Category: Federal legislation

GAO report: National Flood Insurance Program far from healthy

Gary Taylor

A report recently released by the General Accounting Office (GAO) makes clear that the National Flood Insurance Program (NFIP) will remain a policy and political nightmare for Congress for years to come.

As of Dec. 31, 2013, the NFIP owed the government $24 billion, and had not made a principal payment since 2010. The report says that the 2012 law which reauthorized the program for five years requires FEMA to issue a report to Congress by January 2013 on a repayment plan setting forth options to repay FEMA’s total debt to Treasury within 10 years. However, as of January 2014, FEMA had not issued such a report. The GAO report says that most of the options for retiring the debt would require congressional action. As required by the act, FEMA is establishing a reserve fund that could help reduce the need for future borrowing from Treasury, the GAO report said. “However, FEMA is unlikely to initially meet the act’s annual targets for building up the reserve, due partly to statutory limitations on annual premium increases.” Although Biggert-Waters, passed in 2012 phased out insurance rate subsidies on many properties, the Homeowners Flood Insurance Affordability Act passed a few months ago reinstates some of the subsidies ordered phased out by Biggert-Waters. As a result, “phasing out and eventually eliminating subsidies remaining after the 2014 Act poses challenges for FEMA.”

Besides the concern that the NFIP is unlikely to attain the congressional mandate of paying off its current long-term outlook within the required 10 years, the report raises another critical issue that has escaped public attention: the fact that there is no means of ensuring that people who by law should have flood insurance—that is, homeowners with mortgages in vulnerable areas—purchase the product. It suggests that if everyone who should have flood insurance purchases the product, it would reduce the revenue shortages that are a key component of its main problem, affordability.  Under the NFIP, there is no significant penalty for not requiring mortgage-holders in flood zones to secure and maintain flood insurance coverage, and information on the extent of compliance with purchase requirement “is limited.”

The report takes issue with complaints that the FEMA’s flood mapping activities overstates the risk of flooding. The report in fact argues that, “FEMA’s methodology for determining full-risk premium rates may not fully reflect the actual risk of flood damage as intended by Congress.”

 

A link to the full GAO report is here.

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Partnership for Sustainable Communities survives Senate vote

Gary Taylor

The Senate Subcommittee on Transportation, Housing and Urban Development voted yesterday to preserve funding for two key components of the federal Partnership for Sustainable Communities in the FY2012 appropriations bill. Last week, the U.S. House of Representatives voted to strip funding for the federal Partnership for Sustainable Communities.

The bill includes $90 million for HUD’s Sustainable Communities Initiative, a $10 million decrease from FY2011, including $63 million for Regional Planning Grants and $27 million for Community Challenge Grants. The bill also includes $550 million for USDOT’s TIGER program, an increase of $23 million from last year. The bill is scheduled to be marked up today by the Appropriations Committee. Amendments will be allowed in this process.

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Department of Justice marks 10th anniversary of RLUIPA

Gary Taylor

September 22 marked the 10th anniversary of President Clinton’s signing of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The press release issued by the U.S. Department of Justice offered that:

The law was enacted in response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters, and that individuals in prisons, mental health facilities, nursing homes and other institutions were frequently denied full religious freedom.

To mark the anniversary the DOJ issued a report detailing the efforts of the DOJ to enforce the law.  The report contains a number of interesting case examples.

The DOJ also released a Q and A policy statement on the law, what it is, and how it should be interpreted.  Good reading for planners unfamiliar with RLUIPA.

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More on FCC’s shot-clock ruling on cell tower decisions

Gary Taylor

by Gary Taylor

The International Municipal Lawyers Association (IMLA) has assembled materials addressing the FCC’s recent ruling placing time limits on a city/county acting on a cell tower application (I previously blogged on the ruling itself – available here).  The Varnum law firm has developed a presentation on the ruling, what it means for local governments, and strategies for compliance, that is available here.  In addition, the firm of Miller and Van Eaton has drafted a memorandum – available here – that also discusses the possible consequences of the ruling.

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FCC creates “shot clock” for cell tower/antenna applications

Gary Taylor

by Gary Taylor

On November 18 the Federal Communications Commission (FCC) issued a declaratory ruling that could have a significant impact on the way some communities process applications for cell towers and antennas. The ruling establishes a “shot clock” for local zoning authorities acting on wireless facilities siting applications. The Federal Telecommunications Act (FTA) requires local governments to act on applications within a “reasonable period of time.” The order sets presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Failure of the local government to issue a decision within the appropriate time frame will constitute “failure to act,” which will allow the applicant to bring a lawsuit. The “shot clock” is rebuttable in court, meaning that the local government may produce evidence that the delay was reasonable under the circumstances. Of course the local government will bear the costs of litigation (at least initially) to defend the reasonableness of the delay. The rebuttable presumption is a less-drastic alternative than what was requested by the wireless service industry, which had pressed for an automatic grant of a requested permit if the applicable deadline was not met.

The ruling also determined that where a local government denies a personal wireless service facility siting application solely because that service is available from another provider, such a denial violates the section of the FTA that “prohibits, or has the effect of prohibiting the provision of personal wireless services.” The FCC was convinced of the need for such a determination by evidence produced by the wireless industry that cities and counties were using a “one is enough” rationale for denying applications for towers and antennas.

The FCC declaratory ruling issued on November 18 can be accessed here.  The FCC’s news release about the ruling is here.

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Livable Communities Act of 2009 introduced in U.S. Congress

Gary Taylor

by Gary Taylor and Allison Arends

The Livable Communities Act of 2009 (S.1619) was introduced by Senator Christopher Dodd (D-CT) on August 6, and referred to the Senate Committee on Banking, Housing and Urban Affairs.  The stated purposes of the Act are to coordinate housing, development, transportation, energy, and environmental policy in the United States.

The Act creates the Office of Sustainable Housing and Communities within HUD. The objectives of this office will be to coordinate federal policies that will encourage sustainable development, encourage the development of comprehensive regional plans, foster energy efficient housing on the state, regional and local levels, and provide affordable location-efficient housing choices. 

The bill outlines a number of steps to accomplish these objectives.  A primary function of this office important to planners and planning would be the administration of two significant planning grant programs.   The first, the comprehensive regional planning grant program, would make available $100 million a year for four years for which consortia of local governments, metropolitan planning organizations, rural planning organizations, and/or regional councils would be eligible through a competitive process.  The grants would fund regional housing and transportation plans.  Large metropolitan areas with 500,000 or more people could receive grants up to $5 million, communities with between 200,000 and 499,999 people could receive up to $1.5 million, and smaller metropolitan and micropolitan areas would be eligible for up to $750,000.

The second grant program, the Sustainability Challenge Grant Program, would be available to communities that were recipients of the planning grants to help implement their plans by investing in public transportation, transit oriented development, redeveloping polluted sites, and creating affordable housing.  These communities would be eligible for $3.75 billion of authorized funds in increasing amounts over three years to assist implementation of the comprehensive regional plans.  Large metropolitan areas with 500,000 or more people could receive grants up to $100 million, communities with between 200,000 and 499,999 people could receive up to $35 million, and smaller metropolitan and micropolitan areas would be eligible for up to $15 million. 

The bill would also create the Intraagency Council on Sustainable Communities.  The Council would be an independent entity in the executive branch assigned to ensure interagency coordination of federal policy on sustainable development, and coordination of federal policies with state and local governments, and nonprofit and for-profit organizations.

The BLUZ will monitor this bill and post updates if/when it progresses.

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