Justia Zoning, Planning & Land Use Opinion Summaries

In 2018, faced with the “impending loss of the Raiders to Las Vegas and the Golden State Warriors to San Francisco,” the Legislature sought to facilitate “a new baseball park” at the Howard Terminal site in Oakland. The Project would create many high-wage, highly skilled jobs and present “an unprecedented opportunity to invest in new and improved transit and transportation infrastructure and implement sustainability measures.”Assembly Bill 734 is special legislation applicable solely to the Project. Pursuant to Public Resources Code section 21168.6.7, the baseball park and any nonresidential construction in the Project must achieve LEED gold certification, and residential construction must achieve either LEED gold certification or “the comparable GreenPoint rating, including meeting sustainability standards for access to quality transit.” The project must also achieve greenhouse gas neutrality, reduce by 20 percent the collective vehicle trips, and offer a “comprehensive package of community benefits.” Section 21168.6.7 requires certification by the Governor that the Project meets all those criteria to qualify for expedited administrative and judicial review under the California Environmental Quality Act (CEQA). Objectors argued that the Governor’s authority to certify the project expired on January 1, 2020. The trial court and court of appeal upheld the Governor’s ongoing certification authority. On February 11, 2021, the Governor certified the Howard Terminal Project for expedited CEQA review. View "Pacific Merchant Shipping Association v. Newsom" on Justia Law

In 2008, Zito purchased a beachfront house and lot on Nags Head (a barrier island). In 2016, the house burned down. The lot is governed by North Carolina’s Coastal Area Management Act (CAMA): buildings with less than 5,000 square feet must be set back at least 60 feet or 30 times the local rate of erosion, whichever is farther, from the vegetation line. Buildings of less than 2,000 square feet built before June 1979 fall under a grandfather provision, requiring a setback of only 60 feet from the vegetation line. The Zito property qualifies for the grandfather provision but is set back only 12 feet from the vegetation line. In 2018, the coastline by the property eroded at an average rate of six feet per year. Experts indicate that coastal erosion and rising sea levels could cause the property to be underwater by 2024. The permit officer denied Zito’s application to rebuild The Coastal Resources Commission denied a variance, informing Zito of the right to appeal in state superior court.Zito filed suit in federal court, arguing that CAMA’s restrictions amounted to an unconstitutional taking. The Fourth Circuit affirmed the dismissal of the suit. The Commission qualifies as an arm of the state subject to the protection of sovereign immunity; the Eleventh Amendment bars Fifth Amendment taking claims against states in federal court where the state’s courts remain open to adjudicate such claims. View "Zito v. North Carolina Coastal Resources Commission" on Justia Law

The issue in this case relates to Captain Sam’s Spit on Kiawah Island, South Carolina. Twice before, the Administrative Law Court (ALC), over the objections of the South Carolina Department of Health and Environmental Control (DHEC), granted permits for the construction of an extremely large erosion control device in a critical area. Both times, the South Carolina Supreme Court found the ALC erred. In this third appeal, the Coastal Conservation League raised numerous issues with respect to the approval of another “gargantuan structure” designed to combat the erosive forces carving into the sandy river shoreline, especially along its narrowest point called the "neck," in order to allow a developer to construct a road to facilitate development of fifty houses. DHEC, reversing its prior stance, issued four permits to construct the steel wall, which the ALC upheld. The Supreme Court found the ALC erred in three respects: (1) in accepting DHEC's narrow, formulaic interpretation of whether a permit that indisputably impacts a critical area warrants the more stringent review normally accorded to such structures; (2) in relying on the protection of Beachwalker Park to justify the construction of the entire wall; and (3) in determining the public will benefit from the wall based on purely economic reasons. Accordingly, judgment was reversed. View "SC Coastal Conservation League v. SCDHEC" on Justia Law

Lakeshore Camping, Gary Medler, and Shorewood Association petitioned for contested case hearings before an administrative-law judge (ALJ), to challenge permits and a special exception granted by the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes, and Energy (EGLE)) to Dune Ridge SA LP. In February 2014, Dune Ridge, a real estate developer, had purchased a 130-acre plot of land along the shore of Lake Michigan located in a critical dune area and therefore was subject to certain regulations under the sand dunes protection and management act (SDPMA). EGLE issued the requisite permits and special exceptions needed for development of the property to Dune Ridge, and in October 2014, Lakeshore Camping, Medler, and Shorewood filed their petitions under MCL 324.35305(1). Around September 2015, other individuals moved to intervene in the case as aggrieved adjacent property owners. The ALJ also allowed Lakeshore Group, an unincorporated nonprofit association, to intervene after determining that it had “representational standing” through Charles Zolper, one of its members. The ALJ denied intervention to some of these parties and ultimately dismissed the matter, concluding that the remaining petitioners and intervenors lacked standing. Lakeshore Camping and other petitioners were eventually dismissed from the case, leaving Jane Underwood, Zolper, and Lakeshore Group as the sole remaining petitioners. Dune Ridge then moved for partial summary disposition, seeking to dismiss Underwood because she no longer owned property immediately adjacent to Dune Ridge’s property. In July 2016, the ALJ granted the motion. In September 2016, Dune Ridge sold 15 acres of its property, including the land immediately adjacent to Zolper’s property, to Vine Street Cottages, LLC. Dune Ridge then moved for summary disposition as to Zolper, and the ALJ dismissed Zolper and Lakeshore Group, finding that they no longer had standing because Zolper was no longer an immediately adjacent property owner. Underwood, Zolper, Lakeshore Group, and others appealed the ALJ’s decision to the circuit court. The issue this case presented for the Michigan Supreme Court’s review centered on whether the dismissed petitioners lost their eligibility for a contested hearing based on the facts presented. To this, the Supreme Court answered “no:” because the statute provides no means to deprive an eligible petitioner of a contested hearing, petitioners were entitled to a contested case hearing. Judgment was reversed and remanded to the administrative tribunal for a formal contested case hearing. View "Lakeshore Group v. Dept. of Enviro. Quality" on Justia Law

SSE has long opposed the expansion of Syar’s aggregate operation. Syar filed an application for expansion in May 2008. After more than seven years of environmental review and numerous hearings, the County Planning Commission, in October 2015, certified the final Environmental Impact Report (EIR) and approved a modified project and a permit for an expansion half the size originally sought and subject to more than 100 pages of conditions and mitigation measures. The County Board of Supervisions conducted nearly a year of additional environmental review and hearings, and in a 109-page decision, rejected SSE’s appeals, certified the EIR, and approved a further modified project and permit.The court of appeal affirmed the trial court’s rejection of SSE’s petition for review. The court rejected multiple challenges to the EIR, noting that the ultimate inquiry under the California Environmental Quality Act (CEQA) is whether the EIR includes enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project. The court found that consistency with the general plan was discussed at length throughout the project review process. View "Stop Syar Expansion v. County of Napa" on Justia Law

At issue in this case was whether the Bureau of Land Management (BLM) was required to conduct an environmental analysis under the National Environmental Policy Act (NEPA) when it re-opened an area that it had temporarily closed to off-highway vehicles (OHVs) pursuant to its authority under 43 C.F.R. section 8341.2(a). In 2006, the BLM closed a portion of the Factory Butte area in Utah to OHVs due to their adverse effects on the endangered Wright fishhook cactus. The BLM lifted that closure order in 2019 and re-opened the area to OHV use, but did not perform any kind of environmental analysis under NEPA before doing so. Plaintiffs filed suit pursuant to 28 U.S.C. 1331, alleging violations of NEPA and the Administrative Procedure Act (APA). The district court disagreed with Plaintiffs' contention and dismissed their complaint for failure to state a claim upon which relief could be granted. Finding no reversible error, the Tenth Circuit affirmed the district court. View "Natural Resources Defense v. McCarthy" on Justia Law

Sweeney bought the 39-acre Point Buckler Site, located in Suisun Marsh in the San Francisco Bay's Grizzly Bay, which apparently was previously operated as a managed wetland for duck hunting. Sweeney undertook unpermitted construction and development, including restoring an exterior levee and opening a private recreational area for kiteboarding. The San Francisco Bay Conservation and Development Commission (BCDC) inspected the Site, noting the unauthorized work and multiple violations; the levee construction work had removed tidal flow to the Site’s interior and dried out tidal marsh areas. BCDC concluded the Site never functioned as a managed wetland and had long reverted to a tidal marsh. Sweeney was directed to stop work and informed that a marsh development permit was required to develop the Site; BCDC indicated that any work that could not be retroactively approved would need to be removed.The Regional Water Quality Control Board commenced separate proceedings, citing violations of the federal Clean Water Act and the California Water Code. BCDC staff observed that additional work had been performed since the earlier inspection. The Board issued a cleanup and abatement order (CAO), imposed administrative civil liabilities and required payment of approximately $2.8 million in penalties. The superior court set aside those orders.The court of appeal reversed. In issuing the CAO, the Board did not violate the requirements of Water Code section 13627; the CAO satisfied the Porter-Cologne Water Quality Control Act criteria for enforcement actions and did not conflict with the Suisun Marsh Preservation Act. The court rejected arguments that the definition of waste cannot include earthen material, that the activities did not constitute “discharges,” and that any discharges were not into “waters of the state.” View "Sweeney v. California Regional Water Quality Control Board" on Justia Law

The Supreme Court affirmed in part and reversed in part the judgment of the circuit court reversing the decision of the Deuel County Board of Adjustment granting special exception permits (SEP) to Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy South, LLC (Deuel Harvest) to develop two wind energy systems in the County, holding that the circuit court erred by invalidating the votes of two Board members.Following a public hearing, the Board unanimously approved the SEPs. Appellees, several residents of Deuel County and neighboring counties, petitioned for a writ of certiorari, asserting that several Board members had interests or biases disqualifying them from considering the permits. The circuit court invalidated the votes of two Board members due to disqualifying interests and overturned the Board's approval of the SEPs. The Supreme Court reversed in part and reinstated the Board's unanimous vote in approving the SEPs, holding that the circuit court erred in disqualifying the two members from voting on the SEPs. View "Holborn v. Deuel County Board of Adjustment" on Justia Law

Since 2011, Jonesboro’s wastewater system has spewed sewage onto Stringer’s property and into her home during heavy rains. Stringer repeatedly complained to the town and its mayor, then brought a “citizen suit” under the Clean Water Act (CWA), 33 U.S.C. 1365, with constitutional claims under 42 U.S.C. 1983 for the uncompensated taking of her property and the mayor’s retaliation. Stringer ran against the mayor in 2014 and claims he retaliated by ignoring her pleas, getting the town to sue her frivolously, and refusing to provide sandbags. The Louisiana Departments of Health (LDOH) and Environmental Quality (LDEQ) have long known about the problems. LDEQ sent the town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH issued a compliance order about the discharges on Stringer’s property, imposed mandatory ameliorative measures, and assessed a daily fine. The district court dismissed, finding that the CWA prohibits such suits when a state is addressing the problem through “comparable” state law and finding her section 1983 claims untimely under Louisiana’s one-year prescriptive period. The Fifth Circuit affirmed as to the section 1983 claims. Stringer was long aware of the underlying facts and failed to sue within a year. The Fifth Circuit reversed in part. The enforcement action to which the court pointed—the state health department’s enforcement of the sanitary code—is not “comparable” to the CWA under circuit precedent. View "Stringer v. Town of Jonesboro" on Justia Law

This appeal stemmed from an application for a conditional water storage right filed by United Water and Sanitation District, a special water district formed in Elbert County, Colorado, acting through the United Water Acquisition Project Water Activity Enterprise (“United”). United sought to secure various water rights in Weld County. United’s original applications were consolidated in a set of four cases. In response to a motion for determination of questions of law from opposer Farmers Reservoir and Irrigation Company (“FRICO”) in the consolidated cases, the District Court for Water Division 1 (“water court”) concluded that United’s applications failed to demonstrate non-speculative intent to appropriate water. In response to this ruling, United withdrew its applications in the consolidated cases and, a week later, filed a new application in Case No. 16CW3053 for a conditional water storage right that was the subject of this appeal. Pertinent here, United sought to appropriate water for use in a proposed residential development in another county. In support of its new application for a conditional storage right, United offered a new, purportedly binding contract with the landowners of the proposed development. United also claimed for the first time that its status as a special district qualified it for the governmental planning exception to the anti-speculation doctrine. FRICO opposed United's application, and the water court determined United's new application likewise failed to demonstrated non-speculative intent to appropriate water. The water court found that United was acting as a water broker to sell to third parties for their use, and not as a governmental agency seeking to procure water to serve its own municipal customers. Consequently, the water court held, United did not qualify for the governmental planning exception to the anti-speculation doctrine. United appealed. But concurring with the water court's judgment, the Colorado Supreme Court affirmed: United was ineligible for the governmental planning exception to the anti-speculation doctrine. View "United Water & Sanitation Dist. v. Burlington Ditch Reservoir & Land Co." on Justia Law