Urban Renewal and the Moses Method

Historical and Ethical Underpinnings of Land Use

• Land use law encompasses all regulations affecting land use and development
• Important actors include lawyers, planners, civil engineers, architects, and public interest groups
• Influenced by economics, environment, technology, science, etc.

Evolving Ethics

• Silent Spring (1960s) articulated the long-term consequences of human impact on nature
• Village of Euclid v. Ambler established zoning as a tool to control land use, recognizing the concept of police power to protect community health, safety, and welfare; and introducing the idea of land use as a parasite
• Home rule gives local governments more latitude in creating land use laws

Nuisance & the Quest for Utopia

• Early American land use was largely unregulated and individualistic
• The progressive era (1870s-1920s) saw a transition toward more regulated land use
• The belief that cities are more suitable for certain uses rather than others became more prevalent and shaped early zoning regulations - that prompted the development of the "Garden City" movement.

3 Magnets & the Garden City

• Early 20th Century urban congestion and desires fueled a movement for decentralized living and closer communities with nature
• Howards envisioned a "Garden city" composed of three magnets: cities, towns and rural areas to combine the best of both natural and civic amenities

Nuisance

• Nuisance is determined by a "reasonableness test" balancing the hardship, social values, and suitability of the property involved
• Four types of nuisance:
  • Nuisance per se: An always-undesirable act
  • Nuisance in fact: An action that is not inherently a nuisance but becomes so under specific circumstances

Private Nuisance

• Private nuisance is specific to individuals, rather than affecting the general public
• This involves an unreasonable interference with the use and enjoyment of someone's property

Public Nuisance

• Public nuisance hurts a significant portion of the community or neighborhood

Historical and Ethical Underpinnings of Land Use

• Land Use Law regulates the full range of laws and regulations that affect land ownership and use
• Important parties include lawyers, planners, civil engineers, and architects.

Historical overview of land use

• Early land use was very unrestricted
• Between 1870's and 1920's Americans flock to cities and started developing ideas of how to organize urban land use with business districts, housing, and recreational areas

The City of Tomorrow

• Idea that cities were dying because of infrastructure is incorrect
• American cities experienced a dramatic transformation from deteriorating infrastructure, poor housing and employment to modern metropolis

Modern Origins of Land Use Law

• Early 20th-century urban planners like Ebenezer Howard and others advocated for the development of garden cities to address urban congestion.
• New towns were developed as refuge from congestion

Background & First Comprehensive Zoning

• New York City's introduction of comprehensive zoning reflects changing demands for city management and urban land use during that time

Legislative Authority of Local Governments

• The authority of local governments is limited to specific areas as dictated by state enabling acts or constitutional provisions (e.g. home rule)

Zoning Enabling Act

• Zoning is a valid use of state power as long as it is reasonable, protects the health, wealth, safety, and morals of the community, and is not a total prohibition of use.

Building Inspector/Zoning Enforcment Officer

• Building inspectors and zoning enforcement officers manage zoning codes within municipalities.
• Boards can make exceptions.

Comprehensive Plan

• The comprehensive plan is a document containing goals, objectives, principles, policies, and standards for the long-range development of the community
• Zoning must be in harmony with the plan, and any individual zoning rules must be evaluated on the standard of whether they have a sufficient relationship to the plan.

Minority Views

• Some states do not require a comprehensive plan to be adopted before zoning laws are established; the local zoning laws do not need to consistently align with the comprehensive plan

Case Law

• In cases of challenges to zoning regulations, courts generally presume the validity of zoning regulations; the challenger has the burden to prove the regulation is arbitrary/unreasonable.

Property Rights & Zoning

• Property owners have vested rights, but the municipality can regulate use if there is a valid justification to protect the health, safety, morals, and general welfare of the community (i.e., the police power)
• Property that has previously been used in a way that was permitted may become a nonconforming use if the zoning changes and the previously permitted use is not now allowed.

Nonconforming Uses

• Nonconforming uses are permitted despite the zoning changes, but development can be restricted to maintain compliance with current zoning requirements.

Amortization

• Amortization is the gradual phasing out of nonconforming land use
• Not all amortization plans are legally permitted
• Municipalities can enforce amortization; however the municipality must prove the amortization reasonably relates to public welfare

Accessory Uses

• Accessory uses are subordinate to, incidental to, and customarily found in connection with the principal use.
• They are intended to be consistent with the general zoning plan; for example, a private garage is an accessory to a dwelling.

Home Occupations

• Home-based businesses or professions are often permitted, provided they do not substantially alter the nature of the neighborhood.
• Rules for permitted home-occupation uses varied by municipality and zoning code.

Subdivision Controls

• Subdivision controls regulate the division of raw land into smaller lots and are intended to encourage an orderly development of the land.

Environmental Impact Reviews

• Local governments are increasingly responsible for regulating nonpoint source pollution in conjunction with their comprehensive plans

Wetlands, Floodplains, and Steep Slopes

• Local laws often regulate development around rivers, wetlands, or steep terrain in response to a recognized need to protect natural resources.

Variances

• Zoning Boards of Appeals will modify existing regulations to allow for specific exemptions from the conditions.

Exactions and Impact Fees

• Exactions and impact fees, such as building requirements or fees, are often necessary to cover the costs of infrastructure or other services related to development.

Other

• The court will uphold a rational zoning decision if it is in furtherance of a legit state interest

Vested Rights

• Vested rights of a landowner are established in various ways, including approved conditional zoning, and development agreements

Development Agreements

• These are contracts between the municipality and the developer
• They lay out the terms of the agreement
• They outline the rights and responsibilities of both parties