Justia Zoning, Planning & Land Use Opinion Summaries

Coyote Lake Ranch, about 40 square miles, in the Texas Panhandle, is used for agriculture, raising cattle, and hunting. It is primarily grass-covered sand dunes, with some is irrigated cropland. Water comes from the Ogallala Aquifer, the principal source of water for the Texas High Plains, including the City of Lubbock, about 90 miles southeast of the Ranch. In 1953, during “‘one of the most devastating droughts in 600 years,’” the Ranch deeded its groundwater to the city, reserving water for domestic use, ranching operations, oil and gas production, and agricultural irrigation, by one or two wells in each of 16 specified areas. In 2012, the city announced plans to increase water-extraction efforts on the Ranch, drilling as many as 20 test wells in the middle of the Ranch, followed by 60 wells across the Ranch. The Ranch objected that the proposed drilling would increase erosion and injure the surface unnecessarily. The court of appeal dissolved a temporary injunction entered in favor of the Ranch. The Supreme Court of Texas remanded, agreeing that an injunction “so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights” was an abuse of discretion. The court cited the accommodation doctrine as applicable to a interests in groundwater: a lessee has an implied right to use the land as necessary for production and removal of the resource, with due regard for the landowner’s rights. View "Coyote Lake Ranch, LLC v. City of Lubbock" on Justia Law

Applicants Cynthia and Charles Burns wanted to make modifications to a two-unit residential building they owned in Burlington. A group of nineteen Burlington residents (neighbors) appealed a Superior Court, Environmental Division decision declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. 4472(d) or to consider whether a permit was required for applicants’ other modifications. On appeal to the Vermont Supreme Court, neighbors argued: (1) that their challenge was not precluded under section 4472(d) because the prior decision had not been rendered by the Burlington Zoning Administrator as the statute requires; (2) that preventing an appeal without affording notice and opportunity to be heard violated their due process rights; and (3) that they were entitled to a determination by the Environmental Division of whether applicants’ other modifications violated the zoning ordinance because they were done without a permit. The Supreme Court agreed, reversed and remanded for further proceedings. View "In re Burns Two-Unit Residential Building (Long, et al. Appellants)" on Justia Law

Plaintiffs, Paul and Sara Lynn, appealed a Superior Court order granting summary judgment to defendant Wentworth By The Sea Master Association (association), and denying summary judgment to plaintiffs. The parties disputed the validity of an easement on the plaintiffs’ property that provided members of the association beach access. Because the Supreme Court concluded that an easement was validly created, it affirmed. View "Lynn v. Wentworth By The Sea Master Association" on Justia Law

The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law

The Maryland Critical Area law establishes a cooperative program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic coastal bays has special protection against development that might cause environmental damage. Although the law allows a property owner to seek a variance, it places the burden of proof on the applicant to demonstrate that the applicant would suffer an “unwarranted hardship” without the variance and that granting the variance will not have an adverse environmental impact. Schwalbach sought a variance from a Worcester County ordinance that limits piers to 100 feet in length, in order to access navigable water from his waterfront property in a community where piers and boating are common. Schwalbach obtained necessary federal, state, and local environmental agency approvals. The County Board of Zoning Appeals granted the variance. The Circuit Court, the Court of Special Appeals, and the Maryland Court of Appeals upheld the approval.Schwalbach was not required to show that he would be denied all reasonable and significant use of his land without the variance, but rather that he would be denied a reasonable and significant use throughout the entire property. There was sufficient evidence to conclude that Schwalbach satisfied that standard and the standard that there be no adverse environmental impact from granting the variance. View "Assateague Coastal Trust v. Schwalbach" on Justia Law

In June 2010, the Denver City Council passed Ordinance 333, replacing the old zoning code but including an exception that allowed any person seeking to “erect or alter structures” to apply for a permit under the old zoning code until December 30, 2010. On December 30, 2010, Open Door Ministries (Open Door) applied for a use permit under the old code to change the use of 740 Clarkson Street to provide transitional housing for people in need. The Denver Zoning Authority (“the DZA”) issued the rooming and boarding permit. Open Door then purchased the property for $700,000; made improvements to the property; and began providing room and board to people at risk of becoming homeless. Several months later, Jesse Lipschuetz, who owned a home adjacent to 740 Clarkson, sought administrative review of the DZA’s decision to issue the permit. He argued that Open Door did not meet the exception under Ordinance 333 because the permit was for a change of use, not to “erect or alter” a structure. The DZA defended its decision to issue the permit, explaining that it had consistently interpreted the exception to allow parties to seek any kind of permit under the old zoning code until December30, 2010. The trial court concluded that the City should not have issued the permit, but stayed its order to revoke the permit until Open Door’s cross-claims were resolved. Several months later, the trial court granted summary judgment in favor of Open Door on the cross-claims. On appeal, Lipschuetz argued that Open Door’s cross-claims against the City were barred by the Colorado Governmental Immunity Act because they “could lie in tort.” Because Open Door did not notify the City prior to filing its cross-claims, Lipschuetz argued that the trial court lacked subject matter jurisdiction over the cross-claims. The court of appeals agreed. The Supreme Court reversed, finding that the court of appeals failed to consider whether, at the time of filing, Open Door had suffered an injury that would subject its cross-claims to the Act. The Court concluded that the Act did not apply to Open Door’s request for prospective relief to prevent future injury. View "Open Door Ministries v. Lipschuetz" on Justia Law

Plaintiff-appellant People for Proper Planning (PFPP) appealed the denial of its petition for peremptory writ of mandate and complaint for declaratory and injunctive relief filed against defendants-respondents City of Palm Springs and Palm Springs City Council (collectively referred to as City). In its petition, PFPP challenged the City’s adoption of Resolution No. 23415, which approved an Amendment to the City’s General Plan removing the minimum density requirements for each residential development. The trial court denied PFPP’s challenge, contending that the Amendment: (1) was not exempt from the requirements of the California Environmental Quality Act (CEQA) because it was not a minor land use alteration; (2) was inconsistent with the General Plan such that it now makes the General Plan internally inconsistent; and (3) violated statutory requirements that the City accommodate its fair share of regional housing needs for all income levels, including low and very low income levels. The Court of Appeal determined the Amendment was not exempted from CEQA requirements, and thus, reversed the judgment. In light of this determination, the Court did not address the other issues raised by PFPP. View "People for Proper Planning v. City of Palm Springs" on Justia Law

The Dewey County Commission (the Commission) granted an application to erect a power distribution line in a section line right-of-way bordering Margaret Upell’s property. Upell filed a notice of appeal of the Commission’s decision with the circuit court. Upell served her notice of appeal by mail on counsel for Coop and on the Dewey County State’s Attorney. But she did not serve a member of the board of county commissioners as required by SDCL 7-8-29. She appealed to the circuit court which dismissed her appeal for lack of jurisdiction. She then appealed to the South Dakota Supreme Court. Finding no reversible error, the Supreme Court affirmed the dismissal. View "Upell v. Dewey Cty. Comm'n" on Justia Law

Because of zoning by Upper Arlington, a suburb of Columbus, Ohio, Tree of Life Christian Schools could not use its otherwise-unused land and building to operate a religious school. The government denied a rezoning application because such a use would not accord with provisions of the government’s Master Plan, which call for maintaining commercial use zoning to maximize tax revenue. TOL filed suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc– 2000cc-5, alleging that the government illegally failed to treat TOL Christian Schools on equal terms with nonreligious assemblies or institutions. The district court granted the government summary judgment. The Sixth Circuit reversed and remanded for resolution of the factual issue: whether the government treated nonreligious assemblies or institutions that would fail to maximize income-tax revenue in the same way it has treated the proposed religious school. View "Tree of Life Christian Schools v. City of Upper Arlington" on Justia Law

Plaintiff and two other individuals, seeking to operate a gun shop in the County, challenged the County's ordinance which requires that the proposed location of the business is not within 500 feet of a residentially zoned district. The district court subsequently granted the County's motion to dismiss for failure to state claim. The court concluded that, because plaintiff's equal protection challenge is no more than a Second Amendment claim dressed in equal protection clothing, it is subsumed by, and coextensive with the former, and therefore is not cognizable under the Equal Protection Clause. Nor did plaintiff adequately plead a class-of-one Equal Protection claim where plaintiff acknowledges that gun stores are materially different from other retail businesses and therefore is not a similarly situated business. The court concluded that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms, and that the Ordinance's potential interference was a proper basis for plaintiff's Second Amendment challenge. Furthermore, the Ordinance burdens conduct protected by the Second Amendment and is subject to heightened scrutiny. Under this standard, the court concluded that the County failed to carry its burden of demonstrating that there was a reasonable fit between the challenged regulation and its asserted objective. In this case, the County failed to satisfy its burden because it never justified the assertion that gun stores act as magnets for crime. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Teixeira v. County of Alameda" on Justia Law