Articles Posted in Zoning, Planning & Land Use

by
The surface and mineral estates of “Tract 46” in Pike County, Kentucky have been severed for a century. Pike and Johnson own the surface estate as tenants in common. Pike also owns the entirety of the coal below and wants to mine. In 2013, Pike granted its affiliate a right to enter the land and commence surface mining. Despite Johnson’s protestations, Kentucky granted a surface mining permit. Mining commenced in April 2014. In 2014, as the result of a federal lawsuit, the Secretary of the Interior determined that the permit violated the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1250. The deficiencies in the original permit were remedied; Kentucky issued an amended permit the same year. The Secretary then confirmed that the permit complied with federal law. Johnson sued again. An ALJ, the district court, and the Sixth Circuit affirmed, first finding that Johnson exhausted its administrative remedies to the extent required by SMCRA. The ALJ’s application of Kentucky co-tenancy law, instead of the state’s rules of construction for vague severance deeds, to uphold the issuance of Elkhorn’s permit and the Secretary’s termination of the cessation order was not arbitrary, capricious, or contrary to law. View "M.L. Johnson Family Properties, LLC v. Bernhardt" on Justia Law

by
Saginaw, Michigan requires owners of vacant property to register their property. The registration form says that owners must permit the city to enter their property if it “becomes dangerous as defined by the City of Saginaw Dangerous Building Ordinance.”. Several property owners refused to register. The city imposed a fine. Claiming they had no obligation to consent to unconstitutional searches of their property, the owners filed suit. The Sixth Circuit affirmed the dismissal of the suit. The registration form and the ordinance, as implemented by the city, only ask for something that the Fourth (and Fourteenth) Amendment already allows—a warrantless search of a building found to be dangerous. The court noted the safeguards the ordinance provides before a property is declared dangerous. Because the registration form requires the property owner to allow entrance to his property only after a fair administrative process determines the building is dangerous, it does not require the waiver of any Fourth Amendment rights. View "Benjamin v. Stemple" on Justia Law

by
Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law

by
Upper Arlington's Master Plan guides its zoning decisions, emphasizing the need to increase the city’s revenue by attracting business development in the small portion of the city’s land that is devoted to commercial use. To further the Plan’s goals, the Unified Development Ordinance restricts the use of areas zoned "office district" to specific uses that are primarily commercial. The operation of schools, both secular and religious, is prohibited within the office district. Nonetheless, Tree of Life decided to purchase a large office building on a 16-acre tract within the office district for the operation of a pre-K through 12th-grade school. After failing to secure authorization to operate the school, Tree filed suit, citing the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc(b)(1). After two prior appeals, the district court granted Upper Arlington judgment, holding that the Ordinance is no more onerous to Tree than to non-religious entities that generate comparably small amounts of revenue for the city. The Sixth Circuit affirmed. Revenue maximization is a legitimate regulatory purpose. Upper Arlington’s assertion of revenue maximization as the purpose of the Ordinance is not pretextual. Daycares are the only potentially valid comparator put forward by Tree, which presented no evidence suggesting that nonprofit daycares are similarly situated to its proposed school in terms of their capacity to generate revenue. View "Tree of Life Christian Scool. v. City of Upper Arlington" on Justia Law

by
Mason, an African-American Ohio resident sued against all 88 Ohio county recorders for violating the Fair Housing Act’s prohibition against making, printing, or publishing “any . . . statement” indicating a racial preference, such as a racially restrictive covenant. Mason’s complaint included copies of land records, recorded in 1922-1957, that contain racially restrictive covenants. There is no allegation that such covenants have been enforced since the 1948 Supreme Court decision prohibiting enforcement of such covenants. Mason maintains that permitting documents with restrictive covenants in the chain of title to be recorded or maintained and making them available to the public violated the Act. Mason alleges that defendants “discouraged the Plaintiff and others from purchasing real estate ... by creating a feeling that they ... do not belong in certain neighborhoods” and that defendants’ actions “damage and cloud the title to property owned by property owners.” Mason’s counsel stated that Mason became aware of the covenants while looking to buy property, a fact not contained in the complaint. The Sixth Circuit affirmed that Mason lacked standing. A plaintiff must show that he suffered a palpable economic injury distinct to himself; any alleged injury was not caused by the county recorders, who are required by Ohio statute to furnish the documents to the public; county recorders cannot redress the alleged harm, as they have no statutory authority to edit the documents. View "Mason v. Adams County Recorder" on Justia Law

by
LCS, a nondenominational Christian school in Livingston County, Michigan, sought to relocate after operating for several years in Pinckney, LCS entered into a lease agreement to operate its school on the property of Brighton Nazarene Church in Genoa Charter Township. The Township informed LCS that an amended special-use permit was required. The Church applied for a permit on LSC’s behalf. The Township denied the application, citing traffic concerns, inconsistency with the surrounding area’s single-family residential zoning, the failure of the Planning Commission’s proposed conditional approval to mitigate these problems, and the Church’s history of noncompliance with the zoning ordinance and with conditions on its prior special-use permits. The district court rejected, on summary judgment, LCS’s claim that the denial violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc. The Sixth Circuit affirmed. When a religious institution has an available alternative outside of a desired jurisdiction, and where the distance from the desired location to the alternative property is reasonably close, the artificial boundaries of a particular jurisdiction become less important. The record here does not indicate that traveling roughly 12 miles to Pinckney would be unduly burdensome to LCS’s students. Nor does the record demonstrate that LCS’s religious beliefs required it to locate within Genoa Township. View "Livingston Christian School v. Genoa Charter Township" on Justia Law

by
In 2009, Mosley's Wickliffe, Ohio Motel needed a tenant for its lounge. Miller's nightclub in neighboring Willoughby had drawn the ire of law enforcement. The two executed a lease; Miller applied for permits. Miller claims that the city was initially receptive, but, after informing it of his plan to host a “Hip Hop night, [catering] to African American[s],” the city allegedly changed its position. Miller’s occupancy permit application was denied pending revised parking plans. Miller needed a liquor license from the state. The city did not oppose Miller’s application, but religious organizations did. The city passed a resolution, supporting that opposition. The state denied Miller’s application, citing the objections of the religious organizations and “the peace and good order of the neighborhood.” Miller did not appeal. The city passed Ordinance 2009-49, requiring “nightclubs” to obtain a permit and delineating the health ad safety responsibilities; it restricted nightclub locations to buffer schools, churches, libraries, parks, taverns, bars, other nightclubs, and residential districts. Miller and Mosley never applied for nightclub permits. Miller became involved with Cirino in a proposed billiards hall, the temporary-occupancy permit for which was then revoked. The three sued under 42 U.S.C. 1983 and 42 U.S.C. 2000A (racial discrimination) with state law and takings claims. The district court dismissed. The Sixth Circuit affirmed. Plaintiffs cannot demonstrate that Wickliffe had reached a final decision under the ordinance, or that they faced a credible threat of prosecution, and cannot show a particularized and concrete injury sufficient to confer jurisdiction. View "Mosley v. City of Wickliffe" on Justia Law

by
AT&T applied for a permit from the Lexington-Fayette Urban County Planning Commission to build a 125-foot cell-phone tower. Neighboring residents opposed the application, arguing that the tower would spoil the view from their properties, disturb the character of the neighborhood, endanger public health and safety, and depress residential property values. They cited a staff report concerning the tower's visual impact, an expert report on radio frequency emissions, and valuation studies. The Commission granted the site permit. The Fayette County Circuit Court dismissed an appeal on procedural grounds. A state court appeal is pending. The district court dismissed a separate suit alleging negligence, negligence per se, gross negligence, and nuisance. The Sixth Circuit affirmed, citing “obstacle” preemption by the federal Telecommunications Act of 1996. The court also noted that the claims constituted an improper collateral attack on the Commission’s decision to approve the tower. View "Robbins v. New Cingular Wireless PCS, LLC" on Justia Law

by
The developer sought rezoning for a Rockford condominium project. Objectors filed a protest, triggering the Michigan Zoning Enabling Act's special approval procedure, which requires a super majority vote by the city council. The proposal failed; three of the council’s five members voted to approve rezoning. The developer sued, alleging due process violations and regulatory taking. The district court denied Objectors’ motion to intervene. The parties reached a settlement in mediation. The city council approved the settlement by a simple majority; the district court entered a consent judgment that ordered the property rezoned and the Planned Unit Development Agreement approved, dismissing the case. Objectors filed a state court suit, claiming that the city had circumvented the Act and its zoning ordinances and seeking a preliminary injunction. The city and developer returned to federal court, seeking to enjoin the state court from granting a preliminary injunction and to enjoin Objectors from otherwise seeking to invalidate the prior federal consent judgment under the All Writs Act, 28 U.S.C. 1651, and the Anti-Injunction Act, 28 U.S.C. 2283. The court ruled that it lacked jurisdiction to enjoin the state-court proceeding. The Sixth Circuit affirmed, citing the broad prohibition on such action under the Anti-Injunction Act and concluding that the “relitigation exception” did not apply because the state court issue was never raised in the prior federal proceeding and because Objectors lacked the requisite connection to that litigation to be bound by the consent judgment. View "202 N. Monroe, LLC v. Sower" on Justia Law

by
Because of zoning by Upper Arlington, a suburb of Columbus, Ohio, Tree of Life Christian Schools could not use its otherwise-unused land and building to operate a religious school. The government denied a rezoning application because such a use would not accord with provisions of the government’s Master Plan, which call for maintaining commercial use zoning to maximize tax revenue. TOL filed suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc– 2000cc-5, alleging that the government illegally failed to treat TOL Christian Schools on equal terms with nonreligious assemblies or institutions. The district court granted the government summary judgment. The Sixth Circuit reversed and remanded for resolution of the factual issue: whether the government treated nonreligious assemblies or institutions that would fail to maximize income-tax revenue in the same way it has treated the proposed religious school. View "Tree of Life Christian Schools v. City of Upper Arlington" on Justia Law