Civil Procedure Zoning, Planning & Land Use

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Fair Play in Granting Area Variances on the Tennis Court and in the Judicial Court

The orientation of a tennis court in a north/south direction is a benefit to competitive players interested in fair tennis play. Even the Appellate Division, Second Department, agrees. To avoid the impact of sun glare, a...more

Ninth Circuit Rules Injury from Future Water Rights Restrictions Too Speculative for Article III Standing

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, “Water Contractors”) lacked Article III standing to...more

Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

Ninth Circuit Finds “Threatened” Designation For Bearded Seals Proper Based On New Long-Term Projections - Alaska Oil and Gas Ass’n et al. v. Pritzker et al., 840 F.3d 671, 2016 U.S. App. LEXIS 19084 (9th Cir. 2016)....more

Fifth Circuit Issues Contentious Dissent Over Designation of Louisiana Land

On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical...more

Texas Court of Appeals Holds That Owner’s Change to Contractor’s Means and Methods Resulted in a “Breach,” Instead of a “Change”...

Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp., 2016 Tex. App. LEXIS 13306 (Tex. App. Houston 14th Dist. Dec. 15, 2016) - This contract dispute dates back to 2004, when the Port of Houston Authority...more

Six 5th Circuit Judges Oppose USFS’s Critical Habitat Designation: Sounds Like Certiorari to Me

The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. There are only 100 of these “shy” frogs left, and none...more

Seventh Circuit Strikes Down Zoning Regulations and Age Restriction Governing Shooting Ranges

On Jan. 18, 2017, the U.S. Court of Appeals for the Seventh Circuit struck down Chicago's zoning regulations limiting shooting ranges to only a small portion of the city, as well as the city's ban on minors entering shooting...more

Fourth Circuit Upends NPDES Permit Shield

The United States Court of Appeals for the Fourth Circuit recently upheld a lower court’s determination that a West Virginia mining company was not shielded from liability by its NPDES permit. The mining company’s permit...more

Denial of Site Plan Application to Construct a Mosque Held to Violate RLUIPA

On December 31, 2016, U.S. District Judge Michael Shipp of the District of New Jersey, authored a 57 page opinion granting partial summary judgment to plaintiffs, The Islamic Society of Basking Ridge (“Islamic Society”)...more

Nashville Islamic Center’s Religious Discrimination Claims Dismissed

A federal district court in Tennessee recently dismissed for lack of subject matter jurisdiction a claim by the Islamic Center of Nashville (ICN) lawsuit challenging a Tennessee property tax exemption law on religious freedom...more

DOJ’s RLUIPA Claims Survive Motion to Dismiss

A federal court in Pennsylvania has denied Bensalem Township’s motion to dismiss a lawsuit brought by the United States Department of Justice challenging the Township’s denial of a use variance for a mosque. The lawsuit...more

Supreme Court Declines to Resolve False Claims Act Public Disclosure Bar Circuit Split

On October 3, 2016, the Supreme Court denied certiorari in Cause of Action v. Chicago Transit Authority, allowing the circuit split regarding what it means for information to be in the “public domain” under the False Claims...more

Second Circuit Upholds EPA’s Water Transfers Rule

The U.S. Court of Appeals for the Second Circuit upheld the U.S. Environmental Protection Agency’s Water Transfers Rule last week. Catskill Mountains Chapter of Trout Unlimited, et al. v. EPA, et al. 14-1823, 14-1909,...more

Municipal Land Use Appeals – Ripe for Confusion?

For the past decade, Maine's Supreme Judicial Court has been struggling to find a way to reduce – and expedite – the number of land use appeals going through the courts. It took the opportunity to make a sweeping new rule in...more

A Condemnation Action is Looming — What are a Landlord’s Disclosure Obligations to Potential Lessees?

Before an eminent domain action is filed, public infrastructure projects involve years of planning, environmental approvals, design, and property negotiations. During this time, property owners and real estate agents/brokers...more

SCOTUS Review of WOTUS Rule

On January 13, the Supreme Court granted a writ of certiorari in National Association of Homebuilders v. Department of Defense, a case challenging the Obama Administration’s “Waters of the United States” rule, which vastly...more

California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance...more

Third Circuit Upholds District Court Decision in Pennsylvania Baptist Church Sign Case

Recently, the Third Circuit Court of Appeals entered an order upholding the district court’s decision in the case of Tearpock-Martini v. Shickshinny Borough, which we reported on last summer. The case involved an...more

Missouri Church Wins Digital Sign Appeal

The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its...more

Supreme Court Grants Review in Medical Marijuana Case Presenting CEQA “Project” Definition Issues

On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.4th 103, Supreme Court Case No....more

FCC Shot Clock Not Tolled by Applicant Delays or Vague Notice of Incompleteness, Court Finds

A city granting an applicant’s request for a continuance of a public hearing over installation of a wireless tower is not a mutual agreement to toll the FCC’s “shot clock,” a federal court has ruled. In addition, a vague...more

Potential Expansion of MTCA to More Owners/Operators of Contaminated Properties in Washington

The Washington State Court of Appeals recently held the Department of Natural Resources (DNR) liable as an operator or owner of a contaminated site under the Model Toxics Control Act, RCW 70.105D (MTCA), in Pope Resources, LP...more

Company that Sold Land for Casino Says It Was Gamed Out of Rightful Price

The Massachusetts Gaming Commission has a big fight on its hands with the guys who sold the land for a casino in Everett to Steve Wynn. If the commission loses, it could be out millions of dollars....more

Recently Proposed Pollution Notice Rule Struck as Invalid

The Division of Administrative Hearings ("DOAH") recently struck down the Florida Department of Environmental Protection's ("FDEP") proposed Public Notice of Pollution Rule 62-4.161 ("the Rule") in response to a petition...more

Appellate Court Notes

AC37979 - Meadowbrook Center, Inc. v. Buchman - Nursing home sued son/guarantor of patient and obtained a judgment for $45,000. The guarantee agreement allowed the nursing home to seek attorney fees. The son appealed...more

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