Fun with Zoning
What are exactions?
OWG - RS -WW - TDL - OWN - GAFA - ATGS - TGA - COOA
Occurs when the govt requires someone who wished to develop land, or who needs governmental approval for another act to give something to the govt as a condition of obtaining approval
What is Amortization under nonconforming use?
NCUP - CFAS - POT - LE - FOOL - TR - H/HI - TME
A nonconforming use is permitted to continue for a set period of time- long enough for the owner of land to recover his/her investment and then must end
What are the limits on the ED power?
GMS - TUO - EDP - IRR - TAC -PP
Govt must show that the use of ED power is rationally related to a conceivable public purpose
First ask: Are you dealing with a physical taking (eminent domain) or a regulatory taking.
What should you issue spot for ED?
ED > The govt acknowledges that it is taking property
Issue spot > Is the taking for a public use and has just compensation been paid?
What's the Rational Basis Test?
ALU - RW - BU -UC - AU - HNS - RT - PHS - MOGW
A land use regulation will be upheld unless it's clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals, or general welfare
AKA > Euclid Test
What are two ways to eliminate a nonconforming use?
AM
AB
1) Amortization
2) Abandonment
What does the "nor shall private property" element entail?
AE - AFI - IRP - AT - AI - PP
All estates and future interest in real property and tangible and intangible personal property
What does the "without just compensation" element entail?
SPH - JCI - FMV
Sup Ct has held that "just compensation" is "fair market value"
What a willing buyer would pay a willing seller in a voluntary transaction
Next Ask > Does the regulation fall under a categorical (per se) rule?
APP
RIW - RTE - INS - TAE
Appropriation > Regulation interferes with the right to exclude and is not subject to an exception (cedar point nursery)
What's exclusionary zoning?
PMK - ECA
Policies meant to keep economic classes apart
What is the spot zoning rule?
1) SSP - LUM -IT -OPL -UA
2) PB - O - NGP
1) Singles out a small parcel of land for use in a manner inconsistent with the other predominant land uses in the area;
2) Primarily for the benefit of the owner and not the general public
What is The Takings Clause?
NSP - PBT - FPU - WJC
Nor shall private property be taken for public use without just compensation
What is the basic principle of eminent domain?
ED - IG - IP - TPP - BFS
ED is the govt's inherent power to take private property by forced sale
Next Step > If you conclude that the alleged taking is regulatory?
EI - IG - DT - PO - GUP - ROSE - OVE - FGA
If Exaction - Apply Nollan or Dolan
Exaction is if the govt is demanding that the property owner give up a property right or something else of value in exchange for governmental approval
What is nonconforming use?
ALE - USO - LTD - NC - TA - ZO
Any lawfully existing use of a structure or land that does not conform to the applicable [zoning ordinance]
What is a variance?
AET - ZC - GTO -PP
An exception to the zoning code granted to one particular property
What does the "be taken" element entail?
GOS - FOT - U - ABP - PP
Govt is obtaining some form of title, usually accompanied by permanent physical possession
What is the regulatory takings doctrine?
ART - GTF - IT - RC
A regulation that goes too far is a taking requiring compensation
When you don't apply a categorical rule, what would you apply?
Penn Central Factors
Under nonconforming use, what is abandonment?
INC - UC - FSPOT - WV - BJ -IM -NR
If a nonconforming use ceases for some period of time, which varies by jurisdiction, it may not resume
What does the property owner have to show for the variance rule?
1) TEZ - OT - BP -WUH
2) TUP
3) TH- NSI
4) TGV -NH - AI -PHSW
5) TVS - MV- AR
1) That the effect of the zoning ordinance is to burden property with an unnecessary hardship
2) That is unique to the property
3) That the hardship was not self inflicted
4) That the granting of a variance will not have an adverse impact on the public health, safety and welfare; AND
5) That the variance sought is the minimum variance that will afford relief
What are the exceptions to the cedar point nursery rule that almost any regulation that interferes with the right to exclude is a per se taking?
1) I- PI
2) PITA - CW - LBR - OPR
3) MGA - ACO -RCB
(1) Isolated physical invasion
(2) Physical invasions that are consistent with longstanding background restrictions on property rights and
(3) Mandatory govt access as a condition of receiving certain benefits
What is reciprocity of advantage?
COT - TBIO - POB - TRA - OBT - BF -THAM - OPF - TSR
The concept or theory that the burdens imposed on the property owner by the regulation are offset by the benefits flowing to her as a member of the public from the same regulation
What are the 3 Penn Central Factors that the courts will balance?
1) EIC
2) EWR - HI - WDI - BE
3) COGA
1) Economic impact on the claimant
2) Extent to which regulation has interfered w/ distinctive investment backed expectations
3) Character of the govt action