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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

Wyoming Supreme Court Upholds Variance Denial Finding a Complete Record and Determining the Board Did Not Act in Arbitrary and Capricious Manner

Posted on June 18, 2010
In September of 2000 the Board of County Commissioners of Park County put a new comprehensive zoning system into effect which was meant to override any pre-existing zoning designations that were not actively being used for the allowable purpose. Owners of land with zoning designations set to expire could appeal the designation of their land [...

Idaho Supreme Court Finds Board Erroneously Issued Special Use Permit for Gravel Pit in a Commercial Business District

Posted on June 17, 2010
The Supreme Court of Idaho found that the special use permit was not lawfully issued since the zoning ordinance provides that a special use in the district is a ?Commercial Business supplying products and services for agriculture and forestry activities...

City of San Diego Satisfied Proper Notice Requirements for Actions Related to Expansion of Shopping Center

Posted on June 16, 2010
The plaintiff, Citizens for Responsible Equitable Environmental Development (?CREED?), sought injunctive and declaratory relief against the defendant, the City of San Diego (?the City?), for failing to provide proper notice of a public hearing regarding approved City resolutions for the expansion of a shopping center...

N.H. Statute of Limitations Prevents Vested Rights Argument for Planned Subdivision

Posted on June 15, 2010
Collden Corporation, the petitioner, appeals the decision of the superior court dismissing Collden?s declaratory judgment claims following the decision of the Town of Wolfeboro Planning Board (?Town?). Collden sought a declaration that it had a vested right to build their planned subdivision, or, in the alternation, that the Town?s determination that the approval for the [...

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CT Supreme Court Finds ZBA Has Authority to Determine Whether Plans Are in Accordance With Stipulation of Settlement

Posted on June 14, 2010
After the zoning enforcement officer denied the necessary certificate of zoning compliance to Hasychak who wanted to make substantial renovations to his seasonal cottage, which was a legal, nonconforming structure on a legal, nonconforming lot, he applied to the zoning board of appeals for variances which were denied...

Condition Annulled for Failure to Relate to Application

Posted on June 13, 2010
The planning board granted the petitioner?s application for certain area variances, site plan approval and a special permit to enable it to construct more tenant space and a drive-through facility at a corner of an existing shopping center, subject to seven conditions, including that the petitioner ?provide a perpetual offer of cross-access and cross-parking with [...

Court Dismisses Challenge to City?s Denial of Special Use Permit for Summer Rental as Moot Despite City?s Failure to State Reasons for Denial

Posted on June 12, 2010
Following a denial a special use permit by the City Council to allow the petitioners, resident owners of a single-family Victorian-era home which had been renovated and restored from a former three-unit rental building, to rent their home to tenants in 2009 under the City?s summer transient occupancy ordinance, the petitioners appealed...

CT Supreme Court Holds that Zoning Boards Have Authority to Hear Appeals Regarding Compliance with Stipulation Judgments

Posted on June 11, 2010
The plaintiff owned a seasonal cottage which was constructed prior to Old Saybrook?s creation of the present zoning regulations, and the plaintiff?s house had many non-conformities. When the Plaintiff sought and was denied variances to make renovations to his cottage...

Third Circuit Court of Appeals Finds Grounds for Possible Civil Rights Violations by Township Attorney over Proposed Nightclub Development

Posted on June 10, 2010
The plaintiff was granted various variances by the Township of West Orange New Jersey (?the Township?) to facilitate the construction of a $4 million restaurant and night club. When the construction was 90% complete, the Township noticed that the construction did not comply with the variances in the approved plan and issued Stop Work Orders...

Group Home Regulations Addressing Desirability of Homes in Area, Presence of Certified Site Manager, Limitations on Individuals Receiving Treatment in the Home and Licensing Violates Federal Fair Housing Act

Posted on June 09, 2010
Two sets of plaintiffs brought facial challenges to a Suffolk County (NY) regulation dealing with substance abuse recovery housing in the County. Plaintiffs alleged violations of the federal and state constitutions, the Fair Housing Act (FHA), the Americas with Disabilities Act, and numerous provisions of state law...

Removal of Fill from Environmentally Sensitive Zone was Incidental to Lawful Construction Under the Zoning Ordinance

Posted on June 08, 2010
Neighbors appealed a decision of the zoning board and planning board approving a site plan for the construction of a Lowe?s. �Following a decision of the superior court which upheld the boards? determinations, the New Hampshire Supreme Court affirmed...

8th Circuit Court of Appeals Finds Inspector Did Not Need a Search Warrant Before Looking in Window to Confirm or Refute Alleged Violation

Posted on June 07, 2010
A property owner sued the City of Omaha under sec. 1983 asserting a number of claims after the city cited him for violations of the City?s littering code resulting from a thirty-foot-high mound of construction debris.� The Court found that the City had properly exercised its statutory nuisance jurisdiction, and that the constitutional vagueness, delegation, [...

New ELR Article on Cooperative Federalism and Climate Change

Posted on June 07, 2010
In February 2010, the Environmental Law Institute along with Columbia University School of Law, University of Virginia School of Law and Vanderbilt Law School, sponsored a two-day conference on climate change. A number of the papers from the program are published in the June Environmental Law Reporter...

Federal District Court Dismisses Challenge to Upzoning

Posted on June 06, 2010
Plaintiffs, owners of a 15 acre parcel, commenced an action in federal court against the Town and the Town board in connection with the Town?s enactment of a local law which upzoned their property from a minimum two-acre lot size to a five-acre lot size, alleging that doing so violated their equal protection rights...

Town?s Challenge to Central Pine Barrens Joint Planning and Policy Commission Resolution Dismissed on Ripeness Grounds

Posted on June 05, 2010
The Town of Riverhead and the Town of Riverhead Community Development Agency (CDA) commenced a joint Article 78 proceeding and declaratory judgment action challenging the assertion of jurisdiction by the Central Pine Barrens Joint Planning and Policy Commission over properties located within Enterprise Park at Calverton, which is owned by the CDA, and a related [...

Owner Continued Use of Nonconforming Asphalt Plant Even Though No Asphalt Was Produced During Relevant Time Period

Posted on June 04, 2010
Appellants, Woodward and other abutting property owners of the respondent, Pike Industries, Inc., (Pike) operators of an asphalt plant, appeal from a decision of the Superior Court that reversed a decision of the zoning board which held that Pike discontinued its nonconforming use of the asphalt plant and thus could not re-establish such use...

No Vested Rights in Electronic Sign Where Prior Stipulation and Judgment Prohibited Such a Sign

Posted on June 03, 2010
Following a ruling by the appeals court that Halla?s illuminated sign did not comply with a 1997 stipulation and judgment and that Halla did not have a vested right to use the sign, the Minnesota Supreme Court affirmed. � The building at issue was constructed in 1994 without a building permit...

Court Upholds Denial of Preliminary Subdivision Plat Approval as Applicant Failed to Offer Mitigation for Road, Health and Safety, and School Impacts

Posted on June 02, 2010
In Montana, a preliminary plat approval is reviewed by the governing body (the Commission) to determine the impacts on the public health, safety, and welfare of the community, and to determine whether the plat is in line with the master growth plan of the area...

Federal District Court Declines to Dismiss RLUIPA Claims Against Members of Historic Commission

Posted on June 01, 2010
Following a denial of a Certificate of Appropriateness for plaintiff Chabad Lubavitch of Litchfield County to renovate a Victorian house in an Historic District into a Temple for purposes of providing sufficient space for it to ?meet the spiritual and physical needs? of its members, the religious group filed suit alleging, among other things, a [...

Section 1983 Action Against Village and ZBA Resulting from Granting of Conditional Height Variance Dismissed

Posted on May 31, 2010
Cunney applied for permits to construct a home on his property.� The applicable code provisions required that buildings in the zoning district, which were in a downward-sloped area, be no higher than four and one-half feet above the easterly side of an adjacent road...

Without a Quorum Present, Planning Board Members May Meet with Staff Without Violating the Open Meetings Law

Posted on May 30, 2010
The NYS Committee on Open Government has opined that the Open Meetings Law is not triggered unless a quorum, a majority of the total membership of a public body, convenes to conduct public business collectively, as a body.� So, where the planning board consists of seven members, a quorum would be four or more members...

Board?s Denial of Special Use Permit was Arbitrary and Capricious as it Failed to Follow Prior Precedent

Posted on May 29, 2010
Following the denial of a special use permit by the Board of Standards and Appeals to allow the petitioner to enlarge a single-family residence in Brooklyn, petitioner appealed.� When petitioner?s contractor inspected the premises prior to an application, it was discovered that the house had extensive wood damage due to termites and age, and therefore [...

Town Board Member Lacks Standing to Challenge Proposed Development of Vacant Property

Posted on May 29, 2010
A New York appellate court explained that a town board member lacked standing to challenge both the town and the developer in either his individual and official capacities with respect to the development of vacant property. With respect to standing in his individual capacity as a resident of the Town, the Court said that the [...

Denial of Area Variance Upheld As Board Weighed Statutory Factors

Posted on May 28, 2010
Where the record revealed that the zoning board properly weighed the statutory factors and determined that the requested variance would create a detriment to the nearby properties, that the benefit sought be the petitioner could be achieved by some other method feasible to pursue other than an area variance, that the requested variance was substantial [...

Property Owner Failed to Properly Challenge Stop Work Order and Possible Open Meetings Law Violation Did Not Warrant Annulment of Variance Denial

Posted on May 28, 2010
Following a determination by the director of code enforcement that a building permit for a one-story house was mistakenly issued in violation of the local zoning ordinance (the zoning ordinance required a 100-foot setback from the edge of the bluff and the current set-back was only 42 feet), the code enforcement officer issued a stop [...

NY Appellate Court Finds Board?s Denial of Special Exception Permit for Church Was Arbitrary and Capricious

Posted on May 27, 2010
The Walk in Love for Jesus Christ Church operated as of right in a residential district prior to a change in the zoning ordinance that now requires a special exception permit for religious uses. �The ordinance directs the Town to grant a permit where the proposed use will not cause significant negative impacts on the [...

Wal-Mart Project Permitted to Continue Despite Finding of Human Skeletal Remains in Hawaii

Posted on May 26, 2010
The following abstract is excerpted from the Hawaii Land Use Law and Policy Blog: The Plaintiffs brought action against the Department of Planning and Permitting (“DPP”) of the City and County of Honolulu alleging DPP failed to comply with HRS � 6E-42...

Uniformity Requirement for Height Restrictions Not Violated Where Ordinance Contains Differing Height Limits for Standard and Substandard (Pre-existing) Buildings

Posted on May 25, 2010
In a declaratory judgment action by a landowner against a city challenging a zoning ordinance that sets different building height limits for standard and substandard lots (lots that were lawfully in existence at the time of the adoption of new provisions in the zoning code) as an alleged violation of the uniformity requirement of Code [...

10th Circuit Court of Appeals Upholds RLUIPA Jury Verdict in Mega Church Case

Posted on May 24, 2010
In continued protracted litigation between the Rocky Mountain Christian Church and Boulder, CO, (see earlier posting here) the 10th Circuit Court of Appeals upheld a jury verdict, finding that sufficient evidence was presented at trial to justify the jury’s determination that the denial of the Church?s special use application violated the equal terms provision of [...

Zoning Board?s Interpretation of Code Provision With Respect to Home Occupation Upheld

Posted on May 23, 2010
The zoning board determined that the petitioner?s proposed use of her residence for professional hairdressing did not qualify as a home occupation under the Village zoning code. The applicable code provision expressly enumerates barbershops and beauty parlors as types of permissible ?personal service stores? in the district in question...

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