Justia Zoning, Planning & Land Use Opinion Summaries

A public utility filed a condemnation action seeking the land use rights necessary to construct a natural gas storage facility in an underground formation of porous rock. The utility held some rights already by assignment from an oil and gas lessee. The superior court held that because of the oil and gas lease, the utility owned the rights to whatever producible gas remained in the underground formation and did not have to compensate the landowner for its use of the gas to help pressurize the storage facility. The court held a bench trial to determine the value of the storage space. The landowner appealed the resulting compensation award, arguing it retained ownership of the producible gas in place because the oil and gas lease authorized only production, not storage. It also argued it had the right to compensation for gas that was discovered after the date of taking. The landowner also challenged several findings related to the court’s valuation of the storage rights: that the proper basis of valuation was the storage facility’s maximum physical capacity rather than the capacity allowed by its permits; that the valuation should not have included buffer area at the same rate as area used for storage; and that an expert’s valuation methodology, which the superior court accepted, was flawed. The Alaska Supreme Court concluded the superior court did not err in ruling that the landowner’s only rights in the gas were reversionary rights that were unaffected by the utility’s non-consumptive use of the gas during the pendency of the lease. Furthermore, the Court concluded the trial court did not clearly err with regard to findings about valuation. View "Kenai Landing, Inc. v Cook Inlet Natural Gas Storage, et al." on Justia Law

The Alaska Department of Transportation and Public Facilities (DOT or the State) condemned a strip of property along the Parks Highway. DOT filed a declaration of taking, allowing it to take title immediately, and deposited approximately $15,000 in court as estimated compensation for the taking. The landowner challenged DOT’s estimate and was eventually awarded approximately $24,000, as well as attorney’s fees and costs. Pursuant to AS 09.55.440, the superior court awarded prejudgment interest to the landowner on the difference between the amount of DOT’s initial deposit and the amount the property was ultimately determined to be worth. The landowner appealed, arguing that the prejudgment interest should have been calculated on the difference between the deposit and his entire judgment, including significant amounts for attorney’s fees and appraisal costs. The Alaska Supreme Court concluded the landowner’s argument was not supported by the statutory language, legislative history, or policy. Furthermore, the Court rejected the landowner’s arguments that the superior court applied the wrong postjudgment interest rate and abused its discretion by denying discovery of the State’s attorneys’ billing records. The trial court failed to state its reasons for excluding attorney time from its attorney's fees award, and therefore vacated that award and remanded for reconsideration only of the fees award. View "Keeton v. Alaska, Department of Transportation and Public Facilities" on Justia Law

A fully nude strip club filed suit challenging the administrative action the city had taken against the club, the laws authorizing that action, and ordinances the city later enacted that regulated the fully nude strip club business. The district court dismissed all sixteen claims.The Eleventh Circuit held that counts III through VI failed to state claims and that one of the remaining claims was not ripe. The court affirmed the district court's dismissal of one more of those claims because the club lacked standing to pursue it. However, the court held that the eight remaining appealed claims were ripe for the district court's review. In this case, counts XIII, XIV, and XV assert that the Ordinance was preempted by state and federal law; further factual development cannot assist in resolution of these facial challenges, which raise purely legal issues; and no institutional concerns of the court or the city render the issues unfit for review. Furthermore, the club's as-applied challenges, asserting an unconstitutional burden and tax on speech, an equal protection violation, and a contract clause violation, required no more factual development to be ripe for review. Finally, count XVI, challenging the ordinance under the Fourth Amendment, was also fit for review. Accordingly, the court affirmed in part, reversed in part, and remanded in part. View "Club Madonna, Inc. v. City of Miami Beach" on Justia Law

The Eighth Circuit reversed the district court's denial of plaintiff's motion to preliminarily enjoin enforcement of Bel-Nor's Ordinance 983, which restricts the number of signs displayed on private property. The court held that Ordinance 983 is a content based restriction that is not narrowly-tailored to achieve the compelling government interests of government safety and aesthetics. The court held that the ordinance is also facially overbroad; plaintiff was likely to succeed on his First Amendment claim; and the district court erred in denying the motion for a preliminary injunction. Accordingly, the court remanded for further proceedings. View "Willson v. City of Bel-Nor" on Justia Law

At issue in this case is whether the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) properly issued a permit to the City of Guyton to build and operate a land application system (“LAS”) that would apply treated wastewater to a tract of land through spray irrigation. Craig Barrow III challenged the issuance of that permit, arguing that, among other things, EPD issued the permit in violation of a water quality standard, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2) (b) (ii) (the “antidegradation rule”), because it failed to determine whether any resulting degradation of water quality in the State waters surrounding the proposed LAS was necessary to accommodate important economic or social development in the area. An administrative law judge rejected Barrow’s argument, finding that the rule required an antidegradation analysis only for point source discharges of pollutants and the LAS at issue was a nonpoint source discharge. The superior court affirmed the administrative ruling. The Court of Appeals reversed, concluding that the plain language of the antidegradation rule required EPD to perform the antidegradation analysis for nonpoint source discharges, and that EPD’s internal guidelines to the contrary did not warrant deference. The Georgia Supreme Court granted certiorari review in this matter to consider what level of deference courts should afford EPD's interpretation of the antidegradation rule, and whether that regulation required an antidegradation analysis for nonpint source discharges. The Court concluded the Court of Appeals was correct that the antidegradation rule was unambiguous: the text and legal context of the regulation showed that an antidegradation analysis was required only for point sources, not nonpoint sources. Therefore, the Court reversed. View "City of Guyton v. Barrow" on Justia Law

GEFT began building a digital billboard on its Westfield, Indiana property without the requisite city sign permit. The ordinance prohibits “off-premise signs” directing attention to a specific business, product, service, entertainment, or any other activity offered, sold, or conducted elsewhere and prohibits “pole signs” that are not attached to or supported by any building. GEFT did obtain a state permit but believed Westfield’s sign standards ordinance contained unconstitutional content‐based speech restrictions. GEFT stopped installing the billboard when a contract attorney working for Westfield threatened to arrest GEFT’s representatives. The district court denied GEFT’s motion for an injunction and granted Westfield’s motion. The Seventh Circuit affirmed. GEFT had challenged the constitutionality of the ordinance under the First Amendment, but its preliminary injunction motion focused solely on its due process claim. There is no constitutional procedural due process right to state‐mandated procedures; the fact that the Stop Work Notices did not comply with ordinance procedures cannot support a procedural due process claim. Neither local nor state law authorizes the arrest of anyone violating a municipal ordinance; even if the attorney is considered an employee of Westfield, GEFT has no evidence Westfield authorized those threats or could have predicted he would make them. Although the threats of arrest were inappropriate, they “are a far cry from the type of conduct recognized as conscience‐shocking” for purposes of a substantive due process claim. View "GEFT Outdoors, LLC v. Westfield" on Justia Law

The Fifth Circuit reversed the district court's dismissal of Cherry Knoll's complaint against the City of Lakeway, the city manager, and HDR Engineering in a dispute over a plat of land that Cherry Knoll had purchased in Lakeway. Cherry Knoll asserted a claim against the City under 42 U.S.C. 1983 for violating its rights to procedural due process, substantive due process, and equal protection by filing the Subdivision Plats without its consent and over its objection. The court held that these allegations satisfied the standard for official municipal policy under Pembaur v. City of Cincinnati and the district court erred in finding otherwise.The court also held that the district court erred in determining that the city manager was entitled to the protection of qualified immunity at the Rule 12(b)(6) stage. Finally, the court held that Cherry Knoll's well-pleaded factual allegations and supporting documents make plausible its claim that HDR was a "willful participant in joint action" for purposes of section 1983. Accordingly, the court remanded the matter and reinstated Cherry Knoll's state law claims. View "Cherry Knoll, LLC v. Jones" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of HomeAway.com and Airbnb Inc.'s (the Platforms) lawsuits challenging the City of Santa Monica’s Ordinance 2535, which imposes various obligations on companies that host online platforms for short-term vacation rentals. The panel held that the district court properly dismissed the Platforms' complaints for failure to state a claim and dismissed as moot the appeals from the denial of preliminary injunctive relief.The panel rejected the Platforms' claim that the ordinance was preempted by the Communications Decency Act (CDA) because it required them to monitor and remove third-party content, and held that neither express preemption nor obstacle preemption applied to the ordinance. The panel also rejected the Platforms' contention that the ordinance impermissibly infringed upon their First Amendment rights, and held that the ordinance regulated nonexpressive conduct, specifically booking transactions, not free speech. The panel held that, even assuming the ordinance would lead the Platforms to voluntarily remove some advertisements for lawful rentals, there would not be a severe limitation on the public's access to lawful advertisements, especially considering the existence of alternative channels like Craigslist. The panel reasoned that such an incidental burden was far from a substantial restriction on the freedom of speech. View "HomeAway.com v. City of Santa Monica" on Justia Law

In December 2017, the City of Atlanta enacted an ordinance to annex certain property that lies within the Fulton County Industrial District. Fulton County filed a lawsuit for declaratory and injunctive relief against the City and several of its officers, asserting that the annexation of property within the District was prohibited by a local constitutional amendment ratified in 1979. In response, the City argued that the 1979 amendment was never constitutionally adopted, that it was repealed in any event by the adoption of the Constitution of 1983, and that local laws purporting to continue the amendment are themselves unconstitutional. The trial court agreed, and it held, among other things, that the 1979 amendment was enacted in violation of the constitutional “single subject” rule. See Ga. Const. of 1976, Art. XII, Sec. I, Par. I. The County appealed, but finding no error in the trial court's judgment, the Georgia Supreme Court affirmed. View "Fulton County v. City of Atlanta" on Justia Law

The Eighth Circuit affirmed the district court's grant of summary judgment to the City in an action alleging that the City discriminated against plaintiff based on her race when it denied her applications for rezoning to open a beauty salon in a residential neighborhood. The court held that plaintiff's race discrimination claim under the Equal Protection Clause failed because plaintiff failed to produce evidence that the City's decision constituted racial discrimination and the City's interest in preserving the neighborhood's residential character from increased commercialization was supported by the record.In a class-of-one challenge to local zoning decisions, courts are not entitled to review the evidence and reverse the commission merely because a contrary result may be permissible. Instead, the court is authorized only to ascertain whether there has been a transgression upon the property owner's constitutional rights. In this case, the court held that plaintiff's class-of-one discrimination claim failed to meet this standard where she failed to identify how any purported comparators were similarly situated in all material respects. View "Mensie v. City of Little Rock" on Justia Law