Zoning, Condominiums, and Natural Rights

Question 1

Zoning generally

Answer 1

Pursuant to police polices, government may enact statutes to reasonably control land use for the protection of the health, safety, morals, and welfare of its citizens

Question 2

Variance

Answer 2

Achieve flexibility in zoning

Grants a landowner permission to depart from the literal restrictions of a zoning ordinance

Must show
- undue hardship
- no diminution to neighboring property values

Usually will not be granted if the hardship has been created by the applicant themselves

Question 3

Zoning ordinances invalid

Answer 3

Generally invalid if
- they have no reasonable relation to public welfare
- are too restrictive
- are discriminatory as to a particular parcel
- are beyond the grant of authority
- violate due process, or
- are racially discriminatory

Question 4

Elimination of once lawful use

Answer 4

Once lawful use but now deemed nonconforming by a new zoning ordinance

Cannot be eliminated all at once unless just compensation for the taking

Question 5

Cumulative zoning ordinance

Answer 5

Creates a hierarchy of uses of land, from highest to lowest:
- single family home
- two-family home
- apartment building
- stip mall
- factory

Land that is zoned for a particular use may be used for the stated purpose and any higher use

Question 6

Noncumulative zoning ordinance

Answer 6

Land may be used only for the purpose for which it is zoned

Question 7

Special use permit

Answer 7

One that must be obtained even though the zoning is proper for the intended use
- safety concerns

Often required for hospitals, funeral homes, drive-in businesses, etc

Question 8

Condominiums ownership interests

Answer 8

Each owner owns the interior of their individual unit plus an undivided interest in the exterior and common elements

Condo is fee ownership, tenant in common to all shared areas

Question 9

Membership to HOA

Answer 9

Owner of each condo is a member of the homeowners’ association

Vote to elect a board, which manages the property and oversees common elements, enforces the CC&Rs

Question 10

Homeowners Associations rules

Answer 10

Most pass charters and bylaws and are contained in whats called a declaration of covenants, conditions, and restrictions (CC&R)
- prescribe what owners can and cannot do with their property

Question 11

Homeowners fees

Answer 11

Regular monthly dues to the HOA which are used to maintain the common elements

If monthly fees insufficient to pay necessary expenses, special assessments - one time fees

Question 12

Right to have land supported

Answer 12

Ownership of land includes the right to have the land supported in its natural state by adjoining land

Question 13

Support of land in natural state

Answer 13

A landowner is strictly liable if their excavation causes adjacent land to subside

Question 14

Support of land with buildings

Answer 14

If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if negligent

However, strict liability will apply to the defendant excavator’s actions if the pl shows that, because of the defendant’s actions, the pl’s improved land would have collapsed even in its natural state

Question 15

Water rights - watercourses (streams, rivers, lakes)

Answer 15

Two major systems for determining allocation of water in watercourses
- the riparian doctrine
- prior appropriation doctrine

A boundary line can also be affected by accretion or avulsion

Question 16

Riparian doctrine

Answer 16

Water belongs to those who own the land bordering the watercourse

Rights attach to all continuous tracts held by the same owner as long as one of the tracts abuts the water

Riparian owners can use water only in connection with the riparian parcel - reasonable use

Different theories

Question 17

Natural flow theory - riparian

Answer 17

Under this theory, a riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity

Question 18

Reasonable use theory - riparian

Answer 18

Most common theory

All riparians share the right of reasonable use of the water - not enjoinable unless it substantially interferes with the use of other riparian owners

Reasonable use - balance owners use against the gravity of the harm and consider
- alteration of flow
- purpose of use
- pollution
- extent of use
- destination of water taken
- miscellaneous conduct that may give rise to litigation

Question 19

Natural vs. artificial use - riparian

Answer 19

Under either theory, natural uses prevail over artificial uses

Question 20

Prior appropriation doctrine

Answer 20

The water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner

Appropriation rights are determined by priority of beneficial use

Norm is first in time, first in right
- so anyone who uses productive or beneficial use of the water and first do so is sufficient to get priority

Right can be lost by abandonment

Question 21

Water rights - groundwater

Answer 21

Water beneath the surface of the earth that isn’t confined to a known channel

Four doctrines determine rights in groundwater - surface owner can make reasonable use of ground water is most followed one

Question 22

Absolute ownership doctrine - groundwater

Answer 22

Only a few states

The owner of overlying land can take all the water they wish, for any purpose, including export

Question 23

Reasonable use doctrine - groundwater

Answer 23

Many eastern states follow

Like absolute ownership, but exporting is allowed only if it does not harm other owners who have rights in the same aquifier

Question 24

Correlative rights doctrine - groundwater

Answer 24

In some states

Owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use

Question 25

Appropriative rights doctrine - ground water

Answer 25

Many western states

Priority of use (not ownership of overlying land) is determinative

Question 26

Restatement approach - groundwater

Answer 26

A few states follow this

A surface owner may pump groundwater unless it
- unreasonably harms neighboring landowners
- exceeds the pumper’s reasonable share, or
- directly and substantially affects surface waters and unreasonably harms surface water users

Question 27

Water rights - surface waters

Answer 27

Water without a channel that passes over land which has not yet reached a natural watercourse or basin

Landowner can use surface water within their boundaries for any purpose they desire

Questions on surface water usually concern liability for changing nature flow
- liability depends on which theory the state follows and these theories only apply for redirecting surface water
- can capture as much as want

Question 28

Natural flow theory - surface waters

Answer 28

Many states

Owners cannot alter natural drainage patterns

Softened in most states to allow reasonable changes

Question 29

Common enemy theory - surface waters

Answer 29

Followed by many states (prof said apply this?)

Owner can take any protective measures to get rid of the water or combat its flow

Modified by many courts to prohibit unnecessary damage to others’ land
- cannot unreasonably harm or interfere with others’ use and enjoyment

Question 30

Reasonable use theory - surface waters

Answer 30

Growing trend to apply this theory

Balancing the utility of the use against the gravity of the harm

Question 31

Right to exclude

Answer 31

The possessor of real property has the right to exclude others

Remedies for invasions include actions for
- trespass: land invaded by tangible physical object
- private nuisance: land invaded by intangibles, like odors or noise
- continuing trespass (repeatedly invaded)

Question 32

Actions for violations of right to exclude

Answer 32

Ejectment or unlawful detainer to remove a trespasser or tenant

This action can be joined with a demand for money damages