Justia Zoning, Planning & Land Use Opinion Summaries

Nandan, LLP appealed the grant of summary judgment and an order denying its N.D.R.Civ.P. 60(b) motion for relief from judgment, ruling that road and utility repairs were incidental to the repair of a water and sewer system damaged by a landslide in Fargo, and that the City of Fargo was therefore not required to pass a resolution of necessity to create an improvement district to fund the repairs. In 2012, a landslide occurred along 32nd Street North in Fargo near where Nandan and Border States Paving, Inc., owned property. The landslide damaged a water main and storm sewer; the street; and Drain No. 10, which was owned, operated, and maintained by the Southeast Cass Water Resource District. The road and adjacent water and sewer lines were owned by Fargo. Fargo created an improvement district to fund repairs to the drain, water main, and sanitary sewer systems on a portion of the drain without adopting a resolution of necessity. Fargo later entered into a joint powers agreement with the District which set forth the parties' obligations for the repairs. The district court granted Fargo's N.D.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted, concluding Nandan and Border States had no right to protest under N.D.C.C. 40-22-06 because the city let the bids for project construction, or under N.D.C.C. 40-22-15 because the project constituted a water or sewer improvement for which a resolution of necessity was not required. Finding that Nandan failed to raise a genuine issue of material fact precluding summary judgment, the North Dakota Supreme Court affirmed. View "Nandan, LLP v. City of Fargo" on Justia Law

Santa Cruz County adopted three ordinances that extended minor exceptions to zoning site standards; altered certain height, density, and parking requirements for hotels in commercial districts; and established an administrative process for approving minor exceptions to the sign ordinance. Aptos argued that the county engaged in piecemeal environmental review in violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000) when it considered the ordinances separately and failed to act in the manner prescribed by CEQA when it approved a negative declaration for the ordinance altering height, density, and parking requirements for hotels in commercial districts, because it failed to consider the environmental impacts that may ensue from future hotel developments. The court of appeal rejected those arguments. Although the county is in the process of modernizing some of its zoning regulations, this modernization process does not constitute a single project under CEQA. The court upheld the negative declaration for the hotel ordinance as adequate. The county should consider the potential environmental impacts resulting from reasonably foreseeable future development resulting from the ordinance. Future hotel developments, however, were wholly speculative at the time the negative declaration was adopted. View "Aptos Council v. County of Santa Cruz" on Justia Law

Plaintiff, a tattoo artist and long-time resident of Long Beach, filed suit against the City, alleging that the City's zoning ordinances violated the First Amendment by unreasonably restricting his ability to open and operate a tattoo shop in Long Beach. The district court entered judgment for the City. The court concluded that the district court inaccurately narrowed plaintiff's claims in its order by framing plaintiff's challenge as only to the conditional use permit (CUP) requirement, when plaintiff also challenged the location restrictions on tattoo shops; ignoring plaintiff's claim that the CUP process vests unbridled discretion in the City; and stating that plaintiff's claim only concerned his desire to open a shop at 316 Elm Street in the East Village Arts District, when this was just one of three locations that plaintiff initially identified in his letter to the City. The court held that plaintiff has standing to bring a facial first amendment challenge to the City's zoning ordinances where he was not required to first apply for, and then be denied, a CUP to bring this claim under a permitting system that allegedly gives City officials unfettered discretion over protected activity; plaintiff has standing to bring an as-applied First Amendment challenge to the City's zoning ordinances where it appeared likely that the City would take action against plaintiff if he opened a tattoo shop without a CUP; plaintiff raised a cognizable claim that the City's zoning ordinances constituted an unlawful prior restraint on speech; and plaintiff raised a cognizable claim that the City's ordinances constituted unlawful time, place, or manner restrictions on speech. Accordingly, the court reversed and remanded for further proceedings. View "Real v. City of Long Beach" on Justia Law

The Tax Equalization and Review Commission (TERC) adjusted upward by eight percent the value of the “land use grass” subclass of the agricultural and horticultural land class of real property in Franklin County not receiving special valuation. Franklin County appealed. The Supreme Court affirmed TERC’s order adjusting the Franklin County grassland value upward by eight percent, holding (1) TERC did not err in relying on the statistics prepared by the Property Tax Administrator; (2) there was no merit to Franklin County’s argument that TERC violated Neb. Const. art. VIII by failing to uniformly and proportionally value grasslands in the state; and (3) Franklin County’s remaining assignments of error were without merit. View "County of Franklin v. Tax Equalization & Review Commission" on Justia Law

In 2009, Mosley's Wickliffe, Ohio Motel needed a tenant for its lounge. Miller's nightclub in neighboring Willoughby had drawn the ire of law enforcement. The two executed a lease; Miller applied for permits. Miller claims that the city was initially receptive, but, after informing it of his plan to host a “Hip Hop night, [catering] to African American[s],” the city allegedly changed its position. Miller’s occupancy permit application was denied pending revised parking plans. Miller needed a liquor license from the state. The city did not oppose Miller’s application, but religious organizations did. The city passed a resolution, supporting that opposition. The state denied Miller’s application, citing the objections of the religious organizations and “the peace and good order of the neighborhood.” Miller did not appeal. The city passed Ordinance 2009-49, requiring “nightclubs” to obtain a permit and delineating the health ad safety responsibilities; it restricted nightclub locations to buffer schools, churches, libraries, parks, taverns, bars, other nightclubs, and residential districts. Miller and Mosley never applied for nightclub permits. Miller became involved with Cirino in a proposed billiards hall, the temporary-occupancy permit for which was then revoked. The three sued under 42 U.S.C. 1983 and 42 U.S.C. 2000A (racial discrimination) with state law and takings claims. The district court dismissed. The Sixth Circuit affirmed. Plaintiffs cannot demonstrate that Wickliffe had reached a final decision under the ordinance, or that they faced a credible threat of prosecution, and cannot show a particularized and concrete injury sufficient to confer jurisdiction. View "Mosley v. City of Wickliffe" on Justia Law

A group of landowners (neighbors) adjacent to a proposed planned unit development (PUD) challenged the Environmental Division’s affirmance of the PUD permit. On appeal, neighbors argued that the Environmental Division improperly required them to amend their original statement of questions and then erred by refusing to consider all of the issues raised by neighbors’ Amended Statement of Questions. Neighbors also claimed that the court erred as a matter of law when it concluded that adequate notice was posted of the public hearing on the PUD permit. After review, the Supreme Court affirmed in part and reversed and remanded in part. The court did not err when it required neighbors to file an amended statement of questions under Environmental Proceedings Rule 5(f). The Supreme Court did concluded, however, that, after requiring neighbors to file a new statement of questions, the court was obligated to resolve all of the issues raised by the Amended Statement of Questions. “The court limited its decision on the merits to those issues specifically relating to PUD regulations. This was error. By declining to specifically address these regulations, the court left open issues presented by the Amended Statement of Questions.” Because the parties presented evidence on the regulations and the regulations were before the court, the Environmental Division should have addressed them in its decision. The Supreme Court concluded the Environmental Division did not err when it determined that Atwood satisfied the notice requirements to obtain approval of the project. View "In re Atwood Planned Unit Development" on Justia Law

In the 1980s, Simonson began exploring for deposits of pumicite, a porous volcanic rock, which he thought had potential commercial applications. Simonson found high quality pumicite in Kern County and located 23 mining claims in his name. For two decades, Simonson commissioned scientific testing. Lab reports and industry analyses confirmed that pumicite could be useful in industrial paint and plastic manufacture; Simonson began taking orders. In 1987, Simonson submitted a Plan of Operations to Bureau of Land Management to mine 100,000 tons per year. BLM conditionally approved the plan, specifying that it had not yet determined whether Simonson had discovered valuable minerals under the General Mining Law, 30 U.S.C. 22. Simonson postponed mining until BLM completed its common/uncommon variety determination, but hired a consultant to generate investor interest. In 1989, the BLM concluded that Reoforce pumicite was an uncommon mineral, locatable under federal law, but did not establish that Simonson had a right to patent his claims. From 1987-1995, Simonson mined only 200 tons of pumicite and sold only five. In 1995, BLM stated that the lands encompassing 10 of the claims would be transferred to become part of Red Rock Canyon State Park. An agreement between BLM and California permitted some mining claimants to continue operating, depending on prior use of the mine, subject to California’s Surface Mining and Reclamation Act. Ultimately, BLM found pumicite not marketable and the claims invalid. The Department of the Interior later granted Simonson a conditional right to mine some claims. Simonson then sought compensation for a temporary taking (1995-2008). The Federal Circuit affirmed rejection of the claims. Although the character of the government's action did not weigh heavily against the taking claim, the economic-impact and reasonable-investment-backed-expectations factors weighed heavily against Simonson. View "Reoforce, Inc. v. United States" on Justia Law

Plaintiff-appellant Residents Against Specific Plan 380 appealed the denial of its petition for a writ of mandate to challenge the County of Riverside’s (County) to approve development of a master-planned community put forward as Specific Plan 380 by real party in interest, Hanna Marital Trust. The County commissioned an Environmental Impact Report (EIR) on the project, which determined all potentially significant environmental impacts except noise and air quality impacts would have been reduced below the level of significance after mitigation. The final EIR responded to public comments on a draft EIR requesting further mitigation before the County approved the project. The Riverside County Board of Supervisors requested modifications of the plan before approving it and determined the changes did not require revision and recirculation of the EIR. After the revisions were codified, the Board of Supervisors certified the final EIR and approved the plan. The County then posted a public notice of its determination which included a description of the project containing errors about certain project details. Appellant sought a writ of mandate asserting the County failed to comply with procedural, informational, and substantive provisions of the California Environmental Quality Act (CEQA). The trial court denied the petition in its entirety and entered judgment in favor of the County and the Hanna Marital Trust. On appeal, appellant argued the County: (1) substantially modified the project after approving it; (2) approved the project without concurrently adopting findings, a statement of overriding consideration, and a mitigation plan; (3) failed to recirculate the final EIR after modifying the project; (4) certified the final EIR despite inadequately analyzing the impacts of the development of the mixed use planning area; (5) issued an erroneous and misleading notice of determination after approving the project; and (6) failed to adopt all feasible mitigation alternatives proposed in comments on the draft EIR. Finding no reversible error, the Court of Appeal affirmed the trial court’s judgment. View "Residents Against Specific Plan 380 v. Co. of Riverside" on Justia Law

AT&T applied for a permit from the Lexington-Fayette Urban County Planning Commission to build a 125-foot cell-phone tower. Neighboring residents opposed the application, arguing that the tower would spoil the view from their properties, disturb the character of the neighborhood, endanger public health and safety, and depress residential property values. They cited a staff report concerning the tower's visual impact, an expert report on radio frequency emissions, and valuation studies. The Commission granted the site permit. The Fayette County Circuit Court dismissed an appeal on procedural grounds. A state court appeal is pending. The district court dismissed a separate suit alleging negligence, negligence per se, gross negligence, and nuisance. The Sixth Circuit affirmed, citing “obstacle” preemption by the federal Telecommunications Act of 1996. The court also noted that the claims constituted an improper collateral attack on the Commission’s decision to approve the tower. View "Robbins v. New Cingular Wireless PCS, LLC" on Justia Law

The Townhouse Motel in Crescent City first became a subject of code enforcement efforts in 2006. Until 2013, the city repeatedly ordered Reddy to abate dangerous conditions. In 2013, following an inspection, the city issued a Notice and Order to Repair or Abate listing 76 building code violations and other illegal conditions and ordering Reddy to rehabilitate the property within 30 days. A subsequent inspection found that Reddy had not made the required repairs. The city filed suit. The court entered a stipulated judgment requiring Reddy to upgrade the property within six months and to cease renting rooms to the same occupant for more than 30 days. Nearly a year later, the city inspected and found little or no improvement. The inspectors concluded that “conditions on the [property] pose a substantial danger to the life, limb, health, and safety of the occupants of the motel, the residents of the surrounding community, and the public in general.” In October 2014, the city successfully moved for the appointment of a receiver to oversee the property’s rehabilitation. The court of appeal affirmed, rejecting arguments that the trial court erred in overruling Reddy’s objections to the city’s evidentiary submissions and in failing to take live testimony. View "City of Crescent City v. Reddy" on Justia Law