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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

USDOJ Reaches Consent Agreement with NJ Municipality Paving the Way for Chabad House

Posted on October 28, 2020
This information appears in the October 2020 Religious Freedom in Focus newsletter from USDOJ. On September 15, the Justice Department announced that it has reached an agreement with the Borough of Woodcliff Lake, New Jersey, to resolve allegations that the borough violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying zoning approval for an […]

DOJ Releases Report on 20th Anniversary of RLUIPA

Posted on October 27, 2020
Last month, the USDOJ released a report to mark the 20th anniversary of the Religious Land Use and Institutionalized Persons Act. The report is a treasure trove of information detailing the history of the Act, and summarizing key cases over the last 20 years...

RLUIPA Documentary Available on Amazon Prime

Posted on October 26, 2020
Anne McGregor’s documentary, America’s Holy War, about RLUIPA and land use challenges in Rockland County, NY is now available for streaming on Amazon Prime here – https://www.amazon.com/Americas-Holy-War-Annie-MacGregor/dp/B08LFWP33M/ref=sr_1_2?crid=2M7T1IXI9YBX2&dchild=1&keywords=americas+holy+war+documentary&qid=1603798672&sprefix=americas+holy+war+doc%2Caps%2C232&sr=8-2

First Circuit Rejects Signs For Jesus? RLUIPA and Constitutional Appeal

Posted on October 13, 2020
This summary is reposted with permission from the RLUIPA Defense Blog. The U.S. Court of Appeals for the First Circuit recently found in favor of the Town of Pembroke, New Hampshire regarding the Town?s denial of an application for an electronic sign permit for religious messages...

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WV Supreme Court Affirms Trial Court?s Decision in Favor of Landowner on Substantive Due Process Challenge to Municipal Zoning Ordinance

Posted on October 09, 2020
This post was authored by Joseph Schaeffer, Esq. For the first time in nearly 40 years, the Supreme Court of Appeals of West Virginia has affirmed a trial court?s decision in favor of the landowner on a substantive due process challenge to a municipal zoning ordinance...

APA Webinar: Sky?s the Limit: Drone Regulatory Implications

Posted on October 09, 2020
Sky’s the Limit: Drone Regulatory Implications Thursday, October 22, 2020 12:00 p.m. – 1:30 p.m. CT CM I 1.50 I LawCLE 1.50 through Illinois State Bar Aerial drones (sometimes described as ?UAS? or ?UAV?), have a host of planning applications across urban, regional, rural, and agricultural geographies...

NY Appellate Court Holds Airbnb Permitted Use Subject to Special Use Permit

Posted on October 03, 2020
This post was authored by Tyler Doan of Vermont Law School Property owners wished to use their property as an Airbnb. The Town of Hamburg Zoning Board of Appeals and the Town of Hamburg Code Enforcement Officials interpreted the Code of the Town of Hamburg as not to allow a tourist home to be a […]

NY Appellate Court Upholds Denial of Area Variance Based on New Evidence Considered by the ZBA

Posted on October 02, 2020
This post was authored by Tyler Doan of Vermont Law School Petitioners, owners of a gravel mine, appealed a denial of an area variance by the Zoning Board of Appeals. The Court said that although a previous variance and previously amended variance for the same issue of access roads to the mine through a local […]

OR Appeals Court Holds Regulations Cited by City Could Not Serve as a Basis to Deny Property Owner?s Request to Construct an Accessory Dwelling Unit

Posted on September 30, 2020
This post was authored by Matthew Loescher, Esq. Kamps-Hughes owned real property in the Fairmount neighborhood of Eugene, zoned Low Density Residential (R-1), and was accessible only via an alleyway. This case related to Kamps-Hughes? efforts to obtain verification from the city as to whether he could build a detached accessory dwelling unit (?ADU?) on his […]

Fed. Dist. Court in NY Holds ?Porcelain Gardens? Were Protected by the First Amendment

Posted on September 21, 2020
This post was authored by Matthew Loescher, Esq. Plaintiff Frederick ?Hank? Robar installed toilets repurposed as planters containing floral arrangements and attached to decorative posts, installations he referred to as ?porcelain gardens,? on seven properties he owned in Potsdam...

OH Appeals Court Finds Res Judicata Precluded Claim for Writ of Mandamus Regarding Construction of Garage

Posted on September 20, 2020
This post was authored by Matthew Loescher, Esq. Mr. Schell and the Village of Lakemore had been engaged in a long-standing dispute of over seven years regarding the construction of a garage on Mr. Schell’s property. Lakemore filed a separate complaint against Mr...

NY Appellate Court Affirms ZBA?s Denial of Letter of Correction to Amend a Certificate of Occupancy

Posted on September 19, 2020
This post was authored by Matthew Loescher, Esq. In this case, the petitioner sought to set aside a determination of the Zoning Board of Appeals of the Town of Brookhaven. The ZBA’s determination confirmed a determination of the Town’s Chief Building Inspector, which denied the petitioner’s application for a letter of correction to amend a […]

Florida Court Finds RLUIPA Protects Transition Home for Registered Sex Offenders

Posted on September 18, 2020
This contribution is reposted with permission from the RLUIPA Defense Blog If you are a municipality defending against a RLUIPA lawsuit, it is generally not a good sign when a court?s memorandum of decision begins with a string of biblical quotes.� Wakulla County Florida experienced this earlier this summer...

NY Appellate Court Upholds ?Nail and Mail? Service for Building and Zoning Violations

Posted on September 17, 2020
This post was authored by Amy Lavine, Esq. Two recent cases from the New York Appellate Division, Second Department addressed the service of process requirements for building code and zoning violations. The property owner in these cases had been issued default violations after he failed to appear for hearings before the New York City Environmental […]

NY Appellate Court Affirms Denial of Site Plan Approval for Gas Station Canopy

Posted on September 16, 2020
This post was authored by Amy Lavine, Esq. The NY Appellate Division, Second Department recently upheld the denial of site plan approval for the addition of a canopy to a gas station located in Montauk. The court first noted that the standard of review was not substantial evidence, because “the Planning Board’s determination was made […]

Fed. Dist. of MI Holds Owner Did Not Have a Constitutionally Protected Property Interest with a Special Use Permit for a Medical Marijuana Facility

Posted on September 09, 2020
This post was authored by Matthew Loescher, Esq. Plaintiff Exclusive Brands LLC sought a special use permit to operate a medical marijuana facility in Garden City, Michigan. Plaintiff Exclusive Brands LLC brought this action for injunctive, declaratory, compensatory, and punitive relief pursuant to 42 U...

Sixth Circuit Court of Appeals Holds Variance Scheme Gave Unbridled Discretion to Board of Appeals

Posted on September 04, 2020
This post was authored by Matthew Loescher, Esq. International Outdoor, Inc., an outdoor advertising company, desired to erect billboards in the City of Troy, Michigan. Following the City of Troy?s denial of International Outdoor’s application for a permit, and then for a variance from the limitations imposed by the City’s sign ordinance, International Outdoor brought […]

NY Appellate Court Annuls Finding of Unnecessary Hardship for Use Variance

Posted on September 01, 2020
This post was authored by Matthew Loescher, Esq. Respondents Brenda M. Bunce, Terry A. Nunez, Dennis R. Ormond, and Dawn Ormond Constantine, owners of an approximately 17-acre parcel of land, entered into an agreement to sell a two-acre section of that parcel to respondent The Broadway Group, LLC...

Fed. Dist. Court of CT Grants Town Summary Judgement in ?Class of One? Claim

Posted on August 31, 2020
This post was authored by Matthew Loescher, Esq. Plaintiff Ronald S. Prisley filed this action against the Town of Deep River Planning and Zoning Commission pursuant to 42 U.S.C. �1983 alleging an equal protection ?class of one? claim based upon the Commission?s denial of Prisley?s 2014 re-subdivision application for a property located in Deep River, […]

GA Appeals Court Holds City?s Sovereign Immunity was Waived as to Developer?s Claim for Declaratory Judgment with Regard to the Validity of City?s Growth Management Code

Posted on August 30, 2020
This post was authored by Matthew Loescher, Esq. This appeal arose from the denial of Ernest Communities? application for a land development permit to build town homes on its property in Rincon, Georgia. Ernest sued the city of Rincon, the city council, the mayor, the council members in their individual and official capacities, and the […]

9th Cir. Court of Appeals Holds Municipal Decision to Revoke CUP that was Based on Concerns About Nuisance Caused by Motel Did Not Implicate Takings Clause

Posted on August 29, 2020
This post was authored by Matthew Loescher, Esq. Plaintiff-Appellant Amitkumar Shah was the owner and director of Akshar Global Investments Corp. (?AGI?), which owned and operated the 108 Motel Inn in Los Angeles, California. The Second Amended Complaint (?SAC?) included allegations that in 2018, the City of Los Angeles formally revoked the conditional use permit […]

9th Cir. Court of Appeals Holds Neighborhood Association was Not Entitled to Intervene as of Right in Action Seeking Review of Area Planning Commission?s Denial of Application for a Conditional Use Permit

Posted on August 27, 2020
This post was authored by Matthew Loescher, Esq. In this case, Reynier Village Neighborhood Association appealled the district court’s order denying its motion for intervention as of right and for permissive intervention in in action seeking review of area planning commission’s denial of application for a conditional use permit to build a wireless communication tower...

9th Cir. Court of Appeals Holds Limitation on Fees State and Local Governments could Charge Providers to Deploy Small Cell Wireless Facilities was in Accordance with the Telecommunications Act

Posted on August 26, 2020
This post was authored by Matthew Loescher, Esq. This case arose from three FCC orders, issued in 2018, that dealt with myriad issues related to the application of a twentieth century statute to twenty-first century technology. The two orders were known as the Small Cell Order and the Moratoria Order...

Wisconsin Appeals Court Upholds Board?s Decision Granting Variances Finding that the Decision was Based on Substantial Evidence

Posted on April 01, 2011
The circuit court affirmed the Zoning Board of Appeals decision to grant area variances in order for property owners to build a restaurant on property located on a lake.� The Board granted the variances but property owner had already remodeled the property...

PA Commonwealth Court Finds No Vested Right to Permit for Wind Turbine Project

Posted on March 31, 2011
The Zoning Hearing Board revoked a zoning permit after it had been issued to a developer who wished to create a wind turbine project.� Specifically, the project was to entail 20-28 wind turbines spread out over an 11 acre area.� It was noted early in the application process, however, that the turbines would exceed the [...

Fed. Dist. Court Dismisses Due Process and First Amendment Claims From Alleged Prohibition on Serving on Township Board of Trustees Resulting from Support of Recall Effort Over Rezoning

Posted on March 30, 2011
Plaintiffs alleged that defendant Township violated their First and Fourteenth Amendment rights by prohibiting them from serving on the Township Board of Trustees based on their previous support of a recall effort resulting from rezoning efforts in the Township...

Louisiana Supreme Court Upholds Council?s Reversal of Approvals for Liquor Store

Posted on March 29, 2011
Plaintiff sought to change the zoning on a parcel of property from residence/agriculture district to community business district so he could build a liquor store. The proposed liquor store was to have a drive-thru window and would sell an assortment of alcoholic beverages...

Montana Supreme Court Upholds Commission Denial of Subdivision Approval

Posted on March 28, 2011
MM&I applied for plat approval for a subdivision containing 135 single family lots with one lot for up to 16 condominiums. After much public opposition, the Commission denied the application. MM&I appealed but the Commission was successful in obtaining judgment in their favor since its decision to deny the application was not random or unreasonable...

NY Appellate Court Upholds Denial of Area Variance for Off-Street Parking

Posted on March 27, 2011
Following denial of an application for an off-street parking area variance, the petitioner appealed.� The appellate court noted that the record demonstrated that the Board of Appeals conducted the proper balancing test when determining whether or not to grant the parking area variance...

NY Appellate Court Finds Planning Board?s Denial of Application Lacked Rational Basis as Lots Were Not Properly Part of a Cluster Subdivision

Posted on March 26, 2011
Plaintiff brought an Article 78 proceeding after the Planning Board denied his application for the removal of a restriction on a plat map.� Plaintiff?s lots were designated ?Open Area A? and ?Open Area B? which meant the lots were not approved for building lots...

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