Cases





ZONING & PLANNING - MAINE

Day v. Town of Hiram

Supreme Judicial Court of Maine - February 4, 2025 - A.3d - 2025 WL 379702 - 2025 ME 8

Landowner appealed from decision of town planning board granting neighbors a conditional use permit to construct a microbrewery on property in residential district.

The Superior Court affirmed. Landowner appealed.

The Supreme Judicial Court held that planning board misconstrued and failed to consider zoning factor of “the need of a particular location for the proposed use.”

Town planning board’s consideration of permit applicants’ need to construct microbrewery on their property in residential district misconstrued and did not satisfy zoning ordinance requirement to consider the factor of “the need of a particular location for the proposed use,” when granting conditional use permit, thus requiring vacatur of judgment affirming board’s decision granting permit to applicants, and remand to the board for further consideration; board erroneously focused on permit applicants’ need, but statement of purposes for residential district made clear that the factor referred instead to the community’s need for businesses that promoted economic wellbeing in a manner compatible with residential uses.




CHARTER AMENDMENTS - MARYLAND

Baltimore City Board of Elections v. Mayor and City Council of Baltimore

Supreme Court of Maryland - February 3, 2025 - A.3d - 2025 WL 366529

Mayor, city council, and director and deputy director of city’s department of finance sued city’s board of elections, its president, and its election director, seeking judicial review of board’s certification, for general election ballot, of citizen-initiated “Baby Bonus Amendment” to city charter, to mitigate childhood poverty by requiring payments of at least $1,000 to all new parents residing in city, and also sought writ of mandamus to compel board to perform its statutory duties, and declaratory and injunctive relief.

Amendment’s sponsor intervened as defendant. The Circuit Court granted summary judgment to mayor, city council, and city officials, denied board’s and sponsor’s motions to dismiss or for summary judgment, declared that proposed amendment was not proper charter material under state Constitution’s Home Rule Amendment, and enjoined placement of proposed amendment on ballot. Board and sponsor noted a direct appeal to the Supreme Court. The Supreme Court issued an order affirming the Circuit Court.

In an opinion in support of its order, the Supreme Court held that:

Proposed citizen-initiated “Baby Bonus Amendment” to Baltimore City’s charter, to mitigate childhood poverty by requiring payments of at least $1,000 to all new parents residing in city, did more than address the form or structure of government and was therefore not proper charter material under state Constitution’s Home Rule Amendment; proposal was akin to a legislative enactment because it mandated the making of mandatory minimum payments to certain residents of city and encroached on city’s discretion to address matters of public health and welfare, which were areas that Home Rule Amendment recognized as having been specifically reserved to the particular city under General Assembly’s delegation of powers.

Portion of proposed citizen-initiated “Baby Bonus Amendment” to Baltimore City’s charter that was not proper charter material under state Constitution’s Home Rule Amendment because it was akin to a legislative enactment, i.e., mandatory payments of at least $1,000 to all new parents residing in city, was not severable, where proposal’s dominant purposes was mitigating childhood poverty in city; proposal would have no practical effect without $1,000 mandatory minimum payments.




EMINENT DOMAIN - OHIO

Lifestyle Communities, Ltd. v. City of Worthington, Ohio

United States District Court, S.D. Ohio, Eastern Division - December 27, 2024 - F.Supp.3d - 2024 WL 5237674

Real estate developer brought action against city, asserting claims under the First and Fifth Amendments and corresponding provisions of the Ohio Constitution, along with other claims, and seeking declaratory judgment after city denied developer’s application to rezone recently purchased property as a planned unit development and replaced existing land use plan with a resolution that emphasized the desirability of a large contiguous greenspace on the property. Parties filed cross-motions for summary judgment.

The District Court held that:




PUBLIC EMPLOYMENT - RHODE ISLAND

Providence Retired Police and Firefighter's Association v. City of Providence by and through Lombardi

Supreme Court of Rhode Island - February 4, 2025 - A.3d - 2025 WL 378972

Retired police and firefighters association brought action against city seeking declaratory judgment that city must process applications for occupational cancer disability benefits under state cancer benefits act for firefighters rather than under city ordinance.

The Superior Court granted association’s motion for partial summary judgment and denied city’s cross-motion for summary judgment. City appealed.

The Supreme Court held that general state statute providing benefits for firefighters with occupational cancer did not supersede special statute that established pension system for city firefighters and had different requirements for qualifying for cancer benefits.




EMINENT DOMAIN - ARIZONA

State v. Foothills Reserve Master Owners Association, Inc.

Supreme Court of Arizona - January 28, 2025 - P.3d - 2025 WL 311248

State Department of Transportation filed condemnation action to acquire subdivision’s common areas for freeway construction, and homeowners sought proximity damages for a complete taking of positive easements to use the land and negative easements to preserve the open space.

Following cross-motions for summary judgment, the Superior Court determined homeowners were entitled to proximity damages, and a stipulated final judgment was entered. State appealed, and the Court of Appeals reversed and remanded. The Supreme Court granted homeowners’ petition for review.

The Supreme Court held that as a matter of first impression, easements were severed from a larger parcel such that homeowners were entitled to severance damages for any injury to remaining property as a consequence of the freeway’s proximity.

When determining whether property condemned is part of a “larger parcel,” such that the landowner may be entitled to severance damages, a court must initially ask if the property condemned constitutes a portion of a single parcel, and if the answer to that initial inquiry is “no,” the court must ask if the condemned property nevertheless forms part of a “larger parcel” with a separate, distinct parcel owned by the condemnee, and should examine the unities of use, ownership and contiguity to make that determination; if the court determines that the condemned property is not part of a “larger parcel,” the inquiry ends, and the condemnee is not entitled to severance damages, but if the court determines that the condemned property forms part of a “larger parcel,” the court should then decide whether the condemnation or any improvements built on the condemned property injured the remaining portion, and if so, the condemnee is entitled to severance damages.

Appurtenant easements which the State condemned as part of freeway construction project were severed from a larger parcel that included homeowners’ physical real properties such that homeowners were entitled to severance damages for any injury to the homeowners’ remaining property as a consequence of the freeway’s proximity; homeowners were members of a subdivision homeowners’ association and had a positive easement to use the subdivision’s common areas for enjoyment and a negative easement which restricted the common areas to undevelopable open space, and the State condemned the common areas as part of its freeway project.




NEGLIGENCE - CALIFORNIA

Bakos v. Roach

Court of Appeal, Third District, California - January 29, 2025 - Cal.Rptr.3d - 2025 WL 322879

Owner brought action against humane society, two humane officers, individually and on behalf of humane society, and volunteer veterinarian, for negligence and abuse of process, after officers seized owner’s dogs, chickens, roosters, and goose, pursuant to search warrant issued under animal protection law.

The Superior Court granted summary judgment in favor of defendants. Owner appealed.

The Court of Appeal held that:




ELECTION DISTRICTS - GEORGIA

Nelson v. Strickland

Supreme Court of Georgia - January 28, 2025 - S.E.2d - 2025 WL 309403

Unsuccessful candidate for city commissioner filed pro se petition contesting election, alleging that the use of an outdated voting district map resulted in voters casting ballots in wrong districts, which potentially affected election outcome.

The Superior Court entered orders granting petition, vacating election, and directing that a new election be held using updated map. Election winner appealed, and appellate court granted motion to stay trial court’s orders pending appeal.

The Supreme Court held that due to city’s failure to meet filing requirements under the Municipal Home Rule Act, city charter amendment updating election districts for city commissioners never became effective.

City charter amendment updating election districts for city commissioners never became effective, and thus failure of election officials to use that map did not warrant vacating election for city commissioner; filings that the Municipal Home Rule Act required to be made with the Secretary of State and clerk of superior court were not actually made, and despite argument that city substantially complied with the requirements for amending its charter, making no filings of any kind could hardly be considered substantial compliance with a statutory requirement that consisted entirely of making filings.




STANDING - ILLINOIS

Waukegan Potawatomi Casino, LLC v. Illinois Gaming Board

Supreme Court of Illinois - January 24, 2025 - N.E.3d - 2025 IL 130036 - 2025 WL 285175

Unsuccessful applicant for casino owners’ license, whose application city refused to certify to Illinois Gaming Board, filed complaint for declaratory and injunctive relief to prohibit Board from issuing casino owners’ license for city due to city’s alleged noncompliance with Illinois Gambling Act. After Board issued license to successful applicant, city and Board moved to dismiss for lack of standing.

The Circuit Court granted motions. Unsuccessful applicant appealed. During pendency of appeal, Board issued temporary operating permit and owners’ license to successful applicant, and city and Board moved to dismiss appeal as moot. The Appellate Court denied motions, reversed, and remanded. City’s and Board’s petitions for leave to appeal were granted.

The Supreme Court held that:

Unsuccessful applicant for casino owners’ license, whose application city had refused to certify so that Illinois Gaming Board could consider it, lacked legal cognizable interest in process before Board, and thus, lacked standing to seek declaratory and injunctive relief precluding Board from issuing license based on argument that city’s certification of three other applicants failed to comply with Illinois Gambling Act’s criteria such that Board lacked jurisdiction over those applications; Act did not treat certification process as bidding process, but rather, gave city discretion to certify applicants and allowed it to reject applicants for any reason, and any right that unsuccessful applicant had to lawfully-conducted certification proceedings ended when Board proceedings began.




EMINENT DOMAIN - VIRGINIA

Mountain Valley Pipeline, LLC v. 9.89 Acres of Land

United States Court of Appeals, Fourth Circuit - January 27, 2025 - F.4th - 2025 WL 301695

Pipeline company brought condemnation action under Natural Gas Act for pipeline easement on landowner’s property.

The United States District Court for the Western District of Virginia, Elizabeth K. Dillon, Chief Judge, 2021 WL 4398032, granted pipeline company’s motion to exclude landowner’s proffered expert evidence and awarded just compensation. Landowner appealed.

The Court of Appeals held that:




FIRE PROTECTION SERVICE FEES - ALABAMA

Johnson v. Four-C Volunteer Fire Department

Supreme Court of Alabama - December 13, 2024 - So.3d - 2024 WL 5101169

Volunteer fire departments brought action against county revenue commissioner, in his official capacity, for a declaratory judgment as to the correct interpretation and implementation of a local act that established fire-protection service fees in the county and for a writ of mandamus requiring commissioner to assess and collect fees in accordance with the act.

After a bench trial, the Circuit Court entered order granting declaratory relief in favor of volunteer fire departments with respect to certain interpretations of the local act and issuing a writ of mandamus to the extent that commissioner was acting inconsistently with the declared interpretation of the act. Commissioner appealed.

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




LIABILITY - ALASKA

Tripp v. City and Borough of Juneau

Supreme Court of Alaska - January 17, 2025 - P.3d - 2025 WL 225322

Motorist and her husband filed suit against defendants including city, police department, and police chief, seeking to recover for injuries motorist sustained when her vehicle was rear-ended by intoxicated, off-duty city police officer in his personal vehicle, and alleging claims for negligent training and negligent supervision, as well as husband’s claim for loss of consortium.

The Superior Court granted defendants’ motion to dismiss for failure to state a claim. Motorist and husband appealed.

The Supreme Court held that:




EMINENT DOMAIN - CALIFORNIA

Town of Apple Valley v. Apple Valley Ranchos Water

Court of Appeal, Fourth District, Division 2, California - January 15, 2025 - Cal.Rptr.3d - 2025 WL 100520

Town brought eminent-domain action to acquire private water utility system, and system’s owner objected.

Following a bench trial, the Superior Court, San Bernardino County, entered judgment in favor of owner and awarded attorney fees to owner. Town appealed.

The Court of Appeal held that:




BANKRUPTCY - FEDERAL

In re Ellingsworth Residential Community Association, Inc.

United States Court of Appeals, Eleventh Circuit - January 13, 2025 - F.4th. - 2025 WL 78887

Debtor, a Florida not-for-profit homeowners association (HOA), brought prepetition state-court action against homeowner for allegedly failing to conform her yard to association’s covenants, and homeowner filed state-law counterclaims.

After state court dismissed lawsuit and directed debtor to pay homeowner’s attorney fees and costs, debtor petitioned for Chapter 11 bankruptcy under subchapter V. Homeowner objected, arguing that debtor was ineligible and that its proposed plan of reorganization did not comply with Bankruptcy Code requirements.

The United States Bankruptcy Court for the Middle District of Florida entered orders confirming debtor’s plan over homeowner’s objections and denying homeowner’s motions for stay relief, and for mandatory abstention. Homeowner appealed.

The District Court affirmed confirmation order and stay-relief order and dismissed appeal from abstention order. Homeowner, proceeding pro se, filed appeals, which were consolidated.

The Court of Appeals held that:

A not-for-profit company can be “engaged in commercial or business activities” as required to be eligible for subchapter V of Chapter 11 of the Bankruptcy Code; Congress did not include not-for-profit companies alongside the list of other excluded debtors in the statute, nor did it include any textual requirement that a debtor pursue a profit, the broad eligibility of the Code’s definition of “small business debtor” does not limit subchapter V to for-profit entities, but, instead, allows any entity involved in regular business-like functions—no matter if its primary goal is to earn a profit—to qualify for reorganization under subchapter V, and, since nonprofit entities are allowed to file for Chapter 11 relief, and subchapter V is within Chapter 11, it would be insensible to consider such entities capable of petitioning for Chapter 11 relief but not for relief under a subchapter of Chapter 11.

Florida not-for-profit corporation operating as a homeowners association (HOA) engaged in “business activities,” and thus was eligible to be a debtor under subchapter V of Chapter 11; HOA’s nonprofit status did not preclude it from engaging in business-like operations, but, to the contrary, Florida law permitted it to collect assessments, manage budgets, enforce rules, and maintain common areas, and, in practice, HOA operated much like a small business—overseeing the maintenance of shared properties, contracting with service providers, and negotiating with third parties on behalf of its members.




EMINENT DOMAIN - IOWA

Abbas v. Franklin County Board of Supervisors

Supreme Court of Iowa - January 17, 2025 - N.W.3d - 2025 WL 223427

Owners of farmland in drainage district appealed compensation determination of the county board of supervisors which reconstructed drainage ditch and restored it to an open ditch.

The District Court awarded right-of-way and severance damages, and directed one landowner to convey severed parcel to the board. Both parties appealed, and, upon transfer, the Court of Appeals affirmed in part and vacated in part. The Supreme Court granted further review.

The Supreme Court held that:




PUBLIC UTILITIES - OHIO

Dayton Power & Light Company v. Federal Energy Regulatory Commission

United States Court of Appeals, Sixth Circuit - January 17, 2025 - F.4th - 2025 WL 227515

Electricity transmission utilities and Ohio Consumers’ Counsel (OCC) petitioned for review of Federal Energy Regulatory Commission’s (FERC) orders denying utilities’ applications for incentive adders, in other words, surcharges or higher wholesale electricity rates, to their return on equity (ROE) for membership in regional transmission organization (RTO), pursuant to FERC rule promulgated under Federal Power Act (FPA), and removing existing RTO adder from only one utility’s rates.

The Court of Appeals held that:

Electricity transmission utilities’ challenge to legality of Federal Energy Regulatory Commission’s (FERC) order, creating incentive adder for utilities that joined regional transmission organization (RTO) in order to permit utilities to charge premium above their baseline returns on equity (ROEs), was not impermissible collateral attack, since reasonable firm in utilities’ position would not have perceived very substantial risk that FERC’s order precluded RTO adder for utilities legally mandated to join RTO, as FERC did not substantially indicate, in either order or on rehearing, any intent to categorically reject applications for adder based on compulsory rather than voluntary RTO membership.

Federal Energy Regulatory Commission’s (FERC) determination, in denying applications of electricity transmission utilities for incentive adders to their return on equity (ROE) for membership in regional transmission organization (RTO), that utilities were ineligible for adders because Ohio law mandated their participation in RTO, comported with FPA that reserved RTO incentive adder for utilities that voluntarily chose to join RTO; consistent with Congress’s goal in FPA of encouraging RTO participation, FERC excluded from receiving adder those utilities that were required to join RTO by state law because higher rate allowed by adder could not incentivize their membership in RTO.

Federal Energy Regulatory Commission’s (FERC) abstention from determining whether FPA preempted Ohio law mandating electricity transmission utilities’ participation in regional transmission organization (RTO), thereby disqualifying them from receiving incentive adders to their returns on equity (ROEs) for voluntary membership in RTO, was not warranted, since FERC’s sudden federalism concerns that prompted its abstention could not be reconciled with its past practices of resolving state law questions at the heart of ratemaking proceedings, FERC had authority to interpret validity of Ohio law as necessary to carry out its ratemaking function, and utilities were asking FERC to ignore Ohio law as preempted in agency ratemaking proceedings, not to invalidate that law writ large.

Ohio law, mandating electricity transmission utilities’ participation in regional transmission organization (RTO), did not stand as obstacle to or frustrate purpose of FPA provision, reserving incentive adder for electricity utilities that voluntarily chose to join RTO, and thus, Ohio law was not preempted as conflicting with FPA, since Congress’s decision not to mandate RTO membership federally in FPA did not imply intent to prevent states from imposing that requirement, especially given that Ohio law furthered Congress’s overall goal of increasing RTO participation.

Ohio law, mandating electricity transmission utilities’ participation in regional transmission organization (RTO), was not preempted by FPA, which did not occupy field of interstate electricity transmission and, instead, explicitly preserved state authority over certain transmission-related areas, including intrastate transmission and facilities supplying electricity to transmitting entity itself; Ohio’s law fit within that scheme because it primarily regulated intrastate transmission.

Federal Energy Regulatory Commission’s (FERC) rejection of electricity transmission utility’s request for incentive adder to its return on equity (ROE) for membership in regional transmission organization (RTO), on ground that utility’s participation in RTO was not voluntary as it was mandated by Ohio law, was not arbitrary and capricious, even though FERC approved similar adders for other utilities participating in same RTO in which utility was member as well as in nearby RTOs, some of which were subject to state RTO membership mandates, since FERC’s differential treatment of utility was justifiable in that other members of RTO in which utility participated operated within state statutory schemes that did not mandate RTO participation.

Federal Energy Regulatory Commission’s (FERC) rejection of electricity transmission utility’s request for incentive adder to its return on equity (ROE) for membership in regional transmission organization (RTO), on ground that utility’s participation in RTO was not voluntary as it was mandated by Ohio law, was not arbitrary or capricious due to utility’s market disadvantage, particularly for capital improvements, without RTO adder, since neither FPA nor FERC’s rule, creating adder for utilities that joined RTO which permitted them to charge premium above their baseline ROEs, required FERC to resolve economic disparities, and adder’s purpose was not to ensure competitiveness or capital attraction.

Federal Energy Regulatory Commission (FERC) was permitted to revoke incentive adder given to electricity transmission utility for participating in regional transmission organization (RTO), without concluding utility’s overall rate of return on equity (ROE) plus adder was unjust and unreasonable, under FPA, providing that whenever FERC found any “rate, charge, or classification,” or “any rule, regulation, [or] practice” was “unjust, unreasonable, unduly discriminatory or preferential,” FERC “shall determine the just and reasonable” rate, charge, rule, or practice and “shall fix [it] by order,” since FERC found that its practice of granting RTO adders to Ohio utilities was wrong as their participation in RTO was mandated by Ohio law, not voluntary, so FERC “fixed it” by removing their adders.

Federal Energy Regulatory Commission (FERC) arbitrarily and capriciously removed incentive adder from only one of three electricity transmission utilities, whose participation in regional transmission organization (RTO) was mandated by Ohio law, rather than voluntary as required for utilities to qualify for RTO incentive adder, under FPA, even though FERC determined that three utilities were not similarly situated in that FERC could easily excise its approval of one utility’s adder, while removing adders from other two utilities would require disentangling them from multi-issue settlements, since settlements acknowledged that two utilities included 50-basis-point RTO adders, and other utility’s rate had 50-basis-point RTO adder that similarly paralleled rates of those two utilities.

Federal Energy Regulatory Commission’s (FERC) prior conclusion, in two-decades-old order from different context, that electricity transmission utility’s parent company voluntarily integrated into regional transmission organization (RTO) under Public Utilities Regulatory Policy Act (PURPA) and Virginia law, did not estop FERC, under doctrine of regulatory estoppel, from finding that utility did not voluntarily join RTO because Ohio law mandated utility’s membership in RTO, since inquiries were distinct and justifiably led to different conclusions, especially considering developments in law from two decades prior.




IMMUNITY - ALABAMA

Ex parte Scott

Supreme Court of Alabama - January 10, 2025 - So.3d - 2025 WL 63936

Residential landlords filed against city a class-action complaint that challenged city ordinance that required certificates of occupancy and inspections for rental properties.

After city repealed the ordinance following entry of a preliminary injunction, landlords filed an amended complaint that added as defendants, in their individual and representative capacities, the city’s mayor, the president of the city council, and former council president and that sought damages from those officials due to the officials’ enactment of the ordinance in the first place.

The Circuit Court denied the officials’ motion to dismiss. Officials petitioned for a writ of mandamus.

The Supreme Court held that:




CHARTER SCHOOLS - CALIFORNIA

Alliance Marc & Eva Stern Math and Science High School v. Public Employment Relations Board

Court of Appeal, Second District, Division 2, California - December 26, 2024 - Cal.Rptr.3d - 2024 WL 5231678

Eleven public charter schools filed a petition for writ of extraordinary relief from order issued by Public Employment Relations Board (PERB) finding that schools violated Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD) statute and ordering schools to cease and desist from doing so.

After the Court of Appeal denied the petition, schools filed a petition for review in the Supreme Court, which granted the petition and transferred the matter back to the Court of Appeal.

The Court of Appeal held that:




PUBLIC UTILITIES - COLORADO

Holcim U.S. Inc. v. Colorado Public Utilities Commission

Supreme Court of Colorado - January 13, 2025 - P.3d - 2025 WL 77772 - 2025 CO 1

Large retail electric customer sought judicial review of Public Utilities Commission’s (PUC) approval of electric utility’s method for recovering extraordinary natural gas costs incurred during severe winter storm through uniform volumetric charge on all customers over two years.

The District Court affirmed PUC’s decision. Customer appealed.

The Supreme Court held that PUC adopted “just and reasonable rate” by approving utility’s cost recovery method.

Public Utilities Commission (PUC) adopted “just and reasonable rate” by approving electric utility’s method for recovering extraordinary natural gas costs incurred during severe winter storm through uniform volumetric charge on all customers over two years; method accurately reflected cost of service because utility had purchased natural gas based on total forecasted customer need, not based on actual individual consumption during winter storm, method would allow utility to recover costs it had incurred in anticipation of winter storm in exactly same way that it recovered its normal fuel costs, customers’ ultimate billing would appropriately be based on their individual usage, and method would provide utility with reasonable rate of return.




EMINENT DOMAIN - KENTUCKY

Transportation Cabinet, Department of Highways v. Atkinson

Supreme Court of Kentucky - December 19, 2024 - S.W.3d - 2024 WL 5174259

Transportation Cabinet, Department of Highways, filed condemnation petition against property owners, who had entered into coal lease with company, which granted company right to mine property’s coal in exchange for royalty payments, seeking to condemn fee simple title to portion of property to complete highway construction.

Following a jury trial, the Circuit Court entered judgment in which jury awarded owners $550,000 as just compensation for the Cabinet’s condemnation of their property. Cabinet appealed, and the Court of Appeals affirmed. Cabinet moved for discretionary review, which was granted.

The Supreme Court held that expert witness’s testimony valuing condemned property’s fair market value pre-condemnation did not run afoul of prohibition on price-per-unit evidence, and thus was admissible.

A valuation of condemned property’s fair market value under income capitalization approach based on an elementary “price per unit” calculation, in which the quantity of minerals in the ground is estimated and then that figure is multiplied by the market price of the mineral to calculate a gross income to be derived from the condemned property, is irrelevant and inadmissible because it fails to account for the contingencies and uncertainties of business.

Expert witness’s testimony valuing condemned property’s fair market value at $2.1 million pre-condemnation under income capitalization approach did not afoul of prohibition on price-per-unit evidence, and thus was admissible, in condemnation proceeding brought by Transportation Cabinet, Department of Highways, against property owners, seeking to condemn fee simple title to portion of property to complete highway construction; expert’s testimony made clear that he appropriately endeavored to consider contingencies and uncertainties of business while estimating fair market value of owners’ property, he contemplated that not all of property’s subsurface coal could have been feasibly mined and sold, and accounted for risk and inflation to calculate a net present value of owners’ expected income stream.




STANDING - MINNESOTA

Clapp v. Sayles-Adams

Supreme Court of Minnesota - January 8, 2025 - N.W.3d - 2025 WL 45219

Taxpayer, a homeowner, brought action seeking declaratory and injunctive relief against public school district as well as its superintendent, in her official capacity, and the city’s board of education, alleging provisions in the teachers’ union collective bargaining agreement (CBA) that provided preferences based on race and ethnicity violated Minnesota Constitution’s Equal Protection Clause.

The District Court granted defendants’ motion to dismiss for lack of standing and ripeness. Taxpayer appealed. The Court of Appeals reversed. Defendants petitioned for review, which was granted by Supreme Court.

The Supreme Court held that taxpayer lacked taxpayer standing to bring action.

The disbursement of public funds to implement and monitor compliance with provisions in teachers’ union collective bargaining agreement (CBA) that provided preferences based on race and ethnicity was merely incidental to claim of taxpayer, a homeowner, that provisions violated Minnesota Constitution’s Equal Protection Clause and, thus, taxpayer lacked taxpayer standing to bring action seeking declaratory and injunctive relief against public school district as well as its superintendent, in her official capacity, and the city’s board of education in connection with claim; although funds could be used to implement provisions, they were merely incidental to substantive governmental action taxpayer sought to challenge.




REFERENDA - MONTANA

Cottonwood Environmental Law Center v. State

Supreme Court of Montana - December 18, 2024 - P.3d - 2024 WL 5150626 - 2024 MT 313

Environmental organization brought action seeking declaration that statute limiting the right of local citizen initiatives to regulate auxiliary containers facially violated the state constitutional provision governing initiative and referendum.

The District Court granted organization’s motion for partial summary judgment, and certified order as final. State appealed.

The Supreme Court held that statute did not facially violate the state constitutional provision governing initiative and referendum.




ZONING & PLANNING - TEXAS

Keenan v. Robin

Supreme Court of Texas - December 31, 2024 - S.W.3d - 2024 WL 5249568

Subdivision lot owners brought action against owners of cattle ranch which occupied remaining subdivision lots, alleging trespass by cattle, as well as a claim for malicious prosecution, and requesting declaratory and injunctive relief regarding ranch owners’ erection of fences, gates, or other obstructions across subdivision streets.

The District Court granted ranch owners’ motion for summary judgment. Subdivision lot owners appealed, and the Amarillo Court of Appeals affirmed in part and reversed in part. The Supreme Court granted a petition for review.

The Supreme Court held that:




IMMUNITY - TEXAS

City of Austin v. Powell

Supreme Court of Texas - December 31, 2024 - S.W.3d - 2024 WL 5249451

Motorist, who was injured when police officer involved in high-speed chase collided with motorist’s vehicle, brought action against city to recover damages for his injuries.

The 353rd District Court, Travis County, denied city’s plea to the jurisdiction. City appealed. The Austin Court of Appeals affirmed. The Supreme Court granted city’s petition for review.

The Supreme Court held that:




EMINENT DOMAIN - LOUISIANA

Tessier v. City of Denham Springs

Court of Appeal of Louisiana, First Circuit - December 3, 2024 - So.3d - 2024 WL 4942841 - 2024-0351 (La.App. 1 Cir. 12/3/24)

Property owner appealed city council’s order of condemnation of his buildings for demolition due to being in a dangerous and/or unsafe condition.

The District Court affirmed order of condemnation and subsequently denied owner’s motion for a new trial. Owner appealed.

The Court of Appeal held that:




POLITICAL SUBDIVISIONS - MASSACHUSETTS

Attorney General v. Town of Milton

Supreme Judicial Court of Massachusetts, Suffolk - January 8, 2025 - N.E.3d - 2025 WL 44969

Attorney General brought action against town and its building commissioner seeking declaratory and injunctive relief to enforce compliance with Massachusetts Bay Transportation Authority (MBTA) Communities Act.

Town filed counterclaim against Attorney General and Executive Office of Housing and Livable Communities (HLC) seeking declaratory relief, challenging constitutionality of MBTA Communities Act and HLC’s promulgation of guidelines under the Act. Single justice of the court reserved and reported the case to the full court.

The Supreme Judicial Court held that:

Legislature did not vest Executive Office of Housing and Livable Communities (HLC) with power to make fundamental policy decisions in Massachusetts Bay Transportation Authority (MBTA) Communities Act, and thus Act did not violate separation of powers doctrine, despite fact that it tasked HLC with determining whether a city or town complied with Act’s requirement that MBTA communities have at least one zoning district of reasonable size in which multifamily housing was permitted as of right; language of Act made policy goal plain, Act defined a “district of reasonable size,” sufficiently demarcating boundaries of regulatory discretion, Act permitted subject-matter experts to tailor guidelines to fit actual conditions of each MBTA community, and Act provided intelligible principles to guide HLC in exercising its authority and required consultation with three other agencies.

Attorney General had authority to enforce Massachusetts Bay Transportation Authority (MBTA) Communities Act, which required that MBTA communities have at least one zoning district of reasonable size in which multifamily housing was permitted as of right; although Act did not refer to any such power, Attorney General had broad authority to act in the public interest and public had interest in enforcement of Act.

Fact that Massachusetts Bay Transportation Authority (MBTA) Communities Act included consequences for noncompliance with requirement that MBTA communities have at least one zoning district of reasonable size in which multifamily housing was permitted as of right did not preclude Attorney General from bringing enforcement action against town that failed to pass ordinance creating multifamily housing zoning district; only consequence to a town of failing to comply with Act would be loss of certain funding opportunities if Attorney General could not bring enforcement actions, leaving towns free to ignore Act’s purpose of creating more opportunities for multifamily housing in areas benefiting from MBTA services, and turning legislative mandate into a matter of fiscal choice.

Executive Office of Housing and Livable Communities’ (HLC) guidelines issued under Massachusetts Bay Transportation Authority (MBTA) Communities Act interpreted and implemented the Act, which required that MBTA communities have at least one zoning district of reasonable size in which multifamily housing was permitted as of right, and thus were subject to Administrative Procedure Act (APA) requirements, despite fact that Act referred to “guidelines” rather than “regulations;” guidelines categorized communities and detailed what each category had to do to be in compliance with Act, guidelines explained what it meant to allow multifamily housing “as of right,” and established deadlines by which communities had to submit compliance applications to HLC.

Executive Office of Housing and Livable Communities’ (HLC) promulgation of guidelines implementing Massachusetts Bay Transportation Authority (MBTA) Communities Act was not done in compliance with Administrative Procedure Act (APA), and thus guidelines were legally ineffective, despite HLC’s claim it substantially complied with APA; HLC admitted that it failed to file a notice of proposed regulation with the Secretary of the Commonwealth and that it failed to prepare a small business impact statement, as required by APA, and strict compliance with APA was required.




EMINENT DOMAIN - MISSOURI

Becker v. City of Hillsboro, Missouri

United States Court of Appeals, Eighth Circuit - January 7, 2025 - F.4th - 2025 WL 38068

Owners of 176 acres of land annexed to city brought action in state court against city for inverse condemnation under federal and state constitutions and violations of their constitutional rights under § 1983, based on allegations that they had been deprived of any and all economical and productive use of the property as result of city ordinances requiring them to connect to city water services at their own cost.

Following removal, both sides moved for summary judgment. The United States District Court for the Eastern District of Missouri entered summary judgment for city. Landowners appealed.

The Court of Appeals held that:




EMINENT DOMAIN - MONTANA

Flathead Properties, L.L.C. v. Flathead County

Supreme Court of Montana - December 31, 2024 - P.3d - 2024 WL 5252097 - 2024 MT 323

Landowner brought inverse condemnation action against county, alleging that court-ordered removal of landowner’s bridge, which landowner built pursuant to county permit that was later held void ab initio in litigation under Montana Lakeshore Protection Act, constituted a taking requiring just compensation.

The District Court granted county’s motion to dismiss for failure to state a claim. Landowner appealed.

The Supreme Court held that:

Landowner stated a claim for inverse condemnation against county by alleging that landowner built bridge to portion of its lakeshore property in reliance on permit deliberately issued by county, that permit was later held to be void ab initio in litigation under Montana Lakeshore Protection Act, that landowner obtained a vested property right in bridge as a physical structure under remedial provision of Act, that landowner removed bridge pursuant to court order, that county created a public improvement through bridge via increase in property values, and that removal of bridge caused damages to landowner’s property.

Landowner stated a claim for a regulatory taking against county by alleging that landowner built bridge to portion of its lakeshore property in reliance on permit deliberately issued by county, that permit was later held to be void ab initio in litigation under Montana Lakeshore Protection Act, that landowner obtained a vested property right in bridge as a physical structure under remedial provision of Act, that bridge added value to landowner’s property, that removal of bridge pursuant to court order deprived landowner of all use of bridge, and that landowner relied on permit to expend money and construct bridge.




SCHOOL DISTRICTS - NEW JERSEY

I/M/O Proposed Creation of PK-12 All-Purpose Regional School District by Borough of Sea Bright

Superior Court of New Jersey, Appellate Division - November 26, 2024 - A.3d - 2024 WL 4886708

Two school districts with which municipality’s nonoperating school district had merged sought review of Commissioner of Education’s determination that municipality had standing to withdraw from merged districts and to petition to join newly-formed all-purpose regional school district.

As matters of first impression, the Superior Court, Appellate Division, held that:

Despite its merger with other school districts, municipality’s nonoperating school district continued to exist as a separate local school district with standing to withdraw from its merger; nonoperating district’s merger was part of legislative mandate to encourage financial accountability and the reduction of duplicative services through consolidation and regionalization of school districts, but nonoperating district retained its status as a local school district with sovereignty separate from merged districts.

Municipality’s governing body was entitled to stand in the place of a board of education for its nonoperating school district for purposes of determining whether to withdraw nonoperating district from limited purpose regional district or consolidated district; statutory definition of “governing body” included the governing body of a municipality constituting a constituent district which lacked a board of education.

Statutory provisions for withdrawing from a regional school district applied to nonoperating district that had merged with other districts, where statutes provided that nonoperating district was to be treated as a constitute district of a consolidated or regional district.




TOLLS - RHODE ISLAND

American Trucking Associations, Inc. v. Rhode Island Turnpike and Bridge Authority

United States Court of Appeals, First Circuit - December 6, 2024 - 123 F.4th 27

Association representing trucking industry and trucking companies brought action against Rhode Island Turnpike and Bridge Authority as well as Director of Rhode Island Department of Transportation (RIDOT), alleging Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act, which imposed tolls on tractor-trailers to fund repair of Rhode Island’s bridges, violated dormant Commerce Clause.

After bench trial, the United States District Court entered judgment for plaintiffs which, inter alia, permanently enjoined imposition of tolls under Act. Defendants appealed.

The Court of Appeals held that:

Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act, which imposed tolls on tractor-trailers to fund repair of Rhode Island’s bridges, did not effectively discriminate against interstate commerce, so as to violate dormant Commerce Clause, by exempting single-unit trucks from its tolls, as tractor-trailers and single-unit trucks were not “similarly situated”; exemption for single-unit trucks provided no competitive advantage to in-state competitors at expense of out-of-state competitors that used tractor-trailers, and there was no evidence demonstrating an increase in Rhode Island-based companies’ use of un-tolled trucks, changes in vehicle fleets, or diversion, or that smaller trucks competed in same market as tractor-trailers.

Even if out-of-state tractor-trailers and in-state single-unit trucks were “similarly situated” with each other for dormant Commerce Clause purposes, they did not indirectly compete with each other and, thus, Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act, which imposed tolls on tractor-trailers to fund repair of Rhode Island’s bridges, did not effectively discriminate against interstate commerce, so as to violate dormant Commerce Clause, by exempting single-unit trucks from its tolls.

Provisions of Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act establishing caps on tolls paid by tractor-trailers to use bridges along major interstate and state highway corridors provided disproportionate competitive advantage to in-state tractor-trailers as compared to those from out-of-state and, thus, provisions were discriminatory in violation of dormant Commerce Clause; Act created hybrid model of usage-based toll that was capped after certain number of gantries were passed and then was reset daily, and even though out-of-state and in-state tractor-trailers could both benefit from caps, 39.9 percent of the reductions in what the tolls would have been but for the caps went to Rhode Island intra-state tractor-trailers, even though they accounted for only 18.6 percent of the transactions.

Provision of Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act exempting single-unit and smaller trucks from tolls paid by tractor-trailers to use bridges along major interstate and state highway corridors “fairly approximated” use of and damage caused by tractor-trailers to state’s bridges and, thus, exemption did not violate dormant Commerce Clause, as it was not “wholly unreasonable” for Rhode Island legislature to rely on certain studies in concluding tractor-trailers caused in excess of 70 percent of damage to state’s transportation infrastructure on an annual basis; having so found, legislature granted state Department of Transportation (RIDOT) the authority to collect tolls on large commercial trucks only, with tolls to be fixed after conducting a cost-benefit analysis, based on costs of replacement, reconstruction, maintenance, and operation of Rhode Island’s system of bridges.

Even assuming Rhode Island equated “use” of its bridges with bridge “damage,” and assuming Rhode Island could show tractor-trailers caused most damage to its bridges, under Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act, which imposed tolls on tractor-trailers to fund bridge repairs, state was not required to also impose tolls on all users having more than “negligible” impact on tolled facilities in order for Act’s exemption for single-unit and smaller trucks from tolls to “fairly approximate” use of bridges and comport with dormant Commerce Clause; Rhode Island concluded with at least some reason that tractor-trailers caused most wear and tear to its bridges and, thus, could collect a toll from most intensive users without also having to collect a toll from lesser users, and charging only largest trucks in reliance on pre-existing federal vehicle classification system was more administrable than charging each of tens of thousands of smaller vehicles.

Provisions of Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act establishing caps on tolls paid by tractor-trailers to use bridges along major interstate and state highway corridors, which violated dormant Commerce Clause, were severable from rest of Act; invalidating entire Act based on nothing more than unconstitutionality of caps would cut against legislature’s resolve to raise funds for its bridges and its stated preference for, wherever possible, only excising the Act’s defective provisions through its inclusion of express severability provision.

 

 




EMINENT DOMAIN - TEXAS

Litinas v. City of Houston

Court of Appeals of Texas, Houston (14th Dist.) - December 5, 2024 - S.W.3d - 2024 WL 4982561

Landowner brought inverse condemnation action against city and local redevelopment authority, alleging that road and sidewalk modifications to accommodate bicycle lane and new sidewalk as part of capital improvement program would eliminate head-in parking for landowner’s flower shop.

City filed plea to jurisdiction, arguing that landowner failed to plead or prove actionable vested property interest to pursue inverse condemnation claim. The County Civil Court at Law sustained the plea to the jurisdiction, and landowner appealed.

The Court of Appeals held that landowner sufficiently alleged that construction project would materially and substantially impair access to the shop.

Landowner sufficiently alleged that road construction project, which would eliminate head-in parking at landowner’s fast-service florist shop, materially and substantially impaired access to the shop, as required to survive city’s plea to the jurisdiction to landowner’s inverse condemnation claim; while landowner had alternate access points to the shop, and also had a spillover parking lot across the street, overall impact of the curbing and other improvements effectively eliminated virtually all store-front head-in parking spots on the lot with the flower shop, and landowner alleged that head-in parking was critical to servicing repeat customers and impulse buyers.




BOND DEFAULT AND RECEIVERSHIP - ARIZONA

UMB Bank NA v. Harvest Gold Silica Incorporated

United States District Court, D. Arizona - December 4, 2024 - Slip Copy - 2024 WL 4972002

After Defendant defaulted on $22 million in revenue bonds issued by the Arizona Industrial Development Authority for the purpose of running a facility to turn tailings from gold mines into silica products, trustee UMB bank brought an action for receivership.

Defendant proceeded to appeal the appointment of the receiver and the impending liquidation of the operation, filed for bankruptcy in various other jurisdictions and engaged in a variety of procedural shenanigans.

The District Court ultimately held that the Defendants had not carried their burden to justify a stay and granted sanctions.




IMMUNITY - UTAH

Mariani v. Utah Department of Public Safety-Driver License Division

Supreme Court of Utah - December 19, 2024 - P.3d - 2024 WL 5162622 - 2024 UT 44

Motorist brought negligence action against Utah Department of Public Safety-Driver License Division (DLD) for injuries sustained when her scooter crashed during skills test for motorcycle endorsement on her driver’s license.

DLD moved for summary judgment. The Third District Court granted motion based on licensing exception to waiver of immunity in Governmental Immunity Act (GIA), and motorist appealed. The Court of Appeals affirmed. Certiorari was granted.

The Supreme Court held that:




SHORT TERM RENTALS - MAINE

15 Langsford Owner LLC v. Town of Kennebunkport

Supreme Judicial Court of Maine - December 19, 2024 - A.3d - 2024 WL 5162050 - 2024 ME 79

Applicant for short-term rental licenses for condominium units filed complaints pursuant to rule governing review of agency action and Uniform Declaratory Judgments Act seeking review of decision by town code enforcement officer denying applications.

The Superior Court vacated denial of applications. Town appealed.

The Supreme Judicial Court held that:




THE VRDOS ARE BACK IN TOWN! - NEW JERSEY

State of New Jersey ex rel. Edelweiss Fund LLC, v. JPMorgan Chase, et. al.

Superior Court of New Jersey, Appellate Division - December 27, 2024 - Not Reported in Atl. Rptr - 2024 WL 5231309

A Murders Row of commercial banks came together to fight an action brought by municipal advisor on behalf of the State of New Jersey, claiming that the banks – in connection with their resetting of interest rates of variable-rate, tax-exempt municipal bonds – defrauded the State of more than $100 million.

Essentially just the standard-issue claims from about a decade ago that had gone nowhere.

The Appellate Court dismissed the claim on the grounds (inter alia) that the information relied upon by plaintiffs to establish their robo-setting claims was at all times publicly-accessable and available to plaintiffs.




POLITICAL SUBDIVISIONS - NORTH DAKOTA

City of Fargo v. State

Supreme Court of North Dakota - December 19, 2024 - N.W.3d - 2024 WL 5162049 - 2024 ND 236

City brought declaratory judgment action against State, seeking declaration that amended statutes limiting authority of political subdivisions regarding firearms and ammunition were unconstitutional, or alternatively, that amended statutes did not void two city zoning ordinances prohibiting firearm and ammunition sales.

The District Court granted State’s motion for summary judgment, and denied city’s motion for summary judgment. City appealed.

The Supreme Court held that:




ZONING & PLANNING - NORTH DAKOTA

Cass County v. KNB Properties LLC

Supreme Court of North Dakota - December 19, 2024 - N.W.3d - 2024 WL 5165068 - 2024 ND 226

Home rule county brought action against owners of parcels in township, alleging that they had violated county’s subdivision ordinance, which specified watercourse setbacks. Owners filed counterclaim, alleging selective enforcement of the subdivision ordinance and seeking a permanent injunction prohibiting county form enforcing ordinance against them.

The District Court entered summary judgment for county, granted county permanent injunctive relief, dismissed landowners’ counterclaim with prejudice, and denied landowners’ motion to alter or amend judgment. Owners appealed.

The Supreme Court held that:




MUNICIPAL ORDINANCE - IOWA

Singer v. City of Orange City

Supreme Court of Iowa - December 20, 2024 - N.W.3d - 2024 WL 5173252

Certain owners and renters of rental units brought action against city, asserting facial challenge against city ordinance requiring periodic inspections of rental properties and allowing inspector to obtain an administrative search warrant to search rental unit if entry was refused, claiming that ordinance’s mandatory inspection regime violated state constitution’s search and seizure provision, and seeking injunctive relief and nominal damages.

On cross-motions for summary judgment, the District Court denied city’s motion for summary judgment and granted owners and renters’ motion for summary judgment, and permanently enjoined city from seeking administrative warrant to conduct inspections authorized under the current language of the ordinance. City appealed.

The Supreme Court held that city ordinance requiring periodic inspections of rental properties and allowing inspector to obtain an administrative search warrant to search rental unit if entry was refused was not facially unconstitutional under state constitution’s search and seizure provision.

City ordinance requiring periodic inspections of rental properties and allowing inspector to obtain an administrative search warrant to search rental unit if entry was refused was not facially unconstitutional under state constitution’s search and seizure provision, in action brought by certain owners and renters of rental units against city; although owners and renters emphasized situations where traditional probable cause would have been absent, there were circumstances where traditional probable cause would be present, warrants were not city’s only option as the ordinance authorized city to pursue legal options that did not involve warrants, and ordinance required inspections of rental properties, it did not require that a city official perform those inspections.




LIABILITY - LOUISIANA

Klumpp v. Ochsner Clinic Foundation

Court of Appeal of Louisiana, Fifth Circuit - December 18, 2024 - So.3d - 2024 WL 5151093 - 24-175 (La.App. 5 Cir. 12/18/24)

Pedestrian and his wife brought action against health clinic to recover damages from injuries that pedestrian allegedly sustained when he tripped on the concrete base of a handicap sign, which was elevated and encroached upon the sidewalk, and fell in the clinic’s parking lot.

The District Court granted clinic’s motion for summary judgment. Plaintiffs appealed.

The Court of Appeal held that:




PROJECT FINANCE - TEXAS

Cottonwood Development Corporation v. Preston Hollow Capital, LLC

Court of Appeals of Texas, Austin (3rd Dist.) - November 27, 2024 - S.W.3d - 2024 WL 4906771

Title company filed interpleader action against lender and borrower, a local-government corporation, seeking order to deposit certain escrowed funds into court registry, borrower filed counterclaim against company for conversion, third-party claim against law firm retained by lender for conversion, civil conspiracy, and declaratory relief, and cross-claim against lender for breach of contract, violation of the Texas Open Meetings Act (TOMA), and declaratory relief under the Uniform Declaratory Judgments Act (UDJA), and lender filed cross-claims against borrower for breach of contract, and declaratory relief under the UDJA.

The 368th District Court granted firm summary judgment as to borrower’s third-party claim, granted lender summary judgment as to its cross-claims, and awarded lender attorney fees, subsequently, the trial court denied borrower’s motion to reconsider, then denied borrower’s combined plea in bar and motion for summary judgment, next granted lender’s motion for summary judgment on all remaining issues involving borrower, and finally, issued final judgment and order of foreclosure, and granted borrower’s motion to sever its claims against lender and firm from company’s interpleader action. Thereafter, the trial court denied borrower’s motion to set aside deeds of trust, to place certain funds in court registry, and for temporary and permanent injunction suspending order of sale.

Borrower appealed.

The Court of Appeals held that:

Borrower, a local-government corporation, waived for appellate review its challenges to the trial court’s orders denying borrower’s motion to strike intervenor’s petition in intervention, denying borrower’s motion to set aside deeds of trust, and denying borrower’s motion for temporary and permanent Injunction preventing the issuance of an order of sale of mortgaged property, in action in which lender asserted cross-claims for breach of contract and declaratory judgment that it was the lawful owner of advanced funds held in escrow, that it was legally entitled to foreclose on mortgaged property, and that the loan agreement and all other loan documents were valid and enforceable, where the arguments did not appear in borrower’s appellate brief.

Judgment was not rendered as to lender’s state-law claims by a court of competent jurisdiction after lender’s only federal-law claim was dismissed in lender’s prior action in federal court, as required for the federal judgment to be res judicata, in action in which lender asserted cross-claims against borrower for breach of contract and declaratory relief as to the validity of a lending agreement; federal judge would clearly have declined to exercise discretionary pendent jurisdiction over the state-law claims, as the judge expressly declined to exercise supplemental jurisdiction over the state-law claims when dismissing the federal claim, and the same judge declined to exercise jurisdiction over potential or pleaded state-law claims after dismissing federal-law claims in nine other cases.

Lender’s alleged statement in a prior federal action that the contracts underlying its lending agreement with borrower were void were not res judicata on the basis that the statement was a judicial admission, in action in which lender asserted cross-claims against borrower for breach of contract and declaratory relief as to the validity of the lending agreement; statement was not a judicial admission, as the statement was about a question of law for the court, and was not a fact that could be admitted.

Borrower, a local-government corporation created by city, lacked authority to bring an action based on its own and city’s alleged violations of the Texas Open Meetings Act (TOMA) under TOMA provision authorizing an interested person to bring an action by injunction to reverse a violation of TOMA by members of a governmental body, as would support borrower’s claim that the TOMA violations voided documents governing lender’s loan of funds to borrower for a development project; statute distinguished between the “interested person” who could bring an action and the “members of a governmental body” who were the subjects of that action.

Borrower, a local-government corporation created by city, failed to preserve for appellate review its argument that it was entitled to summary judgment as to lender’s cross-claims for breach of contract and declaratory judgment because the term sheet prepared in preparation for a loan agreement for a development project was void ab initio on the basis that it required illegal contract zoning, in action alleging lender was the lawful owner of advanced funds held in escrow, that it was legally entitled to foreclose on mortgaged property, and that the loan agreement and all other loan documents were valid and enforceable, where borrower’s petition failed to plead any claim against lender alleging invalidity of the term sheet because it required “contract zoning.”

Loan documents governing the terms of lender’s loan of funds for a development project to borrower, a local-government corporation, were not void ab initio on the basis that city had made illegal delegations of authority to city manager, in action in which lender asserted cross-claims against borrower for breach of contract and declaratory judgment that it was the lawful owner of advanced funds held in escrow, that it was legally entitled to foreclose on mortgaged property, and that the loan agreement and all other loan documents were valid and enforceable; even if city had illegally delegated authority to the manager, the documents were executed by city’s mayor and a city board member for corporation as the contracting party after the manager separated from city.

Agreement and related documents governing the terms of lender’s loan of funds for a development project to borrower, a local-government corporation, were not void ab initio on the basis that lender failed to secure the Attorney General’s approval of the note in violation of the Transportation Code, in action in which lender asserted cross-claims against borrower for breach of contract and declaratory judgment that it was the lawful owner of advanced funds held in escrow, that it was legally entitled to foreclose on mortgaged property, and that the loan agreement and all other loan documents were valid and enforceable; statute provided no consequence for failing to submit a note, but rather merely provided that a note could not be contested if the Attorney General approved it.

Lender did not materially breach the terms of the agreement for the loan of $35 million to borrower, a local-government corporation, by only tendering approximately $12.5 million of a promised $15 million advance and by failing to release from escrow the remaining funds, in action in which lender asserted cross-claims against borrower for breach of contract and declaratory judgment that it lawfully owned the escrowed funds, that it was legally entitled to foreclose on mortgaged property, and that the loan agreement and all other loan documents were valid and enforceable; lender disbursed the full $15 million into escrow for borrower’s benefit at closing, consistent with the agreement, and city and corporation’s representatives agreed that approximately $2.5 million could remain in escrow.

Conduct of attorney of firm representing lender, who instructed title company to pay $60,000 of attorney’s fees to firm out of an initial advance to borrower of $15 million distributed pursuant to a loan agreement, was within the scope of firm’s representation, and, thus, attorney immunity applied to bar borrower’s claims against firm for conversion, civil conspiracy, and declaratory judgment that firm was in wrongful and illegal possession of the attorney fee funds, and that such funds should be repatriated and transferred to borrower, where lender’s attorney drafted a letter stating that the attorney fees were to be paid from borrower’s funds, and borrower’s attorney reviewed the letter and confirmed to company that the fees would be taken out of the initial advance.




EMINENT DOMAIN - VERMONT

Agency of Transportation v. Timberlake Associates, LLC

Supreme Court of Vermont - December 13, 2024 - A.3d - 2024 WL 5100560 - 2024 VT 83

Agency of Transportation (AOT) filed complaint seeking a determination of necessity for the proposed highway interchange project that would involve taking private land.

The Superior Court determined that the taking was necessary and that AOT satisfied its pre-suit obligation to negotiate with landowner. Landowner appealed.

The Supreme Court held that:




PUBLIC RECORDS - WASHINGTON

Valderrama v. City of Sammamish

Court of Appeals of Washington, Division 1 - December 16, 2024 - P.3d - 2024 WL 5116865

Requester, a former city council member, brought action alleging city violated Public Records Act (PRA) by failing to adequately search for and produce records of communications between certain current and former council members and city residents stored on council members’ personal electronic devices.

City brought motion for summary judgment and requester brought motion for partial summary judgment. The Superior Court, King County, Paul M. Crisalli, J., granted city’s motion and denied requester’s motion. Requester appealed.

The Court of Appeals held that:




PUBLIC RECORDS - WEST VIRGINIA

Town of South Hill v. Hawkins

Court of Appeals of Virginia - December 10, 2024 - 82 Va.App. 801 - 908 S.E.2d 920

Requester, who sought documents from town pursuant to Virginia Freedom of Information Act (VFOIA), petitioned for writ of mandamus after town produced responsive documents from one category of documents requested but indicated there were no nonexempt responsive documents for other categories, seeking to compel town to produce remaining documents.

The Mecklenburg Circuit Court granted writ as to two of seven documents at issue and determined town properly withheld others. The Supreme Court reversed and remanded for further proceedings, and on remand the Circuit Court ordered that previously-withheld documents be produced with minimal redactions and determined requester was entitled to costs, but not attorney fees. Town appealed, and requester cross-appealed.

The Court of Appeals held that:




UTILITY FEES - GEORGIA

Hollis v. City of LaGrange

Supreme Court of Georgia - December 10, 2024 - S.E.2d - 2024 WL 5048735

City residents brought putative class action against city alleging it imposed excessive mandatory charges for utilities services that constituted unauthorized tax under state constitution.

The Superior Court granted city’s motion for judgment on the pleadings. Residents appealed.

The Supreme Court held that constitutional provision prohibiting the General Assembly from regulating or fixing municipal public utilities charges did not prevent judicial review of residents’ complaint.

Constitutional provision prohibiting the General Assembly from regulating or fixing charges of public utilities owned or operated by any county or municipality did not prevent trial court from reviewing putative class action complaint by city residents alleging that mandatory charges for utilities services provided by city that were in excess of actual cost of providing such services and used to generate general revenue for city constituted illegal tax; constitutional provision did not mention judicial branch at all, and residents’ claims would not require trial court to regulate or fix city’s utilities charges as matter of discretionary policymaking, but rather, claims asked trial court to exercise its judicial authority to determine whether charges were in fact taxes in the first place.




PUBLIC RECORDS - OHIO

State ex rel. Copley Ohio Newspapers, Inc. v. Akron

Supreme Court of Ohio - December 6, 2024 - N.E.3d - 2024 WL 4996423 - 2024-Ohio-5677

Newspaper filed a mandamus action seeking to compel city to produce public records without redaction of names of officers involved in lethal use of force incidents, and sought awards of statutory damages, court costs, and attorney fees.

The Supreme Court held that:




PUBLIC EMPLOYMENT - TEXAS

City of Buffalo v. Moliere

Supreme Court of Texas - December 13, 2024 - S.W.3d - 2024 WL 5099112

Police officer brought action against city, mayor, and city council members, seeking declaration that city council acted without authority in terminating his employment, and alleging termination violated his due process rights.

The 278th District Court granted city’s and mayor’s plea to the jurisdiction and dismissed all claims against them and sua sponte dismissed claims against city council members. Officer appealed.

The Waco Court of Appeals reversed and remanded. City and mayor petitioned for review.

The Supreme Court held that city council had authority to terminate police officer, and thus officer’s termination was not ultra vires and his action challenging his termination was barred by governmental immunity.

City council had authority to terminate police officer for violation of police department policy, under local government code provision governing the creation and regulation of municipal police forces, and thus officer’s termination was not ultra vires and his action challenging his termination was barred by governmental immunity; grant of power to regulate the police force necessarily included ability to terminate officers, and although city had not adopted optional ordinance providing that officers served at the pleasure of the governing body, such an ordinance was necessary only to permit termination without cause, and officer was terminated for cause.




ZONING & PLANNING - VERMONT

In re Cathedral of Immaculate Parish Charitable Trust Appeal

Supreme Court of Vermont - December 6, 2024 - A.3d - 2024 WL 4998077 - 2024 VT 77

City residents appealed city development review board’s decision granting religious organization’s application for permit to demolish church buildings on its property.

After denying residents’ motion to compel discovery regarding organization’s pending sale of property to nonreligious prospective purchaser, the Superior Court, Environmental Division, granted organization’s motion for summary judgment and denied residents’ cross-motion for summary judgment. Residents appealed.

The Supreme Court held that:




EMINENT DOMAIN - IOWA

Brendeland v. Iowa Department of Transportation

Supreme Court of Iowa - November 22, 2024 - N.W.3d - 2024 WL 4862386

Landowners brought action against Department of Transportation (DOT) to block condemnation of their property for project to reconstruct and modernize interchange between highway and freeway, alleging that DOT was acquiring property rights in excess of minimum required for project.

Landowners filed separate action seeking judicial review of DOT’s denial of landowners’ request for declaratory order that DOT was compelled to provide them with commercial access to highway.

Following consolidation of actions, the District Court granted DOT’s motion to dismiss. Landowners appealed. The Supreme Court issued single-justice order requiring landowners to file statement addressing Supreme Court’s jurisdiction over appeal and subsequently ordered the matter submitted with the appeal.

The Supreme Court held that:




ZONING & PLANNING - NEBRASKA

Main St Properties LLC v. City of Bellevue

Supreme Court of Nebraska - December 6, 2024 - N.W.3d - 318 Neb. 116 - 2024 WL 4996916

Landowner brought actions against city, seeking declaratory and injunctive relief and challenging, pursuant to a petition in error, the validity and enforcement of ordinance that rezoned landowner’s property to its former status after landowner’s repeat violations of conditional zoning agreement with city for landowner’s vehicle and trailer rental business.

After consolidation of cases, the District Court granted summary judgment for city. Landowner appealed.

The Supreme Court held that:




EMINENT DOMAIN - NEVADA

Mass Land Acquisition, LLC v. First Judicial District Court in and for County of Storey

Supreme Court of Nevada - October 17, 2024 - 557 P.3d 493 - 140 Nev. Adv. Op. 67

Investor-owned public utility brought eminent domain action, seeking to acquire easement for natural gas pipeline as well as immediate occupancy.

The District Court denied landowner’s motion to dismiss and granted utility’s motion for immediate occupancy. Landowner petitioned for writ of mandamus or prohibition, and filed motion to stay, which the District Court denied.

The Supreme Court held that:




IMMUNITY - OHIO

Schlegel v. Summit County

Supreme Court of Ohio - December 6, 2024 - N.E.3d - 2024 WL 4996424 - 2024-Ohio-5678

Resident filed negligence action against county, alleging that county’s failure to maintain roadway resulted in a sinkhole and culvert collapse, which in turn caused resident’s basement to flood.

The Court of Common Pleas granted in part and denied in part county’s motion for summary judgment. County appealed and the Court of Appeals reversed. On remand, the Court of Common Pleas granted county’s motion for summary judgment. Resident appealed, and the Court of Appeals affirmed. Resident appealed.

The Supreme Court held that statutory exception to political subdivision immunity for loss caused by a “negligent failure to keep public roads in repair” was not limited to motorists using the roads.

Statutory exception to political subdivision immunity for loss caused by a “negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads” was not limited to motorists using the road, and thus county potentially lacked immunity under statute for flood damage to resident’s home resulting from the county’s failure to keep roadway in repair, which allegedly led to roadway collapse and resulting debris which allegedly blocked drainage culvert.




MANAGEMENT AUTHORITIES ACT - RHODE ISLAND

Bronhard v. Thayer Street District Management Authority

Supreme Court of Rhode Island - November 27, 2024 - A.3d - 2024 WL 4901769

Owner of property serviced by district management authority filed complaint against authority for declaratory and injunctive relief, fraud, unjust enrichment, negligence, and violation of takings and due process clauses, and claiming district imposed and collected taxes on property without authority, and engaged in extreme and outrageous conduct under the color of state law.

The Superior Court granted authority’s motion for summary judgment, and denied owner’s cross-motion for summary judgment. Owner appealed.

The Supreme Court held that:

Factor considering whether a statutory provision was aimed at public officers weighed in favor of finding that the dissolution provision of the District Management Authorities Act, which stated that a district management authority would automatically terminate at the end of the third full fiscal year after its creation unless its continued existence was approved in writing, was directory, rather than mandatory, in action against authority brought by owner of property in district for negligence, unjust enrichment, and other relief, alleging authority collected taxes on property without authority; authority performed public and essential municipal functions, and its officers and directors were qualified members of the public body for purposes of liability.

Factor considering whether a statutory provision contained a sanction weighed in favor of finding that the dissolution provision of the District Management Authorities Act, which stated that a district management authority would automatically terminate at the end of the third fiscal year after its creation unless its continued existence was approved in writing, was directory, rather than mandatory, in action against authority brought by owner of property in district for negligence, unjust enrichment, and other relief, alleging authority collected taxes on property without authority; provision was merely related to a matter of procedure, and provision’s time constraint was not the essence of the statute, but rather, merely operated to prevent inactive authorities from continuing operations.

Factor considering whether a statutory provision was the essence of the statute weighed in favor of finding that the dissolution provision of the District Management Authorities Act, which stated that a district management authority would automatically terminate at the end of the third full fiscal year after its creation unless its continued existence was approved in writing, was directory, rather than mandatory, in action against authority brought by owner of property in district for negligence, unjust enrichment, and other relief, alleging authority collected taxes on property without authority; Act’s purpose was to have active authorities serve the state’s communities, which authority had done for more than ten years before owner filed suit, and without jeopardizing anyone’s rights.




MUNICIPAL ADVISORS - CALIFORNIA

Securities and Exchange Commission v. Choice Advisors, LLC

United States District Court, S.D. California - October 7, 2024 - Slip Copy - 2024 WL 4469095

Securities and Exchange Commission (SEC) brought a civil law enforcement action against municipal advisors Choice Advisors, LLC (Choice) and Matthias O’Meara (together, Defendants) and obtained a judgment that they violated securities laws and breached their fiduciary duties in providing services to their charter school clients.

The SEC then moved for final entry of judgment seeking injunctive relief, disgorgement, and penalties against Defendants.

The District Court held that:

 




IMPACT FEES - ILLINOIS

Habdab, LLC v. County of Lake

Supreme Court of Illinois - November 21, 2024 - N.E.3d - 2024 IL 130323 - 2024 WL 4847454

Developer brought declaratory judgment action against county and village, seeking determination that it was not obligated to pay highway improvement fees under intergovernmental agreement between county and village as a condition of annexation, on basis that fees did not meet requirements set forth in Road Improvement Impact Fee Law.

The Circuit Court granted county’s motion for summary judgment and denied developer’s cross-motion for summary judgment. Developer appealed. The Appellate Court affirmed. Developer petitioned for leave to appeal, which was granted.

The Supreme Court held that:

Highway improvement fees imposed by village on developer as condition of annexation of parcels in development project, on basis of intergovernmental agreement between county and village under which county agreed to design and construct road improvements in exchange for a portion of the construction costs being reimbursed by fees collected from developers within the area upon the occurrence of a triggering factor, including annexation, did not constitute “road improvement impact fee” that would be required to comply with Road Improvement Impact Fee Law; fees were imposed pursuant to a voluntary annexation, and Municipal Code specifically allowed municipalities to enter into annexation agreements and to have such agreements provide for contributions of monies to municipality.

Essential nexus existed between condition of agreement between county and village requiring village to impose highway improvement fees on developer upon annexation of development parcels into village, which allegedly burdened developer’s rights under takings clause, and legitimate state interest of minimizing traffic congestion, supporting finding that condition did not violate the “unconstitutional conditions” doctrine; fees would provide for road improvements to ease that congestion.

In determining whether there is a rough proportionality between the burden on plaintiff’s constitutional rights and the harm the government sought to remedy via a condition burdening those rights, in analysis of whether, pursuant to “unconstitutional conditions” doctrine, condition burdening constitutional right can be imposed on the receipt of a benefit, no precise mathematical calculation is required, but the government must make some sort of individualized determination as to whether burden and harm sought to be remedied are related in both nature and extent.

Rough proportionality existed between burden allegedly imposed on developer’s takings clause rights by condition of agreement between county and village, which required village to impose highway improvement fees on developer upon annexation of development parcels into village, and the harm of traffic congestion that county sought to remedy via the condition, and thus condition did not violate the “unconstitutional conditions” doctrine; parcels were zoned agricultural before annexation but were reclassified as single family residential after annexation, and fees paid by developer would go to county’s design and construction of road improvements, with county paying for half of such improvements.




EMINENT DOMAIN - NEW YORK

3649 Erie, LLC v. Onondaga County Industrial Development Agency

Supreme Court, Appellate Division, Fourth Department, New York - November 15, 2024 - N.Y.S.3d - 2024 WL 4798235 - 2024 N.Y. Slip Op. 05673

Property owner filed petition against county’s industrial development agency and developer seeking to annul the agency’s authorization of the condemnation of owner’s property in connection with the redevelopment of a former shopping mall.

The Supreme Court, Appellate Division, held that:




ZONING & PLANNING - NORTH DAKOTA

RMM Properties, L.L.L.P. v. City of Minot

Supreme Court of North Dakota - November 21, 2024 - N.W.3d - 2024 WL 4846687 - 2024 ND 213

Landowner appealed city’s approval of developer’s application to vacate plat that had a dedicated public access easement and to approve preliminary plat for subdivision on property that adjoined landowner’s property.

The District Court affirmed. Landowner appealed.

The Supreme Court held that:

Statute providing for vacatur of an entire plat, and not statute providing for vacatur of streets, alleys, or public grounds, was appropriate statute for city to evaluate developer’s application to vacate an entire plat that had a dedicated public access easement and to approve preliminary plat for a subdivision.

Evidence supported finding that a public access easement contained in plat was not an “alley” in which adjoining landowner had a fee interest, and thus landowner’s consent was not required for developer to obtain a vacatur of the entire plat by city in connection with plan for a subdivision, where plat’s description denoted a 24-foot public access easement dedicated for public use, and the dedication did not state the easement was an alley or grant a fee interest.




IMMUNITY - VIRGINIA

Canter v. Commonwealth

Court of Appeals of Virginia, Salem - November 19, 2024 - S.E.2d - 2024 WL 4819721

Motorist who was injured when his tractor-trailer overturned brought gross negligence action against Commonwealth, alleging failure of Virginia Department of Transportation (VDOT) to safely maintain highway.

The Circuit Court sustained Commonwealth’s demurrers and pleas in bar alleging sovereign immunity. Motorist appealed.

The Court of Appeals held that as a matter of first impression, Commonwealth’s decision to maintain portion of interstate highway which contained a pool of water in left-hand lane by placing orange and white barrels in the median, instead of undertaking repairs or a more extensive warning, constituted the exercise of a “legislative function” and thus fell within legislative-function exception to Virginia Tort Claims Act (VTCA) waiver of sovereign immunity.




IMMUNITY - WEST VIRGINIA

Monongalia County Commission v. Stewart

Supreme Court of Appeals of West Virginia - November 14, 2024 - S.E.2d - 2024 WL 4784676

Daughter of man shot by deputy sheriff when responding to domestic dispute call brought action against deputy and county commission, alleging excessive force/wrongful death, negligence/wrongful death, and vicarious liability. Deputy and county commission filed motion to dismiss for failure to state a claim on immunity grounds.

The Circuit Court granted the motion in part. Deputy and county commission appealed, and daughter cross-appealed.

The Supreme Court of Appeals held that:




PUBLIC EMPLOYMENT - CALIFORNIA

Bedard v. City of Los Angeles

Court of Appeal, Second District, Division 3, California - October 31, 2024 - Cal.Rptr.3d - 2024 WL 4634930 - 2024 Daily Journal D.A.R. 10,408

Police officer filed petition for writ of mandate seeking to set aside city disciplinary appeals board’s decision to terminate her for failure to comply with condition of employment requiring her to be vaccinated against COVID-19.

The Superior Court, Los Angeles County, denied petition but awarded her back pay based on finding that city violated her due process rights by giving her insufficient time to respond to charges against her. Officer appealed.

The Court of Appeal held that:




ZONING & PLANNING - CALIFORNIA

West Adams Heritage Association v. City of Los Angeles

Court of Appeal, Second District, Division 1, California - October 31, 2024 - Cal.Rptr.3d - 2024 WL 4633434 - 2024 Daily Journal D.A.R. 10,415

Objectors petitioned for writ of administrative mandamus, seeking to set aside city’s determination that a proposed residential housing development project near state university was exempt, as an urban in-fill development, from environmental review under California Environmental Quality Act (CEQA).

The Superior Court, Los Angeles County reversed and remanded. Objectors petitioned for review, which was granted. The Supreme Court transferred with instructions for vacatur and reconsideration.

The Court of Appeal held that:




PUBLIC UTILITIES - CONNECTICUT

United Illuminating Company v. Public Utilities Regulatory Authority

Supreme Court of Connecticut - October 29, 2024 - A.3d - 2024 WL 4611170

Plaintiff, an electric distribution company (EDC), sought judicial review of two final decisions of Public Utilities Regulatory Authority (PURA) that plaintiff had violated its statutory obligations with respect to its emergency planning, storm recovery performance, and other actions taken in connection with tropical storm and its aftermath, reducing authorized return on equity (ROE), and imposing various civil penalties, including more than $1.2 million in fines.

Office of Consumer Counsel (OCC) intervened as a defendant in both administrative appeals, and appeals were consolidated. The Superior Court dismissed appeals. Plaintiff appealed to the Appellate Court, and appeal was transferred to the Supreme Court.

The Supreme Court held that:




BOND VALIDATION - MISSISSIPPI

Validation of Up to $27,600,000 Trust Certificates Evidencing Proportional Interests in a Lease by Simpson County School District

Supreme Court of Mississippi - November 14, 2024 - So.3d - 2024 WL 4795292

School district sought validation of trust certificates for a lease/leaseback transaction in order to fund the construction of a consolidated and centrally located high school pursuant to the Emergency School Leasing Authority Act (ESLA).

After an objection to the validation was timely filed, the Chancery Court granted the validation request. Objectors appealed.

The Supreme Court held that:

As was relevant to validation of school district’s trust certificates for a lease/leaseback transaction under the Emergency School Leasing Authority Act (ESLA), it was lawful for the school board to approve a nunc pro tunc amendment to prior meeting’s minutes to add, by reference, the actual language of a “Capital Lease Resolution of Intent” that the board, at the prior meeting, had resolved to publish; the evidence presented supported finding that the amendment was a reflection of what actually occurred at that prior meeting.

The omission of a page from the meeting minutes in the official transcript sent to the state bond attorney was harmless and thus did not preclude validation of school district’s trust certificates for a lease/leaseback transaction under the Emergency School Leasing Authority Act (ESLA); the missing page provided notice of the meeting where the Board would take final action on the “Capital Lease Resolution of Intent,” and if the page had been included in what was sent to the state bond attorney, it would only have furthered evidence that proper procedure was followed.

As was relevant to validation of trust certificates, notice published by school board as to its “Capital Lease Resolution of Intent” for a lease/leaseback transaction met the statutory requirements of the Emergency School Leasing Authority Act (ESLA); despite argument that notice did not provide details on the financing or the specifics of the project, notice stated that a need existed for up to 10 school facilities, that the district could not provide the necessary funds to meet the present needs, and that the district would sell, lease, lend, grant, or otherwise convey facilities, and that title to any real property transferred by district would revert to district at expiration of term that would not exceed twenty years, and notice further informed reader of how to challenge board’s resolution.

The opinion of the state bond attorney is not binding on the Supreme Court on review of a decision on a school board’s request for a validation of trust certificates for a transaction under the Emergency School Leasing Authority Act (ESLA); it is merely a recommendation.

Objectors to validation of school district’s trust certificates for a lease/leaseback transaction in order to fund the construction of a consolidated and centrally located high school pursuant to the Emergency School Leasing Authority Act (ESLA) were afforded sufficient procedural due process under the Fourteenth Amendment and the Mississippi Constitution; objectors were afforded notice and the opportunity to challenge and be heard as provided by the legislature in ESLA, board met ESLA’s notice requirements by publishing their resolution in the newspaper of general circulation not less than 30 days before final action on the project was to be taken, and Board exceeded ESLA’s publication requirement by publishing its resolution four times instead of the statutorily required three.

School board could create a nonprofit corporation to aid in the financing of its lease/leaseback project to fund the construction of a consolidated and centrally located high school pursuant to the Emergency School Leasing Authority Act (ESLA), as was relevant to board’s request for validation of trust certificates; entities could create corporations under the Non-Profit Corporation Act, and the board, as a governmental subdivision of the state, was an “entity.”

As was relevant to validation of trust certificates, school board could use Emergency School Leasing Authority Act (ESLA) for lease/leaseback transaction that would fund construction of a consolidated and centrally located high school, despite argument that ELSA was created for a kindergarten emergency that no longer was an ongoing issue; the mere use of the word “emergency” in the title of the act did not create such a limitation on all sections throughout the chapter, ESLA did not require board to declare an emergency, and board was not required to use ESLA only to build kindergartens.

 




POLITICAL SUBDIVISIONS - MISSOURI

Good v. Department of Education

United States Court of Appeals, Tenth Circuit - November 12, 2024 - F.4th - 2024 WL 4745213

Consumer brought state court action against the United States Department of Education and Missouri Higher Education Loan Authority (MOHELA) alleging defendants violated Fair Credit Reporting Act (FCRA) as student loan lender and servicer, respectively, by failing to take corrective measures when consumer disputed accuracy of his credit reports.

Following removal, the United States District Court for the District of Kansas granted Department’s motion to dismiss based on sovereign immunity and granted MOHELA’s motion for judgment on the pleadings. Consumer appealed.

The Court of Appeals, Holmes held that:




BANKRUPTCY - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States Court of Appeals, First Circuit - November 13, 2024 - F.4th - 2024 WL 4763572

Financial Oversight and Management Board for Puerto Rico filed adversary complaint seeking, inter alia, disallowance of proof of claim filed by parties holding certain revenue bonds that had been issued by the Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

Bondholders counterclaimed for declaratory judgment. Numerous entities were allowed to intervene. The United States District Court for the District of Puerto Rico granted in part and denied in part the parties’ cross-motions for summary judgment and subsequently granted Board’s motion to dismiss remaining counts of bondholders’ counterclaim complaint. Bondholders appealed, Board and associated entities cross-appealed, and appeals were consolidated.

The Court of Appeals held that:

Under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the Financial Oversight and Management Board for Puerto Rico is empowered to place Commonwealth entities into “Title III” bankruptcy-type restructuring proceedings, which resemble municipal bankruptcy proceedings under Chapter 9 of the Bankruptcy Code.

Bondholders’ ability to pursue any remedies against the Puerto Rico Electric Power Authority (PREPA) under Commonwealth law was automatically stayed when the Financial Oversight and Management Board for Puerto Rico commenced a Title III proceeding in district court to restructure PREPA pursuant to the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

Under Puerto Rico law, preamble to trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued revenue bonds was not merely a non-binding prefatory clause but, instead, was an operative lien-granting clause; although agreement began with table-setting “whereas” clauses, subsequent “Now, Therefore” clause stated that, in order to secure payment of revenue bonds, PREPA “[did] hereby pledge” to trustee the revenues of its system and other specified moneys, that language reflected a grant, not merely an aspiration or a description of background facts, and evinced an intent to create a security interest, and Commonwealth’s Authority Act, which authorized PREPA to grant liens in its revenues, used same phrasing as preamble and thus expressly contemplated that “pledge” to “secure payment” of bond could create security interest.

Under Puerto Rico law, trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued revenue bonds granted bondholders a lien on PREPA’s net revenues, not on its gross revenues; although agreement did not define “revenues of the System” at issue, its “opinion of counsel” clause, which parties drafted to direct future counsel on how to describe collateral securing revenue bonds in connection with issuance and delivery of any such bonds, stated that agreement “create[d] a legally valid and effective pledge of the Net Revenues” and of “moneys, securities, and funds held or set aside” under agreement as security for bonds, nowhere did agreement state that bondholders’ lien was secured by all of PREPA’s revenues, and so agreement, read as a whole, clearly provided that “revenues of the System” meant “Net Revenues,” that is, gross revenues minus current expenses.

Under Puerto Rico law, in determining scope of lien created by trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued particular revenue bonds, agreement’s driveby references to “Revenues” had to take a back seat to drafters’ focused description of the collateral in agreement’s “opinion of counsel clause.”

Under the Bankruptcy Code, any lien on a Chapter 9 debtor-utility’s “special revenues” is subordinate to the debtor’s reasonable and necessary postpetition operating expenses.

Under Puerto Rico law, trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued revenue bonds granted bondholders a lien on PREPA’s net revenues, even if they were not placed in specified funds created by agreement; agreement’s preamble stated in relevant part that PREPA pledged to trustee “the revenues of the System . . . and other moneys to the extent provided in [the] Agreement . . . as follows,” and although more specific grants within agreement expressly provided for liens in certain “sinking” and “subordinate” funds, agreement’s “opinion of counsel” clause drew clear grammatical distinction between PREPA’s pledge of “Net Revenues” and its pledge of “moneys, securities, and funds held or set aside” under agreement, such that preamble’s modifying phrase “to the extent provided” applied only to “other moneys,” not to “revenues of the System,” and agreement’s pledge of net revenues was not limited to those deposited in sinking and subordinate funds.

Under Puerto Rico law, trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued revenue bonds, which granted bondholders a lien on PREPA’s net revenues, also granted a lien on the utility’s future net revenues; Commonwealth law permitted bondholders to hold a security interest in yet-to-be-acquired net revenues, and the Bankruptcy Code, as incorporated by the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), which governed PREPA’s Title III restructuring proceeding, made clear that a lien on “special revenues” like those at issue in the case continued to attach to revenues acquired postpetition.

Puerto Rico’s version of the Uniform Commercial Code (UCC) sanctions security interests in after-acquired collateral, i.e., liens extending to property that the debtor does not possess at the time of the underlying security agreement, which are also known as “floating liens.”

Congress has recognized, in the Bankruptcy Code, that a revenue bond can be secured by future income.

Under the Bankruptcy Code, a lien on after-acquired property generally does not attach to property acquired after the debtor files for bankruptcy.

Under the Bankruptcy Code, a lien on “special revenues” continues to attach to revenues acquired by a Chapter 9 debtor postpetition, notwithstanding the Code’s general bar on liens on property acquired after the debtor files for bankruptcy.

Congress passed the section of the Bankruptcy Code governing Chapter 9 debtors’ pledges of special revenue to alleviate the concern that municipalities would use the Code provision generally barring liens on property acquired postpetition to avoid long-term pledges of project-specific revenues.

Bankruptcy Code not only recognizes that a Chapter 9 debtor may grant a lien on future revenues — it also expressly states that such liens continue to attach to revenues acquired after the filing of a bankruptcy petition.

Broadly, under the Bankruptcy Code, a creditor maintains a postpetition lien on the “proceeds” of collateral acquired prepetition.

Under Puerto Rico’s version of the Uniform Commercial Code (UCC), a security interest generally cannot attach to property until (1) the property exists, and (2) the debtor has a transferable right in that property.

Under Puerto Rico law, even though floating lien in future net revenues granted to bondholders by trust agreement under which Puerto Rico Electric Power Authority (PREPA) issued revenue bonds did not permit bondholders to demand present payment of net revenues that PREPA would receive in five years, that did not mean that PREPA could not convey an initial overarching interest in any net revenues that would come through the door in five years.

Under Puerto Rico law, lien held by parties holding certain revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) was perfected with respect to net revenues that PREPA had acquired by providing electricity, and so lien could not be avoided by Financial Oversight and Management Board for Puerto Rico using its powers as hypothetical judgment lien creditor; bondholders’ security interest was a “general intangible,” bondholders had filed a timely financing statement as required to perfect their interest, and there was no contention that financing statement insufficiently described bondholders’ collateral or suffered from any other flaw that would have rendered the net revenue lien unperfected.

Under the Bankruptcy Code’s preferences section, bankruptcy trustee may avoid a debtor’s prepetition transfer of property to a creditor, if such transfer: (1) was made for an antecedent debt, (2) was made while the debtor was insolvent, (3) was made within a certain time period (usually 90 days), and (4) gives the creditor more than it would receive in a liquidation scenario that did not include the transfer.

Under any plausible conception of Puerto Rico law, lien held by parties holding certain revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), with respect to PREPA’s future net revenues, was not avoidable by Financial Oversight and Management Board for Puerto Rico using its powers as hypothetical judgment lien creditor, whether under sweeping “stream” theory urged by bondholders, whereby their perfection of lien in net revenue “stream” meant they already held perfected interest in future-acquired net revenues, under modified “stream” theory whereby bondholders’ lien would attach to future net revenues when PREPA acquired them, or under no “stream” theory at all, whereby perfection would occur as soon as PREPA acquired any future net revenues.

Upon determining, on appeal from Title III court’s decision in adversary proceeding in which Financial Oversight and Management Board for Puerto Rico sought disallowance of proof of claim filed by parties holding revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), that bondholders’ lien covered PREPA’s present and future net revenues, and that lien was not avoidable with respect to net revenues already acquired, the Court of Appeals would decline to address how Title III court should account for bondholders’ lien in PREPA’s restructuring; there was no insight from Title III court, which, having held that no net revenue lien existed, had no occasion to discuss how to account for such lien during PREPA’s restructuring, and there was no focused appellate briefing on issue from the parties.

Proper amount of allowed claim held by parties holding revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) was face value of bonds, that is, principal plus matured interest, or roughly $8.5 billion; bondholders had legal “right to payment” rooted in covenants outlined in governing trust agreement, to which Commonwealth’s Authority Act applied, trust agreement clearly required PREPA to pay bonds in full and expressly permitted bondholders to proceed at law to challenge any breach of agreement’s covenants, there was thus no need to estimate their “right to payment” under section of Bankruptcy Code governing allowance of claims or interests, and because bondholders’ legal right to payment arose from debt instrument, proper amount of claim was full face amount of instrument.

Parties holding revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) were nonrecourse creditors and, thus, if their collateral only satisfied part of their claim, they could not file deficiency claim for the remainder; governing trust agreement expressly stated that revenue bonds were not general obligations of the Commonwealth of Puerto Rico, bondholders’ secured claim was thus payable “solely” from special revenues, such that section of the Bankruptcy Code governing limitation on recourse against Chapter 9 debtors applied and bondholders’ recourse was limited to their collateral, and nothing in the trust agreement said otherwise.

Under Puerto Rico law, Puerto Rico Electric Power Authority (PREPA) was not a trustee with respect to revenues and other moneys received, for purposes of breach-of-trust claim asserted by parties holding revenue bonds issued by PREPA before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA); governing trust agreement clearly identified a third-party financial institution and its successors, not PREPA, as trustee, particular section of agreement was properly read as requiring PREPA to deposit moneys with “depositories,” which then held the moneys in trust and applied them in accordance with agreement, and did not make PREPA itself a trustee, and Commonwealth’s Authority Act required PREPA to account “as if” it were the trustee of an express trust, which language would have been unnecessary if PREPA were already a trustee with respect to all moneys received.

Parties holding revenue bonds issued by Puerto Rico Electric Power Authority (PREPA) before it entered reorganization proceedings under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) properly pled claim for equitable “accounting” against PREPA under Puerto Rico law; bondholders alleged that PREPA wrongfully diverted net revenues from debt service by spending them on unreasonable current expenses, thereby starving certain funds created by governing trust agreement of cash and slowing debt payments to bondholders, Commonwealth’s Authority Act required PREPA to “account as if [it] were the trustee of an express trust,” and parties’ agreement did not limit that authority.




ZONING & PLANNING - VERMONT

In re Windham Windsor Housing Trust

Supreme Court of Vermont - November 15, 2024 - A.3d - 2024 WL 4798899 - 2024 VT 73

Following affirmance of conditional use permit granted for mixed-income residential development on two lots, neighbors appealed subsequent Environmental Commission opinion that the project did not require an Act 250 environmental permit because it was exempt as a priority housing project, despite road separating the two lots.

The Superior Court, Environmental Division, affirmed, and neighbors appealed.

The Supreme Court held that lots were “contiguous” as required for exemption from Act 250 environmental review even though they were separated by town road.




CONTRACTS - ARIZONA

City of Chandler v. Roosevelt Water Conservation District

Court of Appeals of Arizona, Division 1 - October 31, 2024 - P.3d - 2024 WL 4630924

City filed complaint against state irrigation and water district for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory judgment that parties agreement for district to provide city water remained valid and that district had committed material breach, and seeking specific performance of agreement.

The Superior Court denied district’s motion for summary judgment on statute of limitations grounds, and granted city’s motion for summary judgment. District appealed.

The Court of Appeals held that:

City’s claims against irrigation and water district accrued, and the one-year limitations period began to run, no later than when district refused to provide city with water in accordance with city’s letter notifying district of city’s intent to order water for delivery for the following calendar year, which city sent in response to district’s prior letter repudiating its agreement to provide city water, in city’s action for breach of contract, declaratory judgment, and other relief, alleging district’s unilateral termination of the agreement was a material breach of the agreement.




PUBLIC EMPLOYMENT - CALIFORNIA

Bedard v. City of Los Angeles

Court of Appeal, Second District, Division 3, California - October 31, 2024 - Cal.Rptr.3d - 2024 WL 4634930

Police officer filed petition for writ of mandate seeking to set aside city disciplinary appeals board’s decision to terminate her for failure to comply with condition of employment requiring her to be vaccinated against COVID-19.

The Superior Court, Los Angeles County, denied petition but awarded her back pay based on finding that city violated her due process rights by giving her insufficient time to respond to charges against her. Officer appealed.

The Court of Appeal held that:

Substantial evidence supported trial court’s finding that police officer was not terminated just because she failed to sign notice enforcing COVID-19 vaccination mandate set forth in city ordinance, but also because she refused to comply with the mandate and thereby violated a condition of her employment, thus supporting city’s disciplinary action, where officer did not apply for religious or medical exemption and disciplinary action occurred just days after she sent her commanding officer and other superiors an e-mail stating she would not be vaccinated for personal reasons.

Police officer’s refusal to comply with COVID-19 vaccination mandate was likely to result in harm to public service, and thus, city disciplinary appeal board did not abuse its discretion in finding that termination was appropriate remedy; officer’s refusal to vaccinate against a deadly disease placed herself, her coworkers, and public with whom she interacted while on duty at significant risk of harm on a daily basis.

Award of back pay for period during which discipline was invalid was sufficient remedy for city’s due process violation in failing to afford police officer the required full 30 days to respond to charges against her for failing to comply with condition of employment requiring her to be vaccinated against COVID-19, and thus, officer was not entitled to reinstatement, given that discharge was justified and what made the discipline wrongful had nothing to do with whether there was legitimate basis for terminating employment.




IMMUNITY - FLORIDA

PEN American Center, Inc. v. Escambia County School Board

United States District Court, N.D. Florida, Pensacola Division - October 18, 2024 - F.Supp.3d - 2024 WL 4527789

Parents, authors, publisher, and literary organization brought action alleging that school board improperly removed or restricted certain library books based on viewpoint discrimination, in violation of First Amendment.

Board moved for protective order to prevent deposition of board members.

The District Court held that:

School board’s actions regarding access to library books pending review of objections and its decision to remove or restrict access to books were legislative in nature, and thus legislative privilege barred school board members’ depositions in action alleging that it improperly removed or restricted certain library books based on viewpoint discrimination, in violation of First Amendment; creation of district-wide policy regarding access to challenged books pending completion of review process was legislative decision, board members’ votes were preceded by public notice, consideration of input, and debate and discussion by board members, actions had policymaking function and general application, and members were making judgment call and engaging in line-drawing on matter of public concern.

School board did not waive legislative privilege to preclude deposition of its members in action alleging that their removed or restricted certain library books violated First Amendment by producing documents in discovery without making privilege objection; privilege belonged to members, and members were not parties, and were not responsible for responding to document production request.




LIABILITY - GEORGIA

City of Roswell v. Hernandez-Flores

Court of Appeals of Georgia - October 31, 2024 - S.E.2d - 2024 WL 4633588

Pedestrian filed negligence suit against city, seeking to recover for serious head, neck, and leg injuries sustained when pedestrian was struck on the sidewalk by a fleeing suspect’s vehicle after suspect swerved to avoid tire-deflating spikes deployed by a city police officer.

The State Court denied city’s motion for summary judgment based on sovereign immunity. City applied for interlocutory review, which was granted. The Court of Appeals reversed. On certiorari, the Supreme Court remanded for reconsideration in light of intervening precedent.

On remand, the Court of Appeals held that:




PUBLIC UTILITIES - OKLAHOMA

City of Oklahoma City v. Oklahoma Corporation Commission

Supreme Court of Oklahoma - November 6, 2024 - P.3d - 2024 WL 4687324 - 2024 OK 77

City filed a petition in error, appealing final order issued by the Oklahoma Corporation Commission which granted an application filed by public utilities division (PUD) seeking a order that, under the February 2021 Regulated Utility Consumer Protection Act, city utility may not bill customers for franchise fees, municipal fees or taxes, and/or gross receipts taxes when such fees and taxes were based upon specific securitized revenue customer payments.

The Oklahoma Municipal League’s request to intervene was granted by the Commission, and the League also filed a petition in error challenging the final order.

The Supreme Court held that:

The Oklahoma Municipal League possessed standing to participate in the Corporation Commission proceeding brought to prevent utilities from collecting franchise fees and gross receipts taxes based upon specific “securitized revenue”; the League’s members had pecuniary interests which were affected by the Commission’s order affecting utility rates.

Corporation Commission exercised a legislative function when it considered public utilities division’s (PUD) application seeking an order that, under the February 2021 Regulated Utility Consumer Protection Act, city utility could not collect fees or taxes based upon securitization revenue customer payments; language of Commission’s final order was primarily legislative and not judicial when combined with the PUD’s application requesting that the Commission legislate a result consistent with the PUD’s perception of fairness for customers by alleviating them from the PUD’s perceived “windfall” for municipalities.

Corporation Commission’s determination that the February 2021 Regulated Utility Consumer Protection Act changed, amended, or altered utility’s legal obligations concerning municipal franchise fees and gross receipts taxes was a determination not sustained by law; the Act did not give the Commission the authority to determine the legality of a municipal franchise fee or whether a franchise fee liability is legally unenforceable via a utility rate or tariff because of the Act.




BOND VALIDATION - TEXAS

Hansard v. Zamora

United States District Court, W.D. Texas, Pecos Division - September 19, 2024 - Slip Copy - 2024 WL 4249845

In early summer 2022, George and Stacy Hansard became concerned about a $110 million school bond placed on the ballot for the May 2022 election cycle. The Hansards understood that no public funds could be used to advocate for the bond but learned that the Fort Stockton Independent School Board had done so anyway. They expressed these concerns to the bank underwriting the funds who then reached out to the School Board with a demand for all advertisements used in the election. The bond did not pass during the May 2022 election.

When the bond reappeared on the November election ballot, the Hansards sent the Texas Attorney General’s office copies of the advertisements they believed had been paid for with public funds. They also appeared at two open meetings and began expressing their many concerns to the School Board.

Members of the School Board then commenced a truly shocking course of harassment against the Hansards.

The Hansards filed this suit in October 2023, bringing First Amendment retaliation, defamation, slander, slander per se, and libel per se claims under 42 U.S.C. § 1983, as well as federal conspiracy. They also brought three state-law claims for defamation, intentional infliction of emotional distress, and civil conspiracy.

The Magistrate Judge issued his report and recommendation.  Both parties filed objections. The Court took up these objections on de novo review.

The District Court denied each of the Hansard’s objections, finding that each highlighted the same misunderstanding of how qualified immunity plays out at the motion to dismiss stage, particularly when a group is alleged to have acted in unison. Where the actions of individuals within a group were previously discoverable, courts may no longer defer ruling on a defendant’s assertion of qualified immunity to allow for such limited discovery.

Here, the Magistrate Judge found George Hansard’s § 1983 claim against the School Board Defendants did not pass muster because “a § 1983 plaintiff who alleges mistreatment at the hands of a group [must] describe with particularity the actions taken by each of them individually.”

 




ADMINISTRATIVE PROCEDURE - WYOMING

Bienz v. Board of County Commissioners, County of Albany

Supreme Court of Wyoming - September 25, 2024 - 556 P.3d 227 - 2024 WY 102

Property owners and livestock company sought judicial review under the Wyoming Administrative Procedure Act (WAPA) challenging the county board of county commissioners’ amendments to zoning regulations referred to as the Aquifer Protection Overlay Zone (APOZ).

The District Court dismissed the petitions for review, concluding that it lacked jurisdiction because the amendments were legislative acts and not reviewable under the WAPA. Property owners and livestock company appealed.

The Supreme Court held that there is no common law or general statutory exception to judicial review of agency legislative actions; instead, the Wyoming Administrative Procedure Act (WAPA) provisions governing review, well-understood judicial principles, and separation of power principles guide the nature and scope of review; overruling McGann v. City Council of City of Laramie, 581 P.2d 1104, and abrogating Sheridan Plan. Ass’n v. Bd. of Sheridan Cnty. Comm’rs, 924 P.2d 988.




ZONING & PLANNING - CALIFORNIA

JCCrandall, LLC v. County of Santa Barbara

Court of Appeal, Second District, Division 6, California - October 29, 2024 - Cal.Rptr.3d - 2024 WL 4599704

Servient tenement owner petitioned for writ of administrative mandate challenging county’s grant of conditional use permit to lessor of dominant tenement estate to cultivate cannabis on property, which required lessor to use easement over servient owner’s land to access dominant tenement property.

The Superior Court, Santa Barbara County, denied petition. Servient owner appealed.

The Court of Appeal held that:




BOND VALIDATION - GEORGIA

State v. Decatur County-Bainbridge Industrial Development Authority

Court of Appeals of Georgia - October 31, 2024 - S.E.2d - 2024 WL 4633664

State petitioned to validate up to $300 million in taxable revenue bonds to fund construction and development of primate breeding facility.

The Superior Court granted petition and validated bond.

Area citizens subsequently moved to intervene in the proceeding, and the State filed a motion for reconsideration or, alternatively, to set aside the bond validation order.

In its motion, the State alleged that based on new information that had recently come to his attention, the district attorney who filed the petition now believed that certain requirements for the project had not been met.

Before the trial court ruled on the motion, however, the State filed a notice of appeal from the bond validation order.

“In the appeal presently before this Court, the State asks us to vacate a bond validation order that was issued pursuant to the State’s own request. The State contends that the bond validation proceedings were improper, but the State acknowledges that at the time the trial court issued its order on the petition, the court was unaware of the deficiencies. Indeed, as the State acknowledges, the bond validation petition averred that all the requirements for a bond validation had been met.”

The Court of Appeals held that state had no basis to appeal trial court’s order, and thus, dismissal of state’s appeal of order was warranted.

State had no basis to appeal trial court’s order granting state’s petition to validate taxable revenue bonds to fund construction and development of primate breeding facility, and thus, dismissal of state’s appeal of order was warranted, where state was party who sought order.




IMMUNITY - KENTUCKY

Morales v. City of Georgetown

Supreme Court of Kentucky - October 24, 2024 - S.W.3d - 2024 WL 4576332

Former sheriff’s deputy, who served on joint law enforcement group specially trained in tactical operations, brought action asserting negligence claims against city police lieutenant, who was group’s co-commander, and city police officer, who also served on group, in their official and individual capacities, and asserting negligence and vicarious liability claims against city and city police department, arising from incident in which deputy was shot and paralyzed during group’s operation to apprehend alleged bank robber.

The Circuit Court granted summary judgment for defendants. Deputy appealed. The Court of Appeals affirmed in part and reversed in part. Parties filed cross-motions for discretionary review, which were granted.

The Supreme Court held that:




POLITICAL SUBDIVISIONS - LOUISIANA

Police Jury of Calcasieu Parish v. Indian Harbor Insurance Co.

Supreme Court of Louisiana - October 25, 2024 - So.3d - 2024 WL 4579035 - 2024-00449 (La. 10/25/24)

Political subdivision brought action against its domestic property insurers to recover for damage caused by hurricanes. Insurers removed case and filed motions to compel arbitration and stay proceedings based on clauses in foreign insurers’ policies.

The United States District Court for the Western District of Louisiana certified questions.

The Supreme Court held that:

Statutory amendment which states that ban on insurance policy provisions depriving state courts of jurisdiction or venue of action against insurer do not prohibit forum or venue selection clause in policy form not subject to approval by Department of Insurance does not irreconcilably conflict with the ban and thus does not implicitly repeal it; forum selection clauses primarily concern location where parties can pursue litigation, but arbitration clauses primarily concern method of dispute resolution depriving any court of jurisdiction, and amendment creates limited exception in which forum or venue selection clause is permitted in certain types of insurance contracts and does not plainly indicate arbitration clauses are also permitted.

Insurance policy with political subdivision is “public contract” within meaning of statute banning in public contracts any provision which requires suit or arbitration proceeding to be brought in forum or jurisdiction outside of state or requires interpretation of the agreement according to laws of another jurisdiction.

Domestic insurer may not use equitable estoppel to enforce arbitration via a foreign insurer’s policy; contrary finding would violate state’s positive law prohibiting arbitration in Louisiana-issued insurance policies and invite domestic insurers’ misuse a doctrine of last resort to ceaselessly rely on insurance policies of foreign insurers to compel arbitration.




ZONING & PLANNING - NEW YORK

Bennett v. Troy City Council

Supreme Court, Appellate Division, Third Department, New York - October 24, 2024 - N.Y.S.3d - 2024 WL 4557622 - 2024 N.Y. Slip Op. 05257

Resident who lived adjacent to site for the proposed construction of an apartment complex on a vacant, forested, 11–acre parcel brought article 78 proceeding against city council challenging its decision under the State Environmental Quality Review Act (SEQRA) that the project would not result in any significant adverse environmental impacts and its adoption of an ordinance rezoning the site from single-family residential district to a planned development district.

The Supreme Court dismissed, and resident appealed.

The Supreme Court, Appellate Division held that:

City council failed to take the hard look, as required by the State Environmental Quality Review Act (SEQRA), at the significant environmental impact expected from a project to construct apartment complex on vacant, forested, 11–acre parcel before issuing a declaration that the project would not result in any significant adverse environmental impacts; city council’s characterization of project’s archaeological impact as “moderate” unduly minimized historic/archaeological significance of the project site, which contained a Middle to Late Archaic quarry with multiple loci, representing a full range of extraction and production activities, yet council omitted Native American community as a consulting party in formulating any required data retrieval plan.

City council’s adoption of ordinance rezoning the site for proposed apartment complex on a vacant, forested, 11–acre parcel along river from single-family residential district to a planned development district did not involve illegal spot zoning, or the singling out of small parcel of land for use classification totally different from that of surrounding area for benefit of parcel’s owner and detriment of other owners; although city’s planning commission initially rejected the project, record was expanded prior to council’s determination, and project maintained residential use and would establish multi-use trail along the shoreline opening public access to river.




ANNEXATION - UTAH

Erda Community Association Inc. v. Grantsville City

Court of Appeals of Utah - September 12, 2024 - P.3d - 2024 WL 4156722 - 2024 UT App 126

Sponsors for incorporation of new city brought action against neighboring city, seeking to invalidate, under Municipal Land Use, Development, and Management Act (MLUDMA) and state and federal constitutions, neighboring city’s annexation of 550 acres of land that would have been part of new city, which annexation occurred before public vote on new city’s incorporation.

The Third District Court denied sponsors’ motion for summary judgment and granted neighboring city’s competing summary judgment motion, finding that sponsors lacked standing, had failed to exhaust administrative remedies, and that annexation occurred within statutory window. Sponsors appealed.

The Court of Appeals held that:




ZONING & PLANNING - VERMONT

In re Ranney Dairy Farm, LLC

Supreme Court of Vermont - October 25, 2024 - A.3d - 2024 WL 4576460 - 2024 VT 66

Neighbors brought action to challenge town development review board’s issuance of subdivision permit to landowner.

The Superior Court affirmed, and neighbors appealed.

The Supreme Court held that:




LIABILITY - ARIZONA

City of Mesa v. Ryan in and for County of Maricopa

Supreme Court of Arizona - October 17, 2024 - P.3d - 2024 WL 4509603

Bicyclist, who was struck by city police officer while driving patrol car during multi-vehicle accident, brought personal-injury action against officer and city.

The Superior Court denied defendants’ motion to dismiss for deficient notice of claim. Defendants filed petition for special action review, which was accepted. The Court of Appeals reversed and remanded with directions. Review was granted.

The Supreme Court held that bicyclist’s offer to settle claims for the greater of $1 million or applicable insurance policy limits did not constitute “specific amount,” for purposes of notice-of-claim statute’s requirement that notice of claim contain specific amount for which claim could be settled.

Bicyclist’s offer to settle personal-injury claims that were asserted against city and city police officer and that arose from multi-vehicle accident that occurred when officer was driving patrol car, which struck bicyclist, for the greater of $1 million or applicable insurance policy limits did not constitute “specific amount,” for purposes of notice-of-claim statute’s requirement that notice of claim contain specific amount for which claim could be settled; city’s risk management claims analyst was unable to determine from notice of claim whether bicyclist was willing to settle for city’s self-insured retention limit of $3 million, automobile-liability policy’s $1 million limit, or excess-carrier policy’s limit of $10 million to $50 million.




ZONING & PLANNING - MAINE

Moreau v. Town of Parsonsfield

Supreme Judicial Court of Maine - October 22, 2024 - A.3d - 2024 WL 4537133 - 2024 ME 75

Landowner filed zoning appeal against town and neighbor, seeking to vacate town zoning board of appeals’ (ZBA) decision setting aside town planning board’s approval of permit for landowner to operate automotive repair shop on his lot in residential district.

The Superior Court, York County, vacated ZBA’s decision. Neighbor appealed.

The Supreme Judicial Court held that:




EMINENT DOMAIN - NEVADA

Mass Land Acquisition, LLC v. First Judicial District Court of in and for County of Storey

Supreme Court of Nevada - October 17, 2024 - P.3d - 2024 WL 4510338 - 140 Nev. Adv. Op. 67

Investor-owned public utility brought eminent domain action, seeking to acquire easement for natural gas pipeline as well as immediate occupancy.

The District Court denied landowner’s motion to dismiss and granted utility’s motion for immediate occupancy. Landowner petitioned for writ of mandamus or prohibition, and filed motion to stay, which the District Court denied.

The Supreme Court held that:

Landowner’s petition for traditional writ relief and advisory mandamus to challenge investor-owned public utility’s taking of gas pipeline easement by eminent domain and immediate occupancy was not moot, although pipeline had been constructed; issue presented an unsettled question of statewide importance that qualified for advisory mandamus, and landowner had potential remedies of ejectment or restoration and reversion.

Supreme Court would deny landowner’s request that it grant writ relief from the district court’s order denying landowner’s motion for a stay of grant of immediate occupancy which was issued to investor-owned public utility in underlying eminent domain action in which utility acquired a natural gas pipeline easement over landowner’s property; landowner’s remedy was to seek a stay from the Supreme Court, which it waived when it withdrew its motion for a stay from the Supreme Court before it could be decided.




ZONING & PLANNING - NEW HAMPSHIRE

Rod v. Town of Peterborough

Supreme Court of New Hampshire - October 25, 2024 - A.3d - 2024 N.H. 61 - 2024 WL 4575912

Gun club, which had reoriented outdoor shooting range from east-west to north-south, appealed zoning board of adjustment’s affirmance of examining officer’s decision that the club did not have a lawful nonconforming use, the board’s denial of club’s special exception application, and the planning board’s denial of the club’s site plan application.

The Superior Court affirmed and denied club’s motion for reconsideration. Club appealed.

The Supreme Court held that:




IMMUNITY - NEW MEXICO

Sanders v. New Mexico Corrections Department

Supreme Court of New Mexico - October 10, 2024 - P.3d - 2024 WL 4456675

Victim’s estate brought wrongful death action against New Mexico Corrections Department (NMCD), its secretary, and its bureau records chief, alleging that victim was killed by inmate that NMCD erroneously released.

The District Court granted defendants summary judgment on basis that they were immune from suit under Tort Claims Act (TCA). Victim’s estate appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. Defendants petitioned for review, which was granted.

The Supreme Court held that:

There is no basis to conclude that there is a geographical limit on the location of an injury that would preclude the application of the building waiver of the Tort Claims Act (TCA), which permits tort claims against governmental entities for damages resulting from wrongful death by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, as a matter of law, abrogating Archibeque v. Moya, 116 N.M. 616, 866 P.2d 344.

Wrongful death claims brought by estate of victim killed by an inmate that had been erroneously released by New Mexico Corrections Department (NMCD) were not barred simply because the death did not occur on or adjacent to NMCD’s premises; Tort Claims Act’s (TCA) building waiver extended to negligence occurring beyond the physical premises.




LIABILITY - NEW YORK

Minahan v. New York City Transit Authority

Supreme Court, Appellate Division, First Department, New York - October 17, 2024 - N.Y.S.3d - 2024 WL 4508114 - 2024 N.Y. Slip Op. 05140

Pedestrian brought negligence action against city transit authority and metropolitan transit authority, alleging that she was tripped and fell on sidewalk grate due to crack in nearby sidewalk that abutted building.

The Supreme Court, New York County, denied pedestrian’s motion for partial summary judgment and granted transit authorities’ cross-motion for summary judgment. Pedestrian appealed.

The Supreme Court, Appellate Division, held that:

Failure of transit authorities to respond to pedestrian’s notice to admit did not prejudice pedestrian, and thus, defendants were not bound by deemed admission relating to ownership of sidewalk grate, onto which pedestrian allegedly tripped and fell due to crack in nearby sidewalk that abutted building, such that legal duty of care was conferred upon transit authorities, in pedestrian’s negligence action against defendants; defendants’ failure to respond was inadvertent, given that they had not admitted allegation of ownership in their answer, notice to admit was served by email at onset of pandemic shutdown and was not raised by pedestrian as outstanding discovery item at subsequent preliminary conference, and court took judicial notice of pedestrian’s second suit relating to accident.

City and metropolitan transit authorities did not own sidewalk grate onto which pedestrian allegedly tripped and fell due to a crack in nearby sidewalk that abutted building, and thus did not owe a legal duty to pedestrian to maintain perimeter around grate; grate was not a subway grate that could have been owned or leased to defendants.




EMINENT DOMAIN - GEORGIA

YKH Realty, LLC v. Georgia Department of Transportation

Court of Appeals of Georgia - October 8, 2024 - S.E.2d - 2024 WL 4440461

Department of Transportation (DOT) issued declarations of taking for two parcels due to road construction and deposited estimated just compensation for the takings.

Holders of security interests in the parcels moved to set aside the takings and, as an alternative, to consolidate the DOT’s petitions, which occurred by consent order, and also challenged the DOT’s valuation by timely filing an appeal.

Record landowner filed an untimely notices of appeal contesting the valuation in each pre-consolidation case. The Superior Court granted the DOT’s motion to dismiss the untimely appeal, and granted DOT’s motion for partial summary judgment on claims for consequential damages. Record landowner and secured parties appealed.

The Court of Appeals held that:




REFERENDA - MARYLAND

Maryland State Board of Elections v. Ambridge

Supreme Court of Maryland - October 10, 2024 - A.3d - 2024 WL 4456563

Voters of city filed petition for judicial review of ballot question that was to be included on general election ballot and that asked voters whether to amend certain provision of city’s charter, and voters subsequently amended the petition to add a claim under statute allowing registered voters to seek judicial relief from any act or omission relating to an election.

After a hearing, the Circuit Court determined that ballot question violated state constitution in that it was not proper charter material and violated statute governing content of ballots. City’s mayor and city council were allowed to intervene, and then the State Board of Elections, mayor, and city council appealed.

The Supreme Court held that statute providing for judicial review of the content and arrangement of a ballot, or to correct any administrative error on the ballot, was not a proper mechanism to challenge either whether proposed charter amendment was proper charter material or whether the language of proposed charter amendment comported with statute requiring a ballot to be easily understandable by voters.




NEGLIGENCE - NEW YORK

Orellana v. Town of Carmel

Court of Appeals of New York - October 17, 2024 - N.E.3d - 2024 WL 4505721 - 2024 N.Y. Slip Op. 05131

Motorist brought negligence action against town and its superintendent of highways, seeking to recover for personal injuries she sustained as result of motor vehicle accident and alleging superintendent was negligent in failing to look both ways before entering intersection and causing collision.

The Supreme Court granted defendants’ motion for summary judgment dismissing negligence claim and denied motorist’s cross-motion for summary judgment as to liability on that claim, and the Supreme Court, Appellate Division, affirmed. Court of Appeals granted motorist leave to appeal.

The Court of Appeals held that superintendent was not actually engaged in work on highway at time he collided with another motorist.

Town superintendent of highways was not actually engaged in work on highway at time he collided with another motorist, and thus superintendent and town were not exempted from liability for ordinary negligence, pursuant to statute that indicated traffic regulations applicable to drivers of vehicles owned or operated by town did not apply to people while actually engaged in work on highway, in negligence action brought by motorist; accident occurred after superintendent had completed assessment of roadway conditions and mobilized team to salt roads, at time of accident superintendent was returning to work, and although superintendent saw snow accumulation shortly before collision, he took no action in response.




PUBLIC RECORDS - OHIO

State ex rel. Grim v. New Holland

Supreme Court of Ohio - October 9, 2024 - N.E.3d - 2024 WL 4446174 - 2024-Ohio-4822

Public records requester, proceeding pro se, brought action against village, seeking writ of mandamus ordering village to allow requester to inspect and copy certain public records, as well as statutory damages and court costs.

After mediation proceedings, village filed answer. Supreme Court granted alternative writ.

The Supreme Court held that:




PUBLIC UTILITIES - PENNSYLVANIA

Conyngham Township v. Pennsylvania Public Utility Commission

Commonwealth Court of Pennsylvania - October 4, 2024 - A.3d - 2024 WL 4395153

Township filed petition challenging orders of the Public Utility Commission (PUC) finding PUC lacked jurisdiction to review township’s petition requesting that PUC order borough’s sanitary sewer authority to cease providing wastewater treatment and disposal services in township without certificate of public convenience, granting authority’s exceptions, dismissing township’s complaint, and denying reconsideration. Authority intervened.

The Commonwealth Court held that PUC had jurisdiction to review township’s petition.

Public Utility Commission (PUC) had jurisdiction to review township’s petition requesting that PUC order borough’s sanitary sewer authority to cease providing wastewater treatment and disposal services in township without a certificate of public convenience issued by PUC, and that authority return all collected monies to the residents until it obtained a valid certificate, even though the Municipality Authorities Act (MAA) granted the court of common pleas exclusive jurisdiction to determine questions involving utility rates or service; the issue in township’s petition did not involve rates or service.




BONDS - PUERTO RICO

Ambac Assurance Corporation v. Bank of New York Mellon

United States District Court, D. Puerto Rico - September 24, 2024 - Slip Copy - 2024 WL 4277670

Ambac Assurance Corporation brought an action seeking to recover damages against Bank of New York Mellon (BNYM) for BNYM’s alleged “grossly negligent breach” of its contractual and common-law duties as trustee for certain bonds – insured by Ambac – that were issued by the Puerto Rico Sales Tax Financing Corporation (COFINA).

In essence, Ambac alleged that BNYM’s failure to officially declare an Event of Default – although many events of default had in fact occurred –  damaged Senior Bondholders and, consequently, Ambac itself.

The COFINA indenture included the release of Ambac’s relevant breach of duty claims against BNYM other than those premised on claims of gross negligence, willful misconduct, or intentional fraud.

BNYM argued that Ambac’s complaint failed to state gross negligence claims and, therefore, must be dismissed.

The District Court agreed, holding that the COFINA indenture preserved only Ambac’s relevant ability to make claims premised on gross negligence, and that Ambac had failed entirely to state such a claim upon which relief may be granted.

While the District Court noted that Ambac had raised potentially colorable claims concerning BNYM’s breach of contractual duties, pre- and post- default common law duties, and the covenant of good faith and fair dealing, none of these alleged breaches rose to the level of gross negligence.

“Beyond the ordinary negligence elements, a plaintiff must also allege facts plausibly suggesting that the defendant’s conduct evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.”

“Recklessness in the context of a gross negligence claim means an extreme departure from the standards of ordinary care, such that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.”

“A claim of gross negligence requires a plaintiff to prove that the defendant failed to exercise even slight care, scant care, or slight diligence, or that the defendant’s actions evinced a reckless disregard for the rights of others.”

“A mistake or series of mistakes alone, without a showing of recklessness, is insufficient for a finding of gross negligence.”

 




PUBLIC EMPLOYMENT - WASHINGTON

U.S. Sportsmen's Alliance Foundation v. Smith

Supreme Court of Washington, En Banc - October 17, 2024 - P.3d - 2024 WL 4509254

Wildlife-conservation organization brought action against member of Washington Fish and Wildlife (WFW) Commission, who was also a member of county planning commission, alleging member was statutorily prohibited from holding both positions concurrently.

On cross-motions for summary judgment, the Superior Court entered judgment in favor of organization. Commission member sought direct review, which was granted.

The Supreme Court held that:

Term “office,” as used in statute providing that persons eligible for appointment as members of Washington Fish and Wildlife (WFW) Commission shall not hold another state, county, or municipal elective or appointive “office,” means a position of authority, duty, or responsibility conferred by a governmental authority for a public purpose or to exercise a public function, rather than only positions that independently exercise part of the government’s sovereign power.

Position of commissioner on county planning commission was an “office” under statute providing that persons eligible for appointment as members of Washington Fish and Wildlife (WFW) Commission shall not hold another state, county, or municipal elective or appointive “office,” and therefore member of WFW Commission was precluded from being a WFW Commission member and a county planning commissioner concurrently; county planning commission’s authority was conferred by a governmental authority, it was created for a public purpose, serving on county planning commission was an appointed position, and county planning commission was authorized, and sometimes required, to hold public hearings in exercise of its duties.




PUBLIC MEETINGS. - FLORIDA

Moms for Liberty - Brevard County, FL v. Brevard Public Schools

United States Court of Appeals, Eleventh Circuit - October 8, 2024 - F.4th - 2024 WL 4441302

Parents group and its members filed § 1983 action alleging that school board’s rules prohibiting abusive, personally directed, and obscene speech during public comment period of board meetings violated First Amendment facially and as applied.

The United States District Court for the Middle District of Florida entered summary judgment in board’s favor, and plaintiffs appealed.

The Court of Appeals held that:




ENVIRONMENTAL - HAWAI'I

Aloha Petroleum, Ltd. v. National Union Fire Insurance Company of Pittsburgh, PA

Supreme Court of Hawai‘i - October 7, 2024 - P.3d - 2024 WL 4431797

Insured petroleum company brought action against commercial general liability (CGL) insurers for declaratory judgment that they had duty to defend suits by city and county over greenhouse gas emissions from insured’s gasoline.

The United States District Court for the District of Hawai‘i certified questions.

The Supreme Court held that:

“Accident” as used in commercial general liability (CGL) policy’s definition of “occurrence” included petroleum company’s allegedly reckless conduct in producing fossil fuels contributing to climate change; awareness of risk differed from awareness of certain harm, negligence and accident would be mutually exclusive if “accident” meant an event where the harm was unforeseeable, including recklessness in an “accident” honored fortuity, and principle of fortuity was more about concept of chance than insured’s culpability.

Carbon dioxide from burning petroleum company’s gasoline was “contaminant” and thus “pollutant” within meaning of total pollution exclusion of company’s commercial general liability (CGL) policy; greenhouse gases contaminated atmosphere and were traditional environmental pollution, exclusion was unambiguous as applied to greenhouse gases, and company could not reasonably expect products liability coverage for pollution.




HIGHWAYS - MARYLAND

Bay City Property Owners Association, Inc. v. County Commissioners of Queen Anne's County

Appellate Court of Maryland - October 2, 2024 - A.3d - 2024 WL 4368287

Subdivision owners association brought action for declaratory judgment and to quiet title to intersection in subdivision.

Neighboring landowner, which sought to use the intersection for access to proposed development, alleged establishment of a public road by prescription.

The Circuit Court entered judgment for neighboring landowner, and association appealed.

The Appellate Court held that:

Evidence in subdivision’s quiet title action was sufficient to support finding that disputed intersection in subdivision had been in continuous public use for at least 20 years, as required to establish a public right to use the intersection; several witnesses testified that they, and other members of the public, traveled freely through the intersection without having to request permission, and testimony and exhibits demonstrated that the county had improved and maintained the intersection, including construction, resurfacing, and plowing, for decades.

Evidence in subdivision’s quiet title action was sufficient to support finding that the public’s use of disputed intersection in subdivision was adverse, rather than permissive, as required to establish a public road by prescription; there was some evidence that members of the public had traversed the intersection in conjunction with their use of road whenever they saw fit and without asking leave of subdivision, there was no evidence in the record of any member of the public asking permission, paying a fee, or believing permission could be withheld with regard to their use of the intersection, and there was evidence that no public use had ever been restricted through signage or barricades.




SCHOOLS - MISSISSIPPI

Aldridge v. South Tippah County School District

Court of Appeals of Mississippi - August 20, 2024 - So.3d - 2024 WL 3870492

Mother of minor student brought negligence action against high school district for injuries he sustained when he was stabbed in locker room while coach was in gym.

The Circuit Court granted district’s motion for summary judgment. Mother appealed.

The Court of Appeals held that coach had no duty to be present in locker room while students were changing into their practice attire.

Statute addressing educators’ responsibilities to hold pupils to strict account for disorderly conduct, state educator ethics code, and basketball coach’s usual procedure for supervising his classroom did not create duty for coach to be present in locker room while students were changing into their practice attire, and, thus, his failure to follow his usual practice of staying in locker room did not establish breach of duty by school district to provide appropriate supervision, in mother’s negligence action against district for injuries sustained by student who was stabbed by another student; students were friends, neither coach nor district had notice of animosity between students or reason to believe that altercation between them would occur, and no one knew that other student had knife.




EMINENT DOMAIN - OHIO

State ex rel. Gideon v. Page

Supreme Court of Ohio - October 10, 2024 - N.E.3d - 2024 WL 4454448 - 2024-Ohio-4867

After Court of Common Pleas granted city’s motion to vacate its dismissal of eminent domain action without prejudice due to parties purportedly having reached settlement agreement, and city moved to enforce settlement, property owner brought original action in Court of Appeals for writ of prohibition to prevent trial court judge from conducting any further proceedings in underlying case.

City and Judge filed motions to dismiss. Property owner filed objections to magistrate’s report and recommendations. The Court of Appeals overruled the objections, granted the motions to dismiss, and denied the writ of prohibition. Property owner appealed, and filed motion for oral argument.

The Supreme Court held that:

Supreme Court would deny property owner’s motion for oral argument on direct appeal from the denial of property owner’s writ of prohibition alleging that trial court judge lost jurisdiction over eminent domain case and could not schedule hearing on whether to enforce settlement agreement with city, as case did not involve complex issues, a matter of great public importance, a substantial constitutional issue, or a conflict among courts of appeals.

Court of common pleas judge did not patently and unambiguously lack jurisdiction to hear city’s motion for relief from judgment and vacate dismissal without prejudice of eminent domain action; no statute removed the court’s jurisdiction, at a minimum, judge had jurisdiction to determine whether grounds for relief from judgment existed, and, while motion did not cite rule governing relief from judgment, city argued at hearing that judge could vacate the dismissal under rule or her inherent authority.




PUBLIC UTILITIES - OHIO

In re Letter of Notification Application of Columbia Gas of Ohio, Inc.

Supreme Court of Ohio - October 3, 2024 - N.E.3d - 2024 WL 4375867 - 2024-Ohio-4747

Adjacent landowner appealed decision of the Power Siting Board which approved an accelerated application for the construction of a natural-gas-distribution pipeline less than five miles long.

Gas company intervened.

The Supreme Court held that:

Record on appeal of Power Siting Board’s approval of accelerated application for natural gas pipeline did not support adjacent landowner’s claim that pipeline application required a permanent easement with a minimum width of 50 feet along the entire pipeline route; while pipeline company stated in one part of its application that the project would require a 50-foot-wide permanent easement and a 50-foot-wide temporary easement, those applied only to the pipeline route running through identified areas of ecological concern, attachment to the accelerated application indicated that construction rights-of-way would “typically” consist of a 50-foot-wide permanent easement and a 50-foot-wide temporary construction easement but that the easement widths would vary based on the circumstances, and the construction-plan drawings attached to the application depicted easements of varying widths.

Power Siting Board did not give “artificial deference” to pipeline company regarding safety concerns when considering accelerated application for natural gas pipeline; Board conditioned approval of the accelerated application on company complying with all relevant rules and regulations, including pipeline-safety standards established by the Pipeline and Hazardous Materials Safety Administration, Board also adopted staff’s report, which required company, prior to beginning construction, to obtain and provide “on the case docket” copies of all permits and authorizations required by federal and state laws and regulations in areas that require such permits and authorizations, and pipeline was subject to the condition that issuance of the construction certificate “shall not exempt the facility from any other applicable and lawful local, state, or federal rules or regulations.”




ZONING & PLANNING - ALASKA

Griswold v. City of Homer

Supreme Court of Alaska - September 20, 2024 - P.3d - 2024 WL 4246636

Neighbor of property owners who placed shipping container on their property to use as a vacation home sought judicial review of city board of adjustment’s decision upholding city planning commission’s decision upholding zoning permit issued to property owners.

The Superior Court affirmed and granted city’s motion for attorney fees and costs. Neighbor appealed.

The Supreme Court held that:




PUBLIC LAWSUITS ACT - GEORGIA

Clay v. Morgan County

Court of Appeals of Georgia - September 30, 2024 - S.E.2d - 2024 WL 4341890

Residents who owned, leased, and lived on property zoned for agricultural and residential use in county brought action against county, seeking declaratory and injunctive relief regarding project to build electric vehicle manufacturing facilities on state-owned property that was leased by multi-county joint development authority, which leased property to private manufacturer, asserting that project would violate local zoning ordinances.

After being permitted to intervene, state and authority filed motion to dismiss for lack of jurisdiction, and county filed separate motion to dismiss. The Superior Court dismissed action, rejecting defendants’ argument that action was barred by Public Lawsuits Act but dismissing on other grounds. Residents, state, and authority appealed.

The Court of Appeals held that:

County residents’ action seeking declaratory and injunctive relief regarding project to build electric vehicle manufacturing facilities on state-owned property that was leased by joint development authority, which leased property to private manufacturer, was “public lawsuit” under Public Lawsuits Act, which limited number of lawsuits that could be brought against public improvement project, though authority, in its bond resolution, stated that project was not public project under Local Government Public Works Construction Law and that statutes requiring contractors on certain public contracts to participate in federal work authorization program did not apply; residents alleged that project would violate local zoning laws, Act applied to broader array of projects than Construction Law, and statutes had no bearing on Act.

In the interest of judicial economy, Court of Appeals would exercise its discretion to decide question of law as to whether county residents’ prior lawsuit was a “public lawsuit” under Public Lawsuits Act, which limited number of lawsuits that could be brought against public improvement project, even though it was voluntarily dismissed without prejudice, rather than remanding for trial court to address issue in the first instance, when reviewing dismissal of residents’ action seeking declaratory and injunctive relief regarding project to build electric vehicle manufacturing facilities on state-owned property that was leased by joint development authority, which leased property to private manufacturer, on ground that project would violate local zoning laws; material facts were undisputed.

County residents’ prior lawsuit regarding project to build electric vehicle manufacturing facilities on state-owned property that was leased by joint development authority, which leased property to private manufacturer, was “commenced” when it was filed with the court, for purposes of section of Public Lawsuits Act prohibiting filing of other lawsuits against public improvement project after public lawsuit had been commenced, as supported conclusion that residents’ subsequent lawsuit seeking declaratory and injunctive relief on ground that project would violate local zoning laws was barred under Act, even though prior lawsuit was voluntarily dismissed without prejudice prior to any ruling on its merits.

Under Public Lawsuits Act, which limited number of lawsuits that could be brought against public improvement project, dismissal of county residents’ action seeking declaratory and injunctive relief regarding project to build electric vehicle manufacturing facilities on state-owned property that was leased by joint development authority, which leased property to private manufacturer, on ground that project would violate local zoning laws, not residents’ other nearly identical action that was pending in different county, was warranted; other action was not before court, other action was filed earlier, and allowance of one public lawsuit was fulfilled before current action was filed.

 

 




SALE LEASEBACK - INDIANA

Luebke v. Indiana Department of Local Government Finance

Tax Court of Indiana - September 13, 2024 - N.E.3d - 2024 WL 4182290

Coalition of Allen County taxpayers objected to the Allen County Board of Commissioners’ plan to build a new jail, challenging the legality of a lease approved by the Department of Local Government Finance (the “DLGF”).

The new jail was projected to take at least three years to build, with an estimated cost of roughly $320 million. The Commissioners undertook several steps to move this project forward. For instance, they established the “Allen County, Indiana Building Corporation” to assist the County in financing its facilities by acquiring, owning, constructing, renovating, and leasing both existing and new county buildings. In addition, they planned to convey the historic Courthouse to this newly formed entity, which would then lease the property back to the County during the new jail’s construction. The sale-leaseback plan for the Courthouse sought to reduce overall costs by avoiding approximately $28 million in capitalized interest expenses during the initial construction period, thereby lowering the lease payments for the new jail. The Building Corporation and the Commissioners executed a lease-purchase agreement (“the Lease”) to implement the sale-leaseback plan and formalize the terms for leasing the new jail.

The objecting taxpayers contended that the lease was unlawful because the statutory framework for county leases did not permit the sale-leaseback of historical buildings long owned by the county, such as the Allen County Courthouse. They further argued that the jail’s construction could not proceed because the resolution lacked the statutorily required determination of need for the Courthouse sale-leaseback.

The Commissioners argued that the taxpayers had not established an injury sufficient to confer standing because they had focused solely on the use of the Courthouse as a financing method for the new jail and that and that the lease and resolution comply with the law.

The Tax Court affirmed the final determination of the DLGF, holding that:

“The Commissioners suggest that the Objectors have not been injured by the sale-leaseback of the Courthouse, when viewed as a separate, unrelated transaction from the jail project. However, they have provided no reason to consider these transactions in isolation. On the contrary, the Commissioners have consistently emphasized that the sale-leaseback of the Courthouse is integral to the new jail project. Indeed, the sale-leaseback is designed to generate revenue that will reduce lease payments by avoiding millions in capitalized interest during the new jail’s construction. This demonstrates that the construction of the new jail and the sale-leaseback of the Courthouse are inherently interrelated, with the financing and execution of one directly impacting and supporting the other.”

“An examination of the relationship between the sale-leaseback of the Courthouse and the new jail project confirms the Objectors’ standing in this case. The sale-leaseback of the Courthouse is a means of funding the new jail project that directly impacts each of the Objectors individually as taxpayers and property owners. The Commissioners and the Building Corporation executed a single lease encompassing both the Courthouse and the new jail, creating a unified funding structure. The sale-leaseback is not merely an isolated transaction, but plays a critical role in generating substantial revenue to reduce the overall financial burden on other funding sources. The funds required to cover lease payments are sourced from the Jail LIT, economic development revenues from a local income tax and, if necessary, the County’s property tax. Without this revenue stream, any shortfall would likely be offset by increasing reliance on the Jail LIT, economic development funds, or property taxes, directly affecting the taxpayer Objectors. Thus, the sale-leaseback and new jail project are not just parallel transactions, but form an interdependent funding framework that materially impacts the taxpayers and property owners of Allen County.”

“The Commissioners’ own arguments demonstrate that the sale-leaseback of the Courthouse is designed solely to fund the new jail project. Similarly, the Objectors challenge to the legality of the sale-leaseback, inherently involves the entire financing structure, which directly relies on taxpayer contributions, including the Jail LIT and potentially the County’s property tax. As taxpayers and property owners, the Objectors are directly impacted by the commitment of their tax liabilities in support of this funding arrangement. Thus, their challenge is not just to the isolated transaction of the sale-leaseback of the Courthouse, but to a funding scheme that imposes a personal and imminent financial burden. Consequently, the Court finds that this impact constitutes a personal and direct injury, satisfying the requirement for standing.”




ZONING & PLANNING - WASHINGTON

King County v. Friends of Sammamish Valley

Supreme Court of Washington, En Banc - September 19, 2024 - P.3d - 2024 WL 4231188

County appealed corrected determination by regional panel of growth management hearings board that most of county ordinance that amended land use code governing winery, brewery, and distillery facilities did not comply with the Growth Management Act (GMA) and the State Environmental Policy Act (SEPA).

The Superior Court transferred the appeal to the Court of Appeals pursuant to the Administrative Procedure Act (APA), and the Court of Appeals reversed and remanded for finding of compliance. The Supreme Court accepted review.

The Supreme Court held that:

County’s amended land use code governing winery, brewery, and distillery facilities in rural and agricultural areas, which county determined was a nonproject action and made a threshold determination of nonsignificance (DNS), did not comply with the Growth Management Act (GMA); development of rural and agricultural land with no environmental review failed to maintain the natural resource industries and failed to protect water quality, while county’s DNS checklist did not address any potential environmental impacts and concluded no potential environmental impacts existed, and ordinance allowed accessory uses of wine tasting and large-scale events with no adequate regulations and adequate setbacks to prevent conflicts with agricultural activities.

Threshold determination of nonsignificance (DNS) which county issued for amendment of land use code governing winery, brewery, and distillery facilities in rural and agricultural areas did not comply with the State Environmental Policy Act (SEPA); amendment created opportunities for new and existing businesses to open or expand operations within land classified as rural and agricultural, and it was very probable that the affected land, which was in a popular winery destination area, would be used in that manner, and SEPA checklist which county used did not disclose potential environmental impacts from the potential expansion of facilities in the area.




PUBLIC MEETINGS. - FLORIDA

McDonough v. Garcia

United States Court of Appeals, Eleventh Circuit - September 16, 2024 - F.4th - 2024 WL 4195557

City resident filed § 1983 action alleging that city and police officers violated First Amendment by banning him from city council meetings, and that officers lacked probable cause to arrest him for disorderly conduct and cyberstalking.

The United States District Court for the Southern District of Florida entered summary judgment in defendants’ favor, and plaintiff appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. Rehearing en banc was granted.

The Court of Appeals held that city council meetings were limited public forums, for First Amendment purposes.

City council meetings were limited public forums for First Amendment purposes, and thus its decision to bar city resident from meetings had to be reasonable in light of purposes served by meetings and could not discriminate on basis of viewpoint; though public comment periods were open to public at large, council limited speech to matters “pertinent to the City.”




PUBLIC UTILITIES - MAINE

Deane v. Central Maine Power Company

Supreme Judicial Court of Maine - September 17, 2024 - A.3d - 2024 WL 4206506 - 2024 ME 72

Consumers brought action against electric utility, alleging fraudulent and negligent misrepresentation, statutory violations, and intentional infliction of emotional distress (IIED) arising from consumers’ receipt of allegedly misleading disconnection notices from utility in winter for being behind on their electric bills.

The Business and Consumer Court dismissed in part for failure to state a claim, after which the Business and Consumer Court granted summary judgment to utility on IIED claim. Consumers appealed.

The Supreme Judicial Court held that:




BALLOT INITIATIVE - NEBRASKA

State ex rel. Brooks v. Evnen

Supreme Court of Nebraska - September 13, 2024 - N.W.3d - 317 Neb. 581 - 2024 WL 4178278

Objectors brought mandamus proceeding and also requested a declaratory judgment to challenge voter ballot initiative that proposed to amend State Constitution to include a right to abortion, alleging violation of the single subject rule of the Constitution.

The Supreme Court held that:

Declaratory relief was not available to objector who claimed that voter ballot initiative proposing to amend State Constitution to include a right to abortion violated the single subject rule of the Constitution, where objector also requested a writ of mandamus premised on a determination that the initiative violated the single subject rule, and mandamus was an equally serviceable remedy provided by law.

Voter ballot initiative that proposed to amend State Constitution to include a right to abortion did not violate the single subject rule of the Constitution, where initiative was not complex, proposed constitutional amendment contained two sentences, including one of which defined a key term used in other sentence, and initiative did not contain multiple subjects that were not naturally and necessarily connected to the general subject.




ADMINISTRATIVE PROCEDURE ACT - WASHINGTON

City of Tacoma v. Department of Ecology

Supreme Court of Washington, En Banc - September 5, 2024 - P.3d - 2024 WL 4048335

Municipalities and special purpose districts that operated wastewater treatment plants that discharged into Puget Sound filed petition for judicial review and declaratory judgment, alleging that the state’s Department of Ecology had unlawfully promulgated rules in violation of the Administrative Procedure Act (APA) in issuing portions of report that identified the most likely sources of human-produced nitrogen in Puget Sound and in making commitment to environmental organization, in letter denying organization’s rulemaking petition, to set nutrient-loading limits at current levels through the individual permitting process.

The Superior Court ruled in favor of the municipalities and districts. Department appealed. The Court of Appeals affirmed in part and reversed in part, upholding the ruling that the Department’s commitment in denial letter was an unlawfully promulgated rule. Department filed petition for review, which was granted.

The Supreme Court held that Department’s commitment in the denial letter was not a “directive of general applicability” and, thus, was not a “rule” under the APA.

Commitment made by state’s Department of Ecology to environmental organization, in letter denying organization’s rulemaking petition relating to nitrogen levels in Puget Sound, to set nutrient-loading limits at current levels through the individual permitting process was not a “directive of general applicability” and, thus, was not a “rule” subject to the rulemaking procedures of the Administrative Procedure Act (APA); Department’s commitment in the denial letter did not eliminate staff discretion or prevent a case-by-case analysis of permit holder’s operations when issuing permits, and denial letter was ultimately not binding on those regulated.




ADMINISTRATIVE PROCEDURE ACT - WYOMING

Bienz v. Board of County Commissioners, County of Albany

Supreme Court of Wyoming - September 25, 2024 - P.3d - 2024 WL 4284101 - 2024 WY 102

Property owners and livestock company sought judicial review under the Wyoming Administrative Procedure Act (WAPA) challenging the county board of county commissioners’ amendments to zoning regulations referred to as the Aquifer Protection Overlay Zone (APOZ).

The District Court dismissed the petitions for review, concluding that it lacked jurisdiction because the amendments were legislative acts and not reviewable under the WAPA. Property owners and livestock company appealed.

The Supreme Court held that there is no common law or general statutory exception to judicial review of agency legislative actions; instead, the Wyoming Administrative Procedure Act (WAPA) provisions governing review, well-understood judicial principles, and separation of power principles guide the nature and scope of review; overruling McGann v. City Council of City of Laramie, 581 P.2d 1104, and abrogating Sheridan Plan. Ass’n v. Bd. of Sheridan Cnty. Comm’rs, 924 P.2d 988.




REFERENDA - NEBRASKA

State ex rel. Collar v. Evnen

Supreme Court of Nebraska - September 13, 2024 - N.W.3d - 317 Neb. 608 - 2024 WL 4178319

Relator filed petition for writ of mandamus directing the Secretary of State to withhold from general election ballot a referendum seeking to repeal act which established a program to provide $10 million in education scholarships to eligible students to pay costs associated with attending qualified private elementary and secondary schools.

The Supreme Court held that:




SPECIAL ASSESSMENTS - NORTH DAKOTA

Senske Rentals, LLC v. City of Grand Forks

Supreme Court of North Dakota - September 12, 2024 - N.W.3d - 2024 WL 4163014 - 2024 ND 172

Landowner petitioned for review of city’s decision to specially assess its property in subdivision for street improvements.

The District Court affirmed. Landowner appealed.

The Supreme Court held that:

Trial court acted within its discretion in denying landowner’s motion to strike, from the record, a benefit and assessment chart of city special assessment commission, on landowner’s appeal of city’s decision to specially assess its property in subdivision for street improvements, where landowner filed motion approximately eight months after the record had been filed and months after deadline for filings related to completeness of record, landowner provided no reasonable grounds for delay, and court found the documents were appropriate to be included in the record on appeal.

Statute governing determination of municipal special assessments requires a determination of special benefits independent of, and without regard to, the cost of the local improvement project; overruling Holter v. City of Mandan, 948 N.W.2d 858.




REFERENDA - OHIO

State ex rel. Valentine v. Schoen

Supreme Court of Ohio - September 6, 2024 - N.E.3d - 2024 WL 4100090 - 2024-Ohio-3439

Referendum petitioner sought a writ of mandamus to compel board of elections to place zoning referendum on general election ballot.

The Supreme Court held that petitioner failed to comply with appropriate-map requirement of statute governing township-zoning referendum petitions.

Referendum petitioner, who objected to township’s zoning amendment that allowed property to be used as a tow lot and for vehicle storage, failed to comply with appropriate-map requirement of statute governing township-zoning referendum petitions, although petitioner claimed he received inaccurate map from township; petitioner submitted a map with referendum petition that outlined the approximately nine-acre area that property owner originally requested be rezoned, not the smaller portion that the board of township trustees voted to rezone, and no evidence indicated the board approved the map as reflecting the zoning amendment it approved.




EDUCATION FINANCE - SOUTH CAROLINA

Eidson v. South Carolina Department of Education

Supreme Court of South Carolina - September 11, 2024 - S.E.2d - 2024 WL 4141893

Advocacy organizations and parents, on behalf of themselves and their minor children, brought action against South Carolina Department of Education, state Superintendent of Education, and other state offices and officers, asserting that act establishing state-funded Education Scholarship Trust Fund which provided payments used for tuition at private schools violated the South Carolina Constitution, and seeking an injunction and declaratory judgment.

The Supreme Court held that:




REFERENDA - TEXAS

In re Dallas HERO

Supreme Court of Texas - September 11, 2024 - S.W.3d - 2024 WL 4143401

Organizers of citizen petition drive which resulted in placement of three proposed city charter amendments on upcoming election ballot filed petition for writ of mandamus challenging three other proposed city charter amendments submitted by city council, which organizers contended would effectively nullify their proposed amendments.

The Supreme Court held that:

Individual had interest in electoral process sufficient to confer standing to file petition for writ of mandamus challenging three proposed city charter amendments submitted by city council based on allegation that those proposed amendments would effectively nullify three other proposed city charter amendments submitted by citizens, where individual signed petitions for citizen-initiated propositions and individual alleged that ballot language of council-initiated propositions was misleading because it omitted effect those propositions would have on citizen-initiated propositions.

Voter who signed initiative petition for election to amend city charter has interest in valid execution of charter amendment election distinct from that of general public, for standing purposes, when there is colorable basis for arguing that another proposition on same ballot would have effect of negating proposition voter signed; invasion of that interest is no less distinct or particularized when allegedly misleading or confusing ballot language is located in separate proposition that otherwise duplicates same substantive measure.

Ballot language for three proposed city charter amendments submitted by city council omitted certain chief features that reflected their character and purpose, and thus language was misleading; each of three council-initiated propositions would, if approved by voters, conflict with three other proposed city charter amendments submitted by citizens, yet ballot language did not acknowledge conflicting character of those propositions so that voters could attempt to avoid dilemma by casting consistent votes, nor did it inform voters of conflict provisions council included in its propositions for purpose of resolving conflict between propositions in favor of council-initiated propositions.

Appropriate remedy for misleading ballot language for three proposed city charter amendments submitted by city council which were intended to nullify three other city charter amendments submitted by citizens was to remove council-initiated propositions from ballot; directing city to remove those propositions from ballot did not interfere with or delay upcoming election, but instead recognized that city could not confuse its voters by submitting converse of citizen-initiated propositions that were required to appear on ballot.




THE LOST CAUSE - VIRGINIA

Cowherd v. City of Richmond

Court of Appeals of Virginia, Richmond - September 17, 2024 - S.E.2d - 2024 WL 4204682

City filed petition for permission to disinter Confederate general’s remains from city-owned property and reinter them in cemetery, and to gift monument erected above remains to museum.

The Richmond Circuit Court rejected general’s collateral descendants counterclaim, and granted city’s petition. Descendants appealed.

The Court of Appeals held that:




EMINENT DOMAIN - VIRGINIA

Town of Iron Gate v. Simpson

Court of Appeals of Virginia, Lexington - September 17, 2024 - S.E.2d - 2024 WL 4205418

Landowner filed declaratory judgment action alleging inverse condemnation, claiming that town allowed a stormwater drainage pipe to flood the property.

The Allegheny Circuit Court overruled town’s demurrer, and following a bench trial on liability and a jury trial on just compensation, awarded damages and attorney’s fees. Town appealed.

The Court of Appeals held that:




EMINENT DOMAIN - WASHINGTON

City of Sammamish v. Titcomb

Supreme Court of Washington, En Banc - September 12, 2024 - P.3d - 2024 WL 4156608

Municipality filed petition in eminent domain after enacting ordinance condemning property rights in water flowing through homeowners’ property.

The Superior Court, denied city’s motion for order adjudicating public use and necessity, denied municipality’s motion for reconsideration, and granted homeowners’ motion for attorney fees and costs. Municipality appealed. The Court of Appeals reversed. Homeowners appealed and review was granted.

The Supreme Court held that municipality was not divested of its statutory condemnation authority by project that had primary purpose of eliminating barriers to fish passage but that also included listed purpose of drainage infrastructure; limiting holding of Cowlitz County v. Martin, 142 Wash. App. 860, 177 P.3d 102.




ZONING & PLANNING - CALIFORNIA

San Pablo Avenue Golden Gate Improvement Association, Inc. v. City Council of City of Oakland

Court of Appeal, First District, Division 4, California - June 28, 2024 - 103 Cal.App.5th 233 - 322 Cal.Rptr.3d 870

Neighborhood organizations petitioned for a writ of administrative mandamus following dismissal of administrative complaint against city in which they sought initiation of revocation review process for zoning clearance issued to applicant to operate commercial kitchen in “Housing and Business Mix-1 Commercial Zone,” on basis that applicant’s proposed use was incorrectly classified as “Light Manufacturing Industrial” and that zoning clearance contravened zoning regulations.

The Superior Court denied petition, and organizations appealed.

The Court of Appeal sitting by assignment, held that section of municipal code governing enforcement of zoning regulations, which was the provision relied upon by organizations, did not provide a legal basis to challenge city planning department’s interpretations and determinations of zoning regulations, including use classifications and zoning clearances.




PUBLIC EMPLOYMENT - MASSACHUSETTS

Hartnett v. Contributory Retirement Appeal Board

Supreme Judicial Court of Massachusetts - September 11, 2024 - N.E.3d - 2024 WL 4138001

Retired public employee sought judicial review of decision by Contributory Retirement Appeal Board (CRAB) which affirmed the Division of Administrative Law Appeals (DALA) administrative magistrate’s decision that the anti-spiking provision of the public employee pension statute limited her entitlement to pension benefits.

The Superior Court Department agreed with CRAB that the anti-spiking provision generally would apply, but that to do so would violate employee’s vested pension rights. CRAB appealed and employee filed a cross appeal.

The Supreme Judicial Court held that employee’s last year of public employment with the state before she left to work in the private sector and the first year of her reemployment with city more than a decade later were not two “consecutive years” within the meaning of the anti-spiking provision of the public employee pension statute.




ZONING & PLANNING - MONTANA

Montanans Against Irresponsible Densification, LLC v. State

Supreme Court of Montana - September 3, 2024 - P.3d - 2024 WL 4023334 - 2024 MT 200

Limited liability company (LLC) formed of interested homeowners brought action seeking declaratory and permanent injunctive relief prohibiting the State and its municipalities from implementing laws requiring cities to permit duplexes in single-family zones and permitting accessory dwelling units.

The District Court granted LLC’s motion for a preliminary injunction, and the State appealed.

The Supreme Court held that:




PUBLIC RECORDS - OHIO

State ex rel. Wells v. Lakota Local Schools Board of Education

Supreme Court of Ohio - September 3, 2024 - N.E.3d - 2024 WL 4017827 - 2024-Ohio-3316

Requester filed action against school board and its treasurer for writ of mandamus to compel school district to produce records responsive to her requests under the Public Records Act.

The Supreme Court held that:




PUBLIC UTILITIES - OHIO

In re Application of Moraine Wind, L.L.C.

Supreme Court of Ohio - August 27, 2024 - N.E.3d - 2024 WL 3940615 - 2024-Ohio-3224

Renewable energy organization appealed order of Public Utilities Commission of Ohio (PUCO) approving applications of six out-of-state operators of wind farms for certification in Ohio.

PUCO moved to dismiss appeal.

The Supreme Court held that PUCO did not rule on organization’s application for rehearing within 30 days, denying application as matter of law, and, thus, dismissal of appeal was not appropriate.

Public Utilities Commission of Ohio (PUCO) did not rule on renewable energy organization’s application for rehearing within 30 days, denying application as matter of law, and, thus, dismissal of appeal from PUCO’s order granting certification to six wind farm operators was not appropriate, although PUCO argued that its order granting rehearing for limited purpose of extending time to review application made it so application was still pending when organization appealed certification order; order extending PUCO’s time to review application did not vacate prior certification order or reach any determination as to whether reconsideration of that order was warranted, and effect of order was to put off consideration of application under future date, such that order did not actually grant rehearing.




EMINENT DOMAIN - TEXAS

Alamo Heights Independent School District v. Jones

Court of Appeals of Texas, El Paso.August 28, 2024--- S.W.3d ----2024 WL 3970738

Three former residents of apartment complex, who were displaced when the complex was purchased by school district, sued the district and several of its officials, seeking relocation expenses, relocation assistance, and injunctive relief under eminent domain statutes, and bringing ultra vires claim alleging that defendants failed to provide such assistance.

After denying defendants’ first motion for summary judgment on the merits, from which defendants did not appeal, the District Court denied defendants’ motion for summary judgment, which made same arguments as first motion but also raised a jurisdictional plea based on governmental immunity. Defendants filed interlocutory appeal, and residents moved to dismiss appeal.

The Court of Appeals held that:




PUBLIC UTILITIES - CALIFORNIA

Pacific Gas and Electric Company v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit - August 23, 2024 - F.4th - 2024 WL 3908398

Investor-owned utility that provided electricity to most consumers in city petitioned for review of orders of the Federal Energy Regulatory Commission (FERC) with respect to utility’s obligations under a tariff to transmit, or wheel, over its network electricity produced by a public utility with some customers in city, orders that FERC had issued on remand from a prior decision of the Court of Appeals, vacating FERC’s prior orders with respect to the same issues.

The Court of Appeals held that:

Investor-owned utility that provided electricity to most consumers in city experienced actual and ongoing injuries caused by orders of the Federal Energy Regulatory Commission (FERC) with respect to utility’s obligations under a tariff to transmit, or wheel, over its network electricity produced by a public utility with some customers in city, and those injuries would be redressed if the appellate court set the orders aside, and investor-owned utility thus had Article III standing to petition for review of the orders, even though they related to a tariff that had been replaced by a later tariff, where FERC had required investor-owned utility to serve certain delivery points based on the earlier tariff, and the later tariff had not fully taken effect.

Order of the Federal Energy Regulatory Commission (FERC) with respect to obligations of investor-owned utility, which provided electricity to most consumers in city, under a tariff to transmit, or wheel, over its network electricity produced by a public utility with some customers in city was contrary to law, where FERC had erroneously given a broad, class-based interpretation to phrase “ultimate consumer” in grandfather clause in statute generally barring FERC orders requiring a utility to transmit or wheel energy except to a public entity that was providing electric service to “such ultimate consumer” as of a certain date, but phrase referred to a discrete end user, not a class or category of end users.

In statute barring Federal Energy Regulatory Commission (FERC) orders requiring the transmission or wheeling of electric energy “directly to an ultimate consumer” or to an entity that would sell that energy to an “ultimate consumer” unless, under statute’s grandfather clause, the entity is a public entity that was providing electric service “to such ultimate consumer” as of a certain date, the term “ultimate consumer” refers to a discrete end user as of that date, not to a class or category of end users.




REFERENDA - CALIFORNIA

Bonta v. Superior Court of Sacramento County

Court of Appeal, Third District, California - August 13, 2024 - 104 Cal.App.5th 147 - 324 Cal.Rptr.3d 400

Objectors brought petition for writ of mandate that challenged ballot label for proposition that proposed an amendment to the California Constitution that would allow passage of local bonds for public infrastructure and affordable housing by 55% voter approval rather than the existing 2/3 margin.

The Superior Court, Sacramento County, granted relief in mandate and entered order and judgment that directed the Attorney General to revise the ballot label. Attorney General petitioned for writ of mandate.

The Court of Appeal held that the ballot label, which described proposition as allowing approval of the particular type of bonds with a 55% vote, complied with statutory requirements of a concise and accurate description in terms that were not misleading, despite argument that label should have stated that existing law required a 2/3 vote to approve such bonds.

Ballot label that described proposition as allowing approval of local infrastructure and housing bonds for low- and middle-income Californians with 55% vote complied with statutory requirements of a concise and accurate description in terms that were not misleading, despite argument that label should have stated that existing law required a 2/3 vote to approve such bonds; while the ballot label was undoubtedly prominent in the voter information materials, the fact the title and summary contained information about the existing approval threshold substantially diminished the force of the argument that there was a danger voters would be misled.




LIABILITY - GEORGIA

City of Atlanta v. Perkins

Court of Appeals of Georgia - August 21, 2024 - S.E.2d - 2024 WL 3885489

Pedestrian brought action against city, alleging he was injured when he stepped on city water meter lid that flipped into water meter box and caused him to fall.

Following jury trial, the State Court awarded pedestrian $2,361,700 in damages for negligence and nuisance and $944,680 in attorney fees, then granted city’s motion for judgment notwithstanding verdict with respect to attorney fees and overturned attorney fee award but denied remainder of city’s motion for judgment notwithstanding verdict.

City and pedestrian appealed.

The Court of Appeals held that:




EMINENT DOMAIN - GEORGIA

Satcher v. Columbia County

Supreme Court of Georgia - August 13, 2024 - S.E.2d - 2024 WL 3802370

After property owners provided notice of claims to county but county declined to repair property, owners brought action against county, asserting claims for inverse condemnation, trespass, nuisance, and negligence, based on damage to property arising from allegedly defective stormwater drainage system, and seeking damages and a permanent injunction, among other things.

Before final bench trial, owners’ property sustained alleged additional injury related to stormwater. Following bench trial, the Superior Court found in favor of owners, awarding money damages, for damages incurred both before notice was sent to county and after complaint was filed, and granting owners a permanent injunction that enjoined county from maintaining a defective stormwater drainage system that caused damage to owners’ property. County appealed. The Court of Appeals, among other things, vacated the damages award as to harms occurring after notice was sent to county but affirmed the grant of the injunction. The parties filed cross-petitions for writ of certiorari, which were granted.

The Supreme Court held that:

Injunction entered in property owners’ action against county, which enjoined county from maintaining a defective stormwater drainage system that caused damage to owners’ property, exceeded the scope of the sovereign immunity waiver provided by the Just Compensation Provision; injunction was permanent, and, on its face, injunction’s duration was not limited to what was necessary to stop the alleged taking or damaging until such time as county made prepayment of just and adequate compensation or exercised the power of eminent domain.

Court of Appeals’ opinion vacating damages award as to harms occurring after property owners’ notice-of-claims letter to county did not articulate a general rule of law of the sort that posed a question of gravity warranting Supreme Court’s review, thus supporting vacatur of order granting owners’ petition for certiorari as to that ruling and denial of the petition, in owners’ action against county alleging damage to property arising from allegedly defective stormwater drainage system; Court of Appeals merely held that, on the particular facts of the case, owners could not obtain damages incurred after the presentation of notice.




EMINENT DOMAIN - IDAHO

Zeyen v. Bonneville Joint District, # 93

United States Court of Appeals, Ninth Circuit - August 23, 2024 - F.4th - 2024 WL 3909574

Students’ parents brought § 1983 action against school districts, alleging that payment of fees associated with educational and extracurricular opportunities within public school districts constituted a taking of property without due process in violation of the Takings Clause of the Fifth Amendment.

Parties filed cross motions for summary judgment. First district judge denied school districts’ motion and then denied school districts’ motion for reconsideration. After case was reassigned to a second judge, the United States District Court for the District of Idaho granted school districts’ second summary judgment motion. Parents appealed.

The Court of Appeals held that:

Second district judge’s procedural error in revisiting first district judge’s prior interlocutory order denying summary judgment to school districts in students’ parents’ action alleging that payment of fees for educational and extracurricular opportunities within public school district constituted a taking of property under the Fifth Amendment without making necessary conclusion that enforcement of previous decision would work a manifest injustice was harmless, since second judge’s decision on the merits of summary judgment motion under the Takings Clause was correct.

Neither students nor their parents could possess, use, dispose of, or sell their interest in free public education as provided by the Idaho Constitution’s “free common schools” provision, and thus, interest in free public education did not give rise to a vested private property interest subject to the Takings Clause as would support students’ parents’ claim alleging that payment of fees for educational and extracurricular opportunities within public school district constituted a taking of property without due process in violation of the Fifth Amendment; public education was a variable product, not a consistent, standalone thing, tangible or intangible, over which student had exclusive dominion, as required minimum standards for public education could be, and had been, altered, modified, or abolished.

Fees charged by school districts for educational and extracurricular opportunities were charged on the happening of a contingency, election to enroll students in certain optional courses with associated fees, and as such, they lacked the direct governmental appropriation of a specific, vested monetary interest necessary to give rise to a per se monetary takings claim.

Fees charged by school districts for educational and extracurricular opportunities did not amount to an exaction in violation of the Takings Clause; fees were equitably paid by students who wished to exercise an option to participate in those activities and classes and not imposed generally on all students whether they participated in such activities or not.

Students parents could not allege that property, money paid for educational and extracurricular opportunities within school districts, was taken for public use, thus precluding claim under the Takings Clause; fees did not benefit the public because they wee directly tied to conferral of specific benefits extended to students in exchange for the fees.




PUBLIC UTILITIES - IDAHO

Wandruszka v. City of Moscow

Supreme Court of Idaho, Moscow, April 2024 Term - August 19, 2024 - P.3d - 2024 WL 3863546

Landlords brought declaratory judgment action against city challenging validity of city’s revised utility billing process for city water service reflecting city’s new policy of no longer contracting directly with tenants and requiring landlords to assume liability for tenants’ unpaid water bills.

The Second Judicial District Court granted summary judgment in part and denied it in part to each party. Landlords and city both appealed.

The Supreme Court held that:




EMINENT DOMAIN - NORTH CAROLINA

Department of Transportation v. Bloomsbury Estates, LLC

Supreme Court of North Carolina - August 23, 2024 - S.E.2d - 2024 WL 3909395

Department of Transportation (DOT) initiated a taking action against condominium association and developer, and parties entered consent judgment that established $3,950,000 was just compensation for the taking but did no establish how the just compensation would be divided between developer and association.

During pendency of the taking action, developer and association each filed a separate collateral complaint against each other regarding the rights to the property. Developer then filed motion for an issues hearing in the DOT taking action.

The Superior Court consolidated all three actions and entered summary judgment for developer, concluding that it was entitled to $3,350,000 and remainder of compensation should be assigned to association, and then entered final judgment. Association appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. Developer filed petition for discretionary review, and it was granted.

The Supreme Court held that:

Interlocutory order in developer’s action against condominium association, allowing equitable reformation of fifth amendment to condominium declaration so as to extend developer’s right to complete second phase of condominium project after Department of Transportation’s (DOT) temporary taking had terminated, had preclusive effect in DOT’s taking hearing held to determine just compensation allocated to developer and condominium association, and thus, trial court properly distributed just compensation from the taking prior to resolution of parties’ issues in developer’s and association’s collateral actions; issue of validity of condominium declaration’s fifth amendment was only issue that affected parties’ rights and it was fully litigated in developer’s action since association enjoyed full and fair opportunity to litigate issue.

Trial court did not abuse its discretion in distributing, on summary judgment, just compensation from Department of Transportation’s (DOT) taking of property from a condominium construction project for a railroad right of way in a manner that compensated developer for loss of its development right and allocated residual to condominium association, despite association’s contention that material issues of fact existed as to whether association owned property and development rights, where appraisers agreed, based on validity of amendment to condominium declaration that extended developer’s right to complete second phase of condominium project after DOT’s temporary taking had terminated, developer was entitled to compensation for loss of development rights.




EMINENT DOMAIN - PENNSYLVANIA

Wolfe v. Reading Blue Mountain

Supreme Court of Pennsylvania - August 20, 2024 - A.3d - 2024 WL 3868639

After railroad filed declaration of taking to condemn portion of private landowners property in order to place new rail siding to connect to its main rail line, owners filed complaint and emergency motion for preliminary injunction.

The Court of Common Pleas granted preliminary injunction pending hearing, and following hearing, sustained owners’ objections, and then denied reconsideration. Railroad appealed.

The Commonwealth Court. Owners’ petition for allowance of appeal was granted.

The Supreme Court held that railroad’s proposed taking of owners’ property was for private, rather than public purpose.

Public would not be primary and paramount beneficiary of railroad’s proposed taking of private landowners’ property in order to rebuild rail siding that Public Utility Commission (PUC) had previously suspended, in order to connect to main railroad line, thus barring railroad’s taking of land, under Fifth Amendment and Pennsylvania Constitution; rail siding across owners property would not be used to transport either goods or passengers, only beneficiary of taking would be asphalt company, for which railroad sought reinstallation of rail siding to connect company to railroad’s network, to facilitate company’s ability to transport materials by rail, company used trucks and private haulers to transport materials it sought to import via rail, and railroad did not have to traverse owners’ land to accomplish its goal of connecting company to rail network.




EMINENT DOMAIN - SOUTH DAKOTA

Betty Jean Strom Trust v. SCS Carbon Transport, LLC

Supreme Court of South Dakota - August 21, 2024 - N.W.3d - 2024 WL 3895866 - 2024 S.D. 48

Landowners who refused to allow pipeline company, which was developing an underground pipeline network to transport carbon dioxide, pre-condemnation survey access brought separate actions against company for declaratory and injunctive relief that would prevent the surveys.

Company brought one action in which it sought declaratory and injunctive relief permitting survey access.

The Circuit Court, Third Judicial Circuit and the Circuit Court, Fifth Judicial Circuit granted summary judgment to company on all issues in all the cases. Landowners appealed, and the appeals were consolidated on landowners’ motion.

The Supreme Court held that:

 

 




BANKRUPTCY - TEXAS

Porretto v. City of Galveston Park Board of Trustees

United States Court of Appeals, Fifth Circuit - August 21, 2024 - F.4th - 2024 WL 3886181

After Chapter 7 trustee abandoned privately owned beachfront property along Texas coastline back to debtor, debtor filed adversary complaint against city, city’s park board, the Texas General Land Office (GLO), and GLO’s Commissioner, alleging, inter alia, that defendants’ postpetition actions on and near her beach constituted takings without just compensation in violation of the Fifth Amendment.

Following sua sponte transfer of case from bankruptcy court, defendants filed renewed motions to dismiss, and debtor requested opportunity to amend complaint. The United States District Court for the Southern District of Texas granted defendants’ motion to dismiss and denied debtor leave to amend and subsequently denied debtor’s motion for recusal, as well as her motion for new trial. Debtor appealed.

The Court of Appeals, held that:




LABOR & EMPLOYMENT - CALIFORNIA

Stone v. Alameda Health System

Supreme Court of California - August 15, 2024 - P.3d - 2024 WL 3819163

Employees, who formerly worked at hospital, brought putative class action against employer, which was county health system established by county board of supervisors, for alleged violations of wage orders and statutes governing meal and rest breaks and full and timely payment of wages, for penalties under Labor Code Private Attorneys General Act of 2004 (PAGA), and for other claims. Employer demurred.

The Superior Court sustained demurrer without leave to amend, finding provisions of Labor Code and wage orders at issue did not apply to employer as public agency. The First District Court of Appeal reversed in part. Petition for review was granted.

The Supreme Court held that:

Government employers were not “employers” within meaning of Labor Code provisions imposing meal-and-rest-break obligations on employers and wage order provisions entitling hospital workers to meal and rest breaks; wage order required “employer” to be “person” as defined by Labor Code, Labor Code in turn limited definition of “person” to “any person, association, organization, partnership, business trust, limited liability company, or corporation,” thereby excluding entities not expressly mentioned, legislature specified that other provisions of Labor Code applied to public employers, wage order, which covered hospital workers, expressly excluded public employees from its scope absent contrary language in a provision, and legislature chose not to displace wage order’s exclusion.

Text of statute enabling specific county’s board of supervisors to create county health system to provide medical care to indigent residents demonstrated that legislature considered health system to be quasi-governmental “public entity,” for purpose of determining whether health system was exempt from meal-and-rest-break obligations imposed on employers under Labor Code and under wage order covering hospital workers; enabling statute described health system as “public agency” and made its affairs intertwined with and dependent upon county, health system as public hospital authority was “public entity” as defined in Health and Safety Code, and enabling statute set forth health system’s rights, liabilities, and exemptions under laws applying specifically to public entities.

In statute enabling specific county’s board of supervisors to create county health system, subdivision stating that health system “shall be a government entity separate and apart from the county, and shall not be considered to be an agency, division, or department of the county” did not indicate legislature meant to subject health system to meal-and-rest-break requirements of Labor Code and of wage order covering hospital workers notwithstanding such requirements’ general exemption of public entities; subdivision expressly classified health system as “government entity,” public-entity exemption did not extend only to divisions of a state or local government body, and enabling statute gave health system some of the same powers, obligations, and protections as a division of government.

Definitions of “political subdivision” in False Claims Act, which included any “legally authorized local governmental entity with jurisdictional boundaries,” and California Voter Participation Rights Act, which referred to “geographic area of representation created for the provision of government services,” did not impose requirement of “geographic jurisdiction” for county health system or any other public employer to qualify as “political subdivision” under Labor Code’s definition; Labor Code did not refer to need for “geographic jurisdiction,” and similarly broad definitions of term “political subdivision” appeared in other codes without any requirement of geographic jurisdiction.

Whether a public entity is exempted from meal and rest break obligations imposed on employers by the Labor Code and the wage order covering hospital employees does not depend on whether applying those obligations to the public entity in question would cause infringement of sovereign powers; besides the absence of a statutory basis, such an outcome would frustrate the legislature’s clear intent to exclude public entities from the Labor Code requirements at issue.

The term “municipal corporation” in the Labor Code section stating that certain wage-related provisions “do not apply to the payment of wages of employees directly employed by any county, incorporated city, or town or other municipal corporation” refers to something other than a county, incorporated city, or town; the only reasonable interpretation of this section is that the legislature knew from the decided cases that “incorporated city or town” referred to a municipal corporation in the strict sense, and intended that “or other municipal corporation” should refer to municipal corporations in the commonly accepted sense, that is, public corporations or quasi-municipal corporations, and this construction is consistent with legislative history and administrative interpretations.

County health system, which legislature authorized county board of supervisors to create to provide medical care to indigent residents, was “municipal corporation” within meaning of Labor Code section stating that certain wage-payment provisions, including those governing semimonthly payments and creating penalty and cause of action for failure to make payments, “do not apply to the payment of wages of employees directly employed by any county, incorporated city, or town or other municipal corporation.”

The Labor Code Private Attorneys General Act (PAGA) exempts public employers from penalties for violations of Labor Code provisions which establish their own penalties recoverable by the Labor and Workforce Development Agency; PAGA specifies that the Labor Code’s definition of person, which excludes public entities, applies throughout PAGA, including to the provisions referring to employers subject to suit as “persons,” legislative history demonstrates that PAGA’s use of this definition of “person” was intentional, and requiring public entities to pay PAGA penalties would contravene the public policy behind the statute shielding public entities from punitive sanctions; disapproving Sargent v. Bd. of Trustees of Cal. State Univ., 61 Cal.App.5th 658, 276 Cal.Rptr.3d 1.




LIABILITY - NEBRASKA

Ryan v. State

Supreme Court of Nebraska - August 9, 2024 - N.W.3d - 317 Neb. 337 - 2024 WL 3732939

Inmate brought negligence action against State pursuant to the State Tort Claims Act (STCA), alleging that Department of Correctional Services (DCS) failed to fulfill its duty under state regulations to investigate his allegation that other inmates stole his property.

The District Court dismissed for lack of subject matter jurisdiction. Inmate appealed.

The Supreme Court held that inmate disciplinary procedure statutes and regulations did not give rise to a tort duty of State to investigate alleged theft of inmate’s property.

Inmate disciplinary procedure statutes and regulations did not give rise to a tort duty of State to investigate alleged theft of inmate’s property by other inmates, and therefore inmate did not have an actionable negligence claim against State under the State Tort Claims Act (STCA); statutes and regulations were enacted to prescribe disciplinary procedures for inmates who allegedly engaged in such misconduct.




PUBLIC EMPLOYMENT - OHIO

Harmon v. City of Cincinnati

Supreme Court of Ohio - August 6, 2024 - N.E.3d - 2024 WL 3657975 - 2024-Ohio-2889

City employees, who were members of city employees union, appealed determination of city’s civil service commission that employees were not entitled to hearing on their appeal to commission of city’s decision to place them on leave under emergency leave program due to COVID-19 pandemic.

The Court of Common Pleas reversed. City and commission appealed. The First District Court of Appeals held that Court of Common Pleas had jurisdiction to consider employees’ appeal. The Supreme Court accepted city and commission’s appeal.

The Supreme Court held that:




CONDUIT BONDS - TEXAS

River Creek Development Corporation and City of Hutto, Texas v. Preston Hollow Capital, LLC

Court of Appeals of Texas, Austin - August 22, 2024 - Not Reported in S.W. Rptr. - 2024 WL 3892448

River Creek Development Corporation (River Creek) and the City of Hutto, Texas (the City), appealed from the trial court’s final judgment rendered in favor of Preston Hollow Capital, LLC; 79 HCD Development, LLC; Public Finance Authority; and U.S. Bank National Association. The judgment granted the parties’ respective summary-judgment motions and awarded each of them attorney’s fees and costs.

In June 2018, the City passed a resolution authorizing creation of a Public Improvement District (the PID) to undertake and finance public improvements for the benefit of property within the PID. The PID’s 2018 Service and Assessment Plan identified the initial improvements at a cost of $17.4 million.

In September 2018, the City passed a resolution authorizing the creation of River Creek, a local government corporation, to “assist with the financing” of the PID development pursuant to Tex. Transp. Code § 431.101.

In December 2018, the City, River Creek, and other parties executed a series of agreements to secure the development and financing of the PID. Among the parties in some of those agreements is appellee Public Finance Authority (PFA), a Wisconsin-based governmental entity. Rather than issue the bonds themselves, the City and River Creek chose to structure the transaction using PFA as a conduit issuer of the bonds to avoid potential liability and reduce financial risk.

Following a series of internal governmental disruptions, River Creek and the City brought this action for declaratory relief.

They sought the following declarations:

  1. An “installment sales contract” described by the interlocal agreement provides “insufficient legal authority for all stated installment payments due under such a contract to be authorized costs of improvements under the PID Act”;
  2.  The bonds were not issued in strict compliance with the PID Act and applicable state law;
  3.  Transportation Code Section 431.006 limits the applicability of the general authority of Chapter 22, Business Organizations Code, because of the express statutory requirement in Section 431.071 that “notes” be submitted to the attorney general or the express statutory statement in Section 431.108 that the operations of a local government corporation are governmental; and
  4.  Government Code Section requires all promissory notes issued by a Chapter 431 corporation or a local government corporation be submitted to the attorney general for examination.

Preston Hollow answered and filed a counterclaim seeking a declaratory judgment that:

  1.  The loan agreement and promissory note are valid and enforceable,
  2.  The bonds did not need to be submitted to the AG for review and approval, and
  3.  The City and River Creek lawfully entered the interlocal agreement.

The Court of Appeals held that:

  1. The loan agreement was valid and enforceable;
  2. The promissory note is valid and enforceable;
  3. The bonds issued by PFA did not need to be submitted to the AG for approval; and
  4. The City and River Creek lawfully entered into the interlocal agreement, including its provisions requiring the City to make payments from its levied assessments to River Creek to secure River Creek’s issuance of indebtedness to finance the improvements.

“We conclude that the legislature’s silence on the consequences of failure to obtain AG approval, its failure to expressly condition the validity and enforceability of a Section 431.070 bond or note on AG approval, and its express requirement that a corporation merely “submit” the subject instrument “for examination” (as opposed to, e.g., “obtain AG approval”) are dispositive and support the trial court’s challenged first and second declarations.”

“The ‘indebtedness’ that River Creek issued to PFA via the promissory note and loan agreement—including any ‘costs of issuance,’ such as transaction-financing costs or bond-issuance fees, that River Creek undertook as part of that indebtedness—falls under Section 372.026(f), and River Creek is entitled to recoupment of such costs through the interlocal agreement.”

“We hold that Section 372.026 expressly authorizes the interlocal agreement to require the City to make payments from its assessments to River Creek to secure its costs of issuing debt to PFA and thus that the interlocal agreement is not void as appellants contend.”

 

 




LABOR - ARIZONA

Gilmore v. Gallego

Supreme Court of Arizona - July 31, 2024 - P.3d - 2024 WL 3590669

City employees who belonged to collective bargaining unit but were not members of union brought action against city, alleging that provisions in memorandum of understanding (MOU) between city and union governing release time for union purposes violated plaintiff employees’ rights to free speech and free association, their right to work, and the Gift Clause of state constitution.

Union intervened as defendant. The Superior Court entered summary judgment for city and union and granted them attorneys’ fees against employees. Employees appealed. The Court of Appeals affirmed in part and vacated in part. Employees petitioned for review, which was granted.

The Supreme Court held that:

Under memorandum of understanding (MOU) between city and union governing release time of city employees for union purposes, it was city who paid for the release time, rather than employees who worked in bargaining unit but did not belong to union, and therefore the release time did not violate the non-member employees’ free-speech or free-association rights or their right to work, even though MOU contained provision stating that the cost to city for the release positions “has been charged as part of the total compensation” detailed in MOU; “total compensation” referred to city’s total expenditure under MOU, not sum entitlement of employees, and no evidence suggested that, absent release time, the non-member employees’ pay or benefits would necessarily be commensurately increased.

Portions of memorandum of understanding (MOU) between city and union providing for release time of city employees for union purposes were not supported by adequate consideration and thus violated Gift Clause of state constitution, in case involving MOU which provided for, inter alia, four full-time, paid release positions for union members “to engage in lawful union activities” and a bank of 3,183 additional paid release time hours per year for union members “to engage in lawful union activities”; annual cost of release time was estimated at $499,000, and benefits to city consisted of few tangible obligations along with the general promotion of cooperative labor relations.




PUBLIC RECORDS - MARYLAND

The Abell Foundation v. Baltimore Development Corporation

Appellate Court of Maryland - August 2, 2024 - A.3d - 2024 WL 3633431

Requestor of records relating to payment-in-lieu-of-taxes agreement (PILOT agreement) between city and developer brought action against city entities, including mayor’s office and city council, alleging city violated Maryland Public Information Act (MPIA) by withholding responsive documents, failing to explain redactions, and failing to justify its application of exemptions and privileges.

City moved to dismiss or for summary judgment. Developer intervened and joined city’s motion. The Circuit Court granted summary judgment in favor of city. Requestor appealed.

The Appellate Court held that:




STANDING - MINNESOTA

Minnesota Voters Alliance v. Hunt

Supreme Court of Minnesota - August 7, 2024 - N.W.3d - 2024 WL 3681675

Taxpayers and their association filed petition for writ of quo warranto or declaratory judgment, alleging that Re-Enfranchisement Act provision allowing individuals convicted of a felony to vote when not incarcerated for such offense violated provision of Minnesota Constitution prohibiting persons convicted of a felony from voting “unless restored to civil rights” and that Act’s authorization of use of public funds to educate voters about voting-right restoration was therefore unlawful.

Voters with felony convictions intervened as of right. District court denied petition for lack of standing. Taxpayers and association appealed, and accelerated review was granted.

The Supreme Court held that:

Taxpayer standing does not exist when a taxpayer simply seeks to generally restrain illegal actions on the part of public officials; rather, taxpayer standing is recognized only when the central dispute involves alleged unlawful disbursements of public funds; overruling Oehler v. City of St. Paul, 174 Minn. 410, 219 N.W. 760, and McKee v. Likins, 261 N.W.2d 566.

Expenditures of public funds, pursuant to Re-Enfranchisement Act, to educate voters about Act’s restoration of right to vote to non-incarcerated individuals convicted of a felony were incidental to Act’s substantive restoration of voting right, and thus, taxpayers lacked taxpayer standing to bring petition for writ of quo warranto or declaratory judgment challenging Act based on contentions that voting-right restoration violated section of Minnesota Constitution prohibiting persons convicted of a felony from voting “unless restored to civil rights” and that Act’s authorization of expenditures of public funds to educate voters about voting-right restoration was unlawful; voting rights could be restored without Legislature appropriating any money to educate voters about such change.




ZONING & PLANNING - MONTANA

Johnson v. City of Bozeman

Supreme Court of Montana - August 6, 2024 - P.3d - 2024 WL 3665299 - 2024 MT 168

City residents brought action to challenge zoning provision within city’s amended unified development code which reclassified fraternity and sorority housing as “group living” which was permitted in neighborhood.

The District Court of the Eighteenth Judicial District granted residents’ partial motion for summary judgment and declared the reclassification void ab initio. City appealed.

The Supreme Court held that:

City’s amended unified development code, which reclassified fraternity and sorority housing as “group living” that was permitted in neighborhood, was not void ab initio due to insufficient notice to city residents, but rather the 30-day statute of limitations on residents’ right to challenge the revised ordinance did not begin to run until the residents received notice of the revision, or reasonably should have known of the revision.

Thirty-day statute of limitations for actions to set aside an agency decision, rather that default five-year statute of limitations, applied to residents’ challenge to zoning provision within city’s amended unified development code which reclassified fraternity and sorority housing as “group living” permitted in neighborhood.




HIGHER ED - MONTANA

Cordero v. Montana State University

Supreme Court of Montana - August 6, 2024 - P.3d - 2024 WL 3665298 - 2024 MT 167

Student brought action against state university, alleging breach of express contract, breach of implied contract, a due process violation, unjust enrichment, a taking, and inverse condemnation based on measures which university took to limit services during COVID-19 pandemic.

The District Court granted university’s motion to dismiss for failure to state a claim, and student appealed.

The Supreme Court held that:




TELECOM - OHIO

Towerco 2013, LLC v. Berlin Township Board of Trustees

United States Court of Appeals, Sixth Circuit - August 6, 2024 - F.4th - 2024 WL 3665539

During pendency of state court action brought by township Board of Trustees and township, which had been removed to federal court by company that was hired by wireless provider to construct cellular tower on school district property, and thereafter remanded back to state court, seeking a declaratory judgment that company was required to adhere to township’s zoning regulations, and after negotiations towards a mutually agreeable resolution pursuant to joint stay agreement proved unsuccessful, company brought action in federal court against township and township’s Board of Trustees, alleging claims including violations of the Telecommunications Act (TCA).

The United States District Court for the Southern District of Ohio granted plaintiff’s motion for preliminary injunction to enjoin defendants from preventing completion and deployment of cell tower, and denied defendants’ motion to stay injunction. Parties cross-appealed, and the Court of Appeals granted defendants’ motion for stay pending outcome of appeal.

The Court of Appeals held that:




STANDING - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States Court of Appeals, First Circuit - July 25, 2024 - F.4th - 2024 WL 3533427

Following determination by court, under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), that “Law 29,” Puerto Rico legislation purporting to eliminate burden on Puerto Rico’s municipalities of complying with the Commonwealth’s reformed public pension funding scheme, violated PROMESA and thus was “a nullity” and “of no effect,” not-for-profit membership organization comprised of municipalities’ mayors brought adversary proceeding against the Financial Oversight and Management Board for Puerto Rico and others, asserting that Board lacked authority to recover the funds retained by municipalities under the auspices of Law 29 during the year before it was declared void.

Defendants moved to dismiss.

The United States District Court for the District of Puerto Rico granted motions. Organization appealed.

The Court of Appeals held that:




SPECIAL ASSESSMENTS - WASHINGTON

SHG Garage SPE v. City of Seattle

Court of Appeals of Washington, Division 1 - August 5, 2024 - P.3d - 2024 WL 3647666

Property owners sought review of local improvement district (LID) special assessments levied against them for improvements to waterfront area.

The Superior Court nullified assessments. City appealed.

The Court of Appeals held that:

Testimony from expert appraiser did not demonstrate that properties in local improvement district (LID) did not benefit from improvements and was thus insufficient to overcome presumption that city’s special assessment levied against property owners was valid; owners alleged that expert’s testimony provided sufficient information to calculate an alternative special benefit amount and at same time, they contended that LID study and potential benefit estimates were too speculative to allow for a reliable counter-appraisal.

City’s method of special assessment for local improvements to waterfront was not founded on a fundamentally wrong basis, as would provide grounds to correct or annul assessment, due to failure by its special benefit study to analyze how viaduct removal impacted property values by the waterfront; while study valued the before improvement scenario by assuming a viaduct had been removed, it provided enough information for owners to evaluate how properties were valued in before improvement scenario, such as relevant market information on rents and vacancy and market conditions, as well as how properties were valued in the after improvement scenario.

City’s special benefit study’s failure to account for property value changes due to COVID-19 pandemic was not basis on which to conclude special assessments for local improvements to waterfront area were founded on a fundamentally wrong basis, as required for court to correct or annul special assessments, where property appraisals were done before the onset of the pandemic.

Special assessment for local improvements to waterfront was not founded on a fundamentally wrong basis, as would provide grounds to correct or annul assessment, due to failure to comply with professional appraisal standards governing direct property appraisals, because property appraisal at issue was a mass appraisal, which was governed by separate standards.

City’s special benefit study complied with applicable professional appraisal standards governing mass appraisals for determining special benefits and thus, valuations did not provide grounds to conclude special assessments for local improvements to waterfront area were founded on a fundamentally wrong basis, as required for court to correct or annul special assessments, absent evidence showing that the valuations were inaccurate; study considered recent sales of comparable commercial and residential properties, explained how it calculated cost/benefit ratio by dividing total assessment cap by total estimated special benefit assessable to the properties, and detailed how special benefits were calculated, with spreadsheets for each owners’ properties that showed detailed before and after valuations.

Property owners who challenged city’s special assessments for local improvements to waterfront area failed to show assessments were grounded on fundamentally wrong basis due to city benefit study’s lack of property-specific analysis, as required for court to correct or annul assessments, absent evidence showing that percentage increases were inaccurate; study adequately documented and explained its before and after-improvement property valuations, and since a mass appraisal rather than direct appraisal was conducted, city was not required to produce property-specific analysis sought by owners.

Property owners who challenged city’s special assessments for local improvements to waterfront area failed to show assessments were arbitrary and capricious based on timing of property appraisal, as required for court to correct or annul assessments; owners contended that appraisal was completed too far in advance of improvements, but they provided no authority requiring that valuations be made immediately before special benefits attach, and they did not offer any evidence or argument suggesting that time between the appraisal and completion of improvements rendered valuations inaccurate.

City did not act arbitrarily and capriciously by instructing that its special benefit study treat separate local improvement district (LID) improvements as one continuous improvement when they were not, as required for court to correct or annul special assessments that were levied upon owners for improvements to waterfront area, where city complied with applicable statutes governing continuous and contiguous improvements.

Property owners who challenged city’s special assessments for local improvements to waterfront area failed to show that city hearing examiner to whom owners presented their case misapplied presumption of correctness when examiner disregarded testimony from owners’ expert witnesses, as required for court to correct or annul assessments, where record reflected that the examiner considered all the evidence and determined that city’s evidence was more persuasive than owners’ evidence.

City’s process for special assessments in local improvement district (LID) was not arbitrary and capricious, as required for court to correct or annul special assessments, due to city’s failure to independently review property owners’ appeal of special assessment levied against them for improvements to waterfront area, where city appropriately chose to delegate review of appeal to a committee, as authorized by law.




ZONING & PLANNING - ALABAMA

City of Helena v. Pelham Board of Education

Supreme Court of Alabama - August 2, 2024 - So.3d - 2024 WL 3629519

City filed a complaint against board of education of neighboring city, seeking declaratory and injunctive relief based on its proposition that the board’s construction of athletic fields on land that board owned but that was located within plaintiff’s city corporate limits violated plaintiff city’s zoning ordinance.

Board filed a counterclaim seeking monetary damages and declaratory and injunctive relief based on its claim that it was not subject to plaintiff city’s zoning ordinance.

The Circuit Court granted the board a preliminary injunction. Plaintiff city appealed. The Supreme Court reversed and remanded. On remand, the Circuit Court entered judgment that plaintiff city lacked the authority to enforce its zoning ordinance against the athletic-field-construction project. Plaintiff city appealed.

The Supreme Court held that:

Trial court’s judgment that city lacked authority to enforce its zoning ordinance against neighboring city’s board of education as to board’s construction of athletic fields on land that board owned and that was within city’s corporate limits was appealable as an interlocutory order on a request for injunctive relief, even though court ostensibly was granting declaratory relief; both sides in the dispute had sought injunctive relief, trial court refused city’s request for an injunction, and the order appeared, at least in part, to be injunctive in nature since it required city not to enforce its zoning ordinance with respect to the particular property and it expressly explained why board had sustained an irreparable injury and also lacked an adequate remedy at law.

Statute stating general powers of a city board of education did not preclude city board from constructing athletic fields on land that board owned but that was within a neighboring city’s corporate limits; statute granted board all powers necessary or proper for administration and management of high school, which was located within corporate limits of board’s city, those powers included purchase of property and development of property for management of high school, and statute did not set territorial limits on board’s powers.

City was not permitted to enforce its zoning ordinance against property that was within city’s corporate limits but that neighboring city’s board of education owned and wished to develop into athletic fields; city boards of education, in their governance of public education, were agencies of the State, and board’s construction of athletic fields on the property constituted the State operating in city’s territory.




PUBLIC UTILITIES - CALIFORNIA

California Community Choice Association v. Public Utilities Commission

Court of Appeal, First District, Division 4, California - July 15, 2024 - 323 Cal.Rptr.3d 322

Organization that represented interests of community choice electricity aggregation programs filed petition for judicial review that sought reversal of Public Utilities Commission’s (PUC) resolution setting effective dates for programs’ expansions and its decision denying rehearing of the resolution.

The Court of Appeal held that:

Organization that represented interests of community choice electricity aggregation programs had standing under associational standing doctrine to file on programs’ behalf a writ petition for judicial review of Public Utilities Commission’s (PUC) resolution setting effective dates for programs’ expansions and decision denying rehearing of the resolution, where there was no reason to question whether programs would otherwise have standing on their own, organization was seeking to protect interests that were germane to its purpose, and programs’ participation was required.

Public Utilities Commission’s (PUC) resolution setting delayed effective dates for community choice electricity aggregation programs’ expansions and its decision denying rehearing of the resolution were quasi-legislative, rather than quasi-adjudicative, and thus, it was subject to limited scope of review under statute applicable to any proceeding other than the enumerated proceedings that were subject to full review standard; PUC determined, as a matter of policy or discretion, that expansions for the two programs should be delayed in order to ensure that expansion did not result in specific type of cost shifting, and decision did not specifically involve a complaint or enforcement proceeding or ratemaking or licensing decision of specific application that was addressed to particular parties.

Public Utilities Act section pertaining to aggregation of customer electric loads with community choice aggregators provided the Public Utilities Commission (PUC) jurisdiction to delay expansion dates of community choice aggregation programs upon conclusion that such expansion would result in impermissible cost shifting; statute prohibited a community choice aggregation program from furnishing electricity to customers until PUC had determined cost recovery that must be paid by customers of that program and that PUC must designate earliest possible effective date for implementation of a community choice aggregation program, taking into consideration impact on any annual procurement plan of the electrical corporation that has been approved by PUC.

Public Utilities Commission (PUC) did not act arbitrarily, capriciously, or entirely without evidentiary support in setting an effective date for expansion of two community choice electricity aggregation programs that was one year after date proposed by programs in their implementation plans, based on concerns that expansion would result in future cost shifting; given programs’ history of resource deficiencies, which purportedly resulted in cost-shifting to non-customers, and programs’ failure to present any evidence demonstrating that they had adequately addressed resource adequacy going forward, it was not unreasonable to conclude that programs’ failure to procure adequate resources would result in greater cost shifting in they were permitted to expand to serve more customers.




LIABILITY - CALIFORNIA

West Contra Costa Unified School District v. Superior Court of Contra Costa County

Court of Appeal, First District, Division 5, California - July 31, 2024 - Cal.Rptr.3d - 2024 WL 3593932

High-school student who was allegedly the victim of sexual assaults by a school district employee brought action against school district, alleging negligence, negligence per se, negligent hiring, retention, and supervision of an unfit employee, negligent supervision of a minor, and negligent failure to warn, train, or educate.

The Superior Court overruled school district’s demurrer to the extent it was based on constitutional prohibition of gifts of public funds. School district petitioned for writ of mandate, and contended that law resurrecting extinguished childhood sexual assault claims against public entities violated school district’s right to due process under both the federal and California Constitutions.

The Court of Appeal held that:

Retroactive waiver of Government Claims Act’s (GCA) claim presentation requirement for consent to suit by law providing a three-year window within which plaintiffs were permitted to bring childhood sexual assault claims that were otherwise barred by a lapsed claim presentation deadline did not create new substantive liability for the underlying alleged wrongful conduct, and thus law was not a “gift of public funds,” within meaning of constitutional prohibition against gift of public funds; school district’s substantive liability existed independently of GCA’s claim presentation requirement when the alleged wrongful conduct occurred, and timely presentation of a claim was a condition to waiver of government immunity, but it was not necessary to render underlying conduct tortious.

Law providing a three-year window within which plaintiffs were permitted to bring childhood sexual assault claims that were otherwise barred by statutes of limitations or lapsed government tort claim presentation deadlines served valid public purpose of providing relief to victims of childhood sexual assault who failed to file timely claims by providing an opportunity for them to obtain compensation from public entities that employed abusers, so that public purpose exception to constitutional prohibition against gift of public funds applied, regardless of any deterrence as to future sexual assaults; class of persons benefited by law was sufficiently defined, even if victims were required to prove their eligibility for compensation in individual lawsuits.

School district forfeited argument that it had standing to assert constitutional rights of current students negatively impacted by potential liability under law that provided a three-year window within which plaintiffs were permitted to bring childhood sexual assault claims against public entities that would otherwise have been barred because of statutes of limitations or Government Claims Act’s (GCA) claim presentation requirements, by making argument for the first time at oral argument.




EMINENT DOMAIN - FEDERAL

Russellville Legends, LLC v. United States

United States Court of Federal Claims - July 24, 2024 - Fed.Cl. - 2024 WL 3516861

Property owner filed Fifth Amendment takings claim against government based on Army Corps of Engineers’ denial of owner’s application for permit to add fill and construct housing on property over which Corps had previously purchased flowage easement and then later executed consent agreement with previous owner, permitting him to add up to 7,000 cubic yards of fill to property in easement area.

Government moved to dismiss for failure to state claim.

The Court of Federal Claims held that:

Property owner lacked cognizable property interest in freely constructing housing on its property, as would be required for owner to state takings claim seeking just compensation based on Army Corps of Engineers’ denial of owner’s application for permit to add fill and construct housing on property over which Corps had purchased flowage easement from previous owner, since Corps asserted pre-existing limitation on owner’s title in that flowage easement over property was in effect when owner purchased property and gave government perpetual right to overflow, flood, and submerge land within easement, prohibited structures for human habitation in easement, and required Corps’ approval for construction of any other structures and/or appurtenances, due to flooding risks.

Under Arkansas law, Army Corps of Engineers did not release its rights to flowage easement over current owner’s property by executing consent agreement, stating that government “gives consent” to predecessor owner for placement of fill material onto easement, and thus, current owner lacked cognizable property interest in constructing housing on property that owner alleged passed to it upon purchasing property from predecessor, as would be required for owner to state takings claim based on Corps’ denial of owner’s application for permit to add fill and construct housing on property, since agreement did not contain words of transfer, as term “gives” only referred to consent, not to easement rights, and parties did not intend for government to release its rights under easement.

Under Arkansas law, owner of property had no rights under consent agreement, stating that government “gives consent” to predecessor owner for placement of fill material onto Army Corps of Engineers’ flowage easement over property, and thus, current owner lacked cognizable property interest in constructing housing on property that owner alleged passed to it upon purchasing property from predecessor, as would be required for owner to state takings claim based on Corps’ denial of owner’s application for permit to add fill and construct housing on property, since agreement did not run with land because Corps granted consent to predecessor owner personally.

Penn Central factor considering economic impact of the alleged regulatory taking weighed against finding regulatory taking based on Army Corps of Engineers’ denial of property owner’s application for permit to add fill and construct housing on property over which Corps held flowage easement and had executed consent agreement with previous owner, permitting him to add up to 7,000 cubic yards of fill to property in easement area, since owner alleged that denial of permit caused property to decrease 55% in value, but that was on low end of spectrum of loss in value for which just compensation was required, and damage to owner’s intended business of constructing housing on property was not compensable under Takings Clause.




OPEN MEETINGS - MICHIGAN

Pinebrook Warren, LLC v. City of Warren

Supreme Court of Michigan - July 31, 2024 - N.W.3d - 2024 WL 3610190

Unsuccessful applicants for medical marijuana dispensary licenses brought action against city, alleging violations of Open Meetings Act (OMA) during the applicant selection process by city’s medical marijuana review committee.

License recipients intervened.

The Circuit Court granted applicants’ motion for partial summary disposition, denied city’s cross-motion for summary disposition, and denied recipients’ motion for reconsideration. All parties appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. Applicants sought leave to appeal, which was granted.

The Supreme Court held that medical marijuana review committee was a “public body” subject to OMA requirements.

City’s medical marijuana review committee satisfied the definition of “public body” under the Open Meetings Act (OMA), and thus committee was required to comply with OMA when considering applications for medical marijuana dispensary licenses, even though city’s marijuana ordinance stated that committee had only the power to make recommendations, where ordinance empowered committee to exercise the governmental function of scoring applications, committee’s scoring of applications went to the essence of who would be selected for a license, and city council voted to approve applications that were the most highly ranked by committee without any independent consideration of the merits of applications.

Language in city’s marijuana ordinance stating that license applications and plans for medical marijuana dispensaries were to be transmitted to city’s medical marijuana review committee for approval did not mean, on its face, that the committee could approve applications for dispensary licenses; in context, the language meant that the committee was the body to whom applications were first submitted, and ordinance made clear that only city council could approve dispensary licenses.

City council delegated its job as a public body to city’s medical marijuana review committee with respect to applications for medical marijuana dispensary licenses, and thus committee was subject to the requirements of the Open Meetings Act (OMA), where city’s marijuana ordinance empowered committee to score license applications, committee scored applications, and city council voted to approve applications that were the most highly ranked by committee without any independent consideration of the merits of applications.




ELECTIONS - MINNESOTA

Jacobs v. City of Columbia Heights

Supreme Court of Minnesota - July 24, 2024 - N.W.3d - 2024 WL 3514670

Elected member of city council filed a petition seeking to invalidate the recall petition filed against her and to cancel the special recall election scheduled by the city.

The District Court denied council member’s petition. The Supreme Court granted council member’s petition for accelerated review.

The Supreme Court held that recall petition’s allegation that council member made racially insensitive comments to candidate and subsequently lied about the incident failed to allege malfeasance or nonfeasance, the constitutional prerequisites to recall an elected municipal official, and consequently failed to lawfully trigger a special recall election.




POLITICAL SUBDIVISIONS - MONTANA

Town of Kevin v. North Central Montana Regional Water Authority

Supreme Court of Montana - July 30, 2024 - P.3d - 2024 WL 3579464 - 2024 MT 159

Town brought action against regional water authority, seeking a declaratory judgment under the Uniform Declaratory Judgment Act (UDJA) that the town was not, and never had been, a member of regional water authority, among other declaratory relief, and also seeking attorney fees.

Following a bench trial, the District Court entered judgment for town, and, following a hearing, granted town’s motion for attorney fees. Regional water authority appealed attorney fee award.

The Supreme Court held that:

The Uniform Declaratory Judgment Act (UDJA) provides a legal basis for attorney fees between two governmental subdivisions when appropriate.

Equities and tangible parameters supported award of attorney fees to town under the Uniform Declaratory Judgment Act (UDJA) in its action against regional water authority seeking a declaration that it was not a member of the authority, even if water authority did not act in bad faith; town, which had approximately 175 residents, paid over $55,000 in legal fees, while water authority could spread out its costs over a much larger base and had access to grant funding from the state for much of the litigation, water authority possessed what the town needed and it was necessary to seek a declaration to get the relief and change the status quo, and town offered to settle the case numerous times and the water authority never seriously entertained the possibility of settlement but forced it to trial because it did not want to set a precedent for other members to withdraw.




MUNICIPAL CORPORATIONS - TEXAS

Rhone v. City of Texas City, Texas

United States Court of Appeals, Fifth Circuit - August 6, 2024 - F.4th - 2024 WL 3664535

Owner of three apartment buildings in city brought appeal, in state district court, from order of nuisance abatement issued by a Municipal Court of Record, asserting claims under § 1983 for inverse condemnation, denial of procedural due process, and unconstitutional seizure, and seeking declaratory judgment.

After removal by city, the United States District Court for the Southern District of Texas granted summary judgment to city on due process claim, and later granted summary judgment to city on remaining claims. Owner appealed and filed motion to restrain and enjoin damage to or demotion of buildings. The Court of Appeals denied the motion without prejudice, and buildings were demolished by city during pendency of appeal. The Court of Appeals ordered limited remand. On remand, the District Court conducted evidentiary hearing on city attorney’s role in finalizing the Municipal Court’s order of abatement and the effect of his role on the validity of that order.

The Court of Appeals held that city attorney’s typed signature under phrase “approved as to form, substance, and entry” was formulaic way of explaining city attorney’s acceptance of order.

Language in Texas municipal court’s nuisance abatement order with city attorney’s typed signature under phrase “approved as to form, substance, and entry” was formulaic way of explaining city attorney’s acceptance of order, and the city attorney’s and municipal judge’s actions were therefore appropriate in apartment building owner’s suit challenging abatement order; municipal judge did not need city attorney’s approval before entering the order.




PUBLIC EMPLOYMENT - VIRGINIA

Williams v. Rappahannock County Board of Supervisors

Court of Appeals of Virginia, Arlington - August 6, 2024 - S.E.2d - 2024 WL 3657071

Removed officers and directors of volunteer fire company filed complaint against county board of supervisors, board members, and company for declaratory judgment, injunctive relief, and judicial review of election of directors, alleging board’s removal of plaintiffs violated company’s certificate of incorporation, bylaws, and the Code of Virginia.

The Circuit Court granted defendants’ pleas in bar. Plaintiffs appealed.

The Court of Appeals held that statute mandating that fire chief and other officers be appointed in counties in which fire company was established did not authorize board to remove company’s officers and directors.

Assuming that statute mandating that a fire chief and other officers be appointed in counties in which a fire company was established applied to volunteer fire company incorporated as a nonstock corporation, the statute did not authorize county’s board of supervisors to remove company’s officers and directors, supporting removed officers and directors’ claims against county board of supervisors, company, and others for declaratory judgment, injunctive relief, and judicial review challenging board’s resolution removing plaintiffs and appointing new officer and directors; statute only used the word “appointed” rather than “appointed and removed.”




NEGLIGENCE - VIRGINIA

Marlowe v. Southwest Virginia Regional Jail Authority

Court of Appeals of Virginia, Christiansburg - July 30, 2024 - S.E.2d - 2024 WL 3571803

Pre-trial detainee who was injured during transport to regional jail after being processed brought action against regional jail employee who drove transport van, alleging gross negligence.

The Wise Circuit Court sustained employee’s demurrer, but denied employee’s plea in bar asserting that prisoner’s claims were barred by the statute of limitations. Parties cross-appealed.

The Court of Appeals held that:

Deadline for pre-trial detainee’s two-year claim for personal injury was tolled pursuant to COVID-19 judicial emergency orders that applied to all case-related deadlines for 126-day period.

Status as pre-trial detainee was immaterial to determination of applicability of one-year statute of limitations period that applied to claims concerning conditions of confinement, in detainee’s action alleging gross negligence in connection with conditions of confinement regarding manner in which detainee was restrained and transported from processing facility to regional jail.

Pre-trial detainee was confined in a local correction facility when detainee’s claim against regional jail employee who drove transport van accrued, alleging gross negligence in connection with conditions of confinement regarding manner in which detainee was restrained and transported from processing facility to regional jail in van owned by regional jail, and thus one-year statute of limitations for conditions of confinement claims applied to detainee’s gross negligence claim.




PUBLIC UTILITIES - CALIFORNIA

Coziahr v. Otay Water District

Court of Appeal, Fourth District, Division 1, California - July 15, 2024 - Cal.Rptr.3d - 2024 WL 3408627

Resident brought class action against water district, alleging that the district imposed tiered water rates on single family residential customers which were not proportional to the cost of the service in violation of Proposition 218.

Superior Court, San Diego County, entered judgment against district as to liability, and, following remedy phase, awarded $18 million refund, with monthly increases until water district imposed rates consistent with Proposition 218. Water district and resident both appealed, and appeals were consolidated.

The Court of Appeal held that:




PUBLIC EMPLOYMENT - CALIFORNIA

Bailey v. San Francisco District Attorney's Office

Supreme Court of California - July 29, 2024 - P.3d - 2024 WL 3561569

Black former employee brought action against district attorney’s office, former district attorney, city, and county, alleging racial discrimination, racial harassment, retaliation, and failure to prevent discrimination in violation of Fair Employment and Housing Act (FEHA).

The Superior Court, San Francisco County, granted summary judgment in favor of city. Employee appealed. The First District Court of Appeal affirmed and the Supreme Court granted review.

The Supreme Court held that:




EMINENT DOMAIN - FEDERAL

McDonough Family Land, LP v. United States

United States Court of Federal Claims - July 12, 2024 - Fed.Cl. - 2024 WL 3405353

Ranches brought action seeking compensation for an alleged Fifth Amendment takings of their properties that occurred when the United States Forest Service directed ignition of backfires and burnouts on their land in an effort to stop the further spread of wildfire.

The United States filed a motion for summary judgment.

The Court of Federal Claims held that:




PUBLIC UTILITIES - FEDERAL

Entergy Arkansas, LLC v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit - July 26, 2024 - F.4th - 2024 WL 3546765

Companies that generated, transmitted, distributed, and sold electricity filed petitions for review, under Administrative Procedure Act (APA), of decisions of Federal Energy Regulatory Commission (FERC) approving electrical grid operator’s proposed tariff changes, including switch from annual to seasonal capacity markets, change in method for calculating generator capacity, and change in rules regarding generator outages, as well as denying companies’ request for rehearing.

Petitions were consolidated. Public utilities commissions in Mississippi, Louisiana, and Arkansas and nonprofit corporation that operated electrical grid in eastern Texas intervened in support of companies.

The Court of Appeals held that:

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, including new accreditation methodology under which 80% weight would be given to the 65 hours in each of the past three years in which electrical supply was tightest, Federal Energy Regulatory Commission (FERC) reasonably concluded that operator’s new methodology would more accurately predict resources’ future performance during periods of highest demand in general; FERC relied on operator’s study, which examined 11 emergency days from past year and concluded that old methodology overestimated how much electricity would be offered into market by roughly 8% to 22%, whereas new methodology’s estimates were off by only about 1%.

Energy companies failed to exhaust their arguments, on their petition for review of Federal Energy Regulatory Commission (FERC) decision approving electrical grid operator’s proposed tariff changes to switch from annual to seasonal capacity markets and to change accreditation methodology for generator capacity, that study which FERC relied upon to determine that new accreditation methodology would be more accurate than existing methodology had too small sample size and did not convert intermediate seasonal capacity figures into final seasonal capacity figures, and thus, Court of Appeals lacked jurisdiction to consider arguments; companies did not discuss study at all when requesting rehearing of FERC’s approval of rule changes.

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, including new accreditation methodology under which 80% weight would be given to the 65 hours in each of the past three years in which electrical supply was tightest, Federal Energy Regulatory Commission (FERC) adequately explained its conclusion that new methodology more accurately predicted individual resources’ future performance; FERC explained that new methodology addressed all reasons for unavailability, whereas old methodology only reflected forced outage rates, year-to-year variation in an individual resource’s accreditation was warranted based on whether resource had under- or over-delivered in past, and new method considered three years of prior performance.

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, including new accreditation methodology, Federal Energy Regulatory Commission (FERC) reasonably explained that it expected volatility to be low; FERC relied on operator’s study, which used standard deviation for each market participant as measure of how much volatility each participant would have experienced over four planning years had new methodology been in use, and found standard deviation of less than 2% systemwide, with 75% of market participants having standard deviation of under 7.6%, and FERC reasonably chose to focus on across-the-board volatility rather than worst-case scenario of single participant with largest standard deviation after outliers were excluded.

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, including new accreditation methodology, Federal Energy Regulatory Commission (FERC) reasonably concluded that any volatility under new methodology was unlikely to unduly impact market participants; FERC found that, even when volatility existed at resource-specific level, volatility would usually be lower at market-participant level given participants’ broad portfolios of resources, that using three-year rolling average as basis for methodology minimized impact of chance, that resource owners could rely on past performance data to estimate future capacity accreditations, and that electricity distributors could purchase additional capacity to make up any shortfalls.

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, Federal Energy Regulatory Commission (FERC) adequately explained its approval of rule that resources that are offline for over 31 days in a three-month season must either acquire replacement capacity or pay penalty; 31-day threshold weighed competing interests of allowing generators to go offline to perform maintenance versus ensuring grid reliability within a season and ensuring that resources would fulfill commitments for which distributors had paid them, and owners of resources requiring extended maintenance could opt out of capacity market for a season, shorten maintenance, acquire replacement capacity, or schedule maintenance to straddle two seasons.

Energy companies adequately exhausted their argument that Federal Energy Regulatory Commission (FERC) failed to explain why electrical grid operator’s proposed rule requiring owners of resources that went offline for more than 31 days in a three-month season to either purchase replacement capacity or pay penalty would not unduly burden resources that required extended maintenance longer than 31 days, as necessary for Court of Appeals to have jurisdiction to consider such argument on companies’ petition for review for FERC’s approval of rule and denial of rehearing; companies argued before FERC that its approval was irrational because duration of planned outages for nuclear units was commonly longer than 31 days and that 31-day threshold could impede maintenance of other generating units.

In approving tariff changes proposed by electrical grid operator to switch from annual to seasonal capacity market, Federal Energy Regulatory Commission (FERC) adequately explained its approval of rule requiring resource owners to give operator 120 days’ notice of planned outages; FERC explained that requiring advance notice did not only ensure grid reliability, but also allowed operator and other stakeholders to plan for outages in advance, and 120-day notice period ensured that operator would have information it needed prior to start of three-month season in order to identify and mitigate potential reliability issues.




ZONING & PLANNING - KANSAS

American Warrior, Inc. v. Board of County Commissioners of Finney County, Kansas

Supreme Court of Kansas - July 26, 2024 - P.3d - 2024 WL 3544081

Landowner and owner of oil and gas lease brought action against board of county commissioners and operator of sand and gravel quarry, challenging validity of conditional use permit that county board of zoning appeals issued for quarry.

The District Court granted defendants’ motion for summary judgment and denied plaintiffs’ motion for summary judgment. Plaintiffs appealed. The Court of Appeals reversed and remanded. Defendants sought review, which was granted.

The Supreme Court held that:

Issue of validity of conditional use permit that county board of zoning appeals issued for operation of sand and gravel quarry was not mooted by the lack of a yearly reapplication for permit, where county zoning regulation provided that the permit was valid for at least one year, which could extend beyond that year if the project was substantially completed, and neither side raised a substantial completion issue.

County’s procedures for issuing conditional use permits, under which county zoning board was delegated issuing power and two of three board members needed to agree when deciding in favor of a permit applicant, did not conflict with statute requiring county to follow statutory procedure when changing zoning regulations by amendment, and thus the statute did not preempt county’s procedures and a conditional use permit for operating a sand and quarry, obtained via county’s procedures, was valid, where application for the quarry permit did not ask county to supplement, change, or revise county’s zoning regulations but rather merely sought to use property that was zoned as agricultural for a quarry operation based on existing county regulations.

County’s procedures for issuing conditional use permits, under which county zoning board was delegated issuing power and two of three board members needed to agree when deciding in favor of a permit applicant, did not conflict with statute specifying process to appeal a zoning officer’s decision to a specific zoning appellate board, and thus statute did not preempt county’s procedures and a conditional use permit for operating a sand and quarry, obtained via county’s procedures, was valid, where county zoning board and not some individual officer through administrative action granted the permit, and county regulations complied with other portions of the statute, which specifically contemplated zoning board authority and special uses.




IMMUNITY - MINNESOTA

Berrier v. Minnesota State Patrol

Supreme Court of Minnesota - July 17, 2024 - N.W.3d - 2024 WL 3434557

Car dealership employee brought action against State Patrol under the strict liability dog-bite statute arising from an unprovoked attack on employee by a State Patrol canine when a patrol vehicle was in for service at dealership.

The District Court denied State Patrol’s motion to dismiss. State Patrol appealed. The Court of Appeals reversed and remanded. Employee petitioned for review, which was granted.

The Supreme Court held that dog-bite statute waived sovereign immunity for claims brought under the statute.

Strict liability dog-bite statute plainly, clearly, and unmistakably waived sovereign immunity for claims brought under the statute, and thus the State Patrol was not immune from car dealership employee’s claim arising from an unprovoked attack on employee by a State Patrol canine when a patrol vehicle was in for service at dealership, where statute provided that the “owner of the dog” was liable in damages to an injured person, the phrase “owner of the dog” bound a party based on their relationship to the thing that was owned and not based on the party’s form of entity, statute contained no language otherwise suggesting that its application was limited to non-State entities, statute served public policy interests that favored imposing liability on public bodies, and State was not exposed to broad liability under statute.




REFERENDA - NEBRASKA

City of Hastings v. Sheets

Supreme Court of Nebraska - July 12, 2024 - 317 Neb. 88 - 8 N.W.3d 771

City brought action against referendum petitioners under the Municipal Initiative and Referendum Act, seeking a declaration that city was not required to hold a special referendum election to put its decision to demolish viaduct before the voters, and petitioners counterclaimed seeking the opposite declaration.

After a stipulated trial, the District Court sustained city’s request for a declaratory judgment. Petitioners appealed and filed a petition to bypass, which was granted.

The Supreme Court held that:

Public interest exception to mootness doctrine did not apply to allow appellate review of moot declaratory judgment case involving a dispute as to city’s need to hold a special referendum election concerning its decision to demolish viaduct that was demolished during pendency of action, where the particular set of facts concerning initiative and referendum petitions were often greatly dissimilar, the specific circumstances of the case created a difficult, if not troublesome, situation to provide an authoritative adjudication to guide public officials in the future, and same or similar problems presented by the appeal were not likely to recur.




OPEN MEETINGS - OHIO

Look Ahead America v. Stark County Board of Elections

Supreme Court of Ohio - July 18, 2024 - N.E.3d - 2024 WL 3447280 - 2024-Ohio-2691

Political advocacy group filed complaint against county board of elections and its individual members alleging that board violated Open Meetings Act by entering executive sessions at four meetings to discuss purchase of voting equipment.

Following advocacy group’s case-in-chief at bench trial, the Court of Common Pleas dismissed the case. Advocacy group appealed. The Fifth District Court of Appeals affirmed. The Supreme Court accepted advocacy group’s discretionary appeal.

The Supreme Court held that premature-disclosure clause of statute governing executive sessions of a public body applied to all permissible reasons for entering executive session, and, thus, remand was necessary for trial court to apply that interpretation.

Premature-disclosure clause of statute governing executive sessions of a public body applied to all permissible reasons for entering executive session, including purchase of property for public purpose, and, thus, remand was necessary for trial court to apply that interpretation of the statute, following dismissal of political advocacy group’s action alleging that county board of elections’ executive sessions violated the Open Meetings Act.




NUISANCE - SOUTH DAKOTA

Preserve French Creek, Inc. v. County of Custer

Supreme Court of South Dakota - July 24, 2024 - N.W.3d - 2024 WL 3532519 - 2024 S.D. 45

Creek preservation group petitioned for writ of mandamus to compel enforcement of county ordinance that was passed by citizen initiative and that declared city’s discharge of treated wastewater into creek, pursuant to a state surface water discharge permit obtained from Department of Agriculture and Natural Resources (DANR), to be a nuisance.

The Circuit Court denied relief. Preservation group appealed.

The Supreme Court held that:

County ordinance declaring that city’s discharge of treated wastewater into creek was a nuisance conflicted with statute providing that nothing that was done or maintained under the express authority of the state could be deemed a nuisance, and thus the ordinance was preempted and unenforceable, where city’s wastewater treatment facility was operating under a permit issued by the Department of Agriculture and Natural Resources (DANR) in compliance with state law including provisions of the Water Pollution Control Act.




INDUSTRIAL DEVELOPMENT CORPORATIONS - TEXAS

Hitchcock Industrial Development Corporation v. Cressman Tubular Products Corporation

Court of Appeals of Texas, Houston (14th Dist.) - July 18, 2024 - S.W.3d - 2024 WL 3447475

City brought action against pipe supply company for breach of economic development agreement, unjust enrichment, and fraud. Company filed third-party claims against industrial development corporation for breach of development agreement, negligent misrepresentation, and fraud.

The 405th District Court denied corporation’s plea to the jurisdiction. Corporation appealed.

The Court of Appeals held that:

Court of Appeals had jurisdiction over industrial development corporation’s appeal of trial court’s order denying its plea to the jurisdiction with regard to pipe supply company’s claims against corporation for negligent misrepresentation and fraud based on governmental immunity, under statute permitting interlocutory appeal of a decision granting or denying a plea to the jurisdiction by a governmental unit; corporation was a Type A economic development corporation, which was a governmental unit pursuant to Tort Claims Act.

Industrial development corporation was not entitled to governmental immunity, and thus pipe supply company’s claims against corporation for negligent misrepresentation and fraud were not barred on such basis; although Development Corporation Act, under which industrial development corporation was formed as a Type A economic development corporation, stated that a Type A corporation was a governmental unit and its actions were governmental functions, that provision did not purport to confer immunity, but only imported the Tort Claims Act’s limitations on liability and damages.




CONDEMNATION - NORTH CAROLINA

Askew v. City of Kinston

Supreme Court of North Carolina - June 28, 2024 - 902 S.E.2d 722

African American property owners brought action against city alleging that city’s racially discriminatory and arbitrary decisions in condemning their individual properties violated the equal protection and due process guarantees of North Carolina’s Constitution.

The Superior Court granted summary judgment to city. Owners appealed. The Court of Appeals vacated and remanded. City appealed.

The Supreme Court held that:

On appeal of trial court’s grant of summary judgment to city on African American property owners’ claims alleging city’s property condemnation process was racially discriminatory in violation of equal protection and due process guarantees of State Constitution, Court of Appeals improperly merged owners’ claims and overlooked the case-by-case inquiry that was required for discrete claims under Corum doctrine, 413 S.E.2d 276, replacing it with a blanket jurisdictional mandate, thus requiring remand; Court of Appeals addressed substantive due process claim and determined that proper relief could be provided by an injunction, but it sidestepped the equal protection challenge for which owners asserted a different injury and which required a different species of relief, a mandate of equal treatment.

On appeal of trial court’s grant of summary judgment to city on African American property owners’ claims alleging city’s property condemnation process was racially discriminatory in violation of equal protection and due process guarantees of State Constitution, Court of Appeals improperly tied administrative exhaustion to subject-matter jurisdiction over Corum suits, 413 S.E.2d 276, transplanting the rules for run-of-the-mill agency disputes into Corum’s unique framework that required evaluation of adequacy of relief, thus requiring remand; Court of Appeals vacated trial court’s ruling on jurisdictional grounds by assuming that, without evaluating the administrative scheme and its congruence with owners’ discrete Corum claims, that unjustified condemnation of owners’ properties could be reviewed and redressed by administrative process.




MANDAMUS - OHIO

State ex rel. Black v. East Cleveland

Supreme Court of Ohio - July 17, 2024 - N.E.3d - 2024 WL 3432409 - 2024-Ohio-2688

Relator brought action against city, seeking writ of mandamus compelling city to pay $20 million in compensatory damages and $5.2 million in prejudgment interest awarded in relator’s prior action against city alleging improper arrest and injuries inflicted by police officers.

The Supreme Court held that relator was entitled to mandamus relief compelling payment of damages and interest.

Relator’s evidence was sufficient to establish exact amount of money that city owed to him, i.e., $20 million in compensatory damages and $5.2 million in prejudgment interest awarded in relator’s action against city arising from improper arrest of relator and injuries inflicted by police officers, thus supporting relator’s clear legal right to relief in his subsequent mandamus action against city; relator submitted jury’s verdict and amount of compensatory damages to be awarded, trial court’s judgment entering the verdict in relator’s favor and ordering city to pay relator the damages awarded, trial court’s order awarding relator prejudgment interest, and court of appeals’ judgment affirming jury’s verdict and monetary awards.




ZONING & PLANNING - PENNSYLVANIA

AUUE, Inc. v. Borough of Jefferson Hills Zoning Hearing Board

Supreme Court of Pennsylvania - July 17, 2024 - A.3d - 2024 WL 3432626

Landowner appealed decision of the borough zoning hearing board which reversed zoning officer’s grant of use permit for five parcels on which landowner sought to construct medical center.

The Court of Common Pleas affirmed, and landowner appealed. The Commonwealth Court reversed, and neighbors appealed, which the Supreme Court allowed.

The Supreme Court held that:

Borough zoning officer had authority under zoning ordinances to issue use permit to landowner for medical center; zoning ordinances granted the zoning officer the broad and expansive authority to issue zoning permits for any purpose, however limited, provided that such purpose conformed to the requirements of the ordinance, zoning officer issued the zoning permit for the sole and limited purpose of establishing that landowner’s desired/intended use for the property was permitted by right in the district, and letter granting the zoning permit specifically stated that landowner still needed to secure land development approval.

Borough zoning hearing board, on appeal of zoning officer’s grant of use permit to landowner which sought to construct medical center on its property, was required to limit its review to whether landowner’s desired/intended use for the property was permitted by right in the district; given the limited purpose for which the zoning officer issued the permit, and the fact that the zoning officer was authorized to issue the permit, the question of overall compliance with the zoning ordinance was not before the board, and the board was not permitted to overturn the permit decision simply because the zoning application may have failed to comply with all relevant provisions of the zoning ordinance.




BONDS - PUERTO RICO

In re Puerto Rico Public Finance Corporation

United States Court of Appeals, First Circuit - July 17, 2024 - F.4th - 2024 WL 3439970

Financial Oversight and Management Board for Puerto Rico, as Administrative Supervisor for the Puerto Rico Public Finance Corporation (PFC), applied for approval of “qualifying modification” to restructure PFC’s debts pursuant to Title VI of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

After court approval of stipulation that bifurcated consideration of Board’s application from parties’ dispute concerning whether the Government Development Bank for Puerto Rico (GDB), which had issued standby letters of credit to bondholders of its subsidiary, PFC, and GDB’s parent entity, the Puerto Rico Fiscal Agency and Financial Advisory Authority (AAFAF), had the right to direct the GDB Debt Recovery Authority (DRA) to issue bonds, several parties filed briefs in support of or in opposition to the proposed bond issuance, including DRA’s servicing agent and collateral monitor, which objected to it.

Construing the parties’ filings as cross-motions for summary judgment, the United States District Court for the District of Puerto Rico approved the qualifying modification, and subsequently overruled the objection to the new bond issuance. Objectors appealed.

The Court of Appeals held that under New York and Puerto Rico law, respectively, the bond indenture and the master transfer agreement, as the final transaction documents governing DRA’s issuance of new bonds on GDB’s outstanding bond claims, including its debt to PFC’s bondholders, plainly permitted issuance of the bonds without any reference to a valid claim requirement.

“Qualifying modification” to restructure debts of the Government Development Bank for Puerto Rico (GDB) pursuant to Title VI of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) did not contain a valid claim requirement, that is, a requirement that, before GDB’s Debt Recovery Authority (DRA) would issue new bonds, including to creditors of the Puerto Rico Public Finance Corporation’s (PFC), a subsidiary of GDB whose bonds GDB had guaranteed, such creditors first had to demonstrate “valid claims”; under New York and Puerto Rico law, respectively, bond indenture and master transfer agreement, the final transaction documents governing DRA’s issuance of bonds, only limited the maximum amount of bond issuance and included no valid claim requirement, and although preliminary documents did contain such requirement, those documents made clear that they were provisional, and the final documents stated that they replaced any earlier agreements.

Where, under New York and Puerto Rico law, respectively, neither bond indenture nor master transfer agreement, as final transaction documents governing issuance of bonds by the Government Development Bank for Puerto Rico’s (GDB) Debt Recovery Authority (DRA) as part of GDB’s debt restructuring under Title VI of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), was ambiguous, the District Court properly declined to permit discovery into the negotiation process, on cross-motions for summary judgment by parties supporting or opposing proposed bond issuance.




ESTOPPEL - SOUTH CAROLINA

Cruz v. City of Columbia

Supreme Court of South Carolina - July 17, 2024 - S.E.2d - 2024 WL 3435968

City retirees under age 65 brought action against city asserting claims including promissory and equitable estoppel regarding city’s alleged promise to provide them no-cost health insurance for their lifetimes. Retirees over age 65 also filed suit against city, alleging similar claims.

Cases were consolidated. Following a bench trial, the Circuit Court entered judgment for city. Retirees appealed, and the Court of Appeals affirmed. The Supreme Court granted retiree’s petition for certiorari.

The Supreme Court held that:

Retirees had no right to rely on promises made by their supervisors and city’s human resources employees that the city would provide its retirees with free lifetime health insurance; city employees had no authority to bind the city to matters dealing with future health insurance benefits, and the exclusive authority to make health insurance benefits available to retirees rested with the city council which also had the authority to change the current policy.

Except in a case seeking specific performance of a land transfer, a promissory estoppel claim need only be proven by the greater weight of the evidence; abrogating Barnes v. Johnson, 402 S.C. 458, 470, 742 S.E.2d 6.




REFERENDA - UTAH

League of Women Voters of Utah v. Utah State Legislature

Supreme Court of Utah - July 11, 2024 - P.3d - 2024 WL 3367145 - 2024 UT 21

Nonprofit nonpartisan voter advocacy group brought suit against the Utah State Legislature and other state entities and officers, alleging inter alia that the Legislature violated the Utah Constitution when it repealed and replaced initiative enacted by voters aimed at ending partisan gerrymandering and its resulting map of Congressional districts, and that the Legislature’s replacement map was likewise unconstitutional.

The Third District Court, Salt Lake County granted defendants’ motion to dismiss the claim regarding the initiative’s repeal and replacement, and denied defendants’ motion to dismiss the claims regarding the replacement map.

The Supreme Court granted the parties’ cross-petitions for interlocutory appeal.

The Supreme Court held that:




POLITICAL SUBDIVISIONS - WASHINGTON

Horvath v. DBIA Services

Court of Appeals of Washington, Division 1 - July 8, 2024 - P.3d - 2024 WL 3325346

Public records requestor brought action against nonprofit corporation which provided services within city’s business improvement district, alleging that corporation had failed to comply with the Public Records Act.

The Superior Court denied requestor’s motion for summary judgment and granted corporation’s motion for summary judgment and for declaratory judgment, concluding that corporation was not the functional equivalent of a governmental entity subject to the Public Records Act. Requestor appealed.

The Court of Appeals held that:




PUBLIC UTILITIES - CALIFORNIA

Golden State Water Company v. Public Utilities Commission

Supreme Court of California - July 8, 2024 - P.3d - 2024 WL 3321648

Class A water utilities and an association that represented investor-owned water utilities’ interests petitioned for writs of review to have set aside the Public Utilities Commission’s order 2020 WL 5407872, as modified by 2021 WL 4627678, that, among other things, did away with a water-conservation mechanism allowed certain water companies to structure their rates in a way that decoupled revenue from the amount of water sold.

After issuing the writs of review, the Supreme Court consolidated the cases.

The Supreme Court held that:

Enactment of new legislation concerning conservation-related decoupling mechanisms did not render moot petitions for review that were filed by Class A water utilities and an association representing investor-owned water utilities’ interests and that sought the setting aside of Public Utilities Commission’s order that did away with a water-conservation mechanism allowed certain water companies to structure their rates in a way that decoupled revenue from the amount of water sold; new legislation referred only to consideration of a mechanism for decoupling revenue from sales, and the statute’s requirement that the Commission consider authorizing such a mechanism was not necessarily equivalent to what the petitioners were asking for.

Public Utilities Commission did not give adequate notice that it would consider elimination of a water-conservation mechanism allowed certain water companies to structure their rates in a way that decoupled revenue from the amount of water sold, as would warrant setting aside Commission’s order eliminating the mechanism; the scoping memos covered a forecasting issue that did not fairly include the possibility that the Commission would order petitioners not to propose continuing existing water-conservation mechanisms.

Class A water utilities and an association that represented investor-owned water utilities’ interests were prejudiced by failure of Public Utilities Commission’s scoping memos to cover the possible elimination of a water-conservation mechanism allowed certain water companies to structure their rates in a way that decoupled revenue from the amount of water sold, as would warrant, assuming that a showing of prejudice was even required, setting aside Commission’s order eliminating the mechanism; the lack of notice of the possible elimination of the mechanism deprived petitioners of an adequate opportunity to present their case for preserving the mechanism.




PUBLIC UTILITIES - FEDERAL

Shell Energy North America (US), L.P. v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit - July 9, 2024 - F.4th - 2024 WL 3335557

Sellers of wholesale electricity, California Public Utilities Commission (CPUC), and investor-owned utility petitioned for review of orders of Federal Energy Regulatory Commission (FERC), 2022 WL 1058002, 2022 WL 5243242, 2022 WL 1154871, 2022 WL 5243289, 2022 WL 1208000, 2022 WL 4397219, 2022 WL 1208033, 2022 WL 5243177, 2022 WL 1208013, 2022 WL 5243180, 2022 WL 1208004, 2022 WL 4397324, 2022 WL 1208037, 2022 WL 4397517, 2022 WL 1601920, 2022 WL 12179536, 2022 WL 1601924, 2022 WL 12186014, 2022 WL 1601918, 2022 WL 12193846, 2022 WL 2188379, 2022 WL 17077042, 2022 WL 2188380, 2022 WL 17077046, 2022 WL 2191889, and 2022 WL 17077044, determining that sellers failed to justify their short-term electricity sales above soft price cap in western United States during summer heat wave and requiring partial refunds of sale prices that exceeded cap.

The Court of Appeals held that:

Federal Energy Regulatory Commission’s (FERC) final order, determining that sellers failed to justify their short-term electricity sales above soft price cap and requiring partial refunds of sale prices that exceeded cap, violated Mobile-Sierra doctrine, United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 76 S.Ct. 373; Federal Power Comm’n v. Sierra Pac. Power Co., 76 S.Ct. 368, guiding FERC’s just-and-reasonable review of market-based-tariff contracts under FPA; FERC ordered refunds for rates that were mutually contracted by sellers and customers in competitive marketplace, yet FERC altered those negotiated rates by ordering refunds without first finding that rates seriously harmed public interest or that Mobile-Sierra framework did not apply. Federal Power Act § 205, 16 U.S.C.A. § 824d(a).

Under the Mobile-Sierra doctrine, United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 76 S.Ct. 373; Federal Power Comm’n v. Sierra Pac. Power Co., 76 S.Ct. 368, Federal Energy Regulatory Commission (FERC) can rebut the presumption that the electricity rate set out in a freely negotiated wholesale-energy contract meets the just and reasonable requirement, imposed by the FPA, only by making a particularized finding that a given contract seriously harms the public interest, even if that contract’s price exceeds the soft price cap, or can avoid that inquiry by demonstrating that the presumption should not apply at all. Federal Power Act § 205, 16 U.S.C.A. § 824d(a).

California Public Utilities Commission’s (CPUC) and investor-owned utility’s challenge to Federal Energy Regulatory Commission’s (FERC) order, which allegedly would lead to higher future electricity prices by purportedly erroneously calculating refunds required from sellers that failed to justify their short-term electricity sales above soft price cap, was rendered moot by determination that FERC’s refund orders failed to satisfy preconditions, in violation of Mobile-Sierra doctrine, United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 76 S.Ct. 373; Federal Power Comm’n v. Sierra Pac. Power Co., 76 S.Ct. 368, since any judicial pronouncement about correctness of calculated refunds would not presently affect parties’ rights or have more-than-speculative chance of affecting them in future.

 




EMINENT DOMAIN - INDIANA

Indiana Land Trust #3082 v. Hammond Redevelopment Commission

United States Court of Appeals, Seventh Circuit - July 10, 2024 - F.4th - 2024 WL 3353836

Owner of property subject to condemnation proceeding filed state-court action against city, city redevelopment commission that had commenced condemnation proceeding, and city’s mayor, asserting federal constitutional violations relating to alleged conspiracy regarding the eminent domain proceeding, including § 1983 claim alleging violation of equal protection and Monell claim.

Following removal, the United States District Court for the Northern District of Indiana denied property owner’s request for leave to amend complaint to add claims for violations of substantive due process and civil conspiracy under § 1983 and granted city’s motion to dismiss the remaining claims. Property owner appealed.

The Court of Appeals held that:




EMINENT DOMAIN - LOUISIANA

Watson Memorial Spiritual Temple of Christ v. Korban

Supreme Court of Louisiana - June 28, 2024 - So.3d - 2024 WL 3218549 - 2024-00055 (La. 6/28/24)

Landowners filed petition for writs of mandamus and fieri facias against executive director of city’s sewerage and water board, in his official capacity, seeking to compel the payment of damages that had been awarded to landowners in their prior inverse-condemnation actions against board but for which board had not allocated funds.

The District Court denied executive director’s exception of res judicata, declining to give preclusive effect to a decision of the United States District Court for the Eastern District of Louisiana, as affirmed by the United States Court of Appeals for the Fifth Circuit, dismissing landowners’ § 1983 action against board and its executive director seeking to collect their judgment, but the District Court granted executive director’s exception of no cause of action. On landowners’ appeal, the Fourth Circuit Court of Appeal reversed and remanded. Executive director petitioned for a writ of certiorari.

The Supreme Court held that:




REFERENDUM PETITION - MARYLAND

Town of Bel Air v. Bodt

Supreme Court of Maryland - July 9, 2024 - A.3d - 2024 WL 3336797

Town residents brought action against town seeking declaratory relief, a writ of mandamus, and permanent injunctive relief after town commissioners refused to submit a purported referendum petition concerning a zoning ordinance to town board of election judges due to the petition’s non-compliance with town charter.

Town and intervenor moved for summary judgment. The Circuit Court entered orders declaring the rights of the parties, directing town to take action, and partially granting injunctive and mandamus relief. Town and intervenor appealed, residents cross-appealed, and town petitioned for writ of certiorari, which was granted.

The Supreme Court held that:

Whether town commissioners correctly determined that a purported referendum petition concerning a zoning ordinance did not comply with town charter, and whether commissioners were authorized to make such a determination by verbal motion at commissioners’ meeting, were legal questions that the Supreme Court would consider de novo and without any deference to the trial court’s conclusions, following the entry of a declaratory judgment on the basis of a motion for summary judgment.

Town commissioners had authority under town charter to make a preliminary determination as to facial validity of purported referendum petition concerning a zoning ordinance without first sending petition to town election board for verification of signatures, where text of charter did not contain any words that required a particular order or sequence when determining whether a petition satisfied the signature requirement, to be determined by board, and the general facial or textual requirement, to be determined by commissioners.

Purported referendum petition submitted to town following a comprehensive rezoning did not satisfy requirements of town charter for being a referendum petition, where information provided on signature pages of petition called for the reversal of a zoning decision without identifying the mechanism for reversal with words like “petition,” “referendum,” or “vote,” and cover page that was affixed to petition as part of a refiling contained language seeking a referendum only on part of a zoning ordinance, which was impermissible.

Town commissioners were permitted under town charter to determine validity of a purported referendum petition concerning zoning ordinance by a verbal motion at a regular commissioners’ meeting that was memorialized in the minutes of the meeting, where charter did not require commissioners to consider validity of a referendum petition in a particular manner, charter authorized commissioners to adopt both ordinances and resolutions, and commissioners’ determination of validity of a referendum petition did not fall within any of the categories of government action that required an ordinance under the charter.

Verbal motion at a regular town commissioners’ meeting was the equivalent of a “resolution” by which the commissioners had authority under town charter to determine validity of a purported referendum petition concerning zoning ordinance; motion constituted a formal expression of commissioners’ opinion that was adopted by vote and memorialized in the minutes of the proceeding.




PUBLIC FINANCE - NORTH DAKOTA

East Central Water District v. City of Grand Forks

Supreme Court of North Dakota - July 5, 2024 - N.W.3d - 2024 WL 3308359 - 2024 ND 135

Water district brought federal action against city seeking, in part, a declaration that a water supply and service agreement with city was void ab initio due to absence of a public lending authority as a party to agreement.

The United States District Court for the District of North Dakota certified questions.

The Supreme Court held that:

Supreme Court would exercise its discretion and answer certified questions from federal court as to whether the failure to include the public lending authority that finances the construction of acquisition of an improvement in a service agreement between political subdivisions makes the agreement void or voidable pursuant to state statute governing protection of service during term of a loan, where interpretation of statute was a matter of first impression, and resolution of the questions of law could have been determinative of the matter, which involved a water supply and service agreement between city and water district.

Statutory language “invalid and unenforceable,” in statute providing that the failure to include the public lending authority that finances the construction or acquisition of an improvement for a service as a party to an agreement between political subdivisions for the provision of the service makes the agreement invalid and unenforceable, means void ab initio, not voidable and capable of ratification.




IMMUNITY - TEXAS

Hensley v. State Commission on Judicial Conduct

Supreme Court of Texas - June 28, 2024 - S.W.3d - 2024 WL 3210043 - 67 Tex. Sup. Ct. J. 1369

Justice of the peace brought suit against State Commission on Judicial Conduct and Commission officials, alleging that Commission’s investigation and sanction of her for refusing to perform same-sex weddings was an ultra vires act which violated the Texas Religious Freedom Restoration Act (TRFRA) and the right to freedom of speech under the Texas Constitution.

The 459th District Court, Travis County, granted Commission’s and officials’ plea to the jurisdiction and dismissed the case. Justice petitioned for review, which was granted, and the Austin Court of Appeals affirmed. The Supreme Court granted justice’s petition for review.

The Supreme Court held that:




ZONING & PLANNING - VIRGINIA

Board of Supervisors of Fairfax County v. Leach-Lewis , Trustee of Rita M. Leach-Lewis Trust 18MAR13

Supreme Court of Virginia - June 20, 2024 - 902 S.E.2d 57

Trustee for trust homeowner church organization filed petition for a writ of certiorari challenging the decision of the Board of Zoning Appeals which concluded that home in residential conservation district was being used as an “office” in violation of a zoning ordinance.

The Fairfax Circuit Court upheld the decision. Trustee appealed, and the Court of Appeals reversed with instructions to remand. The Supreme Court granted the county board of supervisors an appeal.

The Supreme Court held that:




IMMUNITY - VIRGINIA

Page v. Portsmouth Redevelopment and Housing Authority

Supreme Court of Virginia - July 3, 2024 - S.E.2d - 2024 WL 3281159

Building owner brought negligence action against adjacent building owner, which was city redevelopment and housing authority, alleging owner’s building was damaged when adjacent owner demolished its building after city declared it to be unlawful nuisance.

The Portsmouth Circuit Court granted adjacent owner’s plea in bar raising defense of tort immunity, and denied owner’s motion to reconsider. Owner appealed. The Court of Appeals affirmed. Owner appealed.

The Supreme Court held that:

City redevelopment and housing authority’s demolition of its building after city declared it to be unlawful nuisance was ministerial legal duty to perform a “proprietary function,” not exercise of governmental discretion, and thus, housing authority was not entitled to immunity from adjacent building owner’s negligence claim alleging its building was damaged during demolition; housing authority bought property that was unsafe for human occupancy, did nothing during ensuing five years to make it safe, allowed public to use building, and demolished building only after receiving notice from city that, if disobeyed, would have exposed housing authority to criminal prosecution and civil penalties, such that housing authority acted no differently than any other private landowner.

Building owner did not violate approbate-reprobate doctrine by asserting on appeal that adjacent building owner, which was city redevelopment and housing authority, was not entitled to immunity from owner’s negligence claim alleging owner’s building was damaged when adjacent owner demolished its building after city declared it to be unlawful nuisance; statement by owner’s counsel before trial court that adjacent owner was acting in its proprietary role on behalf of city did not amount to concession that adjacent owner was acting on behalf of city, as statement included important qualifier of in “proprietary role,” and counsel’s next statement again asserted that adjacent owner was performing “a proprietary function.”




SHORT TERM RENTALS - CONNECTICUT

9 Pettipaug, LLC v. Planning and Zoning Commission

Supreme Court of Connecticut - June 18, 2024 - A.3d - 349 Conn. 268 - 2024 WL 2982704

Homeowners sought review of decision of borough planning and zoning commission to approve a zoning amendment regulating short-term rentals of homes in borough that was a very small, largely seasonal community.

The Superior Court granted homeowners’ motion for summary judgment after denying commission’s motion to dismiss for lack of subject matter jurisdiction. Commission petitioned for certification to appeal, which was granted. The Appellate Court affirmed. Commission appealed.

The Supreme Court held that:

Newspaper in which borough published notice of zoning amendment concerning short-term rentals of homes in borough was a newspaper having a substantial circulation in borough, under the “substantial circulation” component of statutory notice requirement for changes in zoning regulations, even though none of borough’s 14 year-round households subscribed to newspaper and newspaper was not sold anywhere in borough, where newspaper focused on news items of general interest to borough residents, newspaper was readily available for purchase in commercial area of town in which borough was located, content of newspaper was readily accessible online, newspaper’s website allowed free access to legal notices, and borough planning and zoning commission had a long history of using newspaper for its legal notices.

Borough’s compliance with statutory publication requirement for notice of zoning amendment concerning short-term rentals of homes in borough required dismissal of homeowners’ zoning appeal, which was untimely because it was commenced more than 15 days from the date that notice of the decision was published, without the benefit of the statutory savings provision.




IMMUNITY - GEORGIA

Guy v. Housing Authority of City of Augusta

Court of Appeals of Georgia - July 2, 2024 - S.E.2d - 2024 WL 3268630

Tenant in low-income apartment complex owned by city housing authority, who was allegedly shot in the leg on the front porch of her apartment, brought premises-liability action against authority, alleging that authority was negligent in failing to provide property security or take measures to keep property safe, or both.

The trial court granted authority’s motion for summary judgment. Tenant appealed.

The Court of Appeals held that housing authority was an instrumentality of the city entitled to sovereign immunity.

City housing authority was a public corporation using public funds to perform for the city what the General Assembly had deemed to be an essential public and governmental purpose, and thus authority was an instrumentality of the city entitled to sovereign immunity, in premises-liability action brought against it by tenant who was allegedly shot on the front porch of her apartment in low-income apartment complex owned by the authority; authority was statutorily defined as a public body corporate and politic, legislation creating the authority provided that it exercised public and essential governmental functions, and General Assembly authorized authority’s creation in order to address shortage of safe and sanitary dwelling accommodations that were affordable for persons of low income.




CHARTER AMENDMENTS - MAINE

Good v. Town of Bar Harbor

Supreme Judicial Court of Maine - July 2, 2024 - A.3d - 2024 WL 3262053 - 2024 ME 48

Residents brought action against town, seeking a declaratory judgment that voter-adopted modifications to the town’s charter were null and void.

The Superior Court granted residents’ motion for summary judgment and denied town’s motion for summary judgment. Town moved to alter or amend the judgment, and the Superior Court denied the motion. Town appealed.

The Supreme Judicial Court held that:

Charter commission’s proposed changes to town’s charter were modifications under the Home Rule Act that could be presented to voters in separate questions rather than revisions which required a single question; the commission’s discrete proposals reflected limited changes in 19 areas within the town’s current charter structure rather than a major, integrated revision of the charter in its entirety.

The appellate record did not support a finding that any procedural flaw under the Home Rule Act in the election of voters to town’s charter commission materially and substantially affected the ultimate vote on the commission’s recommendation for charter amendments sufficient to justify invalidating the vote; residents challenging the results of the vote did not submit a copy of the charter in effect at the relevant time to support their argument that the commission members were not properly elected.




ZONING & PLANNING - MICHIGAN

Jostock v. Mayfield Township

Supreme Court of Michigan - July 1, 2024 - N.W.3d - 2024 WL 3261121

Objector brought declaratory judgment action against township board and property owner, alleging board’s decision to rezone property to general commercial district, and to allow use of property for drag racing, was unlawful.

The Circuit Court entered declaratory judgment in favor of objector. Property owner appealed. The Court of Appeals affirmed. Leave to appeal was granted.

The Supreme Court held that for a proposed use to be valid under provision of Michigan Zoning Enabling Act (MZEA) allowing conditional rezoning in which an owner of land voluntarily offers certain use and development of the land as a condition to a rezoning of the land or an amendment to a zoning map, the proposed use must be a permitted use within the proposed zoning district, either by right or after special approval.




EMINENT DOMAIN - MISSISSIPPI

Fly v. Yalobusha County, Miss.

United States District Court, N.D. Mississippi, Western Division - June 11, 2009 - Not Reported in F.Supp.2d - 2009 WL 1658096

A county’s alleged taking of road by including it in an official road plan was for a public use and, thus, did not constitute an illegal taking for private use. The road was open to all members of the community and it provided access to the property of at least three other property owners. The road was also used for the connection of utilities to multiple residences.




EMINENT DOMAIN - VIRGINIA

School Board of Stafford County v. Sumner Falls Run, LLC

Supreme Court of Virginia - July 3, 2024 - S.E.2d - 2024 WL 3281914

Owner of property near sites where county planned to build schools filed petition against county school board and Virginia Department of Transportation (VDOT) seeking declarations that school board could access site through private easement or county-owned road, that property owner had vested right to maintain existing intersection, that existing entrance of intersecting roads was exempt from VDOT’s Access Management regulations, and that any taking of property beyond extending current easement would violate doctrine of necessity and Virginia Takings Clause.

The Stafford Circuit Court denied respondents’ plea of sovereign immunity. Respondents filed interlocutory appeal.

The Supreme Court held that:

Property owner’s claim against county school board, which was building schools nearby such property, for declaratory judgment that any taking of property beyond extension of existing easement would violate Virginia Takings Clause was not ripe for adjudication, where no taking had yet occurred, property owner did not allege that Commonwealth of Virginia or school board was on the cusp of damaging its property within the intendment of Takings Clause, and property owner did not dispute that any such taking would be for public purpose, as necessary to comport with Takings Clause.




MUNICIPAL ORDINANCE - WASHINGTON

Potter v. City of Lacey

Supreme Court of Washington, En Banc - July 3, 2024 - P.3d - 2024 WL 3282452

Owner of travel trailer, a vehicle-sheltered individual who was allegedly issued citation and threatened with impoundment of trailer, filed § 1983 suit against city and police chief, challenging constitutionality of municipal parking ordinance barring parking such large vehicles and trailers on public lots and streets for more than four hours per day as violating his federal and state constitutional rights of freedom of travel and association, freedom from cruel and unusual punishment, and freedom from unreasonable searches and seizures.

After removal, the United States District Court for the Western District of Washington granted city’s motion for summary judgment as to claims against city and police chief. Owner appealed. The United States Court of Appeals for the Ninth Circuit certified questions.

The Supreme Court held that parking ordinance of general applicability did not violate right to interstate travel as applied to owner, who sought to protect preferred method of residing in city.

City’s ordinance barring parking of recreational vehicles, trailers, campers, and similar vehicles on public lots and streets for more than four hours per day did not violate state constitutional right to intrastate travel as-applied to owner of travel trailer, who was vehicle-sheltered individual who asserted that he had right not to intrastate travel, that is, right to reside in 23-foot trailer hitched to his truck on public streets and lots for indefinite period of time; city had right to enact health and safety law of general applicability, even if it limited owner’s preferred method of residing in city.




PUBLIC EMPLOYMENT - CALIFORNIA

Los Angeles County Employees Retirement Association v. County of Los Angeles

Court of Appeal, Second District, Division 7, California - June 24, 2024 - Cal.Rptr.3d - 2024 WL 3100166

County employee retirement association brought action against county, seeking declaratory relief and a writ of mandate requiring county board of supervisors to include the employment classifications and salaries for association employees in the county’s employment classifications and salary ordinance.

The Superior Court denied association’s request for declaratory relief and its petition for a writ of mandate.

Association appealed.

The Court of Appeal held that:

County employee retirement board had the authority to hire the personnel the board deemed necessary or appropriate to fulfill the board’s fiduciary responsibility for investment of moneys and administration of the system; that authority included determining the number and type of personnel required to do the job, as well as their compensation, and could not be overruled by the county board of supervisors.

Constitutional provision giving county employee retirement board plenary authority and fiduciary responsibility over the county retirement system did not conflict with county’s home rule authority; the county employee retirement board provision was more recently enacted, more specific, and applied “notwithstanding any other provisions of law or this Constitution to the contrary,” and thus county employee retirement board’s authority carved out an exception to county’s authority to establish classifications and fix compensation for county employees.

County board of supervisors had a mandatory statutory duty to include in county classifications and salary ordinance the employment classes and compensation adopted by the county employee retirement association board for their employees; retirement association board had the exclusive authority to appoint staff as required to accomplish the necessary work of the board, to determine job responsibilities, reporting relationships, and salaries for its employees, to create their own budgets, and to charge administrative expenses against their earnings, and the board of supervisors had no knowledge of or supervisory authority over the necessary work of the retirement board, and no control over retirement board’s budget.

Statute stating that county employee retirement board appointments “shall be county employees” does not give county board of supervisors authority to classify and establish salaries for retirement system employees; retirement system employees are made county employees by statute for the limited purpose of participating in the retirement system and receiving county fringe benefits unless other benefits are established by the retirement system board.




EMINENT DOMAIN - MICHIGAN

Bruneau v. Michigan Department of Environment

United States Court of Appeals, Sixth Circuit - June 20, 2024 - F.4th - 2024 WL 3063766

Property owners, whose properties were flooded after dam collapsed after several days of rain due to static liquefaction, brought putative class action against counties in which dam was located, alleging gross negligence under Michigan law and violations of both Fifth Amendment’s Takings Clause under § 1983 and Takings Clause of Michigan’s constitution.

The United States District Court for the Eastern District of Michigan granted the counties’ motion for summary judgment, and property owners appealed.

The Court of Appeals held that:

Under the federal constitution, counties did not take landowners’ properties, which were flooded after dam collapsed after several days of rain due to static liquefaction, through petitioning efforts to maintain existing water levels behind dam; petitions merely preserved the lake depth at the same level that had existed for roughly a century, counties played no part in regulating or controlling the dam’s infrastructure, and lake levels had little to do with the dam’s collapse, which was caused by soil vulnerabilities in place since the dam’s construction.

Counties’ action in petitioning to keep water levels behind dam at their historical level did not cause dam to collapse, and thus owners of properties flooded by the collapse lacked any inverse condemnation claim against counties under the Michigan Constitution; dam collapse was caused by heavy rains and static liquefaction, neither of which were caused by the county, and the Federal Energy Regulatory Commission’s independent forensic team found that lowering the lake level would not necessarily have stopped the dam’s eventual failure from static liquefaction.




EDUCATION - MINNESOTA

Cajune v. Independent School District 194

United States Court of Appeals, Eighth Circuit - June 26, 2024 - F.4th - 2024 WL 3169925

Plaintiffs, including municipal taxpayers, parent of children in public school district, and unincorporated association of district residents and taxpayers, brought § 1983 action against district and its superintendent, asserting that district violated First Amendment Free Speech Clause by rejecting “All Lives Matter” and “Blue Lives Matter” posters and shirts while permitting the display of an inclusive poster series featuring two posters with the phrase “Black Lives Matter.”

Defendants moved to dismiss amended complaint, and unnamed plaintiffs moved to proceed using pseudonyms. United States District Court for the District of Minnesota granted defendants’ motion and denied unnamed plaintiffs’ motion. Plaintiffs appealed.

The Court of Appeals held that:




POLITICAL SUBDIVISIONS - MISSOURI

Salamun v. Camden County Clerk

Supreme Court of Missouri, en banc - June 25, 2024 - S.W.3d - 2024 WL 3161573

Owners of property management companies along with their businesses brought separate actions against respective counties, business districts, and various county officials seeking a declaration that statutes creating advisory board and mandating that area business districts transfer tax public money to advisory board, a private nonprofit entity, facially violated section of Missouri Constitution which prohibits a political subdivision from granting public money to a private entity.

Following bench trials, the Circuit Court declared statutes unconstitutional and modified statutes by striking phrase “which shall be a nonprofit entity.” Challengers filed separate appeals and briefs in the Supreme Court.

The Supreme Court held that:

Members of advisory board were not publicly elected nor appointed by public authority, and thus advisory board was a private entity and could not be delegated to disburse public tax money, such that statutes, on their faces, requiring area business districts to grant lodging tax, which was public money, to advisory board, which was a private entity, violated section of Missouri Constitution prohibiting a political subdivision from granting public money to a private entity, even though composition of advisory board was prescribed by statute, and even though advisory board was tasked with spending tax revenue for public purposes.

Valid statutes creating and dissolving lake area business districts were so inseparably connected with and dependent upon void statutes creating a governing body and its ability to impose and use lodging tax, which violated section of Missouri Constitution prohibiting a political subdivision from granting public money to a private entity, that Supreme Court could not presume the legislature would have enacted remaining statutes without void statutes, thereby precluding severance of unconstitutional statutes so that the entire statutory scheme was required to be stricken; without advisory board, there could be no lodging tax or an entity to spend lodging tax, and without the lodging tax to be used to promote tourism in the lake area business districts there was no purpose for creating the lake area business districts and no need for a method to dissolve them.




COLLECTIVE BARGAINING - TEXAS

Borgelt v. Austin Firefighters Association, IAFF Local 975

Supreme Court of Texas - June 28, 2024 - S.W.3d - 2024 WL 3210046

Taxpayers brought action against firefighters’ union and city, asserting claims including that provision of collective bargaining agreement between city and union which provided a shared bank of paid leave for city firefighters to use for union activities, subject to contractual requirements and restrictions on its use, violated state constitution’s Gift Clauses.

State intervened in support of taxpayers’ challenge. The 419th District Court granted union’s motion to dismiss and for attorney fees and sanctions under Texas Citizens Participation Act (TCPA), granted partial summary judgment to city and union, and, after bench trial, entered judgment in favor of city and union. Taxpayer and State appealed. The Austin Court of Appeals affirmed. Petition for review was granted.

The Supreme Court held that:




UBI - TEXAS

In re State

Supreme Court of Texas - June 14, 2024 - S.W.3d - 2024 WL 2983176 - 67 Tex. Sup. Ct. J. 1107

State sued county, alleging that a proposed program to provide no-strings-attached monthly cash payments to 1,928 county residents with income below 200% of the federal poverty line violated the Texas Constitution, and seeking an injunction blocking implementation of the proposed program.

The 165th District Court denied state’s motion for a temporary injunction. State appealed, and the Houston Court of Appeals, Fourteenth District, denied state’s request for a temporary order staying payments under the program while its appeal proceeded.

State petitioned for a writ of mandamus and filed a motion for temporary relief. The Supreme Court administratively stayed the payments pending consideration of state’s motion for temporary relief.

The Supreme Court held that state was entitled to temporary injunctive relief preventing implementation of county’s program pending its appeal of trial court’s denial of its motion for a temporary injunction.

In original mandamus proceeding before the Supreme Court, state was entitled to temporary relief preventing implementation of county’s payments to individuals under a poverty-relief program pending its appeal of trial court order denying its motion for a temporary injunction; state demonstrated the likelihood of success on the merits by raising serious doubt about the constitutionality of county’s no-strings-attached program, the potential violation of the Texas Constitution’s provisions prohibiting counties from granting public money to individuals without retaining public control could not be remedied or undone if payments were to commence while the underlying appeal proceeded, and the county and the public would not be harmed by a stay pending determination of the constitutionality of the county’s program.




EMINENT DOMAIN - WISCONSIN

Sojenhomer LLC v. Village of Egg Harbor

Supreme Court of Wisconsin - June 19, 2024 - 2024 WI 25 - 7 N.W.3d 455

Property owner filed an action to enjoin village from acquiring the property through condemnation in order to build a sidewalk.

The Circuit Court granted village summary judgment. Property owner appealed. The Court of Appeals reversed and remanded. Village petitioned for review.

The Supreme Court held that sidewalks are not “pedestrian ways” as that term is defined in statutes that prohibit condemnation, including condemnation by villages, to acquire property to establish or extend pedestrian way.




REFERENDA - ARKANSAS

Reynolds v. Thurston

Supreme Court of Arkansas - May 30, 2024 - S.W.3d - 2024 Ark. 97 - 2024 WL 2755297

Petitioners, who had submitted two proposed measures to amend state constitution which were both rejected by state Attorney General, brought original-action complaint against Secretary of State and Board of Election Commissioners, seeking to have Supreme Court independently certify the legal sufficiency of the measures’ ballot titles and popular names and order them placed on upcoming ballot and to declare unconstitutional certain statutes governing proposed measures.

Secretary and Board moved to dismiss for lack of original jurisdiction and for failure to state claim.

The Supreme Court held that:




ANNEXATION. - UTAH

Summit County v. Town of Hideout

Supreme Court of Utah - June 13, 2024 - P.3d - 2024 WL 2967609 - 2024 UT 16

County brought declaratory judgment action against town challenging town’s annexation of unincorporated area in county without an annexation petition and without county’s consent, alleging violations of annexation code, Municipal Land Use, Development, and Management Act (LUDMA), and Open and Public Meetings Act (OPMA).

The Fourth District Court denied town’s motion for summary judgment based on standing, granted county’s summary judgment motion on a merits issue, and denied reconsideration. Town appealed.

The Supreme Court held that:




STANDING - OKLAHOMA

Hayes v. Penkoski

Supreme Court of Oklahoma - June 11, 2024 - P.3d - 2024 WL 2933086 - 2024 OK 49

Same sex couple, who were officers of an equal rights advocacy group, brought action for a protection order pursuant to the Protection from Domestic Abuse Act against pastor who created social media posts about advocacy group and the couple’s church and who protested at a pride event.

The District Court issued a permanent order of protection. Pastor appealed.

The Supreme Court held that:




EMINENT DOMAIN - FEDERAL

Confederated Tribes and Bands of Yakama Nation v. United States

United States Court of Federal Claims - June 3, 2024 - Fed.Cl. - 2024 WL 2821840

Confederated Tribes and Bands of the Yakama Nation and tribal corporation brought action against the United States alleging that United States breached its trust with the Tribe and a takings claim related to damages from wildfire.

The United States moved to dismiss.

The Court of Federal Claims held that:

 




PUBLIC RECORDS - IOWA

Teig v. Chavez

Supreme Court of Iowa - June 7, 2024 - N.W.3d - 2024 WL 2869282

Citizen filed suit against city, seeking production of records he had requested under the Open Records Act, statutory damages, and declaratory and injunctive relief.

The District Court granted city’s motion for summary judgment and denied citizen’s motion for additional discovery. Citizen appealed.

The Supreme Court held that:




LIABILITY - NEW JERSEY

Padilla v. Young Il An

Supreme Court of New Jersey - June 13, 2024 - A.3d - 2024 WL 2967043

Pedestrian brought negligence action against owners of vacant commercial lot, alleging injury from tripping and falling while walking on the public sidewalk abutting lot.

The Superior Court, Law Division, granted summary judgment to owners. Pedestrian appealed. The Superior Court, Appellate Division, affirmed. Pedestrian filed petition for certification, which was granted.

The Supreme Court held that all commercial landowners, including owners of vacant commercial lots, must maintain public sidewalks abutting their property in reasonably good condition and can be held liable to pedestrians injured as result of their negligent failure to do so; overruling Abraham v. Gupta, 281 N.J. Super. 81, 656 A.2d 850.




PUBLIC UTILITIES - RHODE ISLAND

North Farm Home Owners Association, Inc. v. Bristol County Water Authority

Supreme Court of Rhode Island - June 14, 2024 - A.3d - 2024 WL 2983640

Condominium owners association brought action against county water authority, alleging breach of contract and seeking restitution damages, injunctive relief, and other damages after water authority refused to repair water pipe unless condominium reverted to an individual meter system or took title to the water systems from county.

Water authority filed motion for summary judgment on claims for injunctive relief and remedies. The Superior Court granted the motion, and condominium association filed interlocutory appeal.

The Supreme Court held that:




ZONING & PLANNING - WEST VIRGINIA

Fleming v. Carmichael

West Virginia Intermediate Court of Appeals - May 13, 2024 - S.E.2d - 2024 WL 2126810

Residents of town which included area designated as tourism development district (TDD) under Tourism Development District Act brought action against Secretary of Department of Commerce and Director of Department of Economic Development in their official capacities, seeking to have Act declared void and to obtain injunction prohibiting Act’s enforcement based on alleged constitutional violations.

The Circuit Court granted Secretary and Director’s motion to dismiss and found that Act was constitutional. Residents appealed.

The Intermediate Court of Appeals held that:






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