Land Use Control of unreasonable land use


Land Use

Control of unreasonable land use

* deprive use or value of adjacent land

HI * physical vs. “intangible” LO

* permanent vs. temporary

* hard to avoid vs. easy to avoid

* intentional vs. unintentional

* negligent vs. accidental

* social value vs. “vice”

(community standards)

Land Use

• Damages vs. injunctive relief

• Proof of standard can be difficult (Salt

Lake City case)

• Easier to support control rather than prohibition

• Class action helps groups of small land owners when confronted by large land owner

Land Use

• Soil Support- rights extend to lateral support of adjoining land <Case 1>

My land Your land Your land

My land

Both parcels unimproved

You excavated- my land is diminished

Land Use

• Soil support <Case 2>

My land

Your land

My parcel is improved

My land

Your land

Did my improvements cause loss of land?

Land Use

• Must use reasonable care

• Many jurisdictions have excavation statutes for notification and protection of adjacent structures

• Must also be careful not to interfere with the natural flow of water- strictly liable

• Slowly adopting reasonable use rules:

(necessity, care, benefit vs. harm, acommodation and improvement)

Land Use

• Easements

– Light and shadow

– Air flow

– Views

– Access to public spaces or utilities

– Restrictions of air space

Land Use

• Grantor can control subsequent use through

“restrictive covenants”

• Very common in housing developments, industrial parks, and government supported

(subsidized) developments

• Can bind all sellers and buyers through purchase agreements and deeds

• Can be quite rigid- usually have to do with use

(no animals or businesses on premises)

• Are increasingly being used for architecture and aesthetics

Land Use

• Public control through land planning, zoning, and regulations (FAR, parking, tax incentives, etc.)

• Condemnation and eminent domain rights are limited.

• Must be for the “public good” and must provide reasonable compensation for existing land owner

• Does not apply to nuisance, arrearage, and abandonment

Land Use

• Flexibility in land controls and planning

– Variances and special use permits

– Nonconforming uses- amortization periods, grandfather clauses (root beer maker in BWCA)

– If too many variances are granted, it can be hard to prove “non-conforming use”

– Rezoning- usually requires consent of adjoining land owners

– Contract and bonus zoning- rehabilitation or redevelopment, public-private partnerships, planned growth, community or village concept, similar to planned unit development for unimproved land

Land Use

• Environmental control and liability

– Clean air and clean water act

– EPA laws of late 1960’s and early 70’s

– Jurisdictional disputes

– Problems with national level policies

– Moving towards cooperation and technical support as opposed to confrontation and enforcement

Land Use

• Managing growth and new technologies

– Air rights

– Mineral rights

– Brownfield developments

– Redevelopment

– Mixed use requirements

– Community based decision making