Today's change of administration in Washington, D.C., could make getting approvals for residential development even tougher in the future, particularly if new restrictions on wetlands and stormwater take hold, according to land-use lawyers speaking at the International Builders' Show in Las Vegas this morning.
In 2009, builders need to recognize that federal regulatory agencies are increasingly asking states and municipalities to enforce any new mandates, cautions Gus Bauman, an attorney with the national law firm Beveridge & Diamond. Bauman and two other land-use experts spoke this morning at a seminar on property rights and land development.
During the seminar, John Delaney, an attorney with the Bethesda, Md.-based firm Linowes & Blocher, gave the audience a quick survey of cases concerning landowners’ rights, changes in methods for resolving disputes, and what outcomes builders and developers might expect in the courts. Governments, he said, cannot treat property owners arbitrarily, and current laws provide remedies and, in some cases, access to damages if a government’s actions prevent the rightful use of land.
However, builders and developers are most likely to get a decision in their favor in state courts. “The federal constitution provides substantial landowners rights,” says Kenneth Bley, a partner with the Los Angeles-based law firm Cox Castle & Nicholson. “Unfortunately, land-use cases are hard to win in federal court,” where owners’ rights often “prove to be illusory.”
Consequently, Bauman told builders to present the evidence of compliance backing their argument as early as possible to local and state officials. “In nine out of 10 cases, the state court is going to look at what was the record” in lower courts or hearings.
Bauman says that developers shouldn't expect to get much of a break from the Obama administration. For one thing, he expects Obama and his team to wield with greater vigor a 2006 Supreme Court ruling “that made it clear” that development near water “needs to be regulated more rigorously,” says Bauman. Obama’s cabinet choices to oversee environmental and climate change issues come from two states—California and New Jersey—that have aggressively enforced land-use and wetlands statutes. (Bauman anticipates that Obama will favor broader wetlands legislation.)
Bauman also notes that the EPA and Department of Energy recently have been sending manuals with guidelines to significantly reduce carbon emissions. “Increasingly, governments are looking to actual buildings to make them greener,” he explains, and local governments in particular are passing ordinances requiring that buildings meet LEED certification standards. “This used to be for only for commercial construction, but now it’s bleeding into residential,” says Bauman. “So you need to keep your eyes on what’s happening at the local levels.”
During the question and answer period, panelists touched on several topics, including the right of state and local governments to impose impact fees and inclusionary zoning requirements. Delaney observes that many towns devise general plans that “zone for jobs but not for the housing that supports those jobs.” But Bauman thinks builders could use that to their advantage. “Never forget that all of these general plans have housing goals,” he said. So builders should hold municipalities accountable for the money they receive for affordable and workforce housing from HUD and other federal sources, so that towns aren’t using that funding “for God knows what else.”
John Caulfield is senior editor at BUILDER magazine.