chevron-down Created with Sketch Beta.
November 08, 2023 Feature

For Decades I Asked Dan to Serve, and He Always Said Yes

Frank Schnidman

I. Opening Comment

Dan Mandelker has had a unique relationship with each author in this Festschrift volume of The Urban Lawyer. But for all of us, a common factor has been that Dan has made each of us feel that we had a special friendship with him. My unique relationship with him is that for forty-five years I have asked Dan to serve as a faculty member on panels, seminars, or conferences that I have organized—and he always said, “Yes.”

I write this brief article to memorialize the significant impact on the legal and planning professions that Dan had and continues to have with his effective presentations and his invaluable course materials in all these seminars and conferences. During my career, I have had the opportunity to plan and organize more than 200 panels, seminars, and conferences all over the United States and in Asia and Europe. I have had the opportunity to personally introduce Dan to thousands of attorneys and planners in more than two dozen panels, seminars, and conferences. For me, Dan has travelled to Boston, Massachusetts; Boulder, Colorado; Cambridge, Massachusetts; Chicago, Illinois; Coronado, California; Fort Lauderdale, Florida; Kansas City, Missouri; Miami, Florida; San Diego, California; San Francisco, California; Santa Fe, New Mexico; and Seattle, Washington, among other locations, and most recently he has participated in these events virtually.

These participants have benefited from Dan’s wisdom and understanding of how to balance the legal rights and responsibilities of those facing the myriad of land use planning and regulation issues, which are also discussed in his many publications, such as Understanding Urban Renewal,1 The Zoning Dilemma,2 Planning and Control of Land Development,3 Land Use Law,4 Federal Land Use Law,5 and Environmental Protection: Law and Policy.6

II. In the Beginning

I first met Dan Mandelker in 1972 when he served as a consultant to the New York State Temporary Commission on the Powers of Local Government. Dan was addressing the issue of land-use policy, including planning and land-use regulations. At that time, I was the Research Director of the New York State Joint Legislative Committee on Metropolitan and Regional Areas Study, and we were working with the Planning Law Revision Commission report and drafting comprehensive legislation to revise the General Municipal Law, the General City Law, the Town Law, and the Village Law to update New York’s planning and land-use regulation. In preparing “Volume One-Land Use Control: Modern Techniques for Modern Problems” in the four volume series on “Coordinating Governments through Regionalsim and Reform,”7 we relied upon a number of of publications and reports written by Dan Mandelker. Seminal to our preparation of Senate Bill N. 5324-A of 1971, the Planned Unit Development Bill (that ultimately passed in 1973) was Dan Mandelker’s 1966 “Controlling Planned Residential Developments.”8

The following year, I recall meeting Dan in New York City at a bar association meeting, where one of the sessions we likely both attended was conducted by an attorney named Robert H. Freilich, who was speaking about the new timed-phased development control decision in Golden v. Planning Board of the Town of Ramapo.9

III. Asking Dan to Lecture

My first ask of Dan was for October 1977. I was serving as the co-chair of the American Law Institute-American Bar Association (ALI-ABA) Land Use Litigation Continuing Legal Education (CLE) program with Richard Babcock, held in Kansas City, Missouri. Dick and I were putting together a panel on “The Use of the Comprehensive Plan in Zoning Litigation,” and I asked Dan to be on that panel. Attachment 1 to this article is a copy of the two-page promotional brochure for that 1977 program, and, you will notice that in addition to Dan, Arden H. Rathkopf, Norman Williams, and California Supreme Court Justice Stanley Mosk were also on the program.

My next request of Dan was in 1979, asking him to join a Transferable Development Rights (TDR) study group that the Lincoln Institute of Land Policy in Cambridge, Massachusetts, asked me to organize. I had written a law review article on TDRs in the Land and Water Law Review at the University of Wyoming in 197610 and modified it for the TDR chapter in Don Hagman’s Windfalls for Wipeouts.11 After that, I wrote several short TDR articles and a series of presentations in numerous cities all over the United States. The TDR Study Group I organized had several sessions, with the goal of educating the participants to help spread up-to-date information and the latest efforts at ordinance preparation and regulations.

Attachment 2 to this article features a picture of the Study Group members, among them Dan as well as Judge Charles D. Breitel, Richard F. Babcock, Professor Orlando Delogu, Professor John J. Costonis, Professor Gideon Kanner, Professor A. Dan Tarlock, Professor Charles M. Haar, Joe Bodovitz, Norman Marcus, and Professor Donald G. Hagman.

My next ask of Dan was in June 1984. I had been the moving force in convincing Dick Babcock to write a sequel to his 1966 work, The Zoning Game,12 and he conditioned his acceptance on me (1) raising financial support for travel and clerical assistance; (2) agreeing to Charles L. Siemon as co-author; (3) organizing a review session of the draft manuscript; (4) serving as editor; and (5) gently pushing the process along. I agreed to all the conditions, and by June 1984 the draft manuscript for The Zoning Game-Revisited was ready for review.

Attachment 3 to this article presents a picture of the review group for the draft manuscript of The Zoning Game-Revisited.13 It should be noted that the entire two-day discussion, held from June 13 to 14, 1984, was convened at an amphitheater classroom at the Massachusetts Institute of Technology (MIT) and was videotaped. Appearing in the picture are Professor Gideon Kanner, Dennis J. Getman, John J. Delaney, Professor George Lefcoe, Charles L. Siemon, Richard F. Babcock, Neal R. Peirce, B. Budd Chavooshian, Robert T. Nahas, Professor Daniel R. Mandelker, Malcolm Misuraca, Professor Robert H. Freilich, Robert M. O’Donnell, Stanley D. Abrams, Professor David J. Bower, Charles H. Spaulding, Donald Connors, Frank Schnidman, and Lawrence S. Bacow. Arden H. Rathkopf was scheduled to participate in this review and, as a long-time friend of Dick Babcock, was expected to be a lively discussant. I learned that Arden passed away the day before the session and waited until the event concluded to announce his death following a short illness. Attachment 4 to this article features a picture from the manuscript review panel— “Findings from an Academic Perspective”—and it includes Professors Kanner, Lefcoe and Mandelker.

Beginning in 1985, Dan began serving as faculty on the ALI-ABA Land Use Institute and others of my seminars and conferences for the next thirty-eight years. His presentations and detailed course materials included a vast array of topics. This list highlights a sample of them:

  • The Taking Issue from Eminent Domain and Inverse Condemnation Perspectives.
  • Current Issues in Land Use: Special Districts.
  • Update on Environmental Impact Statements.
  • Is the Burden of Proof Changing in Land-Use Cases?
  • The Nature of Land-Use Proceedings: Legislative, Adjudicatory, or Administrative?
  • Update on Civil Rights Actions.
  • Vested Rights/Development Agreements.
  • Update on Urban Planning: Urban Design and the Future of Zoning.
  • Overview of Federal Activity Affecting Land-Use Planning and Development.
  • Federal, State, and Local Efforts at Regulatory Reform.
  • Property Rights and the Constitution—The National Perspective: The Supreme Court Action and Congressional Reaction.
  • Three Decades of Growth Management: Was It “Dumb Growth”?
  • Update on Locally Unwanted Land Uses (LULUs).
  • Update on Land Use and the First Amendment.
  • Update: First Amendment Land-Use Issues Signs and Sex (Dan took Signs, and Dwight Merriam took Sex.)
  • Update: The Takings Issue and Equal Protection.
  • Moratoria and Temporary Takings.
  • Permitting a New Urbanism Project.
  • American Planning Association (APA) Smart Growth Project—Policy and Legislative Issues.
  • Religious Land Use and RLUIPA.
  • APA Smart Growth Project: The Growing Smart Legislative Guidebook.
  • Using Federal Laws and Regulations to Control Local Land Use.
  • Update on Vested Rights.
  • Discretionary Review: Mistakes Made and Lessons Learned.
  • The 2005 U.S. Supreme Court Decisions: Kelo, Lingle, and San Remo Hotel.
  • Street Graphic Ordinances.
  • Section 1983 of the Civil Rights Act and Land Use.
  • Update on Litigation: Choice of Forum—Federal or State?
  • Permitting the Master Planned Community.
  • Update on Master Planned Communities.
  • Consistency of Zoning with the Comprehensive Plan.
  • History and Update on Affordable Housing.

And, his regular co-panelists included Stanley D. Abrams, Virginia Albrecht, Gus Bauman, Michael Berger, Kenneth Bley, Fred P. Bosselman, John M. DeGrove, John J. Delaney, Robert Freilich, Charles M. Haar, Judge Glenn Harrell, Gideon Kanner, Wendie Kellington, Robert McMurry, Dwight Merriam, James F. Murley, Deborah Rosenthal, Patricia Salkin, Frank Schnidman, Julie Tappendorf, Theodore C. Taub, and Rufus C. Young, Jr.

One presentation that Dan is very pleased with, and very proud of, is his August 27, 2004, Faculty Keynote Address in Boston, Massachusetts at the Twentieth Annual ALI-ABA Land Use Institute. His presentation, “Zoning—What Is in Its Future?” was recorded.14

IV. Conclusion

As I did the research for this article, memories returned, and I realized that Dan touched so many areas of my professional life. Yes, we did numerous panels, seminars, and conferences together, and, as I reflected on the numbers, I realized that additionally we served together on numerous programs for other organizations, including ABA, APA, the Urban Land Institute (ULI), Florida State University, and the University of California, San Diego. I recall that our first appearance together was at a 1975 University of California, Berkeley, Department of Urban and Regional Planning Extension Summer Course on “Alternatives to Zoning: Innovative Techniques in Public Agencies.” And some of the events for other organizations led to audio tapes or published articles. For example, the State University of New York College of Environmental Science and Forestry held a conference on “The Severe Restriction of Development” in Syracuse, N.Y. in June 1977 and Dan and I both spoke and and delivered papers. SUNY later pubished the proceedings and papers as Robert J. Bartels, Robert D. Hennigan and Robert M.L. Bellandi, eds., “The Severe Restriction of Development” 1977.That was the first time Dan and I had articles published together. Also, ULI convened a seminar on regulatory simplification in February 1978, and Dan and I were participants. Out of that seminar, “Thirteen Perspectives on Regulatory Simplification”15 was published in 1979. And, ULI and the ABA Division of Professional Education jointly sponored a seminar on “Real Estate Development and the Law in the 1980s” at The Mayflower Hotel in Washington, D.C. March 7-8, 1983. Dan spoke on ‘Land Use Takings: The Compensation Issue” and I spoke on “Tips on Representing a Developer.” After the seminar, speakers submitted papers, and they were published in Rachelle L.Levitt and Azike A. Ntepe, eds.,Real Estate Development and the Law in the 1980s” (Urban Land Institute, Washington, D.C. March 1983). “Affordable Housing for the ‘80s: A Conflict of Rights,” was a conference on the recommendations of the President’s Commission on Housing, co-sponsored by the University of San Diego School of Law and the National Association of Home Builders March 29-30 1985. Dan spoke on the ”Legal Aspects of the Vital and Pressing Governmental Standard,” and I spoke on the “Environmental and Social Aspects of the Vital and Pressing Standard.” And, there were many other seminar and conference joint participation. Our latest collaboration evolved from a four-part virtual seminar series on Affordable Housing for the ABA State and Local Government Law Section in January 2021. Following those seminars, Dan and I collaborated with Peter Buchsbaum and Michael Allan Wolf to write A Call for Action: Renewing the Federal Government’s Commitment to the Construction of New Affordable Housing for the Journal of Affordable Housing.16

So, to my friend, Daniel R. Mandelker, who has always been a motivational speaker, passionate about his subject matter, whose depth of knowledge and historical perspective is unmatched among our peers, whose’s published scholarship helped shape a half century of land use law, and whose continued friendship and participation in so many of my panels, seminars, and conferences is something for which I will forever be grateful: Thank you, Dan.

Attachments

Download attachments

Endnotes

1. Daniel R. Mandelker, Understanding Urban Renewal: History Forgotten (Wash. Univ. Sch. of L., Legal Studies Research Paper Series No. 22-10-01, 2022).

2. Daniel R. Mandelker, The Zoning Dilemma (1972).

3. Daniel R. Mandelker, et al., Planning and Control of Land Development: Cases and Materials (10th ed. 2020) (including a 2021 supplement).

4. Daniel R. Mandelker, et al., Land Use Law (6th ed. 2022).

5. Daniel R. Mandelker, et al., Federal Land Use Law: Limitations, Procedures, Remedies (1986) (including a 2002 supplement).

6. Daniel R. Mandelker, et al., Environmental Protection: Law and Policy (8th ed. 2019). In addition to these publications, Dan also authored or co-authored dozens of law review articles that critically analyzed issues and options available to public and private attorneys as they faced the challenges of appropriate regulation of development. One of my favoraites is Daniel R.Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 889 (1976). In fact, when I produced two volumes of edited articles for ULI—Management & Control of Growth: Techniques in Appplication (1978) and Mnagement & Control of Growth: Updating the Law (1980), I included edited excerpts from that law review article in both volumes.

7. Joint Legislative Committee Metropolitan and Regional Areas Study Report for 1969–1971 in Four Volumes, Legislative Document (1971)-Number 18

8. Daniel R. Mandelker, Controlling Planned Residential Developments, American Society of Planning Officials (1966).

9. Golden v. Plan. Bd. of Town of Ramapo, 285 N.E.2d 291 (N.Y. 1972).

10. Frank Schnidman, Transferable Development Rights: An Idea in Search of Implementation, 11 Land & Water L. Rev. 339 (1976).

11. Frank Schnidman, Transferable Development Rights, in Windfalls for Wipeouts: Land Value Capture and Compensation (Donald G. Hagman & Dean J. Misczynski eds., 1978).

12. Richard F. Babcock, The Zoning Game: Municipal Practices and Policies (1996). For those interested in additional information about the genesis of the 1966 The Zoning Game and the concurrent American Law Institute’s A Model Land Development Code, see Frank Schnidman, A Little Book and a Big Study, 60 Plan. & Env’t L. 7 (2008).

13. Richard F. Babcock & Charles L. Siemon, The Zoning Game-Revisited (1985).

14. Dan Mandelker, Zoning—What Is in Its Future?, 20th Annual ALI-ABA Land Use Inst. (2004), https://players.brightcove.net/1866680404001/default_default/index.html?videoId=6331764194112.

15. Urban Land Inst., Thirteen Perspectives on Regulatory Simplification (Annette Kolis ed., 1979).

16. Peter Buchsbaum, Daniel Mandelker, Frank Schnidman & Michael Allen Wolf, A Call for Action: Renewing the Federal Government’s Commitment to the Construction of New Affordable Housing, 30 J. Affordable Hous. & Cmty. Dev. L. 117 (2021).

Entity:
Topic:
The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Frank Schnidman

Frank Schnidman is the former Florida Atlantic University (FAU) Distinguished Professor of Urban and Regional Planning and the former John M. DeGrove Eminent Scholar Chair in Growth Management and Development at FAU. He has taught at several law and planning schools during his academic career, including as Professor and Director of the Real Property Development LL.M. program at the University of Miami School of Law and as a Visiting Scholar at Harvard Law School for two years. He is an attorney admitted to practice in California, Florida, New York, and the District of Columbia. Schnidman has also been a friend of Dan Mandelker for forty-eight years.