QUESTION IG: COMMENTS: Structure: As I discussed in the review sesion, I was looking for an organized list of specific investigative tasks that you would undertake and some sense of the reasons behind the tasks. The two best student answers both are good examples. Some of you did some of the following tasks that were not very responsive to the question:
Made arguments about whether FN would be successful in possible lawsuits (without determining relevant law and facts)
Listed possibly relevant legal tests without following up with factual questions to see if the facts indicated the tests would be met
Asked "questions" that were simply legal tests in question form, and so were too vague to indicate how you'd go about answering them (e.g., "I'd see if the new by-law was arbitrary" or "I'd check if it would be a public nuisance.")
Proposed settlement alternatives for the parties (you were not asked to prepare for a negotiation).
Substance: An important set of questions you needed to ask concerned the scope of the display and the extent of the harm it caused. Some of you did thoughtful detailed investigation of these issues; others barely mentioned them. You will be unable to determine if her display is a nuisance or if it violates local zoning unless you know how extensive it is and what problems it causes. In addition, I looked for discussion of the following topics:
Homeowners' Association (HOA) Rules: To see if the HOA rules could prevent the lights, you would need to determine what the new by-law said, whether it was passed properly under the HOA's own rules and any state laws, whether the state had any statutory limits on what HOAs could do; whether the state had rules like Nahrstedt; whether the rules were stricter for changes in by-laws than for original declaration, etc.
Many of you spent a long time exploring other possible servitude issues, which I thought was not time well spent. Although I certainly would check the records for other deed restrictions, it is unlikely they are there. If prior covenants prevented the lights, the HOA would not have needed to amend its by-laws; it would just enforce the existing covenants. Some of you also suggested looking for a common scheme, another unlikely possibility. While I can easily imagine a developer planning "residence only," I am skeptical that a developer would intend to create an X-mas-light-free zone. Moreover, how could anybody get inquiry notice of such a restriction? Even just before Xmas it would probably not occur to you that the lack of lights was part of a deliberate scheme.
Nuisance: Legal research would include determining the rules for public and private nuisance that apply in the state, looking for any nuisance cases had addressed holiday displays, determining the relationship between zoning and nuisance liability, and determining if Felice could be liable for actions caused by others (as in Armory Park). Factual research would include determining the scope of the harms caused by the display, determining what other holiday displays were in the area to see if the display was typical or suitable, exploring possible benefits of the display (neighbors who like; any charitable work associated with, etc.). Weaker answers listed nuisance tests, but did not describe what research you would undertake to see if they were met. Incidentally, Professor Mahoney says there are a lot of recent cases in which courts have found traffic-causing holiday displays to be nuisances.
Zoning: We discussed a number of possible attacks on aesthetic zoning. Here, you first should determine whether the zoning in fact governs your client's display and, if it does, what process you would need to go through to get board approval. If approval was unlikely, you would explore whether the municipality's zoning complied with state requirements for zoning generally or aesthetic zoning in particular. You could check caselaw about whether it needs to be tied to property values and how specific it has to be. You also could check if it was conbsistent with the municipality's comprehensive plan. Some of you cleverly suggested checking to see if the displays pre-dated the zoning (it might be a non-conforming use) although because it's taken down each year, this might not fly.
Many of you discussed variance procedures and availability. While I gave a little bit of credit for these discussions, I think that this is an unlikely case for a variance. If the zoning specifically requires board approval for exterior displays, it would be hard to argue that the zoning plan wouldn't be harmed by the variance. Moreover, limiting large Christmas displays is unlikely to drastically reduce the value of the property, so it will be very hard for her to meet any hardship requirements.
Other Possible Topics: You could usefully explore religious discrimination claims against the homeowner's association and first amendment claims against the municipality. As we discussed in class, it is difficult to bring constitutional claims against private parties like the homeowner's association. A few of you cleverly suggested that there might be some kind of prescriptive right that would develop because Felice has been setting up these displays for 15 years; this issue certainly would be worth researching. Some of you researched the records to make sure Felice owned the property. I think this would not be an efficient use of your client's money unless somebody called her ownership into question.
QUESTION IG: BEST STUDENT ANSWER #1
Nuisance
1.What nuisance regime is used in jurisdiction? (affects Liability Rule, Remedy)
2.What else happens in HA? (How different is this)
3.What else happens in local area?
4.How much traffic increase?
· Any accidents
· Any trespass
· Noise
· Traffic law violations
· Times of day effected (worse during rush hour/sleeping time)
5.How many neighbors upset?
· Do these folks complain often? (establish a pattern, use to show "bad" intent)
· Has client ever argued with these neighbors (motive)
· Have these folks told complaint to my client? (potential out-of-ct. agreement, save $)
6.How many kids in subdivision? (Public Benefit?)
7.What notice, if any, did client have other than Pres. of HA? (How free of blame is she?)
Homeowners Assoc. Issues
1.Any master deed, client deed restrictions?
2.Was Amendment to by laws done correctly?
3.How many people affected? (Is this arbitrary).
4.What is makeup (religious) of HA? (If Christians in minority may claim discrimination & goes to arbitrary/unfair)
5.What is makeup of HA board? (Support above)
6.Any evidence of affect on Property Value?
7.Other than traffic, does HA have rational reason for acting?
8.How strict are courts with owners in such HA's? (Will affect any chance in court, client wants to know any way to keep display).
9.Is there a gatehouse to keep traffic out?
10.Can the street be dead-ended if it isn't to stop thru traffic?
11.Is 50 feet a std. length for X-mas lights or will that number hinder efforts to comply? (proof of arbitrary.)
12.What other religious emblems/festive emblems allowed? (Proof of arbitrary.)
13.When did problem arise?
· Only after client added even more stuff.
· Is there a level that is tolerable? (More than 50 ft. but less than as is?)
CoralCity Zoning
1.What are the existing zoning regulations?
2.What is rationale behind them?
3.How many rulings have been made?
· Who is angry (may support client)
· Selective enforcement
· Who is on the board?
· How difficult is it to get permit?
4.Do rules protect "existing character" of the community? Property Values.
5.Are the existing terms of the rules vague?
6.Is there a comprehensive plan in this regard?
7.When were rules made?
8.What is make up (religious) of locality? (Proof of arbitrary/unfair or discrimination)
9.What has happened elsewhere with aesthetic zoning boards with like restriction?
10.What is defined as a decoration?
· How large/small
· Permanent v. Temporary
11.Any established causal link between property value and external decorations.
12.How corrupt is the process?
General Questions
1.Have there been any Christmas light cases?
2.Is client a minority or protected class in any way? (Use as arbitrary/discrim. issue.)
3.What protections are there for religious expression? (Public Policy Arg.)
4.How far does the 1st A. go? (Pub. Policy)
5.How much is "a whole lot of lights"
6.How big are the animals?
7.What can she live without? (Length of time, decorations)
8.Would she compromise? (Time, Size, Volume)
9.How much money is she willing to spend fighting? (Litigation is costly)
10.Where among the 85 lots is hers? (How many people could complain, how much effect is she having.)
11.Did she buy before the complainers?
12.Did they know she did this?
13.Did the complainers ever encourage her?
14.During the HA vote did everyone vote?
· How democratic was it.
15. Does jurisdiction differentiate betw. master deed/deed restrictions and subsequent HA rules?
QUESTION IG: BEST STUDENT ANSWER #2
Nuisance Law
A.Legal Inquiries
-Plat of EE (special layout of house & roads).
-What test does the juris apply? Morgan, Shultz, Rest 1, Rest 2
-Case law on nuisance litigation
-btw. private individuals
-homeowner & assn's
B.Factual Inquiries = focus on being able to balance burden & benefits of holiday lights & displays
Burden
-How far do the lights emanate (lots are 2 acres big, might not be major interference)
-When are lights on? (daytime display not so burdensome)
-Are they musical lights? Flickering lights?
-What is "steadily increasing"? (is the nuisance "going" to the other residents?)
-What is "local attention?" (media coverage can be very concentrated or very burdensome — trucks, satellites)
-How big are her trees? (light can be shining down over neighborhood).
-How many care are passing by to see the display?
-Is it just traffic? Children can be trotting up and down others' property, people parking on other lots & walking to Felice Navidad's house? (more burdensome)
-Interview neighbors (get specific reasons why they are complaining; could there be negotiations?); who's complaining besides family?
-When is traffic bad? (time affects burden — people are _ home during the day but, of course, they might _ be able to sleep at night).
Benefit
— Interview neighbors: do any appreciate the holiday glee.
- What is actually done on the property? Does Ms. Navidad open a wonderland - games for children during the holidays?
- Do Ms. Navidad and her family open the decorating time up to their neighbors? (community unity).
- Does Ms. Navidad do any charitable work while the display is up, using the display: fundraise, collect gifts, can drive?
FHA — Discrimination
A.Legal Research
-What are the state anti-discrimination policies?
-Case law:1) Interpreting statutes
2) Dealing with restrictions on relig. expression, holiday displays; explaining what's protected?
3) Constitutionality of such restrictions
-Could this be treated as a time, place & manner restriction on expression-case law? (Why: prohibition of religious expression can be violative of FHA & FHA-like rules)
B.Factual Research
-What do "holiday elements" include? Is there a nativity scene? Is there a menorah?
Homeowner Assn's Internal Policies
A.Legal Research
-What are the existing by-laws? (Is this already addressed/mentioned? Are there similar restrictions -—such as on flags/regular lighting?)
-Are there any housing codes that require certain lighting comparable to the wattage/# of bulbs use by Ms. Navidad?
-How does the h'owners' assn. make & amend its policies?
-How have courts of that jurisdiction dealt with policies made?
-Do they defer to the maj. vote of the homeowners?
-Would Ms. Navidad have to show that the restriction on her property is unreasonable on the surface of the entire community?
B.Factual Research
-Same balancing as nuisance
-Do other houses have similar displays? (arbitrary towards Ms. Navidad?)
-Was there someone in Ms. Navidad's house before her and was there a similar display?
Zoning
A.Legal Research
-Look up regulations Pres. of assn. mentioned
-What are the "external decorations" the regulations mention? (a mural of a naked person is distinguishable from a Santa Claus though both are arguably "decoration")
- Look up case law interpreting "external decorations";
-Do the regulations prohibit amusement park-like activity explicitly?
-Do they allow parks such that Ms. Navidad's house could fall under that deliniation?
-Are there any special exceptions built into the regulation that address holiday activities?
Sub Issue: Aesthetic Zoning (AZ)
-How do regulations address AZ — is there language authorizing such limitations (Dermeke: "offends sensibilities," Stoyanoff: "standards of beauty and conformity")
-Are the regulations vague? In other words: - are there technical terms used? (i.e., wattage)
-Is there a common understanding in the relevant industry?
-Are there procedural safeguards? In other words — does the architectural board have restrictions on how arbitrary it can be (voltage, wattage, specific colors)?
B.Factual Research
-Effect on prop. Value, if any?
Question 1J: Model #1: The first thing I would do is to research Annie's deed, find out what is says, and then try to find this "pre-existing easement" that it seems to reference. It is unclear from Annie's memory whether this "easement" referred to was another document, or perhaps just the right-of-way across the land. Looking at the documents will enable me to determine whether an easement, RC, or ES has been created, what exactly the requirements are (it is positive right-of-way or negative--don't obstruct or positive--cut the trees) and then I could go further to research the applicable law and relevant facts. The following are areas I would explore:
A.Has an easement been created to fly over Annie's land?
1.Is there an express easement? Again, I would like to see what Annie's deed says and whether there is another "deed-like" document that expresses the easement. In order for there to be an easement, it would have to have all the formalities of a deed. If it is specifically laid out in Annie's deed, perhaps this is enough. I'd have to see. It seems very unusual that it would be in this deed. If it exists, it seems more likely that it would be in a separate document. I would try to find this document and once I did, I would see if it has all the formalities of a deed. If not, it wouldn't be valid and I would move on to other areas. I would read the language and see whether "flying overhead" is consistent with the scope of the easement. If instead it talks about crossing the property to get to the airport, it probably doesn't apply to this use and therefore flying over was not part of the parties' intention so the express easement would not apply. If it does talk about flying over, I would do some factual research to figure out if the burden has increased--are there a lot more planes not than there were? Are the planes bigger? louder? different? flying lower? If any of these things are true, we would argue that the use has changed over time. However, this may not help too much, since the court may just limit their use but still make Annie trim the trees. I would probably have to look into the law for remedies in this jurisdiction also.
If it is found that there is an express easement that they can use this overflying right-of-way, I would then research to see whether Annie's trees are truly obstructing it. How have courts interpreted this sort of thing in the past? How low do the planes fly? How high are the trees? What is the custom in the industry? (lots of planes take off over houses, etc.). With this information we could argue that Annie does not have to trim her trees to not obstruct the flyers.
2. Implied easement. If the right of way does not qualify as an express easement-- inadequate formalities, wrong intent (not in terms), or the increased use is beyond the scope--the airport may (and seems to be planning to) argue that an implied easement has been created. Since jurisdictions usually don't allow implied negative easements, the language of the grant and interpretation would be very important. Does it talk about a right-of-way? that growing trees might obstruct? or does it talk about not growing trees, etc. Of course, I would have to look into how the jurisdiction treats this. The airport may argue that they have:
a. Easement by estoppel. They may claim that since they have used the right-of-way for 3+ years, they would be able to have it permanently. I would research the law in the jurisdiction to determine whether it recognizes this (only 1/2 of states do). I would then look into the facts to see if the airport relied on this right-of-way. Did they build a special runway going this direction? I would check case law to see how much reliance is considered detrimental and what time period that the owner allows seems like too much.
b. Easement by implication. I would look to see whether the property was perhaps all owned by the airport at one time and maybe split in 2. Though since the airport would be retaining the right-of-way, the state might be reluctant to enforce. I would look into statutory and case law to see how they treat this. I would research records to see if this was a pre-existing pathway (did they fly planes over here when it was split). I would also see how necessary the easement was when the grant was made. Could they fly other directions back then? (Are there big buildings on the other 3 sides?) And then I would check to see how the state handles this. How much necessity is required? If it wasn't necessary, depending on the jurisdiction, we could defeat this claim.