Cases





ZONING & PLANNING - CALIFORNIA

Schreiber v. City of Los Angeles

Court of Appeal, Second District, Division 6, California - September 28, 2021 - Cal.Rptr.3d - 2021 WL 4436987 - 21 Cal. Daily Op. Serv. 9989 - 2021 Daily Journal D.A.R. 10,274

Neighbors filed petition for writ of administrative mandamus to challenge city planning commission’s approval of a mixed-use development project which included density bonus incentives and waivers.

The Superior Court denied the petition, and neighbors appealed.

The Court of Appeal held that:




LIABILITY - CALIFORNIA

Cavey v. Tualla

Court of Appeal, Fifth District, California - September 24, 2021 - Cal.Rptr.3d - 2021 WL 4343719 - 2021 Daily Journal D.A.R. 10,075

Plaintiff filed personal injury action against school district and district employee for injuries sustained in a traffic accident involving a school district vehicle.

The Superior Court sustained school district’s demurrer without leave to amend and entered a judgment of dismissal. Plaintiff appealed.

The Court of Appeal held that:




EMINENT DOMAIN - GEORGIA

Department of Transportation v. Mixon

Supreme Court of Georgia - October 5, 2021 - S.E.2d - 2021 WL 4528939

Landowner brought action against Georgia Department of Transportation (GDOT), alleging nuisance and inverse condemnation arising from flooding on her property following road-widening project, and seeking injunctive relief and compensation.

The Superior Court dismissed in part. Department applied for interlocutory appeal, which was granted. The Court of Appeals affirmed. Department petitioned for writ of certiorari, which was granted.

The Supreme Court held that:

Waiver of sovereign immunity effected by just compensation provision of State Constitution for claims seeking injunctive relief allows an injunction only to stop the taking or damaging until such time as the authority fulfills its legal obligations that are conditions precedent to eminent domain.

Just compensation provision of State Constitution waived Georgia Department of Transportation’s (GDOT) sovereign immunity against landowner’s inverse condemnation claim seeking injunctive relief arising from flooding on her private property following road-widening project, where landowner alleged that GDOT’s failure to maintain its storm water drainage systems resulted in regular flooding on property, there was no suggestion that GDOT afforded landowner compensation for the alleged taking, and there was no suggestion that GDOT availed itself of legal process to exercise its eminent domain power over landowner’s property. property.




PUBLIC MEETINGS - NEW HAMPSHIRE

Sivalingam v. Newton

Supreme Court of New Hampshire - October 5, 2021 - A.3d - 2021 WL 4552444

Former member of town board of selectmen brought action for injunctive relief against town and current board members, seeking current members’ dismissal.

The Superior Court granted summary judgment to current members but denied board’s motion to dismiss. Former member and board appealed, and current members cross-appealed.

The Supreme Court held that:




MUNICIPAL ORDINANCE - NEW YORK

People v. Torres

Court of Appeals of New York - October 12, 2021 - N.E.3d - 2021 WL 4732737 - 2021 N.Y. Slip Op. 05448

Defendant pled guilty in the Criminal Court of the City of New York, New York County to failure to exercise due care to avoid collision with a pedestrian and failure to yield to a pedestrian, pursuant to provision of city administrative code known as the “Right of Way Law.”

Defendant appealed, and the Supreme Court affirmed. In a separate case, another defendant was convicted after a bench trial in the Criminal Court of the City of New York of violating the same administrative code provision. Defendant appealed, and the Supreme Court, Appellate Term, affirmed. Leave to appeal was granted to defendant in each case.

The Court of Appeals held that:




SCHOOL DISTRICTS - PENNSYLVANIA

In re Formation of Independent School District

Supreme Court of Pennsylvania - October 7, 2021 - A.3d - 2021 WL 4618660

Coalition of inhabitants of borough appealed an order of the Court of Common Pleas denying its petition for formation of an independent school district after the Secretary of Education determined the petition had no educational merit.

The Commonwealth Court reversed. Districts sought review.

The Supreme Court held that as a matter of first impression, Secretary of Education could consider financial implications of transfer upon quality of education provided in affected districts.

In considering petition to establish school district independent of existing district for sole purpose of having new district be absorbed into neighboring district, Secretary of Education could consider financial implications of transfer upon quality of education provided in affected districts.

In reviewing for educational merit a petition for establishment of an independent school district for transfer of territory to another district, the Secretary of Education must take a holistic approach, looking not just at the students who would be transferred, but at the students in each of the affected school districts.

In considering petition to establish school district independent of existing district for sole purpose of having new district be absorbed into neighboring district, Secretary of Education could consider audit addressing educational impact of proposed transfer over objection that financial projections in audit were “conjectural,” where audit was entered into evidentiary record by stipulation and opponent agreed that auditor would not be required to offer witness to testify regarding its contents.




ZONING & PLANNING - CALIFORNIA

Muskan Food & Fuel, Inc. v. City of Fresno

Court of Appeal, Fifth District, California - September 27, 2021 - Cal.Rptr.3d - 2021 WL 4398417 - 21 Cal. Daily Op. Serv. 10,011

Owner of gas station and convenience store petitioned for writ of mandate seeking to set aside city’s approval of a conditional use permit for the development of a neighborhood shopping center across the street from his store.

The Superior Court denied petition, concluding substantial evidence supported city’s zoning decision. Owner appealed, and real parties in interest filed cautionary cross appeal.

The Court of Appeal held that:

Word “petition,” as used in municipal code describing the procedures for appealing city’s approval of a conditional use permit, was vague, requiring court to resolve ambiguity, since it failed to provide the level of formality required to challenge permit; term “petition” could mean making a simple oral request, making a formal written request, or something in between.

Word “petition,” as used in municipal code describing the procedures for appealing city’s approval of a conditional use permit, encompassed both oral and written requests made to the mayor or council member, since there was no specific language in related code sections requiring it only to be in writing.




ZONING & PLANNING - FLORIDA

City of West Palm Beach, Inc. v. Haver

Supreme Court of Florida - September 30, 2021 - So.3d - 2021 WL 4467768 - 46 Fla. L. Weekly S281

City residents brought action against city, challenging city’s inaction in response to residents’ complaints claiming that neighbor was running a group home in violation of a city zoning ordinance, and seeking injunctive relief requiring city to investigate and, if necessary, take enforcement action against neighbor’s alleged zoning violation, a declaratory judgment that city violated its ordinance by refusing to take enforcement action against neighbor, a writ of mandamus requiring city to determine whether neighbor had violated the zoning ordinance and then to take enforcement action, and a writ of certiorari to quash any quasi-judicial decisions or acts taken by city in connection with their refusal to enforce the zoning ordinance against neighbor.

The Circuit Court granted city’s motion to dismiss. Residents appealed, and the Fourth District Court of Appeal affirmed dismissal of the mandamus and certiorari claims, but reversed as to the claims for injunctive and declaratory relief, and certified conflict. City petitioned for discretionary review.

The Supreme Court held that injunctive relief is not available to compel a city to enforce a zoning ordinance against a third party.




MUNICIPAL ADVISORS - ILLINOIS

Kane v. Option Care Enterprises, Inc.

Appellate Court of Illinois, First District, THIRD DIVISION - September 8, 2021 - N.E.3d - 2021 IL App (1st) 200666 - 2021 WL 4076323

Attorney James H. Kane, d/b/a Kane & Co. (Kane), brought claims of breach of contract and quantum meruit against Option Care Enterprises, Inc. (Option Care), seeking $764,762 in compensation for services he provided pursuant to a contingency fee contract to “evaluate and negotiate tax credits and other federal, state, and local level incentives” from Illinois and Wisconsin “government officials.”

The trial court granted summary judgment to Kane’s client after finding that the agreement was unenforceable as a matter of public policy because it provided for contingency fee lobbying in violation of section 8 of the Lobbyist Registration Act (Act) (25 ILCS 170/8) and because enforcement of the contract was barred, recovery under the equitable theory of quantum meruit was also barred.

The appeals court affirmed, finding that the trial court was correct in concluding that Option Care was entitled to summary judgment as to Kane’s breach of contract claim because Kane could not meet the threshold requirement of a valid, enforceable agreement.

 

 

 




POLITICAL SUBDIVISIONS - KANSAS

University of Kansas Hospital Authority v. Board of County Commissioners for Franklin County

Supreme Court of Kansas - September 10, 2021 - P.3d - 2021 WL 4127517

Hospital filed suit against city and county, seeking payment for medical expenses incurred by indigent driver of vehicle who was injured in a crash after fleeing from police.

The District Court granted summary judgment in the hospital’s favor against the city and granted summary judgment in favor of county. City appealed and hospital cross-appealed, and the Court of Appeals affirmed in part, reversed in part, and remanded with directions. Hospital petitioned for review, and city cross-petitioned.

The Supreme Court held that:

City police officers did not arrest indigent patient after he fled from officers in vehicle and was involved in accident, and thus did not have custody of him on that basis at the time the decision was made to obtain medical treatment for him following accident and therefore city was not liable for health care services rendered to patient; while they pursued patient, the pursuit ended without arrest after accident, officer’s directive to patient to tell emergency personnel if he was on any drugs was simply a treatment-related directive, officer did not act on that information, did not handcuff the patient, did not give Miranda warning, and did not tell the patient he was under arrest, officers did not follow patient to hospital, and county placed custodial hold on patient and guarded him until his release to county’s custody.

City police officers did not have custody of indigent patient at the time the decision was made to obtain medical treatment for him, and thus city was not liable for health care services rendered to patient, who was injured in accident after fleeing police in vehicle, where patient was never arrested by city police officers, and patient was not restrained by the officers pursuant to a court or magistrate order.




BALLOT INITIATIVE - OHIO

State ex rel. Rhoads v. Hamilton County Board of Elections

Supreme Court of Ohio - September 16, 2021 - N.E.3d - 2021 WL 4204309 - 2021-Ohio-3209

Relators sought writ of mandamus compelling county board of elections to change ballot language for proposed amendment to city charter.

The Supreme Court held that:

.




REFERENDA - OHIO

State ex rel. T-Bill Development Company, L.L.C. v. Union County Board of Elections

Supreme Court of Ohio - October 1, 2021 - N.E.3d - 2021 WL 4487957 - 2021-Ohio-3535

Property owners and land developer brought action against county board of elections, seeking writs of prohibition and mandamus ordering board to remove zoning referendum from upcoming election ballot.

The Supreme Court held that:




PUBLIC UTILITIES - PENNSYLVANIA

In Re Chester Water Authority Trust

Commonwealth Court of Pennsylvania - September 16, 2021 - A.3d - 2021 WL 4200770

“The narrow issue for our consideration is whether section 5622(a) of the Municipality Authorities Act (MAA), 53 Pa.C.S. § 5622(a), authorizes (or, more appropriately, continues to authorize) a municipality to obtain the assets of a water authority that it created—a water authority that eventually expanded to provide water services outside the borders of the municipality and into other counties—in light of section 1 of Act 73 of 2012,3 which added section 5610(a.1) to the MAA, 53 Pa.C.S. § 5610(a.1.), and transformed the governance structure of such an authority.”

“Upon review, we conclude that section 5610(a.1) did not abrogate, supersede, or otherwise alter a municipality’s longstanding power under section 5622(a) and its statutory predecessors to unilaterally obtain an authority and/or its assets.”




ZONING & PLANNING - PENNSYLVANIA

Pascal v. City of Pittsburgh Zoning Board of Adjustment

Supreme Court of Pennsylvania - September 22, 2021 - A.3d - 2021 WL 4303202

Objectors to nonprofit property owner’s application for variances and special exceptions with respect to plan to maintain retail space, remodel and reopen restaurant, and build dwelling units petitioned for review of decision of zoning board of adjustment (ZBA) granting application.

The Court of Common Pleas affirmed grant of application, and objectors appealed. The Commonwealth Court affirmed. Objectors’ petition for discretionary review was allowed.

The Supreme Court held that:




IMMUNITY - TEXAS

Texas Southern University v. Pepper Lawson Horizon International Group, LLC

Court of Appeals of Texas, Houston (1st Dist.) - September 28, 2021 - S.W.3d - 2021 WL 4432525

Construction company brought action against state university, alleging breach of contract under Texas Civil Practice and Remedies Code Chapter 114 and violations of Texas Prompt Payment Act (PPA) related to university’s alleged failure to grant company an extension and alleged failure to pay bills incurred pursuant to construction contract.

University filed plea to the jurisdiction, which the 157th District Court denied. University appealed.

The Court of Appeals held that:

State university’s sovereign immunity was not waived by Texas Prompt Payment Act (PPA), as required to establish trial court’s jurisdiction over construction company’s action, alleging university failed to pay company’s final bills under construction contract; company did not identify a separate statutory source outside of PPA that allowed a waiver of sovereign immunity for its claim.

Allegations in construction company’s complaint, that state university breached parties’ contract by failing to extend construction schedule, did not constitute a violation of modification provisions of construction contract, which permitted parties to equitably adjust contract time for weather delays and other delays within university’s reasonable control, as required to waive university’s sovereign immunity from construction company’s breach of contract action brought under Texas Civil Practice and Remedies Code; modification provisions set forth procedures for obtaining time extensions, but company did not allege that university failed to comply with such procedures, but rather, company merely disputed the results.

Allegations in construction company’s complaint, that state university failed to grant company power and access to project site by a specific date, provided inaccurate design documents, and failed to refrain from performing other activities at project site during construction, did not constitute express violations of construction contract, as required to waive university’s sovereign immunity from company’s breach of contract action brought under Texas Civil Practice and Remedies Code; contract stated that university made no representation as to accuracy of design documents and that it was not responsible for company’s interpretations of documents, and that university was not responsible for delay or hindrances to work caused by any act or omission of university.

Allegations in construction company’s complaint, that state university breached parties’ contract by failing to make payment of contract and change order balance, did not constitute a violation of bill pay provision of contract, which required company to promptly pay bills and allowed university to audit company’s bills and withhold payments in various circumstances, as required to waive university’s sovereign immunity from construction company’s breach of contract action brought under Texas Civil Practice and Remedies Code; contract expressly limited circumstances in which university had a duty to pay company to when university received a complete application for payment, an updated work progress schedule, and confirmation that project documentation was kept current.




IMMUNITY - GEORGIA

DeKalb County v. Stanley

Court of Appeals of Georgia - September 24, 2021 - S.E.2d - 2021 WL 4350039

Visually impaired pedestrian brought action against county and director of its public works transportation division asserting claims for negligence, nuisance, and violation of Title II of Americans with Disabilities Act (ADA) after she tripped and fell in hole on sidewalk.

The trial court dismissed pedestrian’s claims for negligence and nuisance on ground of sovereign immunity, but denied county’s motion for summary judgment on ADA claim. Parties appealed.

The Court of Appeals held that:

County’s lack of sidewalk inspection procedure and its failure to repair hole in sidewalk until eight months after it received actual knowledge of its existence did not demonstrate deliberate indifference required to support visually impaired pedestrian’s claim for compensatory damages under Title II of Americans with Disabilities Act (ADA) after she tripped and when she fell into hole, absent evidence that county eschewed sidewalk repair policy in order to discriminate against persons with disabilities, that it received numerous and repeated complaints about problems with its sidewalks to which it did not respond or intentionally ignored, or that county official with substantial supervisory authority had actual knowledge of hole prior to accident.

Sovereign immunity barred negligence claim brought against county by visually impaired pedestrian who was injured after she tripped and fell into hole in sidewalk, even if proper maintenance of sidewalk was ministerial duty, rather than governmental function.

Sovereign immunity barred nuisance claim brought against county by visually impaired pedestrian who was injured after she tripped and fell into hole in sidewalk.




BONDS - ILLINOIS

UIRC-GSA Holding, Inc. v. William Blair & Company, LLC.

United States District Court, N.D. Illinois, Eastern Division - September 29, 2021 - Slip Copy - 2021 WL 4459530

UIRC-GSA Holding (Plaintiff) acquires and operates properties leased to the U.S. General Services Administration (GSA) to be financed by the sale of bonds through its subsidiaries. William Blair & Company (Defendant or Blair) was Plaintiff’s investment banker and placement agent for certain bond offerings, the proceeds of which were used to acquire a portfolio of real estate properties.

Between 2012 and the close of discovery, Plaintiff executed a total of six bond offerings. To market the bond offerings, Plaintiff created and used a Private Placement Memorandum (PPM) and an Indenture of Trust. Plaintiff registered copyrights in the PPM for the transactions, as well as the preliminary and final versions of the PPM and the Indenture of Trust. “Plaintiff could not copyright the entire document, and the Copyright Office required Plaintiff to disclaim ‘standard legal language.’ At issue, then, are several paragraphs within these documents.”

Defendants noted that Plaintiff’s documents appeared to be revised versions of offering documents from an earlier deal involving third parties unrelated to Plaintiff, namely the Idaho Housing and Finance Association. Plaintiff concedes that its attorneys provided the Idaho deal documents as a template, but claims that its top executives “spent about six months painstakingly writing and re-writing the critical sections of the [PPM],” and “did almost all of the work themselves.” Defendant contests this assertion, noting that Plaintiff’s documents have substantial overlap with the Idaho deal documents, such that they are verbatim or near verbatim. It is undisputed that Plaintiff did not receive permission to use the Idaho deal documents. It is also undisputed that Defendant played no meaningful role in the drafting process for Plaintiff’s documents.

At some point in late 2014, a competitor of Plaintiffs, Rainier, completed a bond offering very similar to Plaintiff’s. Blair acted as the investment banker and placement agent for Rainier. Plaintiff asserts that Blair approached Rainier and helped Rainier “mimic” Plaintiff’s successful bond offerings, using Plaintiff’s copyrighted documents. “Rainier’s confidential placement memorandum and indenture of trust appears to have striking similarities to Plaintiff’s PPM.” Plaintiff further claimed that this overlap was intentional, and that Defendant actively encouraged and personally directed Blair’s employees and Blair’s outside counsel to use the infringing materials to solicit other clients, including Rainier.

Defendants dispute Plaintiff’s characterization, arguing that only 5% of the Rainer confidential placement memorandum is alleged to be copied from Plaintiff’s documents, and even less for Rainier’s indenture of trust. Defendants also note that they did not draft Rainier’s documents, rather the law firm Mayer Brown did.

Blair moved for summary judgment, arguing that Plaintiff’s documents are not entitled to copyright protection because they are unauthorized derivative works and lack originality.

Defendants argued that the copyrighted portions of Plaintiff’s documents lack the requisite modicum of creativity and originality, are unauthorized derivative works based on the Idaho deal documents, and are largely unprotectable facts, ideas, or fragmented or functional phrases, such as definitions of terms. Plaintiff responded that their executives painstakingly rewrote their documents such that they are unique and original. Plaintiff further argued that the works cannot be derivative unless the underlying work is also subject to copyright protection, and there is no indication that the Idaho documents were copyrighted.

The District Court concluded that Plaintiff’s documents lacked originality and were not sufficiently creative to warrant copyright protection.

 




ZONING & PLANNING - MISSISSIPPI

American Tower Asset Sub, LLC v. Marshall County

Supreme Court of Mississippi - September 2, 2021 - So.3d - 2021 WL 3926009

Objector appealed decision of the county board of supervisors to approve applicant’s request for special exception to build 290-foot tower on a plot designated an agricultural zone.

The Circuit Court granted motion to dismiss brought by county. Objector appealed.

The Supreme Court held, as matter of first impression, that objector’s failure to deliver copy of notice of appeal to president of the board of supervisors was procedural defect that could be remedied.

Objector’s failure to deliver copy of notice of appeal of decision of the county board of supervisors to approve applicant’s request for special exception to build tower on plot designated agricultural zone to president of the board of supervisors was procedural defect that could be remedied; despite statutory requirement that copy of notice of appeal be delivered to president, statute did not specify exact method of service or delivery that was required, notice of appeal initiated the appeal, and filing of the notice established appellate jurisdiction in circuit court.




PUBLIC UTILITIES - OHIO

In re Application of Duke Energy Ohio, Inc.

Supreme Court of Ohio - September 22, 2021 - N.E.3d - 2021 WL 4301266 - 2021-Ohio-3301

Electric power and natural gas company applied for a certificate of environmental compatibility and public need to construct a natural gas pipeline.

The Power Siting Board granted company a certificate for the construction, operation, and maintenance of the pipeline along an alternative route. City and other intervenors appealed.

The Supreme Court held that:

Even if electric power and natural gas company’s alternate-route proposal in its application for a certificate of environmental compatibility and public need to allow construction of a natural gas pipeline was not “fully developed information” at the time of submission of application, in violation of administrative code filing requirements, city was not harmed by the power siting board’s failure to deny the application based on the error; company provided supplemental information, power citing board determined that company eventually provided all information required by statute, staff received the information necessary to conduct its investigation, and intervenors had access to the information through discovery.

Power siting board’s determination, in granting certificate for the construction, operation, and maintenance of natural gas pipeline, that natural gas pipeline would begin to address system supply balance and mitigate electric power and natural gas company’s dependence upon Kentucky station as it would reduce company’s substantial dependence upon Kentucky station with the station serving approximately 45 to 50 percent of peak day load after construction of natural gas pipeline, rather than 55 percent, was not erroneous; there was no qualitative standard for determining the sufficiency of an improvement, and report indicated that company’s dependence upon Kentucky station posed a “significant exposure to reliability” and threatened “far reaching” consequences should a supply disruption occur.

Evidence supported finding that power siting board adequately considered the nature of the probable environmental impact of electric power and natural gas company’s proposed gas pipeline in relation to planned sewer project before granting company a certificate for the construction, operation, and maintenance of the pipeline, even if company did not address its pipeline’s potential conflict with the planned sewer project; board addressed the potential conflict in its order, and adjustments to avoid a conflict with sewer project were filed with the board in a separate case.

Evidence supported power siting board’s finding that electric power and natural gas company thoroughly addressed safety concerns relating to its application for a certificate of environmental compatibility and public need to construct a natural gas pipeline; company made commitments to apply enhanced design, construction, operation and assessment criteria to the installation and maintenance of pipeline, including having a wall thickness of more than twice that required for transmission lines, using remote control valves, and installing the pipeline at a depth of 48 inches of cover, which was twice that required for distribution lines and a foot deeper than that required for transmission lines, as well as complying with federal gas pipeline safety requirements.

The record supported power siting board’s evaluation of gas pipeline’s estimated tax benefits, in granting certificate for the construction, operation, and maintenance of gas pipeline; electric power and natural gas company estimate in its amended application that the alternate route for pipeline would generate approximately $2.2 million in tax benefits under 2016 tax rates, with $617,000 going to city, and company later supplemented the information, estimating that the alternate route would generate nearly $2.9 million in tax benefits under 2018 tax rates, with a little more than $1 million going to city.




IMMUNITY - PENNSYLVANIA

Brooks v. Ewing Cole, Inc.

Supreme Court of Pennsylvania - September 22, 2021 - A.3d - 2021 WL 4301270

Courthouse visitor brought personal injury action against Family Court and others after she was allegedly injured while walking into unmarked glass wall at Family Court building.

The Court of Common Pleas denied summary judgment on sovereign immunity grounds. Family Court appealed. The Commonwealth Court quashed notice of appeal. Family Court filed petition for allowance of appeal.

The Supreme Court held that order denying Family Court’s motion for summary judgment on its defense of sovereign immunity was an appealable collateral order.

Order denying Family Court’s motion for summary judgment on its defense of sovereign immunity in personal injury action was an appealable collateral order; issue was a purely legal question that did not require examination of merits of claim, right to sovereign immunity defense was too important to evade review before final judgment, and defense would be irreparably lost if appellate review of adverse decision on sovereign immunity were postponed until final judgment.




BONDS - WISCONSIN

In re Atrium of Racine, Inc.

Court of Appeals of Wisconsin - July 30, 2021 - Slip Copy - 2021 WL 3235321 (Table) - 2021 WI App 63

When the Atrium, a seventy-six-unit senior housing facility, went into receivership in May 2017, it owed its residents $7,487,000 for entrance fees, deposit fees and trust funds that the residents had paid at the inception of their residency at the Atrium (the Residents). It also owed $6,097,000 to some 800 individual bondholders who had invested in the Atrium by purchasing bonds (the Bondholders).

The circuit court concluded that the Bondholders had priority over the rights of the Residents to the remaining assets of the Atrium.

Residents appealed.

The Court of Appeals reversed and remanded, holding that the Residents’ entrance fees and security deposits had priority over the interests of the Bondholders.

The Bondholders were advised via the Prospectus and Project Contract that the entrance fees were “refundable resident deposits” that qualified as “Permitted Liens.” The definition of entrance fees was contained in both the Project Contract and the Prospectus, which defined them as: “The fees, other than monthly service charges, paid by residents of a Facility to the [Obligor/Corporation] for the purpose of obtaining the right to reside in a Facility, including any refundable resident deposits described in any lease or similar residency agreements ….”

“We need not create a constructive trust in this action as neither party has been unjustly enriched. The sole question before us is whether the Residents or the Bondholders have the superior right to the assets being held in the receivership. We conclude the entrance fees and security deposits paid by the Residents in this case are superior in priority to the Bondholders’ claims. The Bondholders were aware from the Prospectus and Project Contract that the entrance fees constituted permitted liens and had priority over their claims when they purchased their bonds. It would be disingenuous to now assert that these provisions indicating that the entrance fees were permitted liens are meaningless. Thus, the rights of the Residents to their entrance fees and security deposits are superior to the Bondholders’ rights to the Atrium’s assets, and as such, the circuit court erred as a matter of law in its order that the Bondholders have priority over the entrance fees and security deposits owned by the Residents.”

“We hold that (1) the Residents and the Atrium contracted as landlord and tenant, (2) their contracts were rental agreements within the meaning of the law, (3) the entrance fees (and security deposits) were security deposits within the meaning of the law, and (4) the circuit court erred in giving the Bondholders a priority security interest over the Residents’ entrance fees and security deposits.”




QUIET TITLE - ALABAMA

City of Birmingham v. Metropolitan Management of Alabama, LLC

Supreme Court of Alabama - September 17, 2021 - So.3d - 2021 WL 4235435

City moved to vacate default judgment quieting title to real property in which city claimed a recorded-assessment interest, which plaintiff in the quiet-title action averred it had not discovered until after entry of the default judgment.

The Circuit Court denied motion. City appealed.

The Supreme Court held that plaintiff had constructive knowledge of city’s interest in real property as well as its “residence,” i.e., city hall, and thus plaintiff was required to serve city by some other method before serving notice by publication.

Plaintiff in quiet-title action had constructive knowledge of city’s interest in real property as well as its “residence,” i.e., city hall, and thus plaintiff was required to serve city by some other method before serving notice by publication; city’s deed, which specified that it was prepared by a person whose location was city hall, was recorded about ten years before tax-sale purchaser conveyed the real property to plaintiff, and Rules of Civil Procedure provided that a municipality could be served with process by serving its chief executive officer or clerk, whose offices would ordinarily be at city hall.




ZONING & PLANNING - CALIFORNIA

Los Angeles Department of Water and Power v. County of Inyo

Court of Appeal, Fifth District, California - August 17, 2021 - 67 Cal.App.5th 1018 - 283 Cal.Rptr.3d 119 - 21 Cal. Daily Op. Serv. 8480

City department of water and power filed petition for writ of mandate, alleging that county, which sought to acquire city department’s landfill sites in county by eminent domain, failed to properly identify the true nature and scope of its “project” under the California Environmental Quality Act (CEQA).

Following transfer, the Superior Court entered judgment and issued writ, and county appealed.

The Court of Appeal held that:

County did not provide adequate notice that California Environmental Quality Act (CEQA) exemptions would be considered at public meeting regarding proposed condemnation of landfills, and thus CEQA’s issue exhaustion requirement did not apply to landowner’s CEQA challenges to county’s reliance on CEQA exemptions; agenda request form for the hearing of county’s board of supervisors did not mention CEQA or any exemption, and first disclosure or notice occurred just before the close of the public portion of the hearing when a county staff member stated that county believed the proposed condemnation was exempt from CEQA under the existing facilities exemption and the commonsense exemption.

Categorical California Environmental Quality Act (CEQA) exemption for existing “facilities” does not include unlined landfills; some landfills pose a threat to groundwater, air quality and public health.




POLITICAL SUBDIVISIONS - GEORGIA

McClain v. Carrollton Police Department

Court of Appeals of Georgia - September 2, 2021 - S.E.2d - 2021 WL 3926001

Pro se plaintiff brought action against city police department for defamation, malpractice, and illegal procession.

The Superior Court granted department’s motion to dismiss. Plaintiff appealed.

The Court of Appeals held that as a matter of first impression, a municipal police department is not a separate legal entity subject to suit.

Municipal police departments are not separate legal entities subject to suit because they are merely agents or instrumentalities of the municipality.




PUBLIC UTILITIES - OHIO

In re Application of Suburban Natural Gas Company

Supreme Court of Ohio - September 21, 2021 - N.E.3d - 2021 WL 4269964 - 2021-Ohio-3224

Public gas utility filed application with the Public Utilities Commission of Ohio (PUCO) for a rate increase to cover costs of a pipeline extension. PUCO approved the rate increase and denied consumers’ application for a rehearing.

Consumers appealed.

The Supreme Court held that:




LOCAL GOVERNANCE - OHIO

State ex rel. Grumbles v. Delaware County Board of Elections

Supreme Court of Ohio - September 13, 2021 - N.E.3d - 2021 WL 4145145 - 2021-Ohio-3132

Incumbent township trustee filed petition for writ of mandamus ordering county board of elections to certify his name for placement on ballot as candidate for different seat on same board of township trustees.

The Supreme Court held that:

Incumbent township trustee was eligible to run as candidate for different seat with different term on same board of township trustees, though board of elections asserted that there would be inherent conflict of interest in trustee’s involvement in appointing his successor to trustee position he would vacate; statute governing township board of trustees provided for three distinct seats on board, there was nothing in statutory scheme governing township trustees or elections generally that prohibited incumbent trustee from seeking to be elected to seat with different term than one he was currently serving, concern about conflict was policy consideration not set forth in relevant statutes, and when General Assembly had prohibited candidacies, it had done so expressly.




PUBLIC RECORDS - VERMONT

Human Rights Defense Center v. Correct Care Solutions, LLC

Supreme Court of Vermont - September 3, 2021 - A.3d - 2021 WL 4032925 - 2021 VT 63

Nonprofit advocacy group brought action against government contractor that provided medical care to incarcerated individuals, seeking to compel disclosure under the Public Records Act (PRA) of claims, lawsuits, or settlements arising from contractor’s provision of services under its contract.

The Superior Court entered summary judgment for contractor. Advocacy group appealed.

The Supreme Court held that:




OPEN MEETINGS - ARIZONA

Welch v. Cochise County Board of Supervisors

Supreme Court of Arizona - September 2, 2021 - P.3d - 2021 WL 3924147

County resident brought action against county board of supervisors, and its individual members, alleging violations of open-meeting laws and conflict-of-interest statute in connection with board’s appointment of board member as a justice of the peace, and seeking relief including, inter alia, an order declaring member’s appointment null and void, an injunction requiring the board to open position to public applications, various writs of mandamus, including to remove board members, and penalties against individual board members.

The Superior Court granted board’s motions to dismiss for lack of standing and failure to state a claim. Resident appealed. The Court of Appeals reversed and remanded. Petition for review was granted.

The Supreme Court held that:




EMINENT DOMAIN - CALIFORNIA

City of Escondido v. Pacific Harmony Grove Development, LLC

Court of Appeal, Fourth District, Division 1, California - August 26, 2021 - Cal.Rptr.3d - 68 Cal.App.5th 213 - 2021 WL 3783247 - 21 Cal. Daily Op. Serv. 8775

City brought eminent domain action against land owners, which sought to acquire strip of owners’ land by condemnation.

Following bench trial on bifurcated issue of valuation of land, the Superior Court entered judgment in favor of city. Owners appealed.

The Court of Appeal held that:

City’s dedication requirement for strip of owners’ property to build industrial road prior to further development of property was constitutional, as was required for Porterville doctrine, 195 Cal.App.3d 1260, for valuing property in condemnation proceeding to apply, despite contention that road across property was unnecessary because existing frontage road could have been widened, where dedication in exchange for development approval was logically related to public interest in mitigating traffic caused by development, consideration of most favorable comparison for owners—that is, using higher alleged valuation for strip—showed that dedication was not disproportionate, and frontage road was overburdened such that further development would violate general development plan’s policy goal.

It was reasonably probable that city would impose constitutional dedication requirement on property owners for strip of property in exchange for permit to further develop land, and thus Porterville doctrine, 195 Cal.App.3d 1260, for valuing property in condemnation proceedings applied to determine value of owners’ property, where owners acknowledged that development of property would likely have required some sort of dedication to mitigate any resulting adverse impact, and city’s long-term development planning, in place for more than 10 years, contemplated connecting parkway across property via condemned strip.

City’ dedication requirement for strip of owners’ property to build road prior to further development of property arose four years prior to date of probable inclusion of property in city’s public project, and thus project effect rule did not apply when determining value of property in condemnation proceeding, despite contention that dedication requirement did not arise until year in which city amended general redevelopment plan to restrict access to owners’ property, where dedication requirement as to strip arose four years prior to date of probable inclusion when plan fixed location of road extension across property, and, at time of purchase years after plan was put in place, owners should have reasonably expected that any development approval would be conditioned on dedication of strip.

City’s condemnation action for strip of owners’ property was not unreasonably delayed, and thus owners were not entitled to precondemnation damages, despite contention that city’s formal announcement of necessity to condemn property occurred 10 years prior to adoption of resolution of necessity to condemn when city entered into agreement to permit construction of hospital, where action was filed two days after resolution was adopted, city lacked authority to approve any development of property until city annexed property from county approximately one year prior to resolution, and owners never sought city approval to develop property in any other manner other than tentative map proposal that owners ultimately withdrew.




PUBLIC UTILITIES - CONNECTICUT

Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority

Supreme Court of Connecticut - August 18, 2021 - A.3d - 2021 WL 3671081

Operator of hotel brought negligence action against municipal water authority seeking to recover loss of revenue in connection with water supply outage which lasted several days.

The Superior Court granted defendant’s summary judgment motion. Plaintiff appealed. The Supreme Court reversed and remanded. On remand, the Superior Court again granted defendant’s summary judgment motion. Plaintiff appealed.

Upon transfer from the Appellate Court, the Supreme Court held that:




IMMUNITY - MARYLAND

Bailey v. City of Annapolis

Court of Special Appeals of Maryland - September 1, 2021 - A.3d - 2021 WL 3909625

Arrestee brought action against city, police officer, and police department employees to recover for malicious prosecution, gross negligence, and negligence in connection with second wrongful arrest based on warrant for arrest of suspect with same name and birth date.

The Circuit Court dismissed malicious prosecution and gross negligence claims and entered summary judgment for officer and employees on negligence claim. Arrestee appealed.

The Court of Special Appeals held that:




ZONING & PLANNING - MASSACHUSETTS

West Street Associates LLC v. Planning Board of Mansfield

Supreme Judicial Court of Massachusetts, Bristol - August 30, 2021 - N.E.3d - 488 Mass. 319 - 2021 WL 3852207

Abutting landowner of proposed location for medical marijuana dispensary operated by recently converted for-profit organization brought action against town planning board challenging the issuance of a special permit to construct a medical marijuana dispensary.

The Superior Court Department found no error in board’s decision to grant for-profit organization a special permit and concluded town bylaw that required medical marijuana dispensaries to be operated by nonprofit entities was preempted. Landowner appealed.

The Supreme Judicial Court held that town bylaw was preempted by state law to the extent it required all medical marijuana dispensaries to be nonprofit organizations.

Town bylaw was preempted by state law to the extent it required all medical marijuana dispensaries to be nonprofit organizations, and thus special permit issued by town planning board to recently converted for-profit organization to construct a medical marijuana dispensary could not be revoked; Legislature disavowed statutory and regulatory provisions regarding nonprofit organizations when it repealed and replaced the act and expressly allowed medical marijuana establishments to be for-profit, and town’s bylaws frustrated one of the purposes of the amended act which was to allow for-profit entities to distribute medical marijuana.




REFERENDA - OHIO

State ex rel. Pennington v. Bivens

Supreme Court of Ohio - September 13, 2021 - N.E.3d - 2021 WL 4145035 - 2021-Ohio-3134

Petitioners filed petition for writ of mandamus seeking to compel city attorney or city council to certify sufficiency of zoning-amendment referendum petition and to compel city council to submit referendum petition to electors at the general election.

The Supreme Court held that:

Petitioners were not required to comply with statute requiring submission of certified copy of zoning ordinance to city auditor before circulating zoning-amendment referendum petition, under terms of city charter; statutory procedures for circulating referendum petition did not apply to municipality, such as city, that had adopted its own charter containing referendum provision for its own ordinances and other legislative measures, city charter incorporated only those general laws that were applicable to the municipality and that did not conflict with charter’s provisions, city charter allowed circulation without submission to auditor, which statute prohibited, such that there was conflict and charter controlled, and charter left no room for statutes to overlay additional procedures.

Laches did not bar petitioners from obtaining writ of mandamus to compel city attorney to certify sufficiency of zoning-amendment referendum petition so that city council could refer zoning amendment to electors at general election, though city attorney and city council asserted that petitioners’ unreasonable delay in filing action caused matter to become expedited election matter and resulted in Supreme Court issuing separate scheduling order requiring them to submit their answer even earlier than date in default expedited briefing schedule; matter was fully briefed well in advance of deadline for preparing absentee ballots, case presented relatively straightforward issues, none of which required extensive discovery, and respondents were able to file answer three days early.

Award of attorney fees was not warranted to petitioners, as successful party on petition for writ of mandamus to compel city attorney to certify sufficiency of zoning-amendment referendum petition so that city council could refer zoning amendment to electors at general election, under statutes governing fee awards in taxpayer suits, where precedent lent support to city attorney’s position that petitions were not sufficient because petitioners failed to comply with statutory requirement to file certified ordinance with city auditor before circulating the petitions.




SCHOOLS - SOUTH CAROLINA

Wilson ex rel. State v. City of Columbia

Supreme Court of South Carolina - September 2, 2021 - S.E.2d - 2021 WL 3928992

State’s Attorney General brought declaratory judgment action against city, seeking declaration that city ordinances mandating use of facemasks in all K-12 public schools within the city due to COVID-19 pandemic violated state legislature’s appropriations act and were void.

The Supreme Court held that:

State legislature’s policy determination to leave to parents the decision as to whether students should wear facemasks in K-12 public schools was within the broad parameters of legislature’s constitutional boundaries, and thus Supreme Court did not have power to impose its own policy judgment on state legislature or city, in state Attorney General’s action for declaration that city ordinances requiring use of facemasks in city’s public schools during COVID-19 pandemic violated state legislature’s appropriations act, which prohibited school districts from using any appropriated funds to require students and/or employees to wear facemasks at education facilities.

Provision of state legislature’s appropriations act that prohibited school districts from using state-appropriated funds to require students and/or employees to wear facemasks at any of school district’s education facilities did not violate one-subject rule of the State Constitution; provision was reasonably and inherently related to the spending of tax money, provision was included as part of Department of Education’s budget, and provision had legitimate and natural association with title of the appropriations act, which included language indicating that the act was “to regulate the expenditure of” appropriated funds.

City ordinances imposing mandate for students and school employees to wear facemasks in K-12 public schools in the city due to COVID-19 pandemic, and requiring school personnel to enforce the mask mandate or face monetary and other legal sanctions, violated provision of state legislature’s appropriations act which prohibited school districts from using any state-appropriated funds to require students and/or employees to wear facemasks at education facilities, although city claimed that the city itself would fund and enforce the mandate without the use of any state-appropriated funds; ordinances forced school personnel, who had connection to state-appropriated funds, to choose between violating the appropriations act or city law.

City ordinances imposing mandate for students and school employees to wear facemasks in K-12 public schools in the city due to COVID-19 pandemic, and requiring school personnel to enforce the mask mandate or face monetary and other legal sanctions, were preempted by state legislature’s appropriations act which prohibited school districts from using any state-appropriated funds to require students and/or employees to wear facemasks at education facilities; ordinances expressly conflicted with the appropriations act, such that compliance with both was not possible, and ordinances frustrated the purposes of the relevant provision of the appropriations act.




BALLOT INITIATIVE - TEXAS

In re Petricek

Supreme Court of Texas - September 1, 2021 - S.W.3d - 2021 WL 3909908 - 64 Tex. Sup. Ct. J. 1769

Voter, who signed petition to city council for proposed ordinance that, according to petition, would establish minimum standards for city police department to enhance public safety and police oversight, transparency, and accountability, petitioned for writ of mandamus, challenging city council’s chosen ballot language, after city council chose to place proposed ordinance before the voters for approval, using its own description of the ordinance to be used on the ballot, rather than using the caption set forth in the petition as the ballot language.

The Supreme Court held that:

City charter was a law that otherwise prescribed the wording required to appear on ballot for a petition-initiated ordinance, for purposes of provision of the Election Code requiring the authority ordering an election to prescribe the wording of a proposition that is to appear on the ballot, unless “otherwise provided by law”; Election Code defined “law” to mean “a constitution, statute, city charter, or city ordinance,” city charter article governing petition-initiated ordinances stated that the ballot “shall state the caption of the ordinance,” and although Election Code did not define “caption,” city acknowledged that the caption was the proposition briefly laying out the measure or initiated ordinance.




ZONING & PLANNING - VERMONT

In re Snowstone, LLC Act 250 Jurisdictional Opinion

Supreme Court of Vermont - September 3, 2021 - A.3d - 2021 WL 4025651 - 2021 VT 72

Prospective purchaser of proposed stone quarry sought review of jurisdictional opinion of state land use district coordinator that purchaser needed a permit under state’s land use and development law for quarry, which was on less than an acre of land within a larger unimproved parcel in a municipality without permanent zoning and subdivision bylaws.

The Superior Court, Environmental Division, determined that quarry did not need state permit. Objectors appealed.

The Supreme Court held that:

Under permitting requirements of state’s land use and development law, a “development” on more than one acre of land, needing a permit in a “one-acre town” that has not adopted permanent zoning and subdivision bylaws, refers to the land actually used for the construction of improvements, rather than the size of the parcel on which the construction of improvements will be located.

Proposed stone quarry on less than an acre of land within a larger unimproved parcel was not a “development” in a municipality that had not adopted permanent zoning and subdivision bylaws, and therefore the quarry did not require a permit under state’s land use and development law.

Failure of proposed stone quarry operator to inform objectors of a stormwater permit decision for quarry within ten days of obtaining permit did not excuse objectors’ failure to abide by Environmental Division’s order giving objectors 30 days from stormwater permit determination to request further hearing in appeal of jurisdictional opinion of state land use district coordinator regarding need for a permit under state’s land use and development law, where objectors participated in stormwater permitting proceedings and had notice that stormwater permit was issued before deadline for seeking further hearing in appeal of jurisdictional opinion in order to present evidence regarding project footprint in light of stormwater permit conditions.




IMMUNITY - ARIZONA

Dinsmoor v. City of Phoenix

Supreme Court of Arizona - August 6, 2021 - 50 Arizona Cases Digest 17 - 492 P.3d 313

Mother brought action against school district, city, and school officials, alleging negligence-based claims arising from female student’s death after being shot by ex-boyfriend while the two were at a friend’s house after school.

The Superior Court entered summary judgment for all defendants. Mother appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. District and officials petitioned for review, and the petition was granted.

The Supreme Court held that:




UTILITIES - CALIFORNIA

Alameda County Waste Management Authority v. Waste Connections US, Inc.

Court of Appeal, First District, Division 2, California - August 18, 2021 - Cal.Rptr.3d - 2021 WL 3661201 - 21 Cal. Daily Op. Serv. 8550 - 2021 Daily Journal D.A.R. 8624

County waste management authority sued three out-of-county landfills that disposed of waste originating in the county, petitioning for injunctive or declaratory relief to enforce its authority to inspect specified records kept by the landfills.

The Superior Court granted county authority’s motion for judgment on the pleadings and compelled landfills to allow inspection. Landfills appealed.

The Court of Appeal held that:

The language “as necessary to enforce the collection of local fees” in subsection of the Integrated Waste Management Act which governed local governments’ rights to inspect and copy specified records related to waste originating in their jurisdiction did not impose as a precondition any factual showing of necessity; that language stated just one purpose for which local government entities could use the records, the mechanism provided for government entities to enforce their authority to inspect indicated inspection was a power or a right, “as necessary” did not inevitably mean “essential,” and read in the context of the entire section and its legislative history, that language meant that local agencies with fee ordinances were entitled to inspect and copy the records without precondition.

County waste management authority was entitled to judgment on the pleadings in case in which county authority sued landfills to enforce its statutory authority to inspect and copy specified records kept by the landfills related to waste originating in the county, where the only issue where there was a real dispute was a legal one, regarding the interpretation of a subsection of the Integrated Waste Management Act which governed local governments’ rights to inspect and copy such records, and the statute required no showing of factual necessity for county authority to be authorized to inspect and copy the records.




ELECTIONS - ILLINOIS

Walker v. Agpawa

Supreme Court of Illinois - August 26, 2021 - N.E.3d - 2021 IL 127206 - 2021 WL 3776296

Objectors sought review of decision of municipal officers electoral board finding that mayoral candidate was duly qualified candidate for office despite federal felony conviction for mail fraud.

The Circuit Court affirmed. Objectors appealed. The Appellate Court reversed. Candidate petitioned for leave to appeal, which was allowed.

The Supreme Court held that:




STATUTE OF LIMITATIONS - INDIANA

City of Marion v. London Witte Group, LLC

Supreme Court of Indiana - June 17, 2021 - 169 N.E.3d 382

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

The Superior Court granted in part and denied in part financial advisor’s motion for summary judgment. City appealed and financial advisor cross-appealed. The Court of Appeals affirmed in part, reversed in part, and remanded with instructions. City sought transfer, and transfer was granted.

The Supreme Court held that:

The Supreme Court would adopt the equitable tolling doctrine of adverse domination, which was an equitable doctrine that tolled statutes of limitations for claims by corporations against its officers, directors, lawyers and accountants for so long as corporation was controlled by those acting against its interests, as a logical corollary of its discovery rule.

The adverse domination doctrine, which tolled the statute of limitations as long as the corporate plaintiff was controlled by alleged wrongdoers, applied to both private and municipal corporations.

Genuine issues of material fact existed as to whether mayor adversely dominated the city, and whether company that provided financial advice to city contributed to it, precluding summary judgment based on the adverse domination doctrine on company’s statute of limitations defense in negligence, breach of fiduciary duty, and constructive fraud action.




BUILD AMERICA BONDS - INDIANA

Indiana Municipal Power Agency v. United States

United States Court of Federal Claims - July 23, 2021 - Fed.Cl. - 2021 WL 3123777 - 128 A.F.T.R.2d 2021-5316

Public-sector power providers filed suit against United States, claiming violation of statutory duty, under American Recovery and Reinvestment Act (ARRA), and breach of contract by IRS failing to refund 35% of interest payable under their Direct Payment Build America Bonds (BABs) that they had issued under authority of ARRA.

Government moved to dismiss for failure to state claim.

The Court of Federal Claims held that:

Issuers of Direct Payment Build America Bonds (BABs), under American Recovery and Reinvestment Act (ARRA), asserted claims against United States that were within Tucker Act jurisdiction, for alleged violation of statutory duty under ARRA and breach of contract by failing to refund 35% of interest payable under BABs, since ARRA was separate money-mandating statute that created payment obligation on government, and issuers alleged nonfrivolous claim of contract with United States.

Statute providing funding for tax refunds to pay issuers of Direct Payment Build America Bonds (BABs), under American Recovery and Reinvestment Act (ARRA), did not constitute “appropriation Act,” but rather authorized “direct spending,” and thus, issuers’ refunds of 35% of interest payable for their BABs were subject to sequestration, under Budget Control Act and American Taxpayer Relief Act, that permanently canceled budgetary resources, including direct spending, defined as budget authority provided by law other than appropriation Acts, since BABs were not statutorily listed as program exempted from sequestration.

Issuers of Direct Payment Build America Bonds (BABs), under American Recovery and Reinvestment Act (ARRA), could not preserve from sequestration full payment of tax refunds of 35% of interest under their BABs, by characterizing payments as “overpayment” of taxes or as “obligated funds,” since payments to bond issuers were funded through statute that was subject to sequestration with respect to tax refunds to issuers of BABs, and government did not obligate funds for life of BABs, as obligation arising from BABs arose not when they were issued but only after IRS timely received and processed government form from issuers, so government’s payment obligation did not extend beyond year processed.

Government was statutorily required to reduce its payment obligations for tax refund of 35% of interest payable to issuers of Direct Payment Build America Bonds (BABs), under American Recovery and Reinvestment Act (ARRA), due to subsequent enactment of Taxpayer Relief Act, imposing sequestration that permanently canceled budgetary resources, including direct spending such as funding for tax refunds to pay issuers of BABs, since spending cuts implemented by later-enacted Taxpayer Relief Act and Budget Control Act were irreconcilable with ARRA’s 35% payment rate and reduced government’s payment obligation by sequestration.

Government did not intend to create contract to be bound to pay tax refund of 35% of interest payable to issuers of Direct Payment Build America Bonds (BABs), under American Recovery and Reinvestment Act (ARRA), that did not frame authorized payments under BABs as contractual obligation, but rather, merely set forth payment program for issuers of qualifying BABs.

Issuers of Direct Payment Build America Bonds (BABs) waived any argument based on additional documents to establish existence of contract with United States, where issuers did not plead contract based on those documents in their amended complaint, they did not raise that argument in opposition to government’s motion to dismiss, and they disclaimed that argument at oral argument.




POLITICAL SUBDIVISIONS - NORTH CAROLINA

Southern Environmental Law Center v. North Carolina Railroad Company

Supreme Court of North Carolina - August 13, 2021 - S.E.2d - 2021-NCSC-84 - 2021 WL 3575673

Requester brought action requesting the entry of an order declaring that the North Carolina Railroad Company was an agency of the State of North Carolina for purposes of the Public Records Act, declaring that the records requested from the railroad constituted public records, and ordering the railroad to make those records available for inspection.

After the case was designated a mandatory complex business case, the Superior Court granted railroad’s motion for summary judgment, and requester appealed.

The Supreme Court held that Railroad was not an agency of North Carolina government or a subdivision of such an agency.

North Carolina Railroad Company was not an agency of North Carolina government or a subdivision of such an agency as defined by the Public Records Act, although the State was the Railroad’s sole shareholder and the Railroad enjoyed a number of benefits due to its relationship with the State, where both the General Assembly and other governmental entities consistently treated the Railroad as a private corporation rather than a public agency or subdivision, the State lacked a sufficient degree of control over the day-to-day operations of the Railroad, and the Railroad consistently maintained its separate corporate identity and structure and made decisions independently of any directives that it might receive from governmental officials, and owned its own property and paid taxes to counties and the State.




ZONING & PLANNING - OHIO

State ex rel. Donaldson v. Delaware County Board of Elections

Supreme Court of Ohio - August 26, 2021 - N.E.3d - 2021 WL 3821901 - 2021-Ohio-2943

Relator filed petition for writ of mandamus, seeking to require county board of elections to include referendum on zoning amendment on ballot.

The Supreme Court held that:

Relator lacked adequate remedy in ordinary course of the law, as required for relator to obtain writ of mandamus ordering county board of elections to place referendum relating to zoning amendment on ballot, due to proximity of election, which was approximately two months away.

Referendum petition’s summary of township zoning amendment relating to planned overlay district, which described amendment in general terms and stated that zoning amendment would include sections detailing permitted uses, open spaces, and prohibited uses, and that zoning resolution and map would be amended to designate the planned overlay district area, failed to present issue fairly and accurately to those being asked to sign petition, and thus petition was rendered invalid; summary did not identify location of land being rezoned, and it did not describe proposed zoning changes by indicating current use of property or uses that zoning amendment would permit.

Referendum petition’s reliance on language from township zoning commission’s public-hearing notices and zoning commission’s resolution recommending denial of proposed zoning amendment regarding planned overlay district did not satisfy requirement that zoning amendment, as adopted by township, be fairly and accurately described in petition; notices did not summarize zoning amendment passed by township, but instead informed public of hearings that were scheduled to take place on proposed amendment prior to its enactment, notices were not required to contain summary of proposed zoning amendment, zoning commission’s resolution was recommendation to township, not summary of amendment, and resolution related to previous version of planned overlay district.




BANKRUPTCY - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico.

United States Court of Appeals, First Circuit - August 12, 2021 - 7 F.4th 31

In the jointly administered restructuring cases of the Commonwealth of Puerto Rico and various governmental instrumentalities pursuant to Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the Puerto Rico Electric Power Authority (PREPA), PREPA’s fiscal agent, and the Financial Oversight and Management Board for Puerto Rico (FOMB) moved for entry of order allowing administrative expense claim for the costs of certain “front-end transition services” that private consortium with which PREPA had contracted to assume control over PREPA’s power transmission and distribution system (T&D system) had agreed to perform.

Creditors objected. The United States District Court for the District of Puerto Rico granted motion in part and denied it in part. Creditors appealed.

The Court of Appeals held that:

Subsection of the Bankruptcy Code providing administrative expense priority for the actual, necessary costs and expenses of preserving the estate applies in cases under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA); Congress incorporated the entirety of the Code’s administrative expense section into PROMESA, such that each provision of that section must be given effect, and though there is no “estate” to preserve in Title III proceedings, reading “estate” in the context of the administrative expense provision to mean “property of the debtor” is sensible in light of the text and structure of Title III and the Code.

In case under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the Title III court did not abuse its discretion in finding that “front-end transition services” which private consortium with which the Puerto Rico Electric Power Authority (PREPA) had contracted to assume control over PREPA’s power transmission and distribution system (T&D system) had agreed to perform satisfied the requirements for administrative expense treatment; the court correctly recognized that burden was on movants to show that payments at issue qualified to administrative expense priority, the court permissibly credited declaration submitted by movants indicating that services in question were necessary prerequisites to private consortium assuming control over the T&D system and so were beneficial to PREPA, and objectors did not provide any contrary factual evidence that services did not benefit PREPA.

In case under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the Title III court correctly determined that it was not authorized to review challenges to decision of the Financial Oversight and Management Board for Puerto Rico (FOMB) to certify a fiscal plan and budget for the Puerto Rico Electric Power Authority (PREPA) that included fees for certain “front-end transition services” that private consortium with which PREPA had contracted to assume control over PREPA’s power transmission and distribution system (T&D system) had agreed to perform; PROMESA insulated FOMB’s certification determinations from judicial review in the federal courts.

In case under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), appellants’ argument that the Title III court’s interpretation of the PROMESA provision insulating decisions of the Financial Oversight and Management Board for Puerto Rico (FOMB) from judicial review violates the nondelegation doctrine was waived where appellants never raised the issue before the Title III court, and no exceptional circumstances warranted consideration of the argument for the first time on appeal.




IMMUNITY - CONNECTICUT

Doe v. Town of Madison

Supreme Court of Connecticut - July 30, 2021 - A.3d - 2021 WL 3281024

Three public high school students who were sexually abused by high school teacher brought separate action against town, town school board, police officer assigned as school resource officer, and high school principal.

Actions were consolidated. The Superior Court granted summary judgment in favor of defendants. Students appealed.

The Supreme Court held that:




INSURANCE - ILLINOIS

Netherlands Insurance Company v. Macomb Community Unit School District No. 185

United States Court of Appeals, Seventh Circuit - August 6, 2021 - F.4th - 2021 WL 3464356

Insurers brought action seeking declaration of their rights and obligations under school district’s general commercial liability insurance policy after district settled female students’ action alleging that it had failed to prevent and inappropriately responded to sexual misconduct by male student.

The United States District Court for the Central District of Illinois entered judgment on pleadings in district’s favor, and insurers appealed.

The Court of Appeals held that student’s sexual misconduct fell within scope of policy provision excluding coverage for “[a]ny sexual misconduct” of “any person.”

Under Illinois law, male student’s sexual misconduct towards female students unambiguously fell within scope of provision of school district’s general commercial liability insurance policy excluding coverage for “[a]ny sexual misconduct” of “any person,” despite district’s contention that it excluded coverage only for sexual misconduct by school employee.




PUBLIC PENSIONS - MARYLAND

Cherry v. Mayor and City Council of Baltimore City

Court of Appeals of Maryland - August 16, 2021 - A.3d - 2021 WL 3611768

Police officers and firefighters filed class action lawsuit against Mayor and City Council of Baltimore, alleging claims for declaratory relief and breach of contract.

The Circuit Court certified class of plaintiffs and three sub-classes and ruled that city did not breach its contract with sub-class of active employees, but it did breach its contract with retired and retirement-eligible sub-classes and awarded more than $30 million in damages to them.

Police officers’ and firefighters’ petition for writ of certiorari was granted.

The Court of Appeals held that:

City did not breach its contract with pension plan members by underfunding plan, since plan did not require city to “fully fund” retiree reserves and provision governing calculation of city’s annual contribution to fund contemplated possibility of either underfunding or overfunding of plan.

City, by way of ordinance that retrospectively divested benefits belonging to those pension plan members by replacing market-driven post-retirement cost-of-living adjustment feature with tiered cost-of-living adjustment, breached its contract with retired police officers and firefighters and retirement-eligible police officers and firefighters by unlawfully withdrawing or removing previously earned and accrued benefit entitlements.

City had authority to make reasonable prospective modifications to pension plan, provided they were reasonable and necessary, notwithstanding provision that contractual relationship existed between plan members and city and benefits provided under plan thereafter could not be diminished or impaired in any way, since benefits set forth in plan did not vest until members reached service retirement eligibility and provision did not eviscerate city’s reserved power to make such reasonable and necessary prospective changes to plan.

Ordinance retrospectively divesting benefits belonging to public pension plan members by replacing market-driven post-retirement cost-of-living adjustment feature with tiered cost-of-living adjustment was reasonable and necessary, and therefore it did not violate Contract Clause, since ordinance was reasonably intended to preserve integrity of plan, changes to plan, as they affected active members, were reasonable changes promoting paramount interest of city without serious detriment to employee, active member employees received substantially plan for which they bargained, and to extent any benefits were lessened or other terms became more onerous, those changes were balanced by combination of overwhelming public welfare considerations and new benefits or qualifying conditions.

Circuit court correctly declined to order specific performance, i.e., reinstitution of variable benefit for retired and retirement-eligible police officers and firefighters, and calculated damages owed to retired and retirement-eligible police officers and firefighters from ordinance retrospectively divesting benefits belonging to public pension plan members by replacing market-driven post-retirement cost-of-living adjustment feature with tiered cost-of-living adjustment (COLA) by assessing how retired and retirement-eligible members would have fared if, hypothetically, city had retained variable benefit for them but made prospective changes to plan for members whose rights to benefits had not yet vested, since retired and retirement eligible were “closed” from changes but city was permitted to apply new COLA to active members.




VARIABLE RATE BONDS - MASSACHUSETTS

Rosenberg v. JPMorgan Chase & Co.

Supreme Judicial Court of Massachusetts - May 11, 2021 - 487 Mass. 403 - 169 N.E.3d 445

Relator filed complaint under Massachusetts False Claims Act (MFCA) against financial institutions that served as remarketing agents for Commonwealth on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, based on allegations that agents fraudulently inflated interest rates on bonds, in breach of agents’ obligations in remarketing agreements determine lowest interest rate that would permit sale of bonds on any given rate determination date.

The Superior Court Department granted agents’ motion to dismiss and relator appealed.

On transfer from Appeals Court, the Supreme Judicial Court held that:

Remarketing agents alleged misrepresentations that they would comply with their obligations to Commonwealth to determine applicable rate of interest on long-term, tax-exempt, variable rate bonds that financed long-term public projects and infrastructure that, in their judgment, was lowest rate that would permit sale of bonds bearing interest at applicable interest rate at par plus accrued interest as of applicable rate determination date, was in public domain, for purposes of “public disclosure” bar to qui tam action against agents under Massachusetts False Claims Act (MFCA), where representations were set forth in agreements with Commonwealth, in Municipal Securities Rulemaking Board (MSRB) rules that addressed agents’ duties to bond issuers, and in Securities Industry Financial Markets Association (SIFMA) model disclosures.

Purportedly true state of remarketing agents’ fraud in setting artificially high interest rates on long-term tax-exempt variable rate bonds to finance long-term public projects or infrastructure, when they represented to Commonwealth that they would comply with their obligations as remarketing agents to determine lowest interest rate that would permit sale of bonds on given rate determination date, were in public domain, for purposes “public disclosure” bar to qui tam action against agents under Massachusetts False Claims Act (MFCA); relator’s assertion that agents were not obtaining lowest rates was available to public on Internet, specifically, website that publishes information on all municipal bonds, and relator used same data from website on Internet to conclude that agents were not setting lowest rates on bonds.

Remarketing agreements with Commonwealth, in which remarketing agents purportedly misrepresented state of facts that they would comply with their obligations to Commonwealth to determine applicable rate of interest on long-term, tax-exempt, variable rate bonds that financed long-term public projects and infrastructure that, in their judgment, was lowest rate that would permit sale of bonds bearing interest at applicable interest rate at par plus accrued interest as of applicable rate determination date, constituted “reports,” and thus were statutory source of previously disclosed information, for purposes of “public disclosure” bar to qui tam action against agents, under Massachusetts False Claims Act (MFCA).

Internet website that published information on all municipal bonds constituted “news media,” and thus, was statutory source of prior disclosure of purportedly true state of remarketing agents’ alleged fraud in setting artificially high interest rates on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, when agents represented to Commonwealth in remarketing agreements that they would comply with their obligations to determine lowest interest rate that would permit sale of bonds on given rate determination date, for purposes of public disclosure bar to qui tam action under Massachusetts False Claims Act (MFCA).

Relator’s allegations in qui tam complaint against remarketing agents, relating to agents’ purportedly fraudulent scheme to artificially inflate interest rates on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, when agents represented to Commonwealth in remarketing agreements that they would comply with their obligations to determine lowest interest rate that would permit sale of bonds on any given rate determination date, were substantially same as misrepresentations and true state of facts that were previously disclosed to public, such that publicly disclosed information put Commonwealth on trail of alleged fraud without relator’s assistance, and thus, relator’s complaint fell within “public disclosure” bar to qui tam suit under Massachusetts False Claims Act (MFCA).

Relator did not have knowledge independent of that information previously disclosed to public regarding scheme by remarketing agents to artificially inflate interest rates on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, despite agents’ obligations in remarketing agreements with Commonwealth to determine lowest interest rate that would permit sale of bonds on any given rate determination date, and thus, relator was not original source of information, as would bring relator’s complaint under “original source” exception to “public disclosure” bar to suit under Massachusetts False Claims Act (MFCA); Internet website that published information about municipal bonds publicly reported same data upon which relator relied, and relator’s analysis depended entirely on interest rate data, which were available on website.

Relator did not materially add to previously disclosed fraudulent scheme by remarketing agents to artificially inflate interest rates on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, in breach of agents’ obligations in remarketing agreements with Commonwealth to determine lowest interest rate that would permit sale of bonds on any given rate determination date, and thus, relator was not “original source” of information, as would bring his qui tam complaint within “original source” exception to “public disclosure” bar to suit under Massachusetts False Claims Act (MFCA), despite relator’s claim that his investigation revealed robo-resetting scheme for resetting interest rates; salient information was that agents promised they would reset rates individually and failed to do so, and manner in which they conducted the fraud — purportedly in order to discourage holders of bonds from selling those bonds — was detail that would not influence behavior of someone already armed with knowledge of salient elements of fraud.

Relator’s assertion of collusion between remarketing agents to artificially inflate interest rates on long-term tax-exempt variable rate bonds that financed long-term public projects or infrastructure, in breach of agents’ obligations in remarketing agreements with Commonwealth to determine lowest interest rate that would permit sale of bonds on any given rate determination date, did not materially add to information previously publicly disclosed, and thus, relator was not “original source” of knowledge of scheme, as required for relator’s complaint to come within “original source” exception to “public disclosure” bar to qui tam suit under Massachusetts False Claims Act (MFCA); complaint simply alleged that agents must have colluded in order for interest rates to have changed as they did, and only additional information beyond this deduction from data contained on website that published information regarding municipal bonds, obtained during single interview, was not relevant to purported fraud, but merely confirmed what relator had already had discerned from data.




POLITICAL SUBDIVISIONS - NEW JERSEY

Ocean County Board of Commissioners v. Attorney General of State of New Jersey

United States Court of Appeals, Third Circuit - August 9, 2021 - F.4th - 2021 WL 3482908

Counties and county agencies filed suits against Attorney General for State of New Jersey, Office of Attorney General, and State of New Jersey, seeking declaration that law enforcement directive, also known as Immigrant Trust Directive, issued by Attorney General to limit ability of counties and local law enforcement to cooperate with federal immigration authorities violated United States Constitution and New Jersey law and was preempted by federal statutes.

Following consolidation of cases, the United States District Court for the District of New Jersey granted defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state claim. Counties and county agencies appealed.

The Court of Appeals held that:

Immigrant Trust Directive, issued by Attorney General for State of New Jersey, limiting ability of counties and local law enforcement to cooperate with federal immigration authorities, was not preempted by federal statutes, barring state entity or official from prohibiting, or in any way restricting, any government entity or official from sharing immigration information with federal authorities, and also providing that no state or local government entity could be prohibited, or in any way restricted, from communicating immigration information to federal government, since statutes regulated state actors, not private actors.




MUNICIPAL ORDINANCE - NORTH DAKOTA

City of Fargo v. Roehrich

Supreme Court of North Dakota - August 5, 2021 - N.W.2d - 2021 WL 3411833 - 2021 ND 145

Defendant was convicted in the District Court of harassment in violation of city ordinance. Defendant appealed.

The Supreme Court held that:

City harassment ordinance criminalizing telephone calls with “no purpose of legitimate communication” was not unconstitutionally vague in violation of due process, although term was not defined by statute; ordinance required the defendant to have the intent to frighten or harass to be found guilty, and the combination of the specific intent element with the required conduct of repeated phone calls or other electronic communication with no legitimate purpose created minimum guidelines for the reasonable police officer, judge, or jury and limited the dangers of arbitrary and discriminatory application, and provided a reasonable person with adequate and fair warning of the prohibited conduct.

City harassment ordinance criminalizing telephone calls with “no purpose of legitimate communication” was not unconstitutionally vague in violation of due process as applied to defendant; while defendant may have initially called city police officers with the purpose of legitimate communication regarding his son’s car accident, he made hundreds of telephone calls to three officers over a period of two years, and many of the calls had no purpose of legitimate communication, and calls were repetitive and included name calling and profanity, allegations the officers were liars or corrupt and did not know how to do their jobs, and other similar statements.

First Amendment did not protect defendant’s conduct in making harassing phone calls to city police officers and did not prevent conviction for violating city harassment ordinance criminalizing telephone calls with “no purpose of legitimate communication,” where defendant made hundreds of telephone calls to three officers, he was told to stop calling numerous times, he was sent a cease and desist letter, and he continued to call the officers after being told to stop, and defendant stated in multiple voicemail messages that he would continue to call the officers until he was charged with harassment.




ZONING & PLANNING - PENNSYLVANIA

Drummond v. Robinson Township

United States Court of Appeals, Third Circuit - August 17, 2021 - F.4th - 2021 WL 3627106

Gun rights organization, gun club, and would-be operator of gun club filed § 1983 action against township and township zoning officer, alleging violation of plaintiffs’ Second Amendment rights by stalling club operator’s zoning application to allegedly zone gun club out of existence, among other claims.

The United States District Court for the Western District of Pennsylvania granted defendants’ motion to dismiss and denied plaintiffs’ motion for preliminary injunction as moot. Plaintiffs appealed. The Court of Appeals affirmed in part, vacated in part, and remanded. On remand, the United States District Court for the Western District of Pennsylvania granted defendants’ motion to dismiss for failure to state a claim. Plaintiffs appealed.
Holdings: The Court of Appeals held that:

Township’s zoning restrictions barring training with common weapons in areas where firearms practice was otherwise permitted and preventing businesses in certain areas from selling guns or range time at a profit lacked historical foundations, as would support heightened scrutiny on facial Second Amendment challenge pursuant to § 1983, even though ordinance shared some features with traditional antecedents of dividing township into districts, excluding firearms purchase and practice from residential areas, and designating certain areas for center-fire practice and commercial ranges.

Township’s zoning ordinance prohibiting commercially-operated gun clubs and forbidding center-fire cartridges, did not ban firearms purchase and practice in township, but rather preserved avenues for citizens to acquire weapons and maintain proficiency in their use, thus implicating intermediate scrutiny, rather than strict scrutiny, on Second Amendment facial challenge pursuant to § 1983; ordinance allowed non-profit gun clubs, allowed citizens to train with forms of ammunition other than center-fire cartridges, and opened two districts to commercial ranges and center-fire rifle training.

Township failed to establish a close fit between challenged zoning ordinance prohibiting commercially-operated gun clubs and forbidding center-fire cartridges and actual public benefits they served of preventing use of powerful ammunition, reducing noise, increasing safety, and moderating intensity of use, and thus township failed to establish that ordinance withstood intermediate scrutiny on § 1983 Second Amendment facial challenge at the motion to dismiss for failure to state a claim stage; there were no parallels for the challenged rules whether in history or in contemporary practice, there was no evidence tying challenged rules to asserted interest, and township neglected to explain why it eschewed more targeted alternatives.

Reassignment to another district judge was unwarranted for § 1983 Second Amendment case challenging township’s zoning ordinance prohibiting commercially-operated gun clubs and forbidding center-fire cartridges; district court did not disregard Court of Appeals’ prior order which directed district court to follow two-step framework for Second Amendment challenges, and which did not direct district court to reach a particular result at either step.




ZONING & PLANNING - UTAH

Croft v. Morgan County

Supreme Court of Utah - August 12, 2021 - P.3d - 2021 WL 3557629 - 2021 UT 46

Residents brought action to challenge county’s rejection of their application to submit an ordinance approving the development of a ski resort community to a referendum.

The Second District Court dismissed the challenge for lack of jurisdiction, and residents appealed.

The Supreme Court held that, as a matter of first impression, residents could not have obtained an extraordinary writ in the Supreme Court, and thus were not required to file a petition for extraordinary writ and properly filed their challenge in the district court.

Residents who sought to challenge county’s rejection of their application to submit an ordinance approving the development of a ski resort community to a referendum could not have obtained an extraordinary writ in the Supreme Court, and thus were not required to file a petition for extraordinary writ and properly filed their challenge in the district court, where construction of the ski resort was not imminent, referendum did not need to be immediately placed on the ballot to avoid the ski resort’s construction, referendum application was not tied to any specific election or other deadline, and, while 18 months had passed since the referendum application was rejected, their alleged injury could still be redressed through a referendum.




PUBLIC RECORDS - WASHINGTON

Bogen v. City of Bremerton

Court of Appeals of Washington, Division 2 - August 10, 2021 - P.3d - 2021 WL 3504603

Citizen brought action against city alleging violation of Public Records Act (PRA).

The Superior Court granted city’s motion to dismiss. Citizen appealed.

The Court of Appeals held that:

One-year statute of limitations on citizen’s Public Records Act (PRA) claim against city began to run on day after city’s final action on citizen’s public records request, rather than on day of city’s final action; “within one year of” language in statute established period of time allowed for judicial review of agency actions, not how to compute that period of time, and “within one year of” time period in statute did not include day of triggering event.

Court of Appeals would defer to Superior Court to award attorney fees in citizen’s action against city alleging violation of Public Records Act (PRA); though citizen prevailed on his appeal of grant of motion to dismiss for failure to state a claim, citizen’s PRA claims had not yet been decided on merits




BROWN ACT - CALIFORNIA

Daly v. San Bernardino County Board of Supervisors

Supreme Court of California - August 9, 2021 - P.3d - 2021 WL 3482924 - 21 Cal. Daily Op. Serv. 8047

Disappointed applicant for seat on Board of Supervisors and civic organization filed petition for writ of mandate, naming county Board of Supervisors and members who had participated in appointment of Board member, with appointed member as real party in interest, seeking judicial determination that initial nomination process violated Brown Act.

The Superior Court granted mandate petition. Board and appointed member appealed. The Court of Appeal denied writ of supersedeas effectuating such automatic stay of enforcement pending Board and appointed member’s appeal on the merits. Board and appointed member filed joint petition for review asking whether superior court’s order should have been automatically stayed as mandatory injunction. Petition for review by Board and appointed member was granted, and judgment and further proceedings below were stayed pending further order.

The Supreme Court held that:

On petition for writ of mandate seeking judicial determination that initial process to nominate applicant for county Board of supervisors position violated Brown Act, superior court order requiring Board to rescind its appointment of applicant as supervisor and instead to seat appointee named by Governor was subject to automatic stay of enforcement pending Board and appointee’s appeal on merits, and Board and appointee were entitled to writ of supersedeas effectuating such stay, since requirement to remove appointee from supervisor position and seat Governor’s replacement plausibly could not be described as merely incidental to other aspects of order.

Quo warranto was available remedy for appointed member of county Board of Supervisors to be immediately excluded from office on claim that nomination process violated Brown Act




BALLOT INITIATIVE - MAINE

Caiazzo v. Secretary of State

Supreme Judicial Court of Maine - July 29, 2021 - A.3d - 2021 WL 3197177 - 2021 ME 42

Voter brought action to challenge Secretary of State’s decision to draft a single ballot question for direct initiative regarding transmission lines.

The Superior Court affirmed, and voter appealed.

The Supreme Judicial Court held that Secretary of State appropriately exercised her discretion when deciding to draft single ballot question.

Supreme Judicial Court of Maine holds that Secretary of State appropriately exercised her discretion when deciding to draft single ballot question for direct initiative proposing “An Act To Require Legislative Approval of Certain Transmission Lines, Require Legislative Approval of Certain Transmission Lines and Facilities and Other Projects on Public Reserved Lands and Prohibit the Construction of Certain Transmission Lines in the Upper Kennebec Region,” as initiated bill presented a set of amendments aimed at a stated, but compound, purpose.




MUNICIPAL CONTRACTS - MARYLAND

Town of Riverdale Park v. Ashkar

Court of Appeals of Maryland - July 15, 2021 - A.3d - 2021 WL 2965001

Palestinian-American principal of towing company brought action against municipality and its personnel, claiming malicious prosecution and intentional discrimination on basis of national origin after he was denied municipal towing contract.

The Circuit Court granted judgment for municipality. Principal appealed. The Court of Special Appeals affirmed in part and reversed in part. Municipality’s petition for writ of certiorari was granted.

The Court of Appeals held that:

Palestinian-American presented sufficient evidence that discrimination against his national origin motivated employment decision by municipality to choose other towing company over his towing company for towing contract, where, among other things, claimant was called “camel jockey” by lieutenant colonel on two separate occasions, at least two more indications of discriminatory animus by police department were directed against claimant based on his national origin, police department, and specifically lieutenant colonel, was most important voice in denying claimant’s bid for employment, contract was given to other towing company on basis that it was on law enforcement towing list but list was never mentioned as necessary qualification prior to granting contract, and municipality passed resolution preferring local vendors, claimant’s company was local vendor, and other towing company was not.




MUNICIPAL CORPORATIONS - NEVADA

Endo Health Solutions, Inc. v. Second Judicial District Court of State in and for County of Washoe

Supreme Court of Nevada - July 29, 2021 - P.3d - 2021 WL 3266732 - 137 Nev. Adv. Op. 39

City brought tort action against manufacturers and distributors of prescription opioid medications to recover damages as a result of the opioid epidemic allegedly caused by defendants, and alleging public nuisance, common law public nuisance, negligence, and unjust enrichment.

The District Court denied in part defendants’ motion to dismiss. Defendants petitioned for writ of mandamus.

The Supreme Court held that District Court’s failure to strictly apply statutory definition of “matter of local concern” as set forth in modified Dillon’s Rule warranted writ of mandamus.




IMMUNITY - NEW JERSEY

Gonzalez by Gonzalez v. City of Jersey City

Supreme Court of New Jersey - August 4, 2021 - A.3d - 2021 WL 3376907

Estate brought negligence action against police officers, city, and police department, arising out of motorist’s death from being struck by a car on a highway bridge where officers allegedly left him after responding to his one-vehicle accident that left his vehicle inoperable.

The Superior CourT granted summary judgment in favor of defendants. Estate appealed. The Superior Court reversed. Defendants’ petition for certification was granted.

The Supreme Court held that:




PUBLIC INTEREST PRIVILEGE - NEW YORK

Comptroller of City of New York v. City of New York

Supreme Court, Appellate Division, First Department, New York - August 12, 2021 - N.Y.S.3d - 2021 WL 3555807 - 2021 N.Y. Slip Op. 04685

Comptroller brought proceeding against city for an order compelling city to fully comply with subpoena comptroller issued after city failed to produce documents requested by comptroller in investigation under city charter regarding city’s preparation, planning, and response to the COVID-19 pandemic.

City filed cross petition seeking an order dismissing proceeding and quashing, modifying, or fixing conditions on city’s compliance with subpoena. The Supreme Court, New York County, granted in part and denied in part the petition and cross petition, ordering city to comply with the request for documents but quashing the request for documents relating to communications involving mayor or first deputy mayor, and denying city’s request in cross petition to quash testimonial subpoenas.

The Supreme Court, Appellate Division, held that:

Comptroller’s investigation into city’s preparation, planning, and response to the COVID-19 pandemic did not exceed his authority under city charter; charter gave comptroller power to audit and investigate all matters relating to or affecting the finances of the city and to issue subpoenas, and although investigation into city’s pandemic response was not strictly targeted to finding out how the response affected city finances, charter provided comptroller with broad investigative authority of matters that affected city finances and did not strictly limit investigations to only fiscal matters, and investigation addressed the impact of the city’s response to the pandemic on the city’s finances.

The public interest in protecting the mayor’s and first deputy mayor’s predecisional and deliberative communications outweighed the public interest in allowing comptroller to review and possibly publish those communications as part of his investigation into city’s response to COVID-19 pandemic, and thus, public interest privilege applied to such communications; given the ongoing threat of the pandemic, mayor and leadership team needed access to information and advice from all sources, which required that the sources had some assurance that their advice would remain confidential and free from fear of reprisal, and public disclosure of confidential communications could chill future deliberations about pressing matters, potentially to the public’s harm.




MUNICIPAL ORDINANCE - WASHINGTON

City of Seattle v. Long

Supreme Court of Washington - August 12, 2021 - P.3d - 2021 WL 3556950

Truck owner sought review of municipal court order requiring him to reimburse city $547.12 for impoundment costs via payment plan of $50 per month, for truck that served as owner’s home and that was impounded for violation of city’s 72-hour parking ordinance.

The Superior Court affirmed in part and reversed part. City petitioned for discretionary review, and owner cross-petitioned. The Court of Appeals affirmed in part and reversed in part. Parties sought further review.

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

Truck that served as owner’s home and that was impounded by city for parking infraction automatically qualified as a homestead without need for owner to file a declaration.

Truck owner’s homestead claim seeking shield against attachment, execution, or forced sale of his truck that served as his home and that was impounded by city for parking infraction was premature, where city did not seek to collect on owner’s debt in the form of impoundment costs for which magistrate set up payment plan to reimburse city.

City’s impoundment of truck for parking infraction and $547.12 payment plan of $50 per month for impoundment costs were unconstitutionally excessive for truck owner who used truck as residence, where nature of offense was a civil parking infraction that carried a $44 fine, city suspended enforcement of the 72-hour parking violation during COVID-19 pandemic signaling that city viewed violation as a relatively minor offense, there was no evidence that the infraction was related to any other criminal activity, truck was not parked in residential area or area of hot demand for city vehicles, owner made at most $700 per month, owner was attempting to save for apartment to move himself out of homelessness, and owner could not access his tools for work as general tradesman during impoundment.

Impoundment of truck for parking infraction after city posted notice of violation of 72-hour parking ordinance did not violate state constitutional provision protecting against unwarranted government intrusions into private affairs, where truck owner told officers his truck was in need of repairs and could not be driven, even though owner used truck as his home and did not have access to it for 21 days.

Impoundment and associated costs for truck that had a parking infraction were partially punitive and thus constituted fines under excessive fines clause, even though owner retrieved truck and costs were intended to reimburse city for towing and storage fees, where costs were imposed only as a result of the impoundment, which city code characterized as a penalty.




EASEMENTS - CALIFORNIA

Pear v. City and County of San Francisco

Court of Appeal, Sixth District, California - July 28, 2021 - Cal.Rptr.3d - 2021 WL 3186556 - 21 Cal. Daily Op. Serv. 7667

Grantors’ successors brought action regarding their uses of surface of strip of property deeded to city and county for use for underground water pipes, alleging claims for quiet title, an irrevocable license, declaratory relief, and injunctive relief.

The Superior Court granted summary judgment for city and county. Successors appealed, and the Sixth District Court of Appeal reversed and remanded. Following a court trial, the Superior Court entered judgment for successors on claims to quiet title and for declaratory and injunctive relief, and city and county appealed.

The Court of Appeal held that:




PUBLIC FINANCE - MICHIGAN

Taxpayers for Michigan Constitutional Government v. Department of Technology , Management and Budget

Supreme Court of Michigan - July 28, 2021 - N.W.2d - 2021 WL 3179659

Taxpayer organization brought action against state and state authorities to enforce state constitutional amendment requiring certain percentage of state spending to be apportioned to local government.

The Court of Appeals granted mandamus relief for organization, and the matter then came before the Court of Appeals again on motion for reconsideration. The Court of Appeals granted summary judgment in part and denied it in part for both parties. Parties’ applications for leave to appeal were granted.

The Supreme Court held that:

Under the Headlee Amendment requiring certain percentage of state spending to be apportioned to local government, neither specific individual units of local government nor classes of units of local government are entitled to the same proportion of the allotment for units of local government as they received in 1978–1979.

“Proposal A” payments from state sales and use tax that state directed to school districts, and state spending for state-mandated local services and activities, had to be counted as part of total state spending paid to units of local government for purposes of Headlee Amendment requiring certain percentage of state spending to be apportioned to local government.

Public school academies (PSAs) were not “school districts” as that term was used in Headlee Amendment which requires certain percentage of state spending to be apportioned to local government; although legislature authorized creation of PSAs and treated them as school districts for specific purpose of receiving aid from State School Aid Fund, PSAs were organized as nonprofit corporations by person or other entity, PSAs were not limited to defined local geographic area, governing body of PSA was made up of board of directors comprised of privately selected members, board of directors of PSA could enter into contract with education-management corporation to manage or operate PSA or to provide PSA with instructional or other services, and PSA was funded solely by state and may not levy taxes.

State funding provided to units of local government had to be counted for purposes of “total state spending paid to all units of Local Government” under Headlee Amendment which required certain percentage of state spending to be apportioned to local government to honor voters’ intent neither to freeze legislative discretion to enact necessary and desirable legislation in response to changing times and conditions nor to permit state government unrestricted discretion in its allocation of support for mandated activities and services; state funding to unit of local government was state funding to unit of local government, whether that funding was tied to state mandate or was unrestricted aid for discretionary spending.




STANDING - NEW HAMPSHIRE

Carrigan v. New Hampshire Department of Health and Human Services

Supreme Court of New Hampshire - July 20, 2021 - A.3d - 2021 WL 3044342

Taxpayer-resident brought declaratory judgment action against Department of Health and Human Services and its Commissioner, alleging that they were failing to meet their statutory and constitutional duties with respect to abused and neglected children as a result of their “irresponsible” spending decisions.

The Superior Court dismissed for lack of standing. Taxpayer-resident appealed.

The Supreme Court held that taxpayer-resident lacked standing under state constitutional provision allowing declaratory judgment actions challenging unlawful spending of public funds.

State constitutional provision allowing declaratory judgment actions by taxpayer-residents challenging governmental action involving unlawful spending of public funds does not provide the judiciary with the authority to decide whether the State or a local government has invested sufficient resources to address alleged shortcomings or has properly funded the agencies with responsibility for abiding by the legal requirements enacted by the legislature at levels that facilitate legal functioning.

Taxpayer-resident lacked standing, under state constitutional provision allowing declaratory judgment actions by taxpayer-residents challenging governmental action involving unlawful spending of public funds, against Department of Health and Human Services and its Commissioner alleging that they were failing to meet their statutory and constitutional duties with respect to abused and neglected children as a result of their “irresponsible” spending policies involving poor allocation of resources, where taxpayer-resident failed to challenge any specific spending action or spending approval by Department.




MUNICIPAL ORDINANCE - NORTH DAKOTA

Smith v. Isakson

Supreme Court of North Dakota - July 22, 2021 - N.W.2d - 2021 WL 3083472 - 2021 ND 131

Defendant convicted, following bench trial, of violating city ordinance prohibiting the sale of merchandise on public grounds without a permit filed a pro se petition for writ of supervision, alleging violation of his right to jury trial.

The Supreme Court held that:

Defendant charged with violating city ordinance prohibiting the sale of merchandise on public grounds without permit was not entitled to jury trial under the Sixth Amendment, since the offense was characterized as infraction, and carried a maximum potential fine of $1000, without any possible prison term.

Defendant charged with violating city ordinance prohibiting the sale of merchandise on public grounds without permit was entitled to jury trial under North Dakota constitution; when North Dakota constitution was adopted in 1889, laws permitted cities to comprehensively regulate sales in public places, and jury trial was guaranteed for violation of such laws because potential penalties included incarceration for up to three months and fines of up to $100, and constitution extended right to jury trial to all crimes for which the right was preserved when constitution was adopted.




IMMUNITY - OREGON

Sherman v. State by and through Department of Human Services

Supreme Court of Oregon, En Banc - July 29, 2021 - P.3d - 368 Or. 403 - 2021 WL 3204726

Former foster child brought action against Department of Human Services, alleging that the Department failed to protect her from abuse while she was a child in foster care by negligently certifying her foster parents and failing to appropriately investigate and respond to alleged abuse, and also alleging violation of the Vulnerable Person Act.

The Circuit Court granted Department’s motion to dismiss, ruling that claims were time-barred by the statute of ultimate repose. Former foster child appealed. The Court of Appeals reversed and remanded, and Department appealed.

The Supreme Court, en banc, held that:




EMINENT DOMAIN - SOUTH CAROLINA

Ray v. City of Rock Hill

Supreme Court of South Carolina - August 4, 2021 - S.E.2d - 2021 WL 3378945

Landowner brought action against city for trespass and inverse condemnation arising from city’s piping stormwater under her house.

The Circuit Court granted summary for city on inverse condemnation claim, after which the Circuit Court directed a verdict for city on trespass claim. Landowner appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. City petitioned for writ of certiorari, which was granted.

The Supreme Court held that:

Genuine issues of material fact existed as to whether city’s reconnection of three city pipes to stormwater catch basin, which allowed water to resume flowing through pipe under landowner’s house, was an affirmative, positive, aggressive act by city resulting in damage to landowner’s property, precluding summary judgment on landowner’s inverse condemnation claim.

Landowner’s right of action against city for inverse condemnation was limited to three years from date she discovered, or by exercise of reasonable diligence should have discovered, she might have had a claim against city for city’s piping stormwater under her house.




PUBLIC UTILITIES - TEXAS

Quadvest, L.P. v. San Jacinto River Authority

United States Court of Appeals, Fifth Circuit - August 3, 2021 - F.4th - 2021 WL 3362470

Investor-owned water utilities brought action against San Jacinto River Authority (SJRA), state entity, alleging that SJRA violated Sherman Act when it entered into and enforced contracts relating to purchase of wholesale water in Montgomery County, Texas.

The United States District Court for the Southern District of Texas denied SJRA’s motion to dismiss based upon state-action immunity. SJRA filed interlocutory appeal.

The Court of Appeals held that:

San Jacinto River Authority (SJRA) invoked state-action immunity as state entity, in action brought by investor-owned water utilities alleging that SJRA violated Sherman Act when it entered into and enforced contracts relating to purchase of wholesale water in Montgomery County, Texas, and therefore interlocutory appeal of denial SJRA’s motion to dismiss based upon state-action immunity was proper, since SJRA was active participant in market over which it purportedly exerted anticompetitive control.

Texas Legislature did not authorize entry of San Jacinto River Authority (SJRA), as state entity, into, and enforcement of, challenged provisions of groundwater reduction plan (GRP) contract with intent to displace competition in market for wholesale raw water in Montgomery County, Texas, and therefore SJRA was not entitled to state-action immunity at pleading stage of action brought by investor-owned water utilities alleging that SJRA violated Sherman Act, since statutory authority to sell surface water would not inherently, logically, or ordinarily result in displacement of competition in market for allegedly cheaper, plentiful groundwater.




EMINENT DOMAIN - COLORADO

North Mill Street, LLC v. City of Aspen

United States Court of Appeals, Tenth Circuit - July 27, 2021 - F.4th - 2021 WL 3163952

Property owner, whose property was located within area of city zoned for industrial use, brought action against city after council adopted ordinance that removed free-market residential units as permitted conditional use within such zoning district and refused to rezone property to mixed use zoning district, seeking declaratory judgment that ordinance was invalid and unenforceable and injunction against enforcing ordinance, and alleging, inter alia, a § 1983 regulatory takings claim under the Fifth Amendment.

The United States District Court granted defendants’ motion to dismiss. Property owner appealed.

The Court of Appeals held that:

Finality rule, under which a regulatory takings claim is not ripe until the plaintiff has received a final decision regarding the application of the challenged regulations to the property at issue from the government entity charged with implementing the regulations, is prudential, and not jurisdictional.

Property owner, whose property was located within industrial zone, adequately alleged that it suffered economic injury that was fairly traceable to city’s adoption of ordinance that removed free-market residential (FMR) units as permitted conditional use within property’s zoning district and denial of owner’s rezoning application, so as to satisfy injury-in-fact requirement for Article III standing, and thus owner’s claims were constitutionally ripe for review, for purposes of claims against city alleging, inter alia, § 1983 regulatory takings claim under the Fifth Amendment; owner alleged that ordinance made it more difficult to find suitable tenants, and that it was not able to build FMR units unless it pursued planned development application for a variance.

City retained discretion to approve free-market residential unit (FMR) development on property owner’s property, which was zoned for industrial use, through the planned development application process, supporting determination that city’s decision was not final, so as for claims to not be prudentially ripe for review, for purposes of claims against city alleging, inter alia, § 1983 regulatory takings claim under the Fifth Amendment; city retained discretion to approve a use variation from the zoning regulations through the planned development application process, and city was merely required to consider earlier findings made in course of rezoning application in considering such a variance.

It was not reasonably certain that city would deny property owner’s application for variance from zoning regulations through the planned development application process, in order to permit free-market residential unit (FMR) development on property zoned for industrial use, supporting determination that city’s decision was not final, and thus claims were not prudentially ripe for review, for purposes of claims against city alleging, inter alia, § 1983 regulatory takings claim under the Fifth Amendment; relevant zoning ordinance did not definitively determine type of development permitted on property specifically, and owner had only submitted an application for re-zoning as opposed to variance.




ZONING & PLANNING - MAINE

Hill v. Town of Wells

Supreme Judicial Court of Maine - July 13, 2021 - A.3d - 2021 WL 2932349 - 2021 ME 38

Property owner sought judicial review of the decision of town’s zoning board of appeals (ZBA) denying his request for setback variances.

The Superior Court rejected ZBA’s denial of the variances. Abutting landowner, as intervenor, appealed.

The Supreme Judicial Court held that:




BALLOT INITIATIVES - OHIO

State ex rel. Schmitt v. Bridgeport

Supreme Court of Ohio - August 3, 2021 - N.E.3d - 2021 WL 3376105 - 2021-Ohio-2664

Initiative proponent sought a writ of mandamus to compel village clerk to certify to the elections board the sufficiency and validity of an initiative petition, or to compel the elections board to place the initiative on the November ballot.

The Supreme Court held that initiative proponent failed to comply with the requirement that he file a signed initiative petition with the village clerk.

Initiative proponent failed to comply with the requirement that he file a signed initiative petition with the village clerk, and thus he was not entitled to mandamus relief compelling village clerk to certify to the elections board the sufficiency and validity of the initiative petition, or compelling the elections board to place the initiative on the November ballot; proponent attempted to file the petition with mayor and unpaid volunteer clerk in the mayor’s office, however statute required proponent to file the initiative petition with the village clerk, whose duties had been consolidated with the village treasurer into an appointed position called “fiscal officer,” and proponent never attempted to file initiative petition with fiscal officer.




PUBLIC MEETINGS - OHIO

Ison v. Madison Local School District Board of Education

United States Court of Appeals, Sixth Circuit - July 7, 2021 - 3 F.4th 887

Four attendees of school board meetings, who were interrupted or prevented from speaking for failing to comply with board’s public participation policy, filed § 1983 action asserting that board’s policy violated First Amendment facially and as applied to them, and they sought compensatory damages, declaratory relief, and an injunction.

The United States District Court for the Southern District of Ohio granted summary judgment in favor of board. Attendees appealed.

The Court of Appeals held that:




PROCUREMENT - PENNSYLVANIA

U.S. Venture, Inc. v. Commonwealth

Supreme Court of Pennsylvania - July 21, 2021 - A.3d - 2021 WL 3073379

Distributor of fuel products petitioned for review of Board of Claims’ order, No. 4180, dismissing distributor’s contractual claims arising out of Commonwealth’s nonpayment of two alternative and clean energy (ACE) grants that distributor obtained to add compressed natural gas fuel pumps to existing fuel stations.

The Commonwealth Court affirmed. Distributor petitioned for allowance of appeal, which was granted.

The Supreme Court held that ACE grants were “grants” that were not subject to limited waiver of sovereign immunity under Procurement Code.

Commonwealth’s award of Alternative and Clean Energy (ACE) grants to fuel products distributor to support distributor’s plans to add compressed natural gas fuel pumps to two existing fuel stations were “grants” that were not subject to limited waiver of sovereign immunity under Procurement Code, and thus Board of Claims did not have jurisdiction to resolve distributor’s contractual claims arising from nonpayment of grants, despite argument that grants were awarded with a primary purpose to procure construction, where Commonwealth had no ownership, control of, or interest in the privately-owned fuel pumps located on privately-owned property, and Commonwealth received nothing from the deals other than advancement of its desire to promote ACE program and reduce harmful emissions.




LIABILITY - WASHINGTON

Norg v. City of Seattle

Court of Appeals of Washington, Division 1 - July 19, 2021 - P.3d - 2021 WL 3030524

Husband and wife filed suit against city, alleging that city was negligent in responding to wife’s 911 call while husband was having heart attack.

City filed motion for summary judgment, and husband and wife filed motion for partial summary judgment. The Superior Court granted husband and wife’s motion and struck city’s public duty doctrine defense. City appealed.

The Court of Appeals held that public duty doctrine did not apply to bar husband and wife’s claim.

City’s duty to respond to 911 call was not public duty owed to general public at large but was instead common law duty to exercise reasonable care in providing emergency medical services, and therefore public duty doctrine did not apply to bar claims brought by husband and wife alleging that city was negligent in responding to wife’s 911 call while husband was having heart attack.




PUBLIC UTILITIES - CALIFORNIA

BullsEye Telecom, Inc. v. California Public Utilities Commission

Court of Appeal, First District, Division 5, California - July 6, 2021 - Cal.Rptr.3d - 66 Cal.App.5th 301 - 2021 WL 2801926 - 21 Cal. Daily Op. Serv. 6845

Local carriers filed petitions for writ review of decisions by Public Utilities Commission (PUC), first, finding that local carriers discriminated against long-distance carrier with respect to rates charged for switched access services and, second, denying local carriers’ request for rehearing but modifying earlier decision.

Petitions were consolidated and writ of review was issued.

The Court of Appeal held that:

When granting request for rehearing, statute governing orders of modification did not require Public Utilities Commission (PUC) to follow procedural aspects of regular hearings, including new evidentiary hearing, before modifying and superseding its prior decision that local carriers set discriminatory rates against long-distance carrier; statutes governing proceedings before PUC did not define “rehearing” as equivalent to regular hearing, but, rather, only specified that evidentiary proceedings were required in certain situations, such as on rehearing in expedited complaint procedure for small claims, and local carriers did not demonstrate they were denied opportunity to present evidence in original evidentiary proceeding or that new factual developments required new evidentiary hearing.

Determination by Public Utilities Commission (PUC) that switched access was monopoly bottleneck service, supporting PUC’s conclusion that local carriers imposed discriminatory rates against long-distance carrier, did not constitute novel determination, and, thus, did not violate PUC procedural rules prohibiting retroactive applications of novel regulatory determinations, where PUC had previously recognized, in context of incumbent local exchange carriers prior to adoption of Telecommunications Act of 1996, that switched access was monopoly bottleneck service, and given that PUC’s pre-Act determination turned on nature of services, PUC was not required to state expressly that same analysis would apply to post-Act competitive local carriers before applying that analysis in case at hand.

Determination by Public Utilities Commission (PUC) that switched access service constituted monopoly bottleneck service allowed PUC, on rehearing of long-distance carrier’s claims that local carriers engaged in rate discrimination, to revisit and reject its prior determinations that long-distance carrier was not willing and able to accept terms and conditions of local carriers’ lower-rate contracts with its competitors and that rational basis supported rate difference; PUC’s determination on rehearing, finding that carrier was willing and able to accept terms and conditions of competitors’ contracts and that no rational basis supported rate difference, indicated PUC did not intend reasoning for its prior findings to the contrary to extend to monopoly bottleneck services.

In finding that local carriers failed to submit evidence of any rational basis for discriminating against long-distance carrier with respect to rates for local exchange services, Public Utility Commission (PUC) did not impermissibly shift burden of proving unlawful discrimination to local carriers rather than long-distance carrier, where long-distance carrier had already established that there was no difference in the cost of providing services, such that PUC properly required local carriers to offer other justification for rate differential.

By deviating from scoping memorandum, which gave local carriers reason to believe long-distance carrier’s discrimination claim would fail if long-distance carrier were not willing and able to accept all terms of lower-rate agreements offered to its competitors, Public Utilities Commission (PUC), which held that long-distance carrier’s willingness and ability to accept terms related to switched access services were sufficient, did not prejudice local carriers, where PUC considered all issues described in scoping memorandum and acknowledged that while long-distance carrier was only willing and able to meet terms related to switched access services, such willingness and ability were legally sufficient in context of monopoly bottleneck service.

Holding by Public Utilities Commission (PUC) that costs of service did not constitute rational basis for differential rates set by local carriers for long-distance carrier versus competitors, and that certain other factors were irrelevant to rational-basis analysis, was not contrary to scoping memorandum, even though scoping memorandum gave local carriers reason to believe long-distance carrier’s discrimination claim would fail if there were non-cost-related considerations that supported different treatment, where PUC considered all issues described in scoping memorandum, which did not specify any particular factors that would be considered in rational-basis analysis.

Holding of Public Utilities Commission (PUC) that factors other than cost of services were irrelevant to analysis of whether rational basis existed for local carriers’ setting of higher rates for switched access services with respect to long-distance carrier versus its competitors, in contrast with scoping memorandum that listed non-cost factors as possible rational bases for different rates, did not prejudice local carriers, where local carriers did not identify any evidence they would have presented had they been aware PUC would conclude factors listed in memorandum did not constitute rational bases in light of record, and memorandum did not discourage or prevent local carriers, which did not assert different costs of service supported different rates, from presenting any such evidence.

Statutes prohibiting public utilities from refunding any portion of rates on file with Public Utilities Commission (PUC) and prohibiting discriminatory reparations for discriminatory rates did not preclude PUC from ordering refund to long-distance carrier as reparation for local carriers’ discriminatory offering and provision of off-tariff discounts to certain of long-distance carrier’s competitors; local carriers did not establish that other long-distance customers with similar claims did not have opportunity to file complaint with PUC, as would render reparations discriminatory, refund statute did not prohibit all awards permitted by reparations statute, and refund statute allowed “just and reasonable” refunds as reparations for rate discrimination when justified by special circumstances.




BALLOT INITIATIVE - COLORADO

Matter of Title , Ballot Title and Submission Clause for 2021-2022 #16

Supreme Court of Colorado - June 21, 2021 - P.3d - 2021 WL 2645511 - 2021 CO 55

Initiative opponents petitioned for review of Ballot Title Setting Board decisions in setting title, ballot title, and submission clause for initiative proposing to amend Colorado’s criminal animal cruelty statutes by ending certain exemptions for livestock, creating a safe harbor for the slaughter of livestock with various conditions, and expanding the definition of “sexual act with an animal,” a type of animal cruelty, alleging that initiative spanned multiple subjects in violation of single subject requirement.

The Supreme Court held that:

In determining whether ballot initiative violated single subject rule, central theme of initiative was to extend criminal animal cruelty statutes to livestock; initiative would remove animal cruelty statutes’ exception for accepted animal husbandry practices utilized by any person in the care of companion or livestock animals, end exemption to certain sentencing provisions for treatment of livestock and other animals used in farm or ranch production of food, fiber, or other agricultural products when the treatment is in accordance with accepted agricultural animal husbandry practices, enact a safe harbor for slaughter of livestock from animal cruelty statutes, and expand definition of sexual act with an animal, a type of animal cruelty.

Initiative’s safe harbor amendment to criminal animal cruelty statutes for slaughter of livestock, clarifying that slaughtering livestock would not count as animal cruelty if animals had lived a minimum number of years and they were killed in accordance with accepted animal husbandry practices that did not cause needless suffering, did not violate single subject rule; policy preventing killing of young livestock addressed treatment of living animals, rather than livestock death, risk of logrolling was low because creating safe harbor pointed in the same direction of increasing welfare of livestock and would not have surprised voters, and proposal was not particularly lengthy or complex.

Initiative’s amendment to Colorado’s criminal animal cruelty statutes by expansion of definition of “sexual act with an animal,” a type of animal cruelty, violated single subject rule; provision would have modified standard of care for all animals by criminalizing new conduct, regardless of whether that conduct was directed at livestock or other animals, served at least two distinct and separate purposes, was not necessarily and properly connected to measure’s central focus of incorporating livestock into animal cruelty statutes, and ran risk of surprising voters with a surreptitious change.




IMMUNITY - MISSOURI

Davis v. Buchanan County, Missouri

United States Court of Appeals, Eighth Circuit - July 20, 2021 - F.4th - 2021 WL 3042232

Mother of former inmate at county jail brought wrongful death action against county, member of sheriff’s department, former county jail administrator, and former county sheriff, alleging that defendants had failed during three-day incarceration period to provide appropriate medical care for inmate’s endocrine disorders.

The United States District Court for the Western District of Missouri denied county’s motion to dismiss on immunity grounds and its subsequent motion for reconsideration, on theory that county had waived its sovereign immunity by “purchasing” insurance. County appealed.

The Court of Appeals held that, under Missouri law as predicted, county that entered into an inmate-health-services contract that required third party provider to “procure and maintain” various liability insurance policies and “to name the county as an additional insured,” thereby “purchased” liability insurance.

Under Missouri law as predicted by the Eighth Circuit Court of Appeals, county that entered into an inmate-health-services contract with third party that was to supply health care to inmates at county correctional facility, a contract that, in addition to providing for such health care services, also required the third party to “procure and maintain” various liability insurance policies and “to name the county as an additional insured,” thereby “purchased” liability insurance and waived its sovereign immunity for tort claims covered by that insurance; while county did not make direct payment to liability insurer, its payment of roughly $300,000 per year to third party for services that included the acquisition of liability insurance was in nature of a “purchase” of insurance, as that term was used in Missouri waiver-of-immunity provision.




SPECIAL ASSESSMENTS - NEBRASKA

Main St Properties LLC v. City of Bellevue

Supreme Court of Nebraska - July 16, 2021 - N.W.2d - 309 Neb. 738 - 2021 WL 3008959

Property owner filed petition to appeal city board of equalization decision to place liens on the property in order to collect costs that had been assessed for the demolition and removal of a structure on the property.

The District Court dismissed the petition based on lack of jurisdiction, and property owner appealed.

The Supreme Court held that district court had jurisdiction to consider property owner’s petition.

A “special assessment,” within meaning of statute providing that property owner may appeal “any special assessment” to the district court where the subject property is located includes and applies to a “special assessment” levied under authority of statute providing that a city or village may levy the cost for demolishing or repairing a nuisance as a special assessment.

District court had jurisdiction to consider property owner’s petition challenging special assessment which city levied to recover costs associated with demolishing a nuisance building on the property.




TORT CLAIMS - NEW JERSEY

H.C. Equities, LP v. County of Union

Supreme Court of New Jersey - July 19, 2021 - A.3d - 2021 WL 3027207

Commercial landlord brought action against county and county improvement authority, asserting claims for trade libel, defamation, and conspiracy, related to a report that contained allegedly false statements about condition of buildings it rented to the county, which allegedly thwarted landlord’s settlement with county for a dispute concerning the lease.

The Superior Court dismissed the action. Landlord appealed. The Superior Court, Appellate Division, reversed and remanded with directions. County and authority petitioned for certification, and petition was granted.

The Supreme Court held that:

Commercial landlord’s claims for trade libel and defamation against county improvement authority, and for conspiracy against authority and the county, related to report of the condition of buildings leased to the county which allegedly contained false statements about the properties and allegedly thwarted landlord’s settlement agreement with the county for dispute concerning the lease, accrued, and therefore triggered the notice requirement under the Tort Claims Act, on date on date of landlord’s letter, directed to counsel for the authority, in which landlord stated that it viewed county and authority to be liable for its injuries, and landlord was thereby required to present its claims to the county and authority no later than 90 days from date of the letter.

Commercial landlord’s three letters, sent at different times to different recipients, did not establish substantial compliance with notice requirements of the Tort Claims Act, so as to allow claims for trade libel, defamation, and conspiracy against county and county improvement authority arising from allegedly false statements in report on condition of buildings leased to the county, since the Act clearly required one identifiable date on which the public entity received notice, the letters did not contain sufficient information to alert county and authority of claims landlord would assert, to give them time to investigate and to settle, even if letters were considered together, which would result in prejudice, and landlord provided no reasonable explanation why there was not strict compliance with the Act.




EMINENT DOMAIN - NEW YORK

Gabe Realty Corp. v. City of White Plains Urban Renewal Agency

Supreme Court, Appellate Division, Second Department, New York - June 30, 2021 - N.Y.S.3d - 195 A.D.3d 1020 - 2021 WL 2672758 - 2021 N.Y. Slip Op. 04134

Owners of some parcels of real property within an area to be condemned commenced proceeding seeking judicial review of urban renewal agency’s determination to acquire their properties by eminent domain.

The Supreme Court, Appellate Division, held that authority’s bare pleading of substandard conditions did not satisfy its obligation to provide an adequate basis for eminent domain condemnation of the subject properties.

Urban renewal authority’s bare pleading of substandard conditions did not satisfy its obligation to provide an adequate basis for its conclusion that remediation of urban blight was a sufficient public benefit to support eminent domain condemnation of the subject properties, although the remediation of substandard or insanitary conditions was a proper basis for the exercise of the power of eminent domain, and agency completed a full environmental assessment form pursuant to the State Environmental Quality Review Act; agency relied only on conclusory assertions of blight based on a 25-year-old urban renewal plan that in itself lacked detail or documentation, and the environmental assessment failed to identify relevant areas of environmental concern.




EMINENT DOMAIN - NORTH DAKOTA

City of West Fargo v. McAllister

Supreme Court of North Dakota - July 22, 2021 - N.W.2d - 2021 WL 3083466 - 2021 ND 136

City filed quick-take eminent domain proceeding to acquire right-of-way across landowner’s property for a sewer improvement project.

The District Court entered a condemnation judgment and certified judgment as final. Landowner appealed.

The Supreme Court held that trial court abused its discretion by certifying judgment as final without any analysis.

Trial court abused its discretion by certifying condemnation judgment in quick-take eminent domain proceeding as final, where court provided no analysis of factors for a request for certification, and none of the parties, nor the court, demonstrated how the case was not a standard interlocutory appeal, even though both parties argued that the only issue left to be decided was condemnee’s costs and disbursements.




LEGAL SERVICES - ALABAMA

Fuston, Petway & French, LLP v. Water Works Board of City of Birmingham

Supreme Court of Alabama - June 30, 2021 - So.3d - 2021 WL 2678325

Law firm brought action against client, which was a city water works board, and asserted claims of breach of contract and breach of the covenant of good faith and fair dealing, which arose from board’s vote to terminate contract pursuant to which law firm represented board.

The Circuit Court dismissed the claim of breach of the covenant of good faith and fair dealing and later entered summary judgment for the board on the claim of breach of contract. Law firm appealed.

The Supreme Court held that:

Contractual provision requiring that there be a supermajority in order for city water works board to terminate the three-year contract, pursuant to which a law firm provided legal services to board, was against public policy and therefore invalid.

Contract between law firm and city water works board was for legal services as opposed to nonlegal services, as was relevant to determining if contractual provision requiring that there be a supermajority in order for board to terminate the contract before the end of its three-year duration was against public policy; despite argument that agreement provided that law firm administer board’s purported contract-compliance program, which allegedly would have been a nonlegal service so as to allow law firm to maintain breach-of-contract claim against board for terminating the contract as to the contract-compliance program’s administration, nothing in the record showed that board adopted such a program.




PUBLIC UTILITIES - CALIFORNIA

Save Lafayette Trees v. East Bay Regional Park District

Court of Appeal, First District, Division 3, California - June 30, 2021 - Cal.Rptr.3d - 2021 WL 2677595 - 21 Cal. Daily Op. Serv. 6705

Neighbors and interest group filed an amended petition/complaint seeking to vacate regional park district’s approval of a memorandum of understanding with natural gas utility allowing for the removal of 245 trees from park district land.

The Superior Court sustained defendants’ demurrers without leave to amend and dismissed the lawsuit, and neighbors and interest group appealed.

The Court of Appeal held that:

Tolling agreement between petitioners and regional park district regarding petitioners’ California Environmental Quality Act (CEQA) challenge to district’s approval of a memorandum of understanding with natural gas utility regarding removal of trees on park land was not binding on utility; utility was both a necessary party and an indispensable party without whom the CEQA cause of action could not proceed, and utility, as a named party, was entitled to either assert or waive the statute of limitations defense to the amended petition/complaint.

Date on which 180-day statute of limitations under the California Environmental Quality Act (CEQA) was triggered for petitioners’ challenge to park district’s agreement to allow gas utility to remove 245 trees from park land was date of public hearing at which park district committed to a definite course of action by issuing a resolution authorizing the acceptance of funding from utility for the cost of the tree replacement and maintenance, even if meeting agenda and description of the resolution did not indicate that trees would be removed; memorandum of understanding, executed over the following two days, was consistent with the resolution and the project as outlined in the staff report submitted to the park district’s board of directors.

Statutory exception prohibiting a regional park district from interfering with public property that is either “owned or controlled” by city did not require park district to comply with municipal tree protection ordinance before entering into memorandum of understanding with gas utility to allow gas utility to remove 245 trees from park land within city; rather, exception merely prohibited district from taking control of city parks and recreational facilities, such as a municipal golf course.

Regional park district’s board was not bound by district ordinance providing rules and regulations for the general public’s use of district land, and thus ordinance did not apply to memorandum of understanding between park district and gas utility allowing utility to remove 245 trees from park district land; park district’s administration of district land was subject to separate “Operating Guidelines.”

Actions of regional park district’s board of directors in holding a public hearing, issuing a resolution, and entering into a memorandum of understanding with gas utility allowing utility to remove 245 trees from park district land were all quasi-legislative actions, not quasi-adjudicatory ones, to which constitutional due process rights of notice and hearing were inapplicable; decisions were not limited to a consideration of the interests of nearby property owners, but, rather, board was tasked with considering utility’s request in the context of how the proposed tree removal and replacement and future maintenance operations would impact the park district’s mission, and decision required the board to assess a broad spectrum of community costs and benefits not limited to facts peculiar to the individual case.




IMMUNITY - FLORIDA

Khoury v. Miami-Dade County School Board

United States Court of Appeals, Eleventh Circuit - July 7, 2021 - F.4th - 2021 WL 2817612

Detainee brought § 1983 action against public school board and public school police officers, asserting claims for municipal liability against board and claims against officers for false arrest, excessive force, and First Amendment retaliation.

The United States District Court for the Southern District of Florida entered summary judgment for board and officer. Detainee appealed.

The Court of Appeals held that:

Public school police officer had no arguable probable cause to conclude that detainee was a danger to herself or others as required to involuntarily commit her for a mental health examination under Florida’s Baker Act and thus, he was not entitled to qualified immunity from detainee’s § 1983 false arrest claim, where although detainee had been acting strangely while filming vehicles she believed to be parked illegally and acted irrationally by screaming she was being attacked by the officer, she was not violating the law or harming anyone by filming, nor was she a threat to any of the witnesses.

Genuine issue of material fact as to whether there was a causal connection between public school police officer’s retaliatory actions in involuntarily committing detainee and forcing her to undergo a mental health examination under Florida’s Baker Act in connection with incident related to detainee’s filming of what she believed to be illegally parked cars on school property and the adverse effect on speech precluded summary judgment on detainee’s First Amendment retaliation claim against officer.

Detainee failed to provide sufficient evidence that public school board had a custom or practice of committing people who did not qualify for an involuntary mental health examination pursuant to Florida’s Baker Act and thus, board did not have § 1983 municipal liability for alleged violation of her First and Fourth Amendment rights for public school police officer’s actions in committing her for a mental health examination under the Baker Act in relation to an incident that occurred while she was filming cars she believed to be illegally parked on school property; despite detainee’s allegations of other incidents involving the Baker Act detentions, those incidents were either too remote in time or did not show a constitutional violation.




PUBLIC UTILITIES - HAWAII

Matter of Hawai‘ian Electric Company, Inc.

Supreme Court of Hawai‘i - June 29, 2021 - P.3d - 2021 WL 2660470

Environmental organization sought review of Public Utilities Commission’s (PUC) decision to not re-open its order approving power purchase agreement (PPA) in which electric utility agreed to purchase wind energy generated on proposed wind farm.

The Supreme Court held that:

Supreme Court possessed jurisdiction, at a minimum, to rule on jurisdictional issue raised in environmental organization’s appeal of Public Utilities Commission’s (PUC) decision to not re-open its unappealed order approving power purchase agreement (PPA) between electric utility and wind energy generator following contested case proceeding in which organization was granted participant status, where objector asked Court to consider whether rule governing motions for relief from judgment or order provided authority to re-open PUC’s order due to substantially changed circumstances.

Environmental organization’s request, made via the relief from judgment rule, to re-open Public Utilities Commission’s (PUC) order approving power purchase agreement (PPA) between electric utility and wind energy generator following contested case proceeding in which organization was granted participant status was not an impermissible collateral attack on order, where motion was submitted in same proceeding that generated the order.

Environmental organization was a “person aggrieved” with standing to appeal Public Utilities Commission’s (PUC) decision to not re-open PUC’s unappealed order approving power purchase agreement (PPA) between electric utility and wind energy generator following contested case proceeding in which organization was granted participant status, where organization’s motion for relief from the order was brought within the same proceeding.

Public Utilities Commission (PUC) properly declined to use the relief from judgment rule, which was asserted by environmental organization that had participant status, as a basis to re-open PUC’s order approving power purchase agreement (PPA) between electric utility and wind energy generator in order to address impact of project on greenhouse gas (GHG) emissions, where absence of a GHG emissions analysis was readily apparent in order when it was filed, organization could have timely moved for rehearing or reconsideration of order, and organization also could have timely appealed order.

Any failure of electric utility or wind energy generator to timely obtain an incidental take license (ITL) over Hawai‘ian hoary bat did not void their power purchase agreement (PPA) and Public Utilities Commission’s (PUC) order approving PPA within meaning of the relief from judgment rule, and therefore PUC was not required to re-open its order, via that rule, pursuant to request of environmental organization that had participant status in contested case proceeding; the “voiding” of PPA and PUC’s order that organization sought to prove did not involve defects in jurisdiction or a due process violation.

Blog article from popular science magazine summarizing Department of Energy’s (DOE) report that wind energy prices nationwide had fallen did not provide extraordinary circumstances necessary to re-open Public Utilities Commission’s (PUC) order approving power purchase agreement (PPA) between electric utility and wind energy generator on the basis, under the relief from judgment rule, that it was no longer equitable for order approving higher wind energy prices to have prospective application, where Hawai‘i was excluded from DOE’s report due to unique issues facing wind development in state.




VOTER INITIATIVES - MAINE

Portland Regional Chamber of Commerce v. City of Portland

Supreme Judicial Court of Maine - July 6, 2021 - A.3d - 2021 WL 2795844 - 2021 ME 34

Regional chamber of commerce brought action against city alleging that voter-initiated legislation establishing emergency minimum wage in city violated direct initiative provisions of State Constitution and city’s direct initiative ordinance.

The Superior Court granted summary judgment against chamber. Chamber appealed and intervenors cross-appealed.

The Supreme Judicial Court held that:

Voter-initiated legislation establishing emergency minimum wage in city related to municipal affairs, and therefore it did not violate direct initiative provisions of State Constitution; local minimum wage was among the issues encompassed by municipal legislative authority.

Voter-initiated legislation establishing emergency minimum wage in city related to municipal affairs, and therefore it did not violate city’s direct initiative ordinance; local minimum wage was among the issues encompassed by municipal legislative authority, and direct initiative ordinance was a predominantly procedural provision that merely facilitated the substantive law and that could evolve separate and apart from the procedure.

Effective date of voter-initiated legislation establishing emergency minimum wage in city was date that new minimum wage rate came into effect, where legislation did not explicitly state an effective date for emergency minimum wage provision and emergency provision cross-referenced another section to establish the effective minimum wage rate for purposes of computing emergency minimum wage.




CIVIL ASSESSMENTS - MARYLAND

Angel Enterprises Limited Partnership v. Talbot County

Court of Appeals of Maryland - July 9, 2021 - A.3d - 2021 WL 2885857

Following administrative proceeding arising from imposition of civil penalty on landowners for their violations of county code, county filed petition for judicial review of decision of county board of appeals, which determined that daily accrual of fines was stayed during pendency of administrative appeal.

The Circuit Court reversed in part. Landowners appealed. The Court of Special Appeals affirmed in part and vacated in part. Landowners filed petition for writ of certiorari.

The Court of Appeals held that:

The jurisdiction conferred upon a local board of appeals by Express Powers Act does not include original jurisdiction or administrative adjudicatory review of civil fines or penalties or other civil assessments.

Civil assessments issued by county compliance officer on landowners for violations of county code associated with clearing of trees and building of driveway were not “adjudicatory orders” over which county, a charter county, could confer jurisdiction upon its board of appeals pursuant to Express Power Act; assessments did not command landowners to take a specific action but rather purported to enforce abatement orders by imposing daily civil penalty until such time as landowners complied with separately-issued orders.




MUNICIPAL ORDINANCE - MISSOURI

Langford v. City of St. Louis, Missouri

United States Court of Appeals, Eighth Circuit - July 6, 2021 - F.4th - 2021 WL 2793564

Protestor brought action against city, seeking injunctive and declaratory relief and alleging that ordinance prohibiting obstructing or delaying movement of pedestrian or vehicular traffic violated her free speech rights, was overbroad as applied to her and facially, and was void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment.

Both sides moved for summary judgment. The United States District Court for the Eastern District of Missouri granted protestor’s motion and denied the city’s cross-motion, and the city appealed.

The Court of Appeals held that:

Municipal ordinance that prohibited any person from “position[ing]” himself or herself “in such a manner as to obstruct the reasonable movement of vehicular or pedestrian traffic” was not, on its face, unconstitutionally overbroad in violation the free speech rights of protestor who, upon returning from public march down the same street over which she had previously traveled, refused to obey the directions of police officers who were attempting to clear the street after the conclusion of the march, who had directed her to move from the street to the sidewalk; ordinance was not addressed to speech, but to conduct, and furthered the city’s legitimate interest in ensuring the free and orderly flow of traffic on its streets and sidewalks.

Municipal ordinance that prohibited any person from “position[ing]” himself or herself “in such a manner as to obstruct the reasonable movement of vehicular or pedestrian traffic” was not, on its face, unconstitutionally vague in violation the due process rights of protestor who, upon returning from public march down the same street over which she had previously traveled, refused to obey the directions of police officers who were attempting to clear the street, and who had directed her to move from the street to the sidewalk; ordinance used terms that were widely used and well understood, and the mere fact that officers would need to use some degree of judgment in determining whether a person had positioned herself in a manner that obstructed the reasonable flow of traffic did not render the ordinance unconstitutional.

Police officers did not invidiously discriminate against protestor based on her speech, in alleged violation of her First Amendment rights, in arresting her for violating a traffic ordinance that prohibited any person from “position[ing]” himself or herself “in such a manner as to obstruct the reasonable movement of vehicular or pedestrian traffic”; protestor was the only one in group of protestors who, upon returning from public march down the same street that she had previously traveled, ignored the commands of police officers who were attempting to clear the street by moving from the street to the sidewalk.




OPEN MEETINGS - OHIO

State ex rel. Ames v. Portage County Board of Commissioners

Supreme Court of Ohio - July 14, 2021 - N.E.3d - 2021 WL 2944137 - 2021-Ohio-2374

Petitioner filed a mandamus action against county board of commissioners and county solid waste management district (SWMD) commissioners alleging the board violated the Open Meetings Act and the Public Records Act.

The parties filed cross-motions for summary judgment. The Court of Appeals granted the board’s motion and denied petitioner’s motion. Petitioner appealed.

The Supreme Court held that:

Evidence established that solid waste management district (SWMD) was a valid entity created by statute, and thus board of county commissioners did not violate the Open Meetings Act by separately conducting SWMD business during recesses of the board’s regular meetings; statutes expressly authorized a board of county commissioners to create a SWMD, when a board of county commissioners established a SWMD it also served as the district’s board of directors, and the General Assembly defined a SWMD as a political subdivision unto itself, separate from a county, though governed by the board of county commissioners that created it.

A genuine issue of material fact existed as to whether the use of a consent agenda during solid waste management district (SWMD) meetings violated the Open Meetings Act, as the use of a consent effectively closed the SWMD meetings because it prevented members of the public in attendance at the meetings from knowing which resolutions were being approved and hearing any deliberations on those resolutions, precluding summary judgment in mandamus action seeking to compel county board of commissioners to prepare, file, and maintain accurate minutes for SWMD meetings.

Petitioner was entitled to mandamus relief on his claim that the county board of commissioners violated the Open Meetings Act by failing to produce full and accurate minutes from solid waste management district (SWMD) meeting in response to petitioner’s public-records request; the meeting minutes stated a list of expenditures totaling $1,794.42 was “attached hereto as Exhibit ‘A’ and incorporated herein by reference,” and it was undisputed that Exhibit A was not attached to the official minutes prepared by the board’s clerk or included with the documents produced to petitioner in response to his public-records request.




EMINENT DOMAIN - TEXAS

Hidalgo County Water Improvement District No. 3 v. Hidalgo County Water Irrigation District No. 1

Court of Appeals of Texas, Corpus Christi-Edinburg - May 27, 2021 - S.W.3d - 2021 WL 2149828

Water improvement district filed condemnation proceeding against water irrigation district to obtain permanent subterranean easement to install water pipeline through irrigation district’s property.

The County Court at Law granted irrigation district’s plea to the jurisdiction and dismissed for want of subject matter jurisdiction based on governmental immunity. Improvement district appealed.

The Court of Appeals held that:

Condemnation proceeding’s status as quasi in rem action did not deprive water irrigation district of governmental immunity from suit in water improvement district’s action seeking permanent subterranean easement to install water pipeline on irrigation district’s property, even though governmental immunity did not apply to in rem actions under Expedited Declaratory Judgment Act (EDJA); condemnation proceeding, unlike an EDJA action, involved forced transfer of property interest, allowing suit would threaten separation-of-powers principles that underlie immunity by giving trial court control over irrigation district’s choice not to allow improvement district to build pipeline, and governmental entities were immune from a “suit for land,” a class of suits that included condemnation actions.

Statute that granted power to water improvement district to acquire “any land” by condemnation did not clearly and unambiguously waive governmental immunity of irrigation district that owned land over which the improvement district sought, through condemnation action, to obtain permanent subterranean easement to install water pipeline; reference to acquiring “any land” was at most ambiguous, as it could be interpreted, with respect to public land, as general grant of power to condemn such land in the event that a specific waiver of governmental immunity existed, rather than as being a waiver of governmental immunity, statute made sense without finding waiver, and all ambiguities had to be resolved in favor of retaining immunity.




EMINENT DOMAIN - ALABAMA

South Grande View Development Company, Inc. v. City of Alabaster, Alabama

United States Court of Appeals, Eleventh Circuit - June 21, 2021 - F.4th - 2021 WL 2525190

Real estate developer brought § 1983 action alleging that city’s rezoning of parcel owned by developer constituted regulatory taking without just compensation in violation of Fifth Amendment.

Following decisions on motions in limine to exclude certain evidence, the United States District Court for the Northern District of Alabama entered judgment, upon a jury verdict, in favor of developer in the amount of approximately $3.5 million. City appealed.

The Court of Appeals held that:




LIABILITY - GEORGIA

Metropolitan Atlanta Rapid Transit Authority v. Ingram

Court of Appeals of Georgia - June 25, 2021 - S.E.2d - 2021 WL 2621448

Passenger in vehicle that collided with metropolitan transit authority bus brought negligence action against transit authority and bus driver.

Transit authority and bus driver moved to dismiss or, in the alternative, to transfer venue pursuant to Metropolitan Atlanta Rapid Transit Authority (MARTA) Act. The State Court denied motion. Court of Appeals granted motion for interlocutory review brought by transit authority and bus driver.

The Court of Appeals held that transit authority and bus driver were joint tortfeasors.

Metropolitan transit authority and driver of transit authority bus were “joint tortfeasors,” and thus provision of Georgia Constitution that indicated that suits against joint tortfeasors residing in different counties could be tried in either county, and not provision of Metropolitan Atlanta Transit Authority Act (MARTA) that required that any action to enforce suit against transit authority be brought in particular county, applied in action brought by passenger of vehicle that collided with bus against transit authority and bus driver; driver was employee of transit authority acting within scope of employment at time of collision.




SCHOOLS - OHIO

Gabbard v. Madison Local School District Board of Education

Supreme Court of Ohio - June 23, 2021 - N.E.3d - 2021 WL 2557315 - 2021-Ohio-2067

Parents of students filed action against school board and related defendants, seeking permanent injunction precluding school district from implementing resolution allowing authorization of several district employees to carry concealed firearms into school safety zones and seeking declaratory judgment that resolution was unlawful.

The Court of Common Pleas granted school board’s motion for summary judgment. Parents appealed. The Twelfth District Court of Appeals affirmed in part, reversed in part, and remanded. School board filed discretionary appeal, which the Supreme Court accepted.

The Supreme Court held that:

Training-or-experience requirement in statute prohibiting a school from employing a person as a special police officer, security guard, or other position in which such person was armed while on duty unless the person had satisfactorily completed basic peace-officer training or had 20 years of experience as a peace officer applied to school employees, including teachers, administrators, or other staff members, who went armed while on the job, and not only to employees who served in safety or security positions that inherently required employee to be armed; statute did not tie application of training-or-experience requirement to duties of employee’s position, and General Assembly could have expressly limited statute to those employed in police capacity but did not.

Statute criminalizing possession of deadly weapon in school safety zone except by certain categories of people, including persons who acted in accordance with written authorization from board of education, did not permit school board to circumvent statute prohibiting a school from permitting an employee to be armed while on duty unless the person had satisfactorily completed basic peace-officer training or had 20 years of experience as a peace officer; criminal statute addressed only effect of school board’s prior authorization on armed person’s exposure to criminal liability and not circumstances of appropriate authorization, and had General Assembly perceived any conflict in criminal and training-or-experience statutes, it could have addressed it in statutory language.




PUBLIC UTILITIES - OHIO

In re Complaint of Allied Erecting & Dismantling Company, Inc. v. Ohio Edison Company

Supreme Court of Ohio - July 8, 2021 - N.E.3d - 2021 WL 2828917 - 2021-Ohio-2300

After electric company discovered it had failed to read one of the six electric meters at corporation’s facility for three years, and sent corporation a bill for the three year period, corporation filed a complaint.

The Public Utilities Commission ordered corporation to pay the back bill. Corporation appealed.

The Supreme Court held that:




PUBLIC CONTRACTS - WASHINGTON

Conway Construction Company v. City of Puyallup

Supreme Court of Washington - July 8, 2021 - P.3d - 2021 WL 2835360

Construction company brought action against city seeking a declaration that city’s termination for default of parties’ road construction contract was improper and should be converted to a termination for convenience.

The Superior Court found that city’s termination was for convenience and awarded construction company damages, including attorney’s fees. The Court of Appeals affirmed in part and reversed in part. Construction company and city both sought discretionary review, which was granted.

The Supreme Court held that:




EMINENT DOMAIN - FEDERAL

PennEast Pipeline Company, LLC v. New Jersey

Supreme Court of the United States - June 29, 2021 - 141 S.Ct. 2244 - 21 Cal. Daily Op. Serv. 6471

Natural gas company filed actions under Natural Gas Act (NGA) to condemn properties owned by State of New Jersey for construction of interstate gas pipeline.

The United States District Court for the District of New Jersey denied State’s motion to dismiss and granted company’s requests for orders of condemnation and preliminary injunctive relief for immediate access to the properties. State appealed. The United States Court of Appeals for the Third Circuit vacated and remanded. Certiorari was granted.

The Supreme Court held that:

State of New Jersey’s appeal of district court’s grant of natural gas company’s requests for orders condemning state-owned land, pursuant to Natural Gas Act (NGA), to construct interstate gas pipeline was not collateral attack on certificates of public convenience and necessity issued to company by Federal Energy Regulatory Commission (FERC) to build the pipeline, and thus, State’s appeal did not have to be filed in Court of Appeals hearing challenges to FERC’s certificate order, which had exclusive jurisdiction to affirm, modify, or set aside that order; State’s argument on appeal that NGA did not delegate the right to file condemnation actions against nonconsenting States did not seek to modify FERC’s order, but instead asserted a defense against company’s condemnation proceedings.

Natural Gas Act (NGA) provision authorizing natural gas companies that hold certificates of public convenience and necessity from Federal Energy Regulatory Commission (FERC) to acquire, through eminent domain, any right-of-way needed to build natural gas pipeline was passed specifically to solve the problem of States impeding interstate pipeline development by withholding access to their own eminent domain procedures.

Condemnation actions brought under the Natural Gas Act (NGA) provision authorizing natural gas companies, which hold certificates of public convenience and necessity from the Federal Energy Regulatory Commission (FERC) to build an interstate pipeline, to condemn all necessary rights-of-way, including land in which a State holds an interest, do not offend state sovereignty, because the States consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees.




IMMUNITY - GEORGIA

Beasley v. Georgia Department of Corrections

Court of Appeals of Georgia - June 22, 2021 - S.E.2d - 2021 WL 2548838

Citizen and his wife brought action against Georgia Department of Corrections (GDOC), which arose from an incident in which two inmates killed the two corrections officers who were transporting them, confronted citizen, who had stopped his vehicle behind halted prison bus, at gunpoint, and stole his vehicle, alleging that officers created a public nuisance by failing to abide by certain departmental policies in transporting inmates and seeking damages for emotional distress under the Georgia Tort Claims Act (GTCA).

The trial court granted GDOC’s motion to dismiss on sovereign-immunity grounds. Plaintiffs appealed.

The Court of Appeals held that:




ZONING & PLANNING - MISSISSIPPI

Board of Supervisors of Hancock County v. Razz Halili Trust

Supreme Court of Mississippi - June 24, 2021 - So.3d - 2021 WL 2587103

Trust brought action challenging decision by county zoning board to deny trust’s application to use its property as a marina.

The Circuit Court reversed. Board appealed.

The Supreme Court held that:

Zoning board’s denial of trust’s application to use its property as a marina was arbitrary and capricious, despite board’s assertion that trust’s proposed use of property to load and unload shipments of oysters was prohibited based on definition of a “seafood processor” under state licensing statute; marina was allowed as a matter of right in zone where property was located, whether trust’s proposed use of property would classify it as a seafood processor under licensing statute was irrelevant to whether trust was engaged in seafood processing prohibited under local zoning ordinance, and there was no evidence that definition of a marina or prohibited use of seafood processing precluded unloading and loading oysters.

Zoning board’s denial of trust’s application to use its property as a marina was not supported by substantial evidence, despite board’s assertion that trust intended to use property to process seafood, which was a prohibited use in zone where property was located; all evidence presented to board in trust’s application and board meetings indicated that trust was applying to operate a marina as defined by local zoning ordinance, specifically that trust intended to use property to receive shipments of oysters, to unload oysters, to load them into refrigerated trucks, and to ship them out of state, and board was presented with no evidence that trust’s intended use of property constituted a prohibited processing use under ordinance.




EMINENT DOMAIN - NEBRASKA

Sanitary and Improvement District No. 67 of Sarpy County v. Department of Roads

Supreme Court of Nebraska - June 25, 2021 - N.W.2d - 309 Neb. 600 - 2021 WL 2603414

County sanitary and improvement district brought inverse condemnation action against state arising from re-routing of highway.

The District Court dismissed on the pleadings. Sanitary and improvement district appealed.

The Supreme Court held that sanitary and improvement district, a state political subdivision, lacked standing to bring inverse condemnation action against state.

County sanitary and improvement district was not a person having private property, and thus it was not the real party in interest and lacked standing to bring inverse condemnation action against state arising from re-routing of highway.




LAND USE & DEVELOPMENT - OKLAHOMA

Immel v. Tulsa Public Facilities, Authority

Supreme Court of Oklahoma - June 22, 2021 - P.3d - 2021 WL 2548600 - 2021 OK 39

Taxpayers brought action seeking declaratory judgment that city’s public facilities authority and city could not sell 8.8 acres of park land to a prospective private developer for the construction of a commercial shopping center because the land was held in a public trust expressly as a park for the people.

The District Court granted authority’s and city’s motions for summary judgment. Taxpayers appealed.

The Supreme Court held that:

Taxpayers had standing to bring action in equity, rather than qui tam, seeking declaratory judgment that city’s public facilities authority and city could not sell 8.8 acres of park land to a private developer for the construction of a commercial shopping center because the land was held in a public trust expressly as a park for the people; taxpayers asserted that the $570,000 in city funds to be paid to prospective private developer would have been an illegal expenditure.

City’s public facilities authority and city were prohibited from selling tract park to prospective private developer, unless the public use had been abandoned or the park had become unsuited for continued use, despite the fact that legal title had been transferred via a quit claim deed from city to a public trust; the park land was held by authority, a public trust, for the use and benefit of the citizens as a public park, the park land was held in a governmental capacity for use by the public, such that it could not be sold without special legislative authority, and it was undisputed that there was no special legislative authorization empowering authority and city to sell that tract of the park to a private developer for commercial use.

Genuine issue of material fact existed as to whether tract of park which city’s public facilities authority and city was attempting to sell to private developer for construction of a commercial shopping center, had been lawfully abandoned, and as such relinquished, by authority and/or city, as would have authorized its sale without special legislative authority, thus, precluding summary judgment in taxpayers’ action seeking declaratory judgment that authority and city could not sell that tract to prospective private developer.

Genuine issue of material fact existed as to whether the expenditure of public funds by city public facilities authority and city, namely, sale of tract of park for 20% of its market value to private developer and allocation of a half million dollars in tax funds for infrastructure development to same developer met the constitutional public purpose requirement for investment of public funds in private enterprises, thus, precluding summary judgment in taxpayers’ action seeking declaratory judgment that authority and city could not sell that tract to prospective private developer.




IMMUNITY - PENNSYLVANIA

Degliomini v. ESM Productions, Inc.

Supreme Court of Pennsylvania - June 22, 2021 - A.3d - 2021 WL 2546382

Bicyclist who was injured when he rode into unmarked and un-barricaded sinkhole on city street during charity bike ride brought negligence action against city, among other parties.

Following jury verdict in favor of bicyclist, the Court of Common Pleas denied city’s motion for post-trial relief and granted bicyclist’s motion for delay damages. City appealed. The Commonwealth Court reversed. Bicyclist petitioned for discretionary review.

The Supreme Court held that pre-injury exculpatory release granting city immunity from duty to maintain city streets violated public policy, and was thus invalid.

Enforcement of pre-injury exculpatory release to grant city immunity in negligence action by bicyclist who was injured when he rode into unmarked and un-barricaded sinkhole during charity bike ride would have jeopardized health, safety, and welfare of public at large by removing any incentive for city to exercise minimal standards of care due to maintain public streets in reasonably safe condition for reasonably foreseeable uses, thus rendering release invalid as it violated public policy principles definitively stated in Political Subdivision Tort Claims Act; city’s duty to exercise reasonable care in discharging its independently-derived and essential function of street repair arose long before event, when city had actual notice or could reasonably have been charged with notice of existence of sinkhole.




ZONING & PLANNING - SOUTH CAROLINA

Croft as Trustee of James A. Croft Trust v. Town of Summerville

Supreme Court of South Carolina - June 16, 2021 - S.E.2d - 2021 WL 2448236

Residents and public interest groups sought judicial review of decision by town board of architectural review approving construction of proposed development project.

The Court of Common Pleas affirmed. Residents and public interest groups appealed. The Court of Appeals affirmed. Residents and public interest groups filed petition for writ of certiorari, which was granted.

The Supreme Court held that:

Appeal from decision affirming decision by town board of architectural review approving construction of proposed development project was moot; issue was whether developer could build the project as approved by the board, controversy ended when developer decided not to build project while appeal was pending, and decision rendered for either party would not provide any practical relief and would be a purely academic exercise by appellate court.

Exception to mootness doctrine permitting appellate court to decide merits of moot appeal for issues capable of repetition, yet evading review, did not apply to appeal filed by residents and public interest groups challenging decision affirming approval of proposed development project by town board of architectural review on grounds of purported Freedom of Information Act (FOIA) and town ordinance violations, which was rendered moot when developer decided not to build project while appeal was pending; although issues related to purported FOIA and ordinance violations were capable of repetition, they did not evade review, since appeal did not become moot because there was insufficient time to challenge board’s approval before controversy ended.

Public interest exception to mootness doctrine did not apply to permit appellate court to decide merits of appeal filed by residents and public interest groups challenging decision affirming approval of proposed development project by town board of architectural review on grounds of purported Freedom of Information Act (FOIA) and town ordinance violations, which was rendered moot when developer decided not to build project while appeal was pending; while it was important that citizens had the ability to stay informed of the activities of public bodies, there was no imperative or manifest urgency requiring appellate court to issue opinion on application of FOIA and town ordinances to board’s activity.




EMINENT DOMAIN - CALIFORNIA

Pakdel v. City and County of San Francisco, California

Supreme Court of the United States - June 28, 2021 - S.Ct. - 2021 WL 2637819 - 21 Cal. Daily Op. Serv. 6305

Partial owners of a multi-unit residential building organized as a tenancy-in-common brought § 1983 action against city, its board of supervisors, and its department of public works, alleging a city ordinance effected an unconstitutional regulatory taking by conditioning the conversion of the building to a condominium arrangement on the partial owners offering the tenant in their unit a lifetime lease.

The United States District Court for the Northern District of California granted defendants’ motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Owners appealed. The United States Court of Appeals for the Ninth Circuit affirmed, and denied rehearing en banc.

Upon granting certiorari, the Supreme Court held that owners did not have to comply with administrative procedures for seeking relief, in order to satisfy finality requirement for bringing regulatory taking claim.

Partial owners of a multi-unit residential building organized as a tenancy-in-common did not have to comply with city’s administrative procedures for seeking relief, in order to satisfy finality requirement for bringing their § 1983 action alleging city ordinance effected an unconstitutional regulatory taking by conditioning the conversion of the building to a condominium arrangement on the owners offering the tenant in their unit a lifetime lease; having denied the owners’ requests for an exemption from the ordinance, there was no question about the city’s position, as the owners either had to execute the lifetime lease or face an enforcement action.




IMMUNITY - GEORGIA

Young v. Johnson

Court of Appeals of Georgia - June 14, 2021 - S.E.2d - 2021 WL 2410699

Driver of vehicle that was hit by city vehicle being driven by motorist, a city employee, brought negligence action against city and motorist.

The trial court granted city’s and motorist’s motion to dismiss based on sovereign immunity. Injured driver appealed.

The Court of Appeals held that driver’s failure to explicitly plead a waiver of city’s sovereign immunity barred her from bringing negligence action against city and motorist.

Failure of driver of vehicle that was hit by city vehicle being driven by motorist, a city employee, to explicitly plead a waiver of city’s sovereign immunity, barred her from bringing negligence action against city and motorist; driver did not explicitly plead a waiver of city’s sovereign immunity in her complaint, she failed to amend her complaint to allege such a waiver, she did not raise sovereign immunity in any of her filings in the court below, she failed to respond to city’s motion to dismiss based on sovereign immunity, and she did not otherwise contest the motion to dismiss.




CRIMINAL LAW - IOWA

State v. Wright

Supreme Court of Iowa - June 18, 2021 - N.W.2d - 2021 WL 2483567

Following denial of his motion to suppress, defendant was convicted in the District Court of possession of controlled substances, and he appealed. The Court of Appeals affirmed, and defendant appealed.

The Supreme Court held that:




POLITICAL SUBDIVISIONS - MAINE

Fair Elections Portland, Inc. v. City of Portland

Supreme Judicial Court of Maine - June 17, 2021 - A.3d - 2021 WL 2460648 - 2021 ME 32

Voters group sought judicial review of city council’s decision not place a citizen-initiated ballot question on the ballot as a proposed charter amendment and asserted independent claims seeking declaratory judgment and injunctive relief, as well as violations of state and federal law pursuant to § 1983.

The Superior Court affirmed city council’s decision. Voters group appealed.

The Supreme Judicial Court held that:

The Home Rule Act authorizes municipal officers to review a proposed charter modification to determine whether it constitutes a revision rather than an amendment, even where the petition presenting the proposed modification does not include the statute’s optional language regarding requests for revision of the charter.

For purposes of the Home Rule Act, the distinction between a charter amendment and a charter revision is one of scope, in terms of breadth of what would be affected and depth of what would be altered, in that a proposed amendment would not, if enacted, materially affect the municipality’s implementation, in the course of its operations, of major charter provisions that are not mentioned in the proposed amendment, and in terms of depth, an amendment would not, if enacted, make a profound and fundamental alteration in the essential character or core operations of municipal government; if a petition proposes a change to the charter that is either so broad or so profound, or both, as to justify a revisitation of the entire charter by a charter commission, the proposal is for a revision.

City council’s failure to make findings of fact to explain its decision not place a citizen-initiated ballot question on the ballot as a proposed charter amendment precluded meaningful judicial review; given that whether a particular charter proposal would be an amendment or a revision focused on the proposal’s effect on the current municipal charter and operations, city council’s adjudication of that question was highly fact-specific, but the record contained no statement of city council’s basis in law and fact for whether or not it deemed the petition to propose a revision rather than an amendment of the charter, and without that, the court could not determine whether the rejection of the petition involved legal error, abuse of discretion, or findings not supported by substantial evidence.




ZONING & PLANNING - NORTH CAROLINA

Cheryl Lloyd Humphrey Land Investment Company, LLC v. Resco Products, Inc.

Supreme Court of North Carolina - June 11, 2021 - S.E.2d - 2021-NCSC-56 - 2021 WL 2387933

Vendor of undeveloped land brought action for tortious interference with prospective economic advantage against owners of open-quarry mine that was adjacent to a portion of the land, asserting mine owners made misrepresentations during town’s rezoning hearings concerning dangers posed by mining operations, inducing purchaser to exclude from purchase the portion of property that was adjacent to the mine.

The Superior Court granted mine owners’ motion to dismiss for failure to state a claim. The Court of Appeals reversed. Mine owners appealed.

The Supreme Court held that alleged misrepresentations made by mine owners during town’s rezoning hearings constituted protected petitioning activity.

Alleged misrepresentations made by owners of open-quarry mine that was adjacent to a portion of undeveloped land during town’s rezoning hearings concerning dangers posed by mining operations, which statements allegedly induced land purchaser to exclude from purchase agreement with vendor the portion of property that was adjacent to the mine, constituted petitioning activity protected by the First Amendment to the United States Constitution and the North Carolina Constitution.




ZONING & PLANNING - RHODE ISLAND

Middle Creek Farm, LLC v. Portsmouth Water & Fire District

Supreme Court of Rhode Island - June 16, 2021 - A.3d - 2021 WL 2447820

Subdivision developer brought action against town water and fire district for declaratory and injunctive relief, contending that district was required to provide water services to subdivision lots which were partially in town and partially in neighboring town.

District filed motion to dismiss for failure to join indispensable parties. The Superior Court denied district’s motion and granted developer’s motion for summary judgment. District appealed.

The Supreme Court held that:

Term “inhabitants” in town water and fire district’s charter, authorizing distribution of water to the inhabitants of the district, meant anyone who owned real estate and paid taxes to the district, rather than simply to parcels with residences within town boundaries; charter references not only a “house” but also a “building, tenement or estate,” charter also gave district the power and authority to mandate that “any estate” connect to an abutting main, and it would be absurd to allow district to tax businesses such as golf courses or farms which lacked residential components or buildings while not providing water to such businesses.

Owners of other 53 properties partially located in town and partially located in neighboring town were not indispensable parties to subdivision developer’s declaratory judgment action against town water and fire district seeking extension of water to subdivision lots partially located in town and partially located in neighboring town; none of the other owners had a direct claim upon the subject of the action such that joinder of that party would cause it to lose anything by operation of the judgment rendered, nor did they have an actual, present, adverse, and antagonistic interest in the judgment, and any risk that district would have to litigate the underlying issue every time a property straddling the borderline filed an application for water service was purely speculative.




INSURANCE - SOUTH CAROLINA

Reeves v. South Carolina Municipal Insurance and Risk Financing Fund

Supreme Court of South Carolina - June 16, 2021 - S.E.2d - 2021 WL 2448359

Personal representative of decedent’s estate brought declaratory judgment action against municipal insurer seeking interpretation of extent of coverage for municipality and municipal police officers, following settlement entered for wrongful shooting death.

The Circuit Court granted personal representative’s motion for summary judgment in part and denied it in part, and granted insurer’s motion for summary judgment in part and denied it in part. Both parties appealed. The Court of Appeals affirmed in part and reversed in part. Insurer’s petition for writ of certiorari was granted.

The Supreme Court held that:

Municipality’s negligent acts of hiring, retaining, and supervising police officer, and officer’s use of deadly force, were separate occurrences under terms of law enforcement liability indemnity coverage that defined “occurrence” as wrongful act that resulted in bodily injury, resulting in separate claims for separate damages.

No duplication clause in insurance policy that limited law enforcement liability indemnity coverage for any claim applicable to more than one section of contract did not apply to municipality’s negligent acts of hiring, retaining, and supervising police officer, and officer’s use of deadly force, since claims involved only law enforcement liability.

No duplication clause in insurance policy that limited law enforcement liability indemnity coverage for all claims or suits involving substantially same injury or damage, or progressive injury or damage, did not apply to municipality’s negligent acts of hiring, retaining, and supervising police officer, and officer’s use of deadly force.

Undefined term “Coverage Limit” in insurance policy providing law enforcement liability indemnity coverage had to be construed against insurer as synonymous with “liability limit,” which was defined as “$1,000,000” “Per Occurrence.”

“Limit of Liability” portion of insurance policy providing law enforcement liability indemnity coverage stating “Only a single limit or Annual Aggregate will apply, regardless of the number of persons or organizations injured or making claims, or the number of Covered Persons who allegedly caused them, or whether the damage or injuries at issue were continuing or repeated over the course of more than one Coverage Period” did not limit claims that municipality was negligent in hiring, retaining, and supervising police officer and officer wrongfully used deadly force, since that section did not contain “Annual Aggregate” and undefined “single limit” term provided it was “Liability Limit” of “$1,000,000” “Per Occurrence.”

“Limit of Liability” portion of insurance policy providing law enforcement liability indemnity coverage stating “liability for any one occurrence/wrongful act will be limited to $1,000,000 per Member regardless of the number of Covered Persons, number of claimants or claims made” did not limit claims that municipality was negligent in hiring, retaining, and supervising police officer and officer wrongfully used deadly force, since there were multiple occurrences-wrongful acts.




EMINENT DOMAIN - TEXAS

Jim Olive Photography v. University of Houston System

Supreme Court of Texas - June 18, 2021 - S.W.3d - 2021 WL 2483766 - 64 Tex. Sup. Ct. J. 1411

Professional photographer brought action against public university, alleging unlawful taking based on university’s unauthorized use of copyrighted aerial photograph of city on university’s webpages.

The District Court denied university’s plea to the jurisdiction. University filed interlocutory appeal. The Houston Court of Appeals vacated and dismissed. Photographer petitioned for review, which was granted.

The Supreme Court held that university’s alleged copyright infringement was not a per se taking.

Alleged copyright infringement by public university, via unauthorized use of copyrighted aerial photograph of city on university’s webpages, was not a “per se taking,” despite argument that university deprived photographer of the most important stick in his bundle of rights, that being his exclusive right to control his work; university did not take possession or control of copyright, photographer retained key legal rights that constituted property, university did not assume physical control of copyright, photographer could seek injunctive relief to prevent or restrain infringement of a copyright, and university’s infringement did not deprive photographer of right to dispose of copyrighted work.




ZONING & PLANNING - CONNECTICUT

Farmington-Girard, LLC v. Planning and Zoning Commission of City of Hartford

Supreme Court of Connecticut - June 7, 2021 - A.3d - 2021 WL 2324251

Special permit applicant filed appeals challenging text amendments to city zoning regulations and zoning map changes made by city planning and zoning commission precluding special permit to construct fast-food restaurant.

After consolidation of appeals, the Superior Court dismissed. Applicant appealed. The Appellate Court affirmed. Applicant petitioned for certification to appeal, which was granted.

The Supreme Court held that:




ZONING & PLANNING - FLORIDA

Burns v. Town of Palm Beach

United States Court of Appeals, Eleventh Circuit - June 8, 2021 - F.3d - 2021 WL 2325300

Property owner brought § 1983 action against town, alleging that denial of approval, by town’s architectural review commission, of building permit for replacement of traditional beachfront mansion with larger mansion using midcentury modern design violated his rights to due process, equal protection, and freedom of expression.

The United States District Court for the Southern District of Florida adopted the report and recommendation of a magistrate judge and granted summary judgment to town. Owner appealed.

The Court of Appeals held that:




CONTRACTS - GEORGIA

Renee Group, Inc. v. City of Atlanta

Court of Appeals of Georgia - June 11, 2021 - S.E.2d - 2021 WL 2389138

Sewer cleaning corporation, who was invited by city to submitted bid for Department of Watershed Management sewer cleaning and pipeline assessment annual contract, brought action against city alleging breach of contract and promissory estoppel.

The trial court granted city’s motion to dismiss breach-of-contract claim and granted city’s motion for summary judgment, asserting that corporation could not meet its burden in showing promissory estoppel. Sewer cleaning corporation appealed.

The Court of Appeals held that corporation was precluded from bringing promissory estoppel claim against city.

Sewer cleaning corporation, who was invited by city to submitted bid for Department of Watershed Management sewer cleaning and pipeline assessment annual contract, was precluded from bringing promissory estoppel claim against city, although city council approved resolution authorizing mayor to enter into proposed agreement with corporation; there also needed to be approval by city attorney, execution by mayor, and attestation to by municipal clerk, and none of those requirements were met.




LIABILITY - MICHIGAN

Buhl v. City of Oak Park

Supreme Court of Michigan - June 9, 2021 - N.W.2d - 2021 WL 2350031

Pedestrian, who fractured her ankle when she fell attempting to avoid a crack in sidewalk, brought action against city under the sidewalk exception to governmental immunity.

The Circuit Court granted summary disposition in favor of city, based on statutory amendment that allowed municipality to assert open and obvious danger doctrine as a defense. Pedestrian appealed, and the Court of Appeals affirmed. Pedestrian appealed.

The Supreme Court held that amended statute granting municipalities right to raise open and obvious danger doctrine as defense in premises-liability cases, could not be applied retroactively to pedestrian’s claim.

Nothing in the plain language of amended statute granting municipalities the right to raise the open and obvious danger doctrine as a defense in premises-liability cases suggested that it was intended to apply retroactively, and thus, factor asking whether there is specific language in the statute that indicates whether it should be applied retroactively did not support retroactive application of amended statute to pedestrian’s claim seeking to recover from city for injuries sustained when she fell trying to avoid a crack in sidewalk prior to amendment; amendment was given immediate effect without further elaboration, and amendment made no mention of whether it applied to a cause of action that had already accrued before its effective date.

Factor asking whether retroactive application of statute or amendment would create new obligations, impose new duties, or attach new disabilities with respect to transactions already past, did not favor retroactive application of amended statute granting municipalities right to raise open and obvious danger doctrine as defense in premises-liability cases, to pedestrian’s claim seeking to recover from city for injuries sustained when she fell trying to avoid a crack in sidewalk prior to amendment; although application of amended statute would not automatically extinguish pedestrian’s claim, subsequent application of open and obvious danger doctrine would result in dismissal of her lawsuit because retroactive application would relieve city of legal duty it owed to her when injury occurred.

Factor favoring retroactive application of statutes that are merely remedial or procedural did not favor retroactive application of amended statute granting municipalities right to raise open and obvious danger doctrine as defense in premises-liability cases, to pedestrian’s claim seeking to recover from city for injuries sustained when she fell trying to avoid a crack in sidewalk prior to amendment; retroactive application of amendment would relieve city of duty it owed to maintain its sidewalk in reasonable repair.

Amended statute granting municipalities right to raise open and obvious danger doctrine as defense in premises-liability cases, could not be applied retroactively to pedestrian’s claim seeking to recover from city for injuries sustained when she fell trying to avoid a crack in sidewalk prior to amendment, and thus, city could not avail itself of the open and obvious danger doctrine as a defense to pedestrian’s negligence claim; nothing in the plain language of amended statute suggested that it was intended to apply retroactively, and retroactive application would relieve city of a legal duty it owed to pedestrian when injury happened.




BONDS - NEW YORK

Monterey Bay Military Housing, LLC v. Ambac Assurance Corporation

United States District Court, S.D. New York - March 31, 2021 - F.Supp.3d - 2021 WL 1226984

Military base housing projects brought action in Northern District of California against loan originator, bond insurer, their managing directors, and others for conspiracy and substantive violations of Racketeer Influenced and Corrupt Organizations Act (RICO), as well as state-law claims including breach of fiduciary duty and aiding and abetting breach of fiduciary duty.

After originally denying insurer’s motion to transfer venue, the United States District Court for the Northern District of California denied defendants’ motions to dismiss second amended complaint for failure to state a claim, but sua sponte reconsidered its prior denial of transfer motion and transferred action to Southern District of New York for lack of personal jurisdiction over all but one defendant. Defendants moved for reconsideration.

The District Court held that:

District court’s determination that it lacked personal jurisdiction over all but one defendant in developers’ action under Racketeer Influenced and Corrupt Organizations Act (RICO) precluded district court from denying defendants’ motions to dismiss for failure to state a claim; personal jurisdiction over defendants was necessary before district court could adjudicate arguments presented by those defendants in motions to dismiss for failure to state a claim, at least to extent that district court ruled against such defendants.

Military housing projects’ allegations that bond insurer, loan originator, their managing directors, and others engaged in mail and wire fraud as predicates for Racketeer Influenced and Corrupt Organizations Act (RICO) enterprise and conspiracy claims were premised on each defendant’s knowing or intentional participation in scheme to defraud, and, thus, projects were not required to plead defendants had fiduciary duty giving rise to obligation to disclose any omitted facts, where projects alleged that originator, insurer, and their directors made affirmative representations to private developers and to consultant regarding financing of housing projects, including that insurer would act in projects’ best interests to obtain highest possible rating from rating agencies.

Housing projects adequately alleged special circumstances giving rise to fiduciary relationship between loan originator and its managing director on the one hand and projects on the other, as necessary to support projects’ claims against originator and director for breach of fiduciary duty under New York law, even though loan agreements did not purport to create fiduciary relationship, where projects alleged that originator and its director promised to provide fiduciary services beyond typical lender role in connection with financing projects, including by serving as financial advisor and as projects’ agent in negotiating term loans and surety bonds, and that projects relied on representations in agreeing to work with originator rather than other lenders.

Allegations that bond insurer, through its managing director, told private developers and consultant for housing projects on military bases that insurer would act in projects’ best interest to obtain highest possible rating from ratings agencies and would operate as projects’ “fiduciary and agent” were insufficient, under New York law, to plausibly allege fiduciary relationship between insurer or its managing director and projects, as necessary to support projects’ claims against insurer and managing director for breach of fiduciary duty, in the absence of specific allegations regarding nature of relationship between insurer and projects.

Clause in agreements that mortgage company entered into in connection with financing for housing projects on military bases, in which mortgage company disclaimed “financial advisor or fiduciary relationship role” in relation to developers, applied solely to mortgage company, not to entities affiliated with mortgage company, and, thus, under New York law, disclaimer clause did not preclude developers’ action for breach of fiduciary duty against affiliated entities, where clause only specified that mortgage company would not be agent or fiduciary of developers or assume advisory or fiduciary responsibility in favor of developers.

Clause in agreements that mortgage company entered into in connection with financing for housing projects on military bases, in which mortgage company disclaimed “financial advisor or fiduciary relationship role” in relation to developers, did not preclude developers’ claims against company under New York law for breach of fiduciary duty, where developers alleged that financial advisor who engaged in tortious conduct in breach of his fiduciary obligations was acting as agent of company and within scope of his employment with entity affiliated with company, such that company and entity were allegedly vicariously liable for financial advisor’s conduct, as well as that company and financial advisor procured developers’ agreement to disclaimer clause by fraud.

In considering whether, based on allegations of second amended complaint, military base housing projects had inquiry notice of allegedly fraudulent conduct on the part of loan originator, insurer, and others that would trigger four-year statute of limitations on projects’ claims under Racketeer Influenced and Corrupt Organizations Act (RICO), trial court was not required to consider allegation contained only in first amended complaint that development consultant had noticed originator’s preference for using insurer on projects; statement in first amended complaint did not directly contradict allegations of second amended complaint.

Allegations in housing projects’ complaint against loan originator, insurer, and others for mail and wire fraud under Racketeer Influenced and Corrupt Organizations Act (RICO) were sufficient to establish that projects engaged in reasonably diligent inquiry, such that four-year limitations period on RICO claims did not begin to run based on inquiry notice, even if consultant’s observation that originator seemed partial to using insurer for credit enhancement triggered projects’ duty to inquire, where consultant allegedly insisted that originator competitively bid out credit enhancement, indicating some inquiry had occurred, and insurer and originator responded by concealing insurer’s role in development project financing, such that further inquiry would not have discovered alleged fraud.

Consultant’s observation that loan originator was partial to using insurer for credit enhancement in connection with military base housing project financing was insufficient to show that a reasonable plaintiff with such knowledge would have been aware of existence of fraud, and, thus, did not put projects, which brought civil claim under Racketeer Influenced and Corrupt Organizations Act (RICO) against originator and insurer based on mail and wire fraud, on inquiry notice that would trigger four-year limitations period for civil RICO claims; originator’s pattern of business dealings with same insurer, in and of itself, did not indicate alleged schemes to inflate credit spread and manipulate insurer ratings.

Military base housing projects’ questioning of managing director of loan originator about funding structure did not establish that projects were on notice of director’s alleged fraud in obtaining financing, and, thus, did not preclude doctrine of fraudulent concealment from delaying application of four-year statute of limitations on projects’ civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims against director, originator, and others, in the absence of allegations about circumstances that prompted projects to ask such questions.

Consultations between housing project developers and managing director of loan originator about effect on projects of downgrade in insurer’s rating did not suggest that developers were aware of alleged fraudulent scheme for insurer to secretly participate in certain projects, and, thus, did not preclude doctrine of fraudulent concealment from delaying limitations period on developers’ claims against director, originator, insurer, and others under Racketeer Influenced and Corrupt Organizations Act (RICO); it would have been reasonable for developers to have concerns about insurer’s downgrade in connection with projects for which insurer openly provided credit enhancement, as opposed to projects for which developers were allegedly unaware of insurer’s involvement.

Military housing projects’ allegations that loan originator, bond insurer, and others engaged in scheme to defraud projects, as bond issuers, by falsely representing bonds’ interest rates would be set at market, allowing originator to keep undisclosed profits from sales at above-market rates, would not have supported a securities fraud enforcement action brought by Securities and Exchange Commission (SEC), and, thus, securities-fraud bar to actions under Racketeer Influenced and Corrupt Organizations Act (RICO) did not preclude projects from basing RICO claims on alleged scheme; projects alleged that participants made misrepresentations and caused harm to them as bond issuers, which did not implicate SEC’s authority to protect securities market or securities investors such as bond holders.

Military housing projects’ allegations that loan originator, bond insurer, and originator’s managing director, among others, engaged in scheme of mail and wire fraud in connection with project financing satisfied horizontal relatedness requirement for Racketeer Influenced and Corrupt Organizations Act (RICO) enterprise claim, where various alleged acts of fraud had same or similar purposes and results, namely, obtaining undisclosed and unlawful profits in connection with providing financing through projects, alleged scheme shared same participants as well as many same victims, including Army and its consultant, and predicate acts shared methods of commission, including director’s role as financial advisor and misrepresentations regarding nature and structure of financial transactions.

Alleged misrepresentations that loan originator, its managing director, bond insurer, and others made to military housing projects, Army, and its consultant regarding nature of transactions undertaken to finance projects related to activities of alleged Racketeer Influenced and Corrupt Organizations Act (RICO) enterprise, as necessary to satisfy requirement of vertical relatedness for RICO enterprise claim, where misrepresentations allegedly benefited originator, director, and other participants in alleged scheme of mail and wire fraud by allowing them to reap undisclosed profits at projects’ expense, such as through issuance of high-interest bonds, or to prevent projects from uncovering enterprise’s scheme, such as through concealing insurer’s involvement.

Military base housing projects adequately alleged that bond insurer knowingly and intentionally participated in mail and wire fraud scheme to obtain credit enhancement fees from projects without projects’ knowledge that insurer was participating in financing, as necessary to plead insurer’s mail and wire fraud as predicate acts under Racketeer Influenced and Corrupt Organizations Act (RICO), even though insurer did not make any misrepresentations or omissions to projects, where projects alleged that originator, director, and insurer intentionally concealed that insurer was providing credit enhancement in exchange for high fees, despite representations that project loans would not have credit enhancement and despite providing project with certain documents omitting insurer’s role.

Military housing projects adequately alleged that purchaser of loan originator and purchaser’s affiliated entities entered into conspiracy with originator, originator’s managing director, and bond insurer to defraud projects in securing financing, as necessary to support Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy claim, where projects alleged that during due diligence process preceding acquisition of originator’s business, purchaser and affiliates learned that originator and others engaged in enterprise to reap profits through making misrepresentations to projects regarding bond insurance rates and credit enhancement services, and purchaser proceeded with acquisition and hired managing director, then made their own financing-related misrepresentations to projects.

Military housing projects’ complaint against loan originator, purchaser of originator, purchaser’s affiliated entities, and others for Racketeer Influenced and Corrupt Organizations Act (RICO) enterprise and conspiracy adequately explained specific role of purchaser and each of its affiliates in alleged scheme to defraud projects in connection with financing, as necessary to satisfy requirement of pleading fraud with particularity as to each defendant, where complaint alleged each entity’s role in financing of projects, alerted each entity to theory of liability against it, including theory of purchaser’s successor liability, and alleged that entities had intertwined operations making it difficult to tell which entity took which actions.




ZONING & PLANNING - OHIO

Benalcazar v. Genoa Township, Ohio

United States Court of Appeals, Sixth Circuit - June 10, 2021 - F.3d - 2021 WL 2374260

Property owners filed § 1983 action alleging that township violated their rights under Due Process and Equal Protection Clauses when it denied their rezoning request. After township signed consent decree permitting owners to develop their property, township residents intervened and moved to dismiss.

The United States District Court for the Southern District of Ohio approved consent decree, and intervenors appealed.

The Court of Appeals held that district court had authority to enter consent decree without first ruling on intervenors’ motion to dismiss.

District court had subject matter jurisdiction over property owners’ non-frivolous claim that township violated their rights under Due Process and Equal Protection Clauses when it denied their rezoning request, and thus had authority to enter consent decree without first ruling on intervening township residents’ motion to dismiss based on zoning referendum reversing township’s approval of rezoning application.




OPEN MEETINGS - WASHINGTON

Zink v. City of Mesa

Court of Appeals of Washington, Division 3 - June 1, 2021 - P.3d - 2021 WL 2197995

City council meeting attendee brought action against city, mayor, city council members, county, sheriff’s offices, sheriff, and deputies, alleging violations of the Open Public Meetings Act (OPMA) in connection with arrest for video recording city council meeting, among other claims.

Following a jury verdict in favor of defendants, the Superior Court set aside jury’s verdict and found city violated OPMA by prohibiting attendee from video recording meeting, and awarded $5,000 in attorney fees. Attendee appealed.

Upon transfer from the Supreme Court, the Court of Appeals held that:




ANNEXATION - WISCONSIN

City of Mayville v. Department of Administration

Supreme Court of Wisconsin - June 11, 2021 - N.W.2d - 2021 WL 2385542 - 2021 WI 57

First village filed petition for judicial review of decision of Department of Administration, which approved cooperative plan between second village and town whereby second village and town would be consolidated. Department and second village moved to dismiss for lack of standing.

The Circuit Court denied motion. The Circuit Court thereafter determined that first village was required to be party to plan and reversed Department’s decision. Department and second village appealed. The Court of Appeals affirmed as modified. The Supreme Court granted review.

The Supreme Court held that:

Department of Administration’s decision approving cooperative plan to consolidate first village and town adversely affected substantial interests of second village, and thus second village had standing to seek judicial review of decision, where both villages were completely surrounded by town, which was unincorporated, upon approval of plan land surrounding second village would become incorporated village, prior to plan second village had statutory extraterritorial zoning rights and extraterritorial plat approval rights within town and was statutorily permitted to annex areas of town contiguous to it, and plan extinguished those statutorily granted rights.

Cooperative plan to consolidate first village and town physically altered or made difference in second village’s boundary line, and thus before such change could be effective, second village was required to be party to plan, although plan did not, in and of itself, effect change in second village’s boundary line, where plan set conditions that had to be met if second village’s boundary lines were to change, and, further, territory surrounding second village would become incorporated territory and, due to that change, second village would no longer will possess statutory right to annex that territory.




IMMUNITY - CALIFORNIA

Sales v. City of Tustin

Court of Appeal, Fourth District, Division 3, California - June 8, 2021 - Cal.Rptr.3d - 2021 WL 2327869 - 21 Cal. Daily Op. Serv. 5489

Mother brought action in federal court against city asserting federal civil rights claims and state wrongful death and civil rights claims arising from death of her son who was struck by vehicle while being pursued by police officers on foot.

The United States District Court for the Central District of California entered judgment against her on her federal claims and withdrew supplemental jurisdiction over her state-law claims. After the United States Court of Appeals for the Ninth Circuit affirmed, mother brought action asserting her state-law claims in state court. The Superior Court granted summary judgment in favor of city based on statute of limitations, and denied mother’s motion for reconsideration. Mother appealed.

The Court of Appeal held that six-month limitations period under California’s Tort Claims Act was tolled for 30 days from date United States Court of Appeals issued its mandate, not from date United States District Court dismissed mother’s pendent state-law claims.

Six-month limitations period under California’s Tort Claims Act for mother’s wrongful death and civil rights claims against city in connection with death of her son, who was struck by vehicle while being pursued by police officers on foot, was tolled for 30 days pursuant to federal supplemental jurisdiction statute from date United States Court of Appeals issued its mandate on mother’s appeal as of right in her previous federal action, rather than from date United States District Court dismissed mother’s pendent state-law claims or from date United States Court of Appeals filed its panel decision.




PUBLIC UTILITIES - COLORADO

San Isabel Electric Association, Inc. v. Public Utilities Commission

Supreme Court of Colorado - June 1, 2021 - P.3d - 2021 WL 2197981 - 2021 CO 36

Rural cooperative electric association sought review of Public Utilities Commission’s (PUC) order, determining that association’s certificates of public convenience and necessity (CPCN) did not give association the right to provide station power to another electric utility’s wind farms that were located in association’s certificated service territory.

The District Court affirmed. Association appealed.

The Supreme Court, en banc, held that:

Rural cooperative electric association did not have a right under its certificates of public convenience and necessity (CPCN) to provide station power to another electric utility’s wind farms that were located in association’s certificated service territory, and other utility, as a vertically integrated utility, could continue to self-supply such power using its own interconnected transmission network and electric generation resources; self-supply of station power did not involve a sale, prohibiting self-supply of power would have resulted in inefficient duplication, and allowing self-supply of power promoted state’s renewable energy policy.

Rural cooperative electric association did not have a due process property right under its certificates of public convenience and necessity (CPCN) to provide station power to winds farms of a vertically-integrated electric utility that were located in association’s certificated service territory, and therefore lack of a PUC hearing on whether association was unwilling or unable to serve its certificated territory, relating to the purported deletion of portion of territory, did not violate due process.




STATUTE OF LIMITATIONS - INDIANA

City of Marion v. London Witte Group, LLC

Supreme Court of Indiana - June 17, 2021 - N.E.3d - 2021 WL 2466180

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

The Superior Court granted in part and denied in part financial advisor’s motion for summary judgment. City appealed and financial advisor cross-appealed. The Court of Appeals affirmed in part, reversed in part, and remanded with instructions. City sought transfer, and transfer was granted.

The Supreme Court held that:

The Supreme Court would adopt the equitable tolling doctrine of adverse domination, which was an equitable doctrine that tolled statutes of limitations for claims by corporations against its officers, directors, lawyers and accountants for so long as corporation was controlled by those acting against its interests, as a logical corollary of its discovery rule.

The adverse domination doctrine, which tolled the statute of limitations as long as the corporate plaintiff was controlled by alleged wrongdoers, applied to both private and municipal corporations.

Genuine issues of material fact existed as to whether mayor adversely dominated the city, and whether company that provided financial advice to city contributed to it, precluding summary judgment based on the adverse domination doctrine on company’s statute of limitations defense in negligence, breach of fiduciary duty, and constructive fraud action.




ZONING & PLANNING - MASSACHUSETTS

Styller v. Zoning Board of Appeals of Lynnfield

Supreme Judicial Court of Massachusetts, Suffolk - June 7, 2021 - N.E.3d - 487 Mass. 588 - 2021 WL 2308296

Property owner brought action challenging town zoning board’s decision that short-term rentals of owner’s single-family residence constituted an unauthorized additional use of the property as a “tourist home” or “lodging house” that was prohibited before town adopted new zoning bylaw that expressly barred such short-term rentals in single-residence zoning districts.

After owner sold the residence affirmed the board’s decision. Owner appealed, and case was transferred from the Appeals Court.

The Supreme Judicial Court held that:




ANNEXATION - NEBRASKA

County of Sarpy v. City of Gretna

Supreme Court of Nebraska - May 28, 2021 - N.W.2d - 309 Neb. 320 - 2021 WL 2171772

County brought action for declaratory and injunctive relief against city, challenging validity of city’s annexation ordinances and a zoning extension ordinance for annexation of area that was in close proximity to rapidly developing areas and that was planned for development, but that was presently undeveloped and being used for agricultural purposes.

The District Court granted county’s motion for summary judgment. City appealed.

The Supreme Court held that annexed area was urban thus precluding statutory ban on annexation of agricultural lands that were rural in character by a city of the second class.

Annexed area that was in close proximity to rapidly developing areas and that was planned for development, but that was presently undeveloped and used for agricultural purposes, was “urban” and not “rural” in character, and thus city’s annexation ordinances and zoning extension ordinance for annexation of area did not violate statute prohibiting a city of the second class from annexing of agricultural lands that were rural in character; city’s comprehensive plan designated area to include planned interstate interchange which was designated as community entrance and special character area, city expected to develop area into city’s future growth area, and city, county, state, and other governmental agencies all had plans to develop area, which was fastest growing area in the state.




INDUSTRIAL DEVELOPMENT BONDS - PENNSYLVANIA

Katzen & Boyer v. Clearfield County Industrial Development Authority, et. al.

United States District Court, W.D. Pennsylvania - June 11, 2021 - Slip Copy2021 WL 2402005

Holder of industrial development bonds (Bonds) brought action alleging that Developers engaged in a scheme to deprive the Bondholders of additional contingent rental interest by fraudulently concealing and diverting rental revenue to a straw party, and by failing to accurately report the revenue generated by the Project Facility. Bondholders also alleged that Developer was suppressing the amount of additional contingent appreciation interest due to the Bondholders by refusing to provide information by which Paying Agent’s appraiser could make an accurate appraisal of the Project Facility.

Bondholders alleged claims for: breach of contract; tortious interference with contract; unjust enrichment; and, conspiracy.

Developers and related parties moved for summary judgment.

The District Court held that:

The gist of the action doctrine did not apply because the gravamen of the tort claim was not the alleged violation of Developers’ contractual obligations to the Bondholders as third-party beneficiaries under the Mortgage Loan Agreement, but instead was his intentional interference with the contractual obligations of the Industrial Development Authority and M&T Bank as Paying Agent under the Debt Resolution and the Bonds. Developers were not a party to either the Debt Resolution or the Bonds, and neither the Debt Resolution nor the Bonds created any direct contractual relationship between the Bondholders and Developers. Rather, it was the contractual obligations of the IDA and M&T Bank under the Debt Resolution and the Bonds with which Bondholders alleged Developers tortiously interfered.

The relationship between Developers and the Bondholders at the heart of the unjust enrichment claim was not founded on a direct contract between those two parties. Rather, the contract at issue is the Mortgage Loan Agreement between Developers and M&T Bank, as the agent of the IDA, to which the Bondholders are third party beneficiaries. And a third-party beneficiary to a contract, like the Bondholders, may bring an unjust enrichment claim when the defendant has “received and retained a benefit” from the plaintiff “which would be unjust to retain” without some payment to the plaintiff.

Because the question of whether punitive damages are proper often turns on the defendant’s state of mind, this question frequently cannot be resolved on the pleadings alone, but must await the development of a full factual record at trial.

Bondholders’ allegations that they are in a fiduciary relationship with M&T Bank which imposes common law duties to “protect, manage and preserve” the rights of the Bondholders related to the revenue generated by the Project Facility beyond the duties owed under the terms of the transaction documents, if believed, are sufficient to plausibly meet the first element of a breach of fiduciary duty claim under Pennsylvania law.

“Here, Plaintiffs allege that their breach of fiduciary duty claim is predicated on M&T Bank’s violation of a broader duty imposed by common law that arises from the fiduciary relationship existing between the Bondholders and the Bank, and that this duty exists regardless of any other obligations of the Bank imposed under the Mortgage Loan Agreement and Bonds. While there may be some overlap between the Bondholders’ breach of contract and breach of fiduciary duty claims against M&T Bank, the Court is satisfied that the Bondholders’ breach of fiduciary duty claim states enough distinct facts to give it a legal basis separate and apart from the contractual relationship between the parties. Accordingly, the Court concludes that Plaintiffs’ breach of fiduciary claim as pled against M&T Bank is not precluded as a legal matter by the gist of the action doctrine.”

 

 




BANKRUPTCY - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States District Court, D. Puerto Rico - May 21, 2021 - F.Supp.3d - 2021 WL 2071094

In matter arising within Commonwealth of Puerto Rico’s debt adjustment proceeding under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), union and individuals who were employees of Puerto Rico Electric Power Authority (PREPA) filed motion for preliminary injunction, seeking to enjoin implementation of operation and management agreement between PREPA and power company, whereby company was scheduled to take over operation of PREPA’s transmission and distribution system.

The District Court held that:

In matter arising within Commonwealth of Puerto Rico’s debt adjustment proceeding under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), union and individuals who were employees of Puerto Rico Electric Power Authority (PREPA) had Article III standing to assert claims seeking to enjoin implementation of operation and management agreement between PREPA and power company, whereby company was scheduled to take over operation of PREPA’s transmission and distribution system, including violations of ERISA, PROMESA, Contracts Clause of federal constitution, tortious interference with contract, and contract in prejudice of third party, to the extent claims were based on union’s loss of membership or employees’ alleged loss of vested rights that were required to be protected, as those alleged injuries were concrete and particularized.




PUBLIC UTILITIES - RHODE ISLAND

Laprocina v. Lourie

Supreme Court of Rhode Island - May 26, 2021 - A.3d - 2021 WL 2131725

Pedestrian, who had incurred permanent brain damage after he was hit by car while crossing intersection, for whom administratrix of estate was substituted following death, brought negligence action against electric company, alleging that area where collision occurred was not properly illuminated because electric company allowed rolling blackout to occur or failed to repair, replace, and maintain streetlights in area.

Following denial of electric company’s first summary judgment motion, the Superior Court entered summary judgment in favor of electric company. Administratrix appealed.

The Supreme Court held that:




ZONING & PLANNING - TEXAS

Powell v. City of Houston

Supreme Court of Texas - June 4, 2021 - S.W.3d - 2021 WL 2273976 - 64 Tex. Sup. Ct. J. 1209

Homeowners brought action against City of Houston, a home rule city, seeking a declaratory judgment that City’s historic preservation ordinance (HPO) violated zoning statute and city charter’s general prohibition against zoning.

Following bench trial, the County Civil Court at Law entered take-nothing judgment for city. Homeowners appealed. The Houston Court of Appeals affirmed. Homeowners petitioned for review, which was granted.

The Supreme Court held that:

Historic preservation ordinance (HPO) enacted by home rule city did not zone property in violation of city charter’s general prohibition against zoning; ordinance did not regulate purposes for which land could be used and, in fact, provided that it could not be construed to authorize city to regulate use of any structure or property, ordinance focused on protecting and preserving the exterior architectural characteristics of buildings based on historical significance, distinctiveness and connection to a neighborhood, instead of restricting the purposes for which land could be used, ordinance was targeted to fewer than one percent of city’s total lots, thereby lacking geographical comprehensiveness associated with zoning regulations, and Local Government Code provided different remedies for violations of zoning ordinances and for damage to designated historic structures.

City of Houston, a home rule city, complied with zoning statute’s requirement that historic preservation ordinance (HPO) be enacted in accordance with a comprehensive plan; ordinance was comprehensive with respect to changes to structures in historic areas, as it laid out in detail which changes were prohibited, which were allowed, and procedures for carrying out allowed changes, it required owners not to allow their landmarks and contributing structures to fall into state of disrepair resulting in deterioration of exterior features, and exemptions were similarly thorough.

City of Houston complied with zoning statute’s requirement, when enacting historic preservation ordinance (HPO), that home-rule municipality appoint zoning commission to implement regulations authorized by statute; Houston Archaeological and Historical Commission served as requisite commission, which made recommendations to City Council by identifying areas with potential for historic-district designations and initiating designation process, reviewed applications for designation of landmarks and historic districts and made recommendations before Council decided whether to make designation.




ZONING & PLANNING - VIRGINIA

Norton v. Board of Supervisors of Fairfax County

Supreme Court of Virginia - May 27, 2021 - S.E.2d - 2021 WL 2149384

Short-term lodging providers brought action against county board challenging amendments to the county zoning ordinance and imposition of transient occupancy tax.

The Fairfax Circuit Court ruled in favor of the board and dismissed. Providers appealed.

The Supreme Court held that:

County board correctly interpreted the zoning ordinance’s original definition of a dwelling as permitting only non-transient residential occupancy, and thus short-term lodging providers failed to meet burden of establishing that the board’s actions in amending the ordinance to impose requirements on short-term lodging providers were unreasonable, arbitrary, or capricious; even though first sentence of original definition broadly defined a dwelling, the second sentence modified the residential occupancy requirement, such that only non-transient residential occupancy was permitted in a dwelling, and a necessary corollary to modification was that transient residential occupancy was prohibited in a dwelling.

County zoning ordinance amendment to definition of dwelling was not internally contradictory, and thus amendment was not unconstitutionally vague in violation of due process; original definition of a dwelling did not permit by-right short-term lodging, and amendment did not permit anything more than short-term lodging subject to permitting and other restrictions.

Short-term lodging providers used their properties in the same manner as commercial facilities offering short-term guest rooms, and thus distinction between providers’ properties and commercial facilities were irrelevant in determining whether county code allowed a locality to levy a transient occupancy tax on those properties, where, while the level of ancillary services provided, such as maid service, food service, and other amenities varied greatly for commercial facilities, they all provided a place for people to stay where they could live and sleep, and providers’ residences were likewise offered as an accommodation to people requiring a place to conduct those same activities of daily living.




BONDS - CALIFORNIA

Denny v. Arntz

Court of Appeal, First District, Division 2, California - May 12, 2021 - Not Reported in Cal.Rptr. - 2021 WL 1903766

On July 30, 2019, the San Francisco Board of Supervisors (Board) passed an ordinance providing for a special election on November 5, 2019, for the purpose of submitting to the city’s voters “a proposition to incur bonded indebtedness not to exceed $600 million to finance the construction, development, acquisition, improvement, rehabilitation, preservation, and repair of affordable housing improvements, and related costs necessary or convenient for the foregoing purposes” and related matters.”

The ordinance specified the official language to be included on the ballots as follows: “ ‘SAN FRANCISCO AFFORDABLE HOUSING BONDS. To finance the construction, development, acquisition, and preservation of housing affordable to extremely-low, low- and middle-income households through programs that will prioritize vulnerable populations such as San Francisco’s working families, veterans, seniors, and persons with disabilities; to assist in the acquisition, rehabilitation, and preservation of existing affordable housing to prevent the displacement of residents; to repair and reconstruct distressed and dilapidated public housing developments and their underlying infrastructure; to assist the City’s middle-income residents or workers in obtaining affordable rental or home ownership opportunities including down payment assistance and support for new construction of affordable housing for San Francisco Unified School District and City College of San Francisco employees; and to pay related costs; shall the City and County of San Francisco issue $600,000,000 in general obligation bonds with a duration of up to 30 years from the time of issuance, an estimated average tax rate of $0.019/$100 of assessed property value, and projected average annual revenues of $50,000,000, subject to independent citizen oversight and regular audits?’”

In November 2019, San Francisco voters passed Proposition A, San Francisco Affordable Housing Bonds. Citizen/Appellant brought an action to set aside the measure. His lawsuit alleged various deficiencies in the ballot materials as grounds for contesting the election pursuant to Elections Code section 16100, as well as a claim that the measure violated the California Constitution.

The Court of Appeal held that:

The court also addressed procedural issues, including: res judicata, the inclusion of paid arguments in the voter information guide; maximum word count in the ballot description; whether housing projects should be funded by revenue, as opposed to general obligation, bonds due to the payment of rents; judicial compensation; and jurisdiction.




MUNICIPAL ORDINANCE - ILLINOIS

Word Seed Church v. Village of Hazel Crest

United States District Court, N.D. Illinois, Eastern Division - April 12, 2021 - F.Supp.3d - 2021 WL 1379497

Church and church association brought action against village alleging zoning ordinance that restricted religious land use unreasonably limited First Amendment free exercise rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Fourteenth Amendment and was causing serious, irreparable harm.

Church and association brought motion for preliminary injunction and a declaratory judgment.

The District Court held that:




ANNEXATION - NEBRASKA

Darling Ingredients Inc. v. City of Bellevue

Supreme Court of Nebraska - May 28, 2021 - N.W.2d - 309 Neb. 338 - 2021 WL 2172079

Landowners brought actions to challenge annexation, asking the court to declare the annexation ordinance invalid and to permanently enjoin the city from taking actions to enforce it.

The District Court entered judgment for landowners, and city appealed.

The Supreme Court held that:

Annexation of largely agricultural area was not invalid based on the character of the use, although some of the land within the area had greenbelt tax valuation status; area was not isolated but was near major road and several residential subdivisions, as well as an Air Force base which employed 10,000 people, area contained an industrial plant, city’s comprehensive plan anticipated the area would be used for industrial and other nonagricultural purposes in the future, “for sale” listing for certain land in the area had divided it into several “small industrial lots,” and city had initiated procedures to annex subdivision immediately south of the area.

Due to neighboring baseball complex, largely agricultural area was adjacent and contiguous to the city for purposes of annexation requirements; although prior annexation of baseball complex appeared to be isolated from the rest of the city and created distinct masses within the city, that unchallenged annexation could be used to establish adjacency.




ZONING & PLANNING - VIRGINIA

Historic Alexandria Foundation v. City of Alexandria

Supreme Court of Virginia - May 27, 2021 - S.E.2d - 2021 WL 2149459

Historic preservation group brought action challenging city’s approval of landowner’s applications for permits for the renovation of a historic property in city’s old and historic district.

The Alexandria Circuit Court sustained city’s demurrers and dismissed the challenge, and preservation group appealed.

The Supreme Court held that group did not suffer particularized harm and thus lacked standing.

Historic preservation group lacked standing to challenge city’s approval of landowner’s permits to renovate historic property in city’s old and historic district, as, even assuming that renovation would compromise the integrity of the historic residence located on the property and would diminish the protected open space on the property, the resulting harm would be shared by the public generally, and the group did not suffer any particularized harm; group’s interest in the preservation of historic buildings did not give it standing to challenge the city’s decision.




EMINENT DOMAIN - WISCONSIN

Southport Commons, LLC v. Wisconsin Department of Transportation

Supreme Court of Wisconsin - June 8, 2021 - N.W.2d - 2021 WL 2325008 - 2021 WI 52

Property owner filed an inverse-condemnation claim against the state Department of Transportation (DOT).

The Circuit Court entered judgment on the pleadings for the DOT. Property owner appealed. The Court of Appeals affirmed. Property owner petitioned for review.

The Supreme Court held that the three-year period in which a property owner must file a notice of claim of damages from violation of statute enacted to protect property owners from damage to lands caused by unreasonable diversion or retention of surface waters due to construction of highways or railroad beds begins to run when the damage happens or take place and not when it is discovered.




BANKRUPTCY - CALIFORNIA

In re Venoco LLC

United States Court of Appeals, Third Circuit - May 24, 2021 - F.3d - 2021 WL 2067331

Liquidating trustee appointed under confirmed Chapter 11 plan of debtors, entities that had operated leased offshore oil and gas drilling rig and owned onshore refining facility, filed adversary complaint seeking to recover, on inverse condemnation theory, compensation from the State of California and its Lands Commission for the alleged taking of debtors’ refinery.

State defendants moved to dismiss based on, inter alia, sovereign immunity. The United States Bankruptcy Court for the District of Delaware denied motions, and defendants were granted leave for partial interlocutory appeal. The District Court affirmed. Defendants appealed.

The Court of Appeals held that:

Although states can generally assert sovereign immunity to shield themselves from lawsuits, bankruptcy proceedings are one of the exceptions; by ratifying the Bankruptcy Clause of the United States Constitution, states waived their sovereign immunity defense in proceedings that further a bankruptcy court’s exercise of its jurisdiction over property of the debtor and its estate, also known as “in rem jurisdiction.”

Adversary proceeding in which liquidating trustee appointed under debtors’ confirmed Chapter 11 plan sought to recover, on inverse condemnation theory, compensation from State of California and its Lands Commission for alleged taking of debtors’ oil refinery was brought to effectuate the bankruptcy court’s in rem jurisdiction and was thus claim as to which state had waived its Eleventh Amendment immunity from suit by ratifying Bankruptcy Clause of United States Constitution; though form of action resembled claim for money damages, its function was to decide property rights and so it furthered court’s exercise of jurisdiction over property of debtors and their estates, under the circumstances court’s in rem jurisdiction extended to estate property transferred to trust for purpose of liquidation and distribution to debtors’ creditors, and over which court retained substantial control under the plan, and proceeding also furthered equitable distribution of estate’s assets.

In adversary proceeding in which liquidating trustee appointed under debtors’ confirmed Chapter 11 plan sought to recover, on inverse condemnation theory, compensation from State of California and its Lands Commission for alleged taking of debtors’ oil refinery, both State and Commission could be sued in California courts for their alleged violation of the Takings Clause under the United States or California Constitutions, and so they were not actually immune from liability under California law.




EMINENT DOMAIN - GEORGIA

D. Rose, Inc. v. City of Atlanta

Court of Appeals of Georgia - May 20, 2021 - S.E.2d - 2021 WL 2010139

Property owner filed inverse condemnation action alleging that city’s setback requirements in its zoning code effectively deprived it of all economic use of property.

The trial court entered summary judgment in city’s favor, and owner appealed.

The Court of Appeals held that it was not city’s 60-foot setback restriction, by itself, that deprived owner of all economic use of property.

It was not city’s 60-foot setback restriction, by itself, that deprived owner of all economic use of property, and thus city’s denial of its request for variance was not taking, even though owner was unable to build residence on property without variance due to restriction in conjunction with 100-year floodplain and several sewer easements and sewer lines on rear 2/3 of property.




ZONING & PLANNING - ILLINOIS

Word Seed Church v. Village of Hazel Crest

United States District Court, N.D. Illinois, Eastern Division - April 12, 2021 - F.Supp.3d - 2021 WL 1379497

Church and church association brought action against village alleging zoning ordinance that restricted religious land use unreasonably limited First Amendment free exercise rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Fourteenth Amendment and was causing serious, irreparable harm.

Church and association brought motion for preliminary injunction and a declaratory judgment.

The District Court held that:




ZONING & PLANNING - ILLINOIS

Medponics Illinois, LLC v. Department of Agriculture

Supreme Court of Illinois - May 20, 2021 - N.E.3d - 2021 IL 125443 - 2021 WL 2005476

After the Illinois Department of Agriculture (DOA) denied its application for permit to operate medical cannabis cultivation center in particular Illinois State Police (ISP) district and instead awarded permit to competitor, applicant petitioned for administrative review of DOA’s decision, asserting that competitor’s application contained disqualifying flaw, namely, that its proposed cultivation center was within 2,500 feet of area zoned “exclusively” for residential use, in violation of the Compassionate Use of Medical Cannabis Pilot Program Act.

The Circuit Court reversed. Competitor and DOA appealed. The Appellate Court reversed judgment of circuit court and ordered permit reinstated to competitor. Applicant’s petition for leave to appeal was allowed.

The Supreme Court held that:




ZONING & PLANNING - NEW YORK

West 58th Street Coalition, Inc. v. City of New York

Court of Appeals of New York - May 27, 2021 - N.E.3d - 2021 WL 2144169 - 2021 N.Y. Slip Op. 03346

Objectors commenced article 78 proceeding, challenging determination by the Department of Buildings (DOB) that classified nine-story building proposed for employment shelter for homeless men as a “class A” multiple dwelling with an “R-2” occupancy group, grandfathered from compliance with current building code.

The Supreme Court, New York County, denied petition and dismissed proceeding. Objectors appealed. The Supreme Court, Appellate Division, affirmed as modified by remitting to Supreme Court with the direction to conduct a hearing on whether the building’s use was consistent with general safety and welfare standards. Objectors appealed.

The Court of Appeals held that:

Department of Buildings’ (DOB) classification of nine-story building proposed for employment shelter for homeless men as a “class A” multiple dwelling with an “R-2” occupancy group, which includes buildings occupied for permanent residence purposes, and grandfathering building from compliance with current building code, was rational; the building’s “R–2” classification was based on evidence that residents would occupy their dwelling units, on average, for at least 30 days given the nature of the services and programs that would be offered there.

In reviewing decision by Department of Buildings (DOB) that classified nine-story building proposed for employment shelter for homeless men as a “class A” multiple dwelling with an “R-2” occupancy group, grandfathered from compliance with current building code, Court of Appeals was precluded from remitting action to Supreme Court for plenary judicial proceedings on whether building’s use as a homeless shelter was consistent with general safety and welfare standards after Court of Appeals had found that classification determination had a rational basis in article 78 proceeding pursuant to which the scope of review did not extend past question of whether challenged determinations were irrational, which was a question of law.

Upon concluding that an authorized agency has reviewed a matter applying the proper legal standard and that its determination has a rational basis, a court cannot second guess that determination by granting a hearing to find additional facts or consider evidence not before the agency when it made its determination.

 

 




PUBLIC MEETINGS - OHIO

State ex rel. Fritz v. Trumbull County Board of Elections

Supreme Court of Ohio - May 27, 2021 - N.E.3d - 2021 WL 2154706 - 2021-Ohio-1828

Relators filed petition for writ of prohibition to prevent county board of elections and its members from holding special recall election to remove a member from city council, and a petition for writ of mandamus ordering the board to remove the recall election from the ballot.

The Supreme Court held that:




EMINENT DOMAIN - GEORGIA

City of Atlanta v. Carlisle

Court of Appeals of Georgia - May 17, 2021 - S.E.2d - 2021 WL 1960198

Homeowners brought action against the city for trespass, nuisance, a “per se” taking, and inverse condemnation, after discovering underground sanitary sewer and storm lines traversing their property.

Homeowners and city moved for summary judgment. The trial court granted partial summary judgment to the homeowners on the issue of liability and denied the city’s motion. City appealed, arguing that the claims were time barred.

The Court of Appeals held that sewer and storm lines constituted a permanent and nonabatable nuisance, and thus trespass occurred and nuisance was created, triggering accrual of statute of limitations, when sewer and storm lines were installed on property.

Sewer and storm lines constituted a permanent and nonabatable nuisance, and thus trespass occurred and nuisance was created, beginning four-year statute of limitations period for homeowners’ claims for trespass, nuisance, “per se” taking, and inverse condemnation, when sewer and storm lines were installed on property, even though homeowners were not aware of lines for decades; damage or destruction alleged to have been caused by installation of lines was completed at installation, installation was both a substantial and relatively enduring feature of plan of construction, lines were already in place when homeowners purchased their property nearly twenty years before, and homeowners were aware of lines for more than four years before filing suit.




BONDS - ILLINOIS

Tillman v. Pritzker

Supreme Court of Illinois - May 20, 2021 - N.E.3d - 2021 IL 126387 - 2021 WL 2005481

Taxpayer filed a petition for leave to file a taxpayers’ suit to restrain and enjoin state officials, including the governor, from disbursing public funds for two general obligation bonds that taxpayer alleged were unconstitutional.

After a hearing on the petition, the Circuit Court entered a written order denying the petition. Taxpayer appealed. The Appellate Court reversed and remanded. State officers’ petition for leave to appeal was granted.

The Supreme Court held that there was no “reasonable ground” for filing the taxpayer petition to restrain and enjoin disbursement of public funds for the bonds.

The necessary elements for laches were satisfied, and therefore, there was no “reasonable ground” for filing taxpayer petition to restrain and enjoin state officials, including the governor, from disbursing public funds for two general obligation bonds that he alleged were unconstitutional; taxpayer had constructive notice of the dates statutes were enacted to authorize the bonds and of the dates the bonds were issued, but he offered no excuse for why he waited until 16 years after first bond authorization to file his action, such that his delay was unreasonable, and further, officials suffered prejudice as a result of the delay, as the state had already expended billions of dollars and made irrevocable transactions rendering it impossible to return to the status quo.




LIABILITY - INDIANA

Flores v. City of South Bend

United States Court of Appeals, Seventh Circuit - May 12, 2021 - F.3d - 2021 WL 1903225

Personal representative of motorist who died when struck by patrol car driven by police officer filed action against officer and city under § 1983 and associated state laws, asserting that officer violated motorist’s substantive due process rights and that the city was liable under Monell.

The United States District Court granted defendants’ motion to dismiss for failure to state a claim and denied personal representative leave to amend. Personal representative appealed.

The Court of Appeals held that:




PUBLIC UTILITIES - IOWA

Xenia Rural Water District v. City of Johnston

Supreme Court of Iowa - May 7, 2021 - N.W.2d - 2021 WL 1822780

Rural water district, which sought to service areas within two miles of city, brought action against city asserting § 1983 claim based on alleged violation of provision of Consolidated Farm and Rural Development Act prohibiting municipalities from encroaching upon federally-indebted utilities, and seeking, among other forms of relief, an injunction and declaratory judgment.

City counterclaimed, seeking an injunction and declaration as to parties’ legal rights to service disputed areas.

The United States District Court granted partial summary judgment to district as to areas beyond two miles of city limits and granted partial summary judgment to city as to areas within two miles of city limits. District filed a motion for reconsideration, and the District Court certified three questions to the Iowa Supreme Court.

The Supreme Court held that:




BONDS - MINNESOTA

Matter of Trusteeship under Indenture of Trust, dated as of September 1, 1996.

Court of Appeals of Minnesota - April 19, 2021 - Not Reported in N.W. Rptr. - 2021 WL 1522479

City Industrial Development Agency (the IDA) is the fee owner of a property (the Facility). The IDA issued industrial development revenue bonds (the Bonds) in the amount of $5.7 million to finance the Gemma Development Company’s acquisition and renovation of the Facility. The Bonds were payable from, and secured by, funds generated by the Facility. The Bonds had a maturity date of March 20, 2018.

The IDA created a trust (the Trust) via an indenture of trust (the Indenture) dated September 1, 1996, for the purpose of receiving funds and paying the Bonds. Wells Fargo Bank, National Association (Trustee), is the successor trustee of the Trust. In a concurrent lease agreement (the Lease) dated September 1, 1996, the IDA leased the Facility to Gemma. The Lease required Gemma to “pay or cause to be paid basic rent for the Facility on or before each monthly Bond Payment Date directly to the Trustee, in an amount equal to the Debt Service Payment becoming due and payable on the Bond on such Bond Payment Date.” Gemma then sublet the Facility to the County via a sublease agreement (the Sublease). Pursuant to an assignment of rents, rent under the Sublease was payable “directly from Sublessee [Orange County] to the Trustee.”

In 2006, Gemma received a loan from respondent M&T Bank Corporation in exchange for a mortgage on the Facility and an assignment of rents and leases. Gemma defaulted on loan payments, and in 2008, M&T initiated foreclosure proceedings. In 2010, Gemma abandoned the Facility, but Orange County continued making monthly rent payments directly to the Trustee.

The Bonds matured and the Lease terminated by its terms on March 20, 2018. The Trustee paid the Bondholders. On April 30, 2019, the Trustee filed a petition in district court pursuant to what is now Minn. Stat. § 501C.0202(24) (2020) seeking an order directing the Trustee’s distribution of $351,507.37 in remaining funds.

On September 30, 2019, the Trustee filed an amended petition regarding the disposition of the reduced net remaining balance of $325,935.19. The IDA and M&T filed separate objections and claimed the right to disbursement of the net remaining balance. M&T claimed it was entitled to the funds based on its mortgage and assignment of rents with Gemma. The IDA meanwhile argued that, because the net remaining balance was generated by Orange County’s rent payments, the IDA was entitled to the funds.

On April 24, 2020, the district court issued its order for the distribution of the net remaining balance. The district court concluded that the Trustee was entitled to its fees and expenses and that neither M&T nor the IDA were entitled to the net remaining balance.

The IDA argued that it was Gemma’s successor because Gemma abandoned the property without consummating the purchase of the Facility, thereby surrendering its rights under the Lease and any interest in the net remaining balance to the IDA.

The district court denied the IDA’s motion. It explained that “[t]he terms successors and assigns are commonly used in the context of corporate mergers and acquisitions transactions or transactions involving the sale of the assets of an entity.” It reasoned that, in the context of the Bond Documents, the phrase referred “to the circumstances of a transaction involving the sale of Gemma or the sale of Gemma’s assets …. [T]he parties agree Gemma is a corporation that has not been dissolved and Gemma’s assets have not been sold. Thus, the IDA is not Gemma’s successor or assign.” The district court likewise concluded that the IDA was not Gemma’s successor in interest. It explained that the term meant “[s]omeone who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance.” The district court concluded that, because Gemma’s right to the net remaining balance was not premised on its ownership of the Facility, the IDA’s fee-theory asserted a different right.

An appeal followed.

The Court of Appeals began its analysis by stating that, “The district court concluded that Gemma was entitled to the net remaining balance pursuant to the clear language of the Indenture and Lease and because the IDA was not Gemma’s successor. The IDA acknowledges that the Indenture and Lease identify ‘Gemma … and its successors and assigns’ as the ‘Company’ entitled to the net remaining balance. But the IDA argues that it became Gemma’s successor upon either Gemma’s abandonment of the Facility in 2010 or upon the expiration of the Lease in 2018.”

“Additionally, neither the Indenture nor the Lease conditioned Gemma’s entitlement to the net remaining balance on either: (1) the nonexistence of any event of default, or (2) Gemma’s ongoing occupancy of the Facility. Instead, the only preconditions to the disbursement of the net remaining balance were the payments of the Bonds, fees, charges, and expenses.”

“Because we conclude that the district court properly read the relevant provisions of the documents, and because the district court’s decision was consistent with its reading of those documents, we discern no abuse of discretion by the district court and affirm the order instructing the Trustee regarding the distribution of the net remaining balance.”




EMINENT DOMAIN - OHIO

Harrison v. Montgomery County, Ohio

United States Court of Appeals, Sixth Circuit - May 11, 2021 - F.3d - 2021 WL 1881382

Owner of property foreclosed for failure to pay taxes brought putative § 1983 class action against county, asserting takings claims under the Fifth and Fourteenth Amendments, alleging that county transferred properties to a land reutilization corporation without providing compensation for value that exceeded tax liabilities.

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

The Court of Appeals held that:

Ohio claim preclusion law did not bar property owner’s § 1983 federal takings claims challenging county’s seizure of surplus equity, an amount in excess of taxes owed, through Ohio’s land bank foreclosure statute whereby county transferred clear title to owner’s property to a land bank; federal takings claim was not ripe until county Board of Revision’s final decision adjudicating foreclosure of owner’s property and transfer of property to land bank.

Tax Injunction Act did not bar property owner’s § 1983 takings claims challenging county’s seizure of surplus equity, an amount in excess of taxes owed, through Ohio’s land bank foreclosure statute whereby county transferred clear title to owner’s property to a land bank; property owner did not challenge Ohio’s collection of delinquent taxes and did not seek to halt foreclosures of tax-delinquent property or seek to get home back.

Comity principles did not compel federal court abstention from property owner’s § 1983 takings claims challenging county’s seizure of surplus equity, an amount in excess of taxes owed, through Ohio’s land bank foreclosure statute whereby county transferred clear title to owner’s property to a land bank, since property owner challenged only Ohio’s extinguishment of surplus equity, not its foreclosure of tax-delinquent property.

Remand from appellate court was warranted for district court to consider property owner’s § 1983 takings claim in the first instance, challenging county’s seizure of surplus equity, an amount in excess of taxes owed, through Ohio’s land bank foreclosure statute whereby county transferred clear title to owner’s property to a land bank; neither Tax Injunction Act nor comity principles barred challenge.




SCHOOL FINANCE - OHIO

State ex rel. Horizon Science Academy of Lorain, Inc. v. Ohio Department of Education

Supreme Court of Ohio - May 19, 2021 - N.E.3d - 2021 WL 1992212 - 2021-Ohio-1681

Community schools that were operated by a foreign corporation filed petition for writ of mandamus directing Ohio Department of Education (ODE), the governor, and other state officials to approve schools’ applications for Quality Community School Support (QCSS) program grants and accordingly award each school $1,750 for each economically disadvantaged student and $1,000 for other students enrolled for the fiscal year.

The Supreme Court held that:

Definition of “good standing” for community-school operators under Quality Community School Support (QCSS) program, which provided grant funding of $1,750 or $1,000 per student to a school designated as a “Community School of Quality” depending on whether the student was economically disadvantaged, related solely to the operator’s standing as a qualified and effective operator of community schools, not corporate registration with the Secretary of State.

Community schools established that they had clear legal right to Quality Community School Support (QCSS) program funding grants and a clear legal duty on the part of the Ohio Department of Education (ODE) to provide them, and therefore, schools were entitled to writ of mandamus ordering ODE to approve their grant applications and award them QCSS-grant funding, where schools’ operator satisfied each of the good-standing criteria pertaining to operators.




ZONING & PLANNING - CALIFORNIA

Kracke v. City of Santa Barbara

Court of Appeal, Second District, Division 6, California - May 4, 2021 - Cal.Rptr.3d - 2021 WL 1746301 - 21 Cal. Daily Op. Serv. 4342 - 2021 Daily Journal D.A.R. 4377

Manager of short-term vacation rentals filed petition for writ of mandate commanding city to allow short-term vacation rentals in its coastal zone as it had done before instituting new policy that banned such rentals in the coastal zone.

The Superior Court, Ventura County granted the petition. City appealed.

The Court of Appeal held that city’s ban on short-term vacation rentals in the coastal zone constituted a “development” under the Coastal Act that required a coastal development permit (CDP) or an amendment to its certified local coastal program (LCP).

City’s enforcement of a ban on short-term vacation rentals in its coastal zone constituted a “development” under the Coastal Act and, as such, city was required to obtain a coastal development permit (CDP) or an amendment to its certified local coastal program (LCP) prior to instituting the ban, where city had previously allowed such rentals in the coastal zone, and by changing that policy, it necessarily changed the intensity and use of and access to land and water in the coastal zone, which was inconsistent with the Coastal Act’s goals of providing low-income families with access to visit the coast.




DUMBASSERY - MASSACHUSETTS

Commonwealth v. Tinsley

Supreme Judicial Court of Massachusetts, Berkshire - May 6, 2021 - N.E.3d - 487 Mass. 380 - 2021 WL 1803606

Defendant was convicted in the Superior Court Department of armed home invasion and other offenses.

After his convictions were affirmed, his motion for new trial was granted and his armed home invasion conviction was vacated. State appealed.

The Supreme Judicial Court held that:




ANNEXATION - MISSISSIPPI

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

Supreme Court of Mississippi - May 6, 2021 - So.3d - 2021 WL 1807424

Residents of unincorporated community neighboring city petitioned for incorporation. Subsequently, city petitioned to annex five areas of unincorporated territory in same county.

After consolidating the incorporation and annexation proceedings, the Chancery Court granted incorporation petition in part and annexation petition in part. Objectors appealed, and city cross-appealed.

The Supreme Court held that:

Signatures from original petition to incorporate new municipality counted in determining whether amended petition met statutory requirement of signatures of two-thirds of qualified electors residing in proposed incorporation area, even though petitioners did not attach signatures to amended petition, where grant of petitioners’ motion to amend petition was for limited purpose of correcting a legal description to match city’s map, and amended petition referred back multiple times to original petition, which included numerous lists of signatures.

A certified copy of voter roll is starting point for determining registered voters as part of a determination of whether a petition to incorporate new municipality contains requisite signatures of two-thirds of qualified electors residing in proposed incorporation area, and a voter’s address on roll is the most viable record of whether a voter resided in proposed incorporation area on date of filing.

Chancellor did not manifestly err in determining that petition to incorporate new municipality contained requisite signatures of two-thirds of qualified electors residing in proposed incorporation area, even though voter roll provided by county on date of initial filing was incomplete because it did not contain inactive voters, where chancellor, in his own analysis based on all testimony, accepted petitioners’ methodology of accounting for known voters by canvassing area and unknown voters by a process known as reverse engineering voter roll, chancellor calculated margin or cushion of qualified electors, and chancellor used methodology based on a rationale used by county election commission, as well as that used throughout state, when attempting to purge voters.

While voter rolls are the most viable evidence for determining registered voters as part of a determination of whether a petition to incorporate new municipality contains requisite signatures of two-thirds of qualified electors residing in proposed incorporation area, citizens seeking incorporation may offer evidence that voters appearing on voter rolls have died, have moved, or otherwise have become ineligible to vote.

To determine reasonableness of annexation, a court considers: (1) need for expansion; (2) path of growth; (3) potential health hazards; (4) city’s financial ability to make improvements and furnish municipal services; (5) need for zoning and overall planning; (6) need for municipal services; (7) natural barriers; (8) past performance and time element involved in city’s provision of services to present residents; (9) economic or other impact of annexation upon those who live in or own property in annexation area; (10) impact of annexation upon voting strength of protected minority groups; (11) whether property owners and other inhabitants have enjoyed economic and social benefits of city without paying fair share of taxes; and (12) any other factors that may suggest reasonableness.

Factors for determining whether a city has a need for expansion, as a factor for determining reasonableness of annexation, include: (1) spillover development into proposed annexation area; (2) city’s internal growth; (3) city’s population growth; (4) city’s need for development land; (5) need for planning in annexation area; (6) increased traffic counts; (7) need to maintain and expand city’s tax base; (8) limitations due to geography and surrounding cities; (9) remaining vacant land within city; (10) environmental influences; (11) city’s need to exercise control over proposed annexation area; and (12) increased new building permit activity.

City had need to expand with respect to two of five areas of unincorporated territory that it sought to annex, so as to support finding that city’s proposed annexation was reasonable with respect to those areas, even though city had vacant land within its boundaries and a declining population, where two areas had significant residential development that spilled over from city at a very dense level, unlike the other three areas, and citizens in two areas received benefit of water, sewer services, electricity, natural gas, police response, fire response, and emergency response without having to pay ad valorem taxes to help city fund the large expenses incurred to provide services.

Factors for determining a city’s path of growth, as a factor for determining reasonableness of annexation, include: (1) spillover development in annexation area; (2) annexation area immediately adjacent to city; (3) limited area available for expansion; (4) interconnection by transportation corridors; (5) increased urban development in annexation area; (6) geography; and (7) subdivision development.

The “path of growth” factor for determining reasonableness of city’s proposed annexation of five areas of unincorporated territory weighed in favor of annexation for first and second areas, was neutral for third and fourth areas, and weighed against annexation of fifth area, where first and second areas had significant spillover residential development, third and fourth areas contained a mix of commercial and residential development with no spillover, fifth area contained commercial development with no spillover, city provided services to first four areas, and third through fourth areas lay, at best, in potential growth paths for city unlike first and second areas which were an active path of growth.

Potential health hazards from sewage and waste disposal existed in proposed annexation areas, as a factor for determining reasonableness of city’s proposed annexation of five areas of unincorporated territory, and those potential hazards were worthy of remedy, annexation or otherwise.

Factors for evaluating a city financial ability to make the improvements and furnish municipal services promised, as a factor for determining reasonableness of annexation, include (1) city’s present financial condition; (2) sales tax revenue history; (3) recent equipment purchases; (4) financial plan and department reports proposed for implementing and fiscally carrying out annexation; (5) fund balances; (6) city’s bonding capacity; and (7) expected amount of revenue to be received from taxes in annexed area.

City had reasonable financial ability for proposed annexation with respect to two of five areas of unincorporated territory that city sought to annex, so as to support finding that annexation was reasonable with respect to those two areas, which had significant spillover residential development; although city had recent budget cuts and violations of state audit and budget laws, city also a history of stable sales tax revenues, city’s bond capacity was healthy, and an expert projected that annexation would generate net general-fund revenues which would be added to city’s debt-service-fund balance.

City’s proposed annexation was reasonable in terms of fairness and equity as to the two proposed areas that had significant spillover residential development unlike the three other proposed areas, even though city had highest millage rate in county, where financial impact resulting from city taxes would be offset by savings on both homeowners-insurance premiums and on certain county-tax levies that could potentially be eliminated, residents in annexed areas would begin receiving their water and sewer services at in-city rates which would result in savings on utility bills, and annexation would result in a de minimis tax increase to owners of vacant or agricultural land.




ZONING & PLANNING - MONTANA

Hartshorne v. City of Whitefish

Supreme Court of Montana - May 11, 2021 - P.3d - 2021 WL 1884148 - 2021 MT 116

Residents brought action for declaratory relief, challenging city ordinance permitting commercial development of certain area through a conditional use permit, instead of a planned unit development, as illegal spot zoning and as violating uniformity requirements.

The District Court granted summary judgment to residents on uniformity claim and struck certain conditional commercial uses, but denied summary judgment on spot zoning claim. Developer appealed, and residents cross-appealed.

The Supreme Court held that:

Ordinance allowing for commercial use, through conditional use permit, in on certain parcel where the prevailing use was residential was not improper spot zoning, where neighborhood plan, which was adopted before the zoning ordinance, specifically contemplated “commercial uses intended to be complimentary to the proposed development of the neighborhood,” while ordinance changed the discretionary review process from a planned unit development to a conditional use permit, both processes were similar and required review for neighborhood compatibility, and parcel affected by the ordinance, although small and owned by single developer, was same size as it was when the neighborhood plan designated it for mixed-use.

Ordinance which rezoned parcel in largely residential area to preserve developer’s opportunity to seek commercial development through a conditional use permit after the planned unit development process became unavailable did not violate uniformity requirements; district to which statute applied were not the “use districts” in the city code but rather were the “districts” on the city’s zoning map to which the use districts ware applied, and parcel was in its own zoning district such that the zoning ordinance was uniformly applied within that district.




MUNICIPAL CORPORATIONS - TEXAS

In re City of Galveston

Supreme Court of Texas - May 7, 2021 - S.W.3d - 2021 WL 1822939

Municipality petitioned for writ of mandamus to compel state officials to refer claim for reimbursement of settlement with contractor that performed disaster relief work to State Office of Administrative Hearings (SOAH) for administrative law judge to hear it.

The Supreme Court held that:




EMINENT DOMAIN - WYOMING

EME Wyoming, LLC v. BRW East, LLC

Supreme Court of Wyoming - May 10, 2021 - P.3d - 2021 WL 1850890 - 2021 WY 64

Oil and gas company brought action under Eminent Domain Act seeking access to landowners’ property for stated purpose of gathering data to evaluate its suitability for condemnation.

The District Court entered orders allowing company access to survey and gather data but barring company from using the collected information to file application for permit to drill. Company appealed and landowners cross-appealed.

The Supreme Court held that:

Eminent Domain Act provision allowing entry onto real property to gather data to determine property’s suitability for condemnation is not intended to be a device by which an entity may obtain access to determine if it wants to acquire mineral ownership in the area; a party seeking access under Act must show that it owns development rights to landlocked minerals and that the data it seeks to collect relates to that interest and will be used for its development.

Oil and gas company failed to show that it owned right to develop landlocked minerals that it could not access without condemning property, and therefore company did not qualify as a “condemnor” under Eminent Domain Act provision allowing entry onto real property to gather data to determine property’s suitability for condemnation, despite claim that company had 22,000 acres of holdings which were a combination of leases and options to lease, where record did not identify the percentage of either or their precise locations.

Data gathered from landowners’ properties by oil and gas company that had non-condemnor status, in violation of Eminent Domain Act provision allowing entry onto real property to gather data to determine property’s suitability for condemnation, could not be used for any purpose including in support of a condemnation action; data was not lawfully in company’s possession.




LIABILITY - CONNECTICUT

Pollard v. City of Bridgeport

Appellate Court of Connecticut - April 27, 2021 - A.3d - 204 Conn.App. 187 - 2021 WL 1603610

Pedestrian who tripped and fell on city sidewalk sued city and owner of land abutting sidewalk, bringing negligence claims against both defendants and a nuisance claim against landowner. Abutting landowner moved for summary judgment.

The Superior Court granted motion. Pedestrian appealed.

The Appellate Court held that:

Owner of land abutting city sidewalk owed no duty of care to pedestrian who tripped and fell on sidewalk and, therefore, was not liable in negligence for pedestrian’s injuries, even though growth of tree roots on owner’s land caused sidewalk to be uneven; growth of tree roots was not an affirmative act, there was no evidence as to how the tree came to grow on owner’s land, and there was no evidence that reasonable care would have revealed that the tree root was the cause of the uneven sidewalk.

Pedestrian who tripped and fell on uneven city sidewalk could not establish nuisance claim against owner of land abutting the sidewalk, even if growth of tree roots on owner’s land caused the sidewalk to be uneven; allowing tree to grow was not an affirmative act and was not an unreasonable or unlawful use of the land, and regardless of whether landowner knew about the uneven sidewalk, it was not under landowner’s ownership or control, but under city’s, so that city had duty to maintain and repair it.




BALLOT INITIATIVE - ILLINOIS

McHenry Township v. County of McHenry

Appellate Court of Illinois, Second District - April 15, 2021 - N.E.3d - 2021 IL App (2d) 200478 - 2021 WL 1422748

Township sued county and county clerk for writ of mandamus or mandatory injunctive relief, seeking to have clerk place on township’s general election ballot a referendum proposition, initiated by township’s board of trustees, to dissolve township. County filed motion to dismiss township’s complaint, with prejudice.

The Circuit Court granted county’s motion. Township appealed.

The Appellate Court held that:

Question at issue in township’s appeal—whether county clerk had authority to reject township’s dissolution ballot proposal on basis that township filed proposal within 23 months of prior, identical proposition—involved substantial public interest, thus warranting appellate review that was otherwise rendered moot by passing of election in which township sought to have proposal placed on ballot; question on appeal was election-law issue that was inherently a matter of public concern, a ruling by the reviewing court would aid local election officials and lower courts in deciding nature of county clerk’s duties under relatively new election-law statute, and question was likely to recur, given there had been two attempts to dissolve township within one year.

County clerk impermissibly looked beyond four corners of township’s filings when clerk rejected township’s referendum proposition to dissolve township, on grounds that identical proposition had been presented to voters within 23-month statutory period, and therefore trial court erred in dismissing township’s complaint in which it sued county and clerk for writ of mandamus or mandatory injunctive relief; from face of township’s filings, clerk could not have known that proposition with identical wording, except for dissolution date, had been presented to voters months earlier, and determining whether proposition had previously appeared on township ballot within statutorily prescribed timeframe was not ministerial task, as it constituted assessment of content of filings.




EMPLOYMENT - MARYLAND

Brown v. Washington Suburban Sanitary Commission

Court of Special Appeals of Maryland - May 3, 2021 - A.3d - 2021 WL 1731690

Employee, whose termination from Washington Suburban Sanitary Commission was upheld by the Office of Administrative Hearings (OAH), filed petition for judicial review.

The Circuit Court dismissed petition and denied employee’s motions to alter or amend and to revise the court’s judgment, and employee appealed.

The Court of Special Appeals held that:

Washington Suburban Sanitary Commission was the agency that mattered, and not Office of Administrative Hearings (OAH), for purposes of rule providing that agency shall transmit to the clerk of the circuit court the original or a certified copy of the record of its proceedings within 60 days after agency receives petition for judicial review; Commission employed employee, paid her checks, suspended her, and made the decision to terminate her, and although that decision was upheld on appeal after a hearing conducted by OAH, the agency action that employee petitioned the circuit court to review was Commission’s decision.

Employee’s petition for judicial review of decision of the Office of Administrative Hearings (OAH) upholding Washington Suburban Sanitary Commission’s termination of employee should not have been dismissed for employee’s failure to transmit the record to circuit court; Commission could have required employee to order and pay for the transcript, but the record did not reveal how or where or any other basis on which to shift Commission’s responsibility to employee to transmit the record to the circuit court.




PUBLIC UTILITIES - MINNESOTA

Matter of Minnesota Power's Petition for Approval of EnergyForward Resource Package

Supreme Court of Minnesota - April 21, 2021 - N.W.2d - 2021 WL 1556816

Objectors sought review of Public Utilities Commission’s (PUC) order, 2019 WL 356543, approving electric utility’s affiliated-interest agreements governing construction and operation of natural gas power plant in neighboring state without environmental review, environmental assessment worksheet (EAW), or environmental impact statement (EIS) under Minnesota Environmental Policy Act (MEPA).

The Court of Appeals reversed and remanded. Utility petitioned for review, which was granted.

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

Statute requiring Public Utilities Commission’s (PUC) approval of affiliated-interest agreements between a public utility and an affiliated interest does not require environmental review, an environmental assessment worksheet (EAW), or an environmental impact statement (EIS) before PUC approval.

Public Utilities Commission’s (PUC) approval of electric utility’s affiliated-interest agreements governing construction and operation of natural gas power plant in neighboring state was not a project causing environmental effects, and thus Minnesota Environmental Policy Act (MEPA) did not apply and no MEPA review, environmental assessment worksheet (EAW), or environmental impact statement (EIS) was needed for PUC approval; PUC’s approval of the agreements did not grant a permit, did not approve construction or operation of plant, and did not authorize utility to proceed forward in other state.

A “but for” causal relationship is insufficient to make agency responsible for particular environmental effect under Minnesota Environmental Policy Act (MEPA); the line that must be drawn requires a reasonably close causal relationship between environmental effect and the alleged cause.




IMMUNITY - PENNSYLVANIA

Wise v. Huntingdon County Housing Development Corporation

Supreme Court of Pennsylvania - April 28, 2021 - A.3d - 2021 WL 1661243

Pedestrian brought personal injury action against public housing entities, after she fell and was injured walking on sidewalk in front of public housing development around midnight, alleging that insufficient outdoor lighting in the sidewalk area created a dangerous condition.

The Court of Common Pleas granted summary judgment in favor of housing entities. Pedestrian appealed. The Commonwealth Court affirmed. Petition for discretionary review was granted.

The Supreme Court held that real estate exception to sovereign immunity applied to pedestrian’s claim, as a matter of law.

Alleged insufficient outdoor lighting adjacent to sidewalk in front of public housing development, stemming from existence and location of light pole, tree, and sidewalk, created allegedly dangerous condition of Commonwealth realty, so that real estate exception to sovereign immunity applied to permit personal injury claim against public housing entities brought by pedestrian who was injured when she fell while walking on sidewalk in front of public housing development around midnight.




TAX - CONNECTICUT

Town of Ledyard v. WMS Gaming, Inc.

Supreme Court of Connecticut - April 21, 2021 - A.3d - 2021 WL 1567671

Town brought action to collect unpaid personal property taxes for gaming equipment that was owned by company and that was leased to tribal nation for use in its gaming operations. Action was stayed pending the outcome of action in federal court in which tribal nation challenged state’s and town’s authority to tax the equipment.

After federal proceedings concluded, parties executed a stipulation that company would pay all outstanding taxes, accrued interest, and penalties, and that town was entitled to attorney’s fees and costs incurred in state action.

Town and company filed motions for summary judgment as to company’s liability for attorney’s fees with respect to the federal action. The Superior Court denied company’s motion and granted town’s motion. Company appealed before a ruling on town’s motion for attorney’s fees. The Appellate Court granted town’s motion to dismiss appeal on the grounds that there was no appealable final judgment. The Supreme Court reversed and remanded. On remand, the Appellate Court reversed and remanded. Town petitioned for certification, which was granted.

The Supreme Court held that federal action was “as a result of and directly related to” state collection proceeding, allowing award to town of attorney’s fees incurred in federal action.

Federal action in which tribal nation, as lessee of gaming equipment, challenged town’s authority to tax the equipment was “as a result of and directly related to” town’s state court action against equipment owner to collect delinquent personal property taxes for the equipment, allowing award to town of attorney’s fees incurred in federal action, even though equipment owner was not formally a party to federal action, where federal action was commenced after town initiated state collection proceeding, and federal action was commenced for purpose of challenging town’s authority to pursue state collection action.




ELECTIONS - ILLINOIS

Corbin v. Schroeder

Supreme Court of Illinois - April 27, 2021 - N.E.3d - 2021 IL 127052 - 2021 WL 1619490

Objector petitioned for judicial review of Electoral Board’s denial of objector’s challenge to nominating petitions filed by candidates for village president that did not contain statutory minimum number of signatures from persons who voted in most recent election, based on determination that candidates reasonably relied on representations by village president that, presumably due to COVID-19 pandemic, candidates needed to obtain signatures from only one percent of voters.

The Circuit Court affirmed, and objector appealed. The Appellate Court affirmed. Objector filed petitions for leave to appeal. Petitions were granted and consolidated.

The Supreme Court held that statute governing signature requirements for nominating petitions for candidate for village president was mandatory and required strict compliance, regardless of whether candidates may have relied on representations of village clerk to contrary, overruling Merz v. Volberding, 94 Ill. App. 3d 1111, 50 Ill.Dec. 520, 419 N.E.2d 628, and Atkinson v. Schelling, 370 Ill.Dec. 502, 988 N.E.2d 700.




LIABILITY - MINNESOTA

Reetz v. City of Saint Paul

Supreme Court of Minnesota - March 17, 2021 - 956 N.W.2d 238

Police officer petitioned for writ of certiorari, to challenge city’s determination that officer was not entitled to defense and indemnification in connection with a personal-injury lawsuit alleging that his conduct while providing security for a homeless shelter caused or contributed to injuries from a stabbing incident.

The Court of Appeals reversed. City petitioned for review.

The Supreme Court held that:

City’s decision not to defend and indemnify its employee in connection with a personal-injury lawsuit alleging that his conduct while providing security for a homeless shelter caused or contributed to injuries from a stabbing incident was a quasi-judicial decision that could only be reviewed by writ of certiorari; there was a genuine dispute over whether the officer was entitled to defense and indemnification, the city gathered and weighed evidence to reach a decision on the issue, the process used by the city resembled a judicial proceeding, and the statute governing indemnification of city employees did not provide for a right of review.

City had no duty to defend and indemnify police officer in connection with a personal-injury lawsuit alleging that his conduct while providing security for a homeless shelter caused or contributed to injuries from a stabbing incident; the police officer, who, while acting as a security officer, was searching persons and their belongings for weapons and alcohol, would have had no authority as a police officer to confiscate a knife from shelter’s client, and was instead, acting in a purely private capacity.




MUNICIPAL ORDINANCE - NORTH DAKOTA

City of Jamestown v. Casarez

Supreme Court of North Dakota - April 20, 2021 - N.W.2d - 2021 WL 1540414 - 2021 ND 71

Following denial of his motion to suppress, defendant entered conditional guilty plea in the District Court to refusing to take a chemical breath test. Defendant appealed.

The Supreme Court held that:




BALLOT INITIATIVE - OHIO

State ex rel. Gil-Llamas v. Hardin

Supreme Court of Ohio - April 29, 2021 - N.E.3d - 2021 WL 1686419 - 2021-Ohio-1508

Petitioners sought a writ of mandamus to compel members of city council to submit to electors a proposed municipal ordinance initiative on primary election ballot.

The Supreme Court held that:

City council abused its discretion when it determined initiative petition for proposed municipal ordinance failed to comply with city charter’s title requirement for proposed ordinances; proposed ordinance’s title, which was more than 150 words long, sufficiently described substance of proposed ordinance as it stated ordinance would require city auditor to transfer from general fund $10 million to “Energy Conservation and Energy Efficiency Fund,” $10 million to “Clean Energy Education and Training Fund,” $10 million for the purpose of funding a minority-business-development program, and $57 million for the purpose of funding electricity-subsidy program, and the omission in the title of the name of minority-business-development fund sought to be created did not make title’s description inaccurate.




PUBLIC UTILITIES - PENNSYLVANIA

Philadelphia Gas Works v. Pennsylvania Public Utility Commission

Supreme Court of Pennsylvania - April 29, 2021 - A.3d - 2021 WL 1681311

Real property owners filed complaints against city-owned natural gas utility, arising from several billing disputes over accrual of late fees on unpaid gas bills that were the subject of docketed municipal liens.

The Public Utility Commission ordered refunds of years of late fees on charges that were subject to docketed liens, imposed financial penalties on utility for charging those late fees, and ordered utility to reorganize its billing system. Utility petitioned for review. The Commonwealth Court reversed. Petition for allowance of appeal was granted.

The Supreme Court held that municipal lien arising out of delinquent bills for city-owned natural gas utility service was “judgment,” so that after it was docketed, the utility could only charge 6% statutory interest rate.

A municipal lien arising out of delinquent bills for city-owned natural gas utility service was a “judgment,” so that after such a lien was docketed, the utility could only charge the customer the 6% statutory interest rate applicable to judgments, rather than the 18% tariff rate on late payments that had not been reduced to judgment.




EMINENT DOMAIN - SOUTH CAROLINA

United States v. 269 Acres, More or Less, Located in Beaufort County South Carolina

United States Court of Appeals, Fourth Circuit - April 16, 2021 - F.3d - 2021 WL 1432960

Government filed eminent domain action to impose permanent easement on undeveloped land near military base for military jets’ flight paths.

The United States District Court for the District of South Carolina accepted in part and rejected in part recommendation by three-member land commission issued following bench trial and awarded landowners approximately $4.4 million as just compensation, and, subsequently denied landowner’s request for attorney’s fees and costs and ordered parties to split costs of commission, but granted in part landowners’ motion for relief from judgment, apportioning attorney’s fees and litigation costs. Government appealed, and landowners cross-appealed.

The Court of Appeals held that:




PUBLIC UTILITIES - VERMONT

In re Chelsea Solar LLC

Supreme Court of Vermont - April 16, 2021 - A.3d - 2021 WL 1439754 - 2021 VT 27

Developer appealed Public Utility Commission decision denying developer’s petition for a certificate of public good (CPG) to construct and operate a solar electric generation facility, and intervenors cross-appealed.

The Supreme Court held that:

Solar energy developer, which sought to construct solar energy facilities to take advantage of standard-offer program’s set price for energy, failed to show that it preserved argument that program’s statutory definition of “plant,” including its reference to “newly constructed facilities,” was unconstitutionally vague and standardless, and Supreme Court therefore would decline to address that argument when reviewing the Public Utilities Commission’s denial of developer’s petition seeking a certificate of public good.

Developer’s proposed 2.0-megawatt solar electricity generation facility and nearby sister facility constituted a single 4.0 megawatt plant which exceeded generation cap imposed on Vermont’s Sustainably Priced Energy Enterprise Development (SPEED) Program participants seeking guaranteed set price for renewable energy, where proposed facilities were commonly owned, physically contiguous, and designed to “fit together,” facilities were pursued and developed as part of a common scheme, and their interconnection to the grid required developer to construct a mile-long line extension at its own expense, the use of which would be shared by the facilities.

Supreme Court, which affirmed Public Utilities Commission’s decision that two proposed solar electricity generator facilities constituted a single plant for purposes of generation cap imposed on Vermont’s Sustainably Priced Energy Enterprise Development (SPEED) Program participants seeking guaranteed set price for renewable energy, would decline intervenors’ request that Court nonetheless address their arguments regarding the certificate of public good factors for one of the proposed facilities, as certificate of public good application was essentially invalid because it related to a theoretical smaller facility that was not in fact the “plant” found to exist by the Commission.

Homeowners association and country club intervenors, who sought to intervene in Public Utilities Commission proceeding regarding developer’s application for certificate of public good to construct and operate a 2.0-megawatt solar electric generation facility, articulated potential aesthetic injuries that fell within the scope of the interests protected by statute and that were uniquely felt by them, and thus Commission appropriately exercised its discretion in allowing them to intervene; homeowners association’s issues included the aesthetic impact of the project resulting from increased noise and wind and the effect on its views, while country club expressed concern about the effect of the project on the views from the public golf course and expressed interest.




ANNEXATION - FLORIDA

Ranucci v. City of Palmetto

District Court of Appeal of Florida, Second District - April 14, 2021 - So.3d - 2021 WL 1395231

City brought action for declaratory relief and specific performance, seeking declaration that subdivision lot was contiguous to city’s property, that its annexation agreement with prior owner was valid and enforceable, that owners of lot were required to petition for annexation under annexation agreement, and that owners and subdivision’s homeowners association (HOA) were equitably estopped from refusing to perform under annexation agreement.

Following a bench trial, the Circuit Court entered final judgment in favor of city. Owners and HOA appealed.

The District Court of Appeal held that:

City’s claim for declaratory relief concerning validity and enforceability of its annexation agreement with prior owner of subdivision lot accrued, and five-year limitations period began to run, when lot became contiguous to city’s property and owners of lot failed to petition for annexation as contemplated in annexation agreement.

City’s claim for specific performance of its annexation agreement with prior owner of subdivision lot accrued, and one-year limitations period began to run, when owners of lot failed to petition for annexation when lot became contiguous to city’s property.

City’s request, as part of its claim for declaratory relief arising out of agreement providing that landowners would petition for annexation of property when landowners’ lot became contiguous to city’s property, that trial court declare that landowners were required to petition city for annexation was effectively a request for specific performance and thus was subject to one-year statute of limitations.

Failure of owners of subdivision lot and homeowners association (HOA) to petition for annexation into city under city’s annexation agreement with prior owner were not continuing breaches of agreement, and thus city’s claims for declaratory judgment and specific performance of annexation agreement accrued, and limitations periods began to run, when owners and HOA initially failed to petition for annexation; obligation to seek annexation occurred only when lot or property became contiguous to city’s property.




OPEN MEETINGS - MINNESOTA

City of Bloomington v. Raoul

Appellate Court of Illinois, Fourth District - April 26, 2021 - N.E.3d - 2021 IL App (4th) 190539 - 2021 WL 1608790

City, city council, and mayor of city sought administrative review of Attorney General’s binding opinion that city council violated Open Meetings Act when it held a closed session to discuss termination of agreement with town.

The Circuit Court reversed the Attorney General’s binding opinion. Attorney General appealed.

The Appellate Court held that:

Appellate Court would review de novo the determination by the Attorney General that city council violated the Open Meetings Act when it held closed session, purportedly pursuant to Act’s litigation exception, regarding termination of agreement with town; terms “probable” and “imminent” in litigation exception were not ambiguous and, therefore, did not warrant deference to Attorney General’s opinion, and historical facts were established.

City council improperly invoked litigation exception to Open Meetings Act to justify council’s closed session regarding termination of agreement with town, where there was no litigation pending for city to invoke exception at time of session, and council members did not reasonably believe that litigation was probable or imminent.

Even if city council had lawfully invoked litigation exception to Open Meetings Act in order to justify holding a closed session regarding termination of agreement with town, the council violated the Act by failing to limit its discussion to probable or imminent litigation, where the council discussed topics related to potential financial and public-relations implications of council’s various options for terminating agreement, and absent from the closed session was any discussion of legal theories, defenses, claims, or possible approaches to litigation.




EMINENT DOMAIN - MASSACHUSETTS

Cobble Hill Center LLC v. Somerville Redevelopment Authority

Supreme Judicial Court of Massachusetts, Suffolk - April 22, 2021 - N.E.3d - 2021 WL 1568753

Property owner filed action against urban redevelopment authority, alleging that authority’s taking by eminent domain of owner’s land for demonstration project was not valid taking under eminent domain statute and was unconstitutional.

The Superior Court Department granted judgment on the pleadings in favor of authority. Property owner appealed. Action was transferred from the Appeals Court.

The Supreme Judicial Court, in a matter of first impression, held that:

The eminent domain statute furnishes urban redevelopment authorities with the power to take property by eminent domain in furtherance of a demonstration projects in order to prevent and eliminate slums and urban blight, independent of an urban renewal plan or urban renewal project.

“Demonstration,” for purpose of eminent domain statute giving urban redevelopment authorities the power to take property by eminent domain in furtherance of demonstration projects, means the testing or development of a different, new, or improved means or method of accomplishing the statutory purpose of elimination of urban blight.

Urban redevelopment authority’s plan for property owner’s parcel qualified as “demonstration project,” so that authority’s taking of parcel was valid under eminent domain statute; plan was designed to serve as model innovative approach to community development that integrated a public safety complex with private development on a single site with nearby public transit in order to eliminate urban blight.

Urban redevelopment authority’s exercise of eminent domain power for demonstration projects under Massachusetts eminent domain statute comports with Takings Clause requirements that taking must be for public purpose and the landowner must receive just compensation.

Fact that an urban redevelopment authority plans to use some of the property taken pursuant to eminent domain statute as a municipal building and plans to sell some of the property for development does not negate the public purpose of taking, for purpose of compliance with Fifth Amendment Takings Clause.




PUBLIC UTILITIES - MINNESOTA

Matter of Minnesota Power's Petition for Approval of EnergyForward Resource Package

Supreme Court of Minnesota - April 21, 2021 - N.W.2d - 2021 WL 1556816

Objectors sought review of Public Utilities Commission’s (PUC) order approving electric utility’s affiliated-interest agreements governing construction and operation of natural gas power plant in neighboring state without environmental review, environmental assessment worksheet (EAW), or environmental impact statement (EIS) under Minnesota Environmental Policy Act (MEPA).

The Court of Appeals reversed and remanded. Utility petitioned for review, which was granted.

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

Statute requiring Public Utilities Commission’s (PUC) approval of affiliated-interest agreements between a public utility and an affiliated interest does not require environmental review, an environmental assessment worksheet (EAW), or an environmental impact statement (EIS) before PUC approval.

Public Utilities Commission’s (PUC) approval of electric utility’s affiliated-interest agreements governing construction and operation of natural gas power plant in neighboring state was not a project causing environmental effects, and thus Minnesota Environmental Policy Act (MEPA) did not apply and no MEPA review, environmental assessment worksheet (EAW), or environmental impact statement (EIS) was needed for PUC approval; PUC’s approval of the agreements did not grant a permit, did not approve construction or operation of plant, and did not authorize utility to proceed forward in other state.

A “but for” causal relationship is insufficient to make agency responsible for particular environmental effect under Minnesota Environmental Policy Act (MEPA); the line that must be drawn requires a reasonably close causal relationship between environmental effect and the alleged cause.




CONTRACTS - NORTH DAKOTA

City of Glen Ullin v. Schirado

Supreme Court of North Dakota - April 20, 2021 - N.W.2d - 2021 WL 1540423 - 2021 ND 72

Park district and city brought action against owners of land near park district’s undeveloped lots, with streets and alleys under city’s authority running adjacent to and between lots, seeking to enjoin property owners from placing fencing and allowing their horses to graze on lots.

After granting preliminary injunction, the District Court entered summary judgment in favor of park district and city, found property owners in contempt of court based on violation of default judgment in prior lawsuit, and awarded attorney fees and costs in the amount of $11,106.85. Property owners appealed, and the Supreme Court reversed and remanded. On remand, the District Court denied landowners’ motion for trial and granted city’s motion for summary judgment, granted permanent injunctive relief, and awarded attorney’s fees. Landowners appealed.

The Supreme Court held that:

City council’s meeting minutes did not constitute a sufficient memorandum of alleged grazing agreement to satisfy the statute of frauds and allow landowners to use city property for grazing their horses in exchange for cleaning up streets and alleys; meeting minutes merely noted that landowners had asked if they could graze horses on “the Schultz land” on the city’s extreme north side and that such grazing was permissible, and did not provide the terms of any agreement to allow landowners to use platted streets and alleys as pasture land if garbage was removed.

Doctrine of part performance did not apply to remove alleged agreement between landowners and city from the statute of frauds absent any evidence that such an agreement existed and that landowners’ part performance was consistent only with that agreement; while landowners alleged that city had agreed to allow them to graze horses on city land in exchange for cleaning up city streets and alleys, they were unable to provide evidence of any such agreement other than their own allegations.

District court adequately explained award of $5,460 in attorney’s fees to park district which obtained permanent injunction to prevent landowners from grazing horses on park land; court was presented with an invoice listing the time and amounts billed by counsel to the city and the park district since the commencement of the litigation, court explained that the park district was awarded recovery of attorney’s fees from landowners for their contempt of the injunction, and the fee amount was half the invoice total because the city was not protected under the injunction.




EMINENT DOMAIN - TEXAS

San Jacinto River Authority v. Medina

Supreme Court of Texas - April 16, 2021 - S.W.3d - 2021 WL 1432227

Downstream property owners’ brought separate suits for declaratory judgment under eminent domain statutes that river authority, by precipitously releasing water from dam at excessive rate in response to hurricane, had caused or added to the flooding of their land and thereby caused a “taking.”

The District Court denied river authority’s motions to dismiss, and river authority appealed. The Court of Appeals affirmed, and river authority petitioned for review.

The Supreme Court held that:

Statutory takings claims under the eminent domain statutes are not limited solely to claims for regulatory takings; such claims may also be brought for physical takings, such as a flooding.

Allegations in downstream property owners’ complaints for declaratory judgment that river authority, by precipitously releasing water from dam at excessive rate in response to hurricane, had caused or added to the flooding of their land and thereby caused a “taking,” when its knowledge and experience from prior hurricane that had caused even more precipitation should have informed it that it could have released water more slowly in manner that would not have caused such damage, did not conclusively establish that river authority’s actions met either the “reasonable good faith belief” test of one exception to eminent domain statutes or the “measured and appropriate response” test of another, as required for court to dismiss property owners’ suits as having no basis in law or fact.




ZONING & PLANNING - ALASKA

Griswold v. Homer Advisory Planning Commission

Supreme Court of Alaska - April 9, 2021 - P.3d - 2021 WL 1325541

Owners of bicycle shop applied for conditional use permit to expand existing entryway by six feet and construct covered porch, thereby extending covered area up to eight feet into 20-foot setback at front of business.

City’s advisory planning commission approved permit over resident’s objection, and, on appeal to the Office of Administrative Hearings, administrative law judge affirmed. Resident appealed. The Superior Court affirmed the permit approval and subsequently denied resident’s motion for reconsideration and request for disqualification. Resident, proceeding pro se, appealed.

The Supreme Court held that:




BALLOT INITIATIVE - ARIZONA

Leach v. Hobbs

Supreme Court of Arizona - March 31, 2021 - P.3d - 41 Arizona Cases Digest 13 - 2021 WL 1217116

Objectors brought action challenging the validity of certain signature petitions filed by political action committee with the Secretary of State to qualify health care ballot initiative for inclusion on general election ballot, based on various objections to petition circulators and signatures.

Following trial during which 94 subpoenaed circulators failed to appear, the Superior Court disqualified certain signatures, and held that the committee had failed to gather sufficient valid signatures to place the initiative on the ballot. Committee and objectors appealed.

The Supreme Court held that:




BONDS - CALIFORNIA

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

Court of Appeal, Fourth District, Division 1, California - April 19, 2021 - Cal.Rptr.3d - 2021 WL 1525877

In order to fund construction of an underground parking garage and other improvements in Balboa Park, the City of San Diego entered into a “lease revenue bond” transaction. For a nominal fee, the City would lease the land underlying the improvements to the Public Facilities Financing Authority of the City of San Diego (Financing Authority). The Financing Authority, in turn, would lease the land and improvements back to the City in exchange for annual payments. The Financing Authority would issue bonds to fund construction of the improvements, secured by the City’s annual lease payments to the Financing Authority. In the event of default by the Financing Authority, any recourse by the bondholders would be limited to collection of the City’s lease payments. This type of transaction was approved by the California Supreme Court in Rider v. City of San Diego (1998) 18 Cal.4th 1035, 77 Cal.Rptr.2d 189, 959 P.2d 347 (Rider) and by California Court of Appeal in San Diegans for Open Government v. City of San Diego (2015) 242 Cal.App.4th 416, 195 Cal.Rptr.3d 133 (SanDOG).

In Rider, the California Supreme Court explained that a joint powers agency, like the Financing Authority, has the power under state law to issue bonds in its own name. It therefore need not comply with the limitations that would apply to City-issued bonds, such as voter approval: “[W]hen the Financing Authority issues bonds, it does so independently of any common powers delegated in the joint powers agreement, and therefore it is not subject to the limitations that would apply to the City, including the two-thirds vote requirements in the [California] Constitution and the City’s charter.”

In SanDOG, the Court of Appeal followed Rider even where, as here, the Financing Authority is under the control of the City. The Court explained, “Rider made clear that for purposes of the debt limitation provisions, when a financing authority created to issue bonds ‘has a genuine separate existence from the City,’ ‘it does not matter whether or not the City ‘essentially controls’ the financing authority.”

After Rider and SanDOG, San Diego voters approved several amendments to the San Diego City Charter regarding bond issuance. Plaintiff San Diegans for Open Government (SanDOG) challenged the Balboa Park lease revenue bond transaction based on these amendments. In SanDOG’s view, one newly-amended provision restricts the ability of the City to use the Financing Authority to issue bonds without voter approval.

The parties disputed whether the newly-amended section 90.1 applied to lease revenue bonds issued by the Financing Authority. SanDOG contended that section 90.1 applies to revenue bonds, including those issued by the Financing Authority, and lease revenue bonds are a type of revenue bond. SanDOG argued that the Financing Authority’s lease revenue bonds are impermissible because they violate section 90.1’s two conditions, that the bonds not be “payable from the general fund” and that they be used “for the construction, reconstruction or replacement of water facilities, wastewater facilities, or stormwater facilities.” The City and the Financing Authority, by contrast, contended that section 90.1’s limitations do not apply to the Financing Authority. Even if they did, they argue that the “revenue bonds” described in the section do not encompass the “lease revenue bonds” at issue here.

The trial court disagreed with SanDOG’s position and the Court of Appeal affirmed the court’s judgment on this issue.

The Court of Appeal found that the provision in question reflects a limitation on City-issued bonds; it does not cover bonds issued by the Financing Authority. Moreover, even if the provision were not limited to City-issued bonds, it would not cover the lease revenue bonds contemplated here. “In sum, we conclude section 90.1 does not apply to lease revenue bonds issued by the Financing Authority. The plain language does not unambiguously encompass such bonds, and the ballot materials make clear that the voters intended section 90.1 to have a limited scope. The type of financial transaction at issue here, approved in Rider and SanDOG, is not prohibited by the 2016 amendments to the San Diego City Charter.”

 




IMMUNITY - ILLINOIS

Robinson v. Village of Sauk Village

Appellate Court of Illinois, First District, FIFTH DIVISION - April 9, 2021 - N.E.3d - 2021 IL App (1st) 200223 - 2021 WL 1399812

Pedestrian brought action against two villages and police officers, seeking damages for injuries he sustained when he was struck by vehicle driven by car theft suspect who was fleeing from the police. Both villages and officers filed a motion for summary judgment asserting immunity under Local Government and Governmental Employees Tort Immunity Act.

The Circuit Court granted summary judgment in favor of all of the defendants. Pedestrian appealed.

The Appellate Court held that:




CONTRACTS - KANSAS

Jayhawk Racing Properties, LLC v. City of Topeka

Supreme Court of Kansas - April 9, 2021 - P.3d - 2021 WL 1323817

Private owners of a reversionary interest in a multi-purpose motorsports facility brought action against city, seeking declaration of its rights under a memorandum of understanding and alleging breach of agreement for city’s purchase of the reversionary interest.

The District Court converted city’s motion to dismiss for failure to state a claim into a motion for summary judgment, and granted the motion. Owners appealed, and the Court of Appeals reversed. City filed petition for review, which was granted.

The Supreme Court held that city’s agreement served a governmental or legislative function, and thus facility owners could not sue for breach of contract when new city council decided not to proceed.

City’s agreement to expand existing sales tax and revenue bond district and issue additional bonds to purchase full ownership interest in multi-purpose motorsports facility served a governmental or legislative function, and thus facility owners could not sue for breach of contract when new city council decided not to proceed; city’s decision to invest in race track, expand the surrounding area and encourage commercial development, and improve the facilities, all with a purpose of making the city more attractive to visitors and increasing tax revenues and the economic viability of businesses, represented the epitome of governmental policy making, and while memorandum of understanding called for some routine maintenance, it emphasized major reconstruction and new development.




OPEN MEETINGS - OKLAHOMA

Fraternal Order of Police, Bratcher/Miner Memorial Lodge, Lodge No. 122 v. City of Norman

Supreme Court of Oklahoma - April 13, 2021 - P.3d - 2021 WL 1379396 - 2021 OK 20

Police organization filed petition for declaratory judgment and injunctive relief, claiming that city violated city ordinance and the Open Meeting Act, by enacting amendments to city budget at a special meeting of the city council that were not included in the posted agenda.

The District Court granted summary judgment in favor of organization. City appealed.

The Supreme Court held that:

Agenda for special meeting of the city council at which city enacted amendments to city budget was deceptively vague and likely to mislead, and thus, it was a willful violation of the Open Meeting Act, and actions taken at such meeting were invalid; city knew that the council would continue discussions at special meeting about potentially reallocating funds within the city budget from prior meeting, but disregarded the Open Meeting Act and failed to include anything on the agenda to give the public notice of the matters under consideration, but rather, the agenda specifically limited council’s potential actions to adopting or rejecting the city budget, thereby concealing the actions taken by council.




ZONING & PLANNING - RHODE ISLAND

New Castle Realty Company v. Dreczko

Supreme Court of Rhode Island - April 13, 2021 - A.3d - 2021 WL 1377277

Applicant sought judicial review of zoning board’s denial of its request for a special-use permit and dimensional variance from zoning ordinance requiring minimum lot sizes of three acres to build a house and install a septic system on a preexisting nonconforming one-acre lot that contained wetlands.

The Superior Court affirmed the board’s decision. Applicant filed petition for writ of certiorari, which was granted.

The Supreme Court held that:

Substantial evidence did not exist in the record to support zoning board’s decision to deny special-use permit to install a septic system within 100 feet of wetlands on preexisting nonconforming lot, where applicant had already obtained permits from Department of Environmental Management (DEM) to alter freshwater wetlands and to construct an onsite water treatment system, which showed that applicant had satisfied all applicable DEM regulations with respect thereto absent competent contrary evidence in the record, and reasons espoused by board members for denying the special-use permit, including possible negative impact on wetlands, were all within realm of DEM’s expertise, while board members lacked specialized knowledge necessary to refute DEM’s decisions.

Substantial evidence supported zoning board’s denial of dimensional variance from zoning ordinance requiring minimum lot size of three acres, in order for applicant to construct a house on preexisting nonconforming one-acre lot, which had been conforming under a previous ordinance, where applicant did not satisfy its burden of showing that requested relief was least relief necessary and that there was no other reasonable alternative way to enjoy a legally permitted beneficial use of the property, as applicant was unwilling to consider board members’ suggestions of trying to move the house further back, making it smaller, or making just a two-bedroom house, because applicant determined those options to not be marketable or of value to potential buyers.




BALLOT INITIATIVE - UTAH

Smith v. Zook

Supreme Court of Utah - April 15, 2021 - P.3d - 2021 WL 1419579 - 2021 UT 10

Citizens, who had collected signatures in support of referendum petition after city enacted ordinance that approved development project on land owned by land developer, filed petition for extraordinary writ after city recorder rejected petition on ground that signatures collected in response to mailer were not valid and legal, seeking order compelling recorder to accept referendum petition and qualify it for ballot.

The First District Court granted summary judgment in favor of citizens. Land developer appealed.

The Supreme Court held that online referendum packet failed to fulfill requirements of Election Code.

Online referendum packet regarding challenge to city ordinance, to which sponsors directed voters via document sent through mail, failed to fulfill requirements of Election Code, and thus signatures collected in response to such document were not valid and legal, even after taking into consideration executive order issued by governor during COVID-19, which suspended enforcement of provisions that required sponsor to physically attach copy of law at issue and that required packet to be bound physically and signature sheet to be attached physically; order did not alter requirement that sponsors create packet that bound together copy of components of packet into single unit to be opened for signing by voters and include copy of referendum petition and ordinance, and it was not enough for sponsors to merely make packet available to voters online.




MUNICIPAL ORDINANCE - WASHINGTON

Hassan v. GCA Production Services, Inc.

Court of Appeals of Washington, Division 1 - April 5, 2021 - P.3d - 2021 WL 1247949

Employees brought action against employer, a contractor that shuttled rental car company’s vehicles to and from company’s airport location, alleging that employer was a transportation employer subject to city ordinance that required transportation employers to pay their employees $15-per-hour minimum wage.

The Superior Court entered summary judgment for employer. Employees appealed.

The Court of Appeals held that defendant was not a “transportation employer” and therefore was not subject to ordinance’s $15-per-hour minimum wage requirement.

Contractor that shuttled rental car company’s vehicles to and from its airport location was not a “transportation employer” within meaning of city ordinance that required transportation employers, including those that provided or operated rental car services, to pay workers a $15 per hour minimum wage, and thus, it was not subject to the ordinance’s minimum wage requirements, because contractor did not supply individuals with possession and enjoyment of cars in exchange for payments.




SCHOOL CONSTRUCTION BONDS - ALASKA

North Slope Borough v. State

Supreme Court of Alaska - April 2, 2021 - P.3d - 2021 WL 1236786

Municipality sought judicial review of Department of Education and Early Development decision to deny reimbursement for school construction bonds which did not meet statutory requirement of equal repayments for a minimum ten year period, despite prior reimbursement of similar bonds.

The Superior Court denied request for trial de novo and affirmed. Municipality appealed.

The Supreme Court held that:

Municipality was not entitled to trial de novo on challenge to Department of Education and Early Development decision denying reimbursement for municipal school construction bonds on grounds that bonds did not meet equal repayment payments requirement for reimbursement; municipality had stipulated to summary adjudication at agency level, record at the administrative hearing provided an adequate basis for the hearing officer’s decision, and there were no factual disputes.

Deferential standard of review, rather than standard akin to summary judgment, was appropriate standard for hearing officer’s review of Department of Education and Early Development decision to deny reimbursement for school construction bond payments which were not repaid in equal payments.

Supreme Court would apply reasonable basis review to Department of Education and Early Development determination that municipal school construction bonds did not qualify for reimbursement because they were not to be repaid in approximately equal payments; whether the bond structure furthered the purpose of the reimbursement program was a question within the Department’s expertise, and whether the bonds provided budget certainty for the Department or the State was a policy question about managing the public fisc that could only be determined by looking to unique internal government policy considerations.

Department of Education and Early Development determination that word “bond,” in statute allowing municipalities to be reimbursed for bond payments related to school construction and renovation which were to be repaid in approximately equal payments over a period of at least 10 years, referred to each bond as a whole, rather than only the school debt portion of the bond, was reasonable, and thus determination that municipality’s bonds did not comply with statute was also reasonable; plain language of the statute indicated that term “bond” did not refer to any subcomponent, and treating bonds as a whole was crucial to the Department’s process of verifying a municipality’s payment information.

Department of Education and Early Development determination that municipality’s bonds did not meet requirements for state repayment of bonds for school construction was not a new regulation to which the Administrative Procedure Act applied, although Department employee had reimbursed prior, similar bonds; employee’s prior failure to apply the controlling law was not a formal interpretation of the statute that would bind future review, Department’s new interpretation corrected a previous oversight, and it was neither expansive or unforeseeable that once it learned of its previous failure to apply the law, the Department would correct that failure.

Doctrine of substantial compliance did not apply to allow Department of Education and Early Development reimbursement of municipality’s bonds which did not comply with statutory requirements for reimbursement of bonds for school construction funding, although Department had reimbursed similar, earlier bond repayments; Legislative concern regarding predictability of future appropriations led to requirement of a ten-year minimum term of approximately equal bond payments, while bonds at issue contained large balloon payments near the end of their terms.

Department of Education and Early Development was not equitably estopped from denying municipality’s request for reimbursement of school construction bonds on grounds that reimbursement requests for prior, similar bonds had been approved, as reimbursement would require Department to violate statutory requirement that bonds be subject to relatively equal payments for a minimum ten year period.




PUBLIC RECORDS - OHIO

State ex rel. Armatas v. Plain Township Board of Trustees

Supreme Court of Ohio - April 8, 2021 - N.E.3d - 2021 WL 1301186 - 2021-Ohio-1176

Requester, proceeding pro se, sought writ of mandamus to compel township to produce invoice for legal services performed on township’s behalf. Requester moved for damages under the Public Records Act, attorney fees, and costs.

The Fifth District Court of Appeals denied the writ and related claims for damages, attorney fees, and costs. Requester appealed.

The Supreme Court held that:

Invoice for legal services performed on township’s behalf which was in possession of claims administrator for a private entity, a government risk-management pool that had hired and supervised the attorneys, constituted a “public record” under the Public Records Act pursuant to the quasi-agency theory, since invoice related to a delegated public duty; township had public duty to obtain legal representation to protect the public interest, it delegated that duty by becoming a member of the risk-management pool, and its attorney-client relationship persisted even though attorneys were hired and controlled by risk-management pool.

Township had clear legal duty to make available to requestor an invoice for legal services performed on township’s behalf, which was in possession of private entity, a government risk-management pool that hired and supervised the attorneys, as required for mandamus relief for his Records Act claim; invoice came under township’s jurisdiction and documents procedures and operations that it had delegated to the risk-management pool.

Relator in mandamus action related to Public Records Act request was entitled to recover maximum amount of statutory damages after township denied his request for an invoice for legal services performed on township’s behalf, where township lacked reasonable legal basis for failing to provide requester with a written explanation for denying access to the requested records before he filed his mandamus complaint.

 

 




PUBLIC UTILITIES - TEXAS

Public Utility Commission of Texas v. Texas Industrial Energy Consumers

Supreme Court of Texas - March 26, 2021 - S.W.3d - 2021 WL 1148227 - 64 Tex. Sup. Ct. J. 576

Electricity consumer advocacy group and others petitioned for judicial review of decision of Public Utilities Commission that electric utility met its burden of proving that it was prudent to complete construction of coal-fired power plant, and therefore, that utility’s construction costs could be included in utility rate base passed onto consumers.

The District Court affirmed, and petitioners appealed. The Austin Court of Appeals reversed and remanded. Review was granted.

The Supreme Court held that:

Electric utility was not required to present expert testimony in its independent, retrospective analysis in order to show that its decision to continue construction of coal-fired power plant fell within the select range of options that reasonable utility manager would exercise or choose, based on information available at time, and thus was prudent, given its lack of contemporaneous records at time decision was made, as required for Public Utilities Commission to allow utility to include construction costs in utility rates passed onto consumers; nothing prevented Commission from assessing prudence based on historical facts and employee testimony adduced at hearing.

Substantial evidence supported conclusion of Public Utilities Commission that electric utility’s decision to complete construction of coal-fired power plant fell within range of reasonably prudent options available to utility at time, and thus, utility was entitled to include costs of construction in utility rates passed onto consumers; utility presented evidence regarding volatility of natural gas prices, whereas price of coal, in contrast, remained stable within same period, engineering work for plant was 93% complete at time it made decision to complete construction and overall plant construction was 39% complete, utility had $655 million in outstanding commitments dependent on completion of construction, and plant’s capacity met utility’s power demands and had anticipated useful life that extended beyond economic conditions at time of decision.




ZONING & PLANNING - VERMONT

In re JSCL, LLC CU Permit

Supreme Court of Vermont - April 2, 2021 - A.3d - 2021 WL 1250969 - 2021 VT 22

Applicant and neighbors sought review of town zoning board of adjustment’s grant of conditional use permit to construct trucking facility for fuel-hauling business in industrial zone.

The Superior Court approved application. Neighbors appealed.

The Supreme Court held that:




TAX - VIRGINIA

Galloway v. County of Northampton

Supreme Court of Virginia - April 1, 2021 - S.E.2d - 2021 WL 1220722

In action brought by taxpayers against county and town, alleging that real property had been overvalued in tax assessments, county and town moved in limine and to dismiss, seeking exclusion of taxpayers’ expert witnesses for failure to comply with uniform pretrial scheduling order and dismissal of case for failure to provide timely detailed report on substance of witness’ intended testimony.

The Northampton Circuit Court excluded expert witnesses and dismissed case with prejudice. Taxpayers appealed.

The Supreme Court held that:

Taxpayers failed to comply with provision of pretrial scheduling order that required them to disclose substance of facts and opinions to which expert witnesses were expected to testify and to provide grounds for each opinion 90 days before trial, and thus exclusion of witness from testifying was warranted in action brought by taxpayers against county and town, alleging that real property had been overvalued in tax assessment, even though taxpayers identified witnesses several days before deadline and had provided opportunity to depose witness; taxpayers did not disclose substance of facts and opinions and grounds for opinions until two months after disclosure of witnesses’ identities, and while order was not entered by court until date on which taxpayers were required to make witness disclosures, taxpayers’ counsel had signed order before such date.

Taxpayers’ identification of intended expert witness was valid in action brought against county and town, alleging that real property had been overvalued in tax assessments, even though taxpayers’ counsel failed to sign signature blank on response to interrogatories regarding expert witnesses, as required by court rule governing signing of discovery requests, responses, and objections; counsel’s signatures at end of discovery responses, together with taxpayer’s notarized and sworn signature, satisfied rule’s requirements, and even if they had not, counsel promptly signed response after he realized, without prompting from opposing counsel or court, that he had initially failed to do so.

Taxpayers, in response to interrogatory regarding expert witnesses, did not waive right to have intended witness testify as expert in action brought against county and town, alleging that real property had been overvalued in tax assessments, even though response did not list expert; taxpayers had already informed county and town that they intended to call expert in response to previous interrogatory, and if county and town had conferred with taxpayers on issue, they would have known that taxpayers intended to supplement, rather than supplant, identification of experts.




PUBLIC EMPLOYMENT - WASHINGTON

Seattle Police Department v. Seattle Police Officers’ Guild

Court of Appeals of Washington, Division 1 - April 5, 2021 - P.3d - 2021 WL 1247946

City applied for a writ directing arbitration panel to transmit records and files to the Superior Court to determine whether to vacate panel’s decision to reinstate former city officer who was terminated by city for violating police department’s use-of-force policies.

The Superior Court granted city’s motion to vacate. Police guild appealed.

The Court of Appeals held that:

Public policy against use of excessive force in policing was explicit, as required to vacate, as violative of public policy, arbitration panel’s decision to reinstate former city officer who was terminated by city for violating police department’s use-of-force policies; right to be free from excessive force had source in Bill of Rights and was enforceable against states via Fourteenth Amendment, Fourth Amendment provided explicit textual source of constitutional protection against physically intrusive governmental conduct, and Fourth Amendment, not more generalized notion of substantive due process, was guide for analyzing excessive force claims.

Public policy against use of excessive force in policing was dominant, as required to vacate, as violative of public policy, arbitration panel’s decision to reinstate former city officer who was terminated by city for violating police department’s use-of-force policies; right to be free from excessive force was enshrined in the U.S. Constitution, which Washington’s constitution recognized as the supreme law of the land, § 1983 was enacted to create a broad remedy for violations of federally protected civil rights, and congress, through enactment of statute prohibiting pattern or practice of right deprivations, provided remedy for violations of federal civil rights, specifically for violations that were systematically perpetrated by local police departments.

Public policy against use of excessive force in policing was well defined, as required to vacate, as violative of public policy, arbitration panel’s decision to reinstate former city officer who was terminated by city for violating police department’s use-of-force policies; statute imposed affirmative duty on municipal employers to sufficiently discipline officers who violated use-of-force policies, and consent decree between city and United States confirmed that effective accountability mechanisms, including ones that sufficiently disciplined officers who violated the very policies designed to ensure constitutional policing, were a cornerstone of municipal employers’ duty to not engage in patterns or practices of use of excessive force.

In determining to reinstate former city officer who was terminated by city for violating police department’s use-of-force policies, arbitration panel considered mitigating factors that were not properly considered as mitigating in light of public policy against use of excessive force; panel considered as mitigating factors that officer acted “perhaps reflexively” after being kicked, that officer’s patience was being tried, and that he sincerely believed that he did nothing wrong, even though officer punched suspect while she was handcuffed, intoxicated, and officers and police dog were at scene, officer responded to circumstance not unique for officers, and consideration of subjective belief telegraphed that policy violations were condoned if officer was passionate.

Arbitration panel’s award reinstating former city officer who was terminated by city for violating police department’s use-of-force policies was so lenient as to violate public policy against use of excessive force; despite officer’s adequate training and clarity and specificity of policies, he punched woman who, although angry and resistant, was not large and was handcuffed and intoxicated, although officer described suspect as amazingly strong, officer himself was relatively large and physically strong, woman was only person arrested, and there were two additional officers and police dog at scene.

Public policy against use of excessive force in policing barred reinstatement of former city officer who was terminated by city for violating police department’s use-of-force policies, as required to vacate arbitration panel’s award reinstating officer; reinstatement would have sent message that it was not that serious when an officer, who had time to execute other options, violated clear and specific policy on which he was adequately trained by using excessive force on handcuffed subject “perhaps reflexively” because “patience was being tried,” causing serious injury, and insisting he did nothing wrong, and remanding to panel to reinstate officer subject to some other penalty would have thwarted city’s ability to ensure that no pattern or practice of using excessive force existed.




MUNICIPAL GOVERNANCE - WASHINGTON

Matter of Recall of Sawant

Supreme Court of Washington - April 1, 2021 - P.3d - 2021 WL 1217195

Voters filed petition to recall city council member, alleging that member delegated city employment decisions to political organization outside city government, that member used city resources to promote ballot initiative and failed to comply with public-disclosure requirements, that member disregarded state orders related to COVID-19 and endangered safety of city workers and other individuals by admitting hundreds of people into city hall while it was closed to public, and that member led protest march to mayor’s private residence, the location of which member knew was protected under state confidentiality laws.

The Superior Court found charges factually and legally sufficient for recall. Member appealed

The Supreme Court held that:




PUBLIC WORKS - CALIFORNIA

Kaanaana v. Barrett Business Services, Inc.

Supreme Court of California - March 29, 2021 - P.3d - 2021 WL 1166963 - 21 Cal. Daily Op. Serv. 2696

Belt sorters at a county recycling facility brought action against staffing company, alleging failure to pay minimum wages, overtime, and all wages owing at termination, failure to provide meal periods, and unfair competition, and the employees sought civil penalties under Private Attorneys General Act (PAGA).

Following bench trial, the Superior Court entered judgment in favor of employees but reduced amount of civil penalties for noncompliant meal periods. Employees appealed. The Court of Appeal reversed and remanded.

On further review, the Supreme Court held that:

Overarching purpose of California’s prevailing wage law is to protect and benefit employees on public works projects, and this general objective subsumes within it numerous specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees.

Term “public works,” as used in California’s prevailing wage law in guaranteeing a certain minimum wage to those employed on public works, had to be interpreted broadly as not limited by previous definition only to workers employed in construction- and infrastructure-related work activities.

Belt sorters at a county recycling facility, whose job in sorting refuse deposited on conveyor belt was to remove nonrecyclable materials, clear obstructions, and put recyclables into containers, qualified as workers employed on “public works,” who were entitled to be paid a minimum wage under California’s prevailing wage law.




BOND VALIDATION - GEORGIA

Franzen v. City of Atlanta

Court of Appeals of Georgia - March 29, 2021 - S.E.2d - 2021 WL 1168893

Citizen intervenors in bond validation proceedings involving tax allocation district (TAD) established for the purpose of redeveloping a blighted area of the city, filed an objection to bond validations, asserting that the Atlanta Board of Education and the Fulton County Board of Commissioners did not have the authority to commit educational tax dollars derived from the TAD to the redevelopment.

The Superior Court issued orders both denying intervenors’ objections and validating the bonds. Intervenors appealed.

The Court of Appeals held that:

City school board had authority to consent to participation in city’s tax allocation district (TAD), although school board adopted interim resolution stating that no further use of ad valorem tax increments would be permitted without its prior written consent, where subsequent resolution expressly reinstated school board’s consent to the inclusion of any ad valorem property tax dollars as a basis for computing the tax allocation increment for the TAD.

County’s resolution extending its consent to inclusion of its ad valorem taxes on real property in the computation of tax allocation increments for tax allocation district (TAD) applied to all projects approved on or before a specific date, included approved redevelopment project, and thus county did not need to adopt a project-specific resolution to consent to proposed financing of redevelopment project; county’s resolution required additional approval only for projects proposed after specific date.

School board resolution was relevant to trial court’s ultimate conclusion regarding the propriety of tax allocation district (TAD) bonds and whether the school board properly consented to the inclusion of its property tax increment in the TAD bonds, and thus was admissible in bond validation proceeding, where resolution clarified that it superseded any conflicting provision in an earlier school board resolution related to city tax allocation districts.

City was not required to enact a new or amended local law before exercising its authority to use school tax funds in a tax allocation district (TAD) to fund redevelopment costs of blighted area, where city had already passed a local law authorizing the city’s redevelopment power prior to enactment of statute stating that redevelopment powers could be exercised only if authorized by a local law.

City’s redevelopment plan did not violate the Redevelopment Powers Law, although it did not contain a school system impact analysis, where redevelopment plan was adopted and amended prior to statutory amendment requiring such a plan, and Redevelopment Powers Law provided that a school board’s pre-amendment consent was ratified and confirmed.

Trial court orders validating municipal bonds and ruling on objections by citizen intervenors in bond validation proceeding contained adequate findings of fact and conclusions of law; trial court’s lengthy orders discussed extensive evidence presented during three days of hearings regarding the mechanics of the bond financing structure and included a clear statement of trial court’s reasoning.




PUBLIC UTILITIES - ILLINOIS

Souza v. City of West Chicago

Appellate Court of Illinois, Second District - March 9, 2021 - N.E.3d - 2021 IL App (2d) 200047 - 2021 WL 871193

Water-service customers filed a class action complaint against municipality, seeking declaratory and injunctive relief in addition to economic damages based on municipality’s attempt to bill more than 12 months, for residential customers, and 24 months, for nonresidential customers, after alleged usage of water and sewer services, and against contractor for breach of contract with municipality, which required installation of infrastructure to deliver “real time” meter reads, premised on customers’ alleged status as third-party beneficiaries of the contract.

Following municipality’s amendment of its local ordinance concerning billing practices, the Circuit Court granted contractor’s motion to dismiss, granted municipality’s motion for judgment on the pleadings, and ordered municipality’s separate motion to dismiss stricken as moot. After entering an order granting customers leave to withdraw their motion to reconsider, the Circuit Court granted municipality’s motion to strike customers’ motion to limit the scope of the judgment, but also denied customers’ motion to limit the scope of the judgment on the merits. Customers appealed.

The Appellate Court held that:




CHARTER AMENDMENT - OHIO

State ex rel. Cincinnati Action for Housing Now v. Hamilton County Board of Elections

Supreme Court of Ohio - March 30, 2021 - N.E.3d - 2021 WL 1186411 - 2021-Ohio-1038

Organization and individual electors sought writ of mandamus to compel county board of elections, Secretary of State, and city council to change ballot language regarding proposed city charter amendment on primary-election ballot.

The Supreme Court held that:

County board of elections, alone, had legal duty to prepare ballot language relating to proposed city-charter amendment, under statute providing for use of ballot language “as prepared and certified…by the board,” and its role was not to merely choose between petition signed by electors or ballot language proffered by city council, though electors and council were free to suggest ballot language.

Ballot language regarding proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which stated that the appropriation would take priority over other funding needs of the city and “could require” city to reduce city services and infrastructure projects by as much as $50 million annually, was not misleading or inappropriately argumentative; statement that appropriations would have priority over infrastructure and city services funding was accurate, language did not state it would “mandate” reduction in funding, only that it “could require” such reduction, and it was fair for ballot language to explain consequences of proposed measure on future city budgets.

Ballot language for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which stated that amendment would require city to appropriate funding using sources otherwise dedicated to providing for essential city services and public infrastructure needs, was not misleading or inappropriately argumentative; text fairly and accurately described reality, as much of the $50 million funding would have to come from city’s general-operating and capital funds, appropriations for essential services and infrastructure projects currently came from general-operating and capital funds, and objectors to ballot language did not dispute that trust fund would dip into bucket of funds that provided for essential city services and public infrastructure.

Ballot language for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which stated that the trust-fund board would be “administered by an unelected volunteer board,” and that the board members would be selected by community organizations and city council president pro tem, did not mischaracterize selection process and was not impermissibly argumentative, though objectors to ballot language asserted that language omitted critical role played by city council in selecting members; council would not have significant role in deciding membership, as, even if it had authority to reject nominees, it did not have right to select individuals for service, and ballot language that members were “unelected” was factually accurate.

Ballot language regarding source of funds for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which provided that city would appropriate funds from its operating or capital funds, revenue related to railway, proposed fee on developers, “or” personal income tax, was not misleading as to funding sources, though objectors to ballot language asserted that language misleadingly suggested that funding would be drawn from all, and not merely from among, the potential sources, as provided in proposal; use of disjunctive “or” plainly indicated that funding need not be drawn from each of the listed sources.

Ballot language regarding source of funds for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which provided that city would appropriate funds from its operating or capital funds, revenue related to railway, proposed fee on developers, or personal income tax, was not misleading as to funding sources on the ground that it omitted fifth potential source, namely an increase in municipal-income-tax rate if approved by city voters, as provided in proposal; proposal language related to municipal-income-tax rate, if approved by voters, did not establish a funding source, but it instead prohibited funding source absent future voter approval.

Ballot language stating that two proposed funding sources for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, namely revenue related to railway and personal income tax on stock-option income, were “prohibited by state law,” was inappropriately argumentative; statements were legal opinions on questions that the proposed amendment did not address.

Ballot language regarding purposes of proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, which stated fund would be established for affordable housing for persons with low incomes “and for related purposes,” but did not list specific related purposes of neighborhood stabilization, housing investment to prevent displacement, and leveraging additional outside resources, was not misleading or incomplete; there was no indication that stating specific purposes was essential to voters understanding proposal, nature of summary necessarily required omission of some important but nonessential information, and later part of summary stated that funds could be allocated to items including new construction, renovation, and direct services.

Secretary of State had no clear legal duty to eliminate inappropriately argumentative ballot language stating that two proposed funding sources for proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund, namely revenue related to railway and personal income tax on stock-option income, were “prohibited by state law,” under statutes governing preparation of ballot title and final approval of ballot language, and thus objectors to ballot language were not entitled to writ of mandamus compelling secretary to change language; statute governing ballot title was inapplicable to issue with ballot language, and relators were not trying to compel Secretary to substantively review language, which duty belonged to County Board of elections.

Objectors to ballot language relating to proposed amendment to city charter requiring appropriation of at least $50 million for affordable housing trust fund were not entitled to award of attorney fees or costs against county board of elections, Secretary of State, or city council, in mandamus proceeding in which objectors successfully challenged some of the language as being inappropriately argumentative, in absence of evidence that board, Secretary, or council acted in bad faith.




IMMUNITY - TEXAS

White v. City of Houston

Court of Appeals of Texas, Houston (1st Dist.) - March 25, 2021 - S.W.3d - 2021 WL 1133152

Driver sued city to recover damages for personal injuries that were allegedly sustained when unsecured firehose from one of city’s firetrucks became entangled in car’s rear axle while driver was in car and caused car to be dragged for 30 feet.

The District Court granted city’s plea to the jurisdiction. Driver appealed.

The Court of Appeals held that:

Driver, who purportedly was injured when unsecured firehose from city’s firetruck became entangled in his car’s rear axle and caused car to be dragged for 30 feet, alleged a claim that was legally sufficient to invoke Tort Claims Act’s waiver of governmental immunity for injuries caused by condition or use of tangible personal property, where driver alleged that hose, or compartment in which it was stowed, lacked integral safety component to secure hose in place while in transit, such safety components existed, and fire captain thought that those safety components were used in other firetrucks operated by city’s fire department.

Emergency exception to Tort Claims Act’s waiver of governmental immunity applied to suit brought by driver for personal injuries allegedly sustained when unsecured firehose from city’s firetruck dislodged while truck was en route to house fire and caused car accident, although act of stowing hose in truck occurred before emergency response; driver did not allege he was injured when firefighters stowed hose, claim necessarily arose from firefighters’ transport of allegedly negligently stowed hose while responding to emergency call, and firefighters were responding to emergency when accident happened.




ZONING & PLANNING - VIRGINIA

Stafford County v. D.R. Horton, Inc.

Supreme Court of Virginia - April 1, 2021 - S.E.2d - 2021 WL 1220736

Real estate developers filed petitions against county challenging county planning department’s determination that developers proposed development plans would need to undergo a comprehensive plan compliance review, and seeking writs of mandamus requiring county to approve their development plans, writs of prohibition preventing county from ordering a comprehensive plan review, declaration that county must approve their plans.

After developers’ petitions were consolidated, the Circuit Court rendered judgment in favor of developers. County appealed.

The Supreme Court held that:

Cluster development statute, which required municipalities to extend water or sewer services to cluster developments located within an area designated for such services, did not apply to real estate developers’ plans to construct a cluster development on their respective properties, and, thus, developers were required to submit their plans to county planning commission for approval, under planning commission review statute requiring commission’s approval for plans intending to construct a “feature” not shown on county’s comprehensive plan, where most of the land covered by the plans was outside of the area that the comprehensive plan designated for water and sewer services.

County planning commission’s approval of real estate developers’ plans to construct a subdivision on their respective properties did not exempt their amended plans for cluster developments from review, under statute mandating that the comprehensive plan adopted by county would control the location, character, and extent of “features” shown on the comprehensive plan; even though there were similarities between developers’ respective initial and amended plans, both of their amended plans involved more lots and more parcels not included in their initial plans, county had updated its comprehensive plan after developers’ initial plans were approved, and approval of developers’ initial plans did not cause any change to the comprehensive plan.




ZONING & PLANNING - WISCONSIN

Village of Slinger v. Polk Properties, LLC

Supreme Court of Wisconsin - April 1, 2021 - N.W.2d - 2021 WL 1216687 - 2021 WI 29

Village brought action for an injunction ordering landowner to stop agricultural use of property and later amended its complaint to state claim for lost tax revenue and claim for daily forfeitures for zoning law violations.

The Circuit Court enjoined agricultural use, entered summary-judgment order requiring landowner to pay forfeitures for zoning violations and damages for village’s lost property tax revenue, and, on village’s motion to have landowner held in contempt, awarded attorney fees to village. Landowner appealed. The Court of Appeals affirmed. Landowner petitioned for review.

The Supreme Court held that landowner did not cease the legal, nonconforming use of property for agriculture, despite building homes on property.

Landowner did not cease the legal, nonconforming use of property for agriculture, and thus landowner did not “abandon” legal, nonconforming use of land for agriculture, despite landowner’s actions of seeking and obtaining rezoning of land from agricultural to residential use, entering into development agreement restricting property to residential use, recording declaration explicitly stating that landowner intended to develop subdivision for residences, building couple of homes on property, and installing residential infrastructure; changes on property did not alter or expand legal, nonconforming use of farming and instead initiated development of property into residential conforming use.




IMMUNITY - WYOMING

Wyoming State Hospital v. Romine

Supreme Court of Wyoming - March 25, 2021 - P.3d - 2021 WL 1135510 - 2021 WY 47

Parents of patient who was sexually assaulted by certified nursing assistant brought action against state hospital asserting various claims of negligence under Wyoming Governmental Claims Act.

The District Court denied hospital’s motion for summary judgment. Hospital filed a notice of appeal or, in the alternative, a petition for writ of review.

The Supreme Court held that:

State hospital’s interlocutory appeal of district court’s determination, which was that there were genuine disputes of material fact as to whether claims brought by parents of patient who was sexually assaulted by certified nursing assistant constituted a single transaction or occurrence under Wyoming Governmental Claims Act, did not involve purely legal issue of whether the hospital was immune from suit under the Act, as required for Supreme Court’s jurisdiction over appeal, where section related to the State’s liability, not its immunity from suit, as section capped the hospital’s liability only if it was found to have waived its immunity from suit.

Wyoming Governmental Claims Act’s waiver of liability for negligence of health care providers is not limited to medical malpractice claims.




ZONING & PLANNING - CALIFORNIA

Travis v. Brand

Court of Appeal, Second District, Division 8, California - March 19, 2021 - Cal.Rptr.3d - 2021 WL 1049863 - 21 Cal. Daily Op. Serv. 2591

City residents brought action alleging that political candidates controlled political action committee created to oppose redevelopment of municipal waterfront, in violation of Political Reform Act.

The Superior Court entered judgment in defendants’ favor and awarded attorney fees. Plaintiffs appealed and appeals were consolidated.

The Court of Appeal held that:

Nonparties that funded action alleging that political candidates improperly controlled political action committee that had opposed their municipal beachfront redevelopment project had standing to appeal trial court’s order awarding candidates and committee attorney fees and costs incurred in action, where court found nonparties “were the true entity and persons behind the lawsuit,” and ordered its judgment to be entered against them.

Substantial evidence supported trial court’s that finding political action committee that opposed municipal waterfront redevelopment project was general purpose committee, and thus did not need to reclassify itself as primarily formed committee, in light of evidence that committee’s founders created it to support and oppose more than one candidate or ballot measure, that it was not involved in running principal campaign against project, that it was involved in many different activities, and that its political expenditures did not meet threshold for primarily formed committees.

Substantial evidence supported trial court’s finding that political action committee that opposed municipal waterfront redevelopment project was not controlled committee, even though political candidates supported committee’s efforts to stop project, and committee had fundraiser with candidates, in light of evidence that candidates did not direct or control committee, work on committee’s efforts to pass ballot measure opposing project, strategize with committee, have significant influence over committee, share office space with committee, or act jointly with committee.

Trial court acted beyond its authority by issuing judgment holding nonparties who funded action against political candidates and political action committee that opposed municipal waterfront redevelopment project liable for defendants’ attorney fees, even though nonparties had notice that case was ongoing, where they had no notice that judgment could include them.

Trial court had authority under Political Reform Act to award attorney fees to political candidates and political action committee that prevailed in action alleging that candidates violated Act by controlling committee, regardless of whether action was frivolous, unreasonable, or without foundation.




OPEN MEETINGS - CONNECTICUT

City of Meriden v. Freedom of Information Commission

Supreme Court of Connecticut - March 12, 2021 - A.3d - 2021 WL 952887

City sought review of determination by Freedom of Information Commission that gathering of four members of its 12-member city council, the city’s mayor, and the retiring city manager to discuss the search for a new city manager violated open meeting requirements of state’s Freedom of Information Act.

The Superior Court dismissed appeal. City appealed. The Appellate Court reversed and remanded with directions. Commission’s petition for certification to appeal was granted, as limited to specified issue.

The Supreme Court held that:




IMMUNITY - FLORIDA

Carollo v. Platinum Advisors, LLC

District Court of Appeal of Florida, Third District - March 24, 2021 - So.3d - 2021 WL 1112554

Limited liability company (LLC) brought action against city commissioner for breach of fiduciary duty, breach of agreement, and misappropriation of trade secrets, after commissioner, who had contracted with LLC to help secure government approval of a ferris wheel prior to his election, participated in a public discussion conducted by the city commission regarding the ferris wheel’s economic benefits.

The Circuit Court denied commissioner’s motion to dismiss on grounds of sovereign immunity. Commissioner appealed.

On clarification, the District Court of Appeal held that commissioner enjoyed absolute legislative immunity from civil suit.

City commissioner who, prior to his election, had contracted with limited liability company (LLC) to help LLC secure government approval of a proposed ferris wheel, enjoyed absolute legislative immunity from suit arising from comments he made at a public discussion conducted by the city commission regarding ferris wheel’s economic benefits; even if unethical, commissioner’s participation in the discussion was precisely the type of legislative conduct in which elected city commissioners were expected to engage.




ZONING & PLANNING - INDIANA

Department of Business and Neighborhood Services of Consolidated City of Indianapolis v. H-Indy, LLC

Court of Appeals of Indiana - March 19, 2021 - N.E.3d - 2021 WL 1047361

Two affiliated entities seeking to open retail store in city petitioned for judicial review of Board of Zoning Appeals’ (BZA) decision finding proposed use of site was “adult entertainment business,” which was not a permitted use in the zoning district and required variance, and declaratory judgment action against city department of business and neighborhood services (Department) alleging it violated entity’s constitutional rights by imposing unauthorized litigation hold on permit applications related to site until judicial review was completed.

Actions were consolidated, and all parties filed motions for summary judgment. The Superior Court issued order reversing BZA decision, ordering Department to issue requested permits, and declaring entity’s constitutional rights had been violated by imposition of litigation hold. City filed interlocutory appeal.

The Court of Appeals held that:

Board of Zoning Appeals’ (BZA) finding that proposed use of site for retail store was an adult bookstore requiring variance was arbitrary, capricious, and unsupported by substantial evidence; city department of business and neighborhood services’ (Department) license administrator made determination that proposed use was an adult bookstore without considering projected revenue data specific to proposed store, adult products were projected to make up a maximum of 18.1% of site’s weekly expected revenue and take up 12.% of retail floor space, and city could not prove entity seeking to operate store intentionally mischaracterized merchandise in order to fall below 25% floor space and weekly revenue limits.

Board of Zoning Appeals’ (BZA) finding that proposed use of site for retail store was an adult services establishment providing services in two or more specified categories requiring variance for operation was arbitrary, capricious, and unsupported by substantial evidence; city presented no evidence specific to proposed store that its proposed use was to provide services involving specified sexual activity or display of specified anatomical areas in any category other than the sale of books, magazines, periodicals, photos, films, cassettes, slides, tapes, or records.

Due process rights of entity seeking to open retail store in city were violated by unauthorized litigation hold placed by city department of business and neighborhood services (Department) until completion of judicial review of Board of Zoning Appeals (BZA) decision finding affiliated entity’s proposed use of site required variance, where entity had property interest in site, harm to entity occurred when department indicated it would not process any permit application, and any attempt by entity to submit applications would have been futile.

 

 




EMINENT DOMAIN - MASSACHUSETTS

Abuzahra v. City of Cambridge

Supreme Judicial Court of Massachusetts - February 17, 2021 - 486 Mass. 818 - 162 N.E.3d 653

After securing judgment in the Superior Court establishing his ownership over property at issue in action against the city, property owner filed motion to compel full tender of pro tanto payment with accrued interest.

The Superior Court Department issued interlocutory order denying the motion. Owner petitioned for interlocutory review. A single justice of the Appeals Court reversed the order. City appealed.

On transfer, the Supreme Judicial Court held that:

“Quick take” eminent domain statute, which immediately transfers ownership of property from property owner to the taking authority independent of judicial processes, permits the property owner to both accept a pro tanto payment for a taking and simultaneously challenge the lawfulness of that taking.

City’s appeal of determination by single justice of the Appeals Court, that “quick take” eminent domain statute allowed property owner to accept city’s pro tanto offer for the taking of his property while simultaneously challenging that underlying taking was not frivolous, and thus property owner was not entitled to recover attorney fees and double costs as sanction, even though Supreme Judicial Court affirmed the single justice’s order, since the case involved a novel question of law that the Court previously did not have occasion to address.




IMMUNITY - OHIO

Fulps v. City of Urbandale

Supreme Court of Iowa - March 19, 2021 - N.W.2d - 2021 WL 1044414

Pedestrian brought negligence action against city, seeking to recover damages for injuries she incurred from a fall on an allegedly uneven, damaged, and improperly maintained sidewalk.

The District Court dismissed the action. Pedestrian appealed.

The Supreme Court held that public-duty doctrine did not apply to bar negligence claim.

Public-duty doctrine did not apply to bar pedestrian’s negligence claim against city, seeking damages for injuries incurred by her fall on allegedly uneven, damaged, and improperly maintained sidewalk, where pedestrian’s petition alleged that, at all times material to the matter, the relevant section of uneven sidewalk was maintained by city.






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