Tuesday, April 17, 2012

In the shadow of the law?

Every year, I reserve five spots (out of twenty five) in my Land Use Law course for students from the University of Idaho’s program in Bioregional Planning and Community Design. While they sometimes struggle with the more distinctly ‘legal’ elements of the course, they bring different perspectives that greatly enhance our overall experience. And regularly the best student work in the course comes from students with no other legal training. Of course, some of the planning students struggle more than others. Yesterday, after talking for about thirty minutes about a particular student’s struggles, the student asked: “why do you even allow planning students in your class?”

The answer I gave reflects what I find to be simultaneously the most beautiful and exasperating element of land use law: for the most part, land use law is interpreted, implemented, and enforced by non-lawyers. And even better, or worse, many of those non-lawyers are citizen volunteers with no formal legal training in either planning or law.

I am still trying to figure out what this means about how I should teach a course in land use law in a law school. If nothing else, I suppose it might mean that my course allocation formula requires reconsideration. Maybe I should only allow three planning students, two law students, and twenty citizens with nothing else to do on a Wednesday evening.

Ok, that’s perhaps a bit too cynical, and maybe a bit mean and hypocritical, particularly since I am also one of those citizen volunteers (and we had to change our meetings to Thursday because we all did have something else to do on Wednesdays).
But my year on our city’s Board of Adjustment has only further solidified my feeling that in the mundane, day-to-day applications of land-use law on the ground, legal knowledge or understanding is largely irrelevant. It is not so much that my local board, for example, operates in the shadow of the law, but rather it seems to operate independent of, and sometimes directly in contradiction with, the law’s requirements. For example, when a variance is granted to allow an oversized garage because: (a) the lot itself is oversized and the legally allowed garage would thus seem relatively small (the parcel’s “unique circumstance”), and (b) without the garage, the landowner would have to park his oversized pickup on the street (the “undue hardship”), it’s reasonable to ask whether our standard variance requirements mean anything.

Of course, the law -- even a variance ordinance -- does mean something. And most local boards and commissions make good faith efforts to implement the law as written. That they might struggle occasionally does not suggest that we should change how we teach our courses in the law school. But maybe it does suggest that we should participate in more land use “courses” outside of the law school. I know most law professors are already involved in community-service activities outside of their academic obligations. And maybe it simply youth (I hope) and naivete that makes me dare suggest that we owe any additional efforts in community service. But this is my plea that we -- as both students and teachers of land use law -- volunteer specifically for what can admittedly be the most frustrating of experiences: service on planning and zoning commissions, boards of adjustment, or other citizen land use boards or commissions.

Land use law does more than any other area of law to shape our day-to-day experiences. And that law is implemented more by untrained volunteers without access to our expertise, than it is by our carefully-groomed proteges. Maybe that's a good thing, and maybe there is reason not to trust academics with these tasks. My own city council didn't even want me on the planning and zoning commission (something about not being sufficiently pro-business). And I’ve been on the wrong side of a number of 5-1 votes. But eventually, if nothing else, we’ll all begin to understand how variance law should work in our town. And I'll probably learn more in the process that the "students."

-- Jerry Long


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Jerry - I love this post, which is so relevant to my clinic! Occasionally I take non-law students and always find it so rewarding. Also, your remarks about the (non)application of the law in variance cases is right on the money with one of our recent projects! Thanks for sharing your thoughts.

Posted by: Jamie Baker Roskie | Apr 18, 2012 6:06:40 PM