Legal Analysts

Showing posts with label Zoning. Show all posts
Showing posts with label Zoning. Show all posts

Tuesday, October 26, 2021

New Zoning Law: Expansion of Court's Power to Order Removal of Building in Violation of Building Code

Be warned, the process just got a lot easier for a city / district court Judge to "order the removal of the building or an abatement of the condition" that is in violation of "any provision of the uniform code." 

Previously, there was a functional impediment when cities, towns, and villages sought to obtain such an order from the Court. While zoning violations were typically brought in city or district court, only a Supreme Court Justice had the authority to order the removal of the building or an abatement of the condition in violation. This obstructed enforcement of violations. 

Now, with A3028, having been signed into law on October 25, 2021, this is changed, and local courts, such as city and district courts, are empowered to render such an Order. 

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?

Monday, February 11, 2019

Brokering Illegal Real Estate Is Like Selling Drugs

Thursday, December 03, 2015

Zoning Ordinances Banning the Sale of Medical Marijuana Likely Discriminate Against People With Disabilities

Jessica Vogele, the number one ranked law student in the 2L class at Touro Law Center who is also a Law Clerk at Lieb at Law, P.C. addresses the most hot-button issue on Long Island today by delving into the zoning of medical marijuana facilities within her article published in The Suffolk Lawyer.

In July 2015, the New York State Department of Health licensed five companies to manufacture and sell medical marijuana in compliance with the Compassionate Care Act of 2014. Although no manufacturing plants will be located on Long Island, there are plans to build two dispensaries – one in Nassau County and the other in Suffolk County. The proposed site for Suffolk County is located in the Town of Riverhead and has met considerable resistance from town residents due to its proximity to a high school and the risks of increased violent crime and traffic generally associated with medical marijuana dispensaries. This backlash against the proposed site has prompted the Village of Islandia to preemptively amend its zoning ordinance in order to ensure that no dispensaries will be placed
within the village’s boundaries in the future.

The issue here is whether the village’s new zoning ordinance, which prohibits the sale of medical marijuana dispensaries within its boundaries, discriminates against people with disabilities.

Tuesday, April 02, 2013

Zoning Regulations are Concerning with Use of Land, Not Identity of User - Per the Court of Appeals

In Sunrise Check Cashing and Payroll, Inc. v. Town of Hempstead, the State's Highest Court ruled that "a zoning measure that prohibits check cashing establishments in a town's business district is invalid, because it violates the principle that zoning is concerned with the use of land, not with the identity of the user". 

While the Court does state that adult entertainment and pawnshops can be regulated based upon their negative secondary effects on the surrounding communities, check cashing is not a similar category. The court did therefore provide for the possibility that adverse secondary effects could justify zoning, but said that such effects were not proven in this case regardless. 

This opinion is important for commercial real estate professionals because it provides support for occupants' discretion in their business enterprises and is very pro-business while reducing barriers to entry.