“Social Justice” and Property Law

Property is a course that contains a great deal of foundational legal vocabulary and concepts--such as first possession & estates and future interests--but it also contains a great deal of public law and “social justice” content. Most of the latter will arise a few weeks into the course when we study constitutional property rights under the Takings Clause, zoning restrictions on religious land use, and exclusionary zoning and equal protection under the 14^th Amendment.

But be aware that no one ideological side has a monopoly on “social justice.” There are many sides of “social justice” and no one side—not progressives, not conservatives, not moderates—has a monopoly on social justice. Indeed, in many cases there are competing views of “social justice” on each side of the case. For example, when burdensome environmental regulations are imposed on the use of land, we may have a conflict between environmental “justice” on one side and protecting private property rights under the Constitution (economic “justice”) on the other.

Neither side is “right” and neither side is “wrong.” There are no ideological truths, just ideological opinions and arguments. There are also no non-debatable arguments.  Public interest lawyers are often involved on both sides, and again neither progressives nor conservatives have a monopoly on what is good policy and what is in the public interest.

Inclusive leaders in the law acknowledge this and recognize that the lawyers and parties on both sides of these cases are reasonable persons of good will. The cancel culture is anathema to inclusion and diversity.

Both conservatives and progressives should consider getting involved in public interest law and pro bono service. In other words, "social justice" means different things to different lawyers, and thus "social justice" law is for everyone.

Question to think about: 

Suppose Terrific Tenant is unable to pay his rent for several months. Lovely Landlord, brings an action to evict Terrific Tenant for nonpayment of rent. Which lawyer in this case is on the side of justice--Tenant's lawyer seeking to stop the eviction, or Landlord's lawyer seeking to recover the property so it can be leased to a new tenant who will pay the rent? Or, perhaps, both lawyers? What is justice in a case like this? Are both tenants and landlords deserving of justice? If justice means getting what you deserve, where is justice in a case like that between Terrific Tenant and Lovely Landlord? Tenant is entitled to the protections determined by the law, and Landlord is entitled to payment of rent or his property back.

Do You "Feel" or "Think" About Legal Issues

 "Using 'feel' instead of 'think' is a sign that feeling is doing more work than thinking." --Ed Whelan

RLUIPA & Nebraska L-T Act

 Alex passed this information on to me:

 A Property student asked for confirmation on if you had told the class that for Nebraska landlord tenant and RLUIPA exam questions, you would provide the relevant provisions on the exam.  I don't recall you stating this, but I just wanted to confirm with you.

And here is my answer to Alex:

No. I said if I thought they needed the text of RLUIPA [to answer a complex question], I would provide it. Nothing about landlord-tenant act. They should have basic knowledge of both statutes.

In other words, I expect you to have a reasonable understanding of the basic substance of both RLUIPA & the Nebraska Residential Landlord-Tenant Act. Basically, know the provisions we discussed and analyzed. If I were to ask a complex issue of statutory construction, I would quote the relevant statutory provisions. But I expect you to know the basic doctrines and definitions that we discussed in class.

Basically, assume I have reasonable expectations about your knowledge of the materials we covered. I am a reasonable test writer (not unreasonably reasonable, just ordinarily reasonable), and my expectations of your knowledge are reasonable.

See you Monday at 5 PM.

Exam Q & A Session: Monday April 28 @ 5 PM

 I have scheduled an Exam Q & A session for Monday April 28 at 5 PM in Room 113.

 

Exam Information

 

Final Examination

April 30, 2025                                 

Four (4) Hours

Examplify Mode: Secure          

 

 

BE SURE YOUR EXAMINATION

IS COMPLETE

 

Exam Number __________

 

                                                                       

                                                                 INSTRUCTIONS

 

1.         You must complete this examination using Examplify in the secure mode. Using the wrong Examplify mode is an Honor Code violation.

 

2.         This is a four hour closed book/closed network examination.  You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

 

No cell phones or other unauthorized electronics are allowed in the exam room.

 

3.         Be sure that you have all pages of the examination question packet.

 

4.         Be sure to place your examination number (not your name) on page 1 of this question sheet.

 

5.         If you finish the exam more than five minutes early, you can turn in your exam in the Dean's Office.  Otherwise, you must turn in your exam in this room.

 

6.         You must return the exam questions and all used scratch paper, however nothing written on this exam or any scratch paper will be graded.

 

7.         Confidentiality: It is an Honor Code violation to share these exam questions with anyone. It is also an Honor Code violation to retain a copy of this exam in any format (printed, downloaded, scanned, photographed, etc.).

 

8.         Unless otherwise indicated in the questions, answer the questions in accordance with traditional common law rules and principles.  In particular, unless otherwise indicated, you should consider the following to be in force:

 

1.         Statute De Donis Conditionalibus

2.         Statute of Uses

3.         Statute Quia Emptores

4.         Rule in Shelley's Case

5.         Destructibility of Contingent Remainders

6.         Doctrine of Merger

            7.         Rule Against Perpetuities

8.         Ordinary deed capable of creating any type of future interest which could be created by a conveyance operating under the Statute of Uses.

 

9.         This examination consists of 75 multiple choice questions. Your score will be based solely on the number of correct answers.  It is therefore to your advantage to answer all questions.  This examination counts for a total of 375 points and each question is of equal weight.

 

                                                                   GOOD LUCK!

 

Property Spring 2025: Assignment For Week Thirteen

As Shakespeare said, "Our revels now are [almost] ended." Thank you for a great Semester of Property!

 --Casebook p. 662-672

V. Easements, Etc.

--Casebook p. 559-571

--Casebook p. 571-593

Granite Properties Picture

Stoner v. Zucker (p. 571)

Did the parties in this case intend to create an oral license or an oral easement?

In other words, did Pl orally agree to grant Def a perpetual easement for an irrigation ditch?

Or did Pl merely accommodate his neighbor by giving him permission to construct the ditch?

Does it matter? Should it matter?

It is one thing to enforce an oral agreement to grant an easement under some exception to the Statute of Frauds, but it is quite another thing to convert a neighborly oral license into a perpetual, irrevocable easement.

Take a look at p. 573:

“The recognized principal…is that where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures or, in general, his rights under the license, and the license will continue for so long a time as the nature of it calls for.”


Was Leo Durocher right when he said: "Nice guys finish last."

Stonerv Zucker Hypo

 Suppose you live south of Lincoln, out near Hickman, on Blackacre, a 100-acre tract with a nice single-family home.

 Your next door neighbor on Greenacre, Harvey Grutz, knocks on your door one day and asks you if he can use a little private road across your land that will give him access to a main paved road that abuts on Blackacre.

 He owns a construction company, and he says he will regrade the road a little bit and put down some gravel.

What do you say to him?

What should you say to him?

 So let’s say you say: “well, I guess it will be okay for you to use the road.” I mean you want to be a good neighbor, right?

 He doesn’t pay you anything, no deed or contract, just your oral “go ahead”; he puts down some gravel and he uses the road for 2 or 3 years.

 Now, you decide to put up a horse barn on part of your land—right on top of where that private road is—and when Grutz learns of your plans he sues to enjoin you from interfering with his right of way over Blackacre.

 What result?

 Is the oral permission you gave him, a license? If so, then it is revocable at will right?

If he claims it is an oral easement, is it in writing as required by the Statute of Frauds? Is it appurtenant to Greenacre, and what is its duration? Basically, a permanent easement appurtenant to Greenacre?

All you did was say, “I guess you can use the road.”

So now let’s talk about Stoner v. Zucker on page 571.

Snow v Van Dam: Facts and Issues

Time 1: Grutz  coveys South Lots (1-95)===============> Pls (prior Pls)

                                                                  <covenants-----------

Time 2: Grutz conveys Lots C,D, & E (North Lots)---------->Lenich---->Duncan (puts up snack bar) 

                                                                                 <covenants--

Ti,e 3: Grutz conveys lots 96-100------------------------------>Pls (subsequent Pls)

 

Exactly which covenant is being enforced by Pls in this case? The ones Lenich made on Time 2.

Which lots have the benefit of those covenants?

Property Spring 2025: Assignment For Week Twelve

 --Finish Adverse Possession Materials

     Real Covenants and Equitable Servitudes

--Casebook p. 617-628

 --Casebook p. 628-640

-- Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)

--Casebook p. 662-672

Covenants: Prior Party Enforcement

Date 1 Grutz ----->A (A covenants)

Date 2 Grutz ----->B (B covenants)

Date 3 Grutz ----->C (C covenants)

Date 4 Grutz ----->D (D covenants)

Date 5 Grutz ----->E (E covenants)

Against which of the owners of lots 1-4 may E enforce the covenant?

Against all of them, because when A, B, C, and D agreed to restrict lots 1-4 to the covenants, which lots received the benefit of the covenants? All of the lots retained by the Grantor Grutz. Thus, when Grutz sold Lot 5 to E the benefit of those covenants ran with lot 5 to E.

Do you all see that?

Against whom may A enforce the covenants?

 In theory, against no one because A does not own land benefited by any covenants.

Why not? Because at Time 1,  Lots 2-5 had not yet been restricted by any covenants.

This is where a common scheme of development has a valid role. Suppose that when Grutz began selling lots in Grutz Acres, he had a sales office where purchasers could go to purchase a lot in this new subdivision. And suppose there was a beautiful model of Grutz Acres on display in the office showing 100 beautiful little single family homes on the subdivision. And the brochures advertised what a lovely, exclusive single-family neighborhood Grutz Acres would become.

Now, A can argue that when E agreed to restrict Lot 5 to the single-family scheme of covenants he intended to benefit all of the lots within the common scheme as third party beneficiaries of the covenants he agreed to when he purchased Lot 5.  

Snow v. Van Dam

Does this case concern an Implied Reciprocal Servitude being imposed by the Court from the existence of a common scheme?

Where was this case decided? What is the Massachusetts Supreme Court's view of implied or oral covenants and servitudes? See page 648.

So, why is the Court concerned about the existence of a "common scheme?"

Class Schedule

 We have two more classes to cancel/or change (we will use 1 of our pre-made-up classes for March 25; April 7 will go forward with Alex conducting a review session):

Tuesday March 25 (class cancelled)

Monday April 7 (Alex will lead the class instead of me to conduct a review session on Recording Acts; spend some time before the review session thinking about recording issues you may not fully understand)

That leaves us with 4 (or maybe 5) pre-made-up classes to use. As I said early in the semester, we will use those 4 pre-made-up classes to cancel the last week of class (April 14-17).

Thus, Thursday April 10 will be our last class.

I will also schedule a review session (conducted by me) sometime shortly before our final exam on April 30. Perhaps on April 28 in the evening if I can get a classroom. 

Sanborn v. McLean

Lets simplify the facts a little to isolate the doctrinal issues:

Assume Grutz owns lots 1-100 in Grutz Acres, a subdivision.

Dates 1-99 Grutz conveys lots 1-99 to Pls . Most of these lots --say, 80 out of 99--- are sold with Grantee covenants pursuant to which the Grantee agrees to restrict use to single family residential only.

Date 100 Grutz conveys lot 100 to Lenich without covenants

Lenich subsequently conveys to X who subsequently conveys to Poor Duncan

Is Poor Duncan subject to the burden of any covenant running with Lot 100?

Notice there are 3 problems here:

1. There is no covenant restricting lot 100.

2. Even if a court infers an implied restriction, based upon a "common scheme" of development, it is not in writing as required by the Statute of Frauds.

3. In any event, Poor Duncan appears to be a BFP without actual or record notice of the mystical implied reciprocal servitude.

Which covenant?

Was it in writing under the Statute of Frauds?

How is Poor Duncan charged with notice of a covenant that was never expressly created in writing or even orally?

Take a look at p. 643:

"Is defendants’ lot subject to a reciprocal negative easement? If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. For want of a better descriptive term this is styled a reciprocal negative easement [let's call it an implied reciprocal servitude]. It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration of its period of service or by events working its destruction. It is not personal to owners, but operative upon use of the land by any owner having actual or constructive notice thereof. It is an easement passing its benefits and carrying its obligations to all purchasers of land, subject to its affirmative or negative mandates. It originates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner. Such a scheme of restriction must start with a common owner; it cannot arise and fasten upon one lot by reason of other lot owners conforming to a general plan. If a reciprocal negative easement attached to defendants’ lot, it was fastened thereto while in the hands of the common owner of it and neighboring lots by way of sale of other lots with restrictions beneficial at that time to it."

What does that mean? I think the case suggests that if the developer [Grutz] begins to sell lots pursuant to a common plan of Grantee covenants--often making oral representations about the singe-family development grantees are buying into--at some point the covenants become mutual and the grantor is presumed to have restricted the lots he still owns in accordance with the plan. It is not an express mutual covenant; it is implied by the court based upon the Grantor's oral promises and representations.

But did I take with notice of this "implied" servitude when I purchased lot 100 from Lenich? Is it in my chain of title? Is it recorded anywhere? What does the court say? See page 644 (some kind of magical inquiry notice--I should have sensed the existence of the IRS)! Prof. Larry Berger: "What the Sanborn doctrine does is to impose a burden of search beyond the grantee's own back title and even beyond a search of other deeds not in the chain of title purporting to bind his property. It requires him to search the record for covenants which apparently have no connection with the very land with which he is involved or to sense the existence of the covenants by noting the uniform appearance of the area,"

Now suppose that Grutz inserts a clause in the deeds to lots 1-100 providing:

"Nothing contained herein shall be construed as imposing any restrictions, express or implied, upon any land of the Grantor not hereby conveyed."

Now is there any justification for the courts to infer an implied reciprocal servitude running with Lot 100?

Moore as a Covenant Case: More Hypos

I would like you to focus on Moore, not as a zoning case, but as a covenant case. In other words, suppose the zoning laws did not pose a problem for Mrs. Moore, but that she took Blackacre subject to a "single family residential use only" covenant that defined "single family" in such a way as to forbid her from allowing both grandsons to live with her. Here are some questions to ponder:

1. Would such a covenant run as either a real covenant or an equitable servitude? What are the arguments that such a covenant would not run?

2. Assuming the covenant would run under state law, would it be unconstitutional for the courts to enforce it against Mrs. Moore? Why or why not?

3. Assuming Mrs. Moore sincerely believes that her Christian faith requires her to take care of her extended family, does she have a right under RLUIPA to live with her extended family in her own home? In other words, does RLUIPA apply to enforcement of the covenant against Mrs. Moore by her neighbors who own land subject to the benefit of the covenant? What are the issues under RLUIPA?

Here is a link to RLUIPA.

Now ask yourself the same questions concerning enforcement of the covenant against home school use of residential land and "town of Ave Maria type" covenants banning the sale of contraceptives and the performance of abortions on land subject to the covenants.

What about a covenant in a residential subdivision prohibiting cohabitation by unmarried couples or same-sex couples? Could it be enforced against John Doe and his lifetime partner Bill Roe?

Now consider this recent case discussed in the ReligionClause blog:

Court Enforces Restrictive Covenant To Bar Construction of Chabad Center

In Criscenzo v. Chabad-Lubavitch of  the Shoreline, Inc., (CT Super. Ct., Aug. 13, 2010), a Connecticut trial court judge enforced a restrictive covenant in a deed to bar Chabad Lubavitch from building a Chabad center to be used as a synagogue, school and activity center on residential property in the town of Guilford.  The Guilford Planning and Zoning Commission had granted a special permit for the construction. The court rejected challenges to plaintiffs' ability to bring the challenge as well as a claim of change of circumstances. The New Haven Register reported on the decision yesterday.

Sprague v. Kimball (p. 640)

 Grutz conveys lots 1-4 to various Grantees and each Grantee agrees to a written covenant restricting their lots to residential use only. Although Grutz did not agree to restrict any of his land pursuant to the plan of residential development, he apparently orally represented to the Grantees at the time they purchased that all of the lots would be restricted to residential use only.

Grutz conveys lot 5 to Duncan without any restrictive covenants. 

Duncan intends to build a Gordon Ramsey's Kitchen on Lot 5 and conduct a fine dining restaurant business on the property.

Is the oral agreement Grutz made to restrict Lot 5 enforceable as an equitable servitude against Duncan, whose deed to Lot 5 contains no express covenant restricting his use of Lot 5 to residential use only?

What does the Court hold? What is their reasoning?

The Court says that under the Massachusetts Statute of Frauds, "an equitable as well as a legal interest in land must be evidenced by some sufficient instrument in writing or it is unenforceable."

The implied equitable servitude theory does not work here, because the Massachusetts' cases take the Statute of Frauds very seriously and enforce it here to protect Duncan from an oral or implied equitable servitude. 

This is not a major issue in practice, because most residential developments contain carefully drafted covenants in each deed in the subdivision.

 Sprague v. Kimball--Must a covenant be in writing under the Statute of Frauds? The answer should clearly be yes, because covenants & servitudes are interests in land subject to the Statute. However, as a leading Hornbook points out, many courts either don't apply the Statute or find clever exceptions to avoid enforcing it. Thus, although "in theory the Statute applies... in practice it does not frequently bar the covenant." Again, the typical scheme of covenants in a single family development or a shopping center development is carefully drafted and properly recorded, so the Statute is usually clearly satisfied in any event.

 

Hut Hut Hut Acres News!

                                        

FYI: Recent news item.Scott Frost Sells His Home in Lincoln for $3.5 million! Link

Remember--No Class Tomorrow Tuesday March 25

 See you Wednesday. We will finish recording and move on to adverse possession!

Chain of Title: Searching with a Grantor Grantee Index

 Date 1 Grtuz conveys to A (plus R)

 Date 2 A conveys to B (plus R)

Date 3 B conveys to C (plus R)

 

Now it is date 4 and C agrees to convey the land to me. How do I go about searching the chain of title using a grantor-grantee index?

Vandalism of Property as a Serious Evil

Suppose some fraternity brothers have a few beers and decide to knock over some mailboxes just for the fun of it. Is this "minor" act of vandalism, destroying maybe $100 worth of the property of another, a serious moral wrong? Or just a minor one? Suppose they vandalized your automobile and caused several thousands of dollars damage?

What is the motive of the vandal? Is it like someone who steals a bag of groceries to feed his children? Or is it merely the pleasure the vandal receives from hurting someone else?

Is taking pleasure in hurting someone else a minor moral wrong? Or is it a major moral wrong? The thief steals for the motive of enriching himself, not for the mere pleasure of hurting the victim of the crime. But the vandal destroys solely for the pleasure of inflicting harm on the victim, a motive that might be described as purely evil.

Something to think about as we live through these interesting times.

Property Spring 2025: Assignment For Week Eleven

 -- Casebook p. 1180-1188

 Adverse Possession

--Casebook p.156-191

If  Time Permits:

 
     Real Covenants and Equitable Servitudes

--Casebook p. 617-628

Selected Nebraska Recording Laws

 1. 76-202

2. 76-203

3. 76-238

4. 76-248

5. 23-1508

6. 23-1513

Property Spring 2025: Assignment For Week Ten

 --Casebook p. 1129-1144

--Casebook p. 1144-1158

--Casebook p. 1158-1165

 

If time permits

-- Casebook p. 1174-1188

Property Spring 2025: Assignment For Week Nine

 --Casebook p. 897-904; Begin RLUIPA materials

--finish RLUIPA

-- Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)
 Nebraska Residential Landlord and Tenant Act (see link to Nebraska Property Laws on side bar)(sections 76-1401 to 76-1449: read through the Act generally, but pay particular attention to sections 76-1416, -1418,-1419,-1421,-1426,-1427,-1437 and -1439). We will spend two class periods on this assignment.

 

No class Wednesday March 5--my event at Creighton Law was Rescheduled due to Weather--We will use one of our pre-made-up classes to account for this. I think this is the fourth one we have used (which leaves us with 6 unused pre-made-up classes).

Remember, No Class Tomorrow March 5

 See you Thursday to begin a short discussion of Nebraska residential landlord-tenant law.

Substantive Due Process: Which Liberties Are Fundamental? Sez Who?

 Many law students struggle to understand "substantive due process." That is natural, because the idea of substantive process, to quote Justice Scalia, is "babble." The Due Process Clause of both the 5th and 14th Amendments provides that no person shall be “deprived of life, liberty, or property, without due process of law.”

According to one commentator, “Procedural due process concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property." Thus, courts need to focus on  "What procedures satisfy due process?" Basically, due process requires a fair trial, including notice, an opportunity to respond or to defend yourself, and "an impartial tribunal."

Once a person is given fair procedures, his life, liberty, or property may indeed be deprived under laws, such as criminal laws, tort laws, and other duly-enacted laws.

However, the Supreme Court has a long and controversial history of reading substance into the Due Process Clause, as it did infamously in Dred Scott.

Here is how one source defines Substantive Due Process: 

"The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given."

Thus, in Dred Scott, the Supreme Court held that the Missouri Compromise was uncon­stitutional and that any congressional action to emancipate slaves would violate the substantive due process protections for a slave­holder and his right to travel with his property. A slaveholder’s liberty to bring his human property into a U.S. Territory was substantively protected by the Due Process Clause. 

Again, "substantive process" seems like a contradiction in terms. But it is a doctrine that allows the Court to read new substantive rights into the Constitution, and then to treat those rights as highly protected liberties that may not be taken even with fair procedures. It is as though the Court has judicially amended the Constitution to provide that "No liberty deemed fundamental by this Court shall be deprived even with fair process." 

Which liberties are protected substantively by the Due Process Clause? All liberties? Certain "fundamental"  liberties? Which liberties are fundamental? My list? Your list? Sez who?

Property Spring 2025: Assignment For Week Eight

 -- Lucas (casebook p. 836-849); Nollan (casebook p. 849-855)

-- Dolan (casebook p. 855-868); Sheetz v. County of El Dorado (2024): link

-- Palazzolo (casebook p. 868-879); Tahoe-Sierra (link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)

Exclusionary Zoning and Equal Protection Clause

--Washington v. Davis (link); Casebook p. 883-896; Video of me on on Equal Laws vs Equal Results:

https://unl.yuja.com/V/Video?v=6828169&node=29033592&a=134658278&autoplay=1

Jan and Dean and the Ancient Surfer Woodie

 

Actually Jan Berry (Jan) drove a Corvette and crashed it in a terrible accident on "Dead man's Curve". He survived, but he suffered from serious brain damage that effectively ended his career. We didn't wear seat-belts in Sixties (I am here only by the grace of God).

Village of Belle Terre

 Facts from Oyez:

"The Village of Belle Terre in New York had an ordinance restricting land use to one-family dwellings. The statute’s meaning of “family” was one or more related persons or not more than two unrelated people. The appellees owned a house and leased it to unrelated people [six college students], in violation of the Village’s ordinance. When the Village asked the respondents to remedy the violation, the homeowners sued the Village seeking a judgment that declared the ordinance unconstitutional because it violated the Due Process Clause...."

The Court upheld the law under a rational basis test because it is reasonably related to the legitimate state interest of protecting single-family neighborhoods.

Euclid: Apartment Buildings as "Nuisances" and "As You Wish" Deference

 This case deals with a comprehensive zoning ordinance enacted by the Village of Euclid.  
    
 Zoning is a relatively recent legal development that put Government in the position of deciding how private land should be used.
    

Look at how extensive were the controls enacted in this case:
    
 All the land in the village was divided into 6 use districts – the most restricted of which allowed only single-family dwellings and farming and the most permissive of which allowed practically all residential, commercial, and industrial uses.
    
 All land was further divided into three height districts and to four area districts governing minimum area of dwellings.    

The PI in this case owned a 68-acre tract of land that was zoned U-2, U-3 and U-6. The result of the zoning restrictions was to reduce the value of his land by 75% (from $10,000 per acre if not zoned versus $2500 per acre as zoned under the ordinance. Casebook p. 756

What was the purpose of zoning part of this land as U2 (residential two-family dwellings)? Why not at least allow the land closest to Euclid Avenue to be zoned U3, so as to include apartment houses, churches, schools, museums, etc? What harm to the community do apartment houses cause? See casebook p. 760:

With particular reference to apartment houses, it is pointed out that the development of
detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the
privilege of quiet and open spaces for play, enjoyed by those in more favored localities—until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.

See also p. 758: "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." 

The Court applies "as you wish" deference to the city's police power argument:

 If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. [As you wish, my beloved government]

But now see Note 3on page 761 discussing the lower court's view of the Euclid zoning scheme.

Who has the better argument--the Supreme Court or the federal district court?

 

Bowers Development v Oneida County Industial Development Agency: Might Kelo be Overruled?

 Link here to SCOTUSblog coverage of cert petition

Here is a link to an article on the case. And here is a quote from that article:

 Bryan Bowers and his business partner, Mike Licata, planned to build medical office space across from a new hospital in downtown Utica, New York. The Oneida County Industrial Development Agency (OCIDA) nixed that plan by agreeing to take the property so a competing business next door could use it for a parking lot—a land grab that a state appeals court approved last February.

The U.S. Supreme Court invited such abuses with its 2005 ruling in Kelo v. City of New London, which blessed the use of eminent domain to promote economic development by transferring property from one private owner to another. Bowers' case offers the justices another chance to revisit that widely criticized decision, which endangered property rights by letting government officials reassign them to politically favored businesses.

The Institute for Justice, which represents Bowers, is asking the Supreme Court to clarify the limits of that license. Alternatively, it says, the Court should overturn Kelo, which was "wrong the day it was decided."

Taking a medical office from A so B can use it for a parking lot. A parking lot! 

If the Court decides to hear this case, it could be the end of Kelo! Let's keep an eye on it.

Landmark Laws: What To Do?

Suppose you own a building that has some beautiful exterior features or historical significance, but it has not yet been landmarked? Would you destroy the beautiful features (or tear down the building and replace it with an ugly, purely-functional building) in order to preserve more control over your building? If many millions of uncompensated lost dollars are at stake, what would your business sense tell you to do?

Or suppose you are about to build a new building in NYC post-Penn Central. Do you instruct the architects to build it beautiful or to build it plain and functional? Which choice serves your economic self-interest?

The unintended consequences of legislation can  be disastrous.

See the following Gotham Times article:

Preservationists See Bulldozers Charging Through a Loophole ("In a strategy familiar to preservationists, property owners rush to obtain demolition permits so their structures won’t receive landmark protection.")

See also: An Opaque and Lengthy Road to Landmark Status

Class Cancelled Due to Weather Today (Monday February 17)

 I have heard from Omaha commuters that road conditions are bad. It is not worth risking injury on the roads.

So, class is cancelled today! We will use 1 of our make-ups to cover it.

Tomorrow is the Review Session with Alex.

Stay warm and safe.

This should leave us with 7 make-ups to use going forward.

Rick Duncan

Property Spring 2025: Assignment For Week Six

 --Casebook p. 385-405

--Casebook p. 412-420; Takings: Casebook p. 791-807 (Public Use Requirement)

 I am also asking you to listen to thi oral argument in Kelo : here is a link to the oral argument in Kelo. 

It is a great argument. The issue is interpretation of the "public use" requirement that allows government to take private property only if the taking is for a "public use."

--U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto);Cedar Point decision

If needed:

-- Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)

Update on Class Schedule

 I will be speaking at Creighton Law School on Tuesday February 18. However, there is no need to cancel class because our TA, Alex Reinke, will be leading a review session on the 18th covering estates, future interests, and RAP. This will be a great opportunity to review this material while it is still fresh in your memories.

Berman

 

 From Oyez:

Facts of the case

 In 1945, Congress passed the District of Columbia Redevelopment Act, creating the District of Columbia Redevelopment Land Agency, whose purpose would be to identify and redevelop blighted areas of Washington, D.C. Congress gave the new agency the power of eminent domain – the ability to seize private property with just compensation. Berman and the other appellants owned a department store in one blighted area targeted by the commission and objected to the seizing of their property solely for beautification of the area. The landowners brought a civil suit in federal district court challenging the constitutionality of the Act. Their case was dismissed. They then appealed directly to the U.S. Supreme Court.

Question

Did the seizing of Berman and the other appellants' property for the purpose of beautification and redevelopment of the community violate the Takings Clause of the Fifth Amendment?

Conclusion

No. In a unanimous opinion authored by Justice William O. Douglas, the Court found that the Fifth Amendment does not limit Congress' power to seize private property with just compensation to any specific purpose. The Court concluded that the power to determine what values to consider in seizing property for public welfare is Congress' alone. "If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."

Midkiff

 From Oyez:

Facts of the case

After extensive hearings in the mid-1960s, the Hawaii legislature discovered that while Federal and State governments owned nearly 49 percent of the land in Hawaii, another 47 percent was owned by only 72 private landowners. To combat this concentration of ownership, the legislature enacted the Land Reform Act of 1967. The Act adopted a method of redistribution in which title in real property could be taken from lessors and transferred to lessees. Frank E. Midkiff, a landholder, challenged the Act.

Question

Did the Land Reform Act of 1967 violate the Public Use Clause of the Fifth Amendment?

Conclusion

 In a unanimous decision, the Court held that the Public Use Clause did not preclude Hawaii from taking title in real property, with just compensation, for the purpose of reducing the concentration of ownership. Noting that Hawaii's statute was rationally related to a conceivable public purpose, the Court argued that "debates over the wisdom of takings" were best carried out by legislatures, not by federal courts. The Court also held that the fact that the property taken by eminent domain was transferred to private beneficiaries did not condemn the law to having a solely private purpose.