Monday, January 29, 2018
John Nolon on Contemporary Issues in Teaching Land Use: Question 6: Introducing the Common Law and the Power of the Pen
[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 3. 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 6: How do you introduce students to the common law and the “power of the pen?”
by John Nolon
My colleagues have discussed a number of intriguing opportunities in teaching the seemingly inauspicious topics of nonconforming uses, accessory uses, and home occupations. Another dimension the professor can consider is the issue of investment-backed expectations, which appears in later sections of the casebook, notably in those cases regarding regulatory takings.
When zoning was first adopted, it was feared that if nonconforming uses were not allowed to continue courts might find it unconstitutionally confiscatory. “How can the law that permitted me to build what I own suddenly draw a line around a district and not allow my use to continue?” That would be unfair, politically infeasible, and arguably arbitrary and capricious. The settled expectation of property owners is that their existing investments in development cannot be so summarily treated. Zoning had to tolerate the nonconforming use.
There is a similar expectation regarding accessory uses. The original zoning codes could not possibly list and permit all the accessory buildings and structures that property owners expect to construct in conjunction with their permitted principal use. “This R zone permits me to build a single-family house; of course I can add a garage, carport, even a swimming pool.” Again, it would be bad politics to prohibit the types of uses that typically accompany principal uses and no neighbor could rightfully complain that buildings next door that are customary, incidental to, and subordinate to the principal uses shouldn’t be allowed.
Harkening back to the Goldman v. Crowder case in Chapter One, why was zoning in Maryland declared unconstitutional simply because Goldman, the tailor, was prevented from stitching a few fabrics in the basement of his four-story townhouse? Did the Baltimore zoning ordinance not have an accessory use provision? The result of the case must have insured that municipal attorneys nation-wide made sure such provisions were included.
But, as courts remind us, tempora mutantur and overtime accessory uses become hand ball courts, homeless shelters, dance studios, or, God forbid, lawyers’ offices. They are arguably incidental, secondary, and customarily found in conjunction with single-family uses. Whether they are or not depends on the interpretation of those words by the zoning enforcement officer. When accessory uses begin to clash with the settled expectations of neighbors, they will get political attention and then the zoning is amended to include a list of permitted home occupations, limiting, for example, the number of associates in the lawyer’s home office or the square footage that can be committed to the home occupation.
Returning to the theme of the importance of language, teach students to read accessory use and home occupation sections of zoning codes carefully and apply standard rules of statutory interpretation to them. Is the list illustrative or inclusive? If illustrative, is my client’s use similar to those listed? Consult the rule of ejusdem generis. If inclusive, is there a word in that list that is a synonym for the use in questions?
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