Justia Construction Law Opinion Summaries

Articles Posted in Zoning, Planning & Land Use
by
In 2005, John Block purchased property in Lewiston from Jack Streibick to develop. Block submitted an application to resubdivide the property into three residential lots, which Lewiston approved. Prior to Block's purchase of the property, Lewiston issued two separate permits to Streibick allowing him to place and grade fill in the area of those lots. In 2006, Block received permits from Lewiston to construct homes on each of the three lots. During construction of the homes, Block hired engineering firms to test compaction of the finished grade for the footings on the lots. Following the construction of the homes, Lewiston issued Block certificates of occupancy for each of the homes after conducting inspections that found the homes to be constructed in accordance with applicable building codes and standards. In April 2007, Block sold the home and property at 159 Marine View Drive. In November of that year, the owner reported a crack in the home's basement. Around that same time, settling was observed at the other two properties. In early December 2007, Block repurchased 159 from the owners. He also consulted with engineers regarding options for immediate repair to the homes. As early as February 2009, further settling problems were reported at the properties. After Lewiston inspected the properties in May following a gas leak at 153, it posted notice that the residential structures on 153 and 159 were unsafe to occupy. Block ultimately filed a Notice of Claim for Damages with Lewiston that also named City Engineer Lowell Cutshaw as a defendant, but did not effectuate process on Lewiston and Cutshaw until ninety days had elapsed from the date he had filed the Notice of Claim. The City defendants filed a motion for summary judgment, arguing that Block's claims should be dismissed because he failed to timely file a Notice of Claim with Lewiston. This first motion for summary judgment was denied because a question of material fact existed concerning whether Block reasonably should have discovered his claim against Lewiston prior to 2009. The City defendants filed a second motion for summary judgment seeking dismissal of all of Block's claims against them, arguing that they were immune from liability for all of these claims under the Idaho Tort Claims Act (ITCA) and that Block could not establish that he was owed a duty. The district court granted this second summary judgment motion dismissing Block's claims based on the application of the economic loss rule. The court also held that immunity under the ITCA and failure to establish a duty provided alternate grounds for dismissal of Block's claims. Block appealed on the issue of immunity. Finding no reversible error as to that issue, the Supreme Court affirmed the district court's decision. View "Block v. City of Lewiston" on Justia Law

by
After falling down a staircase at a bar and restaurant in Boston, a college student died. Plaintiffs, the student's parents, filed this action against the restaurant and trustees of a trust that owned the land and buildings within which the restaurant operated. The complaint alleged claims against the restaurant and trustees for wrongful death and for violation of Mass. Gen. Laws ch. 93A. Plaintiffs based their chapter 93A claim on Defendants' alleged building code violations, which Plaintiffs claimed constituted unfair or deceptive conduct. A jury returned a verdict for Defendants on Plaintiffs' wrongful death claims, and the trial judge found in favor of Plaintiffs on the chapter 93A claim, finding that the student fell and suffered a fatal injury because the stairs were in an unsafe, defective condition having been rebuilt without necessary building permits. The Supreme Court vacated the judgment, holding that Plaintiffs were entitled to recover on their chapter 93A claim but that the judge erred in her calculation and award of damages. Remanded. View "Klairmont v. Gainsboro Rest., Inc." on Justia Law

by
Caliber Builders, Inc., sought to develop a parcel of land commonly referred to as "Golden Orchards." A small portion of the parcel is in Washington Township, but the bulk of it is in the Borough of Hillsdale, where it is included in the residential (R-2) zone. Intending of constructing an age-restricted housing development, which was a conditional use in the R-2 zone, Caliber submitted a preliminary site plan application to the Hillsdale Planning Board. Plaintiff Northgate Condominium Association, Inc., manages and operates a previously-existing condominium community built on an adjacent parcel of land in Washington Township. In this appeal, the issue before the Supreme Court was whether the lot designations contained in the notice of public hearings on an application for a conditional use approval sufficiently complied with the provisions of the Municipal Land Use Law to confer jurisdiction on the Planning Board, and whether the project design of the internal roadway complied with requirements of the Residential Site Improvement Standards. Upon review, the Supreme Court concluded that the developer's notice of public hearings, although using lot numbers that were not included on the official tax map, did not misidentify the lot to be developed, complied with the provisions of the Municipal Land Use Law, and conferred jurisdiction on the Planning Board. "Plaintiff fail[ed] to point to anything in the record supporting its claim that the project design of the internal roadway did not comply with density requirements under the Residential Site Improvement Standards." View "Northgate Condominium Association, Inc. v. Borough of Hillsdale Planning Board" on Justia Law

by
Plaintiff brought this suit against the City and County of Honolulu and the State, challenging the approval of a rail project and arguing that state law required that an archaeological inventory survey be completed prior to any approval or commencement of the project. The circuit court granted summary judgment in favor of the City and State on all of Plaintiff's claims. The Supreme Court vacated the circuit court's judgment on Plaintiff's claims that challenged the rail project under Haw. Rev. Stat. 6E and remanded. Plaintiff subsequently requested that the Supreme Court award $255,158 in attorney's fees and $2,510 in costs against the City and State for work performed in the trial court. The Supreme Court (1) granted Plaintiff's request for appellate attorney's fees and costs against the City in the amount of $41,192 in attorney's fees and $343 in costs; (2) and denied Plaintiff's request for trial level fees and costs without prejudice, as Plaintiff's request for fees and costs attributable to work performed at the trial level was more properly within the trial court's discretion. View "Kaleikini v. Yoshioka" on Justia Law

by
In 1987, Waterfront purchased 5.3 acres in Philadelphia’s Central Riverfront District, zoned G-2 industrial. In exchange for rezoning to C-4 commercial, for a mixed-use, high-rise project, Waterfront agreed to restrictive covenants. When financing became possible in 2005, Waterfront obtained a permit for demolishing existing structures and constructing a 28-story apartment tower and entered into a financing agreement with a construction start date of February 2006. Waterfront had to postpone construction. In March 2006, the city extended to the site a zoning overlay with a height restriction of 65 feet and a width restriction of 70 feet. Waterfront alleged mistake; that the area councilman admitted that inclusion of the site was a mistake; and that Mayor Street stated that he would not have signed it had he known that the height restriction applied to the site. Waterfront unsuccessfully sought repeal, but never applied for a permit under the ordinance and did not seek a variance. Waterfront filed suit. In 2010 the city rescinded application of the height restriction. The district court held that the rescission mooted federal constitutional claims, denied Waterfront’s motion to amend to attack the width restriction, and granted the city summary judgment on all other claims. The Third Circuit affirmed. View "CMR D.N. Corp. v. City of Philadelphia" on Justia Law

by
Petitioner, a developer, helped construct a planned development (the "community"). The community HOA sued the developers, sellers, and builders of the development, including Petitioner, on behalf of the individual homeowners, alleging construction-defect-based claims for breach of implied and express warranties and negligence. Thereafter, the community HOA filed a motion for the district court to determine that its claims satisfied the class action requirements of Nev. R. Civ. P. 23. The district court concluded that the HOA did not need to satisfy the requirements of Rule 23 and thus allowed the action to proceed without conducting a class action analysis. Petitioner sought a writ of mandamus or prohibition, claiming that the district court acted arbitrarily and capriciously by refusing to undertake a class action analysis. The Supreme Court granted Petitioner's petition to the extent that it directed the district court to analyze the Rule 23 factors in this case. In so doing, the Court clarified the application of D.R. Horton v. District Court when a homeowners' association seeks to litigate construction-defect claims on behalf of its members under Nev. Rev. Stat. 116.3102(1)(d). View "Beazer Homes Holding Corp. v. Dist. Court " on Justia Law

by
This case was a challenge to the State of Washington's Building Code brought by the Building Industry Association of Washington (BIAW) along with individual builders and contractors. The impetus for this challenge was the State's 2009 requirement that new building construction must meet heightened energy conservation goals. At issue was the Energy Policy and Conservation Act's (EPCA) preemption-exemption provision, which expressly preempts state standards requiring greater efficiency than federal standards but exempts from preemption state building codes promoting energy efficiency, so long as those codes meet statutory conditions. Plaintiffs argued that the Building Code did not satisfy EPCA's conditions for exemption. The district court held that Washington had satisfied EPCA's conditions and therefore was not preempted. The Ninth Circuit affirmed, holding that the Building Code satisfied the conditions Congress set forth in the EPCA for exemption from federal preemption. View "Bldg. Ind. Ass'n of Wash. v. Wash. State Bldg. Code" on Justia Law

by
Lake Cabin Development entered into two separate written agreements with the Robert Hurly and John Hurly families to purchase their respective properties. Pursuant to an agreement, Lake Cabin provided Robert Hurly with a $250,000 option payment. After public opposition to Lake Cabin's proposed development on the land forced Lake Cabin to extend the deadline on the closing date of its agreement with the Hurlys, Lake Cabin declared the contract to be null and void and demanded return of its option payment. Both Hurly families brought separate breach of contract actions. The district court concluded that Robert Hurly was required to refund the $250,000 option payment to Lake Cabin because there was never an enforceable contract between the parties. The Supreme Court reversed, holding (1) the district court erred in determining that the parties had not entered into a binding agreement, and (2) Lake Cabin was not entitled to a refund of the option payment. Remanded. View "Hurly v. Lake Cabin Dev., LLC" on Justia Law

by
A dispute arose between Cascade Development, Inc. and the City of Bozeman. On December 7, 2007, Cascade filed a complaint alleging various claims against Bozeman. A summons and complaint were issued by the clerk's office on the same day, but service was not attempted by Cascade for nearly three years. On December 2, 2010, a professional process server took the summons and complaint to the city attorney's office, and a deputy city attorney took the papers. Bozeman filed a motion to quash service and dismiss the complaint, which the district court granted. The Supreme Court affirmed, holding (1) the district court was correct in determining that Cascade had not validly served its summons and complaint on Bozeman pursuant to Mont. R. Civ. P. 4(t), as the deputy city attorney had neither implied authority nor apparent authority to accept service of process on behalf of Bozeman; and (2) the district court was correct in concluding that Bozeman was not estopped from asserting defective service of process. View "Cascade Dev., Inc. v. City of Bozeman" on Justia Law

by
Albemarle County enacted a zoning ordinance governing construction on slopes within the county. Under the waiver provision of the county code, the planning commission was authorized to grant a waiver from the restrictions otherwise imposed by the ordinance. Kent Sinclair, who owned property in the county, filed a complaint seeking, inter alia, a declaratory judgment that the county exceeded the power delegated to it by the General Assembly in violation of the Dillon Rule because its procedure for considering waiver applications was not authorized by state law. The circuit court granted summary judgment against Sinclair. The Supreme Court reversed the circuit court's judgment that the decision to grant or deny waiver applications may be delegated to the planning commission, as the delegation was legislative in nature and not authorized by state law. Accordingly, in enacting the waiver provision, the county exceeded its authority from the General Assembly in violation of the Dillon Rule and the waiver provision was void. Remanded. View "Sinclair v. New Cingular Wireless PCS, LLC" on Justia Law