Final Exam

Question 1

In re Jacobs (1885)

Answer 1

Nuisance & Rationality of Laws

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

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

Question 2

Sic Utere (tuo ut alienum non laedas)

Answer 2

Basis of Nuisance Law

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

Question 3

Gilbert v. Showerman (1871 Michigan)

Answer 3

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

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

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

Question 4

Primitive Land Use Planning
Judicial Regulation by Nuisance
5 Cases

Answer 4

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

Question 5

Consistency Doctrine

3 Aspects & 3 Cases

Answer 5

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

Question 6

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

Answer 6

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

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

Question 7

Consistency Doctrine

4 Aspects

Answer 7

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

Question 8

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

Answer 8

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

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

Dissent rejects motel discrimination (lawful business).

Question 9

Manalapan v. Township
4 Points (Facts & Rationale)

Answer 9

Home Depot/Big Box Stores Regulation

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

Question 10

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

Answer 10

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

Question 11

Non-Conforming Uses

Justification, Nature, Expiration

Answer 11

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

Question 12

Golden v. Board of Ramapo

2 Features

Answer 12

Phased/Controlled Growth Case Upheld

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

Question 13

Zoning Estoppel vs. Vested Rights

Definitional Distinction

Answer 13

Estoppel: Focused on Actions of Zoning Authority

Rights: Focused on Developer, Reliance Based

Question 14

Limitations on Zoning, Estoppel, and Vested Rights

Answer 14

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

Question 15

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

Answer 15

Ouster or Appropriation

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

Exception: Exactions (Nollan & Dolan)

Question 16

Takings: Exactions

2 Prong Test for Exception

Answer 16

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

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

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

Question 17

Takings: Exactions

2 Case Studies

Answer 17

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

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

Question 18

Takings: Regulatory Takings

2 Cases & 3 Part Test & Note

Answer 18

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

Penn Central Balancing for Regulatory Takings

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

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

Question 19

Takings: Landowner’s Two Options (& Cases)

Answer 19

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

Question 20

Takings: Irrefutable Takings

2 Categories & 3 Cases

Answer 20

1. Ouster: Permanent Physical Invasion
   - Loretto (Cable Boxes on Apartments)
2. Total Deprivation of Economically Beneficial Use
   - Lucas (Isle of Palms RESIDENCE Prohibited): Signaled POSSIBLE Recovery for LESS THAN 100% Deprivation
   - Palazzo (Beach Club on Wetlands): 97.5% Loss (92% Loss in Hatacheck (Bricks)) Not a Total Deprivation (Residential Use Remains)

Question 21

Takings: Issues with Total Deprivation
2 Cases (Contrast)

Answer 21

1. Temporary Takings = COMPENSIBLE
   - First Evangelical (Religious Summer Camp’s Development Bar after Fire = Taking)
2. Administrative Delays = Non-Compensible
   - Tahoe-Sierra (Multi-Year Development Moratorium for Lake - Prevents Bad Public Policy)

Question 22

Limitations of Eminent Domains

Principal Prohibition & 3 Exceptions

Answer 22

Excess Condemnation Prohibition

• Must have an IMMEDIATE (near future) plan to use land.
• Cannot purchase land for speculative purposes.

1. Remnant Theory Exception (Acceptable Where Applicable) More effective to take remaining sliver of land (even if unused in project).
   - First Fidelity Bank (Disproportionate Value Case)
2. Recoupment Theory Exception (Typically Impermissible): Selling Surplus Land to Finance Project
3. Protective Theory Exception (Ambiguous Efficacy): Condemnation to Protect Main Focus of Area (e.g., adjacent park area to protect park habitat).

Question 23

Tri-Force of Governmental Powers

Answer 23

1. Police Powers
2. Taxing Powers
3. Eminent Domain Powers

Question 24

Kelo v. City of New London

Answer 24

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

• 5th Amendment Floor (States May Expand Protection)
• Purportedly NOT to Elicit a Developer (Pfizer - however, White Knight necessary for project to get off ground…).
• Non-Blighted Homes

Question 25

Eminent Domain: Hathcock | 3 Private Holdings = Public Use

Answer 25

``` Economic Development (Tax and General Benefit = Insufficient -Reverses Poletown v. Detroit ``` 1. Public Necessity of the Extreme Sort Requires Collective Action (Railroads) 2. Public Oversight Post-Transfer (Co/Ownership or Heavy Regulation) (Utilities) 3. Facts of Independent Significance (Self-Executing Purposes (Bermann, Midkiff, Miller v. Schoene (Cedar Rust))

Question 26

SWIDA v. National City Environmental

Answer 26

Prior Use of ED Power for Gateway Speedway. - Gateway seeks to expand and calls upon SWIDA to use ED Power to acquire neighboring land (hardly any negotiations, no private deal) - Gateway paid its fee for use of ED Power to condemn neighbor's land. Court sees primary benefit falling on Gateway, rather than the public. Rejects safety argument. Not a Public Use. Gas Station & Car Wash Analogy

Question 27

Public Purpose Factors | 8 General Characteristics

Answer 27

1. Payment to Use 2. Titleholder (Private/Public) 3. Private Profit, Non-Profit, or Public Purposes 4. End Use Provides Needed Public Service 5. Control Retained by Condemning Authority 6. Most to Gain 7. Private Developers = Driving Force in Redevelopment 8. True Slum/Blight for Removal

Question 28

Constitutional Considerations

Answer 28

1. Free Speech 2. Equal Protection 3. Discrimination

Question 29

First Amendment Cases | 2 Cases & Facts

Answer 29

1. Marks (Palmistry): First Amendment Issues & Inadequate Due Process Considerations -Limited/Inadequate Record Suggested Improper RELIGIOUS Motivation -City Council succumbs to public pressure. =Inappropriate Regulation/Zoning 2. City of Renton v. Playtime Theatres (Adult Theaters): First Amendment -Regulation Focused on Secondary Effects (NOT Content of Speech) -Regulation limited, but did not prohibit (only 5% Available and was already occupied). -Reliance on other cities' data = appropriate (Moratorium & Administrative Delay = Alternative Option) -Need only provide OPPORTUNITY =Appropriate Regulation

Question 30

Equal Protection: | Class of One

Answer 30

Olech (33ft vs. 18ft Easements): Equal Protection, Class of One - Traditional Equal Protection Clause (33 ft vs. 18 ft) would be sufficient to raise claim. Majority doesn't resort to Illegitimate Animus (arising out of prior law`suit against City). - Concurring Opinion: Vindictive Action or Illegitimate Animus = Inappropriate, Arbitrary, Capricious

Question 31

Belle Terre v. Boraas

Answer 31

College Rentals & Defining Family - Upheld as Rationally Related (Traffic, Quiet, Character of Neighborhood) - Rejected Association Argument (Entertainment = Possible) Dissent: Not Narrowly Tailored, Unconstitutional Intrusions

Question 32

Equal Protection: Class of People

Answer 32

Cleburne Living Center: (Mental Handicap Home) - Denied SUP in area where similar uses were permitted. - City argued flood plains, children teasing, and negative opinions... - NOT RATIONALLY RELATED - Court finds SUP required BECAUSE of retardation - no evidence that they different (Lack of Equal Protection)

Question 33

Equal Protection: Historic Districts

Answer 33

3. ASP Associates v. Raleigh: (Historical District) - Aesthetic Zoning = Permissible (Cultural, Economic, Etc. Values) - Exclusion for a modern medical building, but denial for exemption for ASP. - Similar Location =/= Similar SITUATION - Historic Overlay = Acceptable

Question 34

Equal Protection: Aesthetics

Answer 34

Court upholds a denial of building permit for a modern house in a traditional neighborhood - No Economic Decline Detectable - Seems to be Pure Aesthetics (Court cites to inadequate height of house, though) - Court relies on separation of uses (house good elsewhere).

Question 35

Right to Farm | 4 Features

Answer 35

1. Provide Standards (GAMPS) to Insulate from Nuisance Suits (Conflict Resolution) 2. Encourage Cultivation 3. Land Preservation 4. Transferability of Rights

Question 36

GAAMPS

Answer 36

Generally Accepted Agricultural & Management Practices - Protect from Nuisance Suits by Providing Approved Practices - Preempts Local Legislation

Question 37

Community & Economic Development Tools | 6 Financing Mechanisms

Answer 37

1. Community Development Block Grants (CDBG) 2. Section 108 Loans 3. Tac Increment Financing (TIF) 4. Tax Abatements 5. Michigan Incentives: Signature Building Acquisition 6. Michigan Incentives: Direct Business Assistance