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Land-Use Control

From lawbrain.com

Activities such as zoning, the regulation of the development of real estate, and city planning.

Land-use controls have been a part of Western civilization since the Roman Empire in 450 B.C. promulgated regulations concerning setback lines of buildings from boundaries and for distances between trees and boundaries. Regulations on the use of land existed in colonial America, but the demand for public regulation of real estate development did not become significant until the twentieth century. As the United States shifted from a rural to an urban society, city governments sought to gain control over the location of industry, commerce, and housing. New York City adopted the first comprehensive zoning ordinance in 1916. By the 1930s zoning laws had been adopted in most urban areas.

The development of master plans and zoning regulations became an accepted part of urban life. Following world war ii, housing patterns shifted from the inner city to suburbia. The suburbanization of the United States led to the creation of discrete housing developments. Growing suburban communities began imposing regulations on the amount and type of housing that would be allowed within their municipal boundaries. Beginning in the 1970s, as urban sprawl created problems that crossed municipal borders, attention turned to regional planning. Concerns about the environment and historic preservation led to further regulation of land use.

Federal, state, and local governments, to varying degrees, regulate growth and development through statutory law. Nevertheless, a majority of controls on land stem from actions of private developers and government units. The use of land can be affected by judicial determinations that frequently arise in one of three situations: (1) suits brought by one neighbor against another, (2) suits brought by a public official against a neighboring landowner on behalf of the public at large, and (3) suits involving individuals who share ownership of a particular parcel of land.


Private Land-Use Restrictions

A number of restrictions on land are a result of actions by government units. Many restrictions, however, are created by land developers. Such devices take several forms and can be either positive or negative in nature. They include defeasible fees, easements, equitable servitudes, and restrictive covenants.

Defeasible Fees In defeasible fee estates, the grantor gives land to the grantee, subject to certain conditions. For example, A might convey a parcel of land to B, provided that it be used for school purposes. The effect of the defeasible fee is that it restricts the use of the property by the possessor. Failure to observe the conditions causes the property to revert to the grantor. Estates of this type are no longer favored in most jurisdictions, because they make the transfer of land cumbersome and do not take into account unforeseen situations. The limited scope of defeasible fees makes them of limited value.

Easements Easements are rights to use the property of another for particular purposes. A common type of easement in current use is the affirmative grant to a telephone company to run its line across the property of a private landowner. Easements also are now used for public objectives, such as the preservation of open space and conservation. For example, an easement might preclude someone from building on a parcel of land, which leaves the property open and thereby preserves a park for the public as a whole.

Equitable Servitudes Equitable servitudes are land-use restrictions enforceable in a court of equity. They are created by the language of the promise in the form of a covenant (agreement) between two individuals. For example, suppose A owns a parcel of land on the edge of a city that A subdivides the parcel into ten lots, numbered 1 to 10. A then records a declaration of restrictions, limiting each of the ten lots to use solely for family dwelling, providing that only a single-family house may be built on each lot. A sells the lots to ten people, and each deed contains a reference to the declaration of restrictions by record book and page number, coupled with a provision that the person purchasing the lot and all successive purchasers of the lot are bound by the restrictions.

Restrictive Covenants Restrictive covenants are provisions in a deed limiting the use of the property and prohibiting certain uses. They are similar in effect to equitable servitudes, but restrictive covenants run with the land because the restrictions are contained in the deed. Restrictive covenants are typically used by land developers to establish minimum house sizes, setback lines, and aesthetic requirements thought to enhance the neighborhood. The legal differences between equitable servitudes and restrictive covenants are less important today, as courts have merged the terms into one general concept.

The Master Plan and Official Map

Municipal land-use regulation begins with a planning process that ultimately results in a comprehensive or master plan followed by ordinances. These ordinances involve the exercise of the municipality's police power through zoning, regulation of subdivision developments, street plans, plans for public facilities, and building regulations. Many states provide for the creation of an official map for a municipality. The map shows the location of major streets, existing and projected public facilities, and other such landmarks. Developers must plan their subdivisions in accordance with the official map.

The master plan takes into account the location and type of activities occurring on the land and the design and type of physical structures and facilities serving these activities. Long-range projections of population and employment trends are considered. The planning process is designed to enable a locality to plan for the construction of schools, streets, water and sewage facilities, fire and police protection, and other public amenities, and the private use of land is controlled by zoning and subdivision ordinances enacted in compliance with the plan.

Since the 1970s more emphasis has been placed on regional and statewide planning. These planning initiatives have often been based on environmental concerns. Regional planning has become attractive to urban areas that cross state lines. Instead of dealing with two or three competing and conflicting local plans, neighboring municipalities can refer to a regional plan that offers one comprehensive vision and one set of regulations.


Zoning is the regulation and restriction of real property by a local government. It is the most common form of land-use regulation, as municipalities rely on it to control and direct the development of property within their borders, according to present and potential uses of the property. Zoning involves the division of territory based on the character of land and structures and their fitness for particular uses. Consideration is given to conserving the value of property and encouraging the most appropriate use of land throughout a particular locality.

A municipality's power to enact zoning regulations is derived from the state in an exercise of its police power. Police power is the inherent power of the government to act for the welfare of those within its jurisdiction. The power to impose zoning restrictions is conferred on a municipality by a state enabling statute.

Zoning laws are intended to promote the health, safety, welfare, convenience, morals, and prosperity of the community at large, and are meant to enhance the general welfare rather than to improve the economic interests of any particular property owner. They are designed to stabilize neighborhoods and preserve the character of the community by guiding its future growth.

The essential purpose of zoning is to segregate residential, commercial, and industrial districts from one another. Within these three main types of districts there may be additional restrictions as to population density and building height. The use of property within a particular district is for the most part uniform. For example, if a district is zoned for industrial use, residential buildings are not normally permitted there. However, if a residential building predates the zoning plan, it is permitted to remain. This exception is called a nonconforming use.

Municipalities exercise wide discretion in fixing the boundaries of commercial and industrial districts. A number of ordinances have been enacted to protect residential zones from encroachment by gasoline stations, public parking facilities, businesses selling intoxicating liquors, and factories that produce smoke or odors.

When enacting zoning ordinances, a municipality takes many factors into consideration. The most significant are the density of the population; the site and physical attributes of the land involved; traffic and transportation; the fitness of the land for the permitted use; the character of neighborhoods in the community; the existing uses and zoning of neighboring property; the effect of the permitted use on land in the surrounding area; any potential decrease in property values; the gain to the public at large weighed against economic hardships imposed on individual property owners; and the amount of time that the property has remained unimproved, reviewed in the context of land development in the area as a whole.

Exclusionary zoning is the practice of using the zoning power to develop the parochial interests of a particular municipality at the expense of surrounding regions. Its purpose is to advance economic and social segregation. Exclusionary zoning involves using zoning to take advantage of the benefits of regional development without being forced to bear the burdens of such development, as well as using zoning to maintain particular municipalities as enclaves of affluence or social homogeneity. Both practices have been strongly condemned in the courts, since they violate the principle that municipal zoning ordinances should advance the general welfare.

Exclusionary zoning takes various forms, such as requirements setting a minimum lot size or house size, the prohibition of multifamily housing, and the prohibition of mobile homes.

A municipality has a legitimate interest in ensuring that residential development proceeds in an orderly and planned manner and that the burdens on municipal services do not increase faster than the ability of services to expand. It must also preserve exceptional environmental and historical features. Increasingly, however, exclusionary techniques have come under fire as unfair ways of preventing the creation of economically, racially, and socially diverse communities.


Nuisance is an unreasonable, unwarranted, or illegal use by an individual of his or her own property, that in some way injures the rights of others. A nuisance action ordinarily arises between two neighboring landowners or is brought by a government attorney. The person initiating the nuisance action seeks to control or limit the use of the land that is creating the nuisance. Nuisance is based on the principle that no one has the right to use property in a manner such as to injure a neighbor.

A private nuisance arises when there is an interference with the use or quiet enjoyment of land without an actual trespass or physical invasion. For example, A might sue B, alleging that constant loud noises by B amount to a nuisance to A and A's property, which may or may not adversely affect other property in the area.

A public nuisance extends further than a private nuisance, since it adversely affects the health, morals, safety, welfare, comfort, or convenience of the general public. Statutes in many states precisely define what constitutes a public nuisance. Common examples are water and air pollution, the storage of explosives under dangerous conditions, houses of prostitution, the emission of bad odors or loud noises, and the obstruction of public ways.

A nuisance can be both private and public, since certain activities may be sufficient to constitute a public nuisance while still substantially interfering with the use of the adjoining land to such a degree that a landowner may sue on the ground that a private nuisance is present. Private nuisance refers to the property interest affected, as opposed to the type of conduct.

Nuisances may occur in rural as well as urban areas, but they become more obvious when the area is well established as residential in nature. The fact that an activity of a certain type is permitted in an area under the zoning ordinance does not mean that it may not be stopped if it develops into a nuisance. If an otherwise legitimate activity threatens the health or safety of the community in general, it can be classified as a public nuisance. Usually, however, very little relief is available for someone who intentionally locates in an industrial area.


Waste laws prohibit the unreasonable or improper use of land by someone who is in rightful possession of the land. The most common relationship between waste-law litigants is that of landlord and tenant, but waste laws also apply to grantors and grantees, and owners of land for life and their successors.

Waste comes in four forms: voluntary, permissive, ameliorating, and equitable. An intentional act that diminishes the value of land constitutes voluntary waste. Permissive waste is the omission of expected maintenance to land or its property. Ameliorating waste is a land use that is not authorized by the owner but nevertheless improves the value of the property. Finally, if a use is inconsistent with the land's highest use, a person holding a future interest in the land may bring an equitable waste action against the possessor.

A successful action for waste usually results in the awarding of money damages, but courts sometimes issue an injunction. This means that the landowner can obtain a court order preventing the possessor from engaging in wasteful acts. If a landowner can show a substantial likelihood of harm if such an order is not issued, and that no other satisfactory legal remedies exist, an injunction may be issued.

Eminent Domain

Eminent domain is the right or power of a unit of government or a designated private individual to take private property for public use, following the payment of a fair amount of money to the owner of the property. The Fifth Amendment to the U.S. Constitution provides, "[N]or shall private property be taken for public use, without just compensation." This statement is commonly referred to as the Takings Clause. The theory behind eminent domain is that the local government can exercise such power to promote the general welfare in areas of public concern, such as health, safety, or morals.

Eminent domain may be exercised by numerous local government bodies, including drainage, levee, or flood control agencies; highway or road authorities; and housing authorities. For example, if a city wishes to build a new bridge, and the land it needs is occupied by 60 houses, it may use its eminent domain power to take the 60 houses, remove the buildings, and build the bridge. The government must make just compensation to the affected property owners, who are entitled to the fair market value of the property.

The power of eminent domain is exercised through condemnation proceedings. These proceedings establish the right to take the property by the government or designated private individual (usually Public Utilities) and the amount of compensation to be paid for the property.

The U.S. Supreme Court has examined the relation between land-use regulations and the Takings Clause. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), the Court held that a total deprivation of economic use amounts to a taking for which damages may be awarded. Lucas involved a developer who had purchased coastal lots to construct two single-family residences. A South Carolina law, which sought to protect the eroding shoreline, prohibited him from building anything except wooden walkways and a wooden deck. The Supreme Court agreed that he was entitled to compensation because this was a regulatory taking.

In Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), the Court limited government power to take private property for the public good. The Court ruled that a city cannot force a store owner to make part of the owner's land a public bike path in exchange for a permit to build a larger store. The decision makes it more difficult for municipalities to require that land developers give up for public purposes part of their property, including sidewalks, access roads, and parks. If the government needs the land, it must compensate the owner.

Historic Districts

Since the 1950s more attention has been paid to the preservation of historic districts. Purchase or condemnation by the government for historic preservation purposes is valid. More important, acts establishing historic districts have been upheld as promoting the public welfare. State and local preservation laws have been bolstered by the federal National Historic Preservation Act of 1966 (16 U.S.C.A. § 47 et seq.), which provides a procedure for registering buildings as historic landmarks. Apart from establishing a national register of historic sites, the act provided for the protection and restoration of historic sites and districts.

Environmental Controls

Environmental law and regulation have significantly affected land development. With the passage of the national environmental policy act of 1969 (NEPA) (42 U.S.C.A. § 4321 et seq.), the public and private sectors were obligated to conform to certain environmental standards. The interrelationship of the objectives of NEPA and more traditional forms of land-use control under police power are illustrated by NEPA's stated objectives, which relate not only to the environment but also to ensuring aesthetically pleasing surroundings, protecting health and safety, preserving historic and cultural heritage, and preserving natural resources.

NEPA requires that every federal agency submit an environmental impact statement (EIS) with every legislative recommendation or program proposing major federal projects that will most likely affect the quality of the surrounding environment. An EIS may be required for projects such as the rerouting of an interstate highway, construction of a new dam, or expansion of a ski resort on federally owned land.

The EIS is a tool to assist in decision making, providing information on the positive and negative environmental effects of the proposed undertaking and alternatives. The EIS must also examine the effect of not implementing the proposed action. This "no-action" alternative may result in the agency's continuing to use existing approaches. Although NEPA requires agencies to consider the environmental consequences of their actions, it does not force them to take the most environmentally sound alternative, nor does it dictate that they pursue the least expensive option.

The effect of environmental policies on land use has been substantial. State governments followed the lead of the federal government and passed statutes that create water and air pollution control agencies. Some states require EISs, and a number have comprehensive legislation.

Land-Use Conflicts

Government and judicial bodies usually attempt to make land-use policies responsive to emerging concerns and developing needs. Conflicts result from situations in which localities attempt to block or ignore those needs or from situations in which the response is challenged as an overextension of the police power. The complexity of urban problems and the growth of urban areas place constant tension on the land-use process.

Nor is it just the urban land-use that causes tension between the government and landowners. Decisions to set aside undeveloped or rural land for governmental use causes controversy as well. An example of this practice is the decision by the federal government in 2002 to set aside Yucca Mountain in Nevada for storing the nation's nuclear waste. Various landowners and Native American tribes, as well as the state of Nevada, have filed lawsuits attempting to stop this use of Yucca Mountain. With the population of states such as Nevada growing rapidly, resulting in a decrease of available land, these wrangles over land-use are anticipated to become more frequent.

Further Readings

Chapman, Stephen B., and Robert L. Glicksman. 1996. "Regulatory Reform and (Breach of) the Contract with America: Improving Environmental Policy or Destroying Environmental Protection?" Kansas Journal of Law Public Policy 5 (winter).

Ellickson, Robert C., and Vicki L. Been. 2000. Land Use Controls: Cases and Materials. 2d ed. Gaithersburg: Aspen Law & Business.

Feller, Joseph M. 1995. "'Til the Cows Come Home: The Fatal Flaw in the Clinton Administration's Public Lands Grazing Policy." Environmental Law 25 (summer).

Gorman, Tom. 2002. "Bush Makes Yucca Mountain Project Official." Los Angeles Times (July 24).

Juergensmeyer, Julian Conrad, et al. 2003. Land Use Planning and Development Regulation Law. St. Paul, Minn.: West.

Randolph, John. 2003. Environmental Land Use Planning and Management. Washington, D.C.: Island.

"Sagebrush Rebellion Dealt Setback." 1996. National Law Journal (April 1).

Salsich, Peter W., et al. 2003. Land Use Regulation. New York: American Bar Association.

See Also