Thursday, March 10, 2022

2L/3L Scholarship to ALI-CLE Eminent Domain and Land Valuation Litigation Conference

The following message is from Dwight Merriam:

Subj:  Opportunity for students interested in property rights  

Greetings.

As a longstanding member of Owners' Counsel of America https://www.ownerscounsel.com/ (I am the OCA designee for the State of Connecticut - OCA selects one lawyer from each state), I thought you would want to hear about an opportunity for your 2L/3L students interested in private property rights. 

Last year OCA started a scholarship in the name of its founder, Toby Prince Brigham, a lawyer who spent nearly 50 years defending private property rights. The scholarship pays for all of a student's expenses to attend the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (now entering its 40th year and attended this year by about 200, the first ALI-CLE in-person meeting since the pandemic), where the student will meet and network with leading property rights and eminent domain lawyers and scholars from across the country, while also learning about the substantive law. 

This year the conference was held in Scottsdale, Arizona, and next year it will likely be in another great location. If you know of a student who may be interested in applying for this scholarship, please have them contact Leslie Fields, Executive Director of OCA at [email protected] or 303-806-5155. Further details about the scholarship are included in the attached Brochure. 

Applications are due by October 1st of this year.  

Regards,

Dwight

Download Toby Prince Brigham OCA Scholarship Brochure

 

March 10, 2022 | Permalink | Comments (0)

Thursday, March 3, 2022

Land Use, Human Health, and Equity Project, Post 40: Lessons Learned

Elisabeth Haub Law School of Law
Pace University
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 [*]

Lessons Learned

 

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:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?
  35. Using Supportive Housing to Address Homelessness
  36. Low Carbon and Resilient Land Use: Part 1
  37. Low Carbon and Resilient Land Use: Part 2
  38. Low Carbon and Resilient Land Use: Part 3
  39. Gaining Ground on Four Catastrophes: How to Find and Use Strategies to Protect Human Health

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

 

March 3, 2022 | Permalink | Comments (0)

Thursday, February 17, 2022

Comments on Boise's Draft Zoning Code Revision

This post is admittedly probably of interest only to Boise folks... 

Boise is in the process of overhauling its zoning code for the first time since 1965.  Below is the core of comments I submitted today on the draft code revision.  

 

Madam Mayor:

I am writing to offer comments on the proposed zoning code rewrite draft recently released by the city. 

By way of introduction, I am a law professor at the University of Idaho College of Law in Boise where I teach courses on property, land use, and real estate.  I am also the author of West’s Land Use and Sustainable Development Law, the former editor of the American Bar Association’s Journal of Affordable Housing & Community Development Law, and the author of over 40 articles on land use subjects.  I also recently completed a casebook on Idaho land use law.  In addition, I am trained as an urban planner having received by master’s in city and regional planning from U.C. Berkeley and am a member of the American Institute of Certified Planners (AICP).  Perhaps most importantly, I am also a former Planning & Zoning Commissioner. 

To the extent they are helpful, below are several thoughts I had both directly related to, and ancillary to, the released draft.  Hopefully they will be of some use.

First, a revision of Blueprint Boise is understandably not within the scope of this zoning code re-write.  However, as the comprehensive plan for the city, Blueprint Boise play an important role—as required by state statute—in whether such discretionary permits should be granted.  The problem with Blueprint Boise, however, is that it is not just the text of the original document, but also the incorporation of nearly fifty additional plans that are not integrated into the plan and the relevance of which is not immediately known.  To the extent that discretionary permits continue to analyze the comprehensive plan, as they must, a better way to access all of the documents integrated into Blueprint Boise is essential to make the document usable in the discretionary permit decision making.

Second, there are several procedural measures in the land use decision making process that routinely cause confusion that I suggest this rewrite should address.  Among these is what constitutes findings in staff reports that are ultimately the basis for the decision of the Planning & Zoning Commission.  City staff have tried several approaches over the years, but I believe all of them have left the city needlessly open to litigation and uncertainty about the commission’s decision.  At present, the staff write both a “reasoned decision” summary for adoption by the Commission and they also write an analysis of the relevant elements in the granting of a discretionary permit.  In evaluating the elements, the staff also provides analysis that often differs from the Commission’s discussion and also is not encapsulated in the reasoned statement.  This presents considerable confusion as to what the actual findings of the Commission are.  I suggest that the city use this process to address these structural decision making concerns.  Most cities of Boise’s size have a staff report for discretionary permits that consists of two parts:  an analysis section and a draft motion with proposed findings.  When the Commission debates approval of the permit, they then are debating and adopting the motion and its findings, and not the analysis.  This is a much cleaner legal process and one that I also believe would help the Commission do its job better.  There is also considerable confusion about what happens when the Commission denies a project and it then goes to city council.  The city council routinely speak of rejecting the Commission’s decision and errors they find in that decision.  This is not the standard of review.  Rather, the city council needs to be better instructed that they are hearing the application anew (de novo, as lawyers would say) and not in a posture of determining whether there was fault in the Commission’s decision (an arbitrary and capricious standard, as the lawyers would say).  This also needs to be clarified in this process.

Third, Boise’s current structure of planning decision making bodies encourages project applicants to play the decision makers against each other.  Routinely in my time on P&Z we were told by a project applicant that a certain decision would be made in design review or was a question for historic preservation.  Boise has no unified land use permitting structure and this harms overall project decision making.  Now is the time to evaluate whether this decision making process makes sense for the next generation.  I suggest that it doesn’t.  Instead, I would suggest that there be some way that the various commissions relate to each other and make a unified decision.  That could mean that all decisions by the Historic Preservation Commission and the Design Review Committee are tentative until approval by the Planning & Zoning Commission, or there is some other oversight board that consists of both staff and commissioners.  In any case, it should be clear to all that project applicants utilize the bifurcated nature of the decision making process to prevent meaningful review by the city and something should be done to address it.  Cleaning up this process doesn’t have to necessarily create more busy work for project applicants.  If done right, it should actually benefit project applicants and the city by providing a more integrated decision making apparatus.

Fourth, because of the outdated nature of the code, the city has increasingly utilized administrative review processes for more and more permits.  This should be stopped because it leads to decision making that has at least the appearance that it could be abused.  The notice processes are also often dubious.  The code needs to be revised to eliminate these administrative processes. If the city intends to give the permits all the time, then the use should simply be permitted.  On the other hand, if the city wants more discretion, it should be given the usual process of the P&Z hearing.  A third approach would be to utilize a zoning administrator, which would be a staff member that could hold individual adjudications that could be appealed to the P&Z Commission.  Also, the zoning administrator could issue binding interpretations of the zoning code where there is ambiguity that would clarify how the staff will define the difference between permitted uses and discretionary uses.

Fifth, the city has made it difficult for community members to track projects.  As part of this process, the city should make it easy for the community to engage with projects in their neighborhood.  With today’s planning software, access to applications is easy, if the city wants it to be.  However, Boise has made it purposefully difficult for individuals to meaningfully track development in their community.  That should stop.  Share the data easily as so many other cities do.

Sixth, the city has revised its code to permit issuance of use variances.  Idaho statute only permits the granting of area variances.  This is ultra vires and the city needs to change its variance criteria to ensure compliance with state statute.

Seventh, the proposed use districts do not address a major issue that arises in the older neighborhoods.  In the older neighborhoods, many homes have rear garages or storage sheds.  Prior to the current zoning code, many of these rear structures were permitted at the lot line; however, current code provisions require a 5-foot setback.  On small lots in places like the North End and the East End, this is a significant difference.  It was also a consistent source of variance applications while I was on the Commission.  Today, the city has addressed this issue through the administrative variance process and by permitting the use variance.  As noted above, however, both of these are highly problematic processes.  Instead, I suggest working with the communities to discuss how rear yard structures can be retained at or near the lot line in a more meaningful way that is also in line with urban trends.

Eighth, I would encourage this zoning re-write to more forcefully embrace residential development in those areas where retail strip malls are currently.  Research increasingly shows that redeveloping retail strip malls has a remarkable capacity to address housing needs, and much more so that retrofitting single-family districts.  For instance, one report by the Boston Metropolitan Area Council found that, "[i]f the top 10 percent of [retail] sites in each [Boston area] municipality were retrofitted to new mixed uses – an average of fewer than four sites per community – it could create 125,000 housing units," which is enough to close the housing shortage of what Boston needs to produce by 2030 (according to the report) to stabilize the market.  The excellent report is here: https://storymaps.arcgis.com/stories/cb9bec551f9d48599f267f4ff6282906.  As many urban successes stories, such as Copenhagen, have found over the years, linear development provides the most cost-effective methods of providing infrastructure.  For instance, linear development permits bi-directional commuting, which lessens the transportation infrastructure burden.  It also provides for lighter uses in between the development corridors, which can be used for parks and open spaces.  Copenhagen successfully implemented this model, called the Five Finger Plan, which grew the city in five linear strips, which continues to give access to rural amenities in the spaces between the developed fingers.  Boise could accomplish something like this in the areas where development is still forthcoming. 

Ninth, I would encourage the city to think about more sustainability incentives than are already in this vision.  For instance, there is little discussion here about subdivisions placed in the path of wildfire.  Perhaps they could be required to be Firewise communities.  There is little discussion about pathways in the foothills.  Today, many such paths are “managed” by HOAs in a manner that is all too often exclusive.  Such pathway discussions cannot be had on an ad hoc basis but can be required generally.  Further, more should be done to ensure connectivity between subdivisions for automobiles, pedestrians and bikes.  Again, these can be generally applicable requirements, but are almost impossible to impose on an ad hoc basis.  Other issues to address could be mandatory tree canopies to address urban heat island effects, and incentives for xeriscaping or related reduced water landscaping.

Tenth, the retention of the planned unit development (PUD) structure worries me.  Currently, most major developments are PUDs.  While this would limit PUDs to larger projects, I believe that more should be required and mandated by the city to use the PUD process.  I believe that should emphasize sustainability and resilience for those larger projects that have the ability to utilize scale to more efficiently assist with climate-related efficiencies.  The current proposal makes sustainability measures one option of many; realistically, most developers will choose the amenities options.  Instead, the PUD should require one of the the sustainability options (2)(a)-(b), and then an additional amenity option (2)(c)-(f).

Eleventh, there needs to be more discussion of how the city will prioritize the coming changes related to the energy revolutions now occurring.  This includes addressing where to place an electric vehicle infrastructure to ensure that this transformation has adequate space within and throughout the city.  Also, bonuses could be given on height to permit and encourage solar arrays.

Twelfth, the city should consider a “super-benefit” for a zero net energy development.  Large-scale developers throughout the West have already made it evident that zero net energy suburban development is possible.  Boise should encourage this kind of development through perhaps a “super-PUD” provision.  I would especially encourage such relevance in existing urban infill sites, such as strip malls, that are challenging.  It could also be relevant to greenfield development, too.  While such permits may seem aspirational now, it moves the conversation about community expectations for impact on the environment that are relevant to the twenty-first century.

Thirteenth, I suggest open-sourcing housing developments that the city would permit without any discretionary permit.  This has been done in other communities, and is based upon the work of Christopher Alexander, which acknowledges that each city has its own “pattern” of development.  By encouraging the development of specific unit types, the city has a future in the kinds of units that are built.  For instance, this could address the missing-middle housing issue by providing open-sourced housing development plans for smaller square-footage homes than are typically built in new construction.  The city then plays a role in creating a developer community that can build that particular unit and thus drives the cost lower by creating scale even for infill projects.

Fourteenth, the city should consider conditions on any multi-unit building placed in an existing single-family district that would permit the new structures to only be used for primary residential uses.  This would foreclose the teardown of single-family homes to be replaced with duplexes or triplexes that are then used for short-term rentals or other uses.  The purpose of increasing density in single-family districts is to provide housing, and a condition to that effect simply ensures the continued residential, rather than commercial, use of the property to address today’s housing shortage.

February 17, 2022 | Permalink | Comments (0)

Wednesday, February 16, 2022

Forget duplexes and redevelop the strip malls: Proposals from Boston

As readers of this blog know, I am dubious that trying to upzone single-family districts will have much luck in actually producing much housing any time soon.  And by "any time soon" I mean, like, in the next decade or two.  I much prefer the idea of retrofitting strip malls that provides just as much potential to address equity concerns, is economically viable for developers, and could be much more easily serviced by infrastructure than random duplexes or triplexes.  A new report from the Boston Metropolitan Area Council adds some staggering statistics to support this approach.  

According to the report, "If the top 10 percent of sites in each [Boston area] municipality were retrofitted to new mixed uses – an average of fewer than four sites per community – it could create 125,000 housing units," which is enough to close the housing shortage of what Boston needs to produce by 2030 (according to the report) to stabilize the market.

The excellent report is here:  https://storymaps.arcgis.com/stories/cb9bec551f9d48599f267f4ff6282906

I really hope this idea takes off and we stop putting all our effort into duplexes.  Retrofitting retail is where it's at for so many reasons this report lays out so well.

February 16, 2022 | Permalink | Comments (0)

Friday, February 11, 2022

New edition of ABA Legal Guide to Affordable Housing Development just published!

This just in from Tim Iglesias:

The third edition of the ABA Legal Guide to Affordable Housing Development has been published: https://www.americanbar.org/products/inv/book/420065732/

This book is a comprehensive legal guide to the development of affordable housing for practitioners and housing advocates. It covers all aspects of the development process, including zoning and building codes, financing, monitoring and enforcement of regulations, preservation of affordable housing, and relocation requirements. It also includes brief chapters on the history of affordable housing and the future of affordable housing.

 

Book cover

February 11, 2022 | Permalink | Comments (0)

Tuesday, February 1, 2022

Is single-family district reform missing the mark on missing middle housing?

There are a lot of news stories out there reporting on the first implementations of single-family zoning retrofits but this one got me in particular.  Olympia, Washington essentially rezoned all single-family districts not just for duplexes, but fourplexes.  The result was--well--nothing happened.  Essentially, the city permitted the exact same number of missing middle units--just 24 in a modestly-sized city--as they had in years before the zoning change.  

This, and other stories (especially this Terner Center report) emerging about the effects of single-family zoning reform, make me dubious that this change will yield significant new housing.  The economics and logistics for the real estate developer just don't seem to be there to me (I'd love for someone to prove me wrong on that).

My personal penchant would be to prioritize redevelopment of retail corridors, which is getting some attention, but not enough.  Retail is undervalued (read: cheap), built into the fabric of communities (read: strip malls), the retail use can be preserved while providing housing on top, and running both transportation and infrastructure is cheaper along established arterials than distributing it through SFDs.  The only big proponent of corridors for housing right now seems to be Peter Calthorpe.  I wish others would pay more attention to him.

The story on Olympia is here:  https://www.theolympian.com/news/local/article257068052.html

February 1, 2022 | Permalink | Comments (0)

Wednesday, January 26, 2022

Land Use, Human Health, and Equity Project, Post 35: Using Supportive Housing to Address Homelessness

 Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 35 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Authors: Michael Ohora and Jaclyn McBain Cohen [*]

Using Supportive Housing to Address Homelessness

Supportive housing is a form of permanent affordable housing that provides supportive services, such as “mental health, physical health, language, and cultural needs, education, employment, addiction and recovery, tenant rights and others" to individuals who are homeless, vulnerable to becoming homeless, or disabled. Supportive housing programs take the “housing first” approach, which involves addressing homelessness by placing individuals in a permanent residence before addressing other issues, such as drug addiction, physical and mental health issues, unemployment, and insufficient development of life skills. By prioritizing housing, individuals are provided a secure environment to work on their vulnerabilities rather than doing so while on the street or in a shelter. Permanent supportive housing programs achieve an occupancy retention rate as high as 98%. In contrast to the “housing first” approach, the “services first” approach involves attempting to meet the needs of homeless individuals while they are unprotected by permanent shelter. States, such as Utah, that have shifted from a “services first” approach to a “housing first” approach have seen substantial decreases in their homeless populations as individuals are given housing to provide stability from which they can begin to work on sobriety, mental health problems, job seeking, etc.

There are two main models of supportive housing: the scatter-site model and the single-site model. The scatter-site model involves an organization purchasing housing units across a variety of buildings and properties, which can include apartments, condominiums, or houses. This model allows supportive housing units to be integrated within the general community, and it allows for flexibility in the creation of supportive housing units since any number of units in one building can be purchased to serve as supportive housing. In a clustered scatter-site model, units can be purchased to form a cluster of supportive housing units within a larger property. The clustered scatter-site housing scheme forms an “economy of scale” by reducing the costs incurred by service providers to cover travel, staffing, and maintenance fees. In contrast to the scatter-site model, the single-site model involves a not-for-profit developer purchasing an entire building and using all of the units to provide supportive housing. In this model, on-site services are provided and tailored to the needs of the building’s occupants.  

Local governments can aid in the provision of supportive housing in a variety of ways. For example, Los Angeles initiated the Proposition HHH Supportive Housing Loan Program for the purpose of providing loans to developers who build supportive housing developments. This proposition was passed by voters in 2016, thereby authorizing a $1.2B bond to offer loans. The goal of the project is to build 8,000 supportive housing units. Developers work with the City to identify providers of the particular supportive services needed by the types of vulnerable tenants who will occupy the new units. The City’s requirements specify that the supported residents be “extremely low income” (up to 30% of the area median) or “very low income” (up to 50% of the median) and to be homeless or chronically homeless.

 

As another example, New York City sponsors the 15/15 Initiative through the Office of Supportive and Affordable Housing and Services. The 15/15 Initiative involves developing 15,000 new supportive housing units by 2030. A task force delivered specific recommendations regarding data & evaluation, referrals, service models, and streamlining development. Recommendations include: using a vulnerability index to target housing to certain populations; minimizing time spent waiting in shelters; implementing a holistic approach to family services; and improving community engagement for new projects.

Services provided in the 15/15 program vary based on the occupants’ needs. For example, CAMBA is a provider of housing and services that include medical treatment for chronic illness, case management, nutritional services (such as food distribution), parenting support, family economic services, and legal services. The comprehensive nature of services that go beyond medical services help individuals in supportive housing gain and maintain both stability within their lives and the ability to be productive members of their communities.

Funding for the 15/15 program comes from the City’s Department of Housing Preservation & Development. The Supportive Housing Loan Program requires that 60% of the units be set aside for homeless or disabled individuals and the remaining 40% be rented to tenants with income falling below 60% of the area’s median income. The loans are for 30 years and a maximum of $125,000 per unit. At the state level, the Empire State Supportive Housing Initiative provides funding for supportive housing. Here, applicants request funding with a maximum of $25,000 per individual, which can be used to provide rental subsidies, supportive services, building security, transportation, and education. The Supportive Housing Loan Program and the Empire State Supportive Housing Initiative are just two of the many funding opportunities available through public and private sources that providers can take advantage of for the development and operation of their supportive housing programs.

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.

[*] Michael Ohora, this blog’s primary author, is a first-year student at the Elisabeth Haub School of Law and a Land Use Law Center volunteer.

Jaclyn McBain Cohen is a third-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

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:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?

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

January 26, 2022 | Permalink | Comments (0)

Thursday, January 20, 2022

Land Use, Human Health, and Equity Project, Post 35: Using Supportive Housing to Address Homelessness

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 35 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Authors: Michael Ohora and Jaclyn McBain Cohen [*]

Using Supportive Housing to Address Homelessness

Supportive housing is a form of permanent affordable housing that provides supportive services, such as “mental health, physical health, language, and cultural needs, education, employment, addiction and recovery, tenant rights and others" to individuals who are homeless, vulnerable to becoming homeless, or disabled. Supportive housing programs take the “housing first” approach, which involves addressing homelessness by placing individuals in a permanent residence before addressing other issues, such as drug addiction, physical and mental health issues, unemployment, and insufficient development of life skills. By prioritizing housing, individuals are provided a secure environment to work on their vulnerabilities rather than doing so while on the street or in a shelter. Permanent supportive housing programs achieve an occupancy retention rate as high as 98%. In contrast to the “housing first” approach, the “services first” approach involves attempting to meet the needs of homeless individuals while they are unprotected by permanent shelter. States, such as Utah, that have shifted from a “services first” approach to a “housing first” approach have seen substantial decreases in their homeless populations as individuals are given housing to provide stability from which they can begin to work on sobriety, mental health problems, job seeking, etc.

There are two main models of supportive housing: the scatter-site model and the single-site model. The scatter-site model involves an organization purchasing housing units across a variety of buildings and properties, which can include apartments, condominiums, or houses. This model allows supportive housing units to be integrated within the general community, and it allows for flexibility in the creation of supportive housing units since any number of units in one building can be purchased to serve as supportive housing. In a clustered scatter-site model, units can be purchased to form a cluster of supportive housing units within a larger property. The clustered scatter-site housing scheme forms an “economy of scale” by reducing the costs incurred by service providers to cover travel, staffing, and maintenance fees. In contrast to the scatter-site model, the single-site model involves a not-for-profit developer purchasing an entire building and using all of the units to provide supportive housing. In this model, on-site services are provided and tailored to the needs of the building’s occupants.  

Local governments can aid in the provision of supportive housing in a variety of ways. For example, Los Angeles initiated the Proposition HHH Supportive Housing Loan Program for the purpose of providing loans to developers who build supportive housing developments. This proposition was passed by voters in 2016, thereby authorizing a $1.2B bond to offer loans. The goal of the project is to build 8,000 supportive housing units. Developers work with the City to identify providers of the particular supportive services needed by the types of vulnerable tenants who will occupy the new units. The City’s requirements specify that the supported residents be “extremely low income” (up to 30% of the area median) or “very low income” (up to 50% of the median) and to be homeless or chronically homeless.

 

As another example, New York City sponsors the 15/15 Initiative through the Office of Supportive and Affordable Housing and Services. The 15/15 Initiative involves developing 15,000 new supportive housing units by 2030. A task force delivered specific recommendations regarding data & evaluation, referrals, service models, and streamlining development. Recommendations include: using a vulnerability index to target housing to certain populations; minimizing time spent waiting in shelters; implementing a holistic approach to family services; and improving community engagement for new projects.

Services provided in the 15/15 program vary based on the occupants’ needs. For example, CAMBA is a provider of housing and services that include medical treatment for chronic illness, case management, nutritional services (such as food distribution), parenting support, family economic services, and legal services. The comprehensive nature of services that go beyond medical services help individuals in supportive housing gain and maintain both stability within their lives and the ability to be productive members of their communities.

Funding for the 15/15 program comes from the City’s Department of Housing Preservation & Development. The Supportive Housing Loan Program requires that 60% of the units be set aside for homeless or disabled individuals and the remaining 40% be rented to tenants with income falling below 60% of the area’s median income. The loans are for 30 years and a maximum of $125,000 per unit. At the state level, the Empire State Supportive Housing Initiative provides funding for supportive housing. Here, applicants request funding with a maximum of $25,000 per individual, which can be used to provide rental subsidies, supportive services, building security, transportation, and education. The Supportive Housing Loan Program and the Empire State Supportive Housing Initiative are just two of the many funding opportunities available through public and private sources that providers can take advantage of for the development and operation of their supportive housing programs.

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.

[*] Michael Ohora, this blog’s primary author, is a first-year student at the Elisabeth Haub School of Law and a Land Use Law Center volunteer.

Jaclyn McBain Cohen is a third-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.

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:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy
  33. Gentrification: Remedies and Consequences
  34. What is Climate Gentrification and Why is it Different?

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

January 20, 2022 | Permalink | Comments (0)

Tuesday, January 18, 2022

Free ABA Webinar: Wed Jan 19: A Practitioner’s Guide to Writing A Journal Article

Tomorrow, Wednesday January 19 at 12:30 Central, I am moderating an ABA panel for practitioners about writing journal articles with two wonderful panelists.  The event is free.  I hope you will join us, or perhaps recommend the event to a friend considering an article.  Here is the link to register, and here is the blurb:

As a practicing lawyer, you are constantly building on your knowledge and expertise in ways that would be of great interest to other lawyers. You would love to write essays and articles coming out of your experience, but what’s the best way to get started? Two experienced practitioners who have published in ABA publications will discuss how, why, what, and – yes – when to write. Brian Connolly, a partner at a Denver law firm, and Lesley Albritton, a legal aid lawyer, will discuss writing with Stephen R. Miller, Senior Editor of the ABA Journal of Affordable Housing & Community Development Law.

LINK TO BIOS: https://www.americanbar.org/content/dam/aba/events/affordable_housing/speaker-bios121421.pdf

January 18, 2022 | Permalink | Comments (0)

Thursday, January 13, 2022

Land Use, Human Health, and Equity Project, Post 33: Gentrification: Remedies and Consequences

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 33 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Gabriella Mickel [*]

Gentrification: Remedies and Consequences

Gentrification is defined as “the process whereby the character of a poor urban area is changed by wealthier people moving in, improving housing, and attracting new businesses, typically displacing current inhabitants in the process.” The inequities caused by gentrification in many communities are manifest. For example, the disinvestment in lower-income neighborhoods caused by redlining, racial covenants, and zoning provisions preventing property improvement resulted in dilapidated buildings, lowered real estate prices fueling development of manufacturing and industrial uses, and lowered the cost of investment in polluting infrastructure, such as highways and public works facilities. The legacy of these effects is the exposure of the residents of such neighborhoods to toxins and pollution not found in moderate- or higher-income residential neighborhoods. In fact, Black Americans are 75% more likely to live in communities where they are exposed to soil, air, and water pollution and experience a higher risk of cancer, asthma, and other life-threatening illnesses.

This is clearly an equity issue that many municipalities are interested in rectifying, but they must be careful to assess and avoid unintended consequences. One solution, for example, has been to build green infrastructure, such as parks, in these neighborhoods. It may seem as though the neighborhood would benefit from this supposed step away from the historic inequity; however, once the green infrastructure is built, gentrification and displacement can occur. Those trees and parks can cause property values to rise, gentrifiers to move in, and low-income residents to be displaced. Displaced residents are more likely to experience negative mental health effects, food deserts, less walkable streets, less access to transportation, and more exposure to pollutants.

The same cycle happens with other “solutions” to historic inequities. Reducing crime leads to higher property values. Giving school vouchers to kids in underfunded schools can encourage moderate-income parents to become gentrifiers and move into low-income neighborhoods. Increasing transit options and transit-oriented development can drive up rents and property values. Even addressing food deserts and swamps by attracting grocers, encouraging farmers’ markets, and incentivizing community gardens can result not only in food mirages, but also in gentrification.

The question thus becomes: how do we stop this cycle of inequity? Part of the answer could be leveraging the resources of gentrifiers and preventing displacement of low-income residents through land-use solutions. To prevent displacement, municipalities are building more affordable housing, preserving current affordable housing stock, and keeping residents in and returning them to their communities.

The Neighborhood Jobs Trust in Boston, Massachusetts is funded by fees paid by commercial developers with projects greater than 100,000 square feet. Boston’s zoning law requires these developers to obtain a zoning variance. To get the variance, the developers must pay a linkage fee, based on square footage, to the Neighborhood Jobs Trust. The trust supports job training for low and moderate-income residents. By creating this trust, Boston is using its land use authority to mitigate a con of gentrification in addition to displacement – the loss of low-skill jobs.

Right-to-purchase ordinances offer cities, tenants, or both with advanced notice and the right to purchase a multifamily rental property “when the owner decides to sell the property, exit the affordable housing program, or convert the rents to market rate.” These ordinances not only mitigate displacement, but they also create low-income home ownership opportunities for residents in gentrifying neighborhoods. The possibility for home ownership is especially important given that building equity is an equity issue. Homeownership is an established route to building generational wealth, yet Black Americans have a homeownership rate of 46.4% compared to 75.8% for white families. The homeownership and racial wealth gap are the legacy of slavery, segregation, redlining, and other anti-Black policies.

Washington, D.C. runs the oldest right-to-purchase programs in the U.S. via the Tenant Opportunity to Purchase Act (TOPA) and District Opportunity to Purchase Act (DOPA). TOPA gives tenants the opportunity to purchase a building when the owner decides to sell and DOPA gives the D.C. the right to purchase if the tenants do not. Tenant ownership is typically structured through the creation of a limited equity cooperative, where residents collectively own their building with resale restrictions that preserve the long-term affordability of the units. The D.C. Department of Housing and Community Development (DHCD) encourages tenants to exercise their right to purchase to stabilize neighborhoods and prevent displacement. The DHCD provides tenants with financial assistance (seed money, earnest money deposits, acquisition funding, etc.), technical assistance, and “specialized organizational and development services, to include structuring the tenant association, preparing legal documents, and helping with loan applications.”

Some municipalities are going a step further by trying not only to prevent displacement, but also to undo displacement. Local governments are using right-to-return policies to allow displaced people to move back into their communities after being pushed out by gentrification. Portland, Oregon created a right to return policy that allows tenants, mainly minorities, forced out by gentrification to move back to communities with the help of an affordable rent program. The program gives priority to displaced people via a point system that considers three generations of potential displacement.

In February 2021, Providence, Rhode Island released its Anti-Displacement and Comprehensive Housing Strategy. The strategy is a solid case study of how a municipality can address displacement and housing insecurity in the context of climate change, COVID-19, housing insecurity, and racial equity. These pandemics not only adversely affect public health, but they also do so interconnectedly. Therefore, addressing them effectively often means addressing them together. To create affordable housing, the Providence strategy recommends modifying zoning to allow more infill development (via pre-approved architectural designs that developers and property owners can use to build affordable housing on small lots), improve ADU regulations, allow for greater use of row houses, enable cluster development on large residential lots, provide density bonuses for land development projects, and creating a process to approve adaptive reuse administratively. To preserve affordable housing, the Providence strategy recommends creating a mandatory rental housing registry to facilitate code compliance inspections and creating a certificate of habitability that requires inspections every three years. To keep people in their communities, the Providence strategy recommends creating a Right of First Refusal Program to give the city an option to purchase existing income-controlled units.

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.

[*] Gabriella Mickel is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.

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:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap
  24. Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
  25. Racial Impact Analyses
  26. A New Era of Equity-Based Comprehensive Planning…Finally
  27. Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
  28. Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
  29. Addressing the Four Pandemics – A Case Study
  30. Health Impact Assessments: A New Tool for Analyzing Land Use Plans, Zone Changes, and Development Projects
  31. Putting the “e” in TOD
  32. The Four Pandemics Explained and Addressed by Land Use Law and Policy

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

January 13, 2022 | Permalink | Comments (0)

Wednesday, December 15, 2021

Crafting a state-specific land use law casebook: The example of Idaho

What does a land use law casebook look like if it is written from a state-specific point of view? 

I've thought about this a lot, given that I am a co-author on a national land use law casebook with some amazing co-authors. 

It has also been on my mind for awhile because I went to law school in California, urban planning school in California, practiced land use law in California, but have lived in Idaho for the past 10 years.  While California has a significant literature on planning, Idaho has, well, basically one treatise written by several (very good) lawyers at a local firm.  Does Idaho need anything more? 

Recently, I thought yes.  And so I produced some 1,300 pages of cases and excerpts of law review articles along the lines of what you'd find if you bought one of the national treatises.  The difference is...everything in this casebook is about Idaho.  

Consider that Boise is arguably the fastest-growing city in America, by some standards the least affordable city in America, and that the West faces unprecedented climate risks.  All of this makes the importance of state-based land use law especially important in these places.  Places like Boise, places like Idaho.  I felt this was needed, and so I wrote it.  Maybe it will be of use, and maybe it will have been a lark.  No matter, it is done (at least as far as first editions go).

Below is the table of contents on my inaugural version of the Idaho land use law casebook.  I'd love to see what others have produced in other places, and perhaps begin a conversation about what land use law looks like when we prioritize state-specific law.

The full first edition version of the Idaho land use law casebook is here (for free):  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3986648

 

 

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December 15, 2021 | Permalink | Comments (1)

Tuesday, November 30, 2021

CFP: Idaho Law Review symposium on growth and housing affordability

The Idaho Law Review will be holding its annual symposium on land use and growth issues this year.  As some of you may have read in the news, Boise was recently named the least affordable city in America due in large part because of the difference between housing prices, which have grown among the fastest in the country, and local wages, which are among the lowest in the country.  I hope you will consider joining us at this year's symposium and offering some ideas for how to address rapid growth and affordability.  Feel free to reach out to me, if you'd like ([email protected]).  Here is the call for papers from the students:

 

The Idaho Law Review invites articles and essays for its 2022 symposium, Boomtown: Growth and the Clash of Identities in the American West. The topics could include (but are not limited to) land use issues in Idaho, the effects of population growth, homelessness, issues with affordable housing, and landlord/tenant law with COVID. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Idaho Law Review welcomes essays (typically 2,000–6,000 words) or articles (typically 7,000–10,000 words).  

 
The symposium will be primarily virtual and held online April 22, 2022.  A small event will also be held in Boise on April 21, 2022.  The symposium volume of the Idaho Law Review will be published in Spring, 2022. Interested authors are encouraged to send an abstract describing their proposals to the symposium’s Chief Symposium Editor, Charlotte Cunnington, at [email protected] by December 15, 2021. Submissions of draft articles and essays are due by February 15, 2022 (with some flexibility). 

November 30, 2021 | Permalink | Comments (0)

Monday, September 13, 2021

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

 

 

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September 13, 2021 | Permalink | Comments (0)

Monday, August 30, 2021

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

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

 

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

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

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

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

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

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

For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

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

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

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
  23. Zoning to Fill the Missing Middle Housing Gap

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

August 30, 2021 | Permalink | Comments (0)

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

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

Zoning to Fill the Missing Middle Housing Gap

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

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

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

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

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

For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

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

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

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction
  22. NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity

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

August 30, 2021 | Permalink | Comments (0)

UCLA Housing Voice podcast is a "must listen"

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

August 30, 2021 | Permalink | Comments (0)

Monday, August 16, 2021

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

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

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

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

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

More on Norfolk here.

 

August 16, 2021 | Permalink | Comments (0)

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

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

 

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

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

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

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

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

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

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

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

For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

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

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

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health
  21. ADU Introduction

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

August 16, 2021 | Permalink | Comments (0)

Friday, August 13, 2021

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

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

ADU Introduction

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

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

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

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

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

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

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

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

For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

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

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

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health
  20. Housing, a Crucial Determinant of Health

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

August 13, 2021 | Permalink | Comments (0)

Thursday, August 12, 2021

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

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

Housing, a Crucial Determinant of Health

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

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

QUALITY:

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

STABILITY:

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

AFFORDABILITY:

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

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

For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.

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

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

The previous blogs in the series are listed here:

  1. Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
  2. Planning for Public Health: A New Beginning for Land Use Law
  3. The Role of Density in Combatting Climate Change and COVID-19
  4. Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
  5. State & Local COVID-related Emergency Powers: Individual Rights
  6. COVID-Related Land Use Regulations and Judicial Deference
  7. Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
  8. Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
  9. Urban Heat Islands and Equity
  10. Urban Heat Island and Equity: What Can Local Governments Do?
  11. The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
  12. The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
  13. Hazard Mitigation Planning: A Case Study
  14. Complete Streets: Protecting Public Health
  15. Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
  16. Segregation by Law and the Racial Inequity Pandemic
  17. Combating Food Swamps to Improve Equity and Public Health
  18. The Pandemic Plan for Healthy Buildings
  19. Remediating Distressed Properties to Improve Public Health

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

August 12, 2021 | Permalink | Comments (0)