Justia Zoning, Planning & Land Use Opinion Summaries

As part of a project to construct a new road along the North Diversion Channel, the City of Albuquerque initiated a condemnation proceeding to acquire a thirty-foot-wide strip of land across a 9.859-acre property (Property) owned by SMP Properties, LLC, whose managing member was R. Michael Pack (collectively, SMP). The district court granted Albuquerque entry and ordered the distribution of $143,850 to SMP as “just compensation” for the condemned property. SMP asserted it did not receive full compensation because, prior to initiating the condemnation action, Albuquerque directly communicated its intent to condemn a portion of the Property to one of SMP’s tenants, SAIA Motor Freight Line, LLC (SAIA). Hearing of Albuquerque’s intent to condemn, SAIA apparently decided not to renew its lease before Albuquerque filed the contemplated condemnation action, determining that the condemnation would disrupt its operation and use of the portion of the Property it leased. Based on Albuquerque’s pre-condemnation communications with SAIA and SAIA’s subsequent failure to renew its lease, SMP asserted an inverse condemnation claim against Albuquerque seeking consequential damages, including lost rental income and devaluation of the Property adjacent to the thirty-foot wide strip that Albuquerque condemned. Albuquerque moved for partial summary judgment on SMP’s “claims for consequential damages relating to the loss of potential tenant leases.” The district court granted Albuquerque summary judgment and concluded that Albuquerque’s pre-condemnation activity did not constitute “substantial[] interfere[nce] with the landowner’s use and enjoyment of the [P]roperty,” and therefore, no taking (in the form of an inverse condemnation) occurred. The Court of Appeals reversed the district court, finding there were disputed issues of material fact to preclude summary judgment. Though it did not adopt the appellate court’s reasoning, the New Mexico Supreme Court affirmed reversal of summary judgment. View "City of Albuquerque v. SMP Props., LLC" on Justia Law

Plaintiffs-Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff (collectively the “Alliance”) brought a number of claims under Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City City Code, and Santa Fe mayor proclamations. The Alliance alleged the statutes and proclamations violated due process, the Takings Clause, and the First Amendment. Through its amended complaint, the Alliance contended the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The Alliance further contended these legislative and executive acts prevented it from effectively speaking out against the installation of new telecommunications facilities. The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe moved to dismiss under Rule 12(b)(6). The district court concluded that while the Alliance pled sufficient facts to establish standing to assert its constitutional claims, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted, thus dismissing claims against all defendants, including New Mexico Attorney General Hector Balderas. The Tenth Circuit affirmed dismissal of the Alliance's constitutional claims, finding apart from the district court, that the Alliance lacked standing to raise its takings and due process claims not premised on an alleged denial of notice. Furthermore, the Court held that while the Alliance satisfied the threshold for standing as to its First Amendment and procedural due process claims (premised on the WCAIIA and Chapter 27 Amendments), the district court properly dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). View "Santa Fe Alliance v. City of Santa Fe" on Justia Law

Citizens Against Linscott/Interstate Asphalt Plant (“CAL”) challenged a conditional use permit (“CUP”) issued by the Bonner County, Idaho Board of Commissioners (“the County”). The CUP was based on a recent amendment to Bonner County zoning ordinances (“the Amendment”) and authorized Interstate Concrete and Asphalt Company (“Interstate”) to operate an asphalt batch plant within Frank and Carol Linscott’s gravel mine in Sagle, Idaho. In its petition for judicial review by the Bonner County district court, CAL challenged both the validity of the Amendment and the County’s decision to issue the CUP. The district court determined that CAL had standing to file its petition for judicial review of the CUP and that CAL had timely filed its petition. However, the district court concluded that it could not declare the Amendment invalid in a proceeding for judicial review under Idaho Local Land Use Planning Act (“LLUPA”) and the Idaho Administrative Procedure Act (“IDAPA”). Accordingly, the district court upheld the County’s decision to grant the CUP, giving the County deference in applying its own land-use ordinances. During the pendency of this appeal, CAL filed an action for declaratory relief before another district court judge to have the Amendment declared void. In that proceeding, the County admitted that the Amendment had been adopted without proper public notice and stipulated to a judgment and order declaring the Amendment void. On appeal of the administrative decision to the Idaho Supreme Court, CAL argued, among other things, that the subsequent voiding of the Amendment also invalidated the CUP or that the CUP was not issued in conformity with Bonner County zoning laws. After review, the Supreme Court affirmed in part, and reversed in part. The Court found the CUP authorizing the relocation of the Interstate asphalt batch plant to the Linscotts’ gravel mine was invalid because it was based on a void amendment to Bonner County Code. Further, the County acted in a manner that was arbitrary and capricious in refusing to address the gravel pit’s compliance with the nonconforming use provisions of BCRC. View "Citizens Against Linscott v. Bonner County Board of Commissioners" on Justia Law

The Eighth Circuit affirmed the district court's denial of plaintiff's motion for a preliminary injunction seeking to enjoin defendants from enforcing the City of Davenport's Special Events Policy against him. In this case, plaintiff seeks to protect his right to share his religious messages in public spaces within Davenport. The district court found that the Street Fest was a traditional public forum and that law enforcement's decision to move plaintiff to an adjacent location was likely a content-neutral limitation on the time, place, and manner of his speech.The court concluded that the district court did not err in determining the Special Events Policy was a content-neutral permitting scheme. Furthermore, even if it the court assumed for purposes of this appeal, without deciding, that plaintiff has shown a likelihood of success on the merits, the court found that plaintiff's inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief. View "Sessler v. City of Davenport" on Justia Law

The Eighth Circuit affirmed the district court's dismissal of plaintiff's 42 U.S.C. 1983 claim, alleging that the County's right-of-way dedication ordinance violates their procedural due process rights. The court concluded that plaintiffs' due process and unconstitutional conditions claims are an impermissible attempt to recast a Takings claim. In this case, plaintiffs claim that the County's dedication rules could result in an exaction, which would require consideration of nexus and proportionality. However, the court concluded that this conflates takings and due process law. The court explained that plaintiffs claim a redundant remedy under the due process clause.The court concluded that the ordinance here promotes the government's interest in providing public roads and was not truly irrational. Furthermore, because plaintiffs received individualized notice and an opportunity to be heard on their variance applications, the County provided sufficient notice and opportunity for a hearing about their proposed uses. View "Pietsch v. Ward County" on Justia Law

The Supreme Court reversed the judgment of the trial court reversing the order of the City of Bloomington Board of Zoning Appeals (BZA) affirming the decision of the City of Bloomington citing UJ-Eighty Corporation for a zoning violation, holding that there were not constitutional violations in this case.UJ-Eighty owned a fraternity house at Indiana University (IU) in Bloomington that was located within a district zoned by the City to permit limited residential uses. UJ-Eighty leased its house to an IU-sanctioned fraternity, but before the lease ended, IU revoked its recognition and approval of the fraternity, which meant that no one could live there. Bloomington cited UJ-Eighty for a zoning violation when two residents remained in the house. The BZA affirmed. UJ-Eighty appealed, arguing that the City impermissibly delegated its zoning authority to IJ by allowing it unilaterally to define fraternities and sororities. The trial court agreed and struck down the ordinance's definition of fraternities and sororities under the state and federal constitutions. The Supreme Court reversed, holding that Bloomington did not violate the Fourteenth Amendment because the ordinance was not an impermissible delegation of power or a denial of due process. View "City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corp." on Justia Law

PBT, on behalf of itself and the owners of the other condominiums, sought an injunction in state court barring the Town from levying a special assessment against their properties. The Eleventh Circuit affirmed the district court's grant of the Town's motion for summary judgment on the owners' substantive due process and equal protection claims. In regard to the substantive due process claim, the court concluded that PBT failed to provide evidence showing that the Town lacked a rational basis in enacting the Resolution as a whole. In regard to the equal protection claim, given the relevant differences between the Comparators and the PB Towers, the court concluded that all that PBT has shown is that the Town Council treated dissimilar properties differently. The court concluded that such treatment does not implicate the Equal Protection Clause. Furthermore, even if they were similar, PBT fails to identify any evidence that an objectively reasonable governmental decisionmaker would consider the similarity it proffers.The court also affirmed the Town's motion to dismiss the owners' state law claims. The court explained that the district court was correct to dismiss the state law takings claims asserted in Count III, but erred in dismissing the state law claim alleging an unconstitutional tax. However, the unconstitutional tax claim was properly before the district court only based on supplemental jurisdiction. Because the federal claims were properly dismissed, the district court may decline to exercise supplemental jurisdiction over this state law claim on remand. Finally, the court concluded that the district court did not abuse its discretion by denying the motion to reconsider. View "PBT Real Estate, LLC v. Town of Palm Beach" on Justia Law

To advertise its nearby adult bookstore, Lion’s Den displays a billboard, affixed to a tractor-trailer, on a neighbor’s property. Kentucky’s Billboard Act prohibits such off-site billboards if the advertisement is not securely affixed to the ground, the sign is attached to a mobile structure, and no permit has been obtained. None of these requirements applies to an on-site billboard advertisement. The Act applies equally to commercial and non-commercial speech on billboards.In a First Amendment challenge to the Act, the Sixth Circuit affirmed an injunction, prohibiting the Commonwealth from enforcing its law. The Act regulates commercial and non-commercial speech on content-based grounds by distinguishing between messages concerning on-site activities and those concerning off-site activities. The court applied strict scrutiny and held that the Act is not tailored to achieve Kentucky’s purported interests in safety and aesthetics. Kentucky has offered no reason to believe that on-site signs pose a greater threat to safety than do off-site signs and billboards are a "greater eyesore." View "L.D. Management Co. v. Gray" on Justia Law

The Fourth Circuit affirmed the district court's ruling that three local zoning ordinances are constitutional under the Takings Clause and the Due Process Clause, and that Clayland's equitable claims are moot. In this case, Bill No. 1214 reduced the permissible density of residential properties from four units per acre to one unit per two acres and prohibited subdividing any existing parcel into more than one additional lot. Bill No. 1229 established seven tier classifications related to "the type of subdivision and the kind of wastewater treatment system planned for each subdivision type." Bill No. 1257 extended Bill No. 1214's restrictions on Village Center zones (including the decreased density of residential units and the limitations on new subdivisions) until Talbot County "adopt[ed] . . . comprehensive rezoning and land use regulations regarding density . . . pursuant to the County's comprehensive plan."The court concluded that Bill Nos. 1214 and 1257 do not constitute a taking where the balance of the Penn Central factors ultimately favors the County. The court explained that Bill Nos. 1214 and 1257 were public-benefit regulations that did not deprive Clayland of all development potential and—most significantly, and perhaps even decisively—did not divest Clayland of any vested rights. The court also concluded that Bill Nos. 1214, 1257, and 1229 do not constitute a substantive due process violation. Finally, the court concluded that Clayland's equitable claims are moot. View "Clayland Farm Enterprises, LLC v. Talbot County" on Justia Law

Fisk, an LLC formed in 2018, had two members; one is an attorney. Fisk collaborated with the City of DeKalb regarding the redevelopment of a dilapidated property. Under a Development Incentive Agreement, if Fisk met certain contingencies, DeKalb would provide $2,500,000 in Tax Increment Financing. In 2019, Nicklas became the City Manager and opened new inquiries into Fisk’s financial affairs and development plans. Nicklas concluded Fisk did not have the necessary financial capacity or experience, based on specified factors.Fisk's Attorney Member had represented a client in a 2017 state court lawsuit in which Nicklas was a witness. Nicklas considered funding incentives for other development projects with which, Fisk alleged, Nicklas had previous financial and personal ties.The City Council found Fisk’s financial documents “barren of any assurance that the LLC could afford ongoing preliminary planning and engineering fees,” cited “insufficient project details,” and terminated the agreement. Fisk sued Nicklas under 42 U.S.C. 1983, alleging Nicklas sought to retaliate against Fisk and favor other developers. The Seventh Circuit affirmed the dismissal of the claims. Fisk did not exercise its First Amendment petition right in the 2017 lawsuit. That right ran to the client; Fisk did not yet exist. Fisk had no constitutionally protected property right in the agreement or in the city’s resolution, which did not bind or “substantively limit[]” the city “by mandating a particular result when certain clearly stated criteria are met.” Nicklas had a rational basis for blocking the project, so an Equal Protection claim failed. View "145 Fisk, LLC v. Nicklas" on Justia Law