Justia Zoning, Planning & Land Use Opinion Summaries

In 2008, defendant-appellees Roger Brooks and Veryl Goodnight filed an application with the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate was located. Both, however, referred repeatedly to the Davenport Ditch. Appellees successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. Eight years later, plaintiff-appellant Gary Sheek filed this action at the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’s decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. The Colorado Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. View "Sheek v. Brooks" on Justia Law

At issue in this case is whether the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) properly issued a permit to the City of Guyton to build and operate a land application system (“LAS”) that would apply treated wastewater to a tract of land through spray irrigation. Craig Barrow III challenged the issuance of that permit, arguing that, among other things, EPD issued the permit in violation of a water quality standard, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2) (b) (ii) (the “antidegradation rule”), because it failed to determine whether any resulting degradation of water quality in the State waters surrounding the proposed LAS was necessary to accommodate important economic or social development in the area. An administrative law judge rejected Barrow’s argument, finding that the rule required an antidegradation analysis only for point source discharges of pollutants and the LAS at issue was a nonpoint source discharge. The superior court affirmed the administrative ruling. The Court of Appeals reversed, concluding that the plain language of the antidegradation rule required EPD to perform the antidegradation analysis for nonpoint source discharges, and that EPD’s internal guidelines to the contrary did not warrant deference. The Georgia Supreme Court granted certiorari review in this matter to consider what level of deference courts should afford EPD's interpretation of the antidegradation rule, and whether that regulation required an antidegradation analysis for nonpint source discharges. The Court concluded the Court of Appeals was correct that the antidegradation rule was unambiguous: the text and legal context of the regulation showed that an antidegradation analysis was required only for point sources, not nonpoint sources. Therefore, the Court reversed. View "City of Guyton v. Barrow" on Justia Law

In 1988, defendant United States Forest Service designated a 2,380 acre portion of the Manti-La Sal National Forest’s highest elevations, namely the summits and ridges of Mt. Peale, Mt. Mellenthin, and Mt. Tukuhnikivatz, as the Mt. Peale Research Natural Area (RNA). In June 2013, the Utah Wildlife Board approved UDWR’s “Utah Mountain Goat Statewide Management Plan.” Among other things, UDWR’s plan anticipated the release of a target population of 200 mountain goats into the La Sal Mountains adjacent to the Manti-La Sal National Forest for the express purposes of hunting and viewing. The FS, concerned the goats might adversely affect the habitat of the higher alpine regions of the national forest, asked the Utah’s Division of Wildlife Resources (UWDR) to delay implementation of its plan while the FS in coordination with UDWR studied the plan’s expected impact on the national forest and the RNA. UDWR rejected the FS’s request for an outright delay, and indicated it would begin implementing its plan by transplanting a small number of goats into the mountains, but would work cooperatively with the FS to assess impacts and develop a strategy to prevent overutilization of the habitat. In September 2013, UDWR released twenty mountain goats on State lands adjacent to the Manti-La Sal National Forest. A year later, UDWR released an additional fifteen mountain goats on the same State lands. The goats moved into the La Sal Mountains’ higher elevations, wallowing and foraging within the national forest and more particularly within the Mt. Peale RNA. Plaintiff Grand Canyon Trust demanded the FS: (1) prohibit UDWR from introducing additional mountain goats onto State lands adjacent to the national forest; (2) regulate UDWR’s occupancy and use of the national forest by requiring it to obtain special use authorization before releasing additional mountain goats on State lands; and (3) immediately remove the mountain goats already in the national forest. Determining UDWR did not release the goats on federal lands, the FS elected to "wait and see" before initiating any action against UDWR, and to "gather and evaluate data sufficient to determine whether action was warranted." GCT thereafter filed for declaratory and injunctive relief. The Tenth Circuit upheld the district court's dismissal of GCT's complaint, concurring with the trial court that GCT "cleverly amalgamated federal law in an attempt to find some pathway to judicial review." The Tenth Circuit concluded GCT failed to state a claim upon which relief could be granted, and affirmed dismissal of the complaint. View "Utah Native Plant Society v. U.S. Forest Service" on Justia Law

In 2008, defendant-appellees Roger Brooks and Veryl Goodnight (together “Brooks”) filed an application in the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate was located. However, both referred repeatedly to the Davenport Ditch. Brooks successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. Eight years later, plaintiff-appellant Gary Sheek filed this action in the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’ decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. After concluding that sufficient notice was provided, the water court granted Brooks’ motion for summary judgment and deemed the trespass and injunction claims moot in light of that ruling. The court then dismissed the prescriptive easement claim as well as the theft and interference claim for lack of subject-matter jurisdiction. The Colorado Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. View "Sheek v. Brooks" on Justia Law

A series of appeals concerned a dispute over competing rights to irrigation tail and waste water that collected in a borrow ditch. The Colorado Supreme Court was asked to determine whether a driveway that interrupted the flow of water in the ditch rendered the sections of borrow ditch on either side of the driveway separate sources of water for purposes of the postponement doctrine. S. Cade and Bradley Huffaker and a neighboring landowner, Lee Crowther, filed competing applications for rights to this water. The Huffakers filed their application in 2013; Crowther filed his in 2016. The Huffakers argued that under the postponement doctrine, they were entitled to the senior right in the borrow ditch water because they filed their application first. The water court held that the postponement doctrine did not apply here because it concluded the water rights claimed by the Huffakers and Crowther did not derive from the same source. Therefore, the court held that Crowther’s right to divert water at the culvert was not junior to the Huffakers’ right, even though Crowther’s application was filed two and a half years after the Huffakers’ application. The Huffakers appealed, again contending that the postponement doctrine applied to determine the priority of the applicants’ competing rights to the water in the borrow ditch, and that they were entitled to the senior priority because they filed their application first. They further argued the collection area of their absolute water right began not at the driveway, but farther south (upstream) at the same point as Crowther’s right. The Supreme Court agreed with both contentions and reversed the water court. View "Concerning the Application for Water Rights of S. Cade Huffaker" on Justia Law

The Alaska National Interest Lands Conservation Act (ANILCA) set aside 104 million acres of federally-owned land for preservation, creating 10 new national parks, monuments, and preserves (units), 16 U.S.C. 3102(4). In establishing boundaries, Congress followed natural features rather than enclosing only federally-owned lands, sweeping in more than 18 million acres of state, Native, and private land, which could have become subject to many National Park Service rules, 54 U.S.C. 100751 (Organic Act). ANILCA Section 103(c) states that only “public lands,” defined as most federally-owned lands, waters, and associated interests, within any unit’s boundaries are “deemed” part of that unit and that no state, Native, or private lands “shall be subject to the regulations applicable solely to public lands within units." The Service may “acquire such lands,” after which it may administer the land as public lands within units.Sturgeon traveled by hovercraft up the Nation River within the boundaries of the Yukon-Charley Preserve unit. Park rangers informed him that the Service’s rules (36 CFR 2.17(e)) prohibit operating a hovercraft on navigable waters “located within [a park’s] boundaries.” That regulation, issued under the Service’s Organic Act authority, applies to parks nationwide without regard to the ownership of submerged lands, tidelands, or lowlands. The district court and the Ninth Circuit denied Sturgeon relief.A unanimous Supreme Court reversed. The Nation River is not public land under ANILCA. Running waters cannot be owned; under the Submerged Lands Act, Alaska, not the United States, holds “title to and ownership" of the lands beneath navigable waters, 43 U.S.C. 1311. Even if the United States has an “interest” in the River under the reserved-water-rights doctrine, the River itself would not be “public land.” Section 103(c) exempts non-public lands, including waters, from Park Service regulations, which apply “solely” to public lands within the units. View "Sturgeon v. Frost" on Justia Law

Forest City proposed a four-acre mixed-use development, bounded by Mission, Fifth, Howard, and Mary Streets. The area has eight existing buildings. The San Francisco Planning Department released its draft environmental impact report (DEIR) in 2014, describing two options. Both would have new active ground floor space, office use, residential dwelling units, and open space. Both would rehabilitate the Chronicle and Dempster Printing Buildings, demolish other buildings, and construct four new buildings. The DEIR discussed nine alternatives, rejecting five as infeasible, and concluding that a preservation alternative was environmentally superior because it would “achieve some of the project objectives regarding the development of a dense, mixed-use, transit-oriented, job-creating project” but avoid the “irreversible impact” of demolishing the Camelline Building, avoid regional pollutant impact, and reduce the transportation and circulation impacts. The Planning Commission held an informational hearing, accepted public comments, and published its responses to public comments, comprising the final EIR. The Commission adopted CEQA (California Environmental Quality Act, Pub. Resources Code 21000) findings, a statement of overriding considerations, and a mitigation monitoring and reporting program; raised the shadow limit for Boeddeker Park; approved a design for development document; recommended amendments to the general plan, Planning Code, and zoning map; and recommended adoption of a development agreement. The Board of Supervisors, trial court, and court of appeal upheld the approvals. The project description was adequate under CEQA; opponents failed to show the EIR was deficient for failing to properly consider cumulative impacts. CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection. View "South of Market Community etc. v. City and County of San Francisco" on Justia Law

Intervenor-respondent Riverbend Landfill Co. sought to expand its solid waste landfill in Yamhill County, Oregon on land zoned for exclusive farm use (EFU). Respondent Yamhill County determined for a second time that, with conditions of approval, the landfill expansion would not create a significant change in accepted farm practices or significantly increase the cost of those practices on surrounding agricultural lands, thereby meeting the "farm impacts test." But petitioners Stop the Dump Coalition, Willamette Valley Wineries Association, and Ramsey McPhillips and petitioner-intervenor Friends of Yamhill County (collectively, petitioners) contended Riverbend’s applications failed the farm impacts test. Broadly, the parties disputed what the farm impacts test measured and whether some of the conditions that the county imposed for approval are proper under ORS 215.296(2). On review of the Oregon Supreme Court, petitioners took issue with both the latest order of the Land Use Board of Appeals (LUBA) in Stop the Dump Coalition v. Yamhill County, 74 Or LUBA 1 (2016) (SDC II), and the decision of the Court of Appeals upholding that order in Stop the Dump Coalition v. Yamhill County, 391 P3d 932 (2017) (SDC III). Petitioners challenged some of the county’s conditions of approval, which LUBA and the Court of Appeals approved, and the Court of Appeals’ articulation of how the county must evaluate impacts of the landfill expansion on farm practices and their costs. Ultimately, the Supreme Court affirmed in part and reversed in part the decision of the Court of Appeals and affirmed in part, reversed in part, and remanded the final opinion and order of the Land Use Board of Appeals. View "Stop the Dump Coalition v. Yamhill County" on Justia Law

The city approved the agreement with Pacific Gas and Electric Company (PG&E), authorizing the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report explains that this is a Major Tree Removal Project, requiring a tree removal permit and mitigation for the removed trees. PG&E was willing to provide requested information and mitigation but claimed to be exempt from obtaining any discretionary permits. “To ensure that the [community pipeline safety initiative] can move forward and to protect the public safety, PG&E and City staff have agreed to process the ... project under [Code] section 6-1705(b)(S). This section allows the city to allow removal of a protected tree ‘to protect the health, safety and general welfare of the community.’“ Opponents sued, alleging violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), the planning and zoning law, the general plan, and the tree ordinance, and the due process rights of the petitioners by failing to provide sufficient notice of the hearing. PG&E argued that the suit was barred by Government Code 65009(c)(1)(E), which requires an action challenging a decision regarding a zoning permit to be filed and served within 90 days of the decision. The original petition was timely filed but not served until after the deadline. The trial court dismissed without leave to amend. The court of appeal affirmed as to the ordinance claims but reversed with respect to CEQA. View "Save Lafayette Trees v. City of Lafayette" on Justia Law

Berkeley approved the construction of three houses on adjacent parcels in the Berkeley Hills, citing the California Environmental Quality Act (CEQA), Pub. Resources Code, 21000 exemption for “up to three single-family residences” in urbanized areas. Plaintiffs opposed the approval, citing the “location” exception: “a project that is ordinarily insignificant in its impact ... may in a particularly sensitive environment be significant … where the project may impact on an environmental resource of hazardous or critical concern where designated.” The projects were within the Alquist-Priolo Earthquake Fault Zone and in a potential earthquake-induced landslide area mapped by the California Geologic Survey. The court of appeal affirmed the denial of the petition for writ of mandate. Giving meaning to the phrase “environmental resource,” the location exception was not intended to cover all areas subject to such potential natural disasters as a matter of law; it applies “where the project may impact on an environmental resource.” The exception reflects a concern with the effect of the project on the environment, not the impact of existing environmental conditions (such as seismic and landslide risks) on the project or future residents Plaintiffs produced no evidence that construction of the three proposed residences would exacerbate existing hazardous conditions or harm the environment View "Berkeley Hills Watershed Coalition v. Berkeley" on Justia Law