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Flashcards in Zoning Deck (26)
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o Common Zone classifications include

o Common classifications include: residential, commercial, agricultural, industrial, spatial, and mixed-use.


Zoning regulations
o Regulations in each district may regulate, restrict, permit, prohibit, and/or determine:

 Use of land, buildings, and structures;
 Size, height, area, location, construction, repair, and removal of structures;
 The areas and dimensions of land, water, and air-space to be occupied and open spaces to be left unoccupied; or
 The excavation or mining of soil or other natural resources.
EXAMPLE: A homeowner planned to build a garage that was flush with the edge of his street, for ease of entering the garage. However, he learned, upon applying for a building permit, that a 15-foot set-back from the road was required for any structure.


When a property is found to be out of compliance with the zoning code, the political subdivision will issue to the property owner a _________ of ________ __________.

Notice of Zoning Violation


 Cease and Desist

The notice may contain instructions to cease and desist from a certain use, or instructions on how to modify the property to bring it into compliance, or how to cure the violation.


If the owner doesnt protest the the notice, and does not bring the property into compliance, the political subdivision may:

• Obtain a court-ordered injunction to enforce the notice;
• Apply civil fines until compliance is achieved; or
• Require a zoning violation to be recorded to alert potential buyers (some states).

note:  Challenges: A Notice of Zoning Violation must include information on how to protest the notice by appealing to the local board of zoning appeals. If relief is not granted, an appeal to a court must be provided.


T or F While the property owner is always liable for civil zoning violations, whether committed by the owner or a tenant or other occupier, in most jurisdictions a tenant or other occupier who is committing the violation is also liable.



• An owner, however, cannot be liable for a ________ ___________committed by the tenant or occupier because the element of intent is lacking.

criminal misdemeanor


o When a property owner receives a Notice of Zoning Violation, and appeals it to the local board of zoning appeals or other administrative board, there is a public hearing. If the owner does not receive relief, an appeal to the courts must be provided.
o When a property owner requests a variance from the zoning code, the owner is entitled to a public hearing that has been noticed to all who might take an interest in the request, including nearby property owners. If relief is not granted, an appeal to the courts must be provided.
o Where appeal to the court is taken, the court reviews the administrative decision to see if it was illegal, arbitrary or capricious, or unsupported by a preponderance of the evidence.

This process satisfies what Constitutional Requirement?

Right to Procedural due process= • Requires notice and an opportunity to be heard


• A zoning ordinance violates substantive due process if

if it is arbitrary and capricious, meaning that it is not reasonably related to public health, welfare, or safety.


• A zoning ordinance may give rise to an equal protection challenge if:

if similarly situated people are treated differently. However, where there is no fundamental right impacted, and where there are no suspect classifications, then the rational basis test will be applied.


• A zoning ordinance may also be subject to a First Amendment challenge if it regulates

billboards or aesthetics.


 The Fifth Amendment provides that private property shall not be taken for public use without

just compensation


 To analyze regulations that merely decrease economic value, the court uses a balancing test to determine if there is a taking, which happens rarely, considering the following factors:

• The economic impact of the regulation on the claimant;
• The extent to which the regulation has interfered with distinct investment-backed expectations; and
• The character of the governmental action.


 If rezoning is inconsistent with a comprehensive plan for that area, then it must be based on

a change of conditions in the land, neighborhood, environment, or public opinion


Define and Explain a non-conforming use

 A nonconforming use is a use permitted by zoning statutes or ordinances to continue, notwithstanding the fact that similar uses are not generally permitted in the area.
 A nonconforming use may not be expanded or rebuilt after substantial destruction.
 Local ordinances often prohibit the enlargement, alteration, or extension of a nonconforming use.
 Some local ordinances require certain nonconforming uses to be amortized (reduced) over a specified period, at the end of which they must be terminated.


Define and Explain a Variance

 A variance is the permission by the local zoning authorities to use property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of property.
 If a variance is sought from an area restriction, the petitioner must show that there are practical difficulties in meeting the requirements of the zoning code or that the requirements are unreasonable or create an undue hardship.
EXAMPLE: An accountant buys land in a commercial district to set up a business office, but the zoning code requires 50 square feet of landscaping near the front door. There is no physical space for 50 square feet of landscaping, so the accountant seeks an area variance.
 If the variance is sought from a use restriction, the petitioner must show undue hardship, meaning that, without a use variance, there is no viable use of the property.
EXAMPLE: An heir inherits a sawmill that has not been used in decades, and is in a district that has been rezoned to retail. The sawmill is not viable under the current zoning designation, nor is it appropriate for a retail store. The heir seeks a use variance to allow it to be remodeled into a warehouse.


 A special use permit is required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area.
 An applicant for a special use permit is entitled to a:

Give an example of a scenario where a special permit may be needed

entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners.

EXAMPLE: A hospital is planned to be built in a residential district. A special use permit is needed because a hospital is not a residential use.


 A conditional use permit is required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare, and compatible with the area if certain conditions are met.
 Granted only if the applicant agrees to?
 An applicant for a conditional use permit is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners.

Give an example

meet additional conditions

 An applicant for a conditional use permit is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners.

EXAMPLE: A lawyer wants to run his practice out of his home in a residential area. A conditional use permit is granted on the conditions that he not have more than two clients with cars visiting at the same time, and that he post no signage.


 A parcel, or small area, may be zoned for a use or structure that is inconsistent with the rationale of the overall plan or ordinance. This is called

spot zoning


 Spot zoning is illegal when

 Spot zoning is illegal when the zoning ordinance is designed solely to serve the private interests of one or more landowners.


Define and Explain an Exaction

 An exaction is an approval of use in exchange for money or a dedication of land.
• Permissible only if:
o The local government can demonstrate that the increased public need is causally related (i.e., has an essential nexus) to the owner's use; and
o The amount of the exaction is approximately equal to the additional public cost imposed by the use (i.e., has a rough proportionality to the use).
EXAMPLE: The owner of a plumbing and electrical supply store applied for a permit to expand her store and pave the parking lot. The city was not allowed to insist that the owner also dedicate land to a greenway and develop a pedestrian and bicycle pathway by the store [Dolan v. City of Tigard, 512 U.S. 374 (1994)].


• An easement is an interest in the land of another. Checklist for easements:

o Was an easement ever properly created?
o What is the scope of the easement?
o Has the easement been terminated?


 Easement Implied by Prior Use (four requirements

• Severance of title to land held in common ownership;
• The use giving rise to the easement was in existence at the time of the severance; (right of way existed but forgot to include it)

• The use was apparent and could be discovered upon a reasonable inspection; and

• At the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract.


o Power to Zone by?

o Power to Zone: Granted by statute from a state to a city, county, township, or other appropriate political subdivision. It gives the political subdivision the ability to divide its geographical areas into zones where some uses are permitted and other uses are prohibited.


 Ordinances that do not conform to state enabling acts are unauthorized. why?

because they are not reachable by police power.


What is uniformity in zoning

• Uniformity: Must be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts.