Wednesday, November 30, 2011
This book is a fantastic resource for anyone who has to take or give a law school exam: Open Book: Succeeding on Exams from the First Day of Law School, by Barry Friedman (NYU) and John Goldberg (Harvard). This book isn't land-use specific, but should be of general interest to all law students and teachers. I would say that practitioners will find it quite valuable, because one of the central points of the authors is that law school exams are (despite popular belief) highly relevant to what lawyers actually do in practice: issue-spotting, identifying the appropriate rule, and applying it to the facts to reach a conclusion. The blurb:
Wolters Kluwer Law and Business is known for its essential guides for law school success. Now Open Book: Succeeding on Exams from the First Day of Law School offers today’s law students more than simple exam preparation. The authors, both award-winning teachers with a wealth of classroom experience, reveal what professors really look for in exam answers. By linking exam-taking to the actual practice of law, they explain what it means to “think like a lawyer” in an exam setting, and how to get the most out of classes. Open Book also showcases a distinctive central pedagogy, “the pinball method of exam-taking,” and provides detailed examples and a wealth of concrete exam-taking techniques. Initial reviewers―including professors teaching core 1L classes, writing instructors and law school administrators―have been unanimous and enthusiastic in their praise. Numerous student reviewers have likewise remarked that it changed their study habits and their entire outlook on law school. With straightforward prose, memorable, and often humorous illustrations, and a unique insider’s perspective, Open Book: Succeeding on Exams from the First Day of Law School opens a clear path to law school success.
I'm proud to be part of the "Open Book Team" of professors who have contributed materials to the accompanying website. The other two property professors are Jim Smith and Eduardo Penalver, so I'm very honored to be in such august company. I was flattered to be asked to contribute by the authors, Profs. Friedman and Goldberg, who were both extremely popular law professors at Vanderbilt when I was a student there. But more than that, when I read the manuscript, I felt like it encapsulated so many of the thoughts that I've had about law school exams as a student, as a practitioner, and as a relatively junior professor. I really do think that it's a fantastic resource for both students and teachers for thinking about law school exams and how they relate to legal practice.
I'm guest-bloggging this week at the Open Book Blog. My first post is about my conviction that A Law School Exam is a Legal Writing Event. The more time I spend in this profession, the more convinced I am that good communication through writing is the coin of the realm. This is also related to the thinking behind my recent paper on Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course.
I sincerely think that this book does a great deal of work towards explaining why law school is relevant to practice, and why all lawyers need to be proficient written communicators--and this especially applies to land use lawyers, because of the individualized, multidisciplinary, and practical nature of our field.
So, today I waded into the local controversy about the possibility of a Wal-Mart in downtown Athens with an editorial in the local weekly. [Note - this article is no longer available on the original site, so this link is to a re-posted version.] Specifically, I responded to media reports that the county attorney has said the developers have vested rights to develop the property based on the amount of money they claim to have spent on site preparation. Now, Georgia has a pretty generous vested rights doctrine, but it's not that generous. As in most states, you still have to have some kind of official assurance for rights to vest. Apparently now the county attorney doesn't want to talk about it, but other folks on both sides of the issue certainly have been.
This type of controversy is not unique to Athens, apparently. A casual perusal of media reports turns up vested rights controversies over proposed Wal-Marts in Hood River, Oregon, Leon County, Florida, San Antonio, Texas, and Abingdon, Virginia. Is this some kind of trend?
Jamie Baker Roskie
Tuesday, November 29, 2011
They NYU Furman Center has released its Third Quarter New York City Housing Report:
We are pleased to share with you our latest New York City Quarterly Housing Update (Q3 2011). We find that home sales volume remained low in the third quarter of 2011, with the number of properties sold citywide four percent lower than the number sold in the third quarter of 2010.
The report finds that property values are also lagging in most of the city. Manhattan is the only borough where properties have appreciated in price over the last year. Foreclosures have continued to slow citywide, with 32 percent fewer foreclosure notices issued in the third quarter of 2011 compared to the same quarter last year. You can read the full report here, or the press release here.
Monday, November 28, 2011
My former colleague, Audrey McFarlane (Baltimore), has posted The Properties of Instability: Markets, Predation, Racialized Geography, and Property Law, 2011 Wisc. L. Rev. 855 (2011). Here's the abstract:
A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability, albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of land owned by members of racial minorities, particularly Black Americans. The subprime mortgage crisis, the most current manifestation of this involuntary land loss, can be attributed to property doctrine’s policy embrace of markets and importation of contract principles such as the “freedom of contract.” This embrace of markets and contracts ignores the reality that real estate markets are racially segregated, and due to the nature of those disparate markets, easily exploitable. The current racially concentrated subprime mortgage crisis has torn the stable property image apart by revealing longstanding truths: that fraud, exploitation, and desperation are not anomalous. These truths present a disquieting reality: that the persistent and enduring experience for minorities is instability. They also present an overlooked insight that there is a dark side of property ownership: that fraud, exploitation, and desperation are the bad that enables the good of property markets. Because this “bad” is both ubiquitous and geographically situated, it suggests that stability for some within the system of property ownership is provided at the expense of instability for others. This Article argues that we should begin to pay attention to an under-theorized stick in the bundle of property rights: “the right to keep.”
DRIVE through any number of outer-ring suburbs in America, and you’ll see boarded-up and vacant strip malls, surrounded by vast seas of empty parking spaces. These forlorn monuments to the real estate crash are not going to come back to life, even when the economy recovers. And that’s because the demand for the housing that once supported commercial activity in many exurbs isn’t coming back, either.
The better news:
Simply put, there has been a profound structural shift — a reversal of what took place in the 1950s, when drivable suburbs boomed and flourished as center cities emptied and withered.
The shift is durable and lasting because of a major demographic event: the convergence of the two largest generations in American history, the baby boomers (born between 1946 and 1964) and the millennials (born between 1979 and 1996), which today represent half of the total population.
Many boomers are now empty nesters and approaching retirement. Generally this means that they will downsize their housing in the near future. Boomers want to live in a walkable urban downtown, a suburban town center or a small town, according to a recent survey by the National Association of Realtors.
The millennials are just now beginning to emerge from the nest — at least those who can afford to live on their own. This coming-of-age cohort also favors urban downtowns and suburban town centers — for lifestyle reasons and the convenience of not having to own cars.
Lee Anne Fennell (Chicago) has posted Ostrom's Law: Property Rights in the Commons, in the International Journal of the Commons, Vol. 5, No. 1, p. 9 (2011). The abstract:
In this symposium essay, I trace some of the ways that Elinor Ostrom’s focus on situated examples has advanced interdisciplinary dialogue about property as a legal institution and as a human invention for solving practical problems. Although the richness of these contributions cannot be distilled into a single thesis, their flavor can be captured in a maxim I call Ostrom’s Law: A resource arrangement that works in practice can work in theory. I begin by highlighting the attention to detail that characterizes Ostrom’s methodology. I then examine how Ostrom’s scholarship yields insights for, and employs insights from, property theory. Next, I consider the question of scale, an important focal point of Ostrom’s work, and one that carries profound implications for law. I conclude with some observations about interdisciplinarity as it relates to research on the commons.
Friday, November 25, 2011
I hope all of our U.S. readers had a Happy Thanksgiving yesterday. As we've suggested before, Thanksgiving is in many senses the original American land use holiday, and itself derives from even more longstanding traditions of honoring the relationship between people, communities, and the land. Over the years since it became an official U.S. holiday, we still have the element of celebrating the harvest, but I would say it's evolved more into an event that revolves around that other significant land use element: the home.
If you're heading out shopping for the big sales today on "Black Friday" (the day many retailers go "in the black" financially), many of you might be confronted with some other aspects of modern American land use: sprawl, traffic, and the architecture of modern suburban development. Growing up, we spent Thanksgiving visiting relatives in the older, traditional New Jersey town in which my parents grew up, but which was adjacent to newer suburban development. Perhaps this weekend, you're experiencing what I often did: on Thursday, dinner at a relative's home in the older traditional neighborhood; then Friday, out to the suburban shopping malls and big-box parking lots. Looking back, I think I was subconsciously aware that there was a big difference. It just occurred to me that because of these two major activities--traditional family dinner, then shop-til-you-drop--the Thanksgiving holiday weekend might be about the sharpest contrast that many people experience with such different land use models.
I wonder how this sort of experience affects people--how it might impact the emotions that many people feel during the holidays when visiting relatives, and perhaps old homes since moved away from, or a walk around the old downtown; thinking about the old days, and talking about how their communities have changed. I wonder if a holiday spent experiencing the stark visual and spatial contrasts between the traditional neighborhood and suburban sprawl heightens these emotions. While much of the holiday experience centers around spending time with people, surely the visual and geographical elements of time and place certainly play a big role for many, even if not explicitly acknowledged. Ideas, memories, and feelings about the places in which we live and have lived must have an effect on the way people think about, and during, the holidays.
I hope that yours were and are mostly pleasant ones. We're thankful for the opportunity to blog here, and for everyone who reads and contributes in this land use blog community.
Wednesday, November 23, 2011
Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law. The abstract:
Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.
Timely and important.
Larrisa Katz (Queens U.) has posted The Regulative Function of Property Rights, 8 ECON J. Watch 236 (2011). By looking at analogous regulatory responses to private ownership, this brief essay provides a concise and unique comparison of the dominant models of property rights ("bundle of sticks" and exclusion a/k/a "stick") with her own model based on the owner's entitlement to set the agenda for a resource. Here's the abstract:
In this paper, I examine three different models of how we manage our common resources through a system of private property rights. One model (the exclusion approach) is to control owners’ decisions indirectly, through markets. Another model (the bundle-of-rights approach) is to regulate owners’ decisions directly, by setting out specifically what they can or cannot do. These first two models have in common their focus on the substantive decisions that owners make. There is a third approach that emerges from my own account of ownership as a position of exclusive agenda-setting authority. A distinguishing feature of this model is that it restricts the class of question that the owner may consider when dealing with the thing rather than the substantive answers that owners come up with.
Monday, November 21, 2011
Sheila Foster (Fordham) and Daniel Bonilla have posted The Social Function of Property: A Comparative Law Perspective, 80 Fordham L. Rev. 101 (2011). Here's the abstract:
The classical liberal conception of property dominates the modern legal and political imagination. The idea that property is a subjective and nearly absolute right controls the way in which much of modern law and politics understand this institution. Despite its ubiquity in the modern legal and political consciousness, the classical liberal conception of property competes with, and is challenged by, other forms of imagining the institution. One of these alternative concepts, and perhaps one of the most suggestive and influential of the twentieth century, is the social function of property. This concept was articulated paradigmatically by the French jurist León Duguit in a set of six lectures given in Buenos Aires in 1911. According to this view, property has internal limits—not just external ones as in the case of the liberal right to property.
The concept of the social function of property has been incorporated by a significant number of European and Latin American legal systems and been instrumental in the political struggle that has occurred in some countries to achieve a fairer distribution of land. In Latin America, for example, the social function of property was included in several constitutions and has been instrumental in justifying the agrarian and urban reform projects developed in several countries in the region. In the United States, while no legal norm includes explicitly the words “social function of property,” some U.S. legal scholars consider that a “social obligation” norm does exist in U.S. law, albeit perhaps only at the margins of property jurisprudence. According to this norm, property owners have social responsibilities to others that extend beyond the highly individualized, and atomized, conventional account of property rights.
This essay is an introduction to a symposium held at Fordham School of Law in which an impressive group of scholars from the United States and Latin America convened to examine the contemporary interpretations and use of the social function of property in Latin America and its exclusion or marginal inclusion in the U.S. The symposium papers highlight and examine the interpretations of the social function of property articulated during the last two decades by some Latin American constitutional courts, as well as the symbolic and material effects that these readings have had in the region. As many of the papers published in this issue demonstrate, the social function of property has had interesting conceptual histories and applications in Latin America. The papers also scrutinize and analyze the concepts and institutions through which the social function of property has entered the U.S. legal system and explore why these concepts and institutions have had such a limited influence. Finally, the papers identify the tensions and connections that the social function of property has with relatively new legal concepts like the ecological function of property, and to explore its connections with various historical discourses and social structures in the U.S. and Latin America.
Saturday, November 19, 2011
In a recent post on the Atlantic Cities blog, Roberta Gratz suggests ("argues" would probably be too strong) that the planning community has long been a boys' club that eschewed the contributions of women, principally citing the way in which planners and planning thinkers dismissed Jane Jacobs as a mere "housewife." Gratz also notes Jacobs' belief that women tend to approach planning from a different perspective than men do, a perspective that is sorely needed in planning circles. And what perspective is that, you ask? (Warning: Gender stereotyping ahead) Men like to bulldoze things and replace them with big shiny objects like stadiums and skyscrapers, while women focus on cultivating the home, family, and community.
I am not going to opine here on the merits or demerits of gender essentializing (but feel free to have at it in the comments!) I do wonder, however, whether it is fair to criticize people for pigeonholing Jacobs as a "housewife" when she herself plainly drew upon the virtues of housewifery in claiming that women had a unique perspective on planning. It may be that Jacobs was cleverly attempting to appropriate a frequent criticism used against her and turn it to her advantage. But her remarks may also have had some unintended consequences. Intriguingly, Jacobs's rhetoric echoes one side of the early twentieth century debate over women's suffrage. While radical suffragists saw the movement as a challenge to the patriarchial social culture that placed men and women in "separate spheres" (home/women vs. work/men), a more pragmatic wing of the suffrage movement argued that, in fact, women's suffrage was consistent with the separate spheres ideology because government itself was nothing more than "enlarged housekeeping" for which women were peculiarly suited. It was only once this latter wing became prominent that women's suffrage really gained any traction.
Of note for the land use prof here, the idea of government as a form of "enlarged housekeeping," reinforced by the suffrage movement, contributed to the adoption of Euclidean single-use zoning in which home was rigidly separated from work (thus entrenching women's role as housewives), as well as the NIMBY ideology that local government's primary function is the protection of the single-family home against invasion. (Oh, I almost forgot, I have written about this issue before, where I argued that women's suffrage, the emancipation of organized labor, and the empowerment of the suburb through the zoning power were all related movements).
So, by embracing the idea of fixed gender roles, Jacobs may have unwittingly abetted an ideology that facilitated suburban sprawl, gender inequality, and NIMBYism. In fact, she has been accused of being the progenitor of the NIMBY movement.
Friday, November 18, 2011
From the Sustainable Communities folks at EPA:
New Partnership for Sustainable Communities Report:
Supporting Sustainable Rural Communities
The HUD-DOT-EPA Partnership for Sustainable Communities and the USDA has
just released Supporting Sustainable Rural Communities, a report that
discusses how the four agencies are collaborating to support rural
communities. This publication highlights how small towns and rural
places across the country are using federal resources to strengthen
their economies, provide better quality of life to residents, and build
on local assets such as traditional main streets, agricultural lands,
and natural resources.
The report includes sections on how HUD, DOT, EPA, and USDA programs
support environmentally and economically sustainable growth in rural
places; performance measures rural communities can use to target their
investments; and 12 case studies of rural communities using federal
resources to achieve their development and economic goals. It also
outlines steps the Partnership for Sustainable Communities is pursuing
to support small towns and rural places.
To read the report, please visit this website.
Jamie Baker Roskie
Thursday, November 17, 2011
UGA Land Use Clinic alumnae Sarah Schinder (now Professor Schindler, Maine) must still follow Athens news pretty closely, because she is the first to alert me of a controversial new plan for Wal-Mart to anchor a big new mixed-use development in downtown Athens. From our local paper:
An Atlanta developer is planning a major retail and residential development on the fringe of downtown Athens, two Athens-Clarke officials said Wednesday.
Selig Enterprises is planning to build 200,000 square feet of commercial space between East Broad and Oconee streets, “including a 90,000- to 95,000-square-foot big-box, most likely to be a Walmart,” Commissioner Kelly Girtz said.
Actually, rumors of this plan have been floating around for awhile. Some folks are frustrated because this development supplants a more ambitious and community-driven plan to create a river district. The development will also displace local coffee favorite Jittery Joe's Roasting Company, but will mostly be placed on a vacant parcel once occupied by a building supply company. It may also bring a grocery store to downtown Athens, which some residents would welcome. The site is only blocks from where Occupy Athens is currently camped - I wonder if we'll see any cross-protesting?
Jamie Baker Roskie
Wednesday, November 16, 2011
Frank Alexander (Emory) and Leslie Powell have posted Neighborhood Stabilization Strategies for Vacant and Abandoned Properties, 34-8 Zoning and Planning Law Report 1 (2011). Here's the abstract:
Vacant and abandoned properties are a growing inventory in many American neighborhoods as a result of unusually high foreclosure numbers, population loss, and property value declines. The impact of vacant and abandoned properties is tangible and requires a willingness by local governments to acknowledge and address the problem. This article outlines the problems caused by vacant and abandoned properties and suggests a variety of potential strategies, from property tax foreclosure reform to land banking.
Frank has co-founded along with Dan Kildee the Center for Community Progress (f/k/a The National Vacant Properties Campaign). His scholarly and consulting work with affordable housing, title-clearing and land bank present a model of engaged scholarship that should inspire all law teachers as Frank himself does for those who have the pleasure to meet him.
From Patricia Salkin, an opportunity to contribute to the Zoning and Planning Law Report:
Looking for manuscripts: Patricia Salkin is looking for manuscripts for the 2012 Zoning and Planning Law Report. This is a monthly practitioner-oriented newsletter published by Thomson-Reuters. Each issue features a substantive article on a land use law topic of interest to zoning and land use lawyers. Manuscripts should be 18-20 double spaced pages, national in scope and offer practical perspectives/advice to practitioners. This is a great opportunity to retool a law review article for a different audience or to use a piece for this publication as a building block to a future law review article. If you are interested in submitting a manscript or vetting an idea, please contact Salkin at email@example.com
As she notes, it's a great opportunity to take an academic article and rework it into a more accessible piece to reach a broader audience.
Tuesday, November 15, 2011
Patricia Salkin sends the following announcement that should be of interest to anyone who has published in the field this year:
Albany Law School Associate Dean Patricia Salkin is once again preparing for the annual Zoning and Planning Law Handbook. This publication highlights 18 law review articles published in 2011 that would be of significant interest to land use practitioners. The bibliography she has put together of articles lists about 140 publications so far. If you would like to have one or more of your articles considered for publication, please send the article name and citation to Patty Salkin at firstname.lastname@example.org to make sure it is included in the bibliography and considered for publication.
Land use is an especially great field because of the interaction and synergy between the academics and the professionals--the Handbook is a terrific opportunity to publish to a wider audience.
Monday, November 14, 2011
Nestor M. Davidson (Fordham) has posted Property's Morale, 110 Michigan Law Review 437 (2011). The abstract:
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs.
Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join a community, and make other decisions at property’s core. More precisely, demoralization is predicated on a kind of paralysis flowing from anxieties about instability, unfair singling out, and majoritarian expropriation that can be sparked in legal transitions.
This prevailing psychological portrait of expectations has considerable intuitive appeal and is widely influential. It is, however, distinctly incomplete. This Article offers an alternative picture of the expectations with which people approach property and the corresponding anxieties that might cause people to hesitate. From this perspective, stability is less important than assurances that the legal system will respond when external forces threaten to overwhelm the value owners create, that it will provide a fair process of adjustment over time, and that it will ensure inclusion.
In short, property law can offer morale benefits that are every bit as critical as demoralization costs. Property theory and doctrine often juxtapose ex ante certainty against ex post flexibility; however, a morale lens underscores that legal transitions can signal responsiveness as easily as instability. Doctrinally, this understanding recalibrates property law’s approach to expectation. Normatively, property’s largely ignored, but absolutely vital, morale function provides a framework for understanding how the legal system can buoy confidence in greater balance, fostering all of the work with which property is so rightly associated.
Daniel I. Halperin (Harvard) has posted Incentives for Conservation Easements: The Charitable Deduction or a Better Way, Law & Contemporary Problems, Vol. 74, p. 29, Fall 2011. The abstract:
Therefore, to give greater assurance that the public benefit of the gift will be consistent with the claimed deduction, the donee should be required to certify that it has selected the easement consistent with its mission and it has both the resources to manage and enforce the restriction and a commitment to do so. Moreover, it is inappropriate to measure the charitable deduction by the supposed loss in value to the donor from the imposition of the easement. The focus should be on actual benefit to charity. Therefore, eligibility for a charitable deduction for a conservation easement should be contingent on certification – by a public agency or, possibly, an IRS-accredited land trust – that the public benefit from the contribution is equivalent to the claimed deduction.
In fact, the recent changes to various tax-expenditure programs – placing caps on the expenditures and requiring the participation of expert agencies – indicates that Congress is less enamored than it once was with open-ended tax expenditures administered solely by the Treasury Department. This suggests a cap on tax credits for the contribution of conservation easements. Even if the program is open-ended, Congress should mandate participation of an expert agency such as the Bureau of Land Management, which is more capable of evaluating the public value of an easement.
This article from the L.A. Times discusses recent changes to California's stringent environmental review statute (CEQA) that permit the governor to "fast-track" certain development projects through the review process. The merits of CEQA are certainly subject to debate, with business and development groups claiming the law is a job-killer and environmental groups crediting it with preserving important natural resources. I have not read enough to opine on the merits of CEQA, but if there's one thing I do know it's that giving elected officials discretionary authority to decide what gets fast-tracked and what does not is a recipe for trouble. As the article notes ominously, there are already complaints that only politically-connected parties are qualifying for special treatment.
Stewart Sterk (Cardozo) and Kimberly Brunelle have posted Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases, 63 Fla. L. Rev 1139 (2011). Here's the abstract:
Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.
The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision.
Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute.
If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints.
In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate.
This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues.