부동산 지식 24-Land Use Planning And Control-2.Public Land Use Control

부동산 지식 24-Land Use Planning And Control-2.Public Land Use Control

1.Real Estate Planning
2.Public Land Use Control
3.Private Land Use Control
4.Environmental Controls

PUBLIC LAND USE CONTROL
Zoning
Zoning administration
Subdivision regulation
Building codes
Public acquisition and ownership
Environmental restrictions

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. Other 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.
In exercising its ownership rights, a municipality may annex property adjacent
to its existing property or purchase other tracts of land through conventional
transfers. Where necessary, it may force property owners to sell their property
through the power of eminent domain.

Zoning Zoning is the primary tool by which cities and counties regulate land use and
implement their respective master plans. 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 zoning ordinance. The vehicle for zoning a city or county is the zoning
ordinance, a regulation enacted by the local government. The intent of zoning
ordinances is to specify land usage for every parcel within the jurisdiction. In
some areas, state laws permit zoning ordinances to apply to areas immediately
beyond the legal boundaries of the city or county.
Zoning ordinances implement the master plan by regulating density, land
use intensity, aesthetics, and highest and best use. 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
Ordinance validity. Local planners do not have unlimited authority to do
whatever they want. Their 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.
Building permits. 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. Further zoning enforcement is achieved through periodic inspections.
Types of zones. 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.
Chapter 8: Land Use Planning and Control 105
Six common types of zone are
 residential
 commercial
 industrial
 agricultural
 public
 planned unit development (PUD)
Residential. Residential zoning restricts land use to private, non-commercial
dwellings. Sub-zones in this category further stipulate the types of residences
allowed, whether single-family, multi-unit complexes, condominiums, publicly
subsidized housing, or other form of housing.
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. 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. Sub-zones in this category may limit the type of retail or office
activity permitted, for example, a department store versus a strip center.
Commercial zoning regulates:
 intensity of usage, by limiting the area of store or office per site
area. Intensity regulation is further achieved by minimum parking
requirements, setbacks, and building height restrictions.
Industrial. Industrial zoning regulates:
 intensity of usage
 type of industrial activity
 environmental consequences
A municipality may not allow some industrial zones, such as heavy industrial, at
all. The industrial park is a relatively recent concept in industrial zoning.
Agricultural. Agricultural zoning restricts land use to farming, ranching, and
other agricultural enterprises.
Public. 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 (PUD). planned unit development zoning restricts
use to development of whole tracts that are designed to use space efficiently and
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maximize open space. A PUD zone may be for residential, commercial, or
industrial uses, or combinations thereof.
Zoning
administration Zoning Board of Adjustment. A county or local board, usually called the
zoning board of adjustment or zoning appeals board, administers zoning
ordinances. The board rules on interpretations of zoning ordinances as they apply
to specific land use cases presented by property owners in the jurisdiction. In
effect, the zoning board is a court of appeals for owners and developers who
desire to use land in a manner that is not entirely consistent with existing
ordinances.
The board conducts hearings of specific cases and renders official
decisions regarding the land use based on evidence presented.
A zoning board generally deals with such issues and appeals as:
 nonconforming use
 variance
 special exception or
conditional use permit
 zoning amendment
If the board rejects an appeal, the party may appeal the ruling further in a court
of law.

Nonconforming use. 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. This type of
nonconforming use is a legal nonconforming use. A board usually treats this
kind of situation by allowing it to continue either
Zoning Board
of
Adjustment
Variance
–hardship
Amendment
–change
zone
Special
exception
–public good
Nonconforming
use
–legal
–illegal
Chapter 8: Land Use Planning and Control 107
 indefinitely
 until the structures are torn down
 only while the same use continues, or
 until the property is sold
For instance, a motel is situated in a residential area that no longer allows
commercial activity. The zoning board rules that the motel may continue to
operate until it is sold, destroyed or used for any other commercial purpose.
An illegal nonconforming use is one that conflicts with ordinances that
were in place before the use commenced. For instance, if the motel in the
previous example is sold, and the new owner continues to operate the
property as a motel, the motel is now an illegal, nonconforming use.
Variance. 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
For example, an owner mistakenly violates a setback requirement by two feet.
His house is already constructed, and complying with the full setback now
would be extremely expensive, if not impossible. The zoning board grants a
variance on the grounds that compliance would cause an unreasonable hardship.
A grant of a zoning variance may be unconditional, or it may require
conditions to be fulfilled, such as removing the violation after a certain time.
Special exception. 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 possible example is an old house in a residential zone adjacent to a retail
zone. The zoning board might grant a special exception to a local group that
proposes to renovate the house and convert it to a local museum, which is a
retail use, since the community stands to benefit from the museum.
Amendment. A current or potential property owner may petition the zoning
board for an outright change in the zoning of a particular property. For example,
a property zoned for agricultural use has been idle for years. A major employer
desires to develop the property for a local distribution facility, which would
create numerous jobs, and petitions for an amendment. The board changes the
zoning from agricultural to light industrial to permit the development. Since a
change in zoning can have significant economic and social impact, an appeal for
an amendment is a difficult process that often involves public hearings.
Subdivision
regulation In addition to complying with zoning ordinances, a developer of multiple
properties in a subdivision must meet requirements for subdivisions.
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Subdivision plat approval. The developer submits a plat of subdivision
containing surveyed plat maps and comprehensive building specifications. The
plat, as a minimum, shows that the plan complies with local zoning and building
ordinances. The project can commence only after the relevant authority has
approved the plat.
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. Many states have adopted policies that require developers,
especially of subdivisions, to take responsibility for the impact of their projects
on the local infrastructure by taking corrective action. Concurrency is a policy
that requires the developer to make accommodations concurrently with the
development of the project itself, not afterwards. For example, if a project will
create a traffic overload in an area, the developer may have to widen the road
while constructing the project.
FHA requirements. In addition to local regulation, subdivisions must meet
FHA (Federal Housing Authority) requirements to qualify for FHA financing
insurance. The FHA sets standards similar to local ordinances to ensure an
adequate level of construction quality, aesthetics, and infrastructure services.
Building codes Building codes allow the county and municipality to protect the public against
the hazards of unregulated construction. Building codes establish standards for
virtually every aspect of a construction project, including offsite improvements
such as streets, curbs, gutters, drainage systems, and onsite improvements such
as the building itself.
Building codes typically address:
 architectural and engineering standards
 construction materials standards
 building support systems such as life safety, electrical,
mechanical, and utility systems
Certificate of occupancy. 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.
Public acquisition
and ownership 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.
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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
In many cases, public acquisition of property is a voluntary transaction between
the government entity and the private owner. However, if the private party is
unwilling to sell, the government may purchase the property anyway. The power
to do this is called eminent domain.
Eminent domain. 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. In exchange for the interest, the government must
pay the owner “just compensation.”
To acquire a property, the public entity initiates a condemnation suit. Transfer of
title extinguishes all existing leases, liens, and other encumbrances on the
property. Tenants affected by the condemnation sale may or may not receive
compensation, depending on the terms of their agreement with the landlord.
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.” The resolution
must be adopted at a formal hearing where the owner may voice an opinion.
Once adopted, the government agency may commence a condemnation suit in
court. Subsequently, the property is purchased and the title is transferred in
exchange for just compensation. Transfer of title extinguishes all existing leases,
liens, and other encumbrances on the property. Tenants affected by the
condemnation sale may or may not receive compensation, depending on the
terms of their agreement with the landlord.
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.
As an eminent domain proceeding is generally an involuntary acquisition, the
condemnation proceeding must accord with due process of law to ensure that it
does not violate individual property rights. Further, the public entity must justify
its use of eminent domain in court by demonstrating the validity of the intended
public use and the resulting “public good” or “public purpose” ultimately served.
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The issue of eminent domain versus individual property rights has recently come
under scrutiny in light of a 2005 Supreme Court ruling that affirmed the rights of
state and local governments to use the power of eminent domain for urban redevelopment and revitalization. The ruling allowed that private parties could
undertake a project for profit without any public guarantee that the project would
be satisfactorily completed. The ruling brought the issue of “public use” into
question, as the use of the re-development could well be private and even a
private for-profit enterprise. The winning argument was that the “public purpose”
is served when redevelopment creates much needed jobs in a depressed urban
area. As a result of this decision, many see the power of eminent domain and the
definition of public good as being in conflict with the constitutional rights of
private property ownership. New and different interpretations of the public’s
right to pre-empt private property ownership by eminent domain may be
expected.