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Land Use

Land Use. Control of unreasonable land use * deprive use or value of adjacent land HI * physical vs. “intangible” LO * permanent vs. temporary * hard to avoid vs. easy to avoid * intentional vs. unintentional * negligent vs. accidental * social value vs. “vice”

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Land Use

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  1. Land Use Control of unreasonable land use * deprive use or value of adjacent land HI * physical vs. “intangible” LO * permanent vs. temporary * hard to avoid vs. easy to avoid * intentional vs. unintentional * negligent vs. accidental * social value vs. “vice” (community standards)

  2. Land Use • Damages vs. injunctive relief • Proof of standard can be difficult (Salt Lake City case) • Easier to support control rather than prohibition • Class action helps groups of small land owners when confronted by large land owner

  3. Land Use • Soil Support- rights extend to lateral support of adjoining land <Case 1> My land Your land Your land My land Both parcels unimproved You excavated- my land is diminished

  4. Land Use • Soil support <Case 2> Your land My land My land Your land My parcel is improved Did my improvements cause loss of land?

  5. Land Use • Must use reasonable care • Many jurisdictions have excavation statutes for notification and protection of adjacent structures • Must also be careful not to interfere with the natural flow of water- strictly liable • Slowly adopting reasonable use rules: (necessity, care, benefit vs. harm, acommodation and improvement)

  6. Land Use • Easements • Light and shadow • Air flow • Views • Access to public spaces or utilities • Restrictions of air space

  7. Land Use • Grantor can control subsequent use through “restrictive covenants” • Very common in housing developments, industrial parks, and government supported (subsidized) developments • Can bind all sellers and buyers through purchase agreements and deeds • Can be quite rigid- usually have to do with use (no animals or businesses on premises) • Are increasingly being used for architecture and aesthetics

  8. Land Use • Public control through land planning, zoning, and regulations (FAR, parking, tax incentives, etc.) • Condemnation and eminent domain rights are limited. • Must be for the “public good” and must provide reasonable compensation for existing land owner • Does not apply to nuisance, arrearage, and abandonment

  9. Land Use • Flexibility in land controls and planning • Variances and special use permits • Nonconforming uses- amortization periods, grandfather clauses (root beer maker in BWCA) • If too many variances are granted, it can be hard to prove “non-conforming use” • Rezoning- usually requires consent of adjoining land owners • Contract and bonus zoning- rehabilitation or re-development, public-private partnerships, planned growth, community or village concept, similar to planned unit development for unimproved land

  10. Land Use • Environmental control and liability • Clean air and clean water act • EPA laws of late 1960’s and early 70’s • Jurisdictional disputes • Problems with national level policies • Moving towards cooperation and technical support as opposed to confrontation and enforcement

  11. Land Use • Managing growth and new technologies • Air rights • Mineral rights • Brownfield developments • Redevelopment • Mixed use requirements • Community based decision making

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