Required occupancy affidavits for renters OK’d by Bloomington city council, but city’s HAND department won’t maintain records

On a 5–3 vote on Wednesday night, Bloomington’s city council approved a new local law that requires landlords to sign and maintain an affidavit that lists the occupants of their rental properties.

The basic law applies just to those buildings with four or fewer rental units.

Tenants also have to sign an affidavit affirming the accuracy of the landlord’s affidavit.

But under the ordinance as adopted by the council, the affidavits signed by the landlord and tenant don’t have to be submitted to the city’s housing and neighborhood development (HAND) department.

Instead they have to be maintained by the landlord, and produced for scrutiny during any HAND rental inspection, or in response to a request from the city.

The stewardship of the affidavits was changed from the HAND department to the landlord through a major amendment to the legislation [Am 03], which was adopted by the council on Wednesday night.

Also a part of the amendment was the deletion of the relationship information among tenants that had been required in the version presented to the council at its first reading in May.

Two weeks ago, when councilmembers could have taken final action, they instead decided to postpone consideration of the ordinance until this week.

The ordinance is intended to help the HAND department enforce the city’s zoning code on the definition of a “family.” Family relationships help determine the maximum occupancy for a housing unit, under Bloomington’s unified development ordinance (UDO).

In the R1, R2, R3, and R4 zoning districts, Bloomington’s UDO sets a limit of three for the number of unrelated adults who count as a family. Adults who are related by blood or marriage are not restricted in number in the UDO’s definition of a family.

The occupancy limit itself, as an issue, got some mention by public commenters and by councilmembers, even though it was not the policy question in front of the council.

During public comment, Joe Bolinger said the underlying UDO requirements on occupancy are “misguided, and discriminatory toward renters.”

Councilmember Matt Flaherty said, “The underlying policy about three unrelated is something we need to continue to think about.” He added, “It discriminates against non-traditional family structures.” Still Flaherty concluded, “That’s a conversation for another day.”

Those voting against the ordinance—Flaherty, Kate Rosenbarger, and Isabel Piedmont-Smith—were not persuaded that HAND’s existing enforcement tools were inadequate to address the relatively infrequent instances of over-occupancy in the city.

The 5–3 tally did not add up to nine, because councilmember Steve Volan was absent.

Of those who spoke during public commentary, none were in support of the ordinance. The general theme of public comment was that the amended version of the law was a vast improvement over the original, but was still too broad an instrument for a relatively small problem.

The ordinance requiring an occupancy affidavit initially appeared ready to sail through the city council, based on the deliberations of the city council’s four-member housing standing committee. On a 4–0 tally, the committee recommended approval of the ordinance, with the minor amendment of a “whereas” clause.

Attitudes changed. The three councilmembers who voted against the ordinance all sit on the housing committee: Flaherty, Rosenbarger, and Piedmont-Smith. Only the fourth committee member, Jim Sims, supported the ordinance in the council’s final vote.

The change in perspective came at the council’s meeting two weeks ago, after criticism was leveled at the ordinance itself, based on privacy concerns.

The lack of outreach by the administration to key stakeholders during the crafting of the ordinance was also a sore point. Some stakeholders became aware of the proposed ordinance only after reading about it in news reports.

The ordinance was postponed two weeks ago, because of those concerns.

At the city council’s meeting two weeks ago, sharp criticism came from Mark Figg, speaking on behalf of the Monroe County Apartment Association (MCAA). The group represents about 4,000 units and about 100 landlords.

This week, Figg was in support of Amendment 3, which eliminated the requirement that affidavits be submitted to HAND and that relationships between tenants be recorded on the affidavits.

But overall, Figg opposed the ordinance, saying, “I don’t support the ordinance, simply because I don’t see the evidence of an over-occupancy problem.” The membership of the MCAA, Figg said, had no recollection of over-occupancy issues of any kind in recent memory.” Figg concluded: I don’t see the case for it. I would beg you to not pass this.”

Speaking during public commentary, Andrew Guenther said that HAND’s resources should be used to enforce laws already on the books. He said, “Over-occupancy is not one of those laws that is routinely violated.” Guenther said that pursuing violations that actually impact the health and safety of renters in Bloomington would be a better use of HAND’s time.

For councilmembers voting against the ordinance, one interaction between Flaherty and HAND director John Zody appeared to be pivotal. Flaherty asked Zody about the number of violations for over-occupancy. Zody put the number of complaints received through various channels at around 25 to 30 a year.

Based on the 15 uReport complaints that the city of Bloomington produced to The B Square for a three-year period, maybe half of them don’t appear to involve actual over-occupancy.

HAND director John Zody was not able to give Flaherty hard numbers for the notices of violation for over-occupancy that had actually been issued.

Flaherty followed up with a question for Zody about the “shortcomings of our current tools.” Flaherty pointed out that landlords have an interest in preventing over-occupancy in a unit—because someone is living there, without paying for the space.

Flaherty wondered if the ordinance was not creating a wide-ranging system to do something that the city is already able to do—which is to investigate and enforce over-occupancy in maybe two dozen cases a year.

Zody framed his response in terms of uniform standards for investigating a complaint, drawing an analogy to the uniform 8-inch standard that defines excessive growth for grass.

A HAND inspector will be able to ask for the standard affidavit, Zody said, as opposed to searching through different types of leases that a landlord might produce. The affidavit would also cover situations where there’s only verbal lease.

Zody said requiring an affidavit that has to be produced on request, “helps level the playing field a little bit, I think, on how we’re able to retrieve information, if there’s an over-occupancy complaint or concern.” An affidavit puts the same standard in place for all the rental units, he added.

When he explained his vote against the ordinance, Flaherty said that the scope of the problem is “really very, very small… like, maybe count-on-your-hands over the last few years.” He noted that an actual number for the notices of violation had not been provided. Flaherty summed up the numbers question by saying, “We know the problem is small—we don’t know exactly how small.”

As far as shortcomings of the current tools, Flaherty said, “I really don’t feel like I got a satisfactory answer to what’s wrong with our current system. What’s wrong with our current set of tools for enforcing valid complaints of over-occupancy?”

In her concluding remarks on the ordinance, Piedmont-Smith revealed that her view had shifted during the meeting. “I was planning to vote in favor. But upon further reflection and public comments, I just don’t think the case has been made, that this is really necessary, that this is really a problem, and that we don’t have tools to address the occupancy limits that we have.”

Councilmember Susan Sandberg framed her vote for the ordinance as supporting the HAND department. “[The issue] goes beyond occupancy and the problems that over-occupancy have most certainly presented to neighborhoods throughout the years.” She continued, “It’s good for renters to have housing that is well managed and well maintained.”

Sandberg added, “Having a strong HAND department that regulates rental properties is a good thing. That’s a very, very good thing for the city of Bloomington.”

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