Zoning, Condominiums, and Natural Rights Flashcards
Zoning generally
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
Variance
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
Zoning ordinances invalid
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
Elimination of once lawful use
Once lawful use but now deemed nonconforming by a new zoning ordinance
Cannot be eliminated all at once unless just compensation for the taking
Cumulative zoning ordinance
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
Noncumulative zoning ordinance
Land may be used only for the purpose for which it is zoned
Special use permit
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
Condominiums ownership interests
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
Membership to HOA
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
Homeowners Associations rules
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
Homeowners fees
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
Right to have land supported
Ownership of land includes the right to have the land supported in its natural state by adjoining land
Support of land in natural state
A landowner is strictly liable if their excavation causes adjacent land to subside
Support of land with buildings
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
Water rights - watercourses (streams, rivers, lakes)
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
Riparian doctrine
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
Natural flow theory - riparian
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
Reasonable use theory - riparian
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
Natural vs. artificial use - riparian
Under either theory, natural uses prevail over artificial uses
Prior appropriation doctrine
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
Water rights - groundwater
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
Absolute ownership doctrine - groundwater
Only a few states
The owner of overlying land can take all the water they wish, for any purpose, including export
Reasonable use doctrine - groundwater
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
Correlative rights doctrine - groundwater
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
Appropriative rights doctrine - ground water
Many western states
Priority of use (not ownership of overlying land) is determinative
Restatement approach - groundwater
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
Water rights - surface waters
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
Natural flow theory - surface waters
Many states
Owners cannot alter natural drainage patterns
Softened in most states to allow reasonable changes
Common enemy theory - surface waters
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
Reasonable use theory - surface waters
Growing trend to apply this theory
Balancing the utility of the use against the gravity of the harm
Right to exclude
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)
Actions for violations of right to exclude
Ejectment or unlawful detainer to remove a trespasser or tenant
This action can be joined with a demand for money damages
