Land Use Law Report
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Articles for the year 2017

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Total Result(s) Found: 51


Land Use Law Report, Volume 45, Number 12, December 2017

Mechanic's Liens


Under CERCLA, Subcontractor Can't Recover From Landowner Who Has 'Borne The Costs Of Its Actions'

Tuesday, December 05, 2017

Facts: Landowner Norampac Industries, Inc. (Norampac) executed a soil contaminant cleanup project, governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), on a piece of land in Erie County, New York. Norampac contracted with AAA Environmental, Inc. (AAA) to excavate and remove the contaminated soil, and AAA in turn subcontracted [...]

In Utah, Visible Evidence Of Work Required To Attach Lien

Tuesday, December 05, 2017

Facts: Pentalon Construction, Inc. (Pentalon) was the general contractor on an auto plaza construction project in Utah owned by Rymark Properties, LLC (Rymark). After Pentalon had spent 213 hours excavating the property for a building’s foundation, a predecessor in interest recorded a deed on the property. In the ensuing dispute over priority, Pentalon argued [...]

Supplier To Sub-Subcontractor Had No Lien Rights

Tuesday, December 05, 2017

Facts: After Bowen Engineering (Bowen) performed work on a biofuels construction project, it sought compensation for that work by suing Scott Process Systems, Inc. (Scott) and its surety, Pacific Indemnity Company (Pacific), based on bonds issued on the project. Bowen also sought to foreclose on the mechanic’s lien it filed against the project [...]

Engineer’s Lien Claim Reaches Back To Before Plans Were Delivered

Tuesday, December 05, 2017

Facts: Union Land Company, otherwise known in this case as Summerwind LLC, was the owner and developer of a residential subdivision and golf course project near Greenleaf, Idaho. When funding for the development fell apart, the lender filed a deed of trust. Subsequently, paving contractor Hap Taylor & Sons, Inc., doing business [...]


Land Use Law Report, Volume 45, Number 11, November 2017

Suits & Immunity


Katrina Litigation Can’t Touch Corps

Tuesday, November 28, 2017

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

Landowner Successfully Sues Twice For County’s Faulty Stormwater System

Tuesday, November 28, 2017

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 [...]

Organic Farmer Can’t Sue Government For Presence Of Lead In Soil

Tuesday, November 28, 2017

Facts: John R. Hickerson leased land in New Jersey adjacent to a state Wildlife Management Area. Hickerson operated an organic farm on this property and, before this litigation, he grew certified organic watercress and fruit. He sued the State of New Jersey after finding lead shot on his property and elevated levels of lead in his soil. He claimed [...]

City Not Immune To Breach Suit For ‘Program Administrator’ Contract

Tuesday, November 28, 2017

A dozen years ago, the Texas legislature loosened the immunity bar for local governmental entities. For instance, under Local Government Code §271.152, governmental entities that enter into valid contracts for goods or services are not immune from contract breach suits. In a 2015 case, contract parties debated whether they in fact had a contract for “services.” The Court of Appeals [...]

Official Immunity Granted To Municipality’s Private Contractor

Tuesday, November 28, 2017

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.&rdquo [...]


Land Use Law Report, Volume 45, Number 10, October 2017

Utilities & Contracts


Contract Made Utility Responsible For Underground Unknowns

Thursday, October 05, 2017

Facts: The Sanitary Board of the City of Charleston, West Virginia (CSB) entered into a written agreement with J.F. Allen Corporation (J.F. Allen) for construction work on the City’s municipal sewer system. The $5.5 million job involved sewer replacement and manhole installation, among other [...]

Close Contract Reading Reveals That Utility Always Pays To Move Facilities To Accommodate New Railroad Tracks

Thursday, October 05, 2017

Facts: In 1990, MCI Communications Services, Inc. now doing business as Verizon Business Services (MCI) entered into a right-of-way agreement with Burlington Northern Railway (Burlington). That agreement conveyed to MCI a limited easement to use Burlington’s rail corridor for MCI’s fiber optic communication [...]

Dam Owner Can Close Dam If It Damn Well Pleases

Thursday, October 05, 2017

Facts: Duke Energy Carolinas, LLC (Duke) owns and operates seven hydroelectric projects in North Carolina’s Nantahala and Tuckasegee River Basins. In 2004, Duke applied to the Federal Energy Regulatory Commission (FERC) to surrender its operating license for the Dillsboro Project, a dam and powerhouse located on the Tuckasegee [...]

TN Telephone Utility Must Relocate Facilities At Its Own Cost Absent Pre-Arranged Reimbursement

Thursday, October 05, 2017

Facts: The Metropolitan Government of Nashville and Davidson County, Tennessee (Metro) maintains a system of streets, roads, parks and other public properties. Defendant BellSouth Telecommunications, Inc. (BST) provides telecommunications and other services in Davidson County and throughout Tennessee [...]


Land Use Law Report, Volume 45, Number 9, September 2017


Historic Preservation - University Buildings Subject To City Landmark Preservation Rule

Thursday, August 31, 2017

Facts: From 1961 to 1988, the University of Washington (UW) housed its nuclear reactor in the More Hall Annex. The Annex has been vacant since 1992. In 2015, UW’s Board of Regents (Regents) began considering demolishing the Annex and replacing it with a new building [...]

Development - Under NY Statute, Development Rights Are Real Property Rights

Thursday, August 31, 2017

Facts: Located in the Town of Pleasant Valley, New York, the 101-acre Hahn Farm has been in the Hahn family for nearly 250 years. In 2007, ownership of the Hahn Farm passed to the four children of Edna Hahn. Her will conferred a qualified life estate in the farm to her son [...]

Historic Preservation - Grammar Error Meant Town’s Window Modification Denial Was Improper

Thursday, August 31, 2017

Both a town historic commission and an Alabama trial court misinterpreted the phrase "contributing buildings and structures" when they determined that window-design standards applied to contributing buildings and all structures---rather than "contributing buildings and contributing structures." [...]

Zoning - Pawn Shop Entitled To Variance Because Eminent Domain Uniquely Burdened Property

Thursday, August 31, 2017

Facts: William Jachimek leased the building on an odd corner lot in the City of Phoenix, Arizona. The parcel has some unusual physical features caused by an eminent domain action: the property is much smaller than any of the nearby corner lots with the same zoning [...]


Land Use Law Report, Volume 45, Number 8, August 2017


Regulatory Takings - Supreme Court Sticks To Fact-Intense Test For Defining The Parcel At Issue

Wednesday, July 26, 2017

Facts: In the 1990s, the Murr siblings (the Murrs) acquired from their parents (the elder Murrs) two adjacent lots on the St. Croix River in Wisconsin. The lots are similar in size and shape: about 1.25 acres, long and narrow, with flat land next to the river rising to a steep bluff and more flat land above. Because of the bluff and the water line, each lot contains [...]

Inverse Condemnation - Taking A Business Property’s Only Parking Option Was ‘Substantial Destruction’

Wednesday, July 26, 2017

Facts: In 1981, Robert Barton bought a four-story commercial building at 70 South Main in Norwalk, Connecticut. The building itself came with only one parking space, and the City of Norwalk told Barton that he needed more parking spaces to comply with zoning ordinances, even though there was "abundant" on-street parking in the area. Barton [...]

Historic Preservation - No Demo Permit Needed To Partially Remove Building During ‘Restoration’

Wednesday, July 26, 2017

Facts: The River Road neighborhood in San Antonio, Texas became a designated "Historic District" in 2010. A year earlier, a group of developers bought a property in the neighborhood, on Lindell Place. The house on that property was originally built around 1950. Since then, numerous additions and changes had been made to the house, including an addition, a patio, a wraparound [...]

Use Permit - In California: Challenge Permit Conditions Before You Begin Building

Wednesday, July 26, 2017

Facts: Plaintiffs Barbara Lynch and Thomas Frick own neighboring oceanfront properties in Encinitas, California. Their respective houses are at the top of a coastal bluff, which slopes steeply down to the beach. Landslides are common in the area, and seawalls are used in Encinitas to protect bluffs from landslides. In 1986, a shared seawall was [...]


Land Use Law Report, Volume 45, Number 7, July 2017


Zoning - County Properly Used ‘Surrogate Questions’ To Interpret Ordinance

Friday, July 07, 2017

Facts: Larry Kaplowitz and Karin Marcus wanted to convert part of a horse barn into a "sanctuary" containing a yoga/dance/music studio, guest room, recording study, and bathrooms. The owners planned to use the sanctuary themselves each day and to share it with small groups of friends on the weekends. They also planned to use the sanctuary [...]

Zoning --- Use Permits - In Maryland City, Developers Must Obtain Both City & County Permits

Friday, July 07, 2017

Facts: In 2002, the City of College Park, Maryland and the Prince George’s County Council entered into an agreement under which the city would enforce the county zoning ordinance. In Maryland, a municipal corporation within a county (that is, a city) generally lacks independent zoning authority. However, a municipal corporation has " [...]

Historic Preservation - Challenge To Historic Barn Reduction Showed No Real Harm

Friday, July 07, 2017

Facts: Steven and Caroline Young wanted to build an addition on their home in Groton, Connecticut. To make enough room for the addition, the Youngs would first need to remove part of a historic barn on their property. Their neighbors, Robert and Mary Pat Mayer, opposed the proposed addition because it would block [...]

Zoning --- Use Permits - Expansion Limit Applies To Individual, Not Aggregate, Nonconforming Structures

Friday, July 07, 2017

Facts: Nebo Lodge, Inc. and Nebo Real Estate, LLC (together, Nebo Lodge) own and operate an inn and restaurant in the Town of North Haven, Maine. The property contains two properties: the bungalow and the lodge, the latter of which houses the inn and restaurant. Nebo Lodge renovated and expanded the lodge in 2009 and 2010. Nebo [...]

Funding - Wield The Power Of A Great Grant Application For A Local Govt. Grantsman

Friday, July 07, 2017

This is not a "grant writing" presentation. This webinar, presented on July 25 at 1:00pm ET, will offer you a systems approach to establishing a grant generating machine for your local government. After listening in, you’ll be able to establish a grant acquisition program that has a long-range view focused on getting a large volume of grants---and [...]


Land Use Law Report, Volume 45, Number 6, June 2017


Government Immunity / Flooding: Immunity Protects City From Policy---Not Operational---Choice

Monday, June 05, 2017

Facts: In 2011, a water main leaked under Main Street in the City of Maple Plain, Minnesota. The leak flooded the basement of a building at the corner of Main Street and Budd Avenue owned by Magnolia 8 Properties, LLC (Magnolia). Because of the leak, Magnolia had to replace four furnaces and a water softener. The city repaired the water-main leak [...]

Special Use Permit / Nuisance: Approved Sand Mine Project Could Be A Prospective Nuisance

Monday, June 05, 2017

Facts: Sand mining company Aramoni LLC (Aramoni) owned 497­ acres made up of five tracts of land in La Salle County, Illinois. In 2009, it arranged to have two tracts annexed by the nearby Village of North Utica, both of which were zoned A-1 Agricultural and retained that zoning under the annexation agreement. A-1 zones can be used for sand [...]

Takings: Condemned Property’s Value Is Determined Singly---Not As Combined With Other Properties

Monday, June 05, 2017

Stephens Production Company (Stephens) sought to condemn easements in order to complete an underground natural gas storage facility. The Oklahoma Underground Storage of Gas statute gives any public utility, like Stephens, the power to "condemn for its use for the underground storage of natural gas any subsurface substratum or formation in any land which the [Oklahoma Corporation [...]

Zoning: Vacation Rentals Of ‘Single Family Dwellings’ Violate Zoning Ordinance

Monday, June 05, 2017

Facts: The zoning regulations of DeSoto County, Mississippi permit "single family dwellings" in residential neighborhoods. Tom Bostick and Larry Poe each own single family dwellings in the same DeSoto County residential neighborhood, Blue Lake Springs. Neither Bostick nor Poe lives in these houses. Instead, they rent [...]

Environmental: The Future of Climate Change Litigation & Environmental Rules

Monday, June 05, 2017

Climate change litigation, whether initiated by private parties, non-profits, or government bodies, has the potential to expose defendants to significant liability. Learn more in the webinar "Climate Change Litigation: The Challenges Ahead," presented June 15 at 1:00pm ET by attorney Jack Luellen. He [...]


Land Use Law Report, Volume 45, Number 5, May 2017


Nuisance --- Historical Preservation: Private Person Couldn’t Acquire Ownership Of Public, Confederate Monument

Friday, May 05, 2017

Background: After a vigorous, six-month debate, the City Council of New Orleans enacted an ordinance that required the City of New Orleans to remove three monuments from outdoor display on public property because they were nuisances. The monuments depict three leaders of the Confederate States of America: General P.G.T. Beauregard, Jefferson Davis, and [...]

Trespass: Fiber-Optic Cables Exceeded Electrical Line Easements’ Scope

Friday, May 05, 2017

Facts: Sho-Me Power Collective is a rural electric cooperative in Missouri. As a utility with the right of condemnation, Sho-Me acquired easements to build and operate an electric transmission line across thousands of parcels. Before 1997, Sho-Me used microwave radio frequencies to communicate with its unattended power stations. But the Federal Communications Commission [...]

Zoning: Fraternity Not Protected As Nonconforming---or ‘Grandfathered’---Use

Friday, May 05, 2017

Facts: The Dartmouth Corporation of Alpha Delta (Alpha Delta) challenged a zoning decision by the Town of Hanover, New Hampshire that it immediately cease using its fraternity house. Alpha Delta, a Dartmouth College fraternity since the 1840s, built the house in question in 1920. From then until the Town’s order, Alpha Delta used the house [...]

Zoning: Tattoo Artist Challenged City’s ‘Unbridled Discretion’ Under First Amendment

Friday, May 05, 2017

Facts: James Real owns a tattoo shop in Huntington Beach, California and has long wanted to open one in nearby Long Beach. But the City of Long Beach has a restrictive zoning ordinance when it comes to tattoo shops. They are forbidden in most parts of Long Beach, and where they are permitted, they require a conditional use permit to operate. The [...]


Land Use Law Report, Volume 45, Number 4, April 2017


Takings / Undesirable Land Use: Repetitive Complaint Precludes Federal Suit Challenging City's Nuisance Abatement

Tuesday, April 04, 2017

Facts: Landowner Leonard Anderson unsuccessfully sued the City of St. Paul, Minnesota for, among other things, taking and destroying property that it collected from his land in 2011. Anderson himself used his 2.3 acres to collect and store items like ''barrels, boats, and broken lawnmowers.'' The City was not impressed by his collection, declared [...]

Zoning / Undesirable Land Use: Landfill Prohibition Use Was Retroactive, Thus Unconstitutional

Tuesday, April 04, 2017

Facts: In 1989, Southern States-Bartow County, Inc. (Southern States) applied to develop and operate a landfill on its property in Bartow County, Georgia. A few years earlier, Southern States' predecessor in interest acquired a certificate of zoning compliance from the County. The certificate indicated that a landfill was a permissible use under [...]

Environmental: Generous Statute Of Limitations Applies To CERCLA-Type State Claims Only

Tuesday, April 04, 2017

Facts: In 1994, Consolidation Coal Company (Consolidation Coal) acquired the necessary government permit to pump excess water out of an operational mine and into an exhausted mine, a process called ''dewatering.'' Before Consolidation Coal began dewatering its mine, it published notices in several newspapers for three months. It also built a visible pipeline from [...]

Zoning: Zoning Board Can't Limit Alpaca Exception To Particular Owners

Tuesday, April 04, 2017

Facts: Todd and Tina Sposato keep four alpacas on their residential property in the Town of Hopkinton, Rhode Island. They consider the alpacas to be pets. Their neighbor, Amber Preston, lives in a single-family home next door and apparently does not enjoy the Sposatos' alpacas. In 2011, the Town's Zoning Officer issued a zoning [...]


Land Use Law Report, Volume 45, Number 3, March 2017


Takings: No Taking When Govt. Dumps Debris Into Easement Sinkhole

Friday, March 03, 2017

Facts: South Central Kentucky Properties, Inc. (South Central) owns a parcel in Kentucky that used to contain a cinder-block hotel and a sinkhole. Rain would pool in the sinkhole, creating a hazard. So when South Central began planning to demolish its hotel, it sent a letter to the Kentucky Energy and Environmental Cabinet (EEC) asking for permission [...]

Easements -- Energy: $8K Award Premature: It Was Based On Ambiguous Pipeline Easement

Friday, March 03, 2017

Facts: Darwin and Jean Krenz own the surface estate for land in North Dakota. XTO Energy, Inc. (XTO) owns the mineral rights to three portions of the Krenzes' property: A, B, and C. In 2007, the Krenzes had granted an easement to XTO's predecessor in interest. That easement authorized its owner to build a gas pipeline in section [...]

Nuisance: Wild Animals' Stench May Be Unpleasant, But It's Not A Public Nuisance

Friday, March 03, 2017

Birds also cover the bluffs with their waste, or ''guano.'' And, in 2013, the City's mayor declared that bird odors from ''cormorants, gulls, pigeons and pelicans'' were a public health hazard that required remediation. The City contracted with a company to treat the guano with a microbial cleaner that met all relevant environmental regulations. The microbial cleaner successfully eliminated guano [...]

Environmental: Building Bridge Through Park Was Reasonable Where Alternative Was More Harmful

Friday, March 03, 2017

Facts: The City of Port St. Lucie in Florida has needed a third vehicle bridge since at least 1980. The two that cross the North Fork St. Lucie River have been beyond traffic capacity for decades. Merely widening the bridges wouldn't relieve the traffic, and so, after much study and consultation, the City decided to build a third bridge in 2008. Only one location [...]


Land Use Law Report, Volume 45, Number 2, February 2017


Zoning: Calif. Preserves Open Space Where City's New General Plan Outweighs Older Version

Wednesday, February 01, 2017

In 2007, Milan began working with the City to amend the General Plan so that it could develop the property. Milan and the City discovered a City resolution from 1973 that instead designated the land for use as ''Open Space and Low Density (1 acre)'' (emphasis added). The resolution was supposed to be incorporated into the City's General Plan but never was. Thus the General Plan available [...]

Development: Freezing Land Use Laws Promotes Substantial Development, Maryland Court Affirms

Wednesday, February 01, 2017

Facts: In 1995, Maryland enacted its development rights and responsibilities agreement (DRRA) statute, which allowed local governments to enter into agreements with landowners to ''establish conditions under which development may proceed for a specified time.'' Md. Code, Art. 66B, § 13.01. Specifically, the statute allows an agreement to temporarily ''freeze'' local laws that [...]

Nuisance: In Vermont, Ugly Is Still Not A 'Nuisance'

Wednesday, February 01, 2017

Facts: Peck Electric Company and Solarcommunities, Inc. (defendants) leased land in Vermont for the purpose of building commercial solar arrays. Neighboring landowners sued the defendants for private nuisance, alleging that the solar arrays ''negatively affected the surrounding area's rural aesthetic,'' which in turn caused property values to decline [...]

Zoning / Historic Preservation: Zoning Board Had Authority To Interpret Ordinance, Approve Museum Addition

Wednesday, February 01, 2017

Facts: The Breakers is a historic Vanderbilt summer home in Newport, Rhode Island that has operated as a museum since 1948. The Preservation Society of Newport County has been operating the museum since then, and it has owned the property since 1972. In 1977, Newport amended its zoning ordinance to allow museums under a ''special exception'' in the residential [...]


Land Use Law Report, Volume 45, Number 1, January 2017


Nuisance: Cell Tower's 'Invasive' Lights Not A Nuisance, Caused No Physical Harm

Tuesday, January 03, 2017

Facts: BoDe Tower, L.L.C. (BoDe) properly constructed a telecommunications tower in Muskogee County, Oklahoma. BoDe acquired all of the necessary federal, state, and local permits. It also consulted with local Native American tribes, who did not object to the tower. After learning of the proposed tower, owners of a neighboring property sued BoDe in state court [...]

Undesirable Land Use: Ordinance's Use Of 'School' Encompasses More Than Instruction

Tuesday, January 03, 2017

Facts: Fryeburg Academy is a private secondary school in the Town of Fryeburg, Maine. It owns two parcels of land with different zoning designations. The first parcel (the Land Lot) was historically used for agricultural purposes; the second parcel (the House lot) was historically used for residential purposes. The Academy applied to the Town to [...]

Use Permits: Pop-Up Beer Garden In Residential District Can Stay---Even Without Use Permit

Tuesday, January 03, 2017

Facts: The owners of two bars and a liquor store partnered with the owner of a vacant lot in Philadelphia (collectively, the owners) to create a ''pop-up beer garden.'' The vacant lot is in an area of Philadelphia zoned for residential, multi-family use. The owners planned to run the beer garden during the summer with limited operating hours, the latest being 11 pm on Friday and [...]

Easements / Energy: No Federal Jurisdiction When Easement, Not Federal License, Determines Outcome

Tuesday, January 03, 2017

Facts: Richard A. Pressl and Theresa Pressl own property next to Smith Mountain Lake in Virginia. Two-and-a-half acres of their property is above the 800-foot median sea level, and half an acre is below that line. They bought their property subject to a flowage easement granting rights to the Appalachian Power Company (APCO). These [...]

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