Chapter 11: Land Use Regulation

Question 1

Nuisance Law

What are the five elements to prove nuisance?

Answer 1

1. Intentional;
2. non-trespassory;
3. unreasonable;
4. substantial interference;
5. use and enjoyment of the land

Question 2

Nuisance Law

Define intentional

Answer 2

1. Acting for the purpose of causing the harm, or
2. knowing that the harm is resulting or
3. the harm is substantially certain to result from his contact

Question 3

Nuisance Law

Define non-trespassory

Answer 3

The interference must not involve any physical entry: noise, vibration, light, and odors

Question 4

Nuisance Law

Define unreasonable

Answer 4

Split jx:
* The gravity of the harm test: conduct is unreasonable if it causes substantial harm
* Balancing test: if the gravity of the harm outweighs the utility of the conduct

Question 5

Nuisance Law

Define substantial interference

Answer 5

There must be a real and appreciable invasion of the plaintiff’s interests

Question 6

Nuisance Law

What are the gravity of the harm factors?

Answer 6

1. The extent of the harm involved;
2. the character of the harm involved;
3. the social value that the law attaches to the type of use or enjoyment invaded;
4. the suitability of the particular use or enjoyment invaded to the character of the locality; and
5. the burden on the person harmed of avoiding the harm

Question 7

Nuisance Law

What are the utility factors?

Answer 7

1. The social value that the law attaches to the primary purpose of the conduct;
2. the suitability of the conduct to the character of the locality; and
3. the impracticability of preventing, or avoiding the invasion

Question 8

Basics of Zoning

What is the Euclid Test?

Answer 8

Known as the rational basis test: a law is unconstitutional only if it is “clearly arbitrary and unreasonable”

Question 9

When is the Euclid Test replaced with the strict scrutiny test?

Answer 9

When a law discriminates against a suspect class or impairs a fundamental right

Question 10

Basics of Zoning

What is the strict scrutiny test?

Answer 10

A law is constitutional only if it is narrowly tailored to accomplish a compelling state interest

Question 11

Typical Zoning Ordinance

What are the basic components of a typical zoning ordinance?

Answer 11

1. The text of the ordinance; and
2. maps that implement the ordinance

Question 11

Nonconforming Uses

How can a non-conforming use be terminated?

Answer 11

1. By destruction of the structure housing the use;
2. if the use as a nuisance;
3. by eminent domain
4. Amortization as long as a reasonable period is allowed

Question 12

Nonconforming Uses

How can an owner lose their right to a nonconforming use?

Answer 12

1. Abandonment (requires intent) or
2. discontinuation (no intent)

Question 13

Nonconforming Uses

What happens if the zoning changes before a new project is completed?

Answer 13

The landowner retains a vested right if
1. she has already acquired the necessary permits and
2. spent a substantial amount of money in good faith reliance

Question 14

Zoning Amendments

What are the factors that show spot zoning?

Answer 14

1. Singles out a small parcel of land for different treatment;
2. primarily for the benefit of the private owner;
3. in a manner inconsistent with the general plan

Question 15

Variances

What is an area variance?

Answer 15

Permits the modification of lot size, setback, height, frontage, density, or similar requirements

Question 16

Variances

What is the test for an area variance?

Answer 16

The practical difficulties test: simply requires that the land cannot practically be used, given the existing zoning

Question 17

Variances

What is a use variance?

Answer 17

Authorizes a type of use that is otherwise prohibited by the zoning ordinance

Question 18

Variances

What is the test for a use variance?

Answer 18

Usually requires a showing of strict hardship

Question 19

Conditional Uses

What is a conditional use?

Answer 19

A use that is permitted in the zone if certain conditions specified in the zoning ordinance are met

Question 20

New Approaches to Land Use Regulation

What are the four new approaches to land use regulation?

Answer 20

1. Conditional zoning;
2. Floating zone;
3. Cluster zone; and
4. Planned unit development

Question 21

New Approaches to Land Use Regulation

What is conditional zoning?

Answer 21

Rezoning a particular parcel when the owner satisfies conditions imposed by the city or county

Question 22

New Approaches to Land Use Regulation

What is floating zone?

Answer 22

A zoning district with detailed provisions that does not have a specific location until an owner applies for it

Question 23

New Approaches to Land Use Regulation

What is cluster zone?

Answer 23

A residential zone that restricts the number of homes, but allows the developer a choice about where the homes will be located

Question 24

New Approaches to Land Use Regulation

What is planned unit development?

Answer 24

Zoning that allows a developer to plan an entire community

Question 25

Family Zoning

What is the Moore Test for family zoning?

Answer 25

The court must examine carefully the importance of governmental interest advanced, and the extent to which they are served by the regulation