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Letter of the Law: What is Land Use?

Letter of the Law: What is Land Use?


SML Perspectives
(December 05, 2013)

What is land use and zoning?

Zoning is the legal process governments use to divide their jurisdictions into "zones" where certain types of business or residential activity can take place. Zoning also imposes regulations on those zones that govern everything from parking to signage to heights and setbacks. Land use is a broader term that connects zoning decisions to economic development, urban growth decisions, and general quality of life. In other words, zoning is a set of local rules and regulations that implement land use policies and visions.

Why do we have zoning controls?

Zoning assumes that some uses are incompatible with other uses, such as a cell tower near an airport, a topless bar next to a school, or a loud factory next to a residential subdivision. In theory, controlling the location and placement of uses protects property values and enables citizens to invest with greater confidence. In practice, zoning controls over the past 50 years have led to unnecessary segmentation in our lives, preventing us from living, shopping, working and playing in the same general area.

Do zoning laws stifle economic growth?

Having practiced in almost every county in North Carolina and in parts of Virginia and South Carolina, I've concluded that reasonable zoning regulations seldom deter growth and investment. However, some towns have anti-growth cultures that lead to unreasonable zoning codes and land use processes that are unfriendly to businesses and citizens alike. It's the local culture and the attitude, not reasonable zoning, that can make some communities worse than a domineering HOA on steroids.

How has the practice changed?

When I did my first land use case more over 25 years ago it was more important to know the decision makers than to know the law. Those times are gone. Today, planners are steeped in new urbanism and quick to impose their personal visions; transportation departments typically base decisions on traffic engineering studies; the Clean Water Act and a host of state statutes add costs and limit development; approval processes are more prescriptive; and governments tend to be quicker to impose controls through site specific zoning conditions. Technical knowledge comes first, and relationships come second. Without that technical knowledge, negotiations and workouts on the staff and political levels lie somewhere between difficult and impossible.

Do environmental laws complicate land use decisions?

Environmental laws and land use and zoning laws are different creatures with different purposes, but they often produce the same results. I do not argue that we must development differently near streams and within water supply watersheds. The primary ways we do that are through density restrictions, undisturbed buffers, and impervious surface limitations. Sometimes working through zoning restrictions with an environmental regulatory overlay is like playing three dimensional chess.

What skill sets are needed?

When I'm handling complex developments I find that it's critical to listen to planning and technical staffs and to work collaboratively to figure out ways to work out all problems. If those are "skills," then I list them as #1. You also must have an intuitive understanding of the pathology of public decision making, a world where the illogical acquires its own logic and the lay opinion of one voter carries more weight than state-of-the-art computer models produced by ten different scientists. It also helps to be aggressive and pro-active in identifying issues related to ordinance interpretations, and you need to know the entire body of land use law in North Carolina, open meetings laws, public records laws, laws governing surface waters, and the laws governing municipal and county government decision making.

What does the future look like?

With the exception of a couple of years during the recession when governments were begging companies to develop, land use decisions have gotten more and more complex and difficult to manage. The attorney's job is to be the bridge between the new industry or developer and the underlying substantive laws and legal processes. As neighbors become more and more resistant to any change on adjoining land, and as zoning laws become more complex, the harder it will be to get basic land use and zoning changes approved.

This information should not be interpreted as legal advice with regard to specific situations.

Authors
Thomas E. Terrell
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