Justia Zoning, Planning & Land Use Opinion Summaries

The City of San Diego approved a development project at Balboa Park. Most of Balboa Park's Central Mesa was a National Historic Landmark District and the Cabrillo Bridge is a National Historical Landmark. The purpose of the project was to restore pedestrian and park uses to Balboa Park's Central Mesa and to alleviate vehicle and pedestrian conflicts. A new bridge, 'Centennial Bridge,' would connect the eastern end of Cabrillo Bridge to the western side of the Alcazar parking lot. From that point a new 'Centennial Road' would traverse through the Alcazar parking lot exiting to the east, continue to the south past a new Organ Pavilion [underground] parking structure and then connect to Presidents Way. Additional parkland would be provided atop the new parking structure. A tram would provide service from the parking structure to the Plaza de Panama with possible expansion to serve other areas of the Park. Excavation activities required for construction of the underground parking structure would require that the project dispose of excess soils within the inactive Arizona Street Landfill." Save Our Heritage Organisation (SOHO) appealed a judgment denying its petition for writ of mandamus challenging the approval by the City of an environmental impact report (EIR) addendum for revisions to the project. SOHO contended the City's approval of the addendum violated the California Environmental Quality Act (CEQA) in two respects: (1) CEQA Guidelines section 15164 was invalid because CEQA contained no authority for the addendum process and the addendum process conflicted with CEQA's public review requirements; and (2) the City approved the project revisions without making new findings under section 21081. The Court of Appeal concluded SOHO did not meet its burden of establishing the addendum process was invalid. Furthermore, the Court concluded the City was not required to make findings under section 21081. View "Save Our Heritage Organisation v. City of San Diego" on Justia Law

The city approved an agreement with PG&E which authorized and imposed conditions on the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report stated that the removal of protected trees constituted a Major Tree Removal Project, requiring tree removal permits and mitigation. PG&E was willing to provide requested information and applicable mitigation but claimed that an exemption from obtaining any discretionary permits. The city agreed to process the project under Lafayette Municipal Code section 6-1705(b)(S), which allows the city to allow removal of a protected tree “to protect the health, safety and general welfare of the community.” The trial court dismissed a challenge. The court of appeal reversed in part. Claims asserted under the planning and zoning law (Government Code 65000), the city’s general plan, and the city’s tree protection ordinance are barred by Government Code 65009(c)(1)(E), as not timely-served. The statute requires that an action challenging a decision regarding a zoning permit be filed and served within 90 days of the decision; the original petition was timely filed on June 26, 2017, but was not served until after the 90-day deadline. The claim under the California Environmental Quality Act (Pub. Resources Code, 21000) was timely filed and served under Public Resources Code 21167(a) and 21167.6(a). View "Save Lafayette Trees v. City of Lafayette" on Justia Law

A six month delay between a property inspection and notice of a municipal ordinance citation does not violate due process. The Seventh Circuit affirmed the district court's dismissal of plaintiff's amended complaint for failure to state a procedural due process claim under 42 U.S.C. 1983. The court held that the administrative and judicial proceedings available for plaintiff to challenge her citation for growing weeds greater than 10 inches tall in her garden satisfied due process, and the accuracy of the city's interpretation of its ordinance did not implicate the U.S. Constitution. Therefore, plaintiff failed to allege facts supporting a plausible violation of her due process rights. The court rejected plaintiff's alternative theory that the city misinterpreted the ordinance's plain text. View "Tucker v. City of Chicago" on Justia Law

The California Coastal Act of 1976 requires local governments like defendant City of Solana Beach (the City) to develop a local coastal program (LCP). The City submitted an amended LUP (ALUP) to the Commission. The Commission approved the ALUP with suggested modifications and the City accepted those modifications. In April 2013, Beach and Bluff Conservancy (BBC) brought this action for declaratory relief and traditional mandate under Code of Civil Procedure section 1085, challenging seven specific policies of the City's ALUP as facially inconsistent with the Coastal Act and/or facially unconstitutional. The court granted BBC's motion and petition for writ of mandate as to two of the challenged policies and denied the motion and writ petition as to the other five challenged policies, and entered judgment accordingly. BBC's appeal and the cross-appeals by the City, the Commission, and Surfrider Foundation (Surfrider) centered on five of the seven policies at issue in the trial court. BBC contended the court erred in rejecting its claims that one of those policies is facially inconsistent with the Coastal Act, another was facially unconstitutional under the "unconstitutional conditions doctrine," and a third was both inconsistent with the Coastal Act and unconstitutional. In their cross-appeals, the City, the Commission, and Surfrider contended the court erred in granting BBC's motion for judgment and petition for writ of mandate as to two of the policies. The City and the Commission also raised a number of procedural challenges to the judgment. The Court of Appeal concluded BBC's exclusive remedy to challenge policies in the ALUP on the ground they were inconsistent with the Coastal Act was to file a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 rather than an action for declaratory relief and traditional mandamus. And assuming, without deciding, that administrative mandamus was not the exclusive remedy for BBC's facial challenges to two policies on constitutional grounds, the Court concluded those challenges failed on the merits. View "Beach & Bluff Conservancy v. City of Solana Beach" on Justia Law

Plaintiff San-Ken Homes, Inc. (San-Ken) appealed a superior court decision requiring it to apply for registration or exemption with defendant New Hampshire Attorney General, Consumer Protection and Antitrust Bureau (Bureau), under the Land Sales Full Disclosure Act (Act), and to make certain improvements to Old Beaver Road in the Oakwood Common subdivision in New Ipswich. The Act allows for exemptions from registration under certain circumstances. In October 2006, the Bureau granted a certificate of exemption to the development in which Old Beaver Road was located, 112 Chestnut, “as to the offer and sale of” the 16 lots “because of the limited character of the offering and because the subdivision is adequately regulated by municipal ordinances.” In June 2014, San-Ken, which had no relationship to 112 Chestnut, purchased nine undeveloped lots at a foreclosure sale and recorded title to the property. The New Ipswich Planning Board held a hearing on San-Ken’s application for modification of the Board’s original conditions for Old Beaver Road. As an alternative to the Board revoking the subdivision approval, Town counsel recommended that it entertain a motion to waive the prior road completion requirements and specifications on the condition that San-Ken complete certain improvements to the road at its own expense. San-Ken satisfied all of the Board’s requirements. San-Ken later appealed to the trial court challenging the Bureau's authority under the Act to require it to be registered or exempted and to require it to make improvements to Old Beaver Road. When that challenge was unsuccessful, San-Ken appealed to the New Hampshire Supreme Court, arguing the trial court erred in: (1) applying a mistaken standard of review; (2) finding San-Ken to be a successor subdivider under the Act; and (3) determining that the Bureau was within its authority to require San-Ken to further improve Old Beaver Road as a condition of obtaining a certificate of exemption. The Supreme Court concluded the trial court erred as a matter of law in finding that the Act authorized the Bureau to require San-Ken to complete Old Beaver Road to the standard promised by 112 Chestnut as a condition of obtaining a certificate of exemption. View "San-Ken Homes, Inc. v. New Hampshire Attorney General" on Justia Law

In 2012 and 2013, petitioners submitted permit applications to the San Juan County Department of Community Development. The county code listed 19 items that a party must submit to complete an application, one of which is paying "[t]he applicable fee." Petitioners paid the applicable fees, and the permits were issued. On March 18, 2015, almost three years later, petitioners filed this lawsuit, seeking a partial refund of the fees they now characterized as "illegally excessive" in violation of RCW 82.02.020. They sought certification as a class action lawsuit for everyone who paid San Juan County for consideration of land use and building permits, modifications, or renewals during the preceding three years. Petitioners requested a declaratory judgment, payment to the putative class reaching back three years for any amount found to be an overcharge, and attorney fees. The trial court dismissed the suit, finding the Land Use Petition Act (LUPA) governed, and a failure to file suit within 21 days barred the action. Finding no reversible error, the Washington Supreme Court affirmed dismissal. View "Cmty. Treasures v. San Juan County" on Justia Law

Curtis and Karen Erickson appealed and the Cass County Joint Water Resource District cross-appealed after the district court ordered condemnation of the Ericksons' properties, determined the amount of just compensation, and awarded the Ericksons' attorney fees and costs. After a bench trial, each Each party presented evidence about the value of the properties, including testimony from appraisers. The district court found the Ericksons were entitled to just compensation for the properties in the amount of $48,200. The Ericksons moved for attorney fees and costs under N.D.C.C. 32-15-32. The District opposed the request, arguing the requested amount of attorney fees and costs was unreasonable. The court granted the Ericksons' motion and ordered the District to pay the Ericksons $114,346.47 in fees and costs. The Ericksons argued the district court erred in determining the amount of just compensation, contending the court failed to properly compensate them for the properties' "highest and best use." The District argued the district court misapplied the law by awarding the Ericksons the full amount they requested for attorney fees and costs. The North Dakota Supreme Court concluded the district court did not misinterpret or misapply the law and the court did not act in an arbitrary, unreasonable, or unconscionable manner when it decided to award attorney fees and costs. Therefore, the Court concluded the trial court did not abuse its discretion by awarding fees and costs. View "Cass County Joint Water Resource District v. Erickson" on Justia Law

Kelly Dickson and Donna DeFusco owned adjacent parcels of land near Big Lake. The property’s original 160 acres were homesteaded in 1958 by their father, Benjamin Cowart, who received a patent from the federal government in 1965. He later purchased two 40-acre tracts that bordered his acreage to the southeast. Dickson and DeFusco inherited the property upon their mother’s death in 2007. At issue in this case are two easements the superior court found to exist across Dickson and DeFusco’s property. The first involved the Historic Iditarod Trail that was first surveyed in the early 1900s. The second easement was for part of Homestead Road and was created in 1958 when a neighbor, Charles Sassara, Sr., used a D8 Caterpillar to improve access to his and other homesteads in the area. The owners appealed a decision in favor of the Alaska Department of Natural Resources (DNR), that recognized an RS 2477 right of way over their property for the Historic Iditarod Trail and a prescriptive easement for public use of a road. The owners argued the evidence did not support the court’s findings of the right of way and the easement; that the court made a number of procedural and evidentiary errors that collectively deprived them of procedural due process; and that the large attorney’s fees award in favor of the State was excessive in light of its likely deterrent effect and the State’s decision to vigorously litigate this case for its precedential effect. The Alaska Supreme Court concluded the superior court did not clearly err in its findings of fact, and affirmed its decision recognizing the RS 2477 right of way for the Historic Iditarod Trail and the prescriptive easement for the road. The Supreme Court found no abuse of discretion in the court’s procedural and evidentiary rulings. However, the Court concluded there may have been a compelling reason to vary the presumptive attorney’s fees award under Alaska Civil Rule 82(b)(3), and remanded for the superior court’s further consideration of this issue. View "Dickson v. Alaska, Dept. of Natural Resources" on Justia Law

In 2007, the Site, in Trainer Borough, was owned by SCT, and used for making corrosion inhibitors, fuel additives, and oil additives. SCT kept flammable, corrosive, and combustible chemicals. Pennsylvania’s Department of Environmental Protection (PADEP) determined that “there is a release or threat of release of hazardous substances or contaminants, which presents a substantial danger to human health or the environment. The federal EPA initiated removal actions. SCT could not afford the cleanup expenses, including electricity to power pollution control and security equipment, The power company was going to shut off the Site's electricity, so PADEP assumed responsibility for the bills. Delaware County forced a tax sale. Buyers purchased the Site for $20,000; the purchase agreement stated that the Site had ongoing environmental issues and remediation. Trainer Custom Chemical took title in October 2012. The EPA and PADEP completed their removal actions in December 2012. PADEP had incurred more than $818,000 in costs. The buyers had demolished many of the Site’s structures; reclaimed salvageable materials were sold for $875,000. In 2014, PADEP received reports indicating that hazards still existed at the Site; its buildings had asbestos-containing materials. PADEP sued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-28, and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA), to recover cleanup costs. The Third Circuit held that the Buyer is liable for environmental cleanup costs incurred at the Site both before and after the Buyer acquired it. View "Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical LLC" on Justia Law

From 1910 until 1986, Greenlease Holding Co. (“Greenlease”), a subsidiary of the Ampco-Pittsburgh Corporation (“Ampco”), owned a contaminated manufacturing site in Greenville, Pennsylvania. Trinity Industries, Inc. and its wholly-owned subsidiary, Trinity Industries Railcar Co. (collectively, “Trinity”), acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. An investigation by Pennsylvania into Trinity’s waste disposal activities resulted in a criminal prosecution and eventual plea-bargained consent decree which required, in relevant part, that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. This appeal arose out of the district court’s determination that, under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), Trinity was entitled to contribution from Greenlease for remediation costs. The parties filed cross-appeals challenging a number of the district court’s rulings, including its ultimate allocation of cleanup costs. The Third Circuit ultimately affirmed the district court on several pre-trial rulings on dispositive motions, vacated the cost allocation determination and remanded for further proceedings. View "Trinity Industries Inc v. Greenlease Holding Co." on Justia Law