Justia Zoning, Planning & Land Use Opinion Summaries

Wilsons purchased and restored the Soda Rock Winery’s century-old building, which backs to the Belle Terre vineyard, with an “avenue” between. Its front entrance is on Highway 128; to enter the winery from the back, users must use Soda Rock Lane, then the avenue. When the Wilsons bought the property they did not know whether they had any right to use the avenue, buts used it for deliveries and heavy equipment. Belle Terre used the avenue for vineyard equipment. Dick, president of Belle Terre, testified he did not complain because he was trying to be neighborly. The avenue was always considered part of Belle Terre, never used by anyone else. When the Wilsons sought permits to complete the renovation, Belle Terre raised concerns. Conditions in the 2004 permit limited access: “Should the applicant choose … access from Soda Rock Lane, an application for modification … shall be required.” Nonetheless, the Wilsons used the avenue. In 2008, Dick complained that a cement truck was generating dust on the avenue, damaging crops. He told the Wilsons to stop trespassing. He later filed suit. The trial court permanently enjoined further trespass, awarded $1 for past trespass, and awarded attorney fees of $117,000. The court of appeal affirmed as to the boundary dispute, future trespass, and nominal damages, but reversed the award of attorney fees. View "Belle Terre Ranch, Inc. v. Wilson" on Justia Law

The subject property was two large parcels of land in the Town of Manchester. Sand, rock, and gravel had been extracted from a portion of one or both parcels for decades. In September 1990, respondents' predecessor-in-interest received an Act 250 permit authorizing a nineteen-lot residential subdivision on the northern parcel. Among other conditions, the Act 250 permit provided that it would expire one year from the date of issuance if the permittee had not demonstrated an intention to proceed with the project in accordance with 10 V.S.A. 6091(b), and otherwise would expire on October 1, 2020 unless extended by the District Environmental Commission. Other permit conditions prohibited any "changes . . . in the design or use" of the project without written approval of the district coordinator or commission, and specified that the permit and all conditions therein would "run with the land and . . . be binding upon and enforceable against . . . all assigns and successors in interest." In September 1992, the district commission issued an amendment to the permit extending the time for construction of the project to October 1994. In June 1994, respondent Dorr Oil Company purchased a portion of the property designated as a residential tract. The warranty deed expressly referenced the Act 250 permit "and any and all amendments thereto." Shortly thereafter, respondent Donald Dorr, on behalf of Dorr Oil applied for and received a further permit amendment extending the time for construction to October 1995. During this period, another company operated by Dorr, respondent MGC, Inc., purchased the southerly parcel (the "adjacent tract"), and continued to operate a gravel pit "most or all" of which the trial court found was located on the adjacent tract. Dorr took no steps to begin the actual subdivision of the project tract or the development of an internal roadway. In March 2006, following a property-tax reappraisal of the tracts by the Town, respondents filed a request with the district commission to declare the Act 250 permit as abandoned through non-use. The commission, in response, issued a notice of intent to abandon the permit. The owners of a nearby residential property filed an objection, asserting that respondents had made a "material change" to the use authorized by the Act 250 permit by expanding gravel extractions activities onto the residential project tract. The commission then "tabled" the abandonment request "pending a jurisdictional opinion from the district coordinator on the material change question." The district coordinator thereupon requested further information from the parties, visited the site with respondent Dorr and his attorney, and issued a draft jurisdictional opinion for comment. In January 2007, the coordinator issued a formal opinion, finding that the "Dorr gravel pit has expanded onto the parcel covered by [the Act 250 permit]," that this constituted "a material change to that permit," and therefore that "a permit amendment [was] required." Respondents neither appealed the jurisdictional opinion to the Environmental Division, applied for a permit amendment, nor abated the gravel extraction activities on the project tract. Following respondents' inaction, in October 2008, the NRB chair issued an administrative order determining that respondents had violated conditions of the Act 250 permit by making a material change to the project without a land-use permit amendment. Respondents appealed the Superior Court, Environmental Division's judgment affirming the NRB's decision that respondents' gravel-extraction activities violated an Act 250 residential-subdivision permit. Respondents argued the ruling was in error because the permit had expired. Finding no reversible error, the Supreme Court affirmed. View "Nat. Resources Bd. Land Use Panel v. Dorr" on Justia Law

Defendants in this case were a private company that owned property in the town of Rocky Hill and a company overseeing the development of a nursing home on that property. Defendants contracted with the state to provide nursing home services to state prisoners and others in state custody. The town filed an action against Defendants claiming noncompliance with its zoning regulations. The trial court dismissed the action for lack of subject matter jurisdiction, concluding (1) Defendants were an “arm of the state” entitled to sovereign immunity; and (2) even if Defendants were not shielded by sovereign immunity as an arm of the state, the town’s zoning authority over the project was preempted by Conn. Gen. Stat. 17b-372a, which permits certain state officials to contract for the establishment of nursing home facilities for state prisoners and individuals receiving services from the Department of Mental Health and Addiction Services. The Supreme Court reversed, holding (1) Defendants were not immune from suit as an arm of the state; and (2) by enacting section 17b-372a, the legislature did not intend to preempt the application of local zoning laws to facilities established on private land under the authority of that provision. View "Town of Rocky Hill v. SecureCare Realty, LLC" on Justia Law

Pisgah Mountain, LLC applied to the Town of Clifton Planning Board for approval to construct and operate a wind energy project. Peter and Julie Beckford, who own land adjacent to the proposed development site, timely appealed the Board’s decision to the Town’s Zoning Board of Appeals (ZBA). The ZBA denied the appeal. Thereafter, the Beckfords filed a complaint in superior court pursuant to Me. R. Civ. P. 80B. Pisgah and the Town moved to dismiss the Beckfords’ complaint on the ground that it was filed outside of the forty-five-day appeal period. The superior court denied the motion to dismiss, concluding that the forty-five-day appeal period started when the ZBA issued its written findings and decision and not on the day the ZBA voted to deny the appeal. The court then vacated the Board’s decision to approve the permit. The Supreme Court vacated the judgment of the superior court, holding that the statutory appeal period commenced with the ZBA’s public vote, and therefore, the Beckfords’ Rule 80B appeal was untimely filed. View "Beckford v. Town of Clifton" on Justia Law

Real party in interest and respondent 7-Eleven, Inc. applied to the Department of Alcoholic Beverage Control for a license to sell beer and wine at its store located within defendant and respondent City of Lake Forest. Based on the number of other businesses that held liquor licenses in the area, the Department would not act on the application without first receiving a determination from the City that "public convenience or necessity would be served by . . . issuance [of the license to 7-Eleven]." After investigating 7-Eleven’s application, the City determined issuing the license would serve public convenience or necessity, and the City forwarded its conclusion to the Department. Plaintiffs-appellants Adam Nick, Sherry Nick, and Adam Nick & Associates, Inc. (collectively, Nick) filed suit to obtain a writ of administrative mandamus compelling the City to set aside its public convenience or necessity decision. The trial court denied Nick’s writ petition and entered judgment in favor of the City and 7-Eleven. On appeal, Nick argued that the Court of Appeal should overturn the City’s public convenience or necessity determination for four reasons. Finding each of Nick’s reasons lacked merit, the Court affirmed the trial court’s judgment. View "Nick v. City of Lake Forest" on Justia Law

In an interlocutory appeal, applicants sought to change their use of an absolute water right. Applicants conducted a historical consumptive use (HCU) analysis to determine the amount of water previously used in accordance with its decreed right. Applicants performed the analysis on acreage not contemplated by the original appropriation nor any subsequent decree. The water court rejected the HCU. The issue this case presented for the Colorado Supreme Court's review centered on whether applicant could conduct an HCU on acreage not associated with the relevant water right. After review of the parties' arguments in this case, the Supreme Court concluded that a HCU on acreage beyond its associated water right is impermissible. The Court affirmed the water court's judgment and remanded this case for further proceedings. View "Widefield Water v. Witte" on Justia Law

In 2011, Ted Price, as Trustee of the Price Family Trust, filed an application for the establishment of a private road asserting that his property had no outlet to or connection with a public road. The Crook County Board of Commissioners denied the application on the ground that Price already had access to his property from at least two existing public roads. The district court affirmed. The Supreme Court affirmed, holding (1) the Board’s decision denying Price’s private road application was supported by substantial evidence, the actions of the Board were not arbitrary or capricious, and the record did not establish the level of inconvenience required to establish necessity; and (2) the district court did not err in denying Price’s request that the final result be set aside due to malfunctioning audio equipment. View "Price v. Hutchinson" on Justia Law

ln consolidated cases, petitioners brought an untimely challenge to San Juan County's issuance of a garage-addition building permit. Petitioners did not receive notice of the permit application and grant until the administrative appeals period had expired. Thus, petitioners claim that the Washington Supreme Court's interpretation of the Land Use Petition Act (LUPA), chapter 36.70C RCW, required them to appeal a decision without actual or constructive notice of it. Acknowledging a strong public policy supporting administrative deadlines, the Supreme Court found: (1) petitioners were required to exhaust available administrative remedies to obtain a land use decision; (2) there were no equitable exceptions to the exhaustion requirement; (3) the plain language of LUPA says as much; and (4) there was no due process violation because petitioner had no constitutionally protected property interest in the denial of his neighbor's land-use permit. View "Durland v. San Juan County" on Justia Law

After prevailing in a condemnation action, petitioners-landowners moved for an award of attorneys' fees pursuant to section 28-2-510(B)(1) of the Eminent Domain Procedure Act. Contrary to petitioners' view, the circuit court determined attorneys' fees should be awarded based on an hourly rate via a lodestar calculation rather than the contingency fee agreement between Petitioners and their attorney. The Court of Appeals affirmed. The Supreme Court interpreted section 28-2-510 and concluded the General Assembly intended for attorneys' fees to be awarded based on a constellation of factors. Specifically, section 28-2-510(B)(1) mandated that in order for a prevailing landowner to recover reasonable attorneys' fees he or she must submit an application for fees "necessarily incurred." Therefore, by implication, the General Assembly precluded a landowner from recovering attorneys' fees based solely on a contingency fee agreement without regards for section 28-2-510. The Court explained that even though the contingency fee agreement is not the sole element in the calculation, it is still a significant component as it may be used to explain the basis for the fee charged by the landowner's counsel. "Our decision should not be construed as somehow condemning or eliminating an attorney's use of a contingency fee agreement. To the contrary, we recognize that the use of these agreements is a legitimate and well-established practice for attorneys throughout our state. This practice may still be pursued. Yet, it is with the caveat that the terms of the agreement are not controlling. Rather, they constitute one factor in a constellation of factors for the court's consideration in determining an award of reasonable litigation expenses to a prevailing landowner under section 28-2-510(B)(1). The court may, in fact, conclude that the contingency fee agreement yields a reasonable fee. However, the court is not bound by the terms of the agreement. " For this case, the Supreme Court held that the Court of Appeals misapplied case law precedent. Furthermore, the Court concluded the circuit court failed to conduct the correct statutory analysis, and remanded this matter to the circuit court. Petitioners' counsel was instructed to submit an itemized statement in compliance with section 28-2-510(B)(1) as counsel's original affidavit failed to identify the "fee charged" and the actual number of hours expended. View "South Carolina Dept. of Trans. v. Revels" on Justia Law

The issue this case presented for the South Carolina Supreme Court's review centered on the correct application of those statutes and regulations pertinent to an invaluable (environmentally, economically, and socially) stretch of tidelands located on the edge of a spit of land along the South Carolina coast. A landowner and real estate developer sought a permit to construct a bulkhead and revetment stretching over 2,700 feet in length and 40 feet in width over the State's tidelands, thereby permanently altering 111,320 square feet or over 2.5 acres of pristine tidelands. The landowner sought to halt ongoing erosion along that stretch of tidelands in order to facilitate a residential development on the adjacent highland area. The Department of Health and Environmental Control denied the majority of the requested permit and granted a small portion to protect an existing county park. An administrative law court (ALC) disagreed and found a permit should be granted for the entire structure, and this appeal followed. The Supreme Court concluded the ALC committed several errors of law and therefore, it reversed and remanded for further consideration. View "Kiawah Development v. South Carolina Dept. of Health & Env. Ctrl." on Justia Law