The Student’s Paper

    Many of us, I’m sure, have been the faculty advisor for a student’s independent study paper. I don’t do this often, not because I don’t like doing it, but because I have the earned reputation of being a hard grader. Over this fall, however, one of my brave students wrote a very good paper dealing with the standards associated with granting zoning variances.

    For the non-property law scholars out there, the traditional and almost universal rule is that a variance cannot be granted without a showing of a substantial hardship (or similar standard). Her paper argued that this standard was inappropriately high on the merits and is, in reality, almost universally ignored at the local level.

    When I have taught zoning in my property class, I presented the standard view fairly uncritically. It seemed easy to justify: zoning is to serve the public good and if exceptions are too easily made, it rapidly becomes a tool that serves the ones who are wise (or rich) enough to apply for a variance. Somewhat surprisingly, I’ve continued to mirror the standard line even after I started serving on my local zoning board which grants many a variance of dubious merit. I don’t think I can teach the subject the same way this year, so it is time to rebuild the material on variances.

    I have always seen independent studies as a good way of allowing a student to do in-depth research on a topic. After almost thirty years in the academy, its time to acknowledge their broader potential.

Comments

[Adam]

I am not a property law scholar, but I have seen reports of land use decisions. While in law school I researched the nature and quality of zoning and land use decision-making by local authorities for two articles written by Prof. Melvyn Durchslag: “Forgotten Federalism: The Takings Clause and Local Land Use Decisions,” Maryland Law Rev. (2000), and “Euclid v. Amber Realty Seventy-Five Years Later: This is Not Your Father’s Zoning Ordinance,” Case West. Res. Law Rev. (2001).

What I found was that there was a relatively high level of rationality to the decision-making process.

[David Bernstein]

It's really news to you that zoning boards are subject to, e.g., political influence? This is, in fact, the easiest way for a politically-connected property developer to make money. Buy a large lot zoned single family and get a variance allowing three houses on the lot. Buy a plot of land zoned residential and get permission to develop it commercially. Buy a commercial lot zoned for eight stories and get permission to put a 12-story building on it. Etc.

[Ralph D. Clifford]

No, it is not news to me that zoning boards are subject to influence. That is exactly what I always emphasized in my classes as the justification for the substantial hardship standard. What my student's paper did was to make me want to re-evaluate whether or not this standard should be relaxed. If it doesn't work, are there other reasons that suggest that it should be relaxed?

For what it's worth, I have not found that the big changes you describe are easy to obtain. Where the substantial hardship standard doesn't seem to be completely binding are on the small problems, i.e., I want my house to be 6 inches closer to the street than the rules allow.

[David Bernstein]

If it were easy, then everyone would do it. It's those who have some combination of persistence, political influence, and in-depth knowledge of how to play the game who do it. (The changing a lot zoned from single family to allow three houses happened two blocks from my house. The first two owners failed to persuade the county to allow it, but the third somehow managed.)

[Alex]

There is considerable literature on this, and the problems with the ad hoc nature of variances. Relaxing the standard would make this substantially worse.