Cases





ANNEXATION - GEORGIA

Cherokee County v. Inline Communities, LLC

Court of Appeals of Georgia - October 5, 2020 - S.E.2d - 2020 WL 5885934

County brought action against property owners, real estate developer, and city officials challenging city’s annexation of previously unincorporated property.

The Superior Court entered summary judgment upholding annexation’s validity, and county appealed.

The Court of Appeals held that:




MUNICIPAL ORDINANCE - ILLINOIS

Saladrigas v. City of O'Fallon

Appellate Court of Illinois, Fifth District - August 26, 2020 - N.E.3d - 2020 IL App (5th) 190466 - 2020 WL 5035901

Motor vehicle owners brought class action against city, alleging that city ordinance, which allowed impoundment of motor vehicles used for certain offenses and imposed a monetary charge, deprived them of substantive due process.

The Circuit Court granted summary judgment in favor of city based on finding that the charge constituted a fine. Vehicle owners appealed.

The Appellate Court held that ordinance’s monetary charge constituted a fee subject to due process analysis.

Monetary charge imposed by city ordinance allowing impoundment of motor vehicles used in certain offenses constituted a fee rather than a fine, and thus remand of trial court’s grant of summary judgment in favor of city in vehicle owners’ action challenging the ordinance was required in order to determine whether the charge was rationally related to the costs it was intended to recoup, for purposes of determining whether ordinance deprived vehicle owners of substantive due process; ordinance preamble stated that the purpose was to “recoup costs associated with processing certain arrests,” ordinance did not suggest that charge was intended to deter or punish crime, and charge was independent of a conviction for the underlying offense and did not require owners’ involvement in the offense.




EMINENT DOMAIN - MINNESOTA

County of Hennepin v. Laechelt

Supreme Court of Minnesota - September 30, 2020 - N.W.2d - 2020 WL 5807876

County brought quick-take eminent domain action to acquire temporary and permanent easements from multiple landowners.

After commissioner awarded landowner compensation, county appealed for a trial de novo, and filed motion in limine to preclude any evidence regarding construction-related interference that occurred after the date of the taking.

The District Court denied the motion, and, following jury trial, entered judgment awarding compensation and denied county’s motion for new trial. County appealed, and the Court of Appeals affirmed. The Supreme Court granted county’s petition for further review.

The Supreme Court held that evidence of construction-related interference, occurring after date of taking, that decreased the market value of the remainder property was admissible.




EMINENT DOMAIN - MISSISSIPPI

Kuhn v. High

Supreme Court of Mississippi - September 3, 2020 - So.3d - 2020 WL 5627275

Property owners filed petition to condemn a private road across neighbor’s property.

The Special Court of Eminent Domain granted petition. Neighbor appealed, and the Supreme Court reversed and rendered a judgment in neighbor’s favor. Neighbor then filed motion for award of attorney fees under eminent domain statute and the Special Court of Eminent Domain denied the motion. Neighbor appealed, and the Supreme Court reversed and remanded. On remand, neighbor filed amended motion for attorney fees that added a claim for frivolous filing attorney fees under the Litigation Accountability Act (LAA). The Special Court of Eminent Domain granted the motion, imposing the fees jointly and severally on property owners and their attorney, and denied property owners’ motion to reconsider. Property owners and attorney appealed.

The Supreme Court held that:




BONDS - NEW JERSEY

The Bondholder Committee on Behalf of the Owners of Quad Cities Regional Economic Development Authority First Mortgage Revenue Bonds Series 2013A v. Sauk Valley Student Housing, LLC

United States District Court, D. New Jersey - October 9, 2020 - Slip Copy - 2020 WL 5995617

Plaintiff bondholders filed suit alleging that Indenture Trustee BOK Financial (BOKF) breached its contract with and fiduciary duties to bondholders by failing to take necessary actions to secure payment on the bonds and failing to obtain required financial disclosures from the legal entities controlling the underlying student housing project.

Bondholders also brought claims against BMOC, a company that both manages and provides residential life services to student housing facilities. Bondholders alleged that BMOC contributed to three misleading documents that were ultimately incorporated into the materials used to market the bonds.

BOKF moved to dismiss.

The District Court held that:

 

 




IMMUNITY - NEW YORK

Ferreira v. City of Binghamton

United States Court of Appeals, Second Circuit - September 23, 2020 - F.3d - 2020 WL 5648230

Unarmed occupant of home subject to no-knock search warrant, who was shot in stomach by police officer during execution of search warrant, brought § 1983 and state-law action against city and officer who shot him, alleging violations of his constitutional rights by use of excessive force, negligence, and respondeat superior.

Following trial in which jury found in favor of plaintiff against city and awarded him $3 million in damages, but found in favor of officer, the United States District Court for the Northern District of New York granted city’s motion for judgment as a matter of law and set aside the damage award and denied plaintiff’s motion to overturn the verdict in favor of officer. Plaintiff appealed.

The Court of Appeals held that:




EMINENT DOMAIN - PENNSYLVANIA

In Re Condemnation of Land in Bristol Township

Commonwealth Court of Pennsylvania - August 28, 2020 - A.3d - 2020 WL 5083485

County redevelopment authority brought eminent domain action and condemned mortgagors’ property.

After redevelopment authority distributed just compensation in accordance with court order, mortgagee filed petition for appointment of board of viewers.

The Court of Common Pleas denied petition for lack of standing and subsequently denied mortgagee’s motion for reconsideration. Mortgagee appealed.

The Commonwealth Court held that:

Mortgagees, judgment creditors, and lienholders are not “condemnees” under the Eminent Domain Code and, thus, are not eligible to request the appointment of a board of viewers in condemnation proceedings; only condemnors, condemnees, and displaced persons are eligible.

Terms of mortgage did not comprehensively extinguish mortgagors’ rights in favor of mortgagee’s rights in condemnation proceedings, and thus there was no assignment pursuant to which mortgagor, which was not eligible to request board of viewers in condemnation proceedings under the Eminent Domain Code, could stand in the shoes of mortgagors and request a board of viewers as a “condemnee” after condemnation of mortgaged property; mortgage merely described what mortgagee could do to protect its interest in the property and contained no language expressly assigning rights.




IMMUNITY - CALIFORNIA

Koussaya v. City of Stockton

Court of Appeal, Third District, California - September 21, 2020 - Cal.Rptr.3d - 2020 WL 5626796 - 20 Cal. Daily Op. Serv. 9910 - 2020 Daily Journal D.A.R. 10,321

Having sustained serious injuries during her escape from armed robbers’ getaway vehicle, hostage sued city and its police department, as well as police captain and officer, asserting causes of action for assault and battery, intentional infliction of emotional distress, and general negligence.

The Superior Court entered summary judgment for city, police department, captain, and officer, and hostage appealed.

The Court of Appeal held that:




ANNEXATION - ILLINOIS

I-57 and Curtis, LLC v. Urbana and Champaign Sanitary District

Appellate Court of Illinois, Fourth District - August 26, 2020 - N.E.3d - 2020 IL App (4th) 190850 - 2020 WL 5036097

Landowner brought action against sanitary district, city, and other municipal defendants seeking to invalidate an intergovernmental contract that governed annexations of territory to the sanitary district.

The Circuit Court granted defendants’ motion for judgment on the pleadings. Landowner appealed.

The Appellate Court held that:




POLITICAL SUBDIVISIONS - KENTUCKY

Louisville & Jefferson County Metropolitan Sewer District v. Hill

Supreme Court of Kentucky - September 24, 2020 - S.W.3d - 2020 WL 5806523

African American former administration services manager for metropolitan sewer district brought action against district alleging violation of Whistleblower Act and racial discrimination in violation of Civil Rights Act.

The Circuit Court granted partial summary judgment for district. Manager appealed. The Court of Appeals affirmed in part and reversed in part. Both parties moved for discretionary review, which was granted.

The Supreme Court held that:

Metropolitan sewer district was not political subdivision of Commonwealth and, thus, it did not qualify as employer under Whistleblower Act; district was not entitled to sovereign immunity, as it was originally created by city and retained same characteristics of special district, including fiscal separation and freedom from constitutional limitations on indebtedness associated with tax collecting entities, district’s customers were ratepayers, not taxpayers, and district did not serve statewide need but rather served needs of discrete, localized geographic region




PUBLIC PENSIONS - MASSACHUSETTS

Winthrop Retirement Board v. LaMonica

Appeals Court of Massachusetts, Suffolk - September 9, 2020 - N.E.3d - 98 Mass.App.Ct. 360 - 2020 WL 5372164 - 2020 Employee Benefits Cas. 342,878

Police officer sought review of city retirement board decision to forfeit pension based on 1995 conviction for filing false income tax returns that did not disclose income received for cover up of video poker machine operation.

The Boston Municipal Court vacated decision. Board filed certiorari action. The Superior Court Department granted officer’s motion for judgment on the pleadings. Board appealed.

The Appeals Court held that:




ANNEXATION - MISSISSIPPI

Matter of Enlargement and Extension of Municipal Boundaries of City of Petal v. Gulf South Pipeline Company, LP

Supreme Court of Mississippi - September 10, 2020 - So.3d - 2020 WL 5642034

City petitioned to ratify proposed annexation of six square miles to city’s limits.

The Chancery Court granted the city’s petition, as modified, to correct errors from previous annexation that resulted in erroneous split of some parcels or tracts of land between city and county. City appealed.

The Supreme Court held that:




UTILITY FEES - NEBRASKA

Panhandle Collections, Inc. v. Singh

Court of Appeals of Nebraska - September 29, 2020 - N.W.2d - 28 Neb.App. 924 - 2020 WL 5778765

Collections agency brought action to collect on debt assigned to it by municipality.

The County Court found principal of business entity that owned the property was personally liable for unpaid sewer fees assessed against the property. Principal appealed, and the District Court affirmed the County Court’s decision. Principal appealed.

The Court of Appeals held that business entity that was record owner of property was indispensable party, and thus failure to join business entity was jurisdictional defect.

Business entity that was record owner of property where municipal sewer services were delivered was indispensable party in action brought to collect debt for unpaid sewer fees assessed against that property, and thus failure to join business entity was jurisdictional defect that deprived trial court of jurisdiction; collections agency acknowledged in its amended complaint that business entity owned the real estate where sewer services were delivered, and municipal ordinance pursuant to which collections action was brought provided that charges for sanitary sewer service were a lien upon the property.




EMINENT DOMAIN - OHIO

State ex rel. AWMS Water Solutions, L.L.C. v. Mertz

Supreme Court of Ohio - September 23, 2020 - N.E.3d - 2020 WL 5648287 - 2020 -Ohio- 4509

Saltwater injection well operator filed petition for writ of mandamus to compel state to commence property-appropriation proceedings, alleging that state’s suspension order with respect to one of its two wells effected a governmental total or partial taking of property requiring state to pay it just compensation.

State moved for summary judgment. The Eleventh District Court of Appeals granted the motion. Operator appealed.

The Supreme Court held that:




IMPROVEMENT DISTRICTS - OKLAHOMA

Toch, LLC v. City of Tulsa

Supreme Court of Oklahoma - September 29, 2020 - P.3d - 2020 WL 5796168 - 2020 OK 81

Hotel owner filed petition requesting declaration that city ordinance creating tourism improvement district was invalid.

The District Court granted summary judgment for hotel owner, and city filed petition in error.

The Supreme Court held that city did not exceed authority granted in tourism improvement district statute, which allows municipality to limit district to properties containing “a hotel or motel having 50 or more rooms” when it limited district to hotels with 110 or more rooms.

Hotel owner and operator met statutory prerequisite for bringing action to challenge creation of tourism improvement district, where owner brought the action on behalf of the parties that objected to the creation of the district, and while owner did not appear and object at hearing on the creation of the district, at least one party appeared at the hearing and filed a written objection on behalf of hotel.

Tourism improvement district statute allowing municipality to limit district “to only those properties within such geographical area on which a hotel or motel having 50 or more rooms available for occupancy” protects hotels with less than 50 rooms, but does not force municipalities to include all hotels with more than 50 rooms.

City did not exceed authority granted in tourism improvement district statute, which allows municipality to limit district to properties containing “a hotel or motel having 50 or more rooms” when it limited district to hotels with 110 or more rooms.

 




MUNICIPAL CORPORATIONS - PENNSYLVANIA

SEDA-COG Joint Rail Authority v. Carload Express, Inc.

Supreme Court of Pennsylvania - October 1, 2020 - A.3d - 2020 WL 5823494

Rail line authority brought action against unsuccessful bidder for private railroad operating agreement, seeking declaration that seven-to-three vote was ineffective to award the agreement, and bidder counterclaimed for a declaration that the vote was effective.

The Court of Common Pleas granted summary judgment to authority. Bidder appealed. The Commonwealth Court reversed and remanded. Authority sought a discretionary appeal, which was granted.

In a case of first impression, the Supreme Court held that:

Rail line authority’s board of directors’ vote of seven to three, with the six other directors attending meeting but abstaining from vote while remaining in room, was effective to award new operating agreement to bidder, and thus nine votes were not required to award agreement; Municipal Authorities Act provision stating that the authority could act upon vote of majority of “members present” at meeting did not supplant common law principle that authority could act by majority of members present and voting.

Alleged representational unfairness and disenfranchisement of region’s representation on rail line authority, which was a multi-member authority, was not a basis to allow authority’s preferred interpretation of phrase “members present” in the majority vote standard set forth in Municipality Authorities Act, to require a nine-vote majority instead of seven-to-three vote of its 16-member board of directors to award new operating agreement to bidder, in a vote with six directors present but abstaining from vote, even though a plurality vote potentially could carry the motion; Act contained provisions to provide for equal representation on boards of multi-member authorities, and authority could have amended its bylaws to require nine votes and provide for additional representational fairness.




IMMUNITY - ALABAMA

Ex parte Smith

Supreme Court of Alabama - September 4, 2020 - So.3d - 2020 WL 5268052

Director of county department of human resources, adult protective services caseworker, and others petitioned for a writ of mandamus directing the Circuit Court to vacate its order denying their motion for summary judgment, in wrongful death action filed by estate of mentally impaired adult who was found dead after leaving the licensed boarding home where she had been placed.

The Supreme Court held that director of county department of human resources, adult protective services caseworker, and others were entitled to statutory immunity.

Director of county department of human resources, adult protective services caseworker, and others were entitled to statutory immunity, in wrongful death action filed by estate of mentally impaired adult who was found dead after leaving boarding home where she had been placed; immunity provision applied to the arrangement of protective services and the placement of a client in an appropriate facility, adult’s treating physician opined that adult required adult protective services and recommended boarding home placement for adult with a guardian to assist with financial matters, and at the time of the placement adult could ambulate independently and could groom, bathe, dress, eat, and communicate without any help.




ATTORNEYS' FEES - CALIFORNIA

Vosburg v. County of Fresno

Court of Appeal, Fifth District, California - September 9, 2020 - Cal.Rptr.3d - 2020 WL 5377298 - 20 Cal. Daily Op. Serv. 9579 - 2020 Daily Journal D.A.R. 9881

City council members brought election contest against county and registrar of voters, alleging that patients committed to state psychiatric hospital within city illegally voted in city election despite not being city domiciliaries.

Unincorporated association of patients moved to intervene. Without ruling on intervention motion, trial court denied election contest, finding patients committed to psychiatric hospital could register to vote in county of commitment. Association moved for attorney fees under private attorney general statute. The Superior Court denied motion, finding association was not successful party. Association appealed.

The Court of Appeal held that:




PUBLIC UTILITIES - ILLINOIS

Berry v. City of Chicago

Supreme Court of Illinois - September 24, 2020 - N.E.3d - 2020 IL 124999 - 2020 WL 5668974

City residents brought class action against city on behalf of all residents, raising claims of negligence and inverse condemnation in relation to city’s replacement of water meters and water main pipes, as well as partial replacement of lead service lines that ran between water mains and residences throughout city. City moved to dismiss.

The Circuit Court granted motion. Residents appealed. The Appellate Court reversed and remanded. City petitioned for leave to appeal and petition was granted.

The Supreme Court held that:

City residents’ allegations that city’s actions in replacing water mains and meters created increased risk that lead would be dislodged or leach from residents’ individual service lines failed to allege cognizable injury, as required to state claim for negligence.

City residents’ allegations that city damaged proposed class members’ property while repairing and updating its water supply system, that city, when replacing water mains and meters, used copper or galvanized iron pipes to reconnect residents’ lead service lines to water supply system, and that this practice created increased risk of corrosion in service lines and, therefore, increased risk that lead would enter residents’ water supplies, failed to allege any measurable, pecuniary loss caused by city’s repair work, as required to state inverse-condemnation claim under Illinois Constitution, where residents did not allege that all service lines owned by proposed class members had been rendered completely unusable by city’s actions or were unfit for human use as matter of law.




BALLOT INITIATIVE - MAINE

Jones v. Secretary of State

Supreme Judicial Court of Maine - September 22, 2020 - A.3d - 2020 WL 5640271 - 2020 ME 113

Citizens petitioned for judicial review of Secretary of State determination that insufficient signatures had been collected to place on November ballot a people’s veto of an An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine.

The Superior Court vacated the determination and the Secretary and intervenors moved to stay the judgment pending their appeals, which were dismissed as moot due to automatic stay.

The Supreme Judicial Court held that requirement that a circulator be registered voters in the circulator’s municipality of residence while circulating a petition does not violate the First Amendment.

The requirement that a circulator be registered to vote in the circulator’s municipality of residence while circulating an initiative petition imposes only reasonable, nondiscriminatory restrictions on the First Amendment rights of petition supporters for the purpose of ensuring compliance with the residency requirement of the Maine Constitution, and thus does not violate petitioners’ First Amendment rights; burden of registering to vote in municipality was not severe, and registration was a simple and verifiable way for the Secretary of State to determine a person’s residency in Maine at the time of circulation of a petition.




EMINENT DOMAIN - MASSACHUSETTS

Town of Sudbury v. Massachusetts Bay Transportation Authority

Supreme Judicial Court of Massachusetts, Suffolk - September 22, 2020 - N.E.3d - 485 Mass. 774 - 2020 WL 5640524

Town brought declaratory judgment action against Massachusetts Bay Transportation Authority (MBTA), seeking to preclude MBTA from entering into option agreement with private electric company for easement to install electric transmission line underneath disused right of way extending through town.

The Land Court Department granted defendants’ motion to dismiss. Town appealed.

After transfer of case, the Supreme Judicial Court held that electric company’s proposed use of right of way was not a public use, and therefore doctrine of prior public use did not preclude MBTA from entering into option agreement for easement underneath right of way.

Privately-owned electric company’s proposed use of right of way owned by Massachusetts Bay Transportation Authority (MBTA), and currently used by public, to construct and operate underground transmission line was not a public use, and therefore doctrine of prior public use did not preclude MBTA from entering into option agreement with company for easement to install electric transmission line underneath right of way; company would pay taxes on transmission line as an asset and was entitled to earn a profit on its investment through rates.




ANNEXATION - MISSISSIPPI

Matter of Enlarging, Extending , and Defining Corporate Limits and Boundaries v. City of Laurel

Supreme Court of Mississippi - September 24, 2020 - So.3d - 2020 WL 5739303

After city enacted ordinance annexing four parcels of real property, neighboring city contested the annexation of one part of one parcel and community association entered an appearance to contest the annexation of that entire parcel.

After annexing city stipulated to exclude the part contested by neighboring city, the Chancery Court entered judgment after a bench trial approving the annexation. Community association appealed.

The Supreme Court held that:

Sufficient evidence supported chancellor’s finding that city’s sales tax revenue history indicated that city had a reasonable financial ability to provide municipal services to real property it proposed to annex, as factor relevant to determining whether the proposed annexation was reasonable; though city’s sales tax receipts had fluctuated, its receipts were trending upward, and expert witness testified that city’s receipts for most recent year would exceed the amount budgeted by the city.

Sufficient evidence supported chancellor’s finding that city’s plans for implementing and fiscally carrying out its proposed annexation of real property indicated that city had a reasonable financial ability to provide municipal services to the property it proposed to annex, as factor relevant to determining whether the proposed annexation was reasonable; city undertook extensive planning, including with respect to water and sewer improvements, which was the only area about which community association that opposed the annexation complained.

Sufficient evidence supported chancellor’s finding that city’s bonding capacity indicated that city had a reasonable financial ability to provide municipal services to real property it proposed to annex, as factor relevant to determining whether the proposed annexation was reasonable; expert witness testified that city had more than $5.6 million in bonding capacity, more than 18 years of clean audits, and an A-plus rating from rating agency.




BALLOT INITIATIVES - NEBRASKA

Thomas v. Peterson

Supreme Court of Nebraska - September 10, 2020 - N.W.2d - 307 Neb. 89 - 2020 WL 5506411

Challenger, who operated a delayed deposit services business, filed complaint and ballot title challenge against Attorney General and Secretary of State in their official capacities, alleging that explanatory statement and ballot title for initiative petition that sought to amend Delayed Deposit Services Licensing Act by establishing statutory cap on the annual percentage rate that could be charged by delayed deposit services licensees were insufficient and unfair.

After granting complaint in intervention filed by sponsors of initiative petition and following hearing, the District Court found that it lacked jurisdiction to review the explanatory statement and certified the ballot title prepared by the Attorney General. Challenger appealed, case was moved to the docket of the Supreme Court, and expedited review was granted.

The Supreme Court held that:

District court lacked jurisdiction to review the explanatory statement prepared by the Attorney General for initiative petition that sought to amend Delayed Deposit Services Licensing Act by establishing statutory cap on the annual percentage rate that could be charged by delayed deposit services licensees, since legislature did not provide courts with authority to review anything other than the ballot title.

In proceedings challenging ballot title prepared by Attorney General for initiative petition, deferential standard is to be applied to the ballot title, and a dissatisfied person must prove by the greater weight of the evidence that the ballot title is insufficient or unfair.

Ballot title prepared by the Attorney General for initiative petition that sought to amend Delayed Deposit Services Licensing Act by establishing statutory cap on the annual percentage rate that could be charged by delayed deposit services licensees was not insufficient or unfair due to description of licensees as payday lenders; term “payday lenders” appeared in the objective statement of the draft initiative petition and in Act, there was no indication that “payday lenders” was a slang term that created unfairness or that term would deceive or mislead voters regarding the initiative petition, and term was a commonly used term that supplemented statutory term and clarified the measure.




CIVIL RIGHTS - WASHINGTON

Rawson v. Recovery Innovations, Inc.

United States Court of Appeals, Ninth Circuit - September 9, 2020 - F.3d - 2020 WL 5405684 - 20 Cal. Daily Op. Serv. 9512 - 2020 Daily Journal D.A.R. 9819

Patient who was involuntarily committed at private hospital brought § 1983 action against operator of the hospital, hospital employee, and others, alleging that he was wrongfully detained, and forcibly injected with antipsychotic medications in order to support his involuntary commitment, in violation of his Fourth and Fourteenth Amendment rights.

The United States District Court granted summary judgment, in part, in favor of defendants. Patient appealed.

The Court of Appeals held that hospital operator and employees acted under color of state law, as required to support liability in patient’s § 1983 due process claim.

Operator of private hospital and private hospital employees acted “under color of state law” in allegedly continuing patient’s involuntary commitment for mental health treatment and forcibly medicating him, as required to support operator’s and employees’ liability in patient’s § 1983 due process claim; patient was committed pursuant to Washington’s Involuntary Treatment Act, state’s imprimatur was necessary to continue patient’s detention, state relied on hospital staff’s professional judgment to fulfill its constitutional obligations toward those it ordered involuntarily committed, employees communicated extensively with prosecutor regarding patient’s treatment and medical diagnosis in preparing involuntary commitment case, and operator leased private hospital premises from state.




IMMUNITY - NEBRASKA

Moser v. State

Supreme Court of Nebraska - September 4, 2020 - N.W.2d - 307 Neb. 1820 - 20 WL 5264814

Personal representative of inmate’s estate filed suit against State under State Tort Claims Act (STCA), arising out of inmate’s death by strangulation at hands of cellmate.

The District Court granted State’s motion to dismiss for lack of subject matter jurisdiction, based on determination that State was immune from suit. Personal representative appealed.

The Supreme Court held that:

If claim against State under STCA would not exist without assault or battery, it “arises out of” the assault or battery, within the meaning of the “intentional tort” exception to the State’s waiver of immunity from suit, regardless of whether the tortfeasor was a government actor; overruling Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447, and
Claims against State for negligence, negligence per se, and wrongful death of inmate arose out of assault or battery, within scope of intentional tort exception to State’s waiver of immunity from liability.




EMINENT DOMAIN - NEW JERSEY

State by Commissioner of Transportation v. St. Mary's Church Gloucester

Superior Court of New Jersey, Appellate Division - August 14, 2020 - A.3d - 2020 WL 4722822

After the Commissioner of Transportation condemned property for use in a highway construction project, Commissioner deposited an amount into court’s trust fund, and jury thereafter awarded property owner just compensation which exceeded the deposited amount.

In response to a dispute regarding interest due as part of just compensation award, the Superior Court issued order awarding simple interest at rate of six percent on the balance of just compensation. Commissioner appealed and property owner cross-appealed.

As a matter of first impression, the Superior Court, Appellate Division, held that enactment of the general repealer provision of Eminent Domain Act of 1971 impliedly repealed provision of statute governing acquisition of land for the construction of state highways, which mandated fixed six percent interest rate on just compensation awards.




EMINENT DOMAIN - NORTH DAKOTA

Cass County Joint Water Resource District v. Aaland

Supreme Court of North Dakota - September 15, 2020 - N.W.2d - 2020 WL 5525133 - 2020 ND 196

Joint Water Resource District applied for a permit to enter landowners’ properties to monitor environmental impacts in connection with flood control construction project.

The District Court granted the application, and denied landowners’ motion for stay pending appeal. Landowner filed motion to stay in the Supreme Court.

The Supreme Court held that:

Landowners would not suffer irreparable injury if denied stay, pending appeal, of grant of Water Resource District’s application for permit to enter their properties to conduct monitoring for flood diversion project, as landowners could bring an inverse condemnation action against the District to obtain money damages for any temporary or permanent taking.

Landowners would not suffer irreparable injury if denied stay, pending appeal, of grant of Water Resource District’s application for permit to enter their properties to conduct monitoring for flood diversion project, as landowners could bring an inverse condemnation action against the District to obtain money damages for any temporary or permanent taking.

Issuance of stay, pending appeal, of grant of Water Resource District’s application for permit to enter landowners’ properties to conduct monitoring for flood diversion project would result in substantial harm to District; stay could delay the project, and even if immediate construction was impractical due to litigation over construction permits, the District’s other project tasks of surveys and examinations required for the project’s environmental impact statement could continue.




PUBLIC UTILITIES - OHIO

In re Complaint of Direct Energy Business, L.L.C. v. Duke Energy Ohio, Inc.

Supreme Court of Ohio - September 17, 2020 - N.E.3d - 2020 WL 5551074 - 2020 -Ohio- 4429

Entity that served as meter-data-management agent for reseller of electric-generation services sought judicial review of decision of the Public Utilities Commission, which concluded that entity failed to provide adequate service required of public utilities.

The Supreme Court held that entity was not acting as a public utility in its capacity as meter-data-management agent for reseller.

Entity that served as meter-data-management agent for reseller of electric-generation services was not acting as a public utility in that capacity, and thus the Public Utilities Commission lacked jurisdiction over proceeding initiated by reseller, alleging that entity’s failure to calculate usage data for a large customer resulted in reseller’s overpayment to operator of wholesale-power market; there was no evidence that entity was engaged in the business of supplying electricity to reseller for light, heat, or power purposes, as relevant to the definition of “electric light company” in statute describing companies subject to Commission’s jurisdiction, the definition made no mention of metering, and there was no evidence that reseller was a “consumer” of electricity supplied by entity.




SCHOOL FINANCE - PENNSYLVANIA

Watters v. Board of School Directors of City of Scranton

United States Court of Appeals, Third Circuit - September 21, 2020 - F.3d - 2020 WL 5626539

Tenured teachers who were suspended as part of budget cuts brought action under § 1983 in state court against city, school district, and board of school directors, alleging claims for substantial impairment of their contractual rights in violation of the Contracts Clause of the Constitution, declaratory and injunctive relief, and violations of state law.

Following removal, the United States District Court granted in part defendants’ motion to dismiss. Teachers appealed.

The Court of Appeals held that:

Alleged impairment of tenured teachers’ contracts arising from teachers’ suspension, through application of legislative act, as part of budget cuts was necessary, supporting finding that suspensions did not violate Contracts Clause, where, according to teachers’ own complaint, school district did not consider impairing the teachers’ contracts on a par with other policy alternatives, and it did not resort to that measure when a more moderate course would serve its purposes equally well.

Alleged impairment of tenured teachers’ contracts arising from teachers’ suspension, through application of legislative act, as part of budget cuts was reasonable in light of circumstances, supporting finding that suspensions did not violate Contracts Clause, where school district gave effect to the teachers’ suspensions only after holding a public meeting and vote on the issue, and district afforded the teachers the opportunity to contest their suspensions through evidentiary hearings and post-hearing submissions.




PUBLIC PENSIONS - RHODE ISLAND

Andrews v. Lombardi

Supreme Court of Rhode Island - June 30, 2020 - 231 A.3d 1108 - 2020 Employee Benefits Cas. 241,187

Beneficiaries of city pension plans brought action against city, challenging passage of city ordinance suspending annual cost-of-living adjustments (COLAs) until pension fund achieved 70% funding level, and alleging claims including promissory estoppel and violation of the Contract Clauses and Takings Clauses of the state and federal constitutions.

The Superior Court granted partial summary judgment for city, then entered judgment for city following bench trial. Beneficiaries appealed.

The Supreme Court held that:




ZONING & PLANNING - SOUTH CAROLINA

Grays Hill Baptist Church v. Beaufort County

Supreme Court of South Carolina - September 16, 2020 - S.E.2d - 2020 WL 5542089

Church appealed County Planning Commission’s decision to deny church a construction permit to build a fellowship hall adjacent to its existing sanctuary.

The Circuit Court reversed. County and the United States, which had intervened, appealed, and the Court of Appeals reversed and reinstated the Planning Commission’s decision. The Supreme Court granted the church’s petition for writ of certiorari.

The Supreme Court held that:

Church fellowship hall was approved for development in original development permit, where permit approved development of the church’s entire 9.35 acre property as depicted in plat, and the narrative included in the permit application described both the church and the fellowship hall.

Certificate of compliance issued for church construction project did not effectively “close out” church’s development permit and preclude church from constructing fellowship hall as provided for in permit application and plat; permit itself indicated that it remained valid if substantial improvement occurred within two years of its issuance, and certificate of compliance did not state that its issuance served to close out the development permit.

Pursuant to development permit application, which contemplated phased construction of two church buildings, church had right to construction permit to build fellowship hall which was grandfathered by virtue of the continued validity of the original development permit, and was therefore not subject to new airport overlay district ordinance restriction; church sought a permit for the development of one, unified project consisting of church and fellowship hall as shown in plat, and church made substantial improvements toward both the construction of the church as well as the proposed construction of the fellowship hall, including paving roadways, constructing all of the parking, and installing storm water management, septic tanks, and drain fields for both buildings.




OPEN MEETINGS - ALABAMA

Casey v. Beeker

Supreme Court of Alabama - September 4, 2020 - So.3d - 2020 WL 5268491

Attendee of Public Service Commission (PSC) hearing regarding capacity-reservation charges, at which hearing, which was presided over by an administrative law judge (ALJ), attendee had her cellular telephone confiscated until she agreed not to record the hearing, brought action against individual PSC commissioners, in their official capacity, over allegation that the presence of the commissioners at the hearing constituted a “meeting” under the Open Meetings Act and that the commissioners’ failure to give the required notice under the Act and attendee’s inability to record the hearing violated the Act.

The Circuit Court entered a final judgment in favor of commissioners. Attendee appealed.

The Supreme Court held that the commissioners’ attendance at the hearing did not constitute a “deliberation” by the commissioners of a matter at the hearing.

Attendance by commissioners of the Public Service Commission (PSC) at a hearing regarding capacity-reservation charges, which was a hearing presided over by an administrative law judge (ALJ), did not constitute a “deliberation” by the commissioners of a matter at the hearing, and thus the commissioners’ attendance did not constitute a “meeting” by the commissioners under the Open Meetings Act; despite argument that commissioners sat at the bench during the hearing, that they heard expert testimony regarding the capacity-reservation charges, that they could have asked questions, and that one of them instructed the public to follow the ALJ’s directions not to record the hearing, nothing indicated that they exchanged any relevant information, much less relevant ideas, during the hearing.




BONDS - ALASKA

Forrer v. State

Supreme Court of Alaska - September 4, 2020 - P.3d - 2020 WL 5269487

Taxpayer brought action against the State and the Commissioner of the Department of Revenue in his official capacity, seeking declaratory and injunctive relief on the grounds that bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits violated state constitution.

The Superior Court granted State’s motion to dismiss for failure to state a claim, and taxpayer appealed.

The Supreme Court held that:

State’s submission of statutory history materials not in the pleadings did not require court to convert motion to dismiss into motion for summary judgment, although court did not take judicial notice of the history materials; complaint itself relied upon legislative history, and legislative history was publicly available.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits violated state constitution’s prohibition against state debt absent ratification by the voters.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits did not limit recourse to the leased property, as required pursuant to test of Carr-Gottstein Properties v. State, 899 P.2d 136, to determine whether a lease-purchase agreement is permissible under state constitution’s debt limitation provisions; rather, bondholders’ sole recourse was to legislatively appropriated funds, held by the corporation.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits created long-term obligation binding future generations or Legislatures, and thus violated test of Carr-Gottstein Properties v. State, 899 P.2d 136, for determining whether a lease-purchase agreement is permissible under state constitution’s debt limitation provisions; corporation’s sole function was to borrow money over several years to facilitate the purchase of existing oil and gas tax credits rather than permit those credits to be applied to future oil production taxes, and scheme’s very purpose was to create a long-term obligation even though there was none previously.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits was not merely refunding indebtedness of the state within exception to state constitution’s prohibition against incurring debt without referendum.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits did not establish revenue bonds within meaning of constitutional provision stating that restrictions on contracting debt do not apply to debt incurred through the issuance of revenue bonds by a public corporation; proposed corporation would have no actual revenues, and thus bonds were not tied to any self-sustaining enterprise, but rather bond payments would be made solely from annual legislative appropriations.

Subject-to-appropriation bonds are not revenue bonds under constitutional provision stating that restrictions on contracting debt do not apply to debt incurred through the issuance of revenue bonds by a public enterprise or public corporation.

Bonding scheme in statute creating public corporation capable of borrowing up to $1 billion through the issuance of subject-to-appropriation bonds to purchase outstanding oil and gas exploration tax credits was unconstitutional in its entirety, as subject-to-appropriation bonds, which violated state constitution’s debt restrictions, was the central pillar around which other minor provisions were erected; although scheme accomplished more than just establishing a corporation for issuing subject-to-appropriation bonds, those other provisions were inexorably linked to the proposed bonds, and legislation contained no express saving clause.




PUBLIC HOUSING - CALIFORNIA

Reilly v. Marin Housing Authority

Supreme Court of California - August 31, 2020 - P.3d - 2020 WL 5103649 - 20 Cal. Daily Op. Serv. 9170 - 2020 Daily Journal D.A.R. 9555

Following housing authority’s termination of mother of developmentally disabled daughter’s Section 8 housing voucher, mother filed petition for writ of mandate.

The Superior Court sustained authority’s demurrer. Mother appealed. First District Court of Appeal affirmed. Mother appealed.

The Supreme Court held that:




PUBLIC EMPLOYMENT - CALIFORNIA

Morgado v. City and County of San Francisco

Court of Appeal, First District, Division 4, California - August 26, 2020 - Cal.Rptr.3d - 2020 WL 5036169 - 20 Cal. Daily Op. Serv. 9076 - 2020 Daily Journal D.A.R. 9503

Non-probationary city police officer, whose employment was terminated following misconduct finding, brought action against city, seeking injunctive relief and writ of administrative mandate requiring reinstatement.

Trial court issued injunctive order requiring city to reinstate officer pending administrative appeal. City appealed. The Court of Appeal affirmed. After officer was reinstated but suspended without pay, officer moved to hold city in contempt for failure to comply with injunction, and trial court granted motion, ordering city to compensate officer with front pay and benefits lost and refrain from withholding pay and benefits. After city offset its payment to officer by the amount of side income officer earned after termination, officer moved for second order of contempt, and trial court granted motion. City applied for writ of mandate. The Court of Appeal issued writ, vacating second contempt order. The Superior Court, San found first contempt order did not permit city to deduct side income and ordered city to pay officer full amount deducted. City appealed.

The Court of Appeal held that:

In order to make police officer whole, city could take deductions from front pay, not only back pay, that it owed to officer based on his side income, following orders requiring city to reinstate officer’s employment pending administrative appeal of misconduct finding and to pay officer back pay and front pay; limiting deductions to back pay would result in taxpayer-subsidized windfall to officer.

Police department general order allowing police officers to engage in secondary employment with any necessary permission of chief of police and to retain all income earned thereby did not preclude city from setting off its payment of “make-whole” relief to officer, who was terminated from employment in violation of Public Safety Officers Procedural Bill of Rights Act, in the amount of side income officer would not have earned but for his termination; offset of “make-whole” relief would not prevent officer from retaining income he earned in side job.

Police officer’s secondary employment as mortgage broker, which he performed after termination and during post-reinstatement period of suspension from work as officer, was incompatible with employment as officer, and, thus, city could deduct officer’s side income from mortgage broker job from front and back pay it owed to officer as make-whole relief from improper termination and suspension; officer would not have been able to work as mortgage broker absent his termination and suspension from primary employment.

Deductions that city could take from payment of back pay and front pay it owed to police officer as make-whole relief from improper termination and suspension were limited to amount of post-tax income officer earned at secondary job, not pre-tax income; deducting entirety of secondary income from pay owed to officer would deprive officer of money he was properly owed and did not otherwise retain from secondary employment.




LIABILITY - GEORGIA

Picklesimer v. City of Eatonton

Court of Appeals of Georgia - August 28, 2020 - S.E.2d - 2020 WL 5086413

Husband and wife brought action against city and its public works superintendent for injuries wife sustained when their vehicle ran off the road and for damages for husband’s loss of consortium.

The Superior Court dismissed the complaint on the ground that ante litem notice did not comply with statutory requirements. Plaintiffs appealed.

The Court of Appeals held that plaintiffs’ ante litem notice did not substantially comply with ante litem notice statute.

Husband and wife’s ante litem notice did not substantially comply with ante litem notice statute, in their action against city and its public works superintendent for injuries wife sustained when their vehicle ran off the road and for damages for husband’s loss of consortium; plaintiffs’ statement that claim likely exceeded $100,000 merely provided an estimate of potential damages and was not the specific amount of monetary damages being sought, statement was not specific enough to constitute an offer of compromise that could be accepted, and fact that city could investigate claim in response to notice did not remedy plaintiffs’ failure to comply with ante litem notice statute.




MUNICIPAL GOVERNANCE - OHIO

State ex rel. Syx v. Stow City Council

Supreme Court of Ohio - September 11, 2020 - N.E.3d - 2020 WL 5494327 - 2020 -Ohio- 4393

City brought expedited election action for writ of mandamus compelling city council to hold an administrative vote on nine amendments to the city charter proposed by the charter review commission and to issue ordinance certifying the amendments for placement on the general election ballot.

The Supreme Court held that:

Expectation of an impending opinion from outside counsel was not valid excuse to avoid laches defense for city’s delay in filing action for writ of mandamus ordering city council to hold an administrative vote on nine amendments to city charter proposed by charter review commission and to issue ordinance certifying the amendments for placement on general election ballot, where city council asserted that outside-counsel agreement was not signed until after lawsuit had been filed.

High number of personal and professional obligations of attorneys in city office was not valid excuse to avoid laches defense in expedited election case seeking writ of mandamus ordering city council to hold an administrative vote on nine amendments to city charter proposed by charter review commission and to issue ordinance certifying the amendments for placement on general election ballot; city asserted that delay was excusable because exhibits were voluminous and its attorneys had to juggle the case with other cases and priorities, but that assertion ignored fact that similar argument could likely be made in every election case and, if successful, would swallow the doctrine of laches.

City’s unreasonable three-week delay in filing expedited election action for writ of mandamus requiring city council to hold an administrative vote on nine amendments to city charter proposed by charter review commission and to issue ordinance certifying the amendments for placement on general election ballot prejudiced the city council, and thus action was barred by laches, where delay brought case so close to the statutory deadlines for finalizing ballots that court was forced to make the case an emergency that gave city council significantly less time to prepare and defend against claims than they would have had under an already expedited schedule.

City did not have clear legal right to requested relief, nor was there clear legal duty on party of city council or board of elections to provide it, and thus, city was not entitled to writ of mandamus requiring city council to hold an administrative vote on nine amendments to city charter proposed by charter review commission and to issue ordinance certifying the amendments for placement on general election ballot, to extent that city charter failed to clearly specify parameters of required approval of charter review commission’s proposed charter amendments.




MUNICIPAL CORPORATIONS - OREGON

City of Damascus v. State by and through Brown

Supreme Court of Oregon, En Banc - September 3, 2020 - P.3d - 367 Or. 41 - 2020 WL 5248515

Taxpayer petitioned for direct and expedited review of Senate Bill that presented voters with an alternative mechanism for the disincorporation of city.

The Supreme Court held that:




PUBLIC UTILITIES - CALIFORNIA

Riverside County Transportation Commission v. Southern California Gas Company

Court of Appeal, Fourth District, Division 2, California - August 24, 2020 - Cal.Rptr.3d - 2020 WL 4932129 - 20 Cal. Daily Op. Serv. 9035 - 2020 Daily Journal D.A.R. 9334

County transportation commission brought action against gas company for breach of pipeline licenses, reimbursement of gas pipeline relocation costs, trespass, quiet title, and declaratory relief. Gas company moved for summary judgment or summary adjudication, and commission cross-moved for summary adjudication of breach of licenses, reimbursement, and trespass claims.

The Superior Court granted summary adjudication in favor of gas company on claims for trespass, quiet title, and declaratory relief, summarily adjudicated reimbursement claim in favor of commission, and otherwise denied motions. Parties stipulated to dismiss remaining claims with prejudice, and after entry of final judgment, commission appealed and gas company cross-appealed.

The Court of Appeal held that:

Public Utility Commission (PUC) did not have exclusive jurisdiction over dispute between gas company and county transportation commission regarding extension of rail line that required relocation of gas pipelines, where no statute provided PUC with jurisdiction over county transportation commission as public entity.

County transportation commission’s voluntary dismissal, with prejudice, of its claim against gas company for breach of license agreements, after trial court granted commission’s motion for summary judgment on its claim for reimbursement of utility relocation costs based on licenses, did not preclude commission’s recovery on its claim for reimbursement under doctrines of res judicata or collateral estoppel; trial court’s judgment was not final for purposes of res judicata or collateral estoppel while appeal was pending, and grant of summary judgment on reimbursement claim fully compensated commission for same loss underlying breach of license agreements claim, such that commission had no reason to continue pursuing breach of license agreements claim and no threat of double recovery existed.

Citation in amicus brief to provision of Civil Code governing scope of transfers, which was not contained in arguments before trial court, did not present new issue for the first time on appeal, and, thus, Court of Appeal would consider provision in determining whether licenses were included as part of transfer or property; newly-cited statutory provision merely supported transferee’s timely-asserted and thoroughly-litigated argument that licenses were included in transfer of property, rather than raising new argument altogether, and citation of case, statute, or authority that was not cited below fell squarely within role of amicus curiae.

Right under pipeline licenses to compel gas company to remove pipelines was reasonably essential to beneficial use and enjoyment of railroad property on which pipelines were placed, and, thus, transfer of property from railroad company to county transportation commission included assignment of licenses, even though agreement for transfer of property provided that property and licenses would be conveyed by separate documents, where property transferred consisted of rail line that commission intended to expand, parties to property transfer agreement did not intend to prevent licenses from transferring with property, and property transfer agreement conveyed title “subject to” licenses.

Assignment of pipeline licenses, along with conveyance of property, from railroad company to county transportation commission was voidable, not void, and, thus, gas company as third-party licensee lacked standing to challenge assignment of licenses based on any defect in assignment, where agreement for conveyance of property gave commission ongoing power to demand that railroad company complete assignment of licenses if any defect were present, and only parties to agreement had authority to ratify or extinguish assignment of licenses pursuant to agreement.

County transportation commission ratified pipeline licenses that were purportedly transferred to it along with railroad property, and, thus, transfer of property did not revoke licenses; only commission, as transferee, had authority to invoke general rule that license is revoked by conveyance of land, and commission’s acceptance of benefits of licenses, including provisions allowing commission to terminate licenses and demand that licensee remove pipelines, constituted ratification.

County transportation commission’s agreement to purchase property from railroad company, which provided that railroad company would give written notice of assignment of pipeline licenses associated with property, did not give gas company an enforceable right as licensee to written notice of assignment; agreement specifically stated it had no third-party beneficiaries.

Gas company’s contractual duty to remove pipelines from property survived termination of license agreements, where license agreements specifically provided that gas company, as licensee, had obligation to abandon use of pipeline and remove it upon termination of license and demand of licensor.

Pipeline license agreements required gas company, as licensee, to remove pipelines at its own expense upon termination of licenses, where agreements required removal of pipelines upon termination of licenses and did not provide for any compensation for removal.

Jurisdiction of Public Utility Commission (PUC) over railroad crossings did not preclude city from granting franchises to allow gas company to run pipelines across railroad’s property; constitutional provision governing local utilities regulation preserved city’s right to grant franchises for public utilities as exception from PUC’s otherwise-exclusive jurisdiction.

City’s street right-of-way over railroad’s property authorized city to grant public utility franchise to gas company to place pipeline beneath right-of-way without railroad’s permission, and, thus, gas company’s placement and operation of pipeline pursuant to franchise did not constitute trespass on railroad’s property, where pipeline was means for transporting commodity, pipeline served public interest, and pipeline did not unduly endanger or interfere with use of property for railroad purposes at time city granted franchise.

County transportation commission’s purpose of requiring relocation of pipeline to make way for extension of existing rail line was proper governmental purpose, and, thus, commission was acting in its governmental capacity, such that it could require gas company, as utility franchisee, to bear its own costs of relocating all pipeline equipment under common law rule of franchise relocation; commission was governmental entity with authority to acquire, construct, maintain, and operate public transit systems.

Provisions in property purchase agreement and deeds conveying railroad’s “right, title, and interest” in “the land” to county transportation commission subject to “all applicable laws” did not render gas pipeline licenses, which agreement required railroad to assign to commission, subject to gas company’s rights as utility franchisee; commission’s rights under licenses were not “land” or real property, commission’s assumption of title subject to franchises did not abrogate licenses, which provided separate rights from those deriving from franchise city granted to gas company prior to gas company’s entry into license agreement with railroad, and deeds and agreement did not purport to surrender commission’s common law right as governmental entity to require relocation of franchise equipment.




ZONING & PLANNING - CONNECTICUT

Jeweler v. Town of Wilton

Appellate Court of Connecticut - September 1, 2020 - A.3d - 199 Conn.App. 842 - 2020 WL 5105071

Property owners brought action seeking declaratory judgment that proposed boundary line adjustments involving reconfiguration of lot lines in existing resubdivision to make three lots bigger and a fourth lot smaller did not require subdivision approval by town planning and zoning commission.

The Superior Court entered a declaratory judgment in favor of town. Owners appealed.

The Appellate Court held that:

Proposed boundary line adjustments reconfiguring lot lines in existing resubdivision, to increase size of three lots by transferring segments of land from a fourth adjoining lot, did not constitute a “subdivision” requiring approval by town planning and zoning commission; proposal merely reconfigured contours of four existing lots, and did not divide fourth lot into three or more lots.

Proposed boundary line adjustments reconfiguring lot lines in existing resubdivision, to increase size of three lots by transferring segments of land from a fourth adjoining lot, did not constitute a “resubdivision” that would require approval by town planning and zoning commission, even though the fourth lot would be reduced in size; same number of lots existed before and after proposed changes.




IMMUNITY - MARYLAND

Baltimore City Police Department v. Esteppe

Court of Special Appeals of Maryland - August 27, 2020 - A.3d - 2020 WL 5051552

Exonerated arrestee brought action against police officer, city police department, mayor, city council, and state for false arrest, civil conspiracy, negligence, violations of Maryland Declaration of Rights, and other claims.

Trial court dismissed claims against all defendants other than officer. Following trial, trial court entered judgment in favor of arrestee on negligence, constitutional tort, and civil conspiracy claims, and after officer appealed, the Court of Special Appeals affirmed. Arrestee filed motion styled as seeking declaratory relief to enforce judgment against city and police department under Local Government Tort Claims Act (LGTCA). The Circuit Court granted motion in part, finding police department was liable for judgment entered against officer. Police department appealed.

The Court of Special Appeals held that:

Court of Special Appeals would construe exonerated arrestee’s purported motion for declaratory relief to enforce judgment against police department as motion for summary judgment, where motion, in substance, sought to determine police department’s liability under Local Government Tort Claims Act (LGTCA) for judgment entered against police officer on arrestee’s claims for civil conspiracy, constitutional tort, and negligence, and arrestee did not bring separate declaratory judgment action.

Under the Local Government Tort Claims Act (LGTCA), a tort victim may file an enforcement action against a local government to compel it to pay a judgment awarded against its tortfeasor employee; in such an action, the tort victim seeks a judgment against the local government for payment of the underlying judgment against the tortfeasor employee.

Availability of enforcement action for judgment creditor to pursue claim against judgment debtor’s employer, a police department, under Local Government Tort Claims Act (LGTCA) did not preclude judgment creditor from seeking declaratory relief regarding police department’s liability under LGTCA; declaratory judgment proceeding was not required to be sole remedy available.

At the point when a tort victim seeks to establish a local government’s obligation to pay an underlying judgment against a tortfeasor employee under the Local Government Tort Claims Act (LGTCA), through an enforcement action, a declaratory judgment action, or some combination of the two, the tort victim’s claim is no longer against the employee for the underlying tort, but against the local government he or she contends has become liable to pay the judgment under the LGTCA; that local government must, therefore, be made a party and given the opportunity to be heard.

Determination of whether police officer’s tortious conduct against arrestee arose in the scope of his employment, as necessary for police department to be liable to arrestee under Local Government Tort Claims Act (LGTCA), could be made after entry of judgment on tort claims against police officer, and, thus, arrestee could seek enforcement of police department’s obligation to pay already-entered judgment either as separate action or within underlying tort action, without any party having raised scope-of-employment issue during tort action; police department’s liability under LGTCA depended on factual scope-of-employment issue that was not an element of underlying tort claims, and LGTCA did not explicitly require scope-of-employment issue to be raised immediately after underlying verdict.

Although a local government is not obligated to intervene in an underlying tort action against its employee in order to file a declaratory judgment action challenging its obligation to pay an underlying judgment under the Local Government Tort Claims Act (LGTCA), neither is it prohibited from doing so; if the local government is aware that a demand under the LGTCA is forthcoming, it is not precluded from raising the issue promptly after a verdict is rendered against the employee tortfeasor.

Police officer’s conduct in fraudulently obtaining and executing search warrant, leading to underlying judgment against police officer in arrestee’s underlying tort action, was not in furtherance of police department’s business, and, thus, officer’s conduct did not fall within scope of his employment, as necessary for police department to be liable for tort judgment under Local Government Tort Claims Act (LGTCA), even though officer’s discovery of contraband firearm during search served law enforcement objective; warrant was authorized only as a result of officer’s perjurious allegation that arrestee was drug dealer, which was motivated solely by officer’s personal vendetta, and officer had no reason to believe arrestee engaged in illegal possession of firearms.




REFERENDA - NORTH DAKOTA

Haugen v. Jaeger

Supreme Court of North Dakota - August 25, 2020 - N.W.2d - 2020 WL 5001834 - 2020 ND 177

Petitioners filed petition seeking writ enjoining Secretary of State from placing initiated measure on ballot.

The Supreme Court held that measure violated constitution’s full-text requirement.

Initiated measure amending state constitution concerning elections and legislative districting violated constitution’s full-text requirement, where petition section dealing with transmission of ballots to overseas military members provided that it “shall apply for all elections covered in N.D.C.C. section 16.1-07-19,” but did not include text of that statute.




REFERENDA - OHIO

State ex rel. Nauth v. Dirham

Supreme Court of Ohio - August 26, 2020 - N.E.3d - 2020 WL 5036052 - 2020 -Ohio- 4208

Citizens group sought a writ of mandamus directing members of the county board of elections to certify as valid 47 signatures the board had invalidated, thereby qualifying their referendum petition for the November general-election ballot.

The Supreme Court held that:

Citizens group’s mandamus action was not rendered moot, even though they had originally sought to have their referendum included in the November 2019 general-election and that election had passed; the fact that citizens group listed the November 2019 election as the election it sought to have its referendum on the ballot was of no legal significance as the appropriate election date for a valid referendum petition was not a matter of the proponents’ choosing and was based on application of statute, and, pursuant to statute, the referendum petition could not appear on the ballot until November of 2020.

Citizens group was not barred from bringing mandamus action challenging the invalidation of signatures on referendum petition based on the doctrine of laches, even though the mandamus action was not filed until five months after county board of elections rejected the petition, as there was no indication the board was prejudiced by the delay because, even if citizens group had acted sooner, the November 2020 election was the earliest election in which the referendum could appear on the general-election ballot, pursuant to statute.

Citizens group failed to establish that county board of elections abused its discretion by not holding a hearing on their protest of the board’s invalidation of signatures on their referendum petition; there was no statutory mechanism for a referendum proponent to protest a finding by a board of elections that a petition contained an insufficient number of signatures, and even if the right to have petition signatures properly validated was a protected liberty interest for due-process purposes, a mandamus action provided all the process that relators were due.

Citizens group failed to establish by clear and convincing evidence that any of the 47 signatures on referendum petition that they alleged county board of elections improperly invalidated were invalidated at all, much less that they were invalidated for not matching the alleged signers’ voter-registration cards, and thus citizens group was not entitled to writs of mandamus validating the signatures and enabling referendum to be placed on general-election ballot; no evidence was submitted showing which signatures were invalidated by the board, or the reason why the signatures were invalidated.

Citizens group failed to establish by clear and convincing evidence that any of the 47 signatures on referendum petition that they alleged county board of elections improperly invalidated were invalidated at all, much less that they were invalidated for not matching the alleged signers’ voter-registration cards, and thus citizens group was not entitled to writs of mandamus validating the signatures and enabling referendum to be placed on general-election ballot.




UTILITIES - SOUTH DAKOTA

City of Rapid City v. Schaub

Supreme Court of South Dakota - September 2, 2020 - N.W.2d - 2020 WL 5240386 - 2020 S.D. 50

Defendant was convicted, following magistrate court trial, of violating municipal ordinance requiring permit for onsite wastewater system. He appealed.

The Circuit Court affirmed. Defendant appealed.

The Supreme Court held that:

City’s sewerage permit ordinance was not an ex post facto law as applied to property owner whose onsite wastewater system may have existed prior to enactment of ordinance, where resident’s failure to obtain permit for his wastewater system occurred well after city enacted its ordinance.

Municipal ordinance requiring permits for onsite wastewater systems did not conflict with state administrative regulations promulgated by Department of Environmental and Natural Resources (DENR) concerning onsite wastewater systems; ordinance did not require standards for onsite wastewater systems.

City had authority to enforce municipal sewerage ordinance beyond its municipal boundaries; statute provided that municipalities had express authority to protect their water supplies within one mile of limits of municipality.




ZONING & PLANNING - CALIFORNIA

Redondo Beach Waterfront, LLC v. City of Redondo Beach

Court of Appeal, Second District, Division 3, California - July 9, 2020 - 51 Cal.App.5th 982 - 265 Cal.Rptr.3d 556 - 20 Cal. Daily Op. Serv. 6861 - 2020 Daily Journal D.A.R. 7200

Real estate developer brought actions against city, seeking declaratory judgment that it had obtained statutory vested rights regarding waterfront development project against city which vested before passage of initiative that would substantially curtail project.

Individual residents and resident groups intervened. The Superior Court entered judgment on pleadings for developer, and denied residents and groups’ motion for attorney fees and litigation costs. Residents and groups appealed, and appeals were consolidated.

The Court of Appeal held that:

Real estate developer’s right to proceed with waterfront development project vested as to the city before passage of initiative that would substantially curtail project, as developer submitted an application for vesting tentative tract map to city, and city notified developer in writing that application was “deemed complete.”

California Coastal Act did not preclude real estate developer’s statutory vested rights claims as to city waterfront development project, to extent claims related to development in coastal zone; Act and its provision for oversight of local land use decisions in coastal zones coexisted with statutory vested rights provision, and such vested rights flowing from local agency’s approval of vesting tentative map bound the local agency, not the state.

Real estate developer’s action against city, seeking declaratory judgment that it had obtained statutory vested rights regarding waterfront development project against city which vested before passage of initiative that would substantially curtail project, constituted an “actual controversy” ripe for adjudication; city took position that agreement’s force majeure clause had been triggered and that some of its obligations under agreement could be impacted by initiative, and it also suggested it believed the project could be impacted by amendments to local coastal program contained in initiative, virtually guaranteeing a future controversy relating to legal rights and duties of parties.




MUNICIPAL CORPORATIONS - CALIFORNIA

Lona v. City of Fullerton Police Department

Court of Appeal, Fourth District, Division 3, California - August 24, 2020 - Cal.Rptr.3d - 2020 WL 4933571 - 20 Cal. Daily Op. Serv. 9030

Requester, an admitted former member of a criminal street gang, filed a petition against city police department requesting removal of his name from a shared gang database that listed him as a suspected gang member or associate.

The Superior Court denied requester’s petition. Requester appealed.

The Court of Appeal held that:




BALLOT INITIATIVE - MAINE

Avangrid Networks, Inc. v. Secretary of State

Supreme Judicial Court of Maine - August 13, 2020 - A.3d - 2020 WL 4692295 - 2020 ME 109

Power company brought action for declaratory judgment, seeking to enjoin Secretary of State from placing citizen initiative on ballot, which initiative proposed resolve that would reverse Maine Public Utilities Commission order granting power company’s request for certificate of public convenience and necessity for transmission line.

Business-advocacy organization and consumer-advocacy organization intervened and joined power company’s complaint. Citizens’ group and individual voters also intervened and moved to dismiss. The Superior Court granted motion. Power company and advocacy organizations appealed. Secretary, citizens’ group, and voters cross-appealed.

The Supreme Judicial Court held that:

Question of whether subject matter of proposed citizen initiative, which would have reversed Maine Public Utilities Commission order granting power company’s request for certificate of public convenience and necessity for transmission line, was within scope of people’s right to initiate legislation was ripe for judicial review; plainly, proposal that was outside scope of people’s right to initiate legislation could not, as constitutional matter, proceed to electorate as direct initiative.

Citizens’ initiative, which would have reversed Maine Public Utilities Commission order granting power company’s request for certificate of public convenience and necessity for transmission line, did not propose legislation, and thus initiative was not within citizens’ power under Maine Constitution to enact legislation, where initiative, although labeled a “resolve,” directed Commission, in exercising its executive adjudicatory powers, to reverse its findings and reach different outcome in already-adjudicated matter.




BONDS - MISSOURI

Platte County v. UMB Bank, N.A., Trustee of Transportation Refunding and Improvement Bonds (Zona Rosa Retail Project) Series, 2007

Missouri Court of Appeals, Western District - August 25, 2020 - S.W.3d - 2020 WL 4941592

In October, 2007, the Industrial Development Authority of Platte County (“Development Authority”) issued the Zona Rosa Bonds in the amount of $32,200,000. The Zona Rosa Bonds provided funding for the construction of parking garages at an outdoor shopping mall located in Platte County, Missouri. The Zona Rosa Bonds are revenue bonds.

Subsequently, Trustee sent the County written notice of default under the Financing Agreement and threatened to sue the County unless it issued a binding written commitment to pay the revenue shortfall on the debt service.

In connection with the issuance of the Zona Rosa Bonds, the Development Authority executed the Trust Indenture with Trustee and the Financing Agreement with the County, and Platte County, Missouri South Transportation Development District I and District II (“Districts I and II”). Pursuant to the Trust Indenture, Trustee agreed to undertake certain duties and responsibilities as corporate trustee of the Zona Rosa Bonds and represents the interests of the holders of the Zona Rosa Bonds (“Bondholders”). Under the terms of the Trust Indenture and the Financing Agreement, the Development Authority assigned its rights under the Financing Agreement to Trustee.

Districts I and II are special taxing districts formed under state law to support transportation-related retail projects like the parking garages at Zona Rosa. Pursuant to the Financing Agreement, the Zona Rosa Bonds are paid from revenues generated by a 1% sales tax collected by Districts I and II on retail sales within their respective boundaries, which includes Zona Rosa. The County does not control or operate Districts I or II. Instead, Districts I and II are distinct legal entities that collect the 1% sales tax at Zona Rosa.

Article II of the Financing Agreement outlines the obligations of the County, which provides:

Section 2.2. Annual Appropriations. The County intends, on or before the last day of each Fiscal Year, to budget and appropriate, specifically with respect to this Agreement, moneys sufficient to pay the Appropriation Amount for the next succeeding Fiscal Year. The County shall deliver written notice to the Trustee no later than 15 days after the commencement of its Fiscal Year stating whether or not the County Commission has appropriated funds in an amount equal to the Appropriation Amount estimated to become due during such Fiscal Year. Notwithstanding any provision in the Indenture or herein to the contrary, if the Letter of Credit is in effect, the parties hereto agree that such Letter of Credit shall be drawn on prior to any payment of the Appropriation Amount by the County.

Section 2.3. Annual Budget Request. The County further covenants that its responsible financial officer3 shall do all things lawful within his power to obtain and maintain funds from which the Appropriation Amount may be paid, including making provision for such payments to the extent necessary in each proposed budget or appropriation request submitted for adoption in accordance with applicable provisions of law and to exhaust all available reviews and appeals in the event such portion of the budget or appropriation request is not approved; it being the intention of the County that the decision to appropriate or not to appropriate under this Agreement shall be made solely by the County Commission and not by any other official of the County.

Section 2.4. Appropriation to Constitute Current Expenses. The parties hereto acknowledge and agree that the Appropriation Amount shall constitute currently budgeted expenditures of the County and shall not in any way be construed or interpreted as creating a liability or a general obligation or debt of the County in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by the County, nor shall anything contained herein constitute a pledge of the general credit, tax revenues, funds or moneys of [the] County. The County’s obligations under this Agreement shall be from year to year only, and shall not constitute a mandatory payment obligation of the County in any ensuing Fiscal Year beyond the then current Fiscal Year.

The court concluded that, “The plain and ordinary meaning of the language used in these provisions supports the trial court’s Judgment that the Financing Agreement does not contain a promise by the County to pay on the Zona Rosa Bonds.”

The court then turned to Trustee’s contention that the County had a moral obligation to pay the revenue shortfall on the debt service.

A moral obligation is a form of credit enhancement typically provided by a government to another entity. Generally, a highly credit-worthy government pledges its ‘moral obligation’ to enhance a specific borrowing by a government of lesser credit quality. The debt is usually issued by a separate government entity, and the morally obligated government typically pledges to consider appropriating funds to replenish a debt service reserve that has been drawn upon. Creditor recourse in the event of non-payment is very limited for moral obligations, which, as the name suggests, are based more on good faith and a belief in market discipline than on legally enforceable covenants…. The moral obligation pledge is neither a guarantee to pay debt service or replenish a debt service reserve, nor is it a legal obligation to seek appropriation to pay for debt service or refill a reserve. Rather, it is the declaration that the pledging entity intends to support the debt with appropriations and will consider providing funding under certain circumstances…. While a moral obligation is weaker than a legal obligation to pay debt service, the entity providing the moral obligation pledge is signaling its support for the transaction to investors. Therefore, as with lease-backed obligations and non-lease annual appropriation obligations, the failure of a government to honor its moral obligation commitment is generally an indicator of severe stress that would likely result in negative rating action on the government’s [general obligation] rating. Similarly, in weighing the decision whether or not to honor a moral obligation, governments typically consider the market impact of the decision. The potential impact is usually sufficient to motivate the government to make the moral obligation appropriation, absent severe stress.

The court concluded that, “County did not promise to use best or reasonable efforts to pay, County did not promise to pay at all. It is undisputed that the Zona Rosa Bonds are revenue bonds to be paid from the 1% sales tax collected by Districts I and II. A Letter of Credit was also in place as was a Reserve Fund. Under the express and plain terms of the Financing Agreement, the County was never obligated to pay the shortfall on the Zona Rosa Bonds.”

 




SCHOOL DISTRICTS - MONTANA

Poplar Elementary School District No. 9, v. Froid Elementary School District No. 65

Supreme Court of Montana - August 25, 2020 - P.3d - 2020 WL 5014937 - 2020 MT 216

Elementary school district appealed a decision of the deputy county superintendent of schools approving a transfer of territory from district to a neighboring elementary school district.

The District Court vacated the decision. Receiving district appealed, and the Supreme Court reversed and remanded. After a new transfer petition was filed, transferring district appealed the decision of the acting county superintendent of schools approving the transfer. The District Court affirmed the decision. Transferring district appealed, and Attorney General intervened to defend the constitutionality of the territory transfer statute.

The Supreme Court held that:

Sufficient evidence supported finding by acting county superintendent of schools that transfer of territory from elementary school district to neighboring district would reduce the transferring district’s bonding capacity by 15.47%, as factor relevant to the determination of whether to approve the transfer; though bonding capacity relating only to the elementary school district would be reduced by 27% as a result of the transfer, including the transferring district’s high school district would result in the lower figure, and there was testimony that transferring district had no bonded debt and could therefore bond 100% of its bonding capacity.

Acting county superintendent of schools did not abuse her discretion in concluding that proposed transfer of territory from elementary school district to neighboring district would result in a negligible increase in the tax burden on transferring district, as factor supporting approval of the transfer; superintendent of receiving district testified, based on 20 pages of data compiled from Office of Public Instruction, that transfer would add $24.29 of additional taxation per year to a house valued at $100,000, with correspondingly higher and lower impacts on more and less valuable houses, and there was no evidence to support the testimony of transferring district’s superintendent and chair of transferring district’s school board that even that level of increase would be burdensome.

Acting county superintendent of schools could consider, in deciding whether to approve transfer of territory from elementary school district to neighboring district, the availability of federal funding to make up for any decrease in tax revenue suffered by transferring district; though statute governing territory transfer did not list federal funding as a factor to consider, it also did not limit consideration to the listed criteria.

Acting county superintendent of schools did not abuse her discretion in concluding that proposed transfer of territory from elementary school district to neighboring district would improve the safety of student transportation; receiving district was already providing transportation services to the transfer territory, as nine of the 11 elementary school students in the transfer territory attended school in the receiving district, and its school was closer to the transfer territory than was school in the transferring district.

Issue of the facial validity of statute governing transfer of territory between school districts, as raised in elementary school district’s appeal from the approval of transfer petition, was identical to issue raised in prior appeal from approval of a prior petition to transfer the same territory, as element supporting application of collateral estoppel to bar relitigation of the issue; both appeals involved identical circumstances, namely district’s opposition to neighboring district’s petitions to acquire the same territory, and in both appeals district argued that statute was unconstitutionally vague because it did not provide reasonably clear and definite standards, objective criteria, and ascertainable limits to guide county superintendent of schools in making the transfer decision.

Appeal from the approval of a prior petition to transfer territory from elementary school district to neighboring district resulted in a final judgment on the merits of transferring district’s challenge to the facial validity of the territory transfer statute, as element supporting application of collateral estoppel to bar relitigation of the issue on appeal from the approval of a subsequent petition to transfer the same territory; judge in prior appeal rejected the facial challenge based on briefing by the parties and a summary judgment hearing, and devoted seven pages of his order to addressing the constitutionality of the statute, and transferring district had an opportunity to appeal the decision upholding the statute but declined to do so.

Doctrine of res judicata barred elementary school district from relitigating, in its appeal from the approval of a petition to transfer territory to neighboring district, the facial validity of the territory transfer statute; transferring and receiving districts were both parties to prior litigation arising out of an earlier transfer petition, issues in the two actions were the same and related to the same territory, and judge in prior action awarded final summary judgment to receiving district on the issue of whether the statute was unconstitutionally vague, upholding the validity of the statute.

Statute governing transfer of territory between school districts was not unconstitutional as applied to elementary school district from which certain territory was transferred; as a political subdivision of the state, district had no due process rights that could be violated by trial court’s reliance on the fact that tax-exempt tribal lands made up the transfer territory and that district received significant federal funding to mitigate the effect of the transfer.




HIGHWAYS - NEW HAMPSHIRE

Bellevue Properties, Inc. v. Town of Conway

Supreme Court of New Hampshire - August 25, 2020 - A.3d - 2020 WL 4980818

Hotel owner appealed town’s decision to discontinue road, which provided access to hotel property, as part of neighboring retail center’s redevelopment plan.

The Superior Court affirmed, and hotel owner appealed.

The Supreme Court held that:

Evidence was sufficient to support town’s decision to discontinue road which provided access to hotel, as part of retail center development project; retail center had agreed to build and maintain new road and historically had maintained and provided public access to portion of road ringing retail center and hotel, even if retail center failed to maintain or provide access to road, primary access road to hotel still existed, as well as secondary access road, and town had interest in cost-free construction of new road with additional amenities and the elimination of the town’s yearly maintenance obligations.

Trial court’s finding that new road constructed by retail center would be “dedicated to public use” did not constitute an improper finding in road discontinuance appeal that retail center would legally dedicate the new road to the town, but instead, that it would construct and maintain the new road for public use; court’s findings and rulings demonstrated that it found that retail center, not town, would be responsible for operating and maintaining the new road upon its completion.




MUNICIPAL GOVERNANCE - TEXAS

City of Leon Valley v. Martinez

Court of Appeals of Texas, San Antonio - August 19, 2020 - S.W.3d - 2020 WL 4808711

Former city council member who had been removed from elected office brought action alleging the procedures used to remove him from office violated his due process rights and seeking declaratory judgment to determine his right to be reinstated.

The District Court denied the City’s plea to the jurisdiction. The City appealed.

The Court of Appeals held that former city council member’s claims could only be brought in quo warranto proceeding, and thus he lacked standing to bring private action for declaratory judgment.

Allegations by former city council member that his removal from elected office violated his due process rights could exclusively be brought in quo warranto proceeding, and thus he lacked standing to bring private action for declaratory judgment that he be reinstated to office; former city council member challenged only the type of notice he should have been provided and the number of votes required to remove him, but he did not allege that the city council acted without any authority such that its action was void.




BONDS - ARKANSAS

Williams v. Bank of Ozarks as Trustee for Registered Owners of $4,400,000 Benton County Property Owners' Improvement District No. 7 Special Assessment Bonds

Court of Appeals of Arkansas, Division II - May 22, 2019 - 2019 Ark. App. 281 - 577 S.W.3d 434

Bank, as trustee for holders of special-assessment bonds issued to fund the construction of infrastructure improvements for residential subdivision, brought suit for breach of contract against guarantors of the bonds, alleging that guarantors had breached their guaranty agreements.

The Circuit Court granted bank’s motion for summary judgment and denied guarantors’ countermotion for summary judgment. Guarantors appealed.

The Court of Appeals held that:

Guaranty agreements under which guarantors guaranteed the principal and interest due on special-assessment bonds issued by property owners’ improvement district to fund construction of infrastructure improvements for residential subdivision unambiguously imposed an absolute and unconditional obligation on guarantors, and thus parol evidence rule prohibited court from considering extrinsic evidence of district’s tax order and district’s pledge-and-mortgage agreement with bank as trustee for bondholders, when considering whether bank’s alleged failure to collect special tax after the bonds had matured was a material alteration and impairment of collateral that released guarantors from liability.

Alleged failure of bank, as trustee for bondholders, to collect special-assessment taxes, after the special-assessment bonds issued by property owners’ improvement district to fund infrastructure improvements for residential subdivision had matured, did not constitute a material alteration that relieved guarantors from liability under guaranty agreements, under which guarantors had guaranteed payment of the principal and interest due on the bonds; the guaranty agreements were absolute and unconditional, such that liability of guarantors became fixed upon default, and under the guaranty agreements, bank did not assume any responsibility for collection of the special tax.

Guarantors of delinquent bonds issued to fund the construction of infrastructure improvements for residential subdivision failed to preserve for appellate review their claim that, pursuant to choice-of-law provisions in the guaranty agreements, bank was obligated under state law to pay special-assessment tax associated with the underlying properties, although guarantors raised argument based on state’s law in response to bank’s motion for summary judgment in bank’s action for breach of guaranty agreements, where trial court relied on other grounds in entering summary judgment, and guarantors did not obtain ruling on their state-law argument.

Guarantors of delinquent special-assessment bonds waived any defense based on impairment of collateral arising from bank’s alleged failure to collect the special-assessment tax collateral securing the debt obligation they guaranteed, in a breach-of-contract action brought by bank, as trustee for bondholders, to enforce guaranty agreements; guaranty agreements contained a term providing any omission by bank did not affect liability of guarantors, guarantors’ obligations were absolute and unconditional, and guaranty agreements stated that bank “assumed no responsibility whatsoever” for collecting “any of the special tax.”




PUBLIC UTILITIES - CALIFORNIA

MetroPCS California, LLC v. Picker

United States Court of Appeals, Ninth Circuit - August 14, 2020 - F.3d - 2020 WL 4726364 - 20 Cal. Daily Op. Serv. 8433 - 2020 Daily Journal D.A.R. 8787

Prepaid wireless telephone service provider brought action against members of the California Public Utilities Commission (CPUC) in their official capacities, alleging that requirement in CPUC’s resolution that prepaid providers use the intrastate allocation factor to determine intrastate revenue subject to state universal service surcharges pursuant to California’s Prepaid Mobile Telephony Services Surcharge Collection Act conflicted with federal law and was therefore preempted.

The United States District Court granted summary judgment in favor of provider. Members appealed.

The Court of Appeals held that:




PUBLIC PENSIONS - CALIFORNIA

Alameda County Deputy Sheriff's Association v. Alameda County Employees' Retirement Association

Supreme Court of California - July 30, 2020 - P.3d - 9 Cal.5th 1032 - 2020 WL 4360051

In consolidated cases, public employees and public employee organizations brought mandamus actions against county retirement boards challenging constitutionality of Public Employee Pension Reform Act (PEPRA) as it applied to certain plan members under County Employees Retirement Law (CERL).

The Superior Court entered writ of mandate, ruling that county employees possessed vested right to continuation of some, but not all, pre-existing practices. Employees and organizations appealed and state and county sanitary district filed appeals and cross-appeals. The Court of Appeal affirmed in part, reversed in part, and remanded. Supreme Court granted petitions for review.

The Supreme Court held that:




JUDGMENTS - CALIFORNIA

Estate of Casillas v. City of Fresno

United States District Court, E.D. California - July 7, 2020 - F.Supp.3d - 2020 WL 3802749

After city, police department, and police officer were found liable for $4,750,000 in connection with police shooting, they moved to stay enforcement of judgment and waive bond pending resolution of appeals.

The District Court held that city, police department, and police officer were entitled to unsecured stay.

City, police department, and police officer, that jury found liable for $4,750,000, were entitled to unsecured stay during appeal of judgment regarding police shooting; city had $34.8 million in emergency reserves, a sound credit rating, and $10 million insurance policy.




MUNICIPAL ORDINANCE - MARYLAND

Pizza di Joey, LLC v. Mayor of Baltimore

Court of Appeals of Maryland - August 17, 2020 - A.3d - 2020 WL 4745777

Food trucks brought action against city, seeking injunctive relief and declaration that a city code provision prohibiting food trucks from operating within 300 feet of brick-and-mortar establishments that sold primarily the same kind of food violated substantive due process and equal protection under State Constitution.

After a bench trial, the Circuit Court concluded that the provision did not violate due process or equal protection but that it was unconstitutionally vague. Food trucks appealed and city cross-appealed. The Court of Special Appeals affirmed in part and reversed in part. Food trucks appealed.

The Court of Appeals held that:




SCHOOL FINANCE - OKLAHOMA

Independent School District # 52 of Oklahoma County v. Hofmeister

Supreme Court of Oklahoma - June 23, 2020 - P.3d - 2020 WL 3428194 - 2020 OK 56

School districts brought action for writs of mandamus against defendants including Department of Education, alleging districts received insufficient state aid payments for certain years. Other school districts intervened.

The District Court granted summary judgment to intervening districts, finding no requirement for defendants to seek repayment of excessive state aid payments made to certain schools until an audit was performed by auditors approved by the State Auditor and Inspector. Plaintiff districts appealed.

The Supreme Court held that:




BIDDING. - PENNSYLVANIA

Reading Blue Mountain and Northern Railroad v. Seda-Cog Joint Rail Authority

Commonwealth Court of Pennsylvania - July 6, 2020 - A.3d - 2020 WL 3636387

Private railroad operator brought a complaint against joint rail authority board, and named highest-scoring proposer as an indispensable party, seeking declaratory relief that authority violated non-competition provision of Municipality Authorities Act (MAA) by allegedly prohibiting direct completion with private enterprise and that authority violated competitive bidding section of MAA and Procurement Code, and operator sought an injunction prohibiting authority from continuing request for proposal (RFP) process until merits of the case were decided.

The Court of Common Pleas granted authority’s motion for summary judgment and proposer’s motion for summary judgment. Operator appealed.

The Commonwealth Court held that:




EMINENT DOMAIN - CALIFORNIA

Rutgard v. City of Los Angeles

Court of Appeal, Second District, Division 2, California - July 30, 2020 - Cal.Rptr.3d - 2020 WL 4361069 - 20 Cal. Daily Op. Serv. 7657 - 2020 Daily Journal D.A.R. 7993

Former owner of historic property that charter city acquired in eminent domain proceedings filed petition for writ of mandate after city, having allegedly failed to timely reauthorize taking, failed to offer former owner right of first refusal to purchase property.

The Superior Court granted owner’s petition. City appealed.

The Court of Appeal held that city failed to adopt resolution reauthorizing taking within 10 years of final adoption of resolution of necessity.

The Eminent Domain Law does not permit a public entity to fail to put property acquired through eminent domain to public use or to timely reauthorize its necessity for public use, then to adopt a new, “original” resolution of necessity at any time; allowing a public entity to do so would permit an end-run around the 10-year time limit for putting a property to public use or adopting a reauthorization resolution, in contravention of the legislative intent to prevent such gamesmanship and to prohibit public entities from holding condemned property indefinitely.

The term “adopt,” in the statute setting forth a 10-year time limit, starting from the date of adoption of a resolution of necessity for a taking, within which a public entity seeking to retain a property previously acquired by eminent domain but not put to public use must adopt a resolution reauthorizing that use, refers to the date a resolution is finally adopted, not when it is initially adopted or when it becomes effective; the Legislature deliberately chose to look to the date of “adoption” rather than the “effective date” as a common point of reference throughout the Eminent Domain Law, and the date of final adoption of a resolution is more meaningful, as a definite action by a public entity, than an intermediate point in the enactment process with no effect in and of itself.

The statute in the Eminent Domain Law setting forth a 10-year time limit for a public entity that has acquired property by eminent domain to either put the property to public use or adopt a resolution reauthorizing its public use defines the date of final adoption a resolution by incorporating the local law governing the public entity; the time limit statute does not purport to define “adoption,” and the statute and the broader Eminent Domain Law elsewhere look to local charters and ordinances governing the process by which a public entity “adopts” resolutions, which allows chartered public entities such as home rule cities to experiment with procedures for adopting resolutions.

Charter city failed to adopt resolution reauthorizing taking of historic property for public use within 10 years of final adoption of resolution of necessity for taking, and, thus, city had a ministerial duty to sell property and allow former property owner right of first refusal in purchasing it, where date of final adoption of resolution of necessity, under city charter, was date when resolution had passed city council and either been approved by mayor or, if not approved, passed second override vote of city council, and city adopted reauthorizing resolution more than 10 years after date of final adoption of resolution of necessity.




ZONING & PLANNING - CALIFORNIA

Granny Purps, Inc. v. County of Santa Cruz

Court of Appeal, Sixth District, California - August 5, 2020 - Cal.Rptr.3d - 2020 WL 4504904 - 20 Cal. Daily Op. Serv. 7971 - 2020 Daily Journal D.A.R. 8265

Medical marijuana dispensary brought action against county, seeking to recovery marijuana plants seized by the county for violating county’s cultivation ordinance, alleging causes of action for conversion, trespass, and inverse condemnation.

The Superior Court sustained county’s demurrer without leave to amend. Dispensary appealed.

The Court of Appeal held that:

Pursuant to its inherent police power, a local government can by zoning ordinance determine that a medical marijuana dispensary is not an allowed land use anywhere in the jurisdiction, and a local legislative body can restrict or disallow entirely the cultivation of medical cannabis.

County ordinance that imposed a limit on medical cannabis cultivation within the county did not render marijuana plants, which complied with state law, “contraband” subject to seizure for violation of the ordinance; local ordinances could not make it illegal to possess legal medical marijuana, even while the locality remained free to limit or prohibit commercial dispensing or cultivation.

Revival of medical marijuana dispensary’s corporate powers did not retroactively validate lawsuit filed against county filed within period of its suspension to bring trespass claim regarding seizure of marijuana plants within statute of limitations for suits against a government entity pursuant to the Government Claims Act.

Medical marijuana dispensary’s allegations regarding county’s seizure of its marijuana plants in connection with enforcement of county ordinance prohibiting cultivation were insufficient to state an inverse condemnation claim, where none of the allegations indicated the marijuana was taken for public use or damaged in connection with a public work of improvement.




UTILITIES - NEBRASKA

REO Enterprises, LLC v. Village of Dorchester

Supreme Court of Nebraska - August 7, 2020 - N.W.2d - 306 Neb. 683 - 2020 WL 4555090

Landlord brought action challenging requiring tenants to obtain a landlord’s written guarantee that the landlord would pay any unpaid utility charges for the rented property.

The District Court granted landlord’s motion for summary judgment on equal protection claim, and village appealed.

The Supreme Court held that ordinance did not violate equal protection.

Under rational basis review, village ordinance which required tenants, when applying for utility services, to obtain a landlord’s written guarantee that the landlord would pay any unpaid utility charges for the rented property did not violate equal protection; ensuring payment for utility services was a plausible policy reason for the classifications requiring landlords’ guarantees for tenants but not for residential owners, who were tied to real estate located in village and against whom collection could be more easily pursued, village considered the inherent increased likelihood of a tenant’s lack of creditworthiness, costs associated with locating residential landowner were less than locating a previous tenant, and guarantees allowed village to collect from persons directly tied to property.




BONDS - NEW JERSEY

New Jersey Republican State Committee v. Murphy

Supreme Court of New Jersey - August 12, 2020 - A.3d - 2020 WL 4669826

Political party’s state committee and others brought action challenging constitutionality of New Jersey COVID-19 Emergency Bond Act, under which the State may issue bonds for private sale or borrow funds from the federal government.

Direct certification was granted.

The Supreme Court held that Act is constitutional, with the limitation that borrowing is required to “meet an emergency” and may not be for programs unrelated to the emergency.

The New Jersey COVID-19 Emergency Bond Act, under which the State may issue bonds for private sale or borrow funds from the federal government, is valid under the Appropriations Clause and Debt Limitations Clause of the state Constitution, with the limitation that borrowing is required to “meet an emergency” and may not be for programs unrelated to the emergency.

In borrowing funds pursuant to the New Jersey COVID-19 Emergency Bond Act, under which the State may issue bonds for private sale or borrow funds from the federal government, the Governor or the Treasurer must certify publicly the State’s projected revenue and consequent shortfall as a result of the COVID-19 pandemic before each tranche of borrowing.

The fiscal clauses of the New Jersey Constitution allow the State both to borrow and to spend funds for the purpose of meeting an emergency caused by a disaster and do not pose a bar to the New Jersey COVID-19 Emergency Bond Act, under which the State may issue bonds for private sale or borrow funds from the federal government.

Statutes challenged on constitutional grounds can be declared void only if their repugnancy to the constitution is clear beyond reasonable doubt.




EMINENT DOMAIN - NEW YORK

Lebov, LLC v. State

Supreme Court, Appellate Division, Second Department, New York - July 22, 2020 - N.Y.S.3d - 185 A.D.3d 911 - 2020 WL 4197130 - 2020 N.Y. Slip Op. 04153

Condemnee’s predecessor commenced claim seeking direct damages for value of land appropriated by State as well as consequential damages for diminution in value to the remainder of the property.

Following trial, the Court of Claims awarded condemnee $232,000 in direct damages and lost site improvements but denied condemnee’s claim for consequential damages. Condemnee appealed.

The Supreme Court, Appellate Division, held that:

Court of Claims properly determined value of appropriated land in determining amount of direct damages owed to condemnee in condemnee’s claim for damages for State’s partial taking of his land, where amount of direct damages was within range of parties’ expert testimony and was adequately explained, court considered comparable sales relied upon by parties’ expert, and court did not adopt comparable sales analyzed by court in prior case.

Condemnee was not entitled to award of consequential damages for State’s partial taking of landowner’s real property, where condemnee failed to meet its burden of proof to establish indirect damages and to furnish basis upon which reasonable estimate of those damages could be made, condemnee did not present evidence that potential expansion was physically possible in light of existing zoning requirements or economically feasible, and condemnee was not entitled to award of consequential damages based upon partial taking reducing amount of parking on property.

Condemnee was not entitled to sanctions for spoliation of evidence by according an adverse inference with respect to the alleged destruction of draft appraisal reports prepared by the State’s appraiser in condemnee’s proceeding for damages following State’s partial taking of condemnee’s real property, where condemnee failed to present evidence that State’s appraiser violated Uniform Standards of Professional Appraisal Practice by failing to maintain in his work file prior draft appraisal report that was transmitted to State, and condemnee failed to present evidence that appraiser created and intentionally destroyed prior drafts of appraisal report, which were relevant to condemnee’s claim.




PUBLIC UTILITIES - CALIFORNIA

Wilde v. City of Dunsmuir

Supreme Court of California - August 3, 2020 - P.3d - 2020 WL 4432754 - 20 Cal. Daily Op. Serv. 7720

City resident filed petition for writ of mandate, seeking to require placement of referendum on ballot.

The Superior Court denied petition. Resident appealed. The Court of Appeal reversed and remanded with directions, and appeal was taken.

The Supreme Court held that:

Although California Constitution grants voters the power of referendum, which allows them to approve or reject laws enacted by their elected representatives before the laws take effect, the Constitution exempts certain categories of legislation, including statutes providing for tax levies or appropriations for usual current expenses of the government, and this exemption applies to measures setting municipal water rates.

Constitutional articles added by Proposition 218, stating that initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, fee, or charge, did not control whether municipal water rates were subject to challenge by referendum; definitional provisions of constitutional articles added by Proposition 218 began with the phrase “as used in this article” and did not purport to apply to other provisions of law, nor did the articles contain any other indication of intent to alter or amend the meaning of “tax” as used in any other constitutional provision, including the referendum provision, which predated articles by several decades, and in the absence of such an indication, appellate court would presume that no alteration or amendment was intended, and although appellate courts had duty to harmonize constitutional provisions where possible, this duty did not compel appellate court to graft the tax terminology of constitutional articles onto the referendum provision when the voters had not chosen to do so.

Charges used to fund city’s provision of water, like other utility fees used to fund essential government services, are exempt from referendum under State Constitution’s taxation exemption; city depends on water charges to provide water to residents and to maintain the infrastructure necessary to do so, and even the temporary suspension of rate-setting resolution runs risk of undermining city’s ability to finance its water utility and manage its fiscal affairs, and the result would be to impair city’s ability to carry out one of its most basic and essential functions.

City resolution imposing water rates qualified as a “tax” measure within the meaning of taxation exception to the referendum power in State Constitution; disapproving Bock v. City Council, 109 Cal.App.3d 52, 167 Cal.Rptr. 43. Cal.




EMINENT DOMAIN - MONTANA

Mountain Water Company v. Montana Department of Revenue

Supreme Court of Montana - August 4, 2020 - P.3d - 2020 WL 4462830 - 2020 MT 194

Following condemnation of its water distribution system and initial claim for property tax refund private water company brought second claim for property tax refund regarding taxes paid while property was subject to condemnation proceedings.

The District Court granted summary judgment for city on unjust enrichment grounds. Water company appealed, and city and county cross-appealed.

The Supreme Court held that:

Equitable doctrine of unjust enrichment could not preclude private water company’s claim for property tax proration and related relief, after city initiated condemnation action to take company’s water distribution system, in light of statute specifically commanding that the “condemnor must be assessed the condemnor’s pro rata share of taxes for the land being taken” as of the earlier of date of summons or possession and that the “condemnor must be assessed for all taxes accruing” thereafter prior to transfer of record title.

Remedy of property tax protest, declaratory judgment, and general property tax refund is inapplicable and unavailable as a matter of law for enforcement of a condemnee’s right to property tax proration.

Water company settlement agreement with city regarding condemnation of water company’s water distribution system constituted a knowing and intelligent contractual waiver of its right to property tax proration and reimbursement from the city; settlement agreement clearly indicated that the manifest mutual intent and effect of the agreement was for water company to waive any claim for property tax reimbursement or relief from or against the city while at the same time preserving the right to seek a general property tax refund, and stipulated final judgment in condemnation expressly incorporated the terms of the settlement agreement by reference.




ANNEXATION - OHIO

State ex rel. Xenia v. Greene County Board of Commissioners

Supreme Court of Ohio - June 25, 2020 - N.E.3d - 2020 WL 3456716 - 2020 -Ohio- 3423

City that sought type-2 annexation of township’s land, whereby residents of the annexed land were to become residents of both city and township, brought action requesting a writ of mandamus compelling county to approve city’s annexation petition.

The Second District Court of Appeals denied county’s motion for summary judgment, granted city’s motion for summary judgment, and issued the writ. County appealed.

The Supreme Court held that:

Writ of mandamus was proper vehicle to compel county to grant city’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township; annexation statute’s subsection setting forth the conditions for granting such a petition did not contain the sort of open-ended language that governed traditional annexation, which entailed a factual determination concerning the general good of the annexed territory, but instead the subsection afforded the county no discretion if the petition satisfied all of the subsection’s conditions, and county’s performance of its duties under the statute did not, on its own, foreclose the possibility that the county could be compelled to grant the petition in a mandamus action.

Contiguity condition set forth in type-2 annexation statute established the sole contiguity requirement for such annexation, whereby residents of the annexed land became residents of both city and township, as relevant to the statute’s condition that a petition for type-2 annexation meet all of the requirements set forth in statute governing the filing of annexation petitions, which contained its own contiguity requirement; unlike the filing statute, the type-2 annexation statute’s contiguity condition defined the minimum degree of touching necessary in a type-2 setting, and application of contiguity principles crafted outside the type-2 setting would have rendered the specific limitations embodied in the type-2 annexation statute’s contiguity condition meaningless.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the territory proposed for annexation have a boundary contiguous with the municipal corporation of at least 5% of the territory’s perimeter; the city calculated a shared boundary of 5.31%, while the county, which opposed annexation, calculated a boundary of 5.03%, and the effect that city’s future plans might have had on the percentage did not impact the determination of whether the city’s petition satisfied the contiguity condition.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the annexation not create an unincorporated area of a township that was completely surrounded by the territory proposed for annexation; although the proposed annexation would create two township islands, the condition did not forbid township islands created by the coupling of pre- and post-annexation boundaries, and here the territory proposed for annexation would form merely one side of a triangular-shaped island and one side of a quadrilateral-shaped island.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the city agree to assume maintenance of a street or highway that would be divided or segmented by a boundary line between the city and township; city stated in its petition that it would correct road maintenance problems, city was not required to present to the township an agreement concerning road-maintenance issues, and contention that city would fail to correct problems in light of its alleged past failures to do so was speculative and did not create a fact issue as to whether city in fact agreed in its petition to correct road-maintenance problems.




INDENTURE TRUSTEES - OKLAHOMA

Almeida v. BOKF, NA

United States District Court, N.D. Oklahoma - July 8, 2020 - Slip Copy - 2020 WL 3846731

From July 2014 through September 2015, Borrower LLC engineered a series of conduit financing transactions that generated roughly $62 million from investors. Borrower LLC touted the offerings as vehicles to finance the development of senior living facilities.  According to the plaintiff bondholders, the offerings were also vehicles for a fraud that bilked investors out of millions.

Borrower LLC’s alleged fraud, the plaintiffs claim, would not have been possible without the aid, or at least the negligence, of BOKF, the bank serving as Indenture Trustee on the offerings. The plaintiffs assert that BOKF’s role in the bond offerings entailed a duty to look out for investors, but the bank ignored that duty in favor of its own interests.

Although BOKF, by way of the Indentures, agreed to accept the issuers’ interests in the Loan Agreements, the bank disclaimed nearly all responsibility for policing the Borrower LLCs’ compliance with its obligations.

BOKF, arguing that the plaintiffs’ allegations failed to state a claim, moved to dismiss. BOKF argued generally that the plaintiffs’ tort claims fail as a matter of law because they are based on common law duties that BOKF, as an indenture trustee, did not owe. BOKF argued that, because it had no responsibility under the Indentures to verify the Borrower LLCs’ representations in the Official Statements or to otherwise police their conduct, BOKF could not be held liable in tort.

The Court found that this overstated the case. While it is true that the pre-default duties of an indenture trustee are generally limited to those imposed under the indenture, an indenture trustee’s power to disclaim responsibility does have limits. Exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law. Moreover, courts have found indenture trustees to have two kinds of pre-default duties beyond those found in their trust indentures. First, courts have held that indenture trustees have a duty not to profit at the expense of bondholders. Second, indenture trustees must perform “basic, nondiscretionary, ministerial functions” with “due care.” Even though BOKF disclaimed any duty to police the conduct of the Borrower LLCs, the plaintiffs might be able to state a claim if BOKF’s alleged misconduct was willful, perpetrated a fraud, or breached an extra-contractual duty.

The Court found, in short, that BOKF was not responsible for the promises Borrower LLC made to investors and it had no duty to investigate the Borrower LLCs’ compliance with their contractual obligations. Accordingly, even assuming that Oklahoma would recognize a claim for aiding and abetting fraud, such a claim would only be viable upon allegations (1) that BOKF had actual knowledge that Borrower LLC was defrauding investors by commingling and misappropriating funds, and (2) that BOKF, by its silence, intended to aid in the fraud. The Court concluded that plaintiffs’ complaint failed to plead actual knowledge of the underlying fraud.

The Court found that – as with aiding and abetting common law fraud – the question of whether a cause of action for aiding and abetting breach of a fiduciary duty exists in Oklahoma is unresolved. Even were Oklahoma to recognize a claim for aiding and abetting a breach of a fiduciary duty, any such claim would require an allegation that the defendant had knowledge of the primary actor’s wrongful conduct and no such knowledge was alleged.

As to Plaintiffs’ allegation of negligence, the Court found that BOKF had expressly disclaimed any duty to monitor the Borrower LLCs management practices and use of bond proceeds. “The plaintiffs try to work around this fact by casting the alleged acts and omissions as breaches of BOKF’s extra-contractual duty to carry out ministerial tasks with due care, but this argument is wafer thin. The Court cannot interpret ‘ministerial tasks’ to include duties that, by virtue of the Indentures, did not exist. Reading the ministerial-tasks exception so broadly would swallow whole the general rule that an indenture trustee’s pre-default duties are exclusively governed by the terms of the trust indenture.”

The Court found that the remaining alleged negligent acts did implicate extra-contractual duties: 1) BOKF’s alleged failure, pursuant to the Continuing Disclosure Agreement (“CDA”), to require the Borrower LLCs to submit certain information and financial statements to EMMA; and 2) the alleged conflicts of interest, in which the bank did owe a duty not to seek a personal benefit at the expense of bond holders; and 3) BOKF’s alleged failure to post notice of material events.

Having concluded that the plaintiffs’ allegations implicated BOKF’s pre-default duties to avoid conflicts and complete ministerial tasks with due care, the question became what standard of care applied to those duties.

The Court noted that an indenture trustee’s pre-default duties are not fiduciary in nature and that a trustee may contractually limit liability for its own negligence if the limitation is explicitly and unambiguously provided for in the agreement. “This unambiguously precludes the imposition of liability on a theory of mere negligence. As a result, the plaintiffs must allege gross negligence, which Oklahoma defines as an ‘intentional failure to perform [a] manifest duty in reckless disregard of consequences.'”

The Court found that the plaintiffs’ allegations regarding BOKF’s alleged failure to post notice of material events and to avoid conflicts of interest plausibly stated a claim for gross negligence under this standard.

As to the plaintiffs’ claim for breach of fiduciary duty, the Court held that the plaintiffs must clearly allege (1) an Event of Default, (2) BOKF’s actual knowledge of the default, if other than a failure to make payment, and (3) BOKF’s subsequent failure to prudently exercise its powers to protect the interests of bondholders. As they failed to do so, they failed to state a claim for breach of fiduciary duty.




PERMITS - VERMONT

Green Mountain Fireworks, LLC v. Town of Colchester

Supreme Court of Vermont - August 7, 2020 - A.3d - 2020 WL 4556800 - 2020 VT 64

Operators of fireworks stores brought actions challenging town’s dismissal of their application for permit to sell fireworks and seeking declaration that they were permitted to sell fireworks even without municipal permit.

The Superior Court dismissed the actions, and operators appealed.

The Supreme Court held that:

Zoning permits were insufficient to satisfy municipal permit requirement of statute prohibiting the offer of fireworks for sale absent “permit by both the U.S. Bureau of Alcohol, Tobacco, and Firearms and the municipality in which the person offers for sale and stores the fireworks.”

Statute governing sale of fireworks prohibits the sale of fireworks to purchasers who do not have a permit for a “supervised public display,” as statute as a whole was directed at regulating the permitting of public fireworks displays, and history of the statute revealed that the Legislature intended to allow only the sale of display fireworks, not fireworks generally.




BOND VALIDATION - CALIFORNIA

San Diegans for Open Government v. Public Facilities Financing Authority of City of San Diego

Court of Appeal, Fourth District, Division 1, California - June 30, 2020 - Not Reported in Cal.Rptr. - 2020 WL 3527338

On March 17, 2015, the City of San Diego and the Public Facilities Financing Authority issued 2015 Refunding Bonds.

On May 18, 2015, San Diegans for Open Government (SDOG) filed a reverse-validation complaint that challenged the validity of the Bonds based upon alleged conflicts of interest under section 1090. SDOG claimed that three financial institutions were hired for the Bond financing team, although those entities already acted as fiduciaries to the City on other financial matters, and the City would allow existing financial brokers to purchase the Bonds through a negotiated sale instead of through a public sale to the highest bidder.

As to standing, the Court of Appeals concluded that SDOG had standing under Government Code section 1092 (section 1092) to sue the city to invalidate the Bond Approvals and Bonds allegedly made in violation of section 1090.

The Supreme Court of California granted review and reversed the decision, holding that section 1092 did not provide plaintiff a private right of action because it was not a party to the contracts.

The Supreme Court remanded the case to decide what sort of relief SDOG was seeking and whether SDOG could proceed under section 526a or any other statutory provision.

The Bonds were issued and sold in May 2016. SDOG then stated that it no longer sought to enjoin issuance and sale of the Bonds, but sought instead disgorgement by the interested individual or individuals. The City responded that disgorgement would necessarily require voiding of the Bond Approvals and a declaration that the Bonds were void.

The Court of Appeals agreed, and concluded that SDOG had no standing to invalidate the Bond Approvals and Bonds. “In sum, when granting standing to taxpayers to challenge illegal or wasteful actions, the Legislature carved out an exception, choosing not to give taxpayers standing to enjoin the issuance, offer for sale or sale of municipal bonds. (§ 526a, subd. (b).) We conclude that this prohibition extends to any action that would result in invalidating bonds, regardless of the form of the action or the particular remedy sought.”

The Court of Appeals held that, “A declaration that the Bond Approvals and Bonds were null and void is equivalent to a restraint on the issuance and sale on the bonds, because it would invalidate the municipal backing of the Bonds, their essential feature, and thus is barred by section 526, subdivision (b).”

 




EMINENT DOMAIN - GEORGIA

Hardy v. United States

United States Court of Appeals, Federal Circuit - July 15, 2020 - F.3d - 2020 WL 3980705

Owners of property adjacent to railroad corridor filed rails-to-trails class action against United States, claiming taking of their property without just compensation in violation of Fifth Amendment by Surface Transportation Board (STB) authorizing railbanking by conversion of railroad rights-of-way to recreational trails pursuant to National Trail Systems Act (Trails Act).

The Court of Federal Claims granted property owners’ summary judgment motion, concluding that property owners had a cognizable property interest in the land at issue, and holding that issuance of applicable Notice of Interim Trail Use or Abandonment (NITU) effected a temporary taking of certain parcels along the railroad corridor. Government appealed.

The Court of Appeals held that:

Under Georgia law, deeds reflected parties’ apparent intent to convey easements in the form of railroad rights of way, rather than a fee simple estate, and thus property owners had compensable property interests in land, where deeds consistently referred to property conveyed as a right of way, property owners received nominal consideration for interests conveyed, deeds did not fix acreage subject to conveyance, instead describing the location and quantity of subject land by reference to railroad track, neither habendum clause nor warranty clause recited conveyance in fee simple, and word “forever” in habendum and warranty clauses merely described duration of conveyance.

Under Georgia law, deed, when considered in its entirety, reflected parties’ apparent intent to convey easement in the form of railroad right of way, rather than a fee simple estate, and thus property owner had a compensable property interest in land, although property owner received substantial consideration of $150 for conveyance, where face of deed described conveyance as a right of way, county clerk’s office seemed to have recorded deed as a right of way deed, conveyance was expressly defined as “what is necessary for Railroad purposes for said Railroad as a right of way,” and amount of consideration was determined by a committee of arbiters selected to assess the damage sustained by property owner on account of right of way.

Under Georgia law, considered as a whole, deeds conveyed easements, rather than land in fee simple,to State Highway Department of Georgia to build state aid road, and thus property owners had compensable property interest in land, where deeds were titled “Right of Way Deed” and repeatedly referred to conveyance as a right of way, recited nominal consideration of one dollar, granted drainage rights, and some of deeds recited a reversionary interest, recitation of “in fee simple” in habendum clause modified, rather than superseded, conveyed premises and were descriptive of extent of duration of enjoyment of easement, and statute pursuant to which road was built recited no requirement that real property rights for such state aid roads be acquired in fee simple.

Briefing and argument before appellate court did not sufficiently focus on whether or when railroad would have abandoned its easements absent Notice of Interim Trail Use or Abandonment (NITU), thus warranting vacatur of Court of Federal Claims’ decision that issuance of NITU effected a physical taking of land, and remand to trial court for further proceedings on questions of whether and when railroad would have abandoned the portion of its rail line absent NITU.




DEVELOPMENT - INDIANA

Hinterberger v. City of Indianapolis

United States Court of Appeals, Seventh Circuit - July 15, 2020 - F.3d - 2020 WL 3980690

Real estate developer and his companies sued city and others under § 1983 and state law for alleged harms arising from failed mixed-use development project for which they were unable to obtain public funding.

City moved for summary judgment. After rejecting plaintiffs’ statement of facts for violating local rule governing summary judgment practice, the United States District Court for the Southern District of Indiana granted city’s motion and subsequently directed entry of partial final judgment as to city. Plaintiffs appealed.

The Court of Appeals held that:

District court did not abuse its discretion in striking statement of disputed material facts filed pursuant to local summary judgment rule by plaintiffs opposing summary judgment; although statement, which identified nine topical areas of allegedly disputed facts and from there explained those facts in paragraphs, looked to be compliant with local rule, statement misrepresented the evidence, contained inaccurate and misleading citations to the record, and presented improper and unsupported argument rather than materially disputed facts, and striking entire statement, rather than only the offending material, was not too harsh because requiring the district court to sift through improper denials and legal argument in search of a genuinely disputed fact would have defeated purpose of rule.

Real estate developer and his companies failed to establish so-called class of one claim brought against city under the Equal Protection Clause of the Fourteenth Amendment, arising from failed mixed-use development project for which they were unable to obtain public funding, absent evidence creating a trial issue on whether developer had been intentionally treated differently from others similarly situated when there was no rational basis for the difference in treatment, given city’s unrebutted argument that it rationally treated other developers differently because they had better timing and met public-funding conditions.

Under Indiana law, real estate developer and his companies failed to establish claim against city for breach of nondisclosure agreement, signed by third party, to which city was not a party.




DEDICATION - MAINE

Pilot Point, LLC v. Town of Cape Elizabeth

Supreme Judicial Court of Maine - July 21, 2020 - A.3d - 2020 WL 4118660 - 2020 ME 100

Property owners brought declaratory judgment actions, alleging town’s right to accept an incipient dedication of proposed, but unaccepted way, had lapsed, and even if it had not lapsed, that town’s right was limited by the scope of the original dedication.

The Superior Court consolidated the complaints. On transfer, Business and Consumer Court conducted a bench trial, and entered judgment for town. Property owner appealed.

The Supreme Judicial Court held that:




EMINENT DOMAIN - MICHIGAN

Mays v. Governor of Michigan

Supreme Court of Michigan - July 29, 2020 - N.W.2d - 2020 WL 4360845

Water users and property owners brought putative class action against State and former city emergency managers for their role in switching city’s water supply that allegedly resulted in Legionella bacteria and toxic levels of iron and lead, claiming inverse condemnation and a violation of their right to bodily integrity under state constitution’s due process clause, among other claims.

The Court of Claims granted partial summary disposition to State and managers on the other claims, but denied summary disposition on the inverse condemnation and bodily integrity claims. State appealed, and managers and users and owners filed cross-appeals. The Court of Appeals affirmed. State’s and managers’ applications for leave to appeal were granted.

The Supreme Court held that:

Property owners sufficiently alleged that State’s and city emergency managers’ actions in changing city’s water supply were substantial cause of decline of their property’s value, as required to state claim for inverse condemnation; owners alleged that switching water source resulted in physical damage to pipes, service lines, and water heaters, and owners alleged that, after water crisis became public knowledge, lenders were hesitant to authorize loans for purchase of realty within city and property values plummeted.

Property owners sufficiently alleged that State and city emergency managers abused their powers in affirmative actions directly aimed at property, as required to state claim for inverse condemnation, based on their actions in changing city’s water supply that allegedly damaged pipes, service lines, and water heaters; State allegedly authorized managers to use different river as interim water source while State and managers knew that using river could result in harm to property, and State and managers allegedly concealed or misrepresented data and made false statements about safety of river water in attempt to downplay risk of its use and consumption.

Property owners alleged that they suffered unique or special injury different in kind, not simply in degree, from harm suffered by all persons similarly situated, as required to state claim for inverse condemnation, based on State’s and city emergency managers’ actions in changing city’s water supply that allegedly damaged pipes, service lines, and water heaters; comparison group was municipal water users generally, not water users within city, and owners alleged that State authorized managers to use interim water source despite knowing potential harm, which was different from harms that municipal water users experienced generally, such as service disruptions and externalities associated with construction.

Genuine issue of material fact as to when water users’ and property owners’ constitutional-tort claims accrued, for purposes of timeliness of statutory notice under Court of Claims Act (COCA), precluded summary disposition for State and city emergency managers based on lack of subject-matter jurisdiction and immunity.

Water users alleged state custom or policy so egregious that it shocked contemporary conscience, and thus users pled recognizable due-process claim under state constitution for violation of their right to bodily integrity against State and city emergency managers; users alleged that decision to switch city’s water source resulted in nonconsensual entry of water contaminated with bacteria and toxic levels of lead in users’ bodies, that State and managers knew that city’s water-treatment system was inadequate, and that State and managers concealed scientific data and made misleading statements about safety of water.

Damages remedy was not precluded as possible remedy for water users’ due-process claim under state constitution for violation of their right to bodily integrity against State and city emergency managers, arising out of decision to switch city’s water source that led to water contaminated with bacteria and toxic levels of lead; even though due process protections were not as “clear-cut” as other specific protections, users’ allegations established clear violation of state constitution, users had no alternative recourse in light of immunity, and alleged conduct, involving one of the most troublesome breaches of public trust in state’s history with catastrophic consequences for health, well-being, and property, was shocking and outrageous.




PUBLIC HOUSING - MINNESOTA

Fletcher Properties, Inc. v. City of Minneapolis

Supreme Court of Minnesota - July 29, 2020 - N.W.2d - 2020 WL 4342651

Landlords brought constitutional challenge to ordinance prohibiting landlords from refusing to rent property to prospective tenants when that refusal was motivated by desire to avoid Section 8 requirements.

The District Court granted summary judgment to landlords. City appealed. The Court of Appeals reversed and remanded. Landlords sought review, which was granted.

The Supreme Court held that:




EMINENT DOMAIN - NORTH DAKOTA

City of Fargo v. Wieland

Supreme Court of North Dakota - July 22, 2020 - N.W.2d - 2020 WL 4199567 - 2020 ND 170

City brought eminent domain action, seeking to acquire landowner’s property for flood protection purposes.

The District Court granted partial summary judgment, concluding that permanent flood protection was public use authorized by law and that the taking of landowner’s property was necessary to the use, and following a trial, jury awarded landowner $850,000 as just compensation for the taking. Landowner appealed, and the Supreme Court affirmed. Landowner thereafter moved for payment of the original amended judgment that had been deposited by the city in court, plus any accrued post-judgment interest. The District Court denied post-judgment interest, and landowner appealed.

The Supreme Court held that:

Under law of the case doctrine, Supreme Court’s prior affirmance of judgment in eminent domain action without remand did not preclude landowner’s subsequent request for post-judgment interest; Supreme Court recognized the open issue of whether a landowner who appeals an award in eminent domain proceedings, in lieu of accepting or withdrawing deposited funds, is entitled to the payment of post-judgment interest, and, at time of prior appeal, district court had not been asked to consider whether the accrual of post-judgment interest was authorized by statute.

Eminent domain statute allowing court to order possession upon deposit of full amount of judgment does not provide for the accrual of post-judgment interest subsequent to a deposit of the full amount of the judgment by the political subdivision.

Eminent domain statute regarding payment of money into court at risk of plaintiff, which allocates risk of loss to the political subdivision and provides that payment of money to court does not release the subdivision “from liability to keep the said fund full and without diminution,” does not require the accrual of interest on the post-judgment deposit of the full amount of the judgment made by the political subdivision.




PUBLIC PENSIONS - PENNSYLVANIA

Estate of Benyo v. Breidenbach

Supreme Court of Pennsylvania - July 21, 2020 - A.3d - 2020 WL 4102382

Husband’s estate, and husband’s brother brought action against wife, alleging wife waived any right to husband’s police-pension benefits.

Following a bench trial, the Court of Common Pleas entered judgment for husband’s estate. Following wife’s death, her estate appealed. The Superior Court affirmed. Wife appealed.

The Supreme Court held, in a matter of first impression, that statutes that governed disbursement of retirement allowances from police pensions did not prohibit enforcement of a property settlement agreement that directed wife to transfer those funds to husband’s brother after wife received them.

Statutes that provided that retirement allowances from police pension funds shall be payable only to the designated beneficiary and not subject to assignment or transfer, and that pension benefits shall not be subject to attachment, execution, levy, garnishment, or other legal process, applied only to pension funds in the possession of the plan administrator, and thus, did not prohibit enforcement of a property settlement agreement that directed wife to transfer those funds to husband’s brother after wife received them; when wife agreed to waive all rights, title, and interest in husband’s police pension she made a legally enforceable bargain, concomitantly exposing herself to legal process if she refused to make good on her contractual obligations.




EMINENT DOMAIN - TEXAS

Hlavinka v. HSC Pipeline Partnership, LLC

Court of Appeals of Texas, Houston (1st Dist.) - June 18, 2020 - S.W.3d - 2020 WL 3393540

Pipeline system owner transporting polymer grade propylene initiated condemnation proceeding against landowner to obtain right to pipeline easement across landowner’s four tracts of land.

Landowner filed plea to jurisdiction challenging pipeline’s eminent domain power, arguing trial court did not have jurisdiction because pipeline was not a common carrier and therefore did not have authority to condemn property.

The County Court at Law No. 2 and Probate Court, Brazoria County granted pipeline’s partial motion for summary judgment, denied landowner’s plea to the jurisdiction, granted pipeline’s motion to exclude landowner’s testimony as to property valuation, and awarded landowner $132,293.36 for condemnation. Landowner appealed.

The Court of Appeals held that:

Pipeline transported oil product for purposes of statute providing independent grant of eminent domain authority to pipelines as common carriers, and thus trial court had jurisdiction to hear pipeline’s condemnation proceeding to acquire right to pipeline easement across landowner’s property, where pipeline transported polymer grade propylene produced from refinery grade propylene and propane which were both components of, or derived from, crude petroleum.

Reasonable probability test applied in pipeline’s condemnation proceeding seeking right to pipeline easement over landowner’s property in order to transport polymer grade propylene oil product, to determination of if, at some point after construction, pipeline would serve public by transporting gas for one or more customers who would either retain ownership of gas or sell it to parties other than pipeline owner, and was thus a common carrier.

Genuine issue of material fact existed as to reasonable probability that pipeline system owner’s proposed pipeline would serve the public rather than system owner’s private interest in selling transported polymer grand propylene to single buyer, precluding summary judgment in pipeline’s condemnation action seeking right to pipeline easement over landowner’s property.

Genuine issue of material fact existed as to reasonable probability that pipeline system owner’s proposed pipeline would serve the public rather than system owner’s private interest in selling transported polymer grand propylene to single buyer, precluding summary judgment in pipeline’s condemnation action seeking right to pipeline easement over landowner’s property.

Existing easements over ten-foot tracts of land on landowner’s property created well-defined separate economic units functionally separate from larger property, and thus landowner could rely on per rod factor to determine value of 30-foot-wide easement condemned by pipeline system owner, where landowner relied on additional information to support valuation opinion, including experience of neighboring property owners and his own experience with land agent for existing pipeline on property, market value of easement was influenced by other factors including type of easement and location of easement, and income derived from pipeline development far exceeded income derived from any other use of property.

Landowner’s valuation testimony did not violate project-enhancement rule prohibiting factfinder from considering any enhancement to value of landowner’s property that resulted from taking itself in assessing damages to be award for condemnation, where landowner established separate economic units already existed on land in ten-foot-wide tracts running parallel to other pipelines on property prior to pipeline system’s condemnation, landowner defined parameters for existing pipeline easements that were different from condemnation project, and units were valuable as tracts for future pipeline development separate and apart from pipeline system project.




EMINENT DOMAIN - WYOMING

EOG Resources, Inc. v. Floyd C. Reno & Sons, Inc.

Supreme Court of Wyoming - July 23, 2020 - P.3d - 2020 WL 4218031 - 2020 WY 95

Oil and gas company filed complaint under the Wyoming Eminent Domain Act, seeking to condemn rights-of-way, easements, and surface use rights on approximately 2,100 acres of ranch owner’s property, and, following hearing, amended complaint to seek only 70-acre pipeline easement.

The District Court dismissed the complaint for failure to comply with the Act’s good-faith negotiation requirement, and company appealed.

The Supreme Court held that:

Oil and gas company failed to satisfy good-faith negotiation requirement of the Wyoming Eminent Domain Act, where company filed complaint seeking to condemn rights-of-way, easements, and surface use rights on approximately 2,100 acres of ranch property, but then, after hearing was continued on the complaint, amended the complaint and sought to condemn only a 70-acre pipeline easement, ranch owner could not have known that it had any option to accept the offer only as to those 70 acres, and company appeared uncertain as to what it was negotiating for, given its confusion concerning the extent of its rights under existing surface use agreement.

While the property sought to be condemned need not be identical to the property described in the offer in order to satisfy the good faith requirement in an eminent domain action, there must be a sufficient resemblance between the two to allow a court to conclude that the subject of the negotiation was clear to both parties and that the offer might have been accepted as it related to the property ultimately sought to be condemned.

Under the Eminent Domain Act, ranch owner was entitled to attorney’s fees and costs incurred on appeal in light of determination that oil and gas company failed to negotiate in good faith prior to filing condemnation complaint.




PUBLIC PENSIONS - ARIZONA

American Federation of State County and Municipal Employees AFL-CIO Local 2384 v. City of Phoenix

Supreme Court of Arizona - July 10, 2020 - P.3d - 22 Arizona Cases Digest 6 - 2020 WL 3885603

City employees and their unions filed suit against city, its retirement plan, and the city’s retirement plan board, alleging they violated Pension and Contract Clauses of the Arizona Constitution and the Contract Clause of the Federal Constitution when they redefined pensionable compensation to not include vacation leave “cash outs” upon retirement.

The Superior Court granted city summary judgment. Employees and unions appealed. The Court of Appeals affirmed. Employees and unions appealed.

The Supreme Court held that:

A one-time payout for accrued vacation leave upon retirement or separation from city was not compensation under city’s retirement plan, and thus, not included when calculating employee’s final average compensation, which was then used in determining the pension benefit amount; payouts were not made in regular, equal installments but instead paid in one lump sum, when employment concluded.

City employees had no contractual rights, independent of their retirement plan, to include one-time payouts for accrued vacation leave in plan’s benefit calculation formula, thus city did not violate Contract Clause to Arizona Constitution by interfering with any vested rights by prospectively eliminating payouts for leave from the calculation of final average compensation.

City employees were acting as parties to a contract, rather than as aggrieved citizens, in bringing suit against city challenging its elimination of payouts for accrued vacation leave in retirement plan’s benefit calculation formula, and thus award of attorney fees to city was appropriate, following entry of summary judgment in its favor, given that there was no risk award would chill suits challenging legitimacy of government actions.




EMINENT DOMAIN - COLORADO

Forest View Company v. Town of Monument

Supreme Court of Colorado - June 8, 2020 - 464 P.3d 774 - 2020 CO 52

Town filed petition in condemnation with regard to parcel of land it had purchased in subdivision for purpose of building water tower, seeking to extinguish restrictive covenant that restricted use of all land in subdivision to residential purposes.

Property owners in same subdivision intervened, claiming they were owned reasonable compensation for the decrease in value to their lots and homes due to lifting the restrictive covenant from town’s parcel.

The District Court found that property owners had a compensable property interest. Town appealed. Court of Appeals reversed. Certiorari was granted.

The Supreme Court held that restrictive covenant was not a compensable property interest.

Restrictive covenant on properties in subdivision, which limited construction to single-family residences, was not a compensable property interest in town’s eminent domain proceeding, in which town sought to extinguish covenant on parcel of property it purchased in order to build water tower, and thus other property owners in subdivision were not entitled to just compensation due to violation of covenant on town’s parcel.




IMMUNITY - CONNECTICUT

Borelli Estate of Giordano v. Renaldi

Supreme Court of Connecticut - June 24, 2020 - A.3d - 2020 WL 3467487

Administratrix of estate of motorist’s passenger filed suit against police officers and town for wrongful death, based on alleged negligence arising out of high-speed chase of fleeing motorist, which resulted in motorist striking embankment off side of road and flipping vehicle, killing passenger.

The Superior Court entered summary judgment for defendants on basis of governmental immunity from liability, and administratrix appealed.

The Supreme Court held that:




ZONING & PLANNING - DISTRICT OF COLUMBIA

Sheridan Kalorama Historical Association v. District of Columbia Board of Zoning Adjustment

District of Columbia Court of Appeals - July 2, 2020 - A.3d - 2020 WL 3580025

Petitioners, a historical association and a neighborhood council, sought review of a decision and order of the District of Columbia Board of Zoning Adjustment (BZA) which granted, subject to specified conditions, the application of a federation of state medical boards for a “special exception” to use its existing residential building in a historic district as an “advocacy” or lobbying office.

The Court of Appeals held that:




EMINENT DOMAIN - IDAHO

Richel Family Trust by Sheldon v. Worley Highway District

Supreme Court of Idaho, Boise, April 2020 Term - July 22, 2020 - P.3d - 2020 WL 4199493

Trust landowner sought judicial review of validation order issued by Highway District Board of Commissioners that validated road which crossed properties owned by landowner and by neighbor.

The First Judicial District Court affirmed, and landowner appealed.

The Supreme Court held that:

Evidence in road validation proceeding indicated that Highway District Board of Commissioners had authority to initiate validation proceedings regarding road over landowner’s property, even though original deed purported to convey right-of-way to county rather than to Highway District; evidence in the record demonstrated that grantor intended to convey a public right-of-way to the appropriate political subdivision, and, regardless of the language of the deed, evidence demonstrated that a public right-of-way existed on the land and that the land was within the jurisdiction of the Highway District.

Documents which Highway District relied on were sufficient to support the existence of a public right-of-way for road over landowner’s property, although field notes and surveys were omitted from the recording of original deed and original survey of the public right-of-way had been lost; there was evidence that original grantor petitioned for a public right-of-way, which was granted by Highway District Commissioners, that deed established the general location of the public right-of-way in the Northeast Quarter of the township Section, and that many historical maps corroborated that the road was located in the Northeast Quarter of the section in the same general location.

Highway District’s road validation order did not constitute a taking of landowner’s property, as deed had conveyed valid title to right-of-way to county.




SPECIAL ASSESSMENTS - NEW JERSEY

Crispino v. Township of Sparta

Supreme Court of New Jersey - July 22, 2020 - A.3d - 2020 WL 4196538

Landowners who owned property near lake brought action challenging township resolution imposing special assessment on landowners’ properties to recoup costs of rehabilitation of private dam owned by beach club, in which landowners were not members, following beach club’s acquisition of loan, for which township was co-borrower, pursuant to New Jersey Department of Environmental Protection’s (NJDEP) dam project fund.

The Superior Court entered judgment voiding the resolution. Township appealed. The Superior Court, Appellate Division, reversed. Landowners petitioned for certification, which was granted.

In a matter of first impression, the Supreme Court held that special assessment was based on an arbitrary methodology.

Township resolution imposing special assessment on landowners’ properties to recoup costs of rehabilitation of private dam owned by beach club, in which landowners were not members, was based on an arbitrary methodology and thus void, where expert appraiser’s report relied on by township, which was co-borrower on loan obtained by club pursuant to New Jersey Department of Environmental Protection’s (NJDEP) dam project fund, simply concluded that landowners who were listed within geographical ambit of club’s bylaws received a benefit due to eligibility for club membership, there was lack of certainty whether all landowners in club’s “reserve” area near lake were automatically eligible for membership, and report did not address statutory proportionality requirements in any meaningful way.




EMINENT DOMAIN - NEW YORK

Wallace v. Town of Grand Island

Supreme Court, Appellate Division, Fourth Department, New York - June 12, 2020 - N.Y.S.3d - 184 A.D.3d 1088 - 2020 WL 3161007 - 2020 N.Y. Slip Op. 03301

Landowner brought article 78 proceeding and declaratory judgment action against town, town board, and town’s zoning board of appeals, seeking declaration that zoning law that prohibited certain short-term rentals was unconstitutional.

Defendants counterclaimed, seeking to enjoin landowner from using his premises as a short-term rental property. The Supreme Court, Erie County, granted defendants’ motion for summary judgment. Landowner appealed.

The Supreme Court, Appellate Division, held that zoning law did not constitute unconstitutional regulatory taking of landowner’s property.

Zoning law prohibiting short-term rentals in certain zoning districts did not render landowner’s property incapable of producing reasonable return on landowner’s investment, and thus did not constitute unconstitutional regulatory taking of property; landowner could sell property at profit or rent it on long-term basis.




PUBLIC PENSIONS - RHODE ISLAND

Quattrucci v. Lombardi

Supreme Court of Rhode Island - June 30, 2020 - A.3d - 2020 WL 3525539 - 2020 Employee Benefits Cas. 241,137

Retired city employees brought action against city, alleging city was in violation of consent judgments as to cost of living adjustments that were required to be paid under collective bargaining agreement.

The Superior Court granted summary judgment to city. Employees appealed.

The Supreme Court held that to extent that city’s enactment of ordinance suspending retired employees’ cost of living adjustments purported to nullify consent judgments, ordinance violated constitutional separation of powers principle.

To extent that city’s enactment of ordinance suspending retired city employees’ cost of living adjustments under collective bargaining agreement purported to nullify consent judgments entered between city and retired city employees in dispute over such adjustments, ordinance violated constitutional separation-of-powers principle; an attempt to skirt a judgment disrupted judicial branch in performance of its duties.




POLITICAL SUBDIVISIONS - SOUTH CAROLINA

Sloan v. Greenville Hosp. System

Supreme Court of South Carolina - June 14, 2010 - 388 S.C. 152 - 694 S.E.2d 532

Plaintiff brought three declaratory judgment actions individually and on behalf of others similarly situated against hospital and its chairman, challenging the hospital’s method of procuring construction services with regard to parking deck, construction management, and request for qualifications (RFQ).

The Circuit Court entered partial summary judgment in favor of hospital on issue of whether it could institute its own procurement procedures, and in construction management and RFQ matters, and against hospital in parking deck matter. Plaintiff appealed.

The Supreme Court held that:

Hospital which was created by act of Legislature and was run by board which was independent of city and county was “special purpose district,” rather than “governmental body” under procurement code, and, thus, hospital could establish its own procurement policy, although word “board” was used in enabling legislation; use of the term “board” or the absence of the specific phrase “special purpose district” was not determinative, legislative intent was to create special purpose district, and enabling legislation did not create board that had statewide authority, rather, it was directed to provide medical services for local area.

Plaintiff failed to meet his burden of proving that hospital’s procurement policy violated statute which required political subdivisions to adopt ordinances or procedures embodying sound principles of appropriately competitive procurement, although it did not mirror terms of procurement code, the model procurement ordinance, and other regional codes; plaintiff appeared to apply a reverse presumption, i.e., that challenged provisions in policy were presumptively invalid because they varied from terms contained in the sources used for comparison, and that difference, standing alone, was not enough to deem policy in violation.




LABOR & EMPLOYMENT - ARIZON

Piccioli v. City of Phoenix

Supreme Court of Arizona - July 10, 2020 - P.3d - 2020 WL 3885699

Members of city employees’ retirement plan and unions representing members sued city, the retirement plan, and city retirement plan board seeking declaratory, injunctive, and mandamus relief based on allegations that amendment to administrative regulation eliminating practice of including one-time payouts for accrued sick leave made upon retirement in the calculation of final average compensation used to determine pension amount unlawfully diminished and impaired members’ vested rights to pension benefits.

Following bench trial, the Superior Court, found in favor of members and union. Defendants appealed. The Court of Appeals reversed. Members and union petitioned for review, which was accepted.

The Supreme Court held that:

One-time payouts upon retirement for accrued sick leave did not constitute “salary or wages” used to calculate pension benefits under city employees’ retirement plan; sick leave payouts were not paid regularly or annually, treating payouts used for sick leave as salary or wages would violate plan by adding days, weeks, or months to the pension-calculation period, and there was no indication that voters who adopted plan intended to give members who banked sick leave more lucrative pension benefits than members who used that time when too ill to work.

City’s prior promise to members of city employees’ pension plan that it would treat one-time sick leave payouts upon retirement as compensation used when determining pension benefits, together with the historical fulfillment of that promise, did not form a pension benefit contract independent of plan, and thus city did not violate any vested rights by prospectively eliminating payments for leave accrued after specified date from the calculation of pension benefits.

Grant of attorney fees in favor of city, as successful party, was warranted on appeal from decision in favor of members of city employees’ pension plan and unions representing members in action seeking declaratory, injunctive, and mandamus relief from changes to administrative regulation governing the way the city calculated retirement benefits, where members and unions challenged regulation as parties to a contract, rather than as aggrieved citizens.




EMINENT DOMAIN - CALIFORNIA

Weiss v. People ex rel. Department of Transportation

Supreme Court of California - July 16, 2020 - P.3d - 2020 WL 4012230 - 20 Cal. Daily Op. Serv. 7056

Property owners brought action against Department of Transportation and county transportation authority, claiming inverse condemnation, trespass, and nuisance, based on the construction of sound barriers.

After sustaining a demurrer to the trespass claim, the Superior Court granted Department’s and authority’s motion for legal determination of liability, which was based on a procedure for eminent domain cases, and entered judgment for Department and authority. Owners appealed. The Fourth District Court of Appeal reversed. Department’s and authority’s petition for review was granted.

The Supreme Court held that:

Eminent Domain Law motion for requesting a ruling on evidentiary or other legal issue affecting determination of compensation would not be imported into inverse condemnation proceedings; nothing indicated Legislature intended motion procedure to be used in inverse condemnation actions, inverse condemnation actions did not have same need for speedy resolution as eminent domain actions, and there was little risk that motion would replace dispositive motion or bench trial in eminent domain actions, but motion would often be dispositive in inverse condemnation cases; disapproving Dina v. People ex rel. Dept. of Transportation, 151 Cal.App.4th 1029, 60 Cal.Rptr.3d 559.

Trial court’s entry of judgment in inverse condemnation action against Department of Transportation and county transportation authority, based on motion for legal determination of liability from Eminent Domain Law, improperly supplanted motion for summary adjudication or possibly bench trial; motion presented mixed question of law and fact concerning whether damage was peculiar to property owners’ properties, and, had Department and authority filed a motion for summary adjudication, parties would have been required to submit separate statements clarifying which facts were disputed and trial court’s order would have employed familiar summary judgment standard, specifying reasons for its decision with reference to evidence showing whether a triable issue of fact existed.




ZONING & PLANNING - MINNESOTA

AIM Development (USA), LLC v. City of Sartell

Supreme Court of Minnesota - July 15, 2020 - N.W.2d - 2020 WL 3980703

Landowner brought action against city, seeking a declaratory judgment that landowner was entitled to deposit waste generated from operations other than its paper mill into its landfill.

The District Court granted in part and denied in part parties’ cross-motions for summary judgment, and entered final judgment at parties’ request. Landowner appealed. The Court of Appeals affirmed. Landowner requested further review.

The Supreme Court held that:




LABOR & EMPLOYMENT - NEW HAMPSHIRE

Monadnock Regional School District v. Monadnock District Education Association, NEA-NH

Supreme Court of New Hampshire - July 8, 2020 - A.3d - 2020 WL 3815884

Public school district brought action against labor union, seeking declaratory judgment that arbitration award, transferring pool of excess funds set aside by district for employees’ healthcare coverage to union, was unlawful.

The Superior Court granted district’s motion for summary judgment, and denied union’s motion for partial summary judgment. Union appealed.

The Supreme Court held that:

Unspent funds in pool set aside by public school district for costs of health care coverage for employees that were members of labor union were encumbered by legally enforceable obligation for their expenditure, based on terms of collective bargaining agreement (CBA), and statute governing lapse of municipal appropriations, for purposes of determining whether funds had lapsed under statute; CBA section describing pool funds used mandatory language and created obligation to distribute funds in pool to union members, but gave union some discretion in implementing those distributions.

De novo, rather than deferential, standard of review applied to review of arbitrator’s decision when challenged by public school district, on district’s claim for declaratory judgment that arbitrator’s decision, holding that unspent funds set aside by district for employees’ healthcare had not lapsed, so labor union was entitled to distribute funds to employees pursuant to terms of collective bargaining agreement (CBA), was incorrect; general rule of deference to arbitral interpretations of CBAs did not apply, since terms of CBA explicitly indicated that the decision of the arbitrator would not have been binding on either party, and would have been advisory unless parties had mutually agreed otherwise.

Obligation under collective bargaining agreement (CBA), requiring distribution of pool of unspent funds set aside by public school district for payment of union members health care coverage costs to union member employees, attached to funds in pool before end of fiscal year in which they were appropriated, and thus funds did not lapse under statute governing lapse of municipal appropriations; unexpended funds were to have been placed in pool once district satisfied yearly contribution to premiums and buyout payments, as required by CBA, and thus district’s required obligation arose each year no later than moment it satisfied yearly contributions.

That funds in pool set aside by public school district to pay costs of employees’ healthcare coverage pursuant to collective bargaining agreement (CBA) were not expended within fiscal year in which they were set aside did not cause such funds to lapse under statute governing lapse of municipal appropriations; while statute required that obligations for expenditures have arisen before end of fiscal year in which funds were appropriated, statute placed no requirements on time at which required expenditure must have occurred.




PUBLIC PENSIONS - RHODE ISLAND

Andrews v. Lombardi

Supreme Court of Rhode Island - June 30, 2020 - A.3d - 2020 WL 3527913 - 2020 Employee Benefits Cas. 241,187

Beneficiaries of city pension plans brought action against city, challenging passage of city ordinance suspending annual cost-of-living adjustments (COLAs) until pension fund achieved 70% funding level, and alleging claims including promissory estoppel and violation of the Contract Clauses and Takings Clauses of the state and federal constitutions.

The Superior Court granted partial summary judgment for city, then entered judgment for city following bench trial. Beneficiaries appealed.

The Supreme Court held that:




IMMUNITY - UTAH

Erickson v. Canyons School District

Court of Appeals of Utah - June 11, 2020 - P.3d - 2020 WL 3089279 - 2020 UT App 91

High school student injured during a school assembly when fellow student threw a flagpole and it struck her filed an action alleging negligence, gross negligence, and vicarious liability against school district, high school, and other defendants, for failing to secure the flagpole, failing to adequately supervise students, and failing to provide medical assistance upon injury.

The Third District Court denied defendants’ motion to dismiss. School district petitioned for interlocutory appeal.

The Court of Appeal held that:

For purposes of proving the intentional tort of battery, “intent” denotes that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it; whether the actor intended the contact to be harmful or offend is immaterial, rather, the focus is on whether the actor intended to make a contact that is harmful or offensive at law.

A showing of “substantial certainty” for purposes of a civil battery claim requires more than a showing that the actor knew there was a high degree of risk, or strong probability that harmful or offensive contact would result from a contemplated action; instead, a party must show that the actor believed that the legally harmful or offensive contact was essentially unavoidable.




BOND VALIDATION - GEORGIA

Franzen v. Downtown Development Authority of Atlanta

Supreme Court of Georgia - June 29, 2020 - S.E.2d - 2020 WL 3580156

On July 14, 2010, the City of Atlanta designated a 150-acre parcel know as “The Gulch” as an Urban Redevelopment Area pursuant to the Urban Redevelopment Law. The City further designated The Gulch redevelopment area to be an “enterprise zone” under the Enterprise Zone Employment Act. The City intended to convert The Gulch into a live/work development.

The financing structure put in place to finance the redevelopment was summarized by the court as follows:

“To summarize in the simplest manner: (1) the Development Authority will issue revenue bonds in incremental amounts tied to progress in redevelopment of The Gulch enterprise zone; (2) the revenue bonds will be available only to the Developer, who will earn the bonds with development and construction work completed within The Gulch using the Developer’s own money; (3) the debt service for the bonds will be funded exclusively by infrastructure fees; (4) the City will collect these infrastructure fees from businesses within The Gulch and pass them along to the Development Authority for payment of the bonds; and (5) the Developer has certain strictly limited rights to enforce the transfer of collected infrastructure fees, but has no right whatsoever to any other funds of the public entities involved in The Gulch project.”

A bond validation hearing was set for December 10, 2018. On the morning of the hearing, Intervenors moved to intervene and filed an answer to the Development Authority’s petition for validation. The Intervenor’s filing contained nine objections.

(a) Citing OCGA § 36-82-77 (a), the Intervenors contend that the trial court erred by failing to hold a wholly separate hearing for the purpose of considering their nine timely objections to the bond validation petition.

The court held that, pursuant to OCGA § 36-82-77 (a), a thorough hearing was conducted in which Intervenors participated and presented evidence. There exists no right to an separate, independent hearing.

(b) The Intervenors next argue that the trial court erred in its determination that additional objections to the bond validation filed by them after the first full day of hearings on December 10, were untimely.

The court found that, because the Intervenors were allowed to intervene at the first bond validation hearing on December 10, the Intervenors could only amend their pleadings after that date to add objections if granted leave to do so by the trial court. The trial court found that the Intervenors’ amendments were untimely, and did not allow them to be filed. This was not an abuse of the trial court’s broad discretion.

(c) The Intervenors next contend that the trial court failed to make legally adequate findings of fact and conclusions of law as to whether the bond proposal and its corresponding security provided by infrastructure fees are sound, feasible, and reasonable.

“To the contrary, even in the trial court’s isolated conclusion cited above, the court expressly explained that it relied on “evidence adduced at the hearing, including the fact that the bonds will be issued only upon proof of work completed and expenditures made[.]” And, during the three days of hearings, extensive evidence was, in fact, presented regarding the mechanics of the bond financing structure, which is included in the record and discussed in the trial court’s lengthy orders. Therefore, contrary to the Intervenors’ contentions, there is a clear statement of the trial court’s reasoning, and there is a sufficient basis on which this Court can assess that conclusion.”

(d) Citing Article IX, Section II, Paragraph VII (c) of the Georgia Constitution of 1983,22 the Intervenors maintain that the trial court incorrectly held that the intergovernmental agreement between the City and the Development Authority is lawful. Specifically, the Intervenors contend that the City lacks the authority to perform its obligations under the IGA.

“To qualify as a valid intergovernmental contract, an agreement must: (1) be a contract between political subdivisions of the state; (2) not last for more than 50 years; (3) be “for joint services, for the provision of services, or for the joint or separate use of facilities or equipment;” and (4) “deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.” Intervenors contend that requirement (4) has not been met, contending that the City is not authorized to assess infrastructure fees and provide them as payment for the Bonds.

The court disagreed, citing OCGA § 36-88-6 (g) (4) which explicitly provides:

“By resolution or ordinance, the local governing body designating and creating an enterprise zone under this subsection may assess and collect annual enterprise zone infrastructure fees from each retailer operating within the boundaries of the project in an amount not to exceed, in aggregate, the amount of sales and use tax on transactions of such retailer exempted under paragraph (2) of this subsection, which fees may be pledged by such local governing body, directly or indirectly, as security for revenue bonds issued for development or infrastructure within the enterprise zone.”

(e) The Intervenors contend that the imposition of infrastructure fees under the Enterprise Zone Employment Act violated Article IX, Section II, Paragraph VII (c)30 of the Georgia Constitution, the “Community Redevelopment Provision.” The Intervenors maintained that a municipality may be authorized to levy infrastructure fees only pursuant to that provision, which authorizes the General Assembly to enact general laws allowing the creation of enterprise zones and tax exemptions therein for certain qualifying businesses.

The trial court rejected this argument, finding that the Community Redevelopment Provision was not an exclusive grant of legislative authority. To the contrary, the trial court recognized that the General Assembly has the power to authorize municipalities to levy fees under Article III, Section VI, Paragraph I, which gives the legislature “the power to make all laws not inconsistent with this Constitution … which it shall deem necessary and proper for the welfare of the state.” The trial court further held that nothing in the Community Redevelopment Provision in any way prohibits, precludes, or limits the exercise of such powers. Thus, the Intervenors failed to show a “clear and palpable” conflict between the statute and the Constitution, as would be required to overcome the presumption that there was a proper exercise of plenary legislative power

(f) The Intervenors next contended that the 2017 Enterprise Zone Amendment is unconstitutional because it allows an “area-wide tax exemption” that exceeds the authority granted in the Community Redevelopment Provision. Essentially, the Intervenors appeared to be arguing that the 2017 Amendment completely omits the requirement that exemptions be tied to qualifying businesses and service enterprises.

The court held that the Community Redevelopment Provision, Article IX, Section II, Paragraph Vll (c) of the 1983 Georgia Constitution, authorizes the General Assembly to provide for the creation of enterprise zones allowing for “exemptions, credits, or reductions of any tax or taxes levied in such zones by state, a county, or a municipality.” These exemptions may be given to “such persons, firms, or corporations which create job opportunities within the enterprise zone for unemployed, low, and moderate income persons in accordance with the standards set forth in such general law.”

(f) [sic] The Intervenors argued that the bond issuance is not sound, feasible, and reasonable because projected infrastructure fee revenues are inadequate to secure Bonds in an amount of $1.25 billion.

This argument, however, does not account for the incremental nature of the financing scheme, and therefore lacks merit. To validate the bond proposal in this case, the trial court was not required to find that $633 million of infrastructure fees over a 30-year period, as conservatively projected by the Development Authority’s experts, would service bonds in the possible principal amount of $1.25 billion. The Bonds are “draw-down” bonds that will be issued only if sufficient infrastructure fees are projected to service the bonds. So, if only $633 million of infrastructure fees are projected to be generated by The Gulch, only an amount of Bonds that may be adequately serviced by that amount of fees will be issued.




TORT CLAIMS - NEBRASKA

Saylor v. State

Supreme Court of Nebraska - June 19, 2020 - N.W.2d - 306 Neb. 147 - 2020 WL 3394726

Inmate brought tort claims against State arising out of instances included alleged aggravation of post-traumatic stress disorder and deprivation of use of pain-easing devices.

The District Court dismissed action. Inmate appealed.

The Supreme Court held that:




IMMUNITY - NEBRASKA

Lambert v. Lincoln Public Schools

Supreme Court of Nebraska - June 19, 2020 - N.W.2d - 306 Neb. 192 - 2020 WL 3395331

Dog bite victims, who were an elementary school student and her mother, brought tort action against public school district under Political Subdivisions Tort Claims Act (PSTCA) alleging that school was negligent in failing to enforce a policy of “no dogs” on playground and in failing to supervise playground when dog bites occurred after school.

The District Court granted summary judgment to school district. Bite victims appealed.

The Supreme Court held that school district was immune from suit under discretionary function exception of PSTCA.

Public school district had immunity from suit under discretionary function exception of Political Subdivisions Tort Claims Act (PSTCA), with respect to tort claims of dog bite victims, who were a student and her mother, alleging negligence in elementary school’s failure to enforce a policy of “no dogs” on playground and in failing to supervise playground when dog bites occurred after regular school day had ended and students were dismissed for the day; school’s decision to enforce its “no dogs” policy only during school hours and its decision not to supervise playground area at all after school hours involved the exercise of judgment, and it was precisely the kind of judgment the discretionary function exception was designed to shield.




MUNICIPAL ORDINANCE - OHIO

State ex rel. Magsig v. Toledo

Supreme Court of Ohio - June 24, 2020 - N.E.3d - 2020 WL 3444420 - 2020 -Ohio- 3416

Driver sought a writ of prohibition to prevent city from conducting an administrative hearing to adjudicate her liability for violating a municipal traffic ordinance.

The Supreme Court held that city lacked jurisdiction to carry out its red-light and speeding-camera civil-enforcement system.

City lacked jurisdiction to carry out its red-light and speeding-camera civil-enforcement system; statute provided that a municipal court had “jurisdiction over the violation of any ordinance of any municipal corporation within its territory, including exclusive jurisdiction over every civil action concerning a violation of a state traffic law or a municipal traffic ordinance,” and city ordinance allowed an administrative hearing officer to adjudicate noncriminal traffic-law violation in contravention of statute’s language.




ANNEXATION - OHIO

State ex rel. Xenia v. Greene County Board of Commissioners

Supreme Court of Ohio - June 25, 2020 - N.E.3d - 2020 WL 3456716 - 2020 -Ohio- 3423

City that sought type-2 annexation of township’s land, whereby residents of the annexed land were to become residents of both city and township, brought action requesting a writ of mandamus compelling county to approve city’s annexation petition.

The Second District Court of Appeals denied county’s motion for summary judgment, granted city’s motion for summary judgment, and issued the writ. County appealed.

The Supreme Court held that:

Writ of mandamus was proper vehicle to compel county to grant city’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township; annexation statute’s subsection setting forth the conditions for granting a such petition did not contain the sort of open-ended language that governed traditional annexation, which entailed a factual determination concerning the general good of the annexed territory, but instead the subsection afforded the county no discretion if the petition satisfied all of the subsection’s conditions, and county’s performance of its duties under the statute did not, on its own, foreclose the possibility that the county could be compelled to grant the petition in a mandamus action.

Contiguity condition set forth in type-2 annexation statute established the sole contiguity requirement for such annexation, whereby residents of the annexed land became residents of both city and township, as relevant to the statute’s condition that a petition for type-2 annexation meet all of the requirements set forth in statute governing the filing of annexation petitions, which contained its own contiguity requirement; unlike the filing statute, the type-2 annexation statute’s contiguity condition defined the minimum degree of touching necessary in a type-2 setting, and application of contiguity principles crafted outside the type-2 setting would have rendered the specific limitations embodied in the type-2 annexation statute’s contiguity condition meaningless.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the territory proposed for annexation have a boundary contiguous with the municipal corporation of at least 5% of the territory’s perimeter; the city calculated a shared boundary of 5.31%, while the county, which opposed annexation, calculated a boundary of 5.03%, and the effect that city’s future plans might have had on the percentage did not impact the determination of whether the city’s petition satisfied the contiguity condition.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the annexation not create an unincorporated area of a township that was completely surrounded by the territory proposed for annexation; although the proposed annexation would create two township islands, the condition did not forbid township islands created by the coupling of pre- and post-annexation boundaries, and here the territory proposed for annexation would form merely one side of a triangular-shaped island and one side of a quadrilateral-shaped island.

City’s petition for type-2 annexation, whereby residents of the annexed land were to become residents of both city and township, satisfied the type-2 annexation statute’s condition that the city agree to assume maintenance of a street or highway that would be divided or segmented by a boundary line between the city and township; city stated in its petition that it would correct road maintenance problems, city was not required to present to the township an agreement concerning road-maintenance issues, and contention that city would fail to correct problems in light of its alleged past failures to do so was speculative and did not create a fact issue as to whether city in fact agreed in its petition to correct road-maintenance problems.




PUBLIC PENSIONS - RHODE ISLAND

Andrews v. Lombardi

Supreme Court of Rhode Island - June 30, 2020 - A.3d - 2020 WL 3527917

Retirees from city’s police and fire departments brought action seeking declaratory judgment that state statute and city ordinance terminating their health care benefits and requiring them to enroll in Medicare upon attaining eligibility constituted breach of contract, and violated Contracts Clause, Due Process Clause, and Takings Clause of United States and Rhode Island Constitutions.

Following bench trial, the Superior Court entered judgment in city’s favor, and retirees appealed.

The Supreme Court held that city impaired its contractual obligation to retirees.

City impaired its contractual obligation to retired police officers and firefighters, in violation of Contracts Clause, when it adopted ordinance terminating their health care benefits and requiring them to enroll in Medicare upon attaining eligibility, where collective bargaining agreements required city to pay for “equivalent coverage” if retirees obtained other coverage, equivalent coverage would require city to pay for excess or gap coverage, and city was not paying for such excess or gap coverage for retirees who did not opt into settlement agreement with city.




ZONING & PLANNING - VERMONT

In re Hopkins Certificate of Compliance

Supreme Court of Vermont - June 19, 2020 - A.3d - 2020 WL 3396443 - 2020 VT 47

Applicant sought change-of-use permit allowing him to use his residential property as a law office. Town’s Development Review Board approved site plan, making specific note of applicant’s agreement that line of evergreens planted to screen parking area would “consist of arborvitae” as requested by owner of abutting residential property, and issued change-of-use permit.

After Zoning Administrator (ZA) granted applicant a temporary certificate of compliance, and then a second after the first expired, Board determined that requirements for temporary certificate had not been met, except that arborvitae screen was in compliance, and ordered applicant to come into full compliance with permit and approved site plan.

Owner, proceeding pro se, appealed to the environmental division, and while appeal was pending, ZA issued applicant a final certificate of compliance. On the parties’ cross-motions for summary judgment, the Superior Court, Environmental Division, dismissed action for lack of jurisdiction. Owner appealed.

The Supreme Court held that:




ZONING & PLANNING - CALIFORNIA

Aids Healthcare Foundation v. City of Los Angeles

Court of Appeal, Second District, Division 3, California - June 15, 2020 - Cal.Rptr.3d - 2020 WL 3168551 - 20 Cal. Daily Op. Serv. 5710 - 2020 Daily Journal D.A.R. 5823

Affordable housing organization brought action against city for violations of federal Fair Housing Act (FHA) and state Fair Employment and Housing Act (FEHA), alleging four multi-use development projects approved by city had disparate impact on Black and Latino residents.

The Superior Court sustained demurrers by city and real parties in interest, which were projects’ owners and developers, without leave to amend. Organization appealed.

The Court of Appeal held that:

City’s approval of development projects to revitalize area constituted a policy or practice, as necessary to support disparate-impact discrimination claims under Fair Housing Act (FHA) and Fair Employment and Housing Act (FEHA), where city approved projects as part of its implementation of its existing land use policies, and approval process included debate in public hearings and written communications about what community benefits should be included as part of development agreements.

City’s land use policies and their implementation, including through approval of development projects to revitalize area, did not affirmatively remove or prevent creation of fair housing in and of themselves, and, thus, city’s policies were not artificial, arbitrary, and unnecessary barrier to fair housing, as necessary to support claims that policies had disparate racial impact in violation of Fair Housing Act (FHA) and Fair Employment and Housing Act (FEHA); any increase in rent prices resulting from projects would be caused by private landlords, not by city itself, and projects did not cause net loss of existing affordable housing units, but, rather, would either exist on currently-unoccupied sites or would increase number of affordable housing units on sites.

Halting development of housing projects until city’s initiation of measures to mitigate effects of gentrification was not appropriate remedy for any disparate-impact violation of Fair Housing Act (FHA) or Fair Employment and Housing Act (FEHA) resulting from city’s approval of housing projects; voiding city’s approval of projects would not make affordable housing more available to racial minorities, and FHA and FEHA were not intended to impose new development policies on housing authorities, but, rather, to eliminate policies forming impermissible barriers to fair housing.

Affordable housing organization that brought action against city for violations of Fair Housing Act (FHA) and Fair Employment and Housing Act (FEHA) failed to satisfy its burden, on appeal from decision sustaining demurrer without leave to appeal, that there was a reasonable possibility it could amend defects in complaint, where organization did not set forth specific factual allegations it would plead if amendment were allowed or legal authority showing viability of new or amended causes of action, but, rather, asked Court of Appeal to provide guidance as to what additional evidence might be required to support its disparate-impact claims, which constituted improper request for court to rewrite organization’s complaint.




IMMUNITY - COLORADO

Sawyers v. Norton

United States Court of Appeals, Tenth Circuit - June 23, 2020 - F.3d - 2020 WL 3424927

Pretrial detainee in county jail, whose delusional behavior deteriorated to the point that he removed his eyeball from its socket, filed action raising § 1983 deliberate indifference and state-law negligence claims against sheriff and on-duty law enforcement corrections officers, in their individual and official capacities.

The United States District Court for the District of Colorado granted in part and denied in part defendants’ motion for summary judgment. Defendants appealed.

The Court of Appeals held that:




BALLOT INITIATIVES - COLORADO

Matter of Title, Ballot Title and Submission Clause for 2019-2020 #315

Supreme Court of Colorado - June 22, 2020 - P.3d - 2020 WL 3407177 - 2020 CO 61

Initiative opponent petitioned for review of Title Board decisions setting title and ballot title for initiative to create and administer a preschool program funded by state taxes on nicotine and tobacco products.

The Supreme Court held that:

Initiative to create and administer a preschool program funded by state taxes on nicotine and tobacco products did not violate single subject requirement, even though initiative reallocated to the preschool program existing state cigarette and tobacco tax revenue from local governments that banned sales of tobacco and nicotine products; initiative raised money through a new sales tax on vaping products and reallocated a portion of cigarette and tax revenue from education, health, and cessation programs, reallocation provisions were implementing provisions necessarily and properly related to single subject, and voters would not be surprised to learn that localities choosing to ban the sales of tobacco and nicotine products would lose tax revenue derived from the sales of such products.

Ballot title for initiative to amend constitution and create and administer preschool program funded by state taxes on nicotine and tobacco products satisfied clear title requirement, even though title mentioned amount of new tax on vaping products without noting constitutional and statutory bases, did not inform voters about reallocation of tax revenue from jurisdictions that banned tobacco and nicotine products, and did not advise voters of reallocation of funds from education, health, and cessation programs; creation of tax by constitution or statutes was not central feature and was not shown to influence voters, reallocation provision effective in case of sales ban was one of several, and Board was not required to set forth in the title all of details of each funding mechanism.




PUBLIC UTILITIES - HAWAII

Matter of Gas Company, LLC

Supreme Court of Hawai‘i - June 9, 2020 - P.3d - 2020 WL 3055315

Environmental organization and organization representing native Hawai‘ian interests appealed Public Utilities Commission’s (PUC) decision to approve gas utility rate increase allowing gas company to pass costs of two liquid natural gas projects to its customers.

The Supreme Court held that:




EMINENT DOMAIN - ILLINOIS

City of Chicago v. Eychaner

Appellate Court of Illinois, First District, First Division - May 11, 2020 - N.E.3d - 2020 IL App (1st) 191053 - 2020 WL 2322731

City brought action to condemn landowner’s property through eminent domain and landowner filed traverse and motion to dismiss, challenging constitutionality of the taking.

The Circuit Court, following jury trial, found that city could use eminent domain to take landowner’s property and ordered just compensation, which was later affirmed on appeal but remanded for new trial on just compensation. On remand, the Circuit Court entered judgment based upon new jury award for just compensation, denied landowner’s posttrial motion with regard to taking’s constitutionality, and denied landowner’s motion to reconsider original traverse motion. Landowner appealed.

The Appellate Court held that:

Landowner failed to demonstrate that newly discovered evidence of new zoning and financing circumstances of city’s plan to redevelop would change outcome of constitutionality of taking of landowner’s property to warrant granting motion for reconsideration of original traverse and motion to dismiss; city’s tax increment finance redevelopment plan that Appellate Court relied on to affirm taking remained in effect at time motion to reconsider was filed, new zoning aspects of city’s plan to allow broader economic redevelopment beyond strict industrial uses and tax increment plan together carried out city’s purpose to promote economic revitalization in area, and area around landowner’s property continued to qualify as conservation area that ran risk of blighting without intervention by city.




EMINENT DOMAIN - NEW YORK

National Fuel Gas Supply Corporation v. Schueckler

Court of Appeals of New York - June 25, 2020 - N.E.3d - 2020 WL 3453939 - 2020 N.Y. Slip Op. 03563

Natural gas company brought action to acquire, by eminent domain, temporary construction easements and a permanent easement over respondent’s property in order to facilitate construction and operation of natural gas pipeline.

The Supreme Court granted petition. Property owner appealed. The Supreme Court, Appellate Division, reversed and dismissed petition. Gas company appealed.

The Court of Appeals held that:

Federal Energy Regulatory Commission’s (FERC) issuance of certificate of public convenience and necessity to natural gas company to build natural gas pipeline satisfied provision of Eminent Domain Procedure Law (EDPL) exempting a condemnor from certain procedures required prior to initiating condemnation proceedings if it received approval from an agency after submitting factors similar to those required by EDPL; company submitted materials to FERC concerning the public benefit, use, and need for proposed pipeline, FERC considered the public use, benefit or purpose to be served, approximate location of project, and general effect of project on environment and residents, FERC considered positions of numerous stakeholders, and FERC concluded that an environmental impact statement was not required.

Conditions in Federal Energy Regulatory Commission’s (FERC) certificate of public convenience and necessity issued to natural gas company to build pipeline, including obtaining a water quality certificate and other pre-construction conditions that might have affected the ultimate completion of the project, did not preclude company from pursuing eminent domain under Eminent Domain Procedure Law (EDPL) before all pre-construction conditions were fulfilled; such conditions were not preconditions to the validity of the certificate itself and FERC could have conditioned company’s eminent domain authority on completion of some act or obligation, but did not do so.




COLLECTIVE BARGAINING AGREEMENTS. - RHODE ISLAND

City of Cranston v. International Brotherhood of Police Officers, Local 301

Supreme Court of Rhode Island - June 23, 2020 - A.3d - 2020 WL 3423789

City brought action for declaratory relief against police union and former police sergeant seeking to enjoin union from arbitrating grievance it filed alleging that removal of sergeant from injured-on-duty status and from his employment violated collective bargaining agreement.

The Superior Court granted union’s motion to compel arbitration after finding that sergeant had not retired and thus remained member of bargaining unit and entered judgment in favor of union and sergeant. City appealed.

The Supreme Court held that:

Retirement board for Municipal Employees Retirement System (MERS) did not have authority to unilaterally retire police sergeant, who had injured-on-duty status, after he applied for ordinary disability retirement; although it was necessary for board to grant employee’s application for ordinary disability retirement before employee could retire, board neither retired employee nor terminated employment with employer, statute governing retirement system for public officers and employees did not indicate that General Assembly endowed board with statutory authority to unilaterally retire employee, voluntary retirement required that employee make decision to terminate his own employment, and board required affirmative action by employee before it would process payment of retirement allowance.




CHARTER SCHOOLS - TEXAS

El Paso Education Initiative, Inc. v. Amex Properties, LLC

Supreme Court of Texas - May 22, 2020 - S.W.3d - 2020 WL 2601641 - 63 Tex. Sup. Ct. J. 1166

Landlord/developer filed suit against charter school district for anticipatory breach of lease executed by district superintendent for development of new charter school, and for compensatory damages and attorney fees.

The County Court at Law denied district’s plea to jurisdiction, on grounds of immunity, and district appealed. The El Paso Court of Appeals affirmed in relevant part, on basis that fact issues remained whether lease was properly executed, as condition precedent to waiver of school district’s government immunity. Petition for review was granted.

The Supreme Court held that:




EMINENT DOMAIN - UTAH

Utah Department of Transportation v. Boggess-Draper Company, LLC

Supreme Court of Utah - June 11, 2020 - P.3d - 2020 WL 3118665 - 2020 UT 35

The Department of Transportation (DOT) brought eminent domain action against property owner.

The Third District Court entered judgment on jury verdict awarding property owner over $1.7 million. the DOT appealed, and property owner cross-appealed.

The Supreme Court, Lee held that:




HIGHWAYS - VERMONT

Fortieth Burlington, LLC v. City of Burlington

Supreme Court of Vermont - June 19, 2020 - A.3d - 2020 WL 3396444 - 2020 VT 45

Owner of real property abutting highway filed petition and complaint alleging that necessity hearing and resulting decision to acquire property and lay out new section of road were void because city did not comply with statutory notice requirements.

Superior Court granted city’s motion for summary judgment, and property owner appealed.

The Supreme Court held that owner did not have a “legal interest of record in the property affected” as required for standing to appeal.

Owner of land which abutted highway did not have a “legal interest of record in the property affected” as required for standing to appeal city’s decision regarding the necessity of highway construction project, which included obtaining temporary and permanent easements, as owner did not have an interest in any property through which the highway was laid out.

Necessity hearing regarding acquisition of easements for road construction project was informational and not quasi-judicial, and thus abutting landowner did not have due process right to present evidence and testimony or to provide cross-examination; necessity hearing was not a contested hearing that entitled participants to evidentiary requirements, like presenting evidence or conducting cross-examination, and statute required only that a municipality must examine premises and hear any interested parties.

Even accepting that owner of property abutting road construction project was entitled to notice of necessity hearing regarding acquisition of easements, which did not include owner’s property, city’s failure to provide that notice was not an error of jurisdictional magnitude, where city provided general notice and landowner actually participated in the proceeding.




IMMUNITY - WASHINGTON

W.H. v. Olympia School District

Supreme Court of Washington - June 18, 2020 - P.3d - 2020 WL 3275612

The parents of students who were sexually abused by school bus driver brought action, individually and on behalf of their children, against the school district and individual defendants, alleging the sexual abuse constituted sex discrimination in a place of public accommodation under the Washington Law Against Discrimination (WLAD).

The United States District Court for the Western District of Washington granted defendants’ motions for summary judgment in part, and denied them in part. Defendants appealed. The United States Court of Appeals affirmed in part, reversed in part, and remanded. On remand, the United States District Court for the Western District of Washington certified two questions to the Washington Supreme Court in connection with the meaning of the WLAD.

The Supreme Court held that:




BALLOT INITIATIVES - ALASKA

Meyer v. Alaskans for Better Elections

Supreme Court of Alaska - June 12, 2020 - P.3d - 2020 WL 3117316

Sponsor of ballot initiative instituting three substantive changes to Alaska’s election laws brought action challenging lieutenant governor’s certification denial based on finding that initiative violated constitutional requirement that proposed initiative bills be confined to one subject.

The Superior Court granted summary judgment in favor of sponsor and denied lieutenant governor’s motion for summary judgment, and entered final judgment for sponsor. Lieutenant governor and state’s elections office appealed.

The Supreme Court held that initiative embraced single subject of election reform, and, thus, initiative complied with Alaska Constitution’s one-subject rule.

Ballot initiative instituting three substantive changes to Alaska’s election laws, replacing party primary system with open, nonpartisan primary, establishing ranked-choice voting in general election, and mandating new disclosure and disclaimer requirements to existing campaign finance laws, embraced single subject of election reform and shared nexus of election administration, and, thus, initiative complied with Alaska Constitution’s one-subject rule, even if initiative could be split into separate measures, where all substantive provisions fell under same subject matter of elections, sought to institute election reform process, and changed single statutory title.




ENVIRONMENTAL - CALIFORNIA

Golden Door Properties, LLC v. County of San Diego

Court of Appeal, Fourth District, Division 1, California - June 12, 2020 - Cal.Rptr.3d - 2020 WL 3119041 - 20 Cal. Daily Op. Serv. 5357 - 2020 Daily Journal D.A.R. 5754

Objectors filed separate petitions against county for writ of mandate and for declaratory and injunctive relief challenging county’s approval of climate action plan (CAP), guidelines for determining significance of climate change, threshold of significance for greenhouse gas (GHG) emissions, and supplemental environmental impact report (SEIR), which included GHG mitigation measure allowing purchase of carbon offsets anywhere in the world.

Actions were consolidated. The Superior Court granted peremptory writ of mandate ordering county to set aside its approvals and certification of SEIR, entered permanent injunction prohibiting county from relying on GHG mitigation measure, and, subsequently, declared that CAP and final SEIR were legally inadequate. County appealed, and appeals were consolidated.

The Court of Appeal held that:




EMINENT DOMAIN - GEORGIA

Georgia Department of Transportation v. Mixon

Court of Appeals of Georgia - June 10, 2020 - S.E.2d - 2020 WL 3071468

Landowner sued the Department of Transportation, alleging continuing nuisance and inverse condemnation stemming from flooding on property following a road widening project, and seeking injunctive relief and compensation.

The Superior Court granted in part and denied in part Department’s motion to dismiss. Department filed application for interlocutory appeal, which was granted.

The Court of Appeals held that:




MUNICIPAL ORDINANCE - HAWAII

State v. Zowail

Supreme Court of Hawai‘i - June 15, 2020 - P.3d - 2020 WL 3167656

Defendant was convicted in the District Court of violating city ordinance prohibiting engaging in business on a public sidewalk where the operation impeded the public.

Defendant appealed. The Intermediate Court of Appeals affirmed. Certiorari was granted.

The Supreme Court held that:




LIABILITY - ILLINOIS

Dynek v. City of Chicago

Appellate Court of Illinois, First District, Fourth Division - June 11, 2020 - N.E.3d - 2020 IL App (1st) 190209 - 2020 WL 3097469

Bicyclist brought action against city for negligence allegedly stemming from injuries sustained when, during his commute to work, his bicycle’s front tire went into a hole created by a broken grating bar on a bridge.

The Circuit Court entered judgment on the jury’s verdict in favor of city. Bicyclist appealed.

The Appellate Court held that:




PUBLIC RECORDS - NEW HAMPSHIRE

Martin v. City of Rochester

Supreme Court of New Hampshire - June 9, 2020 - A.3d - 2020 WL 3053479

Plaintiff brought action alleging that city’s technical review group (TRG) was public body for purposes of Right-to-Know Law.

After bench trial, the Superior Court entered judgment in city’s favor, and plaintiff appealed.

The Supreme Court held that:




ZONING & PLANNING - NEW YORK

Red Wing Properties, Inc. v. Town of Rhinebeck

Supreme Court, Appellate Division, Second Department, New York - June 3, 2020 - N.Y.S.3d - 2020 WL 2892671 - 2020 N.Y. Slip Op. 03119

Quarry owner filed petition pursuant to article 78 seeking review of decision of city zoning board of appeals, which denied owner’s application for a determination that it has a vested right to mine its entire parcel of property as a prior nonconforming use, and filed action for a declaratory judgment.

Owner filed motion, in effect, for summary judgment, which the Supreme Court, Dutchess County denied owner’s petition, and dismissed proceeding. Owner appealed.

The Supreme Court, Appellate Division, held that quarry owner established that it had a vested right to mine non-quarried portion as a nonconforming use.

Where the owner of a quarry engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of the protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.

Quarry owner demonstrated its intent to appropriate 94 acre, non-quarried portion of its property to the business of quarrying, as required to establish that it had a vested right to mine non-quarried portion as a nonconforming use in existence when city enacted zoning ordinance, which allowed mining on only those lands upon which there were existing, Department of Environmental Conservation (DEC) permitted mining operations; before ordinance was enacted, owner amended its application to the DEC, which sought a permit to engage in mining activities throughout its entire property, to cover only 94 acres of property.




SCHOOLS - OHIO

State ex rel. Cook v. Bowling Green City School District Board of Education

Supreme Court of Ohio - June 8, 2020 - N.E.3d - 2020 WL 3044137 - 2020 -Ohio- 3252

Elector sought a mandamus to compel school board to certify school-district-transfer proposal to county board of elections for placement on August 4, 2020 special-election ballot and writ of mandamus to compel the board of elections to place transfer proposal on special-election ballot.

The Supreme Court held that:

School board was not prejudiced by any alleged delay in elector filing mandamus petition seeking to compel school board to certify school-district-transfer proposal to county board of elections for placement on special-election ballot, and thus elector’s mandamus action was not barred by the doctrine of laches; elector’s claim became ripe on date when the school board failed to take action by the special-election certification deadline, elector filed his complaint two days later, and the case would have been automatically expedited so it could be placed on special election ballot.

Statute governing petitions to transfer school district territory, which provides that the school board shall “promptly” certify the proposal to the board of elections and file the proposal, along with a map of the territory to be transferred, with the State Board of Education, imposed a mandatory, ministerial duty on school board to certify transfer petitions and did not provide discretion to refuse to submit a petition to the board of elections based on the school board’s own determination that the petition was invalid.

Elector was entitled to a writ of mandamus ordering school board to certify school-district-transfer proposal to the board of elections for placement on August 4 special-election ballot, and file the proposal and a map of the affected territory with the State Board of Education; statute imposed mandatory duty on school board to “promptly” certify the proposal to the board of elections, and statute did not provide school board with discretion.




DEVELOPMENT MITIGATION FEES - CALIFORNIA

North Murrieta Community, LLC v. City of Murrieta

Court of Appeal, Fourth District, Division 2, California - June 8, 2020 - Cal.Rptr.3d - 2020 WL 3046093 - 20 Cal. Daily Op. Serv. 5246 - 2020 Daily Journal D.A.R. 5465

Master developer of large city development, on its own behalf and as assignee of purchaser of subset of properties, filed petition for writ of mandate against council of local governments and city, seeking return of development mitigation fees newly imposed by ordinance, which developer contended exceeded those permissible under vesting tentative map.

The Superior Court dismissed petition, holding development agreement entered into by city and developer modified fees city could collect. Developer appealed.

The Court of Appeal held that development agreement extending term of vesting tentative map allowed city to impose new, generally applicable development mitigation fees.

Development agreement that city entered into with developer to extend term of vesting tentative map did not extend developer’s right, under original vesting tentative map, to be free of additional fees, but, rather, contractually permitted city to impose new, generally applicable development mitigation fees; in development agreement, developer specifically agreed to allow city to impose new mitigation fees if existing fees were insufficient, development agreement was contractually binding on both city and developer, and altering protections of vesting tentative map, including mitigation fee protection, was explicit and critical part of development agreement.




EMINENT DOMAIN - COLORADO

Forest View Company v. Town of Monument

Supreme Court of Colorado - June 8, 2020 - P.3d - 2020 WL 3041235 - 2020 CO 52

Town filed petition in condemnation with regard to parcel of land it had purchased in subdivision for purpose of building water tower, seeking to extinguish restrictive covenant that restricted use of all land in subdivision to residential purposes.

Property owners in same subdivision intervened, claiming they were owned reasonable compensation for the decrease in value to their lots and homes due to lifting the restrictive covenant from town’s parcel.

The District Court found that property owners had a compensable property interest. Town appealed. Court of Appeals reversed. Certiorari was granted.

The Supreme Court held that restrictive covenant was not a compensable property interest.

Restrictive covenant on properties in subdivision, which limited construction to single-family residences, was not a compensable property interest in town’s eminent domain proceeding, in which town sought to extinguish covenant on parcel of property it purchased in order to build water tower, and thus other property owners in subdivision were not entitled to just compensation due to violation of covenant on town’s parcel.




MUNICIPAL ADVISORS - INDIANA

City of Marion v. London Witte Group, LLC

Court of Appeals of Indiana - April 28, 2020 - N.E.3d - 2020 WL 2029887

City brought action against company that provided financial advice to city regarding financing for a construction project and alleged claims for negligence, breach of fiduciary duty, and constructive fraud and unjust enrichment.

The Superior Court granted in part and denied in part financial advisor’s motion for summary judgment. City appealed and financial advisor cross-appealed.

The Court of Appeals held that:

Continuous representation doctrine did not apply to toll statute of limitations period of city’s negligence and breach of fiduciary duty claims against city’s financial advisor on city’s construction project; specific matter in which alleged misconduct occurred was not construction project as whole but instead was issue of securing bond as part of financing project, which concluded within first or second year of project, every witness who addressed issue understood that financial advisor’s responsibilities concluded when bond issue closed, and compensation structure, in paying financial advisor out of bond proceeds, confirmed that bond issue was discrete engagement.




IMMUNITY - IOWA

Breese v. City of Burlington

Supreme Court of Iowa - June 12, 2020 - N.W.2d - 2020 WL 3107685

Bicyclist brought negligence action against city arising from accident in which bicyclist struck tree branch while riding on sewer box that was connected to a public pathway and fell approximately ten feet from sewer box to ground, alleging negligent conduct in connecting sewer box to pathway without providing guardrails and in failing to provide warning signs.

The District Court granted summary judgment for city. Bicyclist appealed.

The Supreme Court held that:




MUNICIPAL ORDINANCE - MINNESOTA

Minnesota Chamber of Commerce v. City of Minneapolis

Supreme Court of Minnesota - June 10, 2020 - N.W.2d - 2020 WL 3067712

Chamber of commerce and others brought action against city for declaratory relief and temporary injunction against enforcement of city ordinance that required employers to provide employees with sick and safe leave.

The District Court granted partial temporary injunctive relief, enjoining city from enforcing ordinance against employers located outside city boundaries. Both parties appealed, and the Court of Appeals affirmed. City amended ordinance to require leave time accrual only for work performed within city boundaries and use of leave time only when employee was scheduled to work within city boundaries. City and chamber both moved for summary judgment. The District Court granted chamber’s motion in part, enjoining enforcement as applied to any employer residing outside city boundaries, but denying motion as to chamber’s claim that ordinance was preempted by state law. City appealed and chamber cross-appealed. The Court of Appeals affirmed in part, reversed in part, and vacated permanent injunction. Chamber’s petition for review was granted.

The Supreme Court held that:




PUBLIC RECORDS - NEW HAMPSHIRE

Seacoast Newspapers, Inc. v. City of Portsmouth

Supreme Court of New Hampshire - May 29, 2020 - A.3d - 2020 WL 2791849 - 2020 L.R.R.M. (BNA) 200,418

Newspaper owner filed petition pursuant to Right-to-Know Law for disclosure of arbitration decision concerning termination of police officer by city for misconduct.

Superior Court denied the petition. Owner appealed.

The Supreme Court held that:

 

 




ZONING & PLANNING - NEW YORK

Neeman v. Town of Warwick

Supreme Court, Appellate Division, Second Department, New York - June 3, 2020 - N.Y.S.3d - 2020 WL 2892696 - 2020 N.Y. Slip Op. 03113

Landowners filed article 78 petition against campground and city zoning board of appeals seeking an annulment of board’s decision granting campgrounds application for an area variance, and filed further action seeking a declaration that board segmented its environmental review.

The Supreme Court, Orange County, denied landowners’ petition, and entered order, in effect, dismissing action. Landowners appealed.

The Supreme Court, Appellate Division, held that:




IMMUNITY - WYOMING

Craft v. State ex rel. Wyoming Department of Health

Supreme Court of Wyoming - June 10, 2020 - P.3d - 2020 WL 30717552020 WY 70

Deceased patient’s adoptive brother, who was also patient’s biological father, and patient’s appointed personal representative brought action against state hospital psychologist and state hospital, alleging numerous § 1983, wrongful death, negligence, and medical malpractice claims.

The District Court granted defendants’ motions to dismiss for failure to state a claim. Adoptive brother and personal representative appealed.

The Supreme Court held that:

Deceased patient’s adoptive brother, who was also patient’s biological father, qualified as a beneficiary under the intestacy laws and had standing to bring a wrongful death action against state hospital and others; adoptive brother was an heir with a tangible interest in the outcome of the controversy.

State hospital psychologist’s act in providing written forensic analysis of patient’s mental health qualified as an action within the scope of her duties in the operation of the hospital under the Wyoming Governmental Claims Act; patient had been at the hospital for over eight months at the time of his death, and psychologist and hospital were treating patient throughout his stay in pursuit of restoring his competency.

 




VALIDATION - CALIFORNIA

McGee v. Torrance Unified School District

Court of Appeal, Second District, Division 8, California - May 29, 2020 - Cal.Rptr.3d - 2020 WL 2781608 - 20 Cal. Daily Op. Serv. 5028 - 2020 Daily Journal D.A.R. 5274

Taxpayer brought reverse validation action against school district and construction company, seeking to invalidate lease-leaseback agreements on numerous bases.

Trial court sustained demurrers, and taxpayer appealed. The Court of Appeal, 2015 WL 301918, affirmed in part but reversed as to conflict of interest claim and remanded. Taxpayer, together with taxpayer organization, brought separate reverse validation action against school district and construction company, and after the trial court sustained demurrers, taxpayer appealed. The Court of Appeal affirmed in part but reversed as to conflict of interest claim and remanded. Taxpayer and organization brought third action against school district and construction company for conflict of interest. Cases were consolidated. Following trial on issue of mootness, the Superior Court found claims were rendered moot by completion of construction projects and entered judgment of dismissal. Taxpayer appealed.

The Court of Appeal held that:

Lease-leaseback agreements between school district and construction contractor involved district’s financial obligations and were inextricably bound up in district’s bond financing, and, thus, constituted “contracts” within the meaning of statute declaring that validation statutes applied to an action to determine the validity of a local agency’s contracts; Education Code authorized lease-leaseback agreements without competitive bidding as a method to finance school construction, lease-leaseback agreements at issue were funded through school district’s general obligation bond, and taxpayer who brought actions to invalidate lease-leaseback agreements on grounds including conflict of interest relied on reverse validation procedures and principles.

Taxpayer’s claims that conflict of interest statute prohibited school district from entering into lease-leaseback agreements with construction contractor were, in essence, requests to invalidate agreements, and, thus, were subject to validation statutes; taxpayer sought finding that agreements were ultra vires, illegal, void, and unenforceable due to conflict of interest, any judgment in taxpayer’s favor would necessarily render agreements void from their inception, and given lengthy procedural history of litigation, judgment in taxpayer’s favor would undermine purpose behind validation statutes, namely, prompt validation of school district’s actions to preserve district’s ability to finance itself through public bonds and credit.

Completion of construction projects pursuant to lease-leaseback agreement between school district and construction contractor rendered moot taxpayer’s conflict of interest claims, by which he sought to declare agreements void and obtain disgorgement of funds spent on projects, where agreements were subject to validation statutes, and taxpayer’s requested relief required invalidation of agreements.




ZONING & PLANNING - GEORGIA

City of Douglasville v. Boyd

Court of Appeals of Georgia - June 2, 2020 - S.E.2d - 2020 WL 2846963

Applicant filed petition for writ of certiorari asserting that city council’s decision to deny his development plan application for portable rock crushing plant on property zoned heavy industrial was arbitrary, capricious, an abuse of discretion, and not supported by any evidence.

The Superior Court entered order summarily concluding that city council acted arbitrarily and capriciously. City applied for discretionary appeal, which the Court of Appeals granted.

The Court of Appeals held that applicant’s proposed use of access road located on light industrial property to transport raw materials to portable rock crushing plant located on property zoned heavy industrial did not comply with city zoning ordinance prohibiting accessory uses except in relation to existing principal use on the lot.




LIABILITY - MAINE

Abdisamad v. City of Lewiston

United States Court of Appeals, First Circuit - June 2, 2020 - F.3d - 2020 WL 2847183

Student’s parent brought action against city, its school department, and Maine Department of Agriculture, Conservation, and Forestry (DACF) asserting federal and state civil rights claims and state wrongful death claims based on student’s drowning death while on school field trip to state park.

The United States District Court dismissed complaint, and parent appealed.

The Court of Appeals held that city and school department were not subject to liability under § 1983 for student’s death.

City and its school department were not subject to liability under § 1983 for student’s drowning death while on school field trip to state park, where complaint did not allege that their policies caused student’s death, but rather that student’s death was result of their failure to follow those policies.




EMINENT DOMAIN - NEW JERSEY

Township of Manalapan v. Gentile

Supreme Court of New Jersey - June 2, 2020 - A.3d - 2020 WL 2844223

Township commenced condemnation proceedings. Township moved for judgment at the close of evidence. The Superior Court granted the motion in part, but allowed the question of fair market value to go to jury.

The Superior Court entered judgment on jury’s verdict, awarding landowners $4.5 million, and denied township’s post-trial motions for judgment notwithstanding the verdict and for a new trial. Township appealed. The Superior Court, Appellate Division, affirmed, and township’s petition for certification was granted.

The Supreme Court held that:




BALLOT INITIATIVES - OHIO

Thompson v. Dewine

United States Court of Appeals, Sixth Circuit - May 26, 2020 - 959 F.3d 804

Individuals and organizations that were obtaining signatures in support of initiatives to amend Ohio Constitution and propose municipal ordinances brought action alleging that enforcement of state’s requirements for initiatives while state’s stay-at-home orders during COVID-19 pandemic were in effect violated their First Amendment rights.

Other organizations and individuals intervened. The United States District Court granted in part plaintiffs’ and intervenors’ motion for preliminary injunction, and state filed interlocutory appeal. State filed motion for stay pending appeal.

The Court of Appeals held that:

State was likely to succeed on merits of its appeal of district court’s order preliminarily enjoining it from strictly enforcing requirements that signatures on initiative petitions be written in ink and be witnessed by initiative’s circulator during COVID-19 pandemic, for purposes of determining whether to issue stay pending appeal, even though pandemic made it more difficult to obtain signatures by deadline; state had compelling interest in ensuring that signatures were authentic, state exempted conduct protected by First Amendment from its stay-at-home orders, and state specifically exempted petition and referendum circulators from its stay-at-home restrictions five weeks before deadline for submitting ballot-access petitions.

State would suffer serious and irreparable harm if it was enjoined from conducting its election in accordance with its lawfully enacted ballot-access regulations, for purposes of determining whether state was entitled to stay pending its appeal of district court order preliminarily enjoining it from enforcing regulations during COVID-19 pandemic.




BALLOT INITIATIVES - OKLAHOMA

In re Initiative Petition No. 426, State Question No. 810

Supreme Court of Oklahoma - May 27, 2020 - P.3d - 2020 WL 2753562 - 2020 OK 44

Protesters filed petition to challenge gist statement of initiative petition to create a new article to the Oklahoma Constitution for the purpose of establishing the Citizens’ Independent Redistricting Commission.

The Supreme Court of Oklahoma held that:

Gist of initiative petition seeking to create a new article to the Oklahoma Constitution establishing citizens’ independent redistricting commission, which stated that “a panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools” of potential commission members, was not affirmatively inaccurate, although panel was to be composed of retired judges and justices “who are able and willing to serve on the Panel, selected by random drawing,” as Chief Justice would designate the potential panel members, and random drawing might never come into play.

Information in redistricting commission initiative petition’s gist statement concerning vote for approving a redistricting plan, which stated that there was a “fallback mechanism by which the state Supreme Court, using a report from the Special Master, will select a plan if the Commission cannot reach the required level of consensus within a set timeframe,” was sufficient, despite speculation that there was high likelihood the Supreme Court would be called upon to adopt the redistricting plan based upon “super majority” voting requirements; statement clearly stated that the Supreme Court would select a plan if the Commission could reach the “required level of consensus” within a set timeframe, which informed the potential signatory that a certain “level of consensus” would be required by the Commission to vote on a redistricting plan.

Short mention of redistricting criteria in gist statement for initiative petition seeking to create a new article to the Oklahoma Constitution establishing citizens’ independent redistricting commission was sufficient; gist stated that its purpose was to prevent political gerrymandering, gist provided that, in creating the redistricting plans, certain criteria will be used, including political fairness, and gist put a potential signatory on notice that the commission would seek to maximize political fairness as well as the other criteria




BILLBOARDS - SOUTH DAKOTA

Lamar Advertising of South Dakota, L.L.C. v. City of Rapid City

Supreme Court of South Dakota - June 3, 2020 - N.W.2d - 2020 WL 2959720 - 2020 S.D. 30

Competitor filed declaratory judgment action against city and billboard company, requesting that settlement between them regarding company’s signs be declared invalid. Billboard company filed counterclaim for tortious interference with contractual relations and sought declaration that similarly agreement between competitor and city was invalid.

The Circuit Court denied competitor’s motion for summary judgment on its request for declaratory judgment, denied company’s motion for summary judgment requesting that the court declare competitor’s agreement with city void, and granted competitor’s motion for summary judgment on counterclaim for tortious interference with contractual relations. Competitor appealed, and, by notice of review, company challenged denial of its summary judgment motion.

The Supreme Court held that:




EMINENT DOMAIN - TEXAS

Stratta v. Roe

United States Court of Appeals, Fifth Circuit - May 29, 2020 - F.3d - 2020 WL 2781642

Two property owners brought § 1983 action against multi-county water conservation district, board of directors of water district, board members, and other officials alleging that district allowed city to drain groundwater from property without compensation in violation of the Takings Clause and the Equal Protection Clause, and that board prevented one property owner from speaking at public meeting in violation of his First Amendment rights.

The United States District Court dismissed the action. Property owners appealed.

The Court of Appeals held that:

Multi-county water conservation district in Texas was not “arm of the state” of Texas, and thus, was not entitled to Eleventh Amendment immunity, in § 1983 action brought by property owners; district was political subdivision that stood upon same footing as counties, which were not granted sovereign immunity, state funds were not permitted to be used to indemnify or assume debts of water districts, districts were funded by locally-assessed taxes and fees, Texas law granted water districts broad authority to make and enforce rules governing groundwater usage within each district, district’s legal boundaries were coextensive with the counties, and district had authority to sue and be sued in its own right.

Texas property owner’s Fifth Amendment takings claim, alleging that multi-county water conservation district allowed city to drain groundwater from his property without compensation, was ripe for adjudication, where property owner fully pursued the administrative remedies available to him before filing this action.

District Court abused its discretion in abstaining under Burford, in property owners’ § 1983 action against multi-county water conservation district in Texas and district officials, alleging that district allowed city to drain groundwater from property without compensation in violation of the Takings Clause and the Equal Protection Clause; action involved federal constitutional law, case did not involve unsettled issues of state law, and although regulation of water resources was matter of great state concern in Texas, judgment in federal court would not interfere with coherence of state policy, and there was no special state forum in Texas for judicial review of claims against water districts.

Property owner stated plausible class-of-one equal protection claim against multi-county water conservation district based on district’s alleged conduct in treating city as exempt from district’s well water usage and pumping limits, while rigorously enforcing those limits against property owner, without any rational basis for the differential treatment.

Texas Open Meetings Act (TOMA) notice requirement prohibited member of board of directors for multi-county water conservation district from requesting during board meeting’s public comment period on non-agenda items that board address public’s concerns about particular well usage, and thus, board member’s First Amendment rights were not violated when he was barred as member of public from speaking about well usage.




ZONING & PLANNING - VIRGINIA

Rowland v. Town Council of Warrenton

Supreme Court of Virginia - May 28, 2020 - S.E.2d - 2020 WL 2763785

Town residents brought action challenging town council’s approval of developers’ rezoning request.

The Circuit Court entered order of final judgment in favor of town and developers, and residents appealed.

The Supreme Court held that:




PREEMPTION - WASHINGTON

Anti-Smoking Alliance v. Tacoma-Pierce County Department of Health and Health Board

Court of Appeals of Washington, Division 2 - June 2, 2020 - P.3d - 2020 WL 2847009

Anti-smoking nonprofit, which included vapor product retailers, brought action against county board of health for injunction against enforcement of new ordinances affecting vapor product sellers.

Trial court denied health board’s motion for summary judgment. After hearing, the Superior Court granted permanent injunction but denied nonprofit’s request for attorney fees and costs. Health board appealed.

The Court of Appeals held that:




LEASES - ALABAMA

Kennamer v. City of Guntersville

Supreme Court of Alabama - May 29, 2020 - So.3d - 2020 WL 2781243

City resident who objected to city’s granting of a property lease to a developer brought action against city, mayor, city council, and developer in which he sought a declaratory judgment that the lease was void.

The Circuit Court dismissed action. City resident appealed.

The Supreme Court held that that retail businesses were to be included in the development was not a reason to find that city, by granting the lease, exceeded its authority under State Constitution’s provision allowing a municipality to lease real property for the purpose of any commercial facilities of any kind.

The Supreme Court, when considering appeal from dismissal of city resident’s action for a declaratory judgment that property lease that city granted to condominium developer was void, would not consider resident’s argument that operating a condominium development did not fall within the State Constitution’s provision allowing a municipality to lease real property for the purpose of any industrial, commercial, research, or service facilities of any kind; resident did not present such an argument in the circuit court, and resident did not offer such an argument in his initial appellate brief.

That retail businesses were to be included in development arising from property lease that city granted developer was not a reason to find that city, by granting the lease, exceeded its authority under State Constitution’s provision allowing a municipality to lease real property for the purpose of any commercial facilities of any kind.




ZONING & PLANNING - CONNECTICUT

Lime Rock Park, LLC v. Planning and Zoning Commission of Town of Salisbury

Supreme Court of Connecticut - May 22, 2020 - A.3d - 2020 WL 2642798

Racetrack owners appealed town planning and zoning commission amendments to the town’s zoning regulations restricting motor vehicle racing activities.

The Superior Court granted citizens council’s motion to intervene, and, following court trial, sustained the appeal in part and dismissed it in part. All three parties appealed, and the Supreme Court transferred the appeals.

The Supreme Court held that:




ZONING & PLANNING - MAINE

Friends of Lamoine v. Town of Lamoine

Supreme Judicial Court of Maine - May 19, 2020 - A.3d - 2020 WL 2537351 - 2020 ME 70

Objectors brought action challenging town board of appeals’ reversal of town planning board’s denial of gravel pit operator’s application for permit, under site plan review ordinance, to allow expansion of existing gravel extraction operations.

The Business and Consumer Court vacated board of appeals’ decision, after which the Court amended judgment in part, 2019 WL 2814499, and denied motion for reconsideration, 2019 WL 3761969. Operator appealed.

The Supreme Judicial Court held that:




ZONING & PLANNING - OHIO

State ex rel. Armatas v. Plain Township Board of Zoning Appeals

Supreme Court of Ohio - May 19, 2020 - N.E.3d - 2020 WL 2529048 - 2020 -Ohio- 2973

Landowner petitioned for writ of mandamus to compel township zoning inspector to issue written decision about declining to enforce zoning regulation concerning hedges against neighbor and to compel township board of zoning appeals to hear appeal of written decision, after landowner’s first mandamus action seeking enforcement of zoning regulation was dismissed due to existence of adequate remedy at law.

The Court of Appeals granted summary judgment for inspector and board. Landowner appealed.

The Supreme Court held that:

Judgment in landowner’s first mandamus action seeking to compel township zoning inspector to enforce zoning regulation concerning hedges against neighbor was a final judgment on the merits, as was needed to apply res judicata doctrine to bar landowner’s second mandamus action, even though court did not address issue of whether neighbor’s trees violated zoning regulation, where court dismissed complaint in first action due to existence of an adequate remedy at law in the form of an administrative appeal, making it unnecessary for court to reach landowner’s substantive argument.

Landowner’s second mandamus action involving township zoning inspector’s declining to enforce zoning regulation concerning hedges against neighbor involved the same parties or their privies, as was needed to apply res judicata doctrine to bar second action with respect to inspector, even though first mandamus action was against inspector and township board of trustees and second action was against inspector and township board of zoning appeals, where res judicata was applied only to claim against inspector.

Landowner’s second mandamus action involving township zoning inspector’s declining to enforce zoning regulation concerning hedges against neighbor raised claims that were or could have been litigated in first mandamus action, as was needed to apply res judicata doctrine to bar second action, where material facts had not changed, and landowner simply was pursuing a new legal theory in an attempt to resurrect his right to an administrative appeal of inspector’s decision.

Landowner’s second mandamus action involving township zoning inspector’s declining to enforce zoning regulation concerning hedges against neighbor arose out of same transaction or occurrence that was subject of first mandamus action, as was needed to apply res judicata doctrine to bar second action, where first action failed because another remedy, in the form of an administrative appeal, was available for landowner to challenge inspector’s decision, township board of zoning appeals dismissed, as untimely, an administrative appeal that landowner eventually filed, and landowner sought, in second mandamus action, an order that he believed would facilitate a timely appeal.




ANNEXATION - OREGON

City of Corvallis v. State

Court of Appeals of Oregon - May 13, 2020 - P.3d - 304 Or.App. 171 - 2020 WL 2478669

City filed declaratory judgment action against state, Governor, and other state officials, seeking to have statute, requiring cities to annex territory within their urban growth boundary without submitting the proposal to the electors of the city, declared unconstitutional on its face or as applied.

Another city later intervened as plaintiff. The Circuit Court granted the state defendants’ motion for summary judgment and motion to strike certain declarations from the summary judgment record, and denied cities’ cross-motions for summary judgment. Cities appealed.

The Court of Appeals held that:




PROMESA - PUERTO RICO

Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC

Supreme Court of the United States - June 1, 2020 - S.Ct. - 2020 WL 2814298 - 20 Cal. Daily Op. Serv. 4745

Financial Oversight and Management Board for Puerto Rico filed a petition under Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in debt adjustment proceedings for the Commonwealth of Puerto Rico.

Creditors filed motion to dismiss, asserting that Board members were not appointed in accordance with Appointments Clause.

The United States District Court for the District of Puerto Rico denied the motion. Creditors appealed. The United States Court of Appeals affirmed in part and reversed in part. Certiorari petitions filed by the Board, the United States, and creditors were granted.

The Supreme Court held that:

When Congress creates local offices using its unique constitutional power to legislate for the District of Columbia or the Territories, the officers exercise the power of the local government, not the federal government.

While the Appointments Clause restricts the appointment of Officers of the United States with duties in or related to the District of Columbia or the Territories, it does not restrict the appointment of local officers that Congress vests with primarily local duties.

Board members of Financial Oversight and Management Board for Puerto Rico, who were appointed pursuant to Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), which provided that the President could appoint Board’s seven members without the advice and consent of the Senate, were not “Officers of the United States,” within meaning of Appointments Clause; Board’s statutory responsibilities consisted of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies.




POLITICAL SUBDIVISIONS - TEXAS

Daniel v. University of Texas Southwestern Medical Center

United States Court of Appeals, Fifth Circuit - June 2, 2020 - F.3d - 2020 WL 2843511

Nurse-employee brought action against employer, University of Texas Southwestern Medical Center (UTSMC), alleging claims for retaliation and disability discrimination under the Americans with Disabilities Act (ADA).

The United States District Court for the Northern District of Texas dismissed. Nurse appealed.

The Court of Appeals held that UTSMC was “arm of the state” of Texas entitled to Eleventh Amendment immunity.

University of Texas Southwestern Medical Center (UTSMC) was “arm of the state” of Texas entitled to Eleventh Amendment immunity; public university systems were designated by Texas statute as state agencies, UTSMC received state funding, and although it also received private funds, there was no showing that judgment against UTSMC would not be paid by state-allocated funds, Texas mandated that UTSMC follow statutory accounting and financial reporting requirements, UTSMC had statewide presence, and UTSMC did not exclusively manage the use of its property.




EMINENT DOMAIN - VIRGINIA

Hooked Group, LLC v. City of Chesapeake

Supreme Court of Virginia - May 28, 2020 - S.E.2d - 2020 WL 2766125

Commercial landowner brought action declaratory judgment against city, alleging that city’s closure of one of two roads by which property was accessible constituted a taking, entitling it to compensation.

The Chesapeake Circuit Court sustained city’s demurrer and dismissed landowner’s claim. Landowner appealed.

The Supreme Court held that:




PUBLIC RECORDS - WASHINGTON

Denney v. City of Richland

Supreme Court of Washington - May 7, 2020 - 462 P.3d 842

Firefighter brought action against city, alleging violation of Public Records Act based on alleged withholding of investigative complaints that firefighter made about on-the-job harassment and discrimination.

The Superior Court granted summary judgment to city. Firefighter appealed. The Court of Appeals dismissed appeal as untimely. Firefighter sought discretionary review, which was granted.

The Supreme Court held that:

Firefighter’s misinterpretation of appellate procedure rules to determine that trial court’s summary judgment order was not a final decision, and thus that it did not trigger 30-day appeal period, due to fact that order did not resolve issue of attorney’s fees, was excusable error justifying treatment of firefighter’s untimely appeal as timely, in firefighter’s action against city alleging violation of Public Records Act; confusion had been introduced into rules by civil rule directing the attorney for prevailing party to “prepare and present a proposed form of order or judgment not later than 15 days after the entry of the verdict or decision.”

 




LIABILITY - WISCONSIN

J.K.J. v. Polk County

United States Court of Appeals, Seventh Circuit - May 15, 2020 - F.3d - 2020 WL 2563256

Former inmates filed § 1983 actions against county and jail corrections officer alleging that officer had sexually assaulted them during their incarcerations.

After actions were consolidated, jury returned verdict and awarded damages in inmates’ favor. The United States District Court denied defendants’ motions for new trials and county’s motion for judgment as matter of law.

Defendants appealed. The Court of Appeals affirmed in part, reversed in part, and remanded.

The Court of Appeals, on rehearing en banc, held that:

Evidence was sufficient to support determination that county jail corrections officer acted with deliberate indifference to jail inmates’ safety, in violation of their Eighth Amendment rights by sexually assaulting them; sexual assaults imposed serious risk to inmates’ health and safety, officer admitted that he knew he was putting inmates at risk and that his conduct violated jail policy and was criminal, and inmates testified that they did not consent to the sexual contact.

Evidence was sufficient to prove that county acted with deliberate indifference in failing to prevent and was moving force behind male guard’s repeated sexual assaults against two female county jail inmates, supporting county’s § 1983 liability; evidence showed that county had barebones sexual abuse policy and provided little training to guards on topic, inmates testified that they were dependent on male guards for safety and other needs, expert confirmed that such power dynamic created serious risk of abuse for inmates, jail captain admitted he knew of male guards’ sexually inappropriate banter, and even after learning of instances of sexual harassment and touching by one guard, county did not improve policy, institute additional training, or inquire of inmates about abuse.




EMINENT DOMAIN - ALASKA

Alaska Laser Wash, Inc. v. Department of Transportation & Public Facilities

Supreme Court of Alaska - May 8, 2020 - P.3d - 2020 WL 2299931

Owner of car wash brought inverse condemnation action against the State, claiming business damages resulting from State’s acquisition of car wash site as part of highway improvement project.

Following jury trial, the Superior Court denied State’s motion for directed verdict, entered jury verdict in favor of owner, and awarded attorney’s fees and costs to owner. State appealed, and the Supreme Court reversed, vacated, and remanded. On remand, the Superior Court awarded attorney’s fees to the State as the prevailing party pursuant to pretrial offer of judgment, and car wash owner appealed.

The Supreme Court held that State was entitled to award of attorney’s fees based on pretrial offer of judgment.




MUNICIPAL ORDINANCE - COLORADO

Aptive Environmental, LLC v. Town of Castle Rock, Colorado

United States Court of Appeals, Tenth Circuit - May 15, 2020 - F.3d - 2020 WL 2503912

Seller of pest-control services through door-to-door solicitation filed action alleging that town’s ordinance imposing 7:00 p.m. curfew on commercial door-to-door solicitation violated its First Amendment rights and sought injunction against the curfew’s enforcement.

Following a bench trial, the United States District Court permanently enjoined town from enforcing the curfew. Seller appealed.

The Court of Appeals held that:




ANNEXATION - GEORGIA

City of Norcross v. Gwinnett County

Court of Appeals of Georgia - May 11, 2020 - S.E.2d - 2020 WL 2313685

Commercial property owner brought action against City and County, and asserted claims for inverse condemnation and nuisance and sought damages caused by damaged drainage system, declaratory and mandamus relief, and attorney fees and expenses, and County sought a declaration that city was responsible for repairing the drainage system.

The trial court granted summary judgment to county and denied summary judgment to city. City appealed.

The Court of Appeals held that county, rather than city, was responsible for maintaining drainage system following annexation by city.

County, rather than city, was responsible for maintaining drainage system following annexation by city; county was expressly granted easements over private property to the purposes of using, maintaining, and operating the drainage system, the conveyance instrument explicitly stated the county would maintain the system, and the easements were not abandoned, terminated, or legally transferred when city annexed business park on which the drainage system was located.




PROCESS - MARYLAND

Mayor of Baltimore v. Prime Realty Associates, LLC

Court of Appeals of Maryland - May 12, 2020 - A.3d - 2020 WL 2460110

City brought a receivership action against limited liability company (LLC) regarding property it owned that was unfit for human habitation, and LLC did not participate until after the receiver sold the property and the sale was ratified.

The District Court denied LLC’s motion to vacate the judgment, ratified the final accounting, and discharged the receiver. LLC appealed. The Circuit Court vacated the sale. City’s petition for certiorari was granted.

The Court of Appeals held that:

Limited liability company’s (LLC) due process rights were not violated by city serving LLC by serving State Department of Assessments and Taxation (SDAT), pursuant to substituted service rule; city attempted to serve LLC’s resident agent at address on file with SDAT two times prior to initiating substituted service, LLC’s failure to update its resident agent’s address did not invalidate city’s attempts of service or city’s use of substituted service, and city’s knowledge of post office box address, to which agent attempted to change his address, did not correlate to city having actual knowledge that agent’s address on file was a “bad address.”




COSTS - MISSOURI

Wilson v. City of Kansas City

Supreme Court of Missouri, en banc - May 12, 2020 - S.W.3d - 2020 WL 2392483

Former city employee brought action against city, alleging claims for disability discrimination and retaliation under the Missouri Human Rights Act (MHRA).

The Circuit Court entered judgment for former employee, and city appealed.

On transfer from the Court of Appeals, the Supreme Court held that:




EMINENT DOMAIN - NEW MEXICO

Taylor v. United States

United States Court of Appeals, Federal Circuit - May 15, 2020 - F.3d - 2020 WL 2503275

Owners of land near Air Force base filed suit against United States, claiming that Air Force effected regulatory taking of owners’ property interest in their contract giving wind energy company exclusive option for easement for wind energy development when Air Force personnel allegedly caused company to terminate contract by suggesting that Federal Aviation Administration (FAA) would not issue “No Hazard” designation for airspace above owners’ land, and that Air Force’s flyovers of their land effected physical taking of their property interest in land and associated air space.

The Court of Federal Claims granted government’s motion to dismiss for lack of subject matter jurisdiction and for failure to state claim. Landowners appealed.

The Court of Appeals held that:

Penn Central factor concerning character of government action weighed strongly against finding that regulatory taking was effected by Air Force causing wind energy company to terminate contract with owners of land near Air Force base due to Air Force suggesting to company that Federal Aviation Administration (FAA) would not issue “No Hazard” designation for airspace above owners’ land; Air Force’s suggestion to company did not have legal effect, did not impose direct legal obligation on any party, and was not form of coercive government action, but rather, was at most form of persuasion, convincing company of something assertedly relevant to its prospects for having air clearance for contemplated wind towers.

Air Force’s flyovers of owner’s land near Air Force base did not effect physical taking of their property interest in land and associated air space; although planes flew directly over owners’ land, balance of remaining factors weighed against finding physical taking, including that owners only alleged that military aircraft regularly flew training routes at altitudes below 500 feet above ground level over their property, without alleging how often flights occurred, and owners failed to allege how flights directly, immediately, and substantially interfered with their quiet enjoyment and use of their land.

Landowners’ regulatory taking claim arising out of Air Force allegedly causing wind energy company to terminate contract with owners whose land was near Air Force base, by Air Force personnel suggesting that Federal Aviation Administration (FAA) would not issue “No Hazard” designation for airspace above owners’ land, was within Tucker Act jurisdiction of Court of Federal Claims, although Air Force’s action also constituted tortious interference with contract, since landowners chose to challenge Air Force’s action as taking of their property interest in contract, and Air Force’s tortious conduct did not remove taking claim from Tucker Act jurisdiction.

Court of Federal Claims did not abuse its discretion in dismissing landowners’ complaint, upon determining they failed to state physical takings claim based on Air Force’s flyovers of their land near Air Force base, rather than granting owners leave to amend their complaint, since owners did not request leave to amend, not on their own, not with government’s permission, and not with court’s permission, even after dismissal.

 

 




PUBLIC RECORDS - OHIO

State ex rel. Ullmann v. Klein

Supreme Court of Ohio - May 19, 2020 - N.E.3d - 2020 WL 2529050 - 2020 -Ohio- 2974

Petitioner sought a writ of mandamus to compel city attorney to comply with two public records requests. She also sought statutory damages and attorney fees.

The Supreme Court held that:




MUNICIPAL CORPORATIONS - MARYLAND

Mayor and City Council of Havre De Grace v. K. Hovnanian Homes of Maryland, LLC

Court of Special Appeals of Maryland - May 1, 2020 - A.3d - 2020 WL 2096150

Construction company that had performed infrastructure improvements involving water, sewer lines, and roads to one of three adjacent parcels, and who had allegedly entered into agreement with city to recoup costs for doing so from owners of other two parcels, file suit against city to compel execution and recordation of the agreement.

The Circuit Court granted construction company summary judgment. City appealed.

The Court of Special Appeals held that city council had no independent authority to enter into contract on behalf of the municipal corporation.

Under charter, city’s power to enter into contracts was an executive, rather than legislative, power, thus contract between construction company and city council for recoupment of company’s costs for infrastructure improvements to parcel involving water, sewer lines, and road was not authorized absent approval from mayor; city council had no independent authority to enter into such a contract on behalf of the municipal corporation.




EMINENT DOMAIN - NEW YORK

River Street Realty Corp. v. City of New Rochelle

Supreme Court, Appellate Division, Second Department, New York - March 11, 2020 - 181 A.D.3d 676 - 121 N.Y.S.3d 107 - 2020 N.Y. Slip Op. 01619

Property owner brought action challenging city’s decision authorizing the taking of the property by eminent domain in order to relocate a firehouse, and finding that no environmental impact statement was required concerning that action.

The Supreme Court held that:

City provided proper notice to public of hearing on its proposed taking of owner’s property by eminent domain in order to relocate a firehouse, where, following hearing, city made its determination and findings within 90 days of hearing’s conclusion, as required by statute.

Failure of city’s notice to property owner, following hearing on city’s proposed taking of property by eminent domain in order to relocate a firehouse, to strictly comply with Eminent Domain Procedure Law article governing determination of need and location of a public project prior to acquisition was harmless error, where property owner had been advised of its judicial remedies in a prior notice, and commenced proceeding seeking judicial review of city’s determination in a timely manner.

City’s taking of property by eminent domain was valid; taking served public purpose of relocating firehouse, city had broad discretion to decide what land was necessary to fulfill its stated purpose, there was no evidence that taking was excessive, fact that a private developer would receive an incidental benefit as a result of taking did not invalidate it, and property owner’s unsubstantiated allegations fell far short of clear showing necessary to establish that city acted in bad faith.

Environmental impact statement was not necessary concerning city’s taking of property by eminent domain in order to relocate firehouse, and therefore city did not fail to comply with State Environmental Quality Review Act (SEQRA) when it issued negative declaration obviating need for such a statement; city filled required environmental assessment form prepared in connection with proposed condemnation, conducted requisite examination of relevant areas of environmental concern, and identified no major environmental impacts, and property owner failed to assert any significant potential for environmental harm that might result from project.




IMMUNITY - NEW YORK

Colon v. Martin

Court of Appeals of New York - May 7, 2020 - N.E.3d - 2020 WL 2200410 - 2020 N.Y. Slip Op. 02681

Leading motorist and passenger brought personal injury action against following motorist, city agency, and city, seeking to recover for injuries sustained when their vehicle was allegedly struck in the rear by following motorist’s vehicle, which was owned by city and agency.

Plaintiffs appealed. The Supreme Court, Richmond County, granted defendants’ cross motion for summary judgment dismissing the complaint for failing to comply with hearing provision under General Municipal Law. Plaintiffs appealed. The Supreme Court, Appellate Division, affirmed. Plaintiffs appealed.

The Court of Appeals held that:




EMINENT DOMAIN - NORTH CAROLINA

Chappell v. North Carolina Department of Transportation

Supreme Court of North Carolina - May 1, 2020 - S.E.2d - 2020 WL 2108249

Landowners brought inverse condemnation action against North Carolina Department of Transportation (NCDOT) after portions of property were designated as within a roadway corridor pursuant to Roadway Corridor Official Map Act.

After jury trial, the Superior Court entered judgment in favor of landowners and awarded damages.

After grant of NCDOT’s petition for discretionary review prior to determination by Court of Appeals, the Supreme Court held that:

Trial court acted within its discretion in declining to allow North Carolina Department of Transportation (NCDOT) to pursue exercise of statutory quick-take rights, in landowners’ inverse condemnation action against NCDOT after portion of property was designated as within roadway corridor under Roadway Corridor Official Map Act; trial court did not deny NCDOT right to assert permissive counterclaim under any and all circumstances but rather only precluded turning action into direct condemnation action, action had been pending for over three years, and trial was imminent.




MUNICIPAL ORDINANCE - TEXAS

City of Fort Worth v. Rylie

Supreme Court of Texas - May 8, 2020 - S.W.3d - 2020 WL 2311941 - 63 Tex. Sup. Ct. J. 1036

Operators of pubs with electronic gaming machines known as “eight-liners” brought action seeking to have city ordinances regulating gaming machines declared invalid.

City counterclaimed, seeking to have “fuzzy animal exception” to state prohibition against gambling declared unconstitutional.

The District Court, on parties’ cross-motions for summary judgment, declared that only conflicting portions of ordinances were preempted by state statute regulating skill or pleasure coin-operated machines, and that fuzzy-animal exclusion was constitutional. Parties cross-appealed. The Fort Worth Court of Appeals affirmed in part and reversed in part. Parties filed petitions for review.

The Supreme Court held that remand was warranted for Court of Appeals to decide in first instance whether “eight-liners” were unconstitutional or illegal.

Question of whether pub operators’ electronic gaming machines known as “eight-liners” were unconstitutional or illegal presented relevant and justiciable issue of first impression that Court of Appeals failed to address, on operators’ appeal from trial court’s determination that only conflicting portions of city ordinances regulating amusement redemption machines and associated game rooms within city were preempted by state statute regulating skill or pleasure coin-operated machines, and, thus, remand was warranted for Court of Appeals to decide issue in first instance after full briefing and argument by parties; statute only applied to constitutional and legal gaming machines, and it could only preempt ordinances if “eight-liners” were unconstitutional and illegal.




LIENS - WASHINGTON

City of Seattle v. Long

Court of Appeals of Washington, Division 1 - May 4, 2020 - P.3d - 2020 WL 2112353

Truck owner, whose truck had served as his home, appealed from Municipal Court order that required him to pay impoundment charges and administrative fees and to set up a payment plan that required him to pay $50 per month under threat of a forced sale.

The Superior Court affirmed in part and reversed part. City petitioned for discretionary review, and truck owner cross-petitioned.

The Court of Appeals held that:




PUBLIC PENSIONS - MARYLAND

Couret-Rios v. Fire & Police Employees’ Retirement System of City of Baltimore

Court of Appeals of Maryland - May 1, 2020 - A.3d - 2020 WL 2092602

City sought review of hearing examiner’s decision awarding police officer line-of-duty (LOD) disability retirement benefits after officer suffered concussion, or traumatic brain injury, while he was on duty with resulting memory loss and attention deficits.

The Circuit Court affirmed. City appealed. The Court of Special Appeals reversed. Officer petitioned for writ of certiorari, which was granted.

The Court of Appeals held that:

Although a “mild traumatic brain injury,” or concussion, does not typically result in any permanent physical incapacities, there are scenarios in which a mild traumatic brain injury leads to the physical incapacity that is needed to qualify for line-of-duty (LOD) disability retirement benefits under city’s fire and police employees’ retirement system.

Evidence supported hearing examiner’s finding that city police officer’s attention and memory deficits, as a result of his concussion, or mild traumatic brain injury, incurred while on duty, were permanent physical incapacities entitling officer to line-of-duty (LOD) disability retirement benefits; hearing examiner relied on neurological evaluation performed by a licensed psychologist, and multiple doctors noted that officer suffered more severe symptoms and suffered longer than a typical mild traumatic brain injury patient would suffer.




EMINENT DOMAIN - MISSISSIPPI

Wiggins v. City of Clinton Mississippi

Supreme Court of Mississippi - May 7, 2020 - So.3d - 2020 WL 2213888

City brought action against landowner for approval of exercise of eminent domain.

The County Court approved the exercise. Landowner appealed.

The Supreme Court held that:

There was no evidence that city’s determination of public necessity, as would support exercise of eminent domain to take landowner’s property which formed part of urban-renewal area, was result of fraud or abuse of discretion.

Evidence was sufficient to support finding of a public use, as would support city’s exercise of eminent domain to take landowner’s property, where city had designated area an urban-renewal area pursuant to urban-renewal plan, and parcel at issue was included because of its historic significance.




LIENS - NEW JERSEY

MasTec Renewables Construction Company, Inc. v. SunLight General Mercer Solar, LLC

Superior Court of New Jersey, Appellate Division - February 6, 2020 - A.3d - 2020 WL 579008

Subcontractor brought action against county improvement authority for payment owed by general contractor under a purported mechanics’ lien against the project fund.

The Superior Court granted authority’s motion to dismiss for failure to state a claim. Subcontractor appealed.

The Superior Court held that subcontractor lacked the right to file mechanics’ lien.

The extent of lien protection under the Municipal Mechanics’ Lien Law (MMLL) is limited to the amount the public agency owes to the prime contractor at the time the notice of lien claim is filed or thereafter becoming due; the former cannot be liable for more than the total amount of the prime contract, provided it pays the prime contractor in accordance with the terms thereof and withholds a sum sufficient to cover lien claims filed, and satisfaction of the claim cannot be had out of the public property which is the subject of the project.

Subcontractor who performed work on solar generating facility for county improvement authority lacked a right to file municipal mechanics’ lien against the project fund created from authority’s bond issuance, and therefore authority was entitled to dismissal of subcontractor’s action for lien foreclosure pursuant to the Municipal Mechanics’ Lien Law (MMLL); County Improvement Authorities Law (CIAL) specifically exempted authority from terms of the MMLL, and the Legislature could have made an exception for the type of contract at issue had it so intended, as it did with contracts subject to the Local Public Contracts Law (LPCL).




ZONING & PLANNING - NEW JERSEY

Shipyard Associates, LP v. City of Hoboken

Supreme Court of New Jersey - May 5, 2020 - A.3d - 2020 WL 2120903

As part of long-running dispute regarding proposed riverfront development, developer, which sought to replace planned tennis facilities with two high-rise residential buildings on pier, brought action to challenge application of two new ordinances to project.

The Superior Court granted developer’s motion for summary judgment. City appealed, and the Superior Court, Appellate Division, affirmed. City appealed.

The Supreme Court held that:




EMINENT DOMAIN - OKLAHOMA

Natural Gas Pipeline Company of America LLC v. Foster OK Resources LP

Supreme Court of Oklahoma - May 5, 2020 - P.3d - 2020 WL 2124418 - 2020 OK 29

Operator of interstate natural gas pipelines filed condemnation action seeking additional easements over landowner’s property to have consistent access to operate and maintain pipelines and to clear title issues involving pipelines.

The District Court overruled landowner’s exceptions to commissioners’ report as to just compensation. Landowner appealed.

The Supreme Court held that:

Easement agreements between landowner and operator of interstate natural gas pipelines did not prevent operator from seeking additional easements, via operator’s right of eminent domain under Natural Gas Act, to have consistent access to operate and maintain pipelines and to clear title issues involving pipelines, where easements that operator requested were outside of scope of existing easement agreements, even if parties contemplated similar rights in those agreements.

Interstate natural gas pipeline operator’s taking of permanent easements to clear title issues as to pipeline easements met the legal standard of necessity for public use under Natural Gas Act, where original easement agreements did not describe or include portion of lands owned by landowner under a river and did not mention above-ground structural support and erosion control system on an exposed segment of a pipeline, and the parties’ letter agreement executed many years earlier was not recorded in county land records.

Interstate natural gas pipeline operator’s taking of temporary easement for work performed to install additional support, recoat, and ensure the integrity of a pipeline met the legal standard of necessity for public use under Natural Gas Act, and was not fraudulent, in bad faith, or an abuse of discretion.

Interstate natural gas pipeline operator’s taking of permanent access road easement over landowner’s existing private road met the legal standard of necessity for public use under Natural Gas Act and did not amount to fraud, bad faith, or an abuse of discretion merely because another means of access to pipelines was available to operator, where continuous erosion of property required operator to have better access over property to maintain pipelines, operator was required to use private road to haul equipment to pipeline, and operator planned to use private road two to four times a year and also was responsible for maintaining road to restore any damage caused by its use of road.

Issue of necessity of surveying condemnee’s property to compute just compensation for natural gas pipeline operator’s taking of permanent and temporary easements pursuant to Natural Gas Act was premature and could not be determined upon Supreme Court’s affirmance of order denying condemnee’s exceptions to report of commissioners, where condemnee requested jury trial on issue of just compensation, jury trial regarding just compensation had not occurred, and record was devoid of any evidence that commissioners incorrectly calculated damages due to a lack of survey.




IMMUNITY - OKLAHOMA

Farley v. City of Claremore

Supreme Court of Oklahoma - May 5, 2020 - P.3d - 2020 WL 2125444 - 2020 OK 30

Following workers’ compensation award, surviving spouse and family of deceased city fireman who died while responding to an emergency request for assistance during a flash flood brought wrongful death action against city, seeking damages and injunctive relief.

The District Court granted city’s motion to dismiss. Spouse appealed, and the Supreme Court retained the appeal.

The Supreme Court held that:




CONTRACTS - WASHINGTON

Conway Construction Company v. City of Puyallup

Court of Appeals of Washington, Division 1 - May 4, 2020 - P.3d - 2020 WL 2112362

Construction company, which was hired to do road improvements, sued city, asking the court to declare termination for default improper and asserted breach of contract and unjust enrichment claims.

After bench trial, the Superior Court found that city breached the contract when it terminated company and awarded company damages, attorney fees, and costs. City appealed.

The Court of Appeals held that:




MUNICIPAL ORDINANCE - ALABAMA

Woodgett v. City of Midfield

Supreme Court of Alabama - May 1, 2020 - So.3d - 2020 WL 2097547

Motorists who had paid fines under city’s ordinance providing for the automated photographic enforcement of red traffic lights within the corporate limits brought declaratory-judgment action challenging legality of ordinance.

The Circuit Court dismissed action. Motorists appealed.

The Supreme Court held that motorists’ failure to challenge ordinance’s legality when given notices of violations meant that no justiciable controversy existed.

No justiciable controversy existed in declaratory-judgment action by motorists challenging legality of city’s ordinance providing for the automated photographic enforcement of red traffic lights within the corporate limits, and thus the trial court lacked subject-matter jurisdiction; motorists had all paid fines under the ordinance rather than making a challenge to ordinance’s legality when they received their notices of violations, legislature and city had specifically vested the municipal court with original jurisdiction to adjudicate contested notices of violations under the ordinance and the local act authorizing the ordinance.




TRESPASS - DISTRICT OF COLUMBIA

Wicks v. United States

District of Columbia Court of Appeals - April 30, 2020 - A.3d - 2020 WL 2071978

Defendant, a “ticket scalper” banned from entering onto property of professional baseball team, was convicted of unlawful entry by the Superior Court and he appealed.

The Court of Appeals held that evidence was insufficient to show either that the sidewalk on which ticket scalper was standing immediately in front of ticket window was stadium property or that ticket scalper knew or should have known that he had entered onto stadium property.




EMPLOYEE BENEFITS - MASSACHUSETTS

Boss v. Town of Leverett

Supreme Judicial Court of Massachusetts, Franklin. - April 23, 2020 - 142 N.E.3d 1113

Retired town employee brought action for declaration that town was obligated to pay fifty percent of the full premium cost for health insurance for retired town employees and their dependent spouses.

The Superior Court granted summary judgment to employee. Town appealed.

After sua sponte transfer of case, the Supreme Judicial Court held that:




PUBLIC UTILITIES - MINNESOTA

Matter of Otter Tail Power Company

Supreme Court of Minnesota - April 22, 2020 - N.W.2d - 2020 WL 1933235

On certiorari appeal from a rate-case order, electric utility challenged decision of Minnesota Public Utilities Commission (MPUC) to include costs and revenues for two of utility’s multi-value transmission-grid projects when setting the retail electric rates charged to utility’s Minnesota customers.

The Court of Appeals reversed. MPUC petitioned for review, which was granted.

The Supreme Court held that specific and later-adopted statute expressly leaving modification of transmission-cost recovery rider to discretion of electric utility controlled over general statute granting MPUC power to receive and hold hearings on a petition, and thus MPUC lacked authority to require utility to include certain costs and revenues in existing rider through a requirement that utility amend petition in rate case to include those costs.




TAX - NEW YORK

Laertes Solar, LLC v. Assessor of Town of Harford

Supreme Court, Appellate Division, Third Department, New York - April 16, 2020 - N.Y.S.3d - 2020 WL 1886279 - 2020 N.Y. Slip Op. 02302

Town assessor appealed from decision of the Supreme Court, Cortland County, in favor of taxpayer in combined Article 78 and declaratory judgment proceeding in which taxpayer sought a declaration that solar energy system was exempt from property taxes.

The Supreme Court held that:




REFERENDA - OREGON

Hurst v. Rosenblum

Supreme Court of Oregon, En Banc - April 9, 2020 - P.3d - 366 Or. 260 - 2020 WL 1808370

Electors petitioned to challenge Attorney General’s certified ballot title for initiative petition addressing greenhouse gas emissions.

The Supreme Court held that:

Ballot title caption for initiative petition that stated, in part, “Greenhouse gas emissions from industry, fossil fuels must be eliminated” was likely to mislead some voters, and thus caption required modification for failure to substantially comply with statutory requirements; even though ballot title summary explained requirement in full, placement of comma between “industry” and “fossil fuels” could have led some voters to interpret caption as requiring elimination of fossil fuels, rather than requiring elimination of greenhouse gas emissions from fossil fuels.




ZONING & PLANNING - RHODE ISLAND

Town of Exeter by and through Marusak v. State

Supreme Court of Rhode Island - April 29, 2020 - A.3d - 2020 WL 2050779

Towns filed separate actions for declaratory and injunctive relief regarding proposed Rhode Island Department of Environmental Management (DEM) construction project which included offices, laboratory space, and visitor center, alleging that project was required to comply with town zoning ordinances.

After consolidation, the Superior Court granted state’s motion for summary judgment, and towns appealed.

The Supreme Court held that:




PENSIONS - TEXAS

Degan v. Board of Trustees of Dallas Police and Fire Pension System

United States Court of Appeals, Fifth Circuit - April 27, 2020 - F.3d - 2020 WL 1982244

Beneficiaries of city pension fund for police and firefighters brought action against pension system’s board of trustees, alleging that changes to pension fund violated United States and Texas Constitutions.

The United States District Court for the Northern District of Texas dismissed the action. Beneficiaries appealed.

The Court of Appeals held that:

Beneficiaries of city pension fund for police and firefighters lacked protected property interest, under Texas law, in method of withdrawal from the fund, and thus, removal by board of trustees for pension fund of single lump-sum distribution option did not support per se Fifth Amendment takings claim by beneficiaries.

Restriction on city pension fund for police and firefighters which removed single lump-sum distribution option could not support beneficiaries’ Fifth Amendment regulatory takings claim, where beneficiaries would continue to receive benefits from the fund in the form of annuity payments, and purpose of removal of lump-sum option was to protect pension fund.




STATE MANDATES - CALIFORNIA

Coast Community College District v. Commission on State Mandates

Court of Appeal, Third District, California - April 3, 2020 - Cal.Rptr.3d - 2020 WL 1649919 - 20 Cal. Daily Op. Serv. 3073 - 2020 Daily Journal D.A.R. 3131

Community College Districts filed petition for writ of mandate challenging decision of Commission on State Mandates on claims for subvention for costs associated with 27 sections of Education Code and attendant regulations imposing “minimum conditions.”

The Superior Court denied petition and entered judgment. Districts appealed.

The Court of Appeal held that:




IMMUNITY - GEORGIA

Gwinnett County, Ga v. Ashby

Court of Appeals of Georgia - April 15, 2020 - S.E.2d - 2020 WL 1873232

Spectator, who was attending her son’s football practice at county park when she allegedly sustained severe personal injuries when her foot slipped into an uncovered drain, brought personal injury action against county for the negligent acts of its agents or employees.

The trial court denied county’s motion to dismiss on grounds of sovereign immunity, and county appealed.

The Court of Appeals held that:




IMMUNITY - IDAHO

Noel v. City of Rigby

Supreme Court of Idaho, Pocatello, September 2019 Term - April 16, 2020 - P.3d - 2020 WL 1889103

Child and her parents brought action against city after child was injured while playing on playground equipment in city park.

After jury trial resulted in verdict in favor of city, the District Court granted new trial. City appealed.

The Supreme Court held that:




EMINENT DOMAIN - MARYLAND

Maryland Reclamation Associates, Inc. v. Harford County

Court of Appeals of Maryland - April 24, 2020 - A.3d - 2020 WL 1969946

Following unsuccessful litigation regarding landowner’s efforts to construct and operate a rubble landfill, landowner filed a separate inverse condemnation case alleging that county’s actions constituted an unconstitutional taking of its property.

The Circuit Court entered judgment on general jury verdict for landowner. County appealed, and the Court of Special Appeals reversed and remanded. Landowner petitioned for writ of certiorari and county cross-petitioned for conditional writ, which the Court of Appeals granted.

The Court of Appeals held that landowner’s failure to exhaust administrative remedies by bringing inverse condemnation claim before county board of appeals precluded landowner from prevailing in subsequent stand-alone action.




REFERENDA - OHIO

State ex rel. Ohioans for Secure and Fair Elections v. LaRose

Supreme Court of Ohio - April 14, 2020 - N.E.3d - 2020 WL 1861844 - 2020 -Ohio- 1459

Election organization petitioned for writs of mandamus against Secretary of State, Ballot Board, and Attorney General, after its initiative petition was split into four separate proposals.

The Supreme Court held that:




IMMUNITY - TEXAS

Reyes v. Jefferson County

Supreme Court of Texas - April 17, 2020 - S.W.3d - 2020 WL 1898542 - 63 Tex. Sup. Ct. J. 786

Motorist brought action against county under Texas Tort Claims Act (TTCA) for injuries he allegedly sustained when county police officer collided with motorist’s automobile.

The District Court denied county’s plea to the jurisdiction. County filed interlocutory appeal. The Court of Appeals reversed. Motorist petitioned for review.

The Supreme Court held that county had actual notice of action, and thus motorist was not required to provide notice under TTCA.

County had actual notice of motorist’s personal injury action against county, and thus motorist was not required to provide notice of claim to county to bring action under Texas Tort Claims Act (TTCA), arising out of police officer’s collision with motorist; even if county did not believe it was liable after investigation by its authorized claims administrator, motorist’s communication with administrator, coupled with administrator’s acknowledgment, investigation, and denial of his claim, established county’s subjective awareness that motorist was claiming county was at fault in manner ultimately alleged in lawsuit.




INSURANCE - VIRGINIA

VACORP v. Young

Supreme Court of Virginia - April 9, 2020 - S.E.2d - 2020 WL 1789093

School bus passenger injured in collision brought action against manager of school board’s self-insurance risk pool, seeking a declaratory judgment regarding the scope of coverage for board’s uninsured motorist (UM) and underinsured motorist (UIM) coverage.

The Richmond Circuit Court granted summary judgment to passenger. Manager was awarded an appeal.

The Supreme Court held that board’s UM/UIM coverage was not capped at $50,000.

School board’s uninsured motorist (UM) and underinsured motorist (UIM) coverage was not capped at $50,000, but rather coverage was for $1 million, as specified in contract entered into with manager of self-insurance risk pool; there was no statutory cap on UM/UIM coverage under remedial construction afforded to statutes, board had freedom to contract for more coverage than $50,000 floor, and insurance purchased from risk pool was valid and collectible.




ELECTIONS - ARIZONA

Morrissey v. Garner

Supreme Court of Arizona - April 21, 2020 - P.3d - 2020 WL 1918688

Mayor brought action to enjoin the recall election obtained by political action committee via recall petition.

The Superior Court enjoined election based on insufficient number of signatures on recall petition. Committee appealed.

The Supreme Court held that proper basis for determining requisite signatures for recall petition was to use number of voters in the most recent primary election at which mayor was voted into office.

Proper basis for determining requisite signatures for recall petition to obtain recall election of town mayor was to use number of voters in the most recent nonpartisan primary election at which mayor was voted into office, rather than 25% of number of votes cast in general election 16 years earlier, which was year that town began using primary elections for all mayoral elections, where town had statutory and constitutional authority to use primary elections to elect local officials, and mayor was declared elected on date of general election by majority vote in primary election.




From Houston to New York, America’s Muni Finances Are in Tatters.

In Dayton, Ohio, Mayor Nan Whaley has furloughed a quarter of the city’s workforce and is warning that more cuts may follow. In Baltimore, which has one of the highest murder rates in the nation, Mayor Bernard Young is negotiating layoffs with the police union. And in Houston, Mayor Sylvester Turner is deferring all five police cadet classes.

New York’s governor, Andrew Cuomo, may have only been referring to his state when he declared on national television in March that “we are broke,” but he was, in a broader sense, speaking for the vast bulk of city and county and state governments in America.

Never before have U.S. municipalities been hit so hard or so quickly or in so many different ways as they are right now by the coronavirus pandemic.

Continue reading.

Bloomberg Markets

By Amanda Albright, Danielle Moran, and Fola Akinnibi

May 2, 2020, 6:00 AM PDT




TRESPASS - ALABAMA

Bailey v. City of Leeds

Court of Civil Appeals of Alabama - March 13, 2020 - So.3d - 2020 WL 1223460

Decedents’ relatives brought action against city based on claims that city employees trespassed on decedents’ graves and that employees negligently removed adornments and damaged or destroyed them.

The Circuit Court entered summary judgment for city. Relatives appealed.

The Court of Civil Appeals, held that:




HOUSING FINANCE CORPORATIONS - ALASKA

Anderson v. Housing Finance Corporation

Supreme Court of Alaska - April 17, 2020 - P.3d - 2020 WL 1898227

Mortgagor brought action against Alaska Housing Finance Corporation (AHFC), which held deed of trust and promissory note, alleging due process violations arising out of non-judicial foreclosure.

The Superior Court granted summary judgment of AHFC. Mortgagor appealed.

The Supreme Court held that:




EMINENT DOMAIN - GEORGIA

Torres v. City of Jonesboro

Court of Appeals of Georgia - April 16, 2020 - S.E.2d - 2020 WL 1887109

After the trial court dismissed two condemnation petitions, condemnees moved for attorney fees and costs.

The trial court denied the motion for attorney fees. Condemnees appealed.

The Court of Appeals held that city, the condemnor, waived its objection to the admission of expert’s testimony that the condemnees incurred $51,206.15 in fees and costs during condemnation proceeding.

City, the condemnor, waived its hearsay objection to the admission of expert’s testimony that condemnees incurred $51,206.15 in fees and costs, during condemnees’ proceeding to recover attorney fees and costs after condemnation petitions were dismissed, where city failed to contemporaneously object to the testimony.




PUBLIC CONTRACTS - ILLINOIS

Restore Construction Company, Inc. v. Board of Education of Proviso Township High Schools District 209

Supreme Court of Illinois - April 16, 2020 - N.E.3d - 2020 IL 125133 - 2020 WL 1880809

Contractors brought action against school district’s board of education, seeking recovery under quantum meruit, among other claims, for repair and restoration work performed for fire-damaged high school.

The Circuit Court granted board’s motion to dismiss. Contractors appealed. The Appellate Court reversed. Board’s petition for leave to appeal was allowed.

The Supreme Court held that lack of competitive bidding and absence of formal vote by board did not preclude quantum meruit claims.

Lack of competitive bidding and absence of formal, recorded vote by board of education did not preclude contractors’ quantum meruit claims against school district to recover for emergency repair and restoration work performed, despite contention that contracts were ultra vires; district was operating under fiscal management of a financial oversight panel that was fully apprised of the work performed, school code specifically provided that enumerated powers were not exclusive, and hiring an entity to do repair and restoration work was among types of action boards were authorized to undertake.




EMINENT DOMAIN - MINNESOTA

State by Commissioner of Transportation v. Elbert

Supreme Court of Minnesota - April 22, 2020 - N.W.2d - 2020 WL 1933237

Landowners and Department of Transportation each sought review of court-appointed commissioners’ award of damages, including severance damages attributable to presumed loss of access to property abutting highway during highway construction project, following grant of permanent and temporary easements to Department via condemnation petition.

The District Court granted Department’s motion for partial summary judgment. Landowners appealed. The Court of Appeals affirmed. Landowners sought review, which was granted.

The Supreme Court held that:

A court will not presume that access to a landowner’s property abutting highway is destroyed, entitling the landowner to loss-of-access damages, when Department of Transportation is granted a temporary easement via a condemnation petition for a highway construction project.

Department of Transportation did not take the right of access to property abutting highway when it used condemnation petition to acquire temporary construction easement for highway construction project, and therefore landowners were not entitled to compensation for a taking an a loss-of-access theory, where landowners retained reasonably convenient and suitable access to their abutting property at all times during construction.

Landowners were not entitled to severance damages for construction-related interferences during highway construction project for which Department of Transportation acquired temporary construction easement via condemnation petition, where focus of appraisal pertaining to severance damages used calculations for construction-related interference coming from project as a whole based on a presumed loss of access stemming from general construction on highway, and landowners never lost access to their property.




ZONING & PLANNING - OHIO

Litchfield Township Board of Trustees v. Forever Blueberry Barn, L.L.C.

Supreme Court of Ohio - April 21, 2020 - N.E.3d - 2020 WL 1918145 - 2020 -Ohio- 1508

Township board of trustees filed complaint seeking to enjoin owner of property that was designated as residential from using barn for weddings and other social gatherings.

After initially entering injunction, the Court of Common Pleas rescinded injunction based on viticulture zoning exemption. Township appealed. The Ninth District Court of Appeals reversed and remanded. On remand, following a hearing, the Court of Common Pleas again found that owner’s barn met requirements for zoning exemption. Township appealed. The Court of Appeals affirmed. Township sought review, and the Supreme Court accepted for review one proposition of law.

The Supreme Court held that trial court properly applied primary-use test in determining that primary use of barn was vinting and selling wine, such that zoning exemption applied.

Trial court properly applied primary-use test when it determined that primary use of property owner’s barn, and the events held therein, was to facilitate sale of wine by conditioning the rental of the barn on the purchase of its wine, such that barn, which was located in residential district, was exempt from township’s zoning restrictions, under statute providing that township could not regulate zoning of building located on land on which grapes were cultivated that was “used primarily for vinting and selling wine,” though only a small percentage of barn’s overall space was used for vinting and selling wine; given that winery was in initial stages of production, it was not unreasonable to use barn space for other purposes, and use of space for other purposes did not mean that vinting and selling wine was not barn’s primary purpose.




EMINENT DOMAIN - VERMONT

Carpenter v. United States

United States Court of Federal Claims - April 3, 2020 - Fed.Cl. - 2020 WL 1650878

Owners of property abutting railway corridor filed rails-to-trails case, seeking just compensation for Fifth Amendment taking allegedly effected by Surface Transportation Board’s (STB) issuance of notice of interim trail use (NITU) authorizing conversion of railway corridor into recreational trail under National Trails System Act.

Parties cross-moved for partial summary judgment.

The Court of Federal Claims held that:

Under Vermont law, railroad acquired by quitclaim deed only easement over land used as railroad corridor, not fee simple title, and thus, successor-in-interest to land had property interest necessary to support takings claim based on Surface Transportation Board’s (STB) conversion of corridor into recreational trail under National Trails System Act; deed followed recording of survey and location selection in exercise of railroad’s eminent domain power, deed contained language conveying only what railroad required for its “own proper use, benefit and behoof” which was easement for its railway, and railroad’s corporate charter prohibited it from exercising eminent domain power to acquire fee simple interest.

Surface Transportation Board’s issuance of notice of interim trail use (NITU), authorizing conversion of railroad corridor to recreational trail under National Trails System Act, effected compensable taking of property interest of successor-in-interest to railroad’s easement; NITU severed railroad’s claim to land because recreational use fell outside scope of easement, and burdens of easement ran with land, so all reversionary rights vested with successor-in-interest upon severance.




SPECIAL ASSESSMENTS - WASHINGTON

Kittitas County v. Washington State Department of Transportation

Court of Appeals of Washington, Division 2 - April 21, 2020 - P.3d - 2020 WL 1921926

County brought declaratory judgment action against Department of Transportation, seeking to require Department to pay assessment for noxious weed control efforts in county.

The Superior Court granted summary judgment to Department. County appealed.

The Court of Appeals held that:

Statutory funding mechanism for county’s noxious weed control was a special assessment rather than a rate, and thus it required clear and express authority to be assessed against state-owned land; purpose of charge was to compensate a noxious weed control board for the services provided to specific lands benefiting from that board’s noxious weed control efforts, and charge was designed to be proportional to the benefit received by the assessed land.

Statutes setting out special assessments for funding of county noxious weed control districts do not expressly authorize levy of charges against state-owned lands and thus may not be levied against such lands.




MUNICIPAL GIFTS OF PUBLIC FUNDS - WASHINGTON

Peterson v. State

Supreme Court of Washington - April 17, 2020 - P.3d - 2020 WL 1888727

Taxpayer, who was also the principal owner of a railroad services company, brought action against port district, among others, arising out of its failure to charge two railroads for using a portion of track that such railroads or their predecessors had assisted the United States in building in exchange for the right to use the track for free, which track was located on land that the United States had subsequently sold to the port district, and port district had leased to taxpayer’s company.

Railroads intervened as defendants, and additional taxpayers intervened as plaintiffs. The Superior Court awarded summary judgment to port district. Taxpayers appealed, and the Court of Appeals affirmed. Taxpayers petitioned for review.

The Supreme Court held that port district did not act with donative intent when it failed to charge railroads for their use of track, and thus its actions did not violate state constitutional provision barring municipal gifts of public funds.

Port district did not act with donative intent when it failed to charge two railroads for their use of track that they or their predecessors helped build when the land was owned by the United States in exchange for the right to use the track for free, and thus its actions did not violate state constitutional provision barring municipal gifts of public funds; there was no evidence port district attempted to hide the arrangement, which was also reflected in a recorded indenture, from the state auditor, obligation to honor the railroads’ agreement with the United States was a condition of the sale of the land to the port district, and there was no showing of grossly inadequate consideration to the port district or significant cost to taxpayers.




MUNICIPAL ORDINANCE - COLORADO

Caldara v. City of Boulder

United States Court of Appeals, Tenth Circuit - April 10, 2020 - F.3d - 2020 WL 1814596

Citizens of city and entities with various interests in the sale or possession of weapons within city brought action challenging municipal ordinance that, inter alia, prohibited the sale or possession of assault weapons within city.

The United States District Court abstained and stayed the proceedings pending resolution of pending state-court case. Plaintiffs appealed.

The Court of Appeals held that abstention under Pullman was proper.

Pullman abstention was warranted in action challenging Colorado city ordinance that, inter alia, prohibited sale or possession of assault weapons within city; issues of whether ordinance violated Colorado statute because at least some firearms covered by ordinance could be legally possessed under state or federal law and whether municipal firearms regulations were matters of local or statewide concern had not been conclusively resolved by state courts, there was no impediment to plaintiffs litigating applicability of state statute to ordinance in state courts, and if state courts were to conclude that ordinance was preempted by state statute, such determination would eliminate need for determination of whether ordinance violated federal constitution.




LIABILITY - INDIANA

King v. Hendricks County Commissioners

United States Court of Appeals, Seventh Circuit - March 31, 2020 - F.3d - 2020 WL 1531356

Estate brought action against police officer and county, asserting claims under § 1983, Americans with Disabilities Act (ADA), and the Rehabilitation Act, arising out of death of resident, who suffered from paranoid schizophrenia, at hands of officer who was responding to resident’s call for help when he was suffering a mental health crisis.

The United States District Court granted summary judgment to defendants. Estate appealed.

The Court of Appeals held that:

Officer’s use of deadly force, shooting and killing resident who suffered from paranoid schizophrenia, was reasonable under the Fourth Amendment, thus precluding resident’s estate’s § 1983 claim, where resident pointed a large knife at officers who went to his home to perform a welfare check after he called 911 and requested help, resident disregarded officers’ repeated comments to drop the knife, and then charged at officer.

If resident, who suffered from paranoid schizophrenia, was denied access to medical services, it was because of his violent, threatening behavior, not because he was mentally disabled, and thus no violation of ADA Title II or the Rehabilitation Act occurred when resident died at hands of officers whom he called for help when he was suffering a mental health crisis; officer’s failure to control resident, or disarm him of the knife he was pointing toward officers, was not due to deliberate indifference or inadequate training to deal with disabled individuals, but rather, because resident threatened officer with the knife before officer could subdue him.




MISAPPROPRIATION - INDIANA

Robertson v. State

Supreme Court of Indiana - March 30, 2020 - N.E.3d - 2020 WL 1501683

Office of Attorney General (OAG) two brought claims against county bookkeeper for misappropriation of public funds and sought relief under the Crime Victims Relief Act (CVRA).

The Superior Court denied bookkeeper’s motion to dismiss. Bookkeeper appealed. The Court of Appeal affirmed. Transfer was granted.

The Supreme Court held that:

Statute of limitations for Office of Attorney General (OAG)’s complaint against county bookkeeper to recover misappropriated public funds did not begin until OAG received from State Board of Accounts (SBOA) the final, verified audit report.

Office of Attorney General’s (OAG) cause of action against county bookkeeper, seeking relief under the Crime Victims Relief Act (CVRA) for her alleged misappropriation of public funds, accrued, and two-year statute of limitations period began to run, when State Board of Accounts (SBOA) provided OAG with copy of its preliminary investigative report, such that OAG knew or should have known of the injury.




SCHOOLS - MAINE

MSAD 6 Board of Directors v. Town of Frye Island

Supreme Judicial Court of Maine - April 14, 2020 - A.3d - 2020 WL 1862206 - 2020 ME 45

School district brought action against town, seeking declaratory judgment that town’s efforts to withdraw from school district were unlawful, and individual taxpayers intervened.

The Superior Court granted summary judgment to district and entered declaratory judgment. Town and taxpayers appealed.

The Supreme Judicial Court held that:




EMPLOYMENT - MONTANA

Turner v. City of Dillon

Supreme Court of Montana - April 7, 2020 - P.3d - 2020 WL 1685819 - 2020 MT 83

Former municipal employee brought wrongful discharge action against city and mayor.

The District Court denied city’s and mayor’s motion to dismiss for failure to state a claim based on the statute of limitations and motion for summary judgment, and, following jury trial, entered judgment on jury verdict for former employee. City and mayor appealed.

The Supreme Court held that filing of wrongful discharge claim with city was not a prerequisite to filing suit and did not toll one-year statute of limitations.




ZONING & PLANNING - NORTH CAROLINA

PHG Asheville, LLC v. City of Asheville

Supreme Court of North Carolina - April 3, 2020 - S.E.2d - 2020 WL 1650898

Hotel developer petitioned for writ of certiorari seeking review of city’s denial of application for conditional use permit to an eight-story hotel in city’s central business district but outside traditional downtown core.

The Superior Court reversed and remanded. City appealed. The Court of Appeals affirmed. City petitioned for discretionary review, which was allowed.

The Supreme Court held that developer presented competent, material, and substantial evidence that proposed hotel satisfied relevant ordinance standards for grant of conditional use permit.

Developer presented competent, material, and substantial evidence to city council that its proposed eight-story hotel in city’s central business district but outside traditional downtown core satisfied the relevant standards in city’s land use ordinance for grant of conditional use permit, by presenting testimony from architects, an appraiser, a traffic engineer, a certified planner, and developer’s vice president, and thus city lacked authority to deny developer’s application for conditional use permit absent any competent, material, and substantial evidence presented in opposition to developer’s showing.




IMMUNITY - VERMONT

Civetti v. Turner

Supreme Court of Vermont - April 3, 2020 - A.3d - 2020 WL 1651229 - 2020 VT 23

ndividual who was injured in motor vehicle accident allegedly caused by the noncompliant town road filed lawsuit to recover for his injuries.

Superior Court granted motion to dismiss for failure to state cause of action, and individual appealed.

The Supreme Court held that:






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