Monday, January 15, 2018

Stephen R. Miller 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 Stephen R. Miller

Patty Salkin’s first post raises a number of interesting and lively issues on subjects—non-conforming uses and home occupations—that many professors (myself included, in some years) might feel they could easily skip.  I wanted to add on to her comments in two ways.

First, as a substantive matter, there are several ways that resources in other parts of the casebook could be combined with this section that could perhaps justify utilizing this material more.  First, signs.  Signs are maybe the hardest non-conforming use to address because their nature is more transient than a building, but they can be lucrative and an important revenue source for many building owners.  Addressing the non-conforming nature of signs in locations that have sign regulations creating non-conformity is a great way into the subject that I think is also intellectually challenging to students.  A discussion of signs and non-conformity could also be paired with the constitutional questions raised by sign regulation that are discussed beginning on page 602.  In addition, home occupation discussions could also be paired with a discussion of short-term rentals and the sharing economy, which is included in the new edition beginning on page 577.  The short-term rental debate rounds out and helps students to re-coneptualize the idea of how hard it can be to classify a “home occupation.”  In both cases, these would be thematic explorations that link non-conformity/home occupations to other legal principles that could justify the time in a tightly-packed syllabus that would otherwise forego them.
Second, I thought Patty’s discussion of using non-conformity and drafting was brilliant and something I might try in the future.  Right now, when I teach signs, I use an example in Boise that illustrates precisely the point Patty made, though I only use it in class discussion.  With Boise booming, its size has crossed over the threshold where major national companies are starting to come into the city.  Among them is the sign company Lamar, which is purchasing old, non-conforming “panel” billboards and digitizing them.  The city code has no provision that expressly governs whether replacement of a panel (the old wood-style boards) with a new digital board is a “new sign” thus requiring a new permit.  As a result, the city takes the position that this replacement is a “change of copy.”  I happen to believe this is a misreading of the code.  I know of no other city that takes the position that replacement of a panel with a digital board is a “change of copy,” a term-of-art that usually refers to the swapping out of one ad for another.  Nonetheless, sloppy drafting—or perhaps dated drafting that did not keep up with technological advances—has created a legal conundrum both for the city and the neighborhoods.  I typically raise this example in class because there are several digital billboards now installed near the law school that students generally despise that have been put up without new permits precisely because of this ambiguity in the code.  It is a visceral lesson in how poorly drafting text, or text that does not stay up-to-date with industry changes, can place the city in a difficult situation.

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] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

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