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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

Variances Upheld as Board Applied Statutory Balancing Test

Posted on July 28, 2009
On appeal challenging the granting of area variances, the appellate court reminded that local zoning boards have a wide discretion in considering applications for area variances, and that judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion...

Municipal Policy Favoring Siting of Wireless Facilities on Government Property Does Not Necessarily Violate the Telecommunications Act

Posted on July 27, 2009
Seeking to build a cell phone tower, disguised as a 150-foot flagpole, on an abandoned restaurant site, the company entered into discussions with the municipality. The village indicated that the company could obtain expedited approval to build the tower on village property, but that approval would not be granted for the private site...

New Hampshire Supreme Court Requires Remand to Planning Board of Conservation Development Subdivision Application

Posted on July 27, 2009
The town planning board approved a conservation development subdivision (CDS) proposal and yield plan by developer Graystone Builders, Inc. (Graystone). The neighbors of the CDS appealed and the superior court affirmed the CDS but remanded the yield plan to the board to resolve a wetlands compliance issue...

No Judicial Review for Regional Housing Needs Allocation in California

Posted on July 26, 2009
The following is from the Bingham McCutchen July 22, 2009 Land Use Alert: The Government Code requires that the housing element of each city and county’s general plan be updated, generally every five years, to accommodate that jurisdiction’s fair share of regional housing needs...

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Court Upholds Enforcement Order to Clean Up Property

Posted on July 26, 2009
Albert was charged on September 1, 2005 and September 22, 2006 by a Billings Code Enforcement Officer with violating BMCC 27-601(g) by storing salvage on his residence.� Due to complaints received from Albert?s neighbors, City Code Enforcement Officers (?CCEO?) tried repeatedly to work with Albert to clean up his property, but he was not compliant [...

APA Approves Annual ALI-ABA Land Use Institute for 16 Continuing Education Credits

Posted on July 26, 2009
The American Planning Association has approved the August 26-29, 2009 ALI-ABA Land Use Institute in San Diego for 16 continuing education credits. For a summary of the course appearing on this blog click here I tis not too late to register.� For more information, see the Institute brochure available at: http://www...

Preliminary Injunction Upheld to Prevent Residents from Using Lots for Aircraft Takeoff and Landing

Posted on July 25, 2009
The defendants, owners of two parcels, challenged The Town sought to enjoin the defendants from using two parcels they owned for purposes aircraft takeoffs and landings without a special permit.� The Town Code defines ?airport? as ?[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and [...

Although Court Applied Futility Exception to Exhaustion of Administrative Remedies in Fifth Amendment Case, Plaintiffs Failed to Seek Compensation in State Court First

Posted on July 25, 2009
Plaintiff Donovan Realty owns a parcel of land which it rents to a recreational vehicle and boat retailer.� The retailer had been using an overflow parking lot to store sold units until customers picked them up.� This use violated the approved site plan, which designated the overflow lot ?[as] to be used solely for RV [...

Zoning Director and Planning Director Positions Not Necessarily Required to Offer Equal Pay

Posted on July 24, 2009
The County Zoning Director, a female, brought a lawsuit under the federal Equal Pay Act, claiming that the County violated the Act by paying her $15,000 less than it pays the male Planning Director.� She alleged that the positions of Zoning Director and Planning Director are equal positions because they require equal skill, effort and [...

Challenge to Notice of Expired Amended Use Permit is Time-Barred

Posted on July 24, 2009
Following a letter from the City in 2006 notifying the property owner and tenant that the amended use permit for the operation of a portable concrete mixing plant had expired, and the issuance of a Stop Work Order in 2007, the Petitioners (owner/tenant) challenged the determination more than a year after the initial letter was [...

Medical Doctor?s Use of Home to See Patients Permitted Where Restrictive Covenants Ambiguous

Posted on July 23, 2009
The defendant, a medical doctor, uses her primary residence – where she resides with her husband and children – to see zero to two patients per day in her family room.� She has no professional listing in the telephone book and no signs advertising her practice...

County?s Decision on Whether to Amend Comprehensive Plan Not Reviewable by Court

Posted on July 22, 2009
Following a request by Burns Holding for an amendment to the County Comprehensive Plan and a rezoning of its property to allow for a concrete batch plant on its 49-acre site, the Board of Commissioners denied the application for a comprehensive plan amendment and took no action on the rezoning request...

Area Variance Denial Upheld as Board Properly Weighed Statutory Factors

Posted on July 22, 2009
Where the zoning board of appeals weighed the relevant statutory factors and determined that the requested area variance would produce an undesirable change in the character of the neighborhood, that the requested variance was substantial, and that the petitioner?s alleged hardship was self-created, its denial of the variance had a rational basis and was not [...

Rescinded Contract for Boat Mooring Rights Did Not Violate Due Process, Equal Protection or First Amendment

Posted on July 21, 2009
Plaintiffs submitted a bid to acquire the license to operate the mooring and tender service for the town of Huntington, New York.� The town retains exclusive control over moorings in its harbor.� Plaintiffs submitted the highest bid and so the town passed a resolution awarding the license to them...

Court Holds That Documents Disclosed by County to Developer Remained

Posted on July 21, 2009
Note: The following is from the Bingham McCutchen Land Use Development Alert (July 16, 2009). Developers and their opponents have argued for years over the scope of disclosure required by CEQA (California Environmental Quality Act) for agency staff materials that have been shared with a developer...

Town Residents Who Were Not Adjacent Property Owners Lacked Standing to Challenge Public Boat Launching Site

Posted on July 20, 2009
Following a request by the Board of Selectmen to improve the Westport Island?s only public boat-launching site, the planning board approved the project.� The proposal included improvements to the boat ramp and access road as well as expansion of the parking area, and it was expected to increase daily trips to and from the site [...

Stipulation of Settlement Did Not Violate Provisions of State Law Regarding Referral Recommendation Requirements

Posted on July 19, 2009
The Hillside Avenue Preservation Association sought an order vacating the settlement agreement entered into between the Village Board of Trustees, the Planning Board, the Building Inspector and the County Planning Department with Congregation Mischkinois Lavier Yakov, on the grounds that it violates State law...

Use Variance Makes the Use Conforming and No Further Variances Are Required for Expansion Where Original Variance Did Not So Limit

Posted on July 18, 2009
Petitioners are owners of an 8.29-acre shopping center.� The original building was constructed in 1956 after the Court at the time determined that the owners had a vested right to build under zoning code provisions applicable to a neighborhood retail district� in which the property was situated prior to 1956, despite the fact that the [...

Enactment of Moratoria is a Non-Reviewable Legislative Matter, But Whether Council Acted in Bad Faith in Denying Site Plan is a Question of Fact

Posted on July 17, 2009
Geisler purchased property in the Overlay District of Cedar Falls for the purpose of developing an eight-unit apartment complex.� He submitted a site plan to the planning and zoning commission in May, and during the commission meeting the city planner stated that the plan meet all of the basic ordinance requirements...

Court Upholds Fine of $100 Per Day Property was not in Compliance with Consent Decree

Posted on July 16, 2009
The zoning administrator issued a notice of violation to the Vereens for violating the zoning ordinance by keeping on their property inoperable vehicles, tires, trailers, boats , a mobile home and other debris. After failing to comply with the ordinance for four months, the County sought a court declaration that the property was a prohibited [...

Member of the Public May Be Subpoenaed for Misrepresenting Public Official?s Statement Before Landmark Commission

Posted on July 15, 2009
� In a case this blog has been following since the appellate decision was issued a year ago, the New York Court of Appeals recently upheld the City of New York Department of Investigation’s authority to subpoena private citizens during an investigation regarding a public hearing before the City Landmarks Commission...

VT Superior Court Blocks Enforcement of Residency Restriction Ordinance for Convicted Sex Offender

Posted on July 14, 2009
Parties are due back in Court this week (July 16th) in a case challenging the residency restrictions for convicted sex offenders in the City of Barre, Vermont. The American Civil Liberties Union is representing a young man who claims that he can no longer live with his wife and children in Barre as a result [...

Neighbor Has Standing to Sue for Granting of a License to Build a Dock Prior to Construction

Posted on July 13, 2009
The Supreme Court of Georgia reversed a decision by the Georgia Court of Appeals and ruled that a couple living in the coastal marshlands has the right to sue the State for granting a neighbor a license to build a dock. Jane Britt Vasarhelyi sought, and obtained, a license from the State Department of Natural [...

Controversial Florida Hometown Democracy Initiative Clears Hurdle For November 2010 Ballot

Posted on July 12, 2009
Now known as ?Amendment 4,? the Florida Hometown Democracy initiative cleared major hurdles on the way to the fall ballot. ��In June 2006, the Florida Supreme Court held that the initiative does not violate the rule that all proposed amendments must stick to a ?single subject;? and the court found that the ballot language is [...

Washington State Enacts New Regional TDR Law

Posted on July 11, 2009
In an effort to slow the conversion of rural, farm and forest land, effective July 26, 2009, the State of Washington will implement a new regional transfer of developments rights (TDR) law focused on four counties and 71 cities within the Puget Sound region...

One Maryland: Smart, Green and Growing Legislative Package Enacted

Posted on July 11, 2009
The Smart and Sustainable Growth Act of 2009 which took effect on July 1, 2009, was designed to strengthen the connection between land use actions and the comprehensive plan as a result of the 2008 Supreme Court ruling in Trail v. Terrapin Run, LLC, 403 Md...

Preliminary Injunction Upheld to Prevent Residents from Using Lots for Aircraft Takeoff and Landing

Posted on July 10, 2009
The Town who sought to enjoin the defendants from using the two parcels they owned for purposes aircraft takeoffs and landings without a special permit.� The Town Code defines ?airport? as ?[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraft being used [...

Denial of Variance for Sign Upheld, But Trial Court Erred in Considering Testimony/Evidence Not Presented to the BZA

Posted on July 09, 2009
Since 1991, Edward Rose has displayed a 16.75-foot tall, 409.75-square-foot on-premises pole sign to advertise its apartment units as well as to provide the company?s contact information (phone number, website, etc.). In March 2007, Edward Rose received a notice that the sign was in violation of several zoning ordinances, specifically provisions limiting the sign to [...

Board Properly Denied Area Variances for Already Constructed Decks

Posted on July 08, 2009
Respondents James and Penny Wohrle and Respondent Jerry Judd (collectively Respondents) constructed decks on their respective properties on Coeur d?Alene Lake without having first obtained either a variance or building permit from Appellant Kootenai County...

Attorneys for Plan Commission Lack Authority in a Mediation to in Essence, Approve Subdivision Application

Posted on July 07, 2009
Following denial of its request for primary plat approval for a subdivision, The Lake County Trust Company (?LCTC?) appealed and the trial court ordered mediation. Eventually the Commission and LCTC reached a written settlement agreement (the ?Agreement?) providing that LCTC submit a revised primary and sketch plan in accordance with the Agreement, and then the [...

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