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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

NJ Supreme Court Tosses Local Residency Restrictions for Convicted Sex Offenders

Posted on May 18, 2009
The New Jersey Supreme Court upheld the appellate court?s judgment striking down ordinances in Cherry Hill Township and Galloway Township that established residency restrictions that formed buffer zones for convicted sex offenders living within their communities...

Appeals Court Overturns Denial of Site Plan for Tractor Supply Store as Board?s Decision was Arbitrary, Capricious and Irrational Based on the Record

Posted on May 17, 2009
The planning board denied petitioner’s application for a site plan approval on the grounds that the proposal includes impermissible sidewalk retail pursuant to the town’s zoning law. However, the Court found that the term “sidewalk retail” was not defined in the zoning law and concluded that its meaning is ambiguous...

California Supreme Court Upholds Use of Public Funds for Communications Addressing Merits of Ballot Measure

Posted on May 16, 2009
Salinas residents proposed an initiative measure that would reduce and eventually repeal the city?s utility users tax. The city council adopted a budget listing the facilities that would be closed and programs and services that would be eliminated if the measure passed...

Nassau County (NY) Enacts Smart-Growth Requirements for Subdivision Developments

Posted on May 16, 2009
The following is excerpted from a press release issued by Nassau County Executive Tom Suozzi. The new rules adopted by the County will streamline the development process and require developers to include plans for “smart” designs, expand public notice requirements for pending subdivision applications, and enact stricter penalties for developers who advertise or construct subdivision projects [...

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Variance Denial for Rear-Yard Setback Upheld Where Board Applied Statutory Balancing Test

Posted on May 16, 2009
An appeals court upheld the zoning board’s denial of an area variance for a rear-yard setback where the board engaged in the required statutory balancing test and considered the relevant statutory factors. Specifically, the Court determined that the Board’s findings that the requested variance was substantial, that it would produce an undesirable change in the [...

Appeals Court Dismisses Section 1983 Suit against Municipal Officials Alleging Eminent Domain Was Used in Retaliation

Posted on May 16, 2009
In 1995, Sable purchased a parcel of property immediately north of a City public-works facility that included a fenced-in strip of land that had been the south half of a City street. Sable’s position was that the strip belonged to him through his predecessor’s in title adverse possession...

Condemnation Proceedings Not Preempted by National Housing Act Nor by Multifamily Assisted Housing Reform and Affordability Act

Posted on May 16, 2009
The City sought to acquire, through eminent domain, an apartment complex that the City believed was so run-down that it constituted a public nuisance. New West, the partnership that owned the complex, had accepted a federal subsidy under �8 of the Housing Act of 1937 (providing federal rent subsidies for low-income tenants), and took out [...

Town?s Policy Requiring Notification to Civic Association as Part of Application Process Found Unconstitutional

Posted on May 15, 2009
Justice Jeffrey Arlen Spinner, sitting in the New York State Supreme Court, Suffolk County, recently granted relief to Petitioners asking for court intervention to compel a Town to process a subdivision application. The application, which met all the requirements of the Code, did not require any variances and had been with the Town?s Planning Department [...

Cancellation of Development Deal by New City Administration Does Not Violate Developer?s Civil Rights

Posted on May 14, 2009
The 6th U.S. Circuit Court of Appeals ruled a developer whose condominium project on land to be purchased from the city died after a new administration took office failed to establish any violation of its due process or equal protection rights. Beginning in December 2003, Taylor Acquisitions and Taylor, Mich...

Building Inspector Lacked Authority to Issue Permit for Fence Without Site Plan Approval

Posted on May 13, 2009
After�finding that the trial court�incorrectly determined that the petitioner lacked standing to challenge the determination of the zoning board of appeals which, after a hearing, upheld the issuance of a� building permit by the building inspector to allow the installation of a 48-foot by 20-foot fence for purposes of creating an impound lot, the appeals [...

Where Religious Order Fails to Follow Zoning Procedures RLUIPA Claim Not Yet Ripe

Posted on May 12, 2009
Plaintiffs, a religious order recognized by the Catholic Church, has owned a house in a residential area of the Township since 2002 where several church leaders reside.� In addition, the order holds regularly scheduled Bible study classes at the house during the week, and religious services also take place in a chapel in the home...

Demolition and Debris Processing Facility Allowed to Continue Without Special Use Permit

Posted on May 10, 2009
�While a municipality does have authority pursuant to its police powers to impose conditions on certain uses, even pre-existing nonconforming uses, for purposes of protecting the public health, safety and welfare, in this case, the town zoning ordinance did not in this case does not regulate the operation of construction and demolition debris facilities it [...

McDonald?s Litigation Reinstated after Appeals Court Determined That Failure to Join Necessary Parties Was Not Fatal

Posted on May 10, 2009
Petitioners sought to annul the approval of various applications submitted by McDonald’s USA, LLC for the construction of a restaurant. The trial court dismissed the petition because the petitioners failed to name all of the owners of the subject property, these were necessary parties, and at that point in the proceeding, the statute of limitations [...

Court Awards Attorney Fees in RLUIPA Case Where Plaintiff Secured Injunctive Relief

Posted on May 09, 2009
At issue was whether Layman Lessons was entitled to attorney fees and costs after prevailing in a RLUIPA action wherein it secured injunctive relief. Two weeks after filing its complaint the court entered an agreed order for an arrangement which provided that the City of Millersville was temporarily enjoined from enforcing against Layman Lessons a [...

Upcoming Affordable Housing Conference

Posted on May 08, 2009
The National Housing Conference and the Center for Housing Policy are presenting a multi-day conference in Chicago June 28-30, 2009, Solutions for Working Families: 2009 Learning Conference on State and Local Housing Policy. The conference is designed for state and local leaders, planners, elected and appointed officials, housing and smart growth advocates, community development [...

Government Officials and Private Citizens May Not Be Sued in Their Personal Capacities for Alleged RLUIPA Violations

Posted on May 07, 2009
The Plaintiff owned a series of properties collectively referred to as Moxley Farm, for which he had agreement to sell the land to the Ahmadiyya Movement of Islam, Inc., a corporation representing the Ahmadiyya Muslim Community (AMC). The AMC, founded in 1889, includes approximately 15,000 members and 45 mosques in the United States...

Prohibition of Churches Close to Urban Growth Boundary Violates Equal Terms Provision of RLUIPA

Posted on May 06, 2009
The Oregon Land Use Board of Appeals determined that the County?s refusal to allow a dwelling to be used as a church or religious retreat center with overnight accommodations on land within three miles of the urban growth boundary on a parcel zoned exclusive farm use (EFU), violates the Equal Terms provision of the Religious [...

ABA CLE on the Religious Land Use and Institutionalized Persons Act (RLUIPA)

Posted on May 05, 2009
On Wednesday, May 6, 2009, the ABA State and Local Government Law Section will be offering a teleconference/live audio CLE on the Religious Land Use and Institutionalized Persons Act (12:00PM - 1:30PM� ET; 11:00AM - 12:30PM� CT; 10:00AM - 11:30AM� MT; 9:00AM� - 10:30AM� PT)...

IMLA Offers Teleconference CLE Series on Land Use Mondays

Posted on May 04, 2009
The International Municipal Lawyers Association will be hosting a series of teleconference CLE programs for municipal attorneys on a range of issues of interest. The audio-conference series on land use, hosted by Professor Daniel Mandelker (Howard A...

Language of Noise Ordinance Unconstitutional as Impermissibly Vague

Posted on May 04, 2009
After the owners of a club, located on the ground floor of a hotel in Virginia Beach, were repeatedly warned about sound levels resulting from music played by disc jockeys and occasional “live” entertainment groups, they were issued citations for violation of the City Code section dealing with noise...

Mandamus Cannot Lie Where Board Already Made a Decision on Conditional Use Permit

Posted on May 03, 2009
Following the granting of a conditional use permit to allow a gravel pit operation on certain real property, Beasley purchased the property. The zoning administrator determined that the conditional use permit remains with the property, but when neighbors appealed, the zoning board denied the transfer of the permit to Beasley...

Sex Offender Residency Restrictions Remain Controversial Topic

Posted on May 03, 2009
Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large?by one report there are some 550,000 registered sex offenders nationally...

Failure to Provide Proper Notice Requires Annulment of Use Variance

Posted on May 03, 2009
� Following a denial of a special use permit, the Zoning Board of Appeals granted the respondent a use variance to allow him to use property he inherited in an RA-40 zone (permitted uses are residential and agriculture) for mining purposes. Petitioners, neighboring property owners, challenged the variance on the grounds that they did not receive [...

Property Owners Failed to Timely Raise Objection to Planned Unit Development Classification in Conditional Use Permit Proceeding

Posted on May 02, 2009
The Saint Louis County Planning Commission granted a conditional use permit to Big Lake Properties for the conversion of an existing resort into a common interest community, as well as approving 11 new cabins to the resort already consisting of 13 cabins and a 3,418-square-foot lodge on 23 acres...

Variance Required to Add Second Floor to Nonconforming Building Even Where No Changes Are Required to Existing Footprint

Posted on May 01, 2009
The zoning board of appeals denied Moon?s variance application to enable her to add a second floor to an existing nonconforming building without altering or expanding the existing footprint of the building. The Board found that the proposed expansion would not be in harmony with the surrounding neighborhood and that Moon had failed to establish [...

Gas Wells Not Exempt from Local Zoning in Pennsylvania

Posted on April 30, 2009
The Pennsylvania Supreme Court concluded that a local zoning ordinance requiring a conditional use permit for extraction of minerals that was applied to a application for the drilling of gas wells, was not preempted by the State Oil and Gas Act (58 P...

Use Variance for Parking Lot in Residential District Upheld

Posted on April 30, 2009
Following the granting of a use variance to convert a parcel in a primarily residential zoning district into a commercial parking lot, neighbors appealed. Although they waited until after the parking lot was completed, the Court noted at the outset that this did not moot the petitioner’s appeal...

Board May Hire Outside Consultant and Require Applicant to Pay Fee, But Board May Not Succumb to Community Pressure in Application Review

Posted on April 29, 2009
A New York Appellate Court reaffirmed that a Town Board, when reviewing a complex and difficult application, has the discretion to hire an outside consultant and require the applicant to pay the consultant?s fee. The Town Code authorized the action when the Board determines that the ?complexity of the activity, the difficulty on determining [...

Growth Management Reform Proposals Moving Through Florida Legislature

Posted on April 29, 2009
Florida Department of Community Affairs Secretary Tom Pelham has issued a press release this week raising concerns over the House and Senate growth management bills. The following is from the release: Last week, the House voted in favor of HB/CS/CS/SB360, which substantially revised SB360...

No RLUIPA Violation Where Board Denied Conditional Use Permit for Operation of a Church on Main Street Where it Would Inhibit Development

Posted on April 28, 2009
The church began leasing half of a former movie theater in 2004 and, because its use of the site was limited, requested that a real estate agent locate property to accommodate planned growth from its existing 200 to 250 members to 400 members. The real estate agent did not consider undeveloped land, buildings that [...

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