Justia Zoning, Planning & Land Use Opinion Summaries

Appellant Catherine Lakey and twelve other homeowners owned property that bordered a parcel owned by Puget Sound Energy, Inc. (PSE) on which there was an electrical substation. The homeowners sued PSE and the City of Kirkland after PSE constructed a new substation on PSE property. The homeowners sought review of the trial court's decision to exclude testimony of their expert under the "Frye" rule, and the court's ultimate decision to grant summary judgment on behalf of PSE. Upon review, the Supreme Court concluded that the trial court improperly excluded the expert's testimony under the "Frye" rule but properly excluded it under the Rules of Evidence ER702. Furthermore, the Court reversed the trial court's decision with respect to their Land Use Petition Act (LUPA) claims, finding that LUPA did not apply to the homeowners' inverse condemnation claim. The Court affirmed the trial court in all other respects. View "Lakey v. Puget Sound Energy" on Justia Law

This appeal involved a declaratory judgment action challenging the constitutionality of a municipal ordinance creating an offstreet parking district adjoining a Cabela's store. Plaintiff, a resident of the City, filed a complaint against the City and its mayor and city council members, seeking a declaration of the unconstitutionality of the ordinance. The district court found the action was barred by the general four-year statute of limitations because it was commenced more than four years after the ordinance was adopted. At issue on appeal was when the statute of limitations began to run. The Supreme Court reversed without reaching the constitutionality of the ordinance because the Court could not tell from the face of Plaintiff's complaint when Plaintiff's cause of action accrued for purposes of the running of the statute of limitations. Remanded. View "Lindner v. Kindig" on Justia Law

The issue before the Supreme Court in this case involved the interplay between rulings and requirements relating to zoning in connection with a planned development and enforcement of restrictive covenants and deed restrictions applicable to property within the development. Plaintiff obtained municipal zoning approval to reconfigure the lot lines in her two-lot farmstead parcel within the Quechee Lakes subdivision, as well as to construct a dwelling on the second, yet-to-be-developed lot. The Environmental Division affirmed the zoning board's award of the latter permit. Notwithstanding that order, in a declaratory judgment action also initiated by plaintiff, the civil division concluded that plaintiff's proposed construction violated the applicable restrictive covenants and deed restrictions. On appeal, plaintiff argued that the Environmental Division's decision resolved the dispute, that the civil division improperly considered extrinsic evidence when the disputed deed restrictions were clear on their face, that defendants' challenge to plaintiff's right to build the proposed dwelling was time-barred, and that the character of the development had changed so much that the disputed deed restrictions are no longer valid. Upon review, the Supreme Court found that Plaintiff's theory of the case was that the deed language was ambiguous; plaintiff was instrumental in framing the trial court's task as one of construing ambiguous deed language; and plaintiff led the way in introducing extrinsic evidence in support of plaintiff's own interpretation. "Given this record, plaintiff cannot now challenge the trial court's consideration of extrinsic evidence to interpret the documents." The Court concluded that plaintiff suffered no prejudice from the trial court's decision to consider the testimony about the context surrounding the disputed deed language - both that offered by plaintiff and by defendants. Finding no error in the trial court's decision to deny the motion for declaratory judgment, the Court reached no other issues plaintiff raised in her appeal and affirmed the trial court's judgment. View "Marsh Inter Vivos Trust v. McGillvray, et al." on Justia Law

In 2009, the City Council revoked a blanket special exception permitting two business establishments (the Establishments) operating in the City to operate as "entertainment establishments" serving alcoholic beverages for on-site consumption and denied their individual applications for special exceptions to continue such operations. The City later filed a complaint requesting that the Establishments be permanently enjoined from selling or serving alcohol or providing entertainment in their businesses. The Establishments filed a separate complaint and petition for appeal, asserting that the City Council's actions impaired their vested rights and that the manner in which the Council executed these actions violated their statutory notice and due process rights. The circuit court denied the relief requested by the Establishments and granted the City's request for injunctive relief. The Supreme Court affirmed, holding (1) the Establishments did not acquire any vested rights under Va. Code 15.2-2307 or Va. Code 15.2-2311(C); and (2) because the Establishments had actual notice of and actively participated in the City Council meeting, any statutory notice issues were waived and their constitutional rights were not violated. View "Norfolk 102, LLC v. City of Norfolk" on Justia Law

The owner (an Asian Indian) of 60-room hotel in a manufacturing district near a major highway in Oak Forest, a Chicago suburb, sued the city, charging racial discrimination in zoning (42 U.S.C. 1981, 1982) and that the zoning ordinance was unconstitutionally vague, based on the city’s refusal to allow it to sell the hotel for conversion to a retirement home to be owned by a church in which most of the membership is African-American. The city claimed that a retirement home would not be “highway oriented” and, after the plan was proposed, amended its ordinance so that the hotel became nonconforming, and denied a special use permit. The owner later lost the hotel in foreclosure; it is now operating as a hotel under new ownership. The district court granted the defendants summary judgment. The Seventh Circuit affirmed, noting numerous irregularities in the zoning process, but stating that the owner presented no evidence that any comparable facility, serving a white clientele, has ever been permitted by Oak Forest in a comparable district. View "Parvati Corp. v. City of Oak Forest" on Justia Law

The issue before the Supreme Court in this case arose from an administrative law court's (ALC) decision authorizing Respondent Kiawah Development Partners to construct a bulkhead and revetment on Captain Sam's Spit (the Spit) on Kiawah Island. In 1999, the Office of Coastal Resource Management (OCRM) established a baseline and building set back line twenty feet landward based on information that the Spit had accreted, and had not been subject to any significant, measurable erosion between 1959 and 1999. The movement of the baseline prompted Respondent to consider development of the Spit. On February 29, 2008, Respondent submitted an application to DHEC for a permit to construct a combination bulkhead and revetment in the area. On December 18, 2008, DHEC issued a conditional permit approving the construction of the erosion control structure for a distance of 270 feet. DHEC refused the permit request for a remaining 2,513 feet based on its concerns regarding cumulative negative impacts, including interference with natural inlet formation and possible adverse effects on wintering piping plovers. DHEC also determined that the project was contrary to the policies set forth in the Coastal Zone Management Program (CZMP). Respondent requested a final review conference by the DHEC Board, but the Board declined to hold a review conference. Respondent then requested a contested case hearing before the ALC, and challenged the denial of the construction of a bulkhead and revetment along the remaining 2,513 feet. The Coastal Conservation League (CCL) opposed the construction of any bulkhead or revetment on the Spit, and also requested a contested case hearing challenging the decision to authorize the 270 foot structure, but supporting denial of the remainder. The cases were consolidated. The ALC granted Respondent's permit to construct the bulkhead and revetment, subject to certain conditions reducing and altering its size. DHEC and CCL (collectively, Appellants) appealed the ALC's order. The Supreme Court reversed the ALC and remanded the issue in a decision published in late 2011. The Court subsequently granted Respondent's petition for rehearing, and accepted an amicus brief from the Savannah River Maritime Commission (the SRMC). The Court then withdrew its initial opinion, and issue this opinion, affirmed the decision of the ALC. "The essence of Appellants' argument is rooted in dissatisfaction with the verbiage and structure of the ALC's order, and not in actual errors of law or the absence of substantial evidence. The ALC acted within the permissible scope of its authority in modifying the existing permit to include a structure no larger than that requested by Respondent or initially reviewed by DHEC. On appeal of a contested case, we must affirm the ALC if the findings are supported by substantial evidence." View "Kiawah Development v. SCDHEC" on Justia Law

Plaintiff, seeking to offer services as a psychic and spiritual counsel in the County of Chesterfield, challenged the application of regulations enacted by the County affecting fortune tellers. The County regulated fortune tellers in four ways, one of which was applicable to all those operating a business in the County, with the others more specific to fortune tellers. The district court considered and rejected plaintiff's claims and plaintiff subsequently appealed. The court held that the First Amendment Free Speech Clause afforded some degree of protection to plaintiff's activities where the County could not establish either premise of its argument that fortune telling was inherently deceptive speech outside the scope of the First Amendment. However, the County's regulations did not abridge plaintiff's First Amendment freedom of speech where the County's regulation of plaintiff's activities fell squarely within the scope of the professional speech doctrine. The court agreed with the district court's conclusion that granting summary judgment to the County on plaintiff's constitutional and statutory religion claims was proper where plaintiff's beliefs comprised a way of life, and not a religious exercise. Finally, plaintiff's Equal Protection argument failed where the court, applying rational basis review, held that the County's regulatory scheme was rationally related to a legitimate government interest. Accordingly, the court affirmed the judgment. View "Moore-King v. County of Chesterfield, VA" on Justia Law

This case involved the City's adoption of an ordinance that proscribed "soliciting" in certain areas of the City. At issue was whether the ordinance restricted the free speech of individuals who regularly beg in the areas at issue. The court held that plaintiffs had standing to bring this First Amendment suit and that the complaint was improperly dismissed at the pleadings stage. The court found that plaintiffs have asserted a claim that the City enacted a content-based regulation, which was not the least restrictive means of furthering a compelling government interest. Accordingly, the court reversed and remanded. View "Clatterbuck v. City of Charlottesville" on Justia Law

The Nimers own land, zoned for residential use, where they operate a business that produces meat snacks. They began constructing buildings to expand the business to include butchering. They did not get zoning certificates. A state court enjoined the Nimers from putting the buildings to any use other than keeping and feeding animals, without the necessary zoning certificates. Several days after appealing the state court decision, the Nimers sued Litchfield Township in federal court under 42 U.S.C. 1983. The district court decided to abstain and dismissed without prejudice. The Sixth Circuit remanded with instructions to stay the case. While Younger abstention applies to section 1983 damages claims, a district court lacks the power to decide whether to dismiss such a damages claim. Where plaintiffs seek only legal relief (in the form of damages), relief that does not involve the district court’s equitable or discretionary powers, then the district court may not exercise its discretion to decide whether to dismiss the case; instead, the district court must stay the damages claim pending the outcome of the state court proceedings. View "Nimer v. Litchfield Twp. Bd. of Trs" on Justia Law

McGuire leased farmland in Arizona from the Colorado River Indian Tribes with approval of the Bureau of Indian Affairs. After the BIA removed a bridge that he used to access portions of the leased property, McGuire filed a Fifth Amendment claim. McGuire does not claim that removal of the bridge was itself a taking, but rather that the BIA’s alleged refusal to authorize replacement of the bridge was a taking of his property rights. The Court of Federal Claims rejected the claim. The Federal Circuit affirmed, holding that the regulatory takings claim never ripened because McGuire failed to pursue administrative remedies. Even if McGuire’s claim had ripened, he had no cognizable property interest in the bridge, which he neither possessed nor controlled because it was in a BIA right-of-way. No federal regulation gave him a property interest and he was not entitled to an easement by necessity. View "McGuire v. United States" on Justia Law