Private Land Use Controls


South Street Part Two – no written memo required



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South Street Part Two – no written memo required


On Monday, April 12, we will discuss your memos, and at the end of class you will receive part two of the exercise. We will discuss part two on Wednesday, April 14, and your group should meet briefly before Wednesday’s class to formulate a group position, if possible, on the correct response to the problems posed by the new developments. No further written memo is necessary.

VNA did do PR campaign. Needham is not a rich area, lot of people live on small lots. This is a rich area of a middle class suburb. The Planning Board gave VNA the permission to go through.

There was no question that they would have to grant the driveway. But if they had blocked it VNA would have had to sell the building, there was that much of a time barrier.

The neighbor agreed to let VNA use the driveway until the second driveway was completed.

The process before the zoning board of appeals was not smooth. 3-0 vote required to overturn Levigne. Voted to not grant the special permit. Disclaimed the power to declare the Needham Zoning By-laws unconstitutional.

Opponents paid a lot of money to contest VNA. They probably would have contested any appeals process. VNA would have to pay mortgage, Margolin, just starting a huge legal battle.

Options for VNA


  • go to court to appeal decision of ZBAN under the Fair Housing Act. Even if we win might be a pyrrhic victory. Might want to show that the Needham board does not have a right to make this kind of decision. Just because we sell the house and give up the case in Needham doesn’t meant that we no longer want to pursue the question of whether a hospice can go up in Needham. This is the first significant hospice in the commonwealth. Precendence will be set, if we give in to public stonewalling, won’t achieve goal. Have to deal with it so that the next time we have a precedent.

  • File in State Court under Section 40A 16, to contest both the local and state action. The fair housing act gives concurrent jurisdiction.

  • Will the grounds be different from state/federal arguments? Have an appropriate action for the superior court.

  • Is there any reason to go to the federal court? May avoid local bias from neighbors in the federal court. Want to know where the jury pool is? Federal court in Boston, wider jury pool.

  • Empirical question about whether Needham is going to be antagonistic to this.

  • Federal cause of action better for wider precedent, apply throughout the 1st Cir., higher degree of deference.

  • Statute of Limitations question, shorter in state court.

  • Can get attorney’s fees in a federal cause of action. But if you have concurrent jurisdiction might be able to get fees in both since its in the federal statute, 3613C.

  • VNA filed in state court.

  • Ended up going to land court. The judges in the land court will know this stuff cold. If you are right you want a more knowledgeable fact finder. About expertise.

  • Downside to this course of action, now have lain down the gauntlet. Have said we are going to law, suing you for discrimination. But we have tried all the other options, appealed to the local board, did the PR campaign. Doesn’t matter as far as 920 South Street is concerned because if we don’t get something quickly then its over.

  • Sell the house, might have made a profit.

  • Threaten to sue, but work for a settlement. Maybe won’t have a money problem, because the firm might do it pro bono. Still have time problem, still can’t pay mortgage.

  • Problem leasing the house, what if they win? If they get the right to make the hospice, they then have a tenant.

- Make an Amendment: Goes to the experts on the planning board, studies, sends to planning board with a recommendation, the planning board recommends to the city council, approves. Sends back to the planning board to be implemented.

What does the amendment say?



  • want to distinguish a hospice from a nursing home. Educational facility shouldn’t be put under the restrictions of a nursing home.

  • RHH, residential hospice home, adding a new use

  • Whether a new use or a new use district its an amendment either way.

  • What if changed the rules to allow for approval with two votes rather than three. Can’t do this because this is a state created rule, 40A section 9. Won’t want to enact this policy allows approval too easily.

  • Want it to be a legislative decision in our favor. Want a use rather than a use district. When the use is created by the Town Meeting. The legislative body, want it placed immediately so the whole thing is seen as legislative on judicial review. Also want to be able to use it now, not in the abstract. If its not OK on this property we will have to sell it.

  • The Town Meeting will vote on it. Want it to be in the Residence category.

  • Do you want it to be Y’s across the board? Want to combat the fear that hospices will go into each zone, all over the place. All residential zones, no. Just put it into SRA. May limit choices later, but it’s the easiest one to get support for right now.

Work with ally on the planning board to get community support.

We control what amendment we propose, but the committee can make revisions.

What do we do with RHH, we have to define this use. The definition can also be revised.

If you go to town meetings, the public is going to decide.

Want only one hospice in Needham, but may want to open them elsewhere, don’t want to limit yourself with wording, structure of the amendment to have it used against you later.

Monday, Reading


4/19


Tues: 1265 – 1274

Wed: 1195 – 1233


Village of Belle Terre v. Boraas


Facts: 6 students from Stonybrook that wanted to move in together. Ordinance said no more than two people could live together unless they were a family. The students brought an action that this was unconstitutional because abridged:

  • freedom of association,

  • interferes with their right to travel, migrate to and settle within a state. Footnote in the majority opinion talks about “democracy is born of free land.” Used by the students in their brief. An appeal to one of America’s myths.

  • Idea of freedom, go where you want to go, live where you want to live.

  • Family values, triumph in Moore v. City of East Cleveland, shows a preference for families.

  • Idea of what your land is includes control over your neighbor’s land. Have to distort your view of your neighbor’s land to get a view of your land.

Go back to brief for Ambler Realty in Euclid which discussed the nature of zoning. Talked about what was natural. Zoning trying to prevent the natural development of Euclid. The lawyer said the operation of the market was natural. The land was best suited for industry taking advantage of the transportation infrastructure in the area. The city of Euclid was trying to block that natural development.

- Zoning standing in the way of nature, failed in Euclid. In many instances it doesn’t, like in Belle Terre. Has to do with the pressure on the city of Euclid and the village of Belle Terre.



  • Assumption of the brief, and most people, is that what is natural is the market. Zoning calls all of that into question.

Issue: How do people get control over their land? Each village, town, can organize itself democratically to determine its own future. Zoning is the archetypal expression of that. Have conflict of the two here.

Rule: the town wins, the republican ideal of the people getting together working for the common good, restricting individual rights in the name of the common good. Individuals restraining their rights for the common good. They chose to do this, the court said that was fine.

Limitation on this in Moore


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upload documents -> Federalism – The Structure of Government
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upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions


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