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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

2009 ALI-ABA Land Use Institute ? August in San Diego

Posted on July 07, 2009
The Annual ALI-ABA Land Use Institute is the most comprehensive national planning and land use law course offered regularly across the country. This year, the course site is the Westin Gaslamp Quarter in San Diego, CA. Planning co-chairs Frank Schnidman, Esq...

TX Supreme Court Finds City Ordinance Preventing Use of Homes for Ministry for Released Convicts Violated State RFRA

Posted on July 06, 2009
In 1999, Texas enacted the Religious Freedom Restoration Act (TRFRA) which provides that, ?a government agency may not substantially burden a person?s free exercise of religion [unless it] demonstrates that the application of the burden to the person ...

Special Use Permit for Home Occupation Properly Denied

Posted on July 05, 2009
A denial by the zoning board of appeals for a special use permit to allow the applicant to maintain a home business was not arbitrary and capricious nor contrary to law since the board rationally determined that the Petitioner did not meet the requirement of the Town Code that he reside on the subject premises...

Town?s Request for Supplemental Information Related to Downsizing of Shopping Mall Upheld

Posted on July 05, 2009
After more than eleven years of legal wrangling, the New York Court of Appeals denied cert, finally closing the chapter and letting stand a holding that the Town?s request for a Supplemental Environmental Impact Statement (?SEIS?) in response to a developer?s submission of a mitigated development plan was not arbitrary and capricious...

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NY Court of Appeals Discusses Peculiar Nature of Quarrying for Purposes of Nonconforming Use Status

Posted on July 04, 2009
Concluding that due to the peculiar nature of quarrying, it is unrealistic and unreasonable to require the owner of a large tract of land used for quarrying to have actively mined all areas of the parcel prior to the enactment of a zoning ordinance for purposes of acquiring vested rights in a nonconforming use to [...

Zoning Board May Properly Grant Variance on Second Request Where Circumstances Change

Posted on July 03, 2009
The Respondent requested area variances to permit him to subdivide a parcel into two substandard lots where he intended to relocate a single-family residence currently located on mid-parcel onto one lot, and to construct a new single family residence on the other lot...

Modification to Conditional Use Permit Reducing Number of Parking Spaces Upheld

Posted on July 02, 2009
Dehnert owned a piece of property that was divided by a city street right of way. On the west side of the street, his parcel contained restaurant space, and on east side of the street the parcel contained a marina. Dehnert applied for several variances and an amendment to a conditional-use permit (CUP) issued in [...

Court Remands to Determine Whether Special Facts Exist to Show Moratoria and Delay Were Unreasonable and in Bad Faith

Posted on July 01, 2009
Six months following the filing of a commercial site plan application with the Town Department of Planning, Environment and Land Management to develop a retail building which was a permitted use under the applicable zoning ordinance then in effect, the Department responded with a number of conditions that had to be met before the application [...

Municipalities May Not Consider Comprehensive Plans and Other Land Use Regulations When Determining Whether to Establish an Agricultural Security Area

Posted on June 30, 2009
In June 2007, the Board of Supervisors of East Lampeter Township received a petition by a group of Amish farmers to establish an Agricultural Security Area (ASA) encompassing 13 farms and 788 acres. The farmers were motivated by a desire to discourage nuisance laws that restrict farming and to limit the government?s ability to condemn [...

Property Owner Lacks Standing to Challenge CAFO Located One-Third of a Mile Away

Posted on June 29, 2009
Following approval by the board of zoning appeals of a special exception to allow for a concentrated animal feeding operation (CAFO) which would house 2,000 cows on 27 acres, Thomas, who owned property located one-third of a mile from the site appealed to the circuit court...

Board Properly Denied Requested Relief for Extraordinary Hardship for Auto Dealership

Posted on June 28, 2009
When reviewing a decision of the Town Board which determined that the Petitioner’s proposed uses of the subject property were not permitted under the zoning code, and which after a hearing denied the application for extraordinary hardship relief (to wit, an extension of time in which to obtain site plan approval for a proposed open [...

Town Properly Conducted Environmental Review for Proposed Wal-Mart Project

Posted on June 27, 2009
After determining that the Petitioner homeowners association had standing to challenge the project review since it met its burden of establishing “that at least one of its members would have standing to sue, [and] that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual [...

Municipal Lease for Siting of Cell Tower Did Not Violate Zoning

Posted on June 26, 2009
In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower in the Town. In October 2006, the Town Council voted to authorize the Town to enter into a site lease. Realizing that it had not followed the statutory procedures required to lease municipal property, the Town began taking the necessary [...

Production of Biodiesel Fuel for Off-Site Use is Not a Bona Fide Farm Use for Purposes of Zoning Exemption

Posted on June 25, 2009
Farm owners applied to have a part of their farm rezoned from single-family residential to heavy manufacturing conditional use district for the purpose of allowing for the ?manufacture of soybeans and other crops to biodiesel.? The County Board of Commissioners approved the application and the Plaintiff?s sued...

Commission May Require Bond to Ensure Proposed Farming Activity Will Take Place

Posted on June 24, 2009
In 2004, Deojay purchased property containing an abandoned house, farm debris, overgrowth, and wetlands. In November, he filed an application for a certificate of compliance with the Town noting that there were wetlands or watercourses on the property and he indicated that he intended to use the property for residential use...

Conditions Restricting Hours of Operation, Cleaning and Security for Home Depot Were Arbitrary

Posted on June 23, 2009
An appeals court determined that a number of conditions imposed on the approval of a site plan application for the remodeling of a commercial building in order to open a retail store were arbitrary and hence impermissible. Specifically, the Town Board’s attempt to restrict the hours during which Home Depot could operate its business and [...

SCOTUS Grants Cert in Florida Beach Restoration Case Providing an Opportunity to Address Regulatory Takings

Posted on June 22, 2009
In September 2008, the Florida Supreme Court determined that on its face, the Beach and Shore Preservation Act does not unconstitutionally deprive upland owners of littoral rights without just compensation, and noted that its decision is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act...

White House Releases Report on Global Climate Change

Posted on June 21, 2009
The U.S. Global Change Research Program (USGCRP), which coordinates and integrates federal research on changes in the global environment and their implications for society, produced a report this report entitled, ?Global Climate Change Impacts in the United States...

Imposition of Scenic and Conservation Easement on Issuance of Natural Resources Permit Invalidated

Posted on June 21, 2009
A New York appeals court upheld the invalidation of a scenic and conservation easement imposed by a Town as a condition to the issuance of a natural resources special permit. In annulling the condition, the Court agreed with the trial court that it was arbitrary and capricious, and the zoning board of appeals was ordered [...

Denial of Dunkin? Donuts Request to Renew Special Use Permit for Drive-Thru Window Upheld

Posted on June 20, 2009
In 1986 the zoning board of appeals granted the petitioner a temporary special exception permit for five years to operate a drive-thru window subject to a number of conditions, including a condition that the drive-thru was to be maintained so as not to permit vehicle back-up onto nearby neighborhood roads...

Property Owner Lacked Standing to Challenge Historic Preservation District Ordinance Since it Had Not Been Applied to His Property

Posted on June 19, 2009
David Gehl and DSG Evergreen (collectively, “Gehl”) appealed circuit court orders granting summary judgment to the Town Board of the Town of Perry and Board members in their individual capacity (collectively, “the Town”) and to Dane County and specified county officials (collectively, “Dane County”) and dismissing Gehl’s complaint in its entirety...

Applicant Not Entitled to Parking Waiver Due to Successive Application Doctrine

Posted on June 18, 2009
In consolidated appeals, the Vermont Supreme Court held that the Environmental Court erred in conditionally approving a proposed ten-story mixed use building in the City of Burlington since the second application was not substantially changed from the first...

Municipality May Not Apply Requirements of Zoning Overlay District to Property Not In Its Territorial Jurisdiction

Posted on June 17, 2009
Following an annexation by the Town of a 26-acre parcel owned by the appellants in 2004, the Town created an overlay zoning district requiring certain improvements along a state road that fronted the parcel. When the appellant sought a development permit and variance exempting the property from the required improvements for Phase I of their [...

First Amendment Retaliation Claims Dismissed After City Sought Removal of Critical Sign

Posted on June 16, 2009
In 1994, Camastro was unsuccessful in his efforts in obtain a zoning variance to construct a four-bay car wash on his property. As a result, without obtaining a sign permit, he put a sign on his lot that read: “THE CITY OF WHEELING HAS CHEATED ME...

Denial of Area Variance Upheld as Board Properly Applied Statutory Test

Posted on June 15, 2009
An appellate court upheld the zoning board’s denial of an area variance, finding that the board properly weighed the relevant statutory factors. The Court noted that the board determined that the requested variance would produce an undesirable change in the character of the neighborhood, that the variance was substantial, and that the alleged difficulty was [...

No Vested Rights in Electronic Sign Where Stipulated Judgment Prohibited Construction Eight Years Earlier

Posted on June 15, 2009
In 1994, the Hallas constructed a retail sales building on their property without first obtaining a permit. Upon inspection, the City determined the building did not comply with building code requirements, and thereafter sought to enjoin the Hallas from operating their business in the new building...

Failure to Follow Statutory Procedures Invalidates Countywide Zoning Ordinance

Posted on June 14, 2009
Following a decision by the County Commissioners enacting an ordinance regulating multi-family dwellings, the ordinance did not apply any rules to property located below 2,500 feet above sea level, The Partnership II brought an action for declaratory relief seeking to have the ordinance declared invalid alleging that the ordinance was adopted without compliance with statutory requirements...

Zoning Verification Letter Did Not Provide Property Owner with a Vested Right

Posted on June 13, 2009
In suit for declaratory and injunctive relief on the theory that the landowner had a vested right to “by right” development of its land under a particular zoning classification, which precluded enforcement of revised zoning provisions requiring a special use permit, the Court noted that the applicable statute gave both the zoning administrator and the [...

Planning Board Properly Granted Waivers to Wal-Mart and Zoning Board Properly Granted Variances

Posted on June 12, 2009
Where the Town Code provided, with respect to special uses, that “[a]ny of the following uses may be permitted upon obtaining a special use permit, provided such complies with all applicable dimensional and other requirements of this chapter?,” the Court said that this means that dimensional requirements could be satisfied after obtaining a variance, noting [...

State Building Code Preempts Local Ordinances

Posted on June 12, 2009
An Ohio Appeals Court held that the State Constitution does not protect local ordinances requiring that homes built within the city have higher ceilings, and lower staircase slope than what was required by the 2005 state code enacted by the State Legislature...

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