Key Takeaways
- Zoning is the government's power to regulate land use for health, safety, and welfare
- Variances allow departures from zoning when strict compliance causes undue hardship
- Nonconforming uses that predate zoning may continue but typically cannot be expanded
- Regulatory takings occur when regulation goes 'too far' in diminishing property value
- Per se takings require compensation for physical occupation or total economic loss
Land Use Regulation
Government regulates land use through its police power to protect public health, safety, morals, and general welfare. The Fifth Amendment limits this power by requiring compensation when government "takes" private property.
Zoning
Authority
States delegate zoning power to local governments through enabling legislation. Zoning ordinances must:
- Be authorized by state enabling act
- Promote legitimate public purpose
- Be reasonable and not arbitrary
Common Zone Classifications
- Residential (single-family, multi-family)
- Commercial
- Industrial
- Agricultural
- Mixed-use
- Special purpose (historic, overlay districts)
Cumulative vs. Non-Cumulative Zoning
| Type | Description |
|---|---|
| Cumulative | "Higher" uses permitted in "lower" zones (residential allowed in commercial) |
| Non-Cumulative | Each zone limited to specified uses only |
Zoning Modifications
1. Variance
Allows deviation from zoning requirements for a specific property.
Area/Dimensional Variance: Setbacks, height, lot coverage Use Variance: Different use than permitted (harder to obtain)
Requirements (generally):
- Undue hardship from strict compliance
- Hardship not self-created
- Unique to this property
- Grant won't harm public interest
- Grant consistent with zoning plan
2. Special Exception/Conditional Use Permit
For uses specifically contemplated by zoning code but requiring approval:
- Churches in residential zones
- Schools
- Hospitals
Already anticipated—just needs conditions met.
3. Rezoning (Amendment)
Legislative change to zoning map or text.
Spot Zoning: Singling out small parcel for treatment different from surrounding area. May be valid if serves public purpose; invalid if solely benefits owner.
Nonconforming Uses
When zoning changes, lawfully existing uses that no longer conform become nonconforming uses.
Rules:
- May continue (grandfathered)
- Generally cannot be expanded
- If abandoned or destroyed, cannot rebuild
- May be subject to amortization (required phase-out over time)
Constitutional Limits: Amortization period must be reasonable; immediate termination may be a taking.
Eminent Domain
The Fifth Amendment permits government to take private property for public use with just compensation.
Public Use
Traditionally: Actual public ownership or use Modern (Kelo): Benefit to public, including economic development
Just Compensation
Fair market value: Price willing buyer would pay willing seller
- Includes value of taken property
- Generally excludes consequential damages to remaining property
- Business losses typically not compensable
Process
- Government identifies property
- Attempts negotiation
- Files condemnation action if no agreement
- Court determines fair compensation
Regulatory Takings
Even without physical appropriation, regulation may constitute a taking if it goes "too far" (Pennsylvania Coal v. Mahon).
Per Se Takings (Always Require Compensation):
| Type | Rule |
|---|---|
| Physical occupation | Any permanent physical occupation by government |
| Total economic loss | Regulation denies ALL economically beneficial use |
Balancing Test (Penn Central Factors):
When not a per se taking, courts balance:
- Economic impact on owner
- Interference with reasonable investment-backed expectations
- Character of government action (physical invasion vs. regulation)
Exactions
Conditions on development approval (impact fees, dedication of land):
- Must have nexus to project impacts
- Must be roughly proportional to those impacts
Lateral and Subjacent Support (CRITICAL TOPIC)
Lateral Support
Landowner's right to have land supported in its natural state by adjacent land.
| Situation | Standard |
|---|---|
| Unimproved land | Strict liability for excavation causing subsidence |
| Improved land | Strict liability only if land would have collapsed in natural state |
| Land wouldn't collapse naturally | Liability only for negligence |
Recovery for Improvements: Courts split on whether damages to buildings can be recovered under strict liability.
Subjacent Support
Right to support from underground estates (mining rights, mineral rights).
| Situation | Standard |
|---|---|
| Surface and buildings existing at severance | Strict liability for damage |
| Subsequently erected buildings | Negligence standard |
| Springs/wells | Underground occupant liable for negligence |
Water Rights (CRITICAL TOPIC)
Surface Water - Riparian Rights
| Doctrine | Rule |
|---|---|
| Natural Flow (traditional) | No interference with natural flow; unlimited domestic use; artificial use cannot substantially diminish flow |
| Reasonable Use (majority) | Reasonable use that doesn't unreasonably interfere with other riparian owners; restricted to riparian land within watershed |
Prior Appropriation (Western States)
"First in time, first in right"
- Right to use water for beneficial purposes
- Set by state statute
- Not tied to riparian land ownership
Diffuse Surface Water (Rainwater/Runoff)
| Rule | Application |
|---|---|
| Common Enemy Rule | Owner may use any method to repel surface water |
| Civil Law Rule | Cannot interfere with natural drainage |
| Reasonable Use Rule | May reasonably alter flow even if neighbors harmed |
Underground/Percolating Water
| Doctrine | Rule |
|---|---|
| English Absolute Ownership (Rule of Capture) | Take as much as desired |
| Reasonable Use Test | Some states limit to reasonable use |
| Correlative Rights | Equal rights among overlying owners |
| Prior Appropriation | Applied in some states |
Nuisance (CRITICAL TOPIC)
Private Nuisance
Substantial and unreasonable interference with another's use and enjoyment of land.
Requirements:
- Defendant's conduct is intentional, negligent, or abnormally dangerous
- Interference is substantial (more than trivial)
- Interference is unreasonable (gravity of harm outweighs utility)
Public Nuisance
Unreasonable interference with right common to general public.
Private party standing: Must show special damage different in kind from general public.
Coming to the Nuisance
NOT an absolute defense - plaintiff who moves near existing nuisance may still prevail.
May be considered in balancing utility vs. harm.
Spur Industries Doctrine: Developer who comes to nuisance may be required to pay for nuisance to relocate.
Nuisance Remedies
| Remedy | When Available |
|---|---|
| Damages | Compensate for past harm |
| Injunction | Court balances hardships; may deny if defendant's utility outweighs harm |
| Both | Available in appropriate cases |
Inverse Condemnation
When government takes property without formal condemnation proceeding.
Property owner must initiate suit to recover compensation.
Arises from:
- Physical invasion by government
- Regulatory actions that go "too far"
- Damage from government activities (flooding, etc.)
Compensation: Same as direct condemnation (fair market value).
Additional Takings Case Law
Loretto v. Teleprompter (Physical Occupation)
Any permanent physical occupation = per se taking, regardless of size.
Example: Cable box on apartment building = taking requiring compensation.
Lucas Exception - Background Principles
Regulation is NOT a taking if restricted use would have been prohibited under background principles of state nuisance and property law.
First English Evangelical Lutheran Church (Temporary Takings)
Even temporary deprivation of all use may require compensation.
Landowner entitled to compensation for period regulation was in effect, even if later invalidated.
Palazzolo v. Rhode Island (Pre-Acquisition Notice)
Notice of regulation when acquiring property does NOT bar takings claim.
Purchaser who knew of restriction may still challenge as taking.
Fair Housing Act
Federal law prohibiting discrimination in housing based on:
- Race
- Color
- Religion
- Sex
- National origin
- Familial status
- Handicap/Disability
Applies to:
- Sale and rental
- Financing
- Advertising
Exemptions (limited):
- Owner-occupied buildings with ≤4 units ("Mrs. Murphy")
- Single-family homes sold by owner (no broker, no discriminatory advertising)
- Religious organizations (for members)
- Senior housing (55+ or 62+)
A city rezones Owner's property from commercial to residential. Owner operated a restaurant on the property for 10 years before the rezoning. What is the status of the restaurant?
City requires Developer to dedicate land for a public park as a condition of approving a subdivision. There is no connection between the subdivision and park needs. Is this valid?
Environmental regulation prohibits all development on Owner's coastal property to protect wetlands. The land has no other economically viable use. What type of taking claim does Owner have?
A homeowner owned a house on a lot adjacent to a vacant lot owned by a developer. The developer began excavating on the vacant lot to construct the foundation for a new commercial building. The excavation was performed with reasonable care, but no shoring or other protective measures were installed along the boundary with the homeowner's property. As a result, the homeowner's land subsided, causing significant cracks in the foundation of the house. Expert testimony established that the homeowner's land would not have subsided if the house had never been built on it. In a suit by the homeowner against the developer, what is the likely result?
A farmer owned and operated a hog farm on a 50-acre rural parcel for 25 years. The farm produced substantial odors that traveled beyond the property boundaries. Five years ago, a real estate developer purchased adjacent land and built a residential subdivision. Homeowners in the subdivision sued the farmer, seeking an injunction against the hog farm operation, claiming it constituted a private nuisance. The farmer asserted the defense of "coming to the nuisance." How should the court rule?
A state enacted a statute requiring all landlords of residential rental properties to allow cable television companies to install small junction boxes on the exterior of their buildings to provide service to tenants. The junction boxes measured approximately 4 inches by 6 inches and were attached with minimal damage to the buildings. A landlord challenged the statute as an unconstitutional taking of property without just compensation. Which of the following best describes the constitutional analysis a court should apply?
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