Monday, June 12, 2017

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by Jonathan Rosenbloom

[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, beginning with Chapter 1. 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 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Jonathan Rosenbloom

One land use “coming-to-age” moment is the conceptual and legal shift from nuisance to zoning. This shift provides numerous teaching opportunities and valuable lessons concerning land use and the law generally. Thus, the first question in our series on teaching land use is:

What do you consider to be some of the most important lessons stemming from the materials on the migration from nuisance to zoning and what do you want the students to understand?

On one level, there are valuable lessons that can be gleaned by comparing the legal approach of zoning versus nuisance, including a discussion of proactive action (zoning) versus reactive action (nuisance), district-wide regulation (zoning) versus single lot(s) regulation (nuisance), and executive decision-making (zoning) versus judicial decision-making (nuisance).

However, in this brief blog I’d like to consider a more generalized educational moment. The nuisance/zoning materials provide a good opportunity to make clear that land use law has a concrete and significant impact on the physical conditions that form communities. While this seems like an obvious point, students can easily get lost in text and disassociate the law (cases, ordinances, statutes) from the physical manifestation of the law that really makes-up the community and its ecology.

In few topics is this more important than land use, as the law directly dictates physical form, structure, movement, and others. The nuisance/zoning materials are helpful to bring this point to the fore as they partially explain the value zoning adds and where nuisance is unable to address confrontations occurring in communities. In this regard, the nuisance/zoning materials present a great opportunity to explore how the law translates directly into the landscape we see around us. It is also a good chance for the students to begin to get out of the classroom and into the community to see the power of land use laws. As a topic that can be taught at the beginning of the semester (we have these materials in Chapter 1), this is a critical lesson that can be revisited throughout the course in more complicated ways, including asking the students to consider the ramifications of judicial decisions and ordinances on their community.

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.

Pages from Nolon Land Use and Sustainable Development Law 9e

Future posts in this series will be archived

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This is a great question for a roundtable. Coming at it from experience as a litigator in civil residential nuisance abatement cases, I would invite consideration of how housing and building maintenance codes fit into the dynamic in the question. Nuisance abatement really is limited as a remedy after serious abuse of real property has occurred and harm has been done. It is also a method of enforcing compliance with codified standards for protecting the people from abuse of real property that is detrimental to the health, safety, wellbeing and property rights of neighbors and the surrounding community. In that perspective, it is both remedial and preventive.
Those of us using the term "strategic code enforcement" describe when and how to use the array of code enforcement tools--e.g. civil nuisance abatement, criminal prosecution for compliance, vacant property registration, point-of-transfer inspection, re-occupancy inspection, targeted inspection, to list a few--in a coordinated, multi-faceted community strategy. That kind of nuisance prevention or property blight intervention delivered by a mix of coercive regulation and collaborative compliance assistance is strategically deployed in a way that recognizes that different zones need different enforcement interventions. It is a bit like zoning made fluid and ambulatory. Is it possible that zoning, as a concept, is connected to property maintenance as well as use. After all, the distance between use and abuse is not great and the regulation of use presumes implicitly the mitigation of abusive consequences in the designated lawful use.
Now as urban uses become more mixed--chickens, but not many and no roosters; swales, but not cesspools; bio-masses, but not noxious weeds; farms, but no chemical fertilizer--zoning and code compliance issues would seem to be a more complex challenge for municipal policy makers. And as the sustainable development discussion is encountering notions of just sustainability applied at the community level, will the addition of social and economic justice--of racial and ethnic segregation as a cause of health deprivation, of economic inequality as a destabilizing housing market factor, for instance--be a larger part of the sustainable development discussion? What do you thought leaders think about this stuff?

Posted by: Kermit Lind | Jun 12, 2017 12:50:19 PM

Hello Kermit and thanks for your thought-provoking comment, which is packed with wonderful quotes, such as "swales, but not cesspools"--indeed! You raise several excellent points that I'd like to think about before responding further. In the meantime, I hope others weigh-in and we'll hear from Patty, John, and Stephen over the next several weeks. Hope you are well.

Posted by: Jonathan Rosenbloom | Jun 13, 2017 9:28:38 AM