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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

9th Circuit Court of Appeals Finds City Officials Entitled to Immunity from Alleged Violations of the FHA and Establishment Clause Regarding Homeless Shelter

Posted on February 23, 2011
Community House, Inc. (CHI), a non-profit corporation, operated a homeless shelter and low-income transitional housing in a building it leased from the City of Boise under an Operating Agreement to work closely together in developing a comprehensive strategy to resolve the problem of homelessness...

Federal District Court Denies Summary Judgment Motion on Washington State Energy Code Preemption Provision

Posted on February 22, 2011
A federal district court has denied a summary judgment motion by the Building Industry Association of Washington against the State Building Code Council involving a preemption challenge to the Code. Specifically, Building Industry asserted that certain sections of the new Building Code were preempted by the federal Energy Policy and Conservation Act, Pub...

TN Appeals Court Holds that Board Members Who Recuse Themselves from Rezoning Vote Still are Counted in the Number of Board Members to Meet Majority Voting Requirement

Posted on February 21, 2011
Homeowner sought to have property rezoned for office use. A majority of the legislative body voting on the application did not support the rezoning, particularly because several members had recused themselves. Homeowner filed a petition asking the trial court to deem the application approved even though a majority had not been achieved...

OH Appeals Court Finds Application by Adult Entertainment Establishment Not Subject to Nonconforming Use Regulations but Application was Otherwise Defective

Posted on February 20, 2011
Plaintiff operated an adult-entertaining establishment and sought to expand its building?s office and add a bar area. Township had previously passed zoning resolutions to regulate the zoning of adult-entertainment businesses. The permit application was denied and plaintiff appealed...

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CT Appeals Court Holds Error By Architect and/or Contractor Necessitating Height Variance is a Self-Created Hardship

Posted on February 19, 2011
Homeowners were granted a variance allowing the roof on their dwelling to exceed the town?s 35-foot building height restriction by over 2 feet. Plaintiff neighbors appealed the decision, which the trial court sustained. Defendant Zoning Board appealed and argued that the court improperly sustained plaintiffs? appeal because the hardship was not self-created and because the [...

Wyoming Supreme Court Concludes that Contested Case Hearing is Not Required for Subdivision Review

Posted on February 18, 2011
Gold Properties requested their property be rezoned from agricultural to rural residential and submitted a final plat application to the Public Works Department. The Planning and Zoning Commission recommended denial of the application but Gold was granted a hearing before the Board which determined Gold could pursue his application...

ME Supreme Court Finds Appeal Over Judicial Remand Not Ripe

Posted on February 17, 2011
In the most recent action on a contentious history of litigation over the granting of a conditional use permit to enable a restaurant to offer outside seating, the trial court voided the special use permit and remanded the matter back to the planning board for further consideration...

NY Appellate Court Upholds Denial of Special Use Permit for Parking

Posted on February 16, 2011
The petitioner, owner of an adult cabaret lounge, sought to purchase a lot from the City of Rochester for use as additional parking. Such use would require a special use permit and the contract for sale was contingent upon this approval. Further, the City ordinance prohibits the sale of real property to a purchaser who [...

NJ Appeals Court Upholds Variance Denial Based on Inadequate Number of Parking Spaces

Posted on February 15, 2011
The owner of a nonconforming apartment complex sought to renovate his fifty-five year old building. The building is considered a mid rise apartment under the State’s Residential Site Improvement Standards and under such requires 132.2 parking spaces if the improvements were to be made...

7th Circuit Court of Appeals Upholds Conviction Following Zoning Shakedown by Public Official Upheld

Posted on February 14, 2011
Boone was employed as the housing coordinator for Alderman Arenda Troutman. He was convicted on a number of charges related to political corruption (as was the Alderman) where the government demonstrated that housing developers were forced to pay bribes in order to obtain the Alderman?s support for various zoning permits...

Mass. Land Court Holds Adjacent Property Owners Lack Standing to Challenge ZBA Approval of Permit to Construct 8-Unit Cottage Colony on Cape Cod

Posted on February 13, 2011
In a dispute dating back to 1972 where the property at issue was, was deemed a nonconforming use but a variance was granted to ?allow a change of a non-conforming use, remodeling of the Village store?and change the cottage colony in the rear of the property,? the adjacent property owner had begun to challenge the [...

Montana Supreme Court Finds Rezoning of Land from Agricultural to Heavy Industrial to Permit Electric Generating Station Amounts to Spot Zoning

Posted on February 12, 2011
The Urquharts owned 668 acres of land that they agreed to sell to Southern Montana Electrical (SME), a public utility which sought to construct a natural gas fired electric generating station on the land. In 2007 the Urquharts requested that the county rezone the land from Agricultural (A-2) to Heavy Industrial (I-2)...

Federal District Court Allows Section 1983 Claims to Proceed Where Property Owners Alleged County Officials Intentioanlly Imporperly Recorded Notice of Violation Regarding Hedge Height

Posted on February 11, 2011
Plaintiffs Elan and Reverand Oracle owned property at 396 Tolak Road zoned ?residential agriculture,? that contained a hedge 8-10 feet tall running adjacent to a curving road. Plaintiffs filed a Development Permit Application (DPA) for two circular driveway gates and a fence separating their property from the road...

NY Appellate Court Dismisses Takings Claim on Ripeness Grounds Where Owners Never Filed Application

Posted on February 10, 2011
Plaintiffs commenced an action against the Town of Oswego, alleging that the town failed to build an adequate sewage treatment plant for the subdivision in which their property was located and that, as a result, potential sales of their property were lost, resulting in a taking...

9th Circuit Finds Adult Business Owners Failed to Present Clear and Convincing Evidence to Support Summary Judgment Motion

Posted on February 09, 2011
In the 1970s, acting on information from the police department that crime rates grew at higher rates in Hollywood, an area of the City where adult entertainment businesses were concentrated, the City of Los Angeles passed an ordinance that required that adult businesses be geographically dispersed...

7th Circuit Holds that Denial of Request to Remove Conditions of Previous Re-Zoning Did Not Constitute a Taking

Posted on February 08, 2011
Bettendorf owned property in St. Croix County, zoned agricultural-residential. In 1972, he began to operate a carpet sales and installation business. By 1974, he was also operating an excavating company and a trucking company on the property. In 1984, Bettendorf applied to the St...

District Court Holds that Zoning Board?s Denial of Wireless Approvals Violated Substantial Evidence Rule of the TCA

Posted on February 07, 2011
Plaintiff filed an action against Village alleging violations of the Telecommunications Act of 1996 (TCA) after the Zoning Board of Appeals (ZBA) denied its application for a special exemption permit. Plaintiff, a wireless communication services company, wished to fill gaps in service and applied for a permit to attach six antennas on three additional pipe [...

MA Land Court Finds Property Owner Entitled to Special Use Permit for Deck

Posted on February 06, 2011
Property owner received a building permit to add a deck to his condominium unit but the permit was later revoked by the Town of Marblehead Zoning Board of Appeals (ZBA). After an unsuccessful appeal, property owner filed an application for a special permit, which the ZBA denied...

MA Supreme Court Holds that the State Energy Facilities Siting Board Can Authorize Local Construction Permits for Cape Wind Transmission Lines

Posted on February 05, 2011
NOTE: This decision is from August 2010 and is part of a string of ongoing litigation surrounding the Cape Wind off-shore project. Cape Wind Associates, in its plan to construct a 130 turbine wind farm entirely in Federal waters, sought permission from the Energy Facilities Siting Board to construct transmission lines passing under Massachusetts territorial [...

VT Supreme Court Upholds Permit Where Terms Were Ambiguous and Not Defined in the Zoning Ordinance

Posted on February 04, 2011
Landowner?s home was built prior to the adoption of zoning in the Town. As result of the slope of the land, the house was considered non-conforming as to its front setback because the entire property was within the 100? requirement for Rural Residential districts under the Town?s zoning bylaws that were adopted in the mid-1990s...

11th Circuit Court of Appeals Upholds Adult Use Ordinance

Posted on February 03, 2011
County adopted an ?Adult Entertainment Code? but later amended it to include a zoning ordinance setting forth the physical requirements for adult dancing establishment premises. The County also adopted a public nudity ordinance. Peek-A-Boo brought suit against the County alleging the ordinances were unconstitutional on First Amendment grounds...

Federal District Court Dismisses Claim Noting that Code Enforcement Officer?s Opinion is Not the Same as Seeking Relief from the Zoning Board

Posted on February 02, 2011
Plaintiff resided in a single-family dwelling in Middletown, New York on a hundred and fifty acre parcel of land. In 2005, he was issued a building permit by Defendant, Code Enforcement Officer Davis, in order to construct another single-family dwelling on the same property, which was approved by the Defendant...

NY Appellate Court Finds Town?s Amendments to Open Space Law Failed to Comply with SEQRA?s ?Hard Look Requirement?

Posted on February 01, 2011
Town Board adopted a new comprehensive plan, which set forth new guidelines for land uses in the Town of East Hampton. A committee formed afterwards suggested amendments to the Town?s Open Space Preservation Law. Specifically, the amendments sought to ?increase the percentage of real property required to be set aside for the preservation of open [...

First Circuit Court of Appeals Upholds Ordinance Regulating Student Parties and Gatherings

Posted on January 31, 2011
The First Circuit Court of Appeals has upheld the District Court?s decision upholding a local ordinance designed to address unruly behavior by college students, reported here last March. The Town was located close to the University of Rhode Island (URI) and had a ?thriving rental market among college students...

Federal District Court Finds Town Failed to Comply with Substantial Evidence Requirement of TCA in Denying Wireless Facility

Posted on January 30, 2011
In response to coverage gaps in the Bethpage area, Verizon Wireless submitted an application to the Town of Oyster Bay Zoning Board of Appeals to erect, operate, and maintain a public wireless communication facility with ten wireless panel antennas and an equipment shelter...

NY Appellate Court Finds Property Owner Had Standing to Challenge Proposed Development

Posted on January 29, 2011
A resident who owned property 697 feet from the property line of a proposed development that would permit the developer to utilize a private sewage treatment plant rather than the City of Oswego?s public sewer system appealed a judgment determining he lacked standing to bring a petition under CPLR article 78 against the Town?s Planning [...

District Court Rules Local Law on Signs Violates Free Speech

Posted on January 28, 2011
The Southern District of New York issued an unpublished decision that discusses the various components that into reviewing sign regulations. The District Court ruled that the Village of Airmont sign ordinance violated a political candidate?s First Amendment right to free speech...

Federal District Court Rejects RLUIPA Substantial Burden and Unreasonable Limitation Claims, as well as Constitutional Challenges to City Ordinance Designating Single Church Parcel as Historic District

Posted on January 27, 2011
Our Lady of Hope Parish decided to close on January 1, 2010 due to a decrease in clergy and parishioners. Pursuant to the Canon Law of the Roman Catholic Church, a closed parish may begin the process of deconsecrating church property and so the Dioceses began making plans to deconsecrate the parish...

LA Appeals Court Finds Historic Landmarks Commission Properly Designated Property

Posted on January 26, 2011
Plaintiff, 4140 Canal Street, appealed a prior judgment in favor of the defendants, New Orleans and the New Orleans Historic Landmark Commission, denying a petition to enjoin the classification of the building at 4140 Canal Street as a historic landmark...

NJ Appeals Court Upholds Variance Denial and Dismisses Equitable Estoppel Claim Where Plaintiffs Spent $35k on Addition in Reliance on Permit

Posted on January 25, 2011
The plaintiffs? home is located in a residential area with small irregular lots containing small houses built close to one another. The plaintiff sought and obtained a permit to construct an addition for a second floor bedroom. After having the permit for a few weeks, a zoning officer issued a stop construction order alleging the [...

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