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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

APA Announces 2009 Planning Law Review

Posted on June 12, 2009
The American Planning Association is offering its popular annual Planning Law Review audio/web conference on June 24, 2009 from 4:00 p.m. ? 5:30 p.m. EDT. This is a great way to keep current on Supreme Court, circuit, and state court decisions and legislative changes from the past year...

Neighbor Had No Avenue of Appeal for Decision of Architectural Review Committee Other Than Court Within Statute of Limitations Timeframe

Posted on June 11, 2009
A Neighbor objected to the approval by the Committee of Architectural Review for the design of a single family house. The petitioner challenged the determination in an Article 78 proceeding, and did not join the property owners who received the approval...

Zoning Board Properly Found Athletic Facilities Constituted a Permissible Educational Use

Posted on June 11, 2009
An appeals court determined that the zoning board of appeals properly determined that proposed high school athletic facilities constituted a permissible use under the applicable zoning code, finding that such determination was neither unreasonable nor irrational...

No Vested Right to Maintain Laundromat Based on Permit Issued in Error

Posted on June 10, 2009
A portion of the petitioner’s commercial building used for a laundromat was destroyed by fire in December 2005. In November 2006 the petitioner applied for a building permit to renovate the destroyed portion of the building. While his application was pending, the Town amended its zoning ordinance to prohibit laundromats in the district, effective January [...

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Use Variance Upheld Permitting Mixed Use in Zoning District that Allowed Both Residential and Office Uses But Not Explicitly Mixed Use

Posted on June 09, 2009
Peter Hill applied to the Zoning Board of Adjustment for use and area variances for property that includes a historic building with 19 rooms and over 7000 square feet of living area. The street on which the property is located runs through two different zoning districts ? an office district and the center business district...

Wisconsin Appeals Court Discusses Distinction Between Use and Area Variances

Posted on June 08, 2009
Driehaus owns more than seventeen acres of property, with over six hundred feet of frontage on Geneva Lake. The property is zoned C-2, Upland Resource Conservation District and included two residences and an eight-car garage. The garage was built in 1906 and is located less than three feet from the property?s boundary line...

Appeals Court Upholds Planning Board?s Denial of Subdivision Application

Posted on June 07, 2009
The planning board denied Petitioner’s application for a subdivision since the petitioner failed to satisfy the required minimum lot size under local law. The Petitioner relied on a subsequent local law that provides an exemption for lots held in single or separate ownership on the effective date or for an unimproved building lot adjacent to [...

Condemnation to Gain Access to Stream and Bulkhead Structure is a Valid Public Purpose But Taking of Fee Interest Was Excessive

Posted on June 06, 2009
Following failed attempts to negotiate a right of access with the Petitioner, the Village decided to condemn a 1.738 portion of Petitioner’s property to gain access to a bulkhead structure located at the intersection of a river and stream which flows through the Village...

Appeals Court Upholds Order Requiring Removal of Residential Camp Constructed in Violation of Zoning Regulations and Civil Penalty of $50,000

Posted on June 05, 2009
After the Town determined that the property owner constructed a residential camp on his property in violation of the local zoning regulations, the Town commenced an enforcement action, and following a three week bench trial, the court found for the Town and ordered the property owner to remove the structure and pay a $50,000 civil [...

Tree Removal Ordinance Upheld Including Tree Replacement Fee and Planting on Public Property When Replanting in Original Location is not Feasible

Posted on June 04, 2009
The New Jersey Supreme Court overruled both the trial court and appellate court in upholding a municipal tree removal ordinance as a valid exercise of the police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at [...

City?s Condemnation of Property for Road Construction to Alleviate Traffic is a Valid Public Purpose

Posted on June 03, 2009
Following a study for a reconstruction project to “improve traffic mobility for vehicles, pedestrians, and bicyclists and improve truck access?”, the City of Binghamton (NY) condemned .54 acres of Plaintiff’s property needed to alleviate an inadequate turning radius that existed at the intersection...

Township Preempted From Enjoining a Proposed Hog-Feeding Operation

Posted on June 03, 2009
The owner of approximately 30 acres began construction of a 2,400-head hog operation at about the same time that the township adopted a zoning ordinance. The new zoning handbook prohibits concentrated livestock operations with more than 800 animals and imposes setbacks and screening requirements on smaller operations...

NY Court of Appeals Set to Hold Oral Arguments On Whether Subpoena May be Issued to Private Citizen Who Misrepresented Letter at Hearing

Posted on June 02, 2009
Virginia Parkhouse, a volunteer with a Manhattan architectural preservation group called Landmark West!, attended an October 2006 public hearing held by the Landmarks Preservation Commission to determine whether to give landmark status to the Dakota Stables and New York Cab Company Stables on the Upper West Side...

Florida Appellate Court Finds Taking in Failed Exaction

Posted on June 02, 2009
This case involved a successful takings claim in the trial court against defendant district in a matter that was before the Florida appellate courts for the fourth time.� The matter involved a 1994 permit to use more of the subject site than had previously been permitted...

Requiring Church to Obtain a Permit to Operate a Homeless Shelter Does Not Impose a Substantial Burden under Either RLUIPA or the Florida RFRA

Posted on June 01, 2009
As part of its Christian mission, the Westgate Tabernacle Church opened its church property as a shelter for homeless in Palm Beach County. The property is located in a multi-family residential high density zoning district which allows ?congregate living facilities? and not homeless shelter, but congregate living facilities can house up to 6 people as [...

Modifications to Proposed Zoning Amendment Based on Input From Public Hearing Do Not Require Second Hearing

Posted on May 31, 2009
Following a public hearing on proposed amendments to a local zoning ordinance, the town board made modifications to the proposed amendment based upon, in part, the Petitioner’s objections. The modifications actually made the ultimate zoning classification more favorable to the Petitioner’s interests than what was originally proposed...

Comprehensive Plan Goal May Not Be Used to Deny Facility that Meets Ordinance Standards

Posted on May 30, 2009
After Nestle built a bolting plant for water in the Town of Fryeburg, it desired to drill a well in the nearby Town of Denmark, and then pipe the water to a water-loading station in a residential area of the Town of Fryeburg. The planning board issued a permit for a water loading facility on [...

VT Supreme Court Upholds Approval of Wind Generation Facility, Noting Among Other Things Economic Benefits to the Region and Support for Alternative Energy in the Regional Plan

Posted on May 29, 2009
While acknowledging that the project would have some negative impacts on aesthetics, the Vermont Public Service Board nonetheless issued a certificate of public good for a wind generation facility to be located in Sheffield and consisting of 16 turbines with rotors 315 feet in diameter on towers 262 feet high concluding that the impacts would [...

Tree Removal Ordinance Upheld Including Tree Replacement Fee and Planting on Public Property When Replanting in Original Location is not Feasible

Posted on May 29, 2009
The New Jersey Supreme Court overruled both the trial court and appellate court in upholding a municipal tree removal ordinance as a valid exercise of the police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at [...

Court Finds Nonconforming Use Was Abandoned

Posted on May 28, 2009
The petitioner appealed a determination of the zoning board concluding that the rental of her basement to tenants, in her single-family home, is an illegal use of the property. The petitioner argued that the use was a legal pre-existing nonconforming use...

Washington State Governor Issues Climate Change Executive Order

Posted on May 28, 2009
Governor Christine Gregoire issued an Executive Order this week entitled “Washington’s Leadership on Climate Change,” tasking the Department of Ecology and the Department of Transportation with a number of important activities. For example, the executive order calls for: Continuing to work with six other Western states and four Canadian provinces in the Western Climate Initiative to [...

Fifth Circuit Court of Appeals Finds Property Owners Lacked Standing to Bring RLUIPA Claim

Posted on May 27, 2009
The Berry’s, owners of a piece of property in Jefferson Parish, sued the Parish following a rezoning of their land, alleging, among other things, that the Parish changed the zoning of their property to prevent a Christian-affiliated developer from building housing for minorities, the elderly and disabled...

Neighbors Challenge Board Procedures for Zoning Amendments Allowing Special Use Permit for Arborist and Landscaping Services

Posted on May 26, 2009
In what can best be characterized as long and protracted litigation over the use of property in the Village for a plant nursery and arborist business, the Village reached a stipulation agreement with the property owner, “so ordered” by the Village Justice in April 2003, whereby the Village agreed to dismiss the charges against the [...

Ohio AG Publishes New Criminal Ordinance and Updated Model Licensing Ordinance for Sexually Oriented Businesses

Posted on May 26, 2009
The Ohio Legislature enacted S.B. 16, effective September 2007 which, among other things, prohibits sexually oriented business from operating between midnight and six am except where establishments have liquor licenses they may operate pursuant to the license so long as there is no nude entertainment; prohibits patrons from touching nude or semi-nude entertainers; prohibits entertainers [...

Planned Unit Development?s Required Perimeter Setback is Not a ?Yard? and May be Included in Calculation of Open Space

Posted on May 25, 2009
The owner of 18.8 acres, zoned to permit 12 residences per acre as a conditional use, sought to develop 11.75 units per acres and submitted a plan showing required vegetated perimeter buffers, parks, and trails. The plan showed 5.66 acres of open space; the code required 5...

Courts May Not Apply Their Own ?Common Sense? Judgment as to Secondary Effects of Adult Uses

Posted on May 24, 2009
A New Jersey appeals court held that it is not proper for a Court to apply its own ?common sense? in concluding that a zoning ordinance, such as one that prohibits adult stores, serves a substantial governmental interest. The court must evaluate the availability of alternate sites...

Failure to Exhaust Administrative Remedies Results in Dismissal of Action

Posted on May 24, 2009
Following the denial of their application for a certificate of occupancy and for a certificate of completion for certain residential property, the petitioners brought an action seeking to review the determination of the building department and to compel the Village to issue the certificates...

Neighbors? Challenge to Storage Facility for Personal Vintage Motorcycle Collection Dismissed for Failure to Request Injunctive Relief

Posted on May 23, 2009
The Respondent Wilzig, obtained a building permit to construct a 12.000 square foot storage facility on his property to be used to house, among other things, his collection of more than 100 vintage motorcycles. The first building permit he received was for the foundation only, and a second permit issued subsequent to the filing of [...

Town Improperly Denied Special Use Permit for Convenience Store Attached to Gas Station

Posted on May 21, 2009
An appeals court determined that the zoning board of appeals improperly denied an application for a special use permit to allow the owners of property on which a gas station and auto repair shop existed to convert the shop into a convenience store. In 1993, the town had granted the previous owner a special use [...

New Law in Virginia Authorizes Incentives for Green Roofs

Posted on May 20, 2009
A new law enacted earlier this year in the Commonwealth of Virginia authorizes counties, cities, and towns to grant incentives or provide regulatory flexibility to encourage the use of green roofs in the construction, repair, or remodeling of residential and commercial buildings...

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