Monday, January 8, 2018
Patricia E. Salkin 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 Patricia E. Salkin
Although the common law is introduced briefly in Chapter 1 with a 1L property/torts review of the law of nuisance, Chapter 3 offers a nice combination of continuing the conversation of state enabling statutes with the subject of variances, and it segues into areas of the law where we tend not to see much statutory guidance (e.g., nonconforming uses and home occupations) providing a wonderful teaching moment on the tremendous power possessed by the drafters of local land use ordinances. How do you teach students about local legislative responses to common law when the state does not speak? How can we get students to appreciate and practice drafting skills required for local government lawyers?
The topics of nonconforming uses and home occupations don’t always get the minutes they deserve in land use courses due to the difficulties we all have in allocating the small amount of time in a typical 3-credit class format. A small handful of states, such as Connecticut, have statutory language acknowledging the existence of nonconforming uses, but the overwhelming majority of states neither define nor uniformly regulate these legally pre-existing uses. The common law is rich with issues presented by the dilemma of the nonconforming use --- on one hand the use is grandfathered and allowed to continue, but on the other hand, the early pioneers of land use regulation believed that eventually the nonconforming uses would cease and new conforming uses would occupy the land.
Classroom discussions can become passionate over debates of fairness related to property rights in general when it comes to eliminating nonconforming uses and today the debate sharpens within the context of the right (or not) to rebuild and/or repair nonconforming uses following hurricanes, flooding, wildfires and other acts of god (or mother nature). However, what is “fair” is in the eye of the beholder, and communities, through developed shared values, are able to arrive at articulated “ground rules” in dealing with the nonconforming use challenges. The cases in the book draw attention to key drafting opportunities when it comes to expanding, discontinuing, and amortizing nonconforming uses as well as dealing with uses that have been destroyed through no fault of the property owner. I again ask the students to refer back to the local zoning ordinance they selected for review in class and we compare and contrast the provisions in the local laws on nonconforming uses. Students read aloud their ordinance’s approach to abandonment – we discover together through critical reading and analysis of the language that intent is most often not required; that uses may be abandoned after 6 months, 12 months, 18 months or even 24 months depending on the words in the local law; that sometimes the period of abandonment needs to have occurred in consecutive days and other times now. This leads to the realization that the local legislative body, as the drafter and approver of the local zoning ordinance, has tremendous power in addressing how the municipality will deal with the subject of nonconforming uses.
Another technique to demonstrate the responsibility that comes with the drafter’s “power of the pen” is to give students a short assessment assignment where a client has a pre-existing nonconforming use and due to either a potential discontinuance/abandonment or due to damage/destruction the zoning enforcement officer has determined that the use no longer exists. Give the students a passage from an actual zoning ordinance where the language is either vague or neglects to specifically address the situation at hand. Have the students write a memo to the zoning board of appeals advising them on how to interpret and apply the specific zoning code language to the matter before the board. This will enable the students to synthesize the common law with local law, and refresh their recollection on rules for statutory construction and drafting introduced in 1L legal process courses.
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