← GovLove - A Podcast About Local Government
GovLove - A Podcast About Local Government
#709 Land Use Cases of the Year with the Planning and Law Division of the American Planning Association
01:13:05
Loading summary
Transcript93 lines
- [00:00]
A
Foreign.
- [00:14]
B
To you from Chicago, this is Gov Love, a podcast about local government. Govlove is produced by elgl, the Engaging Local Government Leaders Network with We engage the brightest minds in local government. I'm Dan Bolen, a local government attorney and partner at the Answer Law firm in Chicago. Today is a very special episode because we are partnering with the American Planning Association's Planning and Law Division to honor the most important federal and state court decisions of the year from the APA plds Case Law Digest that's right, it's the plds, the true peak of award season for the listener. You can't see them, but all of our guests today are looking dapper in their finest tuxedos. They are Reid Asselby, Craig Notay and Scott Hazelton. Reed, Craig and Scott welcome to Gov Love.
- [01:10]
A
Thank you, Dan.
- [01:11]
C
Thanks for having us.
- [01:13]
B
Thank you. We're also joined by the Planning and Law Division's live webinar Audience Dear Audience, please share your questions for us in the chat. We'll do our best to address some of them at the end before we wrap up. Today, we're talking about the most important planning law cases of the year, but first we're going to welcome our guest Love with our signature Lightning round. Your lightning round question is would you please tell us about your career path, starting with the day you were born? Read. You're up first.
- [01:48]
A
Go.
- [01:48]
C
Yes, well, I'll start from the present and then go back in time. I'm currently a law clerk in Wilkie Farm Gallagher's litigation practice. Of course, I have to include the necessary disclaimer that my remarks today don't contain any legal advice. I don't establish an attorney client relationship in any form, and all these opinions are attributable to me alone and don't reflect the views, positions, or opinions of my law firm, Wilkie Fire and Gallagher llp, or other attorneys at the firm. That being said, I have been involved with with pld for almost three years now. I was the Curtin fellow from 2023 to 2024, did a webinar on community land trusts, which you can find on the PLD website, was also the Case Law Digest Research Assistant and editor and had the job of sifting through hundreds of land use cases every quarter. Kept me readily up to date on recent trends and development. And in law school I specialized in land use and planning law, including state and local governance, affordable housing, historic preservation, and I did my final research project on increasing public space access in cities. I was also a zoning analyst intern at the National Zoning Atlas and a student attorney at the Health Justice Alliance Law Clinic.
- [03:00]
B
Oh, that's all very impressive, Craig, what do you have to say?
- [03:06]
D
Good afternoon, everyone. Nice to. Nice to be here. I didn't really have any career plans when I was born. It took a little while for that to manifest gel if you could. But when I finished my English degree at the University of Rochester, a liberal arts degree, I knew I had to do a little or I thought I should do a little bit more in terms of education. So I went to Brooklyn Law School
- [03:31]
C
and
- [03:34]
D
stayed in New York City and have been in private practice ever since. So it's been about 27 years of being a real estate litigator at one of New York City's medium sized law firms called Bora, Goldstein, Alt, Schuler, Nans and Goydell. We are 55 or so real estate attorneys, all with specialties in various aspects of real estate. A lot of landlord, tenant a lot because it's the nature of New York City and, and every real, every other kind of real estate dispute you can think of. I'm representing large and small building owners, condo and co op boards in state court and in New York City housing court. And I plan to continue to do that until I'm done.
- [04:27]
B
That sounds like a fine career, a good plan. I also have a liberal arts degree and was maybe destined to go to law school as well. So I know that feeling. Scott, what have you got?
- [04:40]
A
Yeah, so I am. Good afternoon everyone. I'm actually zooming in from where I was born on the family farm in Kansas, went to Kansas State University, and if in the blur you can see kind of purple over my. That'd be my left shoulder. That is my K State Pride showing. Over the last 4ish years, I've worked as a land use planner, went to K State for planning. Um, I primarily worked with rural communities across the country. Did some time out in Oregon, a lot of work in Montana, and then I decided to go to law school. So I am currently a 2L at Washington University in St. Louis. I'm starting to get grades back today, so it's an exciting time. And then I'm serving as the research assistant for the pld. Digest this over my next couple of years as I finish up law school and yeah, happy to be here and talk about some of these cases that I sorted through.
- [05:45]
B
Scott, we're gonna catch up later about our mutual men's basketball coach Bruce Weber from Fighting Illini in Kansas State. He's still calling games on Big Ten Network. Looking forward to catching a few of those over the holidays. But it is the end of our lightning round and everyone has a perfect score. Before we ignore our cases from today, let's talk a little bit about apa, pld, and the Case Law Digest. For those who don't know, the Planning and Law Division of the American Planning association that serves those with a professional or personal interest in the diverse legal issues that affect the planning profession. PLD's membership includes attorneys, planners, students, and others. Most members are not lawyers, and a large percentage of the members work in government. Scott, what does the Planning and Law Division mean to you?
- [06:42]
A
Yeah, so as I've been a practitioner, I, you know, I was part of PLD as a practitioner, you know, as a student. Now it really serves as kind of the gap that I wanted to bridge with my own career. It's an opportunity to meet and work with planners that view these kind of issues from the local government side, but also offers me the ability to connect with attorneys that are working on things that I'm hoping to spend my entire career working on.
- [07:12]
B
It's a great organization to be a part of. I enjoy it as well. In the Planning and Law Division's Case Law Digest presents summaries of recent federal and state court decisions addressing issues the intersection of planning and law, with takeaway lessons to assist planners and land use attorneys in their practice. Reid, you've been working with the Digest for a few years. Why are you a contributor?
- [07:40]
C
Well, I think it's important to keep practitioners, both planners and lawyers, apprised of how courts are thinking about land use issues. And planning and law is sort of a niche field. You don't often see those things combined, typically in law school curricula. So I think it's great to kind of put those two areas of expertise together. And what I really liked about being the research assistant was kind of being on the front lines of the most recent cases and trends in land use law in the US from all 50 states, from all circuits, and kind of getting a holistic picture of what's going on. So I hope that kind of with this knowledge we can use it to advance greater social good and understand some of the existential threats we face and how land use adaptation and development can help out with that.
- [08:36]
B
Existential threats. I love it. Craig, I know that the Case Law Digest helps me in my practice. How does it help you and other planning professionals you work with?
- [08:47]
D
Sure. So something I didn't mention at the outset is that while I've been practicing law for about 27 years in this particular area, I'm almost finished with my what I call late in life master's in Urban Planning at CUNY Hunter College. And so I think that my. I think that what I get out of participating should also translate over to other other people that are in planning as well as other lawyers. You know, laws can be a very local phenomenon that are specific to your geographic location and its particular characteristics. And in large cities like New York, where I practice, we deal with urban issues that are similar but different to other cities like Chicago and la. So, for example, housing the city's population can be as challenging in other cities as it is in New York. But each city handles the challenge a bit differently. So to reflect on the conditions in your city and whether the challenges are being addressed well can be assisted by looking at how other cities do things. So to answer your question, Dan, I think the Digest helps me focus in on what's going on in other places besides the city I practice in and gives me a broader perspective on what's going on out there beyond my immediate location.
- [10:07]
B
Well said. And I think it's time to help our listeners and start handing out some hardware for the cases of the year. Without further ado. First, the federal performance goes to a decision that changes that law. And the PLD goes to seven County Infrastructure Coalition versus Eagle County. A United States Supreme Court decision holding that courts must give substantial deference to agency determinations regarding the environmental impact of proposed developments under the National Environmental Policy act, or nepa. Read what is NEPA and what does it require for infrastructure projects?
- [10:58]
C
Yeah, let's chat. So NEPA was passed, enacted in 1970, and it applies to any proposed activity or action that's proposed on federal lands or passes through federal lands, or is funded either entirely or in part by the federal government or affects air or water quality that's in some way regulated by federal law. So when any one of those conditions are present, the federal agency with the greatest expertise and regulatory authority over that area will manage the NEPA environmental review process for the proposed project. So that's typically what happens. And then the federal agencies must prepare a detailed EIS Environmental Impact Statement. So that assesses all the environmental impacts and alternatives to the federal action that's affecting the environment in some way. So the EIS typically includes a range of alternatives and divides it into several parts to be analyzed, provides the impacts on the federal actions and each component of the environment that it's affecting and many of the environmental consequences, and importantly, a purpose and need statement to explain why this is necessary
- [12:20]
B
Very, very good. So this case was about the Uinta or Uinta Basin Railway. What is that? And why did this group of Utah counties in this case believe that an 88 mile train track was so important for their local jobs and economy?
- [12:40]
C
Yeah, so the railway was. It is a proposed 88 mile freight railroad line running through eastern Utah, which is rich in oil and gas reserves. So the goal is to connect this region with the national rail network to transport crude oil predominantly to the Gulf coast. And this will potentially quadruple production in this area. But there are potential climate impacts risks to the Colorado River. And opponents cited several environmental concerns and arguing that by allowing trains, freight to run with oil through this area, it's going to worsen air pollution, increase carbon emissions and endanger the species that inhabit that area.
- [13:33]
B
And along the Colorado river there was a couple concerns. It was a massive 3,600 page report.
- [13:41]
C
Right.
- [13:42]
B
So this case went all the way up to the Supreme Court. What did they decide?
- [13:46]
C
Yeah, well, feel free to jump in and whenever you need to. This is a really complex holding. You know, I'm going to do my best to distill it. So I guess I'll start with. Do you want me to start with the Supreme Court or kind of the procedural history? How should we go about? You could.
- [14:03]
B
Yes, get us the history and lead us all the way up.
- [14:06]
C
Yeah, let's do that. I think it helps to have a little bit of a chronology here. So the Seven County Infrastructure Coalition, the plaintiffs here were a group of Utah counties and they applied for approval of this railway. And the U.S. surface Transportation Board was the federal agency in charge of considering the application. So they conducted this very, very thorough environmental review, like Dan said, thousands of pages, to adhere to NEPA procedures and conducted studies on all sorts of things like air pollution, protected species. They solicited public comment, they held public meetings in the region. And then after all of this, the Surface Transportation Board published its final EIS in August of 2021 and that assessed potential impact on Utah's local wetlands, land use, recreation. And it indicated, but didn't actually analyze in depth what they called potential effects of increased upstream oil drilling in the Uintah Basin and then conversely increased downstream refining of crude oil in the Gulf coast that was carried by the railroad. Nevertheless, in December 2021, the board approved construction of the railway and kind of weighed that the benefits for the economy and the public interest outweighed any of the environmental impacts that they described in the eis. So once the board approved this, Eagle County, Colorado and Several environmental organizations joined together and petitioned the D.C. circuit for review. So the D.C. circuit Court vacated the Surface Transportation Board's environmental impact statement and the final approval, finding that although the board created this super detailed and long analysis, it was impermissibly limited in the railways environmental impacts under NEPA because the, remember, the upstream oil drilling and the downstream refining were what the D.C. circuit called reasonably foreseeable effects of the railroad's operation and construction. So the D.C. circuit said, look, Surface Transportation Board, you got to go back. This analysis was flawed under NEPA because it didn't adequately analyze the effects of the railway. And then after that, the infrastructure coalition filed for review in the US Supreme Court and the Court granted CERT
- [16:47]
B
means that this. Yeah, the Supreme Court doesn't have to look at these cases. They look at the ones that they want to. And so they decided to take a look at it and what, what, what happened when they took a look.
- [17:02]
C
Thank you. Sometimes I forget that legalese is its own thing. So in a unanimous decision authored by Justice KAVANAUGH, it's actually 8 to 0. Because Justice Gorsuch recused himself from the decision, the Supreme Court reversed the DC Circuit and held at first the DC Circuit failed to grant substantial judicial deference to the Board as required by NEPA and that the D.C. circuit also erroneously interpreted NEPA because it considered environmental impacts that were, quote, separate in time and place from the railway project. So the decision kind of aimed to distinguish the role of courts from the role of agencies in considering how environmental impacts are considered and limits court intervention in NEPA cases. I think a quote from Justice Kavanaugh that I find really poignant here is a 1970 legislative acorn that's NEPA has grown over the years into a judicial oak that has hindered infrastructure development under the guise of a little more process. And I think that really captures the Court's policy concerns in this holding because it says that indirect environmental impacts from future or geographically separate projects that aren't related to the current project at hand should not be considered. NEPA doesn't require the Surface Transportation Board to analyze the upstream drilling or the downstream refining, even though the railway may increase oil production. Indeed, the activities aren't within the Board's scope of authority and control. So the Court says instead of doing that, the board should only assess impacts with a rational relationship to the project itself. So things that are exclusive to this railway and don't consider what's going on upstream, don't consider what's going on downstream, should just be focusing on the railway itself.
- [19:18]
E
So.
- [19:18]
B
So I think some of our listeners might be familiar that we're living in what's called a post Chevron world. There used to be Chev. Chevron was a decision where talked about we are giving deference to administrative agencies, and Chevron was reversed by this very same Supreme Court. I thought we were trending away from agency deference, and this case says we should be deferring to the agency in this case. What gives?
- [19:48]
C
You know, I thought so, too, but it seems like the Supreme Court is affirming that courts should defer to the agency's determination of environmental impacts and that courts really aren't meant to supplant their judgment as far as what environmental impacts should be considered and, you know, kind of leave it to the agency to specifically hone in on this project. And yeah, I mean, the. What you're saying, Dan, is very true that the court has trended away from administrative regulation. But, you know, they reiterated the holding of Vermont Yankee, a 1978 case, and Public Citizen, a 2004 case. And you know, what they said here is that an agency that reviews environmental effects kind of has broad latitude and discretion to make choices that are based on facts, context, and policy, so long as the decision falls within the broad zone of reasonableness. And, you know, courts shouldn't second guess that if the EIS complies with NEPA requirements. So it seems like the courts are really granting more authority to the agencies to make the decisions and have the final say.
- [21:06]
B
Well said. Reminds me of my constitutional law professor who said, when you're on the Supreme Court, you and four of your friends can do whatever you want. And so that is maybe one of the lessons here. Probably more likely the particular statute at issue is what's driving the deference determination in this case. But we do have other awards to hand out. But what does this case mean for planners and projects in the future, do you think?
- [21:38]
C
Well, what's interesting here is that some experts think that NEPA review will be expedited through this case. Others say that it's kind of difficult to tell what the changes will be. I mean, here the court expressed its view that NEPA has been kind of leveraged to thwart or hamstring infrastructure projects. And the US doesn't build anything anymore. We have fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. This is a direct quote from Justice Kavanaugh. And I think you can kind of see this frustration with how difficult and rigorous this environmental review process has been and how it prevents a lot of things from being built. And so I think it's yet to be seen how much the NEPA review process will actually change. But it is more likely that court challenges will face more scrutiny and be more difficult to an agency's determinations will be more difficult to be blocked by a court because of this holding and because agencies are granted greater discretion.
- [22:49]
B
Important case. It's from the Supreme Court, the highest court in the land. Our next award is from the highest court in New York affirming a city's right to declare a housing emergency and implement rent stabilization. And the PLD for the rent is Too Damn High award goes to Matter of Hudson Valley Property Owners versus City of Kingston. Craig we often think of rent stabilization as a New York City kind of thing. But this case was about a 2019 law that expanded this power to the whole state. What did the city of Kingston do in 2022 that triggered this legal battle with local landlords?
- [23:37]
D
Yes, yes, rent stabilization is very much a New York City thing. And rent stabilization has been in effect for many decades and is still going strong in New York City as a reflection of the persistent sort of supply demand mismatch in this big giant city. For a little more context about the city of Kingston versus New York. New York City has 8.3 million people and there are about a million rent regulated apartments. Kingston has a bitty witty 24,000 people population. It's a very charming town city up the Hudson river about an hour and a half from New York City by car. It was the first state capitol even before Albany, New York. So as you mentioned Dan, the act that we're talking about came into effect in 2019. And then of course we know what happened in 2020. People fled big cities including New York for a little more space and that included Kingston. The timing of things was quite fortuitous because less than a year before COVID the state of New York implemented this act, the Housing Stability and Tenant Protection act of 2019 that imposed far reaching regulations on landlord tenant relationships, especially in New York City where the act was to be enforced automatically. In contrast, other cities and towns in the state and not New York City had the option, the option of adopting the Act's regulations. So the relevant part of the act as concerns this case is that the act allows municipalities statewide to to opt into a rent adjustment scheme if the municipality determines that the housing vacancy rate is less than 5%. And right before COVID coincidentally the city of Kingston did a study and determined that the city's housing vacancy rate was above 5%, meaning there was no housing emergency in that city and the city could not opt into rent stabilization. Then in July 22, after people started flowing into the city of Kingston to rent, the city recommissioned the report and determined that the vacancy rate had dropped below 5%, meaning the city could could adopt rent rent stabilization over certain properties. Not all rent stabilization would be imposed on buildings containing six or more rental units built before 1974. So this, of course, made property owners subject to regulation unhappy because their market rates were being reduced that they could collect. And owners commenced this lawsuit challenging the determination that there was a housing emergency in Kingston, New York.
- [26:42]
B
So the property owners, they were arguing that the housing emergency declaration, the study was flawed because if a landlord didn't respond to the survey, the city just presumed they had zero vacancies. Did the what did the Court of Appeals require them to have the city at a perfect data to find a housing emergency?
- [27:05]
C
What, what was.
- [27:06]
B
What did the court say about it?
- [27:08]
D
So at first, starting with the trial court, the trial court held that the City of Kingston properly declared a housing emergency, right. But that the calculations of what the rents should be set to exceeded the city's authority. Excuse me. Then the Appellate Division. And for clarity, in New York, we have this weird nomenclature where the Supreme Court is the lowest court of the state, it's the trial court. Then we have the Appellate Division, which is the level above the trial court, called Supreme Court. And then the Court of Appeals is the level above the Appellate Division, which is not a very distinctive name. Nonetheless, the Appellate Division agreed that the city properly declared an emergency. But the Appellate Division disagreed that the method for calculating what the rent should be was done incorrectly, as the trial court had felt. And the Appellate Division let the calculation method stand. Then in 2025, the top court, the Court of Appeals in the state, upheld the Appellate Division in all respects, and rent stabilization became a settled issue in the City of Kingston. So to your question, Dan. The Court of Appeals said 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. Landlords took issue with the fact that the city decided to assume that there were no vacancies in buildings where landlords failed to respond to the survey questions. And from a common sense perspective, I think that assumption makes sense. Makes some sense because a landlord that wants no regulation and none of them do would be thrilled to answer the survey questions and report that they have lots of vacancies. Lots of vacancies means no housing emergency. The court said the assumption of no vacancy in buildings that did not respond to survey questions was a fair and logical assumption. And very simply, that's as good as we can do. The court said, though the opinion doesn't go into would have been a heavy burden to implement another law to force owners to let the city into their building to actually physically count vacant units. And also leases are not required to be filed in the public record. And even if that requirement was imposed, I would see fraud happening. I would expect that to happen.
- [29:36]
B
You mentioned standard, and I in the Case Law Digest, you mentioned that this law was reviewed under the arbitrary and capricious standard. What does that mean? And why is it such a high hurdle for challengers?
- [29:51]
D
So the buzz term in New York is the arbitrary capricious standard. It's the standard in New York civil practice that applies to assess whether a non judicial body is out of bounds in how it makes a determination. And basically the standard means that courts give great deference. We're sort of back to what Reid had discussed. Courts give great deference to agencies that are in the business of making the determinations they make. And the court will not disturb the determination unless it looks egregiously wrong here. Kingston did a good enough job, according to the court, in determining that there was an emergency and how to handle it.
- [30:29]
B
So what advice do you have for cities doing these studies going forward? And you represent landlords too. What's your advice to these landlords?
- [30:39]
D
Well, because I represent building owners, it would be outside my comfort zone to encourage rent stabilization. But it's a reality and we all have to navigate it. But I suppose the answer is that other cities, if they want rent, if they want rent stabilization, should conduct their studies like Kingston did, because Kingston did it successfully. There have been other towns in New York state that have tried and to conduct their studies, to conduct studies, and the courts have consistently found problems.
- [31:10]
B
Oh, interesting. So has this law really caught on in other places in New York based on your practice?
- [31:18]
D
It has. So there's a lot of cities and towns and upstate that received incoming, an incoming population during COVID I believe so off the top. Newburgh, New York, perhaps Beacon, New York, Poughkeepsie, has, has tried to impose rent stabilization and they've, they've all been challenged and have not succeeded in passing it. I and I, and I haven't heard that there's been a big uptake in trying to reconduct these surveys and that's because Covid's over. And you know, perhaps the city dwellers have lost their romance with upstate living and have returned to the places they came from.
- [32:05]
A
But.
- [32:06]
B
But these laws are still on the books. So important to keep in mind for property owners and municipalities alike. An excellent summary deserving case for case of the year. But we do have other hardware to hand out. One of the more important PLD awards is the Jersey shore fist pump for affordability award. As many listeners know in New Jersey they say we don't pump our gas, we pump our fists. And for this award we take you to Middleton, New Jersey where an affordable housing developer successfully defended against a municipal condemnation action, an eminent domain action in. A M HMT Property vs Township of Middleton Scott. To start us off, what was the developer, a HMT property planning to build on this land? And why did the township move so quickly to designate that same spot as an area in need of redevelopment for a commercial project?
- [33:24]
A
Yeah, so the developer, excuse me, the developer originally came forward with a rezoning application. The property was zoned, I believe, parks in open space if I remember correctly. And they were wanting to move, they were wanting to rezone it to affordable housing. And so that application had been submitted, it was denied or pending. That's where I'm a little unclear anyways, that the application was submitted to the town was not getting approved or moved forward when the township came forward and said we're going to condemn this property. We want to see it as more of a commercial mixed use sort of development. And so they kind of, they had this developer coming in wanting to do something. They had submitted the rezoning application. They were going through that process when the town said hold up, we want this to actually be commercial mixed use development. And so that led to a builder's remedy. So a builder's remedy is basically private parties ability to go to the courts and say hey we submitted this. There are no issues with our application based on, you know, your growth policy, your local ordinances, state statute saying the city, not necessarily that it's arbitrary and capricious, but that the city simply did not review this to the standards that they have adopted and said they're going to. And they failed to review this properly. Basically it's not saying that they made the wrong decision, it's that they didn't follow the process correctly. And so what a builder's remedy allows for is the local municipality, or excuse me, the courts to essentially force the municipality to approve a project. So what? Aahmt, property. Yeah. Yes, the developer. Yeah, that might be easier. There's a lot of letters in there. Basically, when they filed that builder's remedy, the resolution that they were hoping for was essentially an approval from the court saying, okay, it's all, everything that they've submitted is in there. It's the proper documentation. It does not violate any of your local ordinances, any of your long range plans. The rezoning is approved. So the builder's remedy is basically just, hey, our project should have been approved. And it wasn't. And so that's. That. That was the initial step. And so kind of what happened is when the builder's remedy was kind of out there pending, it had been filed. So step one, we had the rezone application that was kind of floating in the wind. Then we had this builder's remedy. Well, the township moved forward with their condemnation study. They moved forward, passing some ordinances, adopting a redevelopment plan, which is a required process through the condemnation, basically studying the area, finding blight, finding a need for redevelopment. So they adopted a resolution approving that plan, selecting someone else as the preferred developer for this proposed commercial mixed use district. And then that led to the injunction because essentially the, the township was following the proper process for condemnation. Right. The, the redevelopment plan, selecting a developer, doing the blighting study. They were doing all of the things they needed to when the developer, our acronym, came forward and filed for an injunction. And so that's what this case was about that was reviewed for the digest was the injunction that the developer was asking for.
- [37:29]
B
Yeah. So injunction is just a court order saying stop it. And the developer asked for an injunction to stop the township's takeover of the property, the taking by eminent domain of the property. In the case law digest, you mentioned that the township's actions kind of cast a shadow over the development process. Can you explain how that threat of a government taking makes it difficult for a developer to move forward with a project?
- [38:09]
C
Yeah.
- [38:09]
A
And the, the developer in this project, just to kind of give a little bit more flavor to their overall request, they were proposing affordable housing based on the Mount Laurel doctrine. So this is a, this is a uniquely New Jersey thing. It's in their constitution to provide for affordable housing. Now, other states have kind of, essentially they've ripped off that, but no one else has gone as far as New Jersey has. And so what the Mount Laurel doctrine is, is basically saying the residents of New Jersey have a state constitutional right to affordable housing. And so throughout the years, New Jersey courts have developed this Mount Laurel doctrine, saying each community has to have a proportionate share of affordable housing. And so that. That's what was originally proposed by the developer. And so that was one of the injunction criteria that they go through about weighing the hardship and the public purpose and granting the injunction. And so they found based on that criteria that it was more important to the town to have the affordable housing. Not necessarily more important, but in this case, it was more important to honor the request of the developer, which is how I'm going to get back to your initial question. Honor his request and giving him that stability in the development process for affordable housing than it was for the town to follow the condemnation process properly. And that's where the shadow is kind of cast. I do a lot of my work for local communities up in Montana throughout law school. I'm still reviewing applications and everything, everything for them. And that's the thing that I hear, yeah, very busy. But that, that's what I hear all the time is that we just went. When a developer walks through the door and puts an application down, at least many of the folks that I work with are like, we don't need a guarantee that it's going to be approved. We need a guarantee that your process is straightforward. And I think that's what the court is saying there is that the developer in this process or in this project followed the process and the town then coming in with a condemnation process on the same parcel cast a shadow and threw a curveball in the overall process. And that's the shadow that they're talking about, is that if someone comes forward with an application, they know that, hey, step one is this. Step two is this. Step three is this. We're not saying we're going to get you clear from A to Z perfectly, but at least the path we're going on is straightforward. And I think that's what the court is saying there. And that's, you know, that's a question that I've seen in my work in Oregon, in Montana and Oklahoma is folks just want the process clear.
- [41:16]
B
Yep. A predictable process that they, they can reliably follow. Get me to. You might not say yes, but just let me know when I'm going to get an answer. One way or the other is what developers are often looking for. And New Jersey is a special place. Listeners, please let us know if you call it Taylor ham or pork roll in the chat. That is a very specific New Jersey thing and as is the Mount Laurel doctrine. But other states have affordable housing laws and requirements. Maybe not constitutional like New Jersey does, but statutory. Having Some rights for builders that are applied and used with more success in some places than others. But what's your final takeaway for planners and local government professionals to know about this case?
- [42:22]
A
Yeah, I think the big takeaway here is that, you know, if you have an application and you have someone that's actively working on a process, the, the town either needs to, you need to review them through that process. That, that was one of the things also that the court brought in kind of at the end was saying that, you know, regardless of this application, the township can apply their condemnation kind of to, to any parcel in town. Right. Like you can go through that proper process of blighting condemnation elsewhere. And so I think it's probably a communication thing. You know, if you have an active application, you should walk them through your entire review process. And if they fail, you know, say this had played out and the developer was unable to get their, you know, project approved and move forward with construction. That ability to condemn it and do this commercial mixed use project does not go away. And so I think that that's the, that would be the biggest takeaway is if you have a pending application from anyone, you should review that and not take actions that are contrary to that application.
- [43:42]
B
Well said, Scott. We do have other hardware to hand out. And for this next award, I let my young paralegal name this award, the Train Goes Choo Choo Award. For this award, we're traveling to Massachusetts for Transit Oriented Development requirements. And the PLD goes to Attorney General versus Town of Milton Reed. To start us off, could you explain what the MBTA Communities act requires towns to do with their zoning?
- [44:18]
C
Yes, let's talk about it. So in 2021, the state of Massachusetts enacted the Massachusetts Bay Transportation Authority MBTA Communities act in response to the state's acute affordable housing crisis. And this mandated that any municipality with MBTA facilities should provide for at least one district for multifamily housing, one zoning district for multifamily housing as of right, within a half mile of an mbta. So essentially they first define what an MBTA community is. It's either one of the 14 cities and towns that initially hosted service by the MBTA, or one of the 51 cities and towns that joined MBTA service later, or other service communities, including those that abut a community that is served by the mbta. So they're really trying to create a broad scope. And in total, there are 177 communities in Massachusetts that are subject to the requirements of the MBTA Communities act. And in particular the Dispute is about Section 3A of the zoning Act. Notably, Boston is exempted from section 3A. Don't know what that means, but the law requires that these communities have to zone for multifamily housing in areas close to these public transit hubs. So being built as of right, of course, means that, you know, you don't need a special permit or zoning variance, be able to build multifamily housing like an apartment building or a townhome near these transit stops. So they're trying to increase density around MBTA stops, allow more multifamily development. And this applies to all communities within half a mile of these subway, commuter rail, or bus stations. Yeah. So municipalities have to designate where the area is that they're going to permit multifamily housing as of right. And where they're going to allow for higher density to provide this public transportation access.
- [46:30]
B
I think there's an important trend. For local governments and planners. I know just last week in Illinois, we just had the governor sign a bill, new transit bill, that gives the Regional Transportation Agency authority to build housing and eliminates parking minimums near transit. It's interesting to see these laws from other states and kind of like the. I mean, other states have experienced it for a long time, the exercise of state preemption and state authority over locals, but to accomplish whatever the state's policy goals are. And I think we're seeing that here as well. And so in this case, the town of Milton drafted a zoning scheme to comply with the act, but then the voters rejected it. Why did the attorney general say that the local vote wasn't enough to stop the law from being enforced?
- [47:41]
C
Well, essentially, there's the doctrine of preemption. So it was found that state law preempts or overrides any local law or ordinance. So because the MBTA Communities act is a state law passed by the Massachusetts legislature, a town, in this case, Milton, that passes a referendum against the state law, even though it's kind of voters exercising their power of direct democracy, really has no legal import when related to the state's affordable housing mandates. The housing crisis in the act was deemed a statewide issue, and the act is meant to address the crisis across the state. So the reasoning here is that compliance has to be enforced to ensure that it's equitable across these 177 communities that are meant to comply.
- [48:31]
B
But the town argued that the penalty in the law was losing state grant money, and if they didn't want the money, they could just ignore the state housing mandate. Why didn't that Argument carry the day.
- [48:43]
C
Well, the Supreme Judicial Court said that is not the case. The mandate is not optional, and the purpose of the law is much broader than these mere fiscal concerns. The court said that again, the housing crisis is an overriding public issue. And Milton's interpretation of the mandate, which kind of treats the zoning requirement as optional, if a town decides they don't want the funds, it kind of manifests a what's supposed to be a mandatory legislative requirement into a fiscal choice. But that wasn't the state legislature's intent in passing the act. So Milton's reading of the law, the court found, would have undermined the intended beneficial purpose of the public interest because otherwise there would be no way to enforce compliance. Every municipality could say that they didn't want the funds and thereby they're not going to rezone.
- [49:38]
B
Interesting part of the case, but this wasn't a total win for the state. The court found that the state had some housing and livable communities guidelines that were related to this law that were actually ineffective. In plain English, what did the state fail to do that will cause a delay in enforcement of this law?
- [50:02]
C
Yes. So the state failed to file a notice of public hearing, notice of proposed adoption or amendment of a regulation, or what they call a small business impact statement. These are all required under the APA or the Administrative Procedure Act. And so because they failed to submit these things and lacked the proper notice and comment period, in addition, they found substantively that the standards weren't sufficiently clear, they were a little too broad. They were thus ineffective. So the state had to go back to the drawing board in order to comply with some of these procedural requirements.
- [50:43]
B
Well said. So what does this case mean for those 170 plus MBTA communities, those transit oriented communities in Massachusetts and other states, Municipalities in other states grappling with similar state mandates.
- [51:02]
C
Yeah, great question. I mean, in the Massachusetts context, these communities with MBTA facilities are required by the state constitution and by the legislature's intent to comply with the transit Oriented Development law that requires multifamily housing, housing near these local transit stations. So, you know, hopefully we'll see more compliance in the years to come. But that hasn't stopped challenges from taking place. The litigation has kind of continued. There was another lawsuit, Duxbury the Commonwealth, where the court declared that the MBTA law is also not an unfunded mandate. An unfunded mandate, in other words, is like a law or regulation that that requires the lower level of government, like the municipality, to provide services or comply with standards that the state gave them without giving them the necessary funds to cover the costs. But the court found that, you know, it's not a financial burden in this sense because it advances the public interest in such a way to meet the legislature's intended requirements. So I think it's again yet to be seen how this is going to play out. I think some towns along the MBTA lines are still going to fight back against having to rezone. But once they do rezone and allow more multifamily housing near these transit stations, we could see a lot more density, potentially effects on affordability. And it really indicates the tensions between state and local governments when implementing these kinds of regimes. Like, Dan, you were just talking about how this is happening in Illinois, you know, and this has also happened in California in a kind of a different context. You know, localities are fighting back against these state mandates to provide affordable housing. They're not liking it and they're trying to find ways to get out of rezoning for whatever reason. And, you know, the states can kind of come back, as shown with the Massachusetts Supreme Judicial Court, by saying that, no, actually this was the legislature's intent. It's for a greater public interest. And because of the acuteness of the affordable housing crisis, this is necessary and the best way to do it is to rezone around these transit hubs.
- [53:34]
B
Interesting case. Important trend. We do have one more award to hand out before, before we do,
- [53:44]
A
Susan
- [53:44]
B
in the chat says it's pork roll over Taylor Ham Scott. And speaking of the chat, it's. We're welcoming questions in the, in the chat, we might have a couple minutes to touch on those. We're also accepting compliments, so if you have any compliments in the chat, we'll accept those as well. But finally, for our final award, a California appel corps recently held that a new certificate of occupancy and $48 million in improvements did not exempt a property from requirements imposed by a local rent control or ordinance. And the PLD award for legislative intent goes to EP6 Admirals Co versus City of Alameda. Craig. A developer bought this property from the Navy to renovate 150 units that had fallen into disrepair. To a local planner, this sounds like exactly the kind of revitalization cities would want. Why did this project end up in a legal battle over rent control?
- [54:59]
D
Yes, this, this case about rent control is very different from the city of Kingston case that I spoke about a few minutes ago because that case was about whether the city could impose rent stabilization across all buildings that qualified. And this city of Alameda case is about whether one particular development was subject to rent control in Alameda, California. And yes, in a way, the court, by imposing rent control, really put a damper on new developments. And I'm going to use the word new in quotes, as you'll come to find out. Why they put a damper on it because by imposing rent control on this project, that at first blush was not new housing really, and should have been exempt from rent control. But these are the kinds of cases that show all the different policy considerations that courts have to struggle with. So for those who don't know, a developer in this case, as, as Daniel mentioned, bought a dilapidated property that had been housing for the Navy and brought it back to life. Sounds like a great thing for everyone because it did not involve total demolition and starting from scratch, which saves the developer money. And more housing is brought to market, which is good for people needing housing. But this project ended up in rent control, probably to the surprise of the developer, for the basic reason that the CORE wanted to find a reason to put it into rent control, and they did. The law in Alameda says that housing built after 1995 is not subject to rent control. And the way the law is written is that housing that is built after 1995 is determined by when the certificate of occupancy issues. Now, that method of determining what constitutes, quote, new housing turned out to be a sticking point for the property in this case because it wasn't new housing from all points of view. The developer's point of view was that this was new housing because it was uninhabitable before the developer revitalized it. So for all intents and purposes, it's new because it was not usable before that. So because it's new, it should not be subject to rent control. The city took the other perspective because they wanted the development subject to rent control and said it's not new housing because the Navy used it as housing. The developer said, nope, you're wrong, city. And we're going to rely on the law exactly as written, because it says new housing is housing that gets a C of O after 1995. And that's what happened here. That's when the CFO issued, for whatever reason, these buildings did not get a CFO when the Navy built them. And the CO issued after 1995 saying this is new housing. However, the court decided to look past what the CFO said and decided it is not new housing and did not exempt information. Exempt it from rent control.
- [57:55]
B
Yeah. So the CCO or certificate of Occupancy, like, I guess it's kind of not surprising they didn't have one. It was owned by the federal government, so they weren't exactly. Not. Not all federal facilities subject themselves to local approvals and local processes like that. And the developer here was arguing that, you know, this wasn't a part of the local housing market in the first place. It was only used for Navy and Coast Guard families. How did the court respond to that idea that residential use only counts if the general public has access to it?
- [58:36]
D
Well, I mean, the courts. And I'll try to answer this particular question, Dan. I think I may have glossed over this part of the opinion, so that's okay. Forgive me if I'm tangentially addressing it. The court's logic was that we can say that this is not a new development because it was built years ago, before 1995 period. And that. And that it was military housing did not really seem to matter. I think that this court would have have made the same decision if these units had not been built by the Navy and had fallen into disrepair and brought back to life. I believe that the opinion, in terms of the general public versus Navy distinction, was that it just didn't matter. You know, it didn't matter that the Navy used it as housing. We're gonna. The court is going to find that. That it shall be subject to rent control.
- [59:34]
A
And
- [59:37]
D
what I notice, at least in New York practice, is that because there's so much jurisprudence and so many statutes at the state and local level that guide what shall be rent controlled, what. What ends up happening for courts is that they can sort of throw it all into the stew and rule as they wish, because there's always going to be some kind of precedent or opinion or guidelines somewhere in the record in the history of the subject. And. And when they want. When the court wants to make policy, they'll find they can find a basis that already exists.
- [60:11]
B
Yeah, that was an interesting comment you made here in. In the Case Law Digest that you mentioned that the court decided to look beyond the plain language of the statute to the kind of the purpose of the law. Can you comment more about the. How the. The court looked at the literal words and then went a little bit further beyond to the purpose of the law.
- [60:36]
A
Yeah.
- [60:36]
D
You know, it's an interesting paradox at play here because the opinion notes that the law is designated to encourage new development by exempting new development from rent control. And it would therefore follow logically that the law should also encourage new revitalization of old property. By also allowing these conversions to be exempt from rent control. These California cities that lack enough housing, you know, on one hand, want tenants to be protected from exorbitant rents, but also don't want to discourage development. But this court decided to favor the side of the equation that protects tenants versus developers.
- [61:21]
B
Yeah. So like, from the court's perspective, why was renovating an old military housing different than building a brand new apartment complex in terms of applying this new law?
- [61:38]
D
So I think what we're talking about is a perverse reward analysis perhaps. Yeah, right. The perverse reward analysis in the opinion is pivotal and it's sort of how the court gets away with what it did. I think the court redeems itself when it comes to this point in the opinion, because as you read the opinion, you cannot help but say to yourself, hey, this developer may have had their head in the right place by going the extra mile to figure out how to rehab old structures that were unlivable. And now the city wants to surprisingly punish the developer by not considering it new housing. But if you think about it, the problem with the facts in cases like these are when an owner intentionally lets their rent control property built before 1995 to fall apart, which is hard on tenants. And city should not incentivize letting properties fall into disrepair. When the owner lets the property get so bad that it cannot be rented anymore, but then brings it back to market as, quote, quote, new housing, and voila, it is no longer subject to rent control is what the owner would, would love. The court wanted to avoid that set of facts that would incentivize owners to let their properties fall into disrepair. And they ruled as they did to avoid that perverse incentive.
- [62:58]
B
Well said. So, as you said, the appellate court ultimately determined that this development was not exempt from the local rent control ordinance because this co the certificate of occupancy was not issued prior to the residential use of the property. How will this holding impact future developments in this city? And what lessons do we take away to other municipalities in California or other states?
- [63:28]
D
I mean, I think that the decision has possibly narrow impact because the set of facts are very particular. It seems to me that this decision could make developers avoid rehabilitating old housing, but should not disincentivize. I don't think the decision will necessarily disincentivize other rehabilitations. From the quick look that I did. I've never been to Alameda, but Alameda had been an industrial and shipbuilding location. So it, it might have some former industrial that could be converted to housing. And this decision would not disincentivize those conversions from industrial to residential because this decision is specific to properties that had been housing before being rehabbed.
- [64:16]
B
I see. Yeah probably interesting narrow set of facts but I think it and maybe there's a legislative fix for this kind of case this particular kind of law even even if the court was able to reach and get what they thought was the the right result what the the General assembly or the legislate legislature meant it's called General assembly in Illinois. Not sure what they call it in California. Maybe we should all visit to find out. But the chat says discouraging development is greater than exorbitant rents. That's at least the policy view reinforced by the court in this case. We are welcoming other comments and questions from the chat for at least a few more minutes. But while we do that that let's go around the horn what are you guys final thoughts about legal trends for our listeners should think about for 2026? Reid, we'll start with you or
- [65:35]
C
I'm thinking with both of the cases that I talked about. The court's opinion in seven county really to me seems to echo this abundance agenda we often hear of, which requires curtailing what many view as obstructive procedural barriers as mandated by federal environmental law. I think how we countenance those important environmental regulations with overarching infrastructure and housing goals is going to be an ongoing push and pull. Another California example, the state recently passed a law to streamline CEQA review the state's environmental law. This is happening on the state and federal level. And then as far as Milton goes, I estimate that preemption will be a significant issue litigated in 2026. You know, as planners know, state and local priorities frequently diverge and you know, significant numbers of people are struggling to afford housing in all 50 states. So as the housing crisis continues, I expect to see further attempts by municipal and state actors to increased housing production, supply density, affordability. And as a consequence of that, we may see state and local tensions increasing. It's a possibility, but there's also a potential for collaboration as well.
- [66:58]
B
Craig, your thoughts. And then we'll go to Scott.
- [67:00]
D
Craig, being a New York City resident, our our upcoming mayor, who has national a national lens on him, talks a lot about how to make housing affordable. And to the extent that New York City's upcoming mayor has national influence on dialogue, I can't really agree or admit that freezing rent stabilization rents in New York City will have a broad positive impact on quality of life for New York renters who pay a lot in rent. I mean, I think it's a really nice talking point to say that you as mayors are going to freeze rents, but it's really not only the mayor's decision and he doesn't necessarily have sole control over it by any means. And also what doesn't get talked about a great deal is that when you freeze rent control rents, it can force market rate rents to go up. Because when a rent controlled. When that, when an owner with rent control units in a rent controlled building is not making ends meet, which is a reality often in places like New York, what the owner will do if they have market rate apartments is increase those rents to balance out the books. So it's just this sort of terribly difficult ongoing dilemma. And you know, I suppose the more we can loosen up the ability to build more, the better. But you know, it's a very complex, complex problem.
- [68:47]
B
Yeah. Well said. Scott. Your final thoughts?
- [68:51]
A
Yeah, mine would be to turn on the lights and get rid of those shadows in your local process would be take a little bit of time. You know, the, the New Jersey law is, you know, something separate. The Mount Laurel Dr. Doctrine is something separate, but something to kind of take away from the case that I talked about and just generally something I'm doing with the communities I work with in 2026 is we're gonna, we're gonna have at least one planning board meeting where we everybody walks through the development process. Where are slow points, where our pain points, what are the habitual things that don't make it into the application? Like what are the things that are always missed? And trying to clarify those things. So that would be kind of my recommendation or my plans for 2026 is to try and remove any shadows from the review process.
- [69:49]
B
Well said. Question from the chat. Have you guys considered doing a blog? We do have the APA Case Law Digest available at planning.org check, check it out. But I do have one final question. This is the most difficult question for our panel and whoever answers first is going to get it. If you could be the gov love dj, what song would you pick as our exit music for this episode? Let's hear it guys. Oh God.
- [70:23]
D
I needed that's. That's off the top. I have. I got nothing. Let's see.
- [70:29]
B
Scott. Otherwise I'm gonna suggest one and the listeners might not like it.
- [70:35]
A
I would say because we're three days before Christmas, Santa Claus has come to town.
- [70:41]
B
I think that's lovely. And I think even if you're listening to this in the new year. Dear listener, please try to be good all year long because that looming threat that Santa will be coming at the end of the year. At least that's what I'm telling my 4 year old. I've been leaning hard into that good list and not naughty list and I'm really concerned about what's going to happen on December 26th. Like we need to how am I going to encourage good behavior? But that's why we behave all year long. Santa Claus Is Coming to Town that ends our episode for today. Thank you for coming out and talking with me. Reed Craig Scott A big thanks to APA PLD for organizing today's webinar. GovLove is produced by a rotating cast of ELGL volunteers. ELTL is the engaging Local Government Leaders Network. You can reach us@eltl.org govlove or on LinkedIn @govlove podcast thanks for listening. This has been gov Love a podcast about local government.
- [71:52]
E
Bye. Santa Claus is coming down Santa Claus is coming to town. Santa Claus is coming down Santa Claus is coming us down Santa Claus is coming. Little tin horns and little toe drums Hooded toot toot and rubber chomp chomps curly hair DY Elephant boats and kitty cars too Ow Santa Claus is coming to town oh yeah Santa Claus is coming to town Santa Claus and time One more time Santa Claus is coming to town Santa Claus coming to town Santa Claus you better watch out.