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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

Arkansas Supreme Court Upholds Injunction Enjoining Use of Property for Airport and Nuisance Finding

Posted on May 01, 2008
The Hammers use a portion of their 291 acres for flying gas-powered remote controlled planes four to five days per week. In addition, Mr. Hammer, who built two runways for the remote controlled planes, hosts two annual weekend flying events attracting hundreds of enthusiasts...

5th Circuit Court of Appeals Upholds Dismissal of Challenge to Used Car Dealership License Denial on Due Process Claims but Reverses on Equal Protection Claim

Posted on April 30, 2008
The City of Pasadena enacted an ordinance governing the issuance of licenses for used car dealers. Among other things, the ordinance requires that each new license location be a minimum of 1,000 feet from an existing license location, and that a new license would not be issued for the operation of a used car lot [...

Mass. Sup. Court Upholds Agency Rule Regarding Timing for Compliance with Minimum Requirement for Affordable Housing

Posted on April 29, 2008
Canton Property Holding submitted a comprehensive permit application to the Town of Canton for a project to consist of two developments: one consisting of 196 units of rental housing, and a subdivision containing 24 single family homes, one two-family plan, and three duplexes...

11th Circuit Finds Florida?s Preclusion Doctrine Foreclosed Relitigation of Regulatory Takings Claim

Posted on April 28, 2008
This case is the latest in the quest of plaintiffs trying unsuccessfully to get their takings claims heard in federal court after complying with the Supreme Court mandate of frst exhausting their state court remedies. Federal statute requiring federal courts to afford full faith and credit to state court decisions, combined with state preclusion doctrines, often [...

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NY Appellate Court Upholds Residential Zoning Despite Comprehensive Plan Suggestion that Part of the Parcel Be Zoned Commercial

Posted on April 27, 2008
At issue was a one acre parcel of residentially-zoned property that contained a one-family house. The property had been zoned residential since 1947. A comprehensive plan adopted in 1993 provided that the front of the subject property abutting the highway, to a depth of 250 feet, should be zoned commercial, while the rest of the [...

Utah Supreme Court Upholds Dismissal of Religious Exercise Claims Based on Ripeness and Failure to Exhaust Administrative Remedies

Posted on April 26, 2008
The Salt Lake City Mission opened in 1996 to provide religious services and temporal resources to homeless and needy person suffering from addition problems. The Mission moved from its original location and considered a number of relocation properties in Salt Lake City, five of which required a conditional use permit (CUP)...

Missouri Appeals Court Dismisses Objections to Conditional Use Permit on Ripeness Grounds

Posted on April 25, 2008
LaFarge North America, Inc. sought a conditional use permit to operate a proposed asphalt or concrete plant on land it owned in the County that was in an area zoned as an Agricultural and Forest Management District (AMF). Following a public hearing, the Planning and Zoning Commission voted to approve the permit application...

MA Supreme Court Determined that MA Bay Transp. Authority is Exempt from Local Zoning Regs. with Respect to Advertisements on its Property

Posted on April 24, 2008
This consolidated case raised the question of whether cities in Massachusetts may regulate through zoning ordinances, billboards and signs for commercial advertising in and on the facilities of the Massachusetts Bay Transportation Authority (MBTA). MBTA worked with Clear Channel and Titan outdoor LLC to erect advertisements on its facilities...

New Mexico AG Opines on Environmental Justice

Posted on April 23, 2008
Last month, the Attorney General of the State of New Mexico opined that the Albuquerque-Bernalillo County Air Quality Control Board (?Board?) has authority to promulgate regulations that incorporate environmental justice principles; and that while the board has authority to adopt directives requiring staff to incorporate environmental justice principles into their work, these directives do not [...

Bus Size Concern was a Rational Basis for Special Use Permit Denial

Posted on April 23, 2008
A New York Appellate Court (Second Department) upheld the denial by the Village Board of Trustees of a special use permit for the construction of a parking lot for the storage of buses 40 feet in length. The board found that the operation of the buses on the street adjacent to the property would violate [...

NH Supreme Court Holds City Ordinance Prohibiting Correctional Facilities in all Zoning Districts is Unconstitutional

Posted on April 22, 2008
The zoning ordinance of the City of Manchester prohibits correctional facilities in all zones, yet it concedes that this ban does not apply to state-run institutions. The Plaintiff, a non-profit organization that operates halfway houses under contract with the Federal Bureau of Prisons, appealed the denial of its request to use property it owns in [...

NY Court of Appeals Addresses Disclosure of Electronic Public Land Records

Posted on April 21, 2008
With the growing use of GIS software and the need to populate the systems with data, questions have arisen in some states regarding public access to this information. In addition, land records and maps possessed by county clerks have also been the subject of public access battles...

N.D. of Georgia Dismisses Appeal by Adult Use Bookstore on Ripeness Grounds

Posted on April 20, 2008
The applicant, Love Shack, an adult bookstore, sought a business license from the county so that it could operate. The license was denied in the summer of 2006, and in December of 2006, the City of Johns Creek emerged from what had been unincorporated territory in the county...

NH Supreme Court Upholds Subdivision Approval Conditioned Upon Payment of One-Third of Cost to Improve Portion of Turnpike

Posted on April 19, 2008
The Turnpike in this case is a gravel road surrounded by wetlands. The petitioner owns a 21.1-acre parcel on the Turnpike and proposed to replace the existing single-family residence on the property with four new residential lots. There are currently five single-family residences along the Turnpike, including the petitioner?s...

MA Supreme Court Finds State Can?t Force Conveyance of Easement as a Condition of Affordable Housing Project Approval

Posted on April 18, 2008
The Supreme Court held that the Housing Appeals Committee of the Department of Housing and Community Development lacks statutory authority to require, as a condition to the grant of a comprehensive permit for an affordable housing development project, that a municipality convey an easement on land it owns to the project?s developer...

CT Supreme Court Finds Evidence Did Not Support Historic District Commission?s Refusal To Allow Shed?s Relocation

Posted on April 17, 2008
The Connecticut Supreme Court has determined that although the jurisdiction of a town?s historic district commission extended to the location of an outbuilding within the district, the evidence in the record did not support the commission?s rejection of an application for a certificate of appropriateness permitting its relocation...

Indiana Supreme Court Finds City Not Required to Utilize Zoning to Regulate Mining

Posted on April 16, 2008
The plaintiff, Martin Marietta Materials, Inc., had conducted mining operations in the City for several decades. They operated a quarry, an underground mine, and sand and gravel pits. With the growth of residential development nearby, a growing number of complaints were lodged with the City about the mining operation...

Jury in Albany, New York Tells Church ?Thou Shalt Not Covet Thy Neighbor?s Land?

Posted on April 16, 2008
Driving to work daily through a developing commercial corridor, I couldn?t help but notice a small church on what seemed to be a large parcel of prime real estate sitting across from a new retail strip mall that includes a Wal-Mart, Lowes, Petsmart and Staples...

NY Appellate Court Finds Set-Back Requirements for Wind Turbines Do Not Amount to a Taking

Posted on April 15, 2008
Petitioners, opponents of a wind turbine generator project, alleged that the setback requirements contained in the Industrial Development Agency?s findings statement amount to a de facto taking. The Court noted that the wind turbines will be located on land leased or purchased by Ecogen, and that the Agency approved setback requirements that restrict the location [...

Michigan Supreme Court Remands RLUIPA Case To Determined Whether Variance Denial Constitutes a Substantial Burden

Posted on April 14, 2008
In a case that has been the subject of protracted litigation, the Michigan Supreme Court remanded to the Court of Appeals for reconsideration the matter in light of their 2007 ruling in Greater Bible Way Temple of Jackson v. City of Jackson (this blog reported on this case in August 2007, see, http://lawoftheland...

Atlantic Yards Condemnation Could Be Making Its Way to the U.S. Supreme Court

Posted on April 13, 2008
On March 31, the Plaintiffs in Goldstein v. Pataki, 516 F.3d 50 (2nd Cir. 2/1/2008) (see a summary of the case on this blog at: http://lawoftheland.wordpress.com/2008/02/04/second-circuit-upholds-use-of-eminent-domain-for-controversial-atlantic-yards-project) filed a petition for a Writ of Certiorari to the U...

RI Supreme Court Finds C & D Transfer Station is Not an Authorized Use Under City Zoning Ordinance

Posted on April 13, 2008
Where the municipal zoning ordinance allowed in a manufacturing open zone ?public, semi-public, education, and recreation uses,? the director of the planning department informed the applicant that the operation of a private refuse transfer station is not an allowable use in the district...

Alleghany County, PA Considering Community Benefits Agreement Local Laws

Posted on April 12, 2008
As first reported on the Community Benefits Agreement Blog, two proposals dealing with community benefits agreements (CBAs) were the subject of a public hearing a few weeks ago in Alleghany County, Pennsylvania. The first bill would require developers of subsidized projects to meet with community representatives at least three times prior to receiving any approvals...

Condemnation of Church Property Does Not Violates Florida?s Religious Freedom Restoration Act

Posted on April 12, 2008
In seeking to expand a substance abuse facility, Broward County concluded that it needed to condemn the property owned by a church. The County indicated that the church property was in a desirable location for the proposed facility because it is accessible by public transportation, it is centrally located, and it is close to other [...

New Study Focuses on Inclusionary Zoning and Offers Data, Insight and Recommendations

Posted on April 11, 2008
The Center for Housing Policy at the Furman Center for Real Estate & Urban Policy at New York University School of Law has recently released a Housing Policy Brief on the effects of inclusionary zoning on local housing markets. With more than 300 cities, towns and counties having inclusionary zoning ordinances on the books, the [...

Kentucky Appeals Court Rules Operation of Bed & Breakfast Was a Legal Nonconforming Use

Posted on April 11, 2008
The Romeros purchased property in an R-2 zone that, at the time, permitted bed and breakfasts with a maximum of four rooms as an accessory use, not requiring approval from the Board of Adjustment or from the Planning Commission. The Romeros prepared to open a bed and breakfast, tearoom and catering service on the property...

Colorado Supreme Court Holds that A Court May Not Order Urban Renewal Authority to Exercise Eminent Domain In Furtherance of a Contract with Developer

Posted on April 10, 2008
The urban renewal authority entered into an agreement that required it to acquire five parcels, by eminent domain if necessary, and sell them to the developer for construction of a Walgreen?s store. When the authority failed to obtain needed financing, it entered into a second agreement, under which the developer would finance the acquisition...

NY Appellate Court Finds Lot-Line Adjustment Constituted a Subdivision and Hence Created a Statutory Vested Right

Posted on April 09, 2008
Following the adoption of a local law in March 2006 that rezoned residential R-2 and R-3 areas to residential R-1, the petitioner who owned property in the now rezoned area, had intended to develop its property in a manner previously allowed, but pursuant to the new local law, would no longer be able to do [...

Failure to Notify Landowner of Blight Designation Violated Due Process

Posted on April 08, 2008
The New Jersey Superior Court Appellate Division ruled the state?s procedure for designating property as in need of redevelopment, and subject to taking by eminent domain, is constitutionally deficient because the notice of a potential designation does not apprise landowners of the risk of losing their property and the short time available to challenge the [...

Solar Energy Heats Up ? Are Local Zoning Codes Keeping Pace?

Posted on April 07, 2008
According to a recent Legisbrief from the National Conference of State Legislatures, solar energy now produces millions of watts per year and created as $2 billion national market. The top solar energy producing states are California, New Jersey and New York ? due in large part to their aggressive incentive programs...

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