Justia Real Estate & Property Law Opinion Summaries

Wal-Mart Stores, Inc. appealed a judgment entered in favor of the Spring Valley Lake Association (Association) determining the City of Victorville failed to comply with the California Environmental Quality Act (CEQA) and the Planning and Zoning Law when the City approved the Tamarisk Marketplace Project. Wal-Mart argued to the Court of Appeal that the judgment should have been reversed because, contrary to the court's decision, there was substantial evidence to support the City's finding the project was consistent with the general plan and the project's environmental impact report (EIR) adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending the Court should have reversed the judgment because the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. Upon review, the Court of Appeal disagreed with Wal-Mart's contentions and partially agreed with the Association's contentions. Consequently, the Court affirmed the judgment as to the issues raised in Wal-Mart's appeal, reversed the judgment as to certain of the issues raised in the Association's appeal, and remanded the matter for further proceedings. View "Spring Valley Lake Assn. v. City of Victorville" on Justia Law

Cottonwood Creek watershed was an area covering approximately 379 square miles in parts of Logan, Oklahoma, Canadian and Kingfisher Counties. The area was prone to flooding, and in March of 1962, Logan County Soil and Water Conservation District No. 9 (LCSWCD), Cottonwood Creek Water and Soil Conservancy District No. 11 (CCWSCD), and the United States Department of Agriculture (USDA), prepared a plan to alleviate dangers associated with uncontrolled water flow. One of the structures included in the work plan was Floodwater Retarding Structure No. 54 (FWRS 54). On September 24, 1962, D.C. and Odessa Fitzwater granted an easement (Fitzwater Easement) to CCWSCD. Years later, changes in safety criteria and the development of houses downstream compelled the USDA and Oklahoma Water Resources Board (OWRB) to recast FWRS 54 as a high hazard class (c) dam.3 This new classification was based on changes in safety criteria, the development of 26 houses downstream, and the potential for loss of life following a structural failure. In March of 2006, the USDA issued a written proposal calling for the rehabilitation of FWRS 54. The USDA watershed plan suggested multiple repairs and improvements to FWRS 54. Logan County Conservation District (LCCD) filed a declaratory action seeking permission to perform rehabilitation work on FWRS 54. The petition alleged the Fitzwater and Impoundment Easements vested LCCD with the right to complete the rehabilitation project. Property owners Phyllis Crowder and John White, Jr. answered and claimed that the proposed work did not fall within the scope of the original easements. Accordingly, Crowder and White maintained the rehabilitation project would lead to an improper taking of their land. Pleasant Oaks Lake Association (POLA) and individual homeowners also answered, alleging the project would constitute a taking requiring payment of compensation. LCCD filed a motion seeking summary judgment. The motion asserted LCCD was authorized to perform work on FWRS 54 based upon the unambiguous language contained in deeds establishing the Fitzwater and Impoundment Easements. The homeowners and the homeowners association appealed a judgment finding Conservation District was authorized to enter their respective properties to perform the rehabilitation work. The Supreme Court affirmed, finding that the plain language in the deeds creating the easements included a right to ensure the dam's structural integrity through a rehabilitation project. View "Logan County Conservation Dist. v. Pleasant Oaks Homeowners Ass'n" on Justia Law

The trust sought a building permit, to replace a dilapidated 1950s minesweeper deckhouse on the Owls Head property with a new, larger single-family residence. The existing structure is located partly within a 75-foot setback zone from the Atlantic Ocean; it contains a wetland of special significance that would necessitate a Maine Department of Environmental Protection permit before building. The new structure would be located partly within the setback zone, but farther from the ocean, with an addition lying completely outside of the setback zone and not encroaching on the wetland. The Planning Board approved the plan, finding that under the Town’s Shoreland Zoning Ordinance, "this is a nonconforming structure and it may be re-located, further away from the ocean, but not into the wetland ... to the greatest extent practical." The Board of Appeals reversed. The Superior Court agreed, finding the Board should not have considered the proposed addition before determining whether the relocation of the existing structure “conforms to all setback requirement[s] to the greatest practical extent.” The proper analysis would have been to first consider how the existing structure could be relocated to conform and to then consider whether an addition outside of the setback area could be constructed. The Maine Supreme Judicial Court remanded, agreeing with the BOA and lower court, and finding that the Board applied the wrong ordinance section in considering the permit application. View "Osprey Family Trust v. Town of Owls Head." on Justia Law

Department of Environmental Protection (DEP) regulations require that those deemed to be liable after a spill of hazardous materials within a specified radius of a public water supply undertake cleanup and monitoring to ensure the spill does not pose a danger to that water supply, 310 Code Mass. Regs. 40.0801, 40.0810, 40.0993(3)(a), 40.1030(2)(e). A 2007 modification exempts "oil" from some requirements when specific conditions are met, 310 Code Mass. Regs. 40.0924(2)(b)(3)(a). Peterborough owns a now-vacant Athol property, within a protection area, where it operated a gasoline station for more than 10 years. In 1994, a release of leaded gasoline from a subterranean gasoline storage tank was detected in soil on the site. DEP required Peterborough to undertake supervised cleanup and monitoring activities. In 2008, after the oil exemption was established, Peterborough submitted a revised plan, stating that further remediation was not required because the entirety of the spill fell within the exemption's definition of "oil." DEP responded that the meaning of "oil" in the exemption does not include gasoline additives such as lead, but refers only to petroleum hydrocarbons naturally occurring in oils, so that a spill of leaded gasoline could not be completely excluded from further remediation. The trial court, on summary judgment, and the Massachusetts Supreme Judicial Court, upheld the DEP interpretation of the regulation as reasonable. View "Peterborough Oil Co., LLC v. Dep't of Envtl. Prot." on Justia Law

A Suffolk developer set aside an Equestrian Center Parcel (ECP) for lease to a riding school and stable, with the stable to pay real estate taxes owed on the ECP. The lease expressly anticipated that ownership of the ECP would later be conveyed to a property owners’ association, which was subsequently organized. Although the stable could sell services to non-members, the lease required preferential treatment for Association members. The Association’s declaration included the ECP as Association’s property but noted that it was leased. The city began assessing real estate tax on the ECP in 2009. In 2012, the city exonerated the Association of liability for tax years ending in 2009, 2010, and 2011. The city again assessed tax on the ECP for tax years ending in 2012, 2013, 2014, and 2015. No one paid the assessments. The city published notice that the ECP would be sold for non-payment of taxes. The Association sought a declaratory judgment that the ECP could not be directly assessed because, under Code 58.1-3284.1(A), any tax due was payable only by the Association’s individual members. The court ruled that the stable was a commercial enterprise and that the statute did not intend “open or common space” to include real estate used for commercial enterprises open to nonmembers of an owners’ association. The Supreme Court of Virginia reversed; nothing in the statutory definition excludes commercial property. Association members who did not board horses at the Stable used its picnic tables, trails, and parking area. View "Saddlebrook Estates v. City of Suffolk" on Justia Law

Peat mining companies sought a Clean Water Act, 33 U.S.C. 1311(a), 1362, permit from the Army Corps of Engineers, to discharge material onto wetlands on property that they own and hope to mine. The Corps issued a jurisdictional designation (JD) stating that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away. The district court dismissed their appeal for want of jurisdiction, holding that the JD was not a “final agency action for which there is no other adequate remedy,” 5 U.S.C. 704. The Eighth Circuit reversed. The Supreme Court affirmed. The Corps’ approved JD is a final agency action judicially reviewable under the Administrative Procedures Act. An approved JD clearly “mark[s] the consummation” of the Corps’ decision-making on whether particular property contains “waters of the United States.” It is issued after extensive fact-finding regarding the property’s physical and hydrological characteristics and typically remains valid for five years. The Corps describes approved JDs as “final agency action.” The definitive nature of approved JDs gives rise to “direct and appreciable legal consequences.” A “negative” creates a five-year safe harbor from governmental civil enforcement proceedings and limits the potential liability for violating the Act. An “affirmative” JD, like issued here, deprives property owners of the five-year safe harbor. Parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” The permitting process is costly and lengthy, and irrelevant to the finality of the approved JD and its suitability for judicial review. View "Army Corps of Eng'rs v. Hawkes Co." on Justia Law

This case arose out of a permit application to obtain a water right filed by the respondents, North Snake Ground Water District, Magic Valley Ground Water District and Southwest Irrigation District (“the Districts”), to appropriate water from Billingsley Creek on real property owned by appellant Rangen, Inc. After the Director of the Idaho Department of Water Resources denied the application in a final order, the Districts petitioned for judicial review. The district court set aside the Director’s final order. Rangen appealed. Rangen historically diverted water from Billingsley Creek. Before the Department ruled on the Districts’ April 2013 application, Rangen filed a competing application on February 3, 2014. Rangen’s application sought to divert 59 cfs from Billingsley Creek for fish propagation, with the same source and point of diversion elements as the Districts had requested. On January 2, 2015, Rangen’s application was approved for 28.1 cfs for fish propagation with a priority date of February 3, 2014. This permit had apparently not been challenged. Department employee James Cefalo presided over a hearing on the Districts’ application and subsequently issued a Preliminary Order Issuing Permit in which he found that the application was made in good faith, did not conflict with the local public interest, and otherwise satisfied the necessary requirements. Therefore, he approved a conditional permit authorizing the Districts to appropriate 12 cfs from Billingsley Creek for mitigation purposes with a priority date of April 3, 2013. Rangen filed a protest of the hearing officer’s preliminary order with the Director. After the parties briefed the issues, the Director subsequently issued a final order overturning the hearing officer’s decision and denying the application. The Director concluded that the Districts’ application was made in bad faith and that the application was not in the local public interest. The Districts petitioned for judicial review, asserting that the Director abused his discretion and exceeded his authority in denying their application. On judicial review, the district court set aside the Director’s final order, concluding that the application was neither made in bad faith nor counter to the local public interest. The district court also rejected Rangen’s arguments that the Districts’ application was incomplete or speculative and that mitigation is not a recognized beneficial use of water under Idaho law. Rangen appealed again. After review of the district court record, the Supreme Court concluded the district court did not err in its judgment and affirmed. View "Rangen, Inc v. North Snake Ground Water Dist." on Justia Law

The Tarrant Regional Water District supplies water to two million Texans across 11 counties and is a governmental agency with the power of eminent domain. In 2010, the Water District and the City of Dallas approved a financing agreement to build a 150-mile pipeline to transport water owned by Dallas in Lake Palestine to the Dallas/Fort Worth area. Construction began in 2014. The proposed route crosses the 1,000-acre LazyW Ranch five miles northwest of Athens in Henderson County, with a 150-foot-wide underground easement, about 3,375 feet long, covering 11.623 acres. The owner, Bennett, opposed to the project, obtained legislation creating the LazyW District, a municipal utility district. Bennett sued the Water District for violating the Texas Open Meetings Act; the court of appeals concluded that the Water District was immune from suit. Bennett repeatedly tried, unsuccessfully, to replace incumbent board members who support the Project’s use of the Ranch and dedicated a small cemetery on the Ranch in the proposed pipeline's path. The Water District offered the Lazy W $169,218 for the easement, and when the offer was rejected, petitioned for condemnation. Bennett asserted governmental immunity. The court refused to proceed further without deciding whether the case should be dismissed. The court of appeals granted mandamus relief. The Supreme Court of Texas vacated, rejecting an argument that the trial court cannot rule on the Lazy W’s plea to the jurisdiction until the commissioners issue their award. It is important that the special commissioners convene and render an award expeditiously and without interference from the court. The trial court had the obligation to consider the Lazy W’s assertion of immunity when the plea to the jurisdiction was filed. View "In re Lazy W Dist. No. 1" on Justia Law

The Town of Lakewood Village, a Type A general-law municipality in Denton County, has a population of 620; its extraterritorial jurisdiction (ETJ) extends one half-mile beyond its boundaries. Tex. Loc. Gov’t Code 42.021(a)(1). The ETJ encompasses part of the Sunrise Bay subdivision. Other parts of the Subdivision are within the city limits and ETJ of Little Elm, a home-rule city that has a larger population. When developers planned the subdivision in the mid-1990s, Little Elm and Denton County approved the final plat. The developers did not file a plat with the Town, which does not provide any services to the Subdivision. Little Elm provides water to the Subdivision. Little Elm and Denton County maintain its roads. In 2013, Bizios purchased a Subdivision lot, located entirely within the Town’s ETJ. Bizios obtained approvals and permits from Denton County, the Federal Emergency Management Agency, and the Subdivision’s architectural review committee. The County inspected the construction. Bizios did not obtain building permits from the Town, although its ordinances adopt building codes and make them enforceable within its ETJ. The Town filed suit after Bizios ignored its orders to stop construction. The trial court granted the Town a temporary injunction. The court of appeals reversed. The Supreme Court of Texas agreed that a Type A general-law municipality does not have authority to enforce its building codes and building-permit requirements within its extraterritorial jurisdiction. View "Town of Lakewood Village v. Bizios" on Justia Law

Coyote Lake Ranch, about 40 square miles, in the Texas Panhandle, is used for agriculture, raising cattle, and hunting. It is primarily grass-covered sand dunes, with some is irrigated cropland. Water comes from the Ogallala Aquifer, the principal source of water for the Texas High Plains, including the City of Lubbock, about 90 miles southeast of the Ranch. In 1953, during “‘one of the most devastating droughts in 600 years,’” the Ranch deeded its groundwater to the city, reserving water for domestic use, ranching operations, oil and gas production, and agricultural irrigation, by one or two wells in each of 16 specified areas. In 2012, the city announced plans to increase water-extraction efforts on the Ranch, drilling as many as 20 test wells in the middle of the Ranch, followed by 60 wells across the Ranch. The Ranch objected that the proposed drilling would increase erosion and injure the surface unnecessarily. The court of appeal dissolved a temporary injunction entered in favor of the Ranch. The Supreme Court of Texas remanded, agreeing that an injunction “so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights” was an abuse of discretion. The court cited the accommodation doctrine as applicable to a interests in groundwater: a lessee has an implied right to use the land as necessary for production and removal of the resource, with due regard for the landowner’s rights. View "Coyote Lake Ranch, LLC v. City of Lubbock" on Justia Law