Public Restrictions on Ownership
Taxation
Property Tax - An ad valorem tax (i.e., based upon the value of the property)
In many states, property taxes are expressed in millage rates, or dollars per $1,000 of value (in Texas, it is expressed as a percentage of value)
Some portion of the property's value may be exempt from taxation (often, residences of the property owner). In Texas, the claiming of "homestead" limits the increase in taxes that can occur from one year to the next to 10%.
All property owners are identified by property records kept at the county courthouse. Property values are estimated by the local appraisal district (county). Tax rates are determined by considering the budget for the year less all other estimated sources of income. The shortfall in the budget is then divided by the total value of all taxable properties within the taxing jurisdiction. The proposed taxable value and tax amount is billed and collected. In Texas, property owners are notified of the proposed appraised values and the tax amount. The owner has a period of time in which to file a formal protest of the proposed appraisal value. For a small fee (around $7), some counties will provide a list of "comparables" for comparison purposes. If the owner files a formal protest, they will initially meet with an employee of the appraisal district. If the owner and appraisal district employee are unable to reach an agreement on the value of the property, a meeting with the appraisal district board (comprised of citizens) is scheduled. At the meeting, the property owner presents his/her evidence for what they believe is an appropriate value. The appraisal district will have a representative to present the district's evidence of the fair value of the property. The board will make a judgment as to what the value should be based upon the evidence and their experience. Pictures/videos of the comparables as well as the property is excellent evidence that the appraisal district will not produce.
Escheat - The power of escheat is the ability of government to acquire ownership of property when the owner dies without a will or living relatives.
Eminent domain - The power of eminent domain gives the government the ability to acquire private property for the good of the public, even if the owner does not want to sell.
- Use must be a valid public use
- Property owner must be compensated fairly
- Property owner has the right to a cause of action (lawsuit) if he/she has suffered a loss in value due to government regulation. Inverse condemnation is when a property owner sues to force the government to buy the property because of government action that has devalued the property
Police Power - the government has the power to regulate the use of private property in order to protect public health, safety, morals and general welfare
- Land uses are interdependent. Since land cannot be moved, the manner in which one property is used impacts nearby properties. Land use measures are designed to protect neighboring properties (Regulations regarding XXX Video stores, topless bars near I-35/Loop 410 in the Windcrest area are in dispute currently)
- Comprehensive Development Plans are formulated by government in order to manage development and use in urban areas. Such plans will include
Analysis of projected economic development (drainage, environmental including aquifer assessment)
Transportation plan
Public facilities plan for schools, parks, civic centers, water, sewage, etc. (Recent report that developers in San Antonio have elected to pay fees rather than include park areas within developments)
Land-use plan
Official map
Comprehensive Development Plans are implemented through zoning laws, building codes, impact fees and ordinances. These include:
- Zoning - regulates the use of the land (type, density)
Type of use - residential (housing - single-family, multi-family), commercial, industrial, agricultural, historic, flood plain
Height and bulk limitations, or ratio of floor area to surface area (percentage that can be covered, particularly within the aquifer recharge zone - often referred to as "intensity" of use)
Minimum lot size and setback (distance from street); distance from property line
Zoning changes are administered through legislative, administrative or judicial means
- Legislative relief - property owner applies for a change in zoning through local zoning authority (city council or county commission). Nearby property owners are notified and public hearings are held. Property owner must present justification.
- Administrative relief - for minor changes, such as through a "variance". For example, zoning laws may restrict construction within ten feet of property line and the property owner may desire an addition that requires building within eight feet.
- Judicial relief - requires a lawsuit in which the property owner must claim that the restriction is unconstitutional, or that the owner was deprived without due process because the decision was arbitrary, unreasonable or capricious.
Nonconforming Use - a continuing use that was legal before a zoning ordinance was passed. Generally, these situations are "grandfathered", at least for a period of time.
- Building codes - establish standards for construction of new buildings and alteration of existing buildings in order to protect health and safety, including fire prevention, quality and safety, promotion of energy conservation (water conservation in San Antonio with toilets). Building permits required in advance.
- Subdivision regulations - establish standards and procedures for regulating subdivision of land for development.
Preapplication conference - allows developer to meet with planning board before preparing a formal plat.
Approval of preliminary plat - detailed information regarding topography, boundary lines, utilities, streets, easements, lot lines and numbers, etc.
Approval of the final plat - contains exact details of lot lines, utility easements, etc., as prepared by engineers and surveyors and is recorded with the county. Developer may then begin to sell lots.
Mandatory Dedication - developer must dedicate parts of the property for streets, utilities, parks, schools, open space, etc., for public use.
Impact Fees - required fees on new development to help pay for the expansion of public facilities, such as water lines (connections fees), electricity, etc.
Innovative Land-use Control Methods - means of controlling the use of land beyond zoning laws and ordinances
Planned unit development (PUD) - trade-offs between zoning restrictions in exchange for advantages to the public (smaller setbacks, but more open space)
Performance (or impact) zoning - relates permitted uses of land to certain performance standards, usually to protect the environment.
Incentive zoning - similar to performance zoning, it is used to encourage developers to provide publicly desired aspects, such as revitalizing inner city neighborhoods, restoring historic districts, etc.
Transfer of development rights - the ability to transfer part of the rights attached to property. For example, companies can sell their pollution "rights" to other companies.