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SPECIALTY LAW - xxx, 2004 Environmental Law

Cases summarized in the xxx, 2004 issue of
Specialty Law Digest: Environmental Law.

GENERAL INDEX


Altendorf -- farmer's action against crop sprayer alleging failure to timely perform contractual agreement to spray his crops did not fall within those actions for which claimant must give statutory notice. Pratt v. Altendorf (N.D. 2005), 692 N.W.2d 115

bear hunts -- in absence of approved comprehensive policies, Fish and Game Council could not promulgate regulations authorizing bear hunt. U.S. Sportsmen's Alliance Foundation v. New Jersey Dep't of Envir. Prot. (N.J. 2005), 867 A.2d 1147

bridges -- South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management properly granted permit to build concrete bridge for vehicular traffic. S.C. Coastal Conservation League v. South Carolina Dep't of Health & Envir. Control (S.C. 2005), 610 S.E.2d 482

churches -- permanent injunction was properly issued enjoining church from using property "for church services or activities related to the Church or anything else other than commercial or light industrial purposes," and from using baptismal pool. Voice of Cornerstone Church Corp. v. Pizza Property Partners (Tex.App. 2005), No. 03-04-00173-CV

crop spraying -- farmer's action against crop sprayer alleging failure to timely perform contractual agreement to spray his crops did not fall within those actions for which claimant must give statutory notice. Pratt v. Altendorf (N.D. 2005), 692 N.W.2d 115

developments -- contemplated use of property for six single-family residential building lots was consistent with Enfield zoning regulations that had placed this property in residential zone. Rya Corp. v. Planning & Zoning Comm'n of Town of Enfield (Conn.App. 2005), 867 A.2d 97

-- evidence supported conclusion that there was no reasonable way for property owner to achieve permitted use without variance. Vigeant v. Town of Hudson (N.H. 2005), 867 A.2d 459

-- record confirmed Planning Board's findings that project was situated within zone that permits multifamily housing, as well as other more intense uses such as office space. Defreestville Area Neighborhood Ass'n, Inc. v. Planning Bd. of Town of North Greenbush (N.Y.App.Div. 2005), 790 N.Y.S.2d 737

docks -- remand would be ordered to U.S. Army Corps of Engineers so that it could prepare full EIS considering impact of reasonably foreseeable increases in tanker traffic. Ocean Advocates v. U.S. Army Corps of Engineers (C.A. 9, Wash. 2005), 402 F.3d 846

environmental clean-up -- property owner's damages were limited to those costs incurred to fully delineate vertical and horizontal extent of remaining contamination of property or costs paid to environmental remediation company for errant delineation, whichever was less, but did not include those costs incurred for additional clean-up of site. Woodland Oil Co. v. Otwell Mawby, P.C. (Mich.App. 2005), No. 249246

environmental impact reports -- further environmental study of completed sewer and water project would not provide any meaningful benefits. San Joaquin Raptor Rescue Ctr. v. City of Merced (Cal.App. 2005), No. F045595

environmental impact statements -- remand would be ordered to U.S. Army Corps of Engineers so that it could prepare full EIS considering impact of reasonably foreseeable increases in tanker traffic. Ocean Advocates v. U.S. Army Corps of Engineers (C.A. 9, Wash. 2005), 402 F.3d 846

fishing rights -- no merit to Skokomish Indian Tribe's claim that City had infringed upon its implied water rights in Skokomish River by impeding its ability to fish. Skokomish Indian Tribe v. United States (C.A. 9, Wash. 2005), 401 F.3d 979

fungicides -- farmer's action against crop sprayer alleging failure to timely perform contractual agreement to spray his crops did not fall within those actions for which claimant must give statutory notice. Pratt v. Altendorf (N.D. 2005), 692 N.W.2d 115

grading -- property owner was required to obtain site plan/site development permit before being issued grading permit. Hafen v. County of Orange (Cal.App. 2005), 26 Cal.Rptr.3d 584

hazardous wastes -- policy's pollution exclusion barred coverage for environmental contamination due to intentional nature of dumping. Travelers Cas. & Surety Co. v. Ribi Immunochen Research, Inc. (Mont. 2005), 108 P.3d 469

historic buildings -- property owner's application to raze building in East Row Historic Preservation District was properly denied. Newberry v. City of Newport (Ky.App. 2005), No. 2004-CA-000223-MR

historic districts -- issue as to whether city's decision to authorize construction of several commercial parking structures in Alphabet Historic District in Northwest District of city, was "program to protect historic resources." N.W.D.A. v. City of Portland (Ore.App. 2005), No. A126345

historical landmarks -- record disclosed that before issuing its negative declaration respecting environmental impact of proposed property transfer, lead agency took required "hard look" at relevant areas of environmental concern and made reasoned elaboration of its findings. Landmark West! v. Burden (N.Y.App.Div. 2005), 790 N.Y.S.2d 107

honey bees -- land possessor with actual knowledge or notice of foraging honey bees on property came under duty of reasonable care in application of pesticides. Anderson v. State (Minn. 2005), 693 N.W.2d 181

hunting -- in absence of approved comprehensive policies, Fish and Game Council could not promulgate regulations authorizing bear hunt. U.S. Sportsmen's Alliance Foundation v. New Jersey Dep't of Envir. Prot. (N.J. 2005), 867 A.2d 1147

hydroelectric dam projects -- conditions placed on dam projects upheld where water that left river and ran through dam before returning constituted discharge. S.D. Warren Co. v. Board of Envir. Prot. (Me. 2005), 868 A.2d 210

insurance -- policy's pollution exclusion barred coverage for environmental contamination due to intentional nature of dumping. Travelers Cas. & Surety Co. v. Ribi Immunochen Research, Inc. (Mont. 2005), 108 P.3d 469

-- pollution exclusion unambiguously excluded damages "arising from" escape, dispersal, discharge, or release of fuel oil. State Farm Fire & Cas. Co. v. Acuity, A Mut. Co. (Wis.App. 2005), No. 04-1621

-- trial court did not err in concluding that insurer properly rejected tenders of defense based on pollution exclusion contained in its commercial general liability policy. Garamendi v. Golden Eagle Ins. Co. (Cal.App. 2005), 25 Cal.Rptr.3d 642

-- trial court properly declared that insurer had duty to defend company in underlying litigation for liability resulting from pipeline oil leak. Griffith Oil Co., Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA. (N.Y.App.Div. 2005), No. CA 04-00861

lakes -- repair of dam ordered so that it impounds lake with normal pool elevation of 1141 MSL. Forsyth County v. Martin (Ga. 2005), 610 S.E.2d 512

-- trial court properly denied environmental group's request for preliminary injunction to prevent implementation of plan to lower water level of Lake Bistineau. Lake Bistineau Preservation Society, Inc. v. Wildlife and Fisheries Comm'n of State of Louisiana (La.App. 2005), 895 So.2d 821

landfill fees -- Environmental Hearing Board erred in finding that landfill operator's use of foundry sand as alternate daily cover (ADC) was subject to $4 per ton fee under 27 Pa. C.S. Section 6301(a). Joseph J. Brunner, Inc. v. Dep't of Environmental Protection (Pa.Cmwlth. 2005), No. 2081 C.D. 2004

landfills -- policy's pollution exclusion barred coverage for environmental contamination due to intentional nature of dumping. Travelers Cas. & Surety Co. v. Ribi Immunochen Research, Inc. (Mont. 2005), 108 P.3d 469

nuclear wastes -- State of Nevada was not entitled to grant pursuant to section 116 of Nuclear Waste Policy Act. State v. Department of Energy (D.C.App. 2005), 400 F.3d 9

oil spills -- pollution exclusion unambiguously excluded damages "arising from" escape, dispersal, discharge, or release of fuel oil. State Farm Fire & Cas. Co. v. Acuity, A Mut. Co. (Wis.App. 2005), No. 04-1621

-- trial court properly declared that insurer had duty to defend company in underlying litigation for liability resulting from pipeline oil leak. Griffith Oil Co., Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA. (N.Y.App.Div. 2005), No. CA 04-00861

permits -- common pleas court abused its discretion when it affirmed City Council's decision denying property owner's application to build single family home on portion of Block A. Marsillo v. Stow City Council (Ohio App. 2005), 2005 -Ohio- 473

-- conditions placed on dam projects upheld where water that left river and ran through dam before returning constituted discharge. S.D. Warren Co. v. Board of Envir. Prot. (Me. 2005), 868 A.2d 210

-- property owner was required to obtain site plan/site development permit before being issued grading permit. Hafen v. County of Orange (Cal.App. 2005), 26 Cal.Rptr.3d 584

-- sale of tract was not subdivision and therefore was not subject to provisions in Sewage Facilities Act and Ordinance 108 relating to proposed subdivisions and land developments. In re Sharon Township (Pa.Cmwlth. 2005), No. 2040 C.D. 2004

-- South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management properly granted permit to build concrete bridge for vehicular traffic. S.C. Coastal Conservation League v. South Carolina Dep't of Health & Envir. Control (S.C. 2005), 610 S.E.2d 482

-- trial court erred in upholding Trumbull County Board of Health's issuance of off-lot household sewage disposal system permits to applicants. Environmental Protection Agency v. Trumbull County Bd. of Health (Ohio App. 2005), 2005 -Ohio-410

pesticides -- land possessor with actual knowledge or notice of foraging honey bees on property came under duty of reasonable care in application of pesticides. Anderson v. State (Minn. 2005), 693 N.W.2d 181

remediation -- property owner's damages were limited to those costs incurred to fully delineate vertical and horizontal extent of remaining contamination of property or costs paid to environmental remediation company for errant delineation, whichever was less, but did not include those costs incurred for additional clean-up of site. Woodland Oil Co. v. Otwell Mawby, P.C. (Mich.App. 2005), No. 249246

restrictive covenants -- permanent injunction was properly issued enjoining church from using property "for church services or activities related to the Church or anything else other than commercial or light industrial purposes," and from using baptismal pool. Voice of Cornerstone Church Corp. v. Pizza Property Partners (Tex.App. 2005), No. 03-04-00173-CV

rivers -- no merit to Skokomish Indian Tribe's claim that City had infringed upon its implied water rights in Skokomish River by impeding its ability to fish. Skokomish Indian Tribe v. United States (C.A. 9, Wash. 2005), 401 F.3d 979

sewage disposal systems -- trial court erred in upholding Trumbull County Board of Health's issuance of off-lot household sewage disposal system permits to applicants. Environmental Protection Agency v. Trumbull County Bd. of Health (Ohio App. 2005), 2005 -Ohio-410

sewer lines -- further environmental study of completed sewer and water project would not provide any meaningful benefits. San Joaquin Raptor Rescue Ctr. v. City of Merced (Cal.App. 2005), No. F045595

sewers -- city ordinance creating original Utility Local Improvement District (ULID) did not promise to reserve sewer hookup capacity for ULID properties. Funk v. City of Duvall, Washington (Wash.App. 2005), 109 P.3d 844

-- sale of tract was not subdivision and therefore was not subject to provisions in Sewage Facilities Act and Ordinance 108 relating to proposed subdivisions and land developments. In re Sharon Township (Pa.Cmwlth. 2005), No. 2040 C.D. 2004

silica dust -- trial court did not err in concluding that insurer properly rejected tenders of defense based on pollution exclusion contained in its commercial general liability policy. Garamendi v. Golden Eagle Ins. Co. (Cal.App. 2005), 25 Cal.Rptr.3d 642

solid waste -- City's ordinances were consistent with Washington's statutory scheme for regulating solid waste and did not contravene state constitution. Ventenbergs v. City of Seattle (Wash.App. 20005), No. 53920-5-I

tanker traffic -- remand would be ordered to U.S. Army Corps of Engineers so that it could prepare full EIS considering impact of reasonably foreseeable increases in tanker traffic. Ocean Advocates v. U.S. Army Corps of Engineers (C.A. 9, Wash. 2005), 402 F.3d 846

telecommunication towers -- installation of private antennae on two state-owned telecommunications towers was exempt from local zoning regulation. Crown Communication New York, Inc. v. Dept. of Transportation of State of New York (N.Y. 2004), No. 7

U.S. Army Corps of Engineers -- remand would be ordered to U.S. Army Corps of Engineers so that it could prepare full EIS considering impact of reasonably foreseeable increases in tanker traffic. Ocean Advocates v. U.S. Army Corps of Engineers (C.A. 9, Wash. 2005), 402 F.3d 846

water -- Environmental Hearing Board lacked jurisdiction over appeal from letter issued by Department of Environmental Protection refusing to prosecute claim. Commonwealth v. Schneiderwind (Pa.Cmwlth. 2005), No. 922 C.D. 2003

-- no merit to Skokomish Indian Tribe's claim that City had infringed upon its implied water rights in Skokomish River by impeding its ability to fish. Skokomish Indian Tribe v. United States (C.A. 9, Wash. 2005), 401 F.3d 979

-- repair of dam ordered so that it impounds lake with normal pool elevation of 1141 MSL. Forsyth County v. Martin (Ga. 2005), 610 S.E.2d 512

-- trial court properly denied environmental group's request for preliminary injunction to prevent implementation of plan to lower water level of Lake Bistineau. Lake Bistineau Preservation Society, Inc. v. Wildlife and Fisheries Comm'n of State of Louisiana (La.App. 2005), 895 So.2d 821

water pollution -- conditions placed on dam projects upheld where water that left river and ran through dam before returning constituted discharge. S.D. Warren Co. v. Board of Envir. Prot. (Me. 2005), 868 A.2d 210

wetlands -- common pleas court abused its discretion when it affirmed City Council's decision denying property owner's application to build single family home on portion of Block A. Marsillo v. Stow City Council (Ohio App. 2005), 2005 -Ohio- 473

-- evidence supported conclusion that there was no reasonable way for property owner to achieve permitted use without variance. Vigeant v. Town of Hudson (N.H. 2005), 867 A.2d 459

-- property owners were required to exhaust their administrative remedies prior to bringing action alleging that designation of their property as wetlands constituted taking. Helnore v. Dep't of Natural Resources, State (Wis.App. 2005), 694 N.W.2d 730

wildlife -- in absence of approved comprehensive policies, Fish and Game Council could not promulgate regulations authorizing bear hunt. U.S. Sportsmen's Alliance Foundation v. New Jersey Dep't of Envir. Prot. (N.J. 2005), 867 A.2d 1147

wireless services -- material questions of fact remain as to whether Board's decision effectively prohibited provision of personal wireless services under TCA. Metropcs, Inc. v. City & County of San Francisco (C.A. 9, Cal. 2005), No. 03-16759

zoning -- contemplated use of property for six single-family residential building lots was consistent with Enfield zoning regulations that had placed this property in residential zone. Rya Corp. v. Planning & Zoning Comm'n of Town of Enfield (Conn.App. 2005), 867 A.2d 97

-- evidence supported conclusion that there was no reasonable way for property owner to achieve permitted use without variance. Vigeant v. Town of Hudson (N.H. 2005), 867 A.2d 459

-- installation of private antennae on two state-owned telecommunications towers was exempt from local zoning regulation. Crown Communication New York, Inc. v. Dept. of Transportation of State of New York (N.Y. 2004), No. 7

-- record confirmed Planning Board's findings that project was situated within zone that permits multifamily housing, as well as other more intense uses such as office space. Defreestville Area Neighborhood Ass'n, Inc. v. Planning Bd. of Town of North Greenbush (N.Y.App.Div. 2005), 790 N.Y.S.2d 737



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