Geography 4742 Land Use
Lecture Notes
Jan 28
Land Use Control (Platt Chap. 3)
How did the government come to have authority over land use?
English roots of common law;
Feudal commons (before widespread private ownership) and "Holding (tenure) in Common"
Problems of the commons
Ended in "enclosure" (Parliament started in 1235): often argued as organic result of post-Roman control; pathologies of commons; etc.
Manor/Commons: Use guided by "customary rules and constraints," low population, agreed-upon limits: stability and rigidity
Post-Roman growth of markets, cities, industry.
Urban migration: Chartered Cities; Municipal Corps: exist; own land, establish courts, adopt ordinances
Imported laws:
Nuisance, building codes, out of London fire of 1666:
Stone/brick building rules, other building details on size, overhang, etc.
Wider streets
Thames water access
Nuisance banned from central London
Compensation (by gov. if restrictions impeded use of property)—an important provision---King Charles II in a good mood?
"Mixed System" imported to U.S.
"Owner as planner": chooses how and when to use property.
Public reacts!
Back to property rights: "bundle of sticks" metaphor
Green stciks: use, development, change uses; exclude; minerals, water.
Red sticks: obligaitons: avoid nuisance
Fee Simple (absolute) rights:
Sub-divide (division in space)
Severe use rights
Division of use in time
Limits: most common are Easements for utilities.
What are the limits on state powers over land use?
As more communities and citizens have called for "growth management" (read: growth limits), local governments have started placing more limits on
development, and faced more complaints for development interests. Social goals and assessment of risks and losses associated with land use have changed, too: demand for species protection, open space, etc.
Several complaints turned into law suits, some made it to Supreme Court
Basic issue: when are land use restrictions an unconstitutional takings (though some property rights theorists and advocates might say the basic question is whether gov can regulate land use at all, we’ll stick to the more practically relevant issue of when regulations violate property rights).
Platt lays out the judicial tests emerging on takings:
The character of the gov action (is it legitimate public interest?)
The economic impact on the property owner, and their "reasonable, investment-backed expectations"—this also brought uo "proportionality"
Strong et al. reading on "takings" for planners:
They go over much the same material but strengthen the discussion of two important criteria for land use regulations:
Rationally-based (does the restriction meet logical, well-supported community planning principles)
and
Nexus: does the particular restriction link directly to the impact of development of that property, and to the particular aspects of community development, planning and land use (i.e., what additional traffic is added directly by your particular retail development, and what is not mitigated by standard means like property and sales taxes). This also brought up "proportionality"---not as much the economic impact (above) but the proportion of public impact by your development.
Penn central vs. NYC: Landmark designation of grand central terminal, would it unconstitutionally limit re-development? NO, because the city did not obviate the typical use of the property (e.g., architectural requirements do not stop it from being a transport hub), did not deny all reasonable use. Does it keep the owner from re-developing for a totally different use? Yes, probably, but did the owner have investment backed, plan-backed expectations of big changes in use? According to the court, No.
Nollans vs. Calif. Coastal Commission: failed the nexus and logic test: The Nollan’s wish to rebuild their house did not have any link to the state’s interest in providing public beach access, even if the bigger house impacted the public’s view.
Lucas vs. SC Coastal Council: The govt does have the right t protect barrier beaches and san dunes as both a public safety and environmental protection, but this action devalued the land completely, and was not in keeping with previous development next door which was allowed under proper planning and zoning. So, either pay Lucas or otherwise compensate, or take care of the problem another way (e.g., maybe use state funds to reinforce the dunes).
Dollan vs. City of Tigard: hardware stores wants to enlarge, bigger parking lot, etc. City wanted bike path along stream instead of aprt of parking lot. Also, city claimed enlarged business cost extra traffic infrastructure (new turning lane), so Ok to ask for bike path. The obvious nexus and proportionality issues here made the city lose the case.
Fair and rationally-based. It is OK to promulgate new regulations if they are rational and meet well-established social goals.
Regulation within a framework of comprehensive and detailed planning; no surprises (allow for adjustment), with open planning process, due process, appeals, etc.
Don’t’ devalue land completely or even mostly. Make any limits and exactions proportionate to the social impact.
If you really want to limit use, and it will devalue, then buy it outright; or otherwise meet the constitutional standard of "just compensation"