8D —September 23 - October, 20, 2022 — Fall Preview — M id A tlantic Real Estate Journal
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A ttorney
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?
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evelopers and munici- palities have histori- cally believed that lo-
payments, or other incentives to communities evaluating a development proposal. The state, while a decision-maker as to certain permits, does not typically influence local land use decisions. Except in nar - row 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 is- sues constraining housing supply is the lack of available and affordable land, which is
driven by state and local land use laws limiting housing density. Such exclusionary policies constrain land use, inflate prices, perpetuate patterns of segregation, keep workers in lower productivity regions, and limit economic growth. Reducing regulatory barriers to housing produc- tion would increase the sup- ply of affordable housing. The Administration’s position 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 institutions), federal gov- ernment has not exercised authority over local zoning. In contrast, the Biden ad- ministration has identified $6 billion in incentives 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 lo - cal zoning decisions. Perhaps more importantly, such an
office could exacerbate the po - litical differences associated with zoning reform. There ap- pears 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 pro- vides guidance to federal, state, and local environmen- tal permitting entities on integrating environmental justice and civil rights into permit decisions. One inter- esting part of the FAQ is: “If there are no mitigation measures the permitting authority can take, wheth- er within or outside the permitting program, that can address the disparate impacts, and there is no le- gally sufficient justification for the disparate impacts, denial of the permit may be the only way to avoid a Title VI violation….” EPA civil rights regula - tions prohibit entities that receive federal financial as - sistance from EPA from taking actions that are in- tentionally discriminatory or that have a discriminatory effect on the basis of race, color, or national origin. Re- cently, 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 al- leged disparate impact of the facility on disadvantaged communities. The City’s ac- tion has been appealed. So, the federal govern- ment’s unstated intention to involve itself in local land use decisions will present both carrots and sticks for developers and municipali- ties alike. If nothing else is accomplished, perhaps this new federal involvement will necessitate that developers 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
cal land use decisions should be made local- ly. The im- pacts of de- velopment, positive or negative, are felt lo-
Neil A. Stein
cally. Local elected officials best understand the needs of their constituents. Develop - ers can “pitch” infrastructure improvements, increased tax
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Contact: NEIL A. STEIN • nstein@kaplaw.com 910 Harvest Drive, Blue Bell, PA 19422-0765 • 610-941-2469 • kaplaw.com Other Offices: • Cherry Hill, NJ 856-675-1550 • Philadelphia, PA 215-567-3120 Kaplin Stewart Attorneys at Law
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