a) the aesthetic factor to be taken into acct by the Arch Board is not to be xonsidered alone. Along with that inherent factor is the effect that proposed residence would have upon the property values in the area
b) court leveraged aesthetics on the back of preserving property values
ii. But is it clear that this house will reduce the property value of the neighborhood?
a) when people look for a house, the appearance of one house in the neighborhood is not high up on the list --- so will it necessarily hurt property values>
iii. court does not adopt a high level of scrutiny here
a) CB 1070 -- the denial of the permit does not appear to be arbitrary and unreasonable -- this is not a high level of scrutiny
b) set up the means and ends test to determine the level of scrutiny applied by the court
iv. Is the preservation of home value a legitimate ends of govt?
a) what is the community looking to do?
b) why does the govt think it appropriate to prop up home values when it lets most other investments go their own way
i) does it have something to do with the fact that home ownership is such a substantial part of one's portfolio?
v. For the most part, courts will be deferential -- rationally related test
vi. But is this deferential stance justified b/c we are dealing with aesthetics b/c it is tied to some protected rights (free speech?)
d. Note 3 -- CB 1076 --- What about when the regulation definitively interferes with a 1st amendment right?
i. Metromedia v. City of San Diego -- sign and billboards
a) court makes a distinction b/t commercial and noncommercial speech?
ii. Young v. American Mini Theatres -- Adult entertainment
a) Govt controls based on the content of communication are said to be subject to closer judicail scrutiny than controls that simply regulate the time, place and manner of communicaiton without regard to content
b) court upheld ability of city to disperse theaters all over the city --- not a total ban and therefore not unconstituional -- seconday effects
iii. Schad v. Mount Ephraim
a) city banned live entertainment --- but the only live entertainment going on was nude dancing so the court held that the regulation was unconstitutional
ii. court invalidated an ordinance which defined family to include no more than one set of granchildren
iii. Belle Terre is distinguished on the grounds that here you have a family related by blood -- and there is a privacy issue here b/c of the wedge that the city could drive b/t the family
iv. Interesting part of case is concurrence by Justice Marshall
a) extended families like this is more likely to be prevelant in the black community than in the white community -- what you have in this ordinance is a disproportionate impact -- discriminating against minority families
v. substantive due process concerns?
h. Note 3 -- Examples of other cases
i. Ladue v. Horn
a) court relied on Belle Terre and defered to the leg
b) probably represents the majority view
i. SEE CB 1091
i. possibility of legislative overrides may explain why the courts of other states have taken a constitutional approach in invalidating family defintions
i. exemption in the FHA for reasonable govt regulations on the number of unrelated people living together -- maximum occupancy limit
ii. π then argues that it is not really a maximum occupancy limit b/c it does not apply to related people
i. court relies on Belle Terre and Moore to argue that the S.Ct sanctioned zoning limitations based upon the # of unrelated people living together as a means of furthering the state's interest in controlling density notwithstanding the absence of a similar limitation on related people
ii. using these cases to say that congress intended occupancy limits to apply to unrelated people
g. π's second argument?
i. argues that the exemption only applies to reasonable restrictions regarding the maximum number of occupants
h. Court's response?
i. In determining the reasonableness the court must strike a balance b/t a city's interest in maintaining the residential character of a particular area and the interests of the handicapped in remaining free from a zoning restriction having some disparate impact
ii. Factors considered
a) handicapped can go elsewhere
b) it affects other people equally or more than the handicapped -- hard to make the disparate impact argument --- weak impact
c) there is an interest on the part of the city to control the density of the area -- therefore the balance is in favor of the city
iii. Isn't the court just conducting a disparate impact test here anyway even though it is saying that it is balancing factors?
a) so what is value of an exemption if you have to go back in and go through the same test all over again
i. Footnote 33 -- City of Cleburne v. Cleburne Living Center
i. court held that the permit requirement was not rationally related to the purpose put forth by the city -- fears of a group home for the mentally retarded are entirely irrational
ii. most people think that Cleburne used a higher level of scrutiny than it is saying that it is using -- if this had been a normal rationally related test then it would have probably passed
a) under the equal protection clause you are entitled to a higher level of scrutiny if you are a protected class under the Constitution
b) the court applied the higher level of scrutiny but did not want to grant special protection under the constitution
i. NIMBY on group homes
ii. conditional or special use permits?
iii. dealing with group homes through legislation?