Questions on Land Law Problems

Land law questions have become more prevalent in part due to population growth.

Land law has become a frequent subject for local, state and federal courts due to the increase in population and changing land needs. Parties often have disagreements regarding such topics such as how a particular piece of land should be used or whether a land regulation is constitutionally valid. There are a number of specific areas where there are questions pertaining to land law.

Eminent Domain

The question of whether the government can legally take property from a private owner is addressed in the Constitution under the Fifth Amendment Takings Clause. This concept is called "eminent domain" and reads, "Nor shall private property be taken for public use without just compensation." In a general context, the government has the power to take private property if there is a benefit to the public welfare. However, the Takings Clause requires that the government provide the property owner with just compensation. Leading court cases require the party be paid the fair market value of the property at the time of the taking, but the amount of compensation is often a point of contention for involved parties.

Zoning

Zoning involves regulating land for specific purposes, such as residential, commercial or industrial needs. Almost all cities and towns have a comprehensive plan for zoning, which outlines what types of residences or businesses can be located in what area. Zoning issues come into play when one party wants to use the land one way, but the land is zoned for a different use. For example, one party might want to open a liquor store in an area that is zoned only for single family homes. The power of government to regulate land through zoning is found in the Constitution; however, it is not unlimited and must support the public welfare.

First Amendment Rights

The First Amendment is often cited in land law questions when a party feels his right to free speech has been violated. City ordinances which limit one's ability to place a sign in his or her yard sometimes are found to be a violation of the First Amendment. In addition, businesses that deal in adult content occasionally fight to maintain their business in a current location based on a First Amendment right. A frequent question in some cases is whether the regulation being attacked is "content based," meaning it was simply designed to limit the content or message of a particular type of business.

Low- and Moderate-Income Housing

The availability of affordable housing is another question that has been addressed by the courts. Modern case law has found it unconstitutional to exclude housing for people based on socioeconomic status. The policy of inclusionary zoning promotes the use of measures to promote affordable housing. This includes subsidized housing, removing excessive restrictions on housing and making a variety of housing options available to the public.

References

• Cases and Materials on Land Use; David L. Callies, 2008

Resources

• LexisNexis: Land Use Controls- Public
• LexisNexis: Land Use Regulation and the Takings Clause