Monday, July 31, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

[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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

by Stephen R. Miller

The origins of modern land use planning owe a great deal—for better or worse—to the Standard State Zoning Enabling Act (SZEA) and, to a lesser degree, the Standard City Planning Enabling Act (SCPEA).  Professors Rosenbloom, Nolon and Salkin have already offered a number of excellent ways to engage students with these texts.  I will focus on several others not already mentioned.

First, I use the SZEA as a way to talk about ways that the federal government can use informal power to significantly alter how land use decisions are made at the local level.  Indeed, the SZEA was drafted by an advisory committee of the U.S. Department of Commerce under Herbert Hoover, and it created many of the formalities that we now expect and take for granted in local land use decisionmaking.  Many people focus on the fact that there has never been an official national land use planning act (although one was proposed in the Seventies by Congressman Udall and promptly went nowhere); however, the SZEA was an informal proposed statute that, in some form or another, was ultimately adopted by every state in the nation, which paved the way for widespread local planning.  In this way, the federal government was highly influential in how we came to structure land use decisionmaking.  One example that is a “go to” for me to get students thinking is the appointment of the zoning commission by the legislative body.  SZEA § 6.  I encourage students to think about why the zoning commission, which has such an important role in the evolution of a city, ought to be an appointed position rather than an elected one.  Isn’t it remarkable that there are either no—or just a few—zoning commissions almost a century later that are elected?  Why is that, especially when you think of all the other far less important roles in a city that are often elected?  That bias toward appointment, rather than election, of zoning commissions is the implicit power of the SZEA still at work, and it shapes what we think is possible.

Second, I also ask students to also take a look at the two sections of Idaho’s Local Land Use Planning Act (LLUPA) that grant powers to the planning and zoning commissions.  (Idaho Code §§ 67-6504, 67-6505, for the curious).  These sections, while not utilizing the words of the SZEA and SCPEA, are wholly indebted to these models in how allocations of power occur.  This origin story is valuable in a place, like Idaho, where land use power is controversial.  Many people wonder where land use law came from:  did it just drop out of thin air?  Why do we make decisions this way?  By tying the state enabling act back to these model codes, the origins and the rationale move from the state to a broader connection with national consequences.  It’s not just how it is in Idaho; these general allocations of power are similar across the country.  I encourage students to evaluate why and think about that larger question as we move through the course.

As a side note, I have been doing some digging into the history of the SZEA and the SCPEA.  I give students the resource on the history of the SZEA, Professor Salkin mentioned, as recommended but not assigned reading (available here).  As that article highlights, it is remarkable to me how little is available on the “origin story” of these model statutes.  These models were drafted by advisory committees that, in an era before the Administrative Procedure Act and the Federal Advisory Committee Act, apparently kept very scant records.  In any case, my contact with the U.S. Department of Commerce librarians (with much assistance from my colleague, Stacy Etheredge) has confirmed that they have no official documentation related to either of these model statutes.  Isn’t it remarkable that the debates on the model statutes that formed the background principles for how land is used in the United States are so hard to find, and may not exist at all?  I personally find this another interesting part of the story.

Finally, another interesting tidbit that I have not used in class, but which I hope to find a way to distill down into a meaningful nugget some day, is how these model statutes were part of a much larger creation of model codes that may be the most important legacy of Herbert Hoover.  Two other model statutes that I hardly hear land use professors mention that were generated in this time played a significant role in the evolution of transportation policy.  These include the Model Municipal Traffic Ordinance and the Uniform Vehicle Code.  As we enter into a world where we try to integrate land use and transportation planning, I think it is interesting to note that the separation of land use and transportation thinking was there from the very beginning in Hoover’s commissions.  This is yet one more way that our current land use patterns are indebted to these federal advisory committees of the Twenties about which we know almost nothing.

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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

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