Justia Zoning, Planning & Land Use Opinion Summaries

Plaintiffs Frank and Martha Buck, challenged the Court of Civil Appeals’ decision to affirm the trial court's judgment in favor of defendants CH Highland, LLC (“Highland”) and the City of Birmingham (“City”) in their challenge to a City rezoning ordinance. The Bucks owned property in the City. Highland, a real-estate-development company, wanted to build a multistory apartment complex ("the project") on property located adjacent to the Bucks' property. As planned, the project did not conform with the then existing zoning restrictions for the area in which the subject property was located. Thus, Highland submitted a rezoning application to the Zoning Advisory Committee of the Birmingham Planning Commission. Highland requested that the subject property be rezoned from a "B-2 general business district" to a "B-3 community business district" so that it could construct the project. The Alabama Supreme Court found that the proposed rezoning ordinance that was published merely indicated to the public that there would be a zoning change from a B-2 district to a B-3 district. Ordinance 1949-G did not create a B-3 district; instead, it created a district of a substantially smaller range of uses than what was otherwise disclosed to the public in the Public Notice of the rezoning change. “Even if this Court were to reject the long-standing rule that, to invalidate an ordinance, it is unnecessary for the public to be prejudiced by the City's failure to publish the ordinance, we cannot presume that no prejudice occurred in this case.” The Court reversed the Court of Civil Appeals, and the case was remanded for further proceedings. View "Ex parte Buck." on Justia Law

The Bureau of Land Management (“BLM”) closed an area of Recapture Canyon to all-terrain vehicles (“ATVs”) in 2007, to prevent soil damage and the spoliation of archeological resources near the trail. Frustrated with what had been billed as a temporary closure, in 2014, certain individuals planned an ATV ride to protest the BLM’s closure order. The ride took place in May 2014. Defendant-appellant Phil Lyman, a County Commissioner for San Juan County, was a major promoter of the ride. He was charged along with Defendant-appellant Monte Wells in a misdemeanor criminal information with operating ATVs on lands closed to such use by the BLM and conspiring to do so. A jury found both men guilty of the charged offenses, for which they were sentenced them to terms of probation and brief terms of imprisonment. They were also ordered to pay restitution for the costs of assessing and repairing the damage that the protest ride caused to the land. On appeal, defendants brought a variety of challenges to their convictions and the restitution order: asking ask for a new trial because they claimed a reasonable observer allegedly would have questioned the district court judge’s impartiality (the judge did ultimately recuse before their sentencing). Furthermore, they appealed the denial of their motions to dismiss; they made a “Brady” claim stemming from the government’s failure to produce a map showing a possible public right-of-way through Recapture Canyon (which allegedly would have called into question whether the BLM’s 2007 closure order was lawful); they challenged the district court’s restitution order and the amount they were ordered to pay; and, lastly, Lyman argued he was denied constitutionally adequate counsel. The Tenth Circuit found none of defendants’ arguments were grounds for reversal of the district court’s judgment, and affirmed. View "United States v. Wells" on Justia Law

In May 2008, the Town of Granville established an Ancient Roads Committee and Process for identifying “ancient roads,” all roads that were at one time established as public highways and had not been officially discontinued. In August 2009, the Committee recommended that certain roads, including Sabin Homestead Road, be added to the Town Highway Map. Sabin Homestead Road crosses defendant Joseph Loprete’s land for about 100 feet. In December 2009, after notice to defendant and several public hearings, the selectboard adopted the Committee’s revised recommendation to add Sabin Homestead Road back to the Town Highway Map. The road appeared on the Vermont Agency of Transportation’s official Town Highway Map. In late 2012, defendant blocked Sabin Homestead Road by putting a large storage container in the right-of-way. He refused to move the container, even after the selectboard asked him to do so. Plaintiffs then filed a declaratory judgment action asking the court to declare Sabin Homestead Road an existing town highway and public road that was properly established in 1850 following the statutory procedures required at that time. The Town moved for summary judgment, arguing that the undisputed facts established that in 1850 the selectboard took official action to lay out the road and that they created and recorded a survey. The trial court denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The parties subsequently agreed that the court could decide this question based on undisputed facts and they filed cross-motions for summary judgment. The parties agreed that no certificate of opening could be found. Defendant argued that this disposed of the case. However, the court concluded that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town. Defendant argued on appeal to the Vermont Supreme Court that the Town was required, and failed, to produce sufficient evidence that the Town certified the road as open for public travel in 1850. After review, the Supreme Court concluded the Town met its burden of proof, and it was entitled to summary judgment in its favor. View "Town of Granville v. Loprete" on Justia Law

An undeveloped greenbelt buffer runs between Bill Yankee’s property and the back of Chris and Ann Gilbertos’. The two properties are in different subdivisions and therefore subject to different covenants: Yankee’s property is in the Nunatak Terrace Subdivision whereas the Gilbertos’ is in the Montana Creek Subdivision. Yankee complained about the fence to the Director of Juneau’s Community Development Department, but the Director responded that the fence was allowed, citing longstanding policy. Yankee then appealed to the Planning Commission, which affirmed the Director’s decision. Yankee next appealed to the Juneau Assembly, which rejected his appeal for lack of standing. Yankee appealed this decision to the superior court, which affirmed the Assembly’s reliance on standing as grounds to reject the appeal. Yankee then appealed to the Alaska Supreme Court, which concluded the Director’s decision was an appropriate exercise of his enforcement discretion, not ordinarily subject to judicial review. On that alternative ground the Supreme Court affirmed the superior court’s dismissal of the appeal. View "Yankee v. City & Borough of Juneau" on Justia Law

Defendants-respondents the City of Davis (City) and the City Council of the City of Davis (City Council) approved a conditional use permit authorizing the use of a single family home in a residential zoning district as professional office space for three therapists. Petitioner-appellant and next door neighbor Michael Harrington, filed a petition for an administrative writ of mandate asking the trial court to set aside the conditional use permit. The trial court denied the petition. Harrington appealed, arguing: (1) the conditional use permit violated an ordinance prohibiting parking in the front yard setback; (2) the issuance of the conditional use permit resulted in a change in occupancy triggering accessible parking requirements under the California Building Standards Code (Cal. Code Regs., tit. 24, pt. 2); (3) the conditional use permit contemplated alterations triggering the accessible parking requirements; (4) the City Council failed to make sufficient findings to support a conclusion that compliance with accessible parking requirements would be technically infeasible, and the findings are not supported by substantial evidence; and (5) the City Council failed to make sufficient findings to support a conclusion that the permitted use is consistent with the zoning designation, and the findings are not supported by substantial evidence. After review, the Court of Appeal concluded: (1) the conditional use permit did not require parking in the front yard setback; (2) the City’s reasonable construction of the Building Code is entitled to deference, and its determination that the issuance of the conditional use permit did not result in a change in occupancy is supported by substantial evidence; (3) Harrington forfeited the argument that the conditional use permit contemplated alterations within the meaning of the Building Code; (4) technical infeasibility findings were not necessary, as the City Council did not rely on that theory; and (5) the City Council’s consistency findings were legally sufficient and supported by substantial evidence. View "Harrington v. City of Davis" on Justia Law

In 2001, Michael Durkin, through two limited liability companies, purchased two lots directly adjacent to the McClellan Palomar Airport (Airport) in the City of Carlsbad (City). His development plans for the two lots were initially successful despite determinations by the San Diego County Regional Airport Authority (Authority) that the proposed projects were not compatible with the Airport. Overriding the Authority's objections, the City issued a planned industrial permit and Durkin completed the construction of a commercial building on one of the lots in 2005. He also obtained a permit from the City for construction of a second building on the other lot. Both permits included provisions in which Durkin agreed to hold the City harmless for any liability arising out of approval of the projects. Durkin's permit on the second lot expired in 2012 without the commencement of any construction. By the time Durkin sought to restart the permitting process with the City, the Authority had adopted an Airport Land Use Compatibility Plan (ALUCP) that designated Durkin's properties as being within a Safety Zone that carried specific limiting recommendations for compatible land uses. Despite having approved Durkin's previous permit application, the City now refused to override the recommendations in the ALUCP. Durkin filed an inverse condemnation action against the Authority and San Diego County, arguing the value of his property was depressed by the Authority’s adoption of the ALUCP and that decrease in value constituted a governmental taking. The Court of Appeal concluded the trial court properly entered summary judgment in favor of the County and the Authority on the ground that undisputed evidence shows there was no taking by these defendants. View "Dryden Oaks v. San Diego County Regional Airport Authority" on Justia Law

The Judicial Council of California (Government Code 70321) prepared an environmental impact report (EIR, California Environmental Quality Act (Pub. Resources Code, 21000)) in connection with the consolidation of El Dorado County courthouse operations from two buildings, one of which is a historic building in downtown Placerville, into a single new building on the city’s outskirts, less than two miles away. Although the draft EIR addressed the possible economic impact of moving judicial activities from the downtown courthouse, it concluded the impact was not likely to be severe enough to cause urban decay in downtown Placerville. The League contended this conclusion was not supported by substantial evidence, given the importance of the courthouse to downtown commerce. The trial court and court of appeal upheld certification of the EIR. The court noted that the new construction will not result in a competitor to siphon business from downtown, but will leave behind a building that can be filled with other activities producing a level of commerce similar to that removed by the relocation, thereby mitigating the impact of the relocation. There was substantial evidence to support the draft EIR’s conclusion that urban decay is not a reasonably foreseeable consequence of the project. View "Placerville Historic Preservation League v. Judicial Council of California" on Justia Law

In May 2007, the Medical Center Hospital Authority (“Hospital Authority”) filed an action against the Columbus Board of Tax Assessors and related parties (together, “the Tax Board”) in which it sought a declaration that its leasehold interest in a building located on real property owned by a private entity constituted public property exempt from ad valorem taxation under OCGA 48-5-41 (a) (1). The superior court granted summary judgment to the Hospital Authority, finding that the Hospital Authority’s leasehold interest qualified as “public property,” and was thus exempt from ad valorem property taxation. The Tax Board appealed this decision to the Court of Appeals, which affirmed the trial court’s grant of summary judgment. The Georgia Supreme Court granted certiorari to decide whether the Court of Appeals erred in determining that two prior bond validation orders conclusively determined, for purposes of OCGA 48-5-41 (a) (1) (A), that the property at issue was “public property” exempt from ad valorem taxation. The Court held that these orders did not conclusively establish that the Hospital Authority’s leasehold interest was “public property” exempt from ad valorem taxes and therefore reversed the Court of Appeals and remanded this case for further proceedings. View "Columbus Board of Tax Assessors v. Medical Center Hospital Authority" on Justia Law

This case arose from “a long-running battle” that appellant Richard Shelley waged against the Town of Tyrone’s zoning ordinances. Because Shelley failed to exhaust his administrative remedies before seeking relief in the trial court, his as-applied challenges to the zoning ordinances were not ripe for judicial review. The Georgia Supreme Court therefore affirmed the superior court’s order granting Tyrone partial summary judgment on those claims. And because the town enacted a new zoning ordinance, Shelley’s facial challenges to the previous ordinances were moot. The Supreme Court therefore vacated the superior court’s order addressing the merits of those claims and remanded the case with direction to dismiss those claims unless Shelley properly amended his complaint to challenge the ordinance now in effect. View "Shelly v. Town of Tyrone" on Justia Law

Kammerer Real Estate Holdings, LLC owned a lot on which it wanted to construct an automotive service facility. Kammerer applied for a site development permit. The lot was subject to a zoning condition under the Forsyth County Unified Development Code that certain “open space” on the lot remain undeveloped. The Director of the Forsyth County Department of Planning and Community Development concluded that the proposed construction would not comply with this condition, and so, he refused to issue a site development permit. Kammerer then asked the Forsyth County Board of Commissioners to amend the zoning condition, but the Board declined to do so. At that point, Kammerer filed this lawsuit against the County, the Board, and the Director, alleging that the Director had misconstrued the “open space” condition, and if it actually meant what the Director said it meant, it was unconstitutional in several respects. The defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion in part and denied it in part. Kammerer appealed the dismissal of certain claims, and the defendants cross-appealed the refusal of the trial court to dismiss other claims. The Georgia Supreme Court determined the trial court properly dismissed a claim for attorney fees, but reversed in all other respects, finding the trial court misinterpreted the controlling caselaw that governed this case, and remanded for further proceedings. View "Kammerer Real Estate Holdings, LLC v. Forsyth County Bod. of Comm'rs" on Justia Law