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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

With Variance Request Zoning Board May Consider Evidence of Conformity of Nearby Residences

Posted on July 16, 2008
In 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, 2008
Following 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, 2008
The 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, 2008
This 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...

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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, 2008
The 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, 2008
Following 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, 2008
This 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, 2008
Landowners 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, 2008
In 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, 2008
The 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, 2008
Last 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, 2008
Following 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, 2008
In 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, 2008
The 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, 2008
In 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, 2008
In 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, 2008
The 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, 2008
Last 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, 2008
Hariri, 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, 2008
In 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, 2008
The 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, 2008
The 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, 2008
Yesterday 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, 2008
This 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, 2008
Scenic 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, 2008
The 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, 2008
On 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, 2008
This 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, 2008
In 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, 2008
Last 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)...

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