12/10/0412/10/04 Planning LawPlanning Law

Special Topics in Special Topics in ZoningZoning

SLAPPSSLAPPSTelecommunicationsTelecommunicationsEminent DomainEminent DomainEnvironmentEnvironment

SLAPP’s Strategic Lawsuits SLAPP’s Strategic Lawsuits Against Public Participation Against Public Participation

ARTHUR R. COLTRAIN, JR., et al. v. KIM SHEWALTER et al., 1998

SLAPPSLAPP

A Strategic Lawsuit Against Public Participation, A Strategic Lawsuit Against Public Participation, in which a one party or sues an organization or in which a one party or sues an organization or individual in an attempt to scare it (them) into individual in an attempt to scare it (them) into dropping protests against a public initiative.dropping protests against a public initiative. Most states have laws against SLAPP’sMost states have laws against SLAPP’s Often follows public hearingsOften follows public hearings Or circulating a petitionOr circulating a petition Many deal with environmental issuesMany deal with environmental issues

What the Legal Theory of What the Legal Theory of the SLAPPthe SLAPP

Abuse of processAbuse of process DefamationDefamation Malicious nuisanceMalicious nuisance Intentional infliction of emotional distressIntentional infliction of emotional distress Invasion of privacyInvasion of privacy Interference with contractInterference with contract

What to ExpectWhat to Expect

Letter from attorney with “options” such as to Letter from attorney with “options” such as to shut up, pay money, write public apology – etcshut up, pay money, write public apology – etc

Summons and complaint – a list of the actual Summons and complaint – a list of the actual things that you are being charged withthings that you are being charged with

You find an attorney and make your initial down You find an attorney and make your initial down paymentpayment

Make sure that you meet all deadlines Make sure that you meet all deadlines mentioned in the complaintmentioned in the complaint

Always, speak only the truth as you know itAlways, speak only the truth as you know it Consider a SLAPP BACK suitConsider a SLAPP BACK suit

600 West 115600 West 115thth Street v Street v GutfeldGutfeld

Libel and Slander – Public Speech/Public OfficeLibel and Slander – Public Speech/Public Office 600 West seeks a building permit for a sidewalk 600 West seeks a building permit for a sidewalk

café from the Building Committee. 600 West café from the Building Committee. 600 West leases a café in the building for many yearsleases a café in the building for many years

Gutfeld says that the café would “denigrate” the Gutfeld says that the café would “denigrate” the composition of the building – that there were composition of the building – that there were smells and parking problems – smells and parking problems –

Gutfled says that the lease for the café is illegal Gutfled says that the lease for the café is illegal and fraudulent (he is chair of the condo and fraudulent (he is chair of the condo committee in the building.committee in the building.

The Next StepThe Next Step

The Board votes to not issue the permitThe Board votes to not issue the permit 600 West alleges that this is defamatory and 600 West alleges that this is defamatory and

seeks 4 million in damages.seeks 4 million in damages. The trial courts says that the statements made The trial courts says that the statements made

about the lease were not protected or privileged about the lease were not protected or privileged just because this was a pubic hearingjust because this was a pubic hearing

AppealAppeal

In 1978, the Supreme Court handed down its In 1978, the Supreme Court handed down its landmark defamation decision in landmark defamation decision in New York New York Times Co. v SullivanTimes Co. v Sullivan "against the background of "against the background of a profound national commitment to the principle a profound national commitment to the principle that debate on public issues should be that debate on public issues should be uninhibited, robust, and wide-open“ The uninhibited, robust, and wide-open“ The SullivanSullivan Court recognized that the protections of the First Court recognized that the protections of the First Amendment were designed to assure an " Amendment were designed to assure an " 'unfettered interchange of ideas for the bringing 'unfettered interchange of ideas for the bringing about of political and social change'about of political and social change'

ConclusionConclusion

Because stringent defamation laws--or, more Because stringent defamation laws--or, more often, the fear of their imposition--can deter and often, the fear of their imposition--can deter and silence people who would otherwise involve silence people who would otherwise involve themselves in the public debate, the Supreme themselves in the public debate, the Supreme Court has fashioned broad protection under the Court has fashioned broad protection under the Constitution. Constitution.

BackgroundBackground

1995, Darlene Coltrain became the owner of an apartment 1995, Darlene Coltrain became the owner of an apartment complex called Victory Apartments at Fourth Street and complex called Victory Apartments at Fourth Street and Fairmount Boulevard in downtown Riverside. She placed her Fairmount Boulevard in downtown Riverside. She placed her son, Arthur Coltrain, in charge of its management son, Arthur Coltrain, in charge of its management

Guns, drugs, bestiality, and parties of biblical proportions Guns, drugs, bestiality, and parties of biblical proportions ensueensue

Gang members, prostitutes and drug dealers plied their Gang members, prostitutes and drug dealers plied their respective trades. Drug users smoked "crack" in the respective trades. Drug users smoked "crack" in the stairwells. Passersby urinated in the bushes. Residents of stairwells. Passersby urinated in the bushes. Residents of Victory Apartments threw furniture, bricks, and compact Victory Apartments threw furniture, bricks, and compact discs off their balconies and scattered trash around the discs off their balconies and scattered trash around the neighborhood.neighborhood.

Coltrain v ShewalterColtrain v Shewalter

1995, Darlene Coltrain became the owner of an 1995, Darlene Coltrain became the owner of an apartment complex called Victory Apartments at apartment complex called Victory Apartments at Fourth Street and Fairmount Boulevard in Fourth Street and Fairmount Boulevard in downtown Riverside. She placed her son, Arthur downtown Riverside. She placed her son, Arthur Coltrain, in charge of its management Coltrain, in charge of its management

Guns, drugs, bestiality, and parties of biblical Guns, drugs, bestiality, and parties of biblical proportions ensueproportions ensue

Victory Apartments After a Victory Apartments After a PartyParty

The Party’s OverThe Party’s Over

Theresa Skinner complained to policeTheresa Skinner complained to police She found her tires slashed. She found her tires slashed. Kim Shewalter's car was stolen, and her family's Kim Shewalter's car was stolen, and her family's

dog was poisoned. One night, when the dog was poisoned. One night, when the Shewalters were returning home from a trip, one Shewalters were returning home from a trip, one resident of Victory Apartments trained the laser resident of Victory Apartments trained the laser sight of a gun on each family member in turn, sight of a gun on each family member in turn, while he or his companions taunted them, while he or his companions taunted them, saying, watch, ha, ha.“saying, watch, ha, ha.“

Skinner and Shewalter file a malicious nuisance Skinner and Shewalter file a malicious nuisance suit against the Coltrainssuit against the Coltrains

The Coltrains SLAPPThe Coltrains SLAPP

The Coltrains counter sue for defamationThe Coltrains counter sue for defamation The defendants cry “SLAPP”The defendants cry “SLAPP” The Coltrains dismiss their suit and Shewalters The Coltrains dismiss their suit and Shewalters

et al request attorney fees in the amount of et al request attorney fees in the amount of $73,000$73,000

They are denied fees and appeal to the Superior They are denied fees and appeal to the Superior CourtCourt

The Coltrains seem to have the Shewalters on The Coltrains seem to have the Shewalters on the ropesthe ropes

The Court Settles the The Court Settles the MatterMatter

The Coltrains said they dismissed the case because they had The Coltrains said they dismissed the case because they had run out of money but no evidence was shownrun out of money but no evidence was shown

This action arose from acts in furtherance of the defendants’ This action arose from acts in furtherance of the defendants’ constitutional rights of free speech and petition in constitutional rights of free speech and petition in connection with a public issue. Thus, the defendants were connection with a public issue. Thus, the defendants were entitled to recover attorney’s fees under the SLAPP statute.entitled to recover attorney’s fees under the SLAPP statute.

There is insufficient evidence to support the amount of There is insufficient evidence to support the amount of attorney’s fees awarded.attorney’s fees awarded.

The Coltrains only sued neighbors who had filled small The Coltrains only sued neighbors who had filled small claims actions and not all of the neighbors who had sent claims actions and not all of the neighbors who had sent them demands.them demands.

As a matter of “sound public policy and recognized equitable As a matter of “sound public policy and recognized equitable considerations”, the defendants are the prevailing party.considerations”, the defendants are the prevailing party.

The Ubiquitous Cell TowerThe Ubiquitous Cell Tower

Local Zoning and the Telecommunications Act of 1996

To be an agent of positive change, striving for continuous improvement in FCC's management and program operations

Telecommunications ActTelecommunications Act

Congress passed the Telecommunications Act of Congress passed the Telecommunications Act of 19961996

The Act precludes state and local government The Act precludes state and local government from regulating rates, except under special from regulating rates, except under special circumstancescircumstances

Local government may regulate the placement, Local government may regulate the placement, construction, modification and density of construction, modification and density of devices, with certain exceptionsdevices, with certain exceptions

ExceptionsExceptions

The placement, regulation, or review by local The placement, regulation, or review by local government:government: Shall not unreasonably discriminate among providers Shall not unreasonably discriminate among providers

of functionally equivalent servicesof functionally equivalent services Shall not prohibit or have the effect of prohibiting the Shall not prohibit or have the effect of prohibiting the

provision of personal wireless servicesprovision of personal wireless services A State or local government or instrumentality thereof A State or local government or instrumentality thereof

shall act on any request for authorization to place, shall act on any request for authorization to place, construct, or modify personal wireless service facilities construct, or modify personal wireless service facilities within a reasonable period of time after the request is within a reasonable period of time after the request is duly filed with such government or instrumentality, duly filed with such government or instrumentality, taking into account the nature and scope of such taking into account the nature and scope of such requestrequest

Exceptions - ContinuedExceptions - Continued

Any decision by a State or local government or Any decision by a State or local government or instrumentality thereof to deny a request to place, instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities construct, or modify personal wireless service facilities shall be in writing and supported by substantial shall be in writing and supported by substantial evidence contained in a written recordevidence contained in a written record

No State or local government or instrumentality No State or local government or instrumentality thereof may regulate the placement, construction, and thereof may regulate the placement, construction, and modification of personal wireless service facilities on modification of personal wireless service facilities on the basis of the environmental effects of radio the basis of the environmental effects of radio frequency emissions to the extent that such facilities frequency emissions to the extent that such facilities comply with the Commission's regulations concerning comply with the Commission's regulations concerning such emissionssuch emissions

Exceptions - FinalExceptions - Final

Any person adversely affected by any final action or Any person adversely affected by any final action or failure to act by a State or local government or any failure to act by a State or local government or any instrumentality thereof that is inconsistent with this instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or subparagraph may, within 30 days after such action or failure to act, commence an action in any court of failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person such action on an expedited basis. Any person adversely affected by an act or failure to act by a State adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the is inconsistent with clause (iv) may petition the Commission for relief.Commission for relief.

Find The Cell TowerFind The Cell Tower

Town of Amherst v Town of Amherst v Ominpoint Communications, Ominpoint Communications, 19991999

The Town of Amherst NH adopted zoning guideline The Town of Amherst NH adopted zoning guideline for tower devicesfor tower devices:: The ordinance prohibits siting of the towers in four of its 13 The ordinance prohibits siting of the towers in four of its 13

zoning districts.zoning districts. Those prohibitions may be overcome if a variance is Those prohibitions may be overcome if a variance is

obtainedobtained In four other districts, towers are allowed only through the In four other districts, towers are allowed only through the

grant of a "special exception"; the conditions for such a grant of a "special exception"; the conditions for such a special exception are set out in the ordinancespecial exception are set out in the ordinance

The ordinance also imposes setback requirements for The ordinance also imposes setback requirements for towers in the "allowed" districts, requiring towers to be set towers in the "allowed" districts, requiring towers to be set back at least 500 feet from Route 101, setback twice the back at least 500 feet from Route 101, setback twice the tower height from residential property lines, and set back a tower height from residential property lines, and set back a distance equivalent to the tower height from all other distance equivalent to the tower height from all other roads and certain other prescribed areasroads and certain other prescribed areas

OmniPoints’ PlanOmniPoints’ Plan

Omnipoint intended to construct 4 towers in Omnipoint intended to construct 4 towers in AmherstAmherst The first tower was to be sited near the northern The first tower was to be sited near the northern

entrance to the town on the so-called Bragdon Farm entrance to the town on the so-called Bragdon Farm site owned by the town. Construction of this tower site owned by the town. Construction of this tower required a special exception under the Amherst required a special exception under the Amherst ordinance and two variances from the setback ordinance and two variances from the setback restrictions from the Board; no use variance was restrictions from the Board; no use variance was required. This was also true of the second site on required. This was also true of the second site on which a town-owned recycling center was located. which a town-owned recycling center was located. Under state law, variances require a showing of Under state law, variances require a showing of hardship. hardship.

The Third SiteThe Third Site

The Third SiteThe Third Site The third tower site was a town-owned "public safety" The third tower site was a town-owned "public safety"

complex where a somewhat shorter tower already complex where a somewhat shorter tower already exists for wireless communication by the police and exists for wireless communication by the police and fire department. fire department.

Omnipoint proposed to construct a 190-foot tower that Omnipoint proposed to construct a 190-foot tower that could also be used by the police and fire department. could also be used by the police and fire department. However, this area is designated a historic district and However, this area is designated a historic district and siting towers in such a district is prohibited under the siting towers in such a district is prohibited under the town's March 1997 zoning ordinance absent a use town's March 1997 zoning ordinance absent a use variance. Thus, Omnipoint required a use variance, a variance. Thus, Omnipoint required a use variance, a setback variance, and a separate permit from the setback variance, and a separate permit from the Historic District Commission, another local bodyHistoric District Commission, another local body

The Last SiteThe Last Site

Omnipoint also reached agreement with a church to Omnipoint also reached agreement with a church to locate a fourth tower on church land near Route 101. The locate a fourth tower on church land near Route 101. The fourth site was in a district where a tower could be fourth site was in a district where a tower could be constructed with a special exception and, with one constructed with a special exception and, with one setback variance. This area, located to the south of the setback variance. This area, located to the south of the other proposed sites, lay just north of the main population other proposed sites, lay just north of the main population center in Amherst.center in Amherst.

Omnipoint also applied for and secured a single site in the Omnipoint also applied for and secured a single site in the southern area of the town--where neither special southern area of the town--where neither special exception nor variance was required. There is no exception nor variance was required. There is no indication that service for Amherst can be provided using indication that service for Amherst can be provided using this single towerthis single tower

The Hearings StageThe Hearings Stage

Omnipoint applies to the Board for the required Omnipoint applies to the Board for the required special exceptions and variances on all four sitesspecial exceptions and variances on all four sites

It also applies to the Historic District Commission It also applies to the Historic District Commission for approval to construct on the site located at the for approval to construct on the site located at the safety complexsafety complex

Omnipoint made a presentation before the Board, Omnipoint made a presentation before the Board, which received public comment and then deferred which received public comment and then deferred matters for a monthmatters for a month

The Board's minutes summarize the oral The Board's minutes summarize the oral presentation but no transcript exists. Two days presentation but no transcript exists. Two days later, the Historic District Commission met in public later, the Historic District Commission met in public session and denied Omnipoint's application, session and denied Omnipoint's application, apparently in Omnipoint's absenceapparently in Omnipoint's absence

The Local AppealThe Local Appeal

Omnipoint immediately appealed the Commission's Omnipoint immediately appealed the Commission's decision to the Zoning Board of Adjustment, which decision to the Zoning Board of Adjustment, which can override the Historic District Commission. can override the Historic District Commission.

On October 21, 1997, the Zoning Board met again. On October 21, 1997, the Zoning Board met again. Omnipoint provided additional information and Omnipoint provided additional information and answered more questions from the Board, and public answered more questions from the Board, and public comments were again taken. comments were again taken.

The hearing was continued until November when the The hearing was continued until November when the same process was repeated. The Board then deferred same process was repeated. The Board then deferred decision until December 1997, saying that there decision until December 1997, saying that there would be no more presentations or public testimonywould be no more presentations or public testimony

At all of these meetings, a number of residents At all of these meetings, a number of residents questioned or opposed the project, citing primarily questioned or opposed the project, citing primarily concerns about visual blight and impairment of concerns about visual blight and impairment of property valuesproperty values

Omnipoint is AnxiousOmnipoint is Anxious

On December 8On December 8thth Omnipoint filed a lawsuit under Omnipoint filed a lawsuit under the Telecommunications Act before the U.S. the Telecommunications Act before the U.S. District CourtDistrict Court The Telecommunications Act requires that decisions be The Telecommunications Act requires that decisions be

rendered in a “reasonable period of time”rendered in a “reasonable period of time” The requirement for “substantial evidence” would The requirement for “substantial evidence” would

include that all decisions be given in a written form – include that all decisions be given in a written form – not an oral reportnot an oral report

In The Mean TimeIn The Mean Time

The Amherst BZA meets December 16 and The Amherst BZA meets December 16 and denies every request for a variance and special denies every request for a variance and special use permituse permit

Omnipoint files for a reconsideration, and the Omnipoint files for a reconsideration, and the BZA meets again in February – Omnipoint does BZA meets again in February – Omnipoint does not offer any new evidencenot offer any new evidence

This time the BZA issues extensive, written This time the BZA issues extensive, written findings of fact (most were standard template findings of fact (most were standard template language)language)

District CourtDistrict Court

The District Court finds that the actions of The District Court finds that the actions of Amherst had the “effect of denying cellular Amherst had the “effect of denying cellular phone service in the town” in violation of the phone service in the town” in violation of the Telecommunications ActTelecommunications Act

The District Court issues an injunctionThe District Court issues an injunction Amherst appeals to the U.S Court of Appeals to Amherst appeals to the U.S Court of Appeals to

lift the injunctionlift the injunction

Appeals CourtAppeals Court

If the criteria or their administration effectively If the criteria or their administration effectively preclude towers no matter what the carrier does, preclude towers no matter what the carrier does, they may amount to a ban "in effect" even though they may amount to a ban "in effect" even though substantial evidence will almost certainly exist for substantial evidence will almost certainly exist for the denialthe denial

In that event, the regulation is unlawful under the In that event, the regulation is unlawful under the statute's "effect" provision. But the burden for the statute's "effect" provision. But the burden for the carrier invoking this provision is a heavy one: to carrier invoking this provision is a heavy one: to show from language or circumstances not just show from language or circumstances not just that that thisthis application has been rejected but that application has been rejected but that further reasonable efforts are so likely to be further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.fruitless that it is a waste of time even to try.

FindingsFindings

In this case, Amherst has not formally banned In this case, Amherst has not formally banned towers, but rather required prior permission towers, but rather required prior permission case by case. And on this record, there is no case by case. And on this record, there is no showing of such fixed hostility by the Board that showing of such fixed hostility by the Board that one can conclude that further applications one can conclude that further applications would be useless. While some of the Amherst would be useless. While some of the Amherst citizens who testified evidently oppose any citizens who testified evidently oppose any system in the town, several board members system in the town, several board members stressed that their concern was primarily with stressed that their concern was primarily with the 190-foot size and that negotiations with the 190-foot size and that negotiations with Omnipoint would be welcomeOmnipoint would be welcome

ConclusionConclusion

Before any further litigation, Omnipoint might find it Before any further litigation, Omnipoint might find it prudent to discuss with the Board an amicable prudent to discuss with the Board an amicable resolution or an agreed upon procedure to achieve resolution or an agreed upon procedure to achieve one. The Board must also face reality. If the Board's one. The Board must also face reality. If the Board's position is that it can just sit back and deny all position is that it can just sit back and deny all applications, that position in the end could, if applications, that position in the end could, if maintained, prove fatal to the Board rather than maintained, prove fatal to the Board rather than Omnipoint. Under federal law, the town can control Omnipoint. Under federal law, the town can control the siting of facilities but--as several Board the siting of facilities but--as several Board members admitted--it cannot preclude wireless members admitted--it cannot preclude wireless service altogether. Nor, in the face of a vigilant service altogether. Nor, in the face of a vigilant district court, can the town exhaust applicants by district court, can the town exhaust applicants by requiring successive applications without giving any requiring successive applications without giving any clue of what will do the trickclue of what will do the trick

Omnipoint v Pine Grove, PA Omnipoint v Pine Grove, PA - 1999- 1999

Omnipoint applies for a “special exception” to Omnipoint applies for a “special exception” to place a 150’ monopole cell tower in a rural part place a 150’ monopole cell tower in a rural part of the townshipof the township

The BZA held hearings and the representative The BZA held hearings and the representative from Omnipoint testified that the tower would from Omnipoint testified that the tower would be surrounded by 80 – 90’ trees and thus would be surrounded by 80 – 90’ trees and thus would not be visible for at least 500 feetnot be visible for at least 500 feet

Omnipoint also stated that they thought there Omnipoint also stated that they thought there were studies to suggest that such towers did not were studies to suggest that such towers did not damage property value – but could not actually damage property value – but could not actually cite any studiescite any studies

The TowerThe Tower

The BZA HearingThe BZA Hearing

The neighbors testifyThe neighbors testify:: Several local residents questioned OmniPoint about the Several local residents questioned OmniPoint about the

visibility of the tower, its effects on property values, and visibility of the tower, its effects on property values, and especially health threats associated with its radio especially health threats associated with its radio emissions.emissions.

A neighboring property owner, testified that he estimated A neighboring property owner, testified that he estimated the trees in the area to be approximately 60 feet in height. the trees in the area to be approximately 60 feet in height. As a result, he believed the tower would be visible from As a result, he believed the tower would be visible from his property, especially in winter, and therefore would hurt his property, especially in winter, and therefore would hurt his property value. his property value.

He also testified, allegedly on the basis of a classified He also testified, allegedly on the basis of a classified  report to which he had access, that the tower's high  report to which he had access, that the tower's high intensity radio transmissions would be harmful to intensity radio transmissions would be harmful to neighbors' health. neighbors' health.

This is Who Gave The Secret This is Who Gave The Secret Report TO One of the Report TO One of the NeighborsNeighbors

BZA RulingBZA Ruling

The BZA denied the exception, noting:The BZA denied the exception, noting: The Board denied Omnipoint's requested exception The Board denied Omnipoint's requested exception

becausebecause a) no studies were done on the effect of adjoining land a) no studies were done on the effect of adjoining land

owners’ property valuesowners’ property values b) the burden of proof with respect to the proposed b) the burden of proof with respect to the proposed

structure not adversely affecting the general character structure not adversely affecting the general character of the neighborhood was not met.of the neighborhood was not met.

Omnipoint then brought an action alleging the Board's Omnipoint then brought an action alleging the Board's denial of the special exception violated the denial of the special exception violated the Telecommunications Act Telecommunications Act

District CourtDistrict Court

The District Court rules for Omnipoint:The District Court rules for Omnipoint: The District Court found the Board's decision had not The District Court found the Board's decision had not

been based on substantial evidence because, first, the been based on substantial evidence because, first, the evidence before the Board did not establish the evidence before the Board did not establish the detrimental effect of the proposed tower with a "high detrimental effect of the proposed tower with a "high degree of probability" as required by Pennsylvania lawdegree of probability" as required by Pennsylvania law

And second, the decision was based on aesthetic And second, the decision was based on aesthetic considerations and a desire to preserve property considerations and a desire to preserve property valuesvalues

Pine Grove appeals to the U.S Court of AppealsPine Grove appeals to the U.S Court of Appeals

Court of AppealsCourt of Appeals

Reasoning of the Court:Reasoning of the Court: The Board contends the special exception was denied The Board contends the special exception was denied

for aesthetic reasons and to protect the values of for aesthetic reasons and to protect the values of neighboring propertiesneighboring properties

Such considerations are sufficient to support the denial Such considerations are sufficient to support the denial of a special exception and are consistent with of a special exception and are consistent with Congress' intent to allow localities to accommodate Congress' intent to allow localities to accommodate traditional zoning considerations in siting wireless traditional zoning considerations in siting wireless telephone transmitterstelephone transmitters

The question, therefore, is whether the Board had The question, therefore, is whether the Board had before it substantial evidence that the proposed before it substantial evidence that the proposed special exception would cause deterioration to the special exception would cause deterioration to the aesthetic character of the area or to neighboring aesthetic character of the area or to neighboring property values property values

So, The Question Is:So, The Question Is:

Did the Board have substantial evidence?Did the Board have substantial evidence? Eleven neighbors asserted that the monopole would be Eleven neighbors asserted that the monopole would be

visible over the tree line and would damage their visible over the tree line and would damage their property valuesproperty values

But Ravegun, who spoke for all eleven neighbors, But Ravegun, who spoke for all eleven neighbors, addressed the visibility of the tower only briefly and addressed the visibility of the tower only briefly and presented no evidence regarding property values. presented no evidence regarding property values.

Ravegun's comments and the questions that he and Ravegun's comments and the questions that he and other residents asked focused more on alleged health other residents asked focused more on alleged health effects, which the Board may not considereffects, which the Board may not consider

A few generalized concerns about a potential decrease A few generalized concerns about a potential decrease in property values, especially in light of contradictory in property values, especially in light of contradictory testimony, does not seem adequate to support a testimony, does not seem adequate to support a conclusion that the permits should be denied conclusion that the permits should be denied

Some Take Home PointsSome Take Home Points

Do not rely on comments of the public to find Do not rely on comments of the public to find factsfacts

Do not base findings on aesthetics alone unless Do not base findings on aesthetics alone unless there is direct evidence that the tower will there is direct evidence that the tower will dominate the area and change its characterdominate the area and change its character

Substantial evidence means “written testimony” Substantial evidence means “written testimony” based on the advice of experts or studiesbased on the advice of experts or studies

You might get the idea that Omnipoint, like You might get the idea that Omnipoint, like Oxford House, sues early and oftenOxford House, sues early and often

Omnipoint Communication v Omnipoint Communication v BZA of Easttown TownshipBZA of Easttown Township

248 F. 3d 101, 3248 F. 3d 101, 3rdrd Circuit, April 2001 Circuit, April 2001 Omnipoint applied for a variance from a height Omnipoint applied for a variance from a height

limitation of 35 feet in a neighborhoodlimitation of 35 feet in a neighborhood Omnipoint intended to place a cell tower on a Omnipoint intended to place a cell tower on a

vacant residential lot owned by a Synagoguevacant residential lot owned by a Synagogue The height of the tower was 110 feet with a 30 x The height of the tower was 110 feet with a 30 x

30 foot based surrounded by a chain link fence30 foot based surrounded by a chain link fence To reduce the aesthetic impact, Omnipoint To reduce the aesthetic impact, Omnipoint

suggested that it be used as a flag polesuggested that it be used as a flag pole

The BZAThe BZA

The BZA denied the variance and issued a 10 The BZA denied the variance and issued a 10 page findings of factpage findings of fact Omnipoint did not meet its burden in showing a Omnipoint did not meet its burden in showing a

hardshiphardship Special exceptions were available in other zones, Special exceptions were available in other zones,

including the B-1 business districtincluding the B-1 business district There were several other cell or PSC towers local in There were several other cell or PSC towers local in

Easttown – therefore this did not exclude serviceEasttown – therefore this did not exclude service

Omnipoint’s ChallengeOmnipoint’s Challenge

Omnipoint challenged the decision in the U.S. Omnipoint challenged the decision in the U.S. District CourtDistrict Court Omnipoint claims that this location “fills a gap” in their Omnipoint claims that this location “fills a gap” in their

service area and is crucial to cell phone operationservice area and is crucial to cell phone operation Omnipoint claims that this is a violation of the Omnipoint claims that this is a violation of the

Telecommunications Act of 1996 because the decision Telecommunications Act of 1996 because the decision was not based on substantial evidence – only aesthetic was not based on substantial evidence – only aesthetic concernsconcerns

The ordinance which requires a variance is The ordinance which requires a variance is exclusionary and has the effect of preventing cell exclusionary and has the effect of preventing cell phone operation in the townshipphone operation in the township

The District CourtThe District Court

The U.S. District Court finds The U.S. District Court finds for Omnipontfor Omnipont The denial is based solely The denial is based solely

on aesthetic considerations on aesthetic considerations and did not bear directly and did not bear directly on health, safety, and on health, safety, and welfarewelfare

The TCA requires that The TCA requires that substantial evidence is substantial evidence is required to deny an required to deny an application for a application for a telecommunications devicetelecommunications device

The concerns listed in the The concerns listed in the findings of facts were not findings of facts were not substantial evidencesubstantial evidence

Easttown AppealsEasttown Appeals

The U.S. Court of Appeals reverses the District The U.S. Court of Appeals reverses the District Court and made these findings:Court and made these findings: The Court first found that to establish that local zoning The Court first found that to establish that local zoning

violated the TCA the provider must show first that its violated the TCA the provider must show first that its facility will fill an existing significant gap in the ability facility will fill an existing significant gap in the ability of remote users to access the national telephone of remote users to access the national telephone network; and second, that the manner in which it network; and second, that the manner in which it proposes to fill the gap in service is the least intrusiveproposes to fill the gap in service is the least intrusive

The court noted that height restrictions in residential The court noted that height restrictions in residential zones are a common and reasonable restriction to zones are a common and reasonable restriction to maintain the residential character of the maintain the residential character of the neighborhoodneighborhood..

CommentsComments

The Appeals Court notes that the district court The Appeals Court notes that the district court had been reading too many Pennsylvania cases had been reading too many Pennsylvania cases about exclusion – the over use of aesthetics to about exclusion – the over use of aesthetics to prevent the expansion of future populationprevent the expansion of future population

Aesthetics are OK. A few generalized Aesthetics are OK. A few generalized expressions about aesthetics are not substantial expressions about aesthetics are not substantial evidence – but a 10 page report showing impact evidence – but a 10 page report showing impact on nearby properties is substantialon nearby properties is substantial

ConclusionsConclusions

The rule against exclusionary zoning does not The rule against exclusionary zoning does not impose upon a municipality the duty to assure impose upon a municipality the duty to assure that all providers must have a suitable site that all providers must have a suitable site within the municipality. The court held that to be within the municipality. The court held that to be exclusionary the ordinance must effectively exclusionary the ordinance must effectively foreclose all providers from operating. In this foreclose all providers from operating. In this case, the ordinance was not exclusionary case, the ordinance was not exclusionary because other service providers had previously because other service providers had previously constructed towers in other zoning districts in constructed towers in other zoning districts in the municipality. the municipality.

Are These Cell Towers?Are These Cell Towers?

Find The Cell AntennaeFind The Cell Antennae

Some More ExamplesSome More Examples

12/10/0412/10/04 Planning LawPlanning Law

The Process of The Process of Eminent DomainEminent Domain

Public Necessity and Just CompensationPublic Necessity and Just Compensation

Eminent Domain – Legal Eminent Domain – Legal TheoryTheory

Eminent Domain is an ancient powerEminent Domain is an ancient power It is the pre-eminent power of governmentIt is the pre-eminent power of government Assuming that all land and land rights devolve Assuming that all land and land rights devolve

from the King – the sovereign’s power extends from the King – the sovereign’s power extends to the re-possession of any land upon showing to the re-possession of any land upon showing of a public necessityof a public necessity

Under our 5Under our 5thth Amendment – “nor shall property Amendment – “nor shall property be taken by the government except for a public be taken by the government except for a public purpose and upon payment of just purpose and upon payment of just compensation”compensation”

What Is Condemnation?What Is Condemnation?

The government may “take” in three ways:The government may “take” in three ways: Eminent DomainEminent Domain Regulatory or Categorical Taking of All or Practically All Regulatory or Categorical Taking of All or Practically All

Value Related to UseValue Related to Use Inverse Condemnation – When the government, by its Inverse Condemnation – When the government, by its

actions, makes the use of private property untenableactions, makes the use of private property untenable

Airport CasesAirport Cases Military BasesMilitary Bases Damage resulting from flooding or dam projectsDamage resulting from flooding or dam projects A project which undermines nearby structural A project which undermines nearby structural

foundationsfoundations

What is Just CompensationWhat is Just Compensation

Just compensation is based on valueJust compensation is based on value Value can have many faces but “fair market Value can have many faces but “fair market

value” is the standard used in Eminent Domainvalue” is the standard used in Eminent Domain This is classically defined as “what a willing This is classically defined as “what a willing

seller with take and a willing buyer offer”seller with take and a willing buyer offer” Justice Butler defined just compensation as:Justice Butler defined just compensation as:

““The owner is entitled to the full money equivalent of The owner is entitled to the full money equivalent of the property taken, and thereby to be put in as good a the property taken, and thereby to be put in as good a position pecuniarily as he would have occupied, if the position pecuniarily as he would have occupied, if the property had not been taken”property had not been taken”

Value – The PrinciplesValue – The Principles

Courts talk in terms of present market value and Courts talk in terms of present market value and not future or speculative value unless the not future or speculative value unless the probability of such future value affects present probability of such future value affects present valuevalue

If the special adaptability of the land for the If the special adaptability of the land for the projected use creates a special demand by ordinary projected use creates a special demand by ordinary purchasers, this may be included in present valuepurchasers, this may be included in present value

The market value is not all of the just The market value is not all of the just compensation picture.compensation picture.

It is only a payment for strict money value on a It is only a payment for strict money value on a well defined parcelwell defined parcel

Damages And ValueDamages And Value

Consequential DamagesConsequential Damages Term used to describe the personal injuries such as the Term used to describe the personal injuries such as the

expense of moving, inconvenience, interruption of expense of moving, inconvenience, interruption of business, loss of good will and under rare business, loss of good will and under rare circumstances, pain and sufferingcircumstances, pain and suffering

The major principle is that the owner should only be The major principle is that the owner should only be compensated for those things of value that cannot be compensated for those things of value that cannot be taken with himtaken with him

Severance DamageSeverance Damage The damage resulting from diminution in market value The damage resulting from diminution in market value

of the owner’s remainder – the relationship of the part of the owner’s remainder – the relationship of the part to the wholeto the whole

Public PurposePublic Purpose

Public purpose is shown when the holder of a Public purpose is shown when the holder of a certificate of necessity demonstrates a certificate of necessity demonstrates a compelling need (under their corporate purpose) compelling need (under their corporate purpose) to acquire real property to increase the benefit to acquire real property to increase the benefit to the public in generalto the public in general

Thus, there is a general benefit in:Thus, there is a general benefit in: Building roadsBuilding roads Supplying electrical powerSupplying electrical power Removing and redeveloping blighted areasRemoving and redeveloping blighted areas Creating flood controlCreating flood control

Case ExamplesCase Examples

Public Roads

SidewalksParking Lots

Riley v District of Columbia Riley v District of Columbia Redevelopment Corporation, 1956Redevelopment Corporation, 1956

The District of Columbia instituted eminent The District of Columbia instituted eminent domain against 45 parcels of land for the domain against 45 parcels of land for the purpose of clearance for a public buildingpurpose of clearance for a public building

Mrs. Riley was given 3 appraisals:Mrs. Riley was given 3 appraisals: $6,500$6,500 $7,000$7,000 $6,200$6,200

The jury returned an award of $7,000The jury returned an award of $7,000

This is A Case About Mrs. This is A Case About Mrs. RileyRiley

She is not the sharpest tack on the bulletin board

BackgroundBackground

Mrs. Riley bought the Mrs. Riley bought the house in 1951 for a total of house in 1951 for a total of $9,950$9,950 She added $877 worth of She added $877 worth of

improvementsimprovements When it was seized in 1954 When it was seized in 1954

she owned a total of she owned a total of $8,902 for the mortgage$8,902 for the mortgage

Thus the award was $3,800 Thus the award was $3,800 less than the purchase less than the purchase price and about $1,900 less price and about $1,900 less than her total investmentthan her total investment

Mrs. Riley was ticked off Mrs. Riley was ticked off and appealed the awardand appealed the award

Appeals CourtAppeals Court

The Court begins by saying that just compensation The Court begins by saying that just compensation means the full and perfect equivalent in money of means the full and perfect equivalent in money of the property takenthe property taken

The Court then examines two key questions:The Court then examines two key questions: The nature of the property in 1951The nature of the property in 1951 The nature of the purchase in 1951The nature of the purchase in 1951

The Court found the house to be solidly built and in The Court found the house to be solidly built and in good condition for its 50 years of agegood condition for its 50 years of age

Mrs. Riley purchased the home for her daughter and Mrs. Riley purchased the home for her daughter and her elderly Mother – it was conveniently located her elderly Mother – it was conveniently located within walking distance of the Civil Service where within walking distance of the Civil Service where Mrs. Riley workedMrs. Riley worked

It was all she could affordIt was all she could afford

Can You See What’s Can You See What’s Coming?Coming?

     

       

Real Estate and AppraisersReal Estate and Appraisers

A real estate agent testified for Mrs. Riley. He had A real estate agent testified for Mrs. Riley. He had sold a large amount of homes in the area for sold a large amount of homes in the area for $10,000$10,000

A neighbor purchased a home adjacent to Mrs. A neighbor purchased a home adjacent to Mrs. Riley in 1952 for $10,800Riley in 1952 for $10,800

The appraisers said the house was approximately The appraisers said the house was approximately 40 percent depreciated and could be built today 40 percent depreciated and could be built today for $9,355. It had no income producing propertiesfor $9,355. It had no income producing properties

The appraisers felt that the purchase price bore The appraisers felt that the purchase price bore no relation to the fair value. She paid too much for no relation to the fair value. She paid too much for it – almost stupidly excessiveit – almost stupidly excessive

And The CourtAnd The Court

It is the ordinary rule that the burden of proof in a commendation case rests with the owner

But this is not ordinary

Mrs. Riley seeks nothing – the government here is taking her private property – her home

To take it is the highest form of power and requires the highest form of justice – unequivocal just compensation

God Strikes Down For Mrs. God Strikes Down For Mrs. O’ReilyO’Reily

Which Reminds MeWhich Reminds Me

Inverse Condemnation and Inverse Condemnation and The Rule of RemnantsThe Rule of Remnants

Martin v Port of Seattle, Martin v Port of Seattle, 19641964

In this case 196 property owners seek damages In this case 196 property owners seek damages arising from inverse condemnation against the arising from inverse condemnation against the Seattle-Tacoma AirportSeattle-Tacoma Airport

The damage is from low altitude flights of The damage is from low altitude flights of jetliners over their propertyjetliners over their property

The essential legal question is whether the The essential legal question is whether the property owners actually have a claim for property owners actually have a claim for damage from the noise of aircraftdamage from the noise of aircraft

BackgroundBackground

The property in question forms a rectangular The property in question forms a rectangular area about one mile long and ½ mile wide area about one mile long and ½ mile wide directly south of the primary runwaydirectly south of the primary runway

Jetliners in the process of landing pass over this Jetliners in the process of landing pass over this area at approximately 500 feet in altitudearea at approximately 500 feet in altitude

Basic problemsBasic problems Vibration is sufficient to throw dishes from shelvesVibration is sufficient to throw dishes from shelves Conversation is interrupted from noiseConversation is interrupted from noise Sleep is disrupted, and the noise painful to manySleep is disrupted, and the noise painful to many Many cannot sell their homesMany cannot sell their homes

Primary Runway

The Airport RespondsThe Airport Responds

Congress has placed all navigable airspace Congress has placed all navigable airspace within the public domainwithin the public domain

The damage is incidental and does not The damage is incidental and does not constitute a physical invasionconstitute a physical invasion

At most, it damages but does not take the At most, it damages but does not take the propertyproperty

If a property owner can prove a diminution of If a property owner can prove a diminution of value we should pay for that increment only – value we should pay for that increment only – not be required to take the entire propertynot be required to take the entire property

The Trial CourtThe Trial Court

The trial court found that the interference The trial court found that the interference amounted to a physical invasion of the air amounted to a physical invasion of the air easement and constituted an inverse easement and constituted an inverse commendationcommendation

When the noise and vibration deprives the land When the noise and vibration deprives the land owner of an essential element of their land the owner of an essential element of their land the result should be the same as if the airport operator result should be the same as if the airport operator brings the condemnation of the propertybrings the condemnation of the property

Appeals CourtAppeals Court

This is no different that it would be if the land in This is no different that it would be if the land in question would have been condemned by the question would have been condemned by the State when the airport land was acquiredState when the airport land was acquired

If the damage is slight – then an owner should If the damage is slight – then an owner should be entitled to payment for the increment of be entitled to payment for the increment of diminishment of enjoyment – even a slight diminishment of enjoyment – even a slight burden must be paidburden must be paid

If the damage is substantial, then the owner If the damage is substantial, then the owner should be entitled to full and perfect recovery of should be entitled to full and perfect recovery of property under formal condemnationproperty under formal condemnation

RemnantsRemnants

City of Crookstown v City of Crookstown v Erickson Minn. 1955Erickson Minn. 1955

The City condemned land for a sewerage The City condemned land for a sewerage treatment plant, discharge system, and treatment plant, discharge system, and administration building from a Mr. Ericksonadministration building from a Mr. Erickson

They did not take all the land Erickson owned They did not take all the land Erickson owned and left a remnant of 1.3 acre plus the houseand left a remnant of 1.3 acre plus the house

Erickson appealed the judgment and claimed Erickson appealed the judgment and claimed that the contemplated use would damage his that the contemplated use would damage his remainderremainder

The Erickson Tract TakingThe Erickson Tract Taking

Area of Taking Formally Erickson Tract

Erickson House

Erickson Tract Remainder

Sewer Plant Office

Waste Water Treatment Plant

Appeals CourtAppeals Court

The Court sets out important rules in this caseThe Court sets out important rules in this case When no part of an owner’s land is taken, and the use When no part of an owner’s land is taken, and the use

of adjoining land causes damage, the damage is not of adjoining land causes damage, the damage is not compensable unless it is peculiar to the adjoining land compensable unless it is peculiar to the adjoining land and not the type suffered by the public in generaland not the type suffered by the public in general

Where there is a partial taking, the injured owner is Where there is a partial taking, the injured owner is required to show damage peculiar to the remaining required to show damage peculiar to the remaining property and this becomes part of the compensationproperty and this becomes part of the compensation

When the use of the land taken constitutes and When the use of the land taken constitutes and integral and inseparable part of the single use, the integral and inseparable part of the single use, the government will be required to take the entire wholegovernment will be required to take the entire whole

Why Not Future Value?Why Not Future Value?

In Board of Education v Baczewski (1992) a In Board of Education v Baczewski (1992) a Michigan School District condemned 110 acres Michigan School District condemned 110 acres of land for a future schoolof land for a future school

The Board admits that it may continue to use The Board admits that it may continue to use the present High School for another 30 yearsthe present High School for another 30 years

It admits that it took the land to save money It admits that it took the land to save money because of increased prices in the futurebecause of increased prices in the future

Should the Board have paid on future value Should the Board have paid on future value rather than current fair market value?rather than current fair market value?

Court RuleCourt Rule

School Board officials would not have been School Board officials would not have been performing their duties had they waited for the performing their duties had they waited for the present school to deteriorate before they present school to deteriorate before they purchased landpurchased land

Fair market value is all that is requiredFair market value is all that is required

Public UsePublic Use

Poletown Economic Development Corporation v City of Detroit, 1981

“The Riddle of Public Use”

Legal QuestionLegal Question

The Detroit Economic Development Corporation The Detroit Economic Development Corporation moved to condemn a large area of old housing moved to condemn a large area of old housing and buildings and convey it to General Motors and buildings and convey it to General Motors as a site for an auto assembly plantas a site for an auto assembly plant

This case raises a paramount question:This case raises a paramount question: Can the City, acting under a certificate of necessity, Can the City, acting under a certificate of necessity,

acquire property through condemnation for a private acquire property through condemnation for a private company without violating the public use doctrinecompany without violating the public use doctrine

BackgroundBackground

The Michigan Statute that authorizes a The Michigan Statute that authorizes a certificate of necessity for economic certificate of necessity for economic development purpose states that:development purpose states that: . …the power of eminent domains not be invoked . …the power of eminent domains not be invoked

except to further a public use or purpose”except to further a public use or purpose”

The homeowners association of Poletown The homeowners association of Poletown asserts that the terms “pubic use or purpose” asserts that the terms “pubic use or purpose” are not synonymousare not synonymous

The Poletown UprisingThe Poletown Uprising

John Sarber stands guard outside of his home in Poletown. He was the last holdout – suing the City for $15 million.

The Passion PlayThe Passion Play

In 1981, General Motors and the cities of Detroit and In 1981, General Motors and the cities of Detroit and Hamtramck collaborated in a grand plan to bring Hamtramck collaborated in a grand plan to bring industry back to what was perceived as a dying city, to industry back to what was perceived as a dying city, to add to the two cities' tax coffers and to keep the add to the two cities' tax coffers and to keep the automotive business centered in Detroit. automotive business centered in Detroit.

In the process, the city lost a neighborhood, and 4,200 In the process, the city lost a neighborhood, and 4,200 people lost their homespeople lost their homes

At the tail end of the once promising urban renewal At the tail end of the once promising urban renewal movement of the 1960's, Detroit had not seen much movement of the 1960's, Detroit had not seen much improvement. Neighborhoods had been razed for improvement. Neighborhoods had been razed for expressways, or for 'new development' which never expressways, or for 'new development' which never materialized. Stores and shops were closing down at a materialized. Stores and shops were closing down at a rapid pace, and industry was turning elsewhere, moving rapid pace, and industry was turning elsewhere, moving out to the far suburbs where space was not at a out to the far suburbs where space was not at a premium and crime and crumbling infrastructure were premium and crime and crumbling infrastructure were not issues. not issues.

The DealThe Deal

And then General Motors and Detroit Mayor Coleman And then General Motors and Detroit Mayor Coleman Young hatched a plan: If the city would get the land, Young hatched a plan: If the city would get the land, the auto company would build a state-of-the-art plant, the auto company would build a state-of-the-art plant, crossing the border with Hamtramck, employing 6,000 crossing the border with Hamtramck, employing 6,000 people and providing a glittering example of what the people and providing a glittering example of what the auto companies and their suppliers could do in the auto companies and their suppliers could do in the city of their birthcity of their birth

At first glance the project seemed brilliant. In 1979, At first glance the project seemed brilliant. In 1979, the old Dodge Main plant in Hamtramck had closed the old Dodge Main plant in Hamtramck had closed and that city lost $1.7 million in tax revenue. and that city lost $1.7 million in tax revenue. Hamtramck was happy to join in the deal. But there Hamtramck was happy to join in the deal. But there were obstacles in Detroit -- 1,300 homes, 140 were obstacles in Detroit -- 1,300 homes, 140 businesses, six churches and one hospital lay in the businesses, six churches and one hospital lay in the path of the proposed plantpath of the proposed plant

The ResistanceThe Resistance

Resistance began to build as some residents took in the Resistance began to build as some residents took in the scope of the project. There were lawsuits and sit-ins scope of the project. There were lawsuits and sit-ins and demonstrationsand demonstrations

Ralph Nader joinied forces with the Poletown Ralph Nader joinied forces with the Poletown Neighborhood Council, Nader's Raiders began a public Neighborhood Council, Nader's Raiders began a public relations war against General Motors and the city of relations war against General Motors and the city of Detroit. Nader called Coleman Young a "petty dictator." Detroit. Nader called Coleman Young a "petty dictator." Young called him a "carpetbagger from Washington" Young called him a "carpetbagger from Washington" and claimed he had a "psychotic hatred of GM." and claimed he had a "psychotic hatred of GM."

Another Poletown group, the Citizens District Council, Another Poletown group, the Citizens District Council, supported the plan. They accused the opposing group supported the plan. They accused the opposing group of calling secret meetings with Nader and Gray Panther of calling secret meetings with Nader and Gray Panther leader Maggie Kughn and then presenting opinions of a leader Maggie Kughn and then presenting opinions of a small minority as if they represented the entire small minority as if they represented the entire neighborhood. neighborhood.

Marches and Marches and DemonstrationsDemonstrations

Enter the CourtsEnter the Courts

The Michigan Supreme Court receives the case:The Michigan Supreme Court receives the case: The challenge is the constitutionality of using the power The challenge is the constitutionality of using the power

of eminent domain to condemn one person’s property to of eminent domain to condemn one person’s property to convey it to another private person in order to bolster convey it to another private person in order to bolster the economythe economy

The central question is simple. All agree that the The central question is simple. All agree that the use of condemnation for a public purpose is use of condemnation for a public purpose is permitted. All agree that the use of permitted. All agree that the use of condemnation for a private purpose is forbidden. condemnation for a private purpose is forbidden.

The heart of the issue is whether the proposed The heart of the issue is whether the proposed condemnation is for the primary benefit of the condemnation is for the primary benefit of the public of GM as a private user.public of GM as a private user.

Court CommentsCourt Comments

Eminent domain in this case is to be used Eminent domain in this case is to be used primarily to accomplish the essential public primarily to accomplish the essential public purposes of alleviating unemployment and purposes of alleviating unemployment and revitalizing the economic base of the communityrevitalizing the economic base of the community

The benefit to a private landowner, GM, is The benefit to a private landowner, GM, is incidentalincidental

If the public benefit was not so clear and If the public benefit was not so clear and significant, the court would not hesitate to strike significant, the court would not hesitate to strike it downit down

Poletown TodayPoletown Today

                              

The public benefit cannot be speculative or marginal but must be clear and significant if it is to be within a public purpose

Houston v U.S. Gypsum, Houston v U.S. Gypsum, 19811981

The Houstons have title to Stack Island and all The Houstons have title to Stack Island and all accretionsaccretions

River accretion causes erosion to the top part of River accretion causes erosion to the top part of the island and the new material moves to the the island and the new material moves to the bottom part of land owned by U.S. Gypsumbottom part of land owned by U.S. Gypsum

U.S. Gypsum removes many trees on the U.S. Gypsum removes many trees on the accretion part and the Houstons sue for accretion part and the Houstons sue for recovery of money for the value of the treesrecovery of money for the value of the trees

The Houston claim that the new part of the The Houston claim that the new part of the island is theirs by right of adverse possessionisland is theirs by right of adverse possession

Layout of Stack IslandLayout of Stack Island

LOUISIANA

MississippiMississippi River

Stack Island

Accretion Portion

U.S. Gypsum Property

More BackgroundMore Background

The amount of land claimed is about 1000 acres The amount of land claimed is about 1000 acres of marsh and sand with many willow treesof marsh and sand with many willow trees

The accretion took place over a period of 50 The accretion took place over a period of 50 yearsyears

The Mississippi Statute allows title to property The Mississippi Statute allows title to property after a period of 10 yearsafter a period of 10 years                                     

The Test For Adverse The Test For Adverse PossessionPossession

The common law tests for adverse possession The common law tests for adverse possession are:are: Statutory authorityStatutory authority PossessionPossession

ActualActual OpenOpen ContinuousContinuous

HostilityHostility

PossessionPossession

The Houston’s possessory acts:The Houston’s possessory acts: Blaized treesBlaized trees Painted boundariesPainted boundaries Posted no trespassingPosted no trespassing ReforestationReforestation Grazed cattle and goatsGrazed cattle and goats Erected fencesErected fences Paid Taxes on the entire propertyPaid Taxes on the entire property

Non-Possessory ActsNon-Possessory Acts HuntedHunted Granted hunting leases to a 70 member hunting clubGranted hunting leases to a 70 member hunting club Posted newspaper notices prohibiting huntingPosted newspaper notices prohibiting hunting

Open Ownership HostilityOpen Ownership Hostility

Acts of Ownership:Acts of Ownership: In 1954 the Houstons executed an oil and gas leaseIn 1954 the Houstons executed an oil and gas lease Instituted action in Mississippi state court to quiet title Instituted action in Mississippi state court to quiet title

and remove all clouds from their ownershipand remove all clouds from their ownership In 1957 the Houstons had a direct confrontation In 1957 the Houstons had a direct confrontation

with U.S. Gypsumwith U.S. Gypsum They went to U.S. Gypsum and offered to sell them a They went to U.S. Gypsum and offered to sell them a

profit to the trees that they had plantedprofit to the trees that they had planted Gypsum refused and said that they owned the south Gypsum refused and said that they owned the south

part of the islandpart of the island This started a round of hostile correspondence for 15 This started a round of hostile correspondence for 15

yearsyears

The AppealThe Appeal

Gypsum claims that the act of the Houstons Gypsum claims that the act of the Houstons were not sufficient to constitute possessionwere not sufficient to constitute possession

The court states the classic test for possession:The court states the classic test for possession: ““Did the person claiming to hold adversely exercise Did the person claiming to hold adversely exercise

towards this property the same character of control towards this property the same character of control which he used toward property actually his”which he used toward property actually his”

The underlying principle is that the claim must The underlying principle is that the claim must be open and notorious in such as way as to be open and notorious in such as way as to state the claim as a presumptive notice to the state the claim as a presumptive notice to the alleged owner of the claim – or “in your face.”alleged owner of the claim – or “in your face.”

ConclusionConclusion

Gypsum had actual notice to the claim of the Gypsum had actual notice to the claim of the Houstons.Houstons.

The Houstons provided Gypsum with a map of The Houstons provided Gypsum with a map of the claimed properties when they attempted to the claimed properties when they attempted to sell them the timber. Gypsum must pay the sell them the timber. Gypsum must pay the Houstons and quit claim the titleHoustons and quit claim the title

The Houstons are in Fat City

ZIPPERS

AWARDS

OTHER BLOGS

Grand Prize AwardsGrand Prize Awards

Best presentation (prize)Best presentation (prize) Most times slept in class awardMost times slept in class award What is going on in this class and why am I What is going on in this class and why am I

taking it? Awardtaking it? Award Best jokes awardBest jokes award

Most Consecutive “Basicallys’” In Any One Presentation

Presentations given above 100 words per minute

Best cookies or treats award

Best hat award

Most creative dressed award

Most questions asked in class award

The “Goodie 2 Shoes award for doing everything right

Best haircut award

Least words said in one semester

Most late appearances in class

Pus Factor 10 AwardPus Factor 10 Award

Best Real Picture

Places I Would Least Like to Places I Would Least Like to Live AwardLive Award

This Really Is The EndThis Really Is The End