Justia Zoning, Planning & Land Use Opinion Summaries

The City filed suit alleging that the Commission's approval of an electrical grid project violated the City's due process rights. The Ninth Circuit affirmed the district court's dismissal of the City's claims based on lack of standing. In light of City of South Lake Tahoe v. California Tahoe Regional Planning Agency and its progeny, the panel held that the City cannot challenge the Commission's decision on due process grounds in federal court. Furthermore, the City's claims were barred by Eleventh Amendment sovereign immunity. In this case, the City never asked for leave to add a commissioner as a party and has waived its right to amend. View "City of San Juan Capistrano v. California Public Utilities Commission" on Justia Law

Tennessee’s Billboard Act, enacted to comply with the Federal Highway Beautification Act, 23 U.S.C. 131, provides that anyone intending to post a sign along a roadway must apply to the Tennessee Department of Transportation (TDOT) for a permit unless the sign falls within one of the Act’s exceptions. One exception applies to signage “advertising activities conducted on the property on which [the sign is] located.” Thomas owned a billboard on an otherwise vacant lot and posted a sign on it supporting the 2012 U.S. Summer Olympics Team. Tennessee ordered him to remove it because TDOT had denied him a permit and the sign did not qualify for the “on-premises” exception, given that there were no activities on the lot to which the sign could possibly refer. Thomas argued that the Act violated the First Amendment. The Sixth Circuit affirmed that the Act is unconstitutional. The on-premises exception was content-based and subject to strict scrutiny. Whether the Act limits on-premises signs to only certain messages or limits certain messages from on-premises locations, the limitation depends on the content of the message. It does not limit signs from or to locations regardless of the messages. The provision was not severable from the rest of the Act. View "Thomas v. Bright" on Justia Law

After SCE filed suit for interference with easement and declaratory relief, defendant cross-complained, seeking damages for nuisance, trespass, and ejectment. The trial court found that SCE was granted floating easements over the property to access its electrical facilities; although the floating easements burdened the property at the time of creation, they did not become fixed easements until SCE and the property owners agreed on the access routes; at that point, SCE became the owner of an easement of reasonable width over each agreed-upon access route; and thus SCE was entitled to free access to those routes.The Court of Appeal held that the trial court properly determined that SCE owns easements over the agreed-upon access routes. The court also held that SCE did not forfeit its statute of limitations defense to the cross-claims. Furthermore, because the trial court's findings established that the alleged nuisance was permanent, defendant's challenge to the summary adjudication ruling was moot. View "Southern California Edison Co. v. Severns" on Justia Law

Intervenor-Appellant the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) purchased an undeveloped 76-acre parcel of land near Tahlequah, Oklahoma, with the intention of developing it into a tribal and cultural center (Subject Tract, or Subject Parcel). The Subject Parcel sat entirely within the boundaries of the former reservation of Appellees the Cherokee Nation of Oklahoma (Nation). In 2004, the UKB submitted an application to the Department of the Interior’s Bureau of Indian Affairs (BIA), requesting the BIA take the Subject Parcel into trust, thereby formally establishing a UKB tribal land base. The Nation opposed the application. After seven years of review, the BIA approved the UKB’s application. The Nation sued Department of the Interior and BIA officials, with the UKB intervening as defendants, challenging the BIA’s decision on several fronts. The district court found in favor of the Nation, determining that the BIA’s decision to take the Subject Parcel into trust was “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.” Among other holdings, the district court concluded that: (1) the BIA had to obtain Nation consent before taking the Subject Parcel into trust; (2) the BIA’s analysis of two of its regulations as applied to the UKB application was arbitrary and capricious; and (3) the BIA must consider whether the UKB meets the Indian Reorganization Act (IRA)’s definition of “Indian” in light of the Supreme Court case Carcieri v. Salazar, 555 U.S. 379 (2009). On appeal, the Tenth Circuit determined the Secretary of the Interior had authority to take the Subject Parcel into trust under section 3 of the Oklahoma Indian Welfare Act of 1936 (OIWA). The BIA was therefore not required to consider whether the UKB met the IRA’s definition of “Indian.” Nor was the BIA required to obtain the Nation’s consent before taking the land into trust. The Court also held the BIA’s application of its regulations was not arbitrary and capricious. View "Cherokee Nation v. Zinke" on Justia Law

Four appeals arose from a consolidated subcase that was a part of the broader Coeur d’Alene-Spokane River Basin Adjudication (CSRBA). The United States Department of the Interior (the United States), as trustee for the Coeur d’Alene Tribe (the Tribe), filed 353 claims in Idaho state court seeking judicial recognition of federal reserved water rights to fulfill the purposes of the Coeur d’Alene Tribe’s Reservation (the Reservation). The Tribe joined the litigation. The State of Idaho (the State) and others objected to claims asserted by the United States and the Tribe. The district court bifurcated the proceedings to decide only the entitlement to water at this stage, with the quantification stage to follow. After cross-motions for summary judgment, the district court allowed certain claims to proceed and disallowed others. The district court specifically allowed reserved water rights for agriculture, fishing and hunting, and domestic purposes. The district court allowed reserved water rights for instream flows within the Reservation, but disallowed those for instream flows outside the Reservation. The district court determined priority dates for the various claims it found should proceed to quantification, holding generally the Tribe was entitled to a date-of-reservation priority date for the claims for consumptive uses, and a time immemorial priority date for nonconsumptive uses. However, in regard to lands homesteaded on the Reservation by non-Indians that had since been reacquired by the Tribe, the district court ruled the Tribe was entitled to a priority date of a perfected state water right, or if none had been perfected or it had been lost due to nonuse, the Tribe’s priority date would be the date-of-reacquisition. The Idaho Supreme Court affirmed in part and reversed in part. The Supreme Court determined the district court improperly applied the controlling case law's rule of "primary-secondary" distinction and instead should have allowed aboriginal purposes of plant gathering and cultural uses under the homeland purpose theory. Furthermore, the Court determined the priority date associated with nonconsumptive water rights was time immemorial. The Court affirmed the remainder of the district court’s decisions and remanded for further proceedings. View "United States v. Idaho" on Justia Law

Shirli Weiss, as trustee for her trust, applied under a local scenic view ordinance to compel a neighboring property owner to trim and maintain its landscaping. After the city denied her application, Weiss petitioned for an administrative writ of mandate in the superior court. The court dismissed the action because Weiss served the summons on the city more than 90 days after it denied her application. On appeal, Weiss challenged the applicability of Gov. Code section 65009. Finding no reversible error, the Court of Appeal affirmed. View "Weiss v. City of Del Mar" on Justia Law

Plaintiffs R.L. Vallee, Inc. (Vallee) and Timberlake Associates, LLP (Timberlake) appealed various aspects of three decisions that culminated in the environmental division granting the Vermont Agency of Transportation (VTrans) Act 250 and stormwater discharge permits for a highway project involving the reconfiguration of an interstate exit. The Vermont Supreme Court concluded the environmental division erred in dismissing Vallee’s questions regarding Criterion 1 of Act 250; in all other respects, the Court affirmed. Accordingly,issuance of the stormwater permit was upheld, issuance of the Act 250 permit was reversed, and the matter remanded for the environmental division to consider Vallee’s questions concerning Criterion 1. View "In re Diverging Diamond Interchange SW Permit, Diverging Diamond Interchange A250" on Justia Law

Sam Conant owned 204 North Avenue from 1979 to 2002. The City of Burlington, Vermont assessed the property as a duplex in 1985. Conant converted the structure on the property from a duplex to a triplex in 1992 and began renting its three units in 1993. He obtained a building permit prior to construction, but he never obtained the required certificate of occupancy. In October 1993, City assessors inspected the property and found that the building contained three units. Pierre Gingue purchased 204 North Avenue from Conant in 2002 and continued to rent out the three apartments. The City issued a notice of violation to Gingue in July 2017 for “a change of use from a duplex to a triplex without zoning approval,” which the City stated was in violation of the City’s Comprehensive Development Ordinance. Gingue did not dispute that the property is in violation of the ordinance, rather, that the statute of limitations in 24 V.S.A. 4454(a) barred the NOV. Based on the plain language of the statute, the Vermont Supreme Court held the statute of limitations did bar the NOV and reversed the trial court’s decision. View "In re 204 North Avenue NOV" on Justia Law

Luke Purvis appealed the Environmental Division’s denial of his motion for relief under Vermont Rule of Civil Procedure 60(b)(1) and (2). In September 2014, the City of Burlington Code Enforcement Office notified Purvis that it had received a complaint regarding unpermitted expansion of the parking area on his property. It ordered Purvis to restore the area to green space. Purvis appealed to the Development Review Board, arguing that the expansion of the parking area was an unenforceable permit because the expansion first occurred over fifteen years prior. After reviewing various affidavits, drawings, photos, and other exhibits submitted by the City and Purvis, the Board found no violation because it concluded that parking in the area had stopped. Because it found that parking in the area had ceased for a period in excess of sixty days, it held that Purvis had lost the benefit of the fifteen-year limitation on enforcement actions under 24 V.S.A. 4454 and any potential claim to reestablish the right to expanded parking. Purvis appealed that determination to the Environmental Division in May 2015. In August 2016, the parties entered into a settlement agreement, which provided that the parties would dismiss the suit without prejudice. It also provided that the City and Purvis would meet again in another mediation no later than January 15, 2017, to attempt to resolve all disputes. That mediation never took place; no party moved to reopen or extend before August 1, 2017. In March 2018, Purvis moved for relief from the Stipulated Order pursuant to Vermont Rule of Civil Procedure 60(b)(6), arguing that he should be granted relief because he had been represented by conflicted counsel at the time he entered into the Settlement Agreement and submitted the Stipulated Order, and because he had relied on the City’s expressed willingness to mediate after the August 2017 deadline. The Environmental Division held that the motion for relief was unwarranted because Purvis did not file a motion to reopen or extend the time for such a motion before the August 1, 2017 deadline contemplated in the Stipulated Order. On appeal to the Supreme Court, Purvis argued his motion was not time-barred because the order from which he sought relief was not actually a final judgment. Finding no reversible error in the Environmental Division's judgment, the Vermont Supreme Court affirmed. View "In re Purvis Nonconforming Use" on Justia Law

Matheis, a retired police officer who has successfully managed a diagnosis of PTSD, routinely and safely donated plasma roughly 90 times in an 11-month period at CSL’s plasma donation facility. CSL barred him from making further donations when he brought his new service dog, Odin, to the facility, citing its policy to bar any individual who is prescribed daily more than two separate anxiety medications or who uses a service animal to manage anxiety. The company required Matheis to provide a letter from his doctor stating he had no need for a service animal before it would screen him for further plasma donation. He sued under the Americans with Disabilities Act, 42 U.S.C. 12181. The Third Circuit reversed the district court. Plasma donation centers are “service establishments,” subject to the ADA’s prohibition on unreasonable discrimination. CSL violated the ADA by imposing a blanket ban on prospective donors who use a psychiatric service animal. Public accommodations like CSL must permit disabled individuals to use service animals unless they can show a regulatory exception applies, “based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” View "Matheis, Jr. v. CSL Plasma Inc" on Justia Law