Justia Zoning, Planning & Land Use Opinion Summaries

This appeal stemmed from an Agency of Natural Resources (ANR) decision to extend the City of Burlington’s 2011 Conditional Use Determination (2011 CUD), which permitted the City to commence construction on the Champlain Parkway project. Appellant Fortieth Burlington, LLC (Fortieth) challenged ANR’s approval of the permit extension, and the Environmental Division’s subsequent affirmance of that decision, on grounds that the City failed to adhere to several project conditions outlined in the 2011 CUD and was required to redelineate and reevaluate the wetlands impacted by the project prior to receiving an extension, among other reasons. The Environmental Division dismissed Fortieth’s claims, concluding that the project complied with the 2011 CUD’s limited requirements for seeking a permit extension and that Fortieth’s other claims were collateral attacks against the underlying permit and were impermissible. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)" on Justia Law

The Ninth Circuit withdrew its prior opinion filed December 12, 2017, and substituted the following opinion.In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the panel upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. The panel held that that withdrawal did not extinguish "valid existing rights."The panel affirmed, with one exception, the district court's judgment in an action filed by the Tribe and three environmental groups challenging the Forest Service's determination that Energy Fuels had a valid existing right to operate a uranium mine on land within the withdrawal area. The panel held that the Federal Land Policy and Management Act of 1976, and not the Mining Act, formed the legal basis of plaintiffs' claim that Canyon Mine should not be exempt from the withdrawal because the valid existing right determination was in error. The panel vacated as to this claim and remanded for reconsideration on the merits. View "Havasupai Tribe v. Provencio" on Justia Law

The city approved an agreement with PG&E which authorized and imposed conditions on the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report stated that the removal of protected trees constituted a Major Tree Removal Project, requiring tree removal permits and mitigation. PG&E was willing to provide requested information and applicable mitigation but claimed that an exemption from obtaining any discretionary permits. The city agreed to process the project under Lafayette Municipal Code section 6-1705(b)(S), which allows the city to allow removal of a protected tree “to protect the health, safety and general welfare of the community.” The trial court dismissed a challenge. The court of appeal reversed in part. Claims asserted under the planning and zoning law (Government Code 65000), the city’s general plan, and the city’s tree protection ordinance are barred by Government Code 65009(c)(1)(E), as not timely-served. The statute requires that an action challenging a decision regarding a zoning permit be filed and served within 90 days of the decision; the original petition was timely filed on June 26, 2017, but was not served until after the 90-day deadline. The claim under the California Environmental Quality Act (Pub. Resources Code, 21000) was timely filed and served under Public Resources Code 21167(a) and 21167.6(a). View "Save Lafayette Trees v. City of Lafayette" on Justia Law

In 2007, the Site, in Trainer Borough, was owned by SCT, and used for making corrosion inhibitors, fuel additives, and oil additives. SCT kept flammable, corrosive, and combustible chemicals. Pennsylvania’s Department of Environmental Protection (PADEP) determined that “there is a release or threat of release of hazardous substances or contaminants, which presents a substantial danger to human health or the environment. The federal EPA initiated removal actions. SCT could not afford the cleanup expenses, including electricity to power pollution control and security equipment, The power company was going to shut off the Site's electricity, so PADEP assumed responsibility for the bills. Delaware County forced a tax sale. Buyers purchased the Site for $20,000; the purchase agreement stated that the Site had ongoing environmental issues and remediation. Trainer Custom Chemical took title in October 2012. The EPA and PADEP completed their removal actions in December 2012. PADEP had incurred more than $818,000 in costs. The buyers had demolished many of the Site’s structures; reclaimed salvageable materials were sold for $875,000. In 2014, PADEP received reports indicating that hazards still existed at the Site; its buildings had asbestos-containing materials. PADEP sued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-28, and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA), to recover cleanup costs. The Third Circuit held that the Buyer is liable for environmental cleanup costs incurred at the Site both before and after the Buyer acquired it. View "Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical LLC" on Justia Law

From 1910 until 1986, Greenlease Holding Co. (“Greenlease”), a subsidiary of the Ampco-Pittsburgh Corporation (“Ampco”), owned a contaminated manufacturing site in Greenville, Pennsylvania. Trinity Industries, Inc. and its wholly-owned subsidiary, Trinity Industries Railcar Co. (collectively, “Trinity”), acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. An investigation by Pennsylvania into Trinity’s waste disposal activities resulted in a criminal prosecution and eventual plea-bargained consent decree which required, in relevant part, that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. This appeal arose out of the district court’s determination that, under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), Trinity was entitled to contribution from Greenlease for remediation costs. The parties filed cross-appeals challenging a number of the district court’s rulings, including its ultimate allocation of cleanup costs. The Third Circuit ultimately affirmed the district court on several pre-trial rulings on dispositive motions, vacated the cost allocation determination and remanded for further proceedings. View "Trinity Industries Inc v. Greenlease Holding Co." on Justia Law

Plaintiff-respondent San Diego Unified Port District (District) unsuccessfully asked defendant-appellant California Coastal Commission (Commission) to certify an amendment of District's port master plan to authorize hotel development in the East Harbor Island subarea, including construction of a 175-room hotel by real party in interest Sunroad Marina Partners, LP (Sunroad). District filed a petition for peremptory writ of mandate challenging Commission's denial of certification, and the trial court in January 2017 issued the writ, finding Commission violated provisions of the California Coastal Act of 1976 and "impermissibly set policy" by setting a maximum rental rate or fixing room rental rates. Commission did not appeal that ruling, but reheard District's application and again denied certification, finding the master plan amendment lacked sufficient specificity to adequately protect lower cost visitor and public recreational opportunities, including overnight accommodations. On objections by District and Sunroad, the trial court in August 2017 ruled that Commission had essentially conditioned its certification on the provision of lower cost overnight accommodations, which "infring[ed] on the wide discretion afforded to the District to determine the contents of land use plans and how to implement those plans." The court ruled that Commission acted in excess of its jurisdiction and did not proceed in the manner required by law. Commission appealed the August 2017 postjudgment order, contending it complied with the writ, but afterwards, in the face of Port's and Sunroad's objections, the trial court expanded the writ's scope, thereby exceeding its jurisdiction. Commission asked the Court of Appeal to find it complied with the writ as issued, reverse the order sustaining District and Sunroad's objection, and direct the trial court to discharge the writ. Furthermore, the Commission contended it properly denied District's proposed amendment on remand. The Court of Appeal narrowly reviewed the correctness of the trial court's postjudgment ruling that Commission exceeded its jurisdiction or acted contrary to law in denying certification of District's proposed master plan amendment. Doing so, the Court held the trial court erred by relying in part on provisions of the Act governing a local government's authority and imposing limits on Commission's jurisdiction with respect to local coastal programs, which did not pertain to port master plans or master plan amendments. Furthermore, the Court concluded the lower court engaged in an impermissibly broad interpretation of a provision of the Act barring Commission from modifying a master plan amendment as a condition of certification. View "San Diego Unified Port Dist. v. Cal. Coastal Commission" on Justia Law

The city’s General Plan policy LU-7 encourages new neighborhood commercial facilities and supermarkets to be located to maximize accessibility to all residential areas. Wal-Mart proposed to expand its store to add 36,000 square feet for a 24-hour grocery/supermarket. The city's draft environmental impact report (EIR) concluded the project was “consistent” with LU-7, stating: “There are no existing grocery stores within a 1-mile radius …project would install bicycle storage facilities and enhance pedestrian facilities to improve accessibility.” Objectors claimed that the project would close existing neighborhood-serving grocery stores, is located in a large commercial area, and would contribute to an over-concentrated area. The planning commission declined to approve the original EIR, citingPolicy LU-7. The city council granted an appeal. Previous litigation concerned noise and traffic impacts and resulted in a revised EIR and reapproval. Opponents then challenged the approval based on the General Plan. The trial court concluded the petition was barred by res judicata and the statute of limitations and that substantial evidence supported the approval. The court of appeal affirmed. The project is in a new growth area with increasing residential communities and is located at least a mile from the next closest supermarket but it may place stress on other local supermarkets. Considering the evidence as a whole, the decision was not palpably unreasonable, and did not exceed the city’s “broad discretion.” View "Atwell v. City of Rohnert Park" on Justia Law

Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law

From 1910-1986, Greenlease owned the Greenville Pennsylvania site and operated railcar manufacturing facilities there. Trinity acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. A state investigation of Trinity’s waste-disposal activities resulted in criminal prosecution and, eventually, a plea-bargained consent decree, requiring that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. The district court held that, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 (CERCLA), and Pennsylvania’s Hazardous Sites Cleanup Act, Trinity is entitled to contribution from Greenlease for remediation costs. After eight years of litigation, and having sorted through a century of historical records, the court allocated 62% of the total cleanup costs to Greenlease and the remainder to Trinity. The Third Circuit affirmed pre-trial rulings on dispositive motions but vacated the cost allocation determination. The agreement between Trinity and Greenlease did not shift liability away from Greenlease after a three-year contractual indemnification period expired. Trinity’s response costs were necessary and reasonable. The court’s methodology, however, failed to differentiate between different remediation activities and their varied costs, and, as applied, treated data measured in square feet as equivalent to data measured in cubic yards. View "Trinity Industries Inc v. Greenlease Holding Co" on Justia Law

Real parties in interest Carlton and Raye Lofgren, as Trustees of the Lofgren Family Trust and the Lofgren 1998 Trust (the Lofgrens), sought a residential development permit to build six single-family homes on a parcel of just over 11 acres in Riverside. After respondent City of Riverside (the City) approved the permit and issued a negative declaration stating the development did not require environmental review under the California Environmental Quality Act (CEQA), Friends of Riverside’s Hills (FRH) filed a petition for a writ of mandate challenging that decision. FRH alleged the City was required to conduct a CEQA Environmental Impact Review (EIR) of the development because it violated certain land use provisions in the City’s municipal code. FRH also alleged the City abused its discretion by approving a project that violated its own land use provisions. The trial court denied FRH’s petition. The Court of Appeal found no evidence of the alleged land use violations, and affirmed the judgment. View "Friends of Riverside's Hills v. City or Riverside" on Justia Law