Land Use Law Report
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Articles for the year 2015

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Total Result(s) Found: 48


Land Use Law Report, Volume 43, Number 12, December 2015


Special Permits: Drug Treatment Center Could Not Operate As Functional Equivalent Of A Family

Wednesday, December 02, 2015

Facts: Safe Harbor Retreat LLC (Safe Harbor) opened in the Town of East Hampton, New York as an "executive retreat for individuals recovering from alcohol and drug addiction." Safe Harbor was located in a residential area, and the East Hampton building inspector initially granted Safe Harbor a "reasonable accommodation to operate in a residential [...]

Environmental: Mitigation Bank Lacked Standing To Challenge Award Of Credits To Another Bank

Wednesday, December 02, 2015

Facts: Scott W. Walther bought developable land in the Mat-Su Borough of Alaska. Instead of developing his land, Walther formed and became owner of Pioneer Reserve L.L.C. (Pioneer). Then, at the alleged encouragement of the U.S. Army Corps of Engineers (Corps), Pioneer turned the land into a wetland mitigation [...]

Discrimination -- Injunctive Relief: Appeal, Not Suit, Was Correct Response To Retaliatory Stop-Order

Wednesday, December 02, 2015

Facts: The lakefront property Gerald Marshall bought from the Town of Dexter, Maine had previously been a public school. Marshall planned to develop the property, and the Town initially supported those development efforts. The property contained two permanent buildings and five portable classroom structures, and the Town’s Code Enforcement [...]

Undesirable Land Use: Neighbor Had De Facto-Party Standing To Challenge Solar Panel Installation

Wednesday, December 02, 2015

Facts: The Vermont Public Service Board granted a certificate of public good for the installation of a photovoltaic net metering system, meaning a field of pole-mounted solar panels. A neighboring property owner, Mary McGuire, challenged the certificate. After the Board awarded the certificate to its recipient, Beach Properties, Inc. d/ [...]


Land Use Law Report, Volume 43, Number 11, November 2015


Undesirable Land Use: Growing Weeds Is Not A First Amendment 'Expressive Act'

Thursday, November 19, 2015

Facts: Discount Inn, Inc. (Discount Inn), a company that owns some empty lots in the City of Chicago, violated two City ordinances: a weed ordinance and a fence ordinance. The weed ordinance requires property owners to keep all of the "weeds" on their properties to an average height of ten inches or less. Violating the weed ordinance results in [...]

Zoning: Landowner Must Pay $344K Permit Fine Under Retroactive Statute

Thursday, November 19, 2015

Facts: Shortly after Edward C. Furlong, III began renovating his property in the Town of Bartlett, New Hampshire, the Town sent him a cease and desist notice. The notice informed Furlong that, because his renovations violated the Town’s zoning ordinance, he needed to procure a building permit. Furlong did not appeal the decision and instead [...]

Takings: Takings Claim Unripe Where Lessee Failed To Test Govt.'s Discretion

Thursday, November 19, 2015

Facts: Wyoming is a mineral-rich state that contains oil and gas reserves as well as trona reserves. (Trona is a "sodium carbonate compound that is processed into soda ash or baking soda.)" Drilling for oil and gas poses safety risks for trona miners. Thus, in an area of federal public land known as the "mechanically mineable trona area" (MMTA), a conflict developed between the [...]

Zoning / Preemption: School Construction Project Required A Building Permit

Thursday, November 19, 2015

Facts: Community High School District No. 155 (the District) in the City of Crystal Lake, Illinois replaced the bleachers in a high school football stadium, increasing the bleachers’ height and moving the bleachers closer to the residential properties that border the school’s property. Under the City’s zoning and land use ordinances [...]


Land Use Law Report, Volume 43, Number 10, October 2015


Historic Preservation: Last Bicentennial Mural May Be Saved As A 'Historic Property'

Friday, October 09, 2015

Facts: In 1976, numerous works of public art were created to memorialize the United States’ bicentennial. One such work is the "Bicentennial Freedom Mural" painted on the spillway of the Prado Dam in Corona, California. The mural was designed and painted by high school students, and it is one of the last remaining public works associated with the Bicentennial. It is also [...]

Takings: Stormwater Charge Is A 'Fee' Because It Specially Benefits Those Who Pay

Friday, October 09, 2015

The plaintiffs, owners of developed property in the County, refused to pay the charge because they believed that the stormwater management program provided them with no particular benefits that weren’t shared by the County’s general population. The plaintiffs argued that they paid for a program that, by its terms, "benefits all residents of Athens-Clarke County." Therefore, the plaintiffs [...]

Takings:Rent Control Ordinance Could Not Be Challenged As A Taking

Friday, October 09, 2015

Facts: A California mobile home park owner, Rancho de Calistoga (Rancho), challenged a city rent control ordinance that limited Rancho’s ability to raise rents by more than 6 percent of base rent or the percent change in the Consumer Price Index, whichever was lower. The City of Calistoga, California adopted the ordinance in question in 2007 [...]

Conditional Use Permit: Construction Noise/Traffic At Natural Gas Well Won't Conflict With 'Quiet' Zoning

Friday, October 09, 2015

Facts: Inflection Energy, LLC (Inflection Energy), an energy company that wants to build a natural gas well on land in Fairfield Township, Pennsylvania, applied for a conditional use permit to build the natural gas well on land zoned for residential or agricultural use. The Township’s zoning ordinance does not specifically authorize natural [...]


Land Use Law Report, Volume 43, Number 9, September 2015


Preemption/Flooding: Federal Flood Statute Doesn't Preempt Negligence Claims Against Flood Determiners

Thursday, September 03, 2015

Facts: Matthew and Carolynn Fonder bought property in South Dakota, near the Missouri River. As required by the National Flood Insurance Act (NFIA), the Fonders’ lender, Wells Fargo Bank, N.A., selected a third-party flood determiner to determine whether the Fonders’ property was in a Special Flood Hazard Area (SFHA [...]

Agricultural: Buyer Wins $230,000 Because Sellers Didn't Disclose Property's Wetlands Violations

Thursday, September 03, 2015

Facts: Plaintiff Favero Farms, LC bought 20 acres of Utah farmland from H. Dan and Tami Baugh. The parties’ sales contract included a warranty against encumbrances and a warranty to deliver the property "in generally accepted agricultural condition." The Baughs did not disclose any encumbrances on the property, and Favero [...]

Undesirable Land Uses/Mining: Alaska Preempts Salmon-Protection Initiative To Prevent Copper Mine

Thursday, September 03, 2015

Facts: The Lake and Peninsula Borough (Borough) sits atop the "world’s largest discovery of undeveloped copper ore." The State of Alaska owns the land and Pebble Limited Partnership (Pebble) owns the mineral rights to the copper ore. The Borough is also home to the world’s largest wild sockeye salmon fishery, and, in [...]

Environmental/Historic Preservation: Tribe Can Challenge Agency's Decision To Renew Geothermal Leases

Thursday, September 03, 2015

Facts: California’s Medicine Lake Highlands are the ancestral home of the Pit River Tribe and contain numerous spiritual and cultural sites. The Tribe still uses the area for spiritual and traditional purposes that depend on the land’s physical, environmental, and visual integrity, as well as quiet. The Medicine Lake Highlands are managed by the [...]


Land Use Law Report, Volume 43, Number 8, August 2015


Regulatory Takings: Bad Advice, Not Takings, Caused Rental Income Loss

Wednesday, August 12, 2015

Facts: In 2003, the Nevada Department of Transportation (NDOT) began a six-phase project to improve several highways called Project Neon. NDOT estimated that the project would take 20 to 25 years to complete and would use federal highway funds. Because the project would use federal highway funds, NDOT had to comply with the National Environmental Policy Act (NEPA [...]

Zoning: Local Zoning Rules Don't Apply To Regional Utility

Wednesday, August 12, 2015

Facts: New Mexico’s legislature created the Eastern New Mexico Water Utility Authority (the WUA) in 1978 to "develop and construct a water delivery system" to serve the municipalities in eastern New Mexico. One of those municipalities is the Village of Logan. The WUA and the Village clashed when the WUA attempted to build a water intake structure [...]

Environmental: Town Will Pay For Revoking Sewer Connection Without Hearing

Wednesday, August 12, 2015

Facts: Acquest Wehrle, LLC (Acquest) owns property in the Town of Amherst, New York that it wants to develop into an office park. One obstacle to the development was a lack of sewer access. Acquest’s property was located in a designated wetland, and, according to a deal struck with the U.S. Environmental Protection Agency (EPA) during the [...]

Undesirable Land Use: Landfill Ban Didn't Violate Dormant Commerce Clause

Wednesday, August 12, 2015

Facts: Before 2009, operating a waste disposal landfill in Elbert County, Georgia required a special use permit. At the end of 2009, the County began to amend its ordinances to exempt "waste to energy" solid waste facilities from the special use permit requirement. Shortly before this amendment, Sweet City Landfill, LLC (SCL) applied for a special [...]


Land Use Law Report, Volume 43, Number 7, July 2015


Regulatory Takings: Vested Property Right In Development Plan Entitles Owners To Compensation

Tuesday, July 07, 2015

Facts: Darryl Keith Wayne is the trustee of the Darryl Keith Wayne Revocable Trust (the Trust) and the majority owner of Park Creek, LLC (the LLC). The Trust owns 90 acres of land in Cabarrus County, North Carolina (the County). The LLC owns 160 acres that are adjacent to the Trust’s land. In 1997, the Cabarrus [...]

Regulatory Takings: Elimination of Economic Value Is a Regulatory Taking, Even If Other Value Remains

Tuesday, July 07, 2015

Facts: In 2002, Lost Tree Village Corporation (Lost Tree) sought to develop a five-acre parcel of land on a barrier island off the mid-Atlantic coast of Florida. Lost Tree had already developed all of the land around the parcel, known as Plat 57, and Lost Tree had presumably not developed Plat 57 because it consisted of "submerged lands and wetlands that have been [...]

Undesirable Land Use: Chicago May Have Violated RLUIPA By Denying License To House Homeless

Tuesday, July 07, 2015

Facts: In 2005, the World Outreach Conference Center (World Outreach), a religious organization, bought an old YMCA in an impoverished area of Chicago. The YMCA had used its facility as both a gym and as temporary housing for otherwise homeless people. The building’s use for single-room occupancy (SRO) is no longer a permitted use under the City of [...]

Zoning: Officials With 'Substantive Leadership' In Neighboring Property Shouldn't Have Voted On Zoning

Tuesday, July 07, 2015

Facts: Richard Grabowsky, a concerned citizen of the Township of Montclair, New Jersey the Township), sued the Township and developers after the Township adopted a zoning ordinance that would allow the developers to build a five-story assisted living facility next to the Unitarian Universalist Congregation Church of Montclair (Unitarian Church). [...]


Land Use Law Report, Volume 43, Number 6, June 2015


Ordinance/Preemption: Washington: State Law Doesn't Preempt City Medical Marijuana Ban

Friday, June 05, 2015

Facts: Deryck Tsang runs a "collective garden" for growing medical marijuana. Under a Washington statute, collective gardens allow qualifying patients to pool their resources to grow medical marijuana for their own use. Tsang’s garden is located in the City of Kent, Washington. When the City passed an ordinance forbidding collective gardens [...]

Permits/Equal Protection: Dilapidated Buildings Justified City's 'Irrational' Permit-Denying Actions

Friday, June 05, 2015

Facts: In 2004, Stephanie Miller applied for permits to build a four-unit condominium project in the City of Monona, Wisconsin. City officials suggested that she buy a neighboring lot and seek approval for a larger condominium project. Miller bought the neighboring property, which had "sat gutted and vacant for five years," and contained dilapidated [...]

Condemnation: Valuable Billboards Can Increase Compensation For Condemnation

Friday, June 05, 2015

Facts: Clear Channel Outdoor, Inc. (Clear Channel) leased two small parcels of land along the Katy Freeway near downtown Houston. The parcels are perfectly situated for billboards because they are in a highly visible location on a heavily traveled road. Clear Channel built a billboard on each parcel. Each billboard was attached to wooden poles that were buried [...]

Environmental: Nuisance, Trespass & Negligence Claims Require Expert Opinion Regarding Contamination

Friday, June 05, 2015

Facts: In 2008, more than a billion gallons of sludge poured out of a container owned by the Tennessee Valley Authority (TVA). The sludge contained coal ash, a byproduct of coal-fired power plants that contains heavy metals and is considered a pollutant. At the time of the spill, James Ryan lived about 2.8 miles northwest of the spill site and [...]


Land Use Law Report, Volume 43, Number 5, May 2015


Undesirable Land Use: Donation Bins Are Protected Free Speech, Ordinance Struck Down

Thursday, May 07, 2015

Facts: Planet Aid, a nonprofit charitable organization, challenged an ordinance that prohibited unattended, outdoor donation bins within the City of St. Johns, Michigan. Planet Aid collects donated clothing and shoes through its donation bins, and then it distributes those donated items to organizations in other countries. In December 2012, Planet [...]

Nuisance: Landowner Successfully Sues Twice For County's Faulty Stormwater System

Thursday, May 07, 2015

Facts: In 2011, William Heath, Jr. sued DeKalb County, Georgia for the second time. The first time, in 2009, he alleged that the County had failed to maintain its sewer and storm water drainage system, which caused flooding that eroded his property and resulted in an inverse condemnation. A jury awarded Heath $7,000 for the diminished value of [...]

Eminent Domain: Reservoir Commission With Private Member Could Not Condemn Property

Thursday, May 07, 2015

Facts: Eight municipal agencies and one corporation banded together and created the Clarke County Reservoir Commission (Commission), which condemned private property in order to create a new reservoir in Clarke County, Iowa. The landowners, including Linda Sue Abbott and the Edwin D. and Deloris A. Robins Revocable Trust, challenged [...]

Easements: Chemical Company May Not Be Able To Abandon Old Pipeline

Thursday, May 07, 2015

Facts: Angus Chemical Company (Angus) generated formaldehyde- and acetone-laced wastewater at a facility in Sterlington, Louisiana. It disposed of the wastewater via a 12-inch pipeline that ran across property owned by Glendora Plantation, Inc. (Glendora). Angus’ predecessor obtained a right-of-way easement from Glendora’s predecessors [...]


Land Use Law Report, Volume 43, Number 4, April 2015


Landowner Rights: Minnesota Buy-The-Farm Statute Not Subject To Reasonableness Requirement

Thursday, April 02, 2015

Facts: Great River Energy and other public utilities are installing a high-voltage transmission line from South Dakota to Minnesota. To install this line, the utilities need to obtain easements across many parcels of land. One such parcel is owned by Dale and Janet Tauer. Great River sought to use its power [...]

Takings: 6-Month Abandonment Rule For Mobile Homes Creates A Taking

Thursday, April 02, 2015

Facts: Under a zoning ordinance enacted by the Village of Lodi, Ohio, mobile home parks were not permitted on properties zoned R-2. Both Sunset Properties, L.L.C. (Sunset) and Meadowview Village, Inc. (Meadowview) owned properties zoned R-2 on which they operated mobile home parks. However, both landowners were able to continue [...]

Eminent Domain: Amtrak Couldn't Challenge Condemnation 7 Years After It Knew Of Its Injury

Thursday, April 02, 2015

Facts: In 2001, the New York State Department of Transportation (NYSDOT) began negotiating with the National Railroad Passenger Corporation (Amtrak) to purchase some of Amtrak’s property. NYSDOT planned to build an urban parkland called the Bronx River Greenway, and to do so required building on several parcels of land owned by Amtrak. The [...]

Environmental: Oregon Ballot Initiative Must Describe Impact On Air/Water Quality

Thursday, April 02, 2015

Facts: An Oregon ballot initiative, Initiative Petition 8 (2016), would eliminate some of the authority of Portland’s metropolitan service district. The metropolitan service district creates rules that are binding on cities and counties within the district. For example, the district adopts urban growth boundaries, creates a regional plan, and changes the comprehensive [...]


Land Use Law Report, Volume 43, Number 3, March 2015


Zoning: Notice Of Public Zoning Hearing Is 'Worthless' If Public Is Denied

Thursday, March 05, 2015

Facts: Labadie Environmental Organization and several individuals (collectively, LEO) challenged the legality of zoning amendments that allowed a power company to build a coal-ash landfill in Franklin County, Missouri. The County Commission of Franklin County (County Commission) proposed an amendment to its zoning ordinance to [...]

Environmental: Second Wind Farm Won't Further Degrade Wilderness Area's Character

Thursday, March 05, 2015

Facts: Deerfield Wind, LLC (Deerfield Wind) planned to build a wind farm in the Green Mountain National Forest in southern Vermont, near the George D. Aiken Wilderness (Aiken Wilderness). Deerfield Wind sought a special use permit from the U.S. Department of Agriculture Forest Service (Forest Service). The Forest Service completed a draft environmental [...]

Takings: Reserving Interest In Proceeds From Future Condemnation Doesn't Support Takings Claim

Thursday, March 05, 2015

Facts: In 2003, the City of North Las Vegas declared that it would condemn land owned by Buzz Stew, LLC (Buzz Stew) to build a flood waters drainage system. However, the City didn’t condemn the land. Nor did the City retract its public announcement that it planned to condemn the property. The next year, Buzz Stew sold the land to a third [...]

Historic Preservation: Homeowner Can Have Historic Designation Removed If Predecessor Didn't Consent

Thursday, March 05, 2015

Facts: In 1990, the City of Lake Oswego, Oregon placed a historic designation on property now owned by Marjorie Hanson. The owner at the time asked the City to remove the designation. The City denied the request, and the designation stayed. About five years later, Oregon enacted ORS 197.772, a statute that requires a local government to "allow a property owner to remove &hellip [...]


Land Use Law Report, Volume 43, Number 2, February 2015


Telecommunications: Cell Tower Denials Require ‘Essentially Contemporaneous’ Written Support

Wednesday, February 04, 2015

Facts: The City of Roswell, Georgia, through its city council, sent a letter to T-Mobile South, LLC (T-Mobile), denying T-Mobile’s application to install a new cell phone tower in Roswell. The denial followed a public hearing, which T-Mobile arranged to have transcribed. Twenty-six days after denying the cell phone tower application [...]

Historic Preservation: By Limiting Federal Involvement, State May Widen Historic District Road

Wednesday, February 04, 2015

Facts: Beginning in the 1980s, Highway 431 in eastern Alabama has been gradually widened from two lanes to four. The State of Alabama has long had a plan to widen the entire highway to four lanes, and the federal government has contributed $47 million to nearly 60 different projects related to the widening plan. One of the few remaining two-lane sections of Highway 431 runs through [...]

Takings: Takings Claim Can’t Be Based On Procedural Regulations Only

Wednesday, February 04, 2015

Facts: In 2008, the City of Houston declared a condominium complex, Park Memorial, to be uninhabitable. The City posted a notice that gave residents 10 days to apply for a certificate of occupancy or make repairs to the various structural, electrical, and plumbing problems noted by the City. The notice stated that failure to comply with the notice would subject [...]

Environmental: CERCLA ‘Petroleum Exclusion’ Bars Cost Recovery For Benzene Plume

Wednesday, February 04, 2015

Facts: Getty Properties Corp. (Getty) operated a gas station in White Plains, New York. The property is no longer used as a gas station. For some time, gasoline has been leaking from underground tanks and spreading in a plume towards Building 159, a residential apartment building owned and operated by the White Plains Housing Authority [...]


Land Use Law Report, Volume 43, Number 1, January 2015


Zoning: Sale Of Church Property Is A Secular Activity, Not A Religious One

Wednesday, January 07, 2015

Facts: By the 1970s, the congregation of the Methodist Church on Larkin Street in San Francisco was declining. By 2000, the congregation numbered only eight, and the building had fallen into disrepair. In 2003, the congregation stopped using the building at all and transferred it to the California-Nevada Annual Conference of the Methodist Church (Conference). By [...]

Zoning: 'Possible' Traffic Hazard Is Not Sufficient To Deny Conditional Use Permit

Wednesday, January 07, 2015

Facts: Isanti County, Minnesota amended its zoning ordinance to allow "rural retail tourism businesses" to be conditional uses in areas zoned agricultural or residential. To operate a rural retail tourism business, property owners had to obtain a conditional use permit (CUP) from the county planning commission and "have a unique and demonstrable relationship with [...]

Takings: 'Commandeering' Is A Type Of Taking, Subject To 3-Year Time Limit

Wednesday, January 07, 2015

Facts: Following Hurricane Katrina, the State of Louisiana "commandeered" property belonging to Frank LaBruzzo by an executive order on February 10, 2006. The State used LaBruzzo's property to repair a levee and floodwall and to build a canal. LaBruzzo has not been able to access or use his property since the construction project began on February [...]

Easements: Conservation Easement Was Unmarked On Plat But Enforceable Against Landowner

Wednesday, January 07, 2015

Facts: In 1998, Fairhill Partners (Fairhill) executed a Conservation Easement Agreement (Agreement) to create a forest conservation easement within a subdivision that Fairhill was developing in Montgomery County, Maryland. The Agreement was recorded in the County s land records, but neither the Agreement nor the conservation easement were marked on the plats for [...]

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