|
Builders Score Three Significant Court Victories
NAHB ended the year on a high note with the announcement last month of three significant court victories that will have direct benefits for home builders in the areas of land use, eminent domain and the Interstate Full Disclosure Land Sales Act.
The favorable decisions were:
- In Tony Ashburn & Son, Inc. v. Kent County Regional Planning Comm'n, a builder scored a convincing victory in the Supreme Court of Delaware against a municipality that had arbitrarily decided to deny his subdivision approval. Even though the builder's subdivision application was in compliance with both the applicable zoning ordinance and subdivision regulations, the county denied it, citing general growth control concerns. NAHB submitted an amicus brief on behalf of the builder, which was drafted in-house, arguing that the denial fostered an unpredictable and ad hoc development approval process. The court agreed with NAHB, quoting from the association’s brief, and held that the planning commission did not have "unfettered discretion" to deny a subdivision application that otherwise conformed to existing laws and regulations. For more information on this case, e-mail Chris Whitcomb at NAHB, or call him at 800-368-5242 x8329.
- In Transwestern Pipeline LLC v. 17.9 Acres of Property, a pipeline company, under the Natural Gas Act, attempted to condemn and take immediate possession of property — including land belonging to several home builders — for the construction of a new natural gas pipeline. The act, however, does not allow for immediate possession — or "quick take" — powers. NAHB challenged this position in an amicus brief, which argued that equitable considerations counseled against granting utility companies quick take power. The Ninth Circuit Court of Appeals sided with NAHB, holding that courts could not give the company power that it has not been granted under the federal statute. The case represents an important limitation of quick take condemnation authority, which has the potential to be abused by private parties in the expansion of new utilities. For more information on this case, e-mail Chris Whitcomb at NAHB, or call him at 800-368-5242 x8329.
- In Pugliese v. Pukka Development, Inc., the Eleventh Circuit Court of Appeals issued the first opinion in the country from a circuit court of appeals addressing the split of authority among the federal district and state courts on whether builders whose sales are partially exempt under the Interstate Full Disclosure Land Sales Act must comply with all disclosure provisions. The Eleventh Circuit reversed the district court and held that partially exempt entities do not need to comply with certain disclosure provisions. The contracts at issue involved lots in a subdivision containing fewer than 100 lots. An alternative holding would have required the remedy of rescission of potentially thousands of sales contracts. Notably, the Eleventh Circuit specifically referenced NAHB's brief in its opinion. For more information, e-mail David Jaffe at NAHB, or call him at 800-368-5242 x8317.
|
