On July 15, 2013, the Barrington Town Council received from the Town Solicitor, Ursillo Teitz & Ritch, answers to questions on affordable housing that were previously submitted by a concerned resident. One of the questions was: “The public is uncertain as to what the 10% deed restriction mandate means when applied by elected officials to make the case for local compliance. We hear that there's a mandate...what is the specific citation/language for this position? Is the 10% deed restriction mandate a narrow interpretation of governing law?”
A thoughtful “all sides” answer to this question was not only warranted, but vitally important to all town residents. The answer from the Ursillo Teitz & Ritch law firm appears to be limited with just enough appearance of “absoluteness” to give cover to one side of the argument. Assistant Solicitor Andrew Teitz delivered the opinion in the July 15, 2013 Town Council meeting.
There are many, many things that Assistant Solicitor Teitz didn’t consider or tell the Town Council, including that the citation he relied upon in the opinion letter had nothing to do with establishing whether the 10% affordable housing is a production “mandate” or a production “goal” under the Low and Moderate Income Housing Act.
Mr Teitz’s citation originates from the Definitions Section of the Low and Moderate Income Housing Act (Act) under Section 45-53-3(4)(i). The complete and exact text found under Section 45-53-3(4)(i) reads as follows: “Low or moderate income housing exists which is: (A) in the case of an urban city or town which has at least 5,000 occupied year-round rental units and the units, as reported in the latest decennial census of the city or town, comprise twenty-five percent (25%) or more of the year-round housing units, is in excess of fifteen percent (15%) of the total occupied year-round rental units; or (B) in the case of all other cities or towns, is in excess of ten percent (10%) of the year-round housing units reported in the census.
The citation simply states when “[l]ow or moderate income housing exists”, not whether the 10% production level is a "mandate" on any town under pain of penalty and prosecution. Barrington's own written affordable housing Town Ordinances also state a production "goal", not a production "mandate".
Relevant also is that two weeks earlier, the Town Council was promised a review of the impact of the recent US Supreme Court property rights decision in Koontz vs. St Johns River Water Management District, as it may apply to the state affordable housing initiatives.
In the Koontz decision, there also existed good state legislation under a Water Resources Act, a Florida State Supreme Court decision in the matter, and state agencies charged with the responsibility for implementing the good requirements of the Act. But writing for the US Supreme Court, Justice Samuel Alito applied the term “extortionate” in enough places to send a message back to the states that government’s needed to apply greater proportionality testing to these so called “mandates”. There are legitimate constitutional issues at stake when governments demand exaction's against property owners that are not proportionate to the law at hand.
Whether or not affordable housing production is indeed a 10% mandate, and not a “goal” as it is actually stated under the Act, there are now larger constitutional issues (and lawsuits) at stake.
The question submitted by the Barrington resident should have received a complete answer, not an answer that provided cover for one side. It is time for residents to demand a second legal opinion from another law firm on these and the related important matters. I hope that this question is finally addressed by the Town Council when consideration for a second legal opinion is taken up in the coming weeks. The opinion by certain council members that we can’t spend the money may actually be costing the town more in the long run.
