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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

Variance Denial for Dock Upheld As Is Finding of Self-Created Hardship

Posted on March 04, 2009

Challenge to Zoning Amendment Adoption Deemed Timely

Posted on March 04, 2009

E-Mail Received After Close of Public Hearing Could Be Considered Since it Contained No New Evidence

Posted on March 03, 2009

General Plan of Development Upheld as Non-Binding on All Interested Parties

Posted on March 02, 2009

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Planning Board Appropriately Considered Resubdivision Potential of All Lots in Proposed Subdivision

Posted on March 01, 2009

DOJ Settles Suit Alleging Zoning Discrimination By Nashville Against Faith-Based Substance Abuse Program

Posted on February 28, 2009

Third Circuit Court of Appeals Finds Developer Has Standing as Option Holder to Challenge Zoning Restrictions

Posted on February 27, 2009

Utah Supreme Court Holds Appeal Period Begins to Run From Date of Notice Not Date of Permit Issuance

Posted on February 26, 2009
The Utah Supreme Court held that an appeal period begins to run from the date when an aggrieved party has actual or constructive notice of permit issuance and not the date of permit issuance. �Following Park City’s approval of a building permit on July 14, 2005 the developer began construction of the project several months [...

Appeal of Conditional Site Plan Approval Time Barred

Posted on February 26, 2009
In response to an effort to dismiss its petition as being outside the 30-day statute of limitations applicable to review of Planning Board approvals of site plans, the petitioner asserted that the Town Board acted without jurisdiction and beyond the scope of its authority when it imposed a condition related to the location of an [...

Sixth Circuit Finds County Licensing Scheme for Sexually-Oriented Businesses Ordinance Constitutional

Posted on February 25, 2009
The Plaintiffs, owners of three adult entertainment businesses, challenged the constitutionality of a Knox County (TN) ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. The district court granted summary judgment for the County(with a minor exception - �the court ordered the severance of two crimes, ?racketeering? and ?dealing in controlled substances,? from the [...

Water Tank Does Not Constitute a Private Nuisance

Posted on February 24, 2009
Town?s construction of a water tank 30 foot-high and 35 feet in diameter on an adjacent parcel does not constitute a private nuisance.� A private nuisance is an intentional interference with a person?s right to use and enjoy his or her property that is ?substantial in nature? and ?unreasonable in character?...

City Department of Investigation May Issue Subpoena to Private Citizen Where Letter Read Into the Record May Have Been Altered

Posted on February 24, 2009
A New York Appellate Court upheld the City of New York Department of Investigation?s authority to subpoena private citizens during an investigation regarding a public hearing before the City Landmarks Commission.� During a hearing, it was alleged that a member of a community group read a letter from the Borough President into the record, but [...

New York Court of Appeals Upholds Condemnation of Farmland

Posted on February 23, 2009
Last month, New York?s high court heard oral arguments in an interesting case involving the condemnation of land as part of the Town?s farmland preservation program. � In a short memorandum opinion issued last week, the Court said upheld the condemnation without addressing the Plaintiff?s Kelo argument, finding that the challenged taking was constitutionally proper even [...

NYC Conflicts of Interest Board Report Reveals Violations of Ethical Conduct in Various Land Use Related Matters

Posted on February 22, 2009
I recently came across a very interesting enforcement report from the NYC Conflicts of Interest Board which summarizes enforcement cases through February 10, 2009.� While these matters are of course unique to application of the NYC Conflict of Interest Law contained in Chapter 68 of the City Charter, the scenarios serve as good reminders concerning [...

US DOJ Argues District Court Erred in Dismissing Mezuzah Fair Housing Suit

Posted on February 21, 2009
Back in July 2008, I reported that the Seventh Circuit held that neither RLUIPA nor the Fair Housing Act applies to regulations adopted by a private condominium association that prohibits the posting of a mezuzah on a doorpost (click here).� According to the latest issue of Religious Freedom in Focus (January/February 2009) published by the [...

Commercial Parking Lot in Residential District Upheld as Legal Preexisting Nonconforming Use

Posted on February 21, 2009
The Respondent owned real property located partially in a Neighborhood Business District and partially in a Residence Two-Acre District.� The property was used for commercial parking. �Subsequent to the use, the Town amended its zoning ordinance which provides that that parking for nonresidential use may not be located in any residence district...

DEC Commissioner Designates Town Board as Lead Agency For Project Adjacent to DEC Owned and Maintained Park

Posted on February 20, 2009
In a SEQR lead agency dispute between the Town of Forestburgh Town Board and the NYSDEC’s Regional Office, NYSDEC Commissioner Alexander Grannis designated the Town Board as lead agency for the proposed Lost Lake Resort, a 2,600 home resort development in Sullivan County, New York...

Appeal of Special Use Permit Denial Dismissed for Improper Service

Posted on February 20, 2009
Following a denial of a special use permit by the zoning board of appeals for the operation of a sand and gravel mine, the petitioner appealed, but failed to properly serve notice upon the municipality.� Service was made on the Village of Fredonia rather than the Town of Pomfret, and although a Village employee delivered [...

In Important Climate Change Case NY Appeals Court Upholds Denial of Site Plan Based On Significant Increase of Air Emissions

Posted on February 19, 2009
Laidlaw Energy and Environmental, Inc. acquired a lumber drying kiln and natural gas fired cogeneration electric power plant in the Town of Ellicottville.� Shortly after its purchase, the facility was shut down.� According to its owner, this was due to the inability to generate electricity profitability due to the rising price of natural gas...

Planning Board Member?s Personal Relationship with Engineering Firm Principal Creates a Prohibited Conflict-of-Interest

Posted on February 18, 2009
For the past ten years. the Chairwoman (Roberts) of the City Planning Board has lived with, and owns a home together with, the principal of the engineering firm that employs the contracted for services of the planning board engineer.� �The Board?s annual contract for engineering services with the engineer acknowledges the relationship of the engineer [...

NYS DEC Launches Climate Smart Communities Initiative

Posted on February 18, 2009
The NYS Department of Environmental Conservation announced the Climate Smart Communities Program, a state and local partnership designed to encourage climate protection.� The agency is promoting a voluntary Climate Smart Community Pledge that can be adopted through a local resolution (a model is provided on the site)...

Utah Supreme Court Holds County Must Hold Referendum Before Allowing Planned Resort Development to Proceed

Posted on February 17, 2009
The Utah Supreme Court found that since residents gathered enough signatures to require a referendum on the County’s 2007 agreement with a developer for a proposed $3.5 million gated club with recreational and residential uses, the county must schedule the vote before it may allow the development to proceed...

NJ Supreme Court Smells a Rat ? Balloon Prohibition Violates First Amendment

Posted on February 16, 2009
A Lawrence Township ordinance prohibited all but a few signs, and it expressly prohibited ?banners, pennants, streamers … portable signs, balloons or other inflated signs (except grand opening signs).?� In 2005, members of the International Brotherhood of Electrical Workers, Local 269, were protesting at Gold?s Gym in the Township because of a labor dispute with [...

1st Circuit Court of Appeals Upholds Dismissal of Takings Claims Pending Decision from FERC on License Termination

Posted on February 15, 2009
Lichoulas owned or served as trustee for five parcels of land that were taken by eminent domain by the City of Lowell in 2006. A hydroelectric power facility was located on the property pursuant to a 1986 license granted by the Federal Energy Regulatory Commission (FERC)...

Bar Association Task Force on Global Warming Issues Report

Posted on February 14, 2009
New York State Bar Association President Bernice Leber created a special Task Force on Global Warming to review and summarize New York?s existing laws and programs�(taking into account the existing and pending federal laws and local initiatives) regarding climate change, and to make specific proposals that the State can implement in a timely and cost-effective [...

Court Upholds Use of Eminent Domain for Wind Energy and Finds That Ethics Allegation Was Procedurally Flawed

Posted on February 13, 2009
Following a condemnation of a portion of the petitioners? property by the Town Board to create easements to enable the placement of underground electricity lines for a wind farm project, the petitioners challenged the action alleging that the Town Supervisor, who cast the deciding vote on both the resolution commencing the condemnation proceedings and the [...

Chicago Landmarks Ordinance Unconstitutionally Vague, Ambiguous and Overbroad

Posted on February 12, 2009
Among other things, the Chicago Landmark Ordinance establishes a Commission to engage in various activities to protect and encourage the continued utilization of areas, districts, structures and buildings that are eligible for designation as a Chicago Landmark...

City Zoning Code Does Not Reach Cyberspace: Adult Activities Inside Residence Broadcast Over the Internet Immune from Zoning Regulations

Posted on February 11, 2009
Following a ruling in June holding that the Plaintiffs, Flava Works, had standing to challenge the application of the zoning ordinance of the City of Miami to its virtual adult use, the District Court granted the plaintiffs summary judgment.� Flava Works operates CocoDorm...

Reasonableness of Amortization Period Requires Fact Specific Inquiry

Posted on February 10, 2009
In 1994, the Plaintiff acquired property that included an asphalt plant that had been in existence since 1945.� In 1985, the Village Board of Trustees amended the zoning code making the use of the property for an asphalt plant nonconforming.� In 2000, the Board of Trustees adopted a local law to amortize the nonconforming asphalt [...

State Regulation of Sign with Religious Message May Violate First Amendment

Posted on February 09, 2009
A federal district court issued a preliminary injunction allowing a sign with a religious message to continue to be located on private property along a state highway.� The Plaintiff, Daniel Burritt, operates a bridge building business which he named ?Acts I Construction, Inc...

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