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…