Justia Zoning, Planning & Land Use Opinion Summaries

After the San Francisco Planning Commission approved a final mitigated negative declaration for the owner’s proposed renovation of a residence, Kaufman, the owner of an adjacent property, appealed the matter to the San Francisco Board of Supervisors, which reversed the approval. The owner filed a petition for writ of mandate against the City and County, the Board, the Planning Commission, and the Planning Department, naming Kaufman as a real party in interest. In response,Kaufman filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) law (Code Civil Procedure 425.16), arguing that the petition arose from his protected petitioning activity and lacked minimal merit. The trial court granted the anti-SLAPP motion and awarded Kaufman attorney fees as the prevailing party. The court of appeal reversed. The trial court erred in finding the mandamus petition arose from Kaufman’s protected conduct, as the activities that form the basis for the petition’s causes of action are all acts or omissions of the Board. That Kaufman’s administrative appeal preceded or even triggered the events leading to the petition’s causes of action against the Board did not mean that the petition arose from Kaufman’s protected conduct within the contemplation of the anti-SLAPP law. View "Durkin v. City and County of San Francisco" on Justia Law

The United States Forest Service, together with the Montana Department of Natural Resources and Conservation, managed the rapidly changing fire conditions and actively communicated with the public about the Lolo Peak Fire. After the fire, various affected landowners sued the federal government. They claim that the Forest Service is liable under the Federal Tort Claims Act (“FTCA”) for failing to comply with its duty to consult with them about fire-suppression activities on and near their properties. Specifically, they argued that the Forest Service was required to consult with landowners through individualized—rather than public—communication channels. The district court granted summary judgment for the Forest Service, holding that it lacked subject matter jurisdiction because the property owners’ claims were barred by the discretionary function exception.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the United States. The panel applied the requisite two-step test to determine whether the discretionary function exception applied. First, the panel examined whether there was a federal statute, regulation, or policy that prescribed the Forest Service’s course of action regarding the agency’s communications with the landowners during the Lolo Peak fire in the Bitterroot Mountains in Montana in July 2017. The panel held that the Forest Service’s specific communications with the landowners exceeded the incident decision’s instruction and involved an element of judgment or choice sufficient to satisfy the first step of the discretionary function exception. The panel held that the Forest Service’s decisions about notifying the landowners about fire-suppression activities likely to occur on and near their properties were susceptible to a policy analysis. View "MICHELLE SCHURG, ET AL V. USA" on Justia Law

The First Circuit affirmed the judgment of the district court dismissing the claim brought by the Back Beach Neighbors Committee alleging that the Town of Rockport, Massachusetts committed a class-of-one equal protection violation by failing adequately to enforce local rules against scuba divers at Back Beach, holding that the district court did not err.The Committee brought this complaint claiming that the Town's failure consistently to enforce various rules as to Back Beach led to the singling out of the beach as a place "to welcome divers." The district court granted the Town's motion to dismiss as to six of the complaint's eight counts and then granted summary judgment for the Town on the remaining counts. The First Circuit affirmed, holding that because the Committee did not plausibly allege the existence of similarly-situated comparators, its class-of-one equal protection claim failed. View "Back Beach Neighbors Committee v. Town of Rockport" on Justia Law

The Pueblo of Jemez filed a quiet title action against the United States relating to lands comprising the Valles Caldera National Preserve (“Valles Caldera”), which the United States purchased from private landowners in 2000. In an earlier appeal, the Tenth Circuit Court of Appeals reviewed the district court’s ruling dismissing the case for lack of subject-matter jurisdiction. The Court reversed and remanded, finding that an 1860 federal grant of title to private landowners would not extinguish the Jemez Pueblo’s claimed aboriginal title. Upon remand, the Jemez Pueblo could establish that it once and still had aboriginal title to the lands at issue. After a twenty-one-day trial, the district court ruled that the Jemez Pueblo failed to establish ever having aboriginal title to the entire lands of the Valles Caldera, failing to show that it ever used the entire claimed land to the exclusion of other Indian groups. The Jemez Pueblo moved for reconsideration under Federal Rule of Civil Procedure 59(e). But rather than seek reconsideration of its complaint’s QTA claim to the entire Valles Caldera, the Jemez Pueblo shrunk its QTA claim into claims of title to four discrete subareas within the Valles Caldera: (1) Banco Bonito, (2) the Paramount Shrine Lands, (3) Valle San Antonio, and (4) the Redondo Meadows. The district court declined to reconsider all but Banco Bonito, on grounds that the Jemez Pueblo hadn’t earlier provided the government notice of these claims. Even so, being thorough, the court later considered and rejected those three claims on the merits. Of the issues raised by the Jemez Pueblo on appeal, we primarily address its challenge to the district court’s ruling that the Jemez Pueblo lost aboriginal title to Banco Bonito. The Tenth Circuit concluded the district court erroneously interpreted "Jemez I" in ruling that the Jemez Pueblo lost aboriginal title to Banco Bonito. So in accordance with longstanding Supreme Court precedent, and by the district court’s findings, the Court held the Jemez Pueblo still had aboriginal title to Banco Bonito. The Court reversed in part the denial of the Jemez Pueblo’s motion for reconsideration, and vacated in part and remanded with instructions to the district court. The Court affirmed in all other respects. View "Pueblo of Jemez v. United States, et al." on Justia Law

A 2008 Michigan initiative decriminalized marijuana for medical purposes; a 2016 law afforded legal status to medical marijuana dispensaries. In Detroit, the Buildings, Safety Engineering, and Environmental Department (BSEED) screened applications for such facilities. The code prohibits locating such a facility in a drug-free zone–an area “within 1,000 radial feet of the zoning lot” containing any one of several "sensitive places," including a school.Genie applied to run a medical marijuana distribution facility on Mack Avenue in Detroit. BSEED denied the application at the screening stage because the proposed site was in a drug-free zone based on a lot (in the neighboring community of Grosse Point Park) on which St. Clare School sits. Genie unsuccessfully challenged the determination through state administrative and judicial channels. Detroit deemed the St. Clare’s “zoning lot” to include land where the parish church sits (the church and school have separate lots of record), all of which is listed under a single tax parcel number.Genie sued in federal court, arguing that Detroit erred in measuring the distance between the proposed Genie site and St. Clare’s while approving other sites in violation of the equal protection and due process guarantees. The Sixth Circuit affirmed summary judgment in favor of Detroit. Genie had no property interest in its proposed facility. Detroit applied the same method of measurement to each comparable applicant. Although Genie cited two applications that were approved, many applications were rejected on that basis. View "Green Genie, Inc. v. City of Detroit" on Justia Law

In 1985, Palo Alto established the Commercial Downtown zoning district with parking regulations that allowed for “payment of an in-lieu monetary contribution to the city to defray the cost” of new, off-site parking spaces for “sites which would otherwise be precluded from development due to parking constraints.” In 1995, the city recognized the need to further mitigate insufficient downtown parking facilities and established an in-lieu parking fee for new, nonresidential development in the “University Avenue parking assessment district.” City staff has periodically submitted “five-year findings” on the parking fund, consistent with the Mitigation Fee Act (Gov. Code, 66000).The plaintiffs, developers who paid the fees as a condition of approval of a building project, sued, seeking a refund of their unexpended fees. The city argued that the fee was not subject to the Mitigation Fee Act; that the five-year finding and refund provisions did not apply; that, even if the Act did apply, the claim was barred by the statute of limitations; and that it complied with the Act’s requirements by belatedly adopting five-year findings.The court of appeal reversed the trial court, ordering a refund of the plaintiffs’ unexpended fees. The fee is subject to the Act, and the action is not time-barred. The failure to timely make five-year findings triggered the refund provision. Section 65010(b), does not require that plaintiffs make an independent showing of prejudice for a violation of section 66001(d) View "Hamilton and High, LLC v. City of Palo Alto" on Justia Law

Brothers Newton and Jason Wells (plaintiffs) and their mother Beverly Wells, filed suit in September 2017 seeking to partition real property they held as tenants in common with defendant Pall Spera in Stowe, Vermont. The court granted plaintiffs’ summary-judgment motion on the question of whether they were entitled to partition as a matter of law, and issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report. Ultimately, the commissioners concluded that physical division would cause great inconvenience to the parties. Finding division inequitable, the commissioners awarded defendant first right of assignment due to his ability to buy out plaintiffs’ interest immediately, while plaintiffs required a loan to do so, and because partition would constitute the dissolution of the partnership agreement, which defendant had wished to continue. Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii). Plaintiffs’ main argument was that the commissioners exceeded their mandate as provided by the order of reference in concluding that partition would result in zoning violations, and the commissioners erred on that question as a matter of law. In the alternative, they argued the equities favored assigning the property to them. The court denied the motion, including plaintiffs’ request for a hearing, and adopted the report without qualification. It reasoned that plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). Finding no reversible error in this decision, the Vermont Supreme Court affirmed. View "Wells et al. v. Spera" on Justia Law

Pursuant to Mississippi Code Sections 61-9-1 to -9 (Rev. 2022) the City of Jackson passed an ordinance on August 6, 2019, to incorporate land in Rankin County that surrounded what was known as the Jackson-Medgar Wiley Evers International Airport. Rankin County, the City of Pearl and the City of Flowood appealed the ordinance; the trial court declared the ordinance void because Jackson had failed to obtain the consent and approval of the Rankin County Board of Supervisors before passing the ordinance. Jackson appealed to the Mississippi Supreme Court claiming that the trial court erred by finding that approval of the Rankin County Board of Supervisors was required. The Supreme Court found the ordinance void and affirmed the circuit court's judgment. View "City of Jackson v. Cities of Pearl & Flowood, & Rankin County, Mississippi" on Justia Law

To improve a stretch of U.S. Route 22 near Altoona, the Pennsylvania Department of Transportation (PennDOT) sought two right-of-way easements from for new drainage pipes, covering less than one-tenth of an acre of Merritt's property. PennDOT initiated condemnation and over Merritts’s objections, acquired title to and possession of the easements. With no success in that state-court proceeding, Merritts filed a federal suit, claiming that PennDOT’s acquisition of the easements and the compensation offered for them violated the U.S. Constitution and Pennsylvania law.The district court dismissed all claims with prejudice, some based on Eleventh Amendment immunity, the remainder under “Burford abstention,” which protects “complex state administrative processes from undue federal interference.” The Third Circuit affirmed in part. The “Ex parte Young” exception to Eleventh Amendment immunity does not allow Merritts’s claims for injunctive and declaratory relief against the PennDOT officials in their official capacities because he does not seek prospective relief from an ongoing violation. Merritts’s section 1983 claims for damages against the PennDOT officials in their individual capacities for allegedly unlawfully acquiring the easements for PennDOT cannot be dismissed under Burford abstention; his claims for damages premised on the allegedly unlawful acquisition of the easements meet the conditions for dismissal under the Rooker-Feldman doctrine, but his claims concerning the denial of just compensation do not. The dismissals on Eleventh Amendment and Rooker-Feldman grounds should have been without prejudice. View "Merritts v. Richards" on Justia Law

The Supreme Court affirmed the order of the Land Use Commission (LUC) denying Petitioners' petition for a declaratory order challenging the construction of the Thirty Meter Telescope (TMT), holding that Haw. Rev. Stat. 205-2(e) does not authorize the Commission to exclude or enforce certain land uses within conservation districts.Petitioners in this case sought to use the LUC's districting authority in a manner that would compel the removal of all astronomy facilities located within the Astronomy Precinct. The LUC denied the petition, and Petitioners appealed. The Supreme Court affirmed, holding (1) this Court had jurisdiction to directly review Petitioners' appeal; (2) the LUC correctly determined that it lacked jurisdiction to issue the requested declaratory orders; and (3) Petitioners were not entitled to relief on their remaining claims of error. View "In re Petition of Ku'ulei Higashi Kanahele" on Justia Law