Possessor's Rights, Eminent Domain, & Zoning Flashcards
What is a possessor’s right to land?
The possessor of land has the right to be free from trespass and nuisance.
What is trespass? How do you remove a trespasser?
Invasion of land by tangible physical object. To remove a trespasser bring an ejectment action.
What is a private nuisance?
Substantial and unreasonable interference with another’s use and enjoyment of land. Note: Unlike trespass, nuisance does NOT require tangible physical invasion. Thus, noise and odors could
give rise to a nuisance but not a trespass. Hypersentive plaintiffs lose. A nuisance claim cannot be hypersentive.
What is eminent domain?
Government’s 5th Amendment power to take
private property for public use in exchange for just compensation.
What are explicit takings?
Explicit takings: acts of governmental condemnation. For example, the government condemns your land to make way for a public highway.
What are implicit or regulatory takings?
Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect. Example: You buy land in North Carolina for development. Three months later, the government imposes a ban on all development. Note that you have not been the target of an overt condemnation. Still, you argue that the regulation is an implicit taking. It has worked an economic wipeout of your investment.
What is the remedy for a regulatory taking?
The government must either: (1) compensate the owner OR (2) terminate the regulation and pay the owner damages that occurred while it was in effect.
What is zoning?
Pursuant to its police powers, government may enact statutes to reasonable control land use.
What is variance?
The principal means to achieve flexibility in zoning. The propoenent must show (a) undue hardship AND (b) that the variance won’t decrease neighboring property values. The variance is granted or denied by administrative action (typically a zoning board).
In regards to zoning, what is a non-conforming use?
A once lawful, existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking.
What are exactions? When are they deemed unconstitutional?
Exactions are those amenities government seeks in exchange for granting permission to build. To pass constitutional scrutiny, these exactions must be reasonably related in nature and scope to the impact of the proposed development. Exactions are inherently suspect. If they are not, the exactions are unconstitutional.
Example: You are a developer seeking permission to build a 200- unit residential development in the town of Utopia. The town tells you that it will grant you the requisite permit if you agree to provide [several new streetlights, a small park and wider roads] [exactions]. To pass constitutional scrutiny, these exactions must be reasonably related in nature and scope to the impact of the proposed development.
