Chapter 8 - Land Use Planning and Control Flashcards
In most jurisdictions, the master plan is managed by
the planning commission
To be valid, a local zoning ordinance must
reasonably promote community health, safety and welfare
The approval process for the development of multiple properties in an area includes submission of
a plat of the subdivision
Define master plan
a fusion of land use laws and local land use objectives
A non-profit organization wants to erect a much-needed daycare center in a residential zone. Given other favorable circumstances, the local authorities grant permission by allowing
a special acception
What is the fundamental purpose of a building permit?
to ensure that improvements comply with codes
While the Constitution guarantees the right of individual ownership of real estate, it does not
not guarantee the uncontrolled sale, use, and development of real estate.
Without a central authority to exert control, land use
tends to be chaotic
Over time, public and private control of land use has come to focus on certain core purposes. These are:
preservation of property values
promotion of the highest and best use of property
balance between individual property rights and the public good, i.e., its health, safety and welfare
control of growth to remain within infrastructure capabilities
incorporation of community consensus into regulatory and planning activities
The optimum management of real property usage must take into account
both the interests of the individual and the interests of the surrounding community.
A community achieves its land usage goals through a three-phase process, as the exhibit illustrates:
development of a master plan for the jurisdiction
administration of the plan by a municipal, county, or regional planning commission
implementation of the plan through public control of zoning, building codes, permits, and other measures
A planning commission manages
the master plan and enforces it by exercising its power to establish zones, control building permits, and create building codes.
Public land use planning incorporates
long-term usage strategies and growth policies in a land use plan, or master plan
The primary objectives of a master plan are
generally to control and accommodate social and economic growth
A master plan sets specific guidelines
on how much growth the jurisdiction will allow.
To formulate a growth strategy, a plan initially forecasts
growth trends, then estimates how well the municipality can keep pace with the growth forecast
A growth plan considers:
nature, location and extent of permitted uses
availability of sanitation facilities
adequacy of drainage, waste collection, and potable water systems
adequacy of utilities companies
adequacy and patterns of thoroughfares
housing availability
conservation of natural resources
adequacy of recreational facilities
ability and willingness of the community to absorb new taxes, bond issues, and assessments
In addition to the quantity of growth, a master plan also defines
what type of growth will occur, and where
Growth patterns major considerations are:
the type of enterprises and developments to allow
residential density and commercial intensity
effects of industrial and commercial land uses on residential and public sectors, i.e., where to allow such uses
effect of new developments on traffic patterns and thoroughfares
effects on the environment and environmental quality (air, water, soil, noise, visual aspects)
effect on natural resources that support the community
code specifications for specific construction projects
As the master plan sets forth guidelines for how much
growth will be allowed, it must also make plans for accommodating expanding or contracting demand for services and infrastructure
The master plan must identify:
facilities requirements for local government
new construction requirements for streets, schools, and social services facilities such as libraries, civic centers, etc.
new construction required to provide power, water and sewer services
In response to land use objectives, community attitudes, and conclusions drawn from research, the planning personnel formulate their plan. In the course of planning, they analyze
population and demographic trends
economic trends
existing land use
existing support facilities
traffic patterns
Public land use management takes place within county and municipal
planning departments
Planning departments are responsible for:
long-term implementation of the master plan
creating rules and restrictions that support plans and policies
enforcing and administering land use regulation on an everyday basis
In most jurisdictions, a planning
commission or board comprised of officials appointed by the government’s legislative entity handles the planning function.
The planning commission oversees the
operations of the department’s professional planning staff and support personnel. In addition, the commission makes recommendations to elected officials concerning land use policy and policy administration.
The planning commission is responsible for
approving site plans and subdivision plans
approving building permits
ruling on zoning issues
At the state level, the legislature enacts laws that control and restrict land use, particularly from the
environmental perspective
At the local level, county and city governments control land use through
the authority known as police power
The most common expressions of police power are
county and municipal zoning
examples of public land use control are:
subdivision regulations
building codes
eminent domain
environmental restrictions
development requirements
Governments also have the right to own
real property for public use and welfare.
Where necessary, governments may force property owners to
sell their property through the power of eminent domain.
_____ is the primary tool by which cities and counties regulate land use and implement their respective master plans
zoning
The Constitution grants the states the legal authority to regulate, and the states delegate
the authority to counties and municipalities through legislation called enabling acts
The vehicle for zoning a city or county is
the zoning ordinance, a regulation enacted by the local government
Zoning ordinances implement the master plan by
regulating density, land use intensity, aesthetics, and highest and best use
Zoning ordinances typically address:
the nature of land use– office, commercial, residential, etc.
size and configuration of a building site, including setbacks, sidewalk requirements, parking requirements, and access
site development procedures
construction and design methods and materials, including height restrictions, building-to-site area ratios, and architectural styles
use of space within the building
signage
In order to be valid zoning ordinances must be
clear in import, apply to all parties equally, and promote health, safety, and welfare of the community in a reasonable manner.
Local governments enforce zoning ordinances by issuing
building permits to those who want to improve, repair, or refurbish a property. To receive a permit, the project must comply with all relevant ordinances and codes.
One of the primary applications of zoning power is
the separation of residential properties from commercial and industrial uses. Proper design of land use in this manner preserves the aesthetics and value of neighborhoods and promotes the success of commercial enterprises through intelligently located zones
Six common types of zone are
residential
commercial
industrial
agricultural
public
planned unit development (PUD)
Residential zoning restricts
land use to private, non-commercial dwellings.
Residential zoning regulates:
density, by limiting the number and size of dwelling units and lots in an area
values and aesthetics, by limiting the type of residences allowed. Some areas adopt buffer zones to separate residential areas from commercial and industrial zones.
Commercial zoning regulates
the location of office and retail land usage. Some commercial zones allow combinations of office and retail uses on a single site
Industrial. Industrial zoning regulates
intensity of usage
type of industrial activity
environmental consequences
Agricultural zoning restricts
land use to farming, ranching, and other agricultural enterprises.
Public zoning restricts
land use to public services and recreation. Parks, post offices, government buildings, schools, and libraries are examples of uses allowed in a public zone.
planned unit development zoning restricts
use to development of whole tracts that are designed to use space efficiently andmaximize open space. A PUD zone may be for residential, commercial, or industrial uses, or combinations thereof
A county or local board, usually called the zoning board of adjustment or zoning appeals board, administers
zoning ordinances
A zoning board generally deals with such issues and appeals as:
nonconforming use
variance
special exception or conditional use permit
zoning amendment
A nonconforming use is one that
clearly differs from current zoning. Usually, nonconforming uses result when a zoning change leaves existing properties in violation of the new ordinance
A board usually treats legal nonconforming use by allowing it to either:
indefinitely
until the structures are torn down
only while the same use continues, or
until the property is sold
illegal nonconforming use is one that
conflicts with ordinances that were in place before the use commenced
A zoning variance allows
a use that differs from the applicable ordinance for a variety of justifiable reasons, including that:
compliance will cause unreasonable hardship
the use will not change the essential character of the area
the use does not conflict with the general intent of the ordinance
A special exception grant authorizes
a use that is not consistent with the zoning ordinance in a literal sense, yet is clearly beneficial or essential to the public welfare and does not materially impair other uses in the zone.
A current or potential property owner may petition the zoning board for an
amendment - outright change in the zoning of a particular property.
Subdivision plat approval. The developer submits a plat of subdivision containing
surveyed plat maps and comprehensive building specifications
Subdivision requirements typically regulate
location, grading, alignment, surfacing, street width, highways
sewers and water mains
lot and block dimensions
building and setback lines
public use dedications
utility easements
ground percolation
environmental impact report
zoned density
Concurrency is a policy
that requires the developer to make accommodations concurrently with the development of the project itself, not afterwards
In addition to local regulation, subdivisions must meet
FHA (Federal Housing Authority) requirements to qualify for FHA financing insurance.
Building codes allow
the county and municipality to protect the public against the hazards of unregulated construction
Building codes typically address
architectural and engineering standards
construction materials standards
building support systems such as life safety, electrical, mechanical, and utility systems
Building inspectors inspect a new development or improvement for code compliance. If the work complies
the municipality or county issues a certificate of occupancy which officially clears the property for occupation and use.
If efforts to regulate privately owned property are inadequate or impractical in a particular situation, or if there is a compelling public need, a county or local government may
acquire property by means of direct purchase.
A government body might acquire land because of the public need for:
thoroughfares and public rights-of-way
recreational facilities
schools
essential public facilities
urban renewal or redevelopment
Eminent domain allows
a government entity to purchase a fee, leasehold, or easement interest in privately owned real property for the public good and for public use, regardless of the owner’s desire to sell or otherwise transfer any interest
Public entities that have the power of eminent domain include
all levels of government
public districts (schools, etc.)
public utilities
public service corporations (power companies, etc.)
public housing and redevelopment agencies
other government agencies
To acquire a property, the public entity must first adopt a formal resolution to acquire the property, variously called a
“resolution of necessity.”
In order to proceed with condemnation, the government agency must
demonstrate that the project is necessary, the property is necessary for the project, and that the location offers the greatest public benefit with the least detriment.
Property owners in the private sector can regulate land use
to some extent through deed restrictions and deed conditions.
A restriction expressed in a conveyance (deed or lease) of a residential, commercial, or industrial property places limits
on the use of the property.
“covenants, conditions, and restrictions” CC&Rs
Typical deed restrictions concern:
required minimum area of a residence
setback
prohibition against construction of sheds or secondary buildings
prohibition against conducting certain commercial activities
The declaration of a subdivision, Planned Unit Development, condominium, and commercial or industrial park contains
private use restrictions
The underlying purpose of deed restrictions is to
preserve the value and quality of the neighborhood, commercial center, or industrial park.
A private usage restriction can be enforced by filing
for a court injunction
A deed condition may
restrict certain uses of a property, much like a deed restriction.
ederal and state legislatures have enacted laws to conserve and protect the environment against
the hazards of growth and development, particularly in terms of air, water, and soil quality
Air quality, both indoor and outdoor, has been a matter of concern since
the 1960’s. With today’s construction methods creating airtight, energy-efficient structures, attention to sources of indoor air pollution is more important than ever.
Among the significant air threats are:
-asbestos
-carbon monoxide
-formaldehyde
-lead
-mold
-radon
asbestos
a powdery mineral once commonly used as a fireproof insulating material around pipes, in floor tiles and linoleum, in siding and roofing, in wallboard, joint compound, and many other applications
carbon monoxide
a colorless, odorless, poisonous gas that may result from faulty heating equipment. Home and commercial detection devices are available.
formaldehyde
a chemical used in building materials and in other items such as fabrics and carpeting. As it ages, formaldehyde gives off a colorless, pungent gas.
lead
a heavy metal once widely used in paints and plumbing materials. It has been banned in paint since 1978 and in new plumbing since 1988.
mold
a fungus that grows in the presence of moisture and oxygen on virtually any kind of organic surface
radon
a colorless, odorless, radioactive gas that occurs naturally in the soil throughout the United States.
Soil, groundwater, and drinking water supplies are vulnerable to pollution from
leaking landfills; improper waste disposal; agricultural runoff; industrial dumping in waterways; highway and rail spills; industrial emissions; internal combustion emissions; and underground tanks leaking fuels and chemicals,
Some of the problems subject to soil and water controls are:
-dioxins
-lead & mercury
-MTBE - Methyl Tertiary Butyl Ether
-PCB - Polychlorinated biphenyl
-Underground storage tanks (USTs)
-Wetlands
dioxins
a family of compounds produced as a byproduct of manufacturing and incinerating materials that contain chlorine
MTBE, Methyl Tertiary Butyl Ether,
a gasoline additive
PCB, Polychlorinated Biphenyl,
a substance formerly widely used as an electrical insulation
Wetlands
considered part of the natural water filtering system as well as special habitats, subject to restrictions on development and use.
Other regulated and controlled environmental conditions include:
Electromagnetic Fields (EMFs) created by powerlines
noise created by airports, air, rail and highway traffic
earthquake and flood hazards that affect hazard insurance, lending practices, and construction requirements for buildings in designated flood and earthquake zones.
Solid Waste Disposal Act
1965 (1976,
1999, 2002)
regulated landfills
Air Quality Act, Clean Air Act
1967 (1970)
regulated air quality standards
National Environmental Policy Act (NEPA)
1969 (1970)
created EPA
Flood Control Act
amended 1969
building in flood zones; flood insurance
Resource Recovery Act
1970
solid waste disposal
Water Quality Improvement Act
1970
dumping in navigable waters; wetlands
Water Pollution Control Act amendment
1972
dumping in navigable waters; wetlands
Marine Protection Research and Sanctuaries Act
1972
offshore waste dumping
Noise control legislation
1972
airport- and transportation-related noise
Coastal Zone Management Act
1972
beaches, marine habitats
Clean Water Act
1972 (1977)
dumping in navigable waters; wetlands
Safe Drinking Water Act
1974
public water supply, lead
Resource Conservation and Recovery Act (RCRA)
1976
hazardous waste, solid waste
Toxic Substances Control Act
1976
industrial chemicals
Lead-based paint ban (US Consumer Product Safety Commission rule)
1978
lead-based paint in residences
PCB ban (EPA rule)
1979
polychlorinated biphenyls
RCRA amendment
1984
underground storage tanks
Comprehensive Environmental Response, Compensation and Liability Act
1980
hazardous waste disposal
UFFI ban
1982
formaldehyde in insulation materials
Superfund Amendment and Reauthorization Act
1986
hazardous waste cleanup costs
Asbestos ban (EPA rule)
1989
asbestos in building materials
Residential Lead-based Paint Hazard Reduction Act (EPA and HUD rule)
1992 (1996)
lead-based paint disclosure and treatment
Flood Insurance Reform Act
1994
flood insurance in flood zones
Brownfields legislation
2002
industrial site cleanup
Licensees are expected to be aware of environmental
issues and to know where to look for professional help. They are not expected to have expert knowledge of environmental law nor of physical conditions in a property
for their own protection, licensees should be careful to:
be aware of potential hazards
disclose known material facts
distribute the HUD booklet (below)
know where to seek professional help.
The Lead-based Paint Act of 1992 requires
a seller or seller’s agent to disclose known lead problems in properties built before 1978
Under CERCLA and the Superfund Amendment of 1986, current landowners as well as previous owners of a property may be held liable
for environmental violations, even if “innocent” of a violation.
Selling a property with an environmental problem does not avoid
liability for the seller, although seller and buyer may agree to share or transfer some liability
If there is a concern, a Phase I audit or Environmental Site Assessment (ESA) should be conducted before proceeding with the transaction. A Phase I audit identifies
prior uses
presence of hazardous materials
The Phase I ESA reviews
environmental documents; conducts a title search for environmental liens and restrictions; and includes a visual inspection of the site and surrounding properties.
There is not sampling or testing in phase I
A Phase II audit (ESA) is conducted if a site
is considered contaminated. This is a more detailed investigation using chemical analysis to uncover hazardous substances and/or petroleum hydrocarbons in samples of soil, groundwater or building materials.
