Justia Zoning, Planning & Land Use Opinion Summaries

The Witham Family Partnership challenged two decisions of the Town of Bar Harbor's Zoning Board of Appeals (Board) in connection with North South Corporation's application to construct a hotel. The Partnership attended two public hearings before the Board on North South's appeal of the planning board's denial of its application. The Board subsequently reversed the planning board's denial. The Partnership also filed its own appeal challenging the portion of the planning board's decision finding that North South's proposed project conformed to certain criteria for obtaining a building permit. The Board affirmed the planning board's decision. The Partnership then filed a Me. R. Civ. P. 80B complaint challenging the Board's decisions in both North South's appeal and in the Partnership's appeal. The superior court dismissed the complaint on grounds that the Partnership lacked standing. The Supreme Court reversed, holding that the Partnership had standing to challenge the Board's decision in both appeals in a Rule 80B review of those decisions.

This case involved the adoption and implementation of a redevelopment plan in South Wilmington known as the South Walnut Street Urban Renewal Plan (SWURP). Plaintiffs, property owners in the SWURP area, sought a permanent injunction and declaratory judgment finding that the SWURP and ordinances adopting the 2007 and 2009 amendments to the SWURP were legally invalid, and prohibiting their application. The City of Wilmington argued as a preliminary matter that there was no justiciable controversy, and moreover, even if there was a justiciable controversy, the SWURP was amended in 2009 and did not impose unlawful overlay zoning. The court concluded that, assuming that a justiciable controversy existed, the SWURP did not impose unlawful overlay zoning. Therefore, summary judgment was granted in favor of the city and plaintiffs' claims were dismissed without prejudice.

Petitioners Curtis and Deborah Avery appealed a superior court order that dismissed their petition for a declaratory judgment for pertaining to a lot size waiver that was granted to Respondent Concord School District (District) by Respondent New Hampshire Department of Education (DOE). In 2009, the School Board for the District voted to demolish and rebuild Kimball School. The lot size for the proposed new building did not meet the minimum lot size requirements in the state Administrative Rules. As a result, the District applied for a waiver of the lot size requirements with the DOE. Petitioners owned rental property adjacent to the school lot. In 2010, they sought a declaratory judgment that the waiver was "invalid and void." Upon review, the Supreme Court found that the trial court's ruling that Petitioners lacked standing to challenge the waiver was correct. The Court affirmed the trial court's decision to dismiss Petitioner's case.

The Board of County Commissioners of Wabaunsee County amended its zoning regulations to permit small wind energy conversion systems. The regulations, however, prohibited the placement of commercial wind energy conversion systems in the county. Plaintiffs and Intervenors, landowners and owners of wind rights in the county, sued the Board, seeking a judicial declaration that the Board's action be null and void. The district court granted the Board's various dispositive motions. The Supreme Court affirmed in part and reversed in part, holding, inter alia, that (1) the district court did not err by disposing of a Takings Clause claim as a matter of law, and because there was no taking, the court did not err in also disposing of Intervenors' related takings-based claim under 42 U.S.C. 1983 and their claim for inverse condemnation; (2) the district court did not err in dismissing a Commerce Clause claim as a matter of law, but a claim alleging the Board's decision placed incidental burdens on interstate commerce that outweighed the benefits was remanded for analysis under Pike v. Bruce Church; and (3) because Intervenors also made a burden-based claim under the Commerce Clause in their 42 U.S.C. 1983 contention, that specific claim was also remanded.

Plaintiff brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the Zoning Board of Appeals' denial of his application for a certificate of occupancy (CO) for his newly-built home. Specifically, plaintiff asserted that the Village Zoning law, Chapter IX, Section E was void for vagueness and that the Village Defendants violated his substantive due process rights by denying him a CO. The court held that Section E was unconstitutionally vague as applied to plaintiff's property because it provided inadequate notice of the elevation point on River Road from which plaintiff should measure the height of his house to determine compliance, and because it authorized arbitrary and discriminatory enforcement. The court also held that the ordinance's constitutionality was not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of plaintiff's house was in compliance with Section E's restrictions. Therefore, the court reversed the district court's grant of summary judgment in favor of the Village Defendants on plaintiff's void-for-vagueness claim and directed that court to enter summary judgment in favor of plaintiff on this claim. The court also vacated the grant of summary judgment in favor of the Village Defendants on plaintiff's substantive due process claim and remanded for further proceedings.

In this Section 1983 case, four homeless plaintiffs challenged the constitutionality of two ordinances in the City Code of St. Petersburg, Florida and of the city's enforcement of the ordinances. The trespass ordinance at issue authorized certain city agents to issue a temporary trespass warning for specific city land on which the agent determined that the warning recipient had violated city or state law. The storage ordinance at issue prohibited storage of personal property on city land such as parks and rights-of-way. The district court dismissed all of plaintiffs claims. The court affirmed the district court's rulings, except the court vacated part of the district court's ruling about the trespass ordinance. Plaintiffs have stated claims on the issues of procedural due process under the United States Constitution and on their right to intrastate travel under the Florida Constitution.

This case stemmed from FEMA's determination that the Holy Cross School was eligible for public assistance funds to construct a new school campus on the site of Cabrini Church and Cabrini School in Gentilly to replace its old campus six miles away in the Lower Ninth Ward. Friends of Cabrini Church filed a complaint against FEMA, alleging that, inter alia, the section 106 review process, which defined the "area of potential effects" (APE), C.F.R. 800.4(a), 800.16(d), was deficient. On appeal, Friends of Cabrini Church subsequently challenged the district court's grant of summary judgment in favor of FEMA. The court held that because Friends of Cabrini Church lacked standing to bring its claims, the court vacated the judgment of the district court and remanded the case with instructions to dismiss for lack of standing.

This case arose when the Port of Los Angeles prohibited motor carriers from operating drayage trucks on port property unless the motor carriers entered into concession agreements with the port. The concession agreements set forth fourteen specific requirements covering, among other things, truck driver employment, truck maintenance, parking, and port security. The agreements were adopted as part of the port's "Clean Truck Program," adopted in response to community opposition that had successfully stymied port growth. Plaintiff challenged the concession agreements, arguing that they were preempted by the Federal Aviation Administration Authorization Act (FAAA Act), 49 U.S.C. 14501 et seq. The court held that the district court meticulously identified and applied the governing law. The court affirmed the district court's holding that the financial capability, maintenance, off-street parking, and placard provisions were not preempted. The court reversed the district court's conclusion that the employee-driver provision was saved from preemption by the market participant doctrine, and remanded for further proceedings.

At issue in this appeal was a zoning ordinance adopted by the City of Sioux Falls requiring that an on-sale alcoholic beverage business seeking to place video lottery machines in the establishment must meet certain location requirements and apply for a conditional use permit. Plaintiff Rick Law, who conditionally held a liquor license, brought a declaratory action against the City to determine the constitutionality of the ordinance. The South Dakota Lottery intervened in the action. The circuit court ruled that the City exceeded its authority when it enacted the ordinance, concluding that South Dakota's constitutional and statutory scheme indicated that the State intended to fully occupy the field of video lottery to the exclusion of municipal regulation. The Supreme Court affirmed, holding that (1) municipalities do not have the freedom or power to regulate video lottery as the South Dakota Constitution specifically reserves that right to the State and (2) existing legislation does not give municipalities power to license video lottery establishments or otherwise control the location of such establishments.

The Supreme Court accepted the certified question from the United States District Court for the District of South Carolina on whether the South Carolina Solid Waste Policy and Management Act, (SWPMA) preempted Horry County Ordinance 02-09 entitled "An Ordinance Regulating the County-Wide Collection and Disposal of Solid Waste Generated within Horry County and for the Prohibition of the Disposal of Solid Waste Materials in any Manner Except as Set Forth Herein; and Providing Penalties for Violation Thereof."  Plaintiffs Sandlands C&D, LLC (Sandlands) and Express Disposal Service, LLC (EDS) are related, privately-owned South Carolina companies.  Sandlands owned and operated a landfill in Marion County, approximately two miles across the Horry County border, and EDS hauls waste originating in South Carolina and North Carolina to Sandlands' landfill.  DHEC granted Sandlands a permit to accept construction and demolition (C & D) waste at the Marion County site.  Prior to the passage of Horry County Ordinance 02-09, Sandlands received C & D waste originating in Horry County and hauled by EDS, accounting for a large portion of the waste processed at its landfill. Upon review of the applicable legal authority, the Supreme Court responded in the negative: the county ordinance was not preempted by the SWPMA.