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30 Cards in this Set

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Define zoning?
A complex maze of ordinances, regulations, and statutes that restrict the use of land
What is a state's justification for zoning?
i. Police power is the source of the right – the inherit power to promote the public health, safety, welfare, and morals.
ii. How far can the police power extend? In Euclid, this was answered by analogizing to nuisance law; a nuisance may be merely a right thing in the wrong place – like a pig in the parlor instead of the barnyard.
iii. Questionable policy: why exclude duplexes from the single family residential zones? Is there serious justification that a duplex is a nuisance?
How do you analyze a zoning problem?
i. An ordinance is presumed constitutional.
ii. To survive a substantive due process & equal protection challenge, a zoning ordinance must reasonably related to public:
1. health
2. safety
3. morals and
4. welfare
What are the 3 kinds of districts in zoning?
1. Use: what lots can be used for.
2. Height: of buildings
3. Area: lot size
U-H-A
What are some of the purposes behind zoning?
attract industry, repel industry, curtail demands for increases in spending by local government, increase real property tax revenues, slow the rate of growth, encourage an efficient pattern of land uses in the community, attractive pattern of land uses in the community, discourage development of areas with unique public benefit, flood control, & protection of water resources by filtering pollutants. Beauty is a likely legitimate purpose as well
Explain the scope of a planning board's discretionary authority
iii. The scope of a planning board's discretionary authority to approve or reject a subdivision plan is quite broad, and it may require an applicant's plan to conform with conditions favorable to health, safety, convenience, or prosperity.

iv. However, when an applicant meets all requirements, plat approval is a ministerial act and a planning commission has no discretion in approving
Explain Euclidean Zoning
This is cumulative zoning. The relationship between uses resembles a pyramid. At the top of the pyramid is a zone that only allows one use (Use 1). The next zone could allow use 1 and use 2, and the next zone would be U1, U2, U3
What is spot zoning?
An ordinance allowing a deviation from a district's general restrictions for an individual's plot. An ordinance excepting a parcel from a comprehensive plan will be invalidated when the parcel's owner, but not the general community, is benefitted
What are floating zones?
A zone is established but not mapped. The zone is said to "float" over the entire community.
1. A landowner may request that the zone be applied to his land.
2. If the request is approved, the zone becomes anchored to a particular parcel.

Some courts are ok with it and some aren't
What are PUDs?
Planned Unit Developments:
this is common, and it is the antithesis of Euclidean zoning. It mixes several types of land uses on lots of varied sizes and shapes, free from traditional requirements of yards and set backs of buildings from streets and lot boundaries, so long as the developer’s plan for the entire tract satisfied general requirements and was approved by the planning board. A well PUD places specifications and conditions that must be met. These are often upheld. It is simply an expansion of cluster zoning to include non-residential uses
What is contract zoning?
zoning will be amended, but as a part of that there is a K or covenant running with the land that only this kind of use is allowed, and other restrictions on it. Some courts will not allow it, but other say you just need a good reason. This is just another way of spot zoning
What is official maps system?
It concerns the reservation of land for public acquisition.
a. Provided the statute allows a permit to be granted if the applicant would be substantially damaged by its denial, an exercise of the police power, pursuant to an Official Map Law, does not constitute a taking without compensation.
b. Map ordinance is useable if they can show that there isn’t too much of an impact.
c. Other states still will not allow it
What is the definition of a nonconforming right?
A use that was legally in place at the time the municipality enacted legislation prohibiting the use. This results because zoning can only regulate future development.
Historically, the nonconforming use could only be ended by destruction, and regulated by not allowing it to expand
How can nonconforming uses be regulated?
i. An ordinance can bar the expansion of a nonconforming use.
ii. They can regulate the hours (but only to what they had operated as to before).
iii. The nonconforming use cannot be transformed into a different nonconforming use.
iv. If major alterations or structural repair will extend the duration of the use, then it can not be made.
v. The above ideas were meant to gradually get rid of the use. However, it resulted in the use gaining success do to no other competition. Because of this, they started using amortization
How can nonconforming uses be terminated?
Abandonment/Destruction (not so sure we talked about this in class)
Amortization period
What is an amortization period?
A designated period of time granted to owners of nonconforming uses. It is in effect, a grace period, putting owners on notice of the law and giving them a fair opportunity to recoup their investment
How do you determine whether an amortization period is valid?
a. The validity of an amortization period depends on its reasonableness.
b. There is no fixed formula for determining what constitutes a reasonable period.
c. Instead, an amortization period is presumed valid, and the owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power.
d. The time allowed must be measured for reasonableness by considering whether the owner had adequate time to recoup their investment in the use.


3. Other States
Hold that amortization is per se unconstitutional. In those states, only the two historical regulations are available
What happens to nonconforming uses if there is no amortization period?
The right to continue the use runs with the land. However, once a valid amortization scheme is enacted, the right ends at the termination of the period
How do you determine whether a right is vested?
i. Considering factors:
To determine when a right is vested, one doesn’t look at a definite percentage of the total cost which establishes vested rights. It depends on the type of project, its location, ultimate cost, and principally the amount accomplished under conformity. Each case must be decided by considering these factors.

ii. Permit is filed:
Some states the right is vested when a proper application for a building permit is filed (even without acts on reliance of existing law)
When is estoppel available to a property owner concerning rezoning?
b. Estoppel:
i. is available when a property owner
1. Relying in good faith
2. Upon some act or omission of the government
3. Has made such a substantial change in position or incurred such extensive obligations and expenses
4. That it would be highly inequitable and unjust to destroy the rights he has acquired.
ii. However:
1. Courts generally hold that the local government is no estopped to revoke an illegal permit (say when a building inspector mistakenly issues a permit for development not allowed by the zoning ordinance
How does one go about amending a zoning map so as to allow a prohibited use on the land?
i. One who wishes to devote land to a use prohibit by zoning may seek an amendment of the zoning map reclassifying that particular parcel. If there is to be a change, notice must be given, and hearing conducted regarding it
How do courts deal with piecemeal zoning?
1. Prevailing view: rezoning should be accorded the deference usually given legislation and upheld unless clearly not rationally related to public interest.
2. Intermediate: rezoning is quasi-judicial, rather than a legislative act; as such they are not entitled to presumption of validity and must be supported by proof of a sufficient nexus with public interest.
3. Hostile view: a rezoning is valid only if there had been substantial change in land uses in the neighborhood or a mistake in the earlier classification.
4. Spot zoning: if you see this, the court will likely hold the zoning is improper; if you don’t see it, the court will likely okay it
What is a special exception to zoning?
i. Zoning ordinances typically allow some specific uses in certain zone, not as a matter of right, but only after determination by the zoning board of adjustment that they are located and designed so as to be compatible with established uses and uses allowed as of right. Examples include: water-towers, college fraternities, libraries, fire stations, etc. They are also known as “conditional use.”
ii. They are built into the zoning
How do special exceptions differ from variations?
they involve a use authorized by the zoning ordinance
What are the requirements for a special exception?
1. (grounds) State specific grounds for their decision to grant or deny a special exception, and
2. (reasons) support those grounds by findings supported by substantial evidence
What is a variance?
i. Authorized deviations from strict enforcement of zoning ordinances in an individual case due to specific hardship
How do variations differ from special exceptions?
they allow a use that deviates from the ordinance
What must one show to establish hardship?
1. That a reasonable return cannot be had from any use allowed in that zone.
2. The hardship must also be unique (otherwise the appropriate remedy would be an amendment).
3. The proposed use is not contrary to public interest.
4. Usually the hardship is measured in $
What is zoning by the electorate?
a. In some jurisdictions the public may vote on zoning amendments, either through a referendum or an initiate
What is the rationale behind zoning by electorate?
Since zoning is within the scope of legislative power, and since this power is reserved by the people to themselves, the referendum process does not violate the Due Process Clause when applied to a zoning ordinance