Zoning, Condos, Natural Rights Flashcards
Zoning
Pursuant to its police powers, the states may enact statutes to reasonably control land use for the protection of health, safety, morals, and welfare of its citizens.
Variance
Variance is the principal means to achieve flexibility in zoning. It grants the landowner permission to depart from the literal restrictions of a zoning ordinance.
The proponent of the variance must show (1) undue hardship and (2) the granting of the variance will not diminish neighboring property values.
Usually, a variance will not be granted if the hardship was created by the applicant.
Elimination of Once Lawful Use
if a once lawful existing use is deemed nonconforming by a new zoning ordinance, the once lawful use cannot be eliminated unless just compensation is paid for the taking.
Cumulative Zoning Ordinances
A cumulative zoning ordinance creates a hierarchy of uses:
1) single family homes
2) two family homes
3) apartment buildings
4) stores
5) factories
land that is zoned for a particular use may be used for that purpose, and for a higher purpose. (can build a family house in a commercial zone)
Noncumulative Zoning Ordinances
Under a noncumulative zoning ordinance, land may be used only for the purpose for which it is zoned
Special Use Permit
A special use permit is one that must be obtained even though the zoning is proper (hospitals, funeral homes, drive-inn businesses)
This is not a variance because it is not seeking to depart from the zoning
Condos
In condos, each owners owns the interior of their individual unit plus an undivided interest in the exterior and common elements.
HOA Membership
The owner of each condo is a member of the HOA - the members vote to elect a board, which manages the property
The HOA oversees the common elements and enforcement of the governing rules
HOA Rules
Most HOAs pass charters and bylaws that place requirements or restraints on each owner’s use of their property.
The rules are contained in a declaration of covenants, conditions, and restrictions (CC&R)
the board enforces the CC&R with oversight by the HOA members
Fees for HOA
Each condo unit owner must pay regular dues to the HOA which are use to maintain the common elements
If monthly fees are insufficient to pay for necessary expenses, a special assessment may in imposed against all residents
Natural Rights in General
An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property
Lateral Support of Land
Ownership of land includes the right to have the land supported in its natural state by adjoining land.
Strict Liability - a landowner is strictly liable if their excavation causes adjacent land to subside
Negligent - 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. For strict liability to apply, the plaintiff must show that the improvements on their land did not contribute to their land’s collapse.
Watercourses (streams, rivers, lakes)
Riparian Doctrine (GA FOLLOWS) - the water belongs to those who own the land bonding the watercourse. Riparian owners can use water only in connection with the riparian parcel.
Prior Appropriation Doctrine - The water initially belongs to the state, but the right to divert it can be acquired by an individual through the actual use, regardless of whether or not they are a riparian owner. Appropriative rights are determined by priority of beneficial use. Any beneficial use of the water is sufficient to create an appropriation right.
Groundwater (Percolating Water)
There are four different doctrines the determine the rights of ground water
1) Absolute Ownership Doctrine - The owner of overlying land can take all the water they wish, for any purpose, including export
2) Reasonable Use Doctrine - Similar to absolute ownership but exporting is allowed only if it dies not harm other owners who have rights in the same water
3) Correlative Rights Doctrine - Owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount of use
4) Restatement Approach - A surface owner may pump groundwater unless it (1) unreasonable harms neighbors (2) exceeds the pumper’s reasonable share or (3) directly and substantially affects surface waters and unreasonably harms surface water users
GA Groundwater Statute
GA has a statutory scheme regulating matters pertaining to with withdrawal of groundwater.
No person may withdraw more than 100,000 gallons of groundwater per day for any purpose without obtaining a permit from the GA EPA.
