Law requiring occupancy affidavits for renters put off at least 2 weeks by Bloomington city council

A decision on a proposed new local law that would require landlords and tenants to sign occupancy affidavits, and file them with the housing and neighborhood development (HAND) department, has been postponed by Bloomington’s city council until June 16.

The unanimous vote to postpone final action came after public commentary from one smaller-scale landlord and a representative of the local apartment association. They called into question the need for the new local law.

As councilmembers were mulling a longer postponement, until July 21, HAND director John Zody told them, “I would encourage the council to fix a date where we would hear this again, if possible, so that we can work off of a timeline.”

Zody told councilmembers the new ordinance is a priority for the administration.

It became a priority, Zody wrote in response to an emailed question from The Square Beacon, when the state legislature enacted legislation that prohibits the city from requiring the issuance of a tenant’s rights and responsibilities document. Bloomington’s rights and responsibilities document included a section similar to the occupancy affidavit. [SEA 148]

According to a “whereas” clause in the ordinance, Bloomington has “a demonstrated problem enforcing over-occupancy in residential rental units.” It’s a claim that drew skepticism during  public commentary.

The ordinance would require landlords to make a “diligent inquiry” into the family relationships, if any, among tenants, and list names of tenants, and the nature of those relationships.

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 ordinance applies to all buildings with four or fewer rental units. Units in buildings with more than four units are included, only if there’s a complaint.

The affidavit form that is incorporated in the ordinance would require a sibling relationship to be documented with the names, addresses, telephone numbers and email addresses of their parents.

Amendments

Before Wednesday’s vote to postpone, the council passed two amendments to the ordinance.

The first was uncontroversial. It struck the second “whereas” clause, which read, “….over-occupancy in residential rental units presents dangers to the health and safety of the people living in and around said units…” The striking of the clause was expected based on the previous week’s deliberations by the city council’s housing committee.

Also expected on Wednesday, based on the committee’s deliberations, was an amendment that requires owners and tenants to sign the affidavit annually, even if the same tenants stay in a unit.

Under the ordinance as proposed by the administration, owners would have to sign the affidavit annually, but could fill in “no change in occupants,” if the tenants remain the same. Tenants would not have to file a new affidavit every year, under the unamended ordinance.

The amendment that requires annual filing of affidavits passed on a 5–4 tally. Voting for the amendment were its two sponsors, Jim Sims, Isabel Piedmont-Smith, who were joined by Steve Volan, Sue Sgambelluri, and Ron Smith.

Voting against it were Matt Flaherty, Kate Rosenbarger, Susan Sandberg, and Dave Rollo.

One of the arguments that requiring the affidavit, even with no change in tenants, would not be too burdensome, is the idea that it could be done at the same time when a lease is renewed.

Weighing in against that argument, and the amendment, during public commentary was Greg Alexander. He described the tenant of his one property as long-term, with the lease renewing automatically every year.

About the idea of an annual affidavit, Alexander said, “It would be another pointless interaction with my tenant for me to do this.” He added, “We shouldn’t penalize multi-year tenants. And I understand it’s a small penalty, but it’s just stupid.”

Ordinance as amended

Commenting later on the ordinance as amended, Alexander said about his use of the word “stupid” that he “didn’t mean any insult to those sponsors to the amendment.” He added, “I just feel like it would be stupid for me to go and hassle my tenant every year for no reason.”

Alexander continued, “The affidavit asks landlords to take an invasive interest in the tenants. I am myself a small-time landlord, just one little house—same tenant for 10 years now.” Alexander said, “The idea of making personal and diligent inquiry into my tenants’ private life gives me the creeps.”

Also weighing in against enactment of the ordinance that night was Mark Figg, speaking on behalf of the Monroe County Apartment Association. The group represents about 4,000 units and about 100 landlords, he said.

When compared to the amount of outreach that was done to merchants in connection with the closing of Kirkwood Avenue for dining, Figg said he was disappointed the administration had not reached out to the apartment association on the occupancy affidavits.

Zody allowed, “We didn’t do proactive outreach to the apartment association.” Zody indicated at Wednesday’s meeting that he sees an opportunity for revising the required affidavit form, in collaboration with the apartment association, after the ordinance is adopted.

Figg was skeptical that there is an actual over-occupancy problem: “I just want to say that I question whether there’s really a problem. I’ve seen no data that indicates there’s an over-occupancy problem.”

Figg continued, “All landlords have leases with their tenants that specifically say what they can and can’t do, and who they can and can’t have there. And we enforce it.”

Earlier, Zody had said complaints about over-occupancy come to the city in several ways: “If it happens in a neighborhood, we may get a call, we may get an email. We may get something through uReport, that may go to an inspector, then moves to the planning department for a notice of violation.”

Figg echoed Alexander’s perspective about prying into people’s private lives. He said, “I also have questions about the public record of when we submit these things, these affidavits.” Figg noted that there’s personal information included on the forms, even about the parents of tenants who are siblings.”

Figg concluded, “So I just feel like that’s a little overreaching, a little bit intrusive, from a privacy standpoint.”

Not scrutinized at Wednesday’s meeting was how the phrase “diligent inquiry” is supposed to be interpreted. Is asking the tenant adequate to qualify as “diligent inquiry”? Or does a landlord have an obligation to review and collect birth certificates, marriage certificates, and other similar records?

Also not scrutinized at Wednesday’s meeting was the timing of the affidavit’s submission compared to the signing of the lease. The wording of the ordinance says: “No owner of a residential rental unit …shall let for occupancy or let any such dwelling unit without first submitting a fully executed occupancy affidavit…”

That puts the prospective tenant in a position of having to sign an affidavit with personal information about family relationships with other tenants, before being able to sign a lease.

New state laws

The new legislation that prohibits cities from requiring that a rights and responsibilities brochure be distributed to tenants was passed by the legislature in 2020, but vetoed by Indiana governor Eric Holcomb. That veto was overridden earlier in 2021. [SEA 148]

The legislation included a catch-all prohibition that says a city can’t regulate “(8) any other aspects of the landlord-tenant relationship.” [SEA 148]

But HEA 1541, which was passed this year, shortly after the override of the SEA 148 veto, removes that catch-all prohibition in point (8).

So Bloomington’s proposed ordinance on occupancy affidavits appears to rely crucially on the removal of the catch-all prohibition in HEA 1541.

Responding to a question from The Square Beacon, assistant city attorney Daniel Dixon wrote in an email, “If the broad language of (8) remained in the law, I would anticipate it being used to challenge the occupancy affidavit.”

Dixon added, “However, there are issues which make it hard to anticipate whether such a challenge would have succeeded. For example, SEA 148 exempts regulations ‘authorized by an act of the general assembly.’”

Dixon concluded, “Because regulation of occupancy is through the City’s UDO, which is authorized by the general assembly, an occupancy affidavit may have been exempt from 148.”

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