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Stake's Classes > Additional Land Use Cards > Flashcards

Additional Land Use Cards Flashcards

1
Q

Possible Correlates of why subjective wellbeing has gone down in the US

A
  • Trust (has diminished)
  • Inequality (has increased)
  • Healthy life expectancy (has diminished for some groups)
  • Corruption
  • Freedom
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2
Q

Somin and Downs: Do local governments make efficient decisions relating to public goods?

A

No. Voters are rationally ignorant

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3
Q

Tidebout and Fischel: Do local governments make efficient decisions relating to public goods?

A

Yes, Owners will support efficient regulations (including taxing for education) because they will maximize home values

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4
Q

Negligent Nuisance

A

Unreasonable Use; cost outweighs benefit

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5
Q

For Intentional Nuisance, when is D’s behavior intentional?

A

1) D acts for purpose of causing interference, or
D knows that the interference is substantially certain to result
2) D’s behavior is unreasonable under the circumstances

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6
Q

abnormal use

A

perhaps categorical, a different kind of use than the usual neighbor

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7
Q

subnormal use

A

perhaps quantitative, more harm than the usual neighbor, a different degree

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8
Q

What would Pigou say about right to farm statutes?

A

subsidize activities with positive externalities

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9
Q

Why not recognize the utility in schadenfreude?

A

because it is an Inefficient preference and Law might shape preferences by refusing to recognize

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10
Q

is obstruction of view a nuisance?

A

no

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11
Q

Is the fact that a regulation permits a certain use a bar to a nuisance suit?

A

No.

but in some states it can be a factor when considering reasonableness and in whether an injunction is granted

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12
Q

What does Kellogg say?

A

coming to the nuisance is not a bar to suit, but it can be a factor in granting an injunction. it is not a factor for determining damages

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13
Q

Efficiency considerations when coming to the nuisance if D loses

A

D could feel displaced
Future D’s may invest too little
future Ps may fail to avoid creating conflicts

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14
Q

Efficiency considerations when coming to the nuisance if D wins

A

P’s use may be frustrated
Future D’s more likely to create nuisances
People like D invest too soon, hurting more Ps

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15
Q

traditional Nuisance remedies

A

injunction (property rule protection)

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16
Q

remedy for nuisance under Boomer v Atlantic Cement?

A

damages (liability rule protection)

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17
Q

example of state action in a covenant

A

covenant was imposed to get government approval

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18
Q

Housing for Older Persons Act of 1995

A

covenant cannot say “no children” but some restrictions on age are okay

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19
Q

Discussion on Religious restrictions in covenants

A

– How much does it hurt the excluded? How many are excluded?
– Does enforcement communicate and legitimate invidious preferences such
as animus or schadenfreude?
– Is it for a group or against a group?
– Does it advance freedom of exercise and foster religious expression?
– Does it advance freedom of assembly?
– Does it make a difference if it is a small group trying to reach critical mass?

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20
Q

Class vote: Is a law prohibiting restrictions applied retroactively unfair? (pet allowed, no matter what CR promised)

A

class says yes, this is unfair because the party loses the benefit of the bargain

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21
Q

Law prohibiting restriction that applies prospectively only (California statute allows one
pet, no matter what CR promises.)

A
  • less unfair
  • Inefficient. Preventing separation of sticks prevents Pareto superior exchanges of some sticks, but loss is less than loss from
    retroactive change
  • Individual freedom? Freedom to have a cat vs Freedom to be free of cats vs Freedom to
    make an agreement about cats
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22
Q

When should rights be inalienable (no trades will be enforced?)

A

– The right is so important that it is always worth so much to the seller
that the sale shows lack of capacity or awareness, or a high possibility
of fraud or duress.
– Alienability creates a choice, and sometimes we don’t want to put
people to the choice. (Sophie’s Choice)
– Positive externalities (I benefit from your vote, speech, or education, so
I do not want you to sell it.)

23
Q

difference between real covenants and equitable servitudes

A

different methods of enforcement

24
Q

For a real covenant, under the recording acts, is notice required for the burden to run?

A

Yes. under the recording acts, a purchaser is not bound by a prior interest if there is no notice

25
Q

The RS3 compared with traditional T&C

A

» “Public policy” is less predictable than T&C.
» “Public policy” is more restrictive on parties than T&C.
» The public policy limitation can stop enforcement against original promisor rather than just stopping the burden from running.

26
Q

stakes metaphor for equitable servitude

A

Burden Sinks its Tentacles in the Soil; it runs with possession.

27
Q

Challenges asking for procedures that the CRRs deny. Reasons against Judicial Review

A
  • additional review is costly for the parties and public
  • when they bought, owners were behind the rawlsian veil of ignorance, so their choices might be fair
28
Q

challenges asking for procedures that the CRRs deny. Reasons for judicial review

A
  • procedures are non-salient at the time of purchase.
  • buyers are not experts in procedures and do not appreciate their value
  • developers might have some expertise in procedures, but they are selling to an uninformed market so they have little incentive to get it right for the owners
  • courts are experts in procedures
  • courts get to see the problems after they arise rather than having to anticipate them
  • there might be externalities
29
Q

When challenging CIC and HOA procedures, what standard of review should the courts apply?

A

consider whether the challenge is
- asking for procedures denied in the CCR or bylaws

-challenge asking for procedures denied by the HOA but not mentioned in the CCRs or bylaws

30
Q

Why apply a reasonableness standard to challanges to rules adopted by an HOA?

A
  • likelihood that minority interestsare not the same as majority
  • shareholders’ interests vary less than homeowners
  • expertise of CIC managers less than business managers
  • Shareholders can exit easier than homeowners

(essentially want less deference given to HOAs than to managing corporations)

31
Q

Changes to rules in the chain of title (reviewed under a reasonableness standard)

A

Harrison v Air Park Estates Zoning Comittee (change requiring a home to be built before an airplane hanger was reasonable)

Ridge Park Home Owners v Pena (commercial use allowed on some lots is unreasonable without consent of those affected)

32
Q

Under the reasonableness standard, what factors are considered when there is a Changes to rules in the chain of title

A

is there a reduction in value to some properties, but not all properties.

is the change applied to all properties, or only some properties

33
Q

Janet Speyrer found what

A

that compared to unrestricted use, restrictions by covenants and zoning increase value

34
Q

Hayek on Planning

A

complex zoning/planning problems might be better handled by a market than a central planner.. ex. market better determines the need for millions of different consumer goods

35
Q

Stakes argument against Hayeck = Times when the market has not handeled problems well

A
  • hospital bed demand during covid pandemic
  • national defense and other public goods
  • actions that create externalizes
36
Q

what did the judge say about multifamily housing in Euclid?

A

“mullti-family housing is a parasite interfering with circulation of air and monopolizing rays of sun and depriving children of places to play

37
Q

case allowing as applied challenges to zoning

A

Nectow v City of cambridge

38
Q

city of cuyahoga fallsohion v buckeye community hope foundation

A

only the most egregious official conduct can be said to be arbitrary in the constitutional sense

39
Q

State court review of zoning ordinances

A

generally look at health, safety, morals, general welfare, but
-judicial deference depends
- burden of proof depends
- factors in analysis depends

40
Q

are aesthetics a legitimate end

A

yes

41
Q

does morality legislation establish religion?

A

no, not necessarily because there are sources of morality other than religion (humanism, consequential-ism)

BUT allowing morals as a basis creates an opportunity for imposing regulations based only on religion and for the majority to foster religion or impose it upon others

42
Q

Case for “pave paradise and put up a parking lot”

A

Kelo v New London– took a nice house to redevelop a larger distressed area is a public use because of the public benefit

43
Q

case for “if you aint got nothin, you aint got nothin to lose”

A

Muglar v Kansas (no taking when regulation prevented a naxious use)

44
Q

the three readings of Hadacheck v Sebastian (brick making is illegal)

A

1) regulation of land use is not a taking because the owner still has the land
2) regulation of uses for the good of the community or for the health and comfort of the community is not a taking
3) regulation of nuisance use is not a taking

45
Q

Case holding a regulation can be a taking if the regulation goes too far

A

Penn coal v Mahon

46
Q

What did Frankfurter say about Holmes opinion in Penn Coal?

A

Holmes created “heaps of mischief”

47
Q

Why require compensation for takings?

A

fairness
efficiency
government legitimacy
for permanent physical occupations–> protection of privacy

48
Q

Example of when government is acting as an enterprise

A

government takes land for roads

49
Q

example of when government is acting as an arbitrator

A

zoning

50
Q

Examples of per se takings

A
  • permanent physical occupation (Loretto)
  • deprivation of all economically beneficial use (Lucas)
51
Q

If the owner’s property after regulation is still more valuable than owner’s historic investment

A

no taking

52
Q

if owner can still make its historic use of the property after the regulation

A

no taking

53
Q

Was the regulation in Murr v Wisconsin reasonable?

A

YES– applying the 3 factor test, the gov action was a reasonable land-use regulation enacted as part of a coordinated federal, state,and local effort to preserve the river and surrounding land

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