Justia Zoning, Planning & Land Use Opinion Summaries

The 7,517-square-foot lot, on the south side of Telegraph Hill bordering the Filbert Street steps, was unimproved except for a small uninhabitable 1906 cottage. Four other buildings were demolished in 1997. The developers intend to restore the existing 1.000-square-foot cottage and build a three-story over basement building with three units ranging from 3,700-4,200 square feet apiece. A new curb cut along Telegraph Boulevard will provide access to a basement with three off-street parking spaces. The front of the building, bordering the Filbert Street steps, is designed to appear as three separate single-family homes, each below the 40-foot height limit as they step down the hill. The San Francisco Planning Department determined the project was statutorily exempt from the California Environmental Quality Act, Public Resources Code, 21000 (CEQA), because it fell within classes of projects that were determined not to have significant effects on the environment: restoration or rehabilitation of deteriorated structures; a residential structure totaling no more than four dwelling units. The Planning Commission approved a conditional use authorization. The Board of Supervisors, superior court, and court of appeal upheld the approvals. No CEQA review was necessary because the project was categorically exempt from review and no unusual circumstances exist to override the exemptions on the basis the project will have a significant effect on the environment. View "Protect Telegraph Hill v. City & County of San Francisco" on Justia Law

After plaintiff was arrested for failing to confine his leafleting to an area designated for protest activities, as set forth in a protocol formulated by Baltimore's legal department in 2004, he filed suit challenging the constitutionality of the protocol. The Fourth Circuit addressed a challenge to the same protocol previously, Ross v. Early, 746 F.3d 546 (4th Cir. 2014), where the court affirmed the district court's decision to uphold the protocol. In this case, the district court dismissed the complaint because the court had already considered the constitutional claim in Ross. The court vacated, holding that, in Ross, the parties entered into a stipulation that dictated the level of constitutional scrutiny, but the parties to the instant case did not. Furthermore, the district court in the instant case did not consider an intervening relevant Supreme Court decision, McCullen v. Coakley, 134 S. Ct. 2518 (2014), and did not have the benefit of another, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Accordingly, the court remanded for further proceedings. View "Lucero v. Early" on Justia Law

The Fourth Circuit affirmed the district court's dismissal of a suit challenging Rockville's zoning ordinance that prohibited the construction of self-storage facilities within 250 feet of property on which a public school is located. Plaintiffs argued that the enactment amounted to a denial of their due process and equal protection rights under the Fourteenth Amendment. The court held that Siena did not have a constitutionally protected property interest in using its property to develop a storage facility. The court explained that the very nature of Siena's conditional site plan approval defeated any claim that Siena had a nondiscretionary entitlement to a building permit. Because Siena never satisfied the conditions of obtaining a requisite site plan approval, it was not eligible for a building permit. Even if Siena had a protected property interest here, the enactment of the zoning text amendment would still fall short of a substantive due process violation. In this case, the enactment represented nothing more than the ordinary exercise of a state's residual police power in land use and zoning, in which the state has long maintained a primary and sovereign interest. The court rejected Siena's remaining claims, including the Fourteenth Amendment equal protection claim, and affirmed the judgment in all respects. View "Siena Corp. v. Mayor and City Council of Rockville" on Justia Law

Vallejo’s zoning code does not recognize medical marijuana dispensaries as a permitted land use. An unpermitted use is “a public nuisance.” Vallejo recently adopted Ordinance No. 1715 granting limited immunity to medical marijuana dispensaries that meet various requirements, including the past payment of local business taxes. NCORP4, a nonprofit corporation, operates a Vallejo medical marijuana dispensary. Vallejo denied NCORP4’s application for limited immunity for failure to pay taxes, among other reasons, but the dispensary continues to operate. The city sought to enjoin the dispensary as a public nuisance. The trial court denied the city a preliminary injunction, concluding that the ordinance improperly conditioned immunity upon past payment of business taxes. The court of appeal reversed. State law permitting medicinal marijuana use and distribution does not preempt “the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions.” Local governments may rationally limit medical marijuana dispensaries to those already in operation and compliant with prior law as past compliance shows a willingness to follow the law, which suggests future lawful behavior. View "City of Vallejo v. NCORP4, Inc." on Justia Law

At issue was whether municipal parkland may be protected by Article 97 of the Amendments to the Massachusetts Constitution where the land was not taken by eminent domain and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes. The Supreme Court answered in the affirmative, provided the land has been dedicated as a public park. Further, a municipality dedicates land as a public park where there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park. Given this conclusion, the park in this case was dedicated by the city as a public park such that the transfer of its use from a park to a school would require legislative approval under the prior public use doctrine and, thus, under article 97. View "Smith v. City of Westfield" on Justia Law

The State Water Resources Control Board (Wat. Code, 174(a)) has permitting authority, limited to surface water and to “subterranean streams flowing through known and definite channels.” It does not have authority over “percolating groundwater” that is not part of a subterranean stream, which is regulated by local agencies. It has authority to prevent the unreasonable or wasteful use of water regardless of its source. Living Rivers unsuccessfully sought a writ of mandate to compel the Board to rescind its approval of a policy designed to maintain instream flows in coastal streams north of San Francisco. Living Rivers alleged several violations of the California Environmental Quality Act (CEQA; Public Res. Code, 21000) relating to the indirect environmental effects of surface water users switching to groundwater pumping as a result of the policy. The court of appeal affirmed, rejecting arguments that a revised supplemental environmental declaration’s (RSED) conclusion that increased groundwater pumping was uncertain or unlikely was in conflict with the Board’s finding that groundwater pumping could have significant effects on the environment; the RSED did not adequately describe or discuss the adoption of the Subterranean Stream Delineations as a mitigation measure; and the RSED’s stated reasons for finding the Subterranean Stream Delineations infeasible were erroneous as a matter of law. View "Living Rivers Council v. State Water Resources Control Board" on Justia Law

The Supreme Court affirmed the decision of the Teton County Board of County Commissioners granting Four Shadows, LLC a basic use permit (BUP) to use its property in Teton Village for temporary construction storage/staging. The court held (1) Appellants had an interest that was greater than the general public’s, giving them standing to maintain their appeal as persons aggrieved and adversely affected in fact by the Board’s decision to issue the permit; and (2) the Board’s decision to grant Four Shadows a BUP for temporary use of the property for construction storage/staging was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. View "Tayback v. Teton County Board of County Commissioners" on Justia Law

Plaintiffs and appellants Luz Solar Partners Ltd., III; Luz Solar Partners Ltd., IV; Luz Solar Partners Ltd., V; Luz Solar Partners Ltd., VI; Luz Solar Partners Ltd., VII; Luz Solar Partners Ltd., VIII and Harper Lake Company VIII; and Luz Solar Partners Ltd., IX and HLC IX (collectively “Luz Partners”) challenged the assessment of real property improved with solar energy generating systems (SEGS units) for tax years 2011-2012 and 2012-2013. They contended that defendants-respondents San Bernardino County (County) and the Assessment Appeals Board of San Bernardino County (Appeals Board) erroneously relied on the State of California Board of Equalization’s (Board) incorrect interpretation of the applicable statutes governing the method of assessing the value of the property. Finding that the Board correctly interpreted the applicable law in setting forth the method of assessing the value of the solar properties, the Court of Appeal affirmed. View "Luz Solar Partners Ltd. v. San Bernardino County" on Justia Law

At issue before the Vermont Supreme Court in this appeal was whether land dedicated to a public use could be condemned for another public use when the new use did not materially interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, appealed the Public Service Board’s order authorizing Vermont Gas Systems, Inc. (VGS) to condemn an easement through the park for the purpose of installing a natural gas pipeline. They argued the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. section 110(a)(2). The Supreme Court affirmed the Board’s decision, but remanded for a minor correction to the order relating to the terms of the easement. View "In re Vermont Gas Systems, Inc." on Justia Law

The Supreme Court vacated the decision of the district court reversing the decision of the Moab City Council denying Mary and Jeramey McElhaney’s application for a conditional use permit to operate a bed and breakfast in their residential neighborhood, holding that the district court erred by refusing to send the matter back to the Council for the entry of more detailed findings of fact and conclusions of law. After determining that the Council had not generated findings sufficient to support its decision, the district court overturned the Council’s decision to deny the McElhaneys’ application. The Supreme Court remanded the case for further proceedings, holding (1) on an appeal of a district court’s review of an administrative decision, the court reviews the district court’s decision and not the Council’s; and (2) the district court erred in overturning the Council’s decision without remanding to permit the Council to craft findings of fact and conclusions of law capable of appellate review. View "McElhaney v. City of Moab" on Justia Law