Zoning

Question 1

What is zoning?

Answer 1

Inherent power of the state, where the government is allowed to enact zoning ordinances to reasonably control land use, and for the protection of general health, safety, welfare, and morals.

Question 2

What is euclidean zoning?

Answer 2

A type of zoning that only allows one kind of land use per zone.

Question 3

How does euclidean zoning accomplish its purpose?

Answer 3

Through separation of uses and density control

Question 4

Under separation of uses, what is the highest use?

Answer 4

Housing
Zoning laws embody the assumption that wholesome housing must be protected from harmful neighbors. Thus, commerce and industry are excluded from residential zones bc they are deemed harmful to housing.

Question 5

Where do commercial and industrial uses fall in relation to residential uses?

Answer 5

Commercial use is lower than residential use. Zoning codes typically divide commercial districts into several different kinds. The purpose of such division is to separate light from heavy industry and commerce.

Question 6

What is the principle of cumulative uses?

Answer 6

Underlies zoning law. It states that higher, but not lower uses are permitted in any district.

Question 7

How can density controls indirectly control the number of people using an area of land?

Answer 7

They may include height limitations, setback requirements, and minimum lot and house sizes.

Question 8

How can density controls directly control the number of people using an area of land?

Answer 8

Ex. direct population density restrictions where no more than 3 people can live in a single apartment.

Question 9

How is a euclidean zoning a form of nuisance law made predictable?

Answer 9

Bc it declares in advance what uses are harmful and prohibited in the various zones.

Question 10

Can euclidean zoning be a way to limit racial and socio-economic diversity?

Answer 10

Yes… ex. enabling legislation

Question 11

Through enabling legislation, what is The Standard State Zoning Enabling Act?

Answer 11

It is a model zoning statute that appeared in 1922 and empowers municipalities to regulate buildings, other structures, and public space for: (1) use; (2) location; (3) heigh; (4) size; and (5) density. It permits division of municipalities into different types of zones.
Under the Standard Act, to enact a zoning ordinance a city must create a planing (or zoning) commission and a board of adjustment (sometimes called a board of zoning appeals).

Question 12

What is a planning (zoning) commission?

Answer 12

Advised by planning experts, has the function of recommending a comprehensive plan and a zoning ordinance to the city council. The zoning ordinance must be enacted by the city council.

Question 13

What is a Board of Adjustment?

Answer 13

Ensures that broad zoning regulations do not operate inequitably on particular parcels of land.

Question 14

What is a Comprehensive Plan?

Answer 14

A statement of the local government’s objectives and standards for development.

Question 15

What is a nonconforming use?

Answer 15

A once lawful, existing use that is now rendered nonconforming bc of a new zoning ordinance
- at the outset of zoning, nonconforming uses were tolerated
- the hope was that nonconforming uses would just fade away, but when this did not happen, zoning law came up with ways to eliminate nonconforming uses

Question 16

Can the nonconforming use be eliminated all at once?

Answer 16

It cannot be unless just compensation is paid. Otherwise, its wholesale elimination would be tantamount to an unconstitutional governmental taking w/o just compensation [The Takings Clause of Amend. V].

Question 17

What is amortization?

Answer 17

Defined by statute, amortization is the gradual elimination, or the gradual phasing out, of the nonconforming use. To avoid the takings conclusion, and paying just compensation to the affected property owners, some jurisdictions provide for amortization.

Question 18

What is the Sullivan approach to amortization?

Answer 18

Provisions for the amortization of nonconforming uses are constitutional exercises of the police power so long as they are reasonable.

Question 19

What approach does the court in Pennsylvania NW Distributors adopt?

Answer 19

Amortization is unlawful per se.

Question 20

What factors are usually listed as relevant to an assessment of the reasonableness of a particular amortization period?

Answer 20

1. nature of the use in question
2. the amount invested in it
3. the number of improvements
4. the public detriment caused by the use
5. the character surrounding the neighborhood; and
6. the amount of time needed to “amortize” the investment

Question 21

Apart from amortization (if it is authorized in the jurisdiction), a lawful conforming use can be extinguished if:

Answer 21

1. it is deemed a nuisance.
2. it is destroyed.
3. it is abandoned.
4. if the land is taken by eminent domain.

Question 22

How do you achieve flexibility in zoning?

Answer 22

1. Variances
2. Special Exceptions
3. Zoning Amendments

Question 23

What is a variance?

Answer 23

Permission to depart from the literal requirements of a zoning ordinance. The variance is the principle means to achieve flexibility in zoning. The variance is granted or denied by administrative action through the board of adjustment.

Question 24

What are the two types of variances?

Answer 24

1. Area
2. Use

Question 25

What is an area variance?

Answer 25

Deals with the problems of compatible use, but ill fit (setback requirements and the life). Most common.

Question 26

What is the test for an area variance?

Answer 26

1. Undue hardship that has not been self-imposed
   - undue hardship means that w/o variance, the land cannot practically be used given the existing zoning, even if a permitted use is theoretically possible (practical difficulties test)
   - the undue hardship must be peculiar to the property, not general to the neighborhood or community.
   - Courts will consider efforts by the property owner to alleviate the hardship
2. The grant of variance will not substantially impinge upon the public good (ex. will not lower neighbors’ property value) and the intent and purpose of the zoning plan and ordinance.

Question 27

What is a use variance?

Answer 27

Seeks to depart from the list of uses that are permitted in a given zone.

Question 28

What is the test for an area variance?

Answer 28

1. Undue hardship that has not been self-imposed.
   - undue hardship means that w/o variance, the land cannot be used at all (strict hardship test)
   - the undue hardship must be peculiar to the property, not general to the neighborhood or community
   - Courts will consider efforts by the property owner to alleviate the hardship
2. the grant of the variance will not substantially impinge upon the public good (ex. will not lower neighbors’ property values) and the intent and purpose of the zoning plan and ordinance.

Question 29

What is the difference between the tests for area and use variance?

Answer 29

The burden of proof is greater for use variance than for an area variance:
1. for an area variance, the undue hardship is based on practical difficulties
2. for a use variance, the undue hardship is based on strict hardship

Question 30

What is a special exception?

Answer 30

A use that is generally compatible with other uses permitted in a zoning district, but something about its nature, such as its potential impacts on neighboring properties, means that it must receive approval from the zoning board of appeals before it is allowed.
- aka special use permits, or conditional use permits

Question 31

What is the theory behind special exceptions?

Answer 31

Theory: Certain uses can peacefully coexist w/ their neighbors when they are limited in specific ways.

Question 32

What are zoning amendments?

Answer 32

Changes to the zoning ordinance - these amendments arise when a private entity petitions a municipality requesting that a particular area or tract be rezoned.

Question 33

When does spot zoning exist?

Answer 33

1. A small parcel of land is singled out for privileges and special treatment;
2. The singling out is not in the public interest, but only for the benefit of the landowner; and/or
3. The action is not in accord with the comprehensive plan
   NOTE: spot zoning can happen through variances, special exceptions, and zoning amendments

Question 34

What is conditional zoning?

Answer 34

A property owner agrees unilaterally to use the land in a specified manner.

Question 35

What is contract zoning?

Answer 35

City agrees to zone or rezone a particular tract if owner contracts to restrict the use in a certain way.

Question 36

What are floating zones?

Answer 36

Zoning ordinance established a zone (ex. light industrial) but does not assign it to a particular location until a landowner requests a reclassification to the zone.

Question 37

What are cluster zones?

Answer 37

Developer is permitted to construct dwellings in a pattern not in compliance with the area restrictions of a zoning ordinance as long as overall population density limits are not exceeded. Thus, cluster zones involve area variation.

Question 38

What is a planned unit development (PUD)?

Answer 38

Owner of a large tract of land is allowed to mix uses and not be in compliance with the area restriction of a zoning ordinance as long as overall population density limits are not exceeded. Thus, PUDs involve area and use variations.

Question 39

What is zoning by referendum?

Answer 39

Rezoning (usually for multi-family dwellings) is allowed only if approved by public referendum. A referendum is when the local governing body approves an ordinance and then refers it to the electorate for a final decision.

Question 40

What is the old doctrine for aesthetic zoning?

Answer 40

In the late 19th century, the courts laid down the rule that the police power cannot be used to accomplish objectives that are purely aesthetic.

Question 41

What is the modern doctrine for aesthetic zoning?

Answer 41

Cities may enact regulations primarily for aesthetic objectives.

Question 42

What are architectural review boards / commissions?

Answer 42

The power of city architectural review boards / commissions to deny building permits for proposed buildings that the board disapproves.

Question 43

What is the two-part Johnson test?

Answer 43

1. Whether an intent to convey a particularized message was present; and
2. Whether the likelihood was great that the message would be understood by those who viewed it