1
Q
What leads to conflicts in land uses?
A
Proximity
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
3
Q
How is the US population increasing?
A
Not from fertility; from immigration and increasing lifespan
4
Q
What percentage of the US population lives in metro areas of more than 50k people?
A
84%
5
Q
Are speculators the same as gamblers?
A
From their perspective, yes. From society’s perspective, no–they just transfer risk like insurance
6
Q
Where did most foreclosures occur in 2008?
A
The outer ring of the suburbs
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.
8
Q
What does the consequentialist perspective applied to land use law ask?
A
How we might make the most of our land resources.
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
10
Q
What are public goods?
A
Consumption is non-rivalrous and non-excludable
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
12
Q
What is utility/subjective wellbeing?
A
Includes happiness, fulfillment, and human flourishment
Correlates with some measures of quality of life
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
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.
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)
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
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.
18
Q
What are externalities?
A
Effects on others not within the actors self interest
19
Q
What can internalize externalities?
A
Sympathy, social coordination & social norms (Lin Ostrom), regulations, taxes or subsidies, Coasean bargaining
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
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
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
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)
24
Q
Are cities included in the state government?
A
They are separate governments from their state government but get power from the state.
25
What powers do cities have regarding surrounding land?
Cities can annex surrounding land.
- some states allow residents in the fringe to veto
- residents may incorporate a new city to avoid annexation
26
Dillon's Rule
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
27
How is city power limited?
- City charter
- State procedural requirements
- Specific state grants of authority that imply lack of other authority
28
Unlimited domain legislative power
Cities can adopt any rules not prohibited by law
29
Limited domain legislative power
Cities can adopt rules that relate to municipal or local affairs
30
What does Samuelson say about public goods?
No decentralized pricing mechanism (including the free market) can determine the optimal consumption of public goods.
31
Do local governments make efficient decisions?
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.
32
What is Fischel's homevoter hypothesis?
We can understand local voting by the expected effect on home prices which homeowners feel (no matter whether they stay or sell)
33
What are the types of legal analysis?
- Descriptive (positive): What is (how do decision makers behave?)
- Prescriptive (normative): What ought to be (how should decision makers behave)
34
Are descriptive and prescriptive legal analyses the same?
No! Is is is; is is not ought
35
Private nuisance
Unreasonable interference with use or enjoyment of land
36
Public nuisance
Does not require interference with use and enjoyment of land, just the lives of a considerable number of persons
37
What are the two types of private nuisance?
Nuisance per se and nuisance per accidens
38
Nuisance per se
A form of private nuisance...
- designated by statute
- illegal activities
- some activities that have been repeatedly declared a nuisance
39
Nuisance per accidens
A form of private nuisance...
- Nuisance in fact, considering all circumstances
- Location or method of construction or operation
- Two types
40
What are the two types of nuisance per accidens?
Negligent and intentional
41
What is the negligent form of nuisance per accidens?
- Negligent behavior, or worse (reckless, wanton, or unusually hazardous)
- In this context, negligence means creating an unreasonable risk
42
What is an unreasonable risk?
- 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
43
What are the expected harms in a negligent nuisance analysis?
The costs to P and others if D does not change behavior
| -Likelihood x magnitude
44
What is the magnitude of harm in a negligent nuisance analysis?
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.
45
Does payroll get counted in the costs of stopping operations?
Not the entire payroll, only the gain (pay minus reservation price)
46
What are the expected benefits of D continuing operation?
The loss if the defendant is stopped (lowest cost combination of D moving, mitigating, and stopping operation)
47
When is there a negligent nuisance?
When D's conduct is unreasonable under the circumstances (harms>benefits)
48
In Rose v. Chaikin, is the windmill determined to be a nuisance?
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.
49
When is nuisance per accidens intentional?
- D's action is intentional and unreasonable
| - Harm to P is substantial and unreasonable
50
Middlesex Co. v. McCue
- 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
51
Abnormal vs. Subnormal behavior
Abnormal - different kind of use than usual neighbor
| Subnormal - more harm than usual neighbor would cause
52
Does Holmes take an abnormal or subnormal approach in Middlesex?
- Notes that cultivating land is not abnormal
| - "Questions of degrees" indicates subnormal approach
53
Can D also be liable for activities of other humans on D's land?
Yes
54
Can D be liable for leaving his property in its natural state?
Yes, in some jurisdictions, you can be liable for nuisance if you allow nature to take over your yard.
55
Are governmental activities immune to nuisance claims?
- Likely immune to injunction
- Possibly immune to damages
- Not immune to both unless sovereign immunity was not waived
56
What do right to farm statutes do?
Protect farming against some nuisance suits in some states. This effectively subsidizes farming
57
What are positive externalities associated with protecting farming?
- lower cost of food
- cultural identity
- dislocation costs
- national security, defense
58
Are spite fences considered nuisances?
- Traditionally: NO
| - Modern doctrine: A fence can be a nuisance if it is (1) constructed for malice and (2) lacks utility
59
How do we determine what is unreasonable?
D's interference must be offensive to an average neighbor of normal sensibilities
60
Is interference with sunlight a nuisance?
- 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
61
Doctrine of Ancient Lights
- 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.
62
Are visual blights considered nuisances?
- Traditional view: not a nuisance
| - Junk vehicle collection enjoined in VA in 1982
63
Falloon v. Shilling
- 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
64
How is interference with airflow treated?
Same as sunlight
65
Anticipatory nuisance
-Suit is premature if harm has not started. Most courts say to come back when there is actually a problem
66
Is coming to the nuisance a bar to suit?
- 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
67
Is coming to the nuisance a factor in a suit for an injunction?
Kellogg v. Village of Viola & Restatement say yes
68
Is coming to the nuisance a factor in an action for damages?
- Restatement: Yes
| - Kellogg v. Village of Viola: No
69
What are efficiency costs if P cannot sue for loss of uses before making improvements?
- Race to invest (so investments are premature)
- D overinvests
- D fails to start up in a location that would be suitable for longer
70
What does Ampitheatres, Inc. v. Portland Meadows say about abnormally sensitive plaintiffs?
A man cannot increase the nuisance liabilities of his neighbor by applying his property to a special and delicate use.
71
What is the traditional nuisance remedy?
Injunction
72
What were the facts in Boomer v. Atlantic Cement, and why was injunction not a proper remedy?
- 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
73
What would Coase Theorem say to do in Boomer?
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)
74
What is the modern approach to injunctions for nuisances?
Balance the equities before granting an injunction
75
Can estoppel be a defense to nuisance?
Yes
76
Can implied consent be a defense to nuisance?
Yes
77
Can prescription be a defense to nuisance?
Usually no
78
How do you calculate damages for nuisance? Liability rule from Boomer v. Atlantic Cement
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
79
Do damages include emotional and subjective harm from nuisance?
Yes, for the buyer of the term or fee, but perhaps not for the plaintiff
80
What might be the problem with temporary damages?
- If too high, acts as injunction
- If too low, there is still too much production
- might not be subtle enough
81
What was the remedy in Spur Industries v. Del Webb?
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
82
What are the possible approaches to remedies after finding a nuisance?
- 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)
83
What does SD law say about self help as a nuisance remedy?
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)
84
Who can bring a public nuisance claim?
- 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.
85
Reimbursement
- 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
86
Detroit Baseball Club v. Deppert
- 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
87
What was the result in Ulmer, a case where P drained a quarry and ended up also draining D's quarry and sued D?
D pays P nothing
88
Hoffman v. Clark
- 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
89
How do tax breaks for homeownership relate to total spending by HUD?
The tax breaks exceed total spending
90
What are tax breaks for residential land use?
- 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
91
Does homeownership influence political behavior?
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.
92
What are beneficial externalities of homeownership?
- 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
93
What are the negative effects of housing subsidies?
- Raises other taxes
- Reduces government programs
- Increases deficit
94
Who benefits most from the federal housing subsidies?
The wealthy, while those with the lowest income face the most severe housing cost burdens
95
What is a servitude?
Private actors enforce rules that are set mostly by private parties. The contract can extend beyond the person who wrote it
96
Contract requirements for servitude
- Capacity to contract
- Consideration
- Compliance with statute of frauds (writing, signed by person against whom it is being enforced)
97
When will a servitude not be enforced under contract law principles?
- Fraud
- Duress
- Unconscionability
- Violation of public policy (such as promises to use for criminal activities or racial restrictions)
98
Two ways to find state action by a private actor
- 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
99
Shelley v. Kraemer (race discrimination and state action)
Violation of equal protection clause for court to enforce a racially restrictive covenant (race discrimination increases chance of finding state action)
100
Girard v. 94th St and Fifth Ave. Corp. (discrimination in covenants)
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.
101
Federal statutory limitations on covenants
- Antitrust laws
- Civil Rights Act of 1866
- Fair Housing Act
102
What did the Civil Rights Act of 1866 do?
Prohibited refusals to rent or sell based on race.
103
What did Fair Housing Act of 1968 do?
Prohibits refusals to rent or sell base don race, color, national origin, sex, familial status, and handicap.
104
Are disparate impact (statistical) claims cognizable under the Fair Housing Act of 1968?
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.
105
What have Indiana appellate courts said about covenant restrictions on rental of units?
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
106
The Fair Housing Act of 1968 prohibits religious restrictions with what exception?
Religious associations can limit their rentals and sales to their own members
107
What statutory limitations on servitudes have been imposed by states?
- Age restrictions
- Speech restrictions
- Sexual preference or orientation
- Religious restrictions
108
What is a Pareto superior change?
No one is worse off in the new world and someone is better off.
109
What is Pareto optimality?
When there is no world that is Pareto superior to the current world.
110
Nahrstedt (CA)
- 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
111
When might judicial invalidation of a covenant be efficient?
- 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.
112
Common law property limitations with servitudes
Enforceable unless it amounts to a restraint on alienation, no other limitations
113
Does Stake think the Restatement 3d changed the common law rule on servitude limitations?
Yes
114
Restatement 3d on servitude limitations
Enforceable unless it violates public policy:
- arbitrary, spiteful, or capricious
- unreasonably restrains trade or competition
- unreasonably burdens fundamental constitutional rights
115
What are the general efficiency consequences of adding an unreasonableness standard?
- Generates litigation
- If retroactive, generates uncertainty
- Prospectively, generates avoidance behaviors
116
What are the two doctrinal grounds for enforcing a covenant?
- Real covenant (running with the land)
| - Equitable servitude (equitable restriction)
117
What does the Restatement of Property do with real covenants and equitable servitudes?
Combines them along with easements into one "servitude"
118
How to create servitudes under the Restatement 3d?
Covenants: neither prescription nor implication
Equitable servitudes: Implication
Easements: prescription and implication
119
To what parcel does the benefit attach?
If appurtenant, is attached to the dominant parcel (owned by CE)
If not appurtenant, is held in gross.
120
To what parcel does the burden attach?
The servient parcel (owned by CR)
121
Real covenant elements
- Intent
- Horizontal privity (no defenders of this element)
- Vertical privity
- Notice
- Touch and concern
122
Horizontal privity Burden & benefit
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
123
What are the asymmetrical results from the horizontal privity requirement?
Buyer from one can get damages for neighbor breach but not have to pay damages for the same breach by himself.
124
What is vertical privity?
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.
125
Vertical privity burden & benefit
- 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)
126
What is Stake's analogy for vertical privity?
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.
127
Recording Act requirements for notice burden in covenants
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.
128
How to protect your interest in a real covenant?
Record it
129
Stake's efficiency approach to touch and concern
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)
130
Eagle Enterprises v. Gross
- 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
131
Neponsit
- Promise: Owner will pay home association dues
| - This is a promise to pay money, but HOA dues touch and concern the land.
132
Promises that do not touch and concern
- Promise to pay money (other than association dues)
| - Promise not to compete
133
Is notice needed for benefit to run?
No
134
What is the purpose of the touch and concern doctrine?
To keep promises unrelated to land from burdening land and clogging up land transfers.
135
What is the R3d approach to touch and concern?
Superseded with a public policy limitation
136
What are the differences between touch and concern and the R3d approach?
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
What does Stake think about the RS3d's approach to touch and concern?
Does not like it at all
138
The traditional remedy for breach of a real covenant is...
Damages
139
The most common remedy for equitable servitudes is...
-Specific performance of positive covenant and injunction for negative covenant
Why? Land is unique so damages are inadequate
140
Equitable servitude differences from real covenants (Tulk v. Moxhay)
- 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
Impact of vertical privity in equitable servitudes
Because there is no vertical privity, the covenantee could get an injunction against the tenant to prevent future violations of the promise
142
What does the Board of Directors for a common interest community do?
Manages common areas, collects assessments, and levies fines (or delegates authority to do this)
143
How many people in the US today live in common interest communities?
70 million
144
Do all jurisdictions accept the common plan doctrine?
No, at least three states have rejected it.
145
Common plan doctrine
- 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
What does the common plan doctrine allow the court to do?
Imply an equitable restriction (reciprocal negative easement)
147
What is the common plan doctrine limited to?
Restrictions
148
If the common plan doctrine is adopted, how will subsequent buyers protect themselves against the burdens of unwanted servitudes?
- 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
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?
- Check deeds to nearby parcels to make sure restriction is included
- Insist that developers record restrictions binding remaining parcels
150
How can servitudes be terminated?
- 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
Cordogan v. Union National Bank of Elgin
- 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
What indeterminacy does the changed conditions termination add to the law?
- 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
How much of US land is in land trusts?
56 million acres, approx. 1-3%
154
According to Tobin, if a developer makes promises, can it be held to those promises?
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
Ute Park Summer Homes Assn.
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
White Cypress Lakes (Miss. 1989)
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
What standards might the developer be held to when exercising retained powers?
- Fiduciary
- Good faith and reasonableness
- General purposes of the covenant scheme
158
Duties of developer as fiduciary
- Could not make decisions to the detriment of homeowners
| - Could not use the association for his own benefit
159
Duties of developer under a good faith and reasonableness standard
Indeterminate, but developer could probably use power to make decisions that it thinks benefit homeowners and that benefit the developer
160
What are the pros and cons of architectural review by a developer?
- 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
What is a cooperative?
A corporation owns the land, shareholders own the corporation, corporation leases apartments to shareholder-residents, and corporation gets financing
162
What is a condo association?
Residents own some space alone and some space in common with other residents, with each interest financed separately. The association enforces rules.
163
What do HOAs and other common interest communities do?
- Manage and maintain common areas, including exterior walls
- Make improvements
- Regulate exterior appearance, architectural review
- Enforce regulations
- Levy assessments
164
What is an automatic association?
Every purchaser becomes a member and subject to the rules by accepting the deed
165
Suits by homeowners or an association against developers (including the government) can be based on what?
- Promises by developer (explicit and implicit)
- Fraud by developer
- Additional review of developer's use of power under different standards
166
What are grounds for owners to challenge association actions?
- 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
How do courts tend to treat situations where the common interest community is merely enforcing the rules in the CCR?
Courts tend not to second guess the CIC
168
How do courts tend to treat situations where the HOA follows procedural rules but imposes a new rule that was not in the CCR?
Judges are less deferential
169
Business Judgment Rule
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
Is more or less deference given under a reasonableness standard than a business judgment standard?
Less deference
171
Why should HOAs be reviewed under a different standard than cities?
HOAs might....
- be more vindictive
- Have inadequate process
- fewer public watchdogs
172
Town and Country Estates Ass'n v. Slater (Mont. 1987)
- 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
Is "harmony" an approved design standard for HOAs?
Louisiana: Yes
Montana: No, need more specificity
174
What does the Restatement say about an association's power to levy assessments?
The association should have the power to levy assessments if CCRs are silent on the issue
175
Thiess
- 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
How did Florida change its statutes regarding changes in condo ownership and assessments after Thiess?
Required unanimous consent for changes in percentage ownership or assessment (codifies Thiess)
177
What is a Kaldor-Hicks improvement?
Where the benefits to society outweigh the costs
178
Majority rule voting may...
- Fail to register weak preferences
- Undercount strong preferences
- Overcount moderate preferences
179
What are different possibilities for distributing association votes?
- Each unit gets the same number of votes
- Votes by square footage
- Votes by value
180
What is unique about Houston, TX?
No zoning
181
What are two common components of planning?
- 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
When is voting in elections rational?
If voters have intertwined utility curves (they care enough about effects on others)
183
How could zoning increase housing prices?
- Increases cost of supplying housing
| - Increases demand for housing
184
Must zoning be consistent with the comprehensive plan?
- 1/4 of states: Comprehensive plan has legal and political power
- 3/4 of states: Not much legal power, mostly political power
185
According to Hayek, complexity of important interests means we need
coordination by a price system
186
What movement prompted city planning on a grand scale?
Burnham, Howe, and the City Beautiful Movement, which made plans for the "coordination of urban life in all its relationships"
187
What efforts by the federal government contributed to zoning in the US?
The 1928 Standard City Planning Enabling Act and the 1954 requirement for a "program for community improvement" to get urban renewal funding
188
What did Ebenezer Howard propose?
Reverse the flow of people to cities like London by creating "garden cities" that allowed living in harmony with nature.
189
What are the characteristics of garden cities?
- Self-sufficient
- Limited size with surrounding green belt
- Max 30k population
- close-knit social life
- Functions like industry, commerce, and housing separated
190
What was the problem with Howard's garden city proposal?
Underestimated population growth (and perhaps the efficiency of density)
191
What did Jane Jacobs say about city planning?
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
What principles from Howard were carried on by the planning and zoning movement?
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
What sort of limits might zoning impose?
- Height
- Area
- Density
- Uses
194
Do multiple unrelated adults qualify as single-family residential use?
- 7 college students: No (New York)
| - Halfway house: Yes (Indiana)
195
Do short-term rentals count as single-family residential use?
- 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
What are traditional flexibility mechanisms with zoning?
- Variance
- Special exception
- Map amendment/rezoning/zoning amendment
(intended to be administered by non-paid citizens, not professionals)
197
What is a variance?
An exception for a specific owner's use
198
What is a special exception?
Uses identified in advance that can be in other zones, such as schools and churches in residential zones
199
What are the modern flexibility mechanisms in zoning?
- 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
Compared to private owner/developers, public employees...
- might have shorter time horizon
- usually are less financially interested
- are more inclined to consider externalities
201
Why did cities hesitate to employ zoning?
It might be an unconstitutional taking without compensation or deprivation of property without due process
202
Why was the Euclid case brought?
As a test designed to kill zoning. Opponents of zoning believed that the conservative Supreme Court would strike down zoning
203
Euclid v. Ambler Realty
- 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
Facial attack
Statute is unconstitutional on its face, not just as applied
205
Why was zoning upheld in Euclid?
Segregation and planning of uses protects property values
206
What test does the Court apply to the due process question in Euclid?
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
What are remedies for violation of zoning ordinances?
- Often an injunction to comply (possibly requiring removal of building)
- Some courts will balance the equities before enjoining
208
Nectow v. City of Cambridge
- 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
Why was Nectow's substantive due process challenge not precluded by Euclid?
It was an as applied challenge, not a facial challenge to the zoning ordinance
210
Coniston Corp. v. Village of Hoffman Estates
- 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
What are the procedural requirements for legislative and adjudicative actions?
- 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
How can we tell if a decision is legislative?
If a legislative body has NOT adopted either substantive criteria or procedural requirements to bind itself, the decision is legislative rather than adjudicative.
213
Is the denial of a building permit a deprivation of property under the 14th amendment?
- 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
What is the substantive due process standard according to Posner?
For the ordinance to violate SDP, it must be "based on considerations that would violate specific constitutional guarantees" or "invidious or irrational"
215
Twigg v. County of Will (Ill. 1994)
- 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
Cormier v. County of San Luis Obispo (Cal. 1984)
-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
What does the casebook say makes the difference in outcomes in Twigg and Cormier?
Difference between activism and deference (IL gave less deference to local government).
218
What does the "invidious or irrational" and "arbitrary and capricious" standard mean for SDP?
Not rationally related to a legitimate state interest
219
What is a threshold test for zoning?
Looks for benefits to public and means that are rationally related to legitimate ends (CA in Cormier)
220
What is a balancing test for zoning?
Look for benefits to public and compare to costs to owner (judges check balancing done by legislature, IL in Twigg)
221
What is the Orthodox quartet of benefits from zoning?
Health, safety, morals, general welfare
222
What does Nectow substitute for "morals" in the Orthodox quartet?
Convenience
223
Is limiting competition a legitimate end of zoning?
Usually no. It can make the legislation invalid or simply be a factor in balancing
224
Sprenger, Grubb, and Associates v. City of Hailey
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
Island Silver and Spice Inc. v. Islamorada (11th Cir. 2008)
- 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
Dormant Commerce Clause Analysis
- 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
Did the court in Islamorada say that preserving small town character is a legitimate purpose?
Yes, but the town had no small town character to preserve
228
What is not a legitimate end for zoning (not within orthodox quartet)?
- 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
Can states be held liable under antitrust law for protectionist zoning?
No (Parker v. Brown)
230
Can cities be held liable under antitrust law for protectionist zoning?
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
Can private actors be held liable under antitrust law for protectionist zoning?
They are not liable for petitioning government to engage in anticompetitive behavior, but they can be liable for petitioning private code writing organizations.
232
Boise Cascade v. Gwinnette County (Ga. 1967)
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
State v. Cook (Wa. 1967)
–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
Layne v. Zoning Board of Adjustment (Pa. 1983)
- 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
Tyler v. College Park (Maryland 2010)
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
Are peninsulas/wavy lines typically found to be discriminatory line drawing?
Rarely found to be irrational or an abuse of discretion
237
Are islands typically found to be discriminatory line drawing?
More likely than peninsulas (this is called spot zoning and can be found irrational)
238
Village of Willowbrook v. Olech (S. Ct. 2000)
- 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
Why did Posner advocate for two additional requirements for cases involving discrimination against a particular landowner?
To avoid turning lots of land use restrictions into equal protection cases.
240
What are the elements for class of one equal protection suits?
1. Intentionally treated differently
2. No rational basis for the difference in treatment
(Posner would impose two more requirements)
241
How does Olech impact EP challenges?
There is some evidence that EP challenges are now more successful than before Olech.
242
What is the source of takings doctrine?
5th Amendment, applied to states via 14th Amendment.
- Traditional: due process clause
- Thomas and others: privileges and immunities clause
243
The government can take property only if BOTH
1. The taking is for a public use
| 2. The government pays just compensation
244
What is the Hawaii Housing Authority v. Midkiff standard for public purpose in takings?
"Rationally related to a conceivable public purpose."
245
What does Kelo v. City of New London say about public purpose in takings?
- 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
What is "just compensation" for takings?
Difference in fair market value of land before and after the government action
247
What are the contexts in which the takings clause applies?
- Condemnations
| - Inverse condemnations
248
Condemnation
Intentional exercise of the power of eminent domain
249
Inverse condemnation
Unintentional exercise of the power of eminent domain, often attempted exercise of police power.
250
Mugler v. Kansas
- 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
What are the broad a narrow readings of Hadacheck v. Sebastian, where a statute banned brickmaking?
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
Penn Coal v. Mahon
- 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
Keystone Bituminous Coal Ass'n v. DeBenedictis (1987)
- 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
Strickley v. Highland Boy Gold Mining Company (1906)
A public purpose or benefit suffices; condemn easement to allow private party to get gold to market
255
Berman v. Parker (1954)
Clearing blighted area for redevelopment is a public use, even if the land taken isn't blighted.
256
How can you reconcile Penn Coal with Mugler and Hadacheck?
- 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
Miller v. Schoene (1928)
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
Stop the Beach Renourishment v. Fla. Dept. of Environmental Protection
- 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
Rationales for requiring compensation
- Efficiency of government decisions
| - Fairness
260
Fiscal illusion
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
Michelman's efficiency analysis
Only compensate if D>S
S=administrative costs of a compensation system
D=demoralization costs from not compensating this kind of case
262
Why is the compensation itself not included in Michelman's efficiency analysis?
Because the compensation payment is just a transfer
263
Epstein's efficiency test
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
Why must the pie slices stay the same shape in Epstein's efficiency test?
- Reduces rent seeking (fighting over the same resource)
| - Assures Pareto superior changes
265
What is the social benefit of insurance?
Because of the declining marginal utility of wealth, disutility is minimized if losses are spread broadly
266
What is the Armstrong principle?
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
Enterprise-arbitrator theory
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
Penn Central Transportation
- 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
2 ways to find a taking through inverse condemnation
1. Legitimacy Analysis
| 2. Impact Analysis
270
Legitimacy analysis for inverse condemnation
A regulation is a taking if it fails to substantially advance a legitimate state interest
271
Impact analysis for inverse condemnation
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
Per se takings (impact analysis)
Deprivation of a fundamental attribute of property based on character of government action
273
Takings in fact (impact analysis)
Look at all three factors. Regulations that are considered takings if they go too far
274
Is right to take possession and practical ability to do so a fundamental attribute of property in a per se takings analysis?
Yes, but temporary restraint is not a taking
275
Is the right to alienate property a fundamental attribute of property in a per se takings analysis?
No (Andrus v. Allard)
276
Is right to exclude a fundamental attribute of property in a per se takings analysis?
Loretto Telemprompter: Yes, a permanent physical occupation is a taking
277
Is rent control a deprivation of the right to exclude?
- Applied prospectively: No, just a price control
| - Applied retroactively: Owner cannot evict tenatn
278
Lucas v. South Carolina Coastal Council (1992)
- 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
What makes Lucas unique?
It is the first (and only case thus far) to hold that a regulation can be a per se taking
280
In Lucas, did the state challenge that Lucas's property was valueless?
No, they relied on the importance of their action in their argument
281
Did Scalia recognize a harm-preventing defense in Lucas?
No, but he does recognize preventing a nuisance as a defense
282
Preventing nuisance categorical defense to takings
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
Can lawmakers consider science to find nuisances?
Yes, we learn things that can change what was once viewed as benign to being a nuisance (ex: radium on watch dials)
284
Can the legislature define new nuisances?
Scalia in Lucas: Legislature can declare new nuisances only to the extent that the courts would declare new nuisances.
285
What is the deprivation factor for the third Penn Central factor?
(FMV before regulation - FMV after regulation) / (FMV before regulation)
286
What is the conceptual segmentation/starting parcel problem?
What is the set of rights before the regulation?
287
Palazzolo v. Rhode Island (2001)
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
Tahoe-Sierra Preservation Council
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
Murr v. Wisconsin (2017)
-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
What new doctrine does Murr v. Wisconsin lay out for determining the starting parcel?
Look to the owner's reasonable expectations
291
Factors in owner's reasonable expectation
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
How did the mention of "complementary" goods get into the Murr decision?
It was a focus of oral argument/briefing
293
What is the Cheese Shop Problem?
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
Why does Roberts dissent in Murr?
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
Monterey v. Del Monte Dunes
Repeated rejection of owner proposals can deprive owner of all economically viable use (per se taking)
296
Passage of time problem (for determining value after regulation)
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
Average reciprocity of advantage (value after regulation)
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
What is one solution to the passage of time problem?
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
Do TDRs reduce the loss or provide compensation?
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
Even if no remaining value, no compensation is required if government is...
- 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
According to the majority in Palazzolo, is coming to the taking a defense?
No, it is not a defense. B can still bring the takings case even though A owned land when the restriction was implemented.
302
What is the effect of Lingle v. Chevron?
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
What are potential solutions when owner improvements to private land generate negative externalities?
- Ban private improvements
| - Require owner to pay an exaction for the permit to internalize externalities
304
What is an exaction
State says "trade your property for our permission"
305
Exactions Generally
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
Problems with Exactions
- exaction is actually a bribe
- exaction is payable only by the rich
- exaction is too high, owner bearing burden the public should bear
307
What are some state standards for approving exactions?
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
How can exactions be a problem if the government has the power to impose a total ban on an activity?
- 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
Nollan v. California Coastal Commission (1987)
- 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
Nexus test from Nollan
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
If legitimacy test is gone, what else can Nollan doctrine be based on?
Unconstitutional conditions doctrine.
312
Unconstitutional conditions doctrine
The government cannot put conditions on the exercise of constitutional rights
313
Is the Nollan test over- or under-inclusive?
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
Dolan v. City of Tigard
-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
Could Tigard have simply taken the land or an easement it wanted without paying?
No, but they could have just denied the permit
316
Dolan rough proportionality test
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
In Dolan, what was wrong with the required dedication of property along the creek for a public greenway?
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
In Dolan, what was wrong with the demand for dedication of a hike and bike trail?
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
What sort of standard is the Dolan rough proportionality test?
Goldilocks standard--city can't ask for too much or too little.
320
Do Nollan and Dolan apply when the exaction is cash?
Yes (see Eastern Enterprises v Apfel)
321
Do Nollan and Dolan apply to the denial of a permit?
Yes (under Koontz)
322
Where do Nollan and Dolan apply?
Only in exactions
323
Koontz v. St. Johns River Water Management District (2013)
- 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
Koontz additions! Nollan and Dolan...
- 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
What were the options in Koontz
1) 1-acre permit = 2.7 acre-easement = good
2) 3.7 acre-permit = $ to be spent improving public lands = bad
326
Alito in Koontz
Alito in Koontz says to compare the options the government gives. if one option is good that is good enough
327
Does a cash impact fee, for an exaction, internalize externalizes thereby creating efficient incentives for the owner?
yes,according to pigou
328
do cash exactions mitigate the externalizes felt by neighbors?
probably not (so cash impact fee is fair and efficient for owner but not for neighbors)
329
What is the difference between a property tax and a taking?
court does not say. we do not know where to draw this line.
330
Did the monetary payment in Koontz fail nollan-dolan?
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
What is Nancy Reagan's advice to governments with permit applications?
JUST SAY NO
332
What is intentional behavior in a nuisance per accidens analysis?
When D acts for the purpose of causing the interference or knows that interference is likely to result from harm
Stake's Classes
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