Articles Posted in Zoning, Planning & Land Use

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Plaintiffs have failed to raise a genuine issue of material fact on whether racial considerations predominated the City of Los Angeles's redistricting process. The Ninth Circuit affirmed the district court's protective order and its order granting summary judgment for the City in an action alleging that race was the predominant motivator in drawing the boundaries of council districts in the Council District 10 redistricting ordinance. Viewed in the light most favorable to plaintiffs, the panel held that the record failed to show that successive boundary amendments were driven predominantly by racial considerations. Rather, the Commission sought to rebalance the populations in each Council District, while preserving communities and unifying as many Neighborhood Councils as possible in a single Council District. The panel also held that the legislative privilege protected local officials from being deposed. View "Lee v. City of Los Angeles" on Justia Law

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The Ninth Circuit withdrew its prior opinion filed December 12, 2017, and substituted the following opinion. In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the panel upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. The panel held that that withdrawal did not extinguish "valid existing rights." The panel affirmed, with one exception, the district court's judgment in an action filed by the Tribe and three environmental groups challenging the Forest Service's determination that Energy Fuels had a valid existing right to operate a uranium mine on land within the withdrawal area. The panel held that the Federal Land Policy and Management Act of 1976, and not the Mining Act, formed the legal basis of plaintiffs' claim that Canyon Mine should not be exempt from the withdrawal because the valid existing right determination was in error. The panel vacated as to this claim and remanded for reconsideration on the merits. View "Havasupai Tribe v. Provencio" on Justia Law

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The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

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Plaintiff, a tattoo artist and long-time resident of Long Beach, filed suit against the City, alleging that the City's zoning ordinances violated the First Amendment by unreasonably restricting his ability to open and operate a tattoo shop in Long Beach. The district court entered judgment for the City. The court concluded that the district court inaccurately narrowed plaintiff's claims in its order by framing plaintiff's challenge as only to the conditional use permit (CUP) requirement, when plaintiff also challenged the location restrictions on tattoo shops; ignoring plaintiff's claim that the CUP process vests unbridled discretion in the City; and stating that plaintiff's claim only concerned his desire to open a shop at 316 Elm Street in the East Village Arts District, when this was just one of three locations that plaintiff initially identified in his letter to the City. The court held that plaintiff has standing to bring a facial first amendment challenge to the City's zoning ordinances where he was not required to first apply for, and then be denied, a CUP to bring this claim under a permitting system that allegedly gives City officials unfettered discretion over protected activity; plaintiff has standing to bring an as-applied First Amendment challenge to the City's zoning ordinances where it appeared likely that the City would take action against plaintiff if he opened a tattoo shop without a CUP; plaintiff raised a cognizable claim that the City's zoning ordinances constituted an unlawful prior restraint on speech; and plaintiff raised a cognizable claim that the City's ordinances constituted unlawful time, place, or manner restrictions on speech. Accordingly, the court reversed and remanded for further proceedings. View "Real v. City of Long Beach" on Justia Law

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In these consolidated appeals, appellants challenged the constitutionality of five city ordinances that regulate mobile billboards. One of the ordinances limits the type of sign that may be affixed to motor vehicles parked or left standing on public streets; the other ordinances prohibit non-motorized, “mobile billboard advertising displays” within city limits. Unlike the Supreme Court's recent decision in Reed v. Town of Gilbert, the mobile billboard ordinances in this case do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. The court explained that an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. Therefore, the court concluded that the district court appropriately found the ordinances to be content neutral. The court also concluded that none of the ordinances are substantially broader than necessary to accomplish the cities' goals of eliminating visual blight and promoting the safe and convenient flow of traffic. Furthermore, the mobile billboard ordinances leave open adequate alternative opportunities for advertising. Because the mobile billboard ordinances are content neutral, narrowly tailored to serve the government's significant aesthetic and safety interests, and leave open ample alternative channels of communication, the court affirmed the judgment. View "Lone Star Sec. & Video v. City of Los Angeles" on Justia Law

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Plaintiff and two other individuals, seeking to operate a gun shop in the County, challenged the County's ordinance which requires that the proposed location of the business is not within 500 feet of a residentially zoned district. The district court subsequently granted the County's motion to dismiss for failure to state claim. The court concluded that, because plaintiff's equal protection challenge is no more than a Second Amendment claim dressed in equal protection clothing, it is subsumed by, and coextensive with the former, and therefore is not cognizable under the Equal Protection Clause. Nor did plaintiff adequately plead a class-of-one Equal Protection claim where plaintiff acknowledges that gun stores are materially different from other retail businesses and therefore is not a similarly situated business. The court concluded that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms, and that the Ordinance's potential interference was a proper basis for plaintiff's Second Amendment challenge. Furthermore, the Ordinance burdens conduct protected by the Second Amendment and is subject to heightened scrutiny. Under this standard, the court concluded that the County failed to carry its burden of demonstrating that there was a reasonable fit between the challenged regulation and its asserted objective. In this case, the County failed to satisfy its burden because it never justified the assertion that gun stores act as magnets for crime. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Teixeira v. County of Alameda" on Justia Law

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Developers filed suit against the City, contending that the City’s refusal to rezone land to permit higher-density development violated, among other things, the Equal Protection Clause and the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq. Developers maintain that the City’s refusal stemmed from intentional discrimination against Hispanics and created a disparate impact. The court held that Developers presented plausible claims for relief for disparate treatment under the FHA and under the Equal Protection Clause where the City Council denied Developers’ request for rezoning despite the advice of its own experts to the contrary and in the context of what a reasonable jury could interpret as racially charged opposition by Yuma residents. Further, this was the only request for rezoning that the City had denied in the last three years. Because the complaint passes the plausibility bar given these circumstances, the court reversed and remanded. The court also reversed and remanded the grant of summary judgment for the City on the disparate-impact claim, rejecting the district court’s view that other similarly-priced and similarly modeled housing available elsewhere necessarily precluded a finding that there was a disparate impact. The court vacated the denial of the second summary judgment as moot and remanded for the district court to address the motion in the first instance. View "Avenue 6E Investments, LLC v. City of Yuma" on Justia Law

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Agnes and Anne Purdy dispute the State’s claim of ownership to rights-of-way for four public trails that cross the Purdys' land, seeking to stop members of the public from trespassing on their property by using the trails. The Purdys acquired ownership of the parcels in question under the Alaska Native Allotment Act, 43 U.S.C. 270–1 et seq. The State filed suit against the Purdys and the United States, contending that the Purdys' allotments are subject to rights-of-way. The State further alleges that, by virtue of public use, it acquired ownership of the rights-of-way under an unusual federal statute known as R.S. 2477. The district court dismissed the quiet title and declaratory judgment claims for lack of subject matter jurisdiction and entered partial final judgment under Federal Rule of Civil Procedure 54(b). The remainder of the action has been stayed pending resolution of this appeal. The court concluded that the district court correctly held that the State’s quiet title claim is barred because the United States is a necessary party to that claim but has not waived its immunity from suit pursuant to the Indian lands exception of the Quiet Title Act (QTA), 28 U.S.C. 2409a. The court also concluded that the district court correctly dismissed the State’s claim for declaratory relief under 28 U.S.C. 2201, which sought essentially the same relief as the quiet title claim. Although the district court had subject matter jurisdiction to hear the State’s condemnation claim, that claim may not proceed as pleaded. The court remanded as to this claim so that the State may be given an opportunity to amend the claim. Accordingly, the court affirmed in part, reversed in part, and remanded. View "State of Alaska Dept. of Nat. Res. v. United States" on Justia Law

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This appeal stems from a dispute between the future development of the historical heart of the Presidio of San Francisco, the Main Post. The Main Post is managed by the Trust, created by the Presidio Trust Act, 16 U.S.C. 460bb app. The Trust is governed by both the Presidio Trust Act and the National Historic Preservation Act (NHPA), 54 U.S.C.A. 300101 et seq. This appeal is limited to the Trust's amendment of the Presidio Trust Management Plan, which proposed a new lodge adjacent to the Presidio's Main Parade Ground. The court concluded that the Trust’s Update with respect to the proposed lodge and the offsetting demolition in the Main Post area is consistent with Section 104(c)(3) because it constitutes “replacement of existing structures of similar size in existing areas of development” under the Presidio Trust Act. The court also concluded that the Trust’s procedural undertakings meet the heightened standard of care imposed by Section 110(f) of the NHPA to undertake “to the maximum extent possible . . . such planning and actions as may be necessary to minimize harm to the landmark.” Accordingly, the court affirmed the judgment. View "Presidio Historical Ass'n v. Presidio Trust" on Justia Law

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The United States filed suit against E. Wayne Hage, who is now deceased, and his son, Wayne N. Hage, alleging that they grazed cattle on federal lands without a permit or other authorization. The court concluded that defendants' unauthorized grazing of cattle on federal lands was unlawful, and their water rights have no effect on the analysis. Further, defendants' counterclaim under the Administrative Procedure Act (APA), 5 U.S.C. 701(a)(2), is barred by the statute of limitations. The court reversed the judgment for defendants on their counterclaims and remanded with instructions that the district court enter judgment for the government; vacated the judgment with respect to the government’s trespass claims and remanded for reconsideration under the correct legal standard; and, on remand, the district court shall determine, among other things, whether the source of law - state law or federal law - has any effect on the calculation of damages. On remand, the court ordered the cased assigned to a different district judge. View "United States v. Estate of E. Wayne Hage" on Justia Law