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Flashcards in Zoning & Land Rights Deck (23)
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What are lateral support rights?

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.


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?

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




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)?

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.





What are subjacent support rights?

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.



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

  • 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.


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

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



What is the Riparian Doctrine view of water rights?

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.


What is the Prior Appropriation Doctrine?

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


What are the rights for groundwater?

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


What are surface water rights and the 3 governing approaches?

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



What are air rights?

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



What is zoning and from where is the power derived?

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


What types of zoning regulations are invalid/void?

  • 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



When does a zoning regulation constitute a regulatory taking?

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)




Is the right to housing a fundamental right?



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

Yes (includes extended family members).


What are zoning variances?


Exempts property owner from certain zoning restrictions.


What must the owner prove to receive a zoning variance?


  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


Differentiate between area and use variance

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

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


What is a noncomforming use?

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



Can zoning eliminate nonconforming uses all at once without compensation?

No, because it would constitute an unconstitutional taking.


What is amortization?

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.



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