Legal Analysts

Showing posts with label Land Use. Show all posts
Showing posts with label Land Use. Show all posts

Thursday, June 17, 2021

Construction Question - Can you get around zoning restrictions by claiming free speech?

In Burns v. Town of Palm Beach, the 11th Circuit said free speech does not let you build a mansion when zoning prohibits it.

This case is a true Palm Beach tale. 

Donald Burns sought to knock down his "traditional" beachfront mansion and build an entirely new one, double the size, in a mid-century modern style. 

Get that - mansion #1 wasn't big enough so he needed mansion #2. 

In order to build his new mansion, Burns had to obtain approval from the Town of Palm Beach's architectural review commission. 

However, the commission denied Burns' building permit and found that his new mansion was not in harmony with the proposed developments in land in the general area and was excessively dissimilar to other homes within 200 feet in terms of architecture, size, and mass. 

This prompted Burns to take the dispute to federal court where Burns sued the town, claiming that the denial of his building permit was a violation of his First Amendment free speech rights and Fourteenth Amendment rights to due process and equal protection. 

Our hats are off to Burns' attorneys for this creative argument (lawyers that think outside the box are the best client advocates). Yet, Burns lost. 

The 11th Circuit found that architectural design was not protected by the First Amendment because "there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion." 

In the majority opinion, Judge Robert Luck stated that "one day, we may even find some residential architecture to be expressive conduct. . .but Burns' new mansion is not Monticello or Versailles. . ." 

Do you agree?

Should artistic expression override zoning laws?

Tuesday, August 14, 2018

Great Architects Are Land Use Experts

As of right land use is the dimensional and physical limits that a town or village permits on a given parcel of property and which is set forth within a given town’s or village’s municipal code. Municipal codes throughout the East End can be found at and should be fully analyzed for as of right uses before a given parcel is purchased, especially when the purchase is being made with an eye towards development. These as of right land use laws cap the size, siting, materials, and engineering of structures while containing severe penalties for those who do not comply. These laws also differentiate the good architects from the great ones.

Read the full article in Dan's Papers by Andrew Lieb, Esq. here. 

Monday, February 24, 2014

Your Property Has No Access to a Public Highway or Street - What to do...?

You just bought your dream summer home right after the completion of a subdivision of an old grand estate. You knocked down some walls to modernize the place, put in a hefty amount of trees and hedges for privacy, and even replaced the exterior wooden shingles. After leaving the city in rush hour and spending hours sitting in traffic, you drive up to your home to discover your driveway has been replaced with a vegetable garden enclosed by monuments. Your lawyer informs you that the survey of the property clearly shows that the driveway is outside of your boundary line and reminds you that you decided to cheap out on Title Insurance (no Fee or Owner’s policy). There is no way the insurance company would ever provide coverage.

Ultimately, you decide that your next course of action is to approach the neighbor who planted the vegetable garden with freshly baked cookies and pray on sympathy to access the street from your house. Remember, people are quite possessive of their property and don't like to share especially when they pay taxes on it, right? Guess what. The law offers you a solution for this problem called an Easement by Necessity. This legal right can free the landlocked property owner and give them the access that they desperately need to the street regardless of the neighbor's gleaming personality.  

So, regardless of your neighbor, you can still get from your car to your house. An Easement means a right to use someone else's land for a specific purpose and the word Necessity means that the right that you seek is indispensable. So, the legal solution says exactly what you, the homeowner needs; a right to cross over someone else's property because it’s an indispensable need to use one's own property. And it gets better. While an Easement is typically something bought and sold as it limits the property owner's right to their own property, an Easement by Necessity is granted by a Court in what is called a Declaratory Judgment Action, wherein the Court declares a right of a party. In New York, this action would be brought pursuant to a statute called the Real Property Actions and Proceedings Law at Article 15, which deals with claims to real property. Other States have similar laws on this topic, it is important to check your local State's laws and regulations with a qualified attorney before making any claims about any rights that you may have.

In New York, a claim similar to this one was just addressed by our Appellate Division, Second Department, in a case called Faviola, LLC v. Patel. Therein, the Appellate Court explained that a property owner who seeks an Easement by Necessity must establish the following to prove their case: "there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land". In English, this means your little property was once part of the property contained within the estate, but that when the properties were divided, the only way to get to your property was through the property that remained part of the mansion and was not subdivided away with yours. In Faviola, the Court made clear that you will only get this Easement by Necessity if the right-of-way was absolutely necessary and "not a mere convenience" to you. 

So, the law understands your plight and levels the playing field between you and your neighbor.