Civil Remedies › Commercial Real Estate › Zoning, Planning & Land Use

Temporary Regulatory Takings Do Exist in California!

Given the maze of procedural and substantive hurdles involved, property owners rarely succeed with regulatory takings claims. Even when owners do win, it is yet more uncommon for courts to award damages, instead allowing the...more

Real Estate Tip – Permitting: A $48m Lesson on the Importance of Notifying All Neighbors

In a recent Missouri case, a landlord lost a very significant commercial tenant and a title search company lost $48 million because of an incomplete permitting process. The tenant sued the title search company for failing to...more

2012 Eminent Domain Year in Review & 2013 Forecast

As we look back on 2012, it was unquestionably a busy year. Federal funds continued to make their way to local projects and shovels continued to break ground for infrastructure projects. The potential use of eminent domain...more

Koontz v. St. Johns River Water Management District

Brief Of Amici Curiae Institute For Justice And The CATO Institute In Support Of Petitioner

Coy Koontz, a Florida land owner, was denied a permit to develop his commercial property because he would not agree to use his money and labor to improve 50 acres of government-owned land miles away from his land. Improving...more

I Saw the Sign, and It . . . Was Taken Down?

Those don't quite sound like the lyrics to the early-90's popular Ace of Base hit, "The Sign." But they likely describe the situation of many travelers on the I-10 freeway in Los Angeles thanks to a recent California Court...more

Earth Matters - October 2012: Phillips Lytle Succeeds in Overturning a Zoning Denial for a Client

Earlier this year, Phillips Lytle successfully challenged a Town’s denial of a client’s application for a zoning use variance to construct and operate a wireless telecommunications tower within a privately-owned, large rural...more

CERCLA Investigations That Really Are At Risk

Site owners who conduct environmental investigations of potential releases of hazardous substances in the expectation that they will be able to recover their costs from the party whose operations gave rise to that threatened...more

Attorney Member of Public Interest Organization Properly Awarded Attorney Fees

In Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg, 2012 DJDAR 7386 (2012), the California Court of Appeal for the First Appellate District decided a novel fee recovery case brought under the California...more

Town Board was wrong to impose Special Permit conditions where the use was permitted and a Special Permit not required

Conditions on site plan approval must relate only to use of the property and not to the persons who own it.

Petitioners owned land on which they operated a motor vehicle sales and service business. They bought an adjacent parcel of vacant land for the purpose of expanding their business. Both properties were zoned "Commercial C:...more

New York Supreme Court Upholds Towns’ Fracking Bans

In two separate decisions issued last week, the Supreme Court of the State of New York (the state's trial level court) upheld the Town of Dryden's ban on hydraulic fracturing (or fracking) in Tompkins County, and...more

Texas Supreme Court Heard Condemnation Case Today - $48,000 or $21 million?

Today the Texas Supreme Court heard an oral argument to decide whether a pipeline company will pay $48,000 or $21 million to condemn 24 acres for a gas processing facility. Rent was less than $23,000 annually; the...more

What is the measure of damages caused by negligent professional opinion on zoning by an architect?

Architect, negligent on zoning opinion, not liable for cost of making property comply.

Plaintiff Developer hired defendant architect for advice, among other things, regarding the zoning requirements and restrictions on a certain property in Manhattan. The architect advised that the developer would be permitted...more

ZBA meeting minutes filed 6.10, not Decision filed 6.26, held to trigger 30-day statute of limitations for Article 78 proceeding

Filing of minutes of ZBA triggers art. 78 statute of limitations, not Decision filed two weeks later

After area variances were granted by the Zoning Board of Appeals in connection with the construction of a new hotel, minutes of the meeting were filed on June 10, 2010. The minutes contained a recitation of the decision and...more

Florida Supreme Court Decision in Koontz is Bad News for Florida Land Developers and Real Estate Investment - Will It Go Up to the...

The Florida Supreme Court made national news as well as in Florida land development and real estate investment circles this week as it released its opinion in Koontz IV (read the full text here), ruling that it is not a...more

Generalized unsupported public opposition to use allowed by special permit cannot overcome hard evidence.

Planning board decision based on unsupported public opposition overturned, where hard evidence ignored.

A devloper sought a special permit for an affordable housing project of 48 units in an area permitting the use by special permit. The issue of water runoff was fond to have been adequately addressed by the lead agency in the...more

SEQRA reviewing court must use reasonableness and common sense to tailor "hard look" to complexity of actually existing problems in project.

Issues for court in SEQRA review: Were potential adverse impacts ID'd? Was there a reasonable elaboration of basis for decision...

The proposed rezoning of an area of approximately 128 blocks in Brooklyn was reviewed environmentally under the State Environmental Quality Review Act (SEQRA) and New York City Environmental Quality Review (CEQR)by the...more

Bldng permit issued in error can be revoked, but reliance on permit, and expenditures can be considered in deciding remedy.

Reliance on invalid permit and expenditures reduces harsh remedy on revocation of permit

A Village issued a building permit in error. The property owner cuased construction work to be performed in reliance on the erroneously issued permit. After discovery of the error, the Village revoled the permit, issued a...more

Inadvertent franchise relationship: What you should watch for

Originally published in the Colorado Real Estate Journal, July 20, 2011 - August 2, 2011. Franchising, a versatile business model, is not limited to fast-food restaurants. Colorado is home not only to familiar...more

Zoning law in effect at time application is completed is applicable, rather than new zoning law adopted after application but before planning board decision.

Memorandum and Order upholding dismissal of petition-complaint on SEQRA and applicable zoning law issues.

A Planning Board decision under the State Environmental Quality Review Act was challenged, as was the zoning law under which the proposed shopping center project was judged by the Planning Board. The Planning Board used the...more

Lots unapproved for building must be approved where planning board did not comply with cluster zoning procedure

Decision affirming judgment annulling planning board denial of application to free lots for building

Plaintiff bought two lots in a subdivision at a tax sale. After taking title he saw that the lots were marked "not approved for building lots" on the plat map. Planning Board denied his application to free the lots for...more

Recreation fees should not be imposed until certain statutory findings under Village Law are made

Decision and Order affirming judgment declaring fee invalid in absence of statutory findings.

A recreation fee was imposed by a village planning board as a condition to the issuance of site plan approval for a single-family house. However, the planning board had not made findings regarding the recreational needs...more

Arogas v. Frederick County BZA: Proffer Amendment After the Public Hearing

The Virginia Supreme Court handed down two significant cases on local government law on September 16, 2010. One was a proffered zoning case. Arogas v. Frederick County BZA deals with a proffer amendment made by the Board...more

Town was named as defendant in foreclosure action based on holding drawn down LOC funds for unfinished subdivision improvements.

Memo of Law on motion to dismiss mortgage foreclosure action as against Town.

The estate of a deceased principal of a land developer company held a mortgage on lands on which a residential subdivision had been approved, but the public improvements of which had not been completed. The Town drew down the...more

Webb Tract, LLC v. United States of America

Plaintiff's memorandum of law in support of it's motion for summary judgment

A case arising from the NIKE missile system that once circled the nation, but was dismantled in the 1960's. Here, the USA had dismantled the missile silos, but sought to enforce the donut shaped "safety easement" around the...more

Stay Out Of This Domain: Court of Appeal Rejects Insured's Suit Against Insurer For Failure To Defend Condemnation Action Charging...

Public agencies throughout the State are permitted to deduct environmental clean-up costs from their determination of the just compensation offered to private property owners whose properties are being acquired through...more