Justia Zoning, Planning & Land Use Opinion Summaries

The Inholders own patented mining and homestead claims within the Santa Fe National Forest. The 2011 Las Conchas Fire caused widespread destruction of vegetation within the forest. Forest Roads 89 and 268, which the Inholders had used to access their properties, were severely damaged by subsequent flooding. The Forest Service notified them that the roads were “impassible” and that it would provide them with limited access: “a combination of driving and hiking over specific routes and under specific weather conditions.” Later, the Service sent a letter stating that “public safety would be highly threatened by use of” the roads; that it would close the roads to public access for the foreseeable future; that because of continuing terrain instability, any reconstruction would likely be destroyed by future flooding; and, even if reconstruction were possible, the Service could not justify expending public funds when there is no general public need. The Service suggested that the Inholders work “collectively” to reconstruct the roads. The Inholders claimed that they held statutorily-granted easements. The USDA disagreed, citing 90 Stat. 2743, but acknowledged that the Inholders had a right to access their properties, “subject to reasonable regulations.” The Inholders claimed a compensable taking. The Federal Circuit affirmed the Claims Court’s dismissal, finding that the Inholders had not adequately pled a physical taking and that any regulatory taking claim was not ripe because the Inholders had not applied for a permit to reconstruct the roads. View "Martin v. United States" on Justia Law

In 1995, Orchard purchased the Warmke Parcel, 13 acres of wetlands, for residential development. Orchard requested a determination from the Army Corps of Engineers that the wetlands were not jurisdictional “waters of the United States” under the Clean Water Act, 33 U.S.C. 1251(a). Before 2015, the Corps defined waters of the United States to include waters “subject to the ebb and flow of the tide,” “rivers” that could be used for interstate recreation or commerce, “tributaries” of such waters, and “wetlands adjacent to” other waters of the United States, including tributaries. The Warmke wetlands are surrounded by residential development. The closest navigable water, Little Calumet River, is 11 miles away. In between the Warmke wetlands and Little Calumet River are man‐made ditches, sewer pipes, and Midlothian Creek—a tributary of the Little Calumet River. The Warmke wetlands drain, via sewer pipes, to Midlothian Creek. While the Warmke issue was pending, the Supreme Court decided that a wetland’s adjacency to a tributary of a navigable‐in‐fact water is alone insufficient to make the wetland a water of the United States, “the Corps’ jurisdiction over [such] wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The Seventh Circuit reversed the Corps’ claim of jurisdiction, finding that the Corps has not provided substantial evidence of a significant nexus to navigable‐in‐fact waters. View "Orchard Hill Building Co. v. United States Army Corps of Engineers" on Justia Law

This case centered on Coors Brewing Company’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that Coors diverted out of priority pursuant to those plans. The City of Golden opposed this application, arguing that Coors could not proceed by amendment but had to adjudicate a new water right to reuse or make successive use of the return flows. The water court ruled: (1) any amount of water not beneficially used by Coors for the uses specified in its decreed augmentation plans had to be returned to the stream; (2) Coors’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) Coors could not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right. Coors appealed, arguing that the water court erred: (1) by holding that Coors could not proceed by amendment but had to adjudicate a new water right; (2) by concluding that water unconsumed by Coors’s initial use had to be returned to the stream and was subject to appropriation by other water users; and (3) interpreting Coors’s augmentation plan decrees to require permanent dedication of return flows to the stream. The Colorado Supreme Court concluded that in order to obtain the right to reuse and make successive use of the return flows at issue, Coors had to adjudicate a new water right and could not circumvent this requirement by amending its decreed augmentation plans. Furthermore, the Court held that the diversion of native, tributary water under an augmentation plan did not change its character. Accordingly, the general rule, providing that return flows belong to the stream, applied. Finally, the Court concluded the water court correctly construed Coors’s augmentation plans. View "Coors Brewing Co. v. City of Golden" on Justia Law

Santa Rosa decided to turn a 69-bed defunct hospital into the "Dream Center" to house 63 people, ages 18-24, and provide individual and family counseling, education and job training, a health and wellness center serving the community for ages five through 24, and activities for residents, including a pottery throwing area, a half-court basketball area, and a garden. Neighbors challenged the project under the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), arguing that noise impacts required preparation of an environmental impact report (EIR). The city issued a negative declaration, indication that the project would not have a significant environmental effect and an EIR would not be required. On appeal, the neighbors focused on traffic noise from the south parking lot adjacent to the Dream Center, and noise from the residents’ outdoor recreational activities. The court of appeal affirmed, finding no substantial evidence that there would be a significant noise impact from those sources. The predicted parking lot noise impacts are largely hypothetical, given the city’s parking restrictions in that lot; neighbors' impact calculations were based on data from a different project that cannot reasonably be applied to the Dream Center. An argument that the noise from residents’ outdoor activities would constitute a significant environmental impact was also based on a flawed analysis. View "Jensen v. City of Santa Rosa" on Justia Law

Between 1853 and 1995, the Port Gamble Bay facility in Kitsap County, Washington operated as a sawmill and forest products manufacturing facility by Pope & Talbot and its corporate predecessors. Close to four decades after Puget Mill Co., predecessor to Pope & Talbot, began operating the sawmill, the legislature authorized the disposal of certain occupied state-owned aquatic lands, including the tidal lands within Port Gamble Bay. The Washington Department of Natural Resources (DNR) issued the first lease for Pope & Talbot's use of the Port Gamble Bay submerged lands in 1974. In 1985, Pope & Talbot transferred 71,363 acres of its timberlands, timber, land development, and resort businesses in the State of Washington to Pope Resources, LP, which in turn leased the mill area to Pope & Talbot. Pope & Talbot ceased mill operations in 1995. Pope sought to develop their Port Gamble holdings for a large, high-density community with a marina. However, the Port Gamble site was contaminated, in part from the operation of sawmill buildings to saw logs for lumber, operation of chip barge loading facilities and a log-transfer facility, particulate sawmill emissions from wood and wood waste burning, in-water log rafting and storage, and creosote treated pilings placed throughout the bay to facilitate storage and transport of logs and wood products. After entering into a consent decree with the Washington Department of Ecology in 2013 for remediation of portions of the site exposed to hazardous substances, Pope/OPG filed a complaint in 2014 seeking a declaration that DNR was liable for natural resources damages and remedial costs, and for contribution of costs. The Superior Court granted summary judgment in favor of DNR in 2016. The Court of Appeals reversed, holding that DNR was an "owner or operator" with potential liability under the Washington Model Toxics Control Act (MTCA). DNR appealed, and the Washington Supreme Court reversed, finding DNR was neither an "owner" nor an "operator" of the Port Gamble Bay facility for purposes of MTCA. View "Pope Res., LP v. Dep't of Nat. Res." on Justia Law

Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

Front Range Resources, LLC, a private company that owned or managed various water rights, applied for a replacement plan in the Lost Creek Designated Ground Water Basin. Under the plan, Front Range sought to divert water from its existing water rights to recharge the Lost Creek Basin’s alluvial aquifer. It then planned to withdraw the recharged water by increasing the use of its existing wells and by constructing new wells. Defendants (parties that believed their water rights would be impaired by the plan) objected to Front Range’s replacement plan, and the Ground Water Commission ultimately dismissed Front Range’s application with prejudice, allowing Front Range to appeal to the district court. Meanwhile, Front Range and the City of Aurora entered into an option contract for Aurora to purchase some or all of the replacement-plan water upon the replacement plan’s approval. On appeal, the district court rejected Front Range’s use of water rights in the South Platte River in the replacement plan. It further found the replacement plan involved new appropriations and changes of water rights, triggering the anti-speculation doctrine. In granting summary judgment against Front Range, the district court concluded Front Range’s planned use of the replacement-plan water (including its option contract with Aurora) violated the anti-speculation doctrine. Some of the Defendants then pursued attorney fees, arguing Front Range’s claims lacked substantial justification. But the district court denied their motion. After review, the Colorado Supreme Court held the anti-speculation doctrine applied to replacement plans involving new appropriations or changes to designated ground water rights. Because Front Range could not demonstrate that it or Aurora would put the replacement-plan water to beneficial use, the district court did not err in granting Defendants’ motion for summary judgment. Furthermore, the Court concluded the district court did not abuse its discretion in denying Defendants’ motion for attorney fees. View "Front Range Resources, LLC v. Colorado Ground Water Commission" on Justia Law