Justia Zoning, Planning & Land Use Opinion Summaries

In consolidated appeals, the issue presented for the Pennsylvania Supreme Court's review centered on the Commonwealth Court’s holding that, to be held liable for damages under Pennsylvania’s inverse condemnation statute, an entity had to be "clothed with the power of eminent domain" to the property at issue. In 2009, Appellee, UGI Storage Company filed an application with the Federal Energy Regulatory Commission (the “Commission” or “FERC”), seeking a certificate of public convenience and necessity to enable it to acquire and operate certain natural gas facilities. Appellee wished to acquire and operate underground natural gas storage facilities, which the company referred to as the Meeker storage field. Appellee also sought to include within the certificated facilities a 2,980-acre proposed "buffer zone." FERC ultimately granted the application for Appellee to acquire and assume the operation of the Meeker storage field, but denied Appellee’s request to certificate the buffer zone. Appellants petitioned for the appointment of a board of viewers to assess damages for an alleged de facto condemnation of their property, alleging that though their properties had been excluded by FERC from the certificated buffer zone, they interpreted Appellee’s response to the Commission’s order as signaling its intention to apply for additional certifications to obtain property rights relative to the entire buffer zone. The common pleas court initially found that a de facto taking had occurred and appointed a board of viewers to assess damages. Appellee lodged preliminary objections asserting Appellants’ petition was insufficient to support a de facto taking claim. The Supreme Court reversed the Commonwealth Court: "we do not presently discern a constitutional requirement that a quasi-public entity alleged to have invoked governmental power to deprive landowners of the use and enjoyment of their property for a public purpose must be invested with a power of eminent domain in order to be held to account for a de facto condemnation. ... a public or quasi-public entity need not possess a property-specific power of eminent domain in order to implicate inverse condemnation principles." The case was remanded for the Commonwealth Court to address Appellants’ challenge to the common pleas court’s alternative disposition (based upon the landowners’ purported off-the-record waiver of any entitlement to an evidentiary hearing), which had been obviated by the intermediate court’s initial remand decision and that court’s ensuing affirmance of the re-dismissal of Appellants’ petitions. View "Albrecht, et al. v. UGI Storage Co. et al." on Justia Law

The Pennsylvania Supreme Court granted the Pennsylvania Department of Transportation (“PennDOT”)’s petition seeking review of a Commonwealth Court holding that a de facto taking of an unmined coal estate, owned by Penn Pocahontas and leased to PBS Coals, Inc. (collectively “the Coal Companies”), occurred under the Eminent Domain Code, 26 Pa.C.S. sections 101-1106 (“Code”), when PennDOT’s construction of Highway 219 on an adjoining parcel destroyed options for constructing rights-of-ways to the coal estate’s surface. In reaching that conclusion, the Commonwealth Court held that the feasibility of mining the coal, as measured by the probability of obtaining a legally required permit from the Department of Environmental Protection (“DEP”), was relevant only to damages. The Supreme Court reversed the Commonwealth Court’s decision, agreeing with PennDOT that the legality of extracting the coal went directly to the trial court’s duty to determine whether a taking occurred. Furthermore, the Court held the Commonwealth Court erred by failing to remand the case for consideration of whether consequential damages are available to the Coal Companies. The matter was remanded to the Commonwealth Court with instructions to remand to the trial court with respect to the Coal Companies’ consequential damages claim. View "PBS Coals, et al v. PennDOT" on Justia Law

Therese and Timothy Holmes appealed a Vermont Public Utility Commission (PUC) decision granting Acorn Energy Solar 2 a certificate of public good (CPG) to build and operate a solar net-metering system. The Holmeses argued the PUC erred in concluding that: (1) Acorn’s application was complete under the PUC Rules; (2) several proposed changes constituted minor amendments; (3) the project would be located on a preferred site; (4) the project would comply with setback requirements; and (5) the project would not have an undue adverse effect on aesthetics, orderly development, wetlands, air pollution, greenhouse gases, and traffic. Finding no reversible error, the Vermont Supreme Court affirmed the PUC's decision. View "In re Petition of Acorn Energy Solar 2, LLC (Therese & Timothy Holmes, Appellants)" on Justia Law

Petitioners and respondents owned real property in McClain County, Oklahoma, containing and abutting Colbert Lake (the Lake). Petitioners also owned real property containing Colbert Creek, which was the sole source of water that fed the Lake. Respondents sought a permit from the Oklahoma Water Resources Board (OWRB), to sell water from the Lake to oil companies for use in fracking operations. The only notice that the OWRB provided to petitioners of the respondents' permit application was by publication in newspapers. The permits were issued, and petitioners subsequently filed suit at the district court, arguing that they were not given proper and sufficient notice of the permit proceedings. The district court dismissed the lawsuit in a certified interlocutory order, and petitioners appealed. The Oklahoma Supreme Court granted certiorari to address the proper, constitutionally required notice to landowners in such proceedings. The Court held that the notice given was inadequate, therefore judgment was reversed and the matter remanded for for further proceedings. View "Purcell v. Parker" on Justia Law

The Board of University and School Lands of the State of North Dakota, the State Engineer, and Statoil Oil & Gas LP appeal from a judgment determining William Wilkinson and the other plaintiffs owned mineral interests in certain North Dakota land. Although the judgment was not appealable because it did not dispose of all claims against all parties, the North Dakota Supreme Court exercised its supervisory jurisdiction to review the summary judgment. The Court concluded the district court did not err in concluding N.D.C.C. ch. 61-33.1 applied and the disputed mineral interests were above the ordinary high water mark of the historical Missouri riverbed channel, but the court erred in quieting title and failing to comply with the statutory process. Therefore, the Court affirmed in part, reversed in part, and remanded for further proceedings. View "Wilkinson, et al. v. Board of University and School Lands of the State of N.D." on Justia Law

Plaintiff-appellee Natural Gas Pipeline Company of America LLC (NGPL) operated two interstate natural gas pipelines that crossed property owned by Defendant-appellant Foster OK Resources LP (Foster). NGPL brought a condemnation action seeking four separate easements to have consistent access to operate and maintain the pipelines and to clear title issues involving the pipelines. Foster challenged NGPL's exercise of eminent domain and whether NGPL's taking met the legal standard of necessity. After review, the Oklahoma Supreme Court held NGPL could not contract away its right of eminent domain and was not prevented from seeking the easements at issue to operate and maintain the pipelines. NGPL's condemnation of Foster's property was for public use and met the legal standard of necessity. Furthermore, the Court held the issue of the necessity of a survey in computing just compensation owed to Foster was premature and could not be determined at this time. View "Natural Gas Pipeline Co. v. Foster OK Resources, LP" on Justia Law

In this challenge to a zoning ordinance prohibiting industrial mineral operations within Winona County the Supreme Court affirmed the decision of the court of appeals affirming the order of the district granting summary judgment to the County on all of Minnesota Sands, LLC's claims, holding that the ordinance was constitutional.Minnesota Sands, a mining company, sought to mine and process silica sand in the County. Minnesota Sands sued the County requesting declaratory, injunctive, and monetary relief. The district court granted summary judgment to the County. The court of appeals affirmed, concluding that the ordinance did not violate the dormant Commerce Clause or work an unconstitutional taking of Minnesota Sands' property interests. The Supreme Court affirmed, holding (1) Minnesota Sands had standing to bring this case; (2) the County's ordinance did not violate the dormant Commerce Clause on its face, in purpose or in effect; and (3) Minnesota Sands' takings claims failed because the property interests it claimed were taken by the County had not yet accrued. View "Minnesota Sands, LLC v. County of Winona, Minnesota" on Justia Law

In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation.The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.” View "West v. Charter Communications, Inc." on Justia Law

At issue was whether the rule of capture immunized an energy developer from liability in trespass, where the developer used hydraulic fracturing on the property it owned or leased, and such activities allowed it to obtain oil or gas that migrated from beneath the surface of another person’s land. Plaintiffs’ property was adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction. Plaintiffs alleged that Southwestern “has and continues to extract natural gas from under the land of the Plaintiffs,” and that such extraction was “willful[], unlawful[], outrageous[] and in complete conscious disregard of the rights and title of the Plaintiffs in said land and the natural gas thereunder.” Southwestern alleged that Plaintiffs’ claims were barred by, inter alia, the rule of capture, and sought declaratory relief confirming its immunity from liability. The court of common pleas court granted Southwestern’s motion for summary judgment, denied Plaintiffs’ motion for partial summary judgment, and denied the motion to compel as moot. The court agreed with Southwestern’s position that the rule of capture applied in the circumstances and, as such, Plaintiffs could not recover under theories of trespass or conversion even if some of the gas harvested by Southwestern had drained from under Plaintiffs’ property. The Superior Court reversed, holding that hydraulic fracturing could give rise to liability in trespass, particularly if subsurface fractures ... crossed boundary lines. The Pennsylvania Supreme Court rejected the concept that the rule of capture was inapplicable to drilling and hydraulic fracturing that occurred entirely within the developer’s property solely because drainage was the direct or indirect result of hydraulic fracturing. Nevertheless, the Supreme Court found the Superior Court panel’s opinion "to suffer from multiple infirmities," reversed and remanded with directions. View "Briggs, et al v. Southwestern Energy" on Justia Law

In this case involving a dispute between Portland Pipe Line Corporation (PPLC) and the City of South Portland (the City) the First Circuit certified three questions to the Maine Law Court because this clash raised important questions of state law preemption doctrine and statutory interpretation that are unresolved and may prove dispositive.The parties to this dispute were PPLC, a Maine corporation engaged in the international transportation of oil, and the City, which enacted a municipal zoning ordinance prohibiting the bulk loading of crude oil onto vessels in the City's harbor. The ordinance prevented PPLC from using its infrastructure to transport oil from Montreal to South Portland via underground pipelines. PPLC appealed the district court's dismissal of its claims, arguing that the ordinance was preempted by Maine's Coastal Conveyance Act and was in conflict with federal constitutional law. The First Circuit declined to address the federal questions, concluding that the case lacked controlling precedent and presented difficult legal issues that warranted certification to the Law Court. View "Portland Pipe Line Corp. v. City of South Portland" on Justia Law