Lectures 5-9 (Nuisance, Zoning, Governmental Powers)

Question 1

What is the basis for nuisance law?

Answer 1

o Uses for zoning and provides recourse when zoning produces the wrong outcome
 Cannot apply if event only happens once
 Limitations in which it cant reach the previous owner, and is generally against adjacent land uses

Question 2

If the act is permitting by zoning then….

Answer 2

it is not a nuisance per se, nor a nuisance in fact

Question 3

Nuisance per se

Answer 3

The “thing” itself is producing the nuisance (a white house in violation of an ordinance)

Question 4

Nuisance in fact

Answer 4

The surroundings produce the issue/ the circumstances around it that produce an issue (industrial crop farm close to a neighborhood)

Question 5

How is a nuisance remedied?

Answer 5

1) determine if the nusiance is public or private
2) if it is public, then it depends on the state statute or a court order to file an injunction
3) if it is private then harm needs to be determined and what damages are involved

Question 6

Nuisance law corrects in what way? What are some limitations of this law?

Answer 6

Can only occur once
Limitations do not stretch beyond current owner
its duration/ having an effect on are person and it doesn’t have to injure property rights.
They cannot be repeatedly brought if there in an injunction, unless damages are granted and the nuisance continues.

Question 7

What is a wipeout?

Answer 7

Any decrease in the value of real estate other than one caused by the owner or by general definition. Decreases in value cause by the owner are not wipeouts

Question 8

What is a windfall?

Answer 8

a windfall is an increase in the value of real estate—other than caused by the owner or by general inflation.

Question 9

Current forms of exclusionary zoning

Answer 9

o Overt Zoning by race, slighting more subtle zoning based on a survey of ownership bu race and protection of white single family neighborhoods from industrial, liquor stores, and bars which were allowed.
o Income floors- Expectation of paying a certain level of income taxes, minimum lot sizes and prohibitions on multi-family housing.

Question 10

What constitutes a family?

Answer 10

Ordinances usually define a single family as those who are related to, but in instances can be seen as a recognizable bond characteristic of a single unit.

Question 11

Enterprise Zones

Answer 11

different than traditional Euclidean zones in which they have been designated as economically deteriorating areas in which there are governmental incentives for boosting economic activity.
 P3/TIF/BID, etc.

Question 12

Buffer Zoning

Answer 12

Land on the periphery of the zone in which the area can suffer more adverse effects from neighboring uses in a more intensive area. To mitigate this, buffer zoning puts the next lower more intensive zone as the adjacent zone.

Question 13

Agricultural Zoning is ……..

Answer 13

nonexclusive and nonintensive, with farmland protection zoning being an exclusive act. All zones permit zone form of agricultural use, and agricultural zoning can be used as a buffer zone.

Question 14

What are the 4 main types of Zoning Controls?

Answer 14

Height, Setbacks, Bulk and Physical

Question 15

What is Bulk Limitations of zoning?

Answer 15

A zoning envelope for buildings by horizontal measurement, usually seen as: minimum lot size, minimum frontage of lots, lot coverage, setbacks, FAR

Question 16

What are some flexible zoning techniques, and why are they necessary?

Answer 16

Cluster development, Floating Zones, Conditional Zoning, Performance Zoning, PUDs, Overlay Zones, Incentive Zoning and Conditional Use Permits

Flexible Zoning Techniques are important because in the past, there was difficulty in determining the compatibility of different uses.

Question 17

Floating Zone? What type of powers are granted? What is its relation to the comprehensive plan?

Answer 17

An An unmapped district with detailed and conditional use requirements.
The city creates a zone with regular features but must submit an application meeting criteria to utilize, and if the city determines that there is public interest in granting, then “floats down” to the property

 It is a legislative act, but if the ordinance lacks detail then it could be held as unconstitutional. Can also not be in conformance with the comprehensive plan UNLESS it can be proven that it is not arbitrary or apart of a master plan that shows floating zones, to prove that the legislative body has thought them through

Question 18

Conditional Zoning?

Answer 18

Alternative to general use zoning which is (all or nothing). Conditional zoning allows the property to be tailored to a more intensive land use but has conditions limiting the kinds of uses permitted.

Question 19

Performance Zoning?

Answer 19

Specifies a minimum requirement or max limit on effects of a land use in addition to specifying the land use itself.

Question 20

Overlay Zones

Answer 20

An additional set of requirements imposed by the underlying zoning district places a property in two zones simultaneously. Usually for historic preservation or to protect environmentally sensitive land.
 In these zones, neither classification is floating in which the residential and commercial classifications are continued while the overlay imposes municipal controls on the properties within that specific area.

Question 21

Challenges with Overlay Zones?

Answer 21

are usually regarding uniformity in which specific rules cannot be only applied to one typology within the overlay district that do not apply to other zones of the same classification outside of the overlay district. (Arizona Pawn Shop Case)

Question 22

Conditional Use Permits?

Answer 22

: A site-specific control of rezoned land, in which a city is allowing certain uses of the property, but lists conditional that require extra approval such as churches, gun clubs, etc.

Question 23

Spot Zoning

Answer 23

Singles out a small parcel of land for use classification totally different from the surrounding area, to the detriment of other property owners and the benefit of the spot-zoned property owners.

Question 24

Interim Zoning and Moratoria

Answer 24

Zoning adopted on a temporary basis before a permanent zone is adopted. Moratorium is an ordinance that freezes all activity until a permanent zone is adopted.

Question 25

How can interim zoning serve as a growth management tool? What are some impacts of interim zoning?

Answer 25

 Interim zoning can serve as a growth management tool in areas where zoning has not yet been established or development pressures are not as urgent. Often times, this is done to try to prevent development or an ill-conceived idea regarding authority.

Question 26

Favored Status

Answer 26

Enabled by governmental immunity on federal, state, and local government in which the immunity attached based on the purpose of use, not the ownership generally

Question 27

Public Use Zoning, and what are some uses and provide and example of it in action?

Answer 27

Governments can have discriminatory treatment by allowing its own public use and banning similar private uses, or banning all uses then exempting itself from the ordinance.
 If the reasoning supporting the classification in the argument of public v private use is for the benefit at-large the validity can turn on whether the private use is open to the public (think schools! And parks!)
 Religious Uses: Traditionally seen as a benefit, but as churches grow the ability to serve as a community resource is in question.

Question 28

Nonconforming Uses go into effect how?

Answer 28

In order for nonconforming uses to continue, they must be lawfully established at the time the ordinance making them nonconforming takes affect

Question 29

What are the 4 types of nonconforming uses?

Answer 29

Nonconforming buildings, conforming uses of nonconforming buildings, nonconforming uses of conforming buildings and nonconforming uses of land.

Question 30

Contract and Condition Zoning

Answer 30

o You cannot contract your zoning rights away. Generally conditions are permitted for special permits like conditional use permits but they create a question of validity when they are imposed on rezoning.
 The big question is whether or not they serve the public interest and that contract zoning promotes private interest and violates the comprehensive plan
 There MUST be a connection between the activity being permitted and the condition being imposed.

Question 31

What is a SLAPP suit?

Answer 31

Strategic Lawsuits Against Public Participation

Strategic Lawsuits to deter public participation or to retaliate against public participation and are developer generated.
o They invoke the first amendment concerns, if the mere action of the developer filing a lawsuit that can frequently prevent others from continuing to fight the lawsuit. Several states have anti-SLAPP legislation to protect those right to petition without fear of retribution.

Question 32

What is the role of mediation in zoning issues?

Answer 32

 Mediation is typically useful where zoning authorities have discretion with land development requests. But usually only exists in more flexible zoning techniques

Question 33

What is an initiative?

Answer 33

is the proactive placement of a measure on the ballot to downzone before the developer can manifest a vested right. It is used to adopt ordinances or resolutions and is generally perceived as legislative.

Question 34

What is a referendum? What is it used for?

Answer 34

Reactive ballot measure to change rezoned land (which has been upzoned for the developer). It is used to repeal ordinances or resolutions. Not clear if it is legislative or administrative—can be a blurry distinction

Question 35

What is a variance, and how is it enacted in South Carolina? Importantly what are some of the advantages of them?

Answer 35

o Must experience unnecessary hardship and cannot change a use that is prohibited in a zoning district with a variance.
 To receive a variance, one must show a singular disadvantage that is not self-inflicted.
 In South Carolina, the BZA must show through written findings that there are extraordinary conditions on the parcel, no injury to adjcanet parcels and must run with the land and be scrupulous
* Generally faster than a traditional rezoning and cheaper. They must conform or can include appeals for the ADA and can be easily converted to zoning changes if required

Question 36

What is the difference between a variance and a special use permit?

Answer 36

: A variance is a permission to engage in an otherwise prohibited act of hardship. A special permit allows a use specifically authorized by the legislative body.

Question 37

What are examples of legislative actions?

Answer 37

textual or zoning map amendments, proceeding administratively to seek a variance or special permit

Question 38

What is the main concern regarding vested rights?

Answer 38

o When the legislative body changes the law, aa key question is whether the change applies to current development proposals.

Question 39

What is required of a vested right? What is the main concern regarding estoppel?

Answer 39

• Substantial change of position or engages in substantial expenditures
• In good faith reliance
• upon some act or omission of the government
• so that applying a new law would be highly inequitable

Question 40

Estoppel vs Vested Rights

Answer 40

Both are sometimes considered the same, but if the complaint goes beyond the reach of vested rights, then the estoppel defense may be the only option in cases outside of permitting–i.e., the government entered into a contract then rescinded the contract.