Monday, January 22, 2018
Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 6: Introducing the Common Law and the Power of the Pen
[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 6: How do you introduce students to the common law and the “power of the pen?”
by Jonathan Rosenbloom
Not only can the areas of nonconforming use and home occupation be glossed over, as both Patty and Stephen suggest, but also they can be so straightforward that they are difficult to teach in an engaging and inspiring way. Patty’s and Stephen’s posts provide several good ideas for teaching these topics in the future. Below, I set forth one additional suggestion. It is a home occupation exercise that I find helpful in livening up the discussion, while providing a real-world introduction to these topics and an opportunity to engage the topics in a way that a land use lawyer may.
This exercise was developed by Keith Hirokawa (Albany). He was generous enough to previously share it with me and has allowed me to discuss it here. For the exercise, the students are asked to determine whether they would be permitted to open a law office in their home as a home occupation / accessory use. Students are asked to draft a short memo (2-5 pages) identifying the regulations and any significant obstructions they face.
One of the first tasks students must do as part of this assignment is to find the relevant city code and map, in my course that would typically be the Des Moines zoning code and zoning map. By the third chapter of the book, we’ve already looked at various portions of the Des Moines zoning code, but possibly not the map. This may be the first-time in the semester that the students are asked to actively combine the map and the code. This exercise provides a good opportunity to make the connection between the code and the map and to discuss how to read a zoning map and how to do so in conjunction with the code—critical land use lawyer skills that are not always part of land use law courses.
The other thing I like about this exercise is that it requires the students to wade through the code to find the relevant provisions for their zoning classification. This part of the exercise requires students to explore the table of contents, which may list over 100 sections. While determining which sections are relevant, students are also learning about what else might be in the zoning code. This provides a good learning opportunity to discuss what they saw in the table of contents and whether they had any questions about what something was or whether anything stood out.
Once students identify the relevant provisions, they find that they are often required to bounce from one section of the code to another. For example, the permitted accessory uses in an R1-60 district in Des Moines are those “accessory uses permitted in the R1-80 district.” Des Moines Code, Sec. 134-413. Thus, students are required to jump over to the R1-80 district, where they will find the following is permitted:
The home office of a[n] . . . attorney . . . in that person's bona fide and primary residence, provided that not more than one assistant shall be regularly employed therein, and no colleagues or associates shall use such office; not more than one-half the area of one floor shall be used for such office; no advertising sign shall be permitted excepting a type A identification sign or a combination of such signs not to exceed one square foot in area.
Des Moines Code, Sec. 134-343. Here again, we have a great opportunity to discuss important parts of the home occupation code. We can discuss why there are limitations on accessory uses and what those limitations are (for example, no associates in an R1-80 district). In addition, the exercise provides an opportunity to discuss other critical accessory uses, such as signs (see last sentence of Sec. 134-343 quoted above), which Stephen described in his prior post.
Finally, the instructions for the memo ask the students to not only identify the key provisions, but also to counsel the client and make relevant recommendations. As Keith noted in an email to me, “A significant part of the exercise is that it is not academic – [the students] need to counsel their client (which happens to be themselves) on the likelihood of success, steps to get there, obstacles and the like. They are required to address the issue as a lawyer and a professional.”
While the exercise is fairly straightforward, it is an all-around excellent one. I think the students enjoy it in that they are engaged in exploring what is permitted on their property. As Keith notes, “student reaction to this exercise has been overwhelmingly positive. Every time I have assigned this project, the students have raved that it really meant something to realize how land use law works, how to navigate a code, and also how to counsel a client.” The exercise provides a good opportunity to explore some fundamentals in searching a zoning code. And while we are working on fundamentals, the exercise also raises some of the complexities embedded in the map, the code, and the numerous provisions in the code. Overall, the exercise facilitates an excellent introduction and concrete understanding of home occupation.
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