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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

CA Appeals Court Rejects ?Fast-Track? Zoning Process For Lack of Appropriate Notice

Posted on February 14, 2008
The California Court of Appeal (3rd Dist.) ruled a county?s ?streamlined zoning process,? in which notice of the legislative body?s hearing on a proposed zoning change issues before the planning commission has made its recommendation, is inconsistent with the state?s planning and zoning law...

CT Governor Rell Issues Executive Order Prohibiting Billboards on State Property

Posted on February 13, 2008
Finding that outdoor advertising displays/billboards clutter the landscape, and to maintain the historic and natural landscape of the State, last week Governor M. Jodi Rell issued an executive order directing that no new contracts for the erection and/or maintenance of outdoor advertising structures, devices or displays on state-owned property be executed; and that no renewal [...

NYS Department of Environmental Conservation Proposes Wind Energy Bird and Bat Protection Guidelines

Posted on February 12, 2008
Interest continues to grow in the promise of ”green” power generated by wind. This has resulted in an increased number lawsuits surrounding the siting of wind turbines. Litigation may allege that the turbines constitute a public or private nuisance (mostly due to allegations of noise or light flicker) or that the use is not allowed in the [...

Indiana Appeals Court Rules Occasional Use of Accessory Building to House Guests Does Not Require Variance on Prohibition on Lot Containing More than One Dwelling

Posted on February 11, 2008
In 1999 the owners of a house on 10 acres in an agricultural district built a building with a kitchen and bathroom for use in connection with their organic farm operation. After the farm operation ended the owners allowed their son and his wife to live in the outbuilding while attending college...

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Community Benefits Agreements Gaining in Popularity

Posted on February 10, 2008
Beginning in the late 1990s as a mechanism for community groups to organize and work collaboratively to communicate and negotiate directly with developers for the purposes of addressing a host of community impacts, community benefits agreements (CBAs) were developed...

NY Appellate Court Upholds Rezoning Denial and Rejects Substantive Due Process Claim

Posted on February 09, 2008
The Town Board determined that the Plaintiffs? requested rezoning of 45-acres from Agricultural to Rural Residential to allow for a 32-home residential subdivision was inconsistent with the comprehensive plan that designated the area as predominantly agricultural in order to preserve ?open space? and the agricultural integrity of the Town...

E.D. Missouri Finds Federal Takings Claim Precluded by State Claim

Posted on February 08, 2008
Plaintiffs with takings claims are often frustrated with the ripeness requirements set forth in Williamson County Regional Planning Comm?n v. Hamilton Bank of Johnson County, 473 U.S. 172 (1985) which states that federal claims of taking without just compensation are not ripe until the plaintiff exhausts available state remedies for compensation...

CT Supreme Court Finds Historic District Commission?s Refusal to Issue Certificate of Appropriateness was an Abuse of Discretion

Posted on February 07, 2008
The Felician Sisters operate a private elementary school in an historic district. The property, used as a school since the 1940s, consists of two buildings, the ?white building,? and the ?brown building,? located to the rear of the white building. Adriveway runs 150 feet from the street past the white building to the brown building...

N.D. Supreme Court Upholds Injunction Against Home Occupation and Rules it is Not a Taking

Posted on February 06, 2008
According to the 2000 U.S. Census, over four million people work from home, representing 3.3% of the nation?s population. The Small Business Administration reported that in 2000, nearly 20,000 entrepreneurs grossed more than $1 million operating from a home-based environment...

PA Supreme Court Upholds Variance Denial For Accountant?s Use of Residential Property Solely as an Office

Posted on February 05, 2008
A significant body of annual case law in most states surrounds the subject of use and area variances. Most states provide a statutory test for the granting of these variances, and where there is no applicable state test, criteria are often contained in local zoning regulations or they have been developed through common law...

Second Circuit Upholds Use of Eminent Domain for Controversial Atlantic Yards Project

Posted on February 04, 2008
On Friday, the Second Circuit upheld the District Court?s dismissal of a complaint filed by fifteen property owners whose homes and businesses are slated for condemnation, finding that the use of eminent domain by the Empire State Development Corporation for the proposed 22-acre Atlantic Yards and Redevelopment Project in and around the Metropolitan Transit Authority?s [...

Hawai?i Supreme Court Finds No Violation of Nonconforming Use Statute for Restaurant

Posted on February 03, 2008
In 1961, the owner of Colony Surf, a residential apartment building, subleased a ground-floor restaurant to Colony Surf Development Corporation for the purpose of operating Michel?s Restaurant. At the time, the restaurant was considered an accessory use...

PA Cmwlth Court Finds Nutrient Management Act Does Not Preempt Enforcement of Local Zoning Ordinance

Posted on February 02, 2008
The Commonwealth of Pennsylvania enacted the Nutrient Management Act (NMA) (3 Pa. C.S. sec. 519) which provides, in part, that ?No ordinance or regulation of any political subdivision or home rule municipality my prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients?if the municipal [...

NE Supreme Court Finds Mutual Impact Easements Between Farmers and Potential Homeowners Constitutional

Posted on February 01, 2008
Otoe County enacted a zoning ordinance, that among other things, prohibits the construction of single-family dwellings in general agricultural districts that are within a one-half mile radius of certain animal feeding facilities unless the owner of the dwelling grants an impact easement to the owner of the facility and the facility owner agrees to the [...

N.C. Appeals Court Finds No New Notice Required for Rezoning Where Alteration of Original Proposal was Insubstantial

Posted on January 31, 2008
As noted in an earlier post on this blog, the procedural notice requirements for zoning actions are often attacked particularly when the initial hearing continues for future dates, and where the reviewing board imposes conditions altering in some way the initial proposal...

Property Rights Initiatives to be Before California Voters Again

Posted on January 30, 2008
Two new property rights initiatives have been certified for the ballot in June in California, with an additional proposal on the horizon. According to the Eminent Domain Reform Now coalition, the Homeowners Protection Act has qualified to be placed before the voters in California in June 2008...

NJ Appeals Court Upholds Variance and Board?s Decision to Bifurcate Use Approval from Site Plan

Posted on January 29, 2008
The Board of Adjustment unanimously approved a use variance subject to site plan approval, for the construction of an 11,000 square foot health and fitness center, with a variety of incidental and accessory uses on a 33.2 acre tract of land located in a C-1 zone...

N.H. Supreme Court Finds Adjacent City Lacks Extraterritorial Authority to Impose its Density Requirements on Straddled Parcel

Posted on January 28, 2008
It is not uncommon for property owners to have land located within more than one zoning district, and at times, a landowner can find that their parcel is actually in two different municipalities. This can complicate matters when the municipalities do not have coordinated planning and zoning for areas along their shared borders...

NY Appeals Court Holds Laches Barred Neighbors? Request for Permanent Injunction for Maintenance of a Boathouse Already Built

Posted on January 27, 2008
Neighbors or adjacent property owners who desire to challenge a decision resulting in a building permit need to be mindful of timing. Once an approval has been granted, to best preserve any rights to an appeal, plaintiffs should immediately seek an injunction which would prevent the applicant from beginning or continuing construction pending the outcome of the [...

Town Zoning Bylaw Provides Necessary Specificity in Delegation of Standards for Special Permit Review

Posted on January 26, 2008
When a local legislative body delegates to another body the authority to review applications for special use permits, the delegation must contain adequate standards to guide the board in making a decision so as not to give that board unbridled discretion...

N.C. Appeals Court Holds State Law Allowing for Relocation of Sign Preempts County Code Prohibition on Moving Nonconforming Signs

Posted on January 25, 2008
In 2001, the county amended its ordinance so that billboards are no longer permitted in the highway business (HB) district. The company, which owns a billboard erected in 1997 in the HB district, was informed in 2004 that the sign would have to be moved for widening of the highway...

Zoning Requires Uniformity and CA Appeals Court Says Developer Agreement is Not a Substitute for Rezoning

Posted on January 24, 2008
Thirteen states, including California, provide statutory authorization for municipalities and developers and to enter into develoment agreements. The development agreement is, in essence, a bilateral contract between the municipality and the developer whereby the municipality agrees to guarantee to the developer the right to develop the project for a defined number of years regardless of future changes [...

First Circuit Court of Appeals Upholds Concord, N.H. Ban on Electronic Messaging Signs

Posted on January 23, 2008
An ordinance enacted by the City of Concord, New Hampshire prohibiting all electronic messaging centers (all signs that ?appear animated or projected? or ?are intermittently or intensely illuminated or of a traveling, tracing, scrolling, or sequential light type? or ?contain or are illuminated by animated or flashing light?) was found to be content-neutral and narrowly [...

New Cell Tower Law Takes Effect in North Carolina

Posted on January 22, 2008
Although Congress passed, and the President signed, the Telecommunications Act of 1996 for the purpose of ensuring a national telecommunications infrastructure, some states believe that further guidance for municipalities is needed and/or that statewide uniformity is desired...

MA Supreme Court Finds Conservation Commission?s attempt to reopen hearing is invalid, rendering its decision untimely and without effect

Posted on January 21, 2008
The Conservation Commission commenced a public hearing on the dredging project on July 15, 2003, and continued it, with the applicant?s consent, to August 5, August 19, and September 16, when it closed the public hearing. On September 29, the Commission received a letter from abutting owners; on September 30 the Commission voted to reopen [...

Votes of Two Planning Board Members Stand Despite Timing of Appointment and Alleged Conflicts

Posted on January 20, 2008
Former House Speaker Tip O?Neill was known for saying, ?all politics is local.? Nothing can better describe the environment of land use decision making. In a lengthy dispute over a retail shopping center, leading to four separate lawsuits on various land use and environmental causes of action, the neighbors? last challenge involved, among other things, [...

NY Appellate Court Modifies Conditions on Permit for Accessory Building

Posted on January 19, 2008
Zoning boards in New York are authorized to impose appropriate conditions upon the granting special permit and variance applications, but these conditions must be reasonable and aimed at minimizing adverse impacts to an area that might result as a result of the granting of that permit...

New Oregon Environmental Justice Law Creates Task Force and Requires Agencies to Take Specific Steps to Increase Public Participation

Posted on January 18, 2008
Effective January 1, 2008, a new law in Oregon not only establishes an environmental justice task force, but it requires the natural resources agencies (fourteen in all) to follow prescribed steps to provide greater public participation and to ensure the involvement of persons who may be affected by agency actions...

Third Circuit Finds Denial of Tower on Firehouse Land, Funded by Wireless Company to Serve Both, Violates Telecommunications Act

Posted on January 17, 2008
The volunteer fire company operates a firehouse in a medium density residential district, pursuant to a special exception granted about 40 years ago. The radio systems serving the county and the township have coverage gaps and poor communications has contributed to the deaths of two people...

FL Appeals Court Finds Homeowners Have Standing to Allege Permits Inconsistent with County Comprehensive Plan

Posted on January 16, 2008
Homeowners who reside on lake-front property on Corner Lake, challenged the granting of a conservation area impact permit and a boat ramp permit to the developer-applicant in conjunction with a residential development on the Lake. The homeowners alleged that the permit applications were inconsistent with the County Comprehensive Plan...

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