Tenancy by the Entirety ... 362

United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414 (2002). Under Michigan law, creditors of one spouse may not reach property held by tenants by the entirety. In this case, one spouse, the husband, failed to satisfy a debt. Based on 26 U.S.C. § 6321 of the Internal Revenue Code, because he did not pay $482,446 of owed federal income tax, a federal tax lien attached to "all property and rights to property ... belonging to ... him." On receiving notice of the lien, the husband conveyed his property interest to his wife. The conveyed property was then sold to a third party. The government sought half of the proceeds from the sale.

The District Court ruled in favor of the government, concluding that the federal tax lien attached to the property at the transfer because the tenancy by the entirety was terminated. The Sixth Circuit reversed, holding that the husband had no separate interest in the property. The U.S. Supreme Court reversed again, in an opinion by Justice O'Connor. The question presented was whether property held as tenancy by the entirety is "property or rights to property" under 26 U.S.C. § 6321. Citing Drye v. United States, 528 U.S. 49, 58, 120 S.Ct. 474 (1999), the Court held that this is a question of federal law. State law determines the rights of the taxpayer in the property, but federal law determines if the holding is "property" as defined by federal statute. Looking back to the bundle of sticks, the state determines which sticks a person has, and federal law determines if the bundle of sticks is considered "property" under the federal tax lien statute. The Court concluded that the property in dispute was "property" within the meaning of the federal statute. Therefore, the government would be able to access half the proceeds of the sale. The decision rejected earlier decisions and IRS statements to decide that federal tax liens did not attach to property held by tenants by the entirety.

Justices Thomas, Stevens, and Scalia dissented. They criticized the majority for excluding the states' role in defining property, and maintained that the majority changed the law by allowing 26 U.S.C. § 6321 to extend to property not recognized under state law.

Should a new form of concurrent estate be created to confer benefits upon unmarried couples and single parents? See Carrozo, Tenancies in Antiquity: A Transformation of Concurrent Ownership for Modern Relationships, 85 Marq. L. Rev. 423 (2001).

Present Estates in Land and Future Interests ... 373

As unlikely as it may seem, the Chancery Division of the Superior Court of New Jersey recently was confronted with a case that turned on the application of the Rule in Shelley's Case, which was abolished in New Jersey in 1934. The case, In the Matter of Estate of Hendrickson, 736 A.2d 540 (N.J. Super. Ct. 1999), involved a provision in the will of Wycoff Hendrickson, who died in 1928. Hendrickson's will, which was written in 1920, provided that his farm was to his son Earle for life and then to "such person or persons as shall be his sole heir or heirs." Earle took possession of the farm and maintained it until his death on May 31, 1997, sixty-nine years after the death of his father. Although conceding that the Rule still applied in this case, the court concluded that the language used in the Wycoff Hendrickson will successfully avoided the Rule in Shelly's Case under the law as it existed in New Jersey in the 1920s. Thus, it ruled that the farm should pass to the heirs of Earle Hendrickson and not to his devisees (as would be the case if the Rule applied giving Earle a fee simple estate beginning in 1928).

For a spirited critique of the recent rush to abolish the rule against perpetuities, see Joel Dobris, The Death of the Rule Against Perpetuities, or the RAP Has No Friends: An Essay, 35 Real Prop. Prob. & Tr. J. 601 (2000) and, in a similar vein, Angela M. Vallario, Death By A Thousand Cuts: The Rule Against Perpetuities, 25 J. Legis. 141 (1999); John G. Shively, Note, The Death of the Life in Being- The Required Federal Response to State Abolition of the Rule Against Perpetuities, 78 Wash. U.L.Q. 371 (2000); Brian Layman, Note, Perpetual Dynasty Trusts: One of the Most Powerful Tools in the Estate Planner's Arsenal, 32 Akron L. Rev. 747 (1999) and Purchase Option Invalid Under Rule Against Perpetuities, Reynolds v. Gagen, New York Real Estate Law Reporter, December 2001, at 6.

Chapter 7: Landlord and Tenant: Housing as a Public Utility ... 411

For an interesting perspective on the landlord/tenant reform process, see Gerald Korngold, Whatever Happened to Landlord-Tenant Law?, 77 Neb. L. Rev. 703 (1998).

Building improvements typically translate to higher rents, and tenants need to know what to expect. Sherwin Belkin, a lawyer who represents landlords said, "I have my clients obtain an express representation that the tenant understands the improvements are going to result in a rent increase." See Jay Romano, Upgraded Apartment, Higher Rent, New York Times, July 14, 2002, at 5. See also Jocelyn Stewart, Council Haults Evictions, Will Tighten Law, Los Angeles Times, July 17, 2002, at 4. This article explains how, in a victory for tenants, the city of Los Angeles has imposed a six month moratorium on evictions by landlords who are improving buildings.

For a discussion of the relationship between the doctrine of permissive waste and the warranty of habitability see Anthony J. Fejfar, Article: Permissive Waste and the Warranty of Habitability in Residential Tenancies, 31 Cumb. L. Rev. 1 (2001).

What do the lower New York City development plans mean for tenants of buildings near Ground Zero? Creating new residential space is one of the goals of the redevelopment. Matt Higgins, a spokesman for the Lower Manhattan Development Corporation, said "Our goal is to enhance the residential housing in lower Manhattan, not diminish it..." See Graham Rayman, WTC Plans Put Homes in Jeopardy; Residents Upset Over Uncertainty, Newsday (New York, NY), July 18, 2002, A50.

Recent cases to explore landlord and tenant duties when tenant vacates with time left on a term of years lease include Faith Reformed Church of Traverse City, Michigan v. Thompson, 248 Mich. App. 487, 639 N.W.2d 831 (2001) and Summit Towne Centre, Inc. v. Shoe Show of Rocky Mountain, 2001 Pa. Super. 305, 786 A.2d 240 (2001).

Other recent law review articles of interest include:

• Charles L. Armstrong, Note: Who Pays the Price for Defective Home Construction? A Note on Baecher v. Centex Homes, 53 Baylor L. Rev. 687 (2001).
• Michael Madison, Article: The Real Properties of Contract Law, 82 B.U.L. Rev. 405 (2002).
• Mary B. Spector, Tenants' Rights, Procedural Wrongs: The Summary Eviction and the Need for Reform, 46 Wayne L. Rev. 135, 209 (2000).
• Stephanie G. Flynn, Duty to Mitigate Damages Upon Tenant's Abandonment, 34 Real Prop., Prob. & Tr. J. 721 (2000).

For a compelling account of tenants forced to vacate so that their landlord could move back in, see Dennis Hevesi, Owner Needs a home, So 23 Tenants Must Go, New York Times, July 28, 2002, at 3N.

Rent Control ... 455

For an interesting examination of recent precedent to reject a takings challenge waged against Santa Monica's rent control laws, see S. Keith Garner, Novel Constitutional Claims: Rent control, Means-Ends Tests and the Takings Clause, 88 Calif. L. Rev. 1547 (2000).

Rent control continues to be a controversial topic. Is it an idea of the past? In a continuing battle over rent control, residents often maintain that it is unfair to saddle them with rent increases that they cannot afford. On the other hand, landlords counter that they cannot afford to continue to rent at deflated rates. For a discussion of the debate as waged in the mobile home rental market see Sally Ann Connell, Bid to Increase Mobile Homes' Rent Threatens Retiree Havens, Los Angeles Times, July 31, 2002, at 7.

Some in Boston are trying to revive rent control. See Sarah Schweitzer, Rent Debate Centers on Impact of Decontrol, The Boston Globe, July 29, 2002, A1. Nationally, many fear the death of rent control. See Jocelyn Stewart, Secession Worries Tenants, Owners, Los Angeles Times, July 28, 2002, at 1; Dennis Hevesi, Skirmishes Signal Rent Law Countdown, New York Times, July 7, 2002, at 1; Thomas Grillo, Rent Control Flares Again Sky-High Housing Costs Prompt Calls to Revive Measures Repealed in 1994, The Boston Globe, June 23, 2002, at H1.

See Kumar Katyal, Article: Architecture as Crime Control, 111 Yale L.J. 1039 (2002). This article explores how attention to city and neighborhood architectural design can reduce criminal activity, and how rent control could contribute to decreased crime rates by essentially forcing people to stay in the same location, thereby promoting stability and accountability.

Chapter 8: Rights to Use the Land of Another ... 467

More and more airports need to expand. For a note to explore how residents are affected by such expansion by examining how airports acquire prescriptive easements, see David Casanova, Comment: The Possibility and Consequences of the Recognition of Prescriptive Aviation Easements by State Courts, 28 B.C. Envtl. Aff. L. Rev. 399 (2001).

For recent treatment of conservation easements see Jeffrey Tapick, Student Note: Threats to the Continued Existence of Conservation Easements, 27 Colum. J. Envtl. L. 257 (2002); Melissa Thomson & Jessica E. Jay, Article: An Examination of Court Opinions on the Enforcement and Defense of Conservative Easements and Other Conservation and Preservation Tools: Themes and Approaches to Date, 78 Denv. U.L. Rev. 373 (2001); Peter D. Nichols, Commentary: Do Conservation Easements and Water Mix (In Colorado)?, 5 U. Denv. Water L. Rev. 504 (2002); See also Robert Fischman & Jaelith Hall-Rivera, Article: A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery Under the Endangered Species Act, 27 Colum. J. Envtl. L. 45 (2002).

For a recent twist on themes explored in Cushman v. Barnes, see Peter Bay Homeowners Association, Inc. v. Stillman et al, 294 F.3d 524 (3^rd Cir. 2002).

For other recent relevant cases on easements generally, see Law v. Monongahela Power Co., 210 W.Va. 549 (S.Ct. of App. 2001); Hodge v. Bluebeard's Castle, Inc. 2002 V.I. LEXIS 11 (Territorial Court of Virgin Islands 2002).

For a discussion of personal and commercial easements, easements in gross, transferability and assignability, and creation of easements and licenses, see Michael J. Polak, O'Donovan v. McIntosh: Changing the Contours of Maine's Easement Law, 52 Me. L. Rev. 447 (2000).

For a brief treatment of the merger doctrine and the termination of easements by merger, see Sarah Stolpman, Student Article: Property Law- To Merge or Not to Merge: Determining the Scope of Mortgage; The Mortgage Exception to the Merger Doctrine, 27 Wm. Mitchell L. Rev. 1331 (2000).

For an article to discuss commercial easements in the context of Presault v. U.S., see Jill K. Pearson, Note: Balancing Private Property Rights with Public Interests: Compensating Landowners for the Use of Railroad Corridors for Fiber-Optic Technology, 84 Minn. L. Rev. 1769 (2000).

See Wayne C. Lusvardi, John G. Wright, & Todd Amspoker, Appraising Linear Subordinate Easements in Utility Corridors, Appraisal Journal, July 1, 2000, at 250 is an abstract that examines public prescriptive easements and subsurface utility easements. The article explores how government water agencies in California are seeking to acquire easements and licenses in order to avoid the high cost of acquiring property rights in private property.

For a look at easements as applied to timber rights, see Timber Rights Constitute a Valid, Perpetual Estate in Land, New York Law Journal, May 19, 2000, at 27, which discusses Fischer, et al, v. Zepa Consulting A.G., et al., 95 N.Y.2d 66 (N.Y. App. 2000).

For a case involving riparian rights and a prescriptive easement see Thury v. Britannia Acquisition Corp. 292 A.D.2d 373 (N.Y. App. 2000) where owners of a home adjacent to Northport Harbor tried to have the court declare a prescriptive easement over the marina land. Plaintiffs failed because they could not prove that their use was open and notorious, adverse, continuous, under a claim of right, and hostile. See Homeowners Seeking Access to Harbor Lack Riparian Rights, Prescriptive Easement; Thury v. Britannia Acquisition Corp., New York Law Journal, September 6, 2000, at 21.

For a modern-day take on Moseley v. Bishop, see A.D. Dority, Jr. v. Irene Hiller, 162 Ore. App. 353 (Ore. App. 1999).

Easements by Operation of Law ... 482

A recent Wisconsin case to illustrate courts' reluctance to imply easements is Schwab v. Timmons, 589 N.W.2d 1 (Wis. 1999). Plaintiffs owned lake-front property that was bordered on the south by private land, on the north and east by a cliff and rocky terrain, and on the west by Green Bay (the bay, not the city). Although the plaintiffs could reach a public road on foot, their land could not be reached by motor vehicle. The plaintiffs submitted evidence that the cost of building a road over the cliff was at least $700,000. Consequently, they requested that the court imply an easement of necessity on their behalf across the parcel of land to the south, even if it had never been part of a common parcel with their lot. The Supreme Court of Wisconsin refused to imply such an easement, stating that to do so would be "to sanction hidden easements." Id.

Chapter 9: Privately Imposed Limitations on the Use of Land ... 515

Conditional and Determinable Estates ... 515

In 1999, the Court of Appeals of New Mexico (the state's highest court) upheld language in a 1935 deed that prohibited the use of the property for immoral purposes or for the manufacture or sale of liquor. Prieskorn v. Maloof, 991 P.2d 511 (N.M. 1999). If the restrictions were violated, title was to revert to the grantor. The restrictions were challenged as an unlawful restraint on alienation. Without determining whether the deed in question created an estate in fee simple subject to a condition subsequent or a fee simple determinable, but acknowledging that it was one or the other, the court upheld the restriction as valid.

Restrictive Covenants ... 534

See Susan French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop., Prob. & Tr. J. 225 (2000).

At the conclusion of the materials on restrictive covenants, it would be interesting to explore with students in some greater detail the implications of common interest community (CIC) living, which has come to represent the main staple of suburban and metropolitan residential development across diverse economic strata. This ever-proliferating form of housing relies on a declaration of covenants, conditions and restrictions (CC&Rs) to privately control land use, services and conduct. Written by developers and in place from the start of development construction, these servitudes are likened to covenants "that run with the land." Essentially, they serve as a sort of privatized zoning smorgasboard.

But does excessive reliance on servitudes do more to destroy community than to build it? The following material is excerpted from Prof. Paula A. Franzese's article, Does It Take a Village? Privatization, Patterns of Restrictiveness and the Demise of Community, 47 Vill. L. Rev. 553 (2002). In this article, Prof. Franzese argues that as presently structured, common interest communities - the promised land of connection and civility - are destined to disappoint those seeking an authentic sense of community. Finding meaningful solutions to this fundamental paradox is important, because community does matter and our diminishing stocks of "social capital" impose considerable strain on social and legal systems. She maintains that understanding more about social capital, norms of generalized reciprocity and the dynamics of community building sheds new light on common interest community deficiencies and bolsters the resolve to discover creative ways to mend the broken promises of this main staple of suburban and metropolitan development. Prof. Franzese concludes that relevant community paradigms help to recast the reform dialogue and accompanying legal discourse in terms that facilitate cooperation, compromise and self-interest rightly understood:

In the CIC setting, covenants have been devised to regulate everything from whether pets are limited or prohibited, to the permissibility and style of one's screen and storm doors, to the ratio of grass, trees and shrubs allowed on one's property. Restrictions are imposed to regulate the mounting of basketball hoops, the retrieval of dog droppings, the posting of for-sale signs, the trimming of bushes and the color of window curtains. Servitudes exist mandating that any doghouse be made of the same material as the mater house and hidden from view by a six-foot fence or prescribed greenery. Rules exist to prohibit wok-cooking, compel poorly dressed guests to ride in service elevators and prohibit those wearing flip-flops from sitting in common-area chairs . . . Reliance on excessive regimentation has reduced the relevant inquiry of resident relations to the adversarial ‘what is my neighbor doing?' as opposed to the far more desirable ‘how is my neighbor doing?'

Franzese, supra at 559. Reports of trouble in CIC paradise abound. For example, in Atlanta, Georgia, a family recounts that its homeowners' association fined them $25 per day for having green grass in winter. An applicable covenant obliges residents to plant Bermuda sod in their front yards, which turns a telltale dormant brown during the winter months. In Charlotte, North Carolina, a condominium owner was fined $75 per day by his homeowners' association because his dog exceeded the weight limitations imposed by covenant. He incurred $11,000 in fines and declared bankruptcy. When a Houston, Texas, CIC resident who was suffering from a brain tumor fell behind on $600 in dues, his association sued him, generating $4,600 in legal fees. When he was unable to pay, the association sold his house, valued at $55,000, for $17,000. Later, the foreclosure was voided. Id. at 574.

Sadly, these sorts of incidents are neither isolated nor unusual, prompting the formation of a national support group called "Homeowners Supporting Homeowners in Associations." The group has adopted a purple flamingo as a symbol of solidarity and protest against associations and boards. See Elizabeth Razzi, House Rules, Kiplinger's Pers. Finance, Sept. 2000, at 86, 87. The group's founder, chagrined by association overreaching, has one in his front yard, "just to bug the association," and has sold many more of the flamboyant steel sculptures to other irked residents. The term "No HOA" (meaning, "No Homeowners' Association") is starting to appear in real estate ads because, in the words of one realtor, "for most people it is a real selling point." Id. at 575.

Increasing levels of acrimony and conflict have prompted some state legislatures to intervene in the name of consumer protections. Across the country, legislatures are considering bills to curb overreaching restrictions and potentially troublesome association and board action. For example, in Nevada, legislative enactments have created an ombudsman's office to assist CIC residents with association problems and to require that association managers be licensed. In Vermont, a right to dry bill was introduced that would void prohibitions against clotheslines. In Virginia, proposed law would make it a crime to prohibit a homeowner from flying the American flag. In California, a new statute prohibits associations from banning pets. Franzese, supra at 574.

At a concomitant rate, courts are entering the fray as reluctant arbiters of chagrined complainants' challenges to the propriety of given rules and association or board actions to enforce them. A survey of 600 homeowners' associations discovered that more than 44% of the boards had been threatened with lawsuits in a year's time. Conversely, homeowners' associations are using the courts to compel residents to comply with governing rules and restrictions. Conflicts are not limited to residents suing associations or associations suing residents. Increasingly, neighbors are turning on each other. Franzese, supra at 573.

On the question of remedies for CIC rule violations, see Amos B. Elberg, Note: Remedies for Common Interest Development Rule Violations, 101 Colum. L. Rev. 1958 (2001). See also David E. Grassmick, Note: Minding the Neighbor's Business: Just How Far Can Condominium Owners' Associations Go In Deciding Who Can Move Into the Building?, U. Ill. L. Rev. 185 (2002).

What is the appropriate standard of judicial review when courts are called upon to review the determinations of homeowner associations and governing boards? See Paula A. Franzese, Common Interest Communities: Standards of Review and Review of Standards, 3 Wash. U.J.L. & Pol'y 663 (2000), for an assessment of the business judgment rule, which is applied in some jurisdictions and the rule of reasonableness, advanced in other states.

In Mulligan v. Panther Valley Property Association, 766 A. 2d 1186 (N.J. App. Div., 2001) Plaintiff, the owner of a home in Panther Valley, a private common interest community in Warren County, New Jersey, sued the homeowners' association alleging that amendments to the Declaration of Covenants, Conditions and Restrictions ("Declaration") failed the test of reasonableness. Specifically, the New Jersey Appellate Division ruled on the propriety of amendments which declared 1.) That the association would be authorized, without notice to the homeowner, to file with the Warren County Clerk a "Notice of Continuing Violation" if the homeowner persisted in violating any Declaration or bylaw or rule; 2.) That a homeowner's entitlement to inspect the association's books and records would be limited to a review of the books for the current fiscal year and the two preceding fiscal years that the association would be vested with discretion in withholding from inspection any documents that in its "reasonable business judgment" would compromise privacy and 3.) That a homeowner would be liable for the association's attorney's fees and costs if the association brought suit to enforce the Declaration. The court chose, as a matter of first impression in New Jersey, to apply the reasonableness standard (as opposed to the business judgment rule) in reviewing the propriety of the amendments. Significantly, the court refused to afford the amendments a strong presumption of validity, mindful that they were promulgated after plaintiff began residence in Panther Valley, and required no more than a simple majority vote for passage. The court concluded that the first amendment failed to pass muster, but that the second and third restrictions were reasonable. The second restriction, limiting homeowner inspection of the books and records, was deemed consistent with the association's fiduciary responsibilities and not overbroad. The third, obliging an intransigent member to pay association costs and attorney's fees, was found to be consistent with considerations of basic fairness. The firs amendment, however, leaves the arena of private enforcement and endeavors instead to create a publicly-recorded lien upon an owner's property. This provision was struck down as unreasonable, insofar as it deprived the homeowner of notice.

How much deference are association actions entitled to? On the one hand, it is important for courts to resist second-guessing the determinations of those closest to the "front lines." Courts should be mindful of the underpinnings of association functioning and structure and mindful of the need to deter those who would be inclined to seek as a matter of course judicially-created exemptions from worthy restrictions. On the other hand, association overreaching and the significant potential for abuse must be kept in check, to protect against the tyranny of the minority - those select few in leadership and enforcement.

How might the traditional model of CIC governance be altered? Do developers have too much power for too long? Do conventional paradigms, which favor regulation and enforcement, tend to produce rigid, uninspired leadership models, or is it the other way around? It has been suggested that imposing restrictions on people who are largely strangers to each other, and then prescribing aggressive measures to enforce these restrictions, leads to a misplaced preoccupation with control and compliance. Paula Franzese, Does it Take a Village? Privatization, Patterns of Restrictiveness and the Demise of Community, 47 Vill. L. Rev. 553, 588 (2002). Does reliance on a declaration of covenants, conditions and restrictions to impose order and shared concerns contribute to a false sense of what "community" as a construct should be, rather than what it could be? Or are restrictions simply an efficient way to preserve property values and maintain the character of the development?

It would be interesting to ask students what they would include in an agenda for reform of the traditional CIC model. How might the dialogue be recast to facilitate cooperation, compromise and, in deTocqueville's words, "self-interest rightly understood?" A leader in this arena has suggested that the emphasis must shift away from telling residents what they cannot do towards initiatives that help to build authentic community. Wayne S. Hyatt & James B. Rhoads, Concepts of Liability in the Development and Administration of Condominium and Homeowners' Associations, 12 Wake Forest L. Rev. 915, 917-18 (1976). Would it make sense to move away from corporate governance models in favor of more participatory structures that decentralize authority? Could planners work more creatively with space and design to better achieve diversity in architectural character, uses and population?

The Restatement (Third) of Servitudes: The Restatement (Third) provides that developers should turn control over to the homeowners' association after the time reasonably necessary to protect their interests in completing and marketing the project. Further, it would limit the given association's power to regulate conduct inside units to rules aimed at curbing nuisances. Id. Are these sound guideposts?

Might it be preferable to take a "wait and see" approach to the implementation of covenants, conditions and restrictions? In other words, would it be more desirable to simply have in place from the outset of development a skeletal set of restrictions deemed vital to community planning, and then, over time, supplement as needed?

What advice should the attorney for a given homeowners' association give his or her clients when residents are threatening to sue? If it is true that community association law as it is traditionally practiced might well be buckling under its own success, might it be worthwhile for the association to concede that there are limits to the acceptable extent of control? See Paula Franzese, Does it Take a Village? Privatization, Patterns of Restrictiveness and the Demise of Community, 47 Vill. L. Rev. 553, 593 (2002).

Other recent cases of interest in the CIC arena include:

Villa Milano Homeowners Association v. Il Davorge, 102 Cal. Rptr. 2d 1 (decided Nov. 6, 2000). This decision is significant insofar as it finds the California Appellate Division striking down a s unconscionable a binding arbitration clause contained in a common interest community Declaration. In this case, homeowners filed a complaint against the developer seeking damages for alleged construction and design defects. The developer filed a petition to compel arbitration, pursuant to the terms of the Declaration, and the Court of Appeal, affirming the trial court, struck down the arbitration clause as procedurally and substantively unconscionable as well as repugnant to public policy. The clause was infected by developer self-interest, insofar as it was unilaterally drafted, signed and recorded by the developer alone, and the nature of the homeowners' complaint, alleging construction and design defects, rendered it subject to judicial review pursuant to the California Code of Civil Procedure.

Heath v. Uraga, 24 P.3d 413 (Wash. App. 2001). Here, the Washington Appellate Court upheld an architectural decision to deny homeowner Uraga permission to build a home deemed too high, with a pitch too steep, notwithstanding the fact that the appointed decision maker was not an elected member of the architectural review board and was potentially infected with self-interest. The relevant Declaration prohibits building a home unless the architectural committee or its representative approves the proposed plans. Thereafter, the architectural committee essentially ceased to exist, and its last member, just before resigning, designated one Heath as his "representative." Heath owned the home adjacent to plaintiff Uraga's, and was concerned with protecting his view from intrusion by Uraga. The court concluded that the appointment of a decision-maker with an interest in the outcome was not prohibited by the Declaration, that Heath had carefully evaluated the submitted proposal, and that his refusal to approve the plans satisfied the "reasonableness and good faith" tests established by earlier Washington caselaw, most notably Riss v. Angel, 934 P.2d 669 (1997).

Woodside Village Condominium Ass'n, Inc. v. Jahren, 806 So.2d 452 (Fla. 2002). In this case, the Florida Supreme Court ruled that condominium owners have the authority to amend their governing Declaration on a broad array of matters, including imposing restrictions on leasing. Here, the original 1979 Declaration was amended in 1997, by required two-thirds vote of the unit owners, to limit the leasing o units to a term of no more than nine months in any twelve month period. The amendment was passed in response to resident concerns that too many units were becoming non-owner occupied, and that this could adversely impinge upon overall quality of life in the community. Respondents, in violation of the amendment, argued that it was unreasonable, arbitrary and capricious and deprived them of uses that were permissible at the time of their purchase. The Florida Supreme Court rejected those contentions, noting that respondents were on notice that Declaration provisions could be amended. Moreover, in the court's estimation, this particular amendment foster the laudable goal of owner occupancy of condominium units, a goal consistent with the very purpose of common interest community living.

Recently, there has been a surge of scholarship in the arena of disputes over the ownership of "human capital" in the changing workplace. What is the propriety of servitudes imposed by employers to restrict employee conduct? See Katherine V.W. Stone, Commentary: Knowledge at Work: Disputes Over the Ownership of Human Capital in the Changing Workplace, 34 Conn. L. Rev. 721 (2002); Catherine L. Fisk, Commentary: Reflections on the New Psychological Contract and the Ownership of Human Capital, 34 Conn. L. Rev. 765 (2002); Alice J. Baker, Article: Legislative Prohibitions on the Enforcement of Post Employment Covenants Not to Compete in the Broadcasting Industry, 23 Hastings Comm. & Ent. L.J. 647 (2001).

The Power to Enforce ... 544

Recent Hawaii courts have shown a reluctance to enforce residential restrictive covenants unless the covenants are quite specific. In Hiner v. Hoffman, 977 P.2d 878 (Ha. 1999), the Hawaii Supreme Court refused to enforce a restriction limiting homes to one story on the grounds that the covenant failed to adequately define the height restriction. See J. David Breemer, Hiner v. Hoffman: Strict Construction of a Common Restrictive Covenant, 22 Hawaii L. Rev. 621 (2000).

See Dwight H. Merriam, The 2000 Ziplers: The Sixth Annual Zoning and Planning Law Report Land Use Decision Awards, 24 Zoning & Plan. L. Rep. 9, (2001) for a review of some of the wackier land use cases of the year.

An article that may be used in connection with Cheatam v. Taylor is Michael V. Hernandez, Annual Survey of Virginia Law, 34 U. Rich. L. Rev. 981 (2000). The article is useful because it offers a modern day take on vertical and horizontal privity, restrictive covenants, covenants that touch and concern the land, affirmative covenants, servitudes and easements.

Covenants that Touch and Concern the Land ... 558

For a discussion of the often vexing touch and concern doctrine as well as a fine reflection on the current state of the law of covenants, see A. Dan Tarlock, Touch and Concern is Dead: Long Live the Doctrine, 77 Neb. L. Rev. 804 (1998). See also Susan French, The Touch and Concern Doctrine and the Restatement (Third) of Servitudes: A Tribute to Lawrence E. Berger, 77 Neb. L. Rev. 653 (1998).

Chapter 11: Housing Discrimination ... 623

Should public housing be reserved only for the poorest range of people? For an article to explore the question and discuss the current state of housing assistance and how housing remains largely segregated, scarce and in need of support, see Cara Hendrickson, Article: Racial Desegregation & Income Deconcentration in Public Housing, 9 Geo. J. Poverty Law & Pol'y 35 (2002).

The 1968 Fair Housing Act endeavored to outlaw discrimination in the housing market. Yet, discrimination continues. See Robert Schwemm, Article: Discriminatory Housing Statements and 3604(c): A New Look at the Fair Housing Act's Most Intriguing Provision, 29 Fordham Urb. L.J. 187 (2001).

Chapter 12: Local Land Use Controls ... 653

For a fine perspective and summary of significant new issues in zoning, see Patricia Salkin (ed.), Trends in Land Use Law from A to Z: Adult Uses to Zoning, ABA Press (Section of State and Local Government Law) 2001.

For an interesting treatment of exactions for the new century, see Lee Anne Fennell, Hard Bargains and Real Steals: Land Use Exactions Revisited, 86 Iowa L. Rev. 1 (2000).

A recent New Jersey case involving subdivisions is Landy v. Cahn, 348 N.J. Super. 592 (N.J. Super. 2002).

An article that explains how the growth of our communications industry has led to the technology companies using rights-of-way with little or no compensation or planning is Danaya C.Wright & Jeffrey M. Hester, Article: Pipes, Wires, and Bicycles: Rails-To-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements from the Nineteenth to the Twenty-First Centuries, 27 Ecology L.Q. 351 (2000). See also Justin Gillis & Jackie Spinner, A Nation Plugged In and Dug Up; Streets Scarred in Race to Wire America, The Washington Post, July 15, 1999, at A1.

For a recent case involving a dispute over a variance, see Victor Recchia Residential Construction, Inc. v. Cedar Grove Zoning Board of Adjustment, et al, 338 N.J. Super. 242 (N.J. App. 2001).

See Grant of Variance for Multiplex Movie Theater Withstands Challenge by Local Residents; Marro v. Zoning Board of Appeals of the City of Long Beach, New York Law Journal, March 20, 2000, at 21 for a case involving grass roots activity against the granting of a variance. In that case, the City of Long Beach was granted a variance by the zoning board to build a movie theater, and residents in the community sought to reverse the grant. The residents argued that a theater would bring congestion and other adverse consequences. The court allowed the variance to stand.

For a brief discussion involving a use variance, see Not-for-Profit Corporation Is Allowed To Operate Women's Residence in Babylon; Long Island Teen Challnenge, Inc. v. Horsley, New York Law Journal, May 8, 2001, at 17. There the petitioner succeeded in reversing the denial of a use variance for a women's residence. The court decided that the residence would not impose an undue burden. For a brief discussion involving an area variance, see Home Depot Project Zoning Rejection is Arbitrary, Capricious and Abuse of Discretion; WF Shirley, L.L.C. v. Board of Zoning Appeals of the Town of Brookhaven, New York Law Journal, September 26, 2001, at 17. There the petitioner, owner of a shopping center, tried to set aside the town zoning board's rejection of its application for a special permit and area variance. The owner needed the variance to construct a Home Depot on the premises. The application was denied due to the speculated risk on property values, traffic design defects and other factors. The petitioner succeeded and the court set aside the rejection. Another brief and informative discussion on area variances is found in John M. Armentano, Self-Created Hardships; Five Factors - Not One - Decide Variance Applications, New York Law Journal, January 23, 2002, at 5.

For a discussion involving amendments and spot zoning, see Miller v. Kozakiewicz, 289 A.D.2d 494 (N.Y. App. 2001). In that case petitioners sought unsuccessfully to annul an amendment that rezoned land in the town of Riverhead in order to construct a shopping center, arguing that the amendment was invalid because it did not promote the public health, safety and general welfare and would result in spot zoning. See also Court Decisions, New York Law Journal, July 25, 2000, at 30; see Terry Rice, 1999-2000 Survey of New York Law: Zoning and Land Use, 51 Syracuse L. Rev. 765 (2001).

For an exploration of recent developments in the Second Circuit's treatment of land use and zoning law, see Gregory W. McCracken's article, Second Circuit Survey: Land Use and Zoning Law: Recent Developments in the Second Circuit 1999-2000, 21 Quinnipiac L.Rev. 87 (2001).

Specialized Controls ... 686

Can and should zoning regulations be implemented to regulate home-based voyeur web sites? See Francesca Ortiz, Zoning the Voyeur Dorm: Regulating Home-Based Voyeur Web Sites Through Local Land Use Laws, 34 U.C. Davis L. Rev. 929 (2001). 

For an interesting comment to discuss the constitutionality of zoning regulations that restrict adult businesses, see Ashley C. Phillips, Comment: A Matter of Arithmetic: Using Supply and Demand to Determine the Constitutionality of Adult Entertainment Zoning Ordinances, 51 Emory L.J. 319 (2002).

Aesthetics and Historic Preservation ... 686

For a compelling exploration of "the utopian impulse to design and legislate public space," as reflected in zoning regulation and legislation, see Amy Mandelker, Writing Urban Spaces: Street Graphics and the Law as Postmodern Design and Ordinance, 3 Wash. U.J.L. & Pol'y 403 (2000).

Chapter 13: Environmental Protection ... 699

Can and should the global environment be privatized? Can and should property-rights solutions to environmental problems be internationalized? See Terry L. Anderson & J. Bishop Grewell, From Local to Global Property: Privatizing the Global Environment?: Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?, 10 Duke Env L. & Pol'y Forum 73 (1999).