Monday, August 28, 2017
Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 3: Teaching the Economics of Land Use Regulation and Ethics
While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 2. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]
Contemporary Issues in Teaching Land Use
Question 3: Teaching the Economics of Land Use Regulation and Ethics
by Jonathan Rosenbloom
On the question of how to engage students in the debate of balancing economic interests in the planning process, Patty, John, and Stephen set forth many great ideas on focusing classroom discussion. One additional consideration for students to understand is where and when lawyers raise these economic issues.
Throughout the book we discuss the economics of land use regulations in a variety of contexts. The context in Chapter 2 is the planning process. One slightly confounding issue for students—and ultimately for practitioners—is where and when to make economic arguments in the context of comprehensive planning. It is a particularly vexing issue because important parts of the comprehensive plan are often drafted and enacted before a client’s economic interest is actually implicated. For example, it’s not uncommon for a local government to draft a comprehensive plan before overhauling or amending the zoning code, which occurs before amending the zoning map. Whether one’s financial interests are implicated, however, is not clear until the map is proposed.
It’s important for students to realize that the drafting or amending of the comprehensive plan is a critical time to be involved, even though it may be unclear as to how or whether one’s interests are implicated. Each step of the drafting process provides an opportunity to help craft future land use patterns. In addition, each step serves as a foundation for the next step. For example, comprehensive plans’ vision statements establish a foundation with which comprehensive plans are built. Zoning codes are then drafted, amended, and/or interpreted in light of comprehensive plans depending on state law (something we discuss in Chapter 2, Section 3). Thus, even though vision statements may set in motion inevitable economic impacts for a variety of parties, they are often drafted with little fanfare. This is particularly true in jurisdictions that require some economic analysis as part of comprehensive planning.
Des Moines’ comprehensive plan provides a good illustration. Adopted in April 2016, the entire vision statement is progressive in its outlook for Des Moines and I plan to spend a couple of classroom minutes to review it (it is located on page nine of the comprehensive plan). The vision statement makes eleven broad statements, such as “In 2040, Des Moines will have . . . Vibrant, healthy, and walkable neighborhoods with a mixture of housing, recreational opportunities, public spaces, schools, and mixed-use commercial centers.” Those eleven statements clearly guided the entire comprehensive plan. But reading the vision statement and the full plan do not provide a clear indication as to whether one’s economic interest is affected. The Des Moines’ plan is now the basis for the drafting of a new zoning code, which will implicate some citizens’ economic interests that can likely be traced back to the comprehensive plan and its vision statement.
The process of drafting of a comprehensive plan is an invaluable learning experience. Students can see whether and what economic interest are raised and by whom. Students can see those interests arise at a variety of stages, including public presentations, committee meetings, neighborhood meetings, council workshops, council hearings, and others.
Engaging with economics at the comprehensive planning level requires law students and lawyers to have foresight and to understand the economic implications of planning and to be engaged at all levels of the planning process. Of course, economic interests (as well as environmental and social interests) can change over the life of the comprehensive plan, particularly when state law does not require a plan for ten or twenty years. See, e.g., R.I. Gen. Laws 1956 §45-22.2-6(a) (minimum 20 years); 53 P.S. §10301 (c) (minimum 10 years). Further, it requires a forward-thinking client to pay for such services, but the non-pecuniary benefits of being involved and being a part of the planning process can lead to a host of pecuniary and non-pecuniary opportunities.
The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.
Previous posts in the Contemporary Issues in Teaching Land Use series