Justia Zoning, Planning & Land Use Opinion Summaries

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

Petitioner Town of Newington appealed a superior court order that granted summary judgment to the State through the the Pease Development Authority (PDA) and the New Hampshire Department of Environmental Services (DES). Before land from the former Pease Air Force Base was deeded to the PDA, the United States Air Force engaged in a series of environmental impact analyses required by federal law. Following several iterations of environmental documents and deed restrictions, PDA accepted title to the Pease AFB land in three title transfers between 1999 and 2005. Shortly thereafter, the Town began the process of designating prime wetlands within its borders pursuant to state law. Six wetlands were located within the former Pease base. DES initially "approved" the Town's request, but later clarified that it "did not purport to 'approve' the legality of the Town's designation of prime wetlands located within PDA boundaries, nor would the agency have statutory authority to do so." Several months later, as part of a proposed construction project on PDA land to expand an existing office building, an alteration of terrain permit application was filed with DES. The Town rejected, asserting that it involved fill within 100 feet of wetlands that the Town had designated as "prime" and, therefore, required a wetlands permit. DES disagreed. After the Wetlands Council dismissed its appeal for lack of jurisdiction, the Town filed a petition for declaratory and injunctive relief in superior court. The trial court concluded that PDA was not required to comply with the Town’s prime wetlands designations and, therefore, granted PDA and DES’s motion for summary judgment. Upon careful consideration of the superior court records and the deeds of the wetlands in question, the Supreme Court concluded that the DES' reservation when first 'approving' the six wetlands within the PDA did not confer the Town with standing to challenge any subsequent development. As such, the Court affirmed the superior court's grant of summary judgment. View "Town of Newington v. New Hampshire" on Justia Law

Plaintiffs, three environmental groups, brought suit in district court to challenge issuance of a permit authorizing the discharge of dredge and fill material into specified wetlands outside Tampa, Florida. Plaintiffs invoked three statutes: the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(C), the Clean Water Act (CWA), 33 U.S.C. 1311(a), 1362(7), and the Endangered Species Act (ESA), 16 U.S.C. 1536(a)(2). The district court issued a decision finding that defendants had not fully complied with its obligations under NEPA and the CWA, but rejected plaintiffs' ESA claim, granting summary judgment for plaintiffs on the first two claims and for defendants on the third. The court affirmed in part, reversed in part, and remanded, concluding that defendants did satisfy the demands of the three relevant statutes, except for failing to respond, in its treatment of the NEPA and ESA requirements, to a material contention as to the project's impact on an endangered species, the eastern indigo snake. View "Sierra Club, et al. v. Antwerp, et al." on Justia Law

The issue before the Supreme Court pertained to the Surface Mining Conservation and Reclamation Act and whether it preempted a provision in a local zoning ordinance that established a setback for mining activities from all residential structures. The zoning ordinance at issue, which was enacted by Adams Township in Cambria County after the effective date of the Surface Mining Act, permits mining activities in a district known as the Conservancy (S) District only by special exception. Hoffman Mining Company, Inc. (Hoffman Mining) sought to mine for coal on a 182.1-acre tract of land within the Adams Township Conservancy (S) District adjacent to the Village of Mine 42. Hoffman Mining requested a special exception mine which was denied by the Zoning Board. Hoffman Mining appealed to the Commonwealth Court, which affirmed the Zoning Board's denial. Upon review, the Supreme Court found that with enactment of the Surface Mining Act, the General Assembly did not expressly or impliedly preempt a local zoning ordinance that imposes a residential setback from mining activities. The Court did "not discern an intent of the General Assembly to completely deprive local zoning authorities of their MPC-enabled authority and responsibility for land use management and planning as applied to the location and siting of surface mining in their municipalities." Accordingly, the Court affirmed the order of the Commonwealth Court. View "Hoffman Mining Co., v. Zoning Hearing Board of Adams Twp." on Justia Law

The South Carolina Coastal Conservation League (League) and the South Carolina Department of Health and Environmental Control (DHEC) appealed an administrative law judge's (ALJ) order that allowed Respondent Kiawah Development Partners to construct erosion control devices in a critical zone on Captain Sam's Spit (Spit). Respondent owend a peninsula (Spit) which lies primarily south of Kiawah Island, surrounded on three sides by the Atlantic Ocean, Kiawah River and Captain Sam's Inlet which separates the Spit from Seabrook Island. For the past sixty years, the Spit has been "growing," accreting sand on the ocean side at a greater rate than it has been losing ground to erosion on the river side. Respondent leased oceanfront property near the neck to the Charleston County Parks and Recreation Commission, which operates Beachwalker Park there. Respondent sought a permit from DHEC to erect a 2,783 foot bulkhead/revetment combination along the Kiawah River, with the structure to begin at the neck, that is, at Beachwalker Park. DHEC authorized construction of the proposed erosion control device for 270 feet, beginning at Beachwalker Park, and denied the remaining portion of the request. Both the League and Respondent requested a contested case hearing before the ALJ, the League to protest the portion of the permit request which was granted, and Respondent to challenge the portion denied. The Appellants contended the ALJ failed to give the deference due DHEC's interpretation of the statutes and regulations, and further that he exceeded his authority in rewriting the permit, resulting in one with terms neither approved by DHEC nor sought by Respondent. Upon review of the ALJ's ruling and the applicable legal standards, the Supreme Court reversed and remanded, finding the ALJ's decision was "affected by numerous errors of law … beginning with the ALJ's misunderstanding of the applicable statutes, regulations, and public policies, and concluding with his erroneous effort to craft a new permit, one which has never been sought by respondent, nor reviewed by OCRM, and which he, in any case, lack[ed] the authority to issue." View "Kiawah Development v. So. Car. Dept. of Health & Environ. Cont." on Justia Law

The four-acre parcel is within the watershed of the Sawmill, which flows into the Smyrna River, then into the Delaware Estuary and to Delaware Bay. The Sawmill becomes tidal 2.5 miles from the property. In 1987, the Army Corps of Engineers categorized the site as wetlands, concluded that ¾ of an acre had been filled, and warned the owner that a permit was required to fill more than one acre. In 1993, the Corps found that he had continued to fill without a permit and ordered removal of 0.771 acres of fill or submission of a pre-discharge notification. In 1996, the government sued, under the Clean Water Act, 33 U.S.C. 1311(a). In 2006, the court entered judgment, imposing a $250,000 fine and requiring removal of 0.771 acres of fill. The Third Circuit remanded, in light of the 2006 Supreme Court decision, Rapanos v. U.S. On remand, the government presented expert evidence; the owner submitted an affidavit based on personal knowledge. The court granted the government summary judgment. The Third Circuit affirmed, rejecting an argument that the Corps has jurisdiction only over wetlands adjacent to navigable-in-fact waters. There is no genuine issue of Corps' jurisdiction; nothing in the affidavit addressed the effect on the chemical, physical, and biological integrity of downstream waters.

Petitioner Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed a district court judgment affirming in part and reversing in part a State Engineer order that determined there was an unauthorized dam on Petitioner's property in Walsh County and required Petitioner to construct a drainage ditch to maintain water impounded by the dam at a level of 1543.5 feet mean sea level. The primary issue in this case involved the determination of the natural elevation of land at the site of the dam for purposes of deciding if the land impounded sufficient water to necessitate a water or construction permit. Petitioner owned land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Petitioner dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service, the holder of wetland conservation easement for the slough, required Petitioner to restore the drained wetland. In 2009, Petitioner's neighbor filed a complaint with the State Engineer alleging an unauthorized dam existed on Petitioner's land. The neighbor claimed Petitioner had raised the height of the ditch plug above the slough's natural overflow elevation, which resulted in the impoundment of additional water in the slough without necessary water or construction permits. Upon review, the Supreme Court affirmed the district court's judgment in part, and reversed in part, and affirmed the State Engineer's order. Specifically, the Court found that the district court's decision pertaining to costs was "a boilerplate, conclusory statement awarding the State Engineer 'costs as allowed by law,' and the State thereafter caused entry of a judgment that awarded [the Engineer] costs" without any delineation of those costs, or discussion of whether costs are allowed. "Under our jurisprudence disfavoring piecemeal appeals, [the Supreme Court] conclude[d] the State Engineer's failure to include any further delineation for costs in the final judgment constitutes a waiver of any costs it may have been entitled to in a proceeding before a district court acting as an appellate court in an administrative proceeding." Accordingly, the Court reversed the district court's order pertaining to costs, and declined the State Engineer's request to remand for a determination of the costs, if any, to which it may be entitled in the Engineer's cross-appeal. The Court affirmed the district court's order in all other respects.

Defendant was convicted after a three-day jury trial of four counts of injecting fluids into deep wells without a permit, in violation of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300h-2(b)(2). Defendant was also convicted of one count of making a "materially false" statement in a "matter within the jurisdiction" of the United States, in violation of 18 U.S.C. 1001(a)(2). Defendant timely appealed. The court affirmed Counts One through Four under section 300h-2(b)(2) and held that the government was required to prove only that defendant willfully injected water into a well more than eighteen feet deep without a permit, knowing that a permit was required under Idaho law; the reference in 40 C.F.R. 147.650(a)(7) to specific provisions of Idaho law, including those applicable to permitting, make clear that the entire Idaho permitting process was approved and incorporated into the SDWA; and that section 300h-2(b)(2) did not exceed Congress' authority under the Commerce Clause. The court affirmed Count Five under section 1001(a)(2) where defendant made a false statement in a matter within the jurisdiction of the United States. The court held that the district court did not abuse its discretion in holding that its limiting instruction and the stipulation cured any possible prejudice that might have been caused by the three references to "waste" and brief display. The court also held that testimony from a supervisor at the Idaho Department of Agriculture was used for the purpose of showing that defendant injected fluids "willfully" and that the testimony was a small part of the evidence presented to the jury that defendant acted "willfully." Thus, if there was any error in presenting the testimony, the error was harmless. Accordingly, the court affirmed the judgment.