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)

Monday, September 13, 2021

35th Annual Land Use Institute National Conference (Oct 19, 20, 26 & 27) (online)

 

 

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September 13, 2021 | Permalink | Comments (0)

Monday, August 30, 2021

Land Use, Human Health, and Equity Project, Post 24: Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 24 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Colt Watkiss [*]

 

Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development

Adaptive reuse is the act of finding a new use for a building.” “Reuse strengthens a community feel by positively linking a city’s past to its future and offering cheap and robust infrastructure to emerging needs, which can spark wholesome renewal processes.” Adaptive reuse can help “[r]emove blighted properties and the accompanying crime from communities, [p]reserve natural resources and the environment, [p]ursue historic preservation, and [p]rotect important intangibles like the community’s sense of place.” Similarly, infill development is the process of developing on vacant or underused land in areas that are largely developed. These are effective solutions considering “[r]esearch link[ing] foreclosed, vacant, and abandoned properties with reduced property values, increased crime, increased risk to public health and welfare, and increased costs for municipal governments.”  

While older buildings, underutilized structures, and vacant lots can be detrimental, they can also provide opportunity for creative re-imagining of spaces. Adaptive reuse can be a tool to promote affordable housing. The potential for reuse to fight housing insecurity was explored as a necessary public health resource during the COVID-19 crisis. California, Oregon, Vermont, and Hennepin County – which includes Minneapolis – all took steps to house homeless individuals in rehabilitated hotels, motels, and other structures that could quickly be converted into non-congregate housing and eventually permanent housing. California had great success with these conversions, starting with Project Roomkey which allowed the use of federal funds to acquire hotel rooms to provide non-congregate shelter for homeless people to prevent the spread of COVID-19. The success of Roomkey prompted the creation of Homekey, which followed a similar template but was broadened towards creating permanent housing. Homekey allocated $846 million, combining federal and state funds, to allow for the purchase and conversion of hotels and other structures into supportive and affordable housing. Between July and December of 2020, California was able to “create more than 6,000 housing units in 94 separate properties, 5,000 of which are destined to become permanent housing units.” In addition to the speed, the average cost of Homekey conversions was $129,254 per unit, compared to “the typical cost per unit to develop new housing in California rang[ing] from roughly $380,000-$570,000.” One of the keys to Homekey’s success was a provision in the statute which allowed Homekey projects as-of-right in whatever zone the purchased property sat in without further review.

Municipalities should consider amending their zoning ordinances to allow for more adaptive reuse in their towns and communities. A strong adaptive reuse ordinance (ARO) was enacted in Santa Ana, California. The ordinance allows for the adaptive reuse of nonresidential buildings to residential units in 4 designated “project incentive areas” if the building either “was constructed in accordance with building and zoning codes in effect prior to July 1, 1974” or “has been determined to be a historically significant building.” One noteworthy development resulting from the ordinance is the Santa Ana Arts Collective, a former bank which has been converted into affordable artist housing containing “58 studios and one-, two-, and three-bedroom apartments in the existing building.” St. Petersburg, Florida adopted a similar ARO. Los Angeles is considered one of the preeminent adaptive reuse examples, especially downtown Los Angeles where over 14,000 residential units have been created by converting historic and underutilized buildings. Recent motions have been proposed in Los Angeles to expand the scope of adaptive reuse and promote housing affordability.

Tacoma, Washington launched the Residential Infill Pilot Program 2.0 to address housing through infill development. The program allows Planned Infill housing in single-family zoning districts, two-family or townhouse development, small-scale multifamily development, and cottage housing across five council districts. Bellingham, Washington adopted Chapter 20.28, “intend[ing] to implement comprehensive plan goals and policies encouraging infill development, more efficient use of the remaining developable land, protection of environmentally sensitive areas, and creating opportunities for more affordable housing” and providing special development regulations for housing forms that are not single-family dwellings.

Adaptive reuse is often considerably environmentally sustainable. It can help foster community density, fight sprawl, and some older buildings are built with seasoned materials that are often better quality and not even available today. One report found that “[b]uilding reuse almost always yields fewer environmental impacts than new construction when comparing buildings of similar size and functionality,” and “that it takes 10 to 80 years for a new building that is 30 percent more efficient than an average-performing existing building to overcome, through efficient operations, the negative climate change impacts related to the construction process.” Infill can also benefit the environment by “helping to protect lands…and reducing greenhouse gas emissions.”

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Colt Watkiss is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

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

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

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

August 30, 2021 | Permalink | Comments (0)

Land Use, Human Health, and Equity Project, Post 23: Zoning to Fill the Missing Middle Housing Gap

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 23 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Bailey Andree [*]

Zoning to Fill the Missing Middle Housing Gap

Previous blogs, including “Housing, a Crucial Determinant of Health,” defined and discussed the seriousness of housing insecurity, one of the four pandemics evaluated by the Land Use, Human Health, and Equity Project at the Land Use Law Center. Housing demand is outpacing housing supply and new housing needs to respond to a massive demographic shift. In contrast to the mid-late nineteenth century’s nuclear family, one in four households today is a single-person household. One in three adults has never married. The birth rate is dropping. All of these factors contribute to the increasing need for housing variety. Zoning’s emphasis on single-family housing greatly limits the production of different types of housing. Simply put, Missing Middle housing is zoned out in most places.

In response to the worsening housing crisis, there is a trend toward zoning for Missing Middle housing development. Missing Middle zoning permits the development of two-, three-, and four-family housing and smaller-scale multifamily buildings to provide the variety called for by the country’s changing demographics. It is a “range of house-scale buildings with multiple units – compatible in scale and form with detached single-family homes – located in a walkable neighborhood.” These units provide housing for young professionals, senior households, and low- to moderate-income individuals. Missing Middle units may include duplexes, triplexes, townhomes, tiny homes, small apartment buildings, and more. The typical Missing Middle development has 4-8 units per lot or building.

The effects of the housing crisis are widespread. The United States Census Bureau estimates 29.8% of the over 122 million households in the U.S. are cost burdened, spending 30% or more of their monthly income on housing. Equaling over 36 million households, this is a problem a large portion of Americans face. While this is felt by all, the burden weighs heavier on minority groups. The National Low Income Housing Coalition estimates that “30% of Native Americans, 35% of African Americans, and 28% of Hispanic households have extremely low incomes” compared with 22% of white non-Hispanic households. These disproportionate impacts of the housing pandemic paint a clear picture of the crisis we face. Missing Middle housing addresses these impacts on minority communities while also combating economic disparities between traditional single- and multi-family zones.

One method of creating Missing Middle housing is to amend current zoning codes to allow mixed-use or Planned Unit Development (PUD) while maintaining single-family zones. Both Auburn, Maine and North Brunswick, New Jersey have recently amended their zoning codes to allow for PUD to encourage creation of a diverse housing stock, including duplex, townhouse, and garden apartment housing. PUDs are overlay districts that often allow mixed-use in an otherwise single-use zone, including residential and commercial units permitted as of right. Montpelier, Vermont amended its zoning code to create a mixed-use residential district to promote infill while maintaining community character. This technique will allow for much of the zoning code, and therefore community, to remain the same while certain aspects are changed to promote Missing Middle development.

Another zoning method to alleviate the pressures of the housing crisis is to eliminate single-family zones altogether. In Berkeley, California the zoning code was amended to eliminate all single-family zones and replace them with multi-family zones, allowing for development of duplexes, triplexes, and fourplexes to alleviate the city’s housing strain. Similarly, Accessory Dwelling Units and duplexes are permitted as of right in all residential zones in Olympia, Washington while cottage houses, triplexes, fourplexes, and townhouses are permitted as of right in most residential zones. Both of these jurisdictions have successfully updated their zoning codes and exemplify the steps municipalities can take to address the affordable housing pandemic.

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Bailey Andree is a second-year student at the Elisabeth Haub School of Law, Student Associate at the Land Use Law Center, and Research Assistant to Professor Nolon.

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

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

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

August 30, 2021 | Permalink | Comments (0)

UCLA Housing Voice podcast is a "must listen"

If you haven't found it yet, be sure to check out the UCLA Housing Voice podcast, which is available here.  So far there are eight great podcasts covering major academic issues in housing.

August 30, 2021 | Permalink | Comments (0)

Monday, August 16, 2021

The brilliance of Norfolk, VA's Missing Middle Pattern Book

If you haven't checked it out yet, be sure to take a look at Norfolk, Virginia's new Missing Middle Pattern Book

More than any other idea floating out there about how to produce more affordable housing, I tend to think this is the best option.  Essentially, these are pre-approved designs that can be developed "as of right" in certain districts of the city.  One of the major problems with small-scale infill, which so many people seem to increasingly imagine will resolve our affordable housing crisis, is that it is incredibly risky from a developer and lender perspective.  As a result, I am generally dubious that upzoning from single-family to duplexes or fourplexes will actually yield much new housing except in areas where land values are low compared to a regional average.  I don't think small-scale developers will be able to get loans otherwise.  Of course, the other option would be just to build huge duplexes and fourplexes to get the returns their lenders will demand, which doesn't really help affordability.

The pattern book idea is brilliant because it gives the city some say in what will be developed, should keep costs low by yielding economies of scale, and gives certainty to developers and lenders that will permit them to take on risk of more modest developments. 

Not to mention, most of the places we now view as beautiful or "historic" were built with pattern books commercially available in the late 19th century.  The idea is as good now as it was then.

More on Norfolk here.

 

August 16, 2021 | Permalink | Comments (0)

Land Use, Human Health, and Equity Project, Post 22: NIMBY Restrictions Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 22 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Bailey Andree [*]

 

NIMBY Restrictions Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity

The previous blog “Housing, a Crucial Determinant of Health” defined and discussed the seriousness of housing insecurity, one of the four pandemics evaluated by the Land Use, Human Health, and Equity project at the Land Use Law Center. Relatedly, as discussed in “ADU Introduction,” Accessory Dwelling Units (ADUs) are a promising new trend in the national search for solutions to the housing crisis. Local land use laws that allow ADUs open the vast single-family zoned urban landscape to additional housing development. In many communities, however, neighborhood opposition has poisoned the promise of the ADU solution by raising concerns that limit what kinds of ADUs may be created.

Not In My Backyard, or NIMBYism, discourages new development, including ADUs, to protect existing neighborhood character. Many of NIMBY’s proponents – often middle and upper class households – see affordable housing development as bringing an undesirable change into the community and argue that this change will depress property values and increase crime, litter, and violence in the neighborhood. The result of NIMBY opposition to ADU development poisons the prospects of a robust embrace of ADUs as a response to the need for affordable residences in safe neighborhoods.

Where NIMBY provides the political opposition, poison pills provide the legal means to prevent affordable housing development. The term “poison pill” derives its meaning from the poison pills spies would carry in case of capture. Planners began referring to ADU restrictions as poison pills to showcase how the regulations can “effectively kill” the ADU development.  There are many types of poison pills used to prevent and limit ADU construction. The most common, with examples, include:

  1. Owner occupancy requirements. SeaTac, WA requires the primary residence to be occupied by the owner in order to build and rent out an ADU.
  1. Maximum size requirements. Norwalk, CT does not allow ADUs greater than 700 square feet.
  2. Off-street parking requirements. SeaTac, WA requires two off-street parking spaces for ADUs over 600 square feet.
  3. Occupant requirements. West Hartford, CT previously required ADU occupants to be domestic workers for or the family of the primary residence owner. This has been repealed. 
  4. Age and disability requirements. Fairfax, VA requires either an ADU or primary residence occupant to be elderly – at least 55 years old – or “permanently and totally disabled.”
  5. Restrictions on the number of occupants. Newton, MA does not allow the ADU to increase the maximum number of residents permitted beyond what was allowed for a principal dwelling unit alone. 
  6. As-of-right designations. Raleigh, NC previously prohibited ADUs from being permitted as of right in residential zones, significantly limiting ADU development.

To eliminate some of these poison pills, municipalities such as Raleigh, NC have reduced ADU restrictions to address the affordable housing crisis. Raleigh previously restricted ADU construction to one specific overlay zone, did not allow ADUs as of right in any residential zone, and required residents to petition their neighbors when seeking to develop ADUs on their property. Now, Raleigh allows ADUs as of right in all residential zones without any significant restriction on their construction or subsequent use. This promotes affordable housing and encourages diversity in both housing stock and occupancy. Seattle, WA recently enacted zoning legislation that removes significant barriers to ADU development in order to address the city’s housing crisis. The new code removes off-street parking and owner occupancy requirements while also streamlining the approval process for ADU development. Seattle also created a user-friendly website to simplify the process for its residents by connecting homeowners considering ADUs to members of the design and construction community, and it even addresses the high cost of ADU development through access to low-interest financing. Techniques such as these will provide much needed momentum in the ADU process, more effectively addressing the housing insecurity pandemic.

On the state level, Connecticut recently passed a bill that promotes development of ADUs. HB 6107 legalizes ADUs in the state and removes off-street parking requirements. This bill allows ADUs as of right on all properties that contain at least one single-family home. It also prohibits municipalities from implementing several restrictions on ADU development, including minimum age and occupant relationship requirements. Oregon also recently passed HB 2001 addressing ADU creation. The state now requires cities with populations greater than 2,500 or counties with populations greater than 15,000 to allow for ADUs in all single-family zones.

By following those suggestions to implement solutions like Raleigh, Connecticut, or Oregon, municipalities can combat NIMBYism and promote development of ADUs. The national housing crisis demands it.

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Bailey Andree is a second-year student at the Elisabeth Haub School of Law, Student Associate at the Land Use Law Center, and Research Assistant to Professor Nolon.

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

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

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

August 16, 2021 | Permalink | Comments (0)

Friday, August 13, 2021

Land Use, Human Health, and Equity Project, Post 21: ADU Introduction

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 21 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Colt Watkiss [*]

ADU Introduction

This blog begins a series of reports on local land use strategies that mitigate the alarming social, economic, and health impacts of our nation’s housing insecurity crisis. Recently, state and local governments have focused on law reform that permits the addition of dwelling units in neighborhoods zoned exclusively for single-family housing. Since most communities have zoned most of their residential land as single-family, this trend has the potential to greatly increase the limited supply of housing that is at the root of the problem. 

Accessory Dwelling Units (ADUs) are typically defined as “additional living quarters on single-family lots that are independent of the primary dwelling unit. The separate living spaces are equipped with kitchen and bathroom facilities.” The “Accessory” in ADU refers to the traditional zoning definition of accessory uses: a use that is subordinate, incidental to, and customarily found in connection with the principal use allowed on a lot by the zoning law. ADUs come in three basic forms: detached – separate, freestanding structures on the same lot as the principal dwelling; attached – attached additions to the main home like a converted garage unit; and interior or junior ADUs (JADUs) – units built inside the principal unit.

ADUs were not a foreign concept for much of American history. Thomas Jefferson lived in essentially an ADU while Monticello was being constructed. Many ADUs were built as “carriage” or “coach” houses.” “Originally built for horse-drawn carriages, the structures…were frequently large enough to double as living quarters for workers and stable hands.” “In-law units” or “granny flats” “grew at a time when multigeneration living was more common.” However, “the rise of the nuclear family resulted in fewer extended family living arrangements and smaller households.” Almost 70% of people aged 65 and older lived with their adult children in 1850. Fewer than 15% did in 2000. But a recent rise in multigenerational households is helping revitalize interest in ADUs as an effective way to house multigenerational families while providing privacy.  

ADUs “began to disappear after World War II when several trends led to urban sprawl and low-density suburban developments.” The rise of restrictive single-family zoning practically stopped ADU development. “Then as now, residential zoning codes typically allowed only one home per lot, regardless of the acreage and with no exceptions.” At the same time, the size of single-family homes grew. “In 1950 the average single-family home was 983 square feet…[I]n 2019 [it] was 2,301 square feet”; however, the size of households has dropped from over 3.5 people per household in 1947 to around 2.5 today.

In spite of zoning restrictions, illegal construction of ADUs continued in communities where the existing housing stock was not meeting demand.” San Francisco had between 20,000 and 30,000 ADUs by 1960, and “90 percent…were built illegally.” In fact, “[i]n some densely occupied East and West Coast communities, illegal ADUs might compose 2% – 10% of housing stock.” “Some cities, including Chicago, grandfathered in pre-existing ADUs — but only if the residences remained consistently occupied.Barnstable, MA, “recogniz[ing] that although unpermitted and unlawfully occupied, these dwelling units are filling a market demand for housing at rental costs typically below that of units which are and have been lawfully constructed and occupied,” created an amnesty program for its illegal ADUs. Owners are allowed to convert them to legal units by complying with certain criteria, including agreeing to rent the unit “to a person or family whose income is 80% or less of the area median income[,] agree[ing] that rent (including utilities) shall not exceed the rents established by the Department of Housing and Urban Development (HUD) for a household whose income is 80% or less,” and executing a deed restriction which binds future owners to the same agreements.

Recently, ADUs have begun to come back as many states and municipalities see their benefits, including: providing more affordable houses, fighting housing insecurity, subsidizing homeowners’ income, aiding communities with infill and transit-oriented development by gently densifying neighborhoods, being better for the environment, more seamlessly complementing neighborhood character, and providing more housing options to fit different ages and needs, especially older folks as a group one report predicts will be the biggest growth demographic for households in the next 20 years. 

Despite America’s history with ADUs and the litany of benefits they provide, ADUs are often a highly controversial topic. They run into numerous barriers and face Not In My Backyard (NIMBY) objections that range from fears of parking issues to concerns over losses in property value. Even in jurisdictions that do allow for ADUs, many ordinances are embedded with “poison pills” that discourage the building and occupation of accessory units.

The next blog in this series will discuss types of “poison pills” and how some states and municipalities have removed them to make ADUs more accessible.   

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Colt Watkiss is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

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

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

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

August 13, 2021 | Permalink | Comments (0)

Thursday, August 12, 2021

Land Use, Human Health, and Equity Project, Post 20: Housing, a Crucial Determinant of Health

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 20 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Colt Watkiss [*]

Housing, a Crucial Determinant of Health

Housing insecurity is a pandemic plaguing America. Although no uniform definition for housing insecurity exists, the U.S. Department of Housing and Urban Development (HUD) defines affordable housing as spending less than 30% of one’s income on housing while spending above 30% is considered cost burdened, and spending above 50% is considered severely cost burdened. An estimated 29.8% of households in the U.S. are cost burdened, equaling over 36 million households, and the affordability crisis is worsening. One report found median home sales prices increased 28% between December 2016 and December 2020, 10% just between December 2019 and December 2020. Meanwhile, the number of existing homes on the market fell from 1.46 million in February 2020 to 1.03 million in February 2021. Vacancy rates for moderate- and low-income rentals are also low while roughly 46% of renters were cost burdened and 24% were severely cost burdened as of 2019. The supply shortage is the consequence of decades of slow housing development. 2010-2019 saw the fewest houses built of any decade in the United States since the 1960s. Freddie Mac estimates that housing supply is 3.8 million units short of meeting long-term demand, and the National Association of Realtors conservatively estimates the deficit is as high as 5.5 million units. “This production shortfall naturally leads to a bias towards higher house prices.

Several forms of housing insecurity exist, and each can be detrimental to health. One study looked at three different forms of housing insecurity – being behind on rent, making multiple moves, and having a history of homelessness – finding each form of housing insecurity “individually associated with increased adjusted odds of adverse health and material hardship compared with [secure] housing.” Another study, which tested five different characteristics of housing – quality, stability, affordability, ownership, and receiving a housing subsidy – “found that the quality of housing – whether a [child’s] home has structural or maintenance deficiencies such as infestations of rodents or cockroaches, exposed wiring and peeling paint, or a lack of light, heat, or hot water – was the most important aspect of housing for children and families.” Experts typically discuss healthy housing in relation to four categories: quality, affordability, stability, and neighborhood location. The first three, combined with the definition of affordable housing, illuminate a more comprehensive definition of housing insecurity.

QUALITY:

Many low-income individuals face the reality that housing they can afford often comes with substandard living conditions. Housing quality can significantly impact health outcomes. Poor quality housing is a contributing factor to infectious diseases, chronic illnesses, injuries, poor nutrition, and mental disorders. One especially prevalent quality issue is exposure to lead. An estimated 24 million housing units contain significant amounts of lead-based paint, 4 million of which house children. Exposure to lead, especially for young children, can cause damage to organs and blood, and it can impair cognitive and socioemotional development. Lead exposure is also significantly negatively associated with IQ and with lower test scores, and, at higher levels, can “cause coma, convulsions and even death.” Another survey found poor housing quality was strongly and independently associated with asthma and emergency department visits for asthma. Additionally, overcrowding within housing units is associated with multiple health issues.

STABILITY:

Frequent moving and residential instability “is associated with emotional, behavioral and academic problems among children, and with increased risk of teen pregnancy, early drug use, and depression during adolescence.” (Click on “Read the issue brief (PDF)” in the previous hyperlink for the full brief). Research has found that “any residential move during childhood is associated with nearly half a year loss in school,” lower educational attainment, and lower earnings later in life. Each additional move is associated with declines in social skills. One study found a significant negative impact on high school graduation probability related to moving. Longer tenure in one’s residence is also “associated with lower levels of depression among seniors and fewer internalizing and externalizing behavioral issues such as anxiety and aggression among adolescents.” In the year following an eviction, one study found “mothers are 20[%] more likely to report depression than their peers” who were not evicted, and some mothers still reported significantly higher rates of depression several years after.

AFFORDABILITY:

Matthew Desmond, author of Evicted, coined the term “the rent eats first.” Essentially, when households face high housing costs, they often must make cuts to other spending, including child enrichment activities, medical care and filling prescriptions, and even food. One survey found homeowners in default or foreclosure, compared to homeowners with no housing strain, suffered worse physical and mental health effects, including being 13 times more likely to suffer serious psychological distress. The experience of foreclosure has been associated with depression, anxiety, alcohol use, and suicide. Stress from being behind on rent also correlates with poor health. Higher homelessness rates correlate with high rents and lack of affordable housing. Homeless individuals face shorter life expectancies, higher rates of traumatic brain injuries, disproportionate risk of morbidity, and risk of physical and sexual violence. Homelessness also severely impacts children, including pre- or post-natal homelessness.

The remaining blogs in the Housing Insecurity series will look at ways state and local governments can help mitigate this pandemic, including allowing and incentivizing accessory dwelling units (ADUs), pursuing adaptive reuse initiatives to add additional housing, and enacting more multifamily zoning above the missing middle threshold, as well as actions being taken to remediate distressed properties.  

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Colt Watkiss is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

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

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

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

August 12, 2021 | Permalink | Comments (0)

Thursday, August 5, 2021

Hiring Announcement: University of Colorado Law School  

Posted at the request of Prof. Sharon Jacobs...

 

The University of Colorado Law School invites applications from entry-level and lateral candidates for one or more full-time, tenured or tenure-track faculty positions to begin at the start of the 2022-23 academic year. We welcome applications from candidates in all subject areas and at all levels of seniority. However, we have especially strong needs in Tax Law, Environmental/Natural Resources Law, Health Law, Business/Commercial Law, American Indian Law, and Race and the Law (broadly construed). We are also very interested in candidates who can teach classes in the first-year curriculum, especially constitutional law, criminal law, legislation and regulation, or property, and in candidates who can teach negotiation/alternative dispute resolution. We seek candidates with great promise or a record of excellence in both scholarship and teaching. Candidates must hold a J.D. from an ABA-accredited law school or equivalent degree in a related field.

The University of Colorado Boulder is committed to building a culturally diverse community of faculty, staff, and students dedicated to contributing to an inclusive campus environment. We are an Equal Opportunity employer, including veterans and individuals with disabilities. We strongly encourage applications from people of color, women, individuals with disabilities, and others whose background, experience, and viewpoints would contribute to the diversity of our faculty.

Application materials will not be accepted via mail or email. For consideration, applications must be submitted through the CU Jobs portal at the following link: https://cu.law/jobs. Candidates should apply as soon as possible for full consideration.

For questions, please contact Professor Sharon Jacobs, Chair, Faculty Appointments Committee, sharon.jacobs@colorado.edu.

August 5, 2021 | Permalink | Comments (0)

Tuesday, August 3, 2021

CFP: AALS SLG / CED sections co-hosting panel on "Progressive Perspectives on Local Economic Development Moving Forward"

 

AALS Section on State and Local Government Law

2022 AALS Annual Meeting

Call for Proposals

 

Program Description: The AALS Sections on State and Local Government Law and Community Economic Development are seeking speakers for our joint main program at the 2022 AALS Annual Virtual Meeting, “Progressive Perspectives on Local Economic Development Moving Forward.”  This program will explore new ideas for local governments to consider with respect to economic development in a post-pandemic era. The session will focus on law reform and scholarship that seeks to build forward-looking movements that create inclusive economic development, and considers the relevance of core legal tensions concerning regionalism and localism, the limits of government intervention in the economy, impacts of market forces on policy, and similarities and differences to past periods of local growth. The program is intended to be broad in focus. Potential topics include: 

  • What economic development structures did COVID-19 expose as not meeting community needs? How did plans change at the time during the COVID-19 pandemic and how does that inform what should be done for the future (in a progressive, big thinking way)?   
  • How might contested relations between states and localities limit new ideas about local economic development?  
  • What is the role of regionalism as a concept and regional institutions in practice in fostering/frustrating local economic development?   
  • How can economic development tools and process be used to address past economic inequality and ensure future equitable distribution of economic growth?  
  • How does resiliency fit into the conversation around economic development?  

Submission Guidelines: If you are interested in participating, please send a 250-500 word abstract of your proposal. Scholarship associated with the proposal may be at any stage of the publication process from work-in-progress to completed article, but if already completed, scholarship may not be published prior to the Annual Meeting. We welcome legal scholarship across a wide variety of methodological approaches and encourage untenured scholars in particular to submit their work. Each potential speaker may submit only one abstract for consideration. Abstracts must be submitted by Friday, August 20, 2021. Abstracts should be submitted electronically in Microsoft Word format to both Kellen Zale (kbzale@central.uh.edu)and Ted De Barbeiri (edeba@albanylaw.edu). The subject line should read “AALS 2022Joint Program Submission: Local Economic Development.” Submissions will reviewed by members of both Sections’ Executive Committees, and the selected presenters will be notified by early September. Speakers are responsible for paying their own registration fees (AALS will be offering school-wide registration again this year).

August 3, 2021 | Permalink | Comments (0)

Monday, August 2, 2021

Land Use, Human Health, and Equity Project, Post 18: The Pandemic Plan for Healthy Buildings

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 18 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Abigail Dove [*]

The Pandemic Plan for Healthy Buildings

COVID-19 and its many variants are a continuing threat to low-carbon living in urban areas. In many metropolitan areas, tenants of residential and commercial buildings are considering moving out or have moved out of low carbon neighborhoods, threatening their financial viability and relatively low per capita carbon footprint. An alarming number of urban residents are buying homes in less dense suburbs or are working from home rather than in office buildings in urban areas.  This blog proposes, describes, and illustrates the use of a Healthy Building Checklist to be implemented by local land use agencies to encourage and incentivize building owners to adopt needed physical and operational changes, making buildings less susceptible to the spread of viral diseases.

The building codes enforced by municipalities are created and amended by the International Codes Council (ICC), adopted and adapted to regional conditions by state building code agencies, and then passed along to local governments to be enforced as part of the land use building review and approval process. In most states, building codes cannot be amended by local law, even to respond to pandemics and other emergencies that threaten public health. This calls for a new approach.

The Healthy Building Checklist

The Healthy Building Checklist linked below was developed by the Land Use Law Center as an example of design and construction standards for builders, developers, and municipalities to use to make buildings more resilient to viral diseases. The Checklist is not intended to be mandatory, but rather to supplement the requirements and enforcement of current building codes and land use regulations. The Checklist adopts the organization and approach of seven sections of the Construction Specifications Institute’s MasterFormat to create a familiar protocol of building standards that local enforcement officials, developers, and their professional consultants can refer to in discussions about building projects. The Checklist also follows the formatting of the MasterFormat with which local code enforcers are acquainted. Matching the organization of the Checklist with this MasterFormat ensures that the local building code enforcement staff will already have the knowledge and training needed to implement these additions.

We also adjusted the Checklist to conform to recent guidelines that address healthy buildings published by the American Institute of Architects (AIA); this increases the Checklist’s compatibility with current professional practice. The AIA’s checklist is a good example of an evolving source of standards and procedures for embedding healthy building criteria into the review of new or substantially rehabilitated residential and commercial buildings.

The topics included in the Healthy Buildings Checklist focus on:

  • Design of common indoor areas to accommodate social distancing dimensions.
  • Cleaning and maintenance of buildings and their HVAC systems with protocols to provide regular servicing.
  • Limiting points of entry for security/temperature checks and to control movement and the efficient, contactless flow of people.
  • Better use of outdoor spaces for exposure to natural air changes and natural light.
  • Improved ventilation effectiveness, air handling, filtration, and touchless control systems.
  • Proper finishes, touchless controls, and flow for elevator use.
  • Monitoring and controlling relative humidity.
  • Technology upgrades for increases needed for hands-free operations, remote work situations, and equipment monitoring.
  • Electrical upgrade/redesign to accommodate new technology and contactless controls.
  • Use of finishes and materials that can stand up to heavy, regular cleaning and resist the retention of contaminants and that are resistant to the transfer of viruses.
  • Clear graphic signage to assist in establishing designated flow patterns.

The full Healthy Building Checklist is here:

https://drive.google.com/file/d/1IMczXsbFJFvwNC2AmetDh2DZ6cGtEcHE/view?usp=sharing

To incorporate the Checklist’s guidelines into building design, local development staff can call developers and their professional advisors together in a pre-application process. The purpose of this step is to determine the health impacts of the proposal by requiring a Health Impact Assessment (HIA) and to incorporate as many of the Checklist’s standards as possible in the developer’s formal application for land use approval.  Requiring a pre-application process, like in Southampton, NY, that includes an HIA will help local governments improve the health of their citizenry.

During this process, localities can incentivize developers to incorporate these guidelines voluntarily. Incentives can include fast-tracking applications, reducing permit fees, and providing valuable density bonuses. In addition, localities can provide a certificate for buildings that comply with a sufficient number of the Checklist’s guidelines. Green building rating systems, such as LEED and the WELL Health-Safety Rating system, provide a convincing example of the value of such certifications. Developers found that tenants are attracted to certified green buildings and that, by complying with voluntary standards, their building’s property value will increase. The same result can be expected when developers can show their buildings comply with a locally created safe buildings checklist of standards that protect occupants from COVID-19 and its variants.

For additional resources, the Gaining Ground Information Database is free and features 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.

[*] Abigail Dove is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

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

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

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

August 2, 2021 | Permalink | Comments (0)

Thursday, July 22, 2021

Land Use, Human Health, and Equity Project, Post 15: Zoning and Lease Mediation as a Way to Retain Critical Small Businesses

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 15 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Jonathon Duffy [*]

Zoning and Lease Mediation as a Way to Retain Critical Small Businesses

 

The COVID-19 pandemic has exposed the fragility of small businesses throughout the country. These small businesses are the backbone of many of the communities they inhabit and losing them would come with devastating impacts. With a return to “normal” on the horizon, it is important to keep in mind just how much small businesses are still hurting and how much they contribute to walkable urban life, employment, and equity and how to sustain them in normal and troubled times.

            According to a study published by the New York Times in August 2020, one-third of small businesses in New York City will never reopen. That number is even more staggering when one considers that, according to the study, those roughly 80,000 businesses that will never reopen account for approximately 520,000 jobs. Six months after the study’s publication, nine million small businesses nationally were still in danger of shutting down without additional government aid. While all small businesses have been affected, minority-owned small businesses have been especially hit hard with eight out of ten minority-owned small business owners saying they are in poor financial condition, even after receiving government aid.

            These hardships faced by small businesses show just how vulnerable one of the most important sectors of our economy is. The U.S. Small Business Administration reported that two-thirds of jobs added in 2019 were created by small businesses. The 27 million small businesses represent 44% of economic activity and 50% of the total U.S. GDP. Small businesses play a critical role in the inner city where they provide roughly one-third of inner city jobs, as well as goods and services essential to lively and economic commercial neighborhoods. These small businesses and the jobs they represent, in some sense, are the lifeblood of cities and are keeping people tied to city living.

            As cities become more exposed to the vulnerabilities of small businesses and their impacts on the local community and economy, many have turned to zoning and lease mediation to help combat the effects of the pandemic. A popular strategy to accommodate social distancing has been the open streets programs. New York City has used zoning to the advantage of small businesses by allowing businesses to operate in certain streets. Relatedly, Santa Monica approved various zoning changes, including giving small businesses the ability to use their parking lots for outdoor retail and dining. This was done by increasing the change of use parking relief from 3 spaces to 10 and excluding any outdoor dining areas from the parking calculations. In order to remove the pressure of re-opening, Santa Monica also eliminated its one-year abandonment rule for legal, non-conforming uses. Clackamas County, Oregon used variances for areas zoned as commercial, industrial, or institutional to provide more space for social distancing. The County Planning Director of Clackamas County, Jennifer Hughes, stated that these variances could apply to restaurants whose owners wanted to use their parking lots for outdoor dining or to religious groups that wanted to set up a tent outdoors to allow for social distancing during gatherings.

            With the lack of revenue coming in due to the various shutdowns, many small businesses are at risk of eviction. Many owners cannot afford to pay their rent, while landlords only have so much flexibility as they have to pay their mortgages and other fixed expenses. The biggest problem tenants face with their lease is that they are simply not educated as to their rights. The Seattle Eviction Prevention Toolkit aims to address just that. Seattle partnered with local community groups and the law firm Perkins Cole to promote effective communication between landlords and tenants. This toolkit included sample lease provisions designed to mitigate the tensions of recovery, a summary of laws that would have an impact on tenants, and a webinar that explained the legal issues that may arise and how to address them.

            The impacts that small businesses are facing due to COVID-19 cannot be overstated. Many of these small businesses rely on a daily flow of customers just to break even. Their survival and the survival of the local communities that they inhabit are essential to keeping people in cities and to robust employment. The equity aspect of small businesses has come to light through the pandemic, and it is imperative that all businesses are afforded the same chance to rebound. Cities have looked past the basic financial recovery tools to more practical and innovative tools that allow these businesses to get up and running more quickly. City leaders have learned indelible lessons regarding small business vulnerability. As normalcy returns, they are likely to continue using zoning and eviction prevention to save these small businesses and protect them from the continuing risks of the future.

[*] Jonathon Duffy is a third-year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

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

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

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

July 22, 2021 | Permalink | Comments (0)

Wednesday, July 21, 2021

Land Use, Human Health, and Equity Project, Post 14: Complete Streets: Protecting Public Health

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 14 of the Land Use, Human Health, and Equity Project

Editor: Brooke Mercaldi
Contributing Author: Robert O’Connor [*]

Complete Streets: Protecting Public Health

In light of COVID-19’s particular danger to those with underlying medical conditions, many communities are using their capital budgets and zoning requirements to improve public health and resiliency. Communities can improve public health by integrating more physically active options into everyday activities such as travel to and from public spaces, shopping destinations, banks, restaurants, and other areas of recreation. Municipalities can achieve this integration and promote active living by adopting code provisions and techniques that expand multimodal transportation and enhance accessibility and safety of existing pedestrian routes.

 Active living can be defined as “a way of life that integrates physical activity into daily routines.Walking is one of the most common forms of physical activity among adults in the United States. By providing more opportunities for walkability or the use of bicycles, municipalities can decrease dependence on vehicles and increase public health.

            Complete Streets policies have been proven to improve public health and safety. Complete Streets involve creating a network of “streets designed and operated to enable safe use and support mobility for all users.” The purpose of a Complete Streets provision is to increase safe travel opportunities for pedestrians, bicyclists, public transportation riders, and motorists, including children, the elderly, and persons with disabilities. Features of Complete Streets policies include inclusive roadway design, lane striping, bicycle lanes, paved shoulders suitable for bicyclists, pedestrian safety signs, crosswalks, pedestrian control signals, bus pull-outs, curb cuts, raised crosswalks, ramps, and traffic calming measures.

            In 2015, Smart Growth America, a non-profit entity dedicated to fostering safe, equitable, and sustainable community growth, researched the outcome of 37 Complete Streets projects nationwide. Smart Growth America found that overall Complete Streets projects measurably improved safety for users and increased biking and walking. In the Town of Hamburg, New York, vehicle collisions decreased by 57 percent after implementing a Complete Streets project. Several municipalities saw an increase in pedestrian activity as more trips were taken by bicycle or by walking. Some municipalities reported an increase in bicycle trips of over 600%.

Complete Streets are chiefly funded by municipal budgets, but increasing zoning ordinances encourage private developers to integrate their streets and sidewalks into the municipal network. The city of Troy, New York adopted code provisions that apply to private development projects in addition to public projects. In 2015, Troy’s program, developed by a coalition of citizen groups and various stakeholders, was named one of the best by the National Complete Streets Coalition.

Troy’s municipal code defines "Complete Streets" as “streets that are designed and operated to enable safe access for all users, in that pedestrians, bicyclists, motorists and public transportation users of all ages and abilities are able to safely move through the transportation network.”

Recognizing a need for delegation and enforcement, Troy has appointed a citizen-run Complete Streets Advisory Board to which quarterly reports on upcoming projects and program results are provided. The feature that sets Troy’s policy apart is its application to “all privately constructed streets, parking lots, and connecting pathways.” In addition, project compliance, whether public or private, is determined based on completing and filing a checklist form. This way, the land use review and approval process is capable of building out its safe streets policies as private development occurs.

[*] Robert O’Connor graduated from the Elisabeth Haub School of Law in May 2021 and was a Land Use Law Center Volunteer.
Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

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

July 21, 2021 | Permalink | Comments (0)

Tuesday, July 20, 2021

Land Use, Human Health, and Equity Project, Post 13: Hazard Mitigation Planning: A Case Study

 

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 13 of the Land Use, Human Health, and Equity Project

Editor: Brooke Mercaldi
Contributing Researcher: Jessica Roberts

Hazard Mitigation Planning: A Case Study

 

Over the past twenty years, hazard mitigation plans have proliferated at the local level. There are currently more than 24,000 local governments that have “FEMA-approved or approvable-pending-adoption” local hazard mitigation plans. Each plan proposes a wealth of strategies for mitigating natural hazards of every stripe. This blog will showcase how these plans can utilize land-use strategies to mitigate a wide range of natural hazards, including those that jeopardize public health. To do so, this blog will illustrate how Louisville Metro, Kentucky, has developed and implemented its hazard mitigation plan.  

Louisville Metro, Kentucky

Louisville Metro is a merged city-county government lying along the Ohio River in northern Kentucky.  The state’s humid, subtropical climate makes it particularly vulnerable to flooding and extreme heat hazards, both of which pose profound risks to the public’s health. Extreme heat is “the number one weather-related killer in the U.S.,” causing “more fatalities per year than floods, lightning, tornadoes, and hurricanes combined.” Higher temperatures also “contribute to the build-up of harmful air pollutants” linked to respiratory problems. Likewise, flooding jeopardizes public health, as floodwaters can transmit infectious diseases, contaminate food and drinking water, and carry hazardous materials and waste.

In its hazard mitigation plan, Louisville Metro proposes several innovative approaches for mitigating these hazards. For extreme heat, the plan proposes “incentivizing or requiring minimum albedo levels”—that is, levels of solar reflectance for the resurfacing of roofs, streets, and parking lots. The plan also calls for using vegetation management strategies, such as adopting “a comprehensive tree protection ordinance,” since tree canopies are so effective at reducing ambient air temperatures and managing stormwater runoff.

Critically, Louisville Metro developed this plan in conjunction with its comprehensive plan (“Plan 2040”), which allowed Louisville Metro to incorporate the hazard mitigation plan’s objectives into it. Plan 2040 translated these objectives into specific policies, such as to “encourage design elements that address the urban heat island effect.” Such design elements include “the planting and preservation of trees, cool roofs and green infrastructure.” In other policies, Plan 2040 emphasizes the importance of mitigating flood-related hazards. These policies help establish a vision for Louisville Metro’s future, helping to guide future land use decisions in a way that mitigates flooding and extreme heat hazards.  

To implement these policies, Louisville Metro used its Land Development Code. In this Code, Louisville Metro requires the planting of street trees in residential zones and for certain developers to meet tree canopy standards. It further incentivizes the use of high albedo and vegetated roof surfaces through a point system that determines residential density bonuses. In order to locate development away from flood-prone areas, the Code requires buffer areas along protected waterways. These requirements, among others, effectively translate Louisville Metro’s hazard mitigation plan into law.

While Louisville Metro is but one jurisdiction among many engaged in hazard mitigation planning, the process that Louisville Metro undertook exemplifies the expansive role that hazard mitigation plans can play. By incorporating the hazard mitigation plan into the comprehensive plan’s policies and implementing these policies in land use regulations, communities can become more disaster-ready and resilient. This, in turn, can help promote and protect the public’s health.

  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

July 20, 2021 | Permalink | Comments (0)

Monday, July 19, 2021

Land Use, Human Health, and Equity Project, Post 12: The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 12 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Researcher: Jessica Roberts

The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience

This past year has been, in a word, disastrous. Wildfires burned a record-number of four million acres across California. Phoenix set a record for extreme heat with more than 144 days above 100 degrees Fahrenheit. The Midwest experienced the costliest thunderstorm in U.S. history. The east coast experienced so many hurricanes that forecasters ran out of Latin alphabet letters to name them all. And, of course, all these events occurred in the context of an even larger and more deadly disaster: COVID-19.

As we continue to rebuild and recover from these disasters, it is important to remember that they can, and likely will, happen again. As climate change accelerates, the frequency and severity of natural disasters such as hurricanes, extreme heat, drought, wildfire, and flooding will likely increase. As temperatures and flooding increase, so too may the transmission of vector-borne diseases, such as the Zika virus and West Nile virus.

In 2000, Congress recognized that mitigating the negative impacts of natural hazards begins with a plan. To encourage pre-disaster planning, Congress enacted the Disaster Mitigation Act of 2000 (DMA). This Act provides funding and technical assistance to state and local governments, often contingent on whether these entities develop a FEMA-approved hazard mitigation plan (HMP). This requirement has led to a proliferation of local HMPs throughout the country, each addressing the hazards that the locality is most vulnerable to and proposing innovative strategies to reduce such vulnerability.

Every local, FEMA-approved, HMP includes an assessment of the “type, location and extent of all natural hazards that can affect the jurisdiction.” Natural hazards are defined as including any “source of harm or difficulty created by a meteorological, environmental, or geological event.” Such events can include floods, hurricanes, droughts, wildfires, landslides, and even pandemics.  Since many of these hazards are intricately tied to climate change, some HMPs go a step further by assessing how climate change impacts the community’s resilience and disaster readiness. Local governments then use these assessments to craft innovative strategies that mitigate hazards within the locality.

While these strategies vary widely, many draw on traditional land use planning and regulatory techniques. These include comprehensive planning and zoning, as well as the imposition of site plan, building, and vegetation requirements. To illustrate, HMPs may call for implementing an overlay zone that maps where floods, wildfires, or landslides are most likely to occur. Within this zone, HMPs may call for specific development standards that mitigate the impact of natural disasters, such as impervious surface coverage, vegetation, and site layout requirements. HMPs may also require the local government to incorporate the HMP’s goals, objectives, and strategies into the comprehensive plan so that subsequent zoning is in conformance with it, ensuring that the locality guides future development in a way that promotes resiliency and disaster readiness.

The next blog in this series will explore these strategies more in-depth, showcasing how local governments have utilized HMPs to mitigate natural hazards, prepare for climate change, and promote public health.

  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

July 19, 2021 | Permalink | Comments (0)

Wednesday, July 14, 2021

Can a Fast-Growing City Save Itself?: The Planning Ethic vs. Property Rights in Booming Boise, Idaho

Seemingly out of nowhere, Boise, Idaho, has become one of the country's fastest-growing cities and, according to Zillow, the city that saw the most home value appreciation in the last decade.  The boom is so profound it warranted a section on NBC's Today show.

Having lived in Boise for the last decade, I have seen this growth up close.  As someone who studies growth, I also know that many of the pains Boise is enduring now are similar to other fast-growth western cities.  The question in my mind has been:  can Boise learn the lessons of other fast-growth cities before all the obvious problems of poorly-managed development start to stack up.  And so, I wrote an article trying to think through what Boise should learn from other cities' experience, and also trying to think through the most likely path:  that Boise fails to heed the warnings of these other places that have boomed before us.  For anyone interested in fast-growth cities--or anyone who is interested in some local color about the last major western town to boom--you might check out my draft article, "Can America’s Fastest-Growing City Save Itself?: Property Rights and the Planning Ethic in Boise, Idaho."  

Here is the clip from the Today Show:

 

And here is the teaser intro from my article:

In 1974, an article in Harper’s Magazine declared that “[i]f things go on as they are, Boise [Idaho] stands an excellent chance of becoming the first American city to have deliberately eradicated itself.”  At the time, Boise had decided to try its hand at urban renewal, just as many other cities were abandoning the federally-funded decimation of American downtowns.  In Boise, the map of “blighted” properties to be torn down approximated half of each of the 50 blocks of the city’s downtown.  That is, to say, the city was in the process of eradicating itself with the only plan for what would come next being a mall.  Disinvestment in the urban core followed the plan’s release leaving a hollowed-out core and a bleak future for the city.  The Harper’s article, written by a Boise-born author turned Brooklynite, described the scene:  “[O]n a recent warm, bright Tuesday morning—perfect shopper’s weather—a cannonball, if fired the length of the sidewalk” along the “principal canyon of trade along Idaho Street,” “would have struck exactly nineteen people.”

            How times have changed.  In 2017, the U.S. Census declared Boise the fastest-growing city in America.  In 2020, Meridian and Nampa, two of Boise’s suburban communities, were named among the ten fastest-growing cities in the United States.  In 2021, Zillow announced that Idaho was the state with the highest home price appreciation in the decade between 2010 and 2020.  Almost all of that appreciation came in the Boise metropolitan region, which Zillow noted saw a jaw-dropping appreciation of “over three times” in that decade. 

            In many ways, Boise’s growth shouldn’t be a surprise.  It has been on numerous “best of” lists for decades.  It has a four-season climate without the extremes of other parts of the country and has been named one of the cities with environments expected to adjust to climate change best.  There is plenty to do outdoors, and there is a generally congenial “let’s work together” attitude about most things. 

            There also are not that many more places to develop in the Intermountain West.  The Intermountain West region’s lands are dominated by federal land management agencies, which own and control sixty to eighty percent of land within state boundaries and are thus are off-limits for private development.  Despite the limited space for development, the Intermountain West has been one of the fastest growing regions in the country for several decades.  The result is that Boise is the last of the major Mountain West communities to experience exponential growth.  The city, and increasingly the broader regions known as the Treasure Valley, faces increasingly rapid urbanization but without a history of land use planning tools to assist it or, it must also be noted, the planning spirit.  Planning almost always requires tools afforded only to government, and Idaho—both on the right and left—tends to eschew government for private governance.  The result has been a hodge-podge of development islands in the Treasure Valley that have led to the predictable problems:  traffic, housing affordability problems, concerns over quality of life, crowded schools, strained infrastructure, and the usual fast-growth city complaints about the newcomers.  Despite that, Boise’s growth is almost certainly still at the beginning of its hyperbolic rise.  The growth problems are relative to the city’s not-so-distant past when it nearly took a wrecking ball to the whole city.  There is time to get growth right, but is there the will, and can the region—not just the city—find a way?

            While the changes growth has brought feel new to those who have lived in the city for a long time and sometimes created tension, the Boise region’s moment isn’t that different from mid-sized cities around the country and around the world that are finding themselves suddenly facing growth issues that had previously affected only a few of the world’s largest cities.  As a result, Boise presents a tremendous case study to evaluate the tools available for growing cities in Idaho and other Western states.  It is also a useful case study to evaluate how other similarly-situated mid-sized cities around the country, and perhaps even the world, can plan for sustainable development.  If a developed economy with a functioning rule of law cannot plan for growth in a place like Boise, how can we expect developing countries to face a crush of urbanization into cities that hardly existed just decades ago?

What can Boise and these twenty-first century new cities learn from planning mistakes of twentieth century?  Land use controls first arose, in their modern context, to address the dual rise of urbanization and industrialization.  But planning and land use controls were largely useless in containing the sprawl and congestion of the automobile-dominated city, and arguably complicit in it.  Land use controls also struggled to keep up with changing relationships to government, taxation, and personal autonomy.  What policies were pursued created lop-sided results, whether it was poorly-maintained federal public housing, racially-segregated communities, or a mid-century embrace of community participation that devolved, all too often, into the “not in my back yard” (“NIMBY”) and “build absolutely nothing anywhere near anything” (BANANA”) camps. 

The twenty-first century will almost certainly bring unanticipated challenges to fast-growth cities in addition to those already inherited.  Chief among them will be climate change, as growth almost always reaches into areas of environmental sensitivity and disaster, such as flood and wildfire, that will only increase as the planet warms.  At the same time, development patterns play a key role in addressing climate change because they dramatically affect energy consumption through building efficiency, transit options, and more. 

Put simply, if a place like Boise can address growth effectively, there is great hope not just for this particular region’s future as an exciting place to live and work, but for the hundreds—if not thousands—of twenty-first century new cities around the world facing rapid growth.  But will Boise be able to change its approach to growth and governance fast enough? 

 

July 14, 2021 | Permalink | Comments (0)

Tuesday, July 13, 2021

Land Use, Human Health, and Equity Project, Post 16: Segregation by Law and the Racial Inequity Pandemic

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 16 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: William West [*]

Segregation by Law and the Racial Inequity Pandemic

This post is an introduction to the role of land use and government finance in creating racially segregated neighborhoods. These practices greatly exacerbated the state of racial inequity in America, one of the four pandemics that the Land Use Law Center is addressing in its Land Use, Human Health, and Equity Project. We define racial inequity as a pandemic because of its nation-wide presence and its significant negative effects on public health. Because of its magnitude and pervasiveness, racial inequity cannot be solved by any one approach. However, land use is a particularly appropriate strategy for reversing racial inequity because land use practices played an active role in segregating America.  

In 1910, the first racial zoning ordinance was enacted in Baltimore, Maryland. The ordinance prohibited African Americans from buying homes in neighborhoods that were majority white. The mayor at the time stated, “Blacks should be quarantined in isolated slums in order to reduce the incidence of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.” Many other cities followed this example.

Seven years later, in 1917, the United States Supreme Court held that a similar Louisville, Kentucky racial zoning ordinance was unconstitutional in Buchanan v. Warley. This holding, however, did not address the equal protection rights of minorities. Rather, the Court found that the ordinance violated the Due Process clause because it restricted white property owners’ right to sell their homes.

Nonetheless, urban planners continued to pursue race-based planning strategies that avoided the Buchanan decision. After Robert Whitten explicitly included racial zoning in his 1922 Atlanta zoning plan, the City Planning Commission defended the plan, stating, “race zoning is essential in the interest of the public peace, order and security and will promote the welfare and prosperity of both the white and colored race.” This attempted denial of Buchanan was no surprise as President Hoover’s 1921 Zoning Advisory Committee included Alfred Bettman and Frederick Law Olmstead Jr., who were known segregationists. The model zoning law that the committee created reflected their sentiment that racial divisions were “necessary to maintain the nation and the race.”

Exclusionary and expulsive zoning practices included zoning exclusively for single-family homes restricted by racially restrictive covenants. The restrictive covenants that made these segregated neighborhoods possible prohibited occupancy by races for which the zones were not intended and were upheld by the Supreme Court in 1926 in Corrigan v. Buckley. Single-family zoning districts also prevented future construction of multi-family buildings, financially excluding black families who could afford multifamily rents but not single-family homes. The same year restrictive covenants were upheld, the Supreme Court rejected a challenge against the separation of uses by zoning regulations in Euclid v. Ambler Realty Co. writing, “Very often the apartment house is a mere parasite.”  

In the 1930s, the Federal Housing Administration (FHA) mortgage insurance eligibility standards favored these single-family zoned properties with racial deed restrictions, implicating local land use practices in national financial assistance. The FHA Underwriting Manual from 1938 states that restrictive covenants should include “prohibition[s] of the occupancy of properties except by the race for which they are intended.” In 1948, the Supreme Court overturned Corrigan v. Buckley holding that restrictive covenants may not be enforced by state court order under the equal protection clause of the 14th Amendment in Shelley v. Kramer. The Court did not hold that restrictive covenants violated any rights; only the enforcement of the covenants by state courts was unconstitutional. They continued to exist, casting a pall over the sale of the restricted parcels to minorities and continuing the segregation of the single-family zoned neighborhoods.

Segregated suburbanization was an explicit federal government policy that created generational wealth gaps between races. This support for segregation "is largely responsible for the fact that while the median family income of African Americans is now about 60 percent of whites’ income, the median household wealth of African Americans is only about 5 percent of whites’ wealth.”

At the same time as exclusionary suburbanization, newly developed urban housing further segregated America. In many places, the New Deal’s Public Works Administration segregated public housing in places that it previously did not exist. Urban renewal, implemented by municipal agencies and funded by federal dollars, permitted the demolition of buildings in neighborhoods that were “blighted” without adequate plans to accommodate displaced peoples.

Any short history of racist land use policy in America will inevitably be incomplete, as it is here. This history, however, indicates why a response at the local level is warranted. What was done by local zoning in the name of segregation can logically be undone by the reform of local zoning. Today’s increased sensitivity to the adverse consequences of racial inequity is fostering many local land use efforts to mitigate discriminatory zoning’s effects and prevent its continuation. Blogs and case studies prepared by the Land Use Law Center will describe a number of such initiatives in the hope of encouraging more localities to undo land use law’s negative effects – to mitigate the segregation it helped to cause. See, for example, these blogs on urban heat islands.

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.

[*] William West is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.

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

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

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

July 13, 2021 | Permalink | Comments (0)

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)