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.
Planned Communities: Read the Fine Print
One in eight people in the United States live in planned communities, which include townhouses, condominiums, co-ops, and entire real estate developments containing single-family homes. A common feature of all planned communities is a homeowner association, which oversees the maintenance and administration of the real estate, especially the common areas shared by all owners. A board of directors of the association, elected by the property owners, enforces the community’s rules.
Planned communities often impose a number of restrictions on their members. These are typically contained in the real estate deed, which becomes a contract between the property buyer and the community. Purchasers are bound by these restrictions whether or not they read or understood them. The restrictions may cover a wide range of architectural and aesthetic limitations, and are believed to increase the value of property in the community. Unwary residents may find the limitations extreme.
Residents of planned communities have faced limitations on things such as paint colors, pets, sports and sporting equipment, and outdoor decorations. Under such restrictions homeowners have been threatened with fines for stringing Christmas lights, taken to court because their dog was too heavy, and prohibited from throwing a Frisbee. Association dues can be used to pay for a lawsuit enforcing a restriction, and some bylaws require the defendant homeowner to reimburse the association’s legal fees.
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.
Dust, Noise, Smells, But Not a Nuisance
Homeowners have a legitimate right to the Quiet Enjoyment of their property. Nevertheless, when that quiet enjoyment is disturbed by the activities of another property owner, it may be difficult to have those activities declared a private or public Nuisance.
In Karpiak v. Russo, 450 Pa. Super. 471, 676 A.2d 270 (1996), the Pennsylvania Superior Court ruled that a landscaping supply business that produced dust, loud noises, and unpleasant smells in an area that contained homes as well as businesses was not a private nuisance. The decision illustrates the need for those complaining of a nuisance to prove significant harm.
The landscaping supply company was established in 1984, when the Zoning law classified the location as business property. The area was rezoned in 1993, making the area residential. The company sold topsoil, shredded bark, compost, sand, and river rock from spring to late fall. Nearby homeowners complained of dust blowing into their yard and home; noise from trucks, backhoes, and payloaders; and smells from the compost.
The court rejected these claims of nuisance. It first noted that the company had lawfully complied with the zoning ordinance at the time it started the business. There were other businesses on the same street. Just because the neighborhood had been rezoned did not prohibit the continued existence of the landscape business.
More significantly, the court found that none of the complaining parties had suffered any significant harm. Most of the parties worked weekdays and were absent from the neighborhood when the landscape business was in operation. Aside from one person who had to clean his car and outside furniture, no one claimed any damages from the operation of the business. The court concluded that occasional personal discomfort or annoyance did not establish a serious level of harm that could be defined as a private nuisance. People who reside in neighborhoods with businesses close by will sometimes find their comfort subordinated to the commercial needs of business.
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 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.
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.
The West Wrestles with Washington
Beginning in the 1990s, a number of controversial clashes over federal authority have concerned the use of federally owned land. One such struggle, between the Clinton administration and western states, for example, covered a variety of issues: fees for ranchers; water, timber, and mining rights; and environmental restrictions on land use. Each issue was part of a more fundamental question: Who has authority to regulate use of the land—federal or local officials? Challenging the administration in Congress and fighting the federal government in court, a broad coalition of western governors, lawmakers, and business interests sought autonomy and relief from outside regulation. More than 60 western counties asserted legal authority over federal lands within their borders. As political tensions heightened, acts of violence aimed at federal officials raised the stakes in what the media called the county supremacy movement, and the U.S. Justice Department brought suit to stop it.
The western conflict had been simmering for two decades. A rise of environmental concerns in the 1970s had created a strong lobby that pressed for stricter controls on land use, a demand especially relevant to the millions of acres of federal land in the U.S. West. This development affected western ranchers, who lease federally owned land for their livestock. Early on, environmentalists spurred the passage of the 1971 Wild Horse and Burro Act, 16 U.S.C.A. § 1332 et seq. This law protected wild horses, but at the same time caused deterioration to land on which livestock graze. Private landowners also chafed under the Endangered Species Act (ESA) (16 U.S.C.A. § 1538(a)(1)(B)). Passed in 1973 to preserve specific vanishing species, the ESA restricted their right to develop their land.
Western quarrels with federal management of the land grew into the socalled Sagebrush Rebellion of the late 1970s and early 1980s. This was an attempt by several states to wrest control over land management from the federal government and turn it over to state authorities. The rebels argued that local control would mean less bureaucracy and more responsiveness than could be offered by the federal Bureau of Land Management (BLM), which manages 177 million acres in the western states. Some went further. For instance, in 1979, Nevada declared legislation that the state owned and had control and jurisdiction over all “public lands” within it (Nev. Rev. Stat. §§ 321.596–.599). This claim was largely symbolic in that it excluded federal land such as parks, forests, and wildlife refuges.
Although the rebellion gained slight support from the Reagan administration—whose anti-regulatory stance allowed grazing on nearly all public lands—it failed to lead to the transfer of power that its proponents wanted. Discontent among western political and business leaders remained.
The conflict came to a new crisis in the early 1990s. The election of President bill clinton in 1992, and his choice of the environmentally minded Bruce Babbitt as interior secretary, quickly heightened among environmentalists expectations for tougher restrictions. The administration promised broad rangeland reforms. It favored raising the grazing fees charged to cattle ranchers from $1.86 to $4.28 per animal unit month (AUM) (the amount of forage needed to feed one animal for a month) in order to bring the fees closer to the average $8.00 to $15.00 per AUM charged on private land. The proposed reforms also asserted that the federal government would hold title to any water sources developed on federal lands. They imposed more stringent ecological standards and called for ranchers who abused land to be punished by measures that ranged from reductions in the length of grazing permit terms to outright disqualification from the permit program.
The proposals drew praise from environmentalists. They hailed the administration for trying to bring needed protection to western ecological systems and for trying to cut what they argue is a federal subsidy to ranchers. The National Wildlife Federation called the reforms long overdue. To more radical groups like Rest the West, whose slogan was Cattle-Free by ’93, the Clinton administration’s efforts were a step toward eliminating ranching on public lands altogether.
But among western business and political interests, the proposals caused an uproar. Opponents called the increase in grazing fees unfair, arguing that it failed to take into account that the more expensive private lands offer ranchers superior grazing as well as improvements such as fences and water sources. Industry representatives claimed the fee hike would crush already struggling ranchers. The American Sheep Industry Association, for example, estimated that a quarter of its members would be driven out of business, at a loss of $1.68 billion in revenues. In public statements and at meetings throughout the West, ranchers and politicians decried the effort as a giveaway to environmentalists by out-of-touch federal bureaucrats.
The administration tried several times to make the reforms stick. President Clinton originally wanted to make higher grazing fees part of his first budget, but western lawmakers protested. The administration compromised on water issues and the size of the grazing fee, but to no avail. In October 1993, an attempt to pass the reform package was blocked by several filibusters in the U.S. Senate. Although opponents declared victory, Babbitt plowed ahead with a plan to bring the reforms into effect through changes in BLM regulations. Known as Rangeland Reform ’94, the revised regulations were put into place in February 1995 after the interior secretary conducted numerous public meetings with ranchers and environmentalists (BLM Grazing Administration Rules and Regulations [60 Fed. Reg. 9894]). The sharp fee hike was shelved in favor of a customary twelve-cent annual increase. Another significant compromise was the establishment of grassroots resource advisory councils, made up of ranchers, environmentalists, and other citizens who would advise the BLM on policy decisions.
The issuance of new regulations, even sweetened by compromise, hardly quelled western opposition. While fighting the rangeland reform battle, western lawmakers had also grappled with the administration over the issue of mining rights. The dispute centered on an 1872 law that allowed mining companies to snap up federal land at $2.50 to $5.00 an acre (the Mining Act of 1872 [30 U.S.C.A. § 22]). The administration said foreign companies were exploiting the law, originally intended to help small prospectors. Nevertheless, western states refused to budge on demands that a higher royalty fee be imposed to compensate the federal government for the incredibly low price for land. Any increase, they said, would cost their states revenue from the mining industry.
Meanwhile, a more radical element in the western conflict had appeared. Between 1991 and 1995, nearly 60 western counties asserted in ordinances that they—not the federal government—had control over federal lands. As this trend grew and became known as the county supremacy movement, the National Law Journal noted that it took two legal forms. One was typified by Boundary County, Idaho, whose 1991 ordinance cited local custom and culture as reasons for requiring all federal and state agencies to comply with its land-use policy plan. The second originated in Nye County, Nevada, where two resolutions in 1993 declared that the county owned all public lands and public roads.
Nye County became a focal point of the new movement. Many of its constituents openly resented federal control of nearly 87 percent of the county’s land. In 1994, it became the scene of concern after Dick Carver, a Nevada rancher and Nye County commissioner, used a bulldozer to plow open a forest road over the objections of an armed U.S. Forest Service agent. The incident made Carver a sort of folk hero, and he began delivering lectures in more than 20 states. Hostilities erupted in Nye County, and bombs in New Mexico and Nevada and gunshots in California were aimed at federal employees.
Determined to stop the rebellion and reassert federal authority over federal lands, the U.S. Department of Justice joined one lawsuit and filed another. In March 1996, it won both. In the first, Boundary Backpackers v. Boundary County, 913 P.2d 1141, the Idaho Supreme Court invalidated Boundary County’s ordinance as unconstitutional. In the second, the U.S. district court in Nevada struck down Nye County’s ordinance (United States v. Nye County, 920 F. Supp. 1108).
In the new century, one of the biggest land-use battles in the West has been over the proposed use of Yucca Mountain in Nevada as the storage site for the nation’s nuclear waste. The plan is to build a nuclear waste repository facility 1,000 feet below the mountain. While the Congress and the president signed off on the decision to use the mountain in 2002, the state of Nevada has filed a lawsuit to stop it. Landowners and Native American tribes have joined this legal fight, and it was expected to be years before the courts made a final determination on this issue. Despite the federal government’s victories on some fronts, the West’s desire for greater independence and its distrust of federal authority indicate the likelihood of further struggles.
Boyce, James K., et al. 2003. Natural Assets: Democratizing Ownership of Nature. Washington, D.C.: Island.
Gorman, Tom. 2002. “Bush Makes Yucca Mountain Project Official.” Los Angeles Times (July 24).
Merill, Karen R. 2002. Public Lands and Political Meaning: Ranchers, the Government, and the Property Between Them. Berkeley: Univ. of California Press.
Scheberle, Denise. 2004. Federalism and Environmental Policy: Trust and the Politics of Implementation. Washington, D.C.: Georgetown Univ. Press.