Justia Zoning, Planning & Land Use Opinion Summaries

The University of Hawaii (UH) sought to construct an advanced solar telescope and observatory near the summit of Haleakala on Maui. Kilakila 'O Haleakala (KOH) opposed UH's conservation district use application to build on the project site to the Department of Land and Natural Resources (Department). KOH formally petitioned the Department for a contested case hearing on the application. Without either granting or denying KOH's petition, the Board of Land and Natural Resources (Board) voted at a regularly scheduled public board meeting to grant the permit. KOH filed an agency appeal. The circuit court dismissed the appeal for lack of jurisdiction because there had been no contested case hearing and concluded that KOH's appeal was mooted by the fact that the Board had subsequently granted KOH's request for a contested case hearing subject to a preliminary hearing on KOH's standing. The intermediate court of appeals (ICA) affirmed. The Supreme Court vacated the lower courts' judgments, holding that KOH's appeal was not moot and that a contested case hearing should have been held, as required by law and properly requested by KOH, on UH's application prior to the Board's vote on the application.View "Kilakila 'O Haleakala v. Bd. of Land & Natural Res." on Justia Law

In 1972 Koontz bought 14.9 undeveloped acres. Florida subsequently enacted the 1972 Water Resources Act, requiring a permit with conditions to ensure that construction will not be harm water resources and the 1984 Henderson Wetlands Protection Act, making it illegal to “dredge or fill in, on, or over surface waters” without a wetlands permit. The District with jurisdiction over the Koontz land requires that applicants wishing to build on wetlands offset environmental damage by creating, enhancing, or preserving wetlands elsewhere. Koontz decided to develop 3.7-acres. In 1994 he proposed to raise a section of his land to make it suitable for building and installing a stormwater pond. To mitigate environmental effects, Koontz offered to foreclose development of 11 acres by deeding to the District a conservation easement. The District rejected Koontz’s proposal and indicated that it would approve construction only if he reduced the size of his development and deeded a conservation easement on the larger remaining property or hired contractors to improve District wetlands miles away. Koontz sued under a state law that provides damages for agency action that constitutes a taking without just compensation. The trial court found the District’s actions unlawful under the requirements of Nollan v. California Coastal Commission and Dolan v. City of Tigard, that the government may not condition permit approval on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the demand and the effects of the proposed use. The court of appeal affirmed, but the Florida Supreme Court reversed. The U.S. Supreme Court reversed and remanded, holding that a governmental demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit. The Nollan/Dolan standard reflects the danger of governmental coercion in the land-use permitting context while accommodating the legitimate need to offset public costs of development through land use exactions. It makes no difference that the Koontz property was not actually taken. It does not matter that the District might have been able to deny Koontz’s application outright without giving him the option of securing a permit by agreeing to spend money improving public lands. Even a demand for money from a land-use permit applicant must satisfy the Nollan/Dolan requirements; there is a direct link between the demand and a specific parcel of real property. The Court rejected arguments that applying Nollan/Dolan scrutiny to money exactions will leave no principled way of distinguishing impermissible land-use exactions from property taxes, stating that its holding “will not work a revolution in land use law or unduly limit the discretion of local authorities to implement sensible land use regulations.” View "Koontz v. St. Johns River Water Mgmt. Dist." on Justia Law

Arkansas Game and Fish Commission owns and manages the Donaldson Black River Wildlife Management Area, 23,000 acres with multiple hardwood species and used for recreation and hunting. In 1948, the U.S. Army Corps of Engineers constructed Clearwater Dam upstream from the Area and adopted the Water Control Manual, setting seasonally varying rates for release of water from the Dam. From 1993-2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into peak timber growing season. The Commission objected that deviations adversely impacted the Area, and opposed a proposal to make deviations part of the permanent water-release plan. After testing, the Corps abandoned the proposed Manual revision and ceased temporary deviations. The Commission sued, alleging that the deviations caused sustained flooding during growing season and that the cumulative impact of the flooding caused destruction of Area timber and substantial change in the terrain, necessitating costly reclamation. The Claims Court judgment ($5,778,757) in favor of the Commission was reversed by the Federal Circuit, which held that government-induced flooding can support a taking claim only if “permanent or inevitably recurring.” The Supreme Court reversed and remanded. Government-induced flooding of limited duration may be compensable. There is no blanket temporary-flooding exception to Takings Clause jurisprudence and no reason to treat flooding differently than other government intrusions. While the public interests are important, they are not categorically different from interests at stake in other takings cases. When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence of a compensable taking, as are the degree to which the invasion is intended or the foreseeable result of authorized government action, the character of the land, the owner’s “reasonable investment-backed expectations,” and the severity of the interference. View "AR Game & Fish Comm’n v. United States" on Justia Law

Beginning in 1993 the U.S. Army Corps of Engineers implemented temporary deviations from its 1953 Water Control Manual in operating the Clearwater Dam, to protect agricultural and other uses. Efforts to update the Manual were eventually abandoned. The state sought compensation for "taking" of its flowage easement based on flooding of the 23,000-acre Black River Wildlife Management Area, which resulted in excessive timber mortality. The Court of Claims awarded more than $5.5 million in damages. The Federal Circuit reversed, reasoning that temporary flooding, which is not "inevitably recurring," does not amount to a taking, but, at most, created tort liability. In 2012, the Supreme Court reversed, holding that government-induced flooding can qualify as a Fifth Amendment taking, even if temporary in duration. On remand, the Federal Circuit affirmed the Claims Court, after addressing the issues noted by the Supreme Court: whether the injury was caused by authorized government action, whether the injury was a foreseeable result of that action, and whether the injury constituted a sufficiently severe invasion that interfered with the owner’s reasonable expectations as to the use of the land. View "AR Game & Fish Comm'n v. United States" on Justia Law

The issue before the Supreme Court in this case involved the validity of an amended rule from the Department of Ecology that reserved water from the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows these uses would impair established minimum in-stream flows necessary for fish, wildlife, recreation, navigation, scenic and aesthetic values. The Swinomish Indian Tribal Community (Tribe) sued, challenging the validity of Ecology's amended rule reserving the water. The trial court upheld the amended rule and dismissed the Tribe's petition. After its review, the Supreme Court concluded that Ecology erroneously interpreted the statutory exception as broad authority to reallocate water for new beneficial uses when the requirements for appropriating water for these uses otherwise cannot be met. "The exception is very narrow, however, and requires extraordinary circumstances before the minimum flow water right can be impaired." Because the amended rule exceeded Ecology's authority under the statute, the amended rule reserving the water was invalid under the Administrative Procedure Act (APA). View "Swinomish Indian Tribal Comm'y v. Dep't of Ecology" on Justia Law

Ownership of the Somerville property has changed many times. It has been used for manufacturing, for machining military parts during World War II, and as warehouses for commercial and industrial tenants, including JANR. The soil and the groundwater became contaminated, likely beginning in the 1940s, when a degreasing agent was dumped on the ground. Contamination worsened after 1983 when improper storage of hazardous waste in the JANR warehouse resulted in spills and leaks. Remedial actions may have contributed to the contamination. The current owner acquired the site in the 1980s. After several earlier suits concerning the contamination, the owner sued a former owner and the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, the New Jersey Spill Compensation and Control Act, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972, and the New Jersey Sanitary Landfill Facility Closure Act and Contingency Fund. The district court entered summary judgment rejecting the RCRA claim, held a trial, and determined that the owner, the prior owners, and the United States were each liable for costs of remediation under CERCLA and the Spill Act and allocated percentages. The Third Circuit vacated with respect to award of prejudgment interest and the RCRA claim against the former owners, but otherwise affirmed. View "Litgo NJ, Inc. v. Comm'r NJ Dep't Envtl. Prot." on Justia Law

Third Site is a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) site that was part of a larger area, under common ownership by the Bankerts, used for recycling industrial wastes. Cleanup initially focused on other sites, but in 1987 and 1992 consultants found concentrations of volatile organic compounds; Third Site was transferring pollutants to Finley Creek, which flows to Eagle Creek Reservoir, which supplies Indianapolis drinking water. The creek was realigned. In 1999, the EPA entered into an Administrative Order by Consent (AOC) with potentially responsible parties. Non-Premium Respondents agreed to undertake an Engineering Evaluation and Cost Analysis (EE/CA) of removal alternatives and to settle a trust to bankroll the EE/CA. Premium Respondents, allegedly de minimis contributors, were entitled to settle out with a one-time Trust contribution under 42 U.S.C. 9622(g). Non-Premium Respondents met their obligations. In 2002, the parties entered into a second AOC to perform work described by the Enforcement Action Memorandum: Non-Premium respondents had the same Trust obligations for removal efforts. The Bankerts are Non-Premium Respondents under both AOCs, but have not met their obligations. In 2008, the Trustees sued the Bankerts and their insurers, seeking cost recovery under CERCLA, 42 U.S.C. 9607(a), and Indiana law. One of the insurers argued that its successful litigation in connection with cleanup of the adjoining site precluded a finding of coverage. Entering summary judgment for the Bankerts, the district court construed the CERCLA claim as seeking contribution under 42 U.S.C. 9613(f), and barred by the statute of limitations, so that issues concerning the insurer were moot. The Seventh Circuit remanded reinstated claims under 42 U.S.C. 9607(a)(4)(B), to recover costs incurred under the 2002 AOC and against the insurer. On rehearing, the court clarified that a party responsible for contamination may obtain an immediately effective release from the EPA in a settlement, or it may obtain only a performance-dependent conditional covenant not to sue with an accompanying disclaimer of liability. Whether, and when, a given settlement “resolves” a party’s liability under 42 U.S.C. 9613(f)(3)(B) is case-specific and depends on its terms. In this case, the AOC did not provide for resolution upon entering into the agreement. View "Bernstein v. Bankert" on Justia Law

Petitioner WildEarth Guardians challenged an Environmental Protection Agency order that denied in part its petition for an objection to a Title V operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado (d/b/a Xcel Energy), for a coal-fired power station in Morgan County, Colorado. Petitioner argued that the permit should have included a plan to bring the station into compliance with the Clean Air Act. The EPA denied Petitioner's petition for an objection despite the EPA's issuing a citation to Public Service for violating the act in 2002. The EPA concluded that Petitioner's evidence failed to demonstrate a violation, and that the state agency adequately responded to Petitioner's comments before it issued the permit. Petitioner petitioned the Tenth Circuit on appeal. The Court saw no error in the EPA's persuasive interpretation of the demonstration requirement. Furthermore, the Court concluded the agency did not act arbitrarily or capriciously in concluding that Petitioner failed to demonstrate noncompliance with the Act. Therefore the Court affirmed the EPA's order denying in part the petition to object. View "WildEarth v. EPA" on Justia Law

Petitioner-Appellant Western Watersheds Project (WWP) challenged a Bureau of Land Management (BLM) decision to grant a 10-year grazing permit to LHS Split Rock Ranch, LLC for four federal public land allotments in central Wyoming. WWP asserted that BLM?s decision to grant the grazing permit was arbitrary and capricious because BLM had previously concluded that past grazing was a substantial cause of serious environmental degradation on the allotments. The district court granted summary judgment to BLM. WWP appealed. Finding that the agency did not act arbitrarily or capriciously, the Tenth Circuit affirmed. View "Western Watersheds Project v. BLM" on Justia Law

The Federal Highway Administration and the Indiana Department of Transportation decided to complete an Indiana segment of I-69, which will eventually run from Canada to Mexico. Environmentalists opposed the route and sued under the Clean Water Act, 33 U.S.C. 1344, which authorizes the Army Corps of Engineers to issue permits for discharge of dredged or fill material into navigable waters of the United States. A permit will be denied if there is “a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem,” 40 C.F.R. 230.10(a), or if the discharge “would be contrary to the public interest.” 33 C.F.R. 320.4(a)(1). The permit at issue allows six streams to be filled where the highway crosses them and permits destruction of wetlands. The environmentalists proposed, in the alternative, simply upgrading to federal interstate highway standards, and existing route. In an environmental impact statement, the Corps concluded that no less environmentally damaging alternative was practicable, that the project was not contrary to the public interest, that damage to wetlands would be modest and would be offset by creation of new wetlands. The Seventh Circuit affirmed, rejecting challenges to the environmental analysis. View "Hoosier Envtl. Council, v. U.S. Army Corps of Eng'rs" on Justia Law