No limits

City occupancy policy to focus on side effects

By Nathaniel Smith

The Times-Independent

The Moab City Council discussed the idea of adding occupancy limits to the municipal code but ultimately decided it would be too difficult to enforce. At its regular meeting on Tuesday, Jan. 8, the council requested city staff draft more stringent regulations regarding nuisances like noise as a way to address residents’ concerns about overcrowding allowed by the lack of an occupancy limit.

Assistant City Manager Joel Linares told the council that occupancy limit rules are governed by the Fair Housing Act of 1968, which was aimed at preventing landlords from discriminating or creating unsafe living conditions. Despite that intent, some cities are implementing them “as a way to curtail some of the issues they’re having in their neighborhoods,” said Linares. “There’s no hard-and-fast rule when it comes to occupancy limits,” he noted. “They’re tricky. They’re hard to enforce.”

Linares said the most common form of occupancy limits is the two plus one rule, which states a dwelling can be occupied by two people for every bedroom, plus one additional person. Linares pointed out that rule can break down based on bedroom size or the presence of children. “It’s a really dicey proposition,” said Linares. “We need to narrow down on what the goal is for the occupancy restriction.” He mentioned another type of limit could be based on square footage, which typically means bedrooms must be at least 50 square feet per person.

Occupancy limits are particularly hard for a municipality to enforce, not just because of the resources and personnel required, Linares said. “If you actually start trying to evict people under these restrictions, the due process and level of proof that’s required can get really intensive,” he explained, noting how high the burden of proof is for what he called “government actors.”

Mayor Emily Niehaus said the occupancy limits could be a way to address problems caused by the city’s decision to replace the term “family” with “household” in the code late last year. She mentioned concerns from the community about how the vague definition of household could theoretically allow for “an unlimited number of unmarried people that can reside in a unit together.”

Linares asked the council members if they were more concerned with possible side effects of high-occupancy levels such as noise, taking up on-street parking and garbage, or the idea of overcrowding in general. Council Member Mike Duncan’s opinion was that the side effects are the main issue. He suggested implementing occupancy limit guidelines instead of a firm rule. “If we do nothing, it invites abuse,” Duncan said.

Council Member Rani Derasary agreed that nuisance violations are the major issue, but she s is also concerned with other things like health and human rights. She said she wouldn’t feel comfortable moving forward until those concerns are addressed. Linares pointed out that the city has no authority to enforce health violations and that they would need to work closely with the Health Department to address those worries.

City Manager David Everitt pointed out that the city is only allowed to conduct a spot inspection for a violation during the initial business licensing process or if there is a complaint filed. Everitt also said “education up front” would be the most effective way to prevent problems from cropping up in the first place.

Linares said that occupancy limits, along with other regulations, would “help create a culture.” Because of the difficulty of enforcement, Linares thought an occupancy limit would be sending a message more than anything else. Linares noted that landlords and property owners would be unlikely to realize the difficulties of enforcement and would just know that the restrictions exist.

Council Member Karen Guzman-Newton responded, “So basically you’re saying that we would incorporate it yet potentially not enforce it.” Linares responded, “It would be there to use; we would try and go other routes first.”

Mayor Niehaus asked Linares for his personal opinion on whether an occupancy limit should be implemented. “I would stick to the nuisance ordinances and business licensing,” Linares answered. “We are a city of the fifth class. We have small numbers of employees and we have to be realistic as to what we can do with the number of people we have… I would avoid the occupancy restrictions. I just don’t think we have the manpower to enforce them.”

“We could incorporate it and create a myth,” proffered Guzman-Newton. Duncan then requested that city staff draft new standards for nuisances and the business licensing process, and added, “we can create the myth later on if we decide to do so.”

The council decided to review the municipal code and offer suggestions about what changes are needed. Council Member Kalen Jones said changes should be based on suggestions from the community. Sommar Johnson from planning and zoning noted that the weed ordinance is vague, but she thought regulations governing junk and debris, landscaping and noise are all solid.

After serious consideration, the council decided not to pursue occupancy limits. Instead, the city will focus on tightening nuisance regulations and implementing a new business licensing procedure that will require owners who rent out property where they do not reside to acquire a license no matter the size of the units.