Outline for Property I

Philosophical Backgrounds

I.John Austin

Austinian Positivism/Formalism
Sovereign declares law as a command to be followed by its subjects
Judges should only look backwards to precedent; they do not create law
A law is changed only by the legislation

Hobbes-justifies sovereign with absolute authority
Bentham-legislation based on majority of happy people

II.John Locke

Natural Rights
Life, liberty and property to be protected by the government
otherwise, government should keep out of people’s business

III.Rational Maximization of Utility

Chicago School
Market makes utitlity
Adam Smith, Richard Posner, Charles Friedman
Government and courts should do nothing but maintain the integrity of the market
Issues to be decided by what is most efficient, what is best use, what is most profitable

IV.Oliver Wendel Holmes

Legal Realism
Decision based on policy
Pick the decision that best benefits society
Wash law in the acid of the bad man
Law is a prediction
Assumes scientific knowledge applies to policy by cause and effect

V.Critical Legal Studies

The law is a conceit to keep the rich and powerful rich and powerful while oppressing everyone else
Extreme expression of Legal Realism
Judges create law and then spin it to sound like precedent strengthens their argument
Mediation good, litigation bad (Japanese law based on Buddhism)

VI.Clarence Thomas

Natural law-God given

Procreation
Self Preservation
Society
Love of God, learning

Trumps Constitution?

VII.Ruhl’s Theory

Chaos theory of law
Butterfly in the system screws cause and effect hypothesis
If the system becomes too heavy, it has no hope of working
Cannot predict a complex system’s happenings other than to say there is some order there
Complex systems will ultimately destroy themselves
Stability in small adaptations

VIII.Henry Maine

Historical evolution of obligation
Obligation of status
Obligation of contract today, but moving back to . . .
Obligation of status

Takings

Background

5th Amendment of the U.S. Constitution-no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Taking?
Public Use?
Just Compensation?

14th Amendment applies 5th Amendment to the states

Terminology

compensation-usually market value of the property immediately prior to taking

police power-authority under which regulations or eminent domain is authorized for the benefit of health, safety and welfare of the public

eminent domain/condemnation-the ability of the gov. to take by judicial action private property for public purposes if owner is compensated

inverse condemnation- owner sues government for using property without compensation

average reciprocity of advantage-while some regulations restricting property result in some loss, they also create gains, things tend to average out in the end, if the loss is not too heavily visited on the few

essential nexus-tight means-end fit between the state interest being promoted and the regulation chosen to accomplish such

economic externalities-costs not factored into the sale price of goods, cf. Dolan in that if Dolan’s business generates so many bike riders Tygard must set up a bike easement, the economic loss of that property affected was not accounted for in the selling of her goods and therefore is an economic externality

rough proportionality-tight fit between the impact of property owner’s development with regulation done in response to development

reasonable investment backed expectations-expectations that investment in a property will yield a higher return after development

Takings-Cases

Hawaii Housing Authority v. Midkiff

Court affirmed the constitutionality of Hawaii legislature’s use of eminent domain, allowing landowners the opportunity to avoid capital gains taxes by selling it to tenants of property and compensating the landowners
Where the exercise of eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause
Court will not substitute its judgment for the legislature’s
Good example of Austinian jurisprudence-Court follows legislature
Property owners got screwed-Locke wouldn’t be pleased
CLS-another example of the regime bolstering itself-rich landowners don’t have to pay taxes, and rich tenants become landowners

II.Poletown Neighborhood Council v. City of Detroit

A very strapped City of Detroit used eminent domain of Poletown to set up a plant for General Motors
Judgment for defendant affirmed-project is warranted on the basis that its significance to the people of Detroit and the state of Michigan has been demonstrated
CLS-an area with traditional ethnic roots and solid community base gets uprooted by the man so a big corporation can move in
Austin-Court follows legislature
Property’s utility is maximized
Property rights of the individual go down the drain-Locke

Loretto v. Teleprompter Manhattan CATV Corp.

TMCATV placed a cable box permanently on a landlord’s property under a New York statute allegedly furthering a public purpose that all tenants should be able to receive cable
Any permanent occupation authorized by government of one’s property is a taking no matter what public interest it serves
Such occupation destroys owner’s rights to possess, use, and dispose of her property
The idea of “permanent” is effectively attacked in the dissent
Property rights protected-Locke
Austin might not like this case because the New York statute was shot down

IV.Pennsylvania Coal Company v. Mahon

Who wins in battle over mineral interests if mining them might cause a sinkhole
Penn. statute (Kohler Act) forbids mining in such a way as to cause the subsidence of any structure used as a human habitation, where property is above coal and more than 150 feet from the mine
Act cannot be sustained as an exercise of the police power. Any act that makes property commercially impractible to mine in effect destroys the property and is a taking and needs compensation for the lost economic interest. See investment backed expectations
The general rule is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking (average reciprocity)

Balancing test: public interest v. whether or not a taking
Reciprocity of Advantage: loss of individual v. gain of public (see zoning)
Diminution in Value: if economic value of land is diminished, a taking may have occurred (vague-see cases below)

Contract is binding, court cannot give more rights than those bought by surface owners
Dissent says legislative act prohibits nuisance-no right to use property to injure another
Surface owner got screwed for big business economic interests-CLS
Austin got screwed because legislative act got revoked by court
Holmes decided economic interest better protected if surface owners were stupid enough to sign the contract giving up their mineral interests-legal realist
Property’s utility is maximized
Locke would be in a muddle-surface rights v. mineral interests; would probably side with the miners
Keystone, 1987, p825 in note 3-Subsidence Act deemed constitutional because mining a nuisance

Penn Central Transportation Co. v. City of New York

Do restrictions authorized by New York historical land preservation statute on the air space over Grand Central Station constitute a taking
Landmarks Preservation Law-protects landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character by creating incentive for owners of the land elsewhere so that they can still expect a reasonable return on their investment
Brennan likens the law to zoning ordinances

law sets up a Landmark Preservation Commission
after hearing, board may consider property for landmark status
owner may seek judicial review if unhappy with status
three separate procedures for altering a landmark

“certificate of no effect on protected architectural features”
“certificate of appropriateness”
“insufficient return”-provides remedy if showing of economic hardship made
all subject to modification or judicial review if denied

Owners can transfer development rights to contiguous properties on same city block
Plaintiff could win only if it showed that the taking of the airspace above building completely deprived them of all reasonable beneficial use of the property. Leaving a little is apparently okay.
Court held that restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford owners opportunities further to enhance not only the Terminal site proper but also other properties
Dissent argues average reciprocity of advantage violated and that regulation is a taking; also distinguishes that zoning affects all land of an area works, while arbitrarily picking certain buildings to be landmarks doesn’t
Natural rights and maximization of utility of property dealt a grave blow
While Holmes may not have personally agreed with the case, a legal realist might applaud the decision for picking the right public policy to endorse
CLS-slight victory in as much as the little guy doesn’t have to pay more taxes if compensation were necessary

Nollan v. California Coastal Commission

In order to redevelop property, Nollans had to obtain a permit from commission subject to condition that they allow a public easement to pass across a portion of their property so that the public could access the beach
Nollans argued that the condition could not be imposed without evidence that their development would adversely impact public access to the beach
Public hearing found that private use would block the sightline of the beach and prevent access
Land use regulation does not effect a taking if it substantially advances legitimate state interests and does not deny an owner economically viable use of his land
Constitutional propriety of regulation disappears if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition (see nexus)
There is no nexus between the easement and allowing the public to see the beach. Such an easement would be a taking
Dissent argues that Commission made legitimate use of its police power as authorized by Ca. constitution which protects public interest in the beach expressly. Also argues that there was a nexus in that if there is an increase in private use, public use should not be threatened. Also argues that average reciprocity is satisfied-no taking
legislative act creating Commission foiled-Austin disapproves
Court created a new test-conceivible notion to legitimate notion-Austin really disapproves
property right to exclude the public protected-Locke wins
First English, 1987, p847 note 3 and Emanuel’s p 267-must be compensated for a temporary taking deemed as such

Lucas v. South Carolina Coastal Council

Legislative act to keep erosion of beaches down prohibited Lucas from developing property he paid $975,000.
Property deemed valueless under the act
Lucas attacked act as constituting a taking because value rendered useless, but did not attack whether act legitimately advanced health safety and welfare
Where the state seeks to sustain regulation that deprives land of all economically beneficial use, court holds the state may resist compensation only if it shows that the proscribed use interests were not part of his title to begin with-remanded to deal with this issue
in other words, if Lucas’ planned development can be said to be a nuisance, he will not be compensated
Natural law argument (Notre Dame Law School)

standard procedure for a takings case

landowner has burden of showing frustration of investment backed expectation by regulation that was reasonable prior to enactment of regulation
regulating entity must show regulation is justified by antecedent inquiry into the background principles of nuisance and property law. Showing would succeed if the state could demonstrate the prohibition was necessary to avoid substantial harm to public or private lands and resources, which harm outweighs the social value of the intended use and cannot be avoided by other means-essential nexus and rough proportionality must be satisfied

this procedure should be applied to all land use takings disputes
natural law respects the character of a local community as it has defined itself chiefly within state judge made precedent, rather than solely and deferentially in the too often acquisitive or exclusionary immediacy of legislative enactment

Ruling seems to advantage the investor-maximizers of utility would be happy
John Locke would also be happy with protection of property rights from gov. interference

Dolan v. City of Tigard

Dolan wished to expand her business but had to get permit subjecting her property to flood control and bike path easements on her property
Passed the essential nexus test-the regulation authorizing dedication was justified by and connected to legitimate state interests
Rough proportionality-the relationship between the regulation and Dolan’s planned improvements.
In other words, do Dolan’s further improvements to her property justify the granting of easements to control flooding and traffic-case sent back for a finding on this issue
Rehnquist classified city’s conditioning of permit adjudicative in its affecting only one individual on one parcel-Souter alters this by saying her request for a variance from the city was adjudicative; city’s conditioning was based on enactment. cf. Fasano
John Locke-thumbs up
if Dolan wins, Chicago maximizers of utility thumbs up
Turtlerock v. College Station-historical background of “rough proportionality” in that the money Turtlerock collected for park use actually had to be spent on parks

Galveston

Texas Open Beaches Law-mean high tide line to line of vegetation is public domain
This property is valueless
Easement by continued use (beach adversely possessed by the public)
Cannot build on this property
No reason to exclude people because of easement
No taking because of easement was in place prior to Lucas
If vegetation line ends up behind a house and that house is more than 50% destroyed, it cannot be rebuilt because of Texas Open Beaches Law

Evolution of Takings-

List of cases:

Pennsylvania Coal Company v. Mahon 1922-average reciprocity of advantage

Penn Central Transportation Company v. City of New York 1978-unless total diminution of value, no taking

Loretto v. Teleprompter Manhattan CATV Corp. 1982-a permanent occupation is a taking no matter what

Hawaii Housing Authority v. Midkiff 1984-conceivable notion of HSW for eminent domain; legislature knows best

Nollan v. California Coastal Commission 1987-regulation must legitimately further or substantially advance HSW; essential nexus

Lucas v. South Carolina Coastal Council 1992-if economically backed expectations destroyed, unless development was going to be a nuisance, then a taking has occurred

Dolan v. City of Tigard 1994-rough proportionality

Procedure for takings suit (as of Dolan)

I. Legislative enactment uses police power to bring about a regulation or act of eminent domain to further a goal of health safety and welfare for the public

Property owner wishes to sue

to avoid eminent domain-must show there is no conceivable notion of public purpose to use of eminent domain
to avoid regulation-

landowner has burden of showing law does not substantially advance legitimate state interests and that economically viable use of property has been deprived
Regulating entity must show regulation is justified by antecedent inquiry into the background principles of nuisance and property law.
Showing would succeed if the state could demonstrate the prohibition was necessary to avoid substantial harm to public or private lands and resources, which harm outweighs the social value of the intended use and cannot be avoided by other means-essential nexus and rough proportionality must be satisfied

Zoning

Terminology

special use permit

legislatively authorized uses identified in the zoning ordinance that are regulated by an administrative agency because of special problems of the use presents from a zoning standpoint (day care centers, grocery store, gas stations, hospitals, private schools)
Administrative, not legislative in character
disputes arise on whether proper standards have been articulated for the delgation of authority, whether the standards have been met, and whether the requirements create unconstitutional classifications

variance-departure from zoning regulations granted by an administrative body to avoid overly harsh results from zoning regulation. For instance if a 98 foot parcel is subject to a 100 foot frontage ordinance. Hardship must be unique to the particular lot (for many lots, zoning amendment needed). Variance must not harm surrounding neighborhood. Variances are not recorded on the map and are subject to abuse

non-conforming uses- uses of property that exist prior to adoption of zoning ordinances

amortization-ordinance authorizing non-conforming use to run out after a set period of time-time enough for the owner to make back his initial investment

spot zoning-like parcels being zoned differently without good reason-invalid. Tests for such as follows

use permitted must differ drastically from prevailing uses in surrounding area
small area affected, usually one parcel
use benefits one or a few owners rather than the community at large

planned unit developments/cluster zoning

permits developers to deviate from rigid lot size and building set-back requirements, and in some cases to mix uses within a development.
Criticized for requiring more costly infrastructure such as roads and sewers and for contributing to a sense of isolation.
limited to large tracts of land 10-20 acres
must be harmonious with immediate environs and consistent with municipality’s land use plans

floating zone-no defined boundaries, but float over area to be affected.

municipality enacts an ordinance authorizing a particular range of activities, without specifying specific areas in the municipality where the activities can take place
second ordinance anchors the floating zone to a particular tract of land in response to specific development proposals

overlay zones-if a municipality wished to impose different regulations on certain permitted uses in part of an existing zoning district, new regulations are “laid over” the existing zone map. existing regulations that do not conflict with the overlay district remain in effect, but conflicting ones are preempted