Final Flashcards
What is Vertical Consistency?
the connection between planning & zoning and deals with how well the zoning ordinance matches the goals of the Master (General) Plan.
What three items must Vertical Consistency follow.
General plan – policy with a map
Zoning – regulation with a map
Permitting – entitlement to land-use
The connection between the zone and permit has to be a very strong consistency.
What are the two types of Permitting
As of use right
Conditional use permit
What is a as of use right permit?
uses allowed by zoning ordinance. Allowed without special permission.
What is a conditional use permit?
Specific uses allowed based on meeting certain criteria designated in zoning ordinance. Typically, church, school, or other public use.
What is a Variance
Permission granted on a case by case basis to allow development despite development standards or zoning. A variance allows property owners to prove that relief from the Zoning ordinance is needed. Variances provide relief from unnecessary hardships that arise because of special conditions applicable to the affected parcel.
What 6 elements need to happen to Qualify for a Variance
1) Unnecessary hardship
2) Not caused by applicant
3) Unique physical character
4) Needed for reasonable use
5) Doesn’t alter essential characteristic of the zone or impair the use of adjacent property
6) Least intrusive
What is a Nonconforming Uses
A land use that was in existence when a Zoning restriction was adopted, but is now prohibited by that restriction
What does it take to create a nonconforming use?
Zoning changes or enactments that makes an existing use nonconforming. Use was established before the zoning was enacted. Would the nonconforming use be terminated because of a nuisance? It may.
How can a property lose a non conforming use
- A property owner’s right to continue a nonconforming use may be lost by abandonment.
a. Cessation – (Utah requires one year)
b. Intent to abandon - Expansion- this is almost always not allowed. Local laws often prohibit the enlargement, alteration, or extension of a nonconforming use.
- Amortization- Ordinance that phases out certain non-conforming uses over a designated time period. Amortization, phase out or reduce over time. Individualized assessment
- Phasing out
- Useful life: ROI
Purpose of subdividing land
- Implement standards of zoning ordinance.
- Ensure the orderly growth and development of communities.
- preventive measures intended to avert community blight
- land-use controls that govern the division of land
- to support the health, safety, welfare of community.
What is subdiving
To take a larger parcel of land and divide it up into smaller sections and puting restrictions on it for what it may be used for
what is the Fair Housing Act?
Protects against housing discrimination based on characteristics race, color, religion, national origin, sex, disability, and familial status.
Governmental decision to provide differential treatment: does it have a discriminatory impact? (disparate impact) does the decision fall disproportionately on a suspect/protected class?
Classes are spelled out race, color, religion, sex, familial status, national origin, and disability.
When there is a claim of discrimination, what must a plaintiff show?
- Differential treatment between those who are similar
- Based on protected class status
- Impact, must show it made impact
What must the government show in response to the FHA issue?
- Compelling governmental interest- the differential treatment serves a compelling governmental interest.
- Narrowly tailored - The method chosen cannot be broad
- A compelling public interest with no effective alternative for achieving their goal
How does a FHA claim different from an Equal Protection-based claim?
It is based on discriminatory intent as opposed to disparate impact.
Accommodations in public permitting for persons with disabilities
Under what circumstances must they be granted?
1) Reasonable: No fundamental change in program—any local zoning standards for normal permitting processes. Must provide adequate rational for a fundamental change or reasoned result.
2) Necessary: “but for” they are being denied. There are no other options.
3) Access to housing opportunities: handicapped has a right to choose housing of their choice.
What is an Inclusionary Zoning?
Refers to local land use ordinances that require or encourage developers to include affordable units in new residential developments. The focus is on moderate and low-income households. Affordable housing is not counted against the density requirements.
How is inclusionary zoning legal?
The police power entitles communities to take actions and adopt laws and policies that protect the public’s health, safety and welfare. So it is not a taking. It could be an exaction.
The Supreme Court has established that exactions from developers (like below-market-rate housing) must be related to the project through rational nexus and proportionality standards.
what is it? (APFO= Adequate public facilities ordinance
This is an ordinance that tries to limit growth from a city or town to be only in areas where the public infrastructure has been installed. Such an ordinance ensures adequate public services and facilities should happen concurrently.
APFO-Why are these policies generally considered legal/constitutional?
Because they advance the HSW of the community. As long as the APFO followed a substantive due process in their creation then they are considered constitutional.
Accretion and avulsion
Avulsion is a sudden change in land—property line doesn’t change. With accretion it does change. Usually the property line is midpoint of the river.
Prior Appropriation
Western States
Started with the mining laws in 1849. Mineral rights: mining law of 1866. Source: Perfect the rights to the water by 3 things: intent, diversion, and beneficial use—commercial use: consumptive, agricultural, mining and industrial use.
What is Growth Phasing?
Adequate Public Facilities Ordinance (APFO) is an ordinance that ensures adequate public services and facilities should happen concurrently.
i. One detriment often cited for concurrency is that it led to suburban sprawl
How is growth phasing constitutional?
As long as the APFO followed a substantive due process at its creation then they are considered constitutional
Air Quality Planning - Clean Air Act Amendments (CAAA 1990) Federal Environmental Protection
Standards are set at a federal level and implemented on a state level
- Federal created EPA, make air cleaner
- Epa adopted air quality standards
- States meet that standard
- Local government meet standard
What is the basic structure for A.Q. Planning?
i. EPA Requires- States create State Implementation plans to achieve compliance with the NAAQ’s ( NAAQS: numeric and measurable standards for 8 Criterion pollutants) requirements. And delegates power to the states to accomplish the goals. State can then delegate authority to a different state agency to create the plan.
1. Plan Identifies (state implementation plan (SIP)) - Three types of polluters – point source (smoke stack), mobile sources (cars), Indirect Sources
2. Often Creates Graduated Impact fee: Impact fees based environmental impacts. Greater environmental impact based on a logical and thought out metric (rough proportionality) = level of impact fee.
What is a Trasit Oriented Development? TOD
The purpose is to concentrate density and diversity (mix of uses) in a close proximity to fixed transit. To get people to choose mass transit or pedestrian travel instead of cars to increase density.
How do TOD zoning ordinances achieve that purpose?
TOD ordinances do this by regulating design standards, creating density minimums, parking maximums, and a diverse mix of allowed uses. There are also TOD Easements deed restrictions that require TOD (could use a better explanation of TOD Easements.)
What is Form Base Code
Form based code is ordinance focused on the envelope of a building and its interaction with the street trying to encourage community and a uniform development pattern. Often these codes are focused on long accepted urban design principles like eyes on the street and a healthy mix of uses and the requirement of durable materials and finishes.
How does Form Base code accomplish its goal
They accomplish this purpose by giving a framework for development focused on the design of the buildings and how they interact with the street without restricting the use in the building. This allows for the neighborhood to grow and evolve in its uses and intensities.
Riparian rights
Eastern States
- Acquisition based on land ownership
- Adjacency – Required but severable
- Transportable – must stay in the water shed
- Amount – a reasonable amount
- Abandonment – It goes with the land
- Shortage – reasonableness changes with how much there is
Prior Appropriation
i. Western States
1. Acquisition through intent to divert it out of its course and used for a beneficial use (agriculture, mining, manufacturing,
2. Adjacency – Is irrelevant
3. Transportable – Can be taken anywhere
4. Amount – based on a beneficial use over time
5. Abandonment – 8 years of non-beneficial use “use it or lose it”
6. Shortage – there are priorities – first in time first in right
What is Strict Scrutiny
A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy and the method chosen has to be the least impactful.
5 areas of Strict Scrutiny
- Differential treatment between those who are similar
- Based on protected class status
- Intent- must show they had intent
- Compelling governmental interest- the differential treatment serves the community’s HSW.
- Least impactful – narrowly tailored - The method chosen cannot be broad
How do we determine if it is based on suspect classification?
Race, nationality, ethnicity, religion, sexual orientation, gender.
Freedom of Expression, Freedom of Speech
1st amendment is more than just free speech. Six rights: 1) religion, 2) free exercise of religion, 3) free speech, 4) free press, 5) peaceably to assemble, 6) right to petition government to redress grievances
Sign Regulations
Distinguishing between content-based and time, place, manner regs.
Sign Regulations
Content Based
are sign regulations based on the sign’s content. It requires prior restraint.
Standards for content-based regulations
a. Facial - on its face treats different types of signs differently
b. If it requires reference to content
If you have a content-based regulation, you have to show strict scrutiny standard why it is necessary:
1) Serves a compelling governmental interest. Compelling all hell is going to occur on the community. An extreme action taken by the government.
2) It has the least impact of expression
Non-content based regs
- Time- Quick Review- Do regulations provide Quick response
- Manner- Are regulations Objective and specific standards
- Place- adequate alternative Forum
Religious Land Uses (RLUIPA = Religious Land Use and Institutionalized Persons Act)
Land use regulations frequently can impede the ability of churches or other religious institutions to carry out their mission of serving the religious needs of their members. Section 2(a) of RLUIPA thus bars zoning restrictions that impose a “substantial burden” on the religious exercise of a person or institution, unless the government can show that it has a “compelling interest” for imposing the restriction and that the restriction is the least restrictive way for the government to further that interest.
What types of zoning/permitting actions are covered by RLUIPA?
1) Churches and prisons/ juvenile centers etc. (religious land uses and institutionalized persons)
2) -Prohibits governmental actions that have a substantial burden on the free expression of religion.
What restrictions does RLUIPA place on those actions?
Plaintiff must show:
1) It was a discretionary approval (not as of right, conditional use
2) There is a “substantial Burden” being imposed– limit activity in a substantial way.
Defendant must show (RLUIPA can be circumvented if it survives strict scrutiny through):
3) Compelling governmental interest – government burden
4) Least Impactful/Least restrictive option– government burden
