A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective

4 Michigan Journal of Environmental & Administrative Law 303 (2015)

Chapman University, Fowler Law Research Paper No. 15-15

40 Pages Posted: 12 Jun 2015 Last revised: 13 Oct 2015

Donald J. Kochan

Chapman University, The Dale E. Fowler School of Law

Date Written: June 11, 2015

Abstract

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.

Keywords: land use, property, regulation, nuisance, trespass, servitudes, real covenants, agencies, administrative law, public land use regulation, zoning, eminent domain, coal bed methane

JEL Classification: A10, A11, A12, A13, D60, D61, D62, H10, H11, K10, K11, K32. L50, L51, O33

Suggested Citation

Kochan, Donald J., A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective (June 11, 2015). 4 Michigan Journal of Environmental & Administrative Law 303 (2015); Chapman University, Fowler Law Research Paper No. 15-15. Available at SSRN: https://ssrn.com/abstract=2617386

Donald J. Kochan (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)

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