Daily Development for
Monday, November 3, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

DIRT so often reports cases in which landowners get the shaft, I thought it would be fun to start on Monday with four recent cases involving specialized legal doctrines that enable landowners to adapt the law to address their special situations versus governmental regulation or eminent domain. None of the cases require a lot of comment, but any of them could be quite useful given the proper case. --Pat Randolph

EMINENT DOMAIN; DAMAGES; "ASSEMBLED ECONOMIC UNIT:" When unique building, which is necessary for business to operate, is condemned, and no other building within reasonable distance is adaptable to replace its function, Assembled Economic Unit Doctrine requires that the condemned building be considered an essential part of economic unit in industry, and all machinery, equipment and fixtures vital to economic unit will be considered part of real estate condemned.

Denes v. Pennsylvania Turnpike Commission, 689 A.2d 219 (Pa. 1997).

EMINENT DOMAIN; DAMAGES; "UNITY OF USE:" Concept of unity of use doctrine, which requires that damages for condemnation be assessed as if all of several noncontiguous tracts were one parcel when all such tracts are owned by one owner and used for unified purpose, is applicable only when all of the noncontiguous parcels are owned by one owner, used for a unified purpose by an identical user, and are so interconnected in the use to which they are applied that injury to one will permanently damage the others.

West Whiteland Associates v. Commonwealth of Pennsylvania Department of Transportation, 690 A.2d 1266 (Pa.Commw. 1997).

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE; ABANDONMENT: Owner and lessee of property not used as racetrack for 14 years were nonetheless entitled to use the property as a nonconforming use as racetrack, because, although the property had not been kept in repair for use as racetrack; the property had been assessed continually for real estate tax purposes as a racetrack, no attempt had been made to dismantle racetrack structures, and owner had negotiated with 23 persons for sale or lease of the property.

Latrobe Speedway v. Zoning Hearing Bd. of Unity Township, 686 A.2d 888 (Pa.Commw. 1996).

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE: A mining company that purchases property for its materials is entitled to the protection of legal nonconforming use for that property provided the property constitutes an integral part of the mining operations at the time the zoning restriction becomes effective.

Bainter v. Village of Algonquin, 675 N.E.2d 120 (Ill. App. 2 Dist. 1996).

Residential property owners whose homes were adjacent to a gravel mining operation sought to enjoin the mining operation, arguing that such operation was prohibited by a rezoning of the land which occurred after the mining company's acquisition of the land. The Appellate Court of Illinois affirmed the Circuit Court's judgment denying the request for sanctions against the mining company. The Appellate Court applied the rule that a property owner is entitled to the protection of a legal nonconforming use if the property is in actual use, as distinguished from an merely contemplated use, when the zoning restriction becomes effective.

At the time the rezoning became effective, a portion of the mining company's property was not in actual use, hence the plaintiff homeowners' arguments that it was not entitled to the protection of a legal nonconforming use. The Appellate Court ruled, however, that the requirement that property be in actual use is not absolute. One noteworthy exception to the rule is the situation where a mining company purchases a tract of land laden with mineral deposits as inventory for its mining business. The gravel mining company therefore fit within the mining company exception to the actual use rule and therefore was entitled to the protection of a legally nonconforming use for all of its property, including that which had not yet begun to be mined at the time of the rezoning.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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