-A belief that laissez faire system may not yield the best possible spatial outcome 

-There are market failures 

-Inability of markets in certain aspects 

-A desire for an ordered layout of settlements 

-Most uses of land are primarily decided 

-Private decisions aggregate into a spatial structure for cities 

-Is there any overwhelming reason we should have public involvement in shaping the structure of cities?

-Can we publicly provide these without planning 

-We need a wide variety of infrastructure 

+Schools

+Roads 

+Sewer System 

+Libraries 

-These need to be physically situated 

-Planning is a way a community determines its own character 

+Some try to preserve their historical roots

+Some try to play up their natural advantages such as lakes and rivers 

-Land use planning, is therefore a powerful way to shape a community 

-Property is not a "thing," nor an object 

-Property is a set of rights that an individual can apply to an object or to a thing

-When we own a piece of land, don't we own the right to use the land any which way we want?

-Aren't our property rights protected in the constitution?

-Limits to property rights

+Stuff on the yard

*Pink Flamingos 

*Waste 

*Cars on blocks 

*Signs 

*RV/Boats 

+Color/appearance of house

*Materials used 

*Fencing/height 

+Enjoyment 

-Government Authority+Private Rights 

-Sticks/Private Property-Right to use, right to lease, right disposition

-Government/The Axe-Eminent domain (Taking Clause)

-The lack of clearly defined property rights and ownership can lead to an inefficient allocation of resources

+Global Warming 

+Sprawl 

+Over-fishing 

-External effects arise from the costs or benefits imposed involuntary on another party or other parties not directly involved in a given transactions.

-Ex: Coal plant creating smog and ruin our views and environment.

-Externalities make coal plants pay for there pollution.   

-What are "Private" costs? 

+The costs borne by some activity 

+Ex: The private, production cost of steel 

-Social

+Pollution from mill and effects public 

+Not Absolute 

+Change with cultural norms 

+Represent 

-Defines the fundamental law of federal gov.

+Sets forth three branches of gov.

+Outlines their respective jurisdictions 

+Outlines basic rights of citizens 

-Interpreting of the constitutional intent based 

+Custom (Common Law)

+Precedent (Past Decisions)

+Usage (New Interpretation)

-Laid out in Article I-IV

+Congress

*Raising Taxes 

*Borrowing Money 

*Regulating Interstate Commerce 

+President 

*Chief Executive 

*Treaties 

*Commander and Chief 

+Judicial Powers 

*Final Court of Appeals 

-The powers granted to the federal gov. that explicitly enumerated in the constitution 

-This grant of power is the structure of the constitution 

-Those powers not granted to the feds fall to the states

+Limitations to the states 

*Nothing mandated by the state laws can nullify powers granted to the feds by constitution

+Elastic Clause 

*Congress has the power to make all laws 

-Powers delegated by the states to localities 

+Power is delegated 

+Authority and responsibility remain with the states 

-Home Rule vs. Dillion's Rule 

+Dillion's rule- Localities have only those powers allowed by states 

+Home rule- Localities have more autonomy within guidelines

-Fifth Amendment 

+Due Process Clause 

*No Person shall be deprived of life, liberty, or property with out due process law 

+Takings Clause 

*No Shall Property betaken for public use, with just compensation 

-Fourteenth Amendment 

+Due Process 

*Nor shall any state deprive any person of life, liberty or property, without due process law.

+Equal Protection 

*Nor deny to any person within its jurisdiction the equal protection of the laws 

-First Amendment 

+Congress shall make no law respecting an establishment of religion or prohibiting the free exercise; thereof; or abridging the freedom of speech, or of the press

-Counties 

+Within boundaries counties 

+Within town and city boundaries with permission 

-Cities 

+Within corporate limits 

+Within extra-territorial jurisdiction 

-The extension of land-use regulation powers outside the corporate limits of a city or town.

-Size affected by size of city 

+<10,000 = 1 mile limit 

+10,000-25,000 = 2 mile limit

+>25,000 = 3 mile limit

-Determined primarily by growth trajectory 

+Precursor to annexation 

+Laying the groundwork for land-use activity in areas likely to by annexed

-Adopt an ordinance 

+Boundary Description 

+Notification 

+Get agreement from county 

-File Boundary map 

-Amend city/town zoning ordinance 

-Appoint ETJ members 

-Nuisance actions are an extension of the private tort of trespass to land 

-Trespass-Physical invasion

-Nuisance-Non-physical 

-An unreasonable and substantial interference with the use or enjoyment of ones property.

-An activity of condition that is harmful or annoying to others 

-The harm caused by the activity or condition 

-Nuisances are conditions via nuisance ordinances 

-Nuisances are prevented,mitigated and regulated through zoning and development ordinances 

+Here, nuisance ordinances operate concurrent with zoning ordinances 

-History of Nuisance doctrine goes back to the middle ages 

-Eventually, the concept of a "public nuisance" entered law

+Protect the general public from private actors

+Rationale

*Public Health, Safety and Welfare  

-Externality 

+An "extra-territoral" effect of a property owner's action that does not involve a physical extension of that activity

-Beautiful Landscaping

-Artful Facade 

-Additional and renovations 

-Enhanced economic activity 

-Annoyance, inconvenience, discomfort, damage

+Smoke

+Noise 

+Activity 

+Traffic 

+Parking 

-Nuisance Perse-A nuisance wherever it is located 

-Nuisance Per Accidens-A nuisance only in the areas in which its location would detrimentally affect surrounding property

-Preventing a nuisance that may happen

+It may also not happen, so what are you preventing? 

-Courts generally view abatement of this type of nuisance favorably if plaintiff can show with certainty that a nuisance can occur

-Did the nuisance come to you, or did you come to the nuisance.

+Who was "first in time"

+The nuisance was not a nuisance until someone came to it 

+Don't want to fault someone for another's bad decision 

-Something that is visually offensive 

-Injunction 

+Court order halting obnoxious activity 

+Balances equities accruing to all parties 

-Payment 

+Compensation 

*To Plaintiff 

*To Defendant 

-Abatement 

+Required to "clean up" or otherwise remedy the nuisance effects 

-Nuisance laws gradually overtaken by regulation 

+Proactive and reactive 

-Why have nuisance at all?

+Regulation not= prevention

+Regulation might not address all elements/aspects of nuisances 

-Nuisance control falls under the police powers 

-Police Powers 

+Protection of Health, Safety and Welfare 

+Delegated Powers 

-Land use is a delegated power

-Delegated by STATES

-Courts are deferential in reviewing land use regulations 

-Presume regulations fall under police powers 

-Only extreme cases will courts accept a challenge to local regulatory authority 

-A readily identifiable stick in a bundle of property 

-Can be public or private 

-Consistent with segment theory of property, easements assigns rights to parties for limited use or possession of land 

-In Gross 

+An easement owned owned by individual or corporation

+A personal right that cannot be assigned or otherwise transferred

+Terminates on death of individual or dissolution of a corporation  

-By way of necessity 

+No prior existence or use is required 

-Requirements

+A=Dominant estate

+B=Servient estate 

+Easement must be necessary to access or egress property 

-Right to enjoyment of easement is granted to public or community 

-Can be dedicated in three manners 

+By dedication 

+By prescription 

+By condemnation 

-Easement by dedication 

+Transfer of interest of land in easement, but not

in title of land 

+Voluntary transfer 

+Statutory dedication 

*Must be carried out in compliance with applicable statutes

-Easements by Prescription

+Similar to private creation

+Two important caveats

*Public prescription easement must not be used strictly for pleasure or recreation

*Use must be exclusive and not shared by the owner

-Easement by condemnation 

+Public agency forcing private owner to grant easement 

*Must be for public purpose 

*Cannot condemn more land than necessary 

*Owner must be compensated 

*Owner must be afforded due process 

-Deed 

+Loosely translated as a "gift" 

+Necessary as a part of property transfer 

-Deed Restrictions 

+Terms and conditions attached to the transfer of property

-Deed Restrictions are considered a contract 

+Party imposing restrictions must own property 

+Restrictions must be committed to paper and recorded 

+Recordation attaches restrictions to property 

+Contract is between individuals however composed 

-They are reasonable in nature

-They are not immoral or illegal

-They are contrary to public policy 

-They "run with the land" and are binding on the owner and all subsequent purchasers 

+No owner or purchaser can use the property for any purpose that violates the restrictions

-Examples of unenforceable covenants 

+Forbidding future sale based on race or religion 

+Forbidding future sale based age or family status 

+Gov. requiring restrictions in order to grant approval of subdivision 

-Ambiguity?

+All doubts resolved in favor of free use of land 

-Residential Private Gov.

+Empowered to enforce restrictive covenants within a subdivision

-Home owners associations

-Property owners associations

-"Shadow Gov."  

*Compressive Plan

Priorities 

-Primary: Physical development of the community 

+Growth 

+Appearance 

+Use 

-Secondary Issues: 

+Economic 

+Social 

+Environment 

+Fiscal Issue 

-Policy Statements 

+Guiding Development 

-Maps and Charts 

+Existing conditions 

+Projected conditions 

-Elements 

+Land Use

+Circulation/transportation 

+Conservation 

+Recreation/Open-space 

+Housing 

-Time frame for the planning process 

+Preparing to plan-3 months to 1 year 

+Making the plan- 6 months to 2 years 

+Adopting the plan- Up to 3 months 

+Implementing the plan-Up to 30 years.  

-Total sum depends on how inclusive or comprehensive the plan is,

+How many special and techniques 

+Publicity and publication costs 

+Consultants 25,000-50,000 for a small town

-Stakeholder analysis

+Who are the stakeholders that should be involved in the planning process

+How will we involve them in the planning process 

+At what point do certain stakeholders need to be involved 

-Outreach

+Meetings 

+Surveys 

+Focus Groups 

-Publicity 

+Newspapers 

+TV

+Fliers, posters, etc.

-Background 

+History of the community 

+Overviews of previous plans 

+Pop. and demographic 

+Broader regional and international trends that may impact the local community 

-Traffic and transportation plans and reports 

-Economic base analysis 

-Scenario development 

-Buildout analysis 

-Population and economic projections 

-Soils and drainage analysis 

*The courts and land use law 

Federal district court 

-Trial court of federal system 

-Where legal action originates 

-Criminal and civil

-Losing party in district court has right to appeal 

-Appeal must involve a claim of legal error 

-Case is not retried 

-The decision of the lower court is reviewed to determine if error was indeed made. 

-Has original jurisdiction 

+Cases affecting ambassadors, ministers, consuls 

+Disputes between states, states and federal gov.

-Has appellate jurisdiction 

+Last court of appeal 

+Writ of error(old), writ of certiorari (current)

+Reviews Appellate court decisions 

+Reviews state supreme court decisions 

-Case must be brought to court 

-Plaintiff must having legal standing (Plaintiff must have been harmed)

-Court must have power to remedy the dispute 

-Case must have ripeness (It has to be ready to be tried)

-Mirrors federal judiciary 

-Deal with state and local 

-Judicial Power

+Granted by Constitution 

-Judicial Review 

+A custom and philosophy developed early in the republic 

+Places supreme court in the position of determining constitutionality of the government's polices, laws or actions (When Challenged)

+Make sure its not implemented  

-Nine Justices 

-Briefs are submitted to court

+Including "amicus" (Friend of the court) briefs 

-Lawyers present case justices 

-Justices interrogate lawyers based on presentation and questions that arise from their beliefs 

-30 minutes are allocated to each side 

-A majority is when at least five justices agree on an outcome 

-Outcome is a result of meeting in private, after hearing 

+Letting the decision of lower court stand 

+Reversing the decision of the lower court 

-The determination of a regulation's or policy's constitutionality has a direct bearing on how a local jurisdiction regulates land 

-Reads between the lines constitution 

-Provides guidance to government (Its limitations to power)

-Provides guidance to citizens 

-Regulations are presumed to be constitutional-"Presumption of legislative validity"

+Party attacking regulation has burden 

+Benefit of doubt given to regulators 

*Presumption is reversed for racially based equal protection issues 

-Standing 

-Ripeness 

-Mootness 

+Are you actually being harmed, or is the theoretical 

-What is an opinion?

+Not just a statement of "You win, you lose" 

+Includes the logical reasoning and justification of the judicial interpretation 

-Constraints and expectations 

+Majority opinion must have agreement of at least 5 justices 

+It must address only the issues before the court 

+It is guidance for future similar issues before lower courts (State and Federal)

+Should make use of proper legal references 

-Majority opinion carries the legal weight 

+It's interpretation counts precedent 

-May have "concurring" opinions 

+Justices may agree with most of the majority, but wish to digress or point out where the differ

-May have dissenting opinions justices may disagree so much with majority, they wish to provides their legal reasoning for why its wrong

*Zoning 

Intro

-Use Regulations: Industrial, Commercial, Residential 

-Intensity Regulations: Units per acre, % land cover 

-Bulk Regulations: Height, Setbacks