Monday, August 7, 2017

Patricia Salkin 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 Patricia Salkin

Chapter 2 of the casebook introduces students to land use plans and the planning process. Section 2 begins an important conversation about the economics of land use regulation. Students may have danced around the periphery of this issue in property law and/or constitutional law when the Fifth Amendment takings clause was discussed, but it is a critical lens within which land use public policy and regulatory decisions are made.  Who gets an economic windfall and who is subject to a diminution or wipe-out in value and why are important questions in the politics of land use planning and zoning.  Tip O’Neill’s famous quote, “All politics is local,” sings loud and clear in the land use decision making context.  Section 2 begins with a hypothetical that begins to frame the tension.  Section 5 of Chapter 2 is a good companion to this discussion as it focuses on the issues of ethics and professionalism for the players in the land use game raising conflicts of interest among other ethical dilemmas.

Question: How do you engage students in debating the delicate balance between the government’s power and responsibility to protect the public health, safety and welfare (the police power introduced to students in Chapter 1 through the Euclid case) and the rights of individuals to the quiet enjoyment of their property (the Chapter 1 nuisance cases) including protecting the economic value of their land?

I begin by organizing students in groups of two or three (depending on the size of the class) and I give them the following five questions to discuss for 5 to 7 minutes.  I typically assign each group just one or two of the questions,

  • How should we balance the public interest with the private interest? Should it be a balancing act at all? What standard or test should be applied?
    • Should landowners resolve all disputes among themselves between themselves? Why or why not?
    • Should we leave property use to market forces? Why or why not?
    • When, if at all, is it appropriate for government to get involved in deciding what you can and cannot do with your land?
    • Should government regulate some uses and not others? How would you decide?

When the class comes back together, each small group shares their thoughts on the questions assigned and it leads to some terrific debate about issues including: How does the government decide its proposed allowable use(s) of the property is best for the community as a whole? How much influence do the voters have in the decision making process?  Is this is a good thing or does it raise concerns?  Should land use lawyers be politically active at the local level?  Why or why not?  What does it mean to be politically active in counties, cities, towns and villages?  Where is the line between being politically active and advocating on behalf of clients and hitting ethical quagmires?

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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