4C — October 21 - November 17, 2022 — Owners, Developers & Managers — M id A tlantic Real Estate Journal
O wners , D evelopers & M anagers
By Neil Andrew Stein, Esquire, Kaplin, Stewart, Meloff, Reiter & Stein Uncle Sam Has Taken A Seat At The Local Land Use Table – Will He Stay For Dinner?
evelopers and munici- palities have histori- cally believed that lo-
other incentives to communi- ties evaluating a development proposal. The state, while a decision-maker as to certain permits, does not typically influence local land use deci - sions. Except in narrow areas such as wetlands, the federal government has traditionally followed suit. Tacitly, at least, the federal government is now aiming to create a “sea change.” The Biden administration believes that one of the issues constraining housing supply is the lack of available and af - fordable land, which is driven by state and local land use
laws limiting housing density. Such exclusionary policies con- strain land use, inflate prices, perpetuate patterns of segre- gation, keep workers in lower productivity regions, and limit economic growth. Reducing regulatory barriers to housing production would increase the supply of affordable housing. The Administration’s posi- tion is that local government bans on duplexes, triplexes, or apartment buildings drive racial and economic segrega- tion, adversely affect housing affordability and ignore the effects of climate change.
With few exceptions (e.g., cell towers and religious insti- tutions), federal government has not exercised authority over local zoning. In contrast, the Biden administration has identified $6 billion in incen - tives for local governments. If such a “carrot” is unsuccessful, there may be a “stick” on the horizon. Some pundits have argued for a federal “zoning czar” to directly influence local zoning decisions. Perhaps more importantly, such an office could exacerbate the political differences associated with zoning reform. There appears
to be some bi-partisan support for the concept but little for implementation. Second, on August 16, 2022, the federal EPA released its Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQ), that provides guidance to federal, state, and local envi- ronmental permitting entities on integrating environmental justice and civil rights into per- mit decisions. One interesting part of the FAQ is: “If there are no mitigation measures the permitting au- thority can take, whether with - in or outside the permitting program, that can address the disparate impacts, and there is no legally sufficient justifica - tion for the disparate impacts, denial of the permit may be the only way to avoid a Title VI violation….” EPA civil rights regulations prohibit entities that receive federal financial assistance from EPA from taking actions that are intentionally discrimi- natory or that have a discrimi- natory effect on the basis of race, color, or national origin. Recently, the City of Chicago denied a permit for a metal recycling facility after EPA noted civil rights concerns, even after the state EPA had issued its permit. The City’s denial was based on the alleged disparate impact of the facility on disadvantaged communi- ties. The City’s action has been appealed. So, the federal government’s unstated intention to involve itself in local land use deci- sions will present both carrots and sticks for developers and municipalities alike. If nothing else is accomplished, perhaps this new federal involvement will necessitate that develop- ers and local government work cooperatively in the land use approval process. Otherwise, Uncle Sam will take a seat at the table and stay there for the foreseeable future. Neil Andrew Stein, Es- quire is a principal of Kap- lin, Stewart, Meloff, Reiter & Stein and a member of the Land Use, Zoning & Devel- opment Department. MAREJ In the article “Uncle Sam Has Taken A Seat At The Local Land Use Table – Will He Stay For Dinner?" By Neil Andrew Stein, Esquire (Mid Atlantic Real Estate Journal Volume 34, Issue 9, Sept. 23 - Oct. 20, 2022, pp 8D) there was an error in the title. The editorial ran with the letter D. The following: “Uncle Sam Has Taken A Seat At The Local Land Use Table – Will He Stay For Dinner? " ran incorrectly. All versions of this article have been corrected.
cal land use decisions should be made locally. The impacts of develop- ment, posi- tive or nega- tive, are felt locally. Local
Neil A. Stein
elected officials best under- stand the needs of their constit- uents. Developers can “pitch” infrastructure improvements, increased tax payments, or
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