Within the past five years, Urban Lawyer Law Journal has published several housing articles, with topics ranging from affordable housing to disaster responses in land use planning. Many of the articles explain why local governments are uniquely poised to address housing needs within their communities and provide various case studies demonstrating this authority.
Lee Einsweiler’s Enhancing Land Use Equity Through Improved Zoning, in Volume 52 Number 2, explores historical and ongoing efforts to improve equity of residential planning through zoning. Early residential districts often permitted mixed residential development types within the same city block, rather than limiting development to just single-family homes. Only later on, especially during the housing boom after World War II, did zoning of specific districts for single-family use become commonplace across the country. Einsweiler uses case examples in Oregon, California, and Minnesota to examine recent efforts to improve equity. The author also provides a case study example from Charlottesville, Virginia, to demonstrate the benefits of using a comprehensive plan to focus on housing affordability and land use equity. Using a comprehensive plan can influence future zoning to ensure these housing goals of the community are addressed.
Fair Share Planning for Locally Undesirable Land Uses by Sean Connolly, Elizabeth (Nikki) Miller & Julie Zhu, in Volume 52 Number 3, discusses land uses that are unwanted by most constituents. Planners refer to these kinds of land uses as Locally Undesirable Land Uses (LULUs). When sited, these land uses consistently generate local community opposition. Local communities almost always perceive LULUs as bringing negative externalities, but planners generally understand them to be necessary for the proper functioning of the local municipality or the broader region. Though somewhat tautological, this description reflects the political reality of LULUs: unwanted yet necessary. The city government controls the siting of city-owned or -operated LULUs. This article focuses on the distribution of homeless shelters, detention facilities, and waste transfer stations throughout New York City. Specifically, local government has historically sited LULUs unevenly along geographical and social axes, placing a disproportionate number of LULUs in low-income communities of color in Crown Heights and northern Manhattan. The authors suggest that utilizing Padavan Law, a Comprehensive Citywide Plan, and reviewing the LULU approval process may provide a solution to LULU disproportionality.
Dwight H. Merriam’s Affordable Housing: Three Roadblocks to Regulatory Reform article, in Volume 51 Number 3, addresses the need for affordable housing to meet the essential need for shelter, and to advance diversity, equity, and inclusion across the board. Affirmative action in promoting affordability requires orchestrating a myriad of programs, initiatives, and techniques. It may also be worth considering what holds communities back, what unnecessary barriers stand in their way, and what keeps communities from realizing the full potential of their efforts. In this article, the author addresses three roadblocks that deserve the closest attention and concerted action and must be knocked down to get the housing so desperately needed: the myth of Home Rule, limitations of the Fair Housing Act, and the pervasive use of private covenants and restrictions. A careful review of state constitutional and statutory law is critical to implement the necessary amendments and bring order to the current chaos of the Home Rule. Eliminating unacceptable exemptions from fair housing under federal, state, and local law will advance the cause of diversity, inclusion, and social, economic, and racial equity. Removing private covenants and other restrictions that create and perpetuate social silos is important. People have the right to manage their private property in concert with others through private restrictions. At the same time, communities have the legal and moral responsibility to do what they can to promote the development of more affordable housing. It is, and will continue to be, a difficult balancing problem and to some extent a zero-sum game.
The article In Defense of the Landlord: A New Understanding of the Property Owner by Sharon Yamit Yamen, Hilary Marie Silvia, and Linda Christiansen, in Volume 50 Number 3, shifts the affordable housing narrative from the lens of zoning and land use to the impacts that affording housing may have on landlords. The terminology currently defining the landlord-tenant relationship is both generalized and antiquated, failing to acknowledge the diversity of property owners impacted by government-imposed price ceilings on rent. This article first describes the etymology of the word “landlord,” reminiscing that the landlord was once, quite literally, the lord of one’s land. Then discusses the evolution and challenges to price controls in the business of housing, now referring to the residential landlord using a more accurate term “property owner.” Finally, it explores the avalanche of economic hardship impacting property owners in the wake of COVID-19 rent control provisions. There is a wide array of participants ranging from individuals to multi-billion-dollar corporations in the business of housing, which is similar to the business of coffee shops, retail stores, or even accounting firms. While laws and regulations, including those governing employment, discrimination, and marketing, apply equally to both the corner coffee shop and the corporate coffee behemoth, the burdens and costs associated with compliance often disproportionately impact smaller businesses. The same holds true for rent control in the business of housing, wherein individual property owners may be inordinately burdened with legal mandates requiring that they subsidize housing costs.
Climate change also has major impacts on housing. Cost-Effective Local Initiatives to Promote Resilient Disaster Recovery by John Marshall, in Volume 52 Number 1, addresses the fundamental change that major disasters bring to communities. We think immediately of the dramatic physical changes left in their wake: homes pushed off their foundations, roads and power lines severed, schools and businesses gored by winds or floodwaters. This article explores the use of various forms of temporary housing used by community members following a disaster, and various prohibitions on this housing resulting from local zoning codes. Solutions the author proposes include emulating what other communities have done, disaster planning for the future that includes zoning to permit temporary housing, and strong legal protections for housing and community development.
In Climate Change in Unincorporated California: The Consequences of Limited Regulation for Land Use, Lodging, and Livelihoods in the Wildland Urban Interface, Lauren Ashley Week, in Volume 52 Number 3, discusses the consequences of wildfire on housing and the surrounding environment. Headlines ranking the largest wildfire to recently ravage the Western United States have, unfortunately, become a familiar feature of the annual news cycle. Throughout the summer and early fall of each year, wildfire reporting consumes national media attention as flames simultaneously consume more land, more structures, and more lives. This article investigates the environmental consequences of climate change-induced wildfires in the wildlife urban interface (WUI). The overlap between unincorporated areas of California and the WUI creates extensive gaps in law and regulation that affect the natural environment and housing. Part I introduces the concept of the WUI and defines its three subcategories: (a) interface, (b) intermix, and (c) influence zone. It explains how the WUI’s ongoing development increasingly threatens land, lodging, and lives. Part II provides an overview of several existing legal frameworks meant to regulate climate change, wildfires, and the WUI at the federal, state, and local levels. Given this paper’s focus on the LNU Lighting Complex, its examination of local law includes the land use regulations of Solano County, one of the five counties affected by the Complex. Part II also uncovers the gaps undermining these regimes. Finally, Part III analyzes potential solutions and their drawbacks to help overcome the consequences of limited regulation in unincorporated California during the era of climate change while preserving access to affordable housing.
