The Urban Lawyer

From the Ground Up: Unshared Assumptions in Law and Planning1

by Deborah M. Rosenthal, FAICP, JD
Construction Worker

Construction Worker

Deborah M. Rosenthal, FAICP, JD, is a partner at FitzGerald Yap Kreditor, LLP, in Irvine, California, where she devotes her practice to land use and environmental law and litigation. She works extensively with land use and environmental issues in California, including wetlands, endangered species, takings, historic preservation, mitigation banking, and coastal issues.


 

FIFTY-TWO YEARS AGO, LAND USE ATTORNEY RICHARD F. BABCOCK wrote in The Zoning Game that “no one is enthusiastic about zoning except the people.”1 While the people may have clasped zoning to their collective bosom as part of their American birthright, not so the two major professions tasked with implementing zoning at the local level. For both professions, zoning is more often than not treated as the bastard child of an unholy union of politics and private property, with neither taking responsibility for its effects, although both attempting to control its outcomes. The only thing the two professions appear to dislike more than zoning, their calling card in most communities, is each other.

As a planner and lawyer, this leaves me in an anomalous, even schizophrenic, position. I am equally entrenched in two professions with different world views, different goals and, even, as I want to discuss here today, the misunderstandings that occur when two professions try to function in the same arena unconsciously using different definitions of the same terms. The invitation to give this address has given me an opportunity to re-examine how and why I ended up at the intersection of law and planning almost 40 years ago as a very young, impressionable, and inquisitive news reporter in Oklahoma. Even the way I phrase that question reveals my hybrid professional training. I have discovered that as a planner I am most interested in the “why” — how events come to unfold and the reasons or policies behind zoning and other land use regulations. For the planner in me, understanding the goal is essential to achieving it. I find that most lawyers are satisfied knowing the “what” — defining the rules without needing to understand how they fit in the larger framework. It is also the difference between seeing oneself as a participant with a stake in achieving a better future, as opposed to a champion in a joust over something that has already happened.

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