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Constitutional Derivation and Statutory Exercise of Land Use Control Powers

Michael D. White, Proceedings of 21st Annual Rocky Mountain Mineral Law Institute (1975)

Governmental land use controls have always been controversial. Since the first public nuisance ordinances appeared centuries ago, landowners have fought governmental restrictions on the use of their private property. During the last sixty years, however, land use regulations (zoning, subdivision regulations, building codes, etc.) have been upheld by the judiciary with increasing regularity, except insofar as more personal constitutional rights, such as the right to travel, are involved.

Until the mid-1960's when the environmental movement began to gather popular momentum, governmental control of land use was exercised primarily at the local level. Because of inaction on environmental matters by most local and state governments, the federal government stepped into the void by enacting substantial environmental legislation such as the National Environmental Policy Act of 1969,1 the Federal Water Pollution Control Act Amendments of 1972,2 and the Clean Air Act of 1970.3 More recently, state and local governments also have now begun to respond to environmental concerns [658] and have done so even more aggressively than the federal government.

Within the last two or three years, however, the national need to more fully develop our mineral resources, particularly energy resources, has come into direct conflict with such state and local legislation intended to prote