Additional Land Use Cards

Question 1

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

Answer 1

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

Question 2

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

Answer 2

No. Voters are rationally ignorant

Question 3

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

Answer 3

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

Question 4

Negligent Nuisance

Answer 4

Unreasonable Use; cost outweighs benefit

Question 5

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

Answer 5

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

Question 6

abnormal use

Answer 6

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

Question 7

subnormal use

Answer 7

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

Question 8

What would Pigou say about right to farm statutes?

Answer 8

subsidize activities with positive externalities

Question 9

Why not recognize the utility in schadenfreude?

Answer 9

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

Question 10

is obstruction of view a nuisance?

Answer 10

no

Question 11

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

Answer 11

No.

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

Question 12

What does Kellogg say?

Answer 12

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

Question 13

Efficiency considerations when coming to the nuisance if D loses

Answer 13

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

Question 14

Efficiency considerations when coming to the nuisance if D wins

Answer 14

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

Question 15

traditional Nuisance remedies

Answer 15

injunction (property rule protection)

Question 16

remedy for nuisance under Boomer v Atlantic Cement?

Answer 16

damages (liability rule protection)

Question 17

example of state action in a covenant

Answer 17

covenant was imposed to get government approval

Question 18

Housing for Older Persons Act of 1995

Answer 18

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

Question 19

Discussion on Religious restrictions in covenants

Answer 19

– 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?

Question 20

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

Answer 20

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

Question 21

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

Answer 21

• 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

Question 22

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

Answer 22

– 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.)

Question 23

difference between real covenants and equitable servitudes

Answer 23

different methods of enforcement

Question 24

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

Answer 24

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

Question 25

The RS3 compared with traditional T&C

Answer 25

» “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.

Question 26

stakes metaphor for equitable servitude

Answer 26

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

Question 27

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

Answer 27

- 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

Question 28

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

Answer 28

- 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

Question 29

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

Answer 29

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

Question 30

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

Answer 30

- 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)

Question 31

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

Answer 31

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)

Question 32

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

Answer 32

is there a reduction in value to some properties, but not all properties. is the change applied to all properties, or only some properties

Question 33

Janet Speyrer found what

Answer 33

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

Question 34

Hayek on Planning

Answer 34

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

Question 35

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

Answer 35

- hospital bed demand during covid pandemic - national defense and other public goods - actions that create externalizes

Question 36

what did the judge say about multifamily housing in Euclid?

Answer 36

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

Question 37

case allowing as applied challenges to zoning

Answer 37

Nectow v City of cambridge

Question 38

city of cuyahoga fallsohion v buckeye community hope foundation

Answer 38

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

Question 39

State court review of zoning ordinances

Answer 39

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

Question 40

are aesthetics a legitimate end

Answer 40

yes

Question 41

does morality legislation establish religion?

Answer 41

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

Question 42

Case for "pave paradise and put up a parking lot"

Answer 42

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

Question 43

case for "if you aint got nothin, you aint got nothin to lose"

Answer 43

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

Question 44

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

Answer 44

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

Question 45

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

Answer 45

Penn coal v Mahon

Question 46

What did Frankfurter say about Holmes opinion in Penn Coal?

Answer 46

Holmes created "heaps of mischief"

Question 47

Why require compensation for takings?

Answer 47

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

Question 48

Example of when government is acting as an enterprise

Answer 48

government takes land for roads

Question 49

example of when government is acting as an arbitrator

Answer 49

zoning

Question 50

Examples of per se takings

Answer 50

- permanent physical occupation (Loretto) - deprivation of all economically beneficial use (Lucas)

Question 51

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

Answer 51

no taking

Question 52

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

Answer 52

no taking

Question 53

Was the regulation in Murr v Wisconsin reasonable?

Answer 53

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