AICP Land Use Law and Regulations 2 — Questions and Answers
Question 1: The legal basis for most local land use regulations, including zoning, is the government's:
- Eminent domain power
- Police power to protect public health, safety, and welfare (Correct answer)
- Spending power to condition federal grants
- Commerce Clause authority over interstate land transactions
Correct answer: Police power to protect public health, safety, and welfare
Police power is the inherent authority of state and local governments to regulate private conduct—including land use—to protect public health, safety, morals, and general welfare.
Question 2: Eminent domain differs from a regulatory taking in that eminent domain:
- Applies only to commercial and industrial properties
- Involves physical acquisition of property title with payment of just compensation (Correct answer)
- Never requires compensation if the public benefit is demonstrated
- Can only be exercised by the federal government
Correct answer: Involves physical acquisition of property title with payment of just compensation
Eminent domain is the government's power to compulsorily acquire private property for public use upon payment of just compensation, whereas a regulatory taking restricts use without a physical taking of title.
Question 3: The Supreme Court's Dolan v. City of Tigard (1994) decision requires that conditions placed on development approvals must:
- Be adopted by ordinance rather than imposed administratively
- Have an essential nexus to and be roughly proportional to the development's projected impact (Correct answer)
- Apply uniformly to all properties within the same zoning district
- Be negotiated through a recorded development agreement
Correct answer: Have an essential nexus to and be roughly proportional to the development's projected impact
Dolan established the rough proportionality test, requiring that exactions bear an essential nexus to the development's impact and that the burden imposed be roughly proportional to that impact.
Question 4: Inclusionary zoning ordinances typically require developers to:
- Include publicly accessible open space in all new projects
- Reserve a percentage of new housing units as affordable to lower-income households (Correct answer)
- Provide ground-floor retail uses in all mixed-use buildings
- Submit a fiscal impact analysis before any rezoning is approved
Correct answer: Reserve a percentage of new housing units as affordable to lower-income households
Inclusionary zoning mandates that a specified share of units in new residential developments be made available at below-market prices, often paired with density bonuses as developer incentives.
Question 5: A Transfer of Development Rights (TDR) program functions by:
- Transferring zoning authority from county to city governments
- Allowing unused development potential in a sending area to be sold and applied in a designated receiving area (Correct answer)
- Permitting density to be shifted from one lot to an immediately adjacent lot
- Moving building permit allotments from one fiscal year to the next
Correct answer: Allowing unused development potential in a sending area to be sold and applied in a designated receiving area
TDR programs create a market mechanism where landowners in resource or open-space areas sell their development rights, and buyers can use those rights to develop at higher densities in designated growth areas.
Question 6: The Equal Protection Clause of the Fourteenth Amendment is implicated in land use when:
- A municipality fails to hold a public hearing before adopting a zoning amendment
- A zoning ordinance is applied differently to similarly situated properties without rational basis (Correct answer)
- An environmental review is not conducted before a major rezoning
- A developer refuses to comply with subdivision improvement requirements
Correct answer: A zoning ordinance is applied differently to similarly situated properties without rational basis
The Equal Protection Clause requires that similarly situated landowners be treated alike; arbitrary or discriminatory application of zoning rules can constitute a constitutional violation.
Question 7: Procedural due process in land use decisions principally requires:
- That all zoning appeals be reviewed by a state court
- Adequate notice and a meaningful opportunity to be heard before a governmental action affecting property rights (Correct answer)
- Written findings of fact for every building permit issued
- Environmental review before any discretionary land use approval
Correct answer: Adequate notice and a meaningful opportunity to be heard before a governmental action affecting property rights
Procedural due process protects property owners by ensuring they receive notice and a fair hearing before the government takes action that affects their property rights.
AICP Land Use Law and Regulations 2
The legal basis for most local land use regulations, including zoning, is the government's: