Land Use Planning and Development Regulation Law
Authors:
Juergensmeyer, Julian Conrad / Roberts, Thomas E. / Salkin, Patricia E. / Rowberry, Ryan Max
Edition:
4th
Copyright Date:
2018
25 chapters
have results for local law
Chapter 4. ZONING BASICS 119 results (showing 5 best matches)
- Public utilities are often exempt from local zoning control. If governmentally owned, they may be immune from local zoning as are other governmental uses. If privately owned, the state law that grants the utility its franchise and regulates its operations may preempt local law. States usually deem exemption from local law necessary to assure that the utility can meet its service obligations, which may be regional, state, or national in character. While local authorities and neighbors may not want an electric substation or oil pipeline in a residential area, the desire for efficient provision of service may compel insulating the utility from local law. Courts are often bothered by the scenarios they foresee if local law were to apply. As the Florida Supreme Court said in a case involving a local government’s attempt to require an electric utility to underground its lines: “If 100 such municipalities each had the right to impose its own requirements with respect to installation of...
- The supremacy clause of the constitution prevents the application of state or local zoning laws to federally operated land uses. Federal regulatory schemes also may preempt local law. The federal government, of course, can consent to be governed by local law. Where it recognizes the desirability of some local control, it generally does so by directing federal agencies to consult with local authorities. The agency, though, retains final decisionmaking power. Federal urban land use policy, for example, requires that agencies cooperate with local authorities by directing that actions taken “shall be consistent with zoning and land use practices and with the planning and development objectives of local governments and planning agencies.”
- Where state law is ambiguous or silent, courts must determine whether state law impliedly preempts local law. While generalizations may be imprudent for an issue that turns on non-uniform state regulatory regimes, the cases seem to weigh in favor of implied preemption in the public utility area. This tendency is in contrast to the reluctance to find preemption of local law in many other areas that the state regulates.
- Where state legislation exists, local governments face questions as to whether they can regulate marijuana sales, and, if so, how they can go about doing it. Beyond state controlled licensing requirements, local zoning issues arise such as zoning to prohibit such use, designating zones where such use is allowed, defining the use, establishing a minimum distance from sensitive areas, and whether to allow home occupations. Local government and neighbors of marijuana shops may also explore the availability of nuisance law as an alternative tool to challenge such uses.
- The superior sovereign, by virtue of that status, is immune from control by subordinate units of government. The supremacy clause of the constitution prevents the application of state or local zoning laws to the federal government. Likewise, local zoning does not bind a state. Courts presume that when the state delegates police power functions to local governments, it does not intend to waive the immunity it has as a sovereign. Thus, the delegated power cannot be used against the state.
- Open Chapter
Chapter 5. ZONING PROCESS: OBTAINING OR RESISTING DEVELOPMENT PERMISSION 157 results (showing 5 best matches)
- If a federal regulatory system preempts local regulation, the federal courts may grant injunctive relief against inconsistent local regulations. Preemption may be express or implied from statutory language, from the pervasiveness of the federal regulatory system, or from conflict between federal law and local regulation. the Court found that the California Coastal Act was not preempted by federal law because it found no intent by Congress to preempt state or local control. The Court was aided in this finding by noting that the state law at issue was an environmental one, as opposed to land-use statute. While there is an unclear distinction between an “environmental” and a “land use” law, the suggestion that state and local use laws will be more likely to be found preempted in the former instance, creates, some suggest, “a substantial opportunity to state and local governments [to] recharacterize their regulatory processes to shade them toward environmental regulation.”
- The most frequent objection to the issuance of special permits is that the local legislative body failed to provide adequate standards for guiding administrative discretion, violating state law or due process.
- When a legislative decision is found invalid, a court will ordinarily enjoin the operation of the legislation but will not tell the legislative body what new or alternative law it needs to pass deeming such action an “unwarranted intrusion into the legislative function.” The risk of this approach is that it allows the local government to avoid any meaningful effect of the court’s decision by enacting a new law that continues to frustrate the landowner’s desires in a slightly different fashion. Damages may be available, particularly under the federal civil rights statutes.
- . Preemption of local law by federal and state law is discussed in more detail, supra § 4:24.
- “Community benefits agreements” (CBAs) involve direct private negotiations between the developer and representatives of affected neighborhoods or communities. To mollify potential adversaries and buy support, the developer may scale down a project or offer amenities to the community that the local government would typically be unable to bargain for in the land approval process. There are dozens of examples of successful CBAs across the country, yet they are still not in widespread use. Challenges, such as identifying who has authority to speak for the community and whether the local government will even approve the application with or without the CBA may be uncertain. In addition, whether the agreements are enforceable and by who is still an untested area of the law as these are private contractual agreements and therefore 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...
- Open Chapter
Chapter 6. EXCLUSIONARY AND INCLUSIONARY ZONING 53 results (showing 5 best matches)
- The FHA has had a dramatic effect on local regulation of land use, giving courts the power to override many traditional zoning laws. One study found that those challenging local law under the FHA have won 90% of the cases.
- Federal law now preempts state or local laws regarding safety standards for manufactured housing.
- Federal law also limits exclusionary practices. The National Manufactured Housing Construction and Safety Standards Act expressly prohibits states from enacting safety standards that differ from federal ones. Zoning ordinances that determine the permissibility of siting by reference to state or local building or safety codes that differ from the federal standards are preempted. Under this provision, a local law that required manufactured homes to have a roof snow load of 40 pounds per square foot was preempted by the federal standard of 20 pounds per square foot. Courts have also held that a special charge for utility hookups of residential dwellings not meeting local energy efficiency standards was not preempted by federal law since the charge was not a construction standard, but a method to recover additional costs of servicing inefficient dwellings.
- From the opposite perspective, where state legislation encourages affordable housing, neighbors challenging permits for affordable housing projects may face more stringent standing requirements. For example, a neighbor could not rely on the meaning of “person aggrieved” used in cases construing local zoning disputes to establish standing under a state statute. Thus, for a permit issued under a state law designed to overcome local opposition to affordable housing, an allegation of “diminution in value” did not confer standing. The plaintiff had to show that she suffered an injury that the affordable housing law protected.
- Historically, local governments have been free to limit cemetery location as they would any commercial use. In an early case, the Supreme Court upheld an ordinance that totally precluded burials in a city. and this may lead to the preemption of local law.
- Open Chapter
Chapter 10. CONSTITUTIONAL LIMITATIONS ON LAND USE CONTROLS 184 results (showing 5 best matches)
- The coverage below deals with limitations on the freedom of local government to regulate land use that may arise from federal antitrust laws based on the commerce clause and with limitations on state and local laws that affect the interstate shipment of waste that arise from the negative or dormant commerce clause.
- The siting of waste disposal facilities virtually assures controversy. Potential neighbors who do not want them in their “backyards” will likely protest zoning and siting decisions on various state law grounds. In turn, the regulated user may also object to restrictive local laws. Generally, however, subjecting facilities to special permitting processes and imposing distance controls, two common features of local law, are valid. Constitutional difficulties arise when state or local government choose the parochial options of excluding waste facilities, discouraging the importation of waste by charging higher fees, or in the reverse, hoarding waste for the benefit of local business. When government opts for one of these paths, the disadvantaged businesses have a potent ally in the dormant commerce clause.
- went on to hold that the immunity existed even if the local action exceeded the delegated authority. Under the law of most states, while it is recognized that zoning may affect competition, zoning for the purpose of controlling competition is illegal. For antitrust purposes, however, the delegated authority is interpreted more broadly so as to minimize federal interference with state law. Thus, even if the City of Columbia had enacted the billboard law with the intent of suppressing competition in violation of state law, it would not have mattered.
- The commerce clause is both a source of power for federal land use controls and a negative restraint on state and local land use laws. Such federal laws as the Surface Mining Control and Reclamation Act, based in part on the commerce clause, is a direct limitation on state and local government’s land use regulation of religious uses. Commerce clause-based acts promoting communications functions, such as satellite dishes and cellular telephones, indirectly affect land use in that they partially preempt local zoning.
- An individual government official’s actions are “under color of state law” when the government official acts within the scope of his or her duties. An official’s actions are also actionable if taken “while clothed with the authority of state law.” As stated by the Supreme Court, “[m]isuse of power, possessed by virtue of state law and made possible because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.’ ” In addition, activities pursued under a municipal ordinance are sufficient to meet the “under color of state law” requirements. Thus, state or local officials act “under color of state law” when they either act within the scope of their duties or misuse power granted to them by the state.
- Open Chapter
Chapter 12. AESTHETIC REGULATION AND HISTORIC PRESERVATION 80 results (showing 5 best matches)
- But preservation law has outgrown its local law origins and now has its own distinctive provisions-pertinent state and federal administrative procedures, and indigenous regulatory scheme, and special tax laws to name only a few. As a result, the days when preservationists had only to know how to run the local historical museum are gone. Today they must know local zoning and land-use law, how the federal income tax code works, what the state enabling law provides, and what the U.S. Supreme Court thinks about preservation ordinances and private property.” Id. at xxii.
- ‘Just what is “preservation law” ’? It is a collage, cutting across and drawing from several other established areas of law: land use and zoning, real property, taxation, local government, constitutional, and administrative. In many ways preservation law, particularly at the local level, is closest to land use and zoning; the rules are very similar. For example, the standards that dictate governmental behavior in enacting and administering zoning ordinances are virtually identical to those applicable to local landmark and historic district laws, and the constitutional doctrines governing regulation of private property are similar.
- For an overview of historic preservation law at the local government level prepared by the National Trust for Historic Preservation, see Julia H. Miller, A Layperson’s Guide to Historic Preservation Law: A Survey of Federal, State, and Local Laws Governing Historic Resource Protection (NTHP 2000, rev. 2008).
- For an overview of federal historic preservation law prepared by the National Trust for Historic Preservation, see Julia H. Miller, A Layperson’s Guide to Historic Preservation Law: A Survey of Federal, State, and Local Laws Governing Historic Resource Protection (2004).
- , 394 S.C. 1, 714 S.E.2d 277 (2011) (The South Carolina Supreme Court noted that state law permits local governments to mandate compliance of docks and walkways with local laws and regulations, including those regarding aesthetic concerns).
- Open Chapter
Chapter 1. AN INTRODUCTION TO LAND USE PLANNING AND CONTROL LAW 71 results (showing 5 best matches)
- The codes of hundreds of municipalities around the country are available through the site State and Local Government on the Net, . The federal government maintains links to state and local law:
- published four times a year by the Section of State and Local Government Law of the American Bar Association;
- The Section of State and Local Government Law of the American Bar Association has a web site,
- Planning and land use control law have always been recognized as closely interrelated. Unfortunately, that recognition until recently was more theoretical than actual and plans had few legal consequences. The recent advent of statutes requiring state, regional and local planning and the formulation of the consistency requirement, have created planning law as distinguished from planning theory. Since one of the principal tenets of planning law is that planning should precede any and all land use regulations this chapter is strategically located as the first substantive chapter. Planning principles are discussed in subsequent chapters in relation to particular land use control devices.
- See John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground (2014); Nolon, An Environmental Understanding of the Local Land Use System, 45 Envtl. L. Rep. News & Analysis 10215 (Mar. 2015).
- Open Chapter
Chapter 9. GROWTH MANAGEMENT AND SMART GROWTH 263 results (showing 5 best matches)
- The failure of many state and local governments to implement growth management and smart growth programs adequate to solve the sprawl oriented problems of major metropolitan areas has resulted in a resurgence of interest in and proposals for regional governments with planning and development regulation authority on a metropolitan wide basis. A leading local government law expert has envisioned this development thusly:
- Undependability of grant sources can be a serious cause of revenue shortages in local government. Federal and state funding policies can change quickly; and although federal aid can be a useful source of funding, it can also lead a local government to over commit itself, only to find that the grants it anticipated are not forthcoming because of a change in the political or fiscal climate, leading to a change in the law or in authorization or appropriation levels. If the grants are forthcoming, they may not come when they were supposed to, or the amount may be computed conservatively or inequitably.
- The first generation of land banks—located in the five metropolitan areas of St. Louis, Cleveland, Louisville, Atlanta, and Flint, Michigan—developed with a common purpose of converting abandoned, tax-delinquent properties to productive use in areas in where there was a significant lack of market access to these properties due to burdensome property tax foreclosure laws. Common foreclosure laws requiring public auction tax sales and mandating minimum bids hindered the transfer of properties for which the tax liens exceeded fair market value and encouraged sales to private investors who often failed to invest in improvements or pay subsequent years’ taxes, while state law often required that properties not sold at auction defaulted to local government control. ...that the local governments were left with ownership of the most costly, unmarketable properties due to the significant delinquent taxes owed and the generally low market value attributable to the citywide economic decline....
- Growth management regulation in California has been more at the local government and regional entities level than at the state level. State law requires every city and county to develop a comprehensive plan addressing eight elements—land use, circulation, housing, conservation, open space, noise, safety, and environmental justice. The law, however, does not specify a remedy for failure to comply, leaving courts wide discretion in applying legal or equitable remedies. California recently updated the State General Plan Guidelines that are meant to guide local governments as they develop comprehensive plans.
- Citizen enforcement of the planning laws will be more difficult. If a third party challenger with standing appeals a local plan amendment, the challenger will have to overcome the very difficult fairly debatable standard.
- Open Chapter
Chapter 11. REGULATION AND PROTECTION OF ENVIRONMENTALLY SENSITIVE LANDS 80 results (showing 5 best matches)
- In the absence of a clear directive from the state, a number of local governments around the country have regulated and in some cases banned fracking. Where the state has in place a law regulating fracking, the question of preemption of local regulation arises.
- Several states have passed laws directing local governments to incorporate the impacts of climate change in coastal planning. After Hurricane Sandy, the New York Senate passed a bill calling for the development of model local laws addressing climate change, and requiring consideration of sea level rise in land use planning. In contrast, lawmakers in North Carolina have expressly voted to ignore studies predicting accelerated sea level rise, limiting the ability of local planning authorities to mitigate sea level impacts.
- In some jurisdictions bans enacted by referenda were struck down on preemption grounds. For example, in one case a ban was enacted in 2012 by voters in Longmont County, Colorado and the question before the court was whether the rules of the Colorado Oil and Gas Conservation Commission (“Commission”), a body created by the Oil and Gas Conservation Act, preempted such local ban. In finding that the local ban is preempted by state law, the court said, “Longmont’s ban on hydraulic fracturing creates a patchwork of oil and gas extraction methods that inhibits what the General Assembly has recognized has a necessary activity in the Oil and Gas Conservation Act and it impedes the orderly development of Colorado’s mineral resources.” The court of ..., whether there is a need for statewide uniformity of regulation; ii) whether the municipal regulation has an extraterritorial impact; iii) whether the subject matter is one traditionally governed by state or local government; and iv) whether...
- From a practical perspective, conditional use permits pose problems for local government. Under the new statute, fracking had to be allowed in all zoning districts. The only power left to local governments was to impose setback requirements in limited areas. Municipalities challenged the new law on state constitutional grounds. In
- These tensions cannot be resolved in winner-takes-all litigation or advocacy in in legislative offices and chambers. They require a concerted effort to negotiate a process and create a framework for decision making that provides a role for both local and state agencies and their stakeholders. The result of such a process might be an agreement by the state to promulgate model zoning ordinances, such as a gas exploration overlay zone, and provide technical assistance to localities in how to adapt such ordinances to their local circumstances. It may be that communities adopt total bans in part because they do not have access to best practices such as these or the understanding of both the law and science necessary to employ them. State agencies that are investing time and money in creating their own regulatory regimes can cost effectively provide such technical assistance to localities as part of a cooperative state-local approach to controlling local impacts and promoting regional and...
- Open Chapter
Chapter 2. COMPREHENSIVE PLANS AND THE PLANNING PROCESS 70 results (showing 5 best matches)
- An overall definition of “comprehensive plan” has become necessary. The comprehensive plan is generally defined as an official public document preferably (but often not) adopted as law by the local government as a policy guide to decisions about the physical development of the community. Usually it sets forth, in a general way, using text and maps, how the leaders of local government want the community to develop in the future. The length of the future time period to be addressed by a comprehensive plan varies widely from locale to locale, and is often set by state legislation enabling or requiring local governments to plan.
- As future opinions illuminate the extent of quasi-judicial land use decision making, the courts seem likely to confront and clarify the procedural responsibilities of local governments in reaching such decisions. At present, these procedural requirements are not well-developed in state law.
- Courts in states with mandatory local comprehensive planning and legally enforceable consistency requirements have begun to reexamine the traditional rules and procedures by which land use decisions are reached and judicially reviewed. Traditionally, courts have viewed zoning decisions as legislative decisions, subject to deferential review under the fairly debatable rule. However, there is growing judicial recognition that local government decision-makers are not always equivalent to state and national legislatures, particularly where local governments are statutorily required to apply the standards and policies of the local plan in reaching land use decisions. Challenges to the consistency of those decisions with the comprehensive plan have prompted some courts to characterize certain local land use decisions as quasi-judicial, subject to greater judicial scrutiny than legislative decisions.
- mandating that development requiring a building permit, subdivision approval, or open space zoning be consistent with the local open space plan. Curtin & Talbert, Curtin’s California Land Use and Planning Law 18 (26th ed. 2006). See, generally, the Florida Environmental Land and Water Management Act of 1972,
- Still another form of consistency, appearing with greater frequency, is the type mandated between local, regional, state, and even federal This has caused a certain amount of controversy as some regard it as an affront on local land use autonomy. Although the purpose of this form of consistency is to assure that individual local and regional plans operate in a rational and coordinated manner, the effect has been to place even greater control over local land use policy in the hands of state government.
- Open Chapter
Chapter 14. NUISANCES 37 results (showing 5 best matches)
- While comprehensive zoning has decreased reliance on nuisance law, it remains important. In the first place, some rural areas remain unzoned, leaving nuisance law as the only land use control available. Furthermore, nuisance law serves as a supplementary tool. If the local legislative body fails to deal with incompatible development through zoning, persons may seek protection through nuisance law. Finally, the common law of nuisance is a critical determinant in defining property for the purposes of constitutional protection and the need of government to pay compensation when it overregulates land use.
- Local governments may be able to pass nuisance prevention ordinances without fully complying with the requirements imposed on zoning enactments in those states that grant broad police powers to local governments. However, if state zoning enabling statutes use broad language in describing the types of land use controls authorized by the statute, an ordinance exercising such type of control may arguably be required to comply with zoning procedures even though it does not purport on its face to be a zoning law.
- The flip side of the question is whether mere evidence of a violation of a zoning ordinance is a nuisance per se. It is sometimes said that the legislature cannot declare an activity to be a nuisance that is not in fact a nuisance. Yet, it is a common practice of state and local legislatures to declare that the violation of a land use regulation, such as a zoning ordinance or building and safety code, constitutes a nuisance. For example, the Michigan enabling statute for municipal zoning provides that “* * * uses violating any provision of local ordinances or regulations * * * are nuisances per se.”
- The statutes also may bar local government from enacting zoning laws that would force the closure of an existing agricultural operation.
- through its police power, can declare an activity to be a public nuisance that was not a public nuisance at common law, or it may rely on what was a public nuisance at common law. Further, government action in the prosecution of a statutory or common law public nuisance is subject to constitutional limitations.
- Open Chapter
Chapter 3. LAND USE CONTROLS: HISTORY, SOURCES OF POWER, AND PURPOSES 40 results (showing 5 best matches)
- Sands, Libonati, and Martinez, Local Government Law § 4:01
- Though the source of power to control land use in most states is by way of a zoning enabling act, the power may come from other sources. In a number of states, the state constitution provides for home rule to distribute state power to local governments. Home rule power is also sometimes granted by legislation. Land use control power can also be implied from a law generally authorizing the exercise of the police power by local government. Rarely, land use control power may also be based on a doctrine of inherent powers, meaning that the mere creation of a political subdivision confers power to do the kinds of things local governments need to do, such as zone.
- While local governments lack inherent powers, in many states a degree of independence exists by virtue of home rule powers conferred by state constitution or state statute. for example, power to make and enforce local regulations is interpreted as authorizing zoning, whereas in New York, the constitutional power of municipalities to enact local laws does not authorize zoning.
- Even where zoning power is authorized by home rule, it only applies to local matters not in conflict with state law. Local zoning measures often implicate substantial state interests. Thus, the Colorado Supreme Court rejected, as a home rule measure, an affordable housing mitigation ordinance that addressed a matter of mixed local and statewide concern.
- Public land use controls, including zoning, subdivision regulation, building codes and growth controls, are exercises of the police power. Though broad, this power to enact laws to promote the health, safety, morals, and general welfare is limited by the federal and state constitutions. State legislatures can delegate their power to regulate land use and by and large have done so. In the early years, almost complete power was delegated to local governments, but over the past few decades, a number of state legislatures have limited local rule and instituted statewide controls.
- Open Chapter
Chapter 13. AGRICULTURAL LAND PROTECTION AND PRESERVATION 90 results (showing 5 best matches)
- At the current time, urban agriculture is largely affected only by local government land use regulations The act authorizes a Community Food Projects Competitive Grants Program which aims to put funds in low income communities that have difficulty accessing healthy and nutritious food. State laws address the local movement in a variety of ways. California also authorizes local governments to establish Urban Agriculture Incentive Zones “for the purpose of entering into enforceable contracts with landowners . . . for the use of vacant, unimproved, or blighted lands for small-scale agricultural use.” Under Illinois procurement law by 2020, 20% of all food purchased by state agencies and state owned facilities must be local farm food. A Local Food, Farms and Job Council oversees the efforts to achieve this goal. The state
- Another relevant development in the land use control area is the requirement via state legislation that all units of local government formulate and adopt comprehensive plans that meet state specified standards. The important implementation mechanism in such statutes is the consistency requirement, whereby the state statute requires all subsequent land use regulations by local governments to be consistent with local, and regional or state, if any, comprehensive plan.
- Property that the local government has designated, in the local government’s comprehensive plan, zoning map, and future land use map, as land that is to be developed for industrial, commercial, or residential purposes, and at least 75% of such property is existing industrial, commercial, or residential development;
- A number of cases have held that state or regional efforts to protect farmland from the intrusion of urban uses preempt other kinds of local decision-making. For example, in one case, the state’s right to farm law was held to preempt municipal land use authority over a farming operation. Similarly, it has been held that the Growth Management Plan, under which an area had been designated as agricultural, prevented a change in use of that land from agricultural to athletic fields and recreational use.
- Perhaps the greatest role local government comprehensive plans can play is pulling it all together. Professor Arthur C. Nelson has observed that agricultural land preservation works best, and may work only, if the best elements of all techniques are choreographed. A local comprehensive plan must state the public interest in preserving such land, which is accomplished usually by citing the economic contributions and taking notice that because urban and agricultural land uses are fundamentally incompatible they must be clearly separated. Zoning is used to provide for the market demand for rural lifestyles but in locations and in a manner that does not interfere with agricultural activities that are expected of the remaining agricultural area. Property taxation based only on agricultural productivity and not urban uses is applied to those areas that are subject to exclusive agricultural zoning; the logic would be sensible since these lands would be for most practical purposes removed...
- Open Chapter
Chapter 8. BUILDING AND DEVELOPMENT CODES 46 results (showing 5 best matches)
- In California, the administrative code allowed a city or county to determine changes or modifications in the state’s building requirements where appropriate because of local conditions. “Local conditions” had been construed rather loosely, until 1977, when the California attorney general defined local conditions as those which could be broadly labeled as geographical or topographical, excluding local political, economic or social concerns as destructive of any attempt to achieve statewide uniformity. Code uniformity reduces housing costs, increases the efficiency of the private housing construction industry and helps meet housing needs of the state. Uniform codes are generally based on professional expertise, research and testing not routinely available to local agencies. Evidence of the desirability of uniformity can be seen in the development of model codes and their subsequent adoption as law by state legislatures.
- Federal laws such as the Americans with Disabilities Act (the “ADA”) have imposed accessibility requirements on certain types of housing. However, these federal laws do not apply to the private, single-family homes where a majority of seniors live.
- A Yellow Light For “Green Zoning”: Some Words of Caution About Incorporating Green Building Standards into Local Land Use Law, 43 Urb. Law. 949 (2011)
- Although most promulgation and enforcement of building and housing codes has been done at the local level, state and federal governments, through legislation and responsible administrative bodies, have played a role in causing the marked increase in the number of building and housing codes enacted by local governments.
- The Uniform Building Code, the Southern Standard Building Code, and the Basic Building Code were regional in effect, though to delineate the boundaries one would need to refer to individual state and local laws. The Southern Standard Building Code, for example, was generally used in Florida, Georgia, Alabama, South Carolina, North Carolina, Virginia, Tennessee, Mississippi, and Texas, and the Uniform Building Code sponsored by the International Conference of Building Officials was used in California.
- Open Chapter
Chapter 7. SUBDIVISION AND PLANNED UNIT DEVELOPMENT CONTROL LAW 128 results (showing 5 best matches)
- Required dedications as a prerequisite for subdivision plat approval were the first land use regulations developed to shift the capital expense burden from local governments to the developer and new residents. Dedication involves a conveyance of an interest in land to the government for a public purpose. Dedications required under subdivision regulations should be distinguished from common law dedications. Common law dedication involves an offer to dedicate and a corresponding acceptance by a local government. Under common law dedication a developer is estopped from later questioning the acceptance. In subdivision regulation dedications, however, questions of legislative authority and constitutionality arise.
- They present numerous problems to local governments including public health and safety issues in addition to their negative economic impact on land values and tax revenues. Many states and local governments have adopted legislation and programs that seek to alleviate their negative effects. These laws and programs seek to address both existing uncompleted or abandoned developments and the prevention of future “zombies.”
- Courts have also held that local government authority to require conformance may be inferred from the general purposes to be served by subdivision control regulation. Where the enabling legislation is silent on the relationship between the two types of controls, the local regulations often require that plats comply with local zoning.
- some local governments include an additional preliminary step referred to as a pre-application conference. At the conference the local agency or its staff will familiarize the applicant with the subdivision regulations and answer general questions. At the same time the applicant will provide the agency with the basic idea of the proposal.
- Many states set time limits within which the local agency must act on either preliminary or final plats. Approval of the preliminary or final plat, however, does not constitute acceptance by the local government of the dedicated improvements. Such acceptance, and the responsibility for maintaining the improvements, occurs when the local government makes a formal decision to accept.
- Open Chapter
Table of Contents 34 results (showing 5 best matches)
Chapter 15. PRIVATE LAND USE CONTROLS 18 results (showing 5 best matches)
- , 379 Fed. Appx. 636 (9th Cir. 2010). See also Siegel, The Promise of a Public Commons in New Communities in the United States: Toward a Qualified Constitutional Right of a Subdivision Developer to Dedicate Streets and Parks to a Municipality as a Means to Challenge Local Government Policies Requiring Privatization of New Subdivisions and as a Means to Ensure Public Streets and Parks in New Communities, 29 J. Land Use & Envtl. L. 277, 336, n. 38 (2014). Siegel argues for the recognition of a qualified constitutional right of a developer of a community to dedicate streets and parks to the local government. In contrast to the common law of voluntary dedication, he argues that the government be compelled to accept the dedication. The property dedicated would then be subject to the First Amendment, as it is now owned by the government.
- where the Court held that the First Amendment applied to land owned by a company that had assumed virtually all of the responsibilities of a local government. The Court, however, has been strict in applying the property be used as the functional equivalent of a local government.
- More than 60 million people live in residential communities subject to private restrictions. The use limitations imposed by these restrictions, which may be quite invasive, are enforced by property owners’ associations whose powers resemble those of local governments.
- The label “conservation easement” has grown to be the most commonly used term, but the enforceability of the arrangement, regardless of labels, may still turn on how a court views the matter in light of the common law rules noted above. To promote use of conservation efforts, several states have passed statutes dispensing with the common law requirements. A North Carolina statute, for example, provides that:
- In 1960, there were 500 associations in the United States. By 2014, there were more than 323,000 with 63 million residents, or about one in five Americans. In 2001, there were reportedly 231,000 community associations in the country, compared 130,000 at the end of the 1980s, and 500 in 1965. See Siegel, The Promise of a Public Commons in New Communities in the United States: Toward a Qualified Constitutional Right of a Subdivision Developer to Dedicate Streets and Parks to a Municipality as a Means to Challenge Local Government Policies Requiring Privatization of New Subdivisions and as a Means to Ensure Public Streets and Parks in New Communities, 29 J. Land Use & Envtl. L. 277, 279–80 (2014). See also Franzese,
- Open Chapter
Table of Cases 2 results
- East Bay Asian Local Development Corp. v. State of California
- Declaratory Ruling to Clarify Provisions of Section 332(C)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, In the Matter of Petition for
- Open Chapter
Summary of Contents 3 results
Chapter 16. THE POWER OF EMINENT DOMAIN 5 results
- As sovereigns, the federal and state governments possess the inherent power to take property for public use. Local governments possess no inherent eminent domain power, but they are generally delegated the power by state legislatures. While many courts strictly construe delegations of the power to condemn,
- Courts and commentators have long debated the relationship between the police power and the power of eminent domain. Most theoreticians see them as distinct. The police power is a power of regulation while the power of eminent domain is one of the taking, seizing, or conscription of private property for public use. Yet, the course of the law has been to merge or blur these regulatory and acquisitory powers.
- See Julius L. Sackman, 2A Nichols’ The Law of Eminent Domain, §§ 7.01[3] to 7.01[5]a (3d rev.ed.1995).
- Montague, The Circuitous Route Taken to Deny Property Owners Damages in Access Cases: Where Has All the Fairness Gone?, 32 Urb. Law. 523 (2000)
- The core of federal constitutional law found in
- Open Chapter
Title Page 6 results (showing 5 best matches)
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 Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Open Chapter
Dedication 1 result
Preface 1 result
- This hornbook owes its origins to Hagman, Urban Planning and Land Development Control Law originally published in 1971. Its author, Professor Donald Hagman, was an important figure in the land use planning and control field during the 1960s and 1970s as the field moved into its modern era. After Don’s tragic and untimely death in 1982, Professor Juergensmeyer began the preparation of a second edition, which was published in 1986. Those interested in Professor Hagman’s many accomplishments may wish to read the dedications to him at 29 UCLA Law Review 772 (1982).
- Open Chapter
- Publication Date: April 30th, 2018
- ISBN: 9781634593069
- Subject: Land Use
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This Hornbook introduces the fundamentals of land use planning and control law. Subjects covered include the planning process, zoning, development permission, subdivision control law, and building and housing codes. Discusses constitutional limitations and the environmental aspects of land use controls. Explores aesthetic regulation, historic preservation, and agricultural land protection.