Constitutional and Statutory Limitations on Property Rights

Question 1

What are the two standards of review for Constitutional issues?

Answer 1

Strict Scrutiny

Rational Review

Question 2

What is Strict Scrutiny?

Answer 2

applies for fundamental rights (suspect class falls under this). Very high standard to prove the discrimination is necessary; government almost always loses. Must prove:

1) Compelling State Interest - general welfare is not a compelling state interest
2) No less drastic alternative

Question 3

What is Rational Review?

Answer 3

must prove there was a rational relationship between the ordnance and the purpose of the ordnance. Much lower standard; great deference to the decision maker. “fairly debatable”

• Exercise of Police power
• General welfare - provide for a better community.

Question 4

Are property rights a fundamental right?

Answer 4

No. they are not named in the Constitution.

Question 5

What are the two steps when analyzing a case?

Answer 5

1. Is there a government/state action? If yes; then

2. Which standard of review (strict scrutiny or rational relationship) should be used?

Question 6

Shelley v. Kramer - racially restrictive covenants

Answer 6

Rule 1: Restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the 14th Amendment.
Individuals or groups can discriminate as long as there is no government/state action involved (at the time of this case).

Rule 2: Judicial enforcement of restrictive covenants are considered state action and thus cannot be discriminatory under the 14th Amendment.

Question 7

What are suspect classes?

Answer 7

race, gender, etc.

Question 8

Village of Belle Terre

Answer 8

Students are not a protected class - rational relationship standard of review.

Question 9

City of Edmonds v. Oxford House

Answer 9

Fair Housing Act made disabled persons a suspect class - strict scrutiny applies.

Remedial statutes are made to fix a problem and given broad interpretation. Exemptions should be interpreted narrowly (specific to the circumstances)

Question 10

Mount Laurel

Answer 10

Court determined low income persons were a projected class (judicial activism) and government had a duty to provide affordable housing.

City’s zoning regulations would have met the rational relationship test for the general welfare.

Question 11

What is the Mount Laurel test for affordable housing requirement?

Answer 11

• Is it a developing community? If yes, bound by Mount Laurel (must provide affordable housing)
• Region - must look outside just that community and at the region overall. Affordable housing must be done on a regional basis (if nearby area is developing lots of industry, then your community may have to provide affordable housing).
• Fair share - each community in the region must provide its fair share of housing.

Question 12

Is Hawaii required to provide affordable housing?

Answer 12

No legal duty for the state to ensure affordable housing.

Question 13

What are the three ways to get rid of a covenant? (West Hills Baptist Church v. Abbate)

Answer 13

• Abandonment - three churches already built on the parcel could show the restrictions have been abandoned (built after the lawsuit initiated).
• Change of Circumstances in the neighborhood.
• Terminated by the parties (agreement of the landowners)

Question 14

What must be shown when strict scrutiny applies?

Answer 14

• If an ordnance, government must show a compelling state interest and no less burdensome alternative. Must also prove a state action (obvious in an ordnance, but must state this for exam).

Covenant - same test.

(Abbate is a minority rule, Restrictions on religious meetings and constructing churches will normally be upheld and enforcement would not be deemed state action.)

Question 15

How can speech and religion be restricted?

Answer 15

Time/Place/Manner

Question 16

Religious Land Use and Institutionalized Persons Act (2000) (RLUIPA)

Answer 16

• Cannot place a substantial burden on the free exercise of religion
• Individual Assessment - e.g., conditional use permit (requires government to individually approve certain permitted uses)
• If there is a substantial burden and an individual assessment of that particular religious exercise, you must use strict scrutiny to review.

Question 17

Guru Nanak v. County of Sutter

Answer 17

• Shik Temple on Agricultural land denied by city, conditional use allowed churches.
• Substantial burden placed on Temple, and individual assessment = strict scrutiny

Question 18

Planned Use Development (PUD)

Answer 18

zoning, also called “common interest community”

Question 19

Constitutional equipoise

Answer 19

balancing two kinds of rights; eg: property and constitutional rights

Question 20

City of Ladue v. Gilleo

Answer 20

Court uses strict scrutiny - Signs are a form of speech and protected by the free speech clause. However, signs can cause issues such as obstructing views and districting drivers.

Rule: City can place reasonable restrictions on time, place and manner for signs.
Restrictions in this case were not reasonable

Question 21

What are the two distinct grounds for challenging the constitutionality of a regulation restricting signs?

Answer 21

1) The measure restricts too little speech because its exemptions discriminate on the basis of the signs’ message
2) They prohibit too much protected speech.

Question 22

Schmid Test to determine the parameters of rights of speech and assembly upon privately owned property

Answer 22

1. The nature, purposes, and primary use of such private property, generally, its “normal” use,
2. The extent and nature of the public’s invitation to use the property, and
3. The purpose of the expressional activity under-taken upon such property in relation to both the private and public use of the property.

Question 23

Committee for a Better Twin Rivers v. Twin Rivers HOA

Answer 23

New Jersey Supreme Court adopted Schmid and Coalition Tests:

Court determines that expressional activities are not unreasonably restricted.
• Contractual relationship between the HOA and owners
• Rules and regulations are essential to the fundamental nature of the communal living arrangement.
• Signs are allowed in certain areas
• Residents can distribute their own newsletter.
• Plaintiffs are members of the association and can seek to make changes to the rules or regulations. Can also run for office

Question 24

Coalition Test - expansion of Schmid

Answer 24

general balancing of expressional rights and private property interests