Comments and Best Student Answers

ZONING ASSIGNMENT:

COMMENTS AND BEST STUDENT ANSWERS

As always, I had fun reading these and seeing what the zoning boards are up to. Collectively, you did very nice work on this assignment, although a few of you got penalized for not following instructions (generally for providing substantially less than the five separate paragraphs of impressions I requested.) I chose the model answers from among quite a few examples of good work for variety, clarity, and thoughtfulness.

Zoning Terminology: In most zoning proceedings, the only real party is the “applicant,” the landowner seeking the variance or permit. Neighbors who appear to provide input are “opponents” or “supporters.” In the usual case, nobody has filed a civil lawsuit, so none of the players are “plaintiffs” or “defendants.” The tribunal is usually called a “Board” of some kind; it is not a court. The Board is made up of “Board members,” not “judges” or “justices.” Some students used inappropriate terminology. Try to learn the appropriate technical terms when you are learning about a new type of proceeding.

“Variances” are different from “permits.” When landowners wish to use their lots in ways forbidden by existing zoning, they must get a “variance.” However, for many types of uses that zoning codes allow, landowners still must get permission from the relevant board to develop the land in particular ways or to operate certain types of facilities. For example, the zoning may allow an owner to operate a day-care center on a particular parcel, if the owner gets prior approval from the zoning board. These prior approvals are generally called “permits.” The standards for receiving a permit are much less stringent than the standards for obtaining a variance because the zoning regulations already allow for the type of use in question.

Descriptions: Lawyers spend a great deal of time describing materials and events to other people: clients, supervising attorneys, legal assistants, opposing counsel, government officials, judges. You will need to train yourself to make your descriptions accessible to your readers/listeners in two different ways. First, your description must be accessible to a person who didn’t see the documents or events you are describing. Introduce characters and concepts clearly. Explain who is doing what. Present information in an order that makes its relevance apparent. Here, for example, some of you failed to explain at the outset what precisely the applicant wanted, leaving the reader unsure of the relevance of the facts and arguments the parties presented. If your readers/listeners only can understand your description of a document or event if they shared the experience with you, they will see no need to pay you to do it for them.

Second, you must use language that your reader/listener understands. Here, the instructions said to write in terms accessible to a lay client. In practice, you can talk with your clients to determine how sophisticated they are and adjust your descriptions accordingly. Absent any information about the client (as with this assignment), you cannot assume any familiarity with the relevant procedures and terms of art. Thus, you must either avoid or translate technical terms. If you had a client new to the zoning process, you might well have to define basic terms like “variance,” as some students sensibly did. Err on the side of too much explanation. If your clients can’t understand you, you will not be able to represent them effectively.

Your organizational structure also affects the clarity and effectiveness of your description. Use formatting to highlight the relationships between the various elements of the presentation. For example, headings and bullet points both provide a reader with strong visual clues about how different points fit together. In addition, choose a structure that lays out material efficiently. Many of you provided accounts that were nearly transcripts, listing each of the Board’s questions followed by each of the applicant’s answers. A more concise presentation might begin, “In response the Board’s questions about the operation of the facility, the applicant explained ….”

Impressions: Your impressions, although often interesting, tended to be a bit more case specific than I had hoped. I wanted you to think about whether the zoning proceeding you saw seemed a good way to resolve land use disputes in general. In addition, I particularly looked for papers that addressed counter-arguments to their own major points. A number of you made some interesting points but showed no evidence of having considered difficulties with your own positions.

Another common problem was stating general impressions without supporting evidence or explanation. For example, several students made statements like, “I thought that the lawyer for [one applicant] was ineffective.” By itself, this sentence is not very informative. What specific actions did the attorney take that made him ineffective? I ask you to critique the zoning process in part to make you think about why things you observe might be (in)effective. Get into the habit of defending your opinions more thoroughly. It will serve you well as a lawyer (and not incidentally, on exams).

While some of you provided conclusions without evidence, others provided evidence without conclusions. In particular, many of you carefully described the role of the attorneys or some of the undiscussed externalities, but did not explain the significance of these observations. An important part of making legal arguments is suggesting how a specific case sheds light on how the whole system works. Get into the habit of asking yourself what generalizations you might draw from individual facts.

Some of you seemed a little confused about the meaning of “externalities,” which are costs or benefits of an event or transaction that the relevant decision-makers do not consider. If the Board takes a cost or benefit into account in its deliberations, that cost or benefit is not “external” to the process. Thus, I hoped you would focus some on potential costs and benefits that nobody raised at the hearing. To be fair, however, zoning boards often discuss costs and benefits that are external to the landowners’ decisions about how to use their land. In these instances, the Board “internalizes” these externalities by forcing the landowner to address them in order to receive a permit or variance.

A number of you addressed the Goldstein materials by doing point by point comparisons of the Vallejo case with the case you witnessed. While this demonstrates that you did the reading, it doesn’t require much thought to note, e.g., that in the readings, many neighbors opposed the variance but in the case you saw, nobody did. In these memos, I hoped for (and got from some of you) a more general comparison of how well the zoning system seemed to be working and why.

Finally, many of you reached relatively rosy conclusions about the efficacy of zoning that seemed to ignore some of your own (less positive) observations and impressions. Try to make your discussions internally consistent. Of course you can conclude that zoning is a pretty good system even if it has some problems. However, you should make clear to the reader that you see the tension between your positive conclusion and your negative observations and explain why the good outweighs the bad (or vice-versa). A useful paragraph in this vein might begin, “Despite these problems, zoning probably is the best mechanism for addressing many land use issues because ….”

Miscellaneous Writing Issues: Collectively, your writing on this assignment was quite uneven. I made more grammatical and stylistic changes than I would have expected here, and many fewer than I could have. If you don't understand a comment or correction, please see me; I will be happy to explain it. In addition, most of your papers would have benefited from additional proofreading. Some specifics:

• Many of you overuse passive voice. In these assignments, this problem grew from the relatively minor sin of awkward wordiness into a far more serious crime: lack of clarity. When you say "An argument was made that..." or "Evidence was presented that...," you invite the crucial question, "By whom?" Inquiring minds want to know which person on which side presented the evidence or made the argument. Tell us.

• Write more concisely. For example, phrases like, "the fact that" add nothing. "He testified to the fact that traffic problems would result if the zoning change was made," should be, "He testified that the zoning change would cause traffic problems." A judge I knew said that one third of the words people wrote were unnecessary. If you assume he is right and remove a third of your words, I guarantee your writing will be clearer.

• Describe completed hearings in past tense. By convention, judges writing opinions use present tense to describe the parties’ arguments and their own responses. “Appellants contend that …, but we believe …” However, this convention does not extend to descriptions written by attorneys. When describing a reported case in a brief or memo, you would say, “Appellants contended that …, but the court believed that …” You should describe a zoning hearing in a similar way.

• Use parallel structure to describe items that make up a list or related set. In other words, if the first item on the list is a full sentence, all the items should be full sentences. If the first item is a verb phrase, all should be verb phrases. Compare:

The meeting was unfair in three ways: the chair interrupted witnesses constantly; bias against applicants who couldn’t speak English well; and misunderstanding overly complex rules. [Not parallel.]

The meeting was unfair in three ways: the chair interrupted witnesses constantly; several board members displayed bias against applicants who couldn’t speak English well; and applicants had trouble understanding overly complex rules. [Parallel; full sentences]

The meeting was unfair because applicants faced constant interruptions by the chair, experienced bias if they couldn’t speak English well, and misunderstood overly complex rules. [Parallel; verb phrases.]

• A Board is “it” not “they.”

• Lawyers representing parties are “counsel.” Because it is a collective noun, you do not say “counsels” to indicate more than one lawyer. Groups of people empowered to decide or investigate things are “councils.” Thus, e.g., the lawyers for Philadelphia’s governing legislative body are “counsel for the Council.”

• Avoid using “said” and “such” and “above” as adjectives referencing nouns you have mentioned earlier in your presentation. Such usages make said presentation stilted and harder to follow. Use “these” or “this” or even “the” to replace the above words.

• When it refers to evidence given by witnesses in a legal proceeding, “testimony” is a collective noun without a plural form. E.g., the neighbors’ testimony (not testimonies) was very convincing.

BEST STUDENT ANSWERS

DESCRIPTION #1

Palo Alto Planning and Transportation Commission (PTC) (2/12/03)

1. 706 and 708 Los Trancos Road, Palo Alto, California: The properties at issue in this public hearing are located at 706 ("Lot 4") and 708 ("Lot 5") Los Trancos Road, Palo Alto, California. These two lots were created in 1981 as part of the Hewlett subdivision, and are located in a relatively undeveloped area of the Palo Alto Foothills. This subdivision is zoned as Open Space ("OS"). Palo Alto Municipal Code ("PAMC") § 18.71 which governs use of OS-zoned property, and requires that all construction, improvements, and other changes to the property be subject to review and approval by the PTC, even for those uses expressly permitted for this zone.

Lots 4 and 5 each contain a single-family residence. Both lots, as well as a few other adjoining lots, are owned by Mr. and Mrs. H. Irving Grousbeck. The combined assessed value of just Lots 4 and 5, including improvements, was over $13 million in 2002.

2. The Public Hearing: The Grousbecks applied for two requests for site and design review (i.e., approval for a new or existing construction) and two requests for variance to the PTC. The applications were studied by the staff members of the City Planning Division in order to review the nature of the requests and determine their compliance with the standards set forth in the zoning statutes regarding the use of Open Space.

The City Planning staff opened the public hearing by providing a Staff Report and summarizing the applications the Grousbecks (discussed in more detail below), after which they answered questions from the PTC Commissioners. The City Planners give their final recommendation to the Commissioners that the Grousbecks' request be approved.

The owners were represented at the hearing by Bob Stoecker, John Northway, Clare Malone and Sherri Williamson of the architectural firm Stoecker & Northway. Neither Mr. Stoecker nor Ms. Williamson made a presentation to the PTC, but answered questions from the Commissioners. After additional discussion, the Commissioners voted 6-0 in favor of all of the Grousbecks' requests.

3. Variance #1 – Transfer of Impervious Coverage From Lot 5 to Lot 4: The first variance application involved the movement of a lot line, such that over 25,000 sq. ft. was transferred from Lot 5 to Lot 4. This line adjustment by itself did not entail a variance. However, a variance was needed to allow the concurrent transfer of 1,732 sq. ft. of the unused allocation of impervious surface coverage from Lot 5 to Lot 4.

Impervious surface coverage, as defined in PAMC § 18.04.030, is "the portion of land on a lot that is covered by structures, paved surfaces, uncovered porches or similar cover and is incapable of being penetrated by water under normal circumstances." Limits are usually imposed on impervious surface coverage to limit development, a particularly important issue for an Open Space zone. PAMC § 18.71.080 expressly defines that no more than 3.5% of OS-zoned lot can be impervious. However, the Grousbecks' lots and others in the Hewlett subdivision were created prior to the adoption of this ordinance. Instead of a using a percentage allocation, each lot was originally allocated a fixed amount of impervious surface coverage by means of a variance. By requesting that this allocation be changed between Lots 4 and 5, the Grousbeck therefore required a variance to be approved by the PTC.

According to the City Planner's report, the reason the Grousbecks sought approval for this variance was that they had already exceeded their impervious surface coverage allocation in Lot 4 as result of resurfacing over 1,200 sq. ft. of their driveway from pervious gravel to impervious concrete. Thus their requested transfer would allow them to keep the concrete driveway, as well as resolve the legality of other additional improvements that required more impervious coverage, such as a small addition to their house, a concrete pad for a generator, and a doghouse. All of these improvements had already been built without prior PTC approval.

Like § 302(d) of the San Francisco Planning Code relied on in the Vallejo Street variance case, PAMC § 18.90.050 sets forth certain factual conditions that must be satisfied for a variance to be granted. These conditions are 1) the existence of exceptional or extraordinary circumstances or conditions applicable to the property involved that do not generally apply to property in the same district, 2) the variance is necessary for the preservation and enjoyment of a substantial property right, and to prevent unreasonable property loss or unnecessary hardship, and 3) the variance will not be detrimental to the public health, safety, general welfare, or convenience.

To satisfy these three conditions, the Grousbecks' simply contended that 1) the original allocation of impervious coverage was made regardless of the size of the lot, 2) no new "hardship" finding was required for an amendment to an existing variance, and 3) the total allowable impervious coverage among the two lots would not change. These statements apparently satisfied the Planning Division Staff, who recommended approval of the variance to the PTC.

However, one Commissioner appeared unsatisfied with these findings, stating that the "hardship" condition did not appear to have been satisfied. He pointed out that the owners themselves had proposed the use of pervious paving stones for the driveway as an alternative if the variance were not approved. In response, Mr. Stoecker pointed out that due to the topology of the lot the driveway was the only "flat" portion of the lot adjacent to the residence. Therefore, a paving stone surface would be less desirable for "youngsters to ride tricycles or play basketball." The Commissioner disagreed, contending that this was "a minor inconvenience" in view of the variance.

At the end, the Commissioners appeared most persuaded by the view that the total amount of impervious coverage in the two lots had not changed, and hence approved the variance.

4. Variance #2 – Height of the Cyclone Fence on Lot 4: The second variance application was directed to a cyclone fence on Lot 4 that had been built to a height of eight feet, one foot higher than the maximum allowed under PAMC § 16.24.020(b)(2).