As part of the State’s Certified Local Government program for historic preservation (see,, the agency has published a model local landmarks preservation law here –

Following the commencement of construction of a swimming pool without permit approval, the code enforcement officer notified the defendant of the need for a permit. Upon receipt of the permit application, the defendant was notified that the location of the pool did not comply with the applicable set back requirements. Despite this, the defendant continued to build the pool and it was later determined that it encroached on her neighbor’s property. Although the defendant eventually applied for an area variance, the request was denied and defendant did not appeal nor did she remove the encroachment. Rather, defendant brought an adverse possession action and sought to have the enforcement stayed. The appellate court agreed with the court below that the enforcement action would not be held in abeyance and noted that even if she were to be successful with the adverse possession claim, she would still need the required variance.

Town of Chatham v Smith, 119 A.D. 3d 1282 (3 Dept. 7/24/2014)

The opinion can be accessed at:

Holt purchased a lot in Stonington, CT after the zoning enforcement officer informed the prior owner in an opinion letter that a single-family home could be built on the lot. However, Holt was denied the building permit after the Town discovered that the zoning enforcement officer overlooked a prior sale of a ten-foot strip of land to the owner of a neighboring parcel. Although Holt had withdrawn the application, the zoning board overturned the zoning officer’s opinion letter and Holt then filed an action in state court. The state appellate court held that the opinion letter was a “preliminary, advisory opinion and not a decision subject to appeal.” Holt then filed the instant matter in federal court to estop the Town from preventing building on the lot. The federal district court entered an injunction stopping the Town “from determining that the [property in question] is unbuildable under the Town’s zoning regulations.” The Second Circuit vacated and remanded.

The Circuit Court found that Holt failed to exhaust administrative remedies as she withdrew her application for a zoning permit before the Town zoning officials had acted on the application. The Court also said that the opinion letter of the zoning officer did not constitute a decision by administrative officials, and noted that the state court said it was not appealable. The court also said that the zoning board (using the normal zoning process) has authority to consider and grant the ultimate relief sought – which is to obtain a permit to build. Holt did not prove that following proper procedures would futile.

Holt v Town of Stonington, 2014 WL 4251291 (2nd Cir. (CT) 8/29/2014)

The opinion can be accessed at:

In 2012, voters in Longmont County, CO enacted a ban on hydrofracking. At issue was whether the rules of the Colorado Oil and Gas Conservation Commission (“Commission”), a body created by the Oil and Gas Conservation Act, preempt a local ban. In finding that the local ban is preempted by State Law, the Court said, “Longmont’s ban on hydraulic fracturing creates a patchwork of oil and gas extraction methods that inhibits what the General Assembly has recognized as a necessary activity in the Oil and Gas Conservation Act and it impedes the orderly development of Colorado’s mineral resources.”

The Court applied the four-part test set forth by the State Supreme Court in Voss v. Lundvall Bros, Inc., whether there is a need for statewide uniformity of regulation; ii) whether the municipal regulation has an extraterritorial impact; iii) whether the subject matter is one traditionally governed by state or local government; and iv) whether the Colorado Constitution specifically commit the particular matter to state or local regulation. In the Voss case, the court struck down a drilling ban in Greeley, CO, finding that the Oil and Gas Conservation Act prevented a home-rule city from passing land-use ordinances that ban oil and gas drilling within its boundaries. But that court held that state law “does not totally preempt a home-rule city’s exercise of land-use authority over oil and gas development and operations” within the city limits.

The Court also considered the three forms of preemption: a) express preemption; b) implied preemption; and c) operational conflict preemption (see, County Commissioners of La Plata County v. Bowen/Edwards Assoc. Inc. The Court here said, state preemption can arise “by reason of operational conflict” where the “effectuation of a local interest would materially impede or destroy the state interest.” Determining that there was no implied preemption, the Court concluded that there was no way to harmonize the local ban on fracking with the stated goals of the Oil and Gas Conservation Act. The Court noted that the state interest in production, prevention of waste and protection of correlative rights, and the County’s interest in banning hydraulic fracturing presented mutually exclusive positions. Finding no common ground upon which to craft a means to harmonize the state and local interest, the Court concluded that the conflict was irreconcilable.

The Court enjoined the County’s ban but stayed the decision to allow the city to file notice of appeal. “In other words, there shall be no hydraulic fracturing activity in the City of Longmont until further order of Court, either from this Court or a higher court.”

Colorado Oil and Gas Association v. City of Longmont, 2014 WL 3690665 (Colo.Dist.Ct. 7/24/2014)

The opinion can be accessed at:

Mack and Leann Phillips own approximately 15.62 acres in Montgomery County, Tennessee. Their request to subdivide the property was denied, and brought an action for a regulatory taking under state constitution, seeking compensation under the inverse condemnation statute. The Circuit Court denied county’s motion to dismiss, and the Court of Appeals, affirmed in part, reversed in part, and remanded. Landowners applied for permission to appeal.

In denying the plat, the Planning Board cited as its reason that Article V, General Provisions, Item Five states: “The Planning Commission shall not approve the subdivision of land if from adequate investigations conducted by all agencies concerned it has been determined that in the best interest of the public the site is not suitable for platting and development purposes of the kind proposed.” The Property Owners argue that the denial of their subdivision plat constitutes a regulatory taking for which article I, section 21 of the Tennessee Constitution requires compensation pursuant to the inverse condemnation statute, Tennessee Code Annotated section 29–16–123. The court held that given the textual similarities between the federal Takings Clause and article I, section 21 of the Tennessee Constitution, the lack of any historical basis indicating that it should be viewed as less protective of private property rights than the federal Takings Clause, and the widespread adoption of federal regulatory takings jurisprudence by other state courts, article I, section 21 of the Tennessee Constitution encompasses regulatory takings to the same extent as the Takings Clause of the Fifth Amendment to the United States Constitution. As a result of this, the court concluded that, taking the allegations in the light most favorable to the Property Owners, the complaint was sufficient to state a regulatory takings claim.

Accordingly, the court reversed the Court of Appeals’ judgment and dismissed the Property Owners’ regulatory taking claim, and affirmed that portion of the Court of Appeals’ judgment remanding this matter to the trial court for further proceedings.

Phillips v Montgomery County, 2014 WL 4056698 (TN 8/18/2014)

The opinion can be accessed at:

The Pasco County Board of County Commissioners (“Commissioners”) enacted the Right–of–Way Preservation Ordinance as part of a comprehensive plan to expand public highways in the county by 2025. The Ordinance requires landowners whose property encroaches on SR 52 to convey in fee simple a portion of their property as a condition for receiving a development permit from the County. The Ordinance also contains a provision allowing developers to seek a dedication waiver upon a showing that the “amount of land required to be dedicated to the County … exceeds the amount of land that is roughly proportional to the transportation impacts of the proposed development site.” In this case, Pasco County appealed from the District Court’s decision granting a partial summary judgment on Hillcrest’s motion and issuing a permanent injunction against enforcement of the Right–of–Way Preservation Ordinance (“Ordinance”). The District Court held that the Ordinance facially violates substantive due process under the Fourteenth Amendment, and that this claim was not barred by the statute of limitations. It also denied Pasco County’s motion for summary judgment on Hillcrest’s as-applied substantive due process claim.

The court looked to the Sixth and Ninth Circuits reasoning in Kuhnle and Action Apartment Association respectively, and found that Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. This was due to the fact that its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition. The court further found that this injury should have been apparent to Hillcrest upon the Ordinance’s passage and enactment because it had been the owner of the property since 2001 and had been actively engaged in developing the property since at least 2003. Accordingly, the court vacated the District Court’s holding and found that Hillcrest’s facial substantive due process claim accrued when the Ordinance was enacted on November 22, 2005, and was time-barred when Hillcrest filed this action more than five years later on April 7, 2010.

Hillcrest Property, LLC v Pasco County, 754 F.3d 1279 (11th Cir. 6/18/2014)

The opinion can be accessed at:

Plaintiffs brought suit against the County of Alameda (“County”), alleging that the County’s regulation of billboards and advertising signs is unconstitutional, and moved for a preliminary injunction, claiming that the County’s comprehensive zoning law, codified as Title 17 of the Alameda County General Ordinance Code (the “Zoning Ordinance”), violated their First Amendment rights and was facially invalid. The ordinance at issue, Zoning Ordinance § 17.18.010, stated that “any land use within the boundaries of a[PD] district adopted in accordance with the provisions of this chapter shall conform to the approved land use and development plan.” Plaintiffs argued that the Zoning Ordinance was overbroad and facially unconstitutional because it: (1) regulates billboards and advertising signs without identifying a substantial governmental purpose; (2) regulates speech based on its content by allowing some commercial speech while disallowing all noncommercial speech; and (3) gives certain County officials the power to regulate speech based on content by giving them unfettered discretion to allow variances or to permit signs with certain types of content.

As to the first claim, the court found that In light of section 17.52.515(B), which states that the purpose of the County-wide ban on new billboards and advertising signs is to “advance the County’s interests in community aesthetics by the control of visual clutter, pedestrian and driver safety, and the protection of property values,” the Plaintiffs were unlikely to show that the Zoning Ordinance failed to identify a substantial government interest. The Court also found that the Plaintiffs were unlikely to succeed on the merits of their second argument because the Zoning Ordinance does not place greater restrictions on noncommercial speech than it does on commercial speech, or regulate speech based on content. This finding was due largely to the presence of a substitution clause within the ordinance. As to the Plaintiffs’ third claim, Section 17.52.520(R) allowed signs to be “placed on or attached to bus stop benches or transit shelters in the public right-of-way when approved by the director of the public works agency.” Therefore, under the Zoning Ordinance, County officials could allow some speech and suppress other speech based entirely on content. Furthermore, the court found that the ordinance lacked any procedural safeguards to ensure that the County would make its discretionary decisions in a timely manner. As a result, the court granted the Plaintiffs’ motion for a preliminary injunction.

Citizens for Free Speech, LLC v County of Alameda, 2014 WL 3866504 (ND CA. 8/5/2014)

The opinion can be accessed at:,%20LLC%20v.%20COUNTY%20OF%20ALAMEDA

Plaintiff Robert Snyder operated a business in a building he owned, and shared with two tenants, in a mostly residential area of Waltham, Massachusetts. After Snyder fired an employee who was a member of the Waltham city council, the former employee complained to the city building department that Snyder was using his property unlawfully. As a result, Code enforcement officers then scrutinized Snyder’s use of his property and fined him under a local land use ordinance. Snyder brought suit under 42 U.S.C. § 1983 against the city of Waltham and five individuals, claiming a violation of his right to equal protection of the laws under the Fourteenth Amendment. After unsuccessfully seeking summary judgment based on immunity defenses, two of the individual defendants filed this appeal.

In making his equal protection claim, Snyder did not point to any owner of another building, operating under a similar variance, who was allowed to use that other building as Snyder used his own. Instead, Snyder says he was treated differently than the prior owner of this particular property, who received a letter from a City employee in 1994 stating that his use of the property was acceptable under the variance. However, the variance was first requested and obtained by an optometrist who sought to use the building for medical offices, the next owner continued to use the building as an optometry office, and the 1994 letter confirmed that this use was acceptable. The court also noted that Snyder’s claim was also weakened by the passage of thirteen years between the letter to the prior owner in 1994 and the city’s citation of Snyder in 2007, and that the most reliable comparisons are likely to be from roughly the same time frame. Accordingly, the First Circuit reversed the district court’s denial of the City employees’ motion for summary judgment on Snyder’s federal claims.

Snyder v Gaudet, 756 F. 3d 30 (1st Cir. 6/25/2014)

The opinion can be accessed at:

In an ongoing extraterritorial dispute between the City of Whitefish and Flathead County regarding land-use regulation in a 2-mile-wide area surrounding Whitefish city limits, the district court invalidated a 2011 City referendum that repealed a city-county resolution on the subject. The City appealed, arguing that the post-election challenge to the referendum was filed too late, that the district court erred when it determined that the resolution was an administrative act that was not repealable through the referendum process, and the effect of the repeal of the referendum should be to return the city and county to a 2005 agreement under which the city had zoning and planning jurisdiction for the area.

In a case of first impression, the Montana Supreme court said it would review the matter for correctness trial court’s conclusions of law regarding the validity of referendum. The court held that the action was not untimely under state statute that provides a 14-day deadline to challenge a proposed action in a referendum and the filing of an action four days after the results of the referendum were certified did not warrant dismissal based upon laches. Lastly, the Court concluded that the Resolution was not subject to referendum by voters to rescind it.

Phillips v City of Whitefish, 330 P. 3d 442 (MT 7/15/2014)

The opinion can be accessed at:

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