Civil Procedure Zoning, Planning & Land Use

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Right of Entry Statutes Are Back in Business – For Now

For decades, California public agencies have utilized a statutory "right of entry" procedure to gain access to private property to conduct investigations and testing before deciding whether to move forward with acquiring the...more

Court Rejects Some, But Not All Challenges to Critical Habitat Designation of Private Land

In 2012, the U.S. Fish and Wildlife Service (Service) published a final rule designating 1,724 acres as critical habitat for the endangered Riverside fairy shrimp (Streptocephalus woottoni).  Included in that designation were...more

NJ Developer Gets Green Light for Antitrust Suit as Rival Supermarket Owner Seeks to Block Wegmans

The Third Circuit Court of Appeals issued a precedential opinion last week when it ruled that a New Jersey real estate developer had standing to pursue antitrust claims against the owner of a nearby ShopRite who engaged in...more

Third Circuit Provides Clarity to “Inextricably Intertwined” Basis of Antitrust Injury in Partially Reinstating Claims Against...

On November 12, 2015, the Third Circuit Court of Appeals issued an opinion partially reversing the dismissal of the plaintiff’s claims in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., finding that plaintiff Hanover...more

First Circuit Court of Appeals Clarifies Limited Deference to Surface Transportation Board Views on Railroad Preemption

In two companion decisions released in October, 2015, the U.S. Court of Appeals, First Circuit, considered the extent to which federal preemption of state and local laws applies to railroad operations involving the...more

Appellate Court Notes

SC19309 - Staton v. Commissioner of Correction - SC19195 - Campos v. Coleman - SC19195 Dissent - Campos v. Coleman - In a 4-3 split decision the Court insured that the cost of living will be going up in...more

Virginia Holds Determination Whether Insurer Acted In Bad Faith Must Be Made By The Judge And Not The Jury

This country’s courts are split on whether the decision to award attorney’s fees in bad faith litigation should be made by the judge or the jury. Earlier this fall, Virginia aligned itself firmly with the former in Revi, LLC...more

Environmental Justice Lawsuit Accuses L.A. of Discriminatory Oil Permitting

On Friday, November 6, three environmental organizations filed suit against the City of Los Angeles in California Superior Court for the County of Los Angeles. The three groups, Youth for Environmental Justice, the Center for...more

Update: Nomadic Church and Delanco Township Consent Order

On November 3, we reported that My Father’s House Ministry, Inc. (Church) sued Delanco Township, New Jersey after denial of the Church’s application for a use variance . (See our November 3 post). Based on the parties...more

Real Estate and Land Use - November 2015

CEQA Baseline Can Consider Historic Levels of Use - North County Advocates v. City of Carlsbad (2015)—Cal.App.4th—Case No. D066488: Why It Matters: This case addresses an important issue under CEQA relating to the...more

Ohio Supreme Court Issues Second Key Decision Interpreting Dormant Mineral Act

On November 5, 2015, in Chesapeake Exploration, L.L.C., et al. v. Kenneth Buell, et al., 2015-Ohio-4551, the Ohio Supreme Court issued its second decision interpreting Ohio’s Dormant Mineral Act (the “ODMA”). The ODMA is a...more

Water Rights Adjudication Process Serving Streamlined

AB 1390 expedites comprehensive groundwater adjudications to determine rights to extract groundwater in a basin. While AB 1390, a companion bill to the Sustainable Groundwater Management Act of 2014, streamlines several...more

Land Use Matters: Alston & Bird LLP, October 2015

At its October 27, 2015, meeting, the Board of Supervisors voted unanimously to create a new dedicated Affordable Housing Program budget unit and approved setting aside $100 million for the creation and operation of both...more

No Damages for First Nations Blockade - Supreme Court of Canada Denies Leave to Appeal in Moulton Contracting Ltd.

The Supreme Court of Canada recently denied leave to appeal in Moulton Contracting Ltd. v British Columbia, confirming the BC Court of Appeal’s decision (2015 BCCA 89) overturning an award of $1.75 million in damages against...more

Think Legal, Act Local: How One Attorney Gave Back to the Community In Which He Lives and Works

We spoke recently with attorney Jeffrey Lewis of Broedlow Lewis to learn more about his firm's pro bono work on a hot-button Southern California case focusing on land use restrictions and the preservation of open space. ...more

Hydrocarbon Exposure Dismissal Affirmed

You might recall previous entries discussing Parr v. Aruba – a suit for personal injuries from oilfield pollution (and a $2.9MM verdict for the plaintiffs). Not all similar suits have the same result....more

Recent W.D. Pa. Opinion Illustrates the Difficulties in Obtaining Spoliation Sanctions

A recent decision from the United States District Court for the Western District of Pennsylvania reiterated just how difficult it is for a party to obtain spoliation sanctions. In Flanders v. Dzugan, No 12-1481, 2015 WL...more

Eighth Circuit Decertifies Environmental Nuisance Class Action Alleging “Fear of Contamination” Without More

The Eighth Circuit recently issued a decision reversing class certification for lack of commonality. In Smith v. ConocoPhillips Pipe Line Co., the Eighth Circuit considered a class action proceeding on a nuisance theory...more

Stadium Follies – When Can You Sue the State of Texas?

What a year it has been for the Podunk (Texas) High School football team. After the school opened its new $50 million, 18,000-seat stadium at the beginning of the year, the team has reeled off an undefeated regular season and...more

Sixth Circuit Stays Obama Administration’s New Clean Water Rule Nationwide

On October 9, 2015, the US Court of Appeals for the Sixth Circuit stayed the implementation of the Clean Water Rule (the Final Rule) nationwide. The Final Rule defines “waters of the United States” (WOTUS), a threshold term...more

Federal Appeals Court Blocks Clean Water Rule Nationwide

In an attempt to “temporarily silence[] the whirlwind of confusion that springs from uncertainty,” the U.S. Court of Appeals for the Sixth Circuit has blocked the new rule defining “waters of the United States” under the...more

California Adopts Comprehensive Groundwater Basin Adjudication Law

California enacts basin adjudication statutes with the goal of reducing uncertainty, costs and time of water rights litigation. On October 9, 2015, California Governor Jerry Brown signed AB 1390 (Alejo) and SB 226...more

Governor Signs New SGMA Legislation Outlining Procedures for Groundwater Adjudications

On Friday, October 9, 2015, Governor Brown signed into law two bills, Assembly Bill 1390 and Senate Bill 226, which outline procedures specific to groundwater adjudications. Last year, the legislature passed the Sustainable...more

New California Laws Will Ease Groundwater Right Battles, Yet Encourage More Litigation

On October 9, 2015 Governor Jerry Brown signed into law two bills aimed at making groundwater disputes easier and faster to resolve in court. The new laws—companion bills AB 1390 (Alejo) and SB 226 (Pavley)—streamline...more

Alberta Court Strikes Out Pleadings Challenging Validity of Oil and Gas Permits

A challenge to the validity of oil and gas permits outside the judicial review process is a collateral attack and will be struck, the Alberta Court of Queen’s Bench held recently in Ominayak v Penn West Petroleum Ltd, 2015...more

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