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Final Exam Flashcards

1
Q

In re Jacobs (1885)

A

Nuisance & Rationality of Laws

Facts: Tobacco production in tenements outlawed (racial bias undertones).

Rationale: Invalidate Law. Overreach of Police Power (Broad, but LIMITED).
-Court investigates the underlying public purpose (no aimed at health, unreasonable, and no per-se nuisance).

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2
Q

Sic Utere (tuo ut alienum non laedas)

A

Basis of Nuisance Law

Use of One’s Land Cannot Harm Another (General Welfare Considerations)

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3
Q

Gilbert v. Showerman (1871 Michigan)

A

Facts: Mixed-Use residential neighborhood becomes increasingly industrialized. Retail/Residence shop is bothered by local mill. No complaint until later.

Rationale: No Infringement or Injunction - Area must be free to develop/grow (not ossify uses).

  • Annoyance was clear, but insufficient.
  • Early judicial LUP device.
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4
Q

Primitive Land Use Planning
Judicial Regulation by Nuisance
5 Cases

A
  1. In re Jacobs (Police Power Overreach for Tobacco in Tenements Regulation - Unreasonable, Irrational)
  2. Gilbert v. Showerman (Retail/Residential, No Nuisance in Changing City of Detroit)
  3. Hadacheck v. Sebestian (Lawful Brickyard Business = Regulated (as a Nuisance))
  4. Village of Euclid (Preemptive Nuisance, Pig in the Parlor Problem - Legislative Action of Zoning = Upheld)
  5. Nectow v. City of Cambridge (Judicial Review for Rezoning, Suspicious of Quasi-Judicial Zoning)
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5
Q

Consistency Doctrine

3 Aspects & 3 Cases

A
  1. Udell: (Rezoning of proposed bowling alley = irrational (Inconsistent with Plan). Plan “found” in multiple documents, including the zoning ordinance, zoning map, history, etc.
  2. Fasano: Zoning Board did not prove Consistency with Plan in Trailer-Park Zone Change (Udell Progression on Locating Plan)
  3. Snyder: Formal Comp. Plan (Attempts to Build Condo Units) - Mere Consistency with Plan =/= Sufficient. Must NOT Be INCONSISTENT, too. Time Dimension
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6
Q

Modifying Existing Zoning
3 Methods & Type of Action (Quasi-Judicial vs. Legislative)
1 Case as Example

A
  1. Variance (Quasi-Judicial)
  2. Special Use Permit (Quasi-Judicial)
  3. Amendment to Zoning Ordinance (Presumptively Legislative, Potentially Quasi-Judicial)

Fasano: Quasi-Judicial, NOT Legislative (Despite Ordinance Change) - SFR to Planned Residential for Trailor Park - Judicial Act, Specific Property

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7
Q

Consistency Doctrine

4 Aspects

A
  1. Zoning Enabling Act’s requirement that zoning be in conformity (CONSISTENT) with a Comprehensive Plan.
  2. Comprehensive Plan & “Consistency” = Potentially Ambiguous, Amorphous: Udell (Bowling Alley, Informal Plan) to Snyder (Condo, Formal Plan)
  3. Use Must Not be INCONSISTENT with Plan (& Consistent, too).
  4. “Spot” Zoning = Inappropriate (Inconsistent with Plan)
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8
Q

Baxendale (New Jersey 1955)
2 Doctrines Implicated
General Facts/Dissent

A

Motel Prohibition Upheld (Consistency Doctrine & Deference/Fairly Debatable Standard)

  • Ordinance does not need to foresee every conceivable use.
  • Reasonable Basis to Exclude (Fairly Debatable) based on certain differences (e.g., traffic, noise, etc.)

Dissent rejects motel discrimination (lawful business).

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9
Q 
Manalapan v. Township
4 Points (Facts & Rationale)
A

Home Depot/Big Box Stores Regulation

  • Master Plan in Development, followed by Big Box Ban
  • City can respond to public concerns; fluid/flexible process.
  • No Vested Rights
  • Ultimate Ordinance = SUBSTANTIALLY Consistent
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10
Q

Goffinet (& NapGas Co.) v. County of Christian (Illinois 1976)

A

Agricultural Area Rezoned to Industrial =/= Conditional OR Spot Zoning
QUINTESSENTIAL SPECIAL USE CASE (Rezoning Used Here)
-Relies on Plan to show need for manufacturing jobs (future).
-No adverse effects on surrounding lands.
-No Spot Zoning (Consistent with Plan).
-Judicial Process Requirements…

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11
Q

Non-Conforming Uses

Justification, Nature, Expiration

A
  1. Premised on Takings Considerations
  2. NCUs =/= Expandable (but Transferable)
  3. Upon Abanondment of NCU, NCU = NCU Lost (Non-Renewable)
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12
Q

Golden v. Board of Ramapo

2 Features

A

Phased/Controlled Growth Case Upheld

  • Developer could pay for connections in advance or wait until town expanded to region.
  • No Denial of Right to Develop, but Controls/Conditions Development
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13
Q

Zoning Estoppel vs. Vested Rights

Definitional Distinction

A

Estoppel: Focused on Actions of Zoning Authority

Rights: Focused on Developer, Reliance Based

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14
Q

Limitations on Zoning, Estoppel, and Vested Rights

A
  1. No Guarantee to Zoning Classification
  2. No Protection UNTIL Last Discretionary Act (Building Permit = Sufficient, Not Necessary –> Similar Action = Possible Protection – Avco)
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15
Q

General Overview
Takings Analysis (Lingle)
2 Forms & 3 Subdivisions & Exception

A

Ouster or Appropriation

  1. Ouster = Taking
  2. Total Deprivation = Taking
  3. Penn Central Balancing

Exception: Exactions (Nollan & Dolan)

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16
Q

Takings: Exactions

2 Prong Test for Exception

A

PERMISSIBLE Permanent Physical Invasions IF (Focus on LAND-OWNER, Not Public Benefits)

Relationship between Discretionary Benefit Requested Measured Against Private Interest Lost (No Public Benefit Calculus)

  1. Essential Nexus: Relationship between Legitimate State Interest & Permit Condition (Exaction)
  2. Rough Proportionality
17
Q

Takings: Exactions

2 Case Studies

A

A. Nollan: Visual Access vs. Physical Access (Coastal Walk Path, Connect Beaches). No Nexus.

B. Dolan: Parking Lot for Bike Path (in Flood Plains Area). Presumed Nexus, but Not Roughly Proportional (Required 10% of Land Dedicated).

18
Q

Takings: Regulatory Takings

2 Cases & 3 Part Test & Note

A
  1. Pennsylvania Coal Co. v. Mahon (1922): Coal Pillars
    - Total Deprivation (Segmentation Problem)
    - Taking (Regulation “Went Too Far”)
  2. Penn Central (1978): Historic Train Station Preservation - Focus on Remaining Land (Single Proposal, No Negotiations)
    - No Taking
    - Transferable Development Rights (Economic Impact)
    - Inadequate Alternatives (IBE)
    - Legislative (No Singling Out, No Absolute Prohibition, No Invasion), Honorable Objective (Preservation)

Penn Central Balancing for Regulatory Takings

  1. Economic Impact of Regulation
  2. Extent Regulation Interferes with Investment-Backed Expectations (IBE)
  3. Character of Governmental Action (Government’s Objectives and Methods)

If Reasonable Economic Use Remains –> Regulation (Likely) Upheld

19
Q

Takings: Landowner’s Two Options (& Cases)

A
  1. Compel Taking, Require Just Compensation
    - Lucas: Isle of Palms Land
    - Palazzo: Wetland Development
  2. Relief from Regulation as Applied
    - Penn Central: Historic Train Station
20
Q

Takings: Irrefutable Takings

2 Categories & 3 Cases

A
  1. Ouster: Permanent Physical Invasion
    - Loretto (Cable Boxes on Apartments)
  2. Total Deprivation of Economically Beneficial Use
    - Lucas (Isle of Palms RESIDENCE Prohibited): Signaled POSSIBLE Recovery for LESS THAN 100% Deprivation
    - Palazzo (Beach Club on Wetlands): 97.5% Loss (92% Loss in Hatacheck (Bricks)) Not a Total Deprivation (Residential Use Remains)
21
Q 
Takings: Issues with Total Deprivation
2 Cases (Contrast)
A
  1. Temporary Takings = COMPENSIBLE
    - First Evangelical (Religious Summer Camp’s Development Bar after Fire = Taking)
  2. Administrative Delays = Non-Compensible
    - Tahoe-Sierra (Multi-Year Development Moratorium for Lake - Prevents Bad Public Policy)
22
Q

Limitations of Eminent Domains

Principal Prohibition & 3 Exceptions

A

Excess Condemnation Prohibition

  • Must have an IMMEDIATE (near future) plan to use land.
  • Cannot purchase land for speculative purposes.
  1. Remnant Theory Exception (Acceptable Where Applicable) More effective to take remaining sliver of land (even if unused in project).
    - First Fidelity Bank (Disproportionate Value Case)
  2. Recoupment Theory Exception (Typically Impermissible): Selling Surplus Land to Finance Project
  3. Protective Theory Exception (Ambiguous Efficacy): Condemnation to Protect Main Focus of Area (e.g., adjacent park area to protect park habitat).
23
Q

Tri-Force of Governmental Powers

A
  1. Police Powers
  2. Taxing Powers
  3. Eminent Domain Powers
24
Q

Kelo v. City of New London

A

Eminent Domain: Berman (Blighted Department Store) & Midkiff (Hawaii Oligopoly) Support Kelo’s New Public Use/Purpose: Economic Development

  • 5th Amendment Floor (States May Expand Protection)
  • Purportedly NOT to Elicit a Developer (Pfizer - however, White Knight necessary for project to get off ground…).
  • Non-Blighted Homes
25
Eminent Domain: Hathcock | 3 Private Holdings = Public Use
``` Economic Development (Tax and General Benefit = Insufficient -Reverses Poletown v. Detroit ``` 1. Public Necessity of the Extreme Sort Requires Collective Action (Railroads) 2. Public Oversight Post-Transfer (Co/Ownership or Heavy Regulation) (Utilities) 3. Facts of Independent Significance (Self-Executing Purposes (Bermann, Midkiff, Miller v. Schoene (Cedar Rust))
26
SWIDA v. National City Environmental
Prior Use of ED Power for Gateway Speedway. - Gateway seeks to expand and calls upon SWIDA to use ED Power to acquire neighboring land (hardly any negotiations, no private deal) - Gateway paid its fee for use of ED Power to condemn neighbor's land. Court sees primary benefit falling on Gateway, rather than the public. Rejects safety argument. Not a Public Use. Gas Station & Car Wash Analogy
27
Public Purpose Factors | 8 General Characteristics
1. Payment to Use 2. Titleholder (Private/Public) 3. Private Profit, Non-Profit, or Public Purposes 4. End Use Provides Needed Public Service 5. Control Retained by Condemning Authority 6. Most to Gain 7. Private Developers = Driving Force in Redevelopment 8. True Slum/Blight for Removal
28
Constitutional Considerations
1. Free Speech 2. Equal Protection 3. Discrimination
29
First Amendment Cases | 2 Cases & Facts
1. Marks (Palmistry): First Amendment Issues & Inadequate Due Process Considerations -Limited/Inadequate Record Suggested Improper RELIGIOUS Motivation -City Council succumbs to public pressure. =Inappropriate Regulation/Zoning 2. City of Renton v. Playtime Theatres (Adult Theaters): First Amendment -Regulation Focused on Secondary Effects (NOT Content of Speech) -Regulation limited, but did not prohibit (only 5% Available and was already occupied). -Reliance on other cities' data = appropriate (Moratorium & Administrative Delay = Alternative Option) -Need only provide OPPORTUNITY =Appropriate Regulation
30
Equal Protection: | Class of One
Olech (33ft vs. 18ft Easements): Equal Protection, Class of One - Traditional Equal Protection Clause (33 ft vs. 18 ft) would be sufficient to raise claim. Majority doesn't resort to Illegitimate Animus (arising out of prior law`suit against City). - Concurring Opinion: Vindictive Action or Illegitimate Animus = Inappropriate, Arbitrary, Capricious
31
Belle Terre v. Boraas
College Rentals & Defining Family - Upheld as Rationally Related (Traffic, Quiet, Character of Neighborhood) - Rejected Association Argument (Entertainment = Possible) Dissent: Not Narrowly Tailored, Unconstitutional Intrusions
32
Equal Protection: Class of People
Cleburne Living Center: (Mental Handicap Home) - Denied SUP in area where similar uses were permitted. - City argued flood plains, children teasing, and negative opinions... - NOT RATIONALLY RELATED - Court finds SUP required BECAUSE of retardation - no evidence that they different (Lack of Equal Protection)
33
Equal Protection: Historic Districts
3. ASP Associates v. Raleigh: (Historical District) - Aesthetic Zoning = Permissible (Cultural, Economic, Etc. Values) - Exclusion for a modern medical building, but denial for exemption for ASP. - Similar Location =/= Similar SITUATION - Historic Overlay = Acceptable
34
Equal Protection: Aesthetics
Court upholds a denial of building permit for a modern house in a traditional neighborhood - No Economic Decline Detectable - Seems to be Pure Aesthetics (Court cites to inadequate height of house, though) - Court relies on separation of uses (house good elsewhere).
35
Right to Farm | 4 Features
1. Provide Standards (GAMPS) to Insulate from Nuisance Suits (Conflict Resolution) 2. Encourage Cultivation 3. Land Preservation 4. Transferability of Rights
36
GAAMPS
Generally Accepted Agricultural & Management Practices - Protect from Nuisance Suits by Providing Approved Practices - Preempts Local Legislation
37
Community & Economic Development Tools | 6 Financing Mechanisms
1. Community Development Block Grants (CDBG) 2. Section 108 Loans 3. Tac Increment Financing (TIF) 4. Tax Abatements 5. Michigan Incentives: Signature Building Acquisition 6. Michigan Incentives: Direct Business Assistance

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