Offdays & Absent-Minded Professors Additional Postings for Wednesday by Mid-Day Tomorrow

1. Property II: Class #16Monday 10/15/18Power Point PresentationNational I Love Lucy Day &National Grouch Day

2. Music to Accompany AronsonThe Mamas & the Papas, Greatest Hits (1965-68)featuring “California Dreaming” Offdays& Absent-Minded Professors Additional Postings for Wednesday by Mid-Day Tomorrow World Mental Health Day: Last Wednesday

3. Wednesday 10/10/18 (Postponed Class)World Mental Health Day &National Bring Your Teddy Bear to Work/School Day

4. Written Submission #3: Due Tonight @ 10 pm (Recap) • Two 3-Page Questions • See Specific Formatting Instructions on p.13 of Overview Memo (Avoid Add’l Penalties) • (1) Mixed Chapter Exam Question M1C: • (2) Rev. Prob. 2I

5. Written Submission #3: Due Tonight @ 10 pm • (1) Mixed Chapter Question M1C: Belle Terre/Moore • Legal Task: Address Set of Facts Between Two Cases • Assume Facts Violate Ordinance (Don’t Discuss) • Key Q = Level of Scrutiny • Is Hypo More Like BT? ( Rational Basis = Govt Wins) • Is Hypo More like Moore (Htnd Scrutiny = GovtLoses) • Hard Q Because Moore Announces that Ordinance as Applied to Particular Family is Unconstitutional w/o Articulating a Clear Rule • Protect Any Family Member? Maybe (But 5th Cousins?) • Protect Only Family Members? Maybe (But Nannies?)

6. Written Submission #3: Due Tonight @ 10 pm • (1) Mixed Chapter Question M1C: Belle Terre/Moore • Legal Task: Address Set of Facts Between Two Cases • Key Q = Level of Scrutiny = Hard Q • Hard Q Because Moore Announces that Ordinance as Applied to Particular Family is Unconstitutional w/o Articulating a Clear Rule • Protect Any Family Member? Maybe (But 5th Cousins?) • Protect Only Family Members? Maybe (But Nannies?)

7. Written Submission #3: Due Tonight @ 10 pm (Recap) • (1) Mixed Chapter Question M1C: Belle Terre/Moore • Legal Task: Address Set of Facts Between Two Cases • Key Q = Level of Scrutiny = Hard Q • Use BT Majority & Moore Plurality to Create Arguments: • Facts, Language, Ideas, Distinctions  Line-Drawing • Two Sides & Tie-Breakers • Questions?

8. Written Submission #3: Due Tonight @ 10 pm • (2) Rev. Prob. 2I: Very Full Q = Good Editing Exercise • Maybe Helpful to See as 2 Possible Challenges by Owner • (a) Original Rule in Declaration Violated FL Law • Use test for rule in original documents • Assume no state law rule would require the same sort of approval • (b) Even if Original Rule OK, Board Decision to Apply Rule to Facebook Post Violated FL Law • Use test for Exercise of Discretion, since not clearly part olf original rule • 1990 Start Date = No Internet/Social Media = Not Foreseeable • Questions?

9. Chapter 3: Selected Topics in Zoning: BACKGROUND

10. State Statutes • Enabling Statutes Giving Powers & Limits to Local Govts • Specific Statutes Providing Legal Standards (e.g., Calif. Variance Rules) • Local Legislative Authority • Creates Comprehensive Plan (States Usually Require) • Creates Zoning Rules (Zones, Specific Reqmts, Procedural Rules) • Local Administrative Authority (Sometimes Same Entity) • Handles/Adjudicates Specific Requests & Disputes • Investigates/Creates Administrative Record to Support Decisions

11. Federal & State Constitutions (SUPERCEDE ZONING STRUCTURE) • Due Process Challenges (RULES Vague/Arbitrary) • SUBSTANTIVE CHALLENGES (Eq. PROT./1st AMDT/TAKINGS) • State Statutes • Local Legislative Authority • Local Administrative Authority (Sometimes Same Entity)

12. State Statutes • Enabling Statutes Giving Powers & Limits to Local Govts • CLAIM: Local Legislation or Administration not Authorized by Enabling Statute • Specific Statutes Providing Legal Standards (e.g., Calif. Variance Rules) • CLAIM: Local Legislation Inconsistent with State Law

13. Local Legislative Authority • Creates Comprehensive Plan (States Usually Require) • CLAIM: Local Legislation inconsistent with Comprehensive Plan • Creates Zoning Rules (Zones, Specific Reqmts, Procedural Rules) • CLAIM: Local Legislation improperly Delegates Legislative Authority to Administrative Body • CLAIM: If Rule Generally Makes Land Unprofitable, Can Seek Rezoning (to Avoid Takings Lawsuit)

14. Local Administrative Authority • Handles/Adjudicates Specific Requests & Disputes • CLAIM: Exercises Discretion Not Given by Statutes/Ordinances • CLAIM: Acts in Ways Inconsistent with Statutes/Ordinances • Investigates/Creates Administrative Record to Support Decisions • CLAIM: Insufficient Record to Review • CLAIM: Findings Don’t Support Result • CLAIM: Evidence Doesn’t Support Findings

15. Chapter 3: Selected Topics in Zoning: Flexibility Devices #1: Variances

16. Tension between efficiency/fairness of requiring municipality to adhere to Comprehensive Plan and its need for flexibility to deal with changing times or special circumstances. • DQ3.14: Once a municipality sets up a comprehensive plan, why should it allow variances at all? • Justice in indiv case/peculiar circumstancess:undulyharmful • Make sure lot is not worthless (policy re alienability/utilization of land; avoid uinconstitutional Taking) • Deal w changing times

17. Tension between efficiency/fairness of requiring municipality to adhere to Comprehensive Plan and its need for flexibility to deal with changing times or special circumstances. • Municipalities Use Several Mechanisms to Gain Flexibility • Our Coverage • Variances (One-Time Exception) • Special Exceptions (Exceptions if Built in Criteria Met) • Non-Conforming Uses (Rules re Incompatible Pre-Existing Uses)

18. TOPANGA • 28 Acres zoned for light agriculture and single family residences • 1 acre min lot size • Variance requested to construct 93 space mobile home park • ZgBdrecommended & LA County regional planning committee approved

19. 3.14 In cases like Topanga wherethe landowner requests a use variance what are the interests of the municipality?

20. 3.14 In cases like Topanga wherethe landowner requests a use variance, interests of the municipality include: • Efficiency/Easier to administer if stick with Comprehensive Plan • Uniformity of treatment • Property Values/Tax Base (note that LA Countytyless concerned w small change than, e,g., Belle Terre or Euclid) • BUT: no interest in lot being worthless Interests of the neighbors?

21. 3.14 In cases like Topanga wherethe landowner requests a use variance, interests of the neighbors include: • Direct interest in harms from unwanted use • Property values generally • Reliance interest (court describes as likew a contract)

22. 3.15 With Non-Use Variances, difference in interests largely Q of degree. i) Changes in USE have bigger impact & n-bors more likely to rely. Non-use regsmostly affect only nearest neighbors and small differences may not be very apparent. ii) Much less likely to really need a particular use to make property profitable; as opposed to the kinds of adjustmentas at stake in Commons  Easier Standards for granting non-use

23. 3.15 In footnote 5 in Topanga, the court tells us that California subsequently banned use variances. Was that a good idea?

24. 3.16 Both Topanga & Commons insist that zoning boards ruling on variances create a detailed record. Reasons in Topanga: • Procedural • Need to give parties notice of reasons so can decide whether to appeal • Need to give reviewing ct record to work with, so can see reasoning • Force decision-maker to articulate logic: minimizes likelihood of arbitrary acts • Public relations function: show parties that decision-making is careful, reasoned, and equitable. • Substantive • Protect limited role of variances in z scheme • Protect reliance interests of neighbors

25. 3.16 Both Topanga & Commons insist that zoning boards ruling on variances create a detailed record. Possible Unarticulated Reasons? • Note CalSCtsays if zoning board makes findings, courts give deference on review 3.16. What is the significance of the practice the court disapproves in footnote 16?

26. 3.16. What is the significance of the practice the court disapproves in footnote 16? Simply repeating statutory language as finding: Statute: For a variance, applicant “must show substantial hardship & no harm to the Z plan” Z Board: “We find substantial hardship & no harm to the Z plan” Exactly what Z Board did in Commons: NJSCt spanks both Board & Claimant (for vague proposal) NOTE for your own legal work: Repeating standard isn’t analysis!!

27. COMMONS • Lot zoned residence only • Frontage Reqmt – 75’ (30 in fact) • Minimum Lot Area Reqmt = 7500 sqft (5190 in fact) • Variance requested to construct house on existing lot • ZgBd denied & state courts affirmed

28. 3.17. Most states have some hardship requirements to get a variance. Commons requires “exceptional & undue hardship,” which means (at least )that no effective use can be made of property absent the variance. • Note that you are not entitled to the most profitable use. • What is the relevance of “self-inflicted” harm? • Of attempts to buy or sell land? • What was the evidence of hardship in Commons?

29. What was the evidence of hardship in Commons? • Can’t build at all w/o variance. • Not Self-inflicted: lot in present configuration when Z passed • Tried to avoid problem with transactions: • Tried to purchase strip to make bigger • Tried to sell lot • Evidence couldn’t reach reasonable agreements • Reversal b/c BdAdj said “no evidence of hardship;” clearly untrue

30. 3.18 Comparing Tests: Differences • NJ: Need “exceptional & undue hardship,” which means (at least )vthatno effective use can be made of property absent the variance & not self-inflicted • Cal. Gov’t Code §65906. Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….” • LA County: Need“practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance.”

31. 3.19 Application in Topanga • Cal. Gov’t Code §65906. Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….” • Why were the administrative findings insufficient to support this test? • Why does the CALSct suggest a large lot is unlikely to meet the standard?

32. 3.19 Application in Topanga • Cal. Gov’t Code §65906. Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….” • Why were the administrative findings insufficient to support this test? • Nothing on differences from other lots in the zone • Why does the CalSct suggest a large lot is unlikely to meet the standard? • Unlikely to be unrepresentative of zone • Also too big a change to overall Z

33. 3.19 Application in Topanga • Cal. Gov’t Code §65906. Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….” • Why doesn’t the hardship claim of significantly reduced profitability meet the test? • What point is the court making in footnote 22?