Shield downtown pioneers from parking rates, council says

Dec. 05, 2013 @ 06:34 PM

Brushing off cautions from their lawyer, City Council members said Thursday they want to find a way to exempt what they term the “pioneer” residents of downtown from a move to boost parking fees to the market rate.
“Find us a damn loophole,” Councilman Eugene Brown told City Attorney Patrick Baker. “Find us a loophole and bring it back.”
Brown was reacting to Baker’s repeated warnings that city leaders would be taking a risk if they treat the 21 people or families who live downtown and had purchased a city parking pass before the summer of 2008 differently than the people who’ve arrived later.
Baker said any so-called grandfathering of long-term residents could generate equal-protection complaints, given that the city doesn’t base charges for other types of services on how long people have lived here.
He also said it could be regarded as an emolument, an old-time word meaning gift. The state constitution says gifts from governments to residents, save “in consideration of public services,” are illegal.
But he retreated under pressure from Brown, Mayor Bill Bell and other council members and said he’d try to come up with a way to do what the council wants.
“It comes down to the straight-face argument of when the judge says, ‘Come on Patrick, stop it,’” Baker said, insisting he’ll likely have to stretch the rules. “This is the fun part of being a lawyer and I’m happy to take a shot at it.”
The exchange occurred during a renewed discussion of what to charge downtown residents for use of the city’s parking decks and surface lots.
The city now charges $10 for a monthly residential parking permit. Council members in the spring agreed to raise deck and surface lot rates, and to include residents in that.
But the prospect of paying $55 or $65 a month, the higher rate applying to decks, for permits that don’t even promise a space 24/7 drew protests from many of the 130 people or families who hold residential permits.
Some argued that they invested in their property long ago, when downtown Durham was hardly a fashionable destination, with the understanding the city would give them free parking.
There is some history supporting that claim, but it’s a tangled one.
Durham is the only city in the state where this sort of argument can even come up, because state law elsewhere bars local governments from charging businesses and residents different rates for parking. The city in 1991 obtained special dispensation from the N.C. General Assembly to set up a different rate structure for residents.
That included the right to decide on the “method or system of classification” for the rates.
The City Council followed up in 1992 and 1993 by voting to allow people who live inside the downtown loop to park in the decks for free. But subsequent fee resolutions omitted mention of the offer, raising questions about whether the council intended to continue it.
In 1999, the council voted to institute the present $10-a-month fee for residents. But in 2004, officials discovered that some resident had been allowed to continue to park for free.
That happened during the administrations of former City Managers Lamont Ewell and Marcia Conner. Ewell left late in 2000 to take another job; Conner was forced to resign in 2004 by a council dissatisfied with her work.
City Transportation Department officials prepared for Thursday’s discussion by suggesting a phasing-in of increased residential fees.
They suggested charging $25 a month for a deck permit in 2014, $40 in 2015 and $55 starting in 2016. Permits for a surface lot would cost $5 a month less.
Officials want to raise rates because the downtown parking system now requires a $2 million annual subsidy from taxpayers citywide to make ends meet. The council has indicated it’s also likely in the near future to OK a move to paid curbside parking.
A spokeswoman for the residents, Marcia McNally, called the staff proposal “a punitive end run” and said opinions on it among residents were divided.
They are “understanding and acknowledge they should be paying something, that it shouldn’t be free forever,” she said. “But it is too much and especially [so] if you’re a two-car family. It’s too much given the poor security and potholes and the other poor-quality character of what we receive. And it’s too fast.”
Other residents emailed their views.
One, Kate Dobb Ariail, said the city’s stance on parking compares unfavorably to its willingness to operate the free Bull City Connector bus shuttle on Main Street to “bring the bums of east and west Durham downtown to hang out, drink, yell and urinate in public, often on our property, all day long.”
Baker said his cautions on grandfathering were “about risk avoidance” as downtown continues to redevelop.
With grandfathering, “I don’t know what the tipping point is before you get hit with an injunction and have to pay refunds” to residents excluded from a discount, he said.
He also pointed that out new laws from a General Assembly now dominated by Republicans will require cities that lose a lawsuit to pay the winning side’s legal fees.
Brown didn’t see the risk. “Who’s going to sue us?” he said.
“I would imagine the next big developer of downtown residential property who wants to get discounted parking passes would be one candidate,” Councilman Don Moffitt answered.