land use regulations

Question 1

what is the zoning power

Answer 1

localities have the power to regulate the use of land as part of the police power, this is called zoning

Question 2

what is a comprehensive plan

Answer 2

plan that includes zoning ordinances and permitted uses of the land and a map with growth areas

updated every 5 years

Question 3

who is the zoning administrator

Answer 3

administers the regulatory scheme

enforcement officer who issues violation notices and beings proceedings to compel compliance

Question 4

board of zoning appeals

Answer 4

quasi-judicial body of a locality which has authority to

(1) interpret the zoning ordinance

(2) rule on appeals of actions by zoning administrators

(3) grant variances

–

some localities allow BZA to determine disputed property boundaries or give landowner special use permits

Question 5

what is the planning commission

Answer 5

appointed group that conducts public hearings as to zoning ordinances and map amendments and make recommendations to the governing body of the locality

Question 6

who takes final action on comprehensive plan, zoning ordinances, or map amendments?

Answer 6

governing body, after conducing public hearing

Question 7

when to challenge zoning plan, ordinance or amendment

Answer 7

within 30 days of promulgation

Question 8

process of appeal to BZA

Answer 8

BZA may hear and decide appeals from orders, determinations, etc. by administrative officers who enforce zoning ordinances/scheme

anyone affected may appeal

REQUIREMENTS
- notice of appeal to administrator and the BZAwithin 30 days of the decision

Question 9

what are variances

how to get one

Factors BZA will consider

Answer 9

variance = exception from normal zoning requirements

HOW TO GET ONE – PLAINTIFF MUST SHOW:
(1) strict enforcement of the zoning ordinance would result in undue hardship not shared by other properties in the vicinity

(2) granting the variance will not be detrimental to adjacent property or change the character of the district

CONSIDERATIONS BY THE BZA IN GRANTING OR DENYING:
– strong presumption against granting one to maintain consistent standards
– will grant only when enforcement of the ordinance denies landowner of all possible use of the land [amounting to confiscation violating due process]

[BZA may impose conditions]

Question 10

when will a zoning action constitute a regulatory taking

Answer 10

example: when a landowner holds an extremely generous development right that a new regulation severely detracts from

Question 11

what is conditional zoning

Answer 11

an applicant may seek a “conditional use permit” to undertake a particular form of development or use of the property

if the request is not granted outright, you may submit a “proffer” of conditions to make the proposal more palatable

Question 12

explain what happens when a new zoning ordinance is passed but existing activities/lots do not meet those zoning standards

Answer 12

Those lots, activities, or signs that pre-exist the current ordinance and do not meet current standards are called “lawful nonconforming uses” which are “grandfathered” = they may continue, but may not be enlarged, altered, rebuilt after destruction, or resumed after abandonment [2 years of disuse]

nonconforming uses are disfavored = any grounds for terminating will be pursued

Question 13

when are there vested rights in development plans

Answer 13

GENERAL RULE: never. landowner has no vested right to develop land in accord with prevailing zoning and a change made by the locality will be binding

EXCEPTION: investment in reliance on a significant government action affecting development rights may “vest” development rights when

(1) the locality makes a significant affirmative act supporting a particular planned use of the property

(2) the landowner relies in good faith upon that gov’t act

and

(4) the landowner incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the gov’t act

Question 14

how to challenge a BZA decision

Answer 14

appeal to the circuit court within 30 days after BZA decision
— File petition for a writ of certiorari
[which is a petition to reverse the action of the BZA]

then, may appeal to Court of appeals

Question 15

what may the circuit court do in considering a petition for a writ of certiorari to reverse the BZA decision [procedural things]

Answer 15

review record made before the BZA

take testimony

Question 16

grounds for granting writ of certiorari to reverse the BZA decision

Answer 16

First, a court will consider that zoning laws and decisions by the locality are presumed reasonable and valid

circuit will reverse zoning board if:
(1) petitioner argues misinterpretation of zoning ordinance — reverse if P shows BZA applies incorrect legal rules or was plainly wrong in ruling contrary to purpose and intent of zoning law

(2) petitioner shows, using admin record OR additional evidence, that decision was in error as to factual findings or the sufficiency of those facts to meet standards under statutory scheme [preponderance of the evidence]

Question 17

when will BZA give special use permits

Answer 17

special use permits are presumptively ok but the BZA will typically condition approval on satisfying something else