Real Property- Land Use

Question 1

What are the basic principles of zoning?

Answer 1

State and local governments may regulate the use of land through zoning laws.
o Zoning laws are enacted for theprotection and safety of the community.

Question 2

Where does the authority to enact zoning laws come from?

Answer 2

 States have authority to zone through police powers.
 Local governments get power to zone through specific enabling acts.

Question 3

What is the objective of zoning laws?

Answer 3

Segregate incompatible uses from being developed in the same area
(e.g., residential v. commercial and industrial)

Question 4

What are the two types of zoning?

Answer 4

Cumulative zoning: The traditional approach in which residential use is permitted
everywhere, commercial use is restricted to some areas, and industrial use is allowed in the
fewest areas. (majority)
o Mutually exclusive zoning: Some jurisdictions have developed an approach where only one
type of use is permitted by zone. (minority)

Question 5

What happens when there is an existent use and the zoning changes?

Answer 5

Existing Nonconforming Properties
When zoning is changed and a structure does not satisfy the zone’s requirements, it is called a
“nonconforming use.”
o The goal of the property owner is to get the nonconforming use
grandfathered in.

o Vested rights: If the project is in process when the change happens, the developer must
have the proper building permits by the time the ordinance takes effect. The developer
must also demonstrate the project was in good faith.

o What if…?
 Owner wants to expand the nonconforming use? This is generally
not allowed.

 The nonconforming owner switches to another nonconforming use?
not allowed
 The nonconforming owner transfers the property to a new owner?
allowed

Question 6

What happens if an owner wants to make changes to the use after the zoning has been approved?

Answer 6

This is called a variance, which is essentially permission to violate zoning rules.

Question 7

What is the applicable standard to request a variance?

Answer 7

The person applying for a variance must show ALL of the following:
 Compliance would create unnecessary hardship.
 The hardship arises from circumstances unique to the
property;
 The owner did not create the hardship;
 The variance is in keeping with the overall purpose of the
ordinance; and
 The variance will not cause substantial harm to the
general welfare.

Question 8

What is a private nuisance?

Answer 8

Private nuisance
o A substantial and unreasonable interference with another individual’s use or enjoyment of his property.

o Substantial: One that would be offensive, inconvenient, or
annoying to an average person in the community.
o Unreasonable: The injury outweighs the usefulness of the
defendant’s actions.

Question 9

What is a public nuisance?

Answer 9

o Unreasonable interference with the health, safety or
property rights of the community.
o Private party: Must show that she suffered a different kind of
harm than the rest of the community.

Question 10

What are the remedies against nuisances?

Answer 10

Usual remedy is damages;
o If money damages are inadequate or unavailable, the court can impose
injunctive relief.

Question 11

What are riparian rights? (water rights)

Answer 11

Riparian Rights
o Doctrine of riparian rights holds that landowners who borders_
a waterway owns the rights to the waterway. The right depends upon whether the
landowner is located near the water.

o Riparians share the right to reasonably use of the water, such that
one riparian is liable to another for interference with the other’s use.

Question 12

What is prior appropriation concerning water rights?

Answer 12

2. Prior Appropriation
   o First in time, first in right: The first person to use the
   water, regardless of where their land is located, has the right to the water.

o Beneficial use: In a prior appropriation jurisdiction, the user must put the water to a
beneficial use. Any productive use satisfies this standard.

Question 13

What are lateral support rights?

Answer 13

o A neighboring landowner cannot excavate so as to cause a cave
in (i.e., subsidence) on an adjacent owner’s land.

Question 14

What are the applicable standards to damages when excavating?

Answer 14

Applicable standards:
 Did the neighbor’s buildings (structures) contribute to the cave in? If so, the standard to
apply to the one excavating is negligence.

 What if the neighbor’s buildings did not contribute to cave in? The standard to apply is
strict liabilty.

Question 15

What are subjacent support rights

Answer 15

Subjacent Support
o Think mining rights.
o The surface landowners have the right not to have their land subside from the activities of
the owners of underground rights.