Justia Zoning, Planning & Land Use Opinion Summaries

Defendant Town of Bedford appealed a superior court order: (1) ruling that the statutory scheme governing a municipality’s obligations to compensate a former owner of property that the municipality acquired by the execution of a tax deed violated Part I, Article 12 of the New Hampshire Constitution; and (2) awarding plaintiff Richard Polonsky equitable relief. In 2008, plaintiff inherited property in Bedford. Plaintiff failed to pay his real estate taxes in 2008, 2009, and 2010. Consequently, tax liens were imposed on the property for each of those years. When plaintiff failed to redeem the property by paying the amount of the liens plus interest, the town tax collector issued a tax deed conveying the property to the Town on May 31, 2011. The Town did not take any action regarding the property until 2013, when it contacted plaintiff by telephone to advise him of the amount of back taxes, interest, costs, and penalties required to repurchase the property, and of the Town’s intention to sell the property by auction if he chose not to repurchase it. Plaintiff offered to pay back taxes but requested that the Town waive the additional charges, citing ongoing medical problems that began in 2009. The Town Council voted to reject plaintiff’s offer and began the sale process. Six months later, the Town formally noticed plaintiff of its intent to sell the property. Although plaintiff did not respond to the notice, the Town did not sell the property. In April 2015, plaintiff received another notice of the Town’s intent to sell the property, informing him of his right to repurchase. Plaintiff again offered to pay the amount of back taxes and interest, but requested that the Town waive the penalties. The Town rejected the offer. Through counsel, plaintiff twice requested for reconsideration. Then plaintiff filed suit, alleging, in part, that the Town’s intent to keep excess proceeds from an eventual sale of the property violated his “right to the equity in the subject property” under the state constitution. The New Hampshire Supreme Court affirmed the trial court, finding that RSA 80:89, VII extinguished a municipality’s duty to provide excess proceeds for the taking of his or her property by tax deed after three years from the date of the recording of the deed, without requiring that the municipality execute that duty; the statute’s three-year limitation upon the municipality’s duty to pay excess proceeds violated Part I, Article 12 of the New Hampshire Constitution. Because the Town acquired plaintiff’s property without providing compensation, the trial court did not err in awarding equitable relief to plaintiff. View "Polonsky v. Town of Bedford" on Justia Law

The Court of Appeal affirmed the trial court's judgment denying El Rovia's first amended petition for administrative mandamus. At issue is the City's 2015 rent control Ordinance No. 2860, which at least for some purposes states that in the calculation of rents, the base year is the "2012 calendar" year. El Rovia argued that 2015, not 2012, is the lawful base year for the determination of base rent adjustments and that the ALJ's contrary decision was not supported by substantial evidence.The court found no error in the City's selection of 2012 as the base year, and there was no error in using comparable 2012 rental rates to determine base year rent. The court also held that substantial evidence supported the base rent determination of $525. View "El Rovia Mobile Home Park, LLC v. City of El Monte" on Justia Law

GIP purchased property from a steel mill’s bankruptcy estate, omitting the “Eastern Excluded Property” (EEP). GIP purchased some personal property located on the EEP, which contains two piles comprising slag (a steel manufacturing byproduct), kish (a byproduct of a blast furnace operation), and scrap. Each pile occupied more than 10 acres and was more than 80 feet high. GIP's "Itemization of Excluded Item from Sale” referred to: “All by-products of production other than kish and 420,000 cubic yards of slag” on the EEP “with a reasonable period of time to remove such items.” The EPA began investigating contaminants leaching from the piles. While GIP was negotiating for the separation of recoverable metals, the EPA decided to reduce the size of the piles. In 2009-2013, EPA contractors recovered and sold 245,890 tons of material and recovered and used 92,500 cubic yards of slag onsite for environmental remediation; they processed approximately 50% of the piles, spending about $14.5 million, about a million more than income from sales. The EPA compacted the materials to minimize leachate, leaving further remediation to state environmental authorities. GIP did not attempt its own recovery operation during the EPA remediation.GIP sued, alleging “takings” of the slag, kish, and scrap. The trial court awarded GIP $755,494 for the slag but awarded zero damages for the kish and scrap. The Federal Circuit vacated in part. GIP had no claim to any particular subset of slag. The trial court erred in finding that the EPA somehow prevented GIP from recovering its full allotment of slag; GIP cannot establish a cognizable property interest in the slag that was recovered. The court affirmed in part. GIP’s unreliable calculations left the trial court without competent evidence relating to a critical component of the damages calculation with respect to the kish and scrap. View "Gadsden Industrial Park, LLC v. United States" on Justia Law

The Supreme Court affirmed the judgment of the trial court determining that Defendant's use of its barn on property it owned in Litchfield Township was utilized primarily for the production of wine made from grapes and for the sale of wine produced therein in order for the use of the barn to be exempt from zoning regulation pursuant to Ohio Rev. Code 519.212(A), holding that the trial court did not err.Defendant owned a barn on land designated as residential. The Litchfield Township Board of Trustees sought to enjoin Defendant from using its land for weddings and other social gatherings. On remand, the trial court determined that the barn met the "vinting and selling wine" exemption under section 519.21(A). The court of appeals affirmed. The Supreme Court affirmed, holding that the trial court properly applied the primary-use test under section 519.21(A) in determining that the primary use of the barn was for vinting and selling wine. View "Litchfield Township Board of Trustees v. Forever Blueberry Barn, LLC" on Justia Law

Santa Maria Reservoir Company (“SMRC” or the “Company”) was a mutual reservoir company responsible for storing and releasing water to its shareholders, who owned the right to use that water. SMRC’s water was stored in its two reservoirs: the Santa Maria Reservoir and the Continental Reservoir. SMRC was contacted about leasing water from SMRC’s shareholders to replace depletions to the Rio Grande. In May 2013, the Division Engineer submitted a written report in which he recommended “that th[e] requested change of water right be granted” with one condition: “that such change . . . not expand the consumption of the water right beyond that which has been the historical practice for agricultural purposes.” SMRC met with various opposers to explore what terms and conditions might assuage their concerns. Based on their input, it drafted a proposed decree in which it agreed to replicate accretions (including return flows) to the Rio Grande to prevent injury to other water rights diverting from the Rio Grande. By April 2016, all opposers except appellant Jim Warner had stipulated to the entry of SMRC’s proposed decree. Warner’s opposition was premised on his concern that SMRC’s application, if granted, would interfere with his downstream surface and groundwater rights. Warner, a rancher, owned two parcels of land on which he grew hay for his livestock using flood irrigation. His properties were located in the Closed Basin, generally east and north of land that received the water SMRC delivered through the Rio Grande Canal. Because he flood irrigated, Warner needed the groundwater beneath his lands to stay at a level close enough to the surface to reduce ditch losses and allow water to carry further across his crop land. After review of the water rights at issue and proposed uses, the Colorado Supreme Court concluded Warner was not injured by the water court’s approval of the change-of-use application submitted by SMRC with respect to the water it diverted from the Rio Grande into the Closed Basin. "Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC’s application simply revealed to him that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had ‘til it was gone." View "Santa Maria Reservoir Co. v. Warner" on Justia Law

For nearly a century, the Anaconda Copper Smelter contaminated 300 square miles with arsenic and lead. For 35 years, the EPA has worked with the now-closed smelter’s current owner, Atlantic Richfield, to implement a cleanup plan. Landowners sued Atlantic Richfield in state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on property rehabilitation. The landowners’ proposed plan exceeds the measures found necessary to protect human health and the environment by EPA. Montana courts rejected an argument that the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, section 113, stripped them of jurisdiction. Section 113 states that no potentially responsible party (PRP) "may undertake any remedial action” at the site without EPA approval and provides federal courts with “exclusive original jurisdiction over all controversies arising under” the Act.The U.S. Supreme Court affirmed in part. The Act does not strip the Montana courts of jurisdiction over this lawsuit. The common law claims “arise under” Montana law, not under the Act. Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act while section 113(h) deprives federal courts of jurisdiction over certain “challenges” to remedial actions; section 113(h) does not broaden section 113(b).The Court vacated in part. The landowners are PRPs who need EPA approval to take remedial action. Section 107, the liability section, includes any “owner” of “a facility.” “Facility” is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” Because arsenic and lead are hazardous substances that have “come to be located” on the landowners’ properties, the landowners are PRPs. Even “innocent landowners," whose land has been contaminated by another, and who are shielded from liability by section 107(b)(3), may fall within the broad definitions of PRPs in sections 107(a)(1)–(4). Interpreting PRPs to include property owners reflects the objective of a single EPA-led cleanup effort rather than thousands of competing efforts. The EPA policy of not suing innocent owners does not alter the landowners’ status as PRPs. View "Atlantic Richfield Co. v. Christian" on Justia Law

Nampa Highway District No. 1 (NHD) brought this action seeking to quiet title to a thirty-three-foot-wide strip of land constituting the south half of West Orchard Avenue in Canyon County, Idaho. NHD claimed that a 1941 deed conveyed the land to NHD. Appellants (defendants-below) argued that because the deed was not recorded until 1989, it did not affect their interests pursuant to the “Shelter Rule,” which protected a purchaser with notice if their predecessor in interest was an innocent purchaser. The district court granted summary judgment in NHD’s favor. After review, the Idaho Supreme Court reversed, finding the district court erred in granting summary judgment when there was a genuine issue of material fact as to what a reasonable investigation by Appellants' predecessors in interest would have revealed. The Supreme Court vacated the district court's declaration that NHD was the fee simple titleholder of the right-of-way, and the matter was remanded for further proceedings. View "Nampa Hwy Dist #1 v. Knight" on Justia Law

The Oregon Department of State Lands (DSL) issued a permit, pursuant to ORS 196.825, for Wal-Mart Stores, Inc. (“Walmart”) to fill and remove some wetlands on private property in order to build a new store in The Dalles. Citizens for Responsible Development in The Dalles (Citizens) opposed the project and appealed the fill permit, arguing that DSL lacked authority to issue the permit because DSL did not find that there was a “public need” for the project. The Court of Appeals agreed with Citizens that DSL erred in issuing the permit “[b]ecause DSL found that it was inconclusive whether the project would address a public need.” The Oregon Supreme Court granted certiorari to construe ORS 196.825, and thereafter affirmed the Court of Appeals: the matter was remanded to DSL. "[A]lthough we disagree with its premise that ORS 196.825 conditions the issuance of every permit on a finding that the proposed project will serve a 'public need,' . . . Because DSL found that all categories of public benefit from the project were 'inconclusive' but failed to find that the project would not 'interfere' with the state’s 'paramount policy,' the record does not support its determination that the project will not 'unreasonably interfere.'” View "Citizens for Resp. Devel. in The Dalles v. Walmart" on Justia Law

More than 70 years ago, two railroad companies helped the United States Atomic Energy Commission build a track to the Hanford Nuclear Reservation in return for the right to use the track without paying rent. After the nuclear reactors at Hanford were decommissioned, the United States transferred nearly 800 acres, including the track at issue, to the Port of Benton (Port), subject to existing agreements and potential reversion to the United States if certain conditions were not met. The Port continued to honor the agreements and operate the railroad. The Port’s decision not to charge rent was challenged by a taxpayer, Randolph Peterson, as an unconstitutional gift of public funds. This challenge was dismissed at summary judgment. After review of the trial court record, the Washington Supreme Court found no constitutional violation and affirmed dismissal. View "Peterson v. Dep't of Revenue" on Justia Law

Sonia and Hector Ruiz's (together Ruiz) home flooded because their privately owned underground storm drain pipe rusted out after 50 years of use. They sued the County of San Diego (County) for inverse condemnation, and after a bench trial the court entered judgment in their favor (essentially the cost of replacing their metal pipe (the Ruiz pipe)) with a reinforced concrete pipe. The primary issue on appeal was whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless became a public improvement because "public water" drained through it. After review of the trial court record, the Court of Appeal agreed with the County that under settled law, the answer is no. The County also contended the trial court's alternative basis for imposing liability, that the County acted unreasonably in discharging water through a public drainage system that connects to the Ruiz pipe, also failed. "Even viewing the evidence most favorably to Ruiz, the evidence is insufficient to sustain the judgment on this theory." Accordingly, judgment was reversed with directions to enter judgment for the County. View "Ruiz v. County of San Diego" on Justia Law