Thursday, August 27, 2015

Ensuring Small Businesses Thrive During Rail Construction

A report by PolicyLink (a national research and action institute advancing economic and social equity), outlines successful strategies that have been used to help businesses survive and thrive in Seattle, Washington, and St. Paul, Minnesota.

Best practices identified in the report, include:

  • The right type of financial assistance must be available to meet business’s needs.
  • Outreach to businesses should begin well in advance of construction.
  • Business technical assistance is vital.
  • Communication is Key - Projects can have unpredictable timelines.
  • Strong advocacy and organizing by multiple partners (e.g., foundations, non-profits, government, private sector, universities, etc.).
  • In both Seattle and St. Paul, the cities played an important leadership role.

Seattle, Washington
In Seattle, a $50 million Community Development Fund ("CFD") was created.  The CFD was largely funded by the City of Seattle, which contributed $35 million of Community Development Block Grant ("CDBG") funding over seven years and $7.8 million from the City's general fund.  Qualified small businesses could apply for CFD funds for such things as relocation costs; business interruptions payments; and low-interest loans for advances related to operations, equipment, and tenant improvements.

After construction of the affected rail line in 2009,  the retention rate was 85 percent for all businesses, and 90 percent for businesses that had received assistance. 

St. Paul, Minnesota
The City of St. Paul created a $4 million Ready for Rail Business Support Fund through a Joint Powers Agreement between the Met Council and the Housing and Redevelopment Authority of the City of St. Paul.  The loan fund was originally seeded with a small grant by the Central Corridor Funders’ Collaborative, The Met Council, and the City of St. Paul.  The fund is administered by two local nonprofits.

In addition to the loan program, 40 business and community leaders came together to form the Business Resources Collaborative ("BRP") to support small businesses through the construction process.  In partnership with community development organizations, they hired “small business consultants” to do extensive outreach to the businesses along the corridor.  Assistance provided, to about 95 percent of qualifying businesses, included support with accounting, taxes, and marketing. About $1.2 million was spent on direct technical assistance primarily funded by the Central Corridor Funders’ Collaborative, St. Paul Foundation, and Bigelow Foundation.

Due in large part to the work of BRP and its collaborators, of the 1,144 businesses located along the corridor, 84 closed or relocated, and 84 new businesses opened.  Nearly two-thirds of businesses expected their sales would increase, post construction.

For more, read the full report, Business Impact Mitigations for Transit Projects, PolicyLink, November 2013.

Tuesday, August 11, 2015

Land Use and Planning Law Can be Beautiful--Literally

A word cloud is an image composed of words used in a particular text, in which the size of each word indicates its frequency.  The word clouds below show the 50 most frequently used words in selected sections of the City and County of Honolulu's ordinances related to land use.

Waikiki Special District
ROH Sections 21-9.80 through 21-9.80-9.
TOD Special Districts
ROH Sections 21-9.100 through  21-9.100-4

Interim planned development – Transit (IPD-T) Projects
ROH Section 21-9.100-5

Friday, July 10, 2015

9th Circuit Court: Conservation Efforts Outweigh Economic Impacts

The appeal in Building Industry Association v. U.S. Department of Commerce arose under the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”).  It required the 9th Circuit Court of Appeals to review the designation of critical habitat for a threatened species–the southern distinct population segment of green sturgeon (the “Southern DPS of green sturgeon”)–and the regulations implementing that designation.

Green Sturgeon
The context for this litigation is the impact of the designation on local property owners and on the residential construction industry in the Sacramento-San Joaquin Delta and within the Sacramento River basin of Northern California. 

In 2001, the Center for Biological Diversity (“CBD”), along with two other organizations, petitioned National Marine Fisheries Service (“NMFS”) (NMFS is a service under NOAA in the Department of Commerce) to list the green sturgeon as “threatened” or “endangered” under the ESA, and to designate critical habitat.  In 2005, NMFS published a proposed rule listing the Southern DPS as “threatened.”  In 2010, NMFS designated approximately 11,421 square miles of marine habitat, 897 square miles of estuary habitat, and hundreds of additional miles of riverine habitat in Washington, Oregon and California as critical habitat.

Under the ESA, as soon as a species has been listed as either threatened or endangered, agencies are required to consider designating critical habitat. Critical habitat is defined as “the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Before designating any particular area as critical habitat, an agency must “tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact,” of the designation. The agency “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless exclusion will result in the extinction of the species. (Citations omitted.) 

Appellants’ arguments considered by the Court included the following:
  • When designating critical habitat for the Southern DPS of green sturgeon, NMFS failed to balance the conservation benefits of designation against the economic benefits of exclusion from designation. 
  • NMFS’s decision not to exclude certain areas from critical habitat designation is subject to judicial review and NMFS abused its discretion in not excluding those areas.
  • As part of the designation process, NMFS was required to comply with the National Environmental Policy Act (“NEPA”).
The Court held in favor of  NMFS as follows:
  • When considering the economic impact of its designation, NMFS complied with section 4(b)(2) of the ESA and was not required to follow the specific balancing-of-the-benefits methodology argued for by Appellants.
  • Section 4(b)(2) of the ESA establishes a discretionary process by which the agency may exclude areas from designation, but does not set standards for when areas must be excluded from designation.  An agency’s discretionary decision not to exclude an area from designation is not subject to judicial review.
  • Appellants’ NEPA claim fails because NEPA does not apply to critical habitat designations. The court cited, inter alia, Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501–08 (9th Cir. 1995) (explaining that critical habitat designations are not subject to NEPA because: (1) the ESA displaced the procedural requirements of NEPA with respect to critical habitat designation; (2) NEPA does not apply to actions that do not alter the physical environment; and (3) critical habitat designation serves the purposes of NEPA by protecting the environment from harm due to human impacts).
This opinion should give landowners heartburn and Congress a lot to think about regarding potential ESA amendments.  The next step for the Appellants in this case is to request review by the U.S. Supreme Court.

Monday, June 15, 2015

California Supreme Court Upholds San Jose Inclusionary Zoning Policy

In Cal. Bldg. Industry Assn. v. City of San Jose (opinion filed on June 15, 2015), the California Supreme Court upheld San Jose’s inclusionary housing ordinance that requires new residential developments to sell 15 percent of proposed new units at an affordable housing price.

In reaching its decision, the Court opined, “[T]he ordinance does not impose an ‘exaction’ on developers’ property under the takings clauses of the federal and California Constitutions.” In the Court’s opinion, this is not a case of an unconstitutional condition or exaction as asserted by California Building Industry Association (CBIA), but rather an “example of a municipality‘s permissible regulation of the use of land under its broad police power.” This constitutional “police power” analysis is significant in that it is far more difficult to overcome and removes a landowner's' right to just compensation for a government taking of private property.

The City of San Jose enacted an inclusionary housing ordinance that, among other features, requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households.  (See below for a description of the ordinance.)  CBIA’s challenge rested primarily on the unconstitutional conditions doctrine, as applied to development exactions under the takings clauses (or, as they are sometimes denominated, the just compensation clauses) of the United States and California Constitutions.

The CBIA maintained that the ordinance was invalid on its face on the ground that the City, in enacting the ordinance, failed to provide a sufficient evidentiary basis to support its policy. The ordinance failed to demonstrate a reasonable relationship between any adverse public impacts or needs for additional subsidized housing units in the City caused by or reasonably attributed to the development of new residential developments. CBIA argued that the conditions imposed by the City's inclusionary housing ordinance would be valid only if the City produced evidence demonstrating that the requirements were reasonably related to the adverse impact on the City's affordable housing problem that was caused by or attributable to the proposed new developments that are subject to the ordinance’s requirements, and that the materials relied on by the City in enacting the ordinance did not demonstrate such a relationship.

The Court disagreed with CBIA and dismissed the takings based argument.  The Court opined, “[T]he conditions imposed by the San Jose ordinance at issue here do not require a developer to pay a monetary fee [which may have been a takings issue] but rather place a limit on the way a developer may use its property.” The Court further opined, “[T]he conditions are intended not only to mitigate the effect that the covered development projects will have on the City's affordable housing problem but also to serve the distinct, but nonetheless constitutionally legitimate, purposes of (1) increasing the number of affordable housing units in the City in recognition of the insufficient number of existing affordable housing units in relation to the City's current and future needs, and (2) assuring that new affordable housing units that are constructed are distributed throughout the City as part of mixed-income developments in order to obtain the benefits that flow from economically diverse communities and avoid the problems that have historically been associated with isolated low income housing.”

As a result of this opinion, municipalities in California have far greater latitude for imposing inclusionary zoning requirements by ordinance on residential developers, so long as its legislative bodies can show a “reasonable relationship to the public welfare” that has “a reasonable basis in fact . . . to support the legislative determination.”

Summary of San Jose's Inclusionary Zoning Policy

  • Applies to all residential developments within the City that create 20 or more new, additional, or modified dwelling units
  • 15 percent of the proposed on-site for-sale units in the development shall be made available at an affordable housing cost to households earning no more than 120 percent of the area median income for Santa Clara County adjusted for household size
  • The requirement increases to 20 percent of the total units in the residential development if (1) units are provided off-site, or (2) developer opts for in-lieu fees for equivalent units
  • Incentives include (1) density bonus, (2) reduction of parking spaces, (3) reduction in set-backs, and (4) financial subsidies and assistance from City in sale of affordable units
  • A developer may seek a waiver from these requirements by showing "no reasonable relationship between the impact of a proposed residential development [and the ordinance]"
The San Jose inclusionary housing policy is further discussed on the City's web site at

Wednesday, May 20, 2015

Would You Use Public Transit if You Could Save between $20,000 and $80,000 on Your Home?

The cost to build a parking stall can range anywhere from $20,000 to $80,000 or more.

Progressive communities like the City of Seattle, San Francisco Bay Area, and Washington DC are looking beyond parking stalls and pursuing strategies toward promoting transportation, parking, and personal mobility efficiencies.  For example, the City of Seattle does not require parking for new buildings located in downtown or transit-friendly areas, and it continues to investigate policies that allow it to grow and evolve in ways that are functional, economic, and livable.

In a recent report prepared for the Seattle City Council, the City's planning department and state DOT analyzed the City’s vehicle and bicycle parking requirements for residential uses.  Their approach placed a preference on "lower costs to build housing rather than the storage of automobiles."

The report identified the following findings and best practices:

  • Take steps to aid housing affordability by limiting the financial impacts of parking on housing
  • Avoid requiring excess parking
  • Manage on‐street parking to reduce demand
  • Requirements for off‐street parking artificially support driving
  • Requiring more off‐street parking does not directly lead to less on‐street parking demand
  • Increasing access to and knowledge about transportation helps people choose from a variety of convenient and affordable options
  • Housing and transportation costs are the greatest burdens on household budgets
  • Equitable approaches that provide transportation options make a real difference for those who most need those choices
  • Use a combination of strategies
Puget Sound Bike Share

Recommendations included:

  • Tailor parking requirements for new development in areas with frequent transit service
  • Require a “residential transportation options program” that includes requirements for multifamily building owners to provide transit passes and other mobility options for residents of new buildings (actual costs of this type of program will be a small fraction of the cost of building new parking)
  • Adopt a map showing where parking is not required, providing more predictability for permit applicants, neighbors, and planning department staff
  • Remove code barriers to shared parking options, and address garage design to facilitate shared use parking; Consider code revisions to allow bike share and car share in‐lieu of required parking
  • Update bicycle parking code requirements to better address secure, comfortable, long‐term bicycle parking needs
The full report, "City of Seattle Parking Review: Report to Council PLUS Committee," April 13, 2015, is available at

Thursday, May 7, 2015

Is Solar Hawaii’s Energy Panacea?

The group calls itself “KULOLO” an acronym for “keep our utilities locally owned and locally operated.”  The group is lead by Robert Harris of Sunrun, formerly the executive director of the Sierra Club Hawaii. 

The only member of Kulolo identified on its website is The Alliance for Solar Choice (TASC).  According to TASC's website:
The Alliance for Solar Choice (TASC) leads the rooftop solar advocacy across the country.  Founded by the largest rooftop companies in the nation, TASC represents the vast majority of the market.  Its members include: Demeter Power; Silevo; SolarCity; Solar Universe; Sunrun; Verengo; and ZEP Solar.
Kulolo’s plans are short on details.  However, they do mention Kauai Island Utility Cooperative (KIUC) as a favorable model.  KIUC is a not-for-profit generation, transmission, and distribution cooperative owned and controlled by its members.  However, KIUC does not focus solely on solar energy.  KIUC’s energy portfolio includes a growing percentage of hydropower, photovoltaic, bio-fuel, and biomass.

Kulolo’s proposal, if it includes Oahu, should take into account land use policies that evolved over several generations.  Existing community and general plans direct growth away from agricultural lands and open space to the urban core.  Part of Oahu’s future will include communities that build up rather than out.  This means less rooftops for solar.

If Kulolo is successful, let us hope that the outcomes they pursue for the public are as sweet as their moniker

28th Session of the Hawaii State Legislature Ends Today

The 28th session of the Hawaii state legislature ends today, sine die.  

Photo Source
But do not despair, the same cast—some in new roles—will be back next year for the Opening Day of the 2016 Session on January 20, 2016.  Next year is an election year, so it is sure to be even more interesting at our people’s branch of government.

While the legislature officially ends its business for the year, the governor still has some work to do.  According to the Legislative Reference Bureau, the governor has until June 29, 2015 (35th day after adjournment sine die), to give notice of his intent to veto any bills.  The governor has until July 14, 2015 (45th day after adjournment sine die), to veto any bills.  After July 14, 2015, any bills that he has not vetoed become law without his signature.

I will be writing about significant bills related to land use that passed this legislative session in the coming weeks.  Stay tuned.