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Real Estate & Property Law

Law of the Land

Forum for the discussion of current laws, policies and decisions that affect the use of land. Highlights new court decisions, new state and federal laws, and actions at the local government level that guide and/or impact land use and community development.
By atricia Salkin

Post Frequency: 12.6/day

Last Entry: June 16, 2013 at 18:48:48

VA Sup. Court Overturns Circuit Court?s Decision to Grant Variances in Historical District

Posted on June 16, 2013
James and Christine Garner (Garner) purchased a lot at 122 Prince Street in an historic district in Alexandria, VA. They designed a single family home to construct on the site and sought side and rear yard setback variances. The property the Garner?s sought to build on adjoined to the west a structure that is one […]

NY Appellate Court Upholds Area Variances for Pizza Parlor

Posted on June 15, 2013
Manhasset Pizza, LLC (Manhasset Pizza) desired to convert a vacant storefront into a 45-seat full service dine-in restaurant on Plandome Road in the Town of North Hempstead. The storefront had previous been occupied as a gift shop, a dry cleaning establishment and a take-out food store...

Missouri Appeals Court Holds Conditions on Special Use Permit for Pawn Shop Must Relate to the Proposed Use and May Not Be Imposed to Eliminate a Nonconforming Use

Posted on June 14, 2013
Curry Investments sought a special use permit to establish a pawn shop on their property. The BZA determined it had met all the criteria necessary to obtain a special use permit, but nonetheless, conditioned approval of the special use permit on Curry removing two nonconforming outdoor advertising signs that it was leasing...

Fed. Dist. Court in Texas Upholds Ordinance Regulating Classifications of Gentlemen?s Clubs

Posted on June 13, 2013
In 2003, the City of San Antonio enacted an ordinance regulating gentlemen?s club and in 2005 the City adopted another ordinance prohibiting nude and topless dancing in public places and requiring permits for ?human display establishments?. The ban on nude dancing was challenged in 2009 by operators of adult entertainment clubs, alleging the ban amounted […]

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New Hampshire Supreme Court Finds Registration Sign for Resort is a Directional Sign and Entitled to Sign Exemption Under Local Ordinance

Posted on June 12, 2013
River Run Company, Inc., owner of the Attitash Mountain Village resort in Bartlett, New Hampshire, applied in September 2009 for a permit to place a sign along a local highway to advertise suites at the resort. River Run’s application was approved by the Town of Bartlett Zoning Board of Adjustment in January 2010, and the […]

DE Supreme Court Reverses Adjustment Board?s Denial of Special Use Exception to Erect a Cell Tower

Posted on June 11, 2013
Cingular (which became AT&T during the pendency of this litigation) applied to the board of adjustment for a special use exception to construct a 100-foot cell tower. The exception would have been unnecessary if Cingular had chosen to co-locate its telecommunications equipment on existing, freestanding towers, antenna, monopoles, buildings, water tower/tanks and other similar structure...

Second Circuit Court of Appeals Holds that Failure to Give Notice of Amendments to Zoning Laws to Landowners Did Not Violate Procedural Due Process

Posted on June 10, 2013
This case involves the City of Middletown, New York?s 2009 amendment to zoning laws that prohibited nonconforming uses of non-owner-occupied multiple dwellings in various zoning districts. The plaintiffs filed suit against the City alleging the change violated their due process rights guaranteed by the fourteenth amendment of the United States Constitution because they were not […]

CA District Court of Appeals Upholds Local Zoning Ordinance Regulating Medical Marijuana Dispensary and Finds Owner Had No Vested Right to Use

Posted on June 09, 2013
This case deals with a city?s attempts to prevent the operation of a medical marijuana dispensary within its limits. In 1996, voters in California approved Proposition 215, otherwise known as the Compassionate Use Act (CUA), which provides immunity for physicians who recommend marijuana to a patient for medical use and immunity for the patient as […]

NJ Appeals Court Upholds Zoning Board?s Determination that Nonconforming Use of Body Piercing was Abandoned

Posted on June 08, 2013
This case involved a lessee?s desire to operate a body piercing business along with a tattoo parlor in ?Zone A,? the amusement section of the Boardwalk in Wildwood, New Jersey. The property involved in the dispute had been used as a tattoo and piercing parlor since 1991 when it was known as ?24th Street Tattoos...

RI Supreme Court Holds Zoning Board Violated Open Meetings Act by Failing to Provide Adequate Notice to the Public

Posted on June 07, 2013
In November of 2008, the City of Newport received a letter from Congregation Jeshuat Israel requesting an extension the time to make improvements to its property that had previously been approved on the condition that the work would be completed in two years...

Fed. Dist. Court in FL Invalidates County Corridor Preservation Scheme

Posted on April 14, 2013
Hillcrest Property LLP v. Pasco County, 2013 WL1502627 (M.D. Fla.) involved defendant?s ?Right of Way Preservation Ordinance? as a means of avoiding payment to landowners through whose property designated existing and future transportation corridors ran...

NY Appellate Court Upholds One Special Exception but Voids Another as Well as Use Variance

Posted on April 13, 2013
Following the granting of special exceptions and use variances for an application for an autobody business located on a split-zoned parcel, which allowed it to add an addition to the existing premises as well as provide for parking on a portion of the property zoned residential, neighbors appealed...

NY Appellate Court Upholds Zoning Board Determination that Racing Pigeons and a Coop For 40 Pigeons Are Not an Accessory Use

Posted on April 12, 2013
The Village zoning board of appeals determined that the petitioners proposed use of a coop in his backyard for the housing of about 40 racing pigeons did not qualify as ?a reasonable number of household pets,? under the applicable zoning code. In reaching this determination, the board considered evidence as to how the birds would […]

Conn. Supreme Court Holds Deck was Not a ?Building? for Zoning Enforcement Purposes

Posted on April 11, 2013
The Tines purchased a lakefront property in Lebanon, Conn., in 1999 and obtained a variance to build a single-family residence which would extend 35 feet into a prohibited setback area designed to preserve the lake’s water quality. The variance application did not include any plans for a deck...

NY Appellate Court Upholds Denial of Area Variances and Board?s Interpretation of Ordinance

Posted on April 10, 2013
Since zoning boards have broad discretion in considering requests for area variances, where the relevant statutory factors are weighed and where the record demonstrates, such as in this case, that the board had a rational basis for the denial, the Court will uphold the zoning board?s determination...

NY Appellate Court Upholds ZBA Determination that Deck for Outside Dining Was Incidental to Marina Use

Posted on April 09, 2013
The Town of Hempstead challenged a determination of its zoning board of appeals which granted a special permit to allow the use of a deck above a waterway for the outside consumption of food subsequent to the Town?s refusal to grant a permit for such use...

2nd Cir. Court of Appeals Find No Underlying Property Interest in Certificate of Occupancy Due to Discretion to Withhold the CO Pending Violation on the Property

Posted on April 08, 2013
CCS.com USA, Inc. (?CCS?) appealed from an award of summary judgment in favor of the Town of Brookhaven and various town officials on CCS’s procedural due process claim for damages under 42 U.S.C. §§ 1983 and 1988, and its claims for a declaratory judgment and equitable relief...

NY Appellate Court Remands Alleged Malpractice Case on Zoning Advice to Determine Causation

Posted on April 07, 2013
Arbor Realty Funding, LLC (?Arbor?) brought a legal malpractice action against its former attorneys as a result of the attorneys providing erroneous legal advice. The trial court dismissed and an appeal ensured. The defendants argued that their allegedly erroneous legal advice relating to zoning issues did not proximately cause its client?s loss on defaulted loans […]

VA Sup. Court Finds that Illegal Building Permit Fees Paid Voluntarily Need Not Be Refunded

Posted on April 06, 2013
Blue Ridge Shadows, LLC (?BRS?) was D.R. Horton, Inc.?s (?Horton?) predecessor in title. BRS, a real estate development company, petitioned the Board of Supervisors of Warren County (?Board?) to rezone a tract of land from agricultural to suburban residential...

NY Appellate Court Finds Claim of Lack of Consistency Time-Barred but Site Plan Review Challenge was not Barred

Posted on April 05, 2013
The Maddalonis? own residential property in the Village of Head of the Harbor (?Village?) adjacent to Stony Brook Harbor. In 2007, they submitted a site plan application seeking to demolish the existing residence and construct a new single-family residence with a pool and pool house...

NY Appellate Court Upholds ZBA Determination that Mulching Business Was Not a Permitted Use in Schools and Cemeteries Zone

Posted on April 04, 2013
Oakwood Property Management, LLC (?Oakwood?) operates a landscaping business in the Town of Brunswick. In 2002, Oakwood began to expand its business after it obtained site plan approval by purchasing three neighboring parcels of land zoned for industrial, agricultural, and school and cemetery uses respectively...

VA Supreme Court Finds No Vested Rights Where Operators of Entertainment Establishments Never Had a Legal Right to Serve Alcohol in the First Instance

Posted on April 03, 2013
Norfolk 102, LLC and Norfolk 302, LLC operate Bar Norfolk and Have a Nice Day Café, respectively, in Norfolk, Virginia. In 2009, the City Council of Norfolk revoked a blanket special exception allowing the Bar and Café to operate as ?Entertainment Establishments? and serve alcohol, and also denied their applications for special exceptions to continue […]

South Carolina Supreme Court Upholds BZA decision on Telecom Tower Siting Finding the Board Acted on Competent Evidence

Posted on April 02, 2013
In 2006, the Town of Mount Pleasant (?the Town?) rezoned property on Whipple Road adjacent to the Candlewood residential subdivision from an R-1 residential zone to an Economic Development zone. The property was owned by South Carolina Electric and Gas, and leased to SCANA Communications, which hoped to build a telecommunications tower there...

MA Supreme Court Holds that Demolition Referenced in a Variance Need Not Be Completed Within One Year

Posted on April 01, 2013
In 2005, C.B.L. Realty Trust applied to the Fall River, Mass. Zoning Board of Appeals for a variance to demolish Global Glass structures on its property and subdivide the parcel into 20 residential lots for use as single family homes. On issuing the variance, the board also gave permission to CBL to demolish the Global […]

Louisiana Appeals Court Finds Parking Lease Ordinance Did Not Violate RLUIPA

Posted on March 31, 2013
In 2002, the Parish of Jefferson, Louisiana, passed a parking ordinance which required businesses in the Commercial Parkway Overlay Zone using curbside parking in front of their locations to sign a lease to pay the Parish for use of its parking right-of-way...

WA Sup. Ct. Upholds Dismissal of Inverse Condemnation and Nuisance Claims Following Siting of Substation and Resident Concerns over EMFs

Posted on March 30, 2013
Several residents, including named plaintiff Catherine Lakey, owned property abutting a parcel owned by Puget Sound Energy, Inc. (PSE) in the City of Kirkland, Washington. PSE had operated an electrical substation there for over 50 years, and constructed a new substation on the parcel in 2008, with additional transformers to provide redundancy...

NY Federal Dist. Court Finds Ongoing State Criminal Prosecution for Zoning Violation Requires Abstention from Ruling on Federal 1983 Selective Enforcement Claim

Posted on March 29, 2013
Darren and Marlene Thomas, individuals of African American and Puerto Rican descent, respectively, purchased a Hicksville, NY, home in 2007. The home was set up as a two-family home and had been operated as such since 1922, prior to the Town of Oyster Bay’s enactment of a zoning ordinance designating the neighborhood in which the […]

NJ Appellate Court Upholds Board?s Finding at a ?Blade? Was Not a Sign and that Banquet Facility Was Allowed Under Code that Permitted Restaurants; and Upholds Trial Court?s Finding Overturning Use Variance for Wine Shop

Posted on March 28, 2013
Hoping to use three separate structures on a 9-acre lot to build and operate a Hyatt-brand hotel, with a restaurant and banquet facility and a wine shop, AVN Holdings, Inc. applied to the Township of Cranbury Board of Adjustment (?the Board?) for preliminary and final site plan approval, with several exceptions, and a use variance [...

AZ Supreme Court Holds Party Is Not Required to Exhaust Administrative Remedies When Such Pursuit is Futile and Remands to Lower Court to Determine Whether Entire Manufactured Home Park or Only Each Space is Entitled to Nonconforming Status

Posted on March 27, 2013
Stagecoach Trails MHC, LLC (?Stagecoach?) operated a 50-space manufactured home park in Benson, Arizona. In 1998, the City amended its zoning regulations, increasing the size and setback requirements for spaces in a manufactured home park. Although it was not going to be applied retroactively, the City maintained that it would apply the new regulations when [...

7th Circuit Dismisses Claim of Racial Discrimination Based on Rezoning Denial for Lack of Evidence

Posted on March 26, 2013
Parvati Corporation owned a hotel in Oak Forest, Illinois. Parvati sought sell the hotel in order to convert it to a retirement home, likely occupied primarily or exclusively by black people. The City refused to permit the sale, so Parvati sued alleging racial discrimination in zoning and that the City?s zoning ordinance was unconstitutionally vague...

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