Monday, November 20, 2017
Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 5: How to Create a Practical Context for Learning?
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 Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]
Contemporary Issues in Teaching Land Use
Question 5: How to Create a Practical Context for Learning?
by Jonathan Rosenbloom
Chapter 3 starts with classic flexible zoning techniques, such as zoning amendments, special use permits, and variances, that help communities and individual lot owners address changes as they occur. As John and Stephen stated, attending a plan and zoning commission or a board of adjustment hearing and discussing the hearing before and after are valuable experiences in learning how these techniques are implemented.
As part of understanding the practical application of these techniques, it is equally important for students to question whether the techniques are adequately addressing the broad range of critical changes facing communities. Hurricanes Maria, Harvey, and Irma, wildfires in Colorado, Montana, Oregon, and Washington, and other disasters have shown that we are in a time of uncertain ecological change. Communities face a barrage of unknown challenges that may occur in different and, at times, divergent ways. California’s five-year drought, for example, ended with one of the wettest winter/spring periods on record, which was followed by catastrophic and on-going fires this fall. These events “are reminders that we live in an era of standardized disasters.” Amy Davidson Sorkin, In the Dark. In addition to ecological changes, students should be aware that communities face emerging social and social-ecological changes, such as autonomous vehicles and changes in e-commerce and housing like tiny houses, that will influence land use patterns.
Students should consider these challenges in light of classic flexible zoning techniques. Before attending a hearing, students can discuss whether the existing flexible zoning techniques are adequate to prepare communities for an uncertain future. This may include exploring the kinds of challenges confronting communities and how those challenges affect land use patterns. After the hearing, it may be helpful to explore whether those challenges were raised at the hearing and, if not, why. One likely answer is that the techniques were not designed and are not adequate to address major social-ecological or ecological changes. They are mostly focused on use, height, and bulk.
It is important to point out, however, that these techniques remain the primary methods of incorporating flexibility into many zoning codes. Further, that focus may be misplaced in today’s changing climate. This may lead to a discussion of long-range [resilience] planning (discussed in Chapter 2) and whether that kind of stagnant long-range planning is adequate given the rate of changes. Further, what, if anything, would be helpful to accommodate the types of changes we are seeing and can expect to see. This may be a good point to foreshadow some of the techniques in Chapter 4 (such as, development agreements) and introduce adaptive governance as a means to help identify and track changes and to make policy adjustments in a more nimble, deliberate fashion.
At Drake Law School, we will delve often into Des Moines new proposed zoning code (for the most recent version of the code at the time of this post). That code, which incorporates several post-Euclidean strategies, such as form-based zoning and sustainable development, does not mention autonomous vehicles, e-commerce, or fundamental ecological changes. Maybe it doesn’t need to, but I think it is important for students to realize that most zoning codes are stagnant pieces of legislation. Unless more aggressive means of understanding and tracking changes and altering policies based on those changes is incorporated throughout core parts of zoning laws, communities will continue to be ill-prepared for a rapidly changing future.
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.
Previous posts in the Contemporary Issues in Teaching Land Use series