse and pygmy rabbit. The EA concluded that the grazing decisions would have minimal impact on both animal populations. However, when the BLM wrote its EA, it did not include footnotes to the scientific studies that it used [...]


Land Use Law Report, Volume 42, Number 1, January 2014


Valuation: Landowner May Recover Greater Loss Than Market Will Bear For Lost Trees

Sunday, January 12, 2014

Facts: In 1991, plaintiff George E. Morabit bought 53 acres in North Kingstown, Rhode Island. The property abutted property owned by defendant Dennis Hoag. Most of Morabit’s property was undeveloped woodland, and a stone wall marked the boundary between his land and Hoag’s. In the early 2000s, Morabit discovered that a large portion [...]

Zoning: In Minnesota, Conditional Use Permit Doesn’t Extinguish Nonconforming Use

Sunday, January 12, 2014

Facts: Lorraine White, trustee for the Lorraine M. White Trust, owns Wapiti Park Campgrounds, Inc. (collectively, Wapiti Park), which operates the Wapiti Park Campground in Elk River, Minnesota. In the 1980s, the City of Elk River enacted a zoning ordinance that established conditional uses requiring a permit, [...]

Inverse Condemnation: Pumping Polluted Water Onto Private Property Can Be A Taking

Sunday, January 12, 2014

Facts: The Alabama Department of Transportation (ALDOT) used trichloroethylene (TCE) from the 1960s until the 1980s. ALDOT poured the spent TCE into the sewer system, and the TCE found its way into the groundwater. One particular plume of groundwater in Montgomery, the Coliseum Boulevard Plume, is contaminated with ALDOT’s spent TCE. ALDOT had a duty to remediate [...]

Takings: Fear Of Future Flooding Can’t Support A Physical Takings Claim

Sunday, January 12, 2014

Facts: The U.S. Army Corps of Engineers (Corps) built the Prado Dam on the Santa Ana River near Corona, California, in 1941. When the Corps built the dam, it acquired flowage easements over properties in the flood control basin, up to an elevation of 556 feet above sea level. Plaintiffs Stueve Bros. Farms, LLC and Millcreek Farming Associates, LLC [...]

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