Intro. to Planning Law-Govt Control of Zoning & Land USe

8/8/2019 Intro. to Planning Law-Govt Control of Zoning & Land USe

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Introduction to Law

Government Control of

Zoning & Land Use


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Law of Waste

When the ownership of land is divided between anowner of the possessory estate and an owner offuture interest, a problem often arises as to theextent of the privilege of the owner of the

possessory estate to change the premises over theobjection by the owner of the future interest.

The one in possession is forbidden such action aswill diminish the market value of the other interest;and he be required to act in the maintenance of theproperty by the payment of current charges and theprevention of its deterioration.


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Law of Nuisance

Public nuisance includes a great numberof interferences with the comfort, moralstandards, health, safety, and

convenience of the community.

Discharge of fumes

Explosives in public place

Offend public morals

Interfere with comfort

Upset public convenience

Violate criminal statute


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A private nuisance is an interference withthe use or enjoyment of land, other thanby direct physical invasion or trespass.

Unlike a public nuisance, a privatenuisance normally only affects a limited

number of landowners and typically

involves a dispute between adjoininglandowners.


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Eminent Domain

Government may control land in a varietyof ways.

Eminent domain the power to takeprivate property for public use (or for apublic purpose) without the owners

consent.

May be delegated.

Just compensation must be given


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Control of Land Use by Zoning

In urban areas the most important form ofgovernmental land use control is zoning.

Zoning is an extension of the concept ofpublic nuisance by legislation.


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In 1916, New York City was the firstAmerican municipality to adopt acomprehensive scheme of building and

land use regulations based upon thecreation of a number of districts or zones.

The regulations were prospective in their

operation, and were intended to supply arational basis for future buildingdevelopment in New York City.


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Euclid v. Ambler Realty Company

The US Supreme Court found that thegeneral exclusion of all industrial

establishments from all but two of the six

use districts created by the Euclid zoning

ordinance was clearly a reasonableexercise of the police power, relying

heavily on the analogy to the law of

nuisance, although some industries of aninnocent character might fall within theprescribed class.


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Zoning to Control Land Uses &

Building Types

Zoning Ordinances divide the relevantarea either a municipality or a countyinto two or more districts and prescribe

use, bulk, and area or densityregulations for each district. The

ordinance includes a zoning map which

delineates the various districts, and thetext of the ordinance sets out theregulation applicable in each district.


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Belle Terre v. Boraas

Government may use its power to lay out

zones where family values, youth values,and the blessings of quiet seclusion and

clean air make the area a sanctuary forpeople.


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If the zoning ordinance excludes a type ofhousing designed to meet the needs oflow and/or moderate income households

e.g., mobile homes or high-densityapartments such exclusion is likely to be

held invalid.


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Zoning is a system of land use regulationexercised by local governments and issometimes referred to as zoning planning.

Zoning regulations govern the types ofactivities that are acceptable on particular

lots


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The primary purpose of zoning is tosegregate uses that are thought to beincompatible; in practice, zoning is used

as a permitting system to prevent newdevelopment from harming existing

residents or businesses. Zoning is

commonly controlled by local governments


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Most zoning systems have a procedure forgranting variances (exceptions to thezoning rules), usually because of some

perceived hardship caused by theparticular nature of the property in

question.


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Zoning codes have evolved over the yearsas urban planning theory has changed,legal constraints have fluctuated, and

political priorities have shifted. The variousapproaches to zoning can be divided into

four broad categories: Euclidean,

Performance, Incentive, and Design-based.


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Zoning ordinances and regulations arelaws that define and restrict how you canuse your property.


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Why Zoning Is Such a Big Issue?

Zoning laws come into play on every single realestate development, regardless of how big orsmall.

One zoning use is typically not compatible withanother. For example, a commercial buildingusually cannot be constructed on property that'szoned for residential uses.

If you buy open ground to build your dreamhouse that is in an agricultural zoning, you maynot be able to build it without a change in thezoning.


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Getting the zoning changed on property isa very difficult process. It requires aprocess of giving public notice and then

having a variance approved bygovernment agencies that oversee

enforcement of the zoning plan.


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Zoning Restrictions

Use requirements refer to how property canbe used. Typical zonings categories include:

Residential

Commercial

Industrial

Agricultural

Recreational


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Use Restrictions

The height and overall size of buildings

Their proximity to one another What percentage of the area of a building

lot may contain structures

What particular kinds of facilities must beincluded with certain kinds of uses


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Bulk Requirements

The height and size restrictions onbuildings including the number of stories in

a building. The square feet of space which a building

provides.

The percentage of area it covers on abuilding lot.

The minimum lot size requirements, if any.


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The setback and side-yard

Requirements of a zoning ordinance referto the distance between the front and backproperty lines and the distance from theside property lines.


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Subdivisions

Land is divided up into legal parcels. If you ownland and want to divide it up, you have to gothrough an authorization process to create new

legal parcels. At a minimum, these rules would include

requirements that a developer prepare a siteplan or a subdivision map, which is a

comprehensive map showing the planned use ofa particular property, in detail.


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Zoning Problems

Non-Conforming Use - Existingproperties are often used in a mannerthat's inconsistent with a new zoning

ordinance. Such uses are referred to as"non-conforming" uses because they don't

"conform" to the requirements of the

zoning ordinance.


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Amortization - is another way to limit non-conforming uses. Under this approach, a non-conforming use is permitted to continue for a

specific period of time, after which it must beconverted to a conforming use.

Conditional Use - A conditional use is a usewhich is permitted under a zoning ordinance, but

which must meet certain conditions.


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Variance & Spot Zoning

A variance or special use permit is anexception to the requirements of a zoningordinance.

Spot Zoning - Local land use plans andzoning ordinances usually containrestrictions on land uses in specific areas

(or zones) outlined in the plan orordinance.


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Urbanization

The rapid urbanization of the last centuryhas resulted in a significant amount ofslum habitation in the major cities of the

world, particularly in Developing Countries. There is significant demand for planning

resources and strategies to address theissues that arise from slum development,and many planning theorists andpractitioners are calling for increasedattention and resources in this area


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Urban Decay is a process by which a city,or a part of a city, falls into a state ofdisrepair.

It is characterized by depopulation,property abandonment, highunemployment, fragmented families,

political disenfranchisement, crime, anddesolate and unfriendly urban landscapes.


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There is no single cause of urban decay,though it may be triggered by acombination of interrelated factors,

including urban planning decisions, thedevelopment of highways,

suburbanization, redlining, immigration

restrictions and racial discrimination.


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Urban Renewal

Is a controversial US program of land re-development in areas of moderate to highdensity urban land use. This process began anintense phase in the late 1940s and continues to

the present day. It has a major impact on theurban landscape.

Any reconstruction plan proposed, needs to besensitive to the needs of the community and itsexisting culture, businesses, and needs.


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Urban renewal is extremely controversial, andtypically involves the destruction of businesses,the relocation of people, and the use of eminent

domain (known as Compulsory Acquisition) as alegal instrument to reclaim private property forCity-initiated development projects.

The justifications often used for Urban Renewal

include the "renewal" of residential slums,blighted commercial and industrial areas.


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Urban renewal's effect on actualrevitalization is a subject of intensedebate. It is seen by proponents as an

economic engine, and by opponents as aregressive mechanism for enriching thewealthy at the expense of taxpayers andthe poor. It carries a high cost to existing

communities, and in many cases resultedin the destruction of vibrantif run-downneighborhoods.


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Urban renewal in its original form has been called afailure by many urban planners and civic leaders, andhas since been reformulated with a focus onredevelopment of existing communities. However, many

cities link the revitalization of the central business districtand gentrification of residential neighborhoods to earlierurban renewal programs.

Over time, urban renewal evolved into a policy basedless on destruction and more on renovation and

investment, and today is an integral part of many localgovernments, often combined with small and bigbusiness incentives.


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History of Urban Renewal

Urban renewal goes back to the work ofRobert Moses in the redevelopment ofNew York City and New York State from

the 1930s to the 1970s. Moses directedthe construction of new bridges,highways, housing projects, and public

parks.


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Reactions Against Urban Renewal

In 1961, Jane Jacobs published The Death and Life ofGreat American Cities, one of the firstand strongestcritiques of contemporary large-scale urban renewal.

In 1964, the Civil Rights Act removed racial deedrestrictions on housing. This began desegregation ofresidential neighborhoods, but redlining continued tomean that real estate agents continued to steer ethnicminorities to certain areas. The riots that swept cities

across the US from 1965 to 1967 damaged or destroyedadditional areas of major citiesmost drastically inDetroit.


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From Urban Renewal to CommunityDevelopment

Currently, a mix of renovation, selectivedemolition, commercial development, and taxincentives is most often used to revitalize urbanneighborhoods.

Though not without its criticsgentrification isstill controversial, and often results in familiarpatterns of poorer residents being priced out ofurban areas into suburbs or more depressedareas of citiesurban renewal in its presentform is generally regarded as a greatimprovement over the policies of the middle partof the 20th Century.


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Today many cities seek to establish a process ofurban renewal which enables local citizens tohave greater control and ownership of thedirection of their community and the way in

which it overcomes market failure. This supports important themes in urbanrenewal today, such as participation,sustainability and trust - and government actingas advocate and 'enabler', rather than aninstrument of command and control.

During the 1990s the concept of culture-ledregeneration gained ground.


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Suburbanization

In some countries declining satisfactionwith the urban environment is held to blamefor continuing migration to smaller towns and

rural areas (so-called urban exodus). Successful urban planning supportedRegional Planning can bring benefits to amuch larger area or region and help to

reduce both congestion along transportroutes and the wastage of energy implied byexcessive commuting.


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Environmental Planning

Environmental protection and conservationare of utmost importance to many planningsystems across the world.

Not only are the specific effects ofdevelopment to be mitigated, but attemptsare made to minimize the overall effect of

development on the local and globalenvironment.


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Sustainable Development & Sustainability

Have become buzzwords in the planningindustry, with the recognition that presentways of consumption and living have led

to problems like the overuse of naturalresources, ecosystem destruction, urban

heat islands, pollution, growing inequality

in cities, the degradation of human livingconditions and human-induced climatechange.


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Stephen Wheeler, in his 1998 article,suggests a definition for sustainable urbandevelopment to be as "development thatimproves the long-term social andecological health of cities and towns."


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These include compact, efficient land use;less automobile use yet with betteraccess; efficient resource use, less

pollution and waste; the restoration ofnatural systems; good housing and living

environments; a healthy social ecology;

sustainable economics; communityparticipation and involvement; andpreservation of local culture and wisdom.


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Other issues that generate strong debate

amongst urban designers are tensionsbetween peripheral growth, increasedhousing density and planned new

settlements.

There are also unending debates aboutthe benefits of mixing tenures and land

uses, versus the benefits of distinguishinggeographic zones where different usespredominate.


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Sustainable Development Plan

The Plan is sometimes referred to as aComprehensive or "Master Plan" or "General Plan."It is a community's general guide for making land usedecisions.

It usually describes how the community wants to grow,where the community wishes various land uses to takeplace and what the community wants to look like.

In many ways the Plan is a reflection of the

community's values. As such, this Plan is a continuationof previous plans and other efforts to bring about amore efficient, functional and beautiful community.


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The Sustainable Development Plan isBoth a Short AND Long-RangeDocument - It is tempting to view some of

the elements of the SustainableDevelopment Plan as unrealistic.

However, consider the fact that a plan is

intended to be a long-range look into thefuture. This Plan is considered to be a lookat least 20 years into the future.

Th l l f l i


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Three level process of regulating

land uses:

The Sustainable Development Plan guidesbroad decisions regarding Land Use (such asrezoning).

The Zoning Plan or Development Orderfollows the basic land use pattern established inthe Comprehensive Plan and assigns specificdensities and uses to individual parcels of land.

The Subdivision Regulations and BuildingPermit process implement the requirements ofthe Zoning Plan.


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Comprehensive Plan
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The zoning designationgiven to a parcel isusually based on the land use designationgiven to that area in the Plan.

For example, an area that is designated"low density residential" in the Plan wouldsubsequently be zoned for single familylots (rather than apartments or a gasstation) and only one permit for a single,residential home would be granted foreach lot.


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The Land Use plan indicates general density

ranges and indicates how development is to belocated on the land, with special regard topreserving natural features.

The Zones in the Zoning Map are legaldesignations that assign a specific overall

density to a specific tract of land. In most cases,the zoning is uniformly applied to a whole parcelof land.

By contrast, the Land Use Plan follows

landforms; floodplains and road patterns (ratherthan ownership boundaries) it indicates moregenerally how land uses should be arranged onthe land.


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F t U d t t th
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Future Updates to the

Sustainable Development Plan

Since the purpose of the SustainableDevelopment Plan is to guide developmentaccording to the goals and needs of thecommunity, the Plan should be changed as theneeds of the community change. If it is to be aneffective guide for decision-making, the Planshould be kept reasonably current. This means

that the Council should amend theComprehensive Plan as often as necessary toreflect changes in policy directions and needs.


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Zoning Plan


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Land Use Plan


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Components of Land Use Study

A. Existing Land Use

A. Sub-Area

B. Sub-Area

C. Sub-Area

B. Existing Density Patterns

C. Existing Zoning

D. Existing Circulation Pattern


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E. Recommended Land Use PlanA. Mission Statement

B. Goals & PoliciesA. Zoning, Land Use Controls & Development

B. Residential Land Use & CharacterC. Commercial Land Use

D. Economic Development

E. Traffic & Circulation

F. Appearance Visual Character & Environmental Quality

F. Future Land Use

G. Density


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H. Recommended ZoningA. Urban Design/Streetscape

B. Vehicular Circulation

I. Land Use Development Guidelines & Standards

A. General CriteriaB. Density

C. Site Planning/Open Space & Green Areas

D. Building Design & Orientation

E. Grading & Drainage

F. CirculationG. Pedestrian Circulation

H. Lightening

I. Screening & Buffering


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Key Tasks

1. Desk Top Research

2. Preliminary Analysis of the various sectors ofplanning

3. Creation of Land Use Classification4. Execution of Fieldwork & Combined Analysis

5. Preliminary Land Use Assessment/Zoning

Plan6. Production of Zoning Plan

7. Report formulation & Submission


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Cases for Review

Boomer v. Atlantic Cement Co., Inc., 26N.Y.2d 219 (1970)

Village of Euclid v. Ambler Realty, 272

U.S. 365 (1926)

Berman v. Parker, 348 U.S. 26 (1954)

Belle Terre v. Boraas, 416 U.S. 1 (1974)

Penn Central Transportation Co. v. City of

New York, 438 U.S. 104 (1978)

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Intro. to Planning Law-Govt Control of Zoning & Land USe

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