Wednesday, January 11, 2012

How Much Land Use in the Property Course?

Happy New Year everyone!  Now that the spring semester has begun, I know many of you are thinking: "how long until my summer break?"  Or, if not that, "how much land use should I cover in the 1L Property course?"  Since land use is my area of specialty and Property is a 6 credit course at Chapman, the answer for me is a lot.  But how much should you teach?  What aspects of land use are really essential in the property course?  By land use, I specifically mean government regulation of land, setting aside private land use controls like nuisance, servitudes, and HOAs. 

The basic conceptual difficulty with covering land use in 1L property is that property is, like the other 1L classes, a common-law course.  Bringing in land use regulation obviously takes you out of the common-law world, and requires some introduction to things like, you know, the government.  Such an introduction is probably useful, but one wonders how to incorporate it into a first-year class whose focus up to that point has been on how judges arrive at decisions in a world where we assume regulation is either non-existent or incompetent.  One of the reasons I like the common-law orientation of the first year is that students too readily assume upon entering law school that every problem can be solved simply by passing a command-and-control regulation -- so if someone is polluting, just ban pollution, and problem solved.  The common law does not permit such pat answers, and so students learn to engage in more complex problem solving (such as, how nuisance law can deal with the problem of pollution).

At the same time, private land use controls have serious limitations about which students should be aware -- nuisance law is indeterminate, ad hoc, and beset by collective action/transaction cost problems; covenants, servitudes and HOAs face similar problems and are also unable to deal with impacts outside the properties subject to the restrictions. I introduce land use, zoning specifically, in my property class to bring out the flaws in private land use controls and show how zoning, as it was originally envisioned, aspired to overcome these flaws by coercively submitting an entire community to a comprehensive set of clearly defined restrictions.  I use the canonical Euclid case and introduce Euclid's zoning map for the purpose of showing how, as the Court saw it, zoning was an evolutionary advance on the common law: instead of adjudicating land use disputes on a parcel-by-parcel basis as in nuisance law, or subdivision-by-subdivision as in servitude/HOA law, zoning enables the  comprehensive planning of an entire town.  I spend about twenty minutes in class just examining Euclid's zoning map to get a sense of what the village's plan was, and how Ambler's parcel fit in with that plan.  You can see the way the village was trying to channel industrial development around the Nickel Plate Railroad and preserve its single-family districts by using multi-family and other "intermediate" uses as buffer zones between industry and single-family residence.  This is designed to reinforce to students how we have left the world of the common-law and entered a new world in which each parcel is seen as part of a whole.   (By the way, here is a copy of Euclid's 1922 zoning map: Download 1922 Zoning Map.  In land use, I show this map as well as Euclid's current zoning map (Download Euclid Zoning Map) with which I like to compare the original, and the city of Irvine's zoning map, (Download Zoning-Map) which I see as kind of a post-modern answer to Euclid's zoning map.)

In doing this, though, I am deliberately setting my students up to be disillusioned (as if one semester of property hasn't already accomplished that.)  As I said before, the last thing I want is for students to think that regulation can solve all our problems, and that the common law is all just a waste of time, or a prelude to what's really important.  After one class period discussing Euclid, I spend a few classes showing that, in fact, regulation doesn't solve the problems of the common law.  I provide a very brief overview of things like variances, spot zoning, special uses, and nonconforming uses, all designed to show one thing: that zoning has left behind the lofty claim of comprehensive planning and instead returned to the very case-by-case adjudication that was supposed to be the common-law's fatal flaw!  And courts, in reviewing these modern zoning techniques, are not blindly deferential as Euclid was, but apply common-lawish reasoning to adjudicate these disputes.  In short, one cannot escape the common law method of adjudication even in a regulatory state.  I think it is extremely important for teachers of first-year courses to impress upon students that the common law is a foundation for their legal education that will continue to be important even when they "graduate" to learning about the administrative state.  For me, a brief excursion into zoning serves that purpose.

While on the subject, there is the small matter of takings (groan), which is a very challenging subject for both first-year students and, uh, everyone else.  Again, in teaching takings in Property, my focus is on reinforcing the lessons from the common law, and showing how the common law remains relevant in assessing the validity of regulation.  And indeed, it is the case that many hallmarks of common-law adjudication are present in takings jurisprudence, including the importance of expectations (see Penn Central), the debate between certainty and fairness (per se rules v. balancing tests), the significance of the right to exclude (physical occupations), the problem of transaction costs (U.S. v Causby, for example), and, ultimately, how we define that elusive term "property," which as I see it is the foundation of the entire course.  For the basic property course, I find brief discussion of chestnuts such as Loretto, Mahon, Penn Central, and Lucas sufficient to sketch these themes.  Loretto brings out the right to exclude issue, and I also use it to digress into a brief discussion of Causby and the transaction cost problem (why distinguish physical occupations from other types of equally serious non-possessory interferences?) Mahon and Penn Central bring out the importance of expectations and the basic merits and flaws of a balancing test, as well as a few other points, while Lucas shows the virtues and vices of a bright-line rule.  If I were confined to a shorter period of time, I would probably just do a short mini-lecture on Mahon to introduce Penn Central and curtail the discussion of Lucas significantly (students really struggle with "background principles of state law").

For me, the key thing in deciding how much land use to incorporate into the first year property class is to keep your eye on the ball, which is the common law of property and teaching students to appreciate the common-law method.  Every aspect of my discussion about land use is designed to reinforce something we learned about the common law and to highlight the continuing relevance of the common law in the regulatory state.

I hope this gives you some food for thought, and if anyone cares to comment on how you incorporate land use into the 1L property class, I welcome your contributions. 

Ken Stahl

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