Land Use Planning and Development Regulation Law
Authors:
Juergensmeyer, Julian Conrad / Roberts, Thomas E.
Edition:
3rd
Copyright Date:
2013
28 chapters
have results for Land Use Planning and Developments Regulation Law
Preface 2 results
- This hornbook, with the same title, is an abridgment of Land Use Planning and Development Regulation Law, Practitioner Series Third Edition (2012) and is intended to be more manageable for student use. Numerous footnotes and some text have been omitted; therefore, readers doing land use law research should consult the Practitioner Series Third Edition.
- This hornbook owes its origins to Hagman, Urban Planning and Land Development Control Law originally published in 1971. Its author, Professor Donald Hagman, was an important figure in the land use planning and control field during the 1960s and 1970s as the field moved into its modern era. After Don’s tragic and untimely death in 1982, Professor Juergensmeyer began the preparation of a second edition, which was published in 1986. Those interested in Professor Hagman’s many accomplishments may wish to read the dedications to him at 29 UCLA Law Review 772 (1982).
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Chapter 7: Subdivision and Planned Unit Development Control Law 309 results (showing 5 best matches)
- Subdivision regulation parallels zoning from an historic development perspective, and with zoning, constitutes the traditional foundation of American land use planning and control law. Unlike zoning, subdivision regulation has historically focused almost exclusively on residential development and has been applied only to the development of raw land. In recent years, however, subdivision control law in some states has become newly revitalized and its role greatly enhanced. Traditional subdivision regulation approaches and principles are rapidly being replaced by “development codes” which combine zoning, construction and design codes, and planned unit developments and subdivision regulations. Today, in some jurisdictions “[i]t is principally through the process of subdivision approval that communities take a serious look at the problems of growth, the environmental impact of growth, and the availability of adequate facilities and services to accommodate growth” and subdivision...
- Subdivision regulation generally refers to controls implemented during the land subdividing stage of the development process and includes such measures as platting procedures and controls, design regulation, improvement requirements, dedication requirements, in-lieu fees, performance bonds and the like. Official mapping is another kind of land use control which implements planning by giving precise locations of future streets, parks and sites for other public facilities within a local jurisdiction. Planned unit developments are residential developments that include multifamily and single-family housing and that may also include commercial development.
- Is a county thoroughfare map designating corridors for future roadways, and which forbids land use activity that would impede future construction of a roadway, adopted incident to a comprehensive county land use plan enacted under the local government comprehensive planning development regulation act, facially unconstitutional under
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- In developing an understanding of the land development regulatory techniques discussed in this chapter, it is important to keep their primary residential focus in perspective. While primarily directed toward residential development, they are often cross-matched with complimentary techniques and integrated into the overall land development control law system. For example, although subdivision regulations are generally independent of zoning regulations, planned unit developments, which often include commercial uses, are often found within zoning regulations. It is also important to note the new role that they often play as the focal point for implementing various growth management techniques such as the establishment of urban growth boundaries. The increasing popularity of conservation subdivisions introduces many smart growth and new urbanism concepts into the area as well.
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Chapter 1: An Introduction to land Use Planning and Control Law 99 results (showing 5 best matches)
- Perhaps the fastest growing area of land use control law is that relevant to, and at times overlapping with that of, protection of the natural and built environments. Environmental law is even newer than land use law and in its early days it ran parallel to rather than intertwining with land use planning and control. Today, environmental protection and land use regulation overlap to such a great degree on many points that it is impossible to entirely separate the two. Chapter 11 covers the integration of environmental and land use control law in the regulation of ecologically sensitive lands. Chapter 12 focuses on the “built environment” through consideration of aesthetic regulation and historic preservation. Chapter 13 treats farmland and open space preservation problems and the land use planning and control techniques for their accomplishment. The newly important issues raised by urban agriculture are also considered.
- There are several other one volume reference books available. Those with a primary focus on land use law include: Daniel R. Mandelker, Land Use Law (5th ed. Michie Co. 2003) and Peter W. Salsich, Land Use Regulation: Planning, Zoning, Subdivision Regulation, and Environmental Control (2d ed. 2004).
- Subdivision control law is almost as old as zoning law in this country and is a well recognized part of the land use control law “core.” The planned unit development concept which is closely tied conceptually and procedurally to subdivision regulation has become an important subtopic of subdivision control.
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Planning and land use control law have always been recognized as closely interrelated. Unfortunately, that recognition until recently was more theoretical than actual and plans had few legal consequences. The recent advent of statutes requiring state, regional and local planning and the formulation of the consistency requirement, have created planning law as distinguished from planning theory. Since one of the principal tenets of planning law is that planning should precede any and all land use regulations this chapter is strategically located as the first substantive chapter. Planning principles are discussed in subsequent chapters in relation to particular land use control devices.
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Chapter 9: Growth Management and Smart Growth Part 2 354 results (showing 5 best matches)
- As discussed above, impact fees have been formalized by express statutory authority in many Canadian jurisdictions. This allows such impact fees to be imposed and collected as part of the development process (usually either at subdivision or building permit issuance) where the owner has a right to develop under the current plan and land-use regulations. Where an owner has no right to use land for the intended purpose pursuant to the existing land-use regulations, such owner requires a zoning amendment, and at worst both a plan amendment and a zoning amendment. In either case, such acts are legislative and solely at the discretion of the planning and zoning authority. In Canada this will almost always be the elected local government to whom the province has delegated the power to enact bylaws establishing comprehensive plans and regulatory zoning regulations. It is not open to a court in Canada to compel by order the doing of a discretionary legislative act except where a... ...law...and
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Canada is a federal state in which all of the powers one would normally attribute to sovereignty are divided between the federal government on one hand, and the provincial governments on the other. This division of powers was originally effected by an Act of the Parliament of the United Kingdom and has, through successive Acts of the United Kingdom Parliament, and subsequent repatriation to Canada of those Acts in 1982 remained substantially unchanged. In this regard, “civil rights and property,” “local matters,” and “local government,” are all matters that fall within the jurisdiction of the provinces. As a result, except in respect of federal lands and undertakings, and in respect of subject matters exclusively assigned by the division of powers to the federal government, planning law and takings law is most actively engaged at the provincial level. The federal government most certainly has power of expropriation in respect of matters fully within federal constitutional competence...
- Thus, a mere reduction in the incidents of land ownership by land use regulation, in particular, the common law right to use property any way the owner wishes subject only to the law of nuisance (protection of the use and enjoyment of proximate land occupiers), and the conversion of such reduction by general land use regulation into an amorphous public benefit, does not constitute a taking.
- Ontario has chosen to impose a top down statutory model that places the Province itself in a pivotal role in the development of growth management strategies. This central role for the Provincial government reflects a long tradition in Ontario of local planning and land use regulations being subject to Provincial oversight in respect to the substance of local government exercise of planning and zoning powers. In Ontario, substantive elements of both planning and zoning regulation are subject to a Provincial tribunal (the Ontario Municipal Board) which has certain jurisdiction to examine and weigh the merit of planning and land use decisions made by elected councils of local governments. The role of the OMB in respect of its merit based oversight of local government action goes far beyond the normal judicial remedies (ultravires and procedural due process) to which superior courts are limited. In the tradition of such pivotal policy oversight in land use matters, it is no surprise...
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Table of Contents 210 results (showing 5 best matches)
- § 13:1 Agricultural Land and Land Use Planning and Development Regulation Law
- § 4:36 Conversion to Administrative Permission [Section Appears Only in Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012)]
- § 1:1 The Development of Land Use Planning and Control Law
- CHAPTER 1. AN INTRODUCTION TO LAND USE PLANNING AND CONTROL LAW
- § 1:4 Characteristics of Land Use Planning and Control Law
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Chapter 13: Agricultural Land Protection and Preservation 279 results (showing 5 best matches)
- § 13:1 Agricultural Land and Land Use Planning and Development Regulation Law
- § 13:1 Agricultural Land and Land Use Planning and Development Regulation Law
- A specifically required element of such a plan normally includes planning for agricultural lands and related activities. Florida’s Local Government Comprehensive Planning and Land Development Regulation Act provided from the beginning for a “future land use plan element designating proposed future general distribution, location, and extent of” agricultural uses as well as the requirement that each local government comprehensive plan contain an “open space element.”
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- The quest for farmland preservation must be balanced against the needs and demands of the non-farm public and against the direct and indirect social costs that any viable program will involve. A multitude of land use planning concepts is currently in vogue as potential “solutions” to the problem. They include zoning, cluster zoning, compensable regulation plans, negative easements and purchase of development rights, land banking, large lot zoning, open space zoning, planned unit developments, purchase and leaseback programs, agricultural service districts, transferable development rights, differential taxation, eminent domain, public rights of first refusal, and public and private land trusts.
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Chapter 2: Comprehensive Plans and the Planning Process 228 results (showing 5 best matches)
- Third, the planner acts as a catalyst in the political process by which plans and land use regulations are developed, adopted, and implemented by a local government such as a county or city. This catalytic role arises from the planner’s function as an analyst of conditions and trends in development or decline, and as a proponent of alternative means to guide the development, or redevelopment, of urban and rural areas. As the proponent of new regulations and of the plan, the planner exerts an influence through the legislative and administrative processes by which local governments plan for, and regulate, development.
- The growing importance of the comprehensive plan in local land-use decisions prompted urban planning practitioners and theorists to develop a theory of planning as a “rational process.” The rational, comprehensive planning process has four principal characteristics. First, it is establishing goals and objectives for future land use and development, which will be attained incrementally over time through regulations, individual decisions about zoning and rezoning, development approval or disapproval, and municipal expenditures for capital improvements such as road construction and the installation of municipal utilities.
- A slightly different approach to classifying states according to the status of comprehensive plans—or lack thereof—is found in the periodic review of comprehensive planning cases compiled by Edward J. Sullivan and published by the ‘These cases fall into three major categories. The first category, the ‘unitary view,’ reflects what still may be the majority rule, i.e., that there is no requirement for a plan that is separate from the zoning regulations and that any existing plan has no legal effect. The second category gives the plan some significance as a factor, but not the exclusive or even the most significant one, in evaluating land use regulations and actions. The weight to be given to the plan varies from state to state and from case to case. Finally, the third category comprises those cases in which the plan is described as a quasi-constitutional document that governs the regulatory ordinances and actions of the local government implementing the plan..” Sullivan, Recent
- A city plan is a master design for the physical development of the territory of the city. It constitutes a plan of the division of land between public and private uses, specifying the general location and extent of new public improvements, grounds and structures … and, in the case of private developments, the general distribution [of land areas] amongst various classes of uses, such as residential, business and industrial uses.
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
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Chapter 10: Constitutional Limitations on Land Use Controls Part 2 267 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- For more extensive discussion of compensation issues, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Ch. 16 (Practitioner’s Edition 3rd ed.2012).
- 883 F.2d 551, 555 (7th Cir. 1989). For list of other cases, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law §10.8 (Practitioner’s Edition 3rd ed.2012).
- 548 F.3d 1219, 1224 (9th Cir. 2008). A complete listing of cases can be found in the Practitioner’s Edition of this work: Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012).
- 89 Ohio St. 3d 121, 729 N.E.2d 349 (2000) (impact fees). A complete listing of cases can be found in the Practitioner’s Edition of this work: Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012).
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Chapter 3: Land Use Controls: History, Sources of Power, and Purposes 147 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Public and private land use controls have a long history in Anglo/American law, dating back to at least Elizabethan times. Modern public controls, our emphasis in this book, date back to the early 20th century. While zoning, the division of land into areas according to use, building height and bulk, remains the core tool of land use control, its inability to deal with the explosion of land use development which began in the last quarter of the 20th century and gradual recognition of the environmental effects of intense development led to the adoption of new controls and significant changes in zoning itself. Though this chapter focuses primarily on zoning, other land use controls are covered in other chapters, such as the planning process, building codes, subdivision control law, and growth management systems. These are often so intertwined with zoning that drawing a clear division between them is difficult. Thus, much of what is said here relates not solely to zoning but to the land
- A major effort to modernize the land development process at one fell swoop began in 1963 when the Ford Foundation financed an American Law Institute effort to develop a model code for land development. Completed in 1976, the Model Land Development Code (MLDC) deals with the physical development of land, so as to maximize social and economic objectives. The MLDC is based on the same assumptions underlying the Standard State Zoning Enabling Act, (SZEA) and its companion, the Standard City Planning Enabling Act (SPEA), which provides powers for planning, control of subdivisions, official maps and regional planning. These assumptions are, first, that government should control privately initiated development rather than be the primary development agency itself as it is in some countries, and, second, that local government should exercise most of the control.
- Land development, not planning, is the focus of the act. The position of the drafters was that comprehensive planning was desirable, but was beyond the scope of the MLDC. While the Code does not mandate planning, it encourages it by providing local governments with additional powers if a plan is adopted. Regulation of the state and regional effects of local development practices is a major component of the MLDC. In the more than twenty years that have passed since promulgation of the MLDC, there has been little in the way of direct adoption. Its greatest effect has been its approach to regional controls. Early on, Florida adopted Section 7 of the Model Code that deals with control over developments of regional impact and protection for areas of critical state concern. A few other states have enacted provisions dealing with specific areas that use the MLDC approach. and condemning exclusionary zoning.
- Donald G. Hagman and Julian Conrad Juergensmeyer, Urban Planning and Land Development Law (2d ed. 1986).
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Chapter 14: Nuisances 79 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- While comprehensive zoning has decreased reliance on nuisance law, it remains important. In the first place, some rural areas remain unzoned, leaving nuisance law as the only land use control available. Furthermore, nuisance law serves as a supplementary tool. If the local legislative body fails to deal with incompatible development through zoning, persons may seek protection through nuisance law. Finally, the common law of nuisance is a critical determinant in defining property for the purposes of constitutional protection and the need of government to pay compensation when it overregulates land use.
- Courts use nuisance law to resolve land use disputes by determining which use belongs in a neighborhood and which does not. Developed shortly after the Norman Conquest, nuisance law served for centuries as the primary device to regulate land use between neighbors. Today, many states define nuisance by statute, generally in terms not dissimilar to the common law. As a land use control device, nuisance law has its shortcomings. Sometimes labeled “judicial zoning,” decision making is ad hoc and after the fact, affording no advance notice to persons who wish to invest in land use activities that they will be safe from a nuisance action. By the early twentieth century, comprehensive legislative controls emerged in the belief that a more finely-tuned system was needed to accommodate disputes and provide advance notice to the community of how land would be used.
- Spur Industries, Inc. v. Del E. Webb Development Co.,
- The flip side of the question is whether mere evidence of a violation of a zoning ordinance is a nuisance per se. It is sometimes said that the legislature cannot declare an activity to be a nuisance that is not in fact a nuisance. Yet, it is a common practice of state and local legislatures to declare that the violation of a land use regulation, such as a zoning ordinance or building and safety code, constitutes a nuisance. For example, the Michigan enabling statute for municipal zoning provides that “* * * uses violating any provision of local ordinances or regulations * * * are nuisances per se.” the type of nuisance contemplated is a public nuisance and enforcement by private party requires proof of special damages.
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Chapter 6: Exclusionary and Inclusionary Zoning 165 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- The FHA has had a dramatic effect on local regulation of land use, giving courts the power to override many traditional zoning laws. One study found that those challenging local law under the FHA have won 90% of the cases.
- was the first to require that a municipality’s land use regulations provide a realistic opportunity for low and moderate income housing. In the early 1970s, Mt. Laurel Township, which lies seven miles from Camden and 10 miles from Philadelphia, presented the classic picture of a community practicing exclusionary zoning. The township was zoned for low density single-family housing (70%), industrial use (29%) and commercial use (1%). Sixty-five percent of the land was vacant. No land was zoned to permit multi-family housing or mobile homes.
- Salsich, Jr., Federal Influence on Local Land Use Regulations: the Fair Housing Act Amendments, 9 J. Aff. Housing & Community Dev. L. 228, 232 (2000), citing a study by the Judge David L. Bazelon Center for Mental Health Law in Washington, D.C.
- Courts may find a total exclusion of a nonresidential use arbitrary under particular circumstances. A total prohibition of outdoor theaters within a town village was found unreasonable where more than 57% of the land in the town was vacant, there was ample land for residential and industrial development, and the land surrounding the tract on which the challenger wished to build a theater was either unimproved or devoted to heavy industrial uses. A de facto total ban on fast food restaurants, engineered by creating a zone for such restaurants but not zoning any land for them, was also invalidated.
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Chapter 15: Private Land Use Controls 82 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Prior to the 20th century, privately created restrictions, along with nuisance law, dominated the control of land use. Public controls, which began at least as early as Elizabethan England, gradually came to the foreground, and now dominate. While overshadowed by zoning, private controls persisted. They were particularly important in the post-World War II development of large scale subdivisions, and have experienced resurgence in use in recent years with the increase in common interest communities. Private controls complement public controls in two areas: (1) as restrictions in traditional subdivisions and in planned communities to control use more stringently than zoning does, and (2) as methods used by private organizations and government to limit land use for various preservation purposes.
- Many preservation interests can be accomplished by private land restrictions. These include land preserved for agricultural use, historical sites, environmentally sensitive lands, wilderness, and open space for aesthetic purposes. In recent years, government agencies and private groups have used such restrictions to preserve more than four million acres of land.
- Several forms of controls, either singly or in combination, are available to control land use by private agreement: defeasible estates, easements, and promises respecting the use of the land. We will first examine the devices that may be used, and then turn to the public policy issues.
- Restrictive covenants may be used by a municipality to complement zoning ordinances and provide individualized treatment to an area for which a zoning change is sought. For example, a municipality may reclassify land to a less restricted use if the applicant for rezoning agrees to special limitations on the use of the rezoned property that are not imposed on other land included in the same classification. The municipality and the landowner will execute and record an agreement complying with the statute of frauds.
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Chapter 11: Regulation and Protection of Environmentally Sensitive Lands 199 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- , 332 F.3d 698 (9th Cir. 2001). For more cases, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law §11.4 (Practitioner’s Edition 3rd ed.2012).
- Although scarcely a concern before the 1960s, environmental aspects of land use control have become a primary consideration of land use planners. Even during the environmental renaissance of the 1960s, land use planning and control did not receive the attention focused on air and water pollution. Air and water were viewed as public trusts to be shared by all. Land was considered a matter of private property generally out of governmental reach. That attitude has changed markedly in the last several decades, nowhere more dramatically than in regard to environmentally related land use regulations.
- Flood plain mapping must occur before land use regulations can properly control development. Once mapped, the appropriate local or state authorities can apply specific zoning laws. Mapping reveals to these authorities, among other things, two flood plain areas of note for land use purposes; floodways and flood fringes. Floodways are the unobstructed stream channel and overbank areas where flooding is most common. Structural development of any sort is generally prohibited there. Flood fringes are adjacent to floodways and are subject to less flooding and less damage (or potential damage) when floods do occur. A variety of land uses are permitted in flood fringe areas provided precautions such as elevation are taken.
- Land use, be it agricultural, residential, commercial or industrial, urban or rural, refers to human uses of the land that alter the natural environment. Almost any use of land harms the natural ecosystem to some degree. Too much human activity in the wrong place destroys the ecosystem on which we depend to survive. The increase in land development and consequent loss of native plant and animal life and habitat over the past century has led to the adoption of federal and state laws to regulate, and in some instances prohibit, development where it would unduly threaten certain species or vital ecosystems.
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Chapter 5: Zoning Process: Obtaining or Resisting Development Permission Part 2 205 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- 21 P.3d 833 (Alaska 2001). For complete listing see §5.10 Practitioner’s Edition of this work: Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012).
- 289 Ala. 16, 265 So. 2d 564 (1972). For complete listing, see §5.9A Practitioner’s Edition of this work: Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012).
- See, e.g., Ariz. Rev. Stat. Ann. § 9–500.05. For a complete listing, see §5.31 in the Practitioner’s Edition of this work: Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012).
- Margolis v. District Court, In and For Arapahoe County,
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Chapter 16: The Power of Eminent Domain 55 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Eminent domain plays an important role in the implementation of land use planning objectives, particularly in the acquisition of land for urban renewal projects and industrial parks. States also employ eminent domain to acquire historic sites, and to purchase conservation easements for open space, scenic views, and agricultural preservation.
- homeowners challenged the taking of their property for inclusion in a 90 acre redevelopment project to aid the economically depressed city of New London, Connecticut. The plan, prepared by a private organization and funded by the state, called for a mixed-use development of public and private facilities. The city approved the plan and commenced property acquisition by purchase or eminent domain. Some property owners balked, claiming the taking was for a private use.
- and the Court sustained the city’s condemnation, finding that the redevelopment project was a public use within the meaning of the Fifth Amendment. In addition to numerous uses by the public, such as a Coast Guard museum, a walkway, and parking area, the city’s plan was designed to bring jobs to the city, generate tax revenue, help build momentum for downtown revitalization, and to create leisure and recreational opportunities on the waterfront and in the park. Promoting economic development was a traditional function government, and the Court saw “no principled way of distinguishing economic development from the other public purposes” it had approved over the years.
- Courts and commentators have long debated the relationship between the police power and the power of eminent domain. Most theoreticians see them as distinct. The police power is a power of regulation while the power of eminent domain is one of the taking, seizing, or conscription of private property for public use. Yet, the course of the law has been to merge or blur these regulatory and acquisitory powers.
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Chapter 12: Aesthetic Regulation and Historic Preservation 141 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- ‘Just what is “preservation law”? It is a collage, cutting across and drawing from several other established areas of law: land use and zoning, real property, taxation, local government, constitutional, and administrative. In many ways preservation law, particularly at the local level, is closest to land use and zoning; the rules are very similar. For example, the standards that dictate governmental behavior in enacting and administering zoning ordinances are virtually identical to those applicable to local landmark and historic district laws, and the constitutional doctrines governing regulation of private property are similar.
- that public safety, health, morality, peace and quiet, law and order—which are some of the more conspicuous examples of the traditional application of the police power—merely illustrate the scope of the power and do not limit it. He further observed that the concept of public welfare includes values which are “spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy.” the New York Court of Appeals determined that aesthetic purposes would support a restriction on the use of land. More recent cases extend legal support for the validity and necessity of aesthetic considerations in natural resource allocation and land use planning.
- See Regan, You Can’t Build That Here: The Constitutionality of Aesthetic Zoning and Architectural Review, 58 Fordham L. Rev. 1013, 1019 (1990); Weinberg, Zoning for Aesthetics—Who Decides What Your House Will Look Like?, 28 Zoning & Plan. L. Rep. No. 9 (Oct. 2005); American Planning Association, Planning Advisory Service and Lane Kendig, Too Big Boring or Ugly: Planning and Design Tools to Combat Monotony, The Too-Big House, And Teardowns, (PAS Report 528, 2004); Garvin and Leroy, Design Guidelines: The Law of Aesthetic Controls, 55 Land Use L. & Zoning Dig. 3 (Apr. 2003).
- In land use control lore, an aesthetic control attempts to preserve or improve the beauty of an area. All zoning is to a certain extent based on the desire for beauty. Some of this country’s first planning efforts arose from what was called the “city beautiful” movement. validated zoning as a reasonable exercise of the police power, taking the view that law must respond to the changing demands and needs of urban areas. After and until 1954, however, aesthetics alone was not considered a valid purpose for land use measures. Courts required that such measures be coupled with more traditional grounds to be sustained.
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Chapter 8: Building and Development Codes 113 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- Building and housing codes have existed for centuries but most of the evolution of the codes has occurred in recent years. Traditionally they were not treated as land use control devices because land use controls are focused on land, and the relationship between buildings and land. Building and housing codes, on the other hand, deal with matters of construction and maintenance. Currently, however, the building permit and certificate of occupancy stages of development have become the focal points for many growth management and infrastructure funding regulations thereby bringing at least that aspect of building codes into the mainstream of land use regulation. Furthermore, the increasing popularity and importance of “green” codes and “smart” codes make building and development codes a major focal point for encouraging or requiring new development to be sensitive and responsive to the principles of new urbanism and smart growth.
- The role of the Smart Code is not just to supplement conventional zoning and subdivision regulations, as is often the case with green codes, but to replace them with a very different approach to land use planning and regulation. As Duany has stated, “our current codes are based on a theory of urbanism that is decidedly anti-urban. They separate land uses, decrease densities, and increase the amount of land devoted to car travel, prohibiting the kind of urbanism that typifies our most beloved urban places.”
- Another land use control aspect of building codes is the requirement frequently contained in them for building permits and certificates of occupancy. The issuance of a building permit is usually the last point at which the local government can exercise leverage regarding the type of development that will be permitted on the land, and the certificate of occupancy is the last permission needed to use the new improvements. Consequently, land use control authorities use these permits to check compliance with various land use controls. Local governments can also use the issuance of these permits as the point at which to assess and collect payments for capital facilities required to service the new development.
- For a discussion of the interaction between California’s Uniform Building Code and its State Historical Building Code, see Daniel Curtin & Cecily Talbert, California Land Use and Planning Law 227 (26th ed 2006). See also §§ 12:1 et seq., infra.
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Chapter 4: Zoning Basics Part 2 110 results (showing 5 best matches)
- For more detailed discussion and more extensive citations of authority of the issues covered in this chapter, see Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law, Practitioner Treatise Series (3rd ed. 2012).
- See Ohm, Reforming Land Planning Legislation at the Dawn of the 21st Century: The Emerging Influence of Smart Growth and Livable Communities, 32 Urb. Law. 181 (2000); Haar, The Twilight of Land-Use Controls: A Paradigm Shift?, 30 U. Rich. L. Rev. 1011 (1996); Krasnowiecki, Abolish Zoning, 31 Syracuse L. Rev. 719 (1980). See also supra § 3.1.
- Earlier cases upholding retroactive applications of zoning-like regulations which terminated preexisting uses dealt with land uses that had nuisance or near-nuisance features. See, e.g.,
- See, generally, Garvin and LeRoy, Design Guidelines: The Law of Aesthetic Controls, 55 Land Use Law & Zoning Dig. 3 (Apr. 2003).
- See Pearlman, Zoning and the Location of Religious Establishments, 31 Cath. Law. 314 (1988); Rice, Re-evaluating the Balance Between Zoning Regulations and Religious and Educational Uses, 8 Pace L. Rev 1 (1988).
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Chapter 4: Zoning Basics 296 results (showing 5 best matches)
- § 4:36 Conversion to Administrative Permission [Section Appears Only in Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law (3rd ed.2012)]
- The supremacy clause of the constitution prevents the application of state or local zoning laws to federally operated land uses. Federal regulatory schemes also may preempt local law. The federal government, of course, can consent to be governed by local law. Where it recognizes the desirability of some local control, it generally does so by directing federal agencies to consult with local authorities. The agency, though, retains final decisionmaking power. Federal urban land use policy, for example, requires that agencies cooperate with local authorities by directing that actions taken “shall be consistent with zoning and land use practices and with the planning and development objectives of local governments and planning agencies.”
- The phrase “highest zone” is not the equivalent of the common appraisal phrase, “the highest and best use of land,” where it means the use that will confer the highest market value on the land. It refers instead to society’s value of the use from a broad perspective. Land zoned for single-family use generally will have a lower value than if zoned for more intensive uses. An argument that property should be rezoned from residential to commercial because commercial use is the highest and best use of land may be considered as a factor in the rezoning request, but it is by no means determinative, and usually is not persuasive. Planning and zoning focus on the appropriate use of the land for the community and are concerned with many factors beyond maximizing the market value for each parcel.
- Indeed, the act still is used in a number of states albeit significantly augmented by other legislation. While enabling acts and codes have had to respond to new development pressures in ways not envisioned in the 1920s, the kinds of regulations authorized by the Act still constitute the basic approach to controlling land use.
- Interim zoning is vital in preserving the integrity of the planning and zoning processes. Without a moratorium on development, building activity may occur that will defeat the plan’s purposes before it is enacted. The publicity that will necessarily be a part of the planning process may in fact trigger a race by developers to build or at least achieve a vested right to build before new controls, which they fear may be more intrusive than current ones, are adopted. Interim zoning is controversial since, to be effective, it must be enacted without the usual notice and hearing that accompany the adoption of land use controls. Still, authority to enact interim controls is often express.
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Chapter 9: Growth Management and Smart Growth 312 results (showing 5 best matches)
- While the terms “sustainable” and “development” each have a variety of meanings alone, together they are apt to suggest many varying ideas to the people who employ them. Thus, the implementation of sustainable development initiatives is problematic. Nonetheless, the concept is increasingly a subject of intense discussion among policymakers and community groups, and is likely to remain an issue in land use planning in the 21st century, and thus to become an additional concern for land use planning and control law, particularly in the area of growth management.
- (1) Regulation should respond to specific development proposals: The policy that the formulation of land use controls should be delayed until the developer’s intentions are known has been reflected in the weakening of legal support for the principle that a developer should be entitled to develop if his proposal is consistent with pre-established regulations adopted pursuant to a comprehensive plan.
- Oregon was the first state to adopt comprehensive growth management legislation. Passed in 1973, the Oregon Land Use Act requires all local governments to formulate a comprehensive plan, requires that all land use decisions by these local governments be consistent with their comprehensive plans, mandates state review of these comprehensive plans and, if necessary, enforcement against non-compliant local governments, and sets up an appeals system. Additionally, the act created the Land Conservation and Development Commission (“LCDC”), a commission created for the purpose of determining whether locally prepared plans are consistent with the state’s planning goals. LCDC has adopted 19 goals and guidelines for planning, including goal 14, which is urbanization. Goal 14’s stated purpose is “to provide for an orderly and efficient transition from rural to urban land use.” ...urban growth boundaries. These urban growth boundaries determine which areas can be developed for urban uses...
- Growth management regulation in California has been more at the local government and regional entities level than at the state level. Though state law requires every city and county to develop a comprehensive plan addressing seven elements—land use, circulation, housing, conservation, open space, noise, and safety—the law is not adequately enforced and, in 2000, over 175 cities and 26 counties were found to be out of compliance with it. Additionally, unlike states such as Florida and Colorado, the state’s planning office does not provide any financial or technical help to local governments in formulating a comprehensive plan. Finally, the state itself does not have a comprehensive state plan. State agencies are excused from compliance with local government comprehensive plans and each agency is given leeway to develop its own “functional plan,” that agency’s plan for future development, which does not have to be consistent with plans from other state agencies.
- The first major victory before the courts for pro-growth management forces occurred in litigation contesting the phased growth plan developed by Ramapo, New York. This plan used a residential development timing technique for the avowed purpose of eliminating premature subdivision, urban sprawl, and development without adequate municipal facilities and services. The plan did not rezone or reclassify any land into different residential or use districts but provided that any person engaged in residential development must obtain a special permit.
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Chapter 5: Zoning Process: Obtaining or Resisting Development Permission 276 results (showing 5 best matches)
- Mediation is useful where zoning authorities have discretion in dealing with land development requests. With the flexible zoning employed today in special use permitting, conditional zoning, and planned unit developments, that discretion often exists. If, however, an all or nothing decision faces the government and there is no room for the parties to suggest a compromise, mediation will not work. If, for example, state law requires that a use variance be based on a finding that the present zoning of the land will not yield a reasonable return and, if the board cannot make that finding, no amount of negotiation will matter.
- The idea of a “development agreement ordinance” is oxymoronic under the view of early decisions that condemned contract zoning. Yet, times have changed, and, as with the trend to accept conditional zoning, legislatures and courts increasingly accept development agreements as legitimate planning tools. The development agreement idea, however, is not entirely new. In some jurisdictions, annexation agreements have been used to achieve planning objectives. The development agreement also finds support in the vested rights statutes that confer immunity from zoning changes for a fixed period. While those statutes may not refer to an “agreement” being made, the legislatures that passed them likely understood that a city would engage in some form of bargaining or negotiation before it approved a plan that it knew would freeze development rights on the parcel.
- A limitation on the number of employees might be valid if related to land use problems such as traffic and parking, but to condition a laundromat by requiring the constant presence of an attendant has been held invalid on the ground that such a regulation is not a zoning matter. The power cannot be used to exact land for public use if no nexus exists between the burden the community must bear from the use allowed by the variance and the land exacted.
- The injunction may also be used where enforcement of the ordinance will result in irreparable damage, such as the threat of being jailed or fined. The injunction can also be used to challenge the constitutionality of the ordinance as applied, or to challenge a development order as being inconsistent with the land use plan. Where there is an adequate remedy at law by a certiorari petition to review an administrative decision, an injunction is not proper.
- Another constitutional problem may arise with conditions or exactions that are a part of the agreement. If the agreement contains a provision that a developer will agree to deed land to the government or pay impact fees to support infrastructure needs, it is not clear whether the constitutional nexus test applies. If the agreement is viewed purely as a police power measure, the test should apply, but it should not apply if the contractual aspects control. If the nexus test does not apply, and the government can bargain well, the government may obtain exactions it could not constitutionally impose by regulation. In enforcing settlement agreements, there is support for using contract theory.
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Chapter 10: Constitutional Limitations on Land Use Controls 254 results (showing 5 best matches)
- With the pro-free market, anti-regulation attitude of the Supreme Court in the 1920s, it is tempting to think that was the norm and the anomaly. But, in the land use area that was not the case. In three other cases in the late 1920s, the Court used deferential test to sustain land use controls in as-applied, substantive due process challenges. Court set the stage for relaxed due process review of land use controls, it left the development of constitutional land use law to the state courts during the next half-century. In the 1970s the Supreme Court reentered the land use field.
- The future of compensation laws is uncertain. Their effect on the efficacy of land use planning, on the government treasury, and on the perceived fairness to noncompensated neighbors remains to be seen. Their one-sided nature is disheartening. While they proceed from the belief that judicially-developed takings law underprotects the property owner, compensation laws, which government will likely waive rather than pay due to inadequate financial resources to pay, may underprotect the neighbors of the now-unregulated property owner and the public. An arguable deficiency with these efforts to treat property owners more fairly is the notable omission of any effort to recapture for the public the windfall gains conferred on landowners by virtue of public improvements and government regulation. We discuss the windfalls and wipeouts dilemma of land use regulation in Chapter 3 and commend it to you at this point.
- may depend upon whether one must show a deprivation of all economically viable use or of all value. A regulation, for example, might prohibit all developmental use of land but not deprive the land of all value. The problem lies in whether, when, and how to distinguish between “use” and “value,” concepts that are so closely intertwined. Courts, including the Supreme Court in have used the terms interchangeably in takings cases. Court also assumed the land to be valueless. In
- Compensation bills have been introduced in many states over the past two decades, but have passed in only a few. These bills generally require that compensation be paid when property owners suffer any, or a specific percentage of, diminished value as a result of government regulation. By initiative in 2004, voters in Oregon enacted the most extreme version of such a statute. Known as Measure 37, the act requires compensation for the enforcement of a land use regulation that has the effect of causing any reduction in value. Government can opt to waive the law rather than pay. The state supreme court upheld the law in 2007. Then, the people, having second thoughts, enacted Measure 49, significantly modifying Measure 37. Measure 49 allows rural landowners to build one to 10 houses under various scenarios, but, prohibits larger subdivisions and commercial and industrial development. Section 197.352 (1) now provides that “[i]f a public entity enacts one or more land use regulations that
- of great significance to land use regulations. Interpreted literally, raised the specter that conditions imposed in the permitting process that resulted in physical occupations, such as subdivision exactions of land for schools or roads, were per se takings. A straightforward application of the without further inquiry, but the Court said that requiring the easement as a condition for issuing a land use permit would avoid the conclusion that a taking had occurred if the state could show that a nexus existed between the effects of the landowner’s proposed development and the land that was being exacted for easement use. but the principle rescued many land use controls.
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Dedication 4 results
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law and Dean Emeritus,
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Yale Law School
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- Publication Date: January 23rd, 2013
- ISBN: 9780314286475
- Subject: Land Use
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This Hornbook introduces the fundamentals of land use planning and control law. Subjects covered include the planning process, zoning, development permission, subdivision control law, and building and housing codes. Discusses constitutional limitations and the environmental aspects of land use controls. Explores aesthetic regulation, historic preservation, and agricultural land protection.