Can I Stop the City from Allowing A Commerical Use to Block My Easement?
Full Question:
Answer:
There are many issues involved, such as whether you have standing, the finality of the decision your inlaws received, whether you had or still have an opportunity to intervene at the proceedings on the matter, applicable zoning regulations, etc. I suggest you consult with a local attorney who can review all the facts and documents involved.
An intervenor is a a party who does not have a substantial and direct interest but has clearly ascertainable interests and perspectives essential to a judicial determination and whose standing has been granted by the court for all or a portion of the proceedings.
Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the law or action challenged. Otherwise, the court will rule that you "lack standing" to bring the suit and dismiss your case.
There are three constitutional requirements to prove standing:
Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.
Causation: The injury must be reasonably connected to the defendant’s conduct.
Redressability: A favorable court decision must be likely to redress the injury.
There are other requirements imposed by judge made law:
-A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court.
-A plaintiff cannot sue as a taxpayer who shares a grievance in common with all other taxpayers.
An easement is a property interest, which entitles the owner of the easement to the privilege of a specific and limited use of the land of another. The easement is a real property interest, but separate from the legal title of the owner of the underlying land. The land which receives the benefit of the easement is called the "dominant" property or estate. Easements should describe the extent of the use, as well as the easement location and boundaries. The location, maintenance, and uses of the easement are defined by the agreement, use, or instrument creating the easement. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, or to do equity (fairness), including giving access to a "land-locked" piece of property. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property.
Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgment in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
An easement by implication can be created if it is at least reasonably necessary to the enjoyment of the original piece of property, the land is divided, so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners, and the use for which the implied easement is claimed existed prior to the severance or sale. The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. An easement by necessity is allowed by law for the full enjoyment of property. An easement to provide access over adjacent property if crossing that property is absolutely necessary to reach a landlocked parcel would be one granted by necessity. Parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity arises only when "strictly necessary".
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states disfavor granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Most litigated easements are those created without permission. An easement by prescription is one that is gained under principles of adverse possession. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. If a person uses another's land for more than the statute of limitations period prescribed by state law, that person may be able to derive an easement by prescription. The use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. The use of the easement must truly be adverse to the rights of the landowner of the property through which the easement is sought and must be without the landowner's permission. If the use is with permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use throughout the statute of limitations period prescribed by state law.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that (1) the movant has a ‘strong’ likelihood of success on the merits; (2) the movant would otherwise suffer irreparable injury; (3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and (4) the public interest would be served by issuance of a preliminary injunction.
