Justia Government & Administrative Law Opinion Summaries

Articles Posted in Zoning, Planning & Land Use
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In Case No. 02CW403, and Case No. 10CW306, the Colorado Water Court Division 1 determined, among other things, that the Farmers Reservoir and Irrigation Company (“FRICO”) did not have a decreed right to use seepage water accruing to a ditch known as the Beebe Seep Canal. FRICO nonetheless continued to utilize the seepage water outside the priority system to make additional water available to its shareholders for irrigation. In 2016, FRICO sought a decree confirming absolute and conditional water rights to use unappropriated: (1) water seeping from Barr Lake; and (2) natural runoff, drainage, waste, return flows, and seepage water arising in, flowing into, and accruing to the Beebe Seep Canal (the “Subject Water Rights”) to supplement water deliveries to its shareholders for irrigation. Following the culmination of stipulations with most of the twenty initial objectors and a five-day trial, the water court issued its final judgment confirming, adjudicating, approving, and decreeing FRICO’s use of the Subject Water Rights contingent upon certain terms and conditions outlined within the water court’s Amended Findings of Fact, Conclusions of Law, Judgment and Decree of the Court (“Amended Decree”). The issues raised by FRICO in this appeal concerned three of the specific terms and conditions that the water court placed upon FRICO’s use of the Subject Water Rights. The issue raised by three of the objectors in their cross-appeal concerned the water court’s authority to grant certain of these new rights. The Colorado Supreme Court found the water court's findings and its imposition of the challenged terms and conditions in the Amended Decree were supported by the record and did not violate FRICO's right to appropriate unappropriated water. Further, the Supreme Court held the water court was within its authority to grant FRICO the absolute rights challenged by the three objectors in their cross-appeal. View "Farmers Reservoir v. Arapahoe County" on Justia Law

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Martha owns the largest undeveloped parcel of property in the vicinity of Tiburon, 110 acres on top of a mountain, overlooking much of the town and commanding a stunning view of San Francisco Bay. For decades, Martha has sought approval from the County of Marin to develop the property. Local opposition has been intense, including federal court litigation, starting in 1975 and resulting in stipulated judgments in 1976 and 2007. The county twice publicly agreed to approve Martha building no fewer than 43 units on the property. In 2017, the county certified an environmental impact report and conditionally approved Martha’s master plan for 43 single-family residences. The county believed its actions were compelled by the stipulated judgments.The town and residents sued, claiming that the county effectively agreed it would not follow or enforce state law, specifically, the California Environmental Quality Act, to prevent the development of an anticipated project. The court of appeal upheld the approvals. Governmental powers are indefeasible and inalienable; they cannot be surrendered, suspended, contracted away, waived, or otherwise divested. Government cannot bind the hands of its successors. In this case, the county did not abdicate its authority or otherwise undertake not to comply with CEQA. “With its eyes wide open,” the county complied with a binding, final judgment; that judgment in no way anticipated or legitimated ignoring CEQA. View "Tiburon Open Space Committee v. County of Marin" on Justia Law

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Crystal Geyser Water Company bought a closed water bottling facility and sought to revive it. Both the County and the City ultimately granted the necessary permits. This appeal concerned one of two lawsuits challenging these approvals, brought pursuant to the California Environmental Quality Act (CEQA). In one suit, Appellants We Advocate Thorough Environmental Review and Winnehem Wintu Tribe alleged that the County’s environmental review for the bottling facility was inadequate under CEQA. In another, they alleged that the City’s decision to issue the wastewater permit for the bottling plant was also improper under CEQA. In this case, the County served as the lead agency and considered the potential environmental impacts of permitting the bottling facility before it or any other public agency issued a permit for the facility. But in Appellants’ view, the County’s analysis was inadequate. Appellants alleged the County: (1) provided a misleading description of the project; (2) defined the project’s objectives in an impermissibly narrow manner; (3) improperly evaluated the project’s impacts to aesthetics, air quality, climate change, noise, and hydrology; and (4) approved the project even though it would result in violations of the County’s and the City’s general plans. The trial court rejected all Appellants’ arguments. But the Court of Appeal found two contentions had merit: (1) the County defined the project’s objectives in an overly narrow manner; and (2) the process for evaluating the project’s impacts to climate change was flawed. Relevant to this point, the County initially informed the public that the bottling project would result in greenhouse gas emissions of one amount, but, after the period for public comments had ended, the County disclosed that the project would actually result in emissions nearly double what it initially estimated. Under the circumstances of this case, the appellate court found the County should have allowed the public further opportunity to comment on the project after this late disclosure. Judgment was reversed and the matter remanded for further proceedings. View "We Advocate Through etc. v. County of Siskiyou" on Justia Law

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Mark McAllister appealed an amended judgment of condemnation that ultimately allowed the City of West Fargo to use its eminent domain power to acquire a right of way across his property. After review of the district court record, the North Dakota Supreme Court concluded the district court did not err in holding West Fargo was authorized to use quick-take eminent domain procedures for its sewage improvement project. Furthermore, the Court concluded the trial court did not abuse its discretion in granting West Fargo’s motion in limine to exclude testimony from trial that the taking impacted McAllister’s property’s conformance with the city’s setback requirements. View "City of West Fargo v. McAllister" on Justia Law

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Delmarsh, LLC, a real-estate company, owned six lots in Bowers, Delaware. The lots had long been designated as wetlands on the State Wetlands Map. The Department of Natural Resources and Environmental Control (“DNREC”) removed a portion of the lots from the Wetlands Map in 2013 at Delmarsh’s request. In June 2019, Delmarsh requested that DNREC designate the remaining portion of the lots as non-wetlands. DNREC denied the request, and Delmarsh appealed to the Environmental Appeals Board (“the Board”). The Board affirmed DNREC’s denial. Delmarsh appealed to the Superior Court, arguing that refusal to reclassify the lands as non-wetlands, constituted a taking. The Superior Court affirmed the Board’s decision. The Delaware Supreme Court affirmed: At the time DNREC turned down Delmarsh’s request to de-designate the remainder of the lots as wetlands, the lots were zoned C/A: Conservation–Agriculture. Instead of focusing on the economic impact of the de-designation on the lots as zoned at the time of DNREC’s decision, Delmarsh relied exclusively on the economic impact on the lots as later rezoned to R-1—single-family residential housing. “By its own admission, the rezoning to residential occurred after the denial of its DNREC application. Delmarsh did not offer any argument or evidence that DNREC’s refusal to redesignate the lots caused them to lose any value while they were zoned as C/A. In the absence of such evidence, the Superior Court held correctly that no taking occurred.” View "Delmarsh, LLC v. Environmental Appeals Board of the State of Delaware" on Justia Law

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During excavation of an inactive gold mine in southwestern Colorado, a blowout caused the release of at least three million gallons of contaminated water into Cement Creek. The United States Environmental Protection Agency (“EPA”) conceded its responsibility for the spill and its impacts. The State of New Mexico, the Navajo Nation, and the State of Utah separately filed civil actions, under the Clean Water Act, in New Mexico and Utah against the owners of the mine, the EPA, and the EPA’s contractors. Defendant Environmental Restoration, LLC moved to transfer the Utah case to the District of New Mexico for coordinated or consolidated pretrial proceedings. The United States Judicial Panel on Multidistrict Litigation granted the motion and centralized proceedings in New Mexico. Later, the Allen Plaintiffs (individuals who farm land or raise livestock along the Animas River or San Juan River) filed a complaint in New Mexico that included state law claims of negligence, negligence per se, and gross negligence. The district court consolidated the Allen Plaintiffs’ suit, including the state law claims, into the Multidistrict Litigation. Defendant Environmental Restoration, LLC moved to dismiss the Allen Plaintiffs’ Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the Allen Plaintiffs did not file their complaint within Colorado’s two-year statute of limitations and therefore they failed to state a claim. The district court denied the motion to dismiss, reasoning that New Mexico’s three-year statute of limitations applied to the Allen Plaintiffs’ state-law claims. The district court certified the issue for interlocutory appeal. The Tenth Circuit held that the district court had to apply the point source state’s statute of limitations to state law claims preserved under the CWA. Judgment was reversed and the matter remanded for further proceedings. View "Allen, Jr., et al. v. Environmental Restoration" on Justia Law

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The Georgia Supreme Court granted certiorari in this case to decide whether E. Howard Carson acquired a vested right to develop property in a particular manner based upon alleged assurances made to him by Tom Brown, the Forsyth County Planning Director. Carson was the principal for Red Bull Holdings II, LLC, the property owner in this case. In 2016, Carson met with Brown and discussed Carson’s plans to purchase approximately 17 acres of land and develop that property into 42 separate 9,000- square-foot residential lots. In his role as Planning Director, Brown was allowed to interpret the zoning code; however, he could not unilaterally promise or authorize the issuance of a building permit. The record further showed that Carson knew prior to that meeting that the zoning code allowed for 9,000-square-foot lots. During the meeting, Carson showed Brown a hand-drawn document depicting Carson’s proposed subdivision layout, and asked Brown to confirm whether the current zoning code allowed for his proposed development. Brown made no representations as to future zoning code changes that might impact the property, nor did he guarantee that Carson would be able to build as he proposed. Carson purchased the property and spent money obtaining the various plans and appraisals necessary to begin development. Then, in August 2016, the Forsyth County Board of Commissioners “imposed a moratorium on the acceptance of applications for land disturbance permits” for 9,000 -square-foot residential lots. Based on the record before the Supreme Court, it concluded Carson did not acquire a vested right; therefore, the decision of the Court of Appeals holding to the contrary was reversed. The case was remanded with direction. View "Brown, et al. v. Carson, et al." on Justia Law

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Brenda and Gene Sauvageau petitioned the North Dakota Supreme Court to exercise its original jurisdiction and issue a writ of supervision directing the district court to stop the Cass County Joint Water Resource District from using quick take eminent domain to acquire their property. The Sauvageaus claimed the District was prohibited from using quick take eminent domain to acquire a permanent right of way easement over their entire property. The Supreme Court concluded the quick take process was not available because the District is taking more than a right of way in the Sauvageaus’ property. The Court granted the Sauvageaus’ petition, directed the district court to vacate its order denying the Sauvageaus’ motion to dismiss the District’s complaint and remanded for further proceedings. View "Sauvageau, et al. v. Bailey, et al." on Justia Law

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Appellants Patrick and Pamela Lutz (“Homeowners”) owned a single-family, detached home on a half-acre lot along Kesslersville Road in Plainfield Township, Northampton County, Pennsylvania. The property was located in a farm and forest district under the township’s zoning code. Single-family dwellings were permitted in that district but, per the zoning code, they are subject to setback requirements. Homeowners decided to add onto the back of their home. The design called for an addition to extend to the building envelope in the back: to 50 feet shy of the rear property line, with a raised, covered deck extending 18 feet into the rear setback area. When Homeowners submitted their plan to the township for approval, the zoning officer sent them written notice that the deck would not be allowed because it intruded into 50-foot setback area. He observed Homeowners could seek relief from the zoning hearing board (the “Board”) in the form of a dimensional variance. The Pennsylvania Supreme Court allowed appeal to consider whether the Commonwealth Court correctly applied its standard of appellate review relative to the grant of a dimensional zoning variance. The Pennsylvania Supreme Court was evenly divided; by operation of law, the Commonwealth Court’s judgment was thus affirmed. View "Kneebone v. Lutz" on Justia Law

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Fraser Township filed a complaint against Harvey and Ruth Ann Haney, seeking a permanent injunction to enforce its zoning ordinance and to prevent defendants from raising on their commercially zoned property, hogs or other animals that would violate the zoning ordinance, to remove an allegedly nonconforming fence, and to plow and coat the ground with nontoxic material. Defendants brought a hog onto their property as early as 2006, and defendants maintained hogs on their property through the time this lawsuit was filed in 2016. Defendants moved for summary disposition, arguing that plaintiff’s claim was time-barred by the six-year statutory period of limitations in MCL 600.5813. The trial court denied the motion, concluding that because the case was an action in rem, the statute of limitations did not apply. The Court of Appeal reversed, finding that the statute of limitations applied. Finding that the appellate court erred in concluding the statute of limitations applied, the Michigan Supreme Court reversed and reinstated the trial court's order denying defendants' motion for summary judgment. View "Township of Fraser v. Haney" on Justia Law