Justia Zoning, Planning & Land Use Opinion Summaries

Appellants Charles and Agnes Messina, and Lehigh Asphalt Paving and Construction Company appealed the Commonwealth Court's affirmation of the order of the Carbon County Court of Common Pleas, which held appellants' challenge to East Penn Township Zoning Ordinance No. 1996-94 was time-barred. Charles and Agnes Messina own 114.4 acres in East Penn Township where they reside in a single-family residence. Lehigh Asphalt Paving and Construction Company is the equitable owner of the property pursuant to an option contract, and it uses a portion of the property as a quarry. In 2008, appellants filed a lawsuit in the Carbon County Court of Common Pleas asserting the Ordinance was void ab initio because East Penn Township failed to strictly adhere to procedural requirements for adopting a zoning ordinance as required by section10610(b) of the Municipalities Planning Code (MPC). Appellants specifically argued East Penn Township made changes to the zoning map on the night of the Ordinance's adoption and failed to provide notice to the public of these changes before enacting them. The trial court was unable to determine what changes had been made to the Ordinance on the night of its adoption, due to the record's vagueness, and offered to hold an evidentiary hearing on what changes had been made, but the parties declined. Consequently, the trial court held appellants failed to show a substantial change made and found the claim was statutorily time-barred. Upon review of the lower courts' records, the Supreme Court affirmed the holdings that appellants' claim was time-barred because they failed to meet their burden of proof that the township did not substantially comply with statutory procedure as required by the applicable statute. View "Messina v. East Penn Twp." on Justia Law

Arkansas Game and Fish Commission owns and manages the Donaldson Black River Wildlife Management Area, 23,000 acres with multiple hardwood species and used for recreation and hunting. In 1948, the U.S. Army Corps of Engineers constructed Clearwater Dam upstream from the Area and adopted the Water Control Manual, setting seasonally varying rates for release of water from the Dam. From 1993-2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into peak timber growing season. The Commission objected that deviations adversely impacted the Area, and opposed a proposal to make deviations part of the permanent water-release plan. After testing, the Corps abandoned the proposed Manual revision and ceased temporary deviations. The Commission sued, alleging that the deviations caused sustained flooding during growing season and that the cumulative impact of the flooding caused destruction of Area timber and substantial change in the terrain, necessitating costly reclamation. The Claims Court judgment ($5,778,757) in favor of the Commission was reversed by the Federal Circuit, which held that government-induced flooding can support a taking claim only if “permanent or inevitably recurring.” The Supreme Court reversed and remanded. Government-induced flooding of limited duration may be compensable. There is no blanket temporary-flooding exception to Takings Clause jurisprudence and no reason to treat flooding differently than other government intrusions. While the public interests are important, they are not categorically different from interests at stake in other takings cases. When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence of a compensable taking, as are the degree to which the invasion is intended or the foreseeable result of authorized government action, the character of the land, the owner’s “reasonable investment-backed expectations,” and the severity of the interference. View "AR Game & Fish Comm'n v. United States" on Justia Law

The Housing Authority of the Birmingham District ("HABD") appealed the judgment entered by the Jefferson Circuit Court which awarded Logan Properties, Inc., $350,000 on its inverse condemnation claim against HABD, as well as an additional $100,000 for litigation expenses, and awarding the intervening plaintiff Alamerica Bank $10,000 for litigation expenses. Logan Properties is a real-estate and property-management company that purchases, renovates, rents, and maintains single-family and multi-family residences. In January 2002, Logan Properties purchased "Patio Court," a 30-unit apartment complex for approximately $101,000. Logan Properties began renovating the vacant units in the complex with the plan of transferring current tenants into the newly renovated units until the entire complex was eventually renovated and leased. Logan Properties financed the purchase and rehabilitation of Patio Court by obtaining a construction loan from Alamerica Bank. In February 2003, Logan Properties obtained an adjacent parcel of property including a triplex unit with the same goal of renovating and leasing the units. Sometime in 2004, Logan Properties learned that HABD had obtained a federal grant to redevelop "Tuxedo Court," a multi- block public-housing complex located across the street from Patio Court. That project entailed the demolition of the existing Tuxedo Court housing complex and the construction of new housing in its place. After the plans for the Tuxedo Court project were made public, tenants started leaving Patio Court, telling Logan Properties that HABD was going to condemn Patio Court as part of the project. As residents in Tuxedo Court left as well, the general area deteriorated, and the vacant Patio Court apartments became the subject of theft and vandalism. Though Logan Properties had completely renovated 18 of the units, it eventually stopped renovation work, and, at trial conceded that the entire property had become unlivable. The parties tried to negotiate salvaging the area, but Patio continued to deteriorate. HABD subsequently initiated condemnation proceedings, and simultaneously filed a lis pendens notice on the properties. The probate court granted HABD's application for condemnation and appointed three disinterested commissioners to determine the compensation due Logan Properties for the condemnation of its property. The probate court failed to enter an order adopting the commissioners' report within a seven-day period required by statute and Logan Properties moved for a dismissal of the condemnation action. The probate court granted that motion and dismissed the action. Logan Properties then initiated an inverse-condemnation action against HABD, alleging that HABD had taken or injured property owned by Logan Properties. Upon review of the trial court record, the Supreme Court concluded that because no evidence was presented at trial indicating that HABD was responsible for a direct physical injury upon Logan Properties' property, that judgment was reversed and the cause remanded for the trial court to enter a judgment as a matter of law in favor of HABD. View "Housing Authority of the Birmingham District v. Logan Properties, Inc." on Justia Law

Helena Sand and Gravel, Inc. (HSG) challenged Lewis and Clark County's decision to adopt a citizen-initiated proposal to configure a zoning district that favored residential uses and prohibited mining. The district court entered summary judgment in favor of the County, concluding that the County had properly adopted the zoning pattern and regulations creating the district, and the County's zoning decision did not constitute a taking of HSG's property. The Supreme Court affirmed in part and remanded, holding (1) the County's decision to adopt the zoning pattern and regulations for the district was not clearly unreasonable or an abuse of discretion; (2) the County's adoption of zoning regulations prohibiting sand and gravel mining did not constitute illegal reverse spot zoning; and (3) because HSG had a constitutionally protected property interest in property within the district, the Court granted HSG's request for remand to the district court for the parties to brief the Penn Central takings test, narrowly limited to whether the County's adoption of the zoning pattern and regulations in the district constituted a taking of HSG's real property interest without just compensation. View "Helena Sand & Gravel, Inc. v. Planning & Zoning Comm'n" on Justia Law

Youngstown Belt Railway Company entered into a purchase agreement with Total Waste Logistics of Girard for the purchase of Mosier Yard, which the railway owned. The sale was never consummated, and later the city of Girard commenced an appropriation action to appropriate a portion of Mosier Yard. The trial court held that the city's appropriation proceedings were preempted by the Interstate Commerce Commission Termination Act (ICCTA). On remand, the trial court held that it would be inappropriate to consider the railway's potential sale to Total Waste in the preemption analysis but determined that the railway's use of a portion of the appropriated land for storage caused the city's action to be preempted by the ICCTA. The appellate court affirmed, although on different grounds. The Supreme Court reversed, holding that the city's proposed eminent-domain action against the undeveloped portion of the railway's property, which did not contain any tracks or rights-of-way and did not have any concrete projected use that would constitute rail transportation by a rail carrier, was not preempted under the ICCTA. View "Girard v. Youngstown Belt Ry. Co." on Justia Law

Appellant operated a sexually oriented business. Three weeks after the store's opening, the City Council enacted an ordinance establishing licensing requirements and regulations for sexually oriented businesses. Once a three-year grace period for nonconforming businesses already in existence at the time of the ordinance's passage ended, Appellant applied for and received a single six-month hardship extension. After the extension expired and Appellant did not apply for another extension, the City filed this action to enjoin the continuing operation of the store. Appellant counterclaimed, alleging that the ordinance was invalid, it violated the Arkansas Civil Rights Act, and it was unconstitutional. The circuit court found that the doctrines of waiver and estoppel prohibited Appellant from challenging the ordinance because it sought and was granted a hardship license and because it had received the benefit of the ordinance's amortization period. The Supreme Court reversed and remanded, holding that the acceptance-of-benefits rule of estoppel did not apply in this case because the passage of the ordinance provided no benefit to the store, and Appellant's acceptance of the temporary hardship extension was not voluntary in any real sense. View "40 Retail Corp. v. City of Clarksville" on Justia Law

At issue in this case was the lawfulness of a portion of the City of Portland's Willamette River Greenway Plan that regulates uses of industrial and other urban land along a portion of the Willamette River known as the "North Reach." Specifically, the issue was whether the City of Portland (city) had authority to regulate development within the North Reach. Petitioners represented various industrial interests within the affected area of the city's plan. They contended that the law permitted the city to regulate only "intensification" or "changes" to existing uses and otherwise does not permit the regulation of existing industrial or other urban uses or other changes to such uses within the North Reach. The Land Use Board of Appeals rejected that argument, and the Court of Appeals affirmed. Upon review, the Supreme Court likewise rejected petitioners' argument and affirmed the decision of the Court of Appeals. View "Gunderson, LLC v. City of Portland" on Justia Law

This was the latest in a series of opinions by the Court of Appeals involving the constitutional provision and the implementing legislation authorizing a limited number of slot machines at specified Maryland facilities, including facilities in the area of Anne Arundel County (County). A County zoning ordinance authorized slot machines in certain areas of the County. The circuit court determined that the ordinance was not subject to referendum under the County charter. On appeal, the Court of Appeals (1) held the circuit court's judgment was appealable, as (i) the Legislature no no intention of applying the non-appealability principle of Md. Code Ann. Cts. & Jud. Proc. 12-302(a) to cases under the Election Article, and (ii) where the Election Article authorizes judicial review but is silent regarding an appeal, Md. Code Ann. Cts. & Jud. Proc.12-301 authorizes an appeal; and (2) reversed the circuit court's judgment and remanded with instructions to order that the ordinance be placed on the ballot at the general election in accordance with the referendum provisions of the County charter, holding that the ordinance was simply a local ordinance re-zoning an area, and as such, it was not exempt from a referendum. View "Citizens Against Slots At The Mall v. PPE Casino Resorts Md., LLC" on Justia Law

In 1996, CP sued the United States, claiming that CP owned minerals underlying Louisiana property (Groups A, B, and C mineral servitudes), and that between 1943 and 1978, the government imposed a drilling and operations moratorium while the surface was used for bombing and artillery practice. It alleged that starting in 1992, the government, claiming ownership, has granted oil and gas leases covering the property. The district court granted the government summary judgment with regard to Groups A and B because the prescription period was not suspended by the moratoriums. Concerning Group C, the court granted CP summary judgment, finding that servitude imprescriptible. The Fifth Circuit affirmed; certiorari was denied. In1998, CP filed another complaint in the Claims Court, alleging taking without just compensation, as an alternative to its district court action. In 2004, the Claims Court dismissed the Groups A and B claims and limited the C claim to post-1992 action. The court found that the government’s issuance of leases after 1997 constituted a compensable temporary taking, but subsequently dismissed, finding that the facts alleged in the district court complaint were nearly identical. The complaints were “for or in respect to” the same claim and 28 U.S.C. 1500 precluded jurisdiction. The Federal Circuit affirmed. View "Cent. Pines Land Co., LLC v. United States" on Justia Law

Under section 6(6) of Ballot Measure 49 (2007), certain "owners" of property may file a claim to establish up to three home-site approvals, notwithstanding existing land use restrictions that would otherwise preclude such development. At issue in this case was the meaning of the term "owner" as it is used in that section. Specifically, the issue was whether the term includes a seller of property under a land sale contract who retains legal title to the property. The Court of Appeals concluded that, as the term is used in Ballot Measure 49, the term "owner" means only the purchaser of property under a land sale contract and does not include the seller of the property who retains title. Upon review, the Supreme Court reversed the Court of Appeals: "In short, there is no persuasive evidence that the voters intended the three categories of owners under ORS 195.300(18) to be mutually exclusive. To the contrary, the phrasing of that definition, along with other definitions in the same section, and other related provisions of the law make clear that those definitional components were intended to be inclusive." View "Burke v. Oregon" on Justia Law