Property Outline Spring 2011 as of 4/12

Attack List: (capricious contrary to the rules of law)

Who are the parties? Private or govt?

At least one party is the govt OR a corp acting under the auspices of govt authorization: 1. What kind of invasion was it? 2. Is it a taking???? Authorized by? o How does that relate to the taking? Was title acquired? If yes, taking o ED- govt action o Legitimate public use allowing govt to take & pay? Rational relationship easy to meet Intermediate test in cases where a fundamental right/interest is at stake strict scrutiny suspect class involved Loretto - permanent physical occupation? Lucas 100% bar to use & not preventing CL nuisance? Nollan Dolan lack of essential nexus & rough proportionality? Penn Central Economic Impact, IBE, character of govt action Has the regulation gone too far? If taking, was the compensation given just? ( not necessarily $, could be property rights) 3. Zoning regulation???? Authorization? HSW? o Arbitrary and capricious? If yes, no authority. Look at regulation cooperation w/ constitution o Start w/ rational relationship, then go up to intermediate Renton test if there is a fundamental right/ interest and even further up to strict scrutiny if a suspect group is at stake o Is it content based use strict scrutiny o Is it content neutral use Renton test ( a bit more than rational relationship) Rezoning must be able to withstand judicial review Fasano o Spot zoning? o Variance? o Special exception? o Nonconforming use? Nuisance: Is interfering with s use of land (private nuisance) or is causing injury to the public generally (public nuisance)? Look at both why and why not interfered w/ s use and enjoyment of s land/interest Look at how affected large numbers of public Compare social utility and benefits for both sides and contemplate why each could be possible, or not possible as a court ruling. Both parties are private (individual or corp) 1. Look @ grant. Express statement? Implied situation? 2. Express easement must be in writing Define who is ST DT Negative or Affirmative? Clarify - appurtenant or in gross Transferred? Yes? Was it transferrable? W/in allowable scope or use beyond acceptable? Properly maintained? Is that an issue? 3. Implied easement does not need to be in writing Implication common O, PAU, reas. Necessary? Easement of light & air? Necessity strictly needed, Common O, @TG- caused by G Prescription Adverse use, Continuous/uninterrupted/tacking of DT Estoppel Go up to analysis above

4. License? Irrevocable? o Does it appear to be an easement but for a lack of writing? o Has licensee spent substantial $ in reliance 5. CCR - Covenant? must be in writing as per SOF Affirmative or negative? Intent to create a CCR running w/land? Is there privity (reqd old time, now need only notice) Was buyer on notice? o Actual or constructive? Binding on future owners of either parcel unless intent otherwise is shown T&C?

6. Was the easement or covenant terminated or amended? Express Unenforceable for failure to meet elements Merger O owns both ST & DT Abandonment w/ requisite intent to abandon Prescription Abuse exceeding scope Mutual agreement Changed conditions ED?

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I. Easements A. A privilege to use the land of another i. Affirmative easement entitling holder to do something on anothers land ii. Negative easement enables holder to prevent O from making certain uses of that land B. Appurtenant benefits its holder in the use of a certain piece of land i. Dominant tenement the land benefitted by the easement ii. Servient tenement the land burdened by the easement C. In gross a benefit not tied to a piece of land benefits a specific person D. Profit right to go onto the land of another and remove the soil or a product of it i. Minerals, oil, wild game, fish E. Creation of easements: i. Express 1. Created by will or deed 2. SofF = must be writing 3. Reservation in grantor O conveys land to B, O reserves an easement in the land 4. Creation in stranger to deed old, abandoned CL rule banning O from conveying land to A and an easement to B. a. Modern courts abandon rule majority ii. Implication 1. does not need to satisfy the statute of frauds 2. these THREE ELEMENTS MUST ALL BE MET a. land severed from a common owner that is subdivided and sold to different grantees b. the use claimed is the same as before severance as per prior apparent use PAU c. easement is at least reasonably necessary to the enjoyment of what is claimed to be the dominant estate i. courts require a lesser showing of necessity where the easement is created by grant than where the easement is reserved [most courts req that it be strictly necessary b/c it is created in favor of the grantor rather than the grantee] 3. easement of light and air, the right to have ones view remain unobstructed, cannot be created by implication in most states iii. Necessity 1. Does not req PAU a. Use of claimed right of way prior to conveyance not needed as in implied easements 2. elements: a. Necessity must be strict rather than reasonable i. Not to the degree there is absolutely no other choice, but rather w/o easement, property not effectively used without disproportionate effort or expense b. Common ownership prior to conveyance c. Necessity must come into existence at time of and be caused by the conveyances that breaks up the common ownership i. Ex. If at the time of conveyance there is an alternative means of access which later disappears, there is no easement by necessity 3. Landlocked parcels: access to public road only gained via an ajoining property iv. Prescription 1. Gained under principles of AP 2. Statute starts to run when the ST gains a cause of action against the owner of the DT 3. Adverse use not with permission 4. Continuous and uninterrupted 5. Tacking tacking on the dominant side v. Estoppel

Property Outline Spring 2011 as of 4/12

1. Where A allows B to use As land under circumstances where A should reasonably foresee that B will substantially change position believing that this permission will not be revoked, and B in fact changes position Does not require the word easement to be used or revocation Can be oral does not need to satisfy statute of frauds

2. 3. F.

II.

Scope i. Prescriptive determined by look at the use that took place during the statutory period ii. Development of dominant estate court will allow a use that increases due to the normal, foreseeable development of the DT 1. Excessive use is use that unreasonably interferes with the use of the ST a. Viewed in light of the parties original intent/understanding re use iii. Use for benefit of addl property DT normally not allowed to extend use to the benefit of another piece of land, even if he is the owner of that other parcel iv. Servient Owners right to relocate easement J-SPLIT 1. CL approach path of easement is fixed, and SO may not relocated even if no burden on DO 2. Modern approach SO may relocate if doing so doesnt materially inconvenience the DO G. Repair and maintence i. SO not obligated to maintain unless expressly provided ii. DO has right to maintain implied if that maintenance is compatible with the intended use of the easement and does not unreasonably interfere with SOs use of SE 1. SO must contribute to costs of maintenance in the amount proportional to the servient holders share of overall usage benefit from the repairs if all benefit of using easement enjoyed by easement holder, SO will not have to contribute and Do cant collect H. Transfer and subdivision of easements i. Transfer of burden 1. When the title to the servient estate is transferred, the burden of the easement remains with the property ii. Transfer of benefit 1. When the benefit of an easement runs with the land depends on whether in gross or appurtenant 2. Appurtenant normally passes with the transfer of the DE a. Deed is silent = applies even if the deed does not mention the easement b. Subdivision = each lot will be permitted to benefit from easement unless the result is an extreme increase in the burden to the SE 3. In gross a. CL not transferrable b. Modern view made easier to transfer i. Commercial easements: assignment of commercial easements in gross, that is those intended for economic purposes are in almost all courts permitted b/c of expectation of continuation of business ii. Noncommercial easements: rarely couple juris, but most not permit assignment of these, but never when the relationship of parties or lack of compensation for easement suggest lack of intent to allow assignment Licenses A. Right to use the land of another that is revocable at the will of licensor B. Not required to satisfy statute of frauds C. Exceptions to revocability i. Oral license acted upon 1. A license is irrevocable if its use would have been an easement except for failure to meet statute of frauds 2. When the licensee makes substantial expenditures in reliance on the promise that the license will be permanent or long duration

Property Outline Spring 2011 as of 4/12

III. Covenants Running with the land usually a restriction now CCR A. A K btw two parties which is binding against one who later buys the promisors land and/or enforceable by one who later buys the promissees land B. Legal relief money damages for breach, not injunction or other equitable relief C. Statute of frauds must be in writing D. Assume runs with land E. Elements i. Intent parties intended to make the covenant run with land ii. Touch and concern the covenant must touch and concern the land itself, ie must related to use, occupancy or enjoyment of the land iii. Privitiy if this element does not exist, there is no real covenant running with the land 1. Vertical same estate passed down to successors 2. Horizontal - all parties of the original deal Equitable Servitudes/restrictive covenants usually a restriction now CCR A. Restriction on how land will be used residential only ex. B. Enforced at equity specific performance or injunction as relief C. Enforced by whoever the current owner is of any parcel that was intended to be benefitted and against whoever the current owner is of the parcel that was intended to be burdened i. on burdened side owner will only be bound if he had notice of the restriction at time of conveyance/took ownership D. affirmative v negative usually negative, ex building restrictions, but are sometimes affirmative promise to pay HOA fees/dues E. privity not reqd F. running of benefit and burden runs with land on both sides unless there is evidence the original parties intended otherwise burden = binding on future owner of burdened parcel and benefit = enforceable by any future owner of benefitted parcel i. NOTICE is reqd actual [knows regardless of whether in writing] or constructive [recorded but doesnt read or know it was recorded] 1. If restriction is not recorded and buyer did not have actual knowledge notice G. Developers building plan i. Subdivision plat is a recording of the building plan and includes use or building restrictions in the filed plan ii. Does not need to be mentioned in later deeds, as long as the plat filing predates that purchase iii. If plat did not mention restrictions, A purchased a lot, then the plat was amended, A is not bound by restrictions in amendment iv. Implied reciprocal servitudes A acquires land in expectation that he will get the benefit of subsequently created servitudes by developer there is immediately created in him the benefit of an impied reciprocal servitude against developers remaining land 1. Must be in later buys chain of title to bind that person must be express v. Selection of neighbors restrictions enforceable as long as reasonable to scope H. Elements: i. Intent ii. Touch and concern because Adam is anal and an ass iii. notice actual or constructive notice or inquiry notice TERMINATION AND AMENDMENT OF SERVITUDES A. Typically, one must look at how the servitude was created as the termination may occur after a set period of time.

IV.

V.

B. Express in document or terms C. Unenforceable D. Merger: The dominant and servient estates are acquired by the same person. As a result, the servitude is
terminated as you cannot have easement over you own land. THE EASEMENT DOES NOT SPRING BACK INTO EXISTENCE IF LAND IS SOLD OFF.

Property Outline Spring 2011 as of 4/12

E.

Abandonment: Mainly used in easements, the key is that non-use alone will not allow for termination. There

VI.

must be an intention to abandon which is shown on objective basis, i.e. an express statement of intent. 1. Where an easement has been created but not used, the owner of the ST may fence his land and such use will not be deemed adverse to the existence of the easement until a. The need for the right of way arises b. A demand is made by the owner of the DE to open the easement F. Prescription (A.P.): If held for a period of time, it may be adversely possessed and destroyed by the doctrine of merger. i. Maintenance of a fence or structure across AN EXISTING RIGHT OF WAY which bars its use as such for than the prescriptive period will terminate the easement by AP. Here there is no existing right of way it was never opened. G. Abuse of the Easement: One exceeds the scope of the easement and therefore forfeits the easement but this is not really automatic anymore. i. Forfeiture H. Mutual Agreement: Easiest and most common way of terminating servitude. I. Changed Conditions: The benefit to the whole has to disappear. J. Eminent Domain: The courts are split as to whether enforceable. If it is an easement, then group can clearly condemn and destroy the easement and must pay FMV for it. If a restriction, there may not be a need for payment of damages. (A minority of courts hold that restrictive covenants were not property interest for which just compensation must be paid. K. Acquiescence L. Defense arguments against termination include: 1) There was no merger of dominant and servient estates; 2) Easements created by grant are not lost by non-use alone; 3) Where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it, not just non-use (non-use + intention = fact finder); 4) Because of erection of some fence or barricade for more than prescriptive period, the easement was extinguished by adverse possession 5)latches M. Amendments modify the servitude Nuisance A. Private a nontrespassory invasion of anothers interest in the private use and enjoyment of land i. Elements: intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of the s land 1. Interference with s use and enjoyment of land must substantial AND unreasonable a. Unreasonable = determined by balancing of landowners interest i. When the gravity of harm to s U/E outweighs the social utility of s conduct or the condition on s property b. Interference = unreasonable when gravity of harm outweighs social value of the activity alleged to cause the harm 2. s conduct must be either 1) intentional and unreasonable OR 2) negligent, reckless, wanton or unusually hazardous; AND a. Intentional when actor knows or should know that the conduct is causing a substantial and unreasonable interference b. Unintentional when negligent, reckless or abnormally dangerous activities can lead to these i. Negli/reckless falls below expected standards of conduct ii. Abnormally dangerous activities high standard of care strict, or nearly so, liability 3. s conduct must be nontrespassory; 4. The must have an interest in land that is injured by the conduct a. Short term tenancy is sometime enough to meet this element B. Public conduct that causes public injury generally as general rule only govt can enjoin, unless a particular owner had a unique injury may be statutory i. Elements: 1) populous area, 2) dangerous or unhealthy for a specific reason to public at large

Property Outline Spring 2011 as of 4/12

C. Distinctions [trespass private nuisance continuous trespass which becomes a nuisance both together] i. In trespass land is invaded by a tangible physical object which interferes with the right of exclusive possession 1. A walks on or throws a rock on Bs land 2. Many courts now extend trespass liability to include air pollution, toxic contamination, and other entries by microscopic particles, effectively allowing the injured plaintiff to sue on either theory ii. In a private nuisance land is invaded, but not by tangible item but noise or odors that interfere unreasonably with the s use and enjoyment of the land 1. A operates a soap factory within a few feet of Bs house. Noise from As engines and odors from the materials invades Bs bedroom windows 24 hours per day iii. A continuous trespass which becomes a nuisance. 1. A, over a period of time, swings his crane in an arc of Bs land or strings and maintains a wire over Bs land. Historically B could sue A either in trespass or in trespass on the case for maintaining a continuing nuisance. iv. Act is both trespass and a nuisance 1. A builds a dam on his land causing the water in a stream to back up and flood Bs land. B may sue A either in trespass or for maintaining a nuisance. A has invaded Bs land with tangible matter water, and is at the same time interfering substantially and unreasonably with Bs use and enjoyment of his land D. A private nuisance may interfere with: i. The land itself polluting water of a stream or causing the ground to vibrate and shake down the house, or ii. The occupants comfort or health, such as causing smoke or noxious vapors to fill the house, or iii. The occupants peace of mind, such as maintaining a slaughterhouse or dynamite factory E. For a disturbance to be a nuisance = offend the average normal person with ordinary sensibilities F. Unsightliness alone, w/o other elements of harm nuisance i. A maintains an ugly junkyard surrounded by barbed wire fence in a residential neighborhood. No noise, odor vibrations or other objectionable features. not a nuisance ii. PP most likely now prohibited or regulated by zoning ordinances iii. Other jurisdictions have passed enterprise zones or right to farm statutes protecting for example farmer with swine confinement units from being subject to a nuisance action due to odor. G. Nuisance can be temp or perm. i. Temp when active operation is essential to its continuous as a nuisance can only recover for 1) past and 2) present damages. Injunctive relief may also be available 1. a. Not future, because there is no way to be sure of those damages will occur ii. Perm passive and created by durable artificial thing 1. can recover for past, present and future damages H. Use of property (in a way that is a nuisance) is reasonable or unreasonable based on . . . i. Social Utility Test / Balancing Approach 1. Comparing social utility/harmfulness of conduct 2. Use being made of s land and the social utility of that use 3. The character of the neighborhood 4. Time of day/night when interference occurs 5. Frequency and extent of injury 6. Sensitivity of persons affected or the sensitivity off the business affected 7. Benefits at large from the use of s land supposedly causing nuisance a. Effect of s activity on the life, health and property of others. ii. Threshold test 1. Regardless of social benefit, if gross interference and unbearable or impossible, that outweighs any social utility

Property Outline Spring 2011 as of 4/12

proves nuisance does not fully enjoin all activity, just that which is causing the nuisance i. may be entitled to damages or compensation for having to stop causing the nuisance 1. Some courts = injunction 2. Most courts = balance the equities in determining damages 3. Injunction appropriate when a. Harm to outweighs the social utility of s conduct, or b. Where can avoid harm w/o undue hardship, or c. Where s conduct is suited to the locale & the s activity is not ii. May gain prescriptive right to maintain a private nuisance, but the stat of lim begins to run from the time the injury is suffered by not from the time the commits the act, unless at same time. iii. Minority juris RULE OF NECESSITY can escape injunction only if social utility of s primary activity benefits the public at large rather than merely benefiting personally J. Coming to a nuisance is not a defense 1st in time can be relevant or the nuisance may be stopped even if the hog farmer was already there when the landowner built his house i. Right to farm laws statutory protection of coming to nuisance under certain circumstances, not a nuisance VII. Takings govt can use and/or take property using authority (law, regulation, etc) that gives them police power to ensure Health, Safety, and welfare highest and best legal use of property A. Eminent domain 1)property 2)taken for 3)public use with 4)just compensation i. govt can force people to sell their private property for public use ii. As per the 5th amendments takings clause 1. nor shall private property be taken for public use, w/o just compensation a. Applicable to states via 14th amendment iii. Condemnation process by which property is taken and compensation is paid iv. EN when does it rise to the level of a taking? v. Public use EN not @ issue in federal cases, mention but state that as long as it meets the basic requirement of public use, then satisfied. In state cases, depends on state law whether it is public or not 1. Whatever is rationally related to what legislature says is public use 2. cannot be for the benefit of a private individual 3. means for the achievement of a public purpose under a substantive due process analysis 4. Permitted if: a. Related to furtherance of a legitimate purpose b. Even though land would be used by private peeps (Hawaii case) if state had a legitimate purpose (diversifying landowners in Hawaii case) 5. Determining if meets legitimate purpose: a. Rational relationship test is there a rational relationship (any at all and courts will If using strict scrutiny or provide) between the act/reg/law and the objective intermediate as a defense, b. Intermediate theory directed on basis of gender or mental handicap in which case can only do so if you can the connection must be substantial show harm to actual i. Also the renton test with some type of fundamental interest/right (for members of the actual class zoning) the target of the taking c. Strict scrutiny test impinging on suspect class (usual race or natl origin) or fundamental right, legislative objective must be imperative crucial and connection = spot on i. Chinese laundries need compelling objective in order to use ED vi. Just compensation 1. Pay condemnee what property is worth FMV and possibly include moving costs etc a. Could pay more or less depending on the way valuation is done b. Must prove FMV @ highest and best legal use i. Cant use rundown liquor store versus 5 star restaurant if could be higher use, must use that use

I.

If

Property Outline Spring 2011 as of 4/12

ii. Cant calculate a residential price for a commercially zoned property, vice versa For rent only(compensating tenant) just comp= FRV rent due in K, usually the same i. Rent controlled apartment - rent is lower than FRV the court will use the FRV as the amount not the actual rental amount for the rent controlled ii. Usually just pay the rent and you are no longer under obligation to pay 1. Relieves T of K duty to pay rent excuses performance 2. Determining value appraising property 3 different ways to establish the dollar amount received for taking a. Comps comparable property sale prices b. Cost replacement how much to rebuild/replace c. Income approach how much profit the property would be generated i. Only used if property is directly tied to income and cant relocate 3. Undivided fee rule - J-split, the idea that regardless of the value of each estate, the value is the value of the FSA ($10 FSD, $10 PR value of land is $1M, dog park, who gets the value of the land) Inverse condemnation COA brought by landowner claiming action of govt (such as a regulation, law or ordinance) has risen to the level of a taking requiring just comp [if govt is actually using the land = condemnation, this is not actual use] i. 1st ask does govt have authority? [ex. Laws, regulations, zoning, constitution-remember const is a restraint on govt not individuals] govt must be authorized in some way ii. 2nd ask should govt have taken/acted or not? iii. 3rd ask Does it rise to the level of a taking? [things to consider] 1. What is the economic impact of the govt action on the owner 2. Nature of the public interest underlying the govt act 3. And, whether govt action involves physical intrusion or merely regulation iv. any physical occupation, regardless of how minor, is a taking if permanent and must be met with just compensation to be permitted regardless of the public interests served 1. private corp working under auspices of govt 2. more necessary for mailboxes, waterlines and electricity/smoke detectors so these better support the idea of HSW do not usually rise to taking whereas cable box is less necessary for upholding HSW likely to be a taking (Loretto) v. Regulatory takings govt regulation of private property goes too far highly restrictive w/re to land use and controls cant do so in violation of const. such as 1st amendment 1. Determined by looking at whether the restriction on private property forces some people alone to bear the burden of the public which really should be borne by public at large 2. Exactions regulatory action when govt imposes a condition or exaction on a private land owner in return for issuing a building permit 3. Nollan-Dolan Two Step if a taking must pay, this determines if it rises to level of taking so govt can legitimately take the property a. Must satisfy both tests in order to sustain a constitutional challenge b. There must be an essential nexus between the exaction and a legitimate state interest that it serves, AND [if no nexus, cant proceed without payment, if nexus, must also be roughly proportional] c. The exaction must be roughly proportional (degree of connection) to the nature and extend of the projects impact [baby bear test not too loose a connection(although ok in some jurisdictions) not too tight a connection, just right] i. There needs to be a reasonable relationship between the reqd dedication and projects impact vi. Rises to level of taking if it goes too far . . . 1. if trying to take under police powers act must fit within HSW, b/c that would provide authority 2. If rises as below, then reqs compensation, otherwise, just a regulation c.

B.

Property Outline Spring 2011 as of 4/12

Seldom found for O, none are dispositive for O, some are dispositive for showing not a taking though siding with govt b. Basils caveat often court will find a takings in readings but a very good chance that wont be a taking in real world Determining if a taking or not: a. Diminution in value i. PA Coal 1. Diminution in value standard in determining if goes too far a. How much value has been diminished not alone enough, but helps determine if goes too far 2. Public interest why doing this 3. Safety (HSW) 4. Not too far if: a. Average reciprocity of advantage [coal co. does receive a benefit from regulation even if burdened as well] 5. Any regulation to stop nuisance/public harm taking a. Dont read too broadly, not just authority by HSW, but has to be great harm 6. Support estate note 1 pg 875-6 b. Character of govt action c. Public interest (basil hates) d. Average reciprocity getting something in return i. Serves to balance out the exchange person gets a benefit from regulation, even when harmed by regulation, ii. Must cancel out detriment in order to not be a taking iii. TDR transferrable development rights cant use it in that spot, but can transfer rights to someone else in a neighboring property 1. This is a question of just compensation and factual inquiry 2. This can serve as evidence of both a taking and w/re to just compensation e. Investment backed expectation original intended use (if not likely not too far) i. Penn Central balancing test 1. Does not rise to a taking if regulation does not interfere with current use and does not prevent but rather regulates how improvements can be made 2. Denominator problem what to include a. How much of land/rights was taken what percent of the whole? What is the whole we are talking about? Air rights, all land, all properties over a area of land 3. In practice, balancing test means not a taking will never be balanced to that side a. Otherwise is a taking b/c goes too far 4. Too far if . . . a. Interference with investment backed expectations reasonable return i. More interference more likely taking, less less likely 5. Factual inquiry to determine if a taking a. Balancing test looking at factors but those are not dispositive 6. Stop nuisance or noxious use dispositive in not a taking ii. Lucas taking if 100% bar to use and not stopping CL nuisance 1. Not a taking if the regulation does not eliminate a use was not entitled to in the first place a. Must be a 100% bar to use a.

3.

Property Outline Spring 2011 as of 4/12

For a nuisance defense to be successful in a takings COA, the govt must show that how the was using land was a nuisance at the time of the purchase, not at the time a later law created nuisance a. factual analysis 3. Basil cant get to Lucas 4. recall a person cannot be given greater rights than their interest provides C. Zoning constitutional - NIMBY i. Euclidean 1. Use, height, density, occupier, environmental, area, protection of access to light/air 2. Restrict O for HSW of general public 3. Separating uses benefits public b/c keeps industrial nuisance away from residences 4. 1922 Standard Zoning enabling act a. Us dept of commerce 5. States need to delegate authority/police power to local govts for the purpose of zoning via state acts a. Usually these acts permit local govts to: i. adopt comprehensive plan ii. Enact zoning ordinances 1. Legislative function only only elected peeps can do this 2. Any changes to zoning laws/ordinances or rezoning, etc has to be done by this body iii. Delegate administrative authority to an appointed board 1. They can make specific decisions w/re to approving plans w/in the confines set by legislature 2. Make recommendations w/re to the comprehensive plan to the legislative body 3. Cannot make zoning decisions w/re to changes to the comprehensive plan 6. BLL a. Zoning ordinances are presumed constitutional b. Upheld against substantive due process and equal protection attacks unless arbitrary and capricious/unreasonable and not related to protecting HSW i. If arbitrary and capricious, could still take w/o compensation if HSW c. If validity of legislative classification is fairly debatable, legislative judgment controls i. Court will look at legislative intent facially not at the wisdom or value of the intent ii. Brett whether the ordinance is facially unconstitutional or arbitrarily applied 7. May rise to being unconstitutional (p 938) if . . . a. If reduces land value to zero i. As applied to that specific piece of land but citys ordinance not unconst. b/c ordinance is const b/c zoning promotes HSW 1. w/re to that piece of land, zone HSW 8. J-Split cumulative zoning(rare) or exclusive zoning (more common) a. Many states adopted Euclids zones b. Exclusive zoning allows a sewage plant to be protected from mansion i. b/c of coming to a nuisance rules ii. w/re to local municipalities 1. authority? Typically yes via enabling legislation a. home rule giving municipality power in the states constitution or statutes to regulate w/in home territory 2. pay if rises to level of taking 3. arbitrary and capricious not allowed no authority 4. butt heads w/ constitution 1st amdt [Alameda] a. standard of review 2.

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i. rational relationship btw goals of zoning and means not hard to get over ii. really the Renton Test/intermediate test, a bit more than ratl relationship but still not hard to meet [b/c it adds in the reqt of fundamental interest to ratl relationship test] 1. time/place/manner a. attempt to ban completely = goes beyond TPM 2. content neutral/based 3. substantial relationship to a substantial govt interest b. if trying to regulate content rather than a secondary issue [trying to regulate porn and not the increased crime rate associated with large gatherings if immoral peeps] i. requires strict scrutiny standard of review 1. must be absolute no authority 2. unless can show compelling govt reason which is really not possible iii. must be clear in order to stand up against a claim of arbitrary and capricious iv. zoning for aesthetics is allowed v. unprotected speech does not pass strict scrutiny, commercial speech has some protection, political speech has heightened protection vi. Racial Exclusion 1. Can commit act based on race as long as meets strict scrutiny a. Only way to sustain is if passes SS and that wont happen need an absolutely compelling reason 2. Zoning/rezoning based on race allowed, if not + allowed a. Can infer racial intent 3. Equal protection clause (pg 968) requires a level of proof of intent of govt body w/re to racial discrimination a. Burden is heavier on one class v another b. Impact on suspect group = speaks to intent i. Not enough alone, not determinative alone, but together with other factors could be enough to infer racial intent to rezoning c. Violation of FHA presumes racial intent 4. If ordinance does not violate constitution, reqs showing proof of racial discrimination and then must apply strict scrutiny a. Requires a showing of intent b. Historical evidence enough 5. Poor suspect class under due process 6. FHA protects certain groups not discussed here per se 7. Due Process says certain groups (suspect classes) are due a closer look when it appears they are unfairly burdened in some way by ordinance or regulation vii. Economic exclusion 1. Mount Laurel Approach defining community goes beyond just looking at municipal borders the purpose of states delegating zoning is to encourage equitable distribution/proper planning for distribution of peeps and industry D. Changing the rules zoning divides up land, ways to get flexibility on what to do once divided up as per the zoning laws i. Rezone [zoning amendments] 1. Owner has burden to prove: a. there is a public need for the proposed change AND b. the need is best served by rezoning the particular parcel rather than other property 2. Map could be changed and whole areas rezoned, or change to uses allowed in the different zoning levels/areas overall 3. Must be done by a legislative body not appointed as per the delegated duties a. Not usually subject to future judicial scrutiny

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Planning commission can make recommendations, elected officials must do legislative acts c. Otherwise can be seen as being arbitrary and capricious and no relation to HSW which = taking 4. If someone claims rezoning by referendum(electorate) = arbitrary & capricious, all need to show is some reasonable reason for the rezoning b/c facially not violate due process 5. Judicial Review of Zoning amendments how a court will handle the review of a case that comes to court for review a. Vocabulary: i. Judicial action = individual rights typically ii. legislative action = group rights typically iii. quasi-judicial action = individual rights or those of a very small group b. Fasano approach (very small amt of jurisdictions) increases the judicial standard of review i. Zoning amendments = quasi-judicial act NOT legislative ii. NOTE a judicial act can be fully reviewed as to both law and findings of fact iii. the idea here b/c a decision w/re to a single land O is essentially a judicial action and all rezoning decisions are supposed to be legislative actions iv. B/c of stricter review standard must state in writing a reason for the amendment or denial for the amendment 1. b/c once the owner shows that their intended use/purpose for rezoning is consistent w/comprehensive plan and complies with ordinance, city/muni has burden to show that the refusal to rezone is not arbitrary unreasonable or discriminatory 2. Does not need to be the real reason (blue shirt wearers) but just a reason a. Removes need for judicial review of decision w/re to why c. Most jurisdictions (Eastlake nothing in federal constitution reqs zoning amendments be treated in any judicial format) i. Zoning amendments = legislative act ii. A courts inquiry on review is merely whether the agency of commission had a rational basis for what it did iii. Rezoning by referendum is permissible only under this approach, because a populace will not have noted WHY they denied/permitted and in Fasano jurisdictions the only way a decision will meet the stricter scrutiny of judicial review is to state why ii. Spot Zoning [Basil generally invalid] 1. Zoning or rezoning creates a small island which: a. Benefits the owner of zoned land only b. Contrary to comprehensive plan c. No reasonable basis for distinction 2. Use rational relationship test iii. Variance an authorized deviation from strict enforcement of the zoning ordinance in an individual case due to special hardship 1. Permits a parcel to be used in a way that would otherwise violate ordinance 2. Can state invalid as written(difficult but removes from books) or invalid as applied (easier) 3. Must be tied to land not peep 4. Area variance (zoning boards will usually permit and then only seek to justify if complaint) a. Height/location/setback/size/other similar reqts b. Elements J-Split i. Undue hardship 1. Zero reasonable return 2. Difficult to meet b.

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ii. Practical difficulty 1. Must show a. Strict application of ordinance prevents O from using property for purpose otherwise allowed b. Granting variance does not reduce value or impair use of abutting property c. Does not conflict with the general purpose of the ordinance d. Public safety and welfare is protected e. And that the variance does not conflict with the municipalitys comprehensive plan 2. Less strict, easier to meet 3. Does not matter if economic waste 4. If a local govt wants to allow variance, just say it does not conflict, etc. vice versa if want to disallow 5. Use variance 6. Obtaining variance a. Apply b. Board gives notice to the public and conducts a public hearing on the application c. Imposition of restrictions is allowed d. Seen as a quasi-judicial decision e. Far easier to obtain than defend in later litigation and as such are sparingly granted iv. Special exceptions when a use permitted within the zone is restricted for some reason 1. Use that is authorized by the zoning ordinance if specified conditions are met 2. Typically an unusual use that may injure the neighborhood a. Airport school landfill golf course or hospital b. Potential issues such as traffic, noise, odor, density, property value impact etc 3. Reflects a legislative decision that while the particular use appropriate to the zone as a general matter certain restrictions are needed to ensure that it does not harm surrounding uses at its specific location 4. Can be based on lot size, distance from water, distance from residence, distance from school (such as a bar or adult store) v. Nonconforming use based on the idea that zoning effects future development 1. Grandfathered in prior nonconforming use is permitted to continue (to a certain extent) 2. Most ordinances bar expansion of a nonconforming use a. New addition, expansion b. Also dont allow transformation into a new nonconforming use 3. terminates a. abandonment (most jurisdictions) i. if owner intends to abandon the use AND the use is discontinued for a substantial period of time 1. some courts set a time for discontinued use and do away entirely w/intent of O a. the idea in basils rental example in class b. not allow nonconforming use period, ex. condemn but then have to pay c. keep until change of O d. cant rebuild e. cant expand/enlarge f. cant repair g. amortization deadline for when the nonconforming use stops i. allows for recovery of investment to minimize being found as a taking ii. valid as long as reasonable (some jurisdictions) 1. not based on mathematical analysis of recouping investment

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rather on a. amt of Os investment b. nature of nonconforming use c. remaining useful life d. harm to public if use continues iii. unconstitutional in other jurisdictions 1. nonconforming use can only be eliminated when getting rid of a nuisance or abandoned/destroyed/or purchased via ED h. caught in the middle under construction but not open i. depends on the jurisdiction w/re to vested rights and substantial reliance ii. if shut down, complain in court that it is a taking dont confuse nonconforming use w/variance when considering the running with the land conditions on use can be placed, but can only be connected to the property cant tie to a person 2.

4. 5.

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