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Real Estate & Property Law

Law of the Land

Forum for the discussion of current laws, policies and decisions that affect the use of land. Highlights new court decisions, new state and federal laws, and actions at the local government level that guide and/or impact land use and community development.
By atricia Salkin

Post Frequency: 4.4/day

Last Entry: October 28, 2020 at 16:28:04

Appellate Court Finds No Need to Prove Junkyard Owner Committed a Willful Violation of Stipulation

Posted on September 04, 2008
Following years of disagreement between the Town and the operator of a junkyard regarding regulation of the operation, the parties entered into two stipulations of settlement agreements at different times which required the operator of the junkyard to operate in accordance with specified mandates and entitled the Town to seek liquidated damages and a permanent [...

Texas Appeals Court Finds No Merit to Aesthetic Nuisance Claim against Wind Farm

Posted on September 03, 2008
A Texas appeals court upheld a dismissal by the trial court of assertions of both public and private nuisance claims relating to the construction and operation of a wind farm. Specifically the court noted that the Plaintiffs cannot assert a nuisance claim based upon the wind farm?s aesthetic impact...

Although Veterinary Clinic is Allowed in District, The Issued Permit is Invalid Because it was Dependent Upon Illegal Conditions

Posted on September 02, 2008
The Connecticut Supreme Court held that where the zoning ordinance permitted a ?medical, dental or similar health-oriented? facility, a veterinary clinic was an allowable use. In determining whether a similar ?health-oriented? facility included a veterinary clinic, a phrase not defined in the zoning ordinance, the Court looked to the purpose of the regulation...

Ohio Appeals Court Holds Zoning Manager Must Revoke Mistakenly Issued Permit

Posted on September 01, 2008
Because a township zoning manager lacked statutory authority to allow a sign erected in violation of the zoning ordinance to remain in place, the Ohio Court of Appeals (6th Dist.) ruled that the permit must be revoked. The township zoning manager, issued a permit for a sign to be placed on a building being renovated [...

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Board Improperly Denied Permit For Adult Bookstore on Grounds That Preview Booths Were Not Accessory Uses

Posted on August 31, 2008
The Connecticut Supreme Court ruled that a town planning and zoning commission erred when it rejected a site plan application for an adult book and video store on the ground the store?s video preview booths were not a permitted accessory use In 2006, Loring applied for site plan approval to change two units in a shopping plaza [...

Delay by County Planning Board in Acting on Application Not Excusable

Posted on August 30, 2008
The New Jersey Supreme Court ruled a county planning board?s failure to act upon a complete site plan application within the statutory time limit triggered the law?s automatic approval provision. The court rejected the board?s contention that the applicant had granted it an open-ended extension of time to act...

NH Supreme Court Explains Difference Between Zoning Regulation and Licensing Regulation in Upholding Nonconforming Use Status of Junkyard

Posted on August 29, 2008
The New Hampshire Supreme Court upheld the nonconforming use status of a junkyard that operated prior to the adoption of the Town?s comprehensive zoning ordinance which mandated that all motor vehicle junkyards abide by state law which, among other things, required junkyard owners to submit an application to the municipality of location containing certain information [...

Michigan Appeals Court Finds Variance Denial Was Not a Substantial Burden under RLUIPA

Posted on August 28, 2008
Following their decision in Greater Bible Way Temple of Jackson v City of Jackson, 478 Mich. 373 (2007), the Supreme Court of Michigan remanded the Shepherd Montessori Center Milan case back to the Court of Appeals with instructions to ?reconsider whether the denial of the zoning variance imposed a ?substantial burden? on the plaintiff?s religious [...

NJ Appellate Court Finds No Evidence of Blight to Support Eminent Domain Action

Posted on August 27, 2008
Relying on the New Jersey Supreme Court?s recent ruling in Gallenthin v. Borough of Paulsboro, 191 N.J. 344 (2007) which held that state statute requires a finding of actual blight (f N.J.S.A. 40A:12A-5) an appellate court remanded the matter for a plenary hearing, finding that the record was devoid of the requisite substantial evidence of [...

NY Appeals Court Upholds Invalidation of Town Comprehensive Plan as Exclusionary

Posted on August 26, 2008
In 2004 the Town of Montgomery adopted a comprehensive land use plan and implementing zoning laws that, among other things, eliminated the multi-family (RM-1) zoning district. In a major ruling last week, the appellate court upheld the trial court?s determination that this action constituted exclusionary zoning given the local and regional need for affordable housing...

E.D. of New York Gives Green Light for Fair Housing Act Claim

Posted on August 25, 2008
Plaintiffs filed a lawsuit alleging that the Village has violated the Fair Housing Act by proposing a redevelopment plan that is expected to displace 21% of the Village?s Latino population while displacing only 1.2% of the Village?s White population. Although only 12...

Oklahoma Enacts Law Including Sex Offender Residency Restrictions

Posted on August 24, 2008
Communities across the country continue to debate the development and adoption of residency restrictions the prohibit convicted sex offenders from residing in close proximity to areas where children are known to congregate. These laws, whether adopted at the state or local levels, have been successfully challenged on both constitutional and preemption grounds...

New California Law Allows Local Option to Collect Impact Fees Later in Development Process to Aid Developers

Posted on August 23, 2008
AB 2604, signed by the Governor on August 1, 2008, allows local agencies to defer the collection of development impact fees to the close of escrow. Given that most developer fees are currently collected at the building-permit stage, this bill will give some builders at least temporary relief from what can be a significant burden [...

Ninth Circuit Finds that Dogs May Be ?Livestock? for Purposes of Easement

Posted on August 22, 2008
The Parks operated a dog training and kennel service on property along the Clearwater River in Idaho. The property was subject to a scenic easement granted to the United States, which prohibited ?professional or commercial activities? but permitted ?general crop and livestock farming...

Second Circuit Upholds District Court?s Dismissal on Ripeness Grounds Finding Futility Exception Did Not Apply

Posted on August 21, 2008
Lost Trail, LLC claimed that the town attorneys erred in concluding that their recorded subdivisions were legally ineffective under Connecticut law and in denying their building permits. The Second Circuit, in affirming the dismissal of the federal lawsuit, noted that land use challenges, whether pursued as takings claims or as violations of equal protection or [...

PA Commonwealth Court Explains Merger Doctrine and Finds No Evidence of Intent to Maintain Nonconforming Lots in Single and Separate Ownership

Posted on August 20, 2008
The Plaintiff purchased a .3 acre lot that was part of an approved subdivision prior to a change in zoning that now requires a minimum 1-acre lot. The Plaintiff purchased the lot in 2005 from a company that purchased sixteen lots in 2003 that had been part of the originally approved subdivision from the County [...

1st Circuit Upholds City?s Ban on Electronic Billboards

Posted on August 19, 2008
Earlier this year the First Circuit Court of Appeals affirmed the denial of Naser Jewelers? motion for a preliminary injunction against the enforcement of a city ordinance prohibiting all Electronic Messaging Centers (”EMCs”),holding that plaintiff had no probability of success on the merits...

No Ethical Violation Where County Attorney Served on Board of Organization Promoting Sustainable Development

Posted on August 18, 2008
After serving for ten years as the elected county attorney, DePuy resigned her position and began working in the newly created part-time position as a county attorney doing civil work, including advising the Park County Commissioners and the county planning staff on various legal issues, including land use and development issues...

American Bar Association Adopts Model Statute on Local Land Use Planning Procedures

Posted on August 17, 2008
On Monday, August 11, 2008, the American Bar Association, through its House of Delegates, adopted a Model Statute on Local Land Use Planning Procedures, advanced jointly by the State and Local Government Law Section and the Administrative Law Section, and co-sponsored by the Real Property Law Section and the Government and Public Sector Lawyers Division...

The Big Look Task Force on Oregon Land Use Issues Preliminary Recommendations

Posted on August 16, 2008
As students of planning law know, Oregon was the original trailblazer in the field of state planning and growth management. Therefore, it is important to watch the State-initiated assessment of how well the statewide planning program, initially adopted in the 1970s (and of course updated from time to time) has achieved its intended goals, as [...

Atlantic Yards Litigation Moves to State Court

Posted on August 15, 2008
After an unsuccessful effort to get the U.S. Supreme Court to hear their federal appeal, on August 1, 2008, the Plaintiffs - nine property owners and tenants with homes and businesses New York State intends to condemn for the Forest City Ratner Atlantic Yards project ? have filed a petition with the Appellate Division in [...

Use of Recycled Wastewater on Sacred Mountain Does Not Violate RFRA, NEPA or NHPA

Posted on August 15, 2008
The Ninth Circuit Court of Appeals has held that the Government?s use of recycled wastewater to create artificial snow on government-owned parkland located on mountain sacred to Indian tribes? religion, did not violate the Religious Freedom Restoration Act, the National Environmental Policy Act, nor the National Historic Preservation Act...

First Test of 1991 Act Providing for Indemnification of Participating Communities in the Regional Hudson River Valley Greenway Compact

Posted on August 15, 2008
First Test of 1991 Act Providing for Indemnification of Participating Communities in the Regional Hudson River Valley Greenway Compact The Greenway Compact is a program that helps to reinforce regional concerns in the local planning process and is a central objective of the 1991 Greenway Act...

6th Circuit Finds Warrantless Search by Zoning Enforcement Official Unconstitutional

Posted on August 14, 2008
The Sixth Circuit Court of Appeals found that a local zoning enforcement officer violated a landowner?s rights under the Fourth Amendment to the U.S. Constitution by conducting a warrantless search of the landowner?s property for evidence of zoning violations that could lead to future criminal prosecution...

Town?s Zoning Law May Regulate Indirectly or Incidentally Interior Areas of Single Family Homes through Bulk Regulation of Maximum Floor-to-Area Ratios

Posted on August 13, 2008
A developer challenged the Town?s zoning bylaws that provide for a maximum floor-to-area ratio (the numerator is the gross floor area of a building and the denominator is the area of the lot on which it sits) to regulate land use in different zones, alleging it violates State statute which provides, in part, ?No zoning [...

Feds Announce Proposed Regulations to Modify the Endangered Species Act

Posted on August 12, 2008
The emails have been flying briskly today about proposed amendments to the Endangered Species Act (ESA) regulations that are believed by the environmental community to pose a serious threat to the long standing protections afforded under the ESA. The following is excerpted from the Washington Post: The Bush administration yesterday proposed a regulatory overhaul of the [...

No Common-Law Vested Rights Acquired Where Map Submitted by the Applicant was Inaccurate

Posted on August 12, 2008
In a typical ?race? between a developer and a community opposed to a project, the community sought a rezoning to prohibit structures, such as the proposed seven-story apartment building amid mostly detached one and two family homes, while the developer endeavored to complete as much of the construction as possible prior to any potential rezoning...

Keeping Track of Climate Change Litigation

Posted on August 11, 2008
Previously on this blog, I reviewed a terrific book edited by Michael Gerrard, Esq. of Arnold and Porter in New York City. The book, published by the American Bar Association, Global Climate Change and U.S. Law, is updated in part through a wonderful on-line multi-page chart showing all the climate change cases that had been decided [...

No Adverse Possession Over Open Space Set Aside in Cluster Development Since Possession was not Hostile

Posted on August 11, 2008
In 1982, as a condition of approval for a cluster development of four residential lots, the East Hampton Livestock Corporation (EHLC) agreed to set aside as open space an abutting 2.8 acres of land and to encumber the four lots as well as this parcel with scenic and conservation easements...

Emergency Legislation in California Extends Life of Tentative Maps for One Year

Posted on August 10, 2008
The California Legislature passed and California Governor Arnold Schwarzenegger signed SB 1185, emergency legislation that extends the life of certain tentative subdivision maps. The Legislature found it necessary for the law to take effect immediately ?to preserve development applications that are set to expire and that cannot be processed presently due to prevailing adverse economic [...

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