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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

Federal District Court Upholds Cincinnati Law Banning Placement of Advertising on Benches Public and Private Property

Posted on August 09, 2010
Plaintiff Bench Billboard Co., an advertiser that specializes in advertising products and services on backrests of benches on private and public property, sued the City of Cincinnati regarding its laws regulating the placement of advertising benches on public and private property, asserting that they violate the First and Fourteenth amendments of the Constitution as well [...

NY Appeals Court Upholds Area Variance Denial Where Alleged Hardship was Self-Created

Posted on August 08, 2010
A New York appellate court upheld the ZBA?s denial of area variances where the record revealed that the Board weighed the relevant statutory factors and determined that the variances would have an adverse impact on the surrounding neighborhood and that the alleged difficulty was self-created since the petitioner?s sole beneficiary also owned the neighboring 4,000 [...

OR Appeals Court Interprets ?Residential Purposes? Language in Restrictive Covenant and Concludes That Parking Spaces, Bioswale and Retaining Wall Violate Restriction

Posted on August 07, 2010
Defendant Dalton intended to erect a housing development named the Saratoga subdivision on the northern part of Lot 4 within a platted subdivision known as Equestrian Heights. The plans for the ?Saratoga subdivision? included six row houses, two parking spaces, a water treatment facility (bioswale), and a retaining wall...

11th Circuit Court of Appeals Finds Large Group Feeding Ordinance Does Violate First Amendment

Posted on August 06, 2010
In response to complaints about large numbers of homeless people dispersing from the park and into neighborhoods after feeding events sponsored by a church and advocacy group, the City of Orlando adopted a Large Group Feeding Ordinance requiring a permit for “large group feeding” (meaning a gathering expected to attract 25 people or more) within [...

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Denial of Permit for Fitness Facility Does Not Violate RLUIPA Substantial Burden Provision

Posted on August 05, 2010
New Life Worship Center, after receiving a special use permit, constructed a private regional high school on its property where it also owned and operated a church that was zoned in a ?Planned Corporate? Zoning District. Two years after opening the high school to students, New Life opened two fitness areas and a dance studio [...

Fourth Circuit Court of Appeals Upholds Alcohol Licensing Program for Adult Use Establishments

Posted on August 04, 2010
Under Virginia law, establishments where performers offered striptease routines could obtain licenses to sell beer, wine, or both, but could not get a mixed beverage license, which permitted the sale of distilled spirits. The plaintiffs were three nightclubs (collectively referred to as ?Papermoon?) featuring ?erotic dance performances? of women clad in g-strings and pasties, brought [...

8th Circuit Court of Appeals Upholds Constitutionality of Enforcement Action and Search of the Property

Posted on August 03, 2010
Following a complaint by a neighbor, the owner of 6.97 acres within three miles of Omaha (over which the City has zoning authority) was ordered by the health inspector to cease dumping construction debris in a ravine. The health department inspector entered the property and photographed the debris, accompanied by a code inspector...

PA Court Upholds Denial of Permits for LED Billboard Where ZBA Decision Was Evenly Split Leading to a Negative Decision and Doctrine of Natural Expansion for Non-Conforming Uses was Inapplicable

Posted on August 02, 2010
In 2003, the Pittsburgh Parking Authority issued an RFP for architectural services for a new parking garage. The design for the parking garage ultimately chosen by the Authority included video signs. The signs were later eliminated from the plan because the Authority could not justify the cost of their inclusion...

Failure to Seek Preliminary Injunction Renders Challenge to Asphalt Plant Academic

Posted on August 01, 2010
Petitioners sought to challenge the town planning board?s determination pursuant to an environmental review that the potential negative environmental impacts associated with an asphalt plant had been sufficiently mitigated. The appeals court noted that typically these types of challenges are dismissed on ripeness grounds since ?the issuance of a SEQRA finding statement does not inflict [...

Ohio Appeals Court Upholds Denial of Proposed Wellness Center as Unauthorized Under Applicable Zoning

Posted on July 31, 2010
Where the applicable City zoning permits headquarters or executive offices, medical offices, and accredited educational facilities, Global Country of World Peace sought to site a proposed wellness center. Global first described its proposed use as including a conference center, a restaurant...

NJ Supreme Court Finds Construction of Protective Dune Amounted to a Taking

Posted on July 30, 2010
The Klumpps bought their property in 1960 and constructed a single-family home, which was destroyed by a Nor?easter in March 1962. Large portions of the surrounding area were also destroyed. Following the destruction of the house, the Klumpps did not rebuild, nor did they visit the property for several years...

Federal Dist. Court in Michigan Holds Plaintiff Must Exhaust Local Administrative Review Despite Belief that Hearing Officer Was Selected by City Attorney

Posted on July 29, 2010
Plaintiff Hamoudi Sabri sought injunctive relief from the City of Minneapolis?s application of an ordinance regarding rental hall licenses on the ground that such restriction interferes with the First and Fourteenth Amendment right to assemble. Another of Sabri?s properties had displayed a rental hall sign without the applicable permit and was cited after hosting a [...

CA. Appeals Court Upholds Development Impact Fees for Facilities That Had Not Yet Been Planned

Posted on July 28, 2010
A California court of appeal upheld a wide range of sometimes novel development fees, including fees for police equipment, garbage trucks and a naval air museum, emphasizing the deference to be accorded an agency?s choice of methodology in calculating the fees...

$1.5 Million Settlement in New Hampshire RLUIPA Case

Posted on July 27, 2010
The St. Benedict Center had a building that has been used as a chapel since 1989 and a school since 1990. The Center submitted to the town of Richmond Planning Board and Town of Richmond Zoning Board of Adjustment a site plan for an expanded house of worship / classroom building which was accepted by [...

VT Supreme Court Finds Cost of Tree Removal Should be Factored into Off-Site Mitigation Fee

Posted on July 26, 2010
Vermont law requires that when agricultural soil is to be lost, as in the present case, by developing it for residential uses, there must be an off-site mitigation fee assessed. The appellant does not appeal the classification of the land, as it was once a farm, but rather the fee itself...

MI Supreme Court Revises Constitutional Rule for Gravel Mining Land Uses

Posted on July 25, 2010
The Michigan Supreme Court was asked to review case law that had formulated a rule from the due process clause of the state constitution to apply to gravel mining, by which that use must be allowed unless there were ?very serious consequences? from the mining...

Retaining Wall Erected in Excess of Height Limitations Must be Removed

Posted on July 24, 2010
Defendants Port Washing ton Holding Club built a retaining wall exceeding the height allowed pursuant to Village Code without seeking or obtaining a variance which would allow it to do so and used the property to store 9,750 cubic yards of unpermitted ?rubbish? and ?trash?...

Failure to Request Preliminary Injunction During Pendency of Appeal Resulted in Dismissal of Challenge to Use Variance

Posted on July 23, 2010
Petitioners appealed the Town of Carmel Zoning Board of Appeals? decision to grant respondent Putnam Arts Council a use variance. The variance was for permitting the extension of a not-for-profit arts council in a residential zone. The trial court denied the petition and this appeal ensued...

NY Appeals Court Upholds Variance for Swimming Pool

Posted on July 23, 2010
After applicants were granted an area variance to install an in-ground pool in the side-front yard of their corner lot, a neighbor appealed and the trial court dismissed the petition. The appeals court upheld the dismissal, finding that the zoning board of appeals properly engaged in the required statutory balancing test and that their decision [...

WA Appeals Court Upholds Temporary Use Agreement with Church for Temporary Homeless Encampment

Posted on July 22, 2010
Citizens group Mercer Island Citizens for Fair Process appealed decision from the trial court dismissing their claim that the city of Mercer Island, by entering into a temporary use agreement (TUA) violated constitutional rights to due process of law by failing to comply with its municipal code...

Sixth Circuit Finds that Enactment of ?Instructions? Aimed at ?Big Box? Project Constituted a Significant Change Requiring a Notice and Hearing

Posted on July 21, 2010
In 1991, the Town of Liberty approved a planned unit development (PUD) for the Wedgewood Commerce Center (WCC). According to the ?WCC Development Standards,? only subareas 3, 8, and 9 were zoned for commercial development. However, over the years, the owners of subareas 4, 5, 6, and 10, plats all originally designated for suburban office [...

Potential Manipulation of Application by City Employee for an Adult-Oriented Cabaret Results in Remand to City Council

Posted on July 20, 2010
Plaintiff appealed an order of the Superior Court, which denied his petition for a writ of mandate challenging the city?s denial of his application for a permit to operate an adult-oriented cabaret. The City?s denial reasoned that the location was within 300 feet of a church that was to be built...

Federal District Court Halts Wind Development Project Until Endangered Species Permit Can be Obtained

Posted on July 19, 2010
In a lengthy 77 page opinion, the Federal District Court in Maryland but a temporary halt on a significant wind project along the Appalachian Mountain Ridgeline in West Virginia until the project operators obtain a temporary take permit under the federal Endangered Species Act...

Zoning Board of Adjustment Attorney Publicly Reprimanded in NJ and NY for Partially Board Endorsed Non-Compliance

Posted on July 18, 2010
DeMers was employed as a city attorney for the Zoning Board of Adjustment for the City of Patterson, New Jersey. A state statute mandated that Zoning Boards write resolutions of their decisions. Given the time and expense of drafting the resolutions, the Board?s chair put the responsibility on DeMers and instructed him only to prepare [...

New Law in NJ Provides Requires Applications be Reviewed Using Regulations in Effect at time of Submission

Posted on July 18, 2010
A new law in New Jersey requires that those development regulations which are in effect on the date of submission of an application for development (not the date of review) shall govern the review of that application for development and any decision made with regard to that application for development...

NY Appeals Court Finds Board?s Denial of All Alternative Plans May Give Rise to Due Process Claim

Posted on July 17, 2010
Property owned by ULC comprised of two parcels is bisected by north-south running wetlands which limits access to the western half only by foot. For more convenient access, ULC constructed a ?rough entranceway? from a road that fronts on the western half of the subject property...

NJ Law Exempts Solar Panels From Certain Zoning Regulations

Posted on July 17, 2010
A new law in New Jersey exempts solar panels from zoning limitations on impervious cover (i.e., driveways, buildings, and other surfaces that prevent water from absorbing into the ground). The law specifically applies to the various laws relating to municipal land use, stormwater management, waterfront and coastal development, the Pinelands, and the Highlands, including agricultural [...

Fed. District Court Finds Village Attorney?s Self Interest and Alleged Influence Does Not Defeat Summary Judgment when the Village Board Acted in Legislative Capacity

Posted on July 16, 2010
Mercatus Group, an operator of physician centers that among other services offers diagnostic imaging, alleged Lake Forest Hospital and the Village of Lake Bluff thwarted Mercatus?s proposed site in Illinois in an effort to corner the diagnostic imaging market of that area...

Federal District Court Finds Land Use Decisions are Protected by Official Immunity and Vicarious Official Immunity

Posted on July 15, 2010
In a report and recommendation where Plaintiff Gary Thelen did not appear in court and thus left Defendant city?s motion for summary judgment unopposed, the status of protection of a municipality?s land use decisions was discussed. Thelen had a recurrent property dispute with the City of Elba stemming from a property transaction that was completed [...

Federal District Court Dismisses RLUIPA Claim Where Church Not Permitted in Mixed Use District but Permitted to Located Elsewhere in Town

Posted on July 14, 2010
Plaintiff Dixon owned property located in the Central Business district in the Town of Coats, NC, and leased it for various uses, including a church from 2003-2005. In 2005 the Town adopted a zoning ordinance placing the property in an area called the Mixed Use Village District (MUV), which was created to encourage storefront retail, [...

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