Zoning, Condos, Natural Rights

Question 1

When can a city use its zoning power? What restrictions are there on the zoning power?

Answer 1

City can use zoning power so long as state has authorized it to do so through enabling act. The state’s power to do this comes from its general police power.

When assessing the validity of zoning ordinances think re possible EPC, DPC, and Takings Clause challenges. Zoning ordinances will be invalid if they have no reasonable relation to public welfare, are discriminatory, are beyond grant of state authority, violate due process, etc.

Question 2

What is a variance?

Answer 2

Variance grants landowner ability to depart form literal restrictions of zoning ordinance. Must be granted by administrative action.

Question 3

What are the two types of zoning ordinances?

Answer 3

(a) cumulative zoning ordinance = creates hierarchy of uses (i.e., single family home - two family home - apartment - strip mall - factory), so land zoned for a particular use can be used for that use or anything above it in the hierarchy
(b) noncumulative zoning ordinance = land may only be used for its stated use

Note: some things require special use permit, i.e. they fall into appropriate use category but still need permit regardless (e.g. hospital)

Question 4

What is a condominium? What is a homeowners association/what do they do?

Answer 4

Condo = each owner owns the interior of their unit and an undivided interest in the exterior and common elements,

HOA = each owner of condo is member of the HOA, pays fees, votes for board – the HOA passes charters/bylaws that place reqs on each owner’s use of property - CC&R = declaration of covenants, conditions, and restrictions

Question 5

What does right of possession of land include?

Answer 5

Generally, owner of land has exclusive right to use/possess the surface, airspace, and soil of the property

Question 6

What are a landowner’s rights wrt adjoining land?

Answer 6

• right to have the land supported in its natural state by adjoining land, so if landowner excavation causes adjacent land to subside they are strictly liable
• if land is improved by adjacent buildings, and excavation ruins buildings, then excavator will be held to negligence standard

Question 7

How do water rights work for watercourses (e.g. streams, rivers, lakes)?

Answer 7

Either under (a) riparian doctrine or (b) prior appropriation doctrine.

(a) riparian doctrine: water belongs to those who own the land bordering the water. If someone owns connecting plots of land then the rights attach to all lots as long as one touches. Owners can only use land in connection with their land parcel

How can riparian owner use water? either (1) natural flow theory or (2) reasonable use theory.

          (1) natural flow theory - owner can use as long as it causes substantial or material diminution in water quality, flow, quantity
       (2) reasonable use theory - owner can use as long as it use does not substantially interfere with other owners' uses 

  Note: under either theory natural uses (consumption, etc) will prevail over artificial (e.g. industry)

(b) prior appropriation doctrine: water initially belongs to the state but ppl can acquire the rights to divert and use it by actual use. Usually acquired by first in time, first in right principal - so whoever is first can divert it and use it.

Question 8

what are the 5 possible doctrines governing groundwater rights?

Answer 8

groundwater is water beneath the surface that is not confined to a known channel.

The 5 doctrines states choose from are:

1. absolute ownership - person who owns land can do whatever they want with it
2. reasonable use doctrine - person owning land can do whatever BUT they cannot export if it harms other co-owners
3. correlative rights doctrine - owners of land act as joint tenants, each is allowed reasonable use
4. appropriate rights - priority of use, rather than ownership of land is determinative
5. restatement approach - owner of surface may use water unless (a) unreasonably harms neighbors (b) exceeds reasonable share (c) directly and substantially effects surface waters

Question 9

What rights to landowners have wrt redirecting surface water on their land? what about capturing surface water?

Answer 9

Wrt capturing surface water, landowners can capture as much as they wish on their land.

Wrt redirecting surface water (e.g., channels coming from rain, springs, melting snow that has not met its basin yet), it depends on what rule the jdx follows:

(1) natural flow theory - owners cannot alter natural drainage patterns, but some allow for reasonable changes
(2) common enemy theory - owner can take any protective measure to get rid of flow, but some prohibit unneccesary damage to other lands
(3) reasonable use theory - balance utility of use against gravity of harm

Question 10

What are the 4 rights of action a landowner may have against someone who has invaded their right to exclusive use?

Answer 10

1. trespass - physical invasion
2. private nuisance - nontangible invasion
3. continuing trespass - repeated trespass
4. ejectment or unlawful detainer - to remove trespasser/tenant