land use and Takings

Question 1

What are the two tests for undue hardship for a variance?

Answer 1

Reasonable use - some states say that if owners use is reasonable, they should grant the variance.
Undue hardship - generally where the owner wouldn’t be able to make reasonable use of the land.

Question 2

What are the 4 factors to evaluate whether a variance is appropriate?

Answer 2

-Undue hardship
-Unique circumstances
-intent of the ordinance
-character of the neighborhood

Question 3

What is “spot zoning”? is it allowed?

Answer 3

Spot zoning is prohibited. It’s when they zone small areas (like 2 houses) instead of a comprehensive plan or zoning law.

Question 4

What is rezoning?

Answer 4

When there is a change to the comprehensive plan or zoning law. Not spot zoning.

Question 5

Is a conditional use permit part of the comprehensive plan?

Answer 5

Yes. The comprehensive plan accounts for conditional use permits.

Question 6

What is the Penn Central Test for Regulatory takings?

Answer 6

When the value of the land has been diminished by less than 100%, courts consider:
* the economic impact of the regulation,
* the character of the government action, and
* the interface with the owners reasonable investment backed expectations.

Question 7

What is the Lucas test for Regulatory takings? When does it apply?

Answer 7

When the property is deprived of 100% of its economic value, it is a per se taking unless nuisance or PTD.

Question 8

What is a regulatory taking?

Answer 8

When regulation aims to protect public needs but simultaneously restrains private property rights. The state enacts regulation that deprives land of its economically viable use.

Question 9

What is a hybrid taking?

Answer 9

Where an exaction (of an interest in land or monetary fee) is required as a condition of granting a regulatory permit.

Question 10

What is the Nollan nexus test for hybrid takings?

Answer 10

There must be an essential nexus between the permit and the easement to be taken - - between the landowners harmful activity and the property taken.

Question 11

What must be shown for a hybrid taking to exist?

Answer 11

Must show that the exaction (interest in land or fee for off-site mitigation) bears a substantial nexus and rough proportionality to the harm caused or the purpose of the permit caused by the proposed development.

Question 12

What is a hybrid taking?

Answer 12

Where there is a regulation prohibiting the landowner from doing something, but the sovereign says they’ll allow if the landowner give a little bit of property (through conservation easement, strip for bike path, acreage)

Question 13

What is the rough proportionality rule in hybrid takings?

Answer 13

Requires rough proportionality between the exaction (land taken) and the projected harm of the landowners proposed activity.

Question 14

What hybrid takings case combines the Nollan and Dollan test?

Answer 14

Koontz.
Monetary exactions are subject to Nolan/Dolan test if they are related to offsite land mitigation; but general taxes are not subject to the takings claim.
Nolan/Dolan test: The government may condition a land use permit on the relinquishment of real property (exaction) only if it shows a “nexus” and “rough proportionality” between the demand made and the impact of the proposed development”

Question 15

What is the hybrids taking rule from Koontz?

Answer 15

General taxes are not subject to Takings Claims. And monetary exactions are subject to Nolan/Dolan test if they are related to offsite land mitigation; but general taxes are not subject to the takings claim.

Question 16

What are the rules from Koontz?

Answer 16

–General taxes are not subject to takings claims.
–Monetary exactions subject to Nollan/Dollan test if they are related to offsite land mitigation.

Question 17

What is a temporary moratorium on a land use permit?

Answer 17

Are a necessary planning tool to stabilize context when planners are working on new regulations.

Question 18

What is the issue in temporary takings cases?

Answer 18

Whether the moratoria = a regulatory taking

Question 19

What are the purposes of land use law?

Answer 19

–Protect natural infrastructure
–Protect morals
–Assure habitability and safety
–Aesthetics - the suburban perfection.
–Residential character
–neighborhood density

Question 20

What is the doctrine of worthier title?

Answer 20

O to A for life, remainder in the heirs of O.
When you see this – A has life estate, O has reversion

Question 21

What is the rule in Shelleys case?

Answer 21

O to A for Life, remainder to A’s heirs.

This is just=O to A in FSA

Question 22

What is the RAP?

Answer 22

No interest is good unless it must vest, if at all, no later than 21 years after the last life in being at the time of conveyance.

Question 23

What is the purpose of RAP?

Answer 23

Intended to cut of interests & avoid dead hand control

Question 24

What are the State Modifications for RAP?

Answer 24

–Wait and See approach
–Cy Pres Approach
–The 90 year approach
–Statutory Cutoffs
–Recording statutes

Question 25

What is the wait and see approach?

Answer 25

wait & see if interest vests in 21 years after the death of last life in being & if it does not, strike the future interest & leave it in the current possessor’s hand in FSA

Question 26

What is cy pres approach?

Answer 26

change the period & reduce to 21 years in necessary (if og period was close to that)

Question 27

What is the 90 year approach?

Answer 27

just wait 90 years after the conveyance & see if the interest vested w/in that time; if it did, it’s valid

Question 28

Who do Statutory cut-off’s apply to?

Answer 28

for rights of re-entry & reverter (O’s interest)

Question 29

What is an Implied Reciprical negative easement?

Answer 29

Courts will imply where there was a common scheme to have a common plan development
o As long as property is similarly situated, the property will be burded

Question 30

When do you not enforce IRNE?

Answer 30

o Don’t enforce these when
* Discriminatory
* Unreasonable
* Violate public policy
* Deemed an unreasonable restraint on trade.

Question 31

What is Land Use law?

Answer 31

The interface of Private property and government.

Question 32

What are the 3 tiers of land use law?

Answer 32

Planning
Zoning
Application to specific parcels

Question 33

What are 4 ways property owners can get out of regulation?

Answer 33

–Rezoning
–Prior Non-Conforming use
–Variance
–Conditional use permit

Question 34

What is rezoning?

Answer 34

change the comprehensive plan or zoning law; prohibition against “spot zoning”.

Question 35

What is Prior non-conforming use?

Answer 35

(grandfathered in) also related to vested rights doctrine. But property may be phased out through amortorization and there are limits on changing non-conforming use.

Question 36

What is a variance? what is the test?

Answer 36

Use is not in compliance with the plan.

(a) Is there undue hardship? Land owner can’t make any reasonable use of the land.
(b) Is there deleterious impact on community or neighbor?
(c) In determining whether a variance is necessary due to undue hardship, the proper standard is not whether the prop owner seeks to use the prop in a reasonable manner that is prohibited by the ordinance.

Question 37

What is a conditional use permit?

Answer 37

(special exception) These are contemplated for in the plan. Asking for a permit.

Question 38

What is the Comprehensive Plan?

Answer 38

Provides long term guidance.

Question 39

What are Zoning Regulations?

Answer 39

Binding on the ground.
Map based zones (industrial, residential, open space, agricultural)
* Use Restrictions
o Building limits (setbacks, height)
o Animals (chickens, farm animals)
o Prohibitions as to natural resources
o Wellhead protection areas
* Process laws = State SEPA, open mtgs, etc.
* Note: these are separate from environmental restrictions

Question 40

What are the 3 levels of land use law?

Answer 40

1. Comprehensive planning - map based, includes standards.
2. implementation of broad standards - zoning regulations
3. application - Through permits, variances, etc.

Question 41

Explain Hybrid Takings / Exactions

Answer 41

Summary - where there is a regulation prohibiting the landowner from doing something, but the sovereign says they’ll allow if the landowner give a little bit of property (through conservation easement, strip for bike path, acreage)
* Must show that the exaction (interest in land or fee for off-site mitigation) bears a substantial nexus & rough proportionality to the harm caused or the purpose of the permit caused by the proposed development
* Taxes not analyzed under takings law