Land Use Law in a Nutshell
Authors:
Nolon, John R. / Salkin, Patricia E.
Edition:
2nd
Copyright Date:
2017
21 chapters
have results for local law
Chapter 11 Initiatives, Referenda, Mediation, and Judicial Review 35 results (showing 5 best matches)
- 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.
- 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.
- Constitutions of the 50 states delegate the power to legislate to protect the public health, safety, welfare, and morals to state legislatures. Zoning enabling laws are enacted by those legislatures to give localities power to control land use. In some jurisdictions, the state legislature has seen fit to give some of this legislative authority back to the people directly. At the local level, citizens may be authorized to enact land use regulations by initiative or to subject local legislative zoning decisions to their review by referendum. A referendum refers a matter decided by the local legislature to a vote of the people at the polls. Both initiative and referendum proceedings are begun, in most cases, by voter petitions which must comply with the procedural and time prescriptions of state law.
- 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...local
- involved a facial attack on a village zoning law; challenged a law enacted by the Hawaii state legislature. The separation of powers doctrine dictates a posture of deference in these situations. Even when courts review the decisions of administrative bodies (planning boards and commissions or zoning boards of appeals), they defer to local decision makers whose knowledge is thought superior to that of the courts. From state-to-state, courts may take slightly different approaches to reviewing these decisions, requiring for example a showing of “substantial evidence” to support a decision here, or requiring “facts on the record” to sustain a decision there. These nuances are important, but they do not mask the fact that the judicial standards of review are mostly hospitable to local land use decisions.
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Chapter 9 Local Environmental Law as a Land Use Issue 47 results (showing 5 best matches)
- 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.
- During the last two decades, there has been a remarkable but little noticed trend among local governments to adopt laws that protect natural resources and lessen environmental pollution. These local environmental laws exhibit a number of forms. They include local comprehensive plans expressing environmental values, zoning districts created to protect critical environmental areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural features such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. Local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them to address locally occurring environmental problems.
- 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.
- 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.
- In Colorado, statutes provide local governments with the authority to adopt local environmental laws that protect wildlife habitat. . The purpose of the Local Government Land Use Control Enabling Act is to maintain a balance between the basic human needs of its changing population and “legitimate environmental concerns.” Specifically, the Act empowers local governments
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Chapter 3 Zoning Districts and the Separation of Land Uses 57 results (showing 5 best matches)
- This concept spread quickly. By the mid-1920s, nearly 400 local governments had adopted comprehensive zoning laws. Initially, municipal authority to control private land use so comprehensively was in doubt. In 1922, the U.S. Department of Commerce issued a model law called the State Zoning Enabling Act. It was intended to be considered and adopted by state legislatures to make it clear that the adoption of zoning laws is within the legal authority of municipal governments. All 50 states adopted some variation of this statute delegating authority to municipalities to regulate private land uses. Over time, these statutes have been changed; today the states vary in how broadly they empower local governments, to what extent they guide them—mandating certain local approaches to land use control—and when they foreclose local action through preemptive, statewide laws.
- Municipal corporations are governed by local legislatures composed of legislators elected by the people. Local legislatures enact zoning laws and provide for the formation of administrative agencies to administer land use regulations. Residents of the locality are appointed or elected to be members of these administrative agencies. Again, local practice varies. What these boards are called, how many of them there are, how citizens become members of them, and what duties are delegated to each board, differ from place to place.
- Local governments are formed as municipal corporations. Just like business corporations they can have charters that enable them to carry out governmental activities and are further limited by state law governing municipal corporations. Lawyers for municipalities that have charters begin their exploration of their clients’ legal authority by looking at this foundational document. Many localities do not have charters; they get their authority under various statutes adopted by state legislatures which govern charter municipalities as well. The principal state statute relevant to local land use control is called the zoning enabling act and it is from that law and complementary supplemental laws that localities get their power to control the use of privately owned land within their jurisdiction.
- , the property owner showed that the local zoning law permitted only residential uses and that there was no market for residential use of his land in the neighborhood. The owner’s argument was that the zoning law, as applied to the parcel, did not accomplish a public purpose because of market conditions. In essence, the law allowed the owner no economical use of the land. Following , the U.S. Supreme Court handed down no significant decisions implicating local land use matters for the next four decades. Nectow’s claim is called an “as applied” challenge to local zoning authority because it challenged the application of the zoning law as it applied to the plaintiff’s property, while Ambler Realty’s claim is referred to as a “facial” attack, since it challenged the constitutionality of the zoning ordinance as a whole, and not specifically the application of the law to Ambler’s property.
- local clerk. Most states have laws requiring that local agency meetings are open to the public and that copies of local records be provided to the public upon request.
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Chapter 1 Introduction and Common Law Origins 51 results (showing 5 best matches)
- Municipalities adopt comprehensive plans that lay the foundation for the adoption of local land use laws. In some states, these local plans must be consistent with regional or statewide land use plans. Municipalities also adopt traditional land use laws such as zoning ordinances and standards that regulate land subdivision and site plan development.
- In most states, home rule authority is also delegated to local governments, giving them broad power to adopt laws that affect local property, affairs, and government so long as those laws do not conflict with general or preemptive state laws. States utilize a variety of methods to grant home rule powers to their localities. In most states, home rule authority is contained in the constitution. At a minimum, local home rule power authorizes localities to legislate regarding their own property, affairs, and government, except where general or preemptive state laws operate. In nearly all states, home rule authority is not deemed to prevent the state from legislating regarding legitimate state interests by guiding, directing, or preempting local land use control.
- Local governments today are empowered to adopt innovative local land use laws that promote smart growth and that create more balanced land use patterns. More particularly, municipalities in many states have used their land use authority to develop a new body of local regulations designed to protect natural resources and prevent environmental pollution. Environmental objectives can now be found in local comprehensive plans, the boundaries of conservation zoning districts can be drawn to correspond to and protect watershed areas, environmental standards can now be found in subdivision and site plan regulations, and localities can adopt stand-alone environmental laws to protect particular unique and threatened natural resources. The clear purposes of these laws are to control nonpoint source pollution and preserve natural resources from the adverse impacts of land development. Although the majority of U.S. communities have not adopted numerous and sophisticated local environmental laws...
- What is left of nuisance law now that land uses are so heavily regulated by local zoning? Does zoning trump nuisance claims? Again, it depends. In , the plaintiff homeowner brought an action to enjoin their neighbor’s use of a noise cannon to frighten birds away from their garden. The defendant had a valid permit for use of the cannon under both a state statute and the local zoning law. In awarding an injunction against further use of the cannon, the state court held that although the action was permitted by zoning law, that fact is no defense to an activity that otherwise interferes with the use and enjoyment of a particular neighbor’s property.
- Sweden enacted an early comprehensive town planning law in 1874 which made provisions for some land use planning in all of its towns and cities. Germany has a strong tradition of comprehensive planning, directed from the top down, with plans at the state, regional, and local level, and with a tradition of self-government where local authorities adopt plans and zoning to control growth around preserved historic centers, with open space retained at the periphery. Early French city planning, which emphasized infrastructure development, particularly transportation planning, was conducted primarily at the national level until 1982, when the French Parliament adopted a law that transferred significant land use planning and project approval authority to the country’s more than 35,000 municipalities.
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Chapter 2 Land Use Plans and the Planning Process 42 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...
- Since local governments are creatures of state governments, local government officials, including members of planning and zoning boards and elected members of local legislative bodies, derive their authority and powers primarily from state constitutional and statutory provisions such as the planning and zoning enabling acts. In many cases, state statutes give local legislative bodies the authority to choose to retain certain planning and zoning powers or to delegate such roles to planning or zoning boards. In addition, local governments may, at their option, establish and empower, by local law, various associated bodies, such as architectural review boards and historic review boards. Therefore, it is critical to consult applicable local zoning codes, in addition to state statutes, to determine exactly which board is responsible for various actions and the relationships among and between the various boards. Similarly, code enforcement officers are vested with certain statutorily...local
- 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
- Unfortunately, issues of corruption in the land use process arise where local officials have been convicted of accepting bribes in the form of money or other services (e.g., home repairs) in exchange for approvals of land use permits. When these situations occur, the U.S. Department of Justice, along with local law enforcement are called upon to prosecute the public officials.
- In 2008, a joint task force of the State and Local Government Law Section and the Administrative Law Section of the American Bar Association promulgated a model statute on local land use process to focus on the administrative procedures in the land use decisionmaking process.
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Chapter 12 Critical Contemporary Land Use Issues 30 results (showing 5 best matches)
- What has happened in Pennsylvania is instructive. Under previous state oil and gas law, the state courts had determined that local governments could regulate but not prevent fracking under local zoning. Following these judicial decisions, the state legislature adopted Act 13, which all but preempted local control. The Act explicitly required local governments to include fracking as a permitted use in all zoning districts. This Act, in turn, was invalidated by Robison v. Commonwealth, which held that it failed to protect neighboring property owners from harm and made irrational land use classifications. The power of municipalities to adopt comprehensive plans, to separate land uses through zoning, and the derivative rights of land owners, in the court’s view, trumped state oil and gas legislation that, on its face, preempted local regulation.
- In most states, zoning is one of several powers and responsibilities that local governments are delegated to serve local and state interests. Zoning determines how property is used, developed, and how valuable it will be; localities have the power to impose property taxes on the land they regulate and they are expected to use those revenues to fund municipal operations, provide municipal infrastructure, and carry on the business of local government, which benefits local citizens and the state in multiple ways. Given the complexity, comprehensiveness, and utility of these linked powers and duties, the judiciary is rightfully cautious about implying that state regulatory enactments, like regulating fracking, were intended by the legislature to inhibit local prerogatives. The importance of local land use regulation leads to a presumption against preemption that must be overcome to convince most state judges that, in adopting oil and gas laws, state legislatures intended to preempt
- 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.
- Because local governments control land development through legally adopted land use plans and regulations, they are integral players in the process of ensuring the sustainability of buildings and communities generally. These demographic trends are bolstered by economic realities. Because local governments operate at ground level, they are both aware of—and often motivated to rectify—land use crises; their citizens are there to urge them into action. In a world of finite resources overrun by sprawl, threatened by climate change, short on fuel, and long on greenhouse gas emissions, the law must keep pace.
- From a land use perspective, hydrofracking operations are an industrial use that would be permitted, controlled, or prohibited by local zoning where local power is not preempted by the federal or state government. The federal government does not regulate many of the aspects of the hydrofracking process. Oil, gas, and mining are heavily regulated by state governments, however, but the scope of state regulations varies greatly. Where they are not preempted, local governments have the opportunity to regulate natural gas extraction and to fill in the gaps in federal and state regulation.
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Chapter 7 Smart Growth and Other Flexible Land Use Strategies 30 results (showing 5 best matches)
- 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.
- Growth management statutes have been enacted to create fairer, more efficient, or more environmentally sound land use patterns. Much of the attention in the literature is focused on state statutes that define urban growth boundaries or that provide for state or regional plans which local comprehensive plans must consider or with which they must conform. But other approaches exist that guide or limit local land use authority in the interest of achieving better results. These include, for example, statutes that create regional land use review boards to which specified local decisions can be referred, affordable housing goals and mandates, regional agencies that exercise extraordinary power over a single area, state agency power over regional impact projects, and programs designed to obtain local compliance with one or more state growth management objectives. With continuing population pressures and the persistence of urban sprawl, it is likely that state statutes will continue to be...
- 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.
- 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,
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Chapter 6 Other Constitutional and Statutory Limits on Land Use Regulation 32 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...
- While is it impossible to catalogue all federal laws that have some type of pre-emptive effect, the Federal Railway Safety Act has been held to preempt all local railroad safety legislation (except state law in an area where the Secretary of Transportation has not issued a regulation or order, and stricter state law is necessary). See, (holding that a local ordinance prohibiting trains from obstructing streets for more than five minutes was preempted by the federal act).
- Inter-governmental conflicts may arise when state and local governments enact legislation aimed at regulating a specific area of land located on the border between two jurisdictions, or where the use may be operated by one government but located physically within the boundaries of a different government. Typically, courts adopt various multi-factor balancing tests to determine the extent to which an agency may be subject to local zoning laws. In ...lots in a particular subdivision brought an action to enjoin the State Forestry, Fish and Game Commission from using lots located in the middle of the subdivision zoned for single-family residences, as public parking for its fishing and recreation facility on the adjacent river, an activity not permitted in the single-family zoning district. The Court of Appeals of Kansas held that the State Commission is not automatically immune from local zoning and land use, and that a determination as to reasonableness should more... ...at the local...
- One aspect of local land use planning in which states have been particularly active is mineral extraction and other mining activities. The State of New York, for example, has sought to regulate mining activities throughout the state pursuant to The Mined Land Reclamation Law. The New York Court of Appeals, in , examined the preemptive nature of the law and concluded that, although the Act prohibits municipalities from enacting ordinances that directly relate to the operation of extractive mines, it does not prohibit municipalities from enacting ordinances which regulate general land use within the municipality, notwithstanding their incidental effect on mining. The court held that the town was not preempted from determining that mining should not be a permitted use of land within the town, and from enacting zoning amendments in accordance with that determination. In fact, the court asserted that such a ...York, the state agency charged with administration of the law may retain...
- As discussed above, the federal government has intervened through statutes and other regulations to limit local control over certain types of land uses. State governments may also play a significant role in limiting or restricting local decision-making control in certain areas including, but not limited to: mining, agricultural uses, group homes, day-care centers, and the siting of power plants. Examples of how states may control or impact local land use decisions follow.
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Chapter 10 Aesthetic, Historic, and Cultural Interest Protection 20 results (showing 5 best matches)
- 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.
- Besides regulating the existence of signs, billboards, and the appearance of structures, the public welfare aspect of the police power has also been relied upon by municipalities to justify the need for historic preservation district regulations. These laws have been upheld as a valid and reasonable use of the police power to achieve a legitimate end: the . Similarly, local governments in Nantucket, Massachusetts, and in the French Quarter in New Orleans, Louisiana, have created historic districts to protect the local architecture. Historic district regulations that are enacted solely for the purpose of preserving one historical structure within the district, such as the home of former President Abraham Lincoln, have also been upheld in some jurisdictions. See
- The federal government has been active in promoting landmark preservation beginning with the Antiquities Act of 1906. In 1966, Congress passed the Historic Preservation Act, and it remains in effect today. The Act authorizes the Department of the Interior to create and maintain a registry of historic places for the purpose of identifying structures and districts that are in need of preservation. Furthermore, the Act creates an Advisory Council on Historic Preservation that is responsible for advising the President and Congress on historic preservation matters, recommending measures to coordinate activities among the various levels of government, and counseling officials on how to educate the public about landmark preservation. Although the Act requires all federal agencies to consider the effect that their proposed projects may have on existing historic sites and landmarks, the law does not impose any affirmative duties on state and local officials. Furthermore, preservation is not...
- , 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 establishment of historic districts as an integral part of community development is widespread today. Local efforts have been bolstered by federal legislation, such as the National Historic Preservation Act of 1966, the Historical and Architectural Data Preservation Act of 1974, and the Archeological Resources Preservation Act of 1979, as well as state legislation, which provide for the creation of commissions and committees with functions and duties in this area.
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Preface 5 results
- 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...
- 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.
- 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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Chapter 4 Subdivision Controls and Development by Agreement 25 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...
- Some state and local governments apply different levels of review for “major” and “minor” subdivisions. These terms are defined in the local subdivision law. For example, the division of land into six or more building lots may trigger a “major” subdivision review. The minor subdivision review offers an abbreviated process for developments of less significant impact. States may also require subdivision review to be coordinated with the applicable environmental review process.
- Informally, an applicant may begin the subdivision process by simply meeting with the planning staff or other local officials to better understand the local subdivision law and to enable the local government to understand the initial scope of the project. This step is typically not required, but, in practice, it often occurs. The applicant formally begins the process by submitting a preliminary plan or plat. This document ...this includes identification of significant natural features such as streams and ponds, flood prone areas, large trees and vegetation), and public facilities (e.g., water, storm and sanitary sewers, gas, electric, cable, and fire hydrants). Local regulations seek to assure that the provision of services will be adequate to meet the needs of the new development (e.g., the capacity), that the quality of the materials used is appropriate, and that the design and materials used are compatible with the existing municipal infrastructure system (e.g., uniformity). As a...
- 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.
- Enforceability is still a largely untested area of the law with respect to CBAs in two respects: since these are private contractual agreements the local government is not obligated to approve a proposed project just because there is a CBA, nor is the government responsible for the enforcement of the private agreement. The powers and resources that community groups may or may not have to enforce the private agreement also may be uncertain.
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Appendix An Internet Guide to Land Use Research 34 results (showing 5 best matches)
- 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.
- Sabin Center for Climate Change Law at Columbia Law School
- For land use practitioners, the availability of online zoning codes can serve as models (although attorneys should always draw their own conclusions as to appropriate enabling authority and constitutionality). Second, they can provide quick access to local ordinances that are not otherwise published in a compilation and available commercially or in a law library. In addition, the posting of minutes of meetings online by municipalities can prove to be important information for attorneys challenging decisions of planning and zoning boards and local legislative bodies. In the past, this information was only available via request to the municipal clerk’s office and often required a formal Freedom of Information Law request.
- Land Use Law Center at Pace University’s Elizabeth Haub School of Law
- is part of Georgetown Law School and it seeks to advance effective climate and energy policies in the United States and serves as a resource to state and local communities that are working to cut carbon pollution and prepare for climate change. Their website offers reports, presentations and documents on topics including: clean energy, adaptation and transportation.
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Outline 8 results (showing 5 best matches)
Chapter 8 Housing and Urban Redevelopment 26 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 ( N.J. Stat. Ann §§ 52:27 D–301–329). It established the Council on Affordable Housing (COAH) to implement the statute’s fair share plan, based on an extensive statewide housing study and allocation formula. The COAH determines the fair share of each locality and reviews and certifies local 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,...
- Since local governments derive their power to adopt zoning and land use controls from the state, devices that tend to exclude various groups of households from living in the community are problematic. How can the state’s police power, delegated to local governments, be used by them to exclude such populations? Zoning provisions that require all housing to be built on large lots, or that require houses to exceed a certain size tend to produce costly housing and to exclude lower and moderate-income households. Zoning ordinances that do not permit multi-family housing can have the same effect.
- Local governments may, and in some states must, include in their comprehensive plans the consideration of regional needs, including housing, and to respond to the present and future housing needs of the community, including affordable housing. The comprehensive planning studies of the community may identify a particular housing need for senior citizens, young families, or other special population groups. Local governments in various states have used their zoning authority to encourage the development of housing for all types of households: senior citizens, middle-income families, homeless families, employees of the municipality, volunteer firefighters, farm workers, and first-time homebuyers.
- , a landowner attacked as exclusionary a suburban town’s zoning law that contained no provision for the development of multi-family housing in any zoning district in the jurisdiction. The Court of Appeals found the town’s law to be exclusionary, stating that “[t]he primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s available land.” The court held that “in enacting a zoning ordinance, consideration must be given to regional [housing] needs and requirements” and that “[t]here must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met.” The case held that developers have standing to challenge zoning laws that exclude more affordable types of housing since their rights cannot realistically be separated from the rights of nonresidents, in search of a comfortable place to live.
- The principal federal program relied on by communities for urban redevelopment today is the HUD-administered Community Development Block Grant Program (CDBG), through which the federal government provides general funds to state and local governments to be used to improve housing and community conditions for low-and moderate-income persons and families. Other important programs include the HOME Investment Partnership Program, through which state and local governments are eligible for grants to be used for the exclusive
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Chapter 5 Fifth Amendment Limits on Land Use Regulations 27 results (showing 5 best matches)
- , the Supreme Court held that the Fourteenth Amendment incorporates the Fifth Amendment protections of property and applies them as limitations on state law as well as local governmental regulations, since local governments are considered legal instrumentalities of the states. All local zoning, subdivision, site plan, and other land use regulations, under this analysis, are subject to and limited by due process and the takings clause. This chapter explores the extent to which these critical clauses limit the authority of government to adopt and enforce land use regulations.
- The Fourteenth Amendment passes these proscriptions on to the states and the local governments to which state legislatures have delegated the authority to adopt and enforce land use regulations. It specifies that:
- 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.
- village’s zoning board. Rather than pursue these local variances, the landowner challenged the denials as a regulatory taking. The court noted that “[o]ur courts have long recognized that a property interest must exist before it may be taken.” A taking claim may not “be based upon property rights that have already been taken away from a landowner in favor of the public.” “[R]egulatory limitations that inhere in the title itself will bind a purchaser (citing
- . San Remo Hotel challenged a San Francisco ordinance that required a “conversion fee” to change hotel rooms from residential use to occupancy by tourists. The California Supreme Court held that there was no takings based on both the California and U.S. constitutions and the hotel plaintiffs appealed. The Supreme Court affirmed noting that “state courts are fully competent to adjudicate constitutional challenges to local land-use decisions.”
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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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- 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.