Justia Zoning, Planning & Land Use Opinion Summaries

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Since 2011, Jonesboro’s wastewater system has spewed sewage onto Stringer’s property and into her home during heavy rains. Stringer repeatedly complained to the town and its mayor, then brought a “citizen suit” under the Clean Water Act (CWA), 33 U.S.C. 1365, with constitutional claims under 42 U.S.C. 1983 for the uncompensated taking of her property and the mayor’s retaliation. Stringer ran against the mayor in 2014 and claims he retaliated by ignoring her pleas, getting the town to sue her frivolously, and refusing to provide sandbags. The Louisiana Departments of Health (LDOH) and Environmental Quality (LDEQ) have long known about the problems. LDEQ sent the town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH issued a compliance order about the discharges on Stringer’s property, imposed mandatory ameliorative measures, and assessed a daily fine. The district court dismissed, finding that the CWA prohibits such suits when a state is addressing the problem through “comparable” state law and finding her section 1983 claims untimely under Louisiana’s one-year prescriptive period. The Fifth Circuit affirmed as to the section 1983 claims. Stringer was long aware of the underlying facts and failed to sue within a year. The Fifth Circuit reversed in part. The enforcement action to which the court pointed—the state health department’s enforcement of the sanitary code—is not “comparable” to the CWA under circuit precedent. View "Stringer v. Town of Jonesboro" on Justia Law

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Therese and Timothy Holmes appealed a Vermont Public Utility Commission (PUC) decision granting Acorn Energy Solar 2 a certificate of public good (CPG) to build and operate a solar net-metering system. The Holmeses argued the PUC erred in concluding that: (1) Acorn’s application was complete under the PUC Rules; (2) several proposed changes constituted minor amendments; (3) the project would be located on a preferred site; (4) the project would comply with setback requirements; and (5) the project would not have an undue adverse effect on aesthetics, orderly development, wetlands, air pollution, greenhouse gases, and traffic. Finding no reversible error, the Vermont Supreme Court affirmed the PUC's decision. View "In re Petition of Acorn Energy Solar 2, LLC (Therese & Timothy Holmes, Appellants)" on Justia Law

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R & F Financial Services, LLC, appealed a district court order dismissing its claims against Cudd Pressure Control, Inc., and RPC, Inc., and granting Cudd’s and RPC’s counterclaims and cross claims. North American Building Solutions, LLC (“NABS”) and Cudd Pressure Control, Inc. (“Cudd”) entered into an agreement where Cudd would lease from NABS 60 temporary housing modules for employee housing. The terms of the Lease required Cudd, at its sole expense, to obtain any conditional use permits, variances or zoning approvals “required by any local, city, township, county or state authorities, which are necessary for the installation and construction of the modules upon the Real Property.” The Lease was set to commence following substantial completion of the installation of all the modules and was to expire 60 months following the commencement date. NABS assigned its interest in 28 modules under lease to R & F; NABS sold the modules to R & F by bill of sale. Cudd accepted the final 32 modules from NABS, to which R & F was not a party. RPC, as the parent company of Cudd, guaranteed Cudd’s performance of payment obligations to R & F under the Lease. The Lease was for a set term and did not contain an option for Cudd to purchase the modules at the expiration of that set term. At the time R & F purchased NABS’s interest in the Lease, it understood the purpose of the Lease was to fulfill Cudd’s need for employee housing. The County required a conditional use permit for workforce housing, and Cudd had been issued a permit allowing for the use of the modules as workforce housing. The City of Williston annexed the Property within its corporate limits. Thereafter, the City adopted a resolution that declared all workforce housing was temporary and extension of permits was subject to review. The City modified the expiration date policy and extended all approvals for workforce housing facilities to December 31, 2015, such that all permits would expire the same day. In December 2015, Cudd successfully extended its permit for the maximum time permitted to July 1, 2016. Cudd sent a letter to NABS stating that it viewed the Lease as being terminated by operation of law as of July 1, 2016. R & F argued the trial court erred in finding the Lease was not a finance lease and, in the alternative, that the court erred in finding the doctrines of impossibility of performance and frustration of purpose to be inapplicable. Finding no reversible error, the North Dakota Supreme Court affirmed. View "R & F Financial Services v. North American Building Solutions, et al." on Justia Law

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A Compact between Pennsylvania and New Jersey created the Delaware River Joint Toll Bridge Commission, which is authorized to “acquire, own, use, lease, operate, and dispose of real property and interest in real property, and to make improvements,” and to "exercise all other powers . . . reasonably necessary or incidental to the effectuation of its authorized purposes . . . except the power to levy taxes or assessments.” The Commission undertook to replace the Scudder Falls Bridge, purchased land near the bridge in Pennsylvania, and broke ground on a building to house the Commission’s staff in a single location. Pennsylvania Department of Labor and Industry inspectors observed the construction; the Commission never applied for a building permit as required under the Department’s regulations. The Commission asserted that it was exempt from Pennsylvania’s regulatory authority. The Department threatened the Commission’s elevator subcontractor with regulatory sanctions for its involvement in the project. The Commission sought declaratory and injunctive relief.After rejecting an Eleventh Amendment argument, the Third Circuit upheld an injunction prohibiting the Department from seeking to inspect or approve the elevators and from further impeding, interfering, or delaying the contractors. Pennsylvania unambiguously ceded some of its sovereign authority through the Compact. The fact that both states expressly reserved their taxing power—but not other powers—indicates that they did not intend to retain the authority to enforce building safety regulations. View "Delaware River Joint Toll Bridge Commission v. Secretary Pennsylvania Department of Labor and Industry" on Justia Law

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Plaintiff-respondent City of Norco (City) filed a receivership action to abate what it described as “nearly 20 life-safety hazards” on a property belonging to defendant-appellant Ronald Mugar. During the litigation, Mugar abated the substandard conditions on the property, and the matter was dismissed. Mugar appealed the trial court's order declaring the City as the prevailing party, and awarding it attorney fees pursuant to Health & Safety Code section 17980.7(c)(11). Mugar contended: (1) his due process rights were violated because the City was represented by a private law firm with an inappropriate financial interest in the litigation, and without adequate supervision by neutral government attorneys; (2) the award of attorney fees unconstitutionally burdened his First Amendment right to petition by penalizing him for asserting defenses in the action; and (3) the City should not be considered the prevailing party. The City argued Mugar forfeited his constitutional arguments, and it contested the merits of Mugar’s claims. After review, the Court of Appeal disagreed with the City that Mugar forfeited his constitutional arguments. On the merits, however, the Court rejected each of Mugar’s contentions and affirmed the judgment. View "City of Norco v. Mugar" on Justia Law

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The Supreme Court held that a letter contesting a notice of zoning violation was not a "request" as defined by Minn. Stat. 15.99, subd. (1)(c) and therefore did not entitle respondent property owners to the benefit of the automatic approval provision in Minn. Stat. 15.99, subd. (2)(a).The automatic approval provision requires agencies to, within sixty days, approve or deny a written zoning request. Failure to deny such a request within sixty days is deemed an approval of the request. Respondents received notice of a zoning violation from the City of Shorewood after installing a dock and contested the zoning violation in a written letter to the city planning commission. The City did not respond. Thereafter, Respondents were charged by criminal complaint with two misdemeanor violations of the city code. The district court granted Respondents' pretrial motion to dismiss, concluding that Respondents' letter was a "request" under Minn. Stat. 15.99, subd. 1(c), and therefore, Respondents' request for zoning action was automatically approved by operation of law. The Supreme Court reversed, holding that the letter was not a "request" under the statute. View "State v. Sanschagrin" on Justia Law

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CHKRS leased Friedman’s property and paid $8,500 for an option to purchase by giving 30 days’ notice. With respect to eminent-domain, the lease stated that any money from the City of Dublin was payable to Friedman “until [CHKRS] has procured on the purchase option.” Dublin was constructing a roundabout near the property. Weeks later, Dublin notified the residents that workers would be entering to construct a bike path through the leased property. Dublin initiated a “quick-take” action, adding CHKRS to the suit, and deposited $25,080. with the court. CHKRS emailed Friedman, indicating that CHKRS intended to buy the property. Ohio courts ruled that the email did not “procure” the purchase option and that Friedman was entitled to Dublin’s funds. Dublin began construction. CHKRS sued, citing the driveway's removal. In 2016, the city constructed a new driveway, which CHKRS asserts suffers from design flaws, violates building and traffic codes, creates a hazard, and limits access. CHKRS completed its purchase of the property.CHKRS filed federal litigation, asserting takings and due-process claims, seeking payment for the defective replacement driveway. CHKRS disavowed any attempt to again seek payment for the appropriation of the bike-path easements. The court held that CHKRS lacked Article III standing, reasoning that the state courts had already held that CHKRS lacked a protectable interest in the property.The Sixth Circuit reversed. Article III standing was not the correct doctrine. CHKRS established its standing by alleging a colorable interest in the property for its takings claim. The district court misread Ohio issue-preclusion law in reaching the contrary result. The court affirmed the dismissal of CHKRS’s due-process claims as forfeited. View "CHKRS, LLC v. City of Dublin, Ohio" on Justia Law

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Charles K. Breland, Jr., purchased land in Baldwin County, Alabama to build a housing subdivision. The subdivision he planned to construct required filling about 10.5 acres of wetlands, which the City of Fairhope and Baldwin County opposed. Breland and Breland Corporation (collectively, Breland) sued Fairhope, claiming that they had a vested right to fill the wetlands, that Fairhope's ordinances could not prevent them from filling the wetlands, that Fairhope had acted negligently regarding Breland's application for a land- disturbance permit, and that Breland's criminal citation for beginning work without a permit should have been expunged. The trial court rejected their claims following a nonjury trial. Breland appealed the trial court's judgment. The Alabama Supreme Court concluded Breland did not establish Fairhope's ordinances were invalid or that it had obtained a vested right to fill the wetlands on the property. Further, the Breland parties' argument that Breland's citation should have been expunged was premised on the notion that he was not obligated to comply with Fairhope's ordinances in existence at the time of his citation. Because the Supreme Court rejected that premise, the Breland parties' request for expungement was moot. And because this matter was not reversed or remanded for further proceedings and there was no other apparent remedy at this stage, the Breland parties' claim that the trial court erred by allowing The Battles Wharf/Point Clear Protective Association to intervene was moot. View "Breland v. City of Fairhope" on Justia Law

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The Supreme Court affirmed the order of the district court approving the Dodge County Board of Adjustment's grant of variance for a 4-H pigpen built in violation of county setback requirements, holding that competent evidence supported the district court's factual findings and that the district court did not err or abuse its discretion in approving the variance.The variance was based on, within the meaning of Neb. Rev. Stat. 23-168.03(1)(c), peculiar and exceptional practical difficulties or exceptional and undue hardships. In affirming the Board's decision to grant a variance, the district court found that the Board's decision was reasonable, well considered, and within the Board's discretion. The Supreme Court affirmed, holding that the district court did not make an error of law or abuse its discretion in determining that the narrowness or shape of the property resulted in sufficient hardship to justify upholding the Board's decision to grant the variance. View "Dolezal-Soukup v. Dodge County Board of Adjustment" on Justia Law

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The Supreme Court affirmed the decision of the district court finding that E. Jane Egan lacked standing to challenge the Lancaster County Board of Commissioners' issuance of a special use permit allowing Randy Essink to construct and operate a poultry production facility on land within the county's agricultural zoning district and that the permit was appropriately issued, holding that the district court did not err.Egan and Janis Howlett challenged the Board's decision in the district court, asserting that the proposed poultry production facility would lead to adverse effects on the environment, properly values, public health, and local infrastructure. The district court affirmed the issuance of the special use permit, concluding that Egan did not have standing and that the permit was appropriately issued. The Supreme Court affirmed, holding that the district court did not err by failing to find that Egan had standing and finding that the special use permit was properly approved. View "Egan v. County of Lancaster" on Justia Law