Property Ii - Land Use Controls

Front 1

Definition of "Zoning"

Back 1

The main type of public land-use regulation which is generally done at the local, municipal, level from the state's police power. It is a way of controlling development and growth.

Front 2

Enacting a Zoning Ordinance

Back 2

Adoption of a zoning ordincance is a legislative act. Legislative judgment that its particular mix of land use restrictions will best serve the health, safety, welfare, and morals of local residents.

Front 3

Types of Zoning

Back 3

1. Euclidean
2. Use Regulations
3. Height and Area Regulations

Front 4

Definition of "Euclidean" zoning

Back 4

Uses a cumulative or building block approach to zoning, subjecting certain areas of land to use, and the same land is also subjected to height and area restrictions.

Front 5

Definition of "Use Regulation" zoning

Back 5

Typical zoning ordinance divides teh community into separate regions or "zones" which are shown on detailed maps, and specifies the uses permitted in each zone.

Note: Most common form of zoning regulation used today.

Front 6

Definition of "Height and Area Regulation" zoning

Back 6

Restrictions on the buildings that house each particluar type of use. These restrictions are justified on a number of bases, including fire safety, density control, and protection of access to light and air.

Front 7

A zoning ordinance is presumed to be ____________.

Back 7

Constitutional

Front 8

When is a zoning ordinance unconstitutional on its face?

Back 8

A zoning ordinance is unconstitutional only if its provisions are clearly arbitrary and unreasonable, with no substantial relation to the public health, safety, morals, or general welfare.

Front 9

Factors to determine that a zoning ordinance is unconstitutional on its face.

Back 9

1. Substantive Due Process
2. Burden of Proof rests on the challenging party.
3. Fairly Debateable - A court may not conduct an independent review of the wisdom or policy of a zoning ordinance; if the validity of the legistlative classification is "fairly debatable", the legislative judgment must be allowed to control.

Front 10

When is a zoning ordinance unconstitutional as applied?

Back 10

A zoning ordinance might be unconstitutional as applied to a particular parcel. The gov't power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use is not unlimited, and such restrictions can't be imposed if they do bear a substantial relation to the public health, safety, morals, or general welfare.

Front 11

Local Gov'ts and Zoning Regulations

Back 11

A local gov't has broad authority to deny zoning subdivision requests for valid health and safety factors so long as it has governing regulations, enacted pursuant to state law, which allow or require consideration of these factors.

Front 12

May a board deny approval of a plan based on "potential" conflicts with its regulations?

Back 12

Yes

Front 13

What is the modern view of Eminent Domain in relation to urban renewal?

Back 13

Allows eminent domain for urban renewal so long as it is within the power of the legislature to determine whether a community should be pretty as well as healthy.

Front 14

What is an Official Planning Map?

Back 14

Cities have official maps which include present and future streets and zoning decisions are based on all features of this map.

Front 15

How is Public Ownership a tool for zoning?

Back 15

State and local gov't can use public ownership to reach zoning goals.

Front 16

In regards to Public Ownership, are gov't takings constitutional?

Back 16

Gov't takings are constitutionally valid despite the process by which it's taken so long as the purpose is to promote the public welfare and there is just compensation.

Note: Under the 5th Amendment, public use is now defined by the purpose underlying the gov't action, not by the identity of the land user.

Front 17

Can condemnation be used to promote the public good?

Back 17

Generally, it is allowed to condemn property in order to transfer it to another private party who will develop it in a manner which promotes the public good.

Note: This is reviewed under the Rational Basis standard.

Front 18

What is a Non-Conforming Use?

Back 18

A use of land that lawfully existed before the zoning ordinance was enacted, but that doesn not comply with the ordinance.

Front 19

What is an amortization period?

Back 19

A "grace period" that puts owners on fair notice of the law and giving them a fair opportunity to recoup their investment.

Front 20

What type of test is used to determine the reasonableness of an amortization period determined?

Back 20

By using a Balance Test. To protect the rights of individual owners at the temporary expense of public land use objectives. Typically the period of time allowed has been measured for reasonableness considering whether the owners had adequate time to recoup their investment in the use.

Front 21

What are the factors that go into determining the amortization period's reasonableness?

Back 21

1. The amount of the owner's investment
2. The nature of the nonconforming use
3. Its remaining useful life
4. The potential harm to the public if the use continues.

Front 22

Are amortization periods constitutional?

Back 22

They're probably a violation unless owner is given a substantial period to phase out the use. (DP and Taking)

Front 23

What is the ALI Code regarding nonconforming uses?

Back 23

The ALI Code restricts elimination of nonconforming uses unless there is an express policy for the neighborhood to maintain its character for a substantial period.

Front 24

What are the ways to restrict a nonconforming use?

Back 24

1. Most ordinances bar the expansion of the nonconforming use.
2. One nonconforming use can't be transformed into a different nonconforming use.
3. While the owner of a nonfoncorming use can make minor reparis; major alterations or structural repairs that will extend the duration of the use cannot be made.

Front 25

How are nonconforming uses terminated?

Back 25

1. Abandonment
2. Destruction

Front 26

What elements must be met to show abandonment of a nonconforming use?

Back 26

In most jurisdictions, abandonment occurs only if:
1. The owner intends to abandon the use, and
2. It is discontinued for substantial use.

Front 27

Can specific time periods be set to show abandonment?

Back 27

Yes, some ordinances provide that discontinuance during a specific timem period, usually 6 months or a year, is sufficient to end the use regardless of the owner's intent.

Front 28

Does destruction of a nonconforming use usually terminate the right to continue the use?

Back 28

Yes

Front 29

What is the definition of a "Vested Right"?

Back 29

A landowner gains a vested right when she takes substantial steps in developing her parcel in conformity/reliance with the existing classification.

Front 30

What are the factors to determine Vested Rights?

Back 30

1. Type of Project
2. Location
3. Ultimate Cost
4. Principally the amount accomplished under conformity

Front 31

What is the Date Certain Vesting Rights Doctrine?

Back 31

Some states say the right to develop vests at the time the developer files for a building permit.

Front 32

When can the doctrine of Equitable Estoppel bar a municipality from rezoning?

Back 32

When the property owner has:

1. Relied in Good Faith,
2. Upon some act or omission of the gov't,
3. Made such a substantial change in position or incurred such extensive obligations and expenses that would make it highly inequitable and unjust to destroy the rights he has acquired.

Front 33

Can a building permit given in error be revoked?

Back 33

The majority of jurisdictions allow the permit to be revoked while the minority estop.

Front 34

When amending the zoning map, is a zoning ordinance presumed to be valid?

Back 34

Yes, absent proof that the rezoning decision was arbitrary or unreasonable.

Front 35

What is the main limitation on rezoning?

Back 35

The doctrine of Spot Zoning. Spot zoning is presumed invalid. It confers a special benefit on a small parcel of land regardless of the public interest or the comprehensive plan.

Front 36

What factors are considered when applying the doctrine of Spot Zoning?

Back 36

1. Size of the parcel
2. The benefits conferred on teh parcel compared to surrounding parcels
3. Any injury or detriment to surrounding landowners and the public in general
4. Changed conditions in the area, and
5. Whether the rezoning is in accordance with a comprehensive plan

Front 37

What is the modern version of Spot Zoning?

Back 37

Contract Zoning which is piecemeal rezoning accompanied by restrictive covenants on the rezoned land.

Front 38

What is a Special Exception (AKA Conditional Use)?

Back 38

Where a proposed nonconforming use is compatible with established uses, a local zoning board of adjustment may issue special exception, sometimes called a conditional use permit.

Front 39

What do courts require when reviewing Special Exceptions?

Back 39

Courts often require the board to state its reasons for granting or denying a request and to base its decision on substantial evidence.

Front 40

How is a Special Exception different from a Variance?

Back 40

1. Special exceptions involve a use authorized by the zoning ordinance, while the variance allows a use that deviates from the ordinance.
2. The concern underlying the special exception is to prevent harm to surrounding uses, while the variance serves to relieve the property from unusual hardship.

Front 41

What is a Variance?

Back 41

An authorized deviation from strict enforcement of the zoning ordinance in an individual case due to special hardship.

Front 42

How do you show a hardship?

Back 42

1. You must show that you cannot gain a reasonable return from any use allowed int eh zone currrently.
2. It must stem from the nature of the land, not owners need, and must be unique.

Front 43

What are the different types of variances?

Back 43

1. Area Variance
2. Use Variance

Front 44

What does an Area Variance allow?

Back 44

It allows modification of height, location, setback, size, or similar requirements for a use that is permitted in the zone.

Front 45

What does a Use Variance allow?

Back 45

It allows a use that would normally be prohibited in teh zone.

Front 46

Why are Use Variances controversial?

Back 46

Many jurisdictions, statues, ordinances, or case law prohibit the use variance based on teh logic that it constitutes a rezoning of the hparcel.

Front 47

Is the burden of proof usually greater for a Use or Area Variance?

Back 47

A Use Variance

Front 48

What are the Modern Zoning Tools?

Back 48

1. Contract Zoning
2. Conditional Zoning
3. Planned Unit Development

Front 49

What is Contract Zoning?

Back 49

Piecemeal rezoning accompanied by restrictive covenants on the rezoned land.

Front 50

What is Conditional Zoning?

Back 50

It closely resembles contract zoning but the city or other gov't entity makes no official promise. It identifies the conditions that must be met before rezoning is approved, but in theory, it doesn't legally bind itself to rezone the land.

Front 51

What is a Floating Zone?

Back 51

A new zoning district approved with specific characteristics, no specific location. A developer can then apply for a rezoning to attach the floating zone to a specific property.

Front 52

What is the advantage of a Floating Zone?

Back 52

It allows a city enhanced control over the location of shopping centers, industrial complexes, and other large-scale projects that may produce significant traffic, parking, and other impacts. This is valid in almost all states.

Front 53

What is a Planned Unit Development (PUD)?

Back 53

The expansion of cluster zoning to include non-residential uses. Within general guidelines, the owner is allowed to master-plan the specific details of a large-scale development project, including the types and locations of permitted uses. The final plan is then presented to zoning authorities for approval.

Front 54

What is "Zoning by Electorate"?

Back 54

Allowing the public to participate in zoning regulations through referendum or initiative.