Land Use and the Courts

5th Amendment

states that “nor shall private property be taken for public use without just compensation”

leapfrog development

land is urbanized faster than the population grows, leading to development jumping out to the edge of the urban area (edge cities), leaving unused and non-redeveloped parcels throughout the city

geography

study of spatial organization and human-environment interactions

planning

rational allocation of land use activity, balancing public interests and private property rights

General Model of Land-Law Interaction

states that cultures impact the environment in different ways over time, producing different legal responses

judicial deference

the supreme court presumes state and local laws are valid until proven unconstitutional

Feudal land management

prevailing system of land use in continental Europe 9th century - 17th century

closed access commons

under feudalism, commons worked because the population was small and social units were defined by locality

enclosure movement

led to private ownership and common law doctrine of property ownership by 18th century

tresspass/encroachment

bedrock principle of common law doctrine; physical invasion by an individual who had no right to enter the property

nuisance

bedrock principle of common law doctrine; addressed externalities taken somewhere other than the affected owned property

1667 Act for Rebuilding London

genesis of modern town planning; direct reaction to Great Fire

cholera

galvanized concern about urban squalor in 19th century Europe

philosophical radical group

19th century group that advocated legislative intervention in the marketplace to remedy social ills

Jeremy Bentham

leader of the philosophical radical group

1832 Poor Law Commission

public sanitary reform effort; reviewed welfare payment structure and resulted in data collection

1843 Royal Commission of the State of Large Towns

public sanitary reform effort; advocated delegation of responsibility for sanitary regulations to local government, sanitary surveys, minimum standards/code for new dwellings, and new parks in industrial cities

1848 Public Health Act

first public health act in the world; established local district health boards where death rate was > 23/1000; but was permissive, not mandatory

John Nash

made influential urban improvements and restructuring in London, including Buckingham Palace, Tralfagar Square, St. James Park, and re-alignment of Regent Street

Baron von Haussman

transformed Paris through acquisition, demolition, and replacement of pre-existing streets with tree-lined boulevards

deficit financing

technique used by Baron von Haussman to fund redevelopment; borrowing from bank and later paying off debt

technocrats

group of humans with technical planning skills, formed by Baron von Haussman’s efforts and mentorship

Robert Owen

person who proposed general theory of cooperative socioeconomic organization; based in experience of managing the New Lanark mill town south of Glasgow, Scotland

New Harmony, IN

failed experiment in US conducted by Robert Owen

Ebenezer Howard

“father of planning;” published “Garden Cities of Tomorrow”

Garden City

proposed by Ebenezer Howard; became the prototype for the contemporary subdivision

real property

property such as land, improvements upon it (buildings, swimming pools, etc), vegetation, subsurface minerals and water bodies; non-movable

personal property

type of property including movable objects owned by an individual

fee simple absolute ownership

entirety of real property rights; includes both material and spatial rights

material rights

property rights that derive from the physical circumstances of the site (soil, minerals, energy resources, flora, fauna, scenic)

spatial rights

property rights that allow the owner to enclose a portion of the air column above the site for usable interior space; may extend downward as well

green sticks

rights of real property ownership

common law protections

rights of real property ownership including the right to exclude others and the right to be protected from one’s neighbors

nuisance

duty of real property ownership; common law doctrine not to interfere with the rights of neighbors and/or general public

private nuisance

type of nuisance involving harmful externality on a neighbor, such as noise, odor, blocking light and air, flooding; normally involves civil nuisance suits with lots of room for judicial discretion

public nuisance

type of nuisance that is a harmful externality on a wider geographic area (air/water pollution, sex shops, hazardous wastes); normally a violation of existing statute and raises constitutionality issues

public regulations

duty of real property ownership relating to building codes, zoning, subdivision regulations, flood plain requirements, etc

fee simple absolute

contractual arrangement of private ownership; 3D concept of ownership in perpetuity; may be sold, rented, or dedicated to heirs by will; may be physically partitioned, divided in terms of usage rights, or split into time periods

life estates and future interests

contractual arrangement of private ownership; spouses own real property as joint tenants with rights of survivorship; surviving spouse frequently receives a life estate upon death of other spouse; children vested with future interests

leaseholds and tenancies

contractual arrangement of private ownership; owners of real property can obtain income from land by renting or leasing

easement

contractual arrangement of private ownership; limited interest in real property held by general public or individual other than the principal owner

utility easement

type of easement; right of access for utility lines, pipelines, cable, etc

access easement

type of easement; right to cross intervening property to building lots that lack street frontage

recreation easement

type of easement; eg, public access to bodies of water across private property

scenic/conservation easement

type of easement; easement of development rights; use restrictions on the title to the land prevent owner from altering natural or scenic characteristics of site

covenant

contractual arrangement of private ownership; commitment contained in a deed or title affecting the ownership of real property; voluntary, but irrevocable upon agreement

lien

contractual arrangement of private ownership; claim against real property owners by parties to whom the owners owe money; if unpaid, may lead to seizure of property

options

contractual arrangement of private ownership; contract between owner and prospective buyer under with latter has right to buy property at agreed price within stated limited time period

purchase or sale

acquisition/disposition of property; execution of a contract where legal deed or title is transferred to the buyer who often borrows a significant part of purchase price through a bank mortgage

gift or donation

acquisition/disposition of property; to/from relatives or charitable organization; may be partial (eg, donation of a recreation easement)

inheritance

acquisition/deposition of property; through death of previous owner

involuntary forfeiture

acquisition/deposition of property; includes foreclosure, adverse possession, prescriptive easements

foreclosure

involuntary forfeiture; taking of property by lender when borrower fails to pay

adverse possession

involuntary forfeiture; may claim ownership after a period of years of continuous occupancy (~7-10 years during which property owner makes no formal effort to evict)

eminent domain

acuisition/disposition of property; aka complusory purchase, condemnation; taking of property title by a public agency by 5th amendment with just compensation at fair market value, normally for public use or benefit

legal boundary descriptions

purpose: provide precise definitions of land parcels, avoid land-use disputes, and basis for property taxation

subdivision plats or plans

more modern and expensive type of legal boundary description that reflects growing government influence in private land market in the interest of the public

annexation

allows cities to “capture” property taxes outside pre-existing city limits due to suburbanization BUT must provide city services

unilateral annexation powers

annexation powers that do not require permission of majority of affected property owners

multilateral annexation powers

annexation powers that require permission of a majority of affected property owners

defensive incorporation

strategy to avoid annexation by larger cities employed by many communities in areas of unilateral annexation; eventually must raise property taxes to pay for essential infrastructure

extraterritoriality

use of eminent domain (for nature reserves, parks, sewage treatment plants, airports) allowed by some states to acquire land and water rights outside city limits

zoning

most widespread form of local land use control in U.S. cities

city beautiful movement

one of four early 20th century precursors to zoning; integrated prior ideas of municipal art, civic design, and landscape architecturew

White City

first example of public buildings and public spaces conceived as a unified whole; designed by Olmstead and Burnham; at 1893 World Columbian Exposition; part of City Beautiful Movement; limited to aesthetic controls and public controls over public land

MacMillan Commission Plan of 1902 for DC Mall

best example of City Beautiful planning; carefully designed vistas that stress symmetry and strong axial layout; formality and classicism

Burnham Plan of Chicago 1909

influential example of City Beautiful Planning; plan included radial and circumferential highway networks up to 60 miles from CBD, integrated multimodal public transit, system of parks throughout city and along lakefront; still limited to public controls over public land

Garden City Movement

one of four early 20th century precursors to zoning; form based on low-density residential development and segregation of residential and commercial uses; conceptual basis for US suburbia; succeeded in heightening receptivity to zoning as an alternative means to similar ends

skyscrapers

one of four early 20th century precursors to zoning; technological innovation in Chicago enabled by invention of Otis elevator and steel frame construction techniques; led to concern about public environment and evolution of pre-zoning height limitations

Nuisance and Height Regulations

one of four early 20th century precursors to zoning; extension of common law roots of nuisance principle; represents early 20th century Supreme Court increased acceptance of proactive government to regulation to minimize or prohibit potential nuisance activities

Mugler v Kansas, 1887

key early case in nuisance and height regulations; US Supreme Court upheld KS law prohibiting manufacture and sale of alcoholic beverages, and closed existing breweries; considered key to development of regulatory police powers to protect public interest

Congressional Bill of 1889

nuisance and height regulation that places height limits in structures in DC to 90-130 ft, to enhance views of Washinton Monument and Capitol Building

Welch v Swasey 1909

case involving a leading pre-zoning decision on building dimensions that utilized a districting approach, giving 125 ft height limit for designated commercial districts and 80-100 ft height limit for residential districts in Boston; reflected a degree of judicial tolerance for police power measure on the eve of comprehensive zoning

Hadacheck v Sebastian 1915

case that upheld an LA ordinance prohibiting operation of brick kilns within a district in an area recently annexed to the city; provided implicit approval for land use zoning and police powers without compensation

progressive movement

social influence on private land market involving concern for congestion (disease-ridden tenements, loss of light and air, and inadequate open space)

Benjamin Marsh

person in Progressive Movement who advocated for public control over street location and design; advance acquisition of land prior to development; and districting, or zoning, of land to regulate building height and volume

National Conference on City Planning

first held in 1909; progressive action to improve public conditions in the American city

public interest

frequently taken to mean the “health, safety, morals, and general welfare of the public”

New York Zoning Code 1916

first comprehensive zoning code in the US; integrated land use controls, controls on building heights, control of building setbacks and yards

Euclid v Ambler Realty Co 1926

constitutional building block of American city planning; SCOTUS upheld the constitutionality of a comprehensive zoning code in Euclid, OH

Euclidean Zoning

still provides the philosophical and legal underpinnings of modern zoning law

US Dept of Commerce Standard State Zoning Enabling Act 1926

model zoning act adopted by all 48 states; indicated regulations shall be made in accordance with a comprehensive plan (undefined until 1927)