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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

EPA Publishes Draft Report for External Comment on the Feasibility of Incorporating Climate Change Information Into Land Protection Planning

Posted on January 19, 2010
Comments are due February 1, 2010 on a draft report prepared for EPA entitled, ?An Assessment of Decision-Making Processes: The Feasibility of Incorporating Climate Change Information into Land Protection Planning.” This offers a review of decision-making processes of 19 selected land protection programs for the purpose of assessing the feasibility of incorporating climate change impacts [...

Claims that Commercial and Residential Development Would Interfere With Quiet Enjoyment of Neighboring Property Owners Dismissed

Posted on January 18, 2010
Four plaintiffs in Howard County, Maryland brought suit against the County for depriving them of their rights to substantive and procedural due process after they attempted to appeal administrative decisions. The plaintiffs appealed the approval of the construction of a Wegmans grocery store and of the building of a residential and commercial development project that [...

Planning and Zoning Commission Member and Membership on School Board are Compatible Offices

Posted on January 17, 2010
The Mississippi Attorney General was asked whether the same person can hold two appointed positions within the same municipal government – specifically, the position of board of trustee of a public school district member of the planning and zoning commission...

Town Planning Director Not Required to Meet with Potential Applicant after Litigation is Initiated

Posted on January 16, 2010
Plaintiff is a principal of a development company that obtained the right to acquire land and develop residences. Plaintiff was scheduled to meet with the Town?s Board of Selectmen to extend the Town?s sewer system to the land being developed but the meeting was delayed upon learning that the Plaintiff had a pending lawsuit against [...

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Protest Petition Valid When Only One Spouse Signs and Property is Held as Tenants by Entirety

Posted on January 15, 2010
Typically, a zoning amendment requires only a majority vote of the legislative body in New York unless a protest petition is filed, signed by owners of 20% of the property in the subject area, in which case the board must approve of zoning changes by a three-fourths majority...

Greenhouses, Cold Frames, and Pole Barn Did Not Qualify as Accessory Uses Under Applicable Zoning Ordinance

Posted on January 14, 2010
Plaintiffs own two adjacent parcels of land in the city, referred to as the north and south parcels. Both parcels are zoned “R-1D,” or “single-family residential,” under the zoning ordinance. Thus, the parcels can be used for the purposes described in §§ 10...

Church?s SRO Use Protected Under RLUIPA but Landmarking Law Did Not Violate RLUIPA

Posted on January 13, 2010
The Seventh Circuit issued an opinion combining two distinct RLUIPA cases. Each matter is discussed separately below. World Outreach Church bought a former YMCA building in 2005, and although the building continues to operate as a recreational living facility with space for religious services, the Court notes that ?there is no doubt that even the recreational [...

Commission Identification of RLUIPA Concerns Is Not Equivalent to Basing a Decision on RLUIPA

Posted on January 12, 2010
The Yavneh Hebrew Academy obtained a conditional special use permit (with 36 conditions) to operate a religious day school for orthodox Jewish students. As part of its religious education program, the permit allowed the school to hold indoor Sabbath prayer services that are not open to the general public...

Zoning Ordinance Regarding Density May Not Conflict with Comprehensive Land Use Plan Recommended Maximum Density

Posted on January 11, 2010
In 1999 Charleston County, South Carolina enacted a Comprehensive Land Use Plan (Plan) that called for the preservation of rural community character, the direction of residential development into existing settlement areas, and recommended development densities...

Based on Decision in Previous Case, Plaintiff Estopped from Inverse Condemnation or Regulatory Taking Claim

Posted on January 10, 2010
Plaintiff contended under the defendant-township’s sewer ordinance it was entitled to more sewer connections (taps) than defendant allocated to its property, defendant’s decision denying more taps denied it any economically viable use of the property, and interfered with its investment-backed expectations...

Court Overturns ZBA Denial of Variance for an Accessory Garage Since it Lacked a Rational Basis and was Arbitrary and Capricious

Posted on January 09, 2010
The town zoning ordinance provided regulations in an appendix governing lot area and lot width, front, side and rear yard requirements. In addition, setback requirements for accessory buildings not attached to principal buildings, which differ from those in the appendix where also contained in another section of the ordinance...

Due Process Requires More Than Newspaper Notice of Zoning Change Where Addresses Are Readily Ascertainable

Posted on January 08, 2010
The Illinois Supreme Court held that due process requires more than newspaper notice of a zoning change. In 1996, the City of Zion began the process of amending its zoning ordinance that eventually affected 85 parcels of land changing the zoning from R2 multifamily to R8 residential...

Building Applicant Responsible for Ensuring Conformity with Zoning Law and Town Not Estopped from Enforcing Ordinance

Posted on January 07, 2010
Martel Investment Group, LLC (Martel) appealed from a Superior Court decision granting summary judgment in favor of the defendant, Town of Richmond (town). Martel brought suit against the town, contending that the town should be equitably estopped from enforcing an amended zoning ordinance that prohibited Martel from operating an ?adult entertainment business...

Indoor Shooting Range and Gun Training Facility Qualifies as Recreational Use Under Zoning Ordinance

Posted on January 06, 2010
In July 2005, JRAD Ventures, Inc. (“JRAD”) entered into an agreement to purchase property in the township. The property was located in the township’s RA Rural Agricultural District. On the property, JRAD planned to open an indoor shooting range, gun training facility, and gun and shooting supply store...

Zoning Resolution Adopted in Accordance with County and not Township Plan is Valid Under Ohio Statute

Posted on January 05, 2010
When B.J. Alan Company attempted to construct and operate a state-licensed fireworks store in Congress Township, Ohio, it was forced to apply for a variation from the zoning resolution which was ultimately denied. The land B.J. Alan wanted to build on land that was zoned A-Agricultural pursuant to the zoning resolution adopted by the Congress [...

Court Upholds Ordinance Authorizing Only One Extension for Required Subdivision Plat Approval

Posted on January 04, 2010
Dry Creek Partners, LLC contracted with the owners of property that was to become the Red Hawk Estates subdivision. Prior to the agreement with Dry Creek, twenty acres of the owners? property along with an air, light, and view easement were conveyed to Rockwood Distinctive Homes, LLC...

No Property Interest in a State-Issued Certificate of Operation for Adult Home

Posted on January 03, 2010
The State Defendants contend that Plaintiffs fail to state a claim for a due process violation because they have not alleged a cognizable property interest in an operating certificate and because they failed to take advantage of State Procedures to challenge DOH?s denial of an operating certificate to TZ Manor...

Annexation of Land and Rezoning for Wal-Mart Did Not Constitute Spot Zoning Nor Did it Violate the City Growth Policy

Posted on January 02, 2010
Wal-Mart purchased 28 acres in on land zoned for low-density residential use, and they sought an annexation of the property into the City of Polson and a rezoning to highway commercial to allow for the construction of a store. Although the local planning board opposed the change, the City council approved the rezoning in 2006...

Adult Business Ordinance Withstands Overbreadth Challenge

Posted on January 01, 2010
The plaintiff, the operator of adult bookstores that sold non-obscene, sexually oriented material and restricted admission to adults only, sued the County and the City of Memphis, seeking preliminary and permanent injunctions, as well as a declaratory judgment, on the grounds that the the Tennessee Adult-Oriented Establishment Registration Act of 1988 (Tenn...

Adult-Oriented Establishment Licensing Act Upheld

Posted on December 31, 2009
The Tennessee Adult-Oriented Establishment Registration Act of 1988 (Tenn. Code Ann.,§ 7-51-1101 et seq., ) a county-option law, was adopted by Shelby County to address the negative secondary effects associated with adult or sexually oriented businesses...

Court Upholds College Dormitory Expansion Project Finding it Met Density and Setback Requirements

Posted on December 30, 2009
In 2005, the Burlington Design Review Board approved the college?s application to renovate an existing residential building on its campus and build a new 18,000-square-foot building for student housing. The project would create 49 new student rooms housing 94 students, 39 rooms in the new building and 10 in the renovated building, plus an apartment [...

New Wind Power Article Argues for Cooperative Federalism

Posted on December 30, 2009
Hofstra Professor Ashira Ostrow and your Law of the Land author have just posted a new article that proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA?s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits...

City May Deny Cell Tower Application in Rights-of-Way Based on Aesthetics

Posted on December 29, 2009
The Ninth Circuit Court of Appeals held that the City did not violate the Telecommunications Act of 1996 by denying permission to construct two wireless telecommunications facilities in the city’s public rights of way, as their decision was supported by substantial evidence, and disputed issues of material fact precluded a finding that the decision amounted [...

Petition Pending for Reconsideration of New FCC Rules Setting Timeframes for Governments to Act on Wireless Tower Siting Applications Under TCA

Posted on December 28, 2009
In a 5-0 decision, the Federal Communications Commission (“FCC”) issued new rules, effective November 18, 2009, establishing deadlines for state and local zoning governments to act on wireless tower siting with respect to applications involving personal wireless services covered by Section 332(c)(7) of the Telecommunications Act...

Text Amendment Allowing B&B Inn to Run Restaurant Was Illegal Spot Zoning

Posted on December 27, 2009
The Fairview Inn is located in an historic district in an area zoned R-2 residential and it borders commercial properties. At the time this dispute arose, the Inn was operating as a ?Bed and Breakfast Inn, Class B,? defined as an owner-occupied dwelling a portion of which is available for short-term lodging, and receptions or [...

Ban on Commercial Wind Farm Upheld Based on Aesthetics

Posted on December 26, 2009
After being contacted by a wind farm company that was interested in building wind farms in the county, the zoning administrator notified the Board (the county did not have any zoning regulations regarding wind farms at the time of the contact). The Board then ?passed a temporary moratorium? to accept applications for conditional use permits [...

Dismissal of Fair Housing Act Claim Upheld as Plaintiffs Fail to Show Denial of Building Permits was Either Pretextual or had Discriminatory Effect

Posted on December 25, 2009
?Artisan/American? proposed two developments, each with 36 residential rental units, to be built in the City of Alvin. The City?s Hispanic population is estimated at between 28% and 45% of all residents. The City opposed the developer?s application for state housing tax credits, and submitted resolutions stating that the City already had a greater proportion [...

No Prohibited Conflict of Interest for Commission Chair Who Was Employed by the Municipality

Posted on December 24, 2009
Plaintiffs appealed a decision of the town of Deep River planning and zoning commission (PZC) that granted a special exemption application allowing co-defendant Haynes to excavate/quarry gravel on property owned by Incarnation. After public hearings, the PZC voted unanimously to approve the plan for an initial period of three years...

Zoning Board?s Denial of Variance and Special Use Permit Constituted a Final Denial Under the Telecommunications Act Even Where Limited State Court Review Available

Posted on December 23, 2009
Omnipoint Holdings, a wireless carrier and T-Mobile?s wholly-owned subsidiary, sought to build a wireless communications tower in Cranston, Rhode Island, to remedy a significant gap it found in coverage. The proposed 90-foot tower, disguised as a flagpole, was not in conformance with the City?s zoning ordinances because, given its height, it was too close to [...

Federal District Court Affirms RLUIPA Does Not Apply to Eminent Domain and that Four Year Statute of Limitations Does Apply to RLUIPA Claims

Posted on December 22, 2009
In 2001, Congregation Adas Yerim a religious organization, sought to build a religious complex (a religious school and residential units) on undeveloped property it owned that was zoned for manufacturing use. The Congregation applied for a special use permit at around the same time that the Sanitation Department of the City of New York had [...

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