Add to Climate Change Section, before last paragraph starting with “As noted,” and directly after …”to make the document public,” P. 451:
Ultimately, the EPA found that endangerment from GHG emissions was occurring and set motor vehicle emissions standards for GHG emissions. On June 26, 2012, the U.S. Court of Appeals for the D.C. Circuit upheld the EPA’s approach in Coalition for Responsible Reg., Inc. v. E.P.A., 684 F.3d 102, 2012 U.S. App. LEXIS 12980, finding that the EPA’s endangerment finding was fully supported by the record, and finding that the motor vehicle standards were within the EPA’s authority.
Ecker Bros. v. Calumet County
NOTES AND QUESTIONS
Add to Note 2, in same paragraph as first sentence, but before the last sentence starting with “for a chart showing…”P. 454:
Later, in Zimmerman v. Hudson, 264 P.3d 989 (Kan. 2011), the property owners brought their takings claim to the Kansas Supreme Court, challenging the lower court’s decision to uphold the Board of County Commissioner’s adoption of an amendment to the zoning ordinance prohibiting Commercial Wind Energy Systems (“CWECS”) except with a conditional use permit. The primary issue was whether the property owners had a vested interest or right in the construction of CWECS – not just a mere expectation of future benefit. The court found that the property owners had no vested interest because even before the amendment, the property owners would have had to get a conditional use permit to construct CWECS on the property. Since the issuance of a conditional use permit is ultimately discretionary, the property owners never had a vested right, and therefore did not have a viable takings claim. SeeHearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012) on pg. 429 for a similar finding.
Add to Note 2, as a second paragraph, Notes and Questions, P. 454: The Seventh Circuit Court of Appeals rejected a takings challenge to a wind farm ordinance in Muscarello v. Winnebago County Board, 702 F.3d 909 (7th Cir. 2012). The court held that that the plaintiff failed to prove a taking where a zoning ordinance made it easier for residents to build wind farms. There was no transfer of plaintiff’s property or limits on its use; therefore, the possibility that a wind farm might be built was not enough to establish sufficient harm.
Add as new section, after “Alternative Energy as Inherently Beneficial Use” section and before “Reduction of Emissions From Large Buildings,” P. 456: Solar Access: In recognizing the importance of solar energy, communities throughout the United States have passed what are called “solar access” ordinances. An example of such an ordinance is a “solar setback requirement,” with the proposed purpose of providing “a reasonable amount of solar access to all parcels in the city so that investments in solar equipment may be secure, and further use of solar energy will be encouraged.” Matthews Municipal Ordinances § 33:63
The Massachusetts Practice Series provides an overview of solar access:
Zoning ordinances or by-laws may encourage the use of solar energy systems and protect solar access by the regulation of the orientation of streets, lots and buildings, maximum building height limits, minimum building setback requirements, limitations on the type, height and placement of vegetation and other provisions. Zoning ordinances or by-laws may also establish buffer zones and additional districts that protect solar access which overlap existing zoning districts. Zoning may further regulate the planting and trimming of vegetation on public property to protect the solar access of private and public solar energy systems and buildings. Solar energy systems may be exempted from setback, building height, and roof and lot coverage restrictions.
Zoning ordinances or by-laws may also provide for special permits to protect access to direct sunlight for solar energy systems. They may provide that such solar access permits would create an easement to sunlight over neighboring property. Zoning ordinances may also specify what constitutes an impermissible interference with the right to direct sunlight granted by a solar access permit and how to regulate growing vegetation that may interfere with such right. Zoning ordinances may further provide standards for the issuance of solar access permits balancing the need of solar energy systems for direct sunlight with the right of neighboring property owners to the reasonable use of their property within other zoning restrictions.
Zoning ordinances may provide a process for issuance of solar access permits including, but not limited to, notification of affected neighboring property owners, opportunity for a hearing, appeal process and recordation of such permits on burdened and benefitted property deeds. A solar map may be established identifying all local properties burdened or benefitted by solar access permits. Zoning ordinances may require the examination of such solar maps by the appropriate official prior to the issuance of a building permit.
solar map
18A Mass. Prac., Municipal Law and Practice § 17.90 (5th ed.)
Add a new note on p. 456, immediately above “Sources”: Preemption Issues andClimate Change.
See American Electric Power Co., Inc., et al. v. Connecticut et al. 564 U.S. ____ (2011). The United States Supreme Court reaffirmed the EPA’s authority under the Clean Air Act to enforce any regulation regarding greenhouse gas emissions. The Court also held that States cannot use Federal common law nuisance claims to impose limits on greenhouse gas emissions as the EPA’s authority under the Clean Air Act displaces the Federal common law claim. The issue of whether State common law claims are also barred has yet to be determined. (http://www.supremecourt.gov/opinions/10pdf/10-174.pdf).
A 2009 amendment to Washington’s Building Energy Code promoted energy efficiency in new buildings. In enacting the new law, the state legislature stated that, “…energy efficiency is the cheapest, quickest, and cleanest way to meet rising energy needs, confront climate change and boost our economy.” In 2011, the Building Association of Washington filed suit against the Washington State Building Code Council claiming a portion of the 2009 amendment violated 42 U.S.C. § 6297 by imposing energy efficiency standards higher than those set by the federal government and should be preempted by Energy Policy and Conservation Act (EPCA). Building Industry Ass’n of Washington v. Washington State Building Code Council, 2011 U.S. Dist. LEXIS 12316. The Energy Policy and Conservation Act (EPCA) preemption exemption test contain seven requirements which must be met in order for a code to be exempt from preemption. 42 U.S.C. § 6297(f)(3). The court found the code to be compliant with the requirements of the EPCA and denied the movant’s motion for summary judgment.
But c.f.,The Air Conditioning, Heating & Refrigeration Institute v. City of Albuquerque unreported decision, Civ. No. 08-633 MV/RLP (9/30/2010) striking down Albuquerque’s new energy efficiency requirements, finding the prescriptive regulations were preempted by the EPCA. (http://lawoftheland.files.wordpress.com/2010/10/ahri.pdf)
EQUITY ISSUES IN LAND USE: “EXCLUSIONARY ZONING” AND FAIR HOUSING EXCLUSIONARY ZONING AND AFFORDABLE HOUSING: STATE LAW
The Problem
Southern Burlington County NAACP v. Township Of Mount Laurel (1)
NOTES AND QUESTIONS
A NOTE ON ZONING, REGULATION AND MARKETS
Redressing Exclusionary Zoning: Different Approaches
Southern Burlington County NAACP v. Township Of Mount Laurel (II)
NOTES AND QUESTIONS
Insert a new paragraph at the end of the last paragraph of Notes and Questions, 7, “Achieving Fair Share,” on p. 476: The Ethel Lawrence Homes, the affordable housing project that was eventually constructed in Mount Laurel Township as part of a settlement agreement with the township in 1985, has been the subject of a comprehensive investigation by a team of sociologists on the impact on the community itself and the residents of the project, and the results have published in a series of articles and papers. Casciano and Massey, Neighborhood disorder and individual economic self-sufficiency: New evidence from a quasi-experimental study, Social Sci. Res. (2012), doi:10.1016/j.ssresearch.2012.02.005 (in press) (finding that that residents in the Ethel Lawrence Homes are significantly less likely to experience disorder and negative life events and that this improvement in circumstances indirectly improves the likelihood of being employed, their earnings, and the share of income from work; finding no relationship between residence in the housing project and the likelihood of using welfare); Albright, Derickson, and Massey, Do Affordable Housing Projects Harm Suburban Communities? Crime, Property Values, and Property Taxes in Mt. Laurel, New Jersey (June 15, 2011), Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865231 (finding that affordable housing development was not associated with increased crime, decreased property values, and increased taxes); Casciano and Massey, Neighborhood Disorder and Anxiety Symptoms: New Evidence from a Quasi-Experimental Study (June 15, 2011), Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865238 (finding that living in an affordable housing project in a middle-class suburb reduces a poor person’s exposure to disorder and violence compared to what they would have experienced in the absence of access to such housing, and that this lesser exposure to disorder and violence yields improvements in anxiety that can be attributed to residents’ reduced stress burden).
A NOTE ON POLICY AND PLANNING ISSUES
A NOTE ON EXCLUSIONARY ZONING DECISIONS IN OTHER STATES
Affordable Housing Legislation
Decision Making Structures
A NOTE ON STATE AND LOCAL APPROACHES TO PLANNING FOR AFFORDABLE HOUSING NEEDS
“Top Down”: The New Jersey Fair Housing Act
A NOTE ON RECENT MOUNT LAUREL DEVELOPMENTS
Insert a new paragraph at the end of p. 486:
To follow up on actions that were pending at the time this text was written in 2010, the New Jersey Legislature in January 2011 passed a COAH reform bill, S-1 which Governor Chris Christie ubsequently conditionally vetoed later that month. Hester, Displeased with Democratic amendments, Christie conditionally vetoes bill to change affordable housing standards, New Jersey Newsroom, January 24, 2011 available at: http://www.newjerseynewsroom.com/state/displeased-with-democratic-amendments-christie-conditionally-vetoes-bill-to-change-affordable-housing-standards. In August 2011, Governor Christie abolished COAH through a reorganization plan and transferred its functions to the New Jersey Department of Community Affairs. However, a fair housing advocacy group, the Fair Share Housing Center, challenged Christie’s action. An intermediate appeals court found that the Excecutive Reorganization Act, N.J. Stat. Ann. 52:14C–1 to –11, did not authorize the governor to take such an action because COAH is a legislatively created, representative, independent authority that is “in but not of” the Executive Branch, and the governor exceeded his authority under the Act. In re Plan for the Abolition of the Council on Affordable Housing, 38 A.3d 620 (N.J. App. Div. 2011). The New Jersey Supreme Court has denied a stay of this ruling, so it remains in effect. Order, Supreme Court of New Jersey, M-1383 September Term 2011, 070426 (filed June 8, 2012), Further, at the time of this writing (June 2012), the New Jersey Supreme Court has not held oral arguments on the appeal of the decision striking down the Third Rule growth share rules, even though all briefs were filed in June 2011.
“Bottom Up”: The California Housing Element Requirement
Housing Appeals Boards
Insert at the end of the fourth paragraph (“A referendum questions was certified . . . “ on p. 492:
For a discussion of possible reforms to Chapter 40B, see Note, Affordable Housing in Massachusetts: How to Preserve the Promise of “40B” with Lessons from Rhode Island, 46 New Eng. L. Rev. 125 (2011).
Insert at [iii] “Housing Appeals Boards” at the end of the first part paragraph on p. 493.
Interpreting the Low and Moderate Income Housing Act as well as the Comprehensive Planning and Land Use Regulation Act, R.I. Gen. L. § 45–53–3(4)(ii), which requires that towns adopt a housing element as part of their comprehensive plans, the Rhode Island Supreme Court has held that these statutes did not authorize a home rule town to charge a fee-in-lieu of undertaking the construction of affordable housing, and could not require developers to pay the fee in the absence of legislative authority. North End Realty, LLC v. Mattos, 25 A.3d 527 (R.I. 2011).
Approaches in New Hampshire, New York, Rhode Island, and North Carolina
Techniques for Producing Affordable Housing
Inclusionary Zoning
Insert at the end of “California” on p. 499: See alsoWollmer v. City of Berkeley, 122 Cal. Rptr. 718 (Cal. App. 2011) (upholding city's two approvals for a mixed-use affordable housing or senior affordable housing project as not violating the state's density bonus law or the California Environmental Quality Act).
Insert at the end of the last paragraph of the section, “Inclusionary Zoning,” on p. 502: Callies, King, Nicholas, & Barclay, Workforce and Affordable Housing: Local Government Inclusionary Housing Programs and the Courts, Planning & Envtl. L., Oct. 2011, at 3 (discussion of programs in Florida and California).
A NOTE ON INCLUSIONARY ZONING AND REGULATORY TAKINGS
Funding Mechanisms
Other Tools
Insert at the end of [iii] Other Tools, p. 505:
To increase the supply of needed housing, there is a lot to be said for reforming development review procedures, not just for affordable housing. California’s Housing Accountability Act, Gov’t Code 65589.5 limits the ability of local governments to reject or make “ housing development projects” infeasible if they comply with objective standards. Rejection of such a project requires written findings, based on substantial evidence on the record, that the project would have an adverse effect on public health or safely that cannot be feasibly and reasonably mitigated. An appeals court has interpreted that “housing development projects” are not limited to projects involving affordable housing, but include market-rate projects as well. Honchariw v. County of Stanislaus, 132 Cal.Rptr.3d 874 (Cal. App. 2011).
DISCRIMINATORY ZONING UNDER FEDERAL LAW
The Problem
Federal “Standing” Rules
The Federal Court Focus on Racial Discrimination
The Constitution
Village Of Arlington Heights v. Metropolitan Housing
Development Corp.
NOTES AND QUESTIONS
Insert at Notes and Questions at 4.Standing on p. 515: But standing for other groups is more difficult to come by. See National Association for the Advancement of Colored People v. City of Kyle, Texas, 626 F.3d 233 (5th Cir. 2010) (holding that a civil rights organization did not have associational standing and a home builders association did not have organizational standing under the Fair Housing Act to challenge amendments to a city’s zoning and subdivision ordinances governing new single-family residences that increased the minimum lot and home sizes for such residences and required full exterior masonry).
Fair Housing Legislation
Huntington Branch, NAACP v. Town Of Huntington
NOTES AND QUESTIONS
Insert at Notes and Questions, after first paragraph of 3, “Later Cases,” on p. 527: Evidence that redevelopment of an area where a significant portion of the population consisted of African-American and Hispanic residents who would not be able to afford new market-rate housing that would replace the units that were demolished established a prima facie case of disportionate impact in a plausible way through statistics and the action survived a claim for summary judgment under the FHA . Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d. 375 (3d Cir. 2011)
Even the design of a housing project can play a role in determining potential effects on racial segregation. An interesting New York trial court decision interpreting the Fair Housing Act concluded that expert testimony by a plaintiff’s witness was sufficient to establish that the proposed residential development of former industrial area in the Williamsburg community in Brooklyn, where there is a high concentration of Hasidic Jews (who traditionally have large families), would have a discriminatory effect on black residents, as required to establish a prima facie case under the Act. The expert, an associate professor of planning at Columbia University, testified that plans to construct affordable housing of only six to seven stories, and with very large apartments (three and four bedrooms) for very large families, despite the far greater local demand for smaller apartments, would favor whites and Yiddish speakers over black residents, who had a greater need for small apartments. Consequently, the court granted a preliminary injunction to stop the development. Broadway Triangle Comty. Coal. v. Bloomberg, 941 N.Y.S.2d 831 (Sup. Ct. 2011).
Insert at Notes and Questions, 9, “Westchester County, N.Y.”, on p. 527: For an excellent analysis of the settlement in the Westchester County case that argues that Westchester and other counties and municipalities throughout the country should enact legislation incentivizing mixed-income housing developments, see Note. Integrating the Suburbs: Harnessing the Benefits of Mixed Income Housing in Westchester County and Other Low-Poverty Areas. 44 Colum. J.L. & Soc. Probs. 1 (2010).
DISCRIMINATION AGAINST GROUP HOMES FOR THE HANDICAPPED
Larkin v. State Of Michigan Department Of Social Services
NOTES AND QUESTIONS
Insert at Notes and Questions, at the end of 9, “Sources,” on p. 536: Mandelker, Housing Quotas for People with Disabilities: Legislating Exclusion, 43 Urb. Law. 915 (2011). In this article, Professor Mandelker observes that “[t]he validity of quotas for group homes has seldom been litigated as a violation of equal protection, probably because the Fair Housing Act (FHA) provides a better opportunity to challenge these restrictions” Id., at 934. He then examines the various cases on quotas, including Larkin, discussed in the text. The central part of the article is his evaluation of alternatives for distributing housing opportunities for persons with disabilities. He identifies several, including a fair share approach implemented locally, tying the siting of housing for persons with disabilities to the local comprehensive plan through its housing element, and relying on regional planning agencies or state licensing agencies to make the allocation of housing to local governments, establishing minimum rather than maximum limits on housing availability. He concludes that litigation has clearly established that distance and other quotas are invalid under the FHA. “[Courts] do not accept justifications for quotas based on the need to prevent clustering. Quotas on housing for persons with disabilities are unacceptable. States and local governments should consider an alternate method for distributing housing opportunities.” Id., at 947.
