Aesthetic Zoning and Property Values

1. Property II: Class #20Monday 10/29/18Power Point PresentationNational Cat Day &National Oatmeal Day

2. Music to Accompany AndersonMelissa Etheridge, Yes I Am(1993) featuring “Come to My [type of] Window” MY BAD: CONFLICTING INFO RE REVIEW PROBLEM 3E v. 3F • Course Page said 3E (Changed this morning) • Slide in Class correctly said 3F • Detailed Instructions re Issues fit 3F, not 3E So we’ll do 4.01 & 4.02 before Review Problem, then start it but finish on Wednesday

3. Chapter 3: Selected Topics in Zoning: Aesthetic Zoning (& Beyond)

4. Application to build single family house in form of pyramid; Meets all technical Z reqmts except not approved by Architectural Board b/c of design • High Property Values & Traditional Types of Houses in Neighborhood • Claimant Makes Several Legal Claims re Aesthetic Zoning in Mo. • Unauthorized by Enabling Statute (Last Time) • Unreasonable exercise of police power b/c arbitrary • Improper delegation of authority to Arch Bd (includes vagueness) • All three claims resolved with reference to property values & consistency with neighborhood

5. Court holds the zoning at issue was not arbitrary/ was within the Police Powers (again “welfare”) • Seems to use rational basis • Considers PV so not entirely based on aesthetics • Aesthetics w/in sense of general welfare anyway: “The beauty of a fashionable residence neighborhood in a city is for the comfort and happiness of the residents, and it sustains in a general way the value of property in the neighborhood.” (quoting Louisiana case). • Split among states on this. (NJ in Commons says OK). We’ll come back to.

6. 3.36. Court holds ordinance was not an improper delegation of legislative authority (essentially not too vague). • Procedural Protection: Requires Fact-Finding & Gives Appeal • Substantively: • Tied to character of n-hood  “conformity w surrounding structures” • Tied to PV “Detrimental to the stability of value” • Note: Not simply “Is it really ugly?” • BUT: Approves delegation language (top Z60) that was rejected in Cope Comfortable with This?

7. 3.37. In what ways are the interests of the municipality and of the neighbors in Anderson similar to those in Stoyanoff? In what ways are they different?

8. 3.38. Vagueness  Clarity • Issaquah (Court clearly writes w no sympathy for City/Board) • Bad Statute: • Harmonious; • Appropriate proportions • Relationship to the natural setting of the valley and surrounding mountains. • Monotony of design shall be avoided. • But could be helped by Good Board, translating into consistent concrete Instructions

9. 3.38. Vagueness  Clarity • Issaquah • Bad Statute: • Bad Board: • Requires compatability with “image of Issaquah” and the feel of Gilman Blvd. • Inconsistent application in existing buildings • Inconsistent comments on proposal • Findings contain no specifics on what was wrong with proposal

10. 3.38. Vagueness  Clarity • LaDue Ordinance may be ba little less vague • Tied to property values • Much clearer that relevant “compatibility” is just with neighboring buildings. • In specific case, much clearer that pyramid was very different than everything else in area & city had evidence of negative effect on property values • Can make both schemes better with more specifics as suggested in footnotes.

11. 3.39: Underlying Policy Should municipalities be allowed to engage in aesthetic zoning absent any connection to property values? Should municipalities be allowed to zone merely to increase property values absent any connection to health or safety? (e.g., social class indicators like pick-up trucks v. SUVs)

12. 3.40: Zoning Generally When a municipality regulates heavily to create and support upscale residential neighborhoods, what sorts of externalities might be created? (Can see as reverse socialism: heavy regulation to create/maintain wealth for upper middle class (and up))

13. 3.40: Externalities of extensive Z for upscale residential n-hoodsinclude • People in many jobs priced out of n-hood (UM employees & Coral Gables • Longer commutes = traffic/pollution (& higher costs for lower income folks) • Economic segregation (often means race/ethnicity as well) • Changes demographics of local electorate • In extreme cases can have displacement as PV rise with resulting dislocation costs (per Fleming) • Helps create & maintain inequality among public schools • Uniformity Tending to Long-Established Styles (Maybe uninspiring or stifling creativity) Do the benefits of this kind of zoning outweigh or justyify these externalities?

14. 3.41: Zoning v. HOA v. Nuisance Especially those of us who grew up in suburbs take Z for granted, so it’s important to remember that: • Z is big interference w operation of free market. HOA and other forms of servitudes are much closer to free market devices to regulate land use. • Although Z is more democratic than HOA/Nuis, local govts often very imperfect as participatory democracy (low participation rate; imperfect info; relatively high rate of corruption or responsiveness to wealthy donors).

15. 3.41: Zoning v. HOA v. Nuisance • Relative strengths of 3 approaches for you on your own. • Can use in a policy Q. E.g., re a zoning ordinance • By arguing that issue in Q better left to HOAs (because …); OR • By arguing Z necessary for issue in Q b/c nuisance law can’t handle it well (because …). QUESTIONS?

16. Music to Accompany AndersonMelissa Etheridge, Yes I Am(1993) featuring “Come to My [type of] Window” Class Already Missed (10/10)  1 on 1 Meetings Pre-Exam Important Upcoming Dates • Thu 11/1: 4th Written Assignment Due @ 8 p.m. (Mixed Q M2) • Fri 11/2: Fajer Exam Workshop Room E352 @ 1-2:20 p.m.

17. Written Submission #4: Due Thursday 11/1 @8pm • One 7-Page Question: Lawyering Question M2 • Specific Prep re Lawyering Qs • We’ve Done Several w Posted Comments/Models or Slides • We’ll Do Rev Prob 3F Today  Wednesday • I’ll Post Comments/Models on 3E & 3F • Handout with Presentation/Editing Tips Specific to Lawyering Qs • QUESTIONS?

18. Chapter 4: DISABILITY ACCOMMODATIONS

19. Chapter 4:Disability Accommodations DQ4.01: General Intro (All except Friedhoff) What kinds of problems relating to housing do you imagine persons with disabilities might face? (Try to identify problems that might be associated with at least three different types of disabilities.)

20. Chapter 4:Disability Accommodations DQ4.01: General Intro (All except Friedhoff) General Types of Problems (Can do many specifics for each) Include (i) Prejudice; (ii) Physical Access; (iii) Ability to Meet Financial & Other Requirements Types of Disabilities include (i) Physical Impairments; Mental Impairments; (iii) Chronic Disease I’ll give you a write-up with good responses from Housing Discrimination classes.

21. Chapter 4:Disability Accommodations DQ4.02: Challenges to Fact Qs in Shapiro • Deferential Legal Standard for Reviewing Findings of Fact (FoF) by Trial Judge = “Clearly Erroneous” • Means: After reviewing whole record, reviewing court “is left with the definite and firm conviction that a mistake has been committed.”)

22. Chapter 4:Disability Accommodations DQ4.02: Challenges to Fact Qs in Shapiro • Standard of Review = “Clearly Erroneous” • Evidence on Each Side? Supports Clear Error? • FoF that P is Disabled • FoF that Accommodation is Necessary • Medical Alternative • Parking Alternative 4.02 In Shapiro, the defendant challenged a number of the trial court’s findings of fact. What were these challenges and how did the court of appeals respond? Why might a lawyer recommend to a client that they not raise these issues on appeal? Is there any harm in trying?

23. Chapter 4:Disability Accommodations DQ4.02: Challenges to Fact Qs in Shapiro • Why might a lawyer recommend to a client that they not raise these issues on appeal? • Is there any harm in trying?

24. Review Problem 3F Lawyering

25. li • S inherits house from Great Aunt A • House built in wooded area almost 50 years ago w rooms for medical practice • Now in residential neighborhood • S wants to expand/renovate to use as home & dental practice w apt for key employee • A’s atty’s give her warning re possible zoning issues (Generally: these should be primary focus) • Apt for Employee • Setback Requirements • Continuation of Medical Practice (NCU)

26. li • Apartment for Employee • Z Might Treat as Separate Living Unit (so Not Single-Family) • Minor Issue because we didn’t specifically cover • Check S plans v. Rules in Zone • Might look for ways to redo plans to make compliant • Might be Conflict with Rules for What is “Family.” Steps?

27. li • Apartment for Employee • Might be Conflict with Rules for What is “Family.” Steps include • Check Z: Residence Only? Single-Family? Definition of Family? • Who else will live w S? (If nobody else now, more likely OK) • If conflict between Z & S plans? Steps? • State law? • Federal law?

28. li • Apartment for Employee • If conflict between Z & S plans? Steps include: • Check if state law limits Z re “family” (State const or public policy) • Act like “family”: Will employee share meals etc. w S & family • State Rt to Privacy? Include employees? • Check Federal Law • Interpretations of Belle Terre/Moore in fed’l circuit? Elsewhere? • Further explanation of line between • Caselaw re living with employee (check Nanny or Housekeeper?)