Monday, February 26, 2018
Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?
[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 7: How Do You Teach the Contract Transformation in Land Use Regulation?
by Jonathan Rosenbloom
Stephen and John present two ways to approach the materials in Chapter 4 and the spectrum of potential coverage. The following falls in-line with either approach and can help illustrate what “contract transformation” can mean for developers, development, and communities.
On some level, Chapter 4 should baffle students. In that, by Chapter 4 students are familiar with and able to navigate zoning codes and what it means to build “as-of-right.” However, the tools set forth in Chapter 4 are, at times, an opportunity for staff, council, and developers to re-visit as-of-right zoning and question what would otherwise be a project built to code.
Students may find this mystifying. How can a city, for example, stop, alter, or a delay a developer from doing something as-of-right? Indeed, maybe it cannot. But how does a developer determine if a city acted ultra vires? Aside from resource-heavy litigation, there are not many ways. This, I think, begins to illustrate the importance and prominence of the tools in Chapter 4.
To illustrate this point, I might give my students a non-hypothetical, hypothetical in which a mixed-use building is constructed in the C-3 commercial district located in the “College Hill Neighborhood Overlay District” (see zoning map and code provisions, section 29-160) in Cedar Falls, IA (a quaint city of about 40,000 and home to University of Northern Iowa). As proposed the project includes commercial uses on the first floor and 83 residential units on the upper floors. The project is proposed without parking. The question is whether the parking meets the code.
Given the materials covered in the first three chapters, students should be able to figure out that pursuant to section 29-160(g)(2) of the code, C-3 districts in the overlay district do not require parking. Thus, parking for the project should satisfy the code.
Now, we can start to explore the importance of private contractual arrangements. Notwithstanding compliance with the zoning, this particular project was re-negotiated by city staff until the developer included 65 parking slots. The revised parking was approved by the planning and zoning commission.
Newspaper articles discussing the Council hearing report many fascinating quotes from those present. One, however, from the developer’s attorney is particularly on-point:
The fact is the code allows this project to occur without any parking. The applicant has tried to work with staff and tried to address some of the concerns of neighbors and this commission and has added 65 spaces to the project.
Council, however, denied the project finding the parking was still unsuitable. Overall, I think this problem provides a good opportunity to discuss the importance of the variety of tools in Chapter 4 that allow local governments and developers to negotiate to meet specific needs and concerns beyond the zoning code requirements. Further, it illustrates the dual tracks of zoning and the land use tools and the importance of negotiating in a system of “contract transformation.”
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