The 10 most interesting cases on discretionary land use controls from the last year
The new edition of my Discretionary Land Use Controls treatise (print / Westlaw) will be out shortly. Here are the 10 cases from the past year that I found most interesting in this year's research. In many instances, cases on this list were interesting not because they broke new ground, but because they took the time to explain established, but complicated, areas of land use law. The 10 cases are:
· a New York case evaluating the reasonable return prong of the state’s use variance statute (790 Holdings Corp. v. Bd. of Appeals of Town of Hempstead, 237 A.D.3d 924, 927, 232 N.Y.S.3d 209, 212–13 (2025));
· a New York case evaluating whether hardship should be considered self-imposed when the applicant for a variance acquired a property subject to restrictions and was aware of the restrictions at the time of purchase (80 Woodland Ave, LLC v. Vill. of Catskill, 240 A.D.3d 1102, 1104, 239 N.Y.S.3d 350, 354 (2025));
· a Connecticut case evaluating the legality of attaching conditions to use variances (Sargent v. Zoning Bd. of Appeals of Town of Fairfield, 236 Conn. App. 269, 280, 347 A.3d 930, 939 (2025));
· a Texas case on whether a property owner in an inverse condemnation case must submit an application for the proposed use and seek a variance if denied (Commons of Lake Houston, Ltd. v. City of Houston, 711 S.W.3d 666, 684–85 (Tex. 2025), reh'g denied (May 30, 2025), cert. denied sub nom. City of Houston, Texas v. Commons of Lake Houston, Ltd., 146 S. Ct. 299, 223 L. Ed. 2d 124 (2025));
· a Kansas case on the role of the comprehensive plan in states where it is an advisory document (Pierson v. Bd. of Pottawatomie Cnty. Commissioners, 66 Kan. App. 2d 20, 28, 576 P.3d 860, 865 (2025));
· a federal case applying Michigan law on whether a property owner has a property interest in a conditional use permit and the role of discretion to deny the permit where the application complies with certain minimum, mandatory requirements (Nat. Res. Mgmt., LLC v. Twp. of Parma, 766 F. Supp. 3d 748, 752 (E.D. Mich. 2025));
· a Maine case distinguishing use permits from variances (Day v. Town of Hiram, 2025 ME 8, 331 A.3d 365);
· a Kansas case evaluating state mandated procedures for a supermajority of votes on a planned unit development (Austin Properties, LLC v. City of Shawnee, 320 Kan. 226, 564 P.3d 1262 (2025));
· an Illinois case applying the federal Mathews v. Eldridge factors to determine whether a due process violation had occurred in a PUD (Clark v. City of Galena, 2025 IL App (4th) 241245, ¶ 28);
· a Sixth Circuit case applying Ohio law on whether local municipalities can bargain away their legislative power by promising to rezone land if some condition is met (Lifestyle Communities, Ltd. v. City of Worthington, Ohio, 165 F.4th 1027 (6th Cir. 2026)).
I recommend them all!