Geography 47412 Land Use

Land Use Control by Local Government

Platt Chapter 8 Local Government

The Tapestry of Local Governments

First: the New England town: organic, concentrated for protection; family and religious based; limited outsiders

 Southern counties: county transplant from England; spread out, rural, agrarian/plantation economic system—needed "county seat"

 Synthesis: towns and counties. Counties everywhere, citites or muncipalities chartered, "incorporated"

 Jurisdiction

 County wherever there is not a municipality

Municipalities:

Mutually-exclusive (can’t overlap)

Annexations (contiguous): how municipalities grow, what is the logic?

Annexations by agreement by town and owners (not county)

 Power:

 Sue, contract, tax, adopt local laws not kept at state or federal level.

Dillon’s Rule

 

Counties:  Agent of the state: courthouses, prisons, etc, but also the local government for unincorporated areas.

 

Special districts: powerful "phantom governments" water, rods, etc.

 

Chap. 9 Zoning and Growth Management

Local government’s major role in shaping land use is through zoning.

Like many property, land, and planning basics, zoning has European roots.

Also linked and based on nuisance doctrines, in this case applied very specifically to, for example, undesirable land uses (e.g., banned businesses), and impact of one land use on adjacent land uses (transboundary air light or noise pollution).

In US also emerged as urban zoning in response to urban deterioration of the 19th century, and the "City Beautiful" movement.

Zoning relies on the long-accepted (well-adjudicated) power of the state to regulate the type and intensity of land use in spatial context.

Test case was Village of Euclid vs. Ambler Realty, in 1926, where court upheld zoning and now often referred to as "Euclidian Zoning"

Zoning often regulates:

Type of Use

Density (of dwelling units, offices, etc.)/lot size

Building dimensions, bulk, location 9e.g., set backs)

Height

Typical land use Types:

Residential(various types and densities, single family vs. multi-family)

Commercial/retail

Industrial

Agricultural

And may include some natural resource activities like mining and forestry, but the vast majority of land that is in ag and forestry is outside municipal areas, where most zoning occurs.

Important to note that zoning per se in US is mostly inside urbanized/annexed areas, not generally applied to rural areas. Very few counties in West, for example, have county-wide zoning outside of municipal areas.

Cumulative vs. non-cumulative

May also include "overlay" zones (this word comes from original practice of creating plastic/mylar overlays sheets to place on top of zoning maps so you could see what areas had to meet overlay standards in addition to standard zoning) for special land use designations and standards in addition to zoning (e.g., commercial areas may have specific lighting requirements).

Zoning Map plus Text equals zoning documentation

Because zoning is a rather rigid land use tool, its application traditionally includes flexibilities:

Amendments

Spot zoning

Variances

Non-conforming uses grandfathered and/or phased out over time.

PUDs

Cluster zoning

TDRs

 

Critiques: corrupted by local politics and personal attitudes of zoning boards and elected officials; zoning is exclusionary, and inefficient as practiced.

 

Subdivision regulation:  we’l l return to these, but details for subdividing and developing land go beyond zoning, the street, access, lot size, etc.

 

Deed restrictions and covenants

 

Subdivision exactions and fees: we’ll return to these when we talk about takings.

 

Chapter 9 Local Zoning and Growth management (continued)

In general, it is assumed that zoning (with all its flexibility and lack of flexibility) is under a "comprehensive plan" or "general plan", but in Platt’s discussion on p. 266, and the Critique of Zoning (pp. 273-274), we see some concerns that zoning is used to discriminate ("exclusionary zoning") or it is used willy nilly w/o much planning as a simple regulatory tool, in thoughtless fashion.

Subdivisions, and Fees and Land Acquisition

After the details on typical zoning, Platt goes onto related land use management tools, beginning with sub-division regulations and exactions and impact fees. We won’t bother to go into sub-div regs, but exactions and impact fees are important aspects of land use planning. The goal here is to have land owners and developers pay for or defray the effects of their development on government services. The most common is requiring a sub-div developer to set aside land for a school. The sub-div creates the need for the school, and the set-aside makes some sense.

  • Land acquisition for public needs:
  • Negotiated purchase
  • Eminent domain
  • Gift
  • Dedication (usually small things like bike paths, utility easements, etc.)
  • Zoning incentives (must have strong zoning regs in place first)

Tax default

Platt also discuses TDR here. Be sure to recognize Platt’s point that it only works in the context of firm zoning and subdivision limits.

More on Public Acquisition: local gov can buy land (by negotiation with willing sellers or by condemnation) and do with it as it pleases. Most cases include buying land to keep it out of development (thus a de facto limit on development, but this depends on how much land is still available), but sometimes land is bought for certain types of development. Finally, land is often given to local government (including some of Boulder’s open space). The title transfer in such cases may include a provision allowing current use to continue by the original owner and maybe their off-spring.

This influence on land use is growing quickly: literally hundreds of open space acquisition programs have been approved by voters in the last couple of elections. Most allocate tax monies for open space.

Growth Management and "Smart Growth"

Growth Management, as it affects land use more broadly

Booming development, especially smaller cities, suburban sprawl, growth and spread of housing, etc.

Question: Does "Growth Management" = slowing growth or growth limits?

Growth management generally affects:

  • Shape, type and location of land uses/development (density, pattern, etc.)
  • Timing and progress of development in a jurisdiction
  • Total amount of development (DUs; population; square footage; etc.)

May also include a mixture of goals:

    • Affordability
    • Balancing jobs, housing, and transportation
    • Providing adequate public services
    • Reducing natural hazards.
    • "Community character"

These may blur together, or one may be hidden in another, and some are suspect (e.g., "community character" reeks of discrimination)

Platt gives us three main cases on which current growth management actions are based:

Ramapo, NY: decided growth was too fast, not always in palces desired; so set a rate at which city would provide infrastruture to new development, and where. This timing was seen as a slow-down/limit by some development interests and they sued, and lost. The court found that the jurisdiction, which is required by statute to provide services (e.g., a house cannot be occupied unless it has water and sewer connections), can reasonably set the pace and shape of growth so as to allow "concurrency" between development and infrastructure. The court mostly saw this, I think, as a health and safety issue (e.g., sidewalks for the kids to walk to school), and those have always been solid ground for land use regulation. Platt hints at the end, with quote from Fred Bosselman, that plans like this might be growth limits in "sheep’s clothing" as we discussed in class.

Petaluma, CA went further, though, and set a future total population goal backed by limiting number of development permits. Builders sued and the district court found the plan to limit personal freedoms by limiting housing in the Bay Area. On appeal, though, the 9th Circuit Court of Appeals focused only on Petaluma and decided that communities might limit growth if they wish, as long as the plan was not outright discriminatory----usually meaning that it had the goal of limiting some segments of the housing market. Petaluma had anticipated this and designated some of the available permits for lower income housing (they had a good planner).

Livermore, CA placed a moratorium on new development until it could get services up to speed; the court had more trouble with a moratorium, which apepared to be exclusionary and discriminatory (lower income housing was needed desperartely), but the court upheld the moratorium based on a test that the impacts outside the jurisdiction on equity of the housing market was assessed and not major. This set up a judicial test for future growth limits: did the city assess the impacts of the restriciton; identify the competing interests affected by he decision; and determine that the ordinance is a reasonable accommodation of those interests. .

These were up-held but strict limits on DU’s in Boca Raton, FL and utility services in Boulder, CO, are sometimes struck down by the courts on due process and equal treatment principles.

Smart Growth and New Urbanism

We’ll talk more about these in our discussion of "sprawl" and the Gilham text.