Hobby Lobby as a Land Use Case

"Hobby Lobby as a Land Use Case: Charting For-Profit RLUIPA Claims" 
NYU Journal of Law & Liberty, Vol. 10, No. 2, 2016, Forthcoming

ROSS CAMPBELL, New York University (NYU), School of Law, Students
Email: rrc323@nyu.edu

Hobby Lobby has provoked much discussion. However, scarce attention has been given to its potential impact on RLUIPA litigation, particularly, the novel possibility of for-profit corporations asserting claims under this statute. There is little reason to suppose that Justice Alito's opinion on the scope of RFRA would not similarly apply to RLUIPA. Therefore, closely-held businesses, from big-box franchises to mom-and-pop shops, may be able to invoke federal protection against zoning decisions that burden their owner's religious exercise. How this complicates the balance of American federalism — by increasing federal interference with traditional state prerogatives over zoning, yet also generating new dialogue on the scope of individual rights — should be discussed and revealed in time.

You Are Invited to See a Legal Theatrical Play

As you may have guessed, I love both the law and the theatre. And what could be better than a theatrical play about Justice Scalia and his debates in chambers with one of his law clerks who disagrees with him about practically everything. And yet they respect each other.

So, I am showing a streaming version of The Originalist for my Con Law Seminar this Thursday at 4:30 PM in Room 113. I saw this play performed live (from the front row) in DC, and I have also viewed the streaming version. Both were excellent.

 With the permission of my seminar class, you (my Property class) are invited to attend. It will start at 4:30 PM on Thursday February 8 in Room 113.

This is optional of course. Just something to attend if you think you might enjoy this.

Handouts Available

The Handouts for Assignment 10. (RLUIPA Handouts 8, 8A and 8B) are available in the Handout Racks near the South Side Faculty Suite. We will not get to these materials until next Thursday or Friday. So, no hurry.

Notice I have also deleted from Assignment 10 the link to the Hobby Lobby case--although it deals with much the same tests under RFRA that we will focus on under RLUIPA, the opinions are just too long and I have decided not to get you bogged down there.

Elvis Is In The Building

I conquered my fear of insurance companies and made it to the Law School.

See you at 12:20 for either Poletown Lives or Blue Hawaii starring Elvis.

Mid-year Exam Results: Fall 2017

 

 

Mid-year Exam Results

Here is the breakdown for the Midyear Exercise:

0 Students scored 100 points

4 Students scored 96 points

2 Students scored 92 points

11 Students scored 88 points

 5 Students scored 84 points

 2 Students scored 80 points

 5 Students scored 76 points

 1 Student scored 72 points

 3 Students scored 68 points

 2 Students scored 64

 4 Students scored 60 points

 

 2 Students scored 56 points

 2 Students scored 52 Points
 

2  Students scored 48 Points

2  Students scored 44 Points

The test median was 80 points.

Pay no attention to the arbitrary "quartiles."  They are meaningless. Totally meaningless. The only thing that "counts" is the number of points you scored out of a possible 100 points.

Akhil Amar's Lane Lecture Friday October 20

Instead of our regular class on Friday October 20, I am assigning you to attend the Lane Lecture by Professor Akhil Amar,  on Friday October 20 at noon in the auditorium.  The title of his talk is “The Constitution Today.”

We will be spending a significant amount of time studying the constitutional law of Property next semester. Prof. Amar is one of the major Con Law scholars in America, and I want to make sure you have an opportunity to hear what he has to say to us.

Attending this lecture is in lieu of our normal class, but I will show up to class at the normal time to discuss your questions and comments on Prof. Amar's lecture.

Here is some more about Prof. Amar's Lecture (from dean Berger):

"This Friday (October 20) Professor Akhil Amar from Yale Law School will be delivering the Lane Lecture at noon in the auditorium.  Professor Amar, who is Sterling Professor of Law and Political Science at Yale University, is one of the leading constitutional scholars in the country.   

 

His talk is entitled “The Constitution Today.”  Here is a brief summary:

 

For the first time in our lifetime—and for one of the few times in modern history—all four major federal institutions of power were in play in the last election.   When the two national conventions met in 2016, Democrats had a real chance to win control of the House, Senate, Presidency, and Supreme Court.  Instead, the Republicans swept the field and now control all four institutions, even though Donald Trump lost the (legally irrelevant) national popular presidential vote.  In this Lane Lecture, based in part on his recently released book, The Constitution Today, Yale Law Professor Akhil Reed Amar will discuss the constitutional significance of all this and will touch upon a wide range of modern cases and controversies—from gun control to gay rights, from the electoral college to campaign finance to filibuster reform. Come prepared to ask any question you like about America’s constitutional system—past, present, and future."

 

Hugh Hefner's Life Estate Ends

See link

The Wall Street Journal reports that Hugh Hefner sold the iconic Playboy Mansion for $200 million, but retained a life estate.

The sale comes with one unusual condition: Mr. Hefner, 90 years old, will be able to remain in the home as long as he lives. After Mr. Hefner’s tenancy ends, Mr. Metropoulos intends to connect the two estates into a combined 7.3-acre compound, a representative for him said.

Hefner’s wife and other heirs will take nothing. When he dies, the purchaser will receive the house in fee simple.

Class Schedule Update--We Played Two for Mr. Cub, Ernie Banks

Now you get to vote on which class to cancel to compensate for the doubleheader we played last Friday.

So let's vote.

Today's Class

1. We are having a doubleheader today--Class starts at Noon and ends at about 2 PM.
2. Please feel free to bring your lunch or popcorn or candy.
3. Be prepared to discuss the Popov case
4. Bring your baseball glove if you wish

Two Things

1. We will have a pre-exam Q & A session on Thursday April 27 (t5his Thursday) from Noon until whenever in Room 113.

2. For those of you who are taking my Summer Con Law II class, the Assignments will be available at my Con Law class blog--Con Law Blog

Exam Info

The final exam is a 3 hour closed book examination.

No written or printed or digital or other materials allowed.

The essay portion of the exam must be answered on a computer using Extegrity Exam 4 "Closed Mode" software which you must have previously downloaded.

FYI: Nebraska RLUIPA Case Settled

US Justice Department just settled two significant RLUIPA cases including one out of Norfolk:

Justice Department Closes Investigation After Zoning Change Allows Church to Move Into New Facility

On February 13, the Justice Department closed its RLUIPA investigation of the City of Norfolk, Nebraska, after the city amended its zoning code to treat places of worship equally with various nonreligious uses.  The Department had opened the investigation after the city denied Our Savior Lutheran Church permission to move into a building it had purchased in an industrial zone.
In the fall of 2015, Our Savior Lutheran contracted to purchase a 60,000-square-foot former warehouse in an industrial zone in Norfolk.  The church had outgrown facilities it had occupied in Norfolk since the 1960s.  The city told the church, however, that it could not move into the site because it was a church, and churches are not permitted in the industrial zone.  However, the city permits various nonreligious assemblies operate as of right in the industrial zone, including business and civic associations, labor unions, daycare centers, athletic clubs, dance halls, and movie theaters.
In October 2016, the Department of Justice opened an investigation of the City of Norfolk under RLUIPA.  Section 2(b)(1) of RLUIPA states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 
On December 20, the City Council passed an ordinance that made several changes to the City’s zoning laws.  Among other things, the ordinance amended the land use matrix so that religious assemblies are now permitted as of right in the I-1 zoning district.  In light of these changes, Our Savior Lutheran Church is moving ahead with its plans to renovate the distribution warehouse and, after reviewing the changes, the Department closed its investigation. 

And another involving a mosque:

Justice Department and City Resolve RLUIPA Suit Over Mosque Denial

On March 10, a federal court in Michigan approved a settlement of the United States’ suit against the City of Sterling Heights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which alleged that the city illegally denied a mosque approval to build in the city.
The United States had filed suit on December 15 alleging that the city discriminated against the American Islamic Community Center (AICC) on the basis of religion when it denied AICC zoning approval for a mosque. The suit also alleged that the denial imposed a “substantial burden” on AICC’s religious exercise in violation of RLUIPA. The AICC, currently located in Madison Heights, Michigan, sought the Sterling Heights location because it is more centrally located for its members and its current space has become too small to accommodate its worship, educational and social needs.
On the day the settlement was announced, Acting Assistant Attorney General Tom Wheeler noted that “Federal law protects the right of faith communities to build places of worship without discrimination or unreasonable burdens on their religious exercise.  We commend the city of Sterling Heights for agreeing to approve the AICC’s mosque, so that it can serve its members and contribute to the surrounding community.”
RLUIPA provides a number of protections for places of worship, religious schools, and other religious uses of land from discriminatory or unreasonable zoning restrictions.  Further information about RLUIPA, including reports on its enforcement and Questions and Answers about its various provisions, may be found at the Civil Rights Division Housing and Civil Enforcement Section’s RLUIPA page.

Link

Class Cancellations

                                              My Chicago Descendant Celebrates a Pennant


             
Notice that this class meets for a full 60-minute hour.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). This will require us to cancel seven (7) classes during the Semester without the need for make-up sessions. Plus, with our extra class this week for the Poletown Documentary, we need to cancel 8 classes.


I am taking Con Law on the road to a number of law schools this Semester, so some of our cancellations will be used for these trips. Here are some dates that we will be cancelling class:


1. Wednesday Jan 25
2. Thursday Jan 26
3. Wednesday Feb 22
4. Wednesday March 8
5. Friday March 17 (per class vote)
6. Wednesday March 29
7. Wednesday April 5 (probably)
8. Thursday April 6

I just wanted to give you an advance heads up.

Schedule Adjustment

The Dean's Office needs Room 113 on Friday March 3 for a Law College Event.

So there will be no class on Friday March 3.

Instead, we will have a doubleheader on Thursday March 2: from 1:15 PM to 3:15 PM.

Sorry. Not my call.

Kanye West on Economic Liberty

@kanyewest recently tweeted a profound insight:

"What is your definition of true freedom? There is no true freedom without economic freedom."

He got over 25,000 likes.

 

SCOTUS Grants Cert in Important Takings Case

                                                    Art by Josh Duncan


By the way, Justice Scalia's death may lead to a 4 to 4 vote in  Murr v. Wisconsin, the denominator case I believe some of you are working on.. A tie vote in SCOTUS would result in affirming the state court decision in the case (but it would not be considered a SCOTUS precedent). That means the property owners would lose in this particular case, and the denominator issue would remain unresolved until a future case arises.



I am sure many of you are aware of this, but here are some links:

1. ABA Journal

2. PLF Press release

And here is a substantial quote from the ABA article:

Four siblings who own a vacation cabin by Lake St. Croix in Wisconsin will have their takings case heard by the U.S. Supreme Court.

The court agreed to hear the case earlier this month, the Milwaukee Journal Sentinel reports. The siblings are represented by the Pacific Legal Foundation.

The cabin and lot were purchased by the siblings’ parents in the name of the family business in 1960, according to the cert petition (PDF). The couple bought an adjacent land parcel in their own names in 1963 that, at the time, was sufficient for development. Zoning changes enacted in 1975 barred development on the adjacent parcel because of its size, but a grandfather clause created an exception for parcels that have separate ownership from adjoining land.

Because the siblings own both parcels, the second parcel is not eligible for development under the grandfather clause. The ordinance also prevents the siblings from selling the adjacent lot unless it is combined with the cabin lot.

The siblings claim the adjacent lot is the only relevant parcel for takings purposes, while the government says the combined lots are the relevant parcel.

PLF principal attorney John Groen commented on the case in a press release.

“We’re challenging a practice that is all too common among land use regulators, where they tell a landowner she can’t use her property, based on the excuse that she also happens to own a neighboring parcel,” Groen said. “By accepting this case, the Supreme Court has an opportunity to make it clear that government can’t cut off landowners’ constitutional rights based on how much land they own.”

RLUIPA: Recent Cases

 We will be studying the Religious Land Use and Institutionalized Persons Act, a modern civil rights law protecting religious land users from restrictive and often discriminatory land use laws. Here are some recent cases from the ReligionClause blog:

Suit Challenges Zoning Refusal For Christian School

On Tuesday, a Christian school in Upper Arlington, Ohio filed suit in federal court claiming violations of RLUIPA, of the 1st and 14th Amendments and of Ohio's constitution.  The case stems from the city's rejection of the school's attempt to apply for zoning approval of a new site on which the school planned to consolidate its four separate campuses. The complaint (full text) in Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (SD OH, filed 1/4/2011), argues that other similar or identical uses-- such as child day care centers and hotels-- are allowed by the city's zoning rules. In its press release announcing the filing of the lawsuit, Alliance Defense Fund said: "A city’s zoning code cannot give preferential treatment to non-religious institutions that function similarly to a Christian school...."

Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials

Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.

Michigan City Settles RLUIPA Suit, Lets Church Move Into Commercial Area

The Oakland County (MI) Daily Tribune reports that a Michigan federal district court last Friday signed a consent order under which the city of Hazel Park, Michigan settled a RLUIPA zoning lawsuit filed against it by the Salvation Temple that wanted to move into a building, but was denied a permit under an ordinance passed in 2005 that bars religious institutions in areas zoned commercial or industrial. (See prior posting.) Under the agreement, the church will be permitted to move into a building that was used as a banquet hall but has been vacant since 2002.  The church will bring the building up to code and will pay back taxes before the property becomes tax exempt. The building, on a triangular parcel of land near two interstates, was unlikely to find a commercial buyer. City officials say there was no economic benefit in their fighting the lawsuit. The settlement did not rule on the validity of the zoning ordinance which apparently effectively keeps churches out of Hazel Park because there is no residentially zoned property large enough to accommodate a church and required parking.

Hobby Lobby Case--Key Statutory Provisions from RFRA

 42 USC sect 2000bb-1

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). 

(b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest

42 USC sect 2000cc-5

(7) Religious exercise

(A) In general

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

 42 USC sect 2000cc-3

(g) Broad construction

This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.

1 USC 1 (The Dictionary Act)

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

Critics of RLUIPA

A few years ago, I was a guest blogger at ProprtyProf blog. Here is a post I blogged over there:

Permit me to introduce you to RLUIPA's most prolific critic, Prof. Marci Hamilton. In her book, God vs. The Gavel: Religion and the Rule of Law, Prof. Hamilton devotes chapter 4 to "Religious Land Use and Residential Neighborhoods." Here are brief excerpts that give you the flavor of Marci's disdain for RLUIPA: "RLUIPA has turned neighbor against neighbor and is one of the most religiously divisive laws ever enacted in the United States...The churches have an uncanny ability to make standard, fair practices sound inherently prejudiced." I disagree with most of her conclusions about religious liberty, but she raises some interesting issues.

Marci also has some articles that are available online including:

--STRUGGLING WITH CHURCHES AS NEIGHBORS:Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby (link)
---How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods (link)
Here is a money excerpt from the American Dream article:

"Currently, homeowners trying to retain the residential character of their neighborhoods are finding RLUIPA an enemy to their dreams. Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. RLUIPA is the classic siren song, capable of persuading any religious landowner that they need not be good neighbors and that they have "rights" to choose location, size, and use at whim. That siren song has gone platinum as groups like the Becket Fund have funded federal litigation, making the religious landowners' decision to ignore the pleas of their neighbors in favor of federal court easier than ever. (Of course, Congress is largely to blame for such shenanigans because of its ill-advised decision to provide attorneys' fees for lawyers taking on RLUIPA claims.)
In one case, a church seeks to add a fourth story in a residential neighborhood zoned for two stories. In another, a private homeowner asserts the right to hold lengthy prayer meetings that exceed occupancy requirements every weekend. In a third, the church seeks a "small" addition of 30,000 square feet.
In a fourth, a synagogue seeks to convert a piece of property previously used to house a quiet convent, and then a monastery, into a lively complex offering services, education, and a catering hall for hundreds of families. In a fifth case, a quickly constructed 8000 square foot shul is overshadowing its 3000 square foot residential neighbors.
Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements."

Powerful stuff.

Here is more.

The October 8, 2006 New York Times has a lengthy article ("As Exemptions Grow, Religion Outweighs Regulation") on religious exemptions from the Regulatory State that contains an extensive discussion of religious land use and RLUIPA. (Thanks to the Religion Clause blog for the pointer)

By the way, the title of the New York Times article is misleading. RLUIPA and other religious exemptions from restrictive laws advance religious liberty, not religion. This is a basic concept that I try to teach my First Amendment students when studying the Establishment Clause--the EC, as interpreted by the Supreme Court in the Lemon test, forbids laws that advance religion, not laws that advance religious liberty. Notice what a difference it makes to rewrite the title to that NYT article as "As Exemptions Grow, Religious Liberty Outweighs Regulation."

Handouts Available in Handout Racks

The RLUIPA handouts are available in the Handout racks outside the South Faculty suites.

We will get to them next week.

For Friday Jan 27

Make sure you read the Lucas case for our next class (Friday Jan.  27)

6. Lucas (casebook p. 836-849)

Double-header on Thursday Jan. 12

We will be meeting from 12:15 to 2:15 on this Thursday (January 12).

We will watch the documentary on eminent domain (Poletown) and then discuss the "public use" requirement of the Takings Clause.

As Mr. Cub, Ernie Banks liked to say, "let's play two."

Mid-year Exam Results

Here is the breakdown for the Midyear Exercise:

2 Students scored 100 points

3 Students scored 96 points

 

13 Students scored 92 points

5 Students scored 88 points

6 Students scored 84 points

7 Students scored 80 points

4 Students scored 76 points

4 Students scored 72 points

4 Students scored 68 points

3 Students scored 64

1 Student scored 60 points

 

6 Students scored 56 points

2 Students scored 52 Points
 

1 Student scored 48 Points

1 Student scored 32 points

1 Student scored 28 points

1 Student scored 24 points
 

The test median was 80 points.  Pay no attention to the arbitrary "quartiles."  They are meaningless.

Q & A Session--Saturday December 10 at 1 PM

I have scheduled a Q & A session, before the mid-year exam, on Saturday December 10 at 1 PM in Room 113.

I hope this time works well for most of you.

My Sincere and Abject Apologies

I showed up today (Friday December 2) for an optional class review session. I showed up at 2:25 (thinking I was 10 minutes early for the session) only to discover that, since today is Friday rather than Thursday, I should have been there at 1:15.

I can't blame old age for this lapse on my part. I just got the days mixed up.

I was told that only a handful of you showed up. And that most of you did not have questions.

But still, I am very sorry I got the times mixed up.

But there is a real Q & A session scheduled for Saturday Dec. 10 at 1 PM in Room 113.

And I will be there.

Rick Duncan

Eleanor Rigby

The Gotham Times has an article on:

The Lonely Death of George Bell

 It reminds me of our class discussions of "all the lonely people," like Eleanor Rigby, who die intestate and without heirs.

Class Schedule

Just a reminder, as we discussed in class last week, there will be no Property class tomorrow (June 21 2016).

See you in class on Thursday.

Property Exam: Q & A Session

                              Oh, no! I didn't study the Law of Finders and First Possession!



I have scheduled an hour for a Q & A session on the day before the exam.

Time: Tuesday may 3 @ 12:30 to 1:30 PM
Place: Room 113

See you then.

Harriet Tubman

I am delighted that the Treasury has chosen Harriet Tubman--a gun-toting, free-exercise acting, lawbreaking-Christian-rescuer of fugitive slaves. This is a great tribute to a great woman and to a great tradition of religious conscience in the face of laws restricting conduct that is motivated by religious beliefs.

Looking Back on this Year's Property Class

Today is our last Property class.

As I think about this year drawing to a close, I just wanted to express my feelings about how this year's Property course has gone. I really appreciate how much enthusiasm you as a class have maintained as we journeyed together through 6 credit hours of Property Law. Not a class goes by without many of you raising your hand to participate in our discussion and  asking many excellent and thoughtful questions.

My teaching philosophy has always been to try to make even dry and boring material fun to discuss, without skimping on substance and depth of analysis. I also love to challenge the legal reasoning of judges, and lawyers, and legislators, and law professors such as those writing casebooks or the Restatements. I push hard against all legal arguments to help you understand that a legal argument is not over until it is over. And it's never over. As a class, you seem to enjoy that approach and to embrace it with thoughtfulness and joy.

So, anyway...thanks for a great year. I will see you one more time for our pre-final Q & A session..

Cheers, Rick Duncan

Q & A Session

I will try to schedule a Q & A session a day or two before our final examination.

Keep checking the blog for exact time (place will be Room 113 if I can get the room).

Spring 2016 Syllabus and Assignments

   Hannah Duncan Dances "Clara" in Nutcracker 2011

General Information
    This class will meet on Wednesday, Thursday and Friday from 1:15 p.m. until 2:15 p.m. Notice that this class meets for a full 60-minute hour.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). This will require us to cancel seven (7) classes during the Semester without the need for make-up sessions. If it snows in Lincoln, call before coming to class because I will probably cancel class when the roads are bad.

Final Exam and Grading

    The final exam will be a 3-hour, closed-book exam.  It will be cumulative, based upon material covered in both Fall and Spring Semesters.  The final exam will be a combination of perhaps one or two medium to short essay questions, and objective questions.

    Your grade for the course will be based upon your performance on both the mid-term and the final exam.  The mid-term exam counts for 100 points (25%) and the final exam counts for 300 points (75%).

Class Attendance

    Class attendance is required.  I often use problems discussed in class as the clay from which I sculpt exam questions.

Office, Email and Course Blog

    My office is Room 220.  You are welcome to come by any time (Note: right before class is usually not the best time, since I am often busy with final class prep).
  
   My email address is:   rduncan2@unl.edu

    Please check the course blog regularly for class announcements and substantive content.  I will assume you have notice of anything posted on the course blog.  The blog address is: http://hoorayproperty.blogspot.com/

Required Texts:

1. Cribbet, Findley et al, Property: Cases and Materials (9th ed. 2008)(your "Casebook")
2. Stoebuck & Whitman, The Law of Property (3d ed. 2000) (your "Hornbook")


Assignments

Here is the list of assignments for Spring 2016. You are also responsible for material posted on the blog.

For our first class, read assignment I.(1) and then stay one assignment ahead for each class.

I. RLUIPA; Eminent Domain and the Takings Clause


1-2. Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807: Public Use Requirement: Film: Poletown Lives!
3. U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto)
4. Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
5. Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone (Handout)
6. Lucas (casebook p. 836-849)
7. Nollan and Dolan (casebook p. 849-868)
8. Palazzolo (casebook p. 868-879); Tahoe-Sierra (link)
9. HORNE ET AL. v. DEPARTMENT OF AGRICULTURE  (link); casebook p. 879-881

RLUIPA (the Religious Land Use and Institutional Persons Act) is a recent Federal Civil Rights law that protects religious land use--i.e., it is a property law that protects the right of landowners to use their real property for the purpose of religious exercise. The Hobby Lobby case is not a land use case (it is a business property case however), but we will read it because it involves the Supreme Court's interpretation of the meaning of "substantial burden" which is a crucial part of the RLUIPA test).

10. RLUIPA Handouts 8, 8A and 8B; Hobby Lobby (Link)


Note: Although I am not assigning any part of the Cunningham Hornbook that deals with Takings (I think Supreme Court cases speak best for themselves), if you are interested in additional analysis, many of these cases and issues are discussed from p.524-545 of the Hornbook. As always, when reading secondary sources, read them only to the extent that they help you understand issues we discuss in class. To the extent that they raise additional issues, be careful that this "extra knowledge" does not confuse you. You are only responsible for assigned readings and issues we discuss in class or on the blog.

II. Exclusionary Zoning

11. Casebook p. 883-896
12. Casebook p. 897-914



III. The Recording System

13. Casebook p. 1129-1144; Handout 9
14. Casebook p. 1144-1158
15. Casebook p. 1158-1169
16. Casebook p. 1169-1180
17. Casebook p. 1180-1188

I am not "assigning" the Hornbook's coverage of the recording system, but you may wish to read the coverage on pages 869-923 for some helpful background discussion.


IV. Adverse Possession

18. Casebook p.168-191; Hornbook p. 853-869; 898-905


V. Easements, Etc.

19. Casebook p. 559-571; Hornbook p.434-444
20. Casebook p. 571-589; Hornbook p. 444-451
21. Casebook p. 589-593: Hornbook p. 451-469


VI . Real Covenants and Equitable Servitudes

22. Casebook p. 617-628
23.Casebook p. 628-636
24. Casebook p. 636-642
25. Casebook p. 642-652




26. Casebook p. 91-98; 652-661; Re-read Moore case (casebook p. 894-896)
27. Casebook p. 662-672

The relevant material in the Hornbook for Covenants and Equitable Servitudes is found at pages 469-514. I expect you to read these pages, but I have not assigned specific readings for specific classes. Read the relevant sections in chunks, to help you understand the cases as we read them. You might want to read this material through once quickly at the beginning of this unit, and then re-read the material more carefully as it relates to the cases we are discussing for each class. 

Class Cancelled Wednesday March 2

My flight home just got cancelled. I am stuck in Kentuck.

So, no class tomorrow Wednesday  March 2.

Justice Scalia

Justice Scalia R.I.P.

I am brokenhearted by the death of Justice Scalia. He was the greatest Justice of my generation, maybe of all time.

If you have a chance to read something this week, here is a link to an interview with Nino.

Super Bowl Jublia Commercial

I hope you all thought of Nollan & Dolan and "rough proportionality" when you saw the Jublia commercial during the Super Bowl yesterday.

Jublia yes, amputation no (the cure is not proportional to the disease).

Horne v. Dept of Agriculture--Physical Takings of Personal Property

When the government physically takes personal property--such as a person's raisin crop--is this a taking that requires just comepnsation?

From SCOTUSblog:

Holding: The Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property. In this case, any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking; it does not mean the raisins have not been appropriated for government use. Nor can the government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The per se rule of Loretto (a physical taking is a taking no matter how small) applies both to real property (such as an apartment building) and personal property (such as raisins or corn or automobiles).

"The Government has a categorical duty to pay just compensation wjhen it takes your car, just as when it takes your home." Majority opinion at 5. Chief Justice Roberts says this principle goes back "at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings." Id.

May the government condition your privilege to participate in the raisin market on your willingness to transfer 47% of your crop to the government? May the government condition your right to participate in the landlord-tenant rental market on your willingness to allow the cable tv company to run its cables on your building?

Answer no. "'Let them sell wine'" is probably not much more comforting to raisin growers than similar laws have been to others throughout history." Id. at 12. The government can regulate the raisin industry, but it may not require raisin producers to transfer title to part of their crop as a condition to participating in the free market for raisins. This is a physical taking, not an exaction that will be upheld so longs as proportional.

{Ask yourselves is this case more like Lorretto or more like Nollan/Dolan?}

Handout Available

The Keystone Coal case handout is now available in the handout racks outside the South Faculty office suite.

For Wednesday Jan. 20

We will finish Assignment 3 and move into Assignment 4 (Mahon and Penn Central).

The Absent-minded Professor Thanks You

Again, I wanted to thank you for being so graceful in response to my mixing-up our early-scheduled class today.

As a small token of my appreciation, I will offer you an opportunity to choose two of the eight classes we are required to cancel this semester (due to our 60-minute classes and today's double class: 7 plus 1 equals 8).

Think about which two Fridays you would like to have off, and I will take a vote tomorrow and honor your choices.

Detroit in Ruins

By the way, after studying Poletown some of you may be interested in this post from the PropertyProf blog about the ruins of Detroit:

Detroit in Ruins

Not the most cheerful way to ring in the new year, but the Guardian just published a series of provocative photographs of decaying cultural landmarks in Detroit.  A bitter reminder that Detroit's problems started long before the current economic troubles.  You can find the photos here.
Tanya Marsh

Those pictures of Detroit's ruined landmarks is worth viewing.

Thursday Jan. 14--Let's Play Two!

Tomorrow, Thursday Jan 14, we will have a double session of Property (from 12:15 to 2:15) in order to view a wonderful documentary on economic development takings such as in the Kelo case.

So tomorrow:

Room 113 from 12:15 to 2:15.

Q & A Session

I have reserved  Room 113 for a Q & A session on Tuesday Dec. 15 at Noon.

This is optional, but I will be there to try to answer your questions.

Spread the word to your classmates.

12 Days of Finals

 
So, my daughter, Becca, is taking her 1L finals at Cornell, and she came up with the following parody that I thought I would share with y'all:


On the twelfth day of finals Cornell Law gave to meee-
Twelve gunners gunning,
Eleven coughers coughing,
Ten friends a weeping,
Nine 3L's laughing,
Eight profs a plotting
Seven clocks a ticking
Six sections freaking
Fiiiiiive cell phones riiiiiiiing-
Four failing grades,
Three lattes,
Two tired eyes,
And a dose of realityyyyy

Class Cancellations

                                           My Favorite House On Sandbridge Beach



Remember--On Friday December 4, I will be in class (usual time, usual place) for a Q & A session. This is optional, but it is a good opportunity to clear up any confusion you may have going into the mid-year exam.

Due to our 60-minute class schedule, we are required to cancel 7 classes.

Here are the cancellations so far:

1 & 2. Wednesday Sept. 23 and Thursday Sept. 24 (I will be speaking at Indiana Law, Notre Dame Law & U Mich Law)
3. Wednesday October 28 (speaking at law schools in Georgia and Florida)
4. Wednesday November 11 (speaking at Wayne State Law in Detroit)
5. Wednesday November 18 (speaking at Florida State Law)
6-7.  Dec. 2 & 3

December 4 is last day of classes

Rent Control Bad for Landlords, Worse for Tenants?

Gotham Times

Reason.com

SF Chronicle

Class Re-scheduled Friday Nov. 6

In lieu of meeting at our regular time and regular place next Friday Nov. 6, we will instead meet in the Auditorium at Noon for the Lane Foundation Lecture, which this year is a Property lecture given by Prof. John Langbein of Yale Law School. Prof. Langbein's topic is an advanced topic on the "Nonprobate Revolution" of family wealth transmission. It should be of great interest to students interested in Property, Wills & Trusts, and the general practice of law. Here is more information:

 Prof. John Langbein

Lane Lecture Friday Nov. 6 Noon Auditorium

The Nonprobate Revolution: Privatizing Family Wealth Transfer in the United States.   Probate, the state-operated system of family wealth transmission, has been marginalized in contemporary American practice by the rise of free-market competitors in the financial services industry.  Today, it is banks, mutual fund companies, brokerage houses, insurance companies, and retirement plan operators who handle most intergenerational wealth transfer.   Professor Langbein will speak about the causes and extent of the nonprobate revolution, and about some worrisome drawbacks that are emerging as this new system of wealth transfer takes hold.

Handouts Available

The Handouts that have been assigned are available in the Handout Racks near the South Faculty suite on the second floor of the library.

Historic Baseballs and their First Possessors in the News

So David Ortiz just hit his 500th home run, not a record but a great milestone. The fan who caught the ball was recently praised in a Tweet by Gordon Edes, a baseball writer who covers the Red Sox:

"The fan who returned David Ortiz's 500th HR ball impressed Sox and Ortiz.by making no extravagant demands. A few photos, souvenirs, is all."

By the way, here is a humorous revision of Take Me Out To The Ball Game"

  Dick Flavin’s “Red Sox Rhymes” gives us one gem after another. Here’s one:

“Take me out to the ballgame.
First, let’s stop at the bank.
I’ll need a mortgage so I can pay.
Parking the car is another outlay.
And you can pay big bucks for a hot dog,
The cost of beer is insane.
For it’s Oh my! Prices high
At the old ballgame.”

No Property Class Today--Friday Sept. 4

Remember, because we had a double class on Wednesday for the documentary, we are not meeting today.

Enjoy your longer weekend!

Doubleheader Next Wednesday Sept. 2

                                               Hannah Duncan Arizona Pom Line 8-29-14 ESPN


We will have a double class next Wednesday Sept. 2. Class will begin at 12:10 PM and run until 2 PM in Room 113 (our normal room). I am also paying back the 10 minutes I owe you.


We will watch a documentary on Popov v. Hayashi (casebook p. 113) and then discuss the actual decision in the case.

This is the Barry Bonds 73rd home run ball case. The documentary is fantastic. Very funny and very informative about the law and litigation. 

Update: We will account for this double class by cancelling class this Friday Sept. 4.

Next Wednesday--Doubleheader

Next Wednesday we will be having a double class--From 12:10 PM until 2 PM. In Room 113.

Philosophy and Forced Transfers of Property

" Is it moral for the government to force others to give to the cause of your choice?"

I recommend this interesting video from the Acton Institute and Rob Gressis, a professor of philosophy.

Link

Q & A Session With Duncan and Rembrandt

                                                    Me and Rembrandt at the Louvre



Wednesday April 29 at 1 PM in Room 113.

Y'all bring the questions, oui will try to bring a few answers.

PS My wife thinks I need a haircut, but I am going for the Grizzly Duncan look.

Restrictive Covenants and Liberty

From PropertyProf blog:

 

Boston Archdiocese's Use of Restrictive Covenants

Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:

One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials. One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography. A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

[...] There are a ton of interesting things to talk about here. I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion. Couple of things to think about here. The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement. Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.

Preview of Coming Attractions

We will be studying the law of restrictive covenants soon. Here is an interesting post from the PropertyProf blog:

Restrictive Covenants in Custom Home Subdivisions

The Indianapolis Star has an interesting article recently describing a situation that is doubtlessly concurring in many upscale communities across the country.  There are several subdivisions in Hamilton County, just north of Indianapolis, that were marketed as available to custom home builders only.  The large lot sizes, large home sizes, and required architectural features were supported by both restrictive covenants and zoning restrictions.  But, as you may have heard, the economy crashed.  Many smaller custom home builders in Indianapolis have gone out of business.  The original developers of the subdivisions either lost unbuilt lots to the bank or have been forced to sell them in a bulk sale to production home builders.
So the people who built their $1 million plus custom dream homes (which is a VERY VERY nice house in Indianapolis) in these subdivisions are now battling to keep out the $350,000 to $500,000 production homes.
Lawsuits have already been filed, so I suspect that we will be seeing more appellate court decisions across the country soon interpreting restrictive covenants that the homeowners understood as limiting the subdivisions to custom-built homes.
Tanya Marsh

This is much more restrictive than the exclusionary zoning decisions we read--these covenants are like posting a sign on a neighborhood that says "Only millionaires may live here!"

Great Speaker Monday March 9 at Noon

Don't miss Prof. Jim Duane's entertaining and informative talk on why even innocent persons should not speak to the police when they are suspected of a crime.

I have seen Jim speak many times, and he is one of the best speakers anywhere on legal issues.

Monday March 9 at Noon! Free lunch!

Wednesday Q & A

On Wednesday, we will finish up this little unit on exclusionary zoning and then I will save some time at the end of class for some Q & A.

This is a great time to ask questions about Takings, RLUIPA, and Equal Protection and exclusionary zoning.

Think about what you are confused by or struggling with and ask away!

Supreme Court Oral Argument in Holt v. Hobbs

I would like you to listen to the Supreme Court oral argument in Holt v. Hobbs (the RLUIPA prison beard case). We will do this as a way of making up next Wednesday's class, when I am speaking at UMKC law.

here is a link to the oral argument.

The case is not about religious land use, but the Court is interpreting the very same statutory standards that apply when land use laws are challenged under RLUIPA.

You will get more out of the argument if you read the Court's opinion first.

"Judge says Phoenix church cannot feed homeless "

Link. Here is the report:

It's one of the many good deeds for which churches are known, but now a judge has ruled that feeding the homeless is against the law. The ruling is against CrossRoads United Methodist Church in north-central Phoenix and it says that the church is operating as a charity dining hall, which breaks a city zoning ordinance.
The area where the church is located -- Central and Northern avenues -- is zoned as primarily residential. Charity dining halls are considered businesses.
The controversy swirling around the church's weekly pancake worship service started last spring when neighbors complained about an increase in the number of homeless people in the neighborhood, panhandling, burglary, public intoxication and vandalism, among other things.
"We can minister to the poor ... that’s a given," wrote Rev. Dottie Escobedo-Frank on the CrossRoads Web site. "We can hold a worship service for them out on the front lawn. We just can’t feed them. We can’t fill their bellies with warm food. We might as well just go to the street corners and start handing out money, in hopes they will make their way to some food, because you are not allowed to do it at church!"
The decision affects all churches that are located in Phoenix residential areas.
CrossRoads, which maintains that it is operating as a church and not a charity dining hall, plans to appeal the decision. They have until Nov. 24 to do that.

Property and Religious Liberty in the Regulatory/Welfare State

"[T]he greatest threats to religious liberty" in modern America "stem from the insufficient protection of individual liberty in economic affairs." Prof. Richard Epstein

Think about this. Most of the religious liberty cases arising today are cases, like Hobby Lobby, involving extensive regulation of property and economic enterprises.

We will spend 2 or 3 classes studying federal civil rights laws, such as RFRA and RLUIPA, and their application to religious liberty claims in cases involving primarily land use but also economic enterprise.