Justia Zoning, Planning & Land Use Opinion Summaries

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

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

Verizon Wireless obtained approval from the City of San Diego (the City, together respondents) to construct a wireless telecommunications facility (WCF, the Project) in Ridgewood Neighborhood Park (the Park), a dedicated park. Don't Cell Our Parks (DCOP), a not-for-profit entity, filed a petition for writ of mandate challenging the City's determination. The trial court denied the petition, concluding that under San Diego City Charter section 55 (Charter 55), the City had control and management of dedicated parks and the discretion to determine whether a particular park use would change the use or purpose of the Park and thus require a public vote. The Court of Appeal concluded the Project did not constitute a changed use or purpose that required voter approval. DCOP also claimed the Project did not qualify under the California Environmental Quality Act (CEQA) for a categorical exemption under CEQA Guidelines section 153031 which pertained to the construction of new small facilities. The Court rejected this argument too, and thus affirmed the trial court in full. View "Don't Cell Our Parks v. City of San Diego" on Justia Law

Crown proposed to install 13 microcell transmitters on utility poles, primarily in the public right of way, as part of a Distributed Antenna System (DAS) in the Day Valley area, a rural portion of unincorporated Aptos. A staff report characterized the microcells as “relatively visually inconspicuous” small structures Santa Cruz County concluded that Crown’s DAS project was categorically exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000) and rejected a claim that an exception to the exemption applied for “unusual circumstances” or “cumulative impact.” The court of appeal affirmed the superior court in upholding the approval. The court rejected arguments that the county: failed to consider the entire project and instead improperly segmented the project by considering each microcell individually; in determining that the “cumulative impact” exception did not apply, failed to consider information submitted by opponents that AT&T was interested in putting cell transmitters in the Day Valley area; erroneously concluded that the “location” exception and the “unusual circumstances” exception did not apply based on the residential agricultural nature of the area. Opponents produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area. View "Aptos Residents Association v. County of Santa Cruz" on Justia Law

Plaintiffs Clews Land and Livestock, LLC; Barbara Clews; and Christian Clews (collectively, CLL) appealed a judgment in favor of defendant City of San Diego (City) on CLL's petition for writ of mandate and complaint for declaratory and injunctive relief, violation of procedural due process, and equitable estoppel. CLL challenged the City's approval of a project to build a private secondary school on land neighboring CLL's commercial horse ranch and equestrian facility and the City's adoption of a mitigated negative declaration (MND) regarding the project. CLL contended the City should not have adopted the MND because the Cal Coast Academy project would cause significant environmental impacts in the areas of fire hazards, traffic and transportation, noise, recreation, and historical resources, and because the MND identified new impacts and mitigation measures that were not included in the draft MND. CLL further argued the City should not have approved the project because it is situated in designated open space under the applicable community land use plan and because the City did not follow the provisions of the San Diego Municipal Code (SDMC) applicable to historical resources. After review, the Court of Appeal concluded CLL's challenge to the MND was barred because it did not exhaust its administrative remedies in proceedings before the City. In doing so, the Court rejected CLL's argument that the City's process for administrative appeals (at least as implicated by this project) violated the California Environmental Quality Act by improperly splitting the adoption of an environmental document (e.g., the MND) from the project approvals. In addition, the City complied with all applicable requirements of the SDMC regarding historical resources and the City's approval of the project did not conflict with the open space designation because the project would be located on already-developed land. View "Clews Land & Livestock, LLC v. City of San Diego" on Justia Law

In 1998, Modesto, its Sewer District, and its Redevelopment Agency (RDA) sued retail dry cleaning businesses operating in Modesto, the manufacturers of dry cleaning equipment used at those establishments, and the manufacturers and distributors of dry cleaning solvent, alleging that the city’s groundwater, sewer system and easements, and the soil of property within the RDA project area were contaminated with perchloroethylene, a “toxic chlorinated solvent” and seeking recovery for past, present and future costs of investigation and remediation. The Polanco Redevelopment Act (Health & Saf. Code, 33459), which authorized redevelopment agencies to remediate contamination found in property, including private property, located in a redevelopment project area, and to recover costs from the “responsible parties” was central to the suit. After 14 years of litigation, with three appeals, a final judgment awarded damages with respect to three dry cleaning sites, including an award of punitive damages against three defendants; as to all other claims, judgment was entered in favor of defendants. The court of appeal vacated, holding that no special causation standard applies to Polanco Act claims. The court also: remanded with directions to deny motions for summary adjudication on the nuisance claims; reversed a punitive damages award; and vacated a directed verdict regarding property damage. View "City of Modesto v. Dow Chemical Co." on Justia Law

The Court of Appeal affirmed the trial court's denial of the Conservancy's petition for a writ of mandate to compel the City of West Hollywood to set aside the City's approval of a real estate development project. The court held that the environmental impact report's (EIR) analysis of alternatives to the project was adequate. Although the EIR did not include a conceptual design of Alternative 3, the Conservancy did not cite any legal authority requiring an EIR to include design plans for project alternatives, and the court declined to so hold. Furthermore, the imprecision inherent in the estimates of space reduction did not render the EIR defective. The court also held that the EIR's response to public comments was adequate, and there was substantial evidence to support the finding of infeasibility of Alternative 3. View "L.A. Conservancy v. City of West Hollywood" on Justia Law