Justia Zoning, Planning & Land Use Opinion Summaries

Cal-Am, an investor-owned utility that supplies water to much of the Monterey Peninsula, was subject to a state order to cease its decades-long overuse of certain water sources. Cal-Am sought to comply by drawing seawater and brackish water from coastal aquifers for desalination. The California Public Utilities Commission (CPUC), acting under the California Environmental Quality Act (CEQA, Pub. Resources Code, 21050), certified a final environmental impact report (EIR), and granted Cal-Am a Certificate of Public Convenience and Necessity. The City denied Cal-Am coastal development permits to install the intake wells. Cal-Am appealed to the California Coastal Commission.The County approved a permit to construct the desalination plant in unincorporated Monterey County. Marina Coast Water District challenged that approval, arguing that the County violated CEQA by failing to prepare a subsequent or supplemental EIR and adopting an unsupported statement of overriding considerations, and violated its own general plan by approving a project that lacked a long-term sustainable water supply. The trial court ruled that the County was not required to prepare another EIR and did not violate its own general plan, but unlawfully relied on the water-related benefits of the desalination plant in its statement of overriding considerations without addressing the uncertainty introduced by the City’s denial of the coastal development permit. The court of appeal reversed; the County’s statement of overriding considerations was supported by substantial evidence and any remaining deficiency in the statement was not prejudicial. View "Marina Coast Water District v. County of Monterey" on Justia Law

Petitioner Pacific Gas and Electric Company (PG&E) sought extraordinary writ relief for the second time arising out of the parties’ ongoing efforts to clarify the standard of proof to be applied at trial on South San Joaquin Irrigation District’s (the District) right to take part of PG&E’s electric distribution system under the Eminent Domain Law. PG&E emphasized that it did not challenge the validity of the resolution of necessity adopted by the District. PG&E did challenge the District’s right to take its property on grounds that conflicted with various findings the District made in its resolution. Because these challenges were authorized by statute, PG&E could succeed at trial by essentially disproving one of these findings by a preponderance of the evidence. Further, the Court of Appeal agreed with PG&E that the superior court’s September 6, 2017 and November 28, 2022 orders erred in concluding that PG&E also needed to demonstrate the District abused its discretion in adopting its resolution of necessity. Therefore, the Court of Appeal issued a peremptory writ of mandate compelling the superior court to vacate its September 6, 2017 and November 28, 2022 orders, and enter a new order. View "Pacific Gas and Electric Co. v. Super. Ct." on Justia Law

Plaintiff Deer Creek Water Corporation filed suit against Oklahoma City and Oklahoma City Water Utilities Trust (together, the City) seeking a declaratory judgment that the City could not provide water service to a proposed development on land owned by Thomas and Gina Boling (together, the developers), who later intervened in the action. In support, Deer Creek invoked 7 U.S.C. § 1926(b), a statute that generally prohibited municipalities from encroaching on areas served by federally indebted rural water associations, so long as the rural water association made water service available to the area. The district court granted the developers’ motion for summary judgment after concluding that Deer Creek had not made such service available, and Deer Creek appealed. Although the Tenth Circuit rejected Deer Creek’s arguments related to subject-matter jurisdiction, the Court agreed that the district court erred in finding it dispositive that Deer Creek’s terms of service required the developers to construct the improvements necessary to expand Deer Creek’s existing infrastructure to serve the proposed development, reasoning that because Deer Creek itself would not be doing the construction, it had not made service available. The Court found nothing in the statute or in caselaw to support stripping a federally indebted rural water association of § 1926(b) protection solely because it placed a burden of property development on the landowner seeking to develop property. The district court therefore erred in placing determinative weight on Deer Creek’s requirement that the developers construct the needed improvements. The judgment was reversed and the case remanded for further proceedings on whether Deer Creek made service available. View "Deer Creek Water Corporation, et al. v. City of Oklahoma City, et al." on Justia Law

Utility companies responsible for a planned electric transmission line asked the Fish and Wildlife Service (FWS) to allow construction across the Upper Mississippi River National Wildlife and Fish Refuge alongside an existing road and railroad. Rural Utilities Service completed an environmental impact statement under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C). FWS adopted the statement and issued a right-of-way permit.While litigation was pending, the utility companies sought to slightly alter the route and asked FWS to consider a land exchange. FWS discovered that it had relied on incorrect easement documents in issuing its original determination. It revoked the determination and permit but promised to consider the proposed land exchange. The district court ruled in favor of the environmental groups but declined to enjoin ongoing construction of the project on private land outside the Refuge.The Seventh Circuit vacated in part, first rejecting a mootness argument. FWS has revoked the compatibility determination but has not promised never to issue a new permit. However, FWS’s current position does not meet the criteria of finality. Whatever hardship the plaintiffs face comes not from FWS’s promise to consider a land exchange but from the Utilities’ decision to build on their own land, so the district court erred in reviewing the merits of the proposed land exchange. Plaintiffs’ request for relief against the Utilities under NEPA likewise is premature. Adopting the environmental impact statement did not “consummate” the decisionmaking process. View "Driftless Area Land Conservancy v. Rural Utilities Service" on Justia Law

In White Deer Township, a four-mile gap in Verizon’s wireless coverage overlays Interstate 80; Verizon customers are likely to experience “dropped calls,” “ineffective call attempts,” and “garbled audio.” The area is within Bald Eagle State Forest. A 2000 Pennsylvania moratorium prohibits the construction of cell towers on state forest land, so Verizon’s options were limited. After considering several sites and antenna configurations, Verizon decided to construct a 195-foot monopole topped with a four-foot antenna on privately owned land, comprising 1.9 acres and containing a cabin, shed, pavilion, and privy. Verizon leased 0.0597 acres, in the northeast corner of the property for the tower.The Township then permitted cell towers that complied with a minimum permissible lot size of one acre; cell towers had to be set back “from lot lines and structures a distance equal to the height of the facility, including towers and antennas, plus 10% of such height.” The Zoning Board denied Verizon’s variance applications, finding that Verizon’s alleged hardship was insufficient because it was “not a hardship connected to the capacity for the property to be used reasonably, but rather, the hardship [was connected to Verizon’s] capacity to use the property as desired.” The Third Circuit affirmed summary judgment for Verizon. The denial had “the effect of prohibiting the provision of personal wireless services,” in violation of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(i)(II). View "Cellco Partnership v. White Deer Township Zoning Hearing Board" on Justia Law

The Supreme Court affirmed the decision of the Public Utilities Commission (PUC) denying the petition for a declaratory judgment filed by Block Island Power Company (BIPCo), holding that there were no grounds to overturn the PUC's decision.In 2009, the legislature enacted R.I. Gen. Laws 39-26.1-7 (the enabling act) authorizing the Town of New Shoreham Project. In 2017, BIPCo sought a declaratory judgment declaring that the enabling act required the costs for BIPCo's interconnection facilities and backup transformer to be socialized across all electric ratepayers in the state, not just those in the Town. The PUC issued a judgment against BIPCo. The Supreme Court affirmed, holding that the PUC's reading and application of the statute was without error. View "In re Block Island Power Co. Petition for Declaratory Judgment" on Justia Law

The Adorers, an order of nuns whose religious beliefs require them “to protect and preserve Earth,” own property in Pennsylvania. When Transco notified them that it was designing a 42-inch diameter interstate gas pipeline to cross their property, the Adorers explained that they would not sell a right-of-way through their property. Transco sought a certificate of public convenience and necessity. The Federal Energy Regulatory Commission (FERC) published notices and hosted open meetings to discuss the pipeline. The Adorers neither provided comments nor attended meetings. When FERC contacted the Adorers directly, they remained silent. Transco altered the pipeline’s route 132 times in response to public comment. FERC issued the requested certificate, which authorized Transco to use eminent domain to take rights-of-way 15 U.S.C. 717f(c)(1)(A). Transco sought an order of condemnation to take rights-of-way in the Adorers’ property. The Adorers failed to respond to the complaint.Days after the district court granted Transco default judgment, the Adorers sought an injunction under the Religious Freedom and Restoration Act (RFRA) 42 U.S.C. 2000bb-1(c). The Third Circuit rejected the Adorers’ contention that RFRA permitted them to assert their claim in federal court rather than before FERC. After the pipeline was put into service, the Adorers sought damages under RFRA. The Third Circuit affirmed the dismissal of the suit. To permit a party to reserve a claim, the success of which would imperil a FERC decision to certify an interstate pipeline, by remaining silent during the FERC proceedings and raising the claim in separate litigation would contravene the Natural Gas Act’s exclusive review framework. View "Adorers of the Blood of Christ United States Province v. Transcontinental Gas Pipe Line Co., LLC" on Justia Law

In 2010, Houston voters approved “Proposition One,” allowing the city to create a “Pay-As-You-Go” Dedicated Drainage and Street Renewal (DDSR) Fund. Perez and others filed an election contest while the city enacted the Drainage Fee Ordinance (DFO), creating a new public utility and requiring Houston to establish drainage fees “against all real property in the city subject to such charges” and “provide drainage for all real property in the city on payment of drainage charges unless the property is exempt.” The DFO based the drainage fees on the benefited property’s type and square footage. Failure to pay drainage fees carried various penalties.In 2015, the Supreme Court held that Proposition One’s ballot language was misleading, rendering the Amendment invalid. Perez then challenged Houston’s assessment, collection, and expenditure of the drainage fee. In 2018, Houston passed a new charter amendment curing many of the defects Perez alleged in the drainage fee ordinance. Perez was left with ongoing claims for reimbursement of the drainage fees she paid before 2018 and for an injunction against the future expenditure of fees collected before 2018. The Texas Supreme Court affirmed the dismissal of those claims but remanded to allow Perez to replead in light of intervening events. Perez’s claims required her to articulate a viable theory of the DFO’s illegality to overcome Houston’s governmental immunity; her only theory failed as a matter of law. View "Perez v. Turner" on Justia Law

Consumers Energy Company filed an action against Brian and Erin Storm, and Lake Michigan Credit Union, seeking to condemn a portion of the Storms’ property for a power-line easement. The Storms challenged the necessity of the easement under the Uniform Condemnation Procedures Act (UCPA). The trial court concluded that Consumers had failed to establish the public necessity of the easement on the Storms’ property and entered an order dismissing Consumers’ action and awarding attorney fees to the Storms. Consumers appealed that order as of right to the Court of Appeals. The Storms moved to dismiss the appeal for lack of jurisdiction, arguing that under MCL 213.56(6), Consumers could only appeal the trial court’s public-necessity determination by leave granted. The Court of Appeals initially denied the motion by order, but the order was entered without prejudice to further consideration of the jurisdictional issue by the case -call panel. The Court of Appeals case-call panel issued an opinion in which it agreed with the Storms that the Court of Appeals lacked jurisdiction; the Court of Appeals therefore dismissed the portion of Consumers’ appeal challenging the trial court’s determination of public necessity. Despite dismissing the public-necessity portion of Consumers’ appeal, the Court of Appeals addressed Consumers’ challenge to the trial court’s award of attorney fees and vacated the attorney-fee award. The Michigan Supreme Court determined the Court of Appeals should have considered the condemning agency’s appeal as of right and reached the ultimate question of whether the trial court erred by holding that there was no public necessity for the proposed acquisition. “Therefore, it is not yet apparent that the proposed acquisition was improper such that the property owners would be entitled to reimbursement so as to avoid being ‘forced to suffer because of an action that they did not initiate and that endangered, through condemnation proceedings, their right to private property.’” Accordingly, the Supreme Court vacated the analysis construing MCL 213.66(2) in Part III of the Court of Appeals’ opinion, and remanded to that court for further proceedings. View "Consumers Energy Company v. Storm" on Justia Law

The Supreme Court affirmed the judgment of the circuit court affirming the decision of the South Dakota Public Utilities Commission (PUC) approving the application filed by Crowned Ridge Wind II, LLC for a permit to construct a large-scale wind energy farm in northeast South Dakota, holding that there was no error.Several individual intervened in this case and objected to Crowned Ridge's application. After an evidentiary hearing, the PUC voted unanimously to approve Crowned Ridge's permit. The circuit court affirmed the issuance of the permit. The Supreme Court affirmed, holding that the intervenors failed to raise any meritorious issues upon which the PUC's final decision and order may be reversed or modified. View "Ehlebracht v. Crowned Ridge Wind II, LLC" on Justia Law