Justia Zoning, Planning & Land Use Opinion Summaries

The Supreme Court affirmed in part and reversed in part the judgment of the circuit court reversing the decision of the Deuel County Board of Adjustment granting special exception permits (SEP) to Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy South, LLC (Deuel Harvest) to develop two wind energy systems in the County, holding that the circuit court erred by invalidating the votes of two Board members.Following a public hearing, the Board unanimously approved the SEPs. Appellees, several residents of Deuel County and neighboring counties, petitioned for a writ of certiorari, asserting that several Board members had interests or biases disqualifying them from considering the permits. The circuit court invalidated the votes of two Board members due to disqualifying interests and overturned the Board's approval of the SEPs. The Supreme Court reversed in part and reinstated the Board's unanimous vote in approving the SEPs, holding that the circuit court erred in disqualifying the two members from voting on the SEPs. View "Holborn v. Deuel County Board of Adjustment" on Justia Law

Since 2011, Jonesboro’s wastewater system has spewed sewage onto Stringer’s property and into her home during heavy rains. Stringer repeatedly complained to the town and its mayor, then brought a “citizen suit” under the Clean Water Act (CWA), 33 U.S.C. 1365, with constitutional claims under 42 U.S.C. 1983 for the uncompensated taking of her property and the mayor’s retaliation. Stringer ran against the mayor in 2014 and claims he retaliated by ignoring her pleas, getting the town to sue her frivolously, and refusing to provide sandbags. The Louisiana Departments of Health (LDOH) and Environmental Quality (LDEQ) have long known about the problems. LDEQ sent the town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH issued a compliance order about the discharges on Stringer’s property, imposed mandatory ameliorative measures, and assessed a daily fine. The district court dismissed, finding that the CWA prohibits such suits when a state is addressing the problem through “comparable” state law and finding her section 1983 claims untimely under Louisiana’s one-year prescriptive period. The Fifth Circuit affirmed as to the section 1983 claims. Stringer was long aware of the underlying facts and failed to sue within a year. The Fifth Circuit reversed in part. The enforcement action to which the court pointed—the state health department’s enforcement of the sanitary code—is not “comparable” to the CWA under circuit precedent. View "Stringer v. Town of Jonesboro" on Justia Law

This appeal stemmed from an application for a conditional water storage right filed by United Water and Sanitation District, a special water district formed in Elbert County, Colorado, acting through the United Water Acquisition Project Water Activity Enterprise (“United”). United sought to secure various water rights in Weld County. United’s original applications were consolidated in a set of four cases. In response to a motion for determination of questions of law from opposer Farmers Reservoir and Irrigation Company (“FRICO”) in the consolidated cases, the District Court for Water Division 1 (“water court”) concluded that United’s applications failed to demonstrate non-speculative intent to appropriate water. In response to this ruling, United withdrew its applications in the consolidated cases and, a week later, filed a new application in Case No. 16CW3053 for a conditional water storage right that was the subject of this appeal. Pertinent here, United sought to appropriate water for use in a proposed residential development in another county. In support of its new application for a conditional storage right, United offered a new, purportedly binding contract with the landowners of the proposed development. United also claimed for the first time that its status as a special district qualified it for the governmental planning exception to the anti-speculation doctrine. FRICO opposed United's application, and the water court determined United's new application likewise failed to demonstrated non-speculative intent to appropriate water. The water court found that United was acting as a water broker to sell to third parties for their use, and not as a governmental agency seeking to procure water to serve its own municipal customers. Consequently, the water court held, United did not qualify for the governmental planning exception to the anti-speculation doctrine. United appealed. But concurring with the water court's judgment, the Colorado Supreme Court affirmed: United was ineligible for the governmental planning exception to the anti-speculation doctrine. View "United Water & Sanitation Dist. v. Burlington Ditch Reservoir & Land Co." on Justia Law

Plaintiff R.L. Vallee, Inc. appealed the Environmental Division’s decision granting an Act 250 permit to the Vermont Agency of Transportation (VTrans) for a highway project involving the reconfiguration of an interstate exit. Vallee argued the court applied the incorrect standard in analyzing phosphorus discharges under Act 250 Criterion 1, and improperly evaluated the evidence of phosphorus and chloride discharges under Criterion 1. The Vermont Supreme Court found the Environmental Division applied the correct legal standard to evaluate discharges, and properly considered the evidence before it in determining that the project complies with Criterion 1. View "In re Diverging Diamond Interchange Act 250 (R.L. Vallee, Inc.)" on Justia Law

National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border with Mexico. The U.S. Department of Homeland Security (DHS) planned to build a segment of the border wall through the Center. The Association sued, citing the Fourth and Fifth Amendments and two environmental statutes. DHS has not analyzed the environmental impact of border wall-related activities at the Center (42 U.S.C. 4332(2)(C)), nor consulted with other federal agencies about how to minimize the impact of those activities on endangered species. An appropriation act subsequently prohibited funding for border fencing at the Center.The district court dismissed all claims, citing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1103, as stripping jurisdiction over the statutory claims because the DHS Secretary waived the application of environmental laws with respect to the construction of roads and physical barriers at the Center.The D.C. Circuit affirmed in part, first holding that the claims were not moot and that jurisdiction over the statutory claims was not stripped by IIRIRA, nor was review channeled directly to the Supreme Court. The court held that DHS’s waiver determination defeats the statutory claims, that the Association failed to state a Fourth Amendment claim of unreasonable seizure of property it acknowledges to be “open fields,” but that the Association stated a procedural due process claim under the Fifth Amendment. View "North American Butterfly Association v. Wolf" on Justia Law

Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems.The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990. View "Nanouk v. United States" on Justia Law

In a consolidated appeal, defendant County of Placer decided to partially abandon public easement rights in Mill Site Road, a road that connected two adjacent residential subdivisions: Martis Camp (previously known as Siller Ranch) and the Retreat at Northstar (the Retreat). As originally planned, the connection between Martis Camp and the Retreat was intended for emergency access and public transit vehicles only. When the developments were approved in 2005, the environmental documents assumed there would be no private vehicle trips between Martis Camp and the Retreat or the Northstar community beyond; Martis Camp residents wishing to drive to Northstar-at-Tahoe (Northstar) would use State Route (SR) 267. However, sometime in or around 2010, residents of Martis Camp began using the emergency/transit connection as a shortcut to Northstar. In 2014, after efforts to have county officials stop Martis Camp residents from using the emergency access road failed, the Retreat owners filed an application requesting that the County Board of Supervisors (the Board) abandon the public’s right to use Mill Site Road. In 2015, the Board approved a partial abandonment, thereby restricting use of Mill Site Road to Retreat property owners and emergency and transit vehicles, consistent with what was described and analyzed in the prior planning documents. Then lawsuits followed. Plaintiffs, the Martis Camp Community Association (MCCA) and three individual Martis Camp property owners, appealed the denial of their petitions for writ of mandate challenging the County’s abandonment of Mill Site Road, as well as the dismissal (on demurrer) of the Martis Camp Homeowners’ inverse condemnation claim. After review, the Court of Appeal affirmed the portion of the judgment and order concluding that the County did not violate the Brown Act or the statutory requirements for abandonment of a public road, and affirmed the dismissal of the Martis Camp Homeowners’ inverse condemnation claim, but reversed and remanded as to plaintiffs’ California Environmental Quality Act (CEQA) claim. View "Martis Camp Community Assn. v. County of Placer" on Justia Law

Under California Public Resources Code section 21167.6, documents "shall" be in the record in a CEQA challenge to an environmental impact report (EIR). The County of San Diego (County), as lead agency for the Newland Sierra project, no longer had "all" such correspondence, nor all "internal agency communications" related to the project. If those communications were by e-mail and not flagged as "official records," the County's computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed e-mails and related documents to prepare the record of proceedings, the County refused to comply. After referring the discovery disputes to a referee, the superior court adopted the referee's recommendations to deny the motions to compel. The referee concluded that although section 21167.6 specified the contents of the record of proceedings, that statute did not require that such writings be retained. In effect, the referee interpreted section 21167.6 to provide that e-mails encompassed within that statute were mandated parts of the record - unless the County destroyed them first. The Court of Appeal disagreed with that interpretation, "[a] thorough record is fundamental to meaningful judicial review." The Court held the County should not have destroyed such e-mails, even under its own policies. The referee's erroneous interpretation of section 21167.6 was central to the appeals before the Court of Appeal. The Court issued a writ of mandate to direct the superior court to vacate its orders denying the motions to compel, and after receiving input from the parties, reconsider those motions. View "Golden Door Properties, LLC v. Super. Ct." on Justia Law

The Imperial Irrigation District (District) supplied water from the Colorado River system to California's Imperial Valley, holding its water rights in trust for the benefit of its users, and was empowered by California law to manage the water supply for irrigation and other beneficial uses. In 2013, the District implemented an equitable distribution plan with an annual water apportionment for each category of users (2013 EDP). Michael Abatti presently owns and farms land in the Imperial Valley. Abatti, as trustee of the Michael and Kerri Abatti Family Trust, and Mike Abatti Farms, LLC (collectively, Abatti) filed a petition for writ of mandate to invalidate the 2013 EDP on the grounds that, among other things, the farmers possess water rights that entitle them to receive water sufficient to meet their reasonable irrigation needs—and the plan unlawfully and inequitably takes away these rights. Abatti's position, fairly construed, is that farmers are entitled to receive the amounts of water that they have historically used to irrigate their crops. The District contended the farmers possessed a right to water service, but not to specific amounts; the District was required to distribute water equitably to all users, not just to farmers; and that the 2013 DEP allowed the District to do so, while fulfilling its other obligations, such as conservation. The superior court granted the petition, entering a declaratory judgment that prohibited the District from distributing water in the manner set forth in the 2013 EDP, and required the District to use a historical method for any apportionment of water to farmers. The District appealed, and Abatti cross-appealed an earlier order sustaining the District's demurrer to his claims that the District's adoption of the 2013 EDP constitutes a breach of its fiduciary duty to farmers and a taking. The Court of Appeal concluded the farmers within the District possessed an equitable and beneficial interest in the District's water rights, which was appurtenant to their lands. "Although the superior court acknowledged certain of these principles, its rulings reflect that it took an unduly narrow view of the District's purposes, thus failing to account for the District's broader obligations, and took an overly expansive view of the rights of farmers." The superior court was directed to enter a new judgment: (1) granting the petition on ground that the District's failure to provide for equitable apportionment among categories of water users constituted an abuse of discretion; and (2) denying the petition on all other grounds, including as to declaratory relief. View "Abatti v. Imperial Irrigation Dist." on Justia Law

The Baptistes filed suit on behalf of a class of homeowner-occupants and renters (about 8,400 households) claiming interference with the use and enjoyment of their homes and loss in property value caused by noxious odors and other air contaminants emanating from the 224-acre Bethlehem Landfill. The Third Circuit reversed the dismissal of the suit. While everyone in the community—including visitors, commuters, and residents—may suffer from having to breathe polluted air in public spaces, the Baptistes have identified cumulative harms that are unique to residents, such as the inability to use and enjoy their outdoor spaces. These injuries are above and beyond any injury to the public; the Baptistes sufficiently alleged a “particular damage” to sustain a private claim for public nuisance. They also stated a claim for private nuisance. Pennsylvania law does not reject a private nuisance claim on the ground that the property affected was too far from the source of the alleged nuisance. Nor does Pennsylvania law condition an individual’s right to recover private property damages on a nuisance theory on the size of the nuisance or the number of persons harmed, as opposed to the nature of the rights affected or the degree of the harm suffered. The question remains whether the Baptistes have sufficiently pleaded a cognizable injury to state an independent negligence claim. View "Baptiste v. Bethlehem Landfill Co." on Justia Law