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Stake's Classes > Land Use Controls > Flashcards

Land Use Controls Flashcards

1
Q

What leads to conflicts in land uses?

A

Proximity

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2
Q

What is contributing to proximity in the United States?

A
  • Population shift: migration to cities, mechanization of rural activities
  • Population growth: more growth in south and west
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3
Q

How is the US population increasing?

A

Not from fertility; from immigration and increasing lifespan

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4
Q

What percentage of the US population lives in metro areas of more than 50k people?

A

84%

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5
Q

Are speculators the same as gamblers?

A

From their perspective, yes. From society’s perspective, no–they just transfer risk like insurance

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6
Q

Where did most foreclosures occur in 2008?

A

The outer ring of the suburbs

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7
Q

What are the two perspectives of law?

A
  • Non-consequentialist–does law fit within structure of morality
  • Consequentialist–look at outcome of laws from different perspectives, like fairness, liberty, dignity, human flourishing.
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8
Q

What does the consequentialist perspective applied to land use law ask?

A

How we might make the most of our land resources.

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9
Q

What are some of the components of subjective wellbeing?

A

social support, healthy life expectancy, freedom to make life choices, generosity, perception of corruption

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10
Q

What are public goods?

A

Consumption is non-rivalrous and non-excludable

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11
Q

Are schools public goods?

A

Fee & Hartley at the Federal Reserve say yes

*note: often difficult for the market to supply public goods, so they are better provided by government

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12
Q

What is utility/subjective wellbeing?

A

Includes happiness, fulfillment, and human flourishment

Correlates with some measures of quality of life

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13
Q

Can GDP/wealth be used as a proxy for utility since utility is difficult to measure at a local level?

A

Log of GDP correlates with SWB

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14
Q

What is the decreasing marginal value of wealth?

A

The more you work, the less utility you get from each additional hour of work and each dollar you make.

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15
Q

What is the problem with bidding for resources?

A

The person who will get more utility from the item will not necessarily win the auction (this happens when the bidders differ in marginal utility of income)

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16
Q

What are the trends of happiness and GDP in the US? What might be the reason for this?

A

Since 1972, average happiness has generally diminished while GDP and average household income have increased.

Reasons:

  • increasing marginal cost of work
  • declining marginal utility of income
  • market allocation through bidding
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17
Q

Pigou on externalities

A

Private costs (or benefits) and social costs (or benefits) can diverge, leading to socially suboptimal (inefficient) private decisions. The government could subsidize or tax to enhance efficiency in a free market system.

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18
Q

What are externalities?

A

Effects on others not within the actors self interest

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19
Q

What can internalize externalities?

A

Sympathy, social coordination & social norms (Lin Ostrom), regulations, taxes or subsidies, Coasean bargaining

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20
Q

Coase Theorem

A

If market transactions are costless, legal rights will be traded to maximize the value of resources (so regulation is not needed)

  • Parties bargain, with rights going to person who values them most highly
  • Neighbors will create incentives for correct activity
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21
Q

What problems could prevent a deal between a builder and neighbors?

A
  • Strategic behaviors
  • Information problems
  • Ordinary transaction costs (such as lawyer’s fees)
  • Wealth limitations (liquidity constraint)
  • WTP
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22
Q

What is the endowment effect?

A

Difference between WTP and WTA. People can have different values depending on whether they are selling or buying rights

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23
Q

Who enforces land use controls?

A
  • Federal and state governments are both sovereigns

- Local governments are authorized by states (includes counties and townships, which are subdivisions of counties)

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24
Q

Are cities included in the state government?

A

They are separate governments from their state government but get power from the state.

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25
Q

What powers do cities have regarding surrounding land?

A

Cities can annex surrounding land.

  • some states allow residents in the fringe to veto
  • residents may incorporate a new city to avoid annexation
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26
Q

Dillon’s Rule

A

State delegations of power should be interpreted by courts to be as narrow as possible, only granting powers essential to carry out expressly enumerated powers.

  • has been eroded by home rule statutes granting general power to chartered local governments
  • courts and legislatures have been abandoning the rule
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27
Q

How is city power limited?

A
  • City charter
  • State procedural requirements
  • Specific state grants of authority that imply lack of other authority
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28
Q

Unlimited domain legislative power

A

Cities can adopt any rules not prohibited by law

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29
Q

Limited domain legislative power

A

Cities can adopt rules that relate to municipal or local affairs

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30
Q

What does Samuelson say about public goods?

A

No decentralized pricing mechanism (including the free market) can determine the optimal consumption of public goods.

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31
Q

Do local governments make efficient decisions?

A

NO: Somin and Downs say voters are rationally ignorant.

YES: Tiebout and Fischel say owners will support efficient regulations because they will maximize home values.

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32
Q

What is Fischel’s homevoter hypothesis?

A

We can understand local voting by the expected effect on home prices which homeowners feel (no matter whether they stay or sell)

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33
Q

What are the types of legal analysis?

A
  • Descriptive (positive): What is (how do decision makers behave?)
  • Prescriptive (normative): What ought to be (how should decision makers behave)
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34
Q

Are descriptive and prescriptive legal analyses the same?

A

No! Is is is; is is not ought

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35
Q

Private nuisance

A

Unreasonable interference with use or enjoyment of land

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36
Q

Public nuisance

A

Does not require interference with use and enjoyment of land, just the lives of a considerable number of persons

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37
Q

What are the two types of private nuisance?

A

Nuisance per se and nuisance per accidens

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38
Q

Nuisance per se

A

A form of private nuisance…

  • designated by statute
  • illegal activities
  • some activities that have been repeatedly declared a nuisance
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39
Q

Nuisance per accidens

A

A form of private nuisance…

  • Nuisance in fact, considering all circumstances
  • Location or method of construction or operation
  • Two types
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40
Q

What are the two types of nuisance per accidens?

A

Negligent and intentional

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41
Q

What is the negligent form of nuisance per accidens?

A
  • Negligent behavior, or worse (reckless, wanton, or unusually hazardous)
  • In this context, negligence means creating an unreasonable risk
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42
Q

What is an unreasonable risk?

A
  • Carroll Towing - Hand formula cost-benefit analysis
  • Rose v. Chaikin–balancing benefits (social utility) and irritation (harm created)

Comparing the costs from D continuing as is with the costs from D not continuing

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43
Q

What are the expected harms in a negligent nuisance analysis?

A

The costs to P and others if D does not change behavior

-Likelihood x magnitude

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44
Q

What is the magnitude of harm in a negligent nuisance analysis?

A

The harm from D continuing is born by P either as harm or as a cost of avoiding that harm.
-P’s harms are cost of efficient mitigation plus costs of unmitigated harms. The harms are the lowest combination of P avoiding, mitigating, and bearing the injury from D’s operation.

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45
Q

Does payroll get counted in the costs of stopping operations?

A

Not the entire payroll, only the gain (pay minus reservation price)

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46
Q

What are the expected benefits of D continuing operation?

A

The loss if the defendant is stopped (lowest cost combination of D moving, mitigating, and stopping operation)

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47
Q

When is there a negligent nuisance?

A

When D’s conduct is unreasonable under the circumstances (harms>benefits)

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48
Q

In Rose v. Chaikin, is the windmill determined to be a nuisance?

A

Yes

The windmill created significant noise, caused stress symptoms in neighbors, and left other members of the neighborhood unable to enjoy the peace of their homes. Additionally, sounds came from a motor and exceed the permissible decibel level articulated in city ordinances.

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49
Q

When is nuisance per accidens intentional?

A
  • D’s action is intentional and unreasonable

- Harm to P is substantial and unreasonable

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50
Q

Middlesex Co. v. McCue

A
  • Court is not weighing costs and benefits, so this is not a negligent nuisance case
  • Dirt from D’s land was filling P’s pond
  • D’s conduct was intentional, because he intended to till his land knowing that the dirt would fill the pone
  • Finds no nuisance
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51
Q

Abnormal vs. Subnormal behavior

A

Abnormal - different kind of use than usual neighbor

Subnormal - more harm than usual neighbor would cause

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52
Q

Does Holmes take an abnormal or subnormal approach in Middlesex?

A
  • Notes that cultivating land is not abnormal

- “Questions of degrees” indicates subnormal approach

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53
Q

Can D also be liable for activities of other humans on D’s land?

A

Yes

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54
Q

Can D be liable for leaving his property in its natural state?

A

Yes, in some jurisdictions, you can be liable for nuisance if you allow nature to take over your yard.

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55
Q

Are governmental activities immune to nuisance claims?

A
  • Likely immune to injunction
  • Possibly immune to damages
  • Not immune to both unless sovereign immunity was not waived
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56
Q

What do right to farm statutes do?

A

Protect farming against some nuisance suits in some states. This effectively subsidizes farming

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57
Q

What are positive externalities associated with protecting farming?

A
  • lower cost of food
  • cultural identity
  • dislocation costs
  • national security, defense
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58
Q

Are spite fences considered nuisances?

A
  • Traditionally: NO

- Modern doctrine: A fence can be a nuisance if it is (1) constructed for malice and (2) lacks utility

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59
Q

How do we determine what is unreasonable?

A

D’s interference must be offensive to an average neighbor of normal sensibilities

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60
Q

Is interference with sunlight a nuisance?

A
  • Fontainebleau Hotel Corp: traditional American view is that there is no legal right to sunlight
  • Prah v. Maretti and some modern statutes: protecting solar collectors
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61
Q

Doctrine of Ancient Lights

A
  • England: 20 years use of sunlight brings right to use more in future (prescriptive easement or negative servitude)
  • US: Owner cannot gain easement to future light by using light.
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62
Q

Are visual blights considered nuisances?

A
  • Traditional view: not a nuisance

- Junk vehicle collection enjoined in VA in 1982

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63
Q

Falloon v. Shilling

A
  • Neighbor seeks injunction when a home in the neighborhood is rented to a Black family
  • Court refuses to recognize that prejudice; to do so would be inconsistent with Constitution, immoral, inconsistent with goal of shaping preferences away from racism
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64
Q

How is interference with airflow treated?

A

Same as sunlight

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65
Q

Anticipatory nuisance

A

-Suit is premature if harm has not started. Most courts say to come back when there is actually a problem

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66
Q

Is coming to the nuisance a bar to suit?

A
  • Right to farm statutes: coming to farm is a per se defense
  • Common law (Kellogg v. Village of Viola): No, it is not a bar to suit. Starting first does not grant D a perpetual easement to infringe
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67
Q

Is coming to the nuisance a factor in a suit for an injunction?

A

Kellogg v. Village of Viola & Restatement say yes

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68
Q

Is coming to the nuisance a factor in an action for damages?

A
  • Restatement: Yes

- Kellogg v. Village of Viola: No

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69
Q

What are efficiency costs if P cannot sue for loss of uses before making improvements?

A
  • Race to invest (so investments are premature)
  • D overinvests
  • D fails to start up in a location that would be suitable for longer
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70
Q

What does Ampitheatres, Inc. v. Portland Meadows say about abnormally sensitive plaintiffs?

A

A man cannot increase the nuisance liabilities of his neighbor by applying his property to a special and delicate use.

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71
Q

What is the traditional nuisance remedy?

A

Injunction

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72
Q

What were the facts in Boomer v. Atlantic Cement, and why was injunction not a proper remedy?

A
  • Facts: Cement plant emitted dirt, smoke, vibrations. Boomer wanted to enjoin cement production
  • Why was injunction not proper? Economic/social consequences of shutting down production outweighed benefits to neighbors
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73
Q

What would Coase Theorem say to do in Boomer?

A

Bargain with neighbors and buy them out. This might not work because of holdouts among neighbors (they have a lot of leverage in this situation)

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74
Q

What is the modern approach to injunctions for nuisances?

A

Balance the equities before granting an injunction

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75
Q

Can estoppel be a defense to nuisance?

A

Yes

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76
Q

Can implied consent be a defense to nuisance?

A

Yes

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77
Q

Can prescription be a defense to nuisance?

A

Usually no

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78
Q

How do you calculate damages for nuisance? Liability rule from Boomer v. Atlantic Cement

A

Difference between the market value of the plaintiff’s property in the absence of the nuisance and its market value in presence of the nuisance

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79
Q

Do damages include emotional and subjective harm from nuisance?

A

Yes, for the buyer of the term or fee, but perhaps not for the plaintiff

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80
Q

What might be the problem with temporary damages?

A
  • If too high, acts as injunction
  • If too low, there is still too much production
  • might not be subtle enough
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81
Q

What was the remedy in Spur Industries v. Del Webb?

A

P can make D move, but P must pay for it.

*Feasible because the externalities in Del Webb had a large effect on one neighbor who had resources to pay

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82
Q

What are the possible approaches to remedies after finding a nuisance?

A
  • Determine if D’s activity is efficient
  • If D’s activity is inefficient: enjoin
  • If D’s activity is efficient: deny injunction (if court knows P’s costs award damages, if court only knows D’s cost of moving then make P pay for D to move)
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83
Q

What does SD law say about self help as a nuisance remedy?

A

Private person can abate the neighbor’s private nuisance by removing or destroying it (without committing a breach of the peace or doing unnecessary injury)

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84
Q

Who can bring a public nuisance claim?

A
  • Government attorney on behalf of the people
  • Private plaintiff on behalf of many if they can show special injury or (under Restatement) if they seek only an injunction.
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85
Q

Reimbursement

A
  • Most courts say there is no common law right
  • Some states have found and enforced a promise to reimburse
  • Some statutes require contribution to border fences
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86
Q

Detroit Baseball Club v. Deppert

A
  • Facts: Deppert had property next to a baseball club and built bleachers for spectators to sit and watch the game from his barn roof
  • Harm: Club had a fifty cent entrance fee, but it was not clear how many people using Deppert’s barn would have paid the full entrance fee
  • Under common law, a competing business is not a nuisance just by competition
  • Holding: Deppert’s actions were not found to be a nuisance
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87
Q

What was the result in Ulmer, a case where P drained a quarry and ended up also draining D’s quarry and sued D?

A

D pays P nothing

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88
Q

Hoffman v. Clark

A
  • Facts: IL had a tax break for farming, but rollback of 3 years’ tax breaks if the land is developed
  • Deemed constitutional because the reduction is rationally related to the permissible purpose of protecting farming
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89
Q

How do tax breaks for homeownership relate to total spending by HUD?

A

The tax breaks exceed total spending

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90
Q

What are tax breaks for residential land use?

A
  • Rental value of owner-occupied housing is not income under the income tax
  • The mortgage interest deduction if imputed income is not taxed
  • Exclusion of gains from sale of principal residence
  • Tax deduction for state and local taxes on homes
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91
Q

Does homeownership influence political behavior?

A

Hally and Yoderz (2018) find that buying a home leads individuals to participate more in local elections. When zoning issues are on the ballot, the homeowner turnout boost is almost twice as large.

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92
Q

What are beneficial externalities of homeownership?

A
  • Owners vote more than renters
  • Owners might take efficient precautions to prevent deterioration of property
  • Ownership increases length of occupancy and the chances an owner can be influenced by social pressures
  • Owners have more liquidity, allowing efficient transactions not possible for those with liquidity constraints
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93
Q

What are the negative effects of housing subsidies?

A
  • Raises other taxes
  • Reduces government programs
  • Increases deficit
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94
Q

Who benefits most from the federal housing subsidies?

A

The wealthy, while those with the lowest income face the most severe housing cost burdens

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95
Q

What is a servitude?

A

Private actors enforce rules that are set mostly by private parties. The contract can extend beyond the person who wrote it

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96
Q

Contract requirements for servitude

A
  • Capacity to contract
  • Consideration
  • Compliance with statute of frauds (writing, signed by person against whom it is being enforced)
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97
Q

When will a servitude not be enforced under contract law principles?

A
  • Fraud
  • Duress
  • Unconscionability
  • Violation of public policy (such as promises to use for criminal activities or racial restrictions)
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98
Q

Two ways to find state action by a private actor

A
  • Nexus: various factors, including whether there is significant state involvement, the extent to which the actor relies on governmental assistance and benefits, and whether the injury is aggravated in a unique way by the incidents of governmental authority
  • Public function: whether the actor is performing a traditional governmental function
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99
Q

Shelley v. Kraemer (race discrimination and state action)

A

Violation of equal protection clause for court to enforce a racially restrictive covenant (race discrimination increases chance of finding state action)

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100
Q

Girard v. 94th St and Fifth Ave. Corp. (discrimination in covenants)

A

No state action in court enforcement of covenant that required board approval for sale (plaintiff claimed board discriminated on the basis of sex). Court said covenant was neutral on its face.

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101
Q

Federal statutory limitations on covenants

A
  • Antitrust laws
  • Civil Rights Act of 1866
  • Fair Housing Act
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102
Q

What did the Civil Rights Act of 1866 do?

A

Prohibited refusals to rent or sell based on race.

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103
Q

What did Fair Housing Act of 1968 do?

A

Prohibits refusals to rent or sell base don race, color, national origin, sex, familial status, and handicap.

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104
Q

Are disparate impact (statistical) claims cognizable under the Fair Housing Act of 1968?

A

Yes, but plaintiff must be able to point to a policy that causes the statistical disparity and the defendant may explain the valid interest the policy serves.

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105
Q

What have Indiana appellate courts said about covenant restrictions on rental of units?

A

Restrictive covenants prohibiting leasing violate the federal Fair Housing Act because of disparate impact on minorities who can afford to lease but not buy; HOWEVER, the Indiana S. Ct. reversed

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106
Q

The Fair Housing Act of 1968 prohibits religious restrictions with what exception?

A

Religious associations can limit their rentals and sales to their own members

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107
Q

What statutory limitations on servitudes have been imposed by states?

A
  • Age restrictions
  • Speech restrictions
  • Sexual preference or orientation
  • Religious restrictions
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108
Q

What is a Pareto superior change?

A

No one is worse off in the new world and someone is better off.

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109
Q

What is Pareto optimality?

A

When there is no world that is Pareto superior to the current world.

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110
Q

Nahrstedt (CA)

A
  • Statutory standard: servitude enforceable unless unreasonable
  • Court’s interpretation: Covenant in recorded documents is presumed valid unless it is arbitrary, imposes burdens that substantially outweigh benefits to other residents, or violates a fundamental public policy
  • Holding: “No pets” is enforceable against Nahrstedt, prohibiting her cats
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111
Q

When might judicial invalidation of a covenant be efficient?

A
  • When there are sufficient negative externalities beyond the parties
  • Relevant provision of agreement was not salient
  • Court knows that subjective costs to CR outweigh subjective benefits to CE and there are substantial transaction costs that would prevent the parties from renegotiating the promise.
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112
Q

Common law property limitations with servitudes

A

Enforceable unless it amounts to a restraint on alienation, no other limitations

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113
Q

Does Stake think the Restatement 3d changed the common law rule on servitude limitations?

A

Yes

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114
Q

Restatement 3d on servitude limitations

A

Enforceable unless it violates public policy:

  • arbitrary, spiteful, or capricious
  • unreasonably restrains trade or competition
  • unreasonably burdens fundamental constitutional rights
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115
Q

What are the general efficiency consequences of adding an unreasonableness standard?

A
  • Generates litigation
  • If retroactive, generates uncertainty
  • Prospectively, generates avoidance behaviors
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116
Q

What are the two doctrinal grounds for enforcing a covenant?

A
  • Real covenant (running with the land)

- Equitable servitude (equitable restriction)

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117
Q

What does the Restatement of Property do with real covenants and equitable servitudes?

A

Combines them along with easements into one “servitude”

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118
Q

How to create servitudes under the Restatement 3d?

A

Covenants: neither prescription nor implication
Equitable servitudes: Implication
Easements: prescription and implication

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119
Q

To what parcel does the benefit attach?

A

If appurtenant, is attached to the dominant parcel (owned by CE)

If not appurtenant, is held in gross.

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120
Q

To what parcel does the burden attach?

A

The servient parcel (owned by CR)

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121
Q

Real covenant elements

A
  • Intent
  • Horizontal privity (no defenders of this element)
  • Vertical privity
  • Notice
  • Touch and concern
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122
Q

Horizontal privity Burden & benefit

A

For burden to run, relationship required between original two parties other than the promise (potential relationships required: landlord/tenant, mutual and simultaneous, successive, none)
-No relationship required for benefit to run

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123
Q

What are the asymmetrical results from the horizontal privity requirement?

A

Buyer from one can get damages for neighbor breach but not have to pay damages for the same breach by himself.

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124
Q

What is vertical privity?

A

Burden of a covenant sticks to the estate, not to the land. If CR2 does not receive the legal rights to the land (so if they are a tenant or an easement holder), they are not personally liable.

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125
Q

Vertical privity burden & benefit

A
  • Burden: same estate
  • Benefit: either the same estate or if CE1 intended to pass some interest to CE2 (so a tenant can enforce but not an adverse possessor)
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126
Q

What is Stake’s analogy for vertical privity?

A

Bird on wagon, where bird is the burden and the wagon is the estate. If CR2 does not get the wagon, CR2 does not get the bird.

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127
Q

Recording Act requirements for notice burden in covenants

A

A purchaser who…

  • is subsequent
  • pays valuable consideration,
  • is in good faith,
  • has no constructive notice,
  • and records first,
  • is not bound by the earlier interest.
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128
Q

How to protect your interest in a real covenant?

A

Record it

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129
Q

Stake’s efficiency approach to touch and concern

A

The burden sticks with CR1, the person who made the promise, unless there is an efficiency reason to move the burden to the successor, CR2 (think about who is best situated to perform)

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130
Q

Eagle Enterprises v. Gross

A
  • Promise at issue: owner will pay money to CE.
  • A bare covenant to pay money does not T&C.
  • Under efficiency test, it doesn’t matter who pays the money
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131
Q

Neponsit

A
  • Promise: Owner will pay home association dues

- This is a promise to pay money, but HOA dues touch and concern the land.

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132
Q

Promises that do not touch and concern

A
  • Promise to pay money (other than association dues)

- Promise not to compete

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133
Q

Is notice needed for benefit to run?

A

No

134
Q

What is the purpose of the touch and concern doctrine?

A

To keep promises unrelated to land from burdening land and clogging up land transfers.

135
Q

What is the R3d approach to touch and concern?

A

Superseded with a public policy limitation

136
Q

What are the differences between touch and concern and the R3d approach?

A

1) Simpler to apply/predict (Stake doesn’t think so)
2) Public policy is an initial enforcement doctrine rather than an allocation or running doctrine (enforceable against all or none, no option in between)

137
Q

What does Stake think about the RS3d’s approach to touch and concern?

A

Does not like it at all

138
Q

The traditional remedy for breach of a real covenant is…

A

Damages

139
Q

The most common remedy for equitable servitudes is…

A

-Specific performance of positive covenant and injunction for negative covenant

Why? Land is unique so damages are inadequate

140
Q

Equitable servitude differences from real covenants (Tulk v. Moxhay)

A
  • Some courts do not require affirmative promises (only negative promises)
  • sometimes more notice for burden to run
  • no horizontal privity
  • no vertical privity required (the burden runs with possession)
141
Q

Impact of vertical privity in equitable servitudes

A

Because there is no vertical privity, the covenantee could get an injunction against the tenant to prevent future violations of the promise

142
Q

What does the Board of Directors for a common interest community do?

A

Manages common areas, collects assessments, and levies fines (or delegates authority to do this)

143
Q

How many people in the US today live in common interest communities?

A

70 million

144
Q

Do all jurisdictions accept the common plan doctrine?

A

No, at least three states have rejected it.

145
Q

Common plan doctrine

A
  • Common plan
  • Common grantor
  • Unfairness if not enforced against all
  • Must determine when it started

Basic Question: Is there enough evidence to conclude that the grantor had an intention to impose a scheme of mutually enforceable restrictions both 1) against all the purchasers and their successors and (2) in the interest of all the purchasers and their successors? If so, then parcels are burdened without a writing in their chain of title.

146
Q

What does the common plan doctrine allow the court to do?

A

Imply an equitable restriction (reciprocal negative easement)

147
Q

What is the common plan doctrine limited to?

A

Restrictions

148
Q

If the common plan doctrine is adopted, how will subsequent buyers protect themselves against the burdens of unwanted servitudes?

A
  • Examine deeds out of common grantors to see if any have objectionable restrictions
  • Ask neighbors if there are restrictions
  • Get release from all who do have a restriction in their deeds
149
Q

If the common plan doctrine is not adopted, how will subsequent buyers protect themselves against the possibility that neighbors are not subject to the same restrictions?

A
  • Check deeds to nearby parcels to make sure restriction is included
  • Insist that developers record restrictions binding remaining parcels
150
Q

How can servitudes be terminated?

A
  • automatic termination by terms of promise
  • release of the interest (or waiver) by all holders of the dominant estates
  • statutory limitation (unless repealed or inapplicable)
  • estoppel (a person cannot change position to detriment of another who reasonably relies)
  • selective enforcement
  • prescription (failure to enforce)
  • laches (waited too long to enforce and someone relied on that inaction)
  • abandonment
  • majority action
  • changed conditions or changed circumstances or change of neighborhood
151
Q

Cordogan v. Union National Bank of Elgin

A
  • Facts: Ps sue to stop D from building multi-family dwellings on 3 parcels. D asserts changed conditions and wants to be freed from his promise to build single-family dwellings
  • Legal standard: Conditions must have changed to an extent that it is impossible to secure a substantial degree of the benefits intended by the promise. Changes practically destroy the essential objects and purposes of the agreement
152
Q

What indeterminacy does the changed conditions termination add to the law?

A
  • Favors those who have the resources to litigate
  • Reduces power of promisees
  • increases litigation
  • reduces reliability of promises
  • could drive parties to alternative transactions
153
Q

How much of US land is in land trusts?

A

56 million acres, approx. 1-3%

154
Q

According to Tobin, if a developer makes promises, can it be held to those promises?

A

Yes

Facts: Tobin, the buyer, had contractual expectation of no tennis court. Defendant developer did not fulfill that expectation. The developer was bound by his promise and had to pay Tobin damages. The neighboring buyer was not bound because there was no covenant, so no injunction was granted.

155
Q

Ute Park Summer Homes Assn.

A

Association represented homeowners against the developer.

Developer was enjoined not to sell certain areas without restrictions to recreational uses as indicated on promotional map (map served as promise).

156
Q

White Cypress Lakes (Miss. 1989)

A

Via advertising, developer promised buyers they would be surrounded by “quality.” RV park was not the kind of “quality” promised, so developer was equitably estopped.

157
Q

What standards might the developer be held to when exercising retained powers?

A
  • Fiduciary
  • Good faith and reasonableness
  • General purposes of the covenant scheme
158
Q

Duties of developer as fiduciary

A
  • Could not make decisions to the detriment of homeowners

- Could not use the association for his own benefit

159
Q

Duties of developer under a good faith and reasonableness standard

A

Indeterminate, but developer could probably use power to make decisions that it thinks benefit homeowners and that benefit the developer

160
Q

What are the pros and cons of architectural review by a developer?

A
  • Pros: Early buyers might count on developer to maintain the vision that the developer had sold to them
  • Cons: Developer might give up on concept in order to sell remaining lots OR developer might adhere to strictly to what they wanted rather than allow owners to control the environment
161
Q

What is a cooperative?

A

A corporation owns the land, shareholders own the corporation, corporation leases apartments to shareholder-residents, and corporation gets financing

162
Q

What is a condo association?

A

Residents own some space alone and some space in common with other residents, with each interest financed separately. The association enforces rules.

163
Q

What do HOAs and other common interest communities do?

A
  • Manage and maintain common areas, including exterior walls
  • Make improvements
  • Regulate exterior appearance, architectural review
  • Enforce regulations
  • Levy assessments
164
Q

What is an automatic association?

A

Every purchaser becomes a member and subject to the rules by accepting the deed

165
Q

Suits by homeowners or an association against developers (including the government) can be based on what?

A
  • Promises by developer (explicit and implicit)
  • Fraud by developer
  • Additional review of developer’s use of power under different standards
166
Q

What are grounds for owners to challenge association actions?

A
  • Breach of contract
  • Violation of covenants
  • Violation of state statutes (including those governing nonprofit corps., condos, and home associations)
  • Violation of state constitution
  • Violation of federal statute
  • Violation of federal constitution if state action
167
Q

How do courts tend to treat situations where the common interest community is merely enforcing the rules in the CCR?

A

Courts tend not to second guess the CIC

168
Q

How do courts tend to treat situations where the HOA follows procedural rules but imposes a new rule that was not in the CCR?

A

Judges are less deferential

169
Q

Business Judgment Rule

A

Conduct of a corporation (or in this case, a CIC) is improper if…

  • beyond scope of authority set out in covenants
  • has no legitimate relationship to the welfare of the cooperative
  • is taken without notice or consideration of relevant facts
  • deliberately singles out individuals for harmful treatment
170
Q

Is more or less deference given under a reasonableness standard than a business judgment standard?

A

Less deference

171
Q

Why should HOAs be reviewed under a different standard than cities?

A

HOAs might….

  • be more vindictive
  • Have inadequate process
  • fewer public watchdogs
172
Q

Town and Country Estates Ass’n v. Slater (Mont. 1987)

A
  • Facts: HOA denied approval of house plans, changed reason for denial from too cheap to “not harmonious.” Trial court found good faith
  • Holding: A restrictive covenant that fails to define the standard of approval is too vague to be enforceable. This particular covenant was vague to a degree that it denied substantive due process.
  • In the future, need greater specificity in CCRs.
173
Q

Is “harmony” an approved design standard for HOAs?

A

Louisiana: Yes
Montana: No, need more specificity

174
Q

What does the Restatement say about an association’s power to levy assessments?

A

The association should have the power to levy assessments if CCRs are silent on the issue

175
Q

Thiess

A
  • Majority voted to change ownership of washers and dryers, which augmented some condo parcels. New minority has to maintain their own washer/dryer while the majority’s are still maintained by the complex.
  • Holding: Under state law, association cannot change condo parcel. Assessments after collection are part of surplus, which is part of parcel. If you can’t change parcel, you also can’t change the assessments.
176
Q

How did Florida change its statutes regarding changes in condo ownership and assessments after Thiess?

A

Required unanimous consent for changes in percentage ownership or assessment (codifies Thiess)

177
Q

What is a Kaldor-Hicks improvement?

A

Where the benefits to society outweigh the costs

178
Q

Majority rule voting may…

A
  • Fail to register weak preferences
  • Undercount strong preferences
  • Overcount moderate preferences
179
Q

What are different possibilities for distributing association votes?

A
  • Each unit gets the same number of votes
  • Votes by square footage
  • Votes by value
180
Q

What is unique about Houston, TX?

A

No zoning

181
Q

What are two common components of planning?

A
  • Comprehensive plan, which is a macro view that plans major areas of the city
  • Zoning ordinance, which reflects the comprehensive plan but adds in a parcel by parcel approach
182
Q

When is voting in elections rational?

A

If voters have intertwined utility curves (they care enough about effects on others)

183
Q

How could zoning increase housing prices?

A
  • Increases cost of supplying housing

- Increases demand for housing

184
Q

Must zoning be consistent with the comprehensive plan?

A
  • 1/4 of states: Comprehensive plan has legal and political power
  • 3/4 of states: Not much legal power, mostly political power
185
Q

According to Hayek, complexity of important interests means we need

A

coordination by a price system

186
Q

What movement prompted city planning on a grand scale?

A

Burnham, Howe, and the City Beautiful Movement, which made plans for the “coordination of urban life in all its relationships”

187
Q

What efforts by the federal government contributed to zoning in the US?

A

The 1928 Standard City Planning Enabling Act and the 1954 requirement for a “program for community improvement” to get urban renewal funding

188
Q

What did Ebenezer Howard propose?

A

Reverse the flow of people to cities like London by creating “garden cities” that allowed living in harmony with nature.

189
Q

What are the characteristics of garden cities?

A
  • Self-sufficient
  • Limited size with surrounding green belt
  • Max 30k population
  • close-knit social life
  • Functions like industry, commerce, and housing separated
190
Q

What was the problem with Howard’s garden city proposal?

A

Underestimated population growth (and perhaps the efficiency of density)

191
Q

What did Jane Jacobs say about city planning?

A

The mixture of uses was essential to a city’s vitality because it kept people together around the clock and enhanced the sense of community

192
Q

What principles from Howard were carried on by the planning and zoning movement?

A
  1. Segregation of uses is desirable
  2. Wholesome housing is the central problem
  3. Open space is desirable
  4. Good planning protects against change
193
Q

What sort of limits might zoning impose?

A
  • Height
  • Area
  • Density
  • Uses
194
Q

Do multiple unrelated adults qualify as single-family residential use?

A
  • 7 college students: No (New York)

- Halfway house: Yes (Indiana)

195
Q

Do short-term rentals count as single-family residential use?

A
  • 5 rentals of less than 30 days: No in Indiana because rentals were for profit and not just to one family
  • Frequent rentals of 2 days to 2 weeks: Yes in Vermont
  • Weekly rentals in summer: Yes in New York
196
Q

What are traditional flexibility mechanisms with zoning?

A
  • Variance
  • Special exception
  • Map amendment/rezoning/zoning amendment

(intended to be administered by non-paid citizens, not professionals)

197
Q

What is a variance?

A

An exception for a specific owner’s use

198
Q

What is a special exception?

A

Uses identified in advance that can be in other zones, such as schools and churches in residential zones

199
Q

What are the modern flexibility mechanisms in zoning?

A
  • Planned unit development: defined in text but not on map until developer makes application showing specific site plan
  • Holding zone: often agriculture zone, expecting owners to make a request/petition/application for other use

(administered by planning professionals hired by the government)

200
Q

Compared to private owner/developers, public employees…

A
  • might have shorter time horizon
  • usually are less financially interested
  • are more inclined to consider externalities
201
Q

Why did cities hesitate to employ zoning?

A

It might be an unconstitutional taking without compensation or deprivation of property without due process

202
Q

Why was the Euclid case brought?

A

As a test designed to kill zoning. Opponents of zoning believed that the conservative Supreme Court would strike down zoning

203
Q

Euclid v. Ambler Realty

A
  • Facts: Euclid used cumulative zoning, and Ambler Realty land was put into U2, U3 and U6 zones. Ambler Realty suffered a loss of $10,000/acre for the land not zoned for industrial U6 use.
  • Challenge: 14th amendment challenged based on taking property and liberty without due process, sought injunction against enforcement
  • Holding: Zoning is constitutional
204
Q

Facial attack

A

Statute is unconstitutional on its face, not just as applied

205
Q

Why was zoning upheld in Euclid?

A

Segregation and planning of uses protects property values

206
Q

What test does the Court apply to the due process question in Euclid?

A

To be unconstitutional, the ordinance must be “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

207
Q

What are remedies for violation of zoning ordinances?

A
  • Often an injunction to comply (possibly requiring removal of building)
  • Some courts will balance the equities before enjoining
208
Q

Nectow v. City of Cambridge

A
  • Facts: Plaintiff had a contract for sale at $63,000 before zoning ordinance passed. Purchaser refused to buy after ZO, so Nectow sues for an injunction directing city inspector to approve permit.
  • Holding: Special master found that the districting of Nectow’s land did not promote health, safety, convenience, and general welfare of city inhabitants. City had a chance to fix the ordinance before an injunction issued.
209
Q

Why was Nectow’s substantive due process challenge not precluded by Euclid?

A

It was an as applied challenge, not a facial challenge to the zoning ordinance

210
Q

Coniston Corp. v. Village of Hoffman Estates

A
  • Facts: Village stopped owner from developing a 17-acre parcel into commercial office space.
  • Issue: Owner claims a section 1983 claim (violation of substantive and procedural due process)
  • Holding: A limited incursion into property rights is not a deprivation of property sufficient to trigger the due process clause.
211
Q

What are the procedural requirements for legislative and adjudicative actions?

A
  • Legislative action: no process required (a hearing is enough, a statement of reasons is not required)
  • Adjudicative action: the record must contain some rational basis for the decision.
212
Q

How can we tell if a decision is legislative?

A

If a legislative body has NOT adopted either substantive criteria or procedural requirements to bind itself, the decision is legislative rather than adjudicative.

213
Q

Is the denial of a building permit a deprivation of property under the 14th amendment?

A
  • Posner: No, this is a limited incursion
  • 7th and 3d Circuits: Property deprivation
  • Other circuits: No right to receive a land use permit unless there is a very strong likelihood the application would have been granted but for the denial of due process
214
Q

What is the substantive due process standard according to Posner?

A

For the ordinance to violate SDP, it must be “based on considerations that would violate specific constitutional guarantees” or “invidious or irrational”

215
Q

Twigg v. County of Will (Ill. 1994)

A
  • Facts: Illinois County refused to reverse earlier downzoning. Twigg wanted rezoning from minimum of 10 acres per house to 2.5 acres per house. Refusal resulted in 58% loss or 22% loss depending on how you count.
  • Standard applied: valid if restriction had “any substantial relationship to the public health, safety, morals, comfort, or general welfare” (The test varies a bit within the opinion.)
  • Holding: Law fails
216
Q

Cormier v. County of San Luis Obispo (Cal. 1984)

A

-Facts: California County downzoned from highway commercial (allowing planned motel-restaurant) to rural-residential (allowing restaurant with restricted use) resulting in 75% or greater loss.
-Standard applied: valid if restriction had “a real or substantial relationship to
the public health, safety, moral or general welfare” (and valid if fairly debatable)
-Holding: Law survives

217
Q

What does the casebook say makes the difference in outcomes in Twigg and Cormier?

A

Difference between activism and deference (IL gave less deference to local government).

218
Q

What does the “invidious or irrational” and “arbitrary and capricious” standard mean for SDP?

A

Not rationally related to a legitimate state interest

219
Q

What is a threshold test for zoning?

A

Looks for benefits to public and means that are rationally related to legitimate ends (CA in Cormier)

220
Q

What is a balancing test for zoning?

A

Look for benefits to public and compare to costs to owner (judges check balancing done by legislature, IL in Twigg)

221
Q

What is the Orthodox quartet of benefits from zoning?

A

Health, safety, morals, general welfare

222
Q

What does Nectow substitute for “morals” in the Orthodox quartet?

A

Convenience

223
Q

Is limiting competition a legitimate end of zoning?

A

Usually no. It can make the legislation invalid or simply be a factor in balancing

224
Q

Sprenger, Grubb, and Associates v. City of Hailey

A

Court does not decide whether protecting merchants from competition is not a legitimate end, but upholds downzoning from business to limited business that had other purposes besides protection of downtown businesses from competition.

In Short: The taint does not matter if there are legitimate goals.

225
Q

Island Silver and Spice Inc. v. Islamorada (11th Cir. 2008)

A
  • Facts: City ordinance said that formula restaurants are prohibited and formula retail stores are limited in total square footage and street level frontage. Island Silver had contracted to sell property to Walgreens.
  • Holding: Restriction is illegal because it violates dormant commerce clause. Effect is favoring in-state business, so elevated scrutiny
226
Q

Dormant Commerce Clause Analysis

A
  • If regulation directly regulates interstate commerce or has effect of favoring in-state interests, there is elevated scrutiny. Valid only if there is legitimate purpose that cannot be served by nondiscriminatory alternatives.
  • If regulation has only indirect effects on interstate commerce, must ask whether the government ends are legitimate and whether burden on interstate commerce clearly exceeds local benefits.
227
Q

Did the court in Islamorada say that preserving small town character is a legitimate purpose?

A

Yes, but the town had no small town character to preserve

228
Q

What is not a legitimate end for zoning (not within orthodox quartet)?

A
  • Singling someone out for punishment
  • discrimination against racial minorities or other ends that violate the Constitution
  • keeping out poor people
  • reducing land value to reduce costs of condemnation
  • increasing taxes
  • limiting competition (protectionist zoning)
229
Q

Can states be held liable under antitrust law for protectionist zoning?

A

No (Parker v. Brown)

230
Q

Can cities be held liable under antitrust law for protectionist zoning?

A

States can immunize cities. Cities must show:

  • state granted city power to regulate in this way AND
  • state granted city “authority to suppress competition”
231
Q

Can private actors be held liable under antitrust law for protectionist zoning?

A

They are not liable for petitioning government to engage in anticompetitive behavior, but they can be liable for petitioning private code writing organizations.

232
Q

Boise Cascade v. Gwinnette County (Ga. 1967)

A

Code required .5” plywood for roof decking and challenger showed that 3/8” plywood could be as strong as some 1/2”, so court found the requirement to be unreasonable and unenforceable.

233
Q

State v. Cook (Wa. 1967)

A

–Owner wanted to do his own plumbing work in a house he would lease. Snohomish County denied permit because he would not be living in the house.
–Owner challenged as violation of state and federal due process.
–Court held the requirement that the plumber be certified is reasonably related to the
public health and safety, and is a valid exercise of the police power, and not a violation of state or federal DP. The owner would be doing plumbing for others and requiring commercial plumbers to be licensed is reasonably related to health and safety.

234
Q

Layne v. Zoning Board of Adjustment (Pa. 1983)

A
  • Facts: Equal protection challenge to line drawing that allowed lodging houses (lodging without meals) for non-residents but not boarding houses (lodging with meals for non-residents)
  • Court says classification must bear a substantial relationship to health, safety, morals, or general welfare of community. This distinction did not violate equal protection
235
Q

Tyler v. College Park (Maryland 2010)

A

In an effort to force University of Maryland and private parties to build more student housing rather than convert existing single-family residences to student housing, rent control was applied to converted homes but not apartment buildings. This decreased revenue from conversions.

Maryland’s highest court upheld this difference in treatment.

236
Q

Are peninsulas/wavy lines typically found to be discriminatory line drawing?

A

Rarely found to be irrational or an abuse of discretion

237
Q

Are islands typically found to be discriminatory line drawing?

A

More likely than peninsulas (this is called spot zoning and can be found irrational)

238
Q

Village of Willowbrook v. Olech (S. Ct. 2000)

A
  • Facts: Olech and her husband wanted a connection to the municipal waste supply, and the village wanted a 33-ft easement instead of the usual 15-ft easement. Olech says this demand is based on ill will from a previous case.
  • Posner (7th Cir.): says they were intentionally treated differently, no rational basis for difference, village had “subjective ill will” toward plaintiff and ill will was but-for cause of difference in treatment.
  • S. Ct.: Affirms result, says the number of persons in a class does not matter
239
Q

Why did Posner advocate for two additional requirements for cases involving discrimination against a particular landowner?

A

To avoid turning lots of land use restrictions into equal protection cases.

240
Q

What are the elements for class of one equal protection suits?

A
  1. Intentionally treated differently
  2. No rational basis for the difference in treatment
    (Posner would impose two more requirements)
241
Q

How does Olech impact EP challenges?

A

There is some evidence that EP challenges are now more successful than before Olech.

242
Q

What is the source of takings doctrine?

A

5th Amendment, applied to states via 14th Amendment.

  • Traditional: due process clause
  • Thomas and others: privileges and immunities clause
243
Q

The government can take property only if BOTH

A
  1. The taking is for a public use

2. The government pays just compensation

244
Q

What is the Hawaii Housing Authority v. Midkiff standard for public purpose in takings?

A

“Rationally related to a conceivable public purpose.”

245
Q

What does Kelo v. City of New London say about public purpose in takings?

A
  • Public use includes condemnation for redevelopment of distressed area
  • Can’t take land for the purpose of conferring a private benefit on a private party (or taking under pretext of public purpose to bestow a private benefit)
246
Q

What is “just compensation” for takings?

A

Difference in fair market value of land before and after the government action

247
Q

What are the contexts in which the takings clause applies?

A
  • Condemnations

- Inverse condemnations

248
Q

Condemnation

A

Intentional exercise of the power of eminent domain

249
Q

Inverse condemnation

A

Unintentional exercise of the power of eminent domain, often attempted exercise of police power.

250
Q

Mugler v. Kansas

A
  • Facts: Legislative prohibition on use of land for making alcoholic beverages. Statute declared all such places to be nuisances and Mugler said this was a taking because it deprived him of most of the value of the realty.
  • Holding: Not a taking. Destruction of nuisances are not takings (or, more broadly: regulations are different than takings)
251
Q

What are the broad a narrow readings of Hadacheck v. Sebastian, where a statute banned brickmaking?

A

Broad: Regulation of land is not a taking
Narrow: Regulation of nuisance use is not a taking and legislature can declare existing use to be a nuisance and impose a criminal penalty

252
Q

Penn Coal v. Mahon

A
  • Facts: Mahon had a surface estate. Penn Coal had deed to coal under surface and support estate. Penn Coal intended to mine and notified Mahon of possibility of subsidence. Mahon sues under Kohler Act, which prohibited mining of coal causing subsidence within 150 feet of an “improvement” (such as a residential home).
  • Issue: Is exercise of police power a taking?
  • Holding: This was not a valid exercise of the police power; it is a taking. A regulation is a taking if it GOES TOO FAR
253
Q

Keystone Bituminous Coal Ass’n v. DeBenedictis (1987)

A
  • A case that challengers thought was extremely similar to Penn Coal, but ended up losing.
  • Owners did not show degree of loss.
  • Stake’s interpretation: Must show degree of loss rather than bringing a facial attack.
254
Q

Strickley v. Highland Boy Gold Mining Company (1906)

A

A public purpose or benefit suffices; condemn easement to allow private party to get gold to market

255
Q

Berman v. Parker (1954)

A

Clearing blighted area for redevelopment is a public use, even if the land taken isn’t blighted.

256
Q

How can you reconcile Penn Coal with Mugler and Hadacheck?

A
  • Legislative prohibitions of nuisances are not takings and legislature can declare existing uses to be nuisances, BUT
  • PA did not declare undermining a nuisance OR could not declare undermining a nuisance since it recognized a support estate.
257
Q

Miller v. Schoene (1928)

A

State can destroy red cedar trees near apple trees because the cedar trees harbor a fungus that harms the apple trees. State can destroy one class of property in order to save another which, in the eyes of the legislature, is of greater value to the public.

258
Q

Stop the Beach Renourishment v. Fla. Dept. of Environmental Protection

A
  • Facts: Florida drew an erosion control line in the sand, and owner challenged that statute took accreted land from owner. Florida S. Ct. approved statute, and owner claimed that Florida S. Ct. decision was a taking.
  • US S. Ct. said this is not a taking, but four justices say that judicial takings are possible.
259
Q

Rationales for requiring compensation

A
  • Efficiency of government decisions

- Fairness

260
Q

Fiscal illusion

A

Requiring government to pay makes government decisions more efficient (internalizes negative externalities). This assumes:

  1. Decision maker is self interested
  2. Negative externalities outweigh positive externalities
261
Q

Michelman’s efficiency analysis

A

Only compensate if D>S

S=administrative costs of a compensation system
D=demoralization costs from not compensating this kind of case

262
Q

Why is the compensation itself not included in Michelman’s efficiency analysis?

A

Because the compensation payment is just a transfer

263
Q

Epstein’s efficiency test

A

It is possible for government to grow the pie by reassigning property (via takings). Pie slices must stay the same shape, so the wealth of all persons should be expanded by the same proportion

264
Q

Why must the pie slices stay the same shape in Epstein’s efficiency test?

A
  • Reduces rent seeking (fighting over the same resource)

- Assures Pareto superior changes

265
Q

What is the social benefit of insurance?

A

Because of the declining marginal utility of wealth, disutility is minimized if losses are spread broadly

266
Q

What is the Armstrong principle?

A

Given that benefits of a taking accrue to the public, the costs should be borne by the public. Assumes that the taking is not a harmful use of the land.

267
Q

Enterprise-arbitrator theory

A

Old, no longer relevant theory
Government operates in two ways: as an enterprise or arbitrating disputes over land uses. In its arbitration role, no compensation is required, but in its enterprise role, compensation is required.

268
Q

Penn Central Transportation

A
  • Facts: NYC passed a landmark preservation law that was challenged by Penn Central, which wanted to build an office tower on top of Grand Central Station. These plans were denied by the NY historical commission
  • Holding: This regulation was not a taking
269
Q

2 ways to find a taking through inverse condemnation

A
  1. Legitimacy Analysis

2. Impact Analysis

270
Q

Legitimacy analysis for inverse condemnation

A

A regulation is a taking if it fails to substantially advance a legitimate state interest

271
Q

Impact analysis for inverse condemnation

A

3 factors:

  1. economic impact or degree of deprivation
  2. Extent to which the regulation has interfered with distinct investment-backed expectations
  3. Character of government action
272
Q

Per se takings (impact analysis)

A

Deprivation of a fundamental attribute of property based on character of government action

273
Q

Takings in fact (impact analysis)

A

Look at all three factors. Regulations that are considered takings if they go too far

274
Q

Is right to take possession and practical ability to do so a fundamental attribute of property in a per se takings analysis?

A

Yes, but temporary restraint is not a taking

275
Q

Is the right to alienate property a fundamental attribute of property in a per se takings analysis?

A

No (Andrus v. Allard)

276
Q

Is right to exclude a fundamental attribute of property in a per se takings analysis?

A

Loretto Telemprompter: Yes, a permanent physical occupation is a taking

277
Q

Is rent control a deprivation of the right to exclude?

A
  • Applied prospectively: No, just a price control

- Applied retroactively: Owner cannot evict tenatn

278
Q

Lucas v. South Carolina Coastal Council (1992)

A
  • Facts: Lucas owns two residential parcels on the ocean shore; state imposes new regulations that prevent him from building houses. Lucas argues that the regulation rendered his parcels valueless.
  • Holding: When the owner can no longer make economically viable use of his land (if there is zero value left after regulation), it constitutes a taking.
279
Q

What makes Lucas unique?

A

It is the first (and only case thus far) to hold that a regulation can be a per se taking

280
Q

In Lucas, did the state challenge that Lucas’s property was valueless?

A

No, they relied on the importance of their action in their argument

281
Q

Did Scalia recognize a harm-preventing defense in Lucas?

A

No, but he does recognize preventing a nuisance as a defense

282
Q

Preventing nuisance categorical defense to takings

A

A law that takes all economically beneficial uses of land must do no more than duplicate the result that could have been achieved in the courts.

283
Q

Can lawmakers consider science to find nuisances?

A

Yes, we learn things that can change what was once viewed as benign to being a nuisance (ex: radium on watch dials)

284
Q

Can the legislature define new nuisances?

A

Scalia in Lucas: Legislature can declare new nuisances only to the extent that the courts would declare new nuisances.

285
Q

What is the deprivation factor for the third Penn Central factor?

A

(FMV before regulation - FMV after regulation) / (FMV before regulation)

286
Q

What is the conceptual segmentation/starting parcel problem?

A

What is the set of rights before the regulation?

287
Q

Palazzolo v. Rhode Island (2001)

A

No geographic segmentation of lot is permitted (the starting parcel is not just the restricted land)
No total taking because upland portions of owner’s lot were still valuable.

288
Q

Tahoe-Sierra Preservation Council

A

No temporal segmentation (dividing the restricted time from the unrestricted time)
Landowner lost all rights to improve land for 32 months, but the S. Ct. held that there was no taking

289
Q

Murr v. Wisconsin (2017)

A

-Facts: Murr parents purchased Lot F in 1960 and in 1961 added a cabin, and transferred title to the family plumbing company. In 1963, the parents purchased neighboring Lot E, which they held in their own names. Combined, they have 0.98 acres buildable. Regulations in 1976 barred selling lots with less than one acre suitable for building. Substandard lots “in separate ownership from abutting lands” were
grandfathered, allowing building (and sale). But a merger provision prevented
grandfathering of adjacent lots under common ownership. In 1994 and 1995, parents transferred F and E to kids. Kids want to sell Lot E. Gov’t says no variance, the ordinance had merged E and F into one lot.
Issue: Murr children claim a taking of lot E.
-Holding: Starting parcel is E+F and there is no taking (affirming state courts)

290
Q

What new doctrine does Murr v. Wisconsin lay out for determining the starting parcel?

A

Look to the owner’s reasonable expectations

291
Q

Factors in owner’s reasonable expectation

A
  1. Treatment of land under state and local law (including whether the regulation has a legitimate purpose, whether the regulation is reasonable, and whether the regulation applies because of the conduct of the owner)
  2. Physical characteristics of landowner’s property (including location and whether the regulation was in effect when owner took possession)
  3. Value of property under the challenged regulation
292
Q

How did the mention of “complementary” goods get into the Murr decision?

A

It was a focus of oral argument/briefing

293
Q

What is the Cheese Shop Problem?

A

Owner knows what might be the most valuable use of land, but government knows what uses are allowed via regulation (owner is guy asking for cheese, government is the shop owner)

294
Q

Why does Roberts dissent in Murr?

A

He says the result of the majority’s decision is that the government’s regulatory interests will come into play twice rather than once.

295
Q

Monterey v. Del Monte Dunes

A

Repeated rejection of owner proposals can deprive owner of all economically viable use (per se taking)

296
Q

Passage of time problem (for determining value after regulation)

A

The regulation that once
increased the value of the lot later decreases the value of that remaining lot because others have relied on and complied with the regulation (guy who wants to build a gas station 20 years after zoning laws go into effect, and now his property is worth less as residential zoning because he has opportunity for gas station monopoly)

297
Q

Average reciprocity of advantage (value after regulation)

A

Regulation that restricts an owner might also restrict others in ways that increase the owner’s value (i.e. residential zoning imposed on a zone makes each lot more valuable)

298
Q

What is one solution to the passage of time problem?

A

Ask what the effect of the regulation was at the time that it was imposed or when it was first interpreted in an unpredictable way.

299
Q

Do TDRs reduce the loss or provide compensation?

A

Penn Central says that TDRs mitigate the loss, so the owner has not suffered a loss that goes too far.

*Later case suggests in dicta that this only works if rights augment the same owner’s land

300
Q

Even if no remaining value, no compensation is required if government is…

A
  • blowing up a house to stop a fire
  • destroying cedar trees to save apple trees
  • seizing property used in commission of crimes
  • regulating navigable waters of the USA
  • enforcing a generally applicable criminal law
  • preventing a nuisance under existing law
301
Q

According to the majority in Palazzolo, is coming to the taking a defense?

A

No, it is not a defense. B can still bring the takings case even though A owned land when the restriction was implemented.

302
Q

What is the effect of Lingle v. Chevron?

A

Legitimacy branch of inverse condemnations makes no sense and duplicates SDP (so it is all or mostly dead). “Substantially advances” is not a valid formula to determine a taking.

303
Q

What are potential solutions when owner improvements to private land generate negative externalities?

A
  • Ban private improvements

- Require owner to pay an exaction for the permit to internalize externalities

304
Q

What is an exaction

A

State says “trade your property for our permission”

305
Q

Exactions Generally

A

development creates externalizes. for efficiency the government could impose a fee in the amount of the negative externalizes. it is an exaction when the gov asks for an owner to give property in return for the government giving permission. government often asks for less than full mitigation or full internalization.

306
Q

Problems with Exactions

A
  • exaction is actually a bribe
  • exaction is payable only by the rich
  • exaction is too high, owner bearing burden the public should bear
307
Q

What are some state standards for approving exactions?

A

If burden case on owner is…

  • specifically and uniquely attributable to his activity
  • is reasonably attributable to his activity
  • in return for reducing open space
308
Q

How can exactions be a problem if the government has the power to impose a total ban on an activity?

A
  • Government might abuse regulatory process, regulating when it did not really want to regulate and just wants to get land or other resources
  • Government charges too much (going beyond negative externalities)
309
Q

Nollan v. California Coastal Commission (1987)

A
  • Facts: Nollans seek to redevelop their beachfront property. Commission tries to get around paying for easements by getting an exaction for public access in exchange for the permits.
  • Majority holding: If California wants an easement across Nollans’ property, the state must pay for it
310
Q

Nexus test from Nollan

A
  1. What is purpose of regulation?
  2. What purpose is served by the exaction?
  3. Do the regulation and the exaction serve the same purpose?
    * If no, then unconstitutional
311
Q

If legitimacy test is gone, what else can Nollan doctrine be based on?

A

Unconstitutional conditions doctrine.

312
Q

Unconstitutional conditions doctrine

A

The government cannot put conditions on the exercise of constitutional rights

313
Q

Is the Nollan test over- or under-inclusive?

A

Overinclusive. It identifies abuse of regulatory power in some cases that are not abuse, but where the government was just trying to find a superior alternative to saying “NO”

314
Q

Dolan v. City of Tigard

A

-Facts: Dolan wanted to expand her store, so she sought a permit to put up a parking lot. Tigard wanted a portion of her property for flood control and traffic improvements.

315
Q

Could Tigard have simply taken the land or an easement it wanted without paying?

A

No, but they could have just denied the permit

316
Q

Dolan rough proportionality test

A

The city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.

317
Q

In Dolan, what was wrong with the required dedication of property along the creek for a public greenway?

A

Tigard does not need to own the land to fix the problem–a private greenway or conservation easement would have worked. Here, the city asked for too much.

318
Q

In Dolan, what was wrong with the demand for dedication of a hike and bike trail?

A

Here, the city asked for something that would accomplish too little mitigation. There was a finding that the trail could offset some of the traffic demand, but no finding that it would necessarily do so.

319
Q

What sort of standard is the Dolan rough proportionality test?

A

Goldilocks standard–city can’t ask for too much or too little.

320
Q

Do Nollan and Dolan apply when the exaction is cash?

A

Yes (see Eastern Enterprises v Apfel)

321
Q

Do Nollan and Dolan apply to the denial of a permit?

A

Yes (under Koontz)

322
Q

Where do Nollan and Dolan apply?

A

Only in exactions

323
Q

Koontz v. St. Johns River Water Management District (2013)

A
  • Facts: Koontz wants to develop 3.7 acres of his land and needed a permit because it fell under wetlands protection in Florida. He offered to make the rest of his land a conservation easement. The district offered:
  • Develop only one acre and make the rest a conservation easement
  • Develop 3.7 acres and hire contractors to improve other wetlands in the district
  • Florida S. Ct. said no violation of exactions limits
  • US S. Ct. said denial of permit does not prevent Nollan-Dolan review. Majority says fees can trigger Nollan-Dolan
324
Q

Koontz additions! Nollan and Dolan…

A
  • Apply to exactions whether a permit is granted or denied
  • Apply when the exaction is cash
  • Can result in damages for a taking if a state court imposes damages
325
Q

What were the options in Koontz

A

1) 1-acre permit = 2.7 acre-easement = good
2) 3.7 acre-permit = $ to be spent improving public lands = bad

326
Q

Alito in Koontz

A

Alito in Koontz says to compare the options the government gives. if one option is good that is good enough

327
Q

Does a cash impact fee, for an exaction, internalize externalizes thereby creating efficient incentives for the owner?

A

yes,according to pigou

328
Q

do cash exactions mitigate the externalizes felt by neighbors?

A

probably not (so cash impact fee is fair and efficient for owner but not for neighbors)

329
Q

What is the difference between a property tax and a taking?

A

court does not say. we do not know where to draw this line.

330
Q

Did the monetary payment in Koontz fail nollan-dolan?

A

Yes, even though it looks like it should have passed nollan dolan, the appeals court does not address this finding of the trial court.

331
Q

What is Nancy Reagan’s advice to governments with permit applications?

A

JUST SAY NO

332
Q

What is intentional behavior in a nuisance per accidens analysis?

A

When D acts for the purpose of causing the interference or knows that interference is likely to result from harm

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