Today, we, along with Southeastern Legal Foundation, wrote the Nashville council for a second time regarding their affordable housing mandates. If this is the first you have heard of the issue, an affordable housing mandate forces developers of residences to use a complicated formula set by the city to sell their homes at below-market prices. In other words, the city is forcing people to lose money on something they sell. All of this is just to address an alleged crisis in affordable housing that does not exist.
This is price control, pure and simple. It is unnecessary. It does more harm than good. It does nothing to address the larger problem even in the best of cases. And even if none of this was true, forcing a property owner to lose money on homes that they build makes as much sense as addressing hunger by making a grocer lose money on the produce they sell.
We have written this second letter in the hopes that Nashville will fix the law. The law is illegal and unconstitutional for the reasons we explain at length in the letter. So ultimately Nashville will be forced to fix the law after ordered by a court. Responsible lawmaking can avoid this. We are happy to help.
There’s a particular reason to revisit the law. It was only supposed to be about residential apartment units. Everyone involved believed this to be true. Yet, buried in the law is an easily overlooked loophole that demands that “all proposed residential developments” who trigger the law “shall comply.” Nashville officials have told concerned parties to ignore that “shall” because the law is not supposed to impose the same obligations on residential units. The plain language says different. If this is a mistake, Nashville should fix it.
For us, litigation is a last resort. But when cities are willfully indifferent to the rights of others and won’t change even when warned, there is no choice. Litigation, however unfortunate, is sometimes necessary. It is all too easy for lawmakers to figure people will just bend instead of spending the time and money to protect their constitutional rights (which is why public interest litigation is so important). They may be right in most cases. This is not how a constitutional republic is supposed to work.
We hope for the responsible consideration of Nashville lawmakers.
You can read the full text of the second letter here.