A right-leaning disgruntled Republican comments on the news of the day and any other thing he damn-well pleases.
by Joey Garrison , USA Today Network - Tennessee - Middle Tennessee’s leading anti-tax crusader has launched a
petition effort to add a referendum to the November 2018 ballot that
would let Nashville voters decide whether to limit Metro’s borrowing
capacity by capping the city's debt level.
If the measure passes, it could complicate plans for a $6 billion regional transit system that Mayor Megan Barry wants to start funding.
The debt limit referendum, led by Nashville Tea Party President Ben Cunningham, a resident of Sumner County, would amend the Metro Charter in two ways: (read more)
by Joey Garrison , USA Today Network - Tennessee -Metro Nashville was hit with a highly anticipated lawsuit on Monday by
the free market think-tank Beacon Center of Tennessee over a new Metro
policy that is aimed at jump-starting more affordable housing.
"We are filing this lawsuit not just because we disagree with this 'affordable housing' plan, but because Nashville is acting unconstitutionally and in defiance of state law," Braden Boucek, director of litigation for the Beacon Center, said.
"Tennessee has expressly told cities they cannot pass these sorts of laws, which makes Nashville's mandate on 'affordable housing' both illegal and unconstitutional. Cities are not independent and cannot pick and choose what laws they want to follow."
But supporters of the ordinance, including bill sponsor Councilwoman Burkley Allen, have argued that the policy is a voluntary inclusionary zoning policy based on development incentives and not a mandate because the requirement is only triggered when a developer chooses to apply for new development rights. (link)
The below story is Reposted from The Beacon Center.
Imagine being a young, hardworking professional who can already barely afford to pay rent in the city where you are just beginning your career. Next, imagine that your landlord raises your rent so that a person even poorer than you can afford to move in next door and pay less. Now you will have to move further away from your job and live somewhere less desirable because you can no longer afford your rent.
Are you mad? You should be. This is just one of the many unfair scenarios that Nashville’s leaders are about to bring into being thanks to their unconstitutional “affordable” housing plans. When Nashville government officials decided housing wasn’t affordable enough, they decided that homebuilders should solve the problem instead of government. Nashville recently enacted a law that, in certain instances, requires homebuilders to sell a fixed percentage of the homes they build at below market value. In other words, Nashville is demanding that people lose money on an investment in order to promote social welfare. Ironically enough, the people that Nashville thinks should bear the cost of addressing affordable housing—homebuilders—are the very ones who are most directly addressing the problem in the first place.
Homebuilders, like the thousands of small business owners and individuals our client the Homebuilders Association of Middle Tennessee (HBAMT) represents, increase the supply of housing, thereby lowering the cost of housing. The homebuilders want nothing more than to address any affordable housing issues by increasing the supply of housing. The biggest obstacles are Nashville’s restrictions on their ability to build homes, obstacles which increase with Nashville’s new “affordable housing” mandate. John Sheley, the trade organization’s Executive Vice President, has worked in his field for nearly 30 years and decided to take action on behalf of all builders to challenge Nashville’s new law.
And for good reason. This plan is illegal and unconstitutional, as it demands that private individuals bear the burden of addressing what some have decided is a public concern. It is no more acceptable to expect property owners to address public housing by losing money on the houses they build than it is to expect grocers to lose money on the food they sell to address hunger. If there truly is a lack of affordable housing in Nashville, then the government should get out of the way and let the free market and the builders solve it naturally by creating a larger supply. But they should not force private parties to do it on their behalf. Their current plan will make housing more scarce and decrease the availability of affordable housing. This is fundamental to the constitutional protection of private property rights. What’s more, it is also illegal because the state of Tennessee has a law that bans local governments from passing mandates forcing homebuilders to set aside residential apartment units as “affordable.”
In September 2016, the city of Nashville passed a law that, with limited exceptions, requires homebuilders to set aside a portion of their development as “affordable” or “workforce” housing or instead pay a significant fee into a slush fund. As anyone who has been paying attention knows, a government program that begins with the term affordable is typically anything but. Need proof? Look no further than the Affordable Care Act, or Obamacare. That redistribution of wealth scheme has left working-class Americans with astronomically higher prices and fewer health insurance options, all in exchange for a worthless guarantee that it will be more “affordable.”
“Affordable” housing is essentially the Obamacare of housing. It makes it more expensive to build. This will result in developers building fewer homes, which will cause housing supply to dwindle. The extra costs will be passed on to buyers and renters, increasing their expenses. In both scenarios, it will cause prices to rise for those who can afford it the least: lower- and middle-income earners. If you think housing is expensive now, just wait until it’s “affordable.”
Not only will this mandate make housing less affordable, it will also create the same fiscal cliffs as many other welfare programs. If a person will have to pay more for their housing as their income increases, then they will be less likely to pursue moderate increases in pay or take on more work to move up in life. This scheme by Nashville’s government creates a disincentive for the poor to improve their lives.
A requirement that property owners set aside a certain percentage of their housing inventory to sell at below the market price (or setting price controls at all) is more than just inconsistent with the American tradition and offensive to rudimentary notions of free markets. Forcing developers to sell the apartments they build at a loss poses very serious legal and constitutional problems. Governments can’t condition things like building permits on the surrender of constitutional rights, such as the right to seek full value of one’s private property. Taking private property for a public purpose without just compensation is a takings issue that courts have ruled to be unconstitutional countless times. Cities can’t get around that by conditioning their agreement on the surrender of this or any other constitutional right.
On top of the constitutional and economic issues with this law, Nashville does not have the authority to enforce this plan in the first place. The state has never given cities the power to address affordable housing in this manner, and if there was any lingering confusion on this issue, the Tennessee General Assembly cleared it up in 2016 when affordable housing mandates began to surface in Tennessee. In response to the spread of these ordinances, the legislature passed a law prohibiting local governments from enacting affordable housing mandates as they relate to rental properties. Nashville passed its law anyway, even though it is illegal under state law.
The matter has already garnered a good deal of local media attention, as it should. And, given the spread of similar ordinances across the southeast (including an anticipated ordinance in Atlanta sometime next year), this trend of liberal cities thwarting constitutional protections set by state governments will only continue to worsen.
Bad policies that take hold in cities such as Nashville have a tendency to spread throughout the state. Nashville is blatantly disrespecting state lawmakers (and thereby the will of the people) who already voted to ban this practice. If Nashville can pass an affordable housing law in defiance of state law, then it can pass a $15 minimum wage law or a gun ban. We don’t want our cities to become sanctuary cities for liberal policies, therefore Nashville needs to be reigned in here and now.
In late July 2016, before the proposed ordinance was brought up for a second of three readings before the Metro Nashville Council, the Southeastern Legal Foundation and Beacon sent a letter to city officials analyzing the proposed ordinance from a legal perspective. We explained that the proposed ordinance not only violated state law, but that it was patently unconstitutional. The letter was raised by the Metro Council’s attorney and discussed in the hearing. The Council passed the ordinance anyway. Their willful disregard for the rule of law proves that, in this situation, the only way to protect the Constitution is in the courtroom.
It is now imperative that we take action to protect the property rights of Tennesseans and their values from out-of-control local governments.
We intend to challenge Nashville’s affordable housing mandate as illegal under Tennessee law and unconstitutional in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.
The Ordinance Violates the Fifth Amendment.
The Takings Clause prohibits the government from taking one’s property without just compensation. Here, Nashville is not “taking” the developers property outright, it is demanding that they lose money in exchange for the city’s permission to develop, and if they do not want to do that, they can just kick into a slush fund to avoid the mandate. The courts have recognized these sorts of shenanigans before and have stated that a demand for a person to surrender a right in exchange for a permit is still an unconstitutional taking.
The Takings Clause exists because the Founders did not envision a country where governments could strong-arm private parties into paying for things the government did not care to pay for itself. The Supreme Court has made clear that the Fifth Amendment not only protects one from a physical taking, but also from governments that misuse the power of land-use regulation.
To prevent governments from circumventing the Takings Clause and from trying to accomplish indirectly what they cannot do directly, the Supreme Court applies the “unconstitutional conditions doctrine.” Under this well-settled doctrine, “the government may not require a person to give up a constitutional right…in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.” In other words, the Takings Clause prohibits Nashville from forcing homebuilders to choose between the permission they need to build and the right to receive just compensation from a taking. This “affordable housing” mandate is a prime example of the “gimmickry” that the Supreme Court so harshly rejected over two decades ago.
The Ordinance Violates Tennessee Law
The law passed in 2016 by the Tennessee legislature prohibiting local governments from enacting affordable housing mandates took direct aim at measures such as the one presented in this ordinance. Despite Nashville officials’ statements otherwise, the ordinance is not an incentive-based approach, which would be allowed under the new state law. The ordinance requires property owners comply as long as financial incentives are available. But when the incentives are available, not when they are provided to the property owner, the property owner must comply. The property owner has no ability to opt out.
The way Nashville’s zoning is currently structured, there is almost no place left to build. So homebuilders almost always have to ask the city to rezone the land to allow for buildings of a greater height or density before a project can go forward. And the city will not allow any changes (and thus will deny permission to build) unless homebuilders agree to its onerous demand that they address affordable housing by losing money on some of their homes. By requiring homebuilders to do so before Nashville will give them the permission they need to build, Nashville has imposed a kind of a condition on development. That’s exactly the sort of law that the state of Tennessee has said is illegal.
Due to the aforementioned reasons, the Beacon Center is filing a lawsuit against the city of Nashville and seeking an overturning of the city’s “affordable” housing mandate.
The plaintiff in this case is John Shely with the Home Builders Association of Middle Tennessee. They are seeking clarification on the law and the overturning of Nashville’s affordable housing mandate. The defendant is the Nashville Metro Government.
The Legal Team
Braden Boucek is the Director of Litigation for the Beacon Center. Prior to joining the Beacon Center, he worked as an Assistant United States Attorney, and before that for the State of Tennessee as a trial and appellate prosecutor.
Justin Owen is the president and CEO of the Beacon Center and is licensed to practice law in Tennessee.
The Beacon Center will work this case in conjunction with Southeastern Legal Foundation in Atlanta, one of the most established and well respected free market litigation groups in the nation. SLF will be represented by Kimberly Hermann, General Counsel for SLF. Prior to working for SLF, she was in private practice and an accountant for an international accounting firm.
I did not support the recently passed gas tax, officially called the Improve Act. I do not necessarily think that only gas taxes should fund roads. My view is that when an agency has their own source of funding, there is less scrutiny and oversight to insure the agency is not wasting money. I tend to think all funding should be decided by the legislative body and every government function should compete with every other government function. I would be pleased if there were no dedicated funding.
I was not persuaded by the argument that the gas tax is a user fee. In theory I like the idea of "user fees" for government services, but in reality there are few true user fees. If you had to pay admission to use a park, that would be user fee. If you had to buy a membership to use the public library, that would be a user fee. A toll road is a user fee. A tax on tennis shoes to fund sidewalks or a gas tax to fund roads is really not a user fee.
I was also reluctant to favor the gas tax, because in the past TDOT has wasted a lot of money. Untold million were spend over the last forty of so years connecting every county seat to an interstate by a four-lane road. I have driven on some of these roads to nowhere and often been the only car on the road for miles. For more on why I think this was a wasteful and ill-advised policy see this link where I expound on it.
Also, TDOT wasting of money is not a thing of the past. In 2013 over $42 million of the gas tax went to building a luxury jet port for the city of Cleveland. I don't know how many bridges could have been repaired for $42 million but with crumbling bridges it seems to spend $42 on a luxury jet port looks like an unwise use of money.
On the other hand, now that I have told you why I did not support the gas tax, let me say that I could not build up much passion about the issue. In fact, on several occasions I was almost persuaded to favor it. This was not something I was going to man the barricades over or even march against. There were good arguments in favor. Things we want cost money and the gas tax has not been increased in 25 years. I believe the argument that the gas tax has not been keeping up with the rising cost of building and maintaining Tennessee’s roads and bridges and that improved fuel efficiency standards and the rise of hybrid and electric cars are hurting gas tax collection. Also, we have capacity to raise the gas tax since we were one of the states with a lower gas tax. There is a big backlog of projects that need funding and we need the revenue.
Also, the increase in the gas tax is being offset by cuts in other taxes. It is basically revenue neutral. The bill reduces the 5-percent Hall income tax by 1 percent each year until the tax is eliminated. It reduces the state sales tax rate for food from 5 percent to 4 percent and it makes some cuts to other taxes paid by manufacturers. I liked the tax cuts that were in the bill. For a summary of what the bill actually does see the legislative summary or read the bill at this link.
Grover Norquist, founder of Americans for Tax Reform (ATR), who has campaigned for lower taxes for decades declared his support for the IMPROVE Act. Norquist is the originator of the "tax pledge" in which candidates for office sign a pledge saying they will not vote for any tax increase. Norquist said the bill was revenue-neutral.
I am disappointment at the vitriolic rhetoric being used to denounce those who voted for the bill. To me, this is an issue about which reasonable and good people could disagree. I an disappointed in those who condemn those who voted for the tax as evil. I don't know how either side could be so dogmatic as to be assured that their position is 100% right and the other side totally wrong.
John Harris of the Tennessee Firearms Associations has been in rant mode for days now. In a Facebook post he said, "Hard working Tennesseans are getting really tired of the ongoing lies and corporate welfare from the Establishment Republicans in Tennessee. We have to have the help of the conservative caucus to expose these traitors so that they can be prosecuted where possible and defeated in all other instances." He is not calling them traitors to their country but as he uses the term in another post, he is calling them traitors to conservative principals.
Harris has been especially critical of Representative Susan Lynn and has called for her defeat when she is up for reelection. Harris is only one of the people expressing anger at those who voted for the bill. Many other conservative activist are also denouncing those who voted for the bill and calling them names and calling for their defeat.
I think a lot of the outrage is faux outrage and motivated by something other than the issue at hand. Advocacy organizations have to keep their supporters riled up to remain influential. Getting people mad at other people is good for fund-raising. Some people with political ambitions need to distinguish themselves from the incumbent office holders and issues like this create an impression on the part of some of the electorate that the incumbent is not conservative enough or is a RINO or is part of the political establishment. It gives the challenger an excuse to enter a primary. Pundits and commentators do not build an audience by being reasonable and thoughtful. You will not hear Rush Limbaugh or Mark Levin or Rachel Maddow or Michael Moore say "on the other hand." Pundits and advocates always have to be adamant and indignant. Its good for ratings and business.
To those who opposed the gas tax bill, do you really think that people like Senator Jack Johnson and Representative Susan Lynn are big-government, tax-and-spend liberals who are traitors to conservative principals who need to be defeated?