Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit
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The Sixth Circuit affirmed the order of the district court granting summary judgment in favor of the City of Powell, Ohio and dismissing Golf Village North LLC's claims brought under 28 U.S.C. 1983 for violating its procedural and substantive due process rights, holding that there was no error.Golf Village, a developer, sought to build a "residential hotel" on its property in Powell, Ohio but never filed the required zoning application. Instead, Golf Village requested that the City confirm the residential hotel was a permitted use of the property. The City directed Golf Village to file an appropriate application for "zoning Certificate approval" to receive an answer. Rather than reply, Golf Village sued the City. The district court granted summary judgment for the City. The Sixth Circuit affirmed, holding that Golf Village's procedural due process and substantive due process rights were not violated in this case. View "Golf Village North, LLC v. City of Powell, Ohio" on Justia Law

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Barber owns land adjacent to Mill Pond and the Mill Pond Dam (built 1836) in Springfield Township, Michigan. Parts of her property “run directly into the Mill Pond” and include parts of the pond itself. The Township and the County (Defendants) are jointly responsible for maintaining the Dam. In 2018, Oakland County conducted a study. The Township ultimately recommended removing the Dam. Defendants hired engineering firms and allocated money to the project. A local newspaper article titled “Mill Pond Dam to be Removed Next Year,” ran in March 2021. Barber alleges that removing the Dam, among other things, will decrease her property value, interfere with her riparian rights, deprive her of her right to use and enjoy her land, physically damage her property, “will likely pollute, impair and destroy natural resources, including . . . surface water, wetlands, and wildlife and natural habitat,” and “may cause flooding and property damage.” She sought to enjoin the Dam-removal project, alleging that it would constitute a taking under the federal and Michigan constitutions and a trespass under Michigan law.The district court granted the Defendants judgment on the pleadings. The Sixth Circuit reversed, finding Barber’s claims ripe, and that she has standing to sue. She plausibly alleges that she faces a risk of “concrete” and “particularized” injuries. Plaintiffs may sue for injunctive relief even before a physical taking has happened. View "Barber v. Charter Township of Springfield, Michigan" on Justia Law

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The Rice family planned to annex their 80-acre farm into the Village of Johnstown and have it zoned for residential development. The Johnstown Planning and Zoning Commission rejected the Rice application at the preliminary stage. The family claimed that Johnstown had unlawfully delegated legislative authority to the Commission, violating its due process rights, and sought declaratory, injunctive, and monetary relief. The district court held that because the farm was not located in Johnstown, but in adjacent Monroe Township, the family lacked standing to bring its claim and granted Johnstown summary judgment.The Sixth Circuit reversed in part. Whatever the merits of the claim, the family has standing to bring it. Because the Johnstown ordinance has since been amended, claims for declaratory and injunctive relief are moot. Only the claim for damages survives. Establishing standing at the summary judgment stage requires “a factual showing of perceptible harm.” The family alleges that because of Johnstown’s unconstitutional delegation to the Commission, its zoning application was subjected to a standardless and conclusive review by allegedly private parties who acted for arbitrary reasons; they have shown a procedural injury. While a procedural right alone is insufficient to create Article III standing, the family’s procedural injury is tied to its economic interest in developing its property. Without the Commission’s approval, their development plans could not proceed; the family is no bystander. View "Rice v. Village of Johnstown, Ohio" on Justia Law

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The Army Corps of Engineers designed a stormwater diversion system for Pond Creek, which drains into a large watershed in the Louisville area. It included Pond Creek’s tributary, Fishpool Creek, and a nearby basin, Vulcan Quarry. The Corps suggested connecting the two through a spillway. The Corps partnered with Metro Sewer District (MSD). MSD filed an eminent domain action. The court awarded MSD only an easement over the quarry and refused to impose water treatment obligations on the easement. MSD’s stream construction permit from the Kentucky Natural Resources and Environmental Protection Cabinet did not require treatment of the water or cleaning up any pollutants.In 2000, the project was completed. South Side bought Vulcan Quarry in 2012 and claimed that MSD had exceeded its easement by diverting all of Fishpool Creek. In 2018, South Side sent MSD notice of its intent to sue for violations of the Clean Water Act’s (CWA) “prohibition on the dumping of pollutants into U.S. waters,” the easement, and Kentucky-issued permits. The district court dismissed certain claims as time-barred and others because the notice failed to identify sewage as a pollutant, provide dates the pollution took place, and describe the source of the pollution.The Sixth Circuit affirmed. MSD did not need a CWA discharge permit when it built the spillway and does not need one now. The waters of Fishpool Creek and Vulcan Quarry are not meaningfully distinct; the spillway is the kind of water transfer that is exempt from the permitting process. View "South Side Quarry, LLC v. Louisville & Jefferson County Metropolitan Sewer District" on Justia Law

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In Ohio, to place an advertising billboard on a highway, you must apply for a permit from the Ohio Department of Transportation (ODOT). Under the “compliance rule,” ODOT will not process a permit application if the applicant has outstanding fees, changes his billboard without prior approval from ODOT, or maintains an illegal advertising billboard. ODOT put Kenjoh’s billboard permits on hold under the compliance rule, alleging that Kenjoh was maintaining an illegal billboard.Kenjoh sued, asserting that the compliance rule was an unconstitutional prior restraint under 42 U.S.C. 1983. The district court dismissed his claims for damages and injunctive relief. The Sixth Circuit vacated. While the case was pending on appeal, the Ohio legislature amended a key definition in the statute, which changes how the regulation applies. Before the amendment, a person needed a permit from ODOT to erect a billboard that was “designed, intended, or used to advertise.” Now, a person needs a permit if he will be paid for placing a message on the billboard, regardless of the message. The court affirmed the grant of qualified immunity to an ODOT supervisor on a claim for damages despite the amendment, based on the law as it existed at the time of the official action. View "Kenjoh Outdoor, LLC v. Marchbanks" on Justia Law

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Canton’s 2006 Tree Ordinance prohibits the unpermitted removal, damage, or destruction of trees of specified sizes, with exceptions for agricultural operations, commercial nurseries, tree farms, and occupied lots smaller than two acres. If Canton issues a permit, the owner must replace removed trees on its own or someone else’s property or pay into Canton’s tree fund. For every landmark tree removed, an owner must replant three trees or pay $450. For every non-landmark tree removed as part of larger-scale tree removal, an owner must replant one tree or pay $300.In 2016, Canton approved the division of F.P.'s undeveloped property, noting the permitting requirement. The parcels were bisected by a county drainage ditch that was clogged with fallen trees and debris. The county refused to clear the ditch. F.P. contracted for the removal of the trees and debris and clearing other trees without a permit. Canton determined that F.P. had removed 14 landmark trees and 145 non-landmark trees. F.P. was required to either replant 187 trees or pay $47,898. F.P. filed suit under 42 U.S.C. 1983.The Sixth Circuit affirmed summary judgment for F.P. on its as-applied Fifth Amendment claim; although the ordinance, as applied to F.P., was not unconstitutional as a per se physical taking, it was unconstitutional as a regulatory taking and as an unconstitutional condition. Canton has not made the necessary individualized determination; the ordinance fails the “rough proportionality” required by Supreme Court precedent. View "F.P. Development, LLC. v. Charter Township of Canton" on Justia Law

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Golf Village owns, maintains, and administers a 900-acre planned community in Powell, including one of 11 separate lots in a commercial development. A 2003 “Declaration of Private Roads” refers to the use of private roads by each commercial lot owner, its employees, customers, and invitees. In 2010, one lot was transferred to the city for a municipal park. In 2018, the City began using three streets without Golf Village’s permission, removed a curb, and built a construction entrance. Golf Village sued (42 U.S.C. 1983), claiming that Powell has taken its property without just compensation or due process.The Sixth Circuit affirmed the dismissal of the suit. Golf Village did not establish the loss of its right to exclude; it could terminate the alleged taking by building a gate at the private street's entrance to ensure that everyone who drives on those streets is an invited guest. Under Golf Village’s analysis, any time the government took an action that made a property owner’s property more popular, regardless of what actions the property owner could take, there would be a taking. Any increased traffic, which may lead to additional maintenance costs, is merely a government action outside the owner’s property that causes consequential damages within. There are no material allegations that Golf Village cannot use and enjoy the private roads to the extent that it did before the City’s actions. View "Golf Village North, LLC v. City of Powell" on Justia Law

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For more than 50 years, the Trust has owned contiguous parcels on Garfield Road, Mentor, Ohio, comprising 16.15 acres near the terminus of Norton Parkway, a road completed in 2006 that connects Garfield Road to Center Street, which connects to I-90 via an interchange completed in 2005. According to the Trust, the interchange “has dramatically changed the character of the area" from rural residential to mixed-use, with industrial, office, commercial, medical, senior living and various residential uses. The Trust sought rezoning from “Single Family R-4” to “Village Green – RVG,” hoping to develop 40 single-family residences with five acres of open space. Without the rezoning, the Trust could develop 13 single-family residences. According to the Trust, its Echo Hill Subdivision plan is materially identical to a plan that the city approved for rezoning in 2017, the “Woodlands.” The Planning Commission recommended denial; the City Council adopted that recommendation. According to the Trust, this is the first time that the city has denied an application for rezoning to RVG since 2004.The Sixth Circuit reinstated certain claims. The Trust’s ownership of 16 acres is a sufficient property interest to support its takings claim. The Trust does not need to plead facts negating every possible explanation for the differential treatment between the Trust’s property and the Woodlands for its class-of-one equal-protection claim to survive a motion for judgment on the pleadings. View "Andrews v. City of Mentor" on Justia Law

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The Benalcazars purchased 43 acres in Genoa Township in 2001. The property sits at the northern end of the Township’s more developed areas and abuts the Hoover Reservoir. The parcel was zoned as Rural Residential; development would have required separate septic systems, clear-cutting, and multiple driveways. In 2018, the Benalcazars obtained rezoning of the property to a Planned Residential District, which permits higher density development. Township residents approved a referendum that prevented the amendment from taking effect, O.R.C. 519.12(H).The Benalcazars sued. In a settlement, the Township agreed to change the zoning designation; the Benalcazars agreed to reduce the proposed development from 64 homes to 56 homes, to provide more open space, and to increase the width of some lots. O.R.C. 505.07 provides “Notwithstanding . . . any vote of the electors on a petition for zoning referendum … a township may settle any court action by a consent decree or court-approved settlement agreement which may include an agreement to rezone.” The district court permitted objectors to intervene, dismissed the Benalcazars’ due process claims, but ruled that the Benalcazars stated a plausible equal protection claim, and approved the consent decree. The Sixth Circuit affirmed. The Benalcazars’ due process and equal protection claims are not “frivolous” but “arguable.” The district court had subject-matter jurisdiction and had the authority to approve a settlement. No other merits inquiry was required. View "Benalcazar v. Genoa Township" on Justia Law

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In April 2017, a tax foreclosure action was commenced against the then-owner of the Cincinnati property, Davis. The city was named as a defendant. Notice of a May 2018 order for a sheriff’s sale was served on the city on June 1, 2018. During 2017-2018, a building on the property was also the subject of administrative condemnation proceedings. The condemnation decision, dated July 16, 2018, was sent by certified mail to the then-owner, Davis. After the public hearing, but before the decision to demolish the building was made, Plaintiff was the successful bidder at the July 5 sheriff’s sale. A decree confirming the sale entered on July 17. A sheriff’s deed was issued and was recorded in August.Plaintiff was not aware of the demolition decision. On November 14, 2018, the city sent letters to Plaintiff summarizing the public nuisance proceedings and the decision to raze the building, requesting that Plaintiff respond within 10 days The letters were sent via certified mail but were never delivered to Plaintiff. The city made no subsequent efforts to provide notice to Plaintiff.The building was demolished on April 8, 2019. The city demanded $10,515.00 from Plaintiff for the costs of the demolition. The Sixth Circuit affirmed the rejection of Plaintiff’s claims under 42 U.S.C. 1983 and for trespass. Plaintiff was provided with “notice reasonably calculated, under all the circumstances,” of the pendency of the condemnation proceedings. The city did not need to obtain a warrant to demolish a vacant building that had been condemned by administrative proceedings which met due process requirements. View "Keene Group, Inc. v. City of Cincinnati" on Justia Law