No class Monday February 26--Please attend Pound Lecture
-- Lucas (casebook p. 836-849)
--Nollan and Dolan (casebook p. 849-868)
--Palazzolo (casebook p. 868-879); Tahoe-Sierra (link): Murr v. Wisconsin (Link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)
--Preview of this Term's Takings Case: Sheetz v. County of El Dorado (link) (link 2)
We have already made up this class. But I would also strongly encourage you to attend the Pound Lecture, which is the Law College's most prestigious lecture. Here are the details:
On Feb. 26, Keith Whittington, William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University, will deliver the 2024 Pound Lecture at the College of Law. Within his talk, he’ll discuss how diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented the use of diversity statements likely violates both First Amendment and academic freedom principles.
This program will take place in room 111 and begin at noon.
This
year, the Pound Lecture is part of Nebraska Law’s Law and Democracy
Series and is provided by generous support from Barb and Ron Schaefer.
This program has been approved for 1.0 professionalism & ethics continuing education credit in Nebraska.
One peculiarity of Penn Central is that the air rights to be granted Penn Central were over eight properties, including the Biltmore Hotel, the Waldorf-Astoria, and the Yale Club, that Penn Central already owned. How, it must be asked, is the city in a position to grant these rights to Penn Central as compensation for its landmark preservation statute? To do this, the city must first own the rights, which it acquired not by purchase from Penn Central, but by zoning. The city’s compensation for the loss of air rights thus came from its prior uncompensated takings. It is as though A uses money stolen from B to pay B for property purchased from him thereafter.
This difficulty could be avoided by granting Penn Central air rights over structures it did not own, but only by substituting one embarrassment for another. The city would still have to acquire air rights over these properties, which it would do not by payment of compensation to their present owners, but by zoning. Note the irony. If zoning is mere regulation, then how can the state then convey air rights as compensation to Penn Central? To make TDRs work, we need a theory by which the air rights taken by the state through zoning become property only when they are conveyed by the state. The original confiscation is transparent if the air rights zoned away are then resold for cash, and the matter is not any better when these same air rights are used to acquire other property.
--Finish discussion of Kelo ; U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto); Cedar Point decision
-- Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
-- Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw).
-- Lucas (casebook p. 836-849)
I am asking you to listen to this oral argument in lieu of having class on February 26 (the Pound Lecture): 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."
"Interpreting the Constitution is no more difficult, and no different in
principle, than interpreting a late-eighteenth-century recipe for fried
chicken." --Gary Lawson
Suppose you have an old recipe for, say, Great Grandma's egg nog, and it says something like this:
"Add nutmeg to taste."
Some would argue that such an ancient text defies original meaning interpretation and requires the modern reader to interpret the phrase as a
living, evolving concept. But does it really? Are we able to reasonably
understand the meaning of ancient texts, such as Hamlet, The Iliad, The Odyssey, Great Expectations, or the Bible?
Back to Great Grandma's recipe. When someone asked me about this once, I replied as follows:
But nutmeg means nutmeg (as nutmeg was understood at the time the recipe was published). Maybe a little more for you, a little less for me. Maybe a pinch. Maybe two pinches. But certainly not a handful. But if you substitute cinnamon for nutmeg, you are amending the recipe, not following it. Which under Art. V [of the Constitution] is fine so long as 3/4 of the states ratify the amended recipe.
What are your thoughts about being faithful to Great Grandma's recipe?
Is it futile to try to read Hamlet today? Should we allow judges to re-write Hamlet so it says what the judges want it to say rather than what it actually says?
Does a taking for "public use" mean "use by the public" or does it permit any taking for any "public purpose?" Is nutmeg [public use] cinnamon [public purpose]?
We will finish up our discussion of RAP during first 30 minutes of class on Monday
Concurrent Ownership
-- Casebook p. 371-379; 385-405
--Casebook P. 412-420
Constitutional Protection of Private Property: The Takings Clause
--Casebook p. 791-807 (Public Use Requirement)
if necessary:
U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto)
Here is an amusing post from the Inverse Condemnation blog about a Biblical example of eminent domain abuse. Here is an excerpt:
"We've all heard the story of what may be the very first recorded eminent domain action -- or at least the first case of eminent domain abuse -- the Old Testament's telling of the story of Naboth's Vineyard.
You remember: Naboth the Jezreelite owned a vineyard that had been in his family for a while, but King Ahab wanted to make better use of the land to plant his own stuff. So he offered to buy it, but Naboth said no. So Ahab's wife Jezebel (yeah, that Jezebel) told him "King up, man, you are the King. And it's good to be the king. We'll get that land." So she plotted, and cooked up some false charges against Naboth. And after he was stoned to death, the King grabbed the land."
Read the entire post for the rest of the story. It just goes to show that Government's appetite for private property has always been voracious.
By the way, it did not work out well for King Ahab. As R.C. Sproul puts it:
"King Ahab exercised eminent domain when he confiscated Naboth's vineyard. Naboth had labored strenuously to cultivate his vineyard, and when the king saw that it was a productive operation, he took it as his own possession. God's wrath was poured out against Ahab (1 Kings 21:1-19)."
7 Neighbors That Can Hurt Your Home
by Brian O'ConnellWoody Allen once said, "We're all our brother's keepers, but in my case I share that honor with the Prospect Park Zoo."
Saturday, May 7, 2011
Bad neighbors are nothing to laugh about, according to the Appraisal Institute. An unkempt yard, close proximity to a sex offender, or having an unfortunate commercial facility nearby (like a power plant or funeral home), can reduce the value of surrounding homes by as much as 15%.
"The impact can vary tremendously depending on a few factors: how 'bad' the bad neighbor is, the kind of neighborhood you're located in, and the type of market that exists," says Carlos Gobel, director of residential services at Integra Realty Resources in Miami.
But what exactly is a "bad" neighbor? Definitions vary, but real estate professionals say it boils down to any home or business enterprise that turns people off.
"A bad neighbor is one that has no consideration for the rest of the community," says Mindy Pordes, co-founder of Pordes Residential Sales & Marketing in Aventura, Fla. "For example, someone who doesn't take care of the outside appearance of the home, such as the gardening, painting of the outside of the home, roof, garbage and general upkeep. In addition, a bad neighbor may have constant visitors taking up parking spaces, perhaps on the street, loud house parties, dogs that bark all night or stray cats lingering around."
A "bad" neighbor can also be a business or government enterprise whose very existence drives the value of your property down. Here, the seven suprising neighbors that can reduce your home's value:
Power Plants. The data is fairly clear on the impact of power plants on nearby home values — it usually hurts them. A study from the University of California at Berkeley shows that home values within two miles of a power plant can decrease between 4% and 7%.
Landfills. A study from the Pima County (Arizona) Assessor's office shows that a subdivision located near a landfill (and all other residential factors being equal, like house size, school quality and residential incomes) loses 6% to 10% in value compared to a subdivision that isn't located near a dump.
Robert A. Simons, an urban planning professor at Cleveland State University, says that if you live within two miles of a Superfund site (a landfill that the government designates as a hazardous waste site), your home's value could decline by up to 15%.
Sex Offenders. Living in close proximity to a registered sex offender is one of the biggest downward drivers of home values. Researchers at Longwood University's College of Business & Economics conclude that the closer you live to a sex offender, the more your home will depreciate. In the paper, Estimating the Effect of Crime Risk on Property Values and Time on Market: Evidence from Megan's Law in Virginia, Longwood researchers say, "the presence of a registered sex offender living within one-tenth of a mile reduces home values by about 9%, and these same homes take as much as 10% longer to sell than homes not located near registered sex offenders."
Delinquent Bill Payers. One surprising way that neighbors can bring down the value of surrounding homes, especially in town home or condo communities, is by not paying their maintenance fees or their mortgages. "Bad neighbors bring values down by not paying their maintenance fees, in some cases their mortgage payments, and not maintaining the home's appearance," says Pordes. "These homeowners usually do not care about real estate values."
Foreclosed Homes. Perhaps the biggest single factor that drives nearby home values down is a foreclosure. A recent study by the Massachusetts Institute of Technology concludes that a neighbor's foreclosed home can slash the value of homes within 250 feet of the foreclosed properties by an average of 27%. Says Federal Reserve Governor Joseph Tracy recently in his economic outlook for 2011: "The growing inventory of defaulted mortgages continues to weigh down any recovery in the housing market... Problems in housing markets can impact economic growth."
Lackluster Landscaping. Studies show that lawn care has a big impact on surrounding home values. Virginia Tech University released a report stating that pristine landscaping can jack up the value of a home by 5% to 10%. But if the lawn looks like it just hosted the world rugby tournament, it can be a green thumb to the eye of local home prices.
Closed Schools. Sometimes, neighborhood problems can stem from local government action. For example, if a cash-strapped city or town closes a neighborhood school, that can easily steer home values south. The National Association of Realtors says that 75% of home shoppers, the quality and availability of schools in the neighborhood is either "somewhat important" or "very important."
So can you fight back against problem neighbors? In the case of a landfill, power plant or sex offender, your options are severely limited. As long as your neighbors are following the letter of the law, you'll just have to grin and bear it — or move. If not, you have every right to petition your local government authorities for a grievance and at least get the matter reviewed.
If it's a residential property causing the problem, however, you might have better options.
For starters, you can leave a polite letter left in the offending homeowner's mailbox to get his or her attention. In addition, Pordes says that if the home is located within a homeowners association or condo association, the association can send letters to the homeowner and deny the homeowner community privileges to try to ensure the homeowner complies with the community rules and maintains home values.
Most cities and towns do have ordinances against messy yards and junk-laden driveways, so check your community's rules and regulations to see what applies.
Unfortunately, many cities and towns also have landfills, power plants and other less-than desirable commercial-sized neighbors.
Most likely, you're just going to have to live with them.
Here is the hypo I used today in class. I want to correct something I misspoke about.
Grutz conveys "to Dr. Butcher for life, and if Cornelius Husker obtains a Juris Doctor degree, then to Corny and his heirs."
Dr. B has a life estate
Corny has a contingent remainder in FSA (condition precedent---Juris Doctor)
Grutz has a reversion in FSA
What happens if Dr. B dies before Husker acquires his J.D. if we assume that the relevant jurisdiction has abolished the Doctrine of
Destructibility of Contingent Remainders.
The property reverts to the Grantor, but Corny's contingent remainder is not destroyed. So what is the state of the title?
Grantor has a fee simple of some sort (the land has reverted), but the
property goes to Corny upon his graduation from law school. So what does
Corny have?
What does the Grantor have?
The Grantor has a Fee Simple Subject to an Executory Interest (not a Fee Simple Determinable With an Executory Limitation as I might have misspoke).
Husker's contingent remainder has survived as a Springing Executory Interest--it divests Grutz's Fee Simple Subject to an Executory Interest.
Casebook p. 319-328
Casebook p. 334-346 (background only; just skim this material); 346-350
Casebook p. 355-361; 366-370
Have a great weekend. We will need to work hard next week!
Right here in Lincoln NE is one of the easiest places for Gen Z to afford to buy a house! NYT:
Casebook p. 267-297 (probably 2 classes)
Casebook P. 300-302; Blog Posts on Fee Tail and Fee Simple Conditional
Casebook p. 307-323
Remember--no class Wednesday January 17 and Thursday January 18.
We will finish up Finders from current assignment. Then:
Transfer of Ownership by Gift
Casebook p. 213-235 (gift) [probably take 2 classes to cover this assignment]
Estates and Future Interests
Casebook p. 237-248 (for background only); p. 251-267
Casebook p. 267-281
Loper Bright Enterprises v. Raimondo
Here is Oyez's summary of the case:
Facts of the case
A group of commercial fishermen who regularly participate in the Atlantic herring fishery sued the National Marine Fisheries Service after the Service promulgated a rule that required industry to fund at-sea monitoring programs at an estimated cost of $710 per day. The fisherman argued that the Magnuson-Stevens Fishery Conservation and Management Act of 1976 did not authorize the Service to create industry-funded monitoring requirements and that the Service failed to follow proper rulemaking procedure.
The district court granted summary judgment for the government based on its reasonable interpretation of its authority and its adoption of the rule through the required notice-and-comment procedure. The U.S. Court of Appeals for the D.C. Circuit affirmed.
Question
1. Does the Magnuson-Stevens Act authorize the National Marine Fisheries Service to promulgate a rule that would require industry to pay for at-sea monitoring programs?
2. Should the Court overrule Chevron v. Natural Resources Defense Council or at least clarify whether statutory silence on controversial powers creates an ambiguity requiring deference to the agency?
The University is closed today. We will use one of our 10 pre-made-up days to cover it.
Relax, stay warm, stay safe, and stay off the roads!
The week of January 15 to 18 will have a number of schedule changes.
Monday January 15--no class MLK day
Tuesday January 16--Regular Class as scheduled
Wednesday and Thursday January 17 and 18: No class (I am speaking on free speech at Texas Tech Law)
As I mention in the syllabus, we have 10 classes we must cancel based upon our 75-minute regular classes. We will use 3 of those 10 to account for week two.
Note also
It looks like there is a possibility that we will have a snow day on Monday January 8. If so, we will use another of our 10 days to account for it. Check the blog Monday morning for more info on possible snow day.
Depending on snow, that leaves us with 6 or 7 classes to cancel. More about that later.
Just in case any of you stop by to visit the blog this summer, I wanted to share a book recommendation.
It is an oldie, but a goodie. Indeed it has never been more relevant to the times we are living in. I refer, of course to George Orwell's 1984, a prophetic novel about life in a country that very much resembles America in 2023. I am re-reading it as I write this post. It is bone-chilling in its prophetic description of what life in America is becoming here in 2023. Here is a link to Amazon
And here is a brief excerpt about "doublethink:"
Doublethink: “to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget whenever it was necessary to forget….”
Sound familiar? Lol!
My film recommendation is also a classic that is more relevant today than ever. It is A Man For All Seasons, a drama about Sir Thomas More, religious liberty, and freedom from compelled speech about marriage. It won 6 Oscars including for Best Picture. Here is a link
Some of you have been asking, so here goes:
The exam is 3 hours. Closed book. 65 multiple choice questions worth 5 points each (for a total of 325 points). Your score will be based on the number of correct answers; therefore, it is to your advantage to answer all questions.
Good news!I got a room on Wednesday May 10 for a pre-exam Q & A session.
I will show up on Wednesday May 10 in Room 113 (our normal room) at 1:30 (our normal time). It is optional, but if you have questions I will be there to try to answer them.
In the meantime, take advantage of the blog as the ultimate source of answers to your questions. You have the key to the kingdom right there on the blog; don't hesitate to use it.
By the way, although I am 100% over zoom classes and with anything else that reminds me of our societal covid madness, that does not mean that the review session is your only chance to ask questions. I am available by email or telephone call. Drew is also available.
So, if you can't make the review session, don't hesitate to email, text, or call with your questions.
Casebook p. 617-640
Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)
I want to try to get through this in two days, and leave Wednesday for a Q & A session before the exam.
We will not spend a lot of time on the cases. (especially not on the unusual facts of Gallagher v. Bell). We will use the cases to discuss the elements of covenants running with the land and equitable servitudes. The big policy question is to think about how covenants are like steroids to exclusionary zoning. They can be much--much-- more exclusionary than a single-family zoning law.
The Administration asks us to set aside 15 minutes of class time for students to fill out course evaluations.
So, today will be our day. I will show up for class at 1:45 PM instead of 1:30. See you then.
Casebook p. 1156-1165; 1174-1188 [note p.1165-1174 is not assigned]
Adverse Possession
Casebook p.168-191
"The more you say I can't say something, the more urgent it is for me to say it....It has everything to do with my right, my freedom of artistic expression."
Something to think about in an era of ubiquitous censorship.
April 17 -- No Class
April 18: Casebook p. 1129-1149
April 19: Casebook p. 1149-1165
Remember, we have already made-up 4 classes. And we will be canceling 3 of the 4 in April. Here is the schedule:
Monday April 3--Regular schedule--Drew Bydalek will lead a Takings/Equal Protection Review
Tuesday April 4--No class (I am speaking at B.C. Law on school choice)
Wednesday April 5--No class (I am speaking at Suffolk Law on school choice)
Monday April 17--No class (I am speaking to a lawyers group in Fort Worth Texas on school choice)
Today is the 10th Anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Department of Justice today issued a policy statement on the land-use provisions of RLUIPA, with questions and answers, to provide information to individuals, religious assemblies and institutions, and local government officials about the requirements of the law. This Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) is available here.
As we circulated to you yesterday, the Department also has issued a Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act (press release is linked here; Remarks of Assistant Attorney General Tom Perez are linked here).
The Department of Justice’s Justice Blog today also features an article about RLUIPA entitled Ensuring Religious Freedom for All.
For more information about the Civil Rights Division’s efforts to protect religious liberty and combat religious discrimination, please visit http://www.justice.gov/crt/religiousdiscrimination.
Eric TreeneSpecial Counsel for Religious Discrimination202.353.8622
--RLUIPA Materials (I will email them to you in PDF format)
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.
Allenhurst, NJ Sued Under RLUIPA One Day and Settles the Next
The Borough of Allenhurst, New Jersey has settled a lawsuit against an Orthodox Jewish group just one day after the group filed suit in federal court alleging violations of RLUIPA’s unreasonable limits and exclusions and equal terms provisions. As part of the swift settlement, the Borough will permit an addition to a residential home to be used as a synagogue, and will avoid having to pay attorneys’ fees, which are available to prevailing plaintiffs in RLUIPA cases.
The plaintiffs, Ohel Yis’hak Sephardic Synagogue of Allenhurst and Rabbi Moshe Shamah, sought to convert the Rabbi’s existing home into a synagogue. Rabbi Shamah serves a Sephardic synagogue in Brooklyn, but spends his summers in Allenhurst. For the past 20 years, he has used his home in Allenhurst to host religious worship for friends and family during the summer months, because there is no synagogue in the Borough. Many members of the Brooklyn congregation follow the Rabbi to Allenhurst during the summer, and have caused the summertime Sephardic Jewish population in Allenhurst to steadily rise over the years. To accommodate the growing Jewish population, the plaintiffs sought to build an addition to the Rabbi’s home to operate a “small religious facility where Sephardic Jews can gather to pray and learn.” One hiccup in the plaintiffs plans – Allenhurst’s zoning code does not permit places of worship – either as of right or as conditional uses – in any of the 7 zoning districts. Yet, the Borough allows similar secular assembly uses, such as art and cultural instruction, art galleries, fitness centers and restaurants.
The plaintiffs sued the Borough on January 23, 2018 in a two-count complaint alleging violations of RLUIPA (complaint available here). The next day, the parties agreed to settle the case and the Court entered a Consent Order. In the Consent Order, the Borough acknowledges that its “outdated zoning code, which the [Borough] intends to immediately address” completely “excludes religious facilities from its jurisdiction and unreasonably limits religious assemblies, institutions and structures within its jurisdiction.” The Borough also acknowledges that its zoning code “treats religious assemblies and institutions on less than equal terms as nonreligious assemblies and institutions.” Despite these acknowledgments, the parties agree that the “Consent Order represents a compromise of a disputed claim, and shall not in any way be construed as an admission of wrongdoing or liability on the part of any Party. Therefore, the parties shall be responsible for their own attorneys’ fees and costs associated with this action.”
The Consent Order in Ohel Yis’hak Sephardic Synagogue of Allenhurst v. The Borough of Allenhurst (D. N.J. 2018) is available here.
1. Suppose there is an old Spanish Mission church, Our Lady of Guadalupe, located near San Antonio Texas. And suppose the local landmarks committee decides to declare the church a public landmark. This designation requires the church to get permission from the landmarks committee before altering the external features of the building.
So, the church’s membership has grown tremendously, and the sanctuary is too small for its present needs. The
church has asked the landmarks committee for permission to add an
addition to expand the size of its sanctuary. The committee rejected the
request, because it would alter the external appearance of the church. The church will not be able to serve its entire congregation if it is not allowed to add the addition to its sanctuary.
Apply RLUIPA
2. Suppose, in Los Angeles, the Salvation Army purchases a building in a commercial area right next door to the Ritz Carlton and the W by Marriott. The Army wishes to convert the building into a homeless shelter to house and feed the less fortunate of the City of Angels. Although hotels, restaurants, commercial businesses, and even strip clubs are allowed to locate in a Commercial Zoning District, religious ministries are permitted only if they receive a special use permit. The Army applies to zoning officials for a special use permit and the application is denied.
Apply RLUIPA.
Always working hard to learn more about property law.
1. As I already told you in class, my school choice article will not be on the exam. It relates to property because of exclusionary zoning and students trapped by zip code in low-performing schools, but I will not test you on my article or on the issue.
2. I really enjoyed our in class discussion of school choice. I know many of you oppose school choice, but it is wonderful that we could have a spirited and civil discussion of the issues. Thanks to all of you who participated in our class discussion.
See you on April 10 when I get back from taking UNL Law on the road.
Tahoe-Sierra (link): Murr v. Wisconsin (Link); Preview of this Term's Takings Case: Tyler v. Hennepin County, Minnesota (link); Takings Summary
Exclusionary Zoning and Equal Protection
Washington v. Davis (link); Casebook p. 883-896; Con Law Video on Equal Laws vs Equal Results:
https://use.vg/CvcTZk
Casebook p. 897-914: My School Choice Article (PDF Provided)
The video linked above is one I recorded for my Con Law class when we were zooming law school. I recorded the entire Con Law class over the summer of 2020 (alone in Room 113 with a video recorder) so we could have something that at least resembled real law school notwithstanding Zoom Law.
Finish our discussion : Regulatory Takings: Penn Central (casebook p. 820-836); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw)
Euclid (casebook p.753-763); First English (casebook p. 816-820)
Lucas (casebook p. 836-849)
Nollan and Dolan (casebook p. 849-868)
For Wednesday:
Palazzolo (casebook p. 868-879); Tahoe-Sierra (link): Murr v. Wisconsin (Link);
Remember, work hard but leave time to relax. Life is good. Take time to enjoy it.
And here is my scorecard (I always try to score games I attend):
