Land Use Law Report
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Articles for the year 2016

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Total Result(s) Found: 50


Land Use Law Report, Volume 44, Number 12, December 2016


Historic Preservation: Façade Conversation Easement Must Preserve 'Entire Exterior' For Tax Break

Friday, December 02, 2016

Facts: In 2008, the owner of a building in a historic district of New York City signed a ''Historic Preservation Deed of Easement.'' The deed donated an easement in the building's façade to the Trust for Architectural Easements. The building is a four-story walk-up in the Upper East Side of New York that was built in the 1870s. The easement reserved 2,700 square feet of '' [...]

Zoning --- Undesirable Land Use: 'Aquaculture' Isn't 'Agriculture' Until The Legislature Says So

Friday, December 02, 2016

Facts: Plaintiffs Anthony T. Bavusu and Elyse K. Pyle farm oysters in the water near their home in the County of York, Virginia. On June 17, 2014, the plaintiffs' property was re-zoned from a ''resource conservation'' category to a ''purely residential'' category. Without a special use permit, farming oysters is unquestionably [...]

Easements: Destruction Of Trees Is Irreparable Damage, Supports Injunction

Friday, December 02, 2016

Facts: George and Tennie Nemchik own property in Cobb County, Georgia adjacent to property owned by Tony Michael Riggs. The Nemchiks claim that they also own an easement across a heavily wooded portion of Riggs's property known as Lot 9. Riggs, who plans to develop his property, denies that an easement across his property even [...]

Zoning --- Historic Preservation: Zoning Board Misapplied Law To Approve Historic Area Project

Friday, December 02, 2016

Facts: The District of Columbia's Board of Zoning Adjustment (the Board) authorized a developer to build an apartment community with no parking. The developer, SB-Urban, LLC (SB-Urban), asserted that the apartment community would be marketed to young professionals who want to live ''car-free in a walkable neighborhood close to urban conveniences [...]

Negligence --- Utilities --- Construction: Excavator With 'Actual Notice' Of Telephone Line It Hit Wasn't Negligent

Friday, December 02, 2016

Facts: While performing excavation work on a tunnel construction project in Maple Heights, Ohio, subcontractor Leon Riley (Riley) hit and damaged a telephone conduit owned by Ohio Bell Telephone Company (Ohio Bell). Ohio Bell spent $338,596 to repair the conduit and sued Riley for negligence. A jury found that Riley was not negligent in dealing [...]


Land Use Law Report, Volume 44, Number 11, November 2016


Environmental: Wild Horse Overpopulation Doesn't Dictate Automatic Removal

Tuesday, November 08, 2016

Facts: The State of Wyoming sued the U.S. Department of the Interior and one of its agencies, the Bureau of Land Management (BLM), over an alleged failure to remove wild horses from BLM-managed federal lands. The BLM had determined that the number of wild horses in those areas exceeded the maximum number that could sustainably [...]

Zoning: Town May Enforce Zoning Ordinance After 30 Years Of Nonconforming Use

Tuesday, November 08, 2016

Facts: In 1957, the properties around Belladonna Road in the Charter Township of Lyon, Michigan were zoned for residential and agricultural use. A dozen years later, the Hoskins family bought land on Belladonna Road and quickly built a single-family home. A year later, the family sought and received a permit to build a pole barn [...]

Easements: Massachusetts Finds No Flexibility In Bright-Line Rule On Easements Limits

Tuesday, November 08, 2016

Facts: On the western edge of Martha's Vineyard is a nature preserve owned and managed by Martha's Vineyard Land Bank Commission (Land Bank). The preserve includes four parcels that are separated from the nearest public road by land owned by Hugh C. Taylor and others (plaintiffs). That land is known as the Inn Property. It contains a small hotel [...]

Trespass: Neighbor Cut Down Tree, Must Pay Damages For Emotional Distress

Tuesday, November 08, 2016

Facts: Leslie Pendergrast and Robert Matichuk own adjacent lots in Washington state. Their properties were separated by a wooden fence, and on Pendergrast's side of the fence grew a large cherry tree. Pendergrast intended to turn her hundred-year-old home into a bed and breakfast. Her plans for the business included building a tree fort in the [...]


Land Use Law Report, Volume 44, Number 10, October 2016


Takings: No Taking When Police Bulldozed A Store

Monday, October 03, 2016

Facts: Police serving the City of Spartanburg, South Carolina chased an armed man into a convenience store, where he took a hostage. Negotiations failed, as did attempts to induce surrender using tear gas and pepper spray. After twelve hours, the police used a bulldozer to enter the building to rescue the hostage. Bulldozing the store severely damaged it, and the [...]

Undesirable Land Use: Collector Cars Deemed A Safety Hazard In Minnesota

Monday, October 03, 2016

Facts: John Krenik lives in St. Paul, Minnesota in a single-family house with a driveway and a garage. In the driveway, he keeps a Buick that he drives and two ''collector vehicles.'' One of Krenik's neighbors complained to the City of St. Paul Department of Safety and Inspections after the collector vehicles had not been moved [...]

Equal Protection: Minimizing Litigation Risk Is A Legitimate Government Interest

Monday, October 03, 2016

Facts: A Minneapolis water main broke and flooded units in the Sexton Condominium Building. The flood caused damage to the building, owned by the Sexton Condominium Association, Inc. (Sexton), and a number of individual units. Some of those units were insured, and two insurance companies--plaintiffs American Family Insurance and Liberty Mutual Insurance [...]

Nuisance: Shared Tree Can Be Felled By Majority Owner

Monday, October 03, 2016

Facts: In 2006, Keith and Shannon Love bought property that contained less than half of a mature catalpa tree. The rest of the tree is on neighboring property now owned by Mark Klosky and Carole Bishop. The tree is 70 feet tall and healthy. However, the tree is deciduous and produces long seedpods, so each fall [...]

Lien Law / Construction: In Utah, Visible Evidence Of Work Required To Attach Lien

Monday, October 03, 2016

Facts: After construction contractor Pentalon Construction, Inc. (Pentalon) had spent 213 hours excavating a property for a building's foundation, a predecessor in interest recorded a deed on that property. In the ensuing dispute over priority, Pentalon argued that its excavation work constituted ''commencement to do work'' under the Utah Mechanic's Lien Act (the [...]


Land Use Law Report, Volume 44, Number 9, September 2016


Zoning / Religious Land Use: Living Restriction For Sex Offenders Is 'Zoning Law' Under RLUIPA

Thursday, September 01, 2016

Facts: Ricky Martin, the pastor of Triumph Church in Chilton County, Alabama, maintained a Christian ministry for registered sex offenders. Martin offered transitional housing to sex offenders who had recently been released from prison, housing them in mobile homes on land next to Triumph Church. Martin stopped the ministry only when Chilton County District Attorney [...]

Negligence / Nuisance / Immunity: Official Immunity Granted To Municipality's Private Contractor

Thursday, September 01, 2016

Facts: The City of Rockford, Minnesota hired a private engineering firm to act as its ''City Engineer.'' The firm, Bonestroo, Rosene, Anderlik and Associates (Bonestroo), and the City entered into a professional services agreement, which allowed the ''City to obtain engineering and architectural services in a cost-effective and timely manner.'' The agreement specified [...]

Takings / Inverse Condemnation: Privately Built Drainage System That Flooded Homeowners' Yard Could Be A Taking

Thursday, September 01, 2016

Facts: John and Melissa Fritz own property next to Whites Creek in Nevada. Before they bought it, Washoe County approved plat maps for Lancer Estates, a new development upstream of the Fritzes' property. After the Fritzes bought their property, the County approved plat maps for a second upstream development, Monte Rosa. After the [...]

Zoning / Undesirable Land Use: Landowner Has No Property Interest In Zoning Law Enforcement Against Neighbor

Thursday, September 01, 2016

Facts: In April 2014, Lawrence Miller noticed that his neighbor was operating a substance abuse treatment facility in the Town of Wenham, Massachusetts. The neighborhood was zoned for residential use, but the treatment facility housed up to fourteen people at a time, which didn't meet the residential zoning requirements. Miller filed a ''Request [...]


Land Use Law Report, Volume 44, Number 8, August 2016


Environmental: Approving Wind Turbines Does Not Make Federal Agency Liable For Bird Deaths

Wednesday, August 03, 2016

Facts: The Bureau of Land Management (BLM) granted to Tule Wind, LLC a right-of-way to build and operate about 150 wind turbines on federal land in San Diego County, California. The BLM approved the grant after conducting an environmental impact statement, obtaining modifications to the original wind project, and conditioning the grant on numerous [...]

Easements / Zoning: No Zoning Decision Challenge Based On Easement Interference

Wednesday, August 03, 2016

Analysis: Maurice and Colleen Picard owned property in Westminster, Massachusetts, near Wyman Pond. Their property did not abut the pond, but their deed included an easement granting access to the pond across a neighboring property, now owned by 3333, Inc. (3333) The easement included use of a ''beach area'' that the Picards and others accessed [...]

Fair Housing Act: Variance's 'Restoration Provision' Could Run Afoul Of Fair Housing Act

Wednesday, August 03, 2016

Facts: Colleen and John Austin bought a property in the Town of Farmington, New York that was subject to a town ordinance disallowing pools and fences on the property. After they bought the property, they sought a variance from the town so that they could add a fence and an above ground pool to the property. They explained that [...]

Zoning/ Undesirable Land Use: Zoning Restriction Applies To Entire Building, Not Section Where Horses Are Stabled

Wednesday, August 03, 2016

Facts: The City of Charleston's City Council enacted ordinances to regulate the horse carriage tour business, including adding a requirement for a special use exception to operate a ''horse stable'' in general business and urban commercial zoning districts. The ordinance includes seven criteria for a special use exception, including that a stable cannot be located [...]


Land Use Law Report, Volume 44, Number 7, July 2016


Nuisance: Nuisance Plaintiffs Can Recover Both ‘Annoyance’ And Diminution Damages

Monday, July 04, 2016

Facts: In 1995, Lynn and Duron Davis bought four acres in Bartow County, Georgia on Highway 411. The area was zoned for low-density residential or agricultural use, and they lived in a house on the property. Nine years later, the property across the highway from the Davises was rezoned for heavy industrial use. Toyo Tire North America Manufacturing [...]

Environmental: SCOTUS: Clean Water Act 'Jurisdictional Determinations' Are Final Agency Actions

Monday, July 04, 2016

Facts: Three companies that mine peat moss in Minnesota sought a permit from the Army Corps of Engineers (Corps) to discharge materials onto wetlands located on their properties. These permits are known as Section 404 permits, and they authorize their holders to “discharge of dredged or fill material into the navigable waters [of the United States] [...]

Zoning: Zoning Board Failed To Hold Proposed High Rise To Moderate-Density Standard

Monday, July 04, 2016

Facts: Developer 901 Monroe Street, LLC (901 Monroe) wanted to develop a parcel of land in the District of Columbia that contains five detached residential houses and one two-story commercial building. 901 Monroe’s plan was to replace those structures with a six-story building containing eight commercial tenants on the ground floor and more than 200 residential [...]

Takings: NC Must Pay For Restricting Development In Planned Highway Corridors

Monday, July 04, 2016

Facts: In North Carolina, the Department of Transportation (NCDOT) uses its power of eminent domain to purchase land for highway corridors. To help lower these costs, the state enacted the Roadway Corridor Official Map Act (Map Act) in 1987. The Map Act provides a procedure for identifying future highway corridors, preventing development of any land within those corridors and providing [...]


Land Use Law Report, Volume 44, Number 6, June 2016


Energy: Colorado Home-Rule Cities Can’t Ban Fracking

Wednesday, June 01, 2016

Longmont is a "home-rule municipality," meaning that it has a level of sovereignty from state laws. Under the Colorado constitution, residents of home-rule cities like Longmont can create and amend city charters to enact laws that govern local and municipal matters. Moreover, those laws will supersede any conflicting state laws. Thus, home-rule cities have "independence from state [...]

Takings / Inverse Condemnation: View-Blocking Trees Can’t Support Inverse Condemnation

Wednesday, June 01, 2016

Facts: In 1989, the City of Beverly Hills planted 31 coastal redwood trees in Roxbury Park. Redwoods are the tallest-growing species in the world, and, by 2005, those 31 trees had begun to block the views of Francis Boxer and other residents of Spalding Drive in Beverly Hills. Boxer and his neighbors were "accustomed to having an unobstructed [...]

Nuisance: Poor Wall Design Or Not, Architect Wasn't Liable For A Public Nuisance

Wednesday, June 01, 2016

Facts: Gregg Fisk fell off a retaining wall owned by the Town of Redding, Connecticut. Fisk was injured by the fall, and he sued the firm that designed the wall, BL Companies, Inc. (BL). Fisk alleged that the wall constituted a public nuisance because it did not have protective fencing. BL moved for summary judgment, arguing that [...]

Permits: Optimism About Land Use Goals Doesn’t Foreclose Future Permit Changes

Wednesday, June 01, 2016

Facts: In 1994, the City of Burlington, Vermont obtained a permit to host events in Waterfront Park. Up to that point, the City had used the park to host a dozen summer events. In applying to the state Natural Resources Board for a use permit, the City had "ambitious aspirations for the Park," which included fostering a "robust waterfront that would [...]


Land Use Law Report, Volume 44, Number 5, May 2016


Preemption: Nat’l Park Regs Enforcement Must Account For Alaska’s Uniqueness

Thursday, May 12, 2016

Facts: John Sturgeon sued the National Park Service seeking declaratory and injunctive relief on a very narrow question: Whether the Park Service can prevent him from using his hovercraft on the Nation River in Alaska to access a hunting preserve. Park Service regulations forbid the use of hovercraft within federally managed preservation areas [...]

Negligence: In Washington, Property Owners Owe No Duty Of Care To Protect Neighbor’s Trees

Thursday, May 12, 2016

Facts: Jennifer Mustoe had two large Douglas fir trees on her property in Rainier, Washington. The trees were only 2.5 feet from the adjacent property owned by Xiaoye Ma and Anthony Jordan. In 2013, Ma and Jordan dug a ditch along the property line. To create the ditch, they severed all of the trees’ roots, leaving only three [...]

Undesirable Land Use / Residential Land Use: Chickens Can Be ‘Household Pets’ Under Restrictive Covenant

Thursday, May 12, 2016

Facts: The defendants in this case keep hens on the residential properties they own in the Eldorado at Santa Fe Subdivision in Santa Fe County, New Mexico. The subdivision’s homeowners’ association, Eldorado Community Improvement Association, Inc. (HOA), sued the defendants, including Susan Billings, for violating the subdivision&rsquo [...]

Undesirable Land Use: Agency Properly Banned Smoking In NYC State Parks

Thursday, May 12, 2016

Facts: By 1987, the New York Public Health Council had tired of failed legislative attempts to limit smoking in public areas, despite mounting evidence of the "deleterious effect of tobacco smoking." After 40 bills had failed in the state legislature during the preceding twelve years, the Public Health Council "took action of its own" by promulgating regulations [...]


Land Use Law Report, Volume 44, Number 4, April 2016


Undesirable Land Use / Zoning: Cease-And-Desist Order Didn’t Deprive Landowner Of Property Interest

Tuesday, April 05, 2016

Facts: Dean’s Point After Super Sports Bar and Grille, known as "the Point After," was a sports bar that transformed itself into a small concert venue. The Point After is located in the Town of Hamden, Connecticut, which regulates bars and "amusements" via its zoning ordinances. In 2008, the Town’s fire marshal approved an increase [...]

Undesirable Land Use / Easements: Look Beyond Black’s To Define Easement Terms

Tuesday, April 05, 2016

Facts: In 1960, the owners of adjacent properties on South Main Street in Middletown, Connecticut entered into an easement agreement. They agreed that the property located at 192 South Main Street could use the driveway located on neighboring property 184-188 South Main Street. The driveway gave the owners of 192 South Main Street access to a garage behind an office building on [...]

ADA / Historic Preservation: No ADA Violation Where Wheelchair Ramp Was Not ‘Readily Achievable’

Tuesday, April 05, 2016

Facts: Eric Wong and the Disability Support Alliance (DSA) sued the owner of a building in St. Paul, Minnesota, alleging that the owner failed to make its building wheelchair accessible. The plaintiffs alleged that this failure violated the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act. The building’s owner, defendant [...]

Equal Protection: No Racial Discrimination In Streetcar Project Planned For African-American Neighborhood

Tuesday, April 05, 2016

Facts: The District of Columbia has been developing a new streetcar program to "provide high-capacity and high-quality transit service to District residents and visitors." The District hoped that investing in this streetcar program would "catalyze economic development." To that end, the District selected its initial streetcar routes in order "to transform [...]


Land Use Law Report, Volume 44, Number 3, March 2016


Historic Preservation: San Fran Landmark Update Approved Despite Misinterpretation Of Statute

Wednesday, March 16, 2016

Facts: The Presidio of San Francisco (Presidio) is a National Park and National Historic Landmark, but it was a military base for more than 200 years, beginning with the Spanish in the late eighteenth century. In 1994, the National Park Service (Park Service) assumed control of the Presidio from the U.S. Army. Currently, the Presidio is maintained by the [...]

Undesirable Land Use: New Restrictive Covenant Requires Signatures, Not Just A Vote

Wednesday, March 16, 2016

Facts: In 2006, Steven and Marta Tvardek bought a home that is governed by a homeowners association, the Powhatan Village Homeowners Association (HOA). Two years after the Tvardeks bought their house, the HOA amended its restrictive covenants to prohibit members from renting their houses. The Tvardeks challenged the amendment in court in 2013, [...]

Easements: Owner Of Landlocked Property Chose His Exit Route Poorly

Wednesday, March 16, 2016

Facts: In 2001, Robert Hoyt bought a 40-acre lot in a heavily forested part of Indiana intending to live in a cabin on the property. However, no public roads pass through the property, and none of Hoyt’s neighbors will sell him an easement--or even name a price for such an easement--to allow him to access a public road. Apparently, "Hoyt could obtain access [...]

Adverse Possession: Railway Converted To Trail Cannot Be Adversely Possessed

Wednesday, March 16, 2016

Facts: Ajay Bhatt’s earliest memory of the fence in his yard is from 1977, when he was eight years old and the property belonged to his aunt. Other memories traced the fence back to 1960. Part of the fence enclosed a railroad right of way, which Montgomery County, Maryland has been using as a recreational trail since 1988. In 2013, forty [...]


Land Use Law Report, Volume 44, Number 2, February 2016


Zoning / Variance: Property's Peculiar Characteristics Not Enough To Justify Zoning Variance

Monday, February 08, 2016

Facts: When the Town of Fairfield, Connecticut adopted its zoning ordinance, the property located at the corner of Post Road and Sanford Road did not meet the new setback requirements--that is, that a building in the business district zone be set back 10 feet from the street and rear property line. The building on the Post Road/Sanford Road property extends to both streets and [...]

Takings: In Florida Rails-To-Trails Cases, Deed Language Controls

Monday, February 08, 2016

Background: Since Congress enacted the National Trails System Act Amendments of 1983 (Trails Act), many miles of abandoned railroad track have been removed and replaced with recreational trails that are open to the public. Takings claims often arise because of the way the railroads originally acquired these land corridors. Although some corridors were acquired through eminent domain [...]

Nuisance / Undesirable Land Use: Noisy Airboats Can Be Nuisance Even When Rule-Abiding

Monday, February 08, 2016

Facts: Wayne L. Neidlinger, doing business asCaptain Fred’s Airboat Nature Tours (Captain Fred’s), operates commercial airboat tours on Lake Hamilton in Florida. These tours generate noise levels up to 100-110 decibels when the airboats come within 1,500 feet of the shoreline. People live along the shore of Lake Hamilton, and almost 400 of the residents [...]

Nuisance / Negligence: Sewer Gas Nuisance Case Pared Down By Notice Requirement

Monday, February 08, 2016

Facts: Raymond Kerr owns a house in the City of South Bend, Indiana, about two miles from an ethanol plant. Kerr’s house is attached to a main sewer line via a lateral sewer line. The City owns and maintains the main sewer line, and Kerr owns and maintains the lateral sewer line. In 2001, a member of Kerr’s household complained to the [...]


Land Use Law Report, Volume 44, Number 1, January 2016


Nuisance: Nuisance Claim For 'General' Water Damage Survives Causation Test

Monday, January 11, 2016

Facts: Plaintiffs Anna Bord and Victor M. Bondar sued their neighbors, Amy L. and Daniel A. Hillman, for nuisance, along with a host of other claims. The plaintiffs alleged that the retaining wall the Hillmans built on their own property caused water to back up onto the Bord/Bondar property. The nuisance claim [...]

Takings: Without A Request For Compensation, Regulatory Taking Claim Went Nowhere

Monday, January 11, 2016

Facts: On April 26, 2014, Perfect Puppy, Inc. (Perfect Puppy) signed a lease to open a pet store in East Providence, Rhode Island. It received its state "pet shop" license and opened for business a month later. At the same time, the East Providence city council preliminarily passed an ordinance that banned the sale of cats and dogs within city [...]

Undesirable Land Uses: Village Not Liable For Shuttering Slaughterhouse That Was Financially Unstable

Monday, January 11, 2016

Facts: In 2001, Black Earth Meat Market, LLC (Black Earth Meats) bought a property in the Village of Black Earth, Wisconsin that had been used as a slaughterhouse and retail butcher shop for 60 years. When Black Earth Meats bought the property, zoning did not permit slaughterhouse operations, but the slaughterhouse use was a legal nonconforming [...]

Liens: Surveying Work Can Be A Property 'Improvement' Under Illinois Lien Law

Monday, January 11, 2016

Facts: Christopher B. Burke Engineering, Ltd. (Burke Engineering) contracted with Glen Harkins in April 2008 to survey land that Harkins wanted to purchase. Burke Engineering began work before Glen and Carol Harkins bought the property from Carol Schenk. By February of 2009, Burke Engineering had recorded the final [...]

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