Zoning
Describe some things that would make a zoning ordinance valid
What is:
safety
maintaining property value
avoiding “unsavory” people
public welfare
Describe the 3 basic types of Common Interest Communities
What is:
- Condominium
- Cooperative
- Planned Subdivision
Define horizontal privity
What is:
between original covenanting parties
Define a grant and a reservation then give an example of both.
What is:
grant – given to another
A grants B an easement across A’s Blackacre for the benefit of B
reservation – kept for oneself
A grants Blackacre to B, reservation of easement for benefit of A
The noxious use doctrine constitutes
What is:
regulation limiting a public nuisance is not a taking
legislature should not be decided what constitutes noxious use, rather CL background principles determine what would have been prevented
if regulation achieves the same thing, then it’s not a taking
Define Amortization
What is:
– termination of land use nonconformity, time period for phasing out
within period, other attrition events can disqualify continued use (abandonment, nonuse, loss to fire/flood)
usually for NCUs, but not NCSs
Describe some of the duties of HOA's
What is:
Comply with laws and gov docs
Ordinary care and prudence in managing property and finances
Fair treatment of members
Reasonable exercise of discretion
Reasonable access to common property
Define Vertical Privity
What is:
between one of original covenanting parties and successor in interest
Describe the elements of a prescriptive easement
What is:
Adverse and hostile use
Open and notorious use
Continuous use
Use for the statutory period
does NOT include exclusive use
The Loretto physical taking rule constitutes
What is:
permanent physical occupation destroys the right to possess, exclude, use, dispose, thus constitutes a taking
Limited to physical occupation by govt or third party agents
Describe the Traditional Test of a variance
What is:
unique conditions of property (not created by owner)
make reasonable use impossible/impractical under strict conformity (due hardship)
variance only as much as needed to allow reasonable use
cannot alter essential character of area
Define the term "CCR's"
What are:
Covenants, Conditions, and Restrictions
Define Burden vs Benefit
What is:
Burden – covenant enforceable only against someone who has succeeded to the same estate as that of original promisor
covenantor
Benefit – promise enforceable by person who succeeds to original possessor’s same estate or to lesser interest carved out of that estate
covenantee, ability to enforce
Define Appurtenant and In gross
What is:
appurtenant – runs with the land, for both estates until terminated
gives the right to whomever owns a parcel of land that the easement benefits
usually transferable
in gross – to a particular person, runs with the servient estate
benefits the easement owner personally, does not benefit any land
transfer and division rules:
traditional – only commercial
modern – trend toward recreational too
Restatement – wide open
generally only express
one exception/type of implied in gross easement - family graveyard
The Penn Coal factors that determines what constitutes a taking
What is:
Economic impact of the regulation on the claimant
Extent to which regulation interferes with distinct investment backed expectations
Character of the governmental action
diminution in value standing alone not a compelling factor
Describe Village of Euclid v. Ambler Realty, and describe the holding
What is:
City adopted ordinance establishing comprehensive zoning plan, classes of use, height, and area districts; Pl alleged the ordinance was in derogation of 14th Amendment, depriving him of liberty/property without due process/EPC
Holding: ordinance constitutional
Justification for ordinance found in aspect of police power – asserted for public welfare, healthy, safety, morals
The factors under Nahrstedt that can impact a restriction
What is:
Unless restriction is:
Arbitrary
Imposes burdens on use of lands that substantially outweighs its benefits
Violates fundamental public policy
Define an equitable servitude
What is:
Covenant regarding use of land, enforceable against successive owners/possessors in equity regardless of enforceability at law
use of equity to bind successor without privity
Describe the elements necessary to display an irrevocable license
What is:
Permission by the landowner of another’s use of the land
aka license
Good faith reliance on the permission by the licensee
Landowner’s knowledge of such reliance
(or deemed knowledge because they reasonably should have known)
Murr's objective 3 part test
What is:
Treatment under state/local law
Physical characteristics
Value under challenged regulation – with special attention to effect of burdened land on value of other holdings
Describe the case that included improper intrusive regulation of the family
Moore v. City of East Cleveland
Moore lived in house with son and grandsons (cousins, not brothers); city ordinance limited occupancy to members of single family; ‘family’ defined as individual related to head of household including spouse, unmarried children, parents, limited number of additional dependent children
Holding: ordinance held unconstitutional
City argued to follow Belle Terre precedent
Here ordinance selected certain categories of relatives who may live together, improper intrusive regulation of the family
Supposed goals of preventing overcrowding, minimizing traffic/parking congestion, avoiding undue financial burden on schools were barely served
Describe the two standards of review for HOA decisions
What is:
Business judgment rule – highly deferential
Matters of money, managing property and finances, who to hire, etc
Reasonableness – less deferential
Whether to deny architectural request, more substantive policy-based decisions
Define the traditional factors of an equitable servitude and what is not required in an equitable servitude
What is:
SOF
or can be implied from common plan of development
Intent to bind
Touch and concern
Horizontal privity NOT required
Vertical privity NOT required
Notice
List every case regarding easements
What is:
Willard v. First Church of Christ – re third party reservation
Kienzle v. Myers – easement by estoppel
Van Sandt v. Royster – implied by prior use
Othen v. Rosier – necessity and prescription
Name every relevant taking case
Penn Coal, Loretto, Lucas, Palazzolo, Murr