Planning & Environmental Law

Volume 63 • 2011

Judicial Decisions: Subject Index

The case abstracts are listed by common subject names. Some cases may be found in multiple subject categories.


A | B | C | D | E | F | G | H | I | J | K | L | M |  N | O | P | Q | R | S | T | U | V | W | Y | Z


A

ACCESSORY USES

Use of property as a boat ramp for neighboring lots is not an accessory use because there is no residential use of the lot containing the ramp (Ga. App. 2010) 63 PEL 1

Storage of personal property is not an accessory use on a residential lot that does not contain a residence (Ohio App. 2010) 63 PEL 86

Camping is not a use accessory to an airport (Pa. App. 2011) 63 PEL 202

School's plan to allow public use of indoor tennis courts for a fee, outside of school hours, does not transform facility into a business use (N.Y. App. 2011) 63 PEL 269

ADULT USES

Adult entertainment business failed to cast direct doubt on county's evidence that adult entertainment code was reasonably designed to reduce secondary effects (U.S. App., 11th Cir. 2011) 63 PEL 125

Amendment of adult use ordinances while appeal was pending rendered appeal moot (U.S. App., 11th Cir. 2011) 63 PEL 203

Consent judgment allowing existing adult business to operate, subject to conditions, did not include a right to relocate within same building (N.J. App. 2011) 63 PEL 243

In evaluating constitutionality of adult use law amendment, court must compare characteristics of businesses studied to justify original law to those of establishments targeted by amendment (N.Y. App. 2011) 63 PEL 244

In denying application for adult use board improperly focused on uses in neighborhood, rather than on uses permitted by ordinance (Ohio App. 2011) 63 PEL 284

Ordinances including buffering and licensing requirements for adult uses were licensing, not zoning, laws (Ind. App. 2011) 63 PEL 314

AESTHETICS

Evidence did not support denial of permission to construct walkway, at marsh level and without handrails, on the ground that it would obstruct views (S.C. 2011) 63 PEL 315

AGRICULTURE

Owner of organic crop, damaged by pesticide drift, may pursue common-law claims despite determination that application complied with regulatory scheme (Cal. App. 2010) 63 PEL 93

Electric utility company may assert comparative negligence defense in claim for damages alleging nuisance as a result of stray voltage (Iowa 2010) 63 PEL 111

Ninth Circuit reverses ordered destruction of Roundup Ready sugar beet plants (U.S. App., 9th Cir. 2011) 63 PEL 163

U.S. Environmental Protection Agency cannot require a concentrated animal feeding operation to apply for a National Pollutant Discharge Elimination System permit based on "proposing" to discharge pollutants (U.S. App., 5th Cir. 2011) 63 PEL 204

Overlay district for land containing prime agricultural soil, prohibiting development of three-quarters of land zoned for commercial, industrial, or multifamily use, is invalid (Pa. App. 2011) 63 PEL 205

Ordinance purporting to govern subdivision of agricultural land is preempted by state law (Ky. 2011) 63 PEL 245

Structures used in production and sale of wine are exempt from township zoning as agricultural uses (Ohio App. 2011) 63 PEL 285

Right to Farm Act does not preclude all local regulation of agricultural operations (Fla. App. 2011) 63 PEL 316

Cooperative may be liable for overspray drift to organic farm fields (Minn. App. 2011) 63 PEL 354

Agricultural exemption from township zoning does not require that viticulture be the primary use of property engaged in vinting and selling wine (Ohio 2011) 63 PEL 355

Amendments to conditional use permit for feedlot were reasonable in light of previous violations (Minn. App. 2011) 63 PEL 393

Challenge to approval of trail, as conflicting with state policy favoring agricultural uses, was untimely (Wash. App. 2011) 63 PEL 414

AIRPORT/AIR RIGHTS

Period for challenging height and use restrictions began to run upon enactment, not upon actual physical invasion of airspace by flights (Nev. 2010) 63 PEL 22

Minnesota Constitution prohibits "damage to private property for public use," which includes "substantial and measureable decline in market value" (Minn. App. 2010) 63 PEL 61

Camping is not a use accessory to an airport (Pa. App. 2011) 63 PEL 202

Extension of airport safety zone, resulting in diminishment of property value, required compensation under Minnesota Constitution (Minn. 2011) 63 PEL 224

Federal Aviation Administration permits for modernization of airport near historic sites did not violate Department of Transportation Act, National Historic Preservation Act, or National Environmental Policy Act (U.S. App., 1st Cir. 2011) 63 PEL 356

With respect to land within one mile of Johnson County Airport, both city and county are zoning authorities and exercise independent discretion (Kan. 2011) 63 PEL 394

ANNEXATION

Prior rejection of annexation by referendum did not bar approval of subsequent petition (Ohio App. 2010) 63 PEL 87

City of Horn Lake's bid to annex territory was unreasonable (Miss. 2011) 63 PEL 206

Third parties lack standing to challenge "100 percent consent" annexation based on lack of consent by the state as owner of affected property (S.C. 2011) 63 PEL 207

Statutory scheme does not provide for judicial review of Category A annexations (Idaho 2011) 63 PEL 317

Owners of annexed territory may not bring declaratory judgment action; remonstrance action requires signatures of 65 percent of owners of both taxable and tax-exempt property (Ind. App. 2011) 63 PEL 318

Annexation of the sites cannot operate to retroactively divest the companies of vested rights to construct billboards (Ga. 2011) 63 PEL 350

ATTORNEY FEES

Statutory provision for attorney fee awards against agencies does not permit court to award fees on appeal (Idaho 2010) 63 PEL 2

Issue of non-attorney representation of environmental group was not frivolous and did not merit award of attorney fees (Wash.2010) 63 PEL 45

Attorney fees and costs awarded under the Religious Land Use and Institutionalized Persons Act do not include amounts related to publicity (U.S. Dist., N.D. Ill. 2011) 63 PEL 208

Calculation for entitlement to award of attorney and witness fees should include prejudgment interest on condemnation award (S.D. 2011) 63 PEL 286

AUTOMATIC GRANT/DENIAL

City council is without authority to determine that nonconforming use with respect to parking had terminated (Pa. App. 2010) 63 PEL 27

B

BUILDING PERMITS

Building permit application filed in 2004 was complete, as a matter of law, and vested development rights (Wash. App. 2010) 63 PEL 44

C

CIVIL RIGHTS

Metropolitan Transportation Commission funding decisions did not have a disparate impact on minority riders (U.S. App., 9th Cir. 2011) 63 PEL 196

COASTAL AND WETLAND REGULATION

Easement that existed seaward of the vegetation line does not "roll" onto private property as a result of avulsion caused by hurricane (Tex. 2010) 63 PEL 3

Coastal development permit is not exempt from coastal commission review under nuisance abatement exception (Cal App. 2011) 63 PEL 319

COMPREHENSIVE PLANS

City's desire to provide targeted industries with a choice of industrial sites is insufficient to show consistency of expansion of urban growth boundary with state planning goals (Or. App. 2010) 63 PEL 12

Compliance of city urban growth area with population projections in joint plan cannot be challenged under Growth Management Act because city's comprehensive plan was found to be compliant (Court of Appeals of Washington 2010) 63 PEL 13

County's approvals for liquefied natural gas terminal and pipeline were inconsistent with its comprehensive plan (Or. App. 2010) 63 PEL 47

Approval of conditional use permit for residence and event center on five acres in transitional district was not arbitrary (Idaho 2010) 63 PEL 88

Environmental impact report for senior center in park did not adequately explore alternative sites; permit violated plan by allowing high-intensity use in low-intensity recreation district (Cal. App. 2010) 63 PEL 96

Growth management hearings board had jurisdiction to consider whether comprehensive plan amendment to permit expansion of business complied with Growth Management Act (Wash. App. 2011) 63 PEL 126

Site characteristics "necessary" for industrial and employment uses include attributes "typical" of the use that have "meaningful connection with the operation" (Or. App. 2011) 63 PEL 165

Plan for future configuration of roadways provides adequate notice of possible changes, supports town goals, and is valid (Conn. Trial 2011) 63 PEL 223

Subdivision plan must comply with both comprehensive plan and zoning ordinance; city correctly denied application that did not meet lower density goals of plan (R.I. 2011) 63 PEL 287

Approval of planned unit development was consistent with comprehensive plan and supported by the record (Wash. App. 2011) 63 PEL 288

Extensive changes to conform zoning ordinance to comprehensive plan did not require individual notice (R.I. 2011) 63 PEL 306

Council need not provide a verbatim transcript of hearing reciting reasons for enactment of ordinance inconsistent with master plan (N.J. App. 2011) 63 PEL 320

Environmental impact report is deficient in failing to consider interim traffic impacts and environmental impacts of additions at existing schools to accommodate students pending construction of on-site schools (Cal. App. 2011) 63 PEL 329

Substantial evidence supported findings that rezoning was not needed, would be inappropriate due to deficient infrastructure, and would be inconsistent with comprehensive plan (Wash. 2011) 63 PEL 343

Exception, allowing mining on agricultural land "only to support" public roadway projects, does not apply to mine that would sell aggregate on open market (Fla. App. 2011) 63 PEL 357

Denial of proposal to amend 1991 subdivision plan was justified by inconsistency with master plan (Md. App. 2011) 63 PEL 384

Because municipalities are not required to conform zoning to plan adopted under Highlands Water Protection and Planning Act, challenge to plan was premature (N.J. App. 2011) 63 PEL 395

Regional plan transfer of development rights program need not strictly conform to goals of state Transfer of Development Rights Act (N.J. App. 2011) 63 PEL 396

CONDITIONAL USES

Planning commission appropriately considers the Religious Land Use and Institutionalized Persons Act in determining that Hebrew Academy was in substantial compliance with conditional use permit and modifying conditions in religious-neutral manner (Cal. App. 2010) 63 PEL 35

Requirements that religious school obtain a conditional use permit and comply with the California Environmental Quality Act before operating in residential district does not violate the Religious Land Use and Institutionalized Persons Act (Court of Appeal of California 2010) 63 PEL 36

Commission reasonably balanced interests in granting conditional use permit for expansion of electrical substation in residential district (Kan. App. 2010) 63 PEL 48

Approval of conditional use permit for residence and event center on five acres in transitional district was not arbitrary (Idaho 2010) 63 PEL 88

Conditional planned commercial development approval for Wal-Mart did not require identification of specific uses (Pa. App. 2011) 63 PEL 209

Denial of conditional use permit for group home was quasi-judicial, not legislative, in nature (Ark. 2011) 63 PEL 227

Developer had no property interest in conditional use permit and, therefore, no claim for denial of due process (Minn. App. 2011) 63 PEL 246

Substantial evidence supported denial of conditional use permit for downtown business district development to include condominium units and hotel units (Wis. App. 2011) 63 PEL 358

Amendments to conditional use permit for feedlot were reasonable in light of previous violations (Minn. App. 2011) 63 PEL 393

CONDOMINIUMS AND COOPS

Condominium association is required to accommodate disabled residents' parking needs regardless of local law concerning common elements (U.S. App., 1st Cir. 2010) 63 PEL 4

CONFLICTS OF INTEREST

Borough president violated state ethics law by signing off on plans for a restaurant, knowing his company would be involved in construction (Pa. App. 2011) 63 PEL 210

Chair's participation after making statements evidencing deep antagonism for project opponents violated due process, but violation was cured by trial de novo (Vt. 2011) 63 PEL 397

CONSTITUTIONAL LAW, DUE PROCESS

Developer is afforded due process in designation of property for "special list," allowing Commission for Historical and Architectural Preservation to delay permit issuance (Md. App. 2010) 63 PEL 14

Developer had no property interest in conditional use permit and, therefore, no claim for denial of due process (Minn. App. 2011) 63 PEL 246

Objectors were not deprived of due process by agency's failure to give notice of on-site testing or settlement meetings during wetlands investigations (N.J. App. 2011) 63 PEL 247

Application of subsequently enacted stormwater ordinance to subdivision did not constitute a taking or violate due process (U.S. Dist., D. W.Va. 2011) 63 PEL 281

Developer cannot bring due process claims against Advisory Commission on Historical Cemeteries following denial of approval (R.I. 2011) 63 PEL 321

City's requirement of aggrievement to appeal permit decision did not deny resident's constitutional rights (Alaska 2011) 63 PEL 346

Imposing the burden of proof on the owner and applying rules of evidence, of which owner was not advised, violated owner's due process rights at code violation hearing (S.D. 2011) 63 PEL 398

CONSTITUTIONAL LAW, EQUAL PROTECTION

Company that had a grandfathered right is not a valid comparator in a "class of one" equal protection claim challenging denial of a variance (U.S. App., 2nd Cir. 2010) 63 PEL 98

Holding that denial of certificate of appropriateness was supported by substantial evidence does not bar equal protection claim (Fla. App. 2011) 63 PEL 211

City's requirement of aggrievement to appeal permit decision did not deny resident's constitutional rights (Alaska 2011) 63 PEL 346

Denial of special use permit for cluster development did not violate applicants' equal protection rights (U.S. App., 6th Cir. 2011) 63 PEL 418

CONSTITUTIONAL LAW, FIRST AMENDMENT

Act of tattooing is purely expressive and protected by First Amendment (U.S. App., 9th Cir. 2010) 63 PEL 5

Federal ownership of a site incorporating a 43-foot-tall Latin cross and war memorial violates the Establishment Clause of the First Amendment to the U.S. Constitution (U.S. App., 9th Cir. 2010) 63 PEL 99

Tenth Circuit denies rehearing of case in which it held that memorial crosses erected on public property violated Establishment Clause (U.S. App., 10th Cir. 2010) 63 PEL 100

Sign ordinance, prohibiting or limiting window signs by area, is constitutional (Mich. App. 2011) 63 PEL 417

COVENANTS AND CONDITIONS

Subdivisions created from estate of single owner were not part of common scheme of development, so abandonment of restrictions in one area did not amount to abandonment in other development (Conn. App. 2011) 63 PEL 156

D

DAMAGE

Relocation Assistance Act does not provide for awards of interest on amounts claimed outside of condemnation cases (Wash. 2011) 63 PEL 164

DEDICATIONS AND FEES

Sewer and water system capital recovery fees, assessed on a per unit basis, are valid (Ala. 2010) 63 PEL 6

Ordinance requiring dedication of conservation easements to mitigate loss of farmland is valid (Cal. App. 2010) 63 PEL 49

Developer's overpayment of tap-in fee based on city's calculation was not an unrefundable voluntary overpayment (Ind. App. 2010) 63 PEL 50

City may not seek enforcement of condition requiring donation of seven units in developer's action challenging city's interpretation of development agreement (N.J. App. 2010) 63 PEL 51

Traffic mitigation fee satisfied statute although level of service failure will occur even without development, and city plans to make improvements regardless of development (Court of Appeals of Washington 2011) 63 PEL 248

Condition requiring dedication of open space exceeded authority of board (Mass. App. 2011) 63 PEL 289

Requiring developer to pay sewer use benefit fee, assessed to all district property, would be an unconstitutional taking where developer already paid a fee to the city that actually serves the property (Ohio App. 2011) 63 PEL 290

Assessment for construction of regional recreation trail is invalid (Wis. App. 2011) 63 PEL 291

Low and Moderate Income Housing Act does not authorize imposition of a fee in lieu of affordable housing required by local ordinance (R.I. 2011) 63 PEL 359

Public housing authority's agreement to make payments in lieu of taxes precludes town's assessment of fees for new sewer service users to pay for expansion of the town's sewerage system plant (Conn. App. 2011) 63 PEL 399

City's failure to enforce ordinance, conditioning subdivision approval on developer making improvements, does not deprive it of authority to impose assessment to pay for improvements (Iowa 2011) 63 PEL 400

DEFINITIONS

Determination that motorcycle track meets definition of recreational use is reasonable (N.Y. App. 2010) 63 PEL 7

Wrestling school, to be operated in a pole barn on residential property, is a home occupation (N.J. App. 2010) 63 PEL 52

Construction of roof over restaurant patio, as part of renovation, did not require land development approval (Pa. App. 2010) 63 PEL 53

Motocross track, built on rural residential land for use by owners and friends, is a "de minimis incidental use of property" that does not require a permit (Vt. 2011) 63 PEL 127

Site characteristics "necessary" for industrial and employment uses include attributes "typical" of the use that have "meaningful connection with the operation" (Or. App. 2011) 63 PEL 165

Mobile home is a structure and requires a permit, even if unoccupied, on wheels, and not connected to utilities or plumbing (Me. 2011) 63 PEL 322

DUE PROCESS

Zoning laws enacted in 1968 and 1990 were not void due to procedural defects (Pa. App. 2010) 63 PEL 54

E

EASEMENTS

Easement that existed seaward of the vegetation line does not "roll" onto private property as a result of avulsion caused by hurricane (Tex. 2010) 63 PEL 3

ECONOMIC DEVELOPMENT

City's desire to provide targeted industries with a choice of industrial sites is insufficient to show consistency of expansion of urban growth boundary with state planning goals (Or. App. 2010) 63 PEL 12

EMINENT DOMAIN

Contaminated property should be valued "as remediated" in condemnation action, without consideration of the cost of remediation (Minn. 2010) 63 PEL 8

Owner's denial of allegations of blight was insufficient to establish pretext of public purpose (D.C. App. 2010) 63 PEL 55

Public purpose for condemnation was not pretext, although county had agreed to condemn property as needed for bypass to be constructed by developer (Haw. 2010) 63 PEL 56

Court rehearing en banc reverses earlier holding and affirms trial court decision that a newly incorporated city's adoption of previously existing rent control ordinance is not a taking (U.S. App., 9th Cir. 2010) 63 PEL 89

City owed no damages for condemnation of system connecting development to municipal sewer lines (Mass. App. 2011) 63 PEL 128

Relocation Assistance Act does not provide for awards of interest on amounts claimed outside of condemnation cases (Wash. 2011) 63 PEL 164

Developer, not a party to condemnation of land for completion of road, is not liable for cost of condemned land in connection with liability for cost of road improvements (Tenn. App. 2011) 63 PEL 166

Federal Circuit vacates dismissal of takings and contract claims relating to temporary reduction in water from Klamath Irrigation Project (U.S. App., Fed. Cir. 2011) 63 PEL 201

Tenant is entitled to compensation for condemnation of leasehold, regardless of lease clause, where redeveloper-landlord's interest will not change ownership (N.J. App. 2011) 63 PEL 233

Amendment of redevelopment plan to reauthorize use of eminent domain was not justified by evidence that significant blight remains (Cal. Trial 2011) 63 PEL 249

Statute providing that fair market value is established as of the date of filing a complaint is unconstitutional as applied to condemnation of private utilities (Miss. 2011) 63 PEL 250

Calculation for entitlement to award of attorney and witness fees should include prejudgment interest on condemnation award (S.D. 2011) 63 PEL 286

Utility company is not entitled to damages for relocating building in anticipation of taking (Mass. 2011) 63 PEL 292

Whether condemnation to create private access is unconstitutional depends on whether property became landlocked as a result of state action (Pa. App. 2011) 63 PEL 293

Owners who appealed condemnation price for easement, negotiated under "agreed price" statute, are entitled to litigation expenses (Wis. 2011) 63 PEL 294

Village may abandon condemnation after filing settlement agreements with owners but before taking possession (Ill. App. 2011) 63 PEL 323

Electric utility has power of eminent domain (Mont. 2011) 63 PEL 324

City did not abuse process in appropriating additional easement after inadvertently building water pumping station over boundary of existing easement (Ohio App. 2011) 63 PEL 325

Foreign corporation must establish status as a pipeline company in order to condemn easement (Okla. 2011) 63 PEL 326

Valuation of substandard nonconforming retail building by deducting cost of renovation from value of the building as renovated was error (N.J. App. 2011) 63 PEL 360

Court properly admitted "cost to cure" evidence in valuing restriction on vehicle access to hotel (Or. App. 2011) 63 PEL 361

Second-class township lacked condemnation authority for relocation of drainage canal (Pa. App. 2011) 63 PEL 362

Statute authorizing condemnation for construction of roads to access "mineral deposits" does not encompass condemnation to reach oil and gas deposits (Utah 2011) 63 PEL 363

Condemnation to establish new access road for a single parcel, necessitated by road widening, served a public purpose and was necessary to the project (Minn. 2011) 63 PEL 401

ENERGY

Court rejects challenges to U.S. Environmental Protection Agency 2010 final rule, "Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standards Program" (U.S. App., D.C. 2010) 63 PEL 90

Department of Energy designation of national interest transmission corridors is vacated for failure to consult with affected states and failure to comply with the National Environmental Policy Act (U.S. App. 9th Cir. 2011) 63 PEL 129

Evidence supported approval of 22-turbine wind farm (Me. 2011) 63 PEL 212

Court declines to enjoin approval of Spring Valley Wind Energy Facility (U.S. Dist., Nev. 2011) 63 PEL 213

Commission correctly declined to consider traffic concerns in determining "public interest" for purposes of approving injection well (Tex. 2011) 63 PEL 214

Federal court rejects suit challenging Federal Housing Finance Agency actions with respect to municipal Property Assessed Clean Energy loan programs (U.S. Dist., E.D. N.Y. 2011) 63 PEL 327

ENFORCEMENT

Court is not barred from enjoining code violations for having convicted owner of one of the violations three years earlier and imposed a fine (Mich. App. 2010) 63 PEL 91

ENVIRONMENT

Court rejects challenges to U.S. Environmental Protection Agency 2010 final rule, "Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standards Program" (U.S. App., D.C. 2010) 63 PEL 90

U.S. Fish and Wildlife Service failed to adequately analyze necessity for water structures to stabilize population of bighorn sheep in Sonoran Desert wilderness (U.S. App., 9th Cir. 2010) 63 PEL 92

Owner of organic crop, damaged by pesticide drift, may pursue common-law claims despite determination that application complied with regulatory scheme (Cal. App. 2010) 63 PEL 93

Action for costs, brought 12 years after consent decree under the Comprehensive Environmental Response, Compensation, and Liability Act, is not barred by statute of limitations (U.S. Dist., N.H. 2010) 63 PEL 94

Owner of property primarily in closed basins that do not discharge rainwater to lake is not subject to special provisions intended to protect lake from runoff (Fla. App. 2010) 63 PEL 122

Court denies injunction to require all available measures to prevent migration of Asian carp from Illinois waterways to Lake Michigan (U.S. Dist., N.D. Ill. 2010) 63 PEL 123

Biological Opinion for operation of Leavenworth National Fish Hatchery did not adequately justify conclusion of "no jeopardy" to bull trout (U.S. App., 9th Cir. 2010) 63 PEL 124

Disapproval of parts of updated state implementation plan for attainment of National Ambient Air Quality Standards required the U.S. Environmental Protection Agency to evaluate existing plan as a whole (U.S. App., 9th Cir. 2011) 63 PEL 130

Endangered Species Act reference to "areas under Federal jurisdiction" does not include privately held land including wetlands subject to Clean Water Act (U.S. App., 9th Cir. 2011) 63 PEL 131

Court grants one-month extension on deadline for U.S. Environmental Protection Agency's promulgation of hazardous air pollutant rules (U.S. Dist., D.D.C. 2011) 63 PEL 132

State is not precluded from recovering damages related to contamination of private wells by gasoline additive (N.H. 2011) 63 PEL 133

U.S. Environmental Protection Agency's "enhanced coordination process" for §§ 402 and 404 permits adopts a new position, likely in violation of notice and comment requirements (U.S. Dist., D.D.C. 2011) 63 PEL 144

Court upholds amendments to West Virginia surface mining control and reclamation program (U.S. Dist., S.D.,W.Va. 2011) 63 PEL 145

Governor lacked authority to delay publication of regulation adopted by Environmental Improvement Board (N.M. 2011) 63 PEL 167

Texas challenge to U.S. Environmental Protection Agency's call for revision of state implementation plan to comply with greenhouse gas rules is transferred to D.C. Circuit (U.S. App., 5th Cir. 2011) 63 PEL 168

Biological opinion by National Marine Fisheries Service is subject to direct review in federal trial court (U.S. App., 4th Cir. 2011) 63 PEL 176

Court rejects challenges to adaptive management changes to the Interagency Bison Management Plan for Yellowstone herd (U.S. Dist., D. Mont. 2011) 63 PEL 184

Commission correctly declined to consider traffic concerns in determining "public interest" for purposes of approving injection well (Tex. 2011) 63 PEL 214

Department of Environmental Conservation improperly excluded contaminated site from brownfields cleanup program (N.Y. Trial 2011) 63 PEL 234

Runoff and impervious surface regulations intended to "minimize" effects on critical areas did not "protect" those areas as required by Growth Management Act (Wash. App. 2011) 63 PEL 328

Legislation authorizing U.S. Environmental Protection Agency to regulate greenhouse gases displaces any possible federal common-law nuisance suits concerning such emissions (U.S. 2011) 63 PEL 337

ENVIRONMENTAL IMPACT STATEMENTS

The California Environmental Quality Act categorical exemption for infill development "within city limits" does not extend to heavily urbanized areas outside the city (Cal. App. 2009 2010) 63 PEL 9

Environmental impact statement prepared for amendment of plan for Superior National Forest adequately addressed impact on Boundary Waters Canoe Area Wilderness Area (U.S. App., 8th Cir. 2010) 63 PEL 10

Forest Service interpretation of elk cover requirements for Gallatin National Forest is "plainly erroneous" (U.S. App., 9th Cir. 2010) 63 PEL 11

Requirements that religious school obtain a conditional use permit and comply with the California Environmental Quality Act before operating in residential district does not violate the Religious Land Use and Institutionalized Persons Act (Court of Appeal of California 2010) 63 PEL 36

County was required to evaluate entire project, consisting of mining and reclamation on federal land, despite approval by the federal Bureau of Land Management under National Environmental Policy Act (Cal. App. 2010) 63 PEL 57

Environmental impact statement for 560-unit subdivision in Cherry Valley adequately addressed impacts on water and agricultural land use (Cal. App. 2010) 63 PEL 58

Environmental impact report, analyzing impacts of road extension based on projected 2020 conditions, violated California Environmental Quality Act (Cal. App. 2010) 63 PEL 95

Environmental impact report for senior center in park did not adequately explore alternative sites; permit violated plan by allowing high-intensity use in low-intensity recreation district (Cal. App. 2010) 63 PEL 96

Determination that proposed 75 million-gallon-per-year ethanol plant did not have potential for significant environmental effects and did not require an environmental impact statement was supported by record (Minn. App. 2010) 63 PEL 97

Approval of environmental impact statement for phosphate mining in Caribou National Forest did not violate the National Environmental Policy Act (U.S. App., 9th Cir. 2010) 63 PEL 106

Environmental impact statement for Minneapolis–St. Paul light rail adequately considered community cohesion, environmental justice, and gentrification issues, but not loss of business revenue (U.S. Dist., D. Minn. 2011) 63 PEL 134

Court enjoins logging in wildfire area after it is 49 percent complete (U.S. App., 9th Cir. 2011) 63 PEL 135

Environmental impact statement took required hard look at impacts of closing area to motor vehicles and closure did not violate Establishment Clause by favoring Native American religion (U.S. Dis., D. Mont. 2011) 63 PEL 136

Adequate consideration of threat of terrorist attack on power plant under National Environmental Policy Act does not require disclosure of sensitive information in closed session (U.S. App., 9th Cir. 2011) 63 PEL 169

City of Atwater's certification of an environmental impact report for new wastewater plant did not violate the California Environmental Quality Act (Cal. App. 2011) 63 PEL 215

Environmental impact report, concluding that preservation of potentially historic site was infeasible, complied with the California Environmental Quality Act (Cal. App. 2011) 63 PEL 216

Project, granted density bonus, height, and setback waivers for provision of affordable units, qualifies for a California Environmental Quality Act exemption for infill development that complies with "applicable" zoning regulations (Cal. App. 2011) 63 PEL 217

Comprehensive plan is invalid for violation of the State Environmental Quality Review Act where there was no reasoned elaboration for negative declaration (N.Y. App. 2011) 63 PEL 218

Town took required "hard look" at environmental impacts in approving Wal-Mart development on site of existing strip mall (N.Y. App. 2011) 63 PEL 219

Record supported determination of nonsignificance for improvements at solid waste disposal station (Wash. App. 2011) 63 PEL 220

Board took the required "hard look" at environmental impacts of development of 91 homes on 27.6 acres and determined that they had been mitigated (N.Y. App. 2011) 63 PEL 251

Baseline for environmental assessment of plan to replace causeways and bridges in national park is current condition, not condition that existed when highway was first built (U.S. Dist., D. S.C. 2011) 63 PEL 268

Approval of a detailed term sheet for development of a football stadium is not a project or project approval requiring an environmental impact report (Cal. App. 2011) 63 PEL 270

Environmental Impact Statement for Juneau Access Improvements Project failed to adequately explore reasonable alternatives (U.S. App., 9th Cir. 2011) 63 PEL 277

Court affirms categorical exemption finding for San Antonio interchange (U.S. Dist., W.D. Tex. 2011) 63 PEL 278

Environmental impact report is deficient in failing to consider interim traffic impacts and environmental impacts of additions at existing schools to accommodate students pending construction of on-site schools (Cal. App. 2011) 63 PEL 329

Failure to prepare a supplemental environmental impact statement after neighbors objected to final design of transit facility did not violate the National Environmental Policy Act (U.S. Dist., S.D.N.Y. 2011) 63 PEL 330

Conclusion that expansion of hospital campus would have significant unavoidable environmental impacts was supported by sufficient evidence and balanced by the project's benefits in compliance with the California Environmental Quality Act and the local development code (Cal. App. 2011) 63 PEL 364

Environmental impact report is not required to consider impact of the environment (existing sewage treatment plant) on proposed mixed use development (Cal. App. 2011) 63 PEL 365

Department of City Planning's rezoning of 128-block area was adequately supported by Environmental Assessment Statement, and no Environmental Impact Statement was required (N.Y. App. 2011) 63 PEL 402

ESTOPPEL

Owner reasonably relied on board resolution that project could proceed, despite change in law (Conn. 2011) 63 PEL 221

City is not estopped from enforcing zoning requirements based on employee's actions in providing permit applicant with an "as proposed" rather than "as built" survey (Minn. 2011) 63 PEL 295

F

FLOATING ZONES

Federal ownership of a site incorporating a 43-foot-tall Latin cross and war memorial violates the Establishment Clause of the First Amendment to the U.S. Constitution (U.S. App., 9th Cir. 2010) 63 PEL 99

FLOODPLAIN ZONING

Publication of notice of Federal Emergency Management Agency's proposed changes to base elevations did not provide constructive notice of change in classifications of property (La. App. 2010) 63 PEL 108

FOREST LANDS

Court invalidates exemption of Tongass National Forest from roadless rule (U.S. Dist., Alaska 2011) 63 PEL 222

G

GROWTH MANAGEMENT

City's desire to provide targeted industries with a choice of industrial sites is insufficient to show consistency of expansion of urban growth boundary with state planning goals (Or. App. 2010) 63 PEL 12

Compliance of city urban growth area with population projections in joint plan cannot be challenged under Growth Management Act because city's comprehensive plan was found to be compliant (Court of Appeals of Washington 2010) 63 PEL 13

City must "substantially comply" with its growth policy in making zoning decisions (Mont. 2011) 63 PEL 252

"Failure to plan" challenge to capital facilities plan mandated by Growth Management Act may be maintained only if relevant provision of act has been effectively amended (Wash. App. 2011) 63 PEL 253

In redesignation of "agricultural lands of long-term commercial significance" to "urban growth areas," the Western Washington Growth Management Hearings Review Board must consider parcel characteristics, including nearby development (Wash. App. 2011) 63 PEL 254

County may not approve developments absent letters from fire district indicating that adequate service will be available (Wash. 2011) 63 PEL 296

Restriction, applicable to a single 69-acre parcel and limiting that parcel to 20-acre lots, did not constitute spot zoning or violate equal protection rights (Cal. App. 2011) 63 PEL 366

Department of Environmental Protection erred in denying exemption from Highlands Water Protection and Planning Act (N.J. App. 2011) 63 PEL 367

Court identifies three-step process for adding land to urban growth boundary (Or. App. 2011) 63 PEL 368

County's comprehensive plan failed to adequately protect rural land (Wash. 2011) 63 PEL 369

Approval of 19-home subdivision was consistent with one percent growth objective for rural area (Md. App. 2011) 63 PEL 403

H

HIGHWAYS AND STREETS

Evidence was insufficient to establish the existence of a road created by prescriptive use (Kan. App. 2010) 63 PEL 59

Despite failure to strictly comply with recording act, road was established and was never vacated (Wyo. 2010) 63 PEL 60

Owner of lot subject to mapped, unbuilt street is not required to seek a variance; city's prior agreement that mapping was void with respect to another owner indicated that city had no plan to open street (N.Y. Trial 2010) 63 PEL 101

State does not have right to extend 70-foot-wide street outside curb lines noted on dedication map (Tex. App. 2010) 63 PEL 102

Utility company must pay for relocation of gas lines, located in public street easement, to accommodate road widening (Mo. App. 2011) 63 PEL 152

Relocation Assistance Act does not provide for awards of interest on amounts claimed outside of condemnation cases (Wash. 2011) 63 PEL 164

Developer, not a party to condemnation of land for completion of road, is not liable for cost of condemned land in connection with liability for cost of road improvements (Tenn. App. 2011) 63 PEL 166

Petition to establish road across state land, for access to landlocked parcel, is barred by sovereign immunity (Ark. 2011) 63 PEL 170

Trial court improperly enjoined county from conducting road abandonment hearing (Ga. 2011) 63 PEL 171

Right-of-way is a town highway, based on public use and town maintenance for statutory period (N.Y. App. 2011) 63 PEL 172

Court must focus on landowner's easement interests in determining whether realignment of access road resulted in a taking (S.C. 2011) 63 PEL 174

Plan for future configuration of roadways provides adequate notice of possible changes, supports town goals, and is valid (Conn. Trial 2011) 63 PEL 223

Developer, bound by unambiguous development agreement foreclosing access to state highway, did not present a justiciable controversy in challenging ordinance prohibiting such access (Idaho 2011) 63 PEL 297

Assessment for road paving, not wanted by residents, was consistent with legal principles (Iowa 2011) 63 PEL 310

Action to quiet title to platted, undeveloped roads, claiming adverse possession, need not be filed under Land Division Act (Mich. 2011) 63 PEL 331

Board of selectmen lacked jurisdiction to determine whether road had become public by prescription (N.H. 2011) 63 PEL 332

Vote to discontinue public road did not convert the road to a private road (N.H. 2011) 63 PEL 333

Highway widening, changing location of median crossovers so that business no longer enjoyed direct left-turn access, did not amount to a taking (S.C. 2011) 63 PEL 406

Gas company cannot be required to pay cost of relocating its lines within easement to accommodate county road widening (Mo. 2011) 63 PEL 413

HISTORIC PRESERVATION

Developer is afforded due process in designation of property for "special list," allowing Commission for Historical and Architectural Preservation to delay permit issuance (Md. App. 2010) 63 PEL 14

Minnesota Constitution prohibits "damage to private property for public use," which includes "substantial and measureable decline in market value" (Minn. App. 2010) 63 PEL 61

Property, always used as a commercial rental, is not eligible for exemption from landmark status as a noncommercial property owned by a religious association (Cal. App. 2010) 63 PEL 71

Association of French Quarter owners and residents failed to establish present or probable future harm to members sufficient for standing to seek injunction based on zoning (La. App. 2011) 63 PEL 137

Historic preservation commission's attempt to limit height was arbitrary, not based on preservation of vistas or incongruity with neighborhood (N.C. App. 2011) 63 PEL 255

Review board should defer to expertise of historical commission, charged with policy decisions, in interpreting terms such as "alteration" and "demolition in significant part" (Pa. App. 2011) 63 PEL 256

Federal Aviation Administration permits for modernization of airport near historic sites did not violate Department of Transportation Act, National Historic Preservation Act, or National Environmental Policy Act (U.S. App., 1st Cir. 2011) 63 PEL 356

Historic preservation commission requirement to remove new fiberglass columns was reasonable and adequately supported by the record (Md. App. 2011) 63 PEL 404

HOME OCCUPATIONS

Wrestling school, to be operated in a pole barn on residential property, is a home occupation (N.J. App. 2010) 63 PEL 52

HOUSING

Denial of proposal for affordable housing is not supported by findings showing that public interest concerns outweigh need for housing (Conn. App. 2010) 63 PEL 15

Court declines to dismiss Fair Housing Act claims concerning allocation of grants for repair and rebuilding in areas damaged by Hurricanes Katrina and Rita (U.S. Dist., D.C. 2010) 63 PEL 16

Appellate court invalidates revised "third round" of Council on Affordable Housing "fair share" rules (N.J. App. 2010) 63 PEL 17

City employees, the mayor, and council members are immune from suit based on city's sale of homeless shelter to religious organization (U.S. App., 9th Cir. 2010) 63 PEL 19

Ordinances regulating employment and rental housing, including penalties for employment or housing of undocumented aliens, are preempted by Federal Immigration Reform and Control Act (U.S. App., 3rd Cir. 2010) 63 PEL 30

Board improperly denied comprehensive permit for mixed income development based on concern about fundability (Mass. App. 2011) 63 PEL 257

Owner of property rezoned while plans for affordable housing were pending presented adequate evidence of bad faith to avoid summary judgment (La. App. 2011) 63 PEL 273

Federal court rejects suit challenging Federal Housing Finance Agency actions with respect to municipal Property Assessed Clean Energy loan programs (U.S. Dist., E.D. N.Y. 2011) 63 PEL 327

Low and Moderate Income Housing Act does not authorize imposition of a fee in lieu of affordable housing required by local ordinance (R.I. 2011) 63 PEL 359

Denial of applications for affordable housing construction was not supported by evidence of insufficient access or of new environmental concerns (Conn. App. 2011) 63 PEL 370

Court declines to impose deadline on Council on Affordable Housing adoption of revised third-round rules (N.J. App. 2011) 63 PEL 371

I

IMMUNITY

City is not liable for officials' interpretation of ordinance as prohibiting reconstruction of signs damaged by hurricane (Ala. App. 2018 2010) 63 PEL 18

City employees, the mayor, and council members are immune from suit based on city's sale of homeless shelter to religious organization (U.S. App., 9th Cir. 2010) 63 PEL 19

Appointed members of watershed district board have qualified immunity, not absolute privilege (Minn. 2010) 63 PEL 20

County is not immune from liability for assessments on lots acquired for nonpayment of taxes (Tenn. App. 2010) 63 PEL 21

INITIATIVES AND REFERENDA

Changes to development agreement are not proper subject for referendum (Fla. App. 2010) 63 PEL 103

Denial of proposed amendment to zoning code is not subject to referendum (S.D. 2011) 63 PEL 138

INTERGOVERNMENTAL CONFLICT

Easement that existed seaward of the vegetation line does not "roll" onto private property as a result of avulsion caused by hurricane (Tex. 2010) 63 PEL 3

Massachusetts Highway Department may be subject to local health regulations with respect to operation of salt shed (Mass. 2010) 63 PEL 104

Eleventh Circuit remands decisions concerning U.S. Army Corps of Engineers operation of Buford Dam and Lake Lanier and denial of Georgia's request for additional water allocations (U.S. App., 11th Cir. 2011) 63 PEL 391

With respect to land within one mile of Johnson County Airport, both city and county are zoning authorities and exercise independent discretion (Kan. 2011) 63 PEL 394

Public housing authority's agreement to make payments in lieu of taxes precludes town's assessment of fees for new sewer service users to pay for expansion of the town's sewerage system plant (Conn. App. 2011) 63 PEL 399

INVERSE CONDEMNATION

Period for challenging height and use restrictions began to run upon enactment, not upon actual physical invasion of airspace by flights (Nev. 2010) 63 PEL 22

Minnesota Constitution prohibits "damage to private property for public use," which includes "substantial and measureable decline in market value" (Minn. App. 2010) 63 PEL 61

County's refusal to honor Measure 37 waivers after enactment of Measure 49 did not amount to a taking or breach of contract (Or. App. 2010) 63 PEL 139

Equal protection and First Amendment claims, based on enactment of Measure 49, are rejected (Or. App. 2011) 63 PEL 140

Rescission of nontransferable commercial zoning did not violate constitutional rights of owner or amount to a taking (U.S. App., 7th Cir. 2011) 63 PEL 141

Damage to home, resulting from city's routine cleaning of sewer lines, constitutes a taking (Or. App. 2011) 63 PEL 173

Court must focus on landowner's easement interests in determining whether realignment of access road resulted in a taking (S.C. 2011) 63 PEL 174

Landowner is not entitled to develop town houses on property zoned for rural agricultural use and was not denied due process (U.S. App. 4th Cir. 2011) 63 PEL 175

Notice of claim, filed under the name of sole shareholder of the limited liability company that owns property, is inadequate to satisfy statutory requirement of notice by owner (Ariz. App. 2011) 63 PEL 182

Extension of airport safety zone, resulting in diminishment of property value, required compensation under Minnesota Constitution (Minn. 2011) 63 PEL 224

Mandamus action was appropriate to require city to condemn drainage easement damaged by its actions (Ohio App. 2011) 63 PEL 225

Demolition of building deemed to be a nuisance did not violate owner's constitutional rights or constitute a taking (Va. App. 2011) 63 PEL 226

Temporary flooding as a result of operation of dam, which is not inevitably recurring, does not amount to a taking (U.S. App., Fed. Cir. 2011) 63 PEL 241

Holders of water use priorities were not deprived of property by state order to cease using wells pending entry of a plan for augmentation (Colo. 2011) 63 PEL 242

City is not liable for inverse condemnation on a theory of precondemnation blight based on its acquisition of properties near airport without any plan for those properties (Cal. App. 2011) 63 PEL 258

Diminution in value did not establish de facto taking (N.Y. App. 2011) 63 PEL 259

City's rehabilitation of stormwater outfall facility adjoining residential property did not cause a taking (Wash. App. 2011) 63 PEL 260

Application of subsequently enacted stormwater ordinance to subdivision did not constitute a taking or violate due process (U.S. Dist., D. W.Va. 2011) 63 PEL 281

Availability of claim for reverse condemnation does not preclude actions such as fraud or nuisance (Ky. App. 2011) 63 PEL 298

Inverse condemnation action, based on city issuing a stop-work order on installation of LED display without a permit, was not ripe (Tex. App. 2011) 63 PEL 307

Local agency's determination of nuisance cannot serve as res judicata to bar takings claims (Tex. 2011) 63 PEL 334

Governmental entities were entitled to "design immunity" on claims of nuisance and dangerous conditions relating to bluff erosion resulting from projects, but are liable for inverse condemnation (Cal. App. 2011) 63 PEL 372

Owner's claim of de facto taking, based on installation and maintenance of drainage pipe, was speculative and premature (Pa. App. 2011) 63 PEL 373

City, acting under a claim of title and not in exercise of sovereign powers, did not have intent requisite to establish a taking (Tex. App. 2011) 63 PEL 374

Owners of land allegedly flooded as a result of culvert installation failed to allege taking for public use; city was entitled to immunity on negligence and Water Code claims (Tex. App. 2011) 63 PEL 375

Metropolitan Sewer District's actions concerning proposed residential development did not amount to an unconstitutional taking (Ky. App. 2011) 63 PEL 405

Highway widening, changing location of median crossovers so that business no longer enjoyed direct left-turn access, did not amount to a taking (S.C. 2011) 63 PEL 406

J

JUDICIAL REVIEW

Court declines to dismiss Fair Housing Act claims concerning allocation of grants for repair and rebuilding in areas damaged by Hurricanes Katrina and Rita (U.S. Dist., D.C. 2010) 63 PEL 16

Circuit court errs in affirming denial of rezoning where parties failed to comply with statutory requirements for judicial review (Miss. App. 2010) 63 PEL 23

Trial court correctly declined to interpret proffer where zoning administrator had refused to process application on grounds of discrepancy between proposed use and proffer (Va. 2010) 63 PEL 24

Trial court lacks jurisdiction to determine whether owner had the right to bury human remains in her yard because she failed to exhaust administrative remedies (Conn. App. 2010) 63 PEL 32

Trial court erred in submitting issue of private nuisance to jury (Ark. 2010) 63 PEL 62

Court order to approve development implied order to amend land use plan (Fla. App. 2010) 63 PEL 63

Signature of certificate of costs by director of community development, rather than secretary to board of zoning appeals, did not warrant dismissal of challenge to variance (Ga. App. 2010) 63 PEL 64

Owners of substandard lots could challenge constitutionality of decision that lots should be considered one lot without exhausting administrative remedies (Wis. App. 2010) 63 PEL 65

Trial court erred in dismissing improper filing by unrepresented party, acting in reliance on notice of decision (Wis. App. 2010) 63 PEL 66

Board of appeals decision is not subject to judicial review because the town board retains discretion to initiate enforcement after the decision (Me. 2010) 63 PEL 105

Court grants one-month extension on deadline for U.S. Environmental Protection Agency's promulgation of hazardous air pollutant rules (U.S. Dist., D.D.C. 2011) 63 PEL 132

Challenge to redevelopment project is moot because project was substantially complete by the time of trial (Cal. App. 2011) 63 PEL 142

Findings making reference to specific testimony were amenable to judicial review and supported denial of variance from critical area setbacks (Md. App. 2011) 63 PEL 143

Biological opinion by National Marine Fisheries Service is subject to direct review in federal trial court (U.S. App., 4th Cir. 2011) 63 PEL 176

Court should consider whether Vermont Transportation Board was required to consider application for private helipad where town, lacking zoning ordinance, refused to approve the use (Vt. 2011) 63 PEL 197

Amendment of adult use ordinances while appeal was pending rendered appeal moot (U.S. App., 11th Cir. 2011) 63 PEL 203

Mandamus action was appropriate to require city to condemn drainage easement damaged by its actions (Ohio App. 2011) 63 PEL 225

Denial of conditional use permit for group home was quasi-judicial, not legislative, in nature (Ark. 2011) 63 PEL 227

Local Land Use Planning Act is the exclusive basis for judicial review of decisions made under the Act and provides for review of permits, not rezoning (Idaho 2011) 63 PEL 228

Remand for failure to state reasons is unnecessary where developer failed to comply with soil test and water supply requirements and board could not approve the application (Mass. App. 2011) 63 PEL 237

Court lacked jurisdiction to consider appeal from county's wrongful interpretation of site disturbance ordinance (Idaho 2011) 63 PEL 261

County approval of growth allocation for proposed development in Chesapeake Bay Critical Area was not a "final" action for judicial review (Md. 2011) 63 PEL 262

City is not immune from claims based on breach of development agreement (Tex. 2011) 63 PEL 266

Local agency's determination of nuisance cannot serve as res judicata to bar takings claims (Tex. 2011) 63 PEL 334

Trial court order that town issue conditional use permit without new conditions was consistent with remand (N.C. App. 2011) 63 PEL 376

Dismissal of action asserting nonconforming use status for mine was not mandated by town's assertion of failure to exhaust administrative remedies (N.Y. App. 2011) 63 PEL 378

Challenge to protest provisions of statute was moot; time for action on proposed zoning districts had passed and could not be extended by stipulation (Mont. 2011) 63 PEL 407

Trial court findings were inadequate to support order imposing conditions on operation of dirt track motor raceway (Ohio App. 2011) 63 PEL 408

JURISDICTION

Growth management hearings board had jurisdiction to consider whether comprehensive plan amendment to permit expansion of business complied with Growth Management Act (Wash. App. 2011) 63 PEL 126

K

L

LACHES

City's failure to enforce ordinance, conditioning subdivision approval on developer making improvements, does not deprive it of authority to impose assessment to pay for improvements (Iowa 2011) 63 PEL 400

LANDFILLS

Statute requiring review of zoning does not apply to landfill facility that accepted waste prior to stated cutoff date (Ind. 2011) 63 PEL 177

Mississippi Commission on Environmental Quality was not required to make an independent determination of the need for an additional county landfill (Miss. 2011) 63 PEL 263

LOT REGULATION

Lot division caused existing house to become nonconforming with respect to floor area ratio (Mass. App. 2010) 63 PEL 67

M

MINING

Variance to allow expansion of mining operation is not supported by sufficient evidence of hardship or a compelling reason (Miss. App. 2010) 63 PEL 25

Approval of environmental impact statement for phosphate mining in Caribou National Forest did not violate the National Environmental Policy Act (U.S. App., 9th Cir. 2010) 63 PEL 106

U.S. Environmental Protection Agency's "enhanced coordination process" for §§ 402 and 404 permits adopts a new position, likely in violation of notice and comment requirements (U.S. Dist., D.D.C. 2011) 63 PEL 144

Court upholds amendments to West Virginia surface mining control and reclamation program (U.S. Dist., S.D.,W.Va. 2011) 63 PEL 145

Summary judgment denied in takings case concerning remediation of mine land by the U.S. Environmental Protection Agency (U.S. Fed. Cl. 2011) 63 PEL 302

Exception, allowing mining on agricultural land "only to support" public roadway projects, does not apply to mine that would sell aggregate on open market (Fla. App. 2011) 63 PEL 357

City had authority to grant interim use permit subject to conditions for mining operation (Minn. App. 2011) 63 PEL 377

Dismissal of action asserting nonconforming use status for mine was not mandated by town's assertion of failure to exhaust administrative remedies (N.Y. App. 2011) 63 PEL 378

Challenge to protest provisions of statute was moot; time for action on proposed zoning districts had passed and could not be extended by stipulation (Mont. 2011) 63 PEL 407

MOBILE/MANUFACTURED HOMES

Denial of application to expand nonconforming mobile home park is within board's discretion (Mass. App. 2010) 63 PEL 26

Prohibition on "sales lot or area" in mobile home park does not prohibit sale of a home to be inhabited on the lot (N.Y. App. 2011) 63 PEL 299

Mobile home is a structure and requires a permit, even if unoccupied, on wheels, and not connected to utilities or plumbing (Me. 2011) 63 PEL 322

MUNICIPAL LIABILITY

City is not liable for officials' interpretation of ordinance as prohibiting reconstruction of signs damaged by hurricane (Ala. App. 2018 2010) 63 PEL 18

County is not immune from liability for assessments on lots acquired for nonpayment of taxes (Tenn. App. 2010) 63 PEL 21

Town is liable for breach of development agreement concerning construction at airport, despite objections by Federal Aviation Administration (Cal. App. 2010) 63 PEL 146

Operation of sewer system is discretionary and city is not liable for flooding (Miss. 2011) 63 PEL 178

County's retention of attorney who acted with a conflict of interest and converted money deposited as performance bond may be the basis of liability under 42 U.S.C. § 1983 (U.S. Dist., N.D. Fla. 2011) 63 PEL 264

Actions to operate a sewer system, whether pursuant to or in deviation from an operational plan, are proprietary actions not covered by statutory immunity for discretionary acts (Ohio App. 2011) 63 PEL 265

City is not immune from claims based on breach of development agreement (Tex. 2011) 63 PEL 266

Property owner had no claims for negligence or inverse condemnation based on county officials' mistaken assertions about zoning classifications (S.C. 2011) 63 PEL 379

N

NONCONFORMING USES

Denial of application to expand nonconforming mobile home park is within board's discretion (Mass. App. 2010) 63 PEL 26

City council is without authority to determine that nonconforming use with respect to parking had terminated (Pa. App. 2010) 63 PEL 27

Replacement of nonconforming sign on wooden poles with a sign on a steel pole, following destruction by storm, violates "like materials" requirement (Tenn. App. 2010) 63 PEL 39

Owner of manufactured home park is entitled to replace nonconforming recreational vehicles with new recreational vehicles (Idaho 2010) 63 PEL 68

Lot, rendered nonconforming by condemnation of part of larger parcel, is not entitled to a building permit (Appeals Court of Massachusetts 2010) 63 PEL 69

Application for and approval of rezoning for a new use did not constitute abandonment of nonconforming use that was not discontinued (La. App. 2010) 63 PEL 107

Board did not act arbitrarily in determining that placement of small manufactured cabins on recreational vehicle rental lots constituted permissible continuation of nonconforming use, rather than impermissible expansion (Miss. App. 2011) 63 PEL 179

Operation of religious boarding and day school constituted impermissible expansion of nonconforming use as a synagogue (N.J. App. 2011) 63 PEL 180

Tax records are key evidence of discontinuance of nonconforming use (Wis. App. 2011) 63 PEL 181

Enactment of floating zone to permit operation of yacht club in residential area mooted claims of impermissible expansion of nonconforming use (R.I. 2011) 63 PEL 229

While a nonconforming use cannot be established by trespass, permission to use land may be implied (Wash. App. 2011) 63 PEL 300

Business operating under conditional use permit became nonconforming when zoning changed, so the permit conditions can no longer be enforced (Wis. App. 2011) 63 PEL 301

NOTICES

Publication of notice of Federal Emergency Management Agency's proposed changes to base elevations did not provide constructive notice of change in classifications of property (La. App. 2010) 63 PEL 108

Notice that incorrectly stated block numbers, but gave the property's common name, was adequate (N.J. App. 2011) 63 PEL 147

Objectors, having relied on board secretary's mistaken statement of date of publication, were entitled to an extension for filing challenge (N.J. 2011) 63 PEL 148

Redevelopment resolution was not rendered invalid because notice, sent to owner in compliance with statute, was never received (N.J. App. 2011) 63 PEL 149

Notice of claim, filed under the name of sole shareholder of the limited liability company that owns property, is inadequate to satisfy statutory requirement of notice by owner (Ariz. App. 2011) 63 PEL 182

Post-hearing notice of project was adequate where county made good faith effort to identify and contact affected owners (N.Y. App. 2011) 63 PEL 183

Extensive changes to conform zoning ordinance to comprehensive plan did not require individual notice (R.I. 2011) 63 PEL 306

Ordinance eliminating special exception cannot be challenged for failure to strictly comply with time limits concerning notice more than 30 days after effective date (Pa. App. 2011) 63 PEL 380

NUISANCES

Electric utility company may assert comparative negligence defense in claim for damages alleging nuisance as a result of stray voltage (Iowa 2010) 63 PEL 111

Demolition of building deemed to be a nuisance did not violate owner's constitutional rights or constitute a taking (Va. App. 2011) 63 PEL 226

Local agency's determination of nuisance cannot serve as res judicata to bar takings claims (Tex. 2011) 63 PEL 334

Cooperative may be liable for overspray drift to organic farm fields (Minn. App. 2011) 63 PEL 354

Environmental impact report is not required to consider impact of the environment (existing sewage treatment plant) on proposed mixed use development (Cal. App. 2011) 63 PEL 365

Governmental entities were entitled to "design immunity" on claims of nuisance and dangerous conditions relating to bluff erosion resulting from projects, but are liable for inverse condemnation (Cal. App. 2011) 63 PEL 372

Trial court findings were inadequate to support order imposing conditions on operation of dirt track motor raceway (Ohio App. 2011) 63 PEL 408

O

OPEN SPACE

Road and bridge to provide access to private development is not accessory to park use, but an encumbrance of parkland requiring voter approval under city charter (Cal. App. 2011) 63 PEL 150

Change to statutory definition of "bona fide offer" did not apply retroactively; contingent offer to purchase land taxed as agricultural triggered city's right of first refusal (Mass. App. 2011) 63 PEL 230

Condition requiring dedication of open space exceeded authority of board (Mass. App. 2011) 63 PEL 289

Assessment for construction of regional recreation trail is invalid (Wis. App. 2011) 63 PEL 291

City's Greenway Plan may impose vegetation and mitigation requirements on industrial land but the land use board of appeals must evaluate the adequacy of the city's inventory of land suitable for inclusion in the plan (Or. App. 2011) 63 PEL 352

P

PARKING

Condominium association is required to accommodate disabled residents' parking needs regardless of local law concerning common elements (U.S. App., 1st Cir. 2010) 63 PEL 4

City council is without authority to determine that nonconforming use with respect to parking had terminated (Pa. App. 2010) 63 PEL 27

Limitation on off-street overnight parking in residential district should have been enacted as a zoning ordinance, not a general ordinance (Mass. App. 2011) 63 PEL 409

PARKS

Court rejects challenges to adaptive management changes to the Interagency Bison Management Plan for Yellowstone herd (U.S. Dist., D. Mont. 2011) 63 PEL 184

City's Greenway Plan may impose vegetation and mitigation requirements on industrial land but the land use board of appeals must evaluate the adequacy of the city's inventory of land suitable for inclusion in the plan (Or. App. 2011) 63 PEL 352

PLANNED UNIT DEVELOPMENT

Denial of approval for two-phase planned residential development, based on concerns that development of second phase might be delayed, was not arbitrary (Tenn. App. 2010) 63 PEL 109

Conditional planned commercial development approval for Wal-Mart did not require identification of specific uses (Pa. App. 2011) 63 PEL 209

PLANNING

Appellate court invalidates revised "third round" of Council on Affordable Housing "fair share" rules (N.J. App. 2010) 63 PEL 17

POLLUTION

Owner is liable for contamination from underground storage tank, regardless of knowledge or fault (N.Y. App. 2011) 63 PEL 185

Department of Environmental Conservation improperly excluded contaminated site from brownfields cleanup program (N.Y. Trial 2011) 63 PEL 234

Summary judgment denied in takings case concerning remediation of mine land by the U.S. Environmental Protection Agency (U.S. Fed. Cl. 2011) 63 PEL 302

Compensation claims, based on pollution of the Saint Lucie River, are barred by limitations period and riparian owners' failure to establish a property interest (U.S. App., Fed. Cir. 2011) 63 PEL 335

Charge based on carbon dioxide emission, levied against a single taxpayer and forming part of a statewide regulatory program, is a "fee" rather than a tax for purposes of Tax Injunction Act (U.S. App., 4th Cir. 2011) 63 PEL 336

Legislation authorizing U.S. Environmental Protection Agency to regulate greenhouse gases displaces any possible federal common-law nuisance suits concerning such emissions (U.S. 2011) 63 PEL 337

City has "affected person" status to request contested case hearing on Concentrated Animal Feeding Operations water quality permit (Tex. App. 2011) 63 PEL 338

Denial of subdivision approval based on general welfare concerns violated Municipal Land Use Law (N.J. App. 2011) 63 PEL 385

Clean Air Act preempts Arizona's repeal of state laws allocating lottery funds to transportation improvements to ensure compliance with state implementation plan (U.S. Dist., D. Ariz. 2011) 63 PEL 421

PREEMPTION

Interstate Commerce Commission Termination Act preempts air quality management district rules concerning idling trains (U.S. App., 9th Cir. 2010) 63 PEL 28

Local conditions, including reliance on volunteer fire department, do not justify exception to state construction standards to allow required sprinklers (Pa. 2010) 63 PEL 29

Ordinances regulating employment and rental housing, including penalties for employment or housing of undocumented aliens, are preempted by Federal Immigration Reform and Control Act (U.S. App., 3rd Cir. 2010) 63 PEL 30

Local zoning restrictions are not preempted by composting regulations in state Natural Resources and Environmental Protection Act (Mich. App. 2010) 63 PEL 110

Interstate Commerce Commission Termination Act preempts local nuisance law that would require repainting of railroad bridge covered with rust and graffiti (S.C. 2011) 63 PEL 151

Los Angeles County may enforce nuisance laws against medical marijuana facility operating in violation of zoning code (Cal. App. 2011) 63 PEL 186

Wetlands regulations, requiring permit for removal of trees on protected land on airport site, are not preempted by federal law (U.S. App. 2nd Cir. 2011) 63 PEL 187

Town may sue to enforce conditions imposed on highway entrance permit by Maine Department of Transportation (Me. 2011) 63 PEL 188

Ordinance, requiring conditional use permits for restaurants with liquor licenses after neighborhood saturation point is reached, is preempted by state law (Pa. App. 2011) 63 PEL 231

Right to Farm Act does not preclude all local regulation of agricultural operations (Fla. App. 2011) 63 PEL 316

Agricultural exemption from township zoning does not require that viticulture be the primary use of property engaged in vinting and selling wine (Ohio 2011) 63 PEL 355

State engineer's approval of water transfer did not preclude or preempt county's denial of special use permit for transfer facility (Nev. 2011) 63 PEL 381

Clean Air Act preempts Arizona's repeal of state laws allocating lottery funds to transportation improvements to ensure compliance with state implementation plan (U.S. Dist., D. Ariz. 2011) 63 PEL 421

PROCEDURE, ADMINISTRATIVE

Trial court correctly declined to interpret proffer where zoning administrator had refused to process application on grounds of discrepancy between proposed use and proffer (Va. 2010) 63 PEL 24

Approvals by wetlands agency are not invalid for failure to report to planning and zoning commission (Conn. App. 2010) 63 PEL 31

Trial court lacks jurisdiction to determine whether owner had the right to bury human remains in her yard because she failed to exhaust administrative remedies (Conn. App. 2010) 63 PEL 32

Wetlands commission properly considered modified application without extensive hearings, on remand after court invalidated condition in original permit approval (Conn. App. 2010) 63 PEL 33

Rutgers Law School Clinic is subject to Open Records Act with respect to representation of environmental groups (N.J. App. 2010) 63 PEL 34

Land Use Board of Appeals was required to accept city's plausible interpretation of its ordinance concerning traffic impact analysis (Or. 2010) 63 PEL 70

Governor lacked authority to delay publication of regulation adopted by Environmental Improvement Board (N.M. 2011) 63 PEL 167

Denial of plan for cluster development in rural agricultural district, based on inconsistency with purposes of code, was not arbitrary (Md. App. 2011) 63 PEL 189

Commission correctly declined to consider traffic concerns in determining "public interest" for purposes of approving injection well (Tex. 2011) 63 PEL 214

Unseated alternate board member may participate in public hearing but not in deliberations (Conn. App. 2011) 63 PEL 232

Hearing officer lacked authority to reinstate application cancelled due to developer's inaction (Wash. App. 2011) 63 PEL 303

District council may not withdraw its election to review approvals for expansion of gasoline station (Md. App. 2011) 63 PEL 339

Department of Environmental Protection erred in denying exemption from Highlands Water Protection and Planning Act (N.J. App. 2011) 63 PEL 367

Denial of oral request for document did not violate Connecticut Freedom of Information Act (Conn. App. 2011) 63 PEL 382

Denial of development plan was insufficient in failing to specify how the plan failed to meet requirements of the ordinance (Ind. App. 2011) 63 PEL 410

Board's "straw vote" on whether objector had standing was not a final administrative action (Md. App. 2011) 63 PEL 411

Borough council, hearing appeal from zoning officer's denial of a permit, lacked authority to impose conditions on permit (Pa. App. 2011) 63 PEL 412

PROCEDURE, LEGISLATIVE

City council's reversal of approval for liquor store, based on public opinion, was not arbitrary (La. 2011) 63 PEL 236

Curative amendment, addressing billboards, was not invalid due to procedural defects in enactment (Pa. App. 2011) 63 PEL 267

Council need not provide a verbatim transcript of hearing reciting reasons for enactment of ordinance inconsistent with master plan (N.J. App. 2011) 63 PEL 320

PUBLIC LAND

Baseline for environmental assessment of plan to replace causeways and bridges in national park is current condition, not condition that existed when highway was first built (U.S. Dist., D. S.C. 2011) 63 PEL 268

Approval of a detailed term sheet for development of a football stadium is not a project or project approval requiring an environmental impact report (Cal. App. 2011) 63 PEL 270

City, acting under a claim of title and not in exercise of sovereign powers, did not have intent requisite to establish a taking (Tex. App. 2011) 63 PEL 374

PUBLIC UTILITIES

Sewer and water system capital recovery fees, assessed on a per unit basis, are valid (Ala. 2010) 63 PEL 6

Commission reasonably balanced interests in granting conditional use permit for expansion of electrical substation in residential district (Kan. App. 2010) 63 PEL 48

Electric utility company may assert comparative negligence defense in claim for damages alleging nuisance as a result of stray voltage (Iowa 2010) 63 PEL 111

Utility company must pay for relocation of gas lines, located in public street easement, to accommodate road widening (Mo. App. 2011) 63 PEL 152

Operation of sewer system is discretionary and city is not liable for flooding (Miss. 2011) 63 PEL 178

Requiring developer to pay sewer use benefit fee, assessed to all district property, would be an unconstitutional taking where developer already paid a fee to the city that actually serves the property (Ohio App. 2011) 63 PEL 290

City has no obligation to provide water or sewer service to unincorporated property, despite having provided service to adjacent property (Ariz. App. 2011) 63 PEL 304

City's action in forgiving unpaid assessments without providing refunds to owners who had paid in full did not violate equal protection rights (Ind. 2011) 63 PEL 309

Electric utility has power of eminent domain (Mont. 2011) 63 PEL 324

Foreign corporation must establish status as a pipeline company in order to condemn easement (Okla. 2011) 63 PEL 326

Electric power company must obtain franchise from city for operation of gas pipeline within city (Minn. 2011) 63 PEL 340

Public housing authority's agreement to make payments in lieu of taxes precludes town's assessment of fees for new sewer service users to pay for expansion of the town's sewerage system plant (Conn. App. 2011) 63 PEL 399

Metropolitan Sewer District's actions concerning proposed residential development did not amount to an unconstitutional taking (Ky. App. 2011) 63 PEL 405

Gas company cannot be required to pay cost of relocating its lines within easement to accommodate county road widening (Mo. 2011) 63 PEL 413

R

RECREATION

School's plan to allow public use of indoor tennis courts for a fee, outside of school hours, does not transform facility into a business use (N.Y. App. 2011) 63 PEL 269

Challenge to approval of trail, as conflicting with state policy favoring agricultural uses, was untimely (Wash. App. 2011) 63 PEL 414

REDEVELOPMENT

Tenant is entitled to compensation for condemnation of leasehold, regardless of lease clause, where redeveloper-landlord's interest will not change ownership (N.J. App. 2011) 63 PEL 233

Department of Environmental Conservation improperly excluded contaminated site from brownfields cleanup program (N.Y. Trial 2011) 63 PEL 234

Amendment of redevelopment plan to reauthorize use of eminent domain was not justified by evidence that significant blight remains (Cal. Trial 2011) 63 PEL 249

Approval of a detailed term sheet for development of a football stadium is not a project or project approval requiring an environmental impact report (Cal. App. 2011) 63 PEL 270

City's amendment of redevelopment contract was within its discretion (Mo. App. 2011) 63 PEL 415

RELIGIOUS INSTITUTIONS

City employees, the mayor, and council members are immune from suit based on city's sale of homeless shelter to religious organization (U.S. App., 9th Cir. 2010) 63 PEL 19

Planning commission appropriately considers the Religious Land Use and Institutionalized Persons Act in determining that Hebrew Academy was in substantial compliance with conditional use permit and modifying conditions in religious-neutral manner (Cal. App. 2010) 63 PEL 35

Requirements that religious school obtain a conditional use permit and comply with the California Environmental Quality Act before operating in residential district does not violate the Religious Land Use and Institutionalized Persons Act (Court of Appeal of California 2010) 63 PEL 36

Variances for addition to church, built in 1900, are supported by evidence (Ohio App. 2010) 63 PEL 37

Property, always used as a commercial rental, is not eligible for exemption from landmark status as a noncommercial property owned by a religious association (Cal. App. 2010) 63 PEL 71

Challenge to parking conditions imposed on mosque is rejected (N.Y. 2010) 63 PEL 72

Second Circuit affirms injunction against city's enforcement of notice prohibiting catering events at church based on "equal terms" provisions of RLUIPA (U.S. App., 2nd Cir. 2010) 63 PEL 73

Designation of church as a single-parcel historic district did not violate Religious Land Use and Institutionalized Persons Act (U.S. Dist., D. Mass 2011) 63 PEL 153

Preservation of area for industrial uses does not constitute a compelling government interest for purposes of the "substantial burden" test under the Religious Land Use and Institutionalized Persons Act (U.S. App., 9th Cir. 2011) 63 PEL 190

Court dismisses most Religious Land Use and Institutionalized Persons Act and civil rights claims arising from village's failure to permit diocese cemetery (U.S. Dist., E.D.N.Y. 2011) 63 PEL 191

Church did not have a vested right to existing law, under which churches were a special use in commercial district, when it contracted to buy former restaurant (Ill. App. 2011) 63 PEL 235

Township's application of zoning laws to religious organization ministering to people with chemical sensitivities to environmental pollutants did not violate the Religious Land Use and Institutionalized Persons Act (Mich. App. 2011) 63 PEL 271

States, in accepting federal funds, do not waive sovereign immunity to private suits for damages under the Religious Land Use and Institutionalized Persons Act (Tex. 2011) 63 PEL 272

Chabad Lubavitch center, denied certificate of appropriateness for 20,000-square-foot addition in historic district, stated claims under the Religious Land Use and Institutionalized Persons Act (U.S.Dist., D. Conn. 2011) 63 PEL 341

Zoning allowing nonreligious, nonretail establishments to obtain special permits in business district, but disallowing churches, violates equal terms provision of Religious Land Use and Institutionalized Persons Act (U.S. App., 5th Cir. 2011) 63 PEL 342

Because church was not otherwise entitled to build in residential area, city's "equal terms" Religious Land Use and Institutionalized Persons Act violation entitled it to only $1 in nominal damages (U.S. App., 11th Cir. 2011) 63 PEL 416

RENT CONTROL

Owners abandoned challenges to 1982 Loft Law by failing to take action with respect to the law until 2008 (N.Y. App. 2010) 63 PEL 112

Landlords failed to prove that renewal of rent control ordinance was arbitrary (N.J. App. 2011) 63 PEL 192

REZONING

Circuit court errs in affirming denial of rezoning where parties failed to comply with statutory requirements for judicial review (Miss. App. 2010) 63 PEL 23

Denial of rezoning is reasonably debatable (Utah 2010) 63 PEL 38

Rezoning from agricultural to small community classification was supported by substantial evidence (Ky. App. 2010) 63 PEL 113

Owner of property rezoned while plans for affordable housing were pending presented adequate evidence of bad faith to avoid summary judgment (La. App. 2011) 63 PEL 273

Rezoning for duplexes was not supported by substantial evidence of change in neighborhood (Miss. App. 2011) 63 PEL 274

Approval of planned unit development was consistent with comprehensive plan and supported by the record (Wash. App. 2011) 63 PEL 288

Approval of two rezoning petitions in a "swap" arrangement was lawful (Idaho 2011) 63 PEL 305

Extensive changes to conform zoning ordinance to comprehensive plan did not require individual notice (R.I. 2011) 63 PEL 306

Substantial evidence supported findings that rezoning was not needed, would be inappropriate due to deficient infrastructure, and would be inconsistent with comprehensive plan (Wash. 2011) 63 PEL 343

Department of City Planning's rezoning of 128-block area was adequately supported by Environmental Assessment Statement, and no Environmental Impact Statement was required (N.Y. App. 2011) 63 PEL 402

Rezoning of property containing deteriorating nursing home facility to allow use as a recreational facility was not spot zoning (Tex. App. 2011) 63 PEL 419

S

SIGNS AND BILLBOARDS

City is not liable for officials' interpretation of ordinance as prohibiting reconstruction of signs damaged by hurricane (Ala. App. 2018 2010) 63 PEL 18

Replacement of nonconforming sign on wooden poles with a sign on a steel pole, following destruction by storm, violates "like materials" requirement (Tenn. App. 2010) 63 PEL 39

Sign company lacks standing to challenge sign ordinance where proposed signs would violate unchallenged size and location provisions of ordinance (U.S. App., 3rd Cir. 2010) 63 PEL 46

Ordinance prohibition on billboards with "more than one poster panel or equivalent per facing" does not prohibit LED panel that changes messages (Ind. App. 2010) 63 PEL 114

Curative amendment, addressing billboards, was not invalid due to procedural defects in enactment (Pa. App. 2011) 63 PEL 267

Inverse condemnation action, based on city issuing a stop-work order on installation of LED display without a permit, was not ripe (Tex. App. 2011) 63 PEL 307

Property owners, leasing property for advertising, fall within code definition of outdoor advertising companies, subject to sanctions for illegal signage (N.Y. App. 2011) 63 PEL 344

Annexation of the sites cannot operate to retroactively divest the companies of vested rights to construct billboards (Ga. 2011) 63 PEL 350

Sign ordinance, prohibiting or limiting window signs by area, is constitutional (Mich. App. 2011) 63 PEL 417

SOCIAL EQUITY

Ordinances regulating employment and rental housing, including penalties for employment or housing of undocumented aliens, are preempted by Federal Immigration Reform and Control Act (U.S. App., 3rd Cir. 2010) 63 PEL 30

SPECIAL EXCEPTIONS

Special exception for telecommunications tower should not have been granted, absent evidence that applicant can meet setback and access requirements (Pa. App. 2010) 63 PEL 40

City council's reversal of approval for liquor store, based on public opinion, was not arbitrary (La. 2011) 63 PEL 236

Denial of special exception based on violations of conditions imposed on previous special exceptions was arbitrary (Tenn. App. 2011) 63 PEL 345

SPECIAL PURPOSE DISTRICTS

District, providing sewerage but not water service, may not unreasonably withhold approval for town to provide water (Colo. 2011) 63 PEL 275

SPECIAL USE PERMITS

County may adopt a different standard from the state's presumption of compatibility for special uses to deny a permit for a special exception where non-inherent adverse effects exist (Md. App. 2010) 63 PEL 115

Denial of a special permit to allow dwelling to remain on nonconforming property was not arbitrary (Mass. App. 2011) 63 PEL 154

Denial of special use permit for cluster development did not violate applicants' equal protection rights (U.S. App., 6th Cir. 2011) 63 PEL 418

SPOT ZONING

Variance to allow expansion of mining operation is not supported by sufficient evidence of hardship or a compelling reason (Miss. App. 2010) 63 PEL 25

Restriction, applicable to a single 69-acre parcel and limiting that parcel to 20-acre lots, did not constitute spot zoning or violate equal protection rights (Cal. App. 2011) 63 PEL 366

Rezoning of property containing deteriorating nursing home facility to allow use as a recreational facility was not spot zoning (Tex. App. 2011) 63 PEL 419

STANDING

Sign company lacks standing to challenge sign ordinance where proposed signs would violate unchallenged size and location provisions of ordinance (U.S. App., 3rd Cir. 2010) 63 PEL 46

The requirement of standing to request enforcement was not waived by failure to raise it before board of appeals (Mass. App. 2010) 63 PEL 74

Company lacks standing to challenge constitutionality of billboard ban because its signs would be prohibited by unchallenged provisions (U.S. App., 3rd Cir. 2010) 63 PEL 75

Village lacked standing to challenge neighboring town's action on environmental impact statement for rezoning (N.Y. Trial 2010) 63 PEL 76

Owners lacked standing to challenge ordinances because they did not allege enforcement or adequately allege that the laws affected their properties (N.C. App. 2010) 63 PEL 77

National Association for the Advancement of Colored People and home builders associations lack standing to challenge ordinances that increase the cost of housing (U.S. App., 5th Cir. 2010) 63 PEL 78

Company, denied approval to open methadone clinic, has standing to bring claims under the Americans with Disabilities Act and the Rehabilitation Act (U.S. Dist., W.D.Pa. 2010) 63 PEL 116

State is not precluded from recovering damages related to contamination of private wells by gasoline additive (N.H. 2011) 63 PEL 133

Association of French Quarter owners and residents failed to establish present or probable future harm to members sufficient for standing to seek injunction based on zoning (La. App. 2011) 63 PEL 137

Environmental groups lack prudential standing to challenge county's actions with respect to roads on federal land (U.S. App., 10th Cir. 2011) 63 PEL 155

Owner of property within 100 feet of newly created overlay zone has standing to challenge creation of the zone (Conn. App. 2011) 63 PEL 193

Developer, whose land was not downzoned, lacks standing to challenge zoning amendments that upzoned land owned by competitors (Idaho 2011) 63 PEL 194

Residents failed to show direct injury necessary to establish standing to appeal approval of condominium (N.H. 2011) 63 PEL 276

City has "affected person" status to request contested case hearing on Concentrated Animal Feeding Operations water quality permit (Tex. App. 2011) 63 PEL 338

City's requirement of aggrievement to appeal permit decision did not deny resident's constitutional rights (Alaska 2011) 63 PEL 346

Objectors who did not reside or own property in county lacked standing to challenge district council approval of gasoline station in business park (Md. 2011) 63 PEL 347

Owner of property that must be crossed for access to uninhabited houses had standing to challenge variances to replace houses but did not show actual prejudice to substantial rights (Idaho 2011) 63 PEL 383

SUBDIVISION

Denial of subdivision approval based on concerns about tidal surge and ordinance prohibiting subdivision that would "reasonably be harmful to safety" is valid (Ala. 2010) 63 PEL 41

County is not required to apply current, less restrictive access standards to permit residential construction created 30 years ago (Or. App. 2010) 63 PEL 42

Subdivisions created from estate of single owner were not part of common scheme of development, so abandonment of restrictions in one area did not amount to abandonment in other development (Conn. App. 2011) 63 PEL 156

Remand for failure to state reasons is unnecessary where developer failed to comply with soil test and water supply requirements and board could not approve the application (Mass. App. 2011) 63 PEL 237

Map notation that lots were "not approved for building lots" was not adequate to convey restriction in perpetuity (N.Y. App. 2011) 63 PEL 238

Ordinance purporting to govern subdivision of agricultural land is preempted by state law (Ky. 2011) 63 PEL 245

Subdivision plan must comply with both comprehensive plan and zoning ordinance; city correctly denied application that did not meet lower density goals of plan (R.I. 2011) 63 PEL 287

Board was entitled to deny subdivision approval based on concerns about contamination on property (N.J. App. 2011) 63 PEL 348

Denial of proposal to amend 1991 subdivision plan was justified by inconsistency with master plan (Md. App. 2011) 63 PEL 384

Denial of subdivision approval based on general welfare concerns violated Municipal Land Use Law (N.J. App. 2011) 63 PEL 385

County commission acting in an administrative, not legislative, capacity did not have authority to deny an application that complied with the subdivision regulations (Mo. App. 2011) 63 PEL 420

T

TAXATION

Bonds to fund infrastructure are valid despite pending litigation concerning the sales tax to be used to pay the obligation (La. App. 2011) 63 PEL 157

Program under which developers seeking to connect to sewer system would pay for credits so that town could complete mandatory repairs was an illegal tax, not a fee (Mass. App. 2011) 63 PEL 158

Emission reduction credits, necessary to put power plant to beneficial use, may be considered in assessment of the property (Cal. App. 2011) 63 PEL 308

City's action in forgiving unpaid assessments without providing refunds to owners who had paid in full did not violate equal protection rights (Ind. 2011) 63 PEL 309

Assessment for road paving, not wanted by residents, was consistent with legal principles (Iowa 2011) 63 PEL 310

Legislation requiring that regional coalition turn over funds collected from users to state general fund is unconstitutional (Nev. 2011) 63 PEL 311

Charge based on carbon dioxide emission, levied against a single taxpayer and forming part of a statewide regulatory program, is a "fee" rather than a tax for purposes of Tax Injunction Act (U.S. App., 4th Cir. 2011) 63 PEL 336

Public housing authority's agreement to make payments in lieu of taxes precludes town's assessment of fees for new sewer service users to pay for expansion of the town's sewerage system plant (Conn. App. 2011) 63 PEL 399

TELECOMMUNICATIONS

Denial of variances to locate antennae in false chimneys on apartment building was not supported by substantial evidence (N.J. App. 2010) 63 PEL 117

Abutters, asserting only that setbacks should apply to all towers, lacked standing to challenge permit for tower concealed within existing church steeple (Mass. App. 2011) 63 PEL 159

Determination that company did not propose adequate camouflage for telecommunications tower did not justify denial of variance (N.J. App. 2011) 63 PEL 195

Denial of setback variance, following approval of height and use variances for telecommunications tower, was arbitrary (N.J. App. 2011) 63 PEL 239

Telecommunications equipment falls within intent of easement for "public utility" use (Mich. App. 2011) 63 PEL 386

Proposed 180-foot telecommunications tower in a rural area would not violate a clear, written community conservation standard (Vt. 2011) 63 PEL 387

Special exception for telecommunications tower should not have been granted, absent evidence that applicant can meet setback and access requirements (Pa. App. 2010) 63 PEL 40

Local planning commission, not state public service commission, has jurisdiction over application for construction of cellular tower (Ky. 2010) 63 PEL 79

TRANSPORTATION

Interstate Commerce Commission Termination Act preempts local nuisance law that would require repainting of railroad bridge covered with rust and graffiti (S.C. 2011) 63 PEL 151

Wetlands regulations, requiring permit for removal of trees on protected land on airport site, are not preempted by federal law (U.S. App. 2nd Cir. 2011) 63 PEL 187

Metropolitan Transportation Commission funding decisions did not have a disparate impact on minority riders (U.S. App., 9th Cir. 2011) 63 PEL 196

Court should consider whether Vermont Transportation Board was required to consider application for private helipad where town, lacking zoning ordinance, refused to approve the use (Vt. 2011) 63 PEL 197

Florida Supreme Court denies emergency petition based on governor's rejection of high-speed rail project (Fla. 2011) 63 PEL 240

Baseline for environmental assessment of plan to replace causeways and bridges in national park is current condition, not condition that existed when highway was first built (U.S. Dist., D. S.C. 2011) 63 PEL 268

Environmental Impact Statement for Juneau Access Improvements Project failed to adequately explore reasonable alternatives (U.S. App., 9th Cir. 2011) 63 PEL 277

Court affirms categorical exemption finding for San Antonio interchange (U.S. Dist., W.D. Tex. 2011) 63 PEL 278

Use of motor vehicle funding to study valuation of highway lanes to be leased for light-rail purposes indirectly benefits public highways and is a lawful use of the funds (Wash. 2011) 63 PEL 279

Failure to prepare a supplemental environmental impact statement after neighbors objected to final design of transit facility did not violate the National Environmental Policy Act (U.S. Dist., S.D.N.Y. 2011) 63 PEL 330

Legislation prohibiting Federal Transit Association from enforcing charter bus rule to prohibit special service to Seattle Mariners games is constitutional (U.S. App., D.C. Cir. 2011) 63 PEL 349

Clean Air Act preempts Arizona's repeal of state laws allocating lottery funds to transportation improvements to ensure compliance with state implementation plan (U.S. Dist., D. Ariz. 2011) 63 PEL 421

U

V

VARIANCES

Variances for addition to church, built in 1900, are supported by evidence (Ohio App. 2010) 63 PEL 37

Denial of variances for soup kitchen and homeless shelter is unreasonable (N.J. App. 2010) 63 PEL 43

Company that had a grandfathered right is not a valid comparator in a "class of one" equal protection claim challenging denial of a variance (U.S. App., 2nd Cir. 2010) 63 PEL 98

Owner did not establish undue hardship necessary to justify variance for six-foot fence along streets (N.J. App. 2010) 63 PEL 118

Renovation of existing store, with no impact on parking spaces nonconforming with respect to lot-line setbacks, does not require a variance (N.J. App. 2010) 63 PEL 119

Denial of setback variances for construction of boathouse was supported by substantial evidence of the impact on neighbors' view of lake (Wash. App. 2010) 63 PEL 120

Owners are not entitled to variance where mistakes of architect or contractor caused construction of a house more than two feet higher than 35-foot limit (Conn. App. 2011) 63 PEL 160

Variance modification is not required to add deck, compliant with all regulations, to house rebuilt on nonconforming lot pursuant to a variance (Conn. App. 2011) 63 PEL 198

Owner failed to establish special reasons for variance to allow 87 parking spaces for an apartment complex required to have 132 spaces (N.J. App. 2011) 63 PEL 199

Denial of setback variance, following approval of height and use variances for telecommunications tower, was arbitrary (N.J. App. 2011) 63 PEL 239

After-the-fact variance application is not subject to a higher approval standard, and there is no presumption the hardship is self-imposed (Wis. App. 2011) 63 PEL 280

Owner of property that must be crossed for access to uninhabited houses had standing to challenge variances to replace houses but did not show actual prejudice to substantial rights (Idaho 2011) 63 PEL 383

Record supported denial of after-the-fact variance for garage built within property line setback (Minn. App. 2011) 63 PEL 422

Variance to allow for-profit recreational center in light industrial zone, in which nonprofit recreational facilities are a conditional use, did not satisfy "positive criteria" (N.J. App. 2011) 63 PEL 423

Variance condition, requiring that exterior stairs be two feet from property boundary, was unreasonable (N.Y. App. 2011) 63 PEL 424

VESTED RIGHTS

Building permit application filed in 2004 was complete, as a matter of law, and vested development rights (Wash. App. 2010) 63 PEL 44

Application for digital signs, submitted two days before enactment of ordinance prohibiting such signs, did not vest rights (Mo. App. 2010) 63 PEL 80

Developer who made expenditures before obtaining required permits did not have a vested right in zoning classification (N.C. App. 2010) 63 PEL 81

Owners, having obtained a Measure 37 waiver to develop forest land, did not have a vested right after enactment of Measure 49, having failed to satisfy conditions of waiver (Or. App. 2010) 63 PEL 121

Application of subsequently enacted stormwater ordinance to subdivision did not constitute a taking or violate due process (U.S. Dist., D. W.Va. 2011) 63 PEL 281

Annexation of the sites cannot operate to retroactively divest the companies of vested rights to construct billboards (Ga. 2011) 63 PEL 350

Proposal for extraction and processing facility was subject to standards in effect when county ruled on application, not those in effect when application was submitted (Or. App. 2011) 63 PEL 388

Submission of a reconsideration application under Act 250, Vermont's impact review statute, is not a separate vesting event but a continuation of the original application (Vt. 2011) 63 PEL 389

Developer has vested right to build a hotel because of 1985 approval of a mixed use "project" on the site (Tex. App. 2011) 63 PEL 425

W

WASTE DISPOSAL

Metropolitan council had authority to disapprove location of proposed waste transfer station before board of zoning appeals considered special exception (Tenn. App. 2011) 63 PEL 351

Environmental impact report is not required to consider impact of the environment (existing sewage treatment plant) on proposed mixed use development (Cal. App. 2011) 63 PEL 365

Public housing authority's agreement to make payments in lieu of taxes precludes town's assessment of fees for new sewer service users to pay for expansion of the town's sewerage system plant (Conn. App. 2011) 63 PEL 399

Metropolitan Sewer District's actions concerning proposed residential development did not amount to an unconstitutional taking (Ky. App. 2011) 63 PEL 405

WATER AND WATERCOURSES

Owner of property primarily in closed basins that do not discharge rainwater to lake is not subject to special provisions intended to protect lake from runoff (Fla. App. 2010) 63 PEL 122

Court denies injunction to require all available measures to prevent migration of Asian carp from Illinois waterways to Lake Michigan (U.S. Dist., N.D. Ill. 2010) 63 PEL 123

Biological Opinion for operation of Leavenworth National Fish Hatchery did not adequately justify conclusion of "no jeopardy" to bull trout (U.S. App., 9th Cir. 2010) 63 PEL 124

State is not precluded from recovering damages related to contamination of private wells by gasoline additive (N.H. 2011) 63 PEL 133

Diversion of treated, but still contaminated, water to uncontaminated watershed is not allowable; courts may review permitting decision authorizing such actions (Mich. 2010) 63 PEL 161

U.S. Army Corps of Engineers failed to establish significant nexus between wetlands and navigable river, seven miles distant, as required to assert Clean Water Act jurisdiction over wetlands (U.S. App., 4th Cir. 2011) 63 PEL 162

Trespass action, brought by owner of land that became wetlands because of flow from neighboring owner's efforts to reestablish wetlands, was not barred by "common enemy doctrine" (Ind. App. 2011) 63 PEL 200

Federal Circuit vacates dismissal of takings and contract claims relating to temporary reduction in water from Klamath Irrigation Project (U.S. App., Fed. Cir. 2011) 63 PEL 201

Temporary flooding as a result of operation of dam, which is not inevitably recurring, does not amount to a taking (U.S. App., Fed. Cir. 2011) 63 PEL 241

Holders of water use priorities were not deprived of property by state order to cease using wells pending entry of a plan for augmentation (Colo. 2011) 63 PEL 242

Permanent reduction in the flow of water is compensable (N.C. App. 2011) 63 PEL 282

Virginia statutes establish concurrent authority for the Virginia Marine Resources Commission and local governments with respect to moorings beyond the mean low-water mark (Va. 2011) 63 PEL 283

City has no authority to regulate improvements to dock, extended from private road to provide subdivision residents with water access and consistent with subdivision map (Conn. 2011) 63 PEL 312

Trial court acted within its discretion in setting lake levels to be maintained by repair of dam (Minn. App. 2011) 63 PEL 313

Runoff and impervious surface regulations intended to "minimize" effects on critical areas did not "protect" those areas as required by Growth Management Act (Wash. App. 2011) 63 PEL 328

Compensation claims, based on pollution of the Saint Lucie River, are barred by limitations period and riparian owners' failure to establish a property interest (U.S. App., Fed. Cir. 2011) 63 PEL 335

City has "affected person" status to request contested case hearing on Concentrated Animal Feeding Operations water quality permit (Tex. App. 2011) 63 PEL 338

City's Greenway Plan may impose vegetation and mitigation requirements on industrial land but the land use board of appeals must evaluate the adequacy of the city's inventory of land suitable for inclusion in the plan (Or. App. 2011) 63 PEL 352

Owners of land allegedly flooded as a result of culvert installation failed to allege taking for public use; city was entitled to immunity on negligence and Water Code claims (Tex. App. 2011) 63 PEL 375

State engineer's approval of water transfer did not preclude or preempt county's denial of special use permit for transfer facility (Nev. 2011) 63 PEL 381

Denial of wetlands permit for apartment complex including affordable units was not supported by substantial evidence (Conn. App. 2011) 63 PEL 390

Eleventh Circuit remands decisions concerning U.S. Army Corps of Engineers operation of Buford Dam and Lake Lanier and denial of Georgia's request for additional water allocations (U.S. App., 11th Cir. 2011) 63 PEL 391

The Department of Natural Resources has a general duty to consider whether proposed high-capacity well would harm waters of the state and to consider scientific evidence of potential harm when such evidence is presented (Wis. 2011) 63 PEL 392

Z

ZONING

Developer who made expenditures before obtaining required permits did not have a vested right in zoning classification (N.C. App. 2010) 63 PEL 81

Town lacked authority to prohibit special purpose district from selling groundwater from its land (Ind. App. 2010) 63 PEL 82

Evidence of nonuse without "due and sufficient cause" supported termination of water right (Kan. App. 2010) 63 PEL 83

Law requiring issuance of permits for domestic wells without consideration of impact on senior water rights is constitutional (N.M. App. 2010) 63 PEL 84

Zoning official was justified in reviewing and denying applications, so that denial did not constitute tortious interference with contract (U.S. App., 11th Cir. 2010) 63 PEL 85

Determination that proposed 75 million-gallon-per-year ethanol plant did not have potential for significant environmental effects and did not require an environmental impact statement was supported by record (Minn. App. 2010) 63 PEL 97

Local Land Use Planning Act is the exclusive basis for judicial review of decisions made under the Act and provides for review of permits, not rezoning (Idaho 2011) 63 PEL 228

Enactment of floating zone to permit operation of yacht club in residential area mooted claims of impermissible expansion of nonconforming use (R.I. 2011) 63 PEL 229

Structures used in production and sale of wine are exempt from township zoning as agricultural uses (Ohio App. 2011) 63 PEL 285

Ordinances including buffering and licensing requirements for adult uses were licensing, not zoning, laws (Ind. App. 2011) 63 PEL 314

Appeals court requests that supreme court establish test for determining whether a regulation, purportedly enacted under general police power, is actually a zoning ordinance (Wis. App. 2011) 63 PEL 353

ZONING ORDINANCES

Denial of plan for cluster development in rural agricultural district, based on inconsistency with purposes of code, was not arbitrary (Md. App. 2011) 63 PEL 189