Guest Lecture

Land Use for Non-Lawyers Sage College Fall 2009 Adam Sherwin For Educational Purposes Only

Overview Introduction Planning Local Land Use (Zoning) Regional/State Land Use Systems Limitations on Land Use Current Issues in Land Use

Introduction What is Land Use? Control on the use of land Two most important parts: Planning Regulation Origins Government (ex. zoning) Judicial (ex. nuisance, trespass) Private Controls (ex. covenants, easements) Our focus is on government – the most important source of land use law

Introduction (continued) Why have land use? Control growth Protect environment Protect landowners Alternative to legal remedies Plan for the future

Introduction (continued) Who is involved in land use law? (Everyone…) Regulators (ex. legislators, planners) Landowners/Developers Consultants (ex. lawyers, engineers, surveyors) Lenders, Realtors Interest groups

Introduction (continued) Primary Functions in a Land Use System Legislative Responsible for making land use laws Ex. City Council drafting zoning, municipal plan Quasi-Judicial Interpreting and applying land use regulations Ex. Zoning Board responsible for approving a discretionary permit Administrative Responsible for non-discretionary acts Ex. Issuing permits, enforcing bylaws

Introduction (continued) Why study land use law? Land use is considered by many to be the area of law that most affects the quality of life in the U.S. Land use is an essential part of any decisions made on the environment, energy, transportation, infrastructure, and many, many other policy decisions A little knowledge can go a long way for whatever you pursue in your career

Planning Planning is used prior to developing any land use regulations Referred to as the “comprehensive plan,” “general plan,” or “master plan” Usually created through a planning commission or board, with expert advice

Planning (continued) Contents include: Objectives of land use Goals Policies to implement these goals Many purposes exist for planning Plans have legal effect (ex. consistency requirements)

Zoning Source: Official Site of the City of Albany, NY (http://www.albanyny.org/ Government/Departments/DevelopmentPlanning/PlanningZoningLandUse.aspx)

Zoning (continued) Most common form of land use regulation Two general classifications: Inclusive (only permits those uses specifically named) Exclusive (prohibits specified uses and permits all others)

Zoning (continued) Village of Euclid v. Ambler Realty Co. (272 U.S. 365) Village of Euclid (Ohio) established a comprehensive plan for regulating growth in the village, through a zoning map and ordinance. Each district was limited to: Certain uses (ex. single-family dwellings, commercial establishments) Building heights Area Restrictions Landowner challenges this zoning law by arguing it violates Due Process Clause and Equal Protection Clause of the U.S. Constitution. U.S. Supreme Court upholds this zoning plan by finding that this was a valid use of “police power” by Euclid. Euclid had legitimate state interests in this zoning, such as promoting safety and security and reducing noise. However, limits exist on zoning: cannot be arbitrary or unreasonable.

Zoning (continued) “ Euclidean Zoning” – zoning by districts Districts generally permit certain uses (“inclusive”) or prohibit certain uses (“exclusive”) “ Cumulative” Zoning – Permitted uses in a zone plus less intensive uses City of Albany, NY: 21 districts , including: R-1LL Single-Family Large Lot Residential District R-O Residential Office C-PB Commercial Pine Bush C-M Light Industrial When reading a zoning ordinance, pay close attention to definitions

Zoning (continued) Excerpt of City of Albany, NY Zoning Ordinance: R-1LL Single-Family Large Lot Residential District A. Principal permitted uses shall be as follows: Single-family detached dwellings. Houses of worship. B. Accessory uses shall be as follows: Detached garages. Swimming pools. Tennis courts. C. Special permit uses shall be as follows: Parks or playgrounds. Private schools. Nursing homes. D. Yard requirements shall be as follows: Minimum total lot area: 40,000 square feet. Minimum lot width: 160 feet. Minimum lot depth: 250 feet. Source: City of Albany, NY Zoning Ordinance (http://www.albanyny.org/_files/ZoningOrdinance.pdf)

Zoning (continued) Other typical features in a zoning ordinance: Setback Requirements Required Frontage/Access to Roads Subdivision Restrictions Restrictions on signs, billboards

Zoning (continued) Over concerns that Euclidean zoning might be too restrictive, flexibility devices have developed: Use Permits (particular use is proper under certain circumstances) Variance (exception to zoning restriction for undue or unnecessary hardship) Nonconforming Use (Use in a zone may continue if it lawfully existed prior to the adoption of that zoning) Site Plan Review (case-by-case examination) Conditional Zoning

Regional/State Land Use Systems While land use is generally done at the local level, regional and state systems have emerged as an additional source of regulation Adirondack Park (New York) Act 250 (Vermont)

Adirondack Park Adirondack Park is the largest publicly protected area in the contiguous United States “ The basic purpose of this article is to insure optimum overall conservation, protection, preservation, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack park.” Adirondack Park Agency Act § 801 Covered by the State Land Master Plan (1972) and Adirondack Park Land Use and Development Plan (1973), both of which are periodically revised Land use restrictions are set forth in the Adirondack Agency Act and further explained in the Adirondack Agency Park Rules and Regulations Local government within the park may develop their own land use programs, and if approved, may be given permitting authority that the Adirondack Park Agency would otherwise have

Adirondack Park (continued) What are some of the land use controls over the Adirondack Park? Land Use Classification (ex. rural uses, resource management, industrial uses) Critical Environmental Areas (areas with additional protection for environmentally sensitive areas, such as wetlands) Shoreline restrictions (to protect water quality and aesthetics)

Adirondack Park (continued) Administered through the Adirondack Park Agency Made up of an eleven member board eight of whom are appointed by the Governor (other three members are the Secretary of State, Commissioner of Environmental Conservation, and Commissioner of Economic Development. Responsible for developing long-term plans for the park, issuing permits, and enforcing land use controls

Act 250 (Vermont) State-wide land use plan for Vermont Requires most types of development to satisfy ten criteria in order to receive a permit State divided into nine districts, each having a district environmental commission made up of local citizens

Act 250 (continued) Criteria: Will not result in undue water or air pollution.Included are the following considerations: (A) Headwaters; (B) Waste disposal (including wastewater and stormwater); (C) Water Conservation; (D) Floodways; (E) Streams; (F) Shorelines; and (G) Wetlands. Has sufficient water available for the needs of the subdivision or development. Will not unreasonably burden any existing water supply. Will not cause unreasonable soil erosion or affect the capacity of the land to hold water. Will not cause unreasonably dangerous or congested conditions with respect to highways or other means of transportation. Will not create an unreasonable burden on the educational facilities of the municipality. Will not create an unreasonable burden on the municipality in providing governmental services. Will not have an undue adverse effect on aesthetics, scenic beauty, historic sites or natural areas, and 8(A) will not imperil necessary wildlife habitat or endangered species in the immediate area. Conforms with the Capability and Development Plan which includes the following considerations: (A) The impact the project will have on the growth of the town or region: (B) Primary agricultural soils; (C) Productive forest soils; (D) Earth resources; (E) Extraction of earth resources; (F) Energy conservation; (G) Private utility services; (H) Costs of scattered developments; (J) Public utility services; (K) Development affecting public investments; and (L) Rural growth areas. Is in conformance with any local or regional plan or capital facilities program.

Limitations on Land Use While government has “police power” to create land use regulations, limits exist on this power Most important are those found in the U.S. Constitution, the “Supreme Law of the Land”

Limitations on Land Use (continued) First Amendment: " Congress shall make no law . . abridging the freedom of speech . . . ." Often used to challenge aesthetic regulations (ex. restrictions on signs/billboards) To prevail, government must show: Interest trying to be achieved is a compelling state interest Regulation is “narrowly tailored”

Limitations on Land Use (continued) Fifth Amendment: "[N]or shall private property be taken for public use, without just compensation.“ Raised against many different types of land use regulations However, except for a total deprivation of property or physical invasion, property owners rarely succeed on these claims

Limitations on Land Use (continued) 1. Economic Impact 2. “Investment Backed expectations” 3. Character of Government action 1. Essential Nexus 2. Impact needs to be carefully tailored to be “roughly” proportional” Per Se Taking Per Se Taking Test Everything else Deprivation of some portion of property for public use (“extraction”) Destruction of all economic value in the owner's property Slight permanent physical invasion of property What is this used for Penn Central Takings Nollan/Dolan Takings Lucas Takings Loretto Takings

Current Issues in Land Use Aesthetics & Alternative Energy

Current Issues in Land Use (continued) Growth Management & “Smart Growth”

Current Issues in Land Use (continued) “ Green” Building

Recommend Resources Juergensmeyer and Roberts, Land Use Planning and Control Law (3d edn., 2007); Vermont Journal of Environmental Law ( www.vjel.org )

Thank you! Adam Sherwin [email_address]

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