TOPIC 3-4

TOPIC III

PUBLIC AND PRIVATE CONTROL OF LAND USE

PRIVATE CONTROL
	A. NUISANCE AND SOME ECONOMICS
		1. Boomer
				a. What did the court of appeals do in Boomer that the lower courts had not already done?
				b. The court does not answer Judge Jasen’s dissenting argument. What is the answer?
				c. If we are to “balance the equities” how do the following things cut:
						i. Defendant’s investment was $45 million; plaintiffs’ permanent damages $185,000
						ii. Plaintiffs were residential users, not industrial, commercial, or agricultural
						iii. Other residents of the area who were not parties to the suit were harmed by defendant’s activities
						iv. There was no measurable threat to public health shown
						v. Defendant had complied with all relevant zoning and evinronmental protection laws
						vi. Defendant could not have easily predicted that it would be held to be a nuisance, but it could have predicted that its operations would harm those like plaintiffs
			2.		Coase
					a. How does it work?
					b. How doesn’t it work?
					c. Consequences for the law?
	B. INTRODUCTION TO NON-POSSESSORY INTERESTS IN LAND
			1. corporeal vs. incorporeal hereditaments iura in re sua vs. iura in re aliena the questions on p. 894
					a. Any legal effect? b. Changed conditions, changed use c. Abandonment d. Conveyance, succession e. Appurtenance vs. in gross f. Residual rights g. Eminent domain
			2. Labels dictate results
					a. right in the land of another vs. estate b. easement vs. covenant i. driveway easement as easement ii. as covenant c. affirmative vs. negative d. appurtenant vs. in gross/dominant vs. servient e. burden vs. benefit
	C. EASEMENTS – THE BASICS
			1. Waldrop
					a. what difference would this have made if covenant? i. notice

Index:	Vendor	Vendee
		1939 Tinsleys <—Shipmans descrip
	descrip town <-Shipmans 1938	\|
	\|	\|
	\|______________	1910 Shipmans <- X descrip

		ii. changed conditions b. why is this an easement?
	2. Petersen
		a. what kind of an easement is it? the labeling game b. why is this an issue? good draftsmanship c. what difference would it have made if it were a fee estate? a covenant? i. building ii. injunction iii. damages iv. eminent domain d. who is the plaintiff?
	3. Cox
		a. changed conditions—1945 $8600; 1960 $250 K; c. 3000% b. the scope consequences of appurtenance c. why presume appurtenance d. why width of road controlling but not use? e. why not tell the parties what they really want to know?
	4. Categorization rules used to achieve perceived desirable results
		a. successors & assigns without notice — Waldrop b. changed conditions — Waldrop c. full use — Cox d. surcharge difficult to prove — Cox
	5. All cases so far as scope cases
		a. Petersen – contract-type approach a. Waldrop — the changed conditions b. Cox — uses appurtenance
	6. Because easements are so difficult to get rid of, the courts have a tendency to use the categories to move things out of the easement category into some other category. A favorite category is “license.” A license is like an estate at will, only with a non-possessory interest. It’s a personal, revocable permission given by a landowner to someone else. The person who has a license may not convey it. Indeed, in most jurisdictions an attempt to convey the license will extinguish it. Like an estate at will a license is what you get if you attempt to create a non-possessory interest that violates the statute of frauds.
D. FUNNY EASEMENTS — a.k.a. EASEMENTS ARISING OUT OF MALPRACTICE
	1.	Prescription—pp. 90–94
	2.	Estoppel and/or Part Performance
	3.	Necessity and/or Implication
		a. Plat easements b. Quasi easements c. Strict necessity d. The initial requirement of unity of title.
	4.	Cooke — what doctrine involved (Where two parts of the course come together)
		a. prescription—against state? b. implication—no unity of title? c. part performance—was there an oral grant? Contast Stoner v. Zucker d. estoppel—only one left; hence much like Hayes Cooke—the problem with the distinction between part performance and executed parol license is the problem of what do we mean by “license”—is it the conveyance of an interest intended to be revocable or is it the conveyance of an interest not intended to be revocable but which ends up being revocable because it’s not in writing?
E. COVENANTS – THE BASICS
	1. Easements vs. Covenants

easements

|->affirmative
|
|-> negative

negative <-|
|
aff’tive <-|

covenants

a. burden and benefit
p’or p’ee
b. w/the land or in gross

			c. Side note on “spurious easements” d. Side note on warranties, Packenham’s Case
		2. Spencer’s Case

horizontal Sp. et ux. ——^{21 yrs.}—-> p’ee	S p’or \| \| J, a’ee₁ \| Clark, def., a’ee₂	vertical
The issue is the running of the burden

	3. The rules at law
		a. formalities – some odd common-law rules; I doubt that any of these remain except for the S/Frauds with the usual equitable exceptions d. intent — — once more, some odd common-law rules; few jurisdictions have them today, but the basic concept remains c. touch & concern i. Restatement test physical relation of burden & benefit ii. Judge Clark’s test iii. Special problems affirmative covenants covenants not to compete iv. Restatement 3 test: a public policy determination about whether this type of covenant should be allowed to run c. privity i. vertical ii. horizontal (Many proposed tests; I won’t hold you to them.)
	4. Spencer’s Case
		a. privity? b. touch & concern? c. intent?
	5. Equity contrasted: Starting in the 19th century, the courts of equity developed what was, at least for the time, looser rules that would allow coveanants to run in equity when they would not run at law. The extent of coincidence of the rules remained unclear for some time, and, to a certain extent, remains unclear today. One thing, however, was clear, and remains clear today: for a covenant to run in equity, privity of estate is not required; what is required is that the person against whom enforcement is sought must have notice of the existence of the covenant.
	6. Today
		a. Relevance of the law-equity distinction i. as to remedy ii. as to changed conditions b. Drafting practice i. Ensuring notice in case the court gets strict about privity ii. Ensuring that something that can only be remedied at law can also be remedied in equity by the use of a lien
F. THE RUNNING OF THE BENEFIT
	1. Charping
		a. Holds that the ben. was not intended to run? b. What does it hold about the burden? c. Ways of getting the ben. to run: i. Use of the word “assigns” ii. Covenant to include covenants iii. Common plan
	2. Richmond — suggests that the ben. can be held in gross — not all courts will be as liberal as Van Sant; cf. Allen. What’s all this talk about the amendment to the condo agreement about? 3. Where are we today?
		a. Charping is good law — there must be intent b. Allen has been severely criticized c. Most drafters don’t take the chance i. Have the assignee own land, or ii. Develop according to a common plan
G. USES OF A COMMON PLAN
	1. Uses of the common plan
		a. intent i. that the benefit run - Charping ii. with what land? b. does the benefit run to prior takers? - vertical privity c. may the purchaser of land w/o covenants be bound?
	2. What does Riley add to our knowledge? Limited to the situation of the first deed out? Overrules Cook v. Ramponi?
H. GETTING RID OF COVENANTS
	1.	Ginsberg – almost unique (cf. Abbate)
		a. Why no estoppel? – estoppel vs. acquiescence compared; see Camelback b. Why no changed conditions? c. The constitutional issue i. Shelley v. Kramer ii. public/private distinction iii. interference w/ free exercise? (i.e., if Shelley applies)
	2. Camelback
		a. the concept of a buffer zone (perhaps more a product of logic than of reality) b. why not estoppel? c. What does the no benefit rule mean?
	3.$ x = value to burdenend owner of being able to build commercial $ y = value to benefited owners of burdened not building Time (a) sum of x < sum of y Time (b) sum of y > 0 Do we have an efficiency problem here?

PUBLIC CONTROL
	A. INTRODUCTION
		1. Public control of land use - could be and is a course - I propose to do it w/ 4 classes - lecturing today and probably at the end — admin. & const. issues 2. The stat.
				sec. 1 - the notion of the police power sec. 2 - uniform for each class & kind sec. 3 - comprehensive plan - and a repeat of the basic police power type of public purposes sec. 4 - hearing 15 da. notice by leg. body sec. 5 - change and amendment process sec. 6 - the commission - the report sec. 7 - bd. of adjustment or bd. of zoning appeals - special exceptions - appeals - variance sec. ? - the concept of the non-conforming use
		3. What was wrong w/the Town of Preble’s attempt to zone?
				a. zoning comm’n? b. 12 da. vs. 15 da. notice? - notice of mtg for the Town board - the map c. lack of plan d. who has the b/p e. ct. thought “spot zoning”?
		4. Could the town have passed an ordinance banning rock concerts?
				a. stat. authority - see p. 1028 b. constitutionality i. non-conforming use ii. general notion of the police power iii. overbreadth or discrimination iv. making what isn’t a nuisance
		5. Why doesn’t this ordinance do it?
				a. form over substance - Goldblatt (p. 1030) b. ct. control c. the court didn’t see the argument?
		6.		How would Coase solve this problem?
	B. ZONING BASICS
		1.		Euclid
				a. Euclidean zoning b. general attack on ordinance – standing c. churches courts and libraries d. previous Sup. Ct. cases e. the maintenance of residential districts <—- nuisance i. overbreadth (how did the ct. get around this arg.) ii. apartments (how did the ct. include them) f. Nectow g. consequences i. Ohio Const. vs. U.S. Const. ii. Euclid as a separate entity iii. result in fact
		2.		Pierro
				a. legitimate goal of regulation - motive vs. purpose b. classification i. as to area ii. as to use c. taking - the effect of reg. on particular prop. d. the sliding scale of b/p
		3. Some dichotomies
				a. purpose vs. method b. general (zoning) vs. specific (nuisance-type) c. the scheme in general vs. as appplied
		4. Stoyanoff: What are the issues?
				a. aesthetic purpose b. not authorized by the enabling act c. standardless delegation d. review board not authorized
		5. Is this a good piece of legislation?
				a. the poor b. the eccentric
	C. EXCLUSIONARY ZONING
		1. Summarize the 3 cases:
				a. Mt. Laurel I (1975)—there is an obligation to be open to low- and moderate- income housing b. Mt. Laurel II (1983)—the courts will enforce this obligation by special procedures c. Mt. Laurel III (1986)—the courts will defer to a legislatively-established commission to enforce the Mt. Laurel obligation
		2. Where does the Mt. Laurel I obligation come from? Due process? Equal protection? By emphasizing how N.J. differs from the feds on the latter, court seems to be suggesting that it’s equal protection, but when it gets through it seems to be a notion of relationship to the general welfare. We thus do not get involved in the question of fundamental interests or suspect classifications. 3. I thought that courts were supposed to defer to legislative determinations. What happened here? The problem that we raised in the Preble case. Those that don’t live in Mt. Laurel don’t vote there. 4. What are the mechanisms of Mt. Laurel II:
				a. Must raise level of housing for resident poor. b. Realistic opportunity for fair share of present and prospective poor without regard to whether the area is “developing”. Deference to the State Development Guide Plan. c. Proof of fair share in numeric terms. d. Three specialized judges. e. Affirmative steps must be taken, e.g., tax incentives. f. Both low and moderate housing. g. Just least cost housing won’t do. h. Builder’s remedies. i. One trial and one appeal. j. Long-term obligation and phase-ins.
		5.		What does Mt. Laurel III hold?
				a. Delay does not make the Fair Housing Act unconst when the delay is designed to allow the devlopment of a State Development and Redevelopment Plan. b. Moratorium on builder’s remedy not unconst where limited, and it was never part of the const law. c. No evidence that only delay will result nor that builders will loose interest. Must give it a chance. d. Not an interference with the judicial const power to manage the courts. e. All cases must be transferred unless transfer would preclude the building of housing. (“Manifest justice” strictly construed.)
	D. PENN CENTRAL
		1.		Would the legislation in this case be authorized under the enabling act as interpreted by the Stoyanoff court?
		2.		The court’s summary of takings jurisprudence on pp. 1093–94. Note particularly the concepts of “investment-backed” expectations and “physical intrusion.”
		3.		What are Penn Central’s arguments?
				a. Conceptual severance—United States v. Causby b. Significant diminution in value—Euclid c. Reverse spot zoning—but it’s city-wide d. Lack of uniformity—Goldblatt e. Air-rights park—not Causby
		4.		Does it go too far? The Mahon question.
				a. No interference with present use. b. We don’t know how far they’ll limit. c. They’ve got transferable development rights.
	E. THE 1987 “TETRALOGY” AND BEYOND
		1. The 1987 Cases with Follow-up:
			a. Keystone Bituminous Coal Ass’n v. DeBenedictis b. Hodel v. Irving (Follow-up: Babbitt v. Youpee [1997]) c. First Evangelical Lutheran Church v. County of Los Angeles Nollan v. California Coastal Commission (Follow-up: Dolan v. City of Tigard [1994])
		2.	The paranoid planner’s view of all this:
				a. Three out of four cases go against the government. b. Another absolute has been added to the right to exclude. Irving. c. First English means that no regulation can now be passed without fear of dire consequences. d. Nollan means that Planned Unit Developments are unconstitutional.
		3. Michelman in Columbia Law Review in 1988:
				a. Yes, it is true that an unusual number of cases go against the government here but what do they actually hold. b. In Irving the power to dispose of property at death was totally denied not simply regulated. c. First English does raise the stakes for planners who pass unconstitutional regulations, but the history of the case suggests that even the drastic measure of total denial of building permits may be allowed where there is justification. d. Nollan may stand for the proposition that regulations of property will be subjected to a kind of intermediate scrutiny for rationality like that to which statutes that discriminate on the basis of gender are subjected. On balance, however, the citations of Loretto and Kaiser Aetna suggest that we are dealing here with the “peculiar talismanic force” that the Supreme Court attaches to direct physical invasions.
		4. *Lucas*
				a. Where landowner is totally deprived of value he must be compensated unless the regulation deals with a nuisance. b. Was this landowner totally deprived of value? If not, can we make sense of the scope of the “nuisance exception”? c. Where does the idea of “total deprivation of value” come from? i. 1789–91? ii. 1868? iii. 1897? Chicago, Burlington & Quincy d. Where does the “nuisance exception” come from? i. 1789–91? ii. 1868? iii. 1897? Chicago, Burlington & Quincy e. How much practical effect will this have?
		5.		Palazzolo – Lucas is going to be limited to its facts?
				a. Holdings: i. case is ripe. The ground of this is basically that two applications for a special exception and a categorical regulation are enough. ii. Post regulation acquisition did not bar a takings claim iii. Because the petitioner has 18 acres on which he can build one residence, he’s not been totally deprived of value. Case is remanded for Penn Central determination. The pictures (and Christian Jenner in 2004) cast some doubt about this. It would not take much to sever the upland which was on one side of the pond from the wetland which was on the other. b. O’Connor vs. Scalia: When one bought is one factor to be taken into account vs. it’s never a factor. c. Ginsburg (with Souter and Breyer) dissented on the ripeness grounds. Breyer also made clear that he agreed with O’Connor. d. Stevens dissents on the timing question. Only the victim of the taking can sue for it. Is his analogy to the action for mesne profits (the taking of fruit by a trespasser) correct? e. Palazzolo v. State, 2005 WL 1645974, No. WM 88-0297 (R.I. Super., July 5, 2005), on remand holds that P. has no Penn Central claim and that his proposed development would be a public nuisance (at least mutterings about the doctrine of the public trust being part of the background law).
	F. WHAT DOES IT ALL MEAN?
		1. Takings Overview
				a. Purpose vs. method b. General vs. specific c. General vs. as applied
				i. it’s not rationally applied - Nectow ii. there’s been a total deprivation of value - Mahon, Lucas iii. there isn’t a sufficient corresponding benefit - State v. Johnson; other real estate holdings in Penn Central
		2. Some theory - B. Ackerman, Private Prop. & the Const. (1977)
				a. utilitarian b. Kantian c. separation of powers d. process costs
		3. Legal vs. social property
				a. Highway Dep’t vs. the Air Force b. the two Cadillacs - taking c. Hamburger Heaven & Residential Zoning - destruction d. keep the car in the garage - deprivation
	G.	Kelo
		1. Justice O’Connor not only joined in the majority opinion in Hawuaii Housing Authority v Midkiff; she wrote it. Did she just get more conservative after 21 years? 2. Now that we’ve got some better idea of what may be at stake here, can we see how this case relates to the regulatory takings cases with which we have been dealing? (The obvious way in which they do not relate is that there’s nothing about “public use” in the due process clause.) How do the majority and dissents on this on this question. (Totally apart from Thomas’s “original understanding” argument, there is a genuine question, if one takes the language of the constitution at all seriously, whether “public use” in the fifth amendment as applied to the states in CBQ means the same thing or something different from the police power which may justify the deprivation of property on the ground of due process.) 3. Granted that Berman and Midkiff were on the books, who’s got the better of the argument between Stevens and O’Connor. 4. What do we make of Justice Kennedy’s concurrence? (Note that it was necessary to make up the majority (which included, in addition to Stevens, Souter, Breyer, Ginsburg). 5. That brings us to Thomas all by himself. In parsing the words of the constitution he has one good point (about negative inferences) and one bad one (the original meaning of the word use). He would neither interpret use broadly nor would he defer to the legislature. Thus, he would overrule both Berman and Midkiff. This is radical stuff, and I think it unlikely that the court will go that far. 6. Many states have a more limited eminent domain power whether as a matter of prior state constitutional law (written in or interpreted) or as a matter of a reaction to this case, which was quite extreme.
		7. Where are we now obviously depends on two virtually unknown quantities: Roberts and Alito. One need not assume that these men will lead a move to more opposition to regulation.

TOPIC IV

		1. Demsetz (Bentham) and utilitarianism
			a. Property as a creature of the state b. Morality, legality, wisdom of redistribution — Demsetz
		2. Hegel/Reich
			a. How does Hegel justify unequal distribution of property b. In what way is Reich an Hegelian?
		3. Flemming
			a. Why is N’s Soc. Sec. claim not prop.? i. Funding system ii. Largesse vs. legislative institution b. Why was Nestor not denied due process —> = protection special scrutiny? c. Hohfeld and Flemming
		4. a. Bentham/Demsetz and Flemming b. Hegel/Reich and Flemming 5. Shelley
			a. State the holding b. How does the court get there? i. Buchanan ii. the Civil Rights Cases iii. state action as substantive accommodation c. The dinner invitation d. Barrows, Barringer, Smith, Evans
		6.	Marx
			a. To what extent is Marx an Hegelian? b. Where do Demsetz and Marx disagree? c. Marx and Shelley i. state action — who is the property owner ii. possession vs. transfer
		7. Shack
			a. What is the ratio decidendi? b. How is it supported? c. The constitutional penumbra
		8. PruneYard
			a. The constitutional penumbra of Shack Marsh, Logan Valley, Tanner, Hudgens b. Key language in sec. IV - recognizes the essentiality of the right to exclude but subjects it to a balancing test citing Armstrong and Kaiser Aetna c. The physical invasion is not determinative here because no “investment-based” expectations at stake - Kaiser Aetna had an i.b.e. of privacy d. Besides the state defines property e. Also no due process challenge - Nebbia f. Conurrences i. Core vs. penumbra — Marshall ii. Owners’ right not to speak — Powell iii. Shopping centers only, no federal right — White
		What was this course all about? Some of the ideas that I will try to develop in the last lecture are more fully explored in “The Future of the Concept of Property Predicted from Its Past,” in Property, ed. J.R. Pennock & J.W. Chapman (Nomos No. 22, New York, 1980) 28–68.

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