Justia Zoning, Planning & Land Use Opinion Summaries

Defendant-appellant Donald Pellicone appealed a Superior Court judgment confirming that New Castle County had certain easements on Pellicone's property. The County sought the easements' validation to carry out a flood control project targeting Little Mill Creek in New Castle County. The issues on appeal to the Supreme Court were: (1) whether the Flood Control Project legally constituted a County project; (2) whether the County's condemnation of Pellicone's property fell within the County's statutory eminent domain authority; (3) whether the County's action was a taking of Pellicone's property for a public use as defined by law; and (4) whether the procedures set forth in Chapter 12, Article 7 adhered to. Answering all questions raised on appeal as "yes," the Supreme Court affirmed the Superior Court's judgment. View "Pellicone v. New Castle County" on Justia Law

Plaintiffs Elaine and Gerald Rominger challenged a mitigated negative declaration approved by defendant Colusa County with respect to a subdivision proposed by real party in interest Adams Group Inc. The trial court denied the Romingers’ petition based on the conclusion that, notwithstanding the county’s approval of a mitigated negative declaration, the county’s "action in approving the subdivision map was not a project for CEQA purposes and [thus] no review beyond the preliminary review stage was required." The Court of Appeal concluded the trial court erred in determining the proposed subdivision was not a CEQA project, even though the proposal did not include any specific plans for development. On independent review of the Romingers’ other complaints, however, the Court found merit in only one: the Romingers adequately showed there was substantial evidence in the record that the subdivision may have had a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, on that basis only, the Court reversed and remanded for the preparation of an environmental impact report (EIR). View "Rominger v. County of Colusa" on Justia Law

In 2012, the Bangor Planning Board approved Harvey Sprague’s application to open and operate a quarry in Bangor’s rural residence and agricultural district. Sharon Cassidy sought judicial review of the Board’s decision, listing as one of the grounds for her appeal the Board’s failure to make findings of fact and conclusions of law to accompany its approval letter. The superior court accepted the findings of the Board retroactively and granted Cassidy forty days to consider the findings and file an amended brief in support of her appeal. Cassidy then filed this appeal. The Supreme Court dismissed the appeal because it was interlocutory and did not fall within any of the exceptions to the final judgment rule.View "Cassidy v. City of Bangor" on Justia Law

Plaintiff-appellant Erling "Curly" Haugland appealed the grant of summary judgment that dismissed his action against the City of Bismarck for declaratory relief involving Bismarck's implementation of an urban renewal plan and use of tax increment financing to fund renewal projects in its renewal area. Haugland argued Bismarck failed to establish as a matter of law that it complied with the procedural requirements of N.D.C.C. 40-58-06 for substantially modifying its urban renewal plan in 1994. On remand, the district court decided an appropriate 1994 resolution existed to add six city blocks to the renewal area and authorized renewal projects in the renewal area were pending in January 2011. The Supreme Court affirmed in part, and reversed in part. The Court affirmed that portion of the summary judgment concerning Bismarck's urban renewal plan including pending authorized projects for the existing renewal area when the district court decided the case in January 2011. However, the Court reversed and remanded summary judgment with respect to approval of the 1994 plan, finding no disputed issues of material fact existed regarding approval.View "Haugland v. City of Bismarck" on Justia Law

El Dorado, a mobile home park owner located in the City of Fillmore alleged that the City interfered with an application for a subdivision of its seniors-only mobile home park by causing unreasonable delays and imposing extralegal conditions because of a fear that subdivisions would lead to El Dorado opening the Park to families. El Dorado's complaint was dismissed for lack of standing. The court concluded, however, that El Dorado had Article III standing where El Dorado suffered a concrete and particularized, actual, injury, in the form of added expenses caused by the City's interference of the application. Accordingly, the court reversed and remanded for further proceedings. View "El Dorado Estates v. City of Fillmore" on Justia Law

This case concerned the City's approval of a residential infill development project in downtown Fresno to build 28 two-story townhouses. The trial court decided that the City violated certain procedural requirements of the California Environmental Quality Act (CEQA), Public Resources Code 21000 et seq., in approving the project, but applied the correct legal standards in determining the two houses at issue were not "historical resources" protected by CEQA. The court concluded that CEQA allows a local lead agency, such as the City, to delegate the authority to approve a mitigated negative declaration and a project to a nonelected decisionmaking body such as the Preservation Commission. In this case, the Fresno Municipal Code did not actually authorize the Preservation Commission to complete the environmental review required by CEQA and approve the mitigated negative declaration. Therefore, the Preservation Commission's approval of the mitigated negative declaration did not comply with CEQA. In regards to historical resources, the court confirmed the statutory analysis in Valley Advocates v. City of Fresno and concluded that the substantial evidence test, rather than the fair argument standard, applies to a lead agency's discretionary determination of whether a building or district is an historical resource for purposes of CEQA. Therefore, the trial court did not err when it applied the substantial evidence test to the City's determination that no historical resources were impacted by the project. Accordingly, the court affirmed the judgment of the district court. View "Citizens etc. L Street v. City of Fresno" on Justia Law

The Clean Air Act, 42 U.S.C. 7401, allows each state to craft a state implementation plan to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs, to prevent backsliding in “attainment areas” that meet or exceed the Act’s air quality standards, while allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region’s aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and a cap on pollutants above that baseline. The Act grandfathers sources operational before 1975: the baseline incorporates their emissions, with post-1975 sources counting against the allowance. Title V of the Act requires each covered stationary source to have an operating permit. In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. Meanwhile, Georgia-Pacific modified a paper machine at the plant. The application was unopposed and the modification permit issued in February 2004. In 2011 Wisconsin reissued the plant’s operating permit. Objectors claim that modifications to any part of a plant require all emissions from the plant, including pre-1975 emissions incorporated into the baseline, to count against the state’s allowance, so that the whole plant might need to close for lack of available allowance. The U.S. EPA declined to object, concluding that Wisconsin’s approach is consonant with its understanding of the statute. The Seventh Circuit denied a petition for review. EPA presented a reasonable interpretation of an ambiguous statutory provision. View "Clean Water Action Council of NE WI, Inc. v. Envtl. Prot. Agency" on Justia Law

Plaintiff filed suit seeking equitable relief to prevent the Town from denying her the ability to build on a lot that she owns in the Town. The district court granted plaintiff an injunction following a bench trial. The Town appealed, arguing that plaintiff did not avail herself to state law proceedings to seek relief concerning her property's zoning status before she filed her municipal estoppel claim in federal court. The court concluded that plaintiff failed to exhaust her administrative remedies as required by state law and, therefore, the district court lacked jurisdiction over the case. The court vacated and remanded with instructions to dismiss the complaint. View "Holt v. Town of Stonington" on Justia Law

SourceGas Distribution, LLC owned property located in an area that had been annexed by the City of Hastings. The City, on behalf of the board of public works, filed a petition in the county court under the general condemnation procedures found at Neb. Rev. Stat. 76-101 through 76-726, seeking to initiate condemnation proceedings against the property owned by SourceGas. In an effort to enjoin the county court proceedings, SourceGas Distribution filed a complaint in the district court for temporary and permanent injunction, primarily alleging that the City must utilize Nebraska’s Municipal Gas System Condemnation Act (the Act) rather than the procedures in chapter 76. The district court overruled the motion for temporary injunction and dismissed the complaint, concluding that Neb. Rev. Stat. 19-4626(2) exempted the City from being required to proceed under the Act and that the City could utilize chapter 76’s general condemnation procedures. The Supreme Court affirmed, holding that the district court correctly concluded that, pursuant to the exception set forth in section 19-4626(2), the Act does not apply in this case and, instead, the general condemnation procedures of chapter 76 apply. View "SourceGas Distrib., LLC v. City of Hastings" on Justia Law

The Surface Mining Control and Reclamation Act, 30 U.S.C. 1202(a) allows states to enact and administer regulatory programs consistent with federal standards, subject to federal approval. Kentucky’s Department for Natural Resources assumed responsibility for SMCRA implementation through its Division of Mine Permits, Ky. Rev. Stat. 350.028, .465(2). Its program has been approved by the U.S. Department of the Interior since 1982. A typical surface mining operation also requires permits under the Clean Water Act, 33 U.S.C. 1251: a 401 permit for “discharge into the navigable waters;” a 402 permit for “discharge of any pollutant, or combination of pollutants;” and a 404 permit for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” A 404 permit is issued by the U.S. Army Corps of Engineers in compliance with EPA guidelines, 33 U.S.C. 1344(b)(1). Kentucky authorized a Perry County surface mining operation; the operator obtained 404 permit from the Corps, authorizing it to “mine through” and fill surface stream beds, which are already in a degraded state, requiring offset of the limited environmental effect by improving other streams in the watershed. Opponents argued that the National Environmental Policy Act required the Corps to consider the public health impacts related to surface mining in general, and that the Corps violated the CWA by using flawed analysis of the mitigation plan. The district court rejected the arguments. The Sixth Circuit affirmed.View "Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs" on Justia Law