Lesson 1: Chapter 20 - Land Use Controls and Property Development

Question 1

Police Power

Answer 1

The states’ inherent authority to create regulations needed to protect the public health, safety, and welfare.

Question 2

Enabling Acts

Answer 2

Through enabling acts, states delegate to counties and local municipalities the authority to enact ordinances in keeping with general laws.

The increasing demands placed on finite natural resources have made it necessary for cities, towns, and villages to increase their limitations on the private use of real estate. There are now controls over noise, air, and water pollution as well as population density.

Question 3

Home-Rule

Answer 3

A home-rule unit of government may exercise any power and perform any function pertaining to its government, including the exercise of police power by way of laws that control the use of land. Home-rule units also have greater freedom to enforce their laws, including the power to jail offenders for up to six months. Non-home-rule units derive their authority to pass land-use controls from the state government through enabling statutes.

If any ordinance of a home rule county conflicts with any ordinance of a home rule municipality, the municipality ordinance prevails. Township zoning ordinances must give way to county zoning ordinances, and townships are not empowered to pass subdivision controls or building codes.

Question 4

Home-Rule In Illinois: Article VII of the Constitution of the State of Illinois

Answer 4

Article VII of the Constitution of the State of Illinois allows for home-rule units of government.

Any municipality with a population in excess of 25,000 and any county that has a chief executive officer elected by the people are automatically home-rule units.

However, a home-rule unit may elect by referendum not to be one. On the other hand, a municipality of fewer than 25,000 people may elect by referendum to become a home-rule unit of government. Townships are not allowed to be home-rule units.

Question 5

Comprehensive Plan

Answer 5

Local governments, municipalities, and counties establish development goals by creating a comprehensive plan.

Also called the master plan - this is not a regulatory document but rather a guide to planning for change rather than reacting to proposals. The plan is usually long term - 20 years or longer, and often includes:

1 - a general plan that can be revised and updated more frequently
2 - plans for specific areas
3 - strategic plans

Question 6

In the Comprehensive Plan, systematic planning for orderly growth consists of the following basic elements:

Answer 6

• Land use - i.e. a determination of how much land may be proposed for residence, industry, business, agriculture, traffic and transit facilities, utilities, community facilities, parks and rec facilities, floodplains and areas of special hazards
• Housing needs of present and anticipated residents
• Movement of people and goods, including highways and public transit, parking facilities, and pedestrian and bike way systems
• Community facilities and utilities such as schools, libraries, hospitals, recreational facilities, fire and police stations, water resources, sewage and waste treatment and disposal, storm drainage, and flood management
• Energy conservation to reduce energy consumption and promote the use of renewable energy sources

Question 7

Zoning Ordinances

Answer 7

Local laws that implement the comprehensive plan and regulate and control the use of land and structures within designated land-use districts. Zoning is a regulatory tool that helps communities regulate and control how land is used.

No nationwide or statewide zoning ordinances exist. Zoning powers are conferred on municipal governments by state enabling acts.

Question 8

Zoning Affects:

Answer 8

• permitted uses of each parcel of land
• lot sizes
• types of permissible structures
• building heights
• setbacks (the minimum distance away from streets or sidewalks that structures may be built
• style and appearance of structures
• density (the ratio of land area to structure area)
• protection of natural resources

Question 9

Planned Unit Development (PUD)

Answer 9

Development where land is set aside for mixed-use purposes, such as residential, commercial, and public areas. Zoning regulations may be modified for PUDs.

Question 10

Buffer Zone

Answer 10

Typically a strip of land separating land dedicated to one use from land dedicated to another use. Some municipalities use buffer zones to ease transition from one use to another. For example, landscaped parks and playgrounds and hiking trails are used to screen residential areas from nonresidential zones.

Question 11

Zoning for Special Land Use Objectives

Answer 11

Many municipalities use certain types of zoning to focus on special land-use objectives. These include:

• Bulk zoning
• Aesthetic zoning
• Incentive zoning

Question 12

Bulk Zoning

Answer 12

Also called “density zoning”, is used to control density and avoid over-crowding by imposing restrictions such as setbacks and maximum building heights, and requiring a specified percentage of open area or by restricting new construction projects

Question 13

Aesthetic Zoning

Answer 13

Used to specify certain types of architecture for new buildings

Question 14

Incentive Zoning

Answer 14

Used to ensure that certain uses are incorporated into developments, such as requiring the street floor of an office building to house retail establishments.

Question 15

Constitutional Issues and Zoning Ordinances

Answer 15

The ongoing question is how a local government can enact zoning ordinances that protect public safety and welfare without violating the constitutional rights of property owners. The government provides “public hearings” for citizens to discuss zoning ordinances before they are enacted.

Question 16

Commonly applied tests in determining the validity of ordinances require that:

Answer 16

• power be exercised in a reasonable manner
• provisions be clear and specific
• ordinances be nondiscriminatory
• ordinances promote public health, safety, and general welfare under the police power concept
• ordinances apply to all property in a similar manner

Question 17

The Concept of Taking

Answer 17

The concept is similar to eminent domain in that it comes from the takings clause of the Fifth Amendment to the U.S. Constitution. The clause reads, “Nor shall private property be taken for public use, without just compensation.” The payment is called “just compensation” - compensation that is just and fair.

In general, no land is exempt from government seizure.

Question 18

Inverse Condemnation

Answer 18

Is an action brought by a property owner seeking just compensation for land taken for a public use where it appears that the taker of the property does not intend to bring eminent domain proceedings. The property is condemned because its use and value have been diminished due to an adjacent property’s public use.

For example, property along a newly constructed highway may be inversely condemned. While, the property itself was not used in constructing the highway, the property value may be significantly diminished due to the nearby construction of the highway. The property owner may bring an inverse condemnation action to be compensated for the loss.

Question 19

Zoning Permits

Answer 19

Compliance with zoning can be monitored by requiring that property owners obtain permits before they begin any development. Zoning permits are usually required before building permits can be issued.

Question 20

Zoning Hearing Board

Answer 20

Also called “boards of appeal”, have been established in most communities to hear complaints about the effects a zoning ordinance may have on specific parcels of property. Petitions for variances or exceptions to the zoning law may be presented to these boards.

Question 21

Nonconforming Use

Answer 21

Frequently, a lot or an improvement does not conform to the zoning law because it existed before the enactment or amendment of the zoning ordinances. Such a nonconforming use may be allowed to continue legally as long as it complies with the regulations governing nonconformities in the local ordinance or until the improvement is destroyed or torn down or the current use is abandoned. If the nonconforming use is allowed to continue indefinitely, it is grandfathered into the new zoning.

Never assume that the existing nonconformities will be allowed to continue - always verify with the local zoning authorities.

Question 22

Conditional-Use Permit

Answer 22

Or “special-use permit” is usually granted to a property owner to allow a special use of property, defined as an allowable conditional use, within that zone, such as a day care center in a residential district.

For a conditional-use permit to be appropriate, the intended use must meet certain standards set by the municipality.

Question 23

Variance

Answer 23

Also called an “exception”, provides relief if zoning regulations deprive an owner of the reasonable use of the property. It may be sought to provide relief if existing zoning regulations create a hardship for the development of a specific property.

For example, if an owner’s lot is level next to a road but slopes steeply 30 feet away from the road, the zoning board may allow a variance so the owner can build closer to the road than setback requirements generally allow.

To qualify, the owner must demonstrate unique circumstances that make the variance necessary. In addition, the owner must prove that she is harmed and burdened by the regulations.

Any such variance is said to “run with the land”, meaning the exception is passed on to any later owners after a change has been made.

Question 24

Building Codes

Answer 24

Most municipalities have enacted ordinances called building codes to specify construction standards that must be met when repairing or erecting buildings.

Building codes set the requirements for kinds of materials and standards of workmanship, sanitary equipment, electrical wiring, fire prevention, and similar issues.

Question 25

Building Permit

Answer 25

In addition to adhering to building codes, a property owner who wants to alter or repair an existing building usually must obtain a building permit.

Through the permit requirement, municipal officials are made aware of new constructions or alterations and can verify compliance with building codes and zoning ordinances.

Question 26

Certificate of Occupancy

Answer 26

Once the completed structure has been inspected and found satisfactory, the municipal inspector issues a certificate of occupancy (also called an “occupancy permit”).

If a building has been converted from another use to residential use or a new home has been constructed, the municipal inspector must ensure that construction complies with relevant ordinances and codes. A certificate of occupancy indicating that the property is suitable for habitation by meeting certain safety and health standards must be issued before anyone moves in and often before a lender will allow closing.

Question 27

Subdivision

Answer 27

Most communities have adopted subdivision and land development ordinances as part of their comprehensive plans. An ordinances includes provisions for submitting and processing subdivision plats. A major advantage of subdivision ordinances is that they encourage flexibility, economy, and ingenuity in the use of land.

Question 28

Subdivider

Answer 28

A subdivider is a person who buys undeveloped acreage and divides it into smaller lots for sale to individuals or developers or for the subdividers own use.

Question 29

Developer

Answer 29

A developer (who also may be a subdivider) improves the land, constructs homes or other buildings on the lots, and sells them. In a new residential subdivision, developers usually pay the costs to provide new water, sewer, streets, curbs, and sidewalks.

Question 30

Regulation of Land Development

Answer 30

No uniform planning and land development legislation affects the entire country. Laws governing subdividing and land planning are controlled by the state and local governing bodies where the land is located.

Question 31

Land Development Plan

Answer 31

Before the actual subdividing can begin, the subdivider must go through the process of land development planning. The plan must comply with the municipality’s comprehensive plan.

Question 32

Plat Map

Answer 32

From the land development and subdivision plans, the subdivider draws plats. A plat map is a detailed map that illustrates the geographic boundaries of individual lots. It shows the blocks, sections, streets, public easements, and monuments in the prospective subdivision.

A plat may also include engineering data and restrictive covenants. The plats must be approved by the municipality before they can be recorded. Once recorded a plat can be used as an adequate legal description of real property.

Question 33

Subdivision Plans

Answer 33

Most subdivisions are laid out by use of lots and blocks. An area of land is designated as a block and the area making up this block is divided into lots. A subdivider usually determines the size as well as location of individual lots, and this issue must be considered carefully because the maximum and minimum lot size is regulated by local ordinances. The land itself has to be studied and additional tests have to be done take advantage of natural drainage and land contours, etc.

Question 34

Impact Fees

Answer 34

Charges made in advance to cover anticipated expenses involving offsite capital improvements such as water and sewer facilities expansion, additional roads, and school expansions.

Question 35

Negatives of Subdivision Development

Answer 35

One negative aspect of subdivision development is the potential for increased tax burdens on all residents, both inside and outside the subdivision. To protect local taxpayers against the costs of a heightened demand for public services, many local governments strictly regulate nearly all aspects of subdivision development and may impose impact fees.

Question 36

Density Zoning

Answer 36

Also called bulk zoning - are ordinances for certain subdivisions, which restrict the average maximum number of houses per acre that may be built within a particular subdivision. For example, a subdivider can build a single-family housing unit at 10,000 SF. This means that the subdivider can build four houses per acre. This average is called gross density.

Question 37

Restrictive Covenants

Answer 37

Limitations to the use of property imposed by a past owner or the current owner and are binding on future grantees.

Question 38

Private Land Use Controls

Answer 38

Not all restrictions on the use of land are imposed by government bodies. Certain restrictions control and maintain the desirable quality and character of a property or subdivision may be created by private entities, including the property owners themselves.

• Restrictive Covenants
• Covenants, Conditions, and Restrictions (CC&Rs)

Question 39

Covenants, Conditions, and Restrictions (CC&Rs)

Answer 39

Private rules set up by the developer that set standards for all the parcels within the defined subdivision. The developers restrictions may be imposed through a covenant in the deed or by a separate recorded declaration.

CC&Rs typically govern the type, height, and size of buildings that an individual owner can erect, as well as land use, architectural style, construction methods, setbacks, and square footage.

They are enforced by the homeowner’s association.

Unlike most deed restrictions, many CC&Rs have time limitations; for example, a restriction might state that it is “effective for a period of 25 years from this date.” After this time it becomes inoperative or it may be extended if approved by the required number of owners.

Question 40

Laches

Answer 40

The legal principal that a right may be lost through undue delay or failure to assert it.

If adjoining lot owners stand idly by while a violation to a private restriction is committed, they can lose the right to an injunction by their inaction through laches.

Question 41

CC&Rs In Illinois

Answer 41

Any restrictive covenant that forbids or restricts conveyance, encumbrance, occupancy, or lease on the basis of race, color, religion, or national origin is void. Exceptions to this section of the Illinois Human Rights Act are allowed for religious and charitable organizations.

Question 42

Interstate Land Sales Full Disclosure Act of 1968

Answer 42

Federal act to facilitate regulation of interstate land sales and to protect consumers from fraud and abuse in the sale or lease of land. The act required land developers to register subdivisions of 100 or more nonexempt lots with HUD and to provide each purchaser with a disclosure document called a property report. The property report contains relevant information about the subdivision and must be delivered to each purchaser before the signing of the contract or agreement.

The report must disclose specific information about the land, including:

• the type of title being transferred to the buyer
• the number of homes currently occupied on the site
• the availability of recreation facilities
• the distance to nearby communities
• utility services and charges
• soil conditions and foundation or construction problems

Under the act, the purchaser has the right to revoke any contract to purchase a regulated lot until midnight on the 7th day after the contract was signed. If the purchaser or lessee does not receive a copy of the property report before signing the purchase contract or lease, she may bring an action to void the contract within two years after signing it.

Question 43

Land Sales Registration Act of 1999

Answer 43

The sale or promotion to Illinois residents of subdivided land located outside of Illinois is regulated by this act. The act regulates the offering, sale, lease or assignment of any improved or unimproved land divided into 25 or more lots and offered as a part of a common promotional plan.

Under this legislation, subdividers must register with the state and file a full disclosure report containing information on the land, location, tax status, financial arrangements, and liens associated with the offering. As in the federal statute, a purchaser who receives the report before signing a contract or agreement may cancel the contract or agreement by giving notice to the seller any time before midnight of the 7th day following the signing of the contract or agreement. A purchaser who does not receive this report before a contract or agreement is signed may cancel the contract or agreement anytime within two years from the date of signing.