Sunday, September 25, 2005

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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