Land use Flashcards
Cumulative zoning
The traditional approach, in which residential use is permitted everywhere, commercial use is permitted in fewer areas, and industrial use is allowed in the fewest areas.
Mutually exclusive zoning
The approach taken by some jurisdictions in allowing only one type of use per zone.
Nuisance
The usual remedy is damages, although a court may impose injunctive relief of money damages are inadequate.
(1) Private nuisance requires:
(a) Substantial interference, i.e., offensive, inconvenient, or annoying to the average person in the community; and
(b) Unreasonable interference, i.e., the injury outweighs the usefulness of the defendant’s actions.
(2) Public nuisance requires:
(a) Unreasonable interference with the health, safety, or property rights of the community; and
(b) If the action is brought by a private party, she must demonstrate an injury different from that of the rest of the community.
Water rights
(1) Riparian rights:
Landowners who border the waterway own it—and are entitled to reasonable use, i.e., noninterference with the use of other riparians;
(2) Prior appropriation:
Those who are first in time are first in right to beneficial (i.e., productive) use of the water.
Lateral support rights
A neighboring landowner cannot excavate in a way that causes a cave in (“subsidence”) on an adjacent owner’s land.
Negligence standard applies if a neighbor’s improvements contributed to the cave-in.
Strict liability applies if a neighbor’s buildings did not contribute.
Subjacent support
E.g., with respect to mineral rights.
Surface landowners have a right against subsidence from the activities of underground rights.
Transferees of underground rights are strictly liable for damages flowing from subsidence to existing above-ground structures. In contrast, they are only liable for negligence if the structures were built after the mineral rights were transferred.
Doctrine of amortization
A means used to terminate a nonconforming use.
Surface water rights
A landowner may generally impound such water (e.g., rain water) on her property and may make whatever reasonable use she wishes of that water.
The doctrine of prior use does not apply to surface water.
Spot zoning
Spot zoning, which is not permitted, is a rezoning that:
(1) Affects a small number of parcels of land—usually, a single parcel;
(2) In a manner that is inconsistent with:
(a) the zoning of the neighboring land; or
(b) a comprehensive land use plan;
(3) That usually benefits the owner of the parcel or parcels to the detriment of neighboring land.