Additional Land Use Cards Flashcards
Possible Correlates of why subjective wellbeing has gone down in the US
- Trust (has diminished)
- Inequality (has increased)
- Healthy life expectancy (has diminished for some groups)
- Corruption
- Freedom
Somin and Downs: Do local governments make efficient decisions relating to public goods?
No. Voters are rationally ignorant
Tidebout and Fischel: Do local governments make efficient decisions relating to public goods?
Yes, Owners will support efficient regulations (including taxing for education) because they will maximize home values
Negligent Nuisance
Unreasonable Use; cost outweighs benefit
For Intentional Nuisance, when is D’s behavior intentional?
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
abnormal use
perhaps categorical, a different kind of use than the usual neighbor
subnormal use
perhaps quantitative, more harm than the usual neighbor, a different degree
What would Pigou say about right to farm statutes?
subsidize activities with positive externalities
Why not recognize the utility in schadenfreude?
because it is an Inefficient preference and Law might shape preferences by refusing to recognize
is obstruction of view a nuisance?
no
Is the fact that a regulation permits a certain use a bar to a nuisance suit?
No.
but in some states it can be a factor when considering reasonableness and in whether an injunction is granted
What does Kellogg say?
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
Efficiency considerations when coming to the nuisance if D loses
D could feel displaced
Future D’s may invest too little
future Ps may fail to avoid creating conflicts
Efficiency considerations when coming to the nuisance if D wins
P’s use may be frustrated
Future D’s more likely to create nuisances
People like D invest too soon, hurting more Ps
traditional Nuisance remedies
injunction (property rule protection)
remedy for nuisance under Boomer v Atlantic Cement?
damages (liability rule protection)
example of state action in a covenant
covenant was imposed to get government approval
Housing for Older Persons Act of 1995
covenant cannot say “no children” but some restrictions on age are okay
Discussion on Religious restrictions in covenants
– 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?
Class vote: Is a law prohibiting restrictions applied retroactively unfair? (pet allowed, no matter what CR promised)
class says yes, this is unfair because the party loses the benefit of the bargain
Law prohibiting restriction that applies prospectively only (California statute allows one
pet, no matter what CR promises.)
- 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
When should rights be inalienable (no trades will be enforced?)
– 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.)
difference between real covenants and equitable servitudes
different methods of enforcement
For a real covenant, under the recording acts, is notice required for the burden to run?
Yes. under the recording acts, a purchaser is not bound by a prior interest if there is no notice
The RS3 compared with traditional T&C
» “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.
stakes metaphor for equitable servitude
Burden Sinks its Tentacles in the Soil; it runs with possession.
Challenges asking for procedures that the CRRs deny. Reasons against Judicial Review
- 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
challenges asking for procedures that the CRRs deny. Reasons for judicial review
- 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
When challenging CIC and HOA procedures, what standard of review should the courts apply?
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
Why apply a reasonableness standard to challanges to rules adopted by an HOA?
- 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)
Changes to rules in the chain of title (reviewed under a reasonableness standard)
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)
Under the reasonableness standard, what factors are considered when there is a Changes to rules in the chain of title
is there a reduction in value to some properties, but not all properties.
is the change applied to all properties, or only some properties
Janet Speyrer found what
that compared to unrestricted use, restrictions by covenants and zoning increase value
Hayek on Planning
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
Stakes argument against Hayeck = Times when the market has not handeled problems well
- hospital bed demand during covid pandemic
- national defense and other public goods
- actions that create externalizes
what did the judge say about multifamily housing in Euclid?
“mullti-family housing is a parasite interfering with circulation of air and monopolizing rays of sun and depriving children of places to play
case allowing as applied challenges to zoning
Nectow v City of cambridge
city of cuyahoga fallsohion v buckeye community hope foundation
only the most egregious official conduct can be said to be arbitrary in the constitutional sense
State court review of zoning ordinances
generally look at health, safety, morals, general welfare, but
-judicial deference depends
- burden of proof depends
- factors in analysis depends
are aesthetics a legitimate end
yes
does morality legislation establish religion?
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
Case for “pave paradise and put up a parking lot”
Kelo v New London– took a nice house to redevelop a larger distressed area is a public use because of the public benefit
case for “if you aint got nothin, you aint got nothin to lose”
Muglar v Kansas (no taking when regulation prevented a naxious use)
the three readings of Hadacheck v Sebastian (brick making is illegal)
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
Case holding a regulation can be a taking if the regulation goes too far
Penn coal v Mahon
What did Frankfurter say about Holmes opinion in Penn Coal?
Holmes created “heaps of mischief”
Why require compensation for takings?
fairness
efficiency
government legitimacy
for permanent physical occupations–> protection of privacy
Example of when government is acting as an enterprise
government takes land for roads
example of when government is acting as an arbitrator
zoning
Examples of per se takings
- permanent physical occupation (Loretto)
- deprivation of all economically beneficial use (Lucas)
If the owner’s property after regulation is still more valuable than owner’s historic investment
no taking
if owner can still make its historic use of the property after the regulation
no taking
Was the regulation in Murr v Wisconsin reasonable?
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
