Zoning Flashcards
`variance, and how is it applied?
spot zoning
when a piece of property or groups of property have special zoning laws applied to them that differ from the zoning laws surrounding them.
when a specific lot is zoned differently then surrounding lots
- when it is not unlawful,
- a test to determine, if it spot zoning (see if it complies with the original plan)
example –> if a home is allowed to be used for business purposes in what otherwise would be a residential area
bodies of governmental
in zoning
municipal legislature – which is town council
board of zoning appeals –> board of adjustment BZA (to approve or deny variances, to hear appeals from building departments)
planning or zoning commission - advises town council, contents of zoning code, they don’t administer the zoning code but give advice
procedural due process
legislative actions - NO NOTICE NEEDED
for administrative actions (quasi-judicial) - NOTICE MUST BE GIVEN
example of administrative actions –> variances, special exception granted by zoning board
required –>
notice
a hearing
presentation of evidence
& findings of fact on evidence (explanation of governments decision_
exceptions – Variances - by zoning board
substantive due process
current test for if federal substantive due process has been violated –>
- does the ordinance bear a rational relationship to a legitimate state objective (e.g. the public health, safety, morals, and general welfare ) EUCLID
if yes, then the ordinance is valid under the due process clause
limiting it to single family option, but narrowly describes family to only accommodate some forms of family to be labeled as family, it violates due process
strict judicial scrutiny –> violated minorities then yes
non-conforming uses
a non conforming use is a use in existence when the zoning is passed, that if not allowed in the new zoning ordinance
nonconforming use are allowed because it would require immediate termination would be either a violation of substantive due process, or be an unconstitutional taking
example –> somebody may have a house in an area that is later zoned as commercial only, they can not make that house leave
can zoning ordinance prohibit a nonconforming use beyond its precise space it was occupied when the ordinance was enacted?
can you add on to the building that is still operating under non-conforming use?
YES the zoning ordinance can prohibit a nonconforming use beyond its precise space it was occupied when the ordinance enacted
you can not add on to the building that is still operating under non-conforming use
if a nonconforming building is burned down by the fire, can it be rebuilt without the new zoning ordinance?
no
it has to be built with compliance to satisfying the new ordinance
- a zoning ordinance may provide that a non conforming use must terminate after a specific period of time
- may be allowed to operate as a nonconforming use for a specified time
if a person or developer has a vested right, can the zoning be changed to deny the person a right to proceed?
what is the majority approach and minority approach
NO it can not be changed
majority (late vesting) –> once a person gets a permit and makes substantial investments based on that permit, their rights are considered vested, and the zoning cannot be changed to deny them the right to proceed with their project.
ezz–> allows local governments to change the rules later, causing uncertainty and wasted investment for developers
minority (early vesting) –> rights are vested at the time of application (unless there is compelling government interest to justify a zoning change that would affect those rights)
- this means under early vesting , the zoning regulations can not be changed to deny the right to proceed unless there is strong reason related to public interest or welfare.
western land equities v city of Logan - example of early vesting where court held that developer had a vested right at the time of application, and the city could not change the zoning regulations to deny that right without a compelling government interest
zoning amendments
traditional view - unless cit does not seem to have a good reason related to public health, safety, morals, or general welfare, then it might not be a reasonable change.
EUCLID TEST
the burden is on the person challenging the amenedment to probe that it is not in accordance with the comprehensive plan
variances
- must show strong evidence of “practical difficulty” or “unnecessary hardship” like a certain lot that can not conform to a set back ordinance due to a lot shape
and the variance would not be inconsistent with the overall purpose of the ordinance, or it would be inconsistent with the general welfare of the area
hardship CAN NOT be self created
- special exception, since it can not conform to it due to the set back, because of oddly shaped property
if you see essay question on zoning variance MENTION THIS….
unique. circumstance (an irregularly shaped lot)
compliance with a zoning ordinance would cause practical difficulty or undue hardship , a variance may be granted
challenges to zoning VS challenges to enforcement of CCR’s
zoning is a public land use regulation and is subject to the Euclid/Rational Basis test.
CCRs involve whether the benefit or the burden run to successors in interest.
The traditional approach uses elements (see chart on p. 534); the Restatement (Third):
the covenant/servitude must i) be in writing; ii) intent; iii) notice; and iv) the covenant is
not illegal, unconstitutional, or against public policy
what is zoning estoppel and the elements?
- reliance in good faith (genuine beliefs and trust in gov actions)
- act or omission of the government (failing to enforce zoning regulations, or issuing permits)
- substantial change in position or obligations (owner must have taken significant steps or gotten substantial costs based on their reliance on governments actions, shows that they acted in a way that they would not have if they had known the true zoning situation)
- highly inequitable and unjust (enforcing zoning regulations against property owner at this stage would be severely unfair or injust due to their reliance and changes they have made)
- Good faith belief in what the government says or does.
- Government’s actions or failures, like not enforcing rules or giving permits.
- Big changes or costs because of believing the government, showing they wouldn’t have done this if they knew the real zoning rules.
- Would be very unfair to enforce zoning rules now because the owner trusted the government and acted accordingly.
how does the Utah Supreme Court handle WLA’s argument re zoning estoppel?
The Utah Supreme Court would look at whether WLA has a valid argument called “zoning estoppel.” This argument says that if the government led WLA to believe they could use their property in a certain way and WLA relied on that belief to their disadvantage, the government can’t suddenly change the rules and enforce zoning laws against WLA.
To prove zoning estoppel, WLA needs to show that:
The government said or did something that made WLA think they could use their property a certain way.
WLA trusted the government and acted based on that trust, like spending money.
WLA ended up worse off because of this reliance.
It would be fair to protect WLA’s interests over enforcing strict zoning laws.
The Supreme Court would carefully consider all these points and previous similar cases before making a decision.
