Zoning Flashcards
Zoning
Zoning is an exercise of the police power. It is granted by statute and zoning decisions must comply with the enabling statute
Zoning enforcement
Properties found to be out of compliance get sent a notice of zoning violation. Usually contains instructions to cease and desist, or instructions on how to modify the property to go back to compliance/cure the violation
Must include info on how to challenge. First appeal is to zoning board, then to a court
If unchallenged and uncured, body can get an injunction, apply civil fines, or require a zoning violation to be recorded for potential buyers
Tenants and occupiers of property can also be liable if they are committing the violation - landlord is still liable, unless it’s criminal which requires intent element
Constitutional limitations of takings
In general:
due process:
Procedural: notice, opportunity to be heard
Substantive: can’t be arbitrary and capricious (not reasonably related to public health, welfare, safety)
Equal protection: does it discriminate along suspect classes/affect fundamental rights?
First amendment: billboards/aesthetics?
Constitutional limitations: takings
5th amdt bars taking private property for public use w/o just compensation
Land use reg is a taking if it denies an owner ALL reasonable, economically beneficial uses of land
Partial takings for regs that decrease value: rare. balancing test:
- impact of regs
- extent to which reg has interfered with investment-backed expectations
- character of govt action
Rezoning a property
If inconsistent with a comprehensive plan for the area, must be based on change in conditions, either in land, area, or in public opinion
Rezoning a particular piece of land is judicial-ish and requires due process. Big rezonings are legislative
Can petition for a rezoning, but use variance or special use permit is much easier
Non-conforming uses
Sometimes a use is permitted by statutes/ordinances despite similar uses being barred. Often comes up when something has been going on a while and is just discovered.
If a nonconforming use is substantially destroyed, MAY NOT be expanded or rebuilt
Statutes often prohibit enlarging or extending, or even require reduction over time
Variances
Permission from local zoning authority to use property forbidden by zoning ordinances for reasons particular to a parcel
To vary from an AREA RESTRICTION: must show practical difficulties or that requirements are unreasonable or create undue hardship
To vary from USE RESTRICTION: need undue hardship
Special Use Permits
Applied when use is generally not allowed, but which are beneficial to the public and compatible with the area
Applicant is entitled to a public hearing that is noticed to all who might have an interest, inc nearby property owners
Conditional use permit
Like special use permits, but requires add’l conditions (no more than two visitors at a time, no signage, etc)
Spot zoning
Zoning a parcel or small area differently from the overall plan
Illegal when it’s tailored to serve interests of specific landowners
Exaction
Approval of use in exchange for money or land. Permissible only if:
- public need is causally related to owner’s use, AND
- amount of exaction is approximately equal to new public need
Support rights
Landowner has right to physical support of the natural state of their land by adjoining land, laterally. If adjoining landowner fails to provide, they are strictly liable
However, ask if improvements to the land caused it to subside. If so, strict liability replaced with negligence
Subjacent support: can sever subterranean parcel and sell mineral rights for example. Right to support extends to buildings present when severed. Negligence required
Water rights
Anyone whose land touches lake/stream has right to make reasonable use (majority view). Minority (western state) view: first person to take water gets the rights
