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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

Area Variance Denial Upheld Where Similar Relief Was Granted to Nearby Property

Posted on February 14, 2010
So long as the zoning board of appeals applies the statutory balancing tests in determining whether to grant an area variance, the fact that the board previously approved a similar application, does not in and of itself establish that the board?s decision is arbitrary and capricious...

Rezoning Invalidated for Failure to Comply with Comprehensive Plan and Failure to Make Required Referral

Posted on February 13, 2010
The Town Board purported to amend its zoning ordinance, but failed to comply with the referral requirements of the New York General Municipal Law sec. 239-m. Such failure resulted in the inability of the Town to legally change the zoning ordinance. In addition, the trial court found that the proposed zoning amendment was conflicts with [...

Proof of Intent to Abandon Nonconforming Use Required, Not Merely Physical Abandonment

Posted on February 12, 2010
A 21-unit apartment building, built in 1955 or 1956, was modified from efficiency to one-bedroom units in the 1980s. In 1993, a not-for-profit company acquired the deteriorated building and announced plans to renovate. Tenants moved out, but no work was done and the building was severely vandalized so that the city had to secure the [...

Denial of Zoning Permit and Communication with Employer about Attendance and Comments at Public Meetings May Amount to Retaliation in Violation of First Amendment

Posted on February 11, 2010
The 6th Circuit Court of Appeals has held that a community resident sufficiently alleged that she was the subject of retaliation for exercising her First Amendment rights. The Plaintiff was an independent insurance agent who did business out of her home pursuant to a special use permit...

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Lack of Zoning Map Doomed Enforcement Action

Posted on February 10, 2010
The Colorado Court of Appeals ruled a county could not bar the operation of a commercial composting business in a zoning district where the business was not permitted as a matter of right, because it could not produce a zoning map establishing the property?s zoning (The Rohrbach family operates a horse manure composting facility on [...

Court Finds that Dominant Use of Proposed Project is for Senior Housing and Not Education

Posted on February 09, 2010
Regis College made plans to extend its campus by adding a facility for senior citizens which was claimed to further the College?s goal of intergenerational and life-long learning. The planned facility, dubbed the Regis East Project, was to include eight buildings, four of which contained classrooms, three libraries, faculty and administrative offices, dining areas, physical [...

Second Circuit Finds Adult Use Ordinance Was Not Void For Vagueness

Posted on February 08, 2010
In this Second Circuit decision the Defendants-Appellants appeal from a previous order form the U.S. District Court for the District of Connecticut which granted the granted the Plaintiff-Appellee?s motion for a preliminary injunction. The District Court concluded that the Plaintiff-Appellee had shown a clear likelihood of success on the merits of its claim that the [...

Local Governments Address Climate Change

Posted on February 08, 2010
The Government Law Center has been examining the role of state and local governments in addressing various aspected of climate change mitigation and greenhouse gas reduction. Below are links to two resources: the first is an article forthcoming in the Houston Law School’s Environmental & Energy Law and Policy Journal that reports on some state [...

Burden of Proof Remains with Subdivision Applicant Before the Board of Appeals

Posted on February 07, 2010
Frizz-King Enterprises, LLC purchased 275 acres in an agricultural zoning district in Queen Anne?s County, Maryland and initiated the process to build a subdivision called ?The Highlands.? Although Frizz-King was able to obtain an adequate public facilities study pursuant to the County?s ordinance to determine the subdivision?s impact on water, sewer, traffic and schools, Grasslands [...

Equal Protection Claim of Leather Manufacturer Dismissed

Posted on February 06, 2010
There are several processes that go into manufacturing leather, including one called beaming. Since 1981, Androme has been involved in the leather manufacturing process but has not engaged in beaming activity. Another facility in the area, JFB, has been involved with beaming since 1968...

Stipulation Allowing Continued Use of Property After Variance Denied Not Enforceable

Posted on February 05, 2010
When Alfred Huard purchased property in a residential zone, he intended to use it for both a residence and operating his transmission repair business. Although the prior owner had obtained a use variance in 1985 which permitted repair of ?carburetors, fuel pump alternators, etc...

Court Holds Defendant is Obligated To Build all Improvements Depicted in Condominium Site Plan

Posted on February 04, 2010
Plaintiff, a common interest community contracted with the original declarant to be developer of the condominium. The original declarant (the bank quitclaimed all rights to the current declarant/defendant in 2002) reserved to itself special declarant rights, including the right to complete improvements on the land, and to exercise development rights on the land...

Reiki Practice Does Not Qualify for Educational Use Exemption Under State Statute

Posted on February 03, 2010
In September 2007 the Building Commissioner for the town of Littleton issued a zoning enforcement order to the plaintiffs, citing that the operations conducted on premises (Reiki practice) were not in compliance with their 2002 variance (permitting the accessory building on the plaintiff?s property to be used for a Reiki practice subject to a parking [...

Board Properly Denied Site Plan Application for Elderly Housing Not in Compliance with State Law

Posted on February 02, 2010
Plaintiff submitted a site plan application to the zoning board (ZB) for approval to build a five-unit elderly housing development. After a public hearing, the ZB denied Plaintiff?s application. Plaintiff appealed to the Superior Court which also denied the application finding that Plaintiff failed to comply with New Hampshire Administrative Rule, Hum 302...

Failure by Board to Comply with Public Meetings Act Invalidates Action

Posted on February 01, 2010
The Wyoming Supreme Court found that a municipal building code appeals board erred in holding a closed or secret meeting on an appeal from the denial of a demolition permit for six homes in a historic district. The Building Code Board of Appeals conducted a public contested case hearing, where the parties were represented by [...

Equal Protection and Due Process Claims Based on City?s Decision Not to Invest in Infrastructure Dismissed

Posted on January 31, 2010
Willets Point is an industrial-zoned neighborhood in Northern Queens, NY that is home to many small factories, garages, auto-shops, and storage areas. The area has storm sewers that are largely in disrepair, the streets are poorly maintained, with worn down (or sometimes never constructed) side-walks and curbs...

Court Dismisses ADA, Due Process and Equal Protection Claims Where Pro Se Plaintiff Failed to Properly Support Claims

Posted on January 30, 2010
In October of 2008 the Township approved a zoning change for a piece of property that would change the use of the property from residential to controlled commercial. Sauers, a pro se plaintiff, filed a complaint claiming that the Township overlooked his rights and the law when they made the zoning decision...

New Hampshire Clarifies Test for Area Variances

Posted on January 30, 2010
An amendment to RSA 674:33, I(b) eliminates the separate “unnecessary hardship” standard for “area” variances, that was established by the New Hampshire supreme court in the case of Boccia v. City of Portsmouth, 155 N.H. 84 (2004), and provides that the unnecessary hardship standard shall be deemed satisfied, in both use and area variance cases, [...

Denial of Conditional Use Permit Does Not Necessitate Environmental Review

Posted on January 29, 2010
The Sunset Sky Ranch Pilots Association (Airport) received a conditional use permit (CUP) in 1971 to operate a private airport in Sacramento County. The CUP expired in 1973, at which point the airport did not renew the CUP but continued to operate the airport...

Takings Claim Not Ripe Where ZBA Failed to Issue a Final Decision on Variance Application

Posted on January 28, 2010
The municipality enacted a zoning ordinance prohibiting the building of any structure more than 900-feet above sea level. The plaintiff sought a permit to build a house at an elevation above the 900-foot limit. The permit was denied and the plaintiff appealed to the Zoning Board of Adjustment (ZBA) requesting a variance...

Wind Energy Incentive Zones Law Upheld; Site Visit to Wind Farm Did Not Violate Open Meetings Law

Posted on January 27, 2010
In a case of first impression, a trial court judge in New York has upheld a local law rezoning two areas in a town as ?Wind Energy Incentive Zones.? In a protracted, and still ongoing battle over the siting of a commercial wind farm in the Town of Italy, the current decision involved both claims [...

Court Awards Attorneys Fees in RLUIPA Case But Notes that Political and Media Related Fees for Services Provided by Becket Fund Are Not Properly Part of Award

Posted on January 26, 2010
Following a jury trial that rendered a verdict in favor of Rocky Mountain Christian Church against Boulder County, but where the jury did not award damages to the Church, the trial judge ordered that the County approve the Church?s special use application within 45 days of the order...

RLUIPA Claim Not Ripe Until a Final Decision Has Been Made on Second Conditional Use Permit Application

Posted on January 25, 2010
In 1996, the Congregation Etz Chaim applied to the City of Los Angeles for a conditional use permit to operate a house of prayer on the residentially zoned Highland property. The application was denied, however, the Congregation and the City entered into a settlement agreement allowing the use conditioned on a number of restrictions...

Court Upholds Area Variance Denial for Above-Ground Swimming Pool

Posted on January 24, 2010
Petitioner?s purchased an 8,400 square foot parcel in a ?barrier beach area? on Fire Island where there are no roads or cars. The zoning ordinance prohibits in-ground swimming pools in the area, but allows for above-ground swimming pools only on lots that are 12,000 square feet or larger...

Subdivision Denial Upheld Absent Required Hardship Exemption from Commission

Posted on January 23, 2010
Petitioners sought subdivision approval of a parcel of land located within a ?Compatible Growth Area? district of the Central Pine Barrens. Following hearings, the planning board denied the application on the grounds that the application failed to satisfy a provision of the town code that requires a hardship exemption from the Central Pine Barrens Commission [...

New Hampshire Law Provides Safeguards to Ensure Reasonable Fees for Third Party Review

Posted on January 23, 2010
Planning boards already have the authority (RSA 676:4(g)) to charge “Reasonable fees?to cover its administrative expenses and the cost of special investigative studies, review of documents?” The new provisions add specificity and transparency to the board?s authority to both require third party review and inspection and to require applicants to obtain or pay for third [...

Substantial Evidence Supported Board?s Denial of Special Use Permit for Summer Rental Property

Posted on January 22, 2010
The owner of a three-apartment, 10-bedroom house that is rented to college students on an annual basis applied to the city council for a special use permit to rent the property during the summer to transients on a weekly basis. Although the use is allowed subject to special use permit, the application was denied based [...

Court Overturns Denial of Permit for ?Monopine? Tower Not Supported by Substantial Evidence

Posted on January 21, 2010
Verizon selected and leased a 1.9 acre parcel of land on which it proposed to erect a 160-foot camouflaged ?monopine? tower because it was the closest available site that met both Verizon?s criteria and that of Jacksonville Ordinance Code section 646...

Enactment of Interim Zoning Ordinance Requires Only Notice and a Hearing, Not Additional Procedures Mandated for Enactment of Permanent Zoning

Posted on January 20, 2010
The board published notice twice in August 2006 and held a hearing to discuss zoning in the Helena Valley. The board passed a resolution of intent to create a zoning district and published a single notice on September 17. Notice was not published the following week, as required by MCA § 76-2-205(5), but the board [...

Failure of Realtor-Board Member to Provide Written Disclosure of Conflict Did Not Invalidate Board Decision

Posted on January 19, 2010
Plaintiff filed with the Zoning Board of Appeals of the Town of Montville two separate appeals on the same day concerning properties at 4 and 6 Glen Road. On April 14, 2004, the ZEO issued a zoning permit to co-defendant John Bialowans for the construction of a single family residence for property at 4 Glen [...

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