POWHATAN – When the General Assembly convenes today, Jan. 8, for the 2020 session, among the more than 650 bills legislators will consider is one that would make it illegal for any locality in Virginia to discriminate against affordable housing developments.

Senate Bill 97 was prefiled in December 2019 by Sen. Jennifer McClellan, D-9, who said she has been concerned for a number of years about the shortage of affordable housing in the state and the negative stereotypes about affordable housing projects that have led many localities to say “not in my backyard.”

If passed, the bill would make it an unlawful discriminatory housing practice for any political jurisdiction, its employees or appointed commissions to “discriminate in the application of local land use ordinances or guidelines, or in the permitting of housing developments, on the basis of race, color, religion, national origin, sex, elderliness, familial status, handicap, or because the housing development contains or is expected to contain affordable housing units occupied or intended for occupancy by families or individuals with incomes at or below 80 percent of the median income of the area where the housing development is located or is proposed to be located.”

McClellan said she previously introduced a similar bill in the State Senate last year and when she served in the House of Delegates in previous years because the anti-discrimination measures in the Fair Housing Act weren’t expressly applied to local governments when making land use decisions.

Discussions about land use in Powhatan County have been a hot topic for several years, especially as the Powhatan County Board of Supervisors updated and finally adopted its 2019 Long-Range Comprehensive Plan.

In the midst of those discussions, there have been several land use cases that have drawn a great deal of attention and feedback from local residents, including an application to build an affordable housing apartment complex in the county.

On Feb. 26, 2018, the board of supervisors voted 4-1 to deny KCG Development LLC’s application to rezone a 26-acre property so it could build a 204 multi-family apartment complex in Powhatan. The project, known as The Reserve at South Creek, would have been situated on land located at the crossroad of Old Church Road and Carter Gallier Boulevard. The developer proposed to finance the project using housing tax credits.

A good portion of the arguments against the apartment complex included increased traffic on already congested roads, negatively impacting the rural feel of the county, extra burden on the schools, and increased crime.

But some of the stronger rhetoric against the apartment complex was later cited in a letter sent to the county by a law firm representing the developer in fall 2018. The letter alleged that denying the rezoning request violated the Fair Housing Act and caused the developer to suffer “injury as a direct result of the county’s discrimination.”

It cited language used during the Feb. 26 meeting by residents as well as documents sent to the county, many of which used “stereotypes and thinly-veiled language about race to warn supervisors of what they fear will be the result of affordable housing: high crime, drug use, dangerous people in proximity to Powhatan schools, ‘importing outsiders’ from other areas, destruction of the charming and rural character of Powhatan, reduction of property values, and the like.”

The developer later took its complaint to the Civil Rights Division of the U.S. Department of Justice, which contacted the county in November 2019 saying it had initiated an investigation into potential racial discrimination by the board based on the complaint.

If McClellan’s bill were to pass with its current wording, such a complaint could be taken to the state attorney general instead of going through the Department of Justice.

McClellan said on Jan. 2 that she was aware of the Powhatan case and thought it was reasonable to believe that that decision was based on who was going to live there and the number of affordable housing units.

“I did not pay close enough attention to say whether that is a slam dunk case or not. But what was said at the hearing certainly raises that question. And if that decision was based solely on they are affordable housing units and who is going to live there, then that is exactly the kind of decision we are trying to curb with this bill,” she said.

However, she said she does not know enough about the case to prejudge what the Department of Justice will find in its investigation.

McClellan said she believes governing bodies in localities “have the right to listen to what people want in their community, but everyone in that community also, I believe, has a right to housing.”

“There are too many people of lower incomes who don’t have housing available, and the government is going to have to deal with that, either by dealing with homelessness or helping to provide homes for them to live in,” she said. “When there are developers who want to provide housing for people who can’t afford them, it is, I believe, the government’s responsibility, to provide that housing or at least not stand in the way of it solely because of who is going to be living in it.

“Can they make decisions about density and impact on the community and impact on services that are need? Absolutely. But I do not believe a local government should decide to approve or deny a proposal solely because of who is going to live there,” McClellan said.

Having seen this issue from both sides as a former supervisor and a legislator, Del. Lee Ware, R-65, said the purpose of zoning and planning is to shape development and to achieve compatible neighborhoods. It involves taking into account private property rights and those who want to develop and attempting to harmonize them. Historically those land use decisions have been delegated to governing bodies like the board of supervisors, and “rightly so, because the best land use decisions are made nearest to the citizens affected.”

Ware said he has not formally taken a position on the bill, but he doesn’t expect he could support it because of the request he so often hears from localities – “don’t tie our hands. Don’t give us mandates that limit or restrict unduly our capacity.”

When asked about their reactions to McClellan’s proposed bill David Williams, District 1; Larry Nordvig, District 2, and Bill Cox, District 4, declined to comment.

Mike Byerly, District 3, said he does not think the Commonwealth should be regulating how a local jurisdiction applies permitting or zoning ordinances. 

“Additionally, race, gender, religion nor income should play any role in approval or denial of any permitting, zoning, or re-zoning applications anywhere,” he said.

Karin Carmack, District 5, said it is obvious that discrimination should not be allowed to play a role in a decision made by the board of supervisors. At the same time, she said she is not thrilled about the idea of legislators in Virginia dictating to the localities its land use patterns and densities.

“I think a locality is definitely much better versed at making those decisions certainly than somebody who has no idea of traffic implications, school implications, etc.,” she said.

Laura McFarland may be reached at Lmcfarland@powhatantoday.com.

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