Latest 4 Cases This Week: International Outdoor, Inc. v. City of Troy (6th Cir.), Nanouk v. United States (9th Cir.), City of Brentwood v. ...

Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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International Outdoor, Inc. v. City of Troy

Court: US Court of Appeals for the Sixth Circuit

Dockets: 19-1151, 19-1399

Opinion Date: September 4, 2020

Judge: Danny Julian Boggs

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Real Estate & Property Law, Zoning, Planning & Land Use

International, an outdoor advertising company, sought to erect digital billboards in two separate locations within the City of Troy. International's permit and variance applications were denied. International filed suit (42 U.S.C. 1983), alleging that the ordinance granted unfettered discretion and contained unconstitutional content-based restrictions as it exempted from permit requirements certain categories of signs, such as flags and “temporary signs.” During the litigation, Troy amended the Ordinance. The Sixth Circuit remanded. The original Ordinance imposed a prior restraint because the right to display a sign that did not come within an exception as a flag or as a “temporary sign” depended on obtaining either a permit or a variance. The standards for granting a variance contained multiple vague, undefined criteria, such as “public interest,” “general purpose and intent,” “adversely affect[ing],” and “hardship.” Even meeting these criteria did not guarantee a variance; the Board retained discretion to deny it. The amendment, however, rendered the action for declaratory and injunctive relief moot. The severability of the variance provisions rendered moot its claim for damages. The court reinstated a claim that the ordinance imposed content-based restrictions without a compelling government interest for reconsideration under the correct standard. A regulation of commercial speech that is not content-neutral is still subject to strict scrutiny.

Nanouk v. United States

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-35116

Opinion Date: September 4, 2020

Judge: Paul Jeffrey Watford

Areas of Law: Environmental Law, Native American Law, Personal Injury, Real Estate & Property Law, Zoning, Planning & Land Use

Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems. The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990.

City of Brentwood v. Department of Finance

Court: California Courts of Appeal

Docket: C086344(Third Appellate District)

Opinion Date: September 9, 2020

Judge: Vance W. Raye

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

The City of Brentwood (Brentwood) sought reimbursement for construction costs incurred in five redevelopment projects. In City of Brentwood v. Campbell, 237 Cal.App.4th 488 (2015), the Court of Appeal rejected Brentwood’s contention that a statutory exception to the redevelopment dissolution statutes allowed the city to retain funds previously reimbursed under five public improvement agreements (PIA’s) between Brentwood and its former redevelopment agency (RDA). Here, Brentwood sought payment for expenses as yet unreimbursed, contending that the PIA’s were “enforceable obligations” under Health & Safety Code section 34191.4 (b)(1), a 2015 amendment to the dissolution statutes. Brentwood contended that third party construction contracts for the five projects - all but a small fraction of which preceded execution of the PIA’s - were “under” the PIA’s within the meaning of section 34191.4 (b)(2)(C)(i). The trial court ruled that “[i]n order for the contracts to have been 'under’ the PIAs and on behalf of the RDA, the PIAs needed to already exist.” Similarly, Brentwood contended that the PIA’s ratified and incorporated the prior cooperation agreement and findings resolutions that predated third party construction contracts. The Court of Appeal determined no agreement or resolution prior to the PIA’s committed the RDA to reimburse Brentwood for the construction costs of the five redevelopment projects. "Ratification cannot import the terms of the PIA’s into the cooperation agreement and findings resolutions." The Court therefore affirmed denial of reimbursement.

In the Matter of the Enlargement & Extension of the Municipal Boundaries of the City of Petal, Mississippi

Court: Supreme Court of Mississippi

Citation: 2019-AN-00639-SCT

Opinion Date: September 10, 2020

Judge: Maxwell

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

The City of Petal’s March 30, 2017 Amended Annexation Ordinance sought to add six square miles, spread across five different locations, to the City’s limits. The proposed annexation would have also added 296 residents to the City. For the Special Chancellor to approve the City’s petition to ratify, the City had to prove the annexation was reasonable. The chancellor found the City did not fully meet that burden. After trial, the chancellor found a modified annexation acceptable, determining the City already had sufficient available land within its current limits for residential and commercial development. And he found it more beneficial and reasonable for the City to update zoning and improve infrastructure than to approve annexation of an industrial area and two mostly undeveloped and unpopulated areas. There were two smaller proposed areas the judge deemed reasonable for annexation. The City’s last annexation, finalized in 2003, resulted in some parcels or tracts of land erroneously split between the City and Forrest County. So the chancellor granted the City's petition (as modified) to correct those errors. The City appealed. Finding the chancellor's decision supported by substantial and credible evidence, the Mississippi Supreme Court affirmed his decision.