Ownership of Real Property: Rights and Limitations
Zoning and Similar Actions.

It is now well established that states and municipalities have the police power to zone land for designated uses. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nuisance law, so that states and their municipal subdivisions could declare that specific businesses, although not nuisances per se, were nuisances in fact and in law in particular circumstances and in particular localities.313 Thus, a state could declare the emission of dense smoke in populous areas a nuisance and restrain it, even though this affected the use of property and subjected the owner to the expense of compliance.314 Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even though the specified land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brick making than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard.315

With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but also the amenities of modern living.316 Consequently, the Court has recognized the power of government, within the loose confines of the Due Process Clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings,317 establish building setback requirements,318 preserve open spaces (through density controls and restrictions on the numbers of houses),319 and preserve historic structures.320 The Court will generally uphold a challenged land-use plan unless it determines that either the overall plan is arbitrary and unreasonable with no substantial relation to the public health, safety, or general welfare,321 or that the plan as applied amounts to a taking of property without just compensation.322

Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a “residential district” in a village is a permissible exercise of municipal power.323 Similarly, a housing ordinance in a community of single-family dwellings, in which any number of related persons (blood, adoption, or marriage) could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a “fundamental interest.”324 Such a fundamental interest, however, was found to be implicated in Moore v. City of East Cleveland325 by a “single family” zoning ordinance which defined a “family” to exclude a grandmother who had been living with her two grandsons of different children. Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa.326

In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not been consistent. Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street.327 Or, in another case, it struck down an ordinance that permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of two-thirds of the property within 400 feet of the proposed facility.328 In a decision falling chronologically between these two, however, the Court sustained an ordinance that permitted property owners to waive a municipal restriction prohibiting the construction of billboards.329

In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision required a 55% approval vote in the referendum to sustain the commission’s decision, and the Court distinguished between delegating such authority to a small group of affected landowners and the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative body.330

Estates, Succession, Abandoned Property.

The Due Pro-cess Clause does not prohibit a state from varying the rights of those receiving benefits under intestate laws. Thus, the Court held that the rights of an estate were not impaired where a New York Decedent Estate Law granted a surviving spouse the right to take as in intestacy, despite the fact that the spouse had waived any right to her husband’s estate before the enactment of the law. Because rights of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver, however formally executed.331

Even after the creation of a testamentary trust, a state retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration. For instance, the Great Depression resulted in the default of numerous mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts. Under these circumstance, the Court upheld the retroactive application of a statute reallocating distribution within these trusts, even where the administration of the estate had already begun, and the new statute had the effect of taking away a remainderman’s right to judicial review of the trustee’s computation of income.332

The states have significant discretion to regulate abandoned property. For instance, states have several jurisdictional bases to allow for the lawful application of escheat and abandoned property laws to out-of-state corporations. Thus, application of New York’s Abandoned Property Law to New York residents’ life insurance policies, even when issued by foreign corporations, did not deprive such companies of property without due process, where the insured persons had continued to be New York residents and the beneficiaries were resident at the maturity date of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give New York jurisdiction.333 Or, in Standard Oil Co. v. New Jersey,334 a divided Court held that due process is not violated by a state statute escheating shares of stock in a domestic corporation, including unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends held in another state. The state’s power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends.

A state’s wide discretion to define abandoned property and dispose of abandoned property can be seen in Texaco v. Short,335 which upheld an Indiana statute that terminated interests in coal, oil, gas, or other minerals that had not been used in twenty years, and that provided for reversion to the owner of the interest out of which the mining interests had been carved. The “use” of a mineral interest that could prevent its extinction included the actual or attempted extraction of minerals, the payment of rents or royalties, and any payment of taxes. Indeed, merely filing a claim with the local recorder would preserve the interest.336 The statute provided no notice to owners of interests, however, save for its own publication; nor did it require surface owners to notify owners of mineral interests that the interests were about to expire.337 By a narrow margin, the Court sustained the statute, holding that the state’s interest in encouraging production, securing timely notices of property ownership, and settling property titles provided a basis for enactment, and finding that due process did not require any actual notice to holders of unused mineral interests.338 The state “may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of interests” and it may similarly “impose on him the lesser burden of keeping informed of the use or nonuse of his own property.”339

Footnotes

313
Reinman v. City of Little Rock, 237 U.S. 171 (1915) (location of a livery stable within a thickly populated city “is well within the range of the power of the state to legislate for the health and general welfare”). See also Fischer v. St. Louis, 194 U.S. 361 (1904) (upholding restriction on location of dairy cow stables); Bacon v. Walker, 204 U.S. 311 (1907) (upholding restriction on grazing of sheep near habitations). [Back to text]
314
Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916). For a case embracing a rather special set of facts, see Dobbins v. Los Angeles, 195 U.S. 223 (1904). [Back to text]
315
Hadacheck v. Sebastian, 239 U.S. 394 (1915). [Back to text]
316
Cf. Developments in the Law: Zoning, 91 HARV. L. REV. 1427 (1978). [Back to text]
317
Welch v. Swasey, 214 U.S. 91 (1909). [Back to text]
318
Gorieb v. Fox, 274 U.S. 603 (1927). [Back to text]
319
Agins v. City of Tiburon, 447 U.S. 255 (1980). [Back to text]
320
Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). [Back to text]
321
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Zahn v. Board of Pub. Works, 274 U.S. 325 (1927); Nectow v. City of Cambridge, 277 U.S. 183 (1928); Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); St. Louis Poster Adv. Co. v. City of St. Louis, 249 U.S. 269 (1919). [Back to text]
322
See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and discussion of “Regulatory Taking” under the Fifth Amendment, supra [Back to text]
323
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). [Back to text]
324
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). [Back to text]
325
431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as a violation of substantive due process, an infringement of family living arrangements which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513. Four Justices dissented. Id. at 521, 531, 541. [Back to text]
326
Buchanan v. Warley, 245 U.S. 60 (1917). [Back to text]
327
Eubank v. City of Richmond, 226 U.S. 137 (1912). [Back to text]
328
Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). In a later case, the Court held that the zoning power may not be delegated to a church. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (invalidating under the Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church). [Back to text]
329
Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). The Court thought the case different from Eubank, because in that case the ordinance established no rule but gave the force of law to the decision of a narrow segment of the community, whereas in Cusack the ordinance barred the erection of any billboards but permitted the prohibition to be modified by the persons most affected. Id. at 531. [Back to text]
330
City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such referenda do, however, raise equal protection problems. See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967). [Back to text]
331
Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942). [Back to text]
332
Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944). Under the peculiar facts of the case, however, the remainderman’s right had been created by judicial rules promulgated after the death of the decedent, so the case is not precedent for a broad rule of retroactivity. [Back to text]
333
Connecticut Ins. Co. v. Moore, 333 U.S. 541 (1948). Justices Jackson and Douglas dissented on the ground that New York was attempting to escheat unclaimed funds not actually or constructively located in New York, and which were the property of beneficiaries who may never have been citizens or residents of New York. [Back to text]
334
341 U.S. 428 (1951). [Back to text]
335
454 U.S. 516 (1982). [Back to text]
336
With respect to interests existing at the time of enactment, the statute provided a two-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder’s office. [Back to text]
337
The act provided a grace period and specified several actions which were sufficient to avoid extinguishment. With respect to interests existing at the time of enactment, the statute provided a two-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder’s office. [Back to text]
338
Generally, property owners are charged with maintaining knowledge of the legal conditions of property ownership. [Back to text]
339
454 U.S. at 538. The four dissenters thought that some specific notice was required for persons holding before enactment. Id. at 540. [Back to text]