Land Use Regulation

Question 1

When are zoning regulations constitutional?

Answer 1

when they are not clearly arbitrary and unreasonable and have no substantial relation to the public health, safety, morals, or general welfare

Question 2

rational bais test

Answer 2

(1) A law is unconstitutional only if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare
(2) The governmental action or legislation must be rationally related to a legitimate governmental interest

Question 3

Strict Scrutiny Test

Answer 3

(1) Applies when a law discriminates against a suspect class or impairs a fundamental right
(2) A law is constitutional only if it is narrowly tailored to accomplish a compelling state interest.

Question 4

when can a zoning law be unconstitutional?

Answer 4

when the facts demonstrate that no practical use could be made of the plaintiff’s property and the zoning did not in fact promote the public health, safety, or welfare

Question 5

Components of a typical zoning ordinance

Answer 5

1. text of the ordinance

2. map that implements the ordinance

Question 6

What is a nonconforming use?

Answer 6

a property that existed prior to the zoning ordinance and uses the land in a way the new ordinance prohibits

Question 7

Can they be expanded?

Answer 7

not usually; ordinary repairs are permitted but major repairs or expansions are not

Question 8

Are intensifications permitted?

Answer 8

Yes, an intensification of nonconforming use is permissible so long as the nature and character of that use is unchanged and is substantially the same.

Question 9

Reasons for allowing non-conforming uses:

Answer 9

(a) Frustrates the expectations of people who invested in a previously legal use: (1) general political discontent and (2) risk of regulatory takings claims in extreme cases
(b) expectation that nonconforming uses will fade away as they become out of sync with the neighborhood

Question 10

Expansion v. Intensification Example

Answer 10

Expansion: a bakery owner wants to build an additional building to the premises for the bakery (Result: more fumes - unlawful)

Intensification: a bakery owner wants to extend hours from a 2 a day to 20 a day (Result: more fumes and noise - lawful)

Question 11

Ways to lose nonconforming status

Answer 11

Abandonment
Discontinuance
Termination

Question 12

Abandonment Elements

Answer 12

(1) landowner intends to relinquish his right to the use

2) and voluntarily ceases the use for a set period of time (usually 30 days to 2 years

Question 13

Terminate Elements

Answer 13

(1) by destruction of the structure housing the use
(2) if the use is a nuisance or
(3) by eminent domain

Question 14

What is amortization?

Answer 14

allowing a nonconforming use to continue until a property owner gets back approximately their initial investment in the property before terminating the right to use the land in a nonconforming way.

Question 15

What if you are building/expanding DURING a zoning change?

Answer 15

most jurisdictions provide that parties currently building or expanding have vested rights and protections if they have (1) acquired necessary permits and (2) spent a substantial amount to of money on good faith reliance

(some jurisdictions do not require permits and only require substantial expenditures in the project.)

Question 16

2 Parts of a Zoning Amendment

Answer 16

Text and Map

Question 17

What level of scrutiny is used to evaluated zoning amendments?

Answer 17

Rational Basis

Question 18

Exceptions to using Rational Basis

Answer 18

Allegations of Spot Zoning

Question 19

What is Spot Zoning

Answer 19

(a) singles out a small parcel of land for different treatment
(b) primarily for the benefit of the private owner
(c) in a manner inconsistent with the general plan for the community

Question 20

Who provides variances?

Answer 20

administrative agency (zoning boards)

Question 21

Variances public policy

Answer 21

should not be contrary to the public interest, where owing to a special condition a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done

Question 22

For a variance to be valid, a owner must show unnecessary hardship by showing:

Answer 22

1. unique physical circumstances or conditions
2. because of physical conditions a variance will be necessary to enable the reasonable use of the property
3. unnecessary hardship was not created by the applicant
4. variances is the minimum necessary to afford relief

Question 23

Variance Rule

Answer 23

a board may grant a variance where it is necessary to enable a reasonable use of the property

Question 24

2 Types of Variances

Answer 24

1. Area variance

2. Use variance

Question 25

Area Variance

Answer 25

modification of lot size, set back, height, etc.

Question 26

Use Variance

Answer 26

modification of the uses that are permitted on the property

Question 27

Home Occupation Elements

Answer 27

1. No person other than family members engaged in occupation
2. Occupation is subordinate to home use, and only takes up to 25% of floor area
3. No change in appearance to building
4. Not conducted in accessory building
5. No excess traffic or parking
6. No obnoxious sounds, glare, or odor

Question 28

Can local governments mandate solely based on aesthetics and not just value?

Answer 28

Yes because Police Powers

Question 29

Can you ban political signs from residential neighborhoods?

Answer 29

Na man.