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1.10 Land Use Regulation

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California Bar Exam Exam

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1 Exam Format and Core Skills

California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy

2 Civil Procedure

Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion

3 Constitutional Law

Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause

4 Contracts

Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies

5 Criminal Law and Procedure

Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights

6 Evidence

Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)

7 Real Property

1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures

8 Torts

Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities

9 Business Associations

Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))

10 Community Property

General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property

11 Professional Responsibility

Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties

12 Remedies

Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection

13 Trusts

Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)

14 Wills and Succession

Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes

15 Performance Test

The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution

1.10 Land Use Regulation

Key Takeaways Explain This Topic AI

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
  • Last updated: June 2026

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+)