Our paths crossed again later at ABA State and Local Government Law Section meetings, where Professor Mandelker lead the Joint Committee on Land Use Procedures and Appeals from 2006 to 2008. His work contributed to the development and adoption of a Model Statute on Local Land Use Procedures, advanced jointly by ABA’s State and Local Government Law and Administrative Law Sections and co-sponsored by the Real Property Law Section and the Government and Public Sector Lawyers Division. Our service also overlapped at the American Planning Association, including membership on that organization’s Amicus Curiae Committee and our work on the Growing Smart Legislative Guidebook. In all of these situations, professional titles aside, I was the observant student, listening to what Professor Mandelker had to say and how he said it, which shaped the manner in which I analyzed complex land-use challenges and modeled how creative problem solving could be brought to the matter at hand.
Although I consider myself one of the lucky ones who had the privilege of working with and learning from Professor Daniel Mandelker, his former law school students also benefitted from his passion and his desire to help launch the careers of countless new land-use lawyers, some of whom have participated in this Festschrift. Professor Mandelker has inspired his students and has actively created opportunities for interested students to engage in land-use-related research and, in a number of cases, to publish their work as law students.
I had the honor of being one of the closing speakers at the September 2022 symposium honoring Professor Mandelker. A sampling of words that appropriately described him included the following: smart, principled, passionate, generous, kind, mentor, and friend. While many in academia look to someone’s erudite scholarship—that often focuses on new legal theories, one of the reasons that Professor Mandelker’s work has been so important is that it is relevant and practical. In reviewing his posted list of select publications and activities, it seems that there is nothing he has not done. He has given numerous speeches and testimony before Congress, a Presidential Commission, the U.S. Council on Environmental Quality, White House working groups, and state and local governments. There is perhaps no greater way to influence the future balance of land uses and preservation than by speaking to the lawmakers and regulators who are responsible setting forth statutory and regulatory agendas.
Professor Mandelker has been committed to teaching and training beyond his students in his law classes. By making time to publish with and present for a variety of organizations that serve members who work in a wide range of land-use planning and decisionmaking roles, Professor Mandelker’s perfected art of teaching has had power and reach across the United States. For example, he has contributed to the work of the International Municipal Lawyers Association (IMLA), the Institute for Local Government Studies at the Center for American and International Law, the National Association of Environmental Professionals, the Lincoln Institute of Land Policy, the Urban Land Institute, the Rocky Mountain Land Use Institute, the American Planning Association, and the American Bar Association. Considering all of these activities, the profound impact of his career can be extrapolated to the tens of thousands of people he has taught and presented to, plus those who have read and used his work. It is true that it is simply impossible to quantify the number of people, neighborhoods, and communities who have been positively impacted because of Professor Mandelker’s work.
Another measure of the impact of one’s work is to determine whether it has had any influence on the courts. When searching the Westlaw databases for case law referencing Professor Mandelker’s work, I found a total of sixty-five results, including citations in six federal circuit court of appeal cases. The Second Circuit cited to his book, Environmental Protection: Law and Policy (2d ed. 1990), his Land Use Law book (5th ed. 2003), and his National Environmental Policy Act (NEPA) Law and Litigation book. The Fourth Circuit referenced the second edition of his Land Use Law book and his NEPA Law and Litigation treatise. The Fifth and Ninth Circuits cited to his NEPA Law and Litigation treatise, and the Ninth Circuit also referenced the fourth edition of his Land Use Law book. The Seven Circuit relied on the fifth edition of his Land Use Law book, and the Tenth Circuit also relied on his NEPA Law and Litigation book.
In addition, Professor Mandelker has been actively cited at the state level by the highest court in ten states, plus the Commonwealth of Puerto Rico. The Wisconsin Supreme Court has cited his work in multiple cases, as has Montana. He has been cited by the high courts in Colorado, Florida, Maryland, Illinois, Indiana, Washington, North Carolina, Hawaii, and Louisiana and in many appellate court decisions in those and other states, as well as federal district court opinions across the country.
A number of Professor Mandelker’s books have been the subject of published reviews. It is instructive to consider some of critiques of these contributions. University of California, Davis Law Professor Daniel Fessler reviewed his1971 book, called The Zoning Dilemma, writing, “As a student of urban growth politics and multi-faceted economics and private land use decision- making, he finds in the ambitious rhetoric of the ‘comprehensive plan’ a promise that exceeds the goal-defining and development-directing capacities of the municipal sovereign.” Among the many themes of the book, Professor Mandelker, while embracing zoning regulation, worried about its impact upon and discrimination against the economically disadvantaged (note this was back in 1971, when Professor Mandelker was ahead of his time in challenging readers to recognize certain injustices when zoning was used in the wrong way). Professor Fessler points out, “The overriding preference for the single-family dwelling unit and the tendency to concentrate and segregate high intense uses from the environs intended for the advantaged threaten to imprison the urban poor.” Professor Dan Tarlock also reviewed this book in 1972 and began, “For many years Professor Mandelker has ranked among the most energetic scholars serving the law-in-action tradition of the University of Wisconsin.” Professor Tarlock described how Dan set out to provide an empirical study to determine, primarily on a formal record, whether zoning agency decisions were consistent with a comprehensive plan. Of note, back in 1972 when Professor Mandelker was working on the book, he used a computer program to help aid the research and analysis. His use of technology back then was ahead of the time, and he continued to explore ways to effectively use the Internet and a website. Still today, he actively updates a land-use-law website hosted by the Washington University School of Law where, among other things, he posts summaries of significant cases and makes available free publications that he has authored on various land-use topics. In addition, Professor Mandelker has shared a fraction of his work on the Social Sciences Research Network (SSRN), and, with only twenty-one articles listed, his work has over 1,600 downloads.
Brooklyn Law professor Bailey Kunlin reviewed Professor Mandelker’s 1971 book, Environmental Equity: A Regulatory Challenge, summing up its message: “Environment and Equity are an indeed regulatory challenges, they are fraught with unresolved conflicts which will doubtlessly get worse. We must go on with solving them.” This is a theme to which Professor Mandelker has dedicated a good portion of his career: solving problems and pursuing equity, both for environment and humanity. Douglas Kmiec also reviewed this book, noting that Professor Mandelker “departs from other environmental advocates at the time by stating his interest in the environment as a subjective value preference that should be accorded absolute protection against other interests in energy, housing, industrial productivity and environment.” He notes the central thesis: “Environmental values are subjective incapable of objective proof.”
In the 1989 Naval Law Review, Lieutenant Daniel Rosenberg published a review of Professor Mandelker’s 1984 book, NEPA Law Litigation. Rosenberg explained, by example, the practical approach and usefulness of the book to—as in his case—anyone dealing with the environmental consequences of military activities. In 2010, Dwight Miriam reviewed Designing Planned Communities and noted that Dan Mandelker began this work because he was troubled by hostile court decisions holding that standards for planned communities were unconstitutionally vague; yet, Dan found, through court decisions, support for comprehensive plans that can enunciate conceptual design indicators without having to articulate specific and too narrow design standards for planned communities.
In 1998, Professor Mandelker was interviewed for Planning Magazine. The final question of that interview was: “Do you have thoughts on retirement?” Twenty-four years ago, he responded, “Never.” Colleagues and admirers of Professor Mandelker hope that “Never” remains true because the field continually benefits from his intellectual wisdom and insights. The American Planning Association also asked Professor Mandelker, “If you could change one thing about planning law in the United States what would it be?” He responded, “I would make planning mandatory, and I would require zoning to be consistent with the plan.” True to form, this answer is consistent with a career of advocacy about the importance of the comprehensive plan as the basis of land use and zoning regulation and decision making.
