Housing laws continue debate

In June 1985, when most of the incoming class of freshmen was less than two-years old, the Bloomington city council passed an ordinance disallowing more than three unrelated adults from living in the same single family residence. Almost 17 years later, a panel of three appeals judges on May 17 unanimously ruled the ordinance unconstitutional.\nThe appeals court ruling is the latest event in an almost seven-year legal saga involving a resident complaint of over-occupancy against landlord Peter Dvorak and it's not quite over. City Assistant Attorney Michael Flory intends to petition the Indiana Supreme Court to review the decision and has two weeks remaining to do so.\nDueling judges\nThe latest ruling comes after a similar case involving a different landlord, a different property and a different panel of three appeals court judges. That panel ruled in 2000 that the ordinance was constitutional. After that appeal, the Indiana Supreme Court refused to review the appeals court decision.\nSpecifically, the two different appeals panels disagreed on whether the Bloomington ordinance violates a clause in the Indiana constitution that says all classes of citizens must be treated the same.\nIn the most recent case involving Dvorak, the appeals court panel said the City had no document support in professional literature to show that unrelated adults affect the City's concerns any more than the same number of related adults. \n"As one of the judges said in an earlier round of this case, under the ordinance, Ma Barker and her gang of criminals could have lived next door because they were her sons," said IU law professor J. Alexander Tanford, cooperating attorney for the ICLU.\nIn the case involving Douglas Wells, another appeals panel cited an Indiana Supreme Court decision that said a classification having some reasonable basis should not be condemned even though it may wrongly classify some people. \n"Just because I can pick out one group on this side that should be on the other side and vice versa, that doesn't mean necessarily it's wrong from a legal standpoint," Flory said. "For example, you've got the drinking age and the driving age. The legislatures draw lines all the time.\n"My feeling is that they made a mistake in the level of scrutiny that they are supposed to apply in respect to legislative action," said Flory of the judges in the Dvorak case. "They acted as if we have to prove that there's a difference between (related and non-related adults) rather than using common sense."\nUnpublished decision\nSince the Wells decision was unpublished, it cannot be regarded as precedent or cited before any court except for the Wells case specifically. Appeals court judges do not have to give any reasons for not publishing a decision. \n"Just forget that you ever heard of (the Wells) decision because it makes no difference legally," Tanford said.\nFor whatever reason the Wells decision was unpublished, Flory intends to use the basis for decision as one of his arguments in his petition to the Indiana Supreme Court to appeal the case. In addition, Flory and Tanford agree the end result of this case could become a matter of statewide importance with similar ordinances being challenged.\nNon-traditional families\nCritics of the Bloomington ordinance point out the city's definition of family excluded non-traditional living arrangements not involving blood, marriage or legal adoptive relations; for example, elderly divorced couples with adult children or live-in nurses or gay adoption.\n"It was never enforced, but it was still illegal," Dvorak said.\nThe landlords in both cases believe the ordinance was aimed at students and not unrelated adults. \n"What the city was trying to accomplish was keeping students out of certain neighborhoods," Dvorak said. "If you replace three unrelated students with blacks, Hispanics or Jews, you look at that and say 'That's ridiculous,' and the city needs to recognize that."\nCity council member Tim Mayer denies that students, rather than unrelated adults, were specifically targeted. \n"But that's the way it plays out in Bloomington when you have 20,000 students living off campus because IU cannot house them all," he said. "The intention was to save wear and tear on the houses and the community."\nAlthough Dvorak concedes that the City's concerns are legitimate, he believes better enforcement of specific ordinances is a better and constitutional answer. He cites successful city initiatives, such as Quiet Nights, that have led to greater enforcement of noise complaints.\nFuture city action\nIn addition to stricter enforcement of current ordinances, Flory speculates that the city may implement occupancy restrictions based on the square footage of a residence but believes doing so would entail a high administrative cost. \n"You'd essentially have your staff measuring square footage of the every unit in the city, which would divert dollars from what we think are more worthy uses of tax dollars -- street repair, sidewalk installations, parks, police and fire support -- your basic public safety needs," he said.\nTanford calls this an idle threat and points out that the city faces decisions on how to spend its money all the time.\n"If the city chooses to start spending money stupidly and stop repairing streets so that the zoning police can go around and inspect everybody's house, they're going to be voted out of office," he said.\nDvorak believes that no new administrative staff would be necessary because the city already has "an army" of code enforcement officers currently doing regular inspections. \n"(The officers) can do them at the same time that they're doing their other inspections," he said.\nAll about the money\nAlthough the recent decision was overturned on a constitutional issue, Mayer believes a large part of this case is about money. \n"If you have a large house with a large number of bedrooms, you can get a large number of people in a single house, and renting starts to make financial sense," Mayer said. "(Some landlords) are looking at what is the bottom line and not the community."\nDvorak concedes that there are some landlords who don't have the interests of the community in mind. \nHowever, he believes that most landlords who own single-family homes are ordinary citizens of Bloomington with the same basic concerns as other citizens and are not absentee out-of-state corporations. \nIn the Dvorak case, the property was "grandfathered" to allow occupancy by four adults. Five occupants were charged in the case, and Dvorak says it is difficult to tell exactly how many people were on the lease for the time frame in question.\n"(Landlords) are certainly going to be interested in making a profit at their business," Dvorak said. "But they don't want their house torn up because there are 10 people living in a 4 bedroom house"