MORAL DILEMMAS FOR LOCAL GOVERNMENT IN 2020

2/11/2020 | Articles & Alerts

Developers are often cast in the villain role when they appear in a neighborhood with plans to develop or redevelop land for more intensive commercial or residential uses. Local government often must balance the tax windfall that new development may generate against the quality of life impacts upon existing property owners. The torrent of new multi-family housing, without addressing gentrification and the absence of affordable housing, brings this dilemma into sharp focus. Whereas local politics has traditionally been somewhat boring fare, those seeking local office are now focused on the side effects of new development.

Balancing these competing interests is possible, but it takes a high degree of cooperation between developers and communities. For example, the housing boom in Newark, New Jersey, has balanced the needs of vulnerable communities while keeping the welcome mat out for new development. Unfortunately, striking a balance requires elected officials to engage in proactive planning rather than reactionary policy. Municipal land use planning can prove difficult for many reasons. For example:

• the picayune nature of modern zoning codes can lead to undesirable outcomes. First, bureaucrats often make up their own rules or apply confusing rules inconsistently. This is the very definition of arbitrary regulations. This often leads to a clash of experts.
• municipal leaders may think they can micromanage land uses and control their economy. In doing so, they zone and rezone and overlay, meaning that people cannot rely on their being able to continue their previously legal activities. It diminishes security and means that long-term plans and investments may come to naught.
• because everything is forbidden, but you can get exceptions, you wind up with government for the favored and powerful. This undermines the idea of rule of law. Residents often believe that unless one has “connections,” elected officials will not listen to legitimate neighborhood concerns.
• many municipalities now take the position that the position that, when it comes to the use of land, everything is forbidden except that which is expressly allowed in the zoning code. This has obvious limiting effects on new businesses and models.
• The Pennsylvania Commonwealth Court recently held that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Department of Environmental Protection.

Zoning and land use regulations can be used to promote sprawl or discourage it or to exploit scarce resources or conserve them. Zoning and land use regulations have been used to discriminate against people of color and low-income people. The functional adaptability of zoning and land use regulations offers tremendous opportunities for improving land use regulation.

Developers will need to shift gears by packing new development in the form of socially responsible development. Whether that means working with community members in Opportunity Zones to figure out adaptive reuse projects to benefit whole neighborhoods or finding a path to bring workforce housing into affluent areas, savvy investors at any level should realize that a community can’t thrive sustainably unless its workforce has adequate shelter within their means.

So, my prediction is that we’ll see many more bitter fights between “NIMBY” factions and their own elected representatives — as well as justified outrage in gentrifying areas from low-income community members who are being displaced.

For further information, please feel free to contact Neil A. Stein, Esquire at (610) 941-2469 or nstein@kaplaw.com.

Related Practices: Land Use, Zoning, and Development