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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

Rezoning of Property from Commercial to Residential Is Not a Taking Where Plaintiff Fails to Demonstrate Substantial Interference with Investment-Backed Expectations

Posted on April 05, 2010
Gilmour Realty, Inc. bought two adjoining lots directly north of its existing office for purposes of expanding its operation. Before purchasing the lots, the city verified that the property was zoned U-4 which permitted commercial use. In March 2003, the city council approved a site plan for conversion of the properties for office use...

Iowa Smart Growth Bill Awaits Action By Governor

Posted on April 04, 2010
Thanks to Prof. Gary Taylor of Iowa State University for the following information: Iowa’s Smart Planning bill (SF 2389) has worked its way through the state legislature and during the final two days of the session a version passed that was very similar to the version as originally proposed...

Junked Vehicle Used as a Car Planter is not Art Entitled to First Amendment Protection

Posted on April 04, 2010
?This appeal concerns whether a junked-vehicle ordinance designed to eliminate eyesores and promote public order ? can be applied to a wrecked Oldsmobile 88 that has been put to use as a cactus planter, colorfully painted, and adorned with the words ?make love not war...

Zoning Ordinance Allowing Only One Triplex on Wireless Tower Upheld

Posted on April 03, 2010
Wireless Properties, LLC sought to build a 180-foot monopole communications tower in Chattanooga on R-3 zoned property. The Board, however, denied Wireless? permit to build the tower because Ordinance No. 8697 placed a condition on the property when it was rezoned that ?only one triplex can be constructed on this property...

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Rejection of Application for Affordable Housing Project Did Not Violate Due Process or Equal Protection

Posted on April 02, 2010
Two Connecticut real estate developers submitted applications to develop certain property as affordable housing. There applications were rejected, and they brought claims for denial of substantive and procedural due process rights as well as for violation of their equal protection rights...

Landmarks? Designation Process Upheld Where Preservation Group Failed to Demonstrate Standing

Posted on April 01, 2010
The City?s Landmarks law provides the public with the ability to nominate properties for landmark designation by submitting a Request for Evaluation form. After receiving a request, the Landmarks Preservation Commission?s Request for Evaluation Committee, which includes the Landmarks Chair, screens the nomination in order to determine whether additional consideration is appropriate...

New Book on Planned Communities

Posted on April 01, 2010
Professor Daniel R. Mandelker?s newest book, Designing Planned Communities, is now available. The book provides a clear statement of the design issues that are critical to creating livable and well-designed planned communities. The book shows how design concepts for planned communities can be translated into effective design guidance by local governments...

Court Agrees Highest and Best Use of Property Was Residential in Eminent Domain Proceeding

Posted on March 31, 2010
Four cases were decided together concerning the Town of Branford?s exercise of eminent domain. The town appeals from judgment in favor of plaintiffs, Barbara and Perrotti, owners of the property at the time of the taking, and the plaintiff New England Estates, the developer who had a contract with the owners to purchase the property...

Drafting Lessons for Nonconforming Use Provisions in Zoning Laws

Posted on March 31, 2010
As demonstrated by the number of reported cases focused on the subject of nonconforming uses, a new article now available for free on SSRN offers practical strategies for drafters of local zoning ordinances and laws on the subject of abandonment, discontinuance and amortization of nonconforming uses...

No Standing to Challenge Denial of Special Use Permit Where Plaintiff Could Not Prove Aggrievement Due to Lapse of Time

Posted on March 30, 2010
The plaintiff contracted for the purchase of land conditioned on a special use application approval by the planning and zoning commission. The contract was open for one year, beginning on July 25, 2006, expiring on July 25, 2007. The defendant-appellant argues that the plaintiff was not aggrieved by the denial of the special use application [...

Board Member Who Tried to Resolve Dispute Prior to Appointment Has a Disqualifying Conflict of Interest

Posted on March 29, 2010
Viborg Cooperative Elevator Association (?VCEA?) owned property zoned agricultural that abutted a residentially zoned area. Armstrong and Petersen (?Abutters?) owned single-family residences on the abutting residentially-zoned property. In 2006, VCEA sought a building permit to construct a commercial grain storage facility on the Property, although what was really needed was a conditional use permit (CUP)...

Illinois Statute Limits Setback Requirements for Wind Towers

Posted on March 28, 2010
Effective January 1, 2010, a new law in Illinois now provides that a county or municipality, including a home rule unit, may not require a wind tower or other renewable energy system that is used exclusively by an end user to be setback more than 1.1 times the height of the renewable energy system from [...

Court Upholds Denial of Permits for Fish and Game Farm

Posted on March 27, 2010
Plaintiffs applied for and were denied building permits on land they own located in the Town?s conservation and conservation overlay zones and they were denied a variance so they could build a fish and game farm. The trial court remanded the matter to the zoning board finding that decision to deny the requests was ?underdeveloped...

No Property Interest in Contingent Approval and Where Any Alleged Final Approval Not Contained in Minutes of Meeting

Posted on March 26, 2010
Plaintiffs, father and son, brought a proposal before the Board to develop duplex apartments on their property. After the Board suggested it would approve the general plan, Plaintiff sretained an engineer to put together development and construction plans...

Landmark Designation Case Dismissed on Ripeness Grounds and Failure to State a Claim

Posted on March 25, 2010
Property owners commenced a lawsuit alleging damages when property that they allegedly planned to develop was landmarked by the New York City Landmarks Preservation Commission. The City moved to dismiss certain claims concerning its decision to landmark the property on grounds that these claims were not ripe for adjudication and for failure to state a [...

District Court Dismisses State Taking Claim but Allows Federal Takings, Retaliation, Equal Protection and Due Process Claims to Proceed

Posted on March 24, 2010
Plaintiff petitioned the City for annexation of their property in order to create a residential subdivision which was a part of the 60 acre lot of farmland they purchased. The plaintiffs received preliminary plat approval but the development ran into problems...

Owner Violated Township?s ?Tree Protection? Ordinance By Cutting Trees on Undeveloped Parcel

Posted on March 23, 2010
Defendant owns an undeveloped parcel undisputedly larger than 10 acres and smaller than 25 acres. In 2007, plaintiff received complaints from nearby residents defendant was cutting down trees. Defendant was ticketed for violating the ordinance. The misdemeanor charge was dismissed and plaintiff filed this civil suit, seeking damages and an injunction prohibiting further cutting...

Sandpit Owner Exceeded Scope of Excavation Permit

Posted on March 22, 2010
Plaintiffs own and operate a sandpit. The owner of land abutting the sandpit qualifies as a ?disapproving abutter? and as such, excavation is prohibited within fifty feet of abutter?s land. Plaintiffs applied for an excavation permit, and during excavation violated the fifty-foot setback prohibition...

Development of Fire Code Does Not Violate Equal Protection and is Not Discriminatory

Posted on March 21, 2010
The plaintiff, New Day, bought and operated a poultry farm that existed since 1975, and sought to build new environmentally improved barns. In May of 2008, they received an exemption to be listed as ?agriculture? by the zoning inspector and began the renovation...

Commission Decision to Not Award Pine Barrens Credits to Property in Westhampton Reversed on Appeal

Posted on March 20, 2010
Residents of the Town of Southampton who owned a 52 acre tract of land in Westhampton that was in the Long Island Pine Barrens commenced an Article 78 proceeding seeking to annul the determination of the Central Pine Barrens Joint Planning and Policy Commission which denied their application for Pine Barrens credits...

Municipal Code Requiring Closing of Boarding House Did Not Violate the Fair Housing Act

Posted on March 19, 2010
When the City of Pasadena sought to shut down a boarding house after a fire in the house resulted in the death of a resident, the owners of the boarding house sought a preliminary injunction of the Pasadena Municipal Code (PMC), claiming it violated the Fair Housing Act (FHA) and the Fourteenth Amendment...

Conversion of Repair Bay to Carwash and Addition of Convenience Store Constitutes a Change in a Nonconforming Gas Station

Posted on March 18, 2010
The applicant owned a small corner property zoned R-7 residential. However, for many years the property had been used as a gas station with bays for vehicle repairs and with limited sales of food and beverages. The applicant requested a special exception to install a car wash facility and a convenience store on the land [...

Auto Body Shop Owner Fails in ?Class of One? Equal Protection Claim of Selective Enforcement

Posted on March 17, 2010
The owner of an auto body shop and the City had a long acrimonious relationship dating to 1980 when the City condemned his land, paid him compensation plus a sum to move to his new location. Since that time, the owner believes the City has been trying to drive him out of business specifically though [...

Deposition of Board Member Allowed When There is Personal Interest in the Outcome of Matter Before Board

Posted on March 16, 2010
In determining whether a deposition of a Board member should be allowed, a Connecticut Court found that one should be allowed to determine whether a board member had a personal interest in the outcome of a matter before the board. The Court notes that it is extremely hard to prove bias, but that ?...

Lost Original Zoning Ordinance May Be Replaced with Copy Under State Lost Public Records Act

Posted on March 15, 2010
In 1985, the Newton County Board of Commissioners adopted a ?new zoning ordinance? and in 1997 East Georgia Land and Development Company LLC (EGL) requested a letter verifying that its proposed landfill complied with the local zoning ordinance. The County refused EGL?s request though holding the landfill was not a permitted use under the 1985 [...

Keeping of Two Mobile Homes on Property Not a Violation of Town Code

Posted on March 14, 2010
After the defendant was cited for violating the town code by maintaining more than one mobile home on his property, he appealed, claiming that at the time the town code was adopted, he had maintained two mobile homes on his property for approximately seven years...

Application Dillon?s Rule in Virginia Prevents Municipality from Incorporating Federal Criterion into Ordinance Designating Lands Included in Resource Protection Area

Posted on March 13, 2010
In a suit for declaratory and injunctive relief against enforcement of a city zoning ordinance on the grounds that it exceeded city authority in violation of Virginia law and Dillon’s rule, The Virginia Supreme Court concluded that the ordinance, which makes inclusion in the federal Coastal Barrier Resources System a criterion for designating lands to [...

Wisconsin Enacts Amendments to Wind Energy Statute Requiring State to Create Uniform Siting Standards

Posted on March 12, 2010
Under a new law, the Wisconsin Public Service Commission (PSC) is directed create uniform siting standards for the placement of small wind farms. Prior to this change, only large wind farms (those with a nominal operating capacity of 100 megawatts or more), were subject to siting by the PSC, and small wind farms (those with [...

Class Action Lawsuit Alleging Excessive Building Permit Fees Allowed to Proceed

Posted on March 12, 2010
In a lawsuit arising from the town?s ??unlawful practices related to the collection, use, and allocation of [money]collected from the [p]laintiffs and others similarly situated, under the mechanism of building permit fees, ?? the Connecticut Supreme Court held that the certified class as consisting of ??entities that directly paid to the [town] the allegedly excessive [...

Voluntary Conveyance of Land to the Commonwealth Did Not Result in a Legal Subdivision of the Remaining Property

Posted on March 11, 2010
A zoning administrator’s ruling that a voluntary conveyance of land within the owner’s parcel to the Commonwealth for a road, physically separating the remaining portions of that parcel, did not effect a legal separation of such parcel into two lots, was upheld...

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