Reclaim legislative authority at the local level
by Tim Peck | Mountain Xpress | 12/07/2010
In your article about a Montford homeowner under attack by the city for having “too many people” (Sustainable For Whom, 11/16/2010), Assistant Planning Director Shannon Tuch says, “This is all based on life-safety requirements. When you have eight related people living in a house, there's a head of household...who would act...in the family's best interest to get everybody out. When you have eight unrelated people, it's pretty much every man for himself."
Ms. Tuch's assertion that a head-of-household is more likely to act in his self interest than eight unrelated occupants is simply unfounded. I'm sure Ms. Tuch excels at her government job, but she's a dull sociologist.
Recently, a small fire broke out at Bernard Carman's home—for the first time since taking ownership 22 years ago—inside someone's locked and vacated room. The smell of smoke was detected in minutes by several housemates. Acting quickly and in a coordinated effort, a resident climbed a ladder, entered the window and doused a burning blanket moments from flaming. The house was saved and without fire damage. Four unrelated people acting together effectively mitigated a serious life-safety incident.
I suspect Ms. Tuch is not so interested in the life-safety issues of eight unrelated people living in a spacious and secure home. What she does though is provide a pretext for enforcing North Carolina housing code which precisely defines who can live where in Asheville. A simple inspection of the historic home would satisfy any observer that this residence is adequate, safe and well-maintained.
We need to reclaim legislative authority at the local level. We can determine for ourselves a whole range of civil issues without blanket interference from a distant legislature. The only thing standing in the way of justice in this and many other cases is the lack of home rule.
Bernard Carman is a long-time homeowner in the city of Asheville and has been an active participant in local community affairs for over a decade.
Since 1988, he has owned and lived in a beautiful 3-story, 8-bedroom house in Asheville's Montford Historic District. During those 22 years He has improved the property and rented out rooms to tenants at below market rates, and so far He has not encountered a shortage of poor people to rent rooms to. This affordable housing is now under attack by a city that vigorously promotes affordable housing and even subsidizes it with tax breaks and other incentives.
The reason his home is under attack is that housing regulation mandates that single-family homes cannot be occupied by more than 5 unrelated people. And he is prohibited by zoning code from operating either a boardinghouse or a bed-and-breakfast homestay. The choices he's been given are to either summarily evict 3 people or upgrade the home with expensive safety equipment.
Evicting 3 renters would cost him the lost revenue of about $18,000 a year. He would have to make up the difference himself or significantly raising the rent on the remaining tenants. Absorbing the cost himself would bankrupt him and risk foreclosure on his 22-year investment. Raising rent would mean that 5 renters would be paying for 3 empty rooms and this would certainly put the property outside the definition of affordable housing.
If he decides to continue renting to more than 5 unrelated people, then instead of being subject to residential housing code his home would be subject to commercial code. This would require that an elaborate sprinkler systems be installed, which he estimates would cost around $30,000.
In any case, as long as his property is in violation of housing regulations he is subject to fines of $100 per day until he can prove that it is fully in compliance one way or another. Neither evicting tenants nor installing safety equipment can be done quickly and he has have spent three months so far communicating with city staff on the specifics of my case and seeking remedies as well as exploring and weighing my options for compliance and he could be facing $9,000 worth of fines as of today.
For 22 years he has paid his taxes, improved the neighborhood, increased property values and offered affordable housing to the community. He has harmed no one else and has not risked the safety or well-being of his friends.
Meanwhile, the City of Asheville is combating homelessness and poverty and is offering developers taxpayer-funded subsidies, tax breaks and economic incentives in exchange for building affordable housing in our city.
This is how the City of Asheville is both promoting and destroying affordable housing at the same time.
Any one visiting Bernard's home would find that it is spacious, accommodating, well kept and safe, with modern fixtures, appointments and appliances. There are fire escapes to the top story and fire extinguishers on every floor. The people that live there are friendly and mature and they get along well and look out for each other.
If city staff or a fire marshal were to inspect the property for themselves, this is what they would find. But they would not be able to consult their own judgment and declare the home to be safe, quiet, orderly and no threat to the neighborhood or its occupants.
But North Carolina is not a home rule state and the city must defer to state law in these matters. Legislators in Raleigh determine who can live where in Asheville. The city is only allowed to make housing regulation more restrictive but not less. If we had home rule, lawmakers in Asheville could resolve these problems on a case-by-case basis and, if that were so, I believe Bernard would be allowed to continue offering affordable housing to poor people in Asheville.
1. In Montford, you have two homes next to each other that are very similar in design and structure. The neighbor's property is worth a lot more than Bernard's. Why should Bernard's property be worth substantially less than his neighbor's? The neighbor's property is a Bed and Breakfast. A Bed and Breakfast is going to be worth more than a single-family home because it's been renovated and developed to be commercial income-producing property. Running a Bed and Breakfast is something Bernard has considered in the past. But Bernard cannot convert his single-family home into a Bed and Breakfast because of a zoning ordinance that prohibits two Bed and Breakfast Homestays from being next to each other. According to the Unified Development Ordinance, no two B&B's can be closer than 500 feet from each other. So, while the neighbor can operate a B&B, Bernard cannot. That constitutes a government taking without compensation.
2. Bernard's home was built 100 yeas ago to be an 8-bedroom house. Since Bernard bought the home 22 years ago, it has been housing 8 people in those 8 bedrooms. Along comes a law that prohibits Bernard from housing 8 people. The law says that Bernard can only have 5 people residing in his home. Now he cannot use 3 bedrooms as they were intended and must essentially keep them empty and unused. The house came first, then a law was established that denied Bernard the full use of his property as he saw fit and in a way that harmed no one else. That constitutes a government taking without compensation.
Do North Carolina Local Governments Need Home Rule?
Frayda Bluestein |UNC School of Government | Fall 2006
North Carolina local governments are created by the state and derive all their powers by delegation from it.