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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

Nebraska Supreme Court Finds No Standing to Bring Annexation Claim and No Violation of Open Meetings Law for Site Visit and Dinner

Posted on September 07, 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 [...

TX Appeals Court Finds Lack of Standing to Challenge Development Agreement and No Violation of Open Meetings Law

Posted on September 05, 2010
The City of Dripping Springs entered into two ?Development Agreements? authorizing Barton Springs segment of the Edwards Aquifer is located. Save Our Springs Alliance (SOS), a non profit corporation dedicated to protecting the Edwards Aquifer, filed suit alleging the City did not have the authority to enter into the agreements, violating the Texas Constitution, and [...

Federal District Court Dismisses Equal Protection Class of One and Retaliation Claims Against Developer and finds Sex Discrimination Claim was Sufficient for Equal Protection Allegation

Posted on September 04, 2010
Real estate developer brought an action alleging a violation of USC งง 1983, 1985 and 1988 for failing to approve zoning changes. Defendant?s moved to dismiss for lack of jurisdiction and for failure to state a claim. The District Court held that 1) Plaintiff?s class of one equal protection claim failed, 2) the action was [...

Exclusionary Zoning and Takings Claims Dismissed on Ripeness Grounds by MI Supreme Court

Posted on September 03, 2010
Plaintiffs filed an application with the Putnam Township Planning Commission to rezone their mostly undeveloped 144- acre property consisting of flat lands, hills, wetlands and woods, formerly used as a dairy farm, from agricultural open space (A-O) to single family, rural residential (R-1-B) so they could sell it to be developed...

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CT Supreme Court Holds Adjoining Property Owners in Another State Have Standing to Challenge Zoning Action

Posted on September 02, 2010
Defendant companies entered into a contract where Grace Property would purchase 48 acres of Pacific Farm?s 74-acre property, which was bounded to the north by New York and to the east by Connecticut, to build a church. The planning and zoning commission for the town of New Canaan granted subdivision application to resubdivide the property [...

Second Circuit Dismisses Class of One Equal Protection Claim and Upholds Dismissal of Due Process and Facial Challenges

Posted on September 01, 2010
The Rustons filed a complaint in United States District Court for the Northern District of New York against the Village of Skaneateles, Town Board and Town Planning Board (Town Defendants) for unconstitutionally frustrating their development plans for building a subdivision and additional sewer hookups on their 27 acre lakefront lot...

CT Supreme Court Finds Government Immunity from Negligence Action Due to Alleged Failure to Enforce Zoning Regulations

Posted on August 31, 2010
Plaintiffs filed negligence suit against the town of Westport, the planning and zoning board and three individual employees for allegedly issuing permits in violation of zoning regulations to a contractor who raised the grade of plaintiff?s abutting property, creating a slope that caused flooding on their property; improperly concluding that no zoning violations had been [...

VT Supreme Court Holds Neighbors Lacked Standing to Challenge CUP for Wireless Antenna Since They Failed to Participate in the Process Until After the Matter Had Been Decided

Posted on August 30, 2010
Neighbors filed a pro se notice of appeal in the Environmental Court of Vermont challenging the Town of Barton Zoning Board of Adjustment?s (ZBA) decision to issue a conditional use permit to Verizon Wireless to build an antenna in the form of an artificial tree adjacent to neighbor?s land...

Rezoning Approved Conditioned on Restrictive Covenants Upheld Where Property Owner Later Sought Removal of Covenants

Posted on August 29, 2010
A New York appellate court upheld the town board?s refusal to vacate restrictive covenants imposed as a condition to rezoning where the property owner voluntarily agreed to the placement of the restrictive covenants on the property three years earlier...

Zoning Board?s Denial of Area Variances for Above Ground Pool Upheld by NY Appeals Court

Posted on August 28, 2010
Petitioners purchased a 10,000 square foot parcel in 2000 in a zoning district that prohibits in-ground pools, but allows for above ground pools only on lots of 12,000 square feet or larger. Prior to 2006, the Town had a provision allowing for temporary special exemptions for parcels less than 12,000 square feet for people who [...

WI Appeals Court Holds Town Authority Preempted By Livestock Facility Siting Law

Posted on August 27, 2010
Larson Acres, Inc., applied to the Town of Magnolia for approval of an expanded livestock facility for its dairy operation to house 1,500 livestock. The Town approved the application subject to a number of conditions including a requirement mandating specified land use strategies ?to substantially reduce and thereafter minimize nitrogen loading to surface and ground [...

FL Appeals Court Holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses

Posted on August 26, 2010
Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to [...

New Hampshire Supreme Court Holds that Town Was Not Authorized to Expend Full Amount of Performance Bond Filed by Developer

Posted on August 25, 2010
The Town approved the plaintiff?s application for a subdivision, requiring the developer to post a performance bond of $81,705. The bond was to be used for certain improvements to an intersection used by the subdivision. Beginning in 2005, the Town took steps to prepare for improvements to the subject area, using the bond to finance [...

WI Appeals Court Holds that Challenges to Impact Fees Must First Use Appeal Process Provided in the Ordinance

Posted on August 24, 2010
A local builders association challenges the impact fee ordinance adopted by the Town of Oak Grove. As required by statute (Wis. Stat. ง 66.0617), the Town?s ordinance included an appeal process for challenging the Town?s impact fees. The Association did not use that appeal process, opting instead to bring a challenge to the fees directly [...

5th Circuit Remands Matter to Resolve Definition of Ambiguous Terms in Zoning Ordinance Relating in Enforcement Matter Against Two Sexually Oriented Businesses

Posted on August 23, 2010
A new zoning ordinance requiring licensing and ?conduct regulations? for Sexually Oriented Businesses (SOBs) went into effect in 2007. The City sought a declaratory judgment to allow enforcement of the new ordinance against two SOBs that were operating under a 1995 agreement which exempted the businesses from certain zoning regulations...

USGBC Education Survey

Posted on August 23, 2010
The Law of the Land Blog was asked to post the following message – after taking the survey myself I thought some readers might be interested in weighing in: Ensure Your Voice is Heard: USGBC Survey We are supporting the efforts of the U.S. Green Building Council (USGBC) on a brief survey to identify and [...

Processing of Top Soil and Mulch at Nursery Business Did Not Constitute an Expansion of Non-Conforming Use

Posted on August 22, 2010
A New York appellate court upheld the trial court?s non-jury finding that the defendants? operation of a nursery constituted a pre-existing nonconforming use and that the processing of top soil and mulch did not constitute an expansion of the nonconforming use...

NY Trial Court Erred in Applying Standards for Article 78 Review Rather than Declaratory Judgment

Posted on August 21, 2010
In a hybrid action to compel the issuance of building permits and to invalidate a local law, the trial court improperly used a summary judgment procedure to invalidate the local law. The appeals court explained that the two types of proceeding are governed by different procedural rules...

Summary Judgment Unwarranted Where Record is Unclear as to Prior Mining Activities on Land

Posted on August 20, 2010
In a dispute centered on whether the plaintiffs are entitled to nonconforming use status for an 80-acre parcel of vacant land, which had been used for mining more than 100 years ago, which was also subject to separate litigation as to whether the owners were now entitled to special use permits and whether mining is [...

Sixth Circuit Holds that County Official and Government May Be Liable for Actions Leading to Termination of Private Employment of a Member of the Public Who Spoke at a Public Hearing

Posted on August 19, 2010
Martha Paige sued Coyner, a County official in Warren County, and two County entities pursuant to 42 U.S.C. ง 1983, alleging a violation of her constitutional rights by persons acting under color of state law. Paige attended a public hearing on a proposed interstate highway project in the county, one that would interfere with her [...

Third Circuit Court of Appeals Notes Difference Between Advertising and Identification Signage in Upholding Sign Regulation

Posted on August 18, 2010
A municipal sign ordinance in Pittsburgh placed restrictions on the types of signs permitted in certain zoning districts based on criteria categorizing them as Identification Signs, Advertising Signs, or Business Signs. Pennsylvania Corporation Melrose, Inc...

NY Appeals Court Finds City?s Definition of Family Not Unconstitutionally Vague

Posted on August 17, 2010
The applicable zoning ordinance for the City of Albany restricts the occupancy of residential property in the district to a single family, defined as ?[o]ne, two or three persons occupying a dwelling unit?or?[f]our or more persons occupying a dwelling unit and living together as a traditional family or the functional equivalent of a traditional family...

NY Appeals Court Upholds Planning Board Approval for 10-Unit Multi-Family Dwelling Units on Land Spread Over Two Zoning Districts

Posted on August 16, 2010
The planning board granted the owner of three adjacent parcels, designated as three separate tax lots, permission to construct ten multi-family dwelling units on the lots, conditioned on the owner abolishing existing structures on the lots and merging the three lots into one...

Injunctive Relief in Zoning Matter Does Not Require Proof of Irreparable Harm

Posted on August 15, 2010
A New York appeals court held that where resident taxpayers commenced an action to enjoin neighboring landowners from using their property for nonresidential purposes in violation of the zoning ordinance, and the taxpayers simultaneously moved to preliminarily enjoin the same activities, they demonstrated a likelihood of success on the merits and that the equities are [...

NYSDEC INVITES PUBLIC COMMENT ON PARADIGM CHANGING ENDANGERED SPECIES REGULATIONS

Posted on August 15, 2010
The New York State Department of Environmental Conservation has made draft regulations available for public comment, which, if adopted by NYSDEC, will significantly change the regulatory oversight of endangered and threatened species in New York State...

Decision Maker Bias and Ex Parte Communications in the Zoning Process Results in Due Process Violation

Posted on August 14, 2010
Plaintiff Bradley Hoyt, developer at Continental Property Group, purchased an option on property consisting of a surface parking lot in the Loring Hill neighborhood of Minneapolis with the intention of developing high rise condos and townhomes, known as Parc Centrale...

Ninth Circuit Court of Appeals Holds that Measure 37 Waivers in Oregon Do Not Constitute Contracts

Posted on August 13, 2010
The United State Court of Appeals for the 9th Circuit reversed a lower federal court?s decision holding that waivers in Jackson County, Oregon which allowed governments to choose between paying compensation to property owners for loss of fair market value or waiving enforcement of land use regulations, were valid contracts...

10th Circuit Court of Appeals Upholds RLUIPA Claim Against Boulder, CO in Mega-Church Battle

Posted on August 12, 2010
In continuing litigation (see here, here and here) the Board of County Commissioners of Boulder (the County) appealed a district court?s ruling that the County?s denial of a church?s special use application to expand its size violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the entry of a permanent injunction to grant [...

CT Supreme Court Finds Town May Not Close Road That Gives Sole Access to Property in Adjacent Town

Posted on August 11, 2010
The plaintiff-appellants appeal on the question of whether a town may close a town road that gives sole access to a property in adjacent town in order to prevent traffic from a proposed subdivision on the property from overburdening the road. The plaintiff brought this action to enjoin the defendant from closing the road, but [...

MI Supreme Court Upholds Denial of Request to Operate Religious School in Office Park Zone Finding no Equal Protection Violation Where ZBA Previously Allowed a Non-Religious Entity to Operate a Daycare Center in the Same Zoning District

Posted on August 10, 2010
A daycare center was opened in an area zoned for office parks that allowed accessory child care facilities in order to provide care for the children of employees of the office park. Later, the permitted use was expanded by variance to allow attendance by children of parents that did not work in the office park...

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