Spring 2008

Essay Question 1- 45 points (80 minutes); 3 parts

In 1970, Ollie purchased in a Y2-acre lot of land on Sitka Avenue in the town of Grover's Corners, in the state of Hysteria. Shortly thereafter, Ollie built a single-family house on his Sitka Avenue lot in which he has lived ever since with his wife and children. Prior to moving to Grover's Corners, in 1965, Ollie had been convicted ofthe crime of statutory rape for the act ofengaging in consensual sexual intercourse, at the age of 18, with his then-girlfriend of the age of 16. Ollie was sentenced to three years' probation for his crime. Ollie has never been arrested for, charged with, or convicted of, another crime.

In 1998, Hysteria passed the Sex Offender Notification Act, which required all persons in Hysteria who had been convicted of a sex crime - defined to include statutory rape - to register as a "sex offender" with the state police. Depending on the severity ofthe crime, the state would notify neighbors ofthe presence of an offender in the community and monitor the offender's activities. In 2007, Grover's Corners passed a zoning ordinance that prohibits sex offenders (as defined by state ) from living within 1000 feet of a school, registered day care center, place ofworship, public park, or recreation facility. The law is set to take effect in July 2008.

Part A

Ollie's house is located 500 feet from an elementary school; thus, once the new ordinance takes effect, it will be illegal for Ollie to remain in his house on Sitka Avenue. Ollie loves the home he has lived in for more than 35 years, and desperately does not want to move. Ollie comes to see you, his trusted lawyer, for legal advice on how to remain in his home. What would you advise him?

Part B

It is not just the town that is breathing down Ollie's neck. In 1978, as the section of Grover's Corners in which Ollie lives began to develop, a group of25 owners in Ollie's section oftown, Little Forest Hills, banded together to form the Little Forest Hills Homeowner's Association (LFHHOA or HOA). The LFHHOA was established through each ofthe 25 owners signing a written restriction pledging to keep each signatory's property residential, pay dues to the HOA as set by the HOA's board of directors, and abide by HOA bylaws. The deed restrictions were recorded for each ofthe 25 and each restriction clearly indicated that it was intended to run with the land to successive owners ofthe properties. In early 2008, the LFHHOA adopts a new bylaw that prohibits sex offenders from living in the community. The bylaw defines "sex offender" in a manner consistent with Hysteria state law and makes no exception for people already living within the boundaries ofthe LFHHOA, although it does give any such persons 180 days to comply with the new bylaw. Ollie once again approaches you, his trusted lawyer, about his options for remaining in his home despite the new HOA bylaw. What advice would you give him?

Parte

Assume that Ollie is permitted to remain in his home despite the zoning restriction and HOA bylaw. One month ago, after a well-publicized tragic case in Hysteria of a convicted, registered sex offender luring a child into his home and abusing him, the state legislature proposes an expansion of its monitoring of sex offenders on the state registry. Specifically, the state senate has passed a bill requiring that all registered sex offenders be required to place atop their front doors (or side or back door ifthat is the more common approach for a visitor) a video camera with a live feed to local and state police. The rationale behind the bill, according to its lead sponsor, is that it will better enable police to ensure that sex offenders do not lure unsuspecting young children into their homes should the children stop by to trick-or-treat, sell Girl Scout cookies, etc. The leader of the state house of representatives, which is currently considering the bill, approaches you, a lawyer in the nonpartisan legislative counsel's office, regarding any property-related objections to the bill's constitutionality. What advice would you have for the state house leader? Institution Wlllamelte College of Law Course I Session 508 Property -Diller Control Code N/A Instructor NA Section. Page 1 of 14

Answer-to-Question- 1A

Ollie does indeed have a good reason to get legal advice. His fIrst, least expensive, and least difficult option is to seek a ..---­variance from the zoning board. zoning boards have a wide discretion to alleviate the hardship of a zoning law, while still remaining in hannony with the

intended spirit of the ordinance. If granted, the variance would allow Ollie to remain living in his

house, dispite being in violation ofthe zoning board. Assuming Ollie has made a few friends in

the last 38 years, he may be able to get the zoning board to agree that being removed from his home for a consensual sexual relationship with a girl only two years his junior more than 40 years ago is overly harsh. The real trouble is in the defInition of"hardship." While it may be easy to get the zoning board to agree that his case is a special circumstance that merits a variance, a resident who knows the law may sue to take the decision out of the hands ofthe (often) legally deficient zoning board. The courts often construe the hardship requirement for variances fairly narrowly, and always exclude self-imposed variances. There is little doubt that being a sex offender is a self-imposed harship. Therefore the court would strike down the variance rapidly. I would still advise Ollie to attempt to get the variance, as he has a chance ofsuccess, the costs are low, and it doesn't foreclose any of his other options.

Assuming that Ollie failed to get a variance, I would next encourage him to sue under the state's prior non-confonning use statute. Most states have statutes that allow buildings that predate the zoning restrictions to continue use even in violation of the zoning. Here, Ollie moved in even before the advent of sex offender registration, let alone zoning to prevent residence by sex offenders. He clearly comes has a prior nonconfonning use. However, this maneuver is jepordized by public policy. The state legislature has declared that sex crimes can be tracked for the safety of the neighbors of sex offenders. It is within the power of the legislature to decide what is a sex crime. According to the legislature there is no functional difference in this area Institution Wlllamette College of Law Course I Session 508 Property -Diller Control Code N/A Instructor NA Extegrity Exam Section. Page 2 of 14

between a serial rapist, and Ollie. If a judge were to find that anti-sex offender zoning can be defeated by non-confonning use for comparatively benign Ollie, the courts would have to view it the same way for truly dangerous people. For public policy reasons, non-confonning use is likely to fail, but it's still worth a shot. Perhaps a judge will be moved by the unfairness to Ollie.

Ollie also has the option ofasserting that this zoning is a regulatory taking. To investigate a regulatory taking the court looks at the economic impact ofthe regulation, the character ofthe government action, and interferance with investment backed expectations. The character ofthis government action would easily be seen as valid, or even necissary. It's designed to protect the community from harm, so the scale is already leaning towards legitimate application ofpolice power. The economic impact question also leaves Ollie out in the cold. While the regulation does negatively impact Ollie's economic value, it does not deprive him ofall economically viable use. I He can still sell the house, which a court could easily find as a reasonable return on investment.

Finally, investment-backed expectations. The (difficult) question left is does Ollie have an investment backed expectation in the land. Namely, by purchasing the house and living in it for

38 years, is his investment being frustrated. This question is tied up in vested rights. Ifhis rights have vested, then this zoning interferes with his investment backed expectation. This is an evidenciary question, and a difficult one at that. Ifhis rights have not yet vested, then Ollie is all out ofoptions, and I would refer him to the best real agent I know. Ifhis rights have vested, then this is a regulatory taking. Unfortunately Ollie can still lose his house. The question that remains is does the city have the spare money to pay fair-market value for the house. Ifthey can't or won't afford it, then Ollie gets to stay. Unfortunately for him, ifthey do still want to pay, then

Ollie has to give up his house under Kelo. He has no right ofrefusal, even under a more stringent state test, because protection from sex offenders is clearly a public benefit. If it gets down to takings, Ollie is in trouble

While Ollie does not have too good ofa chance overall at keeping his house, he does have lots ofsmall chances that might keep him in his longtime home. Institution W1l1amette College of Law Course I Session 808 Property -Diller Control Code N/A Instructor NA Extegrity Exam Section. Page 4 of 14

Answer-to-Question-_1 B_

My fIrst advice to Ollie in dealing with the HOA comes in the form ofa question. Is Ollie

actually part ofthe HOA? Ollie purchased his land in 1970, 8 full years before the HOA came

into being. Ollie cannot have joined a because he never had privity with any member of

the HOA. A covenant requires privity, a written instrument with intent to bind successors, notice,

and that it touch and concern the land. When Ollie purchased his land he did not enter into a covenant, because he never shared a land interest with any member ofthe HOA. While those who did have privity (and the other elements of a covenant) must abide by the anti-sex offender bylaw,

Ollie, as one outside this class does not have to.

Even without privity HOAs can enforce thier will through Equitable Servitudes. An

Equitable servitude requires an agreement in writing with an intent to bind successors, that touches and concerns the land, with notice. The restriction was in writing, and intended to bind successors. We can assume that the notice requirement was met either acually for the original signatories, or notice can be constructed for all those who followed because the restriction is in the deed. Finally, expelling sex offenders clearly touches and concerns the land, a requirement that is often read to be a reasonability requirement. But once again, it appears that Ollie's neighbors entered into this equitable servitude, not Ollie himself. While an equitable servitude allows neighbors to enforce upon one another by dispensing with the privity requrement, the neighbors must still have actually entered into the agreement. Here Ollie has simply mentioned that there is a HOA in the neighborhood, not that he joined it when it formed. Ollie is completely immune to their anger, because he isn't a member ofthe HOA.

IfOllie did join the HOA in 1978 (or later) then our analysis looks a little different. Ollie Institution Wlllamette College of Law Course I Session 508 Property ·Dlller Control Code N/A Instructor NA Extegrity Exam Section. Page 5 of 14

might first attmept to attack the covenant that this kind of restriction is unreasonable. For HOA

regulations the courts have removed the touch and concern requirement and have replaced it with

a reasonableness requirement. Unfortunately, Ollie has little chance here. It certainly seems

reasonable to ban sex offenders from a HOA, both for property value reasons and safety reasons.

Ollie will attempt to argue that he has lived in the neighborhood for 38 years and has never

hanned anyone. Unfortunately, the public policy espoused by the state legislature in its sex

offender registration indicates that he is to be considered dangerous, even though his crime

was minor and consensual. Thus most courts would fmd that it is reasonable to ban all sex

offenders. The only potentially unreasonable aspect ofthe new bylaw is that there is no exception

for longtime residents. Unfortunately, as the state law has no grandfather type clause, public

policy leans toward the HOA again. Reasonableness will probably not save Ollie here.

Ollie has an argument that the new bylaw, which gives no special provision to existing

residents, is a relative hardship. If the hardship to the owner of a servient estate is greater by a

considerable magnitude than the benefit to the owner of the dominant estate then the court may

choose not to enforce the equitable servitude. This is another heavily fact based inquiry. While

Ollie has never done anything untoward to the neighborhood, his presence will still lower

property values for the other members of the HOA. Further, some of the HOA will undobtedly

make a safety argument "once a sex offender, always a sex offender." These concerns will be

balanced against Ollie's costs to move out. While on its face the safety argument looks weak,

many people believe that this is a valid argument. IF the judge agrees that Ollie is a danger, then

he might as well start packing his bags now. If the judge simply agrees that Ollie is lowering

property values, he might allow the HOA decree to go through, or he might simply assign

damages to Ollie. Depending on Ollie's finances, this might amount to the same thing.

Also, Ollie will want to look at the state statutes. Many states remove equitable relief from the options available for enforcement ofequitable servitudes. If a state statute limits the

HOA to damages Ollie will be able to stay at home, assuming that he can afford to pay damages Institution W1l1amette College of Law Course I Session 508 Property -Diller Control Code N/A Instructor NA Extegrity Exam Section. Page 7 of 14

Answer-to-Question-_l C_

By far the most obvious problem with this law is that it is a taking. Ifa portion ofland is permenantly annexed then it is a per se taking. See Loretto v. Manhattan Teleprompter. All takings must be compensated. The obvious result for the city then, is simply to go ahead with the plan, and give adequate compensation. IT cannot cost too much to annex a small portion ofa house for a camera, so the city won't have much problem there.

Wiring all those cameras up to the police station will also be flirting with takings.

Asswning that the wires need to run underground, then the state will need to dig up a good portion ofthe front yards oflocal residents, most of whom are not sex offenders. The state will need to purchase from the various property owners to accomplish this. Those who hold out on selling easements can have a purchase forced upon them with the takings doctrine. The market value ofan easment to dig up everyone's front yard to put in utilities will probably cost the state more per unit than the cameras themselves, and there will be far more units. Some residents may object to easements in gross, that is easements that are not connected to the land, however, states and utility companies are usually exempt from the traditional prohibition on easments in gross.

The other option for actually connecting the cameras to the station is to run them through existing cable tv and internet lines. This is just as much ofa taking as the previous option, but it only really involves one defendant: the state approved monopoly that controls cable. Here however, it is difficult to foresee damages. By constantly taking up bandwidth, the state is still creating a per se pysical invasion, and therefore a taking. Th difficult question is determining the market value ofthat bandwidth, does it cost nearly nothing because it is either electrons being Institution W1l1amette College of Law Course I Session 508 Property -Diller Control Code N/A Instructor NA Extegrity Exam Section. Page 8 of 14

shot down a wire (for coaxial cable) or light being shot down a fiberoptic tube? Does it cost a

great deal because it would cost a consumer a lot to occupy that much bandwidth? Though a trial court would lean toward the latter as an expression of fair market value, it may still be cheaper for the state to take just the bandwidth than the cost of taking easements over most ofthe front yards in the state, plus the costs of actually building the wires. Perhaps an even more advantageous option will be for the state to simply negotiate with the cable company for the bandwidth, saving the uncertainty ofthe courts, and possibly allowing a deal.

Some may oject to the takings as being for a private benefit, i.e. just for those who would be molested. This argument falls through. Kelo has given us a wide conception ofpublic benefit, and police monitoring would be considered public benefit long before Kelo. Actual expressions ofpublic safety aren't even close to private benefits.

Though the new law creates lots oftakings, the takings it creates are probably well within the state budget. The state will fmd itself on the losing side in court unless they pay for thier use from the beginning.