WELCOME TO THE COURSEWELCOME TO THE COURSE

IF YOU THINK THAT THIS PICTURE LOOKS NORMAL

Or These Look OKOr These Look OK

Then You are Probably in the Right Then You are Probably in the Right ClassClass

MUCH OF THE MUCH OF THE INFORMATION IN THE INFORMATION IN THE COURSE IS ANNOYINGCOURSE IS ANNOYING

REGULATION IS ALL ABOUT REGULATION IS ALL ABOUT DIFFERENT OPINIONSDIFFERENT OPINIONS

Some Strong Opinions & Weird Some Strong Opinions & Weird PeoplePeople

Course GoalsCourse Goals

• Bring you “up to speed” on the legal, Bring you “up to speed” on the legal, ethical, and constitutional ethical, and constitutional requirements of planning practicerequirements of planning practice

• Help you understand the legal Help you understand the legal segment of Planning’s developmental segment of Planning’s developmental historyhistory

• Apply legal reasoning and due Apply legal reasoning and due process in regulatory practiceprocess in regulatory practice

Course RulesCourse Rules

• Cell phonesCell phones

• Preparation and case briefingPreparation and case briefing

• When class startsWhen class starts

• Office hoursOffice hours

• Submitting material – formatsSubmitting material – formats

• Course requirements – next pageCourse requirements – next page

• GradesGrades

ResourcesResources

• MandelkerMandelker

• Selected Readings on WebsiteSelected Readings on Website

• HandoutsHandouts

• Lexis/NexusLexis/Nexus

• Legal DisctionaryLegal Disctionary

Course RequirementsCourse Requirements

• Briefing and reciting cases by Briefing and reciting cases by “presenting your case.”“presenting your case.”

• Completing the required assignment Completing the required assignment exercisesexercises

• Mid term and final examMid term and final exam

• Show up on timeShow up on time

Student Work – Being Student Work – Being HonestHonest

CONSTITUTIONAL LAW AND CONSTITUTIONAL LAW AND PROPERTY RIGHTSPROPERTY RIGHTS

• DUE PROCESSDUE PROCESS

• EQUAL PROTECTIONEQUAL PROTECTION

• TAKINGS – THE 5TAKINGS – THE 5THTH AMENDMENT AMENDMENT

• THE 1THE 1STST AMENDMENT – SPEECH AND AMENDMENT – SPEECH AND RELIGIONRELIGION

THE 14THE 14thth AMENDMENT AMENDMENT

Procedural DueProcess

Substantive Due Process

Equal Protection

Substantive Due ProcessSubstantive Due Process

• Confusion In MeaningConfusion In Meaning

• A land use regulation must advance A land use regulation must advance a legitimate state interesta legitimate state interest

• Ultra vires Ultra vires

• State must show that a less State must show that a less restrictive alternative is not availablerestrictive alternative is not available

Procedural Due ProcessProcedural Due Process

• The basic idea of fundamental fairnessThe basic idea of fundamental fairness

• Reasonableness – not arbitrary or Reasonableness – not arbitrary or without carefully considered applicationwithout carefully considered application

• Overbreath and underbreathOverbreath and underbreath

• Unfair such as lack of noticeUnfair such as lack of notice

• Overt disdain by government authorityOvert disdain by government authority

• Decisions not based on a factual recordDecisions not based on a factual record

Equal ProtectionEqual Protection

• Requires that people who are similarly Requires that people who are similarly situated or a member of a protected situated or a member of a protected class be treated equally unless there class be treated equally unless there is a compelling state reason for doing is a compelling state reason for doing otherwiseotherwise

• Three tiers of scrutiny: reasonable Three tiers of scrutiny: reasonable relationship; substantial relation; strict relationship; substantial relation; strict scrutiny with compelling relationshipscrutiny with compelling relationship

The 5The 5thth Amendment Amendment

• Nor shall any person be deprived on Nor shall any person be deprived on life, liberty, or property without due life, liberty, or property without due process of law, nor shall private process of law, nor shall private property be taken for public use property be taken for public use without just compensationwithout just compensation

• KEY CONCEPTS – What is Property, KEY CONCEPTS – What is Property, Due Process, Just Compensation and Due Process, Just Compensation and Public UsesPublic Uses

“Nor shall private property be taken except for a public

use.”

11stst Amendment Amendment

• Congress shall make no law Congress shall make no law respecting an establishment of respecting an establishment of religion, or prohibiting the free religion, or prohibiting the free exercise thereof; or abridging the exercise thereof; or abridging the freedom of speech; or the right of the freedom of speech; or the right of the people to peaceably assemble, and people to peaceably assemble, and to petition the government for a to petition the government for a redress of grievances.redress of grievances.

Speech and the 1Speech and the 1stst Amendment for PlannersAmendment for Planners

• What is speech? Are some forms of What is speech? Are some forms of speech more protected than others? speech more protected than others? Does speech have special qualities. Does speech have special qualities. Can conduct be speech? Is a symbol, Can conduct be speech? Is a symbol, such as a sign actually a form of such as a sign actually a form of speech?speech?

• Signage as Speech – Time, Manner, Signage as Speech – Time, Manner, and Place!and Place!

SHOULD THERE BE A LAW SHOULD THERE BE A LAW AGAINST THIS TYPE OF AGAINST THIS TYPE OF SPEECH?SPEECH?

Does the 1Does the 1stst Amendment Amendment Protect This Type of Sign?Protect This Type of Sign?

WHAT ABOUT LAWS WHAT ABOUT LAWS AGAINST THIS TYPE OF AGAINST THIS TYPE OF ACTIVITY?ACTIVITY?

Special Introductory Terms Special Introductory Terms for Planning Lawfor Planning Law• Easement – A right held by a person on the land Easement – A right held by a person on the land

of another.of another.

LOT A LOT B

EstoppelEstoppel

• Estoppel - Estoppel - A rule of law that when person A, A rule of law that when person A, by act or words, gives person B reason to by act or words, gives person B reason to believe a certain set of facts upon which believe a certain set of facts upon which person B takes action, person A cannot person B takes action, person A cannot later, to his (or her) benefit, deny those later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was facts or say that his (or her) earlier act was improper. A 1891 English court decision improper. A 1891 English court decision summarized estoppel as "a rule of evidence summarized estoppel as "a rule of evidence which precludes a person from denying the which precludes a person from denying the truth of some statement previously made by truth of some statement previously made by himselfhimself

Planning Law TermsPlanning Law Terms

• STARE DECISISSTARE DECISIS - - A basic principle of A basic principle of the law whereby once a decision on the law whereby once a decision on a certain set of facts has been a certain set of facts has been made, the courts will apply that made, the courts will apply that decision in cases which decision in cases which subsequently come before it subsequently come before it embodying the same set of facts. A embodying the same set of facts. A precedent which is binding; must precedent which is binding; must be followedbe followed

Terms For Planning LawTerms For Planning Law

• UsufructUsufruct - - From ancient Roman law From ancient Roman law (and now a part of many civil law (and now a part of many civil law systems), "usufruct" means the systems), "usufruct" means the rights to the product of another's rights to the product of another's property. For example, a farmer property. For example, a farmer may give a right of "usufruct" of may give a right of "usufruct" of his land to a neighbor, thus his land to a neighbor, thus enabling that neighbor to sow and enabling that neighbor to sow and reap the harvest of that landreap the harvest of that land

Planning Law TermsPlanning Law Terms

• RES JUDICATARES JUDICATA - - A matter which A matter which has already been conclusively has already been conclusively decided by a court.decided by a court.

Concepts of Property LawConcepts of Property Law

• Concept of a SovereignConcept of a Sovereign– ImmunityImmunity– All Property right derived fromAll Property right derived from– Blackstone’s DictumBlackstone’s Dictum– Constitution prevents abuse by the Constitution prevents abuse by the

sovereignsovereign– Sovereign has “presumption of validity”Sovereign has “presumption of validity”

Property LawProperty Law

• Property is a bundle of rightsProperty is a bundle of rights

• Appropriable and valueAppropriable and value

• A right to material things – not personal A right to material things – not personal libertiesliberties

• It is exclusive not inclusiveIt is exclusive not inclusive

• Can be held exclusively, jointly, or in Can be held exclusively, jointly, or in commoncommon

• It is an attribute of people – there is no It is an attribute of people – there is no “bird’s cage”“bird’s cage”

Rights In PropertyRights In Property

Development Right

Mineral Right

Profit Travel Easement

Air Right

Conservation Easement

Surface Estate

The Development RightThe Development Right

Property RequiresProperty Requires

• An owner – together with others that An owner – together with others that can be excludedcan be excluded

• Actual property objects that can be Actual property objects that can be held in possession – thus riparian held in possession – thus riparian rights are not in possessionrights are not in possession

• A sovereign that will sanction and A sovereign that will sanction and limit the access of otherslimit the access of others

Types of EstatesTypes of Estates

• FeeFee

• Fee Conditional or qualified feeFee Conditional or qualified fee

• Life estatesLife estates

Other Forms of PropertyOther Forms of Property

• Equitable ServitudesEquitable Servitudes

• Easements – appurtenant / grossEasements – appurtenant / gross– Negative and positiveNegative and positive

• CovenantsCovenants– Touch and concern the law and reasonableTouch and concern the law and reasonable– Further aim of some social policyFurther aim of some social policy– Clearly describes benefits and burdensClearly describes benefits and burdens– Changed conditions and rule again a perpetual Changed conditions and rule again a perpetual

contractcontract

Contract As PropertyContract As Property

• A Contract must:A Contract must:– Mutual AgreementMutual Agreement - Fundamental concept; - Fundamental concept;

offer and acceptanceoffer and acceptance are essential to all are essential to all contracts. Offer and acceptance are normally contracts. Offer and acceptance are normally made by words, but sometimes they may be made by words, but sometimes they may be unspoken and indicated by an action, or by the unspoken and indicated by an action, or by the acceptance of and action. Mutual agreement acceptance of and action. Mutual agreement must be based on free assent without duress must be based on free assent without duress or undue influence. Informed consent, in the or undue influence. Informed consent, in the fullest possible meaning of the word, is also an fullest possible meaning of the word, is also an essential element of mutual agreement essential element of mutual agreement

ContractContract

• Offer and AcceptanceOffer and Acceptance - The natural - The natural expression of mutual agreement and, as expression of mutual agreement and, as such, both the offer and the acceptance such, both the offer and the acceptance must be identical as to their substance. must be identical as to their substance. There must be real and complete There must be real and complete agreement between the parties at agreement between the parties at contract. Offers may be withdrawn prior to contract. Offers may be withdrawn prior to acceptance - but once accepted, the offer acceptance - but once accepted, the offer cannot be withdrawn because it has been cannot be withdrawn because it has been changed by its acceptance into a contractchanged by its acceptance into a contract

ContractContract

• CapacityCapacity - Capacity of the parties at contract - Capacity of the parties at contract refers to the competency of the individuals (or refers to the competency of the individuals (or groups) making the agreement. Parties refers to groups) making the agreement. Parties refers to human persons and corporations. Certain statutes human persons and corporations. Certain statutes restrict the capacity of a person to contract: i.e., restrict the capacity of a person to contract: i.e., minors, felons, mentally challenged, etc. minors, felons, mentally challenged, etc. Relationship is also an element of capacity. For Relationship is also an element of capacity. For instance, my relationship to Kansas State instance, my relationship to Kansas State University as an employee does not entitle me to University as an employee does not entitle me to contract for the University. On the other hand, the contract for the University. On the other hand, the law entitles 3rd parties (know as agents or a law entitles 3rd parties (know as agents or a person having the power of attorney, or a person having the power of attorney, or a guardian) to contract for anotherguardian) to contract for another

ContractContract

• ConsiderationConsideration - - Consideration is something of value Consideration is something of value given by one party to a contract to the second party in given by one party to a contract to the second party in exchange for something else. Thus, consideration must also exchange for something else. Thus, consideration must also flow both ways for a valid contract. flow both ways for a valid contract. Consideration is a complex subject, full of shades of Consideration is a complex subject, full of shades of meaning. For example, assume that you have a property meaning. For example, assume that you have a property right to cut the timber on the land of another person right to cut the timber on the land of another person (profit`) which, in this case, would be termed a contract for (profit`) which, in this case, would be termed a contract for timber interest with an assumed easement of access. timber interest with an assumed easement of access. Suppose a third person owns adjacent property. This person Suppose a third person owns adjacent property. This person promises to pay you more than the value of the timber promises to pay you more than the value of the timber because they wish to retain the trees for screening. If you because they wish to retain the trees for screening. If you agree, the contract with the 3rd party would create an agree, the contract with the 3rd party would create an equitable servitude binding both parties (you and the third equitable servitude binding both parties (you and the third party) to a form of considerationparty) to a form of consideration

ContractContract

• ObjectObject - The object or purpose of a - The object or purpose of a contract must be lawful and contract must be lawful and enforceable; and, the object must be enforceable; and, the object must be carried out in a way that is carried out in a way that is customarily understoodcustomarily understood

ContractContract

• TimeTime - - The concept of time (and duties carried out The concept of time (and duties carried out within that time) is the essence of a contract. If the within that time) is the essence of a contract. If the object of the contract is not carried out within the object of the contract is not carried out within the agreed upon time frame, then there is a breach and agreed upon time frame, then there is a breach and the other party may seek civil enforcement and the other party may seek civil enforcement and penalties. For planners, time is very important. Most penalties. For planners, time is very important. Most property related contracts (restrictions and covenants property related contracts (restrictions and covenants are intended to run for very long periods of time. The are intended to run for very long periods of time. The law cannot look favorably on contracts that "run law cannot look favorably on contracts that "run forever" or that bind "successive heirs and owners forever" or that bind "successive heirs and owners forever." Therefore, property contracts must be forever." Therefore, property contracts must be renewed at regular intervals - e.g. 10, 15, 20, or 25 renewed at regular intervals - e.g. 10, 15, 20, or 25 years – for example.years – for example.

Underpinning of PropertyUnderpinning of Property

• Real Property is Real Property is anything to which this anything to which this label may be attached:label may be attached:

“ “ TO THE WORLD –TO THE WORLD –

Keep off X unless you Keep off X unless you have my permission have my permission which I may grant or which I may grant or withholdwithhold

SignedSigned

My Property – Your PropertyMy Property – Your Property

• A man was hired to clean an old pool A man was hired to clean an old pool and fountain. When doing so, he found and fountain. When doing so, he found an antique ring that was very valuable. an antique ring that was very valuable. The city demanded that the ring be The city demanded that the ring be returned. The man refused to do so. He returned. The man refused to do so. He said that possession is nine tenths of said that possession is nine tenths of the law. To whom does the ring belong?the law. To whom does the ring belong?

Three Key Rights to Three Key Rights to PropertyProperty• The right to possession of the thingThe right to possession of the thing• The right to the use of the thingThe right to the use of the thing• The right to alienate or otherwise dispose The right to alienate or otherwise dispose

of the thingof the thing

• In other words – the right of possession In other words – the right of possession and use is another way of saying that we and use is another way of saying that we have the right to exclude all others from have the right to exclude all others from using that thing.using that thing.

Theories of Property and Theories of Property and Land TenureLand Tenure

• Absolute Doctrine (Roman)Absolute Doctrine (Roman)

• Qualified Doctrine (Roman)Qualified Doctrine (Roman)The Roman jurists were too vividly conscious of the principle Salus publica suprema lex to exempt private property from all legal restrictions. No clearer proof is needed than the numerous easements to which the Roman law subjected property

Qualified Doctrine ----Qualified Doctrine ----

• Thus the French civil code (544) defines ownership Thus the French civil code (544) defines ownership as "the right to make use and dispose of a corporeal as "the right to make use and dispose of a corporeal thing absolutely provided it be not forbidden by law thing absolutely provided it be not forbidden by law or statute"; the code of the German Empire (903) or statute"; the code of the German Empire (903) says: "The proprietor of a thing may use it as he says: "The proprietor of a thing may use it as he likes and exclude from it all outside interference, as likes and exclude from it all outside interference, as long as the law or the rights of others are not long as the law or the rights of others are not violated" and in Blackstone (Comm. I, 138) we read violated" and in Blackstone (Comm. I, 138) we read that the right of property "consists in the free use, that the right of property "consists in the free use, enjoyment and disposal of all acquisitions, without enjoyment and disposal of all acquisitions, without any control or diminution, save only by the laws of any control or diminution, save only by the laws of the land". the land".

Less Than FeeLess Than Fee

• The doctrine of holding parts of landThe doctrine of holding parts of land

• Constitutional DoctrinesConstitutional Doctrines

• Mature and Modified DoctrinesMature and Modified Doctrines

• Stewardship DoctrinesStewardship Doctrines

• Public utility and interest doctrines Public utility and interest doctrines such as Land Care, The Queen’s Chain such as Land Care, The Queen’s Chain and All Men's Rights in the Nordic Law.and All Men's Rights in the Nordic Law.

Alternative DoctrinesAlternative Doctrines

• Marxist and Modified MarxistMarxist and Modified Marxist• Nomadic or Tribal SocietyNomadic or Tribal Society• Humanistic doctrines such as “Gaia”Humanistic doctrines such as “Gaia”The name "The name "GaiaGaia" has been popularised by " has been popularised by

James Lovelock, the propounder of the James Lovelock, the propounder of the "Gaia Hypothesis".  This is the theory that "Gaia Hypothesis".  This is the theory that the entire Earth is a single living the entire Earth is a single living superorganism, the various components superorganism, the various components of which - organic and non-organic - of which - organic and non-organic - interact in such a way as to maintain an interact in such a way as to maintain an environment in which life can exist.environment in which life can exist.

Case CitationsCase Citations

• Keller v Hays, 345 U.S. 292 (1989) Keller v Hays, 345 U.S. 292 (1989) Supreme Court/Official Reporter (gov)Supreme Court/Official Reporter (gov)

• Keller v Hays, 1123 Sp. Ct. 234 (1991) Keller v Hays, 1123 Sp. Ct. 234 (1991) Supreme Court/Commercial ReporterSupreme Court/Commercial Reporter

• Keller v. Hays, 661 F.2d 777 (1992) U.S. Keller v. Hays, 661 F.2d 777 (1992) U.S. Circuit Ct. of Appeals Reporter (gov)Circuit Ct. of Appeals Reporter (gov)

• Keller v Hays, 1135 F. Supp. 221 (1993) Keller v Hays, 1135 F. Supp. 221 (1993) US District Court Reporter (gov)US District Court Reporter (gov)

Case CitationsCase Citations

• Keller v Hays, 290 A.2d 899 (1991) Keller v Hays, 290 A.2d 899 (1991) Regional Reporter/Commercial AtlanticRegional Reporter/Commercial Atlantic

• Keller v Hays, 290 N.E.2d 899 (1991) Keller v Hays, 290 N.E.2d 899 (1991) Regional Reporter/Commercial PacificRegional Reporter/Commercial Pacific

• Keller v Hays, 290 N.W.2d 899 (1991) Keller v Hays, 290 N.W.2d 899 (1991) Regional Reporter/Commercial North EastRegional Reporter/Commercial North East

• Keller v Hays, 290 So.2d 899 (1991) Keller v Hays, 290 So.2d 899 (1991) Regional Reporter/Commercial SouthernRegional Reporter/Commercial Southern

• Keller v Hays, 290 S.E.2d 899 (1991) Keller v Hays, 290 S.E.2d 899 (1991) Regional Reporter/Commercial SoutheastRegional Reporter/Commercial Southeast

Case CitationsCase Citations

• Keller v Hays, 290 AZ.2d 899 (1991) Keller v Hays, 290 AZ.2d 899 (1991) Arizona State Reporter/Supreme Arizona State Reporter/Supreme Court (gov)Court (gov)

• Keller v Hays, 290 MO.2d 899 (1991) Keller v Hays, 290 MO.2d 899 (1991) Missouri Reporter/Supreme Court Missouri Reporter/Supreme Court (gov)(gov)

• Keller v Hays, 290 Kan. App. 2d 899 Keller v Hays, 290 Kan. App. 2d 899 (1991) Kansas Ct. Appeals Reporter (1991) Kansas Ct. Appeals Reporter (gov)(gov)

Case CitationsCase Citations

• Parallel Citation - ExampleParallel Citation - Example

• Keller v Hays, 411 U.S. 899 Keller v Hays, 411 U.S. 899 (1991); Hays v Keller, 1124 F.2d (1991); Hays v Keller, 1124 F.2d 765 (1989); Keller v Hays, 134 765 (1989); Keller v Hays, 134 Kan 899 (1987)Kan 899 (1987)

• Keller v Hays, 567 P.2d 661; 134 Keller v Hays, 567 P.2d 661; 134 Kan. 899 (1997)Kan. 899 (1997)

Principles of Zoning Principles of Zoning LitigationLitigation• STANDING – This is both a baseline and STANDING – This is both a baseline and

a threshold principle.Only persons a threshold principle.Only persons standing directly in the chain of benefit standing directly in the chain of benefit and burden may gain standing before a and burden may gain standing before a court.Standing can vary considerably. court.Standing can vary considerably. Class action cases have low thresholds. Class action cases have low thresholds. 11stst Amendment question moderate Amendment question moderate thresholds, and annexation cases have thresholds, and annexation cases have very high thresholds.very high thresholds.

Principles IIPrinciples II

• AGGRIEVED – Courts can only offer real AGGRIEVED – Courts can only offer real solutions or remedies. A claim of harm, in solutions or remedies. A claim of harm, in and of itself, is not sufficient to gain and of itself, is not sufficient to gain standing. Harm must be demonstrable and standing. Harm must be demonstrable and likely, not remote or vague. We are all likely, not remote or vague. We are all benefited in one way or another by the benefited in one way or another by the actions of government.But this harm must actions of government.But this harm must be imminent and personal resulting from an be imminent and personal resulting from an unreasonable or arbitrary action of unreasonable or arbitrary action of governmentgovernment

Principles IIIPrinciples III

• TIMELINESS – Nearly all law sets some TIMELINESS – Nearly all law sets some type of time limit for bringing an action type of time limit for bringing an action to court.A threat of legal action places to court.A threat of legal action places a burden and a cloud over future a burden and a cloud over future actions.This cloud should be allowed to actions.This cloud should be allowed to remain only for a limited amount of remain only for a limited amount of time. In Kansas, we have 30 days after time. In Kansas, we have 30 days after a final action to file a law suit under a final action to file a law suit under the Planning and Zoning Statues.the Planning and Zoning Statues.

Principles IVPrinciples IV

• RIPENESS – This is a fundamental RIPENESS – This is a fundamental question in land use suits. A question question in land use suits. A question cannot be adjudicated until it is ripe. cannot be adjudicated until it is ripe. And, and question is not ripe until the And, and question is not ripe until the government has reached a final government has reached a final decision and the applicant has decision and the applicant has exhausted all administrative remedies.exhausted all administrative remedies.

..

U.S. Court SystemU.S. Court System

U.S. Supreme Court

Circuit Court of Appeals

11 + 3 Circuits

U.S. District Courts

The State Supreme Court

State Court of Appeals

District or Superior Courts

Historical Background 198 Historical Background 198 U.S. 45 1905U.S. 45 1905• LOCHNER v NEW YORKLOCHNER v NEW YORK

– The limitation of employment in The limitation of employment in bakeries to 60 hours per week and 10 bakeries to 60 hours per week and 10 hours per day is an arbitrary hours per day is an arbitrary interference with the constitutional interference with the constitutional guarantee to contract (14guarantee to contract (14thth Amendment) which cannot be Amendment) which cannot be sustained as a valid exercise of the sustained as a valid exercise of the police power by the State of New Yorkpolice power by the State of New York

Lochner BasicsLochner Basics

• The owner of a Utica bakery was fined for The owner of a Utica bakery was fined for "wrongfully and unlawfully requiring an "wrongfully and unlawfully requiring an employee to weak more than 60 hours per employee to weak more than 60 hours per week. Upon the second conviction, the bakery week. Upon the second conviction, the bakery owner was fined owner was fined $50/or $50/or 30 days. His conviction 30 days. His conviction was upheld by the New York Court of Appeals was upheld by the New York Court of Appeals and the New York Supreme Court The and the New York Supreme Court The conviction was in reference to a New York conviction was in reference to a New York State law requiring all bakeries to comply with State law requiring all bakeries to comply with the rule that employees could work no more the rule that employees could work no more than 60 hours per week and 10 hours per day than 60 hours per week and 10 hours per day labor.labor.

The Police PowerThe Police Power

• The State of New York reasons that it has the power The State of New York reasons that it has the power (police power) to prevent an individual from making (police power) to prevent an individual from making certain kinds of contracts if in fact such labor certain kinds of contracts if in fact such labor contract would endanger the heath, safety, and contract would endanger the heath, safety, and welfare of such individual The baking of bread and welfare of such individual The baking of bread and other confections is a strenuous task. Bakery hours other confections is a strenuous task. Bakery hours for employees customarily begin at very early hours for employees customarily begin at very early hours of the morning and continue until past supper. of the morning and continue until past supper. Conditions are also strenuous; heat and flour dust, Conditions are also strenuous; heat and flour dust, heavy loads, and dangerous machine are always heavy loads, and dangerous machine are always present Heat is always a problem requiring present Heat is always a problem requiring employees to work (generally) without shirts or employees to work (generally) without shirts or headgear - thus calling into question the sanitary headgear - thus calling into question the sanitary conditions of the work environment. conditions of the work environment.

Justice PeckhamJustice Peckham

The DecisionThe Decision

• The Supreme Court notes that it The Supreme Court notes that it already approved many uses of the already approved many uses of the police power for the protection of the police power for the protection of the public. It upheld a requirement that all public. It upheld a requirement that all teachers in public school be vaccinated teachers in public school be vaccinated for certain diseases; that states can for certain diseases; that states can require most businesses to close on require most businesses to close on Sundays (the Blue Laws), and an eight Sundays (the Blue Laws), and an eight hour work day for employees of hour work day for employees of smelters and coke ovens.smelters and coke ovens.

Fair DoubtFair Doubt

• The court feels that the limit of The court feels that the limit of the police power has been the police power has been reached in this case. "It is reached in this case. "It is manifest to us," Peckhan’ notes," manifest to us," Peckhan’ notes," that the limitation of hours has that the limitation of hours has no direct relationship to, and no no direct relationship to, and no substantial effect on, the health substantial effect on, the health of the employee."of the employee."

Peckhan SaysPeckhan Says

• "We think that there can be no fair doubt "We think that there can be no fair doubt that the trade of a baker, in and of itself is that the trade of a baker, in and of itself is not an unhealthy to that degree which would not an unhealthy to that degree which would authorize the legislature to interfere with authorize the legislature to interfere with the right to labor, and with the right of free the right to labor, and with the right of free contract on the part of the individual." ... It contract on the part of the individual." ... It might be safely affirmed that almost all might be safely affirmed that almost all occupations more or less affect the health of occupations more or less affect the health of the individual. There must be more than the the individual. There must be more than the fact of the possible existence of some small fact of the possible existence of some small amount of unhealthinessamount of unhealthiness

Peckhan’s ConclusionPeckhan’s Conclusion

• "In our judgment it is not possible in fact to "In our judgment it is not possible in fact to discover the connection between the number discover the connection between the number of hours a baker may work in the bakery and of hours a baker may work in the bakery and the healthful quality of the bread made by the healthful quality of the bread made by the workman. The connection, if any exists, the workman. The connection, if any exists, is too shadowy and thin to build any is too shadowy and thin to build any argument for the interference of legislature. argument for the interference of legislature. If a man works 1O hours a day, it is alright - If a man works 1O hours a day, it is alright - but 10 1/2 or 11 hours his health is in danger but 10 1/2 or 11 hours his health is in danger and his bread may be unhealthy, and, and his bread may be unhealthy, and, therefore he shall not be permitted to do so. therefore he shall not be permitted to do so. This, we think, is unreasonable and entirely This, we think, is unreasonable and entirely arbitrary.arbitrary.

Justice Harlan DissentsJustice Harlan Dissents

• Harlan says that he finds it impossible to say Harlan says that he finds it impossible to say that there is no real or substantial relation that there is no real or substantial relation between the means employed nor does he say between the means employed nor does he say that the statutes has no appropriate or direct that the statutes has no appropriate or direct connection to the health that each state owes it connection to the health that each state owes it citizens; still less can he say that the statute is, citizens; still less can he say that the statute is, beyond question, an arbitrary and palpable beyond question, an arbitrary and palpable invasion of rights secured by fundamental law. invasion of rights secured by fundamental law. In fact, Harlan’s reading of the background In fact, Harlan’s reading of the background indicates to him that the health of bakery indicates to him that the health of bakery workers is very much in question -they have workers is very much in question -they have constant eye infections and bronchial congestion constant eye infections and bronchial congestion because of the ever present flour dustbecause of the ever present flour dust

Justice Holmes DissentsJustice Holmes Dissents

• "This case is decided upon a economic theory "This case is decided upon a economic theory which a large part of the country does not which a large part of the country does not entertain. if it were a question whether I entertain. if it were a question whether I agreed with that theory, I should desire to agreed with that theory, I should desire to study it further and long before making up my study it further and long before making up my mind. But, I do not conceive that to be my mind. But, I do not conceive that to be my duty, because I strongly believe that my duty, because I strongly believe that my argument or disagreement has nothing to do argument or disagreement has nothing to do with the right of the people to embody their with the right of the people to embody their opinions in law. The 14th Amendment does not opinions in law. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statistics."enact Mr. Herbert Spencer’s Social Statistics."

Holmes ConcludesHolmes Concludes

• Holmes says that the Constitution does not embody Holmes says that the Constitution does not embody a particular economic theory. It is made for people of a particular economic theory. It is made for people of fundamentally different views, and the accident of fundamentally different views, and the accident of finding certain opinions novel or shocking, ought not finding certain opinions novel or shocking, ought not to influence the Court on the question of police to influence the Court on the question of police power legislation.power legislation.

• Holmes uses his reasonable man test and says that Holmes uses his reasonable man test and says that men, who he would not call unreasonable, would men, who he would not call unreasonable, would uphold the law as the first installment of a general uphold the law as the first installment of a general regulation on the hours of work.regulation on the hours of work.

Cast of CharactersCast of Characters

• Holmes – some of the best and one of the Holmes – some of the best and one of the worst casesworst cases

• Taft is appointed Chief JusticeTaft is appointed Chief Justice• Justice Brandeis comes to the benchJustice Brandeis comes to the bench• Now enters Justice SutherlandNow enters Justice Sutherland

– Senator from UtahSenator from Utah– Extreme conservativeExtreme conservative– But an enigma who refuses rights to long But an enigma who refuses rights to long

suffering nurses but a prime mover in the 18th suffering nurses but a prime mover in the 18th amendmentamendment

The CharactersThe Characters

Sutherland

Brandeis

HolmesTaft

After LochnerAfter Lochner

• The American Planning Association is The American Planning Association is formedformed

• Roosevelt, Darling and others begin the Roosevelt, Darling and others begin the Parks and Conservation MovementParks and Conservation Movement

• Benjamin Marsh visits Europe and reports Benjamin Marsh visits Europe and reports back on ZONINGback on ZONING

• New York City (1913) appoints a study New York City (1913) appoints a study committee to consider the adoption of a committee to consider the adoption of a zoning ordinancezoning ordinance

Before the First World WarBefore the First World War

• In 1916 New York City adopts the first In 1916 New York City adopts the first comprehensive zoning ordinancecomprehensive zoning ordinance

• The ordinance balanced:The ordinance balanced:– Use restrictionsUse restrictions– HeightsHeights– Lot coverage (FAR’s)Lot coverage (FAR’s)

• Density restrictions were very liberal. If they Density restrictions were very liberal. If they would have carried through, NYC could have would have carried through, NYC could have contained a pop. of 55 million. And, a little contained a pop. of 55 million. And, a little side note on the social implications of the side note on the social implications of the ordinance.ordinance.

The Heart of the NYC The Heart of the NYC OrdinanceOrdinance

• The Zones and DistrictsThe Zones and Districts

• The Use restrictionsThe Use restrictions

• The Planning CommissionThe Planning Commission

• The Role of the Governing BodyThe Role of the Governing Body

• The Board of Adjustment (Appeals)The Board of Adjustment (Appeals)

• AND, the PlanAND, the Plan

Copy of New York Zoning Map Copy of New York Zoning Map – updated in the 1960s– updated in the 1960s

Following the NYC Following the NYC OrdinanceOrdinance• After enactment, the ordinance is After enactment, the ordinance is

challenged in district court but there is no challenged in district court but there is no follow up appealfollow up appeal

• The League of Municipalities supports the The League of Municipalities supports the zoning idea and 100’s of town begin a zoning idea and 100’s of town begin a process of adoption.process of adoption.

• The Supreme Court continues on its The Supreme Court continues on its rampage against police power regulationsrampage against police power regulations

Six Years After the AdoptionSix Years After the Adoption

• More than 1,000 municipalities now More than 1,000 municipalities now have zoning codes and most states have zoning codes and most states have passed enabling legislation have passed enabling legislation (Kansas in 1920)(Kansas in 1920)

• The Pennsylvania Coal v Mahon case The Pennsylvania Coal v Mahon case foreshadows a possible future for foreshadows a possible future for zoningzoning

Into The Decade of the Into The Decade of the 1920’s1920’s

• The Village of Euclid, Ohio – a suburb The Village of Euclid, Ohio – a suburb of Cleveland adopts its first plan and of Cleveland adopts its first plan and zoning regulationszoning regulations

Act 1 – Scene 1Act 1 – Scene 1

• Immediate controversy arises Immediate controversy arises between Euclid and Amber Realty between Euclid and Amber Realty Company over the zoning on a Company over the zoning on a certain tractcertain tract

Ambler’s LandAmbler’s Land

U-2 Single family homes, parks and two family homes

U-3 all U-2 plus apartments, hotels, schools, hospitals

U-6 all lower uses and manufacturing & other heavy

uses

Scene IIScene II

• Ambler sues Euclid for an arbitrary Ambler sues Euclid for an arbitrary and unreasonable classification of and unreasonable classification of their land andtheir land and– Deprives Ambler of the use of their land Deprives Ambler of the use of their land

without due process of lawwithout due process of law– Reduces the value of the land without Reduces the value of the land without

compensationcompensation– From $10,000 to about 2,500 per acreFrom $10,000 to about 2,500 per acre

Act II – Enter SutherlandAct II – Enter Sutherland

• Sutherland is selected to write the Sutherland is selected to write the majority opinion of the courtmajority opinion of the court

• Counsel for Ambler Realty is Newton D. Counsel for Ambler Realty is Newton D. Baker – former Sec. Of War.Baker – former Sec. Of War.

• Counsel for the defense is Howard Counsel for the defense is Howard MetzenbaumMetzenbaum

• Case is argued before the Supreme Court Case is argued before the Supreme Court and then re-argued 10 months laterand then re-argued 10 months later

Scene ThreeScene Three

• First question – Is the case ripe for First question – Is the case ripe for appeal since Ambler never applied appeal since Ambler never applied for a building permit?for a building permit?

• Sutherland disregards and says that Sutherland disregards and says that the ordinance on its own force the ordinance on its own force operates greatly to reduce the value operates greatly to reduce the value of the property since it cannot be of the property since it cannot be used for industrial purposesused for industrial purposes

Arbitrary and CapriciousArbitrary and Capricious

• Second question – Is the ordinance Second question – Is the ordinance invalid because the list of permitted invalid because the list of permitted and excluded uses may contain some and excluded uses may contain some that are not dangerous or offensive.that are not dangerous or offensive.

• Sutherland says that the inclusion of Sutherland says that the inclusion of a reasonable margin will not a reasonable margin will not invalidate because it is unreasonable invalidate because it is unreasonable and arbitraryand arbitrary

Not A Real CityNot A Real City

• Question 3 – Euclid is a mere suburb of Question 3 – Euclid is a mere suburb of Cleveland – how can it stop the natural Cleveland – how can it stop the natural forces of industrial developmentforces of industrial development

• Sutherland says that the Village is a Sutherland says that the Village is a separate entity and that it is not separate entity and that it is not attempting to stop expansion but attempting to stop expansion but channel it to fixed paths and proper channel it to fixed paths and proper zoneszones

Rats, Loiterers, MalodorRats, Loiterers, Malodor

• Question 4 – Is it not arbitrary to exclude Question 4 – Is it not arbitrary to exclude all other uses, including businesses for all other uses, including businesses for residential zones?residential zones?

• Sutherland says it may help to prevent Sutherland says it may help to prevent disastrous fires, keep malingerers out of disastrous fires, keep malingerers out of neighborhoods, save women and children neighborhoods, save women and children from criminals and prevent rats, flies, and from criminals and prevent rats, flies, and vermin from contaminating homes, vermin from contaminating homes, prevent nervous disorders.prevent nervous disorders.

Mere ParasitesMere Parasites

• Question 5 – but how can your exclude Question 5 – but how can your exclude apartments from single family residences?apartments from single family residences?

• Sutherland says that experts point out that Sutherland says that experts point out that apartments can retard home development, apartments can retard home development, ruin neighborhoods, and very often are no ruin neighborhoods, and very often are no more than mere parasites feeding off more than mere parasites feeding off established neighborhoods – they restrict established neighborhoods – they restrict air, light, create noise and drunken air, light, create noise and drunken students (just kidding)students (just kidding)

How Could Apartments How Could Apartments Possibly Ruin Neighborhoods?Possibly Ruin Neighborhoods?

The Heart of the CaseThe Heart of the Case

• Question 6 – Since the ordinance restricts Question 6 – Since the ordinance restricts use then we cannot get the best price for use then we cannot get the best price for the land – this takes value for which we the land – this takes value for which we were not compensated.were not compensated.

• Sutherland says that a diminution of value Sutherland says that a diminution of value is “mere” speculation. Plaintiff has offered is “mere” speculation. Plaintiff has offered no evidence that the value reduction no evidence that the value reduction would pass beyond the bounds of would pass beyond the bounds of acceptabilityacceptability

ConclusionConclusion

• November 22, 1926 – The court November 22, 1926 – The court reverses the decision of the Federal reverses the decision of the Federal District Court and upholds the right District Court and upholds the right of the Village to enact a zoning of the Village to enact a zoning ordinance based on careful studyordinance based on careful study

• The decision is 5-4The decision is 5-4

Euclid TodayEuclid Today

                                The Ambler Site today – an

industrial park

AND

Euclidian PyramidEuclidian Pyramid

Housing

Institutions

Commercial

Manufacturing

How Far Should Regulation How Far Should Regulation Go!Go!

But, What of the Good Things But, What of the Good Things In Life?In Life?

ANDAND

ALMOST THE END OF LECTURE ALMOST THE END OF LECTURE ONEONE

Today’s Ugly BuildingsToday’s Ugly Buildings

And MoreAnd More

The EndThe End