Justia Zoning, Planning & Land Use Opinion Summaries

The Authority's Mohegan Sun Arena in Wilkes-Barre holds up to 10,000 people and hosts athletic and other commercial entertainment events. The Arena is set back and fenced apart from the public road. Patrons drive on an access road, park in an Arena parking lot, and then walk on a concrete concourse to the “East Gate” and “West Gate” entrances. “All persons are welcome to express their views” at the Arena; protesters must stand within “designated area[s]” on the concourse and “[h]andouts can only be distributed from within” those areas. The designated areas are two “rectangular enclosure[s] constructed from bike racks,” next to the Gates. The policy bans protesters from using profanity or artificial voice amplification. LCA, an animal rights group wanting to protest circus events, sued under 42 U.S.C. 1983.The trial court found that the Authority was “a public governmental entity acting under color of state law” and entered a preliminary injunction that allowed up to 20 protesters to distribute literature and talk to patrons within a circumscribed section of the concourse; protesters could not block ingress or egress. LCA protested under those terms at 2016-2017 circus performances. At a subsequent trial, LCA introduced evidence that protesters in the "designated areas" attracted little attention and videos showing nonconfrontational interactions with no abnormal congestion. The Arena expressed concerns about unruly protestors and argued that the location condition minimizes congestion and security risks. The court found all three restrictions violated the First Amendment.The Third Circuit reversed in part. The concourse’s function is to facilitate pedestrian movement; a policy sensibly designed to minimize interference with that flow is not unreasonable. The Arena did not establish that the bans on profanity and voice amplification are reasonable. View "Pomicter v. Luzerne County Convention Center" on Justia Law

In its second appearance before the Georgia Supreme Court, the dispute between appellee Lowndes County Board of Tax Assessors (“the Board”) and eight partnerships which built and operated affordable housing apartment complexes (“Section 42 properties”) in Lowndes County (collectively, “Appellants”), with the help of federal and state Low Income Housing Tax Credits (“LIHTCs” or “Section 42 Tax Credits”), in connection with which they executed Land Use Restrictive Covenants. The dispute this time turned on the valuation of those tax credits when calculating ad valorem real property taxes. The Supreme Court determined the trial court had subject matter jurisdiction to decide this case, and that LIHTCs did not constitute “actual income” for purposes of OCGA 48-5-2 (3) (B) (vii) (II). Moreover, OCGA 48-5-2 (3) (B) (vii) (I) and (II) did not run afoul of the Georgia Constitution’s taxation uniformity provision. Accordingly, the Court reversed the judgment of the trial court. View "Heron Lake II Apartments, LP v. Lowndes County Board of Tax" on Justia Law

Appellant Polo Golf and Country Club Homeowners Association, Inc. (“PGHOA”) filed a complaint for declaratory and injunctive relief against appellees John Cunard, Director of Forsyth County, Georgia's Department of Engineering, and Benny Dempsey, Stormwater Division Manager of Forsyth County’s Department of Engineering (the “stormwater executives”), in their individual capacities to determine their constitutional authority to prospectively enforce an addendum to Forsyth County’s stormwater ordinance. In January 2014, Forsyth County enacted a new version of Section 4.2.2 of the Georgia Stormwater Management Design Manual. PGHOA argued the 2014 version of Section 4.2.2 was unconstitutional because: (1) it impaired PGHOA’s contractual obligations with homeowners inasmuch as the 2014 version of Section 4.2.2 made PGHOA responsible for the maintenance of all stormwater mechanisms within the subdivision; and (2) it was retrospective in nature. According to PGHOA’s complaint, the 2014 version of Section 4.2.2 precluded it from enforcing the Declaration of Covenants, Restrictions and Easements (the “Declaration”), which required individual homeowners of the Polo Fields to maintain such drainage and stormwater mechanisms. The trial court rejected these constitutional challenges to the 2014 version of Section 4.2.2. Because it determined that the 2014 version of 4.2.2 was constitutional, the trial court concluded the stormwater executives were immune from suit based on the doctrine of sovereign immunity and granted the stormwater executives’ motion for judgment on the pleadings. The trial court granted the executives' motion, denying the motions for summary judgment as moot. The Georgia Supreme Court determined the trial court erred when it did not make a ruling on whether sovereign immunity applied before it considered more substantive matters. Likewise, the trial court erred in its finding that sovereign immunity barred PGHOA's suit. Therefore, that portion of the trial court's judgment dismissing the case on sovereign immunity grounds was reversed. The Court affirmed the trial court's grant of the motion for judgment on the pleadings based on the constitutional issues concerning PGHOA's contract rights. The trial court did not address PGHOA's various other claims, including trespass and involuntary servitude. The case was remanded for the trial court to address those claims in order to fully resolve the stormwater executives' motion for judgment on the pleadings. View "Polo Golf & Country Homeowners Association, Inc. v. Cunard" on Justia Law

At issue in this appeal and cross appeal of a the trial court's ruling on a petition for writ of administrative mandate James and Karla Lindstrom (the Lindstroms) filed against the California Coastal Commission (the Commission) was a challenge to certain special conditions the Commission placed on its approval of the Lindstroms' plan to build a house on a vacant oceanfront lot on a bluff in Encinitas. The Commission appealed the trial court's disapproval of the special conditions requiring: (1) the home to be set back 60 to 62 feet from the edge of the bluff, instead of the 40-foot setback approved by the City of Encinitas (the City); and (2) a waiver by the Lindstroms of any right to construct a shoreline protective device, such as a seawall, to protect the home from damage or destruction from natural hazards at any time in the future. The Lindstroms cross-appealed the trial court's approval of the special conditions requiring: (1) removal of the home from the parcel if any government agency ordered it not be occupied due to a natural hazard; and (2) performance of remediation or removal of any threatened portion of the home if a geotechnical report prepared in the event the edge of the bluff recedes to within 10 feet of the home concludes that the home is unsafe for occupancy. The Court of Appeal concluded that with one exception, the Commission's imposition of the special conditions identified by the parties was within its discretion. Specifically, the condition requiring removal of the home from the parcel if any government agency orders that it not be occupied due to a natural hazard, including erosion or a landslide, as currently drafted, was overbroad, unreasonable and did not achieve the Commission's stated purpose in drafting it. Therefore, the Court reversed the judgment and directed the trial court to enter a new judgment ordering the Commission to either delete the special condition or to revise it to more narrowly focus on its intended purpose. View "Lindstrom v. Cal. Coastal Commission" on Justia Law

This case concerned whether the city of Tacoma (City) could be held liable for damages for imposing an unlawful condition on a building permit. The Church of the Divine submitted an application to the City to build a parsonage on property it owned. A single-family residence had previously been located on the property, but it had been demolished in 2012. City staff reviewed the permit application and placed a number of conditions on it, including, at issue here, a requirement that the Church dedicate a 30-foot-wide strip of land for right-of-way improvements to a street abutting the property. While the existing street was generally 60 feet wide in other areas, it was 30 feet wide next to the Church's property. This lack of uniformity had existed for around 100 years. The Church challenged the permit conditions, and the City eventually removed most of them but kept the requirement for a dedication. The Church appealed the decision to the City's hearing examiner, and the hearing examiner granted summary judgment in favor of the City. The Church appealed under the Land Use Petition Act (LUPA), in which it challenged the hearing examiner's decision and also sought damages under RCW 64.40.020. In addressing the propriety of the dedication, the court confined its review to the administrative record that had been before the hearing examiner and acknowledged that, in that record, the stated purpose by the City for imposing the dedication requirement was to create a uniform street. The court held that this reason was insufficient to justify the requirement and reversed the hearing examiner, invalidating the condition. A trial court denied the Church’s request for damages and the Church appealed. The Court of Appeals affirmed the trial court. The Washington Supreme Court revered however, finding that the City's subjective belief that the dedication was lawful did not determine what it objectively should reasonably have known. The Court of Appeals erred in reasoning otherwise. The matter was remanded for a new trial. View "Church of the Divine Earth v. City of Tacoma" on Justia Law

The Supreme Court granted a writ of mandamus to compel the Sandusky County Board of Elections to place a referendum petition concerning a city zoning ordinance on the November 2019 general election ballot, holding that the board's decision was contrary to law.The board excluded the petition from the ballot upon finding that the city zoning ordinance was properly passed as an emergency measure and was therefore not subject to referendum. The Supreme Court reversed, holding that the ordinance failed to state an emergency under Ohio Rev. Code 731.30 and was not properly enacted as an emergency measure. Therefore, the ordinance was subject to referendum. View "State ex rel. Hasselbach v. Sandusky County Board of Elections" on Justia Law

An industrial park was built in an unincorporated area in Laurens County, South Carolina, between the City of Laurens (Laurens) and the City of Fountain Inn (Fountain Inn). Both municipalities provided natural gas service beyond their respective borders, and each sought to serve the industrial customers in the new industrial park. However, Laurens -through its subsidiary, the Laurens Commission of Public Works (LCPW) - claimed Fountain Inn could not compete for the industrial customers' business because LCPW had established a designated service area and therefore was the sole authorized natural gas provider to the industrial park. Fountain Inn believed the industrial park was not part of a designated service area, and thus LCPW did not have an exclusive right to provide natural gas to customers in the industrial park. In support of its claim, LCPW asserted it had satisfied the requirements of S.C. Code section 5-7-60 (2004) by providing natural gas in the general vicinity for twenty years pursuant to a 1992 boundary line that was informally agreed to by Laurens and Fountain Inn. Agreeing with LCPW that it had properly created a designated service area, the circuit court enjoined Fountain Inn from providing natural gas service to the industrial park, and the court of appeals affirmed. Because there was no reasonable interpretation of section 5-7-60 that would permit LCPW to claim a designated service area over the industrial park, the South Carolina Supreme Court reversed. View "Commissioners of Public Works v. City of Fountain Inn" on Justia Law

The Supreme Court affirmed the judgment of the court of appeals affirming the judgment of the trial court granting declaratory judgment ordering the planning commission of the city of Broadview Heights to issue a certificate of approval to Gloria Wesolowski, holding that the thirty-day time limit set forth in Ohio Rev. Code 711.09(C) applies to a city planning commission and prevailed over the municipal subdivision regulation at issue in this case.After the commission denied Wesolowski's application seeking to subdivide property Wesolowski filed an administrative appeal alleging that the commission failed to comply with section 711.09(C), which requires that the commission either approve or deny a subdivision application within thirty days after its submission. The trial court agreed and granted partial summary judgment in Wesolowski's favor. The commission appealed, arguing that section 711.09(C) does not apply to cities because the city's regulations, adopted pursuant to its home-rule powers, prevail over section 711.09(C). The court of appeals affirmed. The Supreme Court affirmed, holding (1) the time limit set forth in section 711.09(C) applies to both cities and villages; and (2) a home-rule municipality's adoption of subdivision regulations is an exercise of its police powers, and therefore, section 711.09(C) prevails over any conflicting municipal subdivision regulation. View "Wesolowski v. Broadview Heights Planning Commission" on Justia Law

Defendant New Method Wellness, Inc. (New Method), ran a drug treatment facility and housed some of its patients in three residences (the Properties) located in residential zones within the City of Dana Point (Dana Point). Dana Point brought a nuisance action on the ground that this use of the Properties was not authorized by the relevant zoning ordinance. The court found the homes were being used as part of the drug treatment facility and issued an injunction. The Court of Appeal found the evidence showed the Properties were advertised as part of the drug treatment facility, the residents’ lives are highly regulated, defendant NMW Beds, LLC (NMW Beds) imposed 24-hour supervision, provided transportation to defendant New Method’s drug treatment facility, and recovery treatments were offered. By this, the Court concluded this evidence supported the court’s finding that this use of the Propertieswasis not authorized under Dana Point’s relevant zoning ordinance, nor under any exception to the zoning ordinance, and thus it constituted a nuisance per se. View "City of Dana Point v. New Method Wellness, Inc." on Justia Law

A recall petition was filed against the Mayor and three Cathlamet council members; charges stemmed from Cathlamet’s purchase of a parcel of property at 20 Butler street. The petition alleged a violation of the Washington Constitution as a gift of public funds to the seller of the Butler Street property, Bernadette Goodroe. One additional charge against one town counselor alleged violation of RCW 42.23.070(2), prohibiting municipal officials from giving or receiving gifts related to their official capacities. The Washington Supreme Court determined the charges in the recall petition was legally insufficient, because acquisition of real property is a fundamental government purpose and discretionary act that was not manifestly unreasonable under the circumstances of this case. Accordingly, the Supreme Court affirmed the superior court. View "In re Recall of Burnham" on Justia Law