Land Use Controls

Question 1

Nuisance

Answer 1

A non-trespassory interference or invasion of another’s use or enjoyment of property. (Judicial Doctrine)

Question 2

Servitues

Answer 2

Private agreements limiting land use (contract)

Question 3

Zoning

Answer 3

Legislative regulation limiting land use (legislative)

Question 4

Latin Maxim

Answer 4

Sic utere tuo ut alienum non laedas

One must use the land in a way that does not interfere with someone else’s use

Question 5

Public Nuisance

Answer 5

An activity that interferes with the rights of the general public, usually threatening public health, safety or morals (a polluting factory or a brothel)

Question 6

Private Nuisance

Answer 6

A non-trespassory invasion of another’s interest in the private use and enjoyment of land. (sounds, odors, vibrations)

Question 7

Private Nuisance Elements

Answer 7

Intentional, 
Non-Trespassory,
Unreasonable, and
Substantial interference,
With the use and enjoyment of the plaintiff's land

Question 8

Key tests for Nuisance

Answer 8

Gavity of Harm Test

Balance of Utilities Test

Question 9

Remedies for Nuisance

Answer 9

Injunctive relief
Damages
Some combination of the two

Question 10

Types of Zoning

Answer 10

Use Based
–Divides areas into zones and permits certain actives. (older system)

Form Based
–Physical bases, lot size, lot coverage ratios, etc. (modern system)

Question 11

Cumulative Use Based Zoning Ordinance

Answer 11

Inverted pyramid

Zone 7-- Heavy industrial
Zone 6-- Light industrial
Zone 5-- Commercial
Zone 3-- Duplexes and Apartments
Zone 2-- Duplexes 
Zone 1-- Single Family Residential

Question 12

Standards for Constitutional Review

Answer 12

Rational Basis
Intermediate Scrutiny
Strict Scrutiny

Question 13

Strict Scrutiny

Answer 13

Is there a compelling government interest? Is the challenged law narrowly tailored to meet that goal or interest? Is the challenged law the least restrictive means of achieving that goal or interest?

Question 14

Intermediate Scrutiny

Answer 14

Is there an important governmental interest and is the challenged law substantially related to that interest.

Question 15

Rational Basis

Answer 15

Is there a legitimate government interest–and is the challenged law rationally related to that interest?

Question 16

Contract Zoning

Answer 16

Bilateral agreement between government and landowner regarding rezoning

Question 17

Conditional Zoning

Answer 17

Unilateral agreement of landowner to comply with conditions to obtain rezoning.

Question 18

Overlay Zoning

Answer 18

Two districts occupying the same space. Residential district, with a historical district imposed on it also. (think of Warm Springs Ave.) Sometimes these zoning requires are voted on by the residents of those zones.

Question 19

Variances

Answer 19

A balancing act. Empowers zoning boards in “specific cases” to vary the terms of the ordinance–if not contrary to the public interest, or if enforcement causes hardship.

Question 20

Special Hardship Test

Answer 20

The owner cannot obtain a reasonable return under the existing zoning due to some special characteristic of the property itself that is not generally shared with other parcels in the district.

THINK [no economically viable or beneficial use].

Question 21

Unnecessary Hardship Test

Answer 21

If the purposes of the ordinance can be achieved even if the variance is granted, then the hardship is unnecessary.

The variance will be granted provided the special hardship test is met.

Question 22

Practical Difficulties Test

Answer 22

The owner must prove significant economic injury caused by enforcement of the existing zoning ordinance.

Question 23

Ranking the Hardship Tests

Answer 23

Most Strict

1) Special Hardship Test
2) Unnecessary Hardship Test
3) Practical Difficulties Test

Least Strict