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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

Fear of Increased Business Competition is Not Sufficient Grounds for Standing

Posted on December 18, 2008
In overturning a decision of the trial court, a New York appellate court ruled that where the petitioner challenged the granting of a variance to use combustible solvents in a laundry business, the petition failed to allege any clear noneconomic concerns relating to the permit approval...

8th Circuit Court of Appeals Upholds District Court?s Finding that Denial of CUP was Neither a Taking Nor a Due Process Violation

Posted on December 17, 2008
In February, the District Court of Minnesota determined that the City Council?s denial of a conditional use permit did not constitute a taking and did not violate due process. The facts are as follows: In 2005, while her late father was ill with cancer, the Plaintiff purchased the property on which he had operated an auto [...

Using Land Use Law to Meet the Affordable Housing Needs of Low-Income Seniors

Posted on December 17, 2008
Below is an excerpt from the introduction of new article on affordable housing for low income seniors. With the rapid increase in the senior population due to the aging of the baby boomers, communities can no longer rely on federal and state government programs to deliver the necessary affordable housing stock to meet demands...

Oregon Supreme Court Accepts Certified Questions from United States Court of Appeals for the Ninth Circuit

Posted on December 16, 2008
In July 2008, the Ninth Circuit Court of Appeals certified three takings questions to the Oregon Supreme Court in West Linn Corporate Park, LLC v. City of West Linn. This week, the Supreme Court accepted the questions for review. The following excerpt appears in the Court?s December 10, 2008 Media Release: Plaintiff West Linn Corporate Park, [...

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7th Circuit Court of Appeals Finds Equal Protection Claim Survives Williamson County Ripeness Rule but Dismisses for Failure to State a Claim

Posted on December 15, 2008
Flying J purchased 53.3 acres, zoned C-1(P) General Commercial Planned District, intending to construct a ?travel plaza? (a facility offering food, fuel, grocery, and other services to truck drivers and other travelers), a hotel, and other developments on the site...

Zoning Board?s Interpretation of Code Provision Requiring Substantial Commencement of Project Within One Year Upheld As Reasonable and Rational

Posted on December 14, 2008
In November 2004 Peppard obtained an area variance from the zoning board of appeals for the construction of a single family residence. The zoning board directed Peppard to comply with a section of the zoning code that requires the ?improvement, construction or alteration? that was the subject of the variance to be ?substantially commenced? within [...

Zoning Board?s Denial of Nonconforming Use Status Vacated As Arbitrary and Capricious

Posted on December 13, 2008
An appellate court held that the court below properly annulled the determination of the zoning board of appeals which found that the petitioners had failed to establish that nonconforming use status as a residential dwelling for a cottage in the rear of their property that began prior to the enactment of the relevant zoning code...

Ordinance Provision Prohibiting Storage of Boat and Trailer Unconstitutionally Vague

Posted on December 12, 2008
Following complaints from neighbors, the defendant was charged with violating the Code of the Town of Webster, NY for parking his boat and trailer in his front yard on his driveway. The Ordinance provides, in part, ?No boat, house trailer, camp trailer or mobile home of any kind shall be stored in any front yard [...

ELI Seeking Input on Improving the Connections Between Planning and Wildlife Conservation

Posted on December 12, 2008
The Environmental Law Institute (ELI), an independent research and education organization, working in partnership with a team of academics, conservation and planning interests, including the American Planning Association and National Association of County Planners, has put together a survey on the relationship between wildlife conservation and planning...

Hawai?i Court of Appeals Rules Private Citizens Cannot Enforce State Land-Use Statute

Posted on December 11, 2008
In 1995, Molokai Ranch (MR) proposed developing 15 commercial overnight campgrounds along the ?Great Molokai Ranch Trail? on the west end of the island of Molokai. In response to MR?s inquiry whether its project could be developed on non-prime agricultural land, the director of the Maui County Department of Public Works (DPW), the person charged [...

State Mining Law Does Not Preempt Local Setback Requirements

Posted on December 09, 2008
Following a variance denial from a required 1,000-foot setback from residential structures for surface coal mining, the mining company filed a lawsuit claiming that the state?s Surface Mining Conservation Reclamation Act (SMCRA), which only required a 300-foot setback from residences preempted the local ordinance...

Competitor Lacks Standing to Challenge Rezoning for Cellular Tower One Mile Away

Posted on December 08, 2008
The South Carolina Supreme Court determined that a nonadjoining property owner, whose property was about one mile away from the property in question, lacked standing to challenge the rezoning of land leased to a competitor for the purposes of constructing a cellular telephone tower...

Sixth Circuit Court of Appeals Holds City Violated Due Process in Effort to Eliminate Nonconforming Uses

Posted on December 08, 2008
A revised zoning ordinance enacted by the City in 1983 rendered many properties noncompliant. The ordinance grandfathered these nonconforming uses calling them viable-nonconforming-use, and provided that the status would be lost if the property owner discontinued the use for six consecutive months...

Respondents Lacked Standing to Challenge Determination of Zoning Officer, and Zoning Board of Appeals Lacked Authority to Review Determination

Posted on December 07, 2008
Petitioners RSM proposed to build a residential community on two adjacent parcels, one of which borders Canandaigua Lake. They proposed to build a clubhouse on the parcel bordering the Lake to include a sundeck, docks with boat slips, a pump house and gas pumps...

Rezoning Did Not Constitute Illegal Spot Zoning

Posted on December 06, 2008
Following Respondent?s application for a zoning change from a commercial office district designation to a highway commercial district, the City identified the proposed rezoning as an unlisted action for purposes of the State Environmental Quality Review Act (SEQRA), subsequently issued a negative declaration under the Act and rezoned the property as requested...

Acting Chair Need Not Recuse Herself Where Her Father Was Of Counsel to Law Firm That Represented Application on Different Matter Two Years Prior

Posted on December 05, 2008
The New Jersey Appeals Court recently revisited their decision in Haggerty v. Red Bank Borough Zoning Bd. of Adjust., 385 N.J. Super. 501 (App. Div. 2006), to determine whether Lauren Nicosia, a member of the Red Bank Zoning Board of Adjustment should have recused herself from participating in the variance application of defendant, MW Red [...

Court Upholds Jury Award of Over $3M in Maryland RLUIPA Suit Finding Substantial Burden on Religious Exercise and No Compelling Interest

Posted on December 04, 2008
The Northern District of Maryland found sufficient evidence supported the jury?s finding that the county?s actions were motivated, at least in part, on the basis of religious discrimination in violation of the Equal Protection Clause, and the jury?s finding that the county?s actions imposed a substantial burden on religious exercise in violation of the Religious [...

Colorado Appeals Court Finds Regulatory Impairment of Property Rights Act Does Not Apply to Drainage Basin Fees

Posted on December 03, 2008
Wolf Ranch, LLC owns approximately 1,900 acres of land in Colorado Springs. Colorado Springs has promulgated ordinances since the 1960s regulating drainage and control of flood and surface waters. The ordinances apportion drainage infrastructure costs among all developers within a basin, and the City Council sets a per-acre drainage fee by resolution...

DOJ Suit Alleging Village?s Discrimination Against Jewish Boarding Schools May Move Forward, Court Rules

Posted on December 02, 2008
On November 12, a federal court in New York held that a lawsuit against the Village of Airmont alleging discrimination against Jewish boarding schools was allowed to move forward. The United States District Court for the Southern District of New York rejected a motion by the Village that the suit, brought under the Religious Land [...

State Energy Siting Law Applies to Wind Turbines and Preempts Local Zoning in Washington State

Posted on December 01, 2008
The Washington State Energy Facilities Site Locations Act governs the relocation, construction, and operating conditions of energy facilities in Washington. The law creates a process for determining energy facility locations across the state and requires site certification, a binding agreement between the applicant and the State, and conditions of approval that will assure the applicant?s [...

Court Dismisses Claim Since Petitioner Failed to Raise Issue Before Zoning Board of Appeals

Posted on November 30, 2008
Since in an earlier 1991 proceeding, the appellate court concluded that the petitioner?s subdivision of two lots did not qualify as ?[e]xisting lots of record? under the applicable Town Ordinance which would have exempted the lots from the minimum one-acre requirement imposed by the zoning ordinance, the zoning enforcement officer informed the petitioner in 2007 [...

Variance Denial Arbitrary Where Board Fails to Adhere to Its Own Prior Precedent

Posted on November 29, 2008
Although local zoning boards of appeal have broad discretion when considering applications for area variances, where the board fails to adhere to its own prior precedent and fails to indicate its reason for reaching a different result on essentially the same facts, the decision will not be upheld as it is considered arbitrary and capricious...

Local Legislator Cannot Be Removed For Voting On Wind Project

Posted on November 28, 2008
An appellate court dismissed a petition calling for removal of a town legislator that alleged that the legislator concealed a conflict of interest when he voted to approve a wind energy facility because the project would include a turbine on his property...

Early Black Friday Shopping for Land Use Lawyers, Planners and Planning Commissioners

Posted on November 27, 2008
Last year for Thanksgiving the posting featured ?leftover? miscellaneous topics of interest to readers. This year, in the spirit of preparing the holiday shopping lists and reviewing the bargains on Black Friday, Law of the Land finally responds to a number of reader inquiries about recommended books and resources for land use lawyers, planners and [...

Sale of Wine and Beer Permitted, But No Church Services Under RLUIPA Claim Due to Ripeness

Posted on November 26, 2008
Since 1986, the Guatay Christian Fellowship has been holding services in the recreation center of the Pine Valley Trailer Park on land zoned rural residential. Non residential and non agricultural uses require a Master Use Permit (MUP). The County sent a notice to the Park in 2008, indicating that the existing MUP for the recreation [...

Lot Not Entitled to Nonconforming Status As Buildable Where it Complied with Zoning But Not With Subdivision Regulations

Posted on November 25, 2008
The Rhode Island Supreme Court upheld the lower court?s finding that the lot in question was not entitled to legal nonconforming use status as a buildable lot, because although when it was created it consisted of more than the 80,000 square feet required for buildable lots under the zoning ordinance, the more restrictive subdivision regulations [...

Special Use Permit Denial Not Based on Substantial Evidence in Violation of the Telecommunications Act

Posted on November 24, 2008
T-Mobile filed an application for a special use permit to construct a 120-foot tall telecommunications tower to provide residential and vehicular cell phone coverage in the vicinity of the proposed site. The application discussed alternative sites, ruling them out for various reasons...

State Court Claim for Compensation Not Barred By Prior Federal Court Claim

Posted on November 23, 2008
Following a federal court dismissal on the grounds of ripeness in Plaintiff?s identical claims pursuant to 42 U.S.C. sec. 1983 for violations of equal protection, due process and just compensation for an alleged taking of property, the Plaintiffs initiated an action in state court...

Legislative Body Not Required to Consider and Vote on Every Application for Zoning Change

Posted on November 23, 2008
A Town Board is not required to consider and vote on every application for a zoning change. Since the Board?s decision not to consider the application is a legislative function (adoption of zoning and amendments thereto are legislative actions), the decision is not subject to an Article 78 review under the New York Civil Procedure [...

Curious Jury Verdict in Colorado ?Big Box? RLUIPA Case

Posted on November 22, 2008
On one hand, the jury found that the Boulder County, Co. officials did not act in a discriminatory manner in violation of the constitution when they denied the request of the Rocky Mountain Christian Church to expand by almost doubling their size. On the other hand, the jury found that the County denial violated the [...

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