land use law
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2012 Land Use Law2012 Land Use LawThursday, September 20, 2012
John BoehnertGreg McGregor
Dwight Merriam, FAICPBrian Smith
Our SpeakersOur SpeakersJohn Boehnert
Law Offices of John M. Boehnert, Esq., Providence
Greg McGregorMcGregor & Associates, P.C.
Dwight Merriam, FAICPRobinson & Cole LLP, Hartford
Brian SmithRobinson & Cole LLP, Hartford
Fast paced, Fast paced, national perspective, national perspective,
lessons learned…lessons learned…
Armour v. Indianapolis Armour v. Indianapolis (U.S. 2012)
• Equal Protection Clause– You can treat paying and nonpaying landowners
differently
Lessons Lessons
LearnedLearned • If it is only money at issue, it may be hard for a government to be so “ irrational” as to be unconstitutional under the Equal Protection Clause
Bowers v. Whitman Bowers v. Whitman (9th Cir. 2012)
• Substantive Due Process– Rational basis enough– Economic rights are not fundamental rights
Lessons Lessons
LearnedLearned• It is often difficult to
find that rights have vested sufficiently to 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
Henry v. Jefferson County Comm'nHenry v. Jefferson County 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."
Lessons Lessons
LearnedLearned • Sloppy proof favors municipalities
• Granting approval for smaller, same-type development saves taking challenge every time
Bettendorf v. St. Croix County 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."
Lessons Lessons
LearnedLearned • No taking if there is still some use of the property
• Good case to read on vested rights, though they were not respected here
Maverick Enters., LLC v. Frings Maverick Enters., LLC v. Frings (11th Cir. 2012)
• Failed “class of one” claim
Lessons Lessons
LearnedLearned • In disparate treatment cases make specific allegations not general ones
Lindquist v. City of Pasadena (5th Cir. 2012)
• Failed “class of one claim” – Role of “comparators”
Lessons Lessons
LearnedLearned • In "class of one" litigation comparators must truly be comparable
Harmon v. Kimmel (U.S. 2012)
• NYC rent control…Kelo ripple
Lessons Lessons
LearnedLearned • Revisit what Kelo requires:– A plan– Public process– Legislative decision – Enforcement
Arkansas Game & Fish Arkansas Game & Fish Commission v. United States Commission v. United States
(pending U.S. 2012)
• Flooding physical taking case
Lessons Lessons
LearnedLearned • Consider all impacts of stormwater controls
DeCook v. DeCook v. Rochester International Airport Rochester International Airport
(Minn. 2011)
• Taking found– May be the state constitution– Always save value
Lessons Lessons
LearnedLearned • State constitutional takings claims can sometimes provide more room for recovery than federal claims
St. Johns River Management District St. Johns River Management District v. Koontz v. Koontz
(Fla. 2011)
• Nollan and Dolan – not settled law
Lessons Lessons
LearnedLearned• Extending Nollan and
Dolan beyond required land dedications may be difficult– At least when the
plaintiff is named Koontz and not Kollan!
Hilton Head Automotive v. Hilton Head Automotive v. S.C. DOT S.C. DOT
(S.C. 2011)
• Impact minimal, not compensable
Lessons Lessons
LearnedLearned • Reasonable use negates a taking
• New median strip alone does not effect a taking on facts showing U-turn alternative
West Linn Corporate Park LLC v. West Linn Corporate Park LLC v. City of West LinnCity of West Linn
(9th Cir. 2011)
• No dedication to the public, no taking
Lessons Lessons
LearnedLearned• Off-site
improvements may 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
Severance v. Patterson Severance v. Patterson (Texas 2012)
• Is a rolling easement a taking?
Lessons Lessons
LearnedLearned • Final word on real property law is state not federal law
Borough of Harvey Cedars v. Borough of Harvey Cedars v. Karan Karan
(NJ App 2012)• Dune diminished value; compensable
Lessons Lessons
LearnedLearned • When dune adds to general safety but destroys specific view government pays
Kiawah Dev. Partners v. S.C. Dep't Kiawah Dev. Partners v. S.C. Dep't of Health & Envtl. Controlof Health & Envtl. Control
(S.C. 2011), rehearing granted (2012)
• Bulkhead not permissible
Lessons Lessons
LearnedLearned • Jurisdictional issues are difficult and should be resolved early
HNS Development v. People’s HNS Development v. People’s Counsel for Baltimore County Counsel for Baltimore County
(MD. 2012)
• Role of the comprehensive plan
Lessons Lessons
LearnedLearned • Nonconformity with the master plan can be an independent basis for denying a site development plan…in Maryland
Wastewater One, LLC v. Floyd Wastewater One, LLC v. Floyd County Board of Zoning Appeals County Board of Zoning Appeals
(Ind. 2011)
• The plan is a “tool to guide and management growth and development”
• Fact-driven
Lessons Lessons
LearnedLearned• If a statute gives a
municipality broad discretion in land use matters, courts may be reluctant to infringe on that, at least where nothing egregious has been done
Borough of Sayreville v. 35 Club LLC Borough of Sayreville v. 35 Club LLC
(NJ 2012)
• Adult entertainment – may consider “neighboring communities”
Lessons Lessons
LearnedLearned
• Some First Amendment rights may be more protected than other First Amendment rights
• Some State residents may have to go out-of-state to enjoy their State-protected rights
Peterson v. City of Florence Peterson v. City of Florence (D.Minn. 2011)
• Adult entertainment with no commercial zoning
Lessons Lessons
LearnedLearned• Unique facts
sometimes lead to 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
Anschutz Exploration Corp. v. Anschutz Exploration Corp. v. Town of Dryden Town of Dryden
(N.Y. Sup. 2012)
• Local regulation of fracking
Lessons Lessons
LearnedLearned
• Regulating land use is different than regulating the 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
Cooperstown Holstein Corp. v Cooperstown Holstein Corp. v Town of Middlefield Town of Middlefield
(N.Y. Sup. 2012)(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.
Lessons Lessons
LearnedLearned • Local regulation should address locations, not policies and procedures of state regulated industries
Hoffman Mining Co. v. Hoffman Mining Co. v. Zoning Hearing Bd. Zoning Hearing Bd.
(PA. 2011)
• Fracking – state didn’t preempt local
Lessons Lessons
LearnedLearned • To avoid pre-emption claim make good record of unique local conditions
Green Building CodesGreen 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?
Lessons Lessons
LearnedLearned • Ordinances incorporating Green Standards could leave planners red-faced or black and blue
Telecommunications ActTelecommunications Act
• Federal zoning• “Shot Clock” requirement• “Denial of Service” v. local zoning
Lessons Lessons
LearnedLearned• FCC Shot Clock rule
says 90 to 150 days is enough to decide unless municipality can explain why
• Provider must show lack of service and no alternatives or denial will be sustained
Centro Familiar Cristano Buenas Centro Familiar Cristano Buenas Nuevas v. City of Yuma Nuevas v. City of Yuma
(9th Cir. 2011)
• RLUIPA equal terms case
Lessons Lessons
LearnedLearned• Treat religious uses
like any other place of public assembly
Guatay Christian Fellowship v. Guatay Christian Fellowship v. County of San Diego County of San Diego
(9th Cir. 2011)
• RLUIPA ripeness
Lessons Lessons
LearnedLearned • At the very least, a claimant has to make at least one real application for the use– To know the
“finalized, particularized burden”
International Church of the International Church of the Foursquare Gospel v. City of San Foursquare Gospel v. City of San
Leandro Leandro (9th Cir. 2011)
• Avoiding a substantial burden
Lessons Lessons
LearnedLearned• Evidence need only
be more than a “mere…scintilla of evidence” to get to trial
• Are suitable properties available?
Questions and, Questions and, we hope, we hope,
some answers…some answers…
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