Civil Procedure Zoning, Planning & Land Use Administrative Agency

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Finality! Common Sense Prevails Over Wetlands Jurisdictional Determinations

“All good things come to those who wait,” certainly is not an expression that applies to property owners who receive wetlands jurisdictional determinations (JD) from the Army Corps of Engineers with which they disagree. ...more

Is Your Business a “Nuisance”? If so, It Could Cost You Dearly

Many landlords and businesses are already aware that they may be sued in a civil court for criminal acts committed by others on their property. While this is a reactive process that occurs in response to a specific incident,...more

Eighth Circuit Creates Circuit Split By Holding Jurisdictional Determinations Under The Clean Water Act Constitute "Final Agency...

On April 10, 2015, the United States Court of Appeals for the Eighth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) pursuant to the Clean Water Act (CWA)...more

Virginia Supreme Court Opinions Affecting Local Government Law – April 16, 2015

The Virginia Supreme Court issued opinions this morning during its April term. This term resulted in several opinions affecting Virginia local government law. Opinions addressed evidence in a condemnation case, interpreted...more

Landowners, Developers Win Big In Wetlands Case

Building on a 2012 U.S. Supreme Court decision, the Eighth Circuit ruled on April 10th that Clean Water Act jurisdictional determinations made by the U.S. Army Corps of Engineers can be challenged in a “pre-enforcement”...more

Army Corps Jurisdictional Determinations Subject to Pre-Permit Judicial Review, Eighth Circuit Says

EPA and Army Corps of Engineers imposition of federal Clean Water Act requirements can now be challenged in court without waiting for the agencies to bring an enforcement action, at least in the Eighth Circuit. On April 10,...more

Federal Court Strikes Down HCP: No Piggybacks Under Section 10

While decisions dealing with lawsuits alleging violations of section 7 or section 9 of the Endangered Species Act (ESA) are rather common, it is far less common for courts to address suits under section 10. In fact, in any...more

Storm Water Update

We recently informed our clients that there has been an apparent uptick in recent months of citizens suits against storm water permittees for alleged storm water violations under the Clean Water Act. According to a recent...more

NEPA Review — Still the Land of Deference

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an...more

D.C. District Court Denies Utility’s Intervention Because of Timing

On March 17, 2015, the D.C. District Court denied the Public Service Company of New Hampshire’s (PSNH’s) motion to intervene in a Sierra Club-initiated proceeding urging the U.S. EPA to object to a Title V permit for one of...more

Source Aggregation: Recent Court Decision Addresses Whether Certain Facilities are "Adjacent"

On February 23, 2015, the U.S. District Court for the Middle District of Pennsylvania issued a decision finding eight compressor stations to be "separate sources" under the Clean Air Act and State of Pennsylvania regulations....more

2014 Eminent Domain Year in Review & 2015 Forecast

At first it seemed 2014 had been a relatively slow year for eminent domain cases. But looking back, there was more activity than we initially recalled. There were few decisions that provided any dramatic shift in the...more

Virginia Supreme Court Opinions Affecting Local Government Law – February 26, 2015

This term resulted in two cases which, in our opinion, affect Virginia local government law.  One, decided by order, deals with the effect of a failure to name a necessary party (a governing body) in appealing a BZA decision....more

Fairfax Circuit Court Limits Homeowners’ Ability to Challenge Zoning Administrator

Contentious land use approvals often result in lawsuits, which, even when unsuccessful, can lead to costly delays for developers. In the recent case styled In Re: November 20, 2013 Decision of the Board of Zoning Appeals of...more

D.C. Circuit Rejects Psychological Harm Theory in Deer-Culling Case

This Tuesday, the D.C. Circuit issued an opinion in No. 13-5136, Grunewald v. Jarvis, affirming the lower court’s decision that the National Park Service’s promulgation of the White-Tailed Deer Management Plan was lawful. At...more

U.S. Supreme Court Holds in Favor of Cell Tower Siting Applicants

On January 14, the U.S. Supreme Court in T-Mobile South, LLC v. City of Roswell, held that the City of Roswell ("City") violated the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii) (the "Telecommunications...more

First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management...

In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a...more

District Court Limits Tiering of Biological Opinions

On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to...more

CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA

Recently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a...more

Real Estate and Land Use - November 2014

Change of Heart – Court of Appeal Reverses Opinion in Bowman v. California Coastal Commission - Why it matters: The court in Bowman originally held that a permit condition could not be modified or deleted by a second...more

Illinois Supreme Court Agrees to Decide Remedy for Unserved Notices of Violation

What happens when the City doesn’t properly serve a notice of building code violations? In the closing days of its September term, the Illinois Supreme Court agreed to decide that issue in Stone Street Partners, LLC v. City...more

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review....more

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in...more

Numerous Parties Line Up in Support of Petition in Delta Smelt Case

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme...more

Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116. By its long-awaited order issued October 31,...more

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