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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

District Court in New Mexico Halts Implementation of City Green Code

Posted on January 12, 2009
In October 2008, a federal district court judge issued a preliminary injunction barring enforcement of the City of Albuquerque?s green building code enacted in 2007 [the Albuquerque Energy Conservation Code and High Performance Building Ordinance] pending the outcome of a lawsuit brought by HVAC and water heating equipment trade organizations, contractors and distributors on the [...

Federal Lawsuit Filed by Amish Alleges Enforcement of Building Codes Violates RLUIPA

Posted on January 12, 2009
Last week, the Becket Fund for Religious Liberty filed a federal lawsuit with a 17-count complaint which charges that since 2006, Morristown officials have singled out the Amish, who belong to the Old Order Swartzentruber Amish, for prosecution under local building codes, bringing more than ten separate prosecutions for building or moving homes without permits [...

Zoning Board Improperly Denied Requested Area Variance From Road Frontage Requirement

Posted on January 11, 2009
The petitioner, owner of a 9,200 square-foot parcel in the Town?s Residence ?B? District, desired to construct a one-family dwelling on the lot. The zoning ordinance requires a minimum street frontage of 55 feet, and since petitioner only had 45.23 feet of frontage, it applied for an area variance, and in the alternative, a determination [...

Court Upholds Town Board?s Denial of Request to Close Road

Posted on January 11, 2009
An appellate court upheld a determination of the Town Board denying the developer?s application to close a road in the Town in connection with a residential development. Although the developer argued that the road was ?useless? which would allow the Town to close the road pursuant to State Highway Law section 171, the Court found [...

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Arizona Appeals Court Invalidates Economic Incentive Agreement as Unconstitutional

Posted on January 10, 2009
On December 23, 2008, the Arizona Court of Appeals, Division I, largely invalidated a March 2007 economic incentive agreement between the City of Phoenix and NPP CityNorth, L.L.C. that authorized the sharing of 50% of the sales tax proceeds generated by the CityNorth development...

MA Land Court Finds Lowe?s Principal Use is Retail Store and Sales and Not Lumber Yard and That the Planning Board Lacks Authority to Unconditionally Deny Site Plan Application

Posted on January 09, 2009
Lowe?s submitted three site plan applications to the planning board for purposes of building a retail establishment consisting of a 168,554 square foot structure (a 136,358 square foot building and a 32,196 square foot attached garden center). The three parcels involved in the proposed development are located in a Highway Business District where retail stores [...

New York Court of Appeals Set to Hear Oral Arguments in Farmland Condemnation Case

Posted on January 09, 2009
The following case summary is provided by the New York Court of Appeals for oral arguments set for Wednesday, January 14, 2009: Aspen Creek Estates is challenging the Town of Brookhaven’s proposed condemnation of 39 acres of farmland that Aspen Creek had purchased for residential development...

Property Owners Alleged Sufficient Special Damages for Standing to Challenge Special Use Permit for Adult Business Use

Posted on January 08, 2009
The North Carolina Supreme Court held that owners of adjacent and nearby properties sufficiently alleged special damage for purpose of standing to challenge the granting of a special use permit for an adult establishment. Specifically, two of the petitioners owned land adjacent to the subject property, and one petitioner owned a prominent restaurant that was [...

Distinguishing Between Use and Area Variances, NH Supreme Court Finds ZBA Improperly Granted Equitable Waiver

Posted on January 07, 2009
Property owners sought an equitable waiver from the zoning board of appeals when after they had begun construction pursuant to a building permit to construct a detached garage a stop work order was issued but then lifted when they made adjustments to the proposed garage and then abutters subsequently convinced the zoning board that the [...

Mining of Sand and Gravel Not a Nonconforming Use as Activities Were Merely in Contemplation of Mining and No Vested Rights Accrued as No Substantial Expenditures Made in Reliance on Permit

Posted on January 06, 2009
Plaintiff, owner of approximately 216 acres of land in the Town, commenced a proceeding seeking a declaration that its mining of sand and gravel aggregate on the property was a lawful nonconforming use and that it had therefore acquired a vested right to mine the property...

New Connecticut Environmental Justice Law Includes Definition of Community Environmental Benefit Agreement

Posted on January 05, 2009
In May 2008, Connecticut Legislature passed, and the Governor signed, the State?s first environmental justice law. The law took effect January 1, 2009. Definitions are provided for ?environmental justice community,? ?affecting facility,? ?meaningful public participation,? and ?community environmental benefit agreement...

Environmental Review, Endangered Species and Timing of Preliminary Plat Review Addressed by New York Appellate Court

Posted on January 04, 2009
A December 31, 2008 decision from the New York Appellate Division, Third Department will affect how planning boards discharge their State Environmental Quality Review (SEQR) obligation to “take a hard look” at potential impacts on endangered species...

NYS DEC Invites Informal Comments on Proposed SEQR Changes Including A Proposed Revised EAF and Guidance Document on Incorporating Climate Change in the EIS

Posted on January 04, 2009
The New York State Department of Environmental Conservation (DEC) is seeking input on two preliminary proposals regarding the conduct of environmental reviews under the New York State (NYS) Environmental Quality Review Act (SEQR). The proposals have been circulating to a range of potentially interested organizations and individuals for early, informal review and comment before DEC [...

New Year?s Resolution: Read Agenda for a Sustainable America

Posted on January 03, 2009
Widener Law School Professor John Dernbach has pulled together what may be the most important book of 2009 for lawyers, planners, officials at all levels of government and the general public ? Agenda for a Sustainable America. With thoughtful contributions from 41 leading scholars, scientists and lawyers, a compelling case is made that we are [...

Law Firm Not Disqualified Where They Previously Represented Subsidiary Company on a Land Use Matter

Posted on January 02, 2009
Skycasters sued Didado Electric for breach of contract in a dispute over electrical work on its satellite dish. Prior to trial, Skycasters moved to disqualify Didado?s attorneys because they had helped an agent for Skycasters obtain a zoning variance to allow it to install the satellite dish...

Zoning Amendment Amounting to Detailed Reuse Plan for Closed Army Facility Voided as Ultra Vires

Posted on January 01, 2009
In 1996 the United States closed an Army Reserve facility on a 17-acre parcel of land in the Town of Hempstead. The parcel was located in an area zoned as ?B Residence? permitting single-family detached homes on 6,000 square foot lots with minimum frontage of 55 feet...

NYC Violated Equal Terms Provision of RLUIPA By Revoking Pre-Consideration Allowing Church to Lease Space to Third Party for Catered Social Events

Posted on December 31, 2008
Facing serious financial hardship and difficulty in maintaining their exisiting building due to significant declines in membership, the Third Church of Christ entered into a twenty-year lease agreement with a private venture, the Rose Group, allowing the group to hold catered social events in the Church...

Trial Court Has No Authority to Issue Injunction or Declaratory Judgment to Halt Criminal Proceeding

Posted on December 30, 2008
During the pendency of a criminal enforcement action, the petitioners sought a stay of the criminal proceedings as well as declarations regarding the conforming nature of certain alterations and improvements made to a residence an accessory building on the petitioner?s lot...

No Standing to Challenge Variance for Accessory Apartment Where Alleged Harms Are Not Different From Those Suffered By Public At Large

Posted on December 29, 2008
In an effort to challenge the granting of a variance for an accessory apartment, the petitioners, three individuals and an association of homeowners, were found to lack standing to commence the action since they failed to establish that any of the named parties would suffer an environmental ?injury that is in some way different from [...

Failure to Properly Exhaust Administrative Remedies Results in Termination of Nonconforming Animal Clinic

Posted on December 28, 2008
A veterinary clinic operating pursuant to a nonconforming use variance was shut down on September 1, 2006 by the City after 278 cats were discovered on the premises, many of whom were dead, injured and malnourished. In May 2007, the petitioner was found guilty of 28 violations of the State Agriculture and Markets Law...

Adjacent Property Owners Are ?Persons Aggrieved? for Purposes of Zoning and Appeals Court Finds that Two Lots in Single Ownership Merged for Purposes of Zoning

Posted on December 27, 2008
Gallo owns two adjacent lots which have been held in common ownership since at least 1945. One lot contains a residence (and is approximately 13,418 square feet) and the second lot has never been developed (and is approximately 12,918 square feet). Since 1956 the zoning regulations require 20,000 square feet and 125 feet of frontage [...

Denial of Special Use Permit for Charter School Upheld as Inconsistent with Comprehensive Plan

Posted on December 26, 2008
A charter school for high school students applied to the city for a special use permit to build a new school facility on an undeveloped 4.1 acre parcel. The proposed site is zoned for ?office commercial? use, not for residential, and schools are permitted only subject to special use permit...

Missouri Supreme Court Enforces Heritage Value as Part of Just Compensation in Eminent Domain Matters

Posted on December 25, 2008
After the City sought condemnation of 15 acres out of 45 acres owned by the Relators, the Relators claimed that the property had been in the family for over 50 years and that they were therefore entitled to heritage value as part of the just compensation determination...

Ohio Power Siting Board Adopts Rules for Siting of Wind Farms

Posted on December 24, 2008
The subject of local control of the siting of wind turbines through zoning, as opposed to state preemption through statewide power siting boards remains controversial in many jurisdictions. A recent case reported on this blog from the State of Washington indicated that Washington State Supreme Court determined that localities were impliedly preempted from regulating wind...

Residency Restrictions for Convicted Sex Offenders Continuing Subject of Attention in New York

Posted on December 23, 2008
The subject of residency restrictions for convicted sex offenders continues to be debated in municipal forums across the country. A 2007 report from Connecticut Legislative Research Service indicated that at the time, at least 21 states and 400 local governments had adopted laws dealing with residency restrictions...

Variance Annulled Since Zoning Board Failed to Follow Its Own Precedent

Posted on December 23, 2008
Following the purchase of property located in a residential zone that included a single-family residence, Benmar applied for a building permit and subdivision of the property to build a second single-family home. The Building Inspector denied application because the proposed second lot did not comply with the lot-depth requirements of the zoning ordinance...

Parking Variance Denial Upheld as Traffic and Parking are Legitimate Considerations

Posted on December 22, 2008
The petitioner sought an area variance from the requirement that eight parking spaces were needed for a proposed retail project. The petitioner proposed no parking with the project. The Court upheld the zoning board?s denial of the area variance, noting that the need to alleviate traffic congestion by requiring adequate parking facilities is a legitimate [...

Zoning Board Area Variance Denials Overturned as Arbitrary and Lacking a Rational Basis

Posted on December 21, 2008
A property owner sought area variances to enable him to subdivide a lot with an area of 10,500 square feet that was improved with a single family home, into two lots ? one that would be 6,000 square feet and one that would be 4,500 square feet ? for purposes of constructing a single family [...

NH Supreme Court Finds Zoning Ordinance Imposing Restrictions on Private Dock Preempted by State Law

Posted on December 20, 2008
In 1991, the Town of New London enacted a zoning ordinance that designated the property owner?s (Lakeside) lot within a ?shore land overlay district? and prohibited the use of waterfront common areas for lake access except in compliance with the provisions of the ordinance and with planning board approval...

Washington Supreme Court Upholds Redesignation of Agricultural Lands to Commercial Overturning Growth Management Board

Posted on December 19, 2008
The Washington Supreme Court ruled there was evidence to support a county?s redesignation of land zoned agricultural to urban commercial, and the regional growth management hearing board committed error in not considering the evidence. The current case is the latest chapter in a years-long struggle over the status of a 110-acre parcel of land located [...

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