Justia Zoning, Planning & Land Use Opinion Summaries

by
The Supreme Judicial Court vacated the judgment of the superior court affirming the decision of the Town of Boothbay Harbor's Board of Appeals (BOA) denying 29 McKown, LLC's administrative appeal from a code enforcement officer's (CEO) decision to life a stop work order he had issued to Harbor Crossing during the construction of the building, holding that 29 McKown was deprived of administrative due process.In this case concerning a real estate office building constructed by Harbor Crossing in Boothbay Harbor, 29 McKown sought review of the denial of its McKown's appeal. The superior court affirmed the BOA's decision. The Supreme Judicial Court vacated the order below, holding (1) 29 McKown was deprived of administrative due process; and (2) the CEO did not issue a judicially-reviewable decision in lifting the stop work order. View "29 McKown LLC v. Town of Boothbay Harbor" on Justia Law

by
The Supreme Court affirmed in part and reversed in part the decision of the circuit court granting summary judgment dismissing claims brought by Luke McAllister, McAllister TD, LLC (MTD), and B-Y Internet, LLC (B-Y) (collectively, McAllisters) against Yankton County, holding that the circuit court erred in part.Yankton County brought an action seeking an injunction against the McAllisters to cease a business that the County alleged was operating in violation of a zoning ordinance. The McAllisters asserted counterclaims for barratry and abuse of process, filed a third-party complaint asserting an abuse of process claim against Yankton County entities, and added a claim against the County's attorney and zoning administrator. The circuit court dismissed all of the McAllisters' claims. The Supreme Court reversed in part, holding that the circuit court erred in granting summary judgment for Yankton County as to barratry counterclaims filed by Luke and MTD. View "Yankton County v. McAllister" on Justia Law

by
The Supreme Court affirmed the judgment of the superior court denying and dismissing all claims in Plaintiffs' complaint challenging a contested amendment to the City of Providence Zoning Ordinance that would allow the construction of a new high-rise building in Providence's Knowledge District, holding that there was no error.Specifically, the Supreme Court held (1) henceforth, when the superior court reviews a case pursuant to R.I. Gen. Laws 45-24-71, review of that judgment must be sought in the Supreme Court through a petition for a writ of certiorari; (2) the hearing justice did not err in determining that Plaintiffs' evidence was insufficient to rebut the presumption of validity of the amendment; and (3) Plaintiffs were not entitled to relief on their remaining allegations of error. View "Peter Scotti & Associates, Inc. v. Yurdin" on Justia Law

by
In 2008, the City of Gulfport undertook a project to replace the infrastructure associated with its water and sewer systems relating to damage caused by Hurricane Katrina in 2005. The repair project involved federal, state, and local agencies and ultimately cost approximately $85 million to complete. The original design of the Area 3B project, the sewer infrastructure that crossed the Cowan Road property located north of U.S. Highway 90 and east of Highway 605 were to be replaced, and the new infrastructure was to be installed within the City’s existing easements across the properties. The Cowan Road property at issue was located in the Area 3B geographic zone. Robert “Kris” Riemann, P.E., then-director of the City’s department of public works, was notified that John Felsher had inquired about relocating the sewer infrastructure in Area 3B. Based on an agreement with Felsher to relocate the utilities, the City had the Area 3B design drawings redrafted to move the utilities. The City's project manager was notified that the discovery of underground telephone lines and other utilities required that the sewer line being relocated had to cut the northwest corner of the property. Cowan Road filed a complaint in the Chancery Court of Harrison County, Mississippi, advancing a claim for inverse condemnation against the City. The chancery court transferred the case to the Special Court of Eminent Domain in Harrison County. Due to the jurisdictional limits of county court, the case ended up in Harrison County Circuit Court. The circuit court entered an order granting the motion for partial summary judgment filed by the City on the issue of the date of the taking. The parties eventually settled the reverse condemnation claim, and the City agreed to pay $100,000 to Cowan Road & Hwy 90, LLC, for the improper and unlawful taking of its property. The issue before the Mississippi Supreme Court centered on the circuit court's grant of attorneys' fees and expenses: Gulfport argued that Cowan Road should not have been allowed to recover attorneys’ fees under Section 43-37-9. Finding that the statute applied and fees were appropriate, the Supreme Court affirmed. However, the Court found the trial judge abused his discretion by disallowing requests for postjudgment interest. View "City of Gulfport v. Cowan Road & Hwy 90, LLC, et al." on Justia Law

by
After concluding that the project was not subject to the Housing Accountability Act (HAA) (Gov. Code 65589.5), the county denied the plaintiffs’ application o build a nearly 4,000-square-foot single-family home on a hillside lot in San Anselmo finding that the home was outsized compared to the surrounding neighborhood. Plaintiffs claim that their planned home qualified as a “housing development project” under the HAA and that the county improperly rejected it based on subjective criteria.The court of appeal affirmed the denial. The county lawfully rejected the plaintiffs’ application; the HAA does not apply to a project to build an individual single-family home. The court rejected the plaintiffs’ equitable-estoppel claims. There was sufficient evidence for the county to deny the project on the basis of the project’s outsized character. View "Reznitskiy v. County of Marin" on Justia Law

by
In 2010, Houston voters approved “Proposition One,” allowing the city to create a “Pay-As-You-Go” Dedicated Drainage and Street Renewal (DDSR) Fund. Perez and others filed an election contest while the city enacted the Drainage Fee Ordinance (DFO), creating a new public utility and requiring Houston to establish drainage fees “against all real property in the city subject to such charges” and “provide drainage for all real property in the city on payment of drainage charges unless the property is exempt.” The DFO based the drainage fees on the benefited property’s type and square footage. Failure to pay drainage fees carried various penalties.In 2015, the Supreme Court held that Proposition One’s ballot language was misleading, rendering the Amendment invalid. Perez then challenged Houston’s assessment, collection, and expenditure of the drainage fee. In 2018, Houston passed a new charter amendment curing many of the defects Perez alleged in the drainage fee ordinance. Perez was left with ongoing claims for reimbursement of the drainage fees she paid before 2018 and for an injunction against the future expenditure of fees collected before 2018. The Texas Supreme Court affirmed the dismissal of those claims but remanded to allow Perez to replead in light of intervening events. Perez’s claims required her to articulate a viable theory of the DFO’s illegality to overcome Houston’s governmental immunity; her only theory failed as a matter of law. View "Perez v. Turner" on Justia Law

by
TexCom sought to develop a commercial-waste-disposal facility on a 27-acre site in Montgomery County, near Conroe, that had one existing nonoperative injection well. TexCom sought to operate the existing well and construct up to three additional wells. Class I underground injection-control wells manage industrial waste by injecting it thousands of feet underground but can potentially harm drinking water and petroleum, so these injection wells undergo an extensive permitting process with the Texas Commission on Environmental Quality (TCEQ). A permit application must be accompanied by a letter from the Railroad Commission (RRC) concluding that the proposed wells “will not endanger or injure any known oil or gas reservoir.” RRC issued such a letter for TexCom but rescinded it after six years of administrative hearings, around the same time TCEQ issued its final order granting the permit application.The Texas Supreme Court affirmed TCEQ’s order granting the permit application as supported by substantial evidence; a migration finding, combined with the injection zone’s geological suitability, is sufficient to support TCEQ’s ultimate finding that the wells would be protective of water. The rescission did not deprive TCEQ of jurisdiction, and, on these facts, TCEQ did not violate the Texas Administrative Procedure Act by declining to reopen the administrative record for further proceedings. View "Dyer v. Texas Commission on Environmental Quality" on Justia Law

by
Southwest Virginia Wildlife Center of Roanoke (SVWC) provides medical and rehabilitative care to 2,000 animals each year. SVWC is located at the end of a shared private easement that is approximately 476 feet long; the other properties that can only be accessed by the easement’s unpaved, single-lane dirt driveway, across their lawns. The easement is not maintained by any governmental entity. SVWC sought a special use permit to build a large “raptor building.” The Zoning Administrator determined that existing “accessory structures” on SVWC's property were either improperly granted zoning permits or had not been granted permits. The Board of Supervisors granted the special use permit, which retroactively authorized the accessory structures and the construction of the raptor building, subject to conditions requiring buffering and materials. Neighboring owners challenged the approval, arguing that traffic on the easement has increased “20- to 50-fold” since, SVWC began operating in 2014, causing “congestion, noise, dust, and light pollution” and posing a danger to their children.The trial court dismissed their complaint, citing lack of standing. The Virginia Supreme Court reversed. The dust, noise, and light pollution allegedly caused by the traffic on the easement constitute particularized harm to the plaintiffs. The complaint sufficiently alleged that the construction of the raptor building and the corresponding expansion of SVWC’s services would cause more traffic and supports a reasonable inference that the decision to retroactively approve the accessory structures would lead to traffic on the easement. View "Seymour v. Roanoke County Board of Supervisors" on Justia Law

by
The Supreme Court reversed the judgment of the circuit court dismissing Petitioner's petition for a writ of certiorari challenging the Lake County Board's decision to grant a variance to Hodne Homes, LLC to build a facility to store and display boats, holding that the circuit court erred.In Dunham I, the Supreme Court reversed the circuit court's denial of Petitioner's challenge to the variance. On remand, the circuit court addressed a newly-raised issue about Petitioner's standing and then dismissed the petition because of a lack of standing. The Supreme Court reversed, holding that Petitioner was an "aggrieved" party with standing to challenge the variance under S.D. Codified Laws 11-2. View "Dunham v. Lake County Commission" on Justia Law

by
The Supreme Court affirmed the judgment of the circuit court finding in favor of the owner of rezoned property who claimed that the triggering of a conditional proffer operated as an unconstitutional condition, holding that the trial court did not err in ultimately reversing the zoning violation.The Board of Supervisors of Albemarle County approved a rezoning for property subject to voluntary proffers. A conditional proffer called the transit proffer continuously applied since the original rezoning. The county approved the establishment of a commuter route to run from Albemarle County to downtown Charlottesville and concluded that a substantial portion of the funding for the route could come from the transit proffer funds. The county approved the appropriation of funds to establish the commuter route. When the property owner failed to make payments required by the transit proffer the county concluded that the owner was in violation of the county's zoning ordinance. The circuit court granted judgment in favor of the owner. The Supreme Court affirmed, holding that the trial court did not err in denying the county's demurrer and motion to strike and did not err in reversing the zoning violation. View "Board of Supervisors v. Route 29, LLC" on Justia Law