2012 Land Use Law Thursday, September 20, 2012 John Boehnert Greg McGregor Dwight Merriam, FAICP Brian Smith
Our Speakers John BoehnertLaw 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
Fast paced,national perspective, lessons learned…
Armour v. Indianapolis (U.S. 2012)• Equal Protection Clause – You can treat paying and nonpaying landowners differently
Lessons • If it is only money atLearned issue, it may be hard for a government to be so “ irrational” as to be unconstitutional under the Equal Protection Clause
Bowers v. Whitman (9th Cir. 2012)• Substantive Due Process – Rational basis enough – Economic rights are not fundamental rights
Lessons • It is often difficult to find that rights have vested sufficiently toLearned 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 Commn (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."
LessonsLearned • Sloppy proof favors municipalities • Granting approval for smaller, same-type development saves taking challenge every time
Bettendorf v. St. Croix County (7th Cir. 2011)• Upheld rescinding commercial zoning – "The Countys 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."
LessonsLearned • 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 (11th Cir. 2012)• Failed “class of one” claim
LessonsLearned • 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”
LessonsLearned • In "class of one" litigation comparators must truly be comparable
Harmon v. Kimmel (U.S. 2012)• NYC rent control…Kelo ripple
Lessons • Revisit what KeloLearned requires: – A plan – Public process – Legislative decision – Enforcement
Arkansas Game & Fish Commission v. United States (pending U.S. 2012)• Flooding physical taking case
LessonsLearned • Consider all impacts of stormwater controls
DeCook v. Rochester International Airport (Minn. 2011)• Taking found – May be the state constitution – Always save value
LessonsLearned • State constitutional takings claims can sometimes provide more room for recovery than federal claims
St. Johns River Management District v. Koontz (Fla. 2011) • Nollan and Dolan – not settled law
Lessons • Extending Nollan andLearned Dolan beyond required land dedications may be difficult – At least when the plaintiff is named Koontz and not Kollan!
Hilton Head Automotive v. S.C. DOT (S.C. 2011)• Impact minimal, not compensable
LessonsLearned • 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. City of West Linn (9th Cir. 2011)• No dedication to the public, no taking
Lessons • Off-site improvements mayLearned 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 (Texas 2012)• Is a rolling easement a taking?
LessonsLearned • Final word on real property law is state not federal law
Borough of Harvey Cedars v. Karan (NJ App 2012)• Dune diminished value; compensable
Lessons • When dune adds toLearned general safety but destroys specific view government pays
Kiawah Dev. Partners v. S.C. Dept of Health & Envtl. Control (S.C. 2011), rehearing granted (2012)• Bulkhead not permissible
LessonsLearned • Jurisdictional issues are difficult and should be resolved early
HNS Development v. People’s Counsel for Baltimore County (MD. 2012)• Role of the comprehensive plan
LessonsLearned • Nonconformity with the master plan can be an independent basis for denying a site development plan…in Maryland
Wastewater One, LLC v. Floyd County Board of Zoning Appeals (Ind. 2011)• The plan is a “tool to guide and management growth and development”• Fact-driven
Lessons • If a statute gives a municipality broadLearned 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 (NJ 2012)• Adult entertainment – may consider “neighboring communities”
Lessons • Some First Amendment rights may be moreLearned 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 (D.Minn. 2011)• Adult entertainment with no commercial zoning
Lessons • Unique facts sometimes lead toLearned 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. Town of Dryden (N.Y. Sup. 2012)• Local regulation of fracking
Lessons • Regulating land use is different than regulating theLearned 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 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.
LessonsLearned • Local regulation should address locations, not policies and procedures of state regulated industries
Hoffman Mining Co. v. Zoning Hearing Bd. (PA. 2011)• Fracking – state didn’t preempt local
LessonsLearned • To avoid pre-emption claim make good record of unique local conditions
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?
LessonsLearned • Ordinances incorporating Green Standards could leave planners red- faced or black and blue
Telecommunications Act• Federal zoning• “Shot Clock” requirement• “Denial of Service” v. local zoning
Lessons • FCC Shot Clock rule says 90 to 150 days isLearned 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 Nuevas v. City of Yuma (9th Cir. 2011)• RLUIPA equal terms case
LessonsLearned • Treat religious uses like any other place of public assembly
Guatay Christian Fellowship v. County of San Diego (9th Cir. 2011)• RLUIPA ripeness
LessonsLearned • 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 Foursquare Gospel v. City of San Leandro (9th Cir. 2011)• Avoiding a substantial burden
Lessons • Evidence need onlyLearned be more than a “mere…scintilla of evidence” to get to trial • Are suitable properties available?