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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

Ninth Circuit Court of Appeals Upholds California?s Outdoor Advertising Act Onsite/Offsite Distinction as Neither Vague Nor Overbroad

Posted on March 29, 2009
As a consequence of an amendment in 2008, the California Outdoor Advertising Act bars offsite commercial advertising, but does not restrict non-commercial speech. The plaintiff, Maldonado, had a long-running dispute with the California Department of Transportation (Caltrans) over the use of a billboard on his property, adjacent to U...

RI Supreme Court Opines that Legislators May Not Sit on Coastal Resources Council Nor May They Appoint Members

Posted on March 28, 2009
At the request of the Honorable House of Representatives of the State of Rhode Island and Providence Plantations, four of the justices of the Supreme Court rendered an advisory opinion on pending legislation concerning the reenactment of the organic statute of the Coastal Resources Management Council (CRMC)...

Wal-Mart Supercenter Site Plan Approval Upheld

Posted on March 27, 2009
After concluding that the petitioner, Residents Against Wal-Mart, had standing to sue because they met their burden of demonstrating that at least one of its members had standing and that it is representative of the organizational purposes it asserts, the Court found that the owners of the property on which the project would be located [...

Court Finds City Failed to Prove Transient Use Constituted a Violation of Zoning Resolution

Posted on March 27, 2009
An appeals court overturned a preliminary injunction against three residential buildings in the Upper West Side of New York City that had ordered them to stop using the SROs (single room occupancy) as transient hotels. The Court determined that the City did not show if would ultimately success in proving that the transient use actually [...

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RLUIPA Does not Apply to AA Meetings as They Are Not a Religious Exercise

Posted on March 26, 2009
Gordon owned an office building zoned in the Special Commercial District (SC), which allowed for an F-1 office use (?primarily office functions in nature?). The Glenside Center signed a lease with Gordon for a portion of his building, intending to use the premises for holding group meetings for members of Alcoholics Anonymous (AA), Narcotics Anonymous [...

US Chamber of Commerce Launches ?Project No Project? Site for Anti-NIMBY Information

Posted on March 25, 2009
The following description appears on a site, launched by the US Chamber of Commerce to fight NIMBY experiences with respect to green power/projects. One of the promises in the development and deployment of new energy technologies is the creation of ?green jobs,? and it is a promise we embrace...

Mississippi Governor vetoes eminent domain reform legislation

Posted on March 25, 2009
Mississippi Governor Haley Barbour vetoed eminent domain reform legislation yesterday after it was passed with strong support from both houses of the state legislature. Today, the Mississippi House voted 101 to 19 to override the veto, but the Senate has yet to weigh in...

Missouri Supreme Court Orders Bond Developer Posted to be Disbursed After Breach

Posted on March 24, 2009
In developing the Winter Valley subdivision in Jefferson County, Essex Contracting Inc. agreed to adhere to the county?s subdivision regulations, which required Essex to post three separate bonds totaling nearly $3.6 million so it could work on all three phases of construction before the final plat was approved...

Upcoming National Planning Conference Offers Outstanding Legal Sessions

Posted on March 24, 2009
Although I routinely provide links for upcoming land use law conferences on a page on this site, I don?t regularly promote specific programs. However, this year the American Planning Association has put together a comprehensive program for Minneapolis that lawyers and planners should consider attending...

Second Appellate Court in New York Upholds Determination that a Wind Farm in a Public Utility

Posted on March 23, 2009
Last year the Appellate Division, Third Department upheld a determination that a wind farm qualifies as a public utility. Last week, the Fourth Department held that the zoning board?s classification of a series of wind-powered generators as a utility was neither irrational nor unreasonable, and that such determination was supported by substantial evidence...

Board?s Failure to Follow its Own Precedent Results in Reversal

Posted on March 22, 2009
The petitioner/plaintiff was granted a building permit to construct a six-story condominium building. Subsequent, a ?10-day notice to revoke? was issued after the building department alleged that the work was not being done in accordance with the petitioner?s certified plans...

PA Supreme Court Finds Ordinance Restricting Size of Billboards Amounts to a De Facto Exclusion

Posted on March 21, 2009
Land Displays, Inc. (?LDI?),in the business of outdoor advertising, erected billboards on real estate that it leased. Between 2003 and 2005, LDI submitted applications to the township for permits to erect billboards on several parcels of property located in the commercial or industrial zoning districts of the township...

Second Circuit Finds No Vested Right Accrues in Special Use Permit Absent Substantial Construction

Posted on March 20, 2009
The second circuit affirmed a decision of the Southern District of New York finding that the Plaintiffs procedural due process rights were not violated when the zoning ordinance changed preventing them from constructing a senior-citizens dwelling. Although the plaintiffs alleged that they had secured a special use permit, the Circuit Court concluded that vested rights [...

Municipal Regulation of Formula Businesses: Creating and Protecting Businesses

Posted on March 19, 2009
Below is an abstract of an article I just posted on SSRN on using land use regulations to address forumla and big box businesses. People have been trying to exclude chain stores from their communities for decades. This includes “big-box” chains-the behemoth retailers that prefer an architecture of rectangular, single-story unadorned structures reaching 200,000 square feet [...

County Violated Telecommunications Act Where Denial Was Not in Writing and Not Supported by Substantial Evidence

Posted on March 19, 2009
A licensed provider of wireless communication services and the owners of land leased to the provider for a cell phone tower challenged a planning commission?s denial of their application to construct a cell phone tower. The commission claimed the application was denied due to the visual impact of the tower and fact that the land [...

Rezoning Amounted to Illegal Spot Zoning for Failure to Comply with Master Plan

Posted on March 18, 2009
The developer, owner of a parcel of undeveloped land located in a C-1 Neighborhood Commercial Zone, filed a site plan application to construct a professional and two retail buildings on its site. Although the application complied with the requirements of the C-1 Zone, residents asked the township council to rezone the property to Office Professional [...

RI Supreme Court Allows Allegation of Irregularities in Adoption of Zoning Amendments to Proceed

Posted on March 17, 2009
Following the purchase of a 65 acre parcel of land in 2005, the Plaintiff sought to subdivide it and discovered that that in 1998 the Town had adopted new zoning ordinance, including comprehensive amendments to the zoning ordinance text and map, which in effect decreased the number of buildable lots within the Plaintiff?s property...

Court Orders Removal of House in Historic District for Failure to Comply with Setback Requirements

Posted on March 16, 2009
The Montana Supreme Court ruled that a Virginia City home owner must remove a new house that violates setback requirements. This saga began 10 years ago when the owner of a property in the historic district applied for zoning and development permits to build a house...

Referendum Regarding Rezoning Fails For Failure for Lack of Specificity

Posted on March 15, 2009
Following a rezoning of certain property at the request of a developer, a community group, ?Save Our Small Town,? submitted a referendum to the Town Clerk for the ballot. Following state statute which requires that the referendum petition describe in one hundred words or less the ?principal provisions of the measure,? the petition described the [...

NYS DEC Releases for Comment Draft Guide for Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements

Posted on March 14, 2009
This week the NYS Department of Environmental Conservation released for comment a Guide for Assessing Energy Use and Greenhouse Gas Emissions in an Environmental Impact Statement. The proposed policy provides instructions to DEC staff for reviewing an environmental impact statement (EIS) that includes a discussion of energy use or greenhouse gas (GHG) emissions...

General Permit Proposed for Small-Scale Wind Turbines in Adirondack Park

Posted on March 14, 2009
At a meeting this week of the Adirondack Park Agency, a staff proposal was presented that would allow for a streamlined and expedited process for the siting of small-scale residential and commercial wind turbines up to a height of 125-feet within the six-million acre park...

Second Circuit Denies Due Process Claim Because of Lack of Property Interest in Erroneously Granted Building Permit

Posted on March 13, 2009
Plaintiffs alleged that actions taken by zoning board of appeals and the village board of trustees in connection with Plaintiffs’ residential building permit violated their civil rights. Plaintiffs owned a one family home and decided to add a rear addition to be used as a family room that would result in the house covering 26% [...

Mayor Who Owns Title Company Disqualified from Reviewing Application of Former Client

Posted on March 11, 2009
The Plaintiff, with encouragement from municipal officers, accumulated land for purposes of developing a new town center. The proposal for the new town center was met with opposition and a long history of litigation beginning in 2001. In 2004, the town adopted an ordinance for an adult active community as well as a new Master [...

Municipalities Preempted From Prohibiting Manufactured or Mobile Homes of a Certain Age

Posted on March 10, 2009
In 2001, the County of Pasquotank adopted an amendment to its manufactured/mobile home units ordinance to provide that, ?[m]anufactured homes must have a an attached HUD label and shall not be more than ten(10) years old on the date of application for a building permit for the purpose of permanent set-up...

Takings Claim Dismissed by Third Court of Appeals on Ripeness Grounds

Posted on March 09, 2009
Carroll entered into an agreement with the Township of Mt. Laurel to sell them approximately 14 acres of land he owns. The agreement was never consummated because Carroll was unable to satisfy a condition of sale (he needed a Letter of Interpretation from the State Department of Environmental Protection that showed ?no greater degree of [...

Township Acted Appropriately in Appointing Special Solicitor to Avoid Conflicts of Interest

Posted on March 08, 2009
The applicant, a corporation seeking to construct a housing complex for the elderly in an area designated ?high density residential,? was denied a application for a condition permit because the proposal did not include the required amenities for such a complex, nor did it address the traffic and access issues associated with housing for the [...

Permit to Construct Chicken House Invalidated for Failure to Provide Proper Notice

Posted on March 08, 2009
Following the granting of a conditional use permit for a chicken house, a neighbor challenged the approval on the grounds that the County failed to follow the statutory notice provisions for the required public hearing. Specifically. OCGA §36-66-4(a) provides that notice for public hearings on conditional use permits be published, ?[a]t least 15 but not [...

Developers Not Entitled To Vested Rights After Property Rezoned

Posted on March 07, 2009
In considering whether developers obtained a vested right to a commercial use of their property under Code § 15.2-2307 as a result of proffers they made to obtain approval of a rezoning application, the Virginia Supreme Court concluded that the circuit court erred in affirming a board of zoning appeals’ ruling that the developers had [...

No Prohibited Conflicts of Interest for Zoning Board Members With Respect to Project Developer

Posted on March 06, 2009

Trash, Rubbish, Junk and Junk Automobiles Constitute a Nuisance that Must be Abated

Posted on March 05, 2009

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