Land Use Flashcards
Zoning
State and local governments may regulate the use of land through zoning laws
Zoning laws are enacted for the protection and safety of the community
- States have authority to zone through police powers
- Local governments get power to zone through specific enabling acts
Objective:
- Segregate incompatible uses form being developed in the same area
Cumulative Zoning
The traditional approach in which residential use is permitted everywhere, commercial use is restricted to some areas, and industrial use is allowed in the fewest areas.
Mutually Exclusive Zoning
Some jurisdictions have developed an approach where only one type of use is permitted by zone
Existing Nonconforming Properties
When zoning is changed and a structure does not satisfy the zone’s requirements, it is called a “nonconforming use”
The goal of the property owner its to get the nonconforming use grandfathered in.
Vested Rights: If the project is in process when the change happens, the developer must have the property building permits by the time the ordinance takes effect. The developer must also demonstrate the project was in good faith.
A nonconforming owner cannot switch to another nonconforming use.
Post-Ordinance Nonconforming Properties
When the property owner requests a change AFTER the zoning ordinance is in place
Variance:
- Owner applies for variance, essentially permission to violate the zoning rules
A person applying for variance must show ALL of the following:
- compliance would create unnecessary hardship
- the hardship arises from circumstances unique to the property
- the owner did not create the hardship
- the variance is in keeping with the overall purpose of the ordinance, and
- the variance will not cause substantial harm, to the general welfare
Use Variance
Obtain the right to use property in a manner not permitted by zoning
Area Variance
Focuses on restrictions concerning property development
Private Nuisance
A substantial and unreasonable interference with another individual’s use or enjoyment of land
Substantial = one that would be offensive, inconvenient, or annoying too an average person in the community
Unreasonable = the injury outweighs the usefulness of the defendant’s actions
Public Nuisance
Unreasonable interference with the health, safety, or property rights of the community
Private Party: must show that she suffered a different kind of harm than the rest of the community
Remedies for Nuisance
Usual remedy is damages
If money damages are inadequate or unavailable, the court can impose injunctive relief
Riparian Water Rights
Doctrine of riparian rights holds that landowners who border a waterway own the rights to the waterway.
The right depends on whether the landowner is located near the water.
Riparians share the right to reasonable use of the water, such that one riparian is liable to another for interference with the other’s use.
Prior Appropriation Water Rights
First in time, first in right: the first person to use the water, regardless of where their land is located, has the rights to the water
Beneficial Use: in a prior appropriation jurisdiction, the user must put the water to a beneficial use
Lateral Support Rights
A neighboring landowner cannot excavate so as to cause a cave in (ie, subsidence) on an adjacent owner’s land
Applicable standards:
- Did the neighbor’s buildings (structures) contribute to the cave in? If so, the standard to apply to the one excavating is negligence
- What if the neighbor’s buildings did not contribute to cave in? The standard to apply is strict liability
Subjacent Support
*Think mineral rights
The surface landowners have the right not to have their land subside from the activities of the owners of underground rights
