Zoning & Land Rights

Question 1

What are lateral support rights?

Answer 1

Common law doctrine that states landowners have the right to land that has not been affected by excavation or improvements.

Ex. If your next door neighbor digs a cave next to your house, and your land starts to collapse as a result, your lateral support rights have been violated.

Question 2

If a landowner excavates his own land and damages the adjoining land, will the landowner be liable if the land is in its natural state?

Answer 2

Yes, the landowner will be strictly liable for the damage.

Question 3

If a landowner excavates his own land and damages the adjoining land, will he be held strictly liable if the adjoining land has been improved (i.e. not in its natural state)?

Answer 3

The landowner will be held strictly liable only if the land would have collapsed regardless of the adjoining land’s improvement.

However, if improvement contributed to the collapse, the excavating landowner will only be liable if he was negligent.

Question 4

What are subjacent support rights?

Answer 4

Surface structures have the right to support from underneath the land. (Subjacent means “underground”).

Important if a landowner allows another party to mine, tunnel, or build an underground parking structure. The other party must ensure surface structures are adequately supported.

Question 5

If a third party has underground (subjacent) rights, will they be liable if they damage the surface structures?

Answer 5

• If the structures existed at the time of conveyance → third party will be strictly liable.
• If the structures were built after conveyance → party will be liable for negligence.

Question 6

What are riparian rights and what are the two main approaches?

Answer 6

Rights to use water from watercourses (streams, rivers, lakes) that border one’s land.

Governed by either:

1. Riparian Doctrine; or
2. Prior Appropriation Doctrine

Question 7

What is the Riparian Doctrine view of water rights?

Answer 7

Water belongs to those who own the land bordering the watercourse (“riparians”).

Adopts the “reasonable use” standard: riparians have the right to reasonable use of the water & cannot unreasonably interfere with another’s riparian rights.

⚠️ Note: Natural use trumps artificial use.

Question 8

What is the Prior Appropriation Doctrine?

Answer 8

The first person to make beneficial/productive use of the water has the legal right to continue using it (e.g. using the water for crops).

⚠️ Note: Natural use trumps artificial use

Question 9

What are the rights for groundwater?

Answer 9

Surface owners can make reasonable use of the groundwater (also called correlative rights).

Question 10

What are surface water rights and the 3 governing approaches?

Answer 10

Rights to water that is either from rain, springs, or melted snow that is not part of a waterway.

1. Common-enemy doctrine: owner can make changes to combat flow/drainage but can be liable for negligence if they damage another’s land
2. Natural flow theory: owner cannot make changes to combat flow
3. Reasonable use theory: owner can make reasonable changes to combat flow, balances harm vs. utility

Question 11

What are air rights?

Answer 11

Landowners have right to use and enjoy airspace above their land as long as it doesn’t interfere with another’s use and enjoyment.

Question 12

What is zoning and from where is the power derived?

Answer 12

Governmental regulation and control of land use. Derived from the police powers.

Question 13

What types of zoning regulations are invalid/void?

Answer 13

• Discriminatory against suspect class (must show discriminatory purpose, not just effect);
• Not rationally related to the general public welfare;
• Unauthorized or in excess of authority; or
• Too restrictive

Question 14

When does a zoning regulation constitute a regulatory taking?

Answer 14

When it deprives the owner of ALL economically viable use.

More info: Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)

Question 15

Is the right to housing a fundamental right?

Answer 15

No.

Question 16

Is the right of family members to live together a fundamental right?

Answer 16

Yes (includes extended family members).

Question 17

What are zoning variances?

Answer 17

Exempts property owner from certain zoning restrictions.

Question 18

What must the owner prove to receive a zoning variance?

Answer 18

1. Compliance would create undue hardship that is unique to the property and not the fault of the owner;
2. Variance doesn’t go against general purpose of the ordinance; and
3. Variance doesn’t harm the general welfare

Question 19

Differentiate between area and use variance

Answer 19

Area: restriction on development/construction of property (e.g. no third story).

Use: restriction on use (e.g. no commercial use in neighborhood).

Question 20

What is a noncomforming use?

Answer 20

When new zoning regulations make an existing property use unlawful/nonconforming.

Question 21

Can zoning eliminate nonconforming uses all at once without compensation?

Answer 21

No, because it would constitute an unconstitutional taking.

Question 22

What is amortization?

Answer 22

Period of time during which nonconforming use is gradually phased out (e.g. amortization period of one year).

⚠️ Note: Amortization is unconstitutional in some states.

Question 23

Define

nuisance

Answer 23

Unreasonable interference with use and enjoyment of one’s land.