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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

No RLUIPA Violation Found in Zoning Board?s Denial of Variance and Special Use Permit

Posted on November 21, 2008
The Great Lakes Society, a Michigan ecclesiastical corporation and an IRS recognized religious organization, describes itself as ministering to persons having varying degrees of chemical sensitivities to common environmental pollutants. It sought to construct a two-story building on a six-acre parcel located in a low-density residential district...

Taxpayer Suit to Prevent Use of Land for Waste Management Services Was Initiated In Accordance with Statute

Posted on November 20, 2008
New York Town Law sec. 268(2) permits a town to institute appropriate actions or proceedings to restrain, correct or abate a zoning violation or to prevent illegal uses of land. The statute provides that where the town fails to institute such action for a period of ten days after a written request of a resident [...

On-Line Professional Education Training for Planners, Commissioners and Land Use Lawyers

Posted on November 20, 2008
Through the Bloustein On-Line Continuing Education Program of Rutgers University, produced by the Professional Development Institute, at the Edward J. Bloustein School of Planning and Public Policy, a menu of on-line professional development courses for land use professionals are available...

Landmark Preservation Board?s Denial of Site Review for Proposed Addition and Additional Parking Spaces Upheld

Posted on November 19, 2008
The zoning rules and regulations of the City of Syracuse explain that the purpose of project site review is to ?[p]rotect streetscapes from projects that are out of character with existing development,? and they further provide that where buildings have been designated as architecturally significant, applications relating thereto must be referred to the City?s Landmark [...

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Oregon?s Measure 37 Waivers Are Binding Constitutionally Protected Contracts

Posted on November 18, 2008
Following the passage of Oregon Ballot Measure 49 in 2007, Jackson county, OR announced that it would not honor certain waivers it granted to plaintiffs under earlier Ballot Measure 37. The waivers from certain zoning requirements were granted to the plaintiffs since the county could not pay the monetary compensation that would have been required [...

Arkansas Supreme Court Finds that Requiring Compatibility with Surrounding Land Uses is not a Vague Standard

Posted on November 17, 2008
After being denied an application for a permit to build a rock quarry, Benton County Stone, Inc. alleged that the planning ordinance should be determined void for vagueness asserting that the concept of ?land use compatibility? contained in the site development requirements section of the Code is ambiguous and confusing and therefore unconstitutionally vague...

Local Government Failed to Take a Hard Look at Local Law Regulating Industrial Wind Farms

Posted on November 16, 2008
The Town of Centerville, NY enacted Local Law No. 1 of 2006 which would have had the effect of changing the zoning for allowable uses within the Town. The State Environmental Quality Review Act (SEQRA) classifies actions for purposes of triggering various environmental review procedures into Type I, Type II and Unlisted action...

Board?s Determination that Realignment of Nonconforming Use Would Not Change Nonconforming Status Upheld

Posted on November 16, 2008
The zoning board of appeals determined that a proposed realignment of a pre-existing nonconforming dock/marina in accordance with conditions set forth in a wetlands permit issued by the legislative body does not constitute a change that would alter the nonconforming use status currently enjoyed...

New York Amish Headed to Federal Court

Posted on November 16, 2008
Over the summer, this blog reported that a local justice court in upstate New York held that the enforcement of the building code for all residents, including the Amish, does not violate the Religious Land Use and Institutionalized Persons Act. Click here for the posting...

Challenge to Building Permit and Renewals Time-Barred and Subject to Certiorari Rather Than Mandamus Action

Posted on November 15, 2008
By an action initiated in June 2007, an adjacent property owner sought to compel the Town to rescind a building permit and subsequent renewals it had issued for the construction of a residence on the adjacent parcel for alleged failure to comply with Town, County and State laws...

GA Supreme Court Finds State Agency Not Required to Regulate Placement of Utility Substations

Posted on November 14, 2008
In overturning the Court below, the Georgia Supreme Court determined that although the state Public Service Commission has authority to regulate the siting of utility substations, the law does not mandate that they exercise that authority. The Court noted that there is no requirement that every property or every complex construction project be subject to [...

2008 State Ballot Measures and Land Use

Posted on November 13, 2008
Last week, Phyllis Myers from State Resource Strategies released the following: THROUGH A PLANNER?S LENS: NOVEMBER 2008 STATE BALLOTS CHALLENGE VOTERS TO APPROVE AND FUND COMMUNITY DEVELOPMENT, TRANSPORTATION, CONSERVATION, AND RENEWABLE ENERGY PROGRAMS[1] On November 4th, voters around the country considered 153 statewide ballot measures in 36 states, including 84 measures referred by state legislatures and 59 [...

No Ethical or Due Process Violation Where County Counsel Represented County in Proceeding Before the Board and Subsequently Drafted Board?s Findings

Posted on November 12, 2008
A Kansas Appeals Court held that the mere fact that the county counsel represented the county in a quasi-judicial proceeding to determine damages as a result of the County?s vacation of two unimproved roads that provided access to a ranch, and that the counsel had a long-standing relationship as the board?s legal advisor, was alone [...

Kansas Supreme Court Says Simple Majority Vote Needed to Overturn Remand Recommendation of Planning Commission

Posted on November 11, 2008
This case arises from a request by a school district to the City for a special use permit to allow the construction of an illuminated softball complex and stadium. The area was zoned agricultural which allowed for a softball field but not a stadium with lights...

11th Circuit Finds Invocations at the Start of Planning Commission Meetings Do Not Necessarily Violate the Establishment Clause

Posted on November 10, 2008
Taxpayers challenged the practice of offering religious invocations by volunteer members of different religions on a rotating basis at the beginning sessions of the meetings of the county commission and the county planning commission. In finding that both boards were legislative in nature (the planning commission was deemed to be a creature of the county [...

Municipalities Preempted from Interfering with Airport Runway Improvement Project

Posted on November 09, 2008
In an action brought under the Supremacy Clause of the U.S. Constitution (which invalidates state laws that interfere with, or are contrary to, federal law), an airport authority sough to prevent a municipality from continuing to obstruct the construction of a federally-mandated, federally-funded, and state and federally-approved aviation safety and air navigation project, known as [...

Structure Without Water and Sanitation Facilities is Not a Residential Use

Posted on November 08, 2008
Petitioner owned property subject to the ?Bluff Head Residential Area in the Lake George Park? ordinance, which was enacted in 1971 as part of a regulatory system designed to protect the integrity of Lake George. The ordinance provides in part, that all property in the Bluff Head Residential Area ?shall be used only for single, [...

Pleadings Sufficient to Allege a Civil Rights Violation for Selective Enforcement of Zoning

Posted on November 07, 2008
In denying the Borough?s motion to dismiss a Civil Rights case where the plaintiffs alleged that the Borough, ?harassed plaintiffs? tenants regarding the storage of vehicles and auto body parts on plaintiffs? rental property, unlawfully required plaintiffs to remove commercial signs from their property, illegally charged plaintiffs for the improper installation and maintenance of a [...

Utah Supreme Court Determines that Dolan ?Rough Proportionality? Test Means ?Rough Equivalence?

Posted on November 06, 2008
B.A.M. received approval for a residential development on the initial condition that they expand the current width of the major road bordering the proposed development from seventeen feet ?half width? to 40 feet half-width. Subsequently, in accordance with changes to the County master traffic plan, B...

Florida State Agencies Sign MOU for Smart Growth, including Climate Change and Sustainability

Posted on November 05, 2008
Four Florida State agencies - the Department of Community Affairs, the Department of Environmental Protection, the Department of Health and the Department of Transportation ? have signed a Memorandum of Agreement in Support of ?Smart Growth? whereby they have agreed to assist local governments in creating healthy and sustainable communities by promoting the efficient use [...

Virginia Supreme Court Holds that Joint Comprehensive Plan Does Not Equate to Joint Zoning

Posted on November 04, 2008
The Virginia Supreme Court had to determined whether, pursuant to an annexation agreement and a joint comprehensive plan (joint growth area management plan), the County had authority to determine that the school board could construct a high school at an elementary school site without a constriction permit...

Washington Attorney General Opines that County and Town May Enter into Interlocal Agreement for University Educational Programs on Climate Change

Posted on November 03, 2008
In the State of Washington, the Attorney General opined that a county and a town have authority to enter into an interlocal agreement pursuant to RCW 39.34.080, under which the town would contract to use the services of Washington State University?s ?extension program? with the county to provide educational programs and other services concerning the [...

Money, Politics and Land Use

Posted on November 02, 2008
In an unprecedented investigation, the Chicago Tribune has analyzed a decade of zoning changes to detail how real estate interests have funneled millions of dollars to the aldermen who dictate what can be built. The series has examined how aldermen ignore city planners and frustrated residents as they frequently permit new and bigger buildings that [...

Challenge to Variance Denial Time-Barred for Failure to File Within Required 30 Days

Posted on November 02, 2008
Following a denial of an area variance to permit the construction of a second-story deck, the trial court granted the petition and remitted the matter back to the zoning board of appeals. The Appellate Court, however, reversed the trial court because the petitioner failed to timely commence the proceeding within 30 days after the zoning [...

New York Court of Appeals Holds That Tools Are Not Fixtures for Purposes of Condemnation Valuation

Posted on November 01, 2008
The New York Court of Appeals unanimously overturned the courts below in a case where a claimant, whose property had been taken by eminent domain, sought to be paid by the City for all the standard industrial tools that he used in the woodworking shop that he operated on the premises...

NY Attorney General Establishes Code of Conduct for Wind Energy Companies

Posted on October 31, 2008
The NY Attorney General has announced a new code of ethics for the wind industry along with the establishment of an oversight task force. Although the Code does not appear to be available on-line yet, according to the Attorney General?s press release the Wind Industry Ethics Code prohibits conflicts of interest between municipal officials and [...

Eternal Moratorium Can Be a Taking Says California Appellate Court

Posted on October 30, 2008
Monks v. City of Rancho Palos Verdes, involves a 1978 moratorium on construction of new homes in an area in which landslides had occurred. Plaintiffs? property consisted of a number of lots which were vacant and zoned for single family use. Plaintiffs sought approval to build a house in 2002, but the defendant took the [...

Utah Supreme Court Holds Zoning Ordinance May Be Modified by Initiative Process

Posted on October 29, 2008
Relying on the State Constitution, the Utah Supreme Court found unconstitutional the state statute prohibiting voters from petitioning for an initiative about a land use ordinance or a change in a land use ordinance. (Election Code 20A-7-401). The Court reviewed the history of Articles I and VI of the State Constitutional, finding that ?the right [...

NY District Court Finds Takings Claim Not Ripe Where Developer Did Not Seek Variance and Did Not Pursue Action in State Court for Compensation

Posted on October 28, 2008
In an ongoing effort to develop a parcel of property for multi-family housing in the Town of Greenburgh (NY), the developer was told prior to purchasing the land that it was located in a CA (Central Avenue Mixed Use Impact District) which would allow for the development of a multi-family complex containing at least 82 [...

Planning, Zoning and Property Rights Conference - December 2008

Posted on October 28, 2008
Everyone in these economically challenging times is looking for value. Check out a forthcoming two and a half day program offered by the Center for American and International Law (December 10-12 in Plano, Texas). I usually don?t post conference information in this format, but this program is one not to be missed...

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