Chapter 2: Land Use Control Regulations

Learning Objectives of Land Use Control Regulations

• Private Land Use Controls: Identification of private mechanisms used to control land use and the specific processes employed to enforce them.
• Public Land Use Controls: Identification of public mechanisms and the application of "police power" as the primary vehicle for enforcement.
• Zoning Classifications: Identification of various zoning types and the methods by which local authorities enforce these classifications.
• Local Authority Roles: Understanding the role of local governments in land use planning and the implementation of zoning regulations.

Government Rights and Police Power

• Definition of Police Power: This refers to the inherent authority of the government at any level (local, state, federal) to take actions necessary to ensure the health, safety, morality, and general welfare of its citizens.
• Scope of Police Power: It encompasses several regulatory areas including:     * Licensing: Regulating professional and business activities.     * Public Service: Ensuring the provision of necessary services.     * Zoning: Categorizing land by use.     * Building Codes: Establishing construction safety standards.

Taxation as a Governmental Power

• Purpose of Taxation: A police power that allows the government to fund public works and infrastructure through a stable income source, sharing the financial burden among many citizens.
• Ad Valorem Taxes: Real estate taxes calculated based on the assessed value of the property.
• General Property Taxes: These funds typically pay for public necessities such as schools, police departments, and fire departments.
• Special Assessment Taxes: These are levied only against specific properties that directly benefit from a public improvement.     * Examples: Installation of sewer lines, city water lines on a specific street, street paving, curbs, sidewalks, or street lighting.
• Lien Priority: Property tax liens generally take priority over all other property liens in most states.

Eminent Domain and Takings

• Eminent Domain Definition: The government's power to seize private land for public use, provided the government provides "just compensation" to the private owner.     * Application Example: Seizing land for a planned public utility project.
• Taking: The governmental appropriation of property. This refers to the physical occupation of property or substantial interference with an owner's rights to use the land according to their wishes.
• Condemnation Action: The formal legal process of taking title and physical possession of private property through eminent domain. Fair compensation is paid to the owner during this process.
• Inverse Condemnation: Occurs when the government takes private property or reduces its value significantly but fails to compensate the owner fairly.     * Owner Action: In these cases, property owners are forced to file a lawsuit against the government to obtain compensation.     * Types of Inverse Condemnation: Can be physical (occupation) or regulatory (regulations causing the property to lose its economic value).

Escheat

• Definition: The state’s power to claim ownership of the property of a decedent who dies "intestate" (without a will) and without legal heirs or creditors.
• Public Benefit: Once the state claims property via escheat, it can dispose of the asset to benefit the public.

Government Zoning and Master Plans

• Zoning Definition: A police power exercised by local governments (state, county, city, town) to classify land based on its current or intended usage.
• Zoning Ordinances: Local laws that implement the "Comprehensive Plan" (or Master Plan) by regulating land use. These are usually enforced at the city level.
• Regulatory Scope: Ordinances control lot sizes, building heights, and permitted uses within specific classifications indicated on a zoning map.
• Fair Housing Compliance: Zoning ordinances are prohibited from violating the federal Fair Housing Act.
• Monitoring Compliance: Zoning is monitored through applications for permits; developers are only granted permits if their projects align with existing ordinances.
• Zoning Classifications:     * Residential: Housing.     * Commercial: Business and trade.     * Mixed Use (Combination): Blends residential and commercial.     * Industrial: Manufacturing and industry.     * Agriculture: Farming.     * Open Space / Parkland / Recreational: Protected green areas and public parks.     * Other Residential Uses: Can include group homes, home occupations, or accessory uses.
• Special Zoning Types:     * Incentive Zoning: Permits development that would otherwise be prohibited in exchange for the developer providing a community benefit (e.g., affordable housing or public green space).     * Bulk Zoning: Controls the density of an area by imposing building height limits, lot widths, and setback requirements (applies to both residential and commercial areas).     * Aesthetic Zoning: Used to ensure visual and architectural consistency within a specific area.     * Down Zoning: The process of changing the zoning of an area from a higher-density use to a lower-density use.     * Density Zoning: Refers to the number of units permitted per acre (e.g., houses per acre).     * Spot Zoning: The practice of rezoning a specific small property for a use that differs from the surrounding area.

Zoning Actions, Challenges, and Boards

• Non-conforming Use: A use that deviates from current zoning but is "grandfathered in" because it existed before the current zoning laws were enacted.
• Moratorium: A temporary halt on new property development.
• Special Use Permit (Conditional Use Permit): Allows a use that is not normally permitted in a zone but is considered compatible with the area (e.g., a church in a residential zone).
• Variance / Use Variance: A permitted deviation from the zoning requirements. It is typically granted if the current zoning creates a specific hardship or burden for the property owner.
• Procedural Requirements: Both special use permits and variances require a public hearing before they can be granted.
• Zoning Appeal Boards: Local bodies that oversee challenges to zoning actions.
• Planning Board: Responsible for ensuring controlled, orderly community growth. They develop the Master Plan (Comprehensive Plan), which includes a budget. In cities, this is known as Urban Planning.
• Topography: Planners must account for the physical and natural features of the area.
• Sunshine Laws: Derived from the federal Sunshine Act (part of the Freedom of Information Act, or FOIA), these laws require that meetings of planning and zoning boards be open to the public.

Subdivision and Building Codes

• Subdivision: Land that is divided into smaller lots for development.
• Plot Map: A detailed map submitted by a developer to a planning board or zoning commission. It represents a tract of land and shows boundaries, locations of individual properties, streets, and easements.
• Building Codes: Rules specifying the standards for building projects to ensure safety and function for occupants.     * Address: Methods of construction, materials, safety, and sanitary standards.     * Hierarchy: State building codes provide the bare minimum; local codes can provide additional regulations. If neither exists, builders must follow federal building codes.
• Permits and Inspections: Building permits are issued locally to ensure code adherence, and building inspectors review work to confirm compliance.
• Existing Construction: Most municipalities allow existing structures to be sold and occupied without meeting current codes unless substantial renovations are made.

Regulation of Special Land Types and Wetlands

• Wetlands Definition: Areas saturated by water sufficient to support vegetation adapted for saturated soil.
• Clean Water Act: Provides guidelines for US waters, including wetlands.
• Impact: The presence of wetlands limits property use and construction, affecting property value and requiring consideration in appraisals.
• Flood Zones (Floodplains): Low-lying areas susceptible to flooding due to proximity to water sources.
• Flood Insurance: Lenders under federal regulation must require buyers in Special Flood Hazard Areas (SFHAs) to obtain flood insurance as a condition for mortgage approval.
• FEMA: The Federal Emergency Management Agency provides search services to identify properties in flood zones.
• Flood Terminology:     * 100-Year Flood Plan: Represents a $1\%$ chance of flooding in any given year.     * 500-Year Flood Plan: Represents a $0.2\%$ chance of flooding in any given year.
• NFIP: The National Flood Insurance Program helps homeowners in flood zones obtain affordable coverage, as traditional homeowners insurance typically does not cover flood damage.

Hazardous Waste and Protected Habitats

• Special Purpose Landfills: Contain hazardous materials like radioactive waste from nuclear plants or toxic chemicals. These are subject to strict regulations and are often buried in impermeable tombs.
• Endangered Species Act: Administered by the US Fish and Wildlife Service and the National Marine Fisheries Service to protect species and their habitats.
• Conservation Easements: Restrictions recorded in local land records that "run with the land" in the chain of title. They can prevent destructive uses or development on private or public land to protect the environment.
• Historical Landmarks: Municipalities use landmark preservation ordinances and Historical Preservation Commissions to protect the historical character of buildings (interior and exterior) rather than the land use itself.

Environmental Hazards and Regulation

• Environmental Audit: Recommended for commercial/industrial properties to identify hazards.
• Asbestos: A fibrous, fire-retardant material dangerous when it becomes "friable" (easily crumbled/reduced to dust). Pre-1970s material; can cause lung damage. Only licensed professionals should handle it. Disclosure via pamphlet is required for residential sales.
• Lead: Found in paint, plumbing, and soil. Extremely dangerous to children (seizures, learning disabilities, death).     * RRP Rule: Federal Lead Renovation, Repair, and Painting rule requires contractors to be certified if they disturb lead paint.
• Radon: A naturally occurring radioactive gas from soil/well water. Results are measured in picocuries per liter ($pCi/L$).     * Threshold: Mitigation is recommended at or above a level of $4\,pCi/L$.     * Mitigation: Involves sealing cracks and installing vent systems.
• Mold: Promoted by moisture. No federal testing requirements, but the EPA recommends expert remediation for areas over $10\,\text{square feet}$.
• Carbon Monoxide (CO): Odorless, colorless gas from fuel-burning appliances. Most states have strict detector regulations.
• Chlorofluorocarbons (CFCs): Organic compounds (e.g., Freon) linked to ozone depletion. Regulated by the Clean Air Act 1990 amendments.
• Formaldehyde: A Volatile Organic Compound (VOC) emitted as a gas. Classified as a probable carcinogen. Common in pressed wood, laminate furniture, and carpets.
• Polychlorinated Biphenyls (PCBs): Man-made chemicals banned in 1979; formerly used in transformers and hydraulic oil. Carcinogenic and remains in the environment (water/fish).
• Groundwater Contamination: Caused by mining, landfills, leaking underground storage tanks, and agricultural pesticides.
• Landfill Management: Inactive sites are capped with soil. Ventilation pipes expel gases (methane) from waste decomposition. Test wells monitor groundwater.

Abatement, Mitigation, and Liability Statutes

• CERCLA (1980): Comprehensive Environmental Response Compensation and Liability Act. Specifically for cleaning up closed or abandoned hazardous waste sites (Superfund).
• SARA: Superfund Amendment and Reauthorization Act. Added the "innocent landowner defense" for those who performed due diligence prior to purchase.
• Liability Types:     * Strict Liability: Owner is responsible regardless of fault.     * Joint and Several Liability: Each responsible party is personally liable for the full amount of damages.     * Retroactive Liability: Current and previous owners are all liable.
• Brownfields: Former industrial sites suspected of contamination.
• Small Business Liability Relief and Brownfield Revitalization Act (2002): Encourages redevelopment of brownfields by providing cleanup funds and protecting buyers from liability for pre-existing contamination.

Private Land Use Controls

• Definitions: Includes easements, liens, deed restrictions, and HOA rules established by individuals or private entities.
• Conflict of Rules: If public and private restrictions conflict, the most restrictive requirement takes precedence.
• Deed Conditions/Restrictions: Created by grantors; can run with the land forever or have a time limit. They cannot violate fair housing laws.
• CCNRs (Covenants, Conditions, and Restrictions): Rules established by developers or HOAs to maintain subdivision standards (e.g., architectural design, setback requirements).
• Homeowners Association (HOA):     * Contract: An agreement between the owner and the association.     * Fees: Owners are obligated to pay HOA fees.     * Regulations: Aesthetic choices (paint color, shingles) and landscaping.     * Enforcement: HOAs can levy fines or pursue enforcement in civil court.