Zoning Flashcards
What is the legal authority supporting the zoning power of the states? What about cities and counties?
The zoning power is based on the state’s police power under the Tenth Amendment, and is limited by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Takings Clause of the Fifth Amendment.
Cities and counties can exercise zoning power only if authorized by a state enabling act.
What is a zoning variance? How is one granted?
Permission to depart from a zoning restriction.
The variance is granted or denied by administrative action, typically in the form of a zoning board.
What must the proponent of a variance show?
(1) undue hardship, AND
(2) granting the variance will not cause diminution of value to neighboring property
Zoning ordinances are generally invalid if they: (6 things)
(1) have no reasonable relation to the public welfare
(2) are too restrictive
(3) are discriminatory as to a particular parcel
(4) are beyond the grant of authority
(5) violate due process
(6) are racially discriminatory
Say a once lawful, existing use is now deemed nonconforming by a new zoning ordinance. What result?
Previously allowed use cannot be eliminated all at once unless just compensation is paid for the taking.
A nonconforming use cannot be _______ or _______ in ways that constitute a substantial change, but insubstantial changes are permitted.
(1) extended
(2) intensified
What are the two types of zoning ordinances? Explain.
(1) Cumulative: creates a hierarchy of uses of land, e.g., a single-family home is granted the highest use, followed by a two-family home, then an apartment building, etc. Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated purpose and for any use higher in the hierarchy.
(2) Noncumulative: land may be used only for the purpose for which it is zoned
What is a special use permit?
A special use permit must be obtained for certain uses even if the zoning is proper for the intended use. This is often required for, e.g., hospitals, funeral homes, drive-in businesses, etc.
