Justia Zoning, Planning & Land Use Opinion Summaries

The Land Use Regulation Commission (LURC) and Plum Creek Timberlands, LLC and Plum Creek Land Company (collectively, Plum Creek) appealed from a judgment entered in the business and consumer docket vacating LURC's approval of a rezoning petition and concept plan submitted by Plum Creek for land it owned in the Moosehead Lake region. LURC and Plum Creek contended that the court erred by concluding that LURC violated its procedural rules by failing to hold an additional evidentiary hearing on amendments to Plum Creek's petition. Forest Ecology Network, RESTORE: The North Woods, and the Natural Resources Council of Maine cross-appealed, arguing primarily that LURC erred in approving the petition because several aspects of the concept plan conflicted with statutory requirements. The Nature Conservancy and Forest Society of Maine intervened. The Supreme Court vacated the judgment and remanded for the entry of a judgment affirming LURC's decision, holding that LURC did not violate its procedural rules and did not otherwise err by approving the rezoning petition and concept plan. View "Forest Ecology Network v. Land Use Regulation Comm'n" on Justia Law

Appellants challenged the Agencies' execution of a tiered review process related to planning improvements to Virginia's Interstate 81 corridor. The district court rejected appellants' challenge which alleged various constitutional and statutory violations. On appeal, appellants claimed that the Agencies were attempting to foreclose consideration of environmentally friendly alternatives for specific sections of I-81 by choosing a corridor-wide improvement concept in the first stage of the review process. The court held, however, that appellants misapprehended the Agencies' position where the Agencies planned to comply with the Stipulation in this case and the National Environment Policy Act (NEPA), 42 U.S.C. 4321 et seq., by considering site-specific alternatives to the corridor-wide concept in subsequent stages. Because there was no actual dispute here, and because appellants could not show any injury or imminent threat of injury, this suit was not justiciable. Accordingly, the court dismissed the appeal. View "Shenandoah Valley Network v. Capka, et al." on Justia Law

Petitioners, Northeast Coalition of Neighborhoods and Coalition for a Livable Future, sought direct review under Oregon Laws 1996, chapter 12, of a decision by the Land Use Board of Appeals (LUBA) that affirmed in relevant part a land use final order by Respondent METRO. The land use final order at issue concerned the Columbia River Crossing Project, which (among other things) would extend a light rail line from Oregon to Washington. Petitioners contended Metro either exceeded its statutory authority in adopting the order or that its decisions in the order were not supported by substantial evidence. Respondents Metro and Tri-County Metropolitan Transit District of Oregon (TriMet) opposed the petition. Finding that Petitioners failed to show that METRO either exceeded its statutory authority or made a decision about the highway improvements that was not supported by substantial evidence on the whole record, the Supreme Court affirmed. View "Weber Coastal Bells v. METRO" on Justia Law

Plaintiffs, several residents of the Town of Cooks Valley, brought a declaratory judgment action against the Town to declare the Town's nonmetallic mining ordinance invalid because the ordinance did not have county board approval. The circuit court granted summary judgment in favor of Plaintiffs. At issue on appeal was whether the mining ordinance was a zoning ordinance. If the ordinance was not a zoning ordinance, county board approval was not required. The Supreme Court reversed the circuit court, holding that, even though the ordinance at issue had some similarities to traditional zoning ordinances, it was not to be classified as a zoning ordinance. Rather, it was a non-zoning ordinance adopted under the Town's police power. View "Zwiefelhofer v. Town of Cooks Valley" on Justia Law

Plaintiff purchased approximately 4,000 acres of land in Titus County, Texas, for use as a mitigation bank to offset the environmental impact of more destructive land use. 33 U.S.C. 1344. Before the purchase, the Army Corps of Engineers communicated that it then saw no impediments to creating the mitigation bank. After the Texas Water Development Board announced that the Reservoir would become less viable (if not infeasible) if the mitigation bank were approved, the Corps denied the application because the mitigation bank overlapped with the proposed Reservoir and it concluded that plaintiff's land might not exist in perpetuity. The district court dismissed a claim for just compensation. The Federal Circuit affirmed, holding that plaintiff did not have a cognizable property interest in obtaining a mitigation banking instrument. The claim was essentially that plaintiff detrimentally relied on representations made by the Corps. View "Hearts Bluff Game Ranch v. United States" on Justia Law

In this action, the trial court granted summary judgment against a locality, holding it liable to landowners under the State Water Control Law, Va. Code Ann. 62.1-44.2 through -44.34:28, in particular Code 62.1-44.34:18(C) of the Oil Discharge Law, for the contamination of groundwater by leachate and landfill gas. The Supreme Court reversed the trial court's judgment, holding that the trial court erred in awarding summary judgment to the landowners and finding the locality liable under the Oil Discharge Law, as the Oil Discharge Law does not apply to the passive, gradual seepage of leachate and landfill gas into groundwater. View "Campbell County v. Royal" on Justia Law

Sussex County filed a complaint against DNREC asserting that it exceeded its constitutional and statutory authority in promulgating the PCS Regulations, which were promulgated in 2008 to effect DNREC's Pollution Control Strategy for the Inland Bays Watershed. At issue was the validity of Sections 4 and 5 of the PCS Regulations. The Superior Court held that Section 4, which established the water quality buffer, and the related stormwater control provisions of Section 5, constituted "zoning," and thus directly conflicted with the Sussex County Zoning Ordinance. The Superior Court held those portions of the PCS Regulations were void and ordered that they be stricken. The court concluded that DNREC's "no zoning" argument was contradicted by language in those portions of the PCS Regulations that were at issue. Therefore, the judgment of the Superior Court was affirmed. View "DE Dept. of Natural Resources & Environmental Control v. Sussex County, et. al." on Justia Law

Petitioners Louise Lauer and Darrell de Tienne separately owned properties that border a lot owned by Mike and Shima Garrison. Through a Land Use Petition Act (LUPA) petition, Petitioners challenged a fish and wildlife variance granted to the Garrisons by Pierce County (the County) to build a single family residence within the protective buffer zone of a stream that runs across the Garrisons' property. The issue before the Supreme Court was whether the Garrisons' rights vested in 2004 when they submitted their building application. The Garrisons also raised questions about the standing and timeliness of Petitioners' claim, as well as whether the relevant critical area regulation even applies to the Garrisons' shoreline property. Upon review, the Court held that Petitioners properly petitioned the superior court for review and that, because the Garrisons' building permit application contained misrepresentations of material fact, the Garrisons' rights did not vest in 2004. View "Laurer v. Pierce County" on Justia Law

Defendant Town of Madison Planning Board appealed and Plaintiffs Thomas and Margaret Ettinger cross-appealed a superior court's decision which held that a private session of the Board violated the state's Right-to-Know Law (RTK) and denied Plaintiffs' request for attorney fees. In June 2009, the Pomeroy Limited Partnership (Pomeroy) received conditional approval from the Board to convert the buildings on its property to a condominium ownership form and to convey part of the property to the Nature Conservancy. In January 2010, Plaintiffs, whose property abuts the Pomeroy property, requested a public hearing to allow them to challenge the approval of the condominium plan. The Board scheduled a public hearing for March 3, 2010, to consider whether to grant final approval of the Pomeroy application. Plaintiffs' attorney appeared at that hearing. At the scheduled time of the hearing, the Board went into a private session for thirty minutes in which they read emails from the Board's attorney, a memorandum that summarized legal advice and letters from Plaintiffs' attorney. The Board then reopened the hearing and then after hearing Plaintiffs' attorney on the matter, granted final approval of the Pomeroy application. Plaintiffs sued alleging the Board violated the RTK law. The superior court agreed that the private session violated the RTK law, but refused to invalidate the Board's approval of the Pomeroy application. Upon review, the Supreme Court found that while the Board's written communications from its counsel may be protected from disclosure under the RTK law, the meeting itself need not have been closed to the public. Further, the Court affirmed the trial court's denial of Plaintiffs' attorney fees: "[w]e cannot find that … the Board should have known that the nonpublic session violated the Right-to-Know Law" to therefore entitle them to fees. View "Ettinger v. Town of Madison Planning Board " on Justia Law

Petitioners Thomas Morrissey, Dorothy Sears, Reginald Rogers, John Quimby, Michael O’Donnell, Jonathan Chamberlain, Patricia Reynolds, Richard and Barbara Sanders, Margaret Russell, and Robert and Judith Dupuis, appealed a superior court order that granted motions to dismiss filed by Respondents New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department (collectively referred to as the State), and Town of Lyme (Town). Post Pond is in Lyme, held in trust by the State for public use. Petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. The Town owns property on the east side of the Clay Brook wetlands as well as a contiguous parcel with frontage on Post Pond, which consists of a recreation area. In May 2009, Petitioners filed a petition in equity and writ of mandamus alleging that the Town's removal of beaver dams in the Pond that controlled the natural mean high water mark adversely affected their properties and disrupted the entire Clay Brook wetlands ecosystem. Upon review, the Supreme Court found that Petitioners' writ allegations were insufficient to state a claim for taking or nuisance against the Town, and that the trial court did not err in dismissing their claims. Further, the Court concluded that Petitioners failed to plead a claim entitling them to declaratory relief. View "Morrissey v. Town of Lyme" on Justia Law