Justia Zoning, Planning & Land Use Opinion Summaries

Plaintiffs David and Katherine Dietz appealed a superior court order that upheld a zoning board of adjustment (ZBA) decision for defendant Town of Tuftonboro, which granted intervenor Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. Sawyer Point’s house was located along the shore of Lake Winnipesaukee and within the Town’s Lakefront Residential Zoning District (District); the Dietzes owned the abutting property, also within the District. In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house, aware that the existing structure was located within the setback, and that a second floor addition would also be within the setback. Prior to construction, Sawyer Point submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. The Town’s building inspector granted the building permit, noting the addition would cause “no change in footprint.” In 2008-2009, Sawyer Point constructed a second addition to its house, again receiving permission from the Town to construct. In February 2014, Sawyer Point commissioned a survey which revealed, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. The New Hampshire Supreme Court concluded the trial court did not err when it sustained the ZBA and declined to weigh the cumulative effect of building within the lakefront setback throughout the Town. Moreover, relying on the evidence before it, the trial court agreed with the ZBA that there was little or no public benefit to be gained by correcting the violations. Because the Dietzes have failed to show that this finding was unreasonable or unsupported by the evidence, the trial court's decision was upheld. View "Dietz v. Town of Tuftonboro" on Justia Law

The merits of this appeal centered on three parcels of land, serving as links in a chain necessary to satisfy contiguity requirements of annexation. The first link, the Ten-Foot Strip, was a ten-foot wide, 1.25 mile-long parcel of land in the National Forest, which was managed by the United States Forest Service. The second link was property owned by the Mt. Nebo AME Church (Church Tract), and the third link was approximately 360 acres of unimproved real estate surrounded by the National Forest on three sides (Nebo Tract). In the fall of 2003, the Town of Awendaw sought to annex the Ten-Foot Strip, which required a petition signed by the Forest Service. The Town's representatives sent the Forest Service four letters from November 2003 through February 2004 in an effort to obtain its approval. The sole question before the South Carolina Supreme Court was whether Petitioners Lynne Vicary, Kent Prause, and the South Carolina Coastal Conservation League possessed standing to contest the Town’s annexation of land within the Francis Marion National Forest (Ten-Foot Strip). Because the Town allegedly acted nefariously in using a decade-old letter as a petition for annexation, the circuit court found Petitioners had standing and reached the merits. The court of appeals reversed, finding Petitioners lacked standing. The Supreme Court reversed the appellate court, finding Petitioners had standing to challenge the annexation of the Ten-Foot Strip. View "Vicary v. Town of Awendaw" on Justia Law

Georgetown was a "quaint unincorporated Gold Rush-era hamlet" in rural El Dorado County (the County, including defendant Board of Supervisors). Developer SimonCRE Abbie, LLC and its principals wanted to erect a Dollar General chain discount store on three vacant Main Street lots. Local residents acting through plaintiff Georgetown Preservation Society (Society) objected, claiming this would impair the look of their town. After the real parties slightly modified the project, the County adopted a mitigated negative declaration, finding there was no basis to require an environmental impact report (EIR). In response to the Society’s mandamus petition, the trial court duly applied Pocket Protectors v. City of Sacramento, 124 Cal.App.4th 903 (2004), and found the Society’s evidence supported a fair argument that the project may have a significant aesthetic effect on the environment, but rejected the Society’s claims about traffic impacts and pedestrian safety, and declined to address the Society’s claim the project was inconsistent with planning and zoning norms. Accordingly, the court issued a writ of mandate compelling the County to require an EIR. On appeal, the County and real parties, supported by the League of California Cities and the California State Association of Counties (which together filed one amicus curiae brief), contended the trial court erred in finding an EIR was needed. They principally relied on the fact that the County applied its Historic Design Guide principles and found the project met aesthetic standards. The Court of Appeal disagreed with this proposed method of bypassing CEQA and instead reinforced Pocket Protectors, holding that the Society’s evidence of aesthetic impacts was sufficient to trigger the need for an EIR. "A planning or zoning decision may be entitled to greater deference than a mitigated negative declaration, but such a determination is no more than it purports to be and is not a CEQA determination." View "Georgetown Preservation Society v. County of El Dorado" on Justia Law

The Supreme Court reversed the judgment of the circuit court, reinstated the determination of the Fairfax County Board of Zoning Appeals (BZA), and entered final judgment for the Board of Supervisors of Fairfax County, holding that the circuit court erred when it held that Va. Code 15.2-2307(D) creates a vested right to an originally illegal use of a building or structure after the owner has paid taxes to the locality for that building or structure for fifteen years or more.Defendants owned real property located in McLean, Virginia. The Fairfax County Zoning Administrator issued a notice of violation (NOV) to Defendants regarding the property because a detached garage and garden house locate on the property had been converted to dwelling, resulting in three complete and separate dwellings on the property. Defendants appealed the NOV to the BZA, arguing that the garage and garden house were grandfathered. The BZA concluded that Defendants were in violation of the relevant ordinance. The circuit court reversed, holding that the nonconforming structures were protected under section 15.2-2307(D)(iii). The Supreme Court reversed, holding that the trial court erred in holding that 15.2-2307(D) protected Defendants’ illegal use of their garden house and garage. View "Board of Supervisors of Fairfax County v. Cohn" on Justia Law

By a stipulated decree issued in 1920, the Tehama County Superior Court adjudicated water rights in Mill Creek. It declared the natural flow of the water up to a total rate of 203 cfs had been appropriated by the parties appearing before it for use upon their and other persons’ lands. The decree entitled these original owners of the water rights and their successors to continue diverting from Mill Creek a total of 203 cfs of water, and it allotted them shares in the amount of water each could divert. It entitled the owners to use or dispose of their share of water in any manner, at any place, or for any purpose, or in accordance with whatever agreement the owners may make with any other person or entity. As part of the decree, the court also appointed a water master of Mill Creek to implement its order. The decree gave the water master exclusive authority to divert and apportion the water during the irrigation season according to the decree’s terms, measure the diversions, and control and superintend the diversions and the gates and ditches used to divert the water. The owner of an appropriative right to water in Mill Creek sought declaratory relief to determine whether, under the judicial decree that established the right, it could: (1) use water appropriated to it on a year around basis and not only during the irrigation season; (2) use or transfer its water outside of the creek’s watershed; and (3) make these changes in the use and location of use without obtaining prior approval of the creek’s water master or the superior court. The trial court declared the decree did not give the owner these rights. The Court of Appeal agreed with the Orange Grove Irrigation District that the trial court’s holding was incorrect: the court created a condition that did not exist in the decree, and it did so based on a misunderstanding of the extent of control the decree granted to Los Molinos Mutual Water Company and of the operation of Water Code section 1706. Accordingly, the Court reversed and remanded the trial court's judgment and remanded for further proceedings. View "Orange Cove Irrigation Dist. v. Los Molinos Mutual Water Co." on Justia Law

The Supreme Judicial Court affirmed the judgment of the district court finding that the City of Portland had proved that Appellant, the owner of an apartment building, had violated violated fire, electrical, and life safety provisions of Maine statutes and the Portland City Code, holding that the record supported the court’s decision.The City notified Appellant of code violations on eight occasions, but Appellant did not remedy significant violations that endangered her tenants. Ultimately, the City commenced an enforcement action. After a trial that Appellant failed to attend, the court found that the City had proved multiple code violations. The court imposed penalties on Appellant of more than $500,000, plus costs and attorneys fees. On appeal, Appellant challenged the district court’s determination of the penalties. The Supreme Judicial Court affirmed, holding that the court correctly applied the statute governing penalties, Me. Rev. Stat. 30-A, 4452(3)(E). View "City of Portland v. Chau" on Justia Law

The Supreme Court reversed the decision of the trial court sustaining Plaintiff’s administrative appeal, holding that the trial court erred in determining that Defendant’s proposed revision of boundary lines between certain adjacent lots constituted a new subdivision under Conn. Gen. Stat. 8-18 and erred in applying section III.F.7 of the Burlington Zoning Regulations (regulations).In finding that Defendant’s proposed lot line revisions constituted a subdivision, the trial court applied section IV.B.5 of the regulations, which requires an increased minimum lot area for new subdivisions. The court also applied section III.F.7, which governs the establishment of non-conforming uses on preexisting lots. The Supreme Court held (1) Defendant’s proposed lot line revisions did not create a subdivision because the revisions did not divide one parcel of land into three or more parts; and (2) Defendant did not propose the establishment of a nonconforming use because the property lines, as revised, met the size requirements applicable to lots in existence as of October 1, 1983, the date the town of Burlington adopted section IV.B.5 of the regulations. View "Cady v. Zoning Board of Appeals" on Justia Law

In 2004-2006, Pulte purchased 540 acres of Clarksburg land, then governed by the 1994 Master Plan, which divided development into four stages. In the fourth stage, the area containing Pulte’s land was to be developed into residential communities. Pulte’s land was designated as a receiving property for Transferable Development Rights (TDRs) and was zoned for one-acre lots. Pulte could increase the allowable density to two units per acre by purchasing TDRs from agricultural properties in other Montgomery County areas, which would restrict future development of the agricultural property. Pulte invested 12 million dollars in TDRs. Under the Plan, there were prerequisites to Stage 4 development. All had occurred by 2009. The Plan stated that Stage 4 developments can proceed once public agencies and the developer have complied with all “implementing mechanisms,” which included Water and Sewer Plan amendments. Pulte submitted its Water and Sewer Request to the County and the Maryland-National Capital Park and Planning Commission in 2009, with a $10,000 filing fee. The County never acted on Pulte’s application. In 2012, Pulte submitted a Pre-Application Concept Plan to the Commission, which rejected the plan. The agencies refused to meet and stopped responding to Pulte’s communications but reopened the Plan to study the watershed in which Pulte’s land is located and ultimately imposed regulatory changes that severely reduced the number of dwellings Pulte could build and imposed additional costly burdens. The Fourth Circuit affirmed the dismissal of Pulte’s due process, equal protection, and regulatory taking claims, stating that federal courts are not the appropriate forum to challenge local land use determinations. Pulte had no constitutional property interest in developing its land as it had contemplated, and local authorities had a plausible, rational basis for their actions. View "Pulte Home Corp. v. Montgomery County" on Justia Law

In 1998, the State Lands Commission granted Hanson’s predecessor 10-year leases, authorizing commercial sand mining from sovereign lands, owned by the state subject to the public trust, and managed by the Commission, under the Central San Francisco Bay, Suisun Bay, and the western Sacramento-San Joaquin River Delta. In 2006, Hanson requested extensions of several leases, but they expired before the Commission made its decision. The Commission granted four new 10-year leases covering essentially the same parcels in the San Francisco Bay. In 2012, opponents sought a writ of mandate to compel the Commission to set aside its approval of the project. In 2015, a different panel of the court of appeal found that the Commission’s environmental review of the project complied with the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), but that the Commission violated the public trust doctrine by approving the project without considering whether the sand mining leases were a proper use of public trust lands. The Commission reapproved the project; the court discharged a writ of mandate. The court of appeal affirmed. While the Commission erred by concluding that private commercial sand mining constitutes a public trust use of sovereign lands, there is substantial evidence that the project will not impair the public trust. View "San Francisco Baykeeper, Inc. v. State Lands Commission" on Justia Law

The Alliance challenged the approval of a project comprising a fuel station, convenience store, and quick serve restaurant on The Alameda and the adoption of a mitigated negative declaration for the project. The Alliance sought to compel the preparation of an Environmental Impact Report (EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000). In March 2016, the trial court issued a “Peremptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” requiring the city to set aside the resolutions, reconsider the significance of potential noise impacts, and take further action consistent with CEQA. The Alliance did not appeal from that decision but appealed from the December 2016 “Final Judgment on Petition for Writ of Mandamus,” which determined that the city’s supplemental return complied with the peremptory writ and with CEQA. The court of appeal affirmed, concluding that the March 2016 decision was the final judgment and the December 2016 decision was a post-judgment order. The court rejected claims that the city was required to prepare an EIR because there was substantial evidence in the record supporting a fair argument that the proposed project may have significant, unmitigated traffic and noise impacts and that the project violated the municipal code governing “formula retail businesses.” View "Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista" on Justia Law