Justia Zoning, Planning & Land Use Opinion Summaries

Plaintiffs-Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff (collectively the “Alliance”) brought a number of claims under Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City City Code, and Santa Fe mayor proclamations. The Alliance alleged the statutes and proclamations violated due process, the Takings Clause, and the First Amendment. Through its amended complaint, the Alliance contended the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The Alliance further contended these legislative and executive acts prevented it from effectively speaking out against the installation of new telecommunications facilities. The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe moved to dismiss under Rule 12(b)(6). The district court concluded that while the Alliance pled sufficient facts to establish standing to assert its constitutional claims, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted, thus dismissing claims against all defendants, including New Mexico Attorney General Hector Balderas. The Tenth Circuit affirmed dismissal of the Alliance's constitutional claims, finding apart from the district court, that the Alliance lacked standing to raise its takings and due process claims not premised on an alleged denial of notice. Furthermore, the Court held that while the Alliance satisfied the threshold for standing as to its First Amendment and procedural due process claims (premised on the WCAIIA and Chapter 27 Amendments), the district court properly dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). View "Santa Fe Alliance v. City of Santa Fe" on Justia Law

Landowners Cash Aaland, Larry Bakko, and Penny Cirks, appealed orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argued these surveys and examinations are beyond the scope of N.D.C.C. 32-15-06. After review, the North Dakota Supreme Court reversed, concluding the District’s right of entry exceeded the limited testing permitted under the statute. The matter was remanded for a determination on attorney’s fees and costs. View "Cass County Joint Water Resource District v. Aaland, et al." on Justia Law

Citizens Against Linscott/Interstate Asphalt Plant (“CAL”) challenged a conditional use permit (“CUP”) issued by the Bonner County, Idaho Board of Commissioners (“the County”). The CUP was based on a recent amendment to Bonner County zoning ordinances (“the Amendment”) and authorized Interstate Concrete and Asphalt Company (“Interstate”) to operate an asphalt batch plant within Frank and Carol Linscott’s gravel mine in Sagle, Idaho. In its petition for judicial review by the Bonner County district court, CAL challenged both the validity of the Amendment and the County’s decision to issue the CUP. The district court determined that CAL had standing to file its petition for judicial review of the CUP and that CAL had timely filed its petition. However, the district court concluded that it could not declare the Amendment invalid in a proceeding for judicial review under Idaho Local Land Use Planning Act (“LLUPA”) and the Idaho Administrative Procedure Act (“IDAPA”). Accordingly, the district court upheld the County’s decision to grant the CUP, giving the County deference in applying its own land-use ordinances. During the pendency of this appeal, CAL filed an action for declaratory relief before another district court judge to have the Amendment declared void. In that proceeding, the County admitted that the Amendment had been adopted without proper public notice and stipulated to a judgment and order declaring the Amendment void. On appeal of the administrative decision to the Idaho Supreme Court, CAL argued, among other things, that the subsequent voiding of the Amendment also invalidated the CUP or that the CUP was not issued in conformity with Bonner County zoning laws. After review, the Supreme Court affirmed in part, and reversed in part. The Court found the CUP authorizing the relocation of the Interstate asphalt batch plant to the Linscotts’ gravel mine was invalid because it was based on a void amendment to Bonner County Code. Further, the County acted in a manner that was arbitrary and capricious in refusing to address the gravel pit’s compliance with the nonconforming use provisions of BCRC. View "Citizens Against Linscott v. Bonner County Board of Commissioners" on Justia Law

Before seeking damages for a governmental taking of property through inverse condemnation, the property owner must generally submit more than one proposal to the permitting authority seeking zoning variances or reducing environmental impacts to the extent necessary to allow at least some economically beneficial or productive use of the property. In this case, the Court of Appeal held that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.The court affirmed the trial court's judgment and fee award in this inverse condemnation action. In this case, the trustee submitted plans to build an ocean-front residential property, but the planning commission rejected the development permit. The court concluded that substantial evidence established that the city would not permit any development below the 127-foot elevation, and that the limited area above that elevation was unbuildable. Therefore, submission of an additional application would have been futile. Furthermore, substantial evidence establishes that it would have been futile to submit modified plans because the agency's decision was certain to be adverse. Finally, the court rejected the city's contention that the trustee failed to litigate his writ petition to conclusion because he did not argue the Public Resources Code section 30010 claim in those proceedings. View "Felkay v. City of Santa Barbara" on Justia Law

The Eighth Circuit affirmed the district court's denial of plaintiff's motion for a preliminary injunction seeking to enjoin defendants from enforcing the City of Davenport's Special Events Policy against him. In this case, plaintiff seeks to protect his right to share his religious messages in public spaces within Davenport. The district court found that the Street Fest was a traditional public forum and that law enforcement's decision to move plaintiff to an adjacent location was likely a content-neutral limitation on the time, place, and manner of his speech.The court concluded that the district court did not err in determining the Special Events Policy was a content-neutral permitting scheme. Furthermore, even if it the court assumed for purposes of this appeal, without deciding, that plaintiff has shown a likelihood of success on the merits, the court found that plaintiff's inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief. View "Sessler v. City of Davenport" on Justia Law

The Eighth Circuit affirmed the district court's dismissal of plaintiff's 42 U.S.C. 1983 claim, alleging that the County's right-of-way dedication ordinance violates their procedural due process rights. The court concluded that plaintiffs' due process and unconstitutional conditions claims are an impermissible attempt to recast a Takings claim. In this case, plaintiffs claim that the County's dedication rules could result in an exaction, which would require consideration of nexus and proportionality. However, the court concluded that this conflates takings and due process law. The court explained that plaintiffs claim a redundant remedy under the due process clause.The court concluded that the ordinance here promotes the government's interest in providing public roads and was not truly irrational. Furthermore, because plaintiffs received individualized notice and an opportunity to be heard on their variance applications, the County provided sufficient notice and opportunity for a hearing about their proposed uses. View "Pietsch v. Ward County" on Justia Law

A project developer that used state-allocated federal tax credits for a low-income housing project sued the state housing authority, asserting an option to eliminate a contractual obligation to maintain the project as low-income housing for 15 years beyond the initial 15-year qualifying period. The superior court granted summary judgment in favor of the housing authority, and the developer appealed several aspects of the court’s ruling. After review of the superior court record, the Alaska Supreme Court concluded that court correctly interpreted the relevant statutes and contract documents, and correctly determined there were no material disputed facts about the formation of the parties’ agreements. View "Creekside Limited Partnership, et al. v. Alaska Housing Finance Corporation" on Justia Law

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation, Ahtna, Inc. Ahtna sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders: (1) holding as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land; and (2) holding as a matter of law that the right of way was limited to ingress and egress. To these orders, the Alaska Supreme Court concluded the superior court did not err, therefore affirming both grants of partial summary judgment. View "Ahtna, Inc. v. Alaska, Department of Transportation & Public Facilities, et al." on Justia Law

The Willow property, south of the Apartments, contains a duplex, a concrete parking area, and a large undeveloped area in the rear. In 1964 the then-owners of both properties obtained a variance from Burlingame that allowed four off-site parking spaces for the Apartments to be located on the Willow property. They never expanded the Apartments as planned. The variance became void. The properties changed hands several times, remaining jointly owned. In 2005, both properties were acquired by Shiheiber, who allowed tenants of the Apartments to use the Willow property for access, parking, storage of garbage, and recreational purposes. In 2011, the properties ceased to be under common ownership. The Bank took title to the Apartments; Husain took title to Willow, aware that the Bank claimed a prescriptive easement. Tenants in the Apartments continued to use the Willow property.Husain sued the Bank to quiet title. The Bank cross-complained for a prescriptive easement. The trial court entered judgment for the Bank. The court of appeal affirmed, rejecting an argument that the use of the Willow property was permissive. The Bank never requested or received permission to use the Willow property, and simply used the property in a manner that was open, notorious, continuous, and hostile for more than five years. View "Husain v. California Pacific Bank" on Justia Law

Plaintiffs Krainewood Shores Association, Inc. and Black Cat Island Civic Association appealed a superior court decision granting defendants' Town of Moultonborough (Town) and TYBX3, LLC motion to dismiss. In 2018, TYBX3 sought to develop a vacant lot into condominium storage units for the purpose of storing large “toys,” such as boats, snowmobiles, and motorcycles. The Town’s planning board approved the application in May 2019. Plaintiffs appealed the planning board's decision, and defendants moved to dismiss, arguing the trial court lacked subject matter jurisdiction to hear the complaint as not timely filed. Specifically, the defendants argued that the plaintiffs missed the 30-day deadline imposed by RSA 677:15, I, to file an appeal of a planning board’s decision. To this, the trial court concurred and granted the motion. On appeal, the plaintiffs argue that the trial court erred in granting defendants’ motion to dismiss, and erred in denying plaintiffs’ motion to amend their complaint. Because the trial court did not decide whether to allow plaintiffs to amend their complaint, the New Hampshire Supreme Court vacated the order denying plaintiffs’ motion to amend, and remanded for the trial court to decide, in the first instance, whether plaintiffs’ amended complaint could proceed. The Court expressed no opinion as to the parties’ arguments regarding whether plaintiffs’ amended complaint would cure the jurisdictional defect. View "Krainewood Shores Association, Inc. v. Town of Moultonborough" on Justia Law