Charlottesville's affordable housing amendment is amended: Officials back off eminent domain

At the City Council meeting on November 21, right after the public hearing on the elected school board, 4 of the 5 councilors approved a city charter amendment to address the affordable housing emergency.

That morning, the Daily Progress had a promotional story on the legislative item. Only today did readers learn that the proposed amendment had actually been passed. And then, only by inference. Councilors Blake Caravati, Kendra Hamilton, David Brown, and Kevin Lynch voted for the amendment. Rob Schilling cast a vote against the amendment.

"Opposes Charlottesville's affordable housing amendment: Letter to Va. General Assembly" Jan. 5, 2006 Includes text of amendment Sec. 50.7.

Activities in the state Senate:

SB 202 Charter; City of Charlottesville. R. Creigh Deeds (all patrons)
Summary as introduced:Charter; City of Charlottesville.

Grants new powers to the city for the purpose of providing housing for low or moderate income persons or for elderly or handicapped persons.

Full text:01/10/06
Senate: Prefiled and ordered printed; offered 01/11/06

Amendments:

Senate amendments
1. The city shall offer private lending institutions the opportunity to participate in local loan programs established pursuant to this subsection.
2. The city shall not exercise the power of eminent domain pursuant to any power granted in this section.

Status:01/10/06 Senate:
Prefiled and ordered printed; offered 01/11/06

01/10/06 Senate:
Referred to Committee on Local Government01/17/06 Senate: Reported from Local Government with amendments (13-Y 1-N)
http://leg1.state.va.us/cgi-bin/legp504.exe?061+ful+SB202

In the House of Delegates:

HB 998 Charter; City of Charlottesville. David J. Toscano (all patrons)
Summary as introduced:Charter; City of Charlottesville. Grants new powers to the city for the purpose of providing housing for low or moderate income persons or for elderly or handicapped persons.

Full text:01/11/06 House:
Prefiled and ordered printed; offered 01/11/06 065461525

Status:01/11/06
House: Prefiled and ordered printed; offered 01/11/06 06546152501/11/06 House:
Referred to Committee on Counties, Cities and Towns
http://leg1.state.va.us/cgi-bin/legp504.exe?061+sum+HB998

"City's home loan bill passes committee"

By Bob Gibson, Daily Progress staff writer, January 18, 2006

RICHMOND - A bill to allow Charlottesville to create loan and grant programs to help low- or moderate-income residents buy a home scraped through a Senate subcommittee Tuesday. Hours later, the bill sailed through a full committee after it was amended to ensure the city would not be taking property through eminent domain.

Sen. R. Creigh Deeds, D-Bath County, said his measure is a charter bill requested by the city. It was amended twice in the Senate Committee on Local Government.

Deeds' Senate Bill 202 limped into the full committee on a 3-2 vote Tuesday morning from a subcommittee chaired by Sen. Emmett W. Hanger Jr., R-Mount Solon.

The full committee endorsed the bill on a 13-1 vote hours later after Hanger supported it and helped amend the measure. The bill is intended to give Charlottesville some powers in its city charter to deal with affordable housing problems using tools Alexandria already has.

"Some of my colleagues never want to emulate the city of Alexandria," Hanger said of some fellow Republicans who view Alexandria - and Charlottesville - as small urban hotbeds of liberalism with political atmospheres that should be neither encouraged nor enhanced.

Hanger said Charlottesville wants to try some "creative things to ameliorate the high cost of housing."
"The issues are apparent to anyone who is in the Charlottesville market," Deeds said. "It helped to have Emmett Hanger as chairman of that subcommittee because while he might not have been inclined to support it he's been to enough meetings in the city and Albemarle County that he understands the problem."

After its scrape with death in subcommittee, "the bill got stronger," Deeds said. "The amendments today frankly make the bill better by ensuring that eminent domain is not a tool that is going to be used and also by ensuring that private sector lending institutions have a chance to compete" in the city's loan programs.
Del. David J. Toscano, D-Charlottesville, said he would amend his identical House bill to include the strengthening amendments.

"I think the amendments clarified what the city wanted initially, which was not to have an ability to condemn property," Toscano said.

"The city needs a lot more flexibility in dealing with a problem that is not totally unique to the city but is more apparent in Charlottesville than perhaps other places," he said. "I think [the City Council is] going to try to create some more flexible loan programs and some more flexible grant programs" to assist in making owning a home more affordable.

City Councilor Blake Caravati traveled to Richmond to support the bill and said he is gratified by its approval in the Senate committee.

"I believe personally that we are approaching a crisis in affordable housing," he said. "We do not want the power of eminent domain" for these programs.

Caravati said police officers and teachers who make just more than $30,000 a year could become eligible for low-interest loans or grants if the council is granted the authority to create such programs.

Affordable housing programs could help the city recruit police and firefighters as well as teachers and others in service jobs, Caravati said.

"We need to move families out of poverty," he said. "It is intended for people with low to moderate incomes."

As bills to amend the city charter, the Deeds and Toscano measures must pass each chamber by two-thirds majorities. Neither legislator said he is certain of approval in the GOP-controlled House of Delegates.

The Daily Progress


"City mulls housing autonomy: Council wants affordable living programs"

By John Yellig, Daily Progress staff writer, November 21, 2005

Requiring developers to dedicate a portion of their projects to affordable housing isn't legal in Virginia, so the Charlottesville City Council is going to ask the General Assembly to amend the city charter to give it greater authority in creating its own affordable housing programs. The charter amendment would open several new avenues to the council in its attempts to make housing more affordable. The council will hold a public hearing on a resolution to seek the charter amendment at its meeting tonight.

If the General Assembly passed the amendment, for example, the council could choose to set up a fund from which it could help low-income homeowners pay their property taxes. Or it could make grants to individuals to help them pay for a home.

An affordable-housing task force last year recommended the city require developers to devote at least 15 percent of developments larger than 10 units to affordable housing or make a monetary contribution to a city housing fund.

But a circuit court judge later ruled Arlington County doesn't have the authority to enact similar guidelines, so Charlottesville's proposal was scrapped.

"Certainly council hasn't given up hope for the ? authority, but that's not on the table at the moment," Deputy City Attorney Lisa Robertson Kelley said. "This charter amendment would allow the city to undertake certain things itself to promote affordable housing."

The amendment would allow the council to set up a housing fund, but it could not make contributions to it mandatory.

Developers seeking zoning changes could offer to contribute to the fund in exchange for concessions. Currently they must give to non-governmental organizations such as the Piedmont Housing Alliance.
"It just gives us another way to help negotiate," Councilor Blake Caravati said.

While the amendment, if passed, wouldn't give the council all the tools it wants, something is better than nothing to Caravati.

"We've been talking about this a long time," he said, referring to the dearth of affordable housing in the city. "It's a huge problem for us. It's going to be an even worse problem if the real-estate boom keeps going on."

TheDaily Progress

Other stories on local politics:

"Following an emotional exchange Monday night, the Charlottesville City Council closed the door on the possibility of ward-based School Board elections in May."
"Council conflict decides election" Nov. 22, 2005

"At Thursday's work session at City Hall, a packed house listened as councilors discussed how to proceed with the project, which has been in the works for four years."
"Jefferson School joins Va. register" Dec. 8, 2005

"Caravati nixes re-election bid: Norris, Taliaferro plan to run" Jan. 10, 2006

"Julian Taliaferro, who recently retired as city fire chief after 33 years, will soon join Norris on the campaign trail. Taliaferro, who will seek to join Norris on the Democratic ticket, said he would formally announce his campaign soon. The Democratic Party convention is set for March 5."
"Norris runs for council" Jan. 12, 2006

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.

Conclusion:

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.

Sincerely,
Blair Hawkins
Charlottesville, Virginia
healingcharlottesville@yahoo.com


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)[1] 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;

[2] 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;

[3] 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;

[4] 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;

[5] 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;

[6] and to offer real estate tax deferrals to low or moderate income persons who own any land or buildings described herein.

(b)[7] 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;

[8] 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;

[9] 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;

[10] 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)[11] 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.

[12] 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)