may preserve farmland. Not clear that half acre lots will take away farming land.
Proper sewage disposal
Preservation of open space
The best way to get this is not 2-4 acre zoning. Should zone rural, or buy a conservation easement, have to pay. Don’t want to do this. If you want to have a particular character lot size restrictions won’t do it. People will come in and buy the land and build new homes that look different from houses trying to preserve. If really want to preserve have to buy the property. Its simple but its costly.
Have to take title, give fair market value – eminent domain, can only be done for public use. As broadly defined as the police power.
In Hawaii, the state took all the land and gave it back to the long term lease holders as fee simple.
In PA Coal case, the court is saying the regulation has become so severe that it amounts to taking the land from the person and not paying them. Against the constitution.
Nor shall private property be taken for public use: use to mean you can do anything with private property but take the title. Could take the property and the title and not pay a cent because what you did with it increased the remaining property values so you could off set. Started to change in the 20th century.
The courts are saying now as regulation goes to far we will cut it back and say you have to pay for it. In PA Coal, it held this at this time in a powerful opinion. PA wrote another statute, applied the no subsidence standard to all property whether or not it was a split fee. Where there is a split fee and there was a private deal the coal minor cannot take the support state out. For environmental reasons we don’t want land subsidence. Broader, not focused on contract deal.
PA Coal important because said if the magnitude of loss to individual gets past a certain point, Holmes said 100%, absent some other justification – nuisance - you will have to compensated. No longer valid exercise of the police power.
Hard to say which aspect of the police power is involved. Refreshingly candid to say low taxes is general welfare but the relationship is vague.
National Land still dealing with a land owenr saying you are regulating my land so severly that you should have to pay me. Just take it because I can’t make a fair return on my property.
Rule: This is the turn, the court says you are not justifying that 4 acre zoning. WE will look at your justification. No rational relationship between the four acres and the reasons you mentioned. Looks like you are doing it for some other reasons:
Upham perspective: but it is for the public welfare. The problem is that the power doesn’t come from Easton. Should be looking at the general welfare of the citizens of PA, Easttown not a sovereign entity. Only the sovereign entity has the police power.
Mt. Laurel I
Says the same thing but in a more powerful way. But different because no longer the developer who is saying you have restricted my property rights. Developer is another word for a land owner. When the developer was involved, someone inside is saying violation of my property rights.
Facts: Here have outsiders, Springfield, not allowed to rebuild substandard housing but couldn’t because it was zoned to get rid of them. Hooked up with a coalition of people outside town.
Rule: Based on constitutional premise that localities cannot pursue through regulation private interest. Zoning had departd from puruit of general welfare and became pursuit of private interest of people within the town.
Localities accomplishing this through illegal means, through the cheapest possible way. The private developers don’t have police power to get things for nothing, have to buy the property. Public gov’t. can exclude by passing an ordinance.
And we mean it. WE are setting up a special judicial system to take care of this. Watching closely, won’t get away with it. Hard to buck local government. Resisted this change.
Now have communities taking care of their Mt. Laurel fair share by paying money to other townships to build sub standard housing.
Isn’t Reid pursuing just as private an end as Mt. Laurel in having a certain lot size.
Times change, ideas change. The view of what is permissible in zoning, is that if there is movement, it is becoming more restrictive.
Maybe the Reid case would go differently now, justifiable if you accept the gov’t. limiting individual’s freedom of expression in some ways. There is no question that Reid was going to harm the people around her. There property values were going to go down if she was allowed to build that house. That is a general welfare argument.
Doesn’t change when you point out that the general welfare has to be the general welfare of the state. There is not a fair share requirement for modular homes. Absent in the Reid case is the sense of exclusion. Mt. Laurel is positively excluding people or not serving the general welfare.
Takings (2 weeks)
Chapter 22 (pp. 1265-1285 and 1300-1317) and distributed cases
Miller v. Schoene
Facts: Sick cedar trees. P lost the ornamental value of the trees, so that others could make money on their apple orchards. Is not a public interest, he should not suffer the loss of the property loss in the value of his cedar trees. He can no longer grow these trees since they are a clear threat to the apple orchards. P was not compensated for the loss. The trees were infected, though not clear by statute that they have to be infected.
Issue: the state is saying we prefer people with apple trees to people with cedar trees.
Rule: this is OK, have to make choices, no big deal. If could show that this was a nuisance case, would be able to show a stronger public interest. Government plays two roles:
If its possible for Virginia to choose the apple industry over people with cedar trees, could a state with a strong dairy industry to outlaw margarine. (Wisconsin) In the public interest to benefit the more productive use. Making an assumption about what the public valued based on wealth maximization. Here putting the value of the wealth to a private interest over another private interest.
The legislature says its public interest, that’s how you find out what the predominate view of the state of VA is. Could have decided to tax the apple growers to compensate the owners of cedar trees for their destruction.
Public road becomes the property of the town of Farmington, do we pay the Cushmans for their property. Yes, private land taken for a public use, must be compensated under the Fifth Amendment.
Might question why they should be compensated, will get a higher value for the land since now there is a road.
Late 19th Century when the gov’t. started to compensate for these things.