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Land Use
University of Minnesota Law School
Karkenian, Brad

Land Use Law

Why regulate Land Use?
– land use is one of the most regulated in the country, despite there being a very strong feeling for the importance of private property rights.
– Most areas have zoning and land use regulation
– Usually not tied to political parties, at least as far as where people live and what they say they believe

What other ways could you manage land use?

covenants – permanent, binding restrictions that run with the land
free market

1) INTRODUCTION: Land Use, Planning, and the Law
a) Introduction. Read casebook pp. 1-25
i) Land use could also be regulated by covenants and by allowing the free market to function
ii) Ways to Resolve Land Use Disputes: Moon Township Example
(1) Voluntary Change
(2) Purchase rights from Landlord
(3) Compel owner to change
(4) Market favors the purchase option
b) Land Use Planning: Theory & Practice. Read c.b. pp. 25-46
i) Efficiency and Equity: Government Intervention and its Alternatives
(1) Free Market yields the most efficient allocation of resources
(2) Market Failure – when the market outcome does not produce the maximum social benefit
(3) Price Based vs. Quantity Based Intervention
(a) Price Based
(i) Capture the costs of choices through taxes and fees/subsidies
(b) Quantity Based
(i) Zoning
(c) Non-intervention
(i) Cost to intervene is too high for the results
(4) Externalities
(a) Cost or Benefit that affects others and is not borne by the primary user
c) Common Law of Land Use: Public & Private Nuisance. Read c.b. pp. 47-68
i) Nuisance
(1) Could be used to function as a zoning type function
(a) but is not proactive
(b) not public action, multiple parties are affected by a nuisance
(c) not clearly defined
(2) Public Nuisance – affects everyone equally
(3) Coase Theorem
(a) Two competing landowners will bargain with each other and balance out the issue – if you pollute you pay to the other person enough so that they are compensated for your pollution, assuming no transaction costs.
(b) Social

ngs – Fifth Amendment

sort of mixed up doctrine at this point
1897 – Chicago Quincy RR vs. City of Chicago – main first case that SC looked at takings
Gov’t can take private property as long as there is just compensation – 5th Amendment
Most people say the Chicago case serves to incorporate the 5th amendment into the 14th amendment, and thereby the States – Karkkainen disagrees that this happened, says that they are two different powers – takings(5th) vs. police power (14th)
Baron v. Baltimore was still good law past this point
K says not until 1978 (Penn Central) that SC said 5th amendment was incorporated to the States by the 14th amendment.

Police Power –
– Power of the State to protect citizens – health, safety, morals and general welfare
– inherent power of the State Legislature