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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

Special Use Permit Did Not Lapse Due to Delay in Continued Construction Resulting for Township Sewer Problem

Posted on August 16, 2009
Plaintiffs obtained a special permit from the planning board to construct eighty-four townhouse condominium units in phases subject to a number of conditions. The first permit for phase one was issued in April, 1986 and in March, 1987 the fist occupancy permit was issued...

Removal of Planning and Zoning Commission Chairman Did Not Violate Due Process

Posted on August 15, 2009
Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman. He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission...

NY Governor Issues Climate Action Executive Order

Posted on August 15, 2009
On August 6, 2009, NY Governor David Paterson issued an executive order calling for the preparation of a Climate Action Plan to be drafted by a newly appointed interagency Climate Action Council to be chaired by the Director of State Operations. The Governor announced that it shall be the goal of the State to reduce [...

Use Variance Upheld for Conversion of Historic Mansion to Office Space

Posted on August 14, 2009
The Gibraltar Estate in Wilmington, Delaware consists of gardens and a 17,000-square foot mansion built in 1844. It is located in an R-1 residential zone and is on the National Registry of Historic Places. In 1997, the owners of the estate conveyed the property to the non-profit organization Preservation Delaware, Inc...

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Zoning Board Improperly Denied Special Exception for Access Road

Posted on August 14, 2009
The Town appealed from an order of the Superior Court vacating a decision of the Town?s zoning board of adjustment (?ZBA?) that had denied a special exception to appellees, Continental Paving, Inc. (?Continental?) and New England Power Company (?NEPC?)...

City Violated Telecommunications Act by Failing to Rebut Evidence as to Lack of Alternative Sites

Posted on August 13, 2009
In an effort to expand its coverage in the City of Anacortes (?City?), T-Mobile applied for a special use permit (?SUP?) to construct an additional wireless telecommunications facility (?WCF?) which would consist of a 116-foot monopole antenna for cellular telephone service...

Court Upholds Approval After Planning Board Satisfied with Noise Mitigation Measures for Shooting Range

Posted on August 13, 2009
Country Pond owns and operates a shooting range on 10.75 acres in Newton, New Hampshire. It began operation in 1962, before Newton had adopted its first zoning ordinance in 1973 and specific noise ordinances in 2005 and 2006. Sara Realty purchased a campground west of the shooting range in 1999...

?Shabbos House? RLUIPA Suit May Proceed as Practice of Visiting the Sick Is a Religious Exercise

Posted on August 12, 2009
The most recent issue of Religious Freedom in Focus from the U.S. Department of Justice features the following case summary discussing a matter arising in Rockland County, New York regarding the location of religious housing to allow for visits to the infirmed in a nearby hospital...

Third Circuit Reviews Application of Rooker-Feldman Doctrine Precluding Review of Matters Decided in State Court

Posted on August 12, 2009
Following the denial of a variance request in 2003 to use a single-family home as a boardinghouse, Koynok appealed to the trial court who affirmed the decision of the zoning hearing board. In 2005, Koynok again applied to the zoning hearing board, this time for a special exception to use the property as a boardinghouse...

City?s Refusal to Process Permit for Church Sponsored Homeless Housing Violates State Constitution

Posted on August 11, 2009
In 2004, Northshore United Church of Christ (Church) executed a contract with the City of Woodinville (City) and the Seattle Housing and Resource Effort/Women?s Housing Equality and Enhancement Project (Share/Wheel) for the temporary use of City property for Tent City 4 — a moveable encampment of homeless people...

Club Owner?s Section 1983 Claims Following Invalidation of Rave/Dance Hall Ordinance Barred by Statute of Limitations

Posted on August 11, 2009
Plaintiff, the proprietor of a rave/dance hall, was arrested on four separate occasions in June 2000 for violation of the country?s rave/dance hall ordinance. In response to the ordinance and the County?s actions in enforcing it, the plaintiff commenced an inverse condemnation claim in the United States District Court for the Middle District of Florida...

Synagogue?s RLUIPA Claim Not Yet Ripe for Review

Posted on August 10, 2009
Congregation Anshei Roosevelt is housed in a building that was constructed before any zoning regulations were adopted by the Borough. Subsequent zoning ordinances allow for houses of worship in the District as conditional uses. Although the synagogue does not meet all of the necessary use conditions, it is allowed to continue as a nonconforming use...

Commission Properly Denied Rezoning Request to Permit Residential Development Next to Firing Range

Posted on August 10, 2009
The Plaintiff purchased land in 2005 in Burlington Township that was zoned agricultural. The land is located near a law enforcement firing range, a private shooting range, and a private archery range. In 2007, the Ward County Planning Commission (?Planning Commission?) preliminarily approved plaintiff?s plan for a 12-lot residential subdivision...

Town Officials May Face Additional Sanctions for Actions Following Successful Due Process Suit by Homeowner

Posted on August 09, 2009
The Plaintiff homeowner prevailed against the Town of Islip (?Town?) in a lawsuit for violation of procedural due process. The violation stemmed from the Town attempting to revoke the Plaintiff?s right to maintain a nonconforming use of his property...

Rutgers University Bloustein On-Line Continiung Education Courses for Planners and Land Use Lawyers

Posted on August 09, 2009
Once again, the Bloustein School of Planning and Public Policy is offered a treasure trove of on-line courses for planners, lawyers and other professionals involved in planning and land use regulation. Among the offerings is Current Trends in Land Use Law, which runs from October 21, 2009 through December 5, 2009...

Commission Not Barred from Ruling Contrary to Staff Recommendation

Posted on August 08, 2009
A developer?s expenditure of $50,000 on a subdivision application, relying on a planning commission staff opinion that the project was not subject to the county?s mountain overlay district rules, did not prevent the county commission from taking the opposite position and denying the application...

PA AG Has Authority to Preemptively Challenge Local Regulation of Agricultural Uses as Inconsistent With State Policies

Posted on August 08, 2009
The Attorney General brought an action against Locust Township and Locust Township Board of Supervisors under chapter three of the Agricultural Code (ACRE) which addresses local regulation of normal agriculture operations and provides that they must be consistent with state policies and regulations...

Board?s Denial of Access Road Needed for Senior Housing Development on Abutting Parcel Upheld

Posted on August 07, 2009
Petitioner, BBJ Associates, LLC, owns land that straddles the municipal border between the Towns of Kent and Carmel. It plans to build a multi-family senior citizens? development on a portion of its land located in the Town of Carmel. To that end, it sought to build an access road running through both towns which would [...

Planner?s Conflict of Interest Does Not Require Submission of New Application

Posted on August 06, 2009
Plaintiffs appealed the grant of a preliminary major subdivision alleging, among other things, that the Township planner had a conflict of interest since the initial environmental impact statement (EIS) was prepared by the planner prior to her appointment as the Township a planner...

Town Properly Issued Waiver from CAFO Distance Restriction

Posted on August 05, 2009
Pursuant to a county zoning ordinance in Kingsbury County, South Dakota, a Class A concentrated animal feeding operation (CAFO) ?cannot be situated closer than four miles from buildings within incorporated municipal areas, plus 440 feet for each additional 1,000 animal units over 1,000...

CT Municipalities May Not Require Off-Site Sidewalks as a Condition of Subdivision Approval

Posted on August 04, 2009
On October 6, 2006, the plaintiff (Buttermilk Farms, LLC) filed an application with the Commission seeking approval of a proposed subdivision of its property located in Plymouth (?Town?), into five buildable residential lots. Each lot abuts the southeast side of Lane Hill Road, which is in poor condition...

Municipalities May Regulate Secondary Effects of Adult Business Uses in General, Without Putting Forth Evidence as to the Negative Effects Resulting from Each Individual Business Impacted

Posted on August 03, 2009
In 1994 the City of Charlotte (?City?) enacted an Adult Zoning Ordinance (?AZO?) to protect certain sensitive uses from the secondary effects associated with adult establishments. The ordinance contained an amortization provision that required adult establishments to close or relocate the appropriate distance by January 18, 2002...

District Court Finds Ban on Billboard Extensions Unconstitutional

Posted on August 02, 2009
In November 2000, the City of St. Paul, Minnesota adopted a total prohibition on new advertising signs, including billboards. Existing billboards have since been considered to be legal nonconforming uses. In March 2006 the City amended the Code to ban the use of extensions on all billboards in St...

Failure of Board Members to File Financial Disclosure and Oath of Office Statements Did Not Void Denial of Special Exception

Posted on August 01, 2009
Following the denial of a request for a special exception for construction of 92 single family homes, applicants appealed. Pending a remand from the Pennsylvania Supreme Court for consideration of whether the matter should be reopened because of after-discovered evidence (the deposition testimony of a Board member alleging that other Board members adopted an unwritten [...

Idaho Supreme Court Gives Green Light for Affordable Housing Project

Posted on August 01, 2009
On December 8, 2004, Clear Creek LLC (?Clear Creek?) filed with Blaine County applications for a conditional use permit (?CUP?), for a community housing planned unit development (?CH-PUD?), and for a subdivision permit seeking to develop three parcels of land totaling 23...

Highway Beautification Act Regulations Prohibit Local Governments From Amending Zoning Solely to Accommodate Billboards

Posted on July 31, 2009
The subject property in an R2B zone (one and two family medium-density residential) is located less than 660 feet from an interstate highway and within a ?Billboard Zone? created by the City in 2003 as part of a comprehensive zoning plan. As part of a litigation settlement in 2006, the City issued a permit to [...

Neighbor of View-Obstructing House Fails to Demonstrate Due Process or Equal Protection Injuries

Posted on July 30, 2009
Frog Hollow Builders (Frog Hollow) purchased land in Glen Cove, New York, with the intention of building a residence to sell. Initially Frog Hollow began the process of obtaining a variance to build. After the zoning board requested more information, Frog Hollow altered their plan to one that would not require a variance...

Petitioner Lacked Standing to Challenge Environmental Review Over Consolidation of Manufacturing Facility

Posted on July 30, 2009
In 2007, Beach-Nut Corporation decided to consolidate its two Montgomery County manufacturing facilities located in the Village of Canajoharie and in the Town of Fort Plain respectively with its corporate headquarters located in Missouri. Beach-Nut sought to build a new facility in a business park owned by respondent Montgomery County Industrial Development Agency (IDA) located [...

Unexpended Impact Fees Must be Returned to Owners

Posted on July 29, 2009
At issue is an impact fee ordinance from Anne Arundel County (MD) that provides that if fees ?have not been expended or encumbered by the end of the sixth fiscal year following collection? the Office of Finance shall publish notice of the availability of a refund within 60 days of the end of the fiscal [...

?Rolling? Beach Access Easement May Violate Fourth Amendment

Posted on July 28, 2009
The 5th U.S. Circuit Court of Appeals ruled that a beachfront landowner may have a cause of action under the Fourth Amendment for an unreasonable seizure of her property, separate and apart from a Fifth Amendment takings claim, arising from the state?s imposition of a ?rolling? beach access easement on the property Because it considered [...

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