International Municipal Lawyers Association - Local Government Blog
“You throw the sand against the wind…and the wind blows it back again.” – William Blake … but is it a taking?
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
The big news this last week was that on Monday, June 15th the U.S. Supreme Court granted certiorari in a takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (Florida Supreme Court, decided September 29, 2008, rehearing denied December 18, 2008). Click here for the Florida Supreme Court opinion. Here is the Florida Court of Appeal decision which gives more details.
Municipal lawyers will want to follow this for two reasons. First, it ends a four-year hiatus since the U.S. Supreme Court took on a takings case (last decided were Kelo, Lingle and San Remo Hotel) and it will be the first for the new chief justice. Second, at root, the case is about global warming and, specifically, the government’s role in adaptation planning. For a primer on the latter, see the recent Pew Center report.
As a planner and land use lawyer, I see adaptation planning as the leading regulatory issue of the next decade.
The case was covered by inveresecondemnation.com on June 16th with several good links. It was also addressed by the Eminent Domain Law Blog.
The Court will be deciding whether Florida’s state legislation, the Beach and Shore Preservation Act, effects a per se taking of the upland owners’ property. Click here for the relevant portion of the statute.
This is the provision at the center of the controversy, a vesting statute contrary to the common law of accretion, that basically gives the state the ownership of the land it creates when it fills seaward of the “erosion control line” which becomes the new property boundary:
161.191 Vesting of title to lands.
(1) Upon the filing of a copy of the board of trustees’ resolution and the recording of the survey showing the location of the erosion control line and the area of beach to be protected as provided in s. 161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners whose lands either abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the board of trustees’ survey was recorded.
(2) Once the erosion control line along any segment of the shoreline has been established in accordance with the provisions of ss. 161.141-161.211, the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process, except as provided in s. 161.211(2) and (3). However, the state shall not extend, or permit to be extended through artificial means, that portion of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water’s edge would be altered or impaired.
Under the statute the state renourishes beaches, adding sand to them to combat erosion. The project which started the current litigation would widen the beach at Destin, Florida by 210 feet for a length of 6.9 miles. Who owns that “new” (actually “restored” given that it is renourishment after all) beach? The State of Florida says it’s theirs; the littoral owners see the restored beach as belonging to them, not the state.
Take a look at the beach, courtesy of the Environment News Service.
The beach at Destin, Florida (Photo by Jennifer Lee)
The takings question before the Florida Supreme Court was this: “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?” The Florida court found no per se taking. It’s a matter of avulsion, not accretion, said the court. In following the case you’ll come to learn the critical difference between the two and be able to impress family and friends. The sound bite version is that avulsion deals with large, sudden changes, while accretion is little bits on new land very slowly over a long time. Hurricane Opal (1995) was avulsive.
Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).
The questions presented to the U.S. Supreme Court are:
The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
This is a case to watch. And with your other eye, keep track of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008), reh’g and reh’g en banc denied, — F.3d –, 2009 WL 367528 (Feb. 17, 2009). The U.S. Court of Appeals for the Federal Circuit held that it was a per se taking to require the water district to provide a fish ladder at its facilities and divert some of its water to protect the fish under the Endangered Species Act. Watch for a certiorari petition. Two motions for extension of time have been granted so the Solicitor General has until July 15th to file.
Zoning Vesting according to Ollie: “Well, here’s a another nice mess you’ve gotten me into.” – from “Another Fine Mess” (1930)
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The lessons learned (as if we didn’t know them already) are:
- Local governments should have good rules and procedures for staff sign-offs of zoning opinions and approvals.
- Developers shouldn’t always take a staff letter as the last word on whether the use is permitted and vested.
- Everyone should be reading the statutes.
In this case, an outfit known a Crucible, Inc. has a school of sorts — a “security training facility” — in Stafford County, Virginia, where it “primarily trains government agents and employees in ‘individual protective measures,’ including ‘firearms training,’ ‘unarmed combative defensive tactics,’ ‘surveillance detection,’ and ‘anti-terrorist evasive driving.’” This does not sound like “Little Miss Bo Peep’s Pre-School” but they presented themselves as a school nevertheless.
Crucible had a contract for $2.25 million to buy more land to expand its facility. The zoning administrator, the planning staff and Crucible staff met and Crucible presented information on why its operation was a school, permitted as of right, under the regulations. The county officials agreed and the zoning administrator issued a “Zoning Verification” letter. Crucible closed on the additional land.
A month later – funny how these things happen right after one another – the Board of Supervisors amended the zoning to require a conditional use permit for any school in the A-1 district – whether it trained pre-schoolers in finger-painting or federal agents in anti-terrorist evasive driving.
By the way, here’s their driving facility from the website http://www.cruciblesecurity.com/
And here is a shot, also from Crucible’s website, of the main training facility.
I wonder if they have recess at the Crucible? ”Show and Tell” must really be something. And where do they go on field trips? Think about it — a school zone where guns are required…
John Delaney wrote an article in 2000 which is a comprehensive overview of vesting. Click here for a copy.
Be the First to Feel the Breeze…
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
One objective of this weekly land use blog is to provide the most current information and report on matters you might otherwise miss through normal channels. Yes, the big cases and developments are covered, but this week I went behind the news, wrote to a company official named in a story, and just this morning acquired a decision worth reading which is not yet officially reported.
The case comes out of Fayette County, Pennsylvania. CLICK HERE for the story reported in the paper on Saturday and updated yesterday.
This is about a special permit/conditional use. If the standards are met, it should be approved providing there is unrebutted substantial evidence of compliance. It has the twist of involving a substantial wind farm project.
PPM Atlantic Renewables proposed to erect 24 wind turbines along 3.5 miles of Chestnut Ridge to generate enough electricity, 50.4 megawatts to be exact, to service 17,000 homes. It submitted 20 – count ‘em – 20 special exception applications. Two townships with a single Zoning Hearing Board (ZHB) – the third has its own ZHB which granted the requested special exception – voted to deny, largely on the grounds that the towers were too tall and would kill bats.
Judge Ralph C. Waxman, in a 33-page decision, held that the ZHB had abused its discretion in denying the applications. CLICK HERE for the decision, available exclusively from IMLA.
People complained of the appearance and implied it would hurt tourism.
Judge Waxman said: “The Objectors seem to assume that just because the turbines would be added to the Chestnut Ridge viewshed that this would cause a negative impact. The Objectors presented no expert testimony to support their position and they admit that there is no way to predict if people will stop coming to the area due to the turbines. While the concept of the general welfare of a community in zoning matters includes a consideration of aesthetics, aesthetics alone cannot support a determination that the health, safety and general welfare of a community would be adversely affected by the grant of a special exception.”
The court found that PPM had met its initial burden and that the burden had shifted to the objectors to rebut the presumption.
“Since the ZHB has exclusive jurisdiction to hear and render final adjudications in applications for variances, and upon consideration that the ZHB has failed to do so in this case, we remand this action back to the ZHB for further proceedings consistent with this opinion. The ZHB shall consider and grant each special exception as required by law, and may impose whatever conditions they deem fit to protect the health, safety and general welfare of the community.”
The County apparently supported the project. Two of its commissioners voted to intervene in the appeal on the side of the wind power developer. One commissioner, after the court decision was issued, is reported in the Herald-Standard article as saying: “There [is] some optimism that Fayette County will participate in something that is not only good for the county and our commonwealth, but also our nation. I hope the project comes to fruition.”
It’s a Dog’s Life
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
Now, there’s a phrase with ambiguous meaning. If you go way back, 400 years or so, you can find where a “dog’s life” and “go to the dogs” referred to the hard life of dogs kept for hunting, left out in the wet and cold, and fed only scraps. In the mid-1600s there was a proverb: “It’s a dog’s life, hunger and ease.” Nowadays, the meaning for some people has turned 180 degrees and has come to signify living in a pampered way.
So, too, the tales (tails?) of land use law for this week wag both ways. First, from the news reports, this one out of Hampstead, North Carolina, comes the story of a Pender County no-kill animal shelter that apparently has been forced to shut down because it is illegal under the current zoning. The shelter operators claim it is a pre-existing nonconforming use; the county apparently believes it was not open and continuously operating before the zoning was adopted. Click here for the story as aired on the local television station.
Here is one of the pups about to become homeless. Worse yet, according to the many protesters who tried to force the county to let the shelter remain open, unadopted dogs from the no-kill shelter will go to the county shelter which does euthanize unwanted animals.
From News 14 Carolina
As of Friday night, the latest reports were that the shelter had closed with half of the remaining 15 dogs having been adopted. See “Topsail Humane Society closes, looks for new location” by clicking here.
The shelter is at 117 Lewis Street – I can’t tell exactly which building here – but it looks rather residential except for the boat storage, don’t you think?
The second recent story is of a Connecticut decision that I found on line a few days before it will be officially reported. It’s from the state’s single middle-level appellate court and is about a woman who had 22 shih tzus as pets. I know more about the case than I wanted to as I had to sit through one painfully-long local hearing on the matter while I awaited my turn for one of those five minute “hello-how-are-you-here’s-our-little-application-glad-you-like-it-thank-you-for-the-approval-good-night” jobs.
The case is Kilburn v. Plan and Zoning Commission of West Hartford (April 14, 2009). Click here for a copy and be the first in your block to read it.
The case is interesting not because Faith Kilburn was denied a special permit to keep 22 of the little yelpers in her home, but because in deciding on her original application requesting to keep 22 the commission said she could keep three (more than two is a “kennel”) and she had two years to get rid of the rest. She didn’t challenge the condition and two years later when the condition hadn’t been met (and nothing surrounding the proposed use had changed), she applied to amend the special permit to keep 22 and was again denied. If you don’t appeal the condition when it is imposed, you can’t complain about it later, said the court.
From a search of www.411.com and www.maps.live.com, I believe this is her fenced yard:
Think about it – 22 shih tzus at 10 pounds each is about equal to a heavyweight Saint Bernard. Hey, there’s an argument – the 22 little guys equal one really big dog. There is a whole body (so to speak) of agricultural zoning law based on animal units. This is really fun. Boulder County has a great section on animals with this wonderful graphic (click here):
I’m thinking, maybe she should have argued:
THE CHALLENGE TO AT&T
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Posted By: Joesph Van Eaton, Partner, Miller & Van Eaton, PLLC
AT&T’s entry into the video market has not been smooth. Unlike Verizon, which is building fiber to the home, AT&T is by and large upgrading its old copper wire system so that it can be used to provide video. Its design required it to place refrigerator-sized cabinets throughout communities – a move that forced many communities to develop new siting standards (it didn’t help that some of the cabinets exploded).
Now two challenges have been filed at the Federal Communications Commission, claiming that manner in which AT&T provides public, educational and government access violates the law. One challenge was filed by the City of Lansing, Michigan. A more detailed challenge was filed by a consortium of organizations that promote access, community colleges, local governments, and local government organizations. The lead petitioner is the Alliance for Community Media (“ACM”). The petition was filed by the law firm of Spiegel & McDiarmid.
As the ACM petition points out, AT&T does not really provide PEG channels. It provides what it calls a PEG “application” or “platform.” The PEG application does not function like a normal, commercial channel on the AT&T system: AT&T cannot pass through closed captioning for example. One of the reasons some community colleges joined in the FCC petition was because they are required to deliver programming with closed captioning. AT&T won’t deliver secondary audio signals (used to deliver programming in a second language) on PEG channels. A viewer cannot surf between commercial and PEG channels; PEG channels can’t be recorded while viewing another channel. There are significant quality issues as well. The FCC will now decide whether these deficiencies violate federal law.
The ACM petition raises only federal claims. More challenges may be on the way: the Illinois Attorney General has announced that AT&T provision of PEG access is under investigation by the state. Many communities could raise (and are considering raising) independent claims under state laws. Lansing filed a state court claim at the same time it filed its FCC claim.
These cases are serious, and at the very least should raise a red flag for attorneys in communities that plan to provide access programming to AT&T systems. It will be important to review any programming arrangements carefully to be sure that rights are not lost.
