Property Topics and Concepts Flashcards
Flexible Zoning Techniques
a zoning district that delineates conditions which must be met before that zoning district can be approved for an existing piece of land. Rather than being placed on the zoning map as traditional zones are, however, the —– zone is simply written as an amendment in the zoning ordinance. Thus, the zone “—-“ until a development application is approved, when the zone is then added to the official zoning map. —- zones can be used to plan for future land uses that are anticipated or desired in the community, but are not confirmed, such as affordable housing, shopping centers, and urban development projects. They can also be used for cluster zoning, planned-unit developments (PUDs), and urban development projects.
Floating Zone
Flexible Zoning Techniques
zoning to a specific parcel or parcels of land within a larger zoned area when the rezoning is usually at odds with a city’s master plan and current zoning restrictions. —- may be ruled invalid as an “arbitrary, capricious and unreasonable treatment” of a limited parcel of land by a local zoning ordinance.[1] While zoning regulates the land use in whole districts, —-zoning makes unjustified exceptions for a parcel or parcels within a district.
Spot Zoning
Flexible Zoning Techniques
zoning district which is applied over one or more previously established zoning districts, establishing additional or stricter standards and criteria for covered properties in addition to those of the underlying zoning district. Communities often use —– zones to protect special features such as historic buildings, wetlands, steep slopes, and waterfronts. —- zones can also be used to promote specific development projects, such as mixed-used developments, waterfront developments, housing along transit corridors, or affordable housing.
—- have the potential to be very effective governmental regulatory tools. Since they tailor regulations to specific properties and districts to meet specific community goals, they can be more politically feasible to implement and can help communities meet stated goals or address specific inequities. On the other hand, they can create inefficiencies and inequities by applying regulations and restrictions to some properties and not others. Moreover, additional regulations may increase time and expense both for developers and for the public bodies involved in the development approval process.
Overlay Zones
Flexible Zoning Techniques
voluntary agreement between a landowner and a land trust or government agency that permanently restricts the use of land to protect its values. It’s a deed restriction that limits development and other uses to ensure the property remains in its natural state. The landowner retains ownership and can continue to use the land for certain activities, as long as they don’t conflict with the —– goals.
* permanent, legally binding, difficult to extinguish
Conservation Easement
Flexible Zoning Techniques
— allows a developer to develop in a way that ordinarily would not be permitted in exchange for a public benefit that would otherwise not be required. Often written into the zoning ordinance, —— allows the city to leverage variations in existing zoning standards and obtain public goods. For example, a developer may provide schools, parks, open space, plazas, low-income housing, or money, in exchange for greater flexibility in required building setbacks, floor heights, lot area, parking requirements, number of dwellings, and other minimum standards. ——- vary by location, but governments usually calculate the ——— to balance the public advantage with the developer’s costs and gains.
Since —– is intended to produce specific public amenities and types of development, it can be an effective tool for communities wishing to accomplish goals in a specific neighborhood or outlined in the comprehensive plan. It also can help increase the number public goods available in the community. Communities with a high demand for land, well-established standards and demand for specific amenities may benefit the most from using ———. For communities considering ———, it is important to consider the hidden costs that might be associated with the project, including those that might be difficult to calculate in the long-term, such as infrastructure challenges, congestion, etc.
Incentive Zoning
Flexible Zoning Techniques
An alternative to the traditional, conventional zoning method, ——– regulate development by setting the desired goals to be achieved by regulation rather than regulating how those community goals are met. Instead of restricting specific uses on a property, —— requirements allow any use that meets the set —–.
For example: a city ordinance might specify that all residential swimming pools must be completely screened from the public, but not require which materials be used to do so. ——— attempt to address the same goals desired by traditional zoning ordinances, such as environmental protection, neighborhood character, traffic control, etc., but with a greater amount of flexibility.
++: maintain that the —– are a rational way of codifying values and goals without being overly restrictive on how those goals are accomplished.
–: the incredible flexibility of the standards makes administration of —– ordinances difficult, expensive, and ultimately too unpredictable for residents to rely on. Politically,—–ordinances can be difficult to adopt for this reason. The ability of —– to accomplish targeted goals, however, has led some communities to include some ——in their conventional zoning structure.
Performance Requirements/Standards
Lane Kendig wrote the standard boo on Performance Zoning; it is also the least predictable zoning type
Flexible Zoning Techniques
local policy instrument that combines traditional zoning and subdivision regulations, along with other desired city regulations, such as design guidelines, sign regulations, and floodplain and stormwater management, into one document.
–> **streamline and coordinate the development process of permits and approvals for development projects by removing inconsistencies and eliminating outdated policies. **The required permits, processes, and regulations for the development process are outlined in one place, making it easier for developers, the public, and public entities to understand the requirements. Along with the compiling of regulations and policies, —- use clear, consistent language and definitions, with many illustrations and tables, often in attractive, easy-to-read formats to further help stakeholders understand the regulations.
–> lead to fewer legal challenges since they tend to reduce number of inconsistencies in municipal regulations.
most useful for cities experiencing rapid growth, where the streamlining of varied or complex development or enhanced control over economic development is desired vs. Smaller, poorer, communities therefore might find the cost of —- to be prohibitive. On the other hand, larger cities, where the rate and diversity of development is greater, might require more sophisticated ordinances and a more complex growth management package than a —- can provide.
Unified Development Ordinance (UDO)
- Typically illegal;
- Landowner agrees to restrictions in exchange for more favorable zoning treatment; standards not contained with the zoning regulations
Contract Zoning
Flexible Zoning Techniques
- Can be legitimate or not
- –> reduce intensity, whether it’s use/density/etc.
- Can be used illegitimately, EX: Mt. Laurel cases where you don’t allow mixed-use or density and —- everything to 1 unit per 5 acres , so that parcels would be expensive and keep out poorer residents
Downzoning
Growth Management Tools
market tool communities can use to achieve land preservation. The preservation is accomplished by allowing one landowner to sever her —— rights in exchange for compensation from another landowner who wants her development rights to increase, going from a predetermined lot — known as a sending area — to another lot, known as the receiving area. Thus, while the —– are reduced or severed on the sending area, increased density and —– is allowed on the receiving area. The sending sites are typically deed-restricted so that only appropriate uses are allowed from the rights sale onward. —- programs can be mandatory or voluntary.
With mandatory —- programs, the sending and receiving areas are pre-designated by downzoning the sending areas and decreasing the base density of the receiving areas so more development rights must be purchased in order to build at higher densities.
With voluntary —– programs, the sending areas are not downzoned. Instead, owners retain the option to receive payment for —– on their property; these transferred rights are known as development credits.
usually the most helpful in communities experiencing rapid greenfield development in relatively rural and pastoral areas
can only work in communities where there is demand for high-density zoning and a general consensus on preservation goals. Further, community education is essential, otherwise the resistance to the program could make the program politically infeasible to adopt. —– also require a lot of time and planning to restructure the zoning, and require an oversight agency to regulate the market, so the program can have higher administrative costs than traditional zoning.
Relevant cases: Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (U.S. 1978); and Fred F. French Investing Co. v. New York, 39 N.Y.2d 587 (N.Y. 1976)
Transfer of Development Rights
Nonprofits (Nature Conservancy) and the government can buy —– and create a conservation easement
- Provide a way to financially compensate willing rural landowners for not developing their land
- Federal, state and local governments can use this to permanently restrict development
- a landowner sells their —- to the local government to permanently protect the land.[1] If properly drafted, this results in privately owned land that cannot be developed in a way detrimental to wildlife, even if the current owners sell the property, and it provides financial compensation to the landowner.
Purchase of Development Rights
growth management tool used by local governments to require developers to make a percentage of housing units in new residential developments affordable to low income households.
* Same as incentive zoning
* affordable percentage from 10 to 25%
* mandatory: developers build affordable housing in exchange for development rights
* legal challenges: can be seen as improper takings, developer exactions
* allows for mixed income communities
* most successful in high ppulation communities or those that are growing with high residential development demand
* result in cost shifting to market share resdential
Case(s): Southern Burlington County NAACP v. Township of Mt. Laurel, 456 A.2d 390 (N.J. 1983) (Mt. Laurel II).
Inclusionary Housing Regulation/Inclusionary Zoning
Growth Management Strategy
creates a redevelopment district in which infrastructure improvements and/or project developments are financed based upon an anticipated future increase in property values.
* development imrpovements will eventually lead to higher property taxes
* initiated by private developer or municipality itself
base property value is fixed with increase acccrued to redevelopment authority
* set between 5 and 30 years
* after time period ends, money goes from redevelopment authority back to municapily, county, schools
courts have required:
(1) a finding of blight in the redevelopment area, and evidence that the investment will not only improve the area, but allow for a change in assessed value; or (2) a showing that “but for” the financing, the intended project would not be able to come into fruition. The recent trend, however, has been a loosening of those standards as local governments have increasingly seen the need to offer developer incentives to attract business. :(
–: result in gentrification, give too many incentives to developers who would have built in the area otherwise, taking away more government funding
Tax Increment Financing
requirement imposed by a municipality on a developer to provide a public benefit as a condition of land development. These requirements often aim to mitigate the negative impacts of the development on the community, and are often related to infrastructure, parks, or other public facilities
Has to have essential nexus (Nollan) and rough proportionality (Dolan)
Exactions
Growth Management Tool
tool communities use to help coordinate the timing and provision of public infrastructure with new development; allows the government to delay new development projects by prohibiting the issuance of development permits if existing government services, such as water, sewer, roads, schools, fire, police, etc., cannot support the development. Before the developer can apply for development permits, she must be able to show that there are adequate resources currently available in the community.
* If the government denies the developer permits due to the unavailability of resources, the government’s capital improvement plan must show a good faith effort to make those resources, or infrastructure, available.
* cost effective land use tools for pacing development and growth, especially in areas with a robust housing market
* Consequences: (1) discouraging infill development, forcing developers to leave and develop in other communities, and creating de facto moratoria (suspension or halt of an activity, not due to an official law or agreement, but in practice, often due to a lack of resources or will to enforce the activity).
(2) quite data intensive and require a number of experts to design the standards and administer the program
* effective when coupled with CIP and govt commitment to providing necessary facilities
–> control the pace of development
Cases and legal implications: Golden v. Town of Ramapo (1969) , challenged as unconstituional violations of Due Process, Equal Protection and the Just Compensation clauses
Adequate Public Facilities Ordinances (APFO), a.k.a. Concurrency
Grwoth Management Tool
help pay for the expansion of public infrastructure by requiring developers to directly pay their proportionate share of the costs to the municipality.
* Type of exaction
* Help ensure that there is an adequate availability of public facilities and facilitate fiscally responsible growth.
Usually charged when the occupancy permit is issued, — can only be used to help offset the costs associated with that particular development. The funds cannot be charged to correct existing deficiencies in public facilities in the community at large.
* Helpful for communities dealing with igh residential population growth that are seekign ways to reduce economic burden on existing residents
* developers can shift the cost to homebuyers and decrease affordable housing
Legal implications: some courts have applied “rational nexus” or that this needs to be “reasonably related” or “specifically and unqiuely attributable”
Impact Fees
requires access to a public way over adjacent land if crossing that land is absolutely necessary to reach a landlocked parcel and there has been some original intent to provide the lot with access, and the grant was never completed or recorded but is thought to exist
EX: easements for flag lots
Easement by Necessity
sometimes called squatter’s rights, is a legal principle that allows someone to gain ownership of land they occupy for a certain period, even if they don’t have legal title to it. In Illinois, this generally requires continuous, hostile, actual, open, and exclusive possession for at least 20 years.
Adverse Possession
allows the easement holder to prevent the grantor of the easement from doing something on their land that is lawful for them to do, such as building a structure that obscures light or a scenic view.
Negative easement
—grants the holder the right to use or do something on another person’s property. This right allows the easement holder to take some action on the land, such as accessing it, building on it, or running utilities through it. Essentially, a — allows the holder to benefit from the servient tenement in a positive way
Positive easement
implied easement granted after dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years
EX: school children cutting across your backyard
Easement by Prescription
providing flexibility in the uses permitted in a particular zoning district. The technique has several names, including special permit, special use, and special exception, all of which mean the assignment of conditions to the approval of a use.
Local governments establish —- as a technique in the zoning ordinance for flexibility and because special standards are sometimes required for desirable uses. There are often uses that would be welcome within the zoning district if additional standards could prevent them from undermining the purpose and intent of the district.
EX: private schools in residential areas, car washes in commercial zones, and community institutions needing to operate in a particular location
Conditional Use Permit
Special use, special exception, special permit
one that is incidental to, but associated with, a specific principal use that is located on the same lot. An —- building is a detached subordinate building that is located on the same lot as the principal building, the use of which is incidental to the principal building or use of the lot
- Churches: daycare centers, playgrounds, or activity buildings.
- Educational Organizations: dormitories, athletic facilities, or school bus repair facilities.
- Industrial Zones: commercial sales offices.
- Residential Areas: fences, garages, sheds, or home occupations.
Accessory Use
