BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 30 2003 Number 3

[Pages 433-436]
BOSTON COLLEGE LAW SCHOOL MOUNT LAUREL SYMPOSIUM CONSENSUS OBSERVATIONS AND PRINCIPLES*

[Pages 437-486]
EQUITY IN EDEN: CAN ENVIRONMENTAL PROTECTION AND AFFORDABLE HOUSING COMFORTABLY COHABIT IN SUBURBIA?
Rusty Russell*

Abstract:  State-based affordable housing initiatives have survived decades of controversy. Two of the most successful—in Massachusetts and New Jersey—encourage homebuilders to bypass local regulations when zoning ordinances limit available land. Opponents assert that these programs invite developers to pillage open space, impairing wetlands and promoting sprawl. This Article examines the low- and moderate-income housing programs established by the so-called “Anti-Snob Zoning Act” in Massachusetts and the Mount Laurel doctrine in New Jersey. Drawing on Oregon’s integrated planning regime as a point of contrast, it analyzes the potential for tension between policies that advance affordable housing in the suburbs and the asserted municipal interest in safeguarding the local environment. Finding that elements of the legal and regulatory structure appear to promote this conflict, the Article concludes with the observation that a more coherent statewide planning system could better integrate affordable housing and the environment, and offers thoughts on how to alter the perception that the two are adversaries.

[Pages 487-508]
AFFORDABLE HOUSING V. OPEN SPACE: A PROPOSAL FOR RECONCILIATION
Mark Bobrowski*

Abstract:  This Article describes the friction in Massachusetts—largely inspired by controversy surrounding the State’s affordable housing law, Massachusetts General Laws chapter 40B—between housing advocates and open space advocates. The sources of this breach are embedded in the State’s land use statutes. This Article reviews the current law and the symptoms of the feud, and it suggests various legislative proposals for the reconciliation of these progressive forces.

[Pages 509-554]
THE COST OF DEVELOPING AFFORDABLE HOUSING: AT WHAT PRICE?
Jonathan Douglas Witten*

[Pages 555-566]
THE AFFORDABLE HOUSING ELEMENT IN COMPREHENSIVE PLANS
Daniel R. Mandelker*

Abstract:  The New Jersey Supreme Court’s Mount Laurel doctrine requires all municipalities in the state to accept their fair share of regional housing need. Planning statutes that require housing elements in comprehensive plans have adopted the fair-share doctrine as a basis for assigning local affordable housing obligations. This Article argues that the assignment of numerical fair shares is not an acceptable basis for affordable housing policies in comprehensive plans. Alternate strategies should be considered.

[Pages 567-580]
INCLUSIONARY HOUSING PROGRAMS: LOCAL GOVERNMENTS RESPOND TO CALIFORNIA'S HOUSING CRISIS
Cecily T. Talbert* & Nadia L. Costa**

Abstract:  As anti-growth sentiment increases across the country, two laudable goals—affordable housing and environmental protection—are coming into conflict. This tension is most evident in California. Nine of the ten least affordable communities in the country are in California. California also has one of the most complicated and expensive environmental regulatory processes for development. This results in builders being unable to produce housing to keep up with demand, and an increase in the cost of those units that are available. “Smart Growth” is often proffered as the answer to this dilemma: by promoting more compact development, mixed-use and mixed-income neighborhoods, and creating jobs near housing and transportation, housing production will be available to meet the demand at affordable costs. While these principles may serve as a valuable planning guide, they are not a panacea. In this respect, local governments have used inclusionary housing programs as one tool to respond to this escalation of housing costs and probably will continue to do so.

[Pages 581-604]
ABOLISHING EXCLUSIONARY ZONING: A NATURAL POLICY ALLIANCE FOR ENVIRONMENTALISTS AND AFFORDABLE HOUSING ADVOCATES
Robert L. Liberty*

Abstract:  Exclusionary zoning limits residential development over large areas, and even entire cities or towns, to single-family housing on large lots. Exclusionary zoning is unfair to people and families of modest means (many of whom are members of racial or ethnic minorities) because it sharply limits where they can live and thus their access to jobs, education, and a good quality of life. For these reasons, exclusionary zoning was found to violate the New Jersey Constitution in the Mount Laurel case. But exclusionary zoning is also an environmental problem because it is a primary ingredient of the accelerating pace of urban and suburban sprawl. As a consequence, it is a major contributor to increased air and water pollution and habitat fragmentation. The Oregon planning program demonstrates how the abolition of exclusionary zoning promotes a more equitable range of housing choice in suburbs and simultaneously reduces environmental degradation associated with low-density urbanization.

[Pages 605-640]
COMBATING URBAN SPRAWL IN MASSACHUSETTS: REFORMING THE ZONING ACT THROUGH LEGAL CHALLENGES
Benjamin Krass*

Abstract:  Urban sprawl is one of today’s most pressing environmental challenges, especially in Massachusetts. The desire to live in rural areas, while demanding urban services, threatens to make Massachusetts a checkerboard of development, with long-lasting ecological, aesthetic, and social effects. Ironically, although Massachusetts is seen as a national leader in various environmental policy areas, the Common-wealth lags far behind other states in progressive land use planning. This anomaly is perpetuated by the Zoning Act, which gives broad zoning-freeze protection to vacant land, thereby unduly constraining a locality’s ability to plan for growth. Without comprehen-sive reform of the Zoning Act, localities cannot adequately manage growth and will continue to be overburdened in providing the level of basic services necessitated by unplanned growth. With no legislative solution ahead, those portions of the Zoning Act that severely restrict a locality’s ability to plan for growth should be challenged in the courts.

[Pages 641-688]
DEVELOPMENT IMPACT FEES: IS LIMITED COST INTERNALIZATION ACTUALLY SMART GROWTH?
Nick Rosenberg*

Abstract:  Sprawl has defined development in the United States for the past fifty years. As people have moved from the cities to the suburbs, communities have been faced with staggering infrastructure, social, and environmental costs. Many municipalities have attempted to recoup costs of this development by imposing impact fees—charges on development used to pay for necessary public services. Many environmental and smart growth advocates have embraced impact fees as a cost-internalizing approach to regulating growth. Federal and state courts, however, have placed substantial constraints on the scope of the costs that municipalities are able to recover through impact fees. Furthermore, because the most direct infrastructure costs are more readily recouped, development may occur in areas where the lack of these services would otherwise have been prohibitive, while remaining social costs are borne by society at large. This Comment cautions local governments to be wary of using impact fees as a tool to address the broader impacts of sprawl, and urges them to balance the benefits of limited cost recovery with the effect of accommodating growth that might otherwise not occur.

[Pages 689-728]
JUDICIAL DISCRETION AND THE "SUNK COSTS" STRATEGY OF GOVERNMENT AGENCIES
David E. Cole*

Abstract:  When a government agency, during the construction of a public works project, has violated a statute, a court may be hesitant to issue an injunction because of the potential “waste” of public funds that have already been spent. Knowing this, agencies may engage in a “sunk costs” strategy while a decision on enjoining the project is looming—continuing to invest money in the project, often at an increased rate, in order to gain advantage in the equitable balancing used to evaluate the necessity for an injunction. An increase in the amount of irrecoverable public funds invested in furtherance of a statutory violation may tilt the judge’s balancing in the agency’s favor. This Note addresses this sunk costs strategy and concludes that, in light of traditional equitable jurisprudence, the money spent by an agency to take advantage of this balancing cannot be included in the balancing process.