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SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
SNEAPA 2013 Thursday c1 1_45_land use law
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SNEAPA 2013 Thursday c1 1_45_land use law

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2013 Land Use Law

2013 Land Use Law

Published in: Real Estate
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  1. 2013 Land Use Law Thursday, October 17, 2013 John Boehnert Greg McGregor Dwight Merriam, FAICP Edward V. O’Hanlan 1
  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 Edward V. O’Hanlan Robinson & Cole LLP, Stamford 2
  3. Fast paced, national perspective, lessons learned… 3
  4. St. Johns River Management District v. Koontz (U.S. 2013) • Extended Nollan and Dolan – For denials – For money 4
  5. Lessons Learned • Be careful how impact fees and other exactions are handled – must meet essential nexus and rough proportionality tests 5
  6. Borough of Harvey Cedars v. Karan (NJ 2013) Dune diminished value; compensable; valuation question; settled 6
  7. Lessons Learned • When dune adds to general safety but destroys specific view government pays, but may be offset by public benefit 7
  8. Tarrant Regional Water District v. Herrmann ( U.S. 2013) Interstate water compact between Arkansas, Louisiana, Oklahoma, and Texas did not preempt an Oklahoma state statute or violate the Commerce Clause
  9. Lessons Learned • States do not easily give up their sovereign powers • Red River Compact’s silence on cross border rights = understanding that the Compact would respect state water laws 9
  10. Arkansas Game and Fish Commission v. U.S. (U.S. 2012) ACOE deviated from dam water release rates, flooded and destroyed the downstream property; no temporary flooding exception to the Takings Clause
  11. Lessons Learned • All takings claims are case-specific inquiries • Government-induced flooding is no different than any other governmental intrusion on property • Compensation may be sought for temporary takings 11
  12. Roman Catholic Bishop of Springfield v. City of Springfield (1ST Cir. 2013) • Diocese challenges historic landmark designation as violation under RLUIPA, U.S. Constitution, and state law • RLUIPA “substantial burden” was issue of first impression
  13. Lessons Learned • “Facial” challenge versus “as-applied” challenge • Feared injury not enough to establish ripeness in this case (as-applied) • Different circuits have different tests 13
  14. Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach (11TH Cir. 2013) • Moratorium to prevent demolition of Temple building • Temple sues under RLUIPA, U.S. Constitution & state law
  15. Lessons Learned • “Williamson County is inappropriate because the injury is complete upon the municipality’s initial act, and staying our hand would do nothing further but perpetuate the plaintiff’s alleged injury.” 15
  16. Horne v. Dept. of Agric. (U.S. 2013) I heard it on the grapevine… Agricultural Marketing Act of 1937 16
  17. Lessons Learned • Fifth Amendment takings claim can be a defense, without seeking damages • ZEOs and ZBAs pay attention 17
  18. Norse Energy Corp. v. Town of Dryden (N.Y. App. Div. 2013) Local regulation of fracking 18
  19. Lessons Learned • On politically controversial subjects, municipaliti es may find more authority conferred on them by courts if they are sailing with the wind • Translation: preemption law may be subsumed by politics 19
  20. Bartlett v. City of Manchsetser (NH 2013) Variance case, but unnecessary; accessory use 20
  21. Lessons Learned • ALWAYS explore any alternative to a variance application • Pursuing a variance does not preclude arguing or finding a valid accessory use, at least in New Hampshire! 21
  22. Severance v. Patterson (Texas 2012 and 5th Cir. 2012) Texas Supreme Court: no “rolling easement” then U.S. Court of Appeals for trial of pending property rights claims
  23. Lessons Learned • Know laws about accretion, reliction, a nd avulsion • In Mass. reserved public rights • People will sue about anything if it involves valuable waterfront • Your guess is as good as mine…this is Texas 23
  24. David Hill Development, LLC v. City of Forest Grove (D. Or. 2013) $6.5 million in damages for an “abuse of power” and violation of the Takings Clause by unlawful delay of a housing project
  25. Lessons Learned • Delay caused a temporary taking • “Compelled dedication of easements across private property” different than on-site improvements as a condition of approval 25
  26. Lessons Learned • No injunction, bar not likely to win • Avoid contentbased regulation • You can regulate state of dress 26
  27. Iowa League of Cities v. Environmental Protection Agency (8th Cir. 2013) Scope of regulatory authority of a federal administrative agency; legislative rules not interpretative guidelines 27
  28. Lessons Learned • Over-reaching by regulators evidenced in written communications may be challengeable as invalid rulemaking if in fact they are threatening enforcement of standards that exceed promulgated rules and regulations 28
  29. Town of Hollywood v. Floyd (SC 2013) Residential subdivision case…gone wrong 29
  30. Lessons Learned • If you are a developer, stay out of Hollywood, South Carolina. 30
  31. Candlehouse, Inc. v. Town of Vestal (NDNY 2013) Faith-based rehabilitation center sues the Town under RLUIPA, the FHA, and the ADA after the Town denies request to accommodate temporary housing as family/functional equivalent
  32. Lessons Learned • 2d Cir. Substantial Burden Test: “a government action . . . [that] coerces the religious institution to change its behavior.” • Where not all patrons disabled, must demonstrate majority are disabled to obtain relief under the FHA and ADA 32
  33. Brown v. Town of Cary (4TH Cir. 2013) “Screwed” homeowner upset with municipal road-paving projects, refuses to take down “sign,” sues, wins at District Court, and loses on appeal
  34. Lessons Learned • Three Part Content Neutrality Test: – not a regulation of speech – regulation not adopted because of disagreement – government’s interests in the regulation are unrelated 34
  35. Kiawah Dev. Partners v. S.C. Dep't of Health & Envtl. Control (SC 2013) Partial denial by DHEC; the Administrative Law Court approved the partial permit issued by DHEC, with modifications; upheld by the S.C. Supreme Court
  36. Lessons Learned • On March 14, 2013 the Appellant, South Carolina Coastal Conservation League, petitioned for rehearing, which was granted • Stay tuned… 36
  37. Final Compensatory Mitigation Rule (EPA Wetlands Rule) EPA and the Army Corps of Engineers launched new standards in order to promote “no net loss of wetlands”
  38. Lessons Learned • “Avoid, minimize and compensate” • Restoration, establishment, enhancement, and preservation • Innovation and use of best available science • Promote public participation and planning 38
  39. Shockoberfest (Sinking Spring Borough, PA) When is a “scream house” something more than a pop-up Halloween attraction? 39
  40. Lessons Learned • Never ending battle to get out ahead of pop-ups and new uses • Spend some time on “what if” thinking • Take a hard look at definitions 40
  41. Lamar Adv. v. Zoning Bd. of Appeals (South Dakota 2012) Does permission to use one side of sign for digital face allow using the other side as well?
  42. Lessons Learned • Know what the permit allows and what the agency has allowed…it may have granted more than it thought… 42
  43. RIYA Cranbury Hotel v. Zoning Bd. of Adjustment (NJ App. Div. 2013) Is an “iconic” architectural feature attached to the hotel’s parapet referred to as “the blade” an architectural feature or a sign?
  44. Lessons Learned • Structure harmoniously blended into framework of building may not be a sign 44
  45. Questions and, we hope, some answers… 45

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