Land Litigation

The term Land Litigation has quickly become the root of an ongoing reaction to a spatial crisis everywhere. The amount of land on a continent or within a country is limited, and as populations grow, open areas tend to become scarce.

The United States, according to the U.S Census Bureau, has a population of 303,328,637. This is at a fairly rapid growth rate of an estimated 2.5 million each year. With this estimation, the U.S. projected population will grow to 394 million by the year 2050. These relatively high growth rates are the result of medical advancements and an increase in agricultural productivity. However, current research has shown a decline in rate of growth in recent years. But how many people can the U.S. hold? The United States of America has an area of 3,793,079 square miles and our current population density is 80 people per square mile. 80% of the American people live in urban areas where there is a much higher density, but this gives an idea of where we are spatially in the U.S. These urban areas are attractive to the American people because they provide a close proximity of housing, jobs, services, and other accommodations that make living easier.

In many instances a phenomenon called urban sprawl is occurring where cities are becoming too small to hold a demanding and growing population, and further development is needed. This requires further development that in turn encroaches on areas that were used for agricultural production or otherwise natural areas. Many view this as a detrimental yet necessary process for economic and anthropogenic need. How much development is too much?

The ability to own, control, and use land continues to hold a special place in our society because it is inextricably tied to the concepts of individual liberty and property rights. Although these properties were not inherited via merit or prior appropriations, land has become a basis of wealth, and it is closely tied to natural resource use. Property rights have a long history of protecting owner and private land, and several law doctrines have developed. Today, a wide array of statutes regulate land use either directly or indirectly. Direct land use controls are those whose primary focus is the regulation of all activities on specific pieces of land. These controls include zoning laws, and laws protecting critical environmental resource areas. Statutes that control land use indirectly include several major federal environmental statutes such as the Endangered Species Act, the National Environmental Protection Act, Comprehensive Environmental Response Compensation Liability Act, and so on. These statutes protect different environmental concerns that could be protected by form of land litigation.

For effective governance, citizenship, urban planning, and economic strategy in metropolitan areas, every level of government and the private and civic sectors must collaborate across jurisdictional boundaries. Public policy and urban management today generally do not correspond to the reality of metropolitan regions as fundamental units of market activity, social interaction, culture, transportation systems, land-use planning, and environmental protection. Zoning has been a powerful tool granting power to communities. This model, which has been updated several times since its original introduction, restricts the range of permitted zoning schemes in accordance with the limits of the state’s police power and other constitutional requirements. The goal of zoning is to separate, as much as possible in an already built environment, residual areas from commercial and industrial uses and to isolate the most noxious industrial uses from other uses. As we become increasingly aware of the environmental impacts of human land development, zoning is becoming a vital part of land litigation.

Zoning and other land use regulations have been used to preserve open space, protect watershed and wetland areas, save areas of aesthetic and historical value, and promote general environmental goals. A few problems associated with zoning show that it can have a significant effect on property values. Zoning pushes real estate prices down when it forbids valuable uses and drives up when it prevents noxious uses from being introduced nearby. As demand in an area changes over time, the original zoning litigation and titles may give way to new realities. This is when urban sprawl and extended development plans come to play. Another issue with zoning is that the traditional goal of segregating land uses may have unassessed indirect costs in energy consumption and environmental pollution. The traditional model forces people into longer, inefficient commutes to get from their residential areas to the limited industrial and commercial areas where they work. Large-lot zoning for single-family housing forces any further new development to spread and consume important environmental landscapes. The general consensus is that zoning, at times, tends to disarrange development from the path it would follow if permitted to progress naturally.

As more problems caused by traditional zoning have come to light, new and more flexible techniques have been created that permit communities to control development but with greater flexibility. Enabling communities to have proper standards that are specific to that particular environment is a vital benefit to land use. One zoning technique that plays a vital role in land litigation is Transferable Development Rights (TDR). To implement a TDR an urban area designates one area or plot of land as a preservation district and another as a development district. The landowners in the preservation district lose some rights to develop their land, but they are given development rights that they can sell to landowners in the development areas. These landowners are then able to develop their land more densely than they potentially could have without the new rights. TDRs are particularly useful because they allow cities to create restrictions in the preservation district that would otherwise constitute a “taking”, without having to pay direct compensation to the affected landowner. Prior to many statutes, such as TDR, the government could legally deprive a person of their private property without pay or just compensation through eminent domain, regulatory reasons, or confiscation by repossession. With TDR in effect, the city pays the landowner indirectly by allowing them to sell the right of development which he or she can no longer exercise. This type of policy can keep land that should not be developed in a preserved state and furthermore, protect the environment. Where unlimited growth causes local environmental problems, restricted growth plans or moratoria have been upheld. In the case of Golden v. Planning Board of Ramapo (N.Y. 1972), a town adopted a plan that significantly restricted development for a period of eighteen years. The plan called for the city to build the infrastructure needed to support the planned development. This was a case where land litigation ended with the interest of the community and future development. The court noted that the plan would impose a severe restriction on landowners for a significant time, but it determined that the overall public purpose of the statute fell within the general planning powers envisioned by the zoning enabling statute. Land litigations that followed this case led to other zoning decisions that had adopted a broad definition of what “public welfare” could be promoted through zoning and land use regulation.

In some cases, communities have been permitted to ban all new construction by imposing a moratorium. Although viewed by courts as extreme action, moratoriums are used widely with utility connections to new development areas. It is important that in the event of a moratorium, along with other growth restrictions, that the actions are taken when there is a proven threat to public health or safety. Otherwise such litigation can be found arbitrary and capricious.

Two other common law land- related doctrines are applied in efforts to conserve and protect environmental resources. Under common law of waste, a current inhabitant of a piece of land is forbidden to do anything to diminish the value of land if it subject to a future interest. This doctrine prevents current possessors or users of land from extracting resources from the land or from polluting or altering it in any way that would devalue the property. The application of this process in a land litigation viewpoint is sometimes hard to play when there is a split in ownership between current and future interest. It is also hard for courts to decide if cases are actionable due to the assessment of the land and whether the action was an improvement. Nuisance is a branch of tort law that is used to protect a landowner’s right to quiet enjoyment to their land. A nuisance is any unreasonable use of land that interferes with another land owners quiet enjoyment of land, but falls short of physical trespass. Nuisance doctrines are most widely used to prevent air, water, and groundwater pollution, and in some cases erosion. Standards are typically set to protect the public and the polluter in this case, but if a polluting party violates regulatory standards, the plaintiff has the option of pursuing administrative remedy or suing under nuisance law. The violation of regulations often shows evidence that a nuisance exists. The use of waste and nuisance law both can serve the environment as well as public interests to properly litigate lands.

On a proponent side for the development of lands would often argue that sustainable development is compatible with human welfare, and there is a way that lands can be used for both development and preservation purposes. Sustainability entered the global debate in the early 1980s, when the United Nations’ secretary general asked Norway environmental prime ministers to produce a “global agenda for change”. The resulting report, produced by Oxford University, called Our Common Future defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (Oxford U. Press, 1987). The report acknowledges that limits on population and resource cannot be known precisely, that problems may arise gradually rather than suddenly and will more than likely be marked by rising costs. It also outlines that limits may be redefined by technological innovations. They exist and must be taken into account when governments, corporations, and individuals plan for the future. Its kind of amazing that this report produced several years ago, is so accurate and yet we are still facing the forecasted problems, even after reports like this one have been made public. Still sustainable development is viewed as a realistic answer to many development planning issues. Not surprisingly, many people consider sustainable development to be in conflict with business and industrial activities, private property rights, and even some human freedoms. Many opponents argue that the sustainability of development practices can rarely be taken into account until after buildings and roads have been built and the damage is already done. This is why government policies are at the forefront of land litigation, and have the responsibility to make sure that with every development plan comes a proper management practice. Environmental Impact Statements, a process mandated in NEPA, are often used before a final decision is made to assess different environmental factors in the area that may be adversely affected by the development. NEPA states that an EIS must be prepared whenever “ proposals for legislation or other major federal actions significantly affect the quality of the human environment” (102(2)(C)). EIS often play as a required environmental advocate and serve as and aid in many land litigation cases. There are a number of methods to make sure that developers play a responsible role in their additions to landscapes. These have increasingly been the trend as human impacts are seen in land-use issues all over the world.

Land litigation is a complex, yet important part of environmental law that can protect both human health and environment. As we find ourselves in a world with increasing population and diminishing environmental returns, we as environmental scholars must use our clout. It is important that both consumers and developers asses the necessity of development plans, and above all, require that landowners and the government hold people responsible for the impacts that their actions inflict on our land.

References:

Davidson, Julie L. Sustainable Development: Business as Usual or a New Way of Living? Johannesberg: United Nations World Summit, 2000.

Karl, Kehde. "The Smarter Land Use Project." 1989. 1 Dec. 2007 .

Kendall, Douglas T. Takings Litigation Handbook. Amer Legal Pub Corp, 2000.

Mandelker, Daniel R. "Land Use Law." Washington University Law. 3 Dec. 2007 .

Payne, Dinah M., and Cecily A. Raiborn. "Sustainable Development." Journal of Business Ethics os 32 (2001).

Peterson, Craig A. Handling Zoning and Land Use Litigation: a Practical Guide with 1985 Supplement (Contemporary Litigation Series). Lexis Law Pub, 1982.

Thomas, Easton A. Environmental Issues. Guilford, Conn: McGraw-Hill, 2003.

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