Associate Dean Donald Kochan’s article “
A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective
” was recently published in the
Michigan Journal of Environmental and Administrative Law
(Volume 4, Issue 2, 2015).
Fowler Law students may recognize the dynamic circle and this descriptive framework. This publication reflects and expands upon the framework that Dean Kochan has employed in lectures in his Property II course for the past several years, where early representations of his dynamic circle were drawn on the whiteboard and explained to help students understand and synthesize a large portion of the assigned reading materials in that course.
Abstract:
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control (boxes 0-3 above): (0) no controls, or the state of nature; (1) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (2) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (3) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.
Read the full article
Donald J. Kochan
is the Associate Dean for Research & Faculty Development and Professor of Law at Chapman University Dale E. Fowler School of Law. Dean Kochan has published more than 30 scholarly articles and essays in well-respected law journals. His work has been cited in more than 250 published law review articles, and his articles have been downloaded more than 10,000 times from SSRN and BePress. Among his numerous activities, Dean Kochan currently is a Contributing Editor of the
Keeping Current-Property
section in PROBATE & PROPERTY, the bi-monthly magazine of the Real Property, Trust & Estate Law Section of the American Bar Association, and serves as the Secretary for the Section on Property Law for the Association of American Law Schools. Dean Kochan teaches Property I & II and Administrative Law, among other courses.
See more of Dean Kochan’s writings
