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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

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

Federal District Court Dismisses Hindu Group?s Equal Terms Claim Under RLUIPA, and Rules on a Series of Other Claims of Religious Discrimination Over Township?s Conditions on Approval

Posted on November 22, 2010
Plaintiffs, a Hindu religious group known as ACMEC, purchased a plot of subdivided land containing a restrictive covenant limiting future development to one crosshatched area, for the purpose of constructing a temple. In 2002,the Zoning Board granted plaintiffs a special exception to construct 5,000 square foot church, including auxiliary living areas, bathrooms, facilities and other [...

Federal District Court Holds Size Restriction on Temporary [Political] Signs Does Not Violate First Amendment

Posted on November 21, 2010
Kolbe wanted to post a 32-square-foot sign, supporting the Republican candidate for governor, on the corner lot containing his home. He sought an injunction to prohibit enforcement of a zoning ordinance that limits the size of temporary signs in residential zones, including political signs, to eight square feet, asserting that the law violated his right [...

NY Appellate Court Upholds Architectural Review Board?s Approval of Fence

Posted on November 20, 2010
Following approval by the Architectural Review Board for a fence that was to be constructed between petitioner?s property and that of Windsor Digital Studio along a common side yard boundary, the petitioner appealed the decision. The court noted that judicial review of the Board?s determination is limited to determining whether the action was illegal, arbitrary [...

MN Appeals Court Holds City is Not Liable for Issuance of Building Permit by Mistake

Posted on November 19, 2010
A city planner issued a permit to demolish an existing house and build a new duplex on a 6,000 square-foot lot, based on a checklist of features. The planner mistakenly believed that the existing structure was a duplex, but was not misled by the owners...

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Federal District Court in NY Dismisses Taking Claim on Ripeness Grounds

Posted on November 18, 2010
Plaintiff resided in a single-family dwelling on a 150-acre parcel of land he owned, and he wanted to a build a second single-family dwelling on the property. Plaintiff applied for a building permit, which was granted. As a result, he spent about $450,000 to construct the second dwelling...

New York City Community Gardens ?Shall? or ?May? be Preserved

Posted on November 17, 2010
In September 2010, the New York City Departments of Parks and Recreation (DPR) and Housing Preservation and Development (HPD) promulgated new rules governing the 250-odd community gardens under their jurisdiction. The bi-agency program that directly oversees the gardens, aptly named Greenthumb, also assists non-city-owned gardens with basics such as tools and low cost seeds...

Call for Papers ? Fifth Conference of the International Academic Association on Planning, Law and Property Rights

Posted on November 17, 2010
The fifth conference of the International Academic Association on Planning, Law and Property Rights (PLPR) will be held between 26-28 May 2011 at the Faculty of Law, University of Alberta, in Edmonton, Canada. The conference brings together scholars from around the world to present innovative research and engage in interdisciplinary exchange related to the theme [...

11th Circuit Court of Appeals Upholds Zoning Official?s Denial of Applications Where Former Official Did Not Sign a Certificate of Compliance

Posted on November 17, 2010
Defendant zoning official was sued for alleged tortious interference because she denied various zoning permit applications. Plaintiff submitted six zoning applications to be reviewed for compliance, and five were denied by Defendant. This followed a review by a former zoning official who had allegedly recommended approval of the permits, but never put such in writing...

MA Supreme Court Rules that Zoning Boards Have Limited Authority to Impose Conditions on Comprehensive Permits for Affordable Housing

Posted on November 16, 2010
The Supreme Judicial Court of Massachusetts found that the scope of a zoning board?s authority under Mass. Gen. Laws ch. 40B, §§ 20?23 to make a comprehensive permit conditional for moderate and low income housing is limited and that the Housing Appeals Committee (HAC) have authority, under § 23 to review and strike, where appropriate, [...

Alabama Supreme Court Upholds County Subdivision Regulations Against Claim of Vagueness

Posted on November 15, 2010
The regulations in question provided that land that is to be subdivided shall be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace. Further, land that is found unsuitable for subdivision or development due to flooding or other features which [...

NY Appellate Court Upholds Denial of Area Variance For Parking on Front Lawn

Posted on November 14, 2010
Since approximately 1978, the petitioner has parked his vehicle on his front lawn. He contends that, around that time, he applied for and obtained from respondent City an area variance and/or a permit for a curb-cut enabling him to use his front lawn for parking...

Illinois Appeals Court Upholds City?s Location Limitation on Churches Finding it was neither Facially Unconstitutional nor Invalid As-Applied

Posted on November 13, 2010
The church wanted to add on to its facilities, extend its parking lot, add a driveway, and add a covered drop-off entrance. To get the necessary permits for this project, the church sought either a site-plan review from the city’s zoning board of appeals (which was the easiest route) or, alternatively, a special use permit [...

Federal District Court Denies Injunction Request for State Court Proceedings Challenging Permit Issued Pursuant to Settlement Agreement Approved by Federal Court

Posted on November 12, 2010
Industrial Tower and Wireless, LLC (?ITW?) and the Town of Epping jointly moved to enforce the U.S. District Court?s order approving their settlement of ITW?s claim that the Town violated the Telecommunications Act (?TCA?). Both ITW and the Town had reached a settlement which was approved by the Court providing ITW with a building permit [...

US Fish and Wildlife Service Issues Report and Strategy to Address Local Impacts of Climate Change

Posted on November 11, 2010
In September 2010, the US FWS issued a report, Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerating Climate Change, outlining their strategic plan for addressing climate change. The plan has three major goals ? adaptation, mitigation and engagement (stressing partnerships with states and NGOs)...

Nevada Supreme Court Upholds Restrictive Covenant Prohibiting Horses on Certain Property Where the Zoning Would Have Allowed Such Use

Posted on November 11, 2010
The Supreme Court of Nevada held that the district court did not err when it concluded that appellants? property was classified under the Covenants Conditions & Restrictions (CC&R) as property prohibited from housing horses and issued a permanent injunction enjoining appellants from keeping horses on their property...

Utah Supreme Court States Reasonably Debatable Standard Applies to Rezoning Decision, and There is No Protectable Property Interest in Alleged Representations by City that Application Would Be Approved

Posted on November 10, 2010
The Petersens, who own 20.84 acres of land in Riverton City, entered into a contract with a developer to sell the property contingent on the ability to rezone it. However, during the public hearing to consider the rezoning request, while the Planning Commission noted that the proposed change would be consistent with the City?s General [...

Third Circuit Court of Appeals Concludes that Unsuccessful Billboard Applicant Lacks Standing For Failure to Challenge Secondary Restrictions

Posted on November 09, 2010
An unsuccessful billboard applicant brought action against the township, challenging the constitutionality of the township?s billboard ordinance. The Third Circuit Court of Appeals held that the applicant?s alleged injury was not redressable and therefore he lacked standing to challenge the billboard ordinance...

Readers Invited to Access Culture of Corruption Materials

Posted on November 09, 2010
The following post is courtesy of Frank Schnidman, Esq., an organizer of last week?s conference focused on municipal ethics with an emphasis on ethics in land use: The School of Urban and Regional Planning at Florida Atlantic University and other cosponsors hosted the Fourth Annual “South Florida’s Culture of Corruption” Conference in Boca Raton on [...

NY Releases Interim State Climate Action Plan for Public Comment

Posted on November 09, 2010
Pursuant to Executive Order 24 (issued in 2009) the Interim New York State Climate Action Plan was released today, which, among other things, provided a blueprint for reducing greenhouse gas emissions 80 percent by 2050. The plan contains strategies for refocusing the state?s manufacturing infrastructure to support clean energy policies, as well as modernizing and [...

CA Appeals Court Finds City Council Abused its Discretion in Denying Adult Cabaret

Posted on November 08, 2010
Madain, applied for a permit to open an adult oriented cabaret in the city. The application was denied on the grounds that the cabaret would be placed three hundred feet of a planned church, which would not be allowed under the city?s ?sensitive use ordinance...

Federal District Court Concludes Company that Constructs Wireless Towers has Standing Under TCA, that Claim was Ripe and Sufficient Evidence to Demonstrate a Gap in Service Exists

Posted on November 07, 2010
The Township of Lower Makefield?s code requires a variance to in certain areas for the placement of a wireless telecommunication facility. Plaintiff, Liberty Towers, applied for a variance and was denied its request despite evidence shown that both Sprint and T-Mobile have significant gaps in wireless communication in the area and that construction of the [...

Texas Supreme Court Rules that Open Beaches Act Does Not Create a Rolling Easement

Posted on November 07, 2010
Professor Matt Festa provided an excellent summary on the Land Use Law Professors Blog of a recent Texas Supreme Court opinion dealing with the Texas Open Beaches Act, and has given Law of the Land to reprint it here: The Texas Supreme Court issued its opinion this week in Severance v...

Two New Articles Posted on Ethics in Land Use

Posted on November 07, 2010
Law of the Land readers may be interested in two new articles posted that address ethical dilemmas in land use. The first one, ?No Protectable Property Interest in Making Land Use Decisions and Other Ethics in Land Use Issues 2009-2010,? from The Urban Lawyer, is my annual review of reported decisions and opinions focused on [...

NY Appellate Court Finds State Law Preempts Land Use Conviction For Family Day Care

Posted on November 06, 2010
The defendant was charged for violating the Riverhead Town Code, when she converted a one family home into a day care on the first floor and a residential rental unit on the second floor. Defendant was granted her motion to dismiss on the ground that there was a legal impediment to conviction since the prosecution [...

Federal District Court Judge Rules that Certain Prescriptive Provisions of the Albuquerque Energy Code Preempted by Federal Statute

Posted on November 05, 2010
In ongoing litigation, a federal district court judge ruled on a motion for a permanent injunction holding that certain prescriptive portions of the Albuquerque Energy Conservation Code are in fact preempted by federal statute. However, the Court denied the motion with respect to the Code?s performance-based provisions, including LEED standards, finding that the plaintiffs had [...

Nebraska Supreme Court Finds No Standing to Challenge Annexation and No Violation of Open Meetings Law Based on Notice Provided and Tour of Ethanol Facility Followed by Dinner with Some Board Members

Posted on November 04, 2010
This case involved the development of an ethanol plant on a previously vacant plot of agricultural land, known as Redevelopment Area #3, located 1/8th of a mile from plaintiff Schauers? home. The City of Ord, Nebraska declared Redevelopment Area #3 blighted, and annexed the land to enable the use of tax increment financing (TIF) for [...

TN Appeals Court Rules that Side Bar Conversations by City Officials do not Estopp City Council from Refusing to Take Action

Posted on November 03, 2010
The plaintiff, Stoneybrook Golf Course, filed suit against the defendant, City of Columbia, for their refusal to take prompt action on their application in accord with verbal commitments by city officials. The trial court dismissed the complaint on the proceedings, and the Court of Appeals of Tennessee affirmed...

CT Appeals Court Rules Commission Denial of Affordable Housing Site Based on Insufficient Evidence

Posted on November 02, 2010
The defendant, Planning and Zoning Commission of the Town of North Haven (?Commission?), appealed the decision of the trial court reversing their denial of the plaintiff?s, CMB Capital Appreciation (?CMB?), application for a site plan approval for affordable housing development...

Federal District Court in Colorado Dismisses Multiple RLUIPA Claims

Posted on November 01, 2010
At issue was a parcel of land the plaintiff, Grace Church of Roaring Fork Valley, bought in the town of Basalt, which was designated by the County as AFR-10, which permitted agricultural, forestry and residential uses, with a minimum lot size of 10 acres...

NY Appellate Court Finds Abandonment of a Legal Nonconforming Use of Property for Gas Station and Repair Shop

Posted on October 31, 2010
The plaintiff, Emery Properties, filed a petition against the defendant, Patricia Baranello, for denial of a permit to build or install, with the purpose of converting space from an auto repair shop to a retail store. The permit was denied by the Planning Department of Oyster Bay as certain procedures were not followed, and the [...

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