Property II: Class #13 Monday 9/24/18 Power Point Presentation National Punctuation Day

1. Property II: Class #13Monday 9/24/18Power Point PresentationNational Punctuation Day

2. Music to Accompany EuclidKen Burns’s Jazz: Disc 1 (1920s) • Regular Office Hours: • Cancelled Tomorrow • As Scheduled Thursday • By Appoinrment Only During Break (Feel Free to E-Mail) • Zoning Materials for Week after Break Posted by Saturday @ 5 • I’ll Complete Info Memos on Chapters 1 & 2 During Break • I’ll Make Available Feedback on 2d Written Assignment When Done

3. Chapter 2: Actual and Desirable Limits on Homeowners’ Association RegulationsSECOND SET OF PROBLEMS (CONT’D)Review Problem 2F Cont’dReturn to DQ2.20Review Problem 2G

4. Review Problem 2F (Florida)For HOA: AF/MM For Cohabitators: RF/JM Under Hidden Harbour II • Will not be invalidated absent a showing that they are • wholly arbitrary in their application, • in violation of public policy, OR • that they abrogate some fundamental constitutional right. By-Law Forbidding Unmarried Cohabitants in Sexual Relationship Significant Difference in Analysis from Nahrstedt?

5. Review Problem 2F (Restatement §3.1 )For HOA: AF/MM For Cohabitators: RF/JM Servitude is invalid if it • (1) is arbitrary, spiteful, or capricious; • (2) unreasonably burdens a fundamental constitutional right; (this is determined as a matter of property law, and not constitutional law.) • (3) imposes an unreasonable restraint on alienation • (4) imposes an unreasonable restraint on trade or competition …; and • (5) is unconscionable (Unconscionable transactions contain an element of overreaching, unfairness, surprise, or harshness that leads to the conclusion that the servitude should not be enforced) Best Provisions for Challenge? Respopnses?

6. Review Problem 2F (Restatement §3.1 )For HOA: AF/MM For Cohabitators: RF/JM Servitude is invalid if it • (2) unreasonably burdens a fundamental constitutional right; (this is determined as a matter of property law, and not constitutional law.) Night try to argue too great a burden on protected sexual acts if can’t do with roommate • (3) imposes an unreasonable restraint on alienation . Would need evidence that rule makes units hard to sell. • (5) is unconscionable (Unconscionable transactions contain an element of overreaching, unfairness, surprise, or harshness that leads to the conclusion that the servitude should not be enforced) Probably best bet for this would be method of discovery/enforcement

7. Logistics: Off-Day Draft II • Jimmy: Picks 3 & 8 • Mike: Picks 5 & 6 • Abby: Picks 4 & 7 • Robert: Picks 2 & 9 • Toni: Picks 1 & 10

8. DQ2.20: Quick Look at Big Picture: Social costs and benefits of HOAs Benefits • Allows for True Common Interest Communities (Tho Not Common) • Big Economies of Scale Make Desirable Housing Cheaper • Almost Cetainly More Real Consent Than with Local Govt • (Per RF) Probably quicker/more responsive to problems than local govt. Costs • May be Giving Up Substantial Freedom to Get Certainty & Uniformity • Residents May Be Disinclined to Support Govt Projects Similar to HOA Amenities • Some additional litigation costs (per RF)

9. DQ2.20: Quick Look at Big Picture Probably most people OK with allowing HOA to make rules more restrictive than local govt. Probably most people OK with allowing HOA to make rules after initial Declaration to address new problems as they arise.. Probably most people Ok with state imposing require-ments to help ensure fair elections & decision-making Leave for you where lines should be drawn and pros & cons of courts v. legislatures to draw them.

10. Review Problem 2G (Lawyering) • Client = Family. Daughter (RR, 19) Needs Kidney • Only 1% of People Have Kidney She Can Use • No friends or family are a match • Family Puts Sign on Car Seeking Donor with Picture & E-Mail Address • HOA Notifies Family They are Being Fined for Violation of Signage Rules & They Musty Remove Sign Initial Steps in Research?

11. Review Problem 2G (Lawyering): HOA Rejects Sign on Care re Kidney from Public • √ HOA Rule in Q • Determine if in Initial Declaration/By-Laws • Get Copy or Picture of Client Sign • Determine if Client Sign is Literal Violation or Exercise of Discretion • √ Gen’lStds for Assessing HOA Rules • √ for Statutes Addressing Signs/Free Speech • √ for Caselaw Addressing Signs/Free Speech

12. Review Problem 2G (Lawyering): HOA Rejects Sign on Care re Kidney from Public • Note: Probably Not Lots of Facts to Check • Might Try to Find Out How Other Signs Treated So Could Look for Possible Discrimination Claim If You are in Florida: What Follow-Up on HH Cases?

13. Chapter 3: Selected Topics in Zoning

14. Local Legislation Regarding Land Use • State or locality generally creates Comprehensive Plan regarding permissible land uses • In accordance with plan, localities pass numerous regulations, governing • General uses allowed in particular areas (zones) • Density of buildings & people • Specific uses/buildings/improvements. • I’ll give you examples in materials (e.g., Coral Gables)

15. Local Legislation Regarding Land Use • Enforced by Local Administrators • Sometimes Separate Zoning Boards • Sometimes Powers Rest in County Commission or City Council • Some powers legislative, some judicial; • Government Actions, so Subject to Constitutionaal Restraints • Ordinary Due Process (Notice, Hearing etc.) • Substantive Limits (e.g., Equal Protection, Free Speech)

16. Some Govt Regulation of Land Use Prior to 1776 • Prior to 1900 mostly piecemeal • Banning particular nuisances (e.g. noxious weeds) • Mid 19th cent.: early attempts at fire/building codes • Twentieth century innovation is comprehensive planning • Often limits uses prior to construction • Cover large geographic areas • Use of zones to divide residential from commercial common • Euclid understood at time as deciding if Zoning in genl was OK

17. Our Coverage • Intro (with Some Constitutional Law) Euclid, Deference & Due Process Belle Terre, Moore & the Right to Privacy • Mechanisms for Retaining Flexibility (Variances, etc.) • Aesthetic Zoning • Concerns about Zoning (Externaslities & Exclusion)

18. Belle Terre & Moore are about gov’ts ability to regulate who can live together • Rely on Right to Privacy cases giving people control over decisions re marriage & having children. • Relatively complex multi-opinion ConLaw cases. Read carefully=!! • I’m interested in where the line id between the 2 cases • Belle Terre uses Rational Basis (RB) to uphold restriction • Moore seems to rely on Heightened Scrutiny (HS) to strike down different restriction. • Need to be clear that if SCT chooses RB, govt wins. IF HS govt likely loses, • So Q is where is line that triggers HS in Moore

19. Euclidis facial challenge to Zoning scheme under Due Process & Takings Clauses. • Unlike Belle Terre & Moore, our focus is NOT doctrine. • Takings in particular is very complex and I like to do at least 7-8 classes if I teach it to be tested. • I give you the little Note re Nectowjust to show extreme case • Instead we’ll focus on 2 overlapping aspects of the case • Great degree of deference to local govt (& reasons behind) • The social effects of a scheme like the one at issue.

20. 3.02: What Rationales Does Euclid Provide for Upholding the Segregation of Land Uses at the Expense of the Interests of Individual Owners?

21. 3.02: What Rationales for Upholding Segregation of Land Uses at the Expense of the Interests of Individual Owners? (Here O alleged 75% loss in value) • Sic uteretuo … (Use land in way that doesn’t harm others Z4 2d para) • Concern re industrial uses injuring residential (esp. children} • Ev Segregation furhers interests re fire, traffic/accidents • If legislative rationale is fairly debatable, defer • Some reference to democracy on top of Z5