Land Use Law in a Nutshell
Authors:
Nolon, John R. / Salkin, Patricia E.
Edition:
2nd
Copyright Date:
2017
22 chapters
have results for Land Use in a Nutshell
Preface 6 results (showing 5 best matches)
- Land use law continued its evolution in the second half of the twentieth century; its objectives broadened significantly as society demanded that it do more and more. We begin this story with housing and urban redevelopment in the 1950s, follow its evolution in cities and developing suburbs to the present; we then turn to the advent of local environmental law as a complement to local land use law, and continue with the important issues of aesthetic, historic, and cultural interest protection. The Nutshell winds down with a review. By looking at how land use laws can be initiated, amended, or overturned by the people, how stakeholders can aid land use agencies in preventing and mediating land use disputes, and how the courts review and rule on land use decisions, the student is able to revisit the workings of the system in full. The Nutshell ends in the present, with a discussion of emerging issues, including disaster mitigation, energy conservation, and environmental justice. To aid...
- Land Use in a Nutshell
- This summary and exploration of land use law is written with great respect for the relevance, breadth, and complexity of the subject matter. There are nearly a dozen law school casebooks on land use law; they contain over 10,000 pages of cases, commentaries, notes, and problems. Predictably—with such a vast and important subject—the content of these books is intricately varied and diverse. In a nutshell, writing briefly and simply about this mystifying subject is a challenge.
- We begin the story with a brief history of the common law origins of land use law which demonstrates the firm foundation upon which today’s public system of land use regulation rests. Many of our contemporary land use laws borrow liberally from the common law and seek to accomplish the same objectives, but in a more complex, challenged, and populated society. The cases teach that the comprehensive, or master, plan is the predicate for zoning and other land use regulations, so that topic comes next. Zoning—America’s unique adaptation—follows planning, as it should in practice, but also because it was the principal technique employed to replace common law controls and the first to aspire to the realization of safe and livable communities and landscapes. Chronologically, subdivision and site plan regulations were next on the scene, so they follow zoning in these pages as they did in the relatively rapid development of the modern land use system in the twentieth century.
- We struggled with the issue of where to discuss the controversial subject of regulatory takings and its less idiosyncratic constitutional sibling, due process. Because the cases that establish these relevant Fifth Amendment doctrines implicate the full range of land use practice, we decided to place them after discussing the basic land use regulations and then to follow that presentation with other constitutional and statutory limits on land use power. The student’s knowledge of the basic land use system and its intricate operations is deepened, we believe, by studying the legal limits placed on land use controls; that study teaches the complete system, what can go wrong in its operations, and how to prevent successful challenges. This prepares them for what comes next.
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Chapter 11 Initiatives, Referenda, Mediation, and Judicial Review 58 results (showing 5 best matches)
- Mediation has been used in recent years as a method of building consensus regarding public policies and formulating land use plans and regulations. In this context, mediation techniques assist parties with disparate interests to participate in a productive public decision-making process. In the land use field, this can involve the development of a comprehensive land use plan, the scope of an environmental impact study of a proposed project, determining how to rezone a community or a neighborhood, and coming to an agreement regarding specific development proposals advanced by a land developer during the permit issuance process.
- Local citizens have an opportunity to review land use decisions and even to initiate land use proposals under the law in several states. “Consent requirements” refer to state or local laws that prohibit land use decisions from going into effect unless they are consented to by the affected neighbors or parties. “Initiative provisions” allow local voters to enact land use laws themselves, and “referendum requirements” either allow or require certain land use decisions adopted by the local legislature to be subject to voter approval at the polls.
- The Consensus Building Institute (CBI) and the Lincoln Institute of Land Policy undertook a study in 1999 of mediated land use disputes based on interviews with participants in 100 cases in which a professional neutral assisted in the resolution of a land use dispute. This study indicated that 85 percent of participants had a positive view of assisted negotiation. Additionally, of respondents who participated in cases that were settled, 92 percent believed that their own interests were well served by the settlement and 86 percent believed that all parties’ interests were served by the agreement reached.
- Land use mediation of various types is authorized by statute in about two dozen states. Mediation may be authorized for very specific issues such as regional impact development projects, border disputes between local governments, or decisions on land use applications. The point at which mediation is encouraged or required varies under these laws from early in the development approval process until after a project decision is made and litigation has been initiated. At least twelve states offer some type of mediation or dispute resolution services to assist parties in the land use context. Some state mediation statutes use the word mediation but describe a process that it is not completely voluntary and is more akin to arbitration. About half of the statutes are directed to the resolution of a specific type of issue, an example being reuse of a military base. Fourteen states authorize mediation for regional planning disputes.
- One practical consequence of judicial deference to local legislative acts is that the legislature does not have to conduct detailed studies regarding the adoption of or change in land use laws, put facts supporting such matters on the record, or conduct an adjudicatory hearing on the law’s adoption or change. This is the case in all states regarding the adoption of broadly applicable land use regulations. Courts in a few states, however, regard some land use law changes as adjudicatory in nature, rather than legislative, and as a consequence place a burden of proving the need for the change on the legislature. In , the Oregon court recognized that most jurisdictions regard the adoption and amendment of the zoning ordinance to be a legislative act and entitled to presumptive validity. In the court reviewed a rezoning of land to a different use to be quasi-judicial in nature—a matter requiring the collection and analysis of facts in adjudicatory hearings—rather than legislative. This...
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Chapter 3 Zoning Districts and the Separation of Land Uses 88 results (showing 5 best matches)
- In addition to permitting certain land uses in zoning districts, the zoning law authorizes other uses to be made of the land, but only if landowners desiring to dedicate their land to a stipulated use receive a special—or conditional—use permit issued from a local administrative agency. Typical land uses that are permitted by special or conditional permits include religious institutions, nursing homes, and day care centers. In most states, when such uses are listed as specially permitted uses in the zoning law, they are declared by the local legislature to be uses that are harmonious with uses, with the recognition that, in a specific location, they can negatively impact adjacent properties and may need to be limited or conditioned to mitigate such impacts. If an applicant for a special use permit can demonstrate conclusively that no such impacts will result, or that the proposal mitigates those impacts effectively, the special use permit will usually be granted. There is a...
- The U.S. Supreme Court disagreed. In 1926, it handed down its decision in holding that the separation of land uses among zoning districts accomplished a legitimate public purpose, using nuisance limitations on private property use as an analogous doctrine. The Court reasoned that the effect of zoning was to create land use standards that protected neighbors from nuisance-like uses of nearby land. In technical terms, the due process clause of the Fifth Amendment was not violated because use separation was a reasonable method of protecting the public interest. Thereafter, establishing zoning districts that carefully prescribed land uses within each zone became the principal method of controlling private land use in the interest of building safe and economically efficient communities. Following this decision, the adoption of uniform building and use standards within various land use districts became known as “Euclidian Zoning.”
- Within each zoning district, each parcel of land is assigned at least one land use. The
- Generally, zoning laws state that lot owners may use their land for a permitted principal use and for activities that are accessory to that use. Accessory uses are uses of land that are found on the same lot as the principal use and that are subordinate, incidental to, and customarily found in connection with the principal use. For example, a garage may be accessory to the residential use of a property because it is customarily found in connection with, and is incidental and subordinate to, the principal residential use.
- In most municipalities, the most critical land use decisions are made by the legislative body which adopts and amends the zoning law and other land use regulations and decides which other land use boards and agencies to establish. Occasionally, local legislatures determine that their existing land use controls are incomplete or out-of-date. In some states, they may adopt a moratorium on development until the local legislature adopts regulations to meet new challenges.
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Chapter 1 Introduction and Common Law Origins 72 results (showing 5 best matches)
- The Restatement of Torts defines a private nuisance as a nontrespassory invasion of another’s interest in the private use and enjoyment of land. When one property owner brings a nuisance action against another, she is attempting to control land use through a civil action. Only those significantly affected by the nuisance have standing to bring the action, and the court is interested only in balancing and ordering the equities between the plaintiff and defendant. The Restatement’s general rule of nuisance law indicates that a landowner is subject to a nuisance action for a land use—such as operating a pig farm—if that land use is “unreasonable.” Whether a use is unreasonable depends upon a number of factors. To help courts determine reasonableness, the Restatement uses a number of tests including the suitability of the activity on the land to the character of the place, the value to society of the alleged nuisance, and the hardship on the defendant of an injunction or damage award....
- The nation’s first comprehensive zoning ordinance was adopted by New York City in 1916. As happened in England after the great fire of 1666, the march of unwanted land uses uptown precipitated a crisis leading to the creation of a commission that recommended stricter land use controls to protect the city’s economy, private property values, and public health and safety. The resulting zoning law divided the city into multiple land use districts, or zones. These districts allowed private landowners to use their land only for the purposes permitted in the applicable district. This protected Fifth Avenue retailers, for example, from the incursion of garment factories—an industrial use—in that retail zone.
- Euclid, Ohio, is a suburb of Cleveland. At the time Euclid adopted zoning, it was in the path of development moving outward from the metropolitan area. The Supreme Court in understood that there was a certain similarity between judicial policies observable in the common law of nuisance and land use law, or zoning. The context surrounding a particular land use matters in determining whether the use is a nuisance or is reasonably restricted by land use laws. This is a matter of reasonableness. We do not want pigs in parlors, but can abide them on the farm.
- Easements, too, are described by courts in various ways. They may be affirmative or negative, in gross or appurtenant. An affirmative easement gives the third party the right to enter the burdened parcel. A negative easement restricts the use of the burdened parcel giving the owner of the benefited land the right to ask for an injunction or damages. A negative easement is more properly called a restrictive covenant, since it manifests an agreement, or covenant, to restrict the use of the servient tenement. Easements that are in gross benefit their owner personally, rather than as the owner of a parcel of land. If A buys the right to cross O’s land to get to the fishing hole so A can fish, the affirmative easement over O’s land is “in gross,” not attached to, or appurtenant to, any land that A owns. Easements in gross normally are not assignable: the affirmative easement to get to the fishing hole may not be transferred, for example, from A to B. This is not the case if the easement
- Historically, the powerful right of individuals to use their land under the common law was balanced to a degree by the doctrine of nuisance, which established that private landowners may not use their property in a way that is injurious to property held by others. Private nuisance actions originated in the twelfth century, in the assize of nuisance which was replaced in the fifteenth century by an action on the case for nuisance. Nuisance remedies were limited, by and large, to injunctions and damages awarded to owners or occupants of adjacent land who could prove substantial injuries. Offensive intrusions included the effects of smoke, dust, noise, odors, heat, or other discernable effects that interfered with or diminished the normal uses of nearby property. Nuisance rules limiting injurious land uses evolved slowly and only in response to one private party’s dispute against another.
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Chapter 6 Other Constitutional and Statutory Limits on Land Use Regulation 60 results (showing 5 best matches)
- In addition to federal and state constitutional constraints on local control of land use, a number of federal and state statutes have been enacted since the 1980s that either limit or preempt local control in the areas of religious land uses, housing, and telecommunications. This chapter begins with a discussion of issues that arise when land use decision-making intersects with the First Amendment in the regulation of adult business uses and signs and billboards. This is followed by a discussion of federal statutes including: the Religious Land Use and Institutionalized Persons Act, which limits governments’ ability to restrict religious uses; the Americans with Disabilities Act and its applicability to local land use decision-making; the Federal Fair Housing Act Amendments of 1988, which impact how local governments can regulate in the area of group homes and certain other housing related issues; and the Telecommunications Act of 1996, which narrows local governments’ ability to...
- In general, our federal system permits individual communities to define their own specific community development goals, and to employ various land use planning and land use control tools allowing them to achieve their individual notions of the “public good.” As a result, when Congress restricts the ability of local governments to make certain land use decisions, the federal influence on state and local land use planning and zoning authority becomes most apparent.
- There are a number of reasons why the federal and state governments have inserted themselves into what has traditionally been a local land use process. Among these are the inability of many local officials to effectively respond to the concerns of the community that amount to NIMBY (Not In My Back Yard) for uses often believed to be LULUs (Locally Unwanted Land Uses) and the attitudes of those in the community who take a BANANA (Build Absolutely Nothing Anywhere Near Anyone) perspective on future development around them. Perhaps it is because too many local officials adopted a NIMTOO (Not In My Term of Office) approach to land use planning and zoning decisions that advocacy organizations and business organizations were successful in convincing Congress to enact strong federal legislation designed to limit local control over the siting of certain types of land uses.
- The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000 seq., adopted in 2000, prohibits government from taking action that will create a “substantial burden” on the right of an individual to exercise religion freely, absent a showing that the action is the “least restrictive means” of furthering a “compelling government interest.” By its terms, RLUIPA only applies where a substantial burden is imposed: (1) in connection with a federally-funded activity; (2) where the burden affects interstate commerce; or, (3) with respect to land use decisions, where the burden is imposed in the context of a scheme whereby the government makes “individualized assessments” regarding the property involved. The general prohibition prevents governments from implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless it can be demonstrated that the action is the...a
- Oregon has used its legislative power to regulate land use planning on a statewide scale. The state has enacted legislation to implement statewide comprehensive land use planning coordination. To supervise this program, the Land Conservation and Development Commission (LCDC) was established and vested with certain duties and powers. Specifically, the agency is required to adopt statewide land use planning goals to facilitate the statute’s overall mission. Each municipality in the state is required to exercise its land use powers in accordance with the articulated statewide goals. The statute also requires the LCDC to certify that the local plans are in compliance with the goals. In ...concluded that the LCDC could review a zoning map for Jackson County to ensure that it was consistent with relevant statutory requirements, and the state’s planning goals as articulated by the LCDC. However, the court stressed that proposed amendments to plans, which have already been acknowledged...
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Chapter 2 Land Use Plans and the Planning Process 64 results (showing 5 best matches)
- As the land use system evolved, basic concepts were left undefined, including the definition of a comprehensive land use plan. The document itself has been referred to as, among other things, a master plan, a comprehensive plan, a comprehensive master plan, a land use plan, a comprehensive land use plan, a local land development plan, local general plan, and an official master plan. There was no clear agreement as to whether this document should limit itself to physical phenomena, or should include economic, demographic, and social matters. What is meant by comprehensive itself is unclear. Most definitions presuppose a local focus, but some include regional and statewide considerations. The precise relationship of the comprehensive land use plan with the zoning ordinance, the zoning map, and the official map was never entirely agreed upon. The elements of a plan—that is, the subjects to be covered in it—have been described in numerous ways as well.
- While there is no federal land use plan per se, over time the federal government has assumed an increasing role in the area of land use planning and reform by influencing state and local land use decisions through myriad regulations, funding programs, and other agency-level technical assistance programs. Although the federal government’s efforts lack coordination among the various agencies and programs, major programs have been legislated that do require certain land use planning actions by states including the Coastal Zone Management Act and the Disaster Mitigation Act. In addition, as will be discussed in Chapter VI, the federal government has enacted a series of statutes influencing certain local land use decision-making in areas involving fair housing, accommodations for the disabled, religious uses, and telecommunications.
- Zoning and other land use controls are the legal tools that implement the land use plan. Zoning addresses, among other things, the dimensional aspects of land use (e.g., height, bulk, and density) and the allowable uses of land in various locations (e.g., residential, industrial, business, and agricultural). A local zoning law may address controversial community development issues, such as the location of adult businesses, telecommunication facilities, and group homes. State statutes usually require that local zoning laws be consistent with the local land use plan. This creates a dynamic synergy between the plan and the law. In addition to zoning laws, other regulatory controls such as subdivision laws and site plan laws address more specific design and infrastructure details for proposed land development projects. These laws, too, should be consistent with the plan. Constitutional and other legal requirements that ensure land use plans and laws will not result in discrimination or...
- There is a growing recognition across the country that the impacts of local land use decisions know no political boundaries. As a result, states have adopted various approaches to addressing significant land use concerns in a more regional context. In some states, such as Maryland, the county has the authority to develop land use plans. In other states, such as New Jersey and New York, sub-county governments, such as cities, towns/townships, boroughs, and villages, are vested with this authority. Statutory schemes often trigger notice and referral requirements to county and regional planning boards for certain local land use actions, but these referrals are usually more for informational purposes and input rather than for permission to proceed.
- Lawyers must be aware of the various ethical issues that may arise when they function both as legal counsel to land use decision-making bodies and when they serve as members of local bodies authorized to make land use decisions. For example, a conflict of interest may arise where a lawyer serves on a planning commission and a potential applicant attempts to retain the lawyer on non-land use matters. The appearance is that the lawyer is being retained to curry favor on future land use matters. In other situations, lawyers in private practice who represent local planning or zoning boards may find themselves with a conflict when they no longer represent the municipality but rather have new clients who desire building permits, site plan review, or other zoning approvals from the locality. Law firms may be ethically prohibited from the subsequent representation.
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Chapter 12 Critical Contemporary Land Use Issues 52 results (showing 5 best matches)
- Land use law is an evolving field that both influences, and is influenced by, cutting edge societal issues. For example, in the context of the recent devastation in New Orleans and the Mississippi Delta caused by Hurricane Katrina, a number of land use issues have emerged front and center in the debate including: what uses should be allowed to be developed in hurricane-prone and flood-prone areas; if rebuilding in certain areas is not allowed, would this amount to a taking requiring compensation; and what types of land use controls are appropriate to protect the public health, safety and welfare in these areas. The regulation of land use in the area of disaster mitigation is receiving growing attention given other recent challenges from wild fires in the West and Southeast, and from earthquakes and other natural disasters that impact public safety.
- Focusing on the legal strategies, the LAND Code attempts to guide local law-makers who desire to change zoning codes and laws to encourage more environmentally responsible land use, and it includes strategies for developers who, in the absences of local regulations, desire to protect the environment through conservation subdivisions and green design. The Code begins by recommending that localities conduct an audit of current conditions and then conduct a build-out analysis to determine what the municipality would like if all the land were to be developed as currently zoned. After making any necessary revisions to the comprehensive land use plan, the Code recommends a series of zoning strategies to make land use regulations more environmentally friendly including the use of: incentive zoning, performance zoning, overlay zoning, cluster development, and planned unit development. Other recommendations and strategies include: requiring environmental impact statements for all development...
- In addition, land use regulation is being used to facilitate the use of alternative energy sources, such as the siting of wind farms. Land use regulations are also being employed to promote green development, and as a technique to address environmental justice issues. With technological advances in the field, including geographic information systems, lawyers, planners, and the public now have ready access through state-of-the-art technology to current and accurate data to better inform decision-making. All of these issues are addressed in this chapter, which focuses on the application of land use law to emerging issues.
- A 2002 report by the National Academy for Public Administration (NAPA) asserts that there is a critical intersection between environmental justice and local land use planning (See ). Through such planning, communities are engaged in a siting process for locally unwanted land uses. It is not uncommon for underrepresented groups and communities to be disproportionately impacted by these decisions, as well as to lack meaningful opportunities for participation in the process. The NAPA Report discusses how the comprehensive planning process can be used to address equity in siting issues, and how effective public participation can be utilized as part of an appropriate planning process. Incompatible uses near low-income and minority residential communities can only be identified as nonconforming uses as zoning laws are updated, but communities can go further to amortize land uses that may cause public health challenges. Better coordination between zoning and environmental review, and...
- The use of GIS for land use decision-making will undoubtedly continue to increase at the local level. An emerging body of statutory and caselaw will define the parameters of the use of this important land use technology.
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Appendix An Internet Guide to Land Use Research 47 results (showing 5 best matches)
- With all of the above disclaimers, the Internet remains a valuable legal research tool for land use practitioners, and it provides a wealth of information for course papers. This chapter is intended to interest the reader in exploring some of the sites dedicated to land use. It is by no means a comprehensive review of what is out there (after all, that changes daily). The sites suggested are well established sites that are currently operational and routinely updated by the hosts. The sites reviewed are organized into several major categories: 1) Comprehensive Sites—or sites that focus on land use law with links to other major land use law resources online; 2) Government Sponsored Sites—these are websites hosted by government agencies that contain a significant amount of land use law information; 3) sites where a significant number of land use codes can be accessed; 4) sites sponsored by non-profit organizations involved in various aspects of land use law; and 5) miscellaneous sites...
- provides online access to dozens of land use law articles and publications written by faculty, staff, and students on a variety of topics including ethics in land use, eminent domain, housing, planning and zoning for an aging population, and trends in the courts. The site is organized topically and land use law related documents can be found under the land use, ethics, environment, and municipal law headings.
- Send us your favorite land use website for the next edition of this Nutshell. We can be reached at jnolon@law.pace.edu or psalkin@tourolaw.edu Happy surfing!
- Local governments are increasingly offering a web-based presence to post otherwise difficult to access public information including zoning ordinances and land use laws. The availability of these ordinances online can assist land use law students in a number of ways. They provide an opportunity to actually see how various provisions are drafted and how they work in practice. It is one thing to read a case about non-conforming uses, but it is another thing to actually read a working provision in a current zoning ordinance, and to be able to compare and contrast different approaches to nonconforming uses in different zoning laws.
- In conducting land use law research on the Internet, one effective strategy is to simply enter a search term to see to what sites the search engine directs the user. For example, if your community wants to fight the siting of a big box development, simply search for “big box retail” and hundreds of articles, publications, and organizational websites will appear with valuable information from case studies to speakers to model zoning language. The following sites offer examples of online information in the area of sign and billboard regulation, the leading land use and property discussion forum via list serv, zoning and religious land uses, fair housing, and historic preservation. There are hundreds of sites on these and other land use planning and zoning topics.
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Chapter 8 Housing and Urban Redevelopment 69 results (showing 5 best matches)
- Urban redevelopment, housing rehabilitation, and housing codes are palliatives that deal with a larger problem. In many urban areas, private market pressures operate as a centrifugal force: the conditions at the urban core repel capital investment and affluent households outward. The underlying tension in land use policy and lawmaking is the tension between the principle of centered growth and the realities of the market. Can localities use their land use authority to tug at the momentum of the market? Can zoning be used to prevent competition with businesses in downtowns, main streets, and waterfronts in which they invest to keep people from moving away or to bring them back in? Do commercial property owners in developed districts have standing to sue adjacent municipalities for zoning land in ways that accommodate their competitors? How much control do individual localities have over external market and political forces that frustrate their carefully conceived land use plans?...
- Land use plans often contain recommendations for the local legislature regarding these trends such as promoting the revitalization of one or more neighborhoods to attract higher income households or zoning more land for high density housing to cure an affordable housing problem. Plans also contain strategies to improve public transportation in urban neighborhoods to serve a host of mixed-use land uses and other initiatives intended to ensure safe and livable housing conditions.
- New York City adopted the first urban housing code in 1901: the Tenement House Act. Housing codes aim to ensure that multi-family buildings are safe, sanitary, and efficient. The housing code, like a number of other techniques used to maintain livability and redevelop cities, is not traditionally thought of as a land use technique, but is one of a growing list of tools that community leaders use to accomplish their land use planning objectives.
- The practice of housing and urban redevelopment law involves many other influences, normally thought of as outside the scope of land use law as a regulatory regime. Municipalities and developers rely on a large number of state and federal grants, subsidies, mortgage programs, tax deductions, and tax credits, for example, to implement their land use goals.
- This Chapter addresses the interplay between the private and public sectors regarding the provision of housing and the redevelopment of urban areas. Land use law encompasses many of the techniques used by municipalities to influence these matters: to ensure that safe and sanitary housing is available and affordable to all income groups, to stimulate the redevelopment of blighted or undeveloped neighborhoods, and to provide infrastructure to serve urban populations. Demography, employment, housing, and infrastructure are all subjects of land use planning, zoning, and land use regulation.
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Chapter 5 Fifth Amendment Limits on Land Use Regulations 66 results (showing 5 best matches)
- In total takings cases, the burden of proof is on the challenging property owner to show that the land use regulation permits no economically beneficial use of the land. Once that burden is carried, if the regulator cannot show that nuisance doctrine in the state, or other background principles of law, impose the same burden on the land as the regulation, a regulatory taking has occurred and just compensation must be paid.
- case does not appear to alter or affect the law regarding the ripeness of cases that challenge land use regulations. In , the Court ruled that a landowner must wait until the governmental agency responsible for implementing land use regulations has reached a final decision regarding the application of the regulations to the affected property. This has created some confusion as to how many applications a landowner must submit, and for what intensity of use must be proposed, before it can be determined by the courts whether the regulation has gone far enough to constitute a taking. The decision leaves undisturbed the understanding that the landowner must submit applications for development activity sufficient to discover the permissible uses with a reasonable degree of certainty. It is not sufficient to submit, for example, a grandiose development proposal, obtain a denial, and then challenge the regulations as a regulatory taking. In the ordinary context, land use agencies have a...
- The owners’ argument raised the issue of whether property rights in a single parcel of land are severable for the purpose of takings law. If property rights are defined in segments and one of those segments, such as the present right to develop, is totally prohibited by a regulation, does that regulation constitute a total taking under ? Broadly stated, the question was whether a regulation that totally limits the use of a portion of the land, whether limited by time, use, or space, deprives its owner of all economically beneficial use under the constitution. Specifically, the legal question addressed by the case was whether a moratorium on development of land constituted a regulatory taking,
- Notice that there is a strategically placed semicolon in this critical constitutional provision. It separates the “due process clause” from the “takings” clause. The first prohibits the federal Congress from passing any laws that do not substantially advance legitimate state interests. This means that a land use regulation is invalid if it does not in fact further a legitimate public purpose. The second requires that, if private land is taken or conscripted for a public use, just compensation must be paid. These clauses are the principal source of the property rights that courts protect from undue interference by legislatures and land use regulators.
- An exaction is a condition imposed on the issuance of a development approval that requires the developer to dedicate land to the public, to allow the public access to his private land, or to pay a fee in lieu of such requirements. In , the Court was asked to determine whether such fees are exactions. In tests to cases in which the plaintiff challenges a denial of a development permit. In dicta, the Court stated that land use decisions conditioned approval of development on the dedication of property to public use and, by extension, fees in lieu of such dedication, were exactions.
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Chapter 7 Smart Growth and Other Flexible Land Use Strategies 68 results (showing 5 best matches)
- A moratorium can be used by a community just prior to adopting its first comprehensive plan and zoning law or before undertaking a comprehensive revision of its plan and zoning. The moratorium prevents developers and property owners from rushing to develop their land under current land use rules that the community is in the process of changing. By so doing, it helps to accomplish the purpose of the new rules by giving them the broadest possible applicability and preventing development that is inconsistent with them. Moratoria are also used to prevent development for a time while the government agency decides whether to acquire land for a public use or until capital improvements are made, as in the
- The Oregon growth management statute, adopted in 1973, is the most directive of its kind. It creates a state agency known as the Land Conservation and Development Commission, articulates a number of statewide land use planning goals, requires local governments to adopt comprehensive plans that contain urban growth boundaries, and requires local plans to be approved by the Commission. The statute also created the Metropolitan Service District (Metro) to supervise the intermunicipal urban growth boundary in the greater Portland area. In 1979, the statute was amended to create the Land Use Board of Appeals (LUBA) to review local land use decisions. See O.R.S. Ch. 197 (2005).
- Smart Growth attempts to reign in the ill effects of sprawling land use patterns, which result gradually as the land use blueprint contained in the municipal zoning ordinance is built out, one project at a time. If local governments are to revise their basic blueprint and accomplish smarter growth, how should they proceed? State law provides numerous planning tools for municipalities to use in designating growth and conservation areas. The principal among these, of course, is the comprehensive plan, the ideal document to account for the rational allocation of land use. Local comprehensive plans usually include a statement of goals and objectives regarding the
- The legislatures of all 50 states have developed statewide approaches to managing growth and development. The adoption of the zoning and planning enabling acts, in the first instance, evidences a policy of delegating much of the responsibility for managing private land development to the local or county level of government. What is known as “state growth management legislation” refers to additional statutes that provide further guidance to, or impose limitations on, local land use authority. Even under these statutes, local governments play a significant, if somewhat more tethered, role in land use regulation.
- Goal 14 of the Oregon land use planning statute—the urbanization goal—classifies land into three categories: rural, urbanizable, and urban. Rural lands are agricultural, forest, or open space lands, or other land suitable for sparse settlement, with few public services. Urbanizable lands are to be contained within an urban growth boundary and are deemed suitable for future urban uses: lands that can be served by infrastructure and that are needed for the expansion of an urban area. Urban areas are within or adjacent to existing cities with concentrations of population and supporting public facilities and services. The statute provides for the orderly conversion of rural land to urban, based on the consideration of a number of factors, including the need to accommodate population growth through the provision of housing, jobs, and infrastructure. In , the court reinforced the Land Use Board of Appeals’ requirement to consider a variety of factors before extending the growth boundary,...
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Chapter 4 Subdivision Controls and Development by Agreement 46 results (showing 5 best matches)
- As discussed below, the U.S. Supreme Court has helped to articulate standards by which exactions must be measured to ensure that they are closely related to the needs generated by the development. In addition to these considerations, the imposition of exactions on land use approvals can violate the Takings Clause discussed in Chapter 5. When the condition, for example, requires the conveyance or dedication of land for public use, just compensation may be required. This occurs when the condition is not a proportional response to the adverse impact that the project will have on the community. In other words, the government might be able to acquire land for the intended purpose, but may not require it as a condition of development without a showing that it is necessary to mitigate impacts of the proposed project.
- Closely related to zoning, subdivision regulations are a form of land use control governing the division of land into two or more lots, parcels or sites for sale or development. Whereas zoning regulates the use, density, and dimensional requirements of land, subdivision regulates the development of the land by focusing on the creation of building lots and the provision of public infrastructure to service those lots. Where a zoning law exists, the lots that are proposed as part of a subdivision must comply with the applicable zoning regulations. Typically, planned suburban neighborhoods are developed based upon a subdivision review process.
- Subdivision review is an interactive process between the municipality and the applicant. The application to subdivide land is in effect a request for administrative action ultimately resulting in an approval for proposed development of a tract of land that will yield some number of smaller lots or parcels. While typically subdivision proposals conjure images of residential development, the laws are generally not written to be so restrictive, and they may accommodate the use of property for business, commercial or industrial uses.
- Like zoning, the authority that local legislatures have to enact local subdivision regulations is derived from the police power and is specifically found in state statutes (modeled on the Standard City Planning Enabling Act, sections 13 and 14). In most states, the local legislature also creates an administrative agency to review applications from landowners and developers that propose the subdivision of land. Subdivision regulations enable municipalities to guide the appearance and character of a neighborhood and developing community by providing criteria for design review of a proposed development. The regulations also make it possible ...to articulate the standards by which public improvements in the area are to be made by examining the need for, and provision of, adequate public infrastructure, ensuring that street patterns are consistent, and making certain that community services are available to meet community needs. Over the years, subdivision regulation has... ...an early...
- Developer agreements remain controversial in many states. It is uncertain whether a municipality illegally bargains away its police power by, in essence, promising not to change its zoning or land use regulations as applied to a particular parcel of land. Local governments are prohibited from contracting away their police powers because to do so would empower one legislative body to bind future legislative bodies. In , in characterizing a developer agreement as a form of conditional zoning, the agreement was upheld where the court determined that the city did not bargain away its police power
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Chapter 9 Local Environmental Law as a Land Use Issue 63 results (showing 5 best matches)
- to plan for and regulate the use of land by * * * [p]rotecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger wildlife species * * * [and by] [o]therwise planning for and regulating the use of land so as to provide planned and orderly use of land and protection of the environment in a
- The focus of law school environmental law courses on the federal government as the standard-setter and steward of a healthy environment obscures the importance of the role that local governments can and do play in environmental protection. Local governments in most states have been delegated primary responsibility for determining how private land is developed and conserved. It is the legislative and regulatory actions of those governments that dictate how much of the land is covered with impervious surfaces, how many miles of roads are built, how many septic systems, sewer plants, and water systems are created, and where buildings and improvements are located. These actions determine how much “nonpoint source” air and water pollution occurs. Local land use decisions greatly affect the watersheds, waterways, and other biological resources in areas that are rich in natural resources as well as in areas where environmental assets are scarce.
- Some localities use their environmental authority to protect drinking water aquifers by imposing additional regulatory standards on development projects proposed in such areas. The aquifer protection ordinance of Wallingford, Connecticut, for example, prohibits certain land uses in order to protect its groundwater resources. Landowners are not allowed to conduct businesses that use hazardous chemicals, or to use their land for solid waste disposal facilities, junk yards, septage lagoons, hazardous waste drum storage areas, bulk storage piles, surface impoundments, road salt storage, or pipelines that transmit oil, gasoline, or other hazardous materials. Other less dangerous land uses are allowed but carefully controlled, such as above-ground chemical and fuel storage, underground fuel storage, dry cleaning, and new or enlarged manure, fertilizer, pesticide, and herbicide storage sites. § 4.12 (1985). In
- A landowner in Oklahoma was not denied all economic and viable use of his land when his 40-acre lot of agricultural land was rezoned in a floodplain zoning district subsequent to his purchase. . The Flood Damage Protection Ordinance limited development to “flood tolerant uses.” The landowner challenged the ordinance as a regulatory taking and the Oklahoma Supreme Court held that, although the landowner’s application to rezone the property for higher density development was denied, the property still had economically viable uses under the current ordinance because it allowed the construction of single-family residential units.
- As earlier chapters demonstrate, our nation’s legal system gives local governments a key, if not the principal, role in land use regulation. Local governments may adopt master plans, zoning ordinances, and a variety of community-building regulations that provide for their future development. Comprehensive zoning began as a mechanism for protecting public health and safety by separating incompatible land uses from one another. In its application, zoning became design-oriented, focusing on the layout of streets and highways, the location of public buildings, the ability of fire trucks and firefighters to reach and fight fires, the size and bulk requirements that protect property values, and the infrastructure connections that create a workable community.
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Chapter 10 Aesthetic, Historic, and Cultural Interest Protection 29 results (showing 5 best matches)
- Besides a method of controlling growth and regulating development, zoning can also be used as a tool to protect the aesthetic and cultural interests of a community. Today, aesthetics has permeated into many aspects of land use law that have already been discussed: housing codes, variances, smart growth, and planned development, to name a few. Notwithstanding their current prevalence, laws that addressed aesthetic and cultural interests were not considered valid subjects of regulation until the mid-1950s. Even today there are some courts that will not uphold a zoning ordinance that is based solely on aesthetic grounds.
- . In , local officials in Washington D.C. sought to use the power of eminent domain to take possession of undesirable structures in furtherance of an urban renewal project. Proponents of the plan argued that this was a valid exercise of the police power because it was a measure to promote the general welfare of the community. The Supreme Court agreed, stating that “the concept of public welfare is broad and inclusive. The values it represents 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. . . .” By adopting such a broad interpretation of the public welfare, the Supreme Court established a precedent that local officials could rely on when enacting ordinances that protect aesthetic values, and set the stage for using zoning and other land use regulation tools for protecting the aesthetic and cultural resources of a given community.
- The placement and appearance of signs and billboards is one of the most obvious and ever-present land use issues that invokes the virtues of aesthetic zoning. Due to recent advances in technology, traditional two dimensional signs are losing ground to newer electronic displays, which may contain flashy designs or three dimensional images. Although these new displays may be more effective at drawing attention to a particular message, many people consider them to be distracting and undesirable additions to the community. As a result, it is not surprising that some communities are making an effort to regulate or eliminate outdoor billboards and signs altogether. Laws that regulate the spacing and design of signs have grown in popularity in recent years, despite the fact that some courts have been unwilling to uphold some types of sign control legislation.
- Generally speaking, landmark preservation ordinances that focus on regulating the use of land will be upheld if the regulations are not so severe as to rise to the level of an uncompensated taking. However, landmark preservation ordinances seeking to dictate how property may be owned have been struck down in some jurisdictions as improper and unconstitutional. For example, in , a plaintiff brought suit challenging the constitutional validity of a landmark preservation ordinance which applied to one 22-acre lot. The court concluded that the regulation, which directed that the lot be maintained in single ownership, and which limited the development of the property to residential condominiums, was an unconstitutional taking of private property without just compensation. The court stated that, “a municipality does not have the power to regulate the manner of ownership of a legal estate, as it is use rather than form of ownership that is the proper concern and focus of zoning and...In
- Transfer Development Rights, or TDRs, have also been used in connection with landmark preservation regulations. Typically, a municipality will use TDRs to separate the right to develop property from other property rights that may be limited by a landmark preservation ordinance. For example, a landowner may agree not to demolish a landmark structure, pursuant to the applicable regulations, in return for the issuance of certificates of development rights. The development rights lessen the burden on the effected property owner because he is given the opportunity to realize the value of development rights, either by using them to build in another location or by selling them to someone else who can use them in an appropriate district. In addition, tax deductions may be offered to further induce compliance with the landmark preservation ordinance. Although proponents of TDRs assert that the landowner is fully compensated by receiving an equivalent right to develop elsewhere, opponents...
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Center Title 2 results
Title Page 2 results
Dedication 1 result
Outline 52 results (showing 5 best matches)
Index 51 results (showing 5 best matches)
- See also Accessory Use; Aesthetics; Building Permit; Cease and Desist Order; Certificate of Occupancy; Cluster Zones; Coastlines and Beaches; Comprehensive Plans; Conditional Rezoning; Conditional Zoning; Contract Rezoning; Exclusionary Zoning; Floating Zones; Group Homes; Judicial Review of Land Use Decisions; Large Lot Zoning; Nonconforming Uses; Nuisance; Overlay Zoning; Performance Zoning; Planned Unit Development (PUD); Planning; Remedies; Rezoning; Special Exceptions; Special or Conditional Use Permits; Spot Zoning; Traditional Neighborhood Zoning; Variances
- See Religious Land Use and Institutionalized Persons Act; Civil Rights Act
- Relating to Land Use, 3–4, 6, 8–9
- ENFORCEMENT OF LAND USE REGULATION,
- HISTORY OF LAND USE
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Table of Cases 13 results (showing 5 best matches)
- Haviland v. Land Conservation and Development Commission, 222
- Landmark Land Co. v. City and County of Denver, 304
- Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 282
- Ridgefield Land Co. v. Detroit, 111
- Adoption of N.J.A.C. 5:96 & 5:97 by New Jersey Council on Affordable Housing, In re, 270
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- Publication Date: May 17th, 2017
- ISBN: 9781634603010
- Subject: Land Use
- Series: Nutshells
- Type: Overviews
- Description: This book reviews the common law principles that underpin modern land use regulations, including covenants and restrictions that work with government regulation to limit the use of private property. The Nutshell clearly explains the legal aspects of land planning and regulation, project review processes, and innovative and flexible regulatory devices. Subdivision and site plan regulation, local environment law, discrimination in zoning, regulatory takings, inverse condemnation, and community development practices are all explored. In addition, the book discusses the law of smart growth, and addresses current trends in land use law including the siting of renewable energy facilities. An appendix of internet-based resources is also provided. Law and planning students will find that this Nutshell covers the key cases in all land use law textbooks, and seasoned practitioners and planners will find the organization and approach to dozens of subject areas beneficial to their understanding of land use law.
