#11069 - Administrative Rule - Property

Theories of Local Politics

1. Pluralism: Politics mediates struggle among self-interested groups for scarce social resources – all interests will be reflected in a decision.

2. Republicanism: people do not have predetermined preferences, but instead preferences are formed through public deliberation, with public benefits in mind.

3. Public Choice Theory: treats legislation as an economic transaction in which interest groups form the demand side, and legislators form the supply side. The market systematically yields too many laws that are rent-seeking; but too few laws that provide public goods

4. Tiebout Hypothesis: Local jurisdictions compete to attract citizens – individuals “vote with their feet” by selecting to live in communities most congenial to their preferences.

Comparison of the theories

1. Pluralism sees politics as market that works well within jurisdictions – a market for voice of different interest groups.

2. Public Choice sees politics as market that works badly – free rider problems, special interest group deals rather than reflection of larger public interest.

3. Republicanism – politics not a market but a discourse/deliberation to shape views, not to compete over views.

4. Tiebout – politics is a market, but market is not WITHIN jurisdictions between interest groups but ACROSS jurisdictions.

Reasons for zoning:

1. Externality/Nuisance control: Zoning allows residents to preserve the statuts quo more effectively than would either nuisance law or law of servitudes. Zoning also protects the neighborhood from negative externalities. (Mandelker)

2. Consumer Surplus (personhood, norms): Zoning protects a homeowner’s consumer surplus in a home and in the surrounding neighborhood (Karkkainen).

   1. However – understandable that some residents would want to maintain status quo, but what about other landowners or outsiders who want to develop their own definition of self and sense of place in the world?

3. Redistribution for fairness (equity…?)

Zoning power

1. Police power

2. Application of nuisance law

Standard State Zoning Enabling Act

1. Municipalities can regulate land use to “promote health, safety, morals, or the general welfare of the community.”

2. Euclid:

   1. A zoning ordinance is presumed to be constitutional

   2. The means chosen to achieve the legitimate state interest must be rationally related to the legitimate state interest

   3. A court may not conduct an independent review of the wisdom or policy of a zoning ordinance.

3. Zoning regulates future development. Nonconforming use that already exists is allowed. (Race to capture?)

Constitutional challenges to zoning

1. EP: strict scrutiny - classification

2. DP: strict scrutiny - fundamental right

3. Freedom of speech: for signs

4. Takings (see below)

Cases of zoning

1. Family zoning (Belle Terre) is generally allowed

2. Zoning for aesthetics (speech): a sign ordinance may be invalid because it (a) prohibits too much protected speech, or (b) discriminates based on the content of the sign’s message. (Gilleo)

Takings Clause, 5th Amendment: Nor shall private property be taken for public use, without just compensation.

3rd Amendment: government cannot quarter troops in private homes during peacetime.

Just Compensation Requirement: property’s fair market value.

1. Protects private right to exclude (but only via a liability rule)

2. Maintains faith in investments (can reap where you sowed)

3. Fair to burdened owners (taxpayers pay for public benefits)

4. Deters government from excessive taking

5. Shields elites vs. majority (protect elites from majoritarian redistribution)

6. But: FMV neglects personal value (personhood)

7. Compensation encourages overinvestment in activities subject to regulation (“moral hazard” problem of insurance)

Public Use Requirement

1. Minority view: government can take for non-public use without compensation

2. Majority view: government cannot take for non-public use. FORK: what is public use

Types of takings

1. Eminent domain (“condemnation”): expressly takes title; always a taking, always pays compensation

2. Physical Invasion is taking

   1. Flooding the land (Pumpelly 1872)

   2. Noisy overflights (Causby 1946)

   3. Cable TV wire (Loretto 1982)

   4. Easements (Kaiser Aetna 1979)

3. Exactions (Nollan 1987, Dolan 1994): Government can deny the permit, so can it impose restrictive...