State Nebraska v. Michael Roy Book Reviews

State Nebraska v. Michael Roy by Supreme Court of Nebraska Book Summary

The single question transferred is whether the defendants right to build a store acquired by permit on May 10, 1955, was revoked on May 24, 1955, by an amendment to the zoning ordinance of Nashua prohibiting such construction. The decisions in the different states on this matter are by no means harmonious and even appear conflicting in some instances within the same jurisdiction. Notes, 138 A.L.R. 500; 40 A.L.R. 928. It appears upon analysis of their facts that a majority of these cases allow relief to the landowner only when he has incurred substantial expenditures or legal obligations relying in good faith upon the permit. Even most of the decisions which appear to take a different view will be found upon examination to show that where the permit was held irrevocable the landowner had in every instance fulfilled these requirements. The theory upon which they proceed is that the owner in such instances has acquired vested rights of which he cannot lawfully be deprived. Herskovits v. Irwin, 299 Pa. 155; Lower Merion TWP. v. Frankel, 358 Pa. 430. While some cases seem to indicate that actual construction must have been commenced before relief may be granted (see Lutz v. New Albany City Plan Comm., 230 Ind. 74), we believe such a rule is too rigid. In many instances this policy might deny relief where the owner had suffered great detriment because of his reliance on the permit and allow it where his damage was slight. It seems to us that the better view and the one more likely to produce Justice is that where the owner, relying in good faith upon a permit and before it has been revoked, has made substantial construction on the property or has incurred substantial liabilities relating directly thereto, or both, the permit may not be cancelled. Herskovits v. Irwin, supra; Lower Merion TWP. v. Frankel, supra; Omaha v. Glissmann, 151 Neb. 895.

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State Nebraska v. Michael Roy (Supreme Court of Nebraska) Book Reviews 2024

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