3/8/99
III.	Private Land Use Controls
A.	Easements
Chapter 20 (pp. 909-923)
Upham’s favorite part: raises fundamental questions about human society and law’s role in it.  Does it in a more focused way and in a way that is recognizable to all of us.  How society structures living arrangements or the use of land, not just residential.
2 big ways society structures use – cities, condos, apartments, organize how physical assets are going to be allocated, under what rules.  Forces people to cooperate
1)	Public Zoning Requirements: have society determine what the rules are going to be, pass through political process.  Includes other public controls over land use: building/construction standards, environmental laws.
2)	Private land use: Contracts Principles. Have the government not intervene, and instead have individuals enter into consensual agreements, contracts, about how they are going to share the use of land.  Book includes concurrent estates here, Upham disagrees, not a major tool in land use development.  Group of tools individuals can use.  See Wheeler/Morse, agreements created by individuals for their individual purposes.  
Defeasible Fees: Get into the use of these tools for private land development.  Already encountered in the Wolf case: exemplifies one tool for private land use, defeasible/determinable fees.  Hallenbeck put in each deed that every grantee had to build a house of a certain price by a certain date.  Wanted to control how the development was going to develop.  Didn’t want to just sell the lot and hope it would develop in a way that would make it easy for him to sell unsold lots.  Wanted to be able to tell anybody coming in was that everybody in the development would live in an expensive house.  Required that they be built by a certain date.  Back then he chose a defeasible fee, he wouldn’t do that today.  Can lead to a forfeiture, that’s what he wanted.  Ran up against a court that would interpret his deed against his interest, driven by the nature of the times and the universal policy that courts will avoid forfeitures, particularly when it comes to land.
Easements: Cushman case, have a classic situation of a right of way, easement situation.  One lot is landlocked so lot 2 and 3 had no other way of getting to the public road in 1929.  At the partition, the owner of lot 2 and 3 wanted to get a right of way over lot 1.  Traditional use of easements, a right of way to get to a water source to take cattle to water, or to get water for self.  Or a right of way to get to a public highway.  Now used for many different things.  Gated community, the roads in the community are private roads, every owner of a lot has an easement to use the roads to get to the gate.  Fairly straightforward.
Equitable Servitudes v. Covenants: Agreements enforced in law v. those in equity.  Enforced according to the terms and contract interpretation.  Equitable servitude, the court will either interpret a document according to what it thinks is fair and impose an equitable solution to the conflict.
	Private land use is similar to the estate system in that formal rules are very important: 
-	Conveyance structures still important. Will see lots of straws in real estate development transactions.  In order to comply with formalities which were set up before covenants would be enforced by the courts.
-	Easements/covenants/servitudes: bind people to covenants or agreements they didn’t make and give others to whom that promise was not made the ability to enforce the promise.  In covenants and servitudes it runs with the land.
-	Learning how you can make arrangements with an existing set of parties that will continue long after those parties are no longer in the picture.  Want to be able to say to people later that all are bound by certain restrictions to use their land in a certain way.  Inherent in the land, run with the land.  Part of the land, binds people to use the land in a certain way that didn’t agree to the promise.
Originally only available with easements.  Very old, considered to be real property interest.  Cushman, a prime example.  Doesn’t require a lot of formality to set up easements.  Considered part of property law regime.
-	To create an easement have to have a writing have to be registered in the registry of deeds, like fsa.
-	Don’t have to have consideration.
Easement: privilege without a profit such as the right to walk over the land of another but not take anything from it.
Positive Easement: confers a right to do something on the land of another.
Negative Easement: imposes a restriction on the use which the owner of the servient tenement may make of his land.
Covenants: restrictions/obligations put on land for the benefit of an individual.  Sometimes not a covenant – Johnson v. Whiton, to control land after death.  Sometimes a situation like in Wheeler/Morse, landowners want to use a particular resource, want to make sure if one sells to other, the new owner will be responsible for the upkeep of the agreement.  A particular deal which was not intended to be permanent, didn’t enhance the value of the land, but enabled a group to exploit it in a coordinated fashion.
Courts were hostile to the enforcement of covenants:
-	dead hand would continue to control
-	cluttered up conveyances, had to find out about or take the risk of getting less than they thought they were getting.
-	Wheeler/Morse, might work for them but don’t want to burden the land for others.  Want it to be as unfettered as possible, to enter into commerce.
Courts set up formalities to make covenants run with the land, and enable to enforce promises not made.  Archane
-	Intent
-	Touch/Concern
In Wheeler/Morse Cases, old style covenant regime.
20th Century real estate transactions: about producing wealth from land by residence.  To organize a development so that all the houses look the same, uniformity.  Far from hindering the entry of the land into commerce, made the land more valuable for residences.  Guarantee that the developments won’t change in important ways.  Prevents unpleasant surprise. When courts came to these they were burdened by common law restrictions built up to knock down covenants.
Relaxation of doctrine in different ways.
Neponsit: is the most important case that says lets not take these formalities central to Wheeler/Morse, too seriously, look at the substance of what they were trying to do.  Marks the beginning of the decline of formalism in land use law.  Sticking with the formalities, just going to look beyond them to determine in an equitable way what they meant, destroys formalism.
Tulk v. Moxhay: less formal regime for covenants, will say even though not a covenant, to allow someone to disobey this promise would be unfair so a court of equity will not allow him to do it.  Started equitable servitudes.  Didn’t bind according to the necessary formalities.  Used a straw, said I didn’t make any promises, I’m remote so the covenant can’t run.  The court said you knew about the promise, so you bought the land knowing about it so it would be unfair to let you disregard.  Created equitable servitude.  Similar to laches doctrine.  Can’t win at law, iron clad rules, but clearly deserve to win, same relationship between covenants and equitable servitude.
Easements have existed from time immemorial as real property interest rather than contract/covenant.  Had important consequences. Difference between easements and covenants broken down in different ways, sometimes treated similarly but to do so have to go down different doctrinal streams.  The courts like to keep them separate:
1)	In remedies available if someone violates a contract v. violating real property interest, trespass.  Trespass remedies would get equitable relief and damages.  Having an easement was preferable to having a contract.  Doesn’t make much different anymore.
-	Eminent domain: when the state takes property from you, and provides compensation.  If part of the property is your easement you will be compensated.  The state can take it as long as for a public purpose and they pay you fair market value, only have to pay if it’s a property interest, not if it’s a contract interest.  Contract rights don’t get much protection.  Easements treated differently by court when determining who gets money.
-	Conservation covenants: set up regime to force landowners to use it in an ecologically friendly way.  Covenants to allow certain things to be done on the land, doesn’t cost money.  
-	Conservation easements: would like it treated in a certain way.  Convey to a third party an easement.  If the government comes in later and takes the entire area and puts in a nuclear waste facility.  The contract rights are gone, the easement is compensated.  New kind of easement, novel, would have been approached by covenant, not by easement.
-	Easements are assumed to last forever unless it says they don’t.  Contracts/covenants are not assumed to last forever.  Extinguished after a certain type of use has occurred.
2)	Difference between easements as a property right and covenant as a contract right.
-	Easements limited by types: right of way, etc.  Covenants came in to do things that easements couldn’t cover.  
-	Easements limited to commercial uses.  Private, recreational, non commercial uses not covered by easements, used covenants.
-	Covenants used in negative restrictions.  Easements usually allowed one party to do something on another person’s land, not restrictions on the use of the servient tenement.
-	Only easement available at common law, easements for light and air, affirmative, have to allow the light and air to come over to my land.  But interpreted negatively, you can’t build on your land to stop light from coming onto my land.  Most rules about land are things you can’t do.
-	Couldn’t use easements to create affirmative obligation on the owner of a servient tenement.  A and B could not create an easement where A had to go onto B’s land to water the flowers or to mow the lawn, affirmatively.  Neponsit: good example of affirmative duties, you could force someone to pay dues to a homeowner’s association.
3)	Typically used in different situations:
-	easements were unilateral, did not have to part of an agreement.
-	Easements could be created by implication, Cushman midway.  Farm divided up into different part, even if there had not been a recitation of specifics, if lots 2/3 had no other access to the public roads, the court would imply access to that road, courts will not imply covenants, have to be there.
-	Buffalo academy: concept of a uniform building plan.  A land developer has a large acreage, in there have all of the agreements, but forgets to put it in the deed.  Can’t imply it, what can you do?  Uniform building plan, imply restrictions throughout.  The court comes close to implying a covenant.
-	Can gain or lose an easement by prescription.  If you use a right of way and do it according to the 3+1, absent possession, you get it.  If you have an easement and someone else uses it, you can lose it by adverse use.  Not true for covenants, had to be some kind of agreement.  Rhue v. Shyann Homes.  People building certain kind of homes, others came in and build new kind of home.  Didn’t have a right to do it, close to creating a covenant by prescription.
3/9
Easement In Gross: to an individual person, if A gave B an easement engross to walk across the land, could continue to walk across the land once its sold to C.
Easement Appurtenant: goes with the property, give B a right to walk across the property, C no longer has a right to walk across A’s land.
-	Sidewalk: a public way, a right to walk over it by anybody.
-	Playground in subdivision: the people who are members of the housing development can use it.  The assoc are the owners of the servient tenement
	Servient tenement: the land burdened by the easement.  
	Dominant tenement: the land the homes are on.
	Who owns the playground?  The developer would have originally owned the land.  The association owns the playground.  Homeowners assoc owns it as a servient tenement the dominant tenements are all the home lots.  These are appurtenant leases, whoever buys it has the right to use the playground.
Rights others have over your property: 
-	utility wires, easements in gross, above or below the ground.  
-	Normally the presumption is that they are non-transferable.  
-	Most common, they are transferable.  Commercial easements in gross are transferable.  ATT – Baby Bells.
Hypos in syllabus about Mary Watson and horse Sally, 
a.	permission for “Mary Watson to exercise her horse Sally on the other lots.”  Mary gets an easement engross to exercise her horse, she can bring her horse back to exercise it but can’t sell it.  Its not transferable in principle.
Cushman Virginia Corp. v. Barnes
Facts: one big property, midway, divided into 3 lots and given to three siblings.  Only one lot had access to the main road.  The others used access through lot 1 to get to the road.
Issue: want to enjoin the person with ownership of lot 2 from interfering with the use of the road.  Lots 1, 2 still landlocked
The basic question: Cushman wants to divide the premises, won’t make money by selling it to two people as the trial court wants.  What are lots 41 rights to the easement?  As long as it doesn’t pose too great a burden for lots 1 and 2 to bear, lot 1 can drive over their land.  Lot 1 has the same rights as 41, before divided, lot 3 had the same rights.  Lots 1 through 42 all have identical rights, and identical to the rights of the dominant tenement undivided.  An easement appurtenant always goes with any conveyance of land unless there is a clear statement that it is not being conveyed.  Every one of those lots has a right to use the easement.
Easement Appurtenant: the case here.  Lot 3 clearly affects the use of lots 1 and 2.  Useful for the land, before 1929/30 it was necessary to make use of the land.  Cushman wanted to use it for their business purposes to drive things back and forth over the land.  They were a corporation, using the road more than it had been used.  1895 easement came about, no motorized traffic, wagons.What is Cushman going to use land for?  Building a housing subdivision.
Rule: Trial court wanted to limit use to what it was used for before, a farm, residences.  Cushman claimed that it should be given the width of a public road.  The court disagreed because it wasn’t a public road and the court shouldn’t try to make it one now.
Cushman not happy: wants it to be a public road and the people living there to be able to use it to get to the highway.
Did he win? Unclear who won.  If its divided up, a percentage.
Is this a green light for Cushman?  What happens after this case?  Not a complete victory, a 15 foot road.  
Are there any limitations on the use of the road that may mean that Cushman can not fully develop?
-	the court did not widen the road, not wide enough for 2-way vehicular traffic
-	partial victory for both sides.  Maybe just have 1-way road.
-	Don’t know whether the road is paved.  Could be a burden on lots 1 and 2, permanently alters the property.  
What kind of limitations on using any kind of appurtenant easement are there?
1)	If the use of all those lots requires some change to the easements, paving/grading.  1895, the type of road that would have sustained horse drawn traffic might not be capable of sustaining use by heavier autos, even if not more frequent.
2)	Could the owner of lot 3 in 1906 when he brings back the first auto for the area, no question about using for horses, brother in lot 2 says get that off my land?  Not a horse, now it’s a car.  Not foreseen in the original easement.
3)	Some right in the servient tenement in the road being maintained in a certain way.  Why should the servient tenement care?  May be able to use it, easements are non exclusive in general.  Anybody coming on to lot 3 would be able to use it.  The people on lot 1 have a right to go on to the easement.  The dominant tenement does not have the right to exclude the rights of the servient tenement from going on to the easement.
4)	Does dominant tenement have a right to complain about the servient tenement’s use of the easement?  Has to get to the point where it increases the burden of the easement.  
5)	Reasonable Use: P. 918, if the instrument creating the easement does not limit it…called it a right of way, that’s it. (Gordon v. Hoy, putting in pipe lines on a right of way, a different use, not a right of way.)  Then to any use it can reasonably be devoted.  Any reasonable use of the dominant tenement, but subject to the qualification that no use different from when it was created that imposes additional burden on the estate.  (Gordon v. Hoy, not much add’l burden, would have come out the same way if the owners of the easement had said we will extinguish the right of way just want to put in pipes.  Now have no burden, but that’s not what burden means here).  
Burden: a new kind of servitude, new limitation to the freedom to exclude on the part of the tenement owner.
6)	The court said, Gordon v. Hoy, the pipeline is a new burden and the different use of the road is not.  Intensity of use, as long as it is the same use, defined broadly.  If it was a right of way in 1895, that right of way/easement will continue to be available for a right of way for any reasonable use that tenement owner can put it to.  No limitation in the easement, if you’re dividing real estate, just because it is one lot now doesn’t mean it always will be.
7)	Implied Easement: If divided into 2/3 lots, all would have an easement otherwise landlocked, have to imply an easement by necessity.
Anomaly between Cushman and Gordon v. Hoy.
-	Note 1: easement of unlimited reasonable use.  What would you want to know to be able to evaluate this case.  Where is the building?  Reciprocal easements, like driveways.  Is it on the lot that is benefited by that easement or some adjoining lot that the person now owns.  If the lot is beyond the property, the restrictions on time and use seem reasonable, and they should not be able to use it at all using to get to another lot that was not part of the original deal.
-	In Cushman, suppose he gets the easement, then buys another lot and decides to subdivide?  Can the people on the new lot use the easement?  Increasing the use of the road, but so did the first lot.  Cushman’s development conveys the easement to the new easement to use the private roads, but do they have a problem when they get to lot 2.  The new Lot 4 is not a dominant tenement, unless you get an agreement by lots 1 and 2, the people in lot 4 won’t have an agreement to use the easement.
-	Suppose Cushman wanted to start a golf course, motel, bed & breakfast?  What are the limits, how should we think about those.  
Review easements, then go into cases that start covenant (2), 934-946, Wheeler and Morse.  Easier to understand these cases if you read the material after the cases, 942-946 before you read the first two cases, explains it better.
3/15
Cushman Hypos:
1)	What kinds of easements would be created by the following language in the partition document; 
2)	Which would survive the failure of Mary Watson to mention them in her deed to Cushman; 
3)	Which would not survive conveyance of lot 3 even if mentioned?
a.	permission for “Mary Watson to exercise her horse Sally on the other lots”
Easement in gross: specifically for MW to exercise a specific horse.  Reference to specific individual.  No indication its suppose to extend to other people.
Arguments for easement appurtenant: on the other lots, wouldn’t be an easement at all if it didn’t mention the lots.  Would you have a partition in 1895, based on Cushman.  Discussing Durette Road, now hypothetically adding discussion of Mary Durette Watson and her horse Sally.  Strong inclination to find it appurtenant because its in the partition document.  MW is at that time receiving lot 3 which has an easement over 2 and 1, hard to imagine her using the road except as Road 3.  
What about when Mary moves to Ohio, comes back with her horse Sally, does the easement in A still exist?  It still exist if it’s a legitimate easement in gross, its her easement.  Survives recreational problem, more necessary.
What if Mary shows up and the current owner of lot 3 buys Sally, what happens if the new owner wants to ride Sally.  She would need to get her own easement because can’t transfer personal easements in gross.  Limited to that person, limited to time, a life and being.
b.	permission for “Mary Watson to exercise her horses on the other lots”
If her property was a horse farm, easement appurtenant, run with the land because it’s a benefit to property.  
Why when you mention Sally its not appurtenant, but when you generalize it to her horses it is?  Permission for a single horse could not possibly run with the land, the horse will die.  The fact that the lifetime of a horse is limited, Mary could stand for her heirs and assigns, or owner of the piece of property.  The shift from an individual horse to her horses as a horsing business.  Covers the recreational problem if it’s a business.  
c.	permission “for the owners of all three lots to use the other lots for the purpose of fox hunting”
Easement appurtenant: because referring only to the lots and whoever owns them and not to any specific name.  Fox hunting could be done by anybody, doesn’t require that you own foxes or land.  In order to avail yourself of this easement you have to own one of the lots.  Goes with the lots.  Owner sells to someone else, the new owners would be able to fox hunt on the lots, and the former owner would not be able to.
Any problem with this easement under traditional interpretations of easements?  Problems when for pleasurable purposes instead of for business purposes, the problem between c and d.  Easement typically does not run.  That has changed but historically easements for pleasure were failed.  Fox hunting becomes a mere license, permission to do something which can be withdrawn.  An easement cannot be withdrawn, it’s a real property right.
d.	permission “for the owners of all three lots to use the other lots for the purpose of grazing their horses”
More commercial, taking your horses or cows over someone else’s land to get the water, benefits the land.
Easements still benefit land rather than just the owner.
B.	Covenants, servitudes, and planned communities
Chapter 20 (pp. 934-970, and 1001-1018)
The rest of the private land use section will be devoted to covenants and private residential governments.  We start with the basic requirements spelled out in pp. 934-946 and exemplified by the Wheeler and Morse cases.  By the end of this segment, you should be able to identify burdens and benefits, tell which, if either, needs to run, what kind of privity is required, and ultimately, whether the covenants will run.
A, owner of Whiteacre, and B, owner of Blackacre, wish to agree that Blackacre will only be used for residential purposes.
Benefit runs with the land: If A sells to C, C may enforce the covenant against B, even though C was not originally a party to it.
Burden runs with the land: If B sells to D, A can enforce the covenant against D, although D was not originally a party to it.
Three requirements have to be fulfilled to enable a covenant to run with the land at law:
1)	Intention: A written instrument satisfying the SOF.  The modern approach is to determine intent based upon an examination of the instrument as a whole.
2)	Touch and Concern: a method of restricting kinds of promises that may devolve to remote parties.  Only those which touch and concern the land itself will run to these subsequent holders.  The question is determined by the court’s discretion based on the facts of each case.
-	Burden: If the promisor’s legal relations in respect to the land in question are lessened – his legal interest as owner rendered less valuable by the promise – the burden of the covenant touches or concerns that land;
-	Benefit: If the promisee’s legal relations in respect to that land are increased – his legal interest as owner rendered more valuable by the promise – the benefit of the covenant touches or concerns that land.
-	Where the parties, as laymen not as lawyers, would naturally regard the covenant as intimately bound up with the land, aiding the promisee as landowner or hampering the promisor in similar capacity, the requirement should be held fulfilled.
3)	Privity: for the burden of a covenant to run at law, there had to be horizontal privity between the covenantor and covenantee and vertical privity between covenantor and assignee.
-	Vertical Privity: requires that the party suing or being sued have succeeded to the same estate as the original covenantee or covenantor.
-	Horizontal Privity:
a.	A and B could make a covenant that would run with the land only if A and B were in a tenurial relationship, as landlord-tenant or reversioner-life tenant
b.	Simultaneous Interest Rule: requires that covenantor and covenantee have a continuous and simultaneous interest in the same property.
c.	Either that a continuing tenurial relationship exist or that the parties impose the covenant while the land is being conveyed from A to B.
Spencer’s Case
Facts: P, the landlord, leased realty to a tenant.  The tenant covenanted for himself, etc., to build a brick wall on part of the leased land.  T assigned his interest to J, who assigned to D.  
Issue: D refused to build the wall, P brought an action of covenant against D.
Rule: The covenant was not binding on D, as the wall was not in being.  The court laid down four principles for the resolution of the issue of when a burden shall run with the land:
1)	When the covenant extends to a thing in being (“in esse”), the covenant shall run with the land and bind the assignee even if there are no express words in the instrument purporting to bind a later assignee.
2)	If the covenant has to do with a thing not in being, there must be express words evincing an intent to bind the assignee.
3)	The covenant will run and bind the assignee only if it “touches and concerns” the lease property and is not merely collateral.
4)	The covenant will run and bind only those in privity of estate with the lessor and lessee.
Wheeler v. Schad
Facts: After already entering into agreement, the parties later agreed to conduct and maintain a dam to be owned and enjoyed jointly and in equal shares.  One party mortgage his mill.  The new owner was in possession when the dam was damaged, requiring extensive repairs.  When approached by the other parties about cost and repair, D told them to proceed.  After the work was done, D refused to pay.  The lower court found for D, P appeals.
Nevada 1862
-	H, Du, B  Ds, I, McW, Duv, purpose of the land is to erect a quartz mill.  Crushes oar and takes out quartz.  
-	H, Du, B  Ds, I, McW, Duv, six days letter they have an agreement to build a dam and a flume and to maintain it.
-	B  Wheeler
-	1868, Ds, et al  Schad
-	Damage done to dam and flume and something has to be done about it, original grantors contact Schad, need to fix it.  Expect Schad to uphold the bargain made 6 days after the grant.
-	Wheeler et. al. v. Schad, because he took over the property.
Issue: D is liable on the agreement entered into between D’s grantors and P; and secondly, if not, that he is so upon his own agreement with P, authorizing the work to be done.
When we can make people perform promises they did not make, and when we will allow people to enforce promises when the promise was not made to them?  And when they didn’t agree to abide by the promise?  There are 3
1)	Intent: the parties to the original agreement must have intended that it bind their heirs and assigns.  And must have intended that heirs and assigns.  Must have intended it run with the land.  The heirs and assigns of the coventee have the right to enforce it.  And the heirs and assigns of the coventor have the right to perform the promise.
2)	Touch and concern: two test, 
a)	Berger intent effectuation test: someone who comes to the agreement, in a deed which may be burdened or benefited by a promise, or in a deed registered in the registry of deeds.  If when they see the promise they think of course these people would want this promise to be binding on me, otherwise their intent to have the covenant run with the land would be meaningless.
b)	Scientific Test: Clark, 943-944, if the promisor’s legal relations with respect to the land in question are lessened, the burden of the covenant…Is the promisor giving up some legal right that she previously had that relates to the land?  More objective, legal relations with respect to the land, still a lot of room for interpretation, but clearly narrower more difficult to meet than the intent effectuation test.
-	Burden: If the promisor’s legal relations in respect to the land in question are lessened – his legal interest as owner rendered less valuable by the promise – the burden of the covenant touches or concerns that land;
-	Benefit: If the promisee’s legal relations in respect to that land are increased – his legal interest as owner rendered more valuable by the promise – the benefit of the covenant touches or concerns that land.
3)	Privity: 2 kinds
a)	Horizontal: describes relationship between promisor and promisee at the time of the original promise.  Describes relationship between the promisor and his heirs and assigns and the promisee on the other hand and his heirs and assigns.  Pr  Pee
				H/Assee	H/Assign
Covenant Analysis:
1)	Who has the benefit/burden of the covenant here?  Because mutual agreement with both parties, there is a benefit and burden to both parties.  Mutual reciprocal promise.  Interpreting actual cases, concrete agreement, one party wants another to do something or refrain from doing something.  In this case, Wheeler has the benefit, Schad has the burden.
a)	Could envision a case, Schad v. Wheeler, but that was not the case.  The agreement is reciprocal, and true of potential dispute.  But when get to a concrete dispute only one benefit and one burden.  One party trying to enforce a promise against another.  May be other benefits not being enforced in the lawsuit.  
b)	Ask what is the particular purported obligation P is trying to enforce.  As to that obligation, who has the benefit and who has the burden.  Here two obligations, to maintain and to pay, but only the obligation on the part of D that is being enforced.  P has performed their obligation, they were burdened by the covenant and they performed.  Once there is a breach, conceivable that both sides may breach, but in any given claim one party is going to have the benefit and the other will have the burden.
c)	Frequently one party will be benefited and others will be burdened and it will be unilateral.  The grantor will often hold only benefits.  Often transforms into the home owner’s association.  Holding portfolio of benefits and they have the right to enforce benefits against the homeowners, owners of land that have burdens.  
The plaintiff also has the benefit and the defendant always has the burden.  When the dispute has developed to A sues B, A has benefit, and B has the burden.  Not always developed to the stage of P and D.
Here Wheeler has benefit, trying to enforce an obligation on Schad, an obligation Schad never made.
2)	Which if either (benefit or burden) has to run?  Does the benefit run?  In the context of the promise that is trying to be enforced here, we can describe Herd, Dosier, B, etc. as grantors and as to the promise they were the ones’ who promised to perform it.  They did what they were supposed to do so they were they promisee, obligation to pay ½ of the repair cost, they were the promisees to whom it was being promised.  Ds, I, McV, DV were the promisors, promised to maintain and pay for the maintenance of the dam.  With regard to this obligation they were promisors.  HDB were promisees.  The promisor becomes the covenantor, promisee becomes the covenantee.
a)	Covenantee is a subcategory of promisee.
b)	Does the benefit have to run, if it does not need to run you don’t have to decide if it does run at all.  Making the be
c)	Making the burden of a promise run with land to people who never promised to do it is even more difficult.
d)	If 10 days after agreement this problem occurred.  HDB said to DIMD we are going to repair it, DIMD said go ahead.  What defense would DIMD have, the benefit has not run, nor has the burden.  More importantly, do we care whether the benefit runs?  Just a regular contract, the land has not been passed, all the original parties are still there, don’t have to worry about covenants running.  May be some other defense, but doesn’t concern covenants running with the land because neither the benefit nor the burden has to run.
Have to run means have to run to enforce the covenant in this case?  Question of if still have original parties or new parties.
Benefit does not have to run: There are two original covenantee’s in this suit, if just Wheeler then none of the original covenantee’s here.  But the benefit does not have to run because original covenantee’s still here.  Need to be part of the original agreement and part of this lawsuit.  Don’t have to enforce a promise not made, because promise made.  Dosier and Hurd are P.
Burden does have to run: because we are enforcing promise made to the original covenantor because the original covenantor is not there.  Schad was not an original party.
When come to promise in land and the two parties are the people that made and received the question, end of discussion.  This is a contracts question, if someone makes it and tries to enforce it, don’t have to worry about it running with the land.  Its only when one of the two sides was not present at the original promise we begin to think about it in property.  If P, with the benefit of the promise, trying to receive something from original promise, then the benefit of the promise goes to somebody that was not there.  Could say, I didn’t make the promise to you. Have to find some way to make it possible for P to get the benefit of a promise that she was never part of it.  So we make the promise run with the land, to find a way to enforce the promise.  If it has to do with land and the burden runs with the land.
-	Who were the parties to the original promise
-	Who are P and D, if the answer is different from first one, either the benefit or burden or both have to run.
You can enforce it against an original party for the entire amount.
3)	Does it run?  For it to run, 3 part test: Intent, touch and concern and privity.  Different depending on trying to make a benefit or burden run because its harder to make a burden run than it is to make a benefit run.  Bad example since the benefit does have to run.
a)	if it were just Wheeler, the benefit would have to run? 
Intent: probably so, they were looking to the future and intended to keep it up.  Can imagine a situation where it would not run but makes more sense if both parties can rely on it into the future and both parties to contribute to its upkeep and if they don’t, can sue them.  Why would you make a promise that would not be maintained into the future?  The benefit is the obligation to pay.
Touch and Concern: intent effectuation test (Berger Test).  Would the reasonable person coming to this agreement be on notice that the parties intended this to run?  Unless intent clearly explicitly made if normally thought not to run.  But arguing functionally, same analysis as.  Look at the promise outside of the deed and ask is this the kind of promise that someone coming to the situation, the promise, would that person expect it to be necessary, the running of that promise be necessary to subsequent owners to realize that intent.  Hard to think of when you would have intent and not have touch and concern.
More difficult under the scientific test: Taking on a legal right, and giving up right not to be obligated.  Does it affect their legal relations to the land?  No, its an obligation to pay money, repair a dam.  But not an obligation to do anything on the land that Schad has bought.  Not a restriction on use of land, not a servitude.  No restriction on Schad’s legal relationship to this lot.  The scientific test would say no touch and concern where intent effectuation test would say yes touch and concern.
Legal obligation to the land: bundle of rights that owners to land get, the right to alienate, develop, exclude others, possess it, go on it.  None of those rights was diminished in any way by DIMD’s promise to maintain a dam which is on a separate plot of land from where DIMD build their mill and conveyed to Schad.  If the dam was on Schad’s land, different story.
How does this effect water rights?  Riparian jurisdiction, anyone along the watercourse gets rights to the flow incident to the land.  Simultaneous interest in the right to the flow.
-	We don’t know if riparian jurisdciton, Nevada PA
-	Even if was riparian would mean that every agreement between riparian owner as long as applied to the flow of water would constitute touch and concern and give you privity.  The point of these three requirements is to make it difficult to enforce promises against people who didn’t make them.  Done for non-economic reasons, trying to control wealth.  Courts set up obstacles to that, these are the 3 obstacles.
-	There are rights to the flow, shared interest in the water and through the water and through the land but the courts did not consider that enough.
Prior arguments for Intent/Touch and concern the same for benefit and burden.
Privity: 
For the benefit to run: requires vertical but not horizontal privity.  Here the benefit does not have to run so don’t have to inquire if vertical between Herd, Dosier, still there.  If we had to inquire the answer would be yes there is vertical privity because Wheeler got the same estate B had.  FSA in lot with others in common.  B conveyed a FSA, vertical privity.  Don’t
For the burden to run: needs vertical and horizontal privity.  Schad and DIMD, yes vertical because got the entire estate.  Has to have the title by the time the lawsuit begins.  The burden has to run because Schad needs to be obligated to pay.  There is intent/touch and concern for one test/vertical privity between DIMD and Schad.  Is there horizontal privity?  No horizontal privity because they are neighbors.  Jargon for the relationship between the promisor and promisee in relation to the land.  3 possible test:
1)	Tenurial Test: must be a tenurial relationship between promisor and promisee in order for horizontal privity to exist and for the burden to run against the person that didn’t make the promise.  P. 938, landlord-tenant.  Most common relationship in which waste applies.  Also most common tenurial relationship where covenants that run with the land are enforce. Satisfies horizontal privity.  Most common test.  Remainder person-life tenant is one. 
2)	Simultaneous shared interest in land, Morse v. Aldrich.  If the dam was between the two lots and had to go one to maintain it.  Hypo
3)	Grantor-Grantee relationship.  If the promisee and promisor are in a grantee-grantor relationship at the time of the promise then have horizontal privity.  Not so here because the promise occurred 6 days after deed.  Needs to be one instrument, but here the two instruments are disconnected.  Not utterly disconnected but they are separate.  Separate transaction, relationship between HDB and DIMD, they were mere neighbors trying to set up covenant relationships, fail because don’t have horizontal privity.
Rule: D is not liable for the work that was done because the agreement relied upon by P was not part of the initial covenant that was passed in the conveyance to D, but occurred separately so that D cannot be bound by it.  The court said, “it is impossible to merge the deed and agreement into one instrument, and construe them as if executed simultaneously.  Unless they constituted one instrument or transaction, it cannot be claimed that the covenants of the agreement run with the land so as to charge the grantee of the covenantor.”  There is no touch and concern nor privity.
3/16
Morse v. Aldrich
Chronology: Morse is P, Aldrich is D.  
-	1794 Original conveyance from Cook  Hull, conveyance of 13 acres of land.  Including privilege to Hull, easement full right of ingress/egress/regress– may be something more, to improve and use land for fish ponds, taking soil out - profit.  
-	Hull conveys the same thing to Morse.   Hull has the full liberty to dig out and carry away the whole or any part of the soil.
-	1809 Cook conveys to Morse, promises to draw off the fish pond – Cook owns the fish pond.
-	1833 Cook dies, land goes to Cook’s heirs, Aldrich inherits
-	Aldrich leases land to Lee, subject to covenant not to drain the pond, Aldrich said that was OK
-	1835, September, Morse asks Aldrich to draw off the fish pond so that he can take his mud, Aldrich says no way.
-	Morse sues Aldrich
Facts: Cook, D’s ancestor, conveyed to Hull in fee.  Hull conveyed the same premises to P.  Cook covenants with P, his heirs and assigns,
“that he will draw off his said pond when thereto requested by said Morse, in the months of August and September, not exceeding six working days in the whole, in each year, for the purpose of giving said Morse an opportunity of digging and carrying out mud, etc., as long as there may be mud in said pond, and no longer.” Cook does not covenant, in express terms, for his heirs and assigns.
P requested D draw off the pond, in order to get the mud out, D refused.
Issue: whether this covenant is such as is binding upon the heirs of the covenantor?  Whether the covenant is a real covenant, running with the land, which Ds inherit from their ancestor, the covenantor?
Morse trying to enforce the promise of 1809.  Cook  Morse.  Cook has the burden, to draw off the pond, Morse has the benefit, gets the mud.		Aldridge
						Lessee
In Morse v. Aldrich: Morse gets Benefit, Aldrich has the burden
Benefit does not have to run: Morse has the benefit in both cases.
Burden does have to run: Cook is dead, Aldridge not a party to the original covenant and Morse trying to enforce the burden against person that was not a party to the original transaction.
Concerned with against whom and by whom an obligation is enforceable.  The parties are separate, some will have to perform and others will not.  Think of this as a cause of action, P is an eligible P, and D is an eligible D.  The criteria for determining is easier for P than for D.  You have to prove that each party is an appropriate party. The party with the burden wants to get out of it.
Morse said it would run for his heirs and assigns and Cook did not.  Makes a difference as to whether it will run, influence intent/touch and concern.  More questionable because Morse specifically said heirs and assigns and Cook did not.  Clear that you wouldn’t have this kind of agreement unless the parties intended the agreement to run.
Intent: taken care of.  Assume Cook and Morse intended for this agreement to run.  If both used heirs and assigns language, strong evidence of intent to run, if its not there you have to look somewhere else.  The nature of the agreement, the ability to invest money, makes it possible to make a profit from long term investment is the kind that people don’t make unless its within a time they can get their investment back or that if it is conveyed it should be maintained.
Touch and Concern
Berger Test: Intent effectuation, since there is intent, someone would come to this agreement and would expect the agreement to run if they knew of the agreement.  The easements would survive.  If these are tied to an easement, if the easements survive you would think the things that make the easement valuable would also survive.
Could also say, Morse has built these fish ponds dependent on access to the pond bed, was not a promise he would have relied on if he didn’t think he could.  Restates the intent element.
Scientific Test: whether the covenant affects the legal relationship of Aldrich to the land.  He has the burden of allowing the use of his rights/land in a covenant Morse is trying to enforce.  It is effected, if you are required to drain off your fish pond it is a restriction on your absolute rights to use your land.
Privity: Requires horizontal and vertical privity.  Vertical satisfied because Aldrich receiving same estate as Cook, not divided.  Horizontal privity, have to look to 1794, when the conveyance was made, the initial privilege, easement created.  Relationship between Cook and Hull was grantor – grantee.  3 test for horiz privity, for 2 of the 3 grantor – grantee is not enough.  Does not equal horizontal privity.
Remember Wheeler v. Schad, transaction at time 1 grantor – grantor, transaction at time 2 was an agreement.  It may be that they were utterly disconnected, transaction 2 was a clarification and expansion of transaction 1, forgot to put in something.  Here have 15 years, disputes along the way, restate the agreement.  The connection between transaction 1 and 2 is close enough to call them identical for purposes of horizontal priv, but in Wheeler there is no horizontal privity and in Morse there is.  Why?
Tenurial relationship doesn’t exist.
Shared interest in land: Cook using for fish, Morse using for the mud but they are both using the land.
Difference is that C and M in 1809 were not merely neighbors, in W v. S they were merely neighbors, one had sold to the other a few days before but at the time of the contract they were merely neighbors.  In 1809, C and M share real property interest in the pond that lies between their two properties, enables the contract for that pond to have a real property nature as well as a contract nature and to therefore bind Aldrich.
Why didn’t Morse sue the lessee?  Lessee promises Aldrich to draw it off, speculation, Aldrich gives it to him, Lessee refuses to draw it off.  Morse sues.  Morse wants to get the pond drained off, but lessee says no, Aldrich owns the land but doesn’t have possessory rights so can’t go on and drain the land.  Aldrich’s lease with lessee should have contained the covenant.  Perhaps Aldrich waived provision, Morse is suing Aldrich to make him sue the lessee.  Morse can’t sue the lessee because the lessee promised but he didn’t promise to Morse.  Also lessee doesn’t have vertical privity, doesn’t have the same estate.  Doesn’t mean that he couldn’t sue lessee now.  How could he sue now?  Third party beneficiary contracts.
Rule: If the covenant in question runs with the land, it is clear that Ds are liable; and it is immaterial whether the heirs and assigns of the covenantor are named in the covenant, or not.  It is necessary that there should be privity of estate.  At the time these covenants were made, there was privity of estate between the parties in that part of the mill pond described in the grant to Hull.  This covenant therefore, is a real covenant, running with the land, and is binding on the heirs of the covenantor.
The burden did run, the original grant included the right for Cook to keep a fish 
Real covenants running with the land: granted or demised, such covenants are said to be inherent in the land, and will bind the heir or assignee though not named. 
Neponsit, Nicholeson 946-963
3/17
Special Exercises on Burdens/Benefits
A	B 
Agreement 1: A covenants not to use land for anything but residential
Agreement 2: A and B exchange such covenants.
1)	In agreement 1, who has the benefit/burden?
A has the burden and B has the benefit
A to C and C attempts to build a store, B v. C.  Which has to run?  The burden has to run because A had the burden and conveyed to C and C never agreed to do anything, but has to do it just because she bought that land.
A to C and B to D and D v. C, which has to run?  Both have to run for the same reasons.
2)	In agreement 2, who has the burden/benefit? Both have a burden and benefit
Privity Exercises:
1)	A and B are neighbors.  They exchange promises to use residentially.  A to C.  B begins to run a store.  C v. B.
a.	Who has the benefit/burden?  Both have b and b?  But in 
b.	Must the benefit run?  Yes because B didn’t promise anything to C.  Burden doesn’t have to run because B is still on the land, he made
c.	Do you need HP?  No
d.	Must the burden run?  No
Who wins?  C
NO privity because they are mere neighbors, no horizontal privity.
2)	Same as #1 except then B to D and C v. D?  Who wins and why?  D would win because the burden has to run with the benefit and no HP.  Traditionally wouldn’t use an easement for this, not recognized for restrictions on the use of land, changed statutorily, conservation easements, couldn’t use for this.  Safer using a covenant.  Easements are forever and covenants have built in time limits, and there are easy ways to destroy covenants, difficult to destroy easements.  Distinctions are breaking down.
3)	Same as #1 except A leases to C.  C v. B.  Who wins and why?  C can’t sue B because no vertical privity because they are separate estates.
4)	In the following conveyances, the grantee always promises to use the land residentially.  The Gr makes no Ps.
A  D C B
A to B/A to C/A to D, so that B, C, & D are now neighbors each having Ped A that she would not use the land commercially.  Who can enforce these P’s against whom?
a.	B v. A after first conveyance.  B can’t sue A, because A didn’t make any promises.
b.	C v. B.  C can enforce against B because C is getting A’s land that the promise was made to and if it runs with the land then C can enforce.  C can sue but B cannot at that point in the series of transactions.  Don’t need to get the entire parcel, just need the same estate.  A C B, A and C can sue B, A and B can sue C, no one can sue A.  Doesn’t matter how small the lots get.  
c.	B v. C.  No because when B got his land there was no promise by C to use it residentially, nor by A.
d.	D v. B or C.  D can sue both B and C.  Who can sue D?  Not A all of her land has been conveyed completely to other people.  If the benefit of the promises run with the land, people who get the land from A will have the benefit.  A is often a developer, enables them to sue anyone they want at any time even after they have given up their last parcel of land.  (Neponsit).   
	Just because a promise may be a covenant that was intended to run with the land does not mean it is not enforceable as a contract.  Wheeler v. Schad/Morse v. Aldridge.  If one of the DIMD in Wheeler who got the burden, just because they have conveyed land does not mean they are no longer liable for the promise if they made it.  DIMD made the promise to pay for the dam, no reason P can’t sue DIMD for the amount of repair for the dam.  They would have to show that the intent of the contract was to bind people to the deal after they had left the land.
If A is the developer, there is generally no problem enforcing the benefit, problem with the burden because people don’t want to pay.  Hard to collect from DIMD because they are bankrupt.
e.	B or C v. D
Neponsit Property Owner’s Association v. Emigrant Industrial Savings Bank
Promise trying to enforce: maintenance fees.  Similar to VR, substitution of land taxing, but no bargaining power problem here.
Diagram:
1917 – Neponsit Realty  Deyer
Neponsit Realty ---> Neponsit Property Owners Association (this was considered to have privity)
Deyer  X  Y  Bank
Emigrant Savings Bank purchases the property at a judicial sale.  Purports to convey the land subject to the covenant.
NPOA v. Emigrant Savings: trying to enforce the promise to pay the fee.
Burden: bank
Benefit: NPOA
Based on 1917 conveyance, enforcing this promise.  Which if either has to run?
Both benefit and burden have to run because neither were the original parties to the covenant.
Privity: For the burden to run need vertical privity between D and Bank and horizontal between NRC and Dyer.  Have horizontal privity and vertical privity.  
For the benefit to run, between NRC and NPOA and has to be vertical privity of the same type of estate.  The tricky part is if the benefit runs, if there is privity between NRC and NPOA.  Does the corporation have a classical interest in the land that is benefited by Dyer’s promise.  Classic common grantor NRC.  Does NPOA have a classical interest in benefiting land?  The whole purpose of the corporation is to maintain the benefited land, so in that sense they have an interest.  This is not an ownership interest. NRC owned the benefited land.  
If there were vacant lots, NPOA might still have an ownership interest in that lot.  No vertical privity problems, same type of estate even if its not the whole thing.  Might go against the associations bylaws for them to own property.  NPOA may be a non-profit organization, NRC was not, interested in keeping the land and selling it.  The homeowner’s interest in the development of the residential development is potentially in conflict with the interest of the developer.  The control of the NPOA becomes an important issue.  Here where the development is over, there are a couple of problems, NRC would have sold the vacant lot, NRC has probably been dissolved, but would still be interested in the outcome in this lawsuit.
NPOA does not own benefited land, don’t have vertical (?) privity.  The court overlooks the form and goes to the substance, may not be formal privity, but they have an interest.
Suppose Dyer bought the last lot NRC had and was analogous to D in the worksheet.  Dyer’s lot is benefited by all the other promises in the subdivision, but is Dyer’s lot still burdened?  If Dyer never made any promise, the deed would read the same as other deeds.  But not promising to anybody who still owns land but was promising to NRC, at the instant that promise was made, NRC didn’t own land, conveyed the last piece to D.  Can a promise run when there is no benefited land?  The situation in the worksheet is an anomalous situation, normally when common grantor conveyes to grantee 1, they make mutual promises contained in the deed.  Land burdened and benefited by the whole set of promises.  The worksheet shows the problem that arises when this is not done.  Here NRC and grantor would have made reciprocal promises.  Otherwise no one is going to buy it.
The court would say none of this was formally benefited but we have the NPOA and they working for the land.
If NPOA owns the common land, we have no problem.  But they probably gave the land to the city of Queens.
What if NPOA was not able to sue here.  All the lots were benefited, don’t have the worksheet problem.  So the court says we are going to uphold form.  Any reason we shouldn’t be concerned about that?  Why did NPOA sue here instead of individual homeowners?  None of these people were ever mere neighbors because they were all in grantee-grantor relationships when they made the promise.  
-	One problem is resources
-	If Deyer wins other owners don’t have to pay their dues.
-	Its in each person’s self interest to bind everyone.
-	What about the promise itself?  The promise was made to NPOA, so maybe only they can sue.  But if look a the language of the deed.  All the people that bought the lots vested their right to sue to NRC through NPOA.  NPOA only has the cause of action because each homeowner has conveyed the right.  Fairer, more likely to happen.  The deed seems to convey an exclusive right and power.  If NPOA doesn’t do it, why wouldn’t you want the homeowner to be able to sue?  They want to control how many times it goes to court, when one neighbor sues another neighbor for not maintaining the property as required in the covenants, can control by not intervening.
-	Encourages alternative forms of dispute resolution.
-	Matter of power.  The NPOA and the deeds and bylaws are all constructed by the developer, each lot owner gets one vote.  Subdivision divided into lots, until 1700 lots are sold the developer has no control of NPOA, when 1000 lots sold, NRC still has 500 votes.  They gather in the power sue for the same reason they choose not to sue, enforce, not enforce, amend etc.  Amendment process, architectural committee, all processes vested in homeowner’s association by laws written by the developer and put in every deed.
-	2 reasons want to do that.  Looks like setting up a democratic system of government.  Once the lots are all sold then it is one lot one vote.  Before that the developer is in control.  He doesn’t want the homeowner to be able to enforce the rules if he is not able to sell all the lots.  The developer wants to be able to say to NPOA that we are going to have a meeting to amend the rules.  Doesn’t want to have language that gives an individual right to enforce the rules.
Question of vertical privity was whether to go beyond the form of NPOA to the homeowners who do own the land and find vertical privity with NRC.  If didn’t do this would have been faced with the problem of no one being able to sue because of the exclusive right of NPOA.
Grantor/grantee applies for horizontal privity, plenty in the U.S.
Touch and Concern: historically an affirmative act could not touch and concern the land.  The court found here that it did touch and concern the land because it impacts the rights of the landowners to use the land.  Some courts have gone farther to look at how the money paid is used.  Some also look at the control of the developer, could be for short periods, or for 10 years.  When the developer takes that money, how does it spend it?  More property to start new developments.  In those circumstances the homeowners have been relieved of the duty to pay the fees because t does not touch and concern the land.  The money has to be used the benefit the land and not for collateral purposes.
Nicholson v. 300 Broadway Realty Corp.
Issue: bad faith
Diagram:
1929 – agreement between Embossing co  Nicholson agreed to furnish steam heat
1956 – Embossing  Spitzer		goes to Heirs (P)
	Spitzer  Thomson
	Thomson  300 Broadway Co. (D)
Occurred contemporaneously.  All of the obligations to mentioned except in conveyance to Broadway.  Spitzer and Thomson were acting as agents for Embossing.  Taking these actions to avoid having to comply with the covenant.  Affirmative covenant that doesn’t run with the land.
Touch and Concern: affirmative act doesn’t normally touch and concern the land.  It did here because of the legal relations test, there was a burden on Embossing to convey steam heat to Nicholson.    What if it was an agreement for Embossing to handle all of Nicholson’s legal affairs?  Here the burden would run as long as the buildings were in existence.  If for tea or legal services, the benefit wouldn’t touch or concern Nicholson’s land.  Here the benefit touches and concerns N’s property and the burden touches E’s property.  Affirmative obligation tied to the very building embossing has on his property.  Could raise argument that it touches and concerns the building but not the land.
Intent: probably intended for it to run.  N making a decision not to invest in heating facilities for himself so he would want it to run to whoever took over the building.
Privity: need both vertical and horizontal for the burden to run.  Vertical: have it here although fast and loose, fsa’s being conveyed.  Horizontal: the secret about this case is that the court doesn’t address horiz privity.  But N and E are neighbors at the time of the contract.  
Maybe simultaneous or shared interest, E builds and maintains pipes.  The shared interest has to exist at the time the agreement is made.  Maybe the two buildings were already linked and one party owned both.  If that is not the case then after 1929 E started running steam.
Also may shared easement of the railroad tracks, same problem with the pipes, not there at the time of the agreement.
Horizontal privity raises problems not addressed by the court.  Pipes problem in creating shared simultaneous interest by the promise.  The agreement dated Oct. 1929 may have been done after consent given, but the court didn’t address it.
Should always come to these question asking what kind of privity is necessary and where was the horizontal privity.  We can hypothesize about shared interest, but here the obvious desire by Spitzer to avoid the covenant.  The most important thing is getting the finder of fact to believe your version of events.
Assignment for after Spring Break: review this material, Tulk, Bear Creek, deeds for Columbia, 1001 – 1018
3/29
Restrictions on land, privately imposed
Easements have certain restrictions on them that led to the creation of other kinds of limitations on the use of land, obligations on land ownership, covenants.  
Covenants were not limited in the types you can have but there are formal restrictions on how you can create them.   
Equitable servitudes arose, Tulk v. Moxhay.  Bear Creek shows the continued importance of formalities.  Land law in California remains formalistic in its approach.  Good review to figure out what is going on in terms of land use restrictions.
Wheeler v. Schad
Start off with Wheeler v. Schad,  Morse v. Aldrich, there to teach the formalistic approach to covenants.  Three requirements, privity, touch and concern.  Wheeler, two agreements to do with a parcel of land, intended to run with the land. Building of the dam would not make sense unless all of the parties were obligated. But the court said in order to have an obligation run you need two kinds of privity – vertical, the same estate, horizontal, the relationship between the grantor and grantee, at the time of the promise to repair and reimburse.  In this case, they were merely neighbors so the court would  not find horizontal privity and so the burden does not run.  Note, the court said had that agreement been part of the initial transaction, the land for the second mill maintanance, the court would have found horizontal privity.  Finding it in those circumstances would have been the realization of horizontal privity, an agreement going along with the deed in the original transaction that’s enough in most jurisdictions to get horizontal privity.  Wheeler, also talked about tenurial relationship, between a landlord and tenant, have the most covenants that run with land, bind the lessee.  
Morse v. Aldrich
All that Morse v. Aldrich adds is the second kind of horizontal privity, simultaneous interest in the land.  There had been an original sale between Morse and Aldrich’s predecessor in interest, regarding a pond between the two properties.  Morse was given a right to go onto the pond to muck it out.  The original grantor, grantee agreement, established a simultaneous interest.  Another agreement later tried to restate the agreement, to eliminate disputes between the two. The later agreement was being enforced so there was no horizontal privity.  Only came from the fact that they were not merely neighbors, by that time they were neighbors who shared a simultaneous interest in land, so you got horizontal privity in land.
Neponsit
Leading case in the deformalization of covenant requirements.  The court decides on two levels to overlook defects in the formal transaction and look at substance and thereby bind subsequent grantees of burdened land.  The first one had to do with vertical privity and whether or not the benefit would run.  And whether or not the Realty association could enforce the obligations of the bank.  The benefit had to run because the realty company was not there, so the benefit had to run vertically to NPOA, but the NPOA did not have the same estate as the original promisee, they didn’t have any estate at all, so no privity.  The court was left with disallowing it or looking beyond the formal identity of NPOA and considering its collective identity, who makes up the NPOA, property owners have the same estate they got from the Realty company.  NPOA may not have the same estate but its membership does, that’s enough.
The second problem was touch and concern.  Paying homeowner’s dues is a major issue, a fee that will be used in the development in order to make the land itself usable so it clearly touches and concerns the land.  At the beginning of these developments, the developers retain control of the homeowner’s association, receives the dues from the grantees and uses the dues for purposes other than the development in question for the benefit of the developer, that would not touch and concern the land.
Tulk v. Moxhay
Facts: Lester Square surrounded by houses.  One of the parties, Tulk sells Melms with a covenant to maintain the iron railings and maintain a statue of George I.  Elms agrees to the stipulations, then through a series of conveyances it gets to Moxhay who declares intent to build on the square.  Tulk then sues Moxhay.
Issue: should Moxhay be allowed to build if he had notice of the covenant?
Rule: enforce the obligation as an equitable servitude.  Tulk to Elms, then Elms through conveyances to Moxhay. The burden has to run.  Elms has the burden, Tulk has the benefit.  Moxhay has the burden, Tulk has the benefit.  The burden has to run because Elms is not there.  No horizontal privity, Moxhay got the same estate.  No agreement between Tulk and Moxhay, Moxhay didn’t touch and concern.  Have grantor, grantee privity, it is enough  most times, but not in England so it fails as a covenant.  So can’t enforce it as a covenant.  But the court says that he knew of the servitude, bought the land for less as a result of the covenant.  It would be unjust to let him violate it.  
Problem with this servitude, restricts use of the land.  The maintenance of the land is important because it impacts the value of the land.
Things to remember: a covenant doesn’t work because horizontal privity is not present.  No question that this does touch and concern the land.  What did Tulk win, the right to keep the land the way he wanted it.  Nobody can change it.  The initial obligation was of negative value.  Moxhay knew of all of the initial obligations.  He was stopped negatively but not affirmatively.  Not bound by the covenant in an equitable servitude, only going to enforce against the person with the burden that which is equitable to enforce against.  
Institutional capacity reason: difficult to administer affirmative injunctions.
Only going to enforce what is fair, not bound by the covenant.  Importance of making the covenant run.  Equitable servitude will get you what the court feels is equitable at the time.  Here enforcing equitable servitude to not build, not that he  must maintain.  In this case only enforce part of the covenant. If Moxhay really wanted to build, hiring someone to paint the railings would be cheap.
Why didn’t Tulk just use an easement?  
-	Affirmative duties created by easements do not run with the land.  Couldn’t even attempt to get the affirmative duties.
-	Didn’t use easements for recreational stuff.  And didn’t use easements for negative reasons.  Limited set of negative easements available, e.g. light and air.  Here really an easement not to build, not available.
-	Conservation easements makes them available, but not available at that time.
Riley v. Bear Creek Planning Committee
Feb 1964	ASD  Riley
Mar 1964	Deed recorded
Nov 1964	Declaration filed
		Rileys complied with declaration, asked permission to do certain things on their land.
Jan 1972		Snow tunnel built
Facts: Riley’s sue Bear Creek Committee, slander on their title.  Told they cannot build on their land, the Riley’s said that’s a derogation on their title so brought an action to quiet title.  Want to remove all restrictions on their title.  Usually done because they want to sell the land. Will be able to sell it for more without the restrictions.
Dissent (p. 970): P will be free to subdivide the land, ignore building lines, obstruct views, and strip the land.  These are natural things people do with their land. These are not heinous acts, using the land in accord with property rights.  Can use the land this way unless they had agreed not to.  But the Riley’s had agreed, so why not enforce against them?
Rule: the restrictions were not in the language of their deed. 
Equitable servitude requires
-	notice
-	touch and concern
-	intent
-	don’t need privity.
Riley’s didn’t have notice in any deed.  Has to be a deed recorded at the time they got their deed and which they would have had record notice of.  notice that it did not matter that the declaration was filed nine months later, even if it had been filed beforehand wouldn’t have mattered since not in their deed.  Had to be in their deed or a deed in their chain of title which would have given them notice.  There was the offer of proof by D that the Riley’s had seen the declaration, they had agreed to it, they had complied with it.  But that is not enough.
Leaves a nagging questions: ASD  R.  Who is suing?  The Rileys are the people that made the promise, the burden doesn’t have to run, why not just sue the Rileys?  BCPC, homeowners assoc., this was a promise but it can’t be enforced because of the SOF, about land, had to be written, it wasn’t.  The Riley’s could have gotten out of this in a number of ways, they chose the property route.  The court comes out with the conclusion that this is contractual in nature, like a covenant, no problem with affirmative contracts, can be enforced according to the privately ordered rules within the covenant.  Only enforce it when there was meeting of the minds, intent on both parties part to create the contractual obligation.  If there wasn’t, don’t enforce it.
The alternative way, not about contracts, about a servitude on the land.  Like other servitudes won’t enforce against bona fide purchasers if they had no notice.  Not intended to be enforce, nothing to do with the land, not enforced.  Won’t get into inquiry about meeting of minds.  Just say servitude that burdens the land as long as there is notice.  The more appropriate way to view servitudes, look at as real property interest that burden the land similar but distinct from easements.  Easements are much more hardier devices, than covenants, equitable servitudes even as interpreted as contractual agreements.
Columbia Deeds (pp. 1001 – 1016)
Look at the language closely, makes sense out of the prior covenant cases and foreshadows all the cases that follow it.  (The stuff Upham really loves, how communities govern themselves, what processes they develop for that, and at what point outsiders intervene in that governance.)
This is all about control.  The people in Columbia have a choice, about contractual choice, not like Van Rensallear.
A lot of due process built into these deeds.
1)	trace the deal that makes them run – hint: the Hampton  Randolph deed in Holliday should help;
p. 1001, deed between CPRA, grantor and Aileen Ames, unmarried, resident of Howard County, grantee.  Appears to be one deed with a lot of conveyances.
HRD  CPRA  HRD  CPRA  Ames  HRD
Ames is a straw, like Betty Thomson of Nicholson v. 300 Broadway Corporation.  The purpose of this is to create horizontal privity, so that when HRD next sells it CPRA has the ability to enforce.  The agreement that eventually will be enforced by CPRA.
CPRA  Ames  HRD (becomes common grantor)  to all the people that buy into the town.
Trying to enforce agreement by Ames to abide by the declaration, true for all the conveyances.  All of Rouches land is burdened and benefited by the declaration.
In Holliday, there will be an anomaly in the case, think about why the conveyances were created at a certain point, think back to this conveyancing structure.
Henceforth, all of the land that HRD and subsequent corporations will have land that is burdened and benefited, in chain of title.  When X goes to look at deeds she will look at all of the conveyances which will have all of the declarations in it, in direct chain of title, no record notice problems anywhere.
2)	determine what standards will be used by the private government when deciding what a person can and cannot do on her property (foreshadowing Rhue and Davis);
The overriding concern is harmony, lack of disputes, living together, each person willing to forego the extreme enforcement of rights, others will forego the extreme enforcement of their rights.  Based on the Asian view that society is better when individuals think of the whole.  Culture of implicit agreements that don’t have to be spoken of.  
Upham perspective: that’s crap, built up by the rules.  We have the rules here, they are pretty explicit.  What is explicit are factors not particulars.  But if we had the complete set of deeds, we would find that the restrictions are specific.  
Architectural Committee; Architectural Control (p. 1012)
If you move to Columbia better be into group living, live with people similar to them with similar taste.  Why developments are so successful.  
3)	determine to what extent the CPRA can waive or amend the restrictions (foreshadowing Van Sweringen and Kenney).
When they buy new territory, after its set up what can the CPRA do to change restrictions?  Think of Trump Tower in NYC.  How much can they change the rules that create the harmony?  Allows Rouse family to buy additional property.  Have the ability to set up regulations for each outpost.  
Waldrop 
interesting case, shows us once again what a court will do to get what it considers to be the correct, just, necessary result.
1938	Shipman owned 120 acres  Town of Bravard, this is the promise
1939	Shipman  Tinsley
1940	Tinsley  W (Plaintiff), W says I’m not bound by the burden of not being able to sue created by the Shipman Bravard suit.
1950	W v. Town of B
Facts: Two easements, the first one is the right of way, no question this is an easement.  The second one was called a covenant, an agreement by Shipman his assigns not to object to the use of the 5 acres as a dump.  Time passes the character of the neighborhood changes.  Shipman sells to lots of other people.  What had been 120 acres, now the dump is surrounded by residential houses.  Waldrop sues, saying that they are not bound by the promise that Shipman made.
Tomorrow, Waldrop quickly, won’t talk about Wolff, will discuss Holliday vs. Spar, Buffalo academy.  For Wednesday, Burger, Kenney, Rhue, Davis, Loeb and Blakely not assigned, read Narsdact in the supplementary materials..
Dan Beyers, “Columbia Turns 25, and Inward,” The Washington Post, Sunday, June 21, 1992, page B1
3/30
Chapter 20 (pp. 1018-1059)
Waldrop v. Town of Brevard
1941	Shipman owned 120 acres  Town of Bravard, this is the promise
1942	Shipman  Tinsley
1943	Tinsley  W (Plaintiff), W says I’m not bound by the burden of not being able to sue created by the Shipman Bravard suit.
1950	W v. Town of B
Two addenda to the deed, one to permit use of the roads, the second for the heirs assigns not to complain of use of the land as a dump.
Issue: is Waldrop bound by this promise?  What are the theories that might bind him?
Covenant: burden is on Waldrop, has to run from Shipman down  Tinsley down  Waldrop.  What is the promise?  Waive rights to bring any action on the town.  The promise was from Shipman  Town of Brevard.  Shipman has the burden and the Town has the benefit.  In Waldrop v. Brevard, the burden has to run but the benefit doesn’t, breaks rule that P always has the benefit, here D is the benefit of this promise.  Benefit doesn’t have to run because the town was the original party.  The burden has to run because Waldrop wasn’t an original party.
Burden
Horizontal privity: grantor/grantee relationship, necessary for burden to run.  Maybe shared interest.
Vertical privity: Waldrop was given the land by a conveyance of the same estate, everyone has a fee simple, doesn’t matter the amount of acres, same as what Tinsley had.  
Intent: stated clearly in the deed language, no problem.
Touch and Concern: the promise effects the legal relationship because Shipman is bound not to bring any action against the town for this matter in the future.  Could bring an action if the town uses the dump negligently.  Not a total waiver of all rights.  Just can’t sue the town for odors, fumes, etc.    Really touches and concerns the land because Shipman is giving up a very important right, the right to protect your land against the otherwise unreasonable use of a neighbor’s land. 
Why is this not enforceable as a covenant?  
What are Waldrop’s defenses?  The Town is not its predecessor in title, no deed in P chain of title contains or refers to the covenants contained in the defendant’s deed, and  there has been such a change in the neighborhood it would be unconscionable and inequitable, and against public policy to enforce the covenants in D’s deed.
The court says the defense of changed conditions only applies to covenants and servitudes, doesn’t apply to easements.  This perfectly valid convenant fails because not in deed and change in the neighborhood.
Not in direct chain of title: if Waldrop goes back through all of the deeds in the chain.  When you get to Shipman looking for deeds out concerning his land, the deed to the Town was not concerning his piece of land.  Not until deed to Tinsley that Waldrop sees his land described.  Looking for promises having to do with his land.  In NY, Buffalo Academy says the same thing, covenant not to sell gasoline court says this was just a personal promise.  But even if it wasn’t a personal promise, it was out of the chain of title. The deed out from the common grantor was not about the Sacred Heart land, so don’t have to look at it.  Waldrop only had to look at Shipman’s deeds that was about his land.
Shipman’s failure to bind his assignees by placing the promise in their deeds  is a failure of his contractual obligation.  There is no record notice because not in deeds about Waldrop’s property.  May not be any factual notice either, called inquiry notice.  Buffalo Academy talks about appellate divisions earlier case about looking at notice in other deeds, or inquiries, see all buildings set back, courts will say you have inquiry notice to look and see if there are any restrictions that bind your land.  
If you are looking for different ways to enforce it, one way is the covenant.  Here it fails.
Equitable Servitude: no record notice because not in deed.  No inquiry notice/factual notice because the dump just got started.  
Easement: the court called this an easement, doesn’t have to be in direct chain of title since it’s a real property interest.  All you have to have is for the easement to be duly recorded.  The Town duly recorded their deed.  The Town of Bravard won, but what is the problem with the easement:
-	Waldrop could have found this deed, maybe he did but we don’t know
-	Not going to be a prescriptive easement.  If the dump kept going from 1938 – 1950, at some point do all the people around lose their right to sue, could say no because gave permission, but here gave permission in deed, can’t take back.
-	This is precisely the thing you can’ t have easements for.  Novel easements, normally can’t get an easement to not do something like sue, normally has to come in the form of a covenant.  The court is deciding do we want to change the way in which NC lawyers do their title searches by calling this a valid covenant?  Everytime that somebody buys from a common grantor, you have to look at every deed out from the common grantor to see if it is burden by another deed.  Restrict to say anything not in the direct line of title will not bind you. (p. 922-923)
Left with the Town of B not having a dump, it had done all it could do.  So the court says lets just call it an easement.  What are we going to distort?  Lets just call it an easement.  Otherwise it would make searching titles too expensive.  Minority rule.
Majority rule: yes you have to search the prior titles out, especially if the common grantor is a developer.
Common grantor is Rouse/HRD in Columbia Deeds, enormous record search.
But not a good outcome because you still have to look for easements, why not look for covenants?  Only defense is that easements are very limited in what kinds there can be, if not a right of way, negative easements for light and air, apparent from looking at it, don’t have to worry about it too much.  (Upham sarcastic)
Holliday v. Sphar
Who is Hampton?  He was a farmer with 45 acres to sell in Winchester.  Randolph is a developer, knows people are looking for land, offers to buy Hamptons land.  Sells for $1,000 per acre.  Holliday wants to build a gas station.  
Hampton  Randolph down  lots of others, eventually to Holliday.  The promises were between Hampton and Randolph.  Randolph asked to have the promises in the deed between he and Hampton so it would be forever be in the chain of title.
Rule: the deed doesn’t say it has to be residential, not enough that the parties intended it to be residential, has to be in the deed.
Buffalo Academy of the Sacred Heart v. Boehm Brothers, Inc.
Most dishonest case.
Intent: shall be covenants running with the land.
Facts: Buffalo convent owes money to the Boehm Brothers, $60,000. They offer land, make a deal that will cover the debt.  Depression, land probably not worth $60,000.  Boehm brothers want to get out of it, look to the promise that restricts the land.
Similar to Bear Creek slander on the title, same here.  Boehm says not a full fsa conveyance, not marketable title so we won’t take the land to settle the debt.  They won below but the Sister’s appealed, they won.
Rule: court says introductory comments don’t apply to the second clause since not restated.
3/31
Buffalo Academy Issues
1)	Whether there was a promise in any deed that purported to bind the common grantor’s successors?  Buffalo Academy is a grantee of the common grantor.  The court says there is no promise here to bind further people.  Through interpretation of deed language at bottom of 1028, top 1029.  Disingenuous, most real estate companies do not run gas stations, concerned about them selling land to someone that will open a gas station, so it should be a covenant that runs with the land.
Think about Columbia, a big opportunity for developers with land and affluent consumers, attractive market.  Common grantor goes to sell land to Kendall brothers, want them to pay a premium, will guarantee a monopoly, for that price.  There is some question about what range of discretion are you going to allow a homeowner’s association still dominated by a developer to make those kinds of deals.
2)	Even if the promise was intended to bind, is the promise in the chain of title?  The court said no, for the same reason that the court in Waldrop said no.  That is not a jurisdictional difference, should look for common deeds out in all jurisdictions.  Could also happen through equitable servitude, check earlier deeds out from a common grantor.
Chain of title issue: the case ends distinguishing an earlier case which required a broader title search.  The court said that had to do with set-back restrictions, can be seen readily so there is another overlay of notice.  Clearly relevant to the cases we will discuss today.
3)	Uniform building plan: the court decides that there is a third possible way to bind the Boehm brothers to this restriction.  If there was a uniform building plan in this development.  The court looks for that and doesn’t find it.  Series of reasons, haphazard conveyancing pattern – p. 1028, “many deeds contain no restrictions…clearly not following a fixed plan.”  May in fact be the case, but don’t think that a uniform building plan requires uniformity.  Different kinds of things going on in different areas, same as Columbia, but still following a plan. Diversity of uses, varieties of set backs don’t detract from a uniform building plan.
If you are not going to require that everything look exactly the same, what do you require to find a uniform building plan?  Important because the lack of a uniform building plan may lead a court to not enforce a plan that would otherwise be enforceable.
-	Universality: all of the lots are included in a plan in some way.  And coordinated with the other parts of the plan.
-	Reciprocity: some sharing of the benefits and burdens throughout the plan.  That does not mean that everybody has to have the benefit in the sense that anybody in the development can sue.  Who can sue and when is frequently an issue.  Concentrating the possibility to sue in the homeowner’s association, developer, does not mean that individuals are totally without recourse.  Looks very much like a gov’t..  Private citizens can’t enforce statutes unless there is a private cause of action, but they can act against agencies that don’t enforce.  Even if can’t sue directly, still benefited.
Marketable title is a term of art, doesn’t mean you can’t sell it.  No matter how encumbered, still have a market price.  When you buy land enter into a purchase and sale agreement.  The seller says what encumberances are on the title, mortgage, etc.  The buyer agrees to pay the price if the encumbrances are as described by the seller.  There is then a closing of the contract.  Have this time for the buyer to get a mortgage after negotiating the price, also a title search, physical inspection, etc.  If she finds a restriction on the use of the land, covenant, equitable servitude, makes it unmarketable.
Berger v. Van Sweringen Co.
Facts: injunction continue restriction on use of land.  Van Sweringen sold the property to two D’s, they are also a D.  Not sure if the correct way to think of this case is homeowners suing two individual D’s to prevent them from building commercially, because the court approaches it as suing Van Sweringen to prevent abuse of their power.  There was a resolution to change the intent of the restriction, it passed in 1961, 2 to 1 to waive restrictions on the land.  A new director was appointed, a new vote was taken and the restrictions were reinstated.  
The directors were mayors.  Big deal because the mayor’s became directors of the homeowner’s association.  Seems like a trust but don’t talk about the mayors having a fiduciary duty.
The lower court went with P.
Issue: the first question was who can enforce the covenant.  That depends on who has the benefit.  D said P did not have the benefit because their land wasn’t in the subdivision.  The only people that can sue are those that are in the subdivision.  This 80 acres has not been subdivided so no one can sue about it.  
Rule: The court looks at the encumberance, runs until 2026.  They will then ask the neighbors on either side of the highway if it can continue.  The court says those people have the benefit.  These people are right across the street, part of a coordinated development and there is a specific item about future continuation of the covenant and who will be questioned.
Issue2: whether the courts below erred in finding that the companies release of restrictions was null and void and violative of their discretion.  
Why did they think they could change them?  Paragraph 17 gave them the right to change it under certain conditions.  Most restrictive covenants have the right to waive, if not, would be like having a constitution that can never be amended.  The developer wants the ability to adjust to market conditions.  Similar right to waive raised in Kenney. 
Why shouldn’t paragraph 17 take care of it?  People bought with notice of it, why did the people suing win?  Why do the directors of VS want to waive the restriction on these 80 acres?  You could argue one of the bad things about the suburb is that you have to drive everywhere to take care of conveniences.  So having a mall is not necessarily a bad thing.  
Is there anything fishy about this?  Has to do with the fact the board of directors is made up of mayors whose coffers will be filled by this mall.  Tax enhancement of having a mall in the neighborhood.  Need to raise money for schools required by the residents. Shopping mall improves the tax base.  Problem that board of directors is mayors.  Public actors making decisions in a private context.
Kenney v. Morgan
Facts: purchasers of lots making complaints against the developer.  The Morgans are the residents, Kenneys are residents and developers.  The Kenneys filed covenants before building.  Morgans want the court to find that the covenants were illegal and unenforceable and that the bylaws of the Turnbull Corporation Association are illegal and unenforceable.
Issue: the bylaws say that each building site gets one vote, and can only exercise voting rights when your dues are paid and abiding by covenant.
Rule: court finds that article 3 of the bylaws are invalid.  The bylaws say that the voting rights shall be unequal.  The developer is saying that he gets one vote for every lot that he or she holds, same for homeowner.  Since there are 180 lots, 16 sold plus the Kenneys.  Leaves 160 – 16.  Not the problem.  
The problem is with how building site is defined, conflicts with the covenants.  The court says we will interpret that the bylaws have to be consistent with the covenant.  The Morgans say not consistent, because interpret it as saying that each homeowner gets a vote.  The court brings in contractual canons of interpretation against the drafter, looks at subsequent behavior which was inconsistent with their interpretation of the covenant.  The Kenney’s lose on the voting issue.  Upham says it’s a red herring.  Saying bylaws ok, but didn’t abide by them, didn’t pay dues for others.  Can vote on the lot they paid dues for, not the others.
Comparing the bylaws with covenant N.  Bylaws have to be consistent with the covenant because the covenant creates the association which abides by the covenants.    Can be assured that the bylaws will be consistent with the covenant.  Something else must have been going on here.  Kenney’s must have done something else.
Main issue of the case: The right to waive.  Here Covenant C.  An issue central to Van Swerigen.  Typical place where you find the issue. Classic homeowner’s assoc case.  Right to waive covenant C is challenged by the Morgans.  The Morgans would prefer not to have any waiving of any restriction.
Rule: these kinds of judicially approved waivers are not limited to minor changes.  What kind of criteria do you want to use when deciding if an amendment or a waiver is permissible?  
1)	Consistent with the original intent of the parties, goals of the development
2)	Impossible to complete the original intent.
3)	Fait d’accompli/cost of enforcement is greater than the benefit of enforcement.
4)	Impact on property owners; 
-	Developer: sympathize with the Kenney’s, have all of this property that they want to develop and not be trapped by waste.  They want to change it.  On the other hand, they are trying to make money by their promise to continue.
-	Immediate neighbors will be most against the waiver.
-	Person seeking the waiver; may be the owner
3 and 4 come together with a sense of proportionality in the building plan.  Don’t want to overly burden one group of people.  In Van Sweringen, the people surrounding the mall will have decreased property values while others will reap the benefit.
What else might you want to know about the waiver clause?
-	Might want the waiver clause to mention whether it includes minor/major changes, also probably want some form of notice to be mentioned?
-	What is the voting structure for the homeowner’s association that appoints the committee that does the waiver?
-	What is the process of getting a waiver?
-	Do they have to give reasons for the waiver?
-	Is there an opportunity to rebut it?
Rhue v. Cheyenne Homes, Inc.
Facts: Rhue’s lose because the court determines that the house is just too different from the other houses in the neighborhood.
Issue: mechanism for denial is the architectural control committee.  Two officers testify that if they had the opportunity to vote, they would have voted against it on the grounds that it was just too strange.  Didn’t have the opportunity to vote because the Rhue’s didn’t submit the plans.  They didn’t submit the plans because they knew it would be rejected.
One way to go here is that they knew of the procedures, didn’t abide by them, they lose.  Don’t have to get into what the ACC would have done.  Analogy to what is called the exhaustion requirement in administrative law.  If you are going to complain about the action of an administrative agency you have to first exhaust all of your remedies before you come to court.  Didn’t do that here, because it is simpler to just get along with it.  Talking about this in a private context.
How are we going to judge exercises of this kind of authority?  A reasonable standard.  Here look at:
-	how different from other houses
-	how much it would depreciate the value of surrounding houses
-	the intent of the covenant.  If the covenant says no Spanish Style homes, uniform architecture, they wouldn’t have tried to bring it in, it didn’t say any of these things.  The Rhue’s may also be a commercial entity.  They had real reason to think that this would be OK.  This house may be in the abstract more valuable.  
-	Is this going to lower property values?  Ground norm present in this case which explains it.
In the future if you want to bring in a Spanish Style house, you would get expert testimony that it would increase the value of the house.  Whose to say who these architectural control committee are, they could have particular biases in terms of styles.
How do you reconcile this with Davis and Rhue?  The assumption in Rhue is that there will be a substantial drop in property values.  In Davis the assumed drop is considerably smaller.  The Rhue’s knew that the land was restricted.  The Davis’s submitted their plans to the committee.
In both Davis and Rhue, the differences between easements and covenants.  Easements can be implied but covenants cannot be implied.  Easements can be gotten by prescriptions, can’t get covenants that way.  Somehow usage is creating a covenant here, some people are creating a covenant that will bind others.  Its not being done by contractual agreements.  Its all a question of notice.  These cases can be easily reconciled.  Both parties did everything they had to do, but neither disobeyed any explicit requirements.  In Rhue there were no explicit requirement so everything was up for grabs.  In Davis, there were explicit requirements and an architectural committee.  If you abide by the explicit specific standards the arch cont committee will only use its discretion in a limited way.  A question of notice, the person coming to the Cheyanne Homes subdivision would say there are no standards, up to the committee, the best way for me to know the standards is to go look at set backs, orientations, etc.  With Davis they read the plans, look at architectural style, as long as I do that I know that what I do will be OK.
Have a ground norm in covenants in the first case, don’t even have that.  The second arch comm has more discretion to entertain things other than money.
Davis v. Huey
Monday, Nahrstedt v. Lakeside Village Condominium Association, first two cases in zoning – Euclid, p. 1090, and Fasano on p. 1102, detailed syllabus available on Friday.
4/5
Nahrstedt v. Lakeside Village Condominium Association, Inc.
Latest view of enforcement of covenants.
Rule: If there is a covenant in place saying you can’t have pets, unless restriction is wholly arbitrary, violates public policy or outweighs any public benefit, it should stand.
Facts: restriction is found in the deed.  The court makes a distinction between restrictions in the deed and those put out by the homeowner’s association.  When you buy a property you see a deed and sign onto it.  Treating restrictions in the deed with more respect than they do later legislation by a homeowner’s association.  People coming in know what they are getting.  They may know about the process of the homeowner’s association but they might not know what comes out of it.  More of a political association.  Might be surprised, but Upham says this is not much of a reason not to enforce the homeowner’s associations rules against them.
She moved in with her three cats, makes her look bad.  Flaunting the rules from the very beginning.  Before she moved in she had a choice, but once she is already there, may be increased cost to fix.  
If she had moved in with her cats with no prohibition, they then passed a rule by voting process.  What would her options be?  Difficult to argue because she was part of the process.  We know that she didn’t read every word in the materials given to her at or before the closing.  She may not have made the correct inquiries of her attorney or real estate agent, poor job of explaining things to her.  Have to believe this if we believe that she didn’t know that there was a pet restriction.  If it was in the declaration the amendatory rules would also be in the declaration, if she lost in the voting process its hard to see how she could find it.
P could argue the burden and benefit as in the dissent.  But she argued that in this case.  
What are her practical options if she loses in court after the pass the new pet rule?  Her options are the same as they are now?
-	get rid of her cats and stay there.
-	Move out.
-	Stay there and keep paying the fine? Not really because it was coupled with a demand for removal of the cats.
-	Coase theorem: when two interest conflict the party who will benefit more from having resolution in its favor will buy off the other party.  Even if the resolution goes in the other party’s favor.  So whether or not there will be cats, can be violated because people will have the right to pay the fine.  That will not work here because thinking about purposiveness.  Have to think about Posner, says if the Coase theorem is true, then what the legislator should do is give the right to the person who wants it most.  Then the person who wanted it would end of with it, distribution of income and so on.
-	Coase theorem is about individual activity, market transactions, who assigns the rights?  Judges or the legislature.  That’s why the wheat farmer has to have the right assigned to it.  The assignment in N is done by a judge, but is normally done by the legislature.
Here we have a legislature that has already spoken, it chose to implement rules at a very high level.  The coase theorem is working at the market level.  The developer here operated at a legislature level, they legislated these rules.  Now we are at the enforcement stage.  Now we have a group that has legislated the norm and it is now appointed to the individual.  Coase theorem: N is old, quirky, she says she is willing to pay.
Here, the legislature’s fee assessment was not based on damages, it is set up as purely a penalty.  The cost is zero.  In the apartment they are odorless they don’t go out.  But their behavior is not the reason for damages.
Distinction here is that the rules are different than the coase theorem, which is about compensation, but we are dealing with order.  Not a tort rule, more akin to a criminal statute which is in place to affect behavior.
If we could hypothesize that all cats do not cause harm.  Private organizations can choose to institute laws that are not based on fact.  Can public institutions do this?  What does arbitrary mean?  If the benefit is not horribly disproportionate to the burden.  
-	rule that has no basis in fact, taste against cats.  Does not make it non-arbitrary.
-	There is an arbitrary distinction between no pets, but still allow birds and fish.  But not arbitrary if they are talking about a matter of taste.
-	Argument of as a developer, part of my job is to appeal to customer’s taste, or they won’t buy it and I won’t make money.  Niche taste out there against cats.  More like the Spanish Style house (Rhue?).
Can you have a rule that says we like only inauthentic architecture, spanish style houses and mock tudor houses, and nothing else is allowed?  
Private residential governments: voluntarily entered into.  Includes rules against satellite dishes, trucks.  Satellite dish is like the blue lamp, cats.  If it is invisible how can it cause any harm to the homeowner’s association.  Therefore solely a matter of taste.  
Distinction between the behavior and the effects of the behavior.  Uniformity and enforcement.  Concerned about the effect on others.  But we can do that most efficiently and effectively by a blanket rule which not require investigation and enforcement on a case by case basis.  Simpler solution if you just don’t like the behavior or people who engage in that behavior.  
Additional readings, Loeb 1059 and notes on 1063.  Set forth the doctrine in a more systematic way.
What are the possible ways that Nars can talk about not enforcing.
p. 1061, top.  Restrictive covenant…without substantial benefit of the covenant.  The P’s right to enforce are absolute regardless of the fact that they are not damaged by the breach…
Rules about enforcement of covenants. The first one is absolute enforcement, the remainder are exceptions.
1)	Covenants are always enforceable, indefinitely.  In Nars, the people enforcing the covenant are not in anyway harmed by Nars cats.  The harm is simply the fact that this exist and the desire by D that it does not exist.  That brings in taste.  Doesn’t matter if there is a benefit, as long as not against public policy or overreaching in some other way.
2)	You can enforce it as long as there is a benefit to the covenantee.  The second rule, disagrees with the dissent view that no damage was shown.  If there is still a benefit to the enforcement of the rule you enforce it.  Not sure what he would say about Nars.  Means the benefit has to be objective, has to be clear, might be a small benefit.  Does the benefit always have to come down to money, could it be something else.
3)	Enforceable only when the benefit is not disproportionately smaller than the harm.  Cohen in Loeb, to not allow this person to put the third home in.  Two rules, residential for 35 years, and only 2 homes per lot forever.  After 25 years someone wants to put the third home on.  The covenantee, enforcing the covenant, difficult to show th the benefit, because anyone could go out and turn the lot into a Kmart, no longer limited to residences, but the damage to the person that wants to put the third home on is significant.  In Nars, the damage to P is substantial.  Balancing test, when the harm to Nars is 51 and the burden to the homeowners is 49, you don’t enforce.  It has to be proportional.  Must be insubstantial benefit.
4)	The enforcement be uniform and regular and consistent, if it is not, if there are other people that have it , then it gets difficult.  Equitable estoppel, if the person enforcing the covenant has acted in violation of the covenant has not enforced other violations then there is equitable estoppel.  In that is that they are enforcing against N, because she spoke up at the association meeting, retailiation.  Hecht note case, 1062.  Equitable estoppel, clean hands.  Can’t go in when you have done something wrong yourself, not enforced in other instances.  If you haven’t enforced dues when people didn’t have money to pay, but now enforce against restrictions, not estopped.  Has to be the same rule.  Turns homeowner’s assoc into a police force.
5)	Neighborhood change, want to be able to change the restriction.  Downs case, notes 1062 – 1063.  This court says, OK there has been change, because of it, the benefit of enforcing the covenant against him not higher than the burden on him.  This is articulated as neighborhood change.  Inequitable to stand in the way of further change.  The problem with it is that you are precipitating further change.  The reason you have restrictions is the prevent the inevitable change from getting into your parcel.
How does this relate to easements?  Different ways to knock down covenants and equitable servitudes.  Most don’t apply to easements.  If its an easement it exist.  
Estoppel, if there was another right of way, or if lot 2 refused to let Mary Cushman go over, and then lot 2 wants to use lot 1, doesn’t have anything to do with whether the easement exist over lot 1.
Change, so what, in Waldrop case.
5 relates to 2 and 3.
4/6
IV.	Public Land Use Controls (2 weeks)
A.	Zoning Doctrine and Process
Chapter 21 (pp. 1089-1125, 1135-1151, and 1167-1233)
Village of Euclid v. Ambler Realty Co.
We begin with the structure and process of zoning, although Euclid is properly a “takings” case and you should understand the court’s reasoning that allowed the city to reduce so drastically the permissible uses of real property.  (Please also note the appellee’s brief that begins the opinion and the excerpt from the District Court Opinion reproduced in note 2 on page 1097-98.  We will want to reconsider these arguments after we have completed zoning.  Were they accurate, did the lawyer and district court make correct assumptions about what zoning was about?)  
Euclid approved zoning over the district court which had overruled it.  Implicates no constitutional principle or civil rights statute, but has to do with economic station in life.  It is OK, that is the whole purpose of zoning.
Think about Euclid and who is setting the rules, the City of Euclid.  What is the city of Euclid, how can they set these rules about zoning?  Where does that power come from?  What is the standard to decide if the rules set up by the city will past constitutional muster?  Compelling state interest, clear and convincing.  What would the Ambler realty company have to show about these rules to get them knocked down?  What is the standard of judicial review?  What are the limits?  Euclid is the case that made zoning possible.  Why did they think it was OK?  What are the limits within this enabling opinion?
TA opportunity for property and research assistant – resume and writing sample due by next Tuesday.
Compare what is done in private and public land use control:
Three themes in public land use:
1)	When is the government using the police power to do something that should be done by imminent domain?
In Euclid, Ambler arguing that the zoning so diminished its property that the city of Euclid would have to pay for it.  The S.Ct. said that wasn’t necessary.  Instead, the zoning regulation in Euclid was a valid regulation of the police power.  Police power is the power of government to regulate activity.  Environmental regulation is the exercise of police power.  Question, has the police power gone so far that it is a back door exercise of the power of imminent domain.  The power of state a federal government to take land for public use.
Some government entity with the power of imminent domain can take the property from land owners for public use.  Has to pay the land owner just compensation, normally this is done by imminent domain.
Hypo 1: met area needs parking in downtown area.  Downtown deteriorating due to lack of parking.  The city parents decide they are going to put in new parking.
Options available to increase parking?
-	Buy the land themselves and put up the lots.  Take it by imminent domain, force a sale, may be litigation over whether the value is adequate.
-	Easements or covenants.  The city would have to make agreement with the owners of whose land they want to use.  Make deals with owners in the area that they reserve parts of their property to be used as parking areas.  Pay the landowners for the use.  
-	Issue with first two options.  These two options are expensive, could increase taxes. Perhaps could charge for parking.  If there was money to be made, someone else would have already done it.  Possible that there isn’t a lot large enough to operate as a parking lot.  The city may have to accumulate the land, may not be possible for an entrepreneur.
-	Third option, for government to come in, accumulate the lots and sell them to someone else to run a parking garage.
Every city wants the best services, but nobody wants to pay increased taxes to receive the services.  Every government is trying to get something for nothing.  How could they get something for nothing?
-	Could pass a law that says that every business has to have a certain amount of parking.  Don’t have to tear down, but every building permit would have to show that you have addressed the parking crisis.  Either dedicate land for parking or pay a fee to allow the city to purchase land for the parking.
-	Business people will say, we desperately need parking, it has deteriorated so much that we can’t pay for it.  If you make us pay for it it will exacerbate the problem
Hypo 2: suburb on the outskirts of a met area, the people living there see the character of the town changing.  It has gone from a farming rural area to a bedroom community with farms and open space.  They see it is going to become a suburb of NYC.  They would like to be sure that the character of their town will not change.  They are particularly concerned with open space.
Exurban: a town that previously was a rural center, still has farmland along with some development.  A new highway opening up, the town is facing the possibility that it will be a commuter town.
How can they keep the low density, open spaces?  Open space stands for exclusion because the more open space you have you have less humans.  Why?  Quality of life, houses more expensive, each lot and each home becomes more valuable.  Zoning makes the land less valuable.  Element of quality of life, low tax rate.  Fire department, schools, etc.  
-	The town could come in and say we want it to remain farmland.  We will purchase conservation easements by imminent domain.  The farmers see a chance to become multimillionaires may not want to give a conservation easement.  They may want to hold onto the land until they can cash it in.  Force them, but the problem is that you have to pay for it.  Difference between the market price for development and the market price as a farm.  That could be huge.  A lot of tax dollars.  
-	Zoning, limit number of units of houses.  Advantage is that you don’t have to pay.
2)	Zoning is planning as is the private land use restrictions we say yesterday.  Zoning is public planning.  Slim chance that the market would work to do any of these things.
-	in case of town above, the market would come into a wealthy neighborhood and create middle class housing.
-	People at the local level want control over their lives.  Want homogeneity of a certain type.  This is accomplished through zoning and planning.
-	Whenever you plan you impinge on issues of freedom.  Ensuring uniformity, homogeneity will create injustices at the application level.  So onerous that you don’t want to enforce it.
-	Harbiston case, pre-existing non-conforming use.  Can continue prior use indefinitely or for period of years, until the lease is up.  Depends on what the prior use was, new use of neighborhood, can the two uses exist together.  Assumption made that the pre-existing use would disappear, the opposite happened becaues created monopoly.
-	Can give stability, high quality of life, legitimate goal, the exercise of democracy at its most important leve.  But whenever you try to control people’s lives there will be instances of injustice.  Need flexibility in zoning regime. When you pass zoning have a map and text that spells out in each area what is allowed.  Needham zoning bylaw gives the list of all of the ordinances in South Street.  Within the ordinances have these three possibilities.  Get it through a series of devises there to prevent the zoning process from becoming rigid and oppressive.
-	Variances: particularistic, the general rule by the planning authority.  Go to board of adjustment and ask for the variance to excuse the application of the rule due to undue particularized hardship.  Must be allowed because if not, my land so devalued that it constitutes a taking.
-	Special permits: built into the central planning scheme, but not something that people can do as of right.  In most areas there are uses that are permitted as of right, then there are things that are banned, then there are things that may be OK, but have to get special exception.  Go to an agency, they are authorized under the statute to allow this use in this area when it is compatible with the statute.  Must allow or I won’t be able to use my land for its intended purpose.
-	Rezoning/amendment: in Fasano.  Under the current map I am not allowed to build in this area.  You have legislated a central rule, I want you to legislate again and restate the zoning map.
-	P.U.D., Village of New Hope p. 1135, planned unit development.  Looks a lot like Fasano.  An alternative to Euclidian zoning, which says these uses here and those there and the state says those are the only uses you can have.  Uses by area, can be inclusive of less dense areas.  That kind of zoning considered to be too rigid.  All residential areas without variety, without adequate services.  Since one major goal of land use planning is density regulation, why not just give developers land and tell them the permissible density and let them figure it out any way they want.  Allow various uses, commercial activity.  Up to the developer to arrange that density as he or she sees fit.  
If you compare Village II at New Hope and compare to Fasano.  Fasano says rezoning is invalid.  Village II at New Hope says the rezoning is OK.  Both involve the implanting of a new zone in an already designated area.  Village II went the other way because of the acceptance by the Pennsylvania Court of the dissent in McDonald.  Rezoning could be allowed due to new ideas.
When a developer gets a PUD, density zoning, the developer has the initial cut on how to arrange the uses but then she will have to come back to present that to the planning commission.  Not just carte blanche.
3)	Judicial review, institutional capability of the courts.  When do they come in?  When they come in what standard of review do they use to determine if the zoning is unconstitutional or violative of some statute.  The level of judicial review is what is at stake in Fasano and McDonald and in the California note case.  Fasano is a very important case, it says that courts should look very carefully at which of these devices is being used and how, General legislative way or an adjudicatory way?
For tomorrow, read through McDonald.
4/7
Variances, Special Permits and Rezoning are the major issues in zoning law.
Euclid
Analogy to nuisance.  One of the things to think about when we get to Lucas, the latest important case on takings from the Supreme Court.  Euclid sets the bounds by establishing this analogy to nuisance.  Clear that you can zone for things that are far from common law nuisance: lots, types of architecture.  The idea that zoning is legal because you are preventing one landowner from damaging other people is at the heart of the legal rational, as opposed to being legal because it creates something beneficial.
How courts address judicial review of zoning plans.  The court in Euclid looking at the zoning in the abstract.  The standard of judicial review is very deferential.  The court will be extremely reluctant to say that any of it is illegal.  In constitutional issue of taking, the court will approach it cautiously and will only overturn it if:
-	lacks rational basis
-	considered as taking a person’s property
When Ambler comes to the court about a particular lot because it has a particular plan we will then see what the dimunition of value is, where they can still use it.  If they or any other litigant can show that for any specific lot they can’t make a legitimate return, we will then see if there is any problem.  The opponents of zoning lost those battles.  See Nectow, p. 1098.
The Supreme Court now willing to be less deferential, looking more closely at land use regulations that diminish property values.  The brief and district court document here foreshadow later issues.  The district court judge saw what was going to happen with zoning.  Difference between legislation in the abstract and the ordinance as applied to a specific lot.
p. 1096, standard to overturn
-	clearly arbitrary and unreasonable.  Arbitrary if not related to the underlying constitution, documents, bylaws.  Could still be reasonable, that is why they have added unreasonable.
-	no substantial relation to the public health, safety, morals or general welfare.  
Related to the police power of the state.  The ability to make laws related to all of these things.  Where does the city of Euclid get the power to use the police power?  Gets it because they have a democracy, inherent power as a democratic unit to pass legislation that restricts people’s freedom of action.  Comes from the state government, constitution.  Does not come from the city of Euclid.  The city of Euclid has no inherent police power.  The state of Ohio does have police power because it is a sovereign entity.  As sovereign as the federal government.  Cities are not sovereign, so the power to restrict people’s freedom and diminish the value of their property comes from the state, not the local government.
Sounds like Narshdect, the court was trying to look generally, P wanted to look at the specific harm to her.
For the structure of zoning, we will pay special attention to Fasano and McDonald.  Fasano is particularly important because it lays out the different levels of analysis in the zoning process, which you will be dealing with in detail in the South Street Exercise.
Fasano v. Board of County Commissioners
Facts: P was the county commissioners, neighboring landowners, not the landowners of the rezoned land.  What right do they have to bring this action?  Have right to ask that the zoning laws be enforced.  Saying this is an appropriate change to the zoning laws.  If the trailer park were in and the zoning had not been changed, then the county had some power over citizens to try to force zoning enforcement.  But here not talking about a lack of administrative enforcement.
In Needham (South Street), talking about an administrative officer not enforcing the law for the benefit of those who are concerned.  In the nature of mandamus, a person can go to court to order a person to do their duty.  More difficult to order someone to do their duty when the duty is not to issue something for which there are clear guidelines.  Have discretion to enforce.  But there are specific rules to enforce commission to enforce existing law.
Here challenging a change in the law, not asking for enforcement.  The defendant is also different, here the county commissioners.  Want to be able to get an injunction against the builders.  Armand Levine in South Street is equivalent to someone who is going to enforce the law.  Doesn’t mean that he has to be the one to enforce, he can have someone on his staff do it.  The legislature is the equivalent in the enforcement are in city government.  In Needham its the town meeting that makes the laws.
Here it’s the county commissioners who change the law, also the people that made the law originally.  The power to amend is limited to the same institution that has the power to legislate.  Here we have the creation of a rule.
Standing
What gives P the power to challenge the creation of this rule?  They have to be affected to have standing.  
-	Here they live nearby and fear that their property values will plummet.  Good P in this case.  If we don’t have these landowners, who do we have.  Neighbors can bring action even when their land is unaffected.  Have to be aggrieved in some concrete way.
-	State of Oregon, could sue as an abuse of discretion.  They granted the police power for certain reasons and this change is an abuse of that power.  P. 1195, goes back to source of sovereignty in Euclid.  Weak lead to rely on to make sure you have legal land use planning.
-	Relaxed doctrine of standing in U.S., give it to anyone with attenuated greivances.  If you don’t have standing granted broadly then you can have an arrangement between the permit granting authority and developers.  The problem is that you have a lot of suits that claim to be for the public interest brought for private reasons.
The regulatory state, Upham tries to emphasize in first year courses.  Use land use planning to introduce the idea of the administrative state.
-	standing
-	difference between legislation and administration, Euclid, South Street
-	Standard of review, different for legislative and administrative law.
P were either abutters or abutted abutters.  Easements would not come up because zoning would not trump covenants.  Covenants are usually prohibitive not affirmative.  Zoning is affirmative.
Chronology:
1959	Comprehensive Plan for development, the land was then residential
1963	New P-R (UD) zone created, all done by the commission/legislative, deserve the highest deference from the court.  Democratically elected legislators setting rules for land use.
1970	AGS land rezoned P-R
The court did not give deference as if legislative, said should be treated differently as if it were a judicial decision.  The court determines that because it is judicial it can then decide the standards for rezoning, who should have standing and the effect of the decision.  Viewing as an administrative/judicial/adjudicative means that treat 1970 decision this way, the consequence is that they will look more closely at it.
Why does the court consider this to be administrative, when would have considered 1959 and 1963 acts to be legislative and given great deference?
-	1970 action seen more like a variance.  Action on AGS’ application.
-	The board is entitled to come up with a general plan for the whole parcel, the 1970 action is a specific clear interest.
-	1963 act was a specific amendment to the plan, but still seen as legislative, treated with deference.  The 1970 amendment wouldn’t be treated with deference.  The commission can set up whatever guidelines it wants, but when it begins to apply to specific situations becomes administrative.
-	1959 plan set the uses for all the places.  Was not abstract and didn’t bind, it had immediate effect.
-	1963 zone creation also had vision, now will include new kinds of uses but totally abstract, not placed anywere.
-	1970 decision is like a permit application, this case is here for two reasons:
1)	fundamental issue in zoning is scope of review, legislative deference or administrative scrutiny.
2)	This is the way zoning happens, every town has a land use plan that has to be developed by a paid professional.  You have comprehensive plans developed infrequently.  
-	As long as you have a plan the only people who will complain are those who want to use land in a way not allowed by the plan.  These tend to be developers who want to make money.  
-	Why do they think they can make money?  Go to legislative director because can’t go to the building inspector. AGS can make money in current situation but not as much.  
-	Substantial public need for less expensive trailer homes.  People who are not there now, how can they articulate their political desires.  So the developers articulate it for them.  These people represent the public.  The state can use police powers to help them.
The court decides not to use the arbitrary and capricious standard.  Not a deferential standard.
1)	Public need for the change.
2)	The need will be best served by changing the classification of the particular piece of property in question as compared with other available property.
Every legislative body that does this has a Planning Commission, underneath them they have city planners.  Another dimension of administrative law is expertness.  Courts will defer to experts.  Here the planning department staff supported the change but did so in a vague statement.  Upham says so what.  Maybe want to have a fuller statement to avoid corruption.  Could look at the record.  In the record here what there was to show the deliberation of the experts was a vague statement.  The staff report seemed to be in favor was too conclusory and superficial.
Would want to look at recommendations in the record which are not conclusory or superficial, want substantial evidence.  Magic word for judicial review of administrative actions need to be able to show by substantial evidence in the record that it is in compliance with the comprehensive plan.
Requiring that the need be best served…would make it unlikely that you would have rezoning.  Followed in NJ in Mt. Laurel case.  If it happens to be the best parcel for the public need it is unlikely to be the parcel owned by a developer.  If you have a zoning entity that doesn’t want to zone for trailer parks, they are not going to dole out land.  The developer will come and buy land and present it to the legislative body for rezoning.  The board will always be able to point to another parcel that would be better.
Don’t need to take the second criteria seriously, if we did, there would never be rezoning.
MacDonald v. Board of County Commissioners
Read again and think through in relation to Fasano.  Should be able to get a fuller reading.  Will discuss further on Tuesday.
Majority: sets up a standard that is called the mistake or change standard.  Have to show a mistake in the comprehensive plan or a change in the environment.  The changes shown were within the planned area.  The plan anticipated explosive growth.  So change has to be change not anticipated in the comprehensive plan.  So that the way the plan is dealing with the change is the way the plan intended to do it.  Mistake, same.
Dissent: this is a difficult standard.  It is worth repeating that it is a standard that has been applied to the decision of a democratically selected body.  Not telling an administrator, telling a lawmaker that you have made the wrong law.
p.1107, California Court says we are going to give legislative deference everytime there is legislation, even if in the nature of spot zoning.  Allows for collusion, short sightedness, corruption.  A tough standard leads to entrenched interest, rigidity and not allowing for accommodation of public need.
Harbison v. City of Buffalo
Dissent: if you agree that there is no nuisance, no injury, tehn what we are talking about is the restriction of a person’s rights.  Here the right is substantial,the right to pursue a 23 year old business.  What is the reason for that, not because of nuisance or harm, just a desire for symmetry.  Get back to Nahrstedt, enforcing something where there is no harm showed by the non enforcement and there is severe harm caused to the individual by the enforcement.
For Monday: south street exercise, on Tuesday go back to cases; Belle Terre, Moore, and Schad and Eastlake.  We will do those on Tuesday and Wednesday as well as wrapping up South Street on Wednesday.  (4 hours)
In the next part of the zoning assignment (1181-1233), we will go through the Belle Terre, Moore, and Schad cases in a straightforward way.  For exclusionary zoning, we will do Bilbar, and National Land quickly and focus on the Mt. Laurel cases.
B.	The South Street Exercise
(Materials to be distributed)
For the South Street exercise, you will be assigned to a three person group to represent Ms. Kathleen Wright, CEO of the Massachusetts Visiting Nurses Association.  The case study will unfold in a series of handouts, the first of which you have already received.  The first step in the exercise will be the preparation by your group of a strategy memo.
Strategy Memo - due in class on Monday, April 12
Your group will play the role of an intern in a small law office in Boston.  Your boss, Ken Margolin, has asked you to research and prepare a memo for an initial meeting with Wright on the matter outlined in the Statement of Facts.  
1)	The memo should outline the issues and possible courses of action for the VNA.
2)	There is no set length or format, but none of the successful memos in the past has been more than seven pages.  
3)	The purpose of the memo is to prepare Margolin to discuss with Wright her options.
4)	It is not a legal brief and it should not be limited to legal options.  The VNA is one of Margolin’s oldest and best clients and they have a comfortable and close working relationship that has involved Margolin in areas and aspects of their business that go well beyond the strictly legal.
5)	When you hand in the memo, please use your group number, rather than your individual names, so the caption would read “to: Ken Margolin, From: Group Twenty”.
4/12
South Street Review
1)	What action if any should the VNA take to ensure continued access via the existing driveway?
Pursue a prescriptive easement – was there privity between all of the parties to the land?  The sale from the bank to us establishes privity, we should argue this.  What is the statutory period?
We don’t know the perspective of the next door neighbor, we just know that he is a landowner of the abutting property.  Might assume that the protesting neighbors might try to elicit his support to make life more difficult for VNA.
Might not take any action at this time because want to use the questionability of use of the current driveway to support the creation of the second driveway.
VNA was upset when they got the survey and found they didn’t own the driveway.  Might want to talk to VNA about the possibility of the prescriptive easement.  Want to think about how much you tell her, she doesn’t want to know anything.  You should make some decisions and stream the info that she needs.  It may be their driveway even though the surveyor found it was not on their property.  May not want to say anything to the neigbhor.
We may or may not get a prescriptive easement, need to know dates, privity, etc.  What is the first thing you would do in this situation.
-	Go to the neighbor, find out who he is, not likely to have an attorney.  You will get an address for the owner of the vacant lot.  He may be disinterested.
-	The easiest thing to do is to spend money.  The VNA is not interested in paying for the lot.  What could we offer for the lot, we don’t want to give money.  
-	Might lease it, 
-	Offer something that might be attractive to the lot owner.  Memorialize his name on the driveway.  Then the owner could get a tax break.  Gets the state to subsidize the driveway.  He could be mentioned in their brochure.
-	Creates a problem we don’t have by telling him about the right to the property and our need for it.  He could be just as upset as other neighbors about the decrease in property values.  It doesn’t matter whether the harm is real or visible.  Wouldn’t matter if you could show that the property values around hospice homes don’t go down but appreciate.
-	What does he do if he is alerted?  He could keep us from using it, put up a fence, tell us we can’t use it and cease any case we had for a prescriptive easement.  
-	Want to know what the lot owner thinks his property line is.  Right now he doesn’t think the driveway is his land.
-	Information management problem here, we have more info than anyone else which is good.  But its info we don’t necessarily want other people to have. The other neighbors don’t necessarily know about this problem.  How does that impact the public hearing process?  If they can’t use the current driveway, or knock down the wall to create the second driveway, the land becomes absolutely worthless.
-	Even if the lot owner agrees to let VNA use the driveway, hurts us when we go to the planning board for the second driveway.  We can no longer argue necessity.  Our property is constitutionally taken from us.
-	Want to find records of previous approval processis.  To find out what the legal standard was.
Have a problem if go before the planning board and haven’t exhausted all of your options.  They are likely to ask if you have asked the neighbor for use of the first driveway, if you haven’t looks like you haven’t done all that you can to meet your needs.
We do know that it is important to stay in harmony with the current plan.  Want to show how your proposed use is in harmony with the current plan.  Want to make yourself good community members or risk alienating people whose approval we require.
Assume we are going to take the friendly, open community approach. We are going to appear before the planning board to get written permission.  There will still be people that will oppose us.  They will be people with clout and standing to appear before the hearing.  May have two groups of neighbors, those that  support us and those that will be dead set against it.  The Planning Board will be caught in between want to give them as much info to find in our favor as we can.
2)	How should VNA proceed regarding creation of a second driveway through the stone wall?
Question of interaction between this driveway and the second driveway.  To justify breaking through the wall on the scenic roadway, VNA has to say this is a reasonable thing to do.  What is the standard?  15C allows various interpretations. But it is discretionary, with prior written consent.  Doesn’t give any criteria for making that determination.  But procedures necessary seem similar to a variance.  So look to what you would need for a variance to determine what you would need for 15C.
Some analogized to what you would need for a Special Permit: permission to do something provision for which was already in that use district, to determine what you would need as a standard to break through the wall.
Difference between variance and special permit approaches?  Special Permit approach more flexible and discretionary for the decision makers.  More discretion to grant or deny a special permit than they do a variance.  We want them to have more discretion so we can throw in more non-legal arguments.  We are ready to go before the planning board to talk about the need and nature of hospices, and highlight how it will not be inconsistent with the neighborhood.  Gives more flexibility to make the argument to the planning board, broader range with which to deny or grant permission.  With a variance there is a standard that must be reached, if it is not reached, don’t get the variance.
Special Permit requires the use to fit in well with the neighborhood, loose discretionary criterion.  Seems to be easier to get a special permit type permission, than variance.  Variance you have to show substantial hardship, don’t have to do that for Special Permit.
Question of statutory construction, since there is no standard mentioned in 15C, gives a lot of discretion.  Question for us f where do we want to push the board.  We may have to tell the board what the standard is.  Both sides will be trying to do this, we need to know which standard we want to argue for.  More or less discretionary standard.
This has probably happened before, should be able to look to the record to determine what has been done before.  We want to know what standard they have used before.  This should be available from the public record of the town meetings.  Says specifically in 15C that decision is made at a public hearing duly advertised. The decision has to be written.  There will be a record of written decisions.  Their might not be briefs or written opinions.  Most people requesting permission are single family residences, might not have hired attorneys, less formal process.
Want to find out if the planning board has committed itself to one viewpoint or another, assumes a legal stance of the board which may not be in place.  May want to look at other planning boards and how they have interpreted the statute.
May be only written permissions, not written denials.
May want to look at newspapers, editorials to see if any of these types of disputes have been documented, neighbors have complained.
Want to know why VNA wants the second driveway.  They want to have entrance and exit.  They do need parking, visitors and staff.  There will be a question of width of the driveway, vehicles coming in, though not emergency vehicles.  
Concern over public opinion, neighbors have a lot of misinformation right now that they will introduce into the record at the public hearing.  We want to counter this.  The rules will matter less than whether or not we can get political support for the facility.  We should be talking about how do we get rid of the misinformation on the part of the neighbors.
What other facts might you want to know?
-	VNA taking a house not being used at the time, they are going to maintain the house in and out.
-	Where else have stone walls been knocked down.  Might want to show that others have been allowed to, so not to allow us to do it would constitute discrimination.  Research the records, talk to the neighbors.  
-	May find no permits whatsoever.  Homeowners probably don’t know about 15C. Margolin should go to South Street and videotape all the structures around 920.  Find out how many have a driveway, then find out if they have a permit.
-	Is a wall there?  May have been torn down so much that it no longer exist.
-	Our neighbors who are coming to oppose us may not have gotten permits to break through the wall to put in their driveways.
The goal is to use the building as a hospice, not victory at all cost.  Don’t want to put the hole in the wall and accept the fine to the extent that it could hamper further cooperation with the board.
Can we go through the wall and pay the fine?  Can we say to Kathleen Wright do it quick before the neighbors organize?  If everything else fails you can always tear down the wall and pay the fine.  Is there a problem with that?  Yes, 40A 7 says its 300 per day.  But there are other interpretations.  Look at as if the fine is assessed once.  Talk about it as if it is clear that VNA is going to pay Margolin a lot more than 300 to go the hearing and argue it.
What about the ethical arguments?  Any problems advising a client to break the law?  Should you have any problems?  Dichotomy between moral and ethical considerations.  Consequences, should you decide to break the law, not only are you breaking the law, but there are increased cost.  
It will pay in the long run to act morally, suppose we do all of the possible things and they deny the permit.  Want to tell the client all of these options in the beginning.  Now at the end saying this is the only option left, do it at your peril.
4/13
3)	What is the appeals process and on what grounds would you appeal the denied building permit?  Does the Fair Housing Act protect hospice residents from state and local government discrimination?
	How can VNA respond to the Building Inspector’s Decision to deny the building permit?
What is the decision that we are appealing?  The decision to deny the building permit.
Why did Armand Levigne reject the permit?  No hearing, just applied, got back the letter.  Doesn’t apply to the limitations placed on SRA.  
Looks like the intended use is for a nursing convalescence home, need to apply for a special permit.
Arguments:
-	No increased traffic.  Not a reason for the original denial.  Probably wouldn’t cite as a legal ground for denial.
-	estoppel against enforcement, if didn’t enforce against prior residents you can’t enforce it against us.
Appeal to the Zoning Board of Appeals: 
-	VNA goals, to open this hospice and other hospices later.  Might make you more open to judicial action.  Practical problem with going to court.  We have to exhaust all of our administrative remedies.  We must ask for a special permit or we can’t go to court.  Its confrontational, antagonistic.  At some point the battle is going to have to be fought.  Litigation also involves time and money.  Time here also means mortgage payments, so there is a real urgency.
-	ask for them to overrule the denial of the building permit.  The permit should have been granted
VNA is an educational institution, should not be subject to restrictions.  Non-profit educational corporations are exempt from this.  Would enable you to operate as of right.  Based on the by-laws and 40A 3, the town can’t place more restrictions than allowed by the state.  Even if the town had placed additional restrictions, the state would govern.  Probably want to look at the state rule, since it will govern.  The by-law is narrower.  Trying to get them inside some other category to get them a Y.
Fair Housing Act, the occupants would be considered handicapped/disabled.  Would be under the fair housing act.  Should be given the permit to full enjoyment of the premises.
The intent for the residence is not inconsistent with the proposed uses for the community.
How do you define a nursing home?  Place where people are not acutely, chronically ill or recovering.  This may be a nursing home.  But people may be acutely ill.
-	Ask for the special permit
What is the problem with asking for a special permit?  It concedes that we are a nursing home.
Levigne will probably have a lot of influence with the board, also once we get the special permit we have to go back to get the building permit.
They want to open the hospice now in Needham as soon as possible, with as little confrontation and cost as possible.  If they do that at the cost of substantially hurting ability to open other hospices in Needham, that factors in.  If we go for a special permit, admit to being a nursing home.  Problems, Kathleen Wright emphatically says we are not a nursing home.  Ideologically opposite to perspective.  Go to another town, we know you are a nursing home.
Doubtful use: pick the one that most closely resembles the use described.  Here Levigne argued that it was a nursing home, could argue that this is untrue.
4/14
City of Eastlake v. Forest City Enterprises, Inc.
Facts: landowner purchased land in a suburb of Cleveland, he wanted to build on it.  He applied for a zoning change to permit the construction of an apartment building.  The lot size is 8 acres.  Just one big building.  
Issue: He is not asking for a variance, wants a change by-law amendment.  Administrative since just one parcel of land versus setting out a plan which would be legislative.
Legislative v. Administrative – look at
1)	body that makes the decision.  Body that makes zoning change, amendment to the by laws is likely to be the city council.  This has been changed in Eastlake.  
-	Probably the planning commission’s role in this process vis a vie the city council, the city council does the analysis about what plans to put on land and the planning commission handles request for variances.  
-	Request for amendments probably goes to the planning commission first since they created the by-law.  The city council gets the recommendation from the planning commission.  
-	In Fasano had planning department made up of experts, a planning commission that is normally appointed.  A political process, they then take the expertise of the planning department and bring in broader issues.  The planning commission then makes a recommendation to the city council.  The city council then passes the by-law which has the force of law.  They are the direct representative of the people.  
-	They don’t do this for variances, have the nature of adjudication, very fact specific decision.  Not something you want city planning experts, political representatives to be in charge of.  Just want a zoning board of adjustments, enforcement officer applies the rules to the facts.
-	In Eastlake, have a request to change the by-laws.  This is normally done by the city council that sets broad legislative policy.  The city council is the legislature for the city.
2)	The nature of the change and the effect of that change on other parcels of land.  Here it is administrative, dealing with one parcel of change.  Nature of the decision v. Nature of the decision maker.
-	In Fasano, MacDonald had legislative bodies making administrative type judgments.  Not always clear.  Those courts went different ways.  In MacDonald had 855 acre parcel and a sophisticated plan.  It looked more legistlative.  
-	But this is only 8 acres, town of 29,000 people.  Thrown a curve here because the city council not making this decision.  Its eventually going to a referendum.
What is a referendum?  What are the voters going to decide?
Decision of planning commission can’t be effective unless approved by 55% of the voters.  All the voters, not just the voters affected by this change.
How did this do in state court?  Initially approved, then Ohio Supreme Court decided the charter allowing the referendum was invalid.  Why?
-	Due Process, 14th Amendment.  Based on Ohio or U.S. Constitution.  Must be U.S. if based on Ohio, it wouldn’t have gone to the S. Ct. because that’s up to Ohio.  Even if satisfy Ohio standard, still has to satisfy the U.S. standard.  Different now, a state court presented with a civil liberties, due process issue and wants to violate rights will base it on State Constitution because the federal supreme court has become much more conservative.  In this case since they based it on a basic allocation of roles, basic constitutional issue that Ohio must have spoken on.
Supreme Court reverses and remands: What are the arguments for Forest City?  What are they complaining about?
-	Claiming its arbitrary.  There is no standard at the referendum for what the public is going to approve and disapprove.
-	What is the standard of a court reviewing a decision in a zoning context?  The decision must not be arbitrary and capricious.  This is the standard used here.
-	If its argued as a due process violation, you should ask where does the due process requirement come from.  The question here is if the decision to rezone was substantively arbitrary.  Have to ask what rights the landowner has.  The rights he has puts on the decision maker the requirements of due process.  Then we look to see if it was arbitrary or passes some other standard.
-	Bundle of property rights not implicated in this case.
	Excluding others
	Being able to develop the land
	Selling the land
-	Could argue that arbitrary was not the right standard.  Has to do with if the change was legislative or administrative?  Arbitrary standard used for legislative decision.  But is this a legislative decision, request by one landowner to put up one building. Looks like a variance or at the most discretionary.  Parallel spectrum from ministerial decision, if certain facts are met, the administrator must decide one way or the other; i.e. driver’s licence – death penalty (discretionary).  This looks less discretionary.  Is this the right place for this apartment building, very fact specific.
-	Courts make adjudicative decisions, best at investigations into individual issues.  Better at reviewing those kinds of decisions when made by others than reviewing discretionary issues – death penalty.  Compared with whether a particular proceedural issue has been dealt with appropriately.
-	Powell saying this is an administrative decision, we shouldn’t use this broad deferential standard.
-	Eastlake came up as an amendment to the zoning by-laws by an individual.  But still affects the community’s rights, lessening degree as you get further away.
-	Whoever is deciding when a landowner comes to discuss its use on the land, the city council should be asking:
-	Consistent with the plan
-	What are the interest to be implicated going to be, broad deals with the whole community or localized
-	Should be taken into account when deciding what the standard of review is going to be.
Zoning is one example of administrative law and judicial review of administrative decision.  Based on several assumptions:
-	The administrator should only do what the legislature, which is democratic, tells him to do.  Fidelity to the rule.
-	Expertise, the administrative state, regulatory state, began in the 19th cent, but then just consisted of giving tax dollars to industry.  Setting up regimes whereby taxpayers paid the industries directly monopolistic prices.  
In the 30/40’s New Deal, the federal and state gov’t. began to regulate and subsidize industry.  The theory behind the growth of the regulatory state, strongly in zoning, technical expertise is the justification for the regulation.  Reason may be beneficial and harmful externalities.  The vision of science of the 19th century that you could scientfically plan a city.  Takes experts, if you give them the power to do this, they will make the ideal city.  We should take it out of politics.  Now replaced by the people will do it themselves, brings in referendums.  Like in California.  
Around the 50/60’s people became anxious by result of expert regulatory schemes.  Expensive to fly, the regulators went to run the industries.  The courts came in to replace this, to decide whether or not the bureacrat has abided by the law passed by the democratic process.  Judicial review of legislative action is vastly easier than earlier.
-	Scope of Review: if dealing with a political decision the process is what is the vision of the city.  What should the goals of our administrators be?  Didn’t anticipate these needs.  Want to amend the plan, want to have experts help us.  They will tell us how to accomplish this goal, then the politicians, using their own values, will make the decisions with the expert input.  They will create a zone, fit it into the mistake of the original plan, going to change it.  Fasano the best case to understand creation of new/floating zones.  Probably a purely legislative decision.
-	The most extreme legislative decision is doing an entire legislative plan from the beginning.  
-	The next could be a politically expressed need, broad-based process.  When deciding if you want a planned residential zone, don’t need testimony, just deciding if the town needs the slightly more dense type of housing.
-	The most extreme administrative decision, unfair to ask landowner to give up ability to use land profitably in order to enforce a general rule.  The more general the rule the more fair it is in general, the more inevitable gross injustices in individual applications will be.  When these situations are discovered by the landowner who can’t use the property by the rules.  Then have a decision, there will be opposition.  Have a hearing, put person requesting the change under oath, the neighbors then have the opportunity to cross-examine.  Issue of individualized rights.  Classic adjudicative decision process.  Individualized administrative decision.
-	When we judicially review this stuff, what standard should the court use?  The kind of justice that courts are interested in is justice affecting individualized rights in individualized circumstances where the majority is putting a burden on an individuals rights.
Focus on Eastlake, where on that spectrum does it fall? 
Hypo: whether or not NY should have rail system?  Should we drain the harbor, build up that aspect of the NYC economy. That is political.  Is the decision to give an amendment on a piece of property, is that more like should we have a freight rail system or should we put the switching yard in Red Hook Brooklyn?  Not that easy.  Presenting argument that its clearly an administrative decision, can make the argument the other way as well, a single landowner trying to get his request treating in a just fashion in an individualized dispute.
Other side, this is a small town, not just an individualized decision, it’s a departure from policy, maybe more legislative.  If we go back to Fasano, the legislative decision to create the PR district has been made, but have yet to decide where to put it.  Each time its down, it requires an amendment to the plan.  Argue the same factors that were initially raised back when the legislative decision was made.  Legislative scope of review then the body making the decision doesn’t have to worry about a record, cross-examination, courts coming in and making sure that both parties are treated fairly.  Only have to decide is is it arbitrary and capricious.
As opposed to asking for substantial evidence of due process.  Arbitrary and capricious standard, don’t have to raise any of those issues.
What is the right?
-	Note case, p. 1193, Reid v. Architectural Board of Review, this is her property right.  Before it can be taken away have to give them due process.
-	What property does Forest Industries have at stake here?  Its the most profitable use.  Is that a right?  The property right is the right to make a reasonable profit?  Is this threatened by the denial of the zoning amendment.  Not threatened here, the land was zoned for light industry.  That’s the way he bought it.  Like South Street, SRA.  Then you say you have a property right that has be protected by due process when I apply to get something that I knew I didn’t have when I bought it.    Want zoning change to make land more valuable than when I bought it.  Is that a right we have to protect?
-	Justice Stevens is concerned with this.  Some property here that is implicated, this person has a right to due process.  Where does that right come from?  He is not being stopped from doing something he could otherwise do.  He bought it this way.  What is the property interest?  If you have property, part of the bundle of rights you have is the expectation that your use of that property will be governed in a way that is rational, non-arbitrary.  That includes asking for things you didn’t have before.  As it should.  Fundamental to a society that is democratic and smart.
-	Justice Powell’s dissent is about the structure of zoning, saying this makes for lousy decisions because in a referendum situation most voters don’t know squat about this situation.  Most of the voters won’t vote.
-	This process disfavors developers.  When you have broad based referendum, people with money have the advantage.  
-	Takes out any expertise, planning standard in the decision.  Looks a lot more like an adjudicative decision that requires some look at the individual situation, not so broad based.
Zoning as restrictions on the rights of property owners in the name of the common good of rational planning by government.  Administered by a bureaucrat.  If you have these factors normally conservatives against this.  Want to get the gov’t. off the individuals backs.
Liberals on the other hand, the richest communities zone ferociously.  There is a positive correlation between conservatism and wealth.  Drastic control of individual freedom.  A question of process and democratic self-determination.
The view of the gov’t. posing restrictions on the use of wealth can be consistent with the idea of severe restrictions on individual use of property.  People in the U.S. who own residences have a sense of property rights that says “when I buy my lot the property rights are not solely my property rights, its more the degree that owning my property gives me rights to control others use of property that has an impact on my property.  Outward looking and control centered.
Too harsh to say no property rights implicated in Eastlake, denied nothing that they bought.  Too casually dismissed the idea of liberty rights being involved.  Not dismissed, covered in Stevens dissent.  Liberty rights are offended by the idea of not being able to do something you want to do.  Can be expanded to include the general processis of government.  This level of process cannot take place in a referendum.
South Street Part Two – no written memo required
On Monday, April 12, we will discuss your memos, and at the end of class you will receive part two of the exercise.  We will discuss part two on Wednesday, April 14, and your group should meet briefly before Wednesday’s class to formulate a group position, if possible, on the correct response to the problems posed by the new developments.  No further written memo is necessary.
VNA did do PR campaign.  Needham is not a rich area, lot of people live on small lots.  This is a rich area of a middle class suburb.  The Planning Board gave VNA the permission to go through.
There was no question that they would have to grant the driveway.  But if they had blocked it VNA would have had to sell the building, there was that much of a time barrier.
The neighbor agreed to let VNA use the driveway until the second driveway was completed.
The process before the zoning board of appeals was not smooth.  3-0 vote required to overturn Levigne.  Voted to not grant the special permit.  Disclaimed the power to declare the Needham Zoning By-laws unconstitutional.
Opponents paid a lot of money to contest VNA.  They probably would have contested any appeals process.  VNA would have to pay mortgage, Margolin, just starting a huge legal battle.
Options for VNA
-	go to court to appeal decision of ZBAN under the Fair Housing Act.  Even if we win might be a pyrrhic victory.  Might want to show that the Needham board does not have a right to make this kind of decision.  Just because we sell the house and give up the case in Needham doesn’t meant that we no longer want to pursue the question of whether a hospice can go up in Needham.  This is the first significant hospice in the commonwealth.  Precendence will be set, if we give in to public stonewalling, won’t achieve goal.  Have to deal with it so that the next time we have a precedent.
-	File in State Court under Section 40A 16, to contest both the local and state action.  The fair housing act gives concurrent jurisdiction.
-	Will the grounds be different from state/federal arguments?  Have an appropriate action for the superior court.  
-	Is there any reason to go to the federal court?  May avoid local bias from neighbors in the federal court.  Want to know where the jury pool is?  Federal court in Boston, wider jury pool.
-	Empirical question about whether Needham is going to be antagonistic to this.
-	Federal cause of action better for wider precedent, apply throughout the 1st Cir., higher degree of deference.
-	Statute of Limitations question, shorter in state court.  
-	Can get attorney’s fees in a federal cause of action.  But if you have concurrent jurisdiction might be able to get fees in both since its in the federal statute, 3613C.
-	VNA filed in state court.
-	Ended up going to land court.  The judges in the land court will know this stuff cold.  If you are right you want a more knowledgeable fact finder.  About expertise.
-	Downside to this course of action, now have lain down the gauntlet.  Have said we are going to law, suing you for discrimination.  But we have tried all the other options, appealed to the local board, did the PR campaign.  Doesn’t matter as far as 920 South Street is concerned because if we don’t get something quickly then its over.
-	Sell the house, might have made a profit.
-	Threaten to sue, but work for a settlement.  Maybe won’t have a money problem, because the firm might do it pro bono.  Still have time problem, still can’t pay mortgage.
-	Problem leasing the house, what if they win?  If they get the right to make the hospice, they then have a tenant.
-	Make an Amendment: Goes to the experts on the planning board, studies, sends to planning board with a recommendation, the planning board recommends to the city council, approves.  Sends back to the planning board to be implemented.
	What does the amendment say?
-	want to distinguish a hospice from a nursing home.  Educational facility shouldn’t be put under the restrictions of a nursing home.
-	RHH, residential hospice home, adding a new use 
-	Whether a new use or a new use district its an amendment either way.
-	What if changed the rules to allow for approval with two votes rather than three.  Can’t do this because this is a state created rule, 40A section 9.  Won’t want to enact this policy allows approval too easily.
-	Want it to be a legislative decision in our favor.  Want a use rather than a use district.  When the use is created by the Town Meeting.  The legislative body, want it placed immediately so the whole thing is seen as legislative on judicial review.  Also want to be able to use it now, not in the abstract.  If its not OK on this property we will have to sell it.
-	The Town Meeting will vote on it.  Want it to be in the Residence category.
-	Do you want it to be Y’s across the board?  Want to combat the fear that hospices will go into each zone, all over the place.  All residential zones, no.  Just put it into SRA. May limit choices later, but it’s the easiest one to get support for right now.
Work with ally on the planning board to get community support.
We control what amendment we propose, but the committee can make revisions.
What do we do with RHH, we have to define this use.  The definition can also be revised.  
If you go to town meetings, the public is going to decide.
Want only one hospice in Needham, but may want to open them elsewhere, don’t want to limit yourself with wording, structure of the amendment to have it used against you later.
Monday, Reading 
4/19
Tues:	1265 – 1274
Wed:	1195 – 1233
Village of Belle Terre v. Boraas
Facts: 6 students from Stonybrook that wanted to move in together.  Ordinance said no more than two people could live together unless they were a family.  The students brought an action that this was unconstitutional because abridged:
-	freedom of association, 
-	interferes with their right to travel, migrate to and settle within a state.  Footnote in the majority opinion talks about “democracy is born of free land.” Used by the students in their brief.  An appeal to one of America’s myths.
-	Idea of freedom, go where you want to go, live where you want to live.
-	Family values, triumph in Moore v. City of East Cleveland, shows a preference for families.
-	Idea of what your land is includes control over your neighbor’s land.  Have to distort your view of your neighbor’s land to get a view of your land. 
Go back to brief for Ambler Realty in Euclid which discussed the nature of zoning.  Talked about what was natural.  Zoning trying to prevent the natural development of Euclid.  The lawyer said the operation of the market was natural. The land was best suited for industry taking advantage of the transportation infrastructure in the area.  The city of Euclid was trying to block that natural development.
-	Zoning standing in the way of nature, failed in Euclid.  In many instances it doesn’t, like in Belle Terre.  Has to do with the pressure on the city of Euclid and the village of Belle Terre.
-	Assumption of the brief, and most people, is that what is natural is the market.  Zoning calls all of that into question.
Issue: How do people get control over their land?  Each village, town, can organize itself democratically to determine its own future.  Zoning is the archetypal expression of that.  Have conflict of the two here.
Rule: the town wins, the republican ideal of the people getting together working for the common good, restricting individual rights in the name of the common good.  Individuals restraining their rights for the common good.  They chose to do this, the court said that was fine.
Limitation on this in Moore
Moore v. City of East Cleveland
Facts: zoning law restricted families to an extent that the court found to be unacceptable.  A grandson and cousin of grandson.
Issue: this was not a felony but she was guilty of a crime.
Rule: said that the decision in Belle Terre was fine in that this zoning requirement was different in that it not only restricted families, but drew an arbitrary line at the nuclear family.  Not constitutional because arbitrary and capricious and therefore unconstitutional.  Such a restraint violates the due process clause of the 14th Amendment by implication.  Interpreted to include family values.
Freedom to travel comes from the commerce clause.  Says that interstate commerce shall be one of the powers of the federal government and particularly of congress.  Provides some check on zoning, but not much.
Schad, Reid, Stover (note cases 1193), give more civil liberty limits on zoning.
Reid v. Architectural Board of Review
Facts: Reid tried to build a house, but could not because it did not fit in with the other type of houses in the neighborhood.  Here emphasizing the historical nature of the homes in the neighborhood.  Different from Cheyenne Homes v. Rhue case, with the spanish style house.  More than aesthetics, the accumulation of practice in both instances which ended up prohibiting a different kind of practice.  In Cheyanne, the first 2/3 of buyers that brought in ranch style homes.  In Cleveland Heights, it was 100 years of architecture in the town none of which resembled Reid’s modular low lying house.
Issue: the practice of the community is limiting the freedom of its members.  May be a greater length of time than Cheyanne, more of a justification.
In Cheyanne homes, those moving there agreed to many more restrictions than the home owners in Reid.  Deed restrictions put them on notice, given a choice whether to enter into them.
Here we don’t know if the law existed when Reid moved in.  The town had an architectural board of review just like in Cheyanne.  When she went to buy her house, if it was in existence, how would she get notice of it?  Would have to go the city’s by-laws.
Marketable title: Buffalo Academy, someone trying to get out of a deal because the land has restrictions on it the seller has not disclosed. The seller is bound to give notice of all restrictions from the public record.  The seller here would have had to tell Reid of the restrictions.
City of Eastlake, referendum process created after Forest Industries tried to use the land for an industrial purpose. 
In Cheyanne Homes/Reid If there is no difference in the amount of notice, restriction, the way it was developed.  Both boards based their decision to block based on aesthetic incompatibility which led to a decrease in property values.  What you need for ACC, is an architect to tell you these two things are incompatible or a real estate agent to tell you that there will be decrease in property values due to aesthetic incompatibility.
In subdivision complex, the Rhues could have gone to another subdivision or bought a lot somewhere for a stand alone home.  
Is there a difference between public and private government and the restrictions they can enforce?  As long as Reid can build her house somewhere else, maybe its OK.
-	The nature of a private residential government is contractual so you should allow it to restrict activities more narrowly than a public government.  Voluntarily entered into, stop whining.
-	A public government is a covenant between the government and the governed.   Reid could get together a group of people and try to change the law.  Could do this in private government.
-	The constitution has restrictions which governments can’t waive, whereas in private gov’t the freedom of contract is broader.  Can discriminate on any basis, can be substantively arbitrary as long as there is notice.  Houses brought before the zoning board will be decided on a coin toss, not possible constitutionally for a public government.  
-	Should the leeway of private governments be broader than public governments?  Should public governments have a narrower field of action than private?  Has to do with the parties to the contract.  It’s a matter of scale and choice and the breadth of the contract.
South Street Part Three
1)	Since the complaints’ substance is almost identical, why did VNA choose to file both?
One complaint appeals the denial of the special permit and asks that the court rule that Needham must grant it.  The other complaint appeals the initial denial of the building inspector and his requirement that VNA get a special permit; and request that VNA be able to operate a hospice house in Needham as a matter of law.
VNA probably chose to file both because they did not want to concede that they need a special permit to operate a hospice house, but realized that this might be the only way to get approval to open the 920 South Street facility.
Class
18-20 causes of action
Appealing two decisions – denial of the building permit, denial of the special permit.
Different request for relief could have been put in the same complaint
A judge might join them to achieve judicial economy
These two complaints had to be filed separately because the two cases, separate decisions, same short SOL, by which time you must file an appeal.  In order to appeal one had to file before the second one.
Besides going through different causes of action, provides all of the legal grounds for VNA’s opening of the hospice.
2)	Do VNA’s appellate arguments have any merit?
a)	Needham’s decision to prohibit VNA from opening its hospice house is arbitrary, unreasonable, has no substantial relation to public health, safety, morals, or general welfare, and is unnecessary to accomplish the public purpose for which the by-law was created.
b)	Prohibiting VNA from opening its hospice house has a disparate adverse impact on citizens with handicaps.
c)	The Town of Needham is selectively enforcing, without lawful basis, its by-law restricting the number of unrelated people who can live together in a single family district.
d)	As a result of a) through c), Needham is violating the Massachusetts Constitution, Part I, Article 10; Amendment Article 114; Federal Fair Housing Act; 
e)	General Laws 40A §3 is being violated because a dominant purpose of the hospice is educational.  P is a non-profit educational corporation.
South Street Part Four
1)	Should the appeals to the land court be withdrawn in light of VNA’s success in placing the zoning amendment on the town meeting warrant?
I don’t think VNA should withdraw its appeals to the land court because they need to be timely filed in order for VNA to get action and the outcome of the town meeting is very uncertain.  On the other hand, the fact that VNA has already filed in court may have a negative impact on the Town Meeting’s perception of its amendment.
Class: yes it should be withdrawn because we don’t want to irritate the town meeting, could just say to them that we are not going to pursue the lawsuit
Also important for the idea exhaustion of remedies as discussed in Rhue.  Don’t have to withdraw, because not just about individual situation, action before the town meeting is legislative, not asking for administrative remedies, those have been exhausted.
2)	As a sworn officer of the court, should VNA’s attorney be engaging in political maneuvering and playing off one Needham faction against another?
I don’t think that Margolin should have narrowed the amendment in order to pit the rich against the poor.  By limiting his amendment to two acre lots, he is further narrowing VNA’s future placement of hospice houses.  More importantly, the benefit of hospice houses has now been limited to more affluent neighborhoods, don’t less affluent ones need hospice care too?
Class
Isolating effect of limitation to 2-acre lots: may not be as much of an issue because patients will learn of the hospice from their doctors and won’t need to travel too and fro once admitted.
Have to look for 2-acre lots in the future, hard to find in more densely populated areas. If find ½ acre lot somewhere else, the limitation can be used against VNA.  
Reason to do it is that the end justifies the means, can’t gloss over the idea that VNA’s first entry into landuse regulation has limited it to 2-acre lots and put N’s in other areas.  Going against what your client wants.  Margolin will then have to go down and explain:
-	walk don’t run defense
-	justifiable strategically, can explain later
Ethical question, whether or not a lawyer can be advocating something which he is simultaneously calling illegal in the lawsuit.
-	want to avoid being accused of exclusionary zoning
-	VNA has no monopoly on hospices, any one else could come along and open a hospice.
-	Problem with saying you can’t regulate hospices, then propose a regulation to impact hospices.
-	There is no ethical problem, it should concern us because we are saying one thing in one forum then exactly the opposite in another forum, loading both arguments with moralistic rhetoric makes you look like a devious person.  Might be a moral issue.
The amendment passed as we had devised it, overwhelmingly.  Twist and turns involving Stanley Tippett and his widow.  Margolin was able to skillfully pit the lower middle class against the wealthy by exagerating their envy and resentment.
What if it were not class?  Is anybody troubled by the idea of Margolin going in and pitting one group against the other?  Exascerbating tensions in the community for his own ends, then leaves.
The lawyers job is to present their clients perspective in a forum set up for that type of conflict.
How to deal with the idea of aids?  Many people who die from AIDS, die from cancer.  Thought part of the reaction of the neighbors was the possibility of AIDS patients.  Should they give a truthful answer
3)	After reading VNA’s arguments to the Zoning Board of Appeals and the land court, do you think its proposed zoning amendment is constitutional?  Are there any other problems with it?
4)	What type of opposition do you anticipate from the South Street neighbors at the town meeting?  Vocal.
4/21
Exclusionary Zoning
Bilbar Construction Co. v. Easttown Township Board
Facts: a developer is bringing this case.  Classic zoning/takings issue.  HE has a half acre lot, he wants to get a building permit in a one acre zone area.  HE is denied.  Why would he try to get a permit, because he wanted to bring a lawsuit.  He wanted to be able to build on half acre lots.  He wanted to make money.  He could make more money building equal sized homes on smaller lots, than on larger lots.
Issue: what is the harm, what is his right that was taken away?  A taking of his property.  Remind you of Euclid, the similar to that case.  Big difference, in Euclid the person owned the land before it was zoned, Ambler realty had a real complaint.  Bilbar bought the land zoned one acre.  Similar to South Street, City of Eastlake.
The people in South Street would argue that the current zoning they bought the house in should allow a hospice house.  Should not have been astonished that they ran into problems.
In City of Eastlake, Forest Enterprises had bought the property then asked for a rezoning. This is even more frontal, not asking for a rezoning. Would be nice to know who financed this litigation, one company, or broader range of companies.  Had the case been won, would have opened the housing market substantially.
Rule: the case wasn’t won.  Difficulty identifying what the damage is, what is the harm.  This person, analogize to private restrictions – Tulk v. Moxhay, knew there were private restrictions, then tried to get out of them to increase the value of his land.  Not playing fair and square.
Justifications for one-acre zoning:
-	lower taxes
-	additional police and fire would be required with half acre lots.  Is this always true?  See Ramapo, Petaluma.  Give some sense of the city planning side of services.  If you have 2 acre or 1 acre lots spread out, that’s the most expensive way to deliver services.  A single family house requires a sewage line, police and fire protection, roads. The more diffuse the more it cost for all of these services.  If you plan for density with the provision of services, the opposite.
-	Dense population would be unsafe in case of an atomic attack.
Which aspect of the police power did the one acre lots vest?  The right to infringe on anybody’s freedom.  Can do what you want unless there is some kind of restriction.  All of those restrictions come out of the police power
-	health, safety, morals, and the general welfare
-	Atomic attack possibility goes to safety aspect of the police power.
-	Morals, good people live in large house on big lots.
-	Zoning decreases economic activity, loss of wealth.
-	Zoning will bring in rich people, fewer of them but each lot will cost more.
-	Its all about taxes, in 1958, not clear where taxes fits in here.  Keeping taxes low, not clear where it fits under general welfare?
-	Never seen a court go through and specify to which aspect of the police power they are referring to, getting power from.
Attack on the police power, this takes my property, look at from the point of view of the impact on the property owner.  If the regulation has a rational connection with the police power, anything can go in here.  The limitation is not these categories, it is when it bumps up against another right.  Local governments can do what they want, they don’t have to show a desire to “regulate lot size.”  States have said this is perfectly permissible under the name of the police power undifferentiation.
There is no differentiation, just say there is a line, if it’s a valid exercise of the police power, then no matter how much it diminishes a person’s property, there is no compensation.  If it goes beyond the police power, it is considered a taking of property, abuse of the police power.  Not a bright line test, extremely politicized, depends on who is sitting on the court at the time.  Determined by looking at the impact on the person’s property.
In PA Coal the court list a series of cases which PA Coal is not, where the legislature says you cannot have a brewery, your property as a brewery is now worthless, the court has said that is fine; brickyard/brothel.  Within the police power, don’t have to give compensation though wiped out totally the person’s property.
Eminent domain is when the state says I am going to take your property.  Can justify taking property to do something under the police power. 
Two ways to get open land:
-	eminent domain: have to give land will be compensated for it.
-	Regulations: In order to pursue the general welfare, morals, health, safety we want low density, no lots smaller than 4 acres.  Exercise of the police power.  This regulation is limited by other rights.  Here the right to property.
Cities will try to get something for nothing.  Low density, less children, rich people.  Put the burden of that, the cost of all of it, on individuals rather than on the town itself.  Would raise taxes.
In these cases see the growth of large lot zoning, attempt to keep a very low tax rate.
Bilbar didn’t claim any difficulty in selling his lots.  Important point.
National Land & Investment Co. v. Easttown Township Board
Rationale for restrictions:
-	may preserve farmland.  Not clear that half acre lots will take away farming land.
-	Proper sewage disposal
-	Traffic
-	Preservation of open space
-	Greenbelt 
The best way to get this is not 2-4 acre zoning.  Should zone rural, or buy a conservation easement, have to pay.  Don’t want to do this.  If you want to have a particular character lot size restrictions won’t do it.  People will come in and buy the land and build new homes that look different from houses trying to preserve.  If really want to preserve have to buy the property.  Its simple but its costly.
Have to take title, give fair market value – eminent domain, can only be done for public use.  As broadly defined as the police power.
In Hawaii, the state took all the land and gave it back to the long term lease holders as fee simple.
In PA Coal case, the court is saying the regulation has become so severe that it amounts to taking the land from the person and not paying them.  Against the constitution. 
Nor shall private property be taken for public use: use to mean you can do anything with private property but take the title.  Could take the property and the title and not pay a cent because what you did with it increased the remaining property values so you could off set.  Started to change in the 20th century.
The courts are saying now as regulation goes to far we will cut it back and say you have to pay for it.  In PA Coal, it held this at this time in a powerful opinion.  PA wrote another statute, applied the no subsidence standard to all property whether or not it was a split fee.  Where there is a split fee and there was a private deal the coal minor cannot take the support state out.  For environmental reasons we don’t want land subsidence.  Broader, not focused on contract deal.
PA Coal important because said if the magnitude of loss to individual gets past a certain point, Holmes said 100%, absent some other justification – nuisance - you will have to compensated.  No longer valid exercise of the police power.
Hard to say which aspect of the police power is involved.  Refreshingly candid to say low taxes is general welfare but the relationship is vague.
National Land still dealing with a land owenr saying you are regulating my land so severly that you should have to pay me.  Just take it because I can’t make a fair return on my property.
Rule: This is the turn, the court says you are not justifying that 4 acre zoning.  WE will look at your justification.  No rational relationship between the four acres and the reasons you mentioned.  Looks like you are doing it for some other reasons:
-	exclusivity
-	comfort
-	not public reasons, not for the general welfare.
Upham perspective: but it is for the public welfare.  The problem is that the power doesn’t come from Easton.  Should be looking at the general welfare of the citizens of PA, Easttown not a sovereign entity.  Only the sovereign entity has the police power.
Mt. Laurel I
Says the same thing but in a more powerful way.  But different because no longer the developer who is saying you have restricted my property rights.  Developer is another word for a land owner.  When the developer was involved, someone inside is saying violation of my property rights.
Facts: Here have outsiders, Springfield, not allowed to rebuild substandard housing but couldn’t because it was zoned to get rid of them.  Hooked up with a coalition of people outside town.  
Rule: Based on constitutional premise that localities cannot pursue through regulation private interest.  Zoning had departd from puruit of general welfare and became pursuit of private interest of people within the town.
Localities accomplishing this through illegal means, through the cheapest possible way.  The private developers don’t have police power to get things for nothing, have to buy the property.  Public gov’t. can exclude by passing an ordinance.
Mt. Laurel II
And we mean it.  WE are setting up a special judicial system to take care of this.  Watching closely, won’t get away with it.  Hard to buck local government.  Resisted this change.  
Now have communities taking care of their Mt. Laurel fair share by paying money to other townships to build sub standard housing.
Isn’t Reid pursuing just as private an end as Mt. Laurel in having a certain lot size.  
-	Times change, ideas change.  The view of what is permissible in zoning, is that if there is movement, it is becoming more restrictive.  
-	Maybe the Reid case would go differently now, justifiable if you accept the gov’t. limiting individual’s freedom of expression in some ways.  There is no question that Reid was going to harm the people around her.  There property values were going to go down if she was allowed to build that house.  That is a general welfare argument.  
-	Doesn’t change when you point out that the general welfare has to be the general welfare of the state.  There is not a fair share requirement for modular homes.  Absent in the Reid case is the sense of exclusion.  Mt. Laurel is positively excluding people or not serving the general welfare.  
4/20
V.	Takings (2 weeks)
Chapter 22 (pp. 1265-1285 and 1300-1317) and distributed cases
Miller v. Schoene
Facts: Sick cedar trees.  P lost the ornamental value of the trees, so that others could make money on their apple orchards.  Is not a public interest, he should not suffer the loss of the property loss in the value of his cedar trees.  He can no longer grow these trees since they are a clear threat to the apple orchards.  P was not compensated for the loss.  The trees were infected, though not clear by statute that they have to be infected.
Issue: the state is saying we prefer people with apple trees to people with cedar trees.
Rule: this is OK, have to make choices, no big deal.  If could show that this was a nuisance case, would be able to show a stronger public interest.  Government plays two roles:
-	Prohibiter: nuisance and quasi-nuisance, easier role to justify than choosing between two private interest.  
If its possible for Virginia to choose the apple industry over people with cedar trees, could a state with a strong dairy industry to outlaw margarine.  (Wisconsin)  In the public interest to benefit the more productive use.  Making an assumption about what the public valued based on wealth maximization.  Here putting the value of the wealth to a private interest over another private interest.
The legislature says its public interest, that’s how you find out what the predominate view of the state of VA is.   Could have decided to tax the apple growers to compensate the owners of cedar trees for their destruction.
Public road becomes the property of the town of Farmington, do we pay the Cushmans for their property.  Yes, private land taken for a public use, must be compensated under the Fifth Amendment.
Might question why they should be compensated, will get a higher value for the land since now there is a road.
Late 19th Century when the gov’t. started to compensate for these things.
Wednesday, exclusionary zoning.
4/26
South Street – Five and Six
Parts five and six: part at the end about the building code.  Levigne still has arrows in his quiver, even though he has lost the war, still some battles to be fought.  Ingenious stuff in the letters from the Asst. Attorney General to the town clerk in Needham.
One of the problems was that the amendment was arguably unconstitutional, raise the issue of whether that was a problem for a lawyer to advocate something that he believed was illegal.  The other idea, what could the opposition do about it.  Even if it was illegal, if advocating something likely to be found illegal, possibility that it will be struck down by the court before you will be able to build the hospice.  Why wasn’t Margolin worried about this?
What would happen if the amendment was declared unconstitutional and illegal?  VNA would get judicial review anyway.  Would still get to build at 920.  
-	Would be unconstitutional because two acres lots are exclusionary.  Exclusionary to say that hospice can only be built if you have a two-acre lot, would not be reasonable accomodation to disabled people.  
-	Levigne interpreted the old by-law to require a special permit to have a hospice house.  Could argue that SP is a reasonable accommodation, if they give it not unconstitutional.  But to deny the special permit would inhibit reasonable accommodation.  
-	If knock down new amendment, could have SP’s across the board.  If they then apply and are turned down would be knocked down as unconstitutional. Would probably get Y’s across the board.  
-	The court would look at this and have to make the decision of whether Margolin was right in thinking that hospices were residential, these are residential so they can go in any residential area.  If that happened, all that would have happened for the neighbors is that hospices were possible everywhere, but not impossible at 920 South Street.
The AG had the same problem that Margolin had.  He is very liberal, very much in favor of hospices.  Any amendment or new zoning by-law has to be approved by the AG.  Margolin knew this, neighbors knew this.  When the amendment came there was this conflict.
-	do you approve it and make the same kind of bad precedent VNA was concerned with, creating an exclusionary zoning restriction?
-	AG got around this by sending a letter noting all of the problems, so we are going to interpret it in a strained way in order to allow hospices in.  Another acceptable application of Article 2.  Consider this as just saying that 920 is OK, but also means that hospices are OK elsewhere.
-	The town clerk has to respond.  “Friendly commentary which is non-binding on Needham.”
Takings
Divide takings into a set of possible test.  Can be used in any order.
-	Noxious use/benefit to public (Scalia’s opinion notwithstanding)
-	Before we got to post-modernism with Lucas case, this was generally the area that was solid.  If it was a noxious use you should prohibit it.
-	Scalia says so indeterminate that its worthless, one persons noxious use is another’s benefit.  But it will continue to be a factor.
-	Benefit to the public, flip side of noxious use.  Benefit to private interest is wrong, outside the police power.
-	Are you trying to provide a benefit to the public or trying to prevent harm to the public?
Euclid, noxious use is nuisance.
Pennsylvania Coal Case, Holmes opinion.
Starting in late 70’s/80’s hadn’t touched noxious use and idea of valid exercise of police power still called a taking.
Lucas came out of the blue, cases before that had changed takings jurisprudence dramatically.  Scalia acknowledges that in the early days of takings, only the actual taking was compensable.  Not the idea that uses could be so constrained that the state would have to pay for it.  Changed in 19th Cent, Penn Coal and Holmes’ majority opinion.
No controversy that the early cases looked on noxious use as the keystone for the government action.  Expanded based on uses that were common law nuisances – brewery, quarry, brickyard – not ordinarily common law nuisances depends on where they are found.  Transition from core of nuisance to apt. buildings, live entertainment, signs was easy because distinction between harm preventing and benefit conferring is in the eyes of the beholder.
Noxious Use Approach: Like Yellowstone, consistent with Sax’s view, ecological view of land.  If you build on these barrier islands it will do something which will cause something bad to happen elsewhere.  In order to prevent the bad, have to prevent building.
Benefit Conferring Approach: 
-	We need vistas along our shorelines, stable dunes, shore lines, beaches to attract tourist.  Toursist are the main source of income along the barrier islands.  To attract tourist have to keep this area undeveloped.  Will build up taxes, etc, from tourist income.
-	In order for the coast to be beautiful need a variety of species, clean water, stability in the stand and beaches, requires a buffer zone where no building can take place to preserve all of the other things.
These approaches are flippable.
Deconstruction/Destabilizing effect of Scalia Opinion in Lucas:  
-	Differences between benefit conferring and prevention of harmful use, the distinction is difficult if not impossible to discern on an objective value free basis. Distinction impossible to make in an objective sense.  Everyone is bound by their own values.
-	You can play word games and break down distinctions, but there is a legitimacy in the legal system and practices that depend on history.  If all of a sudden what has been a keystone of decision makers is taken away by saying this is flippable.
-	At the end of the opinion he imports nuisance doctrine, any given principle or rule is just as flippable as this.  This test we have used for a long time is inchoate so we have to go back to nuisance law.  Going to set up a categorical rule, because the rules we have been using don’t make any sense.  100% dimunition = compensation based on nuisance law.  Factually particularistic.  What is a nuisance in one circumstance may not be in another.
-	Institutional problem, now the courts and legislature will have to go back and reevaluate what is a nuisance.  This is not static, it can change with new knowledge.  One way of changing it is for the legislature to go back and do an ecological study which says that bad things happen when you do this.  State plainly what the nuisance is without mentioning tourist industry.
-	The entity which normally decides what is a nuisance or a harm is the state.  The fed constitution guarantee’s property, but the state define it.  The legislature had defined this as harm, but drafted it in a way that made it look like benefit conferring.
-	NY State opinion in Penn Central, looked at through Lucas land, how much would that land be worth if there weren’t bridges over to the barrier islands?  What about the roads, the insurance, the weather forecasting that is necessary.  Whole range of benefits conferred on people who own property on the sea shore that makes the property valuable.  If his property would be almost valueless, why couldn’t you offset the value conferred against the cost to him.
-	You put a road through someone’s farm, make it more valuable by adding a road through it.  Why should the landowner get five times the value of the land and money from the state for making his land more valuable.
-	5th amend idea that the social contribution to wealth is not going to be considered.  The NY State Opinion in Penn Central has a socialist ring.
-	Focus on the idea of the 5th amend, nor shall private property be taken without just compensation. Not just to the private owner, but to the public as well.  May be making a mistake by compensating more rather than less than what is just.  Unjust to the public to pay that person more because the public has improved property through tax paying.
-	Addressed in special assessment, user fees, exactions.  
-	Exactions: When can a planning agency require some one to pay for the cost that he or she is going to impose on the community?
-	Special Assessments: take the property and pay for it, then assess every property owner along the road a special tax which is only imposed on the people who are benefited by the road.
-	Functions got separated, now you compensate in one step, and assess in another.
If it was a common law nuisance or even remotely comparable to a nuisance.  Came in initially through Euclid.  Scalia undermines this by saying what is noxious to one person is a benefit to another.  A destabilizing idea.  Not the first person to bring this into land use law, previously in the area of nuisance.  
Dell Webb Case, feed lot, opened sun city built up to the feed lot then sued the feed lot for nuisance.  In those kinds of issues of what is the noxious use, scholars discussed the idea that residential use may be the noxious use, Sun City asking for air that was fit to breath, no flies, in order to have a feed lot have to impose some cost on surrounding land.  In order to have residences, have to impose some cost on the surrounding land – quiet and cleanliness.   Hard to say whether Dell Webb won or not.  What the court did because people were living in unhealthy area, said Spur Industries had to move but Dell Webb had to pay.  Never been done again.
Scalia broke down distinction.  Said idea doesn’t work, could flip it around and say residences are noxious.  Even if everyone believes it is destabilizable hard to say one is a benefit or a harm.  It all comes back to your values.  If you agree with that, agree that words and law don’t mean very much.  
Lower court will still use noxious use and get around Lucas.  Unclear what the impact of Lucas decision will be.  Say we all know if this case had gone the other way and Lucas was left with two lots he couldn’t build on and you offered him $1 and lawyer’s cost he would have said no.  The fact is that this whole case is premised on something we know to be false, that the property is valueless.  Lucas will have no effect whatsoever, because it can always be distinguished on its facts.
Can distinguish Lucas on 100% loss idea.  
A zoning system which gave no rights to appeal, to get no variance or other way to amortize use would receive harsher takings review.  Prohibition of noxious use is within the police power.
-	Magnitude of the loss
-	Despite Lucas dissent, discussion of the magnitude of loss was a well-established factor in takings jurisprudence.
-	The more you lose the more the court will think of this as an unconstitutional taking.
Penn Coal Co., the key concept here is the denominator.  Denominator is the one on the bottom.   If the property in Penn Coal being regulated, put in the denominator, is the entire lot – air, surface, subsurface, support estate – have a big denominator.   If take away support estate.  Have little over big.  If you define the support state as the denominator, have little over little.  Have a total wipeout.  All of it is gone.  100% diminution in value.  Not in Lucas terms.
Brandeis said you look at the whole lot, just because you sell off everything but one stick in bundle of property rights and the regulation takes away one stick because you have transferred your other rights, not a wipe out.  Penn Central trying to sell off its air rights.  Saying our air rights are now worthless, we were going to sell them.  They are our property and now they are 100% gone.  The majority says the air rights are just part of the whole parcel and that includes the building that is still there, includes everything there before. 
What is in the denominator is the key factor in determining mag of loss, can get 100% of loss be defining the denominator.
-	Reciprocity of advantage
-	If all of the cost is put on one person and that person is not benefited by the law then there is no reciprocity of advantage.  The regulation is part of a scheme, don’t need uniformity, need universality (Buffalo Academy).  
-	Want all the lots to be roughly benefited and burdened to the same magnitude.  Can’t put all of the loss on a few unless they are also benefited by the plan.  (Penn Central)
Upholds zoning.  A very strong support is the idea that everyone has burdens and benefits, don’t have to be identical, but has to be there.
PennCentral says you can single out individual property and still not lose the reciprocity advantage.  Because there were 399 other landmark properties.  Also reciprocity advantage with the district and through the entire land use plan with the city.
-	Prohibitor/proprietor
-	Similar to noxious use/benefit to public distinction.
-	If what the state is doing is prohibiting something, that is alright.  If what is being prohibited comes under a noxious use. – good to prohibit something that is noxious.
-	Proprietor is doing something which is providing a benefit to the public – bad to provide a benefit without paying for.  Scalia says just a matter of phrasing.
-	Enterprise/arbitral
-	Adds a twist that helps explain the Miller Case (cedar trees/apple orchard).  All the state was doing there was arbitrating between two incompatible uses.  The court can come in and arbitrate among them.
-	If heavy industry and apt buildings are incompatible the state can arbitrate between them.
-	Versus trying to provide a good to the public and placing the cost of that good on a discrete number of individuals without paying the cost.  
-	Classic example are the parking lots in downtown.  If you want parking spaces to benefit the city, the city should pay for it through tax dollars.  The lack of parking is not a noxious use.  Not arbitrating between different incompatible uses, just providing something the city needs.  Shouldn’t make one subset pay for it.  Could tell new businesses if you want to open, have to provide parking – enterprise use.
-	Yellowstone, ecologically not complete, in order to make the park work have to burden the land around it.  If you are doing that for general environmental purpose, noxious use.  That ‘s ok.  If making those around the park to bear a burden not applied elsewhere, to benefit the public.  Telling them they have to subsidize yellowstone. Enlisting private lands into a public purpose.
Miller is the best case for this.  Reciprocity of advantage also fits this idea.  Restricting some one in a way that makes the entire planned area better off.  Although this persons land is burdened in a particular way it is also benefited.
No distinction between proprietor, enterprise, benefit to public – adds to the chance that the court will find that compensation wasn’t paid.  Illegitimate use of the police power to get for the public a benefit that it should pay for.  Unconstitutional.
-	Expectations – investment backed, reasonable
-	Classic Case is Penn Central.  The expectation is that you will be able to run it as a railroad.  Even though they couldn’t do that.  
-	Are your reasonable expectations going to be thwarted?
Penn Central, reasonable expectations to use it as a train station.  Not unreasoanble to want to build something else.  But if not allowed, can’t argue that their property is being taken.
Eastlake, what were Forest Enterprises reasonable expectations when they bought the land?  To use it for whatever it was zoned for.  In addition, the concurring opinion would say there was also an expectation to have any attempts to change that existing permitted use treated in accordance with due process.  The majority would say that a referendum is due process.
-	Nature of Government Action (physical invasion/intrusion – Loretto Case)
-	If it’s a physical invasion, no matter how small, the courts are likely to consider it a taking.
-	Her building was probably worth more with cable, so why pay her a dollar.
4/27
Final Exam:
-	Upham will have a review session.
-	Sample answers for mid-term.
-	Property Final is open-book
-	Very strict page limitations
-	Will cover: covenants, zoning, takings.  Covenants will look at planned unit developments, includes easments
-	Issue spotter on covenants and takings, short answer on zoning (south street)
-	Zoning and takings could be combined.
Ehrlich v. City of Culver City
Assigned because it sets forth the doctrines in the Nolan and Dolan U.S. S Ct cases which are with Lucas the last three influential takings cases from court.  Also applies it to a different setting.  A situation where land is not being taken – possessory.  In both cases the title was not taken, just an easment.  Nolans and Dolans were required to let strangers go onto their land in return for getting a permit to build on their land.
This case extends that to monetary exaction.  California court makes the assumption that even purely monetary exactions will also come under the Nolan/Dollan rubric.  
Concurrence presents Mosque views he would deal with it as an assessment but if that is true why not dissenting.
Nolan/Dollan
Address what local governments have been doing forever.
Special Assessments: whenever there is a new development there is a substantial cost to the community.  Need uniform plan, rough proportionality, reciprocity of benefits and burdens.  Can’t have a plan if you make exceptions.  Doesn’t look like plan, looks like have to bribe to let you build.  Could be an out and out bribe, or it could be bargaining as in this case and Nolan/Dollan.
Local municipalities still have power to restrict and monitor growth, they do that because if you have a town where there are few social/public services and somebody is able to buy 300 acres to develop, not driven by a plan, all of a sudden you have a dramatically new and different demand on city/county services.  Not just the added population, its where that population goes.
Can address with 
-	comprehensive plan
-	allow growth where it will have impact on cost of city services, existing taxpayers will have to subsidize new taxpayers.  Local citizens don’t like to do this.  Pressure not to tax them.
-	Exactions: Make new comers pay for the cost they are going to impose on the community.   Not shocking when think about the cost on local government.
Unclear where Nolan/Dollan/Lucas are going to go.  Would require a dramatic change in local government if these legitimate exactions are not permitted.  Would also require overturning the language in Nolan/Dollan about how exactions can be done with the underlying assumption that they are ok.
Nolan/Dollan on exactions:
-	essential nexxus
-	rough proportionality
-	Logical affinity, included both test
-	Nolan says, it has to have something to do with the permit.  You have to qualify for the permit, that is still necessary building must comply with requirements.  You have to pay money or dedicate land, etc.  
-	What you are required to do must have something to do with the criteria for granting or refusing the permit
-	Shocking when it came down for two reasons:
-	Easment across the beach has something to do with the beach.  Even though the offered rationale was that we don’t want to block the ocean.  Not a tight logical fit but it has to do with the beach.  Exactions have gone beyond that, you’ve got to purchase it.  Said the essential nexus has to be logical one as well, just having to do with the same parcel is not enough.
-	U.S. S. Ct. has historically stayed as far away from local issues as it could.  The most obvious departure from this is civil rights in local school cases.  But Nolan surprised people by the depth of interest/courage to go into local gov’t. activities.  The entry into it, is takings.
-	Dollan adds to Nolan, and we mean it.  There has to be some logical nexus (Nolan) and you have to be able to back that up with some reasonably competent individuated calculus of what the exaction is going to be.
-	Not just logically related to permit
-	Has to also be roughly proportional to the burden and the roughly proportional has to be reasonably proven.
-	Wonder why P is doing this?  Oregon is famous for planning.   What is she losing?  She wanted to extend and pave her previously unpaved parking lot.  Paving exascerbates drainage problems, clear that going to increase flow of water into a stream.  No question that they could prevent her from building.  Could make her provide a greenbelt for those environmental reasons.
-	The city wanted to put in a bike path that would allow more people to come to her store.
-	She decided to fight it. 
-	S. Ct. said there is no reason to argue with this.  NO reason a private greebelt would be any less effective that a public one.  The bikeway, have to show how this is going to help in any way with protection.
-	Art fees are OK like set backs.  Who could be against aesthetic zoning?  At this time, no one.
What are they talking about?  First footnote in the case:
“A specific plan implements and refines the general plan by allowing for greater specificity as to permissible uses.”  
-	Sounds like can only use it for tennis courts.
-	The city can make this landowner pay it for the loss of this recreational facility.
-	Struck down on Dolan, not because an exaction but because hadn’t explained it well enough.
-	Court says Greenbelts are fine if they are private, no reason to make it public.