Monday, September 18, 2017

John R. Nolon on Contemporary Issues in Teaching Land Use: Question 4:  Teaching about the Comprehensive Land Use Plan

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 4:  Teaching about the Comprehensive Land Use Plan

by John R. Nolon

Our chapter on the comprehensive plan contains several answers to the question Patty raises regarding the importance of the comprehensive plan.  First, starting with the basics, students are reminded that the local governments get their power to plan from enabling acts passed by the state legislature. Local sovereignty is derivative. Second, these enabling acts contain substantive standards and procedural requirements. Third, if these standards and requirements are not followed, the plan is void as ultra vires: beyond the power of the local government to enact.  Fourth, plans are advisory, not regulatory and property owners generally lack standing to challenge them for their effect on property values because of the difficulty of proving damages.  Fifth, this difficulty is exacerbated by the fact that properties designated in the plan for particular land uses do not necessarily have to be rezoned for those uses, if the legislative body can explain why, at this time, the articulated use is not appropriate. Relatedly, the difficulty of determining whether a proposed rezoning is in conformance with the plan is explained, in many cases, by the fact that plan provisions are often insufficiently detailed to provide guidance as to what in conformance with means for any given property. 

There is another, perhaps larger, lesson in this Chapter that helps students appreciate the legal significance of the plan. We hold our property subject to reasonable regulations that clearly advance public interests.  When a provision of a comprehensive plan can be referenced to explain a subsequent land use regulation, it is very difficult for a challenger to show that the regulation is unreasonable.  This turns the exercise of drafting plans and compliant zoning into a serious proposition, for it insulates regulation from substantive due process challenges. It also protects regulations from equal protection challenges by providing reasons why certain properties are treated differently from others. 

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]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom]

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This “Teaching” series is a great idea. Thanks. I am looking forward to an upcoming one that would explore the dynamics between all of the planning and zoning codification issues along with the development and enforcement of property maintenance codes. As a student of code enforcement management, it strikes me that the weakness of maintenance codes and their enforcement undermines what land use planning and zoning aim to achieve. Is the sustainability factor adequately included in, or connected to, land use plans and zoning codes? Also, how does the dynamic of reutilization fit into the picture? Is there such a thing as “anticipatory reutilization” that recognizes the fluidity of economic as well as environmental conditions? Just wondering about that.

Posted by: Kermit Lind | Sep 18, 2017 9:52:11 AM