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A Quick Review on Land Use Law

This is a rooftop garden in Greenpoint, Brooklyn (Eagle Street) that I have a major farm-crush on. Land use and zoning are big concerns for urban and suburban agriculture.

I have enjoyed reading through the Harvard Law School’s Food Law & Policy Clinic’s publication titled “Good Laws, Good Food:  Putting Local Food Policy to Work for Our Communities.”  Section III (beginning on page 30) does a nice job giving a cursory overview of land use law.

As the article correctly states, the authority to regulate land use is derived from state’s delegated police power (i.e., the power to make laws necessary and proper to preserve public security, order, health, morality and justice). According to the publication, local governments may promulgate  land use regulations under its police power in the following four areas:

(1) Type of Use (e.g., agricultural);

(2)  Density of Use (e.g., height, wide);

(3)  Aesthetic Impact of Use (e.g., design and placement of structures on the land); and,

(4)  Effect of use on the community’s cultural and social values.

Although overlapping with social values, I would also like to add that some zoning regulations also impose divisibility restrictions as it applies to agricultural land.  In order for land use regulations to be valid under the police power:

(1)  it must be for a public purpose,

(2)  through means reasonably tailored to those purposes, and,

(3)  in a manner that does not impose excessive costs on individuals.

If required by the state, local government must engage in a formal planning process where it must promulgate a comprehensive plan (aka “master plan”) establishing the goals and purposes of land use regulation.  Zoning ordinances are established pursuant to the comprehensive plan.   Zoning codes, for example, might prohibit commercial agriculture in residential zones.

Thirsty for more information on land use law as it applies to agriculture?  I encourage you to review the rest of the publication.  Although the purpose of the publication is to educate local food councils with lobbying efforts, I think that it is clearly written and gives an excellent overview of several fundamental building blocks for all food and agriculture organizations.

"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."

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