Monday, April 2, 2018
Patricia Salkin 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 Patricia Salkin
Rounding out new ideas in approaching the material in Chapter 4 as previously posted by my co-authors Stephen, John and Jonathan, one way to look at the chapter is from the perspective that everything is negotiable. Yes, municipal land use regulations may include subdivision regulations that must be followed, but at the end of the day, developers and applicants are looking to get to yes on their projects. Everything in this chapter ties back to the discussion in Chapter 2 and my August 2017 post about the economics of land use regulation. The bottom line is that applicants want their projects to be approved and the community wants certain protections from quality of life (tax burden, jobs, public infrastructure, affordable housing, etc) to the environment.
Taken in this context, we can ask our students about conditions the government places on subdivision approvals. Some are grounded in statutory authority and some are evolved from the common law. For example, from statute we see the room for design flexibility and negotiation in conservation and/or cluster subdivisions. In some states, like New Jersey, the applicant may choose to propose the cluster to help accomplish a community goal, and in other states like New York, the locality may require the submission of a cluster plat as part of the process. Discussing the economic and conservation benefits of subdivision design helps students to better grasp the benefits of more compact development as opposed to sprawl since it comes at a financial savings in infrastructure costs (e.g., less asphalt for one thing) and community amenities in terms of land left undisturbed (e.g., not physically built) for the aesthetic and environmental benefits.
The chapter then moves to a discussion of development agreements and community benefits agreements (CBAs). This creative combination of statutory authority (minority of states have development agreement statutes) and common law (CBAs are based in private contract law) offers an opportunity for much policy discussion and small group skill development around negotiation and drafting of agreements. In prior years I tended to focus on the promise of development agreements as there seemed to be a trend towards statutory authorization. However, it is still not the majority view. More recently, I have emphasized the value of the CBAs. One key difference between the two is that the government is a party to a development agreement, but the government is not typically a party to a CBA, which is a private contract between the project sponsor and the community stakeholders. The government need not recognize or give credence to a CBA. For students who might not yet have taken classes in negotiation and/or mediation, the CBA introduces students to the concepts of finding out what each party wants or needs in order to get to yes. It also provides a good opportunity to review 1L contracts issues (e.g., what is the bargained for consideration since the final project approval rests with the government who is not a party to the CBA; who has authority to enter into a binding contract for the neighborhood; who can enforce the contract; and what remedies are available for breach).
There is a wealth of information about CBAs developed in the last decade on the Community Benefits Blog, and although it has not been updated in a while, the information is still valuable. I understand plans are underway to provide more current content. A more recent index was prepared by The Public Law Center at Tulane and it can be accessed here.
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