Zoning / Eminent Domain

Question 1

Eminent Domain:

• Authority
• Definition
  
  • Public Use
• Violation

Answer 1

Eminent Domain:

Taking Clause from US Constitution (5th A) & State consts:

• Allows gov agency to “take” private prop for a “public purpose.”
• For just compensation = to those w/ interest in realty
  
  • E.g. tenant who has great lease

Defining Public Use:

• Taking for over all public purpose
  
  • Doesn’t have to be “used by the public”
  • All land taken does NOT have to suffer from blight.
• Gov = broad discretion, and
  
  • Permitted to revitalize an economically distressed neighborhood, or
  • Economic development of land by private developers
    • Judiciary = extremely narrow scope of jud review
• _Fed Gov = can condemn state property _

Violation of taking clause for:

• Municipality to require landowner to use part of prop for public use:
  
  • as condition to obtaining building permit, zoning variance or for housing project subdivision
• UNLESS Gov can show:
  
  • Nexus w/ legitimate Gov interest:
    
    • roughly proportional to impact that
    • landowner’s request will have on Gov services or Gov prop

Question 2

Eminent Domain:

• Compensable taking arises when it is:
  
  • 2 Types

Answer 2

Compensable taking arises when it is:

1) Actual physical taking or possessing private property for public purpose:

E.g:

• a) Building CT or expanding a road onto private prop
• b) State law permitting all cable TV companies to install its cable on private land, OR
• c) Permanent flooding of O’s land
  
  • caused by Gov’s construction of a dam
  • e.g. seasonal flooding for 6 years = taking

2) Regulatory Taking:

• Gov regulation permanently or for prolonged period of time restricts ALL use of the land.
  
  • Leaving all of it economically idle.
  • E.g. new zoning law that prohibits land near wetland- where you live = taking
• Temporary ban for 3 years = NOT taking
  
  • When imposed to give local Gov time to create comprehensive plan

Regulatory Taking = NOT a Gov Regulation of Land:

• Gov regulation = zoning rent control, or landmark preservation of prop:
• Not taking = IF landowner is able to obtain reasonable financial return on value of land. (NYAA-697)

Question 3

Zoning laws:

• Permits municipalities to:
  
  • in order to promote:
• Constitutionality in NY: (2 Reqs)
• NY: Immunity for certain entities:
• Effect on Marketability of title in MBE (Not NY):
• Landowner complying w/ zoning laws may be enjoined by her use of land IF:
  
  • 2 things

Answer 3

Zoning laws exist under the state’s police power:

• to promote safety, health, and general welfare of community.

Permits municipalities to:

• Require a minimum area to build and
• Limit the type of use of a property

NY: A Constitutional Restrictive Zoning ordinance MUST:

1. Provide properly balanced & well-ordered plan for community, AND
2. Consider regional housing needs and requirements

NY: Certain entities have absolute immunity from zoning law regs:

1. Fed Gov,
2. State Gov, or
3. Public schools and parks

MBE - NOT in NY:

• Existing violation of zoning law MAY render title unmarketable
• BUT = not unmarketable IF:
  
  • Existing zoning code limitation on the land or change in zoning law
  • After B signs K but before deed is delivered

Landowner complying w/ zoning laws may be enjoined by her use of land IF:

1. Tort of nuisance, OR
2. Violating existing CRL,
   
   1. or condition in her deed restricting land’s use (BOP or SUD)

Private prop owner in close proximity to land violating zoning law:

• can commence a proceeding seeking injunction as well as damages

Question 4

Variances:

• 2 types:
• Applying for Variance:
  
  • Landowner MUST show 3 things:
  • SOL for Special Proceeding in zoning matter:
• Zoning board’s determination to grant variance:
  
  • Based on CASES

Answer 4

Variances (2 types):

• Variance = relaxation of zoning laws can be requested:
  
  • Asking to use prop in manner that conflicts w/ zoning law:
• IF landowner faces “unreasonable hardships” b/c of existing zoning laws

1) Use Variance:

• To use prop in manner that conflicts w/ zoning law:
  
  • e.g. commercial building in residential area
• Landowner MUST show “Unreasonable Hardship”:
  
  • 1) Zoning law imposes an undue financial hardship on owner:
    
    • i.e. entire land cannot yield reasonable economic return
  • 2) Hardship is unique or peculiar to applicant’s prop:
    
    • i.e. not general conditions found in neighborhood
  • 3) Granting the variance will NOT substantially alter
    
    • character of neighborhood
    • NOT detrimental to adjoining owners (NYAA-696)
• Landowner has only 30 days to bring special proceeding for Zoning matter:
  
  • UNLIKE: Special proceeding: 4 month SOL: CPLR Art 78

2) Area Variance

• Seeks to decrease the area required by zoning law:
  
  • NOT to change the use of the prop (NYAA-692)
  • E.g. “cant build higher than 3 stories, etc”

Zoning board balances:

• benefits for homeowner
• against detriment to neighborhood by considering CASES:

C: Variance alters the CHARACTER of the neighborhood

• E.g. Would it have adverse effect on neighboring props?
  
  • What if everyone in community did the same?

A: ALTERNATIVES for accomplishing the land owners goal

• w/out a variance
• e.g. “put your pool on other side of house”

S: Is Variance SUBSTANTIAL or insubstantial?

• E.g. 20 yard from boundary requirement – 5 feet = sub

E: Adversely affect the ENVIRONMENT

S: SELF-created:

• Did owner subdivide prop creating the area problem, OR
• Did she buy w/ notice of the prob?
• Person who acquires prop is presumed to know the zoning law
  
  • THUS any resulting hardship is deemed self-created

Question 5

Non-Conforming use:

• Property Owner MUST prove:
• Limitations

Answer 5

Non-Conforming use:

• Land that lawfully existed when zoning law was first enacted is grandfathered in:
  
  • Owner may continue to use in manner conflicting w/ zoning law

Property Owner MUST prove:

• Prop was continuously used for nonconforming purpose:
• At the time zoning ordinance became effective
  
  • Contemplated use is sufficient

**Limitations: **(Most Juris)

• Absent a Variance: a nonconforming use CAN’T be:
  
  • Expanded or
  • Resumed, once terminated
• If it is substantially destroyed:
  
  • Cannot be rebuilt w/out variance(NYAA-695)
• Can be eliminated by zoning laws by an amortization process:
• Giving land owner reasonable time to recoup original investment and requiring land to conform to zoning laws.
• Each state can set its own period of time