Cases





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.




IMMUNITY - CALIFORNIA

City of Los Angeles v. Superior Court of Los Angeles County

Court of Appeal, Second District, Division 4, California - March 18, 2021 - Cal.Rptr.3d - 2021 WL 1034389 - 21 Cal. Daily Op. Serv. 2438

City filed petition for writ of mandate to challenge decision of the Superior Court overruling its demurrer to police officer’s wife’s complaint alleging negligence and dangerous condition of public property.

The Court of Appeal held that:

City had no duty to protect police officer’s wife from unsanitary conditions at police station, and thus was not subject to liability under Government Claims Act after she contracted typhus from her husband after he was exposed to disease at station; wife had no contact with station and did not allege exposure to any condition of subject property.

Police officer’s wife’s claims against city arising from its alleged failure to remedy unsanitary conditions at police station, which caused her to contract typhus after her husband was exposed to disease at station, fell within scope of statute immunizing city’s “decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease,” absent allegation that city violated any mandatory duties with respect to its decisions relating to spread of typhus on city property.




EMINENT DOMAIN - CALIFORNIA

Felkay v. City of Santa Barbara

Court of Appeal, Second District, Division 6, California - March 18, 2021 - Cal.Rptr.3d - 2021 WL 1034275 - 21 Cal. Daily Op. Serv. 2454

Owner of oceanfront lot filed a consolidated petition for writ of administrative mandamus and complaint for inverse condemnation after city denied coastal development permit to construct residence on lot.

The Superior Court denied mandamus relief but entered judgment on jury award for lot owner and awarded attorney and expert fees. City appealed.

The Court of Appeal held that:

Oceanfront landowner’s inverse condemnation action against city was ripe, as city had rejected a coastal construction permit variance or waiver and “made plain” that no development would be permitted below the 127-foot elevation.

Owner of oceanfront lot was not required to submit a second development proposal prior to bringing regulatory takings claim against city following denial of coastal development permit, as any additional proposals would have been futile; city’s expert noted there would be no point in going back to seek mitigation, as city mad plain that it would not permit any development below the 127-foot elevation, and the limited area above that elevation was unbuildable.

Owner of oceanfront lot sufficiently exhausted administrative remedies as required prior to bringing regulatory takings claim based on city’s denial of coastal development permit, where city planning commission and the city council were presented with the option to waive the full impact of their development policy by invoking California Coastal Act’s waiver provision, but they declined to do so, and after the court found a taking occurred, it gave the city option to grant permit, and city again declined to issue a permit, with or without conditions, and chose to proceed to trial on damages.

City was estopped from arguing that oceanfront lot owner’s failure to challenge on mandamus the city’s decision declining to waive the requirements of coastal development policy pursuant to the California Coastal Act precluded him from seeking damages for inverse condemnation following denial of coastal development permit, where stipulation limited issues to be heard on mandamus and reserved inverse condemnation issues for trial, mandamus petition proceeded to a ruling, and the city proceeded to trial without objecting that a trial was barred by a deficiency in the mandamus proceedings; following the ruling on mandamus, and by virtue of the parties’ stipulation, landowner had the right to proceed to trial to determine if the city was liable for a taking, and, if so, a jury trial on the amount of compensation.




REFERENDA - ILLINOIS

Jones v. Municipal Officers Electoral Board for City of Calumet City

Supreme Court of Illinois - March 11, 2021 - N.E.3d - 2021 IL 126974 - 2021 WL 925921

Mayoral candidate, who was also a member of the General Assembly, sought judicial review of decision of city’s electoral board that his name be removed from the primary election ballot due to recently passed city referendum providing that candidates could not seek the office of mayor while simultaneously holding an elected, paid state office.

The Circuit Court affirmed the board’s decision, and candidate appealed. The Appellate Court summarily reversed, and review was granted.

The Supreme Court holds that:

City referendum providing that candidates could not seek the office of mayor while simultaneously holding an elected, paid state office became legally effective on date the results of the referendum were certified and declared, rather than on election day when referendum was approved by a majority of voters, and thus, mayoral candidate, who was also a member of the General Assembly, was legally qualified to run for mayor when he filed his nomination papers after election day but before certification; counting and certification of ballots was not a purely ministerial task, and it would cause instability and confusion for election to be effective on election day, as it would create period of time where the results of the election were legally effective yet unknown to the public.

Individuals who brought objection before city’s electoral board seeking to have mayoral candidate, who was also a member of the General Assembly, removed from primary election ballot due to recently passed city referendum providing that candidates could not seek the office of mayor while simultaneously holding an elected, paid state office forfeited before Supreme Court their contention that even if candidate was qualified to run for mayor at the time he filed his nomination papers, the subsequently passed referendum operated to bar him from running for mayor, where the individual objectors did not raise this contention before the board.




IMMUNITY - MISSISSIPPI

Williams v. City of Batesville

Supreme Court of Mississippi - March 18, 2021 - So.3d - 2021 WL 1035076

Homeowner brought action against city for negligence and inverse condemnation arising out of sewer backup and flooding of homeowner’s property, which was resolved after a year by installation of a lift-station pump for homeowner’s property.

The Circuit Court granted city’s motion for summary judgment, and homeowner appealed.

The Supreme Court held that:




POLITICAL SUBDIVISIONS - NORTH CAROLINA

Benitez v. Charlotte-Mecklenburg Hospital Authority

United States Court of Appeals, Fourth Circuit - March 23, 2021 - F.3d - 2021 WL 1100661

Patient brought action against hospital authority, alleging violations of Sherman Act.

The United States District Court granted judgment on the pleadings. Patient appealed.

The Court of Appeals held that:

Hospital authority with authority to acquire real property by eminent domain and power to issue revenue bonds under North Carolina’s Local Government Revenue Bond Act for purpose of acquiring, constructing, or operating hospital facilities was “special function governmental unit” under Local Government Antitrust Act; although private corporations had some of same powers as hospital authority, some of authority’s powers were uniquely governmental powers.

Although ultimate answer of whether hospital authority qualified as a “special function governmental unit” under Local Government Antitrust Act was function of federal law, Congress’ pairing of term “special function governmental unit” with phrase “established by State law in one or more States” required court to consider state law.

Quasi-municipal corporations are commonly used in North Carolina to perform ancillary functions in government more easily and perfectly by devoting to them, because of their character, special personnel, skill and care; in such instances, for purposes of government and for the benefit and service of the public, the State delegates portions of its sovereignty, to be exercised within particular portions of its territory, or for certain well-defined public purposes.

Mere growth of hospital authority did not prevent it from continuing to be considered “special function governmental unit” under the Local Government Antitrust Act, since Act only asked only whether organization qualified as a “local government,” as defined by Act, and that determination required examining state law applicable to entity’s creation, which did not contain any such limitation.




REFERENDA - OHIO

State ex rel. Walker v. LaRose

Supreme Court of Ohio - March 17, 2021 - N.E.3d - 2021 WL 1022451 - 2021-Ohio-825

Electors sought writ of mandamus seeking to compel Secretary of State, county board of elections, and city to change language on primary-election ballot relating to proposed ordinance to relocate city municipal court or to strike issue from ballot entirely.

The Supreme Court held that:

Electors were not entitled to mandamus relief compelling Secretary of State to change ballot language of local issue related to proposed ordinance governing relocation of municipal court on primary-election ballot or to strike issue from ballot entirely; Secretary complied with statutory duty to give final approval to form of ballot language, electors did not assert that final-approval statute imposed any further duties on Secretary to review of proposed ordinance for content, and while electors cited statutes relating to form of official ballots and duties of board of elections, they did not explain how those statutes supported duty on part of Secretary to amend ballot language in manner they sought.

Electors were not entitled to mandamus relief compelling city to change ballot language of local issue related to proposed ordinance governing relocation of municipal court on primary-election ballot or to strike issue from ballot entirely, where electors cited no statute stating that city had power, much less duty, to amend ballot language approved by board of elections or to remove an issue from the ballot.

Initiative passed by city electors prohibiting city from using funds to undertake demolition and construction relating to relocation of city municipal court without “a majority vote of the qualified electors” who were residents of city required proposed ordinance regarding relocation of court to be passed by majority affirmative vote, and not affirmative vote of all qualified electors of the city, including electors who did not vote on the issue; language of initiative was not enough to depart from general rule that simple majority of votes cast was all that was required for passage of ballot issue.

County board of elections’ ballot language for proposed ordinance relating to relocation of city municipal court to county courthouse, which contained full text of ordinance, did not violate statute allowing the board to place a summary of an issue on the ballot in lieu of the issue’s full text, without any persuasive argument in favor of or against the issue, though objecting electors asserted that use of phrase “so as to preserve the 1969 courthouse as a court building” was misleading and improperly designed to appeal to preservationist voters; board did not draft summary of ordinance for ballot in lieu of full text, and there was no apparent basis for requiring board to amend allegedly persuasive and misleading language when full text was placed on ballot.

Ballot language approved by county board of elections indicating title of “Proposed Ordinance of City of Medina Ordinance No. 222-20” for proposed ordinance regarding relocation of city municipal court complied with statute requiring a “brief title descriptive of the question or issue below it,” which provided examples that would suffice, including “Proposed Constitutional Amendment,” “Proposed Annexation of Territory,” and “Proposed Increase in Tax Rate.”




ANNEXATION - CALIFORNIA

San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach

Court of Appeal, Second District, Division 6, California - March 3, 2021 - Cal.Rptr.3d - 2021 WL 803740 - 21 Cal. Daily Op. Serv. 2067 - 2021 Daily Journal D.A.R. 2094

County’s local agency formation commission and non-profit organization that reimbursed commission brought action against city and developer, seeking $400,000 for attorney fees and costs incurred in defending an appeal brought by city and developer after the commission denied their application for annexation of real property, which contained an indemnity agreement.

The Superior Court granted city and developer judgment on the pleadings, and denied commission’s request for leave to amend. Commission and non-profit organization appealed.

The Court of Appeal held that:

Provision contained in application for annexation of real property, stating that applicants agreed to indemnify county’s local agency formation commission for attorney fees and costs incurred in connection with the application, was not supported by consideration, as required for a contract; commission’s insertion of indemnity provision into application in exchange for not requiring applicants to pay anticipated attorney fees in advance was neither a benefit nor a detriment, because commission had no authority under the Cortese-Knox-Hertzberg Act to charge fees for post-administrative matters.

County’s local agency formation commission, which was established under the Cortese-Knox-Hertzberg Act, had no authority under the Act to require applicants for annexation of real property to agree to indemnify commission for attorney fees and costs incurred after the conclusion of administrative proceedings; even if construed as broadly as possible, Act limited commission’s authority to charge fees to the administrative process, not post-decision court proceedings.




MUNICIPAL CORPORATIONS - GEORGIA

Harris v. City of South Fulton

Court of Appeals of Georgia - March 8, 2021 - S.E.2d - 2021 WL 854888

Petitioners brought action for declaratory and injunctive relief, alleging their neighborhood was not included in the incorporation of city.

The trial court denied the petition, and petitioners appealed.

The Court of Appeals held that:

Trial court did not retroactively redraw newly incorporated city’s boundaries by including petitioner’s neighborhood, even though neighborhood had allegedly been annexed by another city, where the neighborhood was incorporated into the newly incorporated city before referendum, was included in the referendum vote, and could only have left the city if the referendum had failed.

District court did not abuse its discretion by denying resident petitioners’ voting rights and equal protection claims, even assuming their rights were violated because they could not vote on referendum to incorporate city; the result of the election could only be contested when the challenge involved votes of a sufficient number to make a difference or cast doubt on the outcome, and even assuming that all of the 404 registered voters who were unable to cast ballots had voted against the referendum, the referendum would have still passed where it was carried by over 7,000 votes.




PUBLIC UTILITIES - GEORGIA

City of Sandy Springs v. City of Atlanta

Court of Appeals of Georgia - February 26, 2021 - S.E.2d - 2021 WL 750431

First city brought action against second city, which was the county’s retail water service provider pursuant to a previously-executed service delivery agreement, alleging violations of the Open Records Act and Service Delivery Strategy (SDS) Act and seeking injunctive relief, stemming from second city’s refusal to review and revise purportedly arbitrary and unreasonable water rate differentials.

The Superior Court dismissed the claims alleging violations of the SDS Act, and denied first city’s motion to transfer venue. First city appealed.

The Court of Appeals held that:

First city was not an “affected municipality” within meaning of Service Delivery Strategy Act entitled to mandatory mediation, conducted in a separate jurisdiction, of its claim that refusal of second city, the county’s retail water service provider pursuant to terms of previously-executed service delivery agreement, to review and revise water rates charged to first city’s customers violated the Act, where first city was not an express party to agreement, was unincorporated when agreement was originally executed, and never passed a resolution adopting agreement.

First city was required to submit its challenge to the reasonableness of the water rate differential imposed by second city, the county’s retail water service provider pursuant to the terms of a previously-executed service delivery agreement, to some form of alternative dispute resolution before bringing challenge in court, under section of the Service Delivery Strategy Act providing the process for a governing authority to challenge water and sewer rate differential imposed by another governing authority located in same jurisdiction.




PUBLIC EMPLOYMENT - NEW JERSEY

Delanoy v. Township of Ocean

Supreme Court of New Jersey - March 9, 2021 - A.3d - 2021 WL 865354

Police officer brought action against township, her employer, asserting claims for pregnancy discrimination in violation of the New Jersey Law Against Discrimination (LAD), as modified by the New Jersey Pregnant Workers Fairness Act (PWFA).

The Superior Court granted township’s motion for summary judgment and denied officer’s cross-motion for summary judgment. Officer appealed. The Superior Court, Appellate Division, reversed in part, vacated in part, and remanded. Township’s petition for certification was granted.

Addressing issues of first impression, the Supreme Court held that:




EMINENT DOMAIN - PENNSYLVANIA

PBS Coals, Inc. v. Department of Transportation

Supreme Court of Pennsylvania - January 20, 2021 - 244 A.3d 386

Coal companies brought action against Pennsylvania Department of Transportation (DOT), alleging that condemnation of property deprived companies of access to coal estate.

After a hearing, the Court of Common Pleas ruled that a de facto taking had not occurred and sustained Department’s preliminary objections to companies’ petition for appointment of a board of viewers. Companies appealed. The Commonwealth Court reversed and remanded. DOT petitioned for review.

The Supreme Court held that:




EMINENT DOMAIN - UTAH

Cardiff Wales LLC v. Washington County School District

Court of Appeals of Utah - March 4, 2021 - P.3d - 2021 WL 822216 - 2021 UT App 21

Former landowner brought action against school district and developer for declaratory relief and to set aside school district’s sale of landowner’s former property to developer after school district decided not to build high school on property, alleging violation of statutory right of first refusal for property acquired under threat of condemnation.

The Fifth District Court dismissed. Former landowner appealed.

The Court of Appeals held that school district’s purported pre-sale statements about ability to use eminent domain, without any vote approving use of power, were not a “threat of condemnation” triggering right of first refusal.

School district’s purported statements to landowner, before parties entered into sales agreement, that school district would use its eminent domain powers to acquire landowner’s property if necessary did not involve a specific authorization of use of eminent domain, and thus statements did not qualify as a “threat of condemnation” under statute providing for right of first refusal to a grantor upon a declaration, by the state or one of its subdivisions, that property obtained by threat of condemnation was surplus real property, where there was no vote and approval of use of eminent domain power by school district, which originally wanted to build high school on property.




STORMWATER UTILITY FEES - FLORIDA

School Board of Miami-Dade County, Florida v. City of Miami Beach, Florida

District Court of Appeal of Florida, Third District - February 24, 2021 - So.3d - 2021 WL 709763

City sued county school board to demand that school board pay municipal stormwater utility fees.

The Circuit Court denied school board’s motion to dismiss which was based on sovereign immunity. School board appealed the non-final order.

The District Court of Appeal held that school board was protected by sovereign immunity from paying municipal stormwater utility fees.

County school board, which owned ten developed properties that operated as public schools in the city, was protected by sovereign immunity from paying municipal stormwater utility fees; there was no written contract between school board and city to collect stormwater utility fees, and repealed statute stating that city could charge reasonable assessments to those who benefited from city’s drains and sewers was not a clear and unequivocal legislative expression of intent needed to waive sovereign immunity, despite additional statute saying that the repeal did not prevent municipalities from exercising all powers previously conferred.




PUBLIC UTILITIES - ILLINOIS

Brotze v. City of Carlinville

Appellate Court of Illinois, Fourth District - March 2, 2021 - N.E.3d - 2021 IL App (4th) 200369 - 2021 WL 791651

City residents brought action against city, village, nonprofit corporation, and new water company formed by the three entities, seeking declaratory judgment that city and village could not participate in the formation or continued funding and operation of new water company, which was formed for purpose of creating a potable water supply.

The Circuit Court dismissed residents’ claims for lack of standing, and allowed residents to file an amended complaint against city. After residents filed an amended complaint seeking mandamus, the Circuit Court entered summary judgment against city, and declared new water company was an illegal company. City and new water company appealed, and appeals were consolidated.

The Appellate Court held that city acted within its authority when it joined with village and nonprofit corporation to create new water company to build and maintain a water supply for its members.

City acted within its authority, under state constitutional provision governing intergovernmental cooperation, to join together with village and nonprofit corporation to create new water company for purpose of building and maintaining a water supply for its members; constitutional provision authorized units of local government to contract or associate among themselves and with corporations in any manner not prohibited by law or by ordinance, there was no statute or ordinance that prohibited city, village, and nonprofit corporation from joining together to form water company, and each municipality and nonprofit had the authority to do individually what they wished to do collectively.

City was not required to contract “and” associate with nonprofit corporation when it joined with other municipality and nonprofit corporation to create new water company to build and maintain a water supply for its members, and thus new water company was valid nonprofit corporation even though city did not enter into any contracts; state constitutional provision governing intergovernmental cooperation stated units of local government could contract “and” otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or ordinance, and this provision authorized units of local government to contract, associate, or contract and associate with private entities.




IMMUNITY - NEW JERSEY

Maison v. New Jersey Transit Corporation

Supreme Court of New Jersey - February 17, 2021 - A.3d - 2021 WL 608269

Bus passenger brought negligence action against state transit system and bus driver arising from incident in which co-passenger threw glass bottle at her causing facial injuries following her harassment by group of male teenage co-passengers at back of bus.

The Superior Court entered judgment upon jury verdict for passenger. Defendants appealed. The Superior Court, Appellate Division, affirmed in part, vacated in part, and remanded. Cross-petitions for certification were granted.

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




IMMUNITY - NORTH CAROLINA

Hicks v. KMD Investment Solutions, LLC

Court of Appeals of North Carolina - March 2, 2021 - S.E.2d - 2021 -NCCOA- 39 - 2021 WL 786599

Motorist and passenger brought negligence action against North Carolina Department of Transportation (NCDOT), seeking damages for injuries sustained in automobile accident that occurred when water flowed from debris-filled ditch onto highway and froze.

The Superior Court denied NCDOT’s motion for directed verdict during jury trial and later denied NCDOT’s motion for judgment notwithstanding the verdict (JNOV) and entered judgment in favor of motorist and passenger. NCDOT appealed.

The Court of Appeals held that sufficient evidence supported jury’s finding that NCDOT had constructive notice of deficient condition of ditch and thus breached its duty to maintain highway.

In personal-injury action arising from automobile accident that occurred when water flowed from ditch onto highway and froze, sufficient evidence supported jury’s finding that North Carolina Department of Transportation (NCDOT) had constructive notice of deficient condition of ditch and thus breached its duty to maintain highway; evidence indicated that NCDOT violated its own guidelines in maintenance of ditch, which was completely filled in at time of accident, ditch had been at least 50% filled in for at least six months before accident, and deficient condition of ditch was clearly visible.




IMMUNITY - OHIO

Eikenberry v. Municipality of New Lebanon

Court of Appeals of Ohio, Second District, Montgomery County - February 19, 2021 - N.E.3d - 2021 WL 650485 - 2021 -Ohio- 453

Apartment building owner brought negligence action against city alleging that city’s negligent failure to reinstate lateral sewer service connection from building to main sewer pipe during city’s rehabilitation of sewer main caused sewage to backup into basement.

The Court of Common Pleas granted summary judgment for city. Owner appealed.

The Court of Appeals held that:

Negligence claim against city arising from city’s alleged negligent failure to reinstate lateral sewer service connection from apartment building to sewer main in connection with city’s efforts to rehabilitate its deteriorating sewer main involved a governmental function that was more than routine maintenance, and therefore city had immunity under Political Subdivision Tort Liability Act from claim arising from sewage backup into building’s basement, where rehabilitation involved installation of cured-in-place pipe (CIPP) using special materials and specialized equipment, rehabilitation was essentially an upgrade to sewer system, rehabilitation involved considerable discretion by city, and project was funded through a state grant for capital improvement projects.

Statements in civil engineer’s summary judgment affidavit that, in his professional opinion, city’s efforts to rehabilitate the sewer main amounted to maintenance and upkeep of a sewer system, which would fall under category of proprietary function for which city would not have immunity under Political Subdivision Tort Liability Act, were legal conclusions that were subject to being stricken in negligence action against city arising from sewage backup in apartment building’s basement due to city’s alleged negligent failure to reinstate the lateral sewer service connection from building to sewer main; engineer’s statements were in effect a notarized legal argument.




EMINENT DOMAIN - PENNSYLVANIA

Pileggi v. Newton Township

Commonwealth Court of Pennsylvania - January 5, 2021 - A.3d - 2021 WL 29266

Landowners brought inverse condemnation against township alleging de facto taking arising from township’s denial of landowners’ submissions for alternative sewage treatment facility that was not permitted under township’s official sewage facilities plan which was approved by Department of Environmental Protection (DEP) or under sewage disposal ordinance.

The Court of Common Pleas granted township’s preliminary objections and dismissed. Landowners appealed.

The Commonwealth Court held that:

Township acted pursuant to its police power and not power of eminent domain in denying landowners’ submissions for alternative sewage treatment facility that was not permitted under plain terms of township’s official sewage facilities plan and sewage disposal ordinance, and therefore no de facto taking occurred, even if a member of township’s planning commission stated that the undesired result of all of landowners’ lots becoming buildable would occur if landowners put in sewage system, where there was no evidence that impetus for regulations was a concern for visual appearance of township’s sewer infrastructure, and township’s plan and ordinance detailed steps to obtain a permit to construct on-lot sewage system and explained which sewage facilities were acceptable.

Township did not engage in a regulatory taking in denying landowners’ submissions seeking alternative sewage treatment facility that was not permitted under plain terms of township’s official sewage facilities plan and sewage disposal ordinance; landowners’ interest in obtaining sewer service was nothing but an inchoate interest in the conferral of a benefit to enhance market value and, assuming that landowners would not obtain approval of desired alternative treatment plan, it was possible that landowners could still use a community on-lot or an individual on-lot sewage system if they decided to pursue such a course of action.

Landowners’ assertions, in inverse condemnation action, that township and Department of Environmental Protection (DEP) engaged in unreasonable, arbitrary, and discriminatory actions in handling or disposing of landowners’ submissions seeking approval of proposed alternative sewage treatment facility were impermissible collateral attacks on validity of administrative decisions; any error in that regard should have been pursued through the administrative appeal process.




BANKRUPTCY - PUERTO RICO

In re Financial Oversight And Management Board for Puerto Rico

United States Court of Appeals, First Circuit - March 2, 2021 - F.3d - 2021 WL 791605

Order was entered the by United States District Court confirming debt adjustment plan in debt restructuring proceedings under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

Creditors, after failing to seek a stay of order and unsuccessfully moving for reconsideration, belatedly filed notice of appeal two years after the plan was fully implemented, and debtor moved to dismiss on equitable mootness grounds.

The Court of Appeals held that appeal that creditors belatedly sought to pursue from unstayed order of district court confirming debt adjustment plan was equitably moot.

Appeal that creditors belatedly sought to pursue from unstayed order of district court confirming debt adjustment plan, in debt restructuring proceedings under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), was equitably moot more than two years after the plan had been fully implemented, and after tens of thousands of transactions worth billions of dollars had been implemented by third parties relying in good faith on finality of plan confirmation order; upsetting those transactions more than two years later to afford relief to creditors that had slept on their rights by not attempting to obtain stay would throw those transactions into doubt and unfairly harm innocent third parties.

Dismissal, as equitably moot, of appeal that creditors belatedly sought to pursue from unstayed order of district court confirming debt adjustment plan in debt restructuring proceedings under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), without addressing the merits of creditors’ challenge to plan, would not violate their due process rights; creditors had opportunity to brief their case and to present oral argument on the various issues raised by their appeal.

Plan proponents were not barred, by “unclean hands” doctrine, from raising equitable mootness doctrine in order to bar creditors from belatedly appealing from unstayed order of district court confirming debt adjustment plan in debt restructuring proceedings under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), two years after the plan was fully implemented; while creditors vaguely asserted that the plan proponents had engaged in misconduct by “steamroll[ing]” the confirmation of plan, creditors received notice of the plan, objected to it in writing, participated in the confirmation hearing, and had their objection heard and addressed by the court, and were “steamrolled” only in sense that they lost quickly.




CONTRACTS - TENNESSEE

Elvis Presley Enterprises, Inc. v. City of Memphis

Supreme Court of Tennessee - February 24, 2021 - S.W.3d - 2021 WL 714651

Prospective concert facility developer brought action against city and professional basketball team, seeking declaratory judgment concerning rights and obligations of parties under contract that restricted city from providing tax incentives or other benefits for facilities that would compete with arena where team played.

The Chancery Court dismissed the complaint based on lack of standing. Developer appealed. The Court of Appeals, Armstrong affirmed on ground that res judicata barred the action.

On appeal by permission, the Supreme Court held that dismissal for failure to exhaust administrative remedies did not constitute an “adjudication on the merits” for purposes of res judicata.




BALLOT INITIATIVE - TEXAS

In re Durnin

Supreme Court of Texas - March 2, 2021 - S.W.3d - 2021 WL 791079

Proponents of voter-initiated city ordinance regarding camping, sitting or lying down on public sidewalks, sleeping outdoors, and aggressively soliciting money petitioned for writ of mandamus to amend ballot language.

The Supreme Court held that word “anyone” was misleading and needed to be stricken from ballot proposition as ordinance contained several exceptions.

Word “anyone” was misleading and needed to be stricken from ballot proposition stating that proposed ordinance would create criminal offense for “anyone sitting or lying down on a public sidewalk or sleeping outdoors” in certain areas and “anyone camping in a public area not designated by the Parks and Recreation Department”; the proposed ordinance did not criminalize all instances of sitting or lying down on a sidewalk, proposition did not mention several exceptions, and proposed ordinance retained significant exception that prohibited police officer from citing a person for illegal camping before making a reasonable effort to advise camper of alternatives and contact someone with authority to provide transportation and services.




IMMUNITY - TEXAS

Tercero v. Texas Southmost College District

United States Court of Appeals, Fifth Circuit - February 24, 2021 - F.3d - 2021 WL 709569 - 2021 IER Cases 65,916

Former employee of state junior college district brought action against district, asserting a procedural due process claim under § 1983 and a breach of contract claim under state law, arising out of her termination.

Following jury verdict for employee, the United States District Court vacated jury’s verdict on employee’s breach of contract claim and reduced damages award on her procedural due process claim to $1. Employee appealed.

The Court of Appeals held that:

Texas Legislature’s abrogation of governmental immunity owed to local governmental entities for purpose of breach of contract claims applied to former employee’s breach of contract claim against state junior college district, brought in federal court under its supplemental jurisdiction, notwithstanding provision in immunity-waiver statute that purportedly excluded suits brought in federal court from the waiver; state did not have power to limit federal jurisdiction; abrogating Olford v. City of Hous., 2018 WL 3208196; Smith v. Hous. Indep. Sch. Dist., 229 F. Supp. 3d 571; Scherff v. S. Tex. Coll., 2017 WL 3783042; Nationwide Pub. Ins. Adjusters, Inc. v. Edcouch-Elsa Indep. Sch. Dist., 913 F. Supp. 2d 305.




MUNICIPAL ORDINANCE - WASHINGTON

City of Edmonds v. Bass

Court of Appeals of Washington, Division 1 - February 22, 2021 - P.3d - 2021 WL 672333

Individual gun owners brought action challenging city ordinance that made it a civil infraction to allow a minor, at-risk person, or prohibited person access to a firearm that was not secured by a locking device, or to store unlocked any firearm.

The Superior Court granted gun owners’ motion for summary judgment in part, and permanently enjoined city from enforcing ordinance provision that made it a civil infraction if a minor, at-risk person, or prohibited person obtained a firearm from an owner’s premises that was not secured by a locking device. City appealed.

The Court of Appeals held that:

Individual gun owners had standing to challenge city ordinance that made it a civil infraction to allow a minor, at-risk person, or prohibited person access to a firearm that was not secured by a locking device, or to store unlocked any firearm, even if gun owners had no intention of violating the ordinance; whether the provision was preempted by state law was an issue of public importance, and the gun owners testified that they had an interest in keeping their firearms unsecured in the presence of unauthorized users, and they would have to deviate from their storage practices to avoid violating the ordinance.

City ordinance that made it a civil infraction to allow a minor, at-risk person, or prohibited person access to a firearm that was not secured by a locking device, or to store unlocked any firearm, was preempted by state statute that preempted the entire field of firearms regulation within the boundaries of the state; the legislature expressed its intent to fully occupy and preempt the entire field of firearms regulation.




MUNICIPAL CORPORATIONS - ILLINOIS

145 Fisk, LLC v. Nicklas

United States Court of Appeals, Seventh Circuit - January 26, 2021 - 986 F.3d 759

Developer brought § 1983 action against city manager, alleging manager sought to retaliate against developer in violation of its First and Fourteenth Amendment rights by terminating city’s preliminary agreement with developer to allocate development incentive funds for hotel development project.

The United States District Court dismissed action. Developer appealed.

The Court of Appeals held that:

Actions of attorney, who later became member of limited liability company (LLC) developer, on behalf of a client in prior lawsuit in which city manager was called as a witness, did not implicate attorney’s First Amendment right to petition the government, and thus could not serve as the required protected conduct to satisfy first prong of developer’s First Amendment retaliation claim against city manager alleging manager retaliated against developer by terminating city’s preliminary agreement to allocate development incentive funds to developer; attorney’s actions on behalf of his client, who was not involved with developer or incentive fund agreement with city, only constituted client’s exercise of his First Amendment petition rights, not an exercise of attorney’s or developer’s rights.

Preliminary development incentive agreement between city and developer, under which city was to provide $2.5 million to developer to finance redevelopment of dilapidated property, and city’s resolution approving the agreement, did not confer a constitutionally protected property interest on developer, and thus city’s termination of agreement did not deprive developer of its property in violation of Due Process Clause; under Illinois law, city’s resolution approving the agreement only constituted an expression of city’s opinion, resolution did not mandate a particular result based on stated criteria, agreement itself provided that developer acknowledged that city was not required to provide the incentive, and contract for building was conditioned on execution of final development agreement.

There was a rational basis for city manager to recommend termination of preliminary development incentive agreement with developer, under which city was to provide $2.5 million to developer to finance redevelopment of dilapidating property, thus defeating developer’s equal protection claim against manager under a class-of-one theory premised on developer’s allegation that manager blocked the project out of animus for developer’s member embarrassing him in prior lawsuit; manager relied on developer’s own submissions about the corporate entity and its principals’ finances to conclude that project was not financially viable, which developer failed to refute, other concerns were raised at city council meeting, including developer’s failure to submit required development plans, and manager expressed concern about developer’s lack of experience in hotel development.




ZONING & PLANNING - INDIANA

City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation

Supreme Court of Indiana - February 23, 2021 - N.E.3d - 2021 WL 717972

Property owner sought judicial review of decision by city’s zoning board of appeals, which upheld notices of violation (NOVs) issued to owner regarding property leased to a fraternity that subsequently lost state university’s sanction.

The Circuit Court entered judgment in favor of property owner, finding the ordinance unconstitutional. Board appealed. The Court of Appeals affirmed. Petition to transfer was filed.

Transfer was granted. The Supreme Court held that:




MUNICIPAL CORPORATIONS - MARYLAND

Mayor and City Council of Baltimore v. ProVen Management, Inc.

Court of Appeals of Maryland - March 1, 2021 - A.3d - 2021 WL 772309

City contractor petitioned for review of decision by director of public works denying an additional $1.6 million in compensation under contract to clean sewers.

The Circuit Court affirmed. Contractor appealed. The Court of Special Appeals denied city’s motion to dismiss appeal and remanded with instructions to remand case to agency. City’s petition for writ of certiorari was granted.

The Court of Appeals held that contractor’s petition was in form and substance a petition for judicial review of agency decision arising under city charter, rather than common law action for writ of mandamus, and, thus, affirmance was not reviewable by Court of Special Appeals.

City contractor’s petition for review of decision by public works director to deny additional compensation in recorded proceeding with a transcript was in form and substance a petition for judicial review of agency decision arising under city charter, rather than common law action for writ of mandamus, and, thus, circuit court affirmance was not reviewable by Court of Special Appeals under city charter; although petition alleged violation of due process and director’s failure to review entire record and provide sufficient factual basis or adequate opportunity to address claims, most contentions related to substantive compensable claims, and contractor sought to overturn decision on monetary claims with limited remand for determination of damages, rather than order to perform




EMINENT DOMAIN - NEW MEXICO

City of Albuquerque v. SMP Properties, LLC

Supreme Court of New Mexico - February 25, 2021 - P.3d - 2021 WL 732243

City filed complaint for condemnation to acquire commercial property on which city wanted to build a road, and after city was granted possession and right to work on the property, the commercial property owners argued in their answer that $143,850 city had deposited with court was not just compensation and that city’s actions caused owners’ tenant not to renew its lease.

The District Court granted city’s motion for partial summary judgment, and entered a stipulated final judgment for condemnation. Property owners appealed, and the Court of Appeals reversed. The Supreme Court granted certiorari review.

The Supreme Court held that:

Genuine issue of material fact as to substantial interference by city before condemnation of part of commercial landowner’s property, including nature and extent of communications with commercial tenant, which failed to renew lease with landowner, and whether such communications were reasonable and diligent efforts at negotiation, precluded summary judgment for city on landowner’s inverse condemnation claim seeking consequential damages for loss of tenant leases.

Value of commercial landowner’s lease with tenant was potentially a compensable element of damages for city’s partial taking of commercial landowner’s property.




EMINENT DOMAIN - NEW YORK

Village of Haverstraw v. Ray River Co., Inc.

Supreme Court, Appellate Division, Second Department, New York - February 24, 2021 - N.Y.S.3d - 2021 WL 710499 - 2021 N.Y. Slip Op. 08191

Condemnees brought action against village as condemnor seeking compensation arising from the taking of condemnees’ real property.

Following nonjury trial, the Supreme Court, Rockland County, issued order awarding condemnees $8,950,000 as just compensation. The Supreme Court subsequently entered judgment upon the order in favor of condemnees in the principal sum of $6,810,000. Village appealed, and condemnees cross-appealed.

The Supreme Court, Appellate Division, held that:

Record established that highest and best use of condemnees’ real property on title vesting date was 80–unit townhouse configuration, for purposes of calculating damages for village’s taking of the property; condemnees’ proposed mix of 131 units in five-story high rise dwelling, representing the maximum number of units permitted under zoning code, did not consider construction costs, and lacked data to substantiate their expert’s assertion that proposal would be profitable due to high absorption rates for residential properties in area, whereas village’s appraiser opined that 80–unit townhouse configuration avoided additional costs associated with condemnees’ proposal and his appraisal included exhibits detailing construction and development costs underlying his analysis.

In action by condemnees for compensation for taking of their real property, contract of sale for the subject property was not a reliable indicator of the subject property’s value, and thus trial court providently declined to afford any weight to it, where contract was dated over 14 years earlier, and the purchaser admitted at trial that he conducted almost no due diligence before or after consummating it.

Sufficient evidence supported village’s market conditions adjustment and topography adjustment for purposes of determining fair market value of subject real property, in condemnees’ action to determine just compensation of real property condemned by village, where village’s appraiser provided sufficient facts, figures, and calculations to support both adjustments, including charts depicting change in housing prices around the time of the vesting date.




BOND INSURANCE - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States Court of Appeals, First Circuit - March 3, 2021 - F.3d - 2021 WL 805936

Insurers of bonds issued by the Puerto Rico Highways and Transportation Authority (HTA) moved for relief from automatic stay so that they could seek to apply certain revenues collected by Puerto Rico and the HTA to the payment of claims stemming from HTA bonds.

The United States District Court denied motion, and insurers appealed.

The Court of Appeals held that district court did not abuse its discretion in denying stay relief motion and in not allowing companies that had insured bonds to bring suit in another forum challenging the Commonwealth’s decision to suspend payment on the bonds.

On motion for relief from automatic stay that was triggered by commencement of Title III case under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), district court did not abuse its discretion in denying motion and in not allowing companies that had insured bonds issued by certain Commonwealth entities to bring suit in another forum challenging the Commonwealth’s decision to suspend payment on the bonds; grant of stay relief to allow companies to commence litigation in another forum, when the issues that they sought to raise would ultimately be addressed in Title III case, would not promote judicial economy and would interfere with bankruptcy case.




NEGLIGENCE - UTAH

Feldman v. Salt Lake City Corporation

Supreme Court of Utah - January 28, 2021 - P.3d - 2021 WL 279709 - 2021 UT 4

Husband and children of victim who drowned in city park brought action against the city, alleging claims for negligence, premises liability, negligent infliction of emotional distress, vicarious liability, and wrongful death.

Third District Court granted city’s motion to dismiss. Plaintiffs appealed.

The Supreme Court held that:




IMMUNITY - VIRGINIA

AlBritton v. Commonwealth

Supreme Court of Virginia - February 4, 2021 - 853 S.E.2d 512

Inmate in a state penitentiary sued the Commonwealth of Virginia, alleging that he was injured when he fell down stairs which were allegedly negligently maintained by the Department of Corrections (DOC).

The Sussex Circuit Court granted the Commonwealth’s plea in bar and entered summary judgment dismissing inmate’s complaint, and he appealed.

The Supreme Court held that:




EMINENT DOMAIN - ARKANSAS

Convent Corporation v. City of North Little Rock

Supreme Court of Arkansas - January 28, 2021 - S.W.3d - 2021 Ark. 72021 WL 297242

Landowner brought putative class action against city seeking injunctive relief, declaratory judgment, and damages for violation of civil rights and trespass following city’s resolution condemning structure as public nuisance.

Following removal to federal court and return, the Circuit Court denied landowner’s motion for class certification, dismissed several claims, and denied landowner’s motion for a judgment on the pleadings. Landowner appealed, and the Supreme Court reversed and remanded. Upon remand, the Circuit Court entered an order finding that substantial evidence supported the city council’s determination that the property was a nuisance. Landowner appealed, and the Supreme Court dismissed the appeal as from a nonfinal order. Landowner thereafter filed an amended and reinstated petition for declaratory judgment, seeking a declaration that the city’s ordinance related to condemnation proceedings was unconstitutional. The Circuit Court granted city’s motion for summary judgment, and landowner appealed.

The Supreme Court held that:

Commercial landowner had standing to bring appeal challenging city’s condemnation of its property, although it failed to pay taxes for certain years and did not redeem the property until after the condemnation proceedings were commenced, where landowner was named and recognized as the property owner by the city in its condemnation proceeding and resolution, and landowner also retained the right to redeem the property during the relevant time period by paying the delinquent taxes.

Commercial landowner’s challenge that city’s condemnation decision was not supported by substantial evidence and was arbitrary and capricious was moot, where landowner only requested that city resolution ordering its property condemned as a nuisance be overturned, structure had already been razed by the city, and landowner had not requested a stay of the circuit court’s final order or attempted to post a bond to prevent destruction of the property.

Issue of whether circuit court erred in action challenging condemnation by dismissing landowner’s constitutional claims, civil-rights claims, and common-law claim of trespass, on the basis that it had failed to exhaust its administrative remedies, was not moot on grounds that, after court rejected landowner’s appeal of the condemnation decision, it then considered landowner’s amended and reinstated petition for declaratory judgment, which raised only a facial challenge to the condemnation ordinance and procedures; court had declined to reinstate claims in order deciding the administrative appeal, despite the fact that landowner filed a motion requesting it to do so, court did not rule on the merits of the claim, and landowner did not voluntarily dismiss or otherwise abandon them.

Exhaustion of administrative remedies doctrine did not preclude landowner from bringing constitutional, civil-rights, and trespass claims in conjunction with appeal from city’s condemnation decision; while it may have been appropriate for the circuit court to first rule on the administrative appeal before proceeding to the additional claims, the court denied without explanation landowner’s motion to reinstate the claims once the administrative appeal had been decided.

City’s condemnation ordinance and procedures were not facially unconstitutional in violation of due process; ordinance provided for adequate notice prior to condemnation, as well as a public hearing, and included information on how to appeal a condemnation decision, and while ordinance did not include procedures by which an owner could rehabilitate a structure prior to a condemnation resolution, it did not expressly prohibit a precondemnation rehabilitation plan either.

Issue of whether city’s condemnation ordinance contained important and material terms that were undefined and vague and provided city too much discretion was raised for first time in landowner’s motion for summary judgment, and thus Court appropriately granted summary judgment against landowner on that claim; landowner did not include the claim in its original complaint or in its amended and reinstated petition for declaratory judgment, even within the context of its due-process argument.

City’s condemnation ordinance and resolution condemning landowner’s property as a nuisance was not an improper bill of attainder; condemnation ordinance did not legislatively punish a named individual or an easily ascertainable group, and resolution condemning the property was not a legislative act but an administrative one.

Even assuming city was required to file an answer within 30 days of notice of remand from federal court, circuit court appropriately exercised its discretion when declining to grant landowner’s motion to strike the answer in action challenging city’s decision to condemn landowner’s property as a nuisance, given that city filed an answer in federal court and then filed an amended answer, albeit outside the 30 day time period, to the specific claims raised in state court.




PUBLIC RECORDS - FLORIDA

Scott v. Lee County School Board

District Court of Appeal of Florida, Second District - January 22, 2021 - So.3d - 2021 WL 220811 - 46 Fla. L. Weekly D219

Records requester petitioned for writ of mandamus, alleging that county school board failed to provide documents responsive to records request.

The Circuit Court summarily denied the petition. Requester appealed.

The District Court of Appeal held that requester, whose mandamus petition was facially insufficient, could file a new petition with a copy of his records request attached.

Upon the appellate court’s determination that records requester’s mandamus petition, to compel county school board to produce records, was facially insufficient absent a copy of his records request, the trial court’s order summarily denying the petition would be affirmed without prejudice, thereby allowing the requester to file a new petition, with his records request attached.




EMINENT DOMAIN - MASSACHUSETTS

Abuzahra v. City of Cambridge

Supreme Judicial Court of Massachusetts - February 17, 2021 - N.E.3d - 486 Mass. 818 - 2021 WL 609038

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, Rubin, J., 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.




ANNEXATION - MISSISSIPPI

Pendorff Community Association, LLC v. City of Laurel

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

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

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

The Supreme Court held that:




EMINENT DOMAIN - SOUTH DAKOTA

Hamen v. Hamlin County

Supreme Court of South Dakota - February 10, 2021 - N.W.2d - 2021 WL 501207 - 2021 S.D. 7

Property owners brought action against county, sheriff, and other deputies, seeking compensation for inverse condemnation and asserting a separate claim for violations of rights under the Fourth and Fourteenth Amendments pursuant to § 1983 in connection with damages to mobile home during arrest of property owners’ son, an alleged fleeing felon.

Parties cross-moved for summary judgment. The Circuit Court denied property owners’ motion, granted county’s motion, and denied sheriff’s motion. County and sheriff appealed.

The Supreme Court held that:




EMINENT DOMAIN - TEXAS

DM Arbor Court, Limited v. City of Houston

United States Court of Appeals, Fifth Circuit - February 12, 2021 - F.3d - 2021 WL 523030

Operator of low-income housing complex brought action against city, challenging city’s refusal to grant permits to operator to repair units damaged in hurricane, and alleging claims of regulatory taking, and violation of the due process, equal protection and contracts clauses of the United States constitution.

The United States District Court for the Southern District of Texas dismissed operator’s suit for lack of subject matter jurisdiction, concluding it was not ripe because operator had not yet obtained a decision from city council, which was final arbiter of city permit requests. Operator appealed.

The Court of Appeals held that:

Claims by operator of low-income housing complex, including regulatory taking, due process, equal protection and contracts clause violations, arising out of city’s refusal to grant permits for operator to conduct repairs at property based on hurricane damage, were not ripe when considered by the district court; city council had final say about operator’s permit applications, and city council had not yet taken a final, definitive position on those applications at the time of hearing before district court that resulted in judgment dismissing claims without prejudice.

Claims by operator of low-income housing complex against city, including regulatory taking, and due process, equal protection and contracts clause violations, arising out of city’s denial of permits to operator to repair hurricane damage at property, became ripe after district court entered judgment dismissing such claims against city, and thus vacatur of district court’s judgment was warranted; while city council was final decisionmaker as to operator’s permit applications, and had not yet made a final decision at the time operator’s action was filed, city council made such a decision prior to consideration of operator’s appeal from district court’s judgment, and district court’s ripeness concern was prudential, rather than jurisdictional.




TAX - CALIFORNIA

Schmid v. City and County of San Francisco

Court of Appeal, First District, Division 4, California - February 1, 2021 - Cal.Rptr.3d - 2021 WL 321405 - 21 Cal. Daily Op. Serv. 1232 - 2021 Daily Journal D.A.R. 1164

Two taxpayers brought action against city and county and affiliated defendants, seeking to overturn an order authorizing removal of a bronze sculpture.

The Superior Court sustained a demurrer without leave to amend. Taxpayers appealed.

The Court of Appeal held that:




LIABILITY - FLORIDA

Elalouf v. School Board of Broward County

District Court of Appeal of Florida, Fourth District - January 6, 2021 - So.3d - 2021 WL 49915 - 46 Fla. L. Weekly D114

High school student athlete brought claim of negligence against school board for injury sustained while playing a soccer game.

The Circuit Court granted summary judgment for the school board. Student appealed.

The District Court of Appeal held that pre-game release signed by student released school board from liability for negligence.

School board was clearly and unambiguously released from liability for negligence claims by language in pre-game release signed by student athlete which released school board from liability for “any injury or claim resulting from athletic participation,” although release did not contain word “negligence”; language unequivocally demonstrated a clear and understandable intention for school board to be relieved from liability.




EMINENT DOMAIN - INDIANA

Haggard v. State

Court of Appeals of Indiana - January 21, 2021 - N.E.3d - 2021 WL 209208

As part of State’s improvement of interstate freeway, State filed complaint for appropriation of real estate.

The Circuit Court granted State’s motion for appropriation and appointment of appraisers. Named defendants filed objections and moved trial court to vacate order of appropriation. The trial court overruled the objections and motion to vacate order of appropriation. Defendants appealed.

The Court of Appeals held that defendants were not landowners with title to property sought to be condemned.

Named defendants in State’s complaint for appropriation of property as part of its improvement of interstate freeway were not landowners with title to property sought to be condemned, and therefore they were not entitled to pre-complaint offer to purchase their easement; named defendants were not listed on tax assessment rolls and were not persons in whose name title in property was shown in recorder’s records, their name appeared on deed as easement holders, an easement for ingress/egress and to erect /maintain billboard.




ZONING & PLANNING - MINNESOTA

State by Smart Growth Minneapolis v. City of Minneapolis

Supreme Court of Minnesota - February 10, 2021 - N.W.2d - 2021 WL 485400

Advocacy groups filed complaint alleging city’s scheduled approval of comprehensive plan violated Minnesota Environmental Rights Act (MERA), and seeking declaratory and injunctive relief.

The District Court granted city’s motion to dismiss the complaint. Advocacy groups appealed. The Court of Appeals affirmed. Advocacy groups appealed.

The Supreme Court held that on issue of first impression, advocacy groups stated city’s scheduled approval of comprehensive plan under Metropolitan Land Planning Act likely would cause materially adverse environmental effects in violation of MERA.

Advocacy groups stated city’s scheduled approval of comprehensive plan under Metropolitan Land Planning Act (MLPA) likely would cause materially adverse environmental effects in violation of Minnesota Environmental Rights Act (MERA), on allegations that presumed full build-out of plan likely would increase rate and volume of storm-water runoff, threaten sanitary sewer systems and water supply, reduce wildlife habitat, and diminish air quality; although plan was planning document for city that could be amended, it would control city’s land use because any zoning ordinances in conflict with plan would have to be brought into compliance with it.




IMMUNITY - NEBRASKA

Edwards v. Douglas County

Supreme Court of Nebraska - January 29, 2021 - N.W.2d - 308 Neb. 259 - 2021 WL 297637

Victim, who was held hostage and sexually assaulted by her former boyfriend, brought action against county under Political Subdivisions Tort Claims Act (PSTCA), alleging county negligently handled emergency telephone calls and, as a result, emergency personnel did not arrive in time to prevent or stop the assault.

The District Court entered summary judgment for county. Victim appealed.

The Supreme Court held that victim’s claim fell within PSTCA’s intentional torts exception and, thus, city did not waive its sovereign immunity.

Negligence claim brought against county by victim arose when she was held hostage and sexually assaulted by her former boyfriend and, thus, claim fell within intentional torts exception to Political Subdivisions Tort Claims Act (PSTCA), and county did not waive its sovereign immunity; although victim alleged county negligently mishandled emergency telephone calls and, as a result, emergency personnel did not arrive in time to prevent or stop the assault, all of her claimed damages stemmed from former boyfriend’s assault.




BANKRUPTCY - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States Court of Appeals, First Circuit - February 8, 2021 - F.3d - 2021 WL 438891

In Title III debt restructuring proceedings brought pursuant to the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), plan objections to the proposed adjustment plan of the Puerto Rico Sales Tax Financing Corporation (COFINA) were overruled, and plan was confirmed, by the United States District Court for the District of Puerto Rico,

Objectors appealed.

The Court of Appeals held that:

Equitable mootness doctrine applies in municipal bankruptcy proceedings to appeals from orders confirming Chapter 9 adjustment plans; if interests of finality and reliance are paramount to the application of equitable mootness for Chapter 11 plans, then these same interests apply with greater force to a Chapter 9 plan, which can implicate substantial reliance interests, and in which there is a particular need for finality.

In Title III debt restructuring proceedings brought pursuant to the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), appeals from unstayed order confirming the Puerto Rico Sales Tax Financing Corporation’s (COFINA’s) plan of adjustment were equitably moot, where appellants had not sought a stay at any time over the nearly two years that the plan was being implemented, and where transactions involving billions of dollars, and likely tens of thousands of individuals, had been completed in reliance on plan confirmation order; there was no relevant stand-alone component of plan that could be modified to satisfy the various plan objectors without upsetting reliance interests of innocent third parties.




PUBLIC EMPLOYMENT - RHODE ISLAND

Starnino v. Employees’ Retirement System of the City of Providence

Supreme Court of Rhode Island - February 5, 2021 - A.3d - 2021 WL 405870

City employee petitioned for a writ of certiorari to review city retirement board’s decision to deny his application for an accidental disability retirement from his position as a firefighter due to shoulder injury.

The Supreme Court held that physician’s independent medical evaluation that employee could return to full duty supported denial of accidental disability retirement.

Physician’s independent medical evaluation of city employee, which concluded that employee could return to full duty as a firefighter after he had sustained shoulder injuries on the job, was legally competent evidence that supported city retirement board’s decision to deny employee’s application for accidental disability retirement, notwithstanding functional capacity evaluation that concluded employee could not return to working full duty and opinion of other medical examiners that employee was unable to return to work as a firefighter; board was within its discretion in discounting functional evaluation, in view of length of time that had passed since it had been performed, and to give more credence to physician’s opinion as to subjective nature of employee’s complaints.




ZONING & PLANNING - SOUTH DAKOTA

Holborn v. Deuel County Board of Adjustment

Supreme Court of South Dakota - February 10, 2021 - N.W.2d - 2021 WL 501343 - 2021 S.D. 6

Residents of Deuel County and neighboring counties filed petition for writ of certiorari challenging special exception permits (SEPs) to develop two wind energy systems (WES) in Deuel County, including claim that several members of Deuel County Board of Adjustment had interests or biases that disqualified them from considering SEPs.

The Circuit Court determined that two Board members had disqualifying interests and invalidated their votes, and reversed decision of Board granting SEPs. Applicants appealed.

The Supreme Court held that:




STATES - COLORADO

Raven v. Polis

Supreme Court of Colorado - February 1, 2021 - P.3d - 2021 WL 320607 - 2021 CO 8

Transgender women who were confined in correctional facilities of Colorado Department of Corrections (CDOC) brought action against defendants including CDOC and state Governor, alleging discrimination and seeking declaratory, injunctive, and monetary relief.

After the District Court, City and County of Denver denied Governor’s motion to dismiss, Governor brought petition for exercise of original jurisdiction.

Following issuance of order to show cause, the Supreme Court held that:

Relief in the nature of an original proceeding was appropriate for Governor’s claim that trial court should have dismissed him from action because he was not a proper defendant, in discrimination action brought by transgender inmates against Governor and Colorado Department of Corrections (CDOC); direct appeal would be inadequate remedy because it would come only after Governor’s participation in discovery and trial.

Because the Governor is the state’s supreme executive, with ultimate authority over the executive agencies under his control, the Governor is an appropriate defendant in an action that seeks to enjoin or mandate enforcement of a statute, regulation, ordinance, or policy.




IMMUNITY - MASSACHUSETTS

Slavin v. American Medical Response of Massachusetts, Inc.

Appeals Court of Massachusetts, Bristol - January 11, 2021 - N.E.3d - 99 Mass.App.Ct. 55 - 2021 WL 80668

911 Caller, individually and as personal representative of the estate of her deceased mother, brought action against city for wrongful death and emotional distress, alleging that city employees negligently delayed in responding to 911 call reporting that caller and her mother had been stabbed by an intruder.

The Superior Court Department denied city’s motion to dismiss. City appealed.

The Appeals Court held that:

Absent negligent medical treatment, claims by 911 caller against city, alleging that city employees negligently delayed in responding to 911 call reporting that caller and her mother had been stabbed by an intruder, were barred by provision of the Massachusetts Tort Claims Act barring claims against public employers based on tortious conduct of third parties not originally caused by the public employer; even though a more prompt response by city personnel might have diminished the harmful consequences of the stabbings, the lack of a prompt response was not the original cause of the harm, as the harm was originally caused by the violent and tortious conduct of a third person, the perpetrator of the stabbings, and not by the public employer or anyone acting on its behalf.

Negligent medical treatment exception to Tort Claims Act provision barring claims against public employers based on tortious conduct of third parties not originally caused by the public employer did not apply to claim brought by 911 caller, alleging city employees negligently delayed in responding to 911 call reporting that caller and her mother had been stabbed; caller did not allege that once the public employees responded to the scene, medical treatment that was furnished was provided in a negligent manner, nor did she allege that they were negligent in not providing additional or different treatment, and “negligent medical treatment” could not be stretched to encompass nonmedical acts or omissions by public employees before arriving at location where they could provide treatment.




INDUSTRIAL REVENUE BONDS - NEW MEXICO

Midway Leasing, Inc. v. Wagner Equipment Co.

United States Court of Appeals, Tenth Circuit - January 8, 2021 - Fed.Appx. - 2021 WL 71254

“This case involves an effort to obtain tax relief through a county’s issuance of industrial revenue bonds. The taxpayer, Wagner Equipment Company, hired Midway Leasing, Inc. to lobby the county for legislative approval of the bonds. Midway Leasing prepared the bond application and met with county officials to support passage. The effort succeeded, and Wagner Equipment obtained the bonds, which resulted in considerable savings in taxes. In light of these savings, Midway Leasing sought payment for its lobbying work. But the parties disputed the amount, and Midway Leasing sued for breach of contract, quantum meruit, and unjust enrichment. For these claims, Midway Leasing alleged a contract for a contingency fee, to be computed as a percentage of Wagner Equipment’s tax savings.”

The Court of Appeals held that:




TRAFFIC IMPACT FEES - WASHINGTON

Douglass Properties II, LLC v. City of Olympia

Court of Appeals of Washington, Division 2 - February 2, 2021 - P.3d - 2021 WL 345458

Building permit applicant appealed city’s hearing examiner’s decision regarding transportation impact fees city imposed as a condition of issuance of building permit.

The Superior Court affirmed, and applicant appealed.

The Court of Appeals held that:




ZONING & PLANNING - CONNECTICUT

One Elmcroft Stamford, LLC v. Zoning Board of Appeals of City of Stamford

Supreme Court of Connecticut - January 25, 2021 - A.3d - 2021 WL 262666

Adjacent landowner sought review of approval by city zoning board of appeals of application of property owner to locate used car business on property.

The Superior Court affirmed and adjacent property owner appealed. The Appellate Court reversed and remanded. Property owner appealed.

The Supreme Court held that:




CONTRACTS - MARYLAND

K. Hovnanian Homes of Maryland, LLC v. Mayor of Havre de Grace

Court of Appeals of Maryland - January 29, 2021 - A.3d - 2021 WL 302874

Developer which had performed infrastructure improvements involving water, sewer lines, and roads to one of three adjacent parcels, and who had allegedly entered into agreement with city to recoup costs for doing so from owners of other two parcels, brought declaratory judgment action against city to compel execution and recordation of the agreement.

The Circuit Court granted summary judgment to city. Developer appealed. The Court of Special Appeals reversed and remanded. On remand, the Circuit Court granted summary judgment to developer. City appealed. The Court of Special Appeals reversed. Developer petitioned for writ of certiorari, and petition was granted.

The Court of Appeals held that:




PUBLIC EMPLOYMENT - NORTH DAKOTA

Potts v. City of Devils Lake

Supreme Court of North Dakota - January 12, 2021 - N.W.2d - 2021 WL 99712 - 2021 IER Cases 95422021 ND 2

Dismissed municipal police officer involved in fatal shooting brought wrongful termination action against municipality.

The District Court granted municipality’s motion for summary judgment, and officer appealed.

The Supreme Court held that at-will municipal police officer who fatally discharged his firearm during the course of his duties could be discharged by the municipality at any time and for any reason, notwithstanding that he had allegedly fired in self-defense; there was no “self defense of police officers” exception to at-will employment doctrine.




REFERENDA - OKLAHOMA

In re Petition to Recall Ward Three City Commissioner Ezzell

Supreme Court of Oklahoma - January 26, 2021 - P.3d - 2021 WL 252162 - 2021 OK 5

City commissioner brought action challenging sufficiency of recall petition.

Petition’s proponents intervened. The District Court denied protest, and commissioner appealed.

The Supreme Court held that recall petition was invalid on its face.

Petition to recall city commissioner that did not contain statutorily required warning of penal sanctions for placing duplicate, false, or fraudulent signatures or for signing of petition by person who was not legal voter was invalid on its face.




IMMUNITY - WASHINGTON

Mancini v. City of Tacoma

Supreme Court of Washington, EN BANC - January 28, 2021 - P.3d - 2021 WL 279715

Apartment resident, detained by police officers exercising search warrant, filed action against city, city police department and police chief, alleging, inter alia, negligence, assault and battery, false imprisonment, and invasion of privacy.

The Superior Court denied defendants’ motion for directed verdict, and entered judgment on jury verdict in favor of apartment resident on negligence claim. Defendants appealed. The Court of Appeals reversed. Resident appealed.

The Supreme Court held that:




IMMUNITY - NEBRASKA

Mercer v. North Central Service, Inc.

Supreme Court of Nebraska - January 22, 2021 - N.W.2d - 308 Neb. 224 - 2021 WL 219240

Landowners and their insurers, who were affected by a natural gas explosion and fire after a natural gas line was struck while contractor was drilling an underground path for fiber optic cable, brought action against the Metropolitan Utilities District (MUD), asserting claims for negligence.

The District Court denied MUD’s motion for summary judgment. MUD appealed.

The Supreme Court held that:

To extent that Metropolitan Utilities District (MUD) had any discretion in locating and marking relevant natural gas lines, so as to avoid natural gas pipe strikes when statewide one-call notification center performed horizontal directional drilling (HDD) to bore an underground path for fiber optic cable, that discretion was not protected by the discretionary function exception to the Political Subdivisions Tort Claims Act (PSTCA), as would provide MUD immunity from suit by landowners and their insurers who were affected by natural gas explosion when a buried gas line was struck during HDD process; buried utility lines were under MUD’s sole control, and because lines were not readily apparent, MUD had statutory duty to advise excavators of location of the lines with stakes, flags, paint, or other clearly identifiable markings.

Failure by Metropolitan Utilities District (MUD) to timely shut off natural gas lines and properly abandon out-of-service gas line outside of building prior to natural gas explosion was not protected by the discretionary function exception to the Political Subdivisions Tort Claims Act (PSTCA), in suit brought by landowners and insurers who were affected by the explosion, since MUD, because of its own gas emergency procedures, had no choice as to whether it needed to turn off the gas in a timely manner.

Actions by Metropolitan Utilities District (MUD) workers following natural gas explosion, in not properly telling supervisor that line that caused the explosion had not been properly abandoned, were not protected by the discretionary function exception to the Political Subdivisions Tort Claims Act (PSTCA), in suit brought by landowners and insurers who were affected by the explosion; MUD’s locating manual provided that a locator “shall” call into dispatch or fill out forms reporting the error, and a separate MUD procedure manual provided a guide in event that it needed to abandon a gas line.




EMINENT DOMAIN - PENNSYLVANIA

PBS Coals, Inc. v. Department of Transportation

Supreme Court of Pennsylvania - January 20, 2021 - A.3d - 2021 WL 190970

Coal companies brought action against Pennsylvania Department of Transportation (DOT), alleging that condemnation of property deprived companies of access to coal estate.

After a hearing, the Court of Common Pleas ruled that a de facto taking had not occurred and sustained Department’s preliminary objections to companies’ petition for appointment of a board of viewers. Companies appealed. The Commonwealth Court reversed and remanded. DOT petitioned for review.

The Supreme Court held that:




ZONING & PLANNING - PENNSYLVANIA

Lamar Advantage GP Company, LLC v. City of Pittsburgh Zoning Board of Adjustment

Supreme Court of Pennsylvania - January 20, 2021 - A.3d - 2021 WL 189276

Billboard owner, which had ratcheted a static vinyl sign over electronic advertising on billboard, appealed decision of city’s zoning board of adjustment which upheld city’s citation for adding to or enlarging a nonconforming sign.

The Court of Common Pleas reversed. City appealed, and the Commonwealth Court affirmed. City petitioned for review, which was granted.

The Supreme Court, held that Commonwealth Court’s decision was not inconsistent with Lamar Advertising Co. v. Zoning Hearing Bd. of Monroeville, 939 A.2d 994.

Commonwealth Court’s decision that billboard owner’s decision to drape vinyl static sign over existing electronic sign and sign structure did not violate city code provision barring a nonconforming sign from enlarging, adding to, or replacing another nonconforming sign was not inconsistent with Lamar Advertising Co. v. Zoning Hearing Bd. of Monroeville, 939 A.2d 994, which held that structural alterations required to replace 17 static vinyl signs with electronic signs “altered” those signs within the meaning of a municipal ordinance; conclusion in that case was premised upon language of that city’s zoning ordinance, the failure to establish the billboards as legal nonconforming uses, and the significant structural alterations that the change would entail, none of which were present in the case at hand.




ANTITRUST AND TRADE REGULATION - VIRGINIA

Western Star Hospital Authority Inc. v. City of Richmond, Virginia

United States Court of Appeals, Fourth Circuit - January 19, 2021 - F.3d - 2021 WL 162023

Bidder selected to provide nonemergency medical transportation services to Veteran’s Administration Medical Center, conditioned on obtaining permit from city to operate emergency medical services (EMS) vehicles, brought action against city and city ambulance authority for violations of the Sherman Antitrust Act and the Supremacy Clause of the United States Constitution.

The United States District Court dismissed the case with prejudice, and bidder appealed.

The Court of Appeals held that:

City and city ambulance authority enjoyed Parker doctrine immunity from federal antitrust liability for anticompetitive conduct, and thus, federal law did not preempt their actions in denying applicant a permit to operate emergency medical services (EMS) vehicles; the Virginia legislature expressly conferred broad authority on local governing bodies to engage in anticompetitive conduct in the EMS vehicle services market.

City and city ambulance authority asserting state action immunity from federal antitrust claims were not subject to the active state supervision requirement for nonsovereign actors; municipalities, and substate governmental entities like the ambulance authority, had less of an incentive to pursue their own self-interest under the guise of implementing state policies, and, unlike private parties, were exposed to public scrutiny and checked by the electoral process.

Supremacy Clause was not implicated by city’s conduct in denying applicant a permit to operate emergency medical services (EMS) vehicles; applicant alleged that city’s conduct conflicted with the Competition in Contracting Act (CICA), because without the permit, applicant’s bid to provide nonemergency medical transportation services would not be accepted by the Veteran’s Administration (VA) Medical Center, but the VA repeatedly made clear, both when it initially requested quotes and when it conditionally selected applicant’s bid that there would be no contract unless it first obtained a permit from the City.




LIABILITY - WASHINGTON

State v. Birge

Court of Appeals of Washington, Division 2 - January 5, 2021 - P.3d - 2021 WL 37509

Defendant police officers were charged with third-degree assault of child under theory of accomplice liability and official misconduct.

The Superior Court granted defendants’ motion to dismiss, and State appealed.

The Court of Appeals held that:




TRANSPORTATION - CALIFORNIA

Menges v. Department of Transportation

Court of Appeal, Fourth District, Division 3, California - December 24, 2020 - Cal.Rptr.3d - 59 Cal.App.5th 13 - 2020 WL 7653957 - 20 Cal. Daily Op. Serv. 13,080

Passenger of car involved in motor vehicle accident sued Department of Transportation, alleging negligent construction of an interstate off-ramp, stemming from incident in which tractor-trailer truck exiting from off-ramp broadsided vehicle in which passenger was riding.

The Superior Court granted Department summary judgment on the basis of design immunity. Passenger appealed. Subsequently, the Superior Court awarded Department costs. Passenger appealed, and appeals were consolidated.

The Court of Appeal held that:




MUNICIPAL CORPORATIONS - CALIFORNIA

Department of Finance v. Commission on State Mandates

Court of Appeal, Second District, Division 1, California - January 4, 2021 - Cal.Rptr.3d - 2021 WL 22066 - 21 Cal. Daily Op. Serv. 234

Department of Finance, State Water Resources Control Board, and regional water quality control board filed petition for writ of administrative mandamus seeking to overturn decision of Commission on State Mandates that regional board’s condition on permit authorizing local governments to operate storm drain systems, requiring local governments to install and maintain trash receptacles at transit stops, constituted a reimbursable state mandate, and local governments filed cross-petition, challenging the Commission’s determination that requirement that they periodically inspect commercial facilities, industrial facilities, and construction sites to ensure compliance with various environmental regulatory requirements, was not a reimbursable state mandate.

The Superior Court granted petition, and denied cross-petition as moot. Local governments appealed. The Second District Court of Appeal affirmed. Local governments petitioned for review. The Supreme Court reversed. The Superior Court again granted petition. Local governments appealed.

The Court of Appeal held that:

Supreme Court’s statement that state agencies and local governments did not dispute that each challenged condition on permit authorizing local governments to operate storm drain systems was a new program or higher level of service, did not constitute a rule of law necessary to the decision of the case, and thus, was not law of the case, for purposes of action brought by state agencies seeking to overturn decision of Commission on State Mandates that regional board’s condition on permit authorizing local governments to operate storm drain systems, requiring local governments to install and maintain trash receptacles at transit stops, constituted a reimbursable state mandate.

“Programs,” for purposes of state constitutional provision requiring the state to pay for new governmental programs, or for higher levels of service under existing programs, that it imposes upon local government agencies, are programs that carry out the governmental function of providing services to the public, or laws which, to implement a state policy, impose unique requirements on local governments and do not apply generally to all residents and entities in the state; the two parts of the definition are alternatives, and either will trigger the subvention obligation unless an exception applies.

Conditions on permit authorizing local governments to operate storm drain systems, requiring local governments to install and maintain trash receptacles at transit stops and to periodically inspect various facilities to ensure compliance with environmental regulatory requirements, constituted new programs or higher levels of service, for purposes of state constitutional provision requiring the state to pay for such programs that it imposes upon local governments; both requirements increased the level of service provided by the existing stormwater drainage system, but also imposed new requirements on local governments, and alternatively, both were requirements unique to local governments to implement state policy.

Based upon the local governments’ constitutional police power and their ability to impose a regulatory fee that does not exceed the reasonable cost of the inspections, is not levied for unrelated revenue purposes, and is fairly allocated among fee payers, local governments had authority to levy a fee on businesses to cover their costs of inspecting various facilities to ensure compliance with environmental regulatory requirements, as required by permit authorizing local governments to operate storm drain systems; permit’s inspection requirements and statute requiring regional water quality control boards to use a portion of fees they received from certain waste dischargers for stormwater inspection and regulatory compliance issues could be applied without duplication or conflict.

A regulatory fee local governments could impose on businesses to cover their costs of inspecting various facilities to ensure compliance with environmental regulatory requirements, as required by permit authorizing local governments to operate storm drain systems, would not be preempted by statute obligating waste dischargers to pay annual fees to the state, and requiring some of those fees be used for stormwater inspection and regulatory compliance issues; there was no evidence that a local government’s inspection fee would necessarily duplicate the annual fees imposed under statute, nor was there any indication that the Legislation intended to occupy the field of stormwater program inspections or inspection fees.

Local governments did not have authority to charge a fee to transit agencies to install and maintain trash receptacles at transit stops, under statute allowing one public agency to impose a fee for a public utility service provided to another public agency, as would provide an exception to subvention under state constitutional provision requiring the state to pay for new governmental programs, or for higher levels of service under existing programs, that it imposes upon local government agencies; transit authority was not a public utility customer that solicited installation and ongoing maintenance of trash receptacles.




EMINENT DOMAIN - FLORIDA

Galleon Bay Corporation v. Board of County Commissioners of Monroe County

District Court of Appeal of Florida, Third District - December 2, 2020 - So.3d - 2020 WL 7050188

Corporate landowner initiated inverse condemnation proceedings against State and county.

Following jury trial, the Circuit Court entered judgment awarding landowner $480,000 in damages. Landowner appealed, and State and county cross-appealed. The Third District Court of Appeal affirmed. After unsuccessfully motioning the Third District Court of Appeal for rehearing, rehearing en banc, and for a written opinion, landowner filed motion seeking to void judgment on ground that State and county did not timely deposit judgment amount. The Circuit Court denied motion. Landowner appealed.

The District Court of Appeal held that statute requiring petitioner in eminent domain proceedings to deposit judgment amount within 20 days after rendition of judgment did not apply to void judgment in inverse condemnation proceedings.

Statute requiring petitioner in eminent domain proceedings to deposit judgment amount within 20 days after rendition of judgment did not apply to void judgment in inverse condemnation proceedings in which jury awarded corporate landowner $480,000 in damages that the State and county did not deposit within 20 days; statutory scheme demonstrated that term “petitioner” referred to a condemning authority initiating an eminent domain lawsuit by filing a petition, and statute made sense only in eminent domain context, in which it allowed a condemning authority to walk away from an unaffordable valuation.




EASEMENTS - NEW HAMPSHIRE

Shearer v. Raymond

Supreme Court of New Hampshire - January 13, 2021 - A.3d - 2021 WL 117758

Landowner brought action against neighbors seeking to establish easement over neighbors’ property to access his landlocked property that abutted a discontinued public highway.

After a bench trial, the Superior Court found that landowner had an easement. Landowner appealed and neighbors cross-appealed.

The Supreme Court held that:




PUBLIC UTILITIES - VERMONT

In re Acorn Energy Solar 2, LLC

Supreme Court of Vermont - January 15, 2021 - A.3d - 2021 WL 139140 - 2021 VT 3

Applicant sought certificate of public good (CPG) to build and operate a ground-mounted 150-kW solar net-metering system on leased pasture land.

The Public Utility Commission (PUC) denied motion to dismiss filed by intervening adjoining landowners, granted application, and subsequently denied reconsideration. Adjoining landowners appealed.

Holdings: The Supreme Court held that:




ENVIRONMENTAL LAW - ALABAMA

Breland v. City of Fairhope

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

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

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

The Supreme Court held that:




COMMUNITY REDEVELOPMENT AGENCIES - CALIFORNIA

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

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

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

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

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

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




EMINENT DOMAIN - FEDERAL

Ideker Farms, Inc. v. United States

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

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

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

The Court of Federal Claims held that:

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

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

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

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

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

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

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

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

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

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

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




EMINENT DOMAIN - GEORGIA

HBC2018 LLC v. Paulding County School District

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

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

Parties filed cross motions for summary judgment.

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

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

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




EMINENT DOMAIN - HAWAII

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

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

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

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

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




BALLOT INITIATIVES - MICHIGAN

League of Women Voters of Michigan v. Secretary of State

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

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

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

The Supreme Court held that:

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

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

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

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

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

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

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

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




ZONING & PLANNING - MINNESOTA

State v. Sanschagrin

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

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

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

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

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




EMINENT DOMAIN - MISSISSIPPI

Mississippi Sand Solutions, LLC v. Otis

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

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

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

The Supreme Court held that:

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

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

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




POLITICAL SUBDIVISIONS - KENTUCKY

Northern Kentucky Area Development District v. Wilson

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

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

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

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

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




MUNICIPAL CORPORATIONS - NORTH DAKOTA

DiCesare v. Charlotte-Mecklenburg Hospital Autuhority

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

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

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

The Supreme Court held that:

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

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




MUNICIPAL ORDINANCE - OHIO

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

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

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

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

The Supreme Court held that:

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

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




OPEN RECORDS - PENNSYLVANIA

Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections

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

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

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

The Supreme Court held that:

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

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




MUNICIPAL ORDINANCE - WASHINGTON

City of Seattle v. Rodriguez

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

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

Defendant appealed, challenging ordinance as unconstitutionally vague and overbroad.

The Court of Appeals held that:

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

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

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

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

 

 




OPEN MEETINGS - WASHINGTON

Tateuchi v. City of Bellevue

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

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

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

The Court of Appeals held that:




MUNICIPAL ORDINANCE - CALIFORNIA

Hotop v. City of San Jose

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

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

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

The Court of Appeals held that:




IMMUNITY - KENTUCKY

A.H. v. Louisville Metro Government

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

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

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

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

The Supreme Court held that:






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