Nuisances
Noise, dust, smoke, odors, fumes, airborne + waterborne contaminants, vermin, insects, vibration
What are Common Law Nuisances?
Zoning in general is constitutional, but certain provisions could be held to be arbitrary and unreasonable, and will be dealt with on a case-by-case basis.
What is Euclidean zoning?
Administrative approval granted by the Board of Zoning Appeals that allows a landowner to use his property in a manner prohibited by an ordinance.
What is a variance?
Property may be regulated to a certain extent, but if the regulation goes too far it will be recognized as a taking.
What is Mahon?
If the government were to see this as a taking, the plaintiff would be entitled to just compensation because merely invalidating the regulation is insufficient to meet the demands of the Just Compensation Clause.
Where a government's actions have already worked a taking, no subsequent action by the government can relieve it of the duty to pay compensation for the period during which the taking was effective.
What is First English?
If the level of interference meets the certain threshold, the court will either abate or shut down nuisance.
Strict win-lose
What is the threshold test?
Creates comprehensive plan, recommends ordinance in accordance with plan, and provides standards to guide application of regulations.
What is the local legislative body (or city council or planning/zoning commission)?
Administrative approval of use that is expressly allowed in an ordinance.
What is a special exception?
A regulation that prevents a common law nuisance is not a taking.
What is Hadacheck?
A takings claim is not ripe until you get a final order at the administrative level.
What is Williamson Co.?
Court will balance the harm to the defendant and the public if the injunction were granted and the harm to the plaintiff if the injunction were denied.
Strict win-lose
What is the balancing of the equities test?
Applies standards making sure ordinance is not arbitrary or unreasonable and makes factually specific findings
What is the local administrative body (or Board of Zoning Appeals)?
No other way the property can reasonably be used: land cannot earn a reasonable return without the variance, owner's plight results from unique circumstances (not general neighborhood change), and granting the variance will not alter the character of the neighborhood.
What is the unnecessary hardship test (for a use variance)?
A permanent physical intrusion/occupation is a taking.
Exception: This rule does not apply if the government is merely asserting a permanent easement that was a pre-existing limitation upon the landowner's title.
What is Loretto?
If the decision at the administrative level is unsuccessful, the plaintiff may choose to go to either state court to pursue an inverse condemnation action or to federal court.
What is Knick?
Court considers whether the utility of the defendant's conduct outweighs the gravity of harm to the plaintiff, such that with payment and modification of use, the conduct is allowed to continue.
Win-win or compromise
What is the utilitarian test?
Use was lawful under the ordinance when it was established, but became unlawful due to failure to conform with subsequently adopted amendment to the ordinance.
What is a non-conforming use?
Must prove at least inconveniance: Can you earn a reasonable return without the variance? Is the variance substantial? Would the variance have a significant impact on the neighborhood and on the provision of government services? Is there another available method? Would a variance be consistent with the spirit and intent of the ordinance?
What is the practical difficulties test (for an area variance)?
Where a regulation denies all (100%) economically beneficial or productive use of land, it will be deemed a taking.
Exception: Hadacheck, even if it denies all economically beneficial and productive use.
What is Lucas?
You are not guaranteed two bites at apple in the forum of your choice.
What is San Remo?
Consider: - Could you foresee future settlement in the area? - Did you buy the property before or after the nuisance arose? - How much did you pay for the property? - Fairness + efficiency - Being first in time
What is coming to the nuisance?
Wants to become a non-conforming use when it grows up.
Use might be protected if sufficient commitments have been made in reliance on an existing zoning requirement that was subsequently changed in a way that invalidates the proposed use.
What is a vested right?
Way to phase out non-conforming use and switch it over to a conforming use.
What is amortization?
Balance 3 factors:
1. Character of the governmental action: Was there a physical invasion by the government?
2. Economic effect of the regulation on the claimant: (1) Before + after test: Compare value of the property before and after the regulation; (2) Property as a whole analysis: Value of the property as a whole must be considered
3. Extent to which the regulation interfered with distinct investment-backed expectations: Does the regulation negatively impact future investment in the property?
What is Penn Central?
A temporary deferment of specified private action.
What is a moratorium?