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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

Constitutionality of Adult Use Ordinance Upheld as District Court Finds Alternative Avenues of Communication Exist

Posted on May 26, 2008
In 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, 2008
Following 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, 2008
This 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, 2008
Hoping 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 [...

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Town Has Legal Authority and Standing To Challenge Granting of Mining Permit by State DEC

Posted on May 24, 2008
Following 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, 2008
Planner 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, 2008
The 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, 2008
In 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, 2008
West 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, 2008
Plaintiff 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, 2008
Upset 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, 2008
Where 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, 2008
Local 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, 2008
In 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, 2008
In 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, 2008
In 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, 2008
In 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, 2008
Señor 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, 2008
The 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, 2008
A 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, 2008
The 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, 2008
The 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, 2008
An 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, 2008
Landmark Development Group, LLC applied to the Town Board to have approximately 210 acres zoned for one-acre residential approved as a planned development district (PDD). The developer plans to build 170 lots on about 55 of the 210 acres, with the remaining land to be open space owned by a homeowner?s association...

New Hampshire Supreme Court Upheld Dismissal Where Petitioners Failed to Exhaust Administrative Remedies

Posted on May 06, 2008
Ordinarily, challenges to the issuance of decisions regarding building permits are to be made to the zoning board of adjustment prior to taking an appeal to the superior court. In the present case, the McNamaras alleged that they purchased their home not knowing that a building permit had been issued to the Hershes on the [...

HUD Study Concludes Extensive Subdivision Requirements Limit Affordable Housing

Posted on May 05, 2008
The April 2008 issue of Research Works, published by HUD, highlights a study HUD?s Office of Policy and Development commissioned to determine whether subdivision regulations that dictate infrastructure and site requirements pose unnecessary barriers to affordable housing...

S.D. Attorney General Opines that Economic Development is a Public Purpose to Justify Sale of State Land

Posted on May 05, 2008
On April 28, 2008 the South Dakota Attorney General issued an opinion determining that it is appropriate for a state agency to sell land to a city or local economic development organization so that the land may be leased to a private company for economic development...

New Hampshire Supreme Court Finds that Individual Condo Unit Owners Have Standing to Challenge Land Use Determination

Posted on May 04, 2008
The Johnsons own a unit at the Pine Harbor Condominiums (PHC). Sheepshead Bay acquired an adjacent lakefront parcel to PHC separated from the Johnson?s unit by one common area. Sheepshead proposed to replace an existing seasonal cottage with a larger year-round dwelling about 500 feet from the Johnson?s property and 200 feet from the boundary [...

E.D. Michigan Denies City?s Summary Judgment Request, Indicating Problems With the Sign Ordinance

Posted on May 03, 2008
Marras was notified by the City ordinance enforcement officer on a number of occasions over a two year period that he was in violation of the zoning regulations regarding sign postings and placements. Specifically, he was informed that the parking of a vehicle advertising his business in front of his store, as well as the [...

NY Appellate Court Determines Petitioners Lack Standing to Challenge Site Plan Approval and Environmental Review

Posted on May 02, 2008
Following a negative declaration finding no impact on the surrounding environment by the proposed project, the planning board issued site plan approval for the construction of seven light industrial buildings on a 36.68-acre parcel of undeveloped land...

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