Justia Zoning, Planning & Land Use Opinion Summaries

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

Plaintiff filed suit challenging his arrests for refusing to obey Officer Early's repeated orders to confine his leafleting to the area designated for protest activities outside the First Mariner Arena in Baltimore. The designated protest area was defined by a written policy of the City and the BCPD. The court held that the policy was facially valid under the First Amendment as a reasonable time, place, and manner restriction. The court found that the district court committed no reversible error as to plaintiff's remaining claims. Accordingly, the court affirmed the district court's grant of summary judgment in favor of defendants.View "Ross v. Early" on Justia Law

Kauai Springs, Inc., a water bottling and distribution company, filed an application for three zoning permits related to the continued operation of its water bottling facility on land located in Koloa, Kauai. The Planning Commission of the County of Kauai denied the permits, notified Kauai Springs that continued operation on the property constituted a land use violation, and ordered Kauai Springs to shut down its operations on the property. The circuit court reversed in part and vacated in part the Commissioner’s decision and order and ordered that all three permits be issued. The intermediate court of appeals (ICA) vacated the circuit court’s final judgment and remanded to the Commission for consideration of whether Kauai Springs could meet the requirements for the permits. The Supreme Court affirmed to the extent the ICA vacated the circuit court’s final judgment, holding that the Commission’s findings of fact were not erroneous, its conclusions of law were correct, and its decision to deny the permits was not arbitrary and capricious, but clarity and completeness in its decision were lacking. Remanded to the Commission to clarify its findings of fact and conclusions of law. View "Kauai Springs, Inc. v. Planning Comm’n" on Justia Law

Calvin Kendrick and K & D Automotive, Inc. sued the City of Montgomery, the City's employees Eddie Hill, Jr., Nathaniel Bracy, and Scott Adams, Tony's Automotive, L.L.C. and Tony's Automotive's owner Tony D. Brooks and manager Ellen F. Brooks asserting various due-process claims after, on two occasions, the City declared vehicles parked at K&D Automotive to be public nuisances under the City nuisance ordinance and authorized Tony's Automotive to abate the nuisances by removing the vehicles from the premises. The trial court thereafter entered a summary judgment in favor of the City defendants and the Tony's Automotive defendants on those claims; however, Kendrick and K&D have established on appeal that a judgment as a matter of law was not warranted on counts 5, 7, 8, 9, and 11 of their amended complaint. The Supreme Court reversed the trial court's grant of summary judgment as to those counts. Kendrick and K&D did not establish, however, that the trial court erred by entering a summary judgment in favor of the defendants on count 10, and that judgment was accordingly affirmed. View "K & D Automotive, Inc. v. The City of Montgomery" on Justia Law

Appellants Amherst Realty, LLC, Richard Madowitz, and the personal representatives of the Estate of Douglas Kohl appealed a superior court's grant of summary judgment to The Woods at Killington Owners’ Association on Amherst Realty’s claim of breach of contract based on the Association’s alleged interference with its development rights at The Woods at Killington. The Association cross-appealed the superior court’s decision granting summary judgment to Amherst Realty on the Association’s consumer fraud counterclaim. This controversy the center of this case concerned the consequences of the attempt and ultimate failure to build 40 units at The Woods. But finding no reason to reverse the superior court on either parties' claims, the Supreme Court affirmed. View "Amherst Realty, LLC v. The Woods at Killington Owners’ Association, Inc." on Justia Law

Flanagan’s Ale House applied for a retail liquor drink license to replace its restaurant drink license. The Louisville/Jefferson County Government (Louisville Metro) denied the application, relying on Ky. Rev. Stat. 241.075, which prohibits the issuance of a retail drink license to an applicant located in a combination business and residential area of a “city of the first class or consolidated local government” if another similar establishment is located within 700 feet of the establishment. The Alcoholic Beverage Control Board (ABC Board) affirmed. Flanagan’s appealed, arguing that section 241.075 was unconstitutional local and special legislation in violation of Sections 59 and 60 of the Kentucky Constitution. The Court of Appeals agreed with Flanagan’s and declared the statute unconstitutional. The Supreme Court affirmed, holding that section 241.075 violates Sections 59 and 60 of the Kentucky Constitution. Remanded. View "Louisville/Jefferson County Metro Gov’t v. O’Shea’s-Baxter, LLC" on Justia Law

This appeal arose from a proceeding brought by the Klallam under the continuing jurisdiction of a 1974 decree issued by the U.S. District Court for the Western District of Washington, and it involved a dispute over the geographic scope of the Lummi's "usual and accustomed fishing grounds." The court held that the law of the case doctrine applies only when the issue was decided explicitly or by necessary implication in the previous disposition. In this case, the court held that no prior decision has yet explicitly or by necessary implication determined whether the waters immediately west of northern Whidbey Island are a part of the Lummi's usual and accustomed fishing grounds. Therefore, the district court erred in concluding that the issue was controlled by law of the case and the court reversed the grant of Klallam's motion for summary judgment, remanding for further proceedings. View "Lower Elwha Klallam Indian Tribe v. Lummi Nation" on Justia Law

This case concerned a dispute over the paving of a parking lot located on park land leased to a restaurant. A formal agreement between the restaurant and a community organization restricted the paving of the property, and the restriction was incorporated in administrative zoning orders. Still, the lot was paved. Baltimore County was, in this case, landlord of the property, code enforcer, and final administrative adjudicator of disputes arising under local land use laws. As administrative adjudicator, the County forbade the paving. As landlord, the County directed its tenant, Oregon, LLC, to pave the lot. As code enforcer, it refrained from taking action in response to the apparent violation of a final administrative order issued by the Board of Appeals. Plaintiffs brought suit against the County and Oregon seeking declaratory and mandamus relief. The circuit court ruled against Plaintiffs. The court of special appeals affirmed, concluding that Plaintiffs had failed to exhaust administrative remedies. The Court of Appeals largely affirmed, albeit on different grounds, holding (1) Plaintiffs need not initiate an administrative proceeding to pursue enforcement of the Board’s orders; (2) the circuit court properly granted summary judgment with respect to the mandamus counts of the complaint; and (3) the circuit court has authority to issue a declaratory judgment as to whether the Board’s orders were violated. Remanded.View "Falls Road Cmty. Ass’n, Inc. v. Baltimore County" on Justia Law

The 1977 Mine Act, 30 U.S.C. 801(c), authorizes the Mine Safety and Health Administration (MSHA) to promulgate mandatory health or safety standards, conduct regular inspections of mines, and issue citations and orders for violations of the Act or regulations. If an operator has a pattern of violations of mandatory health or safety standards and has been given required notice and an opportunity to comply, the Act authorizes issuance of an order requiring the operator to vacate the mine until the violation has been abated. The MSHA promulgated the first pattern of violations rule in 1990. The final rule issued in 2013, as 30 C.F.R. Part 104. Mining interests challenged the rule. The Sixth Circuit dismissed, concluding that the rule is not within the definition of a mandatory health or safety standard over which the Act grants appeals courts jurisdiction.View "Nat'l Mining Ass'n v. Sec'y of Labor" on Justia Law

Petitioners challenged the Commission's approval of a proposal for the construction of a natural gas compressor station in the Town of Minisink, New York. Petitioners argued, among other things, that the Commission's approval of the project was arbitrary and capricious, particularly given the existence of a nearby alternative site (the Wagoner Alternative) they insist is better than the Minisink locale. The court concluded that the Commission's consideration of the Wagoner Alternative falls within the bounds of its discretion and the court had no basis to upset the Commission's application of its Section 7 of the Natural Gas Act, 15 U.S.C. 717-717z, authority on this point; the court was satisfied that the Commission properly considered cumulative impacts of the Minisink Project; the court reject petitioners' argument that the Minisink Project violates the siting guidelines; and the court rejected petitioners' claims of procedural errors. Accordingly, the court denied the petitions for review. View "Minisink Residents for Enviro., et al. v. FERC" on Justia Law