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Land Use Law Flashcards

0
Q

What is the practice of law?

A

When legal principles are applied to a complex set of facts for another person with a reasonable expectation that that person may act in response.

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1
Q

What is Law?

A

A group of people with the authority who agree by majority on standards to govern behavior that are enforced by sanctions.

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2
Q

What is the unauthorized practice of law?

A

Applying complex legal principles to a set of facts for another person’s particular situation without a license to practice law (not an attorney).

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3
Q

What are the three (3) types of governmental power?

A

1) Executive
2) Judicial
3) Legislative

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4
Q

Define Police Power

A

The capacity of the state to regulate behavior and enforce order for the promotion/protection of the public’s health, safety, and welfare (HSW).

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5
Q

What are some examples of police powers?

A

Zoning
Taxation
Eminent Domain (taking of property with just compensation)
Escheat (taking of property that has no ownership)

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6
Q

What is Eminent Domain?

A

The right of the government to take private property for public use/purpose for the benefit of the public.

Limitations set forth in the constitution: fifth (5th) amendment of the constitution requires just compensation and the fourteenth (14th) requires due process.

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7
Q

Restrictive covenants must…

A

1) Run with the land;
2) Touch or concern the land;
3) Have privity of estate (chain of title).

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8
Q

Development Agreement

A

An agreement or contract between a local government and a developer that can side-step the public process but are very comparable to a rezone. You need substantive due process (within the governments police powers and has to be rational) and the agreement is executed by the legislative power (City Council). For chain of title, the development agreement should be recorded on property.

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9
Q

What is the role of the Legislative branch and whom in a local government serves in this capacity?

A

1) Make the laws

2) City Council

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10
Q

What is the role of the Executive branch and whom in local government serves in this capacity?

A

1) Implement and enforce the laws

2) Mayor

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11
Q

What is the role of the Judicial branch and whom in local government serves in this capacity?

A

1) Interpret the laws

2) Board of Adjusment

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12
Q

Procedural Due Process Must Have – (Fasano Case/Doctrine)?

A 
o Notice
	• Interested Party – someone with standing (applicants, neighbors, owners, etc.); anyone who might be affected by the 	
	action; anyone with a financial stake; anyone with a stake in the outcome; do you have standing (right to participate in a 
	legal proceeding)?
o Hearing
o Opportunity to present evidence
o An unbiased decision-maker
o Reasoned decision/outcome
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13
Q

Legislative Action:

A

No minimum standards; None of the items required in Procedural Due Process are required here; no safeguards for bad legislative decision making (just votes); Utah has LUDMA which gives minimum statutory standards; no minimum Constitutional standard – just the ballot box; only Legislative actions are referable (can go to ballot)

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14
Q

Nuisance:

A

unreasonable, unwarranted and/or unlawful use of property which causes inconvenience or damage to others either individual or public; can be smells, noise, water, etc

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15
Q

Private Nuisance:

A 
• Private Nuisance – non-trespassory, unreasonable interference with a person’s right to quiet enjoyment of their private property; effects only one property owner
o Elements (All Considered within the CONTEXT of that particular area)
• Suitability of use – looks at suitability of both uses taking into consideration the character of the place
• Social Utility – look at both; value to society
• Cost of avoidance – for both parties; which has the greater hardship to rectify and/or avoid?
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16
Q

Public Nuisance:

A 
• Private Nuisance – non-trespassory, unreasonable interference with a person’s right to quiet enjoyment of their private property; effects only one property owner
o Elements (All Considered within the CONTEXT of that particular area)
• Suitability of use – looks at suitability of both uses taking into consideration the character of the place
• Social Utility – look at both; value to society
• Cost of avoidance – for both parties; which has the greater hardship to rectify and/or avoid?
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17
Q

Prescriptive Easement:

A

Prescriptive Easements – an implied easement; easements upon another’s real property acquired by continued use without permission of the owner for a period of time (established by law)

   Elements:
• Continuous Use
• Open and Notorious
• Adverse to the interest of the property owner
• Long-Standing (Time set by statute)
• Presumed acquiescence due to inaction of the owner
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18
Q

What are Covenants, Conditions and Restrictions (CC&R’s)?

A

Restrictive Covenants – form of private land use regulation based on a contract that restricts the uses allowed on private land between entities with privity of estate; one party restricted, another party benefited; private parties get the benefits and the burdens

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19
Q

What factors are considered by the courts in interpreting the enforceability of CC&R’s (there are three)?

A

1) Purpose – has it changed or ended?
2) Character – has the maintenance for the purpose of the property been changed or abandoned?
3) Injury – will the original parties of the covenant be damaged by the removal of the covenant?

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20
Q

What are the three main elements regulated by Planning & Zoning?

A

D.U.M.

1) Density;
2) Use;
3) Mass

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21
Q

What is the vertical consistency in Planning & Zoning?

A

General Plan;
Zoning;
Entitlements

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22
Q

What is the horizontal consistency in Planning & Zoning?

A

Zoning with a master plan and land use regulations.

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23
Q

What is an “As of right use”?

A

As of Right Uses – allows all uses on the list without additional requirements; allowed without special permission; if permit request complies with ordinance, it must be granted at staff level.

24
Q

What is a conditional use?

A

Granted for a specific use on the property subject to agreed upon criteria; must go before an administrative body; staff cannot grant use; must be substantial evidence

Substantial Evidence – a reasonable person could determine that it is OK; more than a chinchilla; not very much

25
Q

What is a variance?

A

Variance – permission for an exception to certain dimensional requirements of the zone due to unnecessary hardship; provides relief to individual property owners while protecting the surrounding properties
o Unnecessary hardship
o Practical Difficulties
o Needed to enable permitted use
o Won’t alter or change the character of the surrounding area
o Least Intrusive Solution

26
Q

Qualifiers of a variance?

A
  • Unique to that Property
  • Physical to that Property
  • Cannot Alter Character
  • Unnecessary Hardship
  • Least Intrusive Solution
  • No Alternative Method
  • Necessary to Enable Use
  • No Adverse Impact to Neighbors
27
Q

What is a non-conforming use?

A

• Non-Conforming Use – use that was once acceptable (when developed) but becomes non-conforming when there is a zone change

28
Q

What does it take to create a non-conforming use?

A
  • Change in the Zoning
  • Established Use at time of zoning change
  • Extent of Non-Conforming Use
  • Terminal Use – no abandonment of use
  • Nuisance – is the use now a nuisance?
29
Q

What constitutes an abandonment of a non-conforming use?

A
  • Intent to Abandon
  • Failure to Act
  • Implication of Lack of Interest

o Abandonment – intent to abandon or failure to act; some act that shows lack of interest

30
Q

What is the rule of abandonment of a non-conforming use?

A

intent to abandon or failure to act; some act that shows lack of interest

31
Q

What is an expansion of a non-conforming use?

A

To physically or temporally grow or add on to an existing non-conforming use. There are laws that inhibit or prohibit expansion (physical) or extension (time).

32
Q

What is the rule of amortization of a non-conforming use?

A

Use must end at a specific time define by ordinance; phases out the use over time; must balance.

33
Q

What are the factors in determining the validity of an amortization of a non-conforming use?

A
  • Does Public Gain outweigh the property owner’s loss?
  • Has owner re-cooped economic loss/value/investment?
  • What is the Useful Life?
  • Legislative in Nature
  • Non-Discriminatory
34
Q

What rule of an accessory use?

A

must be reasonably related to the primary use; essentially the same for Home Occupations

35
Q

What is the suitability analysis for an accessory use:

A
  • Incidental (smaller)
  • Subordinate (secondary)
  • Customary (reasonably connected to primary)
36
Q

Subdivision

A

The regulation of the division of land into building lots.

37
Q

Subdivision Regulation Process

A 
Sub-Division Regulation – process of community building that permanently affects the form, quality and life of a community; regulations that protect long-term interest of multiple parties; effective instrument of land use control by the community; Reasons:
• Permanence of Development
• Future Services
• Safety
• Health
• Fiscal Considerations
• Accurate Records
38
Q

What is an exaction?

A

Include monetary fees or land set asides that municipalities may impose upon a developer; exactions may consist of land, infrastructure, fees, or any combination thereof; municipality requires something from a developer in return for subdivision or development approval; exactions attempt to balance the burden placed on the municipality for public services by the development and are required for subdivision or development approval.

o Requirements
• Substantive Due Process
• Essential/Rational Nexus

39
Q

Traditional Exaction vs. Non-Traditional

A

o Traditional Exactions – involve the requirement that the applicant set aside land for public use (parks, open space, etc); building roads and infrastructure in compliance with city specifications, installing/connecting to sewer, water, storm drain, etc; paid at time of plat approval

o Non-Traditional Exactions – typically fees for public infrastructure that is or will be located outside of the development property, but the need of which is necessitated by that development

40
Q

Exactions must…

A

Serve the occupants of the sub-division;
Be Reasonable;
Balance Burdens on Municipality with Exactions from Developer

41
Q

What is an impact fee?

A

Fees assessed on developers by municipalities for off-site improvements necessitated by the development/direct result of development; customarily paid at time of building permit issuance

42
Q

What are the limitations/requirements of impact fees?

A
  • Rational Nexus​
  • Development must accrue some benefit
  • Amount of fee must be a Proportionate Share of total costs
  • No fee for Existing Deficiencies
  • Funds must be Segregated from general fund and only used for established purpose
  • Completed in a Reasonable Time Frame
  • Cannot Exceed Cost of Improvements
  • Cannot be used for Operations/Maintenance – only Capital Improvements!
  • Must refund fee for that which is Not Constructed
  • Must be paid as a Condition of Approval
43
Q

What are the steps/analysis required in order to create impact fees?

A
  • Capacity Standards
  • Geographic Parameters must be set for the systems
  • Capacity Analysis of Existing Systems
  • Calculation of anticipated Future Growth
  • Impact of Growth on Existing Capacity
  • Cost Estimates
44
Q

Official Map

A

An accurate detailed survey including public and private works; binding on landowners; lays out street widths, setbacks, etc to reduce the impact of future taking and to facilitate planning for future roads and infrastructure
o Backed by legal sanctions
o Lays out future streets
o Provides locations of public utilities
o Gives direction and pattern of future growth
o Existing streets provide baseline for setbacks and building lines

45
Q

Vested Rights:

A

created for determining when a landowner has achieved or acquired a right to develop in a particular manner; this right is “fixed” and cannot be eliminated or amended
o Substantial Work has Occurred
o Substantial Liabilities
o Done in Good Faith and Reliance Upon representation of officials (permits, etc)
o Intent to Continue
o Two Exceptions in Utah
• Contrary to Public Interest
• If Zoning Change was Already In Process

46
Q

What is a Development Agreement?

A

A bilateral contract between developer and municipality where municipality agrees to guarantee the right to develop to the developer (for a defined # of years regardless of zoning changes)in exchange for a fee or certain negotiated public amenities they may not otherwise be able to legally require; both sides benefit

o Limits
• Must meet substantive due process standards

47
Q

Constitutional Limits on Land Use Regulations

A

o 5th amendment – no person shall be…..deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation
• Land use regulation is invalid if it does not promote a legitimate public purpose
• If private land is taken for public use, just compensation must be paid
o 14th amendment – No state shall make or enforce an law which shall abridge the privileges or immunities of US citizens, nor deny any person of life, liberty or property without due process of law, nor deny to any person equal protection of the laws
o Authority comes from – the people to representatives via the Constitution
o Bill of Rights – keeps the majority in check by protecting the rights of all including minorities with minimum standards
o Functions as a filter between state and federal gov’t

48
Q

What is Substantive Due Process?

A

When government adopts a law through legislative power that has some reasonable relationship to a legitimate public purpose or governmental interest.

o Elements
• Reasonable Relationship
• Legitimate Governmental Purpose – Police Powers (protect health, safety, welfare)
• Not Arbitrary or Capricious

49
Q

Ultra-Vires:

A

beyond the scope of authority or power

50
Q

Dillon’s Rule

A

Under this rule delegations of rule should be strictly construed. This could be a “default” setting. Meaning a power is not included in a delegation unless it is specifically stated.

51
Q

Non-Dillon’s Rule or “Home Rule”

A

This rule came about in response to Dillons rule. This is the opposite. Meaning assume it is included if it is listed and implied. It is included unless it is specifically stated that is not.

52
Q

Wipe-out (takings):

A

A total diminution of value.

53
Q

Why are property rights easily compared to a bundle of sticks?

A

It is a legal construct that has evolved to describe the rights as well as the responsibilities that attend ownership quite independently of whatever “thing” is owned. The bundle of rights also demonstrates the many ways in which ownership can be divided. In this sense, the concept works to illustrate both tangible and intangible property equally well—for example, 100 acres of land or 100 shares in a corporation.

54
Q

Public Use Doctrine

A

States that there may be a limitation on gov’t right of eminent domain; public purpose vs. public use
o Two Criteria
• Rationally Related
• Conceivable/Legitimate public purpose; means are not irrational

55
Q

Equal Protection

A

Rational Relationship Test
Rational Basis Analysis– rational basis attached to a legitimate governmental purpose/reason; no rational basis for the
treatment
Differential Treatment - differential treatment between parties who are similarly situation
Allowed when there is a protected class – race, gender and age

 Strict Scrutiny Test (Equal Protection)
	Disparate treatment
	Because of protected class
	Showed discriminatory intent
	Compelling Gov’t interest
	Least intrusive alternative/least burdensome

• RLUIPA – Test (for discrimination – religious)
o Discretionary – individualizes assessment
o Substantial Burden
• Impacts and burdens individual in a concrete way
• More than a mere inconvenience
o Compelling gov’t interest
o Least intrusive method

56
Q

Commerce Clause

A

Discrimination of out of state commerce; dormant commerce clause forbids states to regulate interstate commerce; special kind of pre-emption; if state doesn’t speak – no pre-emption; action must occur for pre-emption to happen; dormant means Congress has the power even when it doesn’t act; only example of pre-emption contained in the Constitution
o Facial – those that discriminate against out of state interests
o Incident Effects – do not discriminate against out of state interests, but have an incidental effect of interstate commerce
o Discrimination of Out of State Commerce (per se)
o Incidental Impact on Interstate Commerce

• Free Speech (1st Amendment)
o Commercial Speech – regulations are Constitutional if: (First Amendment protects commercial free speech)
• Speech concerns lawful activity(is lawful) and is not misleading
• Seeks to implement the substantial gov’t interest
• Directly advances that interest
• No further than necessary to accomplish the objective
• Non-commercial Speech – allowed if it places the time place manner test
• Time, Place, Manner Regulations Test – OK if
o Justified without reference to the content of the regulated speech
o Serves a significant gov’t interest
o Regulations leaves open ample alternative channels for communication

57
Q

Preemption

A

State takes away the authority of a municipality; has authority to do so because they have the power to give and/or take away; state gives the power and can take it away
o Partial vs. Full
•
o Expressed vs. Implied
• Legislature explicitly states they have the intent of preemption (expressed)
• Legislature doesn’t explicitly address the issue (implied); court is left to determine if intent exists)

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