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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

Livable Communities Act moves forward in Congress

Posted on October 30, 2010
On September 23, 2010 the House Financial Services Committee held a hearing on the Livable Communities Act (H.R. 4690, introduced by Representative Ed Perlmutter), taking an important step in the movement of this bill. The Act would fund regional planning to make communities more livable and eliminate barriers to federal agencies working together to better [...

NYS Office for the Aging Publishes Manual on Livable Communities for Aging Population

Posted on October 30, 2010
“With a rapidly aging population, New York’s communities are changing significantly,” Governor Paterson said. “One in five people in the country will be over the age of 65 by 2030, but in many respects, the communities we’ve developed over the past 40 years do not accommodate the housing, neighborhood and mobility needs of an aging [...

MA Supreme Court Upholds Smart Growth Zoning District

Posted on October 29, 2010
In 2004, the Massachusetts Legislature enacted legislation entitled ?Smart Growth Zoning and Housing Protection? with the purpose to ?encourage smart growth and increased housing production in Massachusetts.? This legislation further authorized municipalities to create ?smart growth zoning districts? in eligible locations...

4th Circuit Court of Appeals Finds Regulatory Takings Allegation Satisfies Ripeness Standard Where Further Administrative Review Would be Futile

Posted on October 28, 2010
In a somewhat complicated fact pattern, Acorn Land, LLC (Acorn) purchased a tract of land in Baltimore County in a residential zone. Shortly after, Acorn filed a petition to amend the property?s water/sewer classification to facilitate residential development...

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11th Circuit Finds No Equal Protection Violation for Differing Occupancy Calculations in Bars

Posted on October 27, 2010
The Plaintiffs operated ?Skybar,? which has been subject to private complaints as well as warnings by the City Police for underage drinking, fighting, and patrons consuming alcoholic beverages after 2:00 a.m. In 2007, the Plaintiffs filed suit against the City alleging, among other things, that the City improperly calculated low occupancy numbers pursuant to building [...

Federal District Court Finds County Instant Ticketing System for Property Violations May Constitute a Procedural Due Process Violation

Posted on October 26, 2010
In 2008, New Castle County, Delaware (Defendants) amended their code to subject property owners to civil penalties through an ?Instant Ticketing System for Common Violations? (ITS.) The ITS may be used to issue tickets to the owner of a property for property code violations such as disposal of rubbish and prohibited growth of weeds and [...

NY Enacts Smart Growth Public Infrastructure Policy Act

Posted on October 25, 2010
The Smart Growth Public Infrastructure Act went into effect in New York on September 29, 2010 and requires most state agencies and all state authorities, prior to approving or funding any public infrastructure project,� to prepare and file a Smart Growth Impact Statement finding that the project is consistent with ten Smart Growth Criteria or [...

NY Appeals Court Annuls Planning Board?s Denial of Site Plan for Senior Housing Finding Decision Arbitrary and Capricious

Posted on October 24, 2010
Despite a code provision that allowed uses other than single-family residences in the R-1 zoning district, so long as those uses were ?of the same general character as those permitted or [uses] which will not be detrimental to other uses,? the Planning Board denied site plan approval for a residence for the elderly...

NY Appellate Court Upholds Extension of Landmarks Designation

Posted on October 23, 2010
Plaintiff, the owner of 20th century tenement buildings, brought suit to annul approval of landmark designation for the buildings.� Her Article 78 proceeding was dismissed, and she appealed.�� The buildings which were the subject of this suit were two in a block of 15 buildings, built in the early 1900s...

7th Circuit Court of Appeals Finds that One Law Review Article Is Not Enough Evidence to Support Adult Use Ordinance Where Study After the Fact Produces Different Data

Posted on October 22, 2010
The City of Indianapolis passed an ordinance that required adult bookstores to be closed all day on Sunday and between midnight and 10 a.m. on other days.� In an earlier ruling, the Seventh Circuit held that the empirical support for the ordinance was too weak to satisfy the requirement of intermediate scrutiny applied to such [...

Oregon Supreme Court Clarifies That City May Require Off-Site Improvements as Part of an Office Park Development

Posted on October 21, 2010
Developer, West Linn Corporate Park, alleged that the City of West Lynn effected a taking of its property when the City required, as a condition of development, that the developer construct and dedicate to the City numerous public improvements for street and water...

10th Circuit Upholds Billboard Permitting for Placards

Posted on October 20, 2010
Outdoor advertising company MSM and its owner Wayne Osterloo applied for a conditional use permit to construct a billboard as required under the �4-15 of the Adams County, Colorado Development Manual.� After the initial permit rejection, Osterloo attempted to get the proposal to build the placards qualified under the CEPA exemption, which did not require [...

District Court of NJ Finds City Must Amend Zoning Law to Allow Alternative Avenues of Speech for Adult Use

Posted on October 19, 2010
Gloucester City adopted a Development Ordinance in 1997 which assigned the property in question to the Highway Commercial District which would not permit Plaintiffs? adult use but the Plaintiff continued operating the business regardless on a presumption it was operating as a lawful pre-existing, non-conforming use...

NC Appeals Court Finds Adequate Public Facilities Ordinance for Schools Unconstitutional

Posted on October 18, 2010
In 2003, a developer submitted a proposal to subdivide a 143-acre tract of land into 417 dwelling units. The Town approved the subdivision with the condition that no building permit would be issued unless building applicants paid a fee for the funding of schools in the Town...

NY Towns Lack Authority to Establish Administrative Tribunal to Adjudicate Violations of Local Accessory Apartment Law

Posted on October 17, 2010
The Town of Huntington, NY adopted a local law governing accessory apartments to allow property owners to maintain accessory apartments on their residential properties as a method of providing for affordable housing for smaller families and single people, increasing compliance with building and fire codes, and providing homeowners with a supplemental source of income in [...

NY Appeals Court Finds Alleged Conflict of Interest of Board Member Enough to Deny Town?s Motion to Dismiss

Posted on October 16, 2010
Plaintiff, Eastern Oaks Development, brought action against the Town of Clinton following the Town Board?s denial of the plaintiff?s application for a road to be accepted for dedication. The Town filed a motion to dismiss the petition which was denied by the trial court and the appeals court affirmed...

PA Appeals Court Holds Wall Wrap is a Sign Subject to Zoning Code and Upheld Variance Denial

Posted on October 15, 2010
Callowhill erected a 9,750 square foot non-accessory wall wrap without acquiring a permit on its building located in a district where outdoor advertising signs are not a permitted use.� When Callowhill did apply for the permit one year later, the City of Philadelphia rejected it, but the Board granted a variance...

NY Federal District Court Finds City?s Denial of Permit for Wireless Antenna Not Based on Substantial Evidence and that City?s Discriminated Against Carrier

Posted on October 14, 2010
The City of Mount Vernon denied an application for a special use permit to allow a rooftop antenna on the grounds that there was conflicting and missing application material and that applicant refused to provide the requested information and stated that there would be no additional material forthcoming...

Third Circuit Finds Board Member?s Prior Interest in Property Did Not Violate Developer?s Due Process Rights

Posted on October 13, 2010
Plaintiffs, present and former owners of golf club property, filed a lawsuit against the Upper Saucon Township alleging violations of their substantive due process and equal protection rights under the Fourteenth Amendment, and state-law claims for tortious interference after several requests from a construction company to develop the golf course were denied...

NJ Court Finds Planning Board Member?s Resignation Avoided Determination of Unethical Conduct

Posted on October 12, 2010
This case involved four distinct pieces of litigation; however, a settlement was reached between interested parties with the exception of Tinton?s third-party complaint against Abrams and Saymark Realtors. Abrams was a member of the Planning Board, Board of Adjustment and also the Environmental Commission in Tinton...

Social Networking and Land Use ? Opportunities and Pitfalls

Posted on October 12, 2010
With the growing popularity of Facebook, blogs and wikis, municipal officials and planners have started to use social networking tools in the land use context. A new article, forthcoming in the Pace Law Review, discusses the pros and cons of the use of social networking sites to present public information and to gather public input [...

Kansas Supreme Court Holds that Dual Role by County Attorney Violates Party?s Rights

Posted on October 11, 2010
Davenport �sued the Morris County Board of County Commissioners �alleging his due process rights were violated because the county counselor had dual roles, serving both as the County?s legal advisor and also as the its advocate. �The district court and the Court of Appeals found for the County holding there was no due process violation...

NY Appellate Term Finds Building Inspector?s Observation of Property Did Not Constitute Warrantless Search

Posted on October 10, 2010
The District Court of Suffolk County, Sixth District found defendant M. Santulli, LLC guilty of using a premise to lease apartments without a Certificate of Occupancy as required under Brookhaven Town Code � 16-4.� Defendant appealed, raising several challenges to the validity of the accusatory instrument, which included allegations by the town investigator based on [...

New Law in NY Allows Planning Boards to Extend Conditional Approvals of Subdivisions

Posted on October 09, 2010
On September 17, 2010 Governor Paterson signed into law Senate Bill 7241, which removes the restriction from New York Town Law � 276(7)(c) that a final plat can only be approved for a 180 day period with a maximum of two 90 day extensions. The amended � 276(7)(c) now allows a planning board to extend [...

MD Appeals Court Upholds Historic Landmark Site Designation Finding No Due Process Violations

Posted on October 08, 2010
The Baltimore Street Parking Company brought two actions against the Baltimore City Commission for Historic and Architectural Preservation and the City, seeking judicial review and declaratory judgment.� The plaintiff alleged that their due process rights were violate since the City failed to provide them with notice and a meaningful opportunity to be heard before placing [...

MA Supreme Court Finds No Taking Over Enforcement of Watershed Management Act and Denial of Variance for Property Within Buffer Zone

Posted on October 07, 2010
The Massachusetts Supreme Judicial Court concluded that the denial of a variance application for lakefront property, subject to the Watershed Management Act, did not result in a regulatory taking under the state constitution. The property owner, Blair, modified the property, which was within a 200-foot buffer zone from the lake, by removing trees to add [...

CT Appeals Court Holds that Zoning Board Improperly Issued Variance Where Executor of Estate Was Unable to Show Exceptional Difficulty or Unusual Hardship

Posted on October 06, 2010
A landowner filed an application for a zoning variance in regard to certain real property he controlled in his capacity as the executor of the estate of his mother. The defendant claimed in his application that the irregular shape of the lot along with the strict application of the regulations deprived him of the right [...

KS Supreme Court Finds City Moratoria Prohibiting Driveway Construction Did Not Constitute a Taking

Posted on October 05, 2010
The Supreme Court of Kansas affirmed the district court?s ruling granting the City of Salina summary judgment on plaintiff?s claims that the City inversely condemned their property by denying them the ability to construct driveways or otherwise access their property, improperly refusing to grant them a building permit and damaging their property...

D.C. Appeals Court Holds that a Rule Incorporating a Zoning Description Does Not Automatically Make it a Zoning Regulation

Posted on October 04, 2010
The Director of the Department of Consumer and Regulatory Affairs (DCRA) suspended twenty three used car dealers and adopted a new rule for outdoor storage of motor vehicles (Rule 314) after several investigative inspections of used car dealerships revealed multiple regulatory violations such as lots containing junk vehicles with missing and dangerous auto parts, exposing [...

NY Appeals Court Finds that Fees in Lieu of Parkland Cannot be Collected for an Assisted Living Facility, and that Board Must Make Findings to Support Subdivision Fee

Posted on October 03, 2010
Petitioners, the owners of a parcel of property on which an assisted living center is located, sought to terminate the ?per unit recreation fee? that had been imposed on their property. The Town Code authorized such a fee to be established by the Town board ?in lieu of parkland...

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