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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

Appeals Court Holds Use of Eminent Domain for Expansion of Private University Unconstitutional

Posted on December 21, 2009
In a case of first impression, an appeals court in New York dealt a blow to the expansion plans of Columbia University which include the use of eminent domain to acquire the last batch of properties in the project footprint. Proposed in 2003, the project will expand the University?s 36-acre campus by building an additional [...

Another Twist in the New York Atlantic Yards Saga

Posted on December 21, 2009
After last month’s eminent domain decision in favor of Empire State Development Corporation (ESDC) and Atlantic Yards developer Forest City Ratner, everything finally seemed to be in place for groundbreaking. The Brooklyn Arena Local Development Corporation (BALDC), was created by ESDC as a private entity to issue bonds for the project...

Fuel Oil Delivery Business out of Residence Violates City Code

Posted on December 20, 2009
An appeals court upheld the City?s determination that the petitioner was conducting a fuel oil delivery business at her residence in violation of the City Code. The Court found that the determination of the zoning board of appeals was not arbitrary and capricious as there was ample evidence in the record to support their conclusion [...

Trial Court Finds Agency Attorney Had No Prohibited Conflict of Interest in Enforcement Proceeding

Posted on December 19, 2009
Property owners petitioned for Article 78 review of determination of Adirondack Park Agency’s enforcement committee, which held that rock structure installed on property constituted a prohibited structure. They alleged that bias was demonstrated by the Agency?s attorney (Van Cott) in his interpretation and application of regulatory provisions...

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Zoning Board Members May Rely on Personal Knowledge When Considering Area Variances

Posted on December 19, 2009
An appeals court upheld the denial of area variances by the zoning board of appeals finding the board?s determination supported by the record which, among other things, shows that the board properly conducted the balancing test required under NYS Village Law sec...

8 out of 9 Board Disqualified for Membership in Organization Opposed to Use Under Appeal

Posted on December 18, 2009
Plaintiffs were alleged to be operating a nightclub on the top floor of the Sawmill Cafe in violation of Borough ordinances prohibiting nightclubs and requiring approval to operate a restaurant/tavern. As a result of the alleged violations, the zoning/code enforcement officer issued a cease and desist letter...

Arkansas Supreme Court Holds City Council Zoning Decisions Not Subject to De Novo Review

Posted on December 17, 2009
PH, the developer, desired to subdivide its property into twenty lots. The developer also sought a rezoning of the property from A-1 (agricultural) to R-1 (residential). The planning commission approved the plat application but denied the petition to rezone...

Petition for Review Filed 32 Days After Request for Rehearing Was Untimely Even Where 30th Day is a Saturday

Posted on December 16, 2009
Petitioners, owners of real property,b objected to the Town?s grant of a variance to an abutting property. The Zoning Board of Adjustment (ZBA) denied the petitioners? request for a rehearing and the petitioners appealed to the superior court thirty-two days later...

Condominium Projects Required to Go Through Subdivision Review

Posted on December 15, 2009
In 2006, the Etzlers received subdivision approval for a project located in the Scenic Corridor Zoning District. However, the original plans were not approved with condominiums. Another developer, Blomgren, recorded documents indicating their intentions of building a residential condominium project in an area that was not within any particular zoning district...

Alternate Board Members Who Are Not Needed to Serve May Not Participate in Deliberations in a Manner that Profoundly Effects Vote

Posted on December 14, 2009
There is little case law on the use of alternate members of planning and zoning boards, but a recent Connecticut trial court opinion sheds some interesting light on the topic. The Court held that where alternate members of the zoning board sit through a public hearing but are not needed to serve as a member [...

Court Overturns Use Variance for Photography Studio in Residential District

Posted on December 13, 2009
The New York Court of Appeals reversed a decision of the appellate court, finding that the zoning board?s decision to grant a use variance for the construction of a commercial structure in a residentially zoned area was an abuse of discretion. The Court said that the zoning board failed to establish that the property was [...

Old Filed Map Exception Applies to Subdivision Application to Make Lot Conform to Current Zoning

Posted on December 12, 2009
Petitioners, who wanted to subdivide their property, applied to the county planning commission for a ruling that the proposed subdivision was subject to the ?old filed map exception? (Real Property Law sec. 334-a(1)(b)), which, among other things, dispenses with the requirement that alterations be filed for a subdivision map that was filed before January 12, [...

Illinois Establishes School Wind and Solar Generation Program

Posted on December 11, 2009
The State of Illinois has adopted a school wind and solar generation program, authorizing the funding through the Finance Authority Act for low-interest loans to school districts and community college districts for engineering studies, feasibility studies, research studies, and construction costs for wind and solar generation projects...

Zoning Board?s Denial of a Variance to Permit a Wall Along Property Line Upheld

Posted on December 11, 2009
An appeals court upheld a variance denial by the zoning board of appeals finding that the board?s interpretation of the language in the local zoning ordinance was reasonable, and that its determination had a rational basis and was not arbitrary and capricious...

Court Disagrees with Zoning Board?s Interpretation that Fence is Subject to Site Plan Review

Posted on December 10, 2009
Following a determination by the zoning board of appeals that petitioners were required to apply for a site plan review prior to erecting a fence on their property, the petitioners appealed. The appellate court concluded, that while the zoning board is typically entitled to deference in their interpretation of the local zoning law, such is [...

Court Upholds Interim Zoning and Finds it is Not Reverse Spot Zoning

Posted on December 09, 2009
Missoula County enacted an interim zoning law to address the public health and safety concerns regarding a proposal to establish a gravel mining, crushing and asphalt production operation on property owned by Liberty Cove. JTL, hired to put a lake on the property, requested a zoning compliance permit from the County as part of the [...

Adjacent Property Owners Have No Vested Right in the Continuance of Setback Restriction on Adjacent Parcel

Posted on December 08, 2009
The Hornes own a townhouse that abuts the rear of a lot on Preston Street. Prior to 2002, the Preston Street property contained a small walkway and townhouse. The property contained a setback requirement limiting construction to no closer than twenty-five feet of the rear property line...

Implementing Climate Change Policy: Looking Forward to the Hard Part

Posted on December 07, 2009
Here is information about an upcoming conference of interest: Implementing Climate Change Policy: Looking Forward to the Hard Part February 5-6, 2010 Cannon House Office Building Washington, DC Co-Sponsors: Columbia Law School, University of Virginia Law School, Vanderbilt University Law School, and the Environmental Law Institute Friday, February 5, 2010 8:00 ? 8:30 am Registration 8:30 ? 10:15 am Setting the Stage Defining [...

North Carolina Amends State Fair Housing Act to Prevent Discrimination in Land Use Decisions or the Permitting of Affordable Housing

Posted on December 07, 2009
The North Carolina General Assembly amended the state Fair Housing Act, making it illegal to discriminate in land-use decisions or permitting of developments based on race, color, religion, sex, national origin, handicapping condition, familial status, or where the development contains affordable housing for families or individuals below 80% of area median income...

New Hampshire Clarifies Process for Election, Rather than Appointment, of Zoning Board Members

Posted on December 07, 2009
New Hampshire has amended its state enabling statutes to provide clarification for local legislative bodies on the option of changing the basis of membership on zoning boards of adjustment from appointive to elective positions. The new law, effective January 2010, further provides that where a local legislative body opts for the change, it may do [...

District Court Dismisses of Complaint Over Residential Windmill Permit

Posted on December 06, 2009
A District court once again upheld the dismissal of a complaint regarding a permit for a windmill after the pro se plaintiff had been given time to file an amended complaint. The Plaintiff, who had claimed, among other things, that the Town and Town officials had violated his rights under the Fourteenth Amendment by denying [...

Denial of Preliminary Injunction over Prohibition on Use of Temporary Directional Signs for Church Services Upheld in Part and Remanded in Part

Posted on December 05, 2009
The Good News Community Church wished to spread the word about its Sunday services by placing temporary directional signs around the Town. The congregation believed that the Bible commanded them to ?go and make disciples of all nations,? and that they ?should carry out this command by reaching out to the community to meet together on [...

Change in Board Membership After Vote on Application but Before Written Decision Does Not Invalidate Vote; and No Ethical Violation in Meeting with Applicant Before Submission

Posted on December 04, 2009
Following zoning board approval of a conditional use permit in December 2005 for a 225,000 sq. ft. Wal-Mart Supercenter and Tire Lube Express Store after 16 public hearings on the application which had commenced in July 2005, neighbors challenged the 2-1 vote to approve since one board a member was replaced on January 3, 2006 [...

Conversion of Barn for Multifamily Dwelling is a Prohibited Expansion of a Nonconforming Use

Posted on December 03, 2009
Prior to the purchase of the property by the petitioner and prior to the current zoning code, a farmhouse located on the subject property had been converted into a three-family dwelling, and thus was a allowed to continue as a pre-existing nonconforming use as multifamily housing is no longer permitted in the district...

Whether a County Fueling Facility is Subject to Local Zoning is a Matter for Judicial Determination

Posted on December 02, 2009
The Town of Riverhead sought to prevent the County of Suffolk from constructing and using a new fueling facility in the Town which would be located on property inside a county park. Among other things, the Town claimed that the County was subject to local zoning requirements...

Equitable Estoppel Does Not Apply Where Applicant Received Building Permit But Had Failed to Submit Required Development Plan Review

Posted on December 01, 2009
In September 2005, Martel purchased property from the Town of Richmond. The property was previously used as a restaurant and was located in the general business district. Martel purchased the parcel with the plans to open an adult entertainment business but he did not inform the town of this intention...

Looking for Ideas on Local Laws Promoting Green Development?

Posted on November 30, 2009
While climate change is not exclusively a land use issue, some of the most effective strategies to slow climate change can be accomplished through modifications to building codes, zoning ordinances and other land use regulations. However, to be truly effective and to attain quantifiable results, local governments must implement a variety of tools and techniques [...

Retroactive Effect of Substantive Changes in Zoning Leads to Remand over Proposed Horse Rescue Facility

Posted on November 30, 2009
Scrimgeour, an adjoining landowner to a 166-acre property in Talbot County currently owned by Fox Harbor, but previously owned by Mrs. Smith, challenged the issuance of a certificate to build a structure with 42,835 square feet of floor area on the property...

Illinois Adopts Green Buildings Act

Posted on November 29, 2009
In an effort to promote energy efficiency in state government buildings, the Illinois General Assembly enacted the Green Buildings Act, requiring all new state-funded building construction and renovations to seek LEED, Green Globes or equivalent certification, and further requiring that all projects receive the highest level of certification practical within the project budget...

Area Variance Denial Upheld Where Board Properly Employed Balancing Test

Posted on November 29, 2009
An appeals court upheld the zoning board?s denial of an area variance where the board properly engaged in the required statutory balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance were to be granted...

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