Shiver filed his complaint on behalf of four potential buyers, residents of his neighborhood who would be unable to qualify for home loans at the current sale price. Their contention: The commissioners reneged on their original mandate, which was to provide housing for moderate-income families, and specifically for area residents. If the appeal is upheld, the city will have to hold new public hearings and come up with a lower price. The court has yet to rule on Shiver's case. But the young attorney is used to waiting.
Over the years, Shiver and other activists in the area known as the Black Grove watched with increasing frustration as the size of St. Hugh Oaks was scaled down while the per-unit price escalated. It finally reached a point, the project's critics argue, where the homes are no longer affordable for moderate-income families.
Originally commissioners considered a plan for 40 townhouses to be built on 3.1 acres at the intersection of Douglas and Franklin roads, land the city bought for $1.1 million in 1986. Then they began to whittle down the number of units A first to 30 single-family homes, then to 28, and once more to 23. Shiver says the revisions were spurred by residents of the mostly white South Grove, who complained that the project, which occupies land along the invisible dividing line between their neighborhood and the Black Grove, would cause their property values to plummet. And, adds Shiver, they found a willing listener in Commissioner J.L. Plummer, himself a Coconut Grove resident. "Plummer was pushing the price up to control who is going to live there because these white residents were concerned about who their neighbors were going to be," Shiver says, shaking his head at the old property-value argument. "They were concerned about black people."
As the number of homes decreased, the per-unit sale price rose, from $65,000 to $95,000. Then came Hurricane Andrew, which resulted in overruns that upped building costs to $155,000 per home. Commissioners responded by raising the sale price once more, to $115,000, over the strident objections of Shiver and his allies, who protested that the original mission of St. Hugh Oaks had been subverted.
All along Shiver and his fellow activists had requested that eleven homes be set aside for blacks, and six of those for current residents of the Black Grove. The city's response: Under federal law, a pattern of past discrimination would have to be proven before any group could be favored in housing. In July Assistant City Attorney Linda Kearson found no evidence of discrimination against blacks. The set-aside idea was nixed, the activists erupted, and Shiver, an assistant Dade public defender, filed his suit. "I can't go into court and say the commissioners broke a promise to the community," he says. "But I can say they miscalculated the price."
Shiver argues in his complaint that the city is in violation of its own Comprehensive Neighborhood Plan, which he contends is legally binding. Specifically, he points to the plan's stated goal to "increase the supply of safe, affordable and sanitary housing for low and moderate income households...." In another section of the plan, Shiver notes in his suit, the city defines affordable housing as "residential units whose associated housing costs...are equal to or less than 30 percent of the median household income in Dade County." (The county's current figures peg Dade's median income at $35,700 for a family of four.)
In its analysis of the St. Hugh Oaks project's affordability, however, the city defines moderate income as "annual gross household income ranging from 81 percent to 140 percent of the [county's] median income...." In other words, according to the city, "moderate income" currently ranges from $28,900 to $50,000 per year for a family of four.
Applying Federal Housing Administration financing guidelines, the project's planners calculate that at $115,000 per unit, the St. Hugh Oaks homes require that a buyer earn $44,000 or more annually, well within their range of affordable housing for moderate-income households. Using the same guidelines but applying only the median $35,700 figure, Shiver argues that the price of the homes cannot legally be set at more than $90,000. (Even that price tag, he says, would exclude many residents of the Black Grove.)
Alfredo Duran, housing development coordinator for the St. Hugh Oaks project, admits the city did not use the Comprehensive Plan in determining the per-unit price. Instead, explains Duran, the city based its "moderate income" definition on identical wording found in the guidelines for one of Dade County's housing projects. Duran says this is a common, accepted practice. He adds that he's unfamiliar with the Comprehensive Plan's limit.
"Considering the quality of the project, the houses are selling below the cost of something similar on the open market," explains Duran, pointing out that when the actual cost of the homes is taken into account, the $115,000 sale price amounts to a $40,000 city subsidy on each unit. "This project was never intended to be a low-income project."
The city is under no obligation to adhere to the housing goals set forth in the Comprehensive Plan, according to city planner Clark Turner, who also teaches urban studies at Florida International University. Though the city is bound to comply with some elements of the plan, Turner explains, other elements, including housing, are considered optional. "There is nothing in the plan to bind the city to observe [an optional element]," Turner says, adding that the plan is scheduled to be overhauled next year.
Shiver says he hopes his case never gets as far as the courts. To that end, he has offered the city a settlement: Reduce the price to $80,000 per unit and guarantee eleven homes for blacks, with six of those reserved for buyers within the community. (Shiver contends that the bond-issue funds the city spent for the St. Hugh Oaks project were earmarked for housing that would be used by residents of the community in which it was built.)
There may be room for negotiation where Shiver would least expect it. Commissioner J.L. Plummer says that although the city attorney has ruled out setting a quota, lowering the selling price is another matter. "I would have to ask the city attorney if that is possible," Plummer says. "Then I would be willing to sit down and go into the matter further." The commissioner says he always has wanted the project to serve moderate-income buyers, but he was worried about the bottom line. "I felt the density as proposed was way out of line," Plummer explains. "What I was concerned about was that it did not show a break-even point as far the actual cost. To continue these kind of programs, you cannot have a deficit every time." (Assistant City Attorney Kathryn Pecko, who is handling the petition, did not return calls requesting comment about the case.)
A relatively green lawyer by his own admission, Shiver realizes he might be up against a heavy legal adversary. But he says that if the city persists in its claim that blacks have not been victims of discrimination in housing, he's ready: He is preparing a federal discrimination suit to show that the Black Grove is a segregated community. "I am suing on affordability now," says the attorney. "But I may use a discrimination suit later. It depends on how the city takes care of this suit. You can call it blackmail; I call it being a good lawyer.
