SNEAPA 2013 Thursday c1 1_45_land use law

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2013 Land Use LawThursday, October 17, 2013

John BoehnertGreg McGregor

Dwight Merriam, FAICPEdward V. O’Hanlan

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Our SpeakersJohn Boehnert

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

Greg McGregorMcGregor & Associates, P.C.

Dwight Merriam, FAICPRobinson & Cole LLP, Hartford

Edward V. O’HanlanRobinson & Cole LLP, Stamford

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Fast paced, national perspective,

lessons learned…

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St. Johns River Management District v. Koontz

(U.S. 2013)

•Extended Nollan and Dolan

–For denials–For money

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Lessons

Learned •Be careful how impact fees and other exactions are handled – must meet essential nexus and rough proportionality tests

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Borough of Harvey Cedars v. Karan (NJ 2013)

Dune diminished value; compensable; valuation question; settled

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Lessons

Learned •When dune adds to general safety but destroys specific view government pays, but may be offset by public benefit

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

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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

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

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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

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

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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

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

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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.”

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Horne v. Dept. of Agric.(U.S. 2013)

I heard it on the grapevine…Agricultural Marketing Act of 1937

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Lessons

Learned •Fifth Amendment takings claim can be a defense, without seeking damages•ZEOs and ZBAs pay

attention

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Norse Energy Corp. v. Town of Dryden

(N.Y. App. Div. 2013)

Local regulation of fracking

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Lessons

Learned

•On politically controversial subjects, municipalities may find more authority conferred on them by courts if they are sailing with the wind•Translation:

preemption law may be subsumed by politics

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Bartlett v. City of Manchsetser(NH 2013)

Variance case, but unnecessary; accessory use

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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!

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

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Lessons

Learned• Know laws about

accretion, reliction, and 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

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

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Lessons

Learned• Delay caused a

temporary taking• “Compelled

dedication of easements across private property” different than on-site improvements as a condition of approval

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Lessons

Learned •No injunction, bar not likely to win•Avoid content-

based regulation•You can regulate

state of dress

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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

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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

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Town of Hollywood v. Floyd(SC 2013)

Residential subdivision case…gone wrong

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Lessons

Learned•If you are a

developer, stay out of Hollywood, South Carolina.

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

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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

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

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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

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

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Lessons

Learned• On March 14, 2013

the Appellant, South Carolina Coastal Conservation League, petitioned for rehearing, which was granted• Stay tuned…

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”

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Lessons

Learned• “Avoid, minimize and

compensate”• Restoration,

establishment, enhancement, and preservation • Innovation and use of

best available science• Promote public

participation and planning

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Shockoberfest(Sinking Spring Borough, PA)

When is a “scream house” something more than a pop-up Halloween attraction?

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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

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?

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Lessons

Learned •Know what the permit allows and what the agency has allowed…it may have granted more than it thought…

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?

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Lessons

Learned •Structure harmoniously blended into framework of building may not be a sign

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Questions and, we hope,

some answers…