Land Use Authority

Question 1

Land Use Regulation

Land use regulations start with what?

Answer 1

A comprehensive plan that sets out the development of land within the local government’s jurisdiction

The plan is prepared by a local planning commission and is designed to set forth a guide
as to how land should be used within the territory.

Question 2

How often is a land-use plan reviewed?

Answer 2

at least once every 5 years

Question 3

Local governments have the power to enact zoning ordinances, which….

Answer 3

divide up land into different zones, each of which has different rules about the uses allowed (e.g., residential, commercial, industrial) and the heights and densities of buildings in the zone.

Question 4

Zoning laws are considered ____________ decisions and are presumed ________, meaning…

Answer 4

1. legislative
2. reasonable
3. meaning they will be upheld if fairly debatable.

Question 5

Who bears the burden of proving that a zoning ordinance is unreasonable?

Answer 5

The party challenging the zoning decision

Question 6

Zoning laws are enforce by who and who hears the appeals from those decisions?

Answer 6

Zoning laws are enforced by the local zoning administrators and appeals from those decisions are made to the local board of zoning appeals (“BZA”).

Question 7

What power does the local zoning administrator have?

Answer 7

• enforce zoning laws
• order land owners to remedy zoning violations on their land
• bring legal actions to ensure compliance with ordinances

Question 8

When must a notice of appeal form an administrative decision or order be filed?

Answer 8

Within 30 days of the decision

Question 9

Decisions of the Board of Zoning Appeals can be appealed where and when?

Answer 9

Circuit court within 30 days of the BZAs decision

Question 10

When will a BZA decision be overturned?

Answer 10

The BZA’s decision is presumed to be correct and will only be overturned by a circuit court if it is plainly wrong

Question 11

The BZA can grant variances, which are?

Answer 11

exceptions to local zoning ordinances and allow land uses that would otherwise be impermissible.

Question 12

Variances can only be granted if the landowner shows two things

Answer 12

1. strict enforcement of the zoning ordinance would result in undue hardship; and
2. that granting the variance would not be substanbtially detrimental to other property

Question 13

The BZA can issue special use permits, which

Answer 13

conditionally allow for certain land uses in certain zoning districts. Examples of land uses requiring special use permits include airports or certain industrial activities.

The authority to grant special use permits may be delegated to the BZA or retained by the local governing body.

Question 14

How do developers get approval for a planned development?

Answer 14

1. Local governments are required to enact a subdivision ordinance that regulates the development of subdivisions.
2. Developers must submit a subdivision plat for approval that lays out their planned development.

Question 15

If a subdvision plat is disapproved, the developer can appeal to who and what must they show?

Answer 15

the developer may appeal to the circuit court and must show that the decision (i) was not properly based on the subdivision ordinance or (ii) was otherwise arbitrary and capricious.

Question 16

What must developers normally obtain to construct a home or business?

Answer 16

a building permit

Question 17

Local governments issuing building permits are acting in a ____________ capacity, which means …

Answer 17

1. governmental
2. issuing a building permit does not estop the municipality from revoking the permit or enforcing a zoning ordinance against the builder

Question 18

Building permits mistakenly granted in violation of ordinance are legally …

Answer 18

void

Question 19

A right to develop property vests when the owner (3 things)

matters because zoning laws change

Answer 19

1. is a beneficiary of a significant affirmative governmental act
2. Has relied in good faith on that act; and
3. Has incurred substantial obligations or substantial
   expenses in pursuit of the development.

A “significant affirmative governmental act” means a tentative agreement to let the land be developed and includes the granting of a special use permit or the approval of a preliminary subdivision plat

Question 20

When can local governments condemn private property for public use?

Answer 20

When they provide just compensation

Question 21

What type of property interest can be taken under eminent domain?

Answer 21

land and buildings, easements, and sand, earth, gravel, water, or other materials necessary for making, repairing or maintaining a road

Question 22

How far does the eminent domain power extend?

Answer 22

Only extends to property in the municipality’s jurisdiction

Question 23

Eminent domain

What does public use mean and what does it include?

Answer 23

Public use means property taken for public ownership, occupation and enjoyment. This includes:
* Construction of public facilities, like airports or libraries;
* Creation of public service corporations or railroads, or the provision of any authorized utility service;
* The taking of property to eliminate blight, provided that the property itself is blighted; and
* In limited circumstances, the taking of abandoned property for redevelopment or conservation

Question 24

Public use does not include takings …

Answer 24

to improve the tax base or for the creation of jobs

Question 25

How much private property can be taken for public use?

Answer 25

No more private property may be taken than that which is needed to achieve the stated public use.

Question 26

What is just compensation?

Answer 26

fair market value at the time of the taking. The calculation includes consideration of the property’s adaptability and suitability for any legitimate purpose in light of the conditions and circumstances at the time.

Question 27

What must the local government do before condemning and taking private property?

Answer 27

Make a bona fideoffer to purchase the property, unless the owner is unable to confer legal title because of a disability or some other reason, is unknown, or cannot be located within the state

Question 28

If the bona-fide offer is rejected (or not required), the local government must…

Answer 28

file a petition for condemnationin the circuit court in the county or city where the subject property, or the greatest portion of it, is located. The petition must do five things:
1. Describe the property to be taken;
2. Describe the estate, interests, or rights to be taken;
3. Identify the authority for the taking;
4. Identify the necessity for the work or improvements to be made; and
5. Identify the public use or uses for which the property is to be taken.

Question 29

Can cities and towns sell their rights to public spaces?

Answer 29

No

This restriction does not apply to counties.

Question 30

Can cities and towns sell their water or electric works?

Answer 30

Yes, by obtaining three-fourths vote by all elected members of the governing body

This restriction does not apply to counties.

Question 31

How long can cities, towns, counties franchise, lease ,or grant any kind of use of public property?

Answer 31

40 years, except for air rights, which can be leased for up to 60 years