Monday, August 14, 2017

John Nolon on Contemporary Issues in Teaching Land Use: Question 3:  Teaching the Economics of Land Use Regulation and Ethics

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, and we are now up to Chapter 2. 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 3:  Teaching the Economics of Land Use Regulation and Ethics

by John Nolon

Patty Salkin’s post raises the question of balancing the public welfare with individual property rights and interests.  The query provides an excellent opportunity, early in the semester, to focus students on the governmental entities and processes through which this balancing is done and calling to their attention the impressive number of interests that comprehensive plans have to consider and balance. 

The Chapter is about land use plans, which are not regulatory. Students learn that the plan is to guide subsequent land use regulation, notably zoning, which directly affects property values and protects surrounding areas and promotes larger-scale public interests.  The local legislative body adopts laws, including zoning, and students generally understand how the legislative process works. But, who is engaged in planning?  How is the public involved in planning as opposed to adopting laws and regulating? 

The answers vary from state to state, so we start by looking at a state of interest to our students. Where are the rules for the adoption of a comprehensive plan found?  Is the official adoption of the comprehensive plan the responsibility of the local legislature, the planning commission, or some hybrid body?  How is that board constituted: who makes the appointments and what are the criteria for serving? What are the elements of a typical comprehensive plan?  Are property values and developer economics considered?  What about environmental protection and natural resource conservation?  Does traffic congestion,  transit oriented development, or complete streets get included? What about historic preservation, cultural values, affordable housing, jobs and housing,  community character, agricultural land protection, resiliency, urban agriculture, green buildings and infrastructure, even climate change mitigation? Did students realize that land use law comprises such an exciting menu of societal interests? This should make them want to go home and tell their housemates what an exciting course they are taking.

If the comprehensive plan truly guides the adoption of zoning then how important is it for developers, brokers, business owners, environmentalists, conservationists, preservationists, housing advocates, community groups, and homeowners to become involved?  What is the process by which the local comprehensive plan is adopted? Are public hearings held?  Are less formal meetings held?  When, at what time of day, and in what place?  Are special topic advisory groups created to help?  How effective are they for getting the general public involved?  And what about special interest groups? Once the process is known, then possibilities of advancing public and special interests become clearer.

Speaking of balancing disparate interests, what is the role of the lawyer and the legally-required process in facilitating productive dialogue, building consensus, and looking for pie-expanding solutions rather than zero sum, win/lose results?  How can required public processes involving such a large number of issues be held so that productive discussions can be held?  Returning to Patty’s questions, is there necessarily tension between public and private interests, or can our land use system affirm them both and use them to mutual advantage?

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]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom ]

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