Property II: Class 5 Monday 8/27/18 Power Point Presentation National Just Because Day

1. Property II: Class 5Monday 8/27/18Power Point PresentationNational Just Because Day Because!!! WHY? Why? Why Not???? BECAUSE Is Because “Just”?

2. Music to Accompany US v. County Board (I): Dan Fogelberg, Phoenix (1979) • Help Yourself to Animal Crackers on Side Table • 1stWritten Submission Due Sun 9/2 @ 8 p.m. • Week before Fall Break, we will do a second draft for off-days in October & November

3. Review Problem 1E, DQ1.14, Chart& Choosing Among Private Nuisance Rules Arguments re Relative Strength of Possible Private Nuisance Rules •  2d Restmt (McLaughlin) v. 1st Restmt (Mandel) (cont’d) • Recap of Earlier Pints • Additional from M&M • Additional from Others

4. General Information 1. General Kudos!! 2. General Chaos (Sorry) • Updated Assignments for Next 2 Classes Now Posted • Info Memo for Chapter 1 Now Includes Comments Be4st Answers for Rev. Probs 1E, 1F, M1A • I’ll Continue to Post Supplemental Info Until Thursday 5pm, then Frozen Until 1st Submission Due

5. Written Submissions I:Pseudonyms & Submission Procedure • 5 Sets of Aliases (One for Each Submission) • Go to Tina in Person & Choose the Ones You Want OR • E-Mail Her and Ask Her to Choose For You • Either Way, Make Sure you Have Them by Noon Friday • Take Care to Maintain Anonymity • Submission Process Described in Instructions Questions?

6. Written Submissions II:Writing & Formatting Instructions Important to Pay Careful Attention • Despite Generational Disinclination to Read Directions • Every Court Has These; Mistakes Can be Malpractice • Avoid Unnecessary Penalties • Remember to Double-Check Before Submission Questions (Today & Wed.)

7. Written Submissions III: Editing (Phase 1) Generally • Edit to trim length without altering meaning • Always helpful for your readers. • Especially important for court filings with length limits

8. Written Submissions III: Editing (Phase 1) Under the First Restatement, Chris would be liable to the neighbors if the utility of the nuisance is not greater than the harm of the nuisance. Thus the neighbors could have an injunction against him to halt the nuisance and presumably move or buy an $85,000 quieter van. If the utility outweighs the harm, then Chris is not liable for any damages to the neighbors. 

9. Written Submissions III: Editing (Phase 1) Under the First Restatement, Chris would be liable to the neighbors if the utility of the nuisance [of his conduct]is not greater than the harm of the nuisance. Thus the neighbors could have an injunction against him to halt the nuisance and [Chris would need to]] presumably move or buy an $85,000 quieter van. If the utility outweighs the harm, then Chris is not liable for any damages to the neighbors. 

10. Written Submissions III: Editing (Phase 1) Under the First Restatement, if the utility of Chris’s conduct is greater than the harm, the neighbors get no remedy. If the harm is greater, the neighbors could enjoin the conduct and Chris presumably would have to move or buy a quieter van.

11. Written Submissions III: Editing (Phase 1) Here the utility may outweigh the harm, because this is the only feasible way for Chris to get to work and Chris is the provider for two minors and one other adult. His income directly supports them and without him working they would be presumably be destitute. This goes against public policy as there is a strong public interest in having self supporting families, as to avoid need for support on the government through welfare programs. Given the nature of his work and the time he does it in, 3:55am, he will not be likely to rely on others car pool.

12. Written Submissions III: Editing (Phase 1) Here the utility may outweigh the harm, because this is the only feasible way for Chris to get to work and Chris is the provider fortwo minors and one other adult. His income directly supports them and without him working they would be presumably be destitute.This goes against public policy as there is a strong public interest in having self supporting families, as to avoid need for support on the government through welfare programs. Given the nature of his work and the time he does it in, 3:55am, he will not be likely to rely on others car pool.

13. Written Submissions III: Editing (Phase 1) The utility of Chris keeping his job seems high. His income supports two minors and another adult thus making support through government welfare programs unnecessary. The van may be the only feasible way for Chris to get to work because carpooling at 3:55 a.m. seems unlikely. Questions on Phase 1?

14. Written Submissions III: Editing (Phase 2) Generally • Edit to make as concise as possible without losing clarity • Very helpful to improve scores on exams if Prof allows • Also helpful for informal internal documents and note-tasking

15. Written Submissions III: Editing (Phase 2) Under the First Restatement, if the utility of Chris’s conduct is greater than the harm, the neighbors get no remedy. If the harm is greater, the neighbors could enjoin the conduct and Chris presumably would have to move or buy a quieter van. The utility of Chris keeping his job seems high. His income supports two minors and another adult thus making support through government welfare programs unnecessary. The van may be the only feasible way for Chris to get to work because carpooling at 3:55 a.m. seems unlikely.

16. Written Submissions III: Editing (Phase 2) 1st Rstmt: Harm > Util = Injunction; U > H = no rmd. Util: • C’s job supports family so govt support unneeded • May need van to go to work • Carpooling at 4 a.m. unlikely. Questions on Phase 2?

17. Substance of Submission #1: Review Problem 1A (Look At Now) General Tips for Short Problems • Both Sides will Have Some Strong Arguments • More Relevant Points than Time/Space Permit: Make Choices: • Emphasize Anything Attys Likely to Contest (Hard Qs >. Easy Qs) • When in Doubt, Choose Depth Over Breadth • Use Facts Given and Possible Unstated Facts (if not inconsistent) • Try to Include Tie-Breakers for Highly Contested Issues

18. Substance of Submission #1: Review Problem 1A (Look At Now) General Tips for Short Problems • Don’t Decide Issues in Ways that Cut Off Others. E.g. 2d Restmt: • DO NOT Decide Conclusively Harm Isn’t Serious and so Skip Balance • DO NOT Decide Conclusively Harm > Utility and so Skip 2d Prong Questions (Today & Wed) • On General Approach • On Review Problem 1A

19. Last Major Nuisance Topic: Possibly Preclusive Issues • Looking at Legal Rather Than Factual Q: When Should Court Block Lawsuit (= No Balancing Happening) • Could Focus on Reasonableness of P Complaints (Stronger/Milder Versions of Oversensitive) • Could Focus on Protecting D’s Activity (Stronger/Milder Versions of “Policy Concern”)

20. Last Major Nuisance Topic: Possibly Preclusive Issues • Looking at Legal Rather Than Factual Q: When Should Court Block Lawsuit (= No Balancing Happening) • Could Focus on Reasonableness of P Complaints (Stronger/Milder Versions of Oversensitive) • Could Focus on Protecting D’s Activity (Stronger/Milder Versions of “Policy Concern”) • Can Look at 3 Recurring Issues in This Light • Coming to the Nuisance/ First in Time (FIT) • Relation to Zoning • Municipal Liability

21. First in Time: DQ1.20 • Why is “coming to the nuisance” a defense? • (a) Genl Unfairness of Moving in w notice then trying toshut down • (b) Economics: If pay less for land b/c of existing proob, windfall if shut down or get dmgs

22. First in Time: DQ1.20 The Second Restatement makes “coming to the nuisance” a factor to consider and not a complete bar to recovery. Is this a good approach? • Common Restmt approach: tends to like multifactor; (more flex but less notice/certtainty). Brief on Rules & Stds • Concerns that justify? • Lack of notice b/c harm unknown at time of purchase • Concerrn expressed sometimes that harmful use being first shdn’t give it permanent rt to damage n-boring lots. Might deal w by distinction between pub/pvt nuisances

23. First in Time: DQ1.21 • Under what circumstances would the court in Spur apply the “coming to the nuisance” doctrine? indiv knowingly comes into n-hood reserved for agr or industrial use • Under what circumstances would it refuse to apply it? if biz build in growth pattern of city: reas foreseeable will expand • Note timing issue: ct talks about predecessors in interest: if continuous use, will tack on, so get priority of earlkier Os if continue same use

24. First in Time: DQ1.21 • .What exactly did the court order the parties to do in Spur? P pays D to shut down/move • Is the result fair to everyone involved? Most people think so • Harm to Neighborhood Eliminated • Del Webb purchased at lo price w notice, so bad player • Spur has to move, (which wd be true from urban growth anyway; AZ cities grow very fast in last half of 20th century), but was innocent at purchase, so gets move paid for

25. First in Time: DQ1.22 • What kind of situation does the Idaho Right to Farm Act address? existing farm can’t be shut down as nuisance based on harm to those who purchased after farming started (note could do directly by zoning oir similar legislation) • Why didn’t the Act apply in Carpenter? not pre-existing use b/c expansion plus effective date too late •  What is the relationship between the Right to Farm Act and the Spur decision. Legislative response to Spur: Farmers lobbyists and trsde assns. Go to work to protect farms from Spur; Remember always appropriate response to c.l. decision n you don’t like. Qs on FIT?

26. Zoning: DQ1.17 & MorePublic v. Private • For private nuisance claims, we’ve already seen that activity can be basis of a nuisance suit even if the zoning doesn’t forbid it. • In private context, might see nuisance as safety valve for zoning: provides remedy for harms legislature doesn’t anticipate, which is good b/c means no need for incredibly comprehensive zoning. • Obviously a specific public nuisance statute creates liability regardless of what other zoning ordinances say, but in Armory Park, no legislation expressly allowing or forbidding.

27. Zoning: DQ1.17 & MorePublic v. Private • Might argue that, in absence of specific ban, it should be a defense to a public nuisance claim that a defendant’s activities complied with local ordinances? • Shouldn’t landowners be able to rely on zoning (=gov’t regs) to tell them what they can and cannot do with their land at least with regard to claims by the govt?? • (Focus on policy-based preclusion: protect owners’ reliance interest in using land the way they were told they could)

28. Zoning: DQ1.17 & MorePublic v. Private • BUT In absence of specific statute/zoning, NOT a defense to a public nuisance claim that a defendant’s activities complied with local ordinances? • As Spur discusses, widely understood that changing circumstances can make formerly permitted activity a public nuisance, which is why there’s no “coming to the nuisance” defense for this claim.

29. Zoning: DQ1.17 & MoreConstitutional Background • Precedent from US SCt makes clear that it is not unconstitutional for local govt’s to shut down a formerly permitted use if population growth or technology change results in or reveals a public nuisance. See Hadacheck v. Sebastian. & Reinman v, Mulkey • Riff on Takings and Other Constitutional Issues in Property II: Relevant Policy Concerns v. Application oif Doctrine

30. Zoning: DQ1.17 & MoreSpecifically Permitted v. “Merely” Not Forbidden • In APk, not specifically permitted; just not forbidden. APksays: wd hesitate to find nuis if comprehensice & specif zoning law allows • Bovev. Donner-Hanna Coke Corp.258 N.Y.S. 229 (1932) : Case relying on specific zoning (allowing coke ovens) to preclude nuisance claim. • Could see distinction as • About oversensitiveness where P has constructive notice • Policy Concern: Protect deliberate & spercificdecision by elected officials • Note similar Qs w comprehensive environmental regs; Shd D be able to rely on meeting govtreqmts as protection

31. Zoning: DQ1.17 & MoreSpecifically Permitted v. “Merely” Not Forbidden • Arlington Cty Board & Florida ex rel. Gardiner v. Sailboat Key, Inc., 295 So. 2d 658 (Fla. App. 1974),(cited in Arlington)permit challenges to land use specifically allowed by zoning. BUT • (1) At the time goes into effect (so no reliance or notice issues) • (2) Public nuisance claims • (3) Arlington challenge from party outside reljurisd: (your Z messes with our use/enjoyment) (By contrast, Sailboat Key again raises issue of allowing political loser to reviit in court) \ Qs on Zonong?

32. Municipal Liability: DQ1.24 & More 1.24 Should the analysis in Armory Park be different if the center performed the same services to the same people but was owned and operated by the County government? • Ideas in Room? • On Brief look: I haven’t found case where court allowed nuisance suit for incidental effectsof providing govt service (e.g., police station on similar theory of attracts low-lives?)

33. Municipal Liability: DQ1.24 & More • Both Arlington Cty Bd & Sailboat Key allow public nuisance suits ag municipality for passing Z that creatyes harm • Quick look suggests caselaw pretty confused & tied to Qs of municipal i9mmunity outside scope. I’ll give you a bit more detail in Info Memo • Qs on Municipal liability?

34. Possibly Preclusive Issues: DQ1.26-1.29 • 4 categories of problematic Cases: (not mutually exclusive) • My categories, not commonly used • No universal answers to any: we’lkl discuss some possibilities • In Info Memo, I’ll goive you some case examples & some write-ups from prior classes.

35. 1.26. Very Low Probabiity of Harm But Catastrophic if It Occurs: • (a) P’s activity releases into the air a chemical to which a very small number of people are allergic (e.g., 1 in 100,000,). However, if someone allergic breathes in the chemical, they usually die. • Relevant Concerns? Best Outcome?

36. 1.26. Very Low Probabiity of Harm but; Catastrophic if It Occurs: • P’s activity releases into the air a chemical to which a very small number of people are allergic (e.g., 1 in 100,000,). However, if someone allergic breathes in the chemical, they usually die. Relevant Concerns Include: • If no injunction, damages after the fact will seem insufficient. • Might want to be over protective of health and life. • But if we enjoin, we might block activities that are highly socially useful. • Maybe best to deal with through government regulation, rather than nuisance suit.

37. 1.27. Questionable Concerns: (Irrational/Prejudicial/Unsupported) Tension Here: • Should we provide a remedy for the genuine tangible harm of lost PV? OR • Should we deny any remedy because of the questionable basis for the lost PV?

38. Jones v. Trawick (Fla. 1954)Even though I walk through the valley of the shadow of death, I will fear no evil, for you are with me; your rod and your staff, they comfort me….

39. Jones v. Trawick (Fla. 1954)Even though I walk through the valley of the shadow of death, I will fear no evil, for you are with me; your rod and your staff, they comfort me….But I Won’t Drink the Water!

40. 1.27(a). Questionable Concerns: (Irrational/Prejudicial/Unsupported) concerns in Jones regarding (i) drinking water • no ev of water contam but sounds gross • (tho water percolating into wells travels through animal waste, worms and insects, etc. • Fair to characterize as “questionable” • Should the court have • treated tose concerns as oversensitivity, • blocked them based on policy concerns, or • let them go forward??

41. 1.27(a). Questionable Concerns: (Irrational/Prejudicial/Unsupported) concerns in Jones regarding (ii) depressive atmosphere • Fair to characterize as “questionable” ? • Should the court have • treated tose concerns as oversensitivity, • blocked them based on policy concerns, or • let them go forward??

42. 1.27(a). Questionable Concerns: (Irrational/Prejudicial/Unsupported) concerns in Jones regarding (i) depressive atmosphere court notes NIMBY prob & need for cemeteries Diff than funeral homes? Later Fla DCA Cases have limited holding to res n-hoods.

43. 1.27(b). Questionable Concerns: (Irrational/Prejudicial/Unsupported) The dissent in Jones tells us that both sets of interested parties (the home-owners and the families using the cemetery) were African-American. How might this have affected the way the majority analyzed the case?

44. 1.27(b). Questionable Concerns: (Irrational/Prejudicial/Unsupported)