Land Use Prof Blog

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Posting from New Orleans (No. 3) -- Forging Successful Non-Profit Partnerships Following Crisis and Disaster: O.C. Haley Boulevard's Story

This blog post follows-up a pair of August 5^th and August 12^th New Orleans posts.  Although I’m home in Atlanta getting ready to begin the new school year, I’m continuing an observance of Katrina’s 9^th anniversary by ‘walking’ O.C. Haley Boulevard and looking at one of the city’s emerging post-storm neighborhood revitalization stories. 

At the outset of this post, it is important to note that there are many more neighborhood stories that deserved to be told, ranging from stretches of St. Claude, Carrollton, and Claiborne Avenues to Freret and lower Magazine Streets.  There are also many neighborhood corridors still struggling to come back all over the city, but particularly neighborhoods lying generally east and a little north of the French Quarter, including the vast area of New Orleans East as well as the Upper Ninth Ward and the Lower Ninth Ward. 

As the son of an architect, I’m always ready to begin discussion of any neighborhood transformation by flashing slides of the ‘bricks and mortar’ improvements.  Those are also the improvements that we as lawyers are most directly involved in supporting: the land acquisitions, the tax credit financings, the bridge loans, the condo documents, the parking easements.  But to get any neighborhood to the point where it can provide the social and economic buttressing to support significant private market transactions, there’s often a foundation of community activism and advocacy.  O.C. Haley Boulevard is no exception.   

Very rarely is any one individual or organization the sole ‘mover’ behind a neighborhood’s re-emergence.  Long before the levees and flood walls breached, non-profit, business owner, and neighborhood advocacy groups were working to lay the groundwork for O.C. Haley Boulevard’s resurgence.  Carol Bebelle, co-founder of the Ashé Cultural Arts Center, moved the Center onto the Boulevard in 1998 in order to sustain and nurture  the stories and traditions of New Orleans’ African American community.  The Cultural Arts Center’s historic building, an adaptive use of a former department store, became a foothold for the Boulevard’s resurgence, supporting non-profit office space, exhibit and meeting space, and 29 apartments.

About the same time, O.C. Haley Boulevard Merchants and Business Association gathered local businesses to spearhead creation of a strategic plan for the Boulevard’s revitalization. 

A couple of years later, in 2000, Café Reconcile opened across the street as an adaptive use of another large historic commercial building, housing a full-service restaurant dedicated to providing culinary training and life skills development to young men and women from the surrounding neighborhoods. 

Along the way, the Boulevard attracted key regional community development partners, and led them to call the Boulevard ‘home.’  These partners included Hope Federal Credit Union (http://www.hopecu.org/) and Good Work Network (http://www.goodworknetwork.org/), both of which concentrate their resources on serving low and moderate income families and developing opportunities for minority and women-owned businesses. 

In short, the Boulevard’s momentum had already been triggered when Katrina’s storm surge filled-up 80 percent of city, leaving the Boulevard and only a handful of other major corridors navigable by car as opposed to boat.  (A relatively current map of the businesses that have grown-up on the Boulevard in the last fifteen years is found on the Merchants and Business Association’s website, http://ochaleyblvd.org/?page_id=5).

Lawyers – often community development lawyers – figure critically in these first stages of a neighborhood’s redevelopment, well before building projects begin ‘going vertical.’  Lawyers are counseling neighborhood groups and businesses on drafting their articles of incorporation and their bylaws or preparing their Form 1029 to seek IRS 501(c)(3) status.  They are helping review applications seeking funding from foundations for planning and predevelopment award monies.  They may be advising their clients to seek funds for a market study to help give current and future businesses a sense of where and how they might invest their capital and other resources.  Or, they may be advocating at city hall for stricter enforcement of health and safety code violations affecting vacant or abandoned properties.  Law students interested in pursuing urban and community development work should gain an appreciation in law school of these critical supporting and counseling roles that lawyers play for community groups.

Earlier this month, I visited with Kathy Laborde, President and CEO of the non-profit Gulf Coast Housing Partnership (GCHP).  Laborde, who has worked on the Boulevard for almost two decades, described the factors that convinced her and the neighborhood’s stakeholders that they could turn around the Boulevard’s fortunes.  GCHP has been a main driver of redevelopment on and around the corridor since Katrina.  In sharing her thoughts and recollections concerning the Boulevard’s rebirth, Laborde described not only the last nine years’ key redevelopment projects, but at the same time she highlighted additional pieces of the urban redevelopment ‘puzzle’ that successful urban and community development lawyers need to appreciate to serve their clients well.

(Photo:  Gulf Coast Housing Partnership offices (gray building) at 1610 O.C. Haley Blvd.)

Location is an essential consideration for any urban redevelopment project.  Against the essential backdrop of an engaged group of neighborhood stakeholders, Laborde outlined the following factors as critical:

1. The O.C. Haley corridor’s historic status as the one of the chief commercial centers for the city’s African American community;
2. The corridor’s proximity to New Orleans’ Central Business District (separated only by the elevated U.S. 90, The Pontchartrain Expressway);
3. The corridor’s proximity to St. Charles Avenue, one of nation’s great historic streets, which runs just 3 blocks to the corridor’s southeast; and
4. The presence of historic commercial buildings fronting O.C. Haley Boulevard and stakeholders’ initial investment in rehabilitation of those structures.

These four areas of strength formed a sort of superstructure for the corridor’s redevelopment; however, by themselves, these four factors were not sufficient to draw significant investment to the corridor.  The challenge for GCHP and the corridor’s stakeholders was how to connect O.C. Haley’s assets to the city’s surrounding areas of strength and investment while maintaining the corridor’s character.  It was at this juncture, nine years ago, Hurricane Katrina unleashed its destructive forces.

Katrina fundamentally altered the way those inside and outside New Orleans viewed the city.  To those living in New Orleans, the telltale watermark stains left by the epic flooding clearly distinguished O.C. Haley Boulevard as ‘high ground’ that did not flood.  To those outside New Orleans, particularly local and national foundations and philanthropies, O.C. Haley Boulevard bordered one of the city’s toughest neighborhoods with one of its deepest pockets of poverty.  Outsiders also appreciated that the Boulevard was surrounded by areas of significant strength, including the city’s wealthier Uptown neighborhoods, the Central Business District, St. Charles Avenue, and the former C.J. Peete (Magnolia) development which was a 1930s-era public housing development then-slated to receive millions of dollars in HUD funds for complete redevelopment into the new mixed-income Harmony Oaks community. 

Outside funders immediately saw the Boulevard in a new way.  It stood out not only as a neighborhood where the private foundations and philanthropic funders saw they could achieve programmatic goals of creating more equitable, inclusive, and prosperous inner-city neighborhoods, but also these private funders were buoyed by the fact that high levels of investment were occurring all around the Boulevard.  Further, just as foundations and philanthropies were looking to leverage their investments, so too was the New Orleans Redevelopment Authority (NORA), which was responsible for making decisions about deployment of a tranche of federal disaster block grant monies for commercial corridor investments.  It was a ‘no brainer’ for NORA to join the catalytic investments of the Greater New Orleans Foundation, Kellogg, Rockefeller, Ford, Surdna, and the J.P. Morgan Chase Foundations.

Make no mistake – even with this level of interest, the Boulevard was hardly awash in cash.  In a post-Lehman Brothers world, banks had a low temperature for risk, and in post-Katrina New Orleans where the levee and flood control system rebuilding was not yet complete, caution was the rule for commercial lenders.  But what the philanthropic and government funding accomplished was to make the development ‘math’ work for deals dependent on tax credits and tax exempt bonds.  A non-profit developer could run a development pro forma that now yielded at least a sliver of a development fee.  The challenge for those developers and their clients was to complete successful residential and commercial development projects that would help New Orleanians and visitors alike see O.C. Haley Boulevard as a safe place to live and work.  As Laborde explains, this was the “show me stage” of the corridor’s redevelopment.  Beginning in 2007, this is exactly what the Boulevard’s stakeholders began to do.

Over the last seven years, GCHP and the Boulevard’s other stakeholders have completed a steady stream of housing, restaurant, office and retail projects.  The first pivotal project was GCHP’s completion of The Muses, a 263-unit mixed-income apartment community, which opened in 2009.  This project brought hundreds of new residents to the Boulevard and helped bridge the three-block real estate market 'canyon' between St. Charles Avenue and the Boulevard.

(The Muses is located a block off of O.C. Haley at 1720 Baronne Street).

The tipping point project may have been GCHP’s redevelopment of almost an entire city block between Martin Luther King, Jr., Boulevard, Thalia Street, O.C. Haley, and Rampart Street.   GCHP convinced the New Orleans Redevelopment Authority to move its 45 employees from its downtown rented office space to become the anchor tenant of an office building with ground floor commercial space.  This office and retail building were funded with New Markets Tax Credits, NORA’s investment of $2 Million in disaster Community Development Block Grant (dCDBG) funds, and private financing.  The office building, in turn, helped secure financing for an adjacent 75-unit affordable senior housing development. 

 

(Photo: New Orleans Redevelopment Authority office building, 1409 O.C. Haley Blvd.; 75-unit senior housing development can be seen to the right and to the rear of NORA's building.)

Another important project was Café Reconcile’s expansion and rehabilitation of its existing restaurant and training space.

(Photo:  Café Reconcile restaurant and training facility at 1631 O.C. Haley Blvd.; the recently completed expansion occupies the two-story light tan brick building.)

Café Reconcile’s $6.5 Million expansion was funded by private donations, NORA dCDBG funds, and state and federal tax credits.

“Success in community development,” Laborde stresses, “is about getting people to follow.”  And they are doing so on the Boulevard.  More projects are just weeks and months from completion, including the adaptive use of an historic school as a grocery store and offices, the renovation of two large retail buildings into the Southern Food and Beverage Museum (SoFAB), including The Museum of the American Cocktail, as well as the first home of the New Orleans Jazz Orchestra (NOJO), including its 360-seat performance venue.  The projects soon coming on-line include:

 

(Photo: the former Myrtle Banks School at 1307 O.C. Haley Blvd., which is being redeveloped by Jonathan Leit of Alembic Community Development.)

The school’s $17 million renovation is financed by New Markets Tax Credits, historic tax credits, $1 Million from the City’s dCDBG-funded Fresh Food Retailer Initiative, $900k from the New Orleans Redevelopment Authority, and $300k from the Foundation for Louisiana.

(Photo:  Currently under construction are (left) New Orleans Jazz Orchestra (NOJO) Market at 1436 O.C. Haley Blvd. and (right) the Southern Food and Beverage Museum (SoFAB) at 1504 O.C. Haley Blvd.)

The NOJO Market and SoFAB redevelopment projects critically anchor two separate O.C. Haley Boulevard blocks where the Boulevard meets Martin Luther King, Jr., Boulevard.  NOJO’s development is financed by State of Louisiana historic tax credits, State of Louisiana theater, musical, and theatrical production tax credits, $10 Million from Goldman Sachs’ Urban Investment Fund, an $800k loan from NORA’s commercial revitalization gap loan fund, and a bridge loan from Prudential Insurance Company.  NOJO will open in the spring of 2015.  A ribbon cutting for the SoFAB redevelopment is set for September 29, 2014.

Next week we will wrap-up our discussion of O.C. Haley and Katrina’s 9^th anniversary with a discussion of what urban redevelopment professionals are looking for in the attorneys they hire.   

John Travis Marshall, Georgia State University College of Law

Bipartisan Policy Center Housing Commission Report

I am just finished streaming the press conference for the release of the Bipartisan Policy Center's Housing Commision Report.  Led by its Co-Chairs, Sens. George Mitchell, Mel Martinez and Kit Bond, as well as former HUD Secretary Henry Cisneros, the Commission is offering a far-reaching set of recommendations regarding the housing finance system, public subsidy for affordable housing development and preservation (particularly in rural areas) and promotion of housing counseling as a vital resource.  Even if the Executive Summary is too long for you, I would encourage you to check out a two-page article available on Politico authored by the four co-chairs.   

Jim K.

Proposed Final Settlement in Baltimore Fair Housing Case

The Baltimore Sun reported this past weekend on the proposed final settlement in Thompson v. HUD, a fair housing case that dates to 1995. 

The case arose when the American Civil Liberties Union of Maryland sued HUD, saying that it demolished old public housing high-rises where mostly African-Americans lived — only to move the residents to equally segregated housing and poor conditions in other parts of the city.

Attorneys for the residents said Friday that the government in effect “perpetually locked” African-American families in neighborhoods of concentrated poverty, violating federal civil right laws. The settlement, which would cover all claims in the case, was filed in conjunction with Baltimore City and the Housing Authority of Baltimore City.

As the Legal Defense Fund, which worked with the ACLU on the case, notes in its press release, the court had ruled in 2005 “that the U.S. Department of Housing and Urban Development (“HUD”) violated the Fair Housing Act by unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.  Judge Garbis held that HUD must take a regional approach to promoting fair housing opportunities throughout the Baltimore Region.” 

The settlement requires HUD to allocated money towards expansion of the Baltimore Housing Mobility Program, which has been in place since a partial settlement in the 1990s.  The program has enabled over 1,800 families to move to neighborhoods in other parts of the city and to surrounding suburbs.  Under the settlement, the program will, among other things, fund vouchers and counseling over the next seven years for up to 2,600 additional families.

The case is particularly interesting given its regional approach to questions of housing and segregation.  Housing vouchers can be used throughout the region, enabling participants to voluntarily move to suburban areas with greater employment and educational opportunity.  The program provides extensive housing counseling and mobility assistance to aid families interested in moving to lower-poverty neighborhoods.  For more details, see this  2009 report discussing the progress of the program at that time. 

John Infranca

Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation

Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation?  The abstract:

Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.

The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.

While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.

Matt Festa

Disputes over Westchester Housing Settlement Continue

    Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues.  By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing."  The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law.  The DOJ intervened and negotiated a settlement on behalf of HUD.  The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing.  The County also must affirmatively market the housing in surrounding areas with significant non-white populations.  The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process). 

    The County argues that it is complying with the settlement and is ahead of schedule in constructing the units.  However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns.  The County has responded that the cost and availability of land restrict the options available.  The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement.  In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.

        The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice.  HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary.  The County's AI concluded that no exclusionary housing existed in its municipalities.  Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach. 

The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan."  It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary.  Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement. 

HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.  

John Infranca

 

NYT Story on Siting of Affordable Housing in Texas

The New York Times, through its partnership with the nonprofit news organization Texas Tribune, published today a story on the powerful state law tools that support NIMBYism in the siting of affordable housing. Texas Tribune along with the San Antonio Express-News studied public records to learn the extent of the problem:

The examination of data from the Texas Department of Housing and Community Affairs, which administers the biggest federal housing subsidy program in the state, found that of $9.7 billion in tax credits awarded from 1990 to 2011, more than three-quarters subsidized the construction of apartments in neighborhoods mostly made up of poor blacks and Hispanics. Few units built with support from the Low-Income Housing Tax Credit program, which gives federal incentives to private developers to build or rehabilitate low-cost apartments, were in areas that are predominantly white.

The examination found that:

¶Of the 193,000 tax-credit units subsidized statewide, 78 percent are in census tracts where more than half of all residents are minorities. By comparison, only 59 percent of all rented apartments are in the same areas, according to census data.

¶Roughly 31 percent of the units across the state are in neighborhoods with high concentrations of minority residents — 90 percent or more — which is about twice the rate for all rental housing.

¶Eighty percent of the low-income apartments, but only 64 percent of all rented units, are in poor census tracts where residents earned less than the state median household income, $49,646.

Jim K.

New HUD Rules on Access to Housing Regardless of Sexual Orientation and Gender Identity

From a recent HUD press release:

HUD SECRETARY DONOVAN ANNOUNCES NEW REGULATIONS TO ENSURE EQUAL ACCESS
TO HOUSING FOR ALL AMERICANS REGARDLESS OF SEXUAL ORIENTATION OR GENDER IDENTITY
New regulations, published as final in the Federal Register next week, will go into effect in 30 days

WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun Donovan announced today new regulations intended to ensure that HUD's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity. Donovan previewed the announcement at the 24^th National Conference on Lesbian, Gay, Bisexual and Transgender (LGBT) Equality – Creating Change. View the final rule here.

“The Obama Administration has viewed the fight for equality on behalf of the LGBT community as a priority and I’m proud that HUD has been a leader in that fight,” said Secretary Shaun Donovan. “With this historic rule, the Administration is saying you cannot use taxpayer dollars to prevent Americans from choosing where they want live on the basis sexual orientation or gender identity – ensuring that HUD’s housing programs are open, not to some, not to most, but to all.”

The new regulations, published as final in the Federal Register next week, will go into effect 30 days after the rule is published.

Matt Festa

Remarks by the President on Housing

President Obama gave a speech yesterday in Falls Church, VA, explaining his State of the Union thoughts on housing.  From the White House transcript:

As I indicated at the State of the Union last week, I am sending Congress a plan that will give every responsible homeowner in America the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. (Applause.) No more red tape. No more runaround from the banks. And a small fee on the largest financial institutions will make sure it doesn’t add to our deficit.

I want to be clear: This plan, like the other actions we’ve taken, will not help the neighbors down the street who bought a house they couldn’t afford, and then walked away and left a foreclosed home behind. It’s not designed for those who’ve acted irresponsibly, but it can help those who’ve acted responsibly. It’s not going to help those who bought multiple homes just to speculate and flip the house and make a quick buck, but it can help those who’ve acted responsibly.

What this plan will do is help millions of responsible homeowners who make their payments on time but find themselves trapped under falling home values or wrapped up in red tape.

Matt Festa

NYU Furman Center Releases Paper on Housing Vouchers and Crime

The NYU Furman Center for Real Estate and Urban Policy has just sent out news of its latest fascinating and important study: American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study is authored by co-director Ingrid Gould Ellen, Michael C. Lens, and Katherine O'Regan. From the announcement:

We are pleased to share with you the latest paper from the Furman Center, American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study explores the link between housing vouchers and neighborhood crime rates. More than two million renters now receive Housing Choice Vouchers, which subsidize rent in private apartments. Although voucher holders live in a large variety of neighborhoods, community opposition to vouchers can be fierce due to perceptions that voucher holders will both reduce property values and heighten crime. The widely-circulated 2008 Atlantic Monthly article “American Murder Mystery” highlighted this controversy.

Our study, which examines changes in crime and voucher use over 12 years in ten major U.S. cities, finds no evidence that an increase of voucher holders in a community leads to increases in crime. Instead, we find a different association: that voucher holders are more likely to move into areas when crime rates are already rising. The paper was featured in an article in The Atlantic Cities, and presented September 19 at an internal briefing held at the HUD headquarters in Washington, DC. You can read the full paper here and accompanying fact sheet here.

When it comes to housing and land use, everyone has an opinion, because everyone lives somewhere and has anecdotal information. It's great to have a study like this to clarify popular conceptions based on facts. The Furman Center leads the way in producing these kinds of helpful studies.

Matt Festa

Seicshnaydre on Public Housing and Racial Segregation in Post-Katrina New Orleans

Stacy Seicshnaydre (Tulane) has posted How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. L. Rev. 661 (2011). In it, she explores how quantity-minded public housing advocacy and NIMBY-style public housing resistance has combined to perpetuate the racial segregation that federal law prohibits. Here's the abstract:

This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.

Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.

This Article describes a perennial dynamic of two impulses pulling in opposite directions—the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.

Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and—as post-Katrina New Orleans illustrates—as they will continue to do, again and again and again.

Jim K.

Furman Center launches SHIP

Some exciting news from NYU's Furman Center for Real Estate & Urban Policy:

We are thrilled to announce the launch of our Subsidized Housing Information Project (SHIP), a new resource designed to provide housing agencies, community organizations, tenants and the affordable housing industry with the information they need to develop effective preservation strategies.

The SHIP database contains extensive information on nearly 235,000 units of privately-owned, subsidized affordable rental housing in New York City. Compiled from 50 different public and private data sources, the information is accessible through a user-friendly, interactive data search tool available on our website.

Our Institute for Affordable Housing Policy has simultaneously released the State of New York City’s Subsidized Housing report, which provides a comprehensive analysis of the properties in the SHIP database, and identifies opportunities to preserve affordable housing in the coming years. Another online tool, the Directory of New York City Affordable Housing Programs (Beta) summarizes nearly 200 programs that have been used in New York City to develop affordable housing since the 1930s.

The SHIP was made possible through a collaboration with the New York City Department of Housing Preservation and Development, the New York City Housing Development Corporation, New York State Homes and Community Renewal, and the U.S. Department of Housing and Urban Development, and support from the John D. and Catherine T. MacArthur Foundation, the F.B. Heron Foundation and NYU Law alumnus Herbert Z. Gold (¢40). The New York City Council has also committed to support technical assistance and training for community-based organizations on how to use the database in their preservation efforts and advocacy. We have also received invaluable guidance and support from members of the SHIP Advisory Committee, the IAHP Advisory Board and dozens of affordable housing experts.

Matt Festa

Glaeser on Rethinking the Federal Bias Toward Homeownership

Harvard economist Edward Glaeser--author of much fascinating work on land use and urban development, including his latest book, Triumph of the City-- has posted his latest article, Rethinking the Federal Bias Toward Homeownership, forthcoming in HUD's Cityscape: A Journal of Policy Development and Research, Vol. 13, No. 2 (2011). The abstract:

The most fundamental fact about rental housing in the United States is that rental units are overwhelmingly in multifamily structures. This fact surely reflects the agency problems associated with renting single-family dwellings, and it should influence all discussions of rental housing policy. Policies that encourage homeowning are implicitly encouraging people to move away from higher density living; policies that discourage renting are implicitly discouraging multifamily buildings. Two major distortions shape the rental housing market, both of which are created by the public sector. Federal pro-homeownership policies, such as the home mortgage interest deduction, weaken the rental market and the cities where rental markets thrive. Local policies that discourage tall buildings likewise ensure that Americans have fewer rental options. The economic vitality of cities and the environmental consequences of large suburban homes with long commutes both support arguments for reducing these distortions.

A very important argument; I'm looking forward to reading the whole thing.

Matt Festa

Nichols on Tenant Protections under the PTFA

Elan Stavros Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties, forthcoming in the Journal of Affordable Housing, Vol. 20, No. 2, Winter 2011. The abstract:

The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.

This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.

To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.

Matt Festa

HUD's HOME Program Attacked and Defended

Under the title "Million-Dollar Wasteland", the Washington Post has published a series of investigative articles attacking the effectiveness of HOME, HUD's principal source of targeted funding for community-based development of affordable housing. The reporters' data analysis lead them to conclude that more than 700 affordable housing projects granted more than $400 million in HUD funds are "delayed or abandoned." In a posted response, HUD says its own review shows that most of these supposedly failed projects are "actually completed and occupied." Unsurprisingly in this fiscal climate, congressional leaders have called for an investigation into the HOME program (Post follow-up story). No doubt more to follow.

Jim K.

Alexander on New Regionalist Approaches to Sustainable Communities

Speaking of HUD, here's a new article from Lisa T. Alexander (Wisconsisn) called The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, forthcoming in the Fordham Urban Law Journal, Vol. 38 (2011).  The abstract:

This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.

Matt Festa

Washington Post Investigative Report on HUD

Courtesy of Mark Edwards at Property Prof, a link to what looks like an important and troubling report, Million-Dollar Wasteland: HUD's Mismanagement of America's Affordable Housing.  Here's Edwards' initial reaction:

Given that Congress is looking for areas to budget-cut, I suspect this series could be a game-changer for HUD.  That's unfortunate, because the need for affordable housing in the United States is enormous.  No doubt there is waste at HUD.  But I suspect that the committed and well-intentioned people at HUD are trapped in a downward spiral: they aren't given enough resources to adequately oversee the projects they fund; the projects they fund are wasteful; so their resources are cut.

Matt Festa

Iglesias on Fair Housing Remedies and the Two-Person-Per-Bedroom Standard

Tim Iglesias (San Francisco) has posted Moving Beyond the Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards.  Here's the abstract:  

New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-persons-per-bedroom standard and provides guidance to courts in deciding these cases.

Jim K.

How do you feel about the federal government controlling housing?

On Friday, the federal government assumed control over the Philadelphia Housing Authority.  For months, The Inquirer in Philadelphia had been reporting about corruption and mismanagement in the Housing Authority's finances, including "$38.3 million in legal expenditures since 2007."  "That tab included conflict-laden payment to the law firm of [the son of former Mayor Street, who also just resigned as chair of the Housing Authority]."  In addition, it included $11.7 million to Ballard Spahr, where former Gov. Ed Rendell is a partner now (and was prior to being governor). As a point of comparison, the Housing Authority paid $10.3 million (16,700 units of housing and 14,800 vouchers) in legal fees in 2010, while New York City's housing authority paid $8.6 million (180,000 units of housing and 99,000 vouchers).  The Philadelphia's Housing Authority's executive director was fired in September (for, among other things, settling sexual harassment complaints against him for $648,000) and the board resigned last week.

This all led me back to an article I wrote 5 years ago critical of public authorities, focusing primarily on the lack of relationship between public funds and the democratic process.  At the time, public authorities issued more debt per year than all the cities and states combined (i.e. borrow) and they held more debt than all the cities and states combined (i.e. borrowed).  Many states had the majority of their debt held by public authorities.  New York, for example, had about 90% of its debt held by public authorities.  I then discussed how typical elections for mayor, governor, representatives, and councilmembers have little impact on the decisionmakers at public authorities (see, e.g., Gov. Mitt Romney's desperate attempts to remove the head of the Mass Turnpike Authority).  This lack of oversight and accountability, I argued, allows for mismanagement, corruption, and graft. 

With so many of public authorities existing (more than all cities combined) and performing significant land use functions including, housing, transportation, economic development, water, sewer . . . etc, I wonder how, if at all, infusing more democracy into the control of these functions would impact land use today.  Would placing these functions under a city or state allow for more integration of land use issues?  Would it allow cities to be more flexibility in spending on land use issues (see, e.g., Philadelphia's unsuccessful attempt to gain access to Philadelphia Parking Authority's funds, generated from land in Philadelphia)?  How would it impact the democratic process?  I'm not sure where these functions should reside, but with each new revelation of public authority corruption, I question whether we have the most efficient system.

Jon Rosenbloom

Meyer on Community Participation in Environmental Cleanup Decisions

The last installment in the Cityscape trilogy is Peter Meyer's Brownfields, Risk-Based Corrective Action, and Local Communities.  Here's the abstract: 

This article addresses the problems facing communities that suffer both environmental risks from past contamination and depressed economic activity. In such settings, redevelopment of contaminated sites and the associated economic development may require compromised standards for environmental mitigation. This potential conflict is often resolved through risk-based corrective action on sites cleaned only for their prospective use. But partial cleanups can be shown to face inevitable failure at some future date. Thus, in such an approach, communities face risks that they need to understand and should be capable of accepting or rejecting. The article considers these risks and assesses four alternative land use control strategies for assuring community participation in making decisions about both the cleanup process today and the response to risks of failure in the future.

Jim K.