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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

Land Use Regulation Final Exam Outline

Wiseman; Spring 2016

What is Land Use Regulation?

Overall goal is to plan for and provide infrastructure, promote “orderly development” and reduce conflicts among neighboring users of land through rules and the enforcement of rules.
Mostly about local law
“Ordinances” Think of these as legislation made at the local level

Tends to prevent nuisances
But further, ordinances attempts to protect from negatives that might not qualify as a nuisance but should still be regulated (sky scrapers next to a Single family home)
Municode is a website that you can go on to search tons and tons of city governments codes/ordinances
You can also go to the city or town website

How to Accomplish Land Use Goals?

1. Planning

Planning informs the regulation
Comprehensive plan- where a city planning commission takes a massive map of an entire city and say this is where we was to encourage/discourage certain types of growth and to what degree of density.
It is their vision of the city
It is a giant map and a text

2. Regulation

Then there is a city ordinance that implements the comprehensive plan “Land Development Code”
Ordinances implement the parts of the comprehensive plan

1. Planning for the location of structures—residential, commercial, industrial.

Example: In what parts of Tallahassee should we encourage future growth?
How “dense” should new development be in various parts of the city? 1 house or condo allowed per 1/8 acre, or per 1 acre?

Example of a portion of a city ordinance—from Tallahassee Code of General Ordinances:

Tallahassee Code of General Ordinances Article I, Section 4-5

“Except as otherwise provided in this chapter, it shall be unlawful for any person to keep within the city any livestock or fowl.”

Exceptions. This shall not apply to:

“The keeping of female chickens (hens) for non-commercial purposes so long as they are confined in a securely enclosed yard or pen at all times and are kept no closer than 20 feet to neighboring dwellings. In addition, a single rooster may be kept in conjunction with said hens for the purpose of flock sustainability. “

Early definition of comprehensive plan (Class 1 reading p. 17)

A city plan is a master design for the physical development of the territory of the city.
It constitutes a plan of the division of land between public and private uses, specifying the general location and extent of new public improvements, grounds and structures . . . and, in the case of private developments, specifying the general distribution [of land areas] amongst various classes of uses, such as residential, business, and industrial uses.
A comprehensive plan is not one document that never changes b/c cities have to constantly plan for their future

It may need to be updated every 10 years or so

The comprehensive plan is actually approved by the local legislature as an official document
Some States have legislation which require certain topics to be included in the comprehensive plan

Ex. Florida requires coastal planning

In Tallahassee:

Comprehensive plan is “the long-range statement of how and where growth and development in the community is to be located in the future.
It is adopted by ordinance, and includes a number of “elements” (or chapters) related to the social, economic, and physical aspects of future development.”

William Penn’s Plan for Philadelphia

“Be sure to settle the figure of the town so as that the streets hereafter may be uniform down to the water from the country bounds.”
“Let every house be placed, if the person pleases, in the middle of his plat, so that there may be ground on each side for garden or orchards or fields, that it may be a green country town which will never be burnt and always be wholesome.”

Lecture Q 1:

What is the document that is like a “local constitution” and guides local governments who write land use ordinances? à Answer only with the name of the document through “Assignments” on Blackboard by 11:59 PM on Monday, 1/11.

Why May Local Governments Regulate for Aesthetics?

“Police powers” – power to regulate for the public health, safety, and welfare.

Supreme Court held that aesthetics are a part of public health

Powers reserved to the states under the 10th Amendment of the U.S. Constitution.
States delegate to local governments through zoning enabling acts and other legislation.

Local governments only get as much power as is delegated to them from the state

Planning Also Includes Infrastructural Planning

Where will we build future streets and highways and extend sewage lines?
Should Tallahassee include bike lanes on existing and new streets?

In Florida:

There is a legislative requirement in Florida that when a local government regulates/enacts an ordinance the local gov is supposed to ensure that the regulation comports with the comprehensive plan when it regulates land uses.
It is almost like a local mini constitution

Tallahassee-Leon County Comprehensive Plan

Capital improvements element:

“determine what capital improvements are needed in order to achieve and maintain the standards for existing and future populations, and to repair or replace existing public facilities.”

Mobility element of Tallahassee-Leon County comprehensive plan (excerpt)

“Appropriate improvements or enhancements to the multimodal [transportation] network shall be required as a condition of development approval, such as . . . “[f]ull accommodations for bicycles, including lockers, showers, and racks.”

How To Accomplish Land Use Goals?

1. Planning
2. Regulating according to the plan through zoning and other local regulations.

Cities like Tallahassee typically have a land development code and additional city ordinances.


One of the most primary types of land use regulation
Zoning involves a map and text explaining the map
Cities and towns divide up their territory into “zones” and list the uses that they think should or shouldn’t be encouraged in that district
States delegate authority to zone to cities and towns through what was traditionally called the Zoning Enabling Act.

“Uses” include:

physical structures

e.g., “You may build a single family home but not an office building in the residential zone” and each structure may be no more than 30 feet tall in this zone; and

permitted and prohibited activities on properties in a particular zone

e.g., “No one may operate a daycare in the single family residential zone.”

se to be obtained incrementally through:

The plan might direct furtherance of the policy objective through the use of different/specific types of authority:

Individual decisions about zoning/rezoning
Development approval and disapproval
Municipal expenditures on capital improvements

2) Continuous: periodically reevaluated and amended

F.S. 163.3191 requires each local government every 7 years to evaluate its comprehensive plan “to determine if plan amendments are necessary to reflect changes in state requirements,” and if amendments are necessary, make them within one year.
“Local governments are encouraged to comprehensively evaluate and, as necessary, update comprehensive plans to reflect changes in local conditions.”

3) Based on a determination of present and projected conditions in local government territory.

Need for economic growth, etc.

4) “Fair”: helps ensure that land use regulation and individual land use decisions follow some form of predictable pattern and are not arbitrary.

Blue print so that all the individual land use decisions we make are not arbitrary because they are following a specific goal
Two legal causes of action to argue that the land use action is not fair:

(a) State statute—local land use actions must be “consistent” with comprehensive plan and must be adopted following certain procedures. Local comprehensive plans must comply with state law.
(b) Federal (and sometimes state) constitutions: substantive due process right to “fair” (non-arbitrary) zoning.

Must be fair and allows citizens to take action if it is not.

5) Comprehensive: Avoid the situation in which a city plans to put a water diversion/storm water structure in one neighborhood only to find that the other neighborhood floods as a result.

Avoid encouraging new development in an area where there aren’t sewer or water lines, or lines aren’t planned for.

Florida has detailed state requirements for local planning

Florida was part of the “Quiet Revolution” in land use—states asserting authority over local land use regulation.
States initially had all authority over local land use regulation because states have police powers given to them under the constitution which allow them to regulate for the health care and safety of the citizens (which includes land use), but delegated much of it to local governments.
States like Florida still control many elements of local regulation—state requires comprehensive plans, requires that regulation be consistent with the comprehensive plan, etc.

Oregon, Hawaii, Vermont are very regulated as well