Monday, June 26, 2017

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet

[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 Patricia Salkin

Jonathan Rosenbloom posed the first question: “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?”

My favorite case in Chapter One is Boomer v Atlantic Cement Company from New York because it portends so many issues later chapters in the casebook discuss, and quite frankly if time permitted this case could take the entire class period (but alas, that is luxury not afforded the typically 3-credit class). For example, it demonstrates judicial activism in the land use area.  Where there is no useful regulatory solution and where existing case law is not developed to arrive at what the court believes is a “just result,” a court may craft solutions that address evolving community or societal challenges (for example in the area of affordable housing, the Mt.Laurel case from New Jersey).  Boomer was decided in 1970 just as the notion of environmentalism and the need for governmental regulation in the areas of clean air and clean water were beginning to be seriously debated at national and state levels. It can also segue into the later discussion in Euclid on the separation of incompatible land uses.   

A second take-away from Boomer is the role courts play in balancing various interests in the land use context.  Without government regulation to protect the air we breathe, here the court was left to balance the public health concerns of neighboring property owners with the greater community-wide benefits of an industrial factory that is an economic engine for the region in terms of jobs/employment and the fact that the product manufactured was needed for ongoing construction and development (which activities also produce jobs and fuel the economy).   The economics of land use regulation is more formally introduced to the students in Chapter Two and it is a critical foundational concept for the students to grapple with especially for the takings material in Chapter Five.

A third point of discussion with students is the dissent’s compelling argument that the majority does not go far enough to protect the public health. This discussion is a prequel to the environmental and social justice movement of today.  Is it reasonable to simply mandate that the polluter responsible for negatively impacting public health be solely responsible for paying permanent damages one time to the neighboring property owners?  In the full opinion the dissent queries whether the public health is for sale.  We should ask our students what happens when the property owners receive their payment and then move on to a healthier community and less affluent people move in to ongoing polluted area because it is what they can afford (presumable the market makes the housing less expensive).  The Company is no longer required to make payments to new people who may be coming to the nuisance.  Is it acceptable that new homeowners are assuming the public health risk or now almost fifty years later given the weight of the social justice movement would the balance achieve a different outcome (removing the fact that environmental regulation has since stepped in)?  Was or should notice be required to be given to new purchasers of property where there may be significant health concerns? This can be juxtaposed with more recent statutorily required notices in the right-to-farm protections raised in the notes in Chapter Six.

The Boomer case helps to bring students of land use regulation to the important questions of balancing property rights, economic protection, public health concerns and notice.  These concepts are necessarily threaded throughout the casebook and I find that many times during the semester I am referencing “the Boomer case we read at the start of the semester.”

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

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

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Patty, This is great, and your discussion illustrates how much you can do with Boomer. One other possible approach with the case, which I do, is to use it as a way to contemplate remedies in land use decision making. To assist this, I use information from Dan Farber's excellent essay, "The Story of Boomer: Pollution and the Common Law." In particular, I utilize information from page 127 et seq, "The Aftermath," which tells the long story of what happened after this case was decided.

Available at:

Posted by: Stephen R. Miller | Jun 26, 2017 11:15:34 AM

Stephen, thanks for reminding us of the value of going back to find out what happened after key cases were decided. The story of the aftermath, or the "what happened as a result of the decision" are excellent teaching moments. For example, there is a series of law stories that has a volume on Property Law where some stories related to zoning are found. I use Michael Allen Wolf's excellent book about Euclid in class, and stories of what happened after the Lucas decision, the Kelo case, and others. We can link to stories as this blog series continues, because the ability to reflect on the impact of past decisions provides good insights for future planning and policy.

Posted by: Patricia Salkin | Jun 26, 2017 7:01:52 PM