Tuesday, May 18, 2021

Land Use, Human Health, and Equity Project, Post 11: The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

Blog No. 11 of the Land Use, Human Health, and Equity Project

 

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Chris Makowski[*]

The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic

By: Chris Makowski

INTRODUCTION

As blog no. 7 in this series emphasized, small business recovery is crucial to urban vitality and urban success. Currently, the COVID-19 pandemic threatens the existence of small businesses and their commercial neighborhoods. Even though time-limited moratoria on commercial evictions are currently in effect in some states, commercial tenants must pay any rent in arrears when the protection lifts. Tenants are further vulnerable to evictions for non-payment of rent because necessary procedural protections often are omitted in commercial leases. Unlike before the pandemic, landlords may struggle to fill vacancies as small businesses struggle to stay afloat. Because of the interconnected problems facing both tenants and landlords, both parties should consider reforming their leases to protect their mutual interests during pandemics and other unforeseen events. Municipalities can help by providing technical assistance and mediation services.

Listed below are some lease provisions that may better serve the interests of both parties during catastrophic events:  

  1. Assignment & Subletting: Many commercial leases limit rights to sublet or assign the tenancy. Provisions can be included in commercial leases to permit these opportunities subject to reasonable limitations. This allows for the addition or substitution of a new tenant who is more financially stable.
  1. Duty to Mitigate: Though rare in commercial tenancies, this provision imposes a duty on the landlord to mitigate damages against an evicted, defaulting tenant. It mandates that the evicting landlord relet the premises at fair market value or at the same rate, terminating the previous lease. Should the landlord succeed, the former tenant is not liable for lingering costs associated with the lease.
  1. Casualty: The casualty clause clarifies, expands, or modifies the tenant’s right to forgo obligations of the lease when the premises become untenable, thereby cushioning tenants from duties inherently limited by uncontrollable events. The landlord and tenant may stipulate what constitutes a “casualty,” or untenable event, and the limitations to performance. The clause should expressly consider pandemics as a triggering event. COVID-19 may render a premise untenable; thus, the clause should relieve the tenant from obligation to pay rent for the untenable duration or allow the security deposit to cover missed rent.
  1. Early Termination: Under this clause, parties may “terminate the lease either at will or on the happening of some contingency.” When based upon a contingency, “[t]he right reserved must be exercised in good faith and upon fair grounds.” When at-will, the clause may confer equal termination power to the parties without requiring good faith. Nevertheless, if unambiguous in the agreement, the right to terminate may denote whatever is mutually beneficial.
  1. Force Majeure: The force majeure clause stipulates the events or occurrences that excuse the tenant’s or landlord’s performance under the lease. However, courts interpret the clause narrowly, limiting its applicability to the specific circumstances stipulated in the provision.  Leases that do not include terms like “pandemic” or “government closure of business due to an outbreak” within their force majeure clauses do not excuse obligations.
  1. No Late Fees: This clause precludes a tenant from incurring late fees when rent is paid later than the date stipulated in the lease. Considering the longevity of the pandemic, and its continued restrictions, a tenant is likely to be late. Adding a “no late fees” provision eliminates the further burden of late fees for failure to make payments on time due to circumstances beyond the tenant’s control.
  1. Mediation: A recovery lease should provide that disputes concerning non-payment may be resolved by mediation. This allows the mediator to work with the parties to form a mutually beneficial agreement, including lease reformation, given the realities of the pandemic.
  1. Notice and Cure: This standard clause can be updated, considering the pandemic, to allow much longer periods for notice of defaults and the tenant’s opportunity to cure the default prior to the termination of the tenancy. Such a provision will give the tenant a reasonable time to assess options and to exercise the option, for example, of  choosing to pursue mediation to resolve the dispute.
  1. Redemption: Applicable in some situations, a redemption clause can permit a tenant to recover economically and reclaim the premises within one year of being evicted. For example, under New York’s governing statute, the tenant must pay the landlord all rent in arrears incurred at default, and the lease must have expired with more than five years remaining in the term.
  1. Rent Deferral: This provision allows a tenant to pay a reduced rent for a stipulated period, deferring the reduced rent for payment later. When “read fully and fairly,” this clause is viewed “as an expression of the parties’ mutual understanding that rent ‘shall be paid’ in the modified manner.” 
  1. Rent Abatement: This provision reduces the rent to be paid during the period of exigency created by an unforeseen event. Common in casualty clauses, the clause should be extended to cover the COVID-19 pandemic; otherwise, a separate clause can abate rent for a period specific to the pandemic.
  1. Renewal/Lease Extension: The parties can negotiate an extension of the lease term to provide a realistic opportunity for payment of deferred or abated rent. “[O]nce the option is exercised, the original lease is deemed a unitary one for the extended term and a new lease is not necessary.” Conversely, the clause can permit modifications to the original lease; these are subject to mortgagee approval.
  1. Quiet Enjoyment: This covenant, often enumerated in leases, can prevent a landlord or its agent from interfering with a tenant’s lawful use of the leasehold through a constructive or unlawful eviction.  The lease may be structured to permit nonpayment evictions only through summary proceedings, after failing to reach an agreement via mediation.

CONCLUSION

To respond to the unanticipated economic impacts of the pandemic, municipalities and attorneys can use this period to rethink and reform lease provisions to prevent evictions and allow tenancies to continue under terms favorable to both landlords and tenants. In the case of small businesses and their landlords, this provides an opportunity to update the standard commercial lease to provide defenses and procedures that the common law and state legislation have not provided.  The pandemic is not over, there is no guarantee that we will reach herd immunity, climate change damage is ever more prevalent, and there is growing evidence of new variants. Reform of the standard small business lease is called for.

  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?

May 18, 2021 | Permalink | Comments (0)

Land Use, Human Health, and Equity Project, Post 10: Urban Heat Island and Equity: What Can Local Governments Do?

 

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 10 of the Land Use, Human Health, and Equity Project

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Rhea Mallett
[*]

 

Urban Heat Island and Equity: What Can Local Governments Do?

 

Extreme heat is a national public health emergency that kills more than any other weather-related event and will worsen as climate change increases global temperatures.   Extreme heat disproportionately impacts communities that are non-white, low income or have suffered historically racist disinvestment and urban planning practices.  Urban planning and zoning created UHIs, and land use regulations can provide solutions for mitigating their impacts.

UHIs experience higher air temperatures than surrounding areas. These ‘islands’ of higher temperatures all contain mostly man-made impervious surfaces that absorb and retain heat, such as buildings, rooftops, roads, sidewalks, parking lots, and courtyards. They lack vegetation such as trees, grass, and shrubs. The impervious surfaces (i.e., asphalt and concrete) capture and intensify heat during the day and slowly release the absorbed heat back into the air at night, resulting in higher nighttime temperatures that prevent residents from getting relief. The heat differential between a UHI and a more affluent neighborhood nearby can be as high as 27°F.

U.S. localities, large and small, are creating solutions through land-use regulations that control the causes and mitigate the impacts of UHIs. The focus of these strategies and links to examples follow:

Trees are “air conditioning for cities,” as air temperature under trees can be 20-45°F cooler than a nearby unshaded area. Trees block solar radiation, filter particulates, and absorb pollutant gases. Trees also provide critical “evapotranspiration” benefits, converting the sun’s energy into water vapor which cools the air and utilizes solar energy that would have otherwise created more heat.  Localities that prioritize increasing tree canopy have implemented laws that force developers to preserve trees, ensure tree density, plant minimum trees per lot, install trees shading sidewalks, protect tree roots during construction and have even created enforcement provisions that require fines, bonds, and five-year waiting periods to ensure the safety of trees.  Extending tree preservation to private property owners reinforces the philosophy that mitigation by one person helps everyone. Tree preservation funds for situations where compliance is difficult allow localities to redirect resources to areas where trees are most needed.

Green Roofs are 30° to 40°F cooler than conventional roofs. They also redirect solar energy through evapotranspiration and help with air pollution.  Green roofs also keep buildings cooler, reducing reliance on air conditioning which increases energy demand and pollution. Requiring green roofs on large developments has been so successful that at least one locality requires 100% green roof compliance.  Localities offer incentives for green roofs, such as zoning density bonuses, increased building height, and streamlined permitting.

Other cool roofing materials can be used alone or in conjunction with green roofs.  Cool roofing materials combine a higher reflectivity (albedo) as well as emissivity for heat. A Solar Reflectance Index (SRI) measures the surface’s ability to reflect heat, which can be used to set minimum standards.  Many localities will provide some flexibility, allowing for either 50% green roofs or 75% SRI,  a combination of both for 100% of roof covering, or a scoring system that allows developers to pick and choose different green infrastructure. 

Pervious or cooler materials are also mandated for non-roof hardscapes, such as paths, sidewalks, courtyards, and pedestrian right of ways.  A commonly seen ordinance requires developers to ensure that 50% of their ‘non-roof hardscape’ are either shaded or utilize cooler material, such as pavers, porous concrete, or other pervious surfaces

Parking lots and spaces are major sources of heat absorption.  Heat mitigation strategies include shading percentages, minimum tree amounts based on parking lot size, or the use of impervious materials.  Some localities reduce parking spaces required by allowing shared parking or reducing requirements to zero.  And at least one city upended the parking paradigm for developers by changing from parking allowance minimums to maximums.

Purposeful planning will also mandate open spaces, incentivize optimal landscaping, and provide shade to promote walkability. The effectiveness of each planning measure depends on climate, landforms, and building densities.  However, all planning must confront the role prior urban design has played in today’s inequities and prioritize the most heat vulnerable in its land-use solutions mitigating extreme heat.

[*] Rhea Mallett is an LLM candidate at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.
Jessica Roberts is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first-year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

 

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

 

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

May 18, 2021 | Permalink | Comments (0)

Alterman & Pellach - Regulating Coastal Zones, International Perspectives on Land Management Instruments

Rachelle Alterman and Cygal Pellach are editors of a newly published collection entitled, "Regulating Coastal Zones:  International Perspectives on Land Management Instruments."  Sample chapters may be downloaded here.  An abstract is below (any typos are mine):

Regulating Coastal Zones is the first book to address the legal-regulatory aspects of coastal land management from a systematic cross-national comparative perspective.  The book encompasses fifteen advanced-economy countries, selected to represent three groups of legal contexts:  Eight are Mediterranean countries, most are signatories to the 2008 Mediterranean Protocol in Integrated Coastal Zone Management -- a treaty expected to be binding in international law.  Eleven countries are members of the EU (of which six are also included in the Mediterranean group).  They are parties to the EU Directive on Coastal Zone Management and its non-binding Recommendation on ICZM.  Additionally, two federal countries are included, located in different global zones.  The findings expose a surprisingly large variety of legal-regulatory instruments and practices, with highly differing degrees of effectiveness.  Although some countries have made significant progress towards implementing good ICZM principles, others fall far short.  The supra-national legislation and policies are shown to have had only limited influence.  Hopefully, the book's findings will encourage cross-national learning toward adoption of more effective legal-regulatory instruments, especially those necessary to reshape land policy and private real-property rights.  These are necessary to meet the challenges of coastal sustainability and resilience in the face of climate change.

 

May 18, 2021 | Permalink | Comments (0)

Thursday, May 6, 2021

Land Use, Human Health, and Equity Project, Post 9: Urban Heat Islands and Equity

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 9 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Rhea Mallett[*]

Urban Heat Islands and Equity

Mass protests last summer demonstrated an increased awareness of the institutional racism pervading our criminal justice system. But what about the codified racism that is inherent in the building of America? It is no accident that the majority of people living in the most polluted neighborhoods of American cities and towns are predominantly low-income and non-white. Recent research demonstrates that our federal government’s ‘redlining’ of neighborhoods based on race is partially responsible for the great wealth disparity between the white and black population in the United States today. This data shows that redlining is also linked to greater vulnerability to the effects of climate change, including premature death and serious illness. While the more affluent live with more open space, trees, cleaner air, and security, those who have disproportionately shouldered the burden of development are now at greater risk from climate change and extreme weather events.

Neighborhoods that were redlined in the 1930s were identified as hazardous financial risks for mortgages and financial investment simply because black people lived in them. While redlining wasn’t the beginning of racial segregation, it is responsible for the systemic underinvestment in targeted neighborhoods by banks and mortgage lenders. The original Federal Housing Administration (“FHA”) redlined maps show that the neighborhoods deemed hazardous already had greater amounts of impervious surfaces (pavement, structures) and pollution (toxic air and noxious odors) than the white neighborhoods that were given the green light for financial investment. The underinvestment in redlined neighborhoods led to deteriorating conditions and low property values, which brought highways, manufacturing, and private industry to these areas. The neighborhoods that were originally redlined became overwhelmingly concrete and increasingly polluted.

While it was known that impoverished neighborhoods with mostly non-white populations were hotter than nearby wealthier neighborhoods, recent research has linked redlining to present-day unequal exposure to extreme heat. In a study of 108 formerly redlined neighborhoods, nearly all of them are now between 5 to 12 °F hotter than non-redlined neighborhoods nearby. People living in these urban heat islands—where impermeable surfaces and lack of vegetation cause the ambient air to be hotter than surrounding areas — are at increased risk during extreme heat events.

Heat is the nation’s deadliest weather disaster, causing as many as 12,000 deaths annually. Every 1°F temperature increase during a heatwave increases the mortality rate by 2.5% to 5%. Extreme heat causes and exacerbates many illnesses, including heatstroke, cardiovascular and kidney disease, and respiratory problems. People who are more vulnerable to heat-related illness and death include the elderly, children, the homeless, and those with underlying medical conditions. Air quality also suffers from heat-induced ozone; the increased reliance on air conditioning expands energy use, further exacerbating air pollution.

Rapid temperature increases from climate change have made the United States hotter overall and increased the number of extreme heat events. Without a significant curtailment of greenhouse gas emissions, temperatures could rise by 5°F by mid-century, with an anticipated 20 to 30 more days of extreme heat annually in some parts of the country.

Mitigating the impact of heat on formerly redlined neighborhoods is critical to the health of those living in low-income, socio-economically disadvantaged communities. An effective solution necessitates government resources, public/private partnerships, financial support, public education, and a commitment to remedy the situation from all levels of government.

At the Pace Law Land Use Center, we have identified how municipalities can reduce the harmful impacts of heat by using their delegated land use regulatory authority. By using these strategies, local governments can reduce the impact that extreme heat events will have on the population in lower income neighborhoods as earth’s temperatures increase.

This blog is accompanied by another titled: Urban Heat Island and Equity: What Can Local Governments Do? That blog will describe various measures localities can immediately implement to mitigate the impact of extreme heat events, which is fast becoming a national public health emergency targeting already marginalized communities.

[*] Rhea Mallett is an LLM candidate at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.
Jessica Roberts is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first-year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

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

May 6, 2021 | Permalink | Comments (0)

Sunday, April 25, 2021

Land Use, Human Health, and Equity Project, Post 8: Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward

Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

Blog No. 8 of the Land Use, Human Health, and Equity Project[*]

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Gina Hervey[**]

 

[This is the eighth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog.]

 

Since the pandemic, 10% of families with children under five have reported insufficient food access. Increasing food security is a highly interdisciplinary endeavor and local land use laws can play a key role. Zoning ordinances can allow and incentivize a range of food sources in or nearby food deserts by using flexible food purveyor definitions. Zoning ordinances can also incentivize pop-up eating facilities and food trucks and, as discussed in this blog, promote local food production.

According to the USDA’s most recent food access report, about 12% of the US population lived in a food desert as of 2017. Food deserts, as described by the USDA, are census tracts that are either low income or low-access. A low-income tract is where the population poverty rate is above 20%, or the median family income is below 80% of the state or metropolitan area’s median family income. A low-access tract is one in which 33% of the population lives more than a mile (in urban areas) and more than 10 miles (in rural areas) from a supermarket.

Use explicit agriculture terms in the zoning code to permit food production.  Many zoning codes speak generally of gardening or urban agriculture. However, providing explicit and detailed definitions of terms, particularly for agriculture processes, helps clarify what is permitted. This can help potential urban farmers engage in food production and encourage established farmers to take advantage of more farming-friendly zoning allowances. Ultimately, this increases fresh, local, and affordable food production and access.  The Austin, Texas Code of Ordinances has a section specifically defining agricultural uses. The code defines where processes such as aquaponic, horticulture, and indoor crop production are permitted and what is meant by each term. The national Healthy Food Project created a draft guide for municipalities to assist in articulating agricultural terminology for zoning codes.

Allow temporary and small structure buildings for agriculture. Allowing greenhouses, hoop houses, and other smaller structures intended for urban/semi-urban farming and small animal husbandry is crucial for the efficient use of farming spaces. Without flexible provisions for such structures, landowners and their farming tenants or partners are unable to accommodate various, higher-yielding crops and maintain appropriate livestock on their urban land without risking code violations. Philadelphia’s zoning specifically allows agricultural structures of varying sizes depending on the lot size. The city further waves all permitting requirements for temporary structures of 180 days or less. This removes obstacles for farmers who may want a temporary greenhouse for winter crops or small hoop houses during a frost season.

Allow the on-site sale of produce. Allowing the on-site sale of produce significantly improves food access for consumers and helps food producers access markets without costly transportation and “middlemen” fees. While allowing farming in more zones is key, it is significantly more beneficial to also permit the sale and distribution of that farmed food on-site. Kansas City’s Zoning Code (section 88-312-02 allows the direct sale or donation of “whole, uncut fresh food and/or horticultural products grown in home gardens, community gardens, and land managed under a community supported agriculture model.” Clarifying zoning codes regarding food sales significantly decreases uncertainty and concern about violating zoning laws and encourages more urban agriculture and community-based food secure cities.

Support urban agriculture coalitions. Taking the above steps enables community groups to succeed in their efforts to mitigate the negative health impacts of food deserts. But above all else, effective amendments to zoning requires listening to the community. By better understanding a community’s unique concerns regarding limits on their ability to grow, sell, and access fresh food, municipal planners can prioritize zoning reform according to those specific concerns. Understanding a community’s unique situation, identifying where zoning can help create change, and enacting supportive legislation promotes greater food equity nationwide. Oakland, California, has a thriving Food Policy Council to effectively voice such food-access concerns to their city. Key nonprofit and community members meet to discuss, advocate, or protest proposed legislation regarding food access and urban farming to ensure the needs of food-vulnerable community members remain at the forefront of the zoning and policy-setting process.  

 

[*] The previous blogs in the series are listed here:

  1. https://greenlaw.blogs.pace.edu/2020/10/21/reframing-sustainability-introducing-the-land-use-human-health-and-equity-project/
  2. https://greenlaw.blogs.pace.edu/2020/10/22/planning-for-public-health-a-new-beginning-for-land-use-law/
  3. https://greenlaw.blogs.pace.edu/2020/11/04/the-role-of-density-in-combatting-climate-change-and-covid-19/
  4. https://greenlaw.blogs.pace.edu/2020/11/19/novel-coronavirus-claims-implicate-age-old-property-rights-questions/
  5. https://greenlaw.blogs.pace.edu/2020/11/24/state-local-covid-related-emergency-powers-individual-rights/
  6. https://greenlaw.blogs.pace.edu/2020/12/22/covid-related-land-use-regulations-and-judicial-deference/
  7. https://greenlaw.blogs.pace.edu/2021/04/01/mediation-of-eviction-disputes-may-hold-the-key-to-the-survival-of-small-businesses/

 

 

[**] Gina Hervey is a first-year student at the Elisabeth Haub School of Law and Research Assistant for the Land Use Law Center’s Equity Division.   

Jessica Roberts is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

Jillian Aicher is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

Colt Watkiss is a first-year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

 

 

April 25, 2021 | Permalink | Comments (0)

Tuesday, March 2, 2021

CFP - What’s Next for Affordable Housing under the Biden Administration?

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

What’s Next for Affordable Housing under the Biden Administration?

Drafts due June 15, 2021

A new presidential administration always brings policy changes; in this cycle, the contrast between the Biden administration and the previous Trump administration almost certainly means those policy changes will be substantial.  This issue of the Journal invites commentary on any aspect of the transition.  This could include topics such as:  proposals for policies or goals the new administration should pursue; how private-sector housing providers should navigate and plan for changes between administrations; a review of new agency policy changes thus far; new programs that should be launched, and old programs that should be continued or revised.

For this issue, the Journal seeks wide participation and especially welcomes shorter essays (2,000–3,000 words).  In addition, the Journal will also continue to seek general essays (typically 2,500–6,200 words) or articles (typically 7,000–10,000 words) related to the Journal’s traditional subjects: affordable housing, fair housing and community/economic development.

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposal as soon as possible.  Submissions of final articles and essays are due by June 15, 2021. Please email abstracts and final drafts to the Journal’s Editor-in-Chief, Stephen R. Miller, at millers@uidaho.edu. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

March 2, 2021 | Permalink | Comments (0)

Monday, February 22, 2021

Maine Law Seeks Visiting Property Law Prof

From Sarah Schindler...

The University of Maine School of Law, in the coastal city of Portland, Maine, invites applications for two full-time Visiting Professor of Law positions to teach Criminal Law or Property Law for the 2021-2022 academic year. The visiting appointments may be at the Professor, Associate Professor, or Assistant Professor level. Successful candidates will be eligible to apply for a tenured or tenure-track position starting in the 2022-2023 academic year. Salary will be commensurate with qualifications and experience. Members of minority groups, women, and others whose background would contribute to the diversity of the Law School are encouraged to apply.

Review of applications will begin immediately. To ensure full consideration, we encourage you to submit materials by March 19, 2021. You may email any questions to mainelawsearch@maine.edu. Applications, however, must be submitted via HireTouch. Position(s) will remain open until successful candidates are hired.

Link: https://maine.hiretouch.com/job-details?jobID=67200&job=visiting-professor-of-law-2-positions&collection=true

February 22, 2021 | Permalink | Comments (0)

Thursday, February 18, 2021

Rocky Mountain Land Use Institute 30th Anniversary conference -- online!

It's still the best conference I go to all year...RMLUI turns 30.

From Susan Daggett:

As Rocky Mountain Land Use Institute celebrates its 30th year, the Institute will present its first ever virtual Western Places, Western Spaces land use conference -- this year scheduled to begin on March 4 and continue every Friday for the month of March.    This year’s program will focus on bouncing forward from the COVID era to build thriving, healthy, and equitable communities and will feature sessions on housing, transportation, and the public realm….but with a focus on what we’ve learned from the pandemic and where we go from here.   The final week of the conference will include (on Thursday, March 25th) a practice-focused Workshop on Housing Affordability and Zoning, which will consider the causes and effects of the current housing affordability crisis in Colorado (and elsewhere), will examine the role of zoning in limiting the development of affordable forms of housing, and will consider legal and policy reforms that can help remove barriers and increase the availability of workforce and “missing middle” housing.    This workshop is being made available at no cost, thanks to underwriting by Gary Community Investments.

To learn more about the conference and to register, visit the RMLUI conference page.

Download RMLUI WPWS Flyer (002)

February 18, 2021 | Permalink | Comments (0)

Wednesday, February 10, 2021

ABA J of Affordable Hous. & Cmty. Dev. L - Apply to be next Editor-in-Chief

My term as Editor-in-Chief of the ABA’s Journal of Affordable Housing & Community Development Law is coming to a close and we are seeking a new EIC to begin in August.  The announcement is below.  Please feel free to contact me if you are considering applying and have questions. 

ABA Journal of Affordable Housing & Community Development Law

Accepting Applications for Next Editor-in-Chief

The ABA’s Journal of Affordable Housing & Community Development Law is seeking applicants for its next Editor-in-Chief (EIC).  The EIC role is a two-year commitment to oversee the production of three issues per year.  The EIC works with the Journal’s editorial board to determine themes; to solicit articles and essays; and to produce the Journal’s departments, which include Heard from HUD, the Literature Digest, Letters to the Regulators, organizational profiles, book reviews, and more.

The next EIC will begin in August, 2021 with work towards the production of the Winter, 2021 issue. 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

To apply, please submit a short statement of interest (1-2 pages) and a resume or CV to the Journal’s Editor-in-Chief, Prof. Stephen R. Miller, at millers@uidaho.edu. Feel free to contact Prof. Miller if you have any questions about the EIC role prior to submitting an application.

February 10, 2021 | Permalink | Comments (0)

Friday, January 29, 2021

Mandelker: Billboards, Signs, Free Speech, and The First Amendment

Dan Mandelker has just posted Billboards, Signs, Free Speech, and The First Amendment on SSRN.  View the article here; the abstract is below:

This Article reviews the competing demands free speech law makes when applied to sign and billboard ordinances. It describes the free speech doctrines that apply, explains ambiguities and conflicts, and makes recommendations for sign regulations that can avoid constitutional problems. The Article first explains how state courts decided the constitutionality of billboard controls before free speech law applied. It then describes the litigation problems municipalities face in sign litigation, and considers the overbreadth and severability doctrines that litigants can use to strike sign ordinances down. Ordinances that regulate signs typically regulate commercial speech. The Article explains the criteria the Supreme Court adopted for laws that regulate commercial speech, and how the Court liberally applied these criteria in a case upholding an ordinance that prohibited billboards. Lower court cases that applied this case are discussed next. They followed the Supreme Court’s approach in billboard cases but sometimes added new requirements. The Article then describes the free speech time, place, and manner rules that are an alternative to commercial speech doctrine, and how courts apply these rules to sign ordinances. Regulations for digital billboards are discussed next. The Article concludes by discussing the constitutional protections courts provide for noncommercial speech, and the constitutional restrictions they require for signs that regulate content.

January 29, 2021 | Permalink | Comments (2)

Wednesday, January 13, 2021

ABA Affordable Housing Student Writing Competition - Entries Due March 25

 
Forum on Affordable Housing‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
 
 
American Bar Association.
 
 
Forum on Affordable Housing and
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January 13, 2021 | Permalink | Comments (0)

Tuesday, December 22, 2020

Land Use, Human Health, and Equity Project, Post 6: COVID-Related Land Use Regulations and Judicial Deference

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 6 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

COVID-Related Land Use Regulations and Judicial Deference

[This is the sixth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog.]

As the COVID-19 pandemic continues, questions persist regarding the limits on state and local authority to regulate. The Land Use, Human Health, and Equity project has reviewed cases considering state and local emergency powers in relation to property rights and land use and analyzed recent individual constitutional rights issues arising during the public health crisis. Many COVID-related cases have addressed whether and to what extent the deferential Jacobson precedent should factor into consideration of various constitutional claims, including Freedom of Religion analyses. The Supreme Court’s November 25, 2020 decision in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily enjoined COVID-related occupancy limits on religious gatherings, using traditional strict scrutiny analysis. The majority opinion implicitly found Jacobson inapplicable to First Amendment claims. However, Jacobson’s deferential review will likely remain the rule that courts use to evaluate restrictions on land use such as occupancy requirements, partial or temporary closures, moratoria and other limits on the use of land by secular owners and operators.

            The 1905 case Jacobson v. Massachusetts upheld a state law requiring vaccination as a valid exercise of state police power during a smallpox outbreak. As plaintiffs across the country brought cases challenging COVID-related executive orders imposing stay at home restrictions, gathering limits, and business closures, many courts cited Jacobson as a basis for exhibiting significant deference to state legislatures, executives, and public health authorities. In South Bay United Pentecostal Church v. Newsom, the Supreme Court declined to enjoin a California Executive Order that plaintiffs claimed discriminated against religion, and Chief Justice Roberts’ concurring opinion cited Jacobson to emphasize judicial deference to “politically accountable officials of the States.” In Legacy Church v. Kunkel, a New Mexico District Court cited Jacobson and Chief Justice Roberts’ South Bay concurrence in denying an injunction of a public health order limiting religious gatherings, stating, “[a]ctivities’ relative danger regarding COVID-19 presents an empirical question on which unelected judges, according to the Supreme Court, are not well-suited to opine without more extensive factual findings than are present here.”

In the Roman Catholic Diocese of Brooklyn case, the Supreme Court enjoined enforcement of a COVID-related executive order limiting religious gatherings to 10 people in red zones and 25 in orange zones. The majority opinion did not mention Jacobson in considering plaintiffs’ likelihood of success on the merits but rather used strict scrutiny. While the majority recognized “[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest,” it found the limits would likely fail to meet strict scrutiny as they were “far more restrictive” than those in South Bay and not narrowly tailored. Justice Gorsuch’s concurring opinion explicitly rejected Jacobson’s applicability to First Amendment cases, asserting Jacobson “involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.”

While the Diocese opinion will have impacts on lower court analyses in COVID-related religious freedom cases, neither the majority opinion nor Justice Gorsuch’s concurrence overrules Jacobson or limits judicial deference for claims that would normally receive rational basis review. Therefore, the decision will not likely weaken the deference courts have long afforded land use regulations, business limits, and rent control ordinances in emergency and non-emergency contexts. For example, local regulations requiring business closures compare to the local laws prohibiting a brick kiln and livery stable upheld as valid exercises of police power in the 1915 Supreme Court cases Hadacheck v. Sebastian and Rienman v. Little Rock. Current state designation of essential and nonessential businesses, based on public welfare considerations, echoes Virginia’s decision to destroy Cedar trees to save apple orchards, which the Supreme Court upheld as reasonably based on social policy concerns in the 1928 case Miller v. Schoene. Profit adjusted recovery commercial leases, or “percentage rent” agreements adopted in response to COVID-19, are similar to the San Jose rent control ordinance upheld as a rational police power exercise in Pennell v. City of San Jose because both aim to protect landlords’ and tenants’ financial interests in emergency situations. COVID-related eviction moratoria and temporary closures are akin to the 32-month development moratorium upheld in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, a case in which the Supreme Court held the temporal suspension of property rights is not a taking. Therefore, while the Diocese opinion will control Free Exercise and other strict scrutiny claims, and debates about the proper role of Jacobson in COVID cases may continue, the case will not likely alter traditional deference to state police power in land use decision-making.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

December 22, 2020 | Permalink | Comments (0)

Friday, December 18, 2020

CFP: Housing in Rural Communities - ABA J of Affordable Housing & Community Development Law

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

Housing in Rural Communities

Drafts due March 1, 2021

The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays on issues related to affordable housing and community development in rural communities.  Rural housing issues are complicated and often involving multiple agencies and jurisdictions; they are also often overlooked in favor of the more obvious needs presented in urban areas.  But the housing issues facing rural areas can be daunting.  For instance, the USDA Section 515 program, once the leading source of rural housing funds, has been cut by 95% over the last few decades, and no new housing has been built under that program since 2012.  What should be done now to address housing issues in rural communities?  How do the policy needs of rural communities differ from urban areas?  How are specific rural communities, such as farm workers or those living on Native American reservations, affected by rural housing issues? 

For this issue, the Journal seeks wide participation and especially welcomes shorter essays (2,000–3,000 words).  In addition, the Journal will also continue to seek general essays (typically 2,500–6,200 words) or articles (typically 7,000–10,000 words) related to the Journal’s traditional subjects: affordable housing, fair housing and community/economic development.

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposal as soon as possible.  Submissions of final articles and essays are due by March 1, 2021. Please email abstracts and final drafts to the Journal’s Editor-in-Chief, Stephen R. Miller, at millers@uidaho.edu. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

December 18, 2020 | Permalink | Comments (0)

Wednesday, November 25, 2020

Mandelker & Alexander: Minority Discrimination Through Popular Vote in the Land Use Process

Dan Mandelker and Trevor Alexander have posted Minority Discrimination Through Popular Vote in the Land Use Process on SSRN.  Here is the abstract:

Voter participation in the land use process can discriminate against minorities. Assume a city council approves an amendment to the zoning ordinance that authorizes an affordable housing project. The amendment attracts opposition because the project will be open to minorities. Voters who oppose the project place a referendum on the ballot, an election is held, and the amendment is rejected by popular vote. Similar problems arise when voters adopt a constitutional or city charter amendment that bars effective action to prevent minority discrimination. Assume a city adopts an inclusionary housing program that requires developers to provide affordable housing and prohibits minority discrimination. Voters place an initiative on the ballot that would amend the city charter to prohibit inclusionary housing programs, an election is held, and they adopt the charter amendment.

Initiatives and referenda like these are facially neutral but raise minority discrimination problems, which the Supreme Court considered in a series of cases. Its decisions are mixed, and it rejected initiatives that had racially discriminatory impacts in some cases. The constitutional basis for these cases was not always clear, and some preceded the critical holding in Washington v. Davis that proof of racial discrimination under the Fourteenth Amendment requires proof of discriminatory intent. The Court changed direction in a recent case, where a plurality upheld an initiative that prohibited affirmative action in higher education.

Commentary suggests that cases holding initiatives unconstitutional applied a political process doctrine based on a famous footnote in U.S. v. Carolene Products Co. In that footnote, Justice Stone asked “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” The footnote’s application to the land use process is clear. In the examples at the beginning of this article, a referendum or an initiative rejected a decision made by legislative representatives, and curtailed a political process used to protect minorities. Rezoning for housing available to minority groups was displaced by popular referendum, and an initiative rejected a legislative program that benefited minorities.

The political process doctrine has two prongs. The first prong requires that an issue that raises a political process problem must be minority sensitive “in that it singles out for special treatment issues that are particularly associated with minority interests.” The second prong requires a showing that voters removed a decision associated with minority interests to a higher level of government, where it was insulated from change except through change at the higher level. A mere repeal of protective legislative action does not satisfy this prong. There must be repeal plus a modification of the normal political process for making political decisions. An initiative can accomplish this change.

Supreme Court cases that rejected initiatives because they were racially discriminatory did not explicitly embrace or explain a political process theory, but acceptance of this theory is implicit. A recent plurality decision by the Supreme Court, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, damaged these early decisions, damaged judicial protection against racial discrimination by popular vote, and rejected the political process theory. We begin with Supreme Court cases, discussed in Schuette, that invalidated racially discriminatory initiatives. We then discuss Schuette, and what it means for the future of racial plebiscites as they affect the land use process. We then discuss two Supreme Court cases not discussed in Schuette where the Court upheld racially discriminatory initiatives, and what these cases mean for the Schuette decision.

November 25, 2020 | Permalink | Comments (0)

GMU Law Podcast: The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law

This just in from Donald Kochan, which I think might interest some readers...

Law & Economics Center, George Mason University Antonin Scalia Law School
Civil Justice Fest: A Month of Dialogues On the Most Pressing Civil Justice Issues:

The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law


Trevor S. Cox, Counsel, Hunton Andrews Kurth LLP 
John Culhane, Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University Delaware Law School 
Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute


Moderator: David J. Porter, Judge, US Court of Appeals for the Third Circuit 

November 25, 2020 | Permalink | Comments (0)

Land Use, Human Health, and Equity Project, Post 5: State & Local COVID-related Emergency Powers: Individual Rights

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 5 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

State & Local COVID-related Emergency Powers: Individual Rights

 

[This is the fifth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog.]

The pandemic has fostered many cases challenging emergency powers of government to limit or control personal behavior. The judicial standards used and the outcomes have not been uniform, but they inform future public health and climate change land use planning. The individual rights claims vary, covering freedom of religion, free speech and assembly, takings, right to travel, right to abortion, and the right to work, among others. An important threshold issue in these cases is whether the deferential Jacobson v. Massachusetts standard will apply or whether traditional constitutional principles will govern. 

In the 1905 case Jacobson v. Massachusetts, the Supreme Court upheld Massachusetts’ vaccination law during a smallpox outbreak and affirmed the defendant's guilty verdict for failing to comply. The court stated, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” It then exhibited significant deference to the public health statute due to the smallpox emergency. District courts, Circuit Courts, and even the Supreme Court (Chief Justice Roberts, concurring in South Bay United Pentecostal Church v. Newsom) have cited Jacobson’s deferential standard when considering COVID-related orders’ restrictions on individual rights. Others, however, reject that Jacobson deference should apply and instead employ more recent constitutional principles and standards of scrutiny. 

  • Illinois Republican Party v. Pritzker: The Seventh Circuit declined to issue a preliminary injunction for a COVID-related executive order, which Plaintiffs argued violated free speech. When considering the order’s “overall validity,” the court found Jacobson applicable, stating, “[a]t least at this stage of the pandemic, Jacobson takes off the table any general challenge to EO43 based on the Fourteenth Amendment's protection of liberty. Like the order designed to combat the smallpox epidemic, EO43 is an order designed to address a serious public-health crisis.”
  • County of Butler v. Wolf: A Pennsylvania district court declined to apply Jacobson to analyze the constitutionality of several executive orders and instead used ordinary scrutiny standards. The court found the governor’s and health commissioner’s orders – imposing gathering limits, stay at home requirements, and business closures –unconstitutional. 

While precise litigation risks surrounding emergency laws (regarding separation of powers, scope of authority, and individual rights claims) remain unclear, some general takeaways can be discerned. First, many courts apply Jacobson deference when analyzing whether COVID-related executive orders violate constitutional rights. When Jacobson is not applied, many courts uphold orders as furthering a compelling government interest, but some strike down the orders as not narrowly tailored or arbitrary (depending on the order itself and the constitutional standard used). Second, state actors must pay close attention to procedural requirements set out in emergency laws (such as rulemaking procedures and declaration timelines). Third, local public health actions (grounded in public health, not emergency, legislation) will play an important role when planning for local land use measures. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

November 25, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

Land Use, Human Health, and Equity Project, Post 4: Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 4 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

[This is the fourth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

New legal challenges to COVID-19-related government actions, including mask mandates and business closures, address old questions: How far can the police power be stretched to protect the public against dangers? To what extent do property rights limit governmental actions? When does diminution of existing property rights require compensation? Do localities have implied emergency powers, do they need specific authorization, and can they supplement state orders? What rights do property owners, landlords, and tenants have during crises?

Common law principles and a century’s worth of U.S. Supreme Court opinions balancing property rights and public interests contribute to a better understanding.

Blackstone’s Commentaries demonstrate that even under early common law, government regulation could limit personal liberties and property rights.  Many Supreme Court cases build on this concept through Due Process and Takings jurisprudence.

1922, Penn Coal v. Mahon: In this seminal Supreme Court case, a property owner sought to enjoin mining under his house based on a Pennsylvania statute regulating coal mining. The Court denied the injunction, finding the statute may have constituted a taking. Before this case, we did not know police power regulations could constitute “regulatory takings.” Pre-1922 challenges to property regulations were based on Fifth and Fourteenth Amendment Due Process claims that laws did not reasonably protect the public interest. Property “takings” are different. As Justice Holmes declared in Penn Coal, when a regulation goes too far, it can constitute the equivalent of a physical taking, which the Fifth and Fourteenth Amendments prevent unless implemented for a public purpose and accompanied by just compensation. The Penn Coal Court held Pennsylvania’s mining restriction law could not be sustained as a police power exercise.

1906, Strickley v. Highland Boy Gold Mining Co.: 16 years before Penn Coal, Justice Holmes wrote Strickley, limiting a property owner’s ability to enjoin a Utah police power law. The plaintiff challenged the state’s action condemning an easement over the plaintiff’s property and conveying it to a private mining company. Justice Holmes upheld the challenged legislation, finding that the state’s action taking private property and conveying it to another private party was not unconstitutional.

1915, Hadacheck v. Sebastian and Rienman v. Little Rock: These cases address the legitimacy of using police power to prevent property use that constitutes a nuisance or causes injury. The Supreme Court validated property restrictions of a brick kiln and livery stable, land uses it found injurious to the public health and safety.

1928, Miller v. Schoene: The Miller Court found the Takings Clause did not require Virginia to compensate an owner of cedar trees after the state ordered them destroyed to prevent disease to nearby apple orchards. The Court upheld the state’s action as “controlled by considerations of social policy which are not unreasonable.”

1926, Euclid v. Ambler Realty: The famous Euclid decision rejected another Due Process claim and upheld zoning as constitutional. The Euclid Court presumed the validity of police power enactments and imposed a heavy burden of proof on challengers. Euclid demonstrates that the scope of Constitutional principles expands and contracts in a changing world.

1988, Pennell v. San Jose: Plaintiffs challenged the City of San Jose’s rent-control ordinance, enacted to alleviate elevated rents during a housing shortage. The Court held the ordinance did not violate Due Process but was rationally crafted to protect landlords’ investments and prevent tenants’ rent increases. The ordinance – with its purpose to prevent unreasonable rent increases – legitimately exercised police power.  

2002, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency: This case demonstrates that temporarily suspending land development rights is not a taking. SCOTUS held a 32-month moratorium on development (issued to allow the Agency time to adopt measures to mitigate environmental impacts to Lake Tahoe) was not a regulatory taking.

These cases do not offer much hope for takings claims’ success against public health emergency regulations. As for the seminal takings doctrines – Loretto, Lucas, Nollan, Dolan, and Penn Centrala study of 2,000 takings cases establishes that SCOTUS’s categorical rules govern almost no state takings cases and regulatory takings claims almost invariably fail. Public health protection laws accomplish valid public objectives; they are likely to be valid under Due Process jurisprudence.

These cases also illustrate the role that local governments can play during public health crises, which can vary depending on the power granted in local charters, home rule provisions in state constitutions or state laws, or special and general enabling acts. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.


November 20, 2020 | Permalink | Comments (0)

Friday, November 13, 2020

Oregon adopts new housing production strategy rules

LCDC Adopts New Housing Production Strategy Rules

Having trouble viewing this email? View it as a Web page.

 

DLCD logo

NEWS RELEASE

 

FOR IMMEDIATE RELEASE: November 13, 2020

 

CONTACTS: 

Ethan Stuckmayer, 503-302-0937, ethan.stuckmayer@state.or.us

Samuel De Perio Garcia, 971-375-5970, samuel.d.garcia@state.or.us

Land Conservation and Development Commission Adopts

Housing Production Strategy Rules

SALEM - At their meeting on November 12, 2020, the Land Conservation and Development Commission (LCDC) passed new rules to implement House Bill 2003 from the 2019 legislative session. The primary goal of the bill is to help satisfy unmet housing needs in Oregon through the development of housing production strategies. Forty-nine (49) cities in Oregon with a population over 10,000 will be subject to these new rules. The adopted rules require cities to develop housing production strategies to achieve fair and equitable housing outcomes. These strategies seek to increase housing production while addressing the location of housing, fair housing, housing choice, housing options for residents experiencing homelessness, opportunities for affordable rental housing and homeownership, gentrification and displacement, and encouraging housing stabilization for historically marginalized community members.

“This is a historic moment - created by a diverse volunteer Rules Advisory Committee and staff. We are grateful for their extensive contributions. It’s rare that we have cities telling us we did everything right,” said Chair McArthur after hearing a range of testimony.

Director of the Homelessness Research and Action Collaborative, PSU Professor Marisa Zapata served on the state’s advisory committee. Dr. Zapata advised commissioners of the far-reaching implications of this work: “Oregon has set a standard on homelessness and housing that is the first of its kind in the country. These new rules will incorporate the needs of people experiencing homelessness for the first time in planning for unmet housing needs.”  

Commissioner Anyeley, the commission’s liaison to the advisory committee, made the motion to approve the new rules. Commissioner Nick Lelack seconded the motion which passed 5-0. 

“The rulemaking process has been very intentional on encouraging equitable housing outcomes for all Oregonians. This work has required the participation of diverse stakeholders not traditionally included in land use decision making processes and a deliberate focus on providing opportunities and eliminating barriers to the production of needed housing”, said Commissioner Hallova. “We look forward to partnering with cities, housing providers, and community organizations to implement these new rules”.

Adopted without amendment, the new rules to implement House Bill 2003 may be found on DLCD’s website here:

https://www.oregon.gov/lcd/Commission/Documents/2020-11_Item-5_Attach-B-Proposed-Housing-Production-Strategy-Administrative-Rules.pdf

With funding provided by the Oregon Legislature via the Department of Land Conservation and Development (DLCD), two cities are currently working on prototype versions of Housing Production Strategies this year.

Last year, the Oregon Legislature also passed House Bill 2001 aimed at providing Oregonians with more housing choices, especially housing choices more people can afford. This new law lets people build certain traditional housing types, like duplexes, in residential zones. These housing types already exist in most cities, but have been outlawed for decades in many neighborhoods. The Land Conservation and Development Commission continued the hearing to implement House Bill 2001 to December 9, 2020 where final rules are expected to be reviewed and approved by the commission.

###

Oregon’s statewide land use planning program — originated in 1973 under Senate Bill 100 — protects farm and forest lands, conserves natural resources, promotes livable communities, facilitates orderly and efficient development, helps coordination among local governments, and enables citizen involvement.  

The program affords all Oregonians predictability and sustainability to the development process by allocating land for industrial, commercial and housing development, as well as transportation and agriculture.  

The Department of Land Conservation and Development (DLCD) administers the program. A seven-member volunteer citizen board known as the Land Conservation and Development Commission (LCDC) guides DLCD.  

Under the program, all cities and counties have adopted comprehensive plans that meet mandatory state standards. The standards are 19 Statewide Planning Goals that deal with land use, development, housing, transportation, and conservation of natural resources. Periodic review of plans and technical assistance in the form of grants to local jurisdictions are key elements of the program

November 13, 2020 | Permalink | Comments (0)

Wednesday, November 4, 2020

Land Use, Human Health, and Equity Project, Post 3: The Role of Density in Combatting Climate Change and COVID-19

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

Blog No. 3 of the Land Use, Human Health, and Equity Project

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Gabriella Mickel[*]

The Role of Density in Combatting Climate Change and COVID-19

[This is the third in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

High population density might seem an unlikely pillar of sustainable development. Take, for instance, New York City. While it is the most densely populated city in the U.S., few would characterize it as particularly "green." By significant measures, however, there are few greener communities in the country. In 2016, New York City's per-capita carbon dioxide equivalent emissions averaged less than one-third of the national per-capita average.

The key to this lower level of emissions is density. Concentrating people, businesses, and services makes public transportation more feasible, apartment buildings (which are generally more energy-efficient than single-family homes) more common, and ultimately preserves more land. If all of New York City's residents spread out at the population density of Vermont, the city would consume "the land area of six New England states plus New Jersey, Delaware, Maryland, and Virginia." Compared to such sprawl, compact urban development is associated not only with lower emissions and greater environmental preservation but also greater economic productivity, innovation, traffic safety, air quality, social capital, and opportunities for upward mobility. It further results in less car dependency, “less likelihood of obesity and related chronic diseases,” and “increased overall life expectancy.”

But is compact urban development better for the public's health in the wake of COVID-19? It may seem intuitive that the higher the density, the higher the risk of disease contagion and mortality. Yet, evidence suggests that density, in and of itself, may not be to blame. In a recent study, researchers analyzed the COVID-19 infection and mortality rates in 913 U.S. metropolitan counties. When factors such as race, education, and metropolitan size were taken into account, the researchers found that "county density is not significantly related to the infection rate." Further, "counties with higher densities have significantly lower virus-related mortality rates than do counties with lower densities."

One possible reason for such a lower mortality rate in higher-density areas is the availability and quality of health care. In one survey, almost all low-income respondents who live in suburban and rural areas cited transportation as "a significant barrier to obtaining health care services." Not only do suburban and rural residents travel farther to medical facilities, but many people in these car-dependent areas do not own cars. Since public transportation seldom serves these areas, many are left without a reliable means of obtaining medical care. To make matters worse, "a substantial portion of the US population residing in these areas lack[] health insurance," and their medical providers are "less likely to receive public funds" to support care for the uninsured.                                  

In contrast, dense urban areas provide more medical care options (including free or low-cost alternatives). In addition, the options provided in denser communities are often more accessible. Since high-density areas can support public transportation, many people living in these areas need not rely on cars to obtain medical care. These factors can reduce disease mortality.

But what about disease contagion? While it may seem logical that high-density areas would have high infection rates, this is not necessarily true. Research indicates that connectivity between areas "matters more than density in the spread of the COVID-19 pandemic." By itself, density may even work to reduce infection rates since high-density areas have the infrastructure to more effectively implement measures that promote social distancing. In addition, high-density makes it easier to provide services to people most in need while social distancing orders are in place.

These findings suggest that density can play a critical role in promoting public health and building a more sustainable future. While cities must continue working to reduce disease contagion and mortality, density can be a valuable tool in doing so. However, to maintain high-density levels, cities must continue working to make density appealing by integrating public health into urban planning and design. At the Land Use Law Center, the Land Use, Human Health, and Equity Project is developing strategies for how cities can do so in a post-pandemic world.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.  Gabriella Mickel is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

November 4, 2020 | Permalink | Comments (0)

Monday, November 2, 2020

New documentary on RLUIPA: America's Holy War

There is a new documentary on RLUIPA available on Amazon Prime (free with Prime membership) called America's Holy War.  Here is the summary:

An elderly widow is pressured to sell her beloved home.  Her neighbors harassed to sell theirs too to developers who want to replace them with multi-story buildings for a rapidly growing religious community.  The story of a battle triggered by the Religious Land Use and Institutionalized Persons Act (RLUIPA) which was meant to fight religious discrimination but instead has ignited a holy war.

Hat tip to Patty Salkin.

November 2, 2020 | Permalink | Comments (0)