Thursday, February 3, 2011

NC Rules Defying Common Sense Wage War on Affordable Housing

Dear Gov. Perdue,

I was moved to write you upon reading your "Setting Government Straight" webpage, especially the page devoted to Regulation Reform on which you said:

"Today, I'm asking North Carolinians to tell me what you would do to set government straight. Tell me about rules that defy common sense — rules that hinder job creation — slow progress — or hurt local governments or schools. I can promise — North Carolina will listen to you."

I wish to share with you that various current state and local laws are working together to prohibit homeowners from offering affordable housing in Asheville, and in NC at large.  As a result, less affordable housing is available and also many homeowners now face foreclosure and bankruptcy.

Simple legislative reforms can offer solutions which would prevent unnecessary hardships levied upon thousands of North Carolinians.

Home Rule Prohibited in NC

The fundamental problem is regarding the lack of home rule among NC municipalities.  While other states allow municipalities to make decisions and allowances regarding state building codes and regulations at the local level, NC is apparently one which does not.

The prohibition of home rule prevents municipalities from assessing on a case-by-case basis, dwellings and buildings which simply do not fit into the "one-size-fits-all" NC building regulations.  This is causing major hardships among NC residents who are already struggling to make ends meet in our nation's faltering economy.

It's burdensome enough when residents within a municipality must contend with unreasonable, arbitrary, and oppressive legislation passed by previous councils, but it's deplorable when residents must also face the same with State legislation as well.  

Home rule would at least provide some level of reasonable recourse for North Carolinians.

War on Affordable Housing — Asheville, NC

As of Dec 1, 2010, I currently face major hardships as a result of rules which defy common sense — and I am not alone.

One would think it to be a matter of common sense that an historic eight-bedroom home might be used to provide affordable housing for eight individual adults, regardless of relation.  However, the combination of both NC State and City of Asheville regulations and ordinances are prohibiting homeowners of such historic homes from doing just that.

As a result, many now face severe financial hardships.  Even Asheville's Development and Planning Department informed me that they "see this sort of thing all the time", but their hands are often tied to NC State bureaucracy which prohibits home rule.

In my situation, due to changes throughout the years in both the NC building code and Asheville City ordinances, as of Dec 1, 2010, I have been forced to evict three people from my eight-bedroom historic home.  Therefore, I now face financial hardships in continuing to pay my mortgage, taxes, and bills.

Although I've been living in my house for 22 years, causing no hardships to neighbors, acting in good faith using my home as what the city defines as a "boardinghouse", the City of Asheville does not consider me to be grandfathered simply because I was not aware I had to have a "permit" to use all eight bedrooms of my house.

When I purchased my home in 1988, using it as such was permitted in my zoned area.  However about a decade later, that right was taken from me, along with my right to operate as a B&B and/or sell to an interested buyer as such.  Yet, not only have I not been compensated for either "taking", I am now prohibited from continuing operating as I have since.  With regard to the legal precedent of "Use by Right", my home's use has not changed since I've owned it — the state and municipal regulations have.

Although I have respectfully petitioned the City of Asheville for a stay of unreasonable fines until the matter could be addressed by both city and state legislatures, I was told there was no recourse other than compliance.

Therefore, under threat of massive fines of $100/day to be imposed upon me by the City of Asheville, I was given only two cost-prohibitive and unreasonable options for compliance:

1. Reduce my occupancy to five, thus, complying with NC Building Code with regard to "Family";

2. Comply with the recently altered 2006 NC commercial code, which now mandates cost-prohibitive and entirely unnecessary fire sprinkler systems, previously only required for places of public assembly.

I was forced to choose option 1, which is currently damaging me to the amount of $1500 per month.  And, of course, this says nothing about the psychological suffering I have endured over the past several months while contemplating two impossible compliance alternatives and facing insurmountable financial penalties.

Again, I'm not the only person facing such hardships as potential foreclosure and utter financial ruin — all resulting entirely from NC State and City rules which defy common sense.

Specific Rules Which Defy Common Sense

This matter began in late July, 2010.  Since that time, I have respectfully requested that my home be assessed for potential safety needs beyond the existing top-story fire escape, extinguishers and smoke alarms, and/or for potential neighborhood needs beyond the existing 100% off-street parking, well-maintained grounds and community harmony.  However, I was told by city officials that they were merely enforcing city and state codes and that these issues were not relevant.

Therefore, it quickly became apparent that this entire matter was not about ensuring safety, nor about maintaining neighborhood peace, but rather about enforcing arbitrary codes as a matter of standard policy.  The lack of home rule in NC prohibited the City of Asheville from providing me with a simple reasonable recourse in this case.

Upon my investigating this matter further, I discovered many rules which defy common sense:

City of Asheville
 • In 1988, my property was zoned R3 (1977 Zoning Ordinance), at which time both B&B's and boardinghouses were permitted.
 • In 1997, the Unified Development Ordinance (UDO) was adopted by Asheville City Council, in which several zoning districts were added.  R3 became RS-8, by which boardinghouses became prohibited.
 • Also in 1997 within the UDO, the boardinghouse definition was changed from, "A building other than a hotel, where lodging or meals or both are served for compensation," to a paragraph which begins with the sentence, "Boardinghouse means an establishment which provides lodging for compensation to five or more tenants."  This change makes pretty much any home providing housing to five or more individuals a "boardinghouse", which contradicts the traditional definition of a "boardinghouse" which has always included both room and board (food).  [reference: Asheville Code of Ordinances; Chapter 7 Development; ARTICLE II.  OFFICIAL MAP, RULES OF CONSTRUCTION, AND DEFINITIONS; Sec. 7-2-5.  Definitions.]
 • Around 1998, the UDO was updated whereby B&B's became subject to a 500' proximity restriction.  Those properties which had been previously B&B permit-able were no longer, thus, a "taking" had occurred en masse across the entire City of Asheville by simply adding a couple lines of text to this newly adopted UDO.
 • The UDO also currently prohibits the use of office space in a "single-family" home for non-residents.

State of North Carolina
 • NC Residential Code defines "Family" as an individual; two or more persons related by blood, marriage or law; or a group of not more than any five persons living together in a dwelling unit.  Therefore, every "single-family" home in NC is prohibited from housing more than this arbitrary number of five unrelated adult individuals.
 • As of 2006, the NC building code mandates that all single-family homes with more than five unrelated occupants must conform to commercial code requiring installation of cost-prohibitive sprinkler systems, previously only mandated in such places as those used for public assembly.
 • NC State building regulations supersede municipal codes, therefore, prohibit home rule.  Unlike in other states, NC municipalities are permitted to tighten restrictions but not loosen any of them, even when common sense would dictate otherwise.

Such rules which defy common sense are now preventing myself and many others from actually using rooms within their homes for the purpose for which they were built and intended.

Remedies for Rules Which Defy Common Sense

Legislative remedies are needed immediately from city and state government:

City of Asheville
• Repeal ordinances which circumvent "use by right" according to zoning district, like B&B proximity restrictions and boardinghouse prohibitions.  (The term ‘Use by Right’ refers to a property owner’s use of property and structures in manners consistent with that which is listed as permissible in the zoning district in which his or her property is located. - NC State University)
• Honor the legal precedent for actual property usage as grounds for grandfathering, not merely by permit.
• Repeal the 1997 UDO prohibition of boardinghouses within single-family zoning districts.
• Adopt a traditional definition for "boardinghouse", such as: "Boardinghouse means an establishment which provides lodging and food to guests for compensation."

State of North Carolina
 • Allow home rule: Adopt a "Non-Conforming Pre-Existing" clause, and/or permit property evaluation by a municipality.
 • Repeal the arbitrary definition of "family" being limited to 5 unrelated people.  Consider building safety relative to building design, rather than the personal relation of occupants.
 • Repeal mandatory sprinkler systems in the commercial code, in favor of a discretionary requirement.

Community Attention

Especially due to the ongoing lack of affordable housing here, this issue continues to attract attention in the Asheville community.

The City of Asheville is even now moving forward with using public funding — our taxes — to subsidize new affordable housing, while simultaneously evicting people in perfectly fine old affordable housing!  What happened to "go green"?  Further, this is like pouring salt in the wounds of all those facing a similar situation as mine, who have been providing affordable housing for decades and doing so without such government assistance.

The overall community response has been overwhelmingly sympathetic, with varying reactions of many who are perplexed by the lack of common sense found within the city and state regulations at best, and outraged by the obvious hypocrisy of the stated goals of the legislature at worst.

Local media articles thus far include:

Sustainable for whom? -- Mountain Xpress

(no longer available at AC-T online)

Letters, blogs, and one cartoon:

Localism in Asheville a hoax? -- Mountain Xpress Op Ed

Satirical Cartoon -- Mountain Xpress Cartoons

The Home Rule Imperative

Governor Perdue, you said, "I can promise — North Carolina will listen to you."

But more so than listening Governor, will you also promise to seek remedy now for these particular rules which defy common sense?

Although I strongly believe my local public servants are in error, the City of Asheville maintains that it cannot do anything to remedy my situation until/unless the NC Legislature either alters these specific building regulations or allows for home rule.

As a result, many North Carolinians now currently face serious financial hardships and we cannot wait long for remedy — we need home rule now.

Here is a detailed article regarding home rule you might consider reading:  "Do North Carolina Local Governments Need Home Rule?"  By Frayda Bluestein, UNC School of Government, Fall 2006.

However, if home rule continues to be prohibited in NC, perhaps all those negatively affected as a result should demand that the State of NC and the their municipality make remedy for all financial damages incurred due to these rules which defy common sense, while this age of subsidized new affordable housing begins.

I look forward to hearing your thoughts on this matter, and how you might plan to address it with the NC legislature.  In the meantime, I will strive to educate the public, build community support, and pursue available defensive legal remedies.


Bernard Baruch Carman