Private Land Use Controls

South Street – Five and Six

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South Street – Five and Six

Parts five and six: part at the end about the building code. Levigne still has arrows in his quiver, even though he has lost the war, still some battles to be fought. Ingenious stuff in the letters from the Asst. Attorney General to the town clerk in Needham.

One of the problems was that the amendment was arguably unconstitutional, raise the issue of whether that was a problem for a lawyer to advocate something that he believed was illegal. The other idea, what could the opposition do about it. Even if it was illegal, if advocating something likely to be found illegal, possibility that it will be struck down by the court before you will be able to build the hospice. Why wasn’t Margolin worried about this?

What would happen if the amendment was declared unconstitutional and illegal? VNA would get judicial review anyway. Would still get to build at 920.

  • Would be unconstitutional because two acres lots are exclusionary. Exclusionary to say that hospice can only be built if you have a two-acre lot, would not be reasonable accomodation to disabled people.

  • Levigne interpreted the old by-law to require a special permit to have a hospice house. Could argue that SP is a reasonable accommodation, if they give it not unconstitutional. But to deny the special permit would inhibit reasonable accommodation.

  • If knock down new amendment, could have SP’s across the board. If they then apply and are turned down would be knocked down as unconstitutional. Would probably get Y’s across the board.

  • The court would look at this and have to make the decision of whether Margolin was right in thinking that hospices were residential, these are residential so they can go in any residential area. If that happened, all that would have happened for the neighbors is that hospices were possible everywhere, but not impossible at 920 South Street.

The AG had the same problem that Margolin had. He is very liberal, very much in favor of hospices. Any amendment or new zoning by-law has to be approved by the AG. Margolin knew this, neighbors knew this. When the amendment came there was this conflict.

  • do you approve it and make the same kind of bad precedent VNA was concerned with, creating an exclusionary zoning restriction?

  • AG got around this by sending a letter noting all of the problems, so we are going to interpret it in a strained way in order to allow hospices in. Another acceptable application of Article 2. Consider this as just saying that 920 is OK, but also means that hospices are OK elsewhere.

  • The town clerk has to respond. “Friendly commentary which is non-binding on Needham.”


Divide takings into a set of possible test. Can be used in any order.

  • Noxious use/benefit to public (Scalia’s opinion notwithstanding)

  • Before we got to post-modernism with Lucas case, this was generally the area that was solid. If it was a noxious use you should prohibit it.

  • Scalia says so indeterminate that its worthless, one persons noxious use is another’s benefit. But it will continue to be a factor.

  • Benefit to the public, flip side of noxious use. Benefit to private interest is wrong, outside the police power.

  • Are you trying to provide a benefit to the public or trying to prevent harm to the public?

Euclid, noxious use is nuisance.

Pennsylvania Coal Case, Holmes opinion.

Starting in late 70’s/80’s hadn’t touched noxious use and idea of valid exercise of police power still called a taking.

Lucas came out of the blue, cases before that had changed takings jurisprudence dramatically. Scalia acknowledges that in the early days of takings, only the actual taking was compensable. Not the idea that uses could be so constrained that the state would have to pay for it. Changed in 19th Cent, Penn Coal and Holmes’ majority opinion.

No controversy that the early cases looked on noxious use as the keystone for the government action. Expanded based on uses that were common law nuisances – brewery, quarry, brickyard – not ordinarily common law nuisances depends on where they are found. Transition from core of nuisance to apt. buildings, live entertainment, signs was easy because distinction between harm preventing and benefit conferring is in the eyes of the beholder.

Noxious Use Approach: Like Yellowstone, consistent with Sax’s view, ecological view of land. If you build on these barrier islands it will do something which will cause something bad to happen elsewhere. In order to prevent the bad, have to prevent building.

Benefit Conferring Approach:

  • We need vistas along our shorelines, stable dunes, shore lines, beaches to attract tourist. Toursist are the main source of income along the barrier islands. To attract tourist have to keep this area undeveloped. Will build up taxes, etc, from tourist income.

  • In order for the coast to be beautiful need a variety of species, clean water, stability in the stand and beaches, requires a buffer zone where no building can take place to preserve all of the other things.

These approaches are flippable.

Deconstruction/Destabilizing effect of Scalia Opinion in Lucas:

  • Differences between benefit conferring and prevention of harmful use, the distinction is difficult if not impossible to discern on an objective value free basis. Distinction impossible to make in an objective sense. Everyone is bound by their own values.

  • You can play word games and break down distinctions, but there is a legitimacy in the legal system and practices that depend on history. If all of a sudden what has been a keystone of decision makers is taken away by saying this is flippable.

  • At the end of the opinion he imports nuisance doctrine, any given principle or rule is just as flippable as this. This test we have used for a long time is inchoate so we have to go back to nuisance law. Going to set up a categorical rule, because the rules we have been using don’t make any sense. 100% dimunition = compensation based on nuisance law. Factually particularistic. What is a nuisance in one circumstance may not be in another.

  • Institutional problem, now the courts and legislature will have to go back and reevaluate what is a nuisance. This is not static, it can change with new knowledge. One way of changing it is for the legislature to go back and do an ecological study which says that bad things happen when you do this. State plainly what the nuisance is without mentioning tourist industry.

  • The entity which normally decides what is a nuisance or a harm is the state. The fed constitution guarantee’s property, but the state define it. The legislature had defined this as harm, but drafted it in a way that made it look like benefit conferring.

  • NY State opinion in Penn Central, looked at through Lucas land, how much would that land be worth if there weren’t bridges over to the barrier islands? What about the roads, the insurance, the weather forecasting that is necessary. Whole range of benefits conferred on people who own property on the sea shore that makes the property valuable. If his property would be almost valueless, why couldn’t you offset the value conferred against the cost to him.

  • You put a road through someone’s farm, make it more valuable by adding a road through it. Why should the landowner get five times the value of the land and money from the state for making his land more valuable.

  • 5th amend idea that the social contribution to wealth is not going to be considered. The NY State Opinion in Penn Central has a socialist ring.

  • Focus on the idea of the 5th amend, nor shall private property be taken without just compensation. Not just to the private owner, but to the public as well. May be making a mistake by compensating more rather than less than what is just. Unjust to the public to pay that person more because the public has improved property through tax paying.

  • Addressed in special assessment, user fees, exactions.

  • Exactions: When can a planning agency require some one to pay for the cost that he or she is going to impose on the community?

  • Special Assessments: take the property and pay for it, then assess every property owner along the road a special tax which is only imposed on the people who are benefited by the road.

  • Functions got separated, now you compensate in one step, and assess in another.

If it was a common law nuisance or even remotely comparable to a nuisance. Came in initially through Euclid. Scalia undermines this by saying what is noxious to one person is a benefit to another. A destabilizing idea. Not the first person to bring this into land use law, previously in the area of nuisance.

Dell Webb Case, feed lot, opened sun city built up to the feed lot then sued the feed lot for nuisance. In those kinds of issues of what is the noxious use, scholars discussed the idea that residential use may be the noxious use, Sun City asking for air that was fit to breath, no flies, in order to have a feed lot have to impose some cost on surrounding land. In order to have residences, have to impose some cost on the surrounding land – quiet and cleanliness. Hard to say whether Dell Webb won or not. What the court did because people were living in unhealthy area, said Spur Industries had to move but Dell Webb had to pay. Never been done again.

Scalia broke down distinction. Said idea doesn’t work, could flip it around and say residences are noxious. Even if everyone believes it is destabilizable hard to say one is a benefit or a harm. It all comes back to your values. If you agree with that, agree that words and law don’t mean very much.

Lower court will still use noxious use and get around Lucas. Unclear what the impact of Lucas decision will be. Say we all know if this case had gone the other way and Lucas was left with two lots he couldn’t build on and you offered him $1 and lawyer’s cost he would have said no. The fact is that this whole case is premised on something we know to be false, that the property is valueless. Lucas will have no effect whatsoever, because it can always be distinguished on its facts.

Can distinguish Lucas on 100% loss idea.

A zoning system which gave no rights to appeal, to get no variance or other way to amortize use would receive harsher takings review. Prohibition of noxious use is within the police power.

  • Magnitude of the loss

  • Despite Lucas dissent, discussion of the magnitude of loss was a well-established factor in takings jurisprudence.

  • The more you lose the more the court will think of this as an unconstitutional taking.

Penn Coal Co., the key concept here is the denominator. Denominator is the one on the bottom. If the property in Penn Coal being regulated, put in the denominator, is the entire lot – air, surface, subsurface, support estate – have a big denominator. If take away support estate. Have little over big. If you define the support state as the denominator, have little over little. Have a total wipeout. All of it is gone. 100% diminution in value. Not in Lucas terms.

Brandeis said you look at the whole lot, just because you sell off everything but one stick in bundle of property rights and the regulation takes away one stick because you have transferred your other rights, not a wipe out. Penn Central trying to sell off its air rights. Saying our air rights are now worthless, we were going to sell them. They are our property and now they are 100% gone. The majority says the air rights are just part of the whole parcel and that includes the building that is still there, includes everything there before.

What is in the denominator is the key factor in determining mag of loss, can get 100% of loss be defining the denominator.

  • Reciprocity of advantage

  • If all of the cost is put on one person and that person is not benefited by the law then there is no reciprocity of advantage. The regulation is part of a scheme, don’t need uniformity, need universality (Buffalo Academy).

  • Want all the lots to be roughly benefited and burdened to the same magnitude. Can’t put all of the loss on a few unless they are also benefited by the plan. (Penn Central)

Upholds zoning. A very strong support is the idea that everyone has burdens and benefits, don’t have to be identical, but has to be there.

PennCentral says you can single out individual property and still not lose the reciprocity advantage. Because there were 399 other landmark properties. Also reciprocity advantage with the district and through the entire land use plan with the city.

  • Prohibitor/proprietor

  • Similar to noxious use/benefit to public distinction.

  • If what the state is doing is prohibiting something, that is alright. If what is being prohibited comes under a noxious use. – good to prohibit something that is noxious.

  • Proprietor is doing something which is providing a benefit to the public – bad to provide a benefit without paying for. Scalia says just a matter of phrasing.

  • Enterprise/arbitral

  • Adds a twist that helps explain the Miller Case (cedar trees/apple orchard). All the state was doing there was arbitrating between two incompatible uses. The court can come in and arbitrate among them.

  • If heavy industry and apt buildings are incompatible the state can arbitrate between them.

  • Versus trying to provide a good to the public and placing the cost of that good on a discrete number of individuals without paying the cost.

  • Classic example are the parking lots in downtown. If you want parking spaces to benefit the city, the city should pay for it through tax dollars. The lack of parking is not a noxious use. Not arbitrating between different incompatible uses, just providing something the city needs. Shouldn’t make one subset pay for it. Could tell new businesses if you want to open, have to provide parking – enterprise use.

  • Yellowstone, ecologically not complete, in order to make the park work have to burden the land around it. If you are doing that for general environmental purpose, noxious use. That ‘s ok. If making those around the park to bear a burden not applied elsewhere, to benefit the public. Telling them they have to subsidize yellowstone. Enlisting private lands into a public purpose.

Miller is the best case for this. Reciprocity of advantage also fits this idea. Restricting some one in a way that makes the entire planned area better off. Although this persons land is burdened in a particular way it is also benefited.

No distinction between proprietor, enterprise, benefit to public – adds to the chance that the court will find that compensation wasn’t paid. Illegitimate use of the police power to get for the public a benefit that it should pay for. Unconstitutional.

  • Expectations – investment backed, reasonable

  • Classic Case is Penn Central. The expectation is that you will be able to run it as a railroad. Even though they couldn’t do that.

  • Are your reasonable expectations going to be thwarted?

Penn Central, reasonable expectations to use it as a train station. Not unreasoanble to want to build something else. But if not allowed, can’t argue that their property is being taken.

Eastlake, what were Forest Enterprises reasonable expectations when they bought the land? To use it for whatever it was zoned for. In addition, the concurring opinion would say there was also an expectation to have any attempts to change that existing permitted use treated in accordance with due process. The majority would say that a referendum is due process.

  • Nature of Government Action (physical invasion/intrusion – Loretto Case)

  • If it’s a physical invasion, no matter how small, the courts are likely to consider it a taking.

  • Her building was probably worth more with cable, so why pay her a dollar.


Final Exam:

- Upham will have a review session.

- Sample answers for mid-term.

- Property Final is open-book

- Very strict page limitations

- Will cover: covenants, zoning, takings. Covenants will look at planned unit developments, includes easments

- Issue spotter on covenants and takings, short answer on zoning (south street)

  • Zoning and takings could be combined.

Ehrlich v. City of Culver City

Assigned because it sets forth the doctrines in the Nolan and Dolan U.S. S Ct cases which are with Lucas the last three influential takings cases from court. Also applies it to a different setting. A situation where land is not being taken – possessory. In both cases the title was not taken, just an easment. Nolans and Dolans were required to let strangers go onto their land in return for getting a permit to build on their land.

This case extends that to monetary exaction. California court makes the assumption that even purely monetary exactions will also come under the Nolan/Dollan rubric.

Concurrence presents Mosque views he would deal with it as an assessment but if that is true why not dissenting.


Address what local governments have been doing forever.

Special Assessments: whenever there is a new development there is a substantial cost to the community. Need uniform plan, rough proportionality, reciprocity of benefits and burdens. Can’t have a plan if you make exceptions. Doesn’t look like plan, looks like have to bribe to let you build. Could be an out and out bribe, or it could be bargaining as in this case and Nolan/Dollan.

Local municipalities still have power to restrict and monitor growth, they do that because if you have a town where there are few social/public services and somebody is able to buy 300 acres to develop, not driven by a plan, all of a sudden you have a dramatically new and different demand on city/county services. Not just the added population, its where that population goes.

Can address with

  • comprehensive plan

  • allow growth where it will have impact on cost of city services, existing taxpayers will have to subsidize new taxpayers. Local citizens don’t like to do this. Pressure not to tax them.

  • Exactions: Make new comers pay for the cost they are going to impose on the community. Not shocking when think about the cost on local government.

Unclear where Nolan/Dollan/Lucas are going to go. Would require a dramatic change in local government if these legitimate exactions are not permitted. Would also require overturning the language in Nolan/Dollan about how exactions can be done with the underlying assumption that they are ok.

Nolan/Dollan on exactions:

  • essential nexxus

  • rough proportionality

  • Logical affinity, included both test

  • Nolan says, it has to have something to do with the permit. You have to qualify for the permit, that is still necessary building must comply with requirements. You have to pay money or dedicate land, etc.

  • What you are required to do must have something to do with the criteria for granting or refusing the permit

  • Shocking when it came down for two reasons:

  • Easment across the beach has something to do with the beach. Even though the offered rationale was that we don’t want to block the ocean. Not a tight logical fit but it has to do with the beach. Exactions have gone beyond that, you’ve got to purchase it. Said the essential nexus has to be logical one as well, just having to do with the same parcel is not enough.

  • U.S. S. Ct. has historically stayed as far away from local issues as it could. The most obvious departure from this is civil rights in local school cases. But Nolan surprised people by the depth of interest/courage to go into local gov’t. activities. The entry into it, is takings.

  • Dollan adds to Nolan, and we mean it. There has to be some logical nexus (Nolan) and you have to be able to back that up with some reasonably competent individuated calculus of what the exaction is going to be.

  • Not just logically related to permit

  • Has to also be roughly proportional to the burden and the roughly proportional has to be reasonably proven.

  • Wonder why P is doing this? Oregon is famous for planning. What is she losing? She wanted to extend and pave her previously unpaved parking lot. Paving exascerbates drainage problems, clear that going to increase flow of water into a stream. No question that they could prevent her from building. Could make her provide a greenbelt for those environmental reasons.

  • The city wanted to put in a bike path that would allow more people to come to her store.

  • She decided to fight it.

  • S. Ct. said there is no reason to argue with this. NO reason a private greebelt would be any less effective that a public one. The bikeway, have to show how this is going to help in any way with protection.

  • Art fees are OK like set backs. Who could be against aesthetic zoning? At this time, no one.

What are they talking about? First footnote in the case:

“A specific plan implements and refines the general plan by allowing for greater specificity as to permissible uses.”

  • Sounds like can only use it for tennis courts.

  • The city can make this landowner pay it for the loss of this recreational facility.

  • Struck down on Dolan, not because an exaction but because hadn’t explained it well enough.

  • Court says Greenbelts are fine if they are private, no reason to make it public.

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
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