2016 Land Use Law Thursday, October 20, 2016

John Boehnert

Pamela J. Brown, FAICP Greg McGregor

Dwight Merriam, FAICP Marjorie Shansky

Kathleen O’Donnell

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Our Speakers

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

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

Greg McGregor McGregor & Associates, P.C., Boston

Our Speakers

Dwight Merriam, FAICP Robinson & Cole LLP, Hartford

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

Marjorie Shansky Marjorie 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.

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• 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 …

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.

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.

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

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?

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

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-Making Process permit for more collaboration in 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…

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