Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Sometimes Ownership Defines Use ???

In this opinion in the case of Saddeh v. Stanton Rowing Foundation, the 1st DCA determined that ownership or control does control use, at least when the use is a park.

City leased property, operated by the Rowing Foundation, for that purpose, with the lease noting the use as a park. Parks are permitted in the zoning district. Neighbors objected, won before the Zoning Board and lost before the circuit court. The circuit court found that the property met the definition of a park.

So the City gets pressured and terminates its lease. Neighbors then sue to establish that the use is illegal and for nuisance damages.

Stanton claims res judicata and circuit court upholds on that basis.

1st DCA: NAH! Overturning the circuit court's determination that the facts of the previous case establish that the use is a park use, the 1st DCA (looking at cases regarding park dedications) determines that as a matter of law, the "park" ceased being a "park" when the City terminated the lease, even though the use didn't change. Why? Apparently it felt that the right of public access to the property was lost, so the park characteristic was lost. It then became more like a private club (not a permitted use in the district), so the determination that it was permitted was lost.

SO - what happens if the landowner simply records a 30 year easement dedicating the property to limited public use and access and puts in picnic tables and a swingset? Clearly, the rowing club had been determined at the very least to be an accessory use to the park in the first litigation . . .

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.