WELCOME TO THE COURSE IF YOU THINK THAT THIS PICTURE LOOKS NORMAL
Course Goals • Bring you “up to speed” on the legal, ethical, and constitutional requirements of planning practice • Help you understand the legal segment of Planning’s developmental history • Apply legal reasoning and due process in regulatory practice
Course Rules • Cell phones • Preparation and case briefing • When class starts • Office hours • Submitting material – formats • Course requirements – next page • Grades
Resources • Mandelker • Selected Readings on Website • Handouts • Lexis/Nexus • Legal Disctionary
Course Requirements • Briefing and reciting cases by “presenting your case.” • Completing the required assignment exercises • Mid term and final exam • Show up on time
CONSTITUTIONAL LAW AND PROPERTY RIGHTS • DUE PROCESS • EQUAL PROTECTION • TAKINGS – THE 5TH AMENDMENT • THE 1ST AMENDMENT – SPEECH AND RELIGION
THE 14th AMENDMENT Substantive Due Process Procedural Due Process Equal Protection
Substantive Due Process • Confusion In Meaning • A land use regulation must advance a legitimate state interest • Ultra vires • State must show that a less restrictive alternative is not available
Procedural Due Process • The basic idea of fundamental fairness • Reasonableness – not arbitrary or without carefully considered application • Overbreath and underbreath • Unfair such as lack of notice • Overt disdain by government authority • Decisions not based on a factual record
Equal Protection • Requires that people who are similarly situated or a member of a protected class be treated equally unless there is a compelling state reason for doing otherwise • Three tiers of scrutiny: reasonable relationship; substantial relation; strict scrutiny with compelling relationship
The 5th Amendment • Nor shall any person be deprived on life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation • KEY CONCEPTS – What is Property, Due Process, Just Compensation and Public Uses
1st Amendment • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.
Speech and the 1st Amendment for Planners • What is speech? Are some forms of speech more protected than others? Does speech have special qualities. Can conduct be speech? Is a symbol, such as a sign actually a form of speech? • Signage as Speech – Time, Manner, and Place!
Special Introductory Terms for Planning Law • Easement – A right held by a person on the land of another. LOT A LOT B
Estoppel • Estoppel - A rule of law that when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper. A 1891 English court decision summarized estoppel as "a rule of evidence which precludes a person from denying the truth of some statement previously made by himself
Planning Law Terms • STARE DECISIS - A basic principle of the law whereby once a decision on a certain set of facts has been made, the courts will apply that decision in cases which subsequently come before it embodying the same set of facts. A precedent which is binding; must be followed
Terms For Planning Law • Usufruct - From ancient Roman law (and now a part of many civil law systems), "usufruct" means the rights to the product of another's property. For example, a farmer may give a right of "usufruct" of his land to a neighbor, thus enabling that neighbor to sow and reap the harvest of that land
Planning Law Terms • RES JUDICATA - A matter which has already been conclusively decided by a court.
Concepts of Property Law • Concept of a Sovereign • Immunity • All Property right derived from • Blackstone’s Dictum • Constitution prevents abuse by the sovereign • Sovereign has “presumption of validity”
Property Law • Property is a bundle of rights • Appropriable and value • A right to material things – not personal liberties • It is exclusive not inclusive • Can be held exclusively, jointly, or in common • It is an attribute of people – there is no “bird’s cage”
Rights In Property Air Right Conservation Easement Development Right Profit Travel Easement Surface Estate Mineral Right
Property Requires • An owner – together with others that can be excluded • Actual property objects that can be held in possession – thus riparian rights are not in possession • A sovereign that will sanction and limit the access of others
Types of Estates • Fee • Fee Conditional or qualified fee • Life estates
Other Forms of Property • Equitable Servitudes • Easements – appurtenant / gross • Negative and positive • Covenants • Touch and concern the law and reasonable • Further aim of some social policy • Clearly describes benefits and burdens • Changed conditions and rule again a perpetual contract
Contract As Property • A Contract must: • Mutual Agreement - Fundamental concept; offer and acceptance are essential to all contracts. Offer and acceptance are normally made by words, but sometimes they may be unspoken and indicated by an action, or by the acceptance of and action. Mutual agreement must be based on free assent without duress or undue influence. Informed consent, in the fullest possible meaning of the word, is also an essential element of mutual agreement
Contract • Offer and Acceptance - The natural expression of mutual agreement and, as such, both the offer and the acceptance must be identical as to their substance. There must be real and complete agreement between the parties at contract. Offers may be withdrawn prior to acceptance - but once accepted, the offer cannot be withdrawn because it has been changed by its acceptance into a contract
Contract • Capacity - Capacity of the parties at contract refers to the competency of the individuals (or groups) making the agreement. Parties refers to human persons and corporations. Certain statutes restrict the capacity of a person to contract: i.e., minors, felons, mentally challenged, etc. Relationship is also an element of capacity. For instance, my relationship to Kansas State University as an employee does not entitle me to contract for the University. On the other hand, the law entitles 3rd parties (know as agents or a person having the power of attorney, or a guardian) to contract for another
Contract • Consideration - Consideration is something of value given by one party to a contract to the second party in exchange for something else. Thus, consideration must also flow both ways for a valid contract. Consideration is a complex subject, full of shades of meaning. For example, assume that you have a property right to cut the timber on the land of another person (profit`) which, in this case, would be termed a contract for timber interest with an assumed easement of access. Suppose a third person owns adjacent property. This person promises to pay you more than the value of the timber because they wish to retain the trees for screening. If you agree, the contract with the 3rd party would create an equitable servitude binding both parties (you and the third party) to a form of consideration
Contract • Object - The object or purpose of a contract must be lawful and enforceable; and, the object must be carried out in a way that is customarily understood
Contract • Time - The concept of time (and duties carried out within that time) is the essence of a contract. If the object of the contract is not carried out within the agreed upon time frame, then there is a breach and the other party may seek civil enforcement and penalties. For planners, time is very important. Most property related contracts (restrictions and covenants are intended to run for very long periods of time. The law cannot look favorably on contracts that "run forever" or that bind "successive heirs and owners forever." Therefore, property contracts must be renewed at regular intervals - e.g. 10, 15, 20, or 25 years – for example.
Underpinning of Property • Real Property is anything to which this label may be attached: “ TO THE WORLD – Keep off X unless you have my permission which I may grant or withhold Signed
My Property – Your Property • A man was hired to clean an old pool and fountain. When doing so, he found an antique ring that was very valuable. The city demanded that the ring be returned. The man refused to do so. He said that possession is nine tenths of the law. To whom does the ring belong?
Three Key Rights to Property • The right to possession of the thing • The right to the use of the thing • The right to alienate or otherwise dispose of the thing • In other words – the right of possession and use is another way of saying that we have the right to exclude all others from using that thing.
Theories of Property and Land Tenure • Absolute 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 ---- • Thus the French civil code (544) defines ownership as "the right to make use and dispose of a corporeal thing absolutely provided it be not forbidden by law or statute"; the code of the German Empire (903) says: "The proprietor of a thing may use it as he likes and exclude from it all outside interference, as long as the law or the rights of others are not violated" and in Blackstone (Comm. I, 138) we read that the right of property "consists in the free use, enjoyment and disposal of all acquisitions, without any control or diminution, save only by the laws of the land".
Less Than Fee • The doctrine of holding parts of land • Constitutional Doctrines • Mature and Modified Doctrines • Stewardship Doctrines • Public utility and interest doctrines such as Land Care, The Queen’s Chain and All Men's Rights in the Nordic Law.
Alternative Doctrines • Marxist and Modified Marxist • Nomadic or Tribal Society • Humanistic doctrines such as “Gaia” The name "Gaia" has been popularised by James Lovelock, the propounder of the "Gaia Hypothesis". This is the theory that the entire Earth is a single living superorganism, the various components of which - organic and non-organic - interact in such a way as to maintain an environment in which life can exist.
Case Citations • Keller v Hays, 345 U.S. 292 (1989) Supreme Court/Official Reporter (gov) • Keller v Hays, 1123 Sp. Ct. 234 (1991) Supreme Court/Commercial Reporter • Keller v. Hays, 661 F.2d 777 (1992) U.S. Circuit Ct. of Appeals Reporter (gov) • Keller v Hays, 1135 F. Supp. 221 (1993) US District Court Reporter (gov)
Case Citations • Keller v Hays, 290 A.2d 899 (1991) Regional Reporter/Commercial Atlantic • Keller v Hays, 290 N.E.2d 899 (1991) Regional Reporter/Commercial Pacific • Keller v Hays, 290 N.W.2d 899 (1991) Regional Reporter/Commercial North East • Keller v Hays, 290 So.2d 899 (1991) Regional Reporter/Commercial Southern • Keller v Hays, 290 S.E.2d 899 (1991) Regional Reporter/Commercial Southeast