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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 Appeals Court Invalidates Revised ?Third Round? of Council on Affordable Housing ?Fair Share? Rules and NJ Assembly Passes Bill to Abolish COAH Which is Expected to be Vetoed

Posted on January 24, 2011
The Fair Housing Act (N.J.S. 52:27D-301) authorizes the Council on Affordable Housing (COAH) to determine the affordable housing obligations of municipalities and develop mechanisms for meeting those obligations. If COAH certifies a plan, the municipality is granted substantial protection from exclusionary zoning suits...

NJ Appeals Court Upholds Reversal of ZBA?s Variance Denial Finding Proposed Use Would be Inherently Beneficial

Posted on January 23, 2011
The plaintiff had applied for a use variance to construct an additional parking area on a lot adjoining the existing bus depot and parking lot so as to reduce over-crowdedness and accidents. They also applied for a bulk variance so that the lot could be constructed of gravel, instead of asphalt...

NYS DEC Publishes Proposed Changes to Environmental Assessment Forms

Posted on January 23, 2011
The New York State Department of Environmental Conservation is proposing substantive changes to the Environmental Assessment Forms (both long form and short form). The Short Form has not been updated since 1987 and the Long Form has not significantly changed since 1978...

NY Appeals Court Upholds Rezoning Pursuant to Petition Request and Further Finds Rezoning Did Not Violate Comprehensive Plan

Posted on January 22, 2011
Plainitffs brought a hybrid CPLR 78 proceeding and declaratory judgment action against the Town Board of Amherst seeking to annul a zoning decision to rezone two parcels of land. The trial court found for the Town and the appellate court affirmed. The Town Board had approved a petition to rezone the residential properties so they [...

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CA Dist. Court Concludes Town Must Pay-Up after Repudiating Development Agreement

Posted on January 21, 2011
The defendant, the Town of Mammoth Lakes, appealed the outcome of a jury trial in the Superior Court of Mono County, which ordered damages totaling over thirty two million dollars to the plaintiff, Mammoth Lakes Land Acquisition, in an anticipatory repudiation of contract action (development agreement)...

Federal Dist. Court Upholds City?s Classification of Sign as Commercial and Dismisses Claims

Posted on January 20, 2011
The City classified plaintiffs? proposed billboard as commercial, which is prohibited by a City ordinance. The ordinance requires a permit for any off-site commercial sign and plaintiffs? proposed sign would be an off-site temporary sign. Plaintiffs entered into a lease for wall space to post a sign with content related to theatrical productions, movies and [...

CT Appeals Court Upholds Cease and Desist Order to Stop Stockpiling of Woodchips

Posted on January 19, 2011
Plaintiff appealed from the lower court?s decision to uphold a cease and desist order from the town zoning officer. The cease and desist order had several point but the issue on this appeal was the order to stop stockpiling woodchips in excess of 100 cubic yards as well as to stop using the woodchips for [...

WA Appeals Court Upholds County?s Decision to Deny Conditional Use Permit On Grounds that it was Not Consistent with Comprehensive Plan Nor Character of the Area

Posted on January 18, 2011
Landowners submitted an application for a conditional use permit to excavate rock from their property and grade the excavated area for future industrial use. The County had granted a five year permit for the mineral extraction but landowners failed to complete the extraction within that timeframe...

8th Circuit Court of Appeals Says City May Not Enforce New Regulations Over Quarry Pending Legal Challenge

Posted on January 17, 2011
The petitioner, a limestone quarry operator that has boarders within a half mile of the City?s corporate limits, filed a motion for a preliminary injunction following the passage of an ordinance restricting the blasting times, hours of operation, and use of City roads with the purpose of mitigating nuisances as it pertains to their quarry...

CT Appeals Court Upholds Appeal Challenging Denial of Application for Affordable Housing since Sewer Regulation was Invalid

Posted on January 16, 2011
A local Planning and Zoning Commission denied plaintiff?s affordable housing application for a twenty-six unit residential development. The Commission stated that it was denying the application because plaintiff failed to obtain a sewer connection permit from the town water and sewer authority...

NY Appeals Court Dismisses Claim Over Revocation of Site Plan Since Petitioners Failed to Exhaust Administrative Remedies

Posted on January 15, 2011
One Niagara obtained site plan approval for a building project but the City later revoked the portion of the approval that concerned the ninth floor. One Niagara then brought an article 78 proceeding seeking a declaration that the City had previously approved the project pursuant to the approved site plans...

Utah Supreme Court Finds Property Owner Properly Filed a Challenge to Challenge Zoning Restrictions and Remands Matter

Posted on January 14, 2011
By ordinance, the County created a basin planning district pursuant to its authority under the Utah County Land Use Development and Management Act (CLUDMA). The basin district was later converted to a township pursuant to amendments made to the CLUDMA...

CA Appeals Court Finds No Nonconforming Use or Vested Right to Rock Crushing Business

Posted on January 13, 2011
Defendant down-zoned a portion of plaintiff?s property to an industrial zone, which meant plaintiff?s rock crushing and recycling business was not permitted. The City issued an order to comply and plaintiff submitted an application for a zoning variance to permit them to continue to use the property as they had done before...

MN Appeals Court Upholds Denial of Amendments to Conditional Use Permit Based on Developer?s Actions

Posted on January 12, 2011
Eagle Nests obtained a conditional use permit for a 16-unit development accompanied by nine permanent mooring sites for boats. The developer later wanted to increase the number of mooring sites to 16 and applied for a variance. The Board of Adjustment denied the variance but despite the denial, the developer constructed seven more mooring sites...

Federal District Court Agrees that City Violated Telecommunication Act Because Denial Lacked Substantial Evidence

Posted on January 11, 2011
T-Mobile alleged that the City unlawfully denied its application for special permits and variances to install a wireless communications facility on the roof of a condominium building in violation of the Telecommunications Act. T-Mobile, after conducting research, determined that there was a gap in coverage and that the condominium building would be a sufficient location [...

Third Circuit Court of Appeals Finds Junkyard Owner Failed to Make a Valid Equal Protection Class of One Claim

Posted on January 10, 2011
Defendant served plaintiffs with an enforcement notice alleging that plaintiffs? storage of junk vehicles without a permit violated a local ordinance. Shortly thereafter, defendant served another enforcement notice which ordered plaintiffs to clean up the property...

US Supreme Court Denies Cert in Colorado RLUIPA Case

Posted on January 10, 2011
Many people were waiting anxiously in the hopes that US Supreme Court might grant cert in the Rocky Mountain Christian Church case out of the Tenth Circuit. The ending is not what Boulder County, Co officials had hoped for, leaving the County to pay $1...

NY Appeals Court Holds that Open Space Preservation Law and Set Asides for Parkland Under Subdivision Law Requires Environmental Impact Statement

Posted on January 09, 2011
The Town of East Hampton adopted a new comprehensive plan that established guidelines for land use. Amendments to the Town?s Open Space Preservation Law were suggested as well as a proposal to increase the amount of real property to be set aside as a condition for approving a subdivision in three residential zones...

Ohio Supreme Court Rules that a Township is Not a Necessary Party to a Constitutional Challenge to the One-subject Rule

Posted on January 08, 2011
The Supreme Court of Ohio ruled that: 1) a challenge to a legislative enactment under the Ohio Constitution?s ?one-subject rule? is a challenge to the authority of the General Assembly to enact that bill, not a challenge to the statutory provisions of the bill itself; and 2) a township is not a necessary party to [...

NYS Sea Level Rise Task Force Issues Final Report

Posted on January 08, 2011
Created in 2007, the NYS Sea Level Rise Task Force issued its final report to the State Legislature on December 31, 2010. The report contains, among other things, the following recommendations: 1. Adopt official projections of sea level rise and ensure continued and coordinated adaptation efforts...

7th Circuit Lacks Standing to Hear Zoning Denial Where Plaintiff No Longer Owns Property and at Time of Denial, Plaintiff Had Voluntarily Dismissed Claims Earlier

Posted on January 07, 2011
Plaintiff contracted to sell property with a hotel on it so long as the buyer could obtain approval from the City to convert the hotel to a senior living center. The City denied the permit, however, because a local ordinance prohibited senior living centers...

Federal District Court finds Challenge Ordinance Regulating Sale of Alcohol Should be Brought in State Court

Posted on January 06, 2011
Plaintiff?s business serves food and alcohol in a commercial district. Plaintiff was granted a special exception to become a ?Supper Club? and was allowed to serve alcohol between the hours of 7:00 pm and 5:00 am. But the City later enacted an ordinance which required alcohol sales to end at 3:00 am...

Federal District Court Finds Town Failed to Comply with TCA by Failing to Issue Decision in Writing and Failing to Support its Decision Based on Substantial Evidence

Posted on January 05, 2011
Plaintiff?s sought permission to install three wireless telecommunications panel antennas onto an already existing tower. In a previous action, the court ordered the ZBA to grant plaintiff a special exception for the cell tower because the ZBA failed to support its denial with substantial evidence as is required by the Telecommunications Act...

Zoning for Off-Campus Fraternities and Sororities

Posted on January 04, 2011
A new article has just been published on zoning for off-campus fraternities and sororities. If your community is in college town, this article may have helpful ideas for ways to preserve the charater of residential areas while also accommodating this type of student housing...

Idaho Supreme Court Upholds Conditional Use Permit Challenge By Neighhor

Posted on January 04, 2011
Appellee was granted a conditional use permit to develop a wedding and event center. The application met all requirements in the relevant county ordinances. At the public hearings, neighbors voiced concerns about the potential increase in noise but they did not provide any evidence that there would be an actual increase in noise and traffic...

6th Circuit Court of Appeals Finds RLUIPA Challenge Not Ripe Due to Lack of Final Decision

Posted on January 03, 2011
Plaintiffs owned a house where several of the brothers and fathers of the religious order lived. They conducted private services and hosted Bible studies. Neighbors started to complain because of the number of cars parked on the grass area during Bible studies...

Iowa Appeals Court Finds Rezoning of Single Property as Historic Preservation Overlay District Did Not Constitute Spot Zoning

Posted on January 02, 2011
Between 1920 to the late 1940s, the Martins, who owned a home in the City of Ames, provided room and board to African-American students attending Iowa State University who were denied housing elsewhere. Over time, the area where the Martin home was located became a major commercial artery...

MD Court of Appeals Discusses Inherent and Non-Inherent Adverse Effects in Review of Special Exception Permit

Posted on January 01, 2011
Butler operated a landscape contracting business which is not permitted in the rural density transfer zone unless a special exception has been granted. Butler began operating her business without a special exception and later tried to rectify this mistake by filing an application with the County...

Court Upholds Denial of Area Variance Finding Among other Things, Other Means to Obtain Goal

Posted on January 01, 2011
Rossney claimed that the ZBA acted arbitrarily and capriciously in denying requested area variance and that the ZBA failed to apply the statutory balancing test required by state statute. The appeals court found that the ZBA properly balanced the benefit to the petitioner against the impact on the neighborhood, and it was well within their [...

PA Court Holds that Church Satisfies Parking Requirement Condition and Reminds About the Importance of Written Decisions and Proper Procedures

Posted on December 31, 2010
Plaintiff church entered a sales agreement for a property that did not have space for parking spaces. The property, located in an area zoned R-2, had been used as a Laundromat before an ordinance was enacted that required at least 15 off-street parking spaces...

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