Chapter 5 - Land Use Controls Flashcards
Public Land Use Controls
The right of Police Powers or the government’s regulation of land use through zoning laws, building codes, subdivision ordinances and environmental protection laws.
Planning
The purpose of planning is to provide for the orderly growth of a community that will result in the greatest social and economic benefits to the people in that community.
Zoning Ordinance
Consists of two parts, the zoning map and the the text of the ordinance. The map identifies the areas of designated distracts and the text sets forth the type of use permitted under each zoning classification or subclassification, and the specific requirements of compliance.
- Can’t violate 4th amendment rights.
- Power must be exercised in a reasonable manner.
- Must be clear and specific
- Must not be discriminatory
- Must promote public health safety and general welfare
- Has to apply to all properties similarly
Zone Types/Classifications
Residential, agricultural, commercial, light manufacturing, heavy industrial and special use (schools or churches), multiple use or cluster zoning.
Planned Unit Developments (PUDs)
Multiple use or cluster zone that allows for creation of a neighborhood that has housing and supporting businesses. (Commercial Area –> Flex Area –> Multifamily area)
Exclusive-Use Zoning
Single use zones, zones where only the specified use may be made of the property within the exclusive use zone. For example, if the zone is commercial, residential use is not permitted.
Cumulative-Use Zoning
Uses are placed in order of priority, and higher priority uses may be made in areas zone for lower priority uses. For example, if an area is zoned for commercial, residential use may be made of the property.
Priority Order for Cumulative-Use Zoning
Residential
Commercial
Industrial
Police Power v. Eminent Domain and compensation of property owners.
When land is rezoned under authority of Police Powers, a property owner is not reimbursed for the loss of property value caused by a zoning change.
When land is condemned under the power of Eminent Domain, the fair market value must be given to the property owner.
Legal Nonconforming Use
When zoning is first imposed or an area is rezoned, the zoning authority cannot require the property owners to immediately discontinue existing use that doesn’t conform to the new zoning ordinance. The key is Pre-Existing Use. (Grandfathered in). Can sell as long as it remains the same in every way.
Limits on Legal Nonconforming Use
- Abandoned nonconforming use cannot be resumed
- The nonconforming use cannot be expanded upon or changed (can’t change sign, can’t upgrade, etc.)
- It cannot be changed from one nonconforming use to another.
- If destroyed by disaster, it often cannot be replaced by another nonconforming structure. (Some zoning ordinances allow for rebuild if done within a reasonable time)
- Amortization period during which the nonconforming user is permitted to continue, after which they must change use to conform.
Illegal Use
A use that is contrary to the existing zoning ordinances at the time the use is instituted. The key is the time, it’s a violation of present law.
Injuction
An exercise of the Police Powers of government
Zoning Amendments
An actual change in the zoning code itself.
Variance
Is a permitted deviation from specific requirements of the existing zoning ordinance. These are permitted if the deviation is not substantial and strict compliance would impose an undue hardship on the property owner. Must be applicable to only one property and be special or peculiar to the individual property. Authorities not required to approve.
Condition/Special Use Permit (Special Exception)
A use that is already provided for in the zone code (for example for.a school or church with residential area) There is no basis to deny the application as long as the specific conditions of the special use are being met.
Overlay Districts
A zoning device that superimposes one zoning area over another. District has two zonings. Eg: Dilworth is Residential but some areas ALSO Historical.
HIstoric Preservation Zoning
Zoning to preserve irreplaceable historical legacies of architecture.
Aesthetic Zoning District
North Carolina has specific zoning ordinances providing that an area can be regulated for essentially aesthetic reasons. Likely going to be a Zoning Overlay.
Spot Zoning
Occurs when a specific property is to permitted a use that is different from the zoning requirements around it. If for the benefit or detriment of a particular property owner, it is illegal.
Cluster (Multiple) Zoning
Allows for a single zone to contain a variety of densities for example, apartments and single family homes.
Buffer Zones
Transitional spaces that are used between two separate types of zoning or land use; or open spaces within subdivisions to allow for privacy and visual and noise control.
Subdivision Regulations (Ordinances)
Purpose to protect purchasers of property within Subdivision and to protect taxpayers in the city or county from significantly increased tax burdens resulting from the demands for services generated by the new subdivision.
- Two or more lots
What Requirements are Typically Addressed in Subdivision Regulations?
- Street width, curbsm, storm drains and grade specifications
- Lot size (not smaller than minimum size)
- Single family occupancy only. Specific areas may be set aside for multifamily dwellings
- Utilities must be available to each lot and setup same
- Setback requirements for each lot (front and interior property lines)
- Adequate area drainage to avoid damaging properties.
Statutory Provisions for Selling a Subdivision Lot
- Preliminary map attached to contract. Language that final map to be delivered prior to closing and conveyance.
- Notification to the buyer that the final map is not yet recorded, there is no obligation by government regarding final plat approval, the final plat may differ and the buyer has the right to terminate the contract if there is a material difference between the prelim map and final map.
- If no material difference in maps, buyer has at least 5 days to close after receiving the final map.
- Buyer has 15 days after receiving the final map to terminate the contract if material difference exists.
Dedication and Acceptance of Land for Streets
Once final plat map recorded, land shown as streets will be dedicated to the public. This conveys use and potential public ownership, it does not imply ultimate acceptance into a public road system.
- Dedication: process to get into Public system
- Acceptance: becomes a public road and accepted into the system.
Subdivision Street Disclosure Statement
This indicates whether the street in front of the property is private or public.
This is related to who will maintain the roads.
Building Codes
Form of land control for the protection of the public. Usually regulates materials and methods. Electric, fire and safety, and sanitary equipment facilities. Inspections are performed frequently to confirm the requirements are being met.
Certificate of Occupancy (CO)
Based on the satisfactory inspection of the property and permits the occupation of the structure by tenants or the owner. Some cities require this even when not new construction.
Flood Hazard Areas
FEMA issues maps that designate flood hazard areas and it changes constantly. Material fact that must be disclosed.
National Flood Insurance Program
Required for homes with mortgages from any federally related loan program. It’s purchased through local insurance companies but is provided through the National Flood Insurance Program.
Highway Access Controls
Related to ways to get on and off highways. Ability of government to restrict access to high traffic roads when needed for safety. Construction of Single access road may be needed if the driveways can’t be directly connected to the high traffic road.
Interstate Land Sales Full Disclosure Act
Federal regulation of the interstate sale of unimproved lots, administered by the HUD.
Purpose to prevent fraudulent marketing schemes when land is sold by misleading sales practices on a sight unseen basis. Eg: buying a piece of desert with no roads, houses etc.
- Includes Condo, Coops and Campsites
- Exempt: subdivision with fewer than 25 lots or where all lots of 20 acres or more.
Property Report:
- distance
- surrounding amenities
- soil condition affecting foundations and septic systems
- 5 years in prison or $5000 fine if don’t do.
Public Land Use Controls
Municipalities impose
1848 Supreme Court Ruling
Enforced Restrictive Covenants
1926 Supreme Court Ruling
Started in Manhattan (Chrysler building) Public Controls instituted
North Carolina Enabling Acts
Provide the legal basis for local government to set and enforce Zoning Ordinances and develop long range plans for growth. Therefore zoning is local.
Master Plan
Created by local gov. per enabling acts. Determines where things are going to go and includes:
- Permitted uses of land (lot sizes)
- types of structures (multi-story or not) heights
- set back (how much distance between home and property lines, front, back and sides.)
- Size and appearance of Structures
- Density (homes per acre)
- Protection of Natural Resources
Injunction
STOP doing that, municipality will get this to enforce the zoning law
Extraterritorial Jurisdiction
Space outside municipality limits. Can claim land into the next area.
Public or Private Streets
Gated community: Private and maintained by the community
Onsite Septic Systems
needed if there is no city water or sewer. Need a soil suitability test (perc test). Then get a permit valid for # of time within which you must build the house.
Septic System Capacity
Based on the number of bedrooms (up to 2 per bedroom)
Perc Test
Soil suitability regarding septic systems
Straight Pipe Drainage
Illegal in NC, sewage coming from house straight to stream creek etc.
How much of the US does the government Own
1/3 = 775 million acres
Private Land Use Controls
Covenants and Restrictions
Restrictive (Protective) Covenants
- Imposed by the Developer
- Recorded with the Deed (Appurtenant)
- Purchasers agree to abide by those covenants
- Declaration of restrictive covenants filed
Doctrine of Laches
If a restriction is not enforced for a certain period of time the HOA may lose the right to enforce and others can do the same thing. It becomes null and void.
Termination of Covenants
- Doctrine of Laches
- Expiration of time periord
- Unanimous vote of the property owners
- Changes in character of subdivision that make it unsuitable for original intention
- Failure to Enforce on a timely basis
- Lost by abandonment
Enforcement of Private Land Use Controls
Enforced by Public Law through court action, known as an injunction.
