Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in Civil Procedure
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Long Beach Harbor Resort, LLC (the Resort), leased a parcel of land located on the Public Trust Tidelands from the City of Long Beach. The Mississippi Supreme Court was asked to determine whether the Resort is required to enter into a separate lease with the Secretary of State for the use of the tidelands property or whether the Resort already had a valid lease allowing use of the tidelands in question. The Court found that the State of Mississippi had, through its Boundary Agreement and Tidelands Lease with the City of Long Beach, ratified the prior lease entered into between the City and the Resort. Accordingly, the Court affirmed the chancery court’s grant of summary judgment in favor of the Resort and found that the Resort had a valid tidelands lease as ratified by the Secretary of State. View "Mississippi v. Long Beach Harbor Resort, LLC" on Justia Law

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The Benoits sought to set aside a 2008 judgment under Vermont Rule of Civil Procedure 60(b)(5). The Benoits owned real property in the City of St. Albans, Vermont, which they purchased from the Hayfords in 2003. The property had a main building with multiple rental units and a separate building in the rear of the property. In 1987, the Hayfords converted the rear building to an additional residential unit without first obtaining a zoning permit or site-plan approval, as required by the applicable zoning regulations. The City adopted new zoning regulations in 1998, which made the property more nonconforming in several respects. Both the denial of the certificate of occupancy and a subsequent denial of the Hayfords’ request for variances were not appealed and became final. In 2001, the zoning administrator issued a notice of violation (NOV), alleging that only four of the six residential units on the property had been approved. The Hayfords appealed to the Development Review Board and again applied for variances. The Board upheld the NOV and denied the variance requests based on the unappealed 1998 decision. The Hayfords then appealed to the environmental court, which in 2003 decision, the court upheld the variance denial and upheld the NOV with respect to the sixth residential unit in the rear building. The Hayfords, and later the Benoits, nonetheless “continued to rent out the sixth residence in the rear building despite the notice of violation.” In 2004, the City brought an enforcement action against the Benoits and the Hayfords. The Benoits and Hayfords argued that the actions were barred by the fifteen-year statute of limitations in 24 V.S.A. § 4454(a). The environmental court concluded that “although the Hayfords’ failure to obtain a permit and site-plan approval in 1987 occurred more than fifteen years before the instant enforcement action, a new and independent violation occurred in 1998 when the City adopted its new zoning regulations.” It ordered the Hayfords and the Benoits to stop using the rear building as a residential unit and imposed fines. Appealing the 2004 judgment, an order was issued in 2008, leading to the underlying issue on appeal here: the Benoits contended that decision was effectively overruled by a later case involving different parties. The Environmental Division denied their request and the Vermont Supreme Court affirmed its decision. View "In re Benoit Conversion Application" on Justia Law

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Neighbors appealed an Environmental Division order vacating a municipal notice of violation (NOV) alleging owners were using a two-unit building as an unpermitted duplex. The Environmental Division concluded that a 2006 amendment to the City of Burlington’s zoning ordinance did not automatically reclassify the status or use of the building from a duplex to a single-family home with an accessory dwelling. It also held that a 2014 interior reconfiguration by owners did not change the property’s use, and the zoning statute of limitations, 24 V.S.A. § 4454(a), barred the City’s enforcement action in any case. Finding no reversible error in this judgement, the Vermont Supreme Court affirmed. View "In re Burns 12 Weston Street NOV" on Justia Law

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Consolidated appeals arose from two actions based on real estate development disputes. Plaintiffs sued their former legal counsel, two real estate developers, and executives employed by the developers, alleging that defendants’ tortious conduct deprived them of the opportunity to construct an affordable housing complex on a property in Monroe Township, New Jersey; a second development was planned for Egg Harbor. Plaintiffs had formed NJ 322, LLC with a developer to build a market-rate rental and commercial development on the property. Plaintiffs contended that defendants arranged to have the property rezoned so that only affordable housing could be built on it, at which time the developer withdrew and Plaintiff had no alternative but to sell the property. Plaintiffs’ damages expert prepared a report that included his opinion on “the profits that would likely have been earned by [p]laintiffs in the event that their development goals and objectives in connection with the development of the Project had not been frustrated” by defendants’ alleged conduct. The expert presented lost profits damages models for the development: the profit plaintiffs would have achieved if the development had proceeded as originally planned, and the profit had plaintiffs been the ones to construct the affordable housing project that was actually built. Based on the new business rule, the trial court granted defendants’ motion to bar testimony by plaintiffs’ expert in both cases. The Appellate Division affirmed in both cases. The New Jersey Supreme Court rejected a per se ban on claims by new businesses for lost profits damages, and it declined to follow Weiss v. Revenue Building & Loan Association, 116 N.J.L. 208 (E. & A. 1936) to the extent that it barred any claim by a new business for such damages. "Claims for lost profits damages are governed by the standard of reasonable certainty and require a fact-sensitive analysis. Because it is substantially more difficult for a new business to establish lost profits damages with reasonable certainty, a trial court should carefully scrutinize a new business’s claim that a defendant’s tortious conduct or breach of contract prevented it from profiting from an enterprise in which it has no experience and should bar that claim unless it can be proven with reasonable certainty." The Court remanded these cases so that the trial court could decide defendants’ motions in accordance with the proper standard. View "Schwartz v. Menas, Esq." on Justia Law

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The Jefferson County, Idaho Board of Commissioners (“the County”) granted Appellant Tina Gilgen a conditional use permit that allowed her to place a mobile home on real property she owned with her husband, Kelly Gilgen. The Gilgen property fell within the City of Ririe’s area of impact (“AOI”). The City of Ririe (“the City”) petitioned for judicial review, claiming the County erroneously approved Gilgen’s application by applying Jefferson County zoning ordinances within the AOI instead of City ordinances, which would have resulted in a denial of Gilgen’s application. The City relied on an area of impact agreement between Jefferson County and the City of Ririe, in which the County specifically agreed to apply the City’s ordinances to property located within the AOI (“AOI Agreement”). After the County filed a notice of non-objection, the district court entered an order granting the City’s petition, reversing the County’s original decision, and remanding the matter to the County. On remand, the County issued an amended decision that denied Gilgen’s application for a conditional use permit. Several months later, Gilgen filed three motions for reconsideration of the district court’s order remanding the case, alleging the district court did not have jurisdiction to consider the City’s petition. Each of the motions was denied. The Idaho Supreme Court determined the City did not have standing to petition the district court for review of the County’s decision. The trial court’s judgment was vacated. View "City of Ririe v. Gilgen" on Justia Law

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Northwest Landowners Association filed suit to challenge the constitutionality of North Dakota Senate Bill 2344, which related to subsurface pore space. The district court granted the Association’s cross-motion for summary judgment, concluding S.B. 2344 was unconstitutional under the state and federal takings clauses. The State and Continental Resources appealed the district court’s summary judgment order and amended judgment. On appeal, the State argued S.B. 2344 did not violate the takings clauses and did not constitute an unconstitutional gift, and that the district court misapplied N.D.R. Civ.P. 56 by failing to consider evidence submitted by the State. Continental Resources argued the court erred in analyzing the Association’s facial challenge, in determining pore space had value as a matter of law, and in denying Rule 56(f) discovery. The North Dakota Supreme Court concluded the district court erred in invalidating the entirety of S.B. 2344. The trial court’s judgment was affirmed to the extent that it declared certain portions unconstitutional, but reversed to the extent it declared the remainder of the bill inseparable and invalid. View "Northwest Landowners Association v. State, et al." on Justia Law

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Appellant Saugatuck Dunes Coastal Alliance, argued that lower courts erred when they found that the Michigan Zoning Enabling Act (MZEA) denied it standing to appeal the decisions of the Saugatuck Township Planning Commission (Commission). Prior Court of Appeals decisions relied on by the Saugatuck Township Zoning Board of Appeals (ZBA) and lower courts repeatedly and erroneously read the term “party aggrieved” too narrowly. The Michigan Supreme Court held that the MZEA did not require an appealing party to own real property and to demonstrate special damages only by comparison to other real-property owners similarly situated. The Supreme Court overruled several Court of Appeals decisions to the limited extent that they required: (1) real-property ownership as a prerequisite to being “aggrieved” by a zoning decision under the MZEA; and (2) special damages to be shown only by comparison to other real-property owners similarly situated. The Supreme Court explained, to be a “party aggrieved” under MCL 125.3605 and MCL 125.3606, the appellant must meet three criteria: (1) the appellant must have participated in the challenged proceedings by taking a position on the contested proposal or decision; (2) the appellant must claim some protected interest or protected personal, pecuniary, or property right that will be or is likely to be affected by the challenged decision; and (3) the appellant must provide some evidence of special damages arising from the challenged decision in the form of an actual or likely injury to or burden on their asserted interest or right that is different in kind or more significant in degree than the effects on others in the local community. A portion of the Court of Appeals' judgment was vacated, and the case was remanded back to the circuit court for reconsideration in light of the Supreme Court's holding here. View "Saugatuck Dunes Coastal Alliance v. Saugatuck Twp." on Justia Law

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The issue this case presented for the Washington Supreme Court's review centered on the Department of Natural Resources' ("DNR") land management strategies applicable to certain federal land grants (“state lands”) and county land grants (“forest board lands”), which involves harvesting timber from these lands to generate revenue for state institutions and counties. The petitioners, a group of individuals and nonprofit organizations (collectively Conservation NW), challenged DNR’s land management strategies on the grounds they violated the mandate under Washington Constitution article XVI, section 1 that “[a]ll the public lands granted to the state are held in trust for all the people.” Conservation NW argued DNR’s strategies prioritized maximizing revenue from timber harvests and undercut its obligation to manage granted lands for the broader public interest, which would have been better served by prioritizing conservation and efforts to mitigate climate change, wildfires, and land erosion. DNR contended it had a trustee obligation to manage the state and forest board lands specifically for the state institutions enumerated in the Enabling Act and the county beneficiaries. DNR acknowledged its land management strategies generated revenue but not “at the expense of forest health.” The trial court dismissed Conservation NW’s lawsuit against DNR pursuant to County of Skamania v. Washington, 685 P.2d 576 (1984), establishing DNR as a trustee under the Enabling Act. The Supreme Court affirmed the trial court's dismissal of the case. View "Conservation Northwest v. Commissioner of Public Lands" on Justia Law

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Elton Lovro appealed a judgment dismissing his complaint with prejudice after the district court granted summary judgment in favor of the City of Finley (“City”). Lovro owned a house and property in Finley, Steele County, North Dakota. In March 2020, the City’s water line connected to the curb stop leading to Lovro’s home broke. Water flowed onto the property, damaging Lovro’s driveway and basement. Lovro sued the City for negligence and gross negligence, alleging the damages were caused by the City’s failure to properly operate, maintain, repair, and inspect their water system. Lovro also sued the City for breach of contract based on the City’s failure to properly and safely deliver water to his home. The City responded by denying the allegations that it was negligent, grossly negligent or that its acts or omissions caused the damages. The City denied the existence of any contractual relationship between Lovro and the City. The City affirmatively alleged that it was immune from suit under chapter 32-12.1 of the North Dakota Century Code. Lovro argues the district court erred in granting summary judgment dismissing his claims because the ruling was premature and discovery was still ongoing. Finding no reversible error, the North Dakota Supreme Court affirmed the district court. View "Lovro v. City of Finley" on Justia Law

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Intervenors Micheline Elias and The Fakhourys, LLC (collectively, the developer), appealed a superior court order denying their motion to dismiss a petition filed by the petitioners, George Stergiou, Jen McCarthy, Brendan Sullivan, and Kirankumar Tamminidi (the abutters), challenging a conditional site plan approval granted to the developer by the planning board (the Board) for the respondent City of Dover (the City). In January 2019, the developer applied to the Board for permission to construct a mixed use development project in Dover. After a public hearing, the Board conditionally approved the site plan (the 2019 Approval). The 2019 Approval and Chapter 153, Article II, Section 153-8 of the City’s site review regulations (the Certification Provision) required the developer to provide the Board with copies of the plan in various formats within 90 days. Due to unforeseen circumstances, the developer was unable to meet this deadline. In July 2020, the developer asked the Board to “re-approve” the 2019 application so that the project could move forward. The Board held a duly-noticed meeting, at which it conditionally re-approved the Site Review Plan subject to specified “Conditions to be Met Prior to the Signing of Plans” (the 2020 Approval). The abutters petitioned pursuant to RSA 677:15, challenging the 2020 Approval as unlawful and unreasonable. The New Hampshire Supreme Court concluded the 2019 Approval was not timely appealed and remained in force, and the 2020 Approval was void ab initio. The Court thus affirmed in part, reversed in part, and remanded with instructions to dismiss, with prejudice, the abutters’ RSA 677:15, I, appeal as untimely. View "Stergiou et al. v. City of Dover" on Justia Law