Justia Zoning, Planning & Land Use Opinion Summaries

Real parties in interest Carlton and Raye Lofgren, as Trustees of the Lofgren Family Trust and the Lofgren 1998 Trust (the Lofgrens), sought a residential development permit to build six single-family homes on a parcel of just over 11 acres in Riverside. After respondent City of Riverside (the City) approved the permit and issued a negative declaration stating the development did not require environmental review under the California Environmental Quality Act (CEQA), Friends of Riverside’s Hills (FRH) filed a petition for a writ of mandate challenging that decision. FRH alleged the City was required to conduct a CEQA Environmental Impact Review (EIR) of the development because it violated certain land use provisions in the City’s municipal code. FRH also alleged the City abused its discretion by approving a project that violated its own land use provisions. The trial court denied FRH’s petition. The Court of Appeal found no evidence of the alleged land use violations, and affirmed the judgment. View "Friends of Riverside's Hills v. City or Riverside" on Justia Law

Plaintiff Rochester City Council appealed a superior court order affirming defendant City of Rochester Zoning Board of Adjustment’s grant of a variance to defendants Donald and Bonnie Toy. On appeal, the Council argued the trial court: (1) erred in affirming the ZBA’s decision to grant a variance to the Toys; and (2) unsustainably exercised its discretion in denying the plaintiff’s motions to expand the record. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Rochester City Council v. Rochester Zoning Board of Adjustment" on Justia Law

The Supreme Court held that Petitioner filed her petition for writs of mandamus and prohibition against the Board of Supervisors of Loudoun County in violation of Va. Code 8.01-271.1 and that an appropriate sanction against Petitioner is the costs and attorney’s fees incurred by Loudoun County in defending against this petition.Invoking the Court’s original jurisdiction, Petitioner filed a petition for writs of mandamus and prohibition against the County. The Court dismissed the petition and issued a rule to show cause why the Court should not impose sanctions against her due to her string of frivolous lawsuits relating to Petitioner’s challenges to Loudoun County’s authority over the property of the former Town of Waterford, an unincorporated municipal entity. The Supreme Court entered judgment in favor of the County in the amount of $4,377. View "Madison v. Board of Supervisors of Loudoun County" on Justia Law

Portersville Bay Oyster Company, LLC ("the Oyster Company"), and its members, filed suit against 4H Construction Corporation, Greystone Industries, LLC, and Christopher Blankenship, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources, and filed an interlocutory appeal challenging the trial court's order dismissing Commissioner Blankenship as a defendant in this action. Tensaw Land & Timber Company, Inc. ("Tensaw"), owned land fronting on Portersville Bay which it leased its statutory right to grow and to harvest oysters on the bottom in Portersville Bay to the Oyster Company. The Alabama Department of Conservation and Natural Resources ("the Department") grants shellfish aquaculture easements on state-owned submerged lands for the purpose of cultivating and harvesting shellfish, including oysters. The Department conveyed to the Corneliuses a shellfish aquaculture easement allowing them to raise oysters in cages above the area encompassed by one of the Tensaw leases. Subject to certain exceptions, the riparian landowner does not have the right to harvest oysters in elevated cages within 600 yards from the shoreline in front of the waterfront property; the shellfish aquaculture easement enables the oyster farmers to grow oysters in elevated cages in the area of the easement. The oysters grown elsewhere on the Tensaw leases were grown on the bottom. 4H Construction Corporation contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay ("the Marsh Island project"). According to the allegations of the complaint, the sediment and silt deposits have increased over time and are killing the oysters being farmed on those oyster beds. The Oyster Company sued the Commissioner alleging negligence and nuisance relating to the easement. The Commissioner moved to dismiss for failure to state a claim and improper venue; the trial court granted the motion to transfer but not the motion to dismiss. After filing an amended complaint, the trial court dismissed the amended complaint against the Commissioner. The Alabama Supreme Court determined that dismissal was made in error, and reversed the trial court's order. View "Portersville Bay Oyster Company, LLC v. Blankenship" on Justia Law

Respondent David Repko, the owner of two lots in Harmony Phase 2-D-1, commenced this action against the County alleging that the County negligently and grossly negligently failed to comply with or enforce its rules, regulations, and written policies governing its handling of a line of credit granted to a residential land developer in Harmony Township (part of Georgetown County, South Carolina). When the Developer began developing Harmony Phase 2-D-1 in 2006, the County determined it would allow the requirement of a financial guarantee to be satisfied by the Developer's posting of a letter of credit (LOC) to cover the remaining cost of completion of infrastructure. The South Carolina Supreme Court granted Georgetown County's petition for a writ of certiorari to review the court of appeals' decision in Repko v. County of Georgetown, 785 S.E.2d 376 (Ct. App. 2016). Georgetown County argued the court of appeals erred by: (1) construing the County Development Regulations as creating a private duty of care to Respondent David Repko; (2) holding the South Carolina Tort Claims Act1 (TCA) preempted certain language contained in the Regulations; (3) applying the "special duty" test; (4) finding Brady Development Co., Inc. v. Town of Hilton Head Island, 439 S.E.2d 266 (1993), distinguishable from this case; (5) reversing the trial court's ruling that the County was entitled to sovereign immunity under the TCA; and (6) rejecting the County's additional sustaining ground that Repko's claim was barred by the statute of limitations. The Supreme Court addressed only issue (5) and held the court of appeals erred in reversing the trial court's determination that the County was immune from liability under subsection 15-78- 60(4) of the TCA (2005); the Court therefore reversed the court of appeals and reinstated the directed verdict granted to the County by the trial court. View "Repko v. County of Georgetown" on Justia Law

Mason, an African-American Ohio resident sued against all 88 Ohio county recorders for violating the Fair Housing Act’s prohibition against making, printing, or publishing “any . . . statement” indicating a racial preference, such as a racially restrictive covenant. Mason’s complaint included copies of land records, recorded in 1922-1957, that contain racially restrictive covenants. There is no allegation that such covenants have been enforced since the 1948 Supreme Court decision prohibiting enforcement of such covenants. Mason maintains that permitting documents with restrictive covenants in the chain of title to be recorded or maintained and making them available to the public violated the Act. Mason alleges that defendants “discouraged the Plaintiff and others from purchasing real estate ... by creating a feeling that they ... do not belong in certain neighborhoods” and that defendants’ actions “damage and cloud the title to property owned by property owners.” Mason’s counsel stated that Mason became aware of the covenants while looking to buy property, a fact not contained in the complaint. The Sixth Circuit affirmed that Mason lacked standing. A plaintiff must show that he suffered a palpable economic injury distinct to himself; any alleged injury was not caused by the county recorders, who are required by Ohio statute to furnish the documents to the public; county recorders cannot redress the alleged harm, as they have no statutory authority to edit the documents. View "Mason v. Adams County Recorder" on Justia Law

After a challenge to its 2004 general plan, San Francisco, acting under court order, prepared an environmental impact report (EIR) pursuant to the California Environmental Quality Act (Pub. Resources Code 21000) and approved revisions of the housing element of its general plan. The 2009 Housing Element examined the type, amount, and affordability of new construction needed, as determined by the Association of Bay Area Governments, which determined that San Francisco’s fair share of the regional housing for January 2007 through June 2014 would be 31,190 units, or about 4,160 units per year. The stated goal was to “alleviate a tight housing market.” In certifying the EIR, the planning department notified the public that the 2009 Housing Element, by encouraging housing near transit lines, will have a single, significant, unavoidable environmental impact on transit that cannot be mitigated to a level of insignificance. Opponents filed a petition for writ of mandate challenging the adequacy of EIR. The trial court denied relief. The court of appeal affirmed. The EIR addresses mitigation measures proposed by the opponents. The Housing Element EIR adequately analyzed the impacts on water, traffic, land use, and visual resources by using the future conditions projected by ABAG, rather than analyzing the existing conditions. View "San Franciscans for Livable Neighborhoods v. City and County of San Francisco" on Justia Law

The Court of Appeal reversed the trial court's ruling that the city violated the California Environmental Quality Act (CEQA) because the city treated the creation of a new subzone as follow-on to its prior, initial approval of a Target store rather than as an entirely new "project" under CEQA. The court held that the city's ordinance should be examined under Public Resources Code section 21166, and that the city complied with CEQA in proceeding by way of an addendum to the prior environmental impact report because substantial evidence supported the city's finding that the specific plan amendment would not have any reasonably foreseeable environmental consequences beyond the construction of the Super Target store. The court also held that the ordinance constituted "spot zoning," but that it was permissible because the city did not abuse its discretion in finding that its amendment to the specific plan was in the public interest and compatible with the general plans of which it was a part. View "Citizens Coalition Los Angeles v. City of Los Angeles" on Justia Law

The Supreme Court held that the people of a county or city can challenge by referendum a zoning ordinance amendment that would bring the ordinance into compliance with a change to the county’s or city’s general plan, at least where the local government has other means available to make the zoning ordinance and general plan consistent.Cal. Gov. Code 65860(a) requires zoning ordinances to “be consistent with the general plan of the county or city.” When the general plan is amended without also changing the corresponding zoning ordinance, the city or county must amend the zoning ordinance within a reasonable time to make it consistent with the general plan. At issue was whether the people may challenge by referendum a zoning ordinance amendment that would bring the ordinance into compliance with a general plan, even though the referendum would temporarily leave in place a zoning ordinance that does not comply with the general plan. The Supreme Court held in this case that the Court of Appeal did not err in holding that a referendum can invalidate a zoning ordinance amendment to achieve compliance with a general plan amendment, where other general-plan-compliant zoning designations are available that would be consistent with a successful referendum. View "City of Morgan Hill v. Bushey" on Justia Law

Coal residuals, “one of the largest industrial waste streams,” contain myriad carcinogens and neurotoxins. Power plants generally store it on site in aging piles or pools, risking protracted leakage and catastrophic structural failure. Regulations implementing the 1976 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, were long delayed. The Environmental Protection Agency (EPA), facing public outrage over catastrophic failures at toxic coal residual sites, and directed by a federal court to comply with its obligations under RCRA, promulgated its first Final Rule regulating coal residuals in 2015, 80 Fed. Reg. 21,302. Opponents challenged that Rule under the Administrative Procedure Act and RCRA, which requires EPA to promulgate criteria distinguishing permissible “sanitary landfills” from prohibited “open dumps.” Each claim relates to how coal residuals disposal sites qualify as sanitary landfills. EPA announced its intent to reconsider the Rule. The D.C. Circuit denied the EPA’s abeyance motion; remanded as to pile-size and beneficial-use issues; vacated 40 C.F.R. 257.101, which allows for the continued operation of unlined impoundments and a provision that treats “clay-lined” units as if they were lined; found the Rule’s “legacy ponds” exemption unreasoned and arbitrary; rejected claims by industry members that EPA may regulate only active impoundments; found that EPA provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments; and held that EPA did not arbitrarily issue location requirements based on seismic impact zones nor arbitrarily impose temporary closure procedures. View "Utility Solid Waste Activities v. Environmental Protection Agency" on Justia Law