Justia Zoning, Planning & Land Use Opinion Summaries

Cottonwood Creek watershed was an area covering approximately 379 square miles in parts of Logan, Oklahoma, Canadian and Kingfisher Counties. The area was prone to flooding, and in March of 1962, Logan County Soil and Water Conservation District No. 9 (LCSWCD), Cottonwood Creek Water and Soil Conservancy District No. 11 (CCWSCD), and the United States Department of Agriculture (USDA), prepared a plan to alleviate dangers associated with uncontrolled water flow. One of the structures included in the work plan was Floodwater Retarding Structure No. 54 (FWRS 54). On September 24, 1962, D.C. and Odessa Fitzwater granted an easement (Fitzwater Easement) to CCWSCD. Years later, changes in safety criteria and the development of houses downstream compelled the USDA and Oklahoma Water Resources Board (OWRB) to recast FWRS 54 as a high hazard class (c) dam.3 This new classification was based on changes in safety criteria, the development of 26 houses downstream, and the potential for loss of life following a structural failure. In March of 2006, the USDA issued a written proposal calling for the rehabilitation of FWRS 54. The USDA watershed plan suggested multiple repairs and improvements to FWRS 54. Logan County Conservation District (LCCD) filed a declaratory action seeking permission to perform rehabilitation work on FWRS 54. The petition alleged the Fitzwater and Impoundment Easements vested LCCD with the right to complete the rehabilitation project. Property owners Phyllis Crowder and John White, Jr. answered and claimed that the proposed work did not fall within the scope of the original easements. Accordingly, Crowder and White maintained the rehabilitation project would lead to an improper taking of their land. Pleasant Oaks Lake Association (POLA) and individual homeowners also answered, alleging the project would constitute a taking requiring payment of compensation. LCCD filed a motion seeking summary judgment. The motion asserted LCCD was authorized to perform work on FWRS 54 based upon the unambiguous language contained in deeds establishing the Fitzwater and Impoundment Easements. The homeowners and the homeowners association appealed a judgment finding Conservation District was authorized to enter their respective properties to perform the rehabilitation work. The Supreme Court affirmed, finding that the plain language in the deeds creating the easements included a right to ensure the dam's structural integrity through a rehabilitation project. View "Logan County Conservation Dist. v. Pleasant Oaks Homeowners Ass'n" on Justia Law

Department of Environmental Protection (DEP) regulations require that those deemed to be liable after a spill of hazardous materials within a specified radius of a public water supply undertake cleanup and monitoring to ensure the spill does not pose a danger to that water supply, 310 Code Mass. Regs. 40.0801, 40.0810, 40.0993(3)(a), 40.1030(2)(e). A 2007 modification exempts "oil" from some requirements when specific conditions are met, 310 Code Mass. Regs. 40.0924(2)(b)(3)(a). Peterborough owns a now-vacant Athol property, within a protection area, where it operated a gasoline station for more than 10 years. In 1994, a release of leaded gasoline from a subterranean gasoline storage tank was detected in soil on the site. DEP required Peterborough to undertake supervised cleanup and monitoring activities. In 2008, after the oil exemption was established, Peterborough submitted a revised plan, stating that further remediation was not required because the entirety of the spill fell within the exemption's definition of "oil." DEP responded that the meaning of "oil" in the exemption does not include gasoline additives such as lead, but refers only to petroleum hydrocarbons naturally occurring in oils, so that a spill of leaded gasoline could not be completely excluded from further remediation. The trial court, on summary judgment, and the Massachusetts Supreme Judicial Court, upheld the DEP interpretation of the regulation as reasonable. View "Peterborough Oil Co., LLC v. Dep't of Envtl. Prot." on Justia Law

On July 4, 2004, the Upper Eagle Regional Water Authority (the “Authority”) diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River and delivered that water to the Cordillera area for beneficial use. On that date, there was a “free river” (meaning that there was no call on the Colorado or Eagle Rivers). Of the water diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to its Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”) and filed an application to make this amount absolute. The State and Division Engineers opposed the application, asserting that the Authority could not make its Junior Eagle River Right absolute when it owned another, more senior conditional water right, the SCR Diversion Point No. 1 water right (the “Senior Lake Creek Right”), decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The water court agreed with the Engineers, and held that the July 4, 2004, diversion had to be allocated first to the Senior Lake Creek Right. The Authority appealed, and the Colorado Supreme Court reversed, holding that where there was no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights was entitled to select which of its different, in-priority conditional water rights it wished to first divert and make absolute. "[T]he portfolio owner must live with its choice. Since it has chosen to make a portion of the Junior Eagle River Right absolute, the Authority may not now divert and use the Senior Lake Creek Right unless it demonstrates that it needs that water right in addition to the Junior Eagle River Right." View "Upper Eagle Reg'l Water Auth. v. Wolfe" on Justia Law

Peat mining companies sought a Clean Water Act, 33 U.S.C. 1311(a), 1362, permit from the Army Corps of Engineers, to discharge material onto wetlands on property that they own and hope to mine. The Corps issued a jurisdictional designation (JD) stating that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away. The district court dismissed their appeal for want of jurisdiction, holding that the JD was not a “final agency action for which there is no other adequate remedy,” 5 U.S.C. 704. The Eighth Circuit reversed. The Supreme Court affirmed. The Corps’ approved JD is a final agency action judicially reviewable under the Administrative Procedures Act. An approved JD clearly “mark[s] the consummation” of the Corps’ decision-making on whether particular property contains “waters of the United States.” It is issued after extensive fact-finding regarding the property’s physical and hydrological characteristics and typically remains valid for five years. The Corps describes approved JDs as “final agency action.” The definitive nature of approved JDs gives rise to “direct and appreciable legal consequences.” A “negative” creates a five-year safe harbor from governmental civil enforcement proceedings and limits the potential liability for violating the Act. An “affirmative” JD, like issued here, deprives property owners of the five-year safe harbor. Parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” The permitting process is costly and lengthy, and irrelevant to the finality of the approved JD and its suitability for judicial review. View "Army Corps of Eng'rs v. Hawkes Co." on Justia Law

This case arose out of a permit application to obtain a water right filed by the respondents, North Snake Ground Water District, Magic Valley Ground Water District and Southwest Irrigation District (“the Districts”), to appropriate water from Billingsley Creek on real property owned by appellant Rangen, Inc. After the Director of the Idaho Department of Water Resources denied the application in a final order, the Districts petitioned for judicial review. The district court set aside the Director’s final order. Rangen appealed. Rangen historically diverted water from Billingsley Creek. Before the Department ruled on the Districts’ April 2013 application, Rangen filed a competing application on February 3, 2014. Rangen’s application sought to divert 59 cfs from Billingsley Creek for fish propagation, with the same source and point of diversion elements as the Districts had requested. On January 2, 2015, Rangen’s application was approved for 28.1 cfs for fish propagation with a priority date of February 3, 2014. This permit had apparently not been challenged. Department employee James Cefalo presided over a hearing on the Districts’ application and subsequently issued a Preliminary Order Issuing Permit in which he found that the application was made in good faith, did not conflict with the local public interest, and otherwise satisfied the necessary requirements. Therefore, he approved a conditional permit authorizing the Districts to appropriate 12 cfs from Billingsley Creek for mitigation purposes with a priority date of April 3, 2013. Rangen filed a protest of the hearing officer’s preliminary order with the Director. After the parties briefed the issues, the Director subsequently issued a final order overturning the hearing officer’s decision and denying the application. The Director concluded that the Districts’ application was made in bad faith and that the application was not in the local public interest. The Districts petitioned for judicial review, asserting that the Director abused his discretion and exceeded his authority in denying their application. On judicial review, the district court set aside the Director’s final order, concluding that the application was neither made in bad faith nor counter to the local public interest. The district court also rejected Rangen’s arguments that the Districts’ application was incomplete or speculative and that mitigation is not a recognized beneficial use of water under Idaho law. Rangen appealed again. After review of the district court record, the Supreme Court concluded the district court did not err in its judgment and affirmed. View "Rangen, Inc v. North Snake Ground Water Dist." on Justia Law

Coyote Lake Ranch, about 40 square miles, in the Texas Panhandle, is used for agriculture, raising cattle, and hunting. It is primarily grass-covered sand dunes, with some is irrigated cropland. Water comes from the Ogallala Aquifer, the principal source of water for the Texas High Plains, including the City of Lubbock, about 90 miles southeast of the Ranch. In 1953, during “‘one of the most devastating droughts in 600 years,’” the Ranch deeded its groundwater to the city, reserving water for domestic use, ranching operations, oil and gas production, and agricultural irrigation, by one or two wells in each of 16 specified areas. In 2012, the city announced plans to increase water-extraction efforts on the Ranch, drilling as many as 20 test wells in the middle of the Ranch, followed by 60 wells across the Ranch. The Ranch objected that the proposed drilling would increase erosion and injure the surface unnecessarily. The court of appeal dissolved a temporary injunction entered in favor of the Ranch. The Supreme Court of Texas remanded, agreeing that an injunction “so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights” was an abuse of discretion. The court cited the accommodation doctrine as applicable to a interests in groundwater: a lessee has an implied right to use the land as necessary for production and removal of the resource, with due regard for the landowner’s rights. View "Coyote Lake Ranch, LLC v. City of Lubbock" on Justia Law

The Maryland Critical Area law establishes a cooperative program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic coastal bays has special protection against development that might cause environmental damage. Although the law allows a property owner to seek a variance, it places the burden of proof on the applicant to demonstrate that the applicant would suffer an “unwarranted hardship” without the variance and that granting the variance will not have an adverse environmental impact. Schwalbach sought a variance from a Worcester County ordinance that limits piers to 100 feet in length, in order to access navigable water from his waterfront property in a community where piers and boating are common. Schwalbach obtained necessary federal, state, and local environmental agency approvals. The County Board of Zoning Appeals granted the variance. The Circuit Court, the Court of Special Appeals, and the Maryland Court of Appeals upheld the approval.Schwalbach was not required to show that he would be denied all reasonable and significant use of his land without the variance, but rather that he would be denied a reasonable and significant use throughout the entire property. There was sufficient evidence to conclude that Schwalbach satisfied that standard and the standard that there be no adverse environmental impact from granting the variance. View "Assateague Coastal Trust v. Schwalbach" on Justia Law

This appeal was one of six related cases arising out of a proposed project to pump fresh groundwater from an underground aquifer in the Mojave Desert (the Project). The aquifer was located below real property owned by Cadiz, Inc. In this case, the Center for Biological Diversity, San Bernardino Valley Audubon Society, and Sierra Club, San Gorgonio Chapter (collectively, CBD), and the National Parks Conservation Association (National Parks) filed a petition for a writ of mandate in the trial court, challenging the approval of the Project under the California Environmental Quality Act (CEQA). The named respondents were the Santa Margarita Water District (as the lead agency for the Project); the Board of Directors of the Santa Margarita Water District; the County of San Bernardino, a responsible agency for the Project (the County); and the Board of Supervisors of the County of San Bernardino. The trial court denied the petition. On appeal, appellants contended: (1) Santa Margarita was improperly designated as the lead agency for the Project, and that this error so tainted the environmental review process that such designation requires preparation of a new environmental impact report (EIR); (2) the EIR's project description was inaccurate and misleading because the Project was described as a means of conserving water, but would not save from evaporation an amount of water equal to the amount being pumped from the aquifer over the life of the Project; (3) the EIR was misleading because it did not provide an accurate duration for pumping by the Project; and (4) the Project would pump more water from the aquifer than was contemplated by and discussed in the EIR. Having reviewed the EIR and related documents, the Court of Appeal concluded the trial court did not err in denying the application for a writ of mandate. View "Center for Biological Diversity v. County of San Bernardino" on Justia Law

This appeal was one of six related cases arising out of a proposed project to pump fresh groundwater from an underground aquifer in the Mojave Desert (the Project). The aquifer was located below real property owned by Cadiz, Inc. Delaware Tetra Technologies, Inc. filed a petition for a writ of mandate in the trial court, challenging a resolution by the San Bernardino County Board of Supervisors authorizing the execution of a memorandum of understanding (MOU) among the County, Cadiz, the Santa Margarita Water District, and the Fenner Valley Mutual Water Company. Delaware Tetra argued that the County improperly approved the Memorandum without having performed the necessary environmental review under the California Environmental Quality Act (CEQA). The trial court denied the petition for a writ of mandate, and Delaware Tetra appealed. The Court of Appeal concluded environmental review was not required before the County approved the Memorandum. Furthermore, the Court concluded the MOU did not violate either the County's relevant groundwater management ordinance or common law. Therefore, the Court affirmed. View "Delaware Tetra Tech. Inc. v. County of San Bernardino" on Justia Law

Boulder County chose to develop "the Bailey Farm" into a public open-space park which would feature several ponds formed from abandoned gravel pits filled with groundwater. The County had to replace out-of-priority stream depletions caused by evaporation from those ponds. To meet this obligation, the County filed an application for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and exchange. The water court dismissed the application without prejudice, and the County now appeals that judgment. The components of the County’s application were interdependent, such that approval of the application as a whole hinged on approval of the plan for augmentation, which in turn hinged on approval of the change of water rights. To ensure this change would not unlawfully expand the Bailey Farm's water rights, the County conducted a parcel-specific historical consumptive use (“HCU”) analysis of that right. The water court found this HCU analysis inadequate for several reasons and therefore concluded the County failed to carry its burden of accurately demonstrating HCU. The pivotal consideration in this case was whether the County carried its burden of proving HCU. Like the water court, the Supreme Court concluded it did not. The Court therefore affirmed the water court’s judgment on that basis. View "Cty. of Boulder v. Boulder & Weld Cty. Ditch Co." on Justia Law