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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

Best Practices in Teaching Land Use Law

Posted on March 11, 2010
Special thanks to my colleague Professor Mary Lynch at Albany Law School who posted the following on the Best Practices for Legal Education Blog: A new article just posted to SSRN examines Best Practices in the field of land use law. The article, ?Practically Grounded: Convergence of Land Use Pedagogy and Best Practices? is forthcoming in [...

New York City Enacts Comprehensive and Mandatory Effort to Reduce Emissions From Large Buildings

Posted on March 10, 2010
On December 9, 2009, New York City enacted four bills designed to implement the City?s plans to improve energy efficient in existing buildings. The Int. No. 564-A: Legislation that creates a New York City Energy Code that existing buildings will have to meet whenever they make renovations; Int...

District Court Upholds Town Ordinance Designed to Address Unruly Behavior of College Students

Posted on March 10, 2010
As a result of complaints by the Town about ?quality-of-life issues resulting from high turnover and absentee landlords? who owned student housing which resulted in ?overcrowding, property abuse, excessive traffic, noise, litter public drunkenness, underage drinking and fights,? which the Town viewed as results of large gatherings of people, including parties, and as a result [...

County Properly Relied on Secondary Effects Studies in Enacting Ordinance to Prevent Sale, Possession and Consumption of Alcohol in Adult Entertainment Clubs

Posted on March 09, 2010
Plaintiffs. owners of strip clubs in the county, brought a First Amendment challenge to a county ordinance prohibiting the sale, possession and consumption of alcohol in adult entertainment clubs. The County relied on statistical, surveillance, and anecdotal evidence, the live testimony of the chief of police and the chief judge of the juvenile court, and [...

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County Code Provisions on Subdivision in Agricultural Zone Void Where the Definition Sought to Enact Standards Inconsistent with Applicable Zoning Regulations

Posted on March 08, 2010
Tetra Associates owns land zoned Agricultural. Tetra applied to divide its property into five residential lots and after review, the Planning Department informed Tetra the subdivision did not comply with County Code. Tetra filed an action for declaratory relief stating that the County Code was void ?to the extent it requires that [Tetra?s property] be [...

No Conflict of Interest Where Board Member?s In-Laws Had a Connection to Adjacent Property

Posted on March 07, 2010
Plaintiffs appealed the granting of a permit to extract gravel by the planning and zoning commission (PZC), alleging a conflict of interest because the mother and father-in-law of one of the PZC members had a connection to the property that adjoins the property in question...

Detailed Minutes of Board Meeting Sufficient to Satisfy the ?In Writing Requirement? for a Permit Denial Under The Telecommunications Act

Posted on March 06, 2010
Bell Wireless, LLC, a wireless service provider, wanted to close a gap in cell phone signal coverage and applied for the necessary conditional use permit (CUP) to construct a wireless communication facility on property owned by the Helches and zoned ?Agricultural...

Comments Due March 12th on HUD?s Proposed Sustainable Communities Planning Grant Program

Posted on March 05, 2010
In the 2010 Budget, Congress provided a total of $150 million to HUD for a Sustainable Communities Initiative to improve regional planning efforts that integrate housing and transportation decisions, and increase the capacity to improve land use and zoning...

Rezoning is a Legislative Action Subject to a Referendum Vote in Utah

Posted on March 05, 2010
Friends of Maple Mountain, Inc. filed a petition of referendum asking the City Council to subject a new Planned Development zoning designation for property located at the base of Maple Mountain to a vote by the citizens of the city. Friends of Maple Mountain, Inc...

Tangential Relationship without Bias, Prejudice or Prejudgment is Insufficient to Warrant Recusal of Law Firm

Posted on March 04, 2010
Where a county zoning administrator granted a zoning permit for the construction of a proposed wind energy facility, an objector appealed to the zoning hearing board (ZHB) claiming that the application contained 28 deficiencies, and the ZHB dismissed the appeal...

Area Variance Denial Upheld Where Petitioner Failed to Offer Proof of Irregular Conduct

Posted on March 03, 2010
Where the petitioners failed to put forth any proof that the zoning board failed to follow its own precedent without an explanation, and failed to show that there were any prior zoning board decisions with sufficient factual similarity to even warrant such an explanation from the board, the appeals court upheld the area variance denial [...

Board?s Conditional Subdivision Approval that Waived Recharge Basin Requirements Upheld

Posted on March 02, 2010
Following the submission of a preliminary subdivision map for approval, the planning board adopted a negative declaration under the State Environmental Quality Review Act, finding that the subdivision would not have a significant impact on the environment...

Denial of Subdivision Application Upheld As Topography Rendered Project Unsuitable

Posted on March 01, 2010
Plaintiff filed an application with the town zoning commission (commission) to subdivide 155 acres of land that consisted of wetlands, slopes, and rocky ledges into residential areas. The commission denied the application because it did not comply with the applicable subdivision regulations since the topography rendered it unsuitable...

Missouri Appeals Court Modifies Language of Ballot Initiatives on Eminent Domain

Posted on February 28, 2010
In December 2008 three petitions for ballot initiatives to amend constitution to restrict the use of eminent domain, barring takings for private ownership, we submitted to the Secretary of State. Pursuant to state law, the Secretary of State forwarded the petitions to the State Auditor for preparation of the fiscal note and fiscal note summary...

Affordable Housing Refresher

Posted on February 28, 2010
Last year I had the opportunity to visit Barcelona, Spain for the purpose of participating in a government sponsored program on affordable housing. My paper, ?Affordable Housing, Distribution of Powers and Economic Crisis in the United States,? has been published in Barcelona...

CT Appeals Court Rules Planning and Zoning Commission May Not Reconsider Approval More than 15 Days After Decision

Posted on February 27, 2010
The planning and zoning commission approved plaintiff?s request to remove 200,000 cubic yards of earth material from his property to create hayfields and pastureland without requiring a special permit since the removal of earth material was incidental to agricultural operation as detailed in the plaintiff?s engineer-designed site-plan...

New California Law Authorizes Counties to Adopt Ordinances Regulating the Installation of Small wind Energy Systems

Posted on February 26, 2010
In furtherance of state policy to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their use, counties in California may now adopt an ordinance regulating installation of small wind energy systems and establish a process for the issuance of conditional use permits for these systems...

Planning Board Exceeded its Authority in Relaxing Setback Requirements for Affordable Housing

Posted on February 25, 2010
The planning board issued a special use permit to build a municipally sponsored affordable housing project that would contain six buildings with eighteen affordable units on a 71,000 square foot lot. At issue was whether the board had discretion to reduce the minimum lot area requirements contained in the intensity of use scheduled set forth [...

Mobile Home Park Not a Grandfathered Nonconforming Use Since it Was Not In Use When County Enacted the Zoning Change

Posted on February 24, 2010
Hiwassee Village Mobile Home Park, LLC (“Hiwassee”) owned and operated a mobile home park (the “Park”) in the county. In 2002, the county’s planning commission (the “Commission”) sued Hiwassee. The Commission alleged that Hiwassee was operating the Park in violation of the county’s Private Act...

No Open Meetings Law Violation Where Board Members Met with Zoning Commissioner and County Attorney After Court Hearing

Posted on February 23, 2010
A unscheduled gathering of four members of a five county board, as well as a the county attorney and the county zoning administrator to discuss a court decision setting aside the board?s rezoning decision immediately after the court decision did not constitute a meeting subject to the open meetings law...

NYC?s Billboard Restrictions Upheld

Posted on February 22, 2010
The Second Circuit Court of Appeals upheld certain provisions of the New York City Zoning Resolution which, the plaintiff-appellants argued, imposed unconstitutional restrictions on commercial speech. The main plaintiffs in this case were Clear Channel Outdoor Inc...

CEQ Issues Draft Guidance on Considering GHG Under NEPA Review

Posted on February 21, 2010
Last week, the U.S. Council on Environmental Quality (CEQ) released for comment draft guidance on the consideration of greenhouse gases under the National Environmental Policy Act. The public comment period is 90 days. In addition to comments on draft guidance document, CEQ also requests comment on land and resource management issues, including: 1...

Association Failed to Establish Standing to Challenge Approval of Land Management Plan

Posted on February 20, 2010
The Tennessee Valley Authority (TVA) completed the 11,183-acre Tims Ford Reservoir in 1970. In 1998, the TVA and the Tennessee Department of Environmental Conservation (TDEC) agreed to create a land management and disposition plan for the 6,453 acres of government land at the Reservoir and prepared an environmental impact statement (EIS)...

Model Policies for Greenhouse Gases in General Plans

Posted on February 20, 2010
The California Air Pollution Control Officers Association (CAPCOA) has published a guide entitled ?Model Policies for Greenhouse Gases in General Plans,? which provides background information examples, references, links and a systematic worksheet to help local governments as they move toward Greenhouse Gas considerations in general plans and climate action plans...

Condemnation Upheld Where Public Purpose Was Traffic Safety and Not Economic Development

Posted on February 19, 2010
A citizen challenged the City of Omaha?s authority to condemn land for a deceleration lane for road that leads to development that will include a large retail store (a Wal-Mart) on the grounds that such condemnation is primarily for an “economic development purpose” in violation of state statute...

Board?s Denial of Special Use Permit for Methadone Clinic Based on Parking Overturned

Posted on February 18, 2010
The subject property, containing a building previously used as a tavern/restaurant, is located in a commercial district, and consists of four lots that are adjacent or across the street, and are identified as a single tax parcel. The tenant?s application to operate a methadone clinic with 52 off-street parking spaces was denied on the ground [...

Commission Properly Considered Campus Plan and PUD Together

Posted on February 17, 2010
The District of Columbia Court of Appeals ruled the city?s zoning commission committed no error in reviewing a university?s 20-year campus plan and application for first-stage approval of a PUD together. The court rejected a neighborhood association?s contentions that the joint review was improper and the commission should have delayed its review until completion of [...

Statute of Limitations Not Satisfied Until Process is Actually Served

Posted on February 16, 2010
Plaintiffs filed an application for a special use permit to continue their preexisting sand and gravel mine. Following public hearings, the application was approved subject to certain enumerated conditions. Plaintiffs appealed, challenging the imposition of the conditions...

What Technological Inventions Over the Last 50 Years Have Had the Greatest Impact on Urban Planning and Land Use Law?

Posted on February 16, 2010
Law of the Land Readers - I am preparing a presentation/article on the impact of technology and urban planning and development (both practice and law) over the last 50 or 60 years. I am curious as to what changes you have observed and what technologies you think have been most significant...

Condo Owners May Allege FHA Violations Based on Association?s Interpretation of Rules Dealing With Hallway Display of Religious Symbols

Posted on February 15, 2010
The Bloch family has lived in the Chicago condo for more than 30 years and Mrs. Bloch was on a rules committee that, in 2001, enacted a prohibition on ?mats, boots, shoes, carts, or objects of any sort? in the hallways outside their doors. The Blochs are observant Jews and their beliefs require that they [...

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