Justia Zoning, Planning & Land Use Opinion Summaries

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Homer, Alaska's Advisory Planning Commission (the Commission) approved a conditional use permit for the owners of a bicycle shop seeking to expand their entryway and install a covered porch. An objecting Homer resident appealed a superior court’s decision to affirm the permit approval, raising numerous procedural, legal, and factual issues. His main contentions were grouped into five general categories: (1) the Commission should have used a variance and not a conditional use permit; (2) the approval process violated various constitutional rights; (3) the Commission erred in its findings supporting the project; (4) the City Planner’s participation in the appeal was inappropriate; and (5) the judge was biased against him. The Alaska Supreme Court determined none of his arguments had merit. The Supreme Court concluded the Homer City Council, in an appropriate use of its legislative discretion, chose the conditional permitted use process to grant certain setback reductions. The Commission’s approval process and findings complied with applicable city code requirements and adequately protected the objecting resident’s rights. The City Planner’s participation in the appeals process was appropriate, and the judge displayed no disqualifying bias. Therefore, the decision to uphold the Commission’s approval of the conditional use permit was affirmed. View "Griswold v. Homer Advisory Planning Commission" on Justia Law

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At issue in this case was whether the Bureau of Land Management (BLM) was required to conduct an environmental analysis under the National Environmental Policy Act (NEPA) when it re-opened an area that it had temporarily closed to off-highway vehicles (OHVs) pursuant to its authority under 43 C.F.R. section 8341.2(a). In 2006, the BLM closed a portion of the Factory Butte area in Utah to OHVs due to their adverse effects on the endangered Wright fishhook cactus. The BLM lifted that closure order in 2019 and re-opened the area to OHV use, but did not perform any kind of environmental analysis under NEPA before doing so. Plaintiffs filed suit pursuant to 28 U.S.C. 1331, alleging violations of NEPA and the Administrative Procedure Act (APA). The district court disagreed with Plaintiffs' contention and dismissed their complaint for failure to state a claim upon which relief could be granted. Finding no reversible error, the Tenth Circuit affirmed the district court. View "Natural Resources Defense v. McCarthy" on Justia Law

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Over 20 years ago, numerous parties alleged in the Antelope Valley Groundwater Cases (AVGC) that, without a comprehensive adjudication of all competing parties' rights to produce water from and a physical solution for the aquifer, the continuing overdraft of the basin would negatively impact the health of the aquifer. In this case, the trial court was required to find a physical solution that balanced the needs of thousands of existing users, all of whom competed for the scarce water that replenished the aquifer underlying the Antelope Valley Adjudication Area (AVAA), and to craft its provisions to protect the long-term health of the aquifer and the region's residents. The trial court determined that severely reduced water usage was required of existing users, and that severely curtailed access was required for future users. On appeal, the Willis Class challenged the judgment approving the Physical Solution, a proposed plan designed to bring the AVAA basin into hydrological balance.The Court of Appeal affirmed the trial court's judgment and concluded that the Physical Solution adequately balanced the competing interests of the parties within the parameters of governing California law and was not inconsistent with the terms of the Settlement. Thus, the court did not abuse its discretion when it equitably apportioned the available groundwater and placed limits and conditions on future pumping. Furthermore, the court rejected Willis's claims that the limits placed on Willis's post-Settlement participation in the litigation amounted to a denial of due process. The court explained that Willis was afforded an adequate notice and opportunity to present its contentions as part of the lengthy process of crafting the final Physical Solution. View "Willis v. Los Angeles County Waterworks District No. 40" on Justia Law

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The Court of Appeal concluded that substantial evidence supported the Commission's decision to issue the cease and desist order requiring plaintiffs to remove structures that were built over a public accessway over the easement area. The court also concluded that the Commission did not violate plaintiffs' due process rights by imposing a $4,185,000 penalty, even though its staff recommended a smaller penalty, because the Commission had previously advised plaintiffs it could impose a penalty of up to $11,250 per day and the Commission staff specifically advised plaintiffs that the Commission could impose a penalty of up to $8,370,000. Accordingly, the court reversed the trial court's judgment remanding the matter to the Commission. The court also concluded that plaintiffs failed to show that Public Resources Code section 30821 is unconstitutional, either on its face or as applied to them. Furthermore, the penalty does not violate the constitutional prohibition on excessive fines. Therefore, the court reversed the superior court's judgment and affirmed the Commission's order. View "Lent v. California Coastal Commission" on Justia Law

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The Supreme Court reversed the decision of the court of appeals affirming the order of the circuit court requiring Polk Properties, LLC and its sole member (collectively, Polk) to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and fees, holding that Polk did not abandon its nonconforming use.At issue was whether Polk abandoned the legal nonconforming use of the subject property after its zoning classification was changed from agricultural to residential. The circuit court enjoined Polk from using the property for agricultural reasons and imposed forfeitures, a monetary judgment for real estate taxes, and an order authorizing special assessments, special charges, and fees to be levied against Polk. The Supreme Court reversed, holding that Polk's use of the property constituted a lawful nonconforming use for which Polk could not be penalized. View "Village of Slinger v. Polk Properties, LLC" on Justia Law

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Plaintiffs-Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff (collectively the “Alliance”) brought a number of claims under Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City City Code, and Santa Fe mayor proclamations. The Alliance alleged the statutes and proclamations violated due process, the Takings Clause, and the First Amendment. Through its amended complaint, the Alliance contended the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The Alliance further contended these legislative and executive acts prevented it from effectively speaking out against the installation of new telecommunications facilities. The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe moved to dismiss under Rule 12(b)(6). The district court concluded that while the Alliance pled sufficient facts to establish standing to assert its constitutional claims, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted, thus dismissing claims against all defendants, including New Mexico Attorney General Hector Balderas. The Tenth Circuit affirmed dismissal of the Alliance's constitutional claims, finding apart from the district court, that the Alliance lacked standing to raise its takings and due process claims not premised on an alleged denial of notice. Furthermore, the Court held that while the Alliance satisfied the threshold for standing as to its First Amendment and procedural due process claims (premised on the WCAIIA and Chapter 27 Amendments), the district court properly dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). View "Santa Fe Alliance v. City of Santa Fe" on Justia Law

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Landowners Cash Aaland, Larry Bakko, and Penny Cirks, appealed orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argued these surveys and examinations are beyond the scope of N.D.C.C. 32-15-06. After review, the North Dakota Supreme Court reversed, concluding the District’s right of entry exceeded the limited testing permitted under the statute. The matter was remanded for a determination on attorney’s fees and costs. View "Cass County Joint Water Resource District v. Aaland, et al." on Justia Law

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Citizens Against Linscott/Interstate Asphalt Plant (“CAL”) challenged a conditional use permit (“CUP”) issued by the Bonner County, Idaho Board of Commissioners (“the County”). The CUP was based on a recent amendment to Bonner County zoning ordinances (“the Amendment”) and authorized Interstate Concrete and Asphalt Company (“Interstate”) to operate an asphalt batch plant within Frank and Carol Linscott’s gravel mine in Sagle, Idaho. In its petition for judicial review by the Bonner County district court, CAL challenged both the validity of the Amendment and the County’s decision to issue the CUP. The district court determined that CAL had standing to file its petition for judicial review of the CUP and that CAL had timely filed its petition. However, the district court concluded that it could not declare the Amendment invalid in a proceeding for judicial review under Idaho Local Land Use Planning Act (“LLUPA”) and the Idaho Administrative Procedure Act (“IDAPA”). Accordingly, the district court upheld the County’s decision to grant the CUP, giving the County deference in applying its own land-use ordinances. During the pendency of this appeal, CAL filed an action for declaratory relief before another district court judge to have the Amendment declared void. In that proceeding, the County admitted that the Amendment had been adopted without proper public notice and stipulated to a judgment and order declaring the Amendment void. On appeal of the administrative decision to the Idaho Supreme Court, CAL argued, among other things, that the subsequent voiding of the Amendment also invalidated the CUP or that the CUP was not issued in conformity with Bonner County zoning laws. After review, the Supreme Court affirmed in part, and reversed in part. The Court found the CUP authorizing the relocation of the Interstate asphalt batch plant to the Linscotts’ gravel mine was invalid because it was based on a void amendment to Bonner County Code. Further, the County acted in a manner that was arbitrary and capricious in refusing to address the gravel pit’s compliance with the nonconforming use provisions of BCRC. View "Citizens Against Linscott v. Bonner County Board of Commissioners" on Justia Law

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Before seeking damages for a governmental taking of property through inverse condemnation, the property owner must generally submit more than one proposal to the permitting authority seeking zoning variances or reducing environmental impacts to the extent necessary to allow at least some economically beneficial or productive use of the property. In this case, the Court of Appeal held that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.The court affirmed the trial court's judgment and fee award in this inverse condemnation action. In this case, the trustee submitted plans to build an ocean-front residential property, but the planning commission rejected the development permit. The court concluded that substantial evidence established that the city would not permit any development below the 127-foot elevation, and that the limited area above that elevation was unbuildable. Therefore, submission of an additional application would have been futile. Furthermore, substantial evidence establishes that it would have been futile to submit modified plans because the agency's decision was certain to be adverse. Finally, the court rejected the city's contention that the trustee failed to litigate his writ petition to conclusion because he did not argue the Public Resources Code section 30010 claim in those proceedings. View "Felkay v. City of Santa Barbara" on Justia Law

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The Eighth Circuit affirmed the district court's denial of plaintiff's motion for a preliminary injunction seeking to enjoin defendants from enforcing the City of Davenport's Special Events Policy against him. In this case, plaintiff seeks to protect his right to share his religious messages in public spaces within Davenport. The district court found that the Street Fest was a traditional public forum and that law enforcement's decision to move plaintiff to an adjacent location was likely a content-neutral limitation on the time, place, and manner of his speech.The court concluded that the district court did not err in determining the Special Events Policy was a content-neutral permitting scheme. Furthermore, even if it the court assumed for purposes of this appeal, without deciding, that plaintiff has shown a likelihood of success on the merits, the court found that plaintiff's inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief. View "Sessler v. City of Davenport" on Justia Law