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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

Variance Granted to Prior Owner is not Precedent for a Variance Request by New Owner

Posted on May 02, 2010
Petitioner purchased property that had been zoned C in 1966. Before the purchase of the property, an antique store operated on the property pursuant to a use variance granted prior in 2002. When the petitioner purchased the property he used the property for the sale, storage and display of motorcycles...

Zoning Board Was Not Authorized to Review Special Use Permit Application for Home Based Law Practice

Posted on May 01, 2010
In 2002 the petitioner filed an application with Oyster Bay Department of Planning and Development seeking a permit to continue operating a law practice in a property that was zoned for residential use. The Department denied the application because the petitioner needed to gain approval from the Zoning Board...

Alaska Supreme Court Holds that School Construction is Subject to Local Code Requirements Regarding Road Improvements

Posted on April 30, 2010
The City of Anchorage built a new high school in Eagle River near the end of Yosemite Drive, a road leading to a subdivision being developed by LBJ. The Platting Board found that this required the school district to improve the road, but the Board of Adjustment reversed based on a Traffic Impact Analysis, which [...

WY Supreme Court Holds that Completion of Subdivision Pending Appeal Does Not Moot Appeal

Posted on April 29, 2010
In October 2004, Worthington Group of Wyoming, LLC (Worthington) submitted a sketch plan and special use permit application for the development of the subdivision to the Board and the Park County Planning & Zoning Commission (the Commission), and despite numerous objections, the plans for development of the subdivision were approved...

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RLUIPA Challenge to Requirement that Church Install Sprinklers if it Desired to Continue Services Is Not Moot Where Church Moved Out

Posted on April 28, 2010
After being told that sprinklers must be installed in the warehouse where Praise Christian Center was holding religious services, the Center filed a complaint alleging that the City?s requirement was a violation of the ?Equal Terms? provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA)...

Failure to Exhaust Administrative Remedies for Fill Permit Denial Results in Dismissal of Due Process and Equal Protection Claims

Posted on April 27, 2010
Plaintiff sought to construct a driveway on part of a 77-acre unimproved parcel of land. After obtaining a fill permit and development, the Plaintiff arranged for 1500 truckloads of fill to be delivered to the property. Shortly after the fill started to arrive, the Town building inspector removed the fill permit and ordered the Plaintiff [...

NH Supreme Court Finds Minutes of Meeting Failed to Provide Adequate Record of Board?s Reasoning for Special Permit Denial

Posted on April 26, 2010
Motorsports Holdings, LLC applied for a special use permit under the Town of Tamworth?s Wetlands Conservation Ordinance (?WCO?), as directed to due so by a prior judgment of the superior court. The Town of Tamworth denied the application for the permit, deciding that the proposed project did not meet five of seven Section A criteria [...

Petitioners Failed to Exhaust Administrative Remedies to Challenge Issuance of Building Permit

Posted on April 25, 2010
Where the zoning board of appeals determined that the subject property complied with the square footage requirement of the zoning district and the gross floor ratio requirement of the applicable zoning code, neighbors commenced a proceeding to annual the determination which upheld the issuance of a building permit thereon...

Oregon Land Conservation Development Department Issues TDR Rules for Pilot Program on Forest Land Conservation

Posted on April 25, 2010
In 2009, the Oregon Legislature authorized local governments to develop and adopt TDR programs when it passed Senate Bill 763. At the same time, the Legislature adopted House Bill 2228, which created the Oregon TDR Pilot Program. This program allows the Oregon Land Conservation and Development Commission (LCDC) to select three TDR pilot projects to test different [...

Board Improperly Denied De Minimus Changes in Requested Amended Variance

Posted on April 24, 2010
The zoning board, by a vote of 6-0 (with one member absent), granted an initial application by the petitioner for an area variance to allow a proposed expansion of the petitioner?s home. The Town building inspector then notice cut-outs for windows on the west side of the addition which were not in accordance with the [...

Refusal to Include Land in Agricultural District Upheld Where Number of Hogs Would Contravene Local Zoning

Posted on April 23, 2010
An appeals court held that the petitioner failed to meet its burden of demonstrating that the county legislature?s administrative determination denying its application for the inclusion of its property in an agricultural district. The Court found that the legislature?s decision was rational based on its expressed concerns regarding adverse impacts on the town and upon [...

Board Correctly Applied Provisions of Code as Court Finds Land Area Per Dwelling Unit and Minimum Lot Sizes Are Treated Independently and Are Not Equivalent

Posted on April 22, 2010
The Ashtons applied for and received a building permit in 2008 to expand their conforming house to create a ?rough second floor shell with stairs.? Neighbors appealed to the zoning board claiming that the permit application did not meet the applicable Code provisions...

Automobile Transportation Business is Neither a Pre-Existing Nonconforming Use Nor a Valid Home Occupation

Posted on April 21, 2010
Following an enforcement action by the Town to enjoin the defendants from operating an automobile transportation business on property partially situated in the Town, the defendant appealed from a trial court ruling that the use was not grandfathered in when the Town adopted the zoning ordinance in 1972...

Proposed Homeless Shelter Satisfies Fifth Amendment Public Purpose Requirement

Posted on April 20, 2010
In a protracted legal battle over a homeless shelter that Shelter House plans to build on a plot adjacent to the Dahlen?s property, the Dahlens brought a suit under 42 U.S.C. § 1983, claiming a violation of the Fifth Amendment’s Takings Clause and requesting damages as well as an injunction to prevent the planned construction...

NJ Enacts Suite of Renewable Energy Laws

Posted on April 19, 2010
A number of new initiatives related to wind generation and siting in New Jersey recently took effect. AB 3740 which took effect in January 2010 provides for the regulation of small wind energy systems by municipalities, and prohibits municipalities from unreasonably limiting the installation of such systems designed primarily for on-site consumption...

Registration Now Open for Rutgers On-Line Ethics Course

Posted on April 19, 2010
Ethics in Planning and Land Use Regulation will be offered on-line between May 26 and July 3, 2010 through the Bloustein On-Line Continuing Education Program at Rutgers. The course is eligible for 14 AICP Certification Maintenance credits. This course will explore the ethical responsibilities of the various players in the land use game...

Telecommunications Act Prevents Consideration of RF Emission Effects and the Act Does Not Require Finding of a Public Need

Posted on April 18, 2010
Plaintiff brought an action to enjoin a decision of the Connecticut Siting Council (the Council) granting Defendant Cellco Partnership d/b/a Verizon Wireless a Certificate of Environmental Compatibility and Public Need for the construction, maintenance and operation of a cellular tower in Falls Village, Connecticut...

City Entitled to Regulate Sign Determined to be a Nuisance under the Municipal Code

Posted on April 17, 2010
In 2002, Desert Outdoor Advertising began displaying a large advertising billboard, visible from the freeway, on a street in Oakland. The City of Oakland demanded that the structure be removed or that a variance be sought because the sign was prohibited by Oakland?s ordinances...

Denial of Area Variances Upheld Due to Adverse Effect on the Character of Neighborhood and Physical and Environmental Conditions

Posted on April 16, 2010
An appeals court upheld the denial of area variances that would have enable the petitioner to subdivide a parcel and construct two new single-family dwellings on lots measuring 5,795 square feet where the minimum lot size is 6,000 square feet. Following a hearing, the zoning board determined that while the requested variances were not substantial, [...

Local and State Agencies are Not Necessarily Preempted by Federal Law from Regulating Tree Removal at Airports

Posted on April 15, 2010
Goodspeed Airport sought to remove certain trees located at the airport, claiming that they were ?obstructions to air navigation,? however, it was arguably hindered from doing so because the trees were located in wetlands which were protected by the Wetlands Act and the Conn...

No Private Right of Action to Challenge Cell Towers under the Telecommunications Act

Posted on April 14, 2010
In June 2008, the White Plains Planning Board approved MetroPCS?s application for special permits and site plan approvals to construct new cell antennas on the rooftops of two structures in White Plains, despite Plaintiff?s numerous objections, including his testimony on the harmful effects of the proposed antennas and evidence in opposition to the special permits...

Ordinance Regulating Display of Goods and Merchandise for Outside Stores is Not a Zoning Ordinance

Posted on April 13, 2010
Braley held a leasehold interest in a property in Forest Park, Georgia, where he operated a retail salvage store. He has displayed merchandise for sale in front of the store in an area where there is a sidewalk and parking spaces since 1984. In March 2007, the City of Forest Park (the City) implemented a [...

Renewable Energy Resources

Posted on April 13, 2010
Renewable Energy and Land Use Materials from the summer ALI-ABA Land Use Institute have been published in the ALI- ABA Business Law CLE Materials. Part I of the two-part set of materials focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses local governments and LEED, Energy [...

Rezoning to Planned Development District Invalidated for Failure to Follow Requirements of Enabling Act

Posted on April 12, 2010
Petitioners own properties adjacent to a tract of land owned by the Walpoles, which was assigned an ?Agricultural Preservation? zoning classification. In June 2003, the Walpoles applied to have their property rezoned to a PD district. Charleston County Council (the Council) adopted an ordinance rezoning the property from agricultural to a PD district in February [...

Florida Open Meeting Law Does Not Mandate Public Participation

Posted on April 11, 2010
Community Maritime Park Associates is a non-profit corporation charged with overseeing the development of a parcel of waterfront property. While there was no dispute that the organization?s meetings are subject to the Sunshine Law in Florida which requires meetings to be open to the public, the issue before the Court was whether the organization is [...

Area Variance Denial Upheld Where Board Properly Applied Statutory Criteria and Where Application Could Not Demonstrate Other Variances Were Granted On Essentially the Same Facts

Posted on April 10, 2010
The fact that the zoning board denied one owner an area variance while granting another area variance does not in and of itself indicate that the difference is due to impermissible discrimination and arbitrary actions. The petitioner must demonstrate that the applications were essentially the same and here, the mere fact that the zoning board [...

Zoning Code that Prevents Proposed Mulitfamily Housing for the Elderly Does Not Violate the Fair Housing Act Amendments or Americans with Disabilities Act

Posted on April 09, 2010
Plaintiffs alleged that the Town?s zoning code which prevents them from building multifamily housing for the elderly and thus limiting the access of the handicapped to desired types of housing violates both the Fair Housing Act Amendments (FHAA) or the Americans with Disabilities Act (ADA)...

Court Upholds Validity of Comprehensive Plan Despite Effective Elimination of Mining

Posted on April 08, 2010
In reversing an opinion of the trial court, an appeals court determined that the Town followed proper procedures in the adoption of its 2007 Comprehensive Plan pursuant to local law which contained a recommendation for elimination of a light industrial zoning district floating zone which allowed residential and agricultural areas to be rezoned for industrial [...

Meeting State Minimum for Affordable Housing Does Not Necessarily Mean Need for Affordable Housing Has Been Satisfied

Posted on April 07, 2010
The Massachusetts Appeals Court held that although when the litigation first began the town was below the state’s ten percent requirement for affordable housing units (the town had under 8%), but the town has now exceeded the mandate, it is nonetheless required to approve construction of proposed additional units that would increase its affordable housing [...

Court Refuses to Defer to Zoning Board Where Plain Reading of Ordinance Suggests A Different Result

Posted on April 06, 2010
The Respondent owns real property in the Village that crosses over two zoning districts ? one portion of the parcel is located in a commercial zoning district, and this parcel houses the Respondent?s current facilities – - a membership club. A second portion is located in a residential district where membership facilities are not permitted...

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