Justia Zoning, Planning & Land Use Opinion Summaries

The Attards own an undeveloped 5-acre parcel in unincorporated Contra Costa County (Fish Ranch Road) on the north side of Highway 24, near the east portal of the Caldecott Tunnel, approximately one mile west of Orinda. The property is designated open space in the county’s general plan, its zoning allows the construction of one single family home. They also own two parcels constituting the 3-acre Old Tunnel Road property near the tunnel's east portal, on the opposite side of Highway 24. The chief barrier to the development of the properties was sewage treatment. In 2005, the Attards contracted with the state Department of Transportation, agreeing to reconstruct the tunnel’s sewage disposal system and pay for upkeep, in return for the right to connect the properties. The tunnel then had a single restroom, served by a septic system. Although they failed to obtain the necessary regulatory approvals, the county issued a permit for construction of an 8400-square-foot home. Before the county discovered its error and notified the Attards, they made substantial progress toward installing a foundation. The county revoked the permits. The court of appeal affirmed the rejection of their petition for mandamus, rejecting claims of vested rights and equitable estoppel; that the Attards were exempt from local regulatory authority because of sovereign immunity; and that they were denied due process by the evident bias of one Board member. View "Attard v. Board of Supervisors of Contra Costa County" on Justia Law

This appeal involved a dispute between two neighbors over the construction of a pergola on the shore of Lake Champlain in Swanton. The Environmental Division consolidated three related proceedings concerning this dispute and concluded that the Town of Swanton was equitably estopped from enforcing its zoning regulations and that the pergola, which did not comply with those regulations, could remain. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Langlois/Novicki Variance Denial" on Justia Law

In 2010, Omni, the landowner and developer, sought approval for construction of a shopping center on 11 acres of property zoned commercial, to consist of 10 retail buildings. Monterey County approved the project. An association of community members challenged the approval under the California Environmental Quality Act, Public Resources Code 21000 (CEQA). The trial court denied the petition as to the claimed CEQA violations but ordered an interlocutory remand to allow the county to clarify whether the project was consistent with the county’s general plan requirement that the project have a long-term, sustainable water supply. On remand, the Board of Supervisors clarified that the project “has a long-term sustainable water supply, both in quality and quantity to serve the development in accordance with the 2010 Monterey County General Plan Policies. The court entered judgment in favor of the county and Omni. The court of appeal affirmed, rejecting claims that the county violated the association’s right to procedural due process on interlocutory remand and violated CEQA because the water supply analysis was inadequate, the analysis of the project’s consistency with the general plan was inadequate, the environmental impact report’s traffic analysis was inadequate, and environmental review of Omni’s project was improperly segmented. View "Highway 68 Coalition v. County of Monterey" on Justia Law

About 99.5% of the Orion Project, 12.9 miles of pipeline looping that would transport an additional 135,000 dekatherms per day of natural gas through Pennsylvania, would run alongside existing pipelines. According to Riverkeeper, construction will lead to deforestation, destruction of wetland habitats, and other forms of environmental damage. Riverkeeper asserts that such damage can be avoided by building or upgrading a compressor station. The Army Corps of Engineers, which administers certain provisions of the Clean Water Act, 33 U.S.C. 1344(a), 1362(7) issued a Section 404 permit approving the project. The Third Circuit rejected Riverkeeper’s challenge. The Corps considered the compression alternative but rejected it for reasons supported by the record. While the compression alternative would disturb less land, its impact would be mostly permanent. The pipeline project would disturb more land, but its impact would be mostly temporary. In making a policy choice between those environmental tradeoffs, the agency’s discretion “was at its apex.” View "Delaware Riverkeeper Network v. United States Army Corps of Engineers" on Justia Law

Litigation under the Public Records Act (PRA) (Gov. Code, sec. 6250 et seq.) is one of the rare instances where a losing party may still be deemed a prevailing party entitled to an attorney fee award. Ponani Sukumar appeals an order denying his motion for prevailing party attorney fees against the City of San Diego (City). Sukumar owns a home in San Diego (the Property). In about 1992, Sukumar's neighbors began complaining to the City about Sukumar's use of the Property. These complaints mostly involved parking issues and noise. In 2006 the City ordered Sukumar to take "immediate action to correct" municipal code violations occurring on the Property that constituted "a public nuisance." However, the City decided to not pursue the matter absent additional neighbor complaints. In 2015, Sukumar's attorney delivered a request to the City for "production of documents and information" under the PRA. The request sought 54 separate categories of documents, all relating to any neighbor's complaints about Sukumar. Twenty-four days after the request, the City wrote to Sukumar's attorney, stating that some potentially responsive documents were exempt from disclosure, and responsive, nonexempt records would be made available for Sukumar's review. Sukumar's attorney remained unconvinced that the City had produced all documents responsive to its request, and sought a writ of mandate or used other mechanisms to compel the documents' production. Though every time the City offered to certify it produced "everything," it would release additional documents. The trial court ultimately denied Sukumar's writ petition, finding that by 2016, the City had "in some fashion" produced all responsive documents. After stating Sukumar's writ petition was "moot" because all responsive documents had now been produced, the court stated, "Now, you might argue that you're the prevailing party, because the City didn't comply until after the lawsuit was filed. That's another issue." Asserting the litigation "motivated productions of a substantial amount of responsive public documents, even after the City represented to this [c]ourt there was nothing left to produce," Sukumar sought $93,695 in fees (plus $5,390 incurred in preparing the fee motion). Sukumar appealed the order denying his motion for prevailing party attorney fees against the City. The Court of Appeal reversed because the undisputed evidence established the City produced, among other things, five photographs of Sukumar's property and 146 pages of e-mails directly as a result of court-ordered depositions in this litigation. The Court remanded for the trial court to determine the amount of attorney fees to which Sukumar is entitled. View "Sukumar v. City of San Diego" on Justia Law

The Madison County Board of Supervisors (the Board) found Arlin George Hatfield, III (who raised “chickens, guinea fowl, and ducks”) violated a Madison County Zoning Ordinance (the Ordinance) section, which did not expressly permit raising and keeping fowl in residential neighborhoods. The Board’s decision was consistent with an earlier interpretation and application of the Ordinance section. Hatfield was sued in October 2013 a little over a year after purchasing a lot in the Deer Haven Subdivision, by the Deer Haven Owners Association (DHOA). The claim stemmed from his supposed violation of subdivision covenants that prohibited keeping or raising fowl4 and constructing structures—such as pens and coops—without DHOA approval. Hatfield alleges that while this lawsuit was pending, DHOA contacted and involved Scott Weeks, an administrator with the Madison County Planning and Zoning Department. Weeks inspected Hatfield’s property on February 18, 2015, and found Hatfield was violating the “R-1 Residential District” section of the Madison County Zoning Ordinance. Hatfield filed a Notice of Appeal and Intent to File Bill of Exceptions, arguing the Board’s decision was arbitrary and capricious, not supported by substantial evidence, and was based on an unconstitutionally vague Ordinance section. After review, based on the Board’s prior treatment of a similar matter and its construction of the applicable zoning law, the Mississippi Supreme Court found the Board’s decision was neither arbitrary nor capricious. The Court also found that, in light of the entire Ordinance, Hatfield had sufficient notice that keeping or raising fowl on residential property was prohibited. View "Hatfield v. Board of Supervisors of Madison County" on Justia Law

Before appellants purchased Martins Beach, the public was permitted to access the coast by driving down Martins Beach Road and parking along the coast, usually upon payment of a fee. Because it is sheltered by high cliffs, Martins Beach lacks lateral land access. In 2008, appellants purchased Martins Beach and adjacent land including Martins Beach Road. A year or two later, appellants closed the only public access to the coast at that site. Surfrider, a non-profit organization dedicated to the preservation of access for recreation, brought suit. The trial court held the California Coastal Act (Pub. Res. Code, 30000–30900) applied and the appellants were required to apply for a coastal development permit (CDP) before closing public access. The court issued an injunction that requires appellants to allow public coastal access at the same level that existed when appellants bought the Martins Beach property. The court of appeal affirmed. Appellants‘ conduct is “development” requiring a CDP under section 30106 of the Coastal Act. Appellants‘ constitutional challenge to the Coastal Act‘s permitting requirement under the state and federal takings clauses is not ripe, The injunction is not a per se taking. The court affirmed an award of attorney fees to Surfrider. View "Surfrider Foundation v. Martins Beach 1, LLC" on Justia Law

To obtain an area variance, an applicant must show that strictly applying a zoning ordinance will cause “peculiar and exceptional practical difficulties” that deprive a property of privileges enjoyed by other similarly zoned properties.This dispute arose from the City of Phoenix Board of Adjustment’s grant of a variance on a parcel of land in Phoenix. The superior court upheld the variance, finding that the variance was an area variance and not a use variance, that the Board was authorized to consider area variances, and that sufficient evidence supported the Board’s decision. The court of appeals reversed, concluding that the Board did not act within its authority in granting the variance. The Supreme Court vacated the court of appeals’ opinion and affirmed the judgment of the superior court, holding (1) the Board acted within its discretion in finding that special circumstances applied to the property; (2) the property owner did not create the special circumstances; (3) the variance required was an area variance that was necessary for the preservation and enjoyment of substantial property rights; and (4) the variance would not be materially detrimental to the surrounding area. View "Pawn 1st, LLC v. City of Phoenix" on Justia Law

This case concerned the Douglas County Planning and Zoning Administrator’s grant of a building permit for a hog confinement unit. Landowners applied for a writ of mandamus compelling the Administrator and the Douglas County Planning and Zoning Commission to comply with the county’s zoning ordinance revoking the permit. After a trial, the circuit court denied Landowners’ request, concluding (1) the hog barn did not fall under any of the permitted uses of land for which a building permit could be granted; but (2) a writ of mandamus could not be used to undo an already completed act, and principles of equity would not entitle Landowners to relief. The Supreme Court ultimately affirmed the circuit court’s decision denying Landowners a writ of mandamus, holding (1) the circuit court erred in determining that the facility was not a permitted use under the ordinances; but (2) because construction of the facility had already been completed at the time of trial, issuing a writ a mandamus to revoke the permit now would be ineffective. View "Hoffman v. Van Wyk" on Justia Law

The Supreme Judicial Court vacated the judgment of the superior court affirming the Cape Elizabeth Code Enforcement Officer’s (CEO) issuance of a building permit, holding that the CEO’s decision granting the permit lacked sufficient factual findings to permit meaningful review.The owner of property abutting the property at issue appealed the CEO’s grant of the building permit to the Town Zoning Board of Appeals (ZBA). The ZBA affirmed the CEO’s decision. The superior court affirmed. The Supreme Judicial Court vacated the superior court’s judgment and remanded the matter, holding that the COE’s grant of the building permit was the operative decision and that decision lacked sufficient factual findings to permit meaningful appellate review. View "Appletree Cottage, LLC v. Town of Cape Elizabeth" on Justia Law