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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

Fourth Circuit Finds No Merit to Due Process or Regulatory Takings Claims Where Property Owner Conditional Use Permit Limited the Number of Units That Could be Built

Posted on March 24, 2011
Henry owned four adjoining parcels of land and resided in a single-family home on Parcel A. The parcels were located on land zoned rural-agricultural but Henry still operated a restaurant on Parcel C. After the restaurant burned down, Henry applied for a conditional use permit (?CUP?) to develop 76 townhouses on some of that property...

7th Circuit Court of Appeals Dismisses Due Process and Takings Claims Where County Rescinded Commercial Zoning Designation On a Portion of Landowner?s Property

Posted on March 23, 2011
The 7th Circuit Court of Appeals held that the district court. did not err in granting defendant-County’s motion for summary judgment in a Section 1983 action alleging that defendant violated plaintiff’s due process rights, as well as constructively took plaintiff’s property without adequate compensation when defendant rescinded commercial zoning designation on portion of plaintiff’s property [...

PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof

Posted on March 22, 2011
The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district. Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise?s application [...

Indiana Supreme Court Holds Landfill Operator Not Required to Seek New Zoning Permit

Posted on March 21, 2011
A group of residents, some who own land close to the proposed landfill of J.M. Corporation (JMC), appealed the approval of the landfill?s permit for construction. The Madison County Board of Zoning Appeals granted the zoning petition in 1981. Over the years, the company had been granted an operating permit by the Indiana Department of [...

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NY Appellate Court Holds Discontinued Nonconforming Use Extinguished and New Zoning Regulations Apply to Property

Posted on March 20, 2011
Plaintiff owns property in the Town and commenced an action for a declaratory judgment that the property is exempt from certain land use and building code regulations on the grounds that it was a pre-existing nonconforming use. In applying the Town Code which provides that nonconforming nonresidential uses ?[s]hall not be reestablished if such use [...

NY Appellate Court Upholds Enforcement Tickets for Illegally Keeping Ducks and Geese on Property

Posted on March 19, 2011
The defendant was issued 13 appearance tickets over a 17-month period for harboring ducks, geese and other waterfowl on his property in violation of the Town zoning ordinance. He was found guilty of the charged violations by the justice court which imposed fines, and the county trial court upheld the decision...

GA Supreme Court Affirms Removal of Injunction Allowing Pool in Violation of Restrictive Covenant

Posted on March 18, 2011
Neighbors, resident of a homeowners? association community, challenged a denial of their request for an injunction to force the Goldens to remove a swimming pool they had constructed in the side yard of their own property. The neighbors claim that one of the restrictive covenants limits the construction of swimming pools to areas behind the [...

Fed. Dist Court Allows Due Process Claims and Alleged Void for Vagueness Argument to Proceed

Posted on March 17, 2011
Plaintiff landowners wanted to divide their properties into two parcels for development and ultimately for sale. The County required the properties to be rezoned. As such, the properties were rezoned so that both had the ?A-1? designation. Plaintiffs brought suit on behalf of a class encompassing ?all persons who have, on or after April 28, [...

Idaho Supreme Court Holds Builder Lacks Standing to Bring Declaratory Judgment Action Challenging Zoning Amendment for Lack of Injury

Posted on March 16, 2011
The County zoning ordinance was amended to rezone areas in the county. Shortly after adoption, Martin filed a declaratory judgment action seeking a permanent injunction of the zoning amendments. The district court granted injunctive relief on the grounds that the Idaho Administrative Procedures Act (IDAPA) applied to the zoning decision, the county acted in a [...

4th Circuit Court of Appeals Finds Maryland Statutes Affecting Adult Entertainment Violate First Amendment

Posted on March 15, 2011
Plaintiffs operate adult entertainment establishments in Prince George’s County, Maryland. Plaintiffs are licensed by the Prince George’s County Board of License Commissioners to serve alcoholic beverages at these establishments. In 2005, plaintiffs filed separate complaints challenging the constitutionality of state statutory amendments, which, if enforced, would prohibit them from providing both alcoholic beverages and adult [...

West Virginia Supreme Court Allows Supplemental Evidence to Prove Pre-Existing Nonconforming Use

Posted on March 14, 2011
Sams appeared before the ZBA to appeal a citation issued to him by the zoning officer for a nonconforming use ? a commercial business located in a single family residential zone. At issue was whether the use of the property was exempt under a grandfather clause in the city ordinance and the partied agreed to [...

NY Appellate Court Finds Improvements to Property Following Flood Were Substantial, Triggering Compliance with Local Flood Plain Law

Posted on March 13, 2011
Following a flood in 2006, defendant?s property was damaged. The Town claimed that the structure, which was located in a flood plain, was now required to comply with certain permit and building requirements pursuant to a 2003 local law. The local law, enacted in accordance with FEMA?s National Flood Insurance Program to take advantage of [...

NY Appellate Court Upholds Denial of Area Variances Where Property Owner Cannot Demonstrate Lawful Right to Build an Access Road

Posted on March 12, 2011
The petitioner, owner of two parcels of land in the Town, proposed to build a house on each parcel and sought variances therefore pursuant to Town Law 280-a which allows a zoning board to grant permission to build a structure on a lot even though the lot does not abut a town, county or state [...

Fed. District Court Finds County Complied with Written Decision and Substantial Evidence Requirements of the Telecommunications Act of 1996

Posted on March 11, 2011
T-Mobile applied for a conditional use permit (CUP) to install a wireless facility containing eight panel antennas to be mounted to already existing elevator penthouse structures. The proposed facility was located in a NC-2 District, a district where transmission facilities are considered a public use for which a CUP is required...

10th Circuit Court of Appeals Finds No Vested Rights Absent Final Approval of Development Plan

Posted on March 10, 2011
Plaintiff Jordan-Arapahoe, LLP purchased property in Arapahoe County with the intent to develop a dealership, relying on applicable development plans which listed ?Automotive Sales and Repair? as an allowable use. At the request of the city of Centennial, the County imposed a moratorium suspending all applications for development approval of automobile sales uses in the [...

MA Appeals Court Holds Rental Owner Lacks Standing to Challenge Lack of Special Permit for Abutting Property Used to House Homeless Families

Posted on March 09, 2011
The Appeals Court of Massachusetts affirmed judgment dismissing plaintiff rental owner?s claims that an apartment building used to house homeless families without a special permit caused him to lose tenants and rental income due to lack of standing. Plaintiff, who owned abutting rental properties, attempted to challenge the Worcester zoning board of appeals decision denying [...

Federal Dist. Court Upholds County?s Denial of Application for Cell Tower

Posted on March 08, 2011
T-Mobile filed action for injunctive relief, alleging that the Cobb County?s Board of Commissioners? denial of their application for a Special Land Use Permit to construct a 135 foot tall cell phone tower was not supported by substantial evidence and thus violated their rights under the Telecommunications Act of 1996 (TCA)...

NY Federal District Court Dismisses RLUIPA Claim Against Private Consulting Firm Involved in Village Refusal to Allow Diocese to Develop Cemetery

Posted on March 07, 2011
Since the Village zoning ordinance does not permit the burial of human remains within the Village, after acquiring a parcel of land the Roman Catholic Dioceses sought a zoning change from the Village to allow for the development of the land as a cemetery...

Ill Appeals Court Holds Residents Have Standing to Challenge Cell Phone Antennae and that Alleged Violations are Stem from Local Ordinance, But that RF Challenges are Preempted by Federal Law

Posted on March 06, 2011
Under the Illinois Municipal Code, residents had standing to enforce the village’s zoning ordinances regarding the placement of cell phone antennae on the village water tower because the residents lived within the specified area, and they claimed they were substantially affected by the violations of the ordinances...

Regulating Backyard Chickens

Posted on March 06, 2011
.As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are facing the challenge of regulating the keeping of chickens in residential districts...

NY Appellate Court Annuls Variance Denial Where Board Failed to Engage in Required Balancing Test

Posted on March 05, 2011
Petitioners had been granted an area variance to construct a roof over the deck on the side of their house. The Code Enforcement Officer determined that the petitioners exceeded the variance by using materials that at least temporarily enclosed the deck on three sides...

MA Land Court Holds ZBA Improperly Denied Application for Change of Use

Posted on March 04, 2011
Zoning Board of Appeals denied Jet Eight Group?s application for a G.L.c. 40A, §6 finding to permit a change from office use to restaurant use of a small portion of their commercial building. Jet Eight Group wished to convert two vacant units into a restaurant and bar...

GA Appeals Court Dismisses Alleged Zoning Violation for Failure to Timely Bring Challenge

Posted on March 03, 2011
Tucker filed a complaint against Fortson, among others, alleging various claims that arose out of a resolution issued by the county zoning board of appeals that allowed manufactured homes to be placed on property owned by the Massey?s. Tucker lived on neighboring land and filed an appeal arguing that the permits that ultimately led to [...

Mississippi Appeals Court Upholds Zoning Map Despite Prior Technical Failings

Posted on March 02, 2011
Bostwick and several others filed a petition asking the City to correct its zoning map to reflect that the 29.42 acre property in question was zoned for agricultural use and not industrial use. The City denied the request and stated there was no mistake...

Montana Supreme Court Holds City Properly Initiated Injunction Proceedings to Enforce its Zoning and that Owner Was Not Entitled to Jury Trial

Posted on March 01, 2011
In June 2009 the City issued a Stop Work Order to Forbes because of a construction project on his property. While Forbes admitted that he did not obtain the proper permit, construction continued on his property. The City petitioned for an injunction and the court enjoined Forbes from further construction unless he could obtain the [...

NC Appeals Court Rules Judge Not Biased and Prejudicial Over Plans to Erect County Jail

Posted on February 28, 2011
The Board of Commissioners acquired land and designated it for a new county jail. The County filed a Petition for Zoning Amendment seeking to have the property rezoned to Manufacturing-Industrial One: Conditional. The Planning Board recommended approval to the Board of Commissioners and after a public hearing they voted to approve rezoning...

NY Appellate Court Rules Administrative Discrimination Investigation Arising from Housing Preferences in Town May Proceed

Posted on February 27, 2011
The Town of Oyster Bay created two zoning districts designed to provide housing to meet certain needs in the community. The first, a ?Golden Age District,? created in 1993, was established to provide below-market rate housing for senior citizens, with preference given to seniors who were residents of the school district in which the housing [...

NY Appellate Court Upholds Site Plan Review for Senior Housing Project

Posted on February 26, 2011
Following a rezoning to allow for the development of a senior retirement community, the developers submitted a site plan review application that took into account State DOT restrictions regarding the placement of access roads. The Town approved the site plan over the objection of a neighbor, the owner of another senior residential community, who claimed that the [...

8th Circuit Affirms Injunction Preventing Enforcement of Rock Quarrying Ordinance

Posted on February 25, 2011
The City of Fayetteville, Arkansas sought to use extraterritorial jurisdiction to license and regulate quarrying operations up to one mile outside it’s corporate limits. The Rogers Group, which operates a limestone quarry as a pre existing nonconforming use sought an injunction to prevent enforcement of the ordinance, which, among other things, limited quarrying operations to [...

9th Circuit Court of Appeals Finds City?s Preservation of Industrial Zoned Land for Industrial Uses May Impose a Substantial Burden on Religious Exercise for Church Desiring to Locate There

Posted on February 24, 2011
In 2006, the International Church of the Foursquare Gospel found and signed a purchase and sale agreement for a two-parcel property in San Leandro. The property was located in an Industrial Park zoning district and within the ?West San Leandro Focus Area...

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