Thursday, March 3, 2022
Elisabeth Haub Law School of Law
Land Use Law Center
Blog No. 40 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: John R. Nolon, Distinguished Professor Emeritus [*]
In this 40th and final blog in our series of reports from our Land Use, Human Health, and Equity Project, we focus on lessons we learned over the past two years. During that time, over 30 students working at the Land Use Law Center labored to find and report on innovative land use strategies by local governments to mitigate the adverse effects of catastrophic environmental change on human health.
Lesson One: Six years ago, we posted over 20 blogs on GreenLaw celebrating the centennial of land use law. Our new project dramatically reaffirmed the lesson we learned from that historical review: that local governments adopt innovative land use strategies as they confront serious new environmental challenges. Our current student team learned that municipalities were challenged like never before when, roughly two years ago, four catastrophes emerged simultaneously: COVID-19, profound evidence of racial inequity, a nation-wide housing crisis, and evidence in nearly every community of devastating climate change. The students expected to find many local governments creating innovative land use strategies; they were not disappointed.
Lesson Two: In January of 2020, we created a student-led Land Use, Human Health, and Equity research team to track, analyze, and report on emerging land use strategies. Our students produced 40 blogs for this series. As reported in Blog #39, we learned that many groundbreaking innovations have emerged and many more are on the way. We also relearned, as engaged law professors know, that students are capable of leading the way in discovering and disclosing how the law works when society is challenged. They are deeply invested in problem solving for the future. The remaining lessons demonstrate that point.
Lesson Three: Perhaps the most dramatic change in land use planning was discovered by our LLM team member, Rhea Mallett. She found several examples of local governments adopting what she dubbed eCPs: equitable comprehensive plans (see Blog 26: A New Era of Equity-Based Comprehensive Planning…Finally and Blog 27: Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities). Local governments are adding equitable principles and strategies to their land use plans. They are admitting the racist impacts of previous plans and land use laws, apologizing for them, and committing to a variety of land use reforms to create more equitable communities. Rhea’s foundational article on her findings of first generation eCPs will appear in a forthcoming issue of the Zoning and Planning Law Report.
Lesson Four: In an equally dramatic finding, our 2L Land Use Scholar, William West, discovered several other communities that are using Racial Impact Analyses to evaluate and make more equitable their land use policies, plans, and projects. William discussed his findings at a panel sponsored by the ABA Section of State and Local Government Law at the ABA’s mid-year meeting where the novelty of his work was acknowledged. He will be the author of an article on the advent of land use racial impact studies, which will also appear in the Zoning and Planning Law Report this spring.
Lesson Five: Despite the plenary power of local land use authority, municipalities sometimes need direction from their state governments when they ignore critical issues. This is the case with the high cost of housing attributed in significant part to zoning that excludes affordable types of housing (see Blog 20: Housing, a Crucial Determinant of Health; Blog 21: ADU Introduction; Blog 22: NIMBY Restrictions Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity; and Blog 23: Zoning to Fill the Missing Middle Gap). The housing crisis has led several states to mandate greater density in single-family zones, which cover an outsized share of the landscape in many communities. Other state mandates are emerging, requiring greater density near transit centers, for example, and reversing the presumption of validity of land use decisions that reject affordable housing projects. Land Use Scholar Bailey Andree is coauthoring an article with our Professor Shelby Green on these actions. It will be published in the ABA’s Property and Probate Journal.
Lesson Six: For several years, we have been studying several types of gentrification and the displacement of current, lower-income residents (see Blog 33: Gentrification: Remedies and Consequences and Blog 34: What is Climate Gentrification and Why is it Different?). Despite its seriousness, the problem has not been addressed effectively by local action in most gentrifying communities. Other than trying to stem displacement by mandating that 10-20% of new housing be affordable, solutions have been hard to find. This too is changing, for example, with communities inventing zoning strategies to create types of housing that are 100% affordable and giving priority occupancy rights to those facing displacement. Land Use Law Scholar Gabriella Mickel will publish the results of her impressive findings on this topic in the next issue of The Urban Lawyer.
Lesson Seven: Zoning that creates Transit Oriented Development (TOD) is a much-needed innovation that creates low carbon land use near transit stations. Our students discovered that TOD, however, could cause housing price increases that further displacement. Students found municipalities that are requiring affordable housing in TOD areas to prevent displacement and the loss of needed workers. They called this strategy “equitable Transit Oriented Development,” or eTOD.
Lesson Eight: Heat waves are a principal cause of death directly related to global warming. Not surprisingly, Urban Heat Island (UHI) areas exist in formerly redlined areas, areas zoned for low-cost housing and brownfield development. Restrictive FHA underwriting standards prevented lending in these neighborhoods. Together, zoning and these lending standards stymied property improvement and infrastructure development where trees are few, pavement is pervasive, and temperatures on hot days are markedly higher than in nearby single-family neighborhoods shaded by ample tree density. Localities are finding ways to increase tree canopies in UHI areas to preserve trees, enhance shading, protect tree roots, and require developers to add vegetative features to their developments (see Blog 9: Urban Heat Islands and Equity and Blog 10: Urban Heat Island and Equity: What Can Local Governments Do?).
Lesson Nine: Our students were aware that these four catastrophes have different causes, call for different solutions, and need to be addressed comprehensively to avoid strategic collisions. Their search for a holistic approach led them to Portland where they discovered a city addressing each of the catastrophes in an integrated fashion directed and linked by new objectives and strategies added to its comprehensive land use plan (see Blog 29: Addressing the Four Pandemics – A Case Study).
Lesson Ten: The Portland example and, cumulatively, all 140 land use strategies found by our students are efforts to create resilient communities that can absorb and adjust to the shocks of climate change and the other critical challenges they face. The first blog in our series noted that we need “to reframe sustainability” and to “contribute to communities’ healthy and resilient post-pandemic futures while also reinvigorating cities’ climate change management capabilities.” (See Blog 1: Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project.) Our students are aware of the overpowering influence that climate change is having today, right now, on their careers, families, and environment. They see great promise in embracing resilience as a core principle for our conversations and our policies. They recommend that, after a short break, we reconvene as the Land Use Resilience Initiative. “Land Use” because it is that body of law that we use to shape neighborhoods and larger settlements. “Resilience” because it is our interconnected built and natural environments that must be capable of adjusting to the changing climate.
Our students also recommend that we devise new ways of communicating the results of our research. They want to move beyond blogs and outside the academy. They want to use social media methods to reach stakeholders at the ground level who need to know how to turn the results of our research into effective local strategies. Their outstanding work on our Land Use, Human Health, and Equity Project makes it clear that they know what they are talking about. Stay tuned.
Postscript: I have noticed an uptick in the number of our law students who come to us with undergraduate concentrations in studies such as communications, psychology, behavioral economics, and extracurricular engagements with groups and organizations at the grass roots level. This may explain their interest in sidebar disciplines that we teach such as complex adaptive systems, the diffusion of innovation, and collaborative subsidiarity. Our students represent a generation that has to construct policy and make critical decisions effectively. It is not enough to adopt a collection of innovative land use strategies. These sidebar disciplines teach that systems thrive through the connectivity of their component parts, that innovations are spread by peer-influencers, and that local governments must collaborate with state and federal agencies to solve larger problems. Intuitively, our students know the importance of these effective communication skills. They may be teaching us about the connective sinews and flexible tissues that create lasting resilience.
[*] John R. Nolon is a Distinguished Professor of Law Emeritus at the Elisabeth Haub School of Law and is Counsel to the Land Use Law Center. He supervises student research and publications regarding land use, sustainable development, climate change, housing insecurity, racial inequity, and the COVID-19 pandemic.
Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.
The previous blogs in the series are listed here:
- Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
- Planning for Public Health: A New Beginning for Land Use Law
- The Role of Density in Combatting Climate Change and COVID-19
- Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
- State & Local COVID-related Emergency Powers: Individual Rights
- COVID-Related Land Use Regulations and Judicial Deference
- Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
- Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
- Urban Heat Islands and Equity
- Urban Heat Island and Equity: What Can Local Governments Do?
- The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
- The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
- Hazard Mitigation Planning: A Case Study
- Complete Streets: Protecting Public Health
- Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
- Segregation by Law and the Racial Inequity Pandemic
- Combating Food Swamps to Improve Equity and Public Health
- The Pandemic Plan for Healthy Buildings
- Remediating Distressed Properties to Improve Public Health
- Housing, a Crucial Determinant of Health
- ADU Introduction
- NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
- Zoning to Fill the Missing Middle Housing Gap
- Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
- Racial Impact Analyses
- A New Era of Equity-Based Comprehensive Planning…Finally
- Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
- Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
- Addressing the Four Pandemics – A Case Study
- Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
- Putting the “e” in TOD
- The Four Pandemics Explained and Addressed by Land Use Law and Policy
- Gentrification: Remedies and Consequences
- What is Climate Gentrification and Why is it Different?
- Using Supportive Housing to Address Homelessness
- Low Carbon and Resilient Land Use: Part 1
- Low Carbon and Resilient Land Use: Part 2
- Low Carbon and Resilient Land Use: Part 3
- Gaining Ground on Four Catastrophes: How to Find and Use Strategies to Protect Human Health
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