Justia Zoning, Planning & Land Use Opinion Summaries

At issue before the Vermont Supreme Court in this appeal was whether land dedicated to a public use could be condemned for another public use when the new use did not materially interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, appealed the Public Service Board’s order authorizing Vermont Gas Systems, Inc. (VGS) to condemn an easement through the park for the purpose of installing a natural gas pipeline. They argued the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. section 110(a)(2). The Supreme Court affirmed the Board’s decision, but remanded for a minor correction to the order relating to the terms of the easement. View "In re Vermont Gas Systems, Inc." on Justia Law

The Supreme Court granted in part a writ of prohibition requested by Relators - Rocky Ridge Development, LLC and Stanley Industries, Inc. - against common laws court judge Bruce Winters after Judge Winters issued a temporary restraining order against Relators enjoining them from operating in Benton Township until “they are in compliance with the Benton Township Zoning Resolution and the laws of the State of Ohio.” Benton Township had filed a compliant for declaratory and injunctive relief against Relators, alleging that the companies were violating the terms of a Land Application Management Plan (LAMP), were in violation of local zoning ordinances and state law, and were creating a public nuisance. The Supreme Court (1) granted a limited writ of prohibition to prevent the judge from deciding any issues that properly belong to the Environmental Review Appeals Commission, such as the wisdom or propriety of issuing the LAMP or Rocky Ridge’s compliance with the LAMP; but (2) denied the writ as to all claims involving alleged violations of Benton Township’s local ordinances or allegations that Rocky Ridge’s operations were creating a public nuisance. View "State ex rel. Rocky Ridge, LLC v. Winters" on Justia Law

South San Francisco approved a conditional-use permit allowing an office building to be converted to a medical clinic for use by Planned Parenthood Mar Monte. The city determined that its consideration of the permit was categorically exempt from the California Environmental Quality Act, Public Resources Code section 21000 (CEQA). Respect Life challenged the determination. The trial court and court of appeal upheld the determination, rejecting arguments that the permit’s consideration is not exempt from CEQA because the unusual circumstances exception to CEQA’s categorical exemptions applies. By pointing only to evidence that the permit will lead to protests, Respect Life failed to establish that the city prejudicially abused its discretion by making an implied determination that there are no unusual circumstances justifying further CEQA review. View "Respect Life South San Francisco v. City of South San Francisco" on Justia Law

This case presented a question of whether a large-scale excavation project constituted “mining” under the pertinent federal regulations that address mineral development on Indian land. When an entity engages in “mining” of minerals owned by the Osage Nation, a federally approved lease must be obtained from the tribe. The Osage Mineral Council (OMC), acting on behalf of the Osage Nation, appealed the award of summary judgment to Defendant Osage Wind, LLC (Osage Wind), arguing that Osage Wind engaged in “mining” without procuring a federally approved mineral lease. The Bureau of Indian Affairs (BIA) has defined “mining” as the “science, technique, and business of mineral development[.]” The Tenth Circuit held the term “mineral development” had a broad meaning, including commercial mineral extractions and offsite relocations, but also encompass action upon the extracted minerals for the purpose of exploiting the minerals themselves on site. The Court held Osage Wind’s extraction, sorting, crushing, and use of minerals as part of its excavation work constituted “mineral development,” thereby requiring a federally approved lease which Osage Wind failed to obtain. Accordingly, the Court reversed the award of summary judgment and remanded for further proceedings. View "United States v. Osage Wind" on Justia Law

Plaintiffs-Appellants WildEarth Guardians and Sierra Club challenged the Bureau of Land Management’s (BLM) decision to approve four coal leases in Wyoming’s Powder River Basin. Plaintiffs brought an Administrative Procedure Act (APA) claim arguing that the BLM failed to comply with the National Environmental Policy Act (NEPA) when it concluded that issuing the leases would not result in higher national carbon dioxide emissions than would declining to issue them. The district court upheld the leases. The Tenth Circuit held the BLM’s Environmental Impact Studies and Records Of Decisions were arbitrary and capricious because they omitted data pertinent to its choice with respect to issuing the leases, and thereby informing the public of its rationale. The Tenth Circuit remanded with instructions to the BLM to revise its Environmental Impact Statements (EISs) and Records of Decision (RODs). The Court did not vacate the resulting leases. View "WildEarth Guardians v. Bureau of Land Management" on Justia Law

Landowners from the Buffalo area appealed a district court judgment affirming the Department of Health's decision to issue Rolling Green Family Farms an animal feeding operation (AFO) permit. The landowners argued the Department erred by issuing Rolling Green an AFO permit and by failing to reopen the public comment period after Rolling Green provided further information to supplement its permit application. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Coon v. N.D. Dep't of Health" on Justia Law

In 2010, Omni, the landowner and developer, sought approval for construction of a shopping center on 11 acres of property zoned commercial, to consist of 10 retail buildings. Monterey County approved the project. An association of community members challenged the approval under the California Environmental Quality Act, Public Resources Code 21000 (CEQA). The trial court denied the petition as to the claimed CEQA violations but ordered an interlocutory remand to allow the county to clarify whether the project was consistent with the county’s general plan requirement that the project have a long-term, sustainable water supply. On remand, the Board of Supervisors clarified that the project “has a long-term sustainable water supply, both in quality and quantity to serve the development in accordance with the 2010 Monterey County General Plan Policies. The court entered judgment in favor of the county and Omni. The court of appeal affirmed, rejecting claims that the county violated the association’s right to procedural due process on interlocutory remand and violated CEQA because the water supply analysis was inadequate, the analysis of the project’s consistency with the general plan was inadequate, the environmental impact report’s traffic analysis was inadequate, and environmental review of Omni’s project was improperly segmented. View "Highway 68 Coalition v. County of Monterey" on Justia Law

About 99.5% of the Orion Project, 12.9 miles of pipeline looping that would transport an additional 135,000 dekatherms per day of natural gas through Pennsylvania, would run alongside existing pipelines. According to Riverkeeper, construction will lead to deforestation, destruction of wetland habitats, and other forms of environmental damage. Riverkeeper asserts that such damage can be avoided by building or upgrading a compressor station. The Army Corps of Engineers, which administers certain provisions of the Clean Water Act, 33 U.S.C. 1344(a), 1362(7) issued a Section 404 permit approving the project. The Third Circuit rejected Riverkeeper’s challenge. The Corps considered the compression alternative but rejected it for reasons supported by the record. While the compression alternative would disturb less land, its impact would be mostly permanent. The pipeline project would disturb more land, but its impact would be mostly temporary. In making a policy choice between those environmental tradeoffs, the agency’s discretion “was at its apex.” View "Delaware Riverkeeper Network v. United States Army Corps of Engineers" on Justia Law

Before appellants purchased Martins Beach, the public was permitted to access the coast by driving down Martins Beach Road and parking along the coast, usually upon payment of a fee. Because it is sheltered by high cliffs, Martins Beach lacks lateral land access. In 2008, appellants purchased Martins Beach and adjacent land including Martins Beach Road. A year or two later, appellants closed the only public access to the coast at that site. Surfrider, a non-profit organization dedicated to the preservation of access for recreation, brought suit. The trial court held the California Coastal Act (Pub. Res. Code, 30000–30900) applied and the appellants were required to apply for a coastal development permit (CDP) before closing public access. The court issued an injunction that requires appellants to allow public coastal access at the same level that existed when appellants bought the Martins Beach property. The court of appeal affirmed. Appellants‘ conduct is “development” requiring a CDP under section 30106 of the Coastal Act. Appellants‘ constitutional challenge to the Coastal Act‘s permitting requirement under the state and federal takings clauses is not ripe, The injunction is not a per se taking. The court affirmed an award of attorney fees to Surfrider. View "Surfrider Foundation v. Martins Beach 1, LLC" on Justia Law

Under the federal environmental laws, the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs. The United States owned national forest lands in New Mexico that were mined over several generations by Chevron Mining Inc. The question presented for the Tenth Circuit’s review was whether the United States is a “potentially responsible party” (PRP) for the environmental contamination located on that land. The Tenth Circuit concluded that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the United States is an “owner,” and, therefore, a PRP, because it was strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land. The Court also concluded the United States cannot be held liable as an “arranger” of hazardous substance disposal because it did not own or possess the substances in question. The Court reversed the district court in part and affirmed in part, remanding for further proceedings to determine the United States’ equitable share, if any, of the clean-up costs. View "Chevron Mining v. United States" on Justia Law