Land Use | Environmental Law Institute

<h4>Under review</h4>
Regulating how land is used and what activities may be conducted on land have a significant impact on human health and the environment. <a href="http://en.wikipedia.org/wiki/Land-use_planning" target="_blank">Land use planning</a> can reduce urban sprawl, preserve green spaces, and limit soil erosion and contaminated surface water runoff. At the same time, placing restrictions on people’s use of their property is <a href="#" title="See Pacific Legal Foundation at pacificlegal.org/page.aspx?pid=269 and Federalist Society at fed-soc.org/publications/pgdetail/environmental-law-property-rights.">highly controversial</a>. As a result, <a href="http://www.eli.org/land-biodiversity/sustainable-use-land">land use law</a> is complex and contentious.
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For a primer on land use law, watch or download materials from the ELI Summer School program <a href="http://www.eli.org/events/summer-school-land-use-and-law">Land Use and the Law</a>.
For example, in Oregon towns and metropolitan areas must implement <a href="http://www.oregonmetro.gov/index.cfm/go/by.web/id=33630" target="_blank">urban growth boundaries</a> limiting sprawl and preserving rural lands. Some embrace land use planning as a central element in “<a href="http://www.smartgrowthamerica.org/what-is-smart-growth" target="_blank">smart growth</a>,” which envisions efficient land use and building to minimize environmental impact and maximize social and economic benefit. For one approach to smart growth, see Chad Emerson, <a href="http://www.eli.org/eli-press-books/smartcode-solution-to-sprawl%252C-th… SmartCode Solution to Sprawl</a>. Jim McElfish explains the problems caused by urban sprawl in <a href="http://www.eli.org/research-report/ten-things-wrong-sprawl">The Ten Things Wrong with Sprawl</a>.
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Land use is largely regulated by states and municipalities through <a href="#zoning">zoning</a> with very little role for the federal government, with the significant exceptions, perhaps, of managing <a href="http://www.eli.org/keywords/natural-resources">federal lands</a> and the impacts of the <a href="http://www.eli.org/keywords/wildlife">Endangered Species Act</a>. Courts are involved in land use, in part, through deciding cases on the <a href="#regulatory-takings">constitutional</a> reach of state and local land use regulation and through <a href="#private-nuisance-law">private nuisance</a> lawsuits.
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One of the seminal books on the intersection of land use and environmental issues is Haar & Wolf, <a href="http://www.eli.org/eli-press-books/land-use-planning-and-the-environmen… Use Planning and the Environment</a>. For a discussion of how land use planning can dramatically shape landscapes large and small, see James McElfish & Rebecca Kihslinger, <a href="http://www.eli.org/eli-press-books/nature-friendly-land-use-practices-a… Friendly Land Use Practices at Multiple Scales</a>. For a discussion of encouraging smart growth through land use planning, see John Nolon, <a href="http://www.eli.org/eli-press-books/well-grounded%253A-using-local-land-… Grounded: Using Local Land Use Authority to Achieve Smart Growth</a>. For a discussion of how land use, among other tools, can protect biodiversity, see Robert McKinstry, <a href="http://www.eli.org/eli-press-books/biodiversity-conservation-handbook%2… Conservation Handbook</a>.
To see how ELI approaches land use, visit our <a href="http://www.eli.org/land-biodiversity/sustainable-use-land">Sustainable Use of Land</a> program page.
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<h3><a name="zoning"></a>Public Tools to Govern Land Use: Zoning</h3>
In the United States, local governments primarily regulate land use. Most state legislatures have allocated land use authority to municipalities through <a href="http://en.wikipedia.org/wiki/Home_rule" target="_blank">home rule</a> provisions or state <a href="http://www.law.cornell.edu/wex/zoning" target="_blank">zoning</a> and enabling acts.
In the early twentieth century, local governments began systematically controlling local land use in the face of unregulated urbanization contaminating drinking water, blocking sunlight, and congesting urban centers. New York City adopted the nation’s first comprehensive ordinance in <a href="http://www.nyc.gov/html/dcp/html/zone/zonehis.shtml" target="_blank">1916</a>, following the recommendation from its newly established planning commission. Local governments elsewhere caught on and by the mid-1920s, roughly <a href="#" title="Jay Wickersham, Legal Framework: The Laws of Sprawl and the Laws of Smart Growth, in URBAN SPRAWL: A COMPREHENSIVE REFERENCE GUIDE 26, 27 (David C. Soule ed., 2006).">400</a> local governments had adopted comprehensive zoning laws. However, land use controls were controversial because they limited the freedom of private landowners to utilize their land. The Supreme Court put an end to this debate in its landmark decision <a href="http://supreme.justia.com/us/272/365/case.html" target="_blank">Village of Euclid v. Ambler Realty Co.</a> by holding land use controls can be constitutional.
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Sara Bronin provides an interesting exploration of the need for state involvement with land use regulation in <a href="http://elr.info/news-analysis/40/10733/quiet-revolution-revived-sustain… Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States</a>.
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<h5>Land Use Planning and Commissions</h5>
Ideally, local governments regulate land use decisions based upon a <a href="http://en.wikipedia.org/wiki/Comprehensive_planning" target="_blank">comprehensive land use plan</a>--a vision for future land use. Professional planners design comprehensive plans and are heavily influenced by community participants. While designing the comprehensive plan, professional planners take into consideration numerous factors, including existing land uses, land use compatibility, environmental opportunities and constraints, agricultural use, neighborhoods, historic areas, downtown development, mixed uses, etc. Based on the comprehensive plan, the planning commission establishes a land use plan that maps zones to specify particular land uses permitted for specific areas.
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For an example of a comprehensive land use plan, see the National Capital Region’s plan <a href="http://www.ncpc.gov/ncpc/Main%28T2%29/Planning%28Tr2%29/ComprehensivePl…; target="_blank">here</a>. For an overview of comprehensive plans, see <a href="http://landuse.osu.edu/PDF%20files/Comland.pdf" target="_blank">here</a>. For an example of a planning commission and an explanation of its functions, see the <a href="http://www.theplanningcommission.org/aboutus" target="_blank">Hillsborough County-City Planning Commission</a>.
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In reality, planning commissions may undermine land use controls. Planning commissions often must allow the land use controls to be flexible to meet changing markets and demand for particular land uses. A developer seeking to build in particular zone must apply for a permit. If a developer seeks to construct a building for a use that is outside the intended zoning ordinance, the developer can seek a variance, special permit, or an amendment to the land use plan. Hence, local government may deviate from land use plans and the environmental controls and protections they may provide.
<h5>Role of Courts</h5>
In addition, a state judicial branch may limit local government’s ability to manage growth under the state constitution’s <a href="#" title="For a more detailed discussion of what substantive due process means, see www.law.cornell.edu/wex/due_process.">substantive due process clause</a>. Both federal and state substantive due process clauses, within each constitution, protect persons from overreaching state action, particularly from infringing upon protected rights including life, liberty, property, privacy, and family. Federal courts do not view zoning decisions as related to a protected right. Consequently, federal courts are generally more <a href="#" title="Brian W. Blaesser, Substantive Due Process Protection at the Outer Margins of Municipal Behavior, 3 WASH. U.J.L. & POL’Y 583, 585 (2000), available at law.wustl.edu/journal/3/pg583to601.pdf.">deferential</a> to government bodies and refrain from reviewing land use cases.
Some state judicial branches, however, have taken a more active role in zoning decisions. For example, an Illinois court in <a href="http://www.leagle.com/xmlResult.aspx?xmldoc=19941369627NE2d742_11277.xm…; target="_blank">Twigg v. County of Will</a> held a zoning ordinance unconstitutional. In Twigg, the property owner wanted to house his extended family in multiple homes on his twenty-five acres of land; however, an agricultural zoning ordinance allowed only one house to be built on every ten acres. The Illinois court struck down the zoning ordinance as economically inefficient and because it created a hardship for the landowner without a distinct rationale. Other courts, including those in <a href="#" title="See Cormier v. County of San Luis Obispo, 161 Cal. App. 3d 850 (Cal. App.2d Dist. 1984).">California</a>, give substantial deference to local government zoning decisions.
<h3><a name="regulatory-takings"></a>Regulatory Battlefield: Regulatory Takings</h3>
In addition to local politics and state judicial concerns, several other challenges may obstruct a local government’s ability to implement its goals, including the Fifth Amendment’s <a href="#" title="For a general overview of takings clause jurisprudence, see law2.umkc.edu/faculty/projects/ftrials/conlaw/takings.htm.">takings clause</a>. The <a href="#" title="“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.“ From caselaw.lp.findlaw.com/data/constitution/amendment05/.">Fifth Amendment</a> of the U.S. Constitution prohibits the government from taking property without giving the owner fair compensation. Case law distinguishes between two types of takings law: (1) a physical taking in which the government literally takes or permanently occupies property for public use; and (2) a regulatory taking in which the government regulates the property to such an extent that it constitutes a taking.
The regulatory takings analysis in particular has troubled environmental law. What is found to constitute a regulatory taking depends on the particular facts and how they relate to the two tests developed by the United States Supreme Court: (1) <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0438_0104_ZO.ht…; target="_blank">Penn Central</a> ad hoc balancing test and (2) the <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0505_1003_ZO.ht…; target="_blank">Lucas</a> categorical taking test. The <a href="#" title="For an overview and interpretation of the Penn Central case, see John Echeverria, “Making Sense of Penn Central.”">Penn Central ad hoc balancing test</a> weighs three factors: the character of government action, the extent of economic impact, and the interference with investment-backed expectations. Case outcomes based on a Penn Central analysis, however as with any balancing test, are inherently unpredictable. In contrast, the <a href="#" title="For a discussion of the Lucas test, see J. David Breemer, “Of Nominal Value: The Impact of Tahoe-Sierra on Lucas and the Fundamental Right to Use Private Property.”">Lucas categorical taking test</a> is predictable. It states that if a regulation causes total economic loss for an entire property, the regulation constitutes a taking. The courts, however, predominantly follow the Penn Centralad hoc balancing test over the predictable categorical rule.
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For a discussion of takings law in general, listen to and download materials from the ELI seminar <a href="http://www.eli.org/events/drawing-line-sand-florida-beach-case-asks-us-… a Line in the Sand? Florida Beach Case Asks U.S. Supreme Court to Recognize Novel Category of Property Takings</a>.
For in-depth analysis of the politically-charged regulatory takings area, see Ken Miller, <a href="http://elr.info/news-analysis/39/10457/penn-central-tomorrow-making-reg… Central for Tomorrow: Making Regulatory Takings Predictable</a>, and Alex Potapov, <a href="http://elr.info/news-analysis/39/10516/making-regulatory-takings-reform… Regulatory Takings Reform Work: The Lessons of Oregon’s Measure 37</a>.
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The takings clause directly impacts a local government’s ability to include environmental initiatives into its land use planning. Local governments often do not have sufficient funding to implement environmental and sustainable development on private lands. Consequently, many local governments impose environmental conditions on permit applicants. For example, municipalities may require a particular amount of space be left between a proposed development and a nearby watershed. Courts may find this to be a taking. In <a href="http://www.law.cornell.edu/supct/html/93-518.ZO.html" target="_blank">Dolan v. City of Tigard</a>, the Court struck down the City of Tigard’s attempt to require Dolan to dedicate a portion of his land to a public greenway. This may impact local governments’ ability to allocate water, plan for growth, and respond to environmental emergencies.
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For a thorough discussion of Dolan and its impacts, see Philip Warburg and James McElfish, <a href="http://elr.info/news-analysis/24/10520/property-rights-and-responsibili… Rights and Responsibilities: Nuisance, Land Use Regulation, and Sustainable Use</a>.
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<h3><a name="environmental-justice-inclusionary-zoning"></a>Environmental Justice and Inclusionary Zoning</h3>
Another challenge for local governments is the siting of locally unwanted land uses (LULUs), such as landfills, power plants, factories, highways, and prisons. As society depends upon each land use, LULUs must be sited somewhere. Many communities, however, generally oppose the siting of the LULUs in their neighborhood, a phenomenon often referred to as NIMBYism, “Not in My Backyard.” LULUs are often located in communities with low-income and minority populations.
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ELI provides resources for environmental justice communities through its <a href="http://www.eli.org/environmental-governance/community-resource-center">… Resources Center</a>. Listen to and download materials from ELI seminars on environmental justice issues: <a href="http://www.eli.org/events/second-look-epas-new-ej-priorities">A Second Look at EPA’s New EJ Priorities</a> and <a href="http://www.eli.org/events/ej-epa-impacts-new-priorities">EJ at the EPA: Impact of the New Priorities</a>.
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For a discussion of LULUs, see this <a href="http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PREL100…; target="_blank">article</a> on a municipal perspective on dealing with LULUs.
<a href="http://www.epa.gov/environmentaljustice/" target="_blank">Environmental justice</a> advocates have envisioned land use controls as a mechanism to fairly and equitably distribute LULUs. They seek to achieve the equitable treatment and democratic participation of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws. However, advocates have limited avenues, let alone effective avenues, to advance environmental justice within the legal system. Efforts to use the <a href="#" title="No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. caselaw.lp.findlaw.com/data/constitution/amendment05/.">Due Process Clause</a>, the <a href="#" title="Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. caselaw.lp.findlaw.com/data/constitution/amendment14/.">Equal Protection Clause</a>, and <a href="#" title="See generally www.justice.gov/crt/about/cor/coord/titlevi.php.">Title VI of the 1964 Civil Rights Act</a> have borne little fruit. Agency hearings are similarly inadequate. While over 150 cases have been filed with the EPA <a href="http://www.epa.gov/ocr/" target="_blank">Office of the Civil Rights</a>, most have been dismissed and none have been decided in favor of the complainant.
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The law and policy around environmental justice is expertly discussed in Barry Hill, <a href="http://www.eli.org/eli-press-books/environmental-justice:-legal-theory-… Justice: Legal Theory and Practice, 3d ed</a>. The intersection of land use policy and environment justice is explored in Tony Arnold, <a href="http://elr.info/news-analysis/30/10395/land-use-regulation-and-environm… Use Regulation and Environmental Justice</a>.
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Some state legislatures, such as Georgia, have promulgated <a href="http://www.lexisnexis.com/hottopics/gacode/" target="_blank">“fair share” legislation</a> that requires locally unwanted land uses to be spread out, limiting the number of LULUs within a specified radius. Other states impose greater procedural requirements for an environmental impact statement, requiring the developer to disclose the specific location of the LULU, who lives there, and to assess the potential effects on the quality of life of those who will live there.  New York City currently implements a <a href="http://www.nyc.gov/html/dcp/html/pub/fair.shtml" target="_blank">hybrid fair share/impact statement approach</a> requiring the mayor to publish a list of new proposed LULUs and specify where they are to be located. Finally, the state may identify certain communities for which any or any further LULU siting would trigger special scrutiny by the planning commission.
<h3><a name="private-nuisance-law"></a>Private Controls: Private Nuisance Law</h3>
Private persons directly participate in advancing sustainable land use practices through several mechanisms, including <a href="#" title="A promise requiring or restricting land use by original landowners and their successors. A court may demand a breaching party to stop the activities causing the breach.">equitable servitudes</a>, <a href="#" title="A promise requiring or restricting land use by a landowner or by both the original landowners and their successors. A court may grant monetary relief for a breach of a covenant.">covenants</a>, and most importantly, <a href="#" title="A private nuisance is a civil wrong that affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public. From nuisances.uslegal.com/types-of-nuisances/private-nuisances/.">private nuisance law</a>. Private nuisance law is essentially when a property owner constrains his or her neighbor’s freedom to use their land in a particular manner. For example, a property owner may decide to construct a laboratory in the backyard of his home. If the property owner permits lab waste to enter the local watershed, however, his neighbors may bring an action against him to either prohibit the property owner from allowing waste to enter the watershed or for damages. While private nuisance law provides an environmental protection mechanism, its effectiveness is limited for two reasons: (1) courts do not uniformly apply nuisance law and (2) it is focused on pollution control rather than preventing pollution and advancing environmental restoration.

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