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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

Ninth Circuit Court of Appeals Finds Municipal Ban on Tattoo Parlors Violates First Amendment

Posted on October 02, 2010
Anderson sought to establish a tattoo parlor in the City of Hermosa Beach, but the City Code effectively banned tattoo parlors by not including them in the zoning of permitted businesses. Tattooing, according to the Centers for Disease Control and Prevention, and the Food and Drug Administration, could have adverse health implications (the transmission of [...

Federal District Court (NY) Dismisses Due Process and Retaliation Claims, and Grants Leave to Amend Equal Protection Claim

Posted on October 01, 2010
Plaintiffs initially brought action in state court under 42 U.S.C. § 1983, claiming that the Town?s seasonal rental permit law was unconstitutional. The Town then created a new seasonal permit law, and Plaintiffs amended their complaint claiming the new law was also unconstitutional...

Following Vote in Zoning Matter Nevada Supreme Court Finds State Ethics Statute Overbroad

Posted on September 30, 2010
Carrigan was elected three times to the Sparks City Council. In each election, his friend Carlos Vasquez served as his campaign manager. Vasquez also worked as a consultant for the Red Hawk Land Company. Red Hawk Land Company submitted a land zoning proposal to build a casino...

Sixth Circuit Court of Appeals Holds City?s Threat of Enforcement is Sufficient Notice for Purposes of Due Process

Posted on September 29, 2010
A private landowner, Hussein, hired contractors who failed to follow the City of Perrysburg?s zoning ordinances which ultimately resulted in a ?stop work? order on construction. Hussein later sought to make his driveway safer by hiring a new contractor to put a temporary thin layer of asphalt over his driveway...

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MN Supreme Court Upholds Moratorium on Pawn Shops

Posted on September 28, 2010
Pawn America applied to the City of St. Louis Park for a license to operate a pawn-shop. The City?s assistant zoning administrator issued a zoning verification letter confirming that the intended use of the property complied with the City?s zoning code...

Maine Supreme Court Finds Association Lacked Standing to Challenge Proposed Wind Project

Posted on September 27, 2010
In November 2008, Evergreen Windpower III, LLC was issued a permit in order to erect a part of a wind power project in the Town of Lincoln. Prior to this request, several hearings were held by the Town Council and Planning Board in order to evaluate whether wind power projects should be permitted within the [...

NY Appeals Court Grants Preliminary Injunction in Nuisance Action for Noise Generated by Rooftop Bar

Posted on September 26, 2010
Plaintiff, the owner of a residential cooperative apartment building, sued the defendants, owners of a rooftop bar in the building adjacent to the apartments, claiming that defendants generated a nuisance that ?degraded the residents? quality of life and diminished their property values...

WI Attorney General Opines that Coordination Resolutions As Alternative to Comprehensive Plans are Not Recognized Under Wisconsin Law

Posted on September 25, 2010
The Wisconsin Attorney General issued an opinion regarding the ?coordination? resolutions that a number of towns in Wisconsin have adopted as an alternative to preparing a comprehensive plan. By adopting the resolution these towns believe it gives them the authority that imposes affirmative duties on the federal government, the state, and other local governments to [...

North Carolina Appeals Court Finds Private Shooting Range in Residential District is Entitled to Nonconforming Use Status

Posted on September 24, 2010
In 1991, the petitioner, Michael Land, set up a shooting range on his private property in the Village, which he supervises and limits to only family and friends. However, in 2000, the respondent, the Village of Wesley Chapel, enacted a land use ordinance that did not authorize shooting ranges within residential district...

Historic EJ Meeting Held Today in Washington, DC

Posted on September 23, 2010
The following press release was issued today by EPA: FOR IMMEDIATE RELEASE September 22, 2010 EPA Hosts Historic Meeting on Environmental Justice Obama administration cabinet members show commitment to healthy environment and strong economy for all Americans WASHINGTON ? Today, for the first time in more than a decade, U...

Official Misconduct Upheld By NY Appellate Court When Legislator Used Authority to Get Developer a Contract in Return for a House

Posted on September 23, 2010
The defendant, Diane Gordon, a former member of the Assembly, was convicted on eight offenses regarding official misconduct and bribery. These convictions were based on the defendant?s promising to use her authority to help a real estate developer purchase City land in exchange for receiving a house from the developer for free or a reduced [...

DOJ Issues Statement on Land Use Aspects of RLUIPA

Posted on September 23, 2010
The Department of Justice today issued a policy statement on the land-use provisions of RLUIPA, with questions and answers, to provide information to individuals, religious assemblies and institutions, and local government officials about the requirements of the law...

WI Town Fails to Follow State Code and Loses Ability to Veto County Amendatory Ordinance Affecting Town Zoning

Posted on September 22, 2010
Plaintiffs wished to have their land rezoned and sent an application to the County. The County forwarded the application to the Town. If the Town had any objections, under the Wisconsin Code, they were to send a recommendation to the County in the form of a certified copy of a town resolution adopted to that [...

8th Circuit Court of Appeals Finds St. Paul, MN Ban on Billboard ?Extensions? Lacked Rational Basis

Posted on September 21, 2010
Clear Channel was engaged in the business of outdoor advertising, and owned and maintained 390 billboards, with 460 sign faces, within the City of St. Paul. The company regularly used temporary billboard extensions (part of a graphic or word that protruded beyond the normal rectangular outline of a billboard) to give its customers greater creative [...

U.S. DOJ Issues Report on 10th Anniversary of RLUIPA

Posted on September 21, 2010
The Following announcement was circulated by DOJ: The Department of Justice today issued a Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act, which was signed into law ten years ago tomorrow. A press release summarizing the report is linked here...

City Ordinance Imposing Criminal Penalties for Operation of a Medical Marijuana Dispensary is Not Preempted by Federal Law

Posted on September 20, 2010
Qualified Patients Association (QPA) sought a declaratory judgment that the a local ordinance in the City of Anaheim which imposed criminal penalties for the operation of a medical marijuana dispensary, was preempted by state law and federal law. In addressing whether the Medical Marijuana Program Act (MMPA) was an unconstitutional amendment to the Compassionate Use [...

LA Court of Appeals Upholds Power of Historic Preservation Agency to Enforce Decisions Against Non-Complying Property Owners

Posted on September 19, 2010
Appellants were owners of New Orleans property situated within the Vieux Carre historic district. The City, through the Vieux Carre Commission (VCC), inspected and cited four buildings owned by the appellants for alleged violations of historic district ordinances...

NH Supreme Court Refuses to Apply Most Restrictive Regulations Where Project Crossed Several Zoning Districts Based on Law of Case Doctrine

Posted on September 18, 2010
Plaintiffs appealed the Superior Court?s decision to affirm the Zoning Board of Adjustment?s (ZBA) approval of a site plan for construction of a retail grocery store within a rural residential district. One-third of the parcel in question lies within the Town?s Historic District and the remainder within the Rural Residential District...

KS Appeals Court Upholds Approval of Parking Lot on Land Listed on State Register of Historic Places

Posted on September 17, 2010
The Kansas Court of Appeals upheld the decision of the city council, permitting a church to build a parking lot on a historically preserved parcel it possessed (the land was listed on the State Register of Historic Places). A local preservation group challenged the decision of the council, which had overruled the objected of the [...

Federal District Court Finds Pro Se Plaintiff Has Standing to bring Section 1983 Challenge to Revocation of Zoning Permit Despite Bankruptcy of Business

Posted on September 16, 2010
The City of Weirton revoked a zoning permit issued to plaintiff for the operation of a bed and breakfast and wedding/reception facility after City officials learned that plaintiff was advertising its? facility on a website for un-permitted sexually-oriented activities...

MS Supreme Court Upholds Rezoning that Allows for Recycling Facility/Junkyard

Posted on September 15, 2010
A landowner sought an exception to a Panola County ordinance in order to operate a junkyard. The five-acre parcel was zoned agricultural but the Board of Supervisors of Panola County (Board) granted landowners request. Plaintiff, a neighbor, appealed the Board?s decision...

Delaware Supreme Court Concludes that Under Applicable Zoning Regulation, Residential Lot Size Requirements Do Not Apply to Mixed Use Structures

Posted on September 14, 2010
Plaintiff applied for a building permit to redevelop three parcels of land, which would add a mixed commercial residential structure to the already existing properties. The Building Inspector reviewed the application before issuing a referral letter...

NJ Appeals Court Finds Seller Has Standing to Bring Challenge to Use Variance Denial Where Sale was Conditioned on Variance to Allow for Low Income Housing

Posted on September 13, 2010
Contract purchaser Richman Group entered into contract with Campus Associates to purchase their property to construct affordable housing units for a low income housing tax credit program. Terms of the contract provided that Richman would purchase the property after they applied for, and were granted, the development approval...

S.D. Supreme Court Calls For More Diligence in Lower Court?s Analysis of Local Historic Preservation Statutes

Posted on September 12, 2010
A business sought approval from the local historic preservation commission to expand its building in a historic landmark district. The commission denied the application. The Court of Appeals reversed the commission?s ruling, but interpreted the enabling statute without reference to the city ordinances that the statute empowered the city to enact...

CA DOT to Release for Comment Draft Update the California Airport Land Use Planning Handbook

Posted on September 11, 2010
The California Department of Transportation Division of Aeronautics is in the process of updating the California Airport Land Use Planning Handbook (Handbook). This update will be the fourth edition of the Handbook. Its purpose is to support and amplify the article of the State Aeronautics Act (California Public Utilities Code, Section 21670 et seq...

MN Supreme Court Adopts Stricter Meaning of Phrase ?Undue Hardship? for Variance Requests

Posted on September 11, 2010
The Supreme Court of Minnesota adopted a stricter meaning of the term ?undue handship? with respect to variance applications, departing from the theretofore prevailing standard. The appellant sought judicial review of his neighbor?s successful application for a variance to a nonconforming detached garage...

N.C. Appeals Court Finds No Violation of Due Process Where ZBA Member Spoke with Board Member of Applicant?s Association, and Further Upheld Variance Where Competent Evidence Supported Board?s Decision

Posted on September 10, 2010
Plaintiff brought an action appealing the City of Charlotte Zoning Board of Adjustment?s (ZBA) decision to grant a zoning variance to the Center for Community Transitions (CCT) to build a halfway house and the dismissal of this case by the trial court...

NYS Legislative Commission on Critical Transportation Choices Tasked with Exploring Sustainability

Posted on September 10, 2010
Through a provision in a budget bill, the Legislative Law that created a Legislative Commission to consider critical transportation choices has been amended to enable the Commission to, among other things, assess the transportation needs of localities with respect to various modes of moving people and goods, and their energy efficiency and environmental sustainability thereof, [...

Nevada Supreme Court Finds Reno Failed to Make Required Findings of Adequate Infrastructure Prior to Adoption of Master Plan Amendments

Posted on September 09, 2010
In 2005, the City of Reno passed an ordinance annexing 6,800 acres of undeveloped land in Cold Springs, a rural area not far from Reno. Subsequent to the ordinance, however, a Nevada statutory scheme required that modifications be made to Reno?s master plan before the annexed land could be developed...

MN Supreme Court Says Failure to State Reasons for Rezoning Denial in Writing Does Not Trigger Automatic Approval

Posted on September 08, 2010
After Cook County denied Johnson?s request to rezone two parcels of property for commercial use, Johnson brought a declaratory judgment action claiming that his rezoning application was automatically approved because the County did not state the reasons for denying his request in writing as required by Minn...

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