Zoning Flashcards
Law is unconstitutional only if it is clearly arbitrary and unreasonable, and has no substantial relationship to the public health, safety, morals, or general welfare
This test is the default rule (applies unless Strict Scrutiny applies) when determining the constitutionality of land use regulations
Rational Basis Test
Discriminates against a suspect class (race, ethnicity, etc.) or
Impairs a fundamental constitutional right (freedom of speech)
Strict scrutiny is applied when the law:
_______ ________ set forth the uses that were permitted in each district and established other restrictions (height, density, building size, setbacks, etc.)
Zoning ordinance
The ordinance must be justified under some aspect of the police power of the state, asserted for the ______ _______
public welfare
An ordinance is _______________ only if its provisions are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”
unconstitutional
allows the government to intervene in matters that involve the health, welfare, and safety of society
Police Power
A use that was legal at the time the use began but, because of the enactment of or amendments to the zoning ordinance, the use is no longer permitted in the district
nonconforming
If a subsequent owner acquires the property, the subsequent owner has the right to continue the ___________ use
nonconforming
The use cannot be expanded
The structure cannot be expanded for that use
Only ordinary repairs are allowed; no rebuilding
Restrictions on nonconforming uses
If the use was discontinued or abandoned
If the structure was destroyed
If the use constituted a nuisance under nuisance law
If the property was acquired by the municipality through eminent domain
Traditionally, nonconforming uses could only be terminated:
Relatively new (and rarely used) method of terminating a nonconforming use:
amortization
The nonconforming use is “phased out” over a period of time determined by the municipality
Amortization
Allows the nonconforming use to continue for a period of time necessary to allow the owner to recover its investment (so the municipality does not have to compensate the owner as would be required under eminent domain)
Amortization
Where it is permitted, the ___________ period must be reasonable as determined by a variety of factors
amortization
Amendment to the zoning ordinance is valid unless:
The amendment is clearly arbitrary and unreasonable and
The amendment has no substantial relationship to the public health, safety, morals, or general welfare
Rational Basis test
Amendment to the zoning ordinance is valid only if:
There was a mistake in the original zoning ordinance, or
Conditions or circumstances have changed so significantly that the original zoning ordinance should no longer apply
Change or mistake approach
Singles out one parcel, usually small in relative size, and treats it differently
The parcel is treated differently primarily for the benefit of a particular person, not for the public
The rezoning is inconsistent with the uses in the surrounding area
Spot zoning exists when an amendment/rezoning:
Spot zoning is per se arbitrary
If a court finds that a local government’s decision constituted spot zoning, the court will strike down the rezoning
_____ _______ constitutes an arbitrary, capricious, and unreasonable treatment of one parcel of land
Spot zoning
A ________ is an exception to the requirements of the zoning ordinance which is made for a specific property when the strict enforcement of the zoning ordinance would result in an unnecessary hardship on the owner and would render the land unable to be developed for any reasonable use
variance
The land has unique physical conditions, circumstances, or topography that create an unnecessary hardship
Because of the unique physical conditions, the land cannot be developed in strict compliance with the zoning requirements
The hardship was not created by the party seeking the variance
The variance will not:
Alter the essential character of the surrounding area
Substantially or permanently impair the use or development of adjacent lands
Be detrimental to the public welfare
The variance must be narrowly construed
Variances
Elements
Exception which allows the owner to deviate from the height restrictions, setback requirements, building size, floor area ratio (ratio of the building to the size of the lot), density (number of units on the lot), lot size, street frontage, or other physical requirements or restrictions
Area variances
Exception which allows the owner to use the land for a specific purpose which is not permitted under the zoning ordinance
Use variances
In most states, an unnecessary hardship exists only if there is ___ ________ ___ of the land without the variance
no reasonable use
