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Real Estate & Property Law

Law of the Land

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

Post Frequency: 4.4/day

Last Entry: October 28, 2020 at 16:28:04

Land Use Accountability Project Launched by Center for Public Integrity

Posted on August 09, 2008
The 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, 2008
On 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, 2008
The 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, 2008
A 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...

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Zoning Board?s Interpretation of Ordinance Not Upheld Where it Was Contrary to Clear Wording

Posted on August 06, 2008
A 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, 2008
The 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, 2008
In 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, 2008
After 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, 2008
Effective 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, 2008
So 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, 2008
A 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, 2008
The 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, 2008
The 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, 2008
The 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, 2008
The 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, 2008
The 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, 2008
Introduced 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, 2008
A 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, 2008
The 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, 2008
In 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, 2008
Montgomery 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, 2008
Thunderbird 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, 2008
In 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, 2008
Seventeen 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, 2008
A 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, 2008
The 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, 2008
Following 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, 2008
Attorney 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, 2008
An 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, 2008
In 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...

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