Chapter 11: Land Use Regulation Flashcards
Nuisance Law
What are the five elements to prove nuisance?
- Intentional;
- non-trespassory;
- unreasonable;
- substantial interference;
- use and enjoyment of the land
Nuisance Law
Define intentional
- Acting for the purpose of causing the harm, or
- knowing that the harm is resulting or
- the harm is substantially certain to result from his contact
Nuisance Law
Define non-trespassory
The interference must not involve any physical entry: noise, vibration, light, and odors
Nuisance Law
Define unreasonable
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
Nuisance Law
Define substantial interference
There must be a real and appreciable invasion of the plaintiff’s interests
Nuisance Law
What are the gravity of the harm factors?
- The extent of the harm involved;
- the character of the harm involved;
- the social value that the law attaches to the type of use or enjoyment invaded;
- the suitability of the particular use or enjoyment invaded to the character of the locality; and
- the burden on the person harmed of avoiding the harm
Nuisance Law
What are the utility factors?
- The social value that the law attaches to the primary purpose of the conduct;
- the suitability of the conduct to the character of the locality; and
- the impracticability of preventing, or avoiding the invasion
Basics of Zoning
What is the Euclid Test?
Known as the rational basis test: a law is unconstitutional only if it is “clearly arbitrary and unreasonable”
When is the Euclid Test replaced with the strict scrutiny test?
When a law discriminates against a suspect class or impairs a fundamental right
Basics of Zoning
What is the strict scrutiny test?
A law is constitutional only if it is narrowly tailored to accomplish a compelling state interest
Typical Zoning Ordinance
What are the basic components of a typical zoning ordinance?
- The text of the ordinance; and
- maps that implement the ordinance
Nonconforming Uses
How can a non-conforming use be terminated?
- By destruction of the structure housing the use;
- if the use as a nuisance;
- by eminent domain
- Amortization as long as a reasonable period is allowed
Nonconforming Uses
How can an owner lose their right to a nonconforming use?
- Abandonment (requires intent) or
- discontinuation (no intent)
Nonconforming Uses
What happens if the zoning changes before a new project is completed?
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
Zoning Amendments
What are the factors that show spot zoning?
- Singles out a small parcel of land for different treatment;
- primarily for the benefit of the private owner;
- in a manner inconsistent with the general plan
Variances
What is an area variance?
Permits the modification of lot size, setback, height, frontage, density, or similar requirements
Variances
What is the test for an area variance?
The practical difficulties test: simply requires that the land cannot practically be used, given the existing zoning
Variances
What is a use variance?
Authorizes a type of use that is otherwise prohibited by the zoning ordinance
Variances
What is the test for a use variance?
Usually requires a showing of strict hardship
Conditional Uses
What is a conditional use?
A use that is permitted in the zone if certain conditions specified in the zoning ordinance are met
New Approaches to Land Use Regulation
What are the four new approaches to land use regulation?
- Conditional zoning;
- Floating zone;
- Cluster zone; and
- Planned unit development
New Approaches to Land Use Regulation
What is conditional zoning?
Rezoning a particular parcel when the owner satisfies conditions imposed by the city or county
New Approaches to Land Use Regulation
What is floating zone?
A zoning district with detailed provisions that does not have a specific location until an owner applies for it
New Approaches to Land Use Regulation
What is cluster zone?
A residential zone that restricts the number of homes, but allows the developer a choice about where the homes will be located
New Approaches to Land Use Regulation
What is planned unit development?
Zoning that allows a developer to plan an entire community
Family Zoning
What is the Moore Test for family zoning?
The court must examine carefully the importance of governmental interest advanced, and the extent to which they are served by the regulation
