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.
Post Frequency: 2.5/day Last Entry: November 20, 2009 at 01:41:36 Recent Entries: 810
By atricia Salkin
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Parking, Zoning, Easement Disagreement Between Adjacent Houses of Worship
Posted on November 20, 2009Best described as a property dispute between two houses of worship, with the plaintiff congregation alleging claims of trespass by the defendant congregation and the defendant congregation alleging the plaintiff was violating applicable zoning. The appeals court concluded that the trial court incorrectly applied a former provision in the village code that was in effect [...
RLUIPA Case Not Ripe as Church Failed to Pursue Final Governmental Determination
Posted on November 19, 2009Shenkel United Methodist Church desired to participate in a program to provide monthly shelter to homeless individuals during the winter months. This decision was made at the request of a group called Ministries for Main Street, in response to inadequacies in the state-run shelter program...
7th Circuit Holds Locality Seeking to Create a Commercial Area Can Exclude Non-Commercial Uses Without Violating RLUIPA
Posted on November 18, 2009The River of Life Kingdom Ministries sought to relocate its 67-member congregation from a crowded warehouse that it shared with two other churches to a ?fixer-upper? blighted property it purchased in the Village. The Church wanted to do more for the community including promoting literacy, empowering communities, developing leaders, transforming economic conditions, and improving the [...
NY Court of Appeals Opens Door to Standing for Environmental Review Challenges
Posted on November 17, 2009In a victory for those who have long believed that the New York Court of Appeals needed to open the courthouse door wider for advocates seeking standing in environmental disputes, a decision last week by the Court delivered. The court began its decision, ?We hold that a person who can prove that he or she [...
Adult Oriented Business Moratorium and Subsequent Regulations Upheld
Posted on November 16, 2009In 2005, the County began the process of revising its comprehensive plan and among the issues examined were adult-oriented businesses (AOBs). In March 2005, appellant entered into a contract to purchase the property and applied for a special use exception from the County to operate the AOB...
DOJ Argues that City?s Old Town District Cannot Exclude Religious Organizations
Posted on November 15, 2009The following summary appears in the Religious Freedom in Focus Newsletter (Fall 2009, vol. 40) prepared by the U.S. Dept. of Justice, Civil Rights Division: The United States, in a brief filed August 7, 2009 in the United States Court of Appeals for the Ninth Circuit, argued that the City of Yuma, Arizona violated the [...
Planning director lacks authority to modify zoning map to conform to legal description
Posted on November 14, 2009About 20 acres of the company?s 63-acre tract were zoned for general business use in 1974 when the zoning map was based on 1955 aerial photos. The balance was zoned for residential-agricultural use. In 1988, the county adopted a new map, superimposing property and zoning lines on photos...
Due Process Required When Imposing Civil Penalties for Alleged Violations
Posted on November 13, 2009Post, was the owner of numerous rental properties in Tacoma, twenty-four of which were found to be in violation of city ordinances because they were substandard or in some cases derelict. The City imposed penalties and gave Post thirty days to respond to the allegations pursuant to the building code...
Court Upholds County Permit for Equestrian Barn
Posted on November 12, 2009Adjacent property owners challenged the granting of a permit to construct a barn/equestrian center on their neighbor?s property. The permit was issued on after prior applications failed since as initially proposed the barn would have been a primary use of the lot and because a variance was needed and denied...
New Article on Climate Change and Local Planning and Regulations
Posted on November 12, 2009A series of articles are being published from a number of different law reviews representing research conducted at the Government Law Center earlier this year. In Sustainability and Land Use Planning: Greening State and Local Land Use Plans and Regulations to Address Climate Change Challenges and Preserve Resources for Future Generations, the point is made that [...
11th Circuit Court of Appeals Finds Insufficient Evidence to Support Discriminatory Enforcement Claims
Posted on November 11, 2009Bonasera, a Hispanic woman living in a predominantly white neighborhood, installed a second kitchen in her home and in 1999 began renting rooms to boarders. In 2006, following the complaints of a neighbor, the City cited her for violating City ordinances restricting the use of her property to ?one family residences and related uses...
Substantial Evidence Supported Variance Denial for Telecommunication Tower
Posted on November 10, 2009Industrial Tower and Wireless, LLC (ITW) alleged that the East Kingston Zoning Board of Adjustment (ZBA) improperly denied ITW?s application for a variance to construct a wireless telecommunications tower on property zoned only for residential use because the Town?s grounds for denial were not supported by substantial evidence...
Kentucky Supreme Court strikes down retroactive application of sex offender residency restrictions
Posted on November 09, 2009The Supreme Court of Kentucky held that the retroactive application of sex offender residency restrictions (a 2006 law that limited sex offenders from residing within 1000 feet of a school, a daycare center or a playground) violates the ex post facto clauses in the federal and state constitutions...
Vested Rights Do Not Extend To Filing of Site Plan Application, Only to Building Permit Application
Posted on November 08, 2009Abbey Road Group, LLC sought to construct a 575-unit multifamily condominium project on over 36 acres (the “Property”) in the city. On September 13, 2005, Abbey Road submitted a site plan application. A site plan application is “part of a preliminary stage in the development process relative to a building permit application phase...
Proposed Initiative to Subject all Land Use Enactments to Popular Vote Invalidated
Posted on November 07, 2009Carmony submitted an Application of Initiative Petition to the Clerk of the Matanuska-Susitna Borough. The proposal would have added a new section to the Borough?s code to subject all land use enactments of the borough to a popular vote. Carmony sought review after the clerk and superior court rejected the petition because the proposed ordinance [...
Zoning Ordinance That Allowed a Firing Range Near a Residential Subdivision Does Not Subject Town to Liability for Alleged Due Process Violation
Posted on November 06, 2009Plaintiffs live in a development one and one half miles north of a sportsman?s club and they had previously complained of stray bullets reaching their neighborhood and striking their homes in 2006. The Club subsequently made changes to the firing range and reopened in late 2008...
Local Zoning for a Broadcast Antenna Preempted for AM Radio Station
Posted on November 06, 2009A reader of Law of the Land brings us of an ?oldie but goodie? case?as there is not much law in this area, I agreed to post a 2002 landmark case as a reminder for those who practice in the area. The local zoning for the City of Lebanon, NH, provided for a maximum height of [...
Citizens Claiming an Adverse Impact May Challenge Annexation Where Their Land is Not Part of the Annexed Property
Posted on November 05, 2009Lifestyle initiated a voluntary annexation by requesting the City of Reno annex 7,000 acres of land in Cold Springs Valley. Residents of Cold Springs, an area that borders the land in question, opposed the annexation. The City Council ignored the opposition and annexed the land...
More Searching Scrutiny Is Required Where Adult Uses are not Allowed As of Right, but Rather are Subject to Special Use Permit Review
Posted on November 04, 2009The Village?s Board of Trustees denied Chicago Joe?s request for a special use permit to locate in the office/industrial district of the Village since the proposed use violated the zoning code which prohibited adult use facilities form serving alcohol on site...
Variance Denial for Telecommunications Tower Upheld as No Significant Gap In Service Existed and Ordinance was not Exclusionary
Posted on November 03, 2009In granting summary judgment in favor of the Township, the Eastern District Court of Pennsylvania held that the denial of a variance to construct a personal wireless facility did not result in a violation of the prohibition of services section in The Telecommunications Act § 332(c)(7)(B)(i)(II)...
Need Continuing Education Credits? Last Chance to Sign-Up for On-Line Land Use Law Course Through Rutgers
Posted on November 03, 2009I mentioned in an earlier post the various offerings from the Bloustein On Line Continuing Education Courses at Rutgers University. The Current Trends in Land Use Law course begins on Thursday, November 4th. Rutgers is making available a special registration fee for a limited number of people who register ($150 instead of $295) ...
Fifth Circuit Court of Appeals Finds Houston?s Sign Code Constitutional
Posted on November 02, 2009RTM, an outdoor advertising company which owned fifty-nine billboards in the City of Houston was sued in state court by the City for alleged violations of the sign code and for public nuisance. In response, RTM brought suit in federal court alleging that the code violated the First Amendment because of its alleged disparate treatment [...
Denial of Special Exception for Theoretical Subdivision in Tree and Slope Protection Overlay District is Supported by Substantial Evidence
Posted on November 01, 2009The developer sought a special exception for a theoretical lot subdivision to build 13 houses on a single lot in the Chain Bridge Road/University Terrace Tree and Slope Protection Overlay District. Four houses would have street frontage and could be built by right...
Appeals Court Agrees that Owner is Estopped from Seeking Release of Open Space Covenant Where Benefits Were Already Accepted
Posted on October 31, 2009Vo-Land brought an action to lift a covenant that was placed on 96 acres of land in the Village of Bartlett and to disconnect the land from the Village. Vo-Land owns 107-acres of land in the Village and was required to keep 96 of those acres open. The original 107 acres were incorporated to the [...
In Calculating Maximum Density Zoning Regulation Allowed Commission to Consider Parent Parcel in Existence at Time Regulations Were Adopted
Posted on October 30, 2009The applicants applied to the commission for permission to subdivide their four acre parcel of property located in Avon into two lots, each lot comprised of two acres. The property was zoned as a residential use and was originally part of a larger thirty-four acre parcel, which had previously been subdivided...
Denial of Permit for Antenna on Extension to Smokestack Already Housing Two Antennas Violates Telecommunications Act
Posted on October 29, 2009In 2000, the town approved wireless communications antennas on an existing smokestack of an old mill building. The smokestack is about 121 feet high and the antennas were placed at 98 feet and 121 feet. The zoning board determined that a 100-foot height limit for wireless facilities did not apply to a pre-existing structure...
Although Lots Exempted from Subdivision Review, Zoning Regulations Were Still Applicable
Posted on October 28, 2009Tonter owned three tracts of land in the city. Tracts 1 and 2 were zoned A-2, Agricultural District. Tract 3 was zoned A-1, Agricultural. At the time Tonter purchased the tracts, the A-2 and A-1 zones permitted residential structures. However, in August 2007, the county passed an ordinance (the “August Amendment”), prohibiting all residential uses [...
New NY Law Requires Consistency Among Local Disaster Preparedness Plans
Posted on October 28, 2009Introduced as A. 5025 (Brodsky), Chapter 415 of the NY Laws of 2009 adds §23-c to the Executive Law and requires that local disaster preparedness plans of a county, city, town, or village not conflict with those of others; disputes with a county are to be resolved by the county; disputes crossing county lines are [...
New Publication Available on Ethics Issues in Land Use
Posted on October 27, 2009Each year an article is published reviewing the reported decisions involving allegations of unethical conduct in the land use area from the previous year. A number of themes emerged from the most recent round of litigation, with the most surprising discovery, for a second year in a row, being that the number of reported cases involving allegations of [...
Nonconforming Mobile Home May Not Be Replaced With New Mobile Home
Posted on October 27, 2009The city brought a legal action against David and Marian Cox after they replaced a mobile home on their property that was originally placed on the land in 1990 so that Marian Cox?s parents could reside there. They resided on the property until their deaths in 1994 and 1995, after which David Cox took ownership [...
5th Circuit Court of Appeals Opens Door to Climate Change Litigation
Posted on October 26, 2009In reversing the District Court, the 5th Circuit Court of Appeals unanimously found that Gulf Coast residents had standing to sue energy and chemical companies under Mississippi state law for having emitted greenhouse gases that allegedly contributed to global warming, in turn causing sea levels to rise and adding to the ferocity of Hurricane Katrina [...
Lesson: Research Chain of Title and Zoning Regulations Prior to Purchasing Property at Auction
Posted on October 25, 2009The Connecticut Superior Court, following a trial, rejected a taking claim by a developer who purchased a non-conforming, unbuildable lot at a tax sale and was subsequently denied two minor variances to develop the lot. The court noted that all bidders had been advised in the publication that it was not guaranteed that the property [...
Town Board?s Failure to Follow Annexation Procedure Does Not Result in Default Approval nor an Annexation by Operation of Law
Posted on October 24, 2009The owners of a 45-acre undeveloped parcel in the Town of Parma, located adjacent to the Village of Hilton submitted a petition to the legislative bodies of both municipalities requesting approval of annexation of their property by the Village. The owners intended to construct a 117-unit senior citizen housing development on the land...
Property Owner Challenges Zoning Ordinance that Prevents Use of Land for ATV and Motorcycle Track and Club
Posted on October 23, 2009Following a notice of violation by the zoning enforcement officer, Hawk, owner of a 21.27 acre parcel of land that he cleared for use as a motorcycle and ATV race track (and he created a Weekend Warrior Club to use the property for this purpose), appealed the notice of violation and applied for the necessary [...
Court Review of a City Council Land Use Decision Limited to the Record Provided by the Council
Posted on October 23, 2009Pacific West acquired a planned unit development (PUD) after Phase 1 of the project was completed by another developer. The City Council voted to deny Pacific West’s application for Phase 2 because in the Council’s opinion the proposed development plan was significantly different than the originally approved plan...
9th Circuit Finds that Property Owners Properly Preserved Their Federal Takings Claim in State Court
Posted on October 22, 2009The Los Altos El Granada Investors, the owner of a mobile home park located in the City of Capitola, petitioned the City for license to increase rents on its mobile home pads. A 1970s-era rent control ordinance provided that rents could be increased in only two situations...
Adult Entertainment Use For 12 Days Does Not Establish a Legal Nonconforming Use
Posted on October 21, 2009The Wisconsin Court of Appeals held that the adult entertainment provided at a tavern for twelve days before the effective date of an ordinance amendment prohibiting that use in that zoning district did not constitute a nonconforming use. In early 2005, a tavern business called Kitt’s Korner was operating in the Town of Cross Plains, Dane [...
Resource on Drafting Local Laws for Appointment of Alternate Members of Planning and Zoning Boards
Posted on October 21, 2009It is not uncommon for members of planning and zoning boards to have conflicts of interest with repsect to applicants and applications before the board. When these members disclose and recuse themselves from further involvement in pending matters, it can lead to problems including a lack of quorum for the conduct of business and to [...
Denial of Cell Tower Permit Did Not Violate the Telecommunications Act?s ?In Writing? Requirement
Posted on October 20, 2009USCOC, a firm that develops sites for cell phone towers claimed that the City of Ferguson violated the Telecommunications Act’s “in writing” requirement by failing to issue its written decision within thirty days of voting to deny its variance application to enable it to construct a 105-foot wireless communications tower on a parking lot...
State Appeals Court Finds No RLUIPA Violation Where Zoning Board Prohibits Halfway House in Single Family Residential District
Posted on October 19, 2009The Brotherhood of St. Joseph, a religious order, purchased property in an R-1 residential district and began operating a temporary group housing program to facilitate the re-entry into society of men who had recently been incarcerated based on their convictions of nonviolent alcohol or drug related crimes...
Deceitful Conduct by an Applicant May be Considered by Zoning Board of Appeals When Weighing a Variance Application
Posted on October 18, 2009A New York appellate court was asked to consider the novel question of whether ongoing and deceitful representation by an applicant before the planning and zoning boards could constitute the basis for denial of requested area variances where the state statute sets forth the factors that must be balanced in weighing the decision of whether [...
Plaintiff Makes Case for Selective Enforcement and Violation of Equal Protection Claim to Proceed
Posted on October 17, 2009The Plaintiff, Sonne, owns a three-story building in the Village zoned for commercial, and she planned to rent the third floor to a commercial tenant. The building inspector refused to permit Sonne to use the third floor on the ground that it only has one usable exit and that it therefore violates the State Uniform [...
7th Circuit Questions the Weight of Evidence of Secondary Effects Used to Support City?s Adult Entertainment Ordinance
Posted on October 16, 2009The City of Indianapolis amended its definition of “adult entertainment business” to include any outlet that devotes 25% (down from the previous 50%) of its space or inventory or revenue devoted to or earned from adult books, magazines, films, and devices...
Public Notice Must be Sufficient to Apprise the Public of the Locations of the Proposed Parking Requested in Special Use Permit
Posted on October 15, 2009To accommodate significant growth in its congregation, a church filed an application for concurrent requests for special exception approval of a planned expansion and off-site parking in the Town of Woodbury (CT). Following notice and hearings, the commission approved the application...
FCC Chairman Indicates Forthcoming Action on Cell Tower Zoning
Posted on October 14, 2009According to the Varnum law firm?s website, in a speech to the cell phone industry last week, the Chairman said that: On the issue of tower siting, we have heard your call. This issue is ripe for action. I have consulted with my fellow Commissioners, and in the near future we are going to move forward [...
County May Enforce Prohibition on Lighted Artificial Palm Trees at Casino Based on its Growth Policy Which Promotes a Western Historic Theme
Posted on October 14, 2009The county planning department denied casino owner?s request for a conditional use permit to enlarge a casino and to erect certain signs and 50 lighted palm trees. The owner described the trees as a ?unique advertising motif? associated with his other Montana casinos...
Iowa Creates Small Wind Innovation Zones to Encourage Residential Wind Turbines
Posted on October 13, 2009To target the installation of residential wind turbines in the State, a new Iowa law allows municipalities to establish small wind energy innovation zones to optimize local, regional, and state benefits from wind energy and to facilitate and expedite interconnection of small wind energy systems with electric utilities throughout the state...
Atlantic Yards Eminent Domain Case Heads to New York High Court Tomorrow
Posted on October 13, 2009The Following Summary is from the Public Information Office of the New York Court of Appeals: To be argued Wednesday, October 14, 2009 No. 178 Matter of Goldstein v New York State Urban Development Corporation This proceeding challenges the use of eminent domain by the Empire State Development Corporation (ESDC) to take property on the site of the [...
10th Circuit Rules Federal Law Does Not Preempt State Subdivision Law
Posted on October 12, 2009The 10th U.S. Circuit Court of Appeals ruled the Federal Land Policy Management Act (FLPMA) did not bar Pitkin County, Colo., from exercising its regulatory authority relating to land subdivisions over a parcel created as part of a land swap between the federal government and a private party...
California?s Compassionate Use Act Does Not Require Municipalities to Allow Medical Marijuana Dispensaries
Posted on October 01, 2009A recent case involved the operation of a medical marijuana dispensary in a city where marijuana dispensaries were not an enumerated use under the city?s zoning laws. The city promptly informed the owner of the dispensary that the proposed use was not permitted at any location in the city, denied his application for a business [...
Seventh Circuit Says City Needs More Evidence to Support Secondary Effects Study to Justify Pornographic Litter Rationale as Basis for Regulation
Posted on September 30, 2009New Albany DVD operates an adult store where customers buy books, magazines, or videos, which they read or watch at home, they do not provide live or recorded entertainment on site. They purchased a piece of property zoned for this use and made renovations to comply with applicable regulations...
Prohibiting the Keeping of More than Three Dogs without a Permit is Not Unconstitutional
Posted on September 29, 2009Luper owns a one-acre parcel of land in a rural residential district where she operates a Shetland sheepdog kennel as a hobby with approximately 18 dogs over the age of four months. The City code requires property owners to obtain a use permit before operating a dog kennel in a rural residential zone...
Right to Nonconforming Use Runs with the Land and Not with Temporary Leasehold Interest
Posted on September 28, 2009Lamar acquired leaseholds on off-premises billboards which were or became nonconforming in 2000 with the adoption of the City?s zoning code. In 2003, the city amended the zoning code to allow for replacement of nonconforming signs subject to certain requirements, and to repeal the 15-year sunset provision for nonconforming outdoor advertising signs...
Decision to Grant Variance after Construction Largely Completed Upheld
Posted on September 27, 2009Pursuant to a building permit, the owner of the subject property had largely completed an addition to her house when the permit was revoked. She then applied for a permit for an expansion of her nonconforming use and a 28-foot side yard variance in accordance with the work already done...
Zoning Board Has Jurisdiction to Review Determination of Building Inspector
Posted on September 26, 2009After receiving a building permit, the petitioners began construction of a house on their property, and subsequently they received a certificate of occupancy from the Town building official. Two years later, the petitioners were issued an appearance ticket alleging that the house violated two provisions of the Town Code ? that it exceeded the allowable [...
Applicant Entitled to Project Review Under Conditional Use Permit and Site Plan Regulations in Effect at Time of Application
Posted on September 25, 2009In 2002, Sisters and Brothers Investment Group (”SBI”) applied for a conditional use permit with the Colchester Development Review Board to operate a convenience store with gasoline pumps on its property. The board denied the application, and the Environmental Court affirmed...
Affordable Housing Continues to Constitute an Inherently Beneficial Use for Purposes of Obtaining a Variance Even Where Municipal Fair Share Obligation Has Been Met
Posted on September 24, 2009Homes of Hope, Inc. sought to create eight affordable housing units on an .848 acre lot in the township. The lot was located in a residential zone that allowed single-family homes but did permit multi-family dwellings. The lot already housed a building containing four dwelling units...
Tennessee Enacts New Law Surrounding Public Access to Zoning Ordinance and Map
Posted on September 24, 2009A new law in Tennessee requires the legislative bodies of the cities and counties to authenticate, compile, update, keep, maintain, and make available to the public the current zoning ordinance and map, in either electronic or paper version. The new law creates a presumption that a zoning ordinance and map made available to the public [...
Impact of Hurricane Katrina Sufficient Justification to Support Rezoning
Posted on September 23, 2009The County Development Commission entered into a contract to purchase 627 acres for use as an industrial park subject to a rezoning of the land from agricultural and light residential to industrial. Following a hearing, the County Board of Supervisors approved the rezoning based on evidence presented post-Hurricane Katrina that demonstrated, among other things, a [...
Town Violated Telecommunications Act In Failure to Allow Provider to Fill Gap in Service
Posted on September 22, 2009In 2002, Nextel (an Omnipoint/T-Mobile competitor) commenced litigation against the Town of LaGrange after the Town had denied Nextel’s application to replace an existing radio tower with new tower. The Nextel/Town lawsuit was settled in 2004, with the Town agreeing to allow Nextel to construct a new 150 foot monopole tower to replace the radio [...
Right-to-Dry Laws Promote Use of Solar Energy for Clotheslines
Posted on September 21, 2009Effective September 12, 2009, a new law in Maine designed to promote the use of solar energy and to avoid unnecessary obstacles to the use of solar energy devices declares legislative intent that owners and renters of residential property have the right to install and use solar energy devices, including a solar clothes-drying device...
Wisconsin Appeals Court Finds Municipalities Preempted from Regulating Solar and Wind Energy Systems Where Such Actions Set Policy
Posted on September 21, 2009The Ecker brothers are farmers who were seeking to expand their wind energy output by supplementing their one wind turbine with additional wind turbines. In order to get funding for the expansion, they needed an acknowledgement letter from Calumet County, which the County refused to grant...
Second Circuit Rules Public Nuisance Law May Be Used to Sue for Injuries from Global Warming
Posted on September 21, 2009The Court of Appeals for the Second Circuit ruled today that ?public nuisance? law can be used to sue power companies based upon injuries from global warming. Eight states of the US, New York City, and three nonprofit (NGO) ?land trusts? that seek to preserve environmentally sensitive land all sued power companies that own and [...
Revocation of Certificate of Compliance Requires Procedural Due Process
Posted on September 20, 2009In 2004, the plaintiff purchased land containing an auto repair facility and parking garage located in Long Island, New York. The previous owner obtained a certificate zoning compliance as a preexisting, non-conforming use in 1982. Since that time the property has been used continuously as an auto repair facility/parking garage...
Board?s Denial of Request to Restore Residence and Garage Arbitrary and Capricious
Posted on September 19, 2009An appeals court held that the denial by the zoning board of appeals of petitioner?s application to restore more than 50% of the floor area of a residence and semi-detached garage was arbitrary and capricious. The Court noted that the residence and garage had been lawfully connected since 1992 by an enclosed breezeway and that [...
Failure to Comply with Statute of Limitations Results in Dismissal of Mandamus Act
Posted on September 18, 2009The Petitioner brought a mandamus action to compel the zoning board of appeals to hear an appeal from a decision of the building inspector denying her application for a building permit. The Petitioner had a long history with the board as she had been seeking to construct a house located adjacent to a nonconforming marina...
Board Not Required to Act on Incomplete Site Plan Application
Posted on September 18, 2009The Plaintiffs brought an action seeking to declare that their application for site plan approval is deemed approved by operation of the local zoning law. The Court held that since the application was not complete, the planning board was not required to act upon it...
Following Settlement with Planning Board, Property Owners Barred from Federal Constitutional Claims by Res Judicata
Posted on September 17, 2009In February 2000, plaintiffs purchased a motel property. Before completing the transaction the plaintiffs claim that they inquired about what permits would be needed to develop the property and were allegedly told that none would be required. By June 2001, the plaintiffs had installed and begun to operate a snowmobile rental business...
Federal Sign Case Stayed Pending Outcome of State Proceedings
Posted on September 16, 2009In 2008, plaintiff, who constructs and leases billboards, applied to the city planning commission for permission to erect two new billboards. In accordance with city sign ordinances, both applications were accompanied by offers to eliminate an existing sign...
State High Court Upholds Zoning Board?s Denial of Area Variances to Allow for Creation of Two Nonconforming Uses
Posted on September 15, 2009The New York Court of Appeals overturned a decision of the appellate court reported on this blog in December. The State High Court found that the denial of area variances to allow the petitioner to create two nonconforming lots had a rational basis and was not arbitrary and capricious...
ZBA Had Authority to Grant Variance to Permit Driveway for Landlocked Parcel Regardless of Whether it was a Zoning Matter or a Land Use Matter
Posted on September 15, 2009Benjamin C. Moore and Alice G. Carter (collectively Moore, unless otherwise noted) jointly owned a parcel of land, designated as Lot 35 on Tax Map 5 in the Town of Mount Desert (?Town?). Lot 35 included a large area of land behind other lots and was connected to Millbrook Road by a thin strip of [...
Enforcement of Improperly Adopted Building Code Did Not to Give Rise to Due Process, Equal Protection, or Malicious Prosecution Claims
Posted on September 14, 2009Plaintiffs purchased a home in the Village of Four Seasons, Missouri, in 2003. They moved into the home in July 2004, prior to obtaining an occupancy permit. In September 2004, one of the defendants (a Deputy Building Inspector) inspected their home, allegedly finding numerous code violations and offering the plaintiffs the business card for his [...
Denial of Area Variances to Build on Substandard Lot Upheld
Posted on September 13, 2009Seven years after purchasing property in the Town, the owners applied to the zoning board for area variances to allow them to subdivide the property into two separate lots. The board denied the request. Twelve years after the denial, the owners, a husband and wife, conveyed a portion of property that was improved with a [...
ZBA?s Denial of Area Variance for Parking Upheld as Rational and Not Arbitrary or Capricious
Posted on September 13, 2009The zoning board appeals denied an area variance for parking that was associated with a mixed use residential and commercial property after the applicant requested the variance to allow for a dentist?s office in the commercial area. The appeals court found that the board properly applied the statutory factors in the balancing test for consideration [...
Variance Approvals to Allow for Two Substandard Lots Upheld
Posted on September 12, 2009Respondent was granted area variances to allow the subdivision of a parcel into two substandard lots to relocate a single-family residence currently located mid-parcel on one lot, and to construct a new single-family residence on the other. Petitioners appealed, alleging that the granting of the variances was arbitrary and capricious since the board failed to [...
Farm Worker Dwellings are Within the Definition of ?Agricultural Use Structures? and Therefore Exempt from Adirondack Park Agency Jurisdiction
Posted on September 11, 2009The owner-operators of an organic farm located with the Adirondack Park Agency (APA) and an agricultural district therein obtained a building permit from the town of Essex to construct three single-family dwellings on the farm for purposes of providing housing for farm workers...
Inclusion of Churches in Downtown Revitalization Program Not an Establishment Clause Violation Since Grants Awarded on a Neutral Basis
Posted on September 10, 2009Plaintiff sought to enjoin the city from including churches in its downtown revitalization program which was created to revitalize and curb any further deterioration of its downtown area. As part of the program, the city reimbursed owners of all buildings up to 50% of the cost of refurbishing the exterior of the building or parking [...
Sixth Circuit Affirms Detroit?s Adult Use Ordinance is Unconstitutional
Posted on September 09, 2009K & P Incorporated (K & P) has been operating an adult cabaret in downtown Detroit (the Premises) since 1986. It obtained a ?Group D Adult Cabaret? license from the City in 1994, which allowed adult entertainment and ?Legends? began featuring topless female dances in 1997...
Allegations That Minimum Square Footage Zoning Results in Discriminatory Impact/FHA Violations to Proceed to Trail
Posted on September 08, 2009Prior to 2006, defendant City of Brandon (?City?), Mississippi, enacted a zoning ordinance and a comprehensive plan. Under the plan single-family residences could be constructed in five zoning districts within the City. In June 2006, the City amended the zoning ordinances to require minimum floor spaces for single-family dwellings...
Individual and Association Lack Standing to Challenge Rezoning Due to Lack of Personal Injury
Posted on September 07, 2009In March, 2008, the Union County Board of Commissioners (County) rezoned property in Union County, South Dakota and issued a rezoning permit to Hyperion, LLC, (Hyperion) for the construction of an oil refinery and housing complex. Ed Cable (Cable) and Save Union County, LLC, (Save Union County) filed an appeal under SDCL 7-8-27 in the [...
Plaintiff Fails to State Claim for Equal Protection Violation
Posted on September 06, 2009Plaintiff owned property in New Jersey that he wished to subdivide and sell. Several neighbors gained approval to build homes on a road adjacent to the property. The crux of the Plaintiff?s complaint (as liberally interpreted by the Court since Plaintiff was pro se) is that that decision to deny his applications and approve his [...
Colorado Enacts Solar Ready Homes Law
Posted on September 05, 2009Colorado Governor, Bill Ritter signed into law the “Solar Ready Homes” bill in May 2009. Introduced as HB 1149, the new law requires homebuilders to offer future homeowners an option for solar pre-wiring, and to provide purchasers with a list of contractors to install such technologies...
Surf School Housed in a Nonconforming Hotel is Not Entitled to Nonconforming Use Status
Posted on September 04, 2009Respondent, Hans Hedemann Surf School (Surf School), is a commercial surfing school located on the ground floor (Shop #7) of the New Otani Kaimana Beach Hotel (Hotel). When the Hotel was built in 1950, the property was zoned as part of the Hotel and Apartment District...
Proposed Initiatives Regarding Location of New City Hall and Prohibition of Zoning, Eminent Domain and Condemnation in Certain Locations Invalidated on Grounds Proposals Were Administrative in Nature
Posted on September 03, 2009Appellants, Citizens of the City of Fairway, Kansas, proposed two city ordinances by way of the initiative and referendum authority granted in K.S.A. 12-3013. The first ordinance, entitled ?Restrictions on the Future Relocation of the City of Fairway City Hall? or ?City Hall Petition,? is designed to restrict to City from relocating its city hall [...
Use of Separate Leases for Individuals Occupying a Suite in a Single Dwelling Unit Satisfies Definition of ?Family? in Zoning Code
Posted on September 02, 2009Cresmont Properties Ltd. (”Cresmont”) owned property near Johns Hopkins University on which they sought construction and occupancy permits for a proposed apartment complex that would contain 26 dwelling units. Each dwelling unit would have four individual lessees in that each individual would have a separate lease agreement with Cresmont to rent one bedroom in a [...
Resort Dock and Swim Float Determined to be Noncommercial Valid Accessory Uses
Posted on September 01, 2009Lakeside is a condominium association made up of owners of residential units located on Moose Pond in Bridgton, Maine. The property the units are located on is next to Shawnee Peak, a ski resort formerly owned by a company named Pleasant Mountain. In 1997 a permit was issued by the Town of Bridgton to Shawnee [...
Condemnation of Low-Income Housing Not Pre-empted by Federal Statutes
Posted on August 31, 2009Evergreen Terrace, which contained 356 apartments, participated in the § 8 and § 221 programs since 1960, however in the late 1970?s the owner was in default on the mortgage loans and the Department of Housing and Urban Development (?HUD?) paid off the lenders and became the mortgage holder, foreclosed, and took title...
No Violation of Telecommunications Act Where Denial was in Writing and Supported by Substantial Evidence
Posted on August 30, 2009Sprint Spectrum alleged that the County?s denial of a special use permit to construct a telecommunications tower violated the Telecommunications Act asserting that the denial was not in writing and that it was not supported by substantial evidence. The Company sought to construct the tower on a parcel just over 7 acres that was owned [...
Potentially Intimidating Code Inspections Did Not to Violate the Fair Housing Act
Posted on August 29, 2009Plaintiffs, owners of an apartment complex, recently brought a suit against the City of Dallas and specific city officials for allegedly violating the Fair Housing Act (?FHA?), 42 U.S.C. §§ 3601-3019. AHF acquired several properties including Bent Creek Apartments (?Bent Creek?)...
Video Lottery Facility Licenses Would Not be Issued by Commission Where Local Zoning Would Not Permit Such Use
Posted on August 28, 2009On December 19, 2008, the Video Lottery Facility Location Commission issued a ?Request for Proposals for Video Operation Licenses? and established February 2, 2009 as the submission deadline. The Location Commission responded to questions from potential applicants for licenses and in particular responded to the question ?[i]f an Applicant is awarded a license and then [...
Board?s Failure to Set Forth Reasons for Denial of Requested Modification to Special Use Permit Invalidates Action
Posted on August 27, 2009In 1992, Wendy?s Old Fashioned Hamburgers of New York, Inc. (Wendy?s) petitioned the Board of Appeal of Billerica (Board) for a special permit and a variance to allow construction of a restaurant with a ?drive-through window.? The proposed restaurant would to be located at the intersection of Boston and Pollard Roads in the town of [...
City Enjoined from Requiring Use Permits for Live Entertainment to ?Maintain? Zoning District Integrity
Posted on August 26, 2009Plaintiff, the owner and operator of a restaurant, recently challenged a City of Stockton code requiring permits for live entertainment. The stated purpose of requiring the permit was to ?maintain or strengthen the integrity and character of the neighborhood and zoning district? in which the entertainment was to be held...
Licensed Home Occupation/Daycare Violates Restrictive Covenant
Posted on August 25, 2009Plaintiffs and defendants are next door neighbors in Parkview South Second Addition in Fargo, North Dakota. Their homes are subject to a ?Declaration of Restrictive Covenants and Reservation of Public Utility Easements.? Since purchasing their property in 2001, defendants have operated a licensed day care in their home...
Court Upholds Conditional Rezoning to Allow for Medical and Dental Clinic and Other Commercial Uses
Posted on August 24, 2009Savala, who owns a parcel of approximately 8.09 acres, located in Canyon County in an ?A? (Agricultural) zone, sought to locate a medical and dental clinic on his property, as well as to promote other commercial uses. In April 2005, Savala submitted an application with the Planning and Zoning Commission requesting: (1) a comprehensive plan [...
Town Rezoning Not Subject to State Environmental Review Since Adirondack Park Agency is Responsible for Environmental Review Standards in the Park
Posted on August 23, 2009Respondents are potential developers of a project consisting of over 6,000 acres of land in the Town of Tupper Lake (NY), which they were in the process of purchasing from respondent Nancy Hull Godshall, as trustee of respondent Oval Wood Dish Liquidating Trust (?developers?)...
Permit For Gravel Mine Did Not Violate Comprehensive Plan and Concerns Over Loss of Property Value Not Supported by Evidence
Posted on August 22, 2009The South Dakota Supreme Court ruled a county commission?s decision to grant a conditional use permit for a gravel extraction operation did not violate the county?s comprehensive plan or zoning ordinance, and was not arbitrary or capricious The objections of a neighboring landowner concerned about loss of property value were not supported by probative evidence, [...
Zoning Amendment and Subsequent Revocation of Building Permits Did Not Violate Due Process Property Rights
Posted on August 21, 2009The O?Neals alleged that their substantive and procedural due process rights were violated because the municipality improperly amended its zoning laws, made misrepresentations regarding the amendment, and improperly revoked their building permits. The Eleventh Circuit concluded that summary judgment for the City on the substantive and procedural due process claims was proper...
Names of Applicants for Master Plan Comprehensive Committee Must Be Disclosed
Posted on August 21, 2009A Freedom of Information Law request was submitted to a town board seeking the names of all applicants requesting for appointment to the Master Plan Comprehensive Committee. The town denied the request, asserting that it was an unwarranted invasion of personal privacy...
Revocation of Conditional Use Permit For Motorcycle Dirt Track Does Not Violate Constitutional Rights
Posted on August 20, 2009In 2006, plaintiffs applied for and received a conditional use permit (?CUP?) to operate a motorcycle dirt track on their property. After receiving numerous complaints about the track the county board of commissioners informed that the plaintiffs that the CUP would be reviewed and possibly revoked after a public hearing...
RLUIPA Claims Dismissed as No Land Use Laws Implicated With Animal Sacrifice
Posted on August 20, 2009The Santeria religion involves sacrifice of live animals during celebrations and ceremonies. A large ceremony takes place when a new priest is initiated into the religion and it generally involves the sacrifice of ?five to seven four-legged animals (lambs or goats), a turtle, a duck, ten to fourteen chickens, five to seven guinea hens, and [...
Court Upholds Electors Rejection of Golf Course Rezoning to Cluster Housing for Seniors
Posted on August 19, 2009Hawthorne Valley Country Club, L.L.C. (?Hawthorne Valley?) and Hawthorne Golf Estates, L.L.C. (?Hawthorne Golf?) own property containing about 204 acres of land in Ward 5 of Solon. Hawthorne Valley owns about 142 acres, which is currently being used as a golf course, and Hawthorne Golf owns the remainder, which is undeveloped...
Commission?s Denial of Site Plan for Six Mini Stores Upheld as Decision Did Not Violate Due Process or Equal Protection, Nor Was it an Abuse of Discretion
Posted on August 19, 2009Town and Country Foods, Inc. (T & C) wants to build on its land in a district zoned B-1 according to the Bozeman Unified Development Ordinance (UDO). The B-1 zone is a ?neighborhood business district? and limits buildings to 5,000 square feet. When the City rejected T & C?s proposal to build a 32,000 square [...
State Law Does Not Preempt Zoning Regulating Location of Family Cemetery
Posted on August 18, 2009A State statute in Arkansas authorizing the state department of health to grant or deny permits for cemeteries did not conflict with a local zoning ordinance requiring a conditional use permit to locate a cemetery in an agricultural zone. Hence, the state statute did not preempt the city ordinance...
RI Supreme Court Finds that Improvements to Nonconforming Use Did Not Violate Zoning Ordinance
Posted on August 17, 2009The Supreme Court issued a writ of certiorari on the petition of the Inn at Cliff Walk, Inc., d/b/a The Chanler to review a Superior Court judgment that reversed a decision of the Zoning Board of Review for the City of Newport (board). The Superior Court found that a series of improvements made to the [...
Equitable Estoppel Doctrine Applies to Verbal Amendment of Annexation Agreement in Illinois
Posted on August 17, 2009In September 1997, the Village of Frankfort annexed property subject to an annexation agreement with H & D Development Corporation and State Bank of Countryside. The agreement zones the property ?C-4 PUD? and identifies authorized uses. The agreement remains in effect until September 2017 and states that it is applicable to the parties? successors in [...
Commission Acted Improperly in Approving Site Plan Where Developer Failed to Obtain Required Permits
Posted on August 17, 2009Colchester, LLC submitted a site development plan application for a proposed retail and development and anchor store (building A) to the Town zoning and planning commission in February, 2002. Without knowledge of the potential tenants of the development at the time the application was submitted, Colchester, LLC only sought a footprint approval for building A...
Historic Desegregation/Affordable Housing Agreement Proposed in Westchester County, NY
Posted on August 16, 2009County Legislators have until September 25, 2009 to decide whether to ratify a proposed landmark settlement between the federal government and the county which has been signed by the county executive. The proposed agreement would settle a three year old lawsuit alleging that the County took tens of millions of dollars in federal housing related [...
Special Use Permit Did Not Lapse Due to Delay in Continued Construction Resulting for Township Sewer Problem
Posted on August 16, 2009Plaintiffs obtained a special permit from the planning board to construct eighty-four townhouse condominium units in phases subject to a number of conditions. The first permit for phase one was issued in April, 1986 and in March, 1987 the fist occupancy permit was issued...
Removal of Planning and Zoning Commission Chairman Did Not Violate Due Process
Posted on August 15, 2009Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman. He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission...
NY Governor Issues Climate Action Executive Order
Posted on August 15, 2009On August 6, 2009, NY Governor David Paterson issued an executive order calling for the preparation of a Climate Action Plan to be drafted by a newly appointed interagency Climate Action Council to be chaired by the Director of State Operations. The Governor announced that it shall be the goal of the State to reduce [...
Use Variance Upheld for Conversion of Historic Mansion to Office Space
Posted on August 14, 2009The Gibraltar Estate in Wilmington, Delaware consists of gardens and a 17,000-square foot mansion built in 1844. It is located in an R-1 residential zone and is on the National Registry of Historic Places. In 1997, the owners of the estate conveyed the property to the non-profit organization Preservation Delaware, Inc...
Zoning Board Improperly Denied Special Exception for Access Road
Posted on August 14, 2009The Town appealed from an order of the Superior Court vacating a decision of the Town?s zoning board of adjustment (?ZBA?) that had denied a special exception to appellees, Continental Paving, Inc. (?Continental?) and New England Power Company (?NEPC?)...
City Violated Telecommunications Act by Failing to Rebut Evidence as to Lack of Alternative Sites
Posted on August 13, 2009In an effort to expand its coverage in the City of Anacortes (?City?), T-Mobile applied for a special use permit (?SUP?) to construct an additional wireless telecommunications facility (?WCF?) which would consist of a 116-foot monopole antenna for cellular telephone service...
Court Upholds Approval After Planning Board Satisfied with Noise Mitigation Measures for Shooting Range
Posted on August 13, 2009Country Pond owns and operates a shooting range on 10.75 acres in Newton, New Hampshire. It began operation in 1962, before Newton had adopted its first zoning ordinance in 1973 and specific noise ordinances in 2005 and 2006. Sara Realty purchased a campground west of the shooting range in 1999...
?Shabbos House? RLUIPA Suit May Proceed as Practice of Visiting the Sick Is a Religious Exercise
Posted on August 12, 2009The most recent issue of Religious Freedom in Focus from the U.S. Department of Justice features the following case summary discussing a matter arising in Rockland County, New York regarding the location of religious housing to allow for visits to the infirmed in a nearby hospital...
Third Circuit Reviews Application of Rooker-Feldman Doctrine Precluding Review of Matters Decided in State Court
Posted on August 12, 2009Following the denial of a variance request in 2003 to use a single-family home as a boardinghouse, Koynok appealed to the trial court who affirmed the decision of the zoning hearing board. In 2005, Koynok again applied to the zoning hearing board, this time for a special exception to use the property as a boardinghouse...
City?s Refusal to Process Permit for Church Sponsored Homeless Housing Violates State Constitution
Posted on August 11, 2009In 2004, Northshore United Church of Christ (Church) executed a contract with the City of Woodinville (City) and the Seattle Housing and Resource Effort/Women?s Housing Equality and Enhancement Project (Share/Wheel) for the temporary use of City property for Tent City 4 — a moveable encampment of homeless people...
Club Owner?s Section 1983 Claims Following Invalidation of Rave/Dance Hall Ordinance Barred by Statute of Limitations
Posted on August 11, 2009Plaintiff, the proprietor of a rave/dance hall, was arrested on four separate occasions in June 2000 for violation of the country?s rave/dance hall ordinance. In response to the ordinance and the County?s actions in enforcing it, the plaintiff commenced an inverse condemnation claim in the United States District Court for the Middle District of Florida...
Synagogue?s RLUIPA Claim Not Yet Ripe for Review
Posted on August 10, 2009Congregation Anshei Roosevelt is housed in a building that was constructed before any zoning regulations were adopted by the Borough. Subsequent zoning ordinances allow for houses of worship in the District as conditional uses. Although the synagogue does not meet all of the necessary use conditions, it is allowed to continue as a nonconforming use...
Commission Properly Denied Rezoning Request to Permit Residential Development Next to Firing Range
Posted on August 10, 2009The Plaintiff purchased land in 2005 in Burlington Township that was zoned agricultural. The land is located near a law enforcement firing range, a private shooting range, and a private archery range. In 2007, the Ward County Planning Commission (?Planning Commission?) preliminarily approved plaintiff?s plan for a 12-lot residential subdivision...
Town Officials May Face Additional Sanctions for Actions Following Successful Due Process Suit by Homeowner
Posted on August 09, 2009The Plaintiff homeowner prevailed against the Town of Islip (?Town?) in a lawsuit for violation of procedural due process. The violation stemmed from the Town attempting to revoke the Plaintiff?s right to maintain a nonconforming use of his property...
Rutgers University Bloustein On-Line Continiung Education Courses for Planners and Land Use Lawyers
Posted on August 09, 2009Once again, the Bloustein School of Planning and Public Policy is offered a treasure trove of on-line courses for planners, lawyers and other professionals involved in planning and land use regulation. Among the offerings is Current Trends in Land Use Law, which runs from October 21, 2009 through December 5, 2009...
Commission Not Barred from Ruling Contrary to Staff Recommendation
Posted on August 08, 2009A developer?s expenditure of $50,000 on a subdivision application, relying on a planning commission staff opinion that the project was not subject to the county?s mountain overlay district rules, did not prevent the county commission from taking the opposite position and denying the application...
PA AG Has Authority to Preemptively Challenge Local Regulation of Agricultural Uses as Inconsistent With State Policies
Posted on August 08, 2009The Attorney General brought an action against Locust Township and Locust Township Board of Supervisors under chapter three of the Agricultural Code (ACRE) which addresses local regulation of normal agriculture operations and provides that they must be consistent with state policies and regulations...
Board?s Denial of Access Road Needed for Senior Housing Development on Abutting Parcel Upheld
Posted on August 07, 2009Petitioner, BBJ Associates, LLC, owns land that straddles the municipal border between the Towns of Kent and Carmel. It plans to build a multi-family senior citizens? development on a portion of its land located in the Town of Carmel. To that end, it sought to build an access road running through both towns which would [...
Planner?s Conflict of Interest Does Not Require Submission of New Application
Posted on August 06, 2009Plaintiffs appealed the grant of a preliminary major subdivision alleging, among other things, that the Township planner had a conflict of interest since the initial environmental impact statement (EIS) was prepared by the planner prior to her appointment as the Township a planner...
Town Properly Issued Waiver from CAFO Distance Restriction
Posted on August 05, 2009Pursuant to a county zoning ordinance in Kingsbury County, South Dakota, a Class A concentrated animal feeding operation (CAFO) ?cannot be situated closer than four miles from buildings within incorporated municipal areas, plus 440 feet for each additional 1,000 animal units over 1,000...
CT Municipalities May Not Require Off-Site Sidewalks as a Condition of Subdivision Approval
Posted on August 04, 2009On October 6, 2006, the plaintiff (Buttermilk Farms, LLC) filed an application with the Commission seeking approval of a proposed subdivision of its property located in Plymouth (?Town?), into five buildable residential lots. Each lot abuts the southeast side of Lane Hill Road, which is in poor condition...
Municipalities May Regulate Secondary Effects of Adult Business Uses in General, Without Putting Forth Evidence as to the Negative Effects Resulting from Each Individual Business Impacted
Posted on August 03, 2009In 1994 the City of Charlotte (?City?) enacted an Adult Zoning Ordinance (?AZO?) to protect certain sensitive uses from the secondary effects associated with adult establishments. The ordinance contained an amortization provision that required adult establishments to close or relocate the appropriate distance by January 18, 2002...
District Court Finds Ban on Billboard Extensions Unconstitutional
Posted on August 02, 2009In November 2000, the City of St. Paul, Minnesota adopted a total prohibition on new advertising signs, including billboards. Existing billboards have since been considered to be legal nonconforming uses. In March 2006 the City amended the Code to ban the use of extensions on all billboards in St...
Failure of Board Members to File Financial Disclosure and Oath of Office Statements Did Not Void Denial of Special Exception
Posted on August 01, 2009Following the denial of a request for a special exception for construction of 92 single family homes, applicants appealed. Pending a remand from the Pennsylvania Supreme Court for consideration of whether the matter should be reopened because of after-discovered evidence (the deposition testimony of a Board member alleging that other Board members adopted an unwritten [...
Idaho Supreme Court Gives Green Light for Affordable Housing Project
Posted on August 01, 2009On December 8, 2004, Clear Creek LLC (?Clear Creek?) filed with Blaine County applications for a conditional use permit (?CUP?), for a community housing planned unit development (?CH-PUD?), and for a subdivision permit seeking to develop three parcels of land totaling 23...
Highway Beautification Act Regulations Prohibit Local Governments From Amending Zoning Solely to Accommodate Billboards
Posted on July 31, 2009The subject property in an R2B zone (one and two family medium-density residential) is located less than 660 feet from an interstate highway and within a ?Billboard Zone? created by the City in 2003 as part of a comprehensive zoning plan. As part of a litigation settlement in 2006, the City issued a permit to [...
Neighbor of View-Obstructing House Fails to Demonstrate Due Process or Equal Protection Injuries
Posted on July 30, 2009Frog Hollow Builders (Frog Hollow) purchased land in Glen Cove, New York, with the intention of building a residence to sell. Initially Frog Hollow began the process of obtaining a variance to build. After the zoning board requested more information, Frog Hollow altered their plan to one that would not require a variance...
Petitioner Lacked Standing to Challenge Environmental Review Over Consolidation of Manufacturing Facility
Posted on July 30, 2009In 2007, Beach-Nut Corporation decided to consolidate its two Montgomery County manufacturing facilities located in the Village of Canajoharie and in the Town of Fort Plain respectively with its corporate headquarters located in Missouri. Beach-Nut sought to build a new facility in a business park owned by respondent Montgomery County Industrial Development Agency (IDA) located [...
Unexpended Impact Fees Must be Returned to Owners
Posted on July 29, 2009At issue is an impact fee ordinance from Anne Arundel County (MD) that provides that if fees ?have not been expended or encumbered by the end of the sixth fiscal year following collection? the Office of Finance shall publish notice of the availability of a refund within 60 days of the end of the fiscal [...
?Rolling? Beach Access Easement May Violate Fourth Amendment
Posted on July 28, 2009The 5th U.S. Circuit Court of Appeals ruled that a beachfront landowner may have a cause of action under the Fourth Amendment for an unreasonable seizure of her property, separate and apart from a Fifth Amendment takings claim, arising from the state?s imposition of a ?rolling? beach access easement on the property Because it considered [...
Variances Upheld as Board Applied Statutory Balancing Test
Posted on July 28, 2009On appeal challenging the granting of area variances, the appellate court reminded that local zoning boards have a wide discretion in considering applications for area variances, and that judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion...
Municipal Policy Favoring Siting of Wireless Facilities on Government Property Does Not Necessarily Violate the Telecommunications Act
Posted on July 27, 2009Seeking to build a cell phone tower, disguised as a 150-foot flagpole, on an abandoned restaurant site, the company entered into discussions with the municipality. The village indicated that the company could obtain expedited approval to build the tower on village property, but that approval would not be granted for the private site...
New Hampshire Supreme Court Requires Remand to Planning Board of Conservation Development Subdivision Application
Posted on July 27, 2009The town planning board approved a conservation development subdivision (CDS) proposal and yield plan by developer Graystone Builders, Inc. (Graystone). The neighbors of the CDS appealed and the superior court affirmed the CDS but remanded the yield plan to the board to resolve a wetlands compliance issue...
No Judicial Review for Regional Housing Needs Allocation in California
Posted on July 26, 2009The following is from the Bingham McCutchen July 22, 2009 Land Use Alert: The Government Code requires that the housing element of each city and county’s general plan be updated, generally every five years, to accommodate that jurisdiction’s fair share of regional housing needs...
Court Upholds Enforcement Order to Clean Up Property
Posted on July 26, 2009Albert was charged on September 1, 2005 and September 22, 2006 by a Billings Code Enforcement Officer with violating BMCC 27-601(g) by storing salvage on his residence. Due to complaints received from Albert?s neighbors, City Code Enforcement Officers (?CCEO?) tried repeatedly to work with Albert to clean up his property, but he was not compliant [...
APA Approves Annual ALI-ABA Land Use Institute for 16 Continuing Education Credits
Posted on July 26, 2009The American Planning Association has approved the August 26-29, 2009 ALI-ABA Land Use Institute in San Diego for 16 continuing education credits. For a summary of the course appearing on this blog click here I tis not too late to register. For more information, see the Institute brochure available at: http://www...
Preliminary Injunction Upheld to Prevent Residents from Using Lots for Aircraft Takeoff and Landing
Posted on July 25, 2009The defendants, owners of two parcels, challenged The Town sought to enjoin the defendants from using two parcels they owned for purposes aircraft takeoffs and landings without a special permit. The Town Code defines ?airport? as ?[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and [...
Although Court Applied Futility Exception to Exhaustion of Administrative Remedies in Fifth Amendment Case, Plaintiffs Failed to Seek Compensation in State Court First
Posted on July 25, 2009Plaintiff Donovan Realty owns a parcel of land which it rents to a recreational vehicle and boat retailer. The retailer had been using an overflow parking lot to store sold units until customers picked them up. This use violated the approved site plan, which designated the overflow lot ?[as] to be used solely for RV [...
Zoning Director and Planning Director Positions Not Necessarily Required to Offer Equal Pay
Posted on July 24, 2009The County Zoning Director, a female, brought a lawsuit under the federal Equal Pay Act, claiming that the County violated the Act by paying her $15,000 less than it pays the male Planning Director. She alleged that the positions of Zoning Director and Planning Director are equal positions because they require equal skill, effort and [...
Challenge to Notice of Expired Amended Use Permit is Time-Barred
Posted on July 24, 2009Following a letter from the City in 2006 notifying the property owner and tenant that the amended use permit for the operation of a portable concrete mixing plant had expired, and the issuance of a Stop Work Order in 2007, the Petitioners (owner/tenant) challenged the determination more than a year after the initial letter was [...
Medical Doctor?s Use of Home to See Patients Permitted Where Restrictive Covenants Ambiguous
Posted on July 23, 2009The defendant, a medical doctor, uses her primary residence – where she resides with her husband and children – to see zero to two patients per day in her family room. She has no professional listing in the telephone book and no signs advertising her practice...
County?s Decision on Whether to Amend Comprehensive Plan Not Reviewable by Court
Posted on July 22, 2009Following a request by Burns Holding for an amendment to the County Comprehensive Plan and a rezoning of its property to allow for a concrete batch plant on its 49-acre site, the Board of Commissioners denied the application for a comprehensive plan amendment and took no action on the rezoning request...
Area Variance Denial Upheld as Board Properly Weighed Statutory Factors
Posted on July 22, 2009Where the zoning board of appeals weighed the relevant statutory factors and determined that the requested area variance would produce an undesirable change in the character of the neighborhood, that the requested variance was substantial, and that the petitioner?s alleged hardship was self-created, its denial of the variance had a rational basis and was not [...
Rescinded Contract for Boat Mooring Rights Did Not Violate Due Process, Equal Protection or First Amendment
Posted on July 21, 2009Plaintiffs submitted a bid to acquire the license to operate the mooring and tender service for the town of Huntington, New York. The town retains exclusive control over moorings in its harbor. Plaintiffs submitted the highest bid and so the town passed a resolution awarding the license to them...
Court Holds That Documents Disclosed by County to Developer Remained
Posted on July 21, 2009Note: The following is from the Bingham McCutchen Land Use Development Alert (July 16, 2009). Developers and their opponents have argued for years over the scope of disclosure required by CEQA (California Environmental Quality Act) for agency staff materials that have been shared with a developer...
Town Residents Who Were Not Adjacent Property Owners Lacked Standing to Challenge Public Boat Launching Site
Posted on July 20, 2009Following a request by the Board of Selectmen to improve the Westport Island?s only public boat-launching site, the planning board approved the project. The proposal included improvements to the boat ramp and access road as well as expansion of the parking area, and it was expected to increase daily trips to and from the site [...
Stipulation of Settlement Did Not Violate Provisions of State Law Regarding Referral Recommendation Requirements
Posted on July 19, 2009The Hillside Avenue Preservation Association sought an order vacating the settlement agreement entered into between the Village Board of Trustees, the Planning Board, the Building Inspector and the County Planning Department with Congregation Mischkinois Lavier Yakov, on the grounds that it violates State law...
Use Variance Makes the Use Conforming and No Further Variances Are Required for Expansion Where Original Variance Did Not So Limit
Posted on July 18, 2009Petitioners are owners of an 8.29-acre shopping center. The original building was constructed in 1956 after the Court at the time determined that the owners had a vested right to build under zoning code provisions applicable to a neighborhood retail district in which the property was situated prior to 1956, despite the fact that the [...
Enactment of Moratoria is a Non-Reviewable Legislative Matter, But Whether Council Acted in Bad Faith in Denying Site Plan is a Question of Fact
Posted on July 17, 2009Geisler purchased property in the Overlay District of Cedar Falls for the purpose of developing an eight-unit apartment complex. He submitted a site plan to the planning and zoning commission in May, and during the commission meeting the city planner stated that the plan meet all of the basic ordinance requirements...
Court Upholds Fine of $100 Per Day Property was not in Compliance with Consent Decree
Posted on July 16, 2009The zoning administrator issued a notice of violation to the Vereens for violating the zoning ordinance by keeping on their property inoperable vehicles, tires, trailers, boats , a mobile home and other debris. After failing to comply with the ordinance for four months, the County sought a court declaration that the property was a prohibited [...
Member of the Public May Be Subpoenaed for Misrepresenting Public Official?s Statement Before Landmark Commission
Posted on July 15, 2009In a case this blog has been following since the appellate decision was issued a year ago, the New York Court of Appeals recently upheld the City of New York Department of Investigation’s authority to subpoena private citizens during an investigation regarding a public hearing before the City Landmarks Commission...
VT Superior Court Blocks Enforcement of Residency Restriction Ordinance for Convicted Sex Offender
Posted on July 14, 2009Parties are due back in Court this week (July 16th) in a case challenging the residency restrictions for convicted sex offenders in the City of Barre, Vermont. The American Civil Liberties Union is representing a young man who claims that he can no longer live with his wife and children in Barre as a result [...
Neighbor Has Standing to Sue for Granting of a License to Build a Dock Prior to Construction
Posted on July 13, 2009The Supreme Court of Georgia reversed a decision by the Georgia Court of Appeals and ruled that a couple living in the coastal marshlands has the right to sue the State for granting a neighbor a license to build a dock. Jane Britt Vasarhelyi sought, and obtained, a license from the State Department of Natural [...
Controversial Florida Hometown Democracy Initiative Clears Hurdle For November 2010 Ballot
Posted on July 12, 2009Now known as ?Amendment 4,? the Florida Hometown Democracy initiative cleared major hurdles on the way to the fall ballot. In June 2006, the Florida Supreme Court held that the initiative does not violate the rule that all proposed amendments must stick to a ?single subject;? and the court found that the ballot language is [...
Washington State Enacts New Regional TDR Law
Posted on July 11, 2009In an effort to slow the conversion of rural, farm and forest land, effective July 26, 2009, the State of Washington will implement a new regional transfer of developments rights (TDR) law focused on four counties and 71 cities within the Puget Sound region...
One Maryland: Smart, Green and Growing Legislative Package Enacted
Posted on July 11, 2009The Smart and Sustainable Growth Act of 2009 which took effect on July 1, 2009, was designed to strengthen the connection between land use actions and the comprehensive plan as a result of the 2008 Supreme Court ruling in Trail v. Terrapin Run, LLC, 403 Md...
Preliminary Injunction Upheld to Prevent Residents from Using Lots for Aircraft Takeoff and Landing
Posted on July 10, 2009The Town who sought to enjoin the defendants from using the two parcels they owned for purposes aircraft takeoffs and landings without a special permit. The Town Code defines ?airport? as ?[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraft being used [...
Denial of Variance for Sign Upheld, But Trial Court Erred in Considering Testimony/Evidence Not Presented to the BZA
Posted on July 09, 2009Since 1991, Edward Rose has displayed a 16.75-foot tall, 409.75-square-foot on-premises pole sign to advertise its apartment units as well as to provide the company?s contact information (phone number, website, etc.). In March 2007, Edward Rose received a notice that the sign was in violation of several zoning ordinances, specifically provisions limiting the sign to [...
Board Properly Denied Area Variances for Already Constructed Decks
Posted on July 08, 2009Respondents James and Penny Wohrle and Respondent Jerry Judd (collectively Respondents) constructed decks on their respective properties on Coeur d?Alene Lake without having first obtained either a variance or building permit from Appellant Kootenai County...
Attorneys for Plan Commission Lack Authority in a Mediation to in Essence, Approve Subdivision Application
Posted on July 07, 2009Following denial of its request for primary plat approval for a subdivision, The Lake County Trust Company (?LCTC?) appealed and the trial court ordered mediation. Eventually the Commission and LCTC reached a written settlement agreement (the ?Agreement?) providing that LCTC submit a revised primary and sketch plan in accordance with the Agreement, and then the [...
2009 ALI-ABA Land Use Institute ? August in San Diego
Posted on July 07, 2009The Annual ALI-ABA Land Use Institute is the most comprehensive national planning and land use law course offered regularly across the country. This year, the course site is the Westin Gaslamp Quarter in San Diego, CA. Planning co-chairs Frank Schnidman, Esq...
TX Supreme Court Finds City Ordinance Preventing Use of Homes for Ministry for Released Convicts Violated State RFRA
Posted on July 06, 2009In 1999, Texas enacted the Religious Freedom Restoration Act (TRFRA) which provides that, ?a government agency may not substantially burden a person?s free exercise of religion [unless it] demonstrates that the application of the burden to the person ...
Special Use Permit for Home Occupation Properly Denied
Posted on July 05, 2009A denial by the zoning board of appeals for a special use permit to allow the applicant to maintain a home business was not arbitrary and capricious nor contrary to law since the board rationally determined that the Petitioner did not meet the requirement of the Town Code that he reside on the subject premises...
Town?s Request for Supplemental Information Related to Downsizing of Shopping Mall Upheld
Posted on July 05, 2009After more than eleven years of legal wrangling, the New York Court of Appeals denied cert, finally closing the chapter and letting stand a holding that the Town?s request for a Supplemental Environmental Impact Statement (?SEIS?) in response to a developer?s submission of a mitigated development plan was not arbitrary and capricious...
NY Court of Appeals Discusses Peculiar Nature of Quarrying for Purposes of Nonconforming Use Status
Posted on July 04, 2009Concluding that due to the peculiar nature of quarrying, it is unrealistic and unreasonable to require the owner of a large tract of land used for quarrying to have actively mined all areas of the parcel prior to the enactment of a zoning ordinance for purposes of acquiring vested rights in a nonconforming use to [...
Zoning Board May Properly Grant Variance on Second Request Where Circumstances Change
Posted on July 03, 2009The Respondent requested area variances to permit him to subdivide a parcel into two substandard lots where he intended to relocate a single-family residence currently located on mid-parcel onto one lot, and to construct a new single family residence on the other lot...
Modification to Conditional Use Permit Reducing Number of Parking Spaces Upheld
Posted on July 02, 2009Dehnert owned a piece of property that was divided by a city street right of way. On the west side of the street, his parcel contained restaurant space, and on east side of the street the parcel contained a marina. Dehnert applied for several variances and an amendment to a conditional-use permit (CUP) issued in [...
Court Remands to Determine Whether Special Facts Exist to Show Moratoria and Delay Were Unreasonable and in Bad Faith
Posted on July 01, 2009Six months following the filing of a commercial site plan application with the Town Department of Planning, Environment and Land Management to develop a retail building which was a permitted use under the applicable zoning ordinance then in effect, the Department responded with a number of conditions that had to be met before the application [...
Municipalities May Not Consider Comprehensive Plans and Other Land Use Regulations When Determining Whether to Establish an Agricultural Security Area
Posted on June 30, 2009In June 2007, the Board of Supervisors of East Lampeter Township received a petition by a group of Amish farmers to establish an Agricultural Security Area (ASA) encompassing 13 farms and 788 acres. The farmers were motivated by a desire to discourage nuisance laws that restrict farming and to limit the government?s ability to condemn [...
Property Owner Lacks Standing to Challenge CAFO Located One-Third of a Mile Away
Posted on June 29, 2009Following approval by the board of zoning appeals of a special exception to allow for a concentrated animal feeding operation (CAFO) which would house 2,000 cows on 27 acres, Thomas, who owned property located one-third of a mile from the site appealed to the circuit court...
Board Properly Denied Requested Relief for Extraordinary Hardship for Auto Dealership
Posted on June 28, 2009When reviewing a decision of the Town Board which determined that the Petitioner’s proposed uses of the subject property were not permitted under the zoning code, and which after a hearing denied the application for extraordinary hardship relief (to wit, an extension of time in which to obtain site plan approval for a proposed open [...
Town Properly Conducted Environmental Review for Proposed Wal-Mart Project
Posted on June 27, 2009After determining that the Petitioner homeowners association had standing to challenge the project review since it met its burden of establishing “that at least one of its members would have standing to sue, [and] that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual [...
Municipal Lease for Siting of Cell Tower Did Not Violate Zoning
Posted on June 26, 2009In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower in the Town. In October 2006, the Town Council voted to authorize the Town to enter into a site lease. Realizing that it had not followed the statutory procedures required to lease municipal property, the Town began taking the necessary [...
Production of Biodiesel Fuel for Off-Site Use is Not a Bona Fide Farm Use for Purposes of Zoning Exemption
Posted on June 25, 2009Farm owners applied to have a part of their farm rezoned from single-family residential to heavy manufacturing conditional use district for the purpose of allowing for the ?manufacture of soybeans and other crops to biodiesel.? The County Board of Commissioners approved the application and the Plaintiff?s sued...
Commission May Require Bond to Ensure Proposed Farming Activity Will Take Place
Posted on June 24, 2009In 2004, Deojay purchased property containing an abandoned house, farm debris, overgrowth, and wetlands. In November, he filed an application for a certificate of compliance with the Town noting that there were wetlands or watercourses on the property and he indicated that he intended to use the property for residential use...
Conditions Restricting Hours of Operation, Cleaning and Security for Home Depot Were Arbitrary
Posted on June 23, 2009An appeals court determined that a number of conditions imposed on the approval of a site plan application for the remodeling of a commercial building in order to open a retail store were arbitrary and hence impermissible. Specifically, the Town Board’s attempt to restrict the hours during which Home Depot could operate its business and [...
SCOTUS Grants Cert in Florida Beach Restoration Case Providing an Opportunity to Address Regulatory Takings
Posted on June 22, 2009In September 2008, the Florida Supreme Court determined that on its face, the Beach and Shore Preservation Act does not unconstitutionally deprive upland owners of littoral rights without just compensation, and noted that its decision is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act...
White House Releases Report on Global Climate Change
Posted on June 21, 2009The U.S. Global Change Research Program (USGCRP), which coordinates and integrates federal research on changes in the global environment and their implications for society, produced a report this report entitled, ?Global Climate Change Impacts in the United States...
Imposition of Scenic and Conservation Easement on Issuance of Natural Resources Permit Invalidated
Posted on June 21, 2009A New York appeals court upheld the invalidation of a scenic and conservation easement imposed by a Town as a condition to the issuance of a natural resources special permit. In annulling the condition, the Court agreed with the trial court that it was arbitrary and capricious, and the zoning board of appeals was ordered [...
Denial of Dunkin? Donuts Request to Renew Special Use Permit for Drive-Thru Window Upheld
Posted on June 20, 2009In 1986 the zoning board of appeals granted the petitioner a temporary special exception permit for five years to operate a drive-thru window subject to a number of conditions, including a condition that the drive-thru was to be maintained so as not to permit vehicle back-up onto nearby neighborhood roads...
Property Owner Lacked Standing to Challenge Historic Preservation District Ordinance Since it Had Not Been Applied to His Property
Posted on June 19, 2009David Gehl and DSG Evergreen (collectively, “Gehl”) appealed circuit court orders granting summary judgment to the Town Board of the Town of Perry and Board members in their individual capacity (collectively, “the Town”) and to Dane County and specified county officials (collectively, “Dane County”) and dismissing Gehl’s complaint in its entirety...
Applicant Not Entitled to Parking Waiver Due to Successive Application Doctrine
Posted on June 18, 2009In consolidated appeals, the Vermont Supreme Court held that the Environmental Court erred in conditionally approving a proposed ten-story mixed use building in the City of Burlington since the second application was not substantially changed from the first...
Municipality May Not Apply Requirements of Zoning Overlay District to Property Not In Its Territorial Jurisdiction
Posted on June 17, 2009Following an annexation by the Town of a 26-acre parcel owned by the appellants in 2004, the Town created an overlay zoning district requiring certain improvements along a state road that fronted the parcel. When the appellant sought a development permit and variance exempting the property from the required improvements for Phase I of their [...
First Amendment Retaliation Claims Dismissed After City Sought Removal of Critical Sign
Posted on June 16, 2009In 1994, Camastro was unsuccessful in his efforts in obtain a zoning variance to construct a four-bay car wash on his property. As a result, without obtaining a sign permit, he put a sign on his lot that read: “THE CITY OF WHEELING HAS CHEATED ME...
Denial of Area Variance Upheld as Board Properly Applied Statutory Test
Posted on June 15, 2009An appellate court upheld the zoning board’s denial of an area variance, finding that the board properly weighed the relevant statutory factors. The Court noted that the board determined that the requested variance would produce an undesirable change in the character of the neighborhood, that the variance was substantial, and that the alleged difficulty was [...
No Vested Rights in Electronic Sign Where Stipulated Judgment Prohibited Construction Eight Years Earlier
Posted on June 15, 2009In 1994, the Hallas constructed a retail sales building on their property without first obtaining a permit. Upon inspection, the City determined the building did not comply with building code requirements, and thereafter sought to enjoin the Hallas from operating their business in the new building...
Failure to Follow Statutory Procedures Invalidates Countywide Zoning Ordinance
Posted on June 14, 2009Following a decision by the County Commissioners enacting an ordinance regulating multi-family dwellings, the ordinance did not apply any rules to property located below 2,500 feet above sea level, The Partnership II brought an action for declaratory relief seeking to have the ordinance declared invalid alleging that the ordinance was adopted without compliance with statutory requirements...
Zoning Verification Letter Did Not Provide Property Owner with a Vested Right
Posted on June 13, 2009In suit for declaratory and injunctive relief on the theory that the landowner had a vested right to “by right” development of its land under a particular zoning classification, which precluded enforcement of revised zoning provisions requiring a special use permit, the Court noted that the applicable statute gave both the zoning administrator and the [...
Planning Board Properly Granted Waivers to Wal-Mart and Zoning Board Properly Granted Variances
Posted on June 12, 2009Where the Town Code provided, with respect to special uses, that “[a]ny of the following uses may be permitted upon obtaining a special use permit, provided such complies with all applicable dimensional and other requirements of this chapter?,” the Court said that this means that dimensional requirements could be satisfied after obtaining a variance, noting [...
State Building Code Preempts Local Ordinances
Posted on June 12, 2009An Ohio Appeals Court held that the State Constitution does not protect local ordinances requiring that homes built within the city have higher ceilings, and lower staircase slope than what was required by the 2005 state code enacted by the State Legislature...
APA Announces 2009 Planning Law Review
Posted on June 12, 2009The 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, 2009A 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, 2009An 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, 2009A 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 [...
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, 2009Peter 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, 2009Driehaus 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, 2009The 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, 2009Following 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, 2009After 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, 2009The 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, 2009Following 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, 2009The 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, 2009Virginia 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, 2009This 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, 2009As 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, 2009Following 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, 2009After 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, 2009While 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, 2009The 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, 2009The 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, 2009Governor 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, 2009The 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, 2009In 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, 2009The 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, 2009The 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, 2009A 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, 2009Following 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, 2009The 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, 2009An 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, 2009A 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...
NJ Supreme Court Tosses Local Residency Restrictions for Convicted Sex Offenders
Posted on May 18, 2009The New Jersey Supreme Court upheld the appellate court?s judgment striking down ordinances in Cherry Hill Township and Galloway Township that established residency restrictions that formed buffer zones for convicted sex offenders living within their communities...
Appeals Court Overturns Denial of Site Plan for Tractor Supply Store as Board?s Decision was Arbitrary, Capricious and Irrational Based on the Record
Posted on May 17, 2009The planning board denied petitioner’s application for a site plan approval on the grounds that the proposal includes impermissible sidewalk retail pursuant to the town’s zoning law. However, the Court found that the term “sidewalk retail” was not defined in the zoning law and concluded that its meaning is ambiguous...
California Supreme Court Upholds Use of Public Funds for Communications Addressing Merits of Ballot Measure
Posted on May 16, 2009Salinas residents proposed an initiative measure that would reduce and eventually repeal the city?s utility users tax. The city council adopted a budget listing the facilities that would be closed and programs and services that would be eliminated if the measure passed...
Nassau County (NY) Enacts Smart-Growth Requirements for Subdivision Developments
Posted on May 16, 2009The following is excerpted from a press release issued by Nassau County Executive Tom Suozzi. The new rules adopted by the County will streamline the development process and require developers to include plans for “smart” designs, expand public notice requirements for pending subdivision applications, and enact stricter penalties for developers who advertise or construct subdivision projects [...
Variance Denial for Rear-Yard Setback Upheld Where Board Applied Statutory Balancing Test
Posted on May 16, 2009An appeals court upheld the zoning board’s denial of an area variance for a rear-yard setback where the board engaged in the required statutory balancing test and considered the relevant statutory factors. Specifically, the Court determined that the Board’s findings that the requested variance was substantial, that it would produce an undesirable change in the [...
Appeals Court Dismisses Section 1983 Suit against Municipal Officials Alleging Eminent Domain Was Used in Retaliation
Posted on May 16, 2009In 1995, Sable purchased a parcel of property immediately north of a City public-works facility that included a fenced-in strip of land that had been the south half of a City street. Sable’s position was that the strip belonged to him through his predecessor’s in title adverse possession...
Condemnation Proceedings Not Preempted by National Housing Act Nor by Multifamily Assisted Housing Reform and Affordability Act
Posted on May 16, 2009The City sought to acquire, through eminent domain, an apartment complex that the City believed was so run-down that it constituted a public nuisance. New West, the partnership that owned the complex, had accepted a federal subsidy under §8 of the Housing Act of 1937 (providing federal rent subsidies for low-income tenants), and took out [...
Town?s Policy Requiring Notification to Civic Association as Part of Application Process Found Unconstitutional
Posted on May 15, 2009Justice Jeffrey Arlen Spinner, sitting in the New York State Supreme Court, Suffolk County, recently granted relief to Petitioners asking for court intervention to compel a Town to process a subdivision application. The application, which met all the requirements of the Code, did not require any variances and had been with the Town?s Planning Department [...
Cancellation of Development Deal by New City Administration Does Not Violate Developer?s Civil Rights
Posted on May 14, 2009The 6th U.S. Circuit Court of Appeals ruled a developer whose condominium project on land to be purchased from the city died after a new administration took office failed to establish any violation of its due process or equal protection rights. Beginning in December 2003, Taylor Acquisitions and Taylor, Mich...
Building Inspector Lacked Authority to Issue Permit for Fence Without Site Plan Approval
Posted on May 13, 2009After finding that the trial court incorrectly determined that the petitioner lacked standing to challenge the determination of the zoning board of appeals which, after a hearing, upheld the issuance of a building permit by the building inspector to allow the installation of a 48-foot by 20-foot fence for purposes of creating an impound lot, the appeals [...
Where Religious Order Fails to Follow Zoning Procedures RLUIPA Claim Not Yet Ripe
Posted on May 12, 2009Plaintiffs, a religious order recognized by the Catholic Church, has owned a house in a residential area of the Township since 2002 where several church leaders reside. In addition, the order holds regularly scheduled Bible study classes at the house during the week, and religious services also take place in a chapel in the home...
Demolition and Debris Processing Facility Allowed to Continue Without Special Use Permit
Posted on May 10, 2009While a municipality does have authority pursuant to its police powers to impose conditions on certain uses, even pre-existing nonconforming uses, for purposes of protecting the public health, safety and welfare, in this case, the town zoning ordinance did not in this case does not regulate the operation of construction and demolition debris facilities it [...
McDonald?s Litigation Reinstated after Appeals Court Determined That Failure to Join Necessary Parties Was Not Fatal
Posted on May 10, 2009Petitioners sought to annul the approval of various applications submitted by McDonald’s USA, LLC for the construction of a restaurant. The trial court dismissed the petition because the petitioners failed to name all of the owners of the subject property, these were necessary parties, and at that point in the proceeding, the statute of limitations [...
Court Awards Attorney Fees in RLUIPA Case Where Plaintiff Secured Injunctive Relief
Posted on May 09, 2009At issue was whether Layman Lessons was entitled to attorney fees and costs after prevailing in a RLUIPA action wherein it secured injunctive relief. Two weeks after filing its complaint the court entered an agreed order for an arrangement which provided that the City of Millersville was temporarily enjoined from enforcing against Layman Lessons a [...
Upcoming Affordable Housing Conference
Posted on May 08, 2009The National Housing Conference and the Center for Housing Policy are presenting a multi-day conference in Chicago June 28-30, 2009, Solutions for Working Families: 2009 Learning Conference on State and Local Housing Policy. The conference is designed for state and local leaders, planners, elected and appointed officials, housing and smart growth advocates, community development [...
Government Officials and Private Citizens May Not Be Sued in Their Personal Capacities for Alleged RLUIPA Violations
Posted on May 07, 2009The Plaintiff owned a series of properties collectively referred to as Moxley Farm, for which he had agreement to sell the land to the Ahmadiyya Movement of Islam, Inc., a corporation representing the Ahmadiyya Muslim Community (AMC). The AMC, founded in 1889, includes approximately 15,000 members and 45 mosques in the United States...
Prohibition of Churches Close to Urban Growth Boundary Violates Equal Terms Provision of RLUIPA
Posted on May 06, 2009The Oregon Land Use Board of Appeals determined that the County?s refusal to allow a dwelling to be used as a church or religious retreat center with overnight accommodations on land within three miles of the urban growth boundary on a parcel zoned exclusive farm use (EFU), violates the Equal Terms provision of the Religious [...
ABA CLE on the Religious Land Use and Institutionalized Persons Act (RLUIPA)
Posted on May 05, 2009On Wednesday, May 6, 2009, the ABA State and Local Government Law Section will be offering a teleconference/live audio CLE on the Religious Land Use and Institutionalized Persons Act (12:00PM - 1:30PM ET; 11:00AM - 12:30PM CT; 10:00AM - 11:30AM MT; 9:00AM - 10:30AM PT)...
IMLA Offers Teleconference CLE Series on Land Use Mondays
Posted on May 04, 2009The International Municipal Lawyers Association will be hosting a series of teleconference CLE programs for municipal attorneys on a range of issues of interest. The audio-conference series on land use, hosted by Professor Daniel Mandelker (Howard A...
Language of Noise Ordinance Unconstitutional as Impermissibly Vague
Posted on May 04, 2009After the owners of a club, located on the ground floor of a hotel in Virginia Beach, were repeatedly warned about sound levels resulting from music played by disc jockeys and occasional “live” entertainment groups, they were issued citations for violation of the City Code section dealing with noise...
Mandamus Cannot Lie Where Board Already Made a Decision on Conditional Use Permit
Posted on May 03, 2009Following the granting of a conditional use permit to allow a gravel pit operation on certain real property, Beasley purchased the property. The zoning administrator determined that the conditional use permit remains with the property, but when neighbors appealed, the zoning board denied the transfer of the permit to Beasley...
Sex Offender Residency Restrictions Remain Controversial Topic
Posted on May 03, 2009Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large?by one report there are some 550,000 registered sex offenders nationally...
Failure to Provide Proper Notice Requires Annulment of Use Variance
Posted on May 03, 2009Following a denial of a special use permit, the Zoning Board of Appeals granted the respondent a use variance to allow him to use property he inherited in an RA-40 zone (permitted uses are residential and agriculture) for mining purposes. Petitioners, neighboring property owners, challenged the variance on the grounds that they did not receive [...
Property Owners Failed to Timely Raise Objection to Planned Unit Development Classification in Conditional Use Permit Proceeding
Posted on May 02, 2009The Saint Louis County Planning Commission granted a conditional use permit to Big Lake Properties for the conversion of an existing resort into a common interest community, as well as approving 11 new cabins to the resort already consisting of 13 cabins and a 3,418-square-foot lodge on 23 acres...
Variance Required to Add Second Floor to Nonconforming Building Even Where No Changes Are Required to Existing Footprint
Posted on May 01, 2009The zoning board of appeals denied Moon?s variance application to enable her to add a second floor to an existing nonconforming building without altering or expanding the existing footprint of the building. The Board found that the proposed expansion would not be in harmony with the surrounding neighborhood and that Moon had failed to establish [...
Gas Wells Not Exempt from Local Zoning in Pennsylvania
Posted on April 30, 2009The Pennsylvania Supreme Court concluded that a local zoning ordinance requiring a conditional use permit for extraction of minerals that was applied to a application for the drilling of gas wells, was not preempted by the State Oil and Gas Act (58 P...
Use Variance for Parking Lot in Residential District Upheld
Posted on April 30, 2009Following the granting of a use variance to convert a parcel in a primarily residential zoning district into a commercial parking lot, neighbors appealed. Although they waited until after the parking lot was completed, the Court noted at the outset that this did not moot the petitioner’s appeal...
Board May Hire Outside Consultant and Require Applicant to Pay Fee, But Board May Not Succumb to Community Pressure in Application Review
Posted on April 29, 2009A New York Appellate Court reaffirmed that a Town Board, when reviewing a complex and difficult application, has the discretion to hire an outside consultant and require the applicant to pay the consultant?s fee. The Town Code authorized the action when the Board determines that the ?complexity of the activity, the difficulty on determining [...
Growth Management Reform Proposals Moving Through Florida Legislature
Posted on April 29, 2009Florida Department of Community Affairs Secretary Tom Pelham has issued a press release this week raising concerns over the House and Senate growth management bills. The following is from the release: Last week, the House voted in favor of HB/CS/CS/SB360, which substantially revised SB360...
No RLUIPA Violation Where Board Denied Conditional Use Permit for Operation of a Church on Main Street Where it Would Inhibit Development
Posted on April 28, 2009The church began leasing half of a former movie theater in 2004 and, because its use of the site was limited, requested that a real estate agent locate property to accommodate planned growth from its existing 200 to 250 members to 400 members. The real estate agent did not consider undeveloped land, buildings that [...
Animal Hospice Was Not an Accessory Use nor was it Entitled to Nonconforming Use Status
Posted on April 27, 2009The petitioners own and operate out of their home in a residential district ?Angels? Gate,? a hospice and rehabilitation center for approximately 200 terminally ill and disabled animals. Following the issuance of a notice of violation, the petitioners applied to the zoning board of appeals for a certification of existing use on the ground that [...
No Standing to Challenge Amendment to Comprehensive Plan
Posted on April 26, 2009Relying on a decision from last year, the Idaho Supreme Court reiterated that since an amendment to a county comprehensive plan is not the same as a permit authorizing development, the parties challenging the amendment lacked standing to do so since they do not qualify as an ?affected person? under I...
22 Shih Tzus are Too Many Pets for One Household in a Residential District
Posted on April 25, 2009The Connecticut Court of Appeals upheld the denial of a special use permit by the West Hartford Plan and Zoning Commission forcing the Plaintiff to down-size from 22 Shih Tzu pet dogs to three. Since the zoning ordinance requires residents owning more than two dogs to apply for a special use permit, and Kilburn [...
Record Did Not Support Claim by Coastal Commission that Denial of Permit in Environmentally Sensitive Area Would Be Taking
Posted on April 24, 2009The California Court of Appeal (6th Dist.) ruled the California Coastal Commission?s defense of its issuance of a permit allowing construction of a house in an environmentally sensitive habitat area on the ground failure to issue the permit would have been a compensable taking was not supported by substantial evidence in the record...
CT Appeals Court Dismisses Challenge to Special Use Permit and Site Plan Approvals Due to Lack of Standing
Posted on April 23, 2009Following conditional approvals of a special exception and site plan to expand an existing campground currently consisting of 480 sites, the plaintiffs unsuccessfully appealed the decision to the zoning commission and then to the superior court. The plaintiffs alleged in their complaint that they were ?statutorily or classically aggrieved by the decisions of the [...
No Fair Housing Act Amendment Violation Where Township Did Not Discriminate and Applicant Failed to Prove Accommodation was Reasonable and Necessary
Posted on April 22, 2009Haven Chemical Health Systems purchased a six-bedroom, four-bath house in a district zoned rural residential intending to use the house as a residential treatment facility for 10 chemically dependent people. Although the Township zoning code only allows a state-licensed residential facility to serve six or fewer individuals, Haven argued that there is a therapeutic benefit [...
Board May Not Rely on Draft Plan as Basis for Denial of Special Use Permit
Posted on April 21, 2009The Town Board impermissibly denied an application for a special use permit to allow a single-family residence in a J2 Business District on the basis that a draft revitalization plan existed for the area since the plan had not been adopted and it was uncertain whether it would ever be adopted...
Private Land Use Agreement Between Developer and Neighborhood Groups Is Enforceable
Posted on April 20, 2009With sparse court attention to the subject of community benefits agreements (CBA), a recent opinion by a New York appellate court is a positive signal regarding the enforceability of the private agreements regarding land development. The contract at issue, however, is not a CBA (for more information on CBAs click here)...
Fourth Circuit Says Sign Ordinances Need Not Include Explicit Statement of Governmental Purpose and Upholds Ordinance as Content-Neutral
Posted on April 19, 2009Prior to October 2006, the Town of Surfside Beach had an ordinance that required the issuance of permits before most on- or off-premises signs could be constructed. The ordinance treated all off-premises signs as billboards, which could be placed only on vacant lots within a designated area (a ?C-1 highway commercial? zone)...
RLUIPA Defense to Zoning Enforcement Action Not Enough to Remove Case to Federal Court
Posted on April 18, 2009The Sahag-Mesrob Armenian Christian School failed to secure a required conditional use permit prior to opening the school. After City enforcement actions against the school were unsuccessful, the commenced the present legal action in state court for nuisance abatement to enjoin the unlawful operation of the school...
International Building Code Does Not Violate the Constitution
Posted on April 17, 2009The 11th Circuit Court of Appeals, in affirming a dismissal of a pro se civil rights complaint, agreed that the complaint against the City Commission and its commissioners, a staff member of the department of transportation and a developer failed to state a claim for which relief could be granted...
Where Ordinance Allows Apartment Buildings, Condominium Units Are Also Permitted Unless Specifically Excluded
Posted on April 16, 2009A developer asked the county to rezone a portion of land from ?A1? (Agricultural 1) to ?CD-R1? (Community Development ? Single-Family Residential). The Board of Supervisors (the ?Board?) approved the request and also granted the developer a special use permit for condominium development on the land...
Appellate Court Dismisses Current Round of Ongoing Litigation over Atlantic Yards Redevelopment
Posted on April 15, 2009In February, a New York appellate court affirmed the dismissal of complaint challenging the Atlantic Yards redevelopment project. Specifically, among other things, the Court upheld as reasonable the Urban Development Corporation?s blight designation for the project area and it found that the project qualified as a ?civic project...
Historic District Commission?s Permit Denial Not Taking Since Action Did Not Deny Owner All Economically Viable Use of the Property
Posted on April 14, 2009Plaintiffs own an 8.5-acre parcel of vacant land in Carver?s Savery Avenue Historic District. The parcel is divided into four lots. Savery Avenue, built in 1861 with funds provided by a local industrialist, is a tree-lined roadway, believed by residents to be the first divided highway in the United States...
North Dakota Supreme Court Explains Contract Zoning Without Passing on its Legality
Posted on April 13, 2009The North Dakota Supreme Court has never ruled on the legality of contract zoning, and they found no reason to do so recently since they found no evidence of it in the case presented. The Court explained that contract zoning is present where a local government ?contracts away its zoning power or obligates itself by [...
Constitutionality of County Adult Business Ordinance Upheld and Court Finds Ordinance Neither Overbroad nor Vague
Posted on April 12, 2009An adult business ordinance adopted in 2008 was challenged as unconstitutional by the operators of Enlightened Reading, Inc., d/b/a Erotic City, which sold novelties, lingerie, and merchandise that contained sexually explicit material. The original ordinance was repealed and replaced by Ordinance No...
Four-Year Wait to Challenge Zoning Board Determination is Time-Barred
Posted on April 11, 2009An appellate court in New York held that where the village zoning board of appeals granted a set-back variance in June of 2003 and the adjacent property owners waited until September of 2007 to challenge the board?s action, the challenge was time-barred...
Court Must Decide If Public Purpose Claimed for Road Was Pretextual
Posted on April 10, 2009The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county?s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged In the late 1990s, the Hawaii County Council executed a development agreement with [...
California Appeals Court Reminds Cities Must Decide ?Public Use? Before Condemnation
Posted on April 09, 2009When the California Court of Appeal began its February opinion with the statement, ?This is a case of ?condemn first, decide what to do with the property later,?? the outcome was pretty clear. In 2003, the city of Stockton adopted a ?resolution of necessity? for the condemnation of two parcels owned by Marina Towers, LLC...
Federal Telecommunications Act Preempts Local Wireless Ordinance That Is Based On Technological Preference
Posted on April 08, 2009Judge William Young, sitting by designation in the Southern District of New York, held on March 26, 2009, that the Town of Clarkstown?s (?Town?) wireless communications zoning ordinance was unconstitutional. In New York SMSA Limited Partnership d/b/a Verizon Wireless v...
Special State Commission May Constitutionally Develop Comprehensive Plan and Zoning Regulations for Area Under its Jurisdiction
Posted on April 07, 2009The Oklahoma Supreme Court found that it was not an unconstitutional delegation of legislative power where appointive members of a Commission created to establish land use plan for the state capitol and hospital complex adopted a comprehensive plan and zoning regulations...
Zoning Ordinance Unconstitutionally Vague Where It Lacked Standards to Distinguish ?Front Yard? and ?Side Yard? for Purposes of Setback Requirements
Posted on April 06, 2009Plaintiffs’ removed a barn on their property and constructed a quonset hut on the barn’s foundations. The property is in the southwest corner lot at the intersection of Highwood and Hay Roads. Their residence faces Highwood Road to the north...
Zoning Board?s Denial of Natural Resources Special Use Permit and Area Variances Upheld
Posted on April 05, 2009The zoning board?s denial of an application for a natural resources special use permit and three area variances was upheld where the record supported a finding that the Board considered all of the relevant factors enumerated in Town Law §267-b(3)(b). Further, although the applicant alleged that the denial was irrational because it failed to comply [...
Landowners Not Entitled to 8-Year Zoning Freeze for Proposed Subdivision on Martha?s Vineyard For Failure to Timely Commence Action
Posted on April 04, 2009The Supreme Judicial Court of Massachusetts found that the trustees of two parcels of land on Martha?s Vineyard were not entitled to an 8-year zoning freeze for a proposed subdivision after inaction by the town planning board resulted in approval since the town clerk did not issue a certificate to memorialize the final approval of [...
NY District Court Holds that NYC May Enforce its Arterial Highway Advertising Ban
Posted on April 03, 2009Plaintiffs challenged sections of the City?s Zoning Resolution and Administrative Code governing off-site advertising signs which provide that within 200 feet of an arterial highway, no permitted sign may be larger than 500 square feet and no advertising sign shall be allowed at all...
City?s Historic Designation of Apartment Building Owned by Church Does Not Constitute a Substantial Burden Under RLUIPA
Posted on April 02, 2009In a 9-page order issued yesterday, the United States District Court for the Central District of Illinois rejected a church’s RLUIPA (Religious Land Use and Institutionalized Persons Act) challenge to the City of Peoria’s decision to landmark an historic apartment building, and the city’s refusal to allow the church to demolish the building...
New York Climate Change Report Card: Improvement Needed for More Effective Leadership and Overall Coordination with Local Government
Posted on April 02, 2009Last month the University of Colorado School of Law and the Leeds School of Business hosted the Elevate 2009:Climate Change and the New Frontiers of Urban Development conference. Organized by Professors Nestor Davidson and William Shutkin, the program brought together thought leaders from across the country, to offer an interdisciplinary array of papers and presentations...
Denial of Zoning Amendment Constituted Reverse Spot Zoning
Posted on April 01, 2009Petitioner sought a zoning change for a parcel of undeveloped property in southwest Miami-Dade County from AU (agricultural zoning permitting one residence per five acres) to EU-1 (estate zoning permitting one residence per one acre). The Miami-Dade County Commission denied the zoning change and the circuit court appellate division, on first-tier certiorari review, upheld the decision of the [...
Use Variance to Allow Mixed Use Development for Student Housing, Residential Uses, Hotel and Commercial Uses Upheld
Posted on March 31, 2009Following the approval of a use variance application to allow the use of two parcels in an M-1 light industrial district for a mixed use development project that will include student housing, other residential uses, a hotel, and commercial uses, petitioners appealed seeking to annul the variances...
Colorado Appeals Court Concludes that Fire Protection District Is Exempt from the State?s PUD Act and Local Zoning
Posted on March 30, 2009The Hygiene Fire Protection District (the ?District?) wanted to build a second fire station within its service area in the county. The District planned to purchase land (the ?Land?) in a planned unit development (?PUD?) and to construct a fire station on the Land (the ?Project?)...
Ninth Circuit Court of Appeals Upholds California?s Outdoor Advertising Act Onsite/Offsite Distinction as Neither Vague Nor Overbroad
Posted on March 29, 2009As a consequence of an amendment in 2008, the California Outdoor Advertising Act bars offsite commercial advertising, but does not restrict non-commercial speech. The plaintiff, Maldonado, had a long-running dispute with the California Department of Transportation (Caltrans) over the use of a billboard on his property, adjacent to U...
RI Supreme Court Opines that Legislators May Not Sit on Coastal Resources Council Nor May They Appoint Members
Posted on March 28, 2009At the request of the Honorable House of Representatives of the State of Rhode Island and Providence Plantations, four of the justices of the Supreme Court rendered an advisory opinion on pending legislation concerning the reenactment of the organic statute of the Coastal Resources Management Council (CRMC)...
Wal-Mart Supercenter Site Plan Approval Upheld
Posted on March 27, 2009After concluding that the petitioner, Residents Against Wal-Mart, had standing to sue because they met their burden of demonstrating that at least one of its members had standing and that it is representative of the organizational purposes it asserts, the Court found that the owners of the property on which the project would be located [...
Court Finds City Failed to Prove Transient Use Constituted a Violation of Zoning Resolution
Posted on March 27, 2009An appeals court overturned a preliminary injunction against three residential buildings in the Upper West Side of New York City that had ordered them to stop using the SROs (single room occupancy) as transient hotels. The Court determined that the City did not show if would ultimately success in proving that the transient use actually [...
RLUIPA Does not Apply to AA Meetings as They Are Not a Religious Exercise
Posted on March 26, 2009Gordon owned an office building zoned in the Special Commercial District (SC), which allowed for an F-1 office use (?primarily office functions in nature?). The Glenside Center signed a lease with Gordon for a portion of his building, intending to use the premises for holding group meetings for members of Alcoholics Anonymous (AA), Narcotics Anonymous [...
US Chamber of Commerce Launches ?Project No Project? Site for Anti-NIMBY Information
Posted on March 25, 2009The following description appears on a site, launched by the US Chamber of Commerce to fight NIMBY experiences with respect to green power/projects. One of the promises in the development and deployment of new energy technologies is the creation of ?green jobs,? and it is a promise we embrace...
Mississippi Governor vetoes eminent domain reform legislation
Posted on March 25, 2009Mississippi Governor Haley Barbour vetoed eminent domain reform legislation yesterday after it was passed with strong support from both houses of the state legislature. Today, the Mississippi House voted 101 to 19 to override the veto, but the Senate has yet to weigh in...
Missouri Supreme Court Orders Bond Developer Posted to be Disbursed After Breach
Posted on March 24, 2009In developing the Winter Valley subdivision in Jefferson County, Essex Contracting Inc. agreed to adhere to the county?s subdivision regulations, which required Essex to post three separate bonds totaling nearly $3.6 million so it could work on all three phases of construction before the final plat was approved...
Upcoming National Planning Conference Offers Outstanding Legal Sessions
Posted on March 24, 2009Although I routinely provide links for upcoming land use law conferences on a page on this site, I don?t regularly promote specific programs. However, this year the American Planning Association has put together a comprehensive program for Minneapolis that lawyers and planners should consider attending...
Second Appellate Court in New York Upholds Determination that a Wind Farm in a Public Utility
Posted on March 23, 2009Last year the Appellate Division, Third Department upheld a determination that a wind farm qualifies as a public utility. Last week, the Fourth Department held that the zoning board?s classification of a series of wind-powered generators as a utility was neither irrational nor unreasonable, and that such determination was supported by substantial evidence...
Board?s Failure to Follow its Own Precedent Results in Reversal
Posted on March 22, 2009The petitioner/plaintiff was granted a building permit to construct a six-story condominium building. Subsequent, a ?10-day notice to revoke? was issued after the building department alleged that the work was not being done in accordance with the petitioner?s certified plans...
PA Supreme Court Finds Ordinance Restricting Size of Billboards Amounts to a De Facto Exclusion
Posted on March 21, 2009Land Displays, Inc. (?LDI?),in the business of outdoor advertising, erected billboards on real estate that it leased. Between 2003 and 2005, LDI submitted applications to the township for permits to erect billboards on several parcels of property located in the commercial or industrial zoning districts of the township...
Second Circuit Finds No Vested Right Accrues in Special Use Permit Absent Substantial Construction
Posted on March 20, 2009The second circuit affirmed a decision of the Southern District of New York finding that the Plaintiffs procedural due process rights were not violated when the zoning ordinance changed preventing them from constructing a senior-citizens dwelling. Although the plaintiffs alleged that they had secured a special use permit, the Circuit Court concluded that vested rights [...
Municipal Regulation of Formula Businesses: Creating and Protecting Businesses
Posted on March 19, 2009Below is an abstract of an article I just posted on SSRN on using land use regulations to address forumla and big box businesses. People have been trying to exclude chain stores from their communities for decades. This includes “big-box” chains-the behemoth retailers that prefer an architecture of rectangular, single-story unadorned structures reaching 200,000 square feet [...
County Violated Telecommunications Act Where Denial Was Not in Writing and Not Supported by Substantial Evidence
Posted on March 19, 2009A licensed provider of wireless communication services and the owners of land leased to the provider for a cell phone tower challenged a planning commission?s denial of their application to construct a cell phone tower. The commission claimed the application was denied due to the visual impact of the tower and fact that the land [...
Rezoning Amounted to Illegal Spot Zoning for Failure to Comply with Master Plan
Posted on March 18, 2009The developer, owner of a parcel of undeveloped land located in a C-1 Neighborhood Commercial Zone, filed a site plan application to construct a professional and two retail buildings on its site. Although the application complied with the requirements of the C-1 Zone, residents asked the township council to rezone the property to Office Professional [...
RI Supreme Court Allows Allegation of Irregularities in Adoption of Zoning Amendments to Proceed
Posted on March 17, 2009Following the purchase of a 65 acre parcel of land in 2005, the Plaintiff sought to subdivide it and discovered that that in 1998 the Town had adopted new zoning ordinance, including comprehensive amendments to the zoning ordinance text and map, which in effect decreased the number of buildable lots within the Plaintiff?s property...
Court Orders Removal of House in Historic District for Failure to Comply with Setback Requirements
Posted on March 16, 2009The Montana Supreme Court ruled that a Virginia City home owner must remove a new house that violates setback requirements. This saga began 10 years ago when the owner of a property in the historic district applied for zoning and development permits to build a house...
Referendum Regarding Rezoning Fails For Failure for Lack of Specificity
Posted on March 15, 2009Following a rezoning of certain property at the request of a developer, a community group, ?Save Our Small Town,? submitted a referendum to the Town Clerk for the ballot. Following state statute which requires that the referendum petition describe in one hundred words or less the ?principal provisions of the measure,? the petition described the [...
NYS DEC Releases for Comment Draft Guide for Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements
Posted on March 14, 2009This week the NYS Department of Environmental Conservation released for comment a Guide for Assessing Energy Use and Greenhouse Gas Emissions in an Environmental Impact Statement. The proposed policy provides instructions to DEC staff for reviewing an environmental impact statement (EIS) that includes a discussion of energy use or greenhouse gas (GHG) emissions...
General Permit Proposed for Small-Scale Wind Turbines in Adirondack Park
Posted on March 14, 2009At a meeting this week of the Adirondack Park Agency, a staff proposal was presented that would allow for a streamlined and expedited process for the siting of small-scale residential and commercial wind turbines up to a height of 125-feet within the six-million acre park...
Second Circuit Denies Due Process Claim Because of Lack of Property Interest in Erroneously Granted Building Permit
Posted on March 13, 2009Plaintiffs alleged that actions taken by zoning board of appeals and the village board of trustees in connection with Plaintiffs’ residential building permit violated their civil rights. Plaintiffs owned a one family home and decided to add a rear addition to be used as a family room that would result in the house covering 26% [...
Mayor Who Owns Title Company Disqualified from Reviewing Application of Former Client
Posted on March 11, 2009The Plaintiff, with encouragement from municipal officers, accumulated land for purposes of developing a new town center. The proposal for the new town center was met with opposition and a long history of litigation beginning in 2001. In 2004, the town adopted an ordinance for an adult active community as well as a new Master [...
Municipalities Preempted From Prohibiting Manufactured or Mobile Homes of a Certain Age
Posted on March 10, 2009In 2001, the County of Pasquotank adopted an amendment to its manufactured/mobile home units ordinance to provide that, ?[m]anufactured homes must have a an attached HUD label and shall not be more than ten(10) years old on the date of application for a building permit for the purpose of permanent set-up...
Takings Claim Dismissed by Third Court of Appeals on Ripeness Grounds
Posted on March 09, 2009Carroll entered into an agreement with the Township of Mt. Laurel to sell them approximately 14 acres of land he owns. The agreement was never consummated because Carroll was unable to satisfy a condition of sale (he needed a Letter of Interpretation from the State Department of Environmental Protection that showed ?no greater degree of [...
Township Acted Appropriately in Appointing Special Solicitor to Avoid Conflicts of Interest
Posted on March 08, 2009The applicant, a corporation seeking to construct a housing complex for the elderly in an area designated ?high density residential,? was denied a application for a condition permit because the proposal did not include the required amenities for such a complex, nor did it address the traffic and access issues associated with housing for the [...
Permit to Construct Chicken House Invalidated for Failure to Provide Proper Notice
Posted on March 08, 2009Following the granting of a conditional use permit for a chicken house, a neighbor challenged the approval on the grounds that the County failed to follow the statutory notice provisions for the required public hearing. Specifically. OCGA §36-66-4(a) provides that notice for public hearings on conditional use permits be published, ?[a]t least 15 but not [...
Developers Not Entitled To Vested Rights After Property Rezoned
Posted on March 07, 2009In considering whether developers obtained a vested right to a commercial use of their property under Code § 15.2-2307 as a result of proffers they made to obtain approval of a rezoning application, the Virginia Supreme Court concluded that the circuit court erred in affirming a board of zoning appeals’ ruling that the developers had [...
No Prohibited Conflicts of Interest for Zoning Board Members With Respect to Project Developer
Posted on March 06, 2009Trash, Rubbish, Junk and Junk Automobiles Constitute a Nuisance that Must be Abated
Posted on March 05, 2009E-Mail Received After Close of Public Hearing Could Be Considered Since it Contained No New Evidence
Posted on March 03, 2009General Plan of Development Upheld as Non-Binding on All Interested Parties
Posted on March 02, 2009Planning Board Appropriately Considered Resubdivision Potential of All Lots in Proposed Subdivision
Posted on March 01, 2009DOJ Settles Suit Alleging Zoning Discrimination By Nashville Against Faith-Based Substance Abuse Program
Posted on February 28, 2009Third Circuit Court of Appeals Finds Developer Has Standing as Option Holder to Challenge Zoning Restrictions
Posted on February 27, 2009Utah Supreme Court Holds Appeal Period Begins to Run From Date of Notice Not Date of Permit Issuance
Posted on February 26, 2009The Utah Supreme Court held that an appeal period begins to run from the date when an aggrieved party has actual or constructive notice of permit issuance and not the date of permit issuance. Following Park City’s approval of a building permit on July 14, 2005 the developer began construction of the project several months [...
Appeal of Conditional Site Plan Approval Time Barred
Posted on February 26, 2009In response to an effort to dismiss its petition as being outside the 30-day statute of limitations applicable to review of Planning Board approvals of site plans, the petitioner asserted that the Town Board acted without jurisdiction and beyond the scope of its authority when it imposed a condition related to the location of an [...
Sixth Circuit Finds County Licensing Scheme for Sexually-Oriented Businesses Ordinance Constitutional
Posted on February 25, 2009The Plaintiffs, owners of three adult entertainment businesses, challenged the constitutionality of a Knox County (TN) ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. The district court granted summary judgment for the County(with a minor exception - the court ordered the severance of two crimes, ?racketeering? and ?dealing in controlled substances,? from the [...
Water Tank Does Not Constitute a Private Nuisance
Posted on February 24, 2009Town?s construction of a water tank 30 foot-high and 35 feet in diameter on an adjacent parcel does not constitute a private nuisance. A private nuisance is an intentional interference with a person?s right to use and enjoy his or her property that is ?substantial in nature? and ?unreasonable in character?...
City Department of Investigation May Issue Subpoena to Private Citizen Where Letter Read Into the Record May Have Been Altered
Posted on February 24, 2009A New York Appellate Court upheld the City of New York Department of Investigation?s authority to subpoena private citizens during an investigation regarding a public hearing before the City Landmarks Commission. During a hearing, it was alleged that a member of a community group read a letter from the Borough President into the record, but [...
New York Court of Appeals Upholds Condemnation of Farmland
Posted on February 23, 2009Last month, New York?s high court heard oral arguments in an interesting case involving the condemnation of land as part of the Town?s farmland preservation program. In a short memorandum opinion issued last week, the Court said upheld the condemnation without addressing the Plaintiff?s Kelo argument, finding that the challenged taking was constitutionally proper even [...
NYC Conflicts of Interest Board Report Reveals Violations of Ethical Conduct in Various Land Use Related Matters
Posted on February 22, 2009I recently came across a very interesting enforcement report from the NYC Conflicts of Interest Board which summarizes enforcement cases through February 10, 2009. While these matters are of course unique to application of the NYC Conflict of Interest Law contained in Chapter 68 of the City Charter, the scenarios serve as good reminders concerning [...
US DOJ Argues District Court Erred in Dismissing Mezuzah Fair Housing Suit
Posted on February 21, 2009Back in July 2008, I reported that the Seventh Circuit held that neither RLUIPA nor the Fair Housing Act applies to regulations adopted by a private condominium association that prohibits the posting of a mezuzah on a doorpost (click here). According to the latest issue of Religious Freedom in Focus (January/February 2009) published by the [...
Commercial Parking Lot in Residential District Upheld as Legal Preexisting Nonconforming Use
Posted on February 21, 2009The Respondent owned real property located partially in a Neighborhood Business District and partially in a Residence Two-Acre District. The property was used for commercial parking. Subsequent to the use, the Town amended its zoning ordinance which provides that that parking for nonresidential use may not be located in any residence district...
DEC Commissioner Designates Town Board as Lead Agency For Project Adjacent to DEC Owned and Maintained Park
Posted on February 20, 2009In a SEQR lead agency dispute between the Town of Forestburgh Town Board and the NYSDEC’s Regional Office, NYSDEC Commissioner Alexander Grannis designated the Town Board as lead agency for the proposed Lost Lake Resort, a 2,600 home resort development in Sullivan County, New York...
Appeal of Special Use Permit Denial Dismissed for Improper Service
Posted on February 20, 2009Following a denial of a special use permit by the zoning board of appeals for the operation of a sand and gravel mine, the petitioner appealed, but failed to properly serve notice upon the municipality. Service was made on the Village of Fredonia rather than the Town of Pomfret, and although a Village employee delivered [...
In Important Climate Change Case NY Appeals Court Upholds Denial of Site Plan Based On Significant Increase of Air Emissions
Posted on February 19, 2009Laidlaw Energy and Environmental, Inc. acquired a lumber drying kiln and natural gas fired cogeneration electric power plant in the Town of Ellicottville. Shortly after its purchase, the facility was shut down. According to its owner, this was due to the inability to generate electricity profitability due to the rising price of natural gas...
Planning Board Member?s Personal Relationship with Engineering Firm Principal Creates a Prohibited Conflict-of-Interest
Posted on February 18, 2009For the past ten years. the Chairwoman (Roberts) of the City Planning Board has lived with, and owns a home together with, the principal of the engineering firm that employs the contracted for services of the planning board engineer. The Board?s annual contract for engineering services with the engineer acknowledges the relationship of the engineer [...
NYS DEC Launches Climate Smart Communities Initiative
Posted on February 18, 2009The NYS Department of Environmental Conservation announced the Climate Smart Communities Program, a state and local partnership designed to encourage climate protection. The agency is promoting a voluntary Climate Smart Community Pledge that can be adopted through a local resolution (a model is provided on the site)...
Utah Supreme Court Holds County Must Hold Referendum Before Allowing Planned Resort Development to Proceed
Posted on February 17, 2009The Utah Supreme Court found that since residents gathered enough signatures to require a referendum on the County’s 2007 agreement with a developer for a proposed $3.5 million gated club with recreational and residential uses, the county must schedule the vote before it may allow the development to proceed...
NJ Supreme Court Smells a Rat ? Balloon Prohibition Violates First Amendment
Posted on February 16, 2009A Lawrence Township ordinance prohibited all but a few signs, and it expressly prohibited ?banners, pennants, streamers … portable signs, balloons or other inflated signs (except grand opening signs).? In 2005, members of the International Brotherhood of Electrical Workers, Local 269, were protesting at Gold?s Gym in the Township because of a labor dispute with [...
1st Circuit Court of Appeals Upholds Dismissal of Takings Claims Pending Decision from FERC on License Termination
Posted on February 15, 2009Lichoulas owned or served as trustee for five parcels of land that were taken by eminent domain by the City of Lowell in 2006. A hydroelectric power facility was located on the property pursuant to a 1986 license granted by the Federal Energy Regulatory Commission (FERC)...
Bar Association Task Force on Global Warming Issues Report
Posted on February 14, 2009New York State Bar Association President Bernice Leber created a special Task Force on Global Warming to review and summarize New York?s existing laws and programs (taking into account the existing and pending federal laws and local initiatives) regarding climate change, and to make specific proposals that the State can implement in a timely and cost-effective [...
Court Upholds Use of Eminent Domain for Wind Energy and Finds That Ethics Allegation Was Procedurally Flawed
Posted on February 13, 2009Following a condemnation of a portion of the petitioners? property by the Town Board to create easements to enable the placement of underground electricity lines for a wind farm project, the petitioners challenged the action alleging that the Town Supervisor, who cast the deciding vote on both the resolution commencing the condemnation proceedings and the [...
Chicago Landmarks Ordinance Unconstitutionally Vague, Ambiguous and Overbroad
Posted on February 12, 2009Among other things, the Chicago Landmark Ordinance establishes a Commission to engage in various activities to protect and encourage the continued utilization of areas, districts, structures and buildings that are eligible for designation as a Chicago Landmark...
City Zoning Code Does Not Reach Cyberspace: Adult Activities Inside Residence Broadcast Over the Internet Immune from Zoning Regulations
Posted on February 11, 2009Following a ruling in June holding that the Plaintiffs, Flava Works, had standing to challenge the application of the zoning ordinance of the City of Miami to its virtual adult use, the District Court granted the plaintiffs summary judgment. Flava Works operates CocoDorm...
Reasonableness of Amortization Period Requires Fact Specific Inquiry
Posted on February 10, 2009In 1994, the Plaintiff acquired property that included an asphalt plant that had been in existence since 1945. In 1985, the Village Board of Trustees amended the zoning code making the use of the property for an asphalt plant nonconforming. In 2000, the Board of Trustees adopted a local law to amortize the nonconforming asphalt [...
State Regulation of Sign with Religious Message May Violate First Amendment
Posted on February 09, 2009A federal district court issued a preliminary injunction allowing a sign with a religious message to continue to be located on private property along a state highway. The Plaintiff, Daniel Burritt, operates a bridge building business which he named ?Acts I Construction, Inc...
NYSDEC Designates Town Board and Not Planning Board as Lead Agency for Waste-to-Energy Facility
Posted on February 08, 2009In a lead agency dispute between the Town of Montgomery Town Board and Planning Board, NYSDEC Commissioner Alexander Grannis designated the Town Board as SEQR lead agency for a proposed waste-to-energy facility. Taylor Holdings Group (Taylor) currently operates a construction and demolition debris processing facility in the Town of Montgomery...
Sixth Circuit Court of Appeals Finds Mayor Acted with Malice Intent and Violated Substantive Due Process
Posted on February 07, 2009Joseph Dorr purchased a home next to Larry Salisbury, who was later elected Mayor of the City of Escorse. Dorr?s home was a 90-year old building in need of repair and was considered a legal nonconforming use. He obtained approvals and permit from the City to make significant repairs and improvements to bring the home [...
CA Appeals Court Holds Contract Allowing Waiver of Recording of Final Map Void
Posted on February 06, 2009The California Court of Appeal has held that a real estate contract that allowed the buyer to waive the recordation of a final map before purchasing a portion of a legal lot violated the Subdivision Map Act and was therefore void at its inception. Sixells entered into a contract to purchase four acres of land [...
CT Appeals Court Upholds Zoning Board?s Approval of Coastal Site Plan Review and Variance Application
Posted on February 05, 2009Property owned by the Holts was located in a coastal area management overlay district (”coastal zone”) and a flood hazard overlay district (”flood zone”). The Holts wanted to raze the existing house on the property and construct a new one...
Wind Turbine Law Invalidated for Failure to Comply with SEQRA
Posted on February 04, 2009In November, I posted a case where the court invalidated the Town of Centerville?s local law on wind turbine siting for failure to take the required hard look under the State Environmental Quality Review Act. In a similar case, the Monroe County Supreme Court has invalidated the Town of Hamlin (NY) wind turbine law due [...
W. Va. Supreme Court Invalidates Zoning Ordinance Not Adopted Pursuant to Comprehensive Plan
Posted on February 03, 2009In a case hinging on statutory interpretation, the West Virginia Supreme Court traces the legislative history of the planning and zoning enabling acts in the State from the initial enactment in 1931 with changes made in 1959, 1969, 1973 and 2004 with respect to the requirements related to the comprehensive plan and zoning...
PA Appeals Court Holds No Federal and State Preemption by Zoning Hearing Board Conditions on Special Use Permit for Kennel
Posted on February 02, 2009Following the challenge to the imposition of eight conditions (out of 28 ) on a special use permit to allow the operation of a kennel, the appeals court agreed with the trial court?s determination that the conditions were not preempted by the federal Animal Welfare Act (AWA) nor by the State Domestic Animal Law...
Discussion of Model Statute on Local Land Use Planning Procedures
Posted on February 02, 2009Last August, the American Bar Association adopted a Model Statute on Local Land Use Planning Procedures. The description of the model statute and its content can be accessed here. Professor Daniel Mandelker of Washington University School of Law in St...
Revocation of Sign Permit and Denial of Area Variance for Sign Upheld
Posted on February 01, 2009After the building inspector issued a permit for a sign in a residential district allowing a lawn sign to advertise the petitioners? real estate business that was operated out of their home, he revoked the permit and ordered the sign removed upon determining that the sign did not comply with the Town?s Sign and Illumination [...
Zoning Board?s Denial of Area Variances Upheld as Rational and Supported by Evidence in the Record
Posted on January 31, 2009An appellate court upheld the zoning board?s denial of requested area variances finding that the Board properly weighted the five statutory factors set forth in Town Law 267-b. Specifically, with respect to the issue of whether the requested variances would cause an undesirable change in the character of the community or have an adverse impact [...
Individual Petitioners Had Standing to Challenge Local Law Allowing for Mixed Use Buildings
Posted on January 30, 2009In 2006 the Town of Huntington amended its Code to permit ?mixed use buildings? in it?s C-6 General Business District. A number of individuals and an association commenced a hybrid lawsuit to annul the local law on the grounds that the Board failed to take the required ?hard look? under the State Environmental Quality Review [...
Beware: Land Use Lawyers Can Be Responsible for Client Felonies When Failing to Report
Posted on January 29, 2009Attorney Boose, who is licensed in Florida and Nebraska, and his practice in Florida focuses on land use and zoning laws. He regularly appeared before the Palm Beach County Board of Commissioners in Florida, seeking approval of land use, zoning and other real estate matters...
Lawsuit filed Challenging NY?s Participation in Regional Greenhouse Gas Initiative
Posted on January 29, 2009According to a New York Times blog, Indeck Energy has filed a lawsuit in state court against Governor David Paterson, the Department of Environmental Conservation, and the New York State Energy Research and Development Authority today, claiming that there is no legislative authority for the agencies to implement the cap and trade program (it was [...
Commission Exceeded its Authority in Denying Subdivision Application
Posted on January 28, 2009The Supreme Court of Delaware held that the planning commission exceeded its statutory authority in denying outright an application for a residential subdivision that fully complied with the county code. Ashburn filed an application for subdivision plan approval to develop a residential subdivision on 243 acres zoned ?Agricultural Conservation? which authorizes one dwelling per acre...
NH Supreme Court Finds Owner of Nonconforming Rental Dwelling Units Had Right to Continue Use as Dwelling Units Regardless of Converting Ownership to Condos
Posted on January 27, 2009The petitioner, Dovaro, owns a 5,000 square foot lot that contains two buildings housing six apartments and a small cottage. The use of the lot became nonconforming because the lot had too few parking spaces for each dwelling unit under a 2006 amendment to the Town?s zoning code...
CO Supreme Court Holds County Land Use Regulation Banning Use of Chemicals in Mining Preempted by State Law
Posted on January 26, 2009The Colorado Supreme Court held that Summit County?s ban on the use of cyanide or other toxic chemicals in certain mining operations for all zoning districts in the county is impliedly preempted by the State Mined Land Reclamation act (MLRA), amended in 1993 to give the State Mined Land Reclamation Board (Board) authority over the [...
Use of Injunction to Enjoin Violation of Property Maintenance and Health Codes Valid Tool for County
Posted on January 25, 2009Over a period of twelve years the property owner repeated violated the County?s property maintenance code by allowing garbage and derelict vehicles to accumulate on his residential property. On four occasions, after being cited by the County, the property owner temporarily brought the property into minimal compliance...
Town Properly Followed Referral Requirement Prior to Adoption of Zoning Amendment
Posted on January 24, 2009In a declaratory judgement where the plaintiffs sought to annul a Local Law enacted in 2007 to eliminate the planning board?s discretion to approve a longer street in subidivisions having cul-de-sacs, the Appellate Court disagreed with the plaintiff?s contention that the Town was required to provide the County Planning Division with thirty days to review [...
Zoning Board May Condition Variance on Requirement for Reapplication Every Three Years to Continue to Extend Use
Posted on January 23, 2009In 2000 the zoning board of appeals granted the petitioner a variance to permit the conversion of her one-car garage into a bedroom and bathroom to accommodate the special needs of her severely-disabled, paraplegic son on the condition that petitioner restore the property to its original use should any change in circumstance occur...
Granting of Limited Use Variance Did Not Convert Use from Nonconforming to Conforming
Posted on January 22, 2009The zoning board of appeals granted Tino?s a use variance in 1983 for a nonconforming motel to enable him to ?erect an addition to [the] existing motel including 15 new units? based in part on a finding that the particular addition would not alter the essential character of the neighborhood...
New Mexico Appeals Court Upholds Damages Award for Due Process Violation
Posted on January 21, 2009The New Mexico Court of Appeals affirmed a jury award of $8.3 million in damages for a city?s violation of a developer?s procedural due process rights. The court ruled the developer established it had a constitutionally protected property interest in its property?s existing zoning, which the city council violated by not meeting the criteria applicable [...
New Jersey ?Billboardgate? Reforms Do Not Amount to Taking Without a Public Purpose, and Williamson County Ripeness Test Does Not Apply
Posted on January 20, 2009Following a 2003 billboard scandal in New Jersey where two top aids to the Governor were alleged to have used political clout to arrange for permits to build billboards in highly lucrative locations, even where all outdoor advertising was prohibited, Governor McGreevey created the Billboard Policy and Procedure Task Force to review existing State policies [...
Ninth Circuit Court of Appeals Upholds City Ban on Off-Site Commercial Advertising While Allowing Advertising on City-Owned Property
Posted on January 19, 2009The Ninth Circuit Court of Appeals held that the City of Los Angeles did not violate the First Amendment by prohibiting most offsite commercial advertising while simultaneously contracting with a private party to permit the sale of such advertising at City-owned transit stops...
District Court Dismisses Complaint Over Denial of Residential Windmill for Failure to State a Claim Upon Which Relief Can be Granted
Posted on January 18, 2009Following the denial of a building permit in 2005 to enable him to build and operate a residential windmill, the Plaintiff filed a federal lawsuit pro se, alleging that the Town, the building inspector and the zoning board of appeals violated his civil rights...
Eliminating Landfills in Zoning District Valid Exercise of Police Power, Existing Nonconforming Uses May Be Eliminated and Nonconforming Landfill May Not Be Expanded
Posted on January 17, 2009In protracted litigation over a Town local law enacted in 2005 ?to eliminate the operation of sanitary landfills/demolition landfills in the [Town?s AR-1] zoning district? which provided for the elimination of the uses subject to a special use permit but which allowed the continuation without expansion of any landfill operating under a permit from the [...
Federal District Court Dismisses Conspiracy, Due Process and Equal Protection Claims Against Village and Finds Claims Were Timely Filed
Posted on January 16, 2009The Rustons, owners of 27 acres of property in the Town of Skaneateles located outside of the Village of Skaneateles, sought unsuccessfully to subdivide and develop their property. The Plaintiffs filed suit alleging that the Town and Village conspired to violate their civil rights by, among other things: having their attorney become the Village attorney; [...
Service of Process on Building Inspector to Annul Determination of Zoning Board of Appeals Permitted
Posted on January 15, 2009The New York Civil Practice Law and Rules (CPLR sec. 312) allows for service upon a zoning board of appeals by delivery of the notice of petition to the board chairperson or presiding officer, its secretary or clerk, or the town clerk. In the instant matter, the petitioner, a non-profit corporation engaged in religious activities [...
Virginia Climate Change Task Force Report Released With Many Land Use Related Recommendations
Posted on January 15, 2009On December 15, 2008, the Governor?s Climate Change Commission in Virginia released its final report. Established in 2007 by Executive Order 59, the Task Force organized into the following four working groups producing an initial 150 recommendations: adaptation and sequestration; built environment; electric generation and other stationary sources; and transportation and land use...
Federal Court Judge Orders House that Violates Open Space Restriction to Be Removed
Posted on January 14, 2009Last week a Federal District Judge ordered the removal of a house in the Town of Wappinger because the house violated open space restrictions put on the land by the Town Planning Board more than four decades ago. The Judge issued the order to remove the house after the United States Court of Appeals reversed [...
Rhode Island Enacts New Procedures to Expedite Permitting for Affordable Housing
Posted on January 13, 2009Recognizing that ?the slowness and uncertainty of securing permits and regulatory approval from state agencies can impair the viability of affordable housing development, make such development more expensive, and can jeopardize federal and other monies,? Rhode Island has authorized developers of affordable housing to request that a project be classified as a project of critical [...
District Court in New Mexico Halts Implementation of City Green Code
Posted on January 12, 2009In October 2008, a federal district court judge issued a preliminary injunction barring enforcement of the City of Albuquerque?s green building code enacted in 2007 [the Albuquerque Energy Conservation Code and High Performance Building Ordinance] pending the outcome of a lawsuit brought by HVAC and water heating equipment trade organizations, contractors and distributors on the [...
Federal Lawsuit Filed by Amish Alleges Enforcement of Building Codes Violates RLUIPA
Posted on January 12, 2009Last week, the Becket Fund for Religious Liberty filed a federal lawsuit with a 17-count complaint which charges that since 2006, Morristown officials have singled out the Amish, who belong to the Old Order Swartzentruber Amish, for prosecution under local building codes, bringing more than ten separate prosecutions for building or moving homes without permits [...
Zoning Board Improperly Denied Requested Area Variance From Road Frontage Requirement
Posted on January 11, 2009The petitioner, owner of a 9,200 square-foot parcel in the Town?s Residence ?B? District, desired to construct a one-family dwelling on the lot. The zoning ordinance requires a minimum street frontage of 55 feet, and since petitioner only had 45.23 feet of frontage, it applied for an area variance, and in the alternative, a determination [...
Court Upholds Town Board?s Denial of Request to Close Road
Posted on January 11, 2009An appellate court upheld a determination of the Town Board denying the developer?s application to close a road in the Town in connection with a residential development. Although the developer argued that the road was ?useless? which would allow the Town to close the road pursuant to State Highway Law section 171, the Court found [...
Arizona Appeals Court Invalidates Economic Incentive Agreement as Unconstitutional
Posted on January 10, 2009On December 23, 2008, the Arizona Court of Appeals, Division I, largely invalidated a March 2007 economic incentive agreement between the City of Phoenix and NPP CityNorth, L.L.C. that authorized the sharing of 50% of the sales tax proceeds generated by the CityNorth development...
MA Land Court Finds Lowe?s Principal Use is Retail Store and Sales and Not Lumber Yard and That the Planning Board Lacks Authority to Unconditionally Deny Site Plan Application
Posted on January 09, 2009Lowe?s submitted three site plan applications to the planning board for purposes of building a retail establishment consisting of a 168,554 square foot structure (a 136,358 square foot building and a 32,196 square foot attached garden center). The three parcels involved in the proposed development are located in a Highway Business District where retail stores [...
New York Court of Appeals Set to Hear Oral Arguments in Farmland Condemnation Case
Posted on January 09, 2009The following case summary is provided by the New York Court of Appeals for oral arguments set for Wednesday, January 14, 2009: Aspen Creek Estates is challenging the Town of Brookhaven’s proposed condemnation of 39 acres of farmland that Aspen Creek had purchased for residential development...
Property Owners Alleged Sufficient Special Damages for Standing to Challenge Special Use Permit for Adult Business Use
Posted on January 08, 2009The North Carolina Supreme Court held that owners of adjacent and nearby properties sufficiently alleged special damage for purpose of standing to challenge the granting of a special use permit for an adult establishment. Specifically, two of the petitioners owned land adjacent to the subject property, and one petitioner owned a prominent restaurant that was [...
Distinguishing Between Use and Area Variances, NH Supreme Court Finds ZBA Improperly Granted Equitable Waiver
Posted on January 07, 2009Property owners sought an equitable waiver from the zoning board of appeals when after they had begun construction pursuant to a building permit to construct a detached garage a stop work order was issued but then lifted when they made adjustments to the proposed garage and then abutters subsequently convinced the zoning board that the [...
Mining of Sand and Gravel Not a Nonconforming Use as Activities Were Merely in Contemplation of Mining and No Vested Rights Accrued as No Substantial Expenditures Made in Reliance on Permit
Posted on January 06, 2009Plaintiff, owner of approximately 216 acres of land in the Town, commenced a proceeding seeking a declaration that its mining of sand and gravel aggregate on the property was a lawful nonconforming use and that it had therefore acquired a vested right to mine the property...
New Connecticut Environmental Justice Law Includes Definition of Community Environmental Benefit Agreement
Posted on January 05, 2009In May 2008, Connecticut Legislature passed, and the Governor signed, the State?s first environmental justice law. The law took effect January 1, 2009. Definitions are provided for ?environmental justice community,? ?affecting facility,? ?meaningful public participation,? and ?community environmental benefit agreement...
Environmental Review, Endangered Species and Timing of Preliminary Plat Review Addressed by New York Appellate Court
Posted on January 04, 2009A December 31, 2008 decision from the New York Appellate Division, Third Department will affect how planning boards discharge their State Environmental Quality Review (SEQR) obligation to “take a hard look” at potential impacts on endangered species...
NYS DEC Invites Informal Comments on Proposed SEQR Changes Including A Proposed Revised EAF and Guidance Document on Incorporating Climate Change in the EIS
Posted on January 04, 2009The New York State Department of Environmental Conservation (DEC) is seeking input on two preliminary proposals regarding the conduct of environmental reviews under the New York State (NYS) Environmental Quality Review Act (SEQR). The proposals have been circulating to a range of potentially interested organizations and individuals for early, informal review and comment before DEC [...
New Year?s Resolution: Read Agenda for a Sustainable America
Posted on January 03, 2009Widener Law School Professor John Dernbach has pulled together what may be the most important book of 2009 for lawyers, planners, officials at all levels of government and the general public ? Agenda for a Sustainable America. With thoughtful contributions from 41 leading scholars, scientists and lawyers, a compelling case is made that we are [...
Law Firm Not Disqualified Where They Previously Represented Subsidiary Company on a Land Use Matter
Posted on January 02, 2009Skycasters sued Didado Electric for breach of contract in a dispute over electrical work on its satellite dish. Prior to trial, Skycasters moved to disqualify Didado?s attorneys because they had helped an agent for Skycasters obtain a zoning variance to allow it to install the satellite dish...
Zoning Amendment Amounting to Detailed Reuse Plan for Closed Army Facility Voided as Ultra Vires
Posted on January 01, 2009In 1996 the United States closed an Army Reserve facility on a 17-acre parcel of land in the Town of Hempstead. The parcel was located in an area zoned as ?B Residence? permitting single-family detached homes on 6,000 square foot lots with minimum frontage of 55 feet...
NYC Violated Equal Terms Provision of RLUIPA By Revoking Pre-Consideration Allowing Church to Lease Space to Third Party for Catered Social Events
Posted on December 31, 2008Facing serious financial hardship and difficulty in maintaining their exisiting building due to significant declines in membership, the Third Church of Christ entered into a twenty-year lease agreement with a private venture, the Rose Group, allowing the group to hold catered social events in the Church...
Trial Court Has No Authority to Issue Injunction or Declaratory Judgment to Halt Criminal Proceeding
Posted on December 30, 2008During the pendency of a criminal enforcement action, the petitioners sought a stay of the criminal proceedings as well as declarations regarding the conforming nature of certain alterations and improvements made to a residence an accessory building on the petitioner?s lot...
No Standing to Challenge Variance for Accessory Apartment Where Alleged Harms Are Not Different From Those Suffered By Public At Large
Posted on December 29, 2008In an effort to challenge the granting of a variance for an accessory apartment, the petitioners, three individuals and an association of homeowners, were found to lack standing to commence the action since they failed to establish that any of the named parties would suffer an environmental ?injury that is in some way different from [...
Failure to Properly Exhaust Administrative Remedies Results in Termination of Nonconforming Animal Clinic
Posted on December 28, 2008A veterinary clinic operating pursuant to a nonconforming use variance was shut down on September 1, 2006 by the City after 278 cats were discovered on the premises, many of whom were dead, injured and malnourished. In May 2007, the petitioner was found guilty of 28 violations of the State Agriculture and Markets Law...
Adjacent Property Owners Are ?Persons Aggrieved? for Purposes of Zoning and Appeals Court Finds that Two Lots in Single Ownership Merged for Purposes of Zoning
Posted on December 27, 2008Gallo owns two adjacent lots which have been held in common ownership since at least 1945. One lot contains a residence (and is approximately 13,418 square feet) and the second lot has never been developed (and is approximately 12,918 square feet). Since 1956 the zoning regulations require 20,000 square feet and 125 feet of frontage [...
Denial of Special Use Permit for Charter School Upheld as Inconsistent with Comprehensive Plan
Posted on December 26, 2008A charter school for high school students applied to the city for a special use permit to build a new school facility on an undeveloped 4.1 acre parcel. The proposed site is zoned for ?office commercial? use, not for residential, and schools are permitted only subject to special use permit...
Missouri Supreme Court Enforces Heritage Value as Part of Just Compensation in Eminent Domain Matters
Posted on December 25, 2008After the City sought condemnation of 15 acres out of 45 acres owned by the Relators, the Relators claimed that the property had been in the family for over 50 years and that they were therefore entitled to heritage value as part of the just compensation determination...
Ohio Power Siting Board Adopts Rules for Siting of Wind Farms
Posted on December 24, 2008The subject of local control of the siting of wind turbines through zoning, as opposed to state preemption through statewide power siting boards remains controversial in many jurisdictions. A recent case reported on this blog from the State of Washington indicated that Washington State Supreme Court determined that localities were impliedly preempted from regulating wind...
Residency Restrictions for Convicted Sex Offenders Continuing Subject of Attention in New York
Posted on December 23, 2008The subject of residency restrictions for convicted sex offenders continues to be debated in municipal forums across the country. A 2007 report from Connecticut Legislative Research Service indicated that at the time, at least 21 states and 400 local governments had adopted laws dealing with residency restrictions...
Variance Annulled Since Zoning Board Failed to Follow Its Own Precedent
Posted on December 23, 2008Following the purchase of property located in a residential zone that included a single-family residence, Benmar applied for a building permit and subdivision of the property to build a second single-family home. The Building Inspector denied application because the proposed second lot did not comply with the lot-depth requirements of the zoning ordinance...
Parking Variance Denial Upheld as Traffic and Parking are Legitimate Considerations
Posted on December 22, 2008The petitioner sought an area variance from the requirement that eight parking spaces were needed for a proposed retail project. The petitioner proposed no parking with the project. The Court upheld the zoning board?s denial of the area variance, noting that the need to alleviate traffic congestion by requiring adequate parking facilities is a legitimate [...
Zoning Board Area Variance Denials Overturned as Arbitrary and Lacking a Rational Basis
Posted on December 21, 2008A property owner sought area variances to enable him to subdivide a lot with an area of 10,500 square feet that was improved with a single family home, into two lots ? one that would be 6,000 square feet and one that would be 4,500 square feet ? for purposes of constructing a single family [...
NH Supreme Court Finds Zoning Ordinance Imposing Restrictions on Private Dock Preempted by State Law
Posted on December 20, 2008In 1991, the Town of New London enacted a zoning ordinance that designated the property owner?s (Lakeside) lot within a ?shore land overlay district? and prohibited the use of waterfront common areas for lake access except in compliance with the provisions of the ordinance and with planning board approval...
Washington Supreme Court Upholds Redesignation of Agricultural Lands to Commercial Overturning Growth Management Board
Posted on December 19, 2008The Washington Supreme Court ruled there was evidence to support a county?s redesignation of land zoned agricultural to urban commercial, and the regional growth management hearing board committed error in not considering the evidence. The current case is the latest chapter in a years-long struggle over the status of a 110-acre parcel of land located [...
Fear of Increased Business Competition is Not Sufficient Grounds for Standing
Posted on December 18, 2008In overturning a decision of the trial court, a New York appellate court ruled that where the petitioner challenged the granting of a variance to use combustible solvents in a laundry business, the petition failed to allege any clear noneconomic concerns relating to the permit approval...
8th Circuit Court of Appeals Upholds District Court?s Finding that Denial of CUP was Neither a Taking Nor a Due Process Violation
Posted on December 17, 2008In February, the District Court of Minnesota determined that the City Council?s denial of a conditional use permit did not constitute a taking and did not violate due process. The facts are as follows: In 2005, while her late father was ill with cancer, the Plaintiff purchased the property on which he had operated an auto [...
Using Land Use Law to Meet the Affordable Housing Needs of Low-Income Seniors
Posted on December 17, 2008Below is an excerpt from the introduction of new article on affordable housing for low income seniors. With the rapid increase in the senior population due to the aging of the baby boomers, communities can no longer rely on federal and state government programs to deliver the necessary affordable housing stock to meet demands...
Oregon Supreme Court Accepts Certified Questions from United States Court of Appeals for the Ninth Circuit
Posted on December 16, 2008In July 2008, the Ninth Circuit Court of Appeals certified three takings questions to the Oregon Supreme Court in West Linn Corporate Park, LLC v. City of West Linn. This week, the Supreme Court accepted the questions for review. The following excerpt appears in the Court?s December 10, 2008 Media Release: Plaintiff West Linn Corporate Park, [...
7th Circuit Court of Appeals Finds Equal Protection Claim Survives Williamson County Ripeness Rule but Dismisses for Failure to State a Claim
Posted on December 15, 2008Flying J purchased 53.3 acres, zoned C-1(P) General Commercial Planned District, intending to construct a ?travel plaza? (a facility offering food, fuel, grocery, and other services to truck drivers and other travelers), a hotel, and other developments on the site...
Zoning Board?s Interpretation of Code Provision Requiring Substantial Commencement of Project Within One Year Upheld As Reasonable and Rational
Posted on December 14, 2008In November 2004 Peppard obtained an area variance from the zoning board of appeals for the construction of a single family residence. The zoning board directed Peppard to comply with a section of the zoning code that requires the ?improvement, construction or alteration? that was the subject of the variance to be ?substantially commenced? within [...
Zoning Board?s Denial of Nonconforming Use Status Vacated As Arbitrary and Capricious
Posted on December 13, 2008An appellate court held that the court below properly annulled the determination of the zoning board of appeals which found that the petitioners had failed to establish that nonconforming use status as a residential dwelling for a cottage in the rear of their property that began prior to the enactment of the relevant zoning code...
Ordinance Provision Prohibiting Storage of Boat and Trailer Unconstitutionally Vague
Posted on December 12, 2008Following complaints from neighbors, the defendant was charged with violating the Code of the Town of Webster, NY for parking his boat and trailer in his front yard on his driveway. The Ordinance provides, in part, ?No boat, house trailer, camp trailer or mobile home of any kind shall be stored in any front yard [...
ELI Seeking Input on Improving the Connections Between Planning and Wildlife Conservation
Posted on December 12, 2008The Environmental Law Institute (ELI), an independent research and education organization, working in partnership with a team of academics, conservation and planning interests, including the American Planning Association and National Association of County Planners, has put together a survey on the relationship between wildlife conservation and planning...
Hawai?i Court of Appeals Rules Private Citizens Cannot Enforce State Land-Use Statute
Posted on December 11, 2008In 1995, Molokai Ranch (MR) proposed developing 15 commercial overnight campgrounds along the ?Great Molokai Ranch Trail? on the west end of the island of Molokai. In response to MR?s inquiry whether its project could be developed on non-prime agricultural land, the director of the Maui County Department of Public Works (DPW), the person charged [...
State Mining Law Does Not Preempt Local Setback Requirements
Posted on December 09, 2008Following a variance denial from a required 1,000-foot setback from residential structures for surface coal mining, the mining company filed a lawsuit claiming that the state?s Surface Mining Conservation Reclamation Act (SMCRA), which only required a 300-foot setback from residences preempted the local ordinance...
Competitor Lacks Standing to Challenge Rezoning for Cellular Tower One Mile Away
Posted on December 08, 2008The South Carolina Supreme Court determined that a nonadjoining property owner, whose property was about one mile away from the property in question, lacked standing to challenge the rezoning of land leased to a competitor for the purposes of constructing a cellular telephone tower...
Sixth Circuit Court of Appeals Holds City Violated Due Process in Effort to Eliminate Nonconforming Uses
Posted on December 08, 2008A revised zoning ordinance enacted by the City in 1983 rendered many properties noncompliant. The ordinance grandfathered these nonconforming uses calling them viable-nonconforming-use, and provided that the status would be lost if the property owner discontinued the use for six consecutive months...
Respondents Lacked Standing to Challenge Determination of Zoning Officer, and Zoning Board of Appeals Lacked Authority to Review Determination
Posted on December 07, 2008Petitioners RSM proposed to build a residential community on two adjacent parcels, one of which borders Canandaigua Lake. They proposed to build a clubhouse on the parcel bordering the Lake to include a sundeck, docks with boat slips, a pump house and gas pumps...
Rezoning Did Not Constitute Illegal Spot Zoning
Posted on December 06, 2008Following Respondent?s application for a zoning change from a commercial office district designation to a highway commercial district, the City identified the proposed rezoning as an unlisted action for purposes of the State Environmental Quality Review Act (SEQRA), subsequently issued a negative declaration under the Act and rezoned the property as requested...
Acting Chair Need Not Recuse Herself Where Her Father Was Of Counsel to Law Firm That Represented Application on Different Matter Two Years Prior
Posted on December 05, 2008The New Jersey Appeals Court recently revisited their decision in Haggerty v. Red Bank Borough Zoning Bd. of Adjust., 385 N.J. Super. 501 (App. Div. 2006), to determine whether Lauren Nicosia, a member of the Red Bank Zoning Board of Adjustment should have recused herself from participating in the variance application of defendant, MW Red [...
Court Upholds Jury Award of Over $3M in Maryland RLUIPA Suit Finding Substantial Burden on Religious Exercise and No Compelling Interest
Posted on December 04, 2008The Northern District of Maryland found sufficient evidence supported the jury?s finding that the county?s actions were motivated, at least in part, on the basis of religious discrimination in violation of the Equal Protection Clause, and the jury?s finding that the county?s actions imposed a substantial burden on religious exercise in violation of the Religious [...
Colorado Appeals Court Finds Regulatory Impairment of Property Rights Act Does Not Apply to Drainage Basin Fees
Posted on December 03, 2008Wolf Ranch, LLC owns approximately 1,900 acres of land in Colorado Springs. Colorado Springs has promulgated ordinances since the 1960s regulating drainage and control of flood and surface waters. The ordinances apportion drainage infrastructure costs among all developers within a basin, and the City Council sets a per-acre drainage fee by resolution...
DOJ Suit Alleging Village?s Discrimination Against Jewish Boarding Schools May Move Forward, Court Rules
Posted on December 02, 2008On November 12, a federal court in New York held that a lawsuit against the Village of Airmont alleging discrimination against Jewish boarding schools was allowed to move forward. The United States District Court for the Southern District of New York rejected a motion by the Village that the suit, brought under the Religious Land [...
State Energy Siting Law Applies to Wind Turbines and Preempts Local Zoning in Washington State
Posted on December 01, 2008The Washington State Energy Facilities Site Locations Act governs the relocation, construction, and operating conditions of energy facilities in Washington. The law creates a process for determining energy facility locations across the state and requires site certification, a binding agreement between the applicant and the State, and conditions of approval that will assure the applicant?s [...
Court Dismisses Claim Since Petitioner Failed to Raise Issue Before Zoning Board of Appeals
Posted on November 30, 2008Since in an earlier 1991 proceeding, the appellate court concluded that the petitioner?s subdivision of two lots did not qualify as ?[e]xisting lots of record? under the applicable Town Ordinance which would have exempted the lots from the minimum one-acre requirement imposed by the zoning ordinance, the zoning enforcement officer informed the petitioner in 2007 [...
Variance Denial Arbitrary Where Board Fails to Adhere to Its Own Prior Precedent
Posted on November 29, 2008Although local zoning boards of appeal have broad discretion when considering applications for area variances, where the board fails to adhere to its own prior precedent and fails to indicate its reason for reaching a different result on essentially the same facts, the decision will not be upheld as it is considered arbitrary and capricious...
Local Legislator Cannot Be Removed For Voting On Wind Project
Posted on November 28, 2008An appellate court dismissed a petition calling for removal of a town legislator that alleged that the legislator concealed a conflict of interest when he voted to approve a wind energy facility because the project would include a turbine on his property...
Early Black Friday Shopping for Land Use Lawyers, Planners and Planning Commissioners
Posted on November 27, 2008Last year for Thanksgiving the posting featured ?leftover? miscellaneous topics of interest to readers. This year, in the spirit of preparing the holiday shopping lists and reviewing the bargains on Black Friday, Law of the Land finally responds to a number of reader inquiries about recommended books and resources for land use lawyers, planners and [...
Sale of Wine and Beer Permitted, But No Church Services Under RLUIPA Claim Due to Ripeness
Posted on November 26, 2008Since 1986, the Guatay Christian Fellowship has been holding services in the recreation center of the Pine Valley Trailer Park on land zoned rural residential. Non residential and non agricultural uses require a Master Use Permit (MUP). The County sent a notice to the Park in 2008, indicating that the existing MUP for the recreation [...
Lot Not Entitled to Nonconforming Status As Buildable Where it Complied with Zoning But Not With Subdivision Regulations
Posted on November 25, 2008The Rhode Island Supreme Court upheld the lower court?s finding that the lot in question was not entitled to legal nonconforming use status as a buildable lot, because although when it was created it consisted of more than the 80,000 square feet required for buildable lots under the zoning ordinance, the more restrictive subdivision regulations [...
Special Use Permit Denial Not Based on Substantial Evidence in Violation of the Telecommunications Act
Posted on November 24, 2008T-Mobile filed an application for a special use permit to construct a 120-foot tall telecommunications tower to provide residential and vehicular cell phone coverage in the vicinity of the proposed site. The application discussed alternative sites, ruling them out for various reasons...
State Court Claim for Compensation Not Barred By Prior Federal Court Claim
Posted on November 23, 2008Following a federal court dismissal on the grounds of ripeness in Plaintiff?s identical claims pursuant to 42 U.S.C. sec. 1983 for violations of equal protection, due process and just compensation for an alleged taking of property, the Plaintiffs initiated an action in state court...
Legislative Body Not Required to Consider and Vote on Every Application for Zoning Change
Posted on November 23, 2008A Town Board is not required to consider and vote on every application for a zoning change. Since the Board?s decision not to consider the application is a legislative function (adoption of zoning and amendments thereto are legislative actions), the decision is not subject to an Article 78 review under the New York Civil Procedure [...
Curious Jury Verdict in Colorado ?Big Box? RLUIPA Case
Posted on November 22, 2008On one hand, the jury found that the Boulder County, Co. officials did not act in a discriminatory manner in violation of the constitution when they denied the request of the Rocky Mountain Christian Church to expand by almost doubling their size. On the other hand, the jury found that the County denial violated the [...
No RLUIPA Violation Found in Zoning Board?s Denial of Variance and Special Use Permit
Posted on November 21, 2008The Great Lakes Society, a Michigan ecclesiastical corporation and an IRS recognized religious organization, describes itself as ministering to persons having varying degrees of chemical sensitivities to common environmental pollutants. It sought to construct a two-story building on a six-acre parcel located in a low-density residential district...
Taxpayer Suit to Prevent Use of Land for Waste Management Services Was Initiated In Accordance with Statute
Posted on November 20, 2008New York Town Law sec. 268(2) permits a town to institute appropriate actions or proceedings to restrain, correct or abate a zoning violation or to prevent illegal uses of land. The statute provides that where the town fails to institute such action for a period of ten days after a written request of a resident [...
On-Line Professional Education Training for Planners, Commissioners and Land Use Lawyers
Posted on November 20, 2008Through the Bloustein On-Line Continuing Education Program of Rutgers University, produced by the Professional Development Institute, at the Edward J. Bloustein School of Planning and Public Policy, a menu of on-line professional development courses for land use professionals are available...
Landmark Preservation Board?s Denial of Site Review for Proposed Addition and Additional Parking Spaces Upheld
Posted on November 19, 2008The zoning rules and regulations of the City of Syracuse explain that the purpose of project site review is to ?[p]rotect streetscapes from projects that are out of character with existing development,? and they further provide that where buildings have been designated as architecturally significant, applications relating thereto must be referred to the City?s Landmark [...
Oregon?s Measure 37 Waivers Are Binding Constitutionally Protected Contracts
Posted on November 18, 2008Following the passage of Oregon Ballot Measure 49 in 2007, Jackson county, OR announced that it would not honor certain waivers it granted to plaintiffs under earlier Ballot Measure 37. The waivers from certain zoning requirements were granted to the plaintiffs since the county could not pay the monetary compensation that would have been required [...
Arkansas Supreme Court Finds that Requiring Compatibility with Surrounding Land Uses is not a Vague Standard
Posted on November 17, 2008After being denied an application for a permit to build a rock quarry, Benton County Stone, Inc. alleged that the planning ordinance should be determined void for vagueness asserting that the concept of ?land use compatibility? contained in the site development requirements section of the Code is ambiguous and confusing and therefore unconstitutionally vague...
Local Government Failed to Take a Hard Look at Local Law Regulating Industrial Wind Farms
Posted on November 16, 2008The Town of Centerville, NY enacted Local Law No. 1 of 2006 which would have had the effect of changing the zoning for allowable uses within the Town. The State Environmental Quality Review Act (SEQRA) classifies actions for purposes of triggering various environmental review procedures into Type I, Type II and Unlisted action...
Board?s Determination that Realignment of Nonconforming Use Would Not Change Nonconforming Status Upheld
Posted on November 16, 2008The zoning board of appeals determined that a proposed realignment of a pre-existing nonconforming dock/marina in accordance with conditions set forth in a wetlands permit issued by the legislative body does not constitute a change that would alter the nonconforming use status currently enjoyed...
New York Amish Headed to Federal Court
Posted on November 16, 2008Over the summer, this blog reported that a local justice court in upstate New York held that the enforcement of the building code for all residents, including the Amish, does not violate the Religious Land Use and Institutionalized Persons Act. Click here for the posting...
Challenge to Building Permit and Renewals Time-Barred and Subject to Certiorari Rather Than Mandamus Action
Posted on November 15, 2008By an action initiated in June 2007, an adjacent property owner sought to compel the Town to rescind a building permit and subsequent renewals it had issued for the construction of a residence on the adjacent parcel for alleged failure to comply with Town, County and State laws...
GA Supreme Court Finds State Agency Not Required to Regulate Placement of Utility Substations
Posted on November 14, 2008In overturning the Court below, the Georgia Supreme Court determined that although the state Public Service Commission has authority to regulate the siting of utility substations, the law does not mandate that they exercise that authority. The Court noted that there is no requirement that every property or every complex construction project be subject to [...
2008 State Ballot Measures and Land Use
Posted on November 13, 2008Last week, Phyllis Myers from State Resource Strategies released the following: THROUGH A PLANNER?S LENS: NOVEMBER 2008 STATE BALLOTS CHALLENGE VOTERS TO APPROVE AND FUND COMMUNITY DEVELOPMENT, TRANSPORTATION, CONSERVATION, AND RENEWABLE ENERGY PROGRAMS[1] On November 4th, voters around the country considered 153 statewide ballot measures in 36 states, including 84 measures referred by state legislatures and 59 [...
No Ethical or Due Process Violation Where County Counsel Represented County in Proceeding Before the Board and Subsequently Drafted Board?s Findings
Posted on November 12, 2008A Kansas Appeals Court held that the mere fact that the county counsel represented the county in a quasi-judicial proceeding to determine damages as a result of the County?s vacation of two unimproved roads that provided access to a ranch, and that the counsel had a long-standing relationship as the board?s legal advisor, was alone [...
Kansas Supreme Court Says Simple Majority Vote Needed to Overturn Remand Recommendation of Planning Commission
Posted on November 11, 2008This case arises from a request by a school district to the City for a special use permit to allow the construction of an illuminated softball complex and stadium. The area was zoned agricultural which allowed for a softball field but not a stadium with lights...
11th Circuit Finds Invocations at the Start of Planning Commission Meetings Do Not Necessarily Violate the Establishment Clause
Posted on November 10, 2008Taxpayers challenged the practice of offering religious invocations by volunteer members of different religions on a rotating basis at the beginning sessions of the meetings of the county commission and the county planning commission. In finding that both boards were legislative in nature (the planning commission was deemed to be a creature of the county [...
Municipalities Preempted from Interfering with Airport Runway Improvement Project
Posted on November 09, 2008In an action brought under the Supremacy Clause of the U.S. Constitution (which invalidates state laws that interfere with, or are contrary to, federal law), an airport authority sough to prevent a municipality from continuing to obstruct the construction of a federally-mandated, federally-funded, and state and federally-approved aviation safety and air navigation project, known as [...
Structure Without Water and Sanitation Facilities is Not a Residential Use
Posted on November 08, 2008Petitioner owned property subject to the ?Bluff Head Residential Area in the Lake George Park? ordinance, which was enacted in 1971 as part of a regulatory system designed to protect the integrity of Lake George. The ordinance provides in part, that all property in the Bluff Head Residential Area ?shall be used only for single, [...
Pleadings Sufficient to Allege a Civil Rights Violation for Selective Enforcement of Zoning
Posted on November 07, 2008In denying the Borough?s motion to dismiss a Civil Rights case where the plaintiffs alleged that the Borough, ?harassed plaintiffs? tenants regarding the storage of vehicles and auto body parts on plaintiffs? rental property, unlawfully required plaintiffs to remove commercial signs from their property, illegally charged plaintiffs for the improper installation and maintenance of a [...
Utah Supreme Court Determines that Dolan ?Rough Proportionality? Test Means ?Rough Equivalence?
Posted on November 06, 2008B.A.M. received approval for a residential development on the initial condition that they expand the current width of the major road bordering the proposed development from seventeen feet ?half width? to 40 feet half-width. Subsequently, in accordance with changes to the County master traffic plan, B...
Florida State Agencies Sign MOU for Smart Growth, including Climate Change and Sustainability
Posted on November 05, 2008Four Florida State agencies - the Department of Community Affairs, the Department of Environmental Protection, the Department of Health and the Department of Transportation ? have signed a Memorandum of Agreement in Support of ?Smart Growth? whereby they have agreed to assist local governments in creating healthy and sustainable communities by promoting the efficient use [...
Virginia Supreme Court Holds that Joint Comprehensive Plan Does Not Equate to Joint Zoning
Posted on November 04, 2008The Virginia Supreme Court had to determined whether, pursuant to an annexation agreement and a joint comprehensive plan (joint growth area management plan), the County had authority to determine that the school board could construct a high school at an elementary school site without a constriction permit...
Washington Attorney General Opines that County and Town May Enter into Interlocal Agreement for University Educational Programs on Climate Change
Posted on November 03, 2008In the State of Washington, the Attorney General opined that a county and a town have authority to enter into an interlocal agreement pursuant to RCW 39.34.080, under which the town would contract to use the services of Washington State University?s ?extension program? with the county to provide educational programs and other services concerning the [...
Money, Politics and Land Use
Posted on November 02, 2008In an unprecedented investigation, the Chicago Tribune has analyzed a decade of zoning changes to detail how real estate interests have funneled millions of dollars to the aldermen who dictate what can be built. The series has examined how aldermen ignore city planners and frustrated residents as they frequently permit new and bigger buildings that [...
Challenge to Variance Denial Time-Barred for Failure to File Within Required 30 Days
Posted on November 02, 2008Following a denial of an area variance to permit the construction of a second-story deck, the trial court granted the petition and remitted the matter back to the zoning board of appeals. The Appellate Court, however, reversed the trial court because the petitioner failed to timely commence the proceeding within 30 days after the zoning [...
New York Court of Appeals Holds That Tools Are Not Fixtures for Purposes of Condemnation Valuation
Posted on November 01, 2008The New York Court of Appeals unanimously overturned the courts below in a case where a claimant, whose property had been taken by eminent domain, sought to be paid by the City for all the standard industrial tools that he used in the woodworking shop that he operated on the premises...
NY Attorney General Establishes Code of Conduct for Wind Energy Companies
Posted on October 31, 2008The NY Attorney General has announced a new code of ethics for the wind industry along with the establishment of an oversight task force. Although the Code does not appear to be available on-line yet, according to the Attorney General?s press release the Wind Industry Ethics Code prohibits conflicts of interest between municipal officials and [...
Eternal Moratorium Can Be a Taking Says California Appellate Court
Posted on October 30, 2008Monks v. City of Rancho Palos Verdes, involves a 1978 moratorium on construction of new homes in an area in which landslides had occurred. Plaintiffs? property consisted of a number of lots which were vacant and zoned for single family use. Plaintiffs sought approval to build a house in 2002, but the defendant took the [...
Utah Supreme Court Holds Zoning Ordinance May Be Modified by Initiative Process
Posted on October 29, 2008Relying on the State Constitution, the Utah Supreme Court found unconstitutional the state statute prohibiting voters from petitioning for an initiative about a land use ordinance or a change in a land use ordinance. (Election Code 20A-7-401). The Court reviewed the history of Articles I and VI of the State Constitutional, finding that ?the right [...
NY District Court Finds Takings Claim Not Ripe Where Developer Did Not Seek Variance and Did Not Pursue Action in State Court for Compensation
Posted on October 28, 2008In an ongoing effort to develop a parcel of property for multi-family housing in the Town of Greenburgh (NY), the developer was told prior to purchasing the land that it was located in a CA (Central Avenue Mixed Use Impact District) which would allow for the development of a multi-family complex containing at least 82 [...
Planning, Zoning and Property Rights Conference - December 2008
Posted on October 28, 2008Everyone in these economically challenging times is looking for value. Check out a forthcoming two and a half day program offered by the Center for American and International Law (December 10-12 in Plano, Texas). I usually don?t post conference information in this format, but this program is one not to be missed...
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, 2008As 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, 2008Following 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, 2008Finding 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, 2008The 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...
New California Climate Change Law Ties To Land Use, Transportation and Housing
Posted on October 24, 2008Governor 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, 2008In 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, 2008In 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, 2008Doctor 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, 2008A 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, 2008In 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, 2008The 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, 2008Following 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, 2008The 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, 2008Although 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, 2008Defendants 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, 2008Following 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, 2008The 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, 2008Neighbors 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, 2008A 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, 2008Professor 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, 2008In 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, 2008In 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, 2008The 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, 2008The 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, 2008A 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, 2008In 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, 2008At 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, 2008This 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, 2008Sunset 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, 2008Following 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...
Equitable Estoppel Does Not Prevent Governmental Entity From Enforcing Zoning Where it Previously Improperly Permitted Development
Posted on October 02, 2008The Kentucky Supreme Court held that although the planning commission previously improperly permitted development of a subdivision in a manner not consistent with the then applicable zoning statutes and regulations, this prior act does not equitably estop the government from denying further development...
Iowa Residency Restriction for Sex Offenders Upheld by State Supreme Court
Posted on October 01, 2008Residency restrictions for convicted sex offenders remains a controversial topic as communities demand that state and local governments enacted residency and distance restrictions from schools and other places where children congregate in large numbers to protect children from convicted sex offenders who victimized minors, and those who believe that such restrictions are ineffective...
NH Supreme Court Holds That Zoning Administrator Has No Constitutional Duty to Keep Adjacent Property Owners Personally Informed of Ongoing Progress
Posted on September 30, 2008The Strochlics received permits to raze an existing house on their property and to construct a new one in July and September of 2006, following the issuance of a zoning permit in April 2006. Adjacent property owners met with the zoning administrator to inquire about the project, and in October 2006 filed an appeal with [...
District Court Finds Zoning Regulations Violate RLUIPA?s Unreasonable Exclusion and Limits Clause
Posted on September 29, 2008Prior to 2006, the Cooper City zoning ordinance excluded religious uses from business districts, the office park district and the park and recreational district. Various non-religious assemblies, however, were permitted in those districts. In October of 2006, after Chabad of Nova entered into a lease for space in a business district and began attempting to [...
New Book for Lawyers and Planners in Time for the Holidays
Posted on September 29, 2008Professor Michael Allan Wolf?s book, The Zoning of America: Euclid v. Amber (University Press of Kansas, 2008) has recently hit the book shelves. This book provides a fabulous account of the historical background leading up to the seminal land use law case of Euclid v...
TN Appeals Court Finds Mobile Home Park Not Entitled to Nonconforming Use Status Due to Abandonment
Posted on September 28, 2008The County Regional Planning Commission (RPC) brought suit against a mobile home park alleged to be in violation of a private act regulating mobile home parks in the county. In July 1997 the RPC circulated to its members a proposed private act to regulate mobile homes and in January 1998 Sanders, owner of a price [...
Siting of New Firehouse Is Subject to Local Site Plan Approval
Posted on September 27, 2008Following the Town?s denial of a building permit application by the volunteer fire association for the siting of a new firehouse on the ground that the proiject required site plan approval from the planning board, the fire association commenced an action seeking a declaration that it is exempt from the Town?s local land use regulations...
CT Supreme Court Holds Commission Lacks Authority to Require Special Use Permit for Subdivisions Over Certain Size
Posted on September 26, 2008The Plaintiffs appealed from a decision of the Town Planning and Zoning Commission which approved both their special use permit applications for a proposed residential subdivision subject to twenty-eight conditions and their subdivision applications subject to compliance with the special use permit conditions...
VT Supreme Court Invalidates Ordinance and Plan For Lack of Standards To Guide Development
Posted on September 25, 2008JAM Golf sought permits to build ten houses on a seven-acre portion of a 450-acre Planned Residential Development (PRD) known as the Vermont National Country Club. The parcel, called ?the woodland,? sits on a ridge within the golf course and is bounded by three fairways and another residential development...
Guidelines Adopted Subsequent to Williamson Act Contract are Enforceable
Posted on September 24, 2008The Williamson Act in California authorizes local governments to establish ?agricultural preserves? and to adopt rules governing the preserves. In exchange for voluntarily placing land into an established preserve, a landowner receives preferential tax assessment of the land under a Williamson Act contract with the local government...
NH Supreme Court Finds Supermarket was not Inconsistent with the Character of the Historic District
Posted on September 23, 2008Konover Development Corp. proposed building a 36,000 square-foot supermarket on an 11-acre lot between state Route 125 and Main Street in Kingston. The site lies within the town?s historic district because it has frontage within the district, although about two-thirds of the lot is in the town?s rural residential district...
District Court Denies Summary Judgment Motions in RLUIPA Suit Involving the Church of Universal Love and Music
Posted on September 22, 2008The Pritts, founders of the Church of Universal Love and Music (CULM), purchased a 150-acre tract of land zoned for agricultural use for the purpose of holding religious services and events that include concerts or music events. According to the Pritts, CULM ?adheres to nondenominational tenets that seek to advance spirituality, religion and love through [...
CA Appeals Court Holds Nollan/Dolan Rough Proportionality Test Does Not Apply Where Government Conditions Approval On Provision of Affordable Housing
Posted on September 21, 2008The Plaintiff?s brought a facial challenge to an ordinance regulating multi-family housing construction, alleging that the law constituted an unlawful uncompensated taking. Specifically the law requires when developers construct multi-family ownership housing projects in a multi-family district, absent a waiver they are required to construct affordable housing on the site of the development or at [...
Prior Precedent Alone Does Not Support the Granting of a Variance Without Consideration of Statutory Factors
Posted on September 20, 2008Following a denial by the building inspector of an application for a permit to demolish and existing home and to build a new one on two contiguous lots located along the shore of the Long Island sounds, the property owners appealed to the zoning board of appeals for variances from the street frontage requirements on [...
South Carolina Supreme Court Finds that Inclusion of ?Landfills? in List of Allowable Uses Still Required Special Permit Review for Siting of Such Use
Posted on September 19, 2008In December 2002, the county council amended the county zoning ordinance by adding a single word-”landfill”-to a list of uses that could be allowed in what was classified as R-2 Rural District. Specifically, the announcement for the amendment read: “Article 3, Section 301 is amended to add text “landfill” to the uses permitted in R-2 [...
11th Circuit Finds Formula Based Retail Regulations Violate Dormant Commerce Clause
Posted on September 18, 2008Most formula business ordinances include detailed purposes such as promoting a diverse business community, maintaining historic or unique community character, supporting the local economy by enhancing tourism attractions and improving the general quality of life...
Federal District Court Dismisses Sign Litigation Finding no Violations of Federal Constitutional Law
Posted on September 17, 2008After unsuccessful litigation in the state courts, Lamar advertising brought a federal action against the Village of Marathon (NY) following a denial of its application for an area variance to erect a billboard that would exceed the height and face size restrictions of the zoning ordinance...
9th Circuit Reverses Earlier Ruling on Municipal Regulation of Wireless Facilities Holding Now That Providers Must Show Actual Prohibition, Not Merely Possible Prohibition
Posted on September 16, 2008Last week, the Ninth Circuit Court of Appeals upheld a county ordinance limiting the placement, size and design of towers and poles that are needed for companies to provide cell phone service and wireless Internet connections. In doing so, the court announced that it was reversing a standard it had established in 2001 that barred [...
Property Owner Fails to Prove Entitlement to Nonconforming Use Status
Posted on September 15, 2008First Pioneer operated a steel fabrication business on property that it owned. In September 2000, the County issued a notice to First Pioneer that such use violated the zoning ordinance, which had been amended in 1988 to require a conditional use permit for heavy manufacturing uses in the zone; and again in 1995 effecting a [...
Maine Supreme Court Finds Adjacent Landowner Timely Appealed Building Permit in ?Family Subdivision?
Posted on September 14, 2008A since repealed Maine statute allowed for the creation of a ?family subdivision? whereby a division of land (three or more lots within a five year period of time) that was given by gift to certain family members did not create a lot or lots for the purpose of subdivision under state law, unless the [...
7th Circuit Finds No Substantive Due Process Violation Where City Enforces Ordinance Against Advertising Sign Displayed for Three Decades
Posted on September 13, 2008The original owner purchased the four-story building on North State Street in Chicago in 1961 and decided to paint an advertising sign on the south wall of the building without first seeking approval. The wall has been continuously used for advertising since the early 1960s...
Alabama Supreme Court Finds Testimony Based on Council Member?s Personal Knowledge Adequate to Support Denial of Rezoning
Posted on September 12, 2008The city denied rezoning of eight acres from a classification that allows single-family houses on lots with more than 100 feet of frontage to allow development of eight patio homes with less than 100 feet of frontage. Although the city had no expert or professional studies, the Alabama Supreme Court held that testimony of a [...
Ninth Circuit Finds No Valid Federal Constitutional Claim in Failure to Comply with Local Zoning
Posted on September 11, 2008The Logan Neighborhood Association challenged the City?s granting of a building permit to the Dressels to enable them to construct a duplex addition o a house located in an historic district and inventoried on the District?s nomination for the National Register of Historic Places...
Failure to Seek Injunctive Relief to Safeguard Interests Renders Appeal Academic
Posted on September 10, 2008In December 2005 the Village Planning Board granted approval of a preliminary application for a subdivision along with issuing a negative declaration under the State Environmental Quality Review Act. The trial court granted the Village?s motion to dismiss the petitioner?s challenge to the decisions in July 2006...
MA Appeals Court Finds Property Owner Failed to Exercise Rights Under Variance Sufficient to Prevent its Lapse
Posted on September 09, 2008The Town granted Paul Cornell a variance to subdivide a parcel into two lots. After more than a year, Cornell applied for a building permit. The permit was denied by the town on the ground that the variance had expired. Cornell brought suit, asserting that the variance had not lapsed...
Town Driveway Ordinance Containing Slope Requirement is Not a Zoning Regulation
Posted on September 08, 2008The Plaintiff has owned 99 acres of agricultural land since 1976, using an adjacent owner?s driveway permissively for access. In 2004, due to potential renters or buyers for the property, she could no longer rely on the permissive access, and so she applied for a permit to construct her own driveway on a 66-foot wide [...
Ohio Appeals Court Remands Taking Claim for Penn Central Analysis
Posted on September 07, 2008It is increasingly clear that in terms of categorizing the types of the regulatory takings and setting forth the applicable tests to be applied in each type of potential taking, the U.S. Supreme Court?s 2005 decision in Lingle v. Chevron U.S.A., Inc., 544 U...
8th Circuit Allows Section 1983 Suit in Sign Permit Denial Appeal
Posted on September 06, 2008Between 2000 and 2004, the City, in conjunction with the St. Louis Development Corporation (SLDC) and the Land Clearance for Redevelopment Authority (LCRA), exercised eminent domain to condemn 24 buildings owned by SITO, a nonprofit corporation that obtained residential properties to provide low-income housing...
New Florida Law Requires Comprehensive Plans to Address to Climate Change
Posted on September 05, 2008On June 17, 2008 Florida Governor Crist signed a new law that, among other things, requires local governments to address climate change in comprehensive plans with green-house gas reduction strategies, energy-efficient development patterns, and factors to increase energy conservation in housing design and construction and in other contexts...
NY Trial Court Determines That County Is Proper Jurisdiction to Enforce Building Code against OTB
Posted on September 04, 2008The Village of Suffern issued building code violations to the Catskill Regional Off-Track Betting Corporation (OTB) citing an abandoned box truck without an inspection sticker on its premises, failure to maintain bushes alongside the building, a guardrail that was sagging and decaying (and broken), failure to maintain the parking lot, no working drainage system, debris [...
Appellate Court Finds No Need to Prove Junkyard Owner Committed a Willful Violation of Stipulation
Posted on September 04, 2008Following years of disagreement between the Town and the operator of a junkyard regarding regulation of the operation, the parties entered into two stipulations of settlement agreements at different times which required the operator of the junkyard to operate in accordance with specified mandates and entitled the Town to seek liquidated damages and a permanent [...
Texas Appeals Court Finds No Merit to Aesthetic Nuisance Claim against Wind Farm
Posted on September 03, 2008A Texas appeals court upheld a dismissal by the trial court of assertions of both public and private nuisance claims relating to the construction and operation of a wind farm. Specifically the court noted that the Plaintiffs cannot assert a nuisance claim based upon the wind farm?s aesthetic impact...
Although Veterinary Clinic is Allowed in District, The Issued Permit is Invalid Because it was Dependent Upon Illegal Conditions
Posted on September 02, 2008The Connecticut Supreme Court held that where the zoning ordinance permitted a ?medical, dental or similar health-oriented? facility, a veterinary clinic was an allowable use. In determining whether a similar ?health-oriented? facility included a veterinary clinic, a phrase not defined in the zoning ordinance, the Court looked to the purpose of the regulation...
Ohio Appeals Court Holds Zoning Manager Must Revoke Mistakenly Issued Permit
Posted on September 01, 2008Because a township zoning manager lacked statutory authority to allow a sign erected in violation of the zoning ordinance to remain in place, the Ohio Court of Appeals (6th Dist.) ruled that the permit must be revoked. The township zoning manager, issued a permit for a sign to be placed on a building being renovated [...
Board Improperly Denied Permit For Adult Bookstore on Grounds That Preview Booths Were Not Accessory Uses
Posted on August 31, 2008The Connecticut Supreme Court ruled that a town planning and zoning commission erred when it rejected a site plan application for an adult book and video store on the ground the store?s video preview booths were not a permitted accessory use In 2006, Loring applied for site plan approval to change two units in a shopping plaza [...
Delay by County Planning Board in Acting on Application Not Excusable
Posted on August 30, 2008The New Jersey Supreme Court ruled a county planning board?s failure to act upon a complete site plan application within the statutory time limit triggered the law?s automatic approval provision. The court rejected the board?s contention that the applicant had granted it an open-ended extension of time to act...
NH Supreme Court Explains Difference Between Zoning Regulation and Licensing Regulation in Upholding Nonconforming Use Status of Junkyard
Posted on August 29, 2008The New Hampshire Supreme Court upheld the nonconforming use status of a junkyard that operated prior to the adoption of the Town?s comprehensive zoning ordinance which mandated that all motor vehicle junkyards abide by state law which, among other things, required junkyard owners to submit an application to the municipality of location containing certain information [...
Michigan Appeals Court Finds Variance Denial Was Not a Substantial Burden under RLUIPA
Posted on August 28, 2008Following their decision in Greater Bible Way Temple of Jackson v City of Jackson, 478 Mich. 373 (2007), the Supreme Court of Michigan remanded the Shepherd Montessori Center Milan case back to the Court of Appeals with instructions to ?reconsider whether the denial of the zoning variance imposed a ?substantial burden? on the plaintiff?s religious [...
NJ Appellate Court Finds No Evidence of Blight to Support Eminent Domain Action
Posted on August 27, 2008Relying on the New Jersey Supreme Court?s recent ruling in Gallenthin v. Borough of Paulsboro, 191 N.J. 344 (2007) which held that state statute requires a finding of actual blight (f N.J.S.A. 40A:12A-5) an appellate court remanded the matter for a plenary hearing, finding that the record was devoid of the requisite substantial evidence of [...
NY Appeals Court Upholds Invalidation of Town Comprehensive Plan as Exclusionary
Posted on August 26, 2008In 2004 the Town of Montgomery adopted a comprehensive land use plan and implementing zoning laws that, among other things, eliminated the multi-family (RM-1) zoning district. In a major ruling last week, the appellate court upheld the trial court?s determination that this action constituted exclusionary zoning given the local and regional need for affordable housing...
E.D. of New York Gives Green Light for Fair Housing Act Claim
Posted on August 25, 2008Plaintiffs filed a lawsuit alleging that the Village has violated the Fair Housing Act by proposing a redevelopment plan that is expected to displace 21% of the Village?s Latino population while displacing only 1.2% of the Village?s White population. Although only 12...
Oklahoma Enacts Law Including Sex Offender Residency Restrictions
Posted on August 24, 2008Communities across the country continue to debate the development and adoption of residency restrictions the prohibit convicted sex offenders from residing in close proximity to areas where children are known to congregate. These laws, whether adopted at the state or local levels, have been successfully challenged on both constitutional and preemption grounds...
New California Law Allows Local Option to Collect Impact Fees Later in Development Process to Aid Developers
Posted on August 23, 2008AB 2604, signed by the Governor on August 1, 2008, allows local agencies to defer the collection of development impact fees to the close of escrow. Given that most developer fees are currently collected at the building-permit stage, this bill will give some builders at least temporary relief from what can be a significant burden [...
Ninth Circuit Finds that Dogs May Be ?Livestock? for Purposes of Easement
Posted on August 22, 2008The Parks operated a dog training and kennel service on property along the Clearwater River in Idaho. The property was subject to a scenic easement granted to the United States, which prohibited ?professional or commercial activities? but permitted ?general crop and livestock farming...
Second Circuit Upholds District Court?s Dismissal on Ripeness Grounds Finding Futility Exception Did Not Apply
Posted on August 21, 2008Lost Trail, LLC claimed that the town attorneys erred in concluding that their recorded subdivisions were legally ineffective under Connecticut law and in denying their building permits. The Second Circuit, in affirming the dismissal of the federal lawsuit, noted that land use challenges, whether pursued as takings claims or as violations of equal protection or [...
PA Commonwealth Court Explains Merger Doctrine and Finds No Evidence of Intent to Maintain Nonconforming Lots in Single and Separate Ownership
Posted on August 20, 2008The Plaintiff purchased a .3 acre lot that was part of an approved subdivision prior to a change in zoning that now requires a minimum 1-acre lot. The Plaintiff purchased the lot in 2005 from a company that purchased sixteen lots in 2003 that had been part of the originally approved subdivision from the County [...
1st Circuit Upholds City?s Ban on Electronic Billboards
Posted on August 19, 2008Earlier this year the First Circuit Court of Appeals affirmed the denial of Naser Jewelers? motion for a preliminary injunction against the enforcement of a city ordinance prohibiting all Electronic Messaging Centers (”EMCs”),holding that plaintiff had no probability of success on the merits...
No Ethical Violation Where County Attorney Served on Board of Organization Promoting Sustainable Development
Posted on August 18, 2008After serving for ten years as the elected county attorney, DePuy resigned her position and began working in the newly created part-time position as a county attorney doing civil work, including advising the Park County Commissioners and the county planning staff on various legal issues, including land use and development issues...
American Bar Association Adopts Model Statute on Local Land Use Planning Procedures
Posted on August 17, 2008On Monday, August 11, 2008, the American Bar Association, through its House of Delegates, adopted a Model Statute on Local Land Use Planning Procedures, advanced jointly by the State and Local Government Law Section and the Administrative Law Section, and co-sponsored by the Real Property Law Section and the Government and Public Sector Lawyers Division...
The Big Look Task Force on Oregon Land Use Issues Preliminary Recommendations
Posted on August 16, 2008As students of planning law know, Oregon was the original trailblazer in the field of state planning and growth management. Therefore, it is important to watch the State-initiated assessment of how well the statewide planning program, initially adopted in the 1970s (and of course updated from time to time) has achieved its intended goals, as [...
Atlantic Yards Litigation Moves to State Court
Posted on August 15, 2008After an unsuccessful effort to get the U.S. Supreme Court to hear their federal appeal, on August 1, 2008, the Plaintiffs - nine property owners and tenants with homes and businesses New York State intends to condemn for the Forest City Ratner Atlantic Yards project ? have filed a petition with the Appellate Division in [...
Use of Recycled Wastewater on Sacred Mountain Does Not Violate RFRA, NEPA or NHPA
Posted on August 15, 2008The Ninth Circuit Court of Appeals has held that the Government?s use of recycled wastewater to create artificial snow on government-owned parkland located on mountain sacred to Indian tribes? religion, did not violate the Religious Freedom Restoration Act, the National Environmental Policy Act, nor the National Historic Preservation Act...
First Test of 1991 Act Providing for Indemnification of Participating Communities in the Regional Hudson River Valley Greenway Compact
Posted on August 15, 2008First Test of 1991 Act Providing for Indemnification of Participating Communities in the Regional Hudson River Valley Greenway Compact The Greenway Compact is a program that helps to reinforce regional concerns in the local planning process and is a central objective of the 1991 Greenway Act...
6th Circuit Finds Warrantless Search by Zoning Enforcement Official Unconstitutional
Posted on August 14, 2008The Sixth Circuit Court of Appeals found that a local zoning enforcement officer violated a landowner?s rights under the Fourth Amendment to the U.S. Constitution by conducting a warrantless search of the landowner?s property for evidence of zoning violations that could lead to future criminal prosecution...
Town?s Zoning Law May Regulate Indirectly or Incidentally Interior Areas of Single Family Homes through Bulk Regulation of Maximum Floor-to-Area Ratios
Posted on August 13, 2008A developer challenged the Town?s zoning bylaws that provide for a maximum floor-to-area ratio (the numerator is the gross floor area of a building and the denominator is the area of the lot on which it sits) to regulate land use in different zones, alleging it violates State statute which provides, in part, ?No zoning [...
Feds Announce Proposed Regulations to Modify the Endangered Species Act
Posted on August 12, 2008The emails have been flying briskly today about proposed amendments to the Endangered Species Act (ESA) regulations that are believed by the environmental community to pose a serious threat to the long standing protections afforded under the ESA. The following is excerpted from the Washington Post: The Bush administration yesterday proposed a regulatory overhaul of the [...
No Common-Law Vested Rights Acquired Where Map Submitted by the Applicant was Inaccurate
Posted on August 12, 2008In a typical ?race? between a developer and a community opposed to a project, the community sought a rezoning to prohibit structures, such as the proposed seven-story apartment building amid mostly detached one and two family homes, while the developer endeavored to complete as much of the construction as possible prior to any potential rezoning...
Keeping Track of Climate Change Litigation
Posted on August 11, 2008Previously on this blog, I reviewed a terrific book edited by Michael Gerrard, Esq. of Arnold and Porter in New York City. The book, published by the American Bar Association, Global Climate Change and U.S. Law, is updated in part through a wonderful on-line multi-page chart showing all the climate change cases that had been decided [...
No Adverse Possession Over Open Space Set Aside in Cluster Development Since Possession was not Hostile
Posted on August 11, 2008In 1982, as a condition of approval for a cluster development of four residential lots, the East Hampton Livestock Corporation (EHLC) agreed to set aside as open space an abutting 2.8 acres of land and to encumber the four lots as well as this parcel with scenic and conservation easements...
Emergency Legislation in California Extends Life of Tentative Maps for One Year
Posted on August 10, 2008The California Legislature passed and California Governor Arnold Schwarzenegger signed SB 1185, emergency legislation that extends the life of certain tentative subdivision maps. The Legislature found it necessary for the law to take effect immediately ?to preserve development applications that are set to expire and that cannot be processed presently due to prevailing adverse economic [...
Land Use Accountability Project Launched by Center for Public Integrity
Posted on August 09, 2008The following press release of interest to Law of Land readers was issued this week: Washington, D.C., August 7, 2008 ? The Center for Public Integrity is launching its Land Use Accountability Project this week, focusing on the role of money and politics in land use and development decisions affecting America?s open spaces...
Wisconsin Governor?s Task Force on Global Warming Issues Report
Posted on August 09, 2008On July 24, 2008, the Governor?s Task Force on Global Warming issued its report containing over 50 recommendations in the utility, transportation, agriculture, forestry and industry sectors, as well as a number of recommendations in other areas. Among the recommendations from the Transportation Working Group is the development of policies to enable individuals to reduce [...
Quasi-Governmental Economic Development Corporations Must Follow the Open Meetings and Open Records Laws
Posted on August 08, 2008The State in State of Wisconsin v. Beaver Dam Area Development Corporation, 2008 WI 90, asked the Wisconsin Supreme Court to determine whether a governmental economic development corporation is a quasi-governmental corporation subject to Wisconsin?s open meetings and public records laws...
Ninth Circuit Says Historic Winery Must Remove Interior Building Barriers for ADA Compliance
Posted on August 07, 2008A paraplegic visiting a winery with his grandmother encountered discrimination when barriers prevented him from participating fully in the winery experience. These barriers, confirmed by an expert, included noncompliant doorways, steep slopes on ramps and a wine bar height too high to accommodate someone in a wheelchair...
Zoning Board?s Interpretation of Ordinance Not Upheld Where it Was Contrary to Clear Wording
Posted on August 06, 2008A 2003 amendment to the Village zoning ordinance rendered the petitioners? four contiguous lots nonconforming since they could not meet the now required 60 foot minimum setback for road frontage in the residential district. The owners applied to the zoning board of appeals for an interpretation of a section of the Code adopted in 1954 [...
Refusal to Allow Church to Locate Longer Term in Industrial Park Found to Violate RLUIPA
Posted on August 05, 2008The Grace Church entered into an agreement to lease certain property located in an Industrial Park where churches and other noncommercial uses were allowed subject to a conditional use permit (CUP). After the Church signed a long term lease, they applied to the City for a CUP...
Ninth Circuit Certifies Takings Questions to Oregon Supreme Court
Posted on August 04, 2008In a case involving appeals from the determination that a taking of its property did not occur as the result of certain actions by the City, that other actions did constitute inverse condemnation and that defendant violated plaintiff?s First Amendment rights by retaliating against plaintiff for its speech, the defendant removed the case to federal [...
Montana Enacts Digital Billboard Moratorium
Posted on August 03, 2008After receiving over 400 public comments on the proposed action, the Montana Transportation Commission voted unanimously to ban electronic billboards on interstate and primary roads until the outcomes of future safety studies are known. They believe the results of the studies will enable them to make decisions about the future of digital sign technology based [...
Model Form to Notify Adjacent Municipalities of Certain Proposed Land Use Actions
Posted on August 03, 2008Effective July 2006, a new law enacted to encourage coordination of land use regulation among adjacent municipalities, requires that a city, town or village give notice to an adjoining city, town or village in the event it plans to conduct a public hearing relating to: (a) the issuance of a proposed special permit or the granting of [...
Local Government Role in the Siting of Wind Facilities
Posted on August 02, 2008So far, the case law that has been generated on the sited of wind farms clearly indicates that the decisionmaking has been occurring at the local government level through routine land use planning and zoning (and applicable local environmental review) decision making...
Enforcement of the Building Code Does Not Violate RLUIPA nor Discriminate Against Amish
Posted on August 01, 2008A Town Justice Court denied a request by a group of Amish residents to dismiss charges of failure to follow building code based upon religious beliefs. After being charged with violations of the building code for building without permits, and in one case, moving a building without a permit, several members of the Amish community moved [...
Local Zoning Ordinances Imposing Distance Requirements for Convicted Sex Offenders Struck Down by New Jersey Appellate Court
Posted on July 31, 2008The Townships of Galloway and Cherry Hill each adopted a zoning ordinance that prohibited convicted sex offenders (CSOs) from living within 2500 feet of any school, park, playground or daycare center in the Township. The ordinances provided for penalties of fines and imprisonment if the CSO failed to move within sixty days of notice from [...
CA Appeals Court Holds Approval of a Vesting Tentative Map Does Not Protect Developer Against New Land Use Regulations in a Local Coastal Plan
Posted on July 30, 2008The California Coastal Act requires a coastal permit for development within the coastal zone. A coastal permit cannot be issued unless the development is consistent with the Local Coastal Plan. Local Coastal Plans, which typically consist of parts of the local agency?s general plan land use element, are part of the Local Coastal Program, and [...
Financial Burden Resulting from Inability to Use Property as Desired Does Not Constitute a Substantial Burden on Religious Exercise under RLUIPA
Posted on July 29, 2008The City denied the Church a special exemption to allow the operation of a faith-based counseling center for members and for the general public out of a single-family residence the Church purchased adjacent to its existing church and ?fellowship hall...
Zoning Board?s Finding that Wind Farm is a Public Utility Upheld by Appellate Court
Posted on July 28, 2008The Beekmantown Zoning Board of Appeals approved an application for a conditional use permit to allow the construction of a wind farm on a 700-acre parcel in an R-2 Residential District. According the Town?s zoning law, conditional use permits are required for essential services defined in part as, ?[e]rection, construction, alteration, operation or maintenance by [...
District Court Rules that ?Virtual? Adult Entertainment Business Has Standing to Challenge City?s Zoning Ordinance
Posted on July 27, 2008The City of Miami?s zoning code prohibited adult businesses from operating in residential zones and required such businesses to obtain a special permit. The plaintiff, Flava Works, leased a residence in Miami that was used in its business through webcasts of the occupants (CocoDorm...
Virginia Amends Nonconforming Use Statute to Provide Vested Rights
Posted on July 26, 2008Introduced at the request of the Realtors Association, a new law in Virginia provides that property owners who have constructed buildings or structures in accordance with zoning ordinances in effect at that time cannot be required by the locality to remove them due to future changes in the zoning ordinance so long as they have paid [...
New Hampshire Enacts Law on Municipal Regulation of Small Wind Energy Systems and Solar
Posted on July 26, 2008A research project by a group of students from the University of New Hampshire has led to a new law restricting municipalities from unreasonably prohibiting the installation or performance of small wind energy systems. The law, signed on July 11, 2008 also establishes a simple framework for local regulation of wind turbines that are used [...
Condemnee?s Failure to Show State?s Temporary Easement for Grading Purposes Affected Marketability of Parcel Bars Sales Prospect as Measure of Damages
Posted on July 25, 2008The formula for measuring damages when a mere temporary easement encumbers a parcel?s highway frontage was set out by the Court of Appeals in Village of Highland Falls v. State, 44 N.Y.2d 505, 406 N.Y.S.2d 446, in 1978, where the Court stressed that an award made after the easement has expired should be based on [...
Exclusion of Church from Tax Increment Financing District May Violate RLUIPA?s Equal Terms Provision Depending Upon the Facts, Nonetheless Injunction Request Denied
Posted on July 24, 2008In denying the Church?s request for a preliminary injunction preventing the Village from enforcing certain provisions of its zoning ordinance because of alleged violations of the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal District Court for the Northern District of Illinois noted that the 7th Circuit has [...
Vested Rights Doctrine is Not Applicable to an Impact Tax Because the Tax Does Not Restrict Use of the Property
Posted on July 23, 2008Montgomery County, Maryland imposed a countywide impact tax on development that increased the gross floor area of nonresidential development for building permit applications filed on or after July 1, 2002. Less than one month before the effective date, Srour and his company filed a building permit application with the County Department of Permitting Services (DPS) [...
City May Not Regulate Hours That Restaurant May Serve Alcoholic Beverages
Posted on July 22, 2008Thunderbird Burgers is located in a BMS-X zoning district where the operation of businesses after 11pm is prohibited. In 2002, the restaurant applied for and received a liquor license from the City?s Beverages Licensing Authority, after which they regularly stayed open past 11pm, in violation of the zoning designation...
7th Circuit Holds That Neither RLUIPA nor the Fair Housing Act Applies to Regulations Adopted by Private Condo Association Prohibiting Posting of Mezuzah on Doorpost
Posted on July 21, 2008In September 2001 a condominium association adopted rules for the hallways that among other things, provides that ?[m]ats, boots, shoes, carts or objects of any sort? are prohibited from being placed outside any owners? doors. Signs on doors and in hallways were also prohibited...
New Hampshire Enacts New Law Requiring Workforce Housing, Providing for Accelerated Review and a Builder?s Remedy
Posted on July 20, 2008Seventeen years ago, the New Hampshire Supreme Court issued a resounding decision in favor of affordable housing. In the case Britton v. Town of Chester, 134 N.H. 434 (1991) the Court determined that the state?s planning and zoning statutes called for every municipality to provide a reasonable and realistic opportunity for the development of housing [...
New CT Law Focuses on Regional Planning, Boundary Review and Criteria for Review of Regional Plans of Development
Posted on July 19, 2008A new law in Connecticut requires the Office of Policy and Management (OPM) secretary to (1) rank the state?s policies for developing and conserving land and (2) track the extent to which the state’s principles for managing growth are being implemented...
Kentucky Statutory Amendment Provides Timetable for Action on Planning Goals and Objectives
Posted on July 19, 2008The Kentucky Legislature enacted a measure this spring providing a timetable for legislative bodies and fiscal courts to act on statements of planning goals and objectives and on proposed amendments once received from the planning commission as their final action...
Maine Courts Remand Matter to Zoning Board Where Town Failed to Provide Timely Notice of Public Hearing
Posted on July 18, 2008Following the approval of a conditional use permit to operate a restaurant, it was discovered that the Town neglected to send the abutting property owners written notice of the public hearing, and they failed to send notice that the permit had been issued until four months after the fact...
NY Attorney General Launches Investigation of Potential Unethical and Illegal Dealings Between Wind Power Companies and Municipalities
Posted on July 17, 2008Attorney General Andrew Cuomo launched an investigation this week into two companies developing and operating wind farms across New York amid allegations of improper dealings with public officials and anti-competitive practices. The following is reprinted from the press release: Subpoenas were served on Newton, Massachusetts-based First Wind (formerly known as UPC Wind) and Essex, Connecticut-based Noble [...
Wisconsin Supreme Court Holds Zoning Ordinance with No Permitted Uses is Unconstitutional
Posted on July 17, 2008An off highway vehicle club purchased approximately 77 acres of land in a B-2 Commercial Manufacturing or Processing Zone within which there are no permitted uses. Six conditional uses were authorized. The Club used the property for riding all-terrain vehicles (ATVs) and for hunting...
Controversial Maui Workforce Housing Law Continues to Wind Through the Courts ? District Court Sends Case to State Court on Compensation Issue
Posted on July 16, 2008In 2006, over the Mayor?s objection, the Maui County Council adopted a Residential Workforce Housing Policy that in essence, requires developers seeking to build five or more residential units on their land to enter into a ?Residential Workforce Housing Agreement? with the County before final subdivision approval or building permits are issued...
With Variance Request Zoning Board May Consider Evidence of Conformity of Nearby Residences
Posted on July 16, 2008In upholding the denial of area variances in connection with a proposed subdivision, the appellate court stated that contrary to the petitioner?s contentions, the zoning board of appeals may consider evidence presented that shows that all residences within a 200-foot radius immediately surrounding the subject property were in conformity with the area requirements for that [...
Alaska Supreme Court Invalidates Local Initiative Regulating Size of Retail and Wholesale Buildings For Failure to Involve Planning Commission
Posted on July 15, 2008Following the enactment of an ordinance by the City Council limiting the floor area of stores in certain zoning districts to between 20,000 and 45,500 square feet, residents passed an initiative increasing the area to 66,000 square feet in these districts...
Indiana Supreme Court Determines that Proposed Solid Waste Transfer Station Meets Definition of ?Motor Truck Terminal?
Posted on July 14, 2008The applicable zoning allowed for a ?motor truck terminal? as of right, and the owner wished to build a ?solid waste transfer station? and recycling facility on the land, where trucks would unload materials for temporary storage before being re-loaded onto larger trucks to be taken to incinerators, landfills or recycling facilities, the Indiana Supreme [...
Utah Supreme Court Holds City is Not Required to Put Council Resolution on the Ballot
Posted on July 13, 2008This week the Utah Supreme Court upheld a district court decision denying a request from Citizens for Responsible Transportation (CRT) that Draper City be compelled to put on the ballot a city council resolution endorsing the TRAX commuter rail alignment through the city...
NJ Municipalities May Not Require Developer Set-Asides or Fees for Common Open Space or Recreational Lands for Non-PUD Projects
Posted on July 12, 2008The New Jersey Shore Builders Association challenged amendments to the zoning code of Jackson Township, and the Builders League of South Jersey challenged amendments to the zoning code of Egg Harbor Township. The challenged provisions of the zoning codes required certain exactions as a condition of development approvals for all sizeable residential developments...
New York Enacts Changes to Adverse Possession Law to Require Claim of Right
Posted on July 11, 2008Following a 2007 veto of S.5364-A/A.9156 (veto #153)by Governor Spitzer, this week Governor David Patterson signed S.7915-C/A.11574-A changing the statutory standard for adverse possession in New York. According to the Sponsor?s Memorandum in support of the bill (Senator Elizabeth O?C...
Redevelopment ? Planning, Law and Project Implementation: A Guide for Practitioners
Posted on July 11, 2008This one-of-a-kind new book is a wonderful resource for land use practitioners and developers who are navigating the dynamic regulatory environment surrounding mixed use and urban redevelopment (and in ?fill) projects. Redevelopment projects can be more challenging, more time consuming and more costly than traditional development projects where the project developer starts with a vacant [...
Sixth Circuit Court of Appeals Finds Procedural Due Process Claim was Ancillary to Takings Claim and Unripe for Review
Posted on July 10, 2008Landowners sought to rezone their farmland to a zone allowing for a mobile home park and other residential development. The Township Board denied their application for rezoning based on its conclusion that the proposed rezoning would have a significant impact on traffic, education, and law enforcement...
NJ Supreme Court Holds that a Development Company Cannot be Required to Pay More than its Fair Share of Off-Site Improvements, Irrespective of Development Agreement
Posted on July 09, 2008In the late 1980s, two development companies sought approval to build on adjacent properties. One company intended to build a multiple-use development to include commercial, residential, and retail elements on a 540-acre site. The other company bought property adjacent to this site, intending to construct a 500,000 square foot office park...
11th Circuit Court of Appeals Says Landlord Can Assert Tenants? Rights
Posted on July 08, 2008The 11th U.S. Circuit Court of Appeals ruled that the owner of an apartment complex has standing to assert the rights of its tenants to equal protection of the laws in a lawsuit claiming the town used its land-use regulations to expel Hispanic immigrants...
MA Governor Signs Green Communities Act
Posted on July 07, 2008Last week, Massachusetts Governor Duval Patrick signed The Green Communities Act (S. 2768), representing a three-way compromise with the House and the Senate. This is a comprehensive new law. Among the provisions with the most direct effect on land use are: -The law requires utility companies to enter into 10- to 15-year contracts with renewable energy [...
Size Does Not Determine Whether Use is Accessory Where Zoning Ordinance Does Not Limit Square Footage
Posted on July 06, 2008Following a moratoria and protracted litigation over the proposed construction of 31 seasonal residences to be built by the owners of a local beach and yacht club in a Marine Recreational zoning district, the zoning board of appeals determined that the proposed use was not an accessory use pursuant to the Village Zoning Code which [...
NH Supreme Court Finds that Use of Conservation Easement on Required Yield-Plan for Open Space Did Not Satisfy Local Regulations
Posted on July 05, 2008In 1989 the plaintiff?s predecessor in interest received approval from the town planning board to develop the 77-acre parcel by constructing 25 duplex buildings. In 1990, the previous owners conveyed a conservation easement to the town over approximately 50 of the 77 acres, and although the previous owners had discussed the easement with the planning [...
Court Says that Size of the Structure Does Not Dictate its Status as either a Primary or Accessory Use
Posted on July 04, 2008The applicant proposed to construct a 7,776-square-foot stable, a 16,000-square-foot indoor riding ring, and two outdoor riding rings in an R-1 Residential District. The facilities were intended to be used for the boarding of horses, riding lessons, a summer day-camp, and an annual horse show...
Ninth Circuit Court of Appeals Upholds Use of Eminent Domain for Electric Power Transmission
Posted on July 03, 2008In a case where the United States had instituted condemnation proceedings to acquire easements for the Western Area Power Administration (WAPA), Sawyer and several other plaintiffs challenged the use of eminent domain. The plaintiffs alleged that the taking was unauthorized, that it was not for a public use, and that it violated California law...
NY Appellate Court Decision a Reminder to Planners to Consider Special Needs for Terrorist Sensitive Facilities
Posted on July 02, 2008In a unanimous decision, a New York Appellate Court upheld a jury?s finding that the Port Authority of New York and New Jersey had failed to implement adequate security measures despite repeated warnings that the World Trade Center?s underground parking garage was vulnerable to an ?event of potentially catastrophic magnitude,? amounted to negligence...
Missouri Joins States that Recognize Inverse Condemnation Actions for Condemnation Blight
Posted on July 01, 2008The city declared a retail shopping center blighted in May 2003 and entered into a redevelopment agreement with a developer in May 2004. By August 2005, the city had cancelled the agreement, and started to solicit tax increment financing (TIF) proposals for the property...
Montana Attorney General Issues Opinion on Voter Eligibility for County Zoning Regulation Initiatives
Posted on June 30, 2008Last Monday, Mike McGrath, the Montana Attorney General issued an opinion holding that the ?qualified? voters for purposes of county zoning regulation initiatives effective in all unincorporated areas of the county are all of the residents of the county, including those who reside in incorporated areas (e...
Property Owner who Lobbied for Zoning that Would Permit his Proposed Use But Did Not Apply for Approval is Not an ?Applicant or Permittee? for Purposes of Anti-SLAPP Law
Posted on June 29, 2008Hariri, an attorney and purchaser of the former Grumman Airfield in Riverhead, planned to use it to store one or more business jets. The town was developing a new plan for the enterprise park in which the property is located. Hariri lobbied in favor of a plan that would allow the use...
Revocation of Permits Pending when the Property was Designated a Historic Landmark is Consistent with Historic Preservation Law and Does Not Amount to a Taking
Posted on June 28, 2008In 2001, the owner purchased the former Italian Embassy. After architects advised that the property was eligible for designation as an historic landmark, the owner apparently met with the Historic Preservation Officer, Maloney, to discuss plans to develop high-end condominiums...
DOJ Closes RLUIPA Investigation after City Amends Zoning Code and Allows Church to Meet in Former Moose Lodge
Posted on June 27, 2008The May/June issue of Religious Freedom in Focus (vol. 33) published by the U.S. Department of Justice reported the following: On April 28, the Civil Rights Division closed its investigation of the City of Gainesville, Florida under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the city amended its zoning code to remove restrictions [...
Variances Must Be Decided Based Upon Statutory Factors and Not Upon Who Owns the Property for a Particular Time Period
Posted on June 26, 2008The zoning board?s denial of petitioner?s area variance application to enable her to maintain the premises as a two-family residence (a use to which the property had been put since 1967 when she purchased it) where the certificate of occupancy was for a one family residence and the structure did not meet the minimum requirements [...
States Continue to Enact ?Climate Change? Legislation Affecting Local Land Development
Posted on June 26, 2008Yesterday the American Planning Association hosted a 90 minute audioconference addressing current trends in planning law (http://www.planning.org/audioconference/advancedintensive.htm). Among the topics addressed were the recent developments at the federal, state and local levels designed to address issues of global warming and climate change...
SCOTUS Denies Cert in Nevada Takings Case from the Ninth Circuit
Posted on June 25, 2008This week the U.S. Supreme Court denied certiorari in Clark County, NV v. Vacation Village, Inc., letting stand the holding from the 9th Circuit which overturned the Nevada Supreme Court?s interpretation of federal takings law. The opinion from the 9th Circuit Court of Appeals, posted to the blog at: http://lawoftheland...
Court Upholds Tuscon Sign Law
Posted on June 25, 2008Scenic America?s June 2008 Scenic Overlook newsletter reports the following: Arizona’s Pima County Superior Court has ruled against Clear Channel Outdoor in their constitutional challenge to provisions in the city of Tuscon’s sign and land use codes...
Town Acted Appropriately in Land Use Actions That Resulted in Denial of Wal-Mart?s Application for Supercenter
Posted on June 24, 2008The petitioner-owners of certain real property that was the subject of an application to the Town by Wal-Mart, did not have standing to challenge the Board?s denial of Wal-Mart?s application since only Wal-Mart was an aggrieved party. The Court noted, ?Simply because petitioners gave Wal-Mart permission to seek PUDD approval did not make petitioners a [...
Michigan Codifies Planning Laws into Single Uniform Planning Act
Posted on June 24, 2008On March 13, 2008 Governor Jennifer Granholm signed SB 206 authorizing Public Act 33 of 2008, the Michigan Planning Enabling Act (PEA), which unifies Michigan’s three planning acts (municipal, township and county) into a single statute. See, http://www...
SCOTUS Denies Cert in Goldstein v. Pataki ? Atlantic Yards Eminent Domain Case
Posted on June 23, 2008This morning the U.S. Supreme Court denied certiorari in Goldstein v. Pataki, reported on the blog earlier at: http://lawoftheland.wordpress.com/2008/02/04/second-circuit-upholds-use-of-eminent-domain-for-controversial-atlantic-yards-project According to the orders list handed down today, Justice Alito would have granted cert...
Although Planning Board Chair May Have Been Predisposed to Support an Application, He was not Biased in His Participation in the Matter
Posted on June 23, 2008In a controversial action involving the operation of a quarry and a rock crusher, a citizen?s group challenging the planning board?s actions alleged that the Board Chair was biased in that he was predisposed to approving the quarry?s application prior to hearing evidence in the case...
Delay in Permit Approval for Homeless Shelter Associated with Church Did Not Violate RLUIPA
Posted on June 22, 2008Last week the Northern District of Illinois granted summary judgment to the City of Elgin, finding that a delay in approving a special use permit to operate a homeless shelter associated with a church did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA)...
Where State Statute Does Not Require Board to Make Factual Findings it was an Error for the Trial Court to So Mandate
Posted on June 21, 2008The petitioner simultaneously applied to the local legislative body for a rezoning of a portion of its property from residential to business and for a special use permit to allow for the construction of 16 individual units of housing for seniors since, pursuant to the applicable zoning, senior citizen housing was only permitted on property [...
DOJ Issues Notice of Proposed Rulemaking on ADA, Including Standards for Accessible Design
Posted on June 20, 2008According to the DOJ website, On Friday, May 30, 2008, Attorney General Michael B. Mukasey signed proposed regulations to revise the Department?s ADA regulations, including its ADA Standards for Accessible Design. On Tuesday, June 17, 2008, the proposed regulations were published in the Federal Register...
U.S. DOJ RLUIPA Training
Posted on June 19, 2008Yesterday, I attended a training offered by the Civil Rights Division of the U.S. Department of Justice in Boston, MA. Part of the ?First Freedom Project,? the seminar was one of a series of similar workshops offered around the country over the past year to highlight the Department?s role in enforcing federal laws designed to [...
Challenge to Construction of Home Close to Shoreline Time-Barred
Posted on June 19, 2008The petitioners, owners of property adjacent to the lakefront property owned by respondents, the issuance of a building permit to respondents to permit the construction of a home 28 feet from the shoreline on one side and 35 feet from the shoreline on the other side, rather than the required 100 feet setback...
Interpretation of Whether the Use of Property for ?Bottled Water and Related Uses? Includes the Use of Water for Filling Swimming Pools Rests with the ZBA
Posted on June 18, 2008Following the approval by the planning board of a site plan and special use permit allowing for the collection and hauling away by truck of 5,800 gallons of water twice daily from a spring on land owned by the respondents, nearby neighbors who are members of a community association, petitioned the court to annul the [...
Gender Had Nothing to Do with Denial of Property Owner?s Request to Have Her Land Included in Rezoned Area
Posted on June 17, 2008In this federal civil rights suit, alleging both a substantive due process claim and a gender-based equal protection claim, the property owner alleged that her constitutional rights were violated when her property was excluded from a new mixed-use development zone in 2003...
Professor Charles Haar to Deliver Keynote Address at August ALI-ABA Land Use Institute in Boston, MA
Posted on June 17, 2008The 24th Annual ALI-ABA Land Use Institute returns to Boston, MA on August 13-16, 2008 with what promises to provide comprehensive legal analysis on a litany of cutting edge and recurring issues facing land use practitioners who represent all stakeholders in the planning and zoning arena...
MA Supreme Court Holds Town Must Exhaust Administrative Remedies in Challenging State Affordable Housing Inventory
Posted on June 16, 2008The State of Massachusetts enacted ?The Comprehensive Permit Act? (G.L. c. 40B) for the purpose of ensuring a supply of affordable housing by requiring, among other things, that each municipality devote ten percent of its housing units to low or moderate income housing...
Missouri Appeals Court Finds No Standing Where Petitioners Fail to Provide Specific Details as to Injury
Posted on June 15, 2008A Missouri Appeals Court held that citizens lacked standing to challenge the City?s approval of a rezoning application because the citizens failed to demonstrate that the City?s decision will have a direct and substantial impact on their personal or property rights or interests more directly and distinctly than the general public...
Vermont Supreme Court Explains Rule to Determine Whether Commonly Owned Lots Separated by Private Road Constitute a Single Parcel
Posted on June 14, 2008A property owner applied for a permit to subdivide a 2.92-acre lot into two parcels. The applicant also owned a .05-acre lot abutting a pond, that was separated from the larger ?main? lot by a private road used to service the parcels and other camps in the area...
California Voters Defeat Takings Ballot Measure
Posted on June 13, 2008The following news item is excerpted from the American Planning Association?s ?APA Advocate? of June 13, 2008: California voters overwhelmingly defeated Proposition 98, on June 3 by a margin of 61 percent to 39 percent. Voters instead threw support behind Proposition 99...
EPA to Conduct Agency-Wide Environmental Justice (EJ) Review in FY 2009
Posted on June 13, 2008EPA Administrator Stephen Johnson addressed the National Environmental Justice Advisory Council (NEJAC) this week and announced a June 9, 2008 memo sent to senior agency managers ordering agency officials to conduct a first-time review of all programs and policies to ensure that they effectively address EJ concerns...
4th Circuit Court of Appeals Holds that Planning Commission May Limit Public Discussion to Certain Items and May Impose Civility Requirements Without Violating First Amendment
Posted on June 12, 2008The plaintiff, Steinburg, attended a public meeting of the Chesterfield County Planning Commission in 2005. One of the agenda items originally scheduled was a developer?s request that the Commission change the zoning ordinance to permit development of homes with front-facing, rather than side-facing, garages...
D.C. Circuit Court of Appeals Finds Wind Turbines Could Interfere with Airport Radar
Posted on June 11, 2008In an administrative law case, Clark County, Nevada challenged a determination of the Federal Aviation Administration (FAA) that found that the siting of 83 wind turbines on federal land atop a mountain located 10 miles from a proposed new airport (targeted for operation in 2017) would not exceed the federal obstruction standards, would not have [...
21ST Century Land Development Code Now Available
Posted on June 10, 2008Just published by the American Planning Association, 21st Century Land Development Code is a unique complete planning and law model code integrating traditional Euclidean zoning with the current movements promoting green codes, new urbanism, and smart growth...
Ninth Circuit Court of Appeals Finds that Eleventh Amendment Applies to Takings Claims
Posted on June 09, 2008The California focused Land Use Law Blog maintained by Abbott & Kinderman had a recent posting posting by Cori Badgley, Esq. discussing a recent Ninth Circuit Court of Appeals case involving the Eleventh Amendment and takings where the Court dismissed the lawsuit against the Governor of Montana on the grounds that he was immune from [...
New Research Center Launched ? Constitutional Accountability Center
Posted on June 08, 2008The Washington, D.C. based Constitutional Accountability Center (CAC) was launched last week with a panel discussion at the National Press Club. According to its press release, this progressive think tank and law firm grows out of the work of the Community Rights Counsel (CRC)...
Petitioner Lacks Standing Where Alleged Injuries Result from Lack of Proactive Town Action That Could Increase the Value of Petitioner?s Property
Posted on June 08, 2008Standing to challenge decisions of planning and zoning boards and local legislative bodies can be a procedural roadblock to plaintiffs who are hoping for their ?day in court.? Further, in the land use context, many states, such as New York, have different rules for standing depending upon whether a land use action is being challenged [...
Planning Board Powerless to Deny Subdivision Based on Lot Size After ZBA Extended Variance
Posted on June 07, 2008Following the purchase of a 32,000 square foot parcel of property, the petitioner sought and obtained a variance from the zoning board of appeals to subdivide the parcel into two 16,000 square foot lots since the zoning required a 20,000 square foot minimum lot size...
New Hampshire Supreme Court Rules that Enforcement Statute Does Not Provide that Each Day of Violation Constitutes a Separate Offense
Posted on June 06, 2008A property owner was cited for violating a zoning ordinance. She failed to appear at the hearing, where based upon evidence presented at the hearing, she received notification that she had violated the Town?s zoning and building ordinances for constructing a shed on her property without the proper site plan review and survey or certificate...
Limiting Dogs as Pets to No More Than Six at Any One Single-Family Residence Upheld
Posted on June 05, 2008The Pennsylvania Commonwealth Court determined that a Township ordinance regulating the maximum number of domestic pets that can be kept as an accessory use is within the municipality?s general authority to promote the health, safety and welfare of the community...
Homeowner Permitted to Operate a Haunted House in Residential District to Raise Money for Charity
Posted on June 04, 2008The Georgia Supreme Court let stand the decision below which dismissed the City?s request for injunctive relief to prevent the homeowner from operating a haunted house to raise money for charity on his property, since by the time the case got to the Court to review, the homeowner had ceased the operation...
Judge Not Required to Recuse Himself on Boundary Dispute Where He Participated in a Rezoning Request of the Subject Property 7 Years Earlier As Planning Commissioner
Posted on June 03, 2008On the first day of a trial to resolve a boundary dispute, the presiding judge informed the parties that when he was the county attorney he had been ?consulted about a boundary line issue? related to the property of one of the litigants, and he stated that he had ?no recollection with whom [he had] [...
CT Supreme Court Upholds Town?s Authority to Enact Locational Restrictions for Sexually Oriented Businesses
Posted on June 02, 2008The Town of Berlin enacted a Sexually Oriented Business Ordinance that, among other things, included locational restrictions. The Town determined that the plaintiff, who wanted to operate a retail business on property zoned for retail use, for the purpose of selling ?lingerie, club wear, women?s shoes, lotions, oils, greeting cards, gag gifts, as well as [...
Sixth Circuit Court of Appeals Extends Williamson County Ripeness Requirements to First Amendment Land Use Claims
Posted on June 01, 2008The Plaintiffs, owners of two contiguous lots, submitted an application and a preliminary plan to subdivide the lots into three parcels to facilitate the construction of a restaurant, nightclub, and billboard on each respective proposed parcel. The Office of Planning and Development recommended conditional approval of the subdivision subject to terms that the Plaintiff agreed [...
American Bar Association to Consider Model Land Development Act in August
Posted on May 31, 2008Under the leadership of Edward J. Sullivan, immediate past chair of the ABA State and Local Government Law Section, and a member of the Portland, Oregon, firm of Garvey Schubert Barer, the State and Local Government Law Section and the Administrative Law Section created a joint task force to focus on developing fair procedures for [...
CA Appeals Court Says Applicant May Not Depose Commission Members or Staff
Posted on May 30, 2008Sometimes allegations of unethical conduct in land use decision making relate to alleged improper motivation on the part of board members. Where the motivation is not specifically verbalized on the record, parties may have a difficult, if not impossible, time proving the allegation...
Sixth Circuit Court of Appeals Uphold Adult Business Regulation but Not Award of Attorney?s Fees to Non-Government Party
Posted on May 29, 2008After learning that a sexually oriented business was planning to locate in the downtown, the City and various private citizens? groups (e.g., Michigan Decency Action Council, Inc.) mobilized and pressed the City for a regulatory ordinance. When the city council expressed reluctance because of the potential costs of defending the ordinance against litigation, the various [...
Maine Supreme Court Holds that Roads Must Meet Town Standards
Posted on May 28, 2008As part of its proposal to subdivide property in the town, Jade Realty planned to build an access road to a subdivision. The proposed access road would dead-end into an existing public road, Boyce Road, forming a capital letter “T” intersection...
Seattle Mayor Issues Executive Order on Inclusive Outreach and Public Engagement
Posted on May 27, 2008Last month, Seattle Mayor Gregory Nickels issued Executive Order 05-08 directing City departments to perform outreach and public engagement in a manner that reflects the ethnic and cultural diversity of the City. The Order recognizes that a healthy democracy is one that engages and takes into account the racial, cultural and socio-economic complexities of the [...
Constitutionality of Adult Use Ordinance Upheld as District Court Finds Alternative Avenues of Communication Exist
Posted on May 26, 2008In 1994 the Town of Smithtown enacted an adult use ordinance limiting the location of these uses to three zoning districts (shopping center business, light industry, and heavy industrial). The ordinance also set forth an amortization schedule eliminating adult entertainment uses after January 1, 1998 in all other zones...
New Report Offers Strategies to Promote Fair and Healthy Land Use by Incorporating Environmental Justice into Planning and Land Use Regulation
Posted on May 26, 2008Following a series of national workshops for planners and planning officials on integrating environmental justice into land use planning (sponsored by the National Academy for Public Administration, with funding from the Ford Foundation, and organized by the Government Law Center of Albany Law School), the American Planning Association has recently published a comprehensive Planning Advisory [...
District Court Certifies FHA Disparate Impact Issue to Second Circuit Court of Appeals
Posted on May 25, 2008This year marks the 40th anniversary of the Fair Housing Act (FHA) (see http://www.hud.gov/offices/fheo/FHLaws/ for a wealth of information about the FHA from HUD). A number of FHA cases have been making their way through the courts. The following case from the Northern District of New York certifies questions of disparate impacts for the Second [...
Georgetown Center Publishes Takings Report Focusing on Florida and Oregon
Posted on May 25, 2008Hoping to inform the raging public debate in California over Proposition 98, which will be voted on this year, as well as continuing Congressional and state legislative interest in the issue, the Georgetown Environmental Law & Policy Institute has just released their report, ?The Track Record on Takings Legislation: Lessons from Democracy?s Laboratories,? examining the [...
Town Has Legal Authority and Standing To Challenge Granting of Mining Permit by State DEC
Posted on May 24, 2008Following a denial of the Town?s request to the State Department of Environmental Conservation (DEC) to revoke a Mined Land Reclamation Permit that the agency had issued to a hauling company, the Town brought an Article 78 proceeding alleging that the State acted arbitrarily and capriciously in its denial of the Town?s request...
Summer Reading List ? A Better Way to Zone: Ten Principles to Create More Livable Communities
Posted on May 24, 2008Planner Donald Elliott has written a new book - A Better Way to Zone: Ten Principles to Create More Livable Communities, full of proposed solutions to building livable American cities. Elliott explains how antiquated zoning laws have partly led to the woes of the housing market and the top-down approach to municipal growth...
S.D. of Illinois Finds Lack of Standing to Challenge Denial of Variance and Permit For Aircraft Hangar
Posted on May 23, 2008The directors of Sullivan Field, Inc. sought a variance and a permit to build a hangar in a recreational-use airfield to protect recreational aircraft from weather and vandals. The requests were denied since the property was located in a drainage and levee district and FEMA would not allow it...
In Annexation Effort Senior Housing Outweighed the Public Interest in Tax Ratables
Posted on May 22, 2008In some states, as part of the process to annex territory, the annexing municipality must prove that such move is in the overall public interest. There are often competing public interests when one municipality is persuaded by a developer to support the annexation of land from the adjacent municipality...
Animal Rescue Operation Does Not Constitute ?Kennel? Under Zoning Ordinance
Posted on May 21, 2008West Nantmeal Township in Pennsylvania recently discovered its zoning code did not cover a situation where, in a residential neighborhood, a homeowner was keeping 70 cats and 2 dogs as part of a rescue operation she founded, until a home could be found for the animals...
9th Circuit Court of Appeals Overturns District Court and Damages Award to Developer, Finding City Did Not Violate Equal Protection
Posted on May 20, 2008Plaintiff North Pacifica sought to develop a 4.3 acre parcel for a proposed condominium project. After filing its initial application in August 1999, in December 2001 North Pacifica filed a lawsuit claiming that the City unreasonably imposed processing delays in violation of substantive due process and equal protection...
Mere Existence of a Zoning Ordinance Does Not Create a Special Relationship with Residents
Posted on May 19, 2008Upset with the construction on a neighboring lot, the plaintiff filed a lawsuit against the Village, alleging negligence and breach of contract for failing to take any action to stop the construction which the plaintiff maintained was in violation of the zoning regulations...
NY Appellate Court Dismisses Petition for Failure to Exhaust Administrative Remedies
Posted on May 18, 2008Where petitioners, adjacent property owners, sought to direct the Town zoning officer to revoke a building permit allowing the respondent to construct a single-family residence alleging that the proposed construction violates the minimum front setback requirements, the Appellate Court dismissed the action since the petitioners failed to first seek a review by the zoning board [...
Wind Energy Facilities Law Adopted by the Town of Hamlin (New York)
Posted on May 18, 2008Local governments in wind resource rich areas across the country are confronting a host of zoning challenges related to the siting of wind turbines in the municipality. Often, municipalities have been slow to proactively catch up to the green power movement, not considering how to best regulate the turbines until interest is first expressed by [...
Applying Town?s Definition of Family, Prosecutors Failed to Carry Their Burden of Proof that Girlfriend, Her Son and Two Veteran Friends Were Not Defendant?s Non Traditional Family
Posted on May 17, 2008In this New York case, a single family residential use was permitted in the zoning district, but a rooming house was not. The Court had to decide whether all of the people residing in the house met the definition of ?family? or whether the living arrangement constituted a ?rooming house...
NY Appellate Court Says Failure to Name Applicant in a Lawsuit Challenging Granted Use Variance was Fatal
Posted on May 16, 2008In protracted litigation following the granting of a use variance by the NYC Board of Standards and Appeal (BSA) to allow 160 Imlay Real Estate (Imlay) to change the use of a building in an M2-1 zoning district which permits manufacturing, commercial and retail use, to permit a residential use...
CA. Supreme Court Says City Generally Not Liable for Damages From Injunction It Sought
Posted on May 15, 2008In 1994, Manta opened a comedy nightclub in the city?s CR-3 regional commercial zone. That was a permitted use in the zone. Six months later, Manta converted the club to an adult cabaret featuring topless entertainment. Adult businesses were not a permitted use in the zone...
Mo. Appellate Court Finds Summary Judgment Affirming Blight Determination and Approval of TIF is Improper Where Genuine Disputes Concerning Facts Exist
Posted on May 14, 2008In 1999, the city adopted a finding of blight, a redevelopment plan, and tax increment financing (TIF) for 1,640 acres of farmland. The trial court granted summary judgment in favor of the city. The appeals court remanded, holding that the existence of genuine issues of fact made summary judgment inappropriate...
PA Commonwealth Court Rules Sex Buffet is Not an Accessory Use
Posted on May 13, 2008Señor Rattler’s, a restaurant, operated under the terms of a 1988 variance that prohibited entertainment or a dance floor on the premises, and further provided that the premises would not be used for a club. In 2000, after MAJ had acquired the property, MAJ sought and received a use permit to operate a restaurant with [...
WI Appeals Court Finds Denial of Rezoning and Conditional Use Permit Improperly Based on Owner?s History and Concerns About What Might Happen, Rather Than on Legal Criteria
Posted on May 12, 2008The owner of land adjacent to the town industrial park applied for rezoning from the general industrial to the heavy industrial classification with a conditional use permit for outside storage of materials and equipment. The board was warned about the owner?s background and ongoing legal disputes with the county...
New Report of Initiatives & Referenda Identifies 114 Recent Ballot Measures on Eminent Domain, Takings and Big Box Development
Posted on May 11, 2008A new report by Phyllis Myers entitled, Direct Democracy and Land Use: Eminent Domain and Big Box Development at the Local Ballot Box, was recently published by the Initiative and Referendum Institute (IRI), USC-Caltech Center for the Study of Law and Politics and USC School of Law...
Appellate Court Upholds Zoning Board?s Interpretation of How Water Rights Lines are to be Calculated
Posted on May 10, 2008The petitioner, owner of three adjacent parcels, operates a marina on Canandaigua Lake, and challenged the zoning board of appeals determination to allow the adjacent parcel owner to build a dock off of the shoreline. The petitioner asserted that pursuant to the Canandaigua Lake Uniform Docking and Mooring Law (UDML), a dock, such as the [...
Court Directs ZBA to Allow Petitioners to Maintain Nonconforming Use Despite Failure to Obtain Building Permit in the First Instance
Posted on May 09, 2008The petitioner?s application for certain setback and area variances needed to maintain an existing cabana and retaining wall was denied by the zoning board of appeals. Both the cabana and the retaining wall were completed prior to the Town amending its zoning ordinance, which makes the uses nonconforming since the cabana height is 14...
Planning Board?s Denial of Subdivision Upheld by NY Appellate Court as Rational Acknowledging Board Had a Close, Fact-Specific Choice
Posted on May 08, 2008An application for a proposed three lot subdivision was denied by the planning board following a public hearing where many neighbors and adjacent landowners expressed concerns over potential drainage and flooding problems. The petitioner alleged that the planning board had previously issued a negative declaration pursuant to the required environmental review finding no significant impact [...
NY Appellate Court Upholds Procedure for Planned Development District as a Floating Zone
Posted on May 07, 2008Landmark Development Group, LLC applied to the Town Board to have approximately 21