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Original Acquisition!

INTELLECTUAL PROPERTY!

General Principles:!
1. Properties that are created by the human mind!
2. Creation are transformed into physical objects!
a. Physical copy of the book or in the case of songs and music the copy of the
recording is owned by the buying public!
b. Many can use it without interfering with each others use. It is a public good or a
good that can be consumed without reducing any other persons consumption of it.
However, the intellectual content of the created object is owned by the author or the
creator.!
c. Authors and inventors are given an incentive by giving a limited monopoly on
writings and inventions.!
3. Three (3) types!
a. Copyrights - protects original works of the authorship, i.e. books, computer
programs, plays, sculptures, songs!
b. Patents - protects new inventions!
c. Trademarks - protect words, names and other symbols which are used by
merchants to distinguish their goods and services form others!
4. System of allocation of rights!
a. First in Time!
b. Principal right is the right to exclude others from using the intellectual property.!
c. Governed by national laws but are increasingly affected by international law.!
5. Intellectual Properties are protected by Special Legislation!
a. Not recognize: Justice Brandeis - The general rule of law is, that the noblest of
human productions - knowledge, truths, ascertained, conceptions, and ideas
became, after voluntary communications to others, as free as the air to common
use.!
b. Cheney Brothers v. Doris Silk Corporation (USCA, 2nd Circuit, 35 F.2d
279(1929)!
i. Facts:!
1. Cheney Brothers - produce new patterns for silk products every season but
does not seek patent application for each design.!
2. Doris Silk Corporation - copied one of the popular design of Cheney. Court
assumed knowledge.!
3. Cheney seeks an equitable injunction only to last during the season against
Doris for silk design copy. !
ii. Ruling!
1. In the absence of of some recognized right at common law or the statues, a
mans property is limited to the chattels which embody his invention and
others may imitate these at their pleasure.!
2. To exclude others from the enjoyment of a chattel is one thing, to prevent any
imitation of it, to set up a monopoly of a plan of its structure, give the author a
power over his fellows vast greater a power which the Constitution allows
only Congress to create.!
iii. Notes.!
1. Plaintiff is not suing for infringement of patent.!
2. IP has to be covered the IP law otherwise it will be owned by the commons!
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3. INS v. AP was not applied. Not analogous to the news. The court cannot
create a common law patent.!
c. International Wire Service v. Associated Press, 248 US 215, 250 (1918)!
i. Facts: !
1. Two US news services (INS and AP) were in the business of reporting in the
US about the war in Europe. !
2. INS news service was barred from using Allied telegraph lines to report news
because of some unfavourable reporting, effectively shutting down their war
reporting. (William Hearst the owner of INS, was an outspoken critic of the
allies and an open supporter of the Germans.)!
3. INS gained access to AP news through bribery, news bulletin boards and
early editions of newspapers. INS newspapers had to wait for AP to post
news, then directly lifts factual stories from AP bulletins and wired them to
newspapers without attributions. !
ii. Ruling!
1. The Court held in favor of the AP. The Court held that information found in
the AP news was not copyrightable as "the information respecting current
events contained in the literary production is not the creation of a writer but is
a report of matters that ordinarily are publici juris; it is the history of the day."
Pitney approached the issue from the perspective of unfair competition. Hot
News Doctrine -there is a quasi-property right in the news as it is "stock
in trade to be gathered at the cost of enterprise, organization, skill, labor and
money, and to be distributed and sold to those who will pay money for it".
Given the "economic value" of the news, a company can have limited
proprietary interest in it against a competitor (but not the public) who would
attempt to take advantage of the information.!
d. In Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) !
i. Facts: Feist published a compiled telephone directory that includes of Rural
Telephone without authority.!
ii. Ruling: Examined the purpose of copyright and explained the standard of
copyrightability as based on originality. It is a long-standing principle of United
States copyright law that "information" is not copyrightable but "collections" of
information can be. Rural claimed a collection copyright in its directory. The court
clarified that the intent of copyright law was not, as claimed by Rural and some
lower courts, to reward the efforts of persons collecting information, but rather
"to promote the Progress of Science and useful Arts that is, to encourage
creative expression. Since facts are purely copied from the world around us, "the
sine qua non of copyright is originality". However, the standard for creativity is
extremely low. It need not be novel, rather it only needs to possess a "spark" or
"minimal degree" of creativity to be protected by copyright. In regard to
collections of facts, copyright can only apply to the creative aspects of collection:
the creative choice of what data to include or exclude, the order and style in
which the information is presented, etc., but not on the information itself. If Feist
were to take the directory and rearrange them it would destroy the copyright
owned in the data. The court ruled that Rural's directory was nothing more than
an alphabetic list of all subscribers to its service, which it was required to
compile under law, and that no creative expression was involved. The fact that
Rural spent considerable time and money collecting the data was irrelevant to
copyright law, and Rural's copyright claim was dismissed. But in CDN, Inc. v.
Kapes (197F3d 1256, 9th Cir. 1999) - coin collection valuation - the prices CDN
creates are compilations of data that represents its best estimate of the value of
the coin.!
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iii. Related Doctrines!


1. Sweat of the brow - is an intellectual property law doctrine, chiefly related
to copyright law. According to this doctrine, an author gains rights through
simple diligence during the creation of a work, such as a database, or a
directory. Substantial creativity or "originality" is not required. This was
abandoned in Feist v. Rural.!

Copyright !

6. To promote science and useful arts, the constitution authorises congress to give
authors and inventors the exclusive right to their respective writing and discoveries!
a. Incentive - holds the right to exclude, prevent others from reproducing the work,
creating derivative works,, distributing copies of the work to the public, publicly
performing the wok or displaying during the term of the copy right. The owner may
transfer her copyright to others or destroy the copyright by abandoning it. !
b. Copyright law protects the manner in which an idea is expressed not the idea itself.
Thus, concepts, principles, discoveries, facts and other ideas are not covered by
copyright.!
c. To prevail in a copyright infringement action, the plaintiff must prove that:!
i. He owns the copy right!
ii. The defendant actually copied the plaintiffs work!
iii. The ordinary observer would conclude that the defendans work was
substantially similar to the plaintiffs work!
d. Baigent v. Random House Group Limited (2006) EWHC 719 (Ch) !
i. Facts: !
1. UK Case Chancery Division. Michael Baigent and Richard Leigh sued Dan
Brown, Henry Lincoln (co-author that did not file) spent 5 years of research
from 1976 to 1981 and published a book, The Holy Blood and the Holy Grail,
claiming that Jesus has a blood line and there was indeed a holy grail. !
2. Dan Brown published Da Vinci Code, a fiction with the same story line.!
ii. Ruling:!
1. Dan Brown did not infringement the copyright of an earlier nonfiction book,
The holy Blood and the Holy Grail. !
2. The Court of Appeal ruled that Baigent and Leigh had failed to demonstrate
that Brown had copied a substantial part of the material in their original book.
The court therefore ruled in favour of Random House Group Ltd, the
defendants. The Da Vinci Code case made it clear that in English law it is not
enough to have a similar theme to another work, or even to be inspired by it. !
3. For plagiarism to occur, a substantial part of the original work must have
been copied, either in terms of how the work was composed or how its
themes were expressed.!
4. In essence, the case has underlined the well-established rule of thumb that
ideas cannot be copyrighted, only their expressions.!
e. Metro-Goldwyn-Mayer, Inc. vs. American Honda Motors Co.!
1. James Bond has sufficiently unique style to be copyrightable.!
f. Eldread vs Ashcroft!
i. Before, copyright is only for 50 years in the US but it was extended by Congress
when certain characters was about to enter the public domain Sonny Bono
Copyright Term Extension Act. CTEA - the authors lifetime plus 70 years!
g. Infringement!
i. Violation of copyrights!
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ii. Defense is Fair Use!


iii. Allows minor use of a copyrighted work where the use does not materially affect
the rights of the copyright holder.!
h. Harper vs. Nation Enterprises 471 US 539 (1985)!
i. Facts:!
1. Former President Gerald Ford had written a memoir, A Time to Heal
(memoir), including an account of his decision to pardon Richard Nixon. Ford
had licensed his publication rights to Harper & Row, which had contracted for
excerpts of the memoir to be printed in Time. Instead, The Nation magazine
was able to secure a copy of the manuscript and magazine 300 to 400 words
of verbatim quotes from the 500-page book without the permission of Ford,
Harper & Row, or Time magazine. Based on this prior publication, Time
withdrew from the contract, and Harper & Row filed a lawsuit against The
Nation for copyright infringement. The Nation asserted as a defense that
Ford was a public figure, and his reasons for pardoning Nixon were of vital
interest, and that appropriation in such circumstances should qualify as a fair
use. A Federal trial judge ruled in favor of Harper & Row and awarded
damages. The Second Circuit Court of Appeals reversed the ruling, finding
that The Nation's actions in quoting the memoirs were protected by fair use
privilege. Harper & Row appealed this ruling to the Supreme Court.!
ii. Ruling:!
1. The Court, in an opinion by Justice O'Connor noted that the right of first
publication is a particularly strong right, and held that there was no 'public
figure' exception to copyright protection, asserting that "the promise of
copyright would be an empty one if it could be avoided merely by dubbing
the infringement a fair use 'news report' of the book." The court applied the
traditional four factor test to determine if the use was fair, and made the
following findings:!
a. The purpose or character of the use was commercial (to scoop a
competitor), meaning that The Nation's use was not a good faith use of
Fair Use in simply reporting news.!
b. The nature of the copyrighted work was informative.!
c. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole was great -- although the "amount" was
small, it constituted a "substantial" portion of the infringer's work because
the excerpt was the "heart of the work". The Court noted that the infringer
could not defend plagiarism by pointing to how much else they could
have plagiarized, but did not.!
d. The effect of the use on the potential market for the value of the
copyrighted work was also great, because there was an actual harm the
cancelled contract.!
e. Justice Brennan dissented, joined by Justices White and Marshall. They
felt that the importance of "the robust debate of public issues" outweighed
the limited power of copyright ownership.!
i. Selle v. Gibb 741 F2d 896, USCA 7th Circuit!
i. Facts:!
1. In 1975, Ronald Selle, a Chicago antiques dealer and sometime musician,
wrote a song called Let it End. Selle mailed this song to a total of fourteen
music publishers. None of them responded, with all but three returning his
material. In 1978, he heard his neighbor playing the Bee Gees song How
Deep is Your Love. Selle recognized the song as his melody but with
different lyrics. He filed suit in U.S. District Court for the Northern District of
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Illinois, accusing Barry, Robin & Maurice Gibb, their record label distributor
Polygram, and Paramount Pictures of misappropriation and copyright
infringement.!
2. Selle requested a jury trial, which began on February 20, 1983 in the U.S.
District Court for Northern Illinois, the Honorable Judge George N. Leighton
presiding. In opening statements Selles attorney established that Selle's
case was based on the doctrine of striking similarities. The Bee Gees
defense attorney established their case was based on lack of access and the
fact that similarities alone, without proof of access, could not prove copying.
The defense would show that any similarities were coincidental and were
due to the limited note range in popular music and were not the result of
copying.!
ii. Ruling:!
1. It is often written that striking similarities alone can establish access, the
decided cases suggest that this circumstance would be most unusual. The
plaintiff must always present sufficient evidence to support a reasonable
possibility of access because the jury cannot draw an inference of access
based upon speculation and conjecture alone. Justice Cudahy cited
Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2nd 893(8th Cir.), cert.
denied, 329 U.S. 716, 67 S.Ct. 46, 91, L.Ed. 621 (1946). He concluded that,
. . .although proof of striking similarity may permit an inference of access,
the plaintiff must still meet some minimum threshold of proof which
demonstrates that the inference of access is reasonable.!
2. The Court said, Selle did not establish a basis from which the jury could
reasonably infer that the Bee Gees had access to his song and to meet the
burden of proving striking similarity between the two compositions.
Because Selle could not do this, the Court affirmed the district courts ruling
overturning the jury verdict.!
Other Cases: Warner Bros. Entertainment v. RDR Books; ABKCO Music, Inc. v.
Harrisongs Music, Inc.

Patents!

7. Basic:!
a. Promote Science!
b. Utilitarian Mandate - obliged to reveeal how he made the invention so that others
may improve it!
c. US - federal law authorises the issuance of a patent to anyone who invents or
discovers any new and useful process, machine, manufacture or composition of
matter or any new and useful improvement thereof. !
d. Elements!
i. Patentable subject matter - four categories of inventions to qualify for a patent;
any process, machine, manufacture, or composition of matter. Abstract concept,
mathematical algorithms, scientific principles and physical phenomena cannot
be patented.!
ii. Utility - useful invention, benefit to human!
iii. Novelty - new invention; prior arts examination!
iv. Non-obviousness - obvious to persons with ordinary skills!
v. Enablement - description in details to enable a person skilled in the art to which
it pertains to make use of the same.!
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e. Patents Infringement - Too prevail in a patent infringement action, the plaintiff must
show either literal infringement or infringement under the doctrine of equivalents.!
f. Diamond v. Chakrabarty (447 US 303, 1980)!
i. Facts:!
1. Genetic engineer Ananda Mohan Chakrabarty, working for General Electric,
had developed a bacterium (derived from the Pseudomonas genus and now
known as Pseudomonas putida) capable of breaking down crude oil, which
he proposed to use in treating oil spills. General Electric filed a patent
application for the bacterium in the United States listing Chakrabarty as the
inventor, but the application was rejected by a patent examiner, because
under patent law at that time it was generally understood that living things
were not patentable subject matter under Section 101 of Title 35 U.S.C. The
Board of Patent Appeals and Interferences agreed with the original decision;
however, the United States Court of Customs and Patent Appeals overturned
the case in Chakrabarty's favor, writing that "the fact that micro-organisms
are alive is without legal significance for purposes of the patent law." Sidney
A. Diamond, Commissioner of Patents and Trademarks, appealed to the
Supreme Court.!
ii. Ruling:!
1. 35 U.S.C. 101 interpretation - "Whoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title. The Court should not read into the
patent laws limitations and conditions which the legislature has not
expressed. In choosing such expansive terms as "manufacture" and
"composition of matter," modified by the comprehensive "any,"
Congress plainly contemplated that the patent laws would be given
wide scope. Finding that Congress had intended patentable subject matter
to "include anything under the sun that is made by man, respondent's microorganism plainly qualifies as patentable subject matter. His claim is ... to a
nonnaturally occurring manufacture or composition of mattera
product of human ingenuity.!
g. Larami v Amron!
i. Facts: !
1. Larami manufactures super-soaker water-guns. These all use an operated
air pump to pressurize water and a trigger/valve mechanism to control the
ejection of the water. These water-guns also have a removable water-tank.
Defendants Alan Amron and Talk to Me Products claim that Super Soaker
infringes their 129 patent. The 129 patent covers a water gun which
operates by pressurizing water, like the Super-Soaker?. Unlike the SuperSoaker?, the TTMP gun contains electrical features to illuminate the water
stream and make noises. The water tank is not detachable in the 129 patent.!
ii. Rule:!
1. The right to exclude is limited and defined in the language of the patents
claims. Establishing infringement requires interpretation of the claims.
Infringement can be sought two ways:!
a. literally infringement - if the accused product includes every element of at
lease one claim for the patented product.!
b. infringement under the doctrine of equivalents - minor modification is
made; the patent owner must show that the accused product performs
substantially the same overall functions or work in substantially the same
way to obtain the same overall result as claimed in the invention.!
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!
!
!

c. Laramis motion for summary judgment was granted the absence of one
element of the patents claim from the accused product means there can
be no finding of literal infringement. The claim thus does not literally
infringe. Next, because there was not a substantial equivalent of every
limitation or element of the claim (the detachable water reservoir was
such a far improvement from the original design) and thus there was not
infringement by equivalents.!
h. Other cases!
i. Ex Parte Allen - genetically develop oysters is patentable, at present there are
more than 400 animals that have been patented.!
ii. Association of Molecular Pathology vs. Patent and Trademark Office isolated DNA molecule is patentable when it is removed from its native cellular
chromosomal environment and manipulated chemically = created a molecule
that is different from that existing in our body!

Trademarks!

8. Basic: !
a. While copyrights and patent law seek to encourage creative efforts, the goals of
trademark are different. Its goal is to protect consumer form being deceived inter
purchasing shoddy goods and services!
b. Trademark Infringement: To prevail in a trademark infringement action, the plaintiff
must prove: !
i. holding of a valid trademark with priority over the defendants mark!
ii. the defendants mark is likely to cause confussion or deceive consuments!
iii. Or a defendant may be liable for trademark dilution if his conduct blurs or
tarnished the plaintiff.s famous mark.!
9. Cases: !
a. Qualitex Co. vs. Jacobson Products, Inc. (1995)!
i. Facts:!
1. Plaintiff Qualitex Co. had used a green-gold color for the pads which it sold
to dry cleaning firms to use in their dry cleaning presses. Defendant
Jacobson Products Co. was a rival of Qualitex. !
2. Jacobson started selling their own pads to dry cleaners which were a similar
color to those of Qualitex. !
b. Ruling!
i. Justice Breyer, writing for a unanimous court, overturned the Ninth Circuits
decision, holding that the Lanham Act was very broad in its definition of what a
trademark could be. The definition section of the Lanham Act, 15 U.S.C.1127,
defines trademarks as including any word, name, symbol, or device, or any
combination thereof. Breyer reasoned that colors could constitute descriptive
trademarks, because while colors do not automatically evoke a connection to
any product by themselves, they could take on secondary meaning over time, in
the course of use in the marketplace. In this way, a color could serve the chief
purpose of trademarks, that of identifying the source of a particular product.!
ii. Breyer also determined that the functionality doctrine was no bar to the
registration of the plaintiffs color as a trademark. He determined that a product
feature is only functional if it is essential to the purpose of the article or if it
affects the cost or quality of the article. 514 U.S. at 165. The color in this case
acted purely as a symbol, and served no other purpose. Jacobson argued that
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!
!

there are only a limited number of colors that could be used for the products at
issue here, and that many colors are very similar looking, but Breyer dismissed
this concern, saying that if the defendants concerns were proven to be valid, the
functionality doctrine would then come into play. Breyer further held that a color
could be trademarked separately from any trade dress protection.!
c. Mattel, Inc. v MCA Records!
i. Facts: !
1. In December 2000, Mattel sued MCA Records, the recording company of
Aqua, saying the song Barbie Girl in the album Aquarium violated the
Barbie trademark and turned Barbie into a sex object, referring to her as a
"Blonde Bimbo. The song reach the top 40 music charts!
2. They alleged the song had violated their copyrights and trademarks of
Barbie, and that its lyrics had tarnished the reputation of their trademark and
impinged on their marketing plan. Mattel also claimed that the cover
packaging of the single used "Barbie pink", a trademarked color owned by
Mattel. Aqua claimed that Mattel injected their own meanings into the song's
lyrics and MCA Records was not about to let their hit single be suppressed
without a fight. They contested Mattel's claims and countersued for
defamation after Mattel had likened MCA to a bank robber.!
3. The lawsuit filed by Mattel was dismissed by the lower courts, and this
dismissal was upheld, though Mattel took their case up to the Supreme Court
of the United States (Mattel's appeal was later rejected). !
ii. Ruling:!
1. In 2002, Judge Alex Kozinski ruled the song was protected as a parody
under the trademark doctrine of nominative use and the First Amendment to
the United States Constitution. He also threw out the defamation lawsuit that
Aqua's record company filed against Mattel. Kozinski concluded his ruling by
saying, "The parties are advised to chill.!
2. The case was dismissed.!
d. Panavision vs. Toeppen - Dilution protection was used in some U.S. jurisdictions
to attack domain name infringement of trademarks (see Cybersquatting). !
i. Facts: !
1. Facts: !
a. In the 1998 case of Panavision International v. Toeppen, defendant
Dennis Toeppen registered the domain name www.panavision.com, and
posted aerial views of the city of Pana, Illinois on the site. !
2. Ruling: !
a. The Ninth Circuit Court of Appeals found that trademark dilution occurred
when potential customers of Panavision could not find its web site at
panavision.com, and instead were forced to search through other (less
obvious) domain names. !
b. The fact that potential customers might be discouraged from locating
Panavision's legitimate website, coupled with evidence that Toeppen was
in the business of registering domain names for profit, led the court to find
that Toeppen's conduct "diminished the capacity of the Panavision marks
to identify and distinguish Panavision's goods and services on the
Internet", and thus constituted dilution.!

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NUISANCE!

Definition - any act, omission, establishment, business, condition of property or anything


else which injures or endangers the health or safety of others, annoys or offends the
senses, shocks, defies or disregards decency or morality or obstruct or interferes with the
free (Art. 694, NCC). Public Nuisance affects the community or neighborhood. Private
nuisance affects only certain persons in the community. (Art. 695, NCC)!

Rules on Nuisance!
1. Lapse of time cannot legalize any nuisance (Art. 698, NCC)!
2. Present owners or possessory who refuses to abate nuisance started by his
predecessor is liable (Art. 696, NCC)!
3. Abatement of nuisance does not preclude recovery of damages (Art. 697, NCC)!

Remedies against a Nuisance!


- Prosecution (Not available in cases of private nuisance)!
- Civil Action!
- Abatement!
- Private person removes or destroy the thing which constitutes a public nuisance
without committing breach of the peace or doing unecesaary injury. But if
necessary:!
- Demand to abate!
- Demand is rejected!
- Abatement approved by health with assistance of the police!
- value does not exceed three thousand pesos!

!
Maybe liable for damages if there are unnecessary injuries!
!
!

LAND USE REGULATIONS!


Basic Principles In Land Use!

1. Early 1900s - with New York adopting a comprehensive zoning ordinance in 1916!
2. 1920s - U.S. Department of Commerces dratted a standardised zoning law (Standard
State Zoning Act, Model Law)!
a. Empowered local governments to adopt zoning ordinances.!
b. Specified key provisions for an effective ordinance.!
c. Resulted in the passage of zoning ordinances in the US!
3. Legal Challenges to Zoning !
a. Constitutionality!
i. Interference with the traditional private property rights regime !
ii. Freedom to use land exception only is nuisance and easements!
iii. Village of Euclid vs. Amber Realty, 272 US 365 (1926)!
1. Village of Euclid (Muncipal Corporation) in Ohio!
2. 1922 adopted an ordinance establishing a comprehensive zoning plan
regulating the location of trades, industries, apartment house, etc.!
3. Amber Realty Co. owner of 68 acres of land is portions of which are zoned
as for sue as two family dwellings, apartment houses, hotels, etc. and for
industrial and manufacturing operations.!
4. Ordinance is assailed by Amber Realty on the ground that it violates the 14th
Amendment. !
a. Private property should not be taken without just compensation!
b. Ordinance attempts to restrict the control and lawful uses of Ambers land
so as to confiscate and destroy part of its value.!
5. US SC Ruling!
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a. The meaning of constitutional guarantees never varies but the scope of


its application must expand or contract to meet new and different
conditions; changing world.!
b. Justification is police power;!
c. The ordinance passes the bounds of reason and not a merely arbitrary
fiat; the ordinance has substantial relation to public health, safety, morals
and general welfare!
iv. As Applied - the zoning did not in fact promote the public health, safety and
welfare; zoning maybe unconstitutional as applied to certain individual property no practical use is left of the land after zoning. !

4. Non-Conforming Uses - existing use of the property does not conform to the land use
as passed.!
a. Any attack on existing property might be unconstitutional and in violation of the 5th
amendment!
b. Restrictions - no expansion, limitations to repairs that will prolong the nonconforming use of the land!
c. Termination!
i. Improvements are destroyed!
ii. Use is discontinued or abandoned!
iii. Use is a nuisance!
iv. Eminent Domain!
d. AVR, Inc. v. City of St. Louis Park, 256 US 1114 (1999)!
i. Facts!
1. 1954 - a plant operates a ready mix concrete plain in the City of St. Louis
Park!
2. 1959 - city passed an ordinance permitting ready mix plants in the area of
the city zoned for industrial use but only (through a special use permit), the
plant was classified as non-conforming because it is within the residential
district.!
3. 1973 - zoning eliminated ready mix and concrete block plants as permitted
uses !
4. 1974 AVR purchased the plant.!
5. 1980 city adopted a new comprehensive land use and notified AVR, AVR
fiies a case to invalidate the 1973 zoning!
6. 1st case filed in lower court (1980)- declared ordinance void; concrete plant
not nuisance per se; City could not legislate it out of existence!
7. 1990 City adopted new plan, site are to be used for high density residential
use!
a. amortization provisions!
b. AVR was given 2 years, thereafter non-conforming use shall terminate
and cease to operate!
8. AVR files another case!
ii. Issues!
1. Violation of due process - remaining useful life failed to be considred/
reasonableness test!
2. Violation of equal protection clause!
3. Violation of vested rights by eliminating ready-mix plant as a special or
permitted use!
4. Constitutes taking of AVR property!
iii. Ruling!
1. Summary judgement in favor of the City; AVR Appealed!
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2. SC sustained the lower court, affirms the correctness of the amortization


package of the City!
3. AVR relied on Trisko ruling - a decision to deny a conditional use permit
should be base on something more concrete than a neighbourhood
opposition and expression of concern for public safety; NOT APPLICABLE in
this case; !
e. Amortization - used to eliminate uses that are viewed as particularly objectionable,
i.e. billboards, junkyards; State legislature may ban amortization, i.e. Minessota
which provides that a municipality may not enact, amend or enforce an ordinance
proving for the elimination of a use by amortization which use was lawful at the time
of the inception.!

5. Zoning Amendments !
a. Ways for an owner to escape a zoning ordinance!
i. Amendment!
ii. Variance!
iii. Special exception!
b. Amendments!
i. Re-zoning; presents dangers since it threatens the goal of comprehensive land
use plan.!
1. A rezoning ordinance is valid unless it is clearly arbitrary and unreasonable,
and have no substantial relation to public health, safety, morals and general
welfare.!
ii. Change or mistake approach - conditions have change or mistake in the original
zoning!
iii. Smith vs. City of Little Rock, 648 !

c. Variance!
i. Granted by the zoning board!
ii. These are variance of use from the ordinance as will not be contrary to the
public interest, where, owning to special conditions, a literal enforcement of the
provisions of the ordinance will result in unnecessary hardship and so that the
spirit of the ordinance shall be observed and substantial justice done.!
iii. Conditions!
1. Unique physical circumstances, i.e. exceptional topography!
2. No possibility of development in strict conformity with the provisions of the
zoning ordinance!
3. Not created by the applicant!
4. Will not alter the essential character of the neighbourhood!
5. Use represents minimum variance !
iv. Types of Variance!
1. Area variance - modification area, size, frontage (physical features)!
2. Use variance - type of use that is otherwise prohibited !
v. Detwiler v. Zoning Hearing Board of Lower Salford Township, 596 A. 2d
1156, (1991)!
d. Special exceptions !
i. Authorized by an ordinance (spot zoning)!
ii. Use is consistent with the general public welfare; !
iii. More intensive review; inconsistent with!
6. Future of Land Use Regulations!
a. Aesthetic Regulation can be permitted!
i. Stoyanoff v. Berkeley, Supreme Court of Missouri (458 S.W.2d 305, 1970)!
Page 11 of 15

1. Facts:!
a. Refusal to issue residential building permit!
b. House to be built is of an ultra modern design while most of the other
houses are French Provincial or Colonial English houses!
c. Rejected by the Architectural Board!
i. determines certain minimum architectural standards of appearance
and conformity with the surrounding structure!
ii. unsightly grotesque and unsuitable structure detrimental to the
stability of values and welfare of the surrounding property!
d. The petition argues that the ordinance creating the Architectural Board is
invalid, illegal and void!
e. Excess of powers granted to the City of Ladue; unconstitutional and
arbitrary exercise of police power!
2. Court ruled in favor of the City!
a. If by the term aesthetic consideration is meant a regard merely for the
outward appearances, for good taste in the matter of the betty of the
neighbourhood itself, we do not observe any substantial reason for saint
that such a consideration is not a matter of general welfare. The beauty of
a fashionable residence neighbourhood in a city is for the comfort and
happiness of the residents, and it sustains a general away the value of
the property in the neighbourhood.!
b. Ordinance are sufficient in the general standards for a factual
determination of the suitability of any proposed structure with reference to
the character of the surrounding neighbourhood!
3. City of Ladue vs. Gilleo, 512 US 43 (1994)!
a. Facts!
i. City prohibits homeowners from displaying signs on there property
except residence identification signs, etc.!
ii. Violates right to speech.!
b. Ruling:!
i. Court strike down the ordinance saying that the prohibiting the display
of signs in ones residence is a constrain to the persons ability to
speak there. !
ii. Residential signs are an unusual cheap and convenient form of
communication. Identify of the speaker, the homeowner is important in
the messaging.!
b. Family Zoning!
i. Concept of single family residence!
ii. Can the State legislate who lives in your house?!
iii. Moore vs. City of East Cleveland, 431 US 494 (1977)!
1. Facts!
a. Inez Moore lives in East Cleveland with a grandson, John Moore, Jr.!
b. City notified her that John is an Illegal occupant!
c. She refuse, City files a criminal charge!
2. Ruling!
a. The ordinance does is does not bore a rational relations to the
permissible state objectives - overcrowding!
b. Intrusive regulation of family living arrangements!
c. Growth Control and Exclusion !
i. Growth Control - restriction of housing units available!
ii. Exclusionary zoning - effect is to exclude minority or low-income groups from a
community.!
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!
7.
!

!
!
!

iii. Associated Home Builders of the Greater Eastbay, Inc. vs. City of
Livermore, 557 P.2d 473 (1976)!
1. Facts!
a. ordinance enacted that prohibits the issuance of residential building
permits until facilities complies with the standards!
b. Association files a suit to enjoin the ordinance!
2. Ruling!
a. Affirm using Euclid doctrine - the ordinance have a rap and substantial
interest to public welfare; balancing of interest was use!
b. Dissent - intention is to keep new comers out of the city; immoral and
illegal; City of Livermore wants to build a Chinese wall!
Laws pertaining to Land Use in the Philippines:!
a. Batas Pambansa Blg. 220 - Authorises the ministry of human settlements to
establish and promulgate different levels of standards and technical requirements
for economic and socialized housing projects in urban and rural areas from those
provided under Presidential Decrees No. 957, 1216, 1067 and 1185.!
b. Presidential Decree No. 957 - regulates the sale of subdivision lots and
condominiums.!
c. Presidential Decree No. 1216 - defining "open space" in residential subdivisions
and amended section 31 of Presidential Decree No. 957 requiring subdivision
owners to provide roads, alleys, sidewalks and reserve open space for parks or
recreational use)!
d. Republic Act No. 7160 - mandated the LGU to prepare and implement a
comprehensive land use plan (CLUP) and shall approve subdivision plans.!
i. Executive Order No. 71 - implemented the provision of RA No. 7160 on the
LGUs
mandate to approve subdivision plans, to cities and municipalities
pursuant to R.A. No. 7160 (LGC).!
ii. Executive Order No. 72 - implemented the provision of the LGC for the
preparation and implementation of the comprehensive Land Use Plans.
HLURBs role on standards. !
e. Republic Act No. 7279 - Urban Development and Housing Act provided a
comprehesive and continuing urban development and housing program, establish
the mechanism for its implementation.!
f. Proposed Land Use Act - 20 years of deliberation in Congress!
ENVIRONMENTAL LAW!

1. Relation to Property!
a. Many environmental law affects how property can be use.!
b. EL developed only in the 1960s!
c. Created a comprehensive legislation that sometimes intersects with laws governing
property.!
2. Property and Ecology!
a. Ecological view of property - land is not a passive entity waining to be
transformed by its land owner. Land is already at work, performing important
services in its unaltered state. Some ecological functions have been recognized and
protected by law. Viewing land through the lens of natures economy reduces the
significance of property lines. (Joseph L. Sax, Property Rights and the Economy of
Nature, 45 Stan. L. Review. 1433, (1993)!
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i. Utilitarian theory - land is solely the owners property to develop as the owner
please?!
ii. Green theory - ecological ethic emphasises the moral duty of humanity to act
as a steward of natural life (J. Peter Bryne, Green Property, 7 Const. Comment.
239, 243 (1990)!
iii. Public Trust Doctrine - lands are deemed to be owned in trust by the sovereign
for the benefit of the public!
iv. Bundle of rights - title does not include the right to violate the public trust. !
v. Hazardous waste - disposition of waste in the cheapest possible manner, with
little regard for human health and safety. US Law - Comprehensive
Environmental Response Compensation and Liability Act of 1980 - response to
Love Canals1!
b. Just vs. Marinette County, 201 N.W.2d 761 (1972)!
i. Facts:!
1. Just owns a marsh land/swamp!
2. 1967 County re-zoned it as conservancy district where few use is permitted
such as harvesting wild crops, hunting and fishing.!
3. Just violated the ordinance by filing materials without a permit!
ii. Ruling!
1. Re-examination of public benefit vs. public harm and the scope of an owners
right to use of his property.!
2. The shore land zoning ordinance prevents to some extent the changing of
the natural character of the land.!
3. The state of Winconsin under the trust doctrine has the duty to eradicate
the present pollution and to prevent further pollution in its navigable waters. !
iii. United States vs. Monsanto, 858, F.2d 160 (1988)!
1. Facts !
a. Generator (Monsanto) 1976-1980 reckless deposit of more than 7,000 55
gallon drums of chemical waste on a 4 acre land!
b. Rainwater and co-mingling of chemical resulted to a toxic cloud/fire!
c. US files action against the generators and the site owner Harvey
Hutchinson!
d. Generators claims that it is not their waste!
e. Site-Owners contended that they were innocent absentee landlord
unaware of and unconnected to the waste disposal activities on their
land.!
2. Ruling!

Love Canal was a neighborhood in Niagara Falls, New York, located in the LaSalle section of the city. It
officially covers 36 square blocks in the far southeastern corner of the city, along 99th Street and Read
Avenue. Two bodies of water define the northern and southern boundaries of the neighborhood: Bergholtz
Creek to the north and the Niagara River one-quarter mile (400 m) to the south. In the mid-1970s Love Canal
became the subject of national and international attention after it was revealed in the press that the site had
formerly been used to bury 21,000 tons of toxic waste by Hooker Chemical (now Occidental Petroleum
Corporation).!
Hooker Chemical sold the site to the Niagara Falls School Board in 1953 for $1, with a deed explicitly
detailing the presence of the waste,[1] and including a liability limitation clause about the contamination. The
construction efforts of housing development, combined with particularly heavy rainstorms, released the
chemical waste, leading to a public health emergency and an urban planning scandal. Hooker Chemical was
found to be negligent in their disposal of waste, though not reckless in the sale of the land, in what became a
test case for liability clauses. The dumpsite was discovered and investigated by the local newspaper, the
Niagara Falls Gazette, from 1976 through the evacuation in 1978. Potential health problems were first raised
by reporter Michael H. Brown in July 1978.

Page 14 of 15

a. Undisputed that the generators shipped the hazardous substances to the


bluff road facility. The waste was found in the property. There has been
released of the waste at the site.!
b. Law is plainly worded, degree of participation of the land owner is not
material. It is sufficient that they owned the property.!
iv. Babbit v. Sweet Home Chapter of Communities for Greater Oregon 515 US
687 (1995)!
1. Facts:!
a. Endangered Species Act of 1973 makes it unlawful for any person to take
any endangered species; it includes significant habitat modification or
degradation where it actually kills or injures wildlife.!
b. Small landowners, logging companies and families dependent on the
forest contends that the harm regulation to the red-cockered
woodpecker injured them economically. !
2. Ruling:!
a. Harm includes indirect not only direct application of force!
b. Extends protection against activities that cause the harm that the law
wants to avoid!
c. Permitting - allows taking if it is incidental to lawful activity; requires the
preparation of conservation plan to minimise and mitigate impact of the
activity.!
v. American Electric Power Co. Inc. v. Connecticut, 131 S. Ct. 2527 (2011)!
1. Facts:!
i. Can the States/NY plus, can maintain a claim for public nuissance
against carbon-dioxide emitters (power companies)!

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