Glossary

Legalese

This Glossary lists brief definitions of terms frequently used in land use and eminent domain contexts.  These definitions are provided for clarity and to assist with understanding, and should not be considered as legal authority, or as altering the meaning of terms used in statutes or in appellate cases.

Please refer to the “Legal Topics” section for more information on many of these terms.

Access–The right to come upon or enter property from a public roadway, or from another privately-owned property.

Adverse Possession–A process to obtain title to property through use or possession for a set period of time. Adverse possession is sometimes invoked to resolve competing ownership claims.

Appeal Authority–The person or board that considers appeals from land use decisions. Local governments are required to have appeal authorities, which may be a Board of Adjustment, or an appointed hearing officer. A local government may establish different appeal authorities for different types of land use appeals.

Board of Adjustment–A citizen’s board appointed by a local government to consider zoning appeals, variances, and sometimes other zoning applications. A board may be an appeal authority.

Boundary–The limits of a parcel, indicating where one person’s property ends, and another’s begins. The boundaries of a property are most often defined in the deed to the property, which should be specific enough to reproduce at the actual site of the property.

Boundary by Acquiescence–A legal theory which recognizes long-standing acceptance of an identified boundary line as the actual property line, even if that line does not agree with the parcel’s legal description.

Boundary by Agreement–Recognition and enforcement of a verbal or unrecorded agreement regarding the location of a property boundary.

Boundary by Estoppel–Placement of a property boundary due to reliance on an act or statement concerning the location of the boundary, if enforcing the correct boundary line would result in injustice.

Boundary Marker–An artificial marker, which may be an official monument placed by a government agency or some other permanent structure or marker, that is a reliable starting point to ascertain property boundaries.

Condemnation–The word “condemnation” has traditionally been used as a synonym for acquisition of property using eminent domain. When used this way, condemnation does not mean that the property is not cared for or is blighted, but only that a public agency is using legal action to acquire the property.

Conditional Use–A land use that has been designated as “conditional” by a local government, meaning that evaluation and approval of each specific use is required. Conditions may be imposed to lessen undesirable impacts of the use.

Damaging–The Utah Constitution provides that private property may not be taken or damaged for a public use without compensation. In this context, “damaging” refers to a physical injury to property due to a public improvement, even though the property was not acquired for the purpose.

Development Activity— In the land use context, any new construction or expansion, or a change in land use, that causes additional need for public facilities such as roads, utilities, etc.

Easement–A limited right to use property belonging to another person.

Easement by Implication–An access easement that was established and used before a parcel was divided, if the use continued after the parcel was divided, and if the easement is reasonably necessary. See also Prescriptive Easement

Easement by Necessity–An access easement to property that was divided from a larger parcel, if an easement across the other part of the parcel is the only reasonable access possible. See also Prescriptive Easement

Eminent Domain–The authority to compel the sale of property to a government agency (or other entity authorized to use eminent domain). A court may order that property be transferred, and the owner be paid just compensation.

Estoppel— A legal theory that binds a person, company, or agency to comply with representations that have been made, rather than ignoring those representations. If a person would be economically harmed if the representations are ignored, a court may order the person, company, or agency to comply. See also Zoning Estoppel.

Exaction–A donation of land or money (including construction of public improvements) that is required in order to gain approval of a property development.

Grandfathered Use–A nickname for Nonconforming Uses or Noncomplying Structures.

Impact Fees–One time charges on new development, to help fund public facilities needed because of the development. Impact fees may only be charged to fund expansion of public infrastructure.

Inverse Condemnation–Another term for a regulatory taking. A lawsuit claiming a regulatory taking would be brought by the property owner, and a government agency would be the defendant. In such a lawsuit, the roles of plaintiff and defendant are thus reversed (or “inverse”) from those normally found in an eminent domain action (also known as “condemnation”). See also Eminent Domain

Just Compensation–If property is acquired for a public use through eminent domain, the property owner must be paid just compensation. The amount that is owed is based upon the fair market value of the property. The amount of compensation should be enough to place the property owner in the same financial position that the owner had before the property was acquired.  See also Severance Damages.

Land Use Authority— A person, board,or commission, etc. authorized to act upon a development application. Each local jurisdiction should designate the person or board that makes decisions. A land use authority may be a zoning official, planning commission, board of adjustment, hearing officer, city council, or county commission, as long as they are designated by ordinance.

The Land Use, Development, and Management Act (LUDMA)–State laws, one for Cities (found in the Utah Code at Chapter 9a of Title 10) and one for Counties (found at Chapter 27a of Title 17), which authorize and govern how cities and counties regulate land use and development.

Lot Line Adjustment–A minor change in the boundary between two adjoining lots in a subdivision, done with the owner’s consent.

Moratorium–A prohibition on new development, which may be necessary because of an emergency situation or other compelling interest.  See  “Temporary Zoning Ordinance.”

Noncomplying Structure–A structure that complied with zoning ordinances when built, but which no longer complies due to an ordinance change.

Nonconforming Use–A use of land that was legally established when allowed, and which has been continuously maintained, but which is no longer allowed because of an ordinance change. Nonconforming uses are sometimes nicknamed “Grandfathered Uses.”

Planning Commission–An advisory board appointed by a city or county to assist in review and approvals of land use applications, zoning changes, and land use ordinance changes.

Prescriptive Easement–An easement right established by long-standing use, rather than an agreement between property owners. See also Easement by Implication and Easement by Necessity

Regulatory Taking–A substantial interference with private property stemming from governmental regulation, instead of acquiring ownership of the property for a public use.

Severance Damages— Compensation that is due when a parcel loses value because a portion is taken for a public use. Severance damages may be part of the overall compensation due to a property owner, but are only awarded when a portion of a parcel is taken (or “severed”), and the owner retains the remainder of the parcel.

Special Exception (or Special Exemption)— In general, the  special exception mechanism provides a more careful review of a land use or activity that requires additional attention because of potential impacts. They are similar to conditional uses and variances, although the scrutiny is usually not as detailed. Special exceptions are not found in LUDMA, and not all local governments include them in their ordinances. Those that do often apply the mechanism to such things as home businesses.

Subdivision–Division of land into two or more parcels, or lots. “Subdivision” includes divisions created by plat, deed, “metes and bounds,” wills, and other recorded instruments.

Taking–A substantial interference with the use and enjoyment of private property which destroys or materially lessens its value for a public purpose. Acquiring ownership of property for a public use is a taking. Regulation of property is a taking if the regulation is the equivalent of appropriating the property to accomplish a public use.

Temporary Construction Easement— Short-term use or occupation of property to complete construction on a public facility. The property used for the Temporary Easement is not acquired for the public use, and ownership does not change. The property owner is compensated for a temporary easement.

Temporary Zoning Ordinance–A zoning ordinance enacted for no more than six months, justified by a compelling public interest. A temporary ordinance may be enacted without the normal public hearings required for a zoning ordinance. A “moratorium,” preventing any new development, may be enacted as a temporary zoning ordinance.

Transferable Development Rights–A statutory scheme where certain rights to develop may be sold or transferred between properties.

Variance–A modification or adjustment of a zoning regulation, which an appeal authority finds necessary so that a property owner may fully enjoy a substantial property right.

Vested Rights–Entitlement to pursue a particular land use or development, established by operation of law. If a person has a vested right in a land use, that right cannot be taken away by an ordinance change, except under limited circumstances.

Vested Rights Rule–In Utah, a property owner or developer may claim a vested right to develop according to the  land use ordinances in place, when the owner submits a development application that complies with the ordinances.

Voter Initiative— An initiative creates a new law or ordinance through a vote, rather than by a legislative body. If enough voters sign a petition, an initiative is placed on a ballot to be voted upon. Since zoning changes are legislative acts, they may also be enacted through an initiative.

Voter Referendum— A referendum is a means for voters to overturn a legislative act. A recently-enacted statute or ordinance may be placed on a ballot for a vote if enough voters sign a petition. Since zoning changes are legislative acts, they may also be voted upon through a referendum.

Zoning— Regulation of land use and development is generally referred to as “zoning,” because most regulation is done by dividing an area into “zones” with specific regulations. Local governments may adopt zoning regulations to promote the health, safety, and welfare of the public.

Zoning Estoppel— A legal theory that binds a local government to comply with representations made concerning land use or development, even if those representations are inconsistent with the government’s zoning regulations or general plan. The local government may be forced to comply with the representations made if a property owner would be harmed because of reasonable reliance on the representations made by the government entity.