Justia Zoning, Planning & Land Use Opinion Summaries

Defendant-appellant Robert Allen appealed his conviction for depredation of government property. arguing his conviction violated both the Fifth Amendment’s Due Process Clause and separation of powers principles. Allen also appealed the district court’s restitution order of $20,300, claiming the order included restitution for uncharged conduct, and that the district court erred in applying the procedural framework of the Mandatory Victim Restitution Act (MVRA) by placing the burden on him to disprove the amount of loss contained in the presentence report and by ordering a restitution amount unsupported by evidence. After the parties completed briefing on this case, the government filed a notice of concession, acknowledging that the restitution order was erroneous and suggesting remand for resentencing on restitution. The Tenth Circuit affirmed Allen’s conviction, vacated the district court’s restitution order, and remanded the case to the district court to recalculate restitution. View "United States v. Allen" on Justia Law

The Colorado State Engineer, and the Division Engineer for Water Division 3 (the “Engineers”), brought claims against Nick Meagher for injunctive relief, civil penalties, and costs, arising from Meagher’s failure to submit Form 6.1, "Water Use Data Submittal Form," as required by Rule 6.1 of the Rules Governing the Measurement of Ground Water Diversions Located in Water Division No. 3, The Rio Grande Basin (the “Measurement Rules”). Meagher appealed the water court’s orders denying his motion to dismiss the Engineers’ claims and granting the Engineers summary judgment on those claims, contending the court erred by: (1) denying his motion to dismiss because the Engineers’ claims were mooted by his ultimate submission of Form 6.1; (2) granting summary judgment for the Engineers based on an erroneous interpretation of Rule 6.1 and section 37-92-503, C.R.S. (2019), and notwithstanding the existence of genuine issues of material fact as to his culpable mental state and the amount of the civil penalties to be imposed; (3) enjoining future violations of Rule 6.1; and (4) awarding costs and fees to the Engineers. Finding no reversible error, the Colorado Supreme Court affirmed the water court's judgment. View "Colorado v. Meagher" on Justia Law

Defendant David Vincelette appealed a the Superior Court decision finding that he committed criminal contempt by violating a January 2016 trial court order that prohibited him from interfering with the Town of Hanover’s efforts to remove debris from a right of way and Town-owned nature preserve. The Town-owned nature preserve was accessed by a deeded right of way that crossed land where defendant resided. In May 2015, the trial court found that the defendant had “placed numerous objects,” including wood pallets, abandoned vehicles, boats, and appliances on the nature preserve and on the right of way such that the right of way was “narrow[ed] . . . to such a width that it is difficult for a vehicle to access the [T]own’s property.” Defendant argued “[t]he court erred by finding that the State presented sufficient evidence that [he] intentionally violated the court’s order.” Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Vincelette" on Justia Law

Ahmed operated a business selling medical marijuana products in Livermore, which has an ordinance that prohibits marijuana dispensaries. The city issued an administrative citation and ordered him to cease operations. Undercover officers subsequently purchased a small quantity of marijuana from Ahmed after being required to sign a membership agreement and produce identification, state medical marijuana cards, and physicians’ recommendations. Police searched Ahmed’s business and seized financial records, approximately $26,000 in cash, 18 pounds of marijuana, and 37 ounces of marijuana oils, wax, and edibles. They executed search warrants for Ahmed’s bank records, which reflected several cash deposits of between $1,000 and $11,000 and several purchases for personal rather than business purposes. Ahmed was charged with possession of marijuana for sale, money laundering, and transportation of marijuana. The prosecution successfully moved to preclude Ahmed from raising a medical marijuana defense. The judge instructed the jury that “[t]he law allows local jurisdictions to enact ordinances to regulate use of its land, including the authority to provide that facilities for distribution of medical marijuana will not be permitted to operate within its borders.” The court of appeal reversed Ahmed’s conviction. The court’s ruling barring Ahmed’s medical marijuana defense violated his constitutional right to present a defense. A local government's power over land use within its borders does not extend to, in effect, nullify a statutory defense to violations of state law. View "People v. Ahmed" on Justia Law

The Bureau of Land Management (“BLM”) closed an area of Recapture Canyon to all-terrain vehicles (“ATVs”) in 2007, to prevent soil damage and the spoliation of archeological resources near the trail. Frustrated with what had been billed as a temporary closure, in 2014, certain individuals planned an ATV ride to protest the BLM’s closure order. The ride took place in May 2014. Defendant-appellant Phil Lyman, a County Commissioner for San Juan County, was a major promoter of the ride. He was charged along with Defendant-appellant Monte Wells in a misdemeanor criminal information with operating ATVs on lands closed to such use by the BLM and conspiring to do so. A jury found both men guilty of the charged offenses, for which they were sentenced them to terms of probation and brief terms of imprisonment. They were also ordered to pay restitution for the costs of assessing and repairing the damage that the protest ride caused to the land. On appeal, defendants brought a variety of challenges to their convictions and the restitution order: asking ask for a new trial because they claimed a reasonable observer allegedly would have questioned the district court judge’s impartiality (the judge did ultimately recuse before their sentencing). Furthermore, they appealed the denial of their motions to dismiss; they made a “Brady” claim stemming from the government’s failure to produce a map showing a possible public right-of-way through Recapture Canyon (which allegedly would have called into question whether the BLM’s 2007 closure order was lawful); they challenged the district court’s restitution order and the amount they were ordered to pay; and, lastly, Lyman argued he was denied constitutionally adequate counsel. The Tenth Circuit found none of defendants’ arguments were grounds for reversal of the district court’s judgment, and affirmed. View "United States v. Wells" on Justia Law

In 2011 and 2012, the government brought enforcement actions against more than 80 facilities alleged to be selling and distributing marijuana for medicinal purposes in violation of the Los Angeles Municipal Code for public nuisance, the Narcotics Abatement Law, Health & Safety Code section 11570, and the state unfair competition law, Business & Professions Code section 17200. The complaints sought permanent injunctions, abatement of the nuisances and civil penalties. The trial court denied the government’s omnibus motion for summary judgment, reasoning that claims for penalties made under each of the statutory plans are elements of the causes of action alleged. The court of appeal vacated, holding that the penalties being sought are among the remedies available rather than elements of the causes of action alleged in the several complaints. View "People v. Cahuenga's The Spot" on Justia Law

In 2003, appellant Fred Moran was an elected member of the Board of Commissioners of Haverford Township, Delaware County. The board decided to sell a 209-acre parcel of land on which the former Haverford State Mental Hospital was located. On December 19, 2005, the board held a special public meeting to address a looming revenue shortfall for the upcoming year. During the meeting, as Commissioner Andrew Lewis recalled in his trial testimony, appellant proposed accelerating the collection of real estate taxes as a way to raise revenue; particularly, he suggested having a consultant purchasing the a portion of the parcel, Goldenberg-Pohlig (GP) pre-pay $500,000 of the 2006 realty taxes on the parcel. The next day, Lewis and appellant had a phone conversation with Michael Lawry, a principal with GP. Lewis informed Lawry the board was addressing a budgetary shortfall and told him appellant had a proposal. Appellant then said to Lawry, “[C]all it extortion, call it what you will. We need $500,000, and we’ll accelerate the zoning. We’ll get you the zoning approvals you need and accelerate the process.” Lewis recalled Lawry asked whether the $500,000 was included in the $17.5 million, and appellant indicated it would be added to the purchase price. Lawry responded he was not in a position to answer but would discuss the matter with others at GP and get back in touch with appellant and Lewis. A few minutes later, Lewis called Lawry back and told him, “I want no part of that conversation. Haverford Township is not in the business of selling zoning.” Lewis testified he called appellant the next day and essentially told him the same thing. Appellant was charged with and later convicted for bribery in official and political matters. On appeal of that conviction, he challenged the sufficiency of the evidence presented against him, and also raised the question of whether bribery (as charged) was a strict liability crime. The Supreme Court concluded after review that bribery in official and political matters was not a strict liability crime, and that there was sufficient evidence to support appellant's conviction. View "Pennsylvania v. Moran" on Justia Law

Lake Holiday, a private community, is governed by the Association, which enacted restrictive covenants, rules, and regulations, including rules that concern speed limits, impose fines, provide for enforcement of rules by private security officers, and require residents to provide security officers with identification when requested to do so. Plaintiff owns property in the development and was driving within the development, when a private security officer measured plaintiff’s speed, pulled plaintiff over, took plaintiff’s license, detained plaintiff for a few minutes, and issued a citation. In his third amended complaint plaintiff sought a declaratory judgment that the practices of the security department were unlawful and that the rules and regulations were void and alleged breach of fiduciary duty and willful and wanton conduct and false imprisonment. The trial court granted defendants summary judgments. The appellate court held that the practice of recording drivers was not a violation of the eavesdropping statute, 720 ILCS 5/14-2(a)(1), nor was the security department prohibited from using radar, but that the Association was not authorized by the Vehicle Code to use amber lights on its vehicles and that stopping and detaining drivers for Association rule violations was unlawful. The Illinois Supreme Court reversed, in favor of the Association. View "Poris v. Lake Holiday Prop. Owners Ass'n" on Justia Law

Owens, a Chicago zoning inspector, was convicted of two counts of federal program bribery, 18 U.S.C. 666(a)(1)(B), for accepting two $600 bribes in exchange for issuing certificates of occupancy for four newly constructed homes. The Seventh Circuit reversed, finding that there was insufficient evidence, to establish beyond a reasonable doubt, that the issuance of the certificates of occupancy had a value of $5,000 or more as required by the statute. View "United States v. Owen" on Justia Law

Willie Keen, a former zoning official for Dixie County, Florida, appealed convictions arising from two different cases consolidated on appeal. In Case No. 09-16027, a jury convicted Keen of fraudulently obtaining low-income housing funds in violation of federal criminal law. In Case Nos. 09-16028, 10-10438, and 10-10439, a jury convicted Keen, together with former Dixie County Commissioners John Driggers and Alton Land, of federal bribery charges that stemmed from an undercover investigation of corruption in Dixie County. On appeal, Keen, Driggers, and Land challenged their convictions. The court confirmed all convictions after careful review of the record and the parties' briefs, and after having had the benefit of oral argument. However, because the court concluded that the district court erred in calculating Keen's sentence, the court remanded to the district court with a mandate to vacate the sentence and re-sentence him. View "United States v. Keen, Jr.; United States v. Driggers, et al." on Justia Law