Private Land Use Controls

Moore v. City of East Cleveland

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Moore v. City of East Cleveland

Facts: zoning law restricted families to an extent that the court found to be unacceptable. A grandson and cousin of grandson.

Issue: this was not a felony but she was guilty of a crime.

Rule: said that the decision in Belle Terre was fine in that this zoning requirement was different in that it not only restricted families, but drew an arbitrary line at the nuclear family. Not constitutional because arbitrary and capricious and therefore unconstitutional. Such a restraint violates the due process clause of the 14th Amendment by implication. Interpreted to include family values.

Freedom to travel comes from the commerce clause. Says that interstate commerce shall be one of the powers of the federal government and particularly of congress. Provides some check on zoning, but not much.

Schad, Reid, Stover (note cases 1193), give more civil liberty limits on zoning.

Reid v. Architectural Board of Review

Facts: Reid tried to build a house, but could not because it did not fit in with the other type of houses in the neighborhood. Here emphasizing the historical nature of the homes in the neighborhood. Different from Cheyenne Homes v. Rhue case, with the spanish style house. More than aesthetics, the accumulation of practice in both instances which ended up prohibiting a different kind of practice. In Cheyanne, the first 2/3 of buyers that brought in ranch style homes. In Cleveland Heights, it was 100 years of architecture in the town none of which resembled Reid’s modular low lying house.

Issue: the practice of the community is limiting the freedom of its members. May be a greater length of time than Cheyanne, more of a justification.

In Cheyanne homes, those moving there agreed to many more restrictions than the home owners in Reid. Deed restrictions put them on notice, given a choice whether to enter into them.

Here we don’t know if the law existed when Reid moved in. The town had an architectural board of review just like in Cheyanne. When she went to buy her house, if it was in existence, how would she get notice of it? Would have to go the city’s by-laws.

Marketable title: Buffalo Academy, someone trying to get out of a deal because the land has restrictions on it the seller has not disclosed. The seller is bound to give notice of all restrictions from the public record. The seller here would have had to tell Reid of the restrictions.

City of Eastlake, referendum process created after Forest Industries tried to use the land for an industrial purpose.

In Cheyanne Homes/Reid If there is no difference in the amount of notice, restriction, the way it was developed. Both boards based their decision to block based on aesthetic incompatibility which led to a decrease in property values. What you need for ACC, is an architect to tell you these two things are incompatible or a real estate agent to tell you that there will be decrease in property values due to aesthetic incompatibility.

In subdivision complex, the Rhues could have gone to another subdivision or bought a lot somewhere for a stand alone home.

Is there a difference between public and private government and the restrictions they can enforce? As long as Reid can build her house somewhere else, maybe its OK.

  • The nature of a private residential government is contractual so you should allow it to restrict activities more narrowly than a public government. Voluntarily entered into, stop whining.

  • A public government is a covenant between the government and the governed. Reid could get together a group of people and try to change the law. Could do this in private government.

  • The constitution has restrictions which governments can’t waive, whereas in private gov’t the freedom of contract is broader. Can discriminate on any basis, can be substantively arbitrary as long as there is notice. Houses brought before the zoning board will be decided on a coin toss, not possible constitutionally for a public government.

  • Should the leeway of private governments be broader than public governments? Should public governments have a narrower field of action than private? Has to do with the parties to the contract. It’s a matter of scale and choice and the breadth of the contract.

South Street Part Three

  1. Since the complaints’ substance is almost identical, why did VNA choose to file both?

One complaint appeals the denial of the special permit and asks that the court rule that Needham must grant it. The other complaint appeals the initial denial of the building inspector and his requirement that VNA get a special permit; and request that VNA be able to operate a hospice house in Needham as a matter of law.

VNA probably chose to file both because they did not want to concede that they need a special permit to operate a hospice house, but realized that this might be the only way to get approval to open the 920 South Street facility.


18-20 causes of action

Appealing two decisions – denial of the building permit, denial of the special permit.

Different request for relief could have been put in the same complaint

A judge might join them to achieve judicial economy

These two complaints had to be filed separately because the two cases, separate decisions, same short SOL, by which time you must file an appeal. In order to appeal one had to file before the second one.

Besides going through different causes of action, provides all of the legal grounds for VNA’s opening of the hospice.

  1. Do VNA’s appellate arguments have any merit?

  1. Needham’s decision to prohibit VNA from opening its hospice house is arbitrary, unreasonable, has no substantial relation to public health, safety, morals, or general welfare, and is unnecessary to accomplish the public purpose for which the by-law was created.

  2. Prohibiting VNA from opening its hospice house has a disparate adverse impact on citizens with handicaps.

  3. The Town of Needham is selectively enforcing, without lawful basis, its by-law restricting the number of unrelated people who can live together in a single family district.

  4. As a result of a) through c), Needham is violating the Massachusetts Constitution, Part I, Article 10; Amendment Article 114; Federal Fair Housing Act;

  5. General Laws 40A §3 is being violated because a dominant purpose of the hospice is educational. P is a non-profit educational corporation.

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
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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