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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

Eighth Circuit Finds Plaintiff in Billboard Case Not a Prevailing Party for Purposes of Qualifying for Attorney Fees

Posted on January 15, 2008
In certain types of land use disputes, the prevailing party may be entitled to statutory attorneys fees under 42 U.S.C. §1983. These fees are available when constitutional rights have been violated, and they are specifically referenced in statutes impacting land use decision making such as the Federal Fair Housing Act Amendments and the Religious Land [...

MA Supreme Court Finds Proposed Reconstruction of House on Nonconforming Lot is Substantial and Comments on ?Mansionization? and Affordable Housing

Posted on January 14, 2008
The law that has developed on the subject of nonconforming uses is state-specific and varies considerably as some states have specific enabling statutes and other states leave it to local governments to address the subject in municipal zoning regulations...

NY Appeals Court Upholds Variance Denial Where Vehicular Access to Right-of-Way Did Not Satisfy Code Provision

Posted on January 13, 2008
Petitioner purchased a substandard lot in the Village on which he intended to build a single-family residence. Although the lot fronts on a public highway, there is no vehicular access to the street due to the topography of the land, and the petitioner planned to access the proposed dwelling via a paved right-of-way that abuts [...

Utah Appeals Court Finds Historic Commission Provided Adequate Notice to Landowner

Posted on January 12, 2008
While zoning and land use decisions are challenged because a client does not like the substantive outcome of the decision, the first set of facts a land use attorneys should review is the process required to even get to that decision. Procedural requirements are contained in the applicable statute and/or local law, and attorneys should [...

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NY Appeals Court Finds ZBA Acted Arbitrarily in Denying Area Variances from Wetlands Setback Requirements

Posted on January 11, 2008
In New York, zoning boards of appeals are required to engage in a statutory five-part balancing test in determining whether to grant an area variance. This test weighs the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community...

Nevada Supreme Court Determines Equitable Considerations Justify Claim for Per Se Taking of Airspace

Posted on January 10, 2008
In a decision providing for equitable application of the law of the case doctrine, the Nevada Supreme Court has invited takings claims on regulations regarding height restrictions on development in airspace zones around the Las Vegas, Nevada airport. Landowners initially brought a challenge in 1995 to the adoption of ordinances that placed ?transition zone? height restrictions [...

6th Circuit Finds Zoning Regulations Limiting Size of Buildings Does Not Constitute a Substantial Burden on Religious Exercise under RLUIPA

Posted on January 09, 2008
Living Water, a small but growing Christian congregation, sought and initially received, a special use permit to increase its existing facilities on a six acre parcel it owns in Meridian Township, Michigan. The parcel is located in a RA zoning district, which permits single family residential, medium density uses...

NC Appeals Court Dismisses Case Due to Lack Subject Matter Jurisdiction to Grant Requested Relief

Posted on January 08, 2008
The plaintiffs requested an injunction against further approval of subdivision developments, including the proposed project, pending adoption by the County of minimum criteria and the preparation of proper environmental impact assessments (EIS). The Court said that it was without power to require the County to adopt minimum criteria as required by state statute since this [...

Idaho Supreme Court Finds No Due Process Violations in PUD Review and Approval

Posted on January 07, 2008
The requirement that municipal bodies hold hearings for the purpose of putting the public on notice of what actions are being proposed satisfies the basic constitutional due process protections. At times, although the public may receive notice of the meeting and subject matter, and members of the public are present to learn more about a [...

Indiana Court of Appeals Upholds Zoning Board?s Interpretation of ?Public Right-of-Way? as Reasonable

Posted on January 06, 2008
Neighbors challenged the decision of the Board of Zoning Appeals that upheld a building permit that was based on whether the lot in question was located on a public right-of-way. The applicable zoning ordinance provides, in part, that the ??front lot line? shall be that lot line of a lot, which is parallel to an [...

Arizona Appeals Court Invalidates Economic Incentive Agreement as Unconstitutional

Posted on November 29, 1999
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...

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

Posted on December 31, 1969
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...

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

Posted on December 31, 1969
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...

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