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Nuisance

...................................................................... 11
Private .......................................................................... 11
Page County Appliance Center v. Honeywell (IA 1984) 11
Dobbs v. Wiggins (IL 2010) ........................................... 11
Public ............................................................................ 11
Connecticut v. AEP (CT 2009) ....................................... 11

PROP MINZ CASE LIST


Trespass, Public Access ................................................... 2
State v. Shack (NJ 1971) ................................................. 2
Uston v. Resorts (NJ) ...................................................... 2
Statutory Limits on Trespass (Anti-Discrimination) ......... 2
Federal Civil Rights Act of 1964, Title II (p. 33) .............. 2
NJ LAD (p. 40) ................................................................. 3
NY Executive Law (p. 48) ................................................ 3
Dale v. Boy Scouts (NJ 1999) .......................................... 3

Landlord-Tenant Law .................................................... 12


Leasehold Estates ......................................................... 12
Vasquez v. Glassboro (NJ 1980) ................................... 12
Conflicts about Rent ..................................................... 12
Sommer v. Kridel (NJ 1977) ......................................... 12
Braschi v. Stahl (NY 1989) ............................................ 12
Conflicts about Occupancy ............................................ 13
Kendall v. Ernest Pestana (CA 1985) ............................ 13
Slavin v. Rent Control Board (MA 1990) ...................... 13

Constitutional Limits on Trespass (Free Speech,


Association) ................................................................... 4
Boy Scouts v. Dale (US 2000) ......................................... 4
Lloyd v. Tanner (US 1972) .............................................. 4
Marsh v. Alabama (US 1946) ......................................... 4
NJ Coalition v. JMB Realty (NJ 1994) .............................. 4
State v. Schmid (NJ 1980) .............................................. 4

Habitable Premises (Constructive Eviction, Implied


Warranty) ..................................................................... 14
Covenant of Quiet Enjoyment ....................................... 14
3000 B.C. v. Bowman Properties (PA 2008) ................. 14
Implied Warranty of Habitability ................................... 14
Minjak v. Randolph (NY 1998) ..................................... 14
Javins v. First National Realty Group (DC 1970) ........... 14

Adverse Possession ........................................................ 5


Brown v. Gobble (W. Va. 1996) ..................................... 5
Nome 2000 v. Fagerstrom (AK 1990) ............................. 5
Easements ...................................................................... 6
Prescriptive ..................................................................... 6
Community Feed v. NE Culvert (VT 1989) ...................... 6
Estoppel .......................................................................... 6
Holbrook v. Taylor (KY 1976) ......................................... 6
Necessity ........................................................................ 6
Finn v. Williams (IL 1951) ............................................... 6

Zoning .......................................................................... 15
Equal Protection and Due Process ................................. 15
Euclid v. Ambler (US 1926) .......................................... 15
Stoyanoff v. Berkeley (MO 1970) ................................. 15
Anderson v. City of Issaquah (WA 1993) ..................... 15
Willowbrook v. Olech (US 2000) .................................. 16
Bonner v. Brighton (MI 2014) ...................................... 16
Village of Belle Terre v. Boraas (US 1974) .................... 16
Moore v. City of East Cleveland (US 1977) .................. 16
Prior Non-Conforming Uses, Vested Rights, and Variances
..................................................................................... 17
Town of Belleville v. Parrillos, Inc. (NJ 1980) .............. 17
Stone v. Wilton (IA 1983) ............................................. 17
Krummenacher v. Minnetonka (MN 2010) .................. 17

Appurtenant v. In Gross ................................................. 7


Green v. Lupo (WA 1982) ............................................... 7
Cox v. Glenbrook (NV 1962) ........................................... 7
Henley v. Continental Cablevision (MO 1985) ............... 7
Real Covenants and Equitable Servitudes ....................... 8
Davidson Bros. v. Katz & Sons (NJ 1990) ........................ 8
Blevins v. Barry (MO 1986) ............................................ 8
Modifying and Terminating Covenants ........................... 8
El Di v. Town of Bethany (DE) ........................................ 8

Takings ......................................................................... 18
General ......................................................................... 18
Miller v. Schoene (US 1928) ......................................... 18
Penn Central v. NYC (US 1978) .................................... 18
Physical Invasions (Per Se) ............................................ 18
PruneYard v. Robins (US 1980) .................................... 18
Loretto v. Teleprompter (US 1982) .............................. 18
Deprivation of Economic Benefit ................................... 19
Lucas v. SC Coastal (US 1992) ...................................... 19
Tahoe-Sierra (US 2002) ................................................ 19
Public Use ..................................................................... 20
Kelo v. City of New London (US 2005) ......................... 20
Berman v. Parker (US) .................................................. 20
Hawaii Housing Authority v. Midkiff (US) .................... 20
Goldstein v. NYS Urban Dev. (NY 2009) ....................... 20

HOAs and Condominiums ............................................... 9


General ........................................................................... 9
Neponsit v. Emigrant (NY 1938) ..................................... 9
Nahrstedt v. Lakeside Condo (CA 1994) ........................ 9
OBuck v. Cottonwood (AK 1988) .................................. 9
Woodside v. Jahren (FL 2002) ........................................ 9
Constitutional Claims .................................................... 10
Neuman v. Grandview (FL 2003) .................................. 10
City of Ladue v. Gilleo (US 1994) .................................. 10
Dublirer v. 2000 Linwood Ave (NJ 2014) ...................... 10
Mazdabrook (NJ) .......................................................... 10
Twin Rivers (NJ) ........................................................... 10
Water (Diffuse Surface Water, Flooding) ...................... 11
Armstrong v. Francis Corp. (NJ 1956) .......................... 11

Civil Forfeiture .............................................................. 20


Bennis v. Michigan (US 1996) ...................................... 20

Trespass, Public Access


State v. Shack (NJ
1971)

Uston v. Resorts
(NJ)

Medical worker and attorney were trying to provide care and legal advice to migrant farm
workers but were denied access to migrant farm workers who were living on the farm by the
property owner, who called the police to file trespass charges.
Broad H: Owner cannot "deny worker his privacy or interfere with his opportunity to live
with dignity and enjoy associations customary among our citizens. These rights are too
fundamental to be denied on the basis of an interest in real property."
a. This extended the scope of "necessity" under common law exceptions
b. Balance between property rights and societal needs/interests
Narrow H: "No legitimate interest for a right in the farmer to deny the worker the
opportunity for aid available from federal, state, or local services, or from recognized
charitable groups seeking to assist him. Hence representatives of these agencies and
organizations may enter upon the premises to seek out the worker in his living quarters."
Employer may regulate entry - not the court's purpose to open land to the public
counts cards. banned from casino.
H: "Property owners have no legitimate interest in unreasonably excluding particular
members of the public when they open their premises for public use." "Whether a decision
to exclude is reasonable must be determined from the facts of each case."
Extended right of reasonable access to private property open to the public (to all businesses, not
just inns and common carriers)
Examples of reasonable exclusion: threat to security, disruption of business ops


Statutory Limits on Trespass (Anti-Discrimination)
Federal Civil Rights
Act of 1964, Title II
(p. 33)

Equal Access - No discrimination or segregation on the ground of race, color, religion, or


national origin. Sex not included. "All persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and accommodations of any place of
public accommodation, as defined in this section."
a. Places of public accommodation:
i. Hotels and other lodging for temporary guests
ii. Restaurants and other facilities "principally engaged in selling food for
consumption on the premises, including, but not limited to, any such facility
located on the premises of any retail establishment; or any gasoline station"
iii. Places of entertainment
iv. Any place physically located within one of the above
v. Any place that has one of the above located within it
b. Does not include a "private club or other establishment not in fact open to the public"
c. Retail stores? Courts are divided on whether this list is exhaustive or illustrative.
Many states have enacted more expansive policies
d. Elements to file suit
vi. Discrimination
vii. Race/color/religion/national origin
viii. Place of public accommodation
1. On list
2. Affect commerce / supported by state action
3. Open to the public (not a private establishment)

NJ LAD (p. 40)

NY Executive Law
(p. 48)

Dale v. Boy Scouts


(NJ 1999)

No discrimination "against any of its inhabitants, because of race, creed, color, national origin,
ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for
service in the Armed Forces of the U.S., or nationality... or that person's [family, business
associates, etc.]"; "All persons shall have the opportunity to obtain employment, and to obtain
all the accommodations, advantages, facilities, and privileges of any place of public
accommodation, publicly assisted housing accommodation, and other real property without
discrimination"; "This act shall be liberally construed in combination with other protections
available"
Note: added "gender identity or expression" to its protected status list
i.
Places of Public Accommodation - lengthy list on page 41
1. Includes retail stores
2. List is not exhaustive because the statute says "not limited to"
3. Excludes places which are "distinctly private"
4. Some exceptions for religious and educational institutions (p. 42)
ii.
Elements to file suit
5. Discrimination
6. Member of protected class as indicated in the statute
7. Place of Public Accommodation
a. On list (but note it's not exhaustive)
b. Not an exception
Subject to conditions equally applied
place of public accommodation, resort or amusement = inns, taverns, road houses, hotels,
motels conducted for the entertainment of transient guests or for the accommodation of those
seeking health, recreation or rest, or restaurants or eating houses or any place where food is sold
for consumption on the premises wholesale and retail stores and establishments dealing with
goods or services of any kind shooting galleries, gym, pool parlors
Does NOT include: any institution, club or place of accommodation which proves that
it is in its nature distinctly private.
Not private if has more than one hundred members, proves regular meal service,
and regularly receives payment for dues, fees, use of space, facilities, services, meals or
beverages directly or indirectly from or on behalf of a nonmember for the furtherance of
trade or business
Protected classes: race, creed, color, national origin, sexual orientation, military status, sex, or
disability or marital status of any person
filed suit against Boy Scouts of America (BSA) after he was asked to terminate his
membership when learned the was homosexual. argued they are a private entity and
therefore the NJ Law Against Discrimination (LAD) does not apply.
H (note: overturned by SCOTUS, below): "Boy Scouts is not 'distinctly private' because it is
not selective in its membership." BSA activities take place on property open to the public.
BSA recruits everyone and its application requirements are not stringent enough to qualify
as selective. BSA is also unlimited in size. Because of this, the court held that BSA
violated LAD. Distinctly private is determined by examining selectivity, solicitation & size.

Constitutional Limits on Trespass (Free Speech, Association)


Boy Scouts appealed on their constitutional free speech right of expressive association.
H: The state interests in NJ's public accommodation law do not justify such a severe
intrusion on the Boy Scouts' right to freedom of expressive association.
Rule of Expressive Association: the right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious and cultural ends. It is
unconstitutional to force BSA to include Dale because his presence as an outspoken gay
man in a position of teaching cultural values interferes with their constitutional right to
expressive association (part of free speech); BSA promotes a specific message and can
exclude those who affect the way that message is perceived
People
quietly
passed out handbills within an enclosed mall to protest Vietnam War. Mall has
Lloyd v. Tanner (US
policy
against
passing
out handbills. One person complained. Police asked protesters to leave
1972)
and pass out the handbills on a public street. Protesters left and filed suit. Held for the mall protestors had no right to be on the property and could be excluded.
H: Banning the distribution of handbills in a privately owned mall owned by an individual
does not violate the distributers' 1st Am. rights UNLESS the mall is the functional equivalent
of a public district. No fed protection of free speech rights in privately owned malls.
Individual
was distributing religiously owned literature on the sidewalk of a company-owned
Marsh v. Alabama
town,
which
was privately owned by a corporation and had no publically owned parks or streets
(US 1946)
on which one could engage in public speech activities. The center was open to the public and
was the "functional equivalent of a business district"
Narrow H: Where private interests substitute for the customary functions of government,
First Amendment freedoms can't be denied where exercised in a customary manner on the
town's sidewalks and streets.
Broad H: The more an owner opens his property to the public, the more his rights become
circumscribed.
D: Mall is public, central to town. No one needs to go elsewhere for purchases. As
such, it's the only place where the respondents can actually dissemination information to
the public. Mall functions as a business center.

sought
to protest in mall about military intervention in Iraq. anticipated being denied right
NJ Coalition v. JMB
to
pass
out
leaflets at malls and preemptively filed suit
Realty (NJ 1994)
H: Regional and community shopping centers must permit leafleting on societal issues,
subject to reasonable conditions set by them.
a. This ruling is limited to leafleting at such centers (i.e. malls).
b. State v. Schmid, (NJ 1980) - also affirmed State constitutional rights to hand out
literature on a private university
c. Applied broader holding in Marsh v. Alabama (more property is opened to the
public, the more rights of owners become circumscribed)
d. One example provided of reasonableness, namely impact on owner's profits or
customer's enjoyment. (Leafleting determined to have no significant impact)
Right
to
enter,
distribute, sell political materials on Princeton campus (private university); effect
State v. Schmid (NJ
is
that
NJ
free
speech
is broader than federal rights and protects against unreasonable restriction
1980)
and oppression of private entities

Boy Scouts v. Dale


(US 2000)

*** NOTE: see Dublirer (Mazdabrook, Twin Rivers) in HOA section! ***

Adverse Possession
Brown v. Gobble
(W. Va. 1996)

Nome 2000 v.
Fagerstrom (AK
1990)

bought property in 1985 and property had a fence (physical border) that enclosed 2 feet of
land, the disputed land in this case. s purchased a neighboring property in 1989 and they had a
survey of their property, showing the disputed land was theirs. did not raise any issue until
1994 when they decided to build a road on the disputed land. barred construction and asserted
title to land. met each element of adverse possession (using tacking) so the court held in their
favor.
H: The burden to prove adverse possession is by the standard of clear and convincing
evidence. (Higher standard of proof due to societal values for one's property)
Disputed land owned per survey by but occupied by . filed suit for ejectment and
counterclaimed adverse possession. Given climate, used land for seasonable purposes for
both subsistence and recreation. built picnic area, outhouse, reindeer shelter, fish rack and
planted trees, cleaned area, etc. was granted adverse possession but only over the area that
met all of the elements of adverse possession (nothing more).
H: "Whether a claimant's physical acts upon the land are sufficiently continuous, notorious
and exclusive does not necessarily depend on the existence of significant improvements,
substantial activity or absolute exclusivity."
Activity is only required to be similar to average owners of the property, which depends on the
character of the land. If the land is in a seasonal climate, failure to use out of season does not
demonstrate a failure to meet the continuous element for adverse possession. Continuous
seasonal use is sufficient. Notorious is satisfied if it's reasonable notice for an owner who
checks land in season. Test for hostility is whether the possessor acted toward the land as if he
owned it without permission

Easements

Prescriptive
Community Feed
v. NE Culvert (VT
1989)

Feed Store was using a portion of Culvert Corp's land for its business. Customer and supplier
trucks used the area for business. Culvert Corp. realized from a survey that Feed Store was
using Culvert Corp.'s land. Culvert Corp. built a fence. Feed Store filed claim for prescriptive
easement. Prescriptive easement was granted to area that Feed Store could prove its usage with
reasonable certainty.
H: After meeting the elements of prescriptive easement, the prescriptive easement claimants
need only enough evidence to prove with reasonable certainty (not absolute precision) the
general outlines of the extent of their use.
Note: tacking was permitted to meet the statutory period element


Estoppel
Holbrook v. Taylor
(KY 1976)

Holbrook permitted Taylor to use a roadway across his property in order for Taylor to reach his
property. With Holbrook's knowledge, and without any objection, Taylor used the access road
to construct a home. Holbrook later blocked the road with a steel cable. Court held that
Holbrook was equitably estopped from revoking the license.
H: A license is irrevocable if equitable estoppel operates to make it so. If a licensor grants
(explicitly or tacitly) a license on which the licensee reasonably relies to make substantial
improvements to property and is materially disadvantaged, equity requires the licensor be
estopped from revoking the license.
An investment made in reasonable reliance on the license, even if it wasn't in the
property itself, is sufficient for estoppel.


Necessity
Finn v. Williams (IL once owned whole land but sold portion to . This parcel was landlocked with surrounding
land owned by strangers. once had access to stranger's roads but they were later closed. Thus,
1951)
the 's only means of getting to a public highway was driving across 's land. filed claim for
easement by necessity. Granted.
H: When an owner of land conveys a parcel of land that has no outlet to a public highway
except over the remaining lands of the grantor or the lands of strangers, a right of way
easement by necessity exists (and is implied) over the remaining lands of the grantor.
Note: purpose of easement by necessity is to:
1. effectuate the intent of the parties, and
2. promote efficient utilization and development of the property (public policy issue)

Appurtenant v. In Gross
Green v. Lupo (WA sells parcel of their land to . Written into the deed is an express agreement granting a right
of way easement on 's land. builds mobile homes, which are occupied by some who use the
1982)

Cox v. Glenbrook
(NV 1962)

Henley v.
Continental
Cablevision (MO
1985)

road as a place to race their motorcycles. placed road blocks. sued for specific performance
of the promise to grant the easement. argue that the easement was personal (in gross), not
appurtenant and therefore does not run with the land. Court held that the easement was
appurtenant and that the servient owner may impose reasonable restraints on the use of the
easement.
H - in gross vs. appurtenant: An easement is not in gross when there is anything in the
deed or the situation of the property which indicates that it was intended to be appurtenant
to the land retained or conveyed by the grantor.
Easement in deed was described as "for ingress and egress for road and utilities
[purposes]... The grant of an easement for ingress, egress and utilities to the owners
of adjacent land is evidence of an intent that the easement benefit the grantee's
adjacent land."
H - reasonable restrictions on easement: "A servient owner is entitled to impose
reasonable restraints on a right of way to avoid a greater burden on the servient owner's
estate than the originally contemplated in the easement grant, so long as such restraints do
not unreasonably interfere with the dominant owner's use."
BALANCE burden and benefit; issue with SCOPE of easement
Quill obtained the Quill Easement from Glenbrook, which gave him a right of way easement on
the roads on Glenbrook's property. The easement conveyed it would run with the land therefore, appurtenant. Quill's property was sold to Cox and Detrick, who plan to divide land
into ~40 parcels to build homes. Cox and Detrick want to widen the road. Glenbrook has a
resort business and does not want to widen the road or allow heavy traffic on the road. The
easement did not contain a restriction limiting use to when the dominant estate is owned by one
family; therefore, all owners of the dominant land can use the easement.
H: Appurtenant easements are apportionable - they benefit the entire estate and are
dividable among subsequent owners.
H: The owner of an easement can maintain or improve the road so long as it's not an undue
burden on the servient estate.
H: The width of the road cannot be altered without mutual assent because the intent of the
parties, per the written agreement, was to keep the road the same.
Illustrates importance of the INTENT of the parties when interpreting K language
s granted easements in gross to two electrical companies for the purpose of creating and
maintaining electric and telephone service for people in a subdivision. Continental Cablevision
acquired a license from the two utility companies with easements granted by the s to erect
cables and wires for transmitting TV. s seek injunction. (Held to be exclusive, apportionable,
within scope - wins)
H: Apportioning an in gross easement is permissible if the easement is exclusive.
a. If intended to be exclusive, the easement is transferable or apportionable.
b. If the easement is not exclusive, then the grantor maintains interest in the property
and the grantee of the easement cannot apportion the easement to third parties.
H: The owner of an easement may authorize a third party to use its right of way for
purposes not inconsistent with the principal use granted. Use must be within the SCOPE
of the original easement.
a. In Henley the court held that Cablevision's use was within the scope of the original
easement by implementing a broad interpretation of the original intent. Adding a
capable line doesn't increase burden on servient estate. Cable is a logical extension
of electric and telephone service.

Real Covenants and Equitable Servitudes


Davidson Bros. v.
Katz & Sons (NJ
1990)

Blevins v. Barry
(MO 1986)

Davidson owned property and sold it to Katz with a restrictive covenant providing the premises
wouldn't contain a grocery store for a 40-year period and would run with the land. (Davidson
had another grocery store a few blocks away and didn't want competition.) Residents in the area
had difficulty getting groceries. Housing authority bought land and leased it to C-Town
grocery. Davidson sued.
H: Covenants are not enforceable if they are so contrary to public policy that they should no
longer be valid. Reasonability test - When a covenant is no longer reasonable and ends up
hurting the community, the award of money damages is more appropriate than injunctive
relief. The burden of covenants against competition generally touch and concern land, so
long as they are reasonable in scope and duration.
Reasonableness test (modern touch and concern test)
1. Did the covenant have an impact on the considerations exchanged?
2. Is it reasonable concerning the area or duration?
3. Does it violate public policy because it unreasonably restrains trade or otherwise interferes
with the public interest?
Blevins brought action against B-L alleging B-L violated a restrictive covenant by building a
group home on the property. The covenant stipulated that the property could be used for
residential purposes only and that no buildings other than single or double family dwellings
could be erected. Held that B-L did not violate the covenant because the property was used for
residential purposes and the plain meaning of family is not limited to relatives.
H: When interpreting covenants, courts should give effect to the intent of the parties using
the plain language of the covenant; when there is ambiguity, the covenant will be read
narrowly in favor of free use of the property


Modifying and Terminating Covenants
El Di v. Town of
Bethany (DE)

Town filed permanent injunction to prohibit El Di from selling alcoholic beverages in its
restaurant. The chain of title for the restaurant included a restrictive covenant prohibiting the
sale of alcohol and dates back to early 1900s when town was first established. El Di applied for
liquor license to meet the demands of its customers (who were allowed to BYOB without issue
from Town) and to curb underage drinking. Court found that the character of the town had
substantially changed, making enforcement unreasonable/inequitable. Changes included
allowing "brown bagging" (BYOB).
H: "A court will not enforce a restrictive covenant where a fundamental change has
occurred in the intended character of the neighborhood that renders the benefits underlying
imposition of the restrictions incapable of enjoyment."
In choosing to live in condominium associations, owners sacrifice some of their freedom

HOAs and Condominiums



General
Neponsit v.
Emigrant (NY
1938)

Nahrstedt v.
Lakeside Condo
(CA 1994)

OBuck v.
Cottonwood (AK
1988)

Woodside v.
Jahren (FL 2002)

Emigrant Savings Bank bought the foreclosed property of Robert and Charlotte Deyer in 1935.
The Deyers had purchased from the Neponsit Realty Company. This company assigned its
rights to NPOA. A covenant required an annual fee to maintain public lands, paths, parks,
beach, and sewers. Neponsit sued to foreclose a lien created by covenant on Emigrant land.
granted dismissal of s counterclaim and appealed. Found for Neponsit.
H: In substance, if not in form the covenant is a restrictive covenant which touches and
concerns the defendants land, and in substance, if not in form there is privity of estate
between the plaintiff and the defendant. HOA is a party that can benefit from covenant that
runs with the land.
had 3 unobtrusive cats and sued to prevent HOA from enforcing a restriction banning the cats.
Court upheld the covenant.
H: HOA's recorded declarations are "enforceable... unless unreasonable"
H: restrictions should be enforced unless they are wholly arbitrary, violate fundamental
public policy, or impose a burden on the use of affected land that far outweighs any benefit
1. Wholly arbitrary means they are not related to the protection, preservation,
operation or purpose of the affected land
2. Presumption of reasonable
owned unit in Condominium () where antenna based cable system was set up ( had antenna
on roof to allow for reception and stated the antenna based system was a key consideration in
their decision to purchase a unit there). Board of Directors removed all roof antennas after
realizing that they led to problem of roof leakage. Board then prohibited use of roof antennae
anywhere on the building, paid hookup fee to new cable system for one television, and paid for
depreciated value of old antennae. , as a result of the antenna ban, had three additional
televisions each requiring $10/month payment to get setup to new cable system. claims
reasonable because they are interested in roof safety and in maintaining the exterior (market
value issue)
H: New rules imposed by condominium associations are permissible if the new rule is
reasonable and the condominium's bylaws/rules include a provision explicitly authorizing
the enactment of new rules.
In choosing to live in condominium associations, owners sacrifice some of their freedom.
Jahren and McClernan owned condos and leased them out. In 1997, based on concerns that nonowner occupied condos would lower the market value of the condos overall, condo declaration
was amended to prohibit leases for more than 9 months, and during the first 12 months of
ownership. Approved by 2/3 of condo owners. When respondents purchased, leasing was
permitted but required Board approval for longer than 1 year. Respondents sued that rule was
arbitrary and capricious. Creatures of statute.
H: Respondents were on notice that they had a unique form of ownership, rules subject to
change through the amendment process. Respondents failed to prove the restriction violates
constitutional rights.
C: New rules should have escape clause for good faith purchasers.

Constitutional Claims
Neuman v.
Grandview (FL
2003)

City of Ladue v.
Gilleo (US 1994)

Dublirer v. 2000
Linwood Ave (NJ
2014)

Mazdabrook (NJ)

Twin Rivers (NJ)

sued condo seeking injunctive and declaratory relief after the association banned religious
services in the common area auditorium to avoid confrontation and controversy (i.e.
competition/conflict to reserve area for religious services). The majority of the owners (70%)
voted in favor of the ban, which is how it came to pass.
H: "When the condominium association's regulations regarding common elements are
reasonable and not violative of specific statutory limitations, the regulations should be
upheld."
1. Reasonableness Standard - "Prohibiting those types of assembly which will have a
particularly divisive effect on the condominium community is a reasonable restriction.
The Board found that permitting the holding of regular worship services and the
competition among various religious groups for the use of the auditorium would pose
such conflict.
2. Right to peaceably assemble is traditionally interpreted to apply to the right of citizens
to gather to discuss public/government affairs
Ordinance prohibited homeowners from displaying any signs on property except for residence
identification, sale signs and safety/warning signs. Gilleo put a sign on her front lawn
protesting the Gulf War.
H: The ordinance was an unconstitutional abridgement of 1st Amendment right to free
speech. The unique nature of the type of speech left Gilleo incapable of expressing her views
in an alternate medium. The nature of the expression was not tied to any harm that the city
could validly seek to prevent under the police power. Residents' self-interest in property
values will probably prevent the danger of unlimited proliferation of signs. More temperate
regulation could better meet the city's goals, i.e. a time, place and manner restriction.
HOA resident and owner Dublirer wanted to run for HOA Board. The Board bans solicitation or
distribution of written material without consent of the Board to preserve quiet enjoyment and
cut down on paper pollution. Board prohibits Dublirer from distributing newsletters under
neighbors doors. Board itself distributes materials, and allows firefighters and other charities to
do so at certain times.
R: The standard to evaluate restrictions on the right to free speech and assembly for
residents of HOA:
1. Purpose of expressional rights and private property rights in relation to propertys use
2. General balancing of expressional rights and private property rights
R: Test for scope of free speech rights on private property (Schmid/Coalition)
1. Nature, purposes, and primary use of property
2. Extent of publics invitation to use the property
3. Purpose of the expressional activity undertaken in relation to private and public use
H: (Balancing) Restriction on Dublirer unreasonable because the right to promote his
candidacy and communicate his views about governance of his community outweighs the
minor interference of leaflet.
placed signs in his townhouse in support of his candidacy for town council. HOA rule banned
signs for aesthetic reasons. Political speech highest level of protection.
H: Board can adopt reasonable time, place and manner restrictions, but this restriction
violates the free speech clause of state constitution.
HOA rule banned residents from posting more than one sign per lawn and one per window to
preserve aesthetic value. Residents could walk through neighborhood and ring doorbells.
H: Restrictions are minor and reasonable, allow expression to take place.

10

Water (Diffuse Surface Water, Flooding)


Armstrong v.
Francis Corp. (NJ
1956)

converted land to accommodate 200 homes and constructed a drainage system that altered a
neighboring natural stream, angered neighbors / . state that the flow of the stream increased,
stream became "evil smelling," fish were gone, stream was discolored, etc. 's land was
experiencing erosion. Held that was liable for the damage caused to 's property.
H: Reasonable use standard should be applied to diffuse surface water.
NJ adopts the reasonable use test in this case despite prior precedent following the common
enemy rule. Rationale: supported by treatise and Restatement, more flexible - can balance
interests and depend on the situation


Nuisance

Private
Page County
Appliance Center
v. Honeywell (IA
1984)

Dobbs v. Wiggins
(IL 2010)

Honeywell manufactured a computer that caused interference with TVs in town that Page
County AC sold. TV problems were due to radiation leaking from the computer. Honeywell's
were unsuccessful in their attempts to fix problem; admitted that there was technology to
manufacture non-radiation-emitting computers but it was costly.
R: The test to determine whether the operation of a lawful trade constitutes a nuisance is
the reasonableness of conducting it in the manner, place, and circumstances shown by the
evidence
Must determine whether the TVs are "hypersensitive" to the radiation (if so, then no liability)
and remanded for new trial;
Other factors: priority of location (who was there first), character of the neighborhood,
extent of the harm, burden/benefit, foreseeability
Wiggins had a kennel for 15 years and trained bird dogs. In 2007 he had 100 dogs and the
barking became extremely loud. Dobbs asked him to control the barking. Trial court found that
the gravity of the harm done to Dobbs outweighed the utility of the dog kennels. Wiggins had
earned $140,000 over 6 years from breeding the dogs.
R: A private nuisance is a substantial invasion of anothers interest in the use and
enjoyment of his or her land whether intentional or negligent, and unreasonable
H: Trial courts finding of nuisance upheld; but permanent injunction to reduce number of
dogs to 6 was unreasonable.


Public
Connecticut v. AEP Coalition of states and NYC sued AEP claiming that their emission of CO2 constituted the
public nuisance of global warming. Claimants argued the pollution interfered with public health
(CT 2009)
through:
1. current harm (warmer temps, melting snow, etc.) and
2. foreseeable future harm.
Held that the parties had stated a claim.
Note: SCOTUS later struck down this case.
Having a claim enables s to have a trial to determine whether it's a nuisance and whether they
get an injunction. Some question as to whether there should be a federal law or regulation first.

11

Landlord-Tenant Law

Leasehold Estates
Vasquez v.
Glassboro (NJ
1980)

WHO IS A TENANT? A migrant worker living in employer provided housing is not a tenant
within the meaning of NJ Anti-Eviction Act because of the absence of rent payments, the lack
of privacy, the intermittent occupancy, and the interdependence of employment and housing.
was terminated for poor work and was asked to leave living quarters immediately. argued
right to housing (temporarily) and the right to eviction proceeding. argued not a tenant - right
to evict immediately.
H: carves out special category due to Puerto Rican domicile; Farm worker is entitled to
protection even though they are not tenants and must be given summary process / judicial
proceedings before he can be dispossessed
R: No K can be sustained if it is inconsistent with the public interest or detrimental to the
common good... NJ has demonstrated a progressive attitude in providing legal protection for
migrant farm workers. Concern for unequal bargaining power.
Inherent inequality: NJ covenants must be reasonable and comport with public policy


Conflicts about Rent
(remedies, duty to mitigate, rent regulation)
Kriedel signed agreement to rent an apartment in Sommer's building. Kridel paid first month's
rent and a security deposit but subsequently wrote a letter describing changes in his
circumstance that rendered him unable to live in the apartment. He asked for a response but
Sommer did not reply. A third party demonstrated interest in the apartment and was willing to
pay the agreed upon price but Sommer's associate said it was not on the market because of
Kriedel's agreement. Sommer sued Kriedel for the full value of the lease. Kriedel contended
that Sommer failed to mitigate damages and had accepted the surrender of the premises. Held
for Kriedel.
R: LLs have a duty to mitigate damages when he seeks to recover rents due from a
defaulting tenant. It's the LL's burden to prove reasonable diligence.
Braschi v. Stahl (NY Braschi's life partner died. Stahl Associates gave Braschi notice that he would be evicted.
Braschi filed lawsuit, seeking protection under NYC Rent and Eviction Regulations, which
1989)
provide protection against eviction to family members who were living with the deceased. The
issue was whether a life partner constitutes "family" under the meaning of the NYC Rent and
Eviction Regulations, thereby resulting in protection against eviction. Held for Braschi.
R: A life partner constitutes "family" under the NYC regulation as long as the plaintiff can
produce enough evidence demonstrating that the nature of the relationship was family-like.
Court states duration, views of others, understanding and closeness with the other's immediate
family, insurance beneficiary status, household budgeting, and other factors reflect the degree to
which one is considered "family."

Sommer v. Kridel
(NJ 1977)

12

Conflicts about Occupancy


(duty to deliver possession, right to transfer the reversion, right to assign or sublet)
City, owner of space at airport, entered into a commercial lease with Pertlich, who assigned
interest to Pestana. Previously, Perlitches entered into sublease with Bixler, who sold business
to Kendall. Lease required written consent of lessor before lessee could assign interest. Bixler
requested consent from Pestana, Inc., who refused to consent without acceptance of demands for
increased rent.
[Minority] R: Where a lease provides for assignment only with consent of lessor, consent
may be withheld only where lessor has a commercially reasonable objection to the
assignment. Factors in applying standard of good faith and commercial reasonableness:
Financial responsibility of proposed assignee
Suitability of the use for particular property
Legality of proposed use
Need for alteration of the premises
Nature of the occupation
Majority R: Absolute right to refuse; uphold an approval clause strict language of K
Minority R: Reasonableness standard; trend in commercial leases towards adopting an
implied reasonableness term re: assignee/subtenant clauses requiring landlord assent.
LL
applied
to rent control board for certificate of eviction of tenant on the grounds that Myers
Slavin v. Rent
Control Board (MA violated his tenancy by allowing an unauthorized person to occupy his apartment without first
obtaining the LL's written consent. Board found that the LL acted unreasonably by
1990)
categorically refusing to let tenant bring in someone new after original co-tenant had moved out.
However, in a rent-controlled jurisdiction, there is no economic reason for a residential landlord
to withhold consent to an assignment or sublet, so since there will be no unfair financial gain,
there is no reason to impose reasonableness requirements on landlords when they create a lease.
R: LL has no duty to act reasonably in withholding consent when the lease has an approval
clause for the tenant's right to assign or sublet.
Trend in residential leases to apply an absolute right to restrict if the clause is in the lease

Kendall v. Ernest
Pestana (CA 1985)

13

Habitable Premises (Constructive Eviction, Implied Warranty)



Covenant of Quiet Enjoyment
3000 B.C. v.
Bowman
Properties (PA
2008)

(remanded in 2009) 3000 B.C. is spa that relies upon tranquil atmosphere to succeed in
business. Argues that Bowmans lease to Hair Cutter violated quiet enjoyment covenant & in
case of breach of constructive eviction. Construction workers & children from hair salon above
have interrupted atmosphere (spa had to issue refund gift cards to some patrons.
R: In constrictive eviction, a lessee may recover for all loses he can prove he actually
sustained or will necessarily sustain as result of unlawful eviction
Court analyzed losses from start of noise on 02/05 to forced eviction in 12/05 plus attorneys
fees, moving costs, and addl rent, also awarded damages for spa credits given to dissatisfied
customers & loss of businesss reputation; No damages for speculation after lease term ends

Implied Warranty of Habitability


Minjak v. Randolph LL sued because tenant stopped paying rent. Tenant claimed abated rent because of partial
constructive eviction and sought damages due to breach of warranty of habitability. Tenant
(NY 1998)

above opened a spa equipment business, which resulted in leakage and damage to 's
property. Tenant also experienced sand, dust clouds (causing health problems, damage to music
instruments, discomfort), falling debris, no warning signs and other unsafe conditions from
construction workers. 2/3 of property was uninhabitable due to damage. Tenants continued to
live in remaining section. Held that tenants could claim partial constructive eviction and that
tenants can be awarded punitive damages.
R: A tenant may assert a defense to the non-payment of rent under the doctrine of constructive
eviction, even if he or she has abandoned only a portion of the demised premises due to the
landlord's acts in making that portion of the premises unusable by the tenant.
R: Punitive damages may be awarded in breach of warranty of habitability cases where the
landlord's actions or inactions were intentional and malicious. The determining factor is the
moral culpability of the LL and whether the conduct implies a criminal indifference to civil
obligations.
Notes: Tenants could not bring implied warranty of habitability claim on the music studio area
because the standards deal only with the ability to live there (though might be a difference if
there was an asthma issue or something similar) potential for hypersensitivity claim

Javins v. First
National Realty
Group (DC 1970)

Damage was done by third parties; however, LL let property degrade, didn't do anything about it
Tenants rented in apartment complex. LL attempted to evict tenants after tenants stopped paying
rent and refused to leave. Tenants defended on the grounds of a breach of the implied warranty
of habitability because the apartment complex had committed 1500 violations.
R: Implied into leases of urban dwelling units is an implied warranty of habitability, which
is measured by Housing Regulations. Violations give rise to the usual breach of K
remedies.

14

Zoning

Equal Protection and Due Process
Substantive due process claim. SCOTUS upheld zoning law noting that the ordinance found
its "justification in some aspect of the police power, asserted for the public welfare". Here the
zoning law was enforced after a developer who had purchased a parcel for industrial purposes
challenged a zoning law that prohibited industrial uses, causing a 75% reduction in the market
value of the land. Held: no constitutional problem.
R: Zoning ordinances are constitutional if they reasonably related to a legitimate public
purposes: Public welfare benefits include promoting safety, preventing traffic and street
accidents in residential areas, decreasing noise and other conditions that produce or
intensify nervous disorders, promoting family environments and better environments to
raise children. Regulations should not be arbitrary or unreasonable
Substantive
due process claim (don't have the authority) AND procedural due process claim
Stoyanoff v.
(rule
is
too
vague.)
Applicants were refused a building permit for the construction of a highly
Berkeley (MO
modern home in a neighborhood with other homes that were significantly more traditional (i.e.
1970)
Tudor). The commission denied their application because the aesthetics of the home did not
conform to the others in the neighborhood. Held for the commission. Commission set out
guidelines as to what Tudor means - thus, there is no procedural / unconstitutionally vague
argument because the rules are clear
H: The denial of a building permit for the applicants' highly modernistic residence in the
traditional area wan not arbitrary and unreasonable - the basic purpose to be served was
that of the general welfare of persons in the entire community (namely, the impact on
market value of surrounding homes as well as the general happiness of the community)
Procedural
due process claim. Property owner applied to the city for a land use certification to
Anderson v. City of
develop
property,
which was zoned for general commercial use. After obtaining the
Issaquah (WA
architectural plans, property owner submitted the project to city departments for approval. At
1993)
the meeting, members told property owner that his plans did not fit within the concept of the
surrounding area. When the property owner asked for clarification about what they wanted, he
was told to drive to the signature street and figure out what's expected. After two sets of
revisions, the property owner's application was denied at the fourth meeting. The property
owner appealed, arguing that the code was unconstitutionally vague. Held for Anderson.
H: Building design provisions in the municipal code that are too vague are unconstitutional.
1. The words employed are not technical words which are commonly understood within
the professional building design industry and do not have a settled common law
meaning. Thus, clear definitions were not available.
2. Plaintiff was asked to comply with vague, unwritten, subjective instructions that were
not codified anywhere and therefore were not binding upon the plaintiff. Unreasonable
for the plaintiff to pay for extensive revisions based on unclear instructions in the code
3. Also some debate about the extent to which a proposal can be denied for aesthetic
reasons - court states that they may be a component.

Euclid v. Ambler
(US 1926)

15

Equal protection claim. Homeowner Olech's complaint alleged that Village demanded a 33foot easement as a condition of connecting her property to the municipal water line even though
only a 15-foot easement was required for similarly situated property owners in her subdivision.
Further, she claimed that Villages demand for additional footage was irrational and wholly
arbitrary in addition to influenced by ill will towards Olech stemming from her winning an
unrelated prior lawsuit against Village. Olech sued claiming that the Villages demand of an
additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment.
H: Olech has stated a claim.
1. "Class of one" - alleges that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment
2. Differential treatment and the claims that Villages demand was "irrational and wholly
arbitrary" in light of a 15-foot easement being clearly adequate make this sufficient to
state a claim, regardless of the ill will.
3. At trial, Olech will have to prove "class of one"; non-suspect category --> rational basis
test. Village of Willowbrook will have to prove that it's related to a legitimate gov't
purpose. They could also argue that there is something different about her property (i.e.
the terrain) that justifies the differential treatment.
Procedural
and substantive due process. Bonners owned two unmaintained houses and barns.
Bonner v. Brighton
City
ordered
them to demolish because they were unsafe.
(MI 2014)
H: Unreasonable-to-repair presumption is reasonably related to the city of Brightons
legitimate interest in promoting the health, safety, and welfare of its citizens. Not arbitrary
because there are ways to overcome. Existing demolition procedures provide property
owners, including plaintiffs, with procedural due process. Case remanded.
Substantive due process claim. Village had an ordinance restricting land use to one-family
Village of Belle
Terre v. Boraas (US dwellings. The word "family" meant one or more related/married persons OR two people who
were not related. s (Boraas) included house owner and six college students who were co1974)
tenants. Village served house owner with an order to remedy the violations of the ordinance,
which prompted s to bring this action for an injunction and a judgment declaring the ordinance
unconstitutional (). Held: the ordinance is NOT unconstitutional.
H: The ordinance did not involve a fundamental right guaranteed by the U.S. Constitution
and did not involve a procedural disparity inflicted on some but not others. Therefore, use
rational basis test, not strict scrutiny. NO fundamental right to establish a home.
Not an equal protection challenge because it's not class based.
Substantive due process claim. A zoning ordinance limited occupancy within a dwelling unit
Moore v. City of
East Cleveland (US to only a narrowly defined family unit. This prevented a grandmother from living with her
grandsons who were first cousins. Because the grandsons were not brothers, the grandmother
1977)
was fined for violating the ordinance and was sentenced to five days in jail. The state claimed
that the purpose was to prevent overcrowding, minimize traffic and parking congestion, and
avoid undue burdens on the city's school system.
H: The ordinance violated the appellant's fundamental right to privacy and to live with family,
distinguishing Belle Terre on the ground that Belle Terre's ordinance applied only to unrelated
individuals. The court did not find that the state's goals were served by the ordinance.

Willowbrook v.
Olech (US 2000)

16

Prior Non-Conforming Uses, Vested Rights, and Variances


Town of Belleville
v. Parrillos, Inc.
(NJ 1980)

Preexisting nonconforming use. s owned a restaurant. The town later passed a zoning
residence that indicated 's property was in a residential-only zone. The statutory language
allows "any nonconforming use or structure existing at the time of the passage. 's restaurant
qualified as a prior nonconforming use and, under the terms of the ordinance, was allowed to
remain in operation. About 20 years later, the s transformed the restaurant into a discotheque.
Town issued fines and eventually the case got to court. Held for the Town.
R: The method generally used to limit nonconforming uses is to prevent any increase or
change in the nonconformity. Under that restrictive view our courts have held that an
existing nonconforming use will be permitted to continue only if it is a continuance of
substantially the same kind of use as that to which the premises were devoted at the time of
the passage of the zoning ordinance.
Thus, the issue is whether the transformation from a restaurant to a discothque represents a
substantial change. The court held that it did. The s use of the property was now improper.
NJ definition of nonconforming use: a use or activity which was lawful prior to the adoption,
revision or amendment of a zoning ordinance, but which fails to conform to the requirements of
the zoning district in which is located by reason of such adoption, revision, or amendment,
Vested right claim. Stones purchased land in 1979 to build multi-family, low income,

Stone v. Wilton (IA


federally subsidized housing project. Land was originally zoned for single and multiple
1983)
residences. Within a year, the planning and zoning commission recommended a change
to single only based on sewers and other infrastructure problems. Application for
building permit denied and city council enacted zoning. s claim vested right in
developing, so rezoning is a taking of this right. Therefore, zoning ordinance should be
inapplicable. However, not much work put in by Stones. No construction bids or earth
work performed. Test for reasonableness and economic impact.
H: Rezoning a portion of Ps property does not exceed the bounds of
reasonableness. General welfare of citizens outweighs Stones investment interest.
Krummenacher v. Substantive due process claim. Garage set 17 feet from property line grandfathered in when
new ordinance set set-back limit at 50 feet. Liebeler wants to renovate house, add story with
Minnetonka (MN
living quarters, and pitched roof. She has to apply for a variance to add a story. She would not
2010)
change footprint or violate zoning requirements. City granted Liebeler a variance to expand
nonconforming garage. Neighbor challenged decision. Court upheld variance, CoA affirmed.
SC says wrong standard was applied, reversed and remanded to the City. Krummenacher says
citys decision is arbitrary and capricious. Proper standard not used to determine of Liebeler
experienced undue hardship.
H: Test for undue hardship: property cannot be put to reasonable use, due to
circumstances unique to property, variance will not alter character of locality.

17

Takings

General
Miller v. Schoene
(US 1928)

Penn Central v.
NYC (US 1978)

state entomologist ordered to cut down a large number of red cedar trees growing on 's
property in order to prevent a disease from spreading to nearby apple orchards.
H: NO taking
R: When forced to such a choice the state does not exceed its constitutional powers by
deciding upon the destruction of one class of property in order to save another which, in the
judgment of the legislature, is of greater value to the public. Where the choice is
unavoidable, the exercise of police power controlled by reasonable considerations of social
policy which are not unreasonable, does not violate due process. This means that the state
can avoid nuisances without compensating people
NYC Landmarks Preservation Law imposes duty on owners to keep exterior features of
building in good repair and required approval of Commission of any proposal to alter the
exterior architecture or construct any exterior improvement.
H: NO taking
R: Ad Hoc Rule 3-prong balancing test
1. Character of the government action: here broad benefit to society at large; not a
physical invasion; ~400 buildings affected, Penn Central is not uniquely targeted
2. Interference with reasonable investment-backed expectations: Here denial of 1 plan
is not a huge interference; expectation was that the building would be a railway government action in no way interferes with this
3. Economic impact: Here Penn Central still has and can still sell air rights; still can alter
the property
Note: don't necessarily need to meet all of these prongs; Court does not indicate which is more
important versus not

Physical Invasions (Per Se)


PruneYard v.
Robins (US 1980)

Loretto v.
Teleprompter (US
1982)

Temporary Physical Invasion - s (Robbins) sought to exercise free speech and petition rights
on 's property (PruneYard Shopping Center). The shopping center had a policy banning all
forms of public expression on their very large property. The state supreme court held that the
state constitution protected speech and petitioning, reasonably exercised, in shopping centers
even where the centers were privately owned.
H: NO taking
SCOTUS applied the Penn Central test and held that neither 's property rights nor their rights
under the First Amendment had been infringed. The requirement that the s permit s to
exercise state-protected rights of free expression did not infringe appellants' property rights
under the takings clause, because nothing suggested that the exercise of those rights would
unreasonably impair the value or use of appellants' property. Similarly, s failed to demonstrate
that the "right to exclude others" is so essential to the use or economic value of their property
that the state-authorized limitation of it amounted to a "taking".
Permanent Physical Invasion - Loretto purchased an apartment building in which the prior
owner had allowed to install a cable (1/2 inch in diameter) on the building and to furnish cable
television services to the tenants. The was allowed to perform the installation pursuant to a
NY Executive Law.
H: IS taking
R: When the "character of the governmental action" is a permanent physical occupation
of property, it is a taking regardless of whether the action achieves an important public
benefit or has only minimal economic impact on the owner.

18

Deprivation of Economic Benefit


Lucas v. SC Coastal Lucas purchased two residential lots on which he intended to build homes in 1986. In 1988,
State enacted the Beachfront Management Act, which barred Lucas and others similarly situated
(US 1992)

Tahoe-Sierra (US
2002)

from erecting any permanent habitable structures on the parcels. Trial court found that this
prohibition rendered Lucas' land valueless. Lucas asserted the effect of the Act on the value of
the lots accomplished a taking under the Fifth and Fourteenth Amendments.
H: IS taking
R: Where a state seeks to sustain a regulation that deprives land of all economically
beneficial use, it may resist compensation only if the logically antecedent inquiry into the
nature of the owner's estate showed that the proscribed use interests were not part of the title
to begin with (i.e. if nuisance or noxious use not allowed to do anyway therefore, not
a taking)
2 Prongs:
1. Does the law or ordinance deprive the owner of ALL economically beneficial use?
2. Was the owner allowed to engage in that use?
The regional planning agency imposed a temporary moratorium to maintain the status quo while
studying the impact of development near Lake Tahoe.
H: NO taking
R: Lucas only applies when there is a 100% taking; otherwise, the Penn Central ad hoc
test applies. Adoption of a categorical rule that any deprivation of all economic use, no
matter how brief, constituted a compensable taking would impose unreasonable financial
obligations upon governments for normal delays involved in processing land use
applications and would improperly encourage hasty decision-making.

19

Public Use
Kelo v. City of New City approved a development plan that had been submitted by a development agent. The city
London (US 2005) authorized the agent to purchase property in the development area or to acquire it by eminent

Berman v. Parker
(US)

Hawaii Housing
Authority v.
Midkiff (US)
Goldstein v. NYS
Urban Dev. (NY
2009)

domain. The issue was whether a city's decision to take property for the purpose of economic
development satisfies the "public use" requirement of the Fifth Amendment.
H: the development plan served a public purpose and therefore constituted a public use.
R: Given the comprehensive character of the plan, the thorough deliberation that preceded
its adoption, and the limited scope of our review, it is appropriate for us to resolve the
challenges of the individual owners, not on a piecemeal basis, but rather in light of the
entire plan. Because that plan unquestionably serves the public purpose, the takings
challenged here satisfy the public use requirement of the Fifth Amendment. The gov't's
pursuit of a public purpose will often benefit individual private parties. The Court also
stated that state governments can impose more stringent restrictions on takings.
Blighted area beyond repair; is a storeowner whose store was not blighted.
H: Court held that they would assess the area as a whole, not piecemeal / individual
analysis; property was permitted to be taken because it served a public purpose, namely the
construction of streets, schools and public facilities as well as the elimination of bad areas;
some of the taken land was to be sold to development companies for the construction of
low-income housing
State sought to eliminate social and economic evils of land oligarchy (concentration of land
ownership); statute transferred title from lessors to lessees.
H: Court held that the immediate transfer to a private entity did not diminish the public
character of the taking so it was allowed (eminent domain for economic purposes)
50% of Atlantic Yards proposition= blighted. Proposed stadium and residential/commercial
development by Ratner, owners of homes getting wiped out challenged development. Issue was
whether a public use, benefit or purpose was to have been served by the acquisition.
H: The court held that the owners challenging the development failed to show that the
Development Corporations determination was not rationally related to a legitimate public
purpose. Over half of the project site was formally designated as blighted and in need of
development. A blight study provided an adequate foundation for the development
corporation's conclusion that the land was substandard. The owners' argument that some of
the public benefits may never actually have been realized was speculative.
Due process and equal protection challenges failed, as did challenges under the state
constitution

Civil Forfeiture
Bennis v. Michigan Criminal forfeiture used on s jointly owned car after her husband had sex with a prostitute in it.
H: Michigans seizure of car belonging to husband and wife did not violate wifes right to
(US 1996)
due process even though the car was seized because the husband alone used the car for
prostitution.
Concurrence RBG: Does not violate due process to deter family from using cars they
own (or co-own) to contribute to neighborhood blight
Dissent Stevens, Souter, Breyer: petitioner without responsibility so due process was
violated.
Dissent Kennedy: no responsibility, nothing supports that value of co-ownership is so
insignificant as to be beneath laws protection.
Note: shift of the justices! Conservatives = tough on crime stance, Liberals = violating
fundamental rights by punishing someone without giving them the right to be heard or ability
to offer a defense (in Kelo, liberals said seizure was for greater good, greater public purpose)

20