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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

San Francisco Voters Reject Billboard Proposition

Posted on November 28, 2009
Earlier this month, voters in San Francisco rejected a ballot referendum, Proposition D, that would have created a new sign-specific zoning district called the ?Mid Market Arts Revitalization and Tourism Special Arts District.? According to John Rahaim, the City Planning Director, the proposal would have effectively lifted a ban on all new general advertising signs [...

Use of Eminent Domain Approved for Atlantic Yards Project ? State High Court Finds Project Has Public Purpose as Area Meets Blight Definition

Posted on November 28, 2009
This week the proposed redevelopment of an area in Brooklyn, NY known as Atlantic Yards, cleared another hurdle in what is turning out to be protracted litigation. Basing its holding on State constitutional authority that accords government ?broad power to take and clear substandard and insanitary areas for redevelopment,? The New York Court of Appeals [...

California?s Compassionate Use Act Does Not Require Municipalities to Allow Medical Marijuana Dispensaries

Posted on October 01, 2009
A recent case involved the operation of a medical marijuana dispensary in a city where marijuana dispensaries were not an enumerated use under the city?s zoning laws. The city promptly informed the owner of the dispensary that the proposed use was not permitted at any location in the city, denied his application for a business [...

Seventh Circuit Says City Needs More Evidence to Support Secondary Effects Study to Justify Pornographic Litter Rationale as Basis for Regulation

Posted on September 30, 2009
New Albany DVD operates an adult store where customers buy books, magazines, or videos, which they read or watch at home, they do not provide live or recorded entertainment on site. They purchased a piece of property zoned for this use and made renovations to comply with applicable regulations...

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Prohibiting the Keeping of More than Three Dogs without a Permit is Not Unconstitutional

Posted on September 29, 2009
Luper owns a one-acre parcel of land in a rural residential district where she operates a Shetland sheepdog kennel as a hobby with approximately 18 dogs over the age of four months. The City code requires property owners to obtain a use permit before operating a dog kennel in a rural residential zone...

Right to Nonconforming Use Runs with the Land and Not with Temporary Leasehold Interest

Posted on September 28, 2009
Lamar acquired leaseholds on off-premises billboards which were or became nonconforming in 2000 with the adoption of the City?s zoning code. In 2003, the city amended the zoning code to allow for replacement of nonconforming signs subject to certain requirements, and to repeal the 15-year sunset provision for nonconforming outdoor advertising signs...

Decision to Grant Variance after Construction Largely Completed Upheld

Posted on September 27, 2009
Pursuant to a building permit, the owner of the subject property had largely completed an addition to her house when the permit was revoked. She then applied for a permit for an expansion of her nonconforming use and a 28-foot side yard variance in accordance with the work already done...

Zoning Board Has Jurisdiction to Review Determination of Building Inspector

Posted on September 26, 2009
After receiving a building permit, the petitioners began construction of a house on their property, and subsequently they received a certificate of occupancy from the Town building official. Two years later, the petitioners were issued an appearance ticket alleging that the house violated two provisions of the Town Code ? that it exceeded the allowable [...

Applicant Entitled to Project Review Under Conditional Use Permit and Site Plan Regulations in Effect at Time of Application

Posted on September 25, 2009
In 2002, Sisters and Brothers Investment Group (”SBI”) applied for a conditional use permit with the Colchester Development Review Board to operate a convenience store with gasoline pumps on its property. The board denied the application, and the Environmental Court affirmed...

Affordable Housing Continues to Constitute an Inherently Beneficial Use for Purposes of Obtaining a Variance Even Where Municipal Fair Share Obligation Has Been Met

Posted on September 24, 2009
Homes of Hope, Inc. sought to create eight affordable housing units on an .848 acre lot in the township. The lot was located in a residential zone that allowed single-family homes but did permit multi-family dwellings. The lot already housed a building containing four dwelling units...

Tennessee Enacts New Law Surrounding Public Access to Zoning Ordinance and Map

Posted on September 24, 2009
A new law in Tennessee requires the legislative bodies of the cities and counties to authenticate, compile, update, keep, maintain, and make available to the public the current zoning ordinance and map, in either electronic or paper version. The new law creates a presumption that a zoning ordinance and map made available to the public [...

Impact of Hurricane Katrina Sufficient Justification to Support Rezoning

Posted on September 23, 2009
The County Development Commission entered into a contract to purchase 627 acres for use as an industrial park subject to a rezoning of the land from agricultural and light residential to industrial. Following a hearing, the County Board of Supervisors approved the rezoning based on evidence presented post-Hurricane Katrina that demonstrated, among other things, a [...

Town Violated Telecommunications Act In Failure to Allow Provider to Fill Gap in Service

Posted on September 22, 2009
In 2002, Nextel (an Omnipoint/T-Mobile competitor) commenced litigation against the Town of LaGrange after the Town had denied Nextel’s application to replace an existing radio tower with new tower. The Nextel/Town lawsuit was settled in 2004, with the Town agreeing to allow Nextel to construct a new 150 foot monopole tower to replace the radio [...

Right-to-Dry Laws Promote Use of Solar Energy for Clotheslines

Posted on September 21, 2009
Effective September 12, 2009, a new law in Maine designed to promote the use of solar energy and to avoid unnecessary obstacles to the use of solar energy devices declares legislative intent that owners and renters of residential property have the right to install and use solar energy devices, including a solar clothes-drying device...

Wisconsin Appeals Court Finds Municipalities Preempted from Regulating Solar and Wind Energy Systems Where Such Actions Set Policy

Posted on September 21, 2009
The Ecker brothers are farmers who were seeking to expand their wind energy output by supplementing their one wind turbine with additional wind turbines. In order to get funding for the expansion, they needed an acknowledgement letter from Calumet County, which the County refused to grant...

Second Circuit Rules Public Nuisance Law May Be Used to Sue for Injuries from Global Warming

Posted on September 21, 2009
The Court of Appeals for the Second Circuit ruled today that ?public nuisance? law can be used to sue power companies based upon injuries from global warming. Eight states of the US, New York City, and three nonprofit (NGO) ?land trusts? that seek to preserve environmentally sensitive land all sued power companies that own and [...

Revocation of Certificate of Compliance Requires Procedural Due Process

Posted on September 20, 2009
In 2004, the plaintiff purchased land containing an auto repair facility and parking garage located in Long Island, New York. The previous owner obtained a certificate zoning compliance as a preexisting, non-conforming use in 1982. Since that time the property has been used continuously as an auto repair facility/parking garage...

Board?s Denial of Request to Restore Residence and Garage Arbitrary and Capricious

Posted on September 19, 2009
An appeals court held that the denial by the zoning board of appeals of petitioner?s application to restore more than 50% of the floor area of a residence and semi-detached garage was arbitrary and capricious. The Court noted that the residence and garage had been lawfully connected since 1992 by an enclosed breezeway and that [...

Failure to Comply with Statute of Limitations Results in Dismissal of Mandamus Act

Posted on September 18, 2009
The Petitioner brought a mandamus action to compel the zoning board of appeals to hear an appeal from a decision of the building inspector denying her application for a building permit. The Petitioner had a long history with the board as she had been seeking to construct a house located adjacent to a nonconforming marina...

Board Not Required to Act on Incomplete Site Plan Application

Posted on September 18, 2009
The Plaintiffs brought an action seeking to declare that their application for site plan approval is deemed approved by operation of the local zoning law. The Court held that since the application was not complete, the planning board was not required to act upon it...

Following Settlement with Planning Board, Property Owners Barred from Federal Constitutional Claims by Res Judicata

Posted on September 17, 2009
In February 2000, plaintiffs purchased a motel property. Before completing the transaction the plaintiffs claim that they inquired about what permits would be needed to develop the property and were allegedly told that none would be required. By June 2001, the plaintiffs had installed and begun to operate a snowmobile rental business...

Federal Sign Case Stayed Pending Outcome of State Proceedings

Posted on September 16, 2009
In 2008, plaintiff, who constructs and leases billboards, applied to the city planning commission for permission to erect two new billboards. In accordance with city sign ordinances, both applications were accompanied by offers to eliminate an existing sign...

State High Court Upholds Zoning Board?s Denial of Area Variances to Allow for Creation of Two Nonconforming Uses

Posted on September 15, 2009
The New York Court of Appeals overturned a decision of the appellate court reported on this blog in December. The State High Court found that the denial of area variances to allow the petitioner to create two nonconforming lots had a rational basis and was not arbitrary and capricious...

ZBA Had Authority to Grant Variance to Permit Driveway for Landlocked Parcel Regardless of Whether it was a Zoning Matter or a Land Use Matter

Posted on September 15, 2009
Benjamin C. Moore and Alice G. Carter (collectively Moore, unless otherwise noted) jointly owned a parcel of land, designated as Lot 35 on Tax Map 5 in the Town of Mount Desert (?Town?). Lot 35 included a large area of land behind other lots and was connected to Millbrook Road by a thin strip of [...

Enforcement of Improperly Adopted Building Code Did Not to Give Rise to Due Process, Equal Protection, or Malicious Prosecution Claims

Posted on September 14, 2009
Plaintiffs purchased a home in the Village of Four Seasons, Missouri, in 2003. They moved into the home in July 2004, prior to obtaining an occupancy permit. In September 2004, one of the defendants (a Deputy Building Inspector) inspected their home, allegedly finding numerous code violations and offering the plaintiffs the business card for his [...

Denial of Area Variances to Build on Substandard Lot Upheld

Posted on September 13, 2009
Seven years after purchasing property in the Town, the owners applied to the zoning board for area variances to allow them to subdivide the property into two separate lots. The board denied the request. Twelve years after the denial, the owners, a husband and wife, conveyed a portion of property that was improved with a [...

ZBA?s Denial of Area Variance for Parking Upheld as Rational and Not Arbitrary or Capricious

Posted on September 13, 2009
The zoning board appeals denied an area variance for parking that was associated with a mixed use residential and commercial property after the applicant requested the variance to allow for a dentist?s office in the commercial area. The appeals court found that the board properly applied the statutory factors in the balancing test for consideration [...

Variance Approvals to Allow for Two Substandard Lots Upheld

Posted on September 12, 2009
Respondent was granted area variances to allow the subdivision of a parcel into two substandard lots to relocate a single-family residence currently located mid-parcel on one lot, and to construct a new single-family residence on the other. Petitioners appealed, alleging that the granting of the variances was arbitrary and capricious since the board failed to [...

Farm Worker Dwellings are Within the Definition of ?Agricultural Use Structures? and Therefore Exempt from Adirondack Park Agency Jurisdiction

Posted on September 11, 2009
The owner-operators of an organic farm located with the Adirondack Park Agency (APA) and an agricultural district therein obtained a building permit from the town of Essex to construct three single-family dwellings on the farm for purposes of providing housing for farm workers...

Inclusion of Churches in Downtown Revitalization Program Not an Establishment Clause Violation Since Grants Awarded on a Neutral Basis

Posted on September 10, 2009
Plaintiff sought to enjoin the city from including churches in its downtown revitalization program which was created to revitalize and curb any further deterioration of its downtown area. As part of the program, the city reimbursed owners of all buildings up to 50% of the cost of refurbishing the exterior of the building or parking [...

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