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The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

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Before San Francisco Ordinance 286-13 was adopted in 2013, the Planning Code generally prohibited the enlargement, alteration or reconstruction of “nonconforming units,” which are legal residential housing units that exceed the currently-permitted density for the zoning district in which they are located. The 2013 amendment permits the enlargement, alteration or reconstruction of nonconforming residential units in zoning districts where residential use is principally permitted, if the changes do not extend beyond the “building envelope” as it existed on January 1, 2013. A waiting period of five to 10 years applies for changes to units where a tenant has been evicted employing Administrative Code grounds for evicting a non-faulting tenant, including section 37.9(a)(13), which allows an owner to evict tenants to remove residential units from the rental market in accordance with the Ellis Act. The Ellis Act prohibits local governments from “compel[ling] the owner of any residential real property to offer, or to continue to offer accommodations in the property for rent or lease.” Gov. Code 7060(a). The trial court upheld the amendment. The court of appeal reversed, concluding that the ordinance is preempted by the Ellis Act because it requires an owner who exercises Ellis Act rights to wait years before being eligible for a permit to make alterations. View "Small Property Owners of San Francisco Institute v. City and County of San Francisco" on Justia Law

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Before San Francisco Ordinance 286-13 was adopted in 2013, the Planning Code generally prohibited the enlargement, alteration or reconstruction of “nonconforming units,” which are legal residential housing units that exceed the currently-permitted density for the zoning district in which they are located. The 2013 amendment permits the enlargement, alteration or reconstruction of nonconforming residential units in zoning districts where residential use is principally permitted, if the changes do not extend beyond the “building envelope” as it existed on January 1, 2013. A waiting period of five to 10 years applies for changes to units where a tenant has been evicted employing Administrative Code grounds for evicting a non-faulting tenant, including section 37.9(a)(13), which allows an owner to evict tenants to remove residential units from the rental market in accordance with the Ellis Act. The Ellis Act prohibits local governments from “compel[ling] the owner of any residential real property to offer, or to continue to offer accommodations in the property for rent or lease.” Gov. Code 7060(a). The trial court upheld the amendment. The court of appeal reversed, concluding that the ordinance is preempted by the Ellis Act because it requires an owner who exercises Ellis Act rights to wait years before being eligible for a permit to make alterations. View "Small Property Owners of San Francisco Institute v. City and County of San Francisco" on Justia Law

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The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

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The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

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Front Range Resources, LLC, a private company that owned or managed various water rights, applied for a replacement plan in the Lost Creek Designated Ground Water Basin. Under the plan, Front Range sought to divert water from its existing water rights to recharge the Lost Creek Basin’s alluvial aquifer. It then planned to withdraw the recharged water by increasing the use of its existing wells and by constructing new wells. Defendants (parties that believed their water rights would be impaired by the plan) objected to Front Range’s replacement plan, and the Ground Water Commission ultimately dismissed Front Range’s application with prejudice, allowing Front Range to appeal to the district court. Meanwhile, Front Range and the City of Aurora entered into an option contract for Aurora to purchase some or all of the replacement-plan water upon the replacement plan’s approval. On appeal, the district court rejected Front Range’s use of water rights in the South Platte River in the replacement plan. It further found the replacement plan involved new appropriations and changes of water rights, triggering the anti-speculation doctrine. In granting summary judgment against Front Range, the district court concluded Front Range’s planned use of the replacement-plan water (including its option contract with Aurora) violated the anti-speculation doctrine. Some of the Defendants then pursued attorney fees, arguing Front Range’s claims lacked substantial justification. But the district court denied their motion. After review, the Colorado Supreme Court held the anti-speculation doctrine applied to replacement plans involving new appropriations or changes to designated ground water rights. Because Front Range could not demonstrate that it or Aurora would put the replacement-plan water to beneficial use, the district court did not err in granting Defendants’ motion for summary judgment. Furthermore, the Court concluded the district court did not abuse its discretion in denying Defendants’ motion for attorney fees. View "Front Range Resources, LLC v. Colorado Ground Water Commission" on Justia Law

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Front Range Resources, LLC, a private company that owned or managed various water rights, applied for a replacement plan in the Lost Creek Designated Ground Water Basin. Under the plan, Front Range sought to divert water from its existing water rights to recharge the Lost Creek Basin’s alluvial aquifer. It then planned to withdraw the recharged water by increasing the use of its existing wells and by constructing new wells. Defendants (parties that believed their water rights would be impaired by the plan) objected to Front Range’s replacement plan, and the Ground Water Commission ultimately dismissed Front Range’s application with prejudice, allowing Front Range to appeal to the district court. Meanwhile, Front Range and the City of Aurora entered into an option contract for Aurora to purchase some or all of the replacement-plan water upon the replacement plan’s approval. On appeal, the district court rejected Front Range’s use of water rights in the South Platte River in the replacement plan. It further found the replacement plan involved new appropriations and changes of water rights, triggering the anti-speculation doctrine. In granting summary judgment against Front Range, the district court concluded Front Range’s planned use of the replacement-plan water (including its option contract with Aurora) violated the anti-speculation doctrine. Some of the Defendants then pursued attorney fees, arguing Front Range’s claims lacked substantial justification. But the district court denied their motion. After review, the Colorado Supreme Court held the anti-speculation doctrine applied to replacement plans involving new appropriations or changes to designated ground water rights. Because Front Range could not demonstrate that it or Aurora would put the replacement-plan water to beneficial use, the district court did not err in granting Defendants’ motion for summary judgment. Furthermore, the Court concluded the district court did not abuse its discretion in denying Defendants’ motion for attorney fees. View "Front Range Resources, LLC v. Colorado Ground Water Commission" on Justia Law

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The Supreme Court affirmed the decision of the Board of Zoning Adjustment of the City of Kansas City (BZA) to deny the request of the Antioch Community Church (Church) for a nonuse zoning variance for a digital display on a sign it erected in front of the church building. The circuit court concluded that the BZA erred in denying the variance because (1) contrary to the BZA’s determination, the BZA had the authority to grant the variance; and (2) the Church adequately established the existence of “practical difficulties” so the denial of the variance was not supported by competent and substantial evidence. The Supreme Court granted transfer and affirmed the BZA, holding (1) the BZA had authority to grant a variance if the other requirements for a variance were met; but (2) the record supported the BZA’s decision that the Church did not show “practical difficulties” in operating without the variance. View "Antioch Community Church v. Board of Zoning Adjustment of City of Kansas City" on Justia Law

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The grounds on which the district court denied a petition for a writ of mandamus to compel disclosure of records where members of the Lyon County Board of Commissioners conducted county business on private cellphones and email accounts were erroneous. Appellant brought suit against the Board challenging its approval of a zoning change. Appellant then filed a petition for a writ of mandamus to compel Lyon County to disclose all public records of the commissioners’ communications regarding the change to the county’s zoning plan, including the communications contained on the commissioners’ private cell phones and email accounts. In denying the petition, the district court reasoned that the records were not open to public inspection, within the control of the county, and records of official actions of the county or paid for with public money. The Supreme Court reversed and remanded, holding that the Nevada Public Records Act does not categorically exempt public records maintained on private devices or servers from disclosure. View "Comstock Residents Ass’n v. Lyon County Board of Commissioners" on Justia Law

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The City filed a nuisance abatement action against several businesses and individuals related to medical marijuana dispensaries, which were prohibited by the Pasadena Municipal Code (PMC). Defendants in that action then filed suit against the City, and these two cases were deemed related. The trial court granted the City's request for injunctions, prohibiting defendants from operating their medical marijuana dispensaries in the City. The Court of Appeal affirmed, holding that the PMC states that medical marijuana dispensaries were not permitted, and that non-permitted uses were a nuisance; because defendants operated medical marijuana dispensaries, which was prohibited, and the PMC stated that the operation of a prohibited use was a nuisance, the trial court did not abuse its discretion by finding that the dispensaries were nuisances per se under the PMC; because defendants did not challenge ordinance 7018 within the 90-day period allowed by Government Code section 65009, subdivision (c)(1)(B), their procedural challenge was time-barred; and defendants have not set forth any persuasive arguments that the legal actions here were not authorized by the City Council. View "Urgent Care Medical Services v. City of Pasadena" on Justia Law