Friday, August 5, 2022

Idaho Law hiring for a tenure-track Housing Clinic position

Hi,

The University of Idaho College of Law is hiring for a tenure-track Housing Law Clinic professor, which would be located in Boise.  I am happy to discuss with folks, in addition to the search committee director.  The announcement is below.

Housing Clinic

The University of Idaho College of Law seeks to hire a tenure-track faculty member to direct a Housing-Related Law Clinic. The successful candidate could be an entry-level Assistant Professor rank on a tenure track, or an Associate or Full Professor rank with tenure, depending on the candidate's qualifications. This position involves directing a housing-related clinic, which could include landlord-tenant, reentry, veterans, or benefits issues. The faculty member must supervise the clinic, teach one additional course on a related subject, mentor and advise students, produce scholarship, and conduct community outreach. Applicants must have a J.D. from an accredited school or the equivalent; a distinguished academic record; five years of post-J.D. practice or clerking experience; active membership in at least one state bar and ability to obtain Idaho State Bar admission as a supervising attorney by November 1, 2023; a record or the promise of teaching and scholarly excellence. Preferred qualifications include more than two years of post-J.D. practice or full-time teaching experience in the law clinic setting and/or serving clients in housing-related matters. This position is located in Boise. Interested candidates should submit an application, including a statement of demonstrated commitment to fostering an inclusive community, at https://www.uidaho.edu/human-resources. Please direct questions to Samuel Newton, the search committee chair, at samnewton@uidaho.edu. Priority will be given to applications received by September 15, 2022.

August 5, 2022 | Permalink | Comments (0)

Thursday, August 4, 2022

Job Posting - Fellow in Urban Design and Housing - Yale Urban Design Workshop

JOB ANNOUNCEMENT
Fellow in Urban Design and Housing
Yale Urban Design Workshop
Note: For immediate hire
Posted July 29, 2022

Yale School of Architecture seeks applications for a Fellow in Urban Design and Housing at the Yale Urban Design Workshop, to begin immediately. Intended for an early- to mid-career urban planner, urban designer, architect, lawyer, or real estate developer interested in new, synthetic approaches to affordable housing and neighborhood development in an interdisciplinary, academic, clinical setting, the 2022 Fellow will help design, support, and coordinate the clinical activities of the Yale Urban Design Workshop (YUDW), the School of Architecture's community design center. Central to this fellowship will be support of the UDW's new affordable housing clinic, entitled Housing Connecticut: Developing Healthy and Sustainable Neighborhoods. Offered in collaboration with the School of Management, School of Law, and the Connecticut Department of Housing (DOH), this clinic will pair interdisciplinary groups of graduate students with local non-profit housing developers in Connecticut, asking them to develop novel but practical solutions to the affordable housing crisis, while also addressing other pressing neighborhood challenges, such as community health, air quality, environmental equity, or resilience. Working under the supervision of the Yale Urban Design Workshop's faculty directors and affiliates, the fellow will develop supporting research, mapping, supervise student clinical projects, engage with community members, politicians, policy makers, and local non-profits, and provide ongoing logistical and administrative support both during and after the clinic ends. It is expected that the fellow will assist in the development of one or more academic white papers on the clinic and assist in the publication of results. Clinical projects will have the opportunity for fast-track funding from DOH, and the fellow will provide ongoing implementation support to the local non-profit partners as projects progress. This may include supervising student independent studies during the spring 2023 semester. The fellow will also collaborate with UDW faculty and affiliates on independent research and writing in the areas of affordable housing, urban and neighborhood history, neighborhood development, and social and environmental equity, and will develop research on architectural clinical models in support of the development of additional UDW clinical courses and projects. In addition, there may be opportunities for the Fellow to be involved in other ongoing community-based UDW projects.

The ideal candidate will have the following qualifications: * Advanced professional degree in planning, law, management, urban design, or architecture from an outstanding program. * Minimum 3 year's professional experience in community design and/or development, neighborhood or urban planning, affordable housing, or related fields, working in particular with underserved communities. * Experience in urban research and description, including geography, history, demographics, culture and economics; publication preferred * Interest in working in an intensive academic environment with graduate students; some prior teaching experience preferred * Strong research, organizational, and interpersonal skills * Collaborative and team-oriented, while also independent and self-motivating * Strong written and communication skills in English * Experience developing maps and research using Geographic Information Systems (GIS) preferred but not required * Fluency in Spanish preferred but not required

This is a full-time position, and physical presence in New Haven is required. Evening and weekend hours may be required to attend community meetings and events. The salary for this position is $63,000, plus full Yale benefits. The fellow will be appointed at Yale at the faculty rank of Instructor with an initial appointment of one year, renewable for one additional year. The fellow will be located at the off-campus offices of the Yale Urban Design Workshop, and will be part of the larger Yale community. Letters of interest, along with resume or CV, and portfolio if applicable, should be sent to Andrei Harwell, andrei.harwell@yale.edu<mailto:andrei.harwell@yale.edu>. Review of applications will begin immediately and will continue until the position has been filled.

Anika Singh Lemar
Clinical Professor of Law | Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
T: (203) 432-4022 | F: (203) 432-1426
E: anika.lemar@yale.edu<mailto:anika.lemar@yale.edu>

August 4, 2022 | Permalink | Comments (0)

Friday, May 27, 2022

Prospects for a Unified Approach to Housing Affordability, Housing Equity, and Climate Change

I just posted on SSRN an article I wrote for the Vermont Law Review, which might be of interest to some of you.  The article is "Prospects for a Unified Approach to Housing Affordability, Housing Equity, and Climate Change," and is available here.  The abstract is below:

This symposium Article investigates competing tensions among housing activists today and proposes several solutions around which those activists could unite that may also be attractive to the development community. First, the Article defines and investigates three types of housing advocates operating today: the affordability activists, which are primarily concerned with increasing housing affordability; the equity activists, which are concerned with providing homes in areas that assist with de-concentrating poverty and its ill effects; and the environmental activists, which today focus increasingly on reducing climate change effects through land use planning. While these activists have overlapping goals, they are often at odds on policy prescriptions, which this Article analyzes. The Article then investigates how the dissonance between the housing activists can be resolved by considering development through the lens of the entity that is charged with building housing: the private developer subject to real-life market demands. Several proposals are discussed, as well as why certain fashionable concepts of the day--such as eliminating single-family districts--are unlikely to result in significant new housing production.

May 27, 2022 | Permalink | Comments (0)

Monday, April 18, 2022

April 21-22 - Zoom in to Idaho Law Review symposium on growth and development in the American West

Joins us for a discussion on growth and development in the American West!  Congratulations to Idaho Law Review symposium editors Charlotte Cunnington, Natalie Lussier, and Victoria Wright for putting together a great mix of local and national leaders.  The panels are all online, and I will be moderating the two panels on Thursday.  (And if you are an Idaho attorney, get 5.5 CLE in the process...)

Schedule and link below.

 

The Idaho Law Review presents . . .

Boomtown! Growth & A Clash of Identity in the American West

All panels will be hosted via zoom at: https://uidaho.zoom.us/s/81635495822

Thursday, April 21, 2022

Financing Growth

Time: 9:30 - 11:00 AM MT

Introductory remarks by Dean Kalb & Professor Stephen Miller

Panelists: Robert McQuade; Justin Ruen; Seth Grigg; Nicholas Warden; William Doyle

 

Growth in Other Cities & Lessons Learned

Time: 12:00 – 1:30 PM MT

Panelists: Brian Connolly; Edward Sullivan; Daniel Dansie; Thomas Dansie; Robert Liberty

Friday, April 22, 2022

Homelessness & Issues with Affordable Housing

Time: 9:30 – 11:00 AM MT

Panelists: Jodi Peterson-Stigers; Howard Belodoff; Susan Bennett

 

Eviction Moratorium: Landlord/Tenant Law & COVID

Time: 12:00 – 1:30 PM MT

Panelists: Jim Cook; Zoe Anne Olsen; Evan Stewart; Morgan DeCarl

 

Land Use Issues in Idaho

Time: 2:00 – 3:30 PM MT

Panelists: Jaap Vos; Elizabeth Koeckeritz; Meghan Sullivan Conrad

Panelist Biographies

 

FINANCING GROWTH 

Robert McQuade 

Rob McQuade serves as the General Counsel to the Association of Idaho Cities (AIC) where he provides education, training, and advocacy services to Idaho’s 199 cities. Rob has the unique perspective of practicing law at the federal, state, and local level and uses that experience to problem solve on behalf of his client.  Prior to joining AIC, he worked for the Idaho Division of Occupational and Professional Licenses where he practiced administrative law and oversaw the implementation of the Red Tape Reduction Act for 29 regulatory bodies, helping to achieve a historic reduction in Idaho’s Administrative Code.  Rob’s first exposure to municipal law was at the City of Boise, where he spent five years advising the City on a variety of matters, including land use and procurement.  After graduating from the University of Idaho, he moved to Washington, D.C., where he worked on Capitol Hill for Senator Larry Craig and the U.S. House of Representatives Committee on Veterans’ Affairs.  

Rob attended the George Mason University School of Law and the University of Baltimore School of Law, where he received his juris doctorate.  

Justin Ruen 

Justin Ruen has served as a Policy Analyst for the Association of Idaho Cities for 21 years.  He is responsible for monitoring the state policy process, reviewing bills that affect city governments, and providing resources and technical assistance to help city officials to govern and serve their communities more effectively.  

Mr. Ruen is a graduate of the University of Idaho, B.A. in Political Science, where he taught Political Science 101 while in graduate school.  

Seth Grigg 

Seth Grigg is the Executive Director for the Idaho Association of Counties, where he carries out the objectives as set by the IAC Board of Directors by providing overall strategic and operational oversight of IAC’s staff, member service programs, financial operations, and legislative advocacy. Prior to this position with the IAC, Mr. Grigg was the Executive Director for the Association of Idaho Cities and a Policy Analyst for the Idaho Association of Counties.  

Mr. Grigg holds an MPA from Boise State University. 

Nicholas Warden  

Nick Warden is an attorney at Bailey Glasser, where he predominantly practices commercial litigation, including employment litigation and complex business litigation. Prior to this position with Bailey Glasser, Mr. Warden spent three years with the Civil Litigation Division of the Idaho Office of Attorney General representing employers in cases involving claims of civil rights violations, discrimination, harassment, whistleblower claims, and wrongful discharge.

Mr. Warden received his J.D. from the University of California, Davis School of Law and B.A., Master of Science from the University of Oxford, and B.A. from the University of Southern California.  

William Doyle –   forthcoming

GROWTH IN OTHER CITIES & LESSONS LEARNED  

Brian Connolly 

Brian Connolly is an attorney at Otten, Johnson, Robinson, Neff & Ragonetti, P.C., where he practices a broad range of land use matters, including zoning compliance, rezonings and other regulatory amendments, planned unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions. Mr. Connolly serves as an adjunct professor of law at both the University of Colorado School of Law and the University of Denver Sturm College of Law, where he teaches land use planning.

Mr. Connolly holds a J.D. from the University of Michigan Law School, and a B.S. in urban and regional studies and Master of Regional Planning degrees from Cornell University. 

Edward Sullivan 

Ed Sullivan specialized in land use law for over 45 years and is now retired from practice. Before going into private practice, he served as Assistant County Counsel and County Counsel for Washington County, Oregon, and as Legal Counsel to the Governor of Oregon. Over the course of Mr. Sullivan’s career, he has taught and mentored countless law and land use planning students, as well as published a body of work that aims to explain land use law in Oregon and beyond.

Mr. Sullivan holds an L.L.M. from University College in London, a J.D. from Willamette University College of Law, a Diploma in Law from University College in Oxford, an M.A. from Portland State University and the University of Durham, and a B.A. from John’s University. 

Daniel Dansie 

Daniel Dansie is an attorney at Kirton McConkie in Salt Lake City, Utah. He is licensed to practice in Utah and Idaho and focuses his practice on real estate. For three years he practiced at Holden, Kidwell, Hahn & Crapo in Idaho Falls. He received a J.D. from the University of Utah S.J. Quinney College of Law and a B.A. from Brigham Young University. 

Thomas Dansie 

Thomas Dansie is the Director of Community Development for Springdale, Utah. Prior to this position, Mr. Dansie was a Planning Consultant for Leeds, Utah. His expertise includes land use policy analysis, ordinance development, design and development review, and public outreach. He received an M.S. from the University of Arizona and a B.S. from Brigham Young University. 

Robert Liberty 

Robert has almost forty years of experience with the design, implementation, evaluation and politics of land use and transportation plans at the local, regional, and state levels. His advice has been sought from places as different as Bozeman, Montana, and Beijing, China. Robert has a JD from Harvard Law School, an MA from Oxford University, a BA from the University of Oregon Honors College, and was a Loeb Fellow at the Graduate School of Design at Harvard. 

HOMELESSNESS & ISSUES WITH AFFORDABLE HOUSING 

Jodi Peterson-Stigers 

Jodi Peterson-Stigers is the co-director of Interfaith Sanctuary, an overnight shelter that serves 164 men, women and families with children each night in Boise. Ms. Peterson graduated from Boston University with a degree in communications and sociology and for many years worked in marketing, communications, and public relations. 

Howard Belodoff 

Howard Belodoff is the Associate Director for Idaho Legal Aid Services where he provides free civil legal representation to low-income Idahoans. Mr. Belodoff began working at Idaho Legal Aid Services after graduating law school. His cases primarily concern the civil rights of low-income persons, prison and jail inmates, adults and children who suffer from mental illness, persons who are homeless, disabled and people with HIV/AIDS, Native Americans, and farm workers. 

Mr. Belodoff has practiced advocacy work at ILAS for his entire career. He received his JD from the University of Idaho College of Law. 

Susan Bennett 

Susan Bennett is a Professor of Law Emerita at American University Washington College of Law, where she founded and directed the Community and Economic Development Law Clinic, through which students provide transactional representation to non-profit organizations, small businesses, and affordable housing cooperatives in under-served neighborhoods in D.C. and the metro area.  

She held the position of Director of Clinical Programs for the Washington College of Law from 2003 to 2006. In addition to her clinical teaching, she taught first year Property, Law and Poverty, and seminars on community development, and law and homelessness. Before coming to WCL, she specialized in housing and consumer litigation at the Maryland Legal Aid Bureau. 

Ms. Bennett holds a J.D. from Columbia University School of Law, as well as an M.A. and A.B. from Yale University. 

EVICTION MORATORIUM: LANDLORD/TENANT LAW AND COVID 

Jim Cook 

Jim Cook is the Executive Director for Idaho Legal Aid Services where he provides free civil legal representation to low-income Idahoans. Prior to his time at ILAS, he was an Associate Attorney at Thompson, Ashcraft and Burnham, where he practiced in state and federal litigation with an environmental law emphasis.  

Mr. Cook received his J.D. from the University of Idaho College of Law, where he spent his third year participating in a law school clinic project with Idaho Legal Aid Services to provide free legal representation to low-income Native Americans on the Nez Perce Reservation. Mr. Cook also has his B.S. from the University of Idaho. 

Zoe Anne Olsen 

Zoe Anne Olsen is the Executive Director for Intermountain Fair Housing Council. Prior to this position, Ms. Olsen was an attorney for Idaho Legal Aid Services. She has extensive housing law experience, including the Fair Housing Act (FHA), Idaho State housing law, reasonable accommodations and modifications, public housing cases, wrongful evictions, repairs, security deposits, mobile home park cases, foreclosures, and predatory lending.  

Ms. Olsen received a J.D. and M.P.A. from Seattle University and a B.A. from the University of Washington. 

Evan Stewart  

Evan Stewart is a Program Manager for Jesse Tree, an organization that provides financial assistance and case management to households at risk of eviction and homelessness who are unable to pay rent. 

Mr. Stewart is from Missoula, Montana where he earned a doctorate degree in Applied Anthropology at the University of Montana. During his time at the University of Montana, he conducted his dissertation project in the high Himalayas of Nepal working with local communities and addressing water, sanitation, and hygiene needs in the region. Mr. Stewart also worked as an anthropology instructor for the university.  

After graduating in May 2019, Mr. Stewart remained in Missoula working as a social worker at a child abuse prevention agency where he provided direct services, taught the Adverse Childhood Experiences Study (ACEs), family education classes, and resilience-building to members of the community. 

Morgan DeCarl 

Morgan DeCarl is an Eviction Court Program Manager. Before coming to work for Jesse Tree she worked as a case manager for adults with intellectual and developmental disabilities and fell in love with social work and the impact it has on the quality of life of others as well as their communities. Ms. DeCarl became a Professional Mediator in 2019 upon moving to Idaho and has experience providing mediation services in Ada County eviction court. 

Ms. DeCarl has a Bachelor of Science in Human Development from Purdue Global, and is starting her Masters in Social Work this year. 

LAND USE ISSUES IN IDAHO (AOI) 

Jaap Vos 

Jaap Vos is a professor of Planning and Natural Resources at the University of Idaho’s College of Natural Resources. At the University of Idaho, he teaches courses about community planning, sustainable communities, and rural planning issues. He also teaches a community assessment course and the advanced class of the Northwest Community Development Institute. He is the founding co-chair of APA Idaho’s Ag Chat, a group of planners and other stakeholders from throughout Idaho that meet monthly to discuss emerging planning issues in rural communities. 

His research is focused on planning for rural places. Most recently he and his students wrote an article about how traditional planning practices lead to the fragmentation of rural places. He was the lead author for the Infrastructure Section of the McClure Center for Public Policy Research’s Idaho Climate-Economy Impacts Assessment. He is currently analyzing driver’s license surrender data from ITD’s DMV from 2011-2021 to get a better understanding of population changes in different areas of Idaho. 

Mr. Vos has a Ph.D. in regional planning from the University of Illinois at Urbana Champaign and an M.S. in Environmental Science from Wageningen University in the Netherlands. 

Elizabeth Koerckeritz  

Elizabeth Koerckeritz is a Partner at Givens Pursley and provides advice to developers and businesses on the acquisition, entitlement, financing, and development of both large and small scale projects. She helps clients obtain economic incentives and entitlements from all levels of the government and represents clients on judicial reviews and administrative hearings before state agencies. She also assists airports in a wide range of federal regulatory matters and the negotiation of complex airport transactions. 

Prior to joining Givens Pursley, Ms. Koerckeritz was the senior managing attorney for the Boise City attorney’s office, where she supervised all of the attorneys and staff providing advice to the municipal departments within the City. In addition to her supervisory responsibility, she served as the attorney for the Boise Airport and was the lead attorney in the City’s efforts aimed at reducing homelessness and increasing affordable housing within the City. Ms. Koerckeritz has also been a solo practitioner, was a deputy attorney general for the State of Idaho specializing in criminal appeals, and a prosecutor in Jackson, Wyoming. 

Ms. Koerckeritz received her law and MBA’s degrees from the University of Colorado – Boulder. She graduated from Colorado College with a degree in anthropology. 

Meghan Sullivan Conrad 

Meghan Sullivan Conrad’s practices at Elam & Burke and focuses on local economic development with extensive representation to urban renewal agencies throughout the state on issues including structuring of private-public partnerships, government contracts, tax increment financing, litigation, appeals and governmental relations. Ms. Conrad’s practice also includes representation of a commodity promotion and research program, consumer and commercial lenders in foreclosures and collections, and she participates in insurance defense litigation. Ms. Conrad represented issuers in connection with both tax-exempt and taxable bond transactions and has worked as special Idaho counsel on a large energy (solar) financing project. 

Ms. Conrad has had the opportunity to speak at numerous conferences on the topic of urban renewal.  In 2014, Ms. Conrad was recognized by the Idaho Business Review as a Leader in Law, Firm Associated: Associate.  She is currently the Vice-Chair of the University of Idaho College of Law Advisory Council and is a member of State Law Resources, Inc., Idaho Women Lawyers and the Idaho Association of Defense Counsel.  

Ms. Conrad received her J.D. at the University of Idaho and graduated from Colgate University with a B.A. in International Relations and French. 

April 18, 2022 | Permalink | Comments (0)

Thursday, April 14, 2022

Student Note on housing appeals

Dan Mandelker forwarded a note by one of his students that might interest readers.  The note is by Bob Neel and entitled, "Combating Exclusion & Achieving Affordable Housing:  The Case for Broad Adoption of Housing Appeals Statutes."  The note was published in Washington University's law review.  You can download the note below.

Download Housing Appeals Boards Note

April 14, 2022 | Permalink | Comments (0)

Tuesday, April 5, 2022

100th anniversary of the Standard State Zoning Enabling Act (SZEA)

For those with an eye towards history, we are coming up on the 100th anniversary of the Standard State Zoning Enabling Act (SZEA).  Whether this is the appropriate year for celebrating (or shaking fists at) the SZEA depends on how you count it.

On September 15, 1922, the first version of the SZEA was released by the U.S. Commerce Department.  Subsequent drafts were released in December, 1922.  Other slightly-edited versions were released in 1924 and 1926.  A history is here.   

For students, it would make a lovely topic for a law review symposium this year or in the next few years!

April 5, 2022 | Permalink | Comments (0)

Wednesday, March 30, 2022

My comments submitted to NCBE regarding removal of land use subjects from the bar

I submitted the following comments to the NCBE today.  I welcome folks' thoughts and would be happy to post other professors' or professionals' comments on the blog, too.

Also, I asked NCBE to review my analysis in a previous post as to the subjects to be eliminated.  NCBE confirmed that my analysis was correct.

Here is the website where you can submit formal comments to NCBE:  https://nextgenbarexam.ncbex.org/csopc-register/

_______________

 

I want to start by saying that I recognize the difficult work it takes to restructure the bar exam, and I commend all of those associated with this effort.  I also understand the desire to reduce the number of subjects on the bar and I generally support that effort.  Nonetheless, I have concerns regarding the proposals for the Real Property subject outline.

At the outset, it is worth acknowledging that the role of the NCBE outlines in the legal academy is not readily agreed upon.  At the most obvious level, the outlines do represent the subjects that will be on the bar exam; however, I have talked to some professors that tell me they do not pay much attention to the outlines in preparing their courses.  I think that position holds more true at elite law schools where the presumption is that students will be able to acquire the details of legal knowledge in a bar course and instead the focus of teaching is primarily legal theory. 

At the other 180 (out of 200 or so) law schools, I suggest that the picture is very different.  At most law schools, preparation for class course coverage—especially in the first year courses—starts with the NCBE subject matter outlines.  I work at one of those schools, and I can attest that though we do not prescribe coverage in courses, we do expect our professors to hit most of the subjects on the NCBE outline that are relevant to first year subjects.  For those schools (such as mine), taking a topic off the subject outline will have one of two effects.  On the one hand, professors may continue to teach the de-listed topic; on the other hand, there could be increasing pressure to teach the tested subject matter more intensely with a hope of driving up bar passage scores.  Having served a term as an associate dean, it is hard for me to believe that the effect won’t be the latter.  What we will see, I believe, is more intense teaching of the subjects remaining on the NCBE subject outlines rather that faculty using the time to teach more relevant subject matter to present-day practice.  And so, I suggest that removal from the outline means, in essence, removal from teaching at most law schools.  That is probably more true the further down the rankings of schools you go, but again, my contention is that NCBE outlines are the centerpiece of course planning at the vast majority of law schools.

This brings me to the proposed changes to the Real Property subject matter outline.  The changes to the Real Property outline are essentially the following four:

  1. The elimination of all land use subjects.  The existing outline requires a study of zoning laws, non-conformity, and "rezoning and other changes." 
  2. The elimination of all discussion of common interest communities, the most prevalent form of private land use controls.
  3. Takings also appears to be de-emphasized; it is not a starred subject in the Con Law section meaning students apparently are not expected to know the doctrine, just be able to work with it. See the intro note below.
  4. Private nuisance is emphasized; public nuisance is not.

With these changes, the remaining subjects emphasize private transactional real estate practice almost exclusively.  I suggest that is highly problematic to students’ understanding of how real property law works today.  That is because the proposed change would result in virtually no coverage of public or administrative law on real property, a remarkable choice given how property operates today.  Virtually all land in the U.S. is zoned or otherwise subject to some kind of regulation.  Even in Houston, which has no zoning, land is controlled through private restrictive covenants enforced by the city through third party rights of enforcement.  If the scoping outline eliminates all forms of public regulation of property, students in classes guided by the outline will leave with a deeply misguided sense of what property is today. 

It also strikes me as an unusual time in the history of property to decide to eliminate land use topics from the bar.  There is arguably more interest in land use regulation than ever, in large part due to the heightened understanding within the last decade of how these regulations have been abused to segregate communities along racial and class lines.  There is also an increased focus on land use due to the unprecedented challenges of housing affordability.  There is also recognition that land use is essential to resolving the climate crisis.  As California’s 2017 Scoping Plan noted, “Contributions from policies and programs, such as renewable energy and energy efficiency, are helping to achieve the near-term 2020 target, but longer-term targets cannot be achieved without land use decisions that allow more efficient use and management of land and infrastructure.”  California’s 2017 Climate Change Scoping Plan, CAL. AIR RES. BD.,  100 (2017), https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.  That the bar would de-emphasize these subjects at a time of heightened interest in the topic is hard to understand.

I am similarly concerned about the elimination of the common interest community (CIC).  My understanding is that there are presently very few traditional restrictive covenants of the two-party variety drafter much anymore; all of the action is in CICs.  According to a recent paper, nearly 60% of new residential construction is subject to HOAs, a residential form of CICs.  See Wyatt Clarke & Matthew Freedman, The rise and effects of homeowners associations, 112 J. of Urban Economics (2019) 1–15.  Commercial developments are also commonly subject to CICs, which has become an ever-increasing headache for redevelopment of aging commercial properties.  Teaching restrictive covenants without teaching CICs is a decision to teach an ancient rule without teaching its modern real-world application. 

Similarly, the de-emphasis of takings and public nuisance is odd to me at a time when the Supreme Court seems interested in re-framing the takings clause as an ever-increasing sword against a variety of governmental administrative action.  Cedar Point Nursery is indicative of that trend, but I believe there is reason to presume that the trend is just beginning. 

Finally, I do want to commend the expansion of fair housing within the revised outline.  However, if the outline is adopted as proposed, fair housing will be the only public law real property subject left.  I do want to note, though, fair housing as typically taught does not operate the way the other public law subjects proposed for elimination and de-emphasis do.  The disparate treatment and disparate impact claims under the Fair Housing Act operate primarily through litigation, while most of the other public and private regulation subjects slated for removal are primarily administrative in nature.  As a result, it would be wrong to think that fair housing could stand in as representative of public and private law real property regulation because the implementation of fair housing is unique in the world of real property.  Ironically, the most active discussions around fair housing these days are on the long-forgotten third prong of the Fair Housing Act, which requires local governments to “affirmatively further” de-segregated communities.  The first effort to give force to that prong of the Act was the Obama-era Affirmatively Furthering Fair Housing Rule (AFFH Rule) and recently revived by the Biden Administration.  The tenets of the AFFH Rule require local governments to take prospective steps towards de-segregation.  How so?  Almost universally, those steps are administrative in nature and focus on land use policy changes slated for de-emphasis or elimination on the bar.  See HUD’s AFFH Guidebook.

For these reasons, I suggest that NCBE revisit its decision to eliminate most of the public law subjects on the Real Property scoping outline, as well as CICs.  One option would be to leave these subjects on the outline but not to star them as primary subjects.  A second option would be to more formally define the land use subjects the bar wants to test.  At present, it is admittedly unclear what aspects of “zoning” to emphasis in a day or two of first year class when the subject is massive. 

Thank you for reaching out for comment. 

STEPHEN R. MILLER
Professor of Law, Univ. of Idaho College of Law


millers@uidaho.edu
 
208-364-4559  |  415-377-9501 (Cell) 
501 W. Front Street | Boise, ID  83702-7232

 

 

March 30, 2022 | Permalink | Comments (1)

Saturday, March 26, 2022

NCBE proposes to eliminate all land use subjects and de-emphasize takings on its subject outlines beginning in 2026

I was asked by NCBE to begin a discussion of the Real Property outline of the proposed 2026 NextGen Bar Exam.  For the uninitiated, this is the outline of subjects that NCBE plans to test on the standardized portions of the bar.  NCBE is taking public comment at https://nextgenbarexam.ncbex.org/csopc-register/. The deadline for public comments is April 18.

Here are the proposed new outlines:   Download NextGen Content Scope Outlines Report.

It just so happened that I had undergone an extensive review of our Property course and so I had the existing NCBE coverage for Property handy, and went through the 2026 proposal.  A couple things stand out:

  1. The elimination of all land use subjects.  The existing outline requires a study of zoning laws, non-conformity, and "rezoning and other changes."  
  2. The elimination of all discussion of common interest communities, the most common form of private land use controls.
  3. Takings also appears to be de-emphasized; it is not a starred subject in the Con Law section meaning students apparently are not expected to know the doctrine, just be able to work with it. See the intro note below.
  4. Private nuisance is emphasized; public nuisance is not.

I have not submitted comments to NCBE, but wanted to get this out on the blog at their request, and also get folks thinking about it.  I doubt land use has ever played much of a role in the bar exam overall, but I thought it was worth flagging the elimination of these sections of the existing outline.

 

2026 Proposal:  Topics followed by an asterisk (*) will be tested in a way that assumes examinees know the details of the relevant doctrine without consulting legal resources.  All other topics will be tested in a way that assumes examinees have general familiarity with the topics for purposes of issue-spotting or working efficiently with legal resources provided during the exam.

Existing NCBE Real Property Outline subjects (no new subjects proposed by 2026 NCBE Proposal)

Existing NCBE coverage

2026 NCBE Proposal coverage

     

I.         Ownership of real property

x

x

A.    Present estates and future interests

x

x

1.     Present estates

x

x

a.     Fees simple

x

x*

b.     Defeasible fees

x

x

c.     Life estates

x

x

2.     Future interests

x

x

a.     Reversions

x

x

b.     Remainders, vested and contingent

x

x

c.     Executory interests

x

x

d.     Possibilities of reverter, powers of termination

x

x

e.     Rules affecting these interests (including survivorship, class gifts, waste, and cy pres)

x

x (arguably broader here, stating "language used in conveyance (children, heirs, issue); class
members not yet born; when the class closes; conditions on disposition; contingency
of survival (express and implied); and affirmative waste, permissive waste, and
ameliorative waste (open mines doctrine, obligations to pay taxes, make repairs,
apportionment of costs for special assessments)"

B.    Cotenancy

x

 

1.     Types: tenancy in common and joint tenancy

x

x* (also includes tenancy by the entirety)

2.     Rights and obligations of cotenants

x

x* (also obligationscludes and by the entirety)

a.     Partition

x

x*

b.     Severance

x

x*

c.     Relations among cotenants

x

x

C.    Landlord-tenant law

x

x

1.     Types of tenancies

x

x*

2.     Possession and rent

x

x

3.     Transfers by landlord or tenant [assignment / sublease]

x

x*

4.     Termination (including surrender, mitigation of damages, anticipatory breach, and security deposits)

x

x*

5.     Habitability and suitability [constructive eviction / IWOH]

x

x*

D.    Special problems

x

x

1.     Rule against perpetuities: common law rule and statutory reforms

x

 

2.     Alienability, descendibility, and devisability of present and future interests

x

x*

3.     Fair housing/discrimination

x

x*

4.     Conflicts of law related to disputes involving real property

x

 

II.        Rights in real property

x

x

A.    Restrictive covenants (includes equitable servitudes)

x

x

1.     Nature and type

x

x*

2.     Creation

x

x

3.     Scope

x

x*

4.     Transfer

x

x*

5.     Termination

x

x*

6.     Property owners’ associations and common interest ownership communities

x

 

B.    Easements, profits, and licenses

x

x

1.     Nature and type

x

x*

2.     Methods of creation

x

x

a.     Express

x

x*

b.     Implied

x

x*

c.     Prescription

x

x*

3.     Scope and apportionment

x

x*

4.     Transfer

x

x*

5.     Termination

x

x*

C.    Fixtures

x

x*

D.    Zoning (fundamentals other than regulatory taking)

x

 

1.     Zoning laws

x

 

2.     Protection of pre-existing property rights

x

 

3.     Rezoning and other zoning changes

x

 

III.       Real estate contracts

x

x

A.    Real estate brokerage

x

x

B.    Creation and construction

x

x

1.     Statute of frauds and exceptions

x

x*

2.     Essential terms

x

x*

3.     Time for performance

x

x*

4.     Remedies for breach

x

x*

C.    Marketability of title

x

x

D.    Equitable conversion (including risk of loss)

x

x

E.    Options and rights of first refusal

x

 

F.     Fitness and suitability

x

 

G.    Merger

x

x*

IV.       Mortgages/security devices

x

x

A.    Types of security devices

x

x

1.     Mortgages (including deeds of trust)

x

x*

a.     In general

x

x

b.     Purchase money mortgages

x

x

c.     Future advance mortgages

x

x

2.     Installment land contracts

x

 

3.     Absolute deeds as security

x

 

B.    Security relationships

x

x

1.     Necessity and nature of obligation

x

 

2.     Mortgage theories: title, lien, and intermediate

x

x

3.     Rights and duties prior to foreclosure

x

 

4.     Right to redeem and clogging the equity of redemption

x

 

C.    Transfers

x

 

1.     By mortgagor

x

 

a.     Assumption and transfer subject to

x

 

b.     Rights and obligations

x

 

c.     Application of subrogation and suretyship principles

x

 

d.     Restrictions on transfer (including due-on-sale clauses)

x

 

2.     By mortgagee

x

 

D.    Discharge of the mortgage

x

 

1.     Payment (including prepayment)

x

 

2.     Deed in lieu of foreclosure

x

 

E.    Foreclosure

x

 

1.     Types

x

x

2.     Acceleration

x

x

3.     Parties to the proceeding

x

x

4.     Deficiency and surplus

x

x

5.     Redemption after foreclosure

x

x

V.        Titles

x

x

A.    Adverse possession

x

x

B.    Transfer by deed

x

x

1.     Requirements for deed

x

x*

2.     Types of deeds (including covenants for title)

x

x*

3.     Drafting, review, and negotiation of closing documents

x

 

4.     Persons authorized to execute documents

x

x*

C.    Transfer by operation of law and by will

x

x

1.     In general

x

x

2.     Ademption

x

x

3.     Exoneration

x

x

4.     Lapse

x

x

D.    Title assurance systems

x

 

1.     Recording acts

x

x

a.     Types

x

x

b.     Indexes

x

x

c.     Chain of title

x

x

d.     Hidden risks (e.g., undelivered or forged deed)

x

x

2.     Title insurance

x

 

E.    Special problems (including estoppel by deed and judgment and tax liens)

x

 
     

Other topics covered on bar on other sections of MBE outline

 

 

Takings [Con Law IV(d)]

x

x (Proposal Con Law V(b)) ("This topic includes just compensation, the “public use” limitation, and the distinction between
taking and regulation.")

Eminent Domain

   

Penn Coal; Penn Central

   

Per Se Rules

   

Trespass [MBE Torts I(a)]

x

x (Proposal Torts I(b)]

Nuisance [MBE Torts IV(a)]

x

x (Proposal Torts V(a)]

Private nuisance

x

x*

Public nuisance

x

x

March 26, 2022 | Permalink | Comments (3)

Thursday, March 10, 2022

2L/3L Scholarship to ALI-CLE Eminent Domain and Land Valuation Litigation Conference

The following message is from Dwight Merriam:

Subj:  Opportunity for students interested in property rights  

Greetings.

As a longstanding member of Owners' Counsel of America https://www.ownerscounsel.com/ (I am the OCA designee for the State of Connecticut - OCA selects one lawyer from each state), I thought you would want to hear about an opportunity for your 2L/3L students interested in private property rights. 

Last year OCA started a scholarship in the name of its founder, Toby Prince Brigham, a lawyer who spent nearly 50 years defending private property rights. The scholarship pays for all of a student's expenses to attend the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (now entering its 40th year and attended this year by about 200, the first ALI-CLE in-person meeting since the pandemic), where the student will meet and network with leading property rights and eminent domain lawyers and scholars from across the country, while also learning about the substantive law. 

This year the conference was held in Scottsdale, Arizona, and next year it will likely be in another great location. If you know of a student who may be interested in applying for this scholarship, please have them contact Leslie Fields, Executive Director of OCA at ownerscounsel@gmail.com or 303-806-5155. Further details about the scholarship are included in the attached Brochure. 

Applications are due by October 1st of this year.  

Regards,

Dwight

Download Toby Prince Brigham OCA Scholarship Brochure

 

March 10, 2022 | Permalink | Comments (0)

Thursday, March 3, 2022

Land Use, Human Health, and Equity Project, Post 40: Lessons Learned

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Blog No. 40 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: John R. Nolon, Distinguished Professor Emeritus [*]

Lessons Learned

 

In this 40th and final blog in our series of reports from our Land Use, Human Health, and Equity Project, we focus on lessons we learned over the past two years. During that time, over 30 students working at the Land Use Law Center labored to find and report on innovative land use strategies by local governments to mitigate the adverse effects of catastrophic environmental change on human health.

Lesson One: Six years ago, we posted over 20 blogs on GreenLaw celebrating the centennial of land use law. Our new project dramatically reaffirmed the lesson we learned from that historical review: that local governments adopt innovative land use strategies as they confront serious new environmental challenges. Our current student team learned that municipalities were challenged like never before when, roughly two years ago, four catastrophes emerged simultaneously: COVID-19, profound evidence of racial inequity, a nation-wide housing crisis, and evidence in nearly every community of devastating climate change. The students expected to find many local governments creating innovative land use strategies; they were not disappointed.

Lesson Two: In January of 2020, we created a student-led Land Use, Human Health, and Equity research team to track, analyze, and report on emerging land use strategies. Our students produced 40 blogs for this series. As reported in Blog #39, we learned that many groundbreaking innovations have emerged and many more are on the way. We also relearned, as engaged law professors know, that students are capable of leading the way in discovering and disclosing how the law works when society is challenged. They are deeply invested in problem solving for the future. The remaining lessons demonstrate that point.

Lesson Three: Perhaps the most dramatic change in land use planning was discovered by our LLM team member, Rhea Mallett. She found several examples of local governments adopting what she dubbed eCPs: equitable comprehensive plans (see Blog 26: A New Era of Equity-Based Comprehensive Planning…Finally and Blog 27: Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities). Local governments are adding equitable principles and strategies to their land use plans. They are admitting the racist impacts of previous plans and land use laws, apologizing for them, and committing to a variety of land use reforms to create more equitable communities. Rhea’s foundational article on her findings of first generation eCPs will appear in a forthcoming issue of the Zoning and Planning Law Report.

Lesson Four: In an equally dramatic finding, our 2L Land Use Scholar, William West, discovered several other communities that are using Racial Impact Analyses to evaluate and make more equitable their land use policies, plans, and projects. William discussed his findings at a panel sponsored by the ABA Section of State and Local Government Law at the ABA’s mid-year meeting where the novelty of his work was acknowledged. He will be the author of an article on the advent of land use racial impact studies, which will also appear in the Zoning and Planning Law Report this spring.

Lesson Five: Despite the plenary power of local land use authority, municipalities sometimes need direction from their state governments when they ignore critical issues. This is the case with the high cost of housing attributed in significant part to zoning that excludes affordable types of housing (see Blog 20: Housing, a Crucial Determinant of Health; Blog 21: ADU Introduction; Blog 22: NIMBY Restrictions Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity; and Blog 23: Zoning to Fill the Missing Middle Gap). The housing crisis has led several states to mandate greater density in single-family zones, which cover an outsized share of the landscape in many communities. Other state mandates are emerging, requiring greater density near transit centers, for example, and reversing the presumption of validity of land use decisions that reject affordable housing projects. Land Use Scholar Bailey Andree is coauthoring an article with our Professor Shelby Green on these actions. It will be published in the ABA’s Property and Probate Journal.

Lesson Six: For several years, we have been studying several types of gentrification and the displacement of current, lower-income residents (see Blog 33: Gentrification: Remedies and Consequences and Blog 34: What is Climate Gentrification and Why is it Different?). Despite its seriousness, the problem has not been addressed effectively by local action in most gentrifying communities. Other than trying to stem displacement by mandating that 10-20% of new housing be affordable, solutions have been hard to find. This too is changing, for example, with communities inventing zoning strategies to create types of housing that are 100% affordable and giving priority occupancy rights to those facing displacement. Land Use Law Scholar Gabriella Mickel will publish the results of her impressive findings on this topic in the next issue of The Urban Lawyer.

Lesson Seven: Zoning that creates Transit Oriented Development (TOD) is a much-needed innovation that creates low carbon land use near transit stations. Our students discovered that TOD, however, could cause housing price increases that further displacement. Students found municipalities that are requiring affordable housing in TOD areas to prevent displacement and the loss of needed workers. They called this strategy “equitable Transit Oriented Development,” or eTOD.

Lesson Eight: Heat waves are a principal cause of death directly related to global warming. Not surprisingly, Urban Heat Island (UHI) areas exist in formerly redlined areas, areas zoned for low-cost housing and brownfield development. Restrictive FHA underwriting standards prevented lending in these neighborhoods. Together, zoning and these lending standards stymied property improvement and infrastructure development where trees are few, pavement is pervasive, and temperatures on hot days are markedly higher than in nearby single-family neighborhoods shaded by ample tree density. Localities are finding ways to increase tree canopies in UHI areas to preserve trees, enhance shading, protect tree roots, and require developers to add vegetative features to their developments (see Blog 9: Urban Heat Islands and Equity and Blog 10: Urban Heat Island and Equity: What Can Local Governments Do?).

Lesson Nine: Our students were aware that these four catastrophes have different causes, call for different solutions, and need to be addressed comprehensively to avoid strategic collisions. Their search for a holistic approach led them to Portland where they discovered a city addressing each of the catastrophes in an integrated fashion directed and linked by new objectives and strategies added to its comprehensive land use plan (see Blog 29: Addressing the Four Pandemics – A Case Study).

Lesson Ten: The Portland example and, cumulatively, all 140 land use strategies found by our students are efforts to create resilient communities that can absorb and adjust to the shocks of climate change and the other critical challenges they face. The first blog in our series noted that we need “to reframe sustainability” and to “contribute to communities’ healthy and resilient post-pandemic futures while also reinvigorating cities’ climate change management capabilities.” (See Blog 1: Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project.) Our students are aware of the overpowering influence that climate change is having today, right now, on their careers, families, and environment. They see great promise in embracing resilience as a core principle for our conversations and our policies. They recommend that, after a short break, we reconvene as the Land Use Resilience Initiative. “Land Use” because it is that body of law that we use to shape neighborhoods and larger settlements. “Resilience” because it is our interconnected built and natural environments that must be capable of adjusting to the changing climate.

Our students also recommend that we devise new ways of communicating the results of our research. They want to move beyond blogs and outside the academy. They want to use social media methods to reach stakeholders at the ground level who need to know how to turn the results of our research into effective local strategies. Their outstanding work on our Land Use, Human Health, and Equity Project makes it clear that they know what they are talking about. Stay tuned.

Postscript: I have noticed an uptick in the number of our law students who come to us with undergraduate concentrations in studies such as communications, psychology, behavioral economics, and extracurricular engagements with groups and organizations at the grass roots level. This may explain their interest in sidebar disciplines that we teach such as complex adaptive systems, the diffusion of innovation, and collaborative subsidiarity. Our students represent a generation that has to construct policy and make critical decisions effectively. It is not enough to adopt a collection of innovative land use strategies. These sidebar disciplines teach that systems thrive through the connectivity of their component parts, that innovations are spread by peer-influencers, and that local governments must collaborate with state and federal agencies to solve larger problems. Intuitively, our students know the importance of these effective communication skills. They may be teaching us about the connective sinews and flexible tissues that create lasting resilience.

[*] John R. Nolon is a Distinguished Professor of Law Emeritus at the Elisabeth Haub School of Law and is Counsel to the Land Use Law Center. He supervises student research and publications regarding land use, sustainable development, climate change, housing insecurity, racial inequity, and the COVID-19 pandemic.

Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?
  35. Using Supportive Housing to Address Homelessness
  36. Low Carbon and Resilient Land Use: Part 1
  37. Low Carbon and Resilient Land Use: Part 2
  38. Low Carbon and Resilient Land Use: Part 3
  39. Gaining Ground on Four Catastrophes: How to Find and Use Strategies to Protect Human Health

To subscribe to the GreenLaw Blog, please go to https://greenlaw.blogs.pace.edu/ and click on the “Subscribe” envelope.

 

March 3, 2022 | Permalink | Comments (0)

Thursday, February 17, 2022

Comments on Boise's Draft Zoning Code Revision

This post is admittedly probably of interest only to Boise folks... 

Boise is in the process of overhauling its zoning code for the first time since 1965.  Below is the core of comments I submitted today on the draft code revision.  

 

Madam Mayor:

I am writing to offer comments on the proposed zoning code rewrite draft recently released by the city. 

By way of introduction, I am a law professor at the University of Idaho College of Law in Boise where I teach courses on property, land use, and real estate.  I am also the author of West’s Land Use and Sustainable Development Law, the former editor of the American Bar Association’s Journal of Affordable Housing & Community Development Law, and the author of over 40 articles on land use subjects.  I also recently completed a casebook on Idaho land use law.  In addition, I am trained as an urban planner having received by master’s in city and regional planning from U.C. Berkeley and am a member of the American Institute of Certified Planners (AICP).  Perhaps most importantly, I am also a former Planning & Zoning Commissioner. 

To the extent they are helpful, below are several thoughts I had both directly related to, and ancillary to, the released draft.  Hopefully they will be of some use.

First, a revision of Blueprint Boise is understandably not within the scope of this zoning code re-write.  However, as the comprehensive plan for the city, Blueprint Boise play an important role—as required by state statute—in whether such discretionary permits should be granted.  The problem with Blueprint Boise, however, is that it is not just the text of the original document, but also the incorporation of nearly fifty additional plans that are not integrated into the plan and the relevance of which is not immediately known.  To the extent that discretionary permits continue to analyze the comprehensive plan, as they must, a better way to access all of the documents integrated into Blueprint Boise is essential to make the document usable in the discretionary permit decision making.

Second, there are several procedural measures in the land use decision making process that routinely cause confusion that I suggest this rewrite should address.  Among these is what constitutes findings in staff reports that are ultimately the basis for the decision of the Planning & Zoning Commission.  City staff have tried several approaches over the years, but I believe all of them have left the city needlessly open to litigation and uncertainty about the commission’s decision.  At present, the staff write both a “reasoned decision” summary for adoption by the Commission and they also write an analysis of the relevant elements in the granting of a discretionary permit.  In evaluating the elements, the staff also provides analysis that often differs from the Commission’s discussion and also is not encapsulated in the reasoned statement.  This presents considerable confusion as to what the actual findings of the Commission are.  I suggest that the city use this process to address these structural decision making concerns.  Most cities of Boise’s size have a staff report for discretionary permits that consists of two parts:  an analysis section and a draft motion with proposed findings.  When the Commission debates approval of the permit, they then are debating and adopting the motion and its findings, and not the analysis.  This is a much cleaner legal process and one that I also believe would help the Commission do its job better.  There is also considerable confusion about what happens when the Commission denies a project and it then goes to city council.  The city council routinely speak of rejecting the Commission’s decision and errors they find in that decision.  This is not the standard of review.  Rather, the city council needs to be better instructed that they are hearing the application anew (de novo, as lawyers would say) and not in a posture of determining whether there was fault in the Commission’s decision (an arbitrary and capricious standard, as the lawyers would say).  This also needs to be clarified in this process.

Third, Boise’s current structure of planning decision making bodies encourages project applicants to play the decision makers against each other.  Routinely in my time on P&Z we were told by a project applicant that a certain decision would be made in design review or was a question for historic preservation.  Boise has no unified land use permitting structure and this harms overall project decision making.  Now is the time to evaluate whether this decision making process makes sense for the next generation.  I suggest that it doesn’t.  Instead, I would suggest that there be some way that the various commissions relate to each other and make a unified decision.  That could mean that all decisions by the Historic Preservation Commission and the Design Review Committee are tentative until approval by the Planning & Zoning Commission, or there is some other oversight board that consists of both staff and commissioners.  In any case, it should be clear to all that project applicants utilize the bifurcated nature of the decision making process to prevent meaningful review by the city and something should be done to address it.  Cleaning up this process doesn’t have to necessarily create more busy work for project applicants.  If done right, it should actually benefit project applicants and the city by providing a more integrated decision making apparatus.

Fourth, because of the outdated nature of the code, the city has increasingly utilized administrative review processes for more and more permits.  This should be stopped because it leads to decision making that has at least the appearance that it could be abused.  The notice processes are also often dubious.  The code needs to be revised to eliminate these administrative processes. If the city intends to give the permits all the time, then the use should simply be permitted.  On the other hand, if the city wants more discretion, it should be given the usual process of the P&Z hearing.  A third approach would be to utilize a zoning administrator, which would be a staff member that could hold individual adjudications that could be appealed to the P&Z Commission.  Also, the zoning administrator could issue binding interpretations of the zoning code where there is ambiguity that would clarify how the staff will define the difference between permitted uses and discretionary uses.

Fifth, the city has made it difficult for community members to track projects.  As part of this process, the city should make it easy for the community to engage with projects in their neighborhood.  With today’s planning software, access to applications is easy, if the city wants it to be.  However, Boise has made it purposefully difficult for individuals to meaningfully track development in their community.  That should stop.  Share the data easily as so many other cities do.

Sixth, the city has revised its code to permit issuance of use variances.  Idaho statute only permits the granting of area variances.  This is ultra vires and the city needs to change its variance criteria to ensure compliance with state statute.

Seventh, the proposed use districts do not address a major issue that arises in the older neighborhoods.  In the older neighborhoods, many homes have rear garages or storage sheds.  Prior to the current zoning code, many of these rear structures were permitted at the lot line; however, current code provisions require a 5-foot setback.  On small lots in places like the North End and the East End, this is a significant difference.  It was also a consistent source of variance applications while I was on the Commission.  Today, the city has addressed this issue through the administrative variance process and by permitting the use variance.  As noted above, however, both of these are highly problematic processes.  Instead, I suggest working with the communities to discuss how rear yard structures can be retained at or near the lot line in a more meaningful way that is also in line with urban trends.

Eighth, I would encourage this zoning re-write to more forcefully embrace residential development in those areas where retail strip malls are currently.  Research increasingly shows that redeveloping retail strip malls has a remarkable capacity to address housing needs, and much more so that retrofitting single-family districts.  For instance, one report by the Boston Metropolitan Area Council found that, "[i]f the top 10 percent of [retail] sites in each [Boston area] municipality were retrofitted to new mixed uses – an average of fewer than four sites per community – it could create 125,000 housing units," which is enough to close the housing shortage of what Boston needs to produce by 2030 (according to the report) to stabilize the market.  The excellent report is here: https://storymaps.arcgis.com/stories/cb9bec551f9d48599f267f4ff6282906.  As many urban successes stories, such as Copenhagen, have found over the years, linear development provides the most cost-effective methods of providing infrastructure.  For instance, linear development permits bi-directional commuting, which lessens the transportation infrastructure burden.  It also provides for lighter uses in between the development corridors, which can be used for parks and open spaces.  Copenhagen successfully implemented this model, called the Five Finger Plan, which grew the city in five linear strips, which continues to give access to rural amenities in the spaces between the developed fingers.  Boise could accomplish something like this in the areas where development is still forthcoming. 

Ninth, I would encourage the city to think about more sustainability incentives than are already in this vision.  For instance, there is little discussion here about subdivisions placed in the path of wildfire.  Perhaps they could be required to be Firewise communities.  There is little discussion about pathways in the foothills.  Today, many such paths are “managed” by HOAs in a manner that is all too often exclusive.  Such pathway discussions cannot be had on an ad hoc basis but can be required generally.  Further, more should be done to ensure connectivity between subdivisions for automobiles, pedestrians and bikes.  Again, these can be generally applicable requirements, but are almost impossible to impose on an ad hoc basis.  Other issues to address could be mandatory tree canopies to address urban heat island effects, and incentives for xeriscaping or related reduced water landscaping.

Tenth, the retention of the planned unit development (PUD) structure worries me.  Currently, most major developments are PUDs.  While this would limit PUDs to larger projects, I believe that more should be required and mandated by the city to use the PUD process.  I believe that should emphasize sustainability and resilience for those larger projects that have the ability to utilize scale to more efficiently assist with climate-related efficiencies.  The current proposal makes sustainability measures one option of many; realistically, most developers will choose the amenities options.  Instead, the PUD should require one of the the sustainability options (2)(a)-(b), and then an additional amenity option (2)(c)-(f).

Eleventh, there needs to be more discussion of how the city will prioritize the coming changes related to the energy revolutions now occurring.  This includes addressing where to place an electric vehicle infrastructure to ensure that this transformation has adequate space within and throughout the city.  Also, bonuses could be given on height to permit and encourage solar arrays.

Twelfth, the city should consider a “super-benefit” for a zero net energy development.  Large-scale developers throughout the West have already made it evident that zero net energy suburban development is possible.  Boise should encourage this kind of development through perhaps a “super-PUD” provision.  I would especially encourage such relevance in existing urban infill sites, such as strip malls, that are challenging.  It could also be relevant to greenfield development, too.  While such permits may seem aspirational now, it moves the conversation about community expectations for impact on the environment that are relevant to the twenty-first century.

Thirteenth, I suggest open-sourcing housing developments that the city would permit without any discretionary permit.  This has been done in other communities, and is based upon the work of Christopher Alexander, which acknowledges that each city has its own “pattern” of development.  By encouraging the development of specific unit types, the city has a future in the kinds of units that are built.  For instance, this could address the missing-middle housing issue by providing open-sourced housing development plans for smaller square-footage homes than are typically built in new construction.  The city then plays a role in creating a developer community that can build that particular unit and thus drives the cost lower by creating scale even for infill projects.

Fourteenth, the city should consider conditions on any multi-unit building placed in an existing single-family district that would permit the new structures to only be used for primary residential uses.  This would foreclose the teardown of single-family homes to be replaced with duplexes or triplexes that are then used for short-term rentals or other uses.  The purpose of increasing density in single-family districts is to provide housing, and a condition to that effect simply ensures the continued residential, rather than commercial, use of the property to address today’s housing shortage.

February 17, 2022 | Permalink | Comments (0)

Wednesday, February 16, 2022

Forget duplexes and redevelop the strip malls: Proposals from Boston

As readers of this blog know, I am dubious that trying to upzone single-family districts will have much luck in actually producing much housing any time soon.  And by "any time soon" I mean, like, in the next decade or two.  I much prefer the idea of retrofitting strip malls that provides just as much potential to address equity concerns, is economically viable for developers, and could be much more easily serviced by infrastructure than random duplexes or triplexes.  A new report from the Boston Metropolitan Area Council adds some staggering statistics to support this approach.  

According to the report, "If the top 10 percent of sites in each [Boston area] municipality were retrofitted to new mixed uses – an average of fewer than four sites per community – it could create 125,000 housing units," which is enough to close the housing shortage of what Boston needs to produce by 2030 (according to the report) to stabilize the market.

The excellent report is here:  https://storymaps.arcgis.com/stories/cb9bec551f9d48599f267f4ff6282906

I really hope this idea takes off and we stop putting all our effort into duplexes.  Retrofitting retail is where it's at for so many reasons this report lays out so well.

February 16, 2022 | Permalink | Comments (0)

Friday, February 11, 2022

New edition of ABA Legal Guide to Affordable Housing Development just published!

This just in from Tim Iglesias:

The third edition of the ABA Legal Guide to Affordable Housing Development has been published: https://www.americanbar.org/products/inv/book/420065732/

This book is a comprehensive legal guide to the development of affordable housing for practitioners and housing advocates. It covers all aspects of the development process, including zoning and building codes, financing, monitoring and enforcement of regulations, preservation of affordable housing, and relocation requirements. It also includes brief chapters on the history of affordable housing and the future of affordable housing.

 

Book cover

February 11, 2022 | Permalink | Comments (0)

Tuesday, February 1, 2022

Is single-family district reform missing the mark on missing middle housing?

There are a lot of news stories out there reporting on the first implementations of single-family zoning retrofits but this one got me in particular.  Olympia, Washington essentially rezoned all single-family districts not just for duplexes, but fourplexes.  The result was--well--nothing happened.  Essentially, the city permitted the exact same number of missing middle units--just 24 in a modestly-sized city--as they had in years before the zoning change.  

This, and other stories (especially this Terner Center report) emerging about the effects of single-family zoning reform, make me dubious that this change will yield significant new housing.  The economics and logistics for the real estate developer just don't seem to be there to me (I'd love for someone to prove me wrong on that).

My personal penchant would be to prioritize redevelopment of retail corridors, which is getting some attention, but not enough.  Retail is undervalued (read: cheap), built into the fabric of communities (read: strip malls), the retail use can be preserved while providing housing on top, and running both transportation and infrastructure is cheaper along established arterials than distributing it through SFDs.  The only big proponent of corridors for housing right now seems to be Peter Calthorpe.  I wish others would pay more attention to him.

The story on Olympia is here:  https://www.theolympian.com/news/local/article257068052.html

February 1, 2022 | Permalink | Comments (0)

Wednesday, January 26, 2022

Land Use, Human Health, and Equity Project, Post 35: Using Supportive Housing to Address Homelessness

 Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 35 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Authors: Michael Ohora and Jaclyn McBain Cohen [*]

Using Supportive Housing to Address Homelessness

Supportive housing is a form of permanent affordable housing that provides supportive services, such as “mental health, physical health, language, and cultural needs, education, employment, addiction and recovery, tenant rights and others" to individuals who are homeless, vulnerable to becoming homeless, or disabled. Supportive housing programs take the “housing first” approach, which involves addressing homelessness by placing individuals in a permanent residence before addressing other issues, such as drug addiction, physical and mental health issues, unemployment, and insufficient development of life skills. By prioritizing housing, individuals are provided a secure environment to work on their vulnerabilities rather than doing so while on the street or in a shelter. Permanent supportive housing programs achieve an occupancy retention rate as high as 98%. In contrast to the “housing first” approach, the “services first” approach involves attempting to meet the needs of homeless individuals while they are unprotected by permanent shelter. States, such as Utah, that have shifted from a “services first” approach to a “housing first” approach have seen substantial decreases in their homeless populations as individuals are given housing to provide stability from which they can begin to work on sobriety, mental health problems, job seeking, etc.

There are two main models of supportive housing: the scatter-site model and the single-site model. The scatter-site model involves an organization purchasing housing units across a variety of buildings and properties, which can include apartments, condominiums, or houses. This model allows supportive housing units to be integrated within the general community, and it allows for flexibility in the creation of supportive housing units since any number of units in one building can be purchased to serve as supportive housing. In a clustered scatter-site model, units can be purchased to form a cluster of supportive housing units within a larger property. The clustered scatter-site housing scheme forms an “economy of scale” by reducing the costs incurred by service providers to cover travel, staffing, and maintenance fees. In contrast to the scatter-site model, the single-site model involves a not-for-profit developer purchasing an entire building and using all of the units to provide supportive housing. In this model, on-site services are provided and tailored to the needs of the building’s occupants.  

Local governments can aid in the provision of supportive housing in a variety of ways. For example, Los Angeles initiated the Proposition HHH Supportive Housing Loan Program for the purpose of providing loans to developers who build supportive housing developments. This proposition was passed by voters in 2016, thereby authorizing a $1.2B bond to offer loans. The goal of the project is to build 8,000 supportive housing units. Developers work with the City to identify providers of the particular supportive services needed by the types of vulnerable tenants who will occupy the new units. The City’s requirements specify that the supported residents be “extremely low income” (up to 30% of the area median) or “very low income” (up to 50% of the median) and to be homeless or chronically homeless.

 

As another example, New York City sponsors the 15/15 Initiative through the Office of Supportive and Affordable Housing and Services. The 15/15 Initiative involves developing 15,000 new supportive housing units by 2030. A task force delivered specific recommendations regarding data & evaluation, referrals, service models, and streamlining development. Recommendations include: using a vulnerability index to target housing to certain populations; minimizing time spent waiting in shelters; implementing a holistic approach to family services; and improving community engagement for new projects.

Services provided in the 15/15 program vary based on the occupants’ needs. For example, CAMBA is a provider of housing and services that include medical treatment for chronic illness, case management, nutritional services (such as food distribution), parenting support, family economic services, and legal services. The comprehensive nature of services that go beyond medical services help individuals in supportive housing gain and maintain both stability within their lives and the ability to be productive members of their communities.

Funding for the 15/15 program comes from the City’s Department of Housing Preservation & Development. The Supportive Housing Loan Program requires that 60% of the units be set aside for homeless or disabled individuals and the remaining 40% be rented to tenants with income falling below 60% of the area’s median income. The loans are for 30 years and a maximum of $125,000 per unit. At the state level, the Empire State Supportive Housing Initiative provides funding for supportive housing. Here, applicants request funding with a maximum of $25,000 per individual, which can be used to provide rental subsidies, supportive services, building security, transportation, and education. The Supportive Housing Loan Program and the Empire State Supportive Housing Initiative are just two of the many funding opportunities available through public and private sources that providers can take advantage of for the development and operation of their supportive housing programs.

For additional resources, the Gaining Ground Information Database is a free resource featuring best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

[*] Michael Ohora, this blog’s primary author, is a first-year student at the Elisabeth Haub School of Law and a Land Use Law Center volunteer.

Jaclyn McBain Cohen is a third-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?

To subscribe to the GreenLaw Blog, please go to https://greenlaw.blogs.pace.edu/ and click on the “Subscribe” envelope.

January 26, 2022 | Permalink | Comments (0)

Thursday, January 20, 2022

Land Use, Human Health, and Equity Project, Post 35: Using Supportive Housing to Address Homelessness

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 35 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Authors: Michael Ohora and Jaclyn McBain Cohen [*]

Using Supportive Housing to Address Homelessness

Supportive housing is a form of permanent affordable housing that provides supportive services, such as “mental health, physical health, language, and cultural needs, education, employment, addiction and recovery, tenant rights and others" to individuals who are homeless, vulnerable to becoming homeless, or disabled. Supportive housing programs take the “housing first” approach, which involves addressing homelessness by placing individuals in a permanent residence before addressing other issues, such as drug addiction, physical and mental health issues, unemployment, and insufficient development of life skills. By prioritizing housing, individuals are provided a secure environment to work on their vulnerabilities rather than doing so while on the street or in a shelter. Permanent supportive housing programs achieve an occupancy retention rate as high as 98%. In contrast to the “housing first” approach, the “services first” approach involves attempting to meet the needs of homeless individuals while they are unprotected by permanent shelter. States, such as Utah, that have shifted from a “services first” approach to a “housing first” approach have seen substantial decreases in their homeless populations as individuals are given housing to provide stability from which they can begin to work on sobriety, mental health problems, job seeking, etc.

There are two main models of supportive housing: the scatter-site model and the single-site model. The scatter-site model involves an organization purchasing housing units across a variety of buildings and properties, which can include apartments, condominiums, or houses. This model allows supportive housing units to be integrated within the general community, and it allows for flexibility in the creation of supportive housing units since any number of units in one building can be purchased to serve as supportive housing. In a clustered scatter-site model, units can be purchased to form a cluster of supportive housing units within a larger property. The clustered scatter-site housing scheme forms an “economy of scale” by reducing the costs incurred by service providers to cover travel, staffing, and maintenance fees. In contrast to the scatter-site model, the single-site model involves a not-for-profit developer purchasing an entire building and using all of the units to provide supportive housing. In this model, on-site services are provided and tailored to the needs of the building’s occupants.  

Local governments can aid in the provision of supportive housing in a variety of ways. For example, Los Angeles initiated the Proposition HHH Supportive Housing Loan Program for the purpose of providing loans to developers who build supportive housing developments. This proposition was passed by voters in 2016, thereby authorizing a $1.2B bond to offer loans. The goal of the project is to build 8,000 supportive housing units. Developers work with the City to identify providers of the particular supportive services needed by the types of vulnerable tenants who will occupy the new units. The City’s requirements specify that the supported residents be “extremely low income” (up to 30% of the area median) or “very low income” (up to 50% of the median) and to be homeless or chronically homeless.

 

As another example, New York City sponsors the 15/15 Initiative through the Office of Supportive and Affordable Housing and Services. The 15/15 Initiative involves developing 15,000 new supportive housing units by 2030. A task force delivered specific recommendations regarding data & evaluation, referrals, service models, and streamlining development. Recommendations include: using a vulnerability index to target housing to certain populations; minimizing time spent waiting in shelters; implementing a holistic approach to family services; and improving community engagement for new projects.

Services provided in the 15/15 program vary based on the occupants’ needs. For example, CAMBA is a provider of housing and services that include medical treatment for chronic illness, case management, nutritional services (such as food distribution), parenting support, family economic services, and legal services. The comprehensive nature of services that go beyond medical services help individuals in supportive housing gain and maintain both stability within their lives and the ability to be productive members of their communities.

Funding for the 15/15 program comes from the City’s Department of Housing Preservation & Development. The Supportive Housing Loan Program requires that 60% of the units be set aside for homeless or disabled individuals and the remaining 40% be rented to tenants with income falling below 60% of the area’s median income. The loans are for 30 years and a maximum of $125,000 per unit. At the state level, the Empire State Supportive Housing Initiative provides funding for supportive housing. Here, applicants request funding with a maximum of $25,000 per individual, which can be used to provide rental subsidies, supportive services, building security, transportation, and education. The Supportive Housing Loan Program and the Empire State Supportive Housing Initiative are just two of the many funding opportunities available through public and private sources that providers can take advantage of for the development and operation of their supportive housing programs.

For additional resources, the Gaining Ground Information Database is a free resource featuring best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

[*] Michael Ohora, this blog’s primary author, is a first-year student at the Elisabeth Haub School of Law and a Land Use Law Center volunteer.

Jaclyn McBain Cohen is a third-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?

To subscribe to the GreenLaw Blog, please go to https://greenlaw.blogs.pace.edu/ and click on the “Subscribe” envelope.

January 20, 2022 | Permalink | Comments (0)

Tuesday, January 18, 2022

Free ABA Webinar: Wed Jan 19: A Practitioner’s Guide to Writing A Journal Article

Tomorrow, Wednesday January 19 at 12:30 Central, I am moderating an ABA panel for practitioners about writing journal articles with two wonderful panelists.  The event is free.  I hope you will join us, or perhaps recommend the event to a friend considering an article.  Here is the link to register, and here is the blurb:

As a practicing lawyer, you are constantly building on your knowledge and expertise in ways that would be of great interest to other lawyers. You would love to write essays and articles coming out of your experience, but what’s the best way to get started? Two experienced practitioners who have published in ABA publications will discuss how, why, what, and – yes – when to write. Brian Connolly, a partner at a Denver law firm, and Lesley Albritton, a legal aid lawyer, will discuss writing with Stephen R. Miller, Senior Editor of the ABA Journal of Affordable Housing & Community Development Law.

LINK TO BIOS: https://www.americanbar.org/content/dam/aba/events/affordable_housing/speaker-bios121421.pdf

January 18, 2022 | Permalink | Comments (0)

Thursday, January 13, 2022

Land Use, Human Health, and Equity Project, Post 33: Gentrification: Remedies and Consequences

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 33 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Gabriella Mickel [*]

Gentrification: Remedies and Consequences

Gentrification is defined as “the process whereby the character of a poor urban area is changed by wealthier people moving in, improving housing, and attracting new businesses, typically displacing current inhabitants in the process.” The inequities caused by gentrification in many communities are manifest. For example, the disinvestment in lower-income neighborhoods caused by redlining, racial covenants, and zoning provisions preventing property improvement resulted in dilapidated buildings, lowered real estate prices fueling development of manufacturing and industrial uses, and lowered the cost of investment in polluting infrastructure, such as highways and public works facilities. The legacy of these effects is the exposure of the residents of such neighborhoods to toxins and pollution not found in moderate- or higher-income residential neighborhoods. In fact, Black Americans are 75% more likely to live in communities where they are exposed to soil, air, and water pollution and experience a higher risk of cancer, asthma, and other life-threatening illnesses.

This is clearly an equity issue that many municipalities are interested in rectifying, but they must be careful to assess and avoid unintended consequences. One solution, for example, has been to build green infrastructure, such as parks, in these neighborhoods. It may seem as though the neighborhood would benefit from this supposed step away from the historic inequity; however, once the green infrastructure is built, gentrification and displacement can occur. Those trees and parks can cause property values to rise, gentrifiers to move in, and low-income residents to be displaced. Displaced residents are more likely to experience negative mental health effects, food deserts, less walkable streets, less access to transportation, and more exposure to pollutants.

The same cycle happens with other “solutions” to historic inequities. Reducing crime leads to higher property values. Giving school vouchers to kids in underfunded schools can encourage moderate-income parents to become gentrifiers and move into low-income neighborhoods. Increasing transit options and transit-oriented development can drive up rents and property values. Even addressing food deserts and swamps by attracting grocers, encouraging farmers’ markets, and incentivizing community gardens can result not only in food mirages, but also in gentrification.

The question thus becomes: how do we stop this cycle of inequity? Part of the answer could be leveraging the resources of gentrifiers and preventing displacement of low-income residents through land-use solutions. To prevent displacement, municipalities are building more affordable housing, preserving current affordable housing stock, and keeping residents in and returning them to their communities.

The Neighborhood Jobs Trust in Boston, Massachusetts is funded by fees paid by commercial developers with projects greater than 100,000 square feet. Boston’s zoning law requires these developers to obtain a zoning variance. To get the variance, the developers must pay a linkage fee, based on square footage, to the Neighborhood Jobs Trust. The trust supports job training for low and moderate-income residents. By creating this trust, Boston is using its land use authority to mitigate a con of gentrification in addition to displacement – the loss of low-skill jobs.

Right-to-purchase ordinances offer cities, tenants, or both with advanced notice and the right to purchase a multifamily rental property “when the owner decides to sell the property, exit the affordable housing program, or convert the rents to market rate.” These ordinances not only mitigate displacement, but they also create low-income home ownership opportunities for residents in gentrifying neighborhoods. The possibility for home ownership is especially important given that building equity is an equity issue. Homeownership is an established route to building generational wealth, yet Black Americans have a homeownership rate of 46.4% compared to 75.8% for white families. The homeownership and racial wealth gap are the legacy of slavery, segregation, redlining, and other anti-Black policies.

Washington, D.C. runs the oldest right-to-purchase programs in the U.S. via the Tenant Opportunity to Purchase Act (TOPA) and District Opportunity to Purchase Act (DOPA). TOPA gives tenants the opportunity to purchase a building when the owner decides to sell and DOPA gives the D.C. the right to purchase if the tenants do not. Tenant ownership is typically structured through the creation of a limited equity cooperative, where residents collectively own their building with resale restrictions that preserve the long-term affordability of the units. The D.C. Department of Housing and Community Development (DHCD) encourages tenants to exercise their right to purchase to stabilize neighborhoods and prevent displacement. The DHCD provides tenants with financial assistance (seed money, earnest money deposits, acquisition funding, etc.), technical assistance, and “specialized organizational and development services, to include structuring the tenant association, preparing legal documents, and helping with loan applications.”

Some municipalities are going a step further by trying not only to prevent displacement, but also to undo displacement. Local governments are using right-to-return policies to allow displaced people to move back into their communities after being pushed out by gentrification. Portland, Oregon created a right to return policy that allows tenants, mainly minorities, forced out by gentrification to move back to communities with the help of an affordable rent program. The program gives priority to displaced people via a point system that considers three generations of potential displacement.

In February 2021, Providence, Rhode Island released its Anti-Displacement and Comprehensive Housing Strategy. The strategy is a solid case study of how a municipality can address displacement and housing insecurity in the context of climate change, COVID-19, housing insecurity, and racial equity. These pandemics not only adversely affect public health, but they also do so interconnectedly. Therefore, addressing them effectively often means addressing them together. To create affordable housing, the Providence strategy recommends modifying zoning to allow more infill development (via pre-approved architectural designs that developers and property owners can use to build affordable housing on small lots), improve ADU regulations, allow for greater use of row houses, enable cluster development on large residential lots, provide density bonuses for land development projects, and creating a process to approve adaptive reuse administratively. To preserve affordable housing, the Providence strategy recommends creating a mandatory rental housing registry to facilitate code compliance inspections and creating a certificate of habitability that requires inspections every three years. To keep people in their communities, the Providence strategy recommends creating a Right of First Refusal Program to give the city an option to purchase existing income-controlled units.

For additional resources, the Gaining Ground Information Database is a free resource featuring best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

[*] Gabriella Mickel is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy

To subscribe to the GreenLaw Blog, please go to https://greenlaw.blogs.pace.edu/ and click on the “Subscribe” envelope.

January 13, 2022 | Permalink | Comments (0)

Wednesday, December 15, 2021

Crafting a state-specific land use law casebook: The example of Idaho

What does a land use law casebook look like if it is written from a state-specific point of view? 

I've thought about this a lot, given that I am a co-author on a national land use law casebook with some amazing co-authors. 

It has also been on my mind for awhile because I went to law school in California, urban planning school in California, practiced land use law in California, but have lived in Idaho for the past 10 years.  While California has a significant literature on planning, Idaho has, well, basically one treatise written by several (very good) lawyers at a local firm.  Does Idaho need anything more? 

Recently, I thought yes.  And so I produced some 1,300 pages of cases and excerpts of law review articles along the lines of what you'd find if you bought one of the national treatises.  The difference is...everything in this casebook is about Idaho.  

Consider that Boise is arguably the fastest-growing city in America, by some standards the least affordable city in America, and that the West faces unprecedented climate risks.  All of this makes the importance of state-based land use law especially important in these places.  Places like Boise, places like Idaho.  I felt this was needed, and so I wrote it.  Maybe it will be of use, and maybe it will have been a lark.  No matter, it is done (at least as far as first editions go).

Below is the table of contents on my inaugural version of the Idaho land use law casebook.  I'd love to see what others have produced in other places, and perhaps begin a conversation about what land use law looks like when we prioritize state-specific law.

The full first edition version of the Idaho land use law casebook is here (for free):  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3986648

 

 

1

2

3

4

5

6

7

8

9

10

 

 

December 15, 2021 | Permalink | Comments (1)

Tuesday, November 30, 2021

CFP: Idaho Law Review symposium on growth and housing affordability

The Idaho Law Review will be holding its annual symposium on land use and growth issues this year.  As some of you may have read in the news, Boise was recently named the least affordable city in America due in large part because of the difference between housing prices, which have grown among the fastest in the country, and local wages, which are among the lowest in the country.  I hope you will consider joining us at this year's symposium and offering some ideas for how to address rapid growth and affordability.  Feel free to reach out to me, if you'd like (millers@uidaho.edu).  Here is the call for papers from the students:

 

The Idaho Law Review invites articles and essays for its 2022 symposium, Boomtown: Growth and the Clash of Identities in the American West. The topics could include (but are not limited to) land use issues in Idaho, the effects of population growth, homelessness, issues with affordable housing, and landlord/tenant law with COVID. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Idaho Law Review welcomes essays (typically 2,000–6,000 words) or articles (typically 7,000–10,000 words).  

 
The symposium will be primarily virtual and held online April 22, 2022.  A small event will also be held in Boise on April 21, 2022.  The symposium volume of the Idaho Law Review will be published in Spring, 2022. Interested authors are encouraged to send an abstract describing their proposals to the symposium’s Chief Symposium Editor, Charlotte Cunnington, at cunn5162@vandals.uidaho.edu by December 15, 2021. Submissions of draft articles and essays are due by February 15, 2022 (with some flexibility). 

November 30, 2021 | Permalink | Comments (0)