Individual Rights

Question 1

48 - What is the purpose of the privileges AND immunities clause of Article IV?

Answer 1

prohibits states from discriminating against out-of-state residents regarding any essential activities or basic rights (e.g., pursuing a job). Tip: the clause pertains to an OUT-OF-STATE RESIDENT’S RELATIONSHIP TO A STATE, as opposed to the pORi clause of the 14th am, which pertains to a person’s rights of national citizenship.

Question 2

49 - What is the purpose of the privileges OR immunities clause of the 14th am?

Answer 2

probities states from passing laws that intentionally interefere with a person’s fundamental rights stemming from their national citizenship (e.g., the right to interstate travel). Tip: pertains to a person’s NATIONAL CITIZENSHIP RIGHTS, as opposed to the pANDi clause of article IV which pertains to states rights of non-residents.

Question 3

63 - What is the purpose of the Bill of Rights?

Answer 3

The Bill of Rights is comprised of the first TEN amendments to the US Constitution, which limit the powers of the federal government over individual rights. Tip: Some Amendments in the bill of Rights have been incorporated to the states, while others have not.

Question 4

64 - purpose of the 13th Am?

Answer 4

… prohibits anyone, including private and govt actors, from subjecting any person to slavery or involuntary servitude, and grants Congress the authority to enact legislation for enforcement. Tip: The is the only amendment that applies to private action.

Question 5

65 - DPC of the 14th Am

Answer 5

The DPC prohibits states from depriving anyone of life, liberty, or property without the due process of law. Tip: Distinguish from DPC of 5th Am, which exists to prevent the FEDERAL govt from the same deprivations.

Question 6

66 - purpose of the 15th Am?

Answer 6

…prohibits the fed and state govts (NOT private actors) from depriving anyone of the RIGHT TO VOTE - based on “race, color or previous condition of servitude,” and authorizes Congress to enforce this Amendment by enacting legislation.

Question 7

67 - STATE ACTION requirement

Answer 7

For a private citizen to bring a claim alleging a violation of their constitutional rights, the citizen must show some tangible “action” taken by the government or government actor.

Question 8

68 - Public Function Exception

Answer 8

To satisfy the state action requirement, a narrow exception exists where a private actor has been entrusted by the state to perform inherently governmental functions, becoming an agent of the state. Tip: A private actor performing a “public function” therefore may violate a private person’s constitutional rights.

Question 9

69 - May a private actor’s conduct satisfy the state action requirement?

Answer 9

No - the general rule is that private conduct does not have to comply with the US Constitution (except the 13th Am). However, an exception exists when private entities act in a way that is authorized, facilitated, or encouraged by the government (not merely permitted). Tip: An example of private conduct constituting state action is the “public function” exception where the private actor is performing an exclusive and traditional state function.

Question 10

70 - purpose of the CONTRACT CLAUSE

Answer 10

… prohibits STATES from enacting any law that retroactively impairs existing contract rights. Tip: The clause does NOT apply to the fed govt, which may pass legislation/laws that retroactively impairs contracts as long as it has a rational purpose.

Question 11

71 - EX POST FACTO law?

Answer 11

… makes illegal something that was legal when the act occurred. *It is unconstitutional for states or the fed govt to enact such legislation, as it retroactively punishes past innocent behavior. Tip: Ex post facto laws only apply to CRIMINAL CASES and may also involve imposing more severe punishment than was possible when the crime was committed or changing evidentiary rules to make it easier to convict.

Question 12

72 - PROCEDUAL DUE PROCESS

Answer 12

PDP is a constitutional guarantee that the government may not impair a person’s right to life, liberty, or property without NOTICE and a hearing before an unbiased decision-maker. Tip: Distinguish from SDP, which protects fundamental individual rights (e.g., privacy, travel, voting).

Question 13

73 - When a person’s liberty or property interest being impaired, what does due process require?

Answer 13

1) NOTICE of impairment (i.e., notification that one’s benefit is being terminated); and 2_ the opportunity to RESPOND before the interest is terminated (i.e., a chance to present objections to the proposed termination to a fair, neutral decision maker). Tip: A court conducts a balancing test to determine the type of hearing required.

Question 14

74 - 3 factors the ct use to determine what process is due (i.e., the extend of procedures and whether a prior hearing is necessary) upon a deprivation of procedural due process?

Answer 14

The ct determines whether a prior hearing is necessary and the extend of the procedures required by examining: (1) the important of the individual interest at stake; (2) the value of the particular procedural safeguards with respect to that interest; AND (3) the government’s interest in economic/administrative efficiency, including any additional discal or administrative burdens the process requirements will impose.

Question 15

75 - May an individual waive the PDP requirement?

Answer 15

Yes - as long as the waiver is made voluntarily and knowingly.

Question 16

76 - Is it permissible for the government to impose court fees on indigent people under the DPC?

Answer 16

No - the govt may not impose fees on indigent people IF the court fees affect the indigent person’s fundamental rights (such fees must be waived). Tip: If the imposition of certain fees does NOT interfere with any fundamental rights, they do not need to be waived.

Question 17

77 - purpose of the TAKINGS CLAUSE

Answer 17

… forbids the state or fed govt from taking private property for public use without providing just compensation.

Question 18

78 - When is a taking deemed for public use under the Takings Clause?

Answer 18

The government may only take private property if it is for public use, meaning is has a reasonable belief that the taking will benefit the public. The term PUBLIC USE is construed liberally.

Question 19

79 - What is the difference between a possessory taking and regulatory taking?

Answer 19

Possessory Taking: The govt physically confiscates or invades the property. *Regulatory Taking: The govt regulates the property to such an extent that no economically viable use remains. Tip: The government must pay JUST COMPENSATION for both types of takings.

Question 20

80 - JUST COMPENSATION and how is it measured?

Answer 20

Just compensation is the fair market value of the property, NOT the value of the owner’s particular need or the taker’s gain. *If the govt fails to pay fair market value, it must terminate the taking and pay the owner for any loss incurred.

Question 21

81 - SUBSTANTIVE DUE PROCESS

Answer 21

… prohibits any law from depriving any person of fundmental personal rights, including privacy, travel, and voting. SDP also limits the government’s ability to infringe upon non-fundamental rights. Tip: If a fundamental right is being denied to EVERYONE, it is a DP issue; if a fundamental right is being denied only to certain people, it is an equal protection issue.

Question 22

82 - purpose of the EPC of the 14th Am

Answer 22

… ensures that all laws protect people who are in the same circumstances equally (i.e., classes of people may not be discriminated against). *Laws may still classify people for specific reasons (e.g., taxation) but classifications must satisfy the applicable standard of review. Tip: The 14th Am EPC applies to states, but the same prohibitions extend to the fed govt under the 5th Am DPC.

Question 23

83 - Which type of govt classification triggers SS under the EPC?

Answer 23

SS applies when the government INTENTIONALLY discriminates (i.e., has a discriminatory purpose that is intentional or deliberate in nature) against a SUSPECT CLASS (e.g., race, alienage).

Question 24

84 - Which type of govt classification triggers INTERMEDIATE SCRUTINY under the EPC?

Answer 24

Intermediate Scrutiny applies when the govt regulation INTENTIONALLY discriminates (i.e., there is a discriminatory purpose that is intentional or deliberate) against a “quasi suspect” class (e.g., gender, legitimacy). Tip: When a law does NOT intentionally discriminate against a quasi-suspect class, but it has a disproportionate impact, the law will be subject to rational basis review.

Question 25

#85 - What is included in the nonsuspect "catch all" classification subject to rational basis review under the EPC?

Answer 25

Rational basis review applies to all government classifications that do NOT apply to a suspect or quasi-suspect class. *This is a catch all category that includes discrimination based on age (e.g., the elderly), disability (e.g., mental or physical), economic status, etc.

Question 26

#86 - What classifications are SUSPECT?

Answer 26

A suspect classification is a classification of people based on their race, national origin, or alienage. [RNOA] Tip: SS applies to regulations based on suspect classifications.

Question 27

#87 - Which classification are QUASI SUSPECT?

Answer 27

A quasi suspect classication is a classification of people based on their gender/sex or legitmacy (i.e., non-marital children). Tip: IS applies to regulations based on quasi-suspect classifications.

Question 28

#88 - Which rights are considered fundamental under the US Constitution?

Answer 28

The fundamental rights protected by the U.S. Constitution include: [1st IT P V] - *all 1st Am rights; *right to interstate travel; *right to privacy; *right to Vote. Tip: SS willi almost always apply to an infringement of a fundamental right, whether arising under due process or equal protection.

Question 29

#89 - level of scrutiny applied to AFFIRMATIVE ACTION CASES?

Answer 29

SS - I.e., laws enacted to favor racial minorities. Tip: The type of affirmative action policy will determine whether the court upholds the classification.

Question 30

#90 - When is ALIENAGE (citizenship) subject to rational basis review (i.e., NOT treated as a suspect class)?

Answer 30

When the alieange classification is related to SELF-GOVERNMENT and the DEMOCRACTIC PROCESS (e.g., voting/jury duty/working as a police officer/teacher/probation officer) or a federal immigration statute. Tip: Distinguish from most alienage issues, where SS will apply.

Question 31

#91 - 4 1st AM freedoms?

Answer 31

(i) religion; (ii) press; (iii) speech; and (iv) assembly and association. [RPSAA]

Question 32

#92 - HYPO: If the govt imposes a CONTENT-BASED regulation on speech, which presumption applies.

Answer 32

If the government imposes ANY content-based regulation, it is presumptively unconstitutional and will be struck --> UNLESS, it can survive SS (i.e., the regulation is necessary (narrowly tailored) to achieve a COMPELLING govt interest and uses the least restrictive means). Tip: The US Surpreme ct has never upheld a speech regulation that favors one viewpoint over another.

Question 33

#93 - What is the test for a content-NEUTRAL time, place, and manner restriction in a public forum?

Answer 33

The restruction must essentially satisfy intermediate scrutiny, defined in this context as: (1) NARROWLY tailored; (2) serving an important governmental interest; AND (3) leaving open alternative channels of communication. Tip: This test applies to regulations in public forums (e.g., streets, sidewalks, parks) and "DESIGNATED" public forums (e.g., private property often opened up for public use); a content-based restriction is presumptively unconstitutional.

Question 34

#94 - Which 5 types of speech MAY be restricted based on content (i.e., are unprotected speech)?

Answer 34

(i) imminent lawless action (threats intendd to place people in fear of harm); (ii) defamation; (iii) obscenity; (iv) fighting words; AND (v) misrepresentation (false or deceptive commercial speech). Tip: Even if speech is deemed unprotected, its regulation may still be struck if it is OVERBROAD or VAGUE.

Question 35

#95 - 3 elements of obscenity

Answer 35

expressions that, when taken as a whole, appeal to the prurient (shameful or morbid) sex interest without Serious Literary, Artistic, Political, or Scientific value (SLAPS)—are unprotected. *Shameful and morbid to whom? An average person applying current community standards. *Real child sexual abuse material is never protected. (Real means not drawn, computer-generated, or the like.) Elements: (1) appeals to the prurient interest in sex, measures by a community standard; (2) is patently offensive and an affront to contemporary community standards; AND (3) lacks SLAPS in light of a NATIONAL reasonable standard.

Question 36

#96 - Does the press have greater 1st Am rights than a private citizen?

Answer 36

No, generally the press has no greater freedoms. Tip: If a question involves the regulation of broadcase media (i.e., radio and television), other types of regulations may apply.

Question 37

#97 - 3 requirements will cause a person's affiliation with an illicit group to lose the freedom of association?

Answer 37

Freedom of Association is not protected if the person is: (1) an active member of an organization participating in illegal activities; (2) aware of the group's illegal activities; and (3) has the specific intent to further those illegal activities. Tip: Generally, any law regulating the freedom of association is subject to SS. You have the right to join whatever group you want. • If you’re affiliated with a group that does illegal activities, like subversive organizations, the government normally cannot use that against you, unless you have the specific intent to further illegal activities. • The government normally cannot use group membership—or the beliefs implied by membership—to determine eligibility for rights or benefits, like bar membership. • The government cannot fire employees or contractors because of political membership or belief unless necessary for effective job performance, like policy making. • The government cannot force you to let people join your group that would substantially hinder your group’s ability to express itself, like force a Republican club at a public university to let Democrats join.

Question 38

#98 - What does the freedom of religion PROHIBIT and PROTECT?

Answer 38

The freedom of religion prevents the government from: (1) enacting laws ESTABLISHING any one religion; OR (2) prohibitng the FREE EXERCISE thereof. Tip: The purpose of this freedom is for the government to abide by a course of neutrality.

Question 39

#99 - Which type of regulation violates the free exercise clause?

Answer 39

law that intentionally INTERFERES with or LIMITS religious practices, nor may it single out a particular religion for adverse treatment. [Any law regulating the exericse of religion is subject to SS]

Question 40

#100 - HISTORICAL APPROACH under the establishment clause

Answer 40

Examines whether the challenged govt action accords with historical practices and the Founding Fathers' original intent regarding religious establishments.

Question 41

#101 - Which level of scrutiny applies to INTERSTATE TRAVEL

Answer 41

SS applies to any law the inhibits a person's fundamental right to move into a state or move between states. [Durational residency requirements, which typically require some period of in-state residency before receiving benefits, must also satisfy strict scrutiny]

Question 42

#102 - 4 personal freedoms fall under the fundamental right to privacy

Answer 42

Marriage, procreation, contraception, and family and parental rights. Tip: the right to privacy falls under "substantive due process" which prevents laws from depriving anyone of fundamental rights; if a statutory classification unduly burdens a fundamental due process right, it triggers SS under equal protection.

Question 43

#103 - level of scrutiny applies to the RIGHT TO VOTE

Answer 43

SS (unless on the basis of age, residency, or citizenship. [Requirements to own property in order to vote are almost always unconstitutional]

Question 44

#109 - What is LIBERTY for PDP

Answer 44

(1) freedom from government-imposed restraints, in both criminal & non-criminal contexts; AND (2) the right to enter into contracts and seek gainful employment. [In the crim context, DP ensures that an accused has certain rights regarding physical restraint]

Question 45

#101 - What is PROPERTY for PDP

Answer 45

is ones ownership over real and personal property items (e.g., land/money) or a rightgul entitlement to something (e.g., an interest in a contract for employment). To have a property interest, one must have more than some abstract need for, desire for, or unilateral expectation of a benefit; they must have a legitimate legal claim to it.

Question 46

#1028 - Which of the first 10 Ams have NOT been incorporated to the states?

Answer 46

3rd - quatering soldiers 5th - grand jury indictments; 7th - civil jury trials (the remaining ams DO apply to state and local governments through incorporation into the DPC of 14th am

Question 47

#1045 - Which two questions should be asked to determine whether PDP has been denied?

Answer 47

(1st) has a libtery or property right been impaired; and (2nd) if yes, what process is due? [For a govt job to be considered a property interest, there must be a legitimate claim or entitlement to the job, usuallly though a K that says termination may only be "for cause"]

Question 48

#1046 - What standard is used for determining whether a TAKING is for PUBLIC USE?

Answer 48

if it is rationally related to any conceivable public purpose (e.g., for the benefit of health, welfare, economic, or safety). [A taking may be for a public use even if the property will not actually be used by the public (i.e., the taking may be constitutional if a private company is using it in a way that furthers a public interest)

Question 49

#1048 - 2 prongs of the SS test under EPC?

Answer 49

(1) whether the classification (i.e., law or regulation) is NECESSARY to promote a COMPELLING GOVERNMENT PURPOSE; and (2) if the necessary classification is NARROWLY TAILORED such that no alternative, less burdensome means exists. [The BoP is on the govt]

Question 50

#1052 - RBT under the EPC?

Answer 50

govt action is presumed constitutional unless the challanger can prove the govt classication is NOT RATIONALLY RELATED to any constitutionally permissible state interest (i.e., wholly arbitrary or capricious"). [Cts give wide latitude to govts in enacting economic and social regulations]

Question 51

#1055 - how do fund rights arise in the context of EP rather than DP?

Answer 51

When a fundamental right is violating SOME people's freedoms, but not others - EP issue When a fundamental right is being denied to EVERYONE, it is a SDP issue [A fund right will be subject SS regardles of whether it falls under EPC or DP]

Question 52

#1056 - what is the test for when the government may impose a time/place/manner restriction on expresssion in a NON-public forum?

Answer 52

Passes IF: (1) reasonably related to a legitimate purpose; (2) viewpoint-neutral; AND (3) not intended to suppress speech.

Question 53

#1059 - if a facitally-neutral regulation burdens religious conduct, but applies to others who engage in the same conduct for non-religious purposes, will it be upheld?

Answer 53

Yes, upheld even though it burdens religious exercise. [A ct will never inquire into the truth of a person's beliefs, but it will inquire inot the sincerity of those beliefs.]

Question 54

#1531 - Under SDP, what level of scrutiny applies to the deprivation of FUNDAMENTAL rights?

Answer 54

SS - the govt must show the law is necessary to achieve a compelling government interest.

Question 55

#1532 - Under SDP, what level of scrutiny applies to the deprivation of NONfundamental rights?

Answer 55

Rational basis review - the law is upheld if it is rationally related to a legitimtate government purpose. The burden is on the challenger.

Question 56

#1533 - PDP

Answer 56

prevents the govt from impairing a person's right to life, liberty, or property without fair process.

Question 57

#1534 - Incorporation Doctrine

Answer 57

constitutional doctrine through which the first 10 am (Bill of Rights) are made applicable to the states throught the DPC of the 14th Am.

Question 58

#1535 - what justification has ben used to uphold AFFIRMATIVE ACTION programs under SS?

Answer 58

Remedying the effects of past or present discrimination in a particular instituion has been upheld as permissible because it is narrowly tailored to further a compelling government interest.

Question 59

#1536 - EPC of 14th Am

Answer 59

Prohibits states from treating different classes of people differently without adequate justification.

Question 60

#1537 - Which level applies to gender classifications?

Answer 60

IS

Question 61

-

Answer 61

-

Question 62

-

Answer 62

-

Question 63

-

Answer 63

-

Question 64

#1541 - threshold issue for EPC

Answer 64

Was there state action? Also consider whether private action may be considered state action.

Question 65

-

Answer 65

-

Question 66

-

Answer 66

-

Question 67

#1544 - freedom of association

Answer 67

proects an individual's right to freely associate with other people. [This freedom is often around joining in groups for expression or political affiliation; it is not an absolute right, as the govt may regulate based on a compelling interest if less restrictive means are unavailable]

Question 68

#1545 - content-NEUTRAL regulation on speech

Answer 68

is aimed at regulating the TIME/PLACE/MANNER of the speech, not its message or content

Question 69

#1546 - which level of scrutiny applies to content-NEUTRAL regs in a PUBLIC FORUM?

Answer 69

IS - to satisfy, the test for this type of reg requires reasonable restriction on time, place and manner of speech that are NARROWLY tailored to serve an important govt interest, and the regulation must leave open alternative channels of communication to engage in such speech.

Question 70

-

Answer 70

-

Question 71

#1548 - LIMITED PUBLIC FORUM

Answer 71

is public property that the govt opens for specific speech reasons and may regulate around that particular use (e.g., a school may open its gym for a SINGLE community event related to a political issue). [LPF are in contrast to public forums, designated public forums, or nonpublic forums]

Question 72

#1549 - Freedom of speech

Answer 72

The 1st Am protects an individual's right to free speech. It is applicable to the states through the 14th Am.

Question 73

#1550 - What is the test for govt regulation of protected commercial speech

Answer 73

The govt may regulate otherwise protected commercial speech if the regulation: (1) serves a substantial government interest; (2) directly advances that interest; and (3) is reasonably tailored to serve that interest.

Question 74

#1551 - What is content BASED regulation on speech

Answer 74

regulation of speech of communacative conduct restricted based on its subject matter or viewpoint, not just its time/place/manner

Question 75

#1552 - DESIGNATED PUBLIC FORUM

Answer 75

public property that is not regularly open to speech-related activities, but which the government has thrown open for such activities on a permamnent or limited basis (e.g., schools that are open for after school by social, civil, or rec groups).

Question 76

#1553 - When is commercial speech UNprotected?

Answer 76

commercial speech that is FALSE, MISLEADING, DECPTIVE, or ILLEGAL is NOT protected and be regulated by the government.

Question 77

#1554 - NONpublic forum

Answer 77

govt property not traditionally used for public speech (e.g., principal's office at a public school, military base) and the government MAY regulate content but not viewpoints. [Content regs that are viewpoint-neutral may reestrict speech of certain subjects but may not restrict the speech of a particular view]

Question 78

#1555 - test for when the govt may restrict SYMBOLIC SPEECH

Answer 78

if the reg: (1) furthers an important govt interest unrelated to the suppression of speech; and (2) prohibits no more speech than necessary

Question 79

#1556 - When is speech reg considered OVERBROAD?

Answer 79

when it bans BOTH protected and UNprotected speech.

Question 80

#1557 - what is speech that INCITES IMMINENT LAWLESS ACTION

Answer 80

if: (1) there is a substantial likelihood the advoacy is directed to inciting or producing imminent lawless action; AND (2) is likely to incite or product such action

Question 81

#1558 - when is speech reg VAGUE?

Answer 81

if it is so unclearly defined that a reasonable person would not be able to tell whether the speech is permitted or prohibited.

Question 82

#1559 - Fighting words

Answer 82

words that are likely to cause the listener to commit an act of violence

Question 83

#1560 - Establishment Clause

Answer 83

prohibits the govt from discrimination against specific religion or sect.

Question 84

#1561 - PRIOR RESTRAINT on speech

Answer 84

is a prohibition on speech before the speech has occurred, through a court order or licensing requirement. [disfavored and must pass SS]

Question 85

#1562 - what must a public official or public figure show to successfully raise a defamation claim?

Answer 85

1st Am requires the P to show that the D acted with actual malice. Actual malice occurs when a statement was made with knowledge of its falsity or with reckless disregard for whether it was false or not.

Question 86

#1563 - initial determination to analyze TPM restriction

Answer 86

first determine the type of forum the speech or conduct occurs

Question 87

#1564 - May the press use the first am as defense to a trespass or other tort claim?

Answer 87

No

Question 88

#1565 - PUBLIC FORUM

Answer 88

is property open to the public (e.g., public sidewalks)

Question 89

#1566 - which level scrutiny applies to CONTENT BASED regs on speech?

Answer 89

SS - reg is necessary to achieve a compelling government interest, and uses the least restrictive means.

Question 90

#1567 - when does the 1st Am protect the press from liability when publishing?

Answer 90

when publishing TRUTHFUL private facts about a matter of public concern where such information was legally obtained.

Question 91

#1568 - Bill of attainder

Answer 91

unconstitutional legislative act that punishes individuals without a judicial trial.

Question 92

#1596 - what are the ways a statute may constitue an EX POST FACTO law

Answer 92

retroactively altering the criminal law if it: makes criminal an act that was not a crime when committed; prescribed greater punishment for a crime after its commision; decreases the amount of evidence required for conviction; extends the SoL for a crime as to which the previously applicable SoL has already expired.

Question 93

#1570 - does the P & I clause of Art IV apply to corporations or aliens?

Answer 93

No, only applies to individuals who are US citizens.

Question 94

#1571 - when will a stte law that discriminates against non-residents be upheld under the P & I claue of Article IV?

Answer 94

if there is a substantial justification for the differing treatment [in application, this requires the state to demonstrate that the non-residents are part of the cause of the problem and no less restrictive means exist to solve that problem]

Question 95

#1572 - Contracts Clause

Answer 95

prevents state governmetns from passing laws that retroactively or substantially impair existing contracts

Question 96

#1573 - what are levels of scrutiny applied to government interference with PUBLIC versus PRIVATE Ks

Answer 96

Private Ks: if a law substantially interferes with a private K, IS applies. Public Ks: if a law substantially interferes with a public (govt) contract, SS applies.

Question 97

#1574 - Takings Clause

Answer 97

provides that private property may not be taken by the govt for public use without providing just compensation.

Question 98

#1575 - POSSESSORY Taking

Answer 98

is a per se taking that occurs when the govt phsyically takes or occupies property.

Question 99

#1576 - REGULATORY Taking

Answer 99

occurs when a government regulation infringes upon property ownership to such an extend that the regulation leaves no economically viable use of the property.

Question 100

#1577 - which factos will the ct balance in determining whether a regulatory taking has occurred?

Answer 100

(1) impact of the reg on the claimant; diminumation in valude to the owner; AND (2) extent to which the regulation interferes with distinct investment-backed expectations.

Question 101

#1578 - will govt conditions imposed on the approval of permits constitute a taking?

Answer 101

No. The govt may impose an exaction or demand in exchange for a benefit conferred by the govt, such as a conditonal approval of a building permit. The govt may impose such a burden without it being conisdered a taking as long as there is an "essential nexus" between the PUBLIC NEED and the IMPOSED EXACTION, and if the benefit from the demand is roughly proportional to the burden imposed by allowing the proposed development. [the burden is on the govt to show evidence of its findings]