Justia Zoning, Planning & Land Use Opinion Summaries

A group neighbors (Neighbors-Appellants) in the Town of Dorset appealed an Environmental Court decision that granted Applicant Bradford Tyler’s application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District. Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district. Applicant Tyler owns and resides on a 5.6-acre property located in the Village Commercial District (VC District) of Dorset. He filed for a zoning permit to construct a self-storage facility on his property. The Town Planning Commission issued written approval of applicant’s site development plan. Following this, the Town Zoning Administrator issued a zoning permit. Interested neighbors appealed to the Dorset Zoning Board of Adjustment, contending that applicant’s proposed self-storage facility is not a “retail sales/rentals” use, as required by the town’s Zoning Bylaws for development in the VC District. Neighbors, in response to applicant questioning the validity of a decision rendered by less than a majority of the Board, appealed to the Environmental Court. They asserted that, regardless of the majority vote issue, the earlier approval by the Zoning Administrator was erroneous and should be voided. Applicant cross-appealed, arguing that the Board’s denial was invalid and that the proposed facility was a permitted use in the VC District. The parties filed cross-motions for summary judgment on the question of whether a storage facility was permitted. The Environmental Court granted applicant’s motion and denied Neighbors’, holding that the proposed use was permissible as a “retail rental.” Upon review of the lower court's record and the applicable zoning statutes, the Supreme Court acknowledged the conflict created by a plain reading of the definition of "retail" in the statute: "[d]efining “retail” in terms of sales arguably creates a conflict when used to define “retail rentals” . .. Using the common understanding of the words involved, and in the context of the overall scheme and purpose of the VC District, it is clear that the Bylaws’ drafters intended “retail sales/rentals” to include only residential and small-scale commercial establishments trading in services or in goods, for sale and for rent, as opposed to renting storage space as applicant proposes." Accordingly, the Court reversed the decision of the Environmental Court.

Appellants the South Carolina Department of Health and Environmental Control (DHEC), Office of Ocean and Coastal Resource Management (OCRM), and the South Carolina Coastal Conservation League appealed a final order of the Administrative Law Court (ALC) that granted Respondent Jerry Risher's "critical area permit" application to construct a bridge over a portion of wetlands contained within his property on Fripp Island. Respondent owns less than a half-acre, half of which is "upland high ground" or build-able property. The remainder of the property partially surrounds the build-able portion and is composed of wetlands. One year prior to Respondent's purchase of the lot, his predecessor in title applied to the DHEC and was approved for a critical area permit to construct a vehicular bridge across the non-build-able wetland portion of the lot to connect with the nearest vehicular road. In 2006, Respondent began to construct a bridge similar to the one previously submitted and approved by his predecessor in title. To that end, Respondent submitted a permit application to OCRM. OCRM took the matter under advisement but ultimately denied Respondent's application based on its finding that the upland build-able portion of the lot qualified as a coastal island which was too small to allow bridge access. After exhausting DHEC's review options, Respondent filed a request for review by the ALC. A hearing was held, and the ALC issued an order reversing DHEC's denial of Respondent's permit request. DHEC appealed to the Supreme Court, arguing that there was insufficient evidence before the ALC to reverse its decision. Upon review of the briefs submitted and the applicable legal authority, the Supreme Court found substantial evidence sufficient to support the ALC's decision. The Court affirmed the ALC's decision in support of Respondent.

In 2000 the planning board approved a development and the developer began purchasing land. In 2002, the Department of Justice issued an opinion that the land could be sold without legislative action, although it was gained from the sea. Construction began; the developer invested $200 million. Because of protests, the legislature investigated and concluded that the developer lacked valid title. A 2007 Department of Justice opinion stated that the land belonged to the public domain. The governor suspended permits and froze construction. Pending a hearing, the developer filed a quiet title action. The Regulations and Permits Administration upheld suspension of construction. The Puerto Rico appeals court ordered the administration to hold an evidentiary hearing (which did not occur), but did not lift the stay on construction. The developer succeeded in its quiet title action; in 2008 construction resumed. The supreme court held that the developer's due process rights had been violated. The district court dismissed a suit under 42 U.S.C. 1983. The First Circuit affirmed. Although the plaintiff did state a procedural due process claim, the defendants are entitled to qualified immunity. The defendants were not on clear notice they they were required to hold a meaningful pre-deprivation hearing.

African-Americans residing near a contaminated landfill claim that municipalities knew that well water was contaminated, warned Caucasian families and provided alternate sources of water, but did not warn African-Americans. In their suit under the Equal Protection Clause, 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and state laws, a magistrate compelled testimony by plaintiffs' former counsel; the city asserted that, if plaintiffs consulted the attorney in 2000, the action is barred by the one-year statute of limitations. During a deposition, the attorney refused to answer some questions. The court granted a motion to compel. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Plaintiffs were not appealing a final judgment and did not qualify for interlocutory review under the Perlman exception or the collateral order doctrine. Immediate review is appropriate if an order conclusively determines a disputed issue separate from the merits that is too important to be denied review and will be effectively unreviewable on appeal from a final judgment. Privilege is important and the attorney is a disinterested non-party, so the contempt-citation avenue of review is practically foreclosed, but plaintiffs, asserting the privilege, ultimately can avail themselves of a post-judgment appeal that suffices to protect the rights of the litigants and preserve the vitality of attorney-client privilege.

An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.

As part of the cleanup of PCBs in Wisconsin's Fox River, the EPA filed suit against de minimus potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601). The district court approved a settlement and other PRPs appealed. The Seventh Circuit affirmed, holding that the government's estimate of fault was supported by the record and accounted for all sources of PCB discharge. The district court properly approved the settlement before making a divisibility determination.

The Indiana Department of Environmental Management (IDEM) ordered the company to remedy certain conditions at its solid waste dump in Goshen; the company moved the operation to Elkhart. Following complaints, IDEM found violations and entered into an agreement with the company. The company did not honor the agreement and IDEM filed suit. After their attempt to intervene in the state court suit was limited, residents filed suit under the Resource Recovery and Conservation Act (RCRA, 42 U.S.C. 6901), specifically differentiating their claims from those in the state suit. IDEM subsequently filed a second state suit. The district court dismissed. The Seventh Circuit reversed and remanded, holding that, excepting violation claims concerning âCâ grade waste that were part of the first IDEM lawsuit, the plaintiffs met the requirements of RCRA for bringing a citizen suit, so abstention should not apply to deny them a right created by Congress. While a citizens' violation action may not âbe commencedâ if the EPA or state agency âhas commenced and is diligently prosecuting a civil or criminal action,â the citizens' suit went beyond the scope of the first IDEM suit. The RCRA suit complements and does not conflict with state efforts.

A 1935 settlement gives the tribe specific irrigation rights in the Gila River. The government filed another water rights claim on behalf of the tribe in 1979, resulting in a 2006 Arizona Supreme Court decree that the 1935 decree resolved all of the tribe's rights under all theories and that federal court was the proper forum for interpretation and enforcement of that decree. The Court of Federal Claims dismissed a claim against the United States for failure to secure and protect the tribe's water rights. The Federal Circuit affirmed, finding the claim barred by the six-year limitations period in 28 U.S.C. 2501. Rejecting an argument that the tribe was not on notice of its harm until the 2006 decision, the court stated that the plain terms of the 1935 decree indicated that the tribe would have no further rights and that the government was representing multiple parties.