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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

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

NY Appeals Court Upholds Variance Denials Finding They Were Substantial and Would Have a Negative Effect on the Community

Posted on December 30, 2010
construct a single-family dwelling on each parcel. Each parcel would have fifty feet of width, which was far below the seventy feet required by the zoning code. The ZBA denied the requested variances and the trial court affirmed. On appeals, the Court found that the ZBA made a rational determination that the area variances sought [...

PA Appeals Court Upholds Rezoning and Dismisses Spot Zoning Claim

Posted on December 29, 2010
Following an in-depth study of Zoning Ordinance No. 99 by a zoning study committee, the committee concluded that there were confusing provisions that needed to be revised. The proposed changes were published in local newspapers as well as on the Borough?s website...

9th Circuit Court of Appeals Affirms Rent Control Regulation is Not a Regulatory Taking under Penn Central

Posted on December 28, 2010
Guggenheim, the owner of a mobile home park in Goleta, California, sued the City, claiming that its rent control ordinance illegally restricted his profits by limiting rental fees within the park. When Guggenheim purchased the mobile home park in 1997 it was situated within an unincorporated portion of Santa Barbara County and was subject to [...

Federal District Court Strikes Down Sign Regulation as Content-Based

Posted on December 27, 2010
The plaintiff and city engaged in an extended dispute after the city widened a street adjacent to his home. The plaintiff contended the road project devalued his property and caused flooding problems. The city made a number of improvements to address drainage issues, but refused the plaintiff?s demand that his lot be purchased for 130 [...

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NY Appeals Court Upholds Variance Permitting Building to Span Common Walkway and Finds Such Does not Violate Easement

Posted on December 26, 2010
Goldberg had a common easement for a walkway that cut through two parcels of land owned by the co-defendant. The co-defendant sought to build a house that on the second story spanned the walkway at a height of twelve feet. The structure would be supported by posts and would include motion sensor lights to illuminate [...

New Laws in Colorado and Nebraska Address Encroachment on Military Installations

Posted on December 26, 2010
Two new laws enacted in 2010 address the issue of land use encroachment on military installations. In Colorado, S.B. 10-1295 requires local governments to notify military installations of land use changes in order to encourage compatible land use, help prevent incompatible urban encroachment upon military installations, and facilitate the continued presence of major military installations [...

Second Circuit Court of Appeals Finds City of New York Violated Equal Terms Provision of RLUIPA

Posted on December 22, 2010
In affirming the decision of the federal district court, the Second Circuit Court of Appeals held that the City of New York violated the Equal Terms Provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) when they allowed secular institutions in the Church?s neighborhood to conduct catered events but prohibited the Church from [...

CA Appeals Court Upholds County Farmland Mitigation Program

Posted on December 21, 2010
The County Farmland Mitigation Program (FMP) was updated in 2007 to assist in mitigating the loss of farmland. The guidelines required developers to obtain an agricultural conservation easement over an equivalent area of comparable farmland but respondent developer challenged the validity of such a requirement...

TN Appeals Court Upholds Denial of Rezoning Request Due to Concerns over Sewer System

Posted on December 20, 2010
In 2008, Plaintiff applied to the Smyrna Planning Commission for approval to rezone his land from medium density residential to PRD, which is defined as ?any planned development for a land use, uses, or combination of uses permitted by right or by special exception...

Second Circuit Finds Class of One Equal Protection Claim Fails

Posted on December 19, 2010
The Second Circuit Court of Appeals upheld a decision of the Northern District of New York finding that that the appellant, Androme Leather, differed from its proffered comparator since the comparator business enjoyed a nonconforming use status to continue to engage in the process of ?beaming? whereas Androme had no such right and therefore had [...

Delaware River Basin Commission Proposes Rules to Protect River from Impacts of Marcellus Shale Gas Drilling

Posted on December 19, 2010
Following a May 2009 ban on natural gas drilling absent Commission approval, last month the Delaware River Basin Commission proposed new regulations that would require gas drilling companies to have an approved plan for siting and accessing their natural gas development projects...

USGBC Proposes Next Version of LEED and Opens Public Comment

Posted on December 18, 2010
The U.S. Green Building Council (USGBC) has released a draft of the next version of the LEED rating systems and has opened the first public comment period for that draft. The comment period is open through January 14, 2011. This will be followed by a second comment period that will end in August 2011...

NY Appeals Court Upholds Area Variance Denial

Posted on December 18, 2010
Rossney claimed the ZBA acted arbitrarily and capriciously in denying their area variances and that the ZBA failed to conduct the statutory analysis required by the New York Village Law. The trial court dismissed the petition and the appeals court affirmed, finding that the ZBA properly balanced the benefit to the petitioner against the impact [...

Arkansas Supreme Court Upholds Injunction Prohibiting Private Airstrip Following Jury Trial

Posted on December 17, 2010
After the Little Rock Planning and Development Department issued a notice informing the appellant he failed to comply with local zoning ordinances by building a private airstrip on his land for personal use, he appealed to the Board of Zoning Adjustment who determined that his airstrip was not an ?airport or landing field? that would [...

Idaho Supreme Court Finds that Replacement of RV in Park is a Continuation of Nonconforming Use

Posted on December 16, 2010
Plaintiff owner and operator of a home park rented standard mobile home spaces and recreational vehicle spaces to tenants. Plaintiff did not have a license to operate a recreational vehicle park and the City enacted an ordinance which prohibited recreational vehicles from being within manufactured home parks...

Federal District Court Sends Takings Claims Back on Ripeness Grounds

Posted on December 15, 2010
Clark wanted to build a residence on a parcel of land she owned. Since the parcel was located in a wetlands area, she was required to submit a request for a Natural Resources Special Permit. Her permit application was denied, and she filed a complaint first in State court, alleging the Town?s action constituted a [...

PA Appeals Court Holds that a Roof Does Not Constitute a Land Development Under Either the Municipal Planning Code Nor Local Ordinance

Posted on December 14, 2010
The Zoning Hearing Board (ZHB) denied Basile?s permit to build a roof over an outdoor concrete patio attached to his restaurant. Basile had previously obtained a permit to renovate his restaurant and build a patio behind the building. But during the renovation, a zoning officer noticed that a roof was being built over the patio [...

MN Appeals Court Sends Back Takings Claim Under State Constitution

Posted on December 13, 2010
Appellant Galarneau leased property to Interstate Companies. His wife also leased property to Interstate Companies. In 2004, the Joint Airport Zoning Board adopted a new ordinance for an airport runway. Pursuant to the ordinance, Safety Zone A when read restrictively, did not permit any structures to be near the new runway...

NY Appeals Court Upholds Zoning Board?s Finding that Lot Was Not A Legal Nonconforming Use

Posted on December 12, 2010
A property owner brought a proceeding to review a decision by the zoning board of appeals (ZBA), which determined that the property owned by petitioner was one building lot and not two. Petitioner acquired real property pursuant to a deed in 1971. Although the Petitioner paid separate real estate taxes for each lot, he argued [...

NYS DEC Issues Policy on Climate Change

Posted on December 11, 2010
In September 2010, the New York State Department of Environmental Conservation (DEC) issued a final Commissioner Policy on Climate Change, which, among other things, creates an internal climate action team. The policy provides that, ?In performing its responsibilities, DEC must take into account both (a) mitigation of climate change, through reductions in GHG emissions and [...

New Report on Use of Community Benefits Agreements in New York City

Posted on December 10, 2010
On September 29, 2010, New York City Comptroller John C. Liu issued the Recommendations of the Task Force on Public Benefit Agreements. The report, which focuses on Community Benefits Agreements (CBAs), follows another set of recommendations issued by the New York City Bar Association in March...

MD Appeals Court Finds City Planning Commission Failed to Adequately Consider Affordable Housing Project?s Effect on Public Schools

Posted on December 09, 2010
City residents sought review of a decision by the City Planning Commission which approved a use permit for construction of a 109 unit low-income housing development. The circuit court affirmed the decision of the Planning Commission but the city residents appealed arguing that the Planning Commission erred by approving the use application...

NJ Appeals Court Finds that City Made Procedural Errors in Enforcement of Variance Conditions

Posted on December 08, 2010
The City of Jersey City brought a motion to enforce the City Board of Adjustment?s resolution which required the developer to convey to the city fee simple absolute title to seven affordable housing units. The Superior Court ordered the enforcement but the developer appealed alleging that the court erred in granting defendant?s relief without a [...

Maryland Court of Appeals Explains Differences Between Legislative and Adjudicative Functions of County Council Reaching Different Conclusions on Two Difference Applications

Posted on December 07, 2010
Property owners Miles Point and Shore Lands submitted applications to the Talbot County Council seeking to reclassify properties under the Talbot County Comprehensive Water and Sewer Plan. Miles Point attempted to reclassify their 72 acres of undeveloped land from S-2, which is contemplated for improvements, extensions, or construction of shared sanitary facilities within 3-5 years [...

Fifth Circuit Court of Appeals Finds Home Builders and NAACP Lack Standing Under the FHA to Challenge Zoning and Subdivision Ordinances under the FHA

Posted on December 06, 2010
In 2003, the City of Kyle changed its zoning and subdivision ordinances for new single-family residences. The revised ordinances increased the minimum lot and home sizes for such residences. NAACP and the home builders’ association challenged city’s ordinance increasing the minimum lot and home sizes and requiring full masonry exteriors for new single-family residences as [...

NY Appeals Court Upholds Approval of Motorcycle Track on Farm Agreeing with Board?s Interpretation of Recreational Use

Posted on November 26, 2010
The Wilzigs purchased a 250-acre farm in the Town of Tafhkanic in order to build a motorcycle track on the premises. However, as the track was being completed, Callahan, Tachkanic?s Code Enforcement Officer and Building Inspector, contended that the track was in violation of the Tachkanic?s Use Regulations and, therefore, issued an ?Order to Remedy [...

NY Appellate Court Remands Variance Case As Lower Court Errs in Decision

Posted on November 25, 2010
Filipowski challenged the zoning board?s denial of areas variances, which was dismissed by the trial court on the grounds that the claim was barred by res judicata and collateral estoppel. The appeals court remanded the matter because the trial court failed to determine whether the ZBA applied the proper review and reasoning in making its [...

FERC Approves Proposed Rulemaking on Integration of Renewables Into National Electricity Grid

Posted on November 25, 2010
On November 18, 2010, the Federal Energy Regulatory Commission voted to issue a proposed rule to facilitate integration of renewable energy resources into the nation’s electricity grid. The proposed rulemaking addressed a narrow operational issue involving how much reserve generation capacity must be made available to keep the grid running smoothly and still accommodate renewable [...

NY Federal District Court Dismisses Takings Claim but Allows Section 1983 Claims to Proceed

Posted on November 24, 2010
Plaintiff, Soundview Associates, owned 144-acre parcel of land on which they intended to build a spa. In 1982, at the request of Soundview?s predecessor-in-interest, Riverhead Flag Corporation, the Town rezoned the site to a Recreational Use in order to enable them to improve the sites and build condominiums while continuing to use and operate the [...

ME Supreme Court Holds that Boarding of Horses Constitutes Animal Husbandry Under the Zoning Ordinance

Posted on November 23, 2010
Petitioner Golick appealed from the judgment of the Superior Court, vacating the Code Enforcement Officer?s (CEO) decision issuing them a building permit for a horse barn and indoor riding arena. Golick planned to use the building to board others? horses and provide an indoor riding arena to exercise the horses...

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