Justia Zoning, Planning & Land Use Opinion Summaries

Senske Rentals, LLC, appeals a district court’s order affirming the City of Grand Forks Special Assessment Commission’s decision to specially assess property for street improvements. Senske argues the Special Assessment Commission acted in an arbitrary, capricious, and legally unreasonable manner by failing to comply with the requirements of N.D.C.C. § 40-23-07 to determine the assessment to its properties. Finding Senske has not met its burden to show the assessments were invalid or that the Commission failed to comply with the statutory requirements under N.D.C.C. § 40-23-07, the North Dakota Supreme Court affirmed the district court. View "Senske Rentals, et al. v. City of Grand Forks" on Justia Law

The United States Forest Service, together with the Montana Department of Natural Resources and Conservation, managed the rapidly changing fire conditions and actively communicated with the public about the Lolo Peak Fire. After the fire, various affected landowners sued the federal government. They claim that the Forest Service is liable under the Federal Tort Claims Act (“FTCA”) for failing to comply with its duty to consult with them about fire-suppression activities on and near their properties. Specifically, they argued that the Forest Service was required to consult with landowners through individualized—rather than public—communication channels. The district court granted summary judgment for the Forest Service, holding that it lacked subject matter jurisdiction because the property owners’ claims were barred by the discretionary function exception.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the United States. The panel applied the requisite two-step test to determine whether the discretionary function exception applied. First, the panel examined whether there was a federal statute, regulation, or policy that prescribed the Forest Service’s course of action regarding the agency’s communications with the landowners during the Lolo Peak fire in the Bitterroot Mountains in Montana in July 2017. The panel held that the Forest Service’s specific communications with the landowners exceeded the incident decision’s instruction and involved an element of judgment or choice sufficient to satisfy the first step of the discretionary function exception. The panel held that the Forest Service’s decisions about notifying the landowners about fire-suppression activities likely to occur on and near their properties were susceptible to a policy analysis. View "MICHELLE SCHURG, ET AL V. USA" on Justia Law

A group of pro se aggrieved property owners dubbed “Riverton Citizens Group,” timely filed a petition for judicial review challenging the Bingham County Commissioners’ (“the County”) decision to grant a zone change request. The caption of the petition named “Riverton Citizens Group” as the pro se petitioner, but the body of the petition then named the aggrieved property owners individually as the parties petitioning the County’s decision, while also providing that they were proceeding pro se under the title of “Riverton Citizens Group.” The petition was not signed by any of the aggrieved property owners. Instead, it was signed by a non-petitioner who purported to be the “agent” for “Riverton Citizens Group.” The purported “agent” was not licensed to practice law in Idaho. After the district court entered a notice of intent to dismiss the petition because Riverton Citizens Group was not represented by counsel, the aggrieved property owners attempted to correct the petition through five subsequent filings, each signed by only one of the aggrieved property owners. The district court subsequently issued a written decision, concluding the petition was “improperly filed” and therefore was not a “petition” that invoked the district court’s subject matter jurisdiction under Idaho Rule of Civil Procedure 84(n). Because the time for filing a new “petition” under I.R.C.P. 84(n) had passed, the district court dismissed the case with prejudice—reasoning it no longer had jurisdiction. A licensed attorney did not appear on behalf of the aggrieved property owners until after the district court’s decision to dismiss. The Idaho Supreme Court vacated the district court’s order: “the errors in the caption and the omitted signatures were not fatal or so defective as to render the petition a nullity or ‘improperly filed’ such that the district court had no subject matter jurisdiction. Instead, these errors may be corrected through a filing or amended petition on remand that relates back to the date of the timely petition.” View "Riverton Citizens Group v. Bingham County Commissioners" on Justia Law

The First Circuit affirmed the judgment of the district court dismissing the claim brought by the Back Beach Neighbors Committee alleging that the Town of Rockport, Massachusetts committed a class-of-one equal protection violation by failing adequately to enforce local rules against scuba divers at Back Beach, holding that the district court did not err.The Committee brought this complaint claiming that the Town's failure consistently to enforce various rules as to Back Beach led to the singling out of the beach as a place "to welcome divers." The district court granted the Town's motion to dismiss as to six of the complaint's eight counts and then granted summary judgment for the Town on the remaining counts. The First Circuit affirmed, holding that because the Committee did not plausibly allege the existence of similarly-situated comparators, its class-of-one equal protection claim failed. View "Back Beach Neighbors Committee v. Town of Rockport" on Justia Law

The Town of Chapel Hill, North Carolina (the “Town”) requires housing developers seeking a special use permit to set aside a portion of their developments for low-income residents or pay a fee in lieu of that condition. In 2015, Epcon Homestead, LLC (“Epcon”)  initiated its purchase of property subject to the fee-in-lieu. Epcon paid the requisite fee installments, commenced the development project, and sold each parcel. After Epcon satisfied its final fee installment in March 2019, it brought this lawsuit under a state cause of action to recover the whole sum it had paid to the Town and alleged federal takings and due process violations. The district court dismissed the case under North Carolina’s three-year statute of limitations for personal injury claims. Epcon promptly appealed, asking this Court to hold that the statute of limitations on Epcon’s federal claims began instead when it paid the fee installments.   The Fourth Circuit affirmed. The court held that Epcon’s federal claims are barred by the statute of limitations because it bought the property subject to the special use condition more than three years before it finally filed this lawsuit. The court also affirmed the district court’s decision to decline supplemental jurisdiction over Epcon’s state-law claims. The court explained that the fact that the special use permit did not require and simply permitted Epcon to develop the land for the use described in the application is hardly noteworthy—permitting a particular use is an essential feature of any permit. Thus, when Epcon learned of the special use permit condition on its recently acquired land, its takings claim became actionable. View "Epcon Homestead, LLC v. Town of Chapel Hill" on Justia Law

The Supreme Court reversed the judgment of the circuit court dismissing Residents' claims against the Board of Supervisors of Fairfax County, holding that the circuit court erred in dismissing Residents' complaint.Residents brought this action seeking declaratory relief and to enjoin the Board from adopting an updated zoning ordinance via electronic meeting. In the alternatively, if the Board adopted the ordinance via an electronic meeting, Residents sought a declaration that any action by the Board or approval concerning the ordinance was void ab initio. The circuit court denied relief, finding, among other things, that Residents' claims were moot and that the Board had the authority to adopt the ordinance in an electronic meeting. The Supreme Court reversed, holding (1) the circuit court erred in concluding that the Board's adoption of the ordinance mooted Residents' declaratory judgment claim; (2) the circuit court erred in dismissing Residents' complaint as premature; and (3) the Board adopted the ordinance in a manner that violated the open meeting provisions of the Virginia Freedom of Information Act, Va. Code 2.2-3700 et seq. View "Berry v. Bd. of Supervisors" on Justia Law

The Pueblo of Jemez filed a quiet title action against the United States relating to lands comprising the Valles Caldera National Preserve (“Valles Caldera”), which the United States purchased from private landowners in 2000. In an earlier appeal, the Tenth Circuit Court of Appeals reviewed the district court’s ruling dismissing the case for lack of subject-matter jurisdiction. The Court reversed and remanded, finding that an 1860 federal grant of title to private landowners would not extinguish the Jemez Pueblo’s claimed aboriginal title. Upon remand, the Jemez Pueblo could establish that it once and still had aboriginal title to the lands at issue. After a twenty-one-day trial, the district court ruled that the Jemez Pueblo failed to establish ever having aboriginal title to the entire lands of the Valles Caldera, failing to show that it ever used the entire claimed land to the exclusion of other Indian groups. The Jemez Pueblo moved for reconsideration under Federal Rule of Civil Procedure 59(e). But rather than seek reconsideration of its complaint’s QTA claim to the entire Valles Caldera, the Jemez Pueblo shrunk its QTA claim into claims of title to four discrete subareas within the Valles Caldera: (1) Banco Bonito, (2) the Paramount Shrine Lands, (3) Valle San Antonio, and (4) the Redondo Meadows. The district court declined to reconsider all but Banco Bonito, on grounds that the Jemez Pueblo hadn’t earlier provided the government notice of these claims. Even so, being thorough, the court later considered and rejected those three claims on the merits. Of the issues raised by the Jemez Pueblo on appeal, we primarily address its challenge to the district court’s ruling that the Jemez Pueblo lost aboriginal title to Banco Bonito. The Tenth Circuit concluded the district court erroneously interpreted "Jemez I" in ruling that the Jemez Pueblo lost aboriginal title to Banco Bonito. So in accordance with longstanding Supreme Court precedent, and by the district court’s findings, the Court held the Jemez Pueblo still had aboriginal title to Banco Bonito. The Court reversed in part the denial of the Jemez Pueblo’s motion for reconsideration, and vacated in part and remanded with instructions to the district court. The Court affirmed in all other respects. View "Pueblo of Jemez v. United States, et al." on Justia Law

A 2008 Michigan initiative decriminalized marijuana for medical purposes; a 2016 law afforded legal status to medical marijuana dispensaries. In Detroit, the Buildings, Safety Engineering, and Environmental Department (BSEED) screened applications for such facilities. The code prohibits locating such a facility in a drug-free zone–an area “within 1,000 radial feet of the zoning lot” containing any one of several "sensitive places," including a school.Genie applied to run a medical marijuana distribution facility on Mack Avenue in Detroit. BSEED denied the application at the screening stage because the proposed site was in a drug-free zone based on a lot (in the neighboring community of Grosse Point Park) on which St. Clare School sits. Genie unsuccessfully challenged the determination through state administrative and judicial channels. Detroit deemed the St. Clare’s “zoning lot” to include land where the parish church sits (the church and school have separate lots of record), all of which is listed under a single tax parcel number.Genie sued in federal court, arguing that Detroit erred in measuring the distance between the proposed Genie site and St. Clare’s while approving other sites in violation of the equal protection and due process guarantees. The Sixth Circuit affirmed summary judgment in favor of Detroit. Genie had no property interest in its proposed facility. Detroit applied the same method of measurement to each comparable applicant. Although Genie cited two applications that were approved, many applications were rejected on that basis. View "Green Genie, Inc. v. City of Detroit" on Justia Law

In 1985, Palo Alto established the Commercial Downtown zoning district with parking regulations that allowed for “payment of an in-lieu monetary contribution to the city to defray the cost” of new, off-site parking spaces for “sites which would otherwise be precluded from development due to parking constraints.” In 1995, the city recognized the need to further mitigate insufficient downtown parking facilities and established an in-lieu parking fee for new, nonresidential development in the “University Avenue parking assessment district.” City staff has periodically submitted “five-year findings” on the parking fund, consistent with the Mitigation Fee Act (Gov. Code, 66000).The plaintiffs, developers who paid the fees as a condition of approval of a building project, sued, seeking a refund of their unexpended fees. The city argued that the fee was not subject to the Mitigation Fee Act; that the five-year finding and refund provisions did not apply; that, even if the Act did apply, the claim was barred by the statute of limitations; and that it complied with the Act’s requirements by belatedly adopting five-year findings.The court of appeal reversed the trial court, ordering a refund of the plaintiffs’ unexpended fees. The fee is subject to the Act, and the action is not time-barred. The failure to timely make five-year findings triggered the refund provision. Section 65010(b), does not require that plaintiffs make an independent showing of prejudice for a violation of section 66001(d) View "Hamilton and High, LLC v. City of Palo Alto" on Justia Law

The Town of Chapel Hill, North Carolina (the “Town”) requires housing developers seeking a special use permit to set aside a portion of their developments for low-income residents or pay a fee in lieu of that condition. In 2015, Plaintiff initiated its purchase of property subject to the fee-in-lieu. Plaintiff paid the requisite fee installments, commenced the development project, and sold each parcel. After Plaintiff satisfied its final fee installment in March 2019, it brought this lawsuit under a state cause of action to recover the whole sum it had paid to the Town and alleged federal takings and due process violations. The district court never reached those claims because it determined that Plaintiff waited too long to pursue them. The district court dismissed the case under North Carolina’s three-year statute of limitations for personal injury claims. Plaintiff promptly appealed, asking the Fourth Circuit to hold that the statute of limitations on Plaintiff’s federal claims began instead when it paid the fee installments.   The Fourth Circuit affirmed the district court’s dismissal of those claims. Having disposed of Plaintiff’s federal claims, the court also affirmed the district court’s decision to decline supplemental jurisdiction over Plaintiff’s state-law claims. The court explained, Plaintiff first had reason to know of this injury no later than 2015. Thus, its claim that the permit condition violated its rights to just compensation and due process accrued at that point and extinguished three years later. By the time Plaintiff filed suit, the sun had set on its federal claims. View "Epcon Homestead, LLC v. Town of Chapel Hill" on Justia Law