Legal Basis For Planning

1) Legal Basis for Planning a) i) ii) 2) Planning is an activity of government. It involves the exercise of powers vested in government and the expenditure of public funds. It is limited by, among other things, the limitations of the powers of government.

The Constitutional Framework a) The Constitution is essentially a pact between the states, while the Constitution has much to say about which powers are assigned to the federal government and which powers are delegated to state governments, it is silent on the issue of how the powers of government are to be divided between states and sub-state units of government (counties and municipalities). In fact, a literal reading of the Constitution gives no indication that there are to be sub-state units of government at all. Nowhere in the Constitution are words like city, town, or county mentioned. As a result, it has become an accepted principle of the law that sub-state units of government are creatures of the state and have no powers other than those assigned to them by state governments. This is referred to as Dillons rule.

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Legal Powers and Limitations of Planning a) i) ii) iii) b) Local governments have those powers, and only those powers, granted to them by the state. Local governments are also guided and limited in their actions by rights guaranteed to individuals by the U. S. Constitution or by state constitutions. When there is a disagreement over issues of individual rights or the extent of government power, the ultimate arbitrator is the court system. Local planning efforts are thus limited by what courts will allow or what local officials believe they might allow if the issues at hand were put to a legal test.

One of the powers that local governments have is the power of eminent domain which is a phrase that means that government has the right to take property for public purposes. i) The building of roads, for example, generally involves the taking of private property for the right of way. When government takes property, it must compensate the owner for the value of what is taken. i) If agreement cannot be reached between government and property owner the matter goes to court.

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After hearing expert testimony, the court then determines the value of the loss imposed upon the property owner by the act of taking. That must then be paid to the property owner by the government.

The eminent domain process is an example of the exercise of government power subject to limitation by the constitutional rights of individuals. i) ii) The Fifth Amendment of the Constitution states that private property shall not be taken for public use without just compensation. The Fourteenth Amendment states that no person shall be deprived of life, liberty, or property without due process of law.

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Public Control Over Private Property a) Public control over the use of private property is a very different matter than the public taking (without just compensation) of private property. i) ii) b) Public control of the use of private property involves imposing uncompensated losses upon property owners. The land-use control technique, zoning, does exactly what is alluded to previously. It limits the uses to which the land can be put.

If the most profitable use is not among the permitted uses, then a loss is necessarily imposed on the owner. i) ii) iii) However, no compensation need be paid to the owner. Nor is a judicial procedure required for the community to exercise control and thereby impose the loss. The communitys zoning law stands unless the property owner brings a successful lawsuit against the community.

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The capacity to obtain the benefits of limiting an owners use of his or her property without having to pay compensation clearly accounts for the popularity of zoning. i) The community obtains partial rights of ownership some control over the use of the property without having to go to the expense of becoming an owner.

d)

Given the apparent conflict between such community powers and constitutional guarantees regarding property rights, it is not surprising that it took many years and many court cases to establish the zoning rights of communities. i) ii). In 1909, New York city became the first city to enact what might be considered the first modern zoning ordinance in the U.S. Even today, the legal structure of zoning is still evolving.