Final Exam Flashcards
In re Jacobs (1885)
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).
Sic Utere (tuo ut alienum non laedas)
Basis of Nuisance Law
Use of One’s Land Cannot Harm Another (General Welfare Considerations)
Gilbert v. Showerman (1871 Michigan)
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.
Primitive Land Use Planning
Judicial Regulation by Nuisance
5 Cases
- In re Jacobs (Police Power Overreach for Tobacco in Tenements Regulation - Unreasonable, Irrational)
- Gilbert v. Showerman (Retail/Residential, No Nuisance in Changing City of Detroit)
- Hadacheck v. Sebestian (Lawful Brickyard Business = Regulated (as a Nuisance))
- Village of Euclid (Preemptive Nuisance, Pig in the Parlor Problem - Legislative Action of Zoning = Upheld)
- Nectow v. City of Cambridge (Judicial Review for Rezoning, Suspicious of Quasi-Judicial Zoning)
Consistency Doctrine
3 Aspects & 3 Cases
- Udell: (Rezoning of proposed bowling alley = irrational (Inconsistent with Plan). Plan “found” in multiple documents, including the zoning ordinance, zoning map, history, etc.
- Fasano: Zoning Board did not prove Consistency with Plan in Trailer-Park Zone Change (Udell Progression on Locating Plan)
- Snyder: Formal Comp. Plan (Attempts to Build Condo Units) - Mere Consistency with Plan =/= Sufficient. Must NOT Be INCONSISTENT, too. Time Dimension
Modifying Existing Zoning
3 Methods & Type of Action (Quasi-Judicial vs. Legislative)
1 Case as Example
- Variance (Quasi-Judicial)
- Special Use Permit (Quasi-Judicial)
- 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
Consistency Doctrine
4 Aspects
- Zoning Enabling Act’s requirement that zoning be in conformity (CONSISTENT) with a Comprehensive Plan.
- Comprehensive Plan & “Consistency” = Potentially Ambiguous, Amorphous: Udell (Bowling Alley, Informal Plan) to Snyder (Condo, Formal Plan)
- Use Must Not be INCONSISTENT with Plan (& Consistent, too).
- “Spot” Zoning = Inappropriate (Inconsistent with Plan)
Baxendale (New Jersey 1955)
2 Doctrines Implicated
General Facts/Dissent
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).
Manalapan v. Township 4 Points (Facts & Rationale)
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
Goffinet (& NapGas Co.) v. County of Christian (Illinois 1976)
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…
Non-Conforming Uses
Justification, Nature, Expiration
- Premised on Takings Considerations
- NCUs =/= Expandable (but Transferable)
- Upon Abanondment of NCU, NCU = NCU Lost (Non-Renewable)
Golden v. Board of Ramapo
2 Features
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
Zoning Estoppel vs. Vested Rights
Definitional Distinction
Estoppel: Focused on Actions of Zoning Authority
Rights: Focused on Developer, Reliance Based
Limitations on Zoning, Estoppel, and Vested Rights
- No Guarantee to Zoning Classification
- No Protection UNTIL Last Discretionary Act (Building Permit = Sufficient, Not Necessary –> Similar Action = Possible Protection – Avco)
General Overview
Takings Analysis (Lingle)
2 Forms & 3 Subdivisions & Exception
Ouster or Appropriation
- Ouster = Taking
- Total Deprivation = Taking
- Penn Central Balancing
Exception: Exactions (Nollan & Dolan)
Takings: Exactions
2 Prong Test for Exception
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)
- Essential Nexus: Relationship between Legitimate State Interest & Permit Condition (Exaction)
- Rough Proportionality
Takings: Exactions
2 Case Studies
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).
Takings: Regulatory Takings
2 Cases & 3 Part Test & Note
- Pennsylvania Coal Co. v. Mahon (1922): Coal Pillars
- Total Deprivation (Segmentation Problem)
- Taking (Regulation “Went Too Far”) - 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
- Economic Impact of Regulation
- Extent Regulation Interferes with Investment-Backed Expectations (IBE)
- Character of Governmental Action (Government’s Objectives and Methods)
If Reasonable Economic Use Remains –> Regulation (Likely) Upheld
Takings: Landowner’s Two Options (& Cases)
- Compel Taking, Require Just Compensation
- Lucas: Isle of Palms Land
- Palazzo: Wetland Development - Relief from Regulation as Applied
- Penn Central: Historic Train Station
Takings: Irrefutable Takings
2 Categories & 3 Cases
- Ouster: Permanent Physical Invasion
- Loretto (Cable Boxes on Apartments) - 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)
Takings: Issues with Total Deprivation 2 Cases (Contrast)
- Temporary Takings = COMPENSIBLE
- First Evangelical (Religious Summer Camp’s Development Bar after Fire = Taking) - Administrative Delays = Non-Compensible
- Tahoe-Sierra (Multi-Year Development Moratorium for Lake - Prevents Bad Public Policy)
Limitations of Eminent Domains
Principal Prohibition & 3 Exceptions
Excess Condemnation Prohibition
- Must have an IMMEDIATE (near future) plan to use land.
- Cannot purchase land for speculative purposes.
- 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) - Recoupment Theory Exception (Typically Impermissible): Selling Surplus Land to Finance Project
- Protective Theory Exception (Ambiguous Efficacy): Condemnation to Protect Main Focus of Area (e.g., adjacent park area to protect park habitat).
Tri-Force of Governmental Powers
- Police Powers
- Taxing Powers
- Eminent Domain Powers
Kelo v. City of New London
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
Eminent Domain: Hathcock
3 Private Holdings = Public Use
Economic Development (Tax and General Benefit = Insufficient -Reverses Poletown v. Detroit
- Public Necessity of the Extreme Sort Requires Collective Action (Railroads)
- Public Oversight Post-Transfer (Co/Ownership or Heavy Regulation) (Utilities)
- Facts of Independent Significance (Self-Executing Purposes (Bermann, Midkiff, Miller v. Schoene (Cedar Rust))
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
Public Purpose Factors
8 General Characteristics
- Payment to Use
- Titleholder (Private/Public)
- Private Profit, Non-Profit, or Public Purposes
- End Use Provides Needed Public Service
- Control Retained by Condemning Authority
- Most to Gain
- Private Developers = Driving Force in Redevelopment
- True Slum/Blight for Removal
Constitutional Considerations
- Free Speech
- Equal Protection
- Discrimination
First Amendment Cases
2 Cases & Facts
- 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 - 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
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
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
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)
Equal Protection: Historic Districts
- 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
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).
Right to Farm
4 Features
- Provide Standards (GAMPS) to Insulate from Nuisance Suits (Conflict Resolution)
- Encourage Cultivation
- Land Preservation
- Transferability of Rights
GAAMPS
Generally Accepted Agricultural & Management Practices
- Protect from Nuisance Suits by Providing Approved Practices
- Preempts Local Legislation
Community & Economic Development Tools
6 Financing Mechanisms
- Community Development Block Grants (CDBG)
- Section 108 Loans
- Tac Increment Financing (TIF)
- Tax Abatements
- Michigan Incentives: Signature Building Acquisition
- Michigan Incentives: Direct Business Assistance
