Civil Procedure Zoning, Planning & Land Use

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Appellate Court Rejects CEQA Claims on Project Modifications Made After Final EIR Published

California's Fourth District Court of Appeal has provided useful guidance on processing requirements for environmental review documents prepared under the California Environmental Quality Act (CEQA) when project modifications...more

Vested Rights – Court of Appeals Update

Sometimes called a “case of the race,” the common law doctrine of vested rights is “one of the most troublesome areas of land use regulation.” Exeter Building Corp v Town of Newburgh, 114 AD3d 774 [2d Dept 2014]....more

Texas Federal Court Grants Preliminary Injunction Based On Sea Turtle Concerns

On March 13, 2017, the U.S. District Court for the Southern District of Texas granted a preliminary injunction relying primarily on Endangered Species Act (ESA) claims, halting operation of a mooring project on the Lydia Ann...more

Safety Issue Can Be “Hardship” Justifying A Zoning Variance

The Massachusetts standard for granting a zoning variance is notoriously difficult to meet. In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography...more

Property Reserve Aftermath: Discovery Available in Right of Entry Cases & Young’s Market Co.

When the California Supreme Court issued its ruling on Property Reserve v. Superior Court, handing a substantial victory to public agencies, we were given three key takeaways: (1) the “Right of Entry” statutes (CCP §1245.010...more

Have We Seen the Last Dance for Quantitative Before Condition Goodwill Valuations?

When a business is taken as a result of a public improvement, the business is entitled to seek compensation for, among other things, loss of business goodwill. Typically, this loss is calculated by measuring the business’...more

Ninth Circuit Holds that Federal Reserved Water Rights Extend to Groundwater

On March 7, 2017, the Ninth Circuit Court of Appeals issued its decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. 15-55896. In this decision, the Court unequivocally held that...more

D.C. Circuit Reinstates Gray Wolf Delisting in Wyoming

On March 3, 2017, the U.S. Court of Appeals for the District of Columbia Circuit upheld a final rule delisting the gray wolf in Wyoming under the Endangered Species Act (ESA). Defenders of Wildlife v. Zinke, No. 14-5300 (D.C....more

California Supreme Court Holds that Communications Related to Public Business do not Cease to be Public Records Just Because They...

On March 2, 2017, in what is easily the sunniest day in this long, wet winter, the Supreme Court of California issued a landmark ruling regarding the California Public Records Act (Cal. Govt. Code § 6250 et seq.), holding...more

Church’s RLUIPA Claim Against an Illinois City is “Likely to Succeed”

The District Court for the Northern District of Illinois granted a preliminary injunction prohibiting the City of Markham from requiring the Original Bible Church of Illinois to obtain conditional use approval to use property...more

Supreme Court decision slashes empty rates bills for developers

The rateable value of commercial premises is generally equal to the rent payable under a hypothetical letting on the relevant assessment date. There are some express statutory assumptions for this – it is to be an annual...more

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

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