Justia Zoning, Planning & Land Use Opinion Summaries

Defendant appealed convictions for conspiracy to distribute more than 50 grams of crack cocaine, causing death by use of a firearm during a drug trafficking crime, murder in the course of drug conspiracy, and possession of ammunition by a convicted felon. Defendant contended that he was entitled to acquittal on some counts by reason of double jeopardy and the sufficiency of the evidence, to resentencing on other counts, and to a new trial. The court held that there was sufficient evidence to convict defendant where a jury could reasonably conclude that defendant had inferentially instructed another individual to kill the victim; that Judge Jones' decision to exclude certain portions of the tapes of jailhouse telephone conversations was not an abuse of discretion and, if the Judge had committed an error, it was harmless; that any residual prejudice from a witness's statement was negligible because the information regarding defendant's arrest was already before the jury; that the record was insufficient to allow adjudication of defendant's ineffective assistance of counsel claim; and that the Double Jeopardy clause did not bar the government from getting "one complete opportunity" to achieve a conviction on the greater offense by retrial of that count where the jury in the first trial convicted defendant on the lesser offense and failed to reach a verdict on the greater offense. The court rejected defendant's remaining claims and affirmed the judgment.

Plaintiff sued defendants, the Bureau of Land Management (BLM), the Alaska Department of Transportation (Alaska), and the Alyeska Pipeline Service Company (Alyeska), in federal court, alleging causes of action for inverse condemnation, injunctive relief, nuisance, breach of fiduciary duties, and civil rights violations. At issue was whether the district court properly dismissed the action against the BLM and Alaska on the basis of sovereign immunity. The court held that federal sovereign immunity barred plaintiff's inverse condemnation, injunctive relief, and civil rights violations claims against the United States, but that the Federal Tort Claims Act, 25 U.S.C. 345, could provide a waiver of the government sovereign immunity for plaintiff's nuisance and breach of fiduciary duties claims. Additionally, the court held that the Eleventh Amendment barred plaintiff's action against Alaska in its entirety. Accordingly, the judgment was affirmed in part and reversed in part and remanded.

Defendant was convicted for making and subscribing to a false tax return and multiple counts of conspiracy, mail fraud, and securities fraud. Defendant appealed his sentence on the following four grounds: (1) the application of the 2001 version of the Sentencing Guidelines to his case violated the ex post facto clause; (2) the district court used improper methodology in computing the amount of loss under U.S.S.G. 2B1.1(b)(1); (3) the district court committed plain error in applying the U.S.S.G. 3B1.1(a) leader/organizer enhancement; and (4) the district court imposed a substantively unreasonable sentence. The court held that it was not plain error for the district court to apply the 2001 Sentencing Guidelines; the district court correctly calculated the amount of loss pursuant to U.S.S.G. 2B1.1; the district court did not commit plain error in applying the leader/organizer four-level enhancement; and the sentencing court imposed a substantively reasonable sentence and did not abuse its discretion. Therefore, the court affirmed the judgment of the district court.

These three closely related appeals arose out of two district court cases, each involving a different tract of land owned by the Avoyelles Parish School Board (School Board), where neither tract was accessible by public road and both shared borders with the Lake Ophelia Wildlife Refuge (Refuge), which was owned by the United States Department of Interior (Department). The School Board filed these suits against all adjoining landowners, including the Department, to fix the School Board's legal rights of passage to the respective enclosed lands. The district court fixed rights of passage that burdened Refuge lands and concluded that the Department could not impose certain desired restrictions on the School Board's actions on Refuge lands. On appeal, the court reversed both judgments in full and remanded for further proceedings.

Defendant, a former Senator in the New York State Legislature, appealed from a judgment entered in district court following his conviction of two counts of mail fraud; one count of conspiracy to commit mail fraud and federal-program fraud; and one count of conspiracy to commit mail fraud, federal-program fraud, and wire fraud. On appeal, defendant contended principally that the district court abused its discretion in denying his motion to withdraw his guilty plea, erred in calculating the imprisonment range recommended by the advisory Sentencing Guidelines, and erred in ordering restitution without proof that the persons characterized by the government as victims were directly harmed by his offense conduct. The court considered all of the parties' contentions in support of their respective positions and, except as indicted, have found them to be without merit. Accordingly, the court vacated the August 23, 2010 order and remanded for further proceedings with respect to the amount of restitution to be ordered and the judgment of conviction, as well as all other aspects of defendant's sentence, were affirmed.

Plaintiff, a Christian congregation church, sued the City of Yuma when the city prevented the church from conducting church services in a building it had bought for that purpose. At issue was the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc. The court held that the church's claims for declaratory judgment and injunction were moot where the church no longer owned the building, so the city could not be required to issue a conditional use permit for the building to the church. Nor could the church be entitled to a declaration that a code provision and statute violated federal law because they no longer affected the church. The court also held that, because the city required religious assemblies to obtain a conditional use permit, and did not require similarly situated secular membership assemblies to do the same, it violated RLUIPA's equal terms provision. Therefore, the court did not reach the church's argument that the ordinance violated the Free Exercise Clause. Accordingly, the court reversed and remanded for the district court to adjudicate the church's claims as to damages.

Subdivision residents claimed that a retention pond's problems with algae, mosquitoes, and flooding would be exacerbated by proposed expansion of the subdivision. The residents, most of whom are African-American, claimed that the town was unresponsive to their concerns, but responded to similar concerns from white residents of another subdivision. The district court rejected claims under 42 U.S.C. 1983. The Seventh Circuit affirmed, as modified. The residents did not have any evidence that a subdivision, similar except for the race of the residents, was treated differently, but relied solely on allegations. State law claims should have been dismissed, not remanded.

Petitioner-Appellant Stan Hawkins appealed a decision by the Bonneville County Board of Commissioners that granted his neighbors Dale and Mary Meyers variances to replace aging homes on two parcels of their land. The parcels in question were originally zoned as agriculture, and each contained homes built before the 1940s. People living on the Meyers' land regularly used a road over Mr. Hawkins' land for access. Bonneville County enacted its zoning ordinance in 1959, after the homes on the Meyers' land were built and occupied. The ordinance required dwellings to have frontage along a county-approved road. No easement was ever granted across Mr. Hawkins' land, nor was a public road officially designated to the Meyers' property. The Meyers filed for variances in 2007 believing that they needed to comply with the frontage requirement. At a hearing, the Commissioners found that the Meyers' did not need variances because their property had been "grandfathered in" so that the frontage requirement did not apply. However, the Commissioners granted the variance anyway. A trial court dismissed Mr. Hawkins' petition for review, holding that he did not have standing to file a petition for judicial review, and he did not show that the County had prejudiced any of his substantial rights. Upon review of the trial court record, the Supreme Court found that Mr. Hawkins had standing to pursue his petition for judicial review. However, the Court dismissed his petition because he did not show any prejudice to his substantial rights. Accordingly, the Court affirmed the trial court's order dismissing Mr. Hawkins' petition.

In 2000 the planning board approved a development and the developer began purchasing land. In 2002, the Department of Justice issued an opinion that the land could be sold without legislative action, although it was gained from the sea. Construction began; the developer invested $200 million. Because of protests, the legislature investigated and concluded that the developer lacked valid title. A 2007 Department of Justice opinion stated that the land belonged to the public domain. The governor suspended permits and froze construction. Pending a hearing, the developer filed a quiet title action. The Regulations and Permits Administration upheld suspension of construction. The Puerto Rico appeals court ordered the administration to hold an evidentiary hearing (which did not occur), but did not lift the stay on construction. The developer succeeded in its quiet title action; in 2008 construction resumed. The supreme court held that the developer's due process rights had been violated. The district court dismissed a suit under 42 U.S.C. 1983. The First Circuit affirmed. Although the plaintiff did state a procedural due process claim, the defendants are entitled to qualified immunity. The defendants were not on clear notice they they were required to hold a meaningful pre-deprivation hearing.

This action arose out of condemnation proceedings initiated by the State after the landowners and the State could not agree on the amount of compensation for a .33 acres out of a 3.5 acre tract of land fronting U.S. Highway 290 in Travis County. At issue was whether the trial court erred by only charging the jury to find the pre-taking value of the tract when there was evidence the taking did not cause damage to the remainder and whether there was any evidence the remainder suffered compensable damages. The court concluded that the trial court committed charge error by inquiring whether the landowner suffered damages to the remainder. The court also held that there was no evidence the taking caused compensable damages to the remainder and based on the jury findings, the value of the tract taken could be determined. Accordingly, the court reversed the court of appeals judgment and remanded to the trial court for rendition of judgment.