midterm 2 Flashcards
What is the definition of a law
a set of rules and regulations that have been created by elected officials that govern social behavior and actions that come with consequences if broken
what are the 4 areas that create a law
- Norms of a Community (Values)
- Agreed upon By Authoritative Body (Jurisdiction)
- Affect Behavior (Subject Matter)
- Enforced Through Sanctions (Consequences)
What is the definition of the practice of law?
- Giving of Advice to Others
- Application of Legal principles to a specific complex set of facts
- In a context where the recipient is likely to act.
What is Police Power
The capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, welfare of their inhabitants. Bound by eminent domain
What is Eminent domain
- Taking of land with just compensation for public use.
2. The right of a government or its agent to expropriate private property for public use, with payment of compensation
Definition of Nuisance
Unreasonably interferes w/ the quiet enjoyment and or use of Property Rights
7 property rights
- Quiet Enjoyment
- Exclusive Possession
- Right to Alienate (Sell, transfer, lease)
- Air Rights
- Subsurface Rights
- Water Rights
- Development Rights
B. Elements of Nuisance (factors that are considered):
- Intentional Action or Condition Creating the Nuisance
2. Unreasonable
In elements of Nuisance, what defines it being unreasonable
a) Context – social context
b) Social Utility—value to society and is it needed?
c) Gravity of Harm – Hardship on the defendant
d) Zoning—context, geography, temporary.
e) Degree of Care
(1) Ease of Cure
(2) Ease of Avoidance
f) Precedent Types
(1) Factual
(2) Legal
What is a Restrictive Covenant
Private contract that runs with the land and restricts use
Elements needed for Restrictive Covenants
- Grantor & Grantee Agree the contract runs w/ the land
- Touching or Concerning Land (Specific properties)
- Privity of Estate - the persons making the agreement can prove a historical chain of ownership
Generally, restricts in some way the bundle of property rights of the land
How does one Terminate Restrictive Covenants
- Purpose has come to an end
- History of Non-Enforcement
- it could be against public policy or found illegal.
D. Restrictive covenants and zoning/land use permitting difference
Restrictive covenants are private and specific whereas zoning and permitting are restrictions based on the community’s health, safety, and welfare and are created with that purpose in mind. The more restrictive standard controls.
Most restrictive rule wins.
What is the Definition of an Easement
is when property rights are transfered or given up so other may use the affected area for a specific purpose
A right to cross or use someone else’s land for a specific purpose.
What is an Express Easement
a contractual easement such as a utility easement.
What is a Prescriptive/Implied Easement
– An easement created from an open, adverse, and continuous use over a statutory period. (Black’s Dictionary).
Factors of an perscriptive Easement
- Long term use- Utah is 20 yrs some areas it is 7yrs
- Open use that adverse (if done w/o owners permission) but not restricted or has nothing done about it
- Claim of Right/Lack of enforcemnet
- Without Consent
What are the different types of Permitting?
- As of use right- allows zoning ordinance
- Conditional Use- Have to meet a number of criteria Designated in zoning ordinance. Typically, church, school, day care
- Variances
What is a Variance
Permission granted on a case by case basis to allow development despite development standards.
What are the 6 elements to argue a Variance
(1) Necessary Hardship
(2) Cannot be caused by owners
(3) Unique physical attribute
(4) Needed
(5) Least intrusive
(6) Character
Definition of a Non-conforming use
Legal when established however new laws make the use inconsistent.
Elements to argue a non-conforming use
- Established - before it changed
- Discontinuance/abandonment:
a) Cessation (In utah one year is required)
b) Intent - Expansion - this is almost always not allowed
- Amortization - is the calculation of an owner’s return in order to justify a forced phase out. The return must be reasonable for the phase out to be legal
Definition of Accessory Uses-(Home Occupations is a type)
Of land that are found on the same parcel as the principal use but are subordinate and incidental. The term “accessory use” also applies to accessory structures.
Elements of to argue an Accessory Use
a) Customary - habitually associated community pattern
b) Incidental - reasonably related to the primary use
c) Subordinate- Smaller than the primary use.
What is the purpose to sub-divide land?
- Implement standards of zoning ordinance.
- Ensure the orderly growth and development of communities.
- preventive measures intended to avert community blight
- land-use controls that govern the division of land
- to support the health, safety, welfare of community.
Definition of Sub-division
. Laws that regulate the breaking up of large pieces of property into smaller legal parcels and determine the location and design of streets and other on-site infrastructure.
What is an Exaction
This for that
is where a government conditions approval upon some discretionary act on land development for some they want for the public good—HSW. Must have a logical nexus
These are requirements of the municipality such as the dedication of streets and infrastructure or the required payment of impact fees that assure the benefits received by the subdivision of land offset the future impact of that subdivision?
What is a dedication
streets or other areas of the subdivision would be dedicated to the city. IE parks
- What standards must exactions/dedications meet to be constitutional?
a) Uncompensated
b) Rational Nexus: Quid ($) pro quo (impact). They have to be logically connected—the quid and quo
c) Roughly Proportional
d) Not arbitrary or capricious
What is a Vested Right
rule of zoning law by which an owner or developer is entitled to proceed in accordance with the prior zoning provision where there has been a substantial change of position, expenditures, or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance
Vesting
- Permit (late vesting states—most states are this way.) Utah is an Early adoption state
- Performed substantial work on the project.
- Substantial defined is subjective.
Late veseting
Substantial funds or plans must have been deployed in order for the permit to vest.
Early Vesting
In Utah (and Oregon) your rights are vested when you turn in a complete application for a permit. Two exceptions: 1. City can show the development will affect the public interest or health, safety, welfare. 2. If a zoning change is already formally in process
What is a Developer Agreement
Agreement between the developer and municipality.
Enforceable bilateral contract between city and developer
Guarantees with the right to develop land in the future
Protects the developer against future zoning changes.
What must Developer Agreements meet
substantive due process
a) Legitimate governmental purpose (to protect health, safety, and welfare)
b) Reasonably debatable that the law will achieve the legitimate government purpose.
c) Action Cannot be arbitrary or capricious
What is Substantive Due process
a) Legitimate governmental purpose (to protect health, safety, and welfare)
b) Reasonably debatable that the law will achieve the legitimate government purpose.
c) Action Cannot be arbitrary or capricious
Limits of Developer Agreements
They have the same limitation as other legislation
Must be for the public good
what is procedural due process
Legislative–Administrative
Making law—- Interpreting or applying law
People affected: Many–Few
Geography: Broad–Narrow
Administration process
city staff implementing city rules.
A. Send a notice
B. They can attend a hearing
C. right to submit evidence- (evidence = fact + criteria)
D. Reasoned Result- criteria + fact=result
Legislative process
Made by vote of elected officials.
A. Referable—referendum that city residents can vote on.
B. Clamour
What is delegation of Authority
As a municipality you can only use the authority granted to you.
Land use regulations cannot exceed the scope of local authority.
Types of Takings
Public use takings
Regulatory takings
Exactions
Dedications
What are public use takings
or eminent domain
a) Serve legitimate Governmental Interest
b) Not Irrational Means
c) Not Without Compensation
What is a regulatory taking
a) Goes too far, results in $
(1) Physical Invasion
(2) 100% wipes out economic value
(3) Penn Central- go through these 3 items if it’s not a total loss:
(a) Impact of regulation- how much $ has been effected
(b) Degree of Investment Backed Expectations - how much skin you’ve got in the game
(c) Character of Regulation- invasion like or standard zoning
what is Inclusionary zoning
A regulation that requires new residential developments to make a certain percentage of the housing units affordable to low- or moderate- income residents. Is an affordable housing tool that links the production of affordable housing to the production of market-rate housing.
how is inclusionary zoning legal
Rational Nexus, for the betterment of the HSW
What is an accessory dwelling
Secondary dwelling units that are allowed by ordinance. Often called “Granny Flats
Factors to determine a accessory dwelling
- Size of unit
- Owner occupied primary residence
- Occupancy maximum
- Parking
- Number of units.
6 factors to make up Reparian water rights
Eastern states
- Acquisition based on land ownership
- Adjacency – Required but severable
- Transportable – must stay in the water shed
- Amount – a reasonable amount
- Abandonment – It goes with the land
- Shortage – reasonableness changes with how much there is
6 factors to make up Prior Approbation water rights
Western States
- Acquisition through intent to divert it out of its course and used for a beneficial use (agriculture, mining, manufacturing,
- Adjacency – Is irrelevant
- Transportable – Can be taken anywhere
- Amount – based on a beneficial use over time
- Abandonment – 8 years of non-beneficial use “use it or lose it”
- Shortage – there are priorities – first in time first in right
