The Top Ten Land Use Law Decisions of 2013 From Zoning to Regulatory Takings

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1 The Top Ten Land Use Law Decisions of 2013 From Zoning to Regulatory Takings Friday, January 10, :30-5:30 PM Dwight Merriam, FAICP Robinson & Cole LLP 1

2 Fast paced, national perspective, lessons learned 2

3 St. Johns River Management District v. Koontz (U.S. 2013) Extended Nollan and Dolan For denials For money 3

4 Lessons Learned Be careful how impact fees and other exactions are handled must meet essential nexus and rough proportionality tests 4

5 Borough of Harvey Cedars v. Karan (NJ 2013) Dune diminished value; compensable; valuation question; settled 5

6 Lessons Learned When dune adds to general safety but destroys specific view government pays, but may be offset by public benefit 6

7 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

8 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 8

9 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

10 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 10

11 Roman Catholic Bishop of Springfield v. City of Springfield (1 ST 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

12 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 12

13 Temple B Nai Zion, Inc. v. City of Sunny Isles Beach (11 TH Cir. 2013) Moratorium to prevent demolition of Temple building Temple sues under RLUIPA, U.S. Constitution & state law

14 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. 14

15 Horne v. Dept. of Agric. (U.S. 2013) I heard it on the grapevine Agricultural Marketing Act of

16 Lessons Learned Fifth Amendment takings claim can be a defense, without seeking damages ZEOs and ZBAs pay attention 16

17 Norse Energy Corp. v. Town of Dryden (N.Y. App. Div. 2013) Local regulation of fracking 17

18 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 18

19 Bartlett v. City of Manchsetser (NH 2013) Variance case, but unnecessary; accessory use 19

20 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! 20

21 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

22 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 22

23 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

24 Lessons Learned Delay caused a temporary taking Compelled dedication of easements across private property different than on-site improvements as a condition of approval 24

25 35 Bar and Grille v. San Antonio (USDC WD Texas 2013) The Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie 25

26 Lessons Learned No injunction, bar not likely to win Avoid content-based regulation You can regulate state of dress 26

27 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 27

28 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 28

29 Town of Hollywood v. Floyd (SC 2013) Residential subdivision case gone wrong 29

30 Lessons Learned If you are a developer, stay out of Hollywood, South Carolina. 30

31 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

32 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 32

33 Brown v. Town of Cary (4 TH Cir. 2013) Screwed homeowner upset with municipal road-paving projects, refuses to take down sign, sues, wins at District Court, and loses on appeal

34 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 34

35 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

36 Lessons Learned On March 14, 2013 the Appellant, South Carolina Coastal Conservation League, petitioned for rehearing, which was granted Stay tuned 36

37 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

38 Lessons Learned Avoid, minimize and compensate Restoration, establishment, enhancement, and preservation Innovation and use of best available science Promote public participation and planning 38

39 Shockoberfest (Sinking Spring Borough, PA) When is a scream house something more than a pop-up Halloween attraction? 39

40 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 40

41 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?

42 Lessons Learned Know what the permit allows and what the agency has allowed it may have granted more than it thought 42

43 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?

44 Lessons Learned Structure harmoniously blended into framework of building may not be a sign 44

45 Questions and, we hope, some answers 45

Koontz v. St. Johns River Water Management District

Koontz v. St. Johns River Water Management District New England Housing Network Annual Conference December 6, 2013 Dwight Merriam, FAICP Robinson & Cole LLP You know the drill, these are my personal observations