UnGodly Zoning: A Non-weird Hypo
bfudenbe at LAW.MIAMI.EDU
Fri Jan 17 10:12:00 PST 1997
>From the little I know of Sandy Levinson, he seems to like to pick
situations on the messy borders of doctrine--even in areas where the core
is so confused that a less ambitious fellow would consider clarifying the
core a worthy achievement.
The law of regulatory takings is, if anything, more confused than the law
of religious accommodation. And the hypo is even more complex than
"mere" regulatory takings.
The usual question in zoning law is, how far can the government go without
compensating? It is usually assumed, or explicitly stated, that the
government can take any property right if it pays for that right.
But I assume that Rick Duncan would (as would I) find it impermissible for the
government to ban his home-schooling project and pay compensation for it.
At least if the measure of compensation is the usual--objectively
determined--fair market value of that right--i.e., the difference in market
value between the property without the restriction, and the property with it.
(If we use the opposite measure--its subjective value to the homeowner--
then we might say that he has no complaint, for he agrees to the deal.
I would still find such a measure unconstitutional, for reasons I won't go
Thus, one point is that rights in the use of your home are not mere
"property" rights. Now Sandy is probably right, that this "gets us into
all sorts of meta-questions about what 'homeness' is." But if so, that
does not seem *especially* troubling. Whenever we single out something as
especially important, we get into meta-questions about where the
boundaries of that thing are. (Witness debates here recently about what
To finally answer Sandy's question:
The difference between his example and mine (or Rick's) may turn on where
we draw the dividing line between "home" and non-home: as he suggests,
the Barnes museum may have crossed over to non-home. That is, it may
depend on the entity as a whole--is it predominately a home, or is it
predominately something else?
But the distinction may turn, more narrowly, on the forbidden activity
--is it a "home-type" activity, or is it not? (If we use this distinction,
we could forbid many activities in the home, even while all agree the
structure remains a "home.") If so, we could forbid a museum to which
the public is invited, but could not forbid football-watching or
noncommercial schooling. And if we can forbid home-businesses of the type
Sandy suggests, where clients come for consultation, it may be because
that type of business is not "home-type"--even though the structure
remains a "home." Now I don't know whether we in fact can ban such a business;
Sandy has picked (it appears) another example at the border.
On Fri, 17 Jan 1997, Sanford Levinson wrote:
> Brooks Fudenberg writes:
> Thus, they could ban commercial activities, under a theory that
> >if not banned, *some* commercial activity will become very successful, and
> >place a traffic burden on the community. Moreover, once you start
> >charging, you have entered the stream of commerce, where regulation is
> >given freer range than in the home.
> But, on the assumption that the Barnes Foundation doesn't charge its
> visitors, how precisely is it a "commercial activity"? Is the difference
> that no one would describe the Barnes Foundation (at present) as "a home"?
> But this gets us into all sorts of meta-questions about what "homeness"
> means. I assume that local zoning ordinances can reach home-based
> businesses even if they consist only of an office to which clients come for
> consultation. (I don't know much about zoning, and maybe I am incorrect in
> my assumption. If so, I look forward to enlightenment.)
> Sandy Levinson
Brooks R. Fudenberg
University of Miami School of Law
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