Protecting the Environment Through Land Use Law: Standing Ground

AuthorJohn R. Nolon
Pages23-59
23
Chapter 2:
Protecting the Environment
Through Land Use Law:
Standing Ground
I. Overview of Land Use Regulation and
Environmental Law
is chapter traces t he history of land use control in the United States and
reviews the origin of property rights and the extent to which they may be reg-
ulated by governmental agencies, par ticularly by local governments through
their delegated authority to adopt regulations governing the use of privately
owned land. e chapter discusses the respective roles of the federal, state,
and loca l governments in controlling la nd use and protecting the environ-
ment. To illustrate these roles, it contains three case studies indicating how
fragmented and in need of coordination the federal legal sy stem is regarding
the protection of environmental resources and functions. e third of these
cases involves a detailed look at the eorts of all three levels of government to
regulate hydraulic fracturing, showing the signicant friction that is involved
in determining who should decide where and how unconventional gas explo-
ration should occur. e chapter ends by discussing how federa l, state, and
local inuences on the land can be better coordinated and, in so doing, begin
to reinforce, support, and inuence the proper use of local land use authority.
A. The Original Blueprint
e U.S. system of land use control was based initially on English law prec-
edents. e English system established strong private property rights which
were limited initially by a few common law doct rines created and enforced
by the courts. Gradually, a system of regulating building construction and
particularly noxious, or inappropriately located, land uses evolved at the local
level. ere was no “national” land use system in England at the time of the
creation of the federa l republic in the United States. Under the U.S. s ystem
of government, states retained the power to dene and limit property rights,
24 Standing Ground
including the rig ht to regulate the use of the land a nd its natura l resources.
From that large reservoir of authority, states have delegated land use con-
trol principally to local governments, including the power to create land use
districts that dictate how cities, towns, and villages and their surrounding
regions develop.
All states empowered local governments to adopt land use plans, to estab-
lish uniform zoning districts, and to review and approve land subdivision
and site development. In most states, local governments have been given
additional powers to achieve proper development patterns and to mitigate
the adverse impacts of land development on natura l resources and the envi-
ronment. Local governments have used this authority in countless ways,
although not uniformly, to protect and enhance natural resources and the
local environment.
e U.S. Const itution gave the national Congress the power to regulate
interstate commerce,1 including the authority to prevent sources of environ-
mental pollution that enter navigable waters or travel across state lines in the
air. is authority has been broadly interpreted, sustaining some federal reg-
ulation of private land when there is a rational basis for nding that the activ-
ity aects interstate commerce. is power was used extensively in the 1970s
to adopt several powerful top-down statutes to protect natural resources such
as air, water, and threatened species, among others. Congress also has the
authority to tax and spend, which it can use to discourage private pollution
and to encourage positive state and loca l activity rega rding the environment
and land development.
is multi-jurisdictional approach has resulted in overlapping regimes,
with all t hree levels of government establishing rules for some matters, such
as wetlands and habitat protection, preser vation of natural resources, trans-
portation development, and prevention of environmental pollution. A s a
result, the contemporary cha llenge is to integrate the various governmental
inuences on private land use to limit wa ste and redundancy while preserv-
ing the need for exibility in addressing diverse local, regional, state, and
federal interests.
B. Common Law Origins and the Colonial Period
England’s system of land use was originally based on feudal tenure, in which
trusted allies of the King were given rights in the land, which were not pri-
vately or exclusively held. ose who held the land owed de ned services to
the sovereign, and the sovereign owed them protection in return. is form
Protecting the Environment Through Land Use Law: Standing Ground 25
of land control was later replaced by individual property ownership. Under
English common law, at the time that our federal system was created, private
land ownership was regarded as sacred. Few land use regulations existed,
and full enjoyment of property free from control was encouraged. e right
to exclude others from the land was protected by trespass actions brought in
the common law courts. e English rule governing groundwater allowed
surface owners to exploit their aquifers without limits. Any intentional incur-
sion onto the land of another, whether actual damage occurred or not, was
actionable, a nd liability for intentional trespass was absolute, regardless of
motive or harm eected.
e powerful right of individuals to use their land under the common law
was balanced to a degree by the doctrine of nuisance, which established that
private landowners could not use their property in a way that was injurious
to property held by others. Nuisance remedies were limited, by and large, to
enjoining land uses that actually injured the owners or occupants of adja-
cent land, along with consequential damages. Oensive intrusions included
the eects of smoke, dust, noise, or heat t hat interfered with or diminished
the normal uses of nearby property. Nuisance rules limiting injurious land
uses evolved slowly a nd only in response to one private pa rty’s dispute with
another.
As cities matured in England, the private ownership of city lots made
urban development easier—a llowing individua ls to build as they wished on
their land in response to market demands. Unfettered land ownership in
urban areas, however, gave rise to dangerous overcrowding, heavy trac con-
gestion, and the rapid spread of disease and re. In England, the great re of
1666 in London led to the adoption of municipal building construction laws
that required brick exteriors, wider streets, and open space along the ames
River for access to water for reghting.
England’s land use legacies to the United States are, rst, strong support
for the private ownership of land, with uses limited by nuisance doctrines;
and, second, the legitimacy of regulation of building construction and of the
location of noxious land uses by the local municipality. Land use regulation
under the common law system relied on municipalities, not state, provincial,
or national governments.
By the time of the development of the American colonies, individual
property rights were well established. Individuals were thought to hold pow-
erful c ontrol over their la nd—a concept that limited the power of the state
to regu late that land. Ea rly colonial charter companies and towns granted
private ownership of land to each founding family, which were often sub-

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