Monday, July 10, 2017

Jonathan Rosenbloom 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 Jonathan Rosenbloom

In this series of four blog posts, we ask:

Do you teach the 1916 NYC zoning ordinance (NYC ordinance) and/or the Standard State Zoning Enabling Act (SZEA) and, if so, what do you want the students to understand?

While these two pieces of legislation provide an abundance of teaching opportunities, in this short blog I’d like to explore them as opportunities to hone students’ ability to analyze land use laws.

Throughout law school, students have significant exposure to cases and case analysis. They often have less exposure to legislative interpretation and even less exposure to state and local legislative interpretation. Many land use lawyers’ practice, however, is focused on interpreting local land use codes and the relevant state statutes, often for purposes of presenting before boards and commissions or negotiating with local governments. The NYC ordinance and the SZEA offer students a great opportunity to hone critical legislative interpretation skills necessary for any land use attorney.

Because we cover the NYC ordinance and SZEA in Chapter I, the students have an opportunity for land use legislative interpretation very early in the course. In our casebook, we cover the NYC ordinance and SZEA (as well as the Standard City Planning Enabling Act) immediately after nuisance. The text of the ordinance helps bridge the gap between zoning and nuisance. It states:

In a business district no building or premises shall be used, and no building shall be erected, which is arranged, intended or designed to be used for any trade, industry or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise; but car barns or places of amusement shall not be excluded.

This provides an opportunity to elucidate some of the short-comings of nuisance law and the differences between nuisance and zoning. It also provides a reason to delve into the text and discuss legislative interpretation.

The text of the NYC ordinance and SZEA also provide an opportunity to discuss legislative interpretation in the context of state authorization. Keeping the excepts concise, we provide enough of the SZEA to illustrate how state statutes authorize local governments to zone. For example, the excerpted portion of the SZEA authorizes local zoning of height, area, and use. Building off the SZEA provisions, the students can be asked whether the NYC ordinance would comply with the SZEA. As the excerpt in our book illustrates, the NYC ordinance provides classic Euclidean zoning (before it was Euclidean zoning), consisting of use restrictions (section 2), height limitations (section 8), and area restrictions (section 10).

The text of the SZEA also helps establish a foundation to understand and study more recent changes in zoning later in the course. In Chapter 7, for example, we discuss Smart Growth, New Urbanism, Form-based Zoning, and others. As we cover these newer approaches, it is helpful to ask the students whether they would fall within local authority as laid out in the SZEA; and what, if any, additional authority local governments would need to pass such new forms of zoning and what that authority might look like.

Following the NYC ordinance and SZEA we discuss the police power and power to zone in Carter and Goldman and, most notably, in Euclid and Nectow. While these cases help describe the basics of zoning and its legality, covering the NYC ordinance and SZEA first help contextualize the cases. They help paint a more complete picture of the laws at issue before evaluating their legality.

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]

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