Add to the end of “Preemption of Local CAFO Restrictions,” p. 422: In contrast, the Michigan Court of Appeals affirmed a state rule requiring all CAFOs to have discharge permits irrespective of whether they actually discharge pollutants. The Michigan Department of Environmental Quality began requiring discharge permits in 2003 to prevent manure fertilizer from draining into waterways. Mich. Farm Bureau v. Mich. Dep’t of Envtl. Quality, 292 Mich. App. 106 (2011).
Add to the end of Preemption of Local CAFO Restrictions before “Sources” paragraph, P. 423: For a helpful article about CAFO regulation at the local level, see A. Kapplan, CAFOs:Five Essential Tools for Local Regulation, American Bar Association State and Local Law News, Vol. 35, No. 4 (Summer 2012). In it, the author explains why local regulations are necessary:
Concentrated Animal Feed Operations (CAFOs), as defined by the Environmental Protection Agency, are lots or facilities where animals are confined for 45 or more days of the year and vegetation is not sustained during the normal growing season. Both federal and state governments regulate CAFOs. Local governments, however, rarely pass regulations to protect their communities. Yet, a CAFO community endures the highest burden.
CAFOs place heavy burdens on their neighbors. Their communities are often the victims of disturbing odors, sights, and traffic patterns. CAFOs result in soil mismanagement and water contamination. Manure is frequently stored in large lagoons, which may contaminate surface and groundwater. An Iowa study noted that ammonia levels in the air around many CAFOs exceeds health standards. And the uses typically increase vehicle traffic as well. The cumulative result is increased nuisance complaints and decreased property values near CAFOs.
Immediately after, add before Sources P. 423: For more information on CAFO community impact, visit the Center for Disease Control’s website at http://www.cdc.gov/nceh/ehs/Topics/CAFO.htm.
Add to end of [1] Wetlands, P. 427:
For a discussion on defining wetland designation as a land use control, see Town of Newington v. State, 34 A.3d 1206 (NH 2011). There, the court found that designation of prime wetlands is in fact a land use control and as such belonged exclusively to Pease Air Force Base which by statute has “exclusive jurisdiction in adopting and establishing land use control” for its property.
NOTES AND QUESTIONS
Add to end of Note 1, P. 428:
In April, 2011, the EPA and U.S. Army Corps of Engineers published new proposed guidance entitled, “Clean Water Protection Guidance,” on the government’s authority to regulate wetlands. Its adoption would significantly expand Clean Water Act federal jurisdiction over millions of acres of property and supersede both the 2003 Joint Memorandum and 2008 Joint Guidance memo. To access more information on the proposed guidance visit the National Clean Water Network’s website at http://www.cleanwaternetwork.org/resources/wotus-guidance-press-releases-articles-and-factsheets.
Immediately after, add as new paragraph at the end of Note 1, P. 428:
For a recent discussion on the scope of “navigable waters” under the Clean Water Act, see Sackett v. E.P.A., 132 S. Ct. 1367 (2012). In Sackett, the U.S. Supreme Court was not resolving the dispute on the merits, but nevertheless included a historical overview of cases involving jurisdiction of the Clean Water Act stating, “The reader will be curious, however, to know what all the fuss is about.” The actual issue before the court was whether the petitioners could challenge an EPA compliance order under the Administrative Procedure Act (“APA”); whether the compliance order constituted a “final agency action for which there is no other adequate remedy in court.” The court found that the compliance order was a “final agency action” and that the Clean Water Act did not “preclude judicial review” under the APA.
The opportunity to operate a mitigation bank may not be a valid interest under the Fifth Amendment takings clause. In Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012), Hearts Bluff alleged a takings claim when it was denied a permit for the creation of a mitigation bank on its property. The court denied the claim stating, “…we have rejected claims of a cognizable property interest in government programs where the government has discretionary authority to deny access to that program, where the alleged property is subject to pervasive government control, or where the property is entirely a product of government regulations.” Prior to Hearts Bluff’s purchase of the land, the administrators of the mitigation banks, the Army Corps of Engineers, informed Hearts Bluff that there were no impediments to a mitigation bank. Nevertheless, the court refused to recognize a valid property interest under the Fifth Amendment takings analysis stating that such a hope or expectation is merely a “collateral interest.” SeeZimmerman v. Hudson, 264 P.3d 989 (Kan. 2011) on pg. 454 for a similar finding.
Add to Notes and Questions, end of Note 4, P. 429:
The opportunity to operate a mitigation bank may not be a valid interest under the Fifth Amendment takings clause. In Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012), Hearts Bluff alleged a takings claim when it was denied a permit for the creation of a mitigation bank on its property. The court denied the claim stating, “…we have rejected claims of a cognizable property interest in government programs where the government has discretionary authority to deny access to that program, where the alleged property is subject to pervasive government control, or where the property is entirely a product of government regulations.” Prior to Hearts Bluff’s purchase of the land, the administrators of the mitigation banks, the Army Corps of Engineers, informed Hearts Bluff that there were no impediments to a mitigation bank. Nevertheless, the court refused to recognize a valid property interest under the Fifth Amendment takings analysis stating that such a hope or expectation is merely a “collateral interest.” SeeZimmerman v. Hudson, 264 P.3d 989 (Kan. 2011) on pg. 454 for a similar finding.
Add to Note 4, NOTES AND QUESTIONS, P. 429: The U.S. Supreme Court heard oral arguments on January 15, 2013, in a case involving development of wetlands and a takings claim. In Koontz v. St. Johns River Water Management District, No. 11-1447 (U.S. argued Jan. 15, 2013), Koontz applied for dredging permits that would result in the loss of 3.4 acres of wetlands with a Riparian Habitat Protection Zone in Florida. In order to mitigate the impact from the development, the District required Koontz to reduce the scale of his proposed development; restore and enhance at least 50 acres of wetlands on a parcel 4.5 miles away; or perform similar off-site mitigation. Koontz was also asked to perform on-site mitigation through a conservation easement or deed restriction on the rest of his property. Koontz rejected the District’s suggested mitigation measures and his permit application was denied.
Koontz filed suit in Florida state court alleging that the denial of the permit was a taking of his property. The case has made its way to the Supreme Court on Koontz’s appeal of the lower courts’ decisions. He is asking the Court to rule that the District is liable for a taking of real property requiring compensation. The District claims that Koontz could have collaborated with the District to find a mitigation alternative but refused to do so. The District also argues that the takings analysis of Nollan and Dolan do not apply to the denial of Koontz’s permit because no dedication of land was required and no damages were incurred.
Many local governments, property owners, and advocates are closely watching this case because it is one of the first takings cases the Supreme Court has taken since it decided Nollan and Dolan.
Add to end of Note 4, Notes and Questions, P. 429: A takings claim may be based on the economic effect on a portion of land purchased as a part of a larger parcel. In Lost Tree Village Corp. v. U.S., 707 F.3d 1286 (Fed. Cir. 2013), Lost Tree developed a residential community on approximately 1,300 acres of Florida’s mid-Atlantic coast. The property included five acres designated as Plat 57. Plat 57 was not developed at the same time as the remaining land because Plat 57 consisted of some submerged land, wetlands, and upland mounds.
In 2002, when Lost Tree learned it would obtain “mitigation credits,” it sought to develop Plat 57. The United States Army Corps of Engineers denied Lost Tree’s application for a §404 wetland fill permit because “less environmentally damaging alternatives were available and Lost Tree had had very reasonable use of its land.” Lost Tree filed suit asserting that it was deprived of its property and therefore entitled to just compensation.
The court reasoned that determining the definition of the relevant parcel of land is a critical part of a takings analysis because that definition determines the extent of the economic impact. The court recognized that a significant consideration is the economic expectations of the claimant with regard to the property. Here, Lost Tree treated Plat 57 as an economic unit separate from the other land it had purchased. As a result the court concluded that “the mere fact that the properties are commonly owned and located in the same vicinity is an insufficient basis on which to find they constitute a single parcel for purposes of the takings analysis” and therefore, the relevant parcel for the takings analysis was Plat 57 alone.
Floodplain Regulation
Add to the end of Note 2, State legislation, on p. 434: Local ordinances may also govern development in the flood plain. In Town of Kirkwood v Ritter, 80 A.D. 3d 944, 915 N.Y.S. 2d 683 (3 Dept. 1/13/2011), the Town’s local law, enacted in accordance with FEMA’s National Flood Insurance Program to take advantage of incentives for adopting flood plain management measures, required property owners to obtain a flood plain development permit prior to making any “substantial improvement” to a structure in the designated area and further requires that owners receive a certificate of compliance before the structure is reoccupied. After a flood destroyed their property, defendants made improvements without obtaining the necessary permits, approvals and compliance certificate, and they claim that they did not have to obtain these because the work they did was not a “substantial improvement” that would trigger the application of the local law. Under the National Flood Insurance Program regulations, “substantial improvement” includes repairs that equal or exceed 50% of the pre-flood market value of the home.
Missouri Coalition for the Environment, The State of Missouri’s Floodplain Management Ten Years After the 1993 Flood
NOTES AND QUESTIONS
Add to end of Note 1, in NOTES AND QUESTIONS, P. 433:
FEMA encourages communities to enforce additional and more localized regulations beyond the minimum federal and state requirements because floodplain hazards vary greatly throughout communities. The NFIP currently requires communities to at least consider additional regulatory measures, and many have succeeded in adopting location restrictions, building requirements, safety requirements, and encroachment standards more tailored to their particular community needs. For a comprehensive guide to floodplain management, see FEMA’s Floodplain Management Requirements, A Study Guide and Desk Reference for Local Officials at http://www.fema.gov/plan/prevent/floodplain/fm_sg.shtm.
Add to paragraph 2 of Note 1, Notes and Questions, P. 433 after “See also a report by the Association of state floodplain managers, national flood programs and policies in review – 2007, which argues for strong state programs”:
See also A. Dan Tarlock, UnitedStates Flood Control Policy: The Incomplete Transition From the Illusion of Total Protection to Risk Management, 23 Duke Envtl. L. & Pol’y F. 151 (2012) (arguing for flood-management policies which adopt risk-management strategies with structural protections, more aggressive land use and building regulations).
Add to end of Note 1, in NOTES AND QUESTIONS, P. 433: On July 6, 2012, the President signed the Biggert Waters Flood Insurance Reform Act of 2012 extending and overhauling the National Flood Insurance Program. Biggert-Waters Flood Insurance Reform Act of 2012, Pub. L. No. 112-141, §§ 100201-100249, 126 Stat. 405. The Act makes changes to flood insurance, flood hazard mapping, grants, and the management of floodplains. The Act is designed to make NFIP more financially stable. For more information visit: http://www.fema.gov/national-flood-insurance-program/flood-insurance-reform-act-2012.
Add as paragraph 4 to Note 5, Notes and Questions, P. 435: A takings issue also arose in Arkansas Game and Fish Commission v. U.S., 133 S. Ct. 511 (2012), where the Arkansas Game and Fish Commission sued the U.S. for the uncompensated taking caused by flooding and timber damage when the Army Corps of Engineers released water from a dam that caused sustained flooding. The Supreme Court rejected any blanket temporary flooding exception to the Fifth Amendment takings clause and remanded the matter so that the Court’s previous takings analysis could be applied to the specific facts of the case.
Add as new note 6, making “Sources” note 7, P. 435: 6.Flood Control and the Common Enemy Doctrine: Some states recognize the common enemy doctrine, which defends against liability for damaging adjacent properties when a landowner disposes of unwanted surface waters. The Washington Supreme Court adopted the doctrine in Cass v. Dicks, 44 P. 113 (Wash. 1896), holding that, “surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy against which anyone may defend himself.” Recently in Lord v. Pierce County, 271 P.3d 944 (Wash. App. Div. 2 2012), a property owner argued that the doctrine should apply to his construction of a levee, exempting him from county flood control regulations and permitting requirements. The court refused to expand the doctrine holding that a landowner may only use it as a defense to liability.
A NOTE ON OVERLAY ZONES
Groundwater and Surface Water Resource Protection
NOTES AND QUESTIONS
Protecting Hillsides
The Problem
Add as new section after “Comprehensive Steep Slope” section, before “Sources” section, P. 445: Environmental Review Requirements: Some states require an environmental impact report (“EIR”) for proposed development. For an interesting case about the difficulties that can arise during hillside development, see Berkeley Hillside Preservation v. City of Berkeley, 137 Cal. Rptr. 3d 500 (Cal. App. 1st Dist. 2012); review granted and opinion superseded, 277 P.3d 742 (Cal. 2012). There, neighbors and appellants of respondent landowners challenged a denial of their petition to set aside the approval of use permits for respondents to build a large residence on their lot which was situated on a steep slope. The appellants argued that the proposed development was not categorically exempt under the California Environmental Quality Act (CEQA), and that there needed to be an EIR. A proposed development can be categorically exempt under CEQA, in that falls within a class of projects that have been determined not to have a significant impact on the environment thus eliminating the need for an EIR. However, an exception to a CEQA categorical exemption is when there are “unusual circumstances” which create a “reasonable possibility” that the activity will have a significant effect on the environment. The trial court understood the exception analysis as two separate inquiries: (1) whether there are unusual circumstances; and (2) whether there is reasonable possibility of a significant effect on the environment; the trial court concluded that there were no “unusual circumstances” and therefore the exception did not apply. However, the court disagreed with the lower court’s decision providing that when a proposed activity may have an effect on the environment, that characteristic is itself an unusual circumstance, thus requiring further environmental review.
Takings and Other Legal Issues
Coastal Zone Management
NOTES AND QUESTIONS
Sustainability
Add to the end of paragraph beginning “Sources” on p. 450
For additional information about integrating sustainable development, see Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, Salkin, Planning & Environmental Law, Vol. 63, p. 3 (March 2011) (http://ssrn.com/abstract=1774013).
Add to the end of “Sources,” P. 450: For an overview of strategies that have been used to increase to use of renewable energy, including land use regulations, see Patricia Salkin, The Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, 27 No. 2 J. of Land Use & Envtl. L. 339 (2012).
In February 2013 the EPA published a report which provides a list of land use and community design strategies that bring together smart growth, environmental justice, and equitable development principles. U.S. Environmental Protection Agency, Creating Equitable, Healthy, and Sustainable Communities: Strategies for Advancing Smart Growth, Environmental Justice, and Equitable Development (2013), available athttp://www.epa.gov/smartgrowth/equitable_development_report.htm.
Add to the end of “Sources” P. 451: Pg. 450:
For more information about addressing sustainability in the comprehensive plan, see Integrating Sustainability into the Comprehensive Plan. http://www.planning.org/pas/quicknotes/pdf/QN33.pdf
Add a new note on p. 456, immediately above “Sources”: Preemption Issues andClimate Change.
See American Electric Power Co., Inc., et al. v. Connecticut et al. 564 U.S. ____ (2011). The United States Supreme Court reaffirmed the EPA’s authority under the Clean Air Act to enforce any regulation regarding greenhouse gas emissions. The Court also held that States cannot use Federal common law nuisance claims to impose limits on greenhouse gas emissions as the EPA’s authority under the Clean Air Act displaces the Federal common law claim. The issue of whether State common law claims are also barred has yet to be determined. (http://www.supremecourt.gov/opinions/10pdf/10-174.pdf).
A 2009 amendment to Washington’s Building Energy Code promoted energy efficiency in new buildings. In enacting the new law, the state legislature stated that, “…energy efficiency is the cheapest, quickest, and cleanest way to meet rising energy needs, confront climate change and boost our economy.” In 2011, the Building Association of Washington filed suit against the Washington State Building Code Council claiming a portion of the 2009 amendment violated 42 U.S.C. § 6297 by imposing energy efficiency standards higher than those set by the federal government and should be preempted by Energy Policy and Conservation Act (EPCA). Building Industry Ass’n of Washington v. Washington State Building Code Council, 2011 U.S. Dist. LEXIS 12316. The Energy Policy and Conservation Act (EPCA) preemption exemption test contain seven requirements which must be met in order for a code to be exempt from preemption. 42 U.S.C. § 6297(f)(3). The court found the code to be compliant with the requirements of the EPCA and denied the movant’s motion for summary judgment.
But c.f.,The Air Conditioning, Heating & Refrigeration Institute v. City of Albuquerque unreported decision, Civ. No. 08-633 MV/RLP (9/30/2010) striking down Albuquerque’s new energy efficiency requirements, finding the prescriptive regulations were preempted by the EPCA. (http://lawoftheland.files.wordpress.com/2010/10/ahri.pdf).
