Justia U.S. 1st Circuit Court of Appeals Opinion SummariesArticles Posted in Zoning, Planning & Land Use
Green Mountain Realty Corp. v. Leonard
Green Mountain owns cellular phone towers and leases space to federally licensed providers of wireless telecommunications services, who mount antennae on the towers to service their cellular networks. Green Mountain entered into an agreement with an agency of the Commonwealth of Massachusetts to lease land in Milton, an unzoned triangular section, approximately 2,700 square feet, formed by the intersection of I-93 and the southbound on-ramp. Applications to the Town Zoning Board of Appeals and the Milton Conservation Commission were denied. Green Mountain challenged the decisions as not supported by "substantial evidence," as required by the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B)(iii); as constituting an "effective prohibition" on provision of wireless services in the area in violation of the TCA; and as violating Massachusetts state law. The district court granted summary judgment upholding the denials. The First Circuit affirmed with respect to the substantial evidence claims, but vacated in part. The district court did not adequately address evidence supporting the effective prohibition claim. View "Green Mountain Realty Corp. v. Leonard" on Justia Law
Upper Blackstone Water Pollution Abatement Dist. v. U.S. Envtl. Protection Agency
The Blackstone River runs from Worcester, Massachusetts into Rhode Island. It becomes the tidal Seekonk River, flows into the Providence River, and empties into Narragansett Bay. During the industrial revolution, textile mills lined the River. Heavy metals and industrial wastes accumulated behind impoundments and damaged its ecology. Massachusetts and Rhode Island seek to put the River to new economic and recreational uses including tourism, recreation, and commercial fishing, but, as population has increased, sewage processing has not kept up. Conditions have deteriorated for years, posing a threat to public health and commercial fishing. Congress designated the Blackstone River Valley as a National Heritage Corridor in 1986; the EPA formed the Narragansett Bay Project in the 1980s. Massachusetts and Rhode Island have listed the Blackstone River as "impaired" under the Clean Water Act, 33 U.S.C. 1313(d): Rhode Island has also listed the Seekonk and Providence Rivers and Narragansett Bay as impaired. The First Circuit upheld limitations imposed in a National Pollutant Discharge Elimination System permit on discharges from a Massachusetts sewage treatment plant. The plant's responsibility for serious pollution problems in important waterways is clear and cost considerations may not be considered in setting permit limits to assure compliance with state water quality standards.View "Upper Blackstone Water Pollution Abatement Dist. v. U.S. Envtl. Protection Agency" on Justia Law
Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv.
A three-mile public recreational trail runs through 32 acres owned by the state and is used, in part, to access the state-managed Scarborough Marsh Wildlife Management Area. In 1961 Maine purchased the land with federal funds under the Federal Aid in Wildlife Restoration Act, 16 U.S.C. 669-669k for the approved purpose of “waterfowl habitat, waterfowl management, and access to waterfowl hunting.” The state subsequently granted easements for sanitary pipelines and a town road and to private parties for access to adjoining property. An easement granted in 2005 allowed construction of a road over 766 feet of previously-restricted trail for access to a planned subdivision. Objectors sought injunctive and declaratory relief, alleging violations of the Wildlife Restoration Act, the National Environmental Policy Act, 42 U.S.C. 4321, and state law. The district court dismissed federal claims and declined to exercise supplemental jurisdiction over the state law claims. The First Circuit affirmed, first holding that the federal agency’s decision to not enforce the funding provisions of the WRA is within its discretion. The federal government did not grant the easements, so NEPA did not apply. View "Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv." on Justia Law
San Geronimo Caribe Project, Inc. v. Acevedo Vila
In 2000 the planning board approved a development and the developer began purchasing land. In 2002, the Department of Justice issued an opinion that the land could be sold without legislative action, although it was gained from the sea. Construction began; the developer invested $200 million. Because of protests, the legislature investigated and concluded that the developer lacked valid title. A 2007 Department of Justice opinion stated that the land belonged to the public domain. The governor suspended permits and froze construction. Pending a hearing, the developer filed a quiet title action. The Regulations and Permits Administration upheld suspension of construction. The Puerto Rico appeals court ordered the administration to hold an evidentiary hearing (which did not occur), but did not lift the stay on construction. The developer succeeded in its quiet title action; in 2008 construction resumed. The supreme court held that the developer's due process rights had been violated. The district court dismissed a suit under 42 U.S.C. 1983. The First Circuit affirmed. Although the plaintiff did state a procedural due process claim, the defendants are entitled to qualified immunity. The defendants were not on clear notice they they were required to hold a meaningful pre-deprivation hearing.
Downing/Salt Pond Partners, L.P. v. RI and Providence Plantations
Pursuant to a permit issued by the Rhode Island Coastal Resources Management Council (CRMC), the developer built 26 of 79 planned homes and installed infrastructure between 1992 and 2007. The Rhode Island Historic Preservation and Heritage Commission (HPHC) became interested in the site and recommended withdrawal of the permit or requiring a complete archaeological data recovery project. In 2009, after informal negotiations, the developer notified the HPHC that it would resume construction absent some response from the agencies. The developer resumed construction and a stop-work order issued. CRMC hearings are ongoing. The district court dismissed the developer's takings claims as unripe, rejecting an argument that the state litigation requirement was excused; that argument was foreclosed by a binding First Circuit holding that Rhode Island's procedures were available and adequate. The First Circuit affirmed, holding that the developer did not prove that state remedies were unavailable or inadequate.
Indus. Commc’n v. Slade
Three providers of wireless service filed suit under the Telecommunications Act, 47 U.S.C. 332(c), after the town denied one provider a variance for a telecommunications tower. The suit is still pending, but the town entered into a consent decree to allow the proposed 100-foot tower without further hearings. Over objections by neighboring owners, the district court approved the agreement. The First Circuit vacated and remanded, holding that the neighbors cannot prevent the town from abandoning its defense and settling, but did have standing to oppose the entry of the consent order, based on their interest in enforcement of zoning laws.