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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

Montana Supreme Court Finds Board Abused its Discretion When Issuing a Conditional Use Permit for Gravel Operation Without Making Required Findings

Posted on April 07, 2008
In 1995-1996, West Valley, an area northwest of Kalispell, established a Neighborhood Plan stating goals and policies for residential, agricultural, commercial/industrial, open space and public areas. In 1997, the county adopted the Plan as the basis for zoning regulations...

NY Appellate Court Upholds Area Variance Denial Based on Magnitude of Lot Size Deviation

Posted on April 06, 2008
The owners of a legally nonconforming lot which deviated from the zoning law in terms of net area by .39 acres, sought an area variance to divide the lot into two lots, which would produce lots that deviate from the net lot area requirements by 55% and 64%...

Idaho Supreme Court Says Change in Comprehensive Plan Map is Not the Same as a Change in Zoning

Posted on April 05, 2008
In a case that was really about whether an adjacent property owner had recourse for judicial review to challenge the decision of a local government to amend its comprehensive plan map, this opinion is of national interest because the Supreme Court of Idaho took the opportunity to describe the differences between planning and zoning...

NY Court of Appeals Holds Building Permit Can Be Withheld Absent Assurances That Use Will Be in Accordance with the Law

Posted on April 04, 2008
In reversing a decision of the Appellate Division, the New York Court of Appeals held that the New York City Building Department did not act inappropriately in requiring the petitioner to present assurances that they would use the proposed 19 story building as a dormitory (which they represented was the intended use) when the deed [...

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CT Supreme Court Holds Federal Power Act Preempts Town Zoning Regulations

Posted on April 03, 2008
The defendant owns a commercial marina on the shore of Candlewood Lake, an artificial reservoir owned by Northeast General Company and used to generate hydroelectric power pursuant to a license issued by the Federal Energy Regulatory Commission.� Under a license from Northeast, the defendant began constructing a sixteen by fifty foot deck off of the [...

Lawsuit Filed in Court of Appeals to Enforce Massachusetts v. EPA Climate Change Case

Posted on April 03, 2008
One year ago, the Supreme Court rejected the Environmental Protection Agency (EPA) claim that it lacked legal authority to regulate global warming pollution. EPA administrator Stephen Johnson promised a firm and prompt response to the high Court?s decision, yet a year passed with no action...

SCOTUS Grants Review in Establishment Clause Case

Posted on April 02, 2008
On Monday, March 31, 2008, the U.S. Supreme Court granted review in a case that?s a twist on the usual Establishment Clause litigation. The question is whether a Utah municipal park is a public forum under the First Amendment for erection and permanent display of monuments displayed by private parties, and whether the Summum religion [...

NY Appellate Court Upholds Variance Denial Where Request Was Substantial and Would Impact Character of the Neighborhood

Posted on April 02, 2008
The zoning board of appeals denied petitioner?s request for area variances to permit her to subdivide her 1.1 acre lot into two lots so a second house could be built on the property where the zoning requires one-acre lots. She requested one variance to allow one house per half-acre and another variance from the setback [...

S.D. of FL Holds that Differential Treatment of ?Assembly? for Commercial and Religious Uses Violates RLUIPA ?Equal Terms? Provision as a Matter of Law

Posted on April 01, 2008
Chabad of Nova challenged the zoning ordinance of the City of Cooper City as violative of RLUIPA asserting that the City’s Land Use Code, on its face, prohibits religious assembly in all business districts, but permits numerous non-religious assembly uses within these districts...

Could A Provision in the Telecommunications Act Be Used to Invalidate Zoning Ordinances Regulating the Placement of Wireless Facilities? One California District Court Says Yes

Posted on March 31, 2008
Note: This past weekend I attended the spring meeting of the ABA State & Local Government Law Section in Charleston, SC.� The highlight for me of the annual spring meeting is the ?Hot Topics in Land Use? program, a two hour rapid fire program featuring papers and presentations on major trends in various aspects of [...

CT Supreme Court Finds Special Exception Permit Is Not Individualized Assessment Under RLUIPA

Posted on March 30, 2008
The Cambodian Buddhist Society of Connecticut, and their President, Pong Me, challenged a decision of the planning and zoning commission of Newtown denying their application for special exception permit to build a Buddhist temple on property it owned in the Town...

Appeals Court Holds that Municipal Prohibition on Billboards is Not Preempted by State Law in Wisconsin

Posted on March 29, 2008
The Town of Spring Valley enacted an ordinance that bans directional signs in residential and agricultural areas. Donaldson, the owner of land in an agricultural district, wished to erect a billboard on his property to advertise a business he owned located up the road...

ME Supreme Court Says ?Unique Circumstances? for Granting a Variance Requires Hardship Not in Common with Other Lots in the Neighborhood

Posted on March 28, 2008
The Gliddens, owners a substandard lot on Treasure Island, were granted four variances from setback requirements by the Shapleigh zoning board of appeals to enable them to built a structure on the undeveloped lot.� A property owner may seek a variance where the strict application of the ordinance would cause ?undue hardship? which is defined [...

New Virginia Law Requires Disclosure in Land Use Matters for Government Decision Makers

Posted on March 27, 2008
On March 10, 2008, the Virginia Governor signed SB 532 which requires each individual member of the Loudoun County board of supervisors, planning commission, and board of zoning appeals in any proceeding before each such body involving an application for a special exception or variance or involving an application for amendment of a zoning ordinance [...

Ninth Circuit Announces ?Being old is not, per se, equivalent to being disabled?

Posted on March 26, 2008
The Town of Carefree denied Budnick?s request for a special use permit to build a multi-level continuing care retirement community proposed as a ?luxurious, age restricted, senior retirement residential community? designed to service active and independent seniors on a 40-acre tract because the proposal did not comply with application zoning ordinances...

District Court of Minnesota Finds CUP Denial Was Neither a Taking Nor a Due Process Violation

Posted on March 25, 2008
In 2005, while her late father was ill with cancer, the Plaintiff purchased the property on which he had operated an auto sales business at the location under a conditional use permit (CUP) issued by the City so that the landlord would not evict her father, and from 2004 to early 2005 (when her father [...

Iowa Supreme Court Concludes Prohibition on Sale and Service of Alcoholic Beverages Does not Alter Nonconforming Use Status of Restaurant and it is Accessory Use

Posted on March 24, 2008
There is a split of authority regarding whether the addition of the sale of alcohol constitutes an unlawful expansion of a nonconforming restaurant as a matter of law.� Courts in Alabama, California, Connecticut and Delaware have determined that such activity does constitute an unlawful expansion of the nonconforming use...

VT Supreme Court Upholds Conditional Use Permit for Siting of Telecommunications Tower

Posted on March 23, 2008
The Vermont Supreme Court upheld�the Environmental Court?s decision granting a conditional use permit for the placement of a telecommunications tower in Hardwick, Vermont.� The tower, intended primarily for providing paging services to, among others, public safety and medical service providers, would also allow other service providers to place antennae for cell-phone service, which is currently [...

NY Appellate Court Holds that a Tent or Canopy Over an Outdoor Dining Area Does Not Violate Restaurant?s Nonconforming Use Status

Posted on March 22, 2008
Since at least 1963, the property at issue was used as a marina and restaurant along the Hudson River, and as early as 1972 the restaurant offered seasonal outdoor food and beverage service. The property is presently zoned WF-2, a waterfront district, where no uses are permitted as of right, but marinas and restaurants are [...

Controversial New Utah Law Limits Initiative and Referenda

Posted on March 21, 2008
On March 13, 2008, Utah Governor Huntsman signed S.B. 53 addressing the use of initiative and referendum for administrative land use and zoning matters. Sponsored by Senator Goodfellow, and supported by the Utah Leagues of Cities and Towns as well as realtors and developers, the bill prohibits the use of local initiatives for land use [...

New Hampshire Supreme Court Upholds Private Helicopter Use Subject to Special Use Permit

Posted on March 20, 2008
The owner of a 230 acre parcel of land located in a rural zoning district planned to use the property, in part, for private recreational use of a helicopter. The town does not permit the use of land for aircraft takeoffs and landings in three districts, but it does allow for the use in the [...

Tattoo Parlor Use is Not Entitled to First Amendment Protection

Posted on March 19, 2008
The Northern District of Illinois upheld the city council?s denial of a special use permit for the operation of a tattoo studio where the Council informed the plaintiff that it was ?not the kind of business? the council wanted in the neighborhood. Following the denial, the plaintiff alleged that his constitutional rights were violated, asserting [...

Georgia Supreme Court Rules Billboard Company Lacks Standing to Challenge Sign Code

Posted on March 18, 2008
Granite State Outdoor Advertising, Inc. wished to erect three billboards in the City of Roswell, each 672 square feet in area and 70 feet in height. The city rejected the applications because the sign code limited off-premises signs to a maximum area of 128 square feet and 12 feet in height...

6th Circuit Court of Appeals Upholds Dismissal of Takings and Equal Protection Claims Due to Preclusion

Posted on March 17, 2008
Trafalgar repeatedly requested a rezoning of its fifty-acre tract of land from A-2 Agricultural to single-family residential. Each time Trafalgar asked the County Board of Commissioners to rezone the property, the Board agreed, but every time a voter referendum vetoed the change...

Local New Mexico EJ Task Force Issues Final Report

Posted on March 16, 2008
Last week, the Environmental Justice Task Force created by the Albuquerque-Bernalillo County Air Quality Task Board issued its final report. The fifty-two page report includes nine key recommendations relating primarily to air quality.� In order of priority, the nine recommendations are:� 1...

Arkansas Supreme Court Upholds Constitutionality of De Novo Trial on Appeal of Variance Denial

Posted on March 16, 2008
Under Arkansas State statute (Ark. Code Ann. �14-56-425), an appeal may be taken from a final action by an administrative or quasi-judicial agency concerned with the administrative of municipal building and zoning regulations to the circuit court where it ?shall be tried de novo according to the same procedure which applies to appeals in civil [...

Virginia Supreme Court Determines Petition for Certiorari is in Nature of Appeal and not Trial

Posted on March 15, 2008
The Virginia Supreme Court held that the trial court erred in a writ of certiorari proceeding pursuant to Va. Code � 15.2-2314 when it permitted the petitioning county board of supervisors to take a nonsuit after adverse intervening case law was announced (Specifically, the Court had held that the 30-day appeal period set out in [...

6th Circuit Court of Appeals Affirms that City?s Approval for Billboard Did Not Violate First Amendment Rights

Posted on March 14, 2008
After the plaintiff, owner of a bookstore, pursuant to a sign permit obtained from the City, had a mural painted on his wall which covered an advertisement for an adjacent business, the other business sought and received permission from the City to erect a 480-foot billboard within twelve inches of Plaintiff?s mural...

Federal District Court Remands Special Use Permit Case Citing Abstention Doctrine

Posted on March 13, 2008
Petitioners sought to use their roughly three acre lot in an R-1 residential district for a medial clinic, which was an allowable use subject to obtaining a special use permit. During the initial public comment period, the Town Mayor ? who owned property adjacent to the subject parcel ? commented that she was surprised that [...

Utah Puts Zoning Ordinances On-Line ? Model for Other States to Follow

Posted on March 13, 2008
Accessing on-line information in one place about the content of various zoning ordinances for research purposes can be difficult.� Finding one zoning ordinance at a time where it is posted on a municipal website is one time-consuming way to do this.� Some commercial outfits, such as General Code, offer a site where zoning ordinances they [...

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