Justia Zoning, Planning & Land Use Opinion Summaries

Brothers Newton and Jason Wells (plaintiffs) and their mother Beverly Wells, filed suit in September 2017 seeking to partition real property they held as tenants in common with defendant Pall Spera in Stowe, Vermont. The court granted plaintiffs’ summary-judgment motion on the question of whether they were entitled to partition as a matter of law, and issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report. Ultimately, the commissioners concluded that physical division would cause great inconvenience to the parties. Finding division inequitable, the commissioners awarded defendant first right of assignment due to his ability to buy out plaintiffs’ interest immediately, while plaintiffs required a loan to do so, and because partition would constitute the dissolution of the partnership agreement, which defendant had wished to continue. Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii). Plaintiffs’ main argument was that the commissioners exceeded their mandate as provided by the order of reference in concluding that partition would result in zoning violations, and the commissioners erred on that question as a matter of law. In the alternative, they argued the equities favored assigning the property to them. The court denied the motion, including plaintiffs’ request for a hearing, and adopted the report without qualification. It reasoned that plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). Finding no reversible error in this decision, the Vermont Supreme Court affirmed. View "Wells et al. v. Spera" on Justia Law

Petitioners sought the Oregon Supreme Court's review of an order of the Energy Facility Siting Council (EFSC) that approved an Idaho Power Company (Idaho Power) application for a site certificate to construct a high-voltage electrical transmission line from Boardman, Oregon, to Hemingway, Idaho. Petitioner STOP B2H Coalition (Stop B2H) contended that EFSC erred by : (1) denying Stop B2H’s request for full party status in the contested case proceedings; (2) granting an exception or variance to noise level requirements; (3) modifying the governing rule to limit the noise assessment to landowners within one-half mile of the transmission line; and (4) misapplying EFSC’s rules on the visual impacts from the transmission line. Petitioner Michael McAllister contended EFSC erred by failing to require Idaho Power to include in its application an “environmentally preferable” location for a segment of the transmission line in Union County. Petitioner Irene Gilbert contended EFSC erred by: (1) denying Gilbert’s request for full party status; (2) failing to document the impacts on historic properties and mitigation measures; (3) delegating future approval of mitigation plans to the Oregon Department of Energy (ODOE); (4) relying on federal standards to determine mitigation requirements for historic properties; and (5) modifying a mandatory site certificate condition without rulemaking. Applying the governing standard of review, the Supreme Court affirmed EFSC’s final order approving the site certificate for this transmission line. View "Stop B2H Coalition v. Dept. of Energy" on Justia Law

Government Code 65913.4 provides for streamlined, ministerial approval of affordable housing projects meeting specified requirements. Berkeley denied Ruegg’s application for ministerial approval of a mixed-use development under section 65913.4. Ruegg alleged violations of both section 65913.4 and the Housing Accountability Act (HAA, section 65589.5). The trial court found Berkeley was not required to approve the proposed project under section 65913.4 and denied Ruegg’s petition without reaching the HAA issues. The court of appeal, without addressing the HAA, directed the trial court to grant the writ petition.On remand, the trial court reasoned that it could not avoid ruling on the HAA issues. With respect to the section 65913.4 claim the court ordered Berkeley to issue the permits; it set a briefing schedule and hearing date concerning the HAA issues. The court of appeal declined to prohibit that hearing. Berkeley issued the permit. After a hearing, the trial court found that the disapproval of the application violated the HAA and that Ruegg was entitled to the “albeit duplicative” injunctive relief. The court of appeal affirmed, finding that the trial court had jurisdiction to address the HAA issue, which was not forfeited nor rendered moot by the prior order. View "Ruegg & Ellsworth v. City of Berkeley" on Justia Law

At issue in this case before the New Jersey Supreme Court was whether the Township of West Orange improperly designated the site of its public library as an area in need of redevelopment under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. The local Planning Board hired a consulting firm to evaluate the Library. The firm concluded the Library met the statutory conditions. The Board, in turn, adopted that conclusion and recommended the site of the Library be designated an area in need of redevelopment. The Township Council agreed. Plaintiff Kevin Malanga, who lived in West Orange, filed a lawsuit to challenge the designation. The trial court rejected his arguments and dismissed the complaint, and the Appellate Division affirmed. The Supreme Court found the Township’s designation was not supported by substantial evidence in the record: the record did not establish that it suffered from obsolescence, faulty arrangement, or obsolete layout in a way that harmed the welfare of the community. The Township argued that even though the Library actively provided services to the residents of West Orange, it could have better served the public if it had more programming and computers, among other things. "That laudable concept, by itself, does not satisfy the standards in the LRHL." View "Malanga v. West Orange Twp." on Justia Law

For years, the High Lonesome Ranch restricted access to two roads by locking a gate. But in 2015, during a county meeting, the Garfield County Commission directed the Ranch to remove the locked gate after concluding that the two disputed roads were subject to public rights-of-way. The Ranch refused and filed a declaratory-judgment action in Colorado state court opposing the County’s position. At first, the County asked the state court to dismiss the case for failure to name the U.S. Bureau of Land Management (“BLM”) as a party. But rather than dismissing, the state court ordered the Ranch to join the United States (BLM) as a necessary party, and the Ranch did so. The United States removed the case to federal district court. In October 2020, after a five-day bench trial, the district court ruled that the entire lengths of the two disputed roads were subject to public rights-of-way. On appeal—and for the first time—the Ranch contended that various procedural shortcomings deprived the district court of subject-matter jurisdiction. It also challenged the district court’s rights-of-way rulings. The Tenth Circuit affirmed the district court’s adverse-use ruling, but reversed its Colorado R.S. 2477 ruling and remanded for the court to reconsider that ruling under recent circuit authority governing acceptance of R.S. 2477 rights. The Court also remanded for the district court to determine the locations and widths of the rights-of-way by survey. View "High Lonesome Ranch v. Board of County Commissioner, et al." on Justia Law

Southern California Edison Company (Edison), an investor-owned public utility, filed a complaint in eminent domain to condemn an easement across a landowner’s property for the purpose of accessing and maintaining existing power transmission lines. Edison also filed a motion for order of prejudgment possession under the quick-take provisions of Code of Civil Procedure section 1255.410.1 The trial court granted the motion. The landowners filed a petition for writ of mandate requesting the court vacate the order granting Edison prejudgment possession.   The Fifth Appellate District vacated the order of prejudgment possession and directed the trial court to conduct further proceedings on the motion. Because the maintenance of power transmission lines is a matter of urgency, the court issued a peremptory writ in the first instance. The court explained a trial court evaluating a quick-take motion in the absence of a timely opposition shall grant the motion “if the court finds each of the following: (A) The plaintiff is entitled to take the property by eminent domain (B) The plaintiff deposited pursuant to Article 1 an amount that satisfies the requirements of that article.”   Here, the trial court did not make express findings. Among other things, the court did not expressly find that it was necessary for the access easement to be 16 feet wide, that the 16-foot-wide access easement was compatible with the least private injury, or that it was necessary for Edison to have the right to move guy wires and anchors, crossarms, and other physical fixtures onto the property. View "Robinson v. Super. Ct." on Justia Law

The City of Biloxi and Harrison County, Mississippi adopted a joint resolution that authorized the lease of a piece of property to RW Development, LLC, for the development of a joint public/private pier seaward of Veterans Avenue. As a result, the State initiated this case seeking a declaratory judgment that the State was the sole and exclusive authority to lease Public Trust Tidelands, that the City had no authority to lease the subject property to RW, and that preliminary and permanent injunctive relief should issue against the actions of the City and RW. The Chancery Court of Harrison County denied the State’s requested relief and ultimately determined that the City and County had statutory authority to lease the property to RW for public use. Because the Mississippi Supreme Court agreed that Mississippi statutory law granted the City authority to build the pier, the court granted the chancery court's judgment. View "Mississippi v. RW Development, LLC, et al." on Justia Law

Olga Marcela Escobar-Eck was the President and Chief Executive Officer of Atlantis, a land use and strategic planning firm in San Diego. Atlantis helped submit an application, on behalf of All People’s Church (Church) to the City of San Diego (City) for the development of a church campus. The Church hired Atlantis around 2019 to guide it through the City's review and approval process. To this end, Escobar-Eck attended public meetings concerning the Church project and identified herself as a representative of the Church. Plaintiff Joshua Billauer lived in San Diego and worked for Wells Fargo. He was a neighborhood activist, and owned property in the Del Cerro area where the Church project was proposed. Billauer did not favor the Church project, emphasizing the project’s lack of housing despite the “ ‘major housing crisis’ ” in San Diego and speaking against it at community meetings. In 2020, Escobar-Eck was making a presentation on Zoom to a community planning group on behalf of the Church. During the a person who only was identifiable by the name "JJ" sent private messages to her through Zoom’s chat function, accusing Escobar-Eck of being dishonest about a house purchase that occurred near the Church. At the time of the message, Escobar-Eck did not know JJ’s true identity. Later, she learned JJ was Billauer. On December 10, 2020, Escobar-Eck posted a tweet on Twitter that was directed at Billauer’s employer, Wells Fargo, asserting Billauer was “[a] racist person who is engaging in cyberbullying.” On February 16, 2021, Billauer sued Escobar-Eck. The operative complaint includes a single cause of action entitled “Recovery of Damages.” Billauer claims that Escobar-Eck’s December 10 tweet constituted libel per se and intentional infliction of emotional distress. Billauer appealed an order denying his special motion to strike a cross-complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. In denying the motion, the court found that Billauer’s alleged posts were protected speech under the anti-SLAPP statute, but Escobar-Eck had shown a probability of success on the merits for her libel per se claim. The Court of Appeal concluded Escobar-Eck has satisfied her burden to establish a probability of success on the merits, and Billauer has not provided evidence to defeat her claims as a matter of law. View "Billauer v. Escobar-Eck" on Justia Law

The City of Palm Springs closed off one of its downtown streets to all vehicular traffic for a period of three years to allow a tourism organization to install and display a large statue of Marilyn Monroe in the middle of the street. A citizens’ group called the Committee to Relocate Marilyn ("the Committee") petitioned for a writ of administrative mandate challenging the street closure, alleging the City did not have the statutory authority to close the street. Additionally, the Committee alleged the City erroneously declared the street closure categorically exempt from environmental review under the California Environmental Quality Act (CEQA). The City demurred to the petition for writ of administrative mandate, arguing it had the authority to close the street for three years under Vehicle Code section 21101(e), and its local equivalent, Palm Springs Municipal Code section 12.80.010. The City claimed the street closure was temporary, and therefore permissible. Further, the City argued the CEQA cause of action was untimely. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal in favor of the City. After its review, the Court of Appeal concluded the Committee pleaded allegations sufficient to establish: (1) the City exceeded its authority under the Vehicle Code and Municipal Code; and (2) the timeliness of its CEQA cause of action. After the notice of exemption was filed, the City abandoned its plan to vacate vehicular access to the street and elected to close the street instead. Because the City materially changed the project after it filed its notice of exemption, and it did not afford the public an opportunity to consider the revised project or its environmental effects, the notice of exemption did not trigger a 35-day statute of limitations. Instead, the CEQA cause of action was subject to a default statute of limitations of 180 days, measured from the date the Committee knew or should have known about the changed project. The Court determined the Committee timely filed its CEQA cause of action. In light of these conclusions, the Court reversed the judgment of dismissal, vacated the demurrer ruling, and instructed the trial court to enter a new order overruling the demurrer as to these three causes of action. View "Committee to Relocate Marilyn v. City of Palm Springs" on Justia Law

The U.S. Nuclear Regulatory Commission granted a license to Interim Storage Partners to store spent nuclear fuel near the New Mexico border. New Mexico challenged the grant of this license, invoking the Administrative Procedure Act, and the National Environmental Policy Act. The Commission moved to dismiss for lack of jurisdiction. Objecting to the motion, New Mexico invoked jurisdiction under the combination of the Hobbs Act, and the Atomic Energy Act. The Tenth Circuit determined these statutes could combine to trigger jurisdiction only when the petitioner was an aggrieved party in the licensing proceeding. This limitation applied here because New Mexico didn’t participate in the licensing proceeding or qualify as an aggrieved party. "New Mexico just commented to the Commission about its draft environmental impact statement. Commenting on the environmental impact statement didn’t create status as an aggrieved party, so jurisdiction isn’t triggered under the combination of the Hobbs Act and Atomic Energy Act." The Court found the Nuclear Waste Policy Act governed the establishment of a federal repository for permanent, not temporary storage by private parties like Interim Storage. And even when an agency acts ultra vires, the Court lacked jurisdiction when the petitioner had other available remedies: New Mexico had other available remedies by seeking intervention in the Commission’s proceedings. So the Commission’s motion to dismiss the petition was granted for lack of jurisdiction. View "Balderas, et al. v. United States Nuclear Regulatory Commission, et al." on Justia Law