Black-letter propositions
- 01
Zoning ordinarily needs a rational relation to public welfare unless it burdens a protected right or takes property.
- 02
A variance usually requires unique, non-self-created hardship, with stricter treatment for use than area variances.
- 03
A lawful preexisting nonconforming use can continue subject to abandonment, destruction, amortization, and expansion rules.
- 04
Eminent domain requires public use and just compensation measured by fair market value.
- 05
Regulatory takings include permanent physical occupation, total use elimination, ad hoc economic-impact analysis, and permit exactions requiring nexus and rough proportionality.
Use this attack sequence under time
Frame the issue
Identify regulation, parcel, and relief.
Resolve the next checkpoint
Apply zoning authority and variance or nonconforming-use rule.
Resolve the next checkpoint
Choose precise takings category.
Resolve the next checkpoint
Determine public use and compensation.
Finish the conclusion
Separate due process and equal protection.
Common wrong turns
- A large value decline is not automatically a taking.
- Self-created hardship often defeats a variance.
- An unrelated permit demand can be an exaction even if government could deny the permit.
Worked example
A city conditions a modest home permit on dedication of an unrelated public beach easement.
The condition likely lacks essential nexus to project impacts and is an unconstitutional exaction absent a demonstrated proportional connection.
Practice this topic
Zoning tools
Cornell describes zoning as a legislative act dividing a jurisdiction's land into sections and regulating different land uses in each section under a zoning ordinance. Zoning schemes are generally cumulative, and residential zones are rated from R1 onward. A variance is an officially granted exception to a zoning ordinance, granted case by case for a persuasive reason shown.
A nonconforming use arises when local governments change zoning laws and allow existing property some form of exemption from the new regulations, so that a business is not forced to close simply because an area is rezoned.
Takings limits
The Fifth Amendment requires just compensation when private property is taken. Cornell describes a regulatory taking as government restrictions that limit property use so severely that it becomes the equivalent of a physical seizure. It lists Lucas, where a regulation eliminating all economically beneficial use is a taking unless justified by background principles of property or nuisance law.
Zoning that restricts use is ordinarily analyzed as regulation, and a taking claim asks whether the restriction goes so far as to take the property.
Cornell says zoning was originally conceived to protect industrial use but today controls land use more broadly to protect land value. It also notes that new zoning would devastate particular owners if applied to pre-existing property, which is the reason for nonconforming use clauses. Keep the three tools distinct: the ordinance, the exception by variance and the grandfathering of existing uses.
Frequently asked questions
How should I analyze zoning, variances, nonconforming uses, and takings on the bar exam?+
Identify regulation, parcel, and relief. Choose precise takings category. Determine public use and compensation. Separate due process and equal protection.
What is zoning on the bar exam?+
A legislative act dividing a jurisdiction's land into sections and regulating land uses in each section under a zoning ordinance.
What is a variance?+
An officially granted exception to a zoning ordinance, granted case by case for some persuasive reason shown.
What is a nonconforming use?+
An exemption that lets existing property continue its use after local governments change zoning laws, so a business need not be leveled because an area is rezoned.
What is a regulatory taking?+
Government restrictions limiting property use so severely that they become the equivalent of a physical seizure, per Cornell.
What does Lucas hold?+
A regulation that eliminates all economically beneficial use of land is a taking unless justified by background principles of property or nuisance law.