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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

Court Upholds Contempt Finding Where Farm Owner Violated Zoning

Posted on May 23, 2010
Following the issuance of a TRO that prohibited ?all further construction and/or excavation?[and the] depositing [of] any materials of any type upon the premises,? property owners, who engaged in limited farming activities on 41 acres, had, among other things, proceeded with the construction of a farm stand and a 10-foot high stone wall without a [...

Use Variance Denial Upheld Where Petitioner Failed to Prove Preexisting Nonconforming Use

Posted on May 22, 2010
Since zoning boards have broad discretion in determining whether to grant variances, judicial review is limited to determining whether the board?s action was illegal, arbitrary or capricious or an abuse of discretion. The appeals court determined that the petitioner failed to meet her burden of establishing a preexisting nonconforming use, and therefore upheld the board?s [...

Petitioners Lack Standing to Challenge to Wal-Mart Site Plan Approval

Posted on May 22, 2010
The petitioner-plaintiff United Food and Commercial Workers Union and six individuals who own residential property in the Town commenced a proceeding challenging the proposed construction of a Wal-Mart Supercenter. The individual plaintiffs live at distances of 1...

Denial of Area Variance from Lot Frontage Requirement Upheld

Posted on May 22, 2010
While constructing a single-family residence, the petitioner sought permission to subdivide the property to create a second lot which would not have frontage on the public street. The planning board denied the subdivision request and petitioner sought and was denied an area variance from the lot frontage requirement in accordance with Town Law sec...

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Preliminary Subdivision Approval Upheld and Takings Claim Dismissed

Posted on May 21, 2010
A New York appellate court upheld a preliminary subdivision approval since the board?s actions had a rational basis and were not arbitrary and capricious. Although the petitioner contended that its private property rights were adversely affected by the Board?s determination, the Court held that any such rights must be enforced through a private action against [...

Approval of Feedlot within One Mile of Site for Which a Residential Building Permit Had Been Issued is Not Arbitrary

Posted on May 20, 2010
On May 1, 2008, Hagerott obtained a permit for a new house. He subsequently moved a mobile home to the land, pending construction, obtained an address and permits for a septic system and road approach, and began grading. Over the next few months, Berger applied for and was granted a conditional use permit to relocate [...

New Article Focuses on Sustainable University Expansion in Urban Areas Using Columbia University as a Case Study

Posted on May 20, 2010
In two weeks the New York Court of Appeals will hear the Columbia University eminent domain case, where oral arguments are expected to focus on whether a private university expansion project can constitute a public use for purposes of eminent domain, the definition of blight, and whether the type of pretext warned about in the [...

Petitioners Lack Standing to Challenge General Town Procedures for Approval of Development Projects

Posted on May 19, 2010
Petitioner, Brunswick Smart Growth, Inc. a citizen action group, along with two individuals, sought to challenge the procedures followed by the Town for the approval of development projects. Specifically, they allege that the Town?s 2001 comprehensive plan fails to comply with N...

2010 ALI- ABA Land Use Institute Line-Up Announced

Posted on May 19, 2010
One of the premier annual land use law programs for lawyers, planners and public officials, the ALI-ABA Land Use Institute, visits Santa Fe, New Mexico in August (25-28 at the La Fonda Hotel). The two and a half day program offers the traditional fare ? land use case law update, a session on federal laws [...

Utah Supreme Court Rules that Citizen Group Has Standing to Challenge PUD

Posted on May 18, 2010
In 2002, the Grand County Council (the Council) approved a 2,000-acre planned unit development (the ?Cloudrock Development?) located on a mesa above the Glen Canyon Aquifer, which serves as the main source of culinary water for Moab, Utah. The Council?s approval of the Cloudrock Development (the Development) was conditioned upon terms set out in a [...

Board Must Make Specific Findings on Church?s Application for Conditional Use Permit

Posted on May 17, 2010
Following the granting of a conditional use permit to the United Methodist Church for the construction of a church building, a school building, and parking areas, protracted litigation ensued whereby the appeals court reversed the decision of the board and remanded with instructions...

NYS DEC Adopts Modifications to Environmental Benefits Projects Policy

Posted on May 16, 2010
At the end of 2009 the New York State Department of Environmental Conservation adopted revisions to its Environmental Benefits Projects (EBPs) policy. This revised policy replaced the existing EBP policy (CP-37) and provides guidance to DEC staff and the regulated community regarding DEC?s use of EBPs in the settlement of enforcement actions...

BSA?s Approval of Ministerial Modification to 1963 Zoning Variance Upheld

Posted on May 15, 2010
The New York City Board of Standards and Appeals (BSA) granted an amendment to a 1963 zoning ordinance to allow the College of St. Francis Xavier to merge its zoning lot with an adjacent lot owned by the Clothing Workers Center Incorporated. In upholding the Board?s decision, the appellate found that there was a rational [...

Although N.Y. Open Meetings Law Violated, ZBA?s Conditional Variance Upheld

Posted on May 15, 2010
Following site plan approval for the construction of a new home, the petitioner built the home according to the approved plan only to discover that due to an error in the topographical data used by his architect, the completed home exceeded the allowable height by three feet...

Second Circuit Holds Village Did Not Violate the Constitution by Tearing Down Building Damaged by Fire

Posted on May 14, 2010
An old hotel was badly damaged in a fire. The next morning, a team of contractors acting under the direction of the Village Board of Trustees, demolished most of what was left of the building. A television station, which owned the building and related individuals filed a Section 1983 suit, alleging that their due process [...

No Underlying Public Purpose in Condemnation by Utility

Posted on May 14, 2010
Syracuse University sought to annul a determination by Project Orange Associates Services Corporation (POASC) authorizing condemnation of real property owned by the University on which a cogeneration facility and steam plant are located on the grounds that the purported public use of the acquisition is illusory...

Maryland Court of Appeals Holds that Planning Board Must Consider Growth Objectives in General Plan When Reviewing Subdivision Plan

Posted on May 13, 2010
The planning commission approved Cox?s preliminary subdivision plan that contained 20 single-family detached residential lots on 118.30 acres. The approval was challenged by the Greater Baden-Aquasco Citizens Association and eight individual area residents who contended that the Commission was required to consider if and how the proposed subdivision complied with the numeric residential growth objective [...

NJ Trial Court Finds 24-Hour Use Restriction on Convenience Stores Unconstitutional

Posted on May 12, 2010
Plaintiff NOH, Inc. (?NOH?) leased property in the Borough or Rutherford from owner 7-Eleven, Inc. in October, 2006 and entered into a franchise agreement shortly thereafter. The property had never been operated as a 24-hour business and in May, 2007, the Borough Council passed Ordinance No...

CT Supreme Court Finds Government?s Bad Faith Exercise of Use of Eminent Domain Violates Takings Clause

Posted on May 11, 2010
New England Estates and owners of land taken by eminent domain filed a 42 U.S.C. § 1983 claim against the town. A judgment was rendered in favor of New England Estates and the landowners, and the town appealed claiming that: 1) the trial court lacked subject matter jurisdiction because New England Estates and the owners [...

N.H. Supreme Court Finds Involuntary Lot Merger Stands Despite Error on Part of Planning Director

Posted on May 10, 2010
At issue in this case is lakefront property on Governor?s Island in Gilford, New Hampshire, which Respondent purchased in 2002. At one time, the property was comprised of two parcels, lots 9 and 10, but sometime in the 1980s, the Town merged the parcels to create a single lot, known as lot 7...

Ordinance Requiring Absentee Owner to Obtain a Certificate of Sustainability Invalidated for Failure to Follow Environmental Review Requirements

Posted on May 09, 2010
Plaintiff commenced an action seeking to invalidate an ordinance because the City failed to issue a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA). The Ordinance required that owner-occupied properties that are sold to an absentee owner must have a certificate of sustainability...

Denial of Area Variance Upheld Where Board Found it would Produce Undesirable Change in the Neighborhood

Posted on May 09, 2010
An appeals court upheld the denial of an area variance by the zoning board of appeals noting that the Board relied on, among other things, a 300-foot radius map which depicted the surrounding neighborhood, when concluding that the variance, which was substantial, would produce an undesirable change in the neighborhood...

Modified Conditional Use Permit Restricting Density Upheld on Appeal Despite Assertion that Change Makes the Project Economically Unfeasible

Posted on May 08, 2010
The Jefferson County Zoning and Development Review Ordinance allowed a property owner to create one lot for every ten acres with a minimum lot size of three acres. The ordinance, however, included a Development Review System, which allows for higher density with regard to projects such as residential subdivisions if the owner obtains a Conditional [...

NYC Board of Standards and Appeals Has Authority to Deny Special Permit for Enlargement of Residence

Posted on May 07, 2010
The petitioner was granted a special permit in April 1999 by the Board of Standards and Appeals for New York City for the enlargement of an existing home on his property. The addition was not constructed as planned so in 2002 petitioner submitted a new set of plans to Department of Buildings (DOB), seeking to [...

Federal District Court Dismisses Suit Over Construction of Distributed Antenna System

Posted on May 06, 2010
Homeowners brought a $100 million dollar damages suit against the Town, NextG and its customer service provider MetroPCS claiming that the building of a Distributed Antenna System, a fiber optic network, devalued their property and amounted to constitutional takings, fraud, nuisance and a deprivation of due process...

Quasi-Judicial Immunity Extended to Zoning Board Attorney in Variance Denial Matter

Posted on May 05, 2010
Plaintiff?s Jeff Alfano and Kelly Hicks-Alfano owned a home in Farmingdale, New York and wished to subdivide the property to build a second home. Shortly after petitioning the Building Department for the appropriate permits, the Village Board of Trustees enacted a moratorium prohibiting the plaintiffs from building a second home...

Denial of Subdivision Application Upheld Where Applicant Failed to Demonstrate Compliance with the Ordinance Despite Fact that Board Violated Open Meetings Law

Posted on May 04, 2010
In February 2006, Appellants, owners of 152 acres of real properly in Kootenai County, Idaho, filed an application for a major subdivision, which was to contain 20 lots, ranging between 5 and 10 acres per lot, and a dedicated no-build area in the 70 acre area known as ?the meadow,? a non-jurisdictional wetland subject to [...

Federal Task Force on Climate Change Adaptation Invites Public Comment on Interim Progress Report

Posted on May 04, 2010
The federal government’s Interagency Task Force on Climate Change Adaptation represents twenty federal agencies and is charged, under E.O. 13514, with developing federal recommendations for President Obama on adapting to climate change. The Task Force recently released an Interim Progress Report and invited public comment on this report and the work of the Task Force...

New Article Explores Complements and Contradictions in Community Benefits Agreements and Comprehensive Land Use Plans

Posted on May 03, 2010
Since the late 1990s, community benefits agreements (CBAs) have offered an opportunity to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development...

Relevant Time Period for Assessing Damages in RLUIPA Case Determined to Run From Date of Application to Use Property as a Church Until Enactment of Redevelopment Plan

Posted on May 03, 2010
Lighthouse Institute for Evangelism purchased property at 162 Broadway and applied, through their attorney, for a variance from property?s restriction under the C-1 Zoning Ordinance 20.6.13, which allowed the property to be used for assemblies but not for churches...

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