1. 2012 Land Use Law
Thursday, September 20, 2012
John Boehnert
Greg McGregor
Dwight Merriam, FAICP
Brian Smith

2. Our Speakers
John Boehnert
Law 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

3. Fast paced,
national perspective,
lessons learned…

4. Armour v. Indianapolis
(U.S. 2012)
• Equal Protection Clause
– You can treat paying and nonpaying landowners
differently

5. Lessons
• If it is only money at
Learned issue, it may be hard
for a government to
be so “ irrational” as
to be
unconstitutional
under the Equal
Protection Clause

6. Bowers v. Whitman
(9th Cir. 2012)
• Substantive Due Process
– Rational basis enough
– Economic rights are not fundamental rights

7. Lessons
• It is often difficult to
find that rights have
vested sufficiently to
Learned 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

8. Henry 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."

9. Lessons
Learned • Sloppy proof favors
municipalities
• Granting approval for
smaller, same-type
development saves
taking challenge
every time

10. 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."

11. Lessons
Learned • No taking if there is
still some use of the
property
• Good case to read on
vested rights, though
they were not
respected here

12. Maverick Enters., LLC v. Frings
(11th Cir. 2012)
• Failed “class of one” claim

13. Lessons
Learned • In disparate
treatment cases
make specific
allegations not
general ones

14. Lindquist v. City of Pasadena
(5th Cir. 2012)
• Failed “class of one claim”
– Role of “comparators”

15. Lessons
Learned • In "class of one"
litigation
comparators must
truly be comparable

16. Harmon v. Kimmel
(U.S. 2012)
• NYC rent control…Kelo ripple

17. Lessons
• Revisit what Kelo
Learned requires:
– A plan
– Public process
– Legislative decision
– Enforcement

18. Arkansas Game & Fish
Commission v. United States
(pending U.S. 2012)
• Flooding physical taking case

19. Lessons
Learned • Consider all impacts
of stormwater
controls

20. DeCook v.
Rochester International Airport
(Minn. 2011)
• Taking found
– May be the state constitution
– Always save value

21. Lessons
Learned • State constitutional
takings claims can
sometimes provide
more room for
recovery than federal
claims

22. St. Johns River Management District
v. Koontz
(Fla. 2011)
• Nollan and Dolan
– not settled law

23. Lessons
• Extending Nollan and
Learned Dolan beyond
required land
dedications may be
difficult
– At least when the
plaintiff is named
Koontz and not
Kollan!

24. Hilton Head Automotive v.
S.C. DOT
(S.C. 2011)
• Impact minimal, not compensable

25. Lessons
Learned • Reasonable use
negates a taking
• New median strip
alone does not effect
a taking on facts
showing U-turn
alternative

26. West Linn Corporate Park LLC v.
City of West Linn
(9th Cir. 2011)
• No dedication to the public, no taking

27. Lessons
• Off-site
improvements may
Learned 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

28. Severance v. Patterson
(Texas 2012)
• Is a rolling easement a taking?

29. Lessons
Learned • Final word on real
property law is state
not federal law

30. Borough of Harvey Cedars v.
Karan
(NJ App 2012)
• Dune diminished value; compensable

31. Lessons
• When dune adds to
Learned general safety but
destroys specific
view government
pays

32. Kiawah Dev. Partners v. S.C. Dep't
of Health & Envtl. Control
(S.C. 2011), rehearing granted (2012)
• Bulkhead not permissible

33. Lessons
Learned • Jurisdictional issues
are difficult and
should be resolved
early

34. HNS Development v. People’s
Counsel for Baltimore County
(MD. 2012)
• Role of the comprehensive plan

35. Lessons
Learned • Nonconformity with
the master plan can
be an independent
basis for denying a
site development
plan…in Maryland

36. 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

37. Lessons
• If a statute gives a
municipality broad
Learned discretion in land use
matters, courts may
be reluctant to
infringe on that, at
least where nothing
egregious has been
done

38. Borough of Sayreville v. 35 Club LLC
(NJ 2012)
• Adult entertainment – may consider
“neighboring communities”

39. Lessons
• Some First
Amendment rights
may be more
Learned protected than other
First Amendment
rights
• Some State residents
may have to go out-
of-state to enjoy
their State-protected
rights

40. Peterson v. City of Florence
(D.Minn. 2011)
• Adult entertainment with no commercial
zoning

41. Lessons
• Unique facts
sometimes lead to
Learned 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

42. Anschutz Exploration Corp. v.
Town of Dryden
(N.Y. Sup. 2012)
• Local regulation of fracking

43. Lessons
• Regulating land use is
different than
regulating the
Learned 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

44. 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.

45. Lessons
Learned • Local regulation
should address
locations, not
policies and
procedures of state
regulated industries

46. Hoffman Mining Co. v.
Zoning Hearing Bd.
(PA. 2011)
• Fracking – state didn’t preempt local

47. Lessons
Learned • To avoid pre-emption
claim make good
record of unique
local conditions

48. 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?

49. Lessons
Learned • Ordinances
incorporating Green
Standards could
leave planners red-
faced or black and
blue

50. Telecommunications Act
• Federal zoning
• “Shot Clock” requirement
• “Denial of Service” v. local zoning

51. Lessons
• FCC Shot Clock rule
says 90 to 150 days is
Learned enough to decide
unless municipality
can explain why
• Provider must show
lack of service and no
alternatives or denial
will be sustained

52. Centro Familiar Cristano Buenas
Nuevas v. City of Yuma
(9th Cir. 2011)
• RLUIPA equal terms case

53. Lessons
Learned
• Treat religious uses
like any other place
of public assembly

54. Guatay Christian Fellowship v.
County of San Diego
(9th Cir. 2011)
• RLUIPA ripeness

55. Lessons
Learned • At the very least, a
claimant has to make
at least one real
application for the
use
– To know the
“finalized,
particularized
burden”

56. International Church of the
Foursquare Gospel v. City of San
Leandro
(9th Cir. 2011)
• Avoiding a substantial burden

57. Lessons
• Evidence need only
Learned be more than a
“mere…scintilla of
evidence” to get to
trial
• Are suitable
properties available?

58. Questions and,
we hope,
some answers…