Private Land Use Controls



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South Street Part Four


  1. Should the appeals to the land court be withdrawn in light of VNA’s success in placing the zoning amendment on the town meeting warrant?

I don’t think VNA should withdraw its appeals to the land court because they need to be timely filed in order for VNA to get action and the outcome of the town meeting is very uncertain. On the other hand, the fact that VNA has already filed in court may have a negative impact on the Town Meeting’s perception of its amendment.

Class: yes it should be withdrawn because we don’t want to irritate the town meeting, could just say to them that we are not going to pursue the lawsuit

Also important for the idea exhaustion of remedies as discussed in Rhue. Don’t have to withdraw, because not just about individual situation, action before the town meeting is legislative, not asking for administrative remedies, those have been exhausted.


  1. As a sworn officer of the court, should VNA’s attorney be engaging in political maneuvering and playing off one Needham faction against another?

I don’t think that Margolin should have narrowed the amendment in order to pit the rich against the poor. By limiting his amendment to two acre lots, he is further narrowing VNA’s future placement of hospice houses. More importantly, the benefit of hospice houses has now been limited to more affluent neighborhoods, don’t less affluent ones need hospice care too?

Class

Isolating effect of limitation to 2-acre lots: may not be as much of an issue because patients will learn of the hospice from their doctors and won’t need to travel too and fro once admitted.

Have to look for 2-acre lots in the future, hard to find in more densely populated areas. If find ½ acre lot somewhere else, the limitation can be used against VNA.

Reason to do it is that the end justifies the means, can’t gloss over the idea that VNA’s first entry into landuse regulation has limited it to 2-acre lots and put N’s in other areas. Going against what your client wants. Margolin will then have to go down and explain:



  • walk don’t run defense

  • justifiable strategically, can explain later

Ethical question, whether or not a lawyer can be advocating something which he is simultaneously calling illegal in the lawsuit.

  • want to avoid being accused of exclusionary zoning

  • VNA has no monopoly on hospices, any one else could come along and open a hospice.

  • Problem with saying you can’t regulate hospices, then propose a regulation to impact hospices.

  • There is no ethical problem, it should concern us because we are saying one thing in one forum then exactly the opposite in another forum, loading both arguments with moralistic rhetoric makes you look like a devious person. Might be a moral issue.

The amendment passed as we had devised it, overwhelmingly. Twist and turns involving Stanley Tippett and his widow. Margolin was able to skillfully pit the lower middle class against the wealthy by exagerating their envy and resentment.

What if it were not class? Is anybody troubled by the idea of Margolin going in and pitting one group against the other? Exascerbating tensions in the community for his own ends, then leaves.

The lawyers job is to present their clients perspective in a forum set up for that type of conflict.

How to deal with the idea of aids? Many people who die from AIDS, die from cancer. Thought part of the reaction of the neighbors was the possibility of AIDS patients. Should they give a truthful answer



  1. After reading VNA’s arguments to the Zoning Board of Appeals and the land court, do you think its proposed zoning amendment is constitutional? Are there any other problems with it?

  2. What type of opposition do you anticipate from the South Street neighbors at the town meeting? Vocal.

4/21

Exclusionary Zoning

Bilbar Construction Co. v. Easttown Township Board

Facts: a developer is bringing this case. Classic zoning/takings issue. HE has a half acre lot, he wants to get a building permit in a one acre zone area. HE is denied. Why would he try to get a permit, because he wanted to bring a lawsuit. He wanted to be able to build on half acre lots. He wanted to make money. He could make more money building equal sized homes on smaller lots, than on larger lots.

Issue: what is the harm, what is his right that was taken away? A taking of his property. Remind you of Euclid, the similar to that case. Big difference, in Euclid the person owned the land before it was zoned, Ambler realty had a real complaint. Bilbar bought the land zoned one acre. Similar to South Street, City of Eastlake.

The people in South Street would argue that the current zoning they bought the house in should allow a hospice house. Should not have been astonished that they ran into problems.

In City of Eastlake, Forest Enterprises had bought the property then asked for a rezoning. This is even more frontal, not asking for a rezoning. Would be nice to know who financed this litigation, one company, or broader range of companies. Had the case been won, would have opened the housing market substantially.

Rule: the case wasn’t won. Difficulty identifying what the damage is, what is the harm. This person, analogize to private restrictions – Tulk v. Moxhay, knew there were private restrictions, then tried to get out of them to increase the value of his land. Not playing fair and square.

Justifications for one-acre zoning:


  • lower taxes

  • additional police and fire would be required with half acre lots. Is this always true? See Ramapo, Petaluma. Give some sense of the city planning side of services. If you have 2 acre or 1 acre lots spread out, that’s the most expensive way to deliver services. A single family house requires a sewage line, police and fire protection, roads. The more diffuse the more it cost for all of these services. If you plan for density with the provision of services, the opposite.

  • Dense population would be unsafe in case of an atomic attack.

Which aspect of the police power did the one acre lots vest? The right to infringe on anybody’s freedom. Can do what you want unless there is some kind of restriction. All of those restrictions come out of the police power

  • health, safety, morals, and the general welfare

  • Atomic attack possibility goes to safety aspect of the police power.

  • Morals, good people live in large house on big lots.

  • Zoning decreases economic activity, loss of wealth.

  • Zoning will bring in rich people, fewer of them but each lot will cost more.

  • Its all about taxes, in 1958, not clear where taxes fits in here. Keeping taxes low, not clear where it fits under general welfare?

  • Never seen a court go through and specify to which aspect of the police power they are referring to, getting power from.

Attack on the police power, this takes my property, look at from the point of view of the impact on the property owner. If the regulation has a rational connection with the police power, anything can go in here. The limitation is not these categories, it is when it bumps up against another right. Local governments can do what they want, they don’t have to show a desire to “regulate lot size.” States have said this is perfectly permissible under the name of the police power undifferentiation.

There is no differentiation, just say there is a line, if it’s a valid exercise of the police power, then no matter how much it diminishes a person’s property, there is no compensation. If it goes beyond the police power, it is considered a taking of property, abuse of the police power. Not a bright line test, extremely politicized, depends on who is sitting on the court at the time. Determined by looking at the impact on the person’s property.

In PA Coal the court list a series of cases which PA Coal is not, where the legislature says you cannot have a brewery, your property as a brewery is now worthless, the court has said that is fine; brickyard/brothel. Within the police power, don’t have to give compensation though wiped out totally the person’s property.

Eminent domain is when the state says I am going to take your property. Can justify taking property to do something under the police power.

Two ways to get open land:


  • eminent domain: have to give land will be compensated for it.

  • Regulations: In order to pursue the general welfare, morals, health, safety we want low density, no lots smaller than 4 acres. Exercise of the police power. This regulation is limited by other rights. Here the right to property.

Cities will try to get something for nothing. Low density, less children, rich people. Put the burden of that, the cost of all of it, on individuals rather than on the town itself. Would raise taxes.

In these cases see the growth of large lot zoning, attempt to keep a very low tax rate.

Bilbar didn’t claim any difficulty in selling his lots. Important point.


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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