29.4 Support, Water Rights & Zoning

29.4 Support, Water Rights & Zoning

Some rights come with land ownership automatically, such as the rights to support and to use water. Public land-use regulation limits how owners may use their land. This section covers both; constitutional takings doctrine is covered with the Takings Clause in Section 11.1.

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Natural Rights Incident to Land Ownership

                                  RIGHTS INCIDENT TO LAND
                                             │
             ┌───────────────────────────────┼───────────────────────────────┐
             ▼                               ▼                               ▼
      SUPPORT RIGHTS                   WATER RIGHTS                  AIR & SUBSURFACE
  • Lateral Support              • Riparian Doctrine             • Cuius est solum
    (Support from sides)           (Reasonable use; domestic)    • Reasonable airspace use
  • Subjacent Support            • Prior Appropriation             (United States v. Causby)
    (Support from below)           (First in time/beneficial)    • Subsurface rights
                                 • Surface Water Runoff

1. Right to Lateral Support (Support from the Sides)

A landowner has a natural right to have their land physically supported by the adjoining parcels of land.

A. Land in its Natural State (STRICT LIABILITY)

If an excavating neighbor withdraws lateral support and causes adjacent land to subside in its natural, unburdened condition (soil without buildings or structures), the excavating neighbor is STRICTLY LIABLE for the resulting damages, regardless of how much care, skill, or precaution was exercised.

B. Improved Land (Land Burdened by Buildings / Structures)

When an excavation causes adjacent land improved by buildings, parking lots, or other heavy structures to subside, liability is evaluated under a two-pronged framework:

                    EXCAVATION CAUSES IMPROVED LAND TO SUBSIDE
                                        │
                   Would the land have subsided in its NATURAL
                   STATE without the weight of the buildings?
                                        │
                        ┌───────────────┴───────────────┐
                        ▼                               ▼
                       YES                              NO
                        │                               │
                 STRICT LIABILITY               NEGLIGENCE STANDARD
         Excavator strictly liable for           Excavator liable ONLY if
         damages to BOTH the land AND            negligent in conducting the
         the buildings!                          excavation (e.g., no shoring)

1. The Strict Liability Rule: If the plaintiff proves that the land would have subsided in its natural state even if no buildings had been constructed upon it, the excavating defendant is STRICTLY LIABLE for damages to BOTH the land and the buildings.
2. The Negligence Rule: If the land subsided solely because of the additional artificial weight of the plaintiff's buildings, the excavator is NOT strictly liable. The plaintiff can recover damages only by proving that the excavator acted negligently (e.g., failed to provide customary shoring, failed to inspect soil conditions, or excavated without giving reasonable prior notice to adjacent owners to allow them to underpin their foundations).

2. Right to Subjacent Support (Support from Below)

The right to subjacent support arises when the mineral rights (or subterranean subsurface rights) are severed from the surface estate:

• Surface Estate Support: The owner of the mineral estate is strictly liable for any failure to support the surface that causes the surface to subside.
• Scope of Strict Liability: Strict liability extends to all buildings and structures that existed on the surface at the date the mineral estate was severed.
• Subsequent Structures: If structures are erected on the surface after the mineral estate is severed, the mineral owner is liable for damage to those subsequent structures only upon proof of negligence.

3. Water Rights

Property rights in water depend on whether the water is contained in a watercourse, exists underground as percolating water, or flows across the surface as runoff.

┌────────────────────────────────────────────────────────────────────────────┐
│                     WATERCOURSE ALLOCATION DOCTRINES                       │
├─────────────────────────────────────┬──────────────────────────────────────┤
│  RIPARIAN DOCTRINE (Eastern States) │  PRIOR APPROPRIATION (Western States)│
├─────────────────────────────────────┼──────────────────────────────────────┤
│  • Water belongs to owners of land  │  • Water rights acquired by ACTUAL   │
│    bordering the watercourse.       │    BENEFICIAL USE, not land borders. │
│  • Reasonable Use Theory: Riparian  │  • Priority rule: 'First in time,     │
│    may use water reasonably without │    first in right'.                  │
│    unreasonable harm to others.     │  • Can be diverted and sold off-site │
│  • Natural/Domestic uses prevail    │    independently of riparian land.   │
│    over Artificial/Commercial uses. │                                      │
└─────────────────────────────────────┴──────────────────────────────────────┘

A. Watercourses (Rivers, Streams, Lakes)

• The Riparian Doctrine (Majority in Water-Abundant Eastern States):
  • Water rights attach to ownership of land contiguous to a natural watercourse (riparian land).
  • Reasonable Use Theory (Modern Majority): Each riparian owner is entitled to make reasonable use of the water. Courts balance the utility of the user's conduct against the gravity of the harm to other riparian owners.
  • Domestic vs. Commercial Preference: Uses are categorized into Natural (Domestic) Uses (drinking, cooking, household cleaning, personal sustenance gardening) and Artificial (Commercial) Uses (commercial agricultural irrigation, manufacturing, power generation).
  • The Domestic-Use Preference: Natural (domestic) uses are generally preferred over artificial (commercial) uses. Under the traditional view, a riparian owner may take the water needed for household purposes even if little remains for other owners' commercial uses, but the domestic use must itself be reasonable.
• The Prior Appropriation Doctrine (Majority in Arid Western States):
  • Ownership of riparian land is irrelevant. Water rights are acquired purely by actual diversion and application of water to a beneficial use (agriculture, mining, municipal supply).
  • Priority is determined strictly by seniority: "First in time, first in right." Senior appropriators are entitled to satisfy their full allocation before junior appropriators receive any water.

B. Groundwater (Percolating Subsurface Water)

• Reasonable Use Doctrine (Majority): An overlying landowner may extract reasonable amounts of groundwater for beneficial purposes on the overlying tract. Pumping water for transport and sale to off-site locations is actionable if it injures neighboring landowners.
• Prior Appropriation: Some western states allocate groundwater by seniority of beneficial use.
• Other Approaches: Some states follow the absolute ownership rule, which lets an overlying owner pump without liability (as under Texas's rule of capture). Others use correlative rights, sharing a limited supply among overlying owners, or balance the parties' interests under the Restatement (Second) of Torts.

C. Diffused Surface Water (Runoff, Floods & Snowmelt)

Water from rain, melting snow, or springs that has not reached a defined natural channel:

• Common Enemy Rule: Surface water is regarded as a common enemy. Any landowner may take reasonable measures to divert, dike, grade, or expel surface water from their property, provided they do not cause unnecessary or malicious injury to adjacent parcels.
• Civil Law (Natural Flow) Rule: Landowners cannot alter the natural drainage pattern to the detriment of neighboring properties.
• Reasonable Use Doctrine (Modern Trend): Landowners may alter surface drainage provided the alteration is reasonable, balancing the utility of the drainage against the harm inflicted on neighboring parcels.

4. Air and Subsurface Rights

• Airspace Rights: Landowners possess the exclusive right to use the airspace above their property to the extent that it can be reasonably occupied or enjoyed. Under United States v. Causby (1946), aircraft overflights constitute a trespass or taking only if they enter the immediate reaches of the airspace and directly, substantially interfere with surface use and enjoyment.
• Subsurface Rights: Landowners hold possessory rights below the surface (soil, minerals, geothermal), subject to reasonable public regulation and severance of mineral estates.

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Public Land Use Regulation: Comprehensive Zoning

Municipalities possess no inherent power to regulate real estate. Land use zoning authority derives from the state police power, delegated to local governments through state enabling statutes, many of which are modeled on the Standard State Zoning Enabling Act published by the U.S. Department of Commerce in the 1920s. Zoning ordinances must be designed to promote the public health, safety, morals, or general welfare.

                                  ZONING RELIEF & EXCEPTIONS
                                              │
             ┌────────────────────────────────┼────────────────────────────────┐
             ▼                                ▼                                ▼
     NONCONFORMING USE                            VARIANCES                SPECIAL USE PERMIT
  • Existed PRIOR to zoning             • Granted by Board of Adjustment   • Listed in ordinance
  • Generally may continue              • Use Variance: Unnecessary        • Allowed upon proving
    after a rezoning                      hardship + no character change     specified statutory
  • Cannot expand or alter;             • Area Variance: Practical           criteria are met
    reasonable amortization valid         difficulties

1. Nonconforming Uses

A nonconforming use is an existing physical structure or commercial activity that was completely lawful when established, but fails to conform to a newly enacted or amended zoning ordinance.

• Protection: A use that was lawful when it began may generally continue after a zoning change. Courts commonly hold that forcing its immediate end without compensation would be unconstitutional or beyond the zoning power, so ordinances typically allow such uses to continue, subject to limits.
• Restrictions on Nonconforming Uses:
  • No Expansion: The owner cannot substantially enlarge, expand, or structurally alter the nonconforming use (e.g., cannot add a second story to a nonconforming commercial warehouse in a residential zone).
  • No Change of Use: The owner generally cannot convert the property to a different nonconforming use, although some ordinances allow a change to a less intensive one.
  • Casualty Destruction: If the structure is substantially destroyed by fire or natural casualty (typically greater than 50%), the right to the nonconforming use terminates.
  • Abandonment: The right to a nonconforming use is extinguished if the owner abandons it, requiring both an intent to abandon and an overt physical cessation of the nonconforming activity for a substantial period.
• Amortization: Most courts allow municipalities to require the phase-out of nonconforming uses over a reasonable amortization period that lets the owner recover its investment, although a few state courts reject amortization and require compensation.

2. Administrative Relief: Variances

A variance is administrative permission granted by the local Zoning Board of Adjustment (or Appeals) to depart from the literal strictures of a zoning ordinance.

A. Use Variance

Authorizes a landowner to utilize the parcel for a purpose otherwise prohibited in that zoning district (e.g., running a professional dental office in a single-family residential zone).

• Legal Standard: The applicant must prove unnecessary hardship, which many states define as requiring:
  1. The parcel cannot yield a reasonable economic return if used only for permitted purposes;
  2. The plight of the owner is due to unique physical circumstances of the property not shared by neighborhood parcels;
  3. The hardship was NOT self-inflicted (e.g., purchasing land with full knowledge of zoning restrictions);
  4. The variance will not alter the essential character of the locality or substantially impair the municipal master plan.

B. Area Variance

Authorizes a departure from physical, dimensional requirements (setbacks, minimum lot size, maximum height, frontage).

• Legal Standard: Requires a lower showing of practical difficulties or minor undue hardship resulting from unique topography, shape, or dimensions of the lot.

3. Special Use Permits & Spot Zoning

• Special Use Permit (Conditional Use): A use specifically authorized in the zoning ordinance as permissible in that district, but requiring administrative review and approval to ensure that specified statutory criteria (traffic control, landscaping, parking) are satisfied (e.g., churches, private schools, cemeteries, hospitals).
• Spot Zoning: Singling out a small, isolated parcel for a zoning classification or preferential treatment totally inconsistent with the surrounding comprehensive municipal plan. Spot zoning is invalid when it benefits a particular owner rather than the community and is inconsistent with the comprehensive plan; a small-parcel rezoning that carries out the plan and serves the public interest is upheld.

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Zoning in More Detail

Constitutional Framework

• Comprehensive zoning: Zoning that divides a community into use districts is a valid exercise of the police power (Village of Euclid v. Ambler Realty Co., 1926). Ordinances are presumed valid and are upheld if rationally related to public health, safety, morals, or general welfare.
• Household definitions: A limit on the number of unrelated people who may live together is valid (Village of Belle Terre v. Boraas, 1974), but an ordinance that barred a grandmother from living with her two grandsons, who were cousins, violated due process (Moore v. City of East Cleveland, 1977).
• Group homes: Requiring a special permit for a group home for people with intellectual disabilities, based on irrational fears, violated equal protection (City of Cleburne v. Cleburne Living Center, 1985). The Fair Housing Act also requires reasonable accommodations in zoning rules for people with disabilities.
• Aesthetics and historic preservation: Most courts accept aesthetics as a legitimate zoning purpose, especially in historic districts.
• Signs: Sign rules that single out signs by their subject matter are content based and face strict scrutiny (Reed v. Town of Gilbert, 2015), but a distinction between on-premises and off-premises signs is content neutral (City of Austin v. Reagan National Advertising of Austin, LLC, 2022).
• Religious land use: The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars land-use regulations that substantially burden religious exercise unless they are the least restrictive means of furthering a compelling government interest. It also bars treating religious assemblies on less than equal terms with nonreligious assemblies.
• Exclusionary zoning: Some state courts, notably New Jersey in its Mount Laurel decisions (1975 and 1983), require municipalities to provide a realistic opportunity for affordable housing.

Flexible Zoning Tools

Vested Rights

• Majority rule: A zoning change generally applies to projects not yet built. A developer acquires a vested right to finish a project once it has obtained a valid building permit and made substantial expenditures or construction progress in good-faith reliance on that permit.
• Other approaches: Some states vest rights earlier, such as when a complete permit application is filed, and many states authorize development agreements that lock in the rules for a period.
• Invalid permits: A permit issued in violation of the zoning ordinance generally creates no vested rights.

Subdivision Regulation and Procedure

• Subdivision approval: Dividing land for development usually requires approval of a subdivision plat that meets standards for streets, utilities, drainage, and lot size.
• Conditions on approval: Required dedications of land or payments of fees must satisfy the Nollan and Dolan tests, which apply to monetary exactions (Koontz, 2013) and to conditions imposed by legislation (Sheetz v. County of El Dorado, 2024).
• Procedure: Variances and special exceptions are decided by a board of adjustment after notice and a hearing. Rezonings are usually legislative acts reviewed deferentially, although some states treat small, site-specific rezonings as quasi-judicial decisions that require stronger justification (Fasano v. Board of County Commissioners, Or. 1973).

Summary: Support and Water Rights