Control of land use Flashcards
There are three basic means of controlling and regulating land use, including options through both the public and private sectors:
- Public land use controlsZoning
Subdivision regulations
Codes that regulate building construction, safety, and public health; and
Environmental protection legislation - Private land use controls
- Public ownership of land through the federal, state, and local governments.
Police power
with regard to real estate, is defined as the constitutional authority of a state government, which is then delegated to local governments, to make rules regarding real property in order to promote the public order, health, welfare, safety, morals, and prosperity of society.
Established by the Tenth Amendment to the U.S. Constitution (see above), “police power” forms the constitutional basis for adopting and enforcing regulations concerning land use. Examples of police power include zoning, eminent domain, building and safety codes, and rent controls.
Uniform in Operation
Such laws must be uniform in operation, nondiscriminatory, and cannot be advantageous to any one particular person or group. In essence, it is an authority derived from individual state constitutions, which also vest the power in counties, cities, and municipalities to adopt and enforce appropriate local ordinances and regulations that are not in conflict with state laws.
Bulk Zoning
Bulk zoning regulations are regulations that restrict the density in a targeted area through a variety of building-specific measures, including such concepts as floor-area-ratios (FAR), setback requirements, and open space requirements. These provisions are different from other zoning regulations in that they do not restrict the type of usage in a permitted given area, such as residential, industrial, or commercial, they just add to what is already there to reduce density.
Aesthetic Zoning
Aesthetic zoning is a type of zoning designed to keep a consistent ‘look’ within a certain zoning area. It might be accomplished through architecture, or it might include paint colors, materials used in the structure, or the landscaping surrounding the structure.
Incentive Zoning
Incentive zoning is a type of zoning that allows for increased density, with ‘common good’ provisions that also help alleviate the density, such as first floor storefronts on new high rise buildings.
Directive Zoning
Directive zoning is the concept of using zoning as a tool that encourages planning and utilizing land for the highest and best use.
Spot Zoning
Sometimes in planning, a small change needs to be effectuated for a specific purpose - this can often be accomplished with spot zoning. Essentially, the entity, homeowner, or commercial landowner applies to the local jurisdiction or municipality that holds the zoning regulation with a proposal for an amendment to the zoning that would affect only their concern.
Conditional Use Permit
A conditional use permit, also called special use permit or specific use permit, is what a property owner would apply for from the governing body if the activity the homeowner proposes is unpermitted but possibly close to the allowed activities for a particular zoning area.
Nonconforming Use
Nonconforming use comes into play after a major rezoning, when a formerly permitted use no longer exists. Under the rezoning, that building, property, or use becomes nonconforming. If the municipality chooses to allow the nonconforming use to continue, it can be ‘grandfathered’ in. This generally means that the current owner can continue in that nonconforming use, but only until the ‘grandfathered’ owner no longer owns and/or controls the property.
Variance
A variance is a specific exception to a particular municipality’s zoning ordinance. It says that an exception will be allowed for one parcel. An example is when a homeowner wishes to add on to their existing home, but a portion of the addition will cut into the setback. A variance can allow the intrusion into the setback for that homeowner, but not create an exception for all homeowners in the same area.
Comprehensive Plans
The characteristics of a comprehensive plan include the following:
A plan for the physical development of a community
Should be future-oriented
Should be geographically and functionally comprehensive
Should include land use, public facilities, and circulation elements
Tax Increment Reinvestment Zones (TIRZs)
A tax increment reinvestment zone (TIRZ) is a unique political subdivision of a municipality in Texas. These TIRZs were created to implement tax increment financing. They may be initiated by the city or county or by petition of owners whose total holdings in the zone consist of a majority of the appraised property value.
Covenants, Conditions, and Restrictions (CC&Rs)
Covenants, conditions, and restrictions (CC&Rs) are formally recorded private (as opposed to public or municipal) limitations on the use, appearance, and maintenance of real property. Among other things, these typically restrict what homeowners — and their guests and tenants — can do on, or to, their property. The regulations may go by other names such as bylaws, the master deed, or house rules, but their goals are similar.
“Run with the Land”
CC&Rs can expire when property is transferred to a new owner, or the CC&Rs may “run with the land” and affect subsequent owners. For CC&Rs to persist past a transfer of title, the following conditions must be fulfilled:
The CC&Rs must be in writing; The original parties must have intended them to “run with the land”; The CC&Rs must have a connection to the landowner status of the parties; There must be "horizontal privity" [Note: privity means a legal relationship between two or more parties; vertical privity would characterize the relationship between a seller and a buyer (one is ceding their interest to the other), while horizontal privity means that the shared interests are maintained even when property is transferred]; and
Any party to whom the land is transferred must be given reasonable notice that the CC&Rs exist.
