My Property Exam Question #1 – Never Violate The 5th Amendment on the Jersey Shore

December 12th, 2012

I wrote four exam questions for my two sections Property II. I’ll post each question separately. Feel free to take a stab at the answer in the comments.

Instructions: You are an associate at a law firm. Your lazy partner, who is quite short on time, asks you to prepare a memorandum of no more than 500 words addressing a situation affecting your clients: A-Woww, Booki, Cangelina, and Deena (collectively “the girls”). You are litigating in New Jersey trial court. New Jersey finds persuasive the precedents of the Texas Supreme Court (apparently they look fondly on the fact that a native son of Jersey became a law professor in Texas). Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.

Four best friends–A-Woww, Booki, Cangelina, and Deena, collectively known as “the girls”–live together in a beach house on Tanacre in Seaside Heights on the Jersey Shore.  Known for raucous partying, debauched behavior, and meticulously maintaining an Oompa-Loompa-shade-of-orange tan, these animal-print wearing, techno-dancing, hair-bumping girls kept every fist pumping.

Though, not everyone was happy with their vivacious lifestyles–especially Mayor Pauly “E.” Pauly “E” hatched up a number of ordinances aimed at breaking up the Seaside quartet.

First, he enacted an ordinance that limited the occupancy of a dwelling to members of a single family, and defined “family” to mean one or more person related by blood, adoption, or marriage, or not more than three unrelated persons, living together as a single unit.

Second, in order to promote Seaside’s burgeoning solar power grid, he ordered that small solar panels be installed on the roofs of all houses facing the shore, where the sun’s rays were strongest. Due to the installation of the panels, the girls had to disconnect their beloved hot tub on the roof. But that repercussion paled in comparison with the bigger problem–the girls could no longer tan next to the panels that soaked up all the sun.

In response to this ordinance, the girls submitted a proposed plan to the Mayor to expand the roof-top terrace on Tanacre, so they would have space to tan. The Mayor agreed to grant the permit to build the expansion, so long as the girls granted the City an easement that consisted of a 100 foot by 2 foot plot of land at the edge of Tanacre, facing the water. Pauly “E” argued that this land would help passerbys understand that the beach was open to the public. The girls, incensed by this condition, refused, and erected a fence so that no one could walk from the water to the sidewalk through their property. In fact, they started to charge a high fee to access the beach through their property.

The Fitchuation, who lived across the street, and was accustomed to shirtlessly strutting across the sand on Tanacre, learned of this fence and was enraged. He turned fifty shades of orange, and said “Now, we’ve got a situation.”

Then, tragedy struck. SuperStorm Snooki ravaged the Jersey Shore, causing sudden erosion of the beach. The vegetation line, which had previously been about fifteen feet from the edge of the Tanacre, was pushed away from the shore, such that three feet of the house was now in front of the vegetation line. Pauly “E” proudly stated that the City now owned an easement, free and clear, for that three feet of Tanacre. In other words, the City claimed it owned part of the Tanacre.

A few months later, the Seaside Heights Development Corporation designated the remainder of Tanacre for condemnation (everything but the three feet the city claimed it already owned). The Corporation offered the girls payment, but they refused to accept it. The corporation condemned this land for the purpose of transferring it directly to a developer, who promised to build a hot new nightclub that was expected to bring many jobs and tax dollars to the city. The condemnation was made pursuant to a comprehensive plan to redevelop the shore.

Now without a home, the girls were not totally out of luck. They also owned another vacant plot of land on the shore, Orangeacre. They determined that they wanted to build another house to help reinvigorate shore life after the tragedy. Around the same time, the city imposed a five-year moratorium on new construction on the shore, citing the need to perform environmental assessments on the beach, and determine whether building anything near the water would result in harming the fragile Jersey ecosystem. The girls’ plan to build was denied under the moratorium. Really ticked off, the girls mixed some drinks, grabbed beach towels, and started tanning and partying on the empty lot on Orangeacre.

A tad inebriated, and extremely disoriented, Booki started to wander around the beach screaming quite loudly, “Where’s the beach?” The Fitchuation told Booki she was being a nuisance, and called the police, who promptly arrested Booki for being a nuisance. As she was being carted away in the patrol car, Booki bemoaned, “My number one rule, is never violate the 5th Amendment at the Jersey Shore.”

Questions to Address:

  • What causes of action do the girls have against Mayor Pauly “E” for the two ordinances enacted? Could Pauly “E” condition the grant of the permit on giving the easement on Tanacre?
  • After SuperStorm Snooki, did Seaside acquire an easement, without paying compensation, for the three feet of Tanacre now in front of the vegetation line? Will the City’s condemnation of the remainder of Tanacre be successful?
  • Will the girls be able to build on Orangeacre?
  • What causes of actions does the Fitchuation have? Will the girls be liable to the Fitchuation for erecting a fence, and charging a fee to enter the beach?
A few of the best answers from students:
  • “As for the compensation the girls would get it only for the intrusion not for the loss of being able to tan.”
  • “Even if not a categorical taking, the court may find it a taking under Penn Coal, if the inability to hottub and tan is seen as a serious diminution in value to the property.”
  • “Applying Penn Central, the girls will not be able to build on Organceacre since (1) there is still economic value (tanning and partying) on the land, (2) the regulation has not greatly affected the girls DIBE [JB: Distinct investment backed expectations] (primary expectation is to party and tan), and (3) the character of the regulation is to protect the common good (ecosystem).”
  • “Girls DIBE are minimal as personal use for tanning and partying, and character of government action falls within police powers as protecting fragile ecosystem.”
  • “The 5 year moratorium is not permanent and Girls have alternative uses with land by tanning and partying.”
  • “They could bring up a Fair Housing Act action but they likely will not win as drinking/partying don’t meet FHA exceptions.”
  • Fitchuation “could have a claim that Orangeacre is a nuisance per accidens, in that it always has several drunk and loud girls partying on a vacant lot allowing him to seek damages or an injunction.”
  • “The girls bought the land to reinvigorate the shore life after the tragedy . . . [this is] something they were able to still accomplish with the ability to party on their property so their expectations are still being met resulting in the actions not being a takings.”
  • “The denial of the right to build on Orangeacre will not be deemed a taking because the moratorium is temporary (5 years) and there is not a complete diminution in value. Here the girls still got value out of Orangeacre as a place to party and tan.”
  • “However, if we evaluate the use of the land broadly, then there are other uses for the land such as tanning and partying on the empty lot, so that all the uses of the land has not been lost, therefore no taking and the girls will not be able to build on their land. (Penn Coal and Penn Central). “
  • “Solar panel regulation is an unconstitutional taking depriving girls of beneficial uses (hot tubbing, tanning).”
  • “Additionally, they could assert that the solar panels is putting a burden on their need to tan. It could be considered a taking by the gov. that they are unable to tan because of the solar grids.”
  • “Thus, the girls have a cause of action for just compensation which is the value of their tanning and hot tub.”
  • “Even if F[itchuation] establishes her actions were substantially interfering with his use and enjoyment of his land, B[ooki] screaming on the beach is not unreasonable considering the nature of the neighborhood.” [JB: It’s a Jersey thing.]
  • “Courts may rule living on a Jersey beach comes with the loud people.” [JB: Seems reasonable.]
  • “Unfortunately for Mayor P[auly E] (who isn’t the “brightest light in the tanning bed”), he probably cannot condition the grant of the plan on the girls’ grant of an easement to their property.”
  • “They could argue that they are protected class based on their color of orange and they are being discriminated against.”