Opposes Charlottesville's affordable housing amendment: Letter to Va. General Assembly
January 5, 2006
Dear Members of the General Assembly of Virginia:
Honorables David Toscano (House, 57th) and Creigh Deeds (Senate, 25th)
With humility, I ask that you vote against Charlottesville's proposed Charter Amendment Section 50.7, in its present form as approved by the City Council by 4-1 on November 21, 2005. The complete text of the amendment is attached. The 2006 session of the General Assembly begins January 11.
The proposed amendment would bestow upon city officials eleven new powers. Seven of these relate to seizing or selling property for the exclusive use and ownership of six types: individuals who are low income, moderate income, elderly, or handicapped, and private organizations that are nonprofit or limited profit.
The other powers deal with subsidizing the seizures: grants, loans, rent subsidies, tax deferrals, and tax-exempt city bonds. The final clause grants to each provision the eminent domain authority to bypass due process.
Arguments against the amendment:
(1) The language is overly broad. There is no requirement that a property be blighted, or a danger to public or environmental health, safety, welfare. There need be no drug activity, high crime area, abandoned structures, or fire hazard. The property could be occupied with clear title and paying taxes, or open space. The commercial district could be historic with great cultural significance. The properties under threat are defined only by the need of affordable housing.
(2) The amendment process has been rushed without a full debate. In your legislative packet for approval is also an amendment to approve a switch from appointed to an elected school board. A referendum and three years of public debate support the switch. However, the amendment to expand eminent domain has just appeared.
Amending the city charter should not be so easy. At a minimum, there should be a commission to study the level of housing crisis, how similar efforts have succeeded or failed, the magnitude of eminent domain and its use as a negotiating tool, and whether a private residence justifies eminent domain.
(3) The amendment does not address compensation. Eminent domain requires just compensation determined by a court. The purpose of an eminent domain negotiation is to acquire the property at an unfair discount. Fair market value is not just compensation. The eminent domain price of a property is how much would justify the taking.
For example, if the government wants to take your home for a courthouse as a last resort, that would be one value. But if there are five other possible sites unoccupied and they insist the courthouse must be where you live, then the value would be higher, perhaps higher than your asking price. If your property is seized for the exclusive use of third parties, then the compensation to justify that action would be much higher.
(4) While the amendment requires a Council vote to issue tax-exempt bonds, there’s no such language for acquisition and disposition of property. The amendment appears indirectly to delegate eminent domain power to quasi-governmental, nonprofit agencies.
In Section 14-a of the charter, the Redevelopment and Housing Authority is required to get Council approval for public housing sites acquired through eminent domain. This section was changed in 1973 to prohibit voter referendums on housing projects. Otherwise, the charter relies on state laws to define the process of condemnation.
Arguments for the amendment:
(5) It would violate due process, but more importantly we would be providing subsidized housing for the poor and needy. Besides, it’s used only sparingly. It’s okay to steal if it’s for a good cause and on a small scale. The legal way to take property for exclusive use of third parties is due process, where you are formally charged with a crime or breach of contract. Eminent domain is often preferred because it’s easier to prove public use than to prove a crime has been committed.
(6) The seizure for private residential use would violate the Constitution, but it’s justified because of the war on poverty. When at war, the normal rules don’t apply because we’re fighting for our existence. In the war on terror, the president can suspend civil liberties. In the war on drugs, we can relax the rules for searches. In the war on poverty, we can make flexible the due process protection that your real property not be seized for private use, except after a fair trial.
If I oppose this amendment, then I oppose helping people. On the contrary, I strongly support assistance that is given and received voluntarily. I oppose committing crimes and calling that a good deed. When this section is invoked, that’s when we’ll learn what properties were unavailable or too expensive for the affordable housing charities to purchase legally.
To bring the charter amendment in compliance with the Fifth Amendment of the U.S. Constitution, I propose that Provision 12 be rewritten as follows:
12(a) None of the provisions in this section shall be construed to carry the force of public use.
(b) Any agent or agency acting hereunder, which acquires or receives property through eminent domain or employs eminent domain as a negotiating tool, shall be subject to prosecution for theft or fraud.
Such language would be the first limitation in Charlottesville on the excessive use of eminent domain to seize property for exclusive private uses since the practice was approved in 1954. I ask that members of the Virginia General Assembly reject Charlottesville Charter Amendment Section 50.7.
PROPOSED CHARTER AMENDMENT FOR CHARLOTTESVILLE, VIRGINIA
(November 21, 2005)
Sec. 50.7. Powers relating to housing and community development.
In addition to the powers granted by other sections of this charter and any other provision of law, the city shall have the power:
(a) To acquire land or buildings in the city for the purpose of providing housing for low or moderate income persons or for elderly or handicapped persons;
 to rehabilitate and dispose of any such land and buildings by lease or sale to low or moderate income persons or elderly or handicapped persons;
 to dispose of such land and buildings by lease or sale to any nonprofit or limited profit organization which has as a principal purpose the provision or development of housing for low or moderate income persons or elderly or handicapped persons;
 to construct residential buildings in the city for lease or sale to low or moderate income persons or elderly or handicapped persons, or for lease or sale to a nonprofit or limited profit organization which has as its principal purpose the provision or development of housing for low or moderate income persons, or elderly or handicapped persons;
 to make grants and loans of funds to low or moderate income persons to aid in the purchase of any land or building in the city including, but not limited to, land and buildings which have been rehabilitated by the city or by a nonprofit or limited profit organization which has its principal purpose the development of housing for low or moderate income persons;
 and to offer real estate tax deferrals to low or moderate income persons who own any land or buildings described herein.
(b) To make grants of funds to owners of dwellings or dwelling units in the city for the purpose of subsidizing, in part, the rental payments due and owing to any such owner by a low or moderate income person;
 to acquire any dwellings or dwelling units in the city for the purpose of providing housing to low or moderate income persons, and to dispose of such dwellings or dwelling units, by sale or lease, to low or moderate income persons or to a nonprofit organization or limited profit organization which has as its principal purpose the provision or development of housing for low or moderate income persons;
 to make grants and loans of funds to low and moderate income persons to aid in the purchase of dwellings or dwelling units in the city;
 and to offer real estate tax deferrals to low or moderate income persons who own a dwelling acquired from the city, a nonprofit organization or a limited profit organization under a program established hereunder.
(c) To issue tax-exempt bonds for the acquisition, rehabilitation and provision of housing for low or moderate income persons; provided, that prior to any action authorizing the issuance of such bonds, the city council finds affirmatively that such action is necessary to provide an adequate supply of such housing in the city.
For purposes of this section, the phrase, "low or moderate income persons" shall have the same meaning as the phrase "persons and families of low and moderate income," as that phrased is used in the Virginia Housing Development Authority Act, and shall be applied using the income guidelines issued by the Virginia Housing Development Authority for use in its single family mortgage loan program.
In addition to being able to exercise the above-mentioned powers with city funds, the city is authorized to participate in any state or federal program related thereto and to use state, federal or private funds in the exercise of such powers.
 The exercise of any of the powers granted in this section is hereby declared to be a public purpose and public use
(End of amendment)