Federal And State Court Updates

Sixth Circuit Rules on Condemnation of Land to Preserve It For a Thoroughfare

Clarifying Washington State's Growth Management Act

West Virginia Town Ordered to Approve Subdivision Plat

Supreme Court in Georgia Rules Development Rules Ambiguous

Idaho Supreme Court Rejects Challenge to Water District's Increased Fee Structure

Sixth Circuit Rules City May Condemn Land for Proposed Thoroughfare Despite 26 Years of Inaction

The Sixth Circuit rejected a developer’s appeal of a district court dismissal of his challenges to condemnation proceedings initiated by the City of Westlake to preserve land for a thoroughfare that was supposed to have been built in 1979. Andreano v. City of Westlake, 2005 WL 1506049 (6th Cir., 2005). The plaintiff has been developing this parcel in phases since 1978. The applications for the first and second phases accommodated the proposed thoroughfare, but when the developer submitted plans for a third phase that did not accommodate the thoroughfare the city changed the lot size requirements and rejected the proposed development for failure to satisfy the new requirements and failure to provide for an approved thoroughfare. Then the city initiated condemnation proceedings even though the developer offered to sell the City a right of way. Despite the fact that the thoroughfare was to be completed in 1979, the court concluded that the proposed construction provided a rational basis for the decision to condemn the developer’s property.

The court also rejected the developer’s alleged violations of his substantive due process and equal protection rights. The due process challenge failed because the developer did not have a protected property interest in approval of his plan and the equal protection claim failed because the developer was unable to identify any similarly situated individuals who had been treated differently.

For the full opinion, click on the link here:  http://www.ca6.uscourts.gov/opinions.pdf/05a0541n-06.pdf

Washington Supreme Court Clarifies the Requirements of the Growth Management Act 

In a recent en banc opinion, the Washington State Supreme Court clarified the requirements of the Growth Management Act (“GMA”) and, in doing so, declared an end to the Bear Creek Litigation, ending litigation that began more than a decade ago. Quadrant Corp. v. State Growth Management Hearings Bd., 110 P.3d 1132 (Wash. 2005). The dispute concerned 2,500 acres that King County had designated as an Urban Growth Area (UGA) and subsequently designated a fully contained community (FCC) in response to challenges to the UGA designation. Both of these designations were made pursuant to Washington's Growth Management Act (GMA).

A citizens’ group called Friends of the Law (FOTL) challenged both the UGA and FCC designations.  The dispute over the UGA designation concerned whether the county could consider vested development rights when determining whether an area “already is characterized by urban growth.” The County had considered vested development rights in determining that the land met the criteria for a UGA, but FOTL argued that the County could only consider development that existed at the time. The Court concluded that the term did not just refer to development that had already occurred, but referred to all stages in the process so vested development rights could be considered.

The Court next addressed FOTL’s challenge to the FCC designation. An FCC is an alternative method of designating an area as urban, without the constraints associated with creating UGAs. FOTL argued that: (1) the phrase “fully contained” explicitly requires that the area is literally contained; and (2) that the County is required to satisfy conditions in addition to those enumerated in the GMA in order to create an FCC. With regard to FOTL’s first argument, the Court held that FOTL’s interpretation conflicted with the legislature’s intent and with the rules of statutory construction because FOTL was attempting to supplement the requirements of the GMA. The basis of the group’s second argument was that the text of the GMA specifically states that a county can designate an FCC upon satisfying “criteria including but not limited to” (emphasis added) the enumerated criteria. The group argued that the GMA imposed additional requirements on counties beyond the enumerated requirements. The Court disagreed and interpreted this passage to mean that counties can impose additional requirements, not that additional requirements can be imposed upon counties.

Court Orders Town Council of Bolivar, West Virginia, to Approve Subdivision Plat

The West Virginia Supreme Court of Appeals recently issued a writ of mandamus to compel the Town Council of Bolivar to approve the subdivision plat for the proposed Marmion Hill subdivision. State ex rel. Brown v. Corporation of Bolivar, 209 W. Va. 138 (2005). The Council had originally denied the plat citing concerns that the safety of residents would be compromised by the increased traffic that would result from the subdivision. As support for its decision, the Council cited its power to regulate streets and traffic. While the court agreed that the Council had such authority, it held that this authority was an improper basis for denying the subdivision plat so the court issued a writ of mandamus directing the Council to approve the submitted plat. As support for the issuance of the writ the court cited its power to compel an administrative officer to perform a nondiscretionary duty when that officer has refused on the basis of a misapprehension of the law.

This decision was one in a series of decisions relating to the proposed Marmion Hill subdivision dating back to 1998 when the Petitioner first tried to sell the property. These attempts to develop the property prompted a nine-month moratorium on building permits, which the West Virginia Supreme Court of Appeals invalidated. The Council subsequently enacted another moratorium, which the court again invalidated. In addition to invalidating the second moratorium, the court awarded attorneys’ fees because it concluded that the Council had acted in defiance of the court’s previous decision. The Petitioner in the present case cited that decision as support for their request for attorneys’ fees, but the court rejected their request because the present case involved a misapprehension of the law, not deliberate defiance of the law. The court also refused the Petitioner’s request that all required building permits be issued because the decision whether to issue these permits involves discretion that is properly exercised by the Town Council.

Georgia Supreme Court Rules That Development Regulation is Ambiguous

The Georgia Supreme Court recently overturned a trial court’s decision to grant a writ of mandamus to compel the Screven County Planning Commission to approve a sketch plan for a new subdivision. Screven County Planning Com'n v. Southern States Plantation, 2005 WL 1320389 (Ga. 2005). The Commission denied the plan because it interpreted Screven County, Ga., Land Development Regulation § 6.1 to require the developers to pave two county roads near the planned subdivision. The developers challenged this decision and the trial court held that the term “streets,” as used in § 6.1, was ambiguous and could refer to streets inside and around the subdivision or just to streets within the subdivision. Since ambiguities in a zoning ordinance must be construed in favor of the property owner, the trial court held that § 6.1 did not require that the developer pave the two county roads and therefore issued a writ of mandamus to compel the Commission to approve the sketch plan.

The court affirmed the trial court’s decision that § 6.1 was ambiguous and should be construed in favor of the landowner and therefore did not require paving of the two county roads, but the court reversed the trial court's decision to issue a writ of mandamus. The reason for the reversal was the fact that Screven County, Ga., Land Development Regulation § 6.8 gives the Commission discretion to decide whether the existing primary access roads are sufficient to accommodate the increased traffic that results from a new subdivision. Because the Commission had not exercised that discretion, the court found it was inappropriate for the trial court to issue the writ.

Idaho Supreme Court Rejects Developer’s Challenge to Water District’s Increased Fees

The Supreme Court of Idaho rejected a landowner’s challenge to a water district’s increased capitalization and hook-up fees. Potts Constr. Co. v. N. Kootenai Water Dist., ___ P.3d ___, 2005 WL 1414502 (Idaho, 2005). The fees included a $2,000 capitalization fee for each lot and a $600 hook-up fee. Previously the fees totaled $800. The developer paid hook-up fees for 13 parcels when the previous pricing was in effect, but did not connect 8 of them. When the developer sought to connect the remaining 8 the city demanded additional fees to reflect the increased pricing. The court held that the developer had not created a binding contract by paying the hook-up fees for the 13 parcels and therefore had to pay the higher rate. The court also held that the capitalization fee was a rational measure to ensure that maintenance costs were borne in proportion to usage. [ return to top ]