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