Land Use Law in a Nutshell
Authors:
Nolon, John R. / Salkin, Patricia E.
Edition:
2nd
Copyright Date:
2017
21 chapters
have results for construction law
Chapter 3 Zoning Districts and the Separation of Land Uses 52 results (showing 5 best matches)
- The zoning enforcement officer is charged with the duty of inspecting construction sites while construction of approved development is proceeding. Municipal law must specifically empower the officer to enter onto private property. In most localities, a landowner’s application for zoning approval conveys implicit permission to inspect the premises during and after construction.
- Before beginning any serious construction, the landowner must secure a building permit that certifies that the proposed construction meets the standards of the applicable building, fire, plumbing, and electrical codes. In the typical community, when an application for a building permit is submitted to the local building inspector or zoning enforcement officer, that administrator must ascertain, before issuing the building permit, that the proposed construction is in compliance with the zoning law and other land use regulations.
- Nonconforming use provisions in zoning laws vary considerably from one locality to another. A municipality particularly intent on eliminating nonconforming uses may prohibit any physical expansion of a building; another may favor property use by allowing, for example, the construction of an additional story because it does not increase the footprint, or lot coverage, of the structure.
- Local governments provide for the enforcement of their land use regulations in a variety of ways. Most building construction, building uses, and changes in land use must comply with the local zoning law and applicable land use and building regulations. Technically, building codes (fire, construction, plumbing, and electrical) are enforced by specialized building inspectors, while zoning provisions are enforced by zoning enforcement officers. Depending on the size of the municipality and its fiscal resources, there may be large departments with various personnel assigned these tasks or a single ministerial official who serves as both the building and zoning officer. Practice with regard to zoning enforcement and the terms used vary, of course, from
- After construction and after a complete inspection of the premises, a certificate of occupancy is issued that certifies that the construction, as completed, meets the specifications of all applicable codes. Until there is a validly issued certificate of occupancy, the building may not be lawfully occupied.
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Chapter 9 Local Environmental Law as a Land Use Issue 34 results (showing 5 best matches)
- Steep slopes usually are associated with other environmental features such as rock outcrops, shallow soils, bedrock fractures, and groundwater seeps. Excavations or building construction can cause instability through loosening of the soil structure and the removal of trees, vegetation, and rocks. Grading, cutting, and filling—activities associated with preparation of construction sites—can compromise the stability of some slopes. Activities such as agriculture, road and railway construction, house building, and land drainage can be regulated to protect steep slopes. The town of Cortlandt, New York, adopted a local law for the purpose of preventing the “improper alteration” of steep slopes.
- Whether local governments have the authority to adopt laws to protect natural resources and prevent environmental pollution depends on the scope of power they have been delegated by their state legislatures and also on how state courts interpret their delegated authority. Some state courts have adopted rules of strict construction and others interpret local authority more broadly.
- As congestion of homes, traffic, and people has accompanied urban sprawl, a counter movement has begun, focusing on one salient symptom: the disappearance of open space—the appearance that things are too crowded. Citizens and local voters notice and complain that their communities look different. They lobby for local laws that protect views and the visual environment. Local legislatures have responded by enacting laws that protect scenic resources and assets, including open views, country roads, panoramic landscapes, tree-lined streets, stonewalls, and agricultural scenes. Local efforts to preserve scenic resources include the regulation of road construction and maintenance, land clearing, architecture, and location of utility lines and signage. Other requirements such as the maintenance of vegetative buffers, street trees, and other vegetation may be included in local scenic protection laws to minimize the visual impact of development.
- Floodplain regulation was one of the first and most extensive examples of local environmental law. Development activities in floodplains can decrease their water storage capacity, increase runoff, and decrease water quality. Local floodplain regulations can limit the extension of buildings and infrastructure into the flood areas, require that such buildings are built at certain elevations, prevent the obstruction of stream channels, and prohibit the construction of chemical or other hazardous materials storage facilities.
- The trend in local environmental law is to recognize natural connections on the land and waters by broadening the scope of natural protection laws. Steep slopes, like wetlands, are often found in association with other critical environmental , the Connecticut Supreme Court sustained a town law that protected ridgelines in this broader context. The local law excluded wetlands, watercourses, and land with a 25 percent slope or greater from calculations used to determine how much land is developable under the zoning ordinance. The calculation was applicable only in residential districts and served to lower density in those districts by increasing the minimum lot size needed for single-family home construction. The court rejected the plaintiffs’ claim that the law lacked a rational basis and violated the uniformity requirement for zoning under Connecticut law.
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Chapter 1 Introduction and Common Law Origins 49 results (showing 5 best matches)
- The great fire of 1666 in London led to the adoption of municipal building construction laws that required brick exteriors, wider streets, and open space along the Thames River for access to water for firefighting. Land use was regulated to a minor degree as well, with activities such as breweries and tanneries prohibited in the central city. The law provided for compensation to be paid to any individual lot owner who was prohibited from building. These early land use rules were articulated first in a proclamation by King Charles II, supported by a report from an investigative committee established by the King, and formalized by the Act for the Rebuilding of London adopted by Parliament in 1667. The Act gave the municipality the power to regulate the construction of buildings: their size, height, and placement on the lot, and the materials used.
- delegated by the state and extends only to their geographical boundaries, with modest exceptions. Planning and zoning enabling laws specifically authorize municipal governments to control the use of the land by adopting land use plans and creating zoning districts, within which specified land uses are allowed and various construction standards enforced. In most states, zoning regulations must conform to the locality’s land use plan. State enabling laws also authorize localities to create administrative and quasi-judicial agencies to review and adjudicate proposals for land development and to hear petitions for relief from zoning regulations.
- , the plaintiff brought an action to enjoin the construction of a home on the neighboring lot alleging that it would interfere with access to sunlight for his solar panels. The state court held that although the defendant was otherwise in compliance with all zoning laws, compliance did not automatically bar a private nuisance claim.
- Prior to the advent of zoning in the 1920s, servitudes provided developers an effective method for creating high quality residential neighborhoods. The developer would buy a large parcel of land, subdivide it into lots, and sell those lots to individuals for the purpose of building homes. To control the quality of the subdivision, each deed would contain a set of covenants prescribing certain land use practices (each house is to be set back from the street by 20 feet, for example) and proscribing certain land uses (the lot is restricted to the construction of a single-family house and a garage).
- It is in sorting out these terms that the complexity of the law of servitudes is encountered. The Restatement of Property, Servitudes published by the American Law Institute in 2000, greatly simplifies the law in this field. It reduces the types of servitudes to three—profits, easements, and covenants—and integrates them into a modern law of servitudes where many of the common law terms are eliminated and the rules are made more uniform. Unfortunately, the Restatement is not the law in many states and, regarding particular servitudes and the terms used to describe them, complexity still exists. If this occurs in the study of land use law, the student should consult a hornbook on servitudes to clarify the matter at hand.
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Chapter 12 Critical Contemporary Land Use Issues 21 results (showing 5 best matches)
- Displacement and soil disruption/erosion related to the construction and operation of wind turbine farms have also been raised as environmental concerns. These can be effectively avoided with careful attention to appropriate design measures, including following natural terrain contours to the maximum extent possible and quickly restoring land disturbed by construction activities.
- This body of law is created mainly by state and local governments, which have the principal legal authority to regulate building construction, land use, and the conservation of natural resources at the local level. More recently, it involves preserving or expanding the GHG-sequestering environment, adapting to sea-level rise, and building more resilient developments to withstand the fiercer storms associated with climate change.
- “Green development” means that as real estate is developed, it occurs in a manner that integrates social and environmental goals with financial considerations. While the “green building” phenomenon has focused on energy efficient design and the use of energy efficient and recycled products during building construction, the notion of “green development” is shifting into the land use arena. In describing the relationship between the green building movement and local land use, the U.S. Green Building Council explains, “Development and construction projects are often destructive to local ecology. For example, stormwater runoff from developed areas can impact water quality in receiving waters, hinder navigation and recreation, and disrupt aquatic life. Site clearing and earth moving during construction often results in significant erosion problems because adequate environmental protection strategies are not employed. In addition, development activities may encroach on productive...
- Unlike traditional energy generating facilities, wind power is virtually emission free, yet concerns still exist over the effect wind power facilities will have on the environment. These concerns can arise in a number of different contexts, such as bird and bat collisions with the turbine’s rotors, disrupting native habitats during building, or invasion of non-native plants to the disturbed soil after construction.
- At the end of the last century, the literature regarding planning and planning law was saturated with discussions of smart growth. By the turn of the century, more emphasis was being placed on incorporating the concepts and principles of sustainable development. Today, we realize that effective sustainable development planning and law must also include strategies that mitigate and adapt to climate change and the effects of global warming.
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Chapter 10 Aesthetic, Historic, and Cultural Interest Protection 18 results (showing 5 best matches)
- , the court upheld the denial of a permit pursuant to an ordinance that prevented the construction of “unsightly, grotesque, and unsuitable structures” within certain neighborhoods. The petitioner was denied a permit to construct a “highly modernistic” house within a neighborhood that contained traditional Colonial, English Tudor, and French provincial style homes. The court rejected his assertion that the law was arbitrary and unreasonable and ultimately concluded that the general welfare was promoted through the denial if it would protect property values in the surrounding area. Moreover, where an architectural review board refused to approve the construction of a one-story house that could resemble a commercial building in a neighborhood that consisted primarily of multi-story dwellings, the Ohio Court of Appeals similarly held that the authority to render such determinations was appropriate for maintaining the character of the community.
- Although many jurisdictions have upheld the use of zoning ordinances as a means of protecting property values, municipalities must be careful to draft local laws and regulations that contain standards and review criteria. For example, in , the New Jersey Superior Court determined that an ordinance establishing an architectural review board with unbridled review powers, to which applicants had to apply for construction or renovation permits, was an invalid exercise of the municipal police power since it usurped the power of the board of adjustment by not providing specific criteria for the review of applications. In
- 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.
- The Supreme Court of the United States reviewed a local law that restricted signs, based on their . The Town of Gilbert imposed more stringent restrictions on signs that directed the public to a meeting of a non-profit group than it did on signs conveying other messages. The court unanimously held that this local law was invalid as a content-based regulation of speech. The local law failed the Court’s strict scrutiny analysis; the town could not claim that placing strict limits on temporary directional signs was necessary to beautify the town while similar signs that created the same issue of distracting from the aesthetics of the town.
- Typically, when a municipality adopts a sign law solely for the purpose of advancing aesthetic goals, existing signs are allowed to continue in place until the owners have received some return on their , nonconforming sign owners brought suit challenging a city ordinance that regulated the size, height, and placement of signs within the city, and required all on-site nonconforming signs to be altered to conform with the new law, or removed within seven years. Here, the preamble to the ordinance stated that its primary purpose was to protect the city’s scenic resources, which had “contributed greatly to its economic development.” The Supreme Court of Arkansas upheld the ordinance, and directed the plaintiff to remove his non-conforming signs after finding that the applicable amortization period gave him sufficient time to recoup his investments, thus making the law fair with respect to the city’s property owners.
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Chapter 5 Fifth Amendment Limits on Land Use Regulations 26 results (showing 5 best matches)
- , where the government adopted an interim ordinance prohibiting the construction of structures in a flood zone, the plaintiffs challenged the ordinance as a temporary taking. The Supreme Court held that if a regulation is determined to have taken property, the Takings Clause would require that compensation be paid during the time the regulation was in effect. Simply repealing the law would not be enough.
- by examining how damages for temporary takings should be determined in inverse condemnation proceedings. In this case, a landowner sold a piece of property in the City of Pleasant Grove to a developer who planned to build a 120-unit apartment building on the site. After finding that the proposed land use complied with applicable zoning ordinances, the Pleasant Grove Planning Commission issued a building permit, and the plaintiffs began work in preparation for construction. Following strong public opposition to the project, and a referendum that confirmed that a majority of the city’s residents were against it, the city council passed an ordinance that outlawed the construction of apartment complexes in the city limits and stopped plaintiffs’ construction. In a prior decision, the court found that the ban on apartment development and the stop work order under these circumstances constituted a regulatory taking. In this case, it turned to the determination of the appropriate measure...
- No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Moratoria prevent landowners from rushing to develop, causing inefficient and ill-conceived growth before a comprehensive plan can be adopted. They prevent regulators from making hasty decisions that would disadvantage landowners as well as the public. The Court recognized that land values can actually increase during a moratorium and that the public and all landowners are reciprocally benefited by moratoria because they protect everyone’s interest against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. Of course, moratoria can be
- All land use regulations must conform to the Fifth Amendment of the U.S. Constitution. They are not valid if they deprive any person of property without due process of law and they cannot constitute takings of real property unless just compensation is paid. The structure of the relevant provision of the Fifth Amendment is interesting to study. It reads as follows:
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Appendix An Internet Guide to Land Use Research 31 results (showing 5 best matches)
- has a mission to promote sustainability-focused practices in the building and construction industry. It developed LEED—Leadership in Energy, Environment and Design—which is a certification program for buildings and communities that guides their design, construction, operations and maintenance toward sustainability. It’s based on prerequisites and credits that a project meets to achieve a certification level: Certified, Silver, Gold and Platinum.
- Government Law Center of Albany Law School
- Students of land use law cannot conduct comprehensive research in the field today without surfing the ’Net. The Internet has become a virtual library providing access to resources beyond what the traditional legal online databases have to offer. For example, while the proprietary law related sites offer comprehensive access to federal and state statutes, regulations, and caselaw, there is sparse access to information about municipal laws and ordinances pertaining to planning and zoning. In addition, proprietary sites provide online access to law review articles, but they do not capture non-commercial publications that contain legal analysis of various planning and zoning related issues. Today, many non-profit and advocacy organizations post position papers, scholarly articles and reports, and other law-related information (such as amicus curiae briefs) to their websites. And of course, planning and law professors often provide course websites with a host of interesting information...
- Florida State University College of Law
- Sabin Center for Climate Change Law at Columbia Law School
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Chapter 4 Subdivision Controls and Development by Agreement 16 results (showing 5 best matches)
- Following the preliminary review, the applicant must then submit a final plat. Statutes or local laws will also set forth a time frame within which this submission must be made. Usually, so long as the applicant has followed the required conditions from the planning board, the final plat submission is approved. This could be problematic, however, where local zoning laws have changed between the time of initial review and final submission. This is covered below in the discussion of vested rights in Section 6. States may give municipalities the ability to grant a conditional approval of a final plat which sets forth additional conditions that must be satisfied prior to the signing of the plat by the authorized local official for filing and prior to the granting of any building permits. Where a conditional approval is granted, statutes also provide the time frame within which the applicant must bring his plat into compliance or lose the conditional approval. In addition, municipalities...
- Developers invest significant fiscal resources into the subdivision review process. Costs may include the professional services of engineers, surveyors, planners, lawyers, and architects, as well as services for the testing of soils and examination of other environmental and geological aspects of the proposed development. Even when the government grants subdivision approvals and the owner of record files the approved plat, subsequent changes in either the local subdivision law or the zoning law may supercede the prior approval. Absent a state statute on developer agreements, developers and landowners are subject to the “vested rights” common law in their jurisdiction. Each of these concepts is discussed more fully below.
- , the owner of a parcel recorded an approved subdivision plat prior to the application of a new zoning law which had the effect of making the lots substandard. The Arizona Supreme Court rejected the owner’s assertion that he held a vested right to develop the substandard lots where there was no attempt to improve the property and it had remained vacant from the date of the filing of the subdivision plat through the implementation of the new zoning law. Similarly, in , the developer had spent more than $3 million to improve the property based upon a final approval of a map and initial approval of a development permit for 7,500 acres of land. The state later changed the regulations and required the landowner to comply with the new law. The California Supreme Court found that the landowner had not acquired vested rights, even though a significant amount of money had been expended, because the landowner never received a final
- 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.
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Chapter 8 Housing and Urban Redevelopment 18 results (showing 5 best matches)
- Where state law permits them to do so, communities can encourage developers to provide affordable housing by allowing them additional houses if they promise to make a percentage of them available to certain types of households in need of affordable accommodations. State law can go further and require communities to provide affordable housing. In New Jersey, the legislature adopted the Fair Housing Act of 1985 to provide for the development of low- and moderate-income housing under local zoning ( ...fair share housing plans. Such plans are prepared and submitted by municipalities throughout the state. If a local government fails to submit such a plan, or if the plan does not merit COAH certification, the locality is particularly vulnerable to developer challenges. If a developer of affordable housing is denied approval to build in a locality without a certified plan, the court is likely to mandate the rezoning of the developer’s land to a higher density allowing the construction...
- 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.
- ...uses by excluding from particular districts all uses except those that are expressly permitted. The exclusionary effect of zoning presents several important issues. Are there any uses that a zoning ordinance may exclude entirely? Are there some that cannot be excluded for one reason or another? If zoning cannot exclude truly harmful uses—by eliminating or confining boiler factories, rendering plants, other types of heavy industry, or automobile junkyards, for example—then how can it truly protect its residents? If zoning is permitted to be exclusionary with respect to certain land uses, then how broadly can this principle be applied? Carried to the extreme, zoning’s exclusionary effect could be extremely damaging to broader state interests and property rights. What happens, for example, if suburban zoning ordinances prevent the construction of multi-family housing or impose building standards that greatly increase housing costs? If the effect of these is to exclude a significant...
- , the Pennsylvania court invalidated the total exclusion of apartments from a municipality. The town was zoned for single- and two-family residential as well as industrial and commercial use. Apartment buildings were not affirmatively provided for in the zoning, but were permitted upon the approval of a variance. When the plaintiff sought a building permit to construct an apartment on land zoned for single-family construction, the permit was denied because multiple dwellings were not allowed in the zone. The
- To ensure that housing is provided for moderate-income households, some communities simply require that all residential developments in certain zones contain a percentage of housing affordable to them. In response to a shortage of housing for the community’s manual laborers, a task force was formed and it recommended that the City of Napa enact an inclusionary housing ordinance. The ordinance requires that the developers of all new residential construction set aside 10% of the new units for affordable housing. The Home Builders Association brought an action against the city alleging that the ordinance was facially invalid as a taking. In
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Index 8 results (showing 5 best matches)
Table of Cases 2 results
Chapter 6 Other Constitutional and Statutory Limits on Land Use Regulation 17 results (showing 5 best matches)
- , et seq. The law was enacted “to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services. . .by opening all telecommunications markets to competition. . .” To further this end, Congress enacted a number of substantive and procedural limitations upon the authority of state or local governments to regulate the construction of facilities for wireless communication services. In
- (N.C. 2002). In this case, a county agri-business council challenged ordinances enacted by the county board to regulate the operation, construction, and expansion of swine farms in the county. The Supreme Court of North Carolina held that, although the enactment and operation of a statewide law does not necessarily prevent a county from regulating in the same field, local regulation in the area will be excluded if it can be shown that the legislature intended to preempt the entire field. Here, the court found that the State
- A number of states have sought to limit local decision-making authority over the siting and construction of group homes for the mentally ill. Pursuant to
- The primary limitations on local zoning authority under TCA provide that state and local regulation of the placement, construction, and modification of personal wireless facilities: (1) cannot unreasonably discriminate among providers of functionally equivalent services; or (2) prohibit the provision of wireless services in general. In under generally applicable zoning requirements, even where those facilities provide functionally equivalent services.” In other words, the court concluded that the TCA does not prohibit local governments from taking the location of a proposed telecommunications tower into consideration when deciding whether to require a more probing inquiry, and when deciding whether to approve a construction permit, even though this may result in discrimination between providers of functionally equivalent services.
- Despite the controversy in communities and in the literature regarding electromagnetic field emissions (EMFs) from wireless communications facilities, the TCA expressly preempts state and local government regulation of the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC’s regulations concerning such emissions. § 332(c)(7)(B)(iv).
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Chapter 7 Smart Growth and Other Flexible Land Use Strategies 18 results (showing 5 best matches)
- A little understood dimension of local land use control is the relationship between zoning and capital improvements. Zoning prescribes where development is to go and how much of it there is to be in any given place. As land is developed according to the zoning law and map, new homeowners and business operators need public services including water, sewer, transportation, schools, libraries, firehouses, police protection, etc. The cost of most of this infrastructure is borne either by the new residents and business owners who pay the developer for installing on-site improvements, or by the taxpayers of the community, who must bear the cost of public services not subsidized by higher levels of government. By adopting detailed plans for infrastructure construction and expansion, and
- The purpose of adding one or more floating zones to a community’s zoning law is to add flexibility to that law, enabling it to accommodate new land uses, but in a controlled fashion. As a community’s needs change, uses that are not readily accommodated by the adopted zoning law may be desired by local leaders. These uses may be unique and have a relatively significant but manageable impact on their surroundings. Local officials may be unclear as to where such uses should best be accommodated and where developers would prefer to locate them to ensure that they are successful economically.
- Construction Industry Ass’n of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975)
- A moratorium on development suspends the right of property owners to obtain development approvals while the community takes time to consider, draft, and adopt land use plans or rules to respond to new or changing circumstances not adequately dealt with by its current laws. At the local level, moratoria figure into growth management and smart growth by giving communities experiencing growth pressures time to rethink their land use plan and laws and adopt a new, smarter approach that more properly manages growth.
- Recall that local governments get their authority to enact land use law from their state legislatures. In many states, the courts have held that the delegation of land use control—the authority to adopt plans, zoning, and development regulations—carries with it the implied power to adopt moratoria. Some states, however, restrict this power. New Jersey statutes, for example, limit moratoria to matters involving an imminent threat to the public health and their duration to no more than six months. Statutes in California, Minnesota, Montana, and Utah also limit the duration of development moratoria. Moratoria must be adopted in compliance with the formal provisions of law for zoning amendments, in most states, and localities that rush to adopt them bypassing such steps (such as publishing a public notice and holding a public hearing) risk having the moratorium invalidated by the courts. See
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Chapter 11 Initiatives, Referenda, Mediation, and Judicial Review 23 results (showing 5 best matches)
- A local ordinance that permitted low-income housing construction and the city council’s approval of a developer’s site plan for the project were submitted to referendum under provisions of a city charter. The vote by the people blocking construction was challenged in
- 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 plaintiff landowners challenged the village’s zoning law, which divided its property into three separate use zones. Their claim was that the law served no legitimate public purpose and was constitutionally invalid on its face. In this case, the United States Supreme Court established the standard of review to be used by the courts when a zoning law is challenged on substantive due process grounds: “[T]he reasons [must be] sufficiently cogent to preclude us from saying, as it must be said before the law can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals, or general welfare.”
- The judicial questions that arise in this context are whether state law allows local citizens initiative or referendum rights and, when the answer is yes, whether the particular objective of the initiative or referendum is within the authority granted to citizens to act by direct democratic means. Initiative and referenda requirements, and their exercise, are referred to as “ballot box zoning.” They are often used by voters in developing communities to adopt or reverse laws that slow down the rate of growth, or to oppose locally unwanted land uses such as affordable housing. Where they can take the initiative, voters can propose and adopt new zoning and land use standards for an area where unwanted growth is feared; using their referendum rights, voters can subject legislated zoning standards to popular vote and overturn provisions to which they object. Usually, state laws allow referenda upon the submission of a petition signed by a certain percentage of voters; in some states...
- Land use law involves the study of legislative and administrative processes. State legislatures delegate and withhold certain powers from municipalities. Local legislatures adopt land use plans and regulations and establish local administrative agencies that grant variances, special use permits, hear appeals from determinations of zoning enforcement officers, and approve proposals to develop sites or subdivide property and develop individual lots. What happens if local citizens, or persons aggrieved by a local land use decision, want it reviewed, modified, or reversed? In this chapter, we examine three approaches: (1) consent, initiative, and referendum—so called “direct democracy” techniques; (2) mediation of disputes among the parties themselves; and (3) review by the courts. Each of these forms of review is limited by the circumstances and the laws and practice of the particular state.
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Chapter 2 Land Use Plans and the Planning Process 13 results (showing 5 best matches)
- 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...
- Courts are involved, however, in deciding myriad questions concerning conflicts of interest that arise in land use planning and decision-making. These situations often involve members of planning or zoning boards or local legislative bodies. At times they focus on relationships that involve planners, lawyers, engineers, bankers, real estate agents, and others participating in cases before planning and zoning boards and commissions. These questions are not examined as matters of professional conduct, but are analyzed according to various state and local laws and regulations pertaining to government ethics. Many times there is no specific state statute or local law on point. The courts then resort to the common law, or caselaw, to determine whether a particular
- Language from the Growing Smart Legislative Guidebook was incorporated into new land use laws in more than a dozen states. While the full extent of the influence of this modern reform effort will not be known for some time, it is clear that its impact will be farther-reaching than prior initiatives such as the Model Land Development Code. Unlike prior efforts, the Guidebook also contains useful model language for municipalities to incorporate into local zoning and land use laws.
- USE LAW, AND DEMOGRAPHY
- While the early Standard City Planning Enabling Act was clearly influential in the adoption of state planning enabling acts across the country, its shortcomings are apparent in hindsight now that the nation is more fully developed. For example, at the time of the adoption of the enabling Act, there was no interstate highway system, which many have identified as a significant factor in suburban sprawl. Approximately 50 years after the Act was introduced, the American Law Institute published a Model Land Development Code in an effort to modernize the state planning and zoning enabling acts that were based upon the 1920s models. This effort resulted in a multi-volume, 12-section report that failed to garner national interest. In fact, with the exception of the State of Florida, which based its development of regional impacts law on the relevant provisions of
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WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Preface 5 results
- 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.
- 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...
- Litigation regarding regulatory takings and the deprivation of due process is brisk and controversial. It pits property rights advocates against public regulators and conveys the impression that today’s heated battles that shape and define the law of the land are unique to our time. Long ago, however, Blackstone noted that property owners enjoy “despotic dominion” of their land, subject only to the “reasonable laws of the land.” This enigmatic utterance properly characterizes our ongoing attempt to resolve the tension between our confidence in private ownership and society’s need to control private land use to protect the land and its resources. We hope that our summary and interpretation of land use law will help others understand it and to employ it with care so that this critical balance is maintained.
- and was assisted in its fourth edition by our friend Morton Gitelman. It served students, professors, and interested professionals for over a quarter of a century. In 2006, we considered various approaches to West’s invitation to write a new version in response to the rapid changes on the land and in the law. To help us navigate this extensive terrain, we reviewed every case contained in current casebooks and let that material dictate the content and organization of this book. We reckoned that a Nutshell’s principal users are students, and that they will consult the book primarily to find out where each case fits into the grand tapestry of land use law. This caused us to abandon the framework of our own casebook, one that we inherited from Professors Wright and Gitelman. This approach is continued in this second edition.
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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.