Justia Zoning, Planning & Land Use Opinion Summaries

A project developer that used state-allocated federal tax credits for a low-income housing project sued the state housing authority, asserting an option to eliminate a contractual obligation to maintain the project as low-income housing for 15 years beyond the initial 15-year qualifying period. The superior court granted summary judgment in favor of the housing authority, and the developer appealed several aspects of the court’s ruling. After review of the superior court record, the Alaska Supreme Court concluded that court correctly interpreted the relevant statutes and contract documents, and correctly determined there were no material disputed facts about the formation of the parties’ agreements. View "Creekside Limited Partnership, et al. v. Alaska Housing Finance Corporation" on Justia Law

Plaintiffs Krainewood Shores Association, Inc. and Black Cat Island Civic Association appealed a superior court decision granting defendants' Town of Moultonborough (Town) and TYBX3, LLC motion to dismiss. In 2018, TYBX3 sought to develop a vacant lot into condominium storage units for the purpose of storing large “toys,” such as boats, snowmobiles, and motorcycles. The Town’s planning board approved the application in May 2019. Plaintiffs appealed the planning board's decision, and defendants moved to dismiss, arguing the trial court lacked subject matter jurisdiction to hear the complaint as not timely filed. Specifically, the defendants argued that the plaintiffs missed the 30-day deadline imposed by RSA 677:15, I, to file an appeal of a planning board’s decision. To this, the trial court concurred and granted the motion. On appeal, the plaintiffs argue that the trial court erred in granting defendants’ motion to dismiss, and erred in denying plaintiffs’ motion to amend their complaint. Because the trial court did not decide whether to allow plaintiffs to amend their complaint, the New Hampshire Supreme Court vacated the order denying plaintiffs’ motion to amend, and remanded for the trial court to decide, in the first instance, whether plaintiffs’ amended complaint could proceed. The Court expressed no opinion as to the parties’ arguments regarding whether plaintiffs’ amended complaint would cure the jurisdictional defect. View "Krainewood Shores Association, Inc. v. Town of Moultonborough" on Justia Law

Plaintiff David Demarest filed suit against the Town of Underhill, seeking a declaration that he had a right of vehicle access over a Town trail, and appealing the Selectboard’s decision denying his request for highway access to a proposed new subdivision on his property. The superior court granted summary judgment in favor of the Town, concluding that plaintiff’s request for declaratory relief was barred by claim preclusion and that the Town acted within its discretion in denying the permit. On appeal, plaintiff argued the trial court erred in applying claim preclusion, and that the Town exceeded its authority under the statute in denying his request for access. Finding no reversible error, the Vermont Supreme Court affirmed judgment. View "Demarest v. Town of Underhill" on Justia Law

The Moore family, individually or in trust, has owned and maintained the 108-acre Hiram, Ohio property since 1813. They have operated a small airport on the Property since 1948. Around 1951, the Township enacted a zoning resolution that zoned the Property as Rural-Residential and classified the airport as a nonconforming use, permitted to continue so long as the use is not abandoned for two years. The airport remained active in varying degrees but its use for ultralight aircraft and hang gliders started recently, and prompted nuisance complaints from neighbors. In 2016, Township officials told Moore that he needed a certificate of nonconforming use to continue the airport’s operations.The Board of Zoning Appeals voted to grant Moore a certificate but imposed several conditions. The Portage County Common Pleas Court modified the conditions. The Ohio Court of Appeals affirmed.While his state court appeal was pending, Moore filed a federal suit, alleging violations of his procedural and substantive due process rights and his equal protection rights under 42 U.S.C. 1983. The Sixth Circuit affirmed that the suit was barred by principles of claim preclusion. There was a prior final, valid decision on the merits by a court of competent jurisdiction; this action involves the same parties; this action raises claims that were or could have been litigated in the Ohio action; and this suit arose out of the transaction or occurrence that was the subject matter of the Ohio action. View "Moore v. Hiram Township" on Justia Law

At the center of this appeal was a dispute between the Polo Golf and Country Club Homeowners’ Association (the “HOA”) and Forsyth County over the validity of Section 4.2.2 of Forsyth County’s Addendum to the Georgia Stormwater Management Manual, an ordinance that made HOAs “responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.” The HOA argued that Section 4.2.2 was unconstitutional and otherwise invalid, and that individual lot owners were responsible for maintaining stormwater infrastructure on their lots. Variants of this case were litigated and appealed multiple times before the Georgia Supreme Court and other Georgia courts, including a 2019 appeal to the Georgia Supreme Court. On remand from the Supreme Court's "Polo Golf II" decision, the trial court evaluated and rejected the HOA’s remaining claims that Section 4.2.2 was invalid because it required the HOA to trespass on the private property of homeowners, constituted involuntary servitude under the United States and Georgia Constitutions, and exceeded the scope of the ordinance that authorized Forsyth County to promulgate the Addendum. The trial court thus denied the HOA’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed. Finding no reversible error, the Supreme Court affirmed. View "Polo Golf & County Club Homeowners Assn., Inc. v. Cunard et al." on Justia Law

The water court that issued the decision at the heart of this appeal conducted a four-day trial with thousands of pages of exhibits and testimony of experts to decide the meaning of a decree finalized in April 1933. The court "seized" upon a 1936 photograph to declare the decree ambiguous. To cure the ambiguity, the court consulted additional evidence extrinsic to the original proceedings. Ultimately, the court found the water was decreed to a ditch at issue in the appeal. The parties challenged the water court's reliance on the 1936 photograph and extrinsic evidence. After review of the water court's order, the Colorado Supreme Court reversed, finding that there existed a conflict in Colorado case law as to which materials a court could rely on to decide whether a decree of water rights was ambiguous. "While future litigation may require us to reconcile these cases . . . [e]ach method leads to the same result here: The creek water at issue is not decreed to the ditch." Since the photograph was extrinsic to the proceedings that birthed the decree, the water court erred by relying on it to characterize the decree as ambiguous. "Under any of the three interpretive approaches, evidence extrinsic to the underlying proceedings is admissible only after a finding of ambiguity, not to create the ambiguity." View "Mike & Jim Kruse P'ship v. Cotten" on Justia Law

For many years, Lamar Advantage GP Co. displayed an electronic advertisement on a billboard perched atop Mount Washington, which overlooked downtown Pittsburgh. In 2016, Lamar ratcheted a static, vinyl sign over the electronic advertisement and the underlying structure. Believing that this action “enlarged” or “replaced” the sign, the City of Pittsburgh cited Lamar for breaching the City’s Zoning Code. Pittsburgh’s Zoning Board of Adjustment upheld the citation, agreeing with the City that Lamar’s actions enlarged or replaced the sign. On appeal, the Court of Common Pleas reversed the Board. The Commonwealth Court affirmed the lower court. Both courts held that the Board’s conclusion was unsupported by the record. After its review of the case, the Pennsylvania Supreme Court concurred with the common pleas and Commonwealth courts: the record here did not support the Board's legal conclusion that by draping the vinyl static sign over the existing electronic sign and sign structure, Lamar violated the zoning code. View "Lamar Advantage v. City of Pgh ZBA, et al." on Justia Law

Plaintiff-respondent City of Norco (City) filed a receivership action to abate what it described as “nearly 20 life-safety hazards” on a property belonging to defendant-appellant Ronald Mugar. During the litigation, Mugar abated the substandard conditions on the property, and the matter was dismissed. Mugar appealed the trial court's order declaring the City as the prevailing party, and awarding it attorney fees pursuant to Health & Safety Code section 17980.7(c)(11). Mugar contended: (1) his due process rights were violated because the City was represented by a private law firm with an inappropriate financial interest in the litigation, and without adequate supervision by neutral government attorneys; (2) the award of attorney fees unconstitutionally burdened his First Amendment right to petition by penalizing him for asserting defenses in the action; and (3) the City should not be considered the prevailing party. The City argued Mugar forfeited his constitutional arguments, and it contested the merits of Mugar’s claims. After review, the Court of Appeal disagreed with the City that Mugar forfeited his constitutional arguments. On the merits, however, the Court rejected each of Mugar’s contentions and affirmed the judgment. View "City of Norco v. Mugar" on Justia Law

CHKRS leased Friedman’s property and paid $8,500 for an option to purchase by giving 30 days’ notice. With respect to eminent-domain, the lease stated that any money from the City of Dublin was payable to Friedman “until [CHKRS] has procured on the purchase option.” Dublin was constructing a roundabout near the property. Weeks later, Dublin notified the residents that workers would be entering to construct a bike path through the leased property. Dublin initiated a “quick-take” action, adding CHKRS to the suit, and deposited $25,080. with the court. CHKRS emailed Friedman, indicating that CHKRS intended to buy the property. Ohio courts ruled that the email did not “procure” the purchase option and that Friedman was entitled to Dublin’s funds. Dublin began construction. CHKRS sued, citing the driveway's removal. In 2016, the city constructed a new driveway, which CHKRS asserts suffers from design flaws, violates building and traffic codes, creates a hazard, and limits access. CHKRS completed its purchase of the property.CHKRS filed federal litigation, asserting takings and due-process claims, seeking payment for the defective replacement driveway. CHKRS disavowed any attempt to again seek payment for the appropriation of the bike-path easements. The court held that CHKRS lacked Article III standing, reasoning that the state courts had already held that CHKRS lacked a protectable interest in the property.The Sixth Circuit reversed. Article III standing was not the correct doctrine. CHKRS established its standing by alleging a colorable interest in the property for its takings claim. The district court misread Ohio issue-preclusion law in reaching the contrary result. The court affirmed the dismissal of CHKRS’s due-process claims as forfeited. View "CHKRS, LLC v. City of Dublin, Ohio" on Justia Law

The City of Truth or Consequences converted a community center for senior citizens into a visitor center operated by Spaceport America. A local resident, Ron Fenn, unhappy with this change, publicly protested his opposition over a period of several years. Some of his protests were inside the building and included offensive behavior and unauthorized uses of the facility. Several tenants in the building, including Spaceport Director Daniel Hicks, complained to local law enforcement about Fenn’s behavior and presence at the Center. He was issued three no trespass notices pursuant to New Mexico law over that time. Finally, in June 2017, Fenn was arrested and charged with trespass. The charges were later dismissed. Fenn sued, asserting: (1) a 42 U.S.C. 1983 civil rights claim for First Amendment retaliation against Hicks, arresting officer Michael Apodaca, and Police Chief Lee Alirez; (2) a section 1983 claim for malicious prosecution against Apodaca and Alirez; (3) claims against the City for supervisory liability and under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); (4) a section 1983 claim for supervisory liability against Alirez; and (5) a state law claim for malicious abuse of process against Apodaca and Alirez. The district court rejected Fenn’s claims on qualified immunity grounds, and the Tenth Circuit affirmed: the individual defendants were entitled to qualified immunity because no constitutional violation occurred. "And, in the absence of a constitutional violation by Apodaca or Alirez, there is no basis for the Monell and supervisory claims. Finally, the district court correctly dismissed Fenn’s state law claim for malicious abuse of process." View "Fenn v. City of Truth or Consequences" on Justia Law