Monday, December 4, 2017
Patricia E. Salkin 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 3. 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 Patricia E. Salkin
Chapter 3 in our casebook is probably my favorite chapter to teach and the chapter I dedicate the most class hours. This is the “nuts and bolts” chapter and the information discussed is where most land use lawyers earn their “bread and butter” with routine zoning cases. I agree with my colleagues who all posted about having students visit zoning and/or planning board meetings, and more importantly reflecting on these meetings from social and political sciences and from legal perspectives. This is also the first chapter in the book where most students in the classroom can personally relate to the material. For example, they can understand about the desire of neighbors to sometimes want pools, decks or additions to their homes and the challenges when setbacks fall just shy of those required by zoning. I like to spend time discussing the legal strategies and the division of decision making authority when it comes to use variances versus rezoning and how this ties back to the material in Chapter 2 on the comprehensive plan and conformance with the plan.
Like Stephen Miller and our other colleagues, one of my goals in Chapter 3 is to make sure that the students are comfortable with reading and navigating through a zoning ordinance. These laws are not on Westlaw and Lexis and while they may be relatively easy to find on-line today (assuming we can access the most up-to-date version), before this course most students have never works with a local law. In my July 24, 2017 post I discussed how I use the local zoning ordinances/laws to draw comparisons with the Standard Zoning Enabling Act in Chapter 1. When we get to Chapter 3 I am focused on using the ordinance in practice to best advise and represent clients. We start with the definition section. Each person in the class selects a different zoning law of their choice and to start class I begin by asking the students how select words are defined in their zoning ordinances. The class quickly realizes that words and phrases are defined differently in each local law and that in some zoning laws some of the words are not defined at all. This best exemplifies what it means to work with local laws that lack the uniformity of statewide statutes. It brings home the point that they can’t assume that what works in one town, city or village will be the same as a neighboring jurisdiction. More so than looking up legal terms of art in Black’s Law Dictionary, good zoning lawyers have to look up the meaning of every word in the ordinance since it can make a difference for their client. We also discuss what happens when certain words are not defined and yet a zoning decision hinges on the interpretation of that undefined word. Statutory construction from first year legal process/lawyering springs into action and students who have been exposed to legislative drafting now hone in on statutory interpretation and consequences for vague and/or provisions.
Another way in which I use zoning ordinances is for in class team problem solving. I use the zoning ordinance for our host community, the Town of Islip, NY. I organize the class into three teams of associates of my law firm, and I assign each team to a new client of our firm who desires to site a particular use in a particular area of the Town. Of course some of the uses are not defined in the definition section but they or related uses are allowed in certain districts. Some uses have restrictions, some decisions are made by the legislative body and others have been delegated to the planning board or to the zoning board. They must work with the zoning ordinance navigating through various sections in order to arrive at reasonable advice for our clients and be able to articulate the challenges and opportunities. One of my favorite “client cases” involves someone who wishes to site a pet cemetery in the town in a district where cemeteries are allowed by special use permit. Of course the word “cemetery” is not found in the definition section – so is a pet cemetery the same as a cemetery for the burial of human remains? This is a fun but very real simulation.
While on the subject of simulation, some semesters I balance the visit to the zoning board meeting with a mock zoning board in class. This works particularly well with classes of 15-20 students. For this exercise I assign some students the roles of members of the zoning board (3 to 5 students), I designate a chair of the zoning board, and appoint a counsel to the board. I divide the rest of the class into three groups and I give each individual person in the group an envelope with instructions inside as to what they are to say to the zoning board of appeals on the pending matter before the board that is of interest to their group. One person is designated as the applicant, and one to two people are designated as neighbors/community members opposed to the application. Each of the made-up fact patterns resembles one of the variance cases in the textbook (obviating the need to specifically review by rote the cases, but rather bringing them to life through the simulation). I ask the Board Chair to begin the meeting and to call each matter one at a time, and to allow for presentation, speakers and questions, if any, from the Board. When the meeting is concluded, I ask each person in the class to vote on how the application should be decided and we discuss why (this also involves application of our State enabling statutes which contain statutory tests for the granting of use and area variances). When we debrief after the mock meeting, we have a lot to discuss from the running of public meetings, the pros and cons of board member questions, the role of Board counsel, the length of time applicants and opponents can and should speak, and then the substance of the decision.
Both of these simulations are very well received by the students and they are additional tools to bring the practical side of zoning and land use controls to the forefront for our students. I am happy to share my materials (although they are ordinance and state specific) with readers. Feel free to send me an email at email@example.com. I am also interested in learning about your team-based problems in this chapter and with your permission (and attribution) would be happy to share with 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.
Previous posts in the Contemporary Issues in Teaching Land Use series