Norfolk sought review of an order of the Public Utility Commission (PUC) that allocated to railroad 15% of the cost for the removal of a rail-crossing bridge. Norfolk contended that any allocation to it would be unjust and unreasonable, since the company owned no property or facilities at the crossing site.  Norfolk also cited City of Chester v. PUC, 798 A.2d 288, for the proposition that the PUC lacked authority to allocate costs to a transportation utility which had no ownership interest associated with a rail-highway crossing.

The Supreme Court of Pennsylvania held that:

• Statutory provision that governed compensation for damages occasioned by the construction, relocation, or abolition of a railroad crossing invested the Public Utility Commission (PUC) with discretion to determine the proper proportions of costs to be allocated to concerned parties or the Commonwealth, but not to select parties who would be subject to the allocation on a discretionary basis, but
• In a matter of first impression, non-owner railroad was a concerned party for purposes of the PUC’s cost-allocation jurisdiction and authority, at least to the extent that it conducted regular operations at the crossing and could enforce an easement-based right of way, abrogating City of Chester v. Public Utility Com’n, 773 A.2d 1280.

Developer purchased property to develop a residential subdivision.  Developer then sold the lots to a home builder.

Developer sued City based on delays and changes to the development plan that increased its costs and reduced the sale price of the lots.

Developer argued it was entitled to compensation as a matter of law because the City failed to prove certain imposed exactions were roughly proportional to the projected impact of the development.

The appeals court stated that, “To resolve these issues, we must first determine whether each requirement was an exaction and, if so, whether the City established (1) an essential nexus to the substantial advancement of a legitimate government interest and (2) the rough proportionality to the projected impact of the development. Stafford Estates, 135 S.W.3d at 634.”  The court then engaged in a remarkably thorough analysis of each of the disputed exactions.

Based on this analysis, the court reversed certain of the lower court’s rulings on the exactions and sustained others.  The net result was an increase in the amount awarded to Developer, from $40,00 to $96,000, plus attorneys’ fees, although the Developer had sought $800,000.

Developer and developer’s agent brought action against town and town’s planning commission following years of obstruction and delays in developer’s application for preliminary plat approval.

The Supreme Court of Alabama held that:

• Issue of whether town and town’s planning commission acted negligently by failing to properly consider or grant the developer’s application for preliminary plat approval was for jury;
• Issue was for jury in developer’s action against town and town planning commission as to whether commission tortiously acquired jurisdiction over developer’s property;
• Municipal immunity did not apply to town that sought extraterritorial jurisdiction over the private property of developer so that the municipality could prevent development of that property;
• Personal-injury cap did not apply to action by developer against town for damages associated with town’s refusal to approve subdivision plat;
• Developer’s agent’s untimely complaint against town did not relate back to developer’s complaint so as to remedy agent’s violation of the municipal notice-of-claim statute; and
• Evidence was sufficient to support jury’s award of lost profits.

Property owner brought action against city seeking damages based on claims of negligent maintenance, continuing trespass, continuing nuisance, and inverse condemnation, all related to that part of the city’s storm-water-drainage system that abutted her property.

The Supreme Court of Alabama held that:

• Genuine issue of material fact existed as to whether deteriorated condition of drainage ditch caused several large sinkholes on property owner’s land, precluding summary judgment;
• Genuine issue of material fact existed as to whether property owner suffered damage from continuous migration of water and soil into the drainage ditch during six months preceding the filing of notice of claim, precluding summary judgment under municipal nonclaim statute; and
• Genuine issue of material fact existed as to whether problems with ditch had been brought to city’s attention, precluding summary judgment.

Parent brought Title IX action against city board of education, alleging that her daughter was sexually harassed by grade school custodian. The United States District Court for the Middle District of Alabama, granted summary judgment in favor of board.  Plaintiff appealed.

The Court of Appeals held that:

• School’s principal and superintendent did not act with “deliberate indifference” to actual notice of possibility that custodian might sexually harass student;
• Students’ and teachers’ complaints that custodian was continuously “undressing them with his eyes” did not give principal “actual notice” of possibility that custodian might sexually harass student; and
• Board of education did not act with “deliberate indifference” to actual notice of custodian’s alleged inappropriate touching of student’s buttocks and his violation of command to avoid contact with student.

A Title IX sexual harassment plaintiff must identify a school district official with the authority to take corrective measures in response to “actual notice” of sexual harassment.  The actual notice must be sufficient to alert that official to the possibility of the plaintiff’s sexual harassment, and that official must respond with deliberate indifference in order for Title IX liability to arise.

Creditor Westamerica Bank (the “Bank”) appealed the Order of the United States Bankruptcy overruling the Bank’s objection regarding Debtor Mendocino Coastal Recreation and Park District’s (the “District”) Chapter 9 eligibility.  At issue was whether the Bankruptcy Court erred in concluding that the District complied with 11 U.S.C. § 1 09(c)(5)(B)’s requirements for eligibility as a municipal debtor under Chapter 9.

The District Court affirmed the Bankruptcy Court’s order determining Chapter 9 eligibility.

In 2008, the District entered into a lease related to a parkland property with a third party that subsequently assigned all of its rights to Bank, entitling the Bank to the lease payments.

In 2011, the District’s Counsel sent a “settlement outline and proposal” (the “Workout Proposal”) to the Bank’s Counsel, describing the District’s insolvent financial situation and notifying the Bank that if it could not work out a satisfactory alternative it would file a Chapter 9 bankruptcy petition. The Workout Proposal concluded by proposing three resolutions: (1) transferring the leased property to the Bank in full satisfaction of the lease obligation, (2) paying the Bank $1.1 million in full satisfaction of the lease obligation, or (3) entering into a forbearance agreement.  The Bank declined to accept, or even discuss, the Workout Proposal.

The District subsequently filed its Chapter 9 voluntary petition (the “Petition”).  The Bank objected to the Petition on the ground that the District failed to meet the Chapter 9 eligibility requirements in Section 109(c)(5)(B) of the Bankruptcy Code, 11 U.S.C. § 109(c)(5)(B). The Bankruptcy Court overruled the Bank’s objection, holding that the Workout Proposal satisfied Section 109(c)(5)(B).

Section 109(c) of the Bankruptcy Code provides that “[a] n entity may be a debtor under Chapter 9 of this title if and only if such entity—” (1) is a municipality; (2) is specifically authorized to be a debtor; (3) is insolvent; (4) desires to effect a plan to adjust such debts; and

(5) (a) has obtained the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter;

(b) has negotiated in good faith with creditors and has failed to obtain the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter;

(c) is unable to negotiate with creditors because such negotiation is impracticable; or

(d) reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under section 547 of this title.

The Bank and the District disagreed about whether the District “negotiated in good faith.”  The question on appeal was whether Section 109(c)(5)(B) requires more than what the District did.  The District Court concluded that Section 109(c)(5)(B) requires municipalities not just to negotiate generally in good faith with their creditors, but also to negotiate in good faith with creditors over a proposed plan, at least in concept, for bankruptcy under Chapter 9.

“From this body of law, the Court draws two conclusions. First, courts may consider, based on the unique circumstances of each case and applying their best judgment, whether a debtor has satisfied an obligation to have “negotiated in good faith.” Second, while the Bankruptcy Code places the overwhelming weight of its burdens on petitioners, the provisions that call for negotiation contemplate that at least some very minimal burden of reciprocity be placed on parties with whom a debtor must negotiate.

In this case, the negotiation contemplated in Section 109(c)(5)(B) never happened, and the fault for that lay primarily with the Bank. Had the Bank responded with even the slightest indication of a willingness to negotiate, or even merely requested more time to consider the District’s proposal, the door might well be open for it to claim that the District did not negotiate in good faith

This case did not present the issue of what must occur in a negotiation that satisfies 109(c)(5)(B). It presented the issue of what information, if missing from the debtor’s first attempt to negotiate, bars a municipality from filing from Chapter 9 even if a creditor rejects the overture and declines to negotiate. In answering that question, one bright-line rule suggests itself. The possibility of imminent bankruptcy proceeding must be disclosed in the first effort to communicate, in order to ensure that, as the Bankruptcy Court put it in the Order Below, the municipality does not “blind-side a creditor by failing to mention that a Chapter 9 filing is contemplated.”

Beyond that, the Court declined to prescribe any rigid per se rule for what qualifies as a good-faith effort to begin negotiations. That determination will depend on several factors, of which the Court here considered only three.

First, the greater the disclosure about the proposed bankruptcy plan, the stronger the debtor’s claim to have attempted to negotiate in good faith. A creditor might be justified in rejecting the overture of a debtor proposing a frivolous or unclearly described adjustment plan, but a creditor is less justified in ignoring a substantive proposal.

Second, the municipality’s need to immediately disclose classes of creditors and their treatment in the first communication will depend upon how material that information would be to the creditor’s decision about whether to negotiate.

Third, the creditor’s response, and the amount of time the creditor has had to respond, may also be factors. If a creditor has had a relatively short time to respond to the municipality’s offer to negotiate, a lack of detail in the opening communication might weigh against a municipality rushing to file. On the other hand, where a creditor has been apprised of the possibility of a debt adjustment and declined to respond after a reasonable period of time, or where the creditor has explicitly responded with a refusal to negotiate, its position as an objector is significantly weakened.

California Clean Energy Committee (CCEC) appealed from a trial court’s judgment in favor of respondent City of San Jose (City). CCEC filed a petition for writ of mandate challenging City’s certification and approval of an environmental impact report (EIR) analyzing the potential environmental effects of a proposed update to City’s general plan, titled “Envision San Jose 2040 General Plan” prepared pursuant to the California Environmental Quality Act (CEQA).  The trial court granted summary judgment in City’s favor, after finding that CCEC failed to exhaust its administrative remedies, as no administrative appeal was filed from City’s planning commission’s certification of the final EIR.

The Court of Appeal concluded that the EIR was not properly certified by the planning commission, as the planning commission could not be delegated the duty to certify a final EIR given that it is not a decisionmaking body with respect to the Envision San Jose project.  As the EIR was not lawfully certified by the planning commission, no administrative appeal need be taken to exhaust administrative remedies.

Plaintiff  brought an action against the Town of Hebron in recompense for injuries allegedly sustained as a result of Hebron’s closure of a public road that provided the only access to real property owned by Plaintiff.

The court initially concluded that the Plaintiff’s takings claims (counts one and three) under the Fifth Amendment were not ripe for adjudication in this pursuant to the U.S. Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The parties agreed that Williamson County precluded the court from considering count three, alleging a violation of the just compensation requirement of the Fifth Amendment.

Plaintiff argued, though, that it had brought two distinct takings claims under the Fifth Amendment, of which count one must remain within this court’s jurisdiction. Specifically, Plaintiff stated that count three sought just compensation for the temporary taking of plaintiff’s property (a so-called “uncompensated taking” claim), and is thus not ripe in federal court, but that count one asserted that the Town’s ultra vires temporary taking of plaintiff’s property for an improper purpose violated the Fifth Amendment’s public use dictate (a so-called “bad faith taking” claim),” which is not proscribed by Williamson County.

Thus, a plaintiff alleging a bad faith exercise of a municipality’s eminent domain power pursuant to the public use requirement of the Fifth Amendment need not exhaust Williamson County’s ripeness requirements.  The District Court agreed, retaining jurisdiction.

Telecommunications service provider brought action against city, challenging the city’s denial of its cell tower application as in violation of the Telecommunications Act, and seeking an injunction compelling the city to grant it the requested permit. The United States District Court for the Northern District of Georgia granted summary judgment in favor of provider and issued an injunction requiring the city to issue the permit. City appealed.

The Court of Appeals held that city’s denial of telecommunications service provider’s request for a permit to build a cell tower satisfied the requirement of the Telecommunications Act that a state or local government’s denial of a request for a permit to erect a cell tower be “in writing.”  City provided provider with a written letter clearly stating the city council had denied the request, that same letter informed the provider that the minutes from the hearing in which the city council denied the request could be obtained from the city clerk, and the minutes recounted all of the reasons for the action on the provider’s application along with the relevant discussion.  Moreover, the provider received, or at least could have received, an even more detailed written account of the city council’s decision from the transcript of the hearing.

A middle-school teacher brought action against school board and principal under § 1983 for violation of his right to free speech under the First Amendment after he was suspended without pay for five days for leading a classroom discussion on the word “nigger.” Defendants moved to dismiss.

The District Court held that:

• Teacher stated a First Amendment claim against school board;
• Teacher’s right to lead the discussion was not clearly established; and
• Teacher’s free speech claim precluded a substantive due process claim.

Under the First Amendment, the government is entitled to restrict employee speech that addresses a matter of public concern if it can prove that the interest of the employee as a citizen in commenting on the matter is outweighed by the interest of the government employer in promoting effective and efficient public service.

Under the First Amendment, in evaluating the balance of interests between an employee’s speech as a citizen and of the government employer in promoting effective and efficient public service, courts examine any relevant facts, like whether the speech disrupted relationships with co-workers; whether the speech got in the way of the employee-speaker’s performance of job duties; and the time, place, and manner of the speech.

Allegations by middle-school teacher that he was suspended without pay for five days for leading a classroom discussion of the word “nigger,” stated a claim under § 1983 against school board for violating his right to free speech under the First Amendment.  There was no indication that board had a set policy prohibiting such a discussion, or that the discussion was “abusive,” or a disruption to “orderly” classroom education such that it would have violated existing policy.

Landowner and Village entered into an annexation agreement and permanent utility easement providing for the annexation of a 145–acre tract of land owned by Landowner in exchange for the Village constructing sewer lines and a lift station on a 9–acre tract of land owned by Landowner. The annexation agreement and utility easement also provided for a $300–per–day fee if the construction was not completed within a certain time frame.

Landowner sued for breach of the agreements.  The Village argued that the contract was void because it had not made a prior appropriation of funds for this project, as required under section 8–1–7 of the Municipal Code.

Although the record did indicate that the agreements were approved by the corporate authorities and were properly recorded, the court concluded that any contract made in violation of section 8–1–7 of the Municipal Code is null and void.  The requirements of section 8–1–7 are mandatory. Therefore, the annexation agreement and the permanent utility easement were unenforceable against the Village.

Court declines to dismiss suit brought by trustee against guarantor in bond default, finding diversity of citizenship and no cause to stay and dismiss under the Colorado River abstention doctrine.

Wells Fargo alleged that it was the successor trustee (the “Trustee”) to the Amalgamated Bank of Chicago (the “Prior Trustee”) under the Trust Indenture between the Illinois Finance Authority and the Prior Trustee dated as of February 1, 2007 (the “Trust Indenture”).

Wells Fargo alleged that the Illinois Finance Authority raised $20 million through issuing and selling a series of revenue bonds.  The Illinois Finance Authority issued the bonds under the Trust Indenture and loaned the proceeds to LHC, LLC (“LHC”), an Illinois non-profit limited liability company, for the construction and operation of a hockey arena located in West Dundee, Illinois.

Pursuant to the February 1, 2007 Loan Agreement (“Loan Agreement”) and Guaranty Agreement (“Guaranty Agreement”), LHC was the borrower and Defendant Leafs Hockey was the guarantor.  Wells Fargo contended that LHC had failed to make the required payments, and thus is in default. Also, Wells Fargo alleged that Leafs Hockey, as guarantor, had failed to pay its obligations under the February 1, 2007 Guaranty Agreement. Accordingly, Wells Fargo brought breach of contract and contractual indemnity claim against Leafs Hockey.

Leafs Hockey moved to dismiss the lawsuit pursuant to Rule 12(b)(1) arguing that diversity of citizenship did not exist, and thus, the Court lacks subject matter jurisdiction. In particular, Leafs Hockey, a citizen of Illinois for diversity jurisdiction purposes, argued that Wells Fargo was only a nominal party and the true party-in-interest is either the Illinois Finance Authority, a citizen of Illinois, or the unidentified bond holders, who may or may not be citizens of Illinois.  The court concluded that Leafs Hockey’s argument was unavailing because, as Successor Trustee, Wells Fargo, a citizen of South Dakota, can enforce the Loan Agreement under the parties’ February 1, 2007 agreements.

The court also held that Wells Fargo’s state court foreclosure action against LHC and the present breach of contract action were not parallel under the circumstances. Because the federal and state court actions were not parallel, the Colorado River abstention doctrine does not apply.

Bicyclist filed complaint against city alleging negligence, stemming from injury-causing incident in which bicyclist struck pothole while riding in alleyway.

Bicyclist contended the circuit court erred in dismissing his third amended complaint where section 3–102(a) of the Tort Immunity Act did not immunize defendant from liability for his injury because he was an intended user of the alleyway.

The Appellate Court held that:

• City did not reasonably exercise its police power in arbitrarily eliminating bicyclist’s cause of action;
• Subsequent amendment to municipal code did not demonstrate bicyclists were intended users at time of incident;
• Bicyclist was permitted user, rather than intended user; and
• Bicycle was not vehicle for purposes of determining city’s liability.

In conclusion, because plaintiff was not an intended user of the alley in which he sustained injuries, defendant is immunized from liability pursuant to section 3–102(a) of the Tort Immunity Act.

Since 2000, Indiana–American Water Company (IAWC) has owned and operated the water utility that provides service in and around the Town of Mooresville. On July 23, 2012, Mooresville provided notice to IAWC and the public that it would hold a public hearing to receive public comment on a proposed ordinance “declaring that the public convenience and necessity require the establishment of a municipally owned water utility and for the construction or acquisition of water utility assets and facilities.”

On December 24, 2012, Mooresville adopted a second ordinance that authorized the acquisition of the IAWC operation by eminent domain, if necessary. This occurred after Mooresville’s offer to buy IAWC’s interest was rejected by IAWC. On December 27, 2012, Mooresville initiated an eminent domain lawsuit in state court.

IAWC filed this action seeking declaratory relief and damages against Mooresville, alleging that Mooresville violated due process and Indiana Access to Public Records Act in their quest to create a new municipal utility.

In this action the District Court dismissed IAWC’s federal due process and Fourth Amendment claims.  Having disposed of IAWC’s federal claims, the District Court declined to retain supplemental jurisdiction over its claims under state law.  “Here, it is clear that supplemental jurisdiction should be relinquished. As discussed earlier, this case includes substantial and unclear questions of state law. Under such circumstances, remand to the original state court to resolve the remaining state law claims is appropriate.”

Pedestrian filed suit against transit authority, alleging that transit authority was negligent in the hiring, training, supervision, and retention of bus driver who collided with pedestrian in crosswalk while operating transit authority bus.

The Court of Appeals held that:

• Transit authority would not be afforded sovereign immunity, and
• Transit authority was not entitled to governmental immunity.

Transit authority was more corporate than governmental, and thus would not be afforded sovereign immunity.  Statute addressing transit authority’s creation provided that transit authority was “a public body corporate,” with power “to sue and be sued,” and “to have and exercise, generally, all of the powers of private corporations.”

Transit authority did not carry out function integral to state government, but rather engaged in quintessentially local proprietary venture of providing transportation services, and thus was not entitled to government immunity for claims asserted against it.  Transit authority did not provide transportation infrastructure, facilitate state-wide transit, legislate, administrate, or otherwise predominately serve state-level concerns.

This action, like many similar actions that have been filed throughout the country, was triggered by the collapse of the auction rate securities (“ARS”) market in February 2008. In this case, the plaintiff, Tutor Perini Corp. (“Tutor Perini”) brought claims against its broker and investment advisor, Banc of America Securities LLC, now known as Merrill Lynch, Pierce, Fenner & Smith, Incorporated (“BAS”), and BAS’s affiliate, Bank of America, N.A. (“BANA”).

Tutor Perini alleged that during the time period from September 2007 through February 2008, BAS, with the knowledge and acquiescence of BANA, invested hundreds of millions of dollars of Tutor Perini’s money in toxic ARS, including ARS that BAS had been holding in its own inventory, without disclosing the increasingly severe risk of illiquidity associated with such investments or the fact that BAS was engaged in a strategy to reduce its own inventory of ARS by foisting them onto its clients.

Tutor Perini claimed that the very risks which the defendants concealed from it materialized in February 2008, when the ARS market collapsed and ARS investors such as the plaintiff were unable to liquidate their holdings. Tutor Perini contended that as a result of the defendants’ conduct, it continues to hold nearly $100 million worth of ARS, which remain frozen in its account at BAS and will not mature for decades.

Tutor Perini asserted that the defendants committed securities fraud, in violation of section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b–5 promulgated thereunder, by making material misrepresentations and omissions regarding the risks of investing in ARS, and by selling it securities that were unsuitable in light of Tutor Perini’s investment objectives (Count I). In addition, Tutor Perini asserted nine separate state law claims against the defendants, which include claims for intentional misrepresentation (Count II), fraudulent concealment (Count III), negligent misrepresentation (Count IV), violation of Mass. Gen. Laws ch. 93A (Count V), civil conspiracy (Counts VI–VII), violation of Mass. Gen. Laws ch. 110A, § 410(a)(2) (Count VIII), breach of contract (Count IX), and conversion (Count X).

Defendants contended that Tutor Perini’s Exchange Act claims must be dismissed because the plaintiff has failed to comply with the heightened pleading standards of Fed.R.Civ.P. 9(b) and the Private Securities Litigation Reform Act, 15 U.S.C. §§ 78u–4(b), and has otherwise failed to allege facts sufficient to plead the elements of its claims. Similarly, they contended that each of Tutor Perini’s state law claims must be dismissed because the allegations supporting them are inadequate to comply with the pleading requirements of either Fed.R.Civ.P. 9(b) or Fed.R.Civ.P. 8, and because Counts V and IX fail as a matter of law.

The court found that Tutor Perini had failed to state claims for civil conspiracy, breach of contract and conversion, but that its remaining claims were sufficient to comply with the applicable pleading standards and to state a claim for relief.  Specifically, the court recommended that Counts VI, VII, IX and X be dismissed, but that the motion otherwise be denied.

Plaintiffs brought an action in Superior Court, seeking reversal of a decision of the Zoning Board of Appeals of Manchester–by–the–Sea that granted a special permit to landowner.  The special permit authorized landowner to reconstruct a one family house upon a legally nonconforming lot.  Concluding that landowner had met his burden of showing that the removal of the existing house and garage and the construction of a new single family house would not be substantially more detrimental to the neighborhood, a judge affirmed the board’s decision. Plaintiffs appealed.

Under its standard of review, the Appeals Court will uphold a zoning board’s decision and that of the reviewing Superior Court if a rational basis for the decision exists which is supported by the record.  In this case, application of the stated standard of review lead the court to affirm the judgment.

The criteria for issuing a special permit to demolish and reconstruct a single family house, where, as here, the use is allowed by right, is set forth in § 6.1.2 of the town’s zoning by-law, which follows the language of G.L. c. 40A, § 6.  Pursuant to § 6.1.2, the critical question is whether the proposed changes are “substantially more detrimental or injurious to the neighborhood than the existing nonconforming structure.” The record fully supported the judge’s conclusion that the board correctly determined that the change at issue would result in substantial improvements.

Scott Nellis owns residential property in an area of Coon Rapids designated “Low Density Residential–2” (LDR–2).  The City Housing Inspector, received a call from a person known to her who reported that there was a large pile of shavings from animal cages in Nellis’s back yard. The caller described a strong and foul smell emanating from the shavings. The caller further stated that during a conversation with Nellis, Nellis said that he bred snakes and possessed about 100 snakes in his house.

Based on the Inspector’s investigation, the city obtained and executed an administrative search warrant As they entered Nellis’s house, ammonia in the air burned their eyes and throats. One officer became physically ill after entering the house and remained ill for several days. The remaining officers wore masks for their protection during the remainder of the inspection.

During the inspection, Nellis admitted breeding, raising, and selling reptiles. He said that he owned about 100 snakes, along with other reptiles. He further stated that he raised rodents to feed the snakes. The inspection revealed roughly 300 snakes and 400 mice, along with a cat, lizards, iguanas, cockroaches, rats, and various feed insects in the maggot, pupae, or larvae stage.

Nellis challenged City’s decision affirming a citation for the keeping of non-domestic animals, in violation of Coon Rapids, Minn., City Code (CRCC) § 6–503(1) (2011), and a citation for prohibited home occupation use in violation of CRCC §§ 11–703 (2011) and 11–603(5)(a) (2011).

The Court of Appeals held that:

• Probable cause existed to support the administrative search warrant;
• The execution of the search warrant was reasonable under the Fourth Amendment;
• CRCC § 11–603(5)(a) was not unconstitutionally vague;
• The board had the authority to order Nellis to “reduce the total square footage of his home occupation in the home to be no more than 25% of the habitable square footage;
• CRCC chapter 6–500 is not unconstitutional because it does not have a grandfather clause;
• CRCC chapter 6–500 does not violate the Equal Protection Clause;
• City had a rational basis for enacting CRCC chapter 6–500; and
• The board did not act arbitrarily and capriciously in affirming the two citations against Nellis.

Plaintiffs brought Federal and New Jersey State constitutional claims of against City.  Plaintiff was a New Jersey limited liability company, was formed to own and operate a restaurant and sports bar to be named “Buck Foston’s” in the City of New Brunswick. Plaintiffs claimed that City’s alleged delay in the review and then denial of Buck Foston’s LLC’s application for a liquor license transfer: (1) were in retaliation for Plaintiffs’ exercise of commercial speech protected by the First Amendment in naming their proposed restaurant “Buck Foston’s”; (2) deprived Plaintiffs of the equal protection of law under the Fourteenth Amendment by treating the application differently than those of other similarly situated bars/restaurants; and (3) violated the corresponding provisions of the New Jersey State Constitution (Article I, Paragraph 6, and Article I, Paragraph 1, respectively).

The District Court ruled that there was a genuine issue of material fact sufficient to survive Defendants’ Motion for Summary Judgment on Plaintiffs’ First Amendment Retaliation Claim.

Firefighter commenced proceeding under Article 78, seeking review of city and its fire and police board’s determination terminating his disability benefits.

The Supreme Court, Appellate Division, held that determination that firefighter’s disability was not causally related to his job duties was supported by substantial evidence, and, thus, fire and police board properly terminated his disability benefits.  Although firefighter presented evidence to the contrary, hearing officer was entitled to weigh parties’ conflicting medical evidence and to assess credibility of witnesses.

In reviewing a determination on a firefighter’s claim for disability benefits, the Supreme Court, Appellate Division, may not weigh the evidence or reject the hearing officer’s choice when the evidence is conflicting and room for a choice exists.

Buffalo Urban Renewal Agency (BURA) and the City of Buffalo entered into a contract whereby BURA, an environmental testing and remediation company, agreed to perform various services for homeowners who participated in the City’s “Rehab Program,” which provided funds to qualified homeowners seeking to improve their properties. The contract documents specified the fee to which BURA would be entitled for each of the three services provided by plaintiff to the homeowners. According to BURA, the City was obligated under the contract to retain it to perform between 220 and 260 lead paint tests, and an equal number of clearance tests and risk assessments. BURA contended that City breached the contract because it retained BURA to perform only 44 lead paint tests and no clearance tests or risk assessments.

The appeals court agreed with the City that the clear and unambiguous language of the contract provided only for a “fee for services” arrangement.  The fee schedule sets forth only the agreed-upon per-unit price for each of the three services to be provided by BURA to the homeowners; it did not state that City is required to hire BURA to perform any minimum number of services.

In hybrid proceeding, county sought declaratory relief and Article 78 review of village’s denial of sanitary sewer system in connection with proposed county correctional facility. The Supreme Court declared null and void village’s amendment to zoning ordinance, denied village’s motions to dismiss and strike, and reserved decision with respect to sewer and municipal services.

The Supreme Court, Appellate Division, held that:

• Record was inadequate to determine if county was immune from village’s amendments;
• Declaration that amendments were preempted by state law was unwarranted; and
• Amendments did not improperly concerned with owner or occupier of land.

Record was inadequate to make determination, based upon balancing of public interests, whether county was immune, with respect to its siting of proposed correctional facility, from requirements of village’s amendments to its zoning ordinances to exclude correctional facilities from zoning districts in which proposed facility was sited, thus warranting remittal to lower court for determination, based upon more complete record, regarding such immunity.

Factors to be weighed in making a determination as to whether an entity is immune from a municipality’s zoning ordinances are the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests, the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, alternative methods of providing the needed improvement, intergovernmental participation in the project development process and an opportunity to be heard.

Declaration that village’s amendments to its zoning ordinances were null and void on state preemption grounds, insofar as they excluded correctional facilities from zoning districts in which proposed county facility was sited, was unwarranted in county’s suit to challenge those amendments, in light of limitations of state legislative control over siting of county correctional facilities and absence of any comprehensive and detailed regulatory scheme.

Amendments to village’s zoning ordinance to exclude correctional facilities from zoning districts in which proposed county facility was sited were not invalid on ground that they violated principle that zoning should be concerned with use of land, not with identity of user, because amendments were directed at land use, not at entity that owned or occupied land.

Amendments to village’s zoning ordinance to exclude correctional facilities from zoning districts in which proposed county facility was sited did not constitute exclusionary zoning.

Pedestrian brought action against business owner and village, seeking to recover damages for personal injuries allegedly sustained in slip-and-fall on icy public sidewalk adjacent to business.

The Supreme Court, Appellate Division, held that:

• No provision of village code subject owner to liability;
• Special use doctrine did not impose liability on owner; and
• Hazard on sidewalk was not created by artificial means.

Under the special use doctrine, a landowner whose property abuts a public sidewalk may be liable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to interfere with a street solely for private use and convenience in no way connected with the public use and the landowner fails to maintain the sidewalk in a reasonably safe condition. Special use doctrine did not act to impose liability on business owner in relation to pedestrian’s slip-and-fall on icy public sidewalk outside of business, because sidewalk was unencumbered by installation of any objects or by other variances in construction, and pedestrian submitted no evidence that sidewalk was constructed in special manner for benefit of owner.

The question presented by this case was whether New York State has the authority to condemn property owned by National Railroad Passenger Corporation, known as Amtrak, in the face of certain federal statutes that created Amtrak and govern the use of its property.

Amtrak brought an action against the Commissioner of the New York State Department of Transportation, asserting that the Commissioner’s effort to condemn Amtrak-owned property along the Bronx River is preempted by federal law. The State had already condemned six parcels of Amtrak property, and had plans to condemn one additional parcel, as part of the “Bronx River Greenway” project – a joint New York State, New York City, and federal redevelopment project to restore the riverfront, which includes the development of parks, bike paths, and running and walking trails along the Bronx River.

Amtrak had no interest in the subject property and was willing to part with it for the same amount of money that the State has placed in escrow for that very purpose. The only live issue was whether acquisition was properly effected by eminent domain, or whether the State had to buy the property from Amtrak. “Amtrak, having chosen not to raise the preemption issue in the eminent domain proceeding, belatedly brings it before this Court.”

The court concluded that Amtrak’s claims with respect to the Amtrak Bronx Rail Property are barred by the Eleventh Amendment (as to the six condemned parcels) and the statute of limitations (as to Parcel 178),

Doctor had operated a licensed medical practice since 2006.  In 2011, he began prescribing patients with opioid dependency a drug called Suboxone. Soon thereafter, a citation was issued to doctor for violating the Union Township Zoning Resolution for operating a “Suboxone Treatment Center” on the property without first obtaining a change in use permit.

Doctor then applied for a change in use permit, which was denied by the Planning and Zoning Director of Union Township.  The Zoning Director stated that a “Suboxone Treatment Center” is a substance abuse treatment center, which is not specifically listed as an approved function within the B–1 Business District where the property is located. The Union Township Zoning Resolution provides that uses which are not specifically permitted are prohibited, and thus the Doctor’s substance abuse treatment center was not permitted under the zoning classification. The Zoning Board of Appeals (“ZBA”) confirmed the decision and doctor appealed.

The Common Pleas Court found that doctor’s clinic fell within the practice of medicine, vacating the ZBA’s decision.  Consequently, the Court found that the treatment of patients with opioid dependency, including prescribing Suboxone, is within the scope of the Union Township Zoning Resolution allowing medical clinics in the B–1 Business District where Doctor’s property is located.

The Court of Appeals affirmed, holding that the Common Pleas Court decision finding that a substance abuse treatment center falls within the definition of “medical clinic” in the Union Township Zoning Resolution is supported by a preponderance of reliable, probative, and substantial evidence.

The Debtors are residential real estate developers. They proposed a Chapter 11 plan wherein the equity owners would retain their interests. Because the plan did not propose to pay creditors in full, this posed absolute priority problems. The owners addressed that problem by making a “new value” contribution.  This contribution was in the form of real property, three phases (Phases IV, V, and VI) of the land referred to as Northgate. The Debtors had no interest in any of the three properties. The contribution of the Northgate phases to the plan constituted the “new value” necessary to satisfy the absolute priority rule and to obtain confirmation.

The mechanics of the transfer of the real estate are of central importance. The Northgate phases were contributed under a Transfer and Development Agreement (TDA).  Under the TDA, the Northgate phases were to be transferred to the Debtor on the Effective Date and then immediately transferred out, either to New Stream Real Estate, LLC, the lienholder on Northgate, or its designee.  The Debtors retained an ownership interest in Northgate to the extent of any net profits from Phases IV and V. Those profits would pay creditors under the plan.

New Stream designated an entity known as GSRE 25 LLC to receive the Northgate property from the Debtor.  GSRE 25 has commenced development and sale of the Northgate properties. Operating under the belief that no transfer tax applies, title companies have assisted in the sales without requiring payment of transfer tax.  This prompted the Township’s complaint.

The Township’s motion for summary judgment was granted.  Future transfers made by GSRE 25, LLC, or any other non-debtor third party grantor, to any third party purchaser/grantee of the Northgate subdivision are not exempt from applicable transfer taxes. Further, judgment was entered in favor of the Township in the amount of the uncollected local transfer tax for those properties already sold.

Town Council voted to approve a budget that eliminated the funding for the position of the Department of Public Works (DPW) Director.

Director argued that he had a constitutionally protected property interest in his job as DPW Director. Director pointed both to the Charter language establishing that his employment term ran concurrently with that of the Town Council and to the Town Administrator’s letter indicating that his job was permanent.

The District Court concluded that the position of DPW Director was mandated by the Town Charter and that the town council violated the Charter when they de facto eliminated the position.

Plaintiffs case sued Jordan Valley Water Conservancy District (the District) after one of its water pipelines broke and damaged their home. Following discovery, the District moved for summary judgment, asserting, among other things, that the plaintiff homeowners could not prevail on their negligence claim because they had failed to designate an expert to testify regarding the applicable standard of care. The district court granted that motion, and the homeowners appealed. The court of appeals reversed, concluding that expert testimony was unnecessary because the District itself had previously determined that the pipeline should be replaced – a determination that in the court’s view sustained a standard of care calling for replacement.

The Supreme Court of Utah granted certiorari and reversed the decision of the court of appeals. The District’s internal decision recommending replacement of the pipe did not establish that such a move was required by a standard of care. And because the question whether a pipeline needs to be replaced is outside the knowledge and experience of average lay persons, the homeowners had an obligation to designate an expert to establish a basis for such a duty. Their failure to do so was fatal to their negligence claim, and the district court was right to dismiss it on summary judgment.

Landowner purchased property, via a warranty deed, in Chesapeake, Virginia.  Pursuant to the deed, the property was purchased subject to the easements, conditions, and restrictions of record insofar as they may lawfully affect it, including two right-of-way (“ROW”) agreements in favor of Columbia Gas Transmission.

Since purchasing the property, Landowner has maintained a fence, an above-ground swimming pool and shed, which are situated on the ROWs.  Running across the property and below grade of the ROWs are two high-pressure natural gas transmission pipelines that are maintained and operated by Columbia.

Columbia filed suit against Landowner, claiming the above-ground swimming pool, shed, and fence are encroachments. It contended that these improvements impair its ability to maintain and operate its pipelines in a safe and effective manner, thereby posing a risk to person, property, and the uninterrupted delivery of natural gas to the Tidewater area of Virginia.

Landowner contended that the fence is not a “building” or “structure” as contemplated and expressly prohibited by the ROW.

After a lengthy analysis, the court concluded that the term “structure” as contemplated and expressly prohibited by the ROW encompasses fences.

The court was good enough to inform us that, “Columbia presents no evidence to support a contention that all objects, for example something as trifling as a garden gnome, placed on the ROWs impair its ability to maintain and operate its pipelines in a safe and effective manner, thereby necessitating that object’s permanent prohibition.”  Good to know.

This lawsuit stems from the offer and sale of $35 million in revenue Bonds used to finance the construction of a 5,000–seat Event Center in the Town of Prescott Valley.  The underlying facts of the case have been covered previously in this publication.  In this stage of the ongoing litigation, the court ruled on multiple motions for summary judgment.

Although there were a great number of rulings, we will focus on those concerning the claims brought against issuer’s bond counsel – Kutak Rock.

The court found that plaintiffs failed to show that Kutak’s drafting of the Bond Documents resulted in a flawed lien over the NOI in favor of the Bondholders. Thus, Plaintiffs had not demonstrated a genuine issue of material fact that the OS was misleading or omitted material information on this ground and summary judgment was granted.

The court found that Kutak was entitled to summary judgment on Plaintiffs’ claims that Kutak failed to ensure the Trustee would have a method of obtaining information on whether NOI would be sufficient to pay debt service, due to the inclusion in the Loan Agreement of a provision giving the Issuer and Trustee the right at all reasonable times to examine and copy the Borrower’s books and records regarding the financial performance of the Event Center.

Kutak was not entitled to summary judgment on claims that the Bond Documents were defective for reasons relating to an Escrow Account, which the Development Agreement stated was to be held in the name of the Town and the Indenture stated was to be held by the Trustee.  Plaintiffs submitted evidence that this inconsistency caused concrete problems for the Bondholders when the Town refused to turn over the Escrow proceeds. At a minimum, there existed a genuine issue of fact as to whether the failure of the OS to disclose this inconsistency and any subsequent problems that arose with payment of the Escrow proceeds constituted a misstatement or omission under § 44–1991(A)(2).

Kutak was entitled to summary judgment on Plaintiffs’ claims that no mechanism addressed Fitch’s concern that sales taxes from the Event Center be remitted directly to the Trustee from the Town with no intercept from the Borrower, as a Fitch analyst had testified that adequate legal provisions in place.

Kutak was entitled to summary judgment on Plaintiffs’ claim that the TPT Revenues from the Event Center were not required to be deposited in the Revenue Account, as the Indenture requires the Trustee to immediately deposit into the Revenue Fund all TPT Revenues, as well as “any other payments or amounts required or otherwise specified.”

Kutak was granted summary judgment was on Plaintiffs’ claims based on Kutak’s alleged failure to disclose or implement the Town’s budgetary process and procedure.  A major point of contention for the Plaintiffs was the fact that the Bond Documents failed to provide a mechanism by which the Trustee could ensure that the Town would pay the pledged TPT Revenues while still complying with its annual budgetary requirements. According to the Plaintiffs, the OS was misleading in this regard because it simply stated that the Town would pay any deficiencies in debt service with TPT Revenues, without disclosing that the pledge was subject to compliance with the Town’s state-mandated budget requirements and procedure.  Kutak asserted that, as a matter of law, it was not required to disclose state statutes, and thus it could not be held liable for its failure to discuss the Arizona state budgetary law in drafting the Bond Documents and the court agreed.

Kutak was granted summary judgment on Plaintiffs’ claims that the Bond Documents were defective because the Trustee’s remedies were available only upon accelerating the Bonds, but the Indenture prohibits the Trustee from acceleration.  Kutak cited to the language of the Indenture, which in fact gives the Trustee broad permission to exercise remedies in the event of a default and does not require acceleration for those remedies to be available.

Kutak’s motion for summary judgment on Plaintiffs’ claim that Kutak failed to create a Lockbox Account was denied. Under the Development Agreement, the Town was required to pay certain amounts into a Lockbox Account. Kutak asserted that the obligation to create a Lockbox Account was imposed by the Development Agreement, which predated Kutak’s involvement in the Bond financing. In response, Plaintiffs pointed to evidence tending to show that, in fact, it was Kutak’s responsibility to ensure that the Development Agreement cohered with the other Bond Documents.  The court concluded that Plaintiffs had set forth sufficient evidence to create a genuine issue of material fact that it was Kutak’s responsibility to ensure that the Development Agreement worked with the rest of the Bond Documents, including ensuring that a Lockbox Account was created.

Kutak contended that it did not know, and could not reasonably have known, of the misstatements or omissions in the OS regarding projections or nondisclosure of demographic facts and thus is entitled to the affirmative defense provided by A.R.S. § 44–2001(B).  The court agreed, granting summary judgment on these claims.

The court found that Plaintiffs had shown a genuine issue of material fact as to whether a Fitch downgrade of the bonds was caused by risks concealed or misstated in the OS rather than by Prescott Valley’s economic downturn.  Consequently, Kutak’s motion for summary judgment was denied on its affirmative defense argument to the extent it pertained to loss correlating to the Fitch downgrade.

Kutak contended that it was entitled to summary judgment on Plaintiffs’ negligent misrepresentation because Plaintiffs failed to submit any evidence linking their loss to those misstatements in the OS regarding defects in the lien or security for the Bonds.   The court agreed, granting summary judgment on these claims.

LLC sought an order compelling the production of certain legal memoranda authored by the City of Richmond’s in-house and outside counsel. The City argued that the legal memoranda were subject to the attorney-client privilege and thus protected from disclosure.  LLC asserted that the City waived the attorney-client privilege as to the legal memoranda when a council member quoted a portion of their contents in a letter he sent to an outside third party.

City asserted that “a city council can only authorize waiver of the privilege by vote or other similar approval by the council as a whole—the unilateral, unauthorized acts of a single council member do not constitute a waiver.”  The court agreed, find that, “In short, the acts of a single councilmember, acting unilaterally and without the requisite authority, cannot erode the protections of the City Council’s attorney-client privilege.”

Planning and Zoning Commission denied City’s application for a special use permit to expand an existing landfill.  City appealed, claiming that the Commission’s decision was not supported by substantial evidence.  City argued that the Commission “gave only general, nonspecific reasons as the basis of unanimous denial” and that the superior court’s reliance on the defendant’s finding of intensification was improper and not supported by the record.

The appeals court disagreed, affirming the judgment of the superior court.

Section 7.5.B of the Wallingford Zoning Regulations sets forth the criteria for evaluating applications for special permits. Most relevant to this appeal is § 7.5.B.1.a, which provides that the defendant should consider “the size and intensity of the proposed use or uses and its or their effect on and compatibility with the adopted Plan of Development, the specific zone and the neighborhood….”  Thus, the Wallingford Zoning Regulations explicitly listed intensity of the proposed use as a factor for the Commission’s consideration when deciding a special permit application. The Commission stated that intensification, e.g., an unacceptable increase in the intensity of the current use, was the basis for denying the special permit application. Thus, the appeals court concluded that the record contained substantial evidence supporting this specific reason, and, thus, the City’s claim that the Commission provided only a general reason was without merit.

Deputy Chief of Police was terminated when Town eliminated the position due to budget cuts.

Deputy Chief sued, claiming that the Town deprived him of his Fourteenth Amendment right to procedural due process by failing to provide him with a hearing both prior to and after eliminating his position. The Town contended that because Deputy Chief’s position was eliminated as a result of budgetary issues, and not based on any charges against him, it was under no obligation to provide a pre- or post-termination hearing unless Deputy Chief specifically requested one.

For the purposes of its motion for summary judgment, the Town conceded that the officer had a constitutionally protected property interest in his position as Deputy Police Chief.  The Town also conceded that it deprived Deputy Chief of that interest when the Commissioners voted to eliminate the position.  However, the Town argued that this deprivation was not effected without due process, and that it did not fail to provide Deputy Chief with adequate procedural protections either before or after his termination.

The court found that, although officer failed to protest his termination before it occurred, under the circumstances here this failure does not prevent him from claiming a violation of his due process right to a pre-termination hearing. Because the Town provided him no notice prior to the layoff becoming effective, it did not afford him an opportunity to timely object, which is a prerequisite to waiver of one’s pretermination hearing rights. Therefore, Town’s motion for summary judgment was denied with respect to this aspect of its claim.

However, the court found that the Deputy Chief could not satisfy the criteria to show that he was unconstitutionally deprived of a post-termination hearing. In particular, he failed to create a genuine issue of fact as to whether he requested a post-termination hearing.

Former officer with city’s police department brought § 1983 action against city, police chief, and city manager, alleging that his termination constituted First Amendment retaliation based on his political speech and union activities, and that defendants caused him to be falsely arrested, imprisoned, and prosecuted.

The Court of Appeals held that:

• Municipal liability did not attach on First Amendment retaliation claims;
• Officer’s speech activities did not play substantial role in disciplinary and personnel decisions; and
• Officer’s false arrest, imprisonment, and malicious prosecution claims failed.

Local governments can be held liable under § 1983 for constitutional torts caused by official policies, but such municipal liability is limited to acts that are, properly speaking, acts of the municipality, that is, acts which the municipality has officially sanctioned or ordered.

In determining whether a local government’s policy or action represents official municipal policy, so that the government can be held liable under § 1983 for constitutional torts resulting therefrom, the court must determine whether the decision at issue was made by those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.

City brought declaratory judgment action against political committee, as the main proponent and sponsor of initiative petition, seeking a declaration that two questions being put to the voters with regard to a convention center project were in accordance with the provisions of the city charter and general laws of the state.

Committee counterclaimed, seeking a declaration that lease approval question had been improperly placed on special election ballot. The circuit court allowed master developer to intervene, and entered judgment in favor of city and developer, and dismissed committee’s counterclaims for declaratory and injunctive relief for lack of standing. Committee appealed.

The District Court of Appeal held that:

• City waived issue of whether political committee had standing to raise counterclaims;
• Master developer was precluded from challenging committee’s standing;
• Voters were required to be provided with, and allowed to approve, material terms of lease pursuant to city charter provision;
• City charter provision was not intended to control the sequence of steps involved in approving lease agreement;
• Lease approval question as posed on ballot summary was insufficient to provide the voters with the information needed to intelligently cast their ballots to approve or disapprove the lease of certain property in the vicinity of convention center; and
• Ballot question violated the statutory requirement of clarity and accuracy, and had to be removed from ballot.

Voters who were empowered by city charter to approve the lease of certain property were entitled to receive the same essential information a commissioner would need to decide whether to approve such a lease.  While charter provision did not require that voters be presented with every single term or provision of lease, they were required to be provided with, and allowed to approve, the material terms of the lease pursuant to the charter provision.

Lease approval question as posed on ballot summary was insufficient to provide the voters with the information needed to intelligently cast their ballots to approve or disapprove the lease of certain property.  Lease approval question lacked material terms, including the amount of rent to be paid, square footage and exact location of the property to be conveyed to developer, height of any air rights to be transferred, and a statement of other additional consideration being given by the parties.

Not-for-profit organizations representing real property owners in two counties brought action against Board of Trustees of the Internal Improvement Trust Fund, the Department of Environmental Protection, city, and county, alleging that beach restoration project constituted a taking.

The District Court of Appeal held that:

• The Department and the Board waived their argument of improper venue, and
• The nature of plaintiffs’ inverse condemnation claim did not demand that it be treated like an eminent domain proceeding, which would have required it to be litigated in the county in which the affected land was located, as it involved question of subject matter jurisdiction, rather than venue.

This appeal arose from a bond validation proceeding in which the State of Georgia petitioned the Fulton County Superior Court for a judgment approving the issuance of certain taxable revenue bonds by the Development Authority of Fulton County (“DAFC”) and validating the bonds and various bond security documents.

After the state filed the petition validating the issuance, Sherman filed a document entitled “Notice of Becoming Party to Bond Validation Petition Proceeding,” in which he gave notice that he thereby became a party to the proceedings for purposes of stating his objections to the bond validation. DAFC moved to strike Sherman’s notice on the ground that Sherman was required to follow the intervention procedures of OCGA § 9–11–24(c) in order to become a party.

The trial court denied the motion to strike, finding that under the authority of Hay v. Dev. Auth. of Walton County, 239 Ga.App. 803 (521 S.E.2d 912) (1999), Sherman’s notice was sufficient to authorize him to participate as a party. Eventually, the trial court entered an order validating and confirming the bonds, and Sherman filed this appeal.

After the appeal was docketed, the court decided Sherman v. Dev. Auth. of Fulton County, 321 Ga.App. 550 (739 S.E.2d 457) (2013).  Overruling the contrary holding in Hay, supra, 239 Ga.App. at 804–805, the court held that a person must follow the intervention procedures of OCGA § 9–11–24 in order to become a party to a bond validation proceeding.

In this appeal, the court concluded that Sherman, 321 Ga.App. at 554–555(1), should be given retroactive application because the court did not state that its decision should be applied only prospectively and the equities favor retroactive application under the three prongs of Chevron Oil Co., 404 U.S. at 106–107(II).  Thus, Sherman lacked standing and the court dismissed his appeal.

Opponents of referendum regarding property annexation by town brought action against town seeking to enjoin referendum. The ultimate issue presented was what may be placed on a petition for referendum pertaining to land annexation under Maryland Code.  Additionally, the parties presented questions regarding a Town Manager’s authority to create procedures for the validation and verification of signatures on a referendum petition, whether the administrator in this particular case observed his own procedures, and to what extent, if any, the Election Law Article of the Maryland Code and Maryland common law should apply to municipal land annexation referenda.

The Court of Appeals held that:

• Referendum opponents could bring a common law mandamus action challenging town manager’s decision to approve petition for referendum;
• Inclusion of additional resolutions to petition for referendum pertaining to land annexation, which resolutions were nonreferrable, did not invalidate the petition;
• Town manager had the implied authority to create and publish guidelines for verification of signatures on petition for referendum; and
• Town manager’s publication of guidelines did not violate the general public’s due process rights.

Property owner challenged special assessments that city levied against its property for curb, gutter, and storm sewer improvements to an adjoining road.

Property owner appealed the Tax Tribunal’s order upholding the special assessments.  Citing the strong presumption that special assessments are valid, the appeals court held that the Tribunal did not commit an error of law or adopt a wrong legal principle, its factual findings were supported by competent, material, and substantial evidence, and the Tribunal’s lengthy delay in issuing its opinion did not deny petitioner its right to procedural due process.

Applicant brought declaratory judgment action seeking determination that application to heritage-preservation commission for a certificate of appropriateness was a written request related to zoning, such that city had only 60 days to approve or deny application.

The Supreme Court of Minnesota held that:

• Trial court had subject matter jurisdiction;
• Written request relating to zoning referred to written request that had a connection, association, or logical relationship to the regulation of building development or the uses of property; and
• Application to heritage-preservation commission for certificate of appropriateness was written request relating to zoning.

A written request relating to zoning under statute governing time deadlines for agency action, requiring agency to approve or deny request within 60 days, referred to a written request that had a connection, association, or logical relationship to the regulation of building development or the uses of property, rather than referring only to those requests that were explicitly authorized by an applicable zoning ordinance or statute.  The phrase “relating to” had been interpreted to encompass any connection, association, or logical relationship to the noun modified by the phrase, and statute said nothing about zoning statutes or ordinances.

Application to a heritage-preservation commission for a certificate of appropriateness was a “written request relating to zoning” under statute governing time deadlines for agency action, and therefore city had 60 days to approve or deny application, where a certificate of appropriateness involved a particular property and affected specific property rights, state’s historic-preservation-enabling laws recognized a connection, association, or logical relationship between heritage preservation and zoning, and city’s heritage-preservation ordinances identified a connection, association, or logical relationship between an application for a certificate of appropriateness and zoning. Heritage-preservation proceedings are akin to hearings on a conditional use permit directed at a specific property and related to specific property rights.

Non-profit corporation and its subsidiary filed tax appeals from municipalities’ refusals to exempt property owned by corporation under statute exempting properties actually and exclusively used in furtherance of a taxpayer’s charitable purpose.

The Tax Court denied non-profit’s appeal, finding an insufficient nexus between the housing provided and the services offered by non-profit to justify a charitable property tax exemption.

The Appellate Division reversed and remanded for a judgment granting non-profit the charitable property tax exemption. It determined that non-profit had fully integrated its housing and support services and satisfied the test set forth in Presbyterian Homes of the Synod of N.J. v. Division of Tax Appeals.  More specifically, the Appellate Division held that non-profit used the property for the charitable purpose of deinstitutionalizing the mentally disabled, thus relieving the government of having to provide for their housing and care.

The Supreme Court of New Jersey held that, as a matter of first impression, corporation and its subsidiary qualified for tax-exempt status.

Non-profit corporation and its subsidiary, which provided supportive housing and services for mentally disabled individuals, actually used their residences for the charitable purpose of promoting and providing permanent, normalized community living arrangements for psychiatrically disabled individuals, and, thus, they qualified for tax-exempt status.  Their charitable work spared the government an expense that it ultimately would have bore, the property was used in a manner to further the charitable purpose, they received substantial sums of money from federal and state agencies to purchase housing and deliver supportive services to the psychiatrically disabled, and they were addressing an important and legitimate governmental concern, namely the provision of both housing and substantial supportive services that fostered the prospect of independent and productive living in the community for the mentally disabled, and homeless, and they were not engaged in a seemingly commercial enterprise.

In this matter, the Supreme Court of New Jersey reviewed the Appellate Division’s invalidation of the most recent iteration of Council on Affordable Housing (COAH) regulations applicable to the third round of municipal affordable housing obligations (Third Round Rules). In the Third Round Rules, COAH proposed a new approach—a “growth share” methodology—for assessing prospective need in the allocation of a municipality’s fair share of the region’s need for affordable housing.

In invalidating the Third Round Rules, the Appellate Division expressed doubt about whether any growth share methodology adopted by COAH could be compatible with the Mount Laurel II remedy that “appears to militate against the use of” a growth share approach for determining a municipality’s affordable housing obligation.

The Supreme Court of New Jersey concluded that, unless the Legislature amends the Fair Housing Act (FHA), which tracks the judicial remedy in its operative provisions, the present regulations premised on a growth share methodology cannot be sustained. The changes in the Third Round Rules are beyond the purview of the rulemaking authority delegated to COAH because they conflict with the FHA, rendering the regulations ultra vires.

“Moreover, due to COAH’s failure to enact lawful regulations to govern municipalities’ ongoing obligations to create affordable housing under the FHA, we have no choice but to endorse the remedy imposed by the Appellate Division in order to fill the void created by COAH. COAH shall adopt regulations, as directed by the Appellate Division, without delay. As modified by this opinion, we thus affirm the Appellate Division’s judgment with respect to the invalidity of the Third Round Rules under the FHA.”

Landlord brought action seeking to compel New York City Housing Authority to reinstate Section 8 subsidy payments.

The Supreme Court, Appellate Division, held that the cause of action accrued, and four-month statute of limitations began to run, when landlord did not receive all of the rent owed.

The Supreme Court of Oklahoma took up a challenge to several projects concerning the “Master Lease Program” of the Oklahoma State Regents for Higher Education authorized by 70 O.S.2011 §§ 3206.6–3206.6b.  This Act enables the Oklahoma State Regents for Higher Education to provide lease financing for colleges and universities which are part of the Oklahoma State System for Higher Education. The Oklahoma Development Finance Authority (ODFA) sought the approval of the bonds which would be used to build various projects.

The court held that bonds issued by the Regents do not violate the balanced budget provisions because the Legislature has no authority to direct the entity’s spending decisions. Because these bonds are payable only by the Regents, they cannot become debts of the state as a matter of law. The Regents have the sole constitutional authority to disburse funds appropriated to them in a lump sum by the Legislature. The Legislature cannot be forced to appropriate funds to repay the bonds because it has no authority to dictate such a specific expenditure to the Regents.

Employee brought action against fire protection district alleging that he was wrongfully terminated for attempted to stop a training exercise.

The Supreme Court of Oklahoma held that evidence was sufficient to support finding that employee was terminated in retaliation for opposition to unlawful and unsafe training exercise.

Plaintiff King was a paid firefighter for the Berryhill Fire Protection District and worked under the supervision of Fire Chief Downing. Chief Downing wanted to remove structures from real property he owned and had received an estimate for the demolition of structures on his property in the amount of $10,000. Rather than paying to have the structures demolished, Chief Downing began planning a live burn training exercise on the property even though gasoline tank batteries were located on nearby property on three sides of his property, trains operated on tracks on the immediate east side of his property, electrical lines were near the structures, and there was a large tree that could have caught fire. Further, there was no water immediately available at the proposed burn site. At trial, witnesses for both parties testified that the property was not an appropriate site for such a drill.

Driver sued police officer and city, alleging that officer in unmarked police vehicle hit her vehicle.

The City moved to dismiss the employee under section 101.106(e) of the Civil Practice and Remedies Code, which provides: “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (West 2012). The trial court granted the motion and dismissed the employee.

The City then filed a plea to the jurisdiction seeking its own dismissal pursuant to section 101.106(b), which provides: “The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.” Id. § 101.106(b). The City argued that by suing the employee as well as the City, Driver had irrevocably elected to sue only the employee.

The appeals court concluded that although 101.106(b) may “immediately and forever bar any suit against the governmental unit,” this bar does not apply if  “the governmental unit consents.”  “Consent” as used in 101.106(b) includes the express waiver of municipal immunity in section 101.021 of the Civil Practice and Remedies Code.  Under that section, a governmental unit is liable for certain damages arising from the operation or use of a motor-driven vehicle.

Property owner submitted a variance request. The Board of Zoning Appeals denied the variance request. Property owner appealed. The Circuit Court entered judgment in favor of property owner and rezoned the property. City appealed.

The Court of Civil Appeals held that:

• Property owner did not have a right to continue the nonconforming use of property, and
• The city’s denial of property owner’s request to change the zoning classification of property from residential to business was not arbitrary or capricious.

Property owner did not have a right to continue the nonconforming use of property, even though predecessor in title had previously used the property zoned residential for a business.  The property had previously been used by owner’s father as a gravel pit.  When owners’ parents divorced, owner’s mother acquired title to the property.  There was no evidence that the property continued to be used as a gravel pit after owner’s mother acquired title to the property, and thus the nonconforming use of the property had been discontinued for more than one year.

This suit involves the offering and sale of $35 million in revenue bonds (the “Bonds”) used to finance the construction of a 5,000–seat Event Center in the Town of Prescott Valley, Arizona.  The details of the case have been previously reported herein.

The claims subject to this particular Motion in the ongoing litigation were those of a number of individual Bondholders whose interests are represented by the Indenture Trustee of the Bonds, Wells Fargo. The Defendants in this case are numerous. They include the underwriters for the Bonds, attorneys for the underwriters, and the various entities that received the proceeds for the Bonds and built the Event Center.

• Defendants’ Motion for Summary Judgment was granted as to the claims of the 53 Bondholders who failed to return questionnaires.
• Wells Fargo was prohibited from bringing claims on behalf of any Bondholders not identified by the June 15, 2012 deadline.
• Defendants’ Motion for Summary Judgment on the Arizona Securities Act (ASA) claims was granted as to the secondary market purchasers who did not purchase their Bonds from Defendants, however, Defendant’s Motion for Summary Judgment was denied as to the ASA claims of all other Bondholders.
• Defendants’ Motion for Summary Judgment on the negligent misrepresentation claims was denied as to those Bondholders who claimed to have relied on the Fitch Rating or the Official Statements (OS), however, Defendants’ Motion for Summary Judgment on the negligent misrepresentation claims was granted as to those Bondholders who relied only on their brokers or only received the OS without any indication that they relied on it.

Apprenticeship program and employers filed action against California agencies and officials seeking declaratory and injunctive relief, principally on ground that actions of California Department of Industrial Relations (CDIR) were inconsistent with federal regulations and hence preempted.

The Court of Appeals held that:

• Federal subject-matter jurisdiction existed over preemption claim;
• On issue of first impression, phrase, “Federal purposes,” under federal apprenticeship regulations referred to federal laws or actions that in some way addressed apprenticeship or made conformity with federal apprenticeship standards a condition of eligibility for the federal assistance at issue;
• Court did not owe Auer deference to interpretation of apprenticeship regulation by Department of Labor (DOL);
• Interpretation of apprenticeship regulation by DOL was entitled to Skidmore deference;
• CDIR could require contractors on projects funded by Build America Bonds and tax-exempt municipal bonds to comply with California’s apprenticeship standards;
• California “needs test” for approval of new apprenticeship programs in building and construction trades did not violate dormant Commerce Clause;
• “needs test” did not violate equal protection; and
• “needs test” did not violate substantive due process.

CDIR could require contractors on projects funded by Build America Bonds and tax-exempt municipal bonds to comply with California’s apprenticeship standards, since those bonds did not condition federal assistance provided on compliance with federal apprenticeship standards.

The City of Alameda offered of municipal bonds to finance the development of a cable and Internet system.  Several Nuveen entities purchased about twenty million dollars worth of the bonds and then lost money on the bonds when the City sold the system several years later. Nuveen brought federal and state securities claims against the City, alleging that the City misrepresented the risks to investors.

The Court of Appeals Nuveen held that Nuveen had not shown a triable issue of fact on the issue of loss causation. For its federal claims under Section 10b–5 and Section 20(a) of the Securities Exchange Act of 1934, Nuveen’s theory that it would not have purchased the securities but for the City’s alleged misrepresentation of the risks went only to show reliance, or transaction causation. Missing was the necessary link between the claimed misrepresentations and the economic loss Nuveen suffered.

Although Nuveen pitched its appeal as novel because the notes were traded on an inefficient market, rather than a more familiar efficient market like one of the stock exchanges, this wrinkle did not change the result. Federal securities law requires proof of both transaction and loss causation.

The City had statutory immunity from suit on Nuveen’s state claims. California courts have applied § 818.8 of California’s Government Claims Act to immunize public entities from liability for misrepresentations sanctioned by those entities. The California Corporate Securities Act did not override that immunity.

Group homes for recovering alcoholics and drug users, a group home owner, and group home residents brought lawsuits against city challenging the enactment of a city ordinance having the practical effect of prohibiting new group homes from opening in most residential zones, alleging discrimination under the federal Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Equal Protection Clause.

The United States District Court granted summary judgment in favor of the city. Plaintiffs appealed.

The Court of Appeals held that:

• Fact issues precluded summary judgment on plaintiffs’ disparate treatment claims;
• Fact issues precluded summary judgment on group homes’ damages claim under the FHA; and
• Fact issue precluded summary judgment on one resident’s claim for emotional distress damages under the FHA.

Genuine issues of material fact existed as to whether city ordinance was enacted with the discriminatory purpose of harming group homes and, therefore limiting the housing options available to disabled individuals recovering from addiction, and whether the ordinance had an adverse effect on group homes and group home residents, precluding summary judgment on disparate treatment claims.

Police chief appealed a final order of the Criminal Justice Standards and Training Commission suspending his law enforcement certification for 18 months, to be followed by two years’ probationary reinstatement.

The District Court of Appeal held that dual roles played by attorney as staff counsel and prosecutor deprived police chief of an impartial hearing.

Dual roles played by attorney as staff counsel, in which capacity he offered advice and recommendations to Criminal Justice Standards and Training Commission, and as prosecutor, in which capacity he advocated case against police chief and pursued the maximum administrative penalty, deprived police chief of an impartial hearing and required reversal of suspension order.  While the heightened staff penalty recommendation was not ultimately implemented, it was clear from the record that the prosecution was given enhanced access to the decision-making body, which undermined the Commission’s function as an unbiased, critical reviewer of the facts.

Employee filed a complaint for declaratory judgment, injunctive relief, and monetary damages against the city, which had treated his project manager position as if it was unclassified and had never created an eligibility list for the position.

The District Court of Appeal held that, because city charter did not list the position of project manager as an unclassified position, it was a classified position, and having failed to amend city charter to include project manager position in the list of unclassified positions, city could not refuse to afford employee, who was project manager, the benefits of the classified position because of the city’s lapses.  Thus, city was estopped from claiming any advantage based on its own acts and omissions.

Police chief of the City of Georgetown in Kentucky was removed from his position by the mayor. The chief alleged that he was terminated in violation of a City of Georgetown ordinance that stated that he could be terminated only for cause, and only by the city council.

The police chief contended that the local ordinance was preempted by the Home Rule Statutes, which provide that the mayor “shall be the appointing authority with power to appoint and remove all city employees, including police officers, except as tenure and terms of employment are protected by statute, ordinance or contract and except for employees of the council.”

The court of appeals found no conflict between the two regulations. The Home Rule Statutes give the mayor authority to appoint and remove all city employees, although the statute does not state that such power is solely left to the mayor. The Home Rule Statutes does not strip the mayor of his or her authority to appoint and remove the chief of police; rather, a plain reading of the local ordinance indicates that the city ordinance simply sets forth another option for a valid termination of the chief of police by the city council for cause.  The local ordinance does not state that the mayor is stripped of his or her removal authority, nor that the city council has the sole authority to terminate the police chief. Because the police chief was terminated by the mayor, which is authorized, his claims were properly dismissed.

As a result of Hurricane Katrina, the Property, which was the former location of the Lake Terrace Shopping Center (a strip mall), sustained extensive damage.  DMK purchased the Property for $1.35 million. At the time of the purchase, the hurricane damage to the Property had not been repaired.  The City awarded DMK an Economic Development Fund grant totaling $250,000, which was intended to help bring the Property back into commerce.

The City commenced a code enforcement proceeding against DMK.  The City alleged that DMK was in violation of its municipal ordinances prohibiting public nuisance and blighted property. The City’s administrative hearing officer (HO) found DMK guilty of the charged violations and imposed various fines.

DMK appealed, alleging procedural, statutory, and constitutional contentions relating to the administrative hearing, essentially: (i) witnesses not being required to testify under oath at the administrative hearing, and (ii) hearsay evidence being accepted and the inability to cross-examine witnesses.

The appeals court found no violations of DMK’s rights, upholding the judgment against it.

Wheelchair-bound school visitor who was injured when his wheelchair tipped while rolling over a speed bump in high school parking lot brought action against parish school board for negligence and violation of the ADA. The Nineteenth Judicial District Court awarded summary judgment to school board on the ADA claim, and designated its judgment as final for purposes of appeal. Visitor appealed.

The Court of Appeal held that school board did not intentionally discriminate against visitor, as necessary to support compensatory damages under the ADA.

Even if placement of the speed bumps violated an ADA guideline, nothing suggested that school board was aware of any such violation, there had been no prior accidents similar to that suffered by visitor, and school board set about removing the speed bumps after visitor’s accident.

County filed condemnation petition, and court-appointed condemnation commissioners awarded damages to property owners. Owners filed exceptions to award and requested jury trial. After jury assessed damages for owners of $1.3 million, the Circuit Court added $650,000 for heritage value to jury’s verdict.  County appealed.

Holdings: The Supreme Court of Missouri held that:

• Parties’ stipulation to the substance of nine unrecorded bench conferences eliminated any prejudice to county, and inaudible parts of trial transcript were not prejudicial to county;
• Heritage value statute was irrelevant to jury’s task of determining fair market value of subject property, and, therefore, exclusion of evidence of heritage value statute from jury’s consideration was proper;
• Purported statement by owner during hearing before condemnation commissioner, about amount for which he would have settled during negotiations with county, was not admissible at jury trial as a prior inconsistent statement or an admission against interest;
• Evidence regarding price that an owner of adjacent property received when, years after selling some of that property to real estate developer, he sold the portion of the property he had retained for his residence was inadmissible;
• Proposed opinion testimony by two city employees regarding effect that challenges to the development of subject property would have on its value was subject to the discovery rule regarding disclosure of expert testimony regarding facts known and opinions developed in anticipation of litigation;
• Substantial evidence supported jury’s award of $1.3 million as the fair market value of subject property; and
• Heritage value statute, requiring additional compensation of 50 percent of fair market value of property that has been owned by a family for 50 or more years, does not violate state constitution.

Heritage value statute did not violate constitutional prohibition against using public funds for a private benefit.  Primary object of the expenditure in the statute was to compensate a class of persons whose property was acquired through eminent domain for the benefit of the public, and, therefore the compensation authorized by that statute was legal, notwithstanding that it also involved as, an incident, an expense that, standing alone, would not be lawful.

Property owner brought declaratory action against town planning board challenging the imposition of an additional requirement, after the conditional preliminary approval of the subdivision plan, that owner submit proof of compliance with provision limiting transfer of sanitary flow credits or of a variance by county department of health services that was not based on the credit transfer. The Supreme Court found imposition of the additional requirement arbitrary and capricious. Board appealed.

The Supreme Court, Appellate Division, held that board could not impose additional requirement after granting conditional preliminary approval.

On appeal, the court was asked to determine whether a taxable transfer occurs under Tax Law § 1201(b) and Administrative Code of the City of New York § 11–2102(a) when a residential housing cooperative corporation amends its certificate of incorporation as a part of its voluntary dissolution, reconstitution, and termination of participation in the Mitchell–Lama housing program (see Private Housing Finance Law § 10 et seq.).

The court concluded that, that because there is no transfer or conveyance of any real property or an interest in real property under those circumstances, no taxable event occurs.

Mother, representing estate of her son who was murdered for providing confidential tip, brought action alleging that municipality and police officers were liable for her son’s death.

The Court of Appeals held that:

• Issue of whether municipality and police officers had special relationship with informant properly was submitted to the jury and
• Municipality did not acquire knowledge that inaction could lead to harm to informant.

To establish a special relationship beyond the duty that is owed to the public generally, in the context of a negligence claim under New York law against a municipality or its employees acting in a governmental capacity, four elements must be present: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.

Municipality did not acquire knowledge that inaction could lead to harm to informant, and thus informant’s estate could not establish a special relationship beyond duty that was owed to public generally on negligence claim under New York law against municipality acting in governmental capacity, where police officers who dealt with informant did not know that he was in danger.

Political candidate commenced proceeding to validate petition designating him as candidate in primary election for party’s nomination for office as member of city council, and to invalidate designating petition of opponent.  The Supreme Court entered final order validating candidate’s petition and declining to invalidate opponent’s petition. City’s board of elections and candidate appealed and cross-appealed.

The Supreme Court, Appellate Division, held that:

• Candidate’s petition substantially complied with statutory and regulatory requirements, and
• Opponent’s petition also satisfied statutory requirements.

Amended cover sheet of candidate’s petition substantially complied with statutory and regulatory requirements, despite candidate listing two volumes on his amended cover sheet which were not filed as part of his designating petition.  In any event, candidate was not actually notified of, and given opportunity to cure, purported “extra volumes” defect, as required by rules of city’s board of elections.

Designating petition submitted by candidate for position as member of city council complied with statutory requirements by indicating each signer’s respective street address and county within in which each signatory resided.

Parents of developmentally disabled student who died after suffering anaphylactic reaction to blueberries at private school, individually and as administrators of student’s estate, brought action against city and its department of education, school, and registered nurse, alleging that defendants negligently permitted student to become exposed to blueberries, breached their duty to monitor, supervise, and control student, failed to exercise reasonable care in protecting student from injury, and failed to properly diagnose, manage, and treat student’s allergic reaction.

The Supreme Court, Appellate Division, held that:

• Mandate to provide free and appropriate public education (FAPE) did not expand department’s duty of care;
• Department was not vicariously liable for acts of student’s private nurse;
• School provided adequate supervision of student;
• Deficiencies in school’s supervision of student was not proximate cause of his death;
• School responded reasonably to student’s anaphylactic reaction;
• Even if school’s nurse owed duty of care to student, she did not depart from good and accepted practice; and
• Private nurse did not depart from good and accepted practice.

Petitioners commenced proceeding under Article 78, seeking review of two determinations of town’s board of zoning appeals granting applications for certain area variances submitted by member on behalf of limited liability company (LLC) property owner. The Supreme Court granted the petition and annulled the determinations. Appeal was taken.

The Supreme Court, Appellate Division, held that:

• Board had jurisdiction over the applications, and
• Board’s determination had a rational basis and was not arbitrary and capricious.

Town’s board of zoning appeals had jurisdiction over applications for area variances submitted by member of LLC property owner, where: 1) board was clearly aware that LLC was owner of the property, and that member was acting on LLC’s behalf; and 2) each application was accompanied by an owner’s affirmation form which reflected that LLC was owner of the property, and that member was its agent.

Determination of town’s board of zoning appeals granting applications for certain area variances submitted by member on behalf of LLC property owner had a rational basis and was not arbitrary and capricious, where the board properly balanced the requisite statutory factors, and it found that benefit to the LLC outweighed detriment to the health, safety, and welfare of the neighborhood or community.

The City of Burlington entered into a Master State and Municipal Lease/Purchase Agreement (the “MLA”) under which it secured funds for the lease-to-purchase of telecom equipment and for the construction and operation of a city-wide fiber optic network. The City has used the network to provide voice, data, and cable television services through an entity known as Burlington Telecom (“BT”). After Burlington stopped appropriating funds to make payments under the MLA, Citibank N.A. filed a fifteen-count complaint raising a variety of claims against Burlington and McNeil, Leddy & Sheahan, P.C. (“McNeil”), which served as counsel to the City.

Burlington alleges that prior to entering the MLA, the City expressed concern that the MLA might prevent it from seeking financing from other lenders in the event that it required additional funds for BT’s expansion within the City and to surrounding areas. According to Burlington, it was provided assurances that CitiCapital would provide such financing in the event it was required. According to Burlington, CitiCapital in effect promised to proceed in good faith and work together with Burlington when the additional financing became necessary.

In February 2008, Burlington sought additional funding from CitiCapital.  At around the same time, though, Citibank entered negotiations to sell CitiCapital’s municipal leasing portfolio. In advance of the prospective sale, CitiCapital instituted a moratorium on new business and, according to Burlington, simply refused to negotiate new financing terms. Burlington did not obtain additional funds from CitiCapital, and after the credit market collapsed in the fall of 2008, no other financing options materialized.  Thereafter, Burlington stopped making payments under the MLA and this lawsuit ensued.

At the motions stage of the proceeds, the court analyzed whether a promise to negotiate in good faith is illusory or enforceable.  The court ultimately concluded that such promises may in theory be enforceable, but not under these circumstances due to the absence of anything other than the vaguest of assurances.

The court did indicate, however, that Burlington might succeed under a theory of promissory estoppel.

The court also ruled on a number of additional motions to dismiss and affirmative defenses and remanded for further proceedings.

City redevelopment and housing authority filed petition to condemn nonblighted property within approved redevelopment project. Owner of subject property filed answer and grounds of defense to condemnation. The Circuit Court granted redevelopment and housing authority’s motion to strike owner’s objections and affirmative defenses, and authorized taking of property by eminent domain. Owner appealed.

The Supreme Court of Virginia held that:

• Redevelopment and housing authority did not have statutory authority, after July 1, 2010, to acquire by eminent domain nonblighted property within redevelopment project by merely filing petition for condemnation prior to July 1, 2010, and
• Application of statute limiting exercise of eminent domain to eliminate blight to property that was itself blighted did not deprive redevelopment and housing authority of any vested right in nonblighted property.

In February 2008, the Homer City Council approved a bond proposition and issued an election brochure entitled “Questions & Answers about Homer Town Square and the New City Hall.” Homer resident Frank Griswold filed a complaint with the Alaska Public Offices Commission, alleging that the brochure constituted the use of municipal funds to influence the outcome of a ballot measure without an appropriation ordinance in violation of AS 15.13.145.1 The commission agreed with Griswold and fined the City $400.

Griswold filed a public records request with City Manager requesting any documents relating to the brochure. The City of Homer eventually produced all of the emails requested, except for privileged emails and deleted emails that could not be recovered without expensive software. Griswold sought review of city manager’s response to his public records request.  The Superior Court affirmed city council’s determination that manager had made good faith effort to comply with request. Griswold appealed.

The Supreme Court of Alaska held that:

• City manager made good faith effort to locate requested records;
• City did not destroy records in violation of Public Records Act;
• Trial court did not violate requestor’s right to a hearing;
• Trial judge did not indicate an appearance of partiality; and
• Award of attorney’s fees to city was reasonable.

City manager made a good faith and reasonable effort to locate records identified in requestor’s public records request for emails related to public bond proposition so as to comply with city code provision related to records requests.  City’s computer system manager explained that he spent 40-50 hours searching for the email records that were requested by requestor, he stated that he searched the backup system and computer hard drives, and he explained that he used state-of-the-art retrieval software.  The search did not obtain all responsive records, but the procedures necessary to obtain the remaining records would have required five to ten thousand dollars of additional forensic software and several additional weeks of work.

After city’s Zoning Board of Appeals affirmed city’s denial of property owners’ application for building permit to finish construction on partially constructed job that exceeded scope of previously issued permit, owners filed petition for writ of mandamus to compel city to issue permit.

The Supreme Court of Georgia held that:

• Exclusive remedy for obtaining judicial review of decision of Zoning Board of Appeals was by writ of certiorari, not writ of mandamus, and
• Owners had 30 days from date city Zoning Board of Appeals rendered decision affirming city’s denial of building permit to obtain judicial review of decision.

Families formed a committee pursuant to sections 7–1 and 7–6 of the School Code (105 ILCS 5/7–1, 7–6 (West 2010)), and filed a petition with the Regional Board of School Trustees seeking to detach 16 parcels within their subdivision (Territory) from the boundaries of Districts 58 and 99 and annex the Territory into the boundaries of Districts 53 and 86.

After an exhaustive analysis, the appeals court held that:

“In light of the evidence of the Territory’s connection to the Oak Brook community; the preference of Territory residents to attend the annexing schools; the closer distance of the annexing district’s elementary schools; the fraction of the detaching schools’ budget that would be affected by a boundary change; and the lack of effect the detachment would have on the ability of the districts to meet State standards of recognition, the Board’s conclusion that the overall benefit to the Territory and annexing districts from granting the petition clearly outweighs the resulting detriment to Districts 58 and 99 and the surrounding community is not against the manifest weight of the evidence. Therefore, we affirm the judgment of the Du Page County circuit court affirming the Board’s decision to grant the petition to detach the Territory from the boundaries of Districts 58 and 99 and annex the Territory into the boundaries of Districts 53 and 86.”

Former police officer sought review of decision of city public safety board terminating his employment for alleged excessive force and conduct unbecoming an officer.

The Court of Appeals held that city public safety board’s decision to terminate officer for use of excessive force and conduct unbecoming an officer was supported by substantial evidence.

In review of a municipal safety board’s decision, an appellate court does not conduct a de novo trial, but defers to the fact-finding of the agency, so long as the findings are supported by substantial evidence. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  Neither the trial court nor the appellate court is permitted to reweigh the evidence or reassess witness credibility.

An aggrieved party who is attacking the evidentiary support for the agency’s findings bears the burden of demonstrating that the agency’s conclusions are clearly erroneous. An arbitrary and capricious decision is one which is patently unreasonable and made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion.

Officers were dispatched to nursing home after nurse called 911 and requested assistance to transport a combative patient to a hospital.  After ordering the staff to stay away, the officers entered the room of a sixty-four-year-old Alzheimer’s patient. They found patient sitting in a chair and staring straight ahead. He was naked except for his socks. The officers commanded patient to get on a gurney but he did not comply. Rather, he began “shuffling” toward officer.

Officer applied stun gun to patient five times with a total deployment time of 31 seconds, although patient was handcuffed after third stun gun application.

Two part-time city employees filed § 1983 civil rights action against city, seeking declaratory and injunctive relief with regard to provisions of city’s personnel policy prohibiting a city employee from seeking election to or serving on city school board, and from engaging on their own time in certain political activity in regard to school board elections

The Supreme Judicial Court of Maine held that, as applied to the two employees, city’s personnel policy violated First Amendment protections of free speech.  Running for election to school board was speech involving a matter of public concern, and city failed to demonstrate an actual impact on municipal government operations that would outweigh employees’ First Amendment interest.  City could lawfully prohibit certain employees, including city manager, from running for the board, and it was best left to city officials than to Supreme Judicial Court to draw dividing line separating those employees who could lawfully be barred from running from those who could not.

Property owners brought action against Maryland National Capital Park and Planning Commission, alleging that Commission had wrongfully refused to issue addresses to homeowners, and against owners and developers of neighboring property, alleging that owners and developers had wrongfully attempted to prevent plaintiffs’ access and use of their properties, and seeing declaratory judgment that plaintiffs had an easement to use a road to access their properties.

The Court of Special Appeals held that:

• 180-day notice requirement of Local Government Tort Claims Act (LGTCA) applied to state constitutional action against Commission;
• Plaintiffs failed to show good cause to excuse notice requirement;
• Plaintiffs failed to join necessary parties, warranting dismissal of action.

A plaintiff in an action against a state agency has shown good cause to excuse compliance with the LGTCA notice requirement where the plaintiff: (1) prosecuted his or her claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances, or (2) delayed because government representatives made misleading representations to the plaintiff.

Persons eligible to vote in Minnesota, and organizations representing such persons, brought action against various Minnesota state and county officials challenging the process by which the officials confirmed the eligibility of election day registrants (EDRs), and a provision of the Minnesota Constitution denying the right of persons under guardianship to vote, as well as the sufficiency of notice afforded to such persons under certain Minnesota statutes.

The Court of Appeals held that:

• Plaintiffs failed to state a § 1983 claim challenging the Minnesota election procedure;
• Plaintiffs lacked standing to challenge provision of Minnesota Constitution denying the right of persons under guardianship to vote; and
• Plaintiffs lacked standing to challenge the adequacy of notice afforded by Minnesota’s statutory procedures for adjudicating wards’ voting rights.

Father of student filed action against school district pursuant to Mississippi Tort Claims Act (MTCA), stemming from incident in which his son was injured during altercation following school-sponsored football practice.

The Court of Appeals held that:

• School district had ministerial duty to supervise students when returning to locker room, and
• Fact issue as to whether school district breached duty precluded summary judgment.

School district had ministerial duty under statute prescribing responsibilities of school personnel and under school’s handbook to supervise students returning to locker room after football practice, and did not possess discretion to exercise judgment regarding how to supervise students.  Statute required district to maintain discipline, and handbook defined affirmative duty imposed on school personnel to supervise students at all times during extracurricular activities, stating that personnel was responsible for conduct and control of students, for which there was no exclusion for teachers or coaches of football team.

The Kansas City Downtown Streetcar Transportation Development District was formed in 2012 pursuant to the Missouri Transportation Development District Act, §§ 238.200 to 238.280.2 The Streetcar District was formed for the purpose of constructing and operating a streetcar line to run for approximately two miles along Main Street in downtown Kansas City. The construction and operation of the streetcar line is to be funded, in substantial part, by special assessments on real property located within the District, and by a sales tax, not to exceed one percent, on retail sales within the District.

Property owners within the District sued, claiming that the real-property assessments and sales taxes imposed within the District are unlawful.

The circuit court entered judgment granting the Streetcar District’s motion to dismiss.  The court held that Appellants’ challenges to the real-property special assessments were “election contests” which were untimely under § 115.577, because Appellants did not bring their claims within thirty days of the certification of the results of the election approving the special assessments. The circuit court also held that Appellants were estopped from asserting any of their claims because they should have raised their challenges in the Formation Lawsuit, prior to the elections which authorized the District’s formation and the imposition of the sales tax and real-property assessments.

Appellants received red light camera tickets from city stating that they had committed a “Violation of Public Safety (Failure to Stop at a Red Light)” in violation of a city municipal ordinance (the “Ordinance”). Appellants challenged the validity of the Ordinance in a six-count petition. Appellants alleged the Ordinance violated their due process rights and the privilege against self-incrimination, sought declaratory judgment regarding the validity and constitutionality of the Ordinance and its enforcement, and asserted a claim of civil conspiracy against city and American Traffic Solutions (“ATS”).  Claims of unjust enrichment were also asserted against city and ATS.

The appeals court reversed and remanded that portion of the trial court’s judgment declaring the Ordinance valid and dismissing because it was enacted with proper authority and is consistent with state law. Appellants pleaded that city exceeded its authority under its police power to enact the Ordinance because the purpose of the Ordinance was to raise municipal revenue and not to regulate traffic or promote safety. Whether the Ordinance is a revenue-generating scheme advanced under the guise of city’s police power is a factual question not appropriate for resolution on city’s motions to dismiss.

In addition, Appellants adequately pleaded, and the appeals court held, that the Ordinance conflicts with Missouri law because it regulates moving violations without requiring the municipal court to report the violation to the Director of Revenue as required by Missouri statute. The appeals court reversed the judgment of the trial court dismissing Appellants’ claim for declaratory judgment because the Ordinance conflicts with state statutes regulating moving violations.

With regard to Appellants’ claims relating to procedural due process, Appellants adequately pleaded that the Ordinance denied them notice, a fair hearing and adequate procedural protections as required under Missouri Supreme Court Rules and Article I, Section 10 of the Missouri Constitution. Whether the Ordinance, as enacted or applied, violated Appellants’ procedural due process rights is a factual question that is not appropriate for resolution on city’s motions to dismiss. Appellants are entitled to pursue discovery and present facts in support of their properly pleaded allegations. Accordingly, the appeals court reversed that portion of the trial court’s judgment dismissing the allegations contained in Counts I and IV relating to the denial of adequate procedural protections, notice, and fair hearing, and remand those issues to the trial court for proceedings consistent with this opinion.

Requestor brought action against board of trustees of rural fire district alleging violations of open meeting law and rights to know and participate stemming from hiring of trustee as interim fire chief.

The Supreme Court of Montana held that:

• Challenge to illegal meeting was moot;
• Capable of repetition yet evading review exception to mootness doctrine did not apply;
• Voluntary cessation exception to mootness doctrine did not apply; and
• Board complied with records request in a reasonable and timely manner.

Pursuant to the open meetings law, a governing body can remedy the illegality of the meeting without judicial involvement by making a new decision that is not based on anything from the illegal meeting. Rural fire district board of trustees’ subsequent legal meeting rendered moot challenge to legality of previous meeting pursuant to the open meetings law, where the subsequent meeting’s compliance with the open meeting and public participation laws remedied any earlier violations of those laws.

Art-house movie theater appealed decision of the Metropolitan Court finding theater guilty of criminal zoning violation after it showed one or more erotic or pornographic films during weekend-long “Pornotopia” film festival.

The District Court held that theater had committed zoning violation, rejected theater’s argument that zoning ordinances were unconstitutional as applied to it, and imposed criminal fine of $500.

The Supreme Court of New Mexico held that theater was not an “adult amusement establishment” within the meaning of zoning ordinance prohibiting adult amusement establishments in zone in which theater operated.

Although films shown during “Pornotopia” festival qualified as adult “amusement or entertainment” under ordinance, theater was not an “adult amusement establishment” in the ordinary meaning of the term.  The presumed intent of ordinance was to regulate businesses of a clearly adult nature to avoid or quarantine negative secondary effects of adult businesses, and ordinance contained no indication that it was applicable to venues that only occasionally showed pornographic films.

Michael P. Hogan submitted an application to the Hauppauge Union Free School District seeking employment as a physical education teacher. In his application, which he certified to be true and complete, Hogan failed to disclose that he had previously held a probationary teaching position with another school district. The District claims that Hogan resigned from this previous position after allegations were made that he used corporal punishment and he was told that he would not receive tenure.

The District preferred three disciplinary charges against Hogan pursuant to Education Law § 3020–a. Charge No. 1 alleged that Hogan was guilty of misconduct because he had presented an employment application to the District which was false because he knowingly omitted the fact that he had been a probationary teacher at another school district, and that Hogan presented the employment application with the knowledge or belief that it would be filed with the District. Charge No. 1 further alleged that this conduct was in violation of Penal Law § 175.30, which defines the crime of offering a false instrument for filing in the second degree.

Hogan subsequently moved to dismiss Charge No. 1, contending that it was time-barred by Education Law § 3020–a, which provides that no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct, “except when the charge is of misconduct constituting a crime when committed” (Education Law § 3020–a[1] ). The hearing officer designated as arbitrator granted Hogan’s motion, concluding that the District had failed to plead sufficient facts to establish that Hogan committed a violation of Penal Law § 175.30 by knowingly omitting his prior position as a probationary teacher from his employment application, and that the District could therefore not invoke the exception to the three-year limitations period that applies when the charged misconduct constitutes a crime. The District thereafter commenced this proceeding pursuant to CPLR article 75 and Education Law § 3020–a seeking to vacate the award dismissing Charge No. 1 on the ground that it was arbitrary and capricious, and lacked a rational basis. The Supreme Court granted the District’s petition and reinstated Charge No. 1.

The Supreme Court, Appellate Division, held that:

• Arbitration award dismissing one of three charges against applicant was a final determination subject to judicial review, and
• Arbitrator’s determination was arbitrary and capricious.

Arbitrator’s determination was arbitrary and capricious, where the charge contained allegations that applicant presented an employment application to school district which was false because he knowingly omitted fact that he had been a probationary teacher at another school district, and that he presented the employment application with knowledge or belief that it would be filed with the district.

Teacher commenced proceeding under Article 78, seeking review of school district’s determination terminating his employment.

The Supreme Court, Appellate Division, held that teacher did not acquire a tenured position by estoppel.

Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term.   In this case, teacher did not acquire a tenured position by estoppel, where he had agreed to extend his probationary period for an additional year and that additional probationary period had not expired when school district terminated his employment.

Twin City Hospital is a small rural acute care hospital located in Dennison, Tuscarawas County, Ohio. Twin City has served the community for over one hundred years.

On October 13, 2010, Twin City filed Chapter 11 Bankruptcy. The creditors of Twin City duly elected Appellant as Trustee, replacing the originally appointed Trustee. The proceeding under Chapter 11 was subsequently converted to a Chapter 7 proceeding.

Appellant subsequently filed a complaint in the U.S. Bankruptcy Court against Appellees – former board members of Twin City. Appellant asserted Appellees acted improperly by issuing approximately $17.3 million in tax exempt revenue bonds to fund new construction and renovations to Twin City and to refinance the hospital’s outstanding long term obligations while its finances were in poor condition.

The case was moved to the state court, which granted summary judgment in favor of Appellees. The trial court found Appellant had failed to establish by clear and convincing evidence any Appellee “was conscious that Board approval of the bond transaction would, in all probability, result in the failure of Twin City Hospital.”

Appellant appealed, contending that the trial court incorrectly held him to a “willful” – rather than “reckless” – standard of care, thereby requiring a higher threshold showing to overcome summary judgment. The appeals court agreed, reversing and remanding.

2009 Act No. 99 permits school district to impose an impact fee to be paid by developers on “new residential dwelling units constructed within the school district.”  The Board of Trustees of Dorchester School adopted the impact fee by resolution effective June 23, 2009.  An organization of home builders, brought a declaratory judgment suit seeking injunctive relief against the school district challenging the constitutionality of the Act under provisions of the state constitution requiring statewide uniformity (S.C. Const. art. VIII, § 14(6))1 and limiting special legislation (S.C. Const. art. III, § 34).

This case was an appeal from an order granting respondents’ motion for a judgment on the pleadings under Rule 12(c), SCRCP, and dismissing appellants’ complaint. The Supreme Court found issues of fact raised by the complaint that must be resolved before the constitutionality of 2009 Act No. 99 could be determined, it reversed and remanded for further proceedings.

Chris Hansen, a private investor, acquired land on which he proposed to develop and operate a new sports arena south of downtown Seattle. Hansen approached the city of Seattle and King County proposing that they participate in the development and ownership of the arena on his property. Last December, King County and the city signed a “Memorandum of Understanding” that contemplates the use of public funds for an arena on Hansen’s proposed site. The memorandum lays out the particulars of how the venture will be financed and operated if King County and Seattle ultimately decide to participate in it. Environmental review of the proposal as required by the State Environmental Protection Act (SEPA), chapter 43.21C RCW, is currently underway.

In this lawsuit, the International Longshore and Warehouse Union, Local 19 (ILWU), contended that by signing the memorandum before analyzing the environmental consequences of the project, the city and county had illegally stacked the deck in favor of the south Seattle location.

The trial court dismissed the suit on summary judgment and the appeals court affirmed. The memorandum did not predetermine where an arena will be built or even that an arena will be built at all. Whether the city and county will agree to Hansen’s proposal is a decision expressly reserved until after environmental review is complete. Because there has not yet been a government “action” as that term is defined by SEPA, the courts are not a forum for the union’s opposition to Hansen’s proposal.

Propane distributor brought suit against town, claiming that its rights under the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment were violated when the town denied it certain zoning permits and issued a Cease and Desist Order requiring it to halt its wholesaling of propane.

The court concluded that propane distributor had failed to adduce sufficient evidence from which a rational juror could conclude that the actions of the defendants amounted to a violations of its rights under the Constitution of the United States.

Mobile phone service provider brought action claiming that city’s denial of its cell phone tower use permit applications violated the writing requirement of the Telecommunications Act (TCA). The United States District Court for the Northern District of Georgia ruled that the city violated the TCA and permanently enjoined it from denying phone service provider’s applications. City appealed.

The Court of Appeals held that:

• TCA provision requiring cell phone tower construction permit application denials to be in writing does not require decision to be in a separate writing, and
• City council hearing transcripts, letters, and hearing minutes pertaining to denial of mobile phone service provider’s cell phone tower use permit applications satisfied TCA writing requirement for application denials.

Under TCA provision requiring state or local government’s denial of cell phone tower construction permit application to be in writing and supported by substantial evidence, there must be reasons for the denial that can be gleaned from the denial itself or from the written record.  Provision neither expresses nor implies any requirement that the reasons for denial must be stated in the letter or some other document that announces the decision, if there is a separate document doing that, or prohibit having the reasons stated only in the hearing transcript or minutes.

TCA provision requiring state or local government’s denial of cell phone tower construction permit application to be in writing and supported by substantial evidence does not require decision to be in a separate writing, a writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held, or a single writing that itself contains all of the grounds and explanations for the decision.  To the extent that the decision must contain grounds or reasons or explanations, it is sufficient if those are contained in a different written document or documents that the applicant can access, and all of the written documents should be considered collectively in deciding if the decision is in writing.

Planning commission and city council hearing transcripts, and city council letters and hearing minutes, pertaining to city’s denial of mobile phone service provider’s cell phone tower use permit applications, were sufficient to satisfy TCA requirement that application denials be in writing, even though denial was not announced or explained in a separate document. Hearing transcripts included recommendations and reasons for decisions, letters notified service provider of decisions on applications, hearing minutes recounted all of the reasons for decisions, and service provider had access to all of the documents before its deadline for filing its lawsuit.

Pursuant to the Illinois School Code (School Code) (105 ILCS 5/1–1 et seq.), parents filed a petition with the Regional Board of School Trustees of Du Page County (the Board) for detachment. The petitioners sought to detach the Timber Trails area from Districts 48 and 88 and have the area annexed into Butler School District 53 (District 53) and Hinsdale Central High School District 86 (District 86).

A dispute ensued regarding the validity of the signatures gathered in support of the annexation.

The appeals court set out the requirement for valid signatures, stating:

“We therefore turn to a consideration of the signatures that the petitioners submitted in support of their detachment petition. We note that there is a dearth of Illinois law on the subject of how such signatures should be analyzed. However, in considering existing Illinois law as well as foreign authorities, certain standards emerge. Substantial compliance will be found if the signature transposes the first name and middle initial (Board of Education of Wapella Community Unit School District No. 5 v. Regional Board of School Trustees, 247 Ill.App.3d 555, 560 (1993)), if the middle initial is omitted (People ex rel. Owen v. Dunn, 247 Ill. 410, 413 (1910)), if a suffix, such as Junior, is omitted (Morton v. State Officers Electoral Board, 311 Ill.App.3d 982, 985 (2000)), or if a common shortened version of a first name (such as Ray) is used instead of the full first name (such as Raymond) (Bonardo v. People, 182 Ill. 411, 424 (1899); In re Nomination Petition of Gales, 54 A.3d 855, 859 (Pa.2012)). Substantial compliance will not be found if one uses an initial for a first or last name. In re Nomination Petition of Flahery, 770 A.2d 327, 332 (Pa.2001). Similarly, if using an initial instead of a full first name is not substantial compliance, then omitting a first or last name completely is not substantial compliance. See id. Further, substantial compliance will not be found if the signature is printed rather than in cursive as it appears on the corresponding registration form. State ex rel. Rogers v. Taft, 594 N.E.2d 576, 579 (Ohio 1992).”

Following unsuccessful appeal to Attorney General, newspaper brought action against city under Open Records Act (ORA), challenging city’s denial of newspaper’s request to inspect and copy entire police file generated during homicide investigation.

The Supreme Court of Kentucky held that:

• Law-enforcement exemption under ORA is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record’s content, its release poses a concrete risk of harm to the agency in the prospective enforcement action; and
• Mere fact that a law-enforcement action remains prospective is not enough to establish that disclosure of anything from a law enforcement file constitutes “harm” under law-enforcement exemption, overruling Skaggs v. Redford, 844 S.W.2d 389; but
• Trial court did not abuse its discretion in denying newspaper’s request for attorney fees and costs.

Even if an agency, in response to an ORA, adopts the approach of identifying the generic kinds of documents for which the law-enforcement exemption is claimed, and the generic risks posed by disclosure of these categories of documents, agency must identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories.  A category is meaningful if it allows the court to trace a rational link between the nature of the document and the alleged likely harm to the agency.

An agency asserting the law-enforcement exemption in an action under ORA should provide the requesting party and the court with sufficient information about the nature of the withheld record, or the categories of withheld records, and the harm that would result from release of record to permit the requester to dispute the claim and the court to assess it.  If disclosure even to that limited extent would defeat the exemption, then in camera inspection may be necessary, but those cases should be the exception.

Former city police officer appealed decision of city police commissioner, terminating her employment after officer married a convicted murderer and prison gang member. The Circuit Court upheld officer’s termination, and officer appealed.

The Court of Special Appeals held that:

• Rational basis scrutiny applied to officer’s First Amendment challenge to regulation prohibiting officers from associating with persons of questionable character;
• Regulation was rationally related to legitimate city interest; and
• Substantial evidence showed that officer violated regulation.

Real property owners filed claims of negligence and inverse condemnation against state to recover for damage to their property allegedly resulting from procedures used by state to contain wildland fire. The District Court entered judgment on jury verdict awarding owners $730,000 in damages on negligence claim and denied owners’ posttrial motion for discovery sanctions. Both sides appealed.

The Supreme Court of Montana held that:

• Statement in owners’ trial brief, that it was a reasonable and necessary decision for state to let wildland fire move across owners’ property to flatter, more defensible space, did not constitute a judicial admission with respect to negligence claim;
• District court did not abuse its discretion in striking a defense under public duty doctrine that state first raised in its trial brief, filed three weeks before trial; and
• Trial court did not abuse its discretion in denying owners’ posttrial motion for sanctions.

A public benefit corporation (Issuer) issued and sold $200,177,680 in municipal bonds to finance the extension of a toll road in Greenville, South Carolina (original bonds).  Under the trust agreement if the issuer files a voluntary petition in bankruptcy, it is an event of default which entitles a bond holder to pursue all its legal remedies.

Defendant, a financial guaranty insurance company, issued a number of secondary market insurance policies to guaranty the issuer’s timely payment of obligations under certain of the original bonds. The individual policies were evidenced by certificates of bond insurance (CBIs) which “wrapped” the particular bond defendant was insuring.

The CBIs were “noncancellable except in the event the holder or the Owner surrenders its interest in the Certificate of Bond Insurance or in the position … and waives its rights to receive payment from the Insurer under this policy pursuant to Sections 3.03(f)1 and 4.06(b) of the Custody Agreement.”

The toll revenues received by the issuer were substantially less than projected and, on January 1, 2010, the issuer defaulted in making payments on certain of the outstanding original bonds, none of which were owned by plaintiffs. On June 24, 2010, however, the issuer filed for Chapter 9 bankruptcy protection, which allows insolvent municipalities to reorganize their debts. Defendant was listed in the petition as one of the creditors holding twenty (20) of the largest unsecured debts. It was a “special notice” party and filed a proof of claim on its own behalf.

The bankruptcy filing had the effect of accelerating the claims on the original bonds. The CBIs, however, had no parallel acceleration requirement, except at the sole option of defendant, which it did not exercise.

As part of the bankruptcy, the issuer’s bond offering was restructured. The restructuring plan called for a mandatory exchange of the original bonds for new bonds and the consequent cancellation of the original bonds.

Defendant acknowledged that it would have been contractually obligated to pay for any loss suffered by plaintiffs under the original bonds when they matured, in the event of the issuer’s bankruptcy, but it claims that as a result of the restructuring plan that was adopted, the original bonds were cancelled, completely relieving it of any obligation to pay under the CBIs.

Bond holders brought action against insurer, seeking declaration that insurer was still obligated to pay in the event that issuer defaulted.  The appeals court agreed, finding insurer’s position inconsistent with the terms of the policies and contrary to law.

In two related actions, school bus driver and monitor on that bus brought action against town, driver and owner of colliding vehicle, and owners of property that was alleged source of icy road conditions, seeking to recover damages for personal injuries allegedly sustained in motor vehicle accident.

The Supreme Court, Appellate Division, held that:

• Fact issue existed as to whether water from property owners’ land contributed to icy condition;
• Driver and owner of colliding vehicle established prima facie entitlement to judgment as matter of law; and
• Fact issues existed as to whether town contributed to icy condition.

Private landowner may be liable for injuries sustained in a car accident that is proximately caused by an ice condition occurring on an abutting public roadway, where that ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway.

Driver and owner of colliding vehicle, moving for summary judgment in personal injury suit of school bus monitor, seeking to recover damages for personal injuries allegedly sustained in motor vehicle accident, established prima facie entitlement to judgment as matter of law by providing competent medical evidence that monitor’s alleged lumbar injuries did not constitute serious injury within meaning of no-fault automobile insurance law and pointing to monitor’s own testimony that accident caused her to lose only about one week of work.

Genuine issues of material fact existed as to whether town affirmatively created icy road condition through its own negligence, and whether town’s negligence at time road was repaired immediately resulted in existence of the hazardous condition, precluding summary judgment in school bus driver’s and monitor’s suit against town.

The Town of Midland condemned a portion of a planned subdivision for an easement in which to construct a natural gas pipeline and a fiber optic line.

A contractor employed by the Town drove vehicles and equipment and maintained construction staging areas on portions of the subdivision outside of the easement for a period of time during construction.

Defendant filed a counterclaim for inverse condemnation, claiming that: a) the contractor’s actions constituted a temporary taking of portions of the subdivision; and b) the Town had inversely condemned its entire tract by adversely impacting its rights to develop it in accordance with the previously-approved subdivision plan.

The appeals court held that: a) the trial court did not err in ruling there was an inverse taking with regard the parking of construction vehicles and the temporary construction of a road on the property outside of the assessment condemned by the Town’s contractor; and b) the trial court erred in concluding that there was a regulatory taking of the property in its entirety.

Student and her mother brought action against school district, alleging violations of the Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act (RA), and the Americans with Disabilities Act (ADA), contending that the school district misdiagnosed student as disabled for several years.

As matters of first impression, the Court of Appeals held that:

• IDEA did not create a cause of action for children misidentified as being disabled;
• Claims for compensatory damages under the RA and the ADA required a finding of intentional discrimination;
• Showing of deliberate indifference could satisfy the intentional discrimination element of a claim for compensatory damages under the RA and the ADA; and
• Plaintiffs failed to establish school district’s deliberate indifference to student being misidentified as having a learning disability.

This case concerned the constitutionality of a home-rule city’s ordinance which purported to regulate air pollution within that city’s borders. The BCCA Appeal Group, Inc. (the Group), a non-profit organization whose members own and operate industrial facilities in the Houston area, brought suit to enjoin enforcement of two air pollution control ordinances enacted by the City of Houston (the City)—City of Houston Ordinance Nos.2007–208 and 2008–414 (collectively, the Ordinance).

The Group asserted that the Ordinance was preempted because it claimed for the City several powers the Legislature granted exclusively to the Texas Commission on Environmental Quality (TCEQ) in the Texas Clean Air Act (TCAA) and the provisions of the Texas Water Code (TWC) that govern enforcement of the TCAA. According to the Group, the Ordinance conflicted with the TCAA, TWC, and Article XI, Section 5 of the Texas Constitution which bars home-rule cities from enacting any ordinance that is “inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

The Ordinance requires facilities to register with the City by filing an application and paying the applicable registration fee.  It is unlawful to operate a facility within the City’s boundaries that is not registered with the City. The Group argues that these sections are not only inconsistent with state law, but also make unlawful a condition or act approved or authorized under state law.

The Group argued that a facility’s lawful operation pursuant to TCEQ’s rules and orders would nonetheless be unlawful under the Ordinance, if that facility failed to register with the City or pay a registration fee.  Thus, according to the Group, the entire registration program created by the ordinance is preempted. If the Group is correct, then any concurrent regulatory scheme or permitting process by a municipality would be preempted. This does not appear to be the prevailing law in Texas.

In this case, the City was not attempting to hold an affected industry to a higher, more onerous standard than the one set forth by the state. On the contrary, the Ordinance was the City’s attempt to create a concurrent regulatory scheme or permitting process through which it will enforce the state’s existing rules and regulations. In fact, the City acknowledged that its decision to regulate and enforce the TCAA and TCEQ rules and regulations on its own in this case—rather than in cooperation with TCEQ—is due to what it perceives to be TCEQ’s lax enforcement efforts. According to the City, the Group is only challenging the constitutionality of the Ordinance because the industry “currently enjoys what it perceives to be a permissive regulatory approach from the TCEQ” and it fears regulation by “a vigilant watch dog” (i.e., the City).

The court concluded that the Group failed to show that the Legislature intended to preempt the Ordinance with “unmistakable clarity,” and thus, failed to meet its extraordinary burden to establish that the ordinance is invalid.

Appearing pro se, Plaintiffs filed a complaint raising several constitutional claims and several state law claims relating to city’s enforcement of certain municipal ordinances governing property maintenance.  In particular, Plaintiffs alleged that the city ordered discontinuation of electrical service at a home owned by Plaintiffs in violation of substantive and procedural due process, and that the city’s adoption of the Vacant Building Ordinance gives the city “arbitrary and discriminatory power to limit a property owner’s use of his or her property.”  Plaintiffs also alleged that criminal proceedings initiated by the city against Plaintiffs pursuant to the same municipal ordinances constituted the torts of malicious prosecution and abuse of process, and that city’s actions against Plaintiffs constituted both intentional infliction of emotional distress and civil conspiracy.

The court disagreed, granting city’s motion to dismiss.

Motorist filed negligence action against employee of Texas Adjutant General’s Office (TAGO), seeking recovery for injuries sustained in collision with vehicle driven by employee. Employee filed motion to dismiss under election-of-remedies provision of Texas Tort Claims Act (TTCA), and motorist filed amended petition adding TAGO as a defendant.

The Supreme Court of Texas held that:

• Consent of a governmental unit to suit, under provision of Texas Tort Claims Act (TTCA) stating that the filing of a suit against any employee of a governmental unit constitutes an irrevocable election and immediately and forever bars any suit by plaintiff against governmental unit regarding same subject matter unless governmental unit consents, is not limited to statutory waivers of immunity found outside the TTCA itself, abrogating City of Houston v. Esparza, 369 S.W.3d 238;
• A suit against governmental employee in his official capacity does not trigger the bar contained in election-of-remedies provision to subsequent suits against governmental unit regarding same subject matter; and
• Motorist, in filing amended petition adding TAGO as defendant in response to TAGO employee’s motion to dismiss, was not required to also dismiss employee before proceeding against TAGO as sole defendant.

More than ninety property owners filed a lawsuit against the Port of Houston Authority, alleging that its negligent operation of a container terminal along the Bayport Ship Channel constituted a nuisance that interfered with the use and enjoyment of their property and violated a municipal noise-control ordinance.

The Port Authority filed a plea to the jurisdiction, seeking dismissal based on governmental immunity.

The court of appeals held that the property owners’ claims did not fall within the scope of the limited waiver of governmental immunity stated in the Texas Tort Claims Act, and rendered judgment dismissing the property owners’ claims.

Residential subdivision developer brought claims against city for declaratory judgment and inverse condemnation, relating to city’s moratorium on permits for sewer connections.

The Supreme Court of Texas  held that:

• Developer was not required to submit sewer connection application before filing lawsuit;
• Property approved for subdivision is exempt from any development moratorium based on shortages of public facilities; and
• Fact issue precluded summary judgment on inverse condemnation claim.

City ordinance providing that applications for new sewer connections are not to be accepted for filing and are to be returned to the applicant as unfiled does not impose a requirement that a landowner aggrieved by the ordinance file an application to administratively exhaust the landowner’s claim.  Rather, it is a process by which the City will return any applications to the owner as unfiled.

Under city ordinance providing that applications for new sewer connections were not to be accepted for filing and were to be returned to the applicant as unfiled, developer was not required to submit a sewer connection application before filing its inverse condemnation and declaratory judgment action based on state law prohibiting municipalities from enforcing moratoria against approved development, since such attempted filing would be futile.

Because state law prohibiting municipalities from enforcing development moratoria resulting from shortages of essential public facilities against approved development defines “development” as subdivision or construction, such a moratorium may not affect property approved for subdivision or construction. A property need not be approved for both the subdivision and construction aspects of development to be insulated from such moratoria.

Genuine issue of material fact existed as to the extent of city’s intrusion on subdivision developer’s use and enjoyment of its property with a sewer connection moratorium which violated state law prohibiting municipalities from enforcing moratoria against approved development, thus precluding summary judgment for city on developer’s inverse condemnation claim.

City residents brought action challenging proposed language for referendum ballot title, asserting three challenges to the language: (1) the language failed to give a true and impartial statement of the purpose of the measure by failing to mention UTOPIA, a city-owned telecommunications network, (2) the title created an argument for the measure by minimizing the perceived burden on businesses, and (3) the wording was otherwise “unsatisfactory” in that it sought to hide from the voters the causal connection between the UTOPIA bond obligation and the requested tax rate increase.

The Supreme Court of Utah held that:

• Supreme Court’s review of a referendum ballot title encompasses requirements that the ballot title gives a true and impartial statement of the purpose of the measure, that the ballot title not exceed 100 words in length, and that the ballot title be submitted by the stated deadline; abrogating Walker v. Weber County, 973 P.2d 927, and
• Content of title satisfied requirement to present a true and impartial statement of purpose of resolution.

The former Anchorage Municipal Code provided for the creation of special assessment districts for public capital improvements. In 1996, the Anchorage Municipal Assembly (Assembly) enacted Anchorage Ordinance 96–77(S–I) to broaden “special assessment districts” to include the provision of services and to authorize business improvement districts. In 1997 the Assembly passed Anchorage Ordinance 97–51, which created the Downtown Improvement District (District) for a period of three years.

When passing this ordinance, the Assembly amended the boundaries of the proposed District to exclude some properties on K and L Streets. The building at 420 L Street, the property owned by appellant L Street Investments, was in the original proposal but subsequently carved out by the Assembly.

In 2000 the Assembly extended the life of the District for ten years. Beginning in 2009, the Anchorage Downtown Partnership canvassed businesses hoping to extend the life of the District again and expand the District to include businesses between I and L Street.

After the majority of business owners in the proposed District approved the extension and expansion, the Assembly extended the life of the District and expanded it to include businesses between I and L Streets, including the building at 420 L Street.

L Street Investments filed a complaint arguing: (1) Section 9.02(a) of the Municipality of Anchorage’s Charter does not authorize the Municipality to finance services within the District by an assessment—rather, the Municipality can finance services only by a tax levy; and (2) the District is a “service area,” and AS 29 .35.450(c) prohibits the expansion of a service area unless a majority of voters in the area to be added vote in favor of expanding the service area. The Anchorage Downtown Partnership intervened, and all parties filed cross-motions for summary judgment.

The Supreme Court of Alaska concluded that Section 9.02(a) does not preclude the Municipality from levying an assessment for services because the language in Section 9.02(a) is permissive rather than mandatory, and does not expressly prohibit the Municipality from using an assessment to finance services. The Municipality, as a unified home rule municipality, enjoys broad authority to exercise all legislative powers not prohibited by law or Charter.22 The use of assessments to finance services is not prohibited by law or Charter and is therefore a valid exercise of the Municipality’s authority.

As the superior court stated, the legislative history of AS 29.35 .450 shows that the legislature was focused on specific types of service areas. It does not suggest that the legislature either contemplated or intended to impose the voting requirements of AS 29.35.450(c) on a business improvement district that does not primarily provide road, fire, or park and recreation services, but may provide some services in those areas. Neither the plain language nor the legislative history of AS 29.35.450 indicates that the District is a service area subject to its terms. Accordingly, the Supreme Court of Alaska held that the District was not a service area subject to the voting requirements of AS 29.35.450.

Roxana is a small village in Madison County, Illinois that was formed around a petroleum refinery operated by Shell. Roxana was for many years a company town so that the city park is named “Shell Park” and the high school athletic teams are known as the Roxana “Shells.” The Illinois Environmental Protection Agency (IEPA) forced Shell to take measures to remediate the pollution coming from its refinery that threaten surrounding soil and groundwater.

Roxana then brough an action to enforce its own municipal nuisance ordinance against Shell.  Roxana started this action by filing 230 separate cases in state court. The complaint in each case described a separate property located within Roxana that was alleged to be contaminated by pollutants from the Shell refinery. Shell removed all 230 cases based on diversity of citizenship once they were consolidated. Roxana’s claims are based on an ordinance adopted in 1932 which makes it unlawful “to place, deposit, throw, leave or permit to remain, or to cause or permit to flow, any liquid, slops, animal or vegetable matter, filth, dirt or rubbish, or substance of any kind likely to become rotten, foul, nauseous, putrid or offensive” on any property or water in Roxana.

Shell argued that the ordinance did not cover petroleum byproducts that are “valuable commodities that its owner takes precautions to safeguard.”  This is a question of law that the parties agree is to be decided by Illinois rules of construction, as if the ordinance were a statute. The court disagreed with Shell, finding that the ordinance applied to the facts as alleged.

Roxana is a non-home rule municipality and as such may only exercise those powers enumerated in the Illinois Constitution or by implication conferred by a state statute. If a non-home rule municipality enacts an ordinance conflicts “with the spirit and purpose of a state statute,” that ordinance is preempted by the statute.  So, if Roxana’s ordinance conflicted with an IEPA permit or consent order entered pursuant to the Act, it must give way as preempted. The narrow question here was whether the Roxana ordinance conflicted with a 1989 IEPA permit that was renewed in 2010 or with a 1998 consent order. The court concluded that there existed no conflict.

Shell’s motion for summary judgment was denied.

After he was injured in an automobile accident, plaintiff cooperated with the other driver’s insurer in hopes of settling his claim. Nearly a year later, when settlement proved elusive, he hired a lawyer and filed suit. Only then did he learn that the other driver was employed by a political subdivision subject to the Indiana Tort Claims Act. Plaintiff cited several reasons to excuse his failure to comply with the notice requirements of that Act, including waiver, substantial compliance, agency, and estoppel. The court found the first three unavailing, but concluded he should be permitted to present proof of estoppel to the trial court, and the court reversed and remanded on that basis.

In addition, the Supreme Court of Indiana held that:

• Agency’s amendment of responsive pleading did not prejudice motorist;
• Notice to agency’s insurer did not constitute substantial compliance with notice requirement of Indiana Tort Claims Act (ITCA);
• Liability insurer of agency was not agent for purposes of notice requirement; but
• Genuine issue of material fact existed regarding whether agency should have been estopped from asserting notice requirement as defense.

The crucial consideration when determining whether there has been substantial compliance with statutory notice requirement of the ITCA is whether the notice supplied by the claimant of his intent to take legal action contains sufficient information for the city to ascertain the full nature of the claim against it so that it can determine its liability and prepare a defense.

Genuine issue of material fact existed regarding whether designated community action agency should have been equitably estopped from asserting defense of motorist’s failure to comply with notice requirement of ITCA in personal injury action against agency, and therefore summary judgment in favor of agency based upon failure to comply with notice requirement was precluded.  Motorist presented evidence that he was not aware that agency was a statutorily designated community action program and thus a political subdivision, neither agency not its insurer ever mentioned the ITCA or the notice requirement to motorist, and there was evidence that insurer’s agent told motorist it was in his best interest to wait until completion of medical treatment before asserting claim.

The City of Atchison (City) appealed the district court’s decision setting aside its ordinance establishing the annexation of Bunge Milling, Inc.’s (Bunge) property under K.S.A. 12–520(a)(1). The City argued that Midland Surveying (Midland) acted as Bunge’s agent when Midland filed a boundary survey of Bunge’s property with the register of deeds. As the City would only have had the authority to annex Bunge’s property if the owners had filed the survey under K.S.A. 12–519(e), the filing of a boundary survey by Bunge’s agent would meet this requirement. Bunge argued its property was not subject to annexation because Midland was not its agent for the purpose of filing the survey.

The appeals court agreed with the district court that Midland was not acting as Bunge’s agent when it filed a boundary survey of Bunge’s property with the register of deeds, meaning that the survey had not been filed by the “owner” of such tract.

Historic preservation group appealed city’s decision to approve church’s application to build parking lot on registered historic site owned by church. The District Court set aside the city’s decision as arbitrary, capricious, and unreasonable. Church and city appealed. The Court of Appeals reversed district court’s judgment and remanded case with directions. Preservation group petitioned for review.

The Supreme Court of Kansas held that:

• Individual owners of property located within 500 feet of historic site were “persons aggrieved” by city’s issuance of permit, and, therefore, had standing under Historic Preservation Act to seek judicial review;
• Historic preservation group met traditional test for associational standing to seek judicial review of city’s decision to issue permit;
• City council failed to take “hard look” at all relevant factors in regard to possible alternatives, as required under caselaw interpreting Historic Preservation Act, before issuing permit; and
• As matter of first impression, governing body is required, before issuing permit for a project which will encroach upon, damage or destroy historic property, to establish that no feasible and prudent alternatives exist and that all possible planning has been done to minimize harm to the historic property; overruling Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948.

Challenger to constitutionality of a statutory protest provision, under which group of property owners barred board of county commissioners from establishing special zoning district in which gravel mining and asphalt operations would be prohibited, filed complaint against board for declaratory and injunctive relief. Landowners intervened. The District Court denied landowners’ motion to dismiss and granted summary judgment to challenger and to board, which agreed with challenger that statute was unconstitutional. Landowners appealed.

The Supreme Court of Montana held that:

• Property owners were necessary parties to declaratory judgment action, but challenger’s failure to name them as parties was remedied by their timely intervention;
• Protest provision, which allowed property owners representing 50 percent of the agricultural and forest land in a zoning district to block zoning proposals, was an unconstitutional delegation of legislative power that violated due process guarantees in federal and state constitutions; and
• Invalid protest provision was severable from remainder of statute setting forth procedures to be followed by board of county commissioners in adopting zoning regulations.

Provision in zoning statute that allowed property owners representing 50 percent of the agricultural and forest land in a zoning district to block zoning proposals, and to prevent county commissioners from even proposing an alternative zoning resolution for a period of one year, was an unconstitutional delegation of legislative power that violated due process guarantees in federal and state constitutions. Protest provision provided no standards or guidelines to inform the exercise of the delegated power, and it contained no legislative bypass providing for review by a legislative body with the power to consider exceptional cases.

Plaintiffs were the owners of 31 acres of land in the Township of Ocean. Plaintiffs challenged the enactment of Township ordinances that rezoned the subject property from residential (R–2) and highway commercial (C–3) to an EC Environmental Conservation District (EC Zone).

The appeals court concluded that these ordinances were invalid as applied to plaintiffs’ property because the downzoning was not required to serve the stated purposes of the ordinances and did not reflect reasonable consideration of existing development in the areas where the subject property was located.

Plaintiff appealed from a decision of the Law Division that dismissed his claim that defendant Atlantic City Alliance, Inc. (ACA) is a “public agency” subject to the provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A–1 to –13 and the common law right of access to public records.

In 2011, the Legislature enacted, and the Governor signed, L. 2011, c. 18, now codified as N.J.S.A. 5:12–218 to –233. The purpose of the legislation was to revive and enhance Atlantic City’s tourism and gaming industries through the creation of the Atlantic City Tourism District. N.J.S.A. 5:12–219a(1). The District would be managed by the Casino Reinvestment Development Authority (CRDA). N.J.S.A. 5:12–219b.

After the legislation was enacted, five casinos formed ACA as a private, not-for-profit corporation. On November 2, 2011, ACA and CRDA entered into a “Public–Private Agreement for Marketing Atlantic City” (the Agreement) as envisioned by N.J.S.A. 5:12–221a.

Plaintiff sent a letter to ACA’s president requesting that ACA produce certain “government records in accordance with [OPRA] and the common law right of access.” Among other things, he asked for copies of the contracts between ACA and certain of its employees, e-mails exchanged between these individuals, ACA’s by-laws, and its certificate of incorporation.  ACA’s president advised plaintiff that ACA was not a “public agency” under OPRA and, therefore, ACA would not produce any of its records in response to plaintiff’s request.

Plaintiff sued.  After reviewing the provision in light of the Legislature’s intent, the court concluded that the ACA is not “public agency” subject to OPRA or the common law right of access to public records.  The appeals court affirmed.

Father of high school student who was attacked by another student on an athletic field owned by school district brought action to recover damages for personal injuries, alleging district’s failure to provide adequate security and to lock access gates constituted negligence.

The Supreme Court, Appellate Division, held that:

• School district did not have duty to protect student who was attacked on athletic field after school hours, and
• School district’s failure to lock gates to athletic field was not the proximate cause of student’s injuries.

School district did not have duty to protect student who was on athletic field at night, and thus was not liable for injuries student incurred when he was attacked by another student; district did not make direct assurances regarding security to student and student did not rely on the provision of security in deciding to congregate with others on the field.

School district’s failure to lock gates accessing athletic field upon which student was attacked was not the proximate cause of the student’s injuries, as required to support a claim of negligence against school district based on acts performed in a proprietary capacity, since the assault was not a foreseeable act of failing to lock the gates.

Attorney General brought enforcement action against registered securities broker-dealer, alleging broker-dealer engaged in fraudulent and deceptive conduct in the sale of auction rate securities (ARS) to the investing public. Broker-dealer moved to dismiss for failure to state a claim. The Supreme Court  granted motion. Attorney General appealed.

The Supreme Court, Appellate Division, held that:

• Attorney General sufficiently stated a claim under Martin Act, and
• Attorney General sufficiently pled a nexus with New York, as required to state claims under Martin Act.

Attorney General’s allegation, in enforcement action, that brokers, employees and managers of registered securities broker-dealer misled customers by variously representing ARS as “safe, low risk, highly liquid investments, or cash management alternatives, or similar to money market funds” without disclosing that the liquidity of these instruments was dependent on the successful operation of the Dutch auctions, was sufficient to state claims under Martin Act.

Attorney General’s allegation, in enforcement action, that ARS sold by registered securities broker-dealer to its customers were underwritten and/or managed by New York-based financial institutions, that broker-dealer transmitted its customers’ buy, sell and hold orders to the trading desks of financial institutions located in New York and that the substantial majority of the auctions of the ARS were held in New York, sufficiently pled a nexus with New York, as required to state claims under the Martin Act, regardless of some of the customers were not residents of New York.

Nonhomestead property owner sued city to obtain refund of tax overpayments, alleging claims for money had and received, unjust enrichment, for declaratory relief, and for imposition of a constructive trust upon the overpayments. The Supreme Court granted city’s motion to dismiss for failure to serve a timely notice of claim. Owner appealed.

The Supreme Court, Appellate Division, held that:

• Dismissal was not warranted on basis that owner’s cause of action was barred by applicable statute of limitations, and
• Owner was not required to allege that it paid disputed taxes under protest to obtain a refund.

Generally, there can be no recovery of taxes paid unless the payments were made involuntarily, that is, under protest or duress.  However, nonhomestead property owner was not required to allege that it paid disputed taxes under protest, to obtain refund of alleged tax overpayments from city, where owner alleged that it made the tax payments under a mistake of fact because it was unaware that city had miscalculated tax rates applied to homestead and nonhomestead properties and without knowledge that the miscalculation resulted in an incorrect apportionment between homestead and nonhomestead properties and excessive taxes for a number of years.

In plaintiffs’ medical malpractice and wrongful death action against fire department, the Supreme Court granted department’s motion to dismiss for failing to serve timely notice of claim. Plaintiffs appealed.

The Supreme Court, Appellate Division, held that the Supreme Court providently exercised its discretion in denying plaintiffs’ application for leave to serve a late notice of claim.

No proposed notice of claim was submitted with plaintiffs’ cross motion for leave to serve a late notice of claim.  Plaintiffs’ unsubstantiated claim of law office failure by their former attorney was not a reasonable excuse for their failure to serve a timely notice of claim.  Fire department’s presence at the accident did not establish department was aware of facts constituting the plaintiffs’ claims.  Plaintiffs failed to demonstrate that the more-than-one-year delay would not substantially prejudice department.

Town brought action in state court against owners of oceanfront cottage, seeking to enforce land-use ordinances and seeking an order of abatement and civil penalties. Action was removed to federal court, and owners filed multiple counterclaims. Town moved to dismiss, owners moved for partial summary judgment, and town moved for leave to file motion for summary judgment. The United States District Court for the Eastern District of North Carolina, James C. Dever III, Chief District Judge, 863 F.Supp.2d 516, abstained from deciding case and declined federal jurisdiction. Owners appealed.

The Court of Appeals held that:

• Federal court was not required to abstain under Burford doctrine from resolving owners’ claims for declaratory relief concerning town’s authority to ratify and enforce ordinance;
• District court was not required to abstain from deciding cottage owners’ claim against town under § 1983 alleging due process and equal protection violations; and
• Court of Appeals would suspend state-litigation requirement for owners’ takings claim in interest of fairness and judicial economy.

Because North Carolina has no mechanism for the federal courts to certify questions of state law to its Supreme Court, the federal courts must follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently.

District court was not required to abstain under Burford doctrine from deciding cottage owners’ claim against town under § 1983 alleging due process and equal protection violations. Although constitutional claim intersected with town’s land use and zoning laws, court was not required to define geographical reach of public trust doctrine to resolve constitutional claim.

Washington Court House School District (WCH) and Miami Trace School District (Miami Trace) reached an agreement regarding land transfer requests from persons who owned property within Miami Trace and wished to have it annexed into WCH.  Miami Trace agreed to transfer properties to WCH in exchange for WCH’s agreeing to pay Miami Trace 30 percent of the “net tax gain generated by the transfers.”  Four properties were transferred.

At the time the parties entered their transfer agreements, WCH only had an operating levy; it did not have a permanent improvement levy and had not passed a bond issue. After the last of the four agreements between the parties was reached in September 2001, WCH passed its first permanent improvement levy in 2002 and its first bond issue in 2005. WCH never made a payment to Miami Trace under any of the four agreements.

In 2010, Miami Trace, while working on an unrelated land transfer request, reviewed the four land transfer agreements with WCH and concluded that WCH owed a substantial amount of money under the terms of those agreements. Miami Trace arrived at this conclusion by interpreting the parties’ agreements to mean that the 30–percent–payment provision in the parties’ four agreements applies to the funds WCH receives from its permanent levy and bond issue, as well as its operating levy. However, when Miami Trace sought payment from WCH for these amounts, WCH refused on the ground that the 30–percent–payment provision applies only to the funds it receives from its operating levy.

In 2012, the trial court found that Miami Trace was entitled to prevail, and awarded $94,213.36, because “[t]he clear and unambiguous language of all four agreements is that ‘gross amount of taxes collected’ includes operating levies, permanent levies and bond issues.”

The appeals court reversed.  “The spirit of these agreements is to compensate Miami Trace for any ‘lost tax revenue’ generated by the transfers. The parties’ four agreements expressly limit the term ‘net tax gain’ to those that are ‘generated by the transfers’ in question. However, Miami Trace could not have any ‘lost tax revenue’ ‘generated by the transfers’ from taxes that did not exist at the time of the agreements. WCH’s permanent improvement levy and bond issue do not fall within the term ‘gross amount of taxes collected’ because the permanent improvement levy and bond issue did not exist when these agreements were executed. The four land transfers in question were completed in 1993, 1996 and two more in 2001. WCH’s permanent improvement levy was not passed until 2002 and its bond issue was not passed until 2005.”

The court concluded that the trial court erred in determining that the 30–percent–payment provision applied to WCH’s subsequently enacted permanent improvement levy and bond issue. It therefore modify the trial court’s judgment by reducing the award granted to Miami Trace from $94,213.36 to $5,839.42.

Natural gas customer filed complaint with Public Utilities Commission against gas utility, alleging that utility had demanded major structural retrofitting of the ventilation system to gas appliances in customer’s 240-unit apartment complex, and requesting that utility be prohibited from terminating service. The Public Utilities Commission entered order in favor of customer, and utility appealed.

The Supreme Court of Ohio held that:

• Evidence supported finding that customer’s current appliances were safe;
• Commission provided sufficiently clear guidance to utility; and
• Order did impose undue burden on utility.

Public Utilities Commission could prohibit natural gas utility from threatening to shut off gas service to customer’s 240-unit apartment complex to compel customer to retrofit each apartment to conform to current fuel gas standards of national trade association, since evidence supported finding that customer’s current appliances were safe under Ohio Building Code, Ohio Mechanical Code, and local building codes; customer’s experts testified that state and local codes allowed for the type of ventilation installed at complex and that the gas appliances received a sufficient supply of air for combustion, ventilation, and dilution of gases.

Public Utilities Commission, in order prohibiting natural gas utility from threatening to shut off gas service to customer’s 240-unit complex to compel customer to retrofit each apartment to conform to current fuel gas standards of national trade association, provided sufficiently clear guidance as to how utility could apply trade association standards in other existing residential structures. Commission determined that strict adherence to the standards was not required that compliance cannot be compelled if it was economically or practically unreasonable, and that utility could not force extensive retrofitting of dwellings based solely on a violation of the standards.

Public Utilities Commission, in order prohibiting natural gas utility from threatening to shut off gas service to customer’s 240-unit complex to compel customer to retrofit each apartment to conform to current fuel gas standards of national trade association, did not impose undue burden on utility.  Claim that ruling would create a backlog of customers contesting the enforceability of the standards was speculative, and claim that order would impose significant recordkeeping requirements and require changes to utility’s computer system was not supported by evidence.

The Crawford Family Farm Partnership (Crawford) contenced that that the pipeline planned by TransCanada Keystone Pipeline, L.P. (TransCanada) failed to sufficiently fall within the specifications made by the Legislature to authorize TransCanada to exercise the power of eminent domain to compel the grant of a pipeline right-of-way over Crawford lands.

Crawford responded to TransCanada’s motion for summary judgment by raising a new argument—that because TransCanada is an interstate pipeline which contemplates the transmission of crude oil, it is not a common carrier under Section 111.002(1) and (6) of the Texas Natural Resources Code.

The Court of Appeals concluded that TransCanada was a common carrier with the power of eminent domain.

This appeal presented numerous issues regarding the regulation and permitting of the limited water resources within the Edwards Aquifer region of South Texas. Appellants Glenn and JoLynn Bragg are commercial pecan growers who were denied a water permit for one of their pecan orchards and granted a limited permit for another of their pecan orchards. The Braggs successfully sued Edwards Aquifer Authority (the “Authority”) and Roland Ruiz in his official capacity as General Manager of the Authority for an alleged taking of their property and obtained a judgment awarding them damages.

The Authority and Ruiz then appealed asserting: (1) the Braggs sued the wrong party because the State’s mandate of the Authority’s actions precludes a takings claim against the Authority; (2) the Braggs’ claims are barred by the statute of limitations; (3) no compensation is owed for any taking of the Braggs’ Home Place Orchard; (4) the trial court incorrectly determined the amount of compensation owed for any taking of the Braggs’ D’Hanis Orchard; (5) the Authority’s permitting decision did not cause a taking of the Home Place Orchard or the D’Hanis Orchard; and (6) if it prevails, it is entitled to attorney’s fees. In their cross-appeal, the Braggs contend the trial court erred (1) in calculating the compensation owed to them on both takings claims and (2) by concluding the Authority’s denial of their permit applications did not amount to per se or categorical taking.

The Court of Appeals concluded that the trial court properly determined the implementation of the  Edwards Aquifer Act resulted in a takings of the Braggs’ property. However, because the trial court erred in quantifying the compensation owed to the Braggs, it reversed and remanded.

Police officer was terminated from his position with the Orem City Police Department after using excessive force during a booking at Orem City Jail. Both the Orem City Employee Appeals Board  and the court of appeals upheld Officer Nelson’s termination. Police officer sought review of decision of the city employee appeals board that upheld city’s decision to terminate his employment.

The Supreme Court of Utah held that:

• Abuse of discretion was appropriate standard for appellate court to review Appeals Board’s determination that officer’s termination was not inconsistent with prior sanctions under police department’s excessive force policy;
• Appeals Board did not abuse its discretion when it found that police officer’s termination for use of excessive force was not inconsistent with prior sanctions under police department’s excessive force policy; and
• Any error in Appeals Board’s relying on police department’s expert, to whom police officer had allegedly revealed confidential information, was harmless.

Coalition of neighbors filed a Land Use Petition Act (LUPA) petition for review of approval of a conditional use permit for a private airstrip. The Spokane Superior Court remanded for a new hearing. County and permit applicants appealed, and neighbors cross-appealed.

The Court of Appeals held that:

• Failure to include property owners’ names in caption in petition did not divest superior court of jurisdiction;
• Land Use Petition Act did not require that a summons accompany filing of LUPA petition;
• Notice of application for conditional use permit for airstrip was insufficient; and
• Neighbors were not entitled to costs.

Notice of application for conditional use permit for airstrip was insufficient, where county code stated that notice had to be posted along the most heavily traveled street, proposed airstrip was not adjacent to a road, two nearest roads were a dirt road leading to a private residence and a paved thoroughfare in the area, applicant only posted notice on the dirt road leading to the private residence, and notice gave an erroneous description of where the airstrip site would be located.

One purpose of specific statutory requirements for public notice of an impending land use decision is to ensure that decision makers receive enough information from those who may be affected by the action to make an intelligent decision.

Former police officers brought action against municipality for racial discrimination, alleging a hostile work environment. The Superior Court granted motion to compel officers’ compliance with discovery requests. Officers petitioned for review, which was granted. Officers appealed.

The Supreme Court of Alaska held that:

• On an issue of first impression, garden-variety mental anguish claims did not waive physician and psychotherapist privilege, and
• Officers’ mental anguish claims were garden-variety.

“Garden-variety claims” of mental anguish refer to claims for compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.

Police officers’ garden-variety mental anguish claims in employment discrimination action against municipality did not waive physician and psychotherapist privilege.  Garden-variety claims were sufficiently limited in scope to alleviate defendants’ concerns regarding fairness to defendants, wide-ranging inquiry into an individual’s medical and psychiatric history could have deterred legitimate discrimination claims, and litigants should not have been forced to choose between disclosing highly personal medical information and asserting claims for distress that any healthy individual would have likely suffered as a result of discrimination.

Former police officers’ assertion of mental anguish claims in employment discrimination action against municipality were “garden-variety claims” that did not put their mental state at issue so as to waive physician and psychotherapist privilege for purposes of discovery of officers’ medical records, where mental anguish claims did not allege a specific, diagnosed psychological condition, but rather merely that officers had suffered general mental distress, officers alleged that they did not receive mental health treatment for emotional distress, and officers asserted that their claims could be established by lay testimony.

City filed eminent domain action to acquire land for truck route though light industrial land, and appraised the take as undevelopable agricultural land on theory that it would not approve any development unless landowners gave or dedicated truck route land to the city.

After bifurcation and court trial on legal issues, the Superior Court entered judgment for city regarding dedication issue. Following stipulated judgment as to appraisal, landowners appealed.

The Court of Appeal  held that:

• Landowners had right to jury trial on issues of fact bearing on fair market value;
• Court could not consider city’s promises of future concessions and assurances when considering whether taken area was roughly proportionate to parcel’s potential traffic impacts;
• Dedication requirement was a free-standing requirement which was not attributable to the road construction project for purposes of statute prohibiting evidence of increase or decrease in value attributable to the project; and
• Testimony by city manager and engineer was expert testimony.

When condemned property would have to be dedicated as a condition of developing the larger parcel of which the condemned property is a part, the condemned property must be valued at its current use because it could never be used for any other purpose.

Owners of light industrial land had a right to a jury trial on certain factual issues bearing on the fair market value of their land which city took to establish truck route, including whether it was reasonably probable that city would require the take to be dedicated as a condition of developing the entire parcel, and whether the extent of the take was roughly proportionate to the entire parcel’s impacts on traffic in the event the entire parcel was developed for light industrial uses.

The Friends of Oroville brought action under the California Environmental Quality Act (CEQA), challenging the City of Oroville’s approval of an environmental impact report (EIR) for the project at issue—a relocated and expanded Wal–Mart Supercenter to replace an existing Wal–Mart of traditional dimension and retail offerings (the Project).

On appeal, plaintiffs contended the City’s EIR (1) improperly found it was infeasible for the Project to contribute its fair share mitigation for “Year 2030” cumulative traffic impacts along eight intersections of Oroville Dam Boulevard, (2) inadequately analyzed the Project’s hydrological impacts, (3) inadequately analyzed the Project’s greenhouse gas emissions, and (4) violated CEQA’s notice requirements.

The appeals court found that the City properly adopted Assembly Bill 32’s reduction targets for GHG emissions as the threshold-of-significance standard in determining whether the Project’s GHG emissions constituted a significant environmental impact.  The problem was that the City improperly applied this proper standard in concluding that the Project’s environmental impacts from GHG emissions were less than significant. Citizens, again, exemplifies the model, showing us a proper way to apply the Assembly Bill 32 threshold-of-significance standard.

The appeals court concluded that the City misapplied the Assembly Bill 32 threshold-of-significance standard in two related ways: (1) by applying a meaningless, relative number to determine insignificant impact; and (2) by failing to ascertain the existing Wal–Mart’s GHG emissions, and the impact on GHG emissions from the Project’s mitigation measures.

Minor daughter of suspect fatally shot by sheriff’s deputies brought action against deputies and county, alleging state and federal claims stemming from shooting.

The Supreme Court of California held that tactical conduct and decisions preceding an officer’s use of deadly force were relevant considerations in determining whether the use of deadly force gives rise to negligence liability; disapproving Munoz v. City of Union City, 120 Cal.App.4th 1077, 16 Cal.Rptr.3d 521.

Landowner brought action against town, seeking writ of mandamus and injunctive and declaratory relief, to restore and preserve a mill located on town property that abutted landowner’s property.

The Appellate Court held that:

• Landowner lacked standing to challenge city’s mill demolition by virtue of his status as abutting landowner;
• Landowner lacked voter standing to challenge the demolition; and
• Landowner lacked taxpayer standing to challenge the demolition.

Abutting landowners are statutorily aggrieved in zoning cases.  However, landowner lacked standing to challenge town’s demolition of a mill located on town property by virtue of his ownership of property abutting the mill.  Landowner’s action was not an administrative appeal from the decision of a zoning agency or conservation commission, and landowner failed to allege specific, personal, and legal interest in the mill demolition arising from his status as abutting landowner that was any different from the general interest that all members of the community shared.

A plaintiff’s status as a taxpayer does not automatically give him standing to challenge alleged improprieties in the conduct of the defendant town; plaintiff must also allege and demonstrate that the allegedly improper municipal conduct caused him to suffer some pecuniary or other great injury.

To establish taxpayer standing, it is not enough for a plaintiff to show that his tax dollars have contributed to the challenged municipal project.  Plaintiff must prove that the project has directly or indirectly increased his taxes or, in some other fashion, caused him irreparable injury in his capacity as a taxpayer.

Property owner brought declaratory judgment action against county and its zoning administrator seeking declaration of its vested rights under prior land use regulation and declaration that certain portion of county’s land development code (LDC) were unconstitutional.

The District Court of Appeal held that:

• Action presented a justiciable controversy appropriate for declaratory judgment, and
• Ordinance’s exhaustion of administrative remedies requirement did not apply to declaratory judgment actions.

Action in which property owner sought declaration of its vested rights under prior land use regulation and declaration that portions of county’s land development code (LDC) was unconstitutional concerned a justiciable controversy appropriate for declaratory relief.  Property owner had a dispute with the county over which legal framework applied to its permit for a landfill.   Property owner sought determination whether it had a vested right to proceed merely with a conditional use permit or whether the subsequent changes to the LDC, requiring a comprehensive plan land use amendment, applied.  Without such a determination, property owner risked having made a significant investment in seeking the conditional use permit only to learn the expense was wasted by the need for a comprehensive plan amendment.

This was a judicial review action arising out of Montgomery County’s classification, valuation, and assessment of certain assets owned by Coffeyville Resources Nitrogen Fertilizers, L.L.C.  The Montgomery County appraiser classified, valued, and assessed the 699 assets in dispute—which are used by Coffeyville Resources at a nitrogen fertilizer plant—as real property. The Kansas Court of Tax Appeals (COTA) found in a 2–1 decision that the assets in dispute were properly classified as real property and that the fair market value of the real property was $303,066,836.

The appeal raised three issues. First, whether COTA utilized the appropriate test in classifying the disputed assets as real property. Second, whether COTA erred in concluding that Coffeyville Resources failed to establish a violation of its constitutional right to uniform and equal tax treatment. Third, if COTA erred in relying on Montgomery County’s appraisal of the disputed assets.

As to the first issue, the appeals court found that the lower court’s failure to make findings of fact and conclusions of law regarding the individual assets—or groups of similar assets—in dispute made it difficult—if not impossible—for the court to meaningfully review whether COTA appropriately applied the Total Petroleum factors in this case. It therefore remanded this matter to COTA to make specific findings and conclusions, based on the Total Petroleum factors, as to whether each asset—or group of assets—should be classified as real property or personal property.

Property owner appealed decision of town zoning board of appeals, denying owner’s application for variance and special permit for a parcel comprised of two lots.

The Appeals Court held that:

• Decision of board, that one lot had retained its separate character, did not preclude lots from merging for zoning purposes, and
• Owner’s lots were not protected from merger under statute exempting certain lots from increased zoning restrictions.

Under the common-law merger doctrine, when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning purposes.

Owner’s three adjoining lots were not protected from merger for zoning purposes under statute exempting certain lots from increased zoning restrictions, even though town zoning board had previously determined that one lot retained its separate character, where town subsequently enacted zoning ordinance increasing lot frontage requirements in district where lots were located.  Town’s prior finding that one lot retained its “separate status as a preexisting nonconforming lot,” did not equate to a finding that the lot was separately owned from the other two lots, thereby somehow qualifying first lot for “perpetual” protection under the statute.

Plaintiffs were residents of the City of Le Sueur who opposed the development of a proposed energy power plant. The proposed bioenergy-electric-generating power plant was known as the Hometown Bio Energy Project.

The Minnesota Municipal Power Agency (MMPA) proposed to develop the project on a site of approximately 35 acres just outside of the city. The city council accepted a petition for annexation from the owner of the proposed project site and completed annexation of the site in December 2011.

The city is a Home Rule Charter city, as authorized by Minnesota Statutes Chapter 410.  The city’s charter reserves to the voters the right to petition the city council for adoption of ordinances. Concerned about the possible nuisance impact of the project, appellants proposed an ordinance amending Ordinance No. 517 of the city’s Code of Ordinances relating to public nuisances.

The district court determined that the proposed ordinance amendment conflicted with state nuisance law and was a land-use regulation preempted by the Municipal Planning Act (MPA).  The appeals court affirmed.

Property owner brought action against water association, county, and the Department of Transportation (DOT), alleging claims for negligence and breach of contract against water association, and inverse condemnation against county and the DOT related to the destruction of a water line during a highway expansion project.

The Court of Appeals held that:

• Property owner lacked standing to bring breach of contract claim against water association;
• Summary judgment evidence was sufficient to demonstrate that association’s contractual relationship with member ended long before water line that serviced member was damaged;
• Association’s failure to replace damaged water line did not constitute negligence;
• The 120-day period for property owner to serve her inverse condemnation complaint on county began to run on the date she filed her complaint; and
• Circuit Court’s determination that no good cause was shown for property owner’s intentional delay in serving process on county did not constitute an abuse of discretion.

Baseball coach and principal sought review of decision by school district to terminate them. The Chancery Court affirmed coach’s termination, but ordered principal reinstated and awarded him lost wages. Coach and school district appealed.

The Court of Appeals held that:

• Baseball coach was terminated for good cause, and
• Principal was terminated for good cause.

Baseball coach was terminated for good cause; by using the school’s name to finance the purchase of a fairway mower, coach wrongfully exposing the district to potential liability for a $15,000 mower. School district’s renewal of baseball coach’s contract did not amount to ratification of his prior actions in securing credit for the purchase of a fairway mower by using the school’s name, where coach’s misconduct was not discovered until after the contract renewal.

School board had good cause to terminate principal.   He admitted he knew the school could not buy the fairway mower, yet he executed a document purporting to give baseball coach the authority to make such a purchase on the school’s behalf.  While the principal claimed he did not know what he was signing, his signature on the incumbency certificate was sufficient evidence for the school board to conclude he had read and understood the document. A person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.

Plaintiffs brought action seeking to invalidate petitions designating incumbent as candidate for district attorney for county, based on county term limit law.

The Supreme Court, Appellate Division, held that:

• County lacked authority to restrict the number of consecutive years that a person could serve as district attorney for the county, and
• County government’s ability to place term limits on office of district attorney for county is preempted by state law.

Appeal was taken from order of the Supreme Court granting applications to invalidate designating petitions for two candidates for town office in upcoming primary election.

The Supreme Court, Appellate Division, held that:

• Failure of subscribing witnesses to inform signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed rendered the signatures invalid;
• Subscribing witness’ mistaken execution of the statement intended for a notary public or commissioner of deeds rather than that meant for party members on nominating petition rendered signatures on the petition invalid, but
• Such mistakes were technical irregularities that did not preclude giving voters an opportunity to ballot.

Defendant was convicted in the Circuit Court of several state law offenses and violation of city ordinance against carrying a firearm in a public place having recklessly failed to unload it.

The Supreme Court of Oregon held that:

• Supreme Court would not address defendant’s overbreadth challenge to city ordinance;
• Ordinance was facially constitutional under state constitutional article governing right to bear arms; and
• Ordinance did not violate the Second Amendment; overruling State v. Blocker, 630 P.2d 824, and State v. Hirsch/Friend, 114 P.3d 1104.

City ordinance, prohibiting a person from knowingly possessing or carrying a firearm in a public place, recklessly having failed to remove all ammunition from firearm, does not prohibit the mere possession of firearms in public places, but specifically regulates only the manner of possession, namely, knowingly possessing or carrying a loaded firearm in public and recklessly failing to remove all of the ammunition.

Justification for recognizing overbreadth challenges in cases involving freedom of expression and peaceable assembly under First Amendment does not apply in the context of state constitutional article governing the right to bear arms.  Unlike protected speech and assembly, recognizing overbreadth challenges in “right to bear arms” cases is not necessary because the enforcement of an overbroad restriction on the right to bear arms does not tend to similarly deter or “chill” conduct that that provision protects.

Overbreadth challenges are not cognizable in challenges under state constitutional article governing right to bear arms, and as such, the justification for recognizing overbreadth challenges in First Amendment freedom of expression and assembly cases does not apply in the context of “right to bear arms” cases; overruling State v. Blocker, 630 P.2d 824, and State v. Hirsch/Friend, 114 P.3d 1104.

Intermediate scrutiny, as opposed to strict scrutiny, was appropriate standard to review constitutionality of city ordinance, prohibiting a person from knowingly possessing or carrying a firearm in a public place, recklessly having failed to remove all ammunition from firearm, under Second Amendment.  Ordinance did not absolutely restrict the individual right to bear arms in public for the purpose of self-defense, and it also made additional exceptions to the prohibition of possession or carrying loaded firearms in public places, some of which lessened the burden of the ordinance on Second Amendment rights.

Former teacher brought action claiming that school district violated Americans with Disabilities Act (ADA) and other federal and state laws by refusing to grant her reasonable accommodations after she suffered herniated disks and related back problems.

The Court of Appeals held that:

• Ample evidence supported finding that school district’s offer of elevator access to teacher after reassigning her to upstairs classroom was a reasonable accommodation under ADA, and
• School district offer of elevator access to teacher fulfilled its duty under the ADA, and it was not obligated to offer her another teaching or administrative position.

Bank transferred Property to Township, which intended to convert it into a playground.  Funds were not immediately available for this conversion, so the Property was used as open space while the Township pursued the playground project.

County sent a notice to the Township notifying the Township of municipal/county and school district tax liability for the Property. The Township appealed to the Board, which affirmed its tax assessment of the Property based on fair market value.  The Township appealed the tax assessment of the Board to the trial court challenging the Property’s tax-exempt status.

On appeal, the Board argued that the trial court erred in determining that the Board bore the burden of proving that the Township was not using the Property for a public purpose and therefore the Property was taxable. The Board asserted that the trial court erred in concluding that the Property was tax-exempt because: (1) the Township was not actively and currently using the Property for public purposes; (2) the Township merely “intended” to use the Property as a public park and/or playground and had not begun construction or expended significant sums of money towards this development; (3) the Township did not have the necessary funds to develop the Property for public purposes; and (4) the Township had failed to install improvements to the Property or notify its residents that the Property was available for public use as a park and/or playground.

The appeals court began its analysis by stating that a progeny of cases had held that municipal authorities, including townships, are extensions of the Commonwealth, and, thus, property owned by these entities is presumptively non-taxable.

The appeals court concluded by stating that, “Because property owned by a governmental body (i.e., a township) is presumed to be immune from taxation unless there is evidence presented that the property is being used for a non-governmental purpose, see Granville, the trial court correctly placed the burden on the taxing authority to prove the Township’s tax liability. With the sole evidence by the Board being the tax assessment record card and a photograph of the Property establishing that it is vacant, the record supports the trial court’s finding that there was no evidence in the record to suggest that the Property has been used for a non-public purpose and, moreover, supports the findings that the Property is available to the public for recreational activities and was used for the public’s benefit. Though not required for a property to be tax-immune/exempt, the trial court also found that the Township made a good-faith effort to develop the Property (as established by the Township’s testimony that it had continued to apply for grants, clear trees and debris, and maintain the Property as part of its regular maintenance program for playgrounds/parks). The evidence supports the trial court’s findings, and it is insufficient to rebut the presumption—itself supported by a century of case law—that the Property is exempt from taxation. The trial court properly concluded that, ‘[u]nder these circumstances, taxation of the [P]roperty is neither compelled nor intended by the Pennsylvania Constitution or the County Assessment Law.'”

Pedestrian brought negligence action against city and landowner, whose land abutted public sidewalk, after pedestrian was injured while walking on sidewalk.

The Supreme Court, Zinter of South Dakota held that:

• City had sufficient control over sidewalk within city boundary, so as to have duty of care for designing, constructing, maintaining, and repairing sidewalk, but
• There was no evidence that landowner made special use of sidewalk, as would create duty on part of landowner to maintain sidewalk in reasonably safe condition for pedestrian.

Under common law, landowners abutting public sidewalks generally do not owe a duty to keep them in a reasonably safe condition, but an exception exists when the abutting owner creates or maintains an excavation or other artificial condition on the sidewalk.

Under the “special use doctrine,” if an abutting landowner makes special use of the sidewalk, he or she owes a duty to maintain it in a reasonably safe condition for pedestrians lawfully using it, and must exercise reasonable care to guard the public from injury.  If the abutter does not, he or she becomes liable to any persons injured as a proximate result of his or her negligence.

After County Zoning Board of Appeals issued order permitting farmer to hold one amplified outdoor music concert per year, farmer’s neighbor filed suit against farmer, asserting claim for nuisance and violation of Board’s order limiting concerts to one per year.

The Supreme Court of Tennessee held that:

• Marketing of farm by holding amplified outdoor music concerts was not connected with production of farm products, within meaning of Right to Farm Act;
• Evidence was sufficient to establish prima facie case of nuisance;
• Music concerts were not “recreational activities on land used for commercial production of farm products,” within statutory definition of “agriculture,” and thus, were not exempt from compliance with zoning resolution.

Railroads petitioned for writ of review challenging Public Utilities Commission’s (PUC) determination that it had the authority to order railroads to stop using locomotive-mounted horns at certain pedestrian rail crossings.

The Court of Appeal held that PUC lacks authority to order railroads to stop using locomotive-mounted horns at rail crossings outside federal quiet zones.

The Federal Railroad Administration regulations making the sounding of a locomotive-mounted audible warning device at public highway-rail grade crossings a requirement of federal law leave the sounding of locomotive horns at pedestrian crossings entirely to the states to regulate.

Under the state statute mandating that “a bell, siren, horn, whistle, or similar audible warning device shall be sounded,” in accordance with a federal regulation requiring that such devices be mounted on a locomotive, at any public crossing or any other rail crossing except a crossing in a federal quiet zone, the PUC lacks authority to order railroads to stop using locomotive-mounted horns at pedestrian rail crossings outside federal quiet zones.

Plaintiffs – performers who make their living on the Venice Beach Boardwalk – filed a lawsuit raising facial and as-applied challenges to the 2006 and 2008 versions of LAMC § 42.15 and its implementing Public Expression Permit Program Rules, which govern the use of the Boardwalk.

Plaintiffs argued that the regulations violate the First and Fourteenth Amendments. The facial challenges to the 2008 ordinance at issue were threefold: First, Plaintiffs argued that the permitting and designated performance space system was not a reasonable time, place and manner restriction and granted unbridled discretion to licensing authorities. Second, Plaintiffs asserted that the ordinance’s use of the phrase “inextricably intertwined” rendered it unconstitutionally vague. Third, Plaintiffs claimed that the amplified sound ban was not a reasonable time, place, and manner restriction.

The District Court:

• Granted summary judgment in favor of City on the 2006 Ordinance;
• Granted summary judgment in favor of City on the Permit and Lottery system, the height restriction, the rotation requirement, and the sunset requirement;
• Granted summary judgment in favor of Plaintiffs on the amplified sound ban; and
• Granted summary judgment in favor of City on the facial constitutionality of the Rules of Decorum under the United States Constitution, but granted summary judgment in favor of Plaintiffs on their as-applied challenge to the Rules of Decorum under the United States Constitution and the California constitution.
• The court declined to issue a preliminary injunction but found that the provisions of the Rules of Decorum at issue here are constitutional only when there is an actual disruption beyond a per se breach of the Rules.

Association organized to protect neighborhood library, which was to be demolished and replaced as part of planned unit development (PUD), filed petition for judicial review of Zoning Commission’s decision to approve public contractor’s PUD application.

The Court of Appeals held that:

• Association had constitutional standing to seek judicial review of Commission’s approval of PUD application;
• Association had prudential standing to seek judicial review of Commission’s approval of PUD application;
• Commission acted reasonably in concluding that it was not required under “adverse effects” zoning regulation to consider value of land rights being transferred to public contractor in determining whether to approve PUD;
• Evidence supported conclusion of commission that PUD would not generate adequate revenue without relief from inclusionary zoning (IZ) requirements; and
• Evidence supported commission’s determination that approval of PUD would not be inconsistent with District’s comprehensive plan as a whole.

An organization or association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Injury in fact asserted by association organized to protect neighborhood library, which was to be demolished and replaced as part of planned unit development (PUD), i.e., that implementation of PUD would cause its members to lose the use and enjoyment of the current library and that the replacement library would be inadequate, was traceable to zoning commission’s order approving PUD, and the injury was capable of being redressed by a favorable decision of the Court of Appeals, such that association had constitutional standing to seek judicial review of commission’s order.

Plaintiffs were residents of Orange County, Florida, who own and raise toucans.  They brought several claims against Orange County based on their efforts to operate a commercial aviary out of their residence, which is located in a residential-only zoned area of the county, and another parcel of property that is located in rural-use zoned area of the county.

Plaintiffs contended that portions of Orange County’s land use ordinances, which prohibit the operation of a commercial aviary at the residence altogether and at the second property absent a special use permit, conflict with a provision of the Florida Constitution that provides the Florida Fish and Wildlife Commission with all of the “regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” Art. IV, § 9, Fla. Const.  Plaintiffs had been issued a permit to possess and sell the birds from their residence by the commission.

The court found that Florida law provided that the state legislative power over captive wildlife was transferred to the Florida Fish and Wildlife Conservation Commission. Art. IV, § 9, Fla. Const.  The effect of the transfer of that portion of the state’s legislative power was to divest the state legislature of authority to regulate the possession and sale of captive wildlife and vest that power in the commission. The commission therefore assumed the regulatory authority that the legislature had prior to the transfer.  As such, the rules adopted by the commission are tantamount to legislative acts and become the governing law of the state. Any and all laws in conflict with the commission’s rules are consequently void.

Applying these principles, the court concluded that Orange County cannot use its land use ordinances to regulate the possession or sale of captive wildlife.

The primary issue in this case was whether the trial court erred in interpreting Indiana Code section 13–26–14–4, which prohibits real property from being sold at a tax sale when the only lien against the property was for unpaid sewer bills. The appellees-petitioners successfully petitioned the trial court to have their respective properties removed from the county tax sale list when it was determined that unpaid sewage bills were the only liens on the parcels.

Twin Lakes Regional Sewer District (TLRSD), appealed that determination, alleging that the trial court misinterpreted the provisions of Indiana Code section 13–26–14–4 regarding the removal of the properties from the tax sale list.

The appeals court concluded that the trial court properly determined that the statute prohibits foreclosure on the property at a tax sale when an unpaid sewer bill is the only lien that exists on the property.

The Lawrence Police Department arrested some dude three times for violation of Lawrence, Kansas, Municipal Ordinance 16–803(4), which states in pertinent part:

“It shall be unlawful to …

….

(4) Continue to obstruct traffic on any street, sidewalk, or other right-of-way of this City after having been ordered by a police officer to end such obstruction.

“For the purposes of this section, ‘obstruct traffic’ means to walk, stand, sit, lie, or place an object in a manner as to: block lawful passage by another person or vehicle, or to require another person or driver to take evasive action to avoid physical contact, or to block the entrance of any private or public building or establishment from any public street or sidewalk.”

Apparently, dude had something going on with the Weaver’s store, located at the intersection of Massachusetts and Ninth Street in Lawrence, as each arrest occurred at that location.

Dude argued that ordinance 16–803(4) was unconstitutionally vague on its face. He also argued that the lack of a scienter and mens rea requirement in the ordinance gave rise to vagueness concerning his First Amendment rights.  Furthermore, it did not sufficiently define “evasive action.”

The void-for-vagueness doctrine requires that an ordinance define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

“Here, the conduct prohibited by the ordinance is clear. An ordinary person can understand what conduct is prohibited because the term ‘evasive action’ is unambiguous based on its plain meaning and the term ‘obstruct traffic’ is clearly defined in the ordinance. Moreover, the term ‘evasive action” does not lend itself to the same subjective interpretation as the term ‘annoying’ in the cases relied on by [the dude]. The clear and objective nature of the term ‘evasive action’ and the clearly defined term ‘obstruct traffic’ do not encourage arbitrary and discriminatory enforcement. All doubts must be resolved in favor of the ordinance’s validity, and it is our duty to uphold the ordinance rather than defeat it. This ordinance can be construed in a reasonable way that makes it constitutionally valid; therefore, the ordinance is upheld.”

Plaintiff, Orleans Parish School Board (“OPSB”), filed a petition seeking injunctive and declaratory relief. The Louisiana Department of Education (“DOE”), the Louisiana State Board of Elementary and Secondary Education (“BESE”), and John White, in his capacity as Superintendent of Education, were all named as defendants.  According to the petitions, OPSB alleged that the defendants were exceeding their constitutional authority by retaining control over non-failing OPSB schools that had been transferred from the jurisdiction of the OPSB to the BESE administered Recovery School District (the “RSD”). OPSB sought a judgment declaring that the attempts by the defendants to retain control over non-failing OPSB schools or otherwise interfere with the business affairs of the OPSB exceeded the constitutional and statutory limits of their authority. More specifically, OPSB requested that the trial court issue a permanent injunction restraining the defendants from acting in violation of their constitutional authority.

The trial court denied the OPSB’s requests for injunctive relief and declaratory judgment and the appeals court affirmed.

On appeal, the court was required to decide when a municipality must comply with the regulatory framework of the Highlands Water Protection and Planning Act (Act), N.J.S.A. 13:20–1 to–35, if it has chosen to join the Highlands Region planning areas. At issue was compliance with the provision that requires a municipality to obtain prior approval of the Highlands Water Protection and Planning Council (Council) before amending its municipal land use ordinance.

Appellant Greenwich Township (Greenwich) argued that Lopatcong Township (Lopatcong) was subject to this prior approval requirement when it amended its land use ordinance to permit, as a conditional use, the siting of asphalt and concrete manufacturing facilities in Lopatcong, which borders Greenwich. Thus, Greenwich argued, the Lopatcong ordinance was invalid because Lopatcong did not seek or obtain prior approval.

However, the Council, interpreting the Act, determined that the relevant area of Lopatcong was not yet subject to the Regional Master Plan (RMP) when Lopatcong adopted its challenged land use ordinance. Therefore, prior approval was not required. Greenwich appeals the Council’s decision.  Having reviewed Greenwich’s arguments in light of the facts and applicable law, the appeals court affirmed.

Boroughs, their boards of education, and residents brought action seeking dissolution of school district, permission to withdraw from district, or alteration of district’s funding formula following legislative mandate that regional school districts be funded through equalized valuation, rather than on a per-pupil basis.

The Superior Court, Appellate Division, held that:

• Failure to exhaust administrative remedies precluded relief;
• Borough failed to establish that exhaustion of remedies would have been futile;
• Circumstances did not warrant extraordinary equitable relief;
• Statutory remedies available were not illusory;
• Apportionment of cost system did not violate constitutional provision governing educational funding;
• Legislative funding mandate did not violate contracts clauses of federal and state constitutions;
• Funding mandate did not constitute an unconstitutional taking; and
• Mandate did not violate substantive due process rights of taxpayers.

Regional school district’s apportionment of cost system, in which borough’s taxpayers paid about the average State cost of education per pupil, did not violate state constitutional provision governing educational funding, which required a thorough and efficient education.  Constitutional provision was focused primarily on the education of students, not with equality among taxpayers, there was no allegation that district’s students were not receiving a thorough and efficient education, and the distribution of education costs among taxpayers was a policy decision to be made by the legislature.

Taxpayer appealed from order of the Court of Common Pleas directing taxpayer to pay a business privilege tax in the amount of $31,469.38, including penalties and interest.

The Commonwealth Court held that:

• Taxpayer’s providing of commercial leasehold space to others constituted “performance of services” within meaning of tax ordinance, and
• Commonwealth Court lacked power to abate the interest or penalties imposed against taxpayer.

Providing commercial leasehold space to others constituted the “performance of services” within meaning of business privilege tax ordinance, defining business as any activity carried on or exercised for gain or profits in township, including, but not limited to, sale of merchandise or other tangible personalty or performance of services.  Principle stated in ordinance was to establish a tax on “activities for gain or profit,” leasing commercial real property was such an activity, and exemption of rental income from owner-occupied real property ordinance would have no meaning if rental income was not subject to the business privilege tax.

Property owners appealed a city planning commission’s determination that their vacant property was blighted. The Court of Common Pleas certified owners’ property as blighted and authorized the city’s redevelopment authority to file a declaration of taking. Owners appealed.

The Commonwealth Court held that:

• City’s evidence was sufficient to prove that owners’ property was vacant, and
• Common pleas court did not unduly restrict the scope of its evidentiary inquiry or capriciously disregard evidence regarding vacancy.

City’s evidence was sufficient to prove that owners’ property was vacant, so as to support certification of the property as blighted under Urban Redevelopment Law.  Owner refused numerous requests to document occupancy with a lease and the address of an agent responsible for maintenance.  Owner refused to allow city to inspect the inside of the property, and owner’s uncorroborated testimony that one “Agent Josh” lived at the property and had changed the locks was rejected by trial court. 35 P.S. § 1712.1(e)(1)(i).

Landowners filed petition to establish independent school district for purposes of transferring their 22 contiguous parcels of property to the district. The Court of Common Pleas dismissed petition, concluding that most of those signing it were not eligible to do so. Landowners appealed.

The Commonwealth Court held that landowners were “taxable inhabitants,” and thus eligible to sign petition.

At hearing for petition to establish independent school district for purposes of transferring territory to proposed district, trial court must determine four things: (1) precise boundaries of proposed independent school district; (2) that a majority of “taxable inhabitants” in “contiguous territory” have, in fact, signed petition; (3) that petitioners have listed reasons for transfer; and (4) that petition names school district into which territory is proposed to be transferred.

Under public school code provision stating that in order to establish independent school district, majority of taxable inhabitants of any contiguous territory in any school district may present petition asking that territory be established as independent district, “taxable inhabitants” are those whose names appear on tax assessors’ list as persons who can be lawfully taxed, even though not all landowners were legally domiciled in township in which property was located.

In attorney disciplinary proceedings, the Disciplinary Board found misconduct and recommended public censure.

The Supreme Court of South Dakota held that:

• Attorney’s misleading statements violated rule of professional conduct;
• Attorney’s attempted concealing of potential evidence constituted misconduct;
• Attorney’s use of information obtained in his representation of city to assist counsel representing his daughter on city traffic charge was improper;
• Attorney’s disrespectful and insulting invectives in brief to circuit court was misconduct; and
• Public censure was warranted as a sanction.

Public censure was warranted as a sanction for attorney for city who engaged in misconduct by making misleading statements in his representation of city board of ethics, by attempting to conceal potential evidence, by using information obtained in his representation of city to assist counsel representing his daughter on city traffic charge, and by including disrespectful and insulting invectives in brief to circuit court.  Although attorney had practiced law for twenty-five years and had no prior substantiated disciplinary complaints, attorney’s acts were intentional and numerous, attorney minimized his misconduct, and attorney’s conduct was of a serious professional nature.

As a public sector lawyer and prosecutor, attorney representing city and prosecuting violations of its ordinances was a minister of justice obligated to guard the rights of the accused, enforce the rights of the public, and see that justice was done without employing improper methods.

Police officer sought administrative review of his termination for failing a portable breath test. The city appeals board upheld the termination, and officer appealed.

The Supreme Court of Utah held that:

• Substantial evidence supported finding that police officer was under the influence of alcohol, in violation of city’s alcohol policy, such that termination was warranted, and
• City was exempt from the requirements imposed by statute, stating that testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy.

Dog attack victim brought action against county alleging that county negligently failed to take appropriate action in response to complaints about dogs before the attack. The Superior Court entered judgment on a jury verdict finding county liable, but also finding that victim’s actions contributed to her injuries.

On cross-appeals, the Court of Appeals held that:

• Failure to enforce exception to the public duty doctrine applied to county’s failure to apply dangerous dog classification process to dogs following reports by neighbors;
• Evidence of reasons for prior complaints regarding dogs was admissible in dog attack victim’s action; and
• Evidence was sufficient to support jury’s finding of contributory negligence.

Under the failure to enforce exception to the public duty doctrine, a government’s obligation to the general public becomes a legal duty owed to the plaintiff when: (1) government agents who are responsible for enforcing statutory requirements actually know of a statutory violation; (2) the government agents have a statutory duty to take corrective action but fail to do so; and (3) the plaintiff is within the class the statute intended to protect.

Failure to enforce exception to the public duty doctrine applied to county’s failure to apply dangerous dog classification process to dogs following reports by neighbors.  Under ordinance, although the county had discretion to classify or not classify any particular dog as potentially dangerous, it had a duty to at least apply the classification process to any apparently valid report of a dangerous dog.

The Board created the Reserve Fund by purchasing a surety bond from Ambac, which had a AAA rating at the time. In June 2008 Ambac’s rating was downgraded to AA. As a result, the Board had to put cash in the Reserve Fund. When that happened, the Board sued Ambac for breach of contract, fraud, suppression of truth, and negligence.

The Water Works Board of the City of Birmingham appealed the district court’s dismissal of its claim against Ambac Financial Group, Inc. for failure to state a claim upon which relief can be granted.

In March 2007 the Board issued water and sewer revenue bonds. To do that, it was required to establish a Reserve Fund. One of the ways the Board could satisfy the requirements for the Reserve Fund was by purchasing a surety bond from an issuer that had a credit rating of AAA. If the issuer’s rating fell below AAA while the bonds were still outstanding, the Board was required to deposit into the Reserve Fund the amount of all outstanding securities or replace the original surety bond with another bond from an issuer that had a AAA rating.

The Board created the Reserve Fund by purchasing a surety bond from Ambac, which had a AAA rating at the time. In June 2008 Ambac’s rating was downgraded to AA. As a result, the Board had to put cash in the Reserve Fund. When that happened, the Board sued Ambac for breach of contract, fraud, suppression of truth, and negligence.

The district court dismissed the Board’s breach of contract claim, reasoning that the contract between Ambac and the Board did not require that Ambac keep its AAA rating. The Board argued that the Trust Indenture, which provided the terms for the Board’s issuance of the water and sewer bonds, imposed a contractual obligation on Ambac to maintain a AAA credit rating. The court found that, even if it was assumed that Ambac was bound by the Trust Indenture, the Board had not stated a viable claim for breach of contract. The Indenture did not require the bond issuer to keep a AAA rating. On the contrary, it explicitly acknowledged the possibility of the issuer’s rating being downgraded and explained what the Board was required to do in that situation.

The Board alleged that Ambac’s statements that it made careful investment choices were misrepresentations because they were made at a time when Ambac was lowering its underwriting standards. The appeals court agreed with the district court that Ambac’s statements were merely “puffing statements” designed to make Ambac look appealing.

The Board based its claim of suppression of truth on the fact that Ambac made statements about how selective and cautious it was in investing without disclosing that it had lowered its underwriting standards and without explaining its surveillance policy. Ambac’s general statements that it was “selective” or that it was engaging in “active surveillance,” however, did not give rise to a duty to disclose its underwriting standards or surveillance policies

Finally, the Board argued that the court erred when it dismissed its negligence claim, arguing that even if there was no express or implied agreement that Ambac would maintain its AAA rating, Ambac had a duty not to negligently lose its AAA rating. Here, the Board argued that Ambac’s negligence caused it to lose its AAA rating.  As Alabama law does not impose a duty on Ambac to retain that rating, the only possible source for that duty would be in the contract between the Board and Ambac, making the Board’s claim one sounding in contract law.

Motorist brought action against county for injuries sustained in a vehicle collision precipitated by another driver while on highway, alleging that lack of a center median space or barrier constituted a dangerous condition.

The Court of Appeal held that:

• Summary judgment evidence established that lack of median space or barrier was not a proximate cause of accident;
• Drawings and declaration established that deputy director exercised discretionary authority in rejecting median space of barrier, as required for design immunity; and
• There was no increase in highway traffic flow, speed, or accidents which supported claim that county lost design immunity through changed conditions.

In order to demonstrate entitlement to design immunity, a public entity must establish three elements: (1) a causal relationship between the plan or design and the accident, (2) discretionary approval of the plan or design prior to construction, and (3) substantial evidence supporting the reasonableness of the plan or design.

Drawings and declaration were sufficient to show that deputy director considered a median space and/or barrier for highway, but rejected those features in the exercise of his discretionary authority, as required for county to have design immunity in action arising out of motor vehicle accident on highway.  Design drawings showed neither a median space nor a barrier, and deputy director stated that, in his professional engineering judgment, a center median was “not feasible due to a variety of technical reasons,” and that “technical, property ownership and environmental considerations precluded any immediate installation of a center median that is 10′ in width,” which was required to “even consider installing a center median barrier.”

Administrators of deceased motorist’s estate brought defective highway action against town after his car flipped over after sliding into an uncovered storm drain.

The Appellate Court held that evidence was sufficient to support finding that uncovered storm drain on shoulder of road did not “necessarily obstruct or hinder” use of the road, as required to be a defect.

A “defect” in a highway has been described as any object or condition in, upon, or near the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.

In this case, testimony showed that drain was placed at least three feet from the paved portion of road and that it was placed there for the purpose of making the paved portion safer by draining excess water, and two wooden posts of visible size identified the location of the drain to passersby.

The court noted that a municipality is not an insurer against accidents occurring on its highways; its duty is not to make its streets absolutely safe for the users thereof but only to exercise reasonable care to keep them in a reasonably safe condition for travel.

Following fatal accident on interstate in which vehicle crossed through line of warning flares and collided with fire truck, administratrix of deceased vehicle passenger’s estate brought wrongful death action against fire truck driver and town, alleging negligence against both defendants and nuisance against town.

The Appellate Court held that:

• Negligence claim against town was moot on appeal;
• Fire truck driver’s actions were discretionary in nature;
• Deceased passenger did not fall within identifiable person in imminent harm exception to qualified governmental immunity; and
• Plaintiff failed to establish a prima facie case of nuisance against town.

To prevail on the identifiable person in imminent harm exception to the doctrine of qualified governmental immunity, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer’s conduct subjected her to that harm, despite the apparent likelihood of harm to her.

The identifiable person in imminent harm exception to the doctrine of qualified governmental immunity requires three things: (1) an imminent harm, (2) an identifiable victim, and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception. the class of foreseeable victims to which passenger belonged, consisting of people in automobiles on the interstate, was not narrowly defined because any member of the public could have chosen to travel the interstate at the time the accident occurred, and passenger was not compelled by any municipal or state mandate to be in an automobile on the interstate at that time.

In this case, the class of foreseeable victims to which passenger belonged, consisting of people in automobiles on the interstate, was not narrowly defined because any member of the public could have chosen to travel the interstate at the time the accident occurred, and passenger was not compelled by any municipal or state mandate to be in an automobile on the interstate at that time.

CBS owned a billboard on land that was subsequently annexed by the Village.  The Village later conditioned a special use permit to develop the property on the removal of the billboard.  This was made possible when the former owner of the property did not renew CBS’ lease upon its expiration.

CBS brought an action the Village and the former property owner, alleging violations of its constitutional rights to due process, equal protection of the law, and freedom of speech.

The court found no validity to any of CBS’ claims and dismissed the case.

City residents brought Establishment Clause action, challenging city’s approval of church’s planned two-week display of numerous six-foot crosses on public riverfront property.

The District Court held that display of crosses would convey a message of city’s endorsement of Christianity to the reasonable observer, and thus, would violate the Establishment Clause.

City moved to vacate arbitration award finding that city violated collective bargaining agreement and awarding police officer damages and reinstatement to his original position.

The Supreme Judicial Court held that provision in collective bargaining agreement prohibiting the transfer of certain union representatives between stations or assignments impermissibly delegated police commissioner’s statutory power to assign and organize officers and thus, grievance arbitrator exceeded his authority in reversing police officer’s transfer.

Considerations of public safety and a disciplined police force require managerial control over matters such as staffing levels, assignments, uniforms, weapons, definition of duties, and deployment of personnel.  The deployment of officer personnel to meet the tasks and responsibilities of the department is a fundamental and customary prerogative of municipal management which falls squarely within the police commissioner’s authority.

Police commissioner’s nondelegable managerial authority to transfer police officers could not be delegated to an arbitrator pursuant to provision of collective bargaining agreement, even if the city and the union consented to the provision.

Police officer sought judicial review of a decision of the Administrative Hearing Commission that found the officer subject to discipline for committing a criminal offense while on active duty, and the subsequent permanent revocation of his peace officer license by the Director of the Department of Public Safety.

The Court of Appeals held that:

• Commission’s finding that officer committed a crime while on active duty did not violate officer’s constitutional right of due process;
• One-year criminal statute of limitations for assault did not apply to administrative proceeding;
• Finding that police officer’s act of grabbing driver by the throat during a routine traffic stop placed him in apprehension of immediate physical injury was supported by substantial evidence;
• Substantial evidence existed to support finding that police officer acted with reckless disregard for driver’s safety;
• It was not inconsistent for the Director to find that police officer acted both purposefully or knowingly in assaulting driver during routine traffic stop, as one basis for finding that discipline was appropriate, and also finding that officer recklessly disregarded driver’s safety, as an alternative basis for discipline;
• Director was not required to make additional findings of fact and conclusions of law to justify the permanent revocation of police officer’s peace officer license; and
• Officer waived for purposes of appeal his argument that the Director erred in permitting the Deputy Director to make the decision to permanently revoke officer’s peace officer license.

The constitutional protections afforded criminal defendants are not extended to a professional licensee subject to discipline, and thus, the administrative decision to permanently revoke police officer’s peace officer license after finding officer committed a criminal offense while on active duty was not a violation of officer’s constitutional right of due process, even though no criminal charges were brought by a public prosecutor.

The Kansas City Downtown Streetcar Transportation Development District was formed in 2012 via a formation lawsuit and a series of elections.  The construction and operation of the streetcar line was to be funded, in substantial part, by special assessments on real property located within the District, and by a sales tax, not to exceed one percent, on retail sales within the District.

Appellants – property and business owners in the district – challenged the legality of the District’s formation and the imposition of the sales tax and real-property assessments.

The circuit court entered its judgment granting the Streetcar District’s motion to dismiss Appellants’ petition. The court held that Appellants’ challenges to the real-property special assessments were “election contests” which were untimely under § 115.577, because Appellants did not bring their claims within thirty days of the certification of the results of the election approving the special assessments. The circuit court also held that Appellants were estopped from asserting any of their claims because they should have raised their challenges in the formation lawsuit, prior to the elections which authorized the District’s formation and the imposition of the sales tax and real-property assessments.  The appeals court affirmed.

Railroad filed petition for authorization to acquire property adjacent to railyard for use in intermodal freight operations through exercise of power of eminent domain. The Department of Transportation (DOT) authorized railroad to commence condemnation proceedings.

The Supreme Court of New Jersey held that:

• Railroad’s proposed use of property it sought to acquire through its power of eminent domain was not incompatible with the public interest;
• Property owner could not invoke the prior use doctrine in defense of railroad’s attempt to exercise its power of eminent domain; and
• Railroad was not required to prove urgency, immediacy, or emergency of its need for land as a prerequisite to exercising its condemnation power.

Railroad’s proposed use of property it sought to acquire through its power of eminent domain was not incompatible with the public interest, even if property owner’s proposal for the use of the property might have been more in the public’s interest.  Statutory provision that governed the power of condemnation by a public utility, including a railroad, demanded that the focus of the proposed use be on the proposed use identified by the contemnor, and in the absence of a previously existing public use, did not permit a comparative analysis of any competing public purpose proposed by property owner.

The “prior public use doctrine” operates to deny the exercise of the power of condemnation when the proposed use will destroy an existing public use or prevent a proposed public use unless the authority to do so has been expressly given by the Legislature or must necessarily be implied.  The application of the doctrine, therefore, is both specific and narrow. The prior public use doctrine does not automatically apply merely because property is already being used for a public purpose.

Railroad was not required to prove urgency, immediacy, or emergency of its need for land as a prerequisite to exercising its statutory condemnation power on the basis of the legislature’s use of the phrase “as exigencies of business may demand” in statutory provision that governed a railroad’s power of eminent domain.  The legislature meant the phrase “exigencies of business” to be understood in the way it was used at the time when the language was chosen, which was understood to describe generally the needs of a business, rather than to allude to an emergent, urgent, immediate, or pressing need.

Petitioners, a coalition of interest groups, brought hybrid article 78/declaratory judgment proceeding against New York City Department of Health and Mental Hygiene (DOHMH) and New York City Board of Health, challenging the constitutionality of an amendment to the New York City Health Code known as the “Sugary Drinks Portion Cap Rule” or the “Soda Ban,” which prohibited New York City restaurants, movie theaters, and other food service establishments (FSEs) from serving certain sugary drinks in sizes larger than 16 ounces.

The Supreme Court, Appellate Division, held that the Board of Health exceeded the bounds of its lawfully delegated authority as an administrative agency when it promulgated the rule in question.

Although the Board was authorized to regulate matters affecting public health, Board did not act solely with a view toward public health when it adopted rule, which contained exemptions for certain drinks and FSEs not because of health-related concerns, but due to social, economic, political, and regulatory considerations.  Board went beyond filling gap in existing regulatory scheme but, instead, wrote on a clean slate, especially absent evidence that soda consumption was a health hazard.  Board acted in area where legislature had tried but failed to act, and Board did not bring any scientific or health expertise to bear in creating rule.

Parents of fleeing suspect, who died in car crash, filed a lawsuit against deputy and county, alleging various theories of negligence in connection with deputy’s pursuit of their son.

The Supreme Court held, as matter of first impression, that statutory language exempting emergency vehicle operators from general traffic laws imposes a duty to fleeing suspects to act as a reasonably prudent emergency vehicle operator in like circumstances,

Public duty doctrine precludes the imposition of a duty on a government entity with respect to specific individuals in the absence of a specific connection between the government agency and the individuals that makes it reasonable to impose a duty, and there are at least four circumstances that may create such a special relationship: (1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.

In multidistrict litigation against various financial institutions and brokerage firms, alleging conspiracy to illegally rig bids, limit competition, and fix prices in municipal securities derivatives market, the State of West Virginia sought leave to file a second amended complaint to, inter alia, reinstate its claims against GE Funding.

Those claims had previously been dismissed “subject to reinstatement of the claims upon a sufficient showing by West Virginia during the course of discovery of facts supporting a plausible inference that GE Funding participated in the alleged conspiracy.”  Since that time, three former GE Funding employees had been prosecuted for conspirational conduct related to West Virginia’s claims against GE Funding.

The District Court ruled that West Virginia would be granted leave to amend, as discovery of facts supported plausible inference that GE Funding participated in alleged conspiracy.

City adopted an ordinance annexing certain property located within the Town and serviced by the Sanitary District.  The ordinance proclaimed, pursuant to WIS. STAT. § 66.0217, that the property was being annexed for purposes of providing municipal services.

Town and the Sanitary District filed suit against the City, alleging that the ordinance did not comport with the requirements of WIS. STAT. § 66.0217(14).

The circuit court dismissed the Town’s claims, concluding that WIS. STAT. § 66.0217(11)(c) bars towns from pursuing an action to declare an annexation void for failure to comply with § 66.0217(2). The circuit court dismissed the Sanitary District’s claims, concluding that the Sanitary District did not have a legal interest protected by § 66.0217 and therefore also lacked standing to bring the case.  The Court of Appeals affirmed.

The Houston County Commission entered into a development agreement with Ronnie Gilley Properties in February 2008 to develop an entertainment facility known as Country Crossing. This development was to include, among other things, electronic bingo.

The Houston County Commission created a Cooperative District and Improvement District of Houston County—Country Crossing Project. The Cooperative District issued Series 2009 bonds to finance public improvements to 375 acres of land which comprised the Country Crossing Development. The Series 2009 Bonds were issued pursuant to Indentures.  U.S. Bank acted as the Indenture Trustee of the Cooperative District.

The payment sources of the Series 2009 Bonds were assessments and fees at Country Crossing.  Some of the proceeds from the sale of the Series 2009 Bonds were required to be held in a fund by the Indenture Trustee to ensure sufficient funds to make interest payment installments under the Trust Indenture. The Trust Indenture also authorized the Cooperative District to provide U.S. Bank with a Letter of Credit to serve as additional security for repayment of the revenue bonds.

As a condition of its purchase of the Series 2009 bonds, the holders required additional repayment security in the form of an Irrevocable Standby Letter of Credit naming the Indenture Trustee as beneficiary. Defendant Dr. Robert Wright, Jr. – the CEO of one of the owners of the Development – sent a Side Letter to U.S. Bank in which he stated that Wells Fargo would issue a $5 million Irrevocable Standby Letter of Credit.  U.S. Bank alleged that consistent with the Side Letter, the Letter of Credit allowed U.S. Bank to draw on the Letter of Credit if given notice of non-extension of the Letter of Credit.

The electronic bingo planned for Country Crossing was determined to be illegal under Alabama law, and Country Crossing closed its doors. U.S. Bank alleged in the Complaint that collected revenues were insufficient to pay debt service on the bonds. The Cooperative District went into default.

After receiving a Notice of Non–Extension from Wells Fargo, U.S. Bank withdrew the entire $5 million under the Letter of Credit.

An attorney representing Russell Wright wrote to U.S. Bank and stated that Russell Wright had a legal interest in the Letter of Credit. In that letter, Russell Wright threatened to commence litigation and demanded the return of the $5 million.

U.S. Bank sought declaratory relief as to the validity of the Letter of Credit, the Side Letter, and the Amended Side Letter; U.S. Bank’s right to draw on the Letter of Credit; the rights of the Wrights with respect to the Letter of Credit; whether Russell Wright has the legal right and standing to challenge the validity of the obligations owed; the effect of the bond validation judgment; and sought a declaration that Russell Wright is judicially estopped from asserting any positions that are inconsistent with positions he took in the Resorts Development Group II, LLC bankruptcy.

The Wrights argued that the court lacked subject matter jurisdiction over the Complaint for declaratory judgment because U.S. Bank failed to seek a declaration of its rights with respect to the Letter of Credit before drawing down the funds to zero. The Wrights said that this action sought an after-the-fact validation of the draw-down, and a legitimization of U.S. Bank’s defenses to a theoretical future lawsuit by the Wrights. The Wrights argued that because U.S. Bank presented, and Wells Fargo honored, the Letter of Credit with no interference by the Wrights, U.S. Bank’s harm, if any, is conjectural and not actual or imminent. In response to a brief by U.S. Bank, counsel for the Wrights further represented to the court that they have been instructed to inform the court and parties “in no uncertain terms, that they are not going to file a lawsuit against U.S. Bank regarding its drawn down of the $5,000,000 letter of credit.”

Thus, there were two issues presented before the court; namely, whether the court had subject matter jurisdiction at the time the Complaint was filed, see Household Bank v. JFS Group, 320 F.3d 1249, 1259 (11th Cir.2003) (stating, in a case in which declaratory judgment defendants had informed the district court that they did not intend to file a suit, that the court must look to the facts as they existed at the time the action was filed), and, if so, whether the court now lacks jurisdiction because the case has become moot.

The court concluded that, before ruling on the mootness issue, the court would give the Wrights additional time in which to formally state their intentions. If the parties could come to an agreement and file a joint document, the court would consider it in ruling on mootness. If the parties cannot come to an agreement, the court will consider their positions and rule on mootness, and decide whether the court should abstain from exercising jurisdiction.

Plaintiff Francie Michelle Hollis was hired as a dispatcher for the Town of Mount Vernon in 2007. Hollis, Mount Vernon’s only full-time dispatcher, also served as the supervisor for approximately ten part-time dispatchers. During the time period relevant to Hollis’ claims, defendant Joseph Cassidy, a police lieutenant, was acting police chief. Defendant Jerry Lundy was the Town’s mayor during the relevant time period. William Cannon was a part-time dispatcher for the Town who worked the midnight to 8:00 a.m. shift.

Some time around early November 2009, Mr. Cannon took a shine to Hollis, as well as to a fellow dispatcher, Tina Dillard.  Sadly, his love was unrequited.  Nevertheless, Mr. Cannon continued to pursue both women.  His endearing pursuit included activities such as:

• Going to the police station on nights when he was not working and watching Ms. Dillard through the windows;
• Sending Ms. Dillard, who is African American, an email “saying that he didn’t know that he could love chocolate so much”;
• Telling Hollis that he was just trying to be sure that Dillard was safe because the inmates are not locked down and walk around at night, but he promising not to do it any more;
• “Coming in there. No underwear, wearing these little bitty shorts, with his legs open”;
• Obtaining an official ruling that visitors were allowed in the dispatch room for eight minutes at a time;
• Writing poetry to Hollis, his “muse,” and writing in her journal; and
• Following Hollis to a chemotherapy appointment.

What girl wouldn’t be flattered?

When Hollis informed Lt. Cassidy, who was acting police chief, about the peeping tom incidents, Cassidy responded “That man is crazy. I don’t know what to say about that man. You all better watch him.”  Really, what authority could the police chief possibly exercise over one of his employees?

When Hollis informed Mayor Lundy that Cannon was following her around, Lundy responded, “I don’t blame him baby. I’d like to follow you around, too. Look at you. Why wouldn’t he want you?”

What followed was a pretty standard-issue sexual harassment lawsuit.

Plaintiffs sued on behalf of themselves and a putative class of others similarly situated, defendant Pacific Gas & Electric Company (PG&E), a public utility. Plaintiffs own properties on which PG&E has utility easements creating rights of way. Plaintiffs allege PG&E, without their consent, trespassed on their properties by installing fiber-optic lines along its utility easements and leasing or licensing rights in the fiber-optic lines to telecommunications and Internet companies. Plaintiffs sought certification of their suit as a class action.

The trial court denied the motion to certify. The court based its denial on three separate grounds: (1) the easements must be interpreted on an individual basis to determine their scope and other issues regarding liability; (2) trespass damages must be determined on an individual, property-specific basis; and (3) plaintiffs had failed to show the superiority of class adjudication.

Taxpayer ran a service which converted customers’ incoming faxes to e-mails and their outgoing e-mails to faxes. Taxpayer filed claim against city for unlawful collection of Internet access tax under Internet Tax Freedom Act provision imposing a moratorium on the collection of taxes by state and local governments on purchases of telecommunications by providers of “Internet access.”

The Court of Appeal held that:

• Taxpayer’s service did not allow customers to “connect to the Internet” under Internet Tax Freedom Act;
• Taxpayer’s service did not provide a “homepage” or “electronic mail” under Internet Tax Freedom Act; and
• Taxpayer’s purchase of Direct Inward Dial (DID) telephone numbers was not a purchase of “Internet access.”

Calguns Foundation, Inc. filed an injunctive and declaratory relief action seeking a judgment declaring that a San Mateo County ordinance which precludes the possession and use of guns in the county’s parks and recreational areas was preempted by state law, and hence enjoining enforcement of that ordinance.  The trial court sustained the County’s demurrer to the complaint and entered a judgment of dismissal. The court of appeal affirmed.

Residents of area adjacent to a certain island appealed zoning board’s grant of island owner’s application seeking setback variance to replace an existing nonconforming structure with a boathouse on the island. The Superior Court found that the board properly granted the application and that the variance did not substantially affect city’s comprehensive zoning plan. Residents appealed.

The Appellate Court held that:

• Hardship existed for island owner, and
• Setback variance substantially conformed with the comprehensive zoning plan.

Setback variance sought by island owner to replace an existing nonconforming structure with a boathouse on the island substantially conformed with the comprehensive zoning plan: 1) boathouses were a use permitted in the conservation zone where the island was located; 2) the variance did not constitute an enlargement of a nonconforming structure; 3) area residents who opposed the owner’s setback variance application did not present any substantive analysis or law to demonstrate that construction of the boathouse would be adverse to the environment or how it was not in the public interest; 4) the island was too small to conform to the two acre lot minimum of the conservation zone; and 5) and the setbacks from the mean high water mark overlapped, which, if enforced, prevented any structure from being built on the island.

Topographic conditions on the property involved in an application for a zoning variance may be the basis for granting a variance, as long as other properties in the area do not have the same problem.

Defendant, a city mayor who had been charged with unlawful compensation, bribery, official misconduct, and conspiracy to commit unlawful compensation, filed motion to dismiss the charges against her. The Circuit Court granted motion. State appealed.

The District Court of Appeal held that:

• Allegations in information were sufficient to establish, if proved, the element of the receipt of a benefit for each of the charged offenses, and
• An explicit quid pro quo is necessary for a conviction under corruption-related statutes when a government representative accepts a campaign contribution.

Defendant has the initial burden to demonstrate in her motion to dismiss that the undisputed facts do not establish a prima facie case of guilt, after which the burden then shifts to the state to demonstrate either that material facts are actually in dispute or that the undisputed facts amount to a prima facie case of guilt.

Information alleged that major committed the offenses by corruptly requesting, soliciting, accepting, or agreeing to accept money from real estate developers who sought approval of their controversial development project to pay for a poll and an electioneering communications organization in exchange for the mayor voting favorably for their development project, and statutory definition of the term “benefit” as a “gain” or “advantage” was broad enough to encompass mayor’s alleged receipt of assistance in her election effort.

It did not follow from fact that election campaign contributions were authorized by law that financial campaign assistance could not constitute crimes of bribery or unlawful compensation, and, thus, it was for factfinder to determine whether mayor’s receipt of financial assistance in her election campaign from real estate developers, allegedly in exchange for her favorable vote to approve a highly controversial development project after the election, constituted crimes of bribery or unlawful compensation.

Individual who was appointed to fill vacancy on city commission during the temporary suspension of city commissioner brought action seeking a declaration that commissioner was ineligible for reelection to a third consecutive term. The Circuit Court entered declaratory judgment finding that city charter provision rendering a city commissioner “elected and qualified for two consecutive full terms” ineligible for reelection precluded commissioner from seeking reelection. Commissioner appealed.

The District Court of Appeal held that commissioner remained “qualified” during her suspension and thus precluded from seeking reelection.

Following an incident in which a student broke his hip at football practice, suit was brought against the school and the coaches alleging that they had failed to provide proper supervision and had allowed an unreasonable risk of injury to develop during the indoor practice. The parties stipulated to medical expenses of $21,626.57. After a bench trial, the trial judge awarded Mr. Stirgus $50,000 in past pain and suffering, and also awarded medical expenses of $71,871.71, which was $50,245.14 more than the stipulated amount.

School appealed as to the monetary award and to the finding that it was liable for failure to supervise.

The appeals court amended the judgment to reduce the award for all past medical expenses to the stipulated amount of $21,626.57.

To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.  The appeals court concluded that it did not have sufficient grounds to reverse the trial court’s judgment as to liability for failure to supervise.

The final issue concerned the $50,000 award for general damages, which plaintiff contended is too low and which erroneously did not include an award for future pain and suffering.

Considering all of the evidence, the appeals court was unable to articulate any reasons why an award of $50,000 for past pain and suffering, and no award for future pain and suffering, constituted an abuse of the trial judge’s vast discretion in fixing damages.  The award was confirmed.

Firefighter brought action against city, seeking declaratory and injunctive relief, alleging that city had wrongfully refused to reinstate him under statute governing reinstatement of public employees who had retired for disability, and alleging that city had engaged in handicap-based employment discrimination and interference with firefighter’s protected rights under antidiscrimination statute.

The Appeals Court held that:

• Firefighter was collaterally estopped from challenging finding of Contributory Retirement Appeal Board (CRAB) that city prohibited use of inhalers at a fire scene;
• Firefighter was not a “qualified handicapped person”; and
• City could not be liable for interfering with firefighter’s protected rights in the absence of unlawful discrimination.

Firefighter on disability retirement failed to appeal decision of CRAB finding that city fire department prohibited use of inhalers at a fire scene and ordering medical panel to clarify opinion as to whether firefighter was able to perform his job duties in light of that finding, and thus firefighter was collaterally estopped from disputing whether city rule barred use of inhalers at fire scene, in subsequent action against city seeking reinstatement under statute governing reinstatement of public employees who had retired for disability.

In a dispute over building permit fees, the city argued that (1) because each of respondents’ claims addressed the application and interpretation of the state building code, and an administrative process is available to address these matters, the district court erred in ruling that respondents did not need to exhaust administrative remedies before seeking judicial review; and (2) the municipal planning act did not apply to this case.  The appeals court agreed.

Property owners within fire protection district brought action against district and members of its board of commissioners challenging the monthly fire protection fee charged by the district as an illegal tax. The Circuit Court determined that the fee was a permissible fee for “services rendered.” Property owners appealed.

The Supreme Court of Mississippi held that as matter of first impression, district’s monthly fee was based on “services rendered” and, thus, was a permissible fee.

Fire protection district’s monthly fee for fire protection services was based on “services rendered,” within meaning of statute authorizing such districts to assess fees for services rendered as a funding mechanism, and, thus, was a permissible fee, rather than an impermissible tax. District provided a valuable service to property owners in the district by having fire and other emergency services available to respond to an emergency.

Residents brought action against township seeking an order directing the township to accept their referendum petition and either repeal budget ordinance or hold a referendum in accordance with the Faulkner Act.

The Superior Court, Appellate Division held that budget ordinance was not subject to a referendum under the Faulkner Act.

Township had the burden of proving that the Legislature intended to carve out from Faulkner Act ordinances adopted pursuant to statute allowing municipality to increase its budget by as much as, but no more than, 3.5% in any year in which the cost-of-living adjustment was equal to or less than 2.5%.  Township satisfied that burden.

Natural gas provider petitioned to enter property owner’s property for examinations and surveys related to construction of natural gas pipeline. The District Court granted petition. Property owners appealed.

The Supreme Court of North Dakota held that:

• Provider’s inclusion of matters outside the record did not warrant striking appellate brief;
• Motion to alter or amend was not served and filed within 28 days of notice of judgment;
• Motion for reconsideration was made within a reasonable time;
• Trial court had subject matter jurisdiction;
• Challenge to scope of order was moot; and
• Property owners were not entitled to award of attorney fees.

District court had subject matter jurisdiction to resolve natural gas provider’s petition seeking access to property owners’ property for examinations and surveys related to proposed natural gas pipeline, where statute authorized an entity in charge of a public use to enter upon another’s land and make examinations and surveys in contemplation of condemnation for a public use, but statute did not describe a procedure to enforce that statutory right if the landowner objected to entry upon the land. District court had statutorily-prescribed subject-matter jurisdiction to hear and determine all civil proceedings and all powers necessary to the full and complete jurisdiction of the causes and the parties and full and complete administration of justice.

Property owners’ challenge to the scope of trial court’s order authorizing natural gas provider to access property owners’ property to conduct examinations and surveys related to proposed natural gas pipeline was rendered moot by provider’s completion of the examinations and surveys.

Brookwood Presbyterian Church submitted an application to the Ohio Department of Education requesting approval as a sponsor of community schools in Ohio pursuant to R.C. 3314.02(C)(1)(f), which allows “education-oriented,” tax-exempt entities under Section 501(c)(3) of the Internal Revenue Code to sponsor community schools. The DOE subsequently determined Brookwood was not an “education-oriented” entity as required by R.C. 3314.02(C)(1)(f) and denied Brookwood eligibility to sponsor community schools.  After much litigation, the Court of Appeals affirmed.

Consumer advocate sought review of approval of electric distribution company’s default services plan by state Public Utilities Commission (PUC).

The Commonwealth Court held that:

• Evidence was sufficient to support PUC finding that customer costs would likely be higher if distribution company were forced to hedge its costs with short-term contract, and
• Statutory requirement of a “prudent mix” of services for electricity procured for default service plan did not require electric distribution company to include more than one source of electricity in default services plan, supporting approval by PUC of plan proposing to obtain all electricity for certain customers from purchases on spot market.

Evidence was sufficient to support finding of PUC that customer costs would likely be higher if distribution company were forced to hedge its costs with short-term contract, in approving electric distribution company’s default services plan which proposed to obtain all electricity for customers who had not chosen another electricity generation provider from purchases on the spot market, where the price varies day to day, according to market forces.  Witness testified that distribution company would have to pay a premium for a hedge contract due to the small size of any such contract, necessitated by company’s small default service requirement.

Potential candidates and school board were embroiled in fairly complex litigation in both state and federal court concerning redistricting, cancelled/rescheduled elections, and pre-clearance complexities when – yep, you guessed it – the Supreme Court declared unconstitutional section 4(b) of the Voting Rights Act.

Plaintiffs insisted that the court enforce its earlier decision requiring that a school board election originally scheduled for May be held in November.  School board and plaintiffs then proposed competing redistricting plans in light of the Supreme Court’s Shelby County decision.

The court said, “Hold your proverbial horses.” “The parties ask this Court to make decisions in this proceeding about a potential November 2013 election, but requests and challenges to a November 2013 election are pending in federal and state district courts, and the parties cannot predict when those cases will be resolved. Relators’ issues relate to an election on some future date, not a past May 2013 date. As the parties’ claims remain subject to on-going litigation in both federal and state courts, we refrain from exercising any mandamus authority and do not address the merits of the parties’ claims at this time. Accordingly we deny the motion and dismiss the mandamus petition without prejudice.”

County brought environmental enforcement action against industrial companies. After county obtained authorization to retain private attorneys on contingent-fee basis, companies sought temporary injunction to prevent county’s use of private attorneys on contingent-fee basis.

On appeal, defendants contended that the trial court erred in denying their request for temporary injunctive relief because (1) the County did not comply with the statutory provisions that control when a governmental entity can hire attorneys on a contingent-fee basis; (2) the County violated the state constitution’s separation-of-powers doctrine by agreeing to payment of the private attorneys’ contingent fee from funds to which the state may be entitled; and (3) the federal constitution’s due-process guarantee prohibits private attorneys from prosecuting a quasi-criminal action on a governmental entity’s behalf for a contingent fee.

The Court of Appeals held that:

• No live controversy existed regarding statutory compliance of county’s retainer of outside counsel through particular contingent-fee agreement, and thus issue was moot;
• Companies’ argument that county’s use of contingent-fee counsel violated companies’ due process rights was not moot;
• Companies did not have probable right to relief on due process claim; and
• Balance of equities did not weigh in favor of granting temporary injunction.

Industrial companies did not have probable right to relief on claim that county’s use of private attorneys on contingent-fee basis to prosecute civil environmental enforcement action against companies violated due process, as could support temporary injunction to prevent county’s use of such attorneys.  Due process clause did not establish blanket prohibition against a governmental entity’s engagement of private counsel on contingent-fee basis to pursue civil litigation in which only remedy sought was civil penalties, caselaw did not support companies’ labeling of action as quasi-criminal, and county had disclaimed any intention to pursue criminal charges against companies.

Balance of equities did not weigh in favor of granting temporary injunction to prevent county’s use of private attorneys on contingent-fee basis to prosecute civil environmental enforcement action against industrial companies, despite companies’ argument that this violated companies’ due process rights. There was public benefit to contingent-fee agreements in some circumstances, and any interest of attorney retained on contingent-fee basis to pursue maximum penalties could have existed for other advocates.

Former police officer sought review of city appeal board’s decision to affirm police chief’s termination of officer’s employment.

The Court of Appeals held that:

• Officer’s conduct in responding to a dispatch in excess of 100 mph, through six intersections, failed to demonstrate “due regard for the safety of all persons” as required by police department general order;
• Officer’s conduct violated applicable emergency vehicle operation (EVO) policies;
• Termination of employment was not disproportionate discipline; and
• Officer failed to establish that his discipline was improperly inconsistent with sanctions imposed on other officers.

Evidence supported finding that police officer, responding to a dispatch involving a request to assist with a possible fugitive, violated police department general order by his conduct in driving through six intersections at speeds over 100 mph, reaching a top speed of 121 mph, and in shutting down his emergency equipment before passing a vehicle on the right.  Officer failed to limit his speed with regard to reaction time, stopping distance, vehicle capabilities, and the possibility of unknown and unforeseen circumstances, thus failing to conduct himself with “due regard for the safety of all persons” as required.

Tribe and lessee brought action against county, challenging assessment of property taxes on leased property.  The District Court awarded summary judgment to county, finding that state and local governments were not prohibited from taxing permanent improvements, like resort on leased property, that were owned by non-Indians.  Tribe and lessee appealed.

The Court of Appeals held that land and permanent improvements on land were exempt from state and local taxation. Land where lessee operated resort was held in trust for use of tribe, and thus land and permanent improvements on land were exempt from state and local taxation.

Plaintiff Frank Estrada (Estrada) appealed a judgment following a court trial in an action against the City of Los Angeles (the City) for disability discrimination under the California Fair Employment and Housing Act (FEHA).

The essential issue was whether the trial court properly held that Estrada, formerly a volunteer Police Reserve Officer for the City, was not an employee for purposes of the FEHA.

Although Police Reserve Officers are volunteers who serve gratuitously, the City deems these individuals to be “employees” for the limited purpose of extending them workers’ compensation benefits. Such benefits are not remuneration; rather, they help to make the volunteers whole, in the event they are injured while performing their duties.

The appeals court held that the City’s policy decision to extend workers’ compensation benefits to these individuals, who voluntarily put themselves in harm’s way on behalf of the community, does not transform the volunteers’ status to that of “employee” for purposes of FEHA. Accordingly, the trial court properly concluded Estrada was not an employee and therefore could not maintain a cause of action against the City for disability discrimination.

Resident appealed from an order denying his petition for writ of administrative mandate that would direct the County of San Luis Obispo to rescind ordinance adopted by the San Luis Obispo County Board of Supervisors redistricting supervisorial districts following the 2010 census on the ground that it did not equally divide the population between districts and unnecessarily divides the unincorporated community of Templeton and the City of San Luis Obispo, thereby diluting the rural vote.

The Court of Appeal concluded that the Board proceeded in the manner required by Elections Code section 21500 when it adopted Ordinance No. 3218, amending chapter 2.60 of the County Code, and the deviation from equality of population was within the limits of the discretion given to the Board.

Plaintiff CACERF Norco, LLC (CACERF) is the owner of 428 acres in the City of Norco. It filed  a declaratory relief/inverse condemnation action against the City and the City Council, contending that changes in the City’s general plan and zoning ordinances resulted in a taking of CACERFs property under the Fifth and Fourteenth Amendments. CACERF plead that the City’s rezoning resulted in an unconstitutional taking of the property because it deprived CACERF of all beneficial and productive use of the property.

The court stated that CACERFs facial challenge must fail. “In looking at the text of both the general plan amendment and the implementing zoning ordinance, CACERF is not denied economically viable uses of its land. There is nothing on the face of the general plan amendment or ordinance which denies CACERF an economically beneficial or productive use of its land. Here, the preservation and development zone allows for planned mixed use commercial/office park projects, planned recreational projects, and planned resort projects. On its face, CACERF is not deprived of economically viable uses of its land. The fact that the uses may not be those that CACERF desires, or uses from which it can maximize its investment, is beside the point. The general plan amendment and zone change simply do not facially result in a taking of CACERFs land under the Fifth Amendment.”

Applicant sought review of zoning board decision denying application for a permit to operate a dog grooming business in her garage.

The Appellate Court held that dog grooming business was not a permitted “home occupation” within meaning of regulation.

Even if applicant groomed only three dogs per day, the line between permitted and prohibited uses under regulation was not intended to be drawn only with respect to potential traffic congestion, and zoning board could determine that the dog grooming business was more similar to prohibited uses such as barber shops and beauty parlors than to permitted uses such as a lawyer’s office or photographer’s studio.

Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of its legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. In applying the law to the facts of a particular case, a zoning board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal.

Bus passenger, individually, and on behalf of her daughter, brought suit against municipal transit authority to recover for injuries they suffered when they were attacked by third parties while riding a transit authority bus.

The Appellate Court held that authority’s conduct in overcrowding its buses was not a proximate cause of plaintiffs’ injuries.

Proximate cause requires the plaintiff to show that the defendant’s negligence was (1) the actual cause or the cause in fact of his injury, i.e., but for the defendant’s conduct, the accident would not have occurred; and (2) the legal cause of his injury, i.e., the defendant’s conduct was so closely tied to the plaintiff’s injury that he should be held legally responsible for it.

Municipal transit authority’s conduct in permitting bus to become overcrowded was not a cause in fact of deliberate physical attack of passenger by third parties as required to support negligence action against authority.  Passenger’s injuries were not connected with any altercation over finding a seat or inadvertent pushes or contact, as might be expected from overcrowding, but instead, her injuries appeared to have been purely result of racial and ethnic hostility.

Municipal transit authority’s conduct in permitting bus to become overcrowded was not a legal cause of deliberate physical attack of passenger by third parties exhibiting racial and ethnic hostility, as required to support negligence action against authority.  Although authority was arguably aware that some of its passengers harbored inflammatory biases and prejudices, authority’s possession of such knowledge did not make it foreseeable that the type of injury that occurred to passenger could occur from bus overcrowding.

Debtor is a not-for-profit enterprise that owns and operates an ice-skating rink. The Rink sells ice time to various skating organizations in Illinois as well as to the general public. The sole member of the Debtor and largest customer of the Rink is the Leafs Hockey Club (the “Club”), an amateur hockey organization. Although the Debtor is a taxable limited liability company, its income is passed through to the Club. The Club does not pay tax on the income received from the Debtor because the Debtor is a non-profit company. The Debtor owes $20 million to bondholders represented by Wells Fargo, the indenture trustee for the bondholders. The Club has guaranteed repayment of that debt.

When the owner of a Chapter 11 debtor is also the chief customer of that debtor, does the owner’s dual role automatically constitute “cause” for appointing a Chapter 11 trustee under 11 U.S.C. § 1104(a)(1)?

Wells Fargo argues that under § 1104(a)(1) the Court is required as a matter of law to appoint a Chapter 11 trustee where the Club is both owner and customer of the Debtor, because it must be presumed as a matter of law that the Club will always elevate its interests as customer over its interests as owner of the Debtor.

The court concluded, based on the totality of the evidence, that Wells Fargo had not demonstrated by clear and convincing evidence that a Chapter 11 trustee should be appointed under § 1104(a)(1) or (a)(2). Wells Fargo has not demonstrated evidence of “cause” including fraud, gross mismanagement, or dishonesty on the part of the Debtor, or that it would be in the interests of creditors, equity security holders, and other interests of the estate to appoint a trustee.

Pedestrian brought suit against city for injuries she sustained when she tripped on defect in public sidewalk.

The Appellate Court  held that:

• City did not have actual notice of defect, and
• City did not have constructive notice of defect, as required to be liable for injury under Tort Immunity Act.

Evidence that city received multiple prior complaints of defects in broader section of sidewalk was not relevant to establish that city had constructive notice of defect in portion of sidewalk on which pedestrian tripped and fell, as required to defeat motion for summary judgment based on governmental immunity under Tort Immunity Act.

Speculative theory that because section of sidewalk remained free of defects for two years, it could be inferred that the raised sidewalk on which pedestrian tripped and fell would have also remained in substantially the same condition over the same period, could not create fact question as to whether city had constructive notice of the defect, such that it could be liable for injury under Tort Immunity Act, so as to defeat motion for summary judgment.

Over the course of a decade, Defendants – a variety of state and federal agencies – investigated cross-river traffic issues and the possibility of alleviating problems by building a fourth bridge in East Louisville and reconstructing the existing transportation infrastructure. This culminated in the Project, which is a roughly $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River between Louisville and Southern Indiana.

Plaintiff, Coalition for the Advancement of Regional Transportation (“CART”), maintained twenty separate claims against Defendants. CART is a volunteer-member, tax exempt § 501(c)(3) organization that promotes modern transit planning, especially encouraging the introduction of light rail to urban transit systems. Though CART asserts a number of claims arguing that Defendants failed to comply with federal statutory mandates, and otherwise abused their discretion in the planning and implementation of the Project, its general contention is more normative. It believes that vehicular traffic will decline in future years, making the Project both unnecessary and in all likelihood, unable to obtain adequate funding to service construction loans taken out to finance the Project. CART maintains that other alternatives, even abandoning the Project altogether, would better serve the community.

CART advanced twenty claims against Defendants that can be generally grouped into four categories: the Project (1) violates the procedural mandates of NEPA; (2) violates various FAHA funding regulations, including the statute’s prohibition of federal participation in certain tolled facilities; (3) threatens the water and air quality of the region in violation of NEPA, the CWA and the CAA; and (4) intentionally discriminates against racial minorities in violation of Title VI.

The court stated, wearily, that “The discussion and debate over the Project, and specifically building a new bridge, has extended for several decades. Various interested parties have expressed every conceivable alternative, from doing nothing to demolishing and completely rebuilding our highway system.”

“The Court, and anyone associated with the Project, will concede that interested persons could reach different conclusions concerning the region’s transportation needs and their appropriate resolution. Again, the Court’s only role is to determine whether Defendants followed the applicable regulatory framework and reached conclusions that the Administrative Record supports. After closely examining the record and arguments, and based on the foregoing analysis, the Court finds that Defendants have met their burdens in that respect. As such, the Court concludes that Defendants reasonably exercised their discretion in making decisions about the Project’s scope, design and financing. Moreover, Defendants’ actions during the planning process and the final decisions do not suggest any actionable discriminatory intent.”

Natural gas storage company petitioned for review of an order of the Maryland Department of the Environment, which twice refused to process company’s application for an air quality permit necessary to proceed with construction of natural gas compressor station.

The Court of Appeals held that:

• Court of Appeals had jurisdiction under the Natural Gas Act;
• Department did not have Eleventh Amendment immunity;
• Natural Gas Act did not preempt Maryland stature requiring a demonstration that the proposed natural gas compressor station be in compliance with local laws; and
• Department was required to determine which local laws were applicable and whether company had complied with such laws.

Where Maryland Department of the Environment had refused to issue, condition, or deny an air quality permit, necessary to proceed with construction of natural gas compressor station, Court of Appeals had jurisdiction under the Natural Gas Act to consider whether the Department’s decision was lawful.

Under Ex Parte Young, Maryland Department of the Environment did not have Eleventh Amendment immunity from natural gas storage company’s action seeking review of the Department’s reasons for refusing to process its application for air quality permit necessary to proceed with construction of natural gas compressor station, where action was seeking prospective relief only.

Natural Gas Act did not preempt Maryland stature requiring a demonstration that the proposed natural gas compressor station be in compliance with local laws; Congress expressly saved states’ Clean Air Act powers from preemption, and Maryland provision was part of Maryland’s state implementation plan.

Maryland Department of the Environment was required to determine whether local zoning and land use requirements were preempted by Federal Energy Regulation Commission certificate, which approved construction of natural gas compressor station, and whether company seeking to build compressor had complied with any applicable zoning or land use requirements.  Department could not simply refuse to act on company’s application for air quality permit. Natural Gas Act.

The City of Cambridge implemented a Zoning Ordinance that rezoned plaintiff’s property – a vacant parking lot – from the C1–A zone to Residential C (the “Amendment”). In a Land Court Action, plaintiff sought to annul the Amendment on the grounds (a) that it was arbitrary and capricious and constituted an abuse of discretion which exceeded the authority of the City Council, and (b) that it was illegal reverse spot zoning.  Plaintiff claimed that by subjecting the property to reverse spot zoning, the City infringed upon its right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.

At issue was whether the City Council’s adoption of the Amendment “was a valid exercise of local zoning power.”  Plaintiff claimed that the Amendment was not a valid exercise of the City’s zoning power because it constituted reverse spot zoning. Reverse spot zoning occurs when a zoning change singles out one lot or a small area for more restrictive treatment than that imposed on other parcels in the same zoning district.

Whether the Amendment constituted spot zoning and thereby denied Plaintiff its right to equal protection under the law “turned not on what parcel has been singled out, or even on the effect on the parcel, but rather on whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act.”

In essence, Plaintiff’s claim was that the Amendment was poor land use planning, enacted with insufficient study. But given the broad authority of municipalities to legislate zoning changes and the deference to which such legislative decisions are entitled, poor planning is not the same as spot zoning. This case comes to down to a difference of opinion as to the appropriate zoning classification for the Property. Although reasonable minds may differ, the Amendment had not been shown to be substantially unrelated to the public health, safety, or general welfare, nor arbitrary or unreasonable. Rather, the enactment of the Amendment constituted a valid exercise of the City’s police power.

Because the City Council’s enactment of the Amendment was valid, it was not spot zoning. Summary judgment must be entered for the City, dismissing Plaintiff’s claims of spot zoning in the Land Court Action.

The Hescotts brought a complaint against the City after a residence they owned—an investment property—was demolished and the resulting debris was carried away without notice to them and without a court order authorizing the City’s conduct.

One month before trial, the City mad an offer of judgment pursuant to Federal Rule of Civil Procedure 68 amounting to $15,000. The Hescotts rejected the offer. They sought $324,750 to settle the case. When that suggested settlement was declined, the Hescotts opted to go to trial.

The Hescotts were awarded $5,000 by a jury because the City carried away the debris of their demolished residential property without notifying them first. The award resulted from the jury’s conclusion that the Hescotts’ Fourth Amendment right against unreasonable seizures had been violated when the city re-entered the property without the Hescotts’ consent or a court order. The jury rejected, however, the Hescotts’ inverse condemnation claim that the demolition of the residence was improper—they concluded that the house constituted a public safety risk which justified emergency demolition.

The precise question faced was this: may the City recover its attorney’s fees—as a part of its costs—after the Hescotts’ eventual jury award fell below the City’s previous offer of judgment? The Court concludes that the Hescotts were not entitled to an award of attorney’s fees.

“The question of who is responsible for the legal expense of litigating this case is an interesting one because the unique facts implicate both the Civil Rights Attorney’s Fees Award Act of 1976 (42 U.S.C. § 1988) and Federal Rule of Civil Procedure 68. Commonly referred to as simply § 1988, the Attorney’s Fees Award Act was largely intended to encourage the enforcement of civil rights laws ‘through the use of plaintiffs as private attorneys general.’ Rule 68, on the other hand, was designed ‘to promote settlement, rather than litigation.’ That is, ‘Rule 68 is designed to provide a disincentive for plaintiffs from continuing to litigate a case after being presented with a reasonable offer.'”

Objector brought action in lieu of prerogative writs, challenging township zoning board’s decision to grant conditional use variance allowing property owner to convert existing building into a for-profit health club.

The Supreme Court of New Jersey held that:

• Property owner was not required to demonstrate absence of negative criteria with enhanced quality of proofs, and
• Township could grant variance.

Property owner seeking conditional use variance was not required to demonstrate absence of negative criteria with enhanced quality of proofs, such as would be required for obtaining variance for prohibited use.  Analyses of use variances and conditional use variances were fundamentally different, since a use variance would proceed in the context of a use that the governing body had prohibited, whereas the conditional use variance proceeded in the context of a use that, if it complied with certain conditions, was permitted.

In determining whether a property owner is entitled to a conditional use variance, the question is whether, in light of the failure to meet one of the conditions fixed by the zoning ordinance, the use is reconcilable with the municipality’s legislative determination that the condition should be imposed on all conditional uses in that zoning district.

In determining whether a property owner is entitled to a conditional use variance, the weighing is entirely different from that demanded for a use variance because the governing body has not declared that the use is prohibited but, instead, has elected to permit the use in accordance with certain expressed conditions; accordingly, the focus of the analysis is on the effect of non-compliance with one of the conditions as it relates to the overall zone plan.

Owners of oceanfront cottages brought § 1983 action in state court against town, alleging that, in declaring cottages nuisances, town violated owners’ constitutional rights. Town removed action to federal court. The United States District Court for the Eastern District of North Carolina granted summary judgment to town on owners’ procedural due process and equal protection claims and dismissed owners’ takings claim as unripe. Owners appealed.

The Court of Appeals held that:

• Town did not deprive owners of their procedural due process rights;
• Town did not violate owners’ equal protection rights; and
• By removing action, town waived requirement that a plaintiff must seek compensation from the state before bringing a takings claim in federal court.

Town did not deprive oceanfront cottage owners of their property interest with respect to their right to use and enjoy cottages as part fee simple ownership, in connection with town declaring cottages to be nuisances, and town thus did not violate owners’ procedural due process rights on such basis, since town’s regulatory actions represented limitations on use of property that inhered in title itself.   Although town ultimately lacked authority to declare cottages to be nuisances based on public trust doctrine, town’s actions to abate nuisance were reasonable uses of its police power that did nothing to deprive owners of any property right.

Owners of oceanfront cottages had property interest, protected by due process clause, in money that would be used to pay any fines imposed by town upon declaring cottages nuisances. Owners of oceanfront cottages had property interest, protected by due process clause, in money that would be used to pay any fines imposed by town upon declaring cottages nuisances.

After county housing authority terminated tenant’s housing assistance benefits, she appealed.

The Supreme Court held that the trial court lacked jurisdiction to review county housing authority’s decision to terminate tenant’s housing assistance benefits.

County housing authority was an agency of the state, but it was a public corporation and not a department or other administrative unit of the executive branch of state government, and thus the Administrative Agencies Practices Act (AAPA) did not provide for judicial review, and the housing authority was not operating the housing assistance program at the direction and supervision of a state executive agency.

City employee, who was raped by co-worker, brought action against city, alleging vicarious liability, negligent and reckless hiring and supervision, and employer intentional tort.

The Supreme Court of Ohio held that city failed to establish as matter of law that it was entitled to political–subdivision-tort immunity regarding employee’s intentional-tort claim.

To survive summary judgment, a plaintiff who alleges that her claim falls within Political Subdivision Tort Liability Act’s section providing exception to political–subdivision-tort immunity need only establish a genuine issue of material fact as to whether the plaintiff’s claims are causally related or causally connected to the plaintiff’s employment relationship with the political subdivision.

The Board of County Commissioners of Kay County, Oklahoma brought suit against the Federal Housing Finance Agency, as conservator for Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac), as well as against Fannie Mae and Freddie Mac (collectively, Defendants). Kay County sought to compel Defendants to pay a documentary stamp tax, i.e., a transfer tax, upon the sale of real estate located in Oklahoma.

Pursuant to certain federal exemption statutes, 12 U.S.C. §§ 1452(e), 1723a(c)(2), 4617(j)(1)-(2), the Defendants are exempt from all taxation, including the excise tax at issue here. Accordingly, Defendants’ motion to dismiss was be granted.