Zoning and more! Flashcards
What are the elements of nuisance?
(1) Intentional
(2) Nontrespassory
(3) Unreasonable
(4) Substantial interference
(5) Effects use and enjoyment of land
What does it mean for a nuisance to be intentional?
(1) Defendnat acts for the purpose of causing harm
or;
Knows that the harm resulting is substantially certain
What does it mean for a nuisance claim to be nontrespassory?
(1) Intrusion is non physical such as
(2) Odor, noise, Light, Vibrations
What does it mean for a nuisance to be unreasonable?
(1) Majority Rule: Gravity of the harm outweighs the utility of the conduct
(2) Minority Rule: Conduct that causes substantial harm
What does it mean for a nuisance to substantially interfere?
(1) Invasion must be real and appreciable
(2) upon a plaintiffs interests
(3) Which is more than “slight inconvinience” or “Petty annoyance”
What does it mean for conduct to affect use and enjoyment of land?
(1) Affects use of enjoyment of land in a manner such as
(2) Damage to the property
(3) Personal injury to the occupants
What are the gravity of harm factors?
(1) Extent of the harm involved
(2) The character of the harm involved
(3) social value that the law attaches to the use invaded
(4) suitability of the use invaded to the character of the locality
(5) Burden on the person avoiding the harm
What are the Utility of conduct factors?
(1) social value that the law attaches to the primary purpose of the conduct
(2) Suitability of the conduct to the character of the locality
(3) the impracticability of preventing/avoiding the invasion
What is the Euclid test?
(1) An ordinance violates the Due Process Clause
if
(2) the provisions are clearly arbitrary and unreasonable
(3) have no substantial relation to
(i) public health
(ii) safety
(iii) morals
(iv) general welfare
Who has the burden of proof for zoning ordinances?
(1) A zoning ordinance is presumed constitutional
(2) So the party attacking the ordinance has the burden of proof
Give three theories of property
(1) Locke labor theory
(2) Bentham utilitarian theory
(3) Hegel personhood theory
What are the four rights in the “Bundle of Sticks”
(1) Right to transfer
(2) Right to exclude
(3) Right to use
(4) Right to Destroy
Can body parts be sold?
Generally, no - Look to ‘Moore’
What are the elements of adverse possession?
(1) Actual Possession
(2) Exclusive possesstion
(3) Open and notorious possession
(4) Adverse and hostile possession
(5) Continuous possession
What does it meant for AP possession to be actual?
(1) Claimaint physically uses the land in a same manner as a reasonable owner
What does it mean for AP to be exclusive?
(1) Possession cannot be shared with the owner or public
(2) Ask if “one’s use precluded the other’s”
What does it mean for AP to be open and notorious?
(1) Possession must be visible and obvious such that
(2) an owner who made a reasonable inspection would become aware of the adverse claim
What does it mean for AP to be Adverse and Hostile?
(1) Majority: ignores claimaints state of mind
(2) Minorty: Requires good faith
(3) Very few: Requires bad faith
What does it mean for AP to be continuous?
(1) Posession must be as continuous as a reasonable owners possession would be
(2) For a statutory period most commonly 10-20 years
What are two rationales for adverse possession?
(1)Correcting title defects
(2) Protecting personhood - land used for a long time “becomes part of your being”
Verticleness; English common law, What is the historic common law rule?
“Owners property rights extend from the center of the earth to the heavens.”
Verticleness; 3 Zones approach, What case explains this one?
Causby
Causby Facts
(1) Causby had a farm next to a military airport
(2) The airport had to fly through his property boundaries at ~ 83 feet
(3) Flight noise killed his chickens and disturbed him
Verticleness; 3 Zones approach, explain it
There are 3 zones of airspace
(High) Public Highway
(Mid) A taking if intrusion is:
(1) Immediate
(2) Direct
(3) Subtracts from the owners enjoyment
and;
(4) Limits owners exploitation
(Low) Obviously a taking
Finally (5) It is not obvious where each zone starts and ends.
