St. Mary's Law Journal


Real estate lawyers traditionally focused on the applicable zoning ordinances of the governing municipality. Real estate lawyers also are familiar with applicable subdivision ordinances, which typically impose additional limitations on the use of real property. Subdivision platting was originally envisioned as a procedure to ensure orderly development of property within the jurisdiction of a municipality. Many local land use regulations promulgated in recent years focus on the “environment” and purport to be necessary to conserve and protect natural resources. A complex network of federal and state statutes now exists which regulates the use of real property in order to protect and prevent the degradation of the environment. These statutes restrict land development and uses and impose sanctions for harming the environment and liability for the clean-up of environmental hazards. Many federal, state and local environmental regulatory programs require pre-development evaluation and approvals, as well as pre-operational and operating permits. It is no longer sufficient merely to confirm or obtain appropriate zoning and subdivision environmental permitting schemes in advising developers of real property. The growing and popular attention to the destruction of the natural environment is justifiable from any perspective. Legislators and judges have responded positively to this national sentiment. An initial question is whether such regulation constitutes a taking without compensation. Ambiguities persist for the developer seeking unequivocal answers from its legal counsel. A suggested contemporary land use law requires attorneys to focus at the outset of any real estate development not only on zoning and subdivision regulations, but also on environmental law and policy. Legal advice will necessarily include an analysis of the statutory ambiguities and of the potentially costly proceedings and delays which may result.


St. Mary's University School of Law