Unit G Law - Land Use Restrictions Flashcards
1
Q
Factors that Influence Property Ownership
A
Income, Supply and demand of housing, Tax benefits, Availability of Financing, Stability, Economy, Housing prices, Rent prices, school districts, commuting, consumer confidence, special needs
2
Q
public land use controls
A
zoning restrictions, building codes, housing codes, subdivision regulations, or other restrictions
3
Q
States ability to “police power”
A
The right of cities and counties to pass land use legislation is granted by the states in the form acts.
4
Q
downzoning
A
re-zoning land to allow three units per acre instead of the ten that was previously allowed
- In most states, the owner of land affected by downzoning is not compensated for the loss in value or loss of profit.
5
Q
upzoning
A
Rezoning for purposes of higher density
6
Q
eminent domain
A
When the government desires that land needs to be acquired for a public purpose, the government will compensate the owner for the physical taking of his land by fair and just compensation.
7
Q
master plan or general plan.
A
Comprehensive planning and growth management focuses on the planning and the implementation of policies to manage land developments and communities within a city or county.
8
Q
comprehensive plan
A
- Designation or urban growth areas
- Contiguous and orderly development and providing urban services
- The location of major public capital facilities
- Transportation strategies and facilities
- Affordable housing needs and distribution
- Facilitation of joint planning
- Economic development and employment
9
Q
Growth management is accomplished through
A
zoning, building codes, subdivision regulations, and environmental regulations.
10
Q
Zoning regulations
A
divide a community into sections or zones that specify the use of property. A parcel could be zoned as:
Residential Commercial Agricultural Industrial Multi- Use
11
Q
Zoning ordinances regulate such things as:
A
- Building height
- Shape and size of a building
- Set back regulations, or how far the building must be set back from the street and back of the property
- Side yard regulations, or how close one building can be to another side building
- Requirements for open undeveloped areas called buffers
12
Q
There can be certain exceptions in the zoning ordinances that include:
A
Variances
Non-conforming uses
Conditional use
Rezoning
13
Q
Variances
A
A variance is granted by local government to build or maintain a structure which falls outside of the zoning ordinance. A variance is granted when the property owner virtually cannot comply with the zoning, or would suffer severe hardship in attempting to comply with the existing zoning. In most circumstances only minor variations to the existing zoning ordinances are allowed.
14
Q
Non-conforming
A
existing structure that now doesn’t meet zoning requirements
15
Q
Buffer zones
A
are an area that provides a separation of two different zones.
Example: A section of land was set aside between an area that was zoned residential, and an area that was zoned commercial.
16
Q
Protective zoning
A
protects the existing owner from other undesirable uses that are not compatible with the existing use.
Example: A small town used protective zoning to protect their historical district from any modern building being built in that area.
17
Q
Directive zoning
A
directs the zoning so that the future zoning will be based on the highest and best use of the land.
Example: A major city had limited land and could not expand since it was bordered on three sides by water, and on the other side by an interstate freeway. It was important to them to make the best use of their existing land so they used directive zoning to accomplish this.
18
Q
Aesthetic zoning
A
is zoning that requires conformity with a certain type of building or architectural style.
Example: Levenworth, a small town in Washington, requires that all of their buildings look like those found in Bavaria. They accomplished this through aesthetic zoning.
19
Q
Incentive zoning
A
specifies that a certain portion of land be devoted to a specific purpose.
Example: A section of a major city had an area that has long time been referred to as “restaurant row”. They used incentive zoning so that a portion of each property in that area had to be devoted to serving food.
20
Q
Bulk zoning
A
is designed to control overcrowding and density. Bulk zoning laws regulate building setback requirements, height limits, and ratio of parking.
Example: A building developer wanted to build a condominium complex. To be able to build this complex in a location where there was already high density, they were required to provide one parking space for every one bedroom unit, and two parking spaces for each two and three bedroom units due to bulk zoning.
21
Q
Cumulative zoning
A
may allow for less restrictive zoning.
Example: Under cumulative zoning a house could be built in a commercial zone, but a factory could not be built in a residential zone.
22
Q
Inclusionary zoning
A
also known as inclusionary housing, is a term which refers to ordinances that require a given share of new construction to be affordable by people with low to moderate incomes. Typically, an inclusionary policy will require new residential developments to include a percentage of affordable housing units as a condition of development approval.
Example: A developer wanted to build a housing development in Portland. The developer was required to build some small apartment units which were more affordable than the condominiums that were being built on most of the site.
23
Q
Exclusionary zoning
A
may prohibit certain uses in an area.
Example: No apartment or condominiums in a suburban area.
24
Q
Spot zoning** EXAM
A
occurs when a small area of land in an existing neighborhood is placed in a different zone from that of neighboring property. In some states, the courts have found spot zoning illegal on the ground that it is incompatible with the existing land use zoning plan or in an overall zoning master plan for the community.
Example: A park or school might be allowed in a strictly residential area if it serves a useful purpose to the neighborhood residents.
25
A zoning ordinance must have the following to be valid and enforceable in a court of law:
- They must serve to promote the public health, safety and welfare
- They must be exercised in a reasonable manner according to due process
- They cannot be retroactive
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non-conforming use permit
is usually issued when a property was being used for a particular purpose prior to zoning or prior to a zoning change.
---allowed to remain under a GRANDFATHER CLAUSE in the zoning ordinance.
27
Usually a non-conforming use permit contains certain restrictions for the property owners such as:
- A time limit in which to conform to the new zoning (example would be 12 years from the time of the zoning)
- Prohibition of rebuilding if the property is destroyed
- Prohibition of enlarging the structure
- Prohibition of continuance of the permit if the building is abandoned
28
Variance
This is for new construction. A variance is a deviation from the zoning that is granted because strict enforcement would result in undue hardship on a property owner.
-- An owner generally needs to prove that the zoning will prevent any reasonable use of the land, not just the most profitable use.
29
Special Use Permit
A special use permit allows a specific exception to the zoning regulations from a list of acceptable exceptions for a particular parcel of land.
30
The National Environmental Policy Act (NEPA)
requires federal agencies to integrate environmental values into their decision making processes by studying the environmental impacts of governmental proposed actions and reasonable alternatives to those actions.
--administered by the Environmental Protection Agency (EPA)
31
The Federal Water Pollution Control Act, also known as the Clean Water Act
sets standards for water quality and wastewater treatment processes. States are required to meet these standards.
32
CERCLA - The Comprehensive Environmental Response, Compensation and Liability Act
CERCLA, commonly known as the "SUPERFUND", was enacted by Congress on December 11, 1980.
33
CERCLA
This law created a tax on the chemical and petroleum industries, and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.
34
CERCLA:
a) Established prohibitions and requirements concerning closed and abandoned hazardous waste sites;
b) Provided for liability of persons responsible for releases of hazardous waste at these sites; and
c) Established a trust fund to provide for cleanup when no responsible party could be identified
35
CERCLA authorizes two kinds of response actions:
a) Short-term removals, where actions may be taken to address releases or threatened releases requiring prompt response.
b) Long-term remedial response actions, which permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening.
36
National Contingency Plan (NCP).
The NCP provided the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants.
37
Federal Coastal Zone Management Act (known as CZM, or CZMA)
assists coastal states in developing and implementing programs for managing their coastal lands.
38
Resource Conservation and Recovery Act (RCRA)
deals with hazardous waste management. Their goal is to protect human health, protect the environment from hazardous waste, the conservation of energy and natural resources and waste reduction. Some states have enacted legislation that regulates and protects the environment in their own state.
39
The purpose of building codes
is to protect the public from unsafe and substandard construction. The intention of the codes is to set standards for methods of constructions and materials used in construction
40
Enforcement Program
Enforcement efforts are an integral part of the division's overall services to the consumer, and support the division's mission to promote public safety and good economic development.
41
The division's enforcement program focuses on the following:
- -Concentrating the state's enforcement actions on life-safety, and on licensing violations
- -Working with local jurisdictions so they can emphasize enforcement of permits
- -Implementing the joint authority of Construction Contractors Board and the Building Codes Division to more effectively sanction violating contractors
- -Implementing pilot enforcement programs across the state to test different enforcement models
- -Broadening use of a "ticket book" to streamline enforcement efforts in local communities and to improve on-site compliance
- -Expanding the division's enforcement presence in local communities
42
Private Restrictions
Non-governmental restrictions on the property
43
Private Land Use Control Through Deed Restrictions
| Restrictions
may be placed in a deed to control use of the property. These restrictions may remain on the property indefinitely and will be binding on all future owners.
44
Private deed restrictions could be created by:
a) A seller (grantor) placing deed restrictions on a deed at the time they sell a property.
b) A person who places the deed restrictions in a will.
c) A developer, at the time they file a subdivision plat. These may be stated on a recorded declaration often referred to as Covenants, Conditions and Restrictions (CC&Rs)
d) A landlord (lessor) in a lease to restrict the tenant's (lessee's) use of the property.
45
Case Summary Shelley v. Kraemer 1948
Accordingly, State enforcement of restrictive covenants based on race denies the equal protection of laws in violation of the Fourteenth Amendment.
46
Private deed restrictions could be COVENANTS or CONDITIONS
Most the restrictions found in the recorded CC&Rs are COVENANTS
47
A covenant is
a promise to not violate the restriction. It may be a promise to perform a certain act, to do something in the future, or to refrain from performing a certain act.
48
Examples of covenants are:
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Style of the buildings
Set back requirements from the front street
Area required between homes
Exterior paint colors
Restriction on having livestock
Size and types of fences
Size and number of outbuildings
Type of vehicles allowed in driveways
Restrictions on satellite dishes
Restrictions on charcoal barbeques
Restrictions on running a commercial business out of the dwelling
Restrictions on temporary structures, such as a free standing carport etc.
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49
condition
A private restriction which states that a violation will cause the title to the property to revert to the grantor or his successors in interest.
50
condition details...
The grantor or his successors may declare a forfeiture of title and sue to recover ownership or possession of the property if there is a violation. A condition in a deed is a reversion clause, in that it reverts back to the grantor.
51
Restrictive covenants
are deed restrictions that may apply to a group of homes or lots in property that's part of a specific development or subdivision. They are normally put in place by the original developer.
52
The Problem with Deed Restrictions
There may be problems with deed restrictions in that they do not have a third party that can be designated to monitor and enforce the restriction. The law limits who can enforce restrictions and the length of time.
53
How to enforce deed restrictions
You must have an official third party that will monitor, instead of just verbal agreemen betwwen buyer/seller
54
conservation easement
is a voluntary, legally binding agreement that limits certain types of uses or prevents development from taking place on a piece of property now and in the future, thus protecting the property's ecological or open space worth.
55
Subdivision Regulations
Local government has the authority to regulate the separation of land into smaller blocks or parcels. They may adopt standards and procedures governing approval of plats for a subdivision.
56
A plat includes...
a final map and the descriptions, locations, specifications, dedications, and information concerning a subdivision.
57
platt map requirements might include...
- Location of utilities
- Minimum or maximum lot size
- Location of streets and a description of the streets
- Dedication to the public for streets, parks and water run-off storage containment to avoid flooding and other drainage issues
- Dedication to the public for greenbelts for natural habitat
- Dedication of parks and recreational areas
- Utility systems such as water supply, sewer systems and underground utilities
- Easements on each parcel for utilities
58
The Interstate Land Sales Full Disclosure Act (ILSA)
is a federal law which was passed in the late 1960s to protect buyers of out-of-state land. Those were the days when parcels of vacant land might be advertised to far-flung speculators as promising wonderful development opportunities and high profits. Once the land was purchased and the purchaser travelled to the location of the property to view it for the first time, they find it be a worthless isolated piece of desert or swamp land with little or no potential to access the resources (such as water and utilities) needed to sustain a successful development project.
59
One particularly important exemption which may be widely misunderstood is the two-year exemption.
A developer does not need to register with HUD and provide a Property Report if the developer provides a written commitment to build the development within two years after the date the buyer signs the purchase and sale agreement.
The "two year" exemption is not as straightforward as it may seem, because while developers may seek to qualify any two year commitment by limiting the buyer's remedies in the event that the two-year deadline is missed. Courts are rather strict in their interpretation of the exemption such that the developer may actually lose the exemption if it qualifies the two-year deadline in such a manner.
60
ISLA is administered by the office of Interstate Land Sales Registration though the U.S. Department of Housing and Urban Development (HUD),
Exceptions to ISLA include:
- Subdivisions with fewer than 25 lots
- Subdivisions in which each lot has at least 20 acres
- Lots sold only to contractors, builders or developers
- Lots on which a building has already been erected or where a sales contract will obligate the seller to build within two years
- Lots leased for a term of no more than five years
61
State laws for developers
These laws require developers to register the development (unless exempt) within the state prior to marketing the land or condominium development, and to fully disclose all relevant material facts concerning the property that are necessary to make an informed buying decision.
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When land is divided into TWO or THREE units, the process is called
partitioning and the individual units are called parcels.
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subdividing
When land is divided into four or more units and the individual units are called lots.
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When land is divided into TWO or THREE units, the process is called***TEST
partitioning and the individual units are called parcels.
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subdividing***TEST
When land is divided into four or more units and the individual units are called lots.
66
By state law, there are exemptions for the definition of a PARTITION (not subdividing):
a) A division of land resulting from a lien foreclosure of contract for the sale of real property or the creation of cemetery lots
b) An adjustment of a property of a common boundary where an additional unit of land is not created and where the existing unit of land
reduced in size by the adjustment complies with all applicable zoning ordinances
c) A division of land resulting from the recording of a subdivision or condominium plat
d) A sale or transfer by a private person to a public agency
e) A sale or transfer of excess property resulting from the acquisition of land
f) A sale or transfer as part of a property line adjustment
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*****TEST***Local government regulates partitions and subdivisions and approves of any street or roads created for the purpose of partitioning.
NOT THE STATE!!!
68
Local governments authority on subdivision and partition plats and the requirement associated with them. This may also include:
a) The placement of utilities, width and location of streets, minimum or maximum lot sizes and other requirements needed to maintain the flow of traffic
b) To prevent damage from fire, flood, wind, landslides, pollution or other dangers
c) Maintain a certain level of density for land
d) Assist in the progress of adequate transportation, water supply, sewerage, drainage, education, recreation or other needs
--Before regulations may be adopted the planning commission must hold public hearings after which the planning commission has 60 days to make recommendations to the governing body.
69
Application Process for dividing land
The developer or their representative will be required to make a written application to the local government for a partition or subdivision. The following was taken from ORS 92.010 which furnishes some good definitions for platting and subdividing:
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Lot
means a single unit of land that is created by a subdivision of land
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Parcel
means a single unit of land that is created by a partition of land
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Partition
means either an act of partitioning land or an area or tract of land partitioned
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Partition plat
includes a final map and other writing containing all the descriptions, locations, specifications, provisions and information concerning a partition.
74
Partitioning land" means dividing land to create not more than three parcels of land within a calendar year, but does not include:
(a) Dividing land as a result of a lien foreclosure, foreclosure of a recorded contract for the sale of real property or the creation of cemetery lots;
(b) Adjusting a property line as property line adjustment is defined in this section;
(c) Dividing land as a result of the recording of a subdivision or condominium plat;
(d) Selling or granting by a person to a public agency or public body of property for state highway, county road, city street or other right of way purposes if the road or right of way complies with the applicable comprehensive plan and ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (2)(p) to (r) and 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (2)(q) to (s). However, any property sold or granted for state highway, county road, city street or other right of way purposes shall continue to be considered a single unit of land until the property is further subdivided or partitioned; or
(e) Selling or granting by a public agency or public body of excess property resulting from the acquisition of land by the state, a political subdivision or special district for highways, county roads, city streets or other right of way purposes when the sale or grant is part of a property line adjustment incorporating the excess right of way into adjacent property. The property line adjustment shall be approved or disapproved by the applicable local government. If the property line adjustment is approved, it shall be recorded in the deed records of the county where the property is located.
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Declaration Required to Subdivide or Partition Property
(1) In order to subdivide or partition any property, the declarant shall include on the face of the subdivision or partition plat, if a partition plat is required, a declaration, taken before a notary public or other person authorized by law to administer oaths, stating that the declarant has caused the subdivision or partition plat to be prepared and the property subdivided or partitioned in accordance with the provisions of this chapter.
Any dedication of land to public purposes or any public or private easements created, or any other restriction made, shall be stated in the declaration
(2) If the declarant is not the fee owner of the property, the fee owner and the vendor under any instrument of sale shall also execute the declaration for the purpose of consenting to the property being subdivided or partitioned
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tentative plan
The application is accompanied by a map, called a tentative plan, showing the general design of the partition or subdivision. A local governing body may delegate its power to approve applications for subdivisions and major partitions to its planning commission, or to a city or county official.
The proposed subdivision name cannot be similar to or pronounced the same as the name of another subdivision in the county unless the land is contiguous to and platted by the same party that platted the previous subdivision,
77
Before granting FINAL PLAT APPROVAL...
the local government will determine that the plat complies with applicable zoning ordinances and regulations, and is in substantial conformity with the APPROVED TENATIVE PLAN.
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dedication****TEST******
which is the act of setting aside property as streets, utility easements, school sites, parks, or recreational facilities for the public. Dedication can be provided on the plat or by a separate dedication document on a form provided by the local government. Explanations of all common improvements must be recorded, as these explanations show the exact intention of the dedicator.
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owner of subdivision still retains ownership of dedicated land
AKA. still has a fee interest in the property
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FINAL PLATT
must be recorded with the county
- platt type
- platt name
- location and all that stuff
81
At the time of recording a subdivision or partition plat
the person offering it for recording shall also file with the county surveyor and with the county recording officer,
82
Recorded plats may be AMENDED or changed by an AFFIDAVIT OF CORRECTION
to show courses or distances that were omitted from the plat, to correct errors in the courses or distances, in the property descriptions specified on the plat, or to correct any other errors or omissions from the data shown on the final plat.
- The amendment cannot be made to change courses or directions in order to change the lot configurations.
83
Sales of Partitions and Subdivisions
The law restricts certain sales activity involving partitions and subdivision. A subdivider may negotiate a lot sale until there is a TENATIVE PLAN APPROVAL.
- This means he may advertise, solicit or promote the sale of the land but may not execute a binding sales agreement.
- only sell once you have full approal of final platt
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Oregon Condominium Act
regulates the creation and marketing of condominiums. It applies to all property located in Oregon state which is in the condominium form of ownership. This also applies to condominiums located outside of Oregon, but are sold in Oregon
85
Condominiums
The distinguishing feature of these units is that each unit is sold separately, but the land is owned by all of the owners in common.
--This is different from a Planned Unit Development (PUD) where each lot is sold separately and where only some areas are owned in common.
86
Purchasers of condominiums receive a deed that grants them fee title to the air space within their unit and an undivided percentage interest in common with the other unit owners in the common areas. These common areas are referred to as
----which would be all portions of the condominium development other than the individual living units. These common elements may be classified as general or limited.
common elements
87
General Common Elements are areas that can be used by all unit owners. They are not part of the individual condominium unit. Examples might include:
The land on which the condominium development is located
Yards and gardens
Parking areas
Stairs
Fire escapes
Elevators
Air ducts
Central utility areas for electricity, gas, water, heating, air conditioning, water disposal and incinerating
All elements used for the construction of the building
Recreational areas such as pools, saunas, hot tubs, tennis courts, basketball courts, clubhouses and gym areas
Central laundry facilities
88
Limited Common Elements
are areas that are reserved for the use of one unit or more. They are not part of the individual condominium unit.
Examples might be:
Balconies or patios
Reserved parking spaces
Reserved storage areas
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declaration
filed to establish a method of allocating these common interests. A unit consisting of two bedrooms might have a larger percentage interest in the common areas than a unit that has one bedroom and has smaller square footage. The declaration also gives each unit owner voting rights in the HOA. Monthly association dues are established by the HOA.
90
special assessment.
If there is an unforeseen repair or maintenance item that is substantial and the reserves of the HOA cannot cover the cost, then the unit owners will be given a special assessment.
--The non-payment of special assessments of property taxes may become a lien on the property if not paid.
91
A unit owner is personally liable for all assessments imposed on him or assessed against the unit by the homeowners association. However, when a purchaser gets title to the unit as a result of foreclosure of the first mortgage or trust deed, that purchaser and his successors and assigns are not liable for assessments imposed prior to his acquisition. Those unpaid assessments will be a common expense shared by all the unit owners including the purchaser.
- basically if you buy a foreclosed on condo, you're not responsible for your successors unpaid fees
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declaration/declarant
A person must record a declaration in every county in which the condominium property is located. The declaration is an extremely important condominium document because it creates the condominium’s covenants, conditions and restrictions (CC&Rs) for the condominium. When recorded, it converts the property to a number of single estates with a deed. The person who records a declaration is called a DECLARANT.
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Declaration Amendments
sually an amendment to the declaration is not effective unless it is approved by at least 75% of the unit owners, the real estate commissioner and county assessor, and is certified by the chairperson and secretary of the unit owners’ association, acknowledged and recorded.
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Recording
Any declaration, supplemental declaration, or amendment must be approved in writing by the county assessor and tax collector and the Real Estate Commissioner before it can be recorded.
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Reserve Account
The declarant must establish a reserve account for replacement of common elements including exterior of painted common elements, and for any other items as required by the declaration or bylaws. The need for replacement is based on among other things normal wear and tear of the elements. The reserve account, established in the name of the HOA of the unit owners, must be funded by monthly HOA dues from the individual unit owners. These monthly assessments are the property of the HOA and are not refundable to sellers of units.
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Unit Description
The declaration will provide a description of each unit and all buildings including the number of stories and basements of each building, and the total number of units. It will also contain a unit designation such as a number and/or letters designating the unit, a description of the boundaries and square footage of each unit, and any other information necessary for proper identification.
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The unit includes within its boundaries:
Nonbearing interior partitions
All spaces
Windows and window frames, exterior doors and door frames
All fixtures and improvements
Outlets for power, light, gas, hot and cold water, heating, refrigeration, air conditioning, and garbage disposal
Plumbing
All lath, furring, wallboard, dry wall, paneling and green board
Tiles, granite, marble
Wallpaper, plaster and paint
Flooring
Any materials that are part of any of the finished surfaces
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A unit deed
entitles the owner to the exclusive ownership and possession of the unit. It contains:
The name and description of the property
The recording index numbers and the date of the recordation of the declaration
Any applicable supplemental declaration amendments
Any other details which the grantor and grantee consider desirable
The unit designation such as the building or unit number
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Condominium Conversions and Tenants
Under Oregon Law, landlords have certain obligations to their tenants when they are planning to convert apartment rentals to condominiums.
- 120 notice
- first opportunity to buy
- cant show units to perspectives without permission
