Land Use Control of unreasonable land use

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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 My land Your land Your land My land Both parcels unimproved You excavated- my land is diminished

Land Use

• Soil support 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 re development, 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

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