Key Considerations for Lawyers Shepherding Communities through Long-Term Recovery from Major Disasters

JOHN TRAVIS MARSHALL

Lawyers must play an active role in ensuring that state and local governments have the best possible legal infrastructure to support the long journey to recov­ery following a major disaster.

Introduction

Local and state governments responding to disasters require immediate assis­tance from a broad spectrum of organizations and professionals. But even with expert training and broad experience, few professionals find them­selves fully prepared to help communities recover in a chaotic, postdisaster landscape. This is particularly true of lawyers. The previous several decades provide a long list of natural disasters that illustrate the extraordinary chal­lenges that lawyers have faced in helping communities rebound. However, the large number of major disasters hasn't yielded any guiding principles. Lawyers who may find themselves working in long-term recovery are still largely flying blind when it comes to understanding the legal obstacles posed by major disasters and how those obstacles might be addressed or avoided.

The good news is that a growing literature about disaster recovery has begun to examine lawyers' concerns. Scholarly research and practitioner nar­ratives have slowly emerged to help attorneys grasp the fundamental difficul­ties involved with lawyering in the immediate wake of disasters. However, these accounts of a disaster's emergency-response phase provide incomplete guidance to lawyers working in the protracted postdisaster phase known as the “long-term recovery.” The emergency-response phase is a relatively short— albeit critical—phase of the disaster recovery journey.

It is difficult to assess the cost of this deficit in understanding the work of long-term recovery lawyering. But it is probably accurate to say that in­efficient or inept long-term recovery lawyering could delay a community's rebound from disaster. In this chapter I address the troubling knowledge gap surrounding lawyering in the long-term recovery context. I suggests several important considerations that lawyers who work with (and for) state and local governments need to consider in helping those governments navigate ob­stacles encountered during the community's journey to rebirth and renewal.

Long-Term Recovery—the Winding Road through the Community Rebuilding Process

Disaster scholars and professionals generally describe two parts to a commu­nity's recovery journey. In the first days and weeks following a disaster event, a city is focused on responding to the disaster's immediate impacts, including search and rescue, emergency housing, and debris removal. The second phase that follows is the long-term recovery.²

A community's long-term recovery from disaster begins as debris is re­moved from neighborhoods. Families begin to consider rebuilding or depart­ing. Businesses weigh reopening, relocating, or closing shop. Local and state governments start evaluating the projects they can undertake to support in­dividual, neighborhood, and community-wide recovery, including economic development and neighborhood redevelopment initiatives.

Unfortunately, the long-term recovery also tends to open an economic fissure between financially stable middle- and upper-income families (generally speaking, those earning more than 120 percent of area median income, or “AMI”) and less financially secure moderate-, low-, and very- low-income families (those earning 120 percent all the way down to 30 per­cent of AMI).

But the experience of these families is only part of a community's long­term recovery story. A substantial number of a community's moderate-, low-, and very-low-income residents are not so fortunate. Lacking sufficient re­sources, many residents struggle to recover, cobbling together grants, donated labor and materials, and other assistance from state and local government, as well as philanthropic, nonprofit, and volunteer contributions. These indi­viduals and families live paycheck to paycheck. Some rely on a modest fixed income due to age or disability. Many live in poverty.

Likewise, the small businesses owned by these moderate-, low-, and very- low-income families rarely have reserves to survive loss of their client or cus­tomer base. Minority families or small businesses are among the most likely to lack a postdisaster financial safety net.³ Thus, a significant segment of the community faces dire postdisaster adversity, relying directly and indirectly on the work of local and state government attorneys responsible for formulating and implementing the city or state's long-term recovery plans.

The Responsibilities of Lawyers Working in Recovery Are Not

Easily Defined

This chapter is written principally for lawyers working with (or for) local and state governments following major disasters. It also may prove a valu­able resource for the diverse team of professionals with whom lawyers are embedded during long-term recovery. The reason it is pertinent to a wider professional audience is that long-term recovery requires an unusual level of interdisciplinary teamwork.

Lawyers play an integral role in a larger professional unit dedicated to ad­dressing a natural disaster's impact. Consider the extreme level of destruction that accompanies major disasters. All, or a substantial part, of a city or region has been laid waste. A city's long-term recovery often involves re-creating or resurrecting almost every system on which a community relies, from roads to drinking water, stormwater, wastewater, streetlights, and the full range of public buildings and facilities. But it usually also includes a range of housing and community development responsibilities, including affordable housing, economic development, and neighborhood revitalization. Each of these ini­tiatives is urgently important to community stakeholders. Each is also pro­ceeding forward concurrently.

Long-term recovery lawyering forces attorneys to consider more broadly their roles as counselors. Following a disaster, it isn't unusual for local govern­ments to find themselves creating and implementing housing and neighbor­hood redevelopment programs. Local government attorneys frequently help facilitate the acquisition and disposition of property. But in the wake of a di­saster, lawyers must do much more than draft and negotiate agreements. Along with planners, real estate experts, and finance professionals, they must quickly design a program to deliver redevelopment projects to their city, county, or town. This means they must research state and local laws to make sure the city has the power to deploy real estate development tools, ranging from the power to use eminent domain in order to aid private redevelopment of affordable housing to the power to contribute publicly owned land for the redevelopment of city-owned property. Even if the proposed postdisaster program complies with state law, lawyers must vet the program for compliance with dozens of federal laws that control expenditure of federal disaster grant funds, including federal procurement, environmental review, and minimum wage and hour re­quirements.

Lawyers working in long-term recovery are, to be clear, carrying out their customary and ordinary tasks as city or county attorneys. They're prosecut­ing code enforcement cases and appearing before city councils, and they're writing statutes and testifying before legislative bodies. At the same time, however, lawyers are working elbow-to-elbow with colleagues from allied professions assessing community needs, crafting recovery plans, and helping to actively pursue and implement recovery goals. They are frequently cocre­ators of a community's recovery vision, not simply advocates for that vision.

Most local governments could not effectively or efficiently pursue recovery if their lawyers are narrowly engaged in law-related matters. Lawyers are thus instrumental members of a team entrusted with shepherding a community to recovery. They will be valued for their ability to see legal challenges pres­ent in a contract or in a federal regulation. Yet, long-term recovery lawyering is unusually dynamic in its nature. In service of the city's overarching goal of advancing community revitalization, local governments will also look to lawyers as part of their recovery team to guide projects through obstacles and opportunities that may affect the community's recovery.

Ideas for First Principles in Long-Term Recovery Lawyering: Lessons from Emergency Response Lawyering

There are few resources to which lawyers responsible for guiding a commu­nity's long-term recovery can look for guidance. The reason may be that the concept is relatively new to lawyers. Many war stories of lawyers working in long-term recovery flow from the challenges associated with the Hurri­cane Katrina and Superstorm Sandy recoveries.⁴ It may also be that the chaos, urgency, and trauma accompanying major disasters make immediate disaster response a topic more compelling to practitioners and scholars examining lawyers' roles following disaster events. But scholarly and practice-focused studies of emergency response lawyering, although few in number, provide a valuable starting point for analyzing the challenges of long-term recovery lawyering.⁵

The growing literature on challenges faced by lawyers working in the im­mediate wake of disasters supplies at least three fundamental insights about our understanding of the important role that counsel play over the long-term recovery's extended time horizon. I explain these in the next few sections.

The Breadth of a Disaster Will Overwhelm Usual and Customary

Legal Capacity

Lawyers engaged in immediate disaster response work are conscious of not only the enormous scope of destruction but also the human suffering that frequently accompanies disasters. A major hurricane or earthquake can paralyze a city or region, bringing down almost every major system, includ­ing the communications network, roads, the water supply, and wastewater and stormwater systems. At the same time, disaster upends communities in such a brutal way that it reveals abject human need on a scale not com­monly encountered by most lawyers. That is why for lawyers, in coming to a community's aid immediately following a disaster, and later building that community back over a period of years, it is extraordinarily difficult to anticipate the issues they will be asked to address following major disasters.⁶ So, the first insight that the existing body of disaster response lawyering lit­erature shares is that responding to disasters and managing recovery raises a very broad spectrum of legal issues, ranging from animal law to zoning.⁷ No single lawyer—and few law firms or city legal departments—can expect to have the substantive background and expertise necessary to serve a local or state government.

By Helping Communities Plan for Meaningful Long- Term Recovery from Catastrophic Disasters, Lawyers Can Help Communities Bounce Back More Quickly and Equitably

Emergency response planning has long been a required element of state government policies and procedures.⁸ Although these emergency plans are required by the US Federal Emergency Management Agency (FEMA), legal practitioners and scholars are quick to note that they are not all prepared to the same level of rigor and forethought. Approximately 40 percent of the emergency response plans adopted by US states were judged to have lacked at least some important legal grounding.⁹

This comes as no surprise to some scholars and practitioners, who also note that lawyers have failed to engage earnestly with emergency response staff charged with carrying out planning processes.¹⁰ Lawyers' absence or de­tachment, according to experts, has serious consequences for local govern­ment, not the least of which is potential exposure to tort claims associated with preparation or implementation of emergency plans."

Hazard mitigation planning is a particularly important part of a commu­nity's comprehensive planning process because it helps communities avert development that puts residents at risk?² Such planning is informed by the understanding that most communities are continually growing or redevelop­ing. In fact, 50 percent of the built environment that surrounds us now will be replaced by 2050?³ Prudent hazard mitigation planning helps minimize the need for postdisaster residential and commercial redevelopment initiatives that are so often major undertakings during a community's long-term recov­ery. It is imperative that lawyers play an active role in mitigation planning that will help local governments build more safely or less frequently in higher hazard areas. The stakes are high. As briefly discussed earlier in this chapter, moderate-, low-, and very-low-income families are often the most vulnerable to natural hazards, and they are also the population most likely to struggle during the long-term recovery. These families are also likely to live in vul­nerable geographic areas, such as coastal or riverine plains. Effective hazard mitigation planning will provide an essential legal basis for communities to argue that their decisions concerning new and future settlement patterns pro­tect lives and property and promote a more effective recovery from disaster?⁴

Planning with the long-term recovery in mind also means that communi­ties think about the challenge of finding temporary and permanent hous­ing for those displaced by a major disaster. Local governments can play a major role in laying the groundwork for a more successful long-term recov­ery by identifying and pursuing better postdisaster housing options for their communities. As part of their legal oversight of a required comprehensive planning process, counsel should ensure that comprehensive plan housing elements should include a section concerning temporary and permanent postdisaster housing. Consider, for example, the challenges faced in commu­nities like the town of Lyons, Colorado, which had a very small inventory of vacant land for temporary housing and permanent housing.¹⁵ After a sub­stantial number of the town's 2,000 residents were displaced by a September 2013 flood event, those who lost their homes had nowhere to live in Lyons and were forced to make a long drive to nearby towns and cities. As the 2013 flood event made clear, homes could not be rebuilt in the high-hazard areas adjacent to the St. Vrain River. To make matters worse, these displaced fami­lies had little prospect for returning permanently to Lyons. The city had no provision to convert publicly owned land to private homeownership short of a voter referendum?⁶ Without any plan in place for replacement housing, city residents rejected a proposal to swap existing city parkland for residents' former riverside homesites.

Local Political Pressures and Media Coverage Heighten Scrutiny of Postdisaster Lawyering

The role politics and the media play in disaster response and recovery is well documented, particularly in the days immediately following a disaster?⁷ However, the literature focuses mainly on national politics and its influ­ence on the level of federal funding that will be delivered to storm-affected communities. As for the media coverage of disasters and their immediate after-effects, the press has been blamed for disaster fatigue, which recognizes that Americans' interest in disaster-related stories usually wanes shortly after the disaster. At the same time, the press has been hailed for highlighting the injustice and inequity often associated with the chaos immediately following a disaster. These treatments of postdisaster media and politics are incomplete.

There is another dimension to postdisaster politics and media coverage of which lawyers working long-term recovery should be aware. Legal and policy decisions that lawyers assist in making on the local level are frequently influenced over the long term by pressure exerted by local political actors and media coverage. Lawyers working in long-term recovery must be mindful that their work is continually subject to the push and pull of political consid­erations and media scrutiny.

Current emergency-response literature notes that politics influences law­yers' recovery work in many ways. Postdisaster neighborhood redevelopment decisions have historically invited widespread redevelopment of high-hazard areas due to short-term political concerns associated with angering residents. This politics of pleasing the electorate has prevailed, even when the decision to allow rebuilding across a disaster area could potentially subject a local gov­ernment to liability for future disaster-related losses.¹⁸

Local politics and the media also influenced the evolution of post-Katrina decision-making on a range of law-related recovery matters. In a city where 80 percent of the city's land area saw significant flooding and where 134,000 housing units were damaged or destroyed, neighborhood rebuilding and re­covery loomed as enormous undertakings. Residents, their elected represen­tatives, and state and local officials were all eager to see progress toward a return to normal.

In an effort to facilitate a more robust recovery, the City of New Orleans made an early and initial decision in late 2006 to place responsibility for car­rying out certain housing-related redevelopment projects to the New Orleans Redevelopment Authority (NORA). NORA is a putatively independent rede­velopment authority created under Louisiana state law in the 1960s to serve the city's redevelopment needs, and community stakeholders hoped that re­covery projects administered by NORA could be insulated from local politi­cal pressures?⁹ In many respects, this hope was not realized. The city's slowly unfolding long-term recovery helped create, for example, an environment where local politics nudged NORA to consider a redevelopment strategy that it and its community-based stakeholders initially disfavored: neighborhood redevelopment using public auctions' storm-damaged and formerly occupied Road Home properties.²⁰ Although NORA was created to operate indepen­dently of the direct control of the mayor and city council, it received much of its post-Katrina redevelopment moneys in its role as a subgrantee of the city's $440+ million allocation of disaster relief under the federal Community Development Block Grant (CDBG) program. As the City's subgrantee, NORA was required to negotiate a new cooperative endeavor agreement with the City each year, and it was frequently asked to appear before the New Orleans City Council in public hearings to answer questions about its progress on as­signed post-Katrina redevelopment responsibilities. The chance that the city could decide year to year to reduce or eliminate Nora's main source of fund­ing, and the spectacle of public hearings, necessarily made NORA responsive to competing efforts for control by the mayor and council.

NORA's overarching plan for redevelopment of the city's storm-damaged properties was set forth in the Parish Redevelopment and Disposition Plan.21 As a part of each parish's long-term recovery plan, Orleans Parish was re­quired by law to create a parish-wide plan articulating strategies for reuse or redevelopment of residential properties returned to New Orleans through Louisiana's post-Katrina Road Home Program. Road Home was considered a lynchpin of neighborhood recovery, offering residents the choice to rebuild their storm-damaged property, sell their property to the state and rebuild elsewhere in Louisiana, or sell their property to the state and move out of state. Most New Orleans residents accepted the state's offer to stay and help rebuild, but a substantial number of homeowners decided to cash out (even­tually totaling about 4,500 homeowners). Those newly orphaned residential properties were scattered across the city, but they were mainly situated in relatively low-lying neighborhoods, and virtually all of them were left with storm-damaged structures.

NORA was designated as the recipient of the Road Home Program's roughly 4,500 so-called buyout properties. As a recipient, it was responsible for drafting the state-mandated Orleans Parish Disposition Plan. This plan highlighted NORA staff's preference for legal strategies that would dispose of properties according to the strength of individual neighborhood real es­tate markets and the condition of surrounding homes. Importantly, the plan also memorialized the wish of New Orleans' neighborhoods to create af­fordable housing while retaining the longstanding homeownership charac­ter of the storm-damaged residential properties. The plan was approved by the New Orleans City Council and the state's Louisiana Recovery Author­ity in December 2007. To achieve the plan's goals, NORA pledged to use neighborhood-tailored disposition strategies, including using requests for proposals to attract private and nonprofit developers to particular neighbor­hood redevelopment opportunities. NORA also agreed to help implement an innovative law adopted by the New Orleans City Council. The city's Lot Next Door ordinance gave returning homeowners the chance to expand the exist­ing footprint of the homes by purchasing the adjacent lot of a neighbor who decided not to rebuild. These and other aspects of NORA's redevelopment strategy were intended to support residential redevelopment at a pace that re­flected market demand for residential redevelopment. Significantly, the state- mandated NORA plan did not specifically call for disposition of properties by public auction. Agency staff believed that auctions increased the chance that speculative investors—property purchasers with no connection to the neighborhood or perhaps even the New Orleans region or Louisiana—would purchase a majority of the property and have the chance to do so relatively early in a neighborhood's post-Katrina redevelopment. In addition, NORA was concerned that neighborhoods with high levels of absentee landowners would likely lead to those new owners converting what had historically been homeownership units to rental units. By potentially promoting this nature of neighborhood change, the agency would be cutting against its pledge and the city's goal to preserve what had historically been homeownership units. NORA also noted real estate research suggesting that a public auction's ef­fects on neighborhood redevelopment would be mixed.²² Despite the agency's deeply held concerns, however, it was noteworthy that NORA's disposition plan did not categorically restrict auctions as a potential disposition method.

The long-term recovery environment is a landscape of dilapidation and despair. Need overwhelms capacity, and the list of essential projects far out­strips available funds. Ideal and preferred long-term redevelopment strate­gies can be overshadowed by the clouds of adversity that accompany major and complex redevelopment challenges. Although several variables may have influenced changes in Nora's redevelopment strategy, slow arrival of federal funding and three years of mounting pressure significantly altered NORAs redevelopment strategy. The first federal disaster CDBG funds earmarked for revitalization of neighborhood-based assets did not hit New Orleans streets until March 2009, nearly three and a half years after Katrina flooded the city. To make matters worse, it was estimated that nearly 25 percent of New Or­leans's residential addresses were blighted, most of them being dilapidated and uninhabitable from years of pre-Katrina neglect and also the seemingly corrosive effects of Katrina's floodwaters?³ Under these circumstances, the pressure on NORA to consider alternative legal and real estate tools mounted. At least one member of the New Orleans City Council strongly disagreed with the agency's initial strategy to forgo auctions and rely on clustered of­ferings of property for redevelopment. An influential NORA board member and radio talk-show host, who also ran against New Orleans's incumbent mayor, C. Ray Nagin, argued strongly that the agency was holding up the city's recovery by refusing to sell the storm-damaged properties to the high­est bidder. The Louisiana Land Trust, which was and remains the state agency entrusted with holding title to the storm-damaged properties until ready for sale to private landowners, noted that it was bearing significant monthly costs maintaining and insuring properties—costs that could otherwise be borne by auction purchasers. And each of these stakeholders, together with other local stakeholders, cited lost local property tax revenues and favorable press that accompanied the decision of sister Louisiana parishes to auction their storm-damaged properties—auctions that regularly generated millions in sales receipts for the State of Louisiana. This evolution of NORA's legal and real estate strategy for neighborhood redevelopment demonstrates how po­litical and media voices can influence local governments to adjust the course of a community's long-term recovery.

NORA held its first auction in the spring of 2011 and has continued to auc­tion properties as part of its overall suite of legal and real estate tools for re­turning vacant, blighted, and abandoned properties back into the New Orleans real estate market. No analysis has yet been done to assess the neighborhood impact—pro or con—of the auction as a postdisaster property disposition tool.

Lessons for Lawyers from Recent Long-Term Recoveries

Hurricane Katrina's unprecedented widespread destruction led many researchers and professionals to turn their attention to long-term recovery. In the second half of this chapter I suggest three important considerations for lawyers working in long-term recovery. These are discussed in the next few sections.

Lawyers Are in the Best Position to Help Communities If They Are Familiar with Federal, State, and Local Laws Applicable to Long- Term Recovery

Lawyers working in the disaster context should be aware of certain core federal laws, including the federal Stafford Disaster Relief and Emergency Assistance Act and the Housing and Community Development Act, and key policies, such as the National Disaster Recovery Framework.²⁴ These federal laws define the general universe of recovery activities for which the federal government will reimburse local governments.

Familiarity with key federal laws, while necessary, is insufficient. Because disasters begin and end locally, it is also essential that lawyers have a working knowledge of local and state law?⁵ State and local legal landscapes contain nu­ances that can have a significant effect on design and implementation of disaster recovery programs. A state's constitution may give local governments broad latitude to donate public property for redevelopment of affordable housing. But local ordinances may ultimately frustrate the ability of cities and towns to con­vert a public park to housing units for residents displaced by a flood.

Ensuring compliance with applicable laws is not an easy task. Catastrophic disasters demand whatever immediate attention local and state governments can muster. The fog of destruction and disorder that hangs over a commu­nity makes it difficult even for comparatively high-functioning governments to respond appropriately. This responsibility for following all applicable laws becomes a head-spinning responsibility for local and state governments scrambling to help communities jumpstart recovery following a catastrophic disaster. Almost overnight, counsel serving local and state governments must ensure that they honor dozens of federal statutes and regulations relating to disaster recovery.

The consequences can be severe for failure to follow all applicable laws. Even a legal misstep that some would deem technical and not directly related to the overarching goals of helping a community recover can jeopardize a community's ability to carry out recovery. If a local government fails to com­ply with federal, state, or local laws when carrying out any range of recovery activities, the local government faces both the prospect of not receiving re­imbursement from the federal government for work the local government completed and, at a minimum, not being able to timely pay contractors (often local firms) for work they have completed.

These costly local government failures are rooted in noncompliance with straightforward legal requirements and often involve oversights in contract drafting. Federal audits of local and state government recovery programs are replete with examples:

• HUD's inspector general recommended that St. Tammany Parish, Loui­siana, repay more than $450,000 in federal disaster recovery block grants because the parish did not always understand or follow HUD's disaster recovery program requirements, including the parish's own policies and procedures for implementing the recovery program;²⁶

• FEMA's inspector general questioned whether a New Jersey township should be reimbursed for $748,000 because it engaged in “improper contracting,” including failing to follow federal procurement regulations requiring, among other things, the local government to secure multiple bids for nonexigent recovery work and to take prescribed steps to attract bids from historically disadvantaged firms^⁷

• HUD's inspector general questioned reimbursing New York City for disaster recovery expenses because it could not confirm that it always paid certain workers hourly rates required under the federal Davis-Bacon Act, which “require[s] that all laborers and mechanics be paid prevailing wage rates on Federal construction projects^⁸ and

• FEMA's inspector general recommended that Jackson County, Florida, not be reimbursed for more than $3 million for, among other errors, “misinterpret[ing] Federal regulations and guidelines” relating to “Federal procurement requirements when awarding a contract for professional consulting services.” The local government explained that its error was due to its confusion of federal regulations with state guidelines?⁹

Failure to comply with applicable laws and procedures can threaten to delay a community's recovery and, in some instances, retard the recovery by leaving already cash-strapped local governments and local businesses in even more vulnerable positions. Counsel for local and state government have a special op­portunity and responsibility to ensure that their clients satisfy highly detailed legal requirements associated with all aspects of a community's recovery. Local and state governments can avoid the kinds of missteps that derail community recovery by ensuring that basic legal requirements applicable to recovery pro­grams are woven into the fabric of the policies and procedures that govern the local or state government's pre- and postdisaster work.

Lawyers Must Participate in Planningfor Future Disaster Events, Including Creating a Blueprint to Adopt Laws and Creating Institutions Necessary to Support a Robust Recovery

It may not be sufficient for local governments merely to comply with the laws that are on the books. Major disasters also spotlight gaps in the legal landscape.

Before disaster strikes, there are at least three questions lawyers should en­courage local governments to consider about their legal landscape. First, local and state governments must anticipate laws and institutions that may need to be in place to authorize and carry out recovery programs. If local laws are missing, the heat of a postdisaster crisis isn't the best time to draft, consider, and adopt a new ordinance.³⁰ Second and in the same vein, if a local govern­ment determines that an existing local law could pose an obstacle to efficient and equitable recovery, then at a minimum that ordinance or statute should be flagged for amendment or repeal. Third, if a city or county determines that its existing governing infrastructure is inadequate to manage a vital part of the postdisaster redevelopment, the preferred time to design and, if necessary, staff and task the new agency is before disaster strikes.³¹

In conjunction with their local or state government colleagues, private practitioners should take the lead in auditing laws and institutions. This audit would highlight the essential legal and institutional ingredients for successful recovery from disaster. The audit could begin with a review of the ordinances, statutes, and comprehensive plans that govern the community. And then it could proceed to a review of the best practices of peer local and state govern­ments, particularly those that have previously navigated a long-term recovery. The audit's focus would be to determine if those sister jurisdictions possess capacities that have helped them bounce forward after catastrophe.

Local government lawyers, joined by their colleagues from allied profes­sions, will likely have little trouble reading their jurisdiction's ordinances and policies and finding laws that might impede recovery. In other words, their review of local laws will remind them of what they know doesn't currently function well but would be crucial to a demanding long-term recovery. Con­sider the example of Lyons, Colorado, where a local ordinance prevented the city from swapping or otherwise conveying city parkland to allow for devel­opment of postdisaster affordable housing absent a public referendum. In a community such as Lyons, where public parkland and undeveloped land is at a premium, counsel and staff would no doubt appreciate that their local gov­ernment might be well advised to draft an emergency ordinance that would allow the jurisdiction to convey city property for housing development based on approval of the city council.

A more challenging task for government counsel and city staff might be using this audit to assess the laws and policies that should be on the books but are missing. This is a more challenging inquiry, but it starts with counsel and staff looking at the current condition of the city's neighborhoods and discussing the extant factors associated with persistent vulnerability in residents' health, fi­nancial status, or social well-being. For instance, is the city comfortable with the current range of rental and homeownership options for its residents? It may be that the housing occupied by the city's low- and moderate-income community skews dramatically toward renters with comparatively few homeowners.³² This imbalance puts the city and its residents in a precarious position in the event of a disaster. Renters are highly vulnerable to displacement.

Ideally, the audit process would trigger the city to consider potential legal interventions to address the identified vulnerability related to the city's un­usually large community of renters. The solutions to create more homeowner­ship opportunities for low- and moderate-income families might include, for example, creating an affordable housing trust financed by a small impact fee that will be charged to apartment and home developers on issuance of their building permits.

Taking stock of a city's laws—those missing that ideally should be in place and those in place that should be repealed or amended—gives local and state governments a blueprint for local governments' more resilient legal landscape.

Counsel Should Promote Collection and Safe Keeping of Housing and Community Development Data Vital to Postdisaster Recovery Efforts Developing working familiarity with a shelf full of statutes, regulations, and policies is only part of the challenge faced by lawyers working in long-term recovery. More vexing are the circumstances under which counsel must pro­vide advice to their public-sector clients.

Disasters cut power and destroy records. Disasters also sometimes expose a local government's failure to collect basic data about property conditions, property ownership, payment of taxes, or land use and zoning designation. In such cases, lawyers must render advice with the understanding that the information that their clients have been giving them may be incomplete or incorrect.³³

An understanding of a community's pre- and postdisaster neighborhood characteristics is vital to making informed decisions about long-term recov­ery, and it is essential to a local government's argument for securing supple­mental assistance from state and federal partners/⁴ Information detailing the age, type, and condition of housing stock, the comparative proportion of homeownership and rental units that make up a community's housing, and the number of moderate-, low-, and very-low-income families living in a community can help local governments anticipate and address a community's housing vulnerabilities/⁵ Counsel can then work with the local government to craft policies and build local institutions that can help meet existing and future housing needs.

Data isn't just helpful before disaster strikes. It is also essential for counsel­ing local governments on efficient and equitable investment of scarce resources during the long-term recovery. Data is crucial for lawyers who must advocate for redevelopment, because it both enables them to deploy the appropriate legal and real estate strategies for housing development and to make the critical—but sometimes unpopular—argument for new affordable housing.

Lawyers working in long-term recovery cooperate closely with planners and housing professionals to lay the groundwork for redevelopment of home­owner and rental units. Neighborhood housing data, for example, aids local governments in efficiently and equitably allocating resources for rebuilding affordable housing. One of the New Orleans Redevelopment Authority's chief responsibilities was to replace storm-damaged homes with new or rehabili­tated affordable homeownership units. NORA accomplished this objective by: (1) tapping the supply of state-owned Road Home buyout properties; (2) using its statutory power to expropriate blighted properties; and (3) deploying other legal tools for acquisition, including land swaps and clearing title on tax ad­judicated properties. At the same time, NORA also transferred properties for affordable housing development to: (1) individuals; (2) private developers and nonprofit developers based on competitive proposals; (3) individual neighbor­hood residents under the Lot Next Door ordinance; and (4) land swaps.

With limited financial resources at its disposal, it was critical for NORA to inform its decisions about the most appropriate legal and real estate tools (e.g., expropriation, land banking, market purchase, tax lien foreclosure, land swap, etc.) to use the best available data. For example, agency resources would likely be conserved by land-banking properties in neighborhoods with rela­tively low property values and relatively high levels of vacancy or abandon­ment. The best legal and real estate strategy for the community would be for a community to hold properties and maintain them until the neighborhood begins to show stronger signs of recovery or the community controls enough properties to allow for the community to consider a catalytic redevelopment project. But a community can't make informed decisions about legal and real estate development tools unless it has accurate data regarding a neighbor­hood's status. This vital information is drawn from data on building permit issuances, code enforcement citations, home conditions, and home sales prices—just to name several. If, for instance, data gathered by a community indicated that residents of a neighborhood with high levels of vacancy and low property values were largely continuing to pay taxes and maintain yards, then this data may inform a local government to proceed quickly with infra­structure projects that would strongly signal to displaced residents the local government's intent to invest in reviving a heavily damaged neighborhood.

Unfortunately, data concerning New Orleans's neighborhoods was not al­ways fully, widely, or immediately available (much less effectively shared or collected) until the nonprofit Greater New Orleans Community Data Center issued a report on New Orleans's vacant and abandoned properties in the spring of 2010.³⁶ Until that time, more than four years into the Katrina recov­ery, NORA's decisions regarding its housing initiatives were based on the best anecdotes and information that staff could gather from agency property in­spection data, local residents and neighborhood associations, area real estate professionals, and city colleagues.

There is another dimension to the imperative that communities develop predisaster strategies for collecting important data concerning housing and community development. Debates concerning the need for affordable hous­ing often center around questions about demand. If there is one truth that has emerged from recent long-term recovery journeys, it is that disasters hit the poor the hardest, particularly a city's extremely low-, very low-, low-, and moderate-income families.³⁷ These are families, for example, in which one or both parents work in the city's hospitality industry. They generally live in rental housing, sometimes subsidized, but just as often they live in small dwellings characterized as older, inexpensive duplex, triplex, and quadraplex units.3⁸ After a disaster, these low- and moderate-income families are fre­quently displaced from these small rental units because their apartment has been destroyed or the landlord cannot afford to make immediate repairs. Res­idents are left with tough choices, including paying inflated postdisaster rents, moving to another city, or moving in with family or friends whose homes did not suffer significant damage.

Building affordable housing is an imperative in the vast majority of Ameri­can states. In 2011, nearly 23 percent of families in the United States were overburdened by housing costs because they had to pay more than 50 percent of their income to cover housing costs.³⁹ Disasters can make this situation even worse, damaging or destroying a significant portion of a city's affordable housing stock and leaving the community with a significant deficit of afford­able units. This was the case in the year after Hurricane Katrina, when the percentage of New Orleans families overburdened by housing costs rose to 26 percent, spiking from 21 percent between 2008 and 2009.⁴⁰

Helping disaster-impacted cities plan and develop affordable housing is an important role for local governments and their lawyers to fulfill. It is par­ticularly noteworthy that the availability—or not—of adequate housing data played a critical role delaying development of thousands of units of affordable housing following Katrina. As the post-Katrina long-term recovery proved, however, building an adequate supply of affordable housing precipitated a battle with interests that oppose building apartments that would allow for low- and moderate-income families to concentrate in an urban area.

In October 2009, at the request of a well-known advocate for New Orleans-area landlords, the Louisiana Bond Commission imposed a mul­tiyear moratorium on approval of bonds to support development of new affordable multifamily communities. In support of his argument for a morato­rium, this landlord asserted that the Bond Commission lacked data showing that market demand in New Orleans and in other parts of Louisiana justi­fied new affordable housing unit construction. The commission agreed with the landlord advocate and decided that it should procure a detailed housing market-demand report before it considered approval for more bonds to fund affordable housing. Although this moratorium was lifted for several afford­able housing development projects for which the State later authorized an in­dependent demand analysis, the moratorium continued for almost five years until 2014. The US Department of Justice later alleged that the state Bond Commission had engaged in impermissible housing discrimination, but it is noteworthy that uncertainty regarding affordable housing demand created the initial opening for affordable housing opponents to block much-needed replacement housing.

Conclusion

A wide range of professionals must cooperate to do the heavy lifting involved in long-term disaster recovery. The lawyers working in city halls, state agen­cies, nonprofits, and civic groups are always on the teams that help mend a city or state following disaster. Moreover, lawyers frequently play a leading role in creating and implementing a city's or a state's recovery plan and the redevelopment programs that implement those plans. Up until now, however, lawyers responsible for guiding communities through long-term recovery have had few resources to help highlight the important challenges and oppor­tunities they will face. This isn't just unfortunate. It is also a deficiency that carries real human and economic costs for the communities lawyers are serv­ing, not to mention the governments that are funding the recovery.

The imperative to educate and otherwise prepare lawyers to help lead com­munities through long-term recovery is gaining traction among members of the bar.⁴¹ But it is important that these efforts are sustained and broadened. Law schools, for example, represent tremendous community resources. State governments, local governments, and community-based nonprofits repre­sent potentially compelling partners for law school clinics, research semi­nars, and pro bono projects. Law students, law faculty, and staff attorneys are well-trained and ideally situated to conduct extended and in-depth audits of local and state laws to determine whether they are responsive to the urgent and extraordinary needs posed by major disaster events. Unfortunately, under the ongoing and looming threats associated with climate change and sea-level rise, the demand for lawyers to lead and staff long-term recovery efforts will only grow. Lawyers must continue to develop and improve their thinking as professionals who will be asked to serve communities emerging from disaster events. Together with local and state bar associations, nonprofits, and law schools, the profession must be prepared to assume this role.

NOTES

This author gives special thanks to Victor J. Franckiewicz Jr., Esq., partner in the New Orleans office of Butler Snow LLP. As chief outside counsel to the Louisiana Land Trust, a legislatively chartered nonprofit, Mr. Franckiewicz has played an essential role in helping the storm-impacted parishes of South Louisiana recover from the unprec­edented destruction wrought by Hurricanes Katrina and Rita. This chapter is greatly informed by long-running conversations with Mr. Franckiewicz concerning the role of lawyers in regional and local long-term recovery.

1 Disaster recovery practitioners have noted that long-term disaster recovery has generally received less attention. See Claire B. Rubin, Long- Term Recovery From Disasters— The Neglected Component of Emergency Management, 6 J. or Homeland Security & Emerg. Mgmnt. i, 1-2 (2009) (reflecting that the base of knowledge concerning long-term recovery is “not adequate... there are very serious deficiencies in basic and applied research on the topic, and that means a weak foundation exists for current and future recovery planning and implementation”).

See Gavin P. Smith & Dennis Wenger, Sustainable Disaster Recovery: Operationalizing an Existing Agenda, in Handbook of Disaster Research 234, 237 (H. Rodriguez et al. eds. 2006) (describing long-term recovery as “the process of restoring, rebuilding, and reshaping the physical, social, economic, and natural environment through pre-event planning and post-event actions”).

John Travis Marshall, Ryan Rowberry & Ann-Margaret Esnard, Core Capabilities and Capacities of Developer Nonprofits in Post-Disaster Community Rebuilding 18 no. 2 Nat. Hazards Rev. 05016004-2 & 3 (2017).

See, e.g., Melissa H. Luckman et al., Three Years Later Sandy Survivors Remain Homeless, 32 Touro L. Rev. 313, 346-49 (2016); William P. Quigley, A Letter to Social Justice Advocates: Thirteen Lessons Learned by Katrina Social Justice Advocates Looking Back Ten Years Later, 61 Loyola L. Rev. 623, 626-88 (2015). William C. Nicholson, Obtaining Competent Legal Advice: Challenges for Emergency Managers and Attorneys, 46 Calif. W. L. Rev. 343, 362 (2010) (observing, for example, that there are no analyses of the working relationship between local government attorneys and local emergency managers).

See Joseph Jarret & Michele Lieberman, “When the Wind Blows”: The Role of the Local Government Attorney Before, During and in the Aftermath of a Disaster, 36 Stetson L. Rev. 293, 324 (2007) (noting that “[d]isasters generate a wide array of crises, making it almost impossible to foresee even a substantial fraction of the situations that will mandate legal acumen and intervention”).

See Clifford J. Villa, The Practice of Disaster Law, L. Practice Today (Mar. 2012).

Disaster mitigation planning is required of both state and local governments. See J. R. Nolon, Disaster Mitigation Through Land Use Strategies, 23 Pace Envtl. L. Rev. 959, 963-64 (2006).

William C. Nicholson, Obtaining Competent Legal Advice: Challenges for Emergency Managers and Attorneys, 46 Calif. W. L. Rev. 343, 353-54 (2010). Id. at 355-56.

Denis Binder, Emergency Action Plans: A Legal and Practical Blueprint “Failing to Plan is Planning to Fail,” 63 U. Pitt. L. Rev. 791, 794-803 (2002).

See, e.g., Nolon, Disaster Mitigation, 968-69.

Arthur C. Nelson, Ph.D., FAICP, Keynote Address, Rocky Mountain Land Use Institute (Mar. 13, 2015).

See generally Andrea McArdle, Storm Surges, Disaster Planning, and Vulnerable Populations, 50 Idaho L. Rev. 19 (2014).

See Andrew Rumbach & Carrie Makarewicz, Affordable Housing and Disaster Recovery: A Case Study of the2013 Colorado Floods, in Coming Home After Disaster: Multiple Dimensions of Housing Recovery, 104 (Alka Sapat and Ann-Margaret Esnard eds. 2017); Panel Discussion, Post-Disaster Long- Term Recovery: Critical Considerations for Resilient Communities, Rocky Mountain Land Use Institute, University of Denver Strum College of Law, Denver (with D. Bowman, D. Chandrasekhar, R. Ehrenfeucht, D. Finn & A. Rumbach) (Mar. 9, 2018) (transcript on file with the author).

See id., Rumbach & Makarewicz, Affordable Housing, 104-05.

See generally Douglas Brinkley, The Great Deluge: Hurricane Katrina, New Orleans, and the Mississippi Gulf Coast (2007). See Gerry Frug, Why Rebuilding After Disasters Is Largely a Legal Challenge, CityLab (Oct. 13, 2013), www.citylaw.com.

See New Orleans Redevelopment Authority: About, www. noraworks.org. The city itself retained some post-Katrina housing initiatives as well as a long list of highly visible citywide redevelopment projects. The city and NORA lacked access to any federal community development block grant funds for neighborhood revitalization projects until two years after Katrina and did not begin spending down that money until March 2009. See John Travis Marshall, Rating the Cities: Constructing a City Resilience Index for Assessing the Effect of State and Local Laws on Long-Term Recovery From Crisis and Disaster, 90 Tulane L. Rev. 35, 37 (2015).

The State of Louisiana created the Road Home Homeowner Assistance Program (“Road Home”) to compensate Louisiana homeowners whose houses were lost or damaged by Hurricanes Katrina and Rita. See generally Greater New Orleans Fair Hous. Action Ctr., et al. v. US. Dep’t of Hous. & Urb. Develop., 631 F.3d 1078, 1080 (D.C. Cir. 2011).

Parish Redevelopment and Disposition Plan for Louisiana Land Trust Properties (2007) (on file with author). This plan memorial­ized that the New Orleans City Council approved in December 2007 a disposition plan for the state, enumerating the New Orleans Redevelopment Authority’s key disposition principles for returning the parish’s 4,700-plus Road Home properties to commerce.

Raymond H. Brescia, Elizabeth A. Kelly & John Travis Marshall, Crisis Management: Principles That Should Guide the Disposition of Federally Owned, Foreclosed Properties, 45 Ind. L. Rev. 305, 331 & nn. 214-17 (2012).

Charles Chieppo, New Orleans Winning Strategy in the War on Blight, Governing (Mar. 18, 2014), www.governing.com.

See Clifford J. Villa, The Practice of Disaster Law, L. Practice Today (Mar. 2012).

See generally John Travis Marshall, Rating the Cities: Constructing a City Resilience Index for Assessing the Effect of State and Local Laws on Long- Term Recovery From Crisis and Disaster, 90 Tulane L. Rev. 35 (2015).

See St. Tammany Parish, Mandeville, LA, Did Not Always Administer Its CDBG Disaster Recovery Grant in Accordance with HUD Requirements or as Certified (Apr. 6, 2017), Audit Report No. 2017-FW-1004.

See Office of Inspector General, Audit of FEMA Public Assistance Grant Funds Awarded to Downe Township, New Jersey (Sept. 17, 2017), OIG No.

OIG-17-1o6-D (the IG also cited the township’s failure to follow regulations requiring the contractor to furnish invoices for work completed that are supported by documentation that describes hourly rate, equipment usage, and work activity logs).

See The City of New York, NY Did Not Always Use Disaster Recovery Funds Under Its Program for Eligible and Supported Expenses (Sept. 27, 2018) Audit Report No: 2018-NY-2007, 6.

See FEMA Should Recover $3,061,819 in Grant Funds Awarded to Jackson County, Florida (Dec. 4, 2018), OIG-19-12, 4.

See Ryan M. Seidemann, Megan M. Terrell & Christopher D. Matchett, How Do We Deal With This Mess? A Primerfor State and Local Governments on Navigating the Legal Complexities of Debris Issues Following Mass Disasters, 61 U. Miami L. Rev. 1135, 1147 (2007).

See Gerry Frug, Why Rebuilding. Frug explains that “[a]fter a major natural disaster, the redevelopment process opens up what might seem like intractable legal issues, including property buy-outs, beach access, insurance policy, and cross-jurisdictional governance.”

This imbalance between low- and moderate-income renters and homeowners has been identified as a concern for Panama City, Florida, following Hurricane Michael. Panama City had an unusually high number of low- and moderate­income renters—a number that approached 75 percent of all residents. See Presentation by Mark McQueen, City Manager, City of Panama City, Florida; Bankers and Community Partners Forum Focusing on Hurricane Michael Disaster Recovery hosted by the Federal Deposit Insurance Corporation, the Federal Reserve Bank of Atlanta, and the Office of the Comptroller of the Currency (Jan. 29, 2019) (notes on file with author).

See Jarret & Lieberman, “When the Wind Blows,”293, 312 (2007).

See Interview with Christopher Cohilas, Esq., Chairman, County Commission, Dougherty County, GA (June 13, 2019) (notes on file with author).

See, e.g., The Institute for Economic Development and Real Estate Research et. al., An Advisory Report: Housing Market Dynamics in the New Orleans Area (Feb. 15, 2010), 8-9.

Greater New Orleans Community Data Center, Optimizing Blight Strategies: Deploying Limited Resources in Different Neighborhood Housing Markets (2010).

Extremely low-income families earn less than 30 percent of area median income (AMI). Very low-income families earn 30-50 percent of AMI. Low-income families take home 50-80 percent AMI, and moderate-income families earn 80-100 percent of AMI.

In the United States in 2000, approximately 14.5% of Americans lived in single­family attached rentals, including duplexes, triplexes, or quadraplexes. In New Orleans, that number was dramatically higher. Almost 37 percent of families live in small attached single-family units. See, e.g., The Institute for Economic Development and Real Estate Research et. al., An Advisory Report: Housing Market Dynamics in the New Orleans Area (Feb. 15, 2010), 4.

39 Keith Wardrip, Center for Housing Policy Housing Landscape 2011: An Annual Look at the Housing Affordability Challenges of America's Working Households (Feb. 2011), 1.

40 Id. at 7.

41 See American Bar Association (ABA) House of Delegates' Resolution No. 108 (2017), encouraging lawyers to work with “communities to adopt standards, guidance, best practices, regulatory systems, and programs that will make communities more resilient to loss and damage from foreseeable hazards and enhance the disaster resilience of communities.”