Cases





ENVIRONMENTAL LAW - ALABAMA

Breland v. City of Fairhope

Supreme Court of Alabama - December 31, 2020 - So.3d - 2020 WL 7778223

Property owner and property owner’s corporation brought action against city, seeking a declaration that they were entitled to fill wetlands on the property, which lay outside city’s corporate limits but within its police jurisdiction, without further approval from city, asserting a claim that city had acted negligently regarding property owner’s application for a land-disturbance permit, and seeking expungement of property owner’s criminal citation for beginning work without a permit.

The Circuit Court entered summary judgment in favor of city. Property owner and his corporation appealed. The Supreme Court reversed and remanded. On remand, the Circuit Court entered judgment holding that property owner and his corporation had not obtained a vested right to fill the wetlands, that state law did not preempt city’s ordinances at issue, that city’s ordinances at issue were not improper zoning ordinances, and that the negligence and expungement claims of property owner and his corporation were moot. Property owner and his corporation appealed.

The Supreme Court held that:




COMMUNITY REDEVELOPMENT AGENCIES - CALIFORNIA

Legal Aid Society of San Mateo County v. Department of Finance

Court of Appeal, Third District, California - December 29, 2020 - Cal.Rptr.3d - 2020 WL 7706827 - 21 Cal. Daily Op. Serv. 115

City, as successor to its dissolved redevelopment agency (RDA), and county legal aid society filed petitions for writ of mandate and complaints for declaratory and injunctive relief against Department of Finance (DOF), relating to legal aid society’s agreement with city and RDA, pursuant to which RDA had deposited tax increment funds into RDA’s low and moderate income (LMI) housing fund maintained under Community Redevelopment Law (CRL), and alleging the applicability of exception, under Dissolution Law for community RDAs, to remittance of funds from tax increment financing to county auditor-controller, for distribution to local taxing agencies faced with fiscal emergency.

The Superior Court denied the petition and dismissed the complaint. City and legal aid society appealed.

The Court of Appeal held that Dissolution Law’s exception for an encumbered housing asset was applicable.

Exception, under Dissolution Law for community redevelopment agencies (RDA), to remittance of tax increment financing funds to county auditor-controller for distribution to local taxing agencies faced with fiscal emergency, which exception was for an encumbered housing asset, applied to tax increment financing funds which city’s RDA, under agreement between city, RDA, and county legal aid society, had deposited into RDA’s low and moderate income (LMI) housing fund maintained under Community Redevelopment Law (CRL), in pursuit of public policy of providing affordable housing to legal aid society’s clients; agreement was enforceable obligation of RDA and was also a housing asset under new, legislatively-created LMI housing asset fund, and city, as successor to dissolved RDA, was required, under due diligence review (DDR) for audit of a successor agency, to separately account for amounts in LMI housing fund that were legally restricted as to purpose, even if funds in LMI housing fund were not committed to a specific project.




EMINENT DOMAIN - FEDERAL

Ideker Farms, Inc. v. United States

United States Court of Federal Claims - December 14, 2020 - Fed.Cl. - 2020 WL 7334407

Over 400 farmers, landowners, and business owners from six states sued United States, claiming Fifth Amendment taking of their land for which just compensation was required based on Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP) in order to comply with Endangered Species Act (ESA), thereby allegedly causing intermittent flooding of their properties.

Phase II bench trial was held on three representative properties on which Phase I trial determined that MRRP caused additional or more severe flooding in certain years.

The Court of Federal Claims held that:

Missouri River Recovery Program (MRRP), implemented by Army Corps of Engineers, caused new and ongoing pattern of increased flooding on three representative properties that would continue into future, in support of representative owners’ claims for just compensation for taking of permanent flowage easement across properties due to additional flooding; owners’ descriptions of flooding and change in flooding patterns on their properties post-MRRP were credible and reliable, and their descriptions were not undermined by government’s evidence of crop insurance that could not be used to account for flooding on those bellwether properties.

Increased and repeated flooding on owners’ three representative properties caused by Missouri River Recovery Program (MRRP) that was implemented by Army Corps of Engineers satisfied severity factor for Fifth Amendment taking of flowage easement, where return periods associated with flooding of bellwether properties post-MRRP were likely to occur every two years, flooding was far more frequent and damaging than owners had experienced pre-MRRP and was outside range that they could have reasonably expected to experience, and post-MRRP flooding had considerable effects on owners’ crop yields.

Permanent yearly increased flooding on owners’ three representative properties caused by Missouri River Recovery Program (MRRP) that was implemented by Army Corps of Engineers satisfied duration factor for Fifth Amendment taking of flowage easement, where flooding attributable to MRRP lasted of sufficient duration each year to impact owners’ farming operations by causing them to lose crops, and significant invasions of increased flooding were not temporary or isolated events, but rather, would often recur for foreseeable future.

Continued increased flooding on owners’ three representative tracts was foreseeable consequence of Missouri River Recovery Program (MRRP) that was implemented by Army Corps of Engineers, thus satisfying foreseeability factor for Fifth Amendment taking of flowage easement, where Corps took combined actions to make river shallower and slower, so rising water surface elevations (WSEs) were natural, direct, and probable consequence of Corps’ actions, and Corps was continuing to implement MRRP and would do so into future.

Army Corps of Engineers’ actions in implementing Missouri River Recovery Program (MRRP) were sufficient to change character of owners’ three representative properties, as required for Fifth Amendment taking of flowage easement, where changes implemented by Corps under MRRP caused more severe, frequent, and long-lasting flooding than owners had historically experienced.

Army Corps of Engineers’ actions in implementing Missouri River Recovery Program (MRRP) interfered with reasonable investment-backed expectations of owners that flooding pattern on their three representative properties prior to implementation of MRRP would continue, and thus, Corps’ actions effected Fifth Amendment taking of permanent flowage easement, where owners made substantial investments in farming their properties in reliance on government’s flood protection system prior to implementation of MRRP, owners’ expectation that properties would not be subject to increased flooding was reasonable, and Corps’ MRRP actions interfered with owners’ expectations in that increased flooding led to lower crop yields and drop in productivity and value of properties.

Under stabilization doctrine, permanent flowage easement takings claim by owners of three representative properties, arising from Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP) that caused pattern of increased flooding on properties, accrued, under six-year statute of limitations, on date that effects of MRRP were sufficiently stabilized on last day of year that MRRP construction activities relied on by owners were completed when all of the events fixing government’s liability occurred at time that intermittent flooding on properties became sufficiently permanent in nature and owners knew or should have been aware of nature and extent of MRRP-caused flooding.

Owners of three representative properties were entitled to award of just compensation for taking of permanent flowage easement by Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP) that caused pattern of increased flooding on properties, in amount of $1,530,268 for one owner, $3,698,887 for second owner, and $1,868,928 for third owner, as reasonable approximation of diminution in fair market value of their properties.

Owners of three representative properties alleged damages above and beyond value of flowage easement that was taken by Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP), that caused pattern of increased flooding on properties, for which just compensation was not available, including damages for crop losses and lost profits based on reduced yields, damage to structures and equipment, flood prevention expenses, and flood reclamation expenses, since such expenses were consequential damages that were indirect result of taking, and it was improper to both claim compensation for diminution in value and compensation for consequential damages.

Owners of one representative property were entitled to award of $1,032,338 severance damages for repair of levee, in addition to award of just compensation for diminution in value of property for taking of permanent flowage easement by Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP) that caused pattern of increased flooding on properties, since destruction of levee was entirely attributable to government’s actions, repair of levee was severance damage assumed to protect remainder of property, and compensation for such damage could be measured by mitigation cost of rebuilding levee.

Under prudent investor rule, Moody’s rate was appropriate measure of interest compounded annually, for just compensation award to owners of three representative properties for taking of permanent flowage easement by Army Corps of Engineers’ implementation of Missouri River Recovery Program (MRRP) that caused pattern of increased flooding on properties.




EMINENT DOMAIN - GEORGIA

HBC2018 LLC v. Paulding County School District

Court of Appeals of Georgia - December 21, 2020 - S.E.2d - 2020 WL 7488624

Lender filed a claim for inverse condemnation against school district, seeking to collect loan for construction of field house building.

Parties filed cross motions for summary judgment.

The Superior Court granted summary judgment in favor of school district, and lender appealed.

The Court of Appeals held that lender had no property interest in repayment of loan.

Lender had no property interest in repayment of loan used to construct field house building, as required for takings claim against school district seeking to collect loan obtained by booster club president to construct field house; although school district made gratuitous payments toward balance of loan, lender issued loan to booster club, which assumed responsibility for repayment of loan, lender did not provide materials or expend labor for construction of field house, there was no evidence that school’s use of field house frustrated lender’s right to seek repayment of debt, lender secured a default judgment against obligor on loan and released guarantors, and school district was not a party to loan agreement and was under no legal obligation to repay lender.




EMINENT DOMAIN - HAWAII

DW Aina Le‘a Development, LLC v. State Land Use Commission

Supreme Court of Hawai‘i - December 17, 2020 - P.3d - 2020 WL 7394265

Landowner brought inverse condemnation action in state court against the State of Hawai‘i, challenging reclassification of its property from urban used to agricultural use.

Following removal, the United States District Court granted State’s motion to dismiss on limitations grounds, and landowners appealed. The Court of Appeals certified question to the Hawai‘i Supreme Court.

The Supreme Court held that six year statute of limitations applies to regulatory taking claim under the under the Hawai‘i Constitution.




BALLOT INITIATIVES - MICHIGAN

League of Women Voters of Michigan v. Secretary of State

Supreme Court of Michigan - December 29, 2020 - N.W.2d - 2020 WL 7765755

Voters, ballot-question committee, and nonpartisan voting rights group brought action against Secretary of State, seeking declaration that statutory changes to procedures governing petition drives were unconstitutional.

Legislature brought separate action against Secretary of State seeking a declaration that the statutes were constitutional. After the cases were consolidated, the Court of Claims determined some, but not all, of the statutes were unconstitutional. Voters, committee, and group appealed, and the Court of Appeals affirmed in part, but concluded all the challenged statutes were unconstitutional. Legislature sought leave to appeal and moved to intervene in the other case.

The Supreme Court held that:

Legislature’s claim or defense and main action, brought by voters, ballot-question committee, and voting rights group to challenge constitutionality of statutes governing petition drives, had question of law or fact in common, as required for Legislature’s permissive intervention on appeal; main action and Legislature both sought declaratory judgment as to constitutionality of certain statutes.

Legislature was an aggrieved party, as required to intervene and appeal action that had resulted in declaration that certain statutes governing petition drives were unconstitutional; even though neither Attorney General nor any other party appealed, lower courts had concluded that Legislature had no standing to pursue its case and considered and rejected Legislature’s arguments that statutes were constitutional, and failing to allow Legislature’s intervention would have enabled executive branch to nullify Legislature’s work by declining to contest lower-court rulings.

Supreme Court would deem Legislature’s motion to intervene for purposes of appeal as timely in declaratory judgment action, even though Legislature did not file motion before deadline for application for leave to appeal case involving challenge to statutes governing petition drives, where Legislature participated in case below, Legislature had filed motion to intervene earlier when plaintiffs sought to bypass Court of Appeals, and Supreme Court explicitly permitted Legislature to file another motion to intervene after the expedited deadline for appealing had expired.

Case that sought declaration that certain statutes governing petition drives were unconstitutional was moot on appeal as to ballot-question committee, where committee voluntarily stopped circulating its petition with intent to put it on ballot due to COVID-19 pandemic, a Supreme Court decision on matter would only have served to instruct committee as to the law should committee choose to pursue a petition in the future, and committee did not have anything at stake in dispute.

Issue in case, in which ballot-question committee sought declaration that certain statutes governing petition drives were unconstitutional, was not likely to recur or to evade review, and thus Supreme Court would not hear appeal of case, as to committee, pursuant to mootness exception; committee, which voluntarily stopped circulating its petition with intent to put it on ballot due to COVID-19 pandemic, did not assert that it intended to resume petition drive later, and Supreme Court heard and could easily have decided case before relevant election.

Voters and voting rights group lacked standing to seek declaration as to constitutionality of statutes governing petition drives, despite contention that voters and group’s members wished to exercise their rights to support placement of proposals on general election ballot by signing petitions; ballot-question committee voluntarily stopped circulating its particular petition due to COVID-19 pandemic, and voters and members did not allege that they had any concrete plans to sign any other petition, much less shown that their signatures would not be counted due to statutes.

Supreme Court would vacate lower courts’ decisions declaring that certain statutes governing petition drives were unconstitutional, after determining that case was moot as to one plaintiff and remaining plaintiffs lacked standing, where case had been a procedural mess from beginning, with Attorney General declining to defend constitutionality of statutes, Legislature bringing its own action rather than intervening, Court of Claims adjudicating a dispute with no actual controversy as required by declaratory judgments rule, and Court of Appeals issuing a published opinion when no appealing party was aggrieved by lower-court judgment.

Attorney General opinion concluding that statutes governing petition drives were unconstitutional did not confer standing on Legislature to bring action seeking declaration that statutes were constitutional; allowing standing based on any formal opinion concluding that an act was unconstitutional would go far beyond view that a legislative body could defend the constitutionality of an act that has already been struck down by a court when the executive refuses to do so.




ZONING & PLANNING - MINNESOTA

State v. Sanschagrin

Supreme Court of Minnesota - December 30, 2020 - N.W.2d - 2020 WL 7759466

Defendants, who owned undeveloped lot on lake, were charged with misdemeanor violations of city code arising from their installation of dock.

The District Court dismissed. State appealed. The Court of Appeals affirmed. State appealed.

The Supreme Court held that defendants’ letter to city in response to notice of zoning violation was not a written request allowing automatic approval upon city’s non-response.

Landowners’ letter to city planning commission contesting a notice of zoning violation relating to dock installation on undeveloped lot on lake and asserting their interpretation of city zoning code as allowing the dock was not a written “request” under statute providing for automatic approval of a written request relating to zoning for a permit, license, or other governmental approval of an action upon an agency’s failure to deny request within 60 days; letter was not made on an application form provided by city, and letter did not clearly identify a specific license, permit or “other governmental approval” sought.




EMINENT DOMAIN - MISSISSIPPI

Mississippi Sand Solutions, LLC v. Otis

Supreme Court of Mississippi - December 17, 2020 - So.3d - 2020 WL 7417014

Sand mining company brought petition seeking to condemn private right-of-way across neighboring landowners’ property.

After bench trial portion of proceeding, the Special Court of Eminent Domain granted directed verdict in favor of landowners. Mining company appealed.

The Supreme Court held that:

Issue of whether sand mining company had access to its property was raised and ruled on in prior declaratory judgment action by neighboring landowners, and thus collateral estoppel doctrine barred relitigation of such issue in mining company’s action under private condemnation statute, seeking to condemn portion of landowners’ property for access to mining company’s property, where landowners argued in declaratory judgment action that there was no entitlement by mining company to an easement by necessity because alternative access was available, and trial court’s order in declaratory judgment action specifically held that no easement by necessity was established because there were other ways to access mining company’s property.

Finding that mining company had access to its property was essential to prior judgment entered in favor of neighboring landowners in their declaratory judgment action against mining company, asserting that mining company did not hold easement by necessity across landowners’ property, supporting finding that collateral estoppel barred relitigation of issue of access to property in mining company’s petition for condemnation of portion of landowners’ property to provide access to mining company’s property, where, in declaratory judgment action, landowners based their argument for lack of existence of easement solely on ground that mining company had alternative access to its property.

Condemnation of portion of neighboring landowners’ property was not necessary for ingress and egress to mining company’s property, defeating mining company’s petition under private condemnation statute, where mining company principal testified that mining company had always been able to cross to its property and that landowners had never barred it or its employees from crossing to its property.




POLITICAL SUBDIVISIONS - KENTUCKY

Northern Kentucky Area Development District v. Wilson

Supreme Court of Kentucky - December 17, 2020 - S.W.3d - 2020 WL 7396295 - 2020 IER Cases 496,244

Employee brought action against her former employer, the Northern Kentucky Area Development District (NKADD), under the Kentucky Whistleblower Act (KWA), alleging that it retaliated against her by forcing her resignation for having reported a co-worker’s fraudulent billing practice.

The Circuit Court granted former employer’s motion for summary judgment, and employee appealed. The Court of Appeals reversed, and discretionary review was granted.

The Supreme Court held that as a matter of first impression, as to those claims filed before January 1, 2018, including employee’s, NKADD was not one of the Commonwealth’s “political subdivisions” subject to the KWA.

Northern Kentucky Area Development District (NKADD) was not then a Commonwealth “political subdivision” and so was not potentially liable on Kentucky Whistleblower Act (KWA) claim filed before January 1, 2018, by former employee for NKADD’s alleged retaliation in purportedly forcing her to resign for having reported a co-worker’s fraudulent billing practice; although statutorily NKADD was a “public agency” for purposes of the Interlocal Cooperation Act, that did not turn it into a political subdivision for KWA purposes, and, under the Comair analysis, 295 S.W.3d 91, while NKADD was created by statute by the General Assembly, an immune “parent,” it did not serve an integral state function, as when its multitude of elder care, economic development, transportation planning, and other services was examined holistically, its operation concerned more regional than statewide needs, it carried out proprietary, non-governmental functions, and it was not necessary to government services.




MUNICIPAL CORPORATIONS - NORTH DAKOTA

DiCesare v. Charlotte-Mecklenburg Hospital Autuhority

Supreme Court of North Carolina - December 18, 2020 - S.E.2d - 2020 WL 7415943

Insureds filed putative class action against healthcare services provider, as quasi-municipal corporation organized under Hospital Authorities Act, seeking reimbursement for healthcare costs based upon claims for restraint of trade and monopolization pursuant to North Carolina General Statutes and Anti-Monopoly Clause in North Carolina’s Constitution.

The Superior Court granted provider judgment on pleadings in part. Insureds noted appeal, and provider petitioned for writ of certiorari.

The Supreme Court held that:

Healthcare services provider, as quasi-municipal corporation organized under Hospital Authorities Act, not for-profit corporation, was not “person, firm, or corporation,” within meaning of unfair trade practice and antitrust statutes, and thus, provider was immune from liability for insureds’ class action statutory claims for restraint of trade and monopolization by allegedly encouraging insurers to steer insureds toward provider by offering insurers modest concessions on provider’s market-power driven, premium prices while forbidding insurers from allowing provider’s competitors to do same; provider was registered non-profit organization jointly operated by city and county and acting in its delegated legislative function of providing public rather than private healthcare facilities.

Insureds failed to sufficiently allege that healthcare services provider had monopoly in relevant market, as required to state class action claim against provider under Anti-Monopoly Clause of State Constitution; insureds did not adequately plead that provider controlled so large portion of market that it not only stifled competition and restricted freedom of commerce, but also controlled prices, as insureds alleged that provider only possessed approximately 50% share of acute inpatient hospital services in relevant market and that it faced sizeable competitors within that market, but did not allege that provider had ability to actually control prices in that market.




MUNICIPAL ORDINANCE - OHIO

City of Cincinnati v. Fourth National Realty, L.L.C.

Supreme Court of Ohio - December 22, 2020 - N.E.3d - 2020 WL 7501943 - 2020 -Ohio- 6802

City brought action against the owner of a billboard sign, claiming that the sign was installed without obtaining the necessary permit and variance. Owner counterclaimed for a declaration that the city’s outdoor advertising prohibitions violated its free speech and due process rights.

City moved for summary judgment, arguing that the trial court lacked subject-matter jurisdiction because the owner had not served the attorney general with notice of its constitutional claims at the inception of owner’s case. While concluding that it had subject-matter jurisdiction, the Court of Common Pleas granted the motion. The parties appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. City sought discretionary review.

The Supreme Court held that:

Statute requiring service on the attorney general of a pleading seeking a declaratory judgment that a statute or municipal ordinance was unconstitutional did not deprive a trial court of subject-matter jurisdiction if such service did not occur at the inception of the action; the statute contained no language dictating the timing of service on the attorney general, and there was no language divesting the trial court of its subject-matter jurisdiction if parties did not complete service on the attorney general within a certain time.

Owner of a billboard sign satisfied the requirements of a statute requiring service on the attorney general of a pleading seeking a declaratory judgment that a statute or municipal ordinance was unconstitutional, in an action brought by a city, claiming that the sign was installed without obtaining the necessary permit and variance, in which the owner counterclaimed for a declaration that the city’s outdoor advertising prohibitions violated its free speech and due process rights, where the owner asserted its challenge in a counterclaim and ultimately served the counterclaim on the attorney general, although such service did not occur until nearly two and a half years after the constitutional violations were first alleged.




OPEN RECORDS - PENNSYLVANIA

Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections

Supreme Court of Pennsylvania - December 22, 2020 - A.3d - 2020 WL 7502321

Newspaper petitioned to enforce a decision of Office of Open Records (OOR) that required Department of Corrections (DOC) to disclose records, pursuant to the Right to Know Law (RTKL) regarding illnesses of inmates and staff members at certain correctional facility.

The Commonwealth Court denied newspaper’s motion for summary relief and then the Court, in single-judge opinions, concluded that DOC acted in bad faith, ordered disclosure of certain records, and ordered sanctions and awarded attorney fees to newspaper. DOC’s petition for allowance of appeal was granted.

The Supreme Court held that:

Department of Corrections’ (DOC) open records officer failed to act with diligence in response to newspaper’s request for records regarding illnesses of inmates and staff members at certain correctional facility, which supported conclusion that DOC acted in bad faith under Right to Know Law (RTKL); even though officer forwarded request to DOC’s Health Care Bureau, officer did not seek an explanation or question Bureau’s narrow interpretation that request exclusively sought records related to specific internal investigation, and officer did not take any steps to confirm whether only records that existed other than those generated in ongoing investigation were medical records.

The attorney fees provision of the Right to Know Law (RTKL) permits recovery of attorney fees when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith; recovery is not limited to when a court reverses the determination of the appeals officer or the agency deems the request denied.




MUNICIPAL ORDINANCE - WASHINGTON

City of Seattle v. Rodriguez

Court of Appeals of Washington, Division 1 - December 14, 2020 - P.3d - 2020 WL 7332611

Defendant was convicted in the Superior Court under city’s sexual exploitation ordinance, stemming from incident in which he handed undercover police detective $80 in exchange for sexual conduct.

Defendant appealed, challenging ordinance as unconstitutionally vague and overbroad.

The Court of Appeals held that:

City’s sexual exploitation ordinance, which proscribed agreements to compensate another person in exchange for engaging in sexual conduct, was not subject to strict-scrutiny analysis for constitutionality, where prostitution, which was clearly the conduct proscribed by the ordinance, was not a free speech activity protected by the First Amendment.

City’s sexual exploitation ordinance, which proscribed agreements to compensate another person in exchange for engaging in sexual conduct and required no intent element, was not unconstitutionally overbroad in violation of the First Amendment, where the proscribed conduct, which was clearly the solicitation of prostitution, was not a free speech activity protected by the First Amendment.

City’s sexual exploitation ordinance, which proscribed agreements to compensate another person pursuant to an understanding that the person would engage in sexual conduct, was not rendered unconstitutionally vague in violation of the Due Process Clause based on its inclusion of term “agreement” or phrase “pursuant to an understanding,” the meaning of which was readily ascertainable to persons of ordinary intelligence.

City’s sexual exploitation ordinance, which proscribed agreements to compensate another person in exchange for engaging in sexual conduct, was not rendered unconstitutionally vague in violation of the Due Process Clause based on the discretion vested in police officers to enforce the ordinance, since the ordinance did not invite an inordinate amount of police discretion outside of the normal level of police officer discretion typically associated with the enforcement of statutes.

 

 




OPEN MEETINGS - WASHINGTON

Tateuchi v. City of Bellevue

Court of Appeals of Washington, Division 1 - December 28, 2020 - P.3d - 2020 WL 7692154

Non-profit corporation and one of its members filed petition under the Land Use Petition Act (LUPA), seeking to revoke property owner’s conditional use permit authorizing use of a rooftop in city as helistop, and filed claim against city council, alleging violation of the Open Public Meetings Act (OPMA) in connection with appeal of city’s decision denying LUPA petition.

The Superior Court affirmed the city’s decision, and dismissed the action. Plaintiffs sought direct review before the Supreme Court, which transferred review.

The Court of Appeals held that:




MUNICIPAL ORDINANCE - CALIFORNIA

Hotop v. City of San Jose

United States Court of Appeals, Ninth Circuit - December 7, 2020 - 982 F.3d 710 - 20 Cal. Daily Op. Serv. 12,665 - 2020 Daily Journal D.A.R. 12,969

Owners of rent-stabilized rental housing in city brought civil rights action challenge, on constitutional grounds, the disclosure obligations imposed on them by municipal ordinance.

The United States District Court granted motion to dismiss for failure to state cause of action, and lessors appealed.

The Court of Appeals held that:




IMMUNITY - KENTUCKY

A.H. v. Louisville Metro Government

Supreme Court of Kentucky - December 17, 2020 - S.W.3d - 2020 WL 7395585

Inmate’s estate brought action against city and county’s consolidated local government body and director of local department of corrections, among others, alleging multiple torts and constitutional violations seeking compensatory and punitive damages for allegedly withholding inmate’s medication.

After removal and remand, the Circuit Court entered four orders granting summary judgment and dismissing all claims. Estate appealed.

The Court of Appeals affirmed. Both sides’ requests for discretionary review were granted.

The Supreme Court held that:




MUNICIPAL ORDINANCE - OHIO

Ohioans for Concealed Carry, Inc. v. Columbus

Supreme Court of Ohio - December 18, 2020 - N.E.3d ----2020 WL 7409665 - 2020 -Ohio- 6724

Gun rights organizations, allegedly composed of gun owners from across the state, filed complaint against city, seeking an injunction and declaratory relief against city ordinances.

The Court of Common Pleas granted activists’ request for a permanent injunction enjoining enforcement of ordinance prohibiting the possession of certain firearm accessories, and denying injunctive relief regarding enforcement of ordinance prohibiting individuals convicted of domestic violence from possessing firearms.

The Tenth District Court of Appeals reversed and remanded. Plaintiffs’ petition for discretionary review was granted.

The Supreme Court held that:

Firearms statute, which pertained to ensuring that laws throughout the state regarding right to bear arms were uniform, did not provide basis for gun rights activists to have standing, in declaratory judgment action, to challenge two firearms-related city ordinances that restricted the rights of individuals convicted of misdemeanor domestic-violence offenses from possessing firearms and prohibited “bump stocks” firearms accessories; even if statute implied a private right of action, that did not abrogate the need to establish standing, and plaintiffs’ arguments that whether any of them owned or planned to own any of the several firearm components banned by the city did not show they had a personal stake in the outcome of the case.

Gun rights organizations, allegedly composed of firearm owners across the state, did not have associational standing, by virtue of one member’s individual-taxpayer standing, to pursue taxpayer action for injunctive relief for allegedly unconstitutional city ordinances that restricted some individuals from possessing firearms and “bump-stocks” firearms accessories, where complaint did not allege that corporations were bringing the action on behalf of that member, but rather, made clear that corporations and their members were suing on behalf of themselves.

Gun rights organizations lacked standing to pursue relief under the Declaratory Judgment Act for allegedly unconstitutional city ordinances that restricted some individuals from possessing firearms and “bump stocks” firearms accessories, where complaint was devoid of any allegation signaling a significant possibility of future injury, as complaint did not contain allegations that organizations’ members owned firearms with bump stocks or some other accessory that could be considered within purview of the bump-stocks ordinance, or that any members offered bump stocks for sale, nor did it contain any allegations specific to the weapons-under-disability ordinance.

Gun rights organizations lacked standing to pursue relief under the Declaratory Judgment Act for allegedly unconstitutional city ordinances that restricted some individuals from possessing firearms and “bump stocks” firearms accessories, where complaint was devoid of any allegation signaling a significant possibility of future injury.




PUBLIC UTILITIES - OHIO

In re Determination of Existence of Significantly Excessive Earnings for 2017 Under Electric Security Plan of Ohio Edison Company

Supreme Court of Ohio - December 1, 2020 - N.E.3d - 2020 WL 7033864 - 2020 -Ohio- 5450

Office of Ohio Consumers’ Counsel (OCC) sought judicial review of orders of the Public Utilities Commission finding that an electric-distribution utility’s earnings for a particular year were not excessive, challenging the Commission’s decision to remove the utility’s revenue collected under its distribution modernization rider (DMR) from the excessive-earnings test.

The Supreme Court held that:

Public Utilities Commission violated the statute governing electric security plans (ESP) by removing an electric-distribution utility’s revenue collected under its distribution modernization rider (DMR) from the test to determine whether the utility’s ESP resulted in significantly excessive earnings compared to companies facing comparable risk; the Commission offered no explanation as to how the statute permitted exclusion of the revenue as introducing an unnecessary element of risk that undermined the DMR’s purpose of providing credit support, and the DMR was an adjustment under the statute of the sort the Commission was required to include when determining whether an ESP resulted in excessive earnings.

Supreme Court lacked jurisdiction over issue of whether the Public Utilities Commission violated the statute requiring the Commission to file written opinions in all contested cases by failing to explain the statutory and evidentiary bases for excluding an electric-distribution utility’s revenue collected under its distribution modernization rider (DMR) from the test to determine whether the utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, where the Office of Ohio Consumers’ Counsel did not allege a violation of the statute in its application for rehearing before the Commission challenging the DMR decision.

Public Utilities Commission’s claim that it sought to improve electric-distribution utility’s capital structure was not a basis for affirming its decision to remove the utility’s revenue collected under its distribution modernization rider (DMR) from the test to determine whether the utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, where the Commission, in rendering its decision, never said it was making an adjustment for capital structure when it removed DMR revenue, and the utility did not argue that removal of the revenue was justified on such ground.

Need for a valid comparison based on comparable risk was not a basis for affirming the Public Utilities Commission’s decision to remove an electric-distribution utility’s revenue collected under its distribution modernization rider (DMR) from the test to determine whether the utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, where the Commission never mentioned the comparable-risk clause in the ESP statute’s provision requiring the excessive-earnings test as its reason for excluding the DMR revenue.

Purported status of revenue earned by an electric-distribution utility under its distribution modernization rider (DMR) as an extraordinary item or an additional liability or write-off of a regulatory asset, so as not to be part of the utility’s earned return on common equity, was not a basis for affirming the Public Utilities Commission’s decision to remove DMR revenue from the test to determine whether the utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, where the Commission did not rely on the utility’s argument regarding such a status or make express or implied findings to support it, and the application seeking the Commission’s analysis did not mention an exclusion of DMR revenue as an extraordinary item.

Office of Ohio Consumers’ Counsel (OCC) established harm resulting from the Public Utilities Commission’s decision to remove an electric-distribution utility’s revenue collected under its distribution modernization rider (DMR) from the test to determine whether the utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, as required to seek reversal of an order of the Commission; the OCC was not required to show that ratepayers were entitled to a refund to establish harm, but instead the OCC’s harm was that the utility was not required to include its DMR revenue in its earnings for the excessive-earnings test.

Supreme Court had jurisdiction to remand to the Public Utilities Commission for a new proceeding to determine whether an electric-distribution utility’s electric security plan (ESP) resulted in significantly excessive earnings compared to companies facing comparable risk, in an appeal brought by Office of Ohio Consumers’ Counsel challenging the Commission’s decision to exclude the utility’s revenue collected under its distribution modernization rider (DMR) from the excessive-earnings test, where the Commission did not decide a return-on-equity threshold for the test, so that it was unclear whether inclusion of the DMR revenue would have resulted in a return-on-equity calculation that exceeded the applicable threshold.

Office of Ohio Consumers’ Counsel (OCC) did not waive its challenge to a stipulation approved by the Public Utilities Commission, which recommended that the Commission find that utility’s electric security plan (ESP) did not result in significantly excessive earnings compared to companies facing comparable risk; the OCC was not required to argue on appeal that the stipulation did not meet the three criteria necessary for approval of a stipulation, but instead it was enough for the OCC to argue that the Commission’s orders were unlawful and unreasonable because it removed the utility’s revenue collected under the utility’s distribution modernization rider (DMR) in making an excessive-earnings determination, which directly implicated the Commission’s approval of the stipulation.




PUBLIC UTILITIES - OHIO

Corder v. Ohio Edison Company

Supreme Court of Ohio - November 12, 2020 - N.E.3d - 2020 WL 6600368 - 2020 -Ohio- 5220

Landowners who were organic farmers brought action seeking declaratory and injunctive relief regarding scope electrical transmission line easement, specifically whether electric utility could use herbicides to control vegetation within easement.

The Court of Common Pleas entered a judgment after sua sponte finding that Public Utilities Commission of Ohio (PUCO) had exclusive jurisdiction. Landowners appealed. The Court of Appeals reversed. Utility sought discretionary review.

The Supreme Court held that landowners’ action was within subject-matter jurisdiction of common pleas court and was not within PUCO’s exclusive jurisdiction.

Landowners’ action seeking declaratory and injunctive relief regarding scope of electrical transmission line easement, specifically whether electric utility could use herbicides to control vegetation within easement, was within subject-matter jurisdiction of common pleas court, and was not a matter within the exclusive jurisdiction of Public Utilities Commission of Ohio (PUCO); determination of scope of easement did not depend on PUCO’s exercise of its administrative expertise or its review of a public utility’s vegetation-management program, but rather required a court to interpret and apply the language of the instrument creating the easement.

When a declaratory judgment action seeks an adjudication of the terms of an electrical transmission line easement to determine respective property rights of a landowner and a public utility, that particular class of case is not within the exclusive jurisdiction of Public Utilities Commission of Ohio (PUCO), but rather may be heard and decided by a court of common pleas.




BONDS - PUERTO RICO

Altair Global Credit Opportunities Fund (a), LLC v. United States

United States Court of Federal Claims - November 23, 2020 - Fed.Cl. - 2020 WL 6865053

Bondholders filed suit against United States, seeking just compensation for alleged taking of their pledged property serving as collateral for their bonds issued by Puerto Rico’s employers retirement system (ERS), including their right to receive timely principal and interest payments, as well as their purported liens on and contractual right to future employer contributions to ERS, after Oversight Board established by Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), incorporating Bankruptcy Code, to pursue judicially supervised debt restructuring for Puerto Rico drafted ERS bond legislation and mandated its enactment to transfer bondholders’ collateral to Puerto Rico without compensation.

Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim.

The Court of Federal Claims holds that:

Puerto Rico’s Financial Oversight and Management Board that allegedly effected taking of bondholders’ liens on their pledged property and their contractual right to timely payment of principal and interest by Puerto Rico’s Employers Retirement System (ERS), as issuer of bonds, was not “federal entity” subject to Tucker Act jurisdiction, but rather, was “local entity,” under Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), providing that Board “shall be created as an entity within the territorial government” and “shall not be considered to be a department, agency, establishment, or instrumentality” of federal government, and Congress gave Board structure, duties, and powers consistent with entity in territorial government.

Puerto Rico Financial Oversight and Management Board’s actions, that allegedly effected taking of bondholders’ liens on their pledged property and their contractual right to timely payment of principal and interest by Puerto Rico’s Employers Retirement System (ERS), as issuer of bonds, could not be attributed to United States, under sole-sovereign doctrine, thus barring exercise of Tucker Act jurisdiction over claims under Fifth Amendment Takings Clause that applied to Puerto Rico through Fourteenth Amendment, since Board was instrumentality of Puerto Rico, and Board’s acts were attributable to Puerto Rico as expressly directed in Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

Court of Federal Claims’ prior determination that Congress did not withdraw Tucker Act jurisdiction in Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) or direct all suits under PROMESA to federal district court was law of the case that barred United States from asserting that same argument in subsequent motion to dismiss for lack of jurisdiction over bondholders’ takings claims arising from their alleged liens on and contractual right to future contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds.

Bondholders’ takings claims arising from their alleged liens on and contractual right to future contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds, was ripe, even though bondholders were still litigating value of their bonds in other courts, since claims were based on retroactive application of Bankruptcy Code provision incorporated in Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), and bondholders’ separate ongoing litigation only affected extent of damages.

Prior determination by district court and First Circuit, that under Puerto Rico law bondholders did not have property interest in alleged liens on future employer contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds, collaterally estopped bondholders from relitigating issue of whether they had property interest required for their claims seeking just compensation for alleged taking of their purported liens; issue of property interest in liens was identical to issue in prior proceeding, was litigated and resolved, and was necessary to resulting judgment, and bondholders had full and fair opportunity to litigate that issue.

Under Puerto Rico law, bondholders lacked property interest in their purported liens on future employer contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds, thus barring their claims seeking just compensation for alleged taking of their liens, since ERS did not have property interest in future employer contributions as they were merely expectancy rather than fixed and calculable at time of ERS’s petition under Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) provision incorporating Bankruptcy Code providing that property acquired by debtor after petition was not subject to any lien resulting from any security agreement entered into by debtor before petition.

Bondholders lacked property interest in their contractual right to future employer contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds, thus barring bondholders’ claims seeking just compensation for alleged taking of their contracts by ERS’s petition under Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) provision incorporating Bankruptcy Code, since bonds were not taken by petition or underlying statutory authority, but rather, their value was impaired, which was insufficient for taking, as at most, Bankruptcy Code took some subject matter of contract, namely, future employer contributions, but not contract itself.

Government’s enactment of Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), incorporating Bankruptcy Code, that enabled Puerto Rico’s debt restructuring, did not result in regulatory taking of bondholders’ contractual right to future employer contributions to Puerto Rico’s employers retirement system (ERS), as issuer of bonds, by cutting off bondholders’ ability to receive benefit of future employer contributions to ERS; Penn Central factors weighed against taking, as contributions were merely expectancy and bonds still existed, United States did not interfere with investment-backed expectations of bondholders who were warned that bankruptcy was possibility, and government had legitimate interest in mitigating Puerto Rico’s fiscal emergency.




EMINENT DOMAIN - VIRGINIA

Palmyra Associates, LLC v. Commissioner of Highways

Supreme Court of Virginia - December 17, 2020 - S.E.2d - 2020 WL 7393500

Department of Transportation (DOT) filed petition in condemnation after recording certificate of take.

The Circuit Court entered order confirming commissioners’ award of $107,131 for the take and setting aside the award for damages to the residue. Landowner appealed.

The Supreme Court held that:

Landowner’s ten-year-old site plans were not admissible in eminent domain action to establish damages to the residue of the property not taken, where site plans had not been approved, landowner had not met conditions which county had imposed on approval, it was unclear whether site plans would require retaining wall, widened road, or bridge, and plans required entrance to proposed development for which landowner would have to gain approval.

Landowner’s testimony concerning lost “development potential,” which was necessarily rooted in a lost “pad site,” was speculative and inadmissible in eminent domain action to show damages to the residue; pad site depended on contingent and speculative site plans, property’s development potential was uncertain because the county had imposed certain conditions, which had not been satisfied, the property was situated in a flood plain, which would necessitate adjustments, and the property would need additional infrastructure changes to be developed as a commercial site.

Invited error doctrine precluded consideration of landowner’s claim on appeal in eminent domain action that the trial court erred in putting the parties on terms of either the court confirming the value of the taken property or ordering a new trial, where landowner did not object at that time that the trial court was “putting it on terms,” but instead agreed that the circuit court should confirm the award rather than grant a new trial.

 

 




PUBLIC EMPLOYMENT - ALABAMA

Caton v. City of Pelham

Supreme Court of Alabama - December 11, 2020 - So.3d - 2020 WL 7326399

Terminated city employee, who had worked as a police officer and later as a firefighter and who allegedly had suffered injuries at work, brought action against city based on claim of retaliatory discharge in violation of workers’ compensation statutes.

The Circuit Court entered summary judgment for city after setting aside an initial summary judgment for city. Terminated city employee appealed.

The Supreme Court held that:




BALLOT INITIATIVE - ARKANSAS

Kimbrell v. Thurston

Supreme Court of Arkansas - December 3, 2020 - S.W.3d - 2020 Ark. 392 - 2020 WL 7136101

Voter brought action for writ of mandamus and declaratory and injunctive relief, challenging sufficiency of ballot titles of constitutional amendments that General Assembly proposed concerning term limits and process for submitting, challenging, and approving proposed initiated acts, constitutional amendments, and referenda.

The Circuit Court dismissed. Voter appealed.

The Supreme Court held that:

Voter’s appeal of dismissal of complaint seeking mandamus, declaratory, and injunctive relief as to allegedly insufficient ballot titles on constitutional amendments proposed by General Assembly was moot, where deadlines for both the election and certification of election results had occurred, voter did not request in his motion to expedite that his appeal be addressed before certification deadline, voter did not lodge appeal with Supreme Court until six days after election, and voter failed to seek a stay of certification from either the circuit court or Supreme Court.

Exception to mootness doctrine for issues that were capable of repetition yet evading review did not apply to allow Supreme Court to review moot appeal of dismissal of voter’s action seeking mandamus, declaratory, and injunctive relief as to allegedly insufficient ballot titles on constitutional amendments proposed by General Assembly, where Court addressed the nearly identical issue presented in case in another case, and Court’s opinion in other case was handed down before election.

Exception to mootness doctrine for issues raising considerations of substantial public interest which, if addressed, would prevent future litigation did not apply to allow Supreme Court to review moot appeal of dismissal of voter’s action seeking mandamus, declaratory, and injunctive relief as to allegedly insufficient ballot titles on constitutional amendments proposed by General Assembly, where Court addressed and rejected the nearly identical issues presented in case in another case that Court handed down before election.




ANNEXATION - INDIANA

Holcomb v. City of Bloomington

Supreme Court of Indiana - December 15, 2020 - N.E.3d - 2020 WL 7349155

City brought declaratory judgment action against Governor, challenging statute that stopped city’s proposed annexation of several areas of land and prohibiting city from trying to annex the areas for five years.

The Circuit Court entered summary judgment in favor of city. Governor appealed.

The Supreme Court held that:

Statute stopping city’s proposed annexation of several areas of land and prohibiting city from trying to annex the areas for five years vested enforcement authority in Governor, and thus Governor was proper defendant in city’s declaratory judgment action challenging statute; annexation statutes primarily impacted public, rather than private relations, statute at issue did not require challengers to use remonstrance process to challenge annexation, as was generally required to enforce annexation laws, and was incompatible with remonstrance procedure, annexation statutes impacted citizens’ relationship to municipal bodies that were subdivisions of the state, and Governor was the constitutional officer vested with executive power of the state, giving him an interest in the relationships between public and state’s subdivisions.

Prudential concerns with regard to Governor being named defendant in city’s challenge to statute stopping city’s proposed annexation of several areas of land and prohibiting city from trying to annex the areas for five years did not render case nonjusticiable, but rather, compelled court to reach the merits; requiring city to sue different defendant would have resulted in substantial delay and cost to taxpayers, but court would ultimately have reached same result on underlying question, there was no other defendant for city to sue unless city first expressly violated statute, and separation of powers principles compelled court to check an unconstitutional action of other branches of government.

Speed of city’s attempted annexation of areas of land, opposition to the annexation, and city’s drawing of annexation boundaries to cover areas with existing remonstration waivers in order to minimize opposition to annexation were not unique circumstances of city’s proposed annexation that warranted special treatment that precluded legislature from making a general law applicable to city, and thus statute stopping city’s proposed annexation and prohibiting city from trying to annex the areas for five years was unconstitutional special legislation; 133 days for city to complete annexation process was within the statutory time frame for annexations, which allowed them to take place in 120 days, landowners commonly opposed annexations and did not shy away from using statutory remonstrance process to challenge them, and remonstrance waivers were commonly discussed and incorporated into determining which areas were suitable for annexation.




ANNEXATION - MISSISSIPPI

Pendorff Community Association, LLC v. City of Laurel

Supreme Court of Mississippi - September 24, 2020 - 302 So.3d 1208

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 internal growth, as subfactor of the “need to expand” factor relevant to determining the reasonableness of a municipal annexation, favored approval of city’s proposed annexation of certain real property; over a 13-year period preceding the annexation, city issued 295 new single-family residential-unit permits, 170 new multifamily residential-unit permits, 152 new commercial permits, and almost 10,500 other permits for a combined total value of $359 million, and expert witness for community association that opposed the annexation agreed that those numbers reflected a component of internal growth.

Sufficient evidence supported chancellor’s finding that city’s population increase, as subfactor of the “need to expand” factor relevant to determining the reasonableness of a municipal annexation, favored approval of city’s proposed annexation of certain real property; though city’s population had previously experienced a period of decline, in more recent years it had increased again, and city’s expert witness testified that city had a dense population, with 1,142 people per square mile.

Sufficient evidence supported chancellor’s finding that city’s need for developable land, as subfactor of the “need to expand” factor relevant to determining the reasonableness of a municipal annexation, favored approval of city’s proposed annexation of certain real property; only 7.7% of city’s land was vacant and unconstrained, proposed annexation would increase city’s vacant and unconstrained land by almost 30 percent, and expert witness for community association that opposed the annexation testified that he could not identify a city in the state with less vacant and developable land.

Sufficient evidence supported chancellor’s finding that increased traffic counts within the area that city proposed to annex, as subfactor of the “need to expand” factor relevant to determining the reasonableness of a municipal annexation, favored approval of the proposed annexation; though city’s expert witness provided no reason for the increased traffic counts within the proposed annexation area, it was undisputed that traffic counts were increasing.

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.




PUBLIC UTILITIES - OHIO

In re Complaint of Wingo v. Nationwide Energy Partners, L.L.C.

Supreme Court of Ohio - December 9, 2020 - N.E.3d - 2020 WL 7233638 - 2020 -Ohio- 5583

Customer who purchased water, sewer, and electric services from a submetering company sought judicial review of a decision of the Public Utilities Commission concluding that the Commission lacked jurisdiction.

The Supreme Court held that test used by Commission improperly deviated from the relevant statutory language, abrogating In re the Commission’s Investigation of Submetering in the State of Ohio, 2016 WL 11541704, and In re the Commission’s Investigation of Submetering in the State of Ohio, 2017 WL 4484334.

Modified version of a test applied by the Public Utilities Commission to determine whether it had jurisdiction over claims asserted by a customer against a company that provided submetering services, from which the customer purchased water, sewer, and electric services, improperly deviated from the statute describing the companies subject to the Commission’s jurisdiction; the test went beyond considerations of whether the utility-resale activities of the company were ancillary to another business, focusing on how much profit the reseller made and whether a consumer was charged more than she would have been under default-service-tariff rates, which was an inquiry that had nothing to do with the statutory language; abrogating In re the Commission’s Investigation of Submetering in the State of Ohio, 2016 WL 11541704, and In re the Commission’s Investigation of Submetering in the State of Ohio, 2017 WL 4484334.




MUNICIPAL CORPORATIONS - OHIO

City of Centerville v. Knab

Supreme Court of Ohio - November 12, 2020 - N.E.3d - 2020 WL 6605846 - 2020 -Ohio- 5219

Defendant was convicted in the Municipal Court of making a false report to law enforcement, arising out of incident in which defendant falsely reported active shooter situation to city police department.

Defendant appealed convictions and sentence, which included restitution order.

The Court of Appeals affirmed convictions but vacated restitution order. City appealed.

The Supreme Court held that a municipal corporation cannot be a “person” against whom a criminal offense or delinquent act is committed and thus does not qualify as a “victim” which could receive an award of restitution, under constitutional amendment expanding rights of crime victims, or Marsy’s Law.




EMINENT DOMAIN - VIRGINIA

Johnson v. City of Suffolk

Supreme Court of Virginia - December 10, 2020 - S.E.2d - 2020 WL 7251969

Lessees of oyster grounds brought inverse condemnation action against city and sanitation district, seeking declaratory judgment and alleging that discharges from a sewer system operated by city and district polluted the waters in which lessees raised their oysters.

The Circuit Court granted defendants’ demurrers. Lessees appealed.

The Supreme Court held that alleged discharge of pollutants by city and sanitation district did not affect a property interest of lessees and thus could not support an inverse condemnation claim.

Alleged discharge of pollutants by city and sanitation district did not affect a property interest of lessees of oyster grounds and thus could not support an inverse condemnation claim by lessees, who asserted that pollution of water had prevented lessees from properly harvesting oysters; discharge did not interfere with lessees’ rights to be on the leased lands, city and district did not remove or physically destroy the oysters, and nothing in leases conferred or presupposed a right to grow oysters in conditions free of pollution or guaranteed a lessee a commercially-viable oyster lease.




BONDS - CALIFORNIA

Davis v. Fresno Unified School District

Court of Appeal, Fifth District, California - November 24, 2020 - Cal.Rptr.3d - 2020 WL 6882737 - 20 Cal. Daily Op. Serv. 12,214 - 2020 Daily Journal D.A.R. 12,675

Taxpayer brought action against school district and contractor, alleging that contract for construction of a middle school violated competitive bidding requirements, rules governing conflicts of interest, and education statutes, among other claims.

The Superior Court sustained district’s and contractor’s demurrer and the Court of Appeal reversed in part. On remand, the Superior Court granted district’s and contractor’s motion for judgment on the pleadings. Taxpayer appealed.

The Court of Appeal held that:

Taxpayer’s action against school district and contractor, which challenged contracts for construction of a middle school, was a reverse validation action to determine validity of district’s decision combined with a taxpayer’s action to restrain or prevent an illegal expenditure of public money; even though complaint stated that action was brought as special in rem proceeding for judicial invalidation of contracts, complaint did not state it was “exclusively” or “only” brought as such a proceeding, and complaint’s prayer for relief requesting that contractor be ordered to pay back monies sought relief that was not available in validation action but was available in a taxpayer’s action.

Taxpayer did not abandon or forfeit portion of lawsuit that was brought as a taxpayer’s action to restrain or prevent an illegal expenditure of public money in school district’s construction of middle school, which was combined in lawsuit that also was reverse validation action to determine validity of district’s decision; taxpayer’s opposition to motion for judgment on pleadings asserted his taxpayer’s complaint was not moot, taxpayer used fact that complaint sought remedy not available in reverse validation action to distinguish cases, and taxpayer’s appellate brief requested remand to proceed with trial on in personam taxpayer claims.

Taxpayer’s reverse validation action, which sought declaration that district’s contracts with contractor in constructing middle school were invalid, was rendered moot after contracts were fully performed and no longer in effect; declaratory judgment as to the validity of completed contracts was not effectual relief.

Contracts for construction of middle school were not “contracts” to which validation statutes applied, and thus it was appropriate for taxpayer to challenge legality of contracts in a taxpayer’s action to restrain or prevent an illegal expenditure of public money; school district paid for construction as it was completed, making alternative lease-leaseback approach not a method of financing the construction, but rather a construction contract with no element of financing included, and terms of lease stated that district’s obligations could not be construed as debt or creating indebtedness.

The reference to “contracts” is construed narrowly in the statute that declares that the validation statutes apply to an action to determine the validity of a local agency’s contracts; only contracts involving financing and financial obligations fall within the statute.

In the context of a taxpayer’s action, the fact that the plaintiff could have enjoined the illegal expenditure does not prevent him seeking to recover on behalf of the local agency monies illegally expended.

 

 




PUBLIC UTILITIES - CALIFORNIA

Humphreville v. City of Los Angeles

Court of Appeal, Second District, Division 2, California - December 3, 2020 - Cal.Rptr.3d - 2020 WL 7065315 - 20 Cal. Daily Op. Serv. 12,480

City resident brought action against city, city’s Department of Water and Power, and city Board of Water and Power Commissioners, alleging that defendants’ annual practice of transferring surplus from city-owned utilities to city’s general fund constituted a “tax” that required voter approval.

The Superior Court sustained defendants’ demurrer without leave to amend. Resident appealed.

The Court of Appeal held that city’s practice of transferring surplus from city-owned utilities to city’s general fund did not constitute a “tax” requiring voter approval.

City’s alleged ongoing practice of transferring a surplus from city-owned utilities to city’s general fund, when rates charged to customers nevertheless did not exceed costs of providing electricity to them, did not constitute a “tax” that required voter approval; practice did not satisfy definition of a “tax” under plain language of the California Constitution, conclusion was one that best aligned with purpose behind Constitution’s restrictions on local taxation to stop local governments from extracting more revenue from taxpayers, and Supreme Court precedent strongly suggested that yearly transfers of surplus funds did not constitute a “tax” when they did not cause the utility rates to exceed costs of providing electricity.




LOAN GUARANTY - KANSAS

Farmers Bank & Trust v. Homestead Community Development

Court of Appeals of Kansas - October 2, 2020 - 476 P.3d 1

Bank brought action against city for breach of guaranty, fraud, and negligent misrepresentation, based on city’s failure to render payment to bank pursuant to their guaranty agreement after community development group defaulted on its loan.

The District Court granted summary judgment in favor of city. Bank appealed.

The Court of Appeals held that:

Issue of whether city had undesignated funds on hand in excess of the amount of guaranty which bank executed with city was irrelevant in determining whether the Cash-Basis Law and the Budget Law precluded city from paying the guaranty, for purposes of bank’s action for breach of guaranty, fraud, and negligent misrepresentation; the Cash-Basis Law precluded payment by city unless it had enough funds available in its treasury to do so and such funds had been designated to pay the guaranty, and the Budget Law, which had to be construed together with cash-basis statute, required city to appropriate funds for its expenditures.

City finance director’s deposition testimony that she did not reach out to prior city employees regarding guaranty which city executed with bank and was not involved in investigations regarding bank’s suit against city for payment did not warrant disregarding of director’s summary judgment affidavit averring that city never budgeted or appropriated any funds to pay guaranty, as to preclude city from paying the guaranty under the Cash-Basis Law and the Budget Law.

City’s payments to community development group did not ratify city’s guaranty with bank, which was void due to city’s failure to establish and maintain separate funds for payment of guaranty as required by the Cash-Basis Law and the Budget Law, and thus city was not obligated to pay the guaranty after group defaulted on its loan.

Bank, which contracted with city for a loan guaranty on behalf of community development group, was bound at its peril to check city’s budget and accounts to verify that city had appropriated necessary funds to pay the guaranty, and thus city’s failure to allocate such funds precluded city from having to pay the guaranty pursuant to the Cash-Basis Law and the Budget Law; financial institutions transacting business with municipalities in the state typically asked for annual budgets and audits to verify that municipalities had appropriated necessary funds to pay debt obligations but bank never asked for such verifications.

Fact that guaranty which city executed with bank for loan to community development group was contingent on group’s default was irrelevant in determining whether the guaranty was void pursuant to the Cash-Basis Law and the Budget Law, which together prohibited city from creating indebtedness without having funds on hand for that purpose.

City could not have amended its budget to appropriate funds each time it had to make a payment on guaranty executed with bank for a loan to community development group, and thus the guaranty was void on its face pursuant to the Cash-Basis Law and the Budget Law, which together prohibited city from creating an indebtedness without having funds on hand for that purpose; amendment would only have been allowed if guaranty had contained a stipulation that it was conditioned on future appropriations but guaranty had no such conditions.

Bank’s notice to city attorney of its fraud and negligent misrepresentation claims against city for failure to pay a loan guaranty did not constitute substantial compliance with statutory notice requirements for tort claims against municipalities, and thus the statute precluded bank’s claims; city did not designate city attorney to receive notice of tort claims, and, even if city had done so, it could not have waived statutory requirement of notice to the city clerk or city’s governing body.

Issue of whether city clerk or city’s governing body received all of the correspondence regarding city’s loan guaranty with bank was irrelevant in determining whether bank substantially complied with statutory notice requirements for its fraud and negligent misrepresentation claims against city; statute required that notice of claims be served on city clerk or city’s governing body but bank only served notice to city attorney.

No evidence supported bank’s claim that mayor, city clerk, or city attorney were motivated by a personal purpose in executing guaranty between city and bank for a loan to community development group, and thus these officials acted foreseeably within scope of employment even though they lacked express authority to execute guaranty, thereby obligating bank to comply with statutory notice requirements for its fraud and negligent misrepresentation claims against city under the Tort Claims Act.

The Court of Appeals was not obligated to consider bank’s argument that city employees could have been sued in their individual capacities under the Tort Claims Act for city’s alleged breach of loan guaranty agreement, even if said employees were acting within the scope of employment, where bank abandoned its argument by failing to cite any supporting authority, on appeal from grant of summary judgment in favor of city.




INSURANCE - GEORGIA

Atlantic Specialty Insurance Company v. City of College Park

Court of Appeals of Georgia - November 2, 2020 - S.E.2d - 2020 WL 6390041

Relatives of deceased persons brought action against municipality, alleging wrongful death after deceased persons’ vehicle was struck by unknown driver who was being pursued by police.

Insurer intervened for limited purpose of litigating limits of its insurance policy with municipality, and trial court held on insurer’s motion for partial summary judgment that insurance policy limits available were $5 million under business auto and excess liability coverage. Insurer appealed.

The Court of Appeals held that policy’s endorsements did not exempt insurer from statutory language that increased sovereign immunity waiver to amount of coverage.

Public policy prevented sovereign immunity endorsement in municipality’s insurance policy that included business auto and excess liability coverage from limiting $1 million for automobile liability coverage and $4 million for excess coverage to $700,000 for claimants who sustained injuries arising out of negligent use of government motor vehicle; insurer was required to pay damages under policy if defense of sovereign immunity was not applicable, and waiver of sovereign immunity, which occurred by operation of law, was limited to amount of coverage purchased by municipality as prescribed by statute.




ZONING & PLANNING - ILLINOIS

Sullivan v. Village of Glenview

Appellate Court of Illinois - November 4, 2020 - N.E.3d - 2020 IL App (1st) 200142 - 2020 WL 6483137

After commercial developer applied for permits to rezone and construct commercial buildings on property adjacent to homeowners’ properties, homeowners brought action against city, seeking declaratory judgment invalidating the municipal ordinance purportedly allowing the property to be rezoned.

The Circuit Court dismissed action as untimely. Homeowners appealed.

The Appellate Court held that:

To constitute a “decision” triggering the running of the limitations period for challenges to municipal zoning actions, a municipal ordinance must actually make some sort of change with respect to the zoning classification of the subject property.

Municipal ordinance did not effect zoning classification of landowner’s property, and, thus, was not a “decision” within meaning of municipal code, as was required to trigger running of 90-day limitations period applicable to challenges to municipal zoning actions; even though ordinance contemplated rezoning of property, ordinance conditionally required landowner to begin entirely new application process before property could actually be rezoned, thereby placing landowner in precisely same position as before ordinance was passed.




COMMUNITY IMPROVEMENT DISTRICT ASSESSMENTS - MISSOURI

Real Estate Recovery, LLC v. Branson Hills Facility Infrastructure Community Improvement District

Missouri Court of Appeals, Southern District, Division One - October 14, 2020 - S.W.3d - 2020 WL 6054606

Purchaser of land parcels at post-third-offering sale filed petition against community improvement district (CID) and others to quiet title to parcels. After purchaser failed to pay additional assessments levied by CID upon parcels, purchaser and CID filed cross-motions for summary judgment.

The Circuit Court initially denied motions, but upon parties’ joint request for reconsideration, granted summary judgment in favor of CID. Purchaser appealed.

The Court of Appeals held that:

Amendment to section of Community Improvement District Act (CID Act) governing special assessments was change in procedural rather than substantive law, and, thus, retrospective application of amendment did not violate constitutional prohibition on retrospective laws, where amendment merely dealt with mechanism and machinery by which delinquent CID assessments could be collected.

Provision of Jones-Munger Act stating that purchasers of property at post-third offering tax sales would receive collector’s deeds with “priority over all liens and encumbrances on the property sold except for real property taxes” did not mean that parcels bought by purchaser were no longer subject to community improvement district (CID) assessments; language of Community Improvement District Act (CID Act), which provided authority for sale at issue, indicated legislature did not intend to remove property from CID’s power and authority to levy and impose assessments when sold via Jones-Munger Act, and interpreting term “real property taxes” to exclude CID assessments would upend entire statutory framework for CID assessments, CID initiative financing, and removal of property from CIDs.




PUBLIC UTILITIES - NEW HAMPSHIRE

Northern New England Telephone Operations, LLC v. Town of Acworth

Supreme Court of New Hampshire - November 6, 2020 - A.3d - 2020 WL 6534452

Telecommunications company brought actions against several towns and cities, alleging claims of ultra vires taxation and disproportionate taxation arising out of company’s use of municipal rights-of-way for poles, conduits, and other equipment.

After consolidation of cases into a “test case” structure, the Superior Court granted summary judgment for company on most of its claims of ultra vires taxation, and, following trial, entered judgment for company on its tax abatement claims. Towns appealed.

The Supreme Court held that:

Licenses to place telecommunications equipment in public rights-of-way arising pursuant to statute providing that certain poles, structures, conduits, and related property in a location which becomes a public highway shall “be deemed legally licensed” must, as a matter of law, include requirement to pay personal and real estate taxes, as, without such tax payment requirements, licenses would not be legal.

Purpose of statute providing that telecommunications poles, cables, and other equipment approved by a local land use board shall be deemed legally permitted or licensed if the location of the equipment becomes a public highway is to place the utility in the same position it would have been had it applied for a license, without the need for further proceedings.

Nature of telecommunications company’s use or occupation of municipal rights-of-way as an owner of telephone poles, conduits, and related property did not constitute a perpetual lease as a matter of law which gave rise to an independently taxable property interest, but rather was pursuant to a license or permit.

Trial court’s decisions to credit various opinions of telecommunications company’s expert as to value of company’s poles and conduits, and on company’s use or occupation of municipal rights-of-way, and to reject those of towns’ expert were reasonable based upon the evidence presented at trial on company’s tax abatement claim; court did not accept company’s expert’s valuations carte blanche, but engaged in a mindful evaluation of her opinions, even rejecting some.

Telecommunications company’s guy wires and anchors were not taxable as “structures” under statute providing for real estate taxes for “structures, poles, towers, and conduits employed in the transmission of telecommunication” services; as licensing statute for erecting or installing structures in public highways authorized a licensee “to place upon such poles and structures the necessary and proper guys, cross-arms, fixtures, transformers and other attachments and appurtenances,” the guy wires and anchors could not be considered “structures,” but rather were items placed upon the structures.




EMINENT DOMAIN - OHIO

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

Supreme Court of Ohio - December 2, 2020 - N.E.3d - 2020 WL 7213816 - 2020 -Ohio- 5482

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.

On reconsideration, the Supreme Court held that:

Saltwater injection well operator’s failure to submit third restart plan did not render its takings claim, arising from state’s suspension of operation of one of its wells due to potential seismicity problem, unripe for judicial resolution; state suggested that if operator submitted plan that met its standards, then operator would be able to restart operations, but operator had twice tried, and failed, to persuade state to allow it to restart operations at the well, and there was no indication state’s standards, if met, would be binding on state, as it could change the standards at any time and create another opportunity to say all that operator had to do was submit another plan.

State’s suspension of saltwater injection well for potential seismicity problem could not be characterized as temporary, for purposes of determining analysis of total or partial taking applied in assessing well operator’s takings claim arising from state’s suspension of operation of one of its wells, where suspension would remain in effect unless and until Department of Natural Resources’ Division of Oil and Gas Resources Management decided that operations at the well could be restarted.

Genuine issue of material fact as to whether state’s suspension of operations of second of two saltwater injection wells due to potential seismicity problems deprived operator of all economically beneficial use of its leasehold precluded summary judgment determination that state effected a total regulatory taking of operator’s property.

State waived its nuisance defense to saltwater injection well operator’s total takings claim, arising from state’s suspensions of operations at one of two wells due to potential seismicity problems, for purposes of summary judgment and appeal of that judgment, where, even though its amended answer to the complaint clearly set forth the defense, state supplied no argument regarding whether relevant case law, applied to the facts of the case, justified decision in its favor.

Genuine issue of material fact as to value of operator’s investment in the leasehold after state suspended operation on one of operator’s two saltwater injection wells due to potential seismicity problem precluded summary judgment determination on economic-impact factor of test for determining whether state’s regulation effected a partial taking.

Genuine issues of material fact existed as to whether operator was aware of the potential seismicity problem with its saltwater injection wells and whether operator could have anticipated that state would waver between case-by-case approach and statewide approach to addressing induced seismicity while rebuffing operator’s attempt to meet state’s regulatory expectations precluded summary judgment on reasonable investment-backed expectations factor for determining whether state’s suspension of one of operator’s two wells effected a partial taking.

Character of state’s suspension of operations at one of two saltwater injection wells was to protect the public’s health and safety, weighing against finding that the regulation was a temporary, partial taking of well operator’s property, where state did not single out the well for unfair treatment, as well’s injection volumes contributed to seismicity in the surrounding area and differed geologically, and was closer in proximity to densely populated areas, than the other well, well’s operations posed imminent threat to public safety, and there was no showing that there was extraordinary delay in decisionmaking process with respect to operator’s restart plan for the well.




PUBLIC UTILITIES - TEXAS

AEP Texas Central Company v. Arredondo

Supreme Court of Texas - November 20, 2020 - S.W.3d - 2020 WL 6811465 - 64 Tex. Sup. Ct. J. 165

Landowner brought negligence action against electric utility, utility’s independent contractor, and utility’s inspector arising from landowner’s fall in hole that allegedly was created by contractor’s removal of utility stub pole from municipal right-of-way on edge of landowner’s property.

The District Court granted summary judgment for defendants. The San Antonio Court of Appeals affirmed in part, reversed in part, and remanded. Utility and contractor filed petitions for review, which were granted.

The Supreme Court held that:




COUNTIES - WASHINGTON

Perillo Trustees of the Diane Perillo Living Trust, dated September 28, 2011 v. Island County

Court of Appeals of Washington, Division 1 - November 30, 2020 - P.3d - 2020 WL 7021689

Purchasers, who learned that house they bought had history as a “drug house” and had to be demolished due to methamphetamine contamination, brought negligence action against county for failure to inspect the property for hazardous chemical contamination. The Superior Court granted summary judgment for county under the public duty doctrine, and purchasers appealed.

The Court of Appeals held that:




BALLOT INITIATIVE - ARIZONA

Molera v. Hobbs

Supreme Court of Arizona - October 26, 2020 - 250 Ariz. 1330 Arizona Cases Digest 6 - 474 P.3d 667

Opponents of initiative to increase educational funding brought action against Secretary of State and sponsor of initiative to enjoin Secretary from placing initiative on ballot for general election, alleging that 100-word description on petition sheets violated statute governing petition sheets and that petition circulators were paid in violation of statute governing signature collection.

Following a bench trial, the Superior Court rejected signature-based objection, found that description on petition sheets violated applicable statute, and enjoined Secretary from certifying and placing initiative on ballot. Secretary and sponsor appealed, and opponents cross-appealed.

The Supreme Court held that:




PUBLIC UTILITIES - CALIFORNIA

Communities for a Better Environment v. Energy Resources Conservation and Development Commission

Court of Appeal, First District, Division 4, California - November 20, 2020 - Cal.Rptr.3d - 2020 WL 6817480 - 20 Cal. Daily Op. Serv. 12,071 - 2020 Daily Journal D.A.R. 12,486

Nonprofit environmental groups brought action against Energy Resources Conservation and Development Commission for declaratory and injunctive relief, challenging the constitutionality of a statute that limited judicial review of Commission’s decisions on the siting of thermal powerplants.

The Superior Court sustained Commission’s demurrer, but that judgment was reversed on appeal. Later, the Superior Court granted groups’ motion for summary judgment. Commission appealed.

The Court of Appeal held that:

Statute that bars superior courts and courts of appeal from reviewing Energy Resources Conservation and Development Commission decisions on siting of thermal powerplants is in direct conflict with the state constitutional provision granting these courts original jurisdiction.

State constitutional provision that gives the Legislature the power to establish the manner and scope of review of Public Utilities Commission (PUC) action in a court of record does not authorize the statute that bars superior courts and courts of appeal from reviewing Energy Resources Conservation and Development Commission decisions on the siting of thermal powerplants, and thus the statute is unconstitutional in light of the state constitutional provision granting these courts original jurisdiction.

Statute that mandates that Energy Resources Conservation and Development Commission findings and conclusions on questions of fact regarding siting of thermal powerplants are final and are not subject to judicial review is an unconstitutional seizure of judicial power.




PUBLIC EMPLOYMENT - LOUISIANA

State v. Alexander

Court of Appeal of Louisiana, Second Circuit - November 18, 2020 - So.3d - 2020 WL 6750116 - 53,449 (La.App. 2 Cir. 11/18/20)

Following a bench trial, defendant was convicted in the District Court of two counts of abuse of office, and sentenced to four years at hard labor, with all but one year suspended, on each count, to be served concurrently. Defendant appealed.

The Court of Appeal held that:

There was no evidence that dismissal of defendant’s possession of marijuana charge was obtained, directly or indirectly, by a knowing and intentional use by defendant of his authority as mayor of neighboring small town, and thus insufficient evidence supported abuse of office conviction; police chief was adamant in her testimony that the decision to dismiss the charge was made in the exercise of her discretion as an officer, not because of anything defendant said or did.

Sufficient evidence supported conviction for abuse of office; town clerk testified that defendant, the town’s mayor, told him to write defendant a $500 check for a trip to visit his sister out of state, which clerk stated he did to avoid verbal abuse from defendant, and although defendant disputed that the $500 check written to him from town was for personal travel, his explanation for the purpose of the check was inconsistent.




IMMUNITY - NEW YORK

Castillo v. New York City Transit Authority

Supreme Court, Appellate Division, First Department, New York - November 12, 2020 - N.Y.S.3d - 188 A.D.3d 484 - 2020 WL 6600656 - 2020 N.Y. Slip Op. 06447

Passenger on city bus brought personal injury action against city transit authority claiming that due to bus driver’s negligence the bus stopped short causing passenger to fall into fare box.

The Supreme Court granted city’s motion for summary judgment and dismissed passenger’s complaint. Passenger appealed.

The Supreme Court, Appellate Division held that emergency doctrine excused transit authority from liability for alleged negligence of bus driver resulting in passenger’s tripping and falling.

No evidence indicated that emergency created by car moving into bus’s lane of travel was created by bus driver, or responded to by bus driver in unreasonable manner, and thus, emergency doctrine excused city transportation authority from liability for alleged negligence of bus driver resulting in passenger’s tripping and allegedly sustaining injury; transit authority submitted bus driver’s sworn testimony, written immediately after the incident, that he was obliged to brake because of actions of car suddenly entering into his lane, and passenger offered no evidence, other than speculation, challenging bus driver’s account, and passenger conceded he did not see what happened outside the bus because he was looking to find a seat.




PUBLIC UTILITIES - OHIO

In re Complaint of Suburban Natural Gas Company v. Columbia Gas of Ohio, Inc.

Supreme Court of Ohio - November 12, 2020 - N.E.3d - 2020 WL 6600063 - 2020 -Ohio- 5221

Natural-gas company sought judicial review of a decision of the Public Utilities Commission, finding that the company failed to prove allegations arising from a competitor’s use of energy-efficiency incentives for home builders in areas served by company and from the competitor’s expansion of its gas-distribution service.

The Supreme Court held that:

Supreme Court lacked jurisdiction over natural-gas company’s claim that the Public Utilities Commission failed to apply the express terms of a stipulated agreement with a competitor by ignoring the competitor’s release and covenant not to sue, which purportedly prohibited competitor from instituting energy-efficiency incentives for home builders in areas served by company, where company did not argue on rehearing that the Commission should have applied the language of competitor’s release instead of distributor’s, but instead company alleged that the Commission erred when it applied the language of company’s release to claims company did not make.

Public Utilities Commission sufficiently explained its order rejecting natural-gas company’s claim that a competitor violated a stipulated agreement between them by offering energy-efficiency incentives to home builders to compete in areas served by company; the Commission reviewed the pertinent language of the agreement, and, because the agreement was unambiguous, the Commission was not required to consider other evidence to refute company’s interpretation of the agreement.

Natural-gas company failed to show error in Public Utilities Commission’s determination that a competitor’s tariff schedules were sufficiently detailed to authorize payment of incentives to builders for construction of homes that exceeded certain energy-efficiency standards, where company did not cite the applicable tariff or point to language, or lack thereof, in the tariff that would support its claim.

Public Utilities Commission did not erroneously conclude that it lacked authority to preclude the duplication of utility facilities, in a proceeding brought by a natural-gas company, challenging a competitor’s extension of its gas-distribution service based on a purported duplication of facilities in an area served by company; the Commission merely held that company failed to cite caselaw for the proposition that the Commission had to preclude a natural-gas company from serving new customers if that service would result in duplication of facilities.

Public Utilities Commission adequately explained its decision not to rely on precedent offered by natural-gas company in challenging a competitor’s extension of its gas-distribution service based on a purported duplication of facilities in an area served by company; Commission explained that the cases cited by company were inapplicable because they did not involve a natural-gas company being precluded from serving a new customer if such service would result in duplication of facilities, Commission cited longstanding precedent establishing that natural-gas companies were not bound by certified service territories and could serve any customer in any part of the state, and Commission reiterated in its second rehearing entry that the cases cited by company were factually and legally dissimilar, if not wholly irrelevant.

Record supported Public Utilities Commission’s decision rejecting a claim by a natural-gas company, challenging a competitor’s extension of its gas-distribution service based on a purported duplication of facilities in an area served by company; county’s chief deputy engineer testified that he knew of no unnecessary duplication of natural-gas facilities in the county, even with the recent extension of competitor’s distribution main, engineer’s testimony that he did not specifically consider whether competitor’s distribution main duplicated company’s main was not affirmative evidence that competitor duplicated company’s facilities on a particular road, and company’s vice president of system development admitted that a particular home builder was under no legal obligation to select company to serve a home development.

Natural-gas company failed to show error in Public Utilities Commission’s decision rejecting company’s challenge to a competitor’s extension of its gas-distribution service based on a purported duplication of facilities in an area served by company; contrary to company’s claims regarding waste of resources, testimony established that some duplication might be inherent and even necessary, evidence showed that a subdivision to be served by competitor was still under development and that no gas company was providing distribution service to the subdivision when competitor extended its gas main, and a county chief deputy engineer’s testimony about potential for increased costs to customers concerned the concept of unnecessary duplicate facilities in general, not the merits of company’s complaint.

Supreme Court lacked jurisdiction over natural-gas company’s contention that a competitor improperly extended energy-efficiency incentives to home builders outside its service territory; company did not seek rehearing of Commission’s determination that a particular subdivision to be served by competitor was outside of competitor’s service territory, company did not argue on rehearing that competitor’s builder incentives were limited to customers already served by competitor, and company’s rehearing application did not mention a statute setting forth a policy of promoting alignment of natural-gas-company and consumer interests in energy efficiency and conservation.

Public Utilities Commission did not ignore evidence that natural-gas company’s competitor told a subdivision’s developer about energy-efficiency incentives and that the incentives gave competitor an advantage over company, in rejecting company’s claim that competitor implemented the incentives in an unfair and anticompetitive manner; Commission found that competitor was authorized to offer incentives to encourage developers to choose competitor and that competitor had an advantage over company as a result of the incentives, but instead the Commission rejected company’s claim that the advantage violated a statute forbidding a public utility from subjecting a corporation to undue or unreasonable prejudice or disadvantage, as company could have requested its own energy-efficiency program.

Supreme Court lacked jurisdiction over natural-gas company’s contention that the Public Utilities Commission failed to explain its purported departure from its precedent in finding that a competitor did not use energy-efficiency incentives as a competitive-response tool at home development, where the company failed to raise the argument on rehearing before the Commission.

Natural-gas company failed to show reversible error in Public Utilities Commission’s determination that company should have intervened in a prior case brought by a competitor to raise concerns about competitor’s purported unfair and anticompetitive use of energy-efficiency incentives, in company’s subsequent proceeding challenging competitor’s use of the incentives; Commission did not find that company forfeited any arguments by failing to intervene, but instead the Commission’s order addressed and found no merit to company’s claims that competitor used the incentives in an abusive or anticompetitive manner.

Supreme Court lacked jurisdiction to consider natural-gas company’s claim challenging the Public Utilities Commission’s determination that company raised for the first time on rehearing its issue regarding a competitor’s purportedly unfair and anticompetitive use of energy-efficiency incentives, where the company never filed a subsequent application for rehearing and, thus, never alleged error in the Commission’s finding.

Natural-gas company failed to show error in Public Utilities Commission’s summary dismissal of company’s allegations of various statutory violations on the part of a competitor based on the competitor’s implementation of energy-efficiency incentives; the Commission’s order noted the company’s argument that the same proofs purportedly supporting company’s other counts, including that the incentives violated a stipulated agreement and that they were used in an unfair and anticompetitive manner, would support the statutory violations, but the Commission rejected the other counts, and company failed to identify an independent legal theory or evidence to support its claim that the statutory violations stood on their own.




PUBLIC PENSIONS - OKLAHOMA

Harrison v. Oklahoma Police Pension and Retirement System

Supreme Court of Oklahoma - November 24, 2020 - P.3d - 2020 WL 6886498 - 2020 OK 91

Retired police officer sought judicial review of order of Oklahoma Police Pension and Retirement System (OPPRS) stating that officer forfeited retirement benefits because officer was convicted of felony committed while in line of duty.

The District Court affirmed. Officer appealed. The Court of Civil Appeals affirmed. Officer petitioned for writ of certiorari.

The Supreme Court held that officer had retirement benefit that was a vested benefit within meaning of statute requiring forfeiture of retirement benefits as result of felony conviction, and thus retirement benefit was not subject to forfeiture.

City police officer had retirement benefit that was a “vested benefit” within meaning of statute requiring forfeiture of retirement benefits from a public retirement system when municipal employee was convicted of felony for crime related to duties of employment when statute became effective, and thus retirement benefit was not subject to forfeiture under statute when officer was convicted, following retirement, of felony committed while in line of duty; officer had 16 years of credited service when statute was enacted and therefore had enough years of service to elect vested benefit.




PUBLIC UTILITIES - CALIFORNIA

State Lands Commission v. Plains Pipeline, L.P.

Court of Appeal, Second District, Division 6, California - November 19, 2020 - Cal.Rptr.3d - 2020 WL 6791510 - 20 Cal. Daily Op. Serv. 11,871 - 2020 Daily Journal D.A.R. 12,329

California State Lands Commission and insurer brought action against owner of ruptured pipeline, claiming that when owner’s negligent maintenance of pipeline resulted in disrupting the flow of oil, it also disrupted the payment of royalty income to the Commission, and caused damage to improvements on the Commission’s land.

The Superior Court sustained pipeline owner’s demurrer without leave to amend, and Commission and insurer appealed.

The Court of Appeal held that:

Even assuming it was a public utility, oil pipeline owner was not entitled to immunity from liability for its negligence which resulted in pipeline rupture; pipeline owner did not deliver essential municipal services to members of the general public, but rather its task was to transport oil to a private entity for commercial purposes, and its rates were set by Federal Energy Regulatory Commission (FERC) and did not include compensation for liability.

California State Lands Commission sufficiently alleged damage to property to preclude application of economic loss rule to negligence claim against owner of oil pipeline which ruptured and leaked oil, where Commission alleged that it had succeeded to oil and gas well owner’s property such that the damage from the inability to transport oil continued, and it was required to spend substantial amounts for repairs and maintenance to keep the oil and gas well property in a safe condition.

Special relationship existed between California State Lands Commission and owner of ruptured oil pipeline which allowed Commission to recover purely economic damages stemming from owner’s negligent maintenance of the pipeline; purpose of the pipeline was to transport oil taken from the Commission’s land so that the Commission, among others, could make a profit, it was entirely foreseeable that Commission would lose royalties if the pipeline failed, there was a high degree of certainty that Commission was injured, there was an immediate and direct connection between owner’s conduct and the Commission’s injury, owner’s conduct was both negligent and criminal, and damages would encourage pipeline operators to avoid future harm, including immense environmental damage caused by oil spills.




PUBLIC UTILITIES - CALIFORNIA

Mahon v. City of San Diego

Court of Appeal, Fourth District, Division 1, California - November 20, 2020 - Cal.Rptr.3d - 2020 WL 6817061 - 20 Cal. Daily Op. Serv. 12,107

Electric utility customers brought class action against city challenging undergrounding surcharge, collected by utility from customers pursuant to franchise agreement with city, as an illegal tax obtained without voter approval under Right to Vote on Taxes Act.

The Superior Court granted summary judgment for city. Customers appealed.

The Court of Appeal held that surcharge was valid franchise fee rather than a tax subject to voter approval.

Undergrounding surcharge that electric utility collected pursuant to franchise agreement with city from its customers with electric utility service within city’s boundaries was valid franchise fee rather than a tax subject to voter approval under Right to Vote on Taxes Act; surcharge was compensation validly given in exchange for franchise rights.

City’s failure to deposit revenues from undergrounding surcharge collected by electric utility from its customers pursuant to franchise agreement with city into city’s environmental growth fund did not demonstrate that surcharge was a tax subject to voter approval under Right to Vote on Taxes Act rather than a valid franchise fee; city charter provision establishing environmental growth fund did not serve same object as did test for franchise compensation, and any error in not depositing surcharge revenue into fund might well have resulted from inadvertence, negligence, or even malfeasance that was entirely distinct and unrelated to city’s determination of whether surcharge constituted a charge for franchise rights.

City was not required to present a valuation analysis of franchise rights in order establish that the amount of undergrounding surcharge that electric utility collected from its customers pursuant to franchise agreement with city bore a reasonable relationship to value of franchise rights, to show that surcharge was a valid franchise fee rather than a tax subject to voter approval under Right to Vote on Taxes Act; city could establish value of franchise through bona fide negotiations surrounding the franchise.




EMINENT DOMAIN - ILLINOIS

Tzakis v. Maine Township

Supreme Court of Illinois - November 19, 2020 - N.E.3d - 2020 IL 125017 - 2020 WL 6788163

Landowners whose property flooded brought action against township, city, and water-reclamation district for negligence, negligent nuisance, negligent trespass, statutory duty to maintain property, duty to remedy dangerous plan, and taking of real and personal property.

The Circuit Court granted township’s, city’s, and district’s motions to dismiss based on the public duty rule, and reinstated the dismissal after reconsideration based on the Supreme Court’s subsequent abolition of the public duty rule. Landowners appealed. The Appellate Court affirmed in part and reversed in part. Township, city, and district’s petition for leave to appeal was allowed.

The Supreme Court held that:

Supreme Court case that abolished common-law public duty rule, Coleman v. East Joliet Fire Protection District, 46 N.E.3d 741, did not apply retroactively, and thus public duty rule applied to landowners’ complaint against local public entities regarding property flooding; case established new principle of law by overturning decades of existing precedent, judgment would have been final and appealable well prior to Supreme Court’s case if public entities had obtained dismissal when they first raised issue, and public entities relied upon public duty rule throughout 11-year course of litigation that related to actions going back 60 years, during which time public duty rule existed.

Public duty rule, despite being abolished prospectively, applied to bar landowners’ negligence-based and duty-based claims against township, city, and water-reclamation district arising out of flooding allegedly caused by municipal stormwater system; to the extent that landowners alleged that township, city, and district failed to provide adequate public services in design, maintenance, improvement, or operation of the stormwater system, that duty ran to public at large and not to individual members of public such as landowners.

Landowners failed to allege that water flowing onto their property causing flood damage was the intended or foreseeable result of authorized government actions by township, city, or water-reclamation district, as required for a viable takings claim; landowners merely alleged that township, city, and district had caused properties to become partially or totally uninhabitable by their actions or inactions.




IMMUNITY - KENTUCKY

Upper Pond Creek Volunteer Fire Department, Inc. v. Kinser

Supreme Court of Kentucky - November 12, 2020 - S.W.3d - 2020 WL 6735854

Motorist who had been rescued by members of volunteer fire department from beneath the vehicle under which he was pinned, but who allegedly sustained significant injuries as result of firefighters’ actions, brought cause of action to recover from fire department for its alleged failure to properly train or supervise and negligent hiring.

Fire department filed motion to dismiss on government immunity grounds, and the Circuit Court denied motion, and appeal was taken. The Court of Appeals dismissed appeal, and discretionary review was granted.

The Supreme Court held that circuit court order denying volunteer fire department’s motion to dismiss, on governmental immunity grounds, the negligent failure to train or supervise and negligent hiring claims against it was not immediately appealable.

Circuit court order denying volunteer fire department’s motion to dismiss, on governmental immunity grounds, the negligent failure to train or supervise and negligent hiring claims against it by individual who had sustained significant injuries due to volunteer firefighters’ alleged lack of care in extricating him from beneath vehicle under which he was pinned, but without resolving question of whether fire department’s training, supervising, and hiring were governmental functions, for which it was entitled to immunity, pending further discovery on issue, was in nature of interlocutory order that was not immediately appealable.




EMINENT DOMAIN - NEW HAMPSHIRE

State v. Beattie

Supreme Court of New Hampshire - November 19, 2020 - A.3d - 2020 WL 6788764

Landowners appealed from decision of the Superior Court, dismissing, with prejudice, their preliminary objection challenging the State’s taking of 0.93 acres of their land in fee simple, as well as permanent and temporary easements.

The Supreme Court held that:




EMINENT DOMAIN - NORTH DAKOTA

Montana-Dakota Utilities Co. v. Behm

Supreme Court of North Dakota - November 19, 2020 - N.W.2d - 2020 WL 6791506 - 2020 ND 234

Condemnor, a utility company, brought an eminent domain action against landowner to acquire an easement across landowner’s property for a 3,000-foot natural gas pipeline to service a railroad switch which was required to be heated to keep it operable during winter months.

District Court dismissed action. Parties cross-appealed, and the Supreme Court reversed and remanded for a trial on eminent domain damages. Landowner petitioned the United States Supreme Court for writ of certiorari, which was denied. On remand, the parties stipulated to the valuation of the easement, and the district court adopted the stipulation and awarded landowner attorney’s fees and costs. Landowner appealed.

The Supreme Court held that:

Law of the case doctrine and the mandate rule precluded consideration of landowner’s various arguments about the constitutionality of eminent domain proceedings, where the issue of the necessity of the taking and whether the taking was for a public use were previously tried and appealed, case was remanded by Supreme Court for a trial on damages, and arguments about the constitutionality of the eminent domain proceedings and whether a jury should have determined certain issues could have been raised in the district court before the prior appeal and to the Supreme Court in the first appeal.




MUNICIPAL ORDINANCE - OHIO

State ex rel. Ohio Patrolmen's Benevolent Association v. Warren

Supreme Court of Ohio - November 25, 2020 - N.E.3d - 2020 WL 6930025 - 2020 -Ohio- 5372

City police officers filed petition for writ of mandamus seeking to compel city to promote officers, or allow them to sit for competitive promotional examination, pursuant to state civil-service law to positions city asserted were abolished by attrition under ordinance.

The Eleventh District Court of Appeals denied officers’ motion for partial summary judgment, granted city’s motion for judgment on the pleadings, and dismissed the petition. Officers appealed, and city filed motion for oral argument.

The Supreme Court held that:

City was not entitled to oral argument, in police officers’ appeal of determination in mandamus action that abolishment of senior positions in police department to which officers sought promotion did not violate state civil-service law, though city asserted that oral argument might be helpful to Supreme Court in making its decision and would allow the Court to ask questions of counsel on any aspect of the case, where city failed to indicate that case involved matter of great public importance, complex issues of law or fact, substantial constitutional issue, or conflict among the Courts of Appeals.

A city council, without violating the civil-service statutes governing promotion of police officers and removals, reappointments, and demotions in police departments, is authorized to enact an ordinance to reduce a police force by prospectively canceling the legal authorization for certain positions upon the retirement of the incumbents.




PUBLIC PENSIONS - OHIO

Sherman v. Ohio Public Employees Retirement System

Supreme Court of Ohio - October 22, 2020 - N.E.3d - 2020 WL 6163923 - 2020 Employee Benefits Cas. 408,701 - 2020 -Ohio- 4960

Public employment retiree who returned to public employment brought action against Ohio Public Employees Retirement System (OPERS), alleging a violation of Ohio’s Equal Protection Clause based on OPERS’s practice of reducing health insurance subsidies for retirees reemployed in OPERS-covered positions, while not reducing the subsidy for retirees reemployed in non-OPERS-covered positions.

The Court of Common Pleas granted OPERS’s motion to dismiss for failure to state a claim upon which relief could be granted. Retiree appealed. The Court of Appeals reversed and remanded. OPERS appealed.

The Supreme Court held that:

Rational-basis test applied to determination of whether a public employment retiree, who was reemployed by a public employer within the Ohio Public Employees Retirement System (OPERS) network, stated a claim against OPERS for violation of Ohio’s Equal Protection Clause based on its practice of reducing health insurance subsidies for retirees reemployed in OPERS-covered positions, while not reducing the subsidy for retirees reemployed in non-OPERS-covered positions.

Allegations of former state employee, who received a health insurance subsidy from the Ohio Public Employees Retirement System (OPERS) in connection with his OPERS pension, and whose subsidy was reduced after he was reemployed by a public employer within the OPERS network, that it was administratively feasible to require OPERS retirees reemployed in non-OPERS-covered positions to send a form notifying OPERS of a retiree’s reemployment, as was required for retirees reemployed in OPERS-covered positions, and that OPERS regularly requested information from OPERS retirees, were sufficient to negate OPERS’s proffered justification for not reducing health insurance subsidies of retirees reemployed in non-OPERS-covered positions, namely, the cost of identifying all reemployed retirees, and thus retiree stated a claim for violation of Ohio’s Equal Protection Clause.

Additional costs incurred by the Ohio Public Employees Retirement System (OPERS) when its retirees were reemployed in OPERS-covered positions that allegedly were not incurred when its retirees were reemployed in non-OPERS-covered positions did not provide a sufficient rational basis to require dismissal of state retiree’s claim for violation of Ohio’s Equal Protection Clause based on OPERS’s practice of reducing health insurance subsidies for retirees reemployed in OPERS-covered positions, while not reducing the subsidy for retirees reemployed in non-OPERS-covered positions; if an employer in the OPERS network did not hire an OPERS retiree, the position would still need to be filled, but it was unclear whether the costs OPERS incurred administering an employee’s pension equaled or exceeded the costs OPERS incurred administering a retiree’s contributions.




LABOR - WASHINGTON

Lincoln County v. Public Employment Relations Commission

Court of Appeals of Washington, Division 3 - November 3, 2020 - 475 P.3d 252

County and workers’ union both appealed from Public Employment Relations Commission (PERC) decision which found both parties to have committed unfair labor practices (ULP).

The Superior Court affirmed the PERC, and both parties appealed.

The Court of Appeals held that:




SCHOOL IMPACT FEES - CALIFORNIA

AMCAL Chico LLC v. Chico Unified School District

Court of Appeal, Third District, California - November 5, 2020 - Cal.Rptr.3d - 2020 WL 6498638 - 20 Cal. Daily Op. Serv. 11,591 - 2020 Daily Journal D.A.R. 12,009

Developer of private dormitory for students at state university within school district boundaries brought action for refund of school impact fees imposed by school district.

The Superior Court granted school district’s motion for summary judgment, and developer appealed.

The Court of Appeal held that district was not required to determine whether dormitory would generate new students for school district in order to justify fee.

School district was not required to determine whether private residential dormitory for state university students would generate new students for school district in order to justify imposition of school impact fee based on study analyzing all new residential construction.

A school district need not make an individualized determination for each particular development project before imposing school impact fee; instead, the school district must make findings based on the general type of construction, such as residential construction.

School impact fee imposed on new private residential dormitory for state university students, which was based on general study of new residential development and impact on school facilities, was reasonable and complied with the Mitigation Fee Act, and thus was not an invalid special tax.

School impact fee imposed on new private residential dormitory for state university students was not a taking without payment of just compensation, as fee complied with the Mitigation Fee Act.

Developer fees generally do not constitute a taking if the fee is reasonably related to the impacts of the type of new residential development on the school district’s school facilities and meet the requirements of the Mitigation Fee Act.




PREEMPTION - GEORGIA

Faulkner v. Crumbley

Court of Appeals of Georgia - November 2, 2020 - S.E.2d - 2020 WL 6389973

Driver and her passenger, who were injured when their vehicle struck a cow standing in the roadway, brought negligence action against cow’s owners. The Superior Court denied cow owners’ motion for summary judgment, and they appealed.

The Court of Appeals held that:




EMINENT DOMAIN - NEBRASKA

Douglas County School District No. 10 v. Tribedo, LLC

Supreme Court of Nebraska - November 6, 2020 - N.W.2d - 307 Neb. 716 - 2020 WL 6533474

Landowner sought review of board of appraisers’ award of $2.6 million for school district’s condemnation of approximately 43 acres of landowner’s 74-acre tract, which landowner planned to develop into a mixed-use development, for a new high school site.

The District Court entered judgment upon jury verdict awarding landowner $4.6 million in just compensation. School district appealed.

The Supreme Court held that:

Trial court acted within its discretion in admitting expert testimony of developer’s real estate appraisers regarding diminution of market value to developer’s remaining property following the taking of portion of its 74-acre tract for new high school site, where experts detailed numerous elements that influenced their valuations, including dirt fill and leveling costs, and both appraisers testified that their references to damages related to a reduction in fair market value.

Any error in trial court’s refusal to give condemnor’s proposed jury instruction relating to remaining property following the taking, which stated that the “costs to cure” could be considered only if they had an impact on fair market of remaining property, did not prejudice condemnor, even though instruction was a correct statement of law, where substance of proposed instruction was consistent with instructions the court gave on measure of damages to remaining property.

Sufficient evidence supported jury’s total award of $4,625,967 as compensation for both the taken property and diminution to fair market value of the remainder, for the condemnation of approximately 43 acres of a 74-acre tract that condemnee planned to develop into a mixed-use development instead of new high school site that was the reason for the taking, where condemnee’s first real estate appraiser valued total compensation at $5,890,000, condemnee’s second appraiser valued total damages at $7,022,000, and condemnor’s real estate appraiser valued total damages at $2,601,600.

Trial court acted within its discretion in awarding condemnee $590,924.89 in attorney fees in condemnation proceeding resulting in judgment of $4,625,967 for condemnee, where condemnee offered affidavits of three members of State Bar who testified that they reviewed fees charged by condemnee’s attorneys, that they received a detailed summary of work provided by counsel, and that they found requested fees to be reasonable, and court provided detailed explanation for fee award, including an acknowledgment that judgment exceeded condemnation award by more than 75%, that judgment was believed to be one of largest jury awards in a condemnation matter in a reported decision in state, that litigation was fairly complex, and that litigation persisted for over two and one-half years.




INCORPORATION - SOUTH DAKOTA

State through Attorney General v. Buffalo Chip

Supreme Court of South Dakota - November 10, 2020 - N.W.2d - 2020 WL 6601926 - 2020 S.D. 63

State filed a petition for, or in the nature of, a writ of quo warranto seeking a judgment declaring that campground did not lawfully incorporate as a municipality, after the Supreme Court concluded that county residents and neighboring city lacked standing to challenge the incorporation.

The Circuit Court granted State’s motion for summary judgment. Campground appealed.

The Supreme Court held that:

Statute that barred suits seeking to annul the existence of a municipality that had actually incorporated did not apply to State’s petition for writ of quo warranto that sought judgment declaring that campground did not lawfully incorporate as a municipality; State did not allege that campground abused its powers or surrendered its charter as legally existing corporation, but rather State sought to prevent campground from further acting as municipal corporation because it did not lawfully incorporate in the first instance.

State was not barred by doctrines of laches, estoppel, and waiver from bringing petition for writ of quo warranto that sought judgment declaring that campground did not lawfully incorporate as a municipality, despite contention that State would have known from census that campground did not have requisite 100 residents when it sought to incorporate and State should have challenged its existence then; no statute required State to institute action prior to a municipality’s purported incorporation, and Secretary of State’s filing of certified copy of canvas of votes in favor of incorporation was ministerial act that could not operate as waiver.

A municipality is prohibited from incorporating if it contains less than 100 residents or if it contains less than 30 voters; under either scenario, a municipality is not allowed to incorporate.




EMINENT DOMAIN - UTAH

Salt Lake City Corporation v. Kunz

Court of Appeals of Utah - October 16, 2020 - P.3d - 2020 WL 6106942 - 2020 UT App 139

City initiated action against owners of land south of airport acquired by city to obtain aviation easement by condemnation over airspace south of airport runway.

The Third District Court dismissed condemnation action. City appealed and owners cross-appealed.

The Court of Appeals held that:

Land owners’ admissions in May 2009 hearing on motion for partial summary judgment, on issue of city’s authority to condemn air rights over owners’ land, that certain facts were “undisputed for the purposes of the current motions” were limited in their applicability to the then-pending motions before the district court, and thus trial court did not err in failing to consider ruling when dismissing city’s condemnation complaint for failing to follow notice and disclosure requirements, where admissions came in response only to issue of extraterritorial eminent domain power, owners never withdrew immediate occupancy deposit including defense that city had not followed notice procedures, and city propounded discovery request for documents related to that defense.

Language in prior ruling for partial summary judgment on issue of city’s extraterritorial eminent domain power in action to obtain avigation easement over airspace south of airport, that one of undisputed issues was that owners “were provided with timely and proper notice regarding condemnation efforts” did not amount to ruling on issue of whether city gave land owners proper notice and disclosure required by statute, and thus reconsideration of issue was unnecessary on appeal; partial summary judgment ruling merely identified that notice issue was not in dispute as it related to city’s extraterritorial eminent domain power.

Notice to land owners of eminent domain proceedings regarding airspace over land they owned south of airport did not adhere to statute’s directive regarding timing of that notice, and thus was inadequate to initiate condemnation for avigation easement, although notice for first meeting complied with statutory requirements, where owners were allowed to speak at second meeting but were not sent written notice of meeting at least ten business days in advance, and notice for third meeting arrived only three business days before meeting and owners were not allowed opportunity to be heard.

Statute governing notice requirements for condemnation proceedings required strict compliance, and thus actual notice to land owners of eminent domain proceedings regarding air rights over land they owned south of city’s airport, and previous opportunities to be heard on issue did not fulfill purposes of statute to provide abundant procedural fairness to property owners.

Trial court did not err by not allowing city to amend complaint to obtain avigation easement over airspace south of airport through condemnation; city failed to adequately explain why amendment should be granted, failed to provide proposed amended complaint for consideration, and amendment would be futile since city could not retroactively follow statutory preconditions for condemning private property rights.




HIGHWAYS - VERMONT

In re Diverging Diamond Interchange Act 250

Supreme Court of Vermont - November 6, 2020 - A.3d - 2020 WL 6534557 - 2020 VT 98

Objector sought review of Environmental Commission’s decision granting Agency of Transportation’s application for an Act 250 land use or development permit for highway project involving reconfiguration of interstate exit, citing concerns of phosphorus and chloride discharges into impaired lake.

The Superior Court, Environmental Division, granted permit and entered a postjudgment motion clarifying its decision. Objector appealed.

The Supreme Court held that:

Environmental Division did not apply an improper de minimis standard in determining whether proposed project would cause undue water pollution precluding grant of an Act 250 land use or development permit sought by Agency of Transportation for highway project involving reconfiguration of interstate exit, even if Division characterized amount of phosphorus discharged by project into impaired lake as exceedingly small, where Division considered testimony from both parties’ experts regarding amount of phosphorus discharges, Division agreed with objector that there was no automatic allowance for de minimis water pollution, and Division also weighed project’s compliance with applicable regulations, ability of floodplains to retain phosphorus, and available mitigation measures.

Mere possibility of additional mitigation measures, without more, did not require a finding that water pollution from phosphorus discharges into impaired lake was undue water pollution that would preclude grant of an Act 250 land use or development permit sought by Agency of Transportation for highway project involving reconfiguration of interstate exit, where Agency provided evidence of a carefully designed stormwater treatment system that used grass channels to remove phosphorus, and objector’s expert testified that additional mitigation measures were available but could not quantify the expected reduction in phosphorus load or offer an opinion as to effect of reductions.

Environmental Division did not improperly afford Agency of Transportation a presumption of compliance with criterion of no undue water pollution for granting an Act 250 land use or development permit based on existence of stormwater permit for highway project involving reconfiguration of interstate exit; stormwater permit vested in regulations that did not include specific standards for phosphorus or chloride discharges, Division was concerned about strength of a presumption arising out of project’s circumstance because phosphorus or chloride discharges were at issue, and Division expressly evaluated each pollutant on the merits rather than relying upon a presumption.

Environmental Division did not improperly shift burden of proof to objector with respect to issue of undue chloride pollution from proposed highway project involving reconfiguration of interstate exit, in determining whether grant Agency of Transportation’s application for an Act 250 land use or development permit, where Division considered all evidence presented by Agency, including statewide snow and ice control plan, project’s chloride management plan, and extensive expert testimony, Division concluded that Agency satisfied its burden based on that evidence, and Division then considered objector’s evidence and concluded that it was insufficient to disturb that conclusion.

Environmental Division did not clearly err in finding that proposed project would not cause undue chloride pollution that would preclude grant of an Act 250 land use or development permit sought by Agency of Transportation for highway project involving reconfiguration of interstate exit, even though Division did not have evidence before it about chloride use by town that was responsible for maintaining portion of project, where Agency witness testified that town’s plan was reasonable and accorded with Agency’s statewide snow and ice control plan, Agency had agreement with town detailing town’s responsibility for winter road maintenance, and order granting permit provided that project was required to abide by conditions imposed by District Commission including chloride management plan.

Environmental Division acted within its discretion in not joining town as necessary co-applicant on appeal of Environmental Commission’s grant of Agency of Transportation’s application for an Act 250 land use or development permit for highway project involving reconfiguration of interstate exit, where Agency effectively controlled land such that appropriate permit conditions could be imposed on project, project’s chloride management plan accorded with Agency’s snow and ice control plan and also incorporated town’s snow and ice plan by reference, Agency’s expert testified that town’s plan was reasonable, permit required Agency to perform winter road management in accordance with chloride management plan, and Agency’s agreement with town required town to abide by chloride management plan.




PUBLIC PENSIONS - WASHINGTON

Wilson v. Washington State Department of Retirment Systems

Court of Appeals of Washington, Division 1 - November 2, 2020 - P.3d - 2020 WL 6389986

Retired city police officer sought judicial review of Department of Retirement Systems decision to deny him retirement benefits because, after leaving the police force, he took a new job as chief of staff for the city mayor.

The Superior Court reversed, and Department appealed.

The Court of Appeals held that:

Retired city police officer could assert equitable estoppel as a defense to Department of Retirement System’s defense of not paying him his pension because of his alleged breach in taking job as chief of staff for mayor; retired officer was due his pension and had, in essence, a contractual right to his pension benefits, and to contest the Department’s denial of his pension, his only remedy was to appeal the decision.

Department of Retirement Systems was equitably estopped from denying retired city police officer his pension benefits on grounds he accepted job as city mayor’s chief of staff; Department publications uniformly explained that an employee could return to work in the public sector and maintain their benefits by opting out of any other retirement program, city called and confirmed that information before hiring officer, officer relied on that information by resigning his law enforcement commission, terminating his employment as chief of police, and filling out the Department’s form for returning to work, and retroactive application of Department’s new requirement that a retiree have no reasonable expectation of continuing employment with the employer at the time of separation would be manifestly unjust to retired officer.

Department of Retirement System’s application of is new interpretation of “separated from service,” which provided that, to obtain pension benefits, a retiree have no reasonable expectation of continuing employment with the employer at the time of separation, to retired city police officer who took job as city mayor’s chief of staff was not substantially justified, and thus officer was entitled to attorney’s fees under the Equal Access to Justice Act (EAJA); Department’s website, publications, training, and oral representations confirmed the department’s historical interpretation of “separation of service” before officer retired, and there was no notice of any change of interpretation before it was applied to officer.




VOTING - GEORGIA

Wright v. Sumter County Board of Elections and Registration

United States Court of Appeals, Eleventh Circuit - October 27, 2020 - F.3d - 2020 WL 6277718

Voter brought action challenging county’s re-drawn school board district map, alleging that the electoral mechanism created by the new map would violate section 2 of the Voting Rights Act by diluting the strength of Black voters in county.

The United States District Court granted summary judgment in favor of county board of elections and registration. Voter appealed. The United States Court of Appeals reversed and remanded. Following bench trial on remand, the District Court found a section 2 violation, enjoined upcoming school board elections, and drew a new district map for county’s school board. Board appealed.

The Court of Appeals held that:




ZONING & PLANNING - GEORGIA

Dawson County Board of Commissioners v. Dawson Forest Holdings, LLC

Court of Appeals of Georgia - October 29, 2020 - S.E.2d - 2020 WL 6336058

Landowner brought two actions against county board of commissioners and board’s commissioners in both their official and individual capacities, after board denied landowner’s zoning requests, asserting that the current zoning classification was unconstitutional and seeking prospective relief to prevent its enforcement.

The Superior Court granted defendants’ motion to dismiss actions against the board and its commissioners in their official capacities, but declined to dismiss the actions against the commissioners in their individual capacities. The parties cross-appealed.

The Court of Appeals held that:

Sovereign immunity barred landowner’s claims for declaratory and injunctive relief against county board of commissioners and its commissioners in their official capacities; the claims sought injunctive and declaratory relief from the enforcement of an allegedly unconstitutional ordinance, i.e., zoning classification as applied to the properties, against the board and its commissioners in their official capacities, Supreme Court decision laying out sovereign immunity rule did not exempt zoning cases, and landowner identified no constitutional or statutory authority waiving sovereign immunity on the ground that an action was a zoning case.

Legislative immunity did not bar landowner’s claims against commissioners on county board of commissioners, in their individual capacities, in which landowner challenged current zoning classification and sought prospective relief to prevent its enforcement; even assuming commissioners’ votes against rezoning the properties were legislative acts, landowners claims did not arise from commissioners’ past votes on the properties’ zoning classifications, but instead, their claims for declaratory and injunctive relief arose from commissioners’ anticipated future enforcement of allegedly unconstitutional zoning classifications.

Landowner plausibly stated claims against commissioners on county board of commissioners, in their individual capacities, in which landowner challenged current zoning classification and sought prospective relief to prevent its enforcement; complaints claimed that commissioners were empowered to enforce the current, allegedly unconstitutional zoning classifications on the properties, and the allegations of the complaints did not disclose with certainty that landowner would not be entitled to relief under any state of provable facts asserted in support.




LIABILITY - KENTUCKY

Troutman v. Louisville Metro Department of Corrections

United States Court of Appeals, Sixth Circuit - October 29, 2020 - F.3d - 2020 WL 6336315

Estate and daughter of pretrial detainee who committed suicide while in solitary confinement at correctional facility brought civil rights action against classification officer, facility director and municipality, alleging deliberate indifference.

The United States District Court entered summary judgment in favor of defendants. Daughter appealed.

The Court of Appeals held that:

Genuine issue of material fact as to whether classification officer acted with deliberate indifference to pretrial detainee’s likelihood of suicide precluded summary judgment in favor of officer in detainee’s daughter’s § 1983 action alleging violation of due process following detainee’s suicide; although officer claimed reliance on a medical judgment that detainee no longer presented a suicide risk, the situation did not remain stable between detainee’s initial clearance from medical and his suicide days later, as detainee was involved in altercations that merited his removal to isolation, and medical clearance to general population was not the same as clearance to solitary confinement with access to bedsheets and barred windows.




ZONING & PLANNING - MAINE

Portland Pipe Line Corporation v. City of South Portland

Supreme Judicial Court of Maine - October 29, 2020 - A.3d - 2020 WL 6325858 - 2020 ME 125

Pipeline operator and trade association brought action against city and city’s code enforcement officer, challenging validity of city zoning ordinance that prohibited bulk loading of crude oil onto tankers in city harbor and building new structures for that purpose.

The United States District Court granted in part and denied in part defendants’ motion for summary judgment and denied plaintiffs’ cross-motion for summary judgment, and, after bench trial, dismissed plaintiffs’ sole remaining claim. Plaintiffs appealed. The United States Court of Appeals certified question.

The Supreme Judicial Court held that:

City ordinance intended to limit air pollution by prohibiting the bulk loading of crude oil onto any marine vessel in city’s harbor was not in direct conflict with the Maine Department of Environmental Protection’s (MDEP) exercise of the State’s police power pursuant to the Coastal Conveyance Act; the Ordinance did not purport to require the MDEP to do anything that the Act said it could not do, nor did it bar the MDEP from doing what the Act says that it could do, and it was not impossible to comply with both the ordinance and the license issued to pipeline operator by the MDEP, where the license permitted, and the ordinance did not forbid, transporting oil from city’s harbor via pipeline to Canada, as operator had always done.

License issued by the Maine Department of Environmental Protection’s (MDEP) to pipeline operator, that authorized operator to reverse the flow of oil in one of its pipelines, was not an “order” within meaning of the Coastal Conveyance Act; while the words “Department Order” appeared on the first page of the renewal license, the license did not command, direct, or instruct the operator to do anything other than fill rodent burrows and remove soil from the base of storage tanks before it conducted permitted activities.

The Coastal Conveyance Act did not preempt city ordinance intended to limit air pollution by prohibiting the bulk loading of crude oil onto any marine vessel in city’s harbor by implication; the Act unambiguously declared that municipal ordinances concerning oil terminal facilities were valid unless they directly conflicted with the Act or rules or orders made pursuant to it, and the city’s home rule authority to enact the ordinance was expressly recognized and affirmed by the Act.




TELECOM - MASSACHUSETTS

Cellco Partnership v. City of Peabody

Appeals Court of Massachusetts - September 24, 2020 - N.E.3d - 98 Mass.App.Ct. 496 - 2020 WL 5667189

Personal wireless services carrier sought review of city’s denial of special permit application to construct a wireless services facility to remedy wireless coverage gap in city, alleging violation of Telecommunications Act (TCA).

The Land Court Department granted summary judgment for carrier. City appealed.

The Appeals Court held that:

Municipal utility’s proposed municipal-wide distributed antenna system to remedy personal wireless services coverage gap in city was not a feasible alternative to carrier’s proposed personal wireless service facility, and thus city’s denial of carrier’s special permit application to construct facility effectively prohibited provision of personal wireless services in violation of Telecommunications Act (TCA), where carrier requested a price proposal seven times over a two-month period, utility failed to offer any price proposal, and parties could not reach an agreement as to provision of communication services to the new antennae, pole rental fees, and safety concerns.

Statements from municipal utility’s affidavit about estimated cost comparisons for a proposed alternative option to remedy carrier’s coverage gap for personal wireless services were conclusory and unsupported, and thus, insufficient to defeat motion for summary judgment in carrier’s zoning appeal alleging that city’s denial of special permit application to construct a wireless services facility violated Telecommunications Act (TCA) as an effective prohibition on service, where proposed option failed to materialize and cost estimates were developed based on wireless services from a different town.

No feasible alternative existed to carrier’s proposed personal wireless service facility, and thus city’s denial of carrier’s special permit application to construct facility effectively prohibited provision of personal wireless services in violation of Telecommunications Act (TCA), where carrier made diligent attempts, over course of four and one-half years, to find another feasible option, carrier considered multiple locations including utility pole, a church steeple, and site itself, carrier explored other options, such as small cell antennae and a municipal-wide distributed antenna system, and carrier considered some options multiple times.




EMINENT DOMAIN - MISSISSIPPI

Bay Point Properties, Inc. v. Mississippi Transportation Commission

Supreme Court of Mississippi - October 29, 2020 - So.3d - 2020 WL 6334788

Landowner filed inverse condemnation proceedings against the Mississippi Transportation Commission (MTC), claiming the easement MTC had across landowner’s property had terminated and that MTC was required to pay landowner the unencumbered value of the property.

The Circuit Court entered judgment on jury verdict finding that the easement, for which MTC had paid $50,000, continued to encumber the property, but that the use by MTC was not a highway purpose and awarding landowner the encumbered value of $500.00 and no attorney fees. Landowner appealed. The Supreme Court affirmed in part, reversed in part, and remanded for award of attorney fees. On remand, the Circuit Court awarded fees, but not in amount requested, and landowner appealed.

The Supreme Court held that trial court’s decision, in making award of prevailing party attorney fees to landowner in inverse condemnation action, to place greater weight on the results obtained and to award landowner only $67,277.35 of the $880,171.81 sought was not manifest abuse of discretion.

Trial court’s decision, in making award of prevailing party attorney fees to landowner in inverse condemnation action, to place greater weight on the results obtained and to award landowner only $67,277.35 in attorney fees, costs and expenses, not the $880,171.81 that it sought for obtaining an inverse condemnation award in nominal amount of $500.00, was not unmistakable or indisputable error and could not be disturbed under a “manifest abuse of discretion” standard of review.




MUNICIIPAL GOVERNANCE - WASHINGTON

Matter of Recall of White

Supreme Court of Washington - October 29, 2020 - P.3d - 2020 WL 6332723

Petition was filed for recall of city councilmember based on actions that he took which allegedly undermined public response to corona virus pandemic.

The Superior Court dismissed the petition, and appeal was taken.

The Supreme Court held that:




TELECOM - FEDERAL

COMPTEL v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit - November 3, 2020 - F.3d - 2020 WL 6437312

Competitive local exchange carrier and California’s telecommunications regulator filed petitions for review of order of the Federal Communications Commission (FCC), which determined that incumbent local exchange carriers no longer dominated telecommunications market, and exercised its authority under the Telecommunications Act to forbear from enforcing wholesale pricing requirement and analog loops network element of unbundling requirement it had previously imposed to foster competition in providing voice services for resale to customers.

Following consolidation of proceedings, incumbent carrier intervened in support of FCC.

The Court of Appeals holds that:

Federal Communication Commission’s (FCC) decision to forbear, under the Telecommunications Act, from enforcing wholesale pricing requirement it had previously imposed to foster competition in providing voice services for resale to customers was not arbitrary and capricious under the Administrative Procedure Act (APA), where it reasonably focused on national market for voice telecommunication services, rather than local markets separately, it found that copper wire advantage was of rapidly declining importance due to competing modes of voice transmission, and it found that incumbents’ possession of copper loops no longer gave them meaningful market power in national voice market, even though there were isolated geographic locations, especially rural areas, where competing modes were less robust.

Federal Communication Commission’s (FCC) decision to forbear, under the Telecommunications Act, from enforcing analog loops network element of unbundling requirement it had previously imposed to foster competition in providing voice services for resale to customers was not arbitrary and capricious under the Administrative Procedure Act (APA), although there were times when only copper loops, being self-powered, could conduct 9-1-1 calls when power went out, and FCC did not engage in detailed discussion about negative impact on public safety, where forbearance from unbundling requirement would not reduce availability of line-powered copper networks.

Findings and modes of analysis that were allegedly inconsistent with Federal Communication Commission’s (FCC) past orders did not render arbitrary and capricious its order, pursuant to its authority under the Telecommunications Act, to forbear from enforcing wholesale pricing requirement and analog loops network element of unbundling requirement it had previously imposed to foster competition in providing voice services for resale to customers, where FCC took different positions over last few decades because market for voice services and relevant technology had changed dramatically, it explained how market had evolved, and it reasonably concluded that intermodal competition was now sufficient to discipline prices.




EMINENT DOMAIN - GEORGIA

Clay v. Douglasville-Douglas County Water and Sewer Authority

Court of Appeals of Georgia - October 16, 2020 - S.E.2d - 2020 WL 6111205

Property owner brought action against county water and sewer authority (WSA), seeking damages for inverse condemnation, various costs, attorney fees, penalties, and other items.

The Superior Court granted defendant’s motion to dismiss, and property owner appealed.

The Court of Appeals held that:

County water and sewer authority’s (WSA) denial of property owner’s request for a variance from its stormwater regulations constituted an “administrative determination” for purposes of the Appellate Practice Act provision governing appeals from state and local administrative agencies; the WSA simply determined that based on the size of property owner’s property and the specifics of his proposed construction plans that the applicable stormwater regulations barred him from proceeding without taking corrective measures and that the WSA was not authorized to grant a variance, and as such, the WSA’s denial was based on the particulars of property owner’s proposal and the decision pertained to his property alone.

County water and sewer authority (WSA) was a “local administrative agency” for purposes of the Appellate Practice Act provision governing appeals from state and local administrative agencies; the legislature established the WSA as a “public body corporate,” and its powers included the power to contract with the city with respect to a water and sewage system, to include apportioning or designating the responsibility for any functions normally maintained by a water and sewerage system.

Property owner was required to file an application for discretionary appeal from superior court’s dismissal of his action against county water and sewer authority (WSA), even though the action was couched as a claim for inverse condemnation; property owner challenged the WSA’s decision by arguing its regulations should not have applied to his property because they had been superseded by federal and state statutory law, and property owner had been heard in two tribunals on the relevant issues, once by an administrative agency, and once by the superior court; disapproving Brownlow v. City of Calhoun, 198 Ga. App. 710, 402 S.E.2d 788.




EMPLOYMENT - LOUISIANA

Meiners v. St. Tammany Parish Fire Protection District No. 4

Supreme Court of Louisiana - October 20, 2020 - So.3d - 2020 WL 6146106 - 2020-0491 (La. 10/1/20)

Former assistant fire chief for parish fire protection district filed petition for judicial review of decision of the district’s civil service board which affirmed his termination.

The District Court reversed and remanded. District sought supervisory review. The Court of Appeal denied writ. District filed application for supervisory writ, and certiorari was granted.

The Supreme Court held that district court exceeded its statutory authority in reversing civil service board’s decision.

District court exceeded its authority, under statute governing court’s review of decision of civil service board, in reversing decision of parish fire protection district’s civil service board, which had upheld termination of assistant fire chief based on findings that assistant chief had made untruthful statements under oath, had improperly used his position to intimidate another officer, and had conducted factory reset of his district-issued cellphone, thereby destroying evidence; district court found sufficient evidence supported board’s good faith in making two of the findings, but still remanded for further proceedings, and although district court did not impose different sanction in place of board’s sanction, clear implication of court’s judgment was that termination was excessive.




INVERSE CONDEMNATION - MISSISSIPPI

Bay Point Properties, Inc. v. Mississippi Transportation Commission

Supreme Court of Mississippi - October 29, 2020 - So.3d - 2020 WL 6334788

Landowner filed inverse condemnation proceedings against the Mississippi Transportation Commission (MTC), claiming the easement MTC had across landowner’s property had terminated and that MTC was required to pay landowner the unencumbered value of the property.

The Circuit Court entered judgment on jury verdict finding that the easement, for which MTC had paid $50,000, continued to encumber the property, but that the use by MTC was not a highway purpose and awarding landowner the encumbered value of $500.00 and no attorney fees. Landowner appealed. The Supreme Court, en banc, affirmed in part, reversed in part, and remanded for award of attorney fees. On remand, the Circuit Court awarded fees, but not in amount requested, and landowner appealed.

Trial court’s decision, in making award of prevailing party attorney fees to landowner in inverse condemnation action, to place greater weight on the results obtained and to award landowner only $67,277.35 in attorney fees, costs and expenses, not the $880,171.81 that it sought for obtaining an inverse condemnation award in nominal amount of $500.00, was not unmistakable or indisputable error and could not be disturbed under a “manifest abuse of discretion” standard of review.




BALLOT INITIATIVE - TEXAS

Pool v. City of Houston

United States Court of Appeals, Fifth Circuit - October 23, 2020 - F.3d - 2020 WL 6253444

Professional petition circulators brought action challenging city charter provision, which permitted only registered voters who were city residents to circulate petitions for ballot initiatives and referenda.

The United States District Court for the Southern District of Texas sua sponte dismissed the action. Circulators appealed.

The Court of Appeals held that:

Professional petition circulators alleged injury-in-fact sufficient to support standing to bring action challenging city charter provision, which permitted only registered voters who were city residents to circulate petitions for ballot initiatives and referenda, as violative of their First Amendment free speech rights; circulators allegedly participated in circulation of numerous petitions in the past and intended to participate in such activity in the future, and there was reasonable threat of city’s future enforcement of charter provision, in light of city’s prior attempted enforcement and language on the city’s petition forms.

Professional petition circulators’ action challenging city charter provision, which permitted only registered voters who were city residents to circulate petitions for ballot initiatives and referenda, as violative of their First Amendment free speech rights was not rendered moot by city’s placement of “editor’s note” on its website indicating that city would accept petitions circulated by individuals who were not city residents and registered voters with a link to a revised petition form for nonresidents, where city council did not formally change the challenged provision or approve the nonresident petition form.




TAXPAYER STANDING - VIRGINIA

McClary v. Jenkins

Supreme Court of Virginia - October 22, 2020 - S.E.2d - 2020 WL 6192724

Taxpayers brought action for declaratory and injunctive relief against sheriff and county concerning sheriff’s cooperation agreement with the federal government concerning the enforcement of federal immigration laws.

The Circuit Court dismissed the suit, and taxpayers appealed.

The Supreme Court held that taxpayers lacked standing to challenge local governmental actions concerning enforcement of federal immigration laws.

Taxpayers seeking declaratory and injunctive relief against sheriff and county concerning the enforcement of federal immigration laws failed to allege specific local costs or expenditure as required to establish standing to challenge a governmental action; taxpayers’ did not make any allegations regarding a certain dollar amount or specifics concerning the appropriation of local tax revenues.




POLITICAL SUBDIVISIONS - VIRGINIA

Dumfries-Triangle Rescue Squad, Incorporated v. Board of County Supervisors of Prince William County

Supreme Court of Virginia - October 22, 2020 - S.E.2d - 2020 WL 6192378

County board brought declaratory judgment action against provider of emergency medical services, seeking determination that board had authority to dissolve provider’s corporate status.

The Circuit Court entered judgment in favor of board. Provider appealed.

The Supreme Court held that:

Entity which provided emergency medical services to county pursuant to contract was not “established pursuant to” statute governing emergency medical services agency, and thus county board lacked authority under such statute to dissolve entity, where entity existed well prior to enactment of statute, and after board severed its contractual relationship with entity, entity continued as private, nonstock corporation.

Statute allowing a county board to dissolve an emergency medical services agency “established pursuant to” such statute did not grant board, by implication, the power to dissolve an entity which was not established pursuant to statute but which provided emergency medical services pursuant to contract with county; plain language of statute was so strong as to preclude authority by necessary implication.




UTILITY FEES - CALIFORNIA

Malott v. Summerland Sanitary District

Court of Appeal, Second District, Division 6, California - October 19, 2020 - Cal.Rptr.3d - 2020 WL 6128117 - 20 Cal. Daily Op. Serv. 10,825 - 2020 Daily Journal D.A.R. 11,217

Owner of 30-unit apartment building filed an administrative mandamus petition against sanitary district alleging it imposed an excessive wastewater disposal charge for the property without regard to the proportional cost of providing wastewater service for her property, in violation of the California Constitution.

The Superior Court dismissed the petition on the ground that owner did not exhaust her administrative remedies. Owner appealed.

The Court of Appeal held that:

Owner of 30-unit apartment building was not required to exhaust administrative remedies by appearing at sanitary district’s public hearing before bringing action against the district for allegedly violating California Constitution by imposing excessive wastewater disposal charge for the property without regard to proportional cost of providing wastewater service, despite the fact owner elected to file an administrative mandamus petition instead of a declaratory relief action; owner’s petition asked for ruling that the district’s method of calculating residential rates was invalid, an appropriate type of relief in a declaratory relief action, and owner claimed she had no adequate forum at the public hearing to resolve evidentiary issues involved in a challenge to the rate structure.

Declaration of expert on utility and wastewater service rates should have been admitted by the court in proceedings on the challenge brought by owner of 30-unit apartment building to sanitary district’s allegedly excessive wastewater disposal charge for the property, which district allegedly imposed without regard to proportional cost of providing wastewater service, in violation of California Constitution; expert said the district used a flawed system of determining and allocating costs for residential users, the result of which was that it was overcharging apartment buildings and undercharging single-family residences, and a trier of fact accepting expert’s claims could reasonably find rate payers in apartment units were being substantially overcharged by the district.




LIABILITY - CONNECTICUT

Costanzo v. Town of Plainfield

Appellate Court of Connecticut - October 13, 2020 - A.3d - 200 Conn.App. 755 - 2020 WL 5988227

Estate of young child who drowned in swimming pool brought action to recover damages against town and town’s employees, alleging, among other claims, municipal defendants failed to conduct proper inspection of pool.

Municipal defendants filed an apportionment complaint against owners of property where pool was located and their former tenants who had pool constructed. The Superior Court sustained estate’s objections to apportionment complaint and dismissed municipal defendants’ complaint. Municipal defendants appealed.

The Appellate Court held that complaint alleged negligence, and not recklessness, and thus municipal defendants could seek apportionment as to negligence of other defendants.

After young child drowned in swimming pool, child’s estate alleged in complaint that town’s employees, and thus town, had actual notice that pool was constructed in violation of applicable laws and/or that pool constituted hazard to health or safety and failed to conduct an inspection, accordingly, the complaint’s allegations were made pursuant to statutory exception to municipal immunity which required proof of actual notice, but not recklessness, and thus, complaint alleged negligence, and not recklessness, on the part of the municipal actors, and town and town’s employees could therefore seek apportionment as to negligence of owners of property where pool was located and their former tenants who had pool constructed.




MUNICIPAL ORDINANCE - KANSAS

City of Wichita v. Trotter

Court of Appeals of Kansas - September 25, 2020 - P.3d - 2020 WL 5740895

Defendant was convicted in the District Court of operating a club without an entertainment-establishment license. Defendant appealed.

The Court of Appeals held that:




COMMUNITY IMPROVEMENT DISTRICT ASSESSMENTS - MISSOURI

Real Estate Recovery, LLC v. Branson Hills Facility Infrastructure Community Improvement District

Missouri Court of Appeals, Southern District, Division One - October 14, 2020 - S.W.3d - 2020 WL 6054606

Real Estate Recovery, LLC (“RER”) appealed from the trial court’s summary judgment in favor of Branson Hills Facility Infrastructure Community Improvement District (“the District”). RER argues that the trial court erred in entering summary judgment in favor of the District, in that the District’s assessments did not survive the post-third-offering sale at which RER purchased the four parcels of real estate (“the Parcels”)

This case derived from the Taney County Collector’s (“the Collector”) post-third offering for delinquent community improvement district (“CID”) assessments levied by the District against the Parcels, which RER purchased at the offering. RER subsequently filed a petition to quiet title. Thereafter, RER and the District both filed motions for summary judgment. RER argued (in relevant part) that, pursuant to the Community Improvement District Act (the “CID Act”) and the Jones-Munger Act, RER’s Collector’s Deeds terminated all District special assessments as to the Parcels.

The District—also relying on the Jones-Munger Act and the CID Act—argued that the sale did not impair the District’s power or authority to impose and levy “future … special assessments” within the boundaries of the District, and that either RER’s Collector’s Deeds were invalid or RER owed the delinquent 2015 assessment amount, as RER was required (and failed) to pay that sum before receiving its Collector’s Deeds.

The trial court entered summary judgment in favor of the District, and against RER. RER appealed.

In the appeal, the Court of Appeals noted that the sole and narrow issue before it was whether — in light of the controlling provisions of the CID Act and the Jones-Munger Act — assessments levied or imposed by the District against the Parcels after the post–third-offering sale survive, such as to impose a continuing lien on the Parcels (and a corresponding obligation on RER to remit payment for such subsequently levied or imposed assessments).

The Court of Appeals held that assessments levied or imposed by the District against the Parcels after the post–third-offering sale survive, such as to impose a continuing lien on the Parcels.




QUIET TITLE - NEW MEXICO

Nash v. Board of County Commissioners of Catron County

Supreme Court of New Mexico - October 19, 2020 - P.3d - 2020 WL 6144594

Landowners brought separate actions to quiet title to real estate located in two counties, and defendant counties asserted sovereign immunity.

The District Court denied county’s motion to dismiss, and the county appealed. The District Court granted the county’s motion to dismiss, and the landowners appealed. Appeals were consolidated. The Court of Appeals affirmed in part, reversed in part, and remanded, holding that the State and its political subdivisions are immune from quiet title actions. Landowners petitioned for writ of certiorari.

The Supreme Court held that:

Legislature intended statute to create a limited waiver of governmental immunity from being named a defendant in actions to quiet title; title of statute clarified legislative intent to create a limited waiver of immunity requiring consent of the state to be named in a lawsuit where the state holds or claims a lien against real or personal property and where that lien is being adjudicated or foreclosed, full title of enrolled and engrossed bill was included as an annotation when the law was originally codified, that annotation was likewise included without alteration or amendment when the statute was recompiled, and when legislature enacted statute to effectively establish statutory immunity, it did so aware of the limited waiver it had previously granted.

Supreme Court would decline to exercise its discretionary authority to reach landowners’ constitutional due process argument regarding claims to quiet title against counties, where landowners did not present an appropriately developed case, one where sovereign immunity, interposed to bar quiet title actions, had denied landowners a remedy for the taking of property without compensation.




IMMUNITY - NEW YORK

Bauer v. County of Erie

Supreme Court, Appellate Division, Fourth Department, New York - October 9, 2020 - N.Y.S.3d - 2020 WL 5987012 - 2020 N.Y. Slip Op. 05623

Commuter’s estate brought wrongful death action against town and police department alleging negligent failure to rescue commuter who was found dead in vehicle three days after becoming stuck in snow bank during a town-issued travel ban during severe winter storm and making calls to town’s 911 dispatcher.

The Supreme Court, Erie County, granted summary judgment in favor of town and police department. Estate appealed.

The Supreme Court, Appellate Division, held that:

Town and police department were acting in a governmental capacity when a commuter made calls to town’s 911 dispatcher during severe winter storm in which town had issued travel ban, and thus commuter’s estate was required to prove special duty in order to impose negligence liability on town and police department for failing to rescue commuter, who was found dead in vehicle three days after becoming stuck in snow bank and making 911 calls.

Town and police department did not voluntarily assume a duty of care to commuter that would generate reasonable reliance, and thus there was no special relationship on which to impose negligence liability on town and police department for failing to rescue commuter who was found dead in vehicle three days after becoming stuck in snow bank during a town-issued travel ban during severe winter storm and making calls to town’s 911 dispatcher; town and police department did not assume, through promise or action, any duty to act on commuter’s behalf, and any alleged reliance upon representations made by town or police department was not justifiable.




IMMUNITY - TEXAS

City of El Paso v. Aguilar

Court of Appeals of Texas, El Paso - October 9, 2020 - S.W.3d - 2020 WL 5987623

Pedestrian brought action against city alleging that she was knocked down and run over by float during city’s parade, claiming, under the Texas Tort Claims Act (TTCA), city was negligent in failing to properly oversee and control parade traffic, and also claiming that city negligent in training and supervision of employee who drove the truck that pulled the float, and that city was liable for conduct of employee either by vicarious liability or respondeat superior.

After a hearing, the District Court denied city’s plea to the jurisdiction. City appealed.

The Court of Appeals held that:

Pedestrian pleaded, and supported with evidence, that city used or operated the motor vehicle that caused her injury by directing the driver of that motor vehicle to move it forward, and thus pleaded, and supported with evidence, jurisdictional facts supporting a waiver of city’s immunity under Texas Tort Claims Act (TTCA); although pedestrian did not allege that driver of truck that allegedly caused her injury was city employee, it was sufficient she alleged driver moved truck at the direction of a city employee acting within the course and scope of his employment, pedestrian alleged parade generally, and flow of parade floats specifically, were conducted under direction and supervision of city parks department, and city did not controvert evidence of city parks department’s control of parade.

Pedestrian’s pleadings did not contain sufficient facts to affirmatively demonstrate city waived its immunity under the Texas Tort Claims Act’s (TTCA) “condition or use of tangible personal … property” waiver of immunity, in pedestrian’s negligence action against city for injuries sustained during city parade, where pedestrian’s pleadings related only to the use or operation of a motor vehicle by the city, and there was no allegation, evidence, or even mention of any tangible personal property causing pedestrian’s injury, other than the motor vehicle.

Pedestrian’s pleadings which alleged that city was liable for negligently failing to properly oversee and control traffic during parade, and for negligently training and supervising its employee did not contain sufficient facts to affirmatively demonstrate city waived its immunity under the Texas Tort Claims Act; neither pedestrian’s pleadings nor the evidence submitted to the trial court demonstrate that these allegations fall within any waiver of immunity applicable to city.




BALLOT INITIATIVES - WASHINGTON

Garfield County Transportation Authority v. State

Supreme Court of Washington - October 15, 2020 - P.3d - 2020 WL 6106952

Several counties, cities, associations, and private citizens challenged the constitutionality of initiative to limit motor vehicle taxes and fees, under various provisions of the Washington Constitution.

After several parties, including initiative sponsors, a group of taxpayers, county, transit groups, and environmental groups were granted leave to intervene, most parties moved for summary judgment and Superior Court found a few provisions unconstitutional, but severable, and otherwise upheld the initiative. Challengers appealed.

The Supreme Court held that:

Voter initiative measure limiting vehicle taxes and fees violated constitutional prohibition on bills embracing more than one subject; initiative included a specific directive to regional transit authority to retire, defease, or refinance bonds, which was not germane to limiting vehicle taxes and fees and the provisions of the initiative that carried out that subject, and initiative combined general and specific provisions, and unrelated local and statewide effects.

Voter initiative measure limiting vehicle taxes and fees violated constitutional provision requiring that subject to be expressed in the title; statement in ballot title that initiative would “limit annual motor-vehicle-license fees to $30, except voter approved charges,” was deceptive and misleading since the average informed lay voter would conclude that voter approved taxes, such as those used to fund local and regional transportation projects across the state, would remain, when in fact initiative would eliminate a large number of voter-approved charges and remove the very statutory mechanism by which voters could approve charges in the future.

County and municipal plaintiffs who challenged constitutionality of initiative to limit motor vehicle taxes and fees did not violate statute prohibiting elective officials, their employees, and persons appointed to or employed by public offices or agencies, to authorize use of any of the facilities of a public office or agency for promotion of or opposition to any ballot proposition; at the time of the court challenge, initiative was no longer “proposed to be submitted to the voters,” but rather, it was an enrolled piece of legislation.




BALLOT INITIATIVES - CALIFORNIA

Denny v. Arntz

Court of Appeal, First District, Division 2, California - September 17, 2020 - Cal.Rptr.3d - 2020 WL 6059671 - 20 Cal. Daily Op. Serv. 10,653

Plaintiff brought action against city officials seeking to set aside a passed proposition to fund repairs and improvements to a seawall. The Superior Court sustained officials’ demurrer and dismissed without leave to amend. Plaintiff appealed.

The Court of Appeal held that:

Plaintiff failed to state any statutory grounds for relief, as required to bring postelection contest to city proposition to fund repairs and improvements to a seawall; even though plaintiff labeled his claim as offense against elective franchise, complaint was actually challenge to sufficiency and impartiality of proposition’s digest and ballot materials, which was not listed as grounds for postelection challenge, plaintiff did not bring action against candidate as statute required, and plaintiff did not avail himself of preelection procedures for challenging proposition’s ballot materials or digest.

Demurrer to plaintiff’s postelection contest to city proposition to fund repairs and improvements to a seawall was procedurally proper, despite contention that city officials were required to file an affidavit to respond to complaint; plaintiff did not properly allege grounds for postelection contest, and there was no incompatibility between demurrer and election contest, as election statute authorized dismissal on same standards as demurrer.

Plaintiff was not entitled to leave to amend complaint, which failed to state statutorily allowed claim for a postelection challenge to a city proposition to fund repairs and improvements to a seawall; proposed amendment was to add ground for relief that measure purported to impose ad valorem taxes for bonded indebtedness for purposes other than acquisition or improvement of real property, and plaintiff did not demonstrate how amendment would have allowed him to state cause of action.

 

 




CONTRACTS - KANSAS

Farmers Bank & Trust v. Homestead Community Development

Court of Appeals of Kansas - October 2, 2020 - P.3d - 2020 WL 5849345

In 2007, Farmers Bank lent $600,000 to Homestead Community Development, Inc. to remodel a property called the Bartell House in downtown Junction City. Terry Heldstab, who was Mayor at the time, signed a letter of guaranty to Farmers.

When Homestead failed to pay the loan, Farmers sued Homestead on its note and foreclosed its mortgage. The court granted Farmers judgment when Homestead failed to pay the loan. Farmers then turned to the City and sought to enforce the guaranty. But the City maintained that the guaranty was void and unenforceable.

The District Court ruled in favor of City and City appealed.

The Court of Appeals upheld the ruling, finding that:

 




IMMUNITY - MAINE

McDonald v. City of Portland

Supreme Judicial Court of Maine - October 13, 2020 - A.3d - 2020 WL 6039159 - 2020 ME 119

Pedestrian who slipped and fell on plaza immediately outside police department headquarters brought personal injury action against city for its alleged negligence in maintaining the area.

The Superior Court denied city’s motion for summary judgment on immunity grounds, and city appealed.

The Supreme Judicial Court held that:

Plaza immediately outside police department headquarters where pedestrian slipped and fell on ice was an “appurtenance” to public building, and not an excluded sidewalk or parking lot, the negligent maintenance of which by municipality could subject it to liability under the “public building” exception to the Maine Tort Claims Act (MTCA); it did not matter that municipality allowed staff to park bicycles and motorcycles in limited area of the plaza, since to hold that government entity could defeat the “public building” exception to immunity by simply allowing staff to park motorcycles or bicycles on what would otherwise be an appurtenance would be absurd or illogical.

City’s failure to treat icy conditions of a plaza appurtenant to public building could be considered a “negligent act[ ] or omission,” in the “maintenance” of the plaza, such as would subject city to liability for fall that occurred as result of such negligence under the “public building” exception to the Maine Tort Claims Act (MTCA).




IMMUNITY - MARYLAND

Coit v. Nappi

Court of Special Appeals of Maryland - October 1, 2020 - 2020 WL 5824217

Parents of patient, who died as result of cardiac arrest following an acute asthma attack, and patient’s estate filed suit against paramedic, emergency medical technician (EMT) and county, who was their employer, asserting wrongful death and related claims.

The Circuit Court entered summary judgment for defendants. Parents and estate appealed.

The Court of Special Appeals adopting motions court’s findings, held that:




MUNICIPAL CORPORATIONS - NEW YORK

Brown v. New York City Department of Transportation

Supreme Court, Appellate Division, First Department, New York - October 15, 2020 - N.Y.S.3d - 2020 WL 6065381 - 2020 N.Y. Slip Op. 05807

Pedestrian brought personal injury action, which alleged that she stepped into an area of a missing sidewalk curb, causing her to trip and fall, against company that owned the premises abutting the sidewalk and against company that managed the building abutting the sidewalk.

The Supreme Court denied defendants’ motion for summary judgment. Defendants appealed.

The Supreme Court, Appellate Division held that sidewalk curb was not a “sidewalk” within meaning of city administrative code.

Area of a missing sidewalk curb, which was a sizable gap located next to a tree well, was not a “sidewalk,” within meaning of city administrative code provision governing duties of abutting property owners, and thus abutting property owners were under no duty to maintain the sidewalk curb in a reasonably safe condition.




EMINENT DOMAIN - OHIO

State ex rel. New Wen, Inc. v. Marchbanks

Supreme Court of Ohio - October 14, 2020 - N.E.3d - 2020 WL 6050679 - 2020 -Ohio- 4865

Following grant of writ of mandamus to compel Department of Transportation and its director to commence appropriation proceedings for taking of real property, property owner filed application for award of reasonable attorney fees and costs.

The Supreme Court held that:

Provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, authorizing a court to award attorney fees to the real property owner when a federal agency institutes a condemnation proceeding in federal court or to the prevailing or settling plaintiff in an inverse-condemnation proceeding against the United States for the taking of property by a federal agency, apply only to exercises of eminent domain by federal agencies and do not create a statutory basis for an award of attorney fees in a state mandamus action seeking to compel an appropriation proceeding for the taking of real property.

Provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, providing that before a federal agency may approve a project or contract with an acquiring agency, such as the Ohio Department of Transportation, the acquiring agency must give satisfactory assurances that property owners would be paid or reimbursed for necessary expenses, including reasonable attorney fees, imposes an obligation upon federal agencies to ensure certain conditions are met before approving contracts and is not statutory authorization for an award of attorney fees in a state mandamus action seeking to compel an appropriation proceeding for the taking of real property.

State regulation adopting language of federal regulation authorizing recovery of attorney fees by a prevailing or settling plaintiff in an inverse-condemnation proceeding was not predicated on statutory grant of authority and, thus, did not support award of attorney fees in property owner’s mandamus action seeking to compel the Department of Transportation to initiate appropriation proceeding for the taking of real property; statute pursuant to which regulation was promulgated did not allow property owner who initiated inverse-condemnation proceeding to recover attorney fees or authorize agency to promulgate rule that provided for those fees, and other statute referred to in that statute provided for award of attorney fees in condemnation proceeding instituted by state agency, which was different context.

Because the Supreme Court has no original jurisdiction to hear a § 1983 claim, a party to a mandamus proceeding is not entitled to attorney fees under § 1988 as a “prevailing party” on such a claim.




BALLOT INITIATIVE - OREGON

Harisay v. Clarno

Supreme Court of Oregon - October 8, 2020 - P.3d - 367 Or. 11620 - 20 WL 5951545

Citizens brought action seeking declaratory judgment requiring Secretary of State to certify a ballot initiative which purported to be an “application” to Congress to call a constitutional convention.

The Circuit Court, granted Secretary’s motion for judgment on the pleadings. Citizens appealed, and the Court of Appeals affirmed. Citizens sought review, which the Supreme Court allowed.

The Supreme Court held that as a matter of first impression, initiative was not within the scope of the people’s power “to propose laws” under Oregon Constitution.

Initiative which sought to change federal constitutional law through the mechanism of asking Congress to call a federal constitutional convention was not within the scope of the people’s power “to propose laws” under Oregon Constitution’s initiative provision, as it did not intend any change to Oregon law, and thus could not be adopted through initiative process or be placed on the ballot.




ANNEXATION - WASHINGTON

Ronald Wastewater District v. Olympic View Water and Sewer District

Supreme Court of Washington - October 15, 2020 - P.3d - 2020 WL 6106955

Wastewater district brought action against sewer district, town, and county, seeking a declaration confirming that its corporate boundary included a particular area, based on a prior annexation ordered by a court.

The Superior Court granted wastewater district’s partial motion for summary judgment. Sewer district and town appealed. The Court of Appeals reversed. Wastewater district’s petition for review was granted.

The Supreme Court held that:

Original sewer district did not relinquish its authority over disputed area, and thus wastewater district and county adjacent to area had no right to unilaterally annex area; even though sewer district gave county permission by contract to provide water service to area, and even if permission extended beyond water service and included provision of sewer service, sewer district did not relinquish primary sewerage authority, and sewer district and area’s actual county was not involved in annexation process.

To be properly transferred and annexed under the former statutory scheme, the sewer-service territory must be exclusively within the transferring county’s geographic service area and cannot be within another district’s service area, unless the existing district relinquishes its sewerage authority to the transferring county; the statutory authority does not permit a hostile takeover of another district’s service area without notice or permission.




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.






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