Fee Simple Ownership and Land Use Rights

‘‘Fee Simple Ownership’’ is a form of real property ownership in which a property owner unconditionally controls a specified piece of land, including all structures and rights to use the property. It is the most complete interest in real property someone can have. The term is also used as ‘fee simple absolute’.

Fee simple ownership has both geographic and temporal dimensions. The term not only conveys control over the three dimensions of property – across the surface and extending within …

Conservation Subdivisions – An Alternative to Western Ranchettes

Making the Case

While the WPR region is known for its vast and picturesque open spaces, high mountain ranges, deserts, and grasslands, other issues and trends are overshadowing our western landscape and dominating its headlines. One trend has been a dramatic increase in population as the rate of growth in the West has exceeded the national average for the last four decades. As William R. Travis notes in his 2007 book, New Geographies of the American West, between 1990 …

Legislative vs. Quasi-judicial decisions

Almost all planning and zoning decisions made by local zoning boards, commissions, and elected officials fall into one of two categories: legislative decisions or quasi-judicial decisions. The basic difference between the two categories is that legislative decisions establish policies for future application, while quasi-judicial, or administrative decisions are the application of those policies. Examples of legislative decisions – those that establish policies – include the:

  • adoption of plans
  • adoption of ordinances (or amendments to ordinances)
  • passing budgets

All legislative decisions …

Ex parte Contacts

An ex parte communication occurs when a board member in a quasi-judicial proceeding communicates, directly or indirectly, with any person or party in connection with a matter before the board, absent of notice and opportunity for all parties to participate. The term ex parte literally means “one-sided.”

A critical element of due process is providing every party involved in a case the same opportunity to present facts to the decision-making body. Boards and commissions are supposed to base their …

The Purpose of the Comprehensive Land Use Plan

The comprehensive plan, also known as a general plan, master plan or land-use plan, is a document designed to guide the future actions of a community.

The comprehensive plan, also known as a general plan, master plan or land-use plan, is a document designed to guide the future actions of a community. It presents a vision for the future, with long-range goals and objectives for all activities that affect the local government. This includes guidance on how to make decisions …

Conflicts of Interest in Land Use Decision-Making

Elected and appointed officials involved in land-use decision making must…

Elected and appointed officials involved in land-use decision making must not be tainted with prejudice regarding on matters that come before them. Such prejudice exists when the individual finds herself with a conflict of interest. A conflict of interest arises when a public servant is in the position of deciding between public duty and private interests. The three most common conflict of interest situations are (1) when the member is …

Nonconforming Uses, aka "Grandfathered Uses" in Zoning

A nonconforming use is generally defined as a land use or structure that was legal when established but does not conform to the standards of the current zoning ordinance. The term “nonconforming use” actually covers several situations, including nonconforming uses, lots and structures.

Preexisting land uses that do not conform to current zoning are not favored. The ultimate goal of zoning is to achieve uniformity of property uses within each zoning district. At the same time, landowners have …

Elements of a Comprehensive Plan

The Elements of a Comprehensive Plan

What does the comprehensive plan contain? In some states the contents of a comprehensive plan are mandated by enabling legislation, while in others the contents are within the discretion of the local government. While every comprehensive plan is unique, in general, all address four topics: (1) existing conditions, (2) goals and objectives, (3) implementation strategies and (4) the future land-use map.

 

Existing conditions

The existing conditions section is an accurate description …

Due Process Considerations in Zoning

The concept of Due Process in the United States flows from the Bill of Rights, as expressed by Amendment V to the U.S. Constitution: “…no person shall be… deprived of life, liberty or property without due process of law…” (emphasis added). This right is re-stated in many state constitutions as well.

The “due process clause” has been vigorously enforced in a long series of court decisions and legislative actions at the state and federal levels which collectively work to limit …

Accessory Uses in Zoning

Generally, zoning ordinances state that landowners may use their land for a principal permitted use and for activities that are accessory to that use. Accessory uses are uses of land that are found on the same parcel as the principal use but are subordinate and incidental. The term “accessory use” also applies to accessory structures. For example, a detached garage may be accessory to the residential use of a property because it reasonably related to the principal use as