Unusual Land Use

Land use does not always conform strictly to traditional uses such as residential homes, retail establishments, farms, etc. The erection of cellular towers, creation of waste disposal sites, and construction of recreational use structures, for instance, do not fit neatly within the dynamics of traditional land use. The regulation of these “unusual” uses can take place at all levels of government.

The enactment of the Telecommunications Act of 1996 provided a level of protection to those seeking to erect a cellular tower by limiting the regulatory power of state and local governments. The Act basically provides that state and local governments cannot unreasonably discriminate among wireless providers in the construction, placement, and modification of cellular towers. Further, state and local government regulations cannot prohibit the provision of personal wireless services. The Act also contains due process mandates requiring that requests to place, construct, or modify a cellular tower must be addressed within a reasonable time and denials must be in writing and supported by substantial evidence.

With the advent of the Solid Waste Disposal Act, the Clean Air Act of 1970, and the Resource Conservation and Recovery Act (RCRA), the federal government has effectively regulated waste disposal sites. The Environmental Protection agency is charged with the enforcement and administration of the RCRA, while the individual states are responsible for implementing an approved waste disposal plan. Landfills must comply with the RCRA’s standards for location and operation. Additionally, states have instituted their own permitting process for landfills in addition to enacting zoning regulations specifically identifying areas that can or cannot be the home of a landfill or waste disposal site.

Land use for recreational purposes can take on an almost infinite variety of activities. Zoning ordinances typically identify recreational uses that are permitted, prohibited, or incidental to a permitted predominant use of the land. A prohibited recreational use is subject to a constitutional challenge unless it is identified in the pertinent zoning ordinance and is in furtherance of the public’s health, safety, and welfare.

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