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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

Animal Hospice Was Not an Accessory Use nor was it Entitled to Nonconforming Use Status

Posted on April 27, 2009
The petitioners own and operate out of their home in a residential district ?Angels? Gate,? a hospice and rehabilitation center for approximately 200 terminally ill and disabled animals. Following the issuance of a notice of violation, the petitioners applied to the zoning board of appeals for a certification of existing use on the ground that [...

No Standing to Challenge Amendment to Comprehensive Plan

Posted on April 26, 2009
Relying on a decision from last year, the Idaho Supreme Court reiterated that since an amendment to a county comprehensive plan is not the same as a permit authorizing development, the parties challenging the amendment lacked standing to do so since they do not qualify as an ?affected person? under I...

22 Shih Tzus are Too Many Pets for One Household in a Residential District

Posted on April 25, 2009
The Connecticut Court of Appeals upheld the denial of a special use permit by the West Hartford Plan and Zoning Commission forcing the Plaintiff to down-size from 22 Shih Tzu pet dogs to three. Since the zoning ordinance requires residents owning more than two dogs to apply for a special use permit, and Kilburn [...

Record Did Not Support Claim by Coastal Commission that Denial of Permit in Environmentally Sensitive Area Would Be Taking

Posted on April 24, 2009
The California Court of Appeal (6th Dist.) ruled the California Coastal Commission?s defense of its issuance of a permit allowing construction of a house in an environmentally sensitive habitat area on the ground failure to issue the permit would have been a compensable taking was not supported by substantial evidence in the record...

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CT Appeals Court Dismisses Challenge to Special Use Permit and Site Plan Approvals Due to Lack of Standing

Posted on April 23, 2009
Following conditional approvals of a special exception and site plan to expand an existing campground currently consisting of 480 sites, the plaintiffs unsuccessfully appealed the decision to the zoning commission and then to the superior court. The plaintiffs alleged in their complaint that they were ?statutorily or classically aggrieved by the decisions of the [...

No Fair Housing Act Amendment Violation Where Township Did Not Discriminate and Applicant Failed to Prove Accommodation was Reasonable and Necessary

Posted on April 22, 2009
Haven Chemical Health Systems purchased a six-bedroom, four-bath house in a district zoned rural residential intending to use the house as a residential treatment facility for 10 chemically dependent people. Although the Township zoning code only allows a state-licensed residential facility to serve six or fewer individuals, Haven argued that there is a therapeutic benefit [...

Board May Not Rely on Draft Plan as Basis for Denial of Special Use Permit

Posted on April 21, 2009
The Town Board impermissibly denied an application for a special use permit to allow a single-family residence in a J2 Business District on the basis that a draft revitalization plan existed for the area since the plan had not been adopted and it was uncertain whether it would ever be adopted...

Private Land Use Agreement Between Developer and Neighborhood Groups Is Enforceable

Posted on April 20, 2009
With sparse court attention to the subject of community benefits agreements (CBA), a recent opinion by a New York appellate court is a positive signal regarding the enforceability of the private agreements regarding land development.� The contract at issue, however, is not a CBA (for more information on CBAs click here)...

Fourth Circuit Says Sign Ordinances Need Not Include Explicit Statement of Governmental Purpose and Upholds Ordinance as Content-Neutral

Posted on April 19, 2009
Prior to October 2006, the Town of Surfside Beach had an ordinance that required the issuance of permits before most on- or off-premises signs could be constructed. The ordinance treated all off-premises signs as billboards, which could be placed only on vacant lots within a designated area (a ?C-1 highway commercial? zone)...

RLUIPA Defense to Zoning Enforcement Action Not Enough to Remove Case to Federal Court

Posted on April 18, 2009
The Sahag-Mesrob Armenian Christian School failed to secure a required conditional use permit prior to opening the school.� After City enforcement actions against the school were unsuccessful, the commenced the present legal action in state court for nuisance abatement to enjoin the unlawful operation of the school...

International Building Code Does Not Violate the Constitution

Posted on April 17, 2009
The 11th Circuit Court of Appeals, in affirming a dismissal of a pro se civil rights complaint, agreed that the complaint against the City Commission and its commissioners, a staff member of the department of transportation and a developer failed to state a claim for which relief could be granted...

Where Ordinance Allows Apartment Buildings, Condominium Units Are Also Permitted Unless Specifically Excluded

Posted on April 16, 2009
A developer asked the county to rezone a portion of land from ?A1? (Agricultural 1) to ?CD-R1? (Community Development ? Single-Family Residential). The Board of Supervisors (the ?Board?) approved the request and also granted the developer a special use permit for condominium development on the land...

Appellate Court Dismisses Current Round of Ongoing Litigation over Atlantic Yards Redevelopment

Posted on April 15, 2009
In February, a New York appellate court affirmed the dismissal of complaint challenging the Atlantic Yards redevelopment project.� Specifically, among other things, the Court upheld as reasonable the Urban Development Corporation?s blight designation for the project area and it found that the project qualified as a ?civic project...

Historic District Commission?s Permit Denial Not Taking Since Action Did Not Deny Owner All Economically Viable Use of the Property

Posted on April 14, 2009
Plaintiffs own an 8.5-acre parcel of vacant land in Carver?s Savery Avenue Historic� District. The parcel is divided into four lots. Savery Avenue, built in 1861 with funds provided by a local industrialist, is a tree-lined roadway, believed by residents to be the first divided highway in the United States...

North Dakota Supreme Court Explains Contract Zoning Without Passing on its Legality

Posted on April 13, 2009
The North Dakota Supreme Court has never ruled on the legality of contract zoning, and they found no reason to do so recently since they found no evidence of it in the case presented.� The Court explained that contract zoning is present where a local government ?contracts away its zoning power or obligates itself by [...

Constitutionality of County Adult Business Ordinance Upheld and Court Finds Ordinance Neither Overbroad nor Vague

Posted on April 12, 2009
An adult business ordinance adopted in 2008 was challenged as unconstitutional by the operators of Enlightened Reading, Inc., d/b/a Erotic City, which sold novelties, lingerie, and merchandise that contained sexually explicit material. The original ordinance was repealed and replaced by Ordinance No...

Four-Year Wait to Challenge Zoning Board Determination is Time-Barred

Posted on April 11, 2009
An appellate court in New York held that where the village zoning board of appeals granted a set-back variance in June of 2003 and the adjacent property owners waited until September of 2007 to challenge the board?s action, the challenge was time-barred...

Court Must Decide If Public Purpose Claimed for Road Was Pretextual

Posted on April 10, 2009
The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county?s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged In the late 1990s, the Hawaii County Council executed a development agreement with [...

California Appeals Court Reminds Cities Must Decide ?Public Use? Before Condemnation

Posted on April 09, 2009
When the California Court of Appeal began its February opinion with the statement, ?This is a case of ?condemn first, decide what to do with the property later,?? the outcome was pretty clear.� In 2003, the city of Stockton adopted a ?resolution of necessity? for the condemnation of two parcels owned by Marina Towers, LLC...

Federal Telecommunications Act Preempts Local Wireless Ordinance That Is Based On Technological Preference

Posted on April 08, 2009
Judge William Young, sitting by designation in the Southern District of New York, held on March 26, 2009, that the Town of Clarkstown?s (?Town?) wireless communications zoning ordinance was unconstitutional.� In New York SMSA Limited Partnership d/b/a Verizon Wireless v...

Special State Commission May Constitutionally Develop Comprehensive Plan and Zoning Regulations for Area Under its Jurisdiction

Posted on April 07, 2009
The Oklahoma Supreme Court found that it was not an unconstitutional delegation of legislative power where appointive members of a Commission created to establish land use plan for the state capitol and hospital complex adopted a comprehensive plan and zoning regulations...

Zoning Ordinance Unconstitutionally Vague Where It Lacked Standards to Distinguish ?Front Yard? and ?Side Yard? for Purposes of Setback Requirements

Posted on April 06, 2009
Plaintiffs’ removed a barn on their property and constructed a quonset hut on the barn’s foundations. The property is in the southwest corner lot at the intersection of Highwood and Hay Roads. Their residence faces Highwood Road to the north...

Zoning Board?s Denial of Natural Resources Special Use Permit and Area Variances Upheld

Posted on April 05, 2009
The zoning board?s denial of an application for a natural resources special use permit and three area variances was upheld where the record supported a finding that the Board considered all of the relevant factors enumerated in Town Law �267-b(3)(b). Further, although the applicant alleged that the denial was irrational because it failed to comply [...

Landowners Not Entitled to 8-Year Zoning Freeze for Proposed Subdivision on Martha?s Vineyard For Failure to Timely Commence Action

Posted on April 04, 2009
The Supreme Judicial Court of Massachusetts found that the trustees of two parcels of land on Martha?s Vineyard were not entitled to an 8-year zoning freeze for a proposed subdivision after inaction by the town planning board resulted in approval since the town clerk did not issue a certificate to memorialize the final approval of [...

NY District Court Holds that NYC May Enforce its Arterial Highway Advertising Ban

Posted on April 03, 2009
Plaintiffs challenged sections of the City?s Zoning Resolution and Administrative Code governing off-site advertising signs which provide that within 200 feet of an arterial highway, no permitted sign may be larger than 500 square feet and no advertising sign shall be allowed at all...

City?s Historic Designation of Apartment Building Owned by Church Does Not Constitute a Substantial Burden Under RLUIPA

Posted on April 02, 2009
In a 9-page order issued yesterday, the�United States District Court for the Central District of Illinois rejected a church’s RLUIPA (Religious Land Use and Institutionalized Persons Act) challenge to the City of Peoria’s decision to landmark an historic apartment building, and the city’s�refusal to allow the church to demolish the�building...

New York Climate Change Report Card: Improvement Needed for More Effective Leadership and Overall Coordination with Local Government

Posted on April 02, 2009
Last month the University of Colorado School of Law and the Leeds School of Business hosted the Elevate 2009:Climate Change and the New Frontiers of Urban Development conference.� Organized by Professors Nestor Davidson and William Shutkin, the program brought together thought leaders from across the country, to offer an interdisciplinary array of papers and presentations...

Denial of Zoning Amendment Constituted Reverse Spot Zoning

Posted on April 01, 2009
Petitioner sought a zoning change for�a parcel of undeveloped property�in southwest Miami-Dade County from AU (agricultural zoning permitting one residence per five acres) to EU-1 (estate zoning permitting one residence per one acre).� The Miami-Dade County Commission denied the zoning change and the circuit court appellate division, on�first-tier certiorari review, upheld the decision of the [...

Use Variance to Allow Mixed Use Development for Student Housing, Residential Uses, Hotel and Commercial Uses Upheld

Posted on March 31, 2009
Following the approval of a use variance application to allow the use of two parcels in an M-1 light industrial district for a mixed use development project that will include student housing, other residential uses, a hotel, and commercial uses, petitioners appealed seeking to annul the variances...

Colorado Appeals Court Concludes that Fire Protection District Is Exempt from the State?s PUD Act and Local Zoning

Posted on March 30, 2009
The Hygiene Fire Protection District (the ?District?) wanted to build a second fire station within its service area in the county.� The District planned to purchase land (the ?Land?) in a planned unit development (?PUD?) and to construct a fire station on the Land (the ?Project?)...

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