Midterm

Question 1

What is Substantive Due process

Answer 1

1. Effective in promoting
2. Legitimate area of government control
3. Not arbitrary or capricious

Question 2

Definition of Law

Answer 2

is a system of rules and regulations of values that are set by elected government officials that are accepted by society to direct behavior and punishment

Question 3

4 areas that are needed for a law

Answer 3

i. Norms
ii. Authoritative
iii. Governs behavior
iv. Enforceable by sanction

Question 4

Practice of Law

Answer 4

giving legal advice to clients, drafting documents for clients, and representing in a legal negotiations and court proceedings

Question 5

3 items to define the practice of law

Answer 5

i. Application of law on a complex set of facts that a reasonable person would expect another person to act
ii. Advice to another
iii. With (reasonable) expectation of action of a reasonable person

Question 6

what is a common law

Answer 6

is set by a residence or a previous case

a. Laws of the land
b. Most has to do with property
c. Remnants of the futile land tenure system (from Roman Empire)
d. When similar cases/disputes came up, they resolved them in the same way as the Law was made.

Question 7

Definition of Nuisance

Answer 7

Unreasonable interference with the right of quiet enjoyment, or ability to use their property with how they see fit

Question 8

In Nuisance, what are some Unreasonable interferances

Answer 8

a. Minor discomfort
b. Gravity of time
c. 1st in time
d. Responsibility of Defendant (gravity of harm)
e. Context
f. Social Utility

Question 9

How can a Nusiance be argued

Answer 9

i. Interference with a zoning property right, not a HSW issue. They run parallel and don’t intersect (don’t have anything to do with the other) as well as unreasonable intererances

Question 10

What is an Easement

Answer 10

• recognition by a court of the transfer of owner ship of some property interest
• the right to be or have presence or to use a part of someone else property

Question 11

What is a prescriptive easement

Answer 11

hat is earned by regular use – it is not something that is purchased, negotiated, or granted. A prescriptive easement is simply a right to use property, the user does not gain title to the land

i. Long-term use- Statutory period (Utah is 20 years
ii. Open use that is adverse
iii. Claim of right
iv. Without Consesnt

Question 12

What are Restrictive Covenants

Answer 12

CC&Rs, HOA formation are a special kind of contract or agreement. It is a type of encumbrance. They run with the land. But to have that binding effect

Question 13

4 things required for a Restrictive Covenant

Answer 13

i. Intention – show evidence intention to run with the land.
ii. Touch/concern the land – a direct connection and some sort of restriction. Burden has to do with owning specific piece of land. ??? 2.5 pages later… “that a covenant which runs with the land must affect the legal relations – the advantages and the burdens – of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general, such as taxpayers or owners of other land.”
iii. Privity – benefit shall run to the assigns of the grantor who “may include a Property Owners’ Association which may hereafter be organized for the purposes referred to in this paragraph.”
iV. Restricts in some way the bundle of rights

Question 14

Legislative

Answer 14

i. Creates Laws
ii. Broad in application
1. Applies to the broader population
2. Applies to a broad geography

Question 15

Administrative

Answer 15

• The application of the Law
• role of administrator is given to anyone designated by the city council such as the planning commission, or in some cases the city council themselves.
• Narrow in application
  1. Generally site specific
  2. Generally single person specific.

Question 16

What are Legislative actions

Answer 16

i. Must represent a legitimate government interest
ii. Must in a reasonably debatable way promote the health, safety, and welfare of the people
iii. The action cannot be arbitrary or capricious.
iv. Must be given a substantive due process

Question 17

what is a General Plan

Answer 17

i. Goal or Aspiration in Nature
ii. Future Oriented
iii. Historically Based
iv. Geographically Rooted

Question 18

The Hierarch

Answer 18

i. Municipal Charter (mission statement)
ii. General Plan
iii. Zoning Ordinance, Subdivision ordinance, Building Codes, Capital Improvement Programs

Question 19

What is a Variance

Answer 19

A request to deviate from current zoning requirements. Can permit an owner of a property to use it in a way that is not generally allowed

Question 20

How do you justify a Variance (4 criteria)

Answer 20

i. Unnecessary hardship exists which is not created by the party seeking the variance
ii. Enable the parties reasonable use
iii. Will not alter the essential character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public’s welfare
iv. Least intrusive solution

Question 21

What is a Conditional Use Permit

Answer 21

a. Allows a city or county to consider special uses for land that may be needed or desired by a particular community. It is normally granted through a public hearing.

Question 22

What must Conditional Use Permits Comply with

Answer 22

1. That the establishment, maintenance or operation of the special use will not be unreasonably detrimental to or endanger the public health, safety, morals, comfort or general welfare;
2. That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood;
3. That the establishment of the special use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district;
4. That adequate utilities, access roads, drainage and/or other necessary facilities have been or are being provided;
5. That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in public streets;
6. That the special use shall in all other respects conform to the applicable regulations of the district in which it is located, except as such regulations may in each instance be modified by the city council pursuant to the recommendations of the zoning board of appeals.”

Question 23

What is a non-conforming use?

Answer 23

A use that is not allowed in the current Zoning

Question 24

In non-conforming uses, what are the 5 ways to argue a non conforming use

Answer 24

i. Established
1. It was legal when it started. You started use before that zone was created
2. Zoning changed to be inconsistent
ii. Expanded
1. Added buildings for that use- trailer in the ice cream place
iii. Abandonment
1. Cessation- the hault of the use
2. Intent
iv. Destruction
v. Amortization
1. Phasing out
2. Useful life of what they are using it for
a. Most buildings have this
b. Appraisals use this as well

Question 25

Define Vested Rights

Answer 25

The vested rights doctrine is the rule of zoning law by which an owner or developer is entitled to proceed in accordance with the prior zoning provision where there has been a substantial change of position, expenditures, or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance. B. Late Vesting Rule - Substantial funds or plans must have been deployed in order for the permit to vest. C. Early/Utah’s vesting rule - In utah your rights are vested when you turn in a complete application for a permit.

Question 26

What is a Developer agreement

Answer 26

Agreement between the developer and municipality. Another form of land use regulation. Conditions put on permit approvals in which the developer is promising to municipality to a certain standard in return for approval? 1. Must meet Substantive Due process a) Legitimate governmental purpose (to protect health, safety, and welfare) b) Reasonably debatable that the law will achieve the legitimate government purpose. c) Action Cannot be arbitrary or capricious

Question 27

Limitations of a developer agreement

Answer 27

They have the same limitation as other legislation Must be for the public good

Question 28

What is Zoning

Answer 28

i. Based on Police Power: Authority to regulate behavior for the benefit of the communities Health safety and Welfare. Substantive Due Process:i. Action effectively promotes communities HSW that is not arbiturary or capricious

Question 29

What is an Accessory use

Answer 29

are uses of land that are found on the same parcel as the principal use but are subordinate and incidental. i. Customary- not unusual ii. Incidental- secondary iii. Subordinate- smaller in size

Question 30

Subdivision

Answer 30

legally separating a larger parcel of land into smaller with the intent to transfer tilte i. Must be recorded with deeds and plat maps ii. Limits infrastructure capacity and function iii. Safety iv. Creates value

Question 31

15. Exactions

Answer 31

i. Are burdens or requirements a local government places on a developer to dedicate land or construct or pay for all or a portion of the costs of capital improvements needed for public facilities as a condition of development approval. ii. A condition of approval 1. Must have an logical connection an Essential nexus Nolan v. Cali costal

Question 32

Regulatory Taking

Answer 32

i. situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property

Question 33

What do Regulatory Takings accomplish

Answer 33

1. Authorizes physical invasion 2. No economic value a. Wipes out all value b. Exceptions 1- Nuisance 2- Right wasn’t owned 3. Partial taking a. Economic impact 1- On a scale by % b. Investment- backed expectations c. Character of the regulation

Question 34

What is public use taking

Answer 34

i. Part of the fifth Amendment- “Nor shall ‘private property’ e taken for ‘public use’ without just compensation 1. Legitimate purpose a. HSW 2. Rational Means

Question 35

Elements/Requirements of Substantive due process

Answer 35

a) Legitimate governmental purpose (to protect health, safety, and welfare) b) Reasonably debatable- that the law will achieve the legitimate government purpose. c) Cannot be arbitrary or capricious

Question 36

B. Procedural Due Process----1. How to distinguish between Legislative and administrative actions

Answer 36

Legislative-------------------Administrative Making law-------------------- Interpreting or applying law People affected: Many------Few Geography: Broad-----------Narrow

Question 37

B. Procedural Due Process--The differences that that distinction makes- what does it mean

Answer 37

``` Administrative- A. Send a notice B. They can attend a hearing C. right to submit evidence- (evidence = fact + criteria) D. Reasoned Result- criteria + fact=result Legislative- A. Referable B. Clamour ```

Question 38

Water law- what is Riparian Rights

Answer 38

Eastern States 1. Acquisition based on land ownership 2. Adjacency – Required but severable 3. Transportable – must stay in the water shed 4. Amount – a reasonable amount 5. Abandonment – It goes with the land 6. Shortage – reasonableness changes with how much there is

Question 39

Water Law- what is Prior Appropation

Answer 39

Western States 1. Acquisition through intent to divert it out of its course and used for a beneficial use (agriculture, mining, manufacturing, 2. Adjacency – Is irrelevant 3. Transportable – Can be taken anywhere 4. Amount – based on a beneficial use over time 5. Abandonment – 8 years of non-beneficial use “use it or lose it” 6. Shortage – there are priorities – first in time first in right

Question 40

a. What is the basic structure for A.Q. Planning?

Answer 40

i. EPA Requires- States create State Implementation plans to achieve compliance with the NAAQ’s ( NAAQS: numeric and measurable standards for 8 Criterion pollutants) requirements. And delegates power to the states to accomplish the goals. State can then delegate authority to a different state agency to create the plan. 1. Plan Identifies (state implementation plan (SIP)) - Three types of polluters – point source (smoke stack), mobile sources (cars), Indirect Sources 2. Often Creates Graduated Impact fee: Impact fees based environmental impacts. Greater environmental impact based on a logical and thought out metric (rough proportionality) = level of impact fee.

Question 41

Purpose of Form Base Code

Answer 41

Form based code is ordinance focused on the envelope of a building and its interaction with the street trying to encourage community and a uniform development pattern. Often these codes are focused on long accepted urban design principles like eyes on the street and a healthy mix of uses and the requirement of durable materials and finishes.

Question 42

How does Form Base Code achieve its purpose

Answer 42

They accomplish this purpose by giving a framework for development focused on the design of the buildings and how they interact with the street without restricting the use in the building. This allows for the neighborhood to grow and evolve in its uses and intensities.

Question 43

What is the Fair Housing Act

Answer 43

i. Differential treatment between those who are similar ii. Based on protected class status iii. Impact, must show it made impact iv. Compelling governmental interest- the differential treatment serves a... v. Narrowly tailored - The method chosen cannot be broad

Question 44

How is the Fair Housing Act different from an equal protection-based claim

Answer 44

1. Based on discriminatory intent as opposed to disparate impact

Question 45

what are accessory dwelling units and their factors

Answer 45

Secondary dwelling units that are allowed by ordinance. Often called “Granny Flats”. i. Factors: 1. Size of unit 2. Owner occupied primary residence 3. Occupancy maximum 4. Parking 5. Number of units.

Question 46

What is Inclusionary Zoning

Answer 46

A regulation that requires new residential developments to make a certain percentage of the housing units affordable to low- or moderate- income residents. Is an affordable housing tool that links the production of affordable housing to the production of market-rate housing.

Question 47

How are Inclusionary zoning legal

Answer 47

they need to have a central nexus; better for the HSW; required for all new development.

Question 48

What is a Permit Variance

Answer 48

Permission granted on a case by case basis to allow development despite development standards.

Question 49

Elements to argue a permit variance

Answer 49

(1) Necessary Hardship (2) Cannot be caused by owners (3) Unique physical attribute (4) Needed (5) Least intrusive (6) Character

Question 50

What are the 7 property rights

Answer 50

1. Quiet Enjoyment 2. Exclusive Possession 3. Right to Alienate (Sell, transfer, lease) 4. Air Rights 5. Subsurface Rights 6. Water Rights 7. Development Rights

Question 51

What is the practice of Law? 3 items

Answer 51

1. Giving of Advice to Others 2. Application of Legal principles to a specific complex set of facts 3. In a context where the recipient is likely to act.