Land Use Control

Front 1

Injunction:

Back 1

A remedy imposed by the court ordering a party to cease the conduct of a specific activity

Front 2

Nuisance Per Accidens:

Back 2

An action, occupation or building that becomes a nuisance due to its location or method of operation

Front 3

Nuisance Per Se:

Back 3

An action, occupation or building that is a nuisance at any time & under any condition

Front 4

Private Nuisance:

Back 4

An unlawful use of property interfering w/ the enjoyment of the private rights of an individual or a small number of persons

Front 5

Balancing Test:

Back 5

Court's balancing of an individual's constitutional rights against the state's right to protect its citizens

Front 6

Necessity:

Back 6

A defense to liability for unlawful activity where the conduct is unavoidable & is justified by preventing the injury to life or health

Front 7

Nuisance:

Back 7

An unlawful use of property that interferes w/ the lawful use of another's property

Front 8

Proximate Cause:

Back 8

Something that causes a result in the natural sequence of events w/o which an injury would not have been sustained

Front 9

Temporary Damages:

Back 9

Monetary compensation awarded by the court to a party for injuries sustained as the result of another party's occasional wrongful actions

Front 10

"Coming to the Nuisance":

Back 10

A claim may be weakened when a P moves to the D's established locale

Front 11

Compensatory Damages:

Back 11

Measure of damages necessary to compensate victim for actual injuries suffered

Front 12

Quasi-Dominant Tenement:

Back 12

Property whose owners benefit from the use of another's property

Front 13

Quasi-Servient Tenement:

Back 13

Property that is burdened in some aspect for the benefit of a dominant estate

Front 14

Condemnation:

Back 14

The taking of private property for public use so long as just compensation is paid therefor

Front 15

Dominant Estate:

Back 15

Property whose owners benefit from the use of another's property

Front 16

Servient Estate:

Back 16

Property that is burdened in some aspect for the benefit of a dominant estate

Front 17

Assignable:

Back 17

Capable of being transferred or conveyed

Front 18

Appurtenant:

Back 18

A burden attached to real property that either benefits or burdens the owner's right to utilize that property

Front 19

Right-of-Way:

Back 19

The right of a party to pass over the property of another

Front 20

Taking:

Back 20

A Gov. action that substantially deprives an owner of the use & enjoyment of his or her property, requires compensation

Front 21

Covenant:

Back 21

A written promise to do, or to refrain from doing, a particular activity

Front 22

Divers Mesne Conveyance:

Back 22

A conveyance falling b/w the original owner & the present owner in the chain of title

Front 23

Owner in Fee:

Back 23

An owner of an absolute & unlimited interest in property

Front 24

Title Abstract:

Back 24

Summary of the history of a title to property

Front 25

Judicial Sale:

Back 25

A sale of property by a sheriff pursuant to a judgment

Front 26

Privity of Estate:

Back 26

Common or successive relation to the same right in property

Front 27

"Run w/ the Land":

Back 27

Covenants that are binding on successor in interest to the property to which they are attached

Front 28

Changed Conditions:

Back 28

A defense to a claim of ameliorative waste, based on the theory that a change in the surrounding area warranted the alterations to the property

Front 29

Perfect Title:

Back 29

Total right of possession & disposition over particular property

Front 30

Covenants, Conditions, & Restrictions (CC&Rs):

Back 30

That residents of a condo development agree to abide by when they take ownership of a unit in that development

Front 31

Declaratory Relief:

Back 31

A judgment of the court established the rights of the parties

Front 32

Business Judgment Rule:

Back 32

Doctrine relieving corporate directors &/or officers from liability for decisions honestly & rationally made in the corporation's best interests

Front 33

Blanket Prohibition:

Back 33

A prohibition that is absolute

Front 34

Arbitration & Capricious Standard:

Back 34

Standard imposed in reviewing the decision of an agency or court when the decision may have been made in disregard of the facts or law

Front 35

Euclidean Zoning:

Back 35

A zoning scheme whereby zoning districts are established based on the uses permitted pursuant to local ordinance

Front 36

Just Compensation:

Back 36

The right guaranteed by the 5th Amendment of a person, when his property is taken for public use by the state, to receive adequate compensation in order to restore him to the position he enjoyed prior to the appropriation

Front 37

Kohler Act:

Back 37

Legislation passed in 1921 that prohibited the mining of coal that would cause the caving in, collapse, or subsidence of a number of specific structures or public facilities

Front 38

Regulatory Taking:

Back 38

A governmental action that substantially deprives an owner of the use & enjoyment of his property, whereby the application of a law or regulation deprives the owner of economically viable use of his property, requiring compensation

Front 39

Sic Utere Tuo Alienum Non Laedas:

Back 39

One should use one's own property in such a way as not to injure the property of another

Front 40

Intentional:

Back 40

Liable when his conduct is unreasonable under the circumstances of the particular case

Front 41

Unintentional:

Back 41

Liable when his conduct is negligent, reckless, or ultra hazardous

Front 42

Elements of Unreasonable Interference:

Back 42

(1) Unreasonably interfered w/ P's use or enjoyment of a protected possessory right
(2) Substantially interfered
(3) W/ P's use or enjoyment of a protected possessory right

Front 43

RST Elements:

Back 43

(1) The gravity of the harm caused outweighs the utility of actor's conduct, or
(2) if the harm caused by the conduct is serious & the financial burden of compensating for this & similar harm to others would make the continuation of the conduct not feasible

Front 44

Lateral Support:

Back 44

Refers to that provided to 1 piece of land by the parcels of land surrounding it
-Imposes duty of neighboring land to provide support would need & receive under natural conditions
-Liability is absolute

Front 45

Subjacent Support:

Back 45

Refers to support from underneath as opposed to the sides
-Same duty as Lateral
-Duty arises when 1 person owns surface rights & another owns some kind of subsurface rights (mineral interests)

Front 46

Private Nuisance:

Back 46

Affects a single individual or a definite small # of persons in the use & enjoyment of their private rights tot he land not common to the public
-Only owners of interest in land can bring suit

Front 47

Public Nuisance:

Back 47

Affects the rights enjoyed by citizens as a part of the public
-Nuisance must affect a considerable # of people or an entire community or neighborhood
-Must be a danger to health
-Can only be by Affected people shown by special injury

Front 48

Special Injury:

Back 48

Injury of damage of a kind different from that suffered by other members of the public

Front 49

Danger to Health:

Back 49

Any condition or place in populous areas which constitute a breeding place for flies, rodents, mosquitos, & other insects which are capable of carrying & transmitting disease-causing organisms to any person or persons

Front 50

4 Rules to Resolve Nuisance:

Back 50

(1) Abate the activity in question by granting P injunctive relief
(2) Let the activity continue if the D pays damages
(3) Let the activity continue by denying all relief
(4) Abate the activity if the P pays damages

Front 51

Types of Private Land Controls:

Back 51

(1) A is given rt. to enter upon B's land
(2) Profit
(3) Homeowners Assign Restrictions
(4) A is given the rt. to require B to do something to B's land
(5) Pay Monthly Dues

Front 52

2 Types of Easements:

Back 52

1. Affirmative Easements
2. Negative Easements

Front 53

1. Affirmative Easements:

Back 53

Allows someone to do something, a specific purpose, to the servient parcel (part of the land that someone comes onto)

Front 54

2. Negative Easements:

Back 54

A restriction on the servient parcel
-Allows someone to servient another from doing something w/ servient parcel
-Generally limited to: light, air, bldg support, artificial stream flow

Front 55

Implied Easements:

Back 55

Implied from prior use when the use was in place at a time a single parcel of land was divided into 2 parcels
-If reasonable parties would have found an easement had they discussed the issue

Front 56

Implied Easement Elements:

Back 56

(1) Unity of Ownership
(2) The use was in place before the parcel was served
(3) The use was visible or apparent
(4) The easement is necessary for the enjoyment of the dominant estate (necessity)

Front 57

Necessity:

Back 57

"Right of Way"
-Usually used in landlocked property cases

Front 58

Necessity Elements:

Back 58

(1) Unity of ownership
(2) Necessity for egress & ingress existed at the time of severance
(3) The easement is strictly necessary (For effective use) for egress & ingress to the landlocked parcel

Front 59

Prescription:

Back 59

Been adversely doing it continuously & long enough to create an easement
-Similar to adverse possession
-Negative Easements CANNOT be prescribed

Front 60

Prescription Elements:

Back 60

(1) Actual Use
(2) Open & Notorious
(3) Hostile
(4) Continuous & Uninterrupted
(5) Exclusive
(6) For the Statutory Proscribed Period

Front 61

Scope of Easement:

Back 61

The extent of use an easement holder may make on the servient estate

Front 62

Scope of Easement Elements:

Back 62

(1) Location
(2) Intensity of Use
(3) No Benefit
(4) Improvements, Maintenance, & Repair

Front 63

(1) Location:

Back 63

The easement must be located & described in the grant any use outside of what is expressly provided is trespass
-Implied easements are limited to the prior uses
-CANNOT be changed or moved unless both parties consent

Front 64

(2) Intensity of Use:

Back 64

The easement holder can use the easement for w/e he is authorized to so long as he does not overburden the servient estate

Front 65

(3) No Benefit:

Back 65

On non-dominant party allowed

Front 66

(4) Improvements, Maintenance, & Repair:

Back 66

Easement holder has the right to repair so long as they do not unreasonably interfere w/ the servient estate
-Easement holder also has a duty to repair any damages it has caused to the servient estate

Front 67

Easement Termination:

Back 67

(1) Property is Destroyed
(2) Set Term Expires
(3) Properly Revoked (Breach in Original Agreement)
(4) Use of Easement Abandoned
(5) Use of Easement Forfeited
(6) Original Necessity No Longer Exists
(7) Merger of the Dominant/Servient Parcels

Front 68

Real Covenant Elements:

Back 68

(1) Intent to bind successors
(2) Touch & concern the land
(3) Privity of estate

Front 69

Horizontal Privity:

Back 69

Refers to the necessary relationship b/w the original parties to the covenant to run w/ the land
-Created only when there is an interest in land transferred

Front 70

Vertical Privity:

Back 70

Refers to the relationship b/w an original party & those subsequent purchasers tracing their interest in the benefited or burdened property back to the original parties
-Original covenant must convey ENTIRE interest to subsequent purchaser
-Required possessory interest

Front 71

Equitable Servitude Elements:

Back 71

(1) Intent to bind successors
(2) Touch & concern land
(3) Notice

Front 72

Termination of Covenants/Servitudes:

Back 72

-By terms of covenant
-Merger
-Release
-Rescission
-Unclean Hands
-Acquiescence
-Abandonment
-Changed Conditions

Front 73

Zoning Police Power:

Back 73

Founded on the right of the state to protect its citizens, to provide for their health, safety, & welfare & progress & to insure the good of society

Front 74

Foundation of Modern City Planning:

Back 74

(1) Separation of Uses
(2) Protection of the Single-Family Home
(3) Low-Rise Development
(4) Medium-Density of Population

Front 75

Euclidean Zoning:

Back 75

Districts are graded from "Highest" (Single-Family residences) to "Lowest" (Worst Kind of Industry)
-Uses permitted in each district are cumulative
-Higher uses are permitted in areas zoned for lower uses but not vice versa

Front 76

Structure of Zoning Authority:

Back 76

a. Enabling Legislation
b. The Comprehensive Plan

Front 77

a. Enabling Legislation:

Back 77

Standard state zoning enabling act empowers municipalities to regulate & restrict the height, # of stories, & size of bldgs & other structures, the % of lot that may be occupied, the size of yds, courts, & other open spaces, the density of population, & the location & use of bldgs, structures & land for trade, industry, residence, or other purposes
-Must be in accordance w/ a comprehensive plan

Front 78

b. The Comprehensive Plan:

Back 78

A statement of the local gov's objectives & standards for development based on surveys & studies of the city's present situation & future needs

Front 79

The Nonconforming Use:

Back 79

If a business existed prior to the enacting of an ordinance that construes the business nonconforming, the city cannot force the business to move

Front 80

Variance:

Back 80

The ability of the general zoning ordinance to make adjustments to grant relief from the zoning ordinance b/c of practical difficulty or UNNECESSARY HARDSHIP
-Most are done by a board of adjustment

Front 81

Unnecessary Hardship:

Back 81

-Must not be self-created
-No variance can result in substantial detriment to public health, safety or welfare
-No variance can result in a substantial departure from the comprehensive plan

Front 82

Special Exceptions:

Back 82

Allows a board of adjustment to permit certain uses if special conditions are met
-Certain uses can coexist w/ other uses if specific conditions are met
-NOT based on hardship, therefore, NOT a variance

Front 83

Consonant:

Back 83

Having agreement or in line w/ something
"It would be consonant w/ the interest of my client..."

Front 84

Zoning Amendments:

Back 84

Local zoning boards, like municipalities, have NO inherent authority to regulate the use of private property
-Power to regulate must be delegated w/ specific guidelines & restrictions so that the authority will retain & will NOT be left to the purely arbitrary discretion of the administrator

Front 85

Spot Zoning:

Back 85

A label applied to certain zoning amendments invalidated as legislative acts unsupported by any rational basis related to promoting public welfare
-Applies to zoning changes

Front 86

Zoning Tests:

Back 86

a. Rational Basis Test
b. Substantial Evidence Test
c. Strict Scrutiny Test

Front 87

a. Rational Basis Test:

Back 87

As a legislative act, a zoning or re-zoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare, or that the classification amts. to the taking w/o compensations
-Applies regardless of the size of the tract of land involved

Front 88

b. Substantial Evidence Test:

Back 88

You must have substantial evidence to support the decision to re-zone
-Midway b/w rational & strict

Front 89

c. Strict Scrutiny Test:

Back 89

Strike down re-zoning classification request unless there is a compelling governmental interest to support based upon substantial evidence

Front 90

Public Use:

Back 90

Government cannot take private land & give it to private individuals, the use must be public or for the public's benefit

Front 91

Exactions:

Back 91

Where the government limits uses in order to obtain permits

Front 92

"Rough Proportionality" Test:

Back 92

No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication [exaction] is related both in nature & extent to the impact of the proposed development

Front 93

Exaction Elements:

Back 93

(1) The condition is SUBSTANTIALLY RELATED to the government's VALID REGULATORY OBJECTIVE
(2) The nature & scope of the condition must be roughly proportional to the impact of the proposed development