Justia Zoning, Planning & Land Use Opinion Summaries

917 Lusk, LLC appealed the Boise City Council's decision to grant a conditional use permit to Royal Boulevard Associates, LP to build an apartment complex. Royal's predecessor in interest applied for permission to build a 352,000 square foot, five-story, multi-family apartment complex called River Edge Apartments. The site of the proposed construction was near Boise State University, adjacent to the Boise River, east of Ann Morrison Park, and west of property owned by Lusk. The site was zoned Residential Office with a Design Review Overlay (R-OD). Multi-family housing was an allowed use for this location. However, the Boise City Code (BCC) required a conditional use permit (CUP) in order to construct a building more than 35 feet tall in an R-OD zone. If constructed as planned, River Edge will have been between 59 and 63 feet tall. Lusk appealed the Boise Planning and Zoning Commission's decision to the City Council, contending that the Commission's decision failed to address the requirements for a CUP. The district court affirmed the City Council's decision and Lusk appealed. Lusk argued that because the Commission did not follow the correct procedure for granting a CUP, the City Council erred in affirming the Commission's decision. The Supreme Court agreed, reversed the district court's affirmance of the City Council's approval of the Commission's decision to grant the CUP to Royal. The case was remanded for further proceedings. View "917 LUSK, LLC v. City of Boise" on Justia Law

At issue in this case was two adjacent beachfront lots - lot 113 and lot 114. In 1989, as a result of a merger clause in a zoning ordnance, the lots were merged into a single, nonconforming, grandfathered lot. Despite the merger clause’s prohibition of any separation of a merged lot that would result in an area that did not meet minimum lot-size requirements, the owner separated the lots and conveyed them to two different individuals. Carol Reece acquired lot 113. In 2013, Plaintiff, who owned property abutting lot 113, sought a declaratory judgment that lot 113 was not a grandfathered nonconforming lot. Reece subsequently acquired lot 114. The superior court granted summary judgment for Reece. The Supreme Court vacated the judgment of the superior court, holding that Reece’s recombination of lots 113 and 114 did not effect a resurrection of the grandfathered status that the lots had when they were previously merged. View "Day v. Town of Phippsburg" on Justia Law

The issue this case presented for the Supreme Court's review centered on the historical beneficial consumptive use calculation of an 1872 irrigation right in a change of water right and augmentation plan proceeding. Sedalia Water and Sanitation District was the owner of a portion of that water right which it acquired from Owens Brothers Concrete Company. When the company owned its portion of the appropriation, it obtained a change of water right decree quantifying an annual average of 13 acre-feet of water available for use as augmentation plan credit for replacement of out-of-priority tributary groundwater depletions from a well. Having acquired the concrete company's interest, Sedalia claimed a right to the same amount of historical consumptive use water for its well augmentation plan in this case. On competing motions for summary judgment, the water court ruled that the doctrine of issue preclusion prohibited the State and Division Engineers from relitigating the quantification question (because they had been parties to the concrete company's 1986 augmentation plan case). The court held that the Engineers could raise the issue of abandonment at trial if they chose to. The Engineers argued on appeal to the Supreme Court that the Court should adopt a comprehensive rule that every change case triggered requantification of a water right. The Supreme Court affirmed in part and reversed in part: issue preclusion applied to prevent relitigation of the historical beneficial consumptive use quantification; issue preclusion did not prevent the water court from inquiring into the alleged 24-year post-1986 non-use the Engineers alleged. View "Wolfe v. Sedalia" on Justia Law

Ordinance No. 611 of the City of Valley, Nebraska authorized the annexation of land near Valley’s corporate border, some of which included Sanitary and Improvement District No. 196 (SID 196). SID 196 filed a complaint seeking to declare the ordinance invalid and seeking to enjoin Valley from enforcing the ordinance. Valley filed a motion for summary judgment, and both parties presented evidence from expert witnesses. The district court ultimately granted summary judgment for Valley and declared the ordinance valid. The Supreme Court affirmed, holding that the trial court did not err in concluding that ordinance No. 611 is valid and in therefore granting summary judgment. View "Sanitary & Improvement Dist. No. 196 v. City of Valley" on Justia Law

In May 2010, the Bar Harbor Appeals Board issued two decisions requiring the Bar Harbor Planning Board to approve a site plan for construction of a hotel on land abutting land owned by the Witham Family Limited Partnership in Bar Harbor. Witham filed a complaint challenging both decisions. The Supreme Court vacated the superior court’s judgment dismissing the complaint and remanded. Also in May 2010, on remand from the Appeals Board, the Planning Board issued a decision containing new findings and approving of the proposed site plan. No appeal was taken from this decision. In May 2012, the Planning Board approved of an amended site plan. Witham did not appeal from the May 2012 decision or the issuance of any building permits or other permits. In October 2013, on remand from the Supreme Court, the Business and Consumer Docket justice affirmed the Planning Board’s determinations. Witham appealed. The Supreme Court dismissed the appeal as moot because Witham did not appeal from the Planning Board’s May 2010 decision approving the proposed site plan or the Planning Board’s May 2012 approval of an amended site plan and because the hotel was now fully operational. View "Witham Family Ltd. P’ship v. Town of Bar Harbor" on Justia Law

The Labadie Environment Organization and several individuals (collectively, Appellants) filed a writ of certiorari challenging the legality of the Franklin County Commission’s adoption of zoning amendments allowing Ameren Missouri to build a coal-ash landfill adjoining its Labadie power plant. Count I of the petition alleged that the commission failed to conduct a legally sufficient hearing prior to adopting the zoning amendments, and Count II alleged that the zoning amendments were invalid for failing to promote public health, safety, and welfare. The circuit court entered judgment in favor of the commission and Ameren. The Supreme Court (1) reversed the trial court’s judgment of dismissal on Count I, as Appellants stated a viable claim that the zoning amendments were enacted without a legally sufficient public hearing; and (2) reversed the judgment upholding the merits of the commission’s decision to adopt the landfill zoning amendments, as the commission’s decision to adopt the amendments is premature until Count I is resolved on its merits by the trial court. View "Campbell vs. County Comm’n of Franklin County" on Justia Law

In 1989, the Poksays built their Novato home, including a 150-foot long driveway within the 30-foot wide easement running to the site, which was hidden from the street. The easement was over property then owned by the Schaefers and was for access and utility purposes only. The Poksays hired a landscaper, who dug holes, added plants and trees along both sides of the driveway, and installed a drip irrigation system with a line under the driveway. Water fixtures were installed along the driveway for fire safety. The Poksays added lighting, regularly tended to the landscaping, and paid maintenance, water, and other costs. Respondents purchased the property from the Poksays in 2000. The landscaping was mature. Appellants purchased the Schaefer property in 2004. In 2010, without notice, appellant cut the irrigation and electrical lines on both sides of the driveway, including those irrigating respondents’ own property and sent a letter demanding removal of all landscaping and supporting systems from the easement. Respondents filed suit. The court granted respondents an irrevocable parol license. The court of appeal agreed that it would be inequitable to deny respondents an irrevocable license given the substantial investment of time and money and years of acquiescence. View "Richardson v. Franc" on Justia Law

This case stemmed from the Board of County Commissioners for Fremont County's efforts to prepare an official county road map that complied with Idaho Code section 40-202. The Board adopted an Official Fremont County Road Map. The Map depicted the North Road as a county road. Property owners along the North Road petitioned for judicial review. The district court determined the Board lacked substantial and competent evidence to designate the North Road as a county road and vacated the Board's decision. The Board appealed. Finding no reversible error in the district court's decision, the Supreme Court affirmed. View "Flying "A" Ranch v. County Commissioners of Fremont County" on Justia Law

In the late 1990s, the Township of Ocean began a comprehensive planning process in anticipation of population growth and increased development. In April 2007, plaintiffs, who owned a significant amount of land in the Township, filed a complaint against the Township, the Department of Environmental Protection (DEP), and the New Jersey Department of Community Affairs (DCA) challenging the validity of three ordinances affecting their property. They alleged that they were arbitrary, unreasonable, capricious, and illegal and that the rezoning constituted inverse condemnation. Plaintiffs lived in a single-family residence on the eastern portion of one of several lots they owned; the remainder of the property consisted of undeveloped woodlands. When plaintiffs acquired the property, it was subject to mixed zoning. As a result of the Planning Commission s endorsement of the Township s Petition, all but one of plaintiffs lots were converted to PA-5 Environmentally Sensitive Planning Areas. In this appeal, the issue this case presented for the Supreme Court's review centered on the circumstances under which municipal zoning ordinances represent a legitimate exercise of a municipality s power to zone property consistent with its Master Plan and Land Use Law (MLUL) goals. Upon review, the Court concluded that the ordinances represented a legitimate exercise of the municipality's power to zone property consistent with its MLUL goals, and held that plaintiffs did not overcome the ordinances presumption of validity. The inclusion of plaintiffs property in the EC district rationally related to the municipality's comprehensive smart growth development plan, which concentrated development in a town center surrounded by a green-zone buffer. The Court declined to invalidate ordinances that fulfill MLUL goals and other legitimate land-use planning objectives through plaintiffs as-applied challenge. "Rather, we reassert the importance of exhausting administrative remedies and conclude that plaintiffs claim for redress for the downzoning of their property is better addressed through their inverse condemnation claim, which, as the trial court held, plaintiffs may pursue if they are denied a variance." View "Griepenburg v. Township of Ocean" on Justia Law

Roswell’s city council held a public hearing to consider T-Mobile’s application to build a cell phone tower on residential property. Council members expressed concerns about the tower’s impact on the area. The council unanimously denied the application. Two days later, the city informed T-Mobile by letter that the application had been denied and that minutes from the hearing would be made available. Detailed minutes were published 26 days later. The district court held that the city, by failing to issue a written decision stating its reasons for denial, had violated the Telecommunications Act, which provides that a locality’s denial “shall be in writing and supported by substantial evidence contained in a written record,” 47 U. S. C. 332(c)(7)(B)(iii). The Eleventh Circuit found that the Act’s requirements were satisfied. The Supreme Court reversed. It would be difficult for a reviewing court to determine whether denial was “supported by substantial evidence contained in a written record,” or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” or regulated siting “on the basis of the environmental effects of radio frequency emissions,” if localities were not obligated to state reasons for denial. Those reasons need not appear in the denial notice itself, but may be stated with sufficient clarity in some other written record issued essentially contemporaneously with the denial. Because an applicant must decide whether to seek judicial review within 30 days from the date of the denial, the locality make available its written reasons at essentially the same time as it communicates its denial. View "T-Mobile South, LLC v. City of Roswell" on Justia Law