Chapter Ten: Public and Private Restrictions on Use of Land

REAL ESTATE AND PROPERTY LAW FOR PARALEGALS - CHAPTER TEN: PUBLIC AND PRIVATE RESTRICTIONS ON USE OF LAND

PUBLIC RESTRICTIONS ON PRIVATE LAND

  • Numerous public restrictions limit an owner’s ability to use real property.

CHAPTER OBJECTIVES

  • Describe the nature and purpose of zoning regulations.

  • Explain the importance of urban planning.

  • Define important state and federal laws that affect the rights of private landowners.

  • Explain the importance of restrictive covenants.

  • Describe the area of nuisance law.

INTRODUCTION

  • Examination of various ways a landowner’s use of land can be restricted.

  • Impact of public laws such as zoning and federal environmental laws on private landowners.

  • Inclusion of private restrictions, often in the form of restrictive covenants.

PUBLIC RESTRICTIONS

ZONING

  • Zoning regulations restrict how private and business landowners may utilize their property.

  • Local governments impose zoning rules and regulations stemming from police power granted by state and federal constitutions.

  • Typically enacted by municipalities with a certain level of development.

4 PRIMARY PURPOSES OF ZONING LAWS

  • Promote health and morals.

  • Reduce traffic congestion and improve traffic flow.

  • Enhance safety from fire and other potential hazards.

  • Provide adequate heat, light, and airflow for residents.

ZONING AS PLANNING TOOL

  • Zoning is frequently used as a tool by local governments for controlling development and utilizing space effectively.

  • Enacted as a form of protective legislation.

LEGALITY OF ZONING ORDINANCES

  • Zoning is typically seen as a constitutional interference with the individual's property rights.

  • Courts uphold most zoning ordinances unless proven unconstitutional.

  • Example: Zoning prohibiting specific ethnic groups from property ownership is inherently unconstitutional.

ZONING LAWS VS. BUILDING CODES

  • Distinction drawn between zoning laws and other municipal ordinances such as building codes.

  • Building codes focus on safety, specifying how buildings can be constructed, with broader latitude than zoning ordinances.

AESTHETIC ZONING

  • Some municipalities enact zoning ordinances to regulate overall architectural appearance.

  • May enforce design standards, such as minimum setbacks from roads.

ENFORCING ZONING REGULATIONS

  • Courts require zoning regulations to focus on safety, health, and general welfare issues.

  • Zoning ordinances exceeding these topics may be declared excessive or over-broad.

  • Examples of permissible objectives include controlling traffic, noise, or pollution.

TYPES OF ZONING CATEGORIES

  • Zoning categories are classified broadly into three:

    • Residential

    • Commercial

    • Industrial

RESIDENTIAL

  • Types of residential classifications include detached homes, single-family residences, townhouses, apartments, and assisted-living facilities.

COMMERCIAL

  • Commercial classifications encompass a variety of business establishments, emphasizing total square footage, fire, safety issues, and minimum setbacks.

INDUSTRIAL

  • Covers light, medium, and heavy industrial classifications with regulations pertaining to structure placements concerning residential areas and limitations on specific processes.

EXCEPTIONS TO ZONING CLASSIFICATIONS

  • Three categories may allow structures to continue usage despite zoning non-conformity:

    • Nonconforming use

    • Conditional use permit

    • Variance

NON-CONFORMING USE

  • Classification for structures predating zoning regulation enactment, which cannot be forced to close or adjust usage due to new ordinances.

CONDITIONAL USE PERMIT

  • Permits allow businesses to operate in residential areas when providing essential services (e.g., grocery stores or gas stations).

  • Issuance is highly limited.

VARIANCE

  • Exception from zoning classifications granted by a zoning board, allowing some flexibility in use restrictions.

UNCONSTITUTIONAL OR ILLEGAL ZONING REGULATIONS

  • Historical misuse of zoning rules for discrimination against individuals.

  • RATIONAL BASIS TEST: Zoning ordinances must justify their purpose by demonstrating a connection to the ordinance's ultimate goal (health, safety, etc.).

  • Certain classifications are deemed suspect.

“SPOT” ZONING

  • Spot zoning involves treating a particular parcel with special rules.

  • Generally, courts disfavor spot zoning as it prioritizes singular parcels over the broader community.

CRITERIA TO IDENTIFY INSTANCES OF ILLEGAL SPOT ZONING

  • Ordinance targets a singular parcel or limited area.

  • Inconsistency with neighboring zoning classifications.

  • Lack of community benefit, leading to arbitrary or capricious classifications.

BUILDING CODES

  • Local/state rules governing construction methods, installation of HVAC systems, plumbing, and electrical work.

PLANNING BOARDS

  • Responsible for managing local community development through long-term studies to improve local residents' quality of life and reduce congestion, noise, and pollution.

HISTORICAL DISTRICTS

  • Areas designated as historical districts receive special protections at local/state levels, including tax incentives and restrictions on renovations.

URBAN PLANNING

  • Urban planning focuses on the long-term enhancement of community value and living standards.

  • Key considerations include:

    • Land use: Management of land development.

    • Infrastructure: Designing roads, parks, etc.

    • Transportation: Community mobility.

    • Social systems: Community interaction.

    • Environmental considerations: Resource preservation and pollution reduction.

    • Economic development: Business attraction and retention.

    • Social equity: Addressing social justice and economic opportunities.

INTERSTATE LAND SALES FULL DISCLOSURE ACT

  • Requires land promoters to disclose critical information when selling 25 or more lots near Interstate Highway.

  • Required disclosures include:

    • Owners' identities of subdivided land.

    • Physical property descriptions (e.g., farmland, swamp).

    • Utility access descriptions.

    • Condition of access roads.

ENVIRONMENTAL ISSUES

  • Clean Water Act establishes stringent guidelines for wetland usage, defining wetlands broadly to include areas supporting vegetation suited for saturated soils (e.g., swamps, marshes).

THE SUPERFUND

  • CEQCRA imposes a tax on industries to fund hazardous site cleanups.

  • Prohibits development on certain hazardous sites, generates cleanup funds, and imposes liability on creators of hazardous waste sites.

PRIVATE LAND RESTRICTIONS

  • Various private restrictions influence land use, primarily through restrictive covenants.

RESTRICTIVE COVENANTS

  • Control minimum setbacks, architecture, lot sizes, etc.

  • Imposed through deeds or public records; they "run with the land," remaining binding on future owners regardless of property ownership changes.

CREATING COVENANTS

  • A restrictive covenant is essentially a contract.

  • Can be created through:

    • Inclusion in a deed.

    • Recording in public records.

    • Recording a subdivision plat with covenants.

TOUCH AND CONCERN

  • Valid restrictive covenants must concern the real estate, rather than the parties, termed as "touch and concern" the land.

TYPICAL COVENANTS

  • Establish minimum lot sizes.

  • Limit property usage to residential only.

  • Restrict number of outbuildings allowable.

  • Prohibit certain animals (e.g., farm animals).

  • Require conformity to specific architectural styles.

RESTRICTIVE COVENANTS RUN WITH THE LAND

  • Once created, covenants apply to all future owners, not confined to current ownership.

ILLEGAL OR UNCONSTITUTIONAL COVENANTS

  • Restrictions based on race, religion, or nationality are legally unenforceable.

  • Legal covenants must focus solely on property use, devoid of discriminatory intent.

ENFORCING A COVENANT

  • Enforcement occurs through civil lawsuits initiated by adjoining landowners similarly bound by covenants.

  • Offending landowners can be sued for covenant violations.

TERMINATING RESTRICTIVE COVENANTS

  • Can be terminated in several ways:

    • Stated time period expires.

    • Abandonment by the protected individuals.

    • Substantial changes in neighborhood conditions.

    • Merger of affected properties.

STATED TIME PERIOD

  • Covenants may outline a specific duration; if absent, they are binding in perpetuity.

ABANDONMENT

  • Covenants can be deemed extinct if local owners neglect compliance for an extended period, rendering them ineffective legally.

CHANGED CONDITIONS

  • Covenants may be eliminated if original conditions are no longer relevant, determined by the substantial transformation in property usage.

MERGER

  • The doctrine of merger applies when a single individual owns all affected parcels.

  • Owning all but one does not invoke merger; restrictions remain in effect.

SUBDIVISION RULES AND REGULATIONS

  • Cities and towns possess the authority to adopt subdivision regulations for neighborhood oversight.

NUISANCE ACTIONS

  • Civil lawsuits permitting one landowner to sue another for disturbances affecting property enjoyment (e.g., leaking substances).

PUBLIC NUISANCE

  • Public nuisance affects citizen rights collectively, enabling government action on behalf of community safety.

  • Recent statutes enhance the validity of nuisance claims against corporations polluting resources.

PRIVATE NUISANCE

  • Private nuisance arises from neighbors’ activities impeding others' property use and enjoyment.