Land Use: A Legal and Political Matter

By Jim Cavilia, Allison MacKenzie, Ltd.

Private property rights are among the most fundamental of rights in the United States.  Private property ownership is central to the “American Way” and was a crucial part of our Founding Fathers’ inspired vision.  Despite the importance of property rights to our heritage as citizens of this great country, those rights are not absolute.  An individual’s right to use her real property as she wishes must be balanced with how that use impacts neighboring property owners and society as a whole.  Generally, this balancing act is conducted by local government officials.

Within the framework of Nevada’s land use statutes, the local elected body (County Commission, City Council or Board of Supervisors) with the assistance of an appointed Planning Commission is charged with the responsibility of determining the compatibility of various land uses in relation to one another.  This sort of local land use and zoning decision is a strange hybrid of a legal and a political decision.  The decisions are legal in the sense that the decisions cannot be made arbitrarily or in such a way that so restricts a property owner’s use of the property that it amounts to a constitutionally prohibited “taking.”  These decisions, however, are not purely legal like the action of a court, as the elected officials should properly consider the local sentiment as well as the compatibility of a particular use with current and historic uses of land in the geographic area.

Like any of our fundamental rights, including free speech and the exercise of religion, our private property rights are not absolute.  Any planned use of real property must be considered in relation to its impact on neighboring land uses as well as its impact on the community generally.  When preparing to have a particular land use matter considered, whether it is a special use permit for a commercial activity or a zone change to allow a previously prohibited use, it is imperative to approach the process as both a legal matter and a political matter.  No matter how righteous and “legal” the proposed project or use is, ignoring the political realities of the local community will often result in a negative response from the elected body which will force the property owner to consider the very dubious and costly option of litigation.

If you have any questions or are interested in speaking with me about land use, please feel free to E-mail me at [email protected].