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LexisNexis® Mealey's™ Real Estate Legal News



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Pa. Panel: Unique Lot Does Not Result In Hardship In Zoning Variance Appeal
HARRISBURG, Pa. - Reversing a lower court, a Pennsylvania appellate panel on Sept. 29 held that a developer failed to prove that its property was unique enough to warrant certain dimensional variances (Michael Singer, et al. v. Philadelphia Zoning Board of Adjustment, et al., No. 2072 C.D. 2010, Pa. Cmwlth.; 2011 Pa. Commw. LEXIS 477). Full story on lexis.com



N.H. Supreme Court Says Case Law Changes Justify A New Look At Variance Request
CONCORD, N.H. - Finding that changes in case law are sufficient to warrant the reconsideration of a developer's variance application, New Hampshire's Supreme Court on Oct. 12 reversed and remanded a lower court's decision that a local board need not review the application (Brandt Development Company of New Hampshire, LLC, v. City of Somersworth, No. 2010-641, N.H. Sup.; 2011 N.H. LEXIS 140). Full story on lexis.com



Ohio Panel: Fireworks Company Failed To Prove It Had Vested Property Interest
MIDDLETOWN, Ohio - Finding that there was not sufficient evidence to show that a property owner had expended the effort and money that would have shown a vested right to build a fireworks retail store, an Ohio appellate panel on Oct. 3 affirmed a lower court's agreement with a municipality that the fireworks business was not allowed under the municipality's local ordinance (Abdalla Enterprises v. Liberty Township Board of Trustees, et al., No. CA2011-03-052, Ohio App., 12th Dist.; 2011 Ohio App. LEXIS 4214). Full story on lexis.com



Pa. Panel: Pre-Existing Nonconforming Use Was Abandoned By Equipment Removal
HARRISBURG, Pa. - Finding that property owners had abandoned their property's pre-existing nonconforming use as a gas station when they removed the station's gas pumps, a Pennsylvania appellate panel on Oct. 18 affirmed a lower court decision in an unpublished opinion (Edward Kraynak, et al. v. Zoning Hearing Board of Forty Fort, No. 171 CD 2011, Pa. Cmwlth.; 2011 Pa. Commw. Unpub. LEXIS 854). Full story on lexis.com



Michigan Panel: Junkyard, Nuisance Ordinances Are Regulatory, Not Zoning Laws
LANSING, Mich. - Finding that a municipality's nuisance and junkyard ordinances are regulatory ordinances that apply to a junkyard operator's business regardless of the operation's prior nonconforming use, a Michigan appellate panel remanded a lower court decision in an unpublished opinion on Oct. 25 (Soo Township v. Lorenzo Pezzolesi, No. 299359, Mich. App.; 2011 Mich. App. LEXIS 1903). Full story on lexis.com



Georgia Panel Says Landowner Could Not Show That Others Traded Easements
ATLANTA - Affirming a lower court decision, a Georgia appellate panel on Sept. 22 found that a lot owner failed to present evidence sufficient to create a triable issue of fact as to whether a homeowners' association had agreed to exchange a previously designated common-area easement for another common-area easement (Marion Davis v. Robert Foreman, et al., No. A11A0857, Ga. App., 1st Div.; 2011 Ga. App. LEXIS 844). Full story on lexis.com



Ky. Panel: Appeal Fails Because Appellant Did Not Consider Alternative Ruling
FRANKFORT, Ky. - A Kentucky appeals panel affirmed a lower court in an unpublished opinion on Sept. 23, holding that a group of landowners' appeal failed because the group did not challenge all the reasons the lower court granted title to certain land to another landowner (Joseph L. Donahue, et al. v. Koetter Woodworking, Inc., No. 2010-CA-002024-MR, Ky. App.; 2011 Ky. App. Unpub. LEXIS 704). Full story on lexis.com



California Panel: Fire Code Report Was Not Final Administrative Decision
LOS ANGELES - A California appellate panel reversed a lower court in an unpublished opinion on Sept. 23, saying a municipality failed to show that its fire code violation report regarding marking a fire lane was a final administrative decision (James P. Foley, et al. v. County of Los Angeles, No. B223321, Calif. App., 2nd Dist, 1st Div.; 2011 Cal. App. Unpub. LEXIS 7207). Full story on lexis.com



Georgia Panel Says Road Easement Ambiguities Must Be Resolved By A Trial
ATLANTA - Reversing a summary judgment regarding an alleged easement, a Georgia appellate panel found Sept. 27 that certain agreements, deeds and plats are ambiguous and, therefore, the question of the easement must be resolved by a trial (Daryle Higginbotham, et al. v. Gary Knight, No. A11A1036, Ga. App., 2nd Div.; 2011 Ga. App. LEXIS 847). Full story on lexis.com



New Hampshire High Court: Prescriptive Easement Was Not Extinguished By Tax Sale
CONCORD, N.H. - Finding that a prescriptive easement was not extinguished by the tax sale of a property, the New Hampshire Supreme Court on Oct. 12 reversed and remanded a lower court decision (Alfred R. Marshall, Jr., et al. v. James J. Burke, Jr., et al., No. 2010-812, N.H. Sup.; 2011 N.H. LEXIS 141). Full story on lexis.com



Arizona Panel Says Use Of New Easement Does Not Mean Abandonment Of Older One
PHOENIX - Holding that property owners had not abandoned an old easement because of their use of a new easement, an Arizona appeals court on Oct. 20 affirmed in part a lower court decision granting title to the property owners for both the old and new easements (David M. Scalia, et al. v. Robin Green, et al., No. 1 CA-CV 10-0488, Ariz. App., Div. 1, Dept. E; 2011 Ariz. App. LEXIS 176). Full story on lexis.com



Arizona Panel Finds That Obstacles' Removal From Easement Mooted Any Claims
PHOENIX - Finding that a couple's removal of obstacles from an easement rendered a court action over the easement moot, an Arizona appellate panel affirmed a lower court in an unpublished opinion on Oct. 20 (Excel Realty Services, Inc., et al. v. Ronald John Sutter, et al., No. 1 CA-CV 10-0599, Ariz. App., Div. 1, Dept. C; 2011 Ariz. App. Unpub. LEXIS 1297). Full story on lexis.com



Kansas Panel: County Did Not Consider Specifics Of Development In Annexation Case
TOPEKA, Kan. - Finding that a county board had not considered how an undefined development of a property would affect the surrounding area before approving the property's annexation to a city, a Kansas appellate panel on Sept. 30 reversed a lower court's affirmation of the annexation (James Baggett, et al. v. The Board of County Commissioners of Douglas County, Kansas, et al., No. 104,441, Kan. App.; 2011 Kan. App. LEXIS 145). Full story on lexis.com



Missouri Panel Says Local Code Is Clear On Need For Billboard Special Use Permit
KANSAS CITY, Mo. - A Missouri appellate panel reversed a lower court decision on Oct. 11 and found that a municipal's billboard code was clear and unambiguous on its requirement that a special use permit must be obtained for outdoor advertising signs (State of Missouri Ex Rel. Outcom, Inc. v. City of Peculiar, et al., No. WD73309, Mo. App., Western Dist.; 2011 Mo. App. LEXIS 1326). Full story on lexis.com



New York Federal Judge: Sign Ordinance Does Not Have Valid Governmental Purpose
SYRACUSE, NY - Refusing to dismiss a billboard company's free speech claim against a town, a federal judge in New York on Sept. 27 held that because the town's sign ordinance did not promote a legitimate governmental purpose, the sign company's free speech rights may have been violated (In the Matter of a Proceeding Pursuant to Article 78 of the Civil Practice Law Rules, Anthony DePerno, Individually and on Behalf of Victory Sign, Inc., v. The Town of Verona, et al., No. 10-cv-0450, N.D. N.Y.; 2011 U.S. Dist. LEXIS 109405). Full story on lexis.com



Pa. Federal Judge Ends Zoning Ordinance Challenge In Deference To State Action
SCRANTON, Pa. - A federal judge in Pennsylvania dismissed a lawsuit on Sept. 23 regarding an adult entertainment business's dispute with a county and a township over a local zoning ordinance because a pending state case gives the business a sufficient forum to air its challenges to the ordinance's alleged unconstitutionality (Dutchmen MX Park, LLC v. Schuylkill County, Pennsylvania, et al., No. 11-cv-00871, M.D. Pa.; 2011 U.S. Dist. LEXIS 108947). Full story on lexis.com



11th Circuit: Adult-Oriented Businesses Lack Standing To Challenge Ordinance
ATLANTA - Finding that a group of adult-oriented businesses have not challenged the provision of a municipality's adult entertainment business ordinance that they are in violation of, an 11th Circuit U.S. Court of Appeals panel issued an unpublished opinion on Oct. 18 remanding an appeal with instructions to dismiss, holding that the adult-oriented businesses lack standing to challenge the ordinance (Jack Galardi, et al. v. City of Forest Park, Georgia, et al., No. 11-10704, 11th Cir.; 2011 U.S. App. LEXIS 21226). Full story on lexis.com



California Panel Says Couple Must Remove Solar Power Array From Property
LOS ANGELES - In a couple's appeal of an order that they must remove a portion of the solar power system they installed on their property, a California appellate panel affirmed a lower court in an unpublished opinion on Oct. 3, finding that the couple's appeal involved a legal theory not presented in the trial court (Tesoro Del Valle Master Homeowners Association v. Martin Griffin, et al., No. B222531, Calif. App., 2nd Dist, 2nd Div.; 2011 Cal. App. Unpub. LEXIS 7545). Full story on lexis.com



New Jersey Panel: Previous Unpermitted Use Of Land Does Not Bar Cellular Tower
TRENTON, N.J. - A New Jersey appellate panel on Oct. 17 in an unpublished opinion affirmed a lower court opinion granting a cellular telephone provider a use variance to construct a telecommunications tower and held that the previous unpermitted use of the property was irrelevant (T-Mobile Northeast LLC v. Township of Freehold Zoning Board of Adjustment, No. A-2863-10T3, N.J. Super., App. Div.; 2011 N.J. Super. Unpub. LEXIS 2597). Full story on lexis.com



3rd Circuit Vacates Ruling In Environmental Suit Where Judge Applied Abstention
PHILADELPHIA - A panel of the Third Circuit U.S. Court of Appeals on Oct. 3 reinstated a lawsuit brought under the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) after finding that a federal judge in New Jersey abused his discretion in dismissing the action based on abstention grounds (Raritan Baykeeper, d/b/a NY/NJ Baykeeper, et al. v. NL Industries Inc., et al., No. 10-2591, 3rd Cir.; 2011 U.S. App. LEXIS 20021). Full story on lexis.com



New York Appeals Panel Says Punitive Award In Property Dispute Was Excessive
ROCHESTER, NY - Although punitive damages were appropriate in a dispute among neighboring property owners, the $200,000 awarded by a jury was excessive, a New York appeals panel held Oct. 7, vacating the award and ordering a new trial unless the plaintiffs accept a reduced award of $15,000 (Ricky D. West, et al., v. Mark Hogan and Elizabeth Hogan), No. CA 10-01586, N.Y. Sup., App. Div., 4th Dept.). Full story on lexis.com



Judge Finds Sellers Did Not Deceive Purchaser About Water, Mold Damage
BRIDGEPORT, Conn. - A Connecticut judge on Sept. 28 dismissed various claims for fraudulent misrepresentation and breach of contract asserted by the purchaser of a home that allegedly contained water damage and mold, finding that she failed to show that the sellers of the home deceived her about the condition of the property (Lisa Bologna Forman v. J.P. Roger Gaulin, et al., No. CV085013603S, Conn. Super., Fairfield Dist.; 2011 Conn. Super. LEXIS 2540). Full story on lexis.com



Federal Judge Dismisses Most Of Manufactured Home Owners' Mold-Related Claims
BLUEFIELD, W.Va. - A West Virginia federal judge on Sept. 28 dismissed the majority of claims the owners of a manufactured home that allegedly contained mold asserted against the maker of the house and others, finding that the claims were time-barred by a four-year statute of limitations (Wanda McCoy, et al. v. Southern Energy Homes Inc., No. 1:09-1271, S.D. W.Va.; 2011 U.S. Dist. LEXIS 111166). Full story on lexis.com



New York Court Reverses Ruling Dismissing Warranty Claim Against Seller
ROCHESTER, NY - A New York appeals court on Sept. 30 reversed a ruling that dismissed a breach of warranty claim in relation to mold growth that was alleged by the purchasers of a home, finding that a waiver for mold in the builder's warranty was ambiguous and that the seller failed to submit any evidence to support a judgment in its favor (Gary W. Gilpin, et al. v. Osewego Builders Inc., et al., No. 11-00042, N.Y. Sup., App. Div., 4th Dist.; 2011 N.Y. App. Div. LEXIS 6720). Full story on lexis.com



Title Insurer Properly Denied Coverage In Gate Dispute, Appeals Court Rules
SAN JOSE, Calif. - A property owner's title did not grant him the right to maintain a gate on an easement, a California appeals panel concluded Oct. 12, leading it to affirm a trial court's finding that the owner's title insurance provider did not act in bad faith by denying a claim related to a dispute over the gate (Robel Fekade v. First American Title Insurance Co., No. H034391, Calif. App., 6th Dist.; 2011 Cal. App. Unpub. LEXIS 7770). Full story on lexis.com



Agency, Lenders Say Changes To Refinancing Program Will Affect More Borrowers
WASHINGTON, D.C. - The Federal Housing Finance Agency (FHFA), Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corp. (Freddie Mac) on Oct. 24 announced changes to the Home Affordable Refinance Program (HARP) that are intended to help more eligible borrowers refinance their home mortgage loans. Full story on lexis.com



N.J. Federal Judge: Challenge To Sign Ordinance Was Not Sufficiently Specific
CAMDEN, N.J. - Because an outdoor advertising company did not make challenges to specific provisions of a local sign ordinance as those provisions were applied to the local government's denial of certain billboard permit applications, a federal judge in New Jersey found in an unpublished opinion on Sept. 13 that the sign company did not have standing to challenge the constitutionality of the ordinance (Interstate Outdoor Advertising v. Zoning Board of the Township of Cherry Hill and the Township of Cherry Hill, No. 08-cv-03753, D. N.J.; 2011 U.S. Dist. LEXIS 103462; See December 2009). Full story on lexis.com



Washington Federal Judge: New Technology Does Not Violate Power Pole Easement
SPOKANE, Wash. - Granting partial summary judgment to a cable television company, a federal judge in Washington on Sept. 8 said that even though fiber optic cables were not considered when a power pole easement was granted, placing fiber optic cables on the poles does not violate the easement (Cary E. Berger, et al. v. Comcast of Pennsylvania/Washington/West Virginia, LP, No. 08-cv-0320, E.D. Wash.; 2011 U.S. Dist. LEXIS 100974). Full story on lexis.com



New Hampshire Supreme Court Says Shore Access Deeds Were Patently Ambiguous
CONCORD, N.H. - Holding that a lower court judge had not erred in finding that a deed's language regarding a shorefront access right of way was ambiguous, the New Hampshire Supreme Court on Sept. 15 affirmed the judge's decision to use of extrinsic evidence that showed that neighboring property owners have a right of way to access the shore over the property (David Austin, et al. v. Lester C. Silver, et al., No. 2010-534, N.H. Sup.; 2011 N.H. LEXIS 117). Full story on lexis.com



Virginia High Court Says Easement Agreement Does Not Bar Landowner's Use Of Area
RICHMOND, Va. - Affirming a lower court, Virginia's high court held Sept. 16 that the conveyance of an exclusive easement without specifically limiting the use of the easement does not result in the transfer of a fee interest in the easement property (McCarthy Holdings LLC v. Vincent W. Burgher, III, No. 101031, Va. Sup.; 2011 Va. LEXIS 188). Full story on lexis.com



New Hampshire High Court: New Deed Did Not Create Drainage Easements
CONCORD, N.H. - New Hampshire's high court on Sept. 15 reversed a lower court's finding and held that a succession of deeds did not create certain drainage easements for a property that once belonged to a single entity (Appletree Mall Associates, LLC v. Ravenna Investment Associates, et al., No. 2010-170, N.H. Sup.; 2011 N.H. LEXIS 114). Full story on lexis.com



Missouri Panel: Developer Knew Of Neighbor's Driveway Easement Before Purchase
SPRINGFIELD, Mo. - Affirming a lower court, a Missouri appellate panel on Sept. 20 said a developer knew of a neighbor's driveway easement because the developer saw the driveway during an inspection of the property before purchase (Frankie R. Chisholm, et al. v. MBM, LLC, No. SD30947, Mo. App., Southern Dist.; 2011 Mo. App. LEXIS 1255). Full story on lexis.com



Missouri High Court: Forcing Removal Of Pipeline From Easement Is Illegal Taking
JEFFERSON CITY, Mo. - Finding that forcing a gas company to move a pipeline from an easement at its own expense would be an illegal taking without just compensation, the Missouri Supreme Court on Aug. 30 reversed and remanded a lower court's order to the contrary (St. Charles County, Missouri v. Laclede Gas Company, No. SC91539, Mo. Sup.; 2011 Mo. LEXIS 210). Full story on lexis.com



Pennsylvania Panel: Letter Regarding Zoning Facts Is Not A Notice Of Violation
HARRISBURG, Pa. - Affirming a lower court's ruling in an unpublished opinion on Sept. 19, a Pennsylvania appellate panel held that a letter from a zoning officer was merely a recitation of facts and not a notice of violation that required a challenging action from a property owner (In Re: The Appeal of SIIKA, LLC From a Decision of the Jackson Township Zoning Hearing Board, No. 2394 C.D. 2010 and No. 2396 C.D. 2010; Pa. Cmwlth.; 2011 Pa. Commw. Unpub. LEXIS 790). Full story on lexis.com



Massachusetts Panel Says Neighbors Have Standing To Challenge Building Permit
BOSTON - Because a neighbor accesses his land via a right of way of property owners' land, the property owners have standing to challenge the neighbor's building permit, a Massachusetts appeals panel affirmed a lower court's finding on Sept. 2 (Justin E. Gale, et al. v. Zoning Board of Appeals of Gloucester, et al., No. 10-P-1536, Mass. App.; 2011 Mass. App. LEXIS 1154). Full story on lexis.com



Pennsylvania Panel: Restaurant Did Not Meet Burden For Special Exceptions
HARRISBURG, Pa. - Finding in an unpublished opinion that a restaurant had not met its burden of showing why it was entitled to a pair of special exceptions to allow off-site parking, a Pennsylvania Commonwealth Court panel on Sept. 12 vacated and remanded the lower court's decision affirming the special exceptions (John Musgrave IV, et al. v. The City of Pittsburgh Department of Planning, et al., No. 118 C.D. 2011, Pa. Cmwlth.; 2011 Pa. Commw. Unpub. LEXIS 747). Full story on lexis.com



N.J. Panel: Town Did Not Violate Notification Requirements In Zoning Change
TRENTON, N.J. - Affirming a lower court's upholding of a zoning change to allow hotels and restaurants in an office district, a New Jersey appellate panel held in an unpublished opinion on Sept. 15 that the addition of hotels and restaurants did not make a radical enough zoning change to trigger certain public hearing notification requirements (East Windsor Group, LLC, et al. v. Township Council of the Township of Toms River, No. A-6230-09T3, N.J. Super., App. Div.; 2011 N.J. Super. Unpub. LEXIS 2410). Full story on lexis.com



Minnesota Panel Says Vacated Roadbed Belongs To Abutting Property Owner
ST. PAUL, Minn. - In an unpublished opinion affirming a lower court decision vacating a former roadbed and granting ownership to an abutting landowner, a Minnesota panel on Sept. 12 found that vacation was proper because the land was no longer usable as a road (James M. Tracy, et al. v. Jeanette Macklin, et al., No. A11-139, Minn. App.; 2011 Minn. App. Unpub. LEXIS 877). Full story on lexis.com



Mass. Panel: Neighboring Property Owners Have Standing To Challenge Development
BOSTON - Finding that a group of business owners have standing to challenge a development project because a trial judge improperly discounted the business owners' expert witness evidence, a Massachusetts appellate panel remanded the challenge on Sept. 15 in an unpublished opinion (Charles Brooks, et al. v. Chelmsford Hillside Gardens, LLC, et al., No. 10-P-1817, Mass. App.; 2011 Mass. App. Unpub. LEXIS 1012). Full story on lexis.com



Calif. Panel: County's Repairs To Canal Do Not Make Canal County's Property
SACRAMENTO, Calif. - In an unpublished opinion on Sept. 16, a California appeals panel affirmed a lower court and held that a local government did not become responsible for maintaining a canal just because it participated in efforts to repair the canal in the past (Friends of the Point Pleasant Area v. County of Sacramento, et al., No. C059377, Calif. App., 3rd Dist.; 2011 Cal. App. Unpub. LEXIS 7039). Full story on lexis.com



Judge: Geologist Can Testify About Agency's Settlement Discussions With Company
COLUMBIA, Tenn. - Plaintiffs in a Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) lawsuit against Waste Management Inc. of Tennessee (WMT) and Cedar Ridge Landfill Inc. can question a geologist from Tennessee's Department of Environment and Conservation (TDEC) on the basis of a memorandum of understanding reached between the agency and WMT because the topic is not protected by the deliberative process privilege, a federal judge in Tennessee ruled Aug. 9 (Darlene Hill, et al. v. Waste Management Inc. of Tennessee, et al., No. 10-cv-0033, M.D. Tenn.; 2011 U.S. Dist. LEXIS 88368). Full story on lexis.com



Appeals Court Affirms Agency's Issuance Of Permits To Animal Feeding Operations
ANNAPOLIS, Md. - A Maryland Court of Special Appeals panel on Sept. 6 affirmed a ruling in favor of the Maryland Department of the Environment (MDE) regarding the agency's requirement for some animal feeding operations (AFOs) to obtain only a general discharge permit (GP) that allows them to store dry manure in a field for up to 90 days because the permit's requirements were in accord with the Clean Water Act (CWA) (Assateague Coastkeeper, et al. v. Maryland Department of the Environment, No. 471, September Term 2010, Md. Spec. App.; 2011 Md. App. LEXIS 120). Full story on lexis.com



Massachusetts Panel: Builder Has Shown It Will Meet Environmental Cleanup Rules
BOSTON - A Massachusetts appellate panel on Sept. 16 affirmed a lower court finding that a developer has shown it will comply with certain state environmental actions required to clean up a former illegal hazardous waste dump before building a condominium complex (Zoning Board of Appeals of Holliston v. Housing Appeals Committee, et al., No. 10-P-1964, Mass. App.; 2011 Mass. App. LEXIS 1191). Full story on lexis.com



California Panel: Neighbors' Entry To Property Was Necessary And Not Trespassing
LOS ANGELES - Affirming a lower court finding in an unpublished opinion, a California appellate panel on Sept. 14 held that individuals did not trespass on their neighbors' property because their entry was necessary to protect the property from damage (Dan Norris, et al. v. Martha Witter, et al., No. B224036, Calif. App., 2nd Dist., 1st Div.; 2011 Cal. App. Unpub. LEXIS 6949). Full story on lexis.com



Material Misrepresentation Bars Surveyor From Claiming Professional Exemption
SAN ANTONIO - A surveyor's statement that claimants' property was not located in the 100-year flood plain was an express misrepresentation of a material fact that did not constitute an opinion, a Texas appeals panel ruled Sept. 14, reversing and remanding a lower court's ruling granting the surveyor's special exception and dismissing the claimants' Texas Deceptive Trade Practices Act (DTPA) cause of action (James Zimmerhanzel and Linda Zimmerhanzel v. J.M. Butz Jr. d/b/a Butz Land Surveying, No. 04-11-00081-CV, Texas App., 4th Dist.; 2011 Tex. App. LEXIS 7481). Full story on lexis.com



Texas Judge Remands Homeowner's Warranty Claims For New Trial
AUSTIN, Texas - In a majority ruling, a Texas appeals court on July 27 reversed a trial court's ruling denying a homeowner's request to submit a question to a jury regarding the implied warranty of habitability, finding that the evidence on record showed that the home contained mold and other unsafe conditions and was unfit for habitation (Old HH Ltd. v. Mary Henderson, et al., No. 03-10-00129, Texas App., 3rd Dist.; 2011 Texas App. LEXIS 5962). Full story on lexis.com



Montana Court Refuses Real Estate Company's Appeal Of Ruling Denying Fees
HELENA, Mont. - A Montana court on Sept. 20 denied a real estate company's appeal of a trial court's decision to deny it attorney fees incurred in a case filed by homeowners who alleged that their property contained water damage and mold (Frederick Harmon, et al. v. Fiscus Realty Inc., No. 10-0162, Mont. Sup.; 2011 Mont. LEXIS 340). Full story on lexis.com



8th Circuit Panel: Requiring A Fence To Hide Cars Is Not A Regulatory Taking
ST. LOUIS - There is no regulatory taking without invasion of property regarding a municipality's ordinance requiring stored race cars to be fenced in, an Eighth Circuit U.S. Court of Appeals panel held Aug. 16, affirming a lower court decision (Iowa Assurance Corporation, et al. v. City of Indianola, Iowa, et al., No. 10-3815, 8th Cir.; 2011 U.S. App. LEXIS 16873). Full story on lexis.com



Oklahoma Federal Judge: Landowner Encroached On Government's Flood Easement
MUSKOGEE, Okla. - Finding that a property owner had encroached on an easement that allows the federal government to flood the shore of a reservoir, a federal judge in Oklahoma on Aug. 4 ordered the property owner to remove fill material and improvements in the easement area (United States of America v. Tony Wayne Abernathy, No. 10-cv-00311, E.D. Okla.; 2011 U.S. Dist. LEXIS 86320). Full story on lexis.com



Minnesota Panel: Road Easement Did Not Include Storm Drain System Easement
ST. PAUL, Minn. - Finding that an agreement to allow a city to run a road over a property did not include permission to operate a storm water drain over the property, a Minnesota appellate panel remanded the case in an unpublished opinion on Aug. 15 (Dr. James Hoffman, et al. v. City of White Bear Lake, No. A11-34, Minn. App.; 2011 Minn. App. Unpub. LEXIS 768). Full story on lexis.com



Washington State Panel: Family's Use Of Abandoned Road Does Not Equal Public Use
TACOMA, Wash. - Affirming a lower court, a Washington appellate panel held in an unpublished opinion on Aug. 16 that a family's use of an abandoned road was not sufficient to show that the road was dedicated for public use (Chad A. Niemela v. State Forest Board of the State of Washington, No. 40812-1-II, Wash. App., 2nd Div.; 2011 Wash. App. LEXIS 1964). Full story on lexis.com



Florida Panel Says Without Reference On Deed, Recorded Plat Is Not Valid
MIAMI - Noting that a recorded plat had never been referred to in any subsequent deeds to the property, a Florida appellate panel on Aug. 3 found that the plat was invalid, and the panel reversed a lower tribunal's finding that the plat was valid (Miami-Dade County v. Thomas Torbert, et al., No. 3D10-2339, Fla. App., 3rd Dist.; 2011 Fla. App. LEXIS 12099). Full story on lexis.com



Lack Of Setback Is Unfair To Neighbor, Limits Usable Land, Minnesota Panel Says
ST. PAUL, Minn. - Finding that a property owner's encroachment on a neighboring property limited the usable amount of the neighbor's land, a Minnesota appellate panel in an Aug. 15 unpublished opinion reversed a lower court's vacation of a county's denial of variance to local setback codes (Mary C. Nesvig v. Crow Wing County, State of Minnesota, No. A11-127, Minn. App.; 2011 Minn. App. Unpub. LEXIS 785). Full story on lexis.com



New Jersey Panel: Water District's Use Variance Is Without Inherent Benefit
TRENTON, N.J. - A New Jersey panel vacated a lower court's ruling in an Aug. 17 unpublished opinion and found that a local water utility's application to expand its facility under a use variance was not inherently beneficial to the community (United Water New Jersey v. Zoning Board of Adjustment of the Borough of Montvale, No. A-2526-09T3, N.J. Super.; App. Div.; 2011 N.J. Super. Unpub. LEXIS 2233). Full story on lexis.com



Details Of Gas Station Zoning Permit Denial Were Insufficient, Ind. Panel Says
INDIANAPOLIS - Concluding that a municipality's reasons for denying a retailer's application to build a gas station were not specific enough to tell the retailer how it might attempt to comply with the local zoning ordinances, an Indiana appellate panel reversed a lower court denial on Aug. 18 and ordered that the trial court remand the case to the local board for further proceedings (The Kroger Co., et al. v. Plan Commission of the Town of Plainfield, Indiana, No. 32A04-1012-MI-751, Ind. App.; 2011 Ind. App. LEXIS 1570). Full story on lexis.com



N.J. Panel: Health Club Did Not Meet Use Variance Zoning Suitability Standard
TRENTON, N.J. - Finding that a health club's reasons it is a particularly suited use of a light industrial zoned property do not meet the legislatively mandated criteria, a New Jersey panel in an unpublished opinion on Aug. 17 affirmed a lower court's reversal of a municipality's granting of a use variance to the health club (TSI Marlboro, Inc. v. Township of Marlboro Zoning Board of Adjustment, No. A-5382-08T3, N.J. Super., App. Div.; 2011 N.J. Super. Unpub. LEXIS 2224). Full story on lexis.com



N.J. Panel Finds Cell Tower Dispute Unripe, Dismisses Homeowners' Challenge
TRENTON, N.J. - Because no final plan approvals have been made regarding a wireless telecommunications facility, a New Jersey panel affirmed a lower court and held Aug. 9 that the challenge to placing the cell tower was unripe and dismissed the action for failure to state a claim (Carter Road Homeowner's Association, Inc., et al. v. Lawrence Township Planning Board, et al., No. A-4156-09T3, N.J. Super., App. Div.; 2011 N.J. Super. Unpub. LEXIS 2150). Full story on lexis.com



Pennsylvania Federal Judge Finds Cell Phone Provider Failed To Prove Gap In Service
PHILADELPHIA - Holding that the standard used by a cell phone provider to show a coverage gap was subjective, a federal judge in Pennsylvania on Aug. 9 granted summary judgment to a local government and affirmed that the denial of a zoning variance to build the cell tower was not in violation of the federal Telecommunications Act (Liberty Towers, LLC v. Zoning Hearing Board of the Township of Lower Makefield, Bucks County, Pennsylvania, No. 10-cv-1666, E.D. Pa.; 2011 U.S. Dist. LEXIS 88740). Full story on lexis.com



Mass. Panel: Historic District Code Does Not Allow Challenges To Designations
BOSTON - Finding that property owners could not challenge a local historic commission's inclusion of property in a historic district, a Massachusetts appellate panel issued an unpublished opinion on Aug. 18 affirming a lower court's dismissal of the case for failure to state a claim (Aditya Tibrewal, et al. v. City of Worchester, et al., No. 10-P-1885, Mass. App.; 2011 Mass. App. Unpub. LEXIS 979). Full story on lexis.com



Mass. Panel: Neighbor's Silence During Project Showed Agreement To Land Swap
BOSTON - Finding that a neighbor's silence during a construction project was sufficient to show that the neighbor did not object to the project's encroachment onto his land, a Massachusetts panel affirmed a lower court opinion on Aug. 22 and held that the trial court judge had properly defined a land swap between the neighbors (Robert J. Hurtubise v. Scott B. McPherson, No. 10-P-1252, Mass. App.; 2011 Mass. App. LEXIS 1129). Full story on lexis.com



Tennessee Panel: Without Disputing Billboard Denial, Business Lacks Standing
JACKSON, Tenn. - Noting that an outdoor advertising business owner had not asserted any injury regarding a local government's denial of billboard building permits, a Tennessee appellate panel affirmed a lower court's summary judgment and held that the business owner lacks standing to bring his action (William H. Thomas, Jr., d/b/a Thomas Investments, A Tennessee Sole Proprietorship v. Shelby County, Tennessee, et al., No. W2010-01472-COA-R3-CV, Tenn. App.; 2011 Tenn. App. LEXIS 439). Full story on lexis.com



Michigan Panel Says Local Sign Ordinance Covering Rural Area Is Content Neutral
DETROIT - Affirming a lower court's decision, a Michigan appeals panel found in an unpublished opinion on Aug. 9 that a local sign ordinance is content neutral and that its limitations on signs in rural areas acts to achieve stated government interests (Sackllah Investments, L.L.C., v. Charter Township of Northville, No. 293709, Mich. App.; 2011 Mich. App. LEXIS 1452). Full story on lexis.com



California Panel: Billboard Legality Could Affect Lost-Profit Damages Award
SAN JOSE, Calif. - Finding that new evidence regarding the possible removal of a billboard could affect the amount of a lost-profits award, a California appellate panel on Aug. 23 remanded a billboard easement dispute for a new trial (James C. Hill, et al. v. San Jose Family Housing Partners, LLC, No. H034931, Calif. App., 6th Dist.; 2011 Cal. App. LEXIS 1101). Full story on lexis.com



Texas Panel: Studies Sufficient To Show Validity Of Adult-Business Law
EL PASO, Texas - Finding that studies by other local governments were sufficient to show possible secondary effects caused by sexually oriented businesses, a Texas appellate panel on Aug. 10 affirmed a lower court's ruling that a sexually oriented business ordinance was constitutional (E.B.S. Enterprises, Inc. d/b/a/ Gateway News and Video, et al. v. The City of El Paso, No. 08-10-00088-CV, Texas App., 8th Dist.; 2011 Tex. App. LEXIS 6232). Full story on lexis.com



Ga. Federal Judge: Affected County May Intervene In Clean Water Act Permit Case
SAVANNAH, Ga. - Finding that the interests of a municipality that is downstream from a proposed artificial lake that has received a federal Clean Water Act permit will best be served by the municipality, a federal magistrate judge in Georgia on Aug. 1 granted the municipality's motion to intervene in a pair of citizen groups' challenge to the permit (Georgia River Network, et al. v. U.S. Army Corps of Engineers, et al., No. 10-cv-00267, S.D. Ga.; 2011 U.S. Dist. LEXIS 84327). Full story on lexis.com



8th Circuit Affirms Entry Of Preliminary Injunction In Clean Water Act Case
ST. LOUIS - A federal judge did not abuse his discretion in granting in part a motion for a preliminary injunction filed by environmental groups seeking to halt activities allowed under a permit issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act (CWA) to Southwestern Electric Power Co. (SWEPCO) as part of the company's construction of a coal-fired power plant in Arkansas, an Eighth Circuit U.S. Court of Appeals panel held July 14 (Sierra Club, et al. v. United States Army Corps of Engineers, et al., No. 10-3452; Hempstead County Hunting Club Inc. v. United States Army Corps of Engineers, et al., No. 10-3456, 8th Cir.; 2011 U.S. App. LEXIS 14385). Full story on lexis.com



Missouri Sewer District Agrees To Spend $4.7 Billion To Eliminate Sewage Overflows
KANSAS CITY, Mo. - The Metropolitan St. Louis Sewer District (MSD) on Aug. 4 agreed to spend $4.7 billion over the course of the next 23 years to improve its sewer systems and waste treatment plants in an effort to settle claims brought by the U.S. government, the State of Missouri and the Missouri Coalition for Environment Foundation over violations of the Clean Water Act (CWA), according to a proposed consent decree filed in Missouri federal court (United States of America, et al. v. The Metropolitan St. Louis Sewer District, No. 07-cv-1120, E.D. Mo.). Full story on lexis.com



Group Sues EPA Over Failure To Enforce State's Storm Water Program
TRENTON, N.J. - The Delaware Riverkeeper Network (DRN) on July 27 sued the U.S. Environmental Protection Agency in New Jersey federal court, contending that the agency's failure to take action against the state for not complying with its municipal storm water program violated the Clean Water Act (CWA) (Delaware Riverkeeper Network, et al. v. United States Environmental Protection Agency, No. 11-cv-04302, D. N.J.). Full story on lexis.com



Iowa High Court: Punitive Damages Do Not Survive Death Of Tortfeasor
DES MOINES, Iowa - Punitive damages may not be recovered from the estate of a deceased wrongdoer, the Iowa Supreme Court held Aug. 5, affirming a trial court's decision not to award such damages against the estate of a man who chopped down dozens of his neighbor's trees (In the matter of the estate of Johnny Vajgrt, Deceased; Bill Ernst, Inc., Intervenor-Appellant, No. 10-1088, Iowa Sup.; 2011 Iowa Sup. LEXIS 56). Full story on lexis.com



Court Finds It Lacks Jurisdiction To Hear Claims Against Mortgage Company
MONTGOMERY, Ala. - An Alabama appeals court on July 15 dismissed an appeal of a ruling that granted partial summary judgment to a mortgage company in an action filed by homeowners who claimed that defects in their homes caused a mold infestation, finding that the appeals court lacked jurisdiction over the case (Donald Moore, et al. v. HSBC Mortgage Services, No. 2100418, Ala. Civ. App.; 2011 Ala. Civ. App. LEXIS 177). Full story on lexis.com