Justia Zoning, Planning & Land Use Opinion Summaries

A Vermont trial court determined that both the Town of Isle La Motte and the road commissioner Shelby Turner were entitled to qualified immunity and granted their motions for summary judgment after concluding that decisions regarding road alterations were discretionary, “involv[ing] an element of judgment or choice,” rather than ministerial, meaning “prescribe[d].” The underlying tort action in this appeal followed an August 2016 motor vehicle accident in the Town: Plaintiff Paul Civetti was driving a propane truck on Main Street when he lost control of the vehicle causing it to roll over and come to rest on its roof. Plaintiff argued defendants were negligent in failing to widen Main Street in accordance with Vermont Town Road and Bridge Standards, causing his accident. The State of Vermont promulgated Town Road and Bridge Standards to serve as guidance for municipalities when they decide to construct or alter a town highway. Plaintiff filed a negligence claim against defendants the Town of Isle La Motte and Turner, in his capacity as road commissioner, seeking damages for plaintiff’s injuries. The parties disputed what authority, if any, the Town Selectboard delegated to the road commissioner to construct, lay out, and alter Town roadways. The Vermont Supreme Court agreed with the trial court that deciding whether to widen Main Street was discretionary, thus entitling both the Town and the road commissioner to qualified immunity. The Court therefore affirmed. View "Civetti v.Town of Isle La Motte, et al." on Justia Law

In this action brought by the City of Sioux Falls seeking to have a partially completed house demolished under a City ordinance the Supreme Court affirmed the circuit court's grant of summary judgment to the City, finding that the City had shown that "normal construction" had ceased for over eighteen months and allowing the City to demolish the structure on the property.In 2013, Defendants began construction on a house. Construction later stalled. The City issued an order for demolition to Defendants, finding the structure in violation of a City ordinance providing that a structure be demolished if "there was been a cessation of normal construction of any structure for a period of more than 18 months...[.]" When Defendants failed to commence demolition the City brought this complaint seeking enforcement of the ordinance. The circuit court granted summary judgment to the City. The Supreme Court affirmed, holding that the City met its burden of establishing the absence of "normal construction" for a period of eighteen months. View "City of Sioux Falls v. Strizheus" on Justia Law

The Jenkinses bought a one-bedroom home, built in 1909, with a small accessory cottage in San Anselmo. Following conversations with an architect, contractors, and the Town Planning Director, they sought permits to demolish the existing structures and build a new home with a detached studio. The Planning Commission approved the project. The Jenkinses nevertheless worked with neighbors to accommodate their concerns and submitted revised plans, which were also approved. Four individuals unsuccessfully appealed to the Town Council. Attorney Brandt-Hawley filed a mandamus petition on behalf of an unincorporated association and an individual, alleging violations of the California Environmental Quality Act (CEQA), although the appeal did not include any CEQA claim and CEQA has a categorical exemption for single-family homes, and “violation of the Town Municipal Code,” without citation.The trial judge denied the petition, criticizing aspects of Brandt-Hawley’s briefing and advocacy. Petitioners appealed, then offered to dismiss the appeal for a waiver of fees and costs. The Jenkinses rejected the offer. On the day the opening brief was due, Brandt-Hawley dismissed the appeal. The Jenkinses sued Brandt-Hawley for malicious prosecution. The court denied Brandt-Hawley’s special anti-SLAPP (strategic lawsuit against public participation) motion to strike. The court of appeal affirmed. The Jenkinses met their burden under step two of the anti-SLAPP procedure demonstrating a probability of success on their complaint. View "Jenkins v. Brandt-Hawley" on Justia Law

The Supreme Court affirmed the decision of the Turner County Board of Adjustment to grant Intervenors, Steve and Ethan Schmerichel and Norway Pork Op, LLC, a conditional use permit (CUP) for a large concentrated animal feed operation (CAFO), holding that there was no error.In 2018, the Schmeichels sought a CUP for a large CAFO that would house 7,400 head of swine. The Board approved a CUP for the operation. Petitioners, nearby landowners, petitioned the circuit court for a writ of certiorari challenging the legality of the CUP. The circuit court determined that Petitioners had standing to challenge the CUP but denied their petition. Petitioners appealed the denial of certiorari and the Board and Intervenors appealed the issues of standing and the court's refusal to impose attorney fees on Petitioners. The Supreme Court affirmed, holding that there was no error or abuse of discretion. View "Powers v. Turner County Bd. of Adjustment" on Justia Law

This matter involved permits issued by the Department of Environmental Protection (the Department) to Gibraltar Rock, Inc., a Pennsylvania corporation seeking to operate a quarry on a 241-acre property in New Hanover Township (the Township). The Environmental Hearing Board (Board) rescinded the permits finding that their issuance was inconsistent with statutory and regulatory requirements. The Commonwealth Court reversed the Board’s decision for reasons that were never raised by the parties, including that the Board’s opinion effectuated an unconstitutional taking. Based on its review, the Pennsylvania Supreme Court found that the Commonwealth Court erred in considering issues not raised by Gibraltar and then by reversing the Board’s rescission of the permits. The Court therefore vacated the order of the Commonwealth Court and remanded for the Commonwealth Court to consider the issue raised in Gibraltar’s petition for review. View "Gibraltar Rock v. Dept. of Env. Protection" on Justia Law

The Supreme Court reversed the judgment of the circuit court and quashed an order of mandamus requiring the City of Creve Coeur to issue a conditional use permit (CUP), holding that the circuit court erroneously applied the law.Property Owners, which owned adjacent parcels of property in the City, entered into a contingent agreement to sell their property to QuikTrip, a sale that was contingent upon the City issuing a CUP allowing QuikTrip to construct a new service station. The City denied the application. The circuit court entered an order in mandamus finding that the City's ordinances required the City to issue the CUP. The Supreme Court reversed and quashed the mandamus order, holding that the circuit court improperly overrode the City's discretion in violation of Mo. Rev. Stat. 536.150.1. View "BG Olive & Graeser, LLC v. City of Creve Coeur" on Justia Law

Walker Commercial, Inc. (“Walker”) filed a Colorado Rule of Civil Procedure 106(a)(4) complaint seeking review of the decision of Marshall Brown, the Director of Water of the City of Aurora (“Director”), to levy a storm drain development fee against Walker’s real property. Walker filed its Rule 106(a)(4) complaint in district court thirty days after the Director’s final decision—two days past Rule 106(b)’s twenty-eight-day filing deadline. Walker contended that C.R.C.P. 6(b) allowed the district court to extend Rule 106(b)’s filing deadline upon a showing of excusable neglect. The Director disagreed, arguing that Rule 6(b) did not apply to Rule 106(b) because Rule 106(b)’s deadline established a limitation period that was jurisdictional and that must be strictly enforced. The Colorado Supreme Court agreed with the Director and concluded that Rule 6(b) does not apply to extend Rule 106(b)’s twenty-eight-day filing deadline. The Court concluded the district court properly dismissed Walker’s Rule 106(a)(4) amended complaint as untimely. Because the original complaint was untimely, the trial court also properly dismissed Walker’s additional Claim 3 raised in its amended complaint. View " Brown v. Walker Commercial" on Justia Law

Division purchased two office buildings from the city that included a short-term leaseback at below-market rent. Division alleged that the assessor failed to take the leaseback into account when valuing the buildings for property tax purposes and claims this violated Revenue and Taxation Code section 402.1. After failing to persuade the City’s Assessment Appeals Board, Division filed suit. The trial court dismissed, holding that the lease did not constitute an “enforceable restriction” under section 402.1.The court of appeal affirmed, noting that Division paid $53 million, a price discounted to reflect the leaseback. While a purchase price may play a significant role in the reassessment of property upon its sale, that price is only the beginning of the inquiry; one factor that may skew the purchase price and make it an unreliable indicator of fair market value is an agreement containing restrictions on the buyer’s use of the property. Such restrictions do not bind the assessor. Government-imposed land use restrictions must be taken into account when a property is valued for assessment purposes but under section 402.1 “enforceable restrictions” are land use restrictions imposed by the government under its police power, not restrictions agreed to by a public entity selling property to a private buyer in an ordinary arm’s-length transaction. View "290 Division (EAT), LLC v. City and County of San Francisco" on Justia Law

The Supreme Court affirmed in part and reversed in part the decision of the court of appeals dismissing the complaint in this case involving the removal of a Confederate monument with prejudice, holding that dismissal should have been without prejudice.After the City of Winston Salem decided to remove a Confederate monument from the grounds of the former Forsyth County Courthouse Plaintiff, the United Daughters of the Confederacy, North Carolina Division, Inc., filed a complaint against the City and County seeking the issuance of a temporary restraining order and preliminary injunction enjoining Defendants from taking affirmative action to remove or relocate the monument prior to full adjudication of the respective rights of the parties. The trial court dismissed the case with prejudice, concluding that Plaintiff failed establish standing and failed to state a claim upon which relief could be granted. The court of appeals affirmed. The Supreme Court reversed in part, holding that the trial court (1) did not err by dismissing the amended complaint for lack of standing; but (2) erred by dismissing the complaint with, rather than without, prejudice. View "United Daughters of the Confederacy, N.C. Division v. City of Winston-Salem" on Justia Law

The Supreme Judicial Court vacated the order of the superior court ordering Plaintiffs to post a $35,000 bond, holding that the bond provision set out in Mass. Gen. Laws ch. 40A, 14 applies to comprehensive permits issued under Mass. Gen. Laws ch. 40B, 21 to promote low- and moderate-income housing and that the costs recoverable under the bond provision do not include attorney's fees or delay damages.Plaintiffs filed a complaint challenging the decision of the zoning board of appeals of Salisbury issuing a comprehensive permit to build seventy-six condominium units at 6 Forest Road in Salisbury. Defendant filed a motion for Plaintiffs to post a $50,000 surety or cash bond pursuant to Mass. Gen. Laws ch. 40A, 17. The superior court judge granted the motion in part, reducing the bond to $35,000. Plaintiffs appealed the bond order. The Supreme Judicial Court vacated the order, holding (1) the bond provision applies to appeals of comprehensive permits; (2) the court should only order a bond if the judge find that a plaintiff's appeal seems so devoid of merit that it may reasonably be inferred to have been brought in bad faith; and (3) remand was required in this case. View "Marengi v. 6 Forest Road LLC" on Justia Law