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2016 Land Use LawThursday, October 20, 2016

John BoehnertPamela J. Brown, FAICP

Greg McGregorDwight Merriam, FAICP

Marjorie ShanskyKathleen O’Donnell

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Our Speakers

John BoehnertLaw Offices of John M. Boehnert, Esq., Providence

Pamela J. Brown, FAICPBrown & Brown, PC, Bedford

Greg McGregorMcGregor & Associates, P.C., Boston

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Our SpeakersDwight Merriam, FAICP

Robinson & Cole LLP, Hartford

Kathleen M. O’Donnell Law Offices of Kathleen M. O’Donnell, Milton

Marjorie ShanskyMarjorie Shansky Attorney at Law, New Haven

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Fast paced, national perspective,

lessons learned…

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City of Longmont v. Colorado Oil and Gas Association

(Colo. 2016)

• Home-Rule Community Ordinance Banned Fracking.

• State Statute Regulated Oil and Gas Production.

• Court Invalidated Ordinance Based On Operational Preemption.

• Ordinance Frustrated State Regulation of a Mixed State/Local Issue.

Lessons Learned• If an ordinance under

consideration locally could conflict with state law, particularly where there is already tension between state and local interest, take special care to narrowly tailor the local law.

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Kuehl v. Sellner(N.D. Iowa 2016)

• Plaintiffs sued

nonprofit zoo under the Endangered Species Act.

• Claimed a taking of tigers and lemurs by inadequate treatment

• Court found plaintiffs had injury in fact by harm to their aesthetic interest.

• Court found harm and harassment constituting a taking.

• Inadequate sanitation, environmental enrichment, housing and veterinary care.

• Animals ordered moved .to other facilities.

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Lessons Learned• Municipalities operating

zoos and other animal attractions must ensure proper treatment of animals, particularly if dealing with listed endangered species.

IT’S A JUNGLE OUT THERE!

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The RDM Trust v. Town of Milford(N.H. 2016)

• Deck without a permit .• Abutter complained;

building Inspector issued a violation.

• Application filed after the fact.

• Survey showed it in the side yard setback.

• ZBA granted relief based on honest mistake, but …

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Lessons Learned

• Court will not set aside findings of the ZBA absent errors of law, unless decision unreasonable.

• Document Board Findings. • Despite strong deferral to

board’s discretion, can’t always support owner making mistake.

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Almeida v. Arruda (Westport ZBA)(Mass.App. 2016)

• Modification of Non-Conforming Use -- convenience store in Residential zoning district.

• Seek to expand into additional commercial space and add wine & beer sales.

• Adding beer & wine does not change the nature and purpose of the prior use.

• 12% of total sales area does not constitute a different quality, character or degree of use.

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Lessons Learned

• Massachusetts 1973 Powers 3-prong test.

• Cases turn on the facts. • A defensible decision

will rest on the facts and application of the facts to the legal test.

• Cases define fine-line distinctions.

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Kirby v. North Carolina Department of Transportation (NC 2016)

• Recording of a Highway Corridor Map land bank prevented plaintiffs from improving, developing, and subdividing their property for an unlimited period of time.

• Held: taking of property rights by eminent domain, not police power; remanded for trial on damages .

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Lessons Learned• Saving highway

development costs is laudable, but may trigger inverse condemnation claim.

• The NCDOT’s Map Act imposed indefinite restraints on fundamental property rights.

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California Bldg. Indus. Ass’n v. City of San Jose, Calif.(US 2016) (cert denied)

• City housing ordinance required a minimum of 15% low-income units in all new residential developments with 20 or more units—restriction to be in place for 45 years.

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Lessons Learned• Does Nollan/Dolan test

apply to legislative decisions? Unsettled.

• Justice Thomas concurrence:

“I continue to doubt that the existence of a taking should turn on the type of governmental entity responsible for the taking.”

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Melrose Fish and Game Club v. Tennessee Gas Pipeline Company

(Mass. App. 2016)

• Club owns three lots abutting a street; gas company constructed a facility cutting off Club’s access to a public way.

• Easement by estoppel extends over the entire length of the way.

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Lessons Learned

• Easements by estoppel extend the whole length of the way, whether paved or not.

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Murray v. Department of Conservation and Recreation

(Mass. 2016)

• Property owners sought to quiet title to a railroad easement.

• Argued that failure to transfer lines to Conrail constituted abandonment.

• Land Court dismissed for lack of jurisdiction – need actual Certificate of Abandonment.

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Lessons Learned

• Non-use of the rail line does not terminate the easement.

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Lake Oswego Preservation Society v. City of Lake Oswego

(Or. 2016)

Carman House (1856) “Then” circa 1920

• Carman House oldest house. • Designated Landmark

without owner’s consent. • Subsequent Owner objects • Issue: to which “owner” does

the dispute right attach?

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Lessons Learned

• Statutory Construction are the least desirable way to find our what statutes “mean”.

• Take care when drafting laws and regulations.

• Definitions may provide clarity, even for “commonly” understood words.

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Homeless Helping Homeless, Inc. v. City of Tampa, Florida

(USDC MD Fl. 2016)

• Municipal ban on solicitation of “donations or payment”.

• Exception - solicitations that only involve holding a sign.

• HHH challenges: “content-based”.

• See Reed v. Gilbert (US 2015)

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Lessons Learned

• Soliciting protected by the First Amendment.

• A “traditional public forum.”

• Ordinance content-based.

• Presumptively unconstitutional.

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Buehrle v. City of Key West (11th Cir. 2015)

• A Key West Ordinance prohibited Tattoo Parlors in the Historic District.

• Owner claimed First Amendment violation.

• Held: “art of tattooing” protected speech.

• Ordinance was content neutral.

• No evidence law served a significant governmental interest.

• City need not present much but must show some evidence supporting purpose.

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Lessons Learned• Getting rid of an

ordinance is apparently a lot easier than getting rid of a tattoo!

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Macdonough v. Spaman, et. al. (D. NY 2016)

• Suit against town for punitive enforcement of zoning ordinance

• Owner bought and stored heavy equipment in reliance

• Neighbors complained

• Enforcement; pressure from the top

• Owner wins in court; town renewed criminal prosecution

• Court allowed claims for: malicious prosecution, class of one selective enforcement; retaliation; abuse of process

• Now in mediation!

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Lessons Learned• If you are a planner, land

use official, or zoning enforcement officer; or if you supervise planners, land use officials, or zoning enforcement officers, we suggest you stop showing up for work—it is simply too hazardous!

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Cherry v. Weisner(NC 2016)

• Cherry’s HDC approval of a home in the Oakwood historic district appealed by neighbor to Board of Adjustment which rejected modernist design for home. NC Superior Court reversed, Appeals Ct. affirmed.

• How did it get this far?

http://www.ncmodernist.org/2014oakwood.htm

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Lessons Learned

• Decided on standing. • In NC, like elsewhere, an

“aggrieved person” must claim special damages, distinct from the rest of the community.

• Need to demonstrate jurisdiction/standing early.

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U.S. ex rel. TVA v. 1.72 Acres• TVA condemnation

action for power line easement over agricultural field.

• Landowner’s expert testimony inadmissible.

• Property owner’s claims based on speculation, property was not zoned and no evidence of market for hotel were presented.

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Lessons Learned

• To succeed, testimony must be supported by non-speculative evidence.

• Ideas and opinions have no monetary value unless there’s a certifiable market.

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Assateague Coastal Trust, Inc. v. Schwalbach(Md. 2016)

• Riparian owner who proved he could not exercise traditional riparian benefits granted variance for a pier through a marsh designated as a Critical Area.

• Environmental group challenged.

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Lessons Learned• “Unwarranted hardship”

not as strict as a “constitutional taking” standard.

• Hardship means “without [a] variance, the applicant is denied ‘a reasonable and significant use’ that cannot be accomplished somewhere else on the property.”

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In re Rutland Renewable Energy, LLC

(Vt 2016)

• Solar energy provider sought certificate of public good.

• Town and abutters appealed, arguing that project would interfere with development of the region, have an undue adverse effect on aesthetics, and have an undue adverse impact on historic sites.

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Lessons Learned• Opponents did not

prove their case. • Newer regulations not

retroactive; Town has no zoning, no zoning standards; plan shows industrial/commercial.

• Good discussion of “regional impact”.

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Caruso v. City of Meriden(Conn. 2016)

• Application for a use variance for used car lot.

• Argued no economic value of the property as zoned.

• Alleged “competitive disadvantage” not a hardship.

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Lessons Learned

• Just arguing that property was at a “competitive disadvantage” is not an unusual hardship or extraordinary difficulty that justifies a variance.

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Francini v. Goodspeed Airport, LLC(Conn. App. 2016)

• Only access to plaintiff’s property is over right of way on airport’s land.

• Deed grants passageway rights.

• Plaintiff asked court to expand access to include right to utilities.

• Easement by necessity may change over time – and are not limited to just rights of access.

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Lessons Learned

• Easements by necessity should include whatever rights necessary for the reasonable use of the property.

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Hackensack Riverkeeper v. New Jersey Department of Environmental Protection

(NJ 2016)

• New Jersey DEP’s “Public Access Rules” “not statutorily authorized and therefor invalid”.

• DEP exceeded its authority over public access to beaches and other tidal waterways.

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Lessons Learned• Under the Public Trust

Doctrine, the State holds “ownership, dominion and sovereignty” over tidally flowed lands and delegates broad authority to municipalities.

• No basis for a DEP preemption over municipality’s operation of its beaches.

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Alternative Dispute Resolution• Statutorily permitted, not widely used.– Conn. Gen. Stat. §8-8(m)– Mass. Rule 1:18– Uniform Rules on Dispute Resolution (Note: Fanning)– R.I. Small Claims

• Mediation option.• Does/should the Traditional Decision-MakingProcess permit for more collaborationin avoidance of conflict?

© The Simpsons

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Lessons Learned

• Getting past positions to discussing interests can neutralize or narrow conflict.• Listening is not a passive

activity.• Life is short.

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Questions and, we hope,

some answers…