Zoning, Condos, and Natural Rights Flashcards
from where does state derive zoning powers?
what limits state’s zoning powers?
Pursuant to its police powers, government may enact statutes to reasonably control land use for the protection of the health, safety, morals, and welfare of its citizens.
The zoning power is based on the state’s police power
Limited by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the “no taking without just compensation” clause of the Fifth Amendment.
when can cities and counties exercise zoning power
Cities and counties can exercise zoning power only if so authorized by a state enabling act.
what is a variance and how do you get one?
The variance is the principal means to achieve flexibility in zoning. The variance grants a landowner permission to depart from the literal restrictions of a zoning ordinance.
proponent must show undue hardship and that granting the variance would not cause diminution to the neighboring property values
how is variance granted or denied? by whom?
when is variance denied?
The variance is granted or denied by administrative action, typically in the form of a zoning board.
Usually, a variance will not be granted if the hardship has been created by the applicant themselves.
when are zoning ordinances invalid?
Zoning ordinances are generally invalid if
(1) they have no reasonable relation to public welfare,
(2) they are too restrictive
(3) they are discriminatory as to a particular parcel,
(4) they are beyond the grant of authority,
(5) they violate due process,
or
(6) they are racially discriminatory
what happens when a once lawful existing use is now deemed nonconforming by a new zoning ordinance?
(1) previously allowed uses cannot be eliminated all at once unless just compensation is paid
(2) you can only make insubstantial changes to the use
A nonconforming use cannot be extended or intensified in ways that constitute a substantial change, but insubstantial changes are permitted. Owners can make reasonable changes to repair their premises and make them practicable for their purposes. If there is any doubt as to whether a change is substantial or insubstantial, the doubt is resolved against allowing the change.
what are the two types of zoning ordinances
(1) cumulative
A cumulative zoning ordinance creates a hierarchy of uses of land, where a single-family home the highest use, followed for example by a two-family home (which is a lesser use), and then an apartment building (an even lesser use), and then a strip mall (commercial = even lesser), and then a factory (even lesser).
(2) noncumulative
Under a noncumulative zoning ordinance, land may be used only for the purpose for which it is zoned.
what is a special use permit
A special use permit is one that must be obtained even though the zoning is proper for the intended use. It is often required for hospi- tals, funeral homes, drive-in businesses, and so on.
special use permit vs. variance - what is the difference
special use permit is for something already allowed in the zoning scheme, but is required to get something else for safeguards - a permit.
variance is for a use that departs from the zoning scheme
what is a condo?
what is the ownership scheme of a condo and what are the rights of owners ?
DEFINITION
OWNERSHIP SCHEME
In a condominium, each owner owns the interior of their individual unit plus an undivided interest in the exterior and common elements.
RIGHTS
Because condominium unit ownership is treated as fee ownership, the ordinary rules against restraints on alienation apply.
the owner of each condo is also what?
member of the HOA
how does HOA government work
The members of the HOA [all the condo owners] vote to elect a board, which manages the property and oversees the common elements
The association is usually a legal entity, such as a corporation or LLC.
where are an HOA’s rules and how does it enforce them?
Most HOAs pass charters and bylaws that place requirements
or restrictions on each owner’s use of her property. These rules contained in what’s called a declaration of covenants, conditions, and restrictions (or “CC&R”) that prescribe what owners can and cannot do with their property.
For example, CC&Rs might prohibit pets or the posting of “for sale” signs or require that balconies be kept free of trash.
enforcement: Condo board enforces those rules with oversight from HOA
what fees do condo owners have to pay?
(1) HOA dues [maintain common elements]
(2) special assessment [sometimes] - if HOA fees do not cover the expense [ex: major roof repair]
what is a cooperative
In a cooperative, title to the land and buildings is held by a corpora- tion that leases individual apartments to its shareholders. Because of their economic interdependence and because the individual owners are regarded as tenants, a direct restraint on the alienation of an individual interest is valid.
