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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

NYSDEC Designates Town Board and Not Planning Board as Lead Agency for Waste-to-Energy Facility

Posted on February 08, 2009
In a lead agency dispute between the Town of Montgomery Town Board and Planning Board, NYSDEC Commissioner Alexander Grannis designated the Town Board as SEQR lead agency for a proposed waste-to-energy facility. Taylor Holdings Group (Taylor) currently operates a construction and demolition debris processing facility in the Town of Montgomery...

Sixth Circuit Court of Appeals Finds Mayor Acted with Malice Intent and Violated Substantive Due Process

Posted on February 07, 2009
Joseph Dorr purchased a home next to Larry Salisbury, who was later elected Mayor of the City of Escorse. Dorr?s home was a 90-year old building in need of repair and was considered a legal nonconforming use. He obtained approvals and permit from the City to make significant repairs and improvements to bring the home [...

CA Appeals Court Holds Contract Allowing Waiver of Recording of Final Map Void

Posted on February 06, 2009
The California Court of Appeal has held that a real estate contract that allowed the buyer to waive the recordation of a final map before purchasing a portion of a legal lot violated the Subdivision Map Act and was therefore void at its inception. Sixells entered into a contract to purchase four acres of land [...

CT Appeals Court Upholds Zoning Board?s Approval of Coastal Site Plan Review and Variance Application

Posted on February 05, 2009
Property owned by the Holts was located in a coastal area management overlay district (”coastal zone”) and a flood hazard overlay district (”flood zone”). The Holts wanted to raze the existing house on the property and construct a new one...

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Wind Turbine Law Invalidated for Failure to Comply with SEQRA

Posted on February 04, 2009
In November, I posted a case where the court invalidated the Town of Centerville?s local law on wind turbine siting for failure to take the required hard look under the State Environmental Quality Review Act. In a similar case, the Monroe County Supreme Court has invalidated the Town of Hamlin (NY) wind turbine law due [...

W. Va. Supreme Court Invalidates Zoning Ordinance Not Adopted Pursuant to Comprehensive Plan

Posted on February 03, 2009
In a case hinging on statutory interpretation, the West Virginia Supreme Court traces the legislative history of the planning and zoning enabling acts in the State from the initial enactment in 1931 with changes made in 1959, 1969, 1973 and 2004 with respect to the requirements related to the comprehensive plan and zoning...

PA Appeals Court Holds No Federal and State Preemption by Zoning Hearing Board Conditions on Special Use Permit for Kennel

Posted on February 02, 2009
Following the challenge to the imposition of eight conditions (out of 28 ) on a special use permit to allow the operation of a kennel, the appeals court agreed with the trial court?s determination that the conditions were not preempted by the federal Animal Welfare Act (AWA) nor by the State Domestic Animal Law...

Discussion of Model Statute on Local Land Use Planning Procedures

Posted on February 02, 2009
Last August, the American Bar Association adopted a Model Statute on Local Land Use Planning Procedures. The description of the model statute and its content can be accessed here. Professor Daniel Mandelker of Washington University School of Law in St...

Revocation of Sign Permit and Denial of Area Variance for Sign Upheld

Posted on February 01, 2009
After the building inspector issued a permit for a sign in a residential district allowing a lawn sign to advertise the petitioners? real estate business that was operated out of their home, he revoked the permit and ordered the sign removed upon determining that the sign did not comply with the Town?s Sign and Illumination [...

Zoning Board?s Denial of Area Variances Upheld as Rational and Supported by Evidence in the Record

Posted on January 31, 2009
An appellate court upheld the zoning board?s denial of requested area variances finding that the Board properly weighted the five statutory factors set forth in Town Law 267-b. Specifically, with respect to the issue of whether the requested variances would cause an undesirable change in the character of the community or have an adverse impact [...

Individual Petitioners Had Standing to Challenge Local Law Allowing for Mixed Use Buildings

Posted on January 30, 2009
In 2006 the Town of Huntington amended its Code to permit ?mixed use buildings? in it?s C-6 General Business District. A number of individuals and an association commenced a hybrid lawsuit to annul the local law on the grounds that the Board failed to take the required ?hard look? under the State Environmental Quality Review [...

Beware: Land Use Lawyers Can Be Responsible for Client Felonies When Failing to Report

Posted on January 29, 2009
Attorney Boose, who is licensed in Florida and Nebraska, and his practice in Florida focuses on land use and zoning laws. He regularly appeared before the Palm Beach County Board of Commissioners in Florida, seeking approval of land use, zoning and other real estate matters...

Lawsuit filed Challenging NY?s Participation in Regional Greenhouse Gas Initiative

Posted on January 29, 2009
According to a New York Times blog, Indeck Energy has filed a lawsuit in state court against Governor David Paterson, the Department of Environmental Conservation, and the New York State Energy Research and Development Authority today, claiming that there is no legislative authority for the agencies to implement the cap and trade program (it was [...

Commission Exceeded its Authority in Denying Subdivision Application

Posted on January 28, 2009
The Supreme Court of Delaware held that the planning commission exceeded its statutory authority in denying outright an application for a residential subdivision that fully complied with the county code. Ashburn filed an application for subdivision plan approval to develop a residential subdivision on 243 acres zoned ?Agricultural Conservation? which authorizes one dwelling per acre...

NH Supreme Court Finds Owner of Nonconforming Rental Dwelling Units Had Right to Continue Use as Dwelling Units Regardless of Converting Ownership to Condos

Posted on January 27, 2009
The petitioner, Dovaro, owns a 5,000 square foot lot that contains two buildings housing six apartments and a small cottage. The use of the lot became nonconforming because the lot had too few parking spaces for each dwelling unit under a 2006 amendment to the Town?s zoning code...

CO Supreme Court Holds County Land Use Regulation Banning Use of Chemicals in Mining Preempted by State Law

Posted on January 26, 2009
The Colorado Supreme Court held that Summit County?s ban on the use of cyanide or other toxic chemicals in certain mining operations for all zoning districts in the county is impliedly preempted by the State Mined Land Reclamation act (MLRA), amended in 1993 to give the State Mined Land Reclamation Board (Board) authority over the [...

Use of Injunction to Enjoin Violation of Property Maintenance and Health Codes Valid Tool for County

Posted on January 25, 2009
Over a period of twelve years the property owner repeated violated the County?s property maintenance code by allowing garbage and derelict vehicles to accumulate on his residential property. On four occasions, after being cited by the County, the property owner temporarily brought the property into minimal compliance...

Town Properly Followed Referral Requirement Prior to Adoption of Zoning Amendment

Posted on January 24, 2009
In a declaratory judgement where the plaintiffs sought to annul a Local Law enacted in 2007 to eliminate the planning board?s discretion to approve a longer street in subidivisions having cul-de-sacs, the Appellate Court disagreed with the plaintiff?s contention that the Town was required to provide the County Planning Division with thirty days to review [...

Zoning Board May Condition Variance on Requirement for Reapplication Every Three Years to Continue to Extend Use

Posted on January 23, 2009
In 2000 the zoning board of appeals granted the petitioner a variance to permit the conversion of her one-car garage into a bedroom and bathroom to accommodate the special needs of her severely-disabled, paraplegic son on the condition that petitioner restore the property to its original use should any change in circumstance occur...

Granting of Limited Use Variance Did Not Convert Use from Nonconforming to Conforming

Posted on January 22, 2009
The zoning board of appeals granted Tino?s a use variance in 1983 for a nonconforming motel to enable him to ?erect an addition to [the] existing motel including 15 new units? based in part on a finding that the particular addition would not alter the essential character of the neighborhood...

New Mexico Appeals Court Upholds Damages Award for Due Process Violation

Posted on January 21, 2009
The New Mexico Court of Appeals affirmed a jury award of $8.3 million in damages for a city?s violation of a developer?s procedural due process rights. The court ruled the developer established it had a constitutionally protected property interest in its property?s existing zoning, which the city council violated by not meeting the criteria applicable [...

New Jersey ?Billboardgate? Reforms Do Not Amount to Taking Without a Public Purpose, and Williamson County Ripeness Test Does Not Apply

Posted on January 20, 2009
Following a 2003 billboard scandal in New Jersey where two top aids to the Governor were alleged to have used political clout to arrange for permits to build billboards in highly lucrative locations, even where all outdoor advertising was prohibited, Governor McGreevey created the Billboard Policy and Procedure Task Force to review existing State policies [...

Ninth Circuit Court of Appeals Upholds City Ban on Off-Site Commercial Advertising While Allowing Advertising on City-Owned Property

Posted on January 19, 2009
The Ninth Circuit Court of Appeals held that the City of Los Angeles did not violate the First Amendment by prohibiting most offsite commercial advertising while simultaneously contracting with a private party to permit the sale of such advertising at City-owned transit stops...

District Court Dismisses Complaint Over Denial of Residential Windmill for Failure to State a Claim Upon Which Relief Can be Granted

Posted on January 18, 2009
Following the denial of a building permit in 2005 to enable him to build and operate a residential windmill, the Plaintiff filed a federal lawsuit pro se, alleging that the Town, the building inspector and the zoning board of appeals violated his civil rights...

Eliminating Landfills in Zoning District Valid Exercise of Police Power, Existing Nonconforming Uses May Be Eliminated and Nonconforming Landfill May Not Be Expanded

Posted on January 17, 2009
In protracted litigation over a Town local law enacted in 2005 ?to eliminate the operation of sanitary landfills/demolition landfills in the [Town?s AR-1] zoning district? which provided for the elimination of the uses subject to a special use permit but which allowed the continuation without expansion of any landfill operating under a permit from the [...

Federal District Court Dismisses Conspiracy, Due Process and Equal Protection Claims Against Village and Finds Claims Were Timely Filed

Posted on January 16, 2009
The Rustons, owners of 27 acres of property in the Town of Skaneateles located outside of the Village of Skaneateles, sought unsuccessfully to subdivide and develop their property. The Plaintiffs filed suit alleging that the Town and Village conspired to violate their civil rights by, among other things: having their attorney become the Village attorney; [...

Service of Process on Building Inspector to Annul Determination of Zoning Board of Appeals Permitted

Posted on January 15, 2009
The New York Civil Practice Law and Rules (CPLR sec. 312) allows for service upon a zoning board of appeals by delivery of the notice of petition to the board chairperson or presiding officer, its secretary or clerk, or the town clerk. In the instant matter, the petitioner, a non-profit corporation engaged in religious activities [...

Virginia Climate Change Task Force Report Released With Many Land Use Related Recommendations

Posted on January 15, 2009
On December 15, 2008, the Governor?s Climate Change Commission in Virginia released its final report. Established in 2007 by Executive Order 59, the Task Force organized into the following four working groups producing an initial 150 recommendations: adaptation and sequestration; built environment; electric generation and other stationary sources; and transportation and land use...

Federal Court Judge Orders House that Violates Open Space Restriction to Be Removed

Posted on January 14, 2009
Last week a Federal District Judge ordered the removal of a house in the Town of Wappinger because the house violated open space restrictions put on the land by the Town Planning Board more than four decades ago. The Judge issued the order to remove the house after the United States Court of Appeals reversed [...

Rhode Island Enacts New Procedures to Expedite Permitting for Affordable Housing

Posted on January 13, 2009
Recognizing that ?the slowness and uncertainty of securing permits and regulatory approval from state agencies can impair the viability of affordable housing development, make such development more expensive, and can jeopardize federal and other monies,? Rhode Island has authorized developers of affordable housing to request that a project be classified as a project of critical [...

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