GovLove Podcast #709 – Land Use Cases of the Year with the Planning and Law Division of the APA

Aired: January 2, 2026
Host: Dan Bolen
Guests: Reid Asselby, Craig Notay, Scott Hazelton

Episode Overview

In this special annual awards edition, GovLove teams up with the American Planning Association’s Planning and Law Division (PLD) to highlight the most significant federal and state land use decisions of the past year, as summarized in the APA PLD Case Law Digest. Host Dan Bolen, along with expert guests Reid Asselby, Craig Notay, and Scott Hazelton, unpack the legal rulings shaping the future of land use, housing policy, environmental review, rent control, and affordable development across the United States.

Listeners get an insider look at how courts nationwide are responding to major planning trends, state preemption, agency deference, affordable housing crises, and the balancing act between local and state authority.

Opening: Lightning Round & PLD Introduction

[00:14–10:07]

Guest Introductions

• Reid Asselby: Law clerk at Wilkie Farr & Gallagher; PLD Case Digest research assistant and editor (2023–24). Specialized in land use, affordable housing, public space access, and zoning analytics.
  • “...Being on the front lines of the most recent cases and trends in land use law in the US from all 50 states...gives a holistic picture of what's going on.” — Reid [07:40]
• Craig Notay: 27-year NYC real estate litigator at Borah, Goldstein...; late-career MUP student at CUNY Hunter; represents landlords, condo & co-op boards in the city’s complex housing market.
• Scott Hazelton: Kansas-based planner turned Washington University law student; rural and multi-state land use experience; APA PLD Case Digest research assistant.

What is the Planning & Law Division (PLD)?

• Serves attorneys and planners at the intersection of law and land use policy. Most members work in or with government and are not attorneys.
• Scott: “It really serves as kind of the gap that I wanted to bridge with my own career...an opportunity to meet and work with planners that view these issues from the local government side...” [06:42]

Case Awards & Analysis

1. Federal Deference & NEPA: Seven County Infrastructure Coalition v. Eagle County

[10:07–22:48]

Overview

• U.S. Supreme Court decided whether courts must defer to agency environmental findings under the National Environmental Policy Act (NEPA), in review of a new Utah railway project.
  • “The PLD goes to Seven County Infrastructure Coalition vs. Eagle County...holding that courts must give substantial deference to agency determinations regarding the environmental impact of proposed developments under NEPA.” — Dan [10:07]

Discussion Highlights

• Reid explains NEPA and EIS process:
  • Applies to federal projects/actions; agencies must assess environmental impacts via Environmental Impact Statements (EIS).
• Case background: Utah counties promoted an 88-mile railway to enable oil transport, opposed on environmental grounds by Colorado counties and environmental groups; lengthy, in-depth EIS performed.
• DC Circuit vacated project approval, saying the EIS didn’t fully study upstream/downstream impacts.
• Supreme Court, unanimous (8-0, Kavanaugh), reversed:
  • Courts must defer to agency decisions, not expand NEPA analysis beyond the direct scope of the project.
  • Memorable quote:

    “A 1970 legislative acorn—that is NEPA—has grown over the years into a judicial oak that has hindered infrastructure development under the guise of a little more process.” — Justice Kavanaugh [17:02]

Practical Impact

• The holding pulls back on indirect environmental review for projects; unless clearly within the agency’s jurisdiction, future/related activities (like oil drilling/refining offsite) don’t require analysis for NEPA.
  • “It is more likely that court challenges will face more scrutiny and be more difficult—agency determinations will be more difficult to be blocked by a court because of this holding...” — Reid [22:48]

2. Rent Stabilization Beyond NYC: Matter of Hudson Valley Property Owners v. City of Kingston

[22:48–32:05]

Overview

• New York’s highest court upheld Kingston’s authority to declare a housing emergency and enact rent stabilization, using city-run vacancy surveys as the basis.
  • “This case was about a 2019 law that expanded this power to the whole state...” — Dan [22:48]

Discussion Highlights

• Craig on context: Post-2019 law allows any NY municipality with <5% vacancy (via study) to impose rent stabilization.
• COVID population shifts made Kingston eligible; landlords challenged the emergency declaration and methodology (esp. assumption that non-responding landlords = 0% vacancy).
• NY Court of Appeals held perfection not required:

  “The city’s data does not need to be perfect because perfection is never really a legal standard to be met. But also, the methods for obtaining data were good enough to be reliable...” — Craig [27:08]

• Court applied the “arbitrary and capricious” standard—courts defer to reasonable administrative determinations.
  • “The standard means that courts give great deference... and will not disturb the determination unless it looks egregiously wrong...” — Craig [29:51]

Takeaways

• Upholds cities’ authority (with reasonable studies) to implement stabilization, even outside NYC.
• Other cities’ attempts have been less successful—“there have been other towns in New York State...and the courts have consistently found problems.” — Craig [31:10]

3. NJ Builder’s Remedy & Eminent Domain: A HMT Property v. Township of Middletown

[32:05–43:41]

Overview

• A New Jersey developer sought to build affordable housing on land zoned for open space but faced municipal condemnation in favor of commercial use.
  • “...affordable housing developer successfully defended against a municipal condemnation action, an eminent domain action in A HMT Property vs Township of Middleton.” — Dan [33:24]

Discussion Highlights

• Scott: Developer’s rezoning application stalled; township started condemnation and redevelopment planning for a different use.
• Builder’s Remedy: unique NJ doctrine where courts can order municipalities to approve compliant affordable housing proposals if towns fail process/fair housing law (“Mount Laurel” doctrine).
• Court issued an injunction, blocking the township’s condemnation tactics amid a pending, compliant application:
  • “That's the shadow that they're talking about: if someone comes forward with an application, they know that, hey, step one is this, step two is this... developers just want the process clear.” — Scott [38:09]

Key Insight

• Courts won’t allow municipalities to undermine the predictability of the development process, especially concerning affordable housing mandates.

4. State Preemption & Transit-Oriented Housing: Attorney General v. Town of Milton (MA)

[43:41–53:34]

Overview

• Massachusetts Supreme Judicial Court upheld the state's MBTA Communities Act: towns must zone for multifamily “as-of-right” near transit, despite local referenda to the contrary.
  • “...The MBTA Communities act...mandated that any municipality with MBTA facilities should provide at least one district for multifamily housing within a half mile of an MBTA stop...” — Reid [44:18]

Discussion Highlights

• MBTA Communities Act (2021): statewide zoning mandate for transit-adjacent multifamily housing.
• Milton’s voters rejected compliance; Attorney General argued state law preempts local referendum:
  • “There’s the doctrine of preemption. So it was found that state law preempts or overrides any local law or ordinance...” — Reid [47:41]
• Court found law is not merely an opt-in for grant money; towns cannot evade by forgoing funds.
• Procedural Quirk: State’s enforcement delayed b/c of improper public notice for administration guidelines—but substance of preemption and mandate stands.

Wider Trend

• Battles over housing supply and state preemption of local zoning are intensifying (parallel trends in Illinois, California, etc.).
  • “...there's also potential for collaboration as well.” — Reid [65:35, final thoughts]

5. Rent Control & Redevelopment: EP6 Admirals Co v. City of Alameda (CA)

[53:34–64:15]

Overview

• Developer renovates derelict Navy housing; seeks exemption from local rent control, reasoning new certificate of occupancy = “new” development (statutorily exempt).
  • “The law in Alameda says that housing built after 1995 is not subject to rent control...the developer relied on the law exactly as written...” — Craig [54:59]

Discussion Highlights

• Court went beyond literal reading; focused on legislative intent—to prevent “perverse incentives” (landlords letting old buildings decay, then rehab/escape controls).
  • “...problem with the facts in cases like these are when an owner intentionally lets their rent control property built before 1995 fall apart...the court wanted to avoid that set of facts...” — Craig [61:38]
• Narrow impact given unique facts; but raises policy questions: does strict rent control law discourage necessary redevelopment?
• “...the court decided to favor the side of the equation that protects tenants versus developers.” — Craig [60:36]

Audience Q&A & Closing Thoughts

[64:15–70:22]

Final Thoughts—Trends for 2026

• Reid: Growing legal tension between environmental review/process and the urgent need for infrastructure/housing (“abundance agenda”); expect more state-local preemption and housing supply litigation.
• Craig: Rent stabilization/freeze’s actual impact is complex; can raise non-stabilized rents or strain landlords; the debate is far from settled.
• Scott: Local governments should prioritize procedural clarity in development review to avoid the “shadow” of unpredictability that deters investment.

Notable Quotes

• “Turn on the lights and get rid of those shadows in your local process.” — Scott [68:50]
• “I suppose the more we can loosen up the ability to build more, the better. But, you know, it’s a very complex problem.” — Craig [68:46]
• “How we countenance those important environmental regulations with overarching infrastructure and housing goals is going to be an ongoing push and pull.” — Reid [65:35]

Memorable Moment

• GovLove DJ question: “If you could be the GovLove DJ, what song would you pick?”
  • Scott: “Because we’re three days before Christmas—'Santa Claus Is Coming to Town.'” [70:34]

Important Timestamps

• PLD’s role for practitioners: [06:42–08:47]
• NEPA & Supreme Court agency deference: [10:57–22:48]
• NY rent stabilization beyond NYC: [22:48–32:05]
• NJ builder’s remedy & condemnation: [32:05–43:41]
• MA MBTA transit zoning law (state preemption): [43:41–53:34]
• CA rent control & redevelopment (“perverse incentive”): [53:34–64:15]
• Trends for 2026 & final thoughts: [65:35–69:48]
• Audience Q&A, DJ moment, sign-off: [70:22–71:52]

Quick Takeaways for Local Government Professionals

• Deference to Agencies: Supreme Court keeps NEPA reviews focused and grants agencies significant discretion, resisting broad “indirect impact” analysis.
• Rent Stabilization Expansion: Municipal authority within states is strong when processes are properly documented, but standards matter greatly.
• Builder’s Remedy & Predictable Process: Developers have enforceable rights; local governments must conduct transparent, consistent applicant review.
• State Preemption in Housing: State legislatures are increasingly overriding local zoning powers for affordable/transit-oriented development.
• Rent Control & Renovation: Courts may look beyond literal statutes to policy intent—watch incentives and potential legislative fixes.
• Transparency: Streamlined, well-lit procedures build trust for applicants, avoid litigation, and support fair local decisionmaking.

Listen for more at ELGL GovLove Podcast.