Justia Zoning, Planning & Land Use Opinion Summaries

by
Applicants Marian Wright and Greg Boester and their neighbors, Day Patterson and Janet Showers, owned abutting parcels of land on the shore of Caspian Lake in Greensboro, Vermont. Neighbors appealed an Environmental Division decision granting applicants a permit to tear down and reconstruct a lakeside structure on their parcel in accordance with a revised plan they submitted just prior to trial. The Vermont Supreme Court reversed, concluding that the court erred both when it determined that the structure at issue was properly designated an “accessory structure” rather than a “boathouse” under the applicable zoning bylaws, and when it declined to remand the materially revised proposal for consideration by the municipal developmental review board in the first instance. View "In Wright & Boester Conditional Use Application (Patterson and Showers, Appellants)" on Justia Law

by
Canton’s 2006 Tree Ordinance prohibits the unpermitted removal, damage, or destruction of trees of specified sizes, with exceptions for agricultural operations, commercial nurseries, tree farms, and occupied lots smaller than two acres. If Canton issues a permit, the owner must replace removed trees on its own or someone else’s property or pay into Canton’s tree fund. For every landmark tree removed, an owner must replant three trees or pay $450. For every non-landmark tree removed as part of larger-scale tree removal, an owner must replant one tree or pay $300.In 2016, Canton approved the division of F.P.'s undeveloped property, noting the permitting requirement. The parcels were bisected by a county drainage ditch that was clogged with fallen trees and debris. The county refused to clear the ditch. F.P. contracted for the removal of the trees and debris and clearing other trees without a permit. Canton determined that F.P. had removed 14 landmark trees and 145 non-landmark trees. F.P. was required to either replant 187 trees or pay $47,898. F.P. filed suit under 42 U.S.C. 1983.The Sixth Circuit affirmed summary judgment for F.P. on its as-applied Fifth Amendment claim; although the ordinance, as applied to F.P., was not unconstitutional as a per se physical taking, it was unconstitutional as a regulatory taking and as an unconstitutional condition. Canton has not made the necessary individualized determination; the ordinance fails the “rough proportionality” required by Supreme Court precedent. View "F.P. Development, LLC. v. Charter Township of Canton" on Justia Law

by
Property owners sued the Matanuska-Susitna Borough, challenging the validity of easements that cross their property to give access to neighboring residences. The superior court dismissed most of the property owners’ claims on res judicata grounds, reasoning that the claims had been brought or could have been brought in two earlier suits over the same easements. The court also granted the Borough’s motions for summary judgment or judgment on the pleadings on the property owners’ claims involving the validity of construction permits, redactions in public records, and whether the Borough had acquired a recent easement through the appropriate process. One claim remained to be tried: whether the Borough violated the property owners’ due process rights by towing their truck from the disputed roadway. The court found in favor of the Borough on this claim and awarded the Borough enhanced attorney’s fees, finding that the property owners had pursued their claims vexatiously and in bad faith. The property owners appealed. The Alaska Supreme Court concluded the superior court correctly applied the law and did not clearly err in its findings of fact. Therefore, the superior court’s judgment was affirmed. View "Windel v Matanuska-Susitna Borough" on Justia Law

by
The Supreme Court denied the writs of prohibition and mandamus sought by Relators to order Respondent, the Union County Board of Elections, to remove a zoning referendum from the November 2, 2021 general-election ballot, holding that Relators' arguments were unavailing.This case concerned the proposed rezoning of approximately 139 acres of property in Plain City, Union County, and Relators in this action owned the property, which was zoned rural residential. When the board of trustees voted to rezone the property to a planned-development district, a group of petitioners filed a referendum petition containing a summary of the zoning amendment. The board of elections certified the petition to be placed on the November 2 election ballot. Relators then filed a protest to the referendum petition, contending that it failed to satisfy the "brief summary" requirement of Ohio Rev. Code 519.12(H). The board voted to deny the protest and allow the referendum to appear on the ballot. The Supreme Court denied Relators' writs, holding that Relators did not show that the board abused its discretion or clearly disregarded applicable law in denying their protest. View "State ex rel. T-Bill Development Co. v. Union County Board of Elections" on Justia Law

by
The Supreme Court quashed in part the decision of the Fourth District Court of Appeal affirming the trial court's dismissal of Appellant's mandamus and certiorari claims and reversing as to Plaintiffs' claims for injunctive and declaratory relief, holding that the appellate court erred in reinstating these claims.Plaintiffs brought this action against the City of West Palm Beach seeking injunctive relief requiring the City to investigate and, if necessary, take enforcement action against an alleged zoning violation. The trial court dismissed all of Plaintiffs' claims against the City. The Fourth District affirmed the trial court's dismissal of Plaintiffs' mandamus and certiorari claims but reversed as to their claims for injunctive and declaratory relief. The Supreme Court quashed the Fourth D/istrit's decision in part, holding that an injunction was not available to compel the City to enforce its zoning ordnance against the third party in this case. View "City of West Palm Beach, Inc. v. Haver" on Justia Law

by
Government Code 65915 requires that municipalities allow increased building density, and grant concessions and waivers of permit requirements, in exchange for an applicant’s agreement to dedicate a specified number of dwelling units to low-income or very low-income households. Neman proposed a Los Angeles mixed-use development, with retail space on the ground floor and 54 residential units above, including five very low-income units and five moderate-income units. The application included a Financial Feasibility Analysis, calculating the cost per unit as $1,106,847 without requested incentives, and $487,857 with incentives. At the City Planning Commission (CPC) hearing, a city planner stated that as a result of A.B. 2501, “financial pro formas, or financial analyses can no longer be considered as part of the density-bonus application.” The CPC approved the project including the requested density bonus plus increased floor area and maximum height, and two waivers (transitional height and rear yard setback requirements). Neighboring owners sued.The court of appeal upheld the approvals. Neither the statute nor the implementing ordinance requires the applicant to provide financial documentation to prove that the requested concessions will render the development “economically feasible.” CPC was required to grant the incentives unless it made a finding that they did not result in cost reductions. It did not make such a finding. It was not required to make an affirmative finding that the incentives would result in cost reductions. View "Schreiber v. City of Los Angeles" on Justia Law

by
Muskan Food sought a writ of mandate challenging the City's approval of a conditional use permit for the development of a neighborhood shopping center across the street from Muskan Food's gas station and convenience store. The superior court denied the petition after concluding that the City did not misinterpret a city ordinance and substantial evidence supported the City's decision to approve the conditional use permit.The Court of Appeal affirmed, concluding that Muskan Food did not exhaust the administrative appeal process set forth in the City's municipal code and this failure bars its lawsuit. The court interpreted the word "petition" broadly and concluded that it encompasses oral requests made to the mayor or councilmember. The court also concluded that the subjective intent of the person seeking to exhaust the administrative procedures is not the appropriate test. Rather, the communication should be given an objectively reasonable interpretation. In this case, Muskan Food, which has the burden of proving it exhausted the administrative remedies, has not established that it fulfilled the Municipal Code's petition requirement by orally requesting the councilmember appeal the planning commission's decision approving the conditional use permit. Furthermore, after applying the objectively reasonable standard to an e-mail Muskan Foods' president sent to the mayor, the court concluded that it does not constitute a "petition" for purposes of Municipal Code section 15-5017-A(2). View "Muskan Food & Fuel, Inc. v. City of Fresno" on Justia Law

by
The Supreme Court dismissed Appellants' appeal from the district court's dismissal of their appeal of a county board's grant of a conditional use permit (CUP) for the development of a commercial wind turbine operation, holding that this Court lacked jurisdiction to hear this appeal.In 2019, the Cherry County Board of Commissioners granted BSH Kilgore, LLC a CUP for the development of a commercial wind turbine operation in Cherry County. Thereafter, the Board granted BSH a four-year extension to build the operation. Appellants filed a "Complaint and Petition on Appeal" challenging the Board's action in granting the extension and asking for a trial de novo. The court dismissed Appellants' appeal, concluding that it lacked jurisdiction because the Board's decision was subject to review only through a petition in error. The Supreme Court dismissed Appellants' subsequent appeal, holding that, under the circumstances, the district court lacked jurisdiction, and therefore, this Court, too, lacked jurisdiction. View "Preserve of the Sandhills, LLC v. Cherry County" on Justia Law

by
Golf Village owns, maintains, and administers a 900-acre planned community in Powell, including one of 11 separate lots in a commercial development. A 2003 “Declaration of Private Roads” refers to the use of private roads by each commercial lot owner, its employees, customers, and invitees. In 2010, one lot was transferred to the city for a municipal park. In 2018, the City began using three streets without Golf Village’s permission, removed a curb, and built a construction entrance. Golf Village sued (42 U.S.C. 1983), claiming that Powell has taken its property without just compensation or due process.The Sixth Circuit affirmed the dismissal of the suit. Golf Village did not establish the loss of its right to exclude; it could terminate the alleged taking by building a gate at the private street's entrance to ensure that everyone who drives on those streets is an invited guest. Under Golf Village’s analysis, any time the government took an action that made a property owner’s property more popular, regardless of what actions the property owner could take, there would be a taking. Any increased traffic, which may lead to additional maintenance costs, is merely a government action outside the owner’s property that causes consequential damages within. There are no material allegations that Golf Village cannot use and enjoy the private roads to the extent that it did before the City’s actions. View "Golf Village North, LLC v. City of Powell" on Justia Law

by
In 2014, Seven Hills LLC began developing a cannabis production and processing business in Chelan County, Washington. After Seven Hills procured the relevant permits and began building on its property, Chelan County (County) passed Resolution 2015-94, which placed a moratorium on siting new cannabis-related businesses. While the moratorium was in place, Seven Hills received the necessary state licenses and began operating its cannabis production and processing business. Shortly thereafter, the County passed Resolution 2016-14, which changed the relevant ordinances resulting in the barring of new cannabis-related businesses. Seven Hills received a notice and order to abate zoning from the County Department of Community Development, containing four allegations: that Seven Hills had (1) produced and processed cannabis in violation of Resolution 2016-14; (2) constructed and operated unpermitted structures; (3) operated unpermitted propane tanks; and (4) created a public nuisance. A hearing examiner found Seven Hills committed all four violations; the trial court and the Court of Appeals affirmed. The Washington Supreme Court held the County’s resolution declaring a moratorium on siting new cannabis production and processing activities did not amend or replace existing zoning ordinances, and that Seven Hills established a nonconforming use prior to adoption of Resolution 2016-14. Further, the Court held that Resolution 2016-14 did amend the County’s ordinances defining agricultural use, but did not retroactively extinguish vested rights. Accordingly, the Court of Appeals was reversed in part and the matter remanded for further proceedings. View "Seven Hills, LLC v. Chelan County" on Justia Law