Glossary of Property II - Land Use Controls

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Definition of "Zoning"
The main type of public land-use regulation which is generally done at the local, municipal, level from the state's police power. It is a way of controlling development and growth.
Enacting a Zoning Ordinance
Adoption of a zoning ordincance is a legislative act. Legislative judgment that its particular mix of land use restrictions will best serve the health, safety, welfare, and morals of local residents.
Types of Zoning
1. Euclidean
2. Use Regulations
3. Height and Area Regulations
Definition of "Euclidean" zoning
Uses a cumulative or building block approach to zoning, subjecting certain areas of land to use, and the same land is also subjected to height and area restrictions.
Definition of "Use Regulation" zoning
Typical zoning ordinance divides teh community into separate regions or "zones" which are shown on detailed maps, and specifies the uses permitted in each zone.

Note: Most common form of zoning regulation used today.
Definition of "Height and Area Regulation" zoning
Restrictions on the buildings that house each particluar type of use. These restrictions are justified on a number of bases, including fire safety, density control, and protection of access to light and air.
A zoning ordinance is presumed to be ____________.
When is a zoning ordinance unconstitutional on its face?
A zoning ordinance is unconstitutional only if its provisions are clearly arbitrary and unreasonable, with no substantial relation to the public health, safety, morals, or general welfare.
Factors to determine that a zoning ordinance is unconstitutional on its face.
1. Substantive Due Process
2. Burden of Proof rests on the challenging party.
3. Fairly Debateable - A court may not conduct an independent review of the wisdom or policy of a zoning ordinance; if the validity of the legistlative classification is "fairly debatable", the legislative judgment must be allowed to control.
When is a zoning ordinance unconstitutional as applied?
A zoning ordinance might be unconstitutional as applied to a particular parcel. The gov't power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use is not unlimited, and such restrictions can't be imposed if they do bear a substantial relation to the public health, safety, morals, or general welfare.
Local Gov'ts and Zoning Regulations
A local gov't has broad authority to deny zoning subdivision requests for valid health and safety factors so long as it has governing regulations, enacted pursuant to state law, which allow or require consideration of these factors.
May a board deny approval of a plan based on "potential" conflicts with its regulations?
What is the modern view of Eminent Domain in relation to urban renewal?
Allows eminent domain for urban renewal so long as it is within the power of the legislature to determine whether a community should be pretty as well as healthy.
What is an Official Planning Map?
Cities have official maps which include present and future streets and zoning decisions are based on all features of this map.
How is Public Ownership a tool for zoning?
State and local gov't can use public ownership to reach zoning goals.
In regards to Public Ownership, are gov't takings constitutional?
Gov't takings are constitutionally valid despite the process by which it's taken so long as the purpose is to promote the public welfare and there is just compensation.

Note: Under the 5th Amendment, public use is now defined by the purpose underlying the gov't action, not by the identity of the land user.
Can condemnation be used to promote the public good?
Generally, it is allowed to condemn property in order to transfer it to another private party who will develop it in a manner which promotes the public good.

Note: This is reviewed under the Rational Basis standard.
What is a Non-Conforming Use?
A use of land that lawfully existed before the zoning ordinance was enacted, but that doesn not comply with the ordinance.
What is an amortization period?
A "grace period" that puts owners on fair notice of the law and giving them a fair opportunity to recoup their investment.
What type of test is used to determine the reasonableness of an amortization period determined?
By using a Balance Test. To protect the rights of individual owners at the temporary expense of public land use objectives. Typically the period of time allowed has been measured for reasonableness considering whether the owners had adequate time to recoup their investment in the use.
What are the factors that go into determining the amortization period's reasonableness?
1. The amount of the owner's investment
2. The nature of the nonconforming use
3. Its remaining useful life
4. The potential harm to the public if the use continues.
Are amortization periods constitutional?
They're probably a violation unless owner is given a substantial period to phase out the use. (DP and Taking)
What is the ALI Code regarding nonconforming uses?
The ALI Code restricts elimination of nonconforming uses unless there is an express policy for the neighborhood to maintain its character for a substantial period.
What are the ways to restrict a nonconforming use?
1. Most ordinances bar the expansion of the nonconforming use.
2. One nonconforming use can't be transformed into a different nonconforming use.
3. While the owner of a nonfoncorming use can make minor reparis; major alterations or structural repairs that will extend the duration of the use cannot be made.
How are nonconforming uses terminated?
1. Abandonment
2. Destruction
What elements must be met to show abandonment of a nonconforming use?
In most jurisdictions, abandonment occurs only if:
1. The owner intends to abandon the use, and
2. It is discontinued for substantial use.
Can specific time periods be set to show abandonment?
Yes, some ordinances provide that discontinuance during a specific timem period, usually 6 months or a year, is sufficient to end the use regardless of the owner's intent.
Does destruction of a nonconforming use usually terminate the right to continue the use?
What is the definition of a "Vested Right"?
A landowner gains a vested right when she takes substantial steps in developing her parcel in conformity/reliance with the existing classification.
What are the factors to determine Vested Rights?
1. Type of Project
2. Location
3. Ultimate Cost
4. Principally the amount accomplished under conformity
What is the Date Certain Vesting Rights Doctrine?
Some states say the right to develop vests at the time the developer files for a building permit.
When can the doctrine of Equitable Estoppel bar a municipality from rezoning?
When the property owner has:

1. Relied in Good Faith,
2. Upon some act or omission of the gov't,
3. Made such a substantial change in position or incurred such extensive obligations and expenses that would make it highly inequitable and unjust to destroy the rights he has acquired.
Can a building permit given in error be revoked?
The majority of jurisdictions allow the permit to be revoked while the minority estop.
When amending the zoning map, is a zoning ordinance presumed to be valid?
Yes, absent proof that the rezoning decision was arbitrary or unreasonable.
What is the main limitation on rezoning?
The doctrine of Spot Zoning. Spot zoning is presumed invalid. It confers a special benefit on a small parcel of land regardless of the public interest or the comprehensive plan.
What factors are considered when applying the doctrine of Spot Zoning?
1. Size of the parcel
2. The benefits conferred on teh parcel compared to surrounding parcels
3. Any injury or detriment to surrounding landowners and the public in general
4. Changed conditions in the area, and
5. Whether the rezoning is in accordance with a comprehensive plan
What is the modern version of Spot Zoning?
Contract Zoning which is piecemeal rezoning accompanied by restrictive covenants on the rezoned land.
What is a Special Exception (AKA Conditional Use)?
Where a proposed nonconforming use is compatible with established uses, a local zoning board of adjustment may issue special exception, sometimes called a conditional use permit.
What do courts require when reviewing Special Exceptions?
Courts often require the board to state its reasons for granting or denying a request and to base its decision on substantial evidence.
How is a Special Exception different from a Variance?
1. Special exceptions involve a use authorized by the zoning ordinance, while the variance allows a use that deviates from the ordinance.
2. The concern underlying the special exception is to prevent harm to surrounding uses, while the variance serves to relieve the property from unusual hardship.
What is a Variance?
An authorized deviation from strict enforcement of the zoning ordinance in an individual case due to special hardship.
How do you show a hardship?
1. You must show that you cannot gain a reasonable return from any use allowed int eh zone currrently.
2. It must stem from the nature of the land, not owners need, and must be unique.
What are the different types of variances?
1. Area Variance
2. Use Variance
What does an Area Variance allow?
It allows modification of height, location, setback, size, or similar requirements for a use that is permitted in the zone.
What does a Use Variance allow?
It allows a use that would normally be prohibited in teh zone.
Why are Use Variances controversial?
Many jurisdictions, statues, ordinances, or case law prohibit the use variance based on teh logic that it constitutes a rezoning of the hparcel.
Is the burden of proof usually greater for a Use or Area Variance?
A Use Variance
What are the Modern Zoning Tools?
1. Contract Zoning
2. Conditional Zoning
3. Planned Unit Development
What is Contract Zoning?
Piecemeal rezoning accompanied by restrictive covenants on the rezoned land.
What is Conditional Zoning?
It closely resembles contract zoning but the city or other gov't entity makes no official promise. It identifies the conditions that must be met before rezoning is approved, but in theory, it doesn't legally bind itself to rezone the land.
What is a Floating Zone?
A new zoning district approved with specific characteristics, no specific location. A developer can then apply for a rezoning to attach the floating zone to a specific property.
What is the advantage of a Floating Zone?
It allows a city enhanced control over the location of shopping centers, industrial complexes, and other large-scale projects that may produce significant traffic, parking, and other impacts. This is valid in almost all states.
What is a Planned Unit Development (PUD)?
The expansion of cluster zoning to include non-residential uses. Within general guidelines, the owner is allowed to master-plan the specific details of a large-scale development project, including the types and locations of permitted uses. The final plan is then presented to zoning authorities for approval.
What is "Zoning by Electorate"?
Allowing the public to participate in zoning regulations through referendum or initiative.

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