Property Ii

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Statute and Art Review...

Does it encroch on free speech and how have the courts dealt with regulating...

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Art. Is a valid issue. What do you do if it includes the front yard woman. Would you have objections? It could be labeled as a nuisance. Is this seeming protected speech. Safety is a big issue. If you but a gigantic sceene, middle finger/bright lights. If it causes a traffic snarl it permits limitations on timing and and loudness not content but that strictly relate to safety.
Ask if under the first amendment jurisprudence rubs against the legislation. If you try to move them out you are going to have to deal with the supreme court has delt with them in the past. Basis issues understand what the permissible zoning goals are and recognize where issues are and how they bumb into constitutional protections. Like the city of ladue and gallio- the principles in that case are what he is looking for.

- Resident sued city for permanent injunction to prohibit city from enforcing ordinance that banned all residential signs but those falling within one of ten exemptions. The United States District Court for the Eastern District of Missouri, 774 F.Supp. 1564, granted resident's motion for summary judgment. Following denial of city's motion to alter or amend judgment, 791 F.Supp. 240, resident filed application for prevailing party attorney fees and expenses. The District Court, 791 F.Supp. 238, granted motion. City appealed. The Court of Appeals, 986 F.2d 1180, affirmed as modified. Certiorari was granted. The Supreme Court, Justice Stevens, held that ordinance violated resident's free speech rights.

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CONTROLS ON HOUSEHOLD COMPOSITION-

Village of Belle Terre v. Borraas

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- Issue wheather the zoning ordinace was not constitutional.
o Two way to attack zoning ordinances
 Euclide attack- not doing what it is supposed to do
 May do what zoning ordinance are supposed to do but infringes on a constitutional right
- can you do this under a zoning ordinance? Why can you zone? Public welfare. 1st task is how limiting a family related to the welfare of the family?
- If the test is that it has to bear a rational relationship to one of these goals? How is this ok? Zoning rule can get some of the overcrowding. It can be over and under inclusive and it can be related to the goal.. The rational relationship test gets rid of some of the problem it is ok to enforce unless it is under strict scrutiny. In order for it to be irrational it has to have NO bearing on the goals.
- If it is unfair to meet just a minimal or max amount? Than it must answer the constitional violation of rights question. Privacy, association,

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CONTROLS ON HOUSEHOLD COMPOSITION-

Village of Belle Terre v. Borraas

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- Ct says what it is concerned about—racial discrimination- 1047 “The Supreme Court, Mr. Justice Douglas, held that the ordinance is not aimed at transients, involves no procedural disparity inflicted on some but not on others, involves no deprivation of any 'fundamental' right, bears a rational relationship to a permissible state objective, and must be upheld as valid land-use legislation addressed to family needs, notwithstanding claims that the ordinance is unconstitutional as violative of equal protection and rights of association, travel and privacy.
- Is it ok to discriminate economically under the federal constitution? Yes
- Marshall Dissent… what is the analysis and what result did he get to Marshall dissented, arguing that the “choice of household companions.. involved deeply personal considerations as to the kind and quality of intimate relationships within the home and was a constitutionally fundamental liberty. He also felt that the zoning law “can withstand constitutional scrutiny only upon a clear showing by the govt that the burden imposed is necessary to protect a compelling and substantial govt interest.

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What can you do? To limit family housing? Under Marshall and Boraas

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- Classification goes through this strict scruity test. 1051- people can get around the ordinance and create a dense population. It Is not narrowly tailored
- What could they do to create an openly inclusive test? Limit the number of adults and if they are related or not. Why let the number of children go? Can’t split families up? Limitation on people in how many sq feet that works because you don’t want overcrowding. Limit the cars and the traffic that could limit the adults that creates problems in the community. If marshall did win? What would that do to all these ordinances brothels?
- Has to be related and unrelated? If it is unhealthy for 7 unrelated to live then it must be unhealthy for 7 related. The thought is that you have to apply it evenly.

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Unrelated persons and state constitutions:

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- State constitutions can product a different result. Some state courts have construed their state constitution to protect the right of unrelated people to live together. These courts regard the concept of family as more functional than biological or legal; if people associate together exhibiting the characteristics of permanence and intimacy that traditionally id a unit as a family the association is a fundamental liberty and interest under the relevant state constitution.
- Some don’t view it any more generously than Bell v. Borraas
- States give more flexability and such…

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Statutory limits on zoning controls of household corporations

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- federal and state laws prohibit housing discrimination against people with handicaps and standards set out by the federal fair housing act.
- However, the mandates of this law can collide with local zoning laws limiting occupancy by unrelated people when handicapped people seek to live togther in group homes for various therapeutic purposes.

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Statutory limits on zoning controls of household corporations:

City of Edmunds v. Oxford House, Inc.

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- While the FHA prohibits discrimination against handicapped people, it exempts from that prohibition “reasonable local.. restrictions regarding the number of occupants permitted to occupy a dwelling
- The zoning code in Edmunds limited occupancy of single-family dwellings to any number of people “related by genetics, adoption, or marriage, or a group of five or fewer (unrelated) people.
- The US supreme cout interpreted the FHA to exempt only “total occupancy limits’ not occupany limits based on the familial composition of the household.
- Because the Edmunds law permitted an unlimited number of related people to live together in a single-family dwelling, and capped occupancy of such structures only when unrelated persons live together, the court ruled that the Edmonds law illegally discriminated against handicapped people when it was applied to bar occupancy by a group of 10 to 12 recovering alcoholics and drug addicts, living together uner the auspices of Oxford House, a substance abuse treatment program
- All that was litigated was are they entitled to the exemption? The 306 (b)1 absolute exemption. If they are entitled to the exemption they can discriminate on the basis race? But everything else they could.
- The statute was not drawn to prohibit exemption on this basis. This case does not add a lot.
- Does the family rule qualify for the exemption? You are not enititle to the exemption you still are only required to make reasonable accomocdations.
- You can’regulate density by defining family. If you are doing something to eliminate density that is permissible. If you are trying to promote family character that is a problem because that will single out these homes that are protected and that means that you are not entitled to the exemption.
- If your ordinace excludes one of theses you must apply a strict analysis.
o Notes: Difficult for cities to define single families in a way that it could impact these protected groups
o Essay: If single family housing exemption shows up. First ask if Enetitled to an Exemption? No then go over if it is doing what it is supposed to be doing is there a way to reasonably accommodation that can be make to respect that accommodation?

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Exclusionary Zoning:

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sometimes it is used to exclude unwanted people, though perhaps not for constitutionally or statutorily forbidden reasons. Example, in the interest of preserving open space, aesthetics, and high property values (with its corollary, a high tax base), requires a minimum lot size of 2 acres. The result is a landscape of expensive homes occupried by affluent owners. The poor are excluded. This exlusion does not trigger any presumption of invalidity uner the fed constitution. .States are free to interpret their own constitutions and enabling acts to ban actions permitted under the federal constitution.
- this is a state constitutional question. We know the feds say its ok..but our state constitution says not. Federal sets a floor. State raises the bar. Discrimination on the basis of economics? Yes almost all zoning would be declared under the federal constitution.

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Exclusionary Zoning:

Southern Burlington County Naacp v. Township of Mount Laurel

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- NJ township of Mt Laurel developed rapidly from 1950- 1970. It had a zoning law in effect excluded all multi-family residential dwellings and mobile homes, and required minimum lot and dwelling sizes for single family residences that were sufficiently large that low-income persons were effective exluded from MT. Laurel
- The court rules that the NJ constitution and the state’s zoning enabling act both required that local zoning further the “general welfare” and that Mt. Laurel’s failure to accommodate the housing needs of the poor people was contrary to the general welfare.
- The Cts opinion was that a developing community one expanding in size and population and thus taking shape, could not adopt land use regulations that make it “physically and economically impossible to provide low and moderate income housing in the municipality’” but must “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there.:
- Mt. Laurel’s efforts to comply were found wanting in Southern Burlington county NAACp v. Township of Mount Laurel in which the court extended the duty identified in Mout Laurel I to all NJ communities not just “developing” ones, increased the scope of that duty from simple removal of barriers to one requiring all communities to take active steps to accommodate its “fair share” of the poor, and introducted remedial devices to enable builders of low-income housing to construct such housing despite local refusal to permit construction
- MT L II impelled the NJ legislature to enact a statute that created an administrative agency to enforce the “fair share” obligation of MT Laurel II
- This remains to be the minority view. Most states hold that so long as zoning law does not exclude people on a suspect basis it need only be rationally related to a legitimate state interest to be valid. Thus, when minimum lot sizes are rationally related to a legitimate state interests, they are upheld
- The Mt L approach “produces great diversity within neighborhoods, but no diversity between neighborhoods, and thus may limit the variety of residential choices available to households.

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Laurel for the exam:

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- Several Interest groups representing various factions of the community.
- What would they have to do? Rezone and make it available for low income housing.
- Would require a data collection where is the population and where it is coming from
- Why do they zone like this? What is the main concern? They have a tax problem because the way schools are funded. Schools are the big issue because school are funded by local property taxes. What you can not control is costs. The more kids we have the bigger schools we have to have. The school districts are going to tax us unless we realize how dense the population is.
- Courts say it is legitimate to get concerned with taxes but that ends when you are keeping people with low income out.
- 1073- basis for this decision- a state notion of substantive due process and
- 1078- make the possibility for all people who desire to live there including low and modern and multi-family housing.
- Did it work? NO.. why? Typical with courts that are legislating the remedy that it imposes
Note 3- state law is an exclusionary basis for excluding things. They do not want to become the ultimate zoning board of appeals.
DON’T” MEMORIZE LAURAL as a standard. But understand that there is a broad base federal constitutional level and only goes so far. It needs to implicate fundamental rights either enumerated or through supstantive due process. The unconditional as applied like we have talked about. Beyond that we need to look at the states because the fed cons is very defferential cause you can even zone with regard to asethtics. The Fed govt and federal court enforcement is really defferential and if anything there has been an expansion.
- Think in terms of fundamental right- privacy association. Or a fundamental right to housing or education.
- Figure out where the issues have arrived? Look at those distinctions.

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Growth Controls:

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- They are either temporary stoppages or permanent limitations on the rate of new entrants
- These techniques have generally been upheld as within the authority conferred by the enabling act and as constitutionally valid exercises of that power, rationally related to the legitimate state interest of orderly growth