Senate Livable Communities Bill Authorizes Planning Grants

The latest APA Advocate, written by the American Planning Association:

I. Sustainable Communities Partnership Makes Progress

Earlier this year the U.S. Departments of Housing and Urban Development and Transportation and the Environmental Protection Agency established an interagency partnership to foster sustainability through better coordination of federal housing, transportation, and environmental programs. This partnership among HUD, DOT, and EPA has worked to define core principles of livability and identify barriers to coordination and integration of federal programs in support of sustainable communities. Among the efforts is a review of opportunities to integrate existing planning requirements and focus research and technical assistance programs on joint sustainability priorities.

The HUD FY 2010 budget request proposed setting aside $150 million within the Community Development Block Grant program for a new sustainability initiative that includes regional planning and metropolitan challenge grants. Both the House and Senate have adopted HUD appropriation bills that include the requested funding.

Sen. Christopher Dodd (D-Conn.) has introduced the Livable Communities Act (S. 1619). This legislation would provide a multi-year authorization for sustainability planning grants and a new sustainable communities office at HUD. The bill authorizes funds for regional planning to make communities more livable and creates an interagency council to promote sustainable development. A House companion bill is expected to follow soon.

Key provisions of S. 1619 include:

  • Incentives for regional comprehensive planning. The bill authorizes $400 million over four years to help regions develop plans that link transportation, housing, community and economic development, and environmental needs.
  • Funding to implement sustainable development projects. Through challenge grants, communities could seek funding to implement key projects contained in regional plans. This new capital fund source would focus on affordable housing, transit-oriented development, transit, bike-ped projects, and brownfield and infill redevelopment. The bill calls for $3.75 billion over three years.
  • Assistance for regional livability initiatives. The legislation ensures that federal agencies are a supportive partner in regional planning by establishing critical research and technical assistance capacities. A new Office of Sustainable Housing and Communities would become a resource for best practices and technical assistance.
  • An interagency council on sustainable communities. This group would bring together a variety of agencies to coordinate federal policy, research, training, and funding. The council would also identify barriers to sustainable development and promote linking transportation, housing, environmental, and energy policies.

APA members can contact their senators regarding the Livable Communities Act through APA’s online legislative action center at

II. Climate Bill Introduced in Senate

On September 30, Sens. John Kerry (D-Mass.) and Barbara Boxer (D-Calif.) introduced the Clean Energy Jobs and American Power Act. The legislation seeks to reduce 2005 carbon pollution levels 20 percent by 2020, 42 percent by 2030, and 80 percent by 2050. It uses a cap-and-trade mechanism to achieve emission reductions, allocating carbon allowances and auction proceeds to various sectors and programs. Specific levels of allocations have not yet been announced.

Like the House-passed Waxman-Markey bill, the Senate bill includes new transportation planning provisions. EPA, in consultation with DOT, would establish a national goal for transportation-related greenhouse gas emissions reductions and then develop models, methodologies, and best practices for states and regions to use when developing transportation sector GHG emissions reduction targets and plans.

As part of the federal transportation planning process, states and Metropolitan Planning Organizations (MPOs) would be required to adopt emission-reduction targets and incorporate strategies for meeting those targets into transportation plans. EPA and DOT will be asked to assess progress toward reducing transportation-related GHGs every six years and report their findings to Congress. States and MPOs (with populations above 200,000) would have two years to develop emission reduction targets and strategies. These MPOs would be required to develop climate targets and strategies. Smaller MPOs could opt in to the process.

The bill establishes a State and Local Energy Efficiency Fund to provide resources for planning and clean transportation. Five percent of the fund would be available to support transportation planning, and 10 percent would go toward transportation investments that reduce emissions. Twenty-five percent of the fund would be set aside for the energy block grant program. APA has previously endorsed legislation to provide funding for planning and clean transportation.

The bill also addresses community efforts to adapt to the impacts of climate change. An adaptation fund would be available to support local plans and projects. Additionally, the bill contains a variety of provisions aimed at reducing emissions from buildings. It would establish national building code energy efficiency targets for residential buildings and commercial buildings, followed by regulations establishing national energy efficiency building codes for these buildings.

If passed, the bill would have to be reconciled with the American Clean Energy and Security Act recently passed by the House. The Senate Environment and Public Works Committee will begin hearings this week, with a mark-up expected by early November. The timetable for floor consideration is still uncertain and likely to slip into early 2010.

III. SAFETEA-LU Gets Short-Term Extension; New Deadline Looms

The current national surface transportation law, SAFETEA-LU, expired on September 30, 2009. In the final hours before the expiration deadline, Congress approved a one-month extension of funding for federal programs. Although highway and transit programs are continuing until October 31 at FY 2009 funding levels, an $8.7 billion rescission of funds that was written into SAFETEA-LU was allowed to take effect. An effort to drop the rescission was thwarted by disagreements over how to offset the spending. For highway programs, this means that funding is now at about $30 billion a year or approximately $12 billion less than the $42 billion included in the FY 2010 budget request.

Debate over extending SAFETEA-LU has been under way for months on Capitol Hill. The Obama administration has called for an 18-month extension, and that proposal has been supported by the Senate. However, House Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) has steadfastly opposed a lengthy extension and has continued to press for a full reauthorization. House leaders have signaled a willingness to accept a shorter extension of three to six months. Senate leaders last week began preparing a six-month extension. Transportation and related infrastructure issues could also be addressed in new legislative efforts to boost job creation and the economy. Some congressional leaders have also floated the idea of a short-term authorization lasting two or three years. Further complicating the picture are ongoing solvency problems with the transportation trust fund and disagreements over how to pay for a reauthorization bill that could cost $500 billion.

IV. “TARP for Main Street” Introduced

When the National Housing Trust Fund was established in 2008 to support rehabilitation and construction of affordable housing with the Housing and Recovery Act, the funding was to come from a percentage of revenue secured by Fannie Mae and Freddie Mac. When these government sponsored enterprises were placed under conservatorship last fall, they were ordered to halt any contributions to the trust fund. In his FY 2010 budget, President Obama requested $1 billion for the trust fund. Both the House and Senate have introduced legislation providing funding from dividends paid by recipients of the Troubled Asset Relief Program (TARP).

The House version of the bill, the TARP for Main Street Act (H.R. 3068), was introduced by Rep. Barney Frank (D-Mass.) on June 26, 2009. It allocates $1 billion of the dividends from TARP recipients to the Housing Trust Fund. On July 9, the House Financial Services Committee held the first and, to this date, only hearing on the bill.

In September, Sen. Jack Reed (D-R.I.) introduced the Preserving Homes and Communities Act of 2009 (S. 1731), which includes a section that allocates $1 billion from TARP dividends. The Reed bill also provides grants to states to help homeowners avoid foreclosure. No action has been taken on the bill yet. Several Republican senators have opposed the idea, preferring to require that TARP funds to be used to pay down the national debt.

V. HUD Appropriations Head to Conference

In late September, the Senate passed its version of the FY 2010 appropriations bill for Transportation and Housing and Urban Development. The Senate funding levels for several HUD programs differ from the version passed by the House earlier this summer. Differences between the bills must be resolved in conference committee.

One area of agreement in the two bills is funding for the new Sustainable Communities Initiative. Both measures would provide $150 million as requested by the Obama administration. The spending bills allocate $100 million for planning grants, $40 million for metropolitan challenge grants, and $10 million for sustainability planning research and technical assistance. The funding for the new sustainability program would be a set-aside within the Community Development Block Grant program but, unlike CDBG, it would be competitive and not formula based.

Despite the agreement on sustainability planning funding, the House and Senate bills differ sharply on overall CDBG funding. The Senate bill includes $3.99 billion for CDBG, less than the $4.5 billion requested by the administration and the $4.6 billion allocated in the House bill. Neither bill addresses proposed formula changes for CDBG.

In an expansion and evolution of HOPE VI, the President’s budget included $250 million for a new program, the Choice Neighborhoods Initiative. The Senate appropriated the full $250 million in the administration’s budget request. The House, however, refused to appropriate funds to a program that has not been authorized and granted $250 million to HOPE VI, with the understanding that the funding would transfer to Choice Neighborhoods when it is authorized.

The HUD budget request proposed cuts to the Section 108 Housing Loan Guarantee program and the Brownfield Redevelopment Initiative. The House bill provides $6 million for Section 108 and $25 million for BEDI. The Senate bill contains no specific funding for either program.

VI. Historic Rehab Tax Credit Bills Reintroduced

On October 1, the Community Restoration and Revitalization Act of 2009 was reintroduced in the House and Senate. In the House, Reps. Allyson Schwartz (D-Pa.) and Pat Tiberi (R-Ohio) cosponsored H.R. 3715 and Sens. Olympia Snowe (R-Me.) and Blanche Lincoln (D-Ark.) introduced its Senate companion, S. 1743. The bills would amend the existing federal rehabilitation tax credit to encourage reuse of historic buildings and promote rehabilitation that achieves increased energy efficiency.

This legislation seeks to increase the availability of the tax credit and encourage its use for the rehabilitation of historic buildings by making several amendments to the existing law. Some changes were proposed in the original version of this legislation. New provisions include: encouraging energy-efficiency, increasing the federal historic tax credit from 20 percent to 30 percent for “small projects” with $5 million or less in qualified rehabilitation expenditures, encouraging moderate rehabilitation, and preventing state historic tax credits from being considered income on federal tax forms.

VII. Census Funding Bill Held in Senate

The U.S. Senate failed to complete work last week on appropriations legislation that includes the Census Bureau, largely because of controversy over an amendment that would require new questions on citizenship and immigration status in the 2010 census. Democratic efforts to end debate on the bill failed earlier in the week. Sens. David Vitter (R-La.) and Bob Bennett (R-Utah) filed an amendment to the FY 2010 Commerce, Justice, and Science Appropriations bill that would cut off funding for the upcoming decennial count unless the Census Bureau asks respondents if they are U.S. citizens or in the country lawfully. The sponsors said their intent is to exclude undocumented residents from the state population totals used for congressional apportionment.

A procedural vote to end debate failed early last week, leading Democratic leaders to postpone further consideration of the measure. Sen. Thomas Carper (D-Del.), chairman of the subcommittee that oversees the census, also filed an amendment aimed at mitigating the consequences of the Vitter-Bennett proposal. The Carper proposal would allow the Secretary of Commerce to reject any census questions that would prevent the Census Bureau from meeting its “constitutional mandate to count the whole number of persons residing in each State.”

In addition to issues of constitutionality, amendment opponents charged that changes this late in the process — census forms are already in production — would be costly, would almost certainly delay the census, and would lead to undercounts in many minority neighborhoods. APA opposes the Vitter amendment.

VIII. Washington Voters Face Measure to Cap Government Spending

This November, voters in Washington State will be asked to decide on a measure that could drastically affect a range of government services and programs. Initiative 1033 places a cap on public sector investment by restricting spending based on population growth and inflation. The measure is modeled on so-called “Taxpayer Bill of Rights” (TABOR) initiatives that have been proposed in other states by anti-government activists.

If passed, Initiative 1033 would limit the amount of state, county, and city revenue that could be spent. Any revenue raised above the limit would be required to go to reducing property taxes in the following year. Because of a constitutional mandate, the initiative could not be altered or repealed for two years without a supermajority vote.

According to the Washington Office of Financial Management analysis, this initiative would reduce general fund revenues that support public safety, infrastructure, and general government activities by an estimated $5.9 billion for the state’s general fund, $694 million for the counties’ general funds, and $2.1 billion for the cities’ general funds by 2015.

Colorado is the only state where a TABOR measure has been adopted. Voters there subsequently repealed the measure after seeing dramatic cuts to critical programs and services. Similar initiatives have recently been defeated at the polls in Maine, Nebraska, Oregon, and California.

IX. U.S. Supreme Court to Hear New Takings Case

The U.S. Supreme Court will hear oral arguments in an important takings case on December 2. Petitioners in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection are challenging the Florida Supreme Court’s ruling that the state’s Beach and Shore Preservation Act does not result in an uncompensated taking. These beachfront property owners believe the act — which authorizes the state to fix a definite boundary or “Erosion Control Line” between their upland private property and the lands seaward belonging to the public — has taken their littoral rights without payment of just compensation. “Riparian” is often interchangeable with “littoral,” which refers to lands abutting an ocean rather than a river.

The case raises many issues for legal scholars, but planners will focus on one: Will the nation’s highest court create a new category of takings called a “judicial taking”? Petitioners claim that the Florida Supreme Court’s decision was a “judicial taking” because the court “redefined” property rights so that the state would not be required to pay just compensation.

Every takings inquiry requires the resolution of a threshold question: Does a property interest exist? If there is no property interest, then no taking can occur. The Fifth Amendment to the U.S. Constitution defines what a taking is, but does not define what property rights are. State law determines that first inquiry. In this case, Florida’s highest court looked to the state’s common law and decided that littoral rights are not property rights; therefore, no uncompensated taking occurred.

APA and its Florida Chapter filed an amicus brief in October urging the Supreme Court to reject the theory that a judicial ruling on a question of state property law can constitute a compensable taking. You may read the brief at There is a great deal of interest in this case, and more than 20 amicus briefs have been filed. A decision is not expected until spring or early summer 2010.

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