land use and Takings Flashcards
What are the two tests for undue hardship for a variance?
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.
What are the 4 factors to evaluate whether a variance is appropriate?
-Undue hardship
-Unique circumstances
-intent of the ordinance
-character of the neighborhood
What is “spot zoning”? is it allowed?
Spot zoning is prohibited. It’s when they zone small areas (like 2 houses) instead of a comprehensive plan or zoning law.
What is rezoning?
When there is a change to the comprehensive plan or zoning law. Not spot zoning.
Is a conditional use permit part of the comprehensive plan?
Yes. The comprehensive plan accounts for conditional use permits.
What is the Penn Central Test for Regulatory takings?
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.
What is the Lucas test for Regulatory takings? When does it apply?
When the property is deprived of 100% of its economic value, it is a per se taking unless nuisance or PTD.
What is a regulatory taking?
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.
What is a hybrid taking?
Where an exaction (of an interest in land or monetary fee) is required as a condition of granting a regulatory permit.
What is the Nollan nexus test for hybrid takings?
There must be an essential nexus between the permit and the easement to be taken - - between the landowners harmful activity and the property taken.
What must be shown for a hybrid taking to exist?
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.
What is a hybrid taking?
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)
What is the rough proportionality rule in hybrid takings?
Requires rough proportionality between the exaction (land taken) and the projected harm of the landowners proposed activity.
What hybrid takings case combines the Nollan and Dollan test?
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”
What is the hybrids taking rule from Koontz?
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.
What are the rules from Koontz?
–General taxes are not subject to takings claims.
–Monetary exactions subject to Nollan/Dollan test if they are related to offsite land mitigation.
What is a temporary moratorium on a land use permit?
Are a necessary planning tool to stabilize context when planners are working on new regulations.
What is the issue in temporary takings cases?
Whether the moratoria = a regulatory taking
What are the purposes of land use law?
–Protect natural infrastructure
–Protect morals
–Assure habitability and safety
–Aesthetics - the suburban perfection.
–Residential character
–neighborhood density
What is the doctrine of worthier title?
O to A for life, remainder in the heirs of O.
When you see this – A has life estate, O has reversion
What is the rule in Shelleys case?
O to A for Life, remainder to A’s heirs.
This is just=O to A in FSA
What is the RAP?
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.
What is the purpose of RAP?
Intended to cut of interests & avoid dead hand control
What are the State Modifications for RAP?
–Wait and See approach
–Cy Pres Approach
–The 90 year approach
–Statutory Cutoffs
–Recording statutes
What is the wait and see approach?
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
What is cy pres approach?
change the period & reduce to 21 years in necessary (if og period was close to that)
What is the 90 year approach?
just wait 90 years after the conveyance & see if the interest vested w/in that time; if it did, it’s valid
Who do Statutory cut-off’s apply to?
for rights of re-entry & reverter (O’s interest)
What is an Implied Reciprical negative easement?
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
When do you not enforce IRNE?
o Don’t enforce these when
* Discriminatory
* Unreasonable
* Violate public policy
* Deemed an unreasonable restraint on trade.
What is Land Use law?
The interface of Private property and government.
What are the 3 tiers of land use law?
Planning
Zoning
Application to specific parcels
What are 4 ways property owners can get out of regulation?
–Rezoning
–Prior Non-Conforming use
–Variance
–Conditional use permit
What is rezoning?
change the comprehensive plan or zoning law; prohibition against “spot zoning”.
What is Prior non-conforming use?
(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.
What is a variance? what is the test?
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.
What is a conditional use permit?
(special exception) These are contemplated for in the plan. Asking for a permit.
What is the Comprehensive Plan?
Provides long term guidance.
What are Zoning Regulations?
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
What are the 3 levels of land use law?
- Comprehensive planning - map based, includes standards.
- implementation of broad standards - zoning regulations
- application - Through permits, variances, etc.
Explain Hybrid Takings / Exactions
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
