Zoning and Eminent Domain - Research Paper Example

College: Zoning and Eminent Domain Introduction It is a major assumption that private property belongs to an individual and the rights to develop the property remain exclusive with the registered owner. Further, people assume that the private property owner has rights to admit or expunge away any encroachment of the property by any party. These exclusive rights seen to be enjoyed by individual property owners are bestowed on them by the local or regional governing body. The governing bodies like municipalities, local, state and federal governments are responsible for allocating, issuing private property ownership documents and authorizing the uses of such properties. The most valuable private property is land, which acts as the harbor for other properties like water and air. While private property remains an individual’s domain to exercise their use, it is within the powers of the governing bodies that allocate the private properties’ ownership and use to regulate the excesses of utilization of the property. It is also within the governing bodies’ power to give or take away the ownership albeit in a legal manner that can prove the eligibility and legality of the exercise. Differences between Zoning and Eminent Domain Zoning and eminent domain are two procedures that pertain to private property ownership and use contained within the powers of the private property owner and the governing body. The two processes signify the shift of exclusive powers of ownership and use of private property from the individual to the governing bodies. However, the two processes differ. Zoning is a process used to show the extent of governing bodies’ exclusive powers on private property use while eminent domain shows the governing bodies’ extent use of its powers on private property ownership. Zoning is defined as the regulation that defines the use of private property based on its location. It is the separation, division, and creating zones of property use especially land by local government. The process divides a given piece of locality into sections of real property use based on the size, location, fitness and character (Lai 17). The process create different zones of land use which includes areas of residential, industrial, and commercial, and other major uses. Zoning separates property use purposes that are deemed incompatible with each other, for example, residential, commercial and industrial property uses (Lai xv). However, zoning may face difficulties due to contestations from property owners, which may derail the process. To ensure that governments contain these situations, local governments develop master plans that detail the intended property use. Additionally, local governments develop necessary regulations and laws to combat the inevitabilities emanating from the contested separation of private property. Many of the regulations and laws regulate the general characteristics of developments like the height of buildings, number of certain public facilities like shops, and other major characteristics that may define a zone. Zoning allows the local governments, planners and other bodies involved in development of cities and towns to control the development, population density of areas relative to the area’s location and access to facilities, preserve natural environment and create healthy and attractive areas (Lai 19). In addition, the controlled development of property allows the local governments to provide areas for public facilities like schools, hospitals, playing fields and other facilities that help the public. Zoning is an important aspect of development plans for local governments as it allows the government to estimate and plan for useful services like sewerage system, water supply, roads, lightning and other public services provision infrastructures. Due to the fixed nature of property developments, revisions of the proposed development plans are rare, which assures the individual property owners of future sustainability and stable property uses. The local government uses power vested in it by the supreme government in form of statutes or constitutional provisions. When the local governments are granted the powers, they develop ordinances that regulate the property use (Crocker 939). Zoning is a delicate process as it requires the local governments to consider the future prospects of property uses. The development plans must factor numerous considerations that include future development and growth of an area, optimal property uses, adequate public infrastructures like drainage, sewerage, roads and lighting among other many factors. Despite the provision that zoning should not provide for private interests, local governments have the powers to do spot zoning. Spot zoning is the preferential treatment of a specific property in regards to different use, which is different from other adjoining properties. This is only probable if the administration can prove beyond doubts that that are reasons for the preferential treatment of the particular property. This is because of the violation of the development plan that is used to allocate property uses. However, despite the ordinances, laws and regulations that define zoning, property owners contest zoning regulations due to violation of preferred property uses. When property owners contest the zoning plan, a special body listens to their appeals in order to justify or refute their claims. Zoning regulations and laws include requirements to provide building plans for certification and certificates of ownership. Zoning has received widespread condemnation from certain areas as it is seen as a source of racial profiling (Rothwell & Massey 779). From another point of view, eminent domain is a process that uses governing bodies’ power to contest the rights of private property ownership. In numerous nations, private property that includes land, air, and water are the exclusive properties of the government and it has the powers to delegate development powers to an individual through giving ownership. However, the government has the right to repossess the property on basis of public use benefits. Thus, the exclusive rights of property ownership are transferred from the individual to the government with the individual acting as a temporary owner. The repossession of a property calls for just compensation of the individual by the repossessing power as provided for in the laws of many countries (Timmons and Womack 44). Eminent domain processes follow a procedure that includes identification of the land and its potential public use benefits. Once the property is assessed, the owner is compensated and asked to vacate the land. However, processes of repossession may be met by defiance, which forces the governing bodies to use powers like the police force. The governing bodies also face law injunctions where private property owners move to courts to contest the decisions (Timmons and Womack 46). Eminent domain processes follow the laws regulating such acquisitions and the individual is entitled to a fair hearing. Property is repossessed for purposes of public use only, although sometimes, repossessed properties have been given to other private organizations, which are deemed necessary and fit to increase the output of the property to boost its public utilization. Public use includes building of roads, public utilities like parks and recreation centers, army installations, and government buildings among many other uses. The justification of public use as the main factor that necessitates repossession of private property rests on the interpretation of the law courts (Timmons and Womack 45). However, the term public use has been used controversially since the proposition of eminent domain. While some judges have looked at the number of people to benefit from use of the property, some have extended the public use meaning to use by private companies in the economic benefits that the company gives to the public. For example, in the Kelo Case where the courts passed the eviction of a group of working class home owners for the purpose of allocating the land to a private company. Consequently, the state used police power to evict the people (Main 3-4). These broad definitions have attracted widespread outcries from the private owners and the public (Timmons and Womack 46-47). Element domain requires the government to compensate the property owners in a just manner. However, the establishment of just compensation lies with the interpretation of the courts (Timmons and Womack 46). The compensation factors in aspects of the fair market cost of the assets at the time of annexation. When a property is earmarked for government acquisition, the state initiates condemnation proceedings, which the owner must attend. The proceedings involve establishment of a repossession contract and establishment of a fair compensation. The government explains to the owner the rights to such properties, while giving the owner the rights to argue their case. In many instances, owners may contest the repossession, which is almost impossible to win. Proceedings differ based on the type of use the government requires the repossessed property for, for example, roads, parks, or general public infrastructures. In some cases repossession is fast, especially in properties required for public infrastructural use (Timmons and Womack 46). In many cases, the government may accidentally, incidentally or purposely use a property without due condemnation proceedings, for example, when government directs floods to properties, and piling of debris from roads construction among others. In such cases, property owners may file inverse condemnations, which seek compensation due to repossession and use of property without notice. Eminent domain processes and court procedures, especially in relation to interpretation of laws has attracted a lot of condemnation from many quarters (Timmons and Womack 48). Conclusion While zoning and eminent domain processes deal with the relationship between private and government property ownership and the rights to such properties, the two are different processes. Zoning is the separation of property uses through the local governments powers, vested on it by the supreme government. Zoning caters for the development, growth and proper property use through comprehensive plans. Ordinances and regulations that pertain to different uses of properties are used in the zoning process. On the other hand, eminent domain deals exclusively with ownership of property and exclusive rights of use of the property by the government. Eminent domain processes revolve around repossession of private property by the government for the interests of the public. Eminent domain process follows court procedures in establishing the rights of the government to the property, as well as, the compensation amount to be awarded to the private property owners. Works cited Timmons, Douglas and Womack, Lara. Eminent Domain or Domination? Real Estates Issues, 24.4, (2000): 44-52. Main, Carla. How Eminent Domain Ran Amok. Policy Review, 133(2005): 3-24. Crocker, Karen. Vested Rights and Zoning: Avoiding All-or-Nothing Benefits. Boston College Law Review, 43(2002): 936-972. Lai, Lawrence. Zoning and Property Rights, 2nd Edition: A Hong Kong Case Study: Aberdeen, Hong Kong University Press, 1998. Print. Rothwell, Jonathan & Massey, Douglas. The Effect of Density Zoning On Racial Segregation in U.S. Urban Areas. Urban Affairs Review, 4.6: 779-806 Read More