Justia Zoning, Planning & Land Use Opinion Summaries

Plaintiffs Yvonne Reid and Serena Wong sued defendants the City of San Diego (City) and the San Diego Tourism Marketing District (TMD) in a putative class action complaint, challenging what they allege is "an illegal hotel tax." The trial court sustained Defendants' demurrer without leave to amend on statute of limitations and other grounds. The Court of Appeal affirmed, concluding some of the causes of action were time-barred and the remainder failed to state facts constituting a cause of action. View "Reid v. City of San Diego" on Justia Law

Santa Rosa decided to turn a 69-bed defunct hospital into the "Dream Center" to house 63 people, ages 18-24, and provide individual and family counseling, education and job training, a health and wellness center serving the community for ages five through 24, and activities for residents, including a pottery throwing area, a half-court basketball area, and a garden. Neighbors challenged the project under the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), arguing that noise impacts required preparation of an environmental impact report (EIR). The city issued a negative declaration, indication that the project would not have a significant environmental effect and an EIR would not be required. On appeal, the neighbors focused on traffic noise from the south parking lot adjacent to the Dream Center, and noise from the residents’ outdoor recreational activities. The court of appeal affirmed, finding no substantial evidence that there would be a significant noise impact from those sources. The predicted parking lot noise impacts are largely hypothetical, given the city’s parking restrictions in that lot; neighbors' impact calculations were based on data from a different project that cannot reasonably be applied to the Dream Center. An argument that the noise from residents’ outdoor activities would constitute a significant environmental impact was also based on a flawed analysis. View "Jensen v. City of Santa Rosa" on Justia Law

Between 1853 and 1995, the Port Gamble Bay facility in Kitsap County, Washington operated as a sawmill and forest products manufacturing facility by Pope & Talbot and its corporate predecessors. Close to four decades after Puget Mill Co., predecessor to Pope & Talbot, began operating the sawmill, the legislature authorized the disposal of certain occupied state-owned aquatic lands, including the tidal lands within Port Gamble Bay. The Washington Department of Natural Resources (DNR) issued the first lease for Pope & Talbot's use of the Port Gamble Bay submerged lands in 1974. In 1985, Pope & Talbot transferred 71,363 acres of its timberlands, timber, land development, and resort businesses in the State of Washington to Pope Resources, LP, which in turn leased the mill area to Pope & Talbot. Pope & Talbot ceased mill operations in 1995. Pope sought to develop their Port Gamble holdings for a large, high-density community with a marina. However, the Port Gamble site was contaminated, in part from the operation of sawmill buildings to saw logs for lumber, operation of chip barge loading facilities and a log-transfer facility, particulate sawmill emissions from wood and wood waste burning, in-water log rafting and storage, and creosote treated pilings placed throughout the bay to facilitate storage and transport of logs and wood products. After entering into a consent decree with the Washington Department of Ecology in 2013 for remediation of portions of the site exposed to hazardous substances, Pope/OPG filed a complaint in 2014 seeking a declaration that DNR was liable for natural resources damages and remedial costs, and for contribution of costs. The Superior Court granted summary judgment in favor of DNR in 2016. The Court of Appeals reversed, holding that DNR was an "owner or operator" with potential liability under the Washington Model Toxics Control Act (MTCA). DNR appealed, and the Washington Supreme Court reversed, finding DNR was neither an "owner" nor an "operator" of the Port Gamble Bay facility for purposes of MTCA. View "Pope Res., LP v. Dep't of Nat. Res." on Justia Law

Ark. Code Ann. 14-56-202 confers upon cities of the first class the exclusive power to issue or refuse to issue buildings permits and to regulate the building of houses, thereby denying such power to the cities of the second class, despite the general powers listed in Ark. Code Ann. 14-56-201.Petitioners (“the Bank”) filed a complaint against the City of Elkins, Arkansas (“the City”) challenging the City’s moratorium on the issuance of building permits for lots within a partially developed residential subdivision. Petitioners sought a declaratory judgment that the City lacked statutory authority to regulate the building of houses or to issue building permits for houses. The case was removed to the federal district court, which certified the question answered above to the Supreme Court. The Supreme Court answered the certified question in the affirmative. View "First State Bank v. City of Elkins" on Justia Law

Petitioners Mary Allen, Fred Ward, and other interested parties, appealed the decision of the New Hampshire Site Evaluation Committee (Committee) authorizing respondent Antrim Wind Energy, LLC (Antrim Wind), to construct and operate nine wind turbines in the town of Antrim. Antrim Wind originally filed an application (Antrim I) with the Committee in 2012, seeking authorization to construct ten wind turbines. Six of the turbines would be equipped with red flashing aviation obstruction lights. The project also included four miles of new gravel surfaced roads, a joint electrical system, an interconnection substation, and a maintenance building. Antrim Wind further proposed to construct a meteorological tower between turbines three and four to obtain wind data, dedicate 800 acres of land to conservation easements, and install a radar activated lighting system. Antrim I was initially denied; a few years later, Antrim II was filed and ultimately approved by the Committee, finding the second application reflected a “substantial change” from the first application, and as such, would not “have an unreasonable adverse effect on the health, safety, or aesthetics of the region. On appeal, petitioners argued the Committee’s ultimate decision was unreasonable, unlawful, and unjust because: (1) the subcommittee was unlawfully constituted; (2) the denial of Antrim I barred Antrim Wind’s Antrim II application under the doctrine of res judicata as well as the subsequent application doctrine as set forth in Fisher v. City of Dover, 120 N.H. 187 (1980); and (3) there was insufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II would not have an unreasonable adverse impact on aesthetics, public health, and safety. After review of the record, the New Hampshire Supreme Court concluded there was competent evidence to support all of the subcommittee’s factual findings. The subcommittee deliberated about each of these assessments and impacts and determined which experts it found to be more credible. The subcommittee also imposed certain mitigation measures and conditions to address remaining concerns and to ensure regulatory compliance. Accordingly, the Court concluded petitioners failed to show reversible error. View "Appeal of Allen et al." on Justia Law

The issue this case presented for the Washington Supreme Court’s review centered on whether a city council's restrictive zoning decision was judicially reviewable under chapter 36.70C RCW, the Land Use Petition Act (LUPA), where the ordinance targeted a single property with a sole owner and was not an amendment to the city's comprehensive plan. Because such a land use decision was a site-specific rezone and therefore reviewable under LUPA, the Court reversed and remanded to the Court of Appeals to proceed on the merits of the city's appeal of the superior court's decision and for other proceedings. View "Schnitzer W., LLC v. City of Puyallup" on Justia Law

The Court of Appeal affirmed the trial court's denial of a petition for writ of mandate in an action challenging the Department's citation of Lamar for violating County zoning ordinances. After a billboard owned by Lamar was blown over in a windstorm, Lamar argued that it was authorized to rebuild the billboard without interference by local authorities. The court held that the billboard's reconstruction was properly subject to the County's permitting requirements and Los Angeles County Code section 22.56.1510 did not exempt the billboard from the County's permitting requirements. View "Lamar Advertising Co. v. County of Los Angeles" on Justia Law

The Court of Appeal affirmed the trial court's denial of a petition for writ of mandate in an action challenging the Department's citation of Lamar for violating County zoning ordinances. After a billboard owned by Lamar was blown over in a windstorm, Lamar argued that it was authorized to rebuild the billboard without interference by local authorities. The court held that the billboard's reconstruction was properly subject to the County's permitting requirements and Los Angeles County Code section 22.56.1510 did not exempt the billboard from the County's permitting requirements. View "Lamar Advertising Co. v. County of Los Angeles" on Justia Law

The North Dakota Department of Transportation (the "DOT") took G. John Schmitz's property through an eminent domain quick-take action. The DOT deposited $973,380.00 with the Williams County Clerk of Court for the taking. Schmitz disputed the amount and timely served a notice of appeal. In September and October of 2014, the parties attempted unsuccessfully to reach a settlement. Jury trial was set for September 30, 2015. Schmitz had trouble locating expert witnesses and asked for a continuance. The parties stipulated to the continuance, and the court reset trial for January 24, 2017. Schmitz located three expert witnesses before trial: Scott Bechtle, an architect, provided Schmitz with hypothetical development concepts for the property; Robert Strachota, a Minneapolis-based appraiser, offered opinions of land value and severance damages; and Dan Leirness, a Fargo-based appraiser, offered an opinion of land values. After trial Schmitz requested $263,866.97 in attorney fees, $154,172.12 in expert fees and $17,224.31 in litigation costs for a total of $567,317.36. The DOT contested the fees and costs. The district court awarded $137,347.50 in attorney fees, $35,930.96 in expert fees and $8,027.38 in litigation costs for a total of $181,305.84. Schmitz appealed. The North Dakota Supreme Court affirmed in part, reversed in part, and remanded, finding the district court did not abuse its discretion in reducing Schmitz's attorney or expert fees, but abused its discretion in reducing and eliminating certain litigation costs. The judgment was reversed regarding those litigation costs, and the matter remanded for further proceedings. View "N.D. Dep't of Transportation v. Schmitz" on Justia Law

HH intended to open an Indianapolis retail establishment, “Hustler Hollywood,” entered a 10-year lease, and applied for sign and building permits. HH’s proposed store was located in a zoning district that prohibited “adult entertainment businesses.” The Department of Business and Neighborhood Services determined that HH was an adult entertainment business; the Board of Zoning Appeals affirmed. HH sought a declaratory judgment that the ordinance violated its First and Fourteenth Amendment rights. The district court denied HH’s motion for a preliminary injunction. On interlocutory appeal with respect to its as-applied First Amendment claim, the Seventh Circuit affirmed. HH’s speech has not been silenced or suppressed; HH has only been told that it cannot operate in a particular commercial district. The ordinance is “content-neutral” and the city’s interest in reducing the secondary effects of adult businesses is a sufficient or substantial interest. Application of the ordinance resulted only in an incidental restriction on HH’s speech in a particular location. HH presented no evidence that officials displayed any bias or censorial intent in their determinations; the city was under no constitutional obligation to inspect the property or allow HH to open conditionally before making its determination. View "HH-Indianapolis, LLC v. Consolidated City of Indianapolis" on Justia Law