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)

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

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

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

 

May 18, 2021 | Permalink | Comments (0)

Thursday, May 6, 2021

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

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

Urban Heat Islands and Equity

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

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

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

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

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

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

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

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

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

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

May 6, 2021 | Permalink | Comments (0)

Sunday, April 25, 2021

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

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

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

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

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Gina Hervey[**]

 

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

 

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

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

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

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

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

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

 

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

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

 

 

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

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

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

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

 

 

April 25, 2021 | Permalink | Comments (0)

Tuesday, March 2, 2021

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

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

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

Drafts due June 15, 2021

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

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

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

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

March 2, 2021 | Permalink | Comments (0)

Monday, February 22, 2021

Maine Law Seeks Visiting Property Law Prof

From Sarah Schindler...

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

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

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

February 22, 2021 | Permalink | Comments (0)

Thursday, February 18, 2021

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

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

From Susan Daggett:

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

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

Download RMLUI WPWS Flyer (002)

February 18, 2021 | Permalink | Comments (0)

Wednesday, February 10, 2021

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

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

ABA Journal of Affordable Housing & Community Development Law

Accepting Applications for Next Editor-in-Chief

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

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

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

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

February 10, 2021 | Permalink | Comments (0)

Friday, January 29, 2021

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

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

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

January 29, 2021 | Permalink | Comments (2)

Wednesday, January 13, 2021

ABA Affordable Housing Student Writing Competition - Entries Due March 25

 
Forum on Affordable Housing‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
 
 
American Bar Association.
 
 
Forum on Affordable Housing and
Community Development Law
 
 
 
 
 
 
 
 
 
View Writing Competition Rules
 
 
 
 
Link to Shop A B A. Link to A B A Connect. Link to Facebook.
 
 
 
 
{{AA_HTML Standard - Chicago Footer}}
More ABA Resources
 
 
 

January 13, 2021 | Permalink | Comments (0)

Tuesday, December 22, 2020

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

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

COVID-Related Land Use Regulations and Judicial Deference

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

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

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

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

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

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

December 22, 2020 | Permalink | Comments (0)

Friday, December 18, 2020

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

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

Housing in Rural Communities

Drafts due March 1, 2021

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

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

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

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

December 18, 2020 | Permalink | Comments (0)