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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

Ninth Circuit Finds Penn Central Analysis Applies to Generally Applicable Development Conditions that Do Not Require Owners to Relinquish Rights in Property

Posted on October 27, 2008
As a condition of permit approval for a change in use from a house to a Subway sandwich shop, the City required the property owners to finance the upgrade of a stormwater line from the current requirement of a 12 inch pipe to a 24-inch pipe. The property owner challenged the requirement as a taking [...

Planning Board?s Imposition of Fee in Lieu of Parkland Dedication for Cluster Subdivision Upheld

Posted on October 26, 2008
Following approval of a preliminary plat for a cluster development of 113 acres, including 40 acres of open space, the petitioners received final plat approval subject to the payment of $558,250 as a fee in lieu of dedication of parkland pursuant to New York Town Law sec...

Subdivision Fee for Parkland May be Imposed as a Condition of Final Plat Approval

Posted on October 26, 2008
Finding that nothing in state statute circumscribes the planning board from imposing a fee in lieu of parkland as a condition to final subdivision approval where preliminary approval was previously granted, the Court upheld the imposition of a fee on a 23-lot subdivision...

4th Circuit Court of Appeals Finds Claims in Federal Court Precluded by State Court Decision, Upholding Subdivision Denial, Rezoning and No Violation of the FHA

Posted on October 25, 2008
The County denied Greengael?s subdivision application for a proposed mixed-use development that would have included low and moderate income housing, retail and single family homes. After the denial, the county also rezoned the property from residential to industrial use...

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New California Climate Change Law Ties To Land Use, Transportation and Housing

Posted on October 24, 2008
Governor Schwarzenegger signed into law SB 375, requiring, among other things, the creation of regional “preferred growth scenario” of land use and transportation improvements that provides for anticipated growth in jobs and housing, while meeting state-mandated goals for reducing greenhouse gas emissions...

Building Permit Constitutes a Property Interest But No Procedural Due Process Violation Found

Posted on October 23, 2008
In an unpublished opinion from the Sixth Circuit Court of Appeals, the Court determined that where a property owner who desired to demolish her garage and build a bigger garage received necessary approvals from the architectural review board and obtained a building permit from the Village zoning administrator, she did obtain a property interest in [...

Arizona Supreme Court Finds that State Statute Forcing Closure of Stores Selling Adult Books and Magazines During Certain Hours May Violate State Constitution

Posted on October 22, 2008
In December 2008, this blog reported on a case in the Arizona appeals court that upheld a restriction on the hours of operation for a sexually oriented business selling adult magazines under the State Constitution. This month, the State Supreme Court vacated the decision and remanded it to the trial court...

10th Circuit Court of Appeals Finds Operator of Adult Business Store Failed to Carry Burden Challenging Rationale for City?s Regulation

Posted on October 21, 2008
Doctor John?s operated stores that sold, among other things, a range of ?adult? products. Soon after Doctor John?s came to town, the City of Roy passed an ordinance regulating all ?sexually oriented businesses? and their employees. The ordinance recited findings supporting the need for the regulations based on case law, Congressional testimony, research papers, and [...

Motion for Rehearing of ZBA Decision Filed by Facsimile After 5:00pm on Deadline Day is Untimely

Posted on October 20, 2008
A developer applied for and was denied a special exception to excavate loam, sand, gravel and stone by the zoning board of adjustment. Through counsel, the developer sought a rehearing. The statute provides that the applicant has 30 days to appeal, beginning on the day following the decision...

North Carolina Appeals Court Finds Commission Lacked Authority to Adopt Modifications to Historic District Design Guidelines

Posted on October 19, 2008
In October 2003, two years after a meeting with the Chair of the Town?s Historic Preservation Commission, the Plaintiff submitted a sketch of a proposed building that arguably was in accordance with the guidelines then in effect. Two months later, however, the Commission proposed a technical correction to the Historic District Design Guidelines, but published [...

Spot Zoning Allegation Deemed Academic in Light of Subsequent Town-Wide Rezoning

Posted on October 18, 2008
The allegation that the adoption of a zoning amendment in 2005 constituted spot zoning was deemed academic in light of the fact that in 2007 a town-wide revision to the zoning was adopted , rezoning the property at issue. Furthermore, the granting of area variances by the zoning board was not improper...

Neighbor Neglected to Timely Intervene in Challenge to Variance

Posted on October 18, 2008
Following the granting of an area variance to enable certain home renovations which excepted a requested pitched roof over the sunroom, the property owner timely commenced an action challenging the determination as it related to denying the request for the pitched roof...

Sixth Circuit Court of Appeals Finds Church Filed RLUIPA Suit Too Soon

Posted on October 17, 2008
The Sixth Circuit Court of Appeals affirmed the District Court?s decision (see the posting on this blog) that the Church failed to exhaust its administrative remedies and obtain a final judgment before filing a lawsuit under the Religious Land Use and Institutionalized Persons Act...

Burial of Husband in the Backyard is Not an Accessory Use of Residential Property

Posted on October 16, 2008
Although I usually don?t post trial court opinions on this blog, this case, forwarded by Dwight Merriam, Esq. of Robinson & Cole was just too good to miss. It seems as though Elise Piquet and her late-husband made a pact that they would be buried next to each other when they died...

Court Properly Granted Injunction Finding that an ATV Park is Not a Permitted Use in a Residential Zone

Posted on October 15, 2008
Defendants were using their property in a residential zoning district as an ATV park, charging $30 per day for adult riders and $15 per days for riders under the age of eighteen. Almost four months following the issuance of a cease and desist order by the zoning enforcement officer, because the defendants were in violation [...

11th Circuit Court of Appeals Says Federal Fair Housing Act May Be Violated Where Ordinance Prohibits Turnover in Multi-Family Areas

Posted on October 14, 2008
Following complaints from neighbors regarding excessive noise, the operator of six halfway houses for recovering substance abusers was cited for violations of the City zoning ordinance. The owner then brought suit under the Fair Housing Act (FHA), challenging the city’s zoning ordinance that limits occupancy turnover...

City Not Liable for Providing Mistaken Information about Land Use Regulations

Posted on October 13, 2008
The Oregon Supreme Court upheld a case discussed last year on this blog, holding that a municipality is not liable for economic loss when providing wrong zoning information. As reported on the Northwest Business Litigation Blog, The Oregon Supreme Court concluded that a used car dealer can’t recover damages resulting from the City of Salem’s erroneous [...

Use Variance for Photography Studio in Residential District Upheld

Posted on October 12, 2008
Neighbors appealed a decision of New York City Board of Standards and Appeals to grant a use variance to an applicant who purchased a lot zoned for residential use, who then demolished the home on the property and applied for the variance to construct a photography studio in its place...

A Legal Guide to Urban and Sustainable Development for Planners, Developers and Architects

Posted on October 11, 2008
A famous often quoted line by Justice Brennan, ?If a policeman must know the Constitution, then why not a planner?? is a perfect lead-in to a wonderful new book by Daniel K. Sloane, Doris Goldstein and W. Andrew Gowder, Jr. (with contributions by other notable lawyers and planners) on urban and sustainable development...

Added RLUIPA Counterclaim Not Enough to Support Removal to Federal Court

Posted on October 10, 2008
Professor Howard Friedman of the Religion Clause Blog reports on an interesting case with a long history out of the Town of Ramapo, NY. He explains that ?a New York federal district court rejected an attempt by defendant alleging RLUIPA and Fair Housing Act counterclaims to remove a case from New York state courts to [...

Virginia Supreme Court Finds Zoning Board Has No Authority to Initiate Litigation on Its Own

Posted on October 09, 2008
In 2004, the Fairfax County Executive sent a letter to the board of zoning appeals (BZA) stating that the Board of Supervisors ?will no longer pay for private legal counsel to represent the BZA and will not permit the County Attorney or his staff to represent the BZA? except in limited situations (where the BZA [...

11th Circuit Upholds Zoning and Licensing Ordinances for Adult Uses as well as Ordinance Regulating Bikini Bar

Posted on October 08, 2008
In an unpublished opinion, the Eleventh Circuit Court of Appeals upheld several ordinances enacted in Hillsborough County designed to regulate adult entertainment facilities. The Appellants did not challenge the District Court?s conclusion that the ordinances at issue did not constitute a total ban on speech, but were merely time, place and manner regulations, nor did [...

NY Trial Court Finds Town Board Failed to Follow Protest Petition Requirements

Posted on October 07, 2008
The Town of Lyme, NY enacted a zoning ordinance following a moratorium that is believed would have effectively restricted wind power from the municipality. The measure passed the Town Board by a vote of 3-2, but the petitioners had filed a protest petition pursuant to N...

Mining Operator Not Entitled to Nonconforming Use Status Absent Proof of Activities on the Land Prior to Adoption of Zoning Amendment

Posted on October 06, 2008
The owner of approximately 280 acres of property within the Town sought a declaration that all of its property located outside of the Town?s ?AG-Special Aggregate District? is permitted as a nonconforming use, although it only operates a hard rock quarry on approximately one half of its land...

No Standing to Challenge Variance Where Property is Half-Mile Away

Posted on October 06, 2008
A New York appellate court held that a property owner lacked standing to challenge the granting of a use variance enabling the applicant to use a portion of his property located in an Agricultural-Residential District as a pit area for a speedway he owned...

Workforce Housing Law Enacted in New York for Long Island Counties

Posted on October 05, 2008
In August, Governor David Paterson signed into law The Long Island Workforce Housing Program. Introduced by Majority Leader Dean Skelos, the new law which will take effect on January 1, 2009, provides that when a developer makes an application to a local government to build five or more residential units in Nassau or Suffolk counties, [...

Green Residential Building Grant Program Signed by Governor Paterson

Posted on October 05, 2008
At the end of September, New York?s Governor signed into law the Green Residential Building Grant Program, amending the Public Authorities Law to authorize the New York State Energy Research Development Authority (NYSERDA) to: (1) develop and establish standards and criteria for a new green residential building grant program, and consult existing standards and criteria, [...

Hear Leading Judges, Academics and Practitioners Discuss Religion and Land Use

Posted on October 05, 2008
This past week, the students at the Albany Government Law Review hosted a fantastic 3-day symposium focusing on religion and land use. The program brought together leading judges, academics and practitioners, many of whom focused on the Religious Land Use and Institutionalized Persons Act...

Denial of Conditional Use Permit Renewal for Airport is not Preempted by nor Contrary to State Aeronautics Act

Posted on October 04, 2008
Sunset Sky Airport has operated at some level since 1934. It was permitted by a 1962 zoning ordinance and became a conditional use in 1968. The current owner acquired the airport and obtained a two-year conditional use permit (CUP) in 1971, when it was primarily used for agricultural flights...

Plaintiff Waived Strict Compliance with Local Public Hearing Requirements by Showing Up at Hearing

Posted on October 03, 2008
Following a moratoria so that the Town could conduct a land use study, the Town Board enacted a local law that rezoned the Plaintiff?s property from a Business District to a Limited Business District. The Plaintiff challenged the rezoning, alleging that the Town failed to provide proper notice of the public hearing...

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