Rental Code Discriminatory?

unmarried_couples.jpgSaturday’s Northfield News reported that two local attorneys have filed a complaint with the city’s Human Rights Commission, charging that the new rental code discriminates against unmarried and gay couples.

According to the News, attorneys David Hvistendahl and Britt Ackerman contend that the rental code is biased against non-traditional families.

Ironically, the much-discussed book Denison, Iowa introduces the town’s political process with the following passage: “On August 4, 2003, the Denison City Council had a third reading of “Ordinance #1237 Amending Zoning to Adopt A More Restrictive Definition of A Family”. The ordinance would limit the number of unrelated people living in a single-family dwelling to three persons.” The author implies that the ordinance was aimed at Latinos.

According to the book, only one citizen spoke against the ordinance, her concern was for disabled persons or single women who might being living together to save money. The council members responded that if there were problems, the ordinance could be amended later. They voted unanimously to pass the ordinance and get it on the books.

I do not wish to imply that the city staff or council, any local religious or neighborhood groups, or any ordinances (new or old), are in any way discriminatory against unmarried couples, gays and lesbians, Latinos and Somalians, Jews and Muslims, or communitarians and musicians trying to reduce their housing costs. Rather I just want to ask the question:

Wasn’t the HRC consulted when the rental code was being developed?

17 thoughts on “Rental Code Discriminatory?”

  1. No..

    That’s a no on the question of consulting the HRC regarding the Rental Ordinance. That’s not surprising nor necessarily a short coming in a process that had so many. (IMHO)

    I can tell you that early in the development process… perhaps at the first or second time concerned citizens from the west-side came to the Open Mic… Brian O’connel did respond in public to the Council to the effect that these kinds of rewrites; as to limiting numbers of “related” or “non-related” tenants, was not going to be as easy as it might seem… then later in response to my direct: Why? He replied to the effect: in as much as the Supreme Court of the U.S. had struggled with such a definition in light of changing life styles (sic) non married atypical spousal arrangements, Gay Lesbian relationships… high numbers of adoptive children, etc. that a specific ruling was not going to be easy.

    Then, when the voices of the people began to echo repeatedly in the Council Chambers concerned about property values and neighborhood decay… that concern over the definition of “unrelated” seemed to evaporate.

    How its resolution was rationalized, or if it was… I can not say. Interestingly enough, I’d say that the last 12 months of discourse and argument on the Rental code… at least in my memory… that issue was never raised again.. by staff or by council.

    But as to the HRC being asked o weigh-in – that would imply a concern that simply was not there. Had the HRC been asked by citizens, I’m reasonably confident that the citizen’s question would have been kicked back to the Council. Furthermore, it is unlikely that staff would raise the question with a lay group such as the HRC… and in the end, the Ordinance language suddenly became about much more than numbers and parked cars

  2. What is the exact purpose of a code that limits the number of unrelated people living together to some threshold? It seems to me that the PURPOSE is to prevent high-density “crash pads”, which, given research on the effects of overcrowding, seems to me to be a noble goal indeed. Why is that not then used as the criteria? Of course, requiring a decent floor space per person would discriminate against the poor because rental rates would have to go up, since rental rates are basically equal to fixed costs + variable costs, and almost all of the total rental cost is in fixed costs (floor space and the like). And that should be a different issue.

    Now, if someone wants to weigh in and tell us that some cultures have higher density thresholds and that our mid-western thresholds are way too large, well, that is an interesting question. Does the current culture (which must have some rights to self-preservation) have the right to impose its standards of space, noise and clutter on everyone?

  3. Bruce asks (I know he only asks so he can tell us why)

    “What is the exact purpose of a code that limits the number of unrelated people living together.”

    Then tells us why (IHHO)

    “Seems the PURPOSE is to prevent high-density “crash pads”,

    In Denison the sense of some I spoke with as well as my read on the suggested reason by author Dale Maharidge in writing on that city’s Rental Code flap, it was thought to be a move to stifle Hispanic renters from packing into rental units.

    The common thought is that many Hispanic males come to the U S to work at better paying jobs than they can get at home. In many if not most situations of this nature, the goal is to send money back to Mexico (or other Pan-American countries) to provide for their families. It’s a hard way to raise a family.

    Even in many cases were entire families have immigrated to the U S (Denison is a good example of this) the family may be bigger than the income will allow for optimum living standards… and the families may decide over crowded conditions in the U S are better than poverty at home.

    Does that sound like a reasonable conclusion?

    Denison IA’s Hispanic population is a greater percentage of its total than that of Northfield’s Hispanic residents. Latinos have been there longer and in greater number and have assimilated into the mainstream of Denison in many ways that have not yet occurred here. While there are trailer courts that seemed to be predominantly Hispanic occupied… you get a sense that over the years many family units (mom, dad, and the kids) have been created there and have spread into neighborhood owner owned housing, hold jobs that put them side by side with anglos and in fact, in many cases own and operate business (service oriented, retail and professional) than Northfield might be able to boast of for years to come.

    That’s the numbers game for rental housing in Denison IA

    In Northfield… regardless of the effort made by most speaking publicly asserting “this is not a problem caused by college student living off campus… it is!

    While there may be some substandard rental housing (apartments or residences) that are occupied by non students here, that are problem renters… and there may be some landlords whose “questionable” property has other than student tenants… it is off campus student housing with too many living in one rental unit… parking too many cars all over the lawns and the neighborhood… bringing too much unacceptable conduct to other wise adult home owned neighborhoods… raising issues of great dissatisfaction.

    Limiting the numbers — reducing from a max of 5 renters down to a max of 3 (in most cases) was from the outset an over arching goal of the effort to bring change by Ordinance.

    Finally Bruce said:

    “Does the current culture (which must have some rights to self-preservation) have the right to impose its standards of space, noise and clutter on everyone?”

    Obviously is does and it did… unless contested in Court on the basis that is argued by David Hvistendahl.

    Considering the Court definition of UNRELATED… it seems this arbitrary language may bite the dust, if tested. Arguing on the principles of todays sociology… perhaps it should. Considering the outcome of egregious conduct of too many students in one rental unit and the down side of overcrowded off campus student housing… that might be unfortunate.

    What Bruce, would you do? Praying is not an option.

  4. I must be doing something wrong with this blog posting business. I try to stimulate discussion on citizen input to the Council – Administrator decision-making process and I get books and bibles and I work to come at the same topic using citizen-staffed boards and commissions and I get high-density crash pads.

    David, perhaps naively, I was thinking that if the Council – Administrator decision-making entity had a concern about potential human rights issues involved in one of their proposed ordinances that they would have consulted with their human rights commission.

    Victor, I guess what you’re telling me is that with all the other challenges and opportunities in writing the rental ordinances there were limited resources and/or motivations to check on potential human rights issues.

    Bruce, it sounds like if garage bands or vegetarian collectives are looking for affordable rental housing, they should just move to Dundas.

  5. Ross: You know how highly I think of you, but it comes of being a little too politic, or too smart, to ask the direct question.
    Is this it? : When making decisions that affect the community, should the staff and council make better use of their advisory citizen boards and commissions?

    Maybe the problem is that it is a one word answer: YES …
    or a three word answer: YES, OF COURSE …

  6. The rental ordinance was intended to be discriminatory. The staff was careful to note the discrimination issues, and to advise the city attorney to draft language that it thought would pass constitutional muster. Both Pokorney and Denison voted against the ordinance because of the discrimination concerns regardless of the constitutionality.

    If there is a process issue with City Hall on this issue, it may be that they shouldn’t have addressed this issue at all; or, better yet, should have addressed the issue with the colleges, rather than pass a law.

  7. Kiffi –

    Actually, I was sincere. Perhaps it was because the director of my MBA program at St. Thomas, Dr. Gene Kotz, had once been a Jesuit, but one of my courses was, at least in my mind, about getting stakeholder involvement in decision-making.

    This was the decision-making process for private corporations (although I suppose there might have been some professional public servants who were part of the program over the years), and yet we were taught that as one of the VERY FIRST STEPS in the process, you were supposed to figure out what stakeholders would be affected by the decision and therefore should be provided both some pertinent information and an opportunity for input. We were strongly encouraged to really push the envelope of stakeholder definition well beyond the Board of Directors and the Top Administrators to include not only the employees, suppliers and customers but also the members of the community in which the company and its facilities were located.

    Admittedly, the College of St. Thomas had taken a stance on ethical decision-making. There was the Milton Friedman (skip his pop “Free to Choose” and work your way through his magnificent “Monetary History of the United States”) School that argued that individuals left their personal ethics at the door when they were employed and the Peter Drucker (his “Management: Tasks, Responsibilities, Practices” is one of my top three recommendations) School that argued that private corporations were merely the latest organizational development in the historic process of human beings trying to wisely, efficiently and justly use resources and that these organizations reflected the ethics of the individuals that staffed (and directed) them. St. Thomas, understandably, advocated for an ethical component in corporate decision-making.

    You can see how (coming out of such an academic environment and not even mentioning those many years of Sunday School at Westminister Presbyterian Church in Alexandria, Virginia) that having been taught that private enterprises should identify and include stakeholders in their decision-making process I would hold the belief that public institutions hold have even higher standards of stakeholder inclusion in the decision-making process.

    So, I guess I was assuming that the rental code ordinance decision-making process would have not only have included the neighbors and the landlords but the tenants (both current and potential) or at least some group that would either represent or be sensitive to the concerns of the tenants. Looking at the landscape of organizations and entities in the community, rightly or wrongly, I was thinking that group would be the HRC.

    Thank you for helping me to clarify…

    – Ross

  8. In # 5 above, Ross concludes:

    “Victor, I guess what you’re telling me is that with all the other challenges and opportunities in writing the rental ordinances there were limited resources and/or motivations to check on potential human rights issues.”

    My response is: Are you kidding? There’s no way City Staff is going to ask anyone other than a paid consultant they hire… particularly citizen Boards and Commissions of such little note as the HRC — the Planning commission… maybe… but the HRC? Not likely.

    (EXPLANATION: 1) Don’t infer that I condone this attitude. 2) the “such little note” phrase is a term I use in my assessment of staff’s view of HRC…

    (My, limb is cracking!)

    Frankly, in my infrequent attendance of HRC meetings, it has been my conclusion they are hamstrung in being pro-active. It’s too complex to attempt much clarity here in a few sentences – I’m not implying sloth like characteristics on the part of the Commission… NOT AT ALL!

    Fact is they meet once monthly – no ongoing discovery mechanism is at their disposal… their staff support is not empowered with strong legal background or access to legal clarity on complex human rights issues… so they can do little more than hear a case and suggest an avenue of fix. The Police Chief is staff liaison to the HRc, and the likely thinking here is his department deals with many minority issues such as police discrimination.

    On the Rental code… they could have heard… and I’m sure would have listened… but the obvious discrimination here is not so easily seen by lay persons. It might be simply marked up to poor communications.

    My Assessment: Few city policy issues come to them — most issues they do hear are of a very personal nature… i.e. one persons discrimination plight… and no one brought this (rental code) concern to the HRC

    Had some citizens, fearing negative impact of the Rental Code and anticipating problems, brought it to the HRC’s attention… the Commission would not have been in an very effective position to handle it. At most, it is likely they would have directed it to the Council, asking it, to probe deeper.

    What’s weird here is, Brian O’connel’s initial remarks of “caution” centering directly on the issue of defining the term “related” were dropped. Why? Especially in light of the questions now coming back to the surface.

    Perhaps, an HRC representative can weigh in on this – explaining how things get on their RADAR, why it is they didn’t anticipate any problem of inherent discrimination, and what outcomes might have been expected, had they.

    In any event, I didn’t intend to “dis” the import of the question Ross raised… merely to point out what had actually transpired.

    indeed in Ross’s remark to me above the key word he uses (IMHO) is “motivation”… and I’d add… was there any?

    He follows with:

    “I was thinking… if the Council – Administrator decision-making entity had a concern about potential human rights issues involved in one of their proposed ordinances that they would have consulted with their human rights commission.”

    And I agree – adding that the process flows both ways. I wonder if Judy Dirks and/or David Schlosser… two names that have made valuable contributions to this blog… and both HRC members would give their insight. Another great voice to hear from would be former HRC Chair Ron Linde. He commented in the N’ NEWS “Letters” column Saturday 10/13.

  9. I posted about this issue last Friday but Ross didn’t see it. So I’ve deleted that post. Here’s what I wrote:

    ===========

    dave hvistendahl Local attorney Dave Hvistendahl sent me these emails (below) today. He believes that, as currently written, the new rental ordinance violates state statues that prohibit “…discrimination based upon marital status and the constitutional right to privacy and freedom of association in one’s home.”

    KYMN’s Jeff Johnson had Hvistendahl on the radio this morning, explaining the problems with the ordinance. Jeff sent me the audio:

    Click play to listen. 13 minutes.

    This issue was also discussed at Thursday night’s meeting of the Human Rights Commission.

    From: David Hvistendahl
    Sent: Wednesday, October 10, 2007 12:07 PM
    To: Maren Swanson; jon.brookins@ci.northfield.mn.us; Britt Ackerman
    Subject: housing code interpretation

    Maren:

    I had a client come in last week regarding the new housing code. He asked the building department whether he could have a roommate who paid rent or expenses without applying for a rental permit. The roommate would not have separate living space, other than a bedroom. He was informed by the building department that if he received any compensation for the arrangement, that it would be a rental, and he would have to apply for a permit.

    This broad interpretation of the term “rental unit” will have far reaching social and political implications in our city of unconventional relationships. The line drawing here will be very difficult. Does it apply to a married couple, when only one person’s name is on the title? Does it apply to only unmarried couples? Are unmarried couples who sleep together exempt? Do gay couples get an exemption? Does it matter who sleeps where? How much compensation is required to consider it a rental? Is taking out the garbage and mowing the lawn constititute consideration?

    It seems to me that the ordinance in a number of respects violates the Minnesota statutory prohibition of discrimination based upon marital status and the constitutional right to privacy and freedom of association in one’s home. It is also conflicts with the Building Code, which preempts the city’s regulation of housing construction. (The recent case that you cited only allows the city to adopt housing regulations that are not covered by the code, such as parking requirements and density. The manner and means of construction is solely the province of the building code.)

    If this is the city’s final interpretation of new code, Britt Ackerman, who has a significant other, and I, who have a significant other, volunteer to be the first prosecuted under the new ordinance. We will not apply for a rental license, we will agree that the ordinance density and zoning prerequisites have been met, that we sleep in separate bedrooms, that we receive compensation for the other residing in the homestead, and we will agree to try the matter on stipulated facts. If the city is going to enforce the ordinance, it should start with some cases with volunteer attorneys, rather than citizens who lack the means to defend themselves.


    David Hvistendahl
    Attorney at Law
    Law Office of Hvistendahl, Moersch & Dorsey, P.A.
    311 South Water Street
    Northfield, MN 55057

    ==================

    Subject: Northfield Housing Ordinance
    Date: Fri, 12 Oct 2007 12:32:13 -0500
    From: David Hvistendahl <dhv@hvmd.com>
    To: judydirks@earthlink.net, Britt Ackerman <backerman@hvmd.com>

    The summary of the complaint is as follows:

    Two Northfield residents, David Hvistendahl and Britt Ackerman, have filed a complaint, pursuant to M.S. 363A.07, that Northfield Ordinance no. 868, concerning rental housing, violates on its face the provisions of M.S. 363.A.09 Subd. 1, which prohibits unfair discriminatory practices relating to real property. Ordinance no. 868 discriminates against the following protected classes:

    1. unmarried couples, including gay and lesbian couples, by affording rental housing rights to married couples that can be potentially denied to unmarried couples (M.S. 363A.09 subd. 1 (a) & (b);

    2. landlords, by requiring them to make inquiries in rental applications related to marital status, and by forcing the landlords, under penalty of law, todeny housing opportunities based upon marital status. . M.S. 363A.09 subd. 1 (c)

    You may want to review the language of the recommendation with the committee and John Dennison at a special meeting. We would be happy to attend to review the statutory basis for the demand. The committee, by statute, is not required to obtain the city council’s approval to refer it to the commissioner, so I would describe it as a courtesy request to the council (to allow them to save face.)

    Because the responding party is the Northfield City Council, the Northfield Human Rights Commission recommends that:

    1. the matter be referred to the Commissioner of the Minnesota Department of Human Rights for review of the offending provisions of the ordinance, pursuant to M.S. 363A.07 subd.3;

    2. the city council request technical assistance from the Commissioner to the city in revising the ordinance so that it complies with the Human Rights Act, pursuant to M.S. 363A.06 subd. 1 (16);

    3. suspend enforcement of the ordinance until such time as the city council has received and complied with the order of the Commissioner.

  10. Evidently (re: Staff) the existing Ordinance was not enforceable as it had no penalties attached, TOOTHLESS!

    It was and is the based on basic MN Building Code with additions today in our Ordinance that specify conduct and use beyond building issues – and include exterior limitations to properties such as parking – and general appearance issues – feeling the Landlords could be held ( and should be held ) to more rigorous standards that private home owners.

    You’ll hear the “Code has not been updated for 35 years” and while that may be true… it is also misleading ( I think) inasmuch as the building official has always had upgrade jurisdiction over safety issues and many other health related concerns. I believe he’s always had authority to enforce the MN Build Code.

    The problem arises with many Rental units being established (some without ever being licensed long ago – making official oversight impossible) in a less controversial time vis a vis some student tenants and some non student tenant conduct. Additionally, there were times when physical discrepancies such as gross window size – door width – stair railings and even plumbing issues were deemed too difficult to retrofit, so these non compliant issues were (have been ) overlooked.

    Now with the all inclusive new code and the Ordinance text giving big bite to the official tooth… these difficult if not impossible retrofits may put some GOOD landlords out of business. It may also put some bad properties out of business.

    My view, in reality the code needed strengthening in the area of allowed numbers of tenants… and stringent enforcement of parking regulations. All the other literal Building Code requirements are (would be covered) with a simple statement of “the official Building Code will apply. Numbers of residents and parking were the issues raised by neighbors to rental housing in March of 2006!

    To be fair to the Council… it did make sincere efforts to allow for what we mere citizens might refer to as “Grandfathered” conditions. But, if allowed to enforce the black letter of the code… the BO can make many legitimate landlord’s life hell… and very expensive!

  11. Christine –

    I have had several people in the “neighbor” (not “landlord” or “renter”) category approach me at my home or on the street about the issue, even though I have nothing to do with it (Planning Commission, Locally Grown, NDDC…who knows?).

    They all told me that, in their non-professional citizen view, it was all about inadequate enforcement. They cited examples of calling in complaints, having the city staff make a visit, and then seeing nothing being done.

    Speaking of discriminatory, most of them spoke of uneven enforcement based, at least to their amateur observation, on the owner of the property.

    – Ross

  12. Why not just consider gay couples to be “related”? Then they’re not unrelated adults, they’re related adults. We still get to stare disapprovingly at houses full of misbehaving college kids (unless they’re dorms, in which case we think about them with nostalgia), but we don’t have a discrimination problem.

  13. Peter, what would prevent college kids from claiming a sexual orientation just to pass the definition of “related”? The City can’t say, “… no more than 3” because that is clearly unconstitutional.

    The ordinance discriminates in another way. It limits the percentage of rental homes in an area. Perhaps that is for another discussion.

    Assuming that the discrimination doesn’t rise to the level necessary to be unconstitutional, do we really want a law on the books in Northfield that we know is discriminatory to gays, lesbians, college students, and every other kind of lifestyle?

  14. Apparently, for the sake of property values, lots of people are comfortable with a law that discriminates. Money, property, ownership, and subjective “decency” seem to have trumped valuing our neighbors, working out and mediating conflicts, and providing accommodations to those who might not “be like us.”

    Classism and discrimination are the “new black.”

    If we want to get rid of just the “crash dumps” we could do it in a smarter way that doesn’t discriminate on the basis of what folks call “lifestyle.” A domestic partner registry in Northfield (for both same-sex and opposite-sex couples who cannot or wish not to marry) could be an avenue to prove “relatedness” with regard to rental housing.

    Oh but then those pesky college kids would all register! Drat! (read: sarcasm)

    But hey, it’s a great NIMBY law now, for a town that wants to be an “inclusive art town” to attract the “creative class.” Quite an identity crisis we’re having.

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