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Land Use Law
- 1. 2012 Land UseLaw Thursday, September 20, 2012 John Boehnert Greg McGregor Dwight Merriam, FAICP Brian Smith
- 2. Our Speakers John Boehnert Law Offices of John M. Boehnert, Esq., Providence Greg McGregor McGregor & Associates, P.C. Dwight Merriam, FAICP Robinson & Cole LLP, Hartford Brian Smith Robinson & Cole LLP, Hartford
- 3. Fast paced, national perspective, lessons learned…
- 4. Armour v. Indianapolis (U.S. 2012) • Equal Protection Clause – You can treat paying and nonpaying landowners differently
- 5. Lessons • If it is only money at Learned issue, it may be hard for a government to be so “ irrational” as to be unconstitutional under the Equal Protection Clause
- 6. Bowers v. Whitman (9th Cir. 2012) • Substantive Due Process – Rational basis enough – Economic rights are not fundamental rights
- 7. Lessons • It is often difficult to find that rights have vested sufficiently to Learned support a constitutional claim of a taking • Finding vested rights may be very difficult if the legislature is cutting back on prior statutory rights because claimants overwhelmed the system
- 8. Henry v. JeffersonCounty Comm'n (4th Cir. 2011) • Upheld denial of conditional use permit – "Once again we decline the invitation to turn federal courts into clearinghouses for alleged constitutional violations that in fact are only the routine and routinely contentious disagreements arising out of local permitting decisions."
- 9. Lessons Learned • Sloppy proof favors municipalities • Granting approval for smaller, same-type development saves taking challenge every time
- 10. Bettendorf v. St.Croix County (7th Cir. 2011) • Upheld rescinding commercial zoning – "The County's decision to revoke the commercial designation can hardly be considered conscious- shocking or arbitrary.“ – "Where a claimant has availed himself of the remedies guaranteed by state law, due process is satisfied unless he can show that such remedies were inadequate."
- 11. Lessons Learned • No taking if there is still some use of the property • Good case to read on vested rights, though they were not respected here
- 12. Maverick Enters., LLCv. Frings (11th Cir. 2012) • Failed “class of one” claim
- 13. Lessons Learned • In disparate treatment cases make specific allegations not general ones
- 14. Lindquist v. Cityof Pasadena (5th Cir. 2012) • Failed “class of one claim” – Role of “comparators”
- 15. Lessons Learned • In "class of one" litigation comparators must truly be comparable
- 16. Harmon v. Kimmel (U.S. 2012) • NYC rent control…Kelo ripple
- 17. Lessons • Revisit what Kelo Learned requires: – A plan – Public process – Legislative decision – Enforcement
- 18. Arkansas Game &Fish Commission v. United States (pending U.S. 2012) • Flooding physical taking case
- 19. Lessons Learned • Consider all impacts of stormwater controls
- 20. DeCook v. RochesterInternational Airport (Minn. 2011) • Taking found – May be the state constitution – Always save value
- 21. Lessons Learned • State constitutional takings claims can sometimes provide more room for recovery than federal claims
- 22. St. Johns RiverManagement District v. Koontz (Fla. 2011) • Nollan and Dolan – not settled law
- 23. Lessons • Extending Nollan and Learned Dolan beyond required land dedications may be difficult – At least when the plaintiff is named Koontz and not Kollan!
- 24. Hilton Head Automotivev. S.C. DOT (S.C. 2011) • Impact minimal, not compensable
- 25. Lessons Learned • Reasonable use negates a taking • New median strip alone does not effect a taking on facts showing U-turn alternative
- 26. West Linn CorporatePark LLC v. City of West Linn (9th Cir. 2011) • No dedication to the public, no taking
- 27. Lessons • Off-site improvements may Learned be subject to a different legal standard than on-site • Off-site exactions do not implicate Nollan or Dolan, which were about on-site land dedications
- 28. Severance v. Patterson (Texas 2012) • Is a rolling easement a taking?
- 29. Lessons Learned • Final word on real property law is state not federal law
- 30. Borough of HarveyCedars v. Karan (NJ App 2012) • Dune diminished value; compensable
- 31. Lessons • When dune adds to Learned general safety but destroys specific view government pays
- 32. Kiawah Dev. Partnersv. S.C. Dep't of Health & Envtl. Control (S.C. 2011), rehearing granted (2012) • Bulkhead not permissible
- 33. Lessons Learned • Jurisdictional issues are difficult and should be resolved early
- 34. HNS Development v.People’s Counsel for Baltimore County (MD. 2012) • Role of the comprehensive plan
- 35. Lessons Learned • Nonconformity with the master plan can be an independent basis for denying a site development plan…in Maryland
- 36. Wastewater One, LLCv. Floyd County Board of Zoning Appeals (Ind. 2011) • The plan is a “tool to guide and management growth and development” • Fact-driven
- 37. Lessons • If a statute gives a municipality broad Learned discretion in land use matters, courts may be reluctant to infringe on that, at least where nothing egregious has been done
- 38. Borough of Sayrevillev. 35 Club LLC (NJ 2012) • Adult entertainment – may consider “neighboring communities”
- 39. Lessons • Some First Amendment rights may be more Learned protected than other First Amendment rights • Some State residents may have to go out- of-state to enjoy their State-protected rights
- 40. Peterson v. Cityof Florence (D.Minn. 2011) • Adult entertainment with no commercial zoning
- 41. Lessons • Unique facts sometimes lead to Learned unique decisions, especially in really small towns • Sexy case with quotable quotes upholds content neutral/in the public interest ban on all business uses in a very small city
- 42. Anschutz Exploration Corp.v. Town of Dryden (N.Y. Sup. 2012) • Local regulation of fracking
- 43. Lessons • Regulating land use is different than regulating the Learned operations • State preemption hangs on close reading of related state statutes and their history, words and meanings in law challenged, and what local code regulates or prohibits
- 44. Cooperstown Holstein Corp.v Town of Middlefield (N.Y. Sup. 2012) • Another local regulation of fracking case Cooperstown Holsteins (Jennifer Huntington and Eric Watson) leased the mineral rights on 394 acres of their Otsego County, N.Y.
- 45. Lessons Learned • Local regulation should address locations, not policies and procedures of state regulated industries
- 46. Hoffman Mining Co.v. Zoning Hearing Bd. (PA. 2011) • Fracking – state didn’t preempt local
- 47. Lessons Learned • To avoid pre-emption claim make good record of unique local conditions
- 48. Green Building Codes • What are local issues? • To LEED or not to LEED? • What is relationship to good planning? • Do you have the resources to manage the code?
- 49. Lessons Learned • Ordinances incorporating Green Standards could leave planners red- faced or black and blue
- 50. Telecommunications Act • Federalzoning • “Shot Clock” requirement • “Denial of Service” v. local zoning
- 51. Lessons • FCC Shot Clock rule says 90 to 150 days is Learned enough to decide unless municipality can explain why • Provider must show lack of service and no alternatives or denial will be sustained
- 52. Centro Familiar CristanoBuenas Nuevas v. City of Yuma (9th Cir. 2011) • RLUIPA equal terms case
- 53. Lessons Learned • Treat religious uses like any other place of public assembly
- 54. Guatay Christian Fellowshipv. County of San Diego (9th Cir. 2011) • RLUIPA ripeness
- 55. Lessons Learned • At the very least, a claimant has to make at least one real application for the use – To know the “finalized, particularized burden”
- 56. International Church ofthe Foursquare Gospel v. City of San Leandro (9th Cir. 2011) • Avoiding a substantial burden
- 57. Lessons • Evidence need only Learned be more than a “mere…scintilla of evidence” to get to trial • Are suitable properties available?
- 58. Questions and, we hope, some answers…