NUISANCE

Bove v. Donner-Hanna Coke Corporation –

Rule: An owner will not be permitted to make an unreasonable use of his premises to the material annoyance
of his neighbor, if the latter’s enjoyment of life or property is materially lessened thereby.
A nuisance is an unreasonable interference with the use or enjoyment of land..
A lot of nuisance complaints are private nuisance ex. Moving in by a farm and thinking it smells.
Nuisance is flexible and can change with the time, but for exactly that same reason is not predictable which
attorneys and land owners don’t like. Public good will overcome the private right.
Nuisance is Post Hoc – after the fact, it has to have happened to show it’s a nuisance.
Modern day issues – Right to Farm statutes (remove the availability of nuisance law being applied)
Used to give injunctive relief (Boomer). Now it’s damages. Pay the farmer to move (Spurr).

City of Monterey v. Carrnshimba --

Public Nuisance- exercise of police powers by state or local gov.
Injunction is still the remedy here.
Rule: city can use moratoria to study and decide. If it’s not listed on the permitted list means it’s not permitted
and city can choose to deny for time to study. IF not specifically permitted it presumes you are a nuisance.

Private Nuisance: look at:

1. Social value of D’s act
2. Character of the harm (P’s arg)
3. Is the activity unreasonable? (community, jury)
Windfarm case: pure aesthetic isn’t a nuisance

PLANNING
Standard Zoning Enabling Act

Section 1 Power to zone and how – many things get added in under
the ability to control density
Section 2 Districts – This is where uniformity gets challenged typically

Section 3 Plan, have a plan, but can be the zoning code. Smaller than
broad police powers.
Section 4 Method and procedure – legislative body provides the
manner of the regulation
Section 5 Rezoning – notice, protest petition require super majority,
check your regs to see who gets to come and raise issues
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 Section 6 Zoning Commission (Planning Commissions usually take on
this responsibility). Appointed
Section 7 Board of Adjustment – appointed by legislative body and
has three predominant
1. Review of Administrative Employee decisions
2. Hear and decide conditional uses
3. Hear and decide variances
Section 8 Remedies – fine, misdemeanor, usually just injunction

The more in line zoning is with the comprehensive plan the more likely it will be upheld. City’s fail to plan at
their own risk
Cases that point us to this -

 Udall v. Haas – down zoning issue (rezoning not accomplished in a proper, careful and reasonable
manner – Did not conform to “development policy and was also inconsistent with the fundamental
rationale of the zoning law)
 SMART v. County of San Luis Obispo – Development Agreement
 Nassau County v. Willis – Mandatory Planning State – planning and zoning had to have a tight fit.
o Courts should exercise caution from going away from plain text if the result is absurd – comp
plan is statutorily required and is essentially a constitution for future development.
How much of a plan is required?
 Advisory
 Planning thru incentives
 Mandatory
 Mandatory vertical and horizontal
Role of the comprehensive plan?
 Court my just look at zoning ordinance as the plan
 Planning factor view – one factor of evaluating the validity of regulation or action - looks at the plan as
a factor (KS, MO) “substantial compliance”
 Strictness – state mandated and therefore has quasi-constitutional status and wanting a close fit.

ZONING
Establishing Zoning as Legal –
The federal government only gets those rights given. 10 th amendment makes clear that those powers
not vested in the federal government are then remain with the state. The state then gives powers to
municipalities.
Arguments:
1. Substantive Due Process (loser argument now) – zoning is seen as a legitimate exercise of the
police power that only requires rational basis review (legitimate state interest rationally related to
what is being required). Not arbitrary.
a. Village of Euclid, OH v. Ambler realty – facial challenge establishes rational basis review
(SDP); valid use of the police powers.

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2. Try to distinguish that scrutiny should be heightened for as applied because acting in a quasi-
judicial rather than legislative capacity.
a. Times this has one - Nectow v. City of Cambridge – as applied challenge - if the court
suspects that there is not a legitimate use, deference won’t be given (looks suspicious)
b. Government’s power not limited.

Intergovernmental
Necessary evils – how you plan out regional needs. Not a lot of help statutorily, courts have to weigh
in.
 Tyson – school planning
 Landfills

Base Zoning
 Reid v. Architectural Review Board – modern house issue – public welfare police powers is as
aesthetics (probably should tie with another to make it stronger)
 Pierro v. Baxendale – motel in a residential neighborhood – SDP as applied to (tie goes to the
government)

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 Economic/Fiscal Zoning
Likely Challenge
1) General prohibition against Economic zoning
Rule: “So long as the primary purpose of the zoning ordinance is not to regulate economic competition, but to
subserve a valid objective pursuant to the city’s police powers, such ordinance is not invalid even though it
might have an indirect impact on economic competition.”
2) Dormant Commerce Clause – discriminating in some way that hurts
Rule: A state statute or local ordinance which regulates even-handedly to effectuate a legitimate local public
interest, and its effect on interstate commerce are only incidental, . . . will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits.” - Pike

Pro Gov’t Pro Challenger

Ordinance limiting mobile homes to trailer parks did Ordinance limiting size of big box stores and
not violate. See Georgia Manf. Housing Association restrictions on formula businesses. See Island Silver
v. Spalding County & Spice, Inc v. Islamorada, Village of Islands.
Tying it to a general preservation of an area is
usually perceived as legitimate vs. something talks
about economics.
Look for the articulation of multiple legitimate
interests – one may not fit, but others likely will.
Is there a way both get to be in the City, just
in different places?
Look at legislative history and findings to help bolster

3) Equal Protection – treating one set of businesses in a different way than others
Rule: Pick the Class below with the test

 Suspect Class – strict scrutiny (unlikely in this situation)

o Compelling State Interest
o Narrowly Tailored
 Gender – heightened (unlikely)
o a. Important state interest?
o b. Law substantially related to satisfying?
 All others – rational basis
o Legitimate state interest
o Law rationally related to satisfying?

Pro Gov’t Pro Challenger

Tying it to a general preservation of an area is Singling me out – class of one?
usually perceived as legitimate vs. something talks
about economics.
Look for the articulation of multiple legitimate
interests – one may not fit, but others likely will.
Is there a way both get to be in the City, just
in different places?
Look at legislative history and findings to help bolster

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Example in Cases:
Hernandez – furniture stores ordinance treating square footage retailers differently

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 Accessory Uses
Rule: A use is accessory if it is:
1. attendant -
2. subordinate -
3. customarily incidental to primary use –
a. customarily – the use should be more than unique or rare, but need not be found on a majority
of similarly situated properties to be considered customary
i. Remember this looks backward at past type of uses
1. Eventually things change from customary uses (home occupations - sewing,
cooking, boarding house | New trend of granny flats)
incidental to primary use
b. must not be the primary use of the property but rather one which is subordinate and minor in
significance
c. reasonable relationship with the primary use
Note the structure of the ordinance (prescriptive vs. prohibitive)
 “If it isn’t listed as allowable in the code, you can’t do it” v. “if it isn’t listed as prohibited, go right ahead”

Vagueness challenges - Impossible to list all uses, so this is a way to show these are allowed.

Example:
Graff – dogs

Uniformity Challenges
Height and Bulk
 Equal Protection – uniformity is not absolute and rational regulations based on different conditions
within a zone are permissible so long as similarly situated property is treated the same.
o Real not feigned difference
 Rumson – the way the zoning enabling statute reads and alterations made by the city (court says they
are allowed). As long as the different treatment is reasonable it is allowed,
 Often seen as a density regulation that is expressly allowed within enabling statute
 Often seen in FAR values

Modern Issues – small house movements

Conditional Use Permits

See below

Overlay and Floating Zones

 Legislature decides the policy and the zone  § 7 determines where it is placed and platted.
o Example: Affordable housig

Performance Zoning
 Controlling before nuisances (sound/lighting levels)

Incentive Zoning
 Negotiable particularly in PUDs

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 Non-conforming Uses
Rule: 1) Reasonable Regulation 2) Amortized Phase Out – tied to the useful life through the police power
Example:
 Hadacheck – brick yard case, LA started adopting Citywide codes
 Jones v. LA – no more immediate changes allowed, government needs to provide a phase out
 Gage – 1) Terminate immediately (can’t do this) 2) Mandatory Phase out
- phase outs vary according to the type of use (this is generally okay)

Although Gage comes before the big 3 takings cases, the amortization still stands

Government Land Owner

 Recognize that there will be some uses in
place after the law has changed.
 Clash of progress – if you allow them to stay
they will stay forever (demand is created)
 We need a way to get the old uses out.
o Amortize to keep it legal
 Takings if I’m not allowed to stay
 If have to go with a phase out we want a long one
o 4th circuit – wants a long time for
amortization
o Billboards really hard to get rid of (1st
Amendment issues come into play)

Conditional Use Permit

Conditional Use Permit – special exceptions (these are typically allowed, but not placed) legislatively allowed
under certain conditions

 Legislative body decides what is eligible for CUP and the std  §7 applies standards to grant
(administrative, but okay because applying what the legislature has given them)
o Example of Standards:
 Detrimental to health, safety or general welfare
 Create congestion
 Overcrowd land
 Interfere with provisions for schools
 Interfere with light and air
 Inconsistent with purposes of property zoning and spirit of zoning regs
 Inconsistent with impermeable surface and vegetation retention
 Be determined to the environmental and natural resources
 From Loyola
 § 7 board decides when conditional use is appropriate (ex. Hospitals liquor stores, group homes).
o Permitted by right vs. conditional use
 Court looks at the standard for permit
o If there is clear process (know the evidence to put on) - deference
o No standard or too vague - no deference looks like unmitigated delegation.
 Gorman case – adverse effect on property values – if board never approved was it any
standard (usurping power)
 Loyola case – tells us that if you meet the standard (which is not saying that there is no other place that
it could go (court is not equipped to do this).
o Additionally, people may not be able to buy the place to best build
o CUP allowed camps, schools, churches (so retreat center
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 o Fairly debatable standard of review
 Cleburne case – group homes for mentally-retarded had to go through SUP, but hospitals, sanitariums,
and nursing homes didn’t – court found NO RATIONAL BASIS for this and invalidated the ordinance.
 Can put conditions around granting them

Rezoning / Spot Zoning –

Utilize rezoning because one of these options is not open to you:
o We usually rezone for a more intensive use/purpose
 Reverse spot zoning = if we zone to a less intensive use.
 You can’t ask for a CUP because the use asked for isn’t an allowed conditional use under whatever
statute or ZO.
 Comprehensive Rezoning  Rezone everyone
 Ask for a variance
o Have to show that the land is different than the land around it or show a possible hardship, you
get an exception because the land is different but the underlying zone stays the same.
Procedure for rezoning –
 Procedure
o 1) LO asks for spot zoning
o 2) Planning staff reviews, makes recommendation to Planning Board.
o 3) Planning Board holds hearings
 Neighbors show up to object here
o 4) Legislative Body accepts or denies recommendation.
o 5) Appeal to Courts

Judicial Standards and Presumptions -

o Legislative v. Quasi-Judicial - When we look for more flexibility we open the door to potential
heightened scrutiny
 Legislative - If an action produces a general rule or policy which is applicable to an open
class of individuals, interests, or situations it is legislative action and is subject to
limited review/great deference.
o Reasonable/Fairly Debatable Standard”
o Presumption of validity of ordinance.
o Rezoning/Floating zones fall here for MOST states
 Quasi Judicial - If an action entails the application of the general rule to a specific
individual, interest, or situations, then it is Quasi-Judicial action and is subject to
“Heightened Judicial Review”  Usually has to be in accordance w/ Comp. Plan.
o Rezonig/Floating zones - Some states like KS
 Spot Zoning –
 Little Test (Plains Grains – found to be illegal spot zoning)
o 1) Does the request differ significantly from the prevailing uses in the
area?
o 2) the area is rather small in terms of number of landowners benefitted
by the requested zone change
o 3) Whether the request change would be in the nature of special
legislation designed to benefit one or a few at expense of surrounding
land owners.
ALSO AT PLAY:
 Public Policy Issues
 Public officials are “captured” by the industry
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  Capture Theories
o 1) Growth Machine Theory
 Developers and Allies control decision making
 Most people think that is the dominant theory of capture in urban
areas.
o 2) Home Voter Theory
 NIMBY’S and Neighbors  Home Voters
 More likely in suburbia/exurbia
 Standing
 Namely, neighbors standing
 Has to have a concrete injury or interest with special damage or harm different
than that suffered by the general public
 Neighbors don’t like spot zoning because they bear the brunt of the change.
o “Wealth Transfer”
 LO makes the money while neighbors are inconvenienced.
o It’s a windfall to the LO.

What evidence needs to be put on by the applicant?

 Rezoning applicant should have to show – need for condition changed and it is accordance with the comp
plan.
 Fasano – Changes to zoning need to be
o 1) in accordance with the plan
o 2) A public need for a change of the kind in the question
o 3) That need will be best served by changing the classification of the particular piece of property
in question as compared to others available. (NOTE THIS IS DIFFERENT THAN CUP
BECAUSE CUP ALREADY AS A RIGHT
Applicant is entitled to (PDP)
o Hearing before governing body
o Opportunity to present and rebut
o Impartial tribunal
o Record made
o Adequate findings executed

Fasano – got to have more in the record on why you made a decision, that they met the zoning change requirements
and were afforded their PDP

Snyder- had moved along the review process, but legislative body rejects without saying anything – court still defers to
legislative body and if they want less density they should be able to do that. No presumption that if the applicant meets
the burden of proof the body must okay. They only have to say there was another legitimate public purpose without any
fact finding.

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 Variance –
 Never were approved (unlike CUP)
 2 Types
o 1. Use Variances – Not legal in many states GO get a rezoning

o 2. Area/bulk/density/FAR/Height –
 General Rule – MUST BE SOMETHING WITH THE LAND
 Unnecessary Hardship Maybe Required in some Jurisdictions (PG. 194)
 Others use “practical difficulties” must be established – PG 195
 Courts want to see evidence of what was looked at and findings in the
determination
o Substantial evidence – really you just need to show you had a reason
close to arbitrary and capricious
o De Novo review in some jurisdictions that are skeptical of the § 7 board
usurping legislative power
 EXPN – ADA/FHA

LIKELY to get a Variance UNLIKELY to get a Variance

Soil issues Personal issue (outside ADA/FHA)
Lot next to busy street Self-created hardships – oops I did something I
wasn’t supposed to please help me
Corner Lots

Examples
 Topanga – too big for a variances, didn’t show why they thought the variance should be used. Should have
compared to land and land around – unnecessary hardship
 Hypo: The real estate agent that supports the buyers idea of rehabbing
 Two houses in Utah one built to high, told to tear part of it down (Note it conflicts with the doctrine of waste
and Innocent improver doctrine)

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 Vested Rights
When is there a property right in existing law?
Options for bringing action either in law (vested rights) or equity (equitable estoppel)
Usually look at the same four part test
1) Government Action that authorized
a. NO ministerial act
b. It has sucked you in
c. Existing zoning is not enough as that is usually already there and not a specific act for you
d. Time along is not enough unless you have a deemed approved statutes
2) Substantial expenditure in reliance of pursuing the approved discretionary act
a. ALONE not enough
b. Substantial isn’t well defined – cost to date as % overall project or just to date on case by case
basis
i. Rarely just the purchase of the land
ii. Not usually plans, engineering, econ feasibility studies or planning to submit application
iii. Usually post application costs
3) Good faith reliance
a. Hurry & Build - BAD FAITH YOU FAIL
b. New person working and I know they don’t know what they are doing - BAD FAITH YOU FAIL
4) Balancing (ONLY USED BY SOME JURISDICTIOS
a. Public vs. private interests)
i. Existing uses and zoning nearby properties
ii. Extent to which the desired nonconformity will diminish property values
iii. Extent to which destruction of plaintiff’s property value promotes the public health,
safety, morals or gen welfare
iv. Relative gain to the public compared to hardship imposed on property owner
v. Suitability of the property for zoned purposes
vi. Length of time the property has been vacant under present zoning.

Vesting of Rights
Certificate of Occupancy Most Secure – Ministerial (check off no more
discretionary steps left
Building Permit (Avco)
Final submission App
Preliminary application Reliance (More secure)
Final PUD approval
Submission for app final PUD approval
Spec. Use/2nd use permit granted
Site plan approval
Least Secure
Grading site
Newly enacted zoning (esp. if at req. of landowner)

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 Contract & Conditional Zoning
Is this bargaining away the police power
Prevalent now that it seems quaint
Contract zoning is bad; conditional zoning okay

Government Those Opposed

 Its just conditional zoning unilateral promise by
developer the government hadn’t made any promise
 Development Agreement that goes thru big
bargaining and negotiations (all states generally have
a statute that allows for this)
 Rational basis, $8 million a separate issue
 Bargaining away the police power
 Contract zoning is illegal – bilateral promise
 Move to community benefit agreements (CBA) to
appease – but hard to enforce

Durand - $8 million donation and rezoning. Court found this okay, remember this is also Massachusetts so they still have
town hall meetings (notice how the Fasano court was worried about the board being bought and this seems more clear,
but the court is okay).

An agreement including a voluntary offer of public benefits in exchange for a vote in favor of rezoning does not by itself
invalidate the decision.

Development Agreements
- Statutes allow cities to have development agreements
- Many without statutes still have development agreements
o An argument would be no authority and bargaining away of the police powers
 Still usually loose
o Courts see them as inherent authority even without an authorizing statute
- When states enact usually because tired of litigation say its okay and just make it clear
- CA Development Agreements
o Agreements deemed legislation act (remember CA loves referendum so maybe a nod to
allowing ref on these)
 Think of implications
 Judicial review
 Subject to ref
 Public hearings for legislative decision
- Note enforcement
o Not allowed to challenge unless a party
 But legislative so they get to use referendum
- SMART Case
o Bargaining away police power
o City gets land for swimming pool, cemetery and sewer
 Exactions (negotiations) – “cost of development”
 Development agreement can get you more than Nolan/Dolan allows
- Reflects changes in zoning laws
o Form based v. Euclid
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o PUD takes into
o account whole area vs. use.

Page 13 of 21
 Legal Challenges
How do we get into court?
Hurdles to overcome
1. Ripeness requirement – as applied not facial
a. Finality requirement – final decision made by local gov’t
i. Usually requires that you have asked for a variance
b. Exhaustion requirement – all your appeals through the process of local government and all
admin remedies exhausted
i. Not required for § 1983 claims (but they have short S/L – tied to state torts usually)
2. Standing – Must be an aggrieved party
i. Particularized claim unique to you and not just a generalized issue (may get to weigh in at
legislative body, but not in court)
ii. If generalized your remedy is to VOTE THEM OUT
iii. Presumption: an abutting lot has an impact (think about variance notice)
1. But this is rebuttable – once the other side says no you are not aggrieved, you have
to show direct facts that there is a special and unique grievance different than the
general public
a. Negative easement by prescription not strong
b. Height requirements, restrictions likely better argument
i. Common law air rights
3. Statute of Limitations – Billboard case

Judicial Review
Make sure to package things correctly
- Declaratory/Injunctive – asking for ordinance not to apply, declare it unconstitutional
- Mandamus – ministerial or quasi-judicial acts only!
o Usually minor administrative
o Remember have to show no adequate remedy outside
o Not used with variances because those are discretionary
- Certiorai – tell lower court they’re wrong
o So this is review for quasi-judicial (Fasano)
o Most states have right

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 Takings
4 Parts
1. Private property must be at issue
a. So K rights aren’t part of this
b. Real Covenants what are they?
i. Burden and benefit property
ii. Run with the land
iii. Creagon v. KS DOT
1. The land benefitted around the taken property
a. Owners of property surrounding feel like they have a taking issue
because of the benefit they were getting from the land being taking.
b. KS Supreme Court – doesn’t get into the K or Property issue, but does
find a taking through the loss of benefit that ran with the land.
i. Note DOT doesn’t have to pay additional, just needs to allocate
some of the money already paying to the land, but argument that
because of the reciprocal nature that these owners are getting
excess amount
ii. NOTE other courts may go a different way if they have adopted
the 3rd restatement of servitude because seen as a mere contract
vs. Pro-private property/traditional states
iii. CCR likely seen as a K controlling zoning
2. Taken
a. Mere Regulation (Euclid) ---------------------------------------------------- Title Transfer (Midkiff)
b. So when is it “taken”
i. Categorical Takings/Per se/ De facto
1. Physical Invasions – if then analysis\taking a stick out of the bundle (right to
exclude)

Rule: Gov’t sanctioned physical invasion no matter how small or temporary of P land is
a taking [NO TEST – It is or it isn’t pure fact]

Case Facts
Causby Low flying aircraft that constantly bothered chickens

Holding: Taking without just compensation – long

continued temporary physical invasion of air space
that was considered part of their land at that time.

DID NOT FOLLOW – Penn Coal line of cases with

“too far” test because this is a physical invasion vs.
regulation
Kaiser/Aetna Private Lagoon that connects to navigable waters
which makes it now public and open

Holding: Navigable waters law makes it impossible to

exclude the public so temporary physical invasion
and is a taking per se
Loretto Cable wire and boxes on apartment.

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 Holding: Permanent Physical Invasion no matter how
small is a taking.

DID NOT Follow Regulatory takings line went with

physical invasion (interesting since LL/T are so
regulated)

Courts in these line of cases suggests that every permanent invasion

is a taking, but we know that’s not the case because of exactions.
TEST NOTE If you want to get out of balancing tests, try to make it
a physical invasion – note the court got wise on this
Guie v. Espensido – rent control puts an end to
people trying to get it to go this way

2. Wipe Outs/Complete Reductions

Rule: If you regulate to the point the property is completely worthless it is a taking

Case Facts
Lucas Wants to develop, but the erosion regulations.

MAY BE AN ANOMOLY – the government stipulated

the land is worthless (no one would do this now in light
of this). Brings back what the denominator should be.

Reasonable expectations and Scalia’s background

principals of property law – goes to the expectations
you have on your property, creating a nuisance cannot
be part of that (but seems like these are frozen and not
new based on the majority)

Impact of Lucas –
Environmental Regulations – concerns about what it
means (again remember not to stipulate completely
worthless)

Moratoria – stop things for a short period to get a good

plan on how to zone/regulate. Think of fsa vs. short
period of moratorium. Penn Central gave us the parcel
as a whole and Tahoe extends this to say that means
fsa.

ii. Balancing Test/ Ad Hoc

Test:
1. Character of government action
a. Hierarchy
i. Extreme is per se and has its own line
b. Five ways seen in cases
i. Physical invasion vs. mere regulation
ii. Prospective vs. retroactive
Page 16 of 21
 iii. Reciprocity of advantage – advantage to all most importantly the
land owner affected
iv. Government acting in enterprise (eco devo) vs. regulatory
capacity (further away from regulating and closer to econ devo
higher likelihood of not protecting gov’t action)
v. Nuisance Defense
2. Economic impact
a. Extreme – wipe out
3. Interference with distinct investment backed expectation
a. Distinct will eventually be changed to reasonable.
b. Hodel v. Irving discussion
i. Heirs have no rights, but instead is decided on the right to pass on
property through inheritance
c. Typically looked reasonable return based on loss of value vs. profit

Case Facts
Penn Coal Cave-in prevention

Shows that not all legislative acts okay if claiming to

prevent harm. Counter punch to Substantive Due
Process Deference – it could be a taking

Holding: Regulation goes “too far” it becomes a taking

and diminution in value of the property matters.
Legitimate public purpose + impact on individuals
property

DISSENT: Brandeis – if we care about impact and

there is a legit interest how do we decide the diminution
– Denominator Issue what you put here is outcome
determinative [34% has been enough to survive MSJ]
Penn Gives us the balancing test above
Central
Lingle Solidifies that SDP “substantially advance legitimate
state interest” is not part of TAKINGS analysis (before
there were several cases that were using this type of
analysis)

If the issue can be articulated as a taking it should be,

plus if you are trying to fight government you will lose
because of the deference.

TEST NOTE: Distinct v. Reasonable – Reasonable is easier to show,

distinct is harder. If you are government argue Reasonable if opposing
arguing Distinct

Page 17 of 21
 iii. Exactions

Rule: Two prong test from Nollan and Dolan

1) the condition must bear an “essential nexus” to the reason for requiring the permit
(substantially advances a legit state interest and nexus b/w what requesting and the
interest you are advancing), AND

2) the condition must also be “roughly proportional” to the impact of the development
project (individualized determination that required dedication is related in nature and
extent of development impact)

Case Facts
Nollan Want an easement along the ocean (not actually giving
people access – no nexus so found to be a taking.
Stick out of the bundle – exclusion.

Middle ground – 1) gov’t can only put exaction if

exaction substantially advances a legit gov’t interest
and 2) doesn’t deny all economic viable use of the land

States were using three different kinds of tests court

with the middle one the other two:

1. Ayers/Grupe – loosest relationship between the

exaction and public use/legitimate public purpose.
SEES this a UNCONI – if you came to my door and
asked for this it would be a taking, tying it to my
building permit shouldn’t make it easier

2. Tight – highest scrutiny - specifically and uniquely

attributable | Must prove that you are causing the costs
Dolan Rule: Rough Proportionality – individualized
determination that required dedication is related in
nature and extent of development impact. BURDEN OF
PROOF ON GOV’T

Greenspace for flooding when expanding hardware

store in getting the permit. Why couldn’t just be there
for the water, why does it have to become public?

Types of Utility infrastructure, roads, sidewalks, parks, schools

Exactions Onsite improvements to improve land – subdivisions
have created this need so kay.
Fees in lieu Money to

Assessment Assess a percentage fee from all land in the area to

s pool to put in things like recreation facility

3. Public Use
a. No court has fully defined, it is typically fact specific rational basis analysis
Page 18 of 21
 b. Defining Public Use is what expands and contracts the government’s power to take - Purpose
vs. Use
c. If its not public use know amount of compensation can justify it
Early cases:
 Berman v. Parker – slum clearing, urban renewal, blighted property zone (department store
owner not blighted, but in the zone)
o 9-0 slum clearing is okay and you happen to be in the zone. Court isn’t a planner
that’s for local government
 Sufficient blight is not a reason
 Action taken for health, safety, welfare of the public aesthetics even makes it
okay

 Midkiff – large concentration of land by missionary families – this is messing with the
housing market
o Private  Gov’t Agency (Hawaii Housing Authority)  Private
o Public Purpose now instead of Public Use
 Rational Basis: (strong deference)
 Legitimate Goal – Yes, right the real estate market – conterminous
with the police power
 Rationally Related – Yes, letting people buy

 Poletown – STATE CASE – later gets overturned with Havcock because state court
reinterprets the state constitution
o 3 things in MI  not eco devo
 Public entity retains control
 Condemnation public necessity
 Blight removal w/ indep. Significance – separate from transfer to private
property

Modern Cases –
 Kelo –
o Government truly a pass thru and not fixing a problem other than better economics
o Not blight or slum clearing
o No dominion and control ever really so maybe best argument
o BUT WHAT ABOUT HOLD OUTS – if we didn’t assemble land through this way it
could jack with the markets as well.
o Is it about who’s idea it was really – who approached who
 State backlash to Kelo
o Prohibits eminent domain solely for eco devo
o Blight removal okay in MO
 Blight definition never got tightened up so it’s pretty easy still
 Note that more challenges to things brought under blight with the court for the
first time reversing decisions saying there isn’t blight

Pro – Majority Anti – Eco Devo / Minority Opinion/ Kelos

Not second guessing the elected officials Want a bright line test -> Economic
Development DOES NOT equal public
purpose
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 This is the way our case law has gone –
broad interpretation of Public Use (really
Public Purpose)
Some discussion of motivation – pretext
(seem a bit out of touch with how things really
work in development)
If we won’t go so far as Eco Devo exclusion,
what heightened scrutiny test (Rational Basis
+ with a switch in presumption that its not for
public use and make gov’t/applicant take
burden of proving public use).
Dissent – affirmative harm not established
(BUT hey wasn’t this a brownfield)?
Tries to distinguish from Midkiff and Berman
stating there was a harm elimination in those
cases this is just economics – nuisance
prevention okay

Question O’Conner if this is actually her belief

or Post Hoc from Midkiff (did I go too far)

4. Just compensation
Things to keep in mind
 The 5th is written in the negative, but think if it was written the positive
o Government can take as long as public use and pay just compensation
 The State create property rights, this is just a limitation
 Government Taking for Public Use
o Eminent Domain

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Procedural Due Process
From my Con Law Outline
PDP - Procedural Due Process, PDP – A lot of Civ Pro and Crim Pro is rooted in this
“No state shall…deprive any person of life, liberty, or property….without due process of law…”

Requirements triggered
1) Life, Liberty, property interest (note interest and not right used here)
2) Gov’t invades/denies those interest without following fair procedures first (it could happen after too

Administrative Decisions – require PDP | Legislative decisions do not – have general hearings

Examples: Fair Criminal Trial, Denial of Gov’t Ben., Stripping of License

Judge is biased against (PDP), condemn a house without notice (PDP), State wants to ban rental of property because it hurts
property values (SDP – more fundamental right than interest),
Comstock also a due process

Elected Officials – Legislative Body  Re-election

 Police Powers
 Pro development/anti-development – based on personal connections
(i.e. banking community, developer, real estate broker).
 Property Values
Administration – staff, zoning boards,  Apply the standards give to them by legislative body
planning commissions  Property values
 Knowing elected officials
Developers  Push the bounds of zoning to get their projects approved
 Property values
Land Owners  Quiet uninterrupted enjoyment
 Property Values
 Income potential

Extending Nolan/Dollan to Legislative Actions

 Pro
o Nothing in the takings clause that indicates what branch of government
o Still being harmed in either case

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