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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

Sixth Circuit Affirms Detroit?s Adult Use Ordinance is Unconstitutional

Posted on September 09, 2009
K & P Incorporated (K & P) has been operating an adult cabaret in downtown Detroit (the Premises) since 1986. It obtained a ?Group D Adult Cabaret? license from the City in 1994, which allowed adult entertainment and ?Legends? began featuring topless female dances in 1997...

Allegations That Minimum Square Footage Zoning Results in Discriminatory Impact/FHA Violations to Proceed to Trail

Posted on September 08, 2009
Prior to 2006, defendant City of Brandon (?City?), Mississippi, enacted a zoning ordinance and a comprehensive plan. Under the plan single-family residences could be constructed in five zoning districts within the City. In June 2006, the City amended the zoning ordinances to require minimum floor spaces for single-family dwellings...

Individual and Association Lack Standing to Challenge Rezoning Due to Lack of Personal Injury

Posted on September 07, 2009
In March, 2008, the Union County Board of Commissioners (County) rezoned property in Union County, South Dakota and issued a rezoning permit to Hyperion, LLC, (Hyperion) for the construction of an oil refinery and housing complex. Ed Cable (Cable) and Save Union County, LLC, (Save Union County) filed an appeal under SDCL 7-8-27 in the [...

Plaintiff Fails to State Claim for Equal Protection Violation

Posted on September 06, 2009
Plaintiff owned property in New Jersey that he wished to subdivide and sell. Several neighbors gained approval to build homes on a road adjacent to the property. The crux of the Plaintiff?s complaint (as liberally interpreted by the Court since Plaintiff was pro se) is that that decision to deny his applications and approve his [...

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Colorado Enacts Solar Ready Homes Law

Posted on September 05, 2009
Colorado Governor, Bill Ritter signed into law the “Solar Ready Homes” bill in May 2009. Introduced as HB 1149, the new law requires homebuilders to offer future homeowners an option for solar pre-wiring, and to provide purchasers with a list of contractors to install such technologies...

Surf School Housed in a Nonconforming Hotel is Not Entitled to Nonconforming Use Status

Posted on September 04, 2009
Respondent, Hans Hedemann Surf School (Surf School), is a commercial surfing school located on the ground floor (Shop #7) of the New Otani Kaimana Beach Hotel (Hotel). When the Hotel was built in 1950, the property was zoned as part of the Hotel and Apartment District...

Proposed Initiatives Regarding Location of New City Hall and Prohibition of Zoning, Eminent Domain and Condemnation in Certain Locations Invalidated on Grounds Proposals Were Administrative in Nature

Posted on September 03, 2009
Appellants, Citizens of the City of Fairway, Kansas, proposed two city ordinances by way of the initiative and referendum authority granted in K.S.A. 12-3013. The first ordinance, entitled ?Restrictions on the Future Relocation of the City of Fairway City Hall? or ?City Hall Petition,? is designed to restrict to City from relocating its city hall [...

Use of Separate Leases for Individuals Occupying a Suite in a Single Dwelling Unit Satisfies Definition of ?Family? in Zoning Code

Posted on September 02, 2009
Cresmont Properties Ltd. (”Cresmont”) owned property near Johns Hopkins University on which they sought construction and occupancy permits for a proposed apartment complex that would contain 26 dwelling units. Each dwelling unit would have four individual lessees in that each individual would have a separate lease agreement with Cresmont to rent one bedroom in a [...

Resort Dock and Swim Float Determined to be Noncommercial Valid Accessory Uses

Posted on September 01, 2009
Lakeside is a condominium association made up of owners of residential units located on Moose Pond in Bridgton, Maine. The property the units are located on is next to Shawnee Peak, a ski resort formerly owned by a company named Pleasant Mountain. In 1997 a permit was issued by the Town of Bridgton to Shawnee [...

Condemnation of Low-Income Housing Not Pre-empted by Federal Statutes

Posted on August 31, 2009
Evergreen Terrace, which contained 356 apartments, participated in the § 8 and § 221 programs since 1960, however in the late 1970?s the owner was in default on the mortgage loans and the Department of Housing and Urban Development (?HUD?) paid off the lenders and became the mortgage holder, foreclosed, and took title...

No Violation of Telecommunications Act Where Denial was in Writing and Supported by Substantial Evidence

Posted on August 30, 2009
Sprint Spectrum alleged that the County?s denial of a special use permit to construct a telecommunications tower violated the Telecommunications Act asserting that the denial was not in writing and that it was not supported by substantial evidence. The Company sought to construct the tower on a parcel just over 7 acres that was owned [...

Potentially Intimidating Code Inspections Did Not to Violate the Fair Housing Act

Posted on August 29, 2009
Plaintiffs, owners of an apartment complex, recently brought a suit against the City of Dallas and specific city officials for allegedly violating the Fair Housing Act (?FHA?), 42 U.S.C. §§ 3601-3019. AHF acquired several properties including Bent Creek Apartments (?Bent Creek?)...

Video Lottery Facility Licenses Would Not be Issued by Commission Where Local Zoning Would Not Permit Such Use

Posted on August 28, 2009
On December 19, 2008, the Video Lottery Facility Location Commission issued a ?Request for Proposals for Video Operation Licenses? and established February 2, 2009 as the submission deadline. The Location Commission responded to questions from potential applicants for licenses and in particular responded to the question ?[i]f an Applicant is awarded a license and then [...

Board?s Failure to Set Forth Reasons for Denial of Requested Modification to Special Use Permit Invalidates Action

Posted on August 27, 2009
In 1992, Wendy?s Old Fashioned Hamburgers of New York, Inc. (Wendy?s) petitioned the Board of Appeal of Billerica (Board) for a special permit and a variance to allow construction of a restaurant with a ?drive-through window.? The proposed restaurant would to be located at the intersection of Boston and Pollard Roads in the town of [...

City Enjoined from Requiring Use Permits for Live Entertainment to ?Maintain? Zoning District Integrity

Posted on August 26, 2009
Plaintiff, the owner and operator of a restaurant, recently challenged a City of Stockton code requiring permits for live entertainment. The stated purpose of requiring the permit was to ?maintain or strengthen the integrity and character of the neighborhood and zoning district? in which the entertainment was to be held...

Licensed Home Occupation/Daycare Violates Restrictive Covenant

Posted on August 25, 2009
Plaintiffs and defendants are next door neighbors in Parkview South Second Addition in Fargo, North Dakota. Their homes are subject to a ?Declaration of Restrictive Covenants and Reservation of Public Utility Easements.? Since purchasing their property in 2001, defendants have operated a licensed day care in their home...

Court Upholds Conditional Rezoning to Allow for Medical and Dental Clinic and Other Commercial Uses

Posted on August 24, 2009
Savala, who owns a parcel of approximately 8.09 acres, located in Canyon County in an ?A? (Agricultural) zone, sought to locate a medical and dental clinic on his property, as well as to promote other commercial uses. In April 2005, Savala submitted an application with the Planning and Zoning Commission requesting: (1) a comprehensive plan [...

Town Rezoning Not Subject to State Environmental Review Since Adirondack Park Agency is Responsible for Environmental Review Standards in the Park

Posted on August 23, 2009
Respondents are potential developers of a project consisting of over 6,000 acres of land in the Town of Tupper Lake (NY), which they were in the process of purchasing from respondent Nancy Hull Godshall, as trustee of respondent Oval Wood Dish Liquidating Trust (?developers?)...

Permit For Gravel Mine Did Not Violate Comprehensive Plan and Concerns Over Loss of Property Value Not Supported by Evidence

Posted on August 22, 2009
The South Dakota Supreme Court ruled a county commission?s decision to grant a conditional use permit for a gravel extraction operation did not violate the county?s comprehensive plan or zoning ordinance, and was not arbitrary or capricious The objections of a neighboring landowner concerned about loss of property value were not supported by probative evidence, [...

Zoning Amendment and Subsequent Revocation of Building Permits Did Not Violate Due Process Property Rights

Posted on August 21, 2009
The O?Neals alleged that their substantive and procedural due process rights were violated because the municipality improperly amended its zoning laws, made misrepresentations regarding the amendment, and improperly revoked their building permits. The Eleventh Circuit concluded that summary judgment for the City on the substantive and procedural due process claims was proper...

Names of Applicants for Master Plan Comprehensive Committee Must Be Disclosed

Posted on August 21, 2009
A Freedom of Information Law request was submitted to a town board seeking the names of all applicants requesting for appointment to the Master Plan Comprehensive Committee. The town denied the request, asserting that it was an unwarranted invasion of personal privacy...

Revocation of Conditional Use Permit For Motorcycle Dirt Track Does Not Violate Constitutional Rights

Posted on August 20, 2009
In 2006, plaintiffs applied for and received a conditional use permit (?CUP?) to operate a motorcycle dirt track on their property. After receiving numerous complaints about the track the county board of commissioners informed that the plaintiffs that the CUP would be reviewed and possibly revoked after a public hearing...

RLUIPA Claims Dismissed as No Land Use Laws Implicated With Animal Sacrifice

Posted on August 20, 2009
The Santeria religion involves sacrifice of live animals during celebrations and ceremonies. A large ceremony takes place when a new priest is initiated into the religion and it generally involves the sacrifice of ?five to seven four-legged animals (lambs or goats), a turtle, a duck, ten to fourteen chickens, five to seven guinea hens, and [...

Court Upholds Electors Rejection of Golf Course Rezoning to Cluster Housing for Seniors

Posted on August 19, 2009
Hawthorne Valley Country Club, L.L.C. (?Hawthorne Valley?) and Hawthorne Golf Estates, L.L.C. (?Hawthorne Golf?) own property containing about 204 acres of land in Ward 5 of Solon. Hawthorne Valley owns about 142 acres, which is currently being used as a golf course, and Hawthorne Golf owns the remainder, which is undeveloped...

Commission?s Denial of Site Plan for Six Mini Stores Upheld as Decision Did Not Violate Due Process or Equal Protection, Nor Was it an Abuse of Discretion

Posted on August 19, 2009
Town and Country Foods, Inc. (T & C) wants to build on its land in a district zoned B-1 according to the Bozeman Unified Development Ordinance (UDO). The B-1 zone is a ?neighborhood business district? and limits buildings to 5,000 square feet. When the City rejected T & C?s proposal to build a 32,000 square [...

State Law Does Not Preempt Zoning Regulating Location of Family Cemetery

Posted on August 18, 2009
A State statute in Arkansas authorizing the state department of health to grant or deny permits for cemeteries did not conflict with a local zoning ordinance requiring a conditional use permit to locate a cemetery in an agricultural zone. Hence, the state statute did not preempt the city ordinance...

RI Supreme Court Finds that Improvements to Nonconforming Use Did Not Violate Zoning Ordinance

Posted on August 17, 2009
The Supreme Court issued a writ of certiorari on the petition of the Inn at Cliff Walk, Inc., d/b/a The Chanler to review a Superior Court judgment that reversed a decision of the Zoning Board of Review for the City of Newport (board). The Superior Court found that a series of improvements made to the [...

Equitable Estoppel Doctrine Applies to Verbal Amendment of Annexation Agreement in Illinois

Posted on August 17, 2009
In September 1997, the Village of Frankfort annexed property subject to an annexation agreement with H & D Development Corporation and State Bank of Countryside. The agreement zones the property ?C-4 PUD? and identifies authorized uses. The agreement remains in effect until September 2017 and states that it is applicable to the parties? successors in [...

Commission Acted Improperly in Approving Site Plan Where Developer Failed to Obtain Required Permits

Posted on August 17, 2009
Colchester, LLC submitted a site development plan application for a proposed retail and development and anchor store (building A) to the Town zoning and planning commission in February, 2002. Without knowledge of the potential tenants of the development at the time the application was submitted, Colchester, LLC only sought a footprint approval for building A...

Historic Desegregation/Affordable Housing Agreement Proposed in Westchester County, NY

Posted on August 16, 2009
County Legislators have until September 25, 2009 to decide whether to ratify a proposed landmark settlement between the federal government and the county which has been signed by the county executive. The proposed agreement would settle a three year old lawsuit alleging that the County took tens of millions of dollars in federal housing related [...

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