Eminent Domain and Zoning Flashcards
What is eminent domain?
Government’s 5th Amendment power to take private property for public use in exchange for just compensation.
Must a taking be physical?
No - it can be a physical taking or a regulatory taking.
To be a regulatory taking: the regulation must so affect your land that it loses ALL value.
What is the remedy for a regulatory taking?
The government must either
- compensate the owner, or
- terminate the regulation and pay O damages that occurred while the regulation was in effect.
What result if the government’s taking happens to benefit an individual?
That’s fine as long as the government’s actual purpose is to benefit the public and the government pays just compensation to the landowner.
What are zoning laws?
Pursuant to the police powers, government can enact statutes to reasonably control land use.
What is a zoning variance?
The way to achieve flexibility in zoning - the zoning board grants, essentially, an exception.
How can you get a zoning variance?
Must show (typically a Zoning Board) that the zoning decision would cause you undue hardship and that the variance won’t decrease the value of neighboring properties.
What result if a zoning law is enacted and an already existing property violates the new rule?
This is called “nonconforming use” and it cannot be eliminated all at once unless just compensation is paid. Otherwise it will be an unconstitutional taking.
What is an exaction?
When the government seeks amenities from private individuals in exchange for granting zoning variances - like permission to build a huge condo.
Examples: build street lights, a small park, widen the roads, etc.
What is the standard for determining whether an exaction is constitutional?
The exaction must be reasonably related in both nature and scope to the impact of the proposed development.
