November 8, 2007
Meshing common law, statutes, and the constitution …
It’s been nearly a century since statutory law began to supplant common law as the chief source of land use regulation. But the old concepts still pop up once in a while. In an interesting decision this week, the Missouri Court of Appeals upheld the application of a county ordinance that requires companies that store certain inventory outdoors to have fences around their properties. (St. Chas. County v. St. Chas. Sign & Elec., Inc., No. ED89506 (Mo. Ct. App. Nov. 6, 2007)). This doesn’t sound too revolutionary. But what’s intriguing is that the trial court had struck down the application on the ground that ordinance in effect declared all such outdoor storage a nuisance, which was too broad a conclusion. The Court of Appeals made clear that the ordinance did not declare such land use a nuisance, but rather that it was merely a potential nuisance; the law was a justified use of the police power to avoid unsightliness and potential hazards to the public.
So everything is straight now, right? Well, the appellate court concluded by stating that the ordinance also was not a regulatory taking because it is “a valid exercise of the police power.” Hmmm … maybe the meshing of different strands of law isn’t so clear. The Missouri courts haven’t helped, through precedent stating that a regulation constitutes a taking when it “goes too far.” 988 S.W.2d at 106. Gee, I wonder where this unhelpful test came from?
November 7, 2007
Mood swings in Oregon …
The mood of the voters moves to and fro. In some years, voters’ consternation over taxes impels them to restrict government; in other years, they want government to make our communities more perfect. In Oregon, the voters yesterday approved by a wide margin a change in state law, called Measure 49, that rolled back some of the property-rights provisions that they approved three years ago, through Measure 37. Democrats, environmentalists, and metro residents typically supported the latest change. Among many complicated provisions, Measure 49 restricts new housing and commercial development in certain areas. While Measure 37 was sold as “protecting property rights” from government laws that lower property values, Measure 49 was touted as shielding areas from “excessive” growth. As such, it’s not surprising that voters voted for both … or that property-rights advocates are already gearing up for the next round of referenda in Oregon.
Meanwhile, although the turnout in Oregon was said to be fairly good, the turnout for the “off-year” election near me in St. Petersburg, Florida, was reported to be about 9 percent. Democracy at work ….
November 5, 2007
No smoking in this town’s apartments …
Life for smokers continues to get tougher in the United States. A growing number of localities are banning the practice of smoking in apartment buildings, as a way of ensuring that neighbors don’t have to put up with smoke wafting their way. Such laws have not been pursued as vigorously as bans against smoking in public places because the problem of second-hand smoke is obviously more acute in a place such as a bar or restaurant than it is through the walls of an apartment. But anti-smoking advocates argue with force that it is difficult to confine all smoke inside a single apartment unit. Indeed, there are instances of legal claims against apartment mangers under the federal Fair Housing Act, asserting that a failure to limit smoking is a failure to reasonably accommodate a smoking-sensitive handicap, pursuant to 42 U.S. Code sec. 3604(f).
Libertarians might suggest that the market could resolve this seeming clash of land use desires. For those persons who are unusually sensitive to second-hand smoke, landlords might attract them with advertisements that their buildings are smoke-free. For smokers, other landlords might attract them by imposing no limits on lighting up. But this is not the trend of our laws, at least in certain parts of the country, where the anti-smoking lobby appears to have the biggest clout.