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Introduction to Law

Government Control of
Zoning & Land Use
Law of Waste
• When the ownership of land is divided between an
owner of the possessory estate and an owner of
future interest, a problem often arises as to the
extent of the privilege of the owner of the
possessory estate to ‗change‘ the premises over the
objection by the owner of the future interest.
• The one in possession is forbidden such action as
will diminish the market value of the other interest;
and he be required to act in the maintenance of the
property by the payment of current charges and the
prevention of its deterioration.
Law of Nuisance
• Public nuisance includes a great number
of interferences with the comfort, moral
standards, health, safety, and
convenience of the community.
– Discharge of fumes
– Explosives in public place
– Offend public morals
– Interfere with comfort
– Upset public convenience
– Violate criminal statute
• A private nuisance is an interference with
the use or enjoyment of land, other than
by direct physical invasion or trespass.
Unlike a public nuisance, a private
nuisance normally only affects a limited
number of landowners and typically
involves a dispute between adjoining
landowners.
Eminent Domain
• Government may control land in a variety
of ways.
• Eminent domain – the power to ‗take‘
private property for public use (or for a
public purpose) without the owner‘s
consent.
• May be delegated.
• Just compensation must be given
Control of Land Use by Zoning

• In urban areas the most important form of


governmental land use control is zoning.
• Zoning is an extension of the concept of
public nuisance by legislation.
• In 1916, New York City was the first
American municipality to adopt a
comprehensive scheme of building and
land use regulations based upon the
creation of a number of districts or zones.
• The regulations were prospective in their
operation, and were intended to supply a
rational basis for future building
development in New York City.
Euclid v. Ambler Realty Company
• The US Supreme Court found that the
general exclusion of ‗all industrial
establishments‘ from all but two of the six
‗use‘ districts created by the Euclid zoning
ordinance was clearly a reasonable
exercise of the police power, relying
heavily on the analogy to the law of
nuisance, ‗although some industries of an
innocent character might fall within the
prescribed class.‘
Zoning to Control Land Uses &
Building Types
• Zoning Ordinances divide the relevant
area – either a municipality or a county
into two or more districts and prescribe
‗use,‘ ‗bulk,‘ and ‗area‘ or ‗density‘
regulations for each district. The
ordinance includes a zoning map which
delineates the various districts, and the
text of the ordinance sets out the
regulation applicable in each district.
Belle Terre v. Boraas
• Government may use its power ―to lay out
zones where family values, youth values,
and the blessings of quiet seclusion and
clean air make the area a sanctuary for
people.‖
• If the zoning ordinance excludes a type of
housing designed to meet the needs of
‗low‘ and/or ‗moderate‘ income households
– e.g., mobile homes or high-density
apartments – such exclusion is likely to be
held invalid.
• Zoning is a system of land use regulation
exercised by local governments and is
sometimes referred to as zoning planning.
Zoning regulations govern the types of
activities that are acceptable on particular
lots
• The primary purpose of zoning is to
segregate uses that are thought to be
incompatible; in practice, zoning is used
as a permitting system to prevent new
development from harming existing
residents or businesses. Zoning is
commonly controlled by local governments
• Most zoning systems have a procedure for
granting variances (exceptions to the
zoning rules), usually because of some
perceived hardship caused by the
particular nature of the property in
question.
• Zoning codes have evolved over the years
as urban planning theory has changed,
legal constraints have fluctuated, and
political priorities have shifted. The various
approaches to zoning can be divided into
four broad categories: Euclidean,
Performance, Incentive, and Design-
based.
• Zoning ordinances and regulations are
laws that define and restrict how you can
use your property.
Why Zoning Is Such a Big Issue?
• Zoning laws come into play on every single real
estate development, regardless of how big or
small.
• One zoning use is typically not compatible with
another. For example, a commercial building
usually cannot be constructed on property that's
zoned for residential uses.
• If you buy open ground to build your dream
house that is in an agricultural zoning, you may
not be able to build it without a change in the
zoning.
• Getting the zoning changed on property is
a very difficult process. It requires a
process of giving public notice and then
having a variance approved by
government agencies that oversee
enforcement of the zoning plan.
Zoning Restrictions
Use requirements refer to how property can
be used. Typical zonings categories include:

• Residential
• Commercial
• Industrial
• Agricultural
• Recreational
Use Restrictions

• The height and overall size of buildings


• Their proximity to one another
• What percentage of the area of a building
lot may contain structures
• What particular kinds of facilities must be
included with certain kinds of uses
Bulk Requirements

• The height and size restrictions on


buildings including the number of stories in
a building.
• The square feet of space which a building
provides.
• The percentage of area it covers on a
building lot.
• The minimum lot size requirements, if any.
• The setback and side-yard
• Requirements of a zoning ordinance refer
to the distance between the front and back
property lines and the distance from the
side property lines.
Subdivisions
• Land is divided up into legal parcels. If you own
land and want to divide it up, you have to go
through an authorization process to create new
legal parcels.
• At a minimum, these rules would include
requirements that a developer prepare a site
plan or a subdivision map, which is a
comprehensive map showing the planned use of
a particular property, in detail.
Zoning Problems
• Non-Conforming Use - Existing
properties are often used in a manner
that's inconsistent with a new zoning
ordinance. Such uses are referred to as
"non-conforming" uses because they don't
"conform" to the requirements of the
zoning ordinance.
• Amortization - is another way to limit non-
conforming uses. Under this approach, a non-
conforming use is permitted to continue for a
specific period of time, after which it must be
converted to a conforming use.
• Conditional Use - A conditional use is a use
which is permitted under a zoning ordinance, but
which must meet certain conditions.
Variance & Spot Zoning
• A variance or special use permit is an
exception to the requirements of a zoning
ordinance.
• Spot Zoning - Local land use plans and
zoning ordinances usually contain
restrictions on land uses in specific areas
(or ―zones‖) outlined in the plan or
ordinance.
Urbanization
• The rapid urbanization of the last century
has resulted in a significant amount of
slum habitation in the major cities of the
world, particularly in Developing Countries.
• There is significant demand for planning
resources and strategies to address the
issues that arise from slum development,
and many planning theorists and
practitioners are calling for increased
attention and resources in this area
• Urban Decay is a process by which a city,
or a part of a city, falls into a state of
disrepair.
• It is characterized by depopulation,
property abandonment, high
unemployment, fragmented families,
political disenfranchisement, crime, and
desolate and unfriendly urban landscapes.
• There is no single cause of urban decay,
though it may be triggered by a
combination of interrelated factors,
including urban planning decisions, the
development of highways,
suburbanization, redlining, immigration
restrictions and racial discrimination.
Urban Renewal
• Is a controversial US program of land re-
development in areas of moderate to high
density urban land use. This process began an
intense phase in the late 1940s and continues to
the present day. It has a major impact on the
urban landscape.

• Any reconstruction plan proposed, needs to be


sensitive to the needs of the community and its
existing culture, businesses, and needs.
• Urban renewal is extremely controversial, and
typically involves the destruction of businesses,
the relocation of people, and the use of eminent
domain (known as Compulsory Acquisition) as a
legal instrument to reclaim private property for
City-initiated development projects.
• The justifications often used for Urban Renewal
include the "renewal" of residential slums,
blighted commercial and industrial areas.
• Urban renewal's effect on actual
revitalization is a subject of intense
debate. It is seen by proponents as an
economic engine, and by opponents as a
regressive mechanism for enriching the
wealthy at the expense of taxpayers and
the poor. It carries a high cost to existing
communities, and in many cases resulted
in the destruction of vibrant—if run-down
—neighborhoods.
• Urban renewal in its original form has been called a
failure by many urban planners and civic leaders, and
has since been reformulated with a focus on
redevelopment of existing communities. However, many
cities link the revitalization of the central business district
and gentrification of residential neighborhoods to earlier
urban renewal programs.
• Over time, urban renewal evolved into a policy based
less on destruction and more on renovation and
investment, and today is an integral part of many local
governments, often combined with small and big
business incentives.
History of Urban Renewal
• Urban renewal goes back to the work of
Robert Moses in the redevelopment of
New York City and New York State from
the 1930s to the 1970s. Moses directed
the construction of new bridges,
highways, housing projects, and public
parks.
Reactions Against Urban Renewal
• In 1961, Jane Jacobs published ―The Death and Life of
Great American Cities, one of the first—and strongest—
critiques of contemporary large-scale urban renewal.

• In 1964, the Civil Rights Act removed racial deed


restrictions on housing. This began desegregation of
residential neighborhoods, but redlining continued to
mean that real estate agents continued to steer ethnic
minorities to certain areas. The riots that swept cities
across the US from 1965 to 1967 damaged or destroyed
additional areas of major cities—most drastically in
Detroit.
From Urban Renewal to Community
Development
• Currently, a mix of renovation, selective
demolition, commercial development, and tax
incentives is most often used to revitalize urban
neighborhoods.
• Though not without its critics—gentrification is
still controversial, and often results in familiar
patterns of poorer residents being priced out of
urban areas into suburbs or more depressed
areas of cities—urban renewal in its present
form is generally regarded as a great
improvement over the policies of the middle part
of the 20th Century.
• Today many cities seek to establish a process of
urban renewal which enables local citizens to
have greater control and ownership of the
direction of their community and the way in
which it overcomes market failure.
• This supports important themes in urban
renewal today, such as participation,
sustainability and trust - and government acting
as advocate and 'enabler', rather than an
instrument of command and control.
• During the 1990s the concept of culture-led
regeneration gained ground.
Suburbanization
• In some countries declining satisfaction
with the urban environment is held to blame
for continuing migration to smaller towns and
rural areas (so-called urban exodus).
• Successful urban planning supported
Regional Planning can bring benefits to a
much larger area or region and help to
reduce both congestion along transport
routes and the wastage of energy implied by
excessive commuting.
Environmental Planning
• Environmental protection and conservation
are of utmost importance to many planning
systems across the world.
• Not only are the specific effects of
development to be mitigated, but attempts
are made to minimize the overall effect of
development on the local and global
environment.
Sustainable Development & Sustainability

Have become buzzwords in the planning


industry, with the recognition that present
ways of consumption and living have led
to problems like the overuse of natural
resources, ecosystem destruction, urban
heat islands, pollution, growing inequality
in cities, the degradation of human living
conditions and human-induced climate
change.
• Stephen Wheeler, in his 1998 article,
suggests a definition for sustainable urban
development to be as "development that
improves the long-term social and
ecological health of cities and towns."
• These include compact, efficient land use;
less automobile use yet with better
access; efficient resource use, less
pollution and waste; the restoration of
natural systems; good housing and living
environments; a healthy social ecology;
sustainable economics; community
participation and involvement; and
preservation of local culture and wisdom.
• Other issues that generate strong debate
amongst urban designers are tensions
between peripheral growth, increased
housing density and planned new
settlements.
• There are also unending debates about
the benefits of mixing tenures and land
uses, versus the benefits of distinguishing
geographic zones where different uses
predominate.
Sustainable Development Plan
• The Plan is sometimes referred to as a
“Comprehensive” or "Master Plan" or "General Plan."
It is a community's general guide for making land use
decisions.
• It usually describes how the community wants to grow,
where the community wishes various land uses to take
place and what the community wants to look like.
• In many ways the Plan is a reflection of the
community's values. As such, this Plan is a continuation
of previous plans and other efforts to bring about a
more efficient, functional and beautiful community.
• The Sustainable Development Plan is
Both a Short AND Long-Range
Document - It is tempting to view some of
the elements of the Sustainable
Development Plan as unrealistic.
However, consider the fact that a plan is
intended to be a long-range look into the
future. This Plan is considered to be a look
at least 20 years into the future.
Three level process of regulating
land uses:
• The Sustainable Development Plan guides
broad decisions regarding Land Use (such as
rezoning).
• The Zoning Plan or Development Order
follows the basic land use pattern established in
the Comprehensive Plan and assigns specific
densities and uses to individual parcels of land.
• The Subdivision Regulations and Building
Permit process implement the requirements of
the Zoning Plan.
Comprehensive Plan
• The zoning designation given to a parcel is
usually based on the land use designation
given to that area in the Plan.
• For example, an area that is designated
"low density residential" in the Plan would
subsequently be zoned for single family
lots (rather than apartments or a gas
station) and only one permit for a single,
residential home would be granted for
each lot.
• The Land Use plan indicates general density
ranges and indicates how development is to be
located on the land, with special regard to
preserving natural features.
• The Zones in the Zoning Map are legal
designations that assign a specific overall
density to a specific tract of land. In most cases,
the zoning is uniformly applied to a whole parcel
of land.
• By contrast, the Land Use Plan follows
landforms; floodplains and road patterns (rather
than ownership boundaries) it indicates more
generally how land uses should be arranged on
the land.
Future Updates to the
Sustainable Development Plan

• Since the purpose of the Sustainable


Development Plan is to guide development
according to the goals and needs of the
community, the Plan should be changed as the
needs of the community change. If it is to be an
effective guide for decision-making, the Plan
should be kept reasonably current. This means
that the Council should amend the
Comprehensive Plan as often as necessary to
reflect changes in policy directions and needs.
Zoning Plan
Land Use Plan
Components of Land Use Study
A. Existing Land Use
A. Sub-Area
B. Sub-Area
C. Sub-Area
B. Existing Density Patterns
C. Existing Zoning
D. Existing Circulation Pattern
E. Recommended Land Use Plan
A. Mission Statement
B. Goals & Policies
A. Zoning, Land Use Controls & Development
B. Residential Land Use & Character
C. Commercial Land Use
D. Economic Development
E. Traffic & Circulation
F. Appearance Visual Character & Environmental Quality
F. Future Land Use
G. Density
H. Recommended Zoning
A. Urban Design/Streetscape
B. Vehicular Circulation
I. Land Use Development Guidelines & Standards
A. General Criteria
B. Density
C. Site Planning/Open Space & Green Areas
D. Building Design & Orientation
E. Grading & Drainage
F. Circulation
G. Pedestrian Circulation
H. Lightening
I. Screening & Buffering
Key Tasks
1. Desk Top Research
2. Preliminary Analysis of the various sectors of
planning
3. Creation of Land Use Classification
4. Execution of Fieldwork & Combined Analysis
5. Preliminary Land Use Assessment/Zoning
Plan
6. Production of Zoning Plan
7. Report formulation & Submission
Cases for Review
• Boomer v. Atlantic Cement Co., Inc., 26
N.Y.2d 219 (1970)
• Village of Euclid v. Ambler Realty, 272
U.S. 365 (1926)
• Berman v. Parker, 348 U.S. 26 (1954)
• Belle Terre v. Boraas, 416 U.S. 1 (1974)
• Penn Central Transportation Co. v. City of
New York, 438 U.S. 104 (1978)