Justia Zoning, Planning & Land Use Opinion Summaries

In Ohio, to place an advertising billboard on a highway, you must apply for a permit from the Ohio Department of Transportation (ODOT). Under the “compliance rule,” ODOT will not process a permit application if the applicant has outstanding fees, changes his billboard without prior approval from ODOT, or maintains an illegal advertising billboard. ODOT put Kenjoh’s billboard permits on hold under the compliance rule, alleging that Kenjoh was maintaining an illegal billboard.Kenjoh sued, asserting that the compliance rule was an unconstitutional prior restraint under 42 U.S.C. 1983. The district court dismissed his claims for damages and injunctive relief. The Sixth Circuit vacated. While the case was pending on appeal, the Ohio legislature amended a key definition in the statute, which changes how the regulation applies. Before the amendment, a person needed a permit from ODOT to erect a billboard that was “designed, intended, or used to advertise.” Now, a person needs a permit if he will be paid for placing a message on the billboard, regardless of the message. The court affirmed the grant of qualified immunity to an ODOT supervisor on a claim for damages despite the amendment, based on the law as it existed at the time of the official action. View "Kenjoh Outdoor, LLC v. Marchbanks" on Justia Law

In consolidated appeals, the issue presented for the Pennsylvania Supreme Court's review centered on the Commonwealth Court’s holding that, to be held liable for damages under Pennsylvania’s inverse condemnation statute, an entity had to be "clothed with the power of eminent domain" to the property at issue. In 2009, Appellee, UGI Storage Company filed an application with the Federal Energy Regulatory Commission (the “Commission” or “FERC”), seeking a certificate of public convenience and necessity to enable it to acquire and operate certain natural gas facilities. Appellee wished to acquire and operate underground natural gas storage facilities, which the company referred to as the Meeker storage field. Appellee also sought to include within the certificated facilities a 2,980-acre proposed "buffer zone." FERC ultimately granted the application for Appellee to acquire and assume the operation of the Meeker storage field, but denied Appellee’s request to certificate the buffer zone. Appellants petitioned for the appointment of a board of viewers to assess damages for an alleged de facto condemnation of their property, alleging that though their properties had been excluded by FERC from the certificated buffer zone, they interpreted Appellee’s response to the Commission’s order as signaling its intention to apply for additional certifications to obtain property rights relative to the entire buffer zone. The common pleas court initially found that a de facto taking had occurred and appointed a board of viewers to assess damages. Appellee lodged preliminary objections asserting Appellants’ petition was insufficient to support a de facto taking claim. The Supreme Court reversed the Commonwealth Court: "we do not presently discern a constitutional requirement that a quasi-public entity alleged to have invoked governmental power to deprive landowners of the use and enjoyment of their property for a public purpose must be invested with a power of eminent domain in order to be held to account for a de facto condemnation. ... a public or quasi-public entity need not possess a property-specific power of eminent domain in order to implicate inverse condemnation principles." The case was remanded for the Commonwealth Court to address Appellants’ challenge to the common pleas court’s alternative disposition (based upon the landowners’ purported off-the-record waiver of any entitlement to an evidentiary hearing), which had been obviated by the intermediate court’s initial remand decision and that court’s ensuing affirmance of the re-dismissal of Appellants’ petitions. View "Albrecht, et al. v. UGI Storage Co. et al." on Justia Law

Victory Temple, affiliated with a Nigerian evangelical church, was founded in 1996. Victory’s membership grew from about 500 to more than 2,000 members. In 2018, Victory purchased the Property, intending to build a church with a seating capacity of up to 2,000. The zoning permits a church facility as a by-right use. An engineering firm concluded that building a church on the Property was entirely feasible. The Property was in the County’s water and sewer Category 5, an area planned for a future community water and sewer system, and required an upgrade to Category 4 to be developed. Victory submitted an application for a category change; the city manager recommended approval, emphasizing that many nearby parcels were already in Category 3. The Bowie City Council recommended denial. Residents expressed concerns about traffic safety, declining property values, and “light pollution.” The Transportation Committee voted to deny the Application. The County Council denied the Application.The Fourth Circuit upheld an award of declaratory and injunctive relief in favor of Victory under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, The legislative amendment to the Water and Sewer Plan sought by Victory constitutes a land-use regulation subject to RLUIPA and the denial violated RLUIPA’s substantial burden provision. The County made “individualized assessments of the proposed uses for the property involved.” Assuming traffic safety constitutes a compelling governmental interest, the County failed to show how that its denial of the Application was the least restrictive means of furthering that interest. View "Redeemed Christian Church of God v. Prince George's County" on Justia Law

This case arose from Rockdale County, Georgia's denial of an application for a permit to build a QuikTrip on property owned by William Corey and U.S. Enterprises, Inc. (the “Owners”), on the ground that the proposed facility was a “truck stop,” which was a prohibited use under the County’s Unified Development Ordinance (“UDO”). After the County’s Board of Adjustment affirmed the denial of the permit, the Owners filed a petition to the Rockdale County Superior Court seeking, among other things, certiorari under OCGA 5-4-1 et seq. The superior court sustained the petition for certiorari, rejecting the County’s argument that the Owners’ lawsuit was barred by res judicata and reversing the Board’s decision on the ground that the UDO’s applicable definition of a “truck stop” was unconstitutionally vague and therefore violated due process under the Georgia Constitution. The Georgia Supreme Court granted County’s application for a discretionary appeal, and the Owners then cross-appealed. The Supreme Court affirmed the superior court’s rejection of the County’s res judicata argument, reversed the part of the superior court’s judgment ruling that the “truck stop” definition was unconstitutionally vague, and remanded the case for further proceedings. The Court's holding made it unnecessary to address the Owners’ cross-appeal, which was accordingly dismissed as moot. View "Rockdale County et al.. v. U. S. Enterprises, Inc." on Justia Law

In 1981, a Georgia federal district court concluded that Atlanta’s zoning regulations for adult businesses were constitutionally overbroad in their entirety and permanently enjoined their enforcement. Atlanta did not appeal. Cheshire operates an Atlanta adult novelty and video store, Tokyo Valentino, and sued, asserting that the definitions of “adult bookstore,” “adult motion picture theater,” “adult mini motion picture theater,” “adult cabaret,” and “adult entertainment establishment” in the current Atlanta City Code are facially overbroad in violation of the First Amendment.On remand, the district court granted Atlanta summary judgment. The Eleventh Circuit affirmed. The district court did not err in providing a narrowing construction of certain terms (the term “patron” in the definitions of “adult motion picture theater” and “adult mini-motion picture theater”) in the challenged provisions. The phrase “intended, designed, or arranged” suggests that the challenged provisions do not apply to isolated or intermittent uses of the property. Cheshire failed to show that any overbreadth in the provisions is “substantial” as required by Supreme Court precedent. The challenged provisions do not purport to ban the activities or conduct they define or describe but are part of a zoning scheme regulating where covered establishments can locate or operate. View "Cheshire Bridge Holdings, LLC, v. City of Atlanta," on Justia Law

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

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

In 1899, the Barnard E. Bee chapter of the United Daughters of the Confederacy erected a monument of a Confederate soldier in a San Antonio Park, also placing a time capsule beneath the statue. In 1932, the Albert Sidney Johnston (ASJ) chapter of the United Daughters of the Confederacy formed, and that chapter functionally took the place of the Bee chapter when the Bee chapter dissolved in 1972. Over a century after the monument was erected, the City of San Antonio removed both the monument and time capsule. The ASJ chapter filed suit, claiming violations of the First and Fourteenth Amendments.The Fifth Circuit affirmed the district court's dismissal of the complaint based on lack of standing, agreeing with the district court that the ASJ chapter had no property right in the monument, time capsule, or land at the center of the park. The court rejected ASJ's contention that it possesses an easement or license to use the land. Rather, the land was generally inalienable and unassignable. Furthermore, any permission to use the land was limited. Even assuming arguendo that the 1899 document created an easement or irrevocable license, however, it transferred only to the Bee chapter and terminated with its dissolution in 1972. Therefore, the ASJ chapter's failure to establish a particularized injury undermines both of its claims. View "Albert Sidney Johnston Chapter v. City of San Antonio" on Justia Law

For more than 50 years, the Trust has owned contiguous parcels on Garfield Road, Mentor, Ohio, comprising 16.15 acres near the terminus of Norton Parkway, a road completed in 2006 that connects Garfield Road to Center Street, which connects to I-90 via an interchange completed in 2005. According to the Trust, the interchange “has dramatically changed the character of the area" from rural residential to mixed-use, with industrial, office, commercial, medical, senior living and various residential uses. The Trust sought rezoning from “Single Family R-4” to “Village Green – RVG,” hoping to develop 40 single-family residences with five acres of open space. Without the rezoning, the Trust could develop 13 single-family residences. According to the Trust, its Echo Hill Subdivision plan is materially identical to a plan that the city approved for rezoning in 2017, the “Woodlands.” The Planning Commission recommended denial; the City Council adopted that recommendation. According to the Trust, this is the first time that the city has denied an application for rezoning to RVG since 2004.The Sixth Circuit reinstated certain claims. The Trust’s ownership of 16 acres is a sufficient property interest to support its takings claim. The Trust does not need to plead facts negating every possible explanation for the differential treatment between the Trust’s property and the Woodlands for its class-of-one equal-protection claim to survive a motion for judgment on the pleadings. View "Andrews v. City of Mentor" on Justia Law

In 2008, Zito purchased a beachfront house and lot on Nags Head (a barrier island). In 2016, the house burned down. The lot is governed by North Carolina’s Coastal Area Management Act (CAMA): buildings with less than 5,000 square feet must be set back at least 60 feet or 30 times the local rate of erosion, whichever is farther, from the vegetation line. Buildings of less than 2,000 square feet built before June 1979 fall under a grandfather provision, requiring a setback of only 60 feet from the vegetation line. The Zito property qualifies for the grandfather provision but is set back only 12 feet from the vegetation line. In 2018, the coastline by the property eroded at an average rate of six feet per year. Experts indicate that coastal erosion and rising sea levels could cause the property to be underwater by 2024. The permit officer denied Zito’s application to rebuild The Coastal Resources Commission denied a variance, informing Zito of the right to appeal in state superior court.Zito filed suit in federal court, arguing that CAMA’s restrictions amounted to an unconstitutional taking. The Fourth Circuit affirmed the dismissal of the suit. The Commission qualifies as an arm of the state subject to the protection of sovereign immunity; the Eleventh Amendment bars Fifth Amendment taking claims against states in federal court where the state’s courts remain open to adjudicate such claims. View "Zito v. North Carolina Coastal Resources Commission" on Justia Law