HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/05/2009 - FIRST READING OF ORDINANCE NO. 051, 2009, AMENDING ITEM NUMBER: 28
AGENDA ITEM SUMMARY DATE: May 5, 2009
FORT COLLINS CITY COUNCIL STAFF: Beth Sowder
Felix Lee
Mike Gebo
SUBJECT
First Reading of Ordinance No. 051, 2009, Amending the City Code Relating to Enforcement of
Occupancy Limits.
RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
FINANCIAL IMPACT
There are no anticipated additional costs associated with the proposed code revisions.
EXECUTIVE SUMMARY
Since the last Code revisions to the occupancy regulation went into effect in 2007, staff has
identified an additional Code change and some administrative changes that would enhance their
ability to more effectively enforce the regulation. These mid-course changes are separate from the
comprehensive two-year review currently scheduled for Council work session on October 27,2009.
The Ordinance would amend the City Code to eliminate the existing requirement that an opportunity
be given to property owners to cure occupancy violations prior to the issuance of a citation.
City Code Section 19-65(a)(1) sets forth the procedures to be used by the City's Code enforcement
officers in enforcing civil infractions,including the occupancy regulation. The proposed amendment
to this Section would authorize enforcement staff to serve civil citations on violators of the
occupancy limit regulation without first serving a notice of violation. Two options are presented
for Council consideration:
Option 1: elimination of the notice requirement would apply to all violators of the occupancy
regulation; or
Option 2: elimination of the notice requirement would apply only to violators who previously
have been issued a notice of violation or citation for violation of the occupancy
regulation regardless of the location of the earlier violation.
Staff recommends adopting Option 1.
May 5, 2009 -2- Item No. 28
BACKGROUND
The City's Land Use Code relating to the occupancy limit regulation was last updated in late 2005
and became effective in 2007. The most significant revision decriminalized violations of this
regulation, that is, it reduced the violations from criminal misdemeanors to civil infractions.
Violations of this Code provision occur when more than the allowed number of people live together
in a dwelling unit. With two years of experience enforcing the occupancy limit regulation,staff has
identified a Code revision and some administrative changes that would improve enforcement
effectiveness.
In 2007, there were 147 occupancy cases processed; in 2008 there were 59. A two-year history of
cases for 2007-2008 is attached. (See attachment 1.) By making the Code revision and
administrative changes, the occupancy regulation is expected to be more effective.
Eliminating the preliminary notice of violation
Current Code provisions require staff to first serve a"notice of violation" for all civil infractions.
This allows the responsible party a reasonable amount of time to correct the violation before the City
can serve a citation on the offenders(property owners and/or tenants),unless the violation is a repeat
violation.
This provision has proven to be problematic. Some property owners (including those with no past
violation history) are aware that no action can be taken against them until they have been given
notice and an opportunity to cure the violation, so they put four or more unrelated tenants in a
dwelling unit until they are served with a notice of violation. They then"cure"the problem,at least
temporarily, by removing enough tenants within the timeframe to prevent a citation from being
issued. In essence, some owners know that they can over-occupy their property until they get
caught, and that they then have seven days to correct the violation without any consequences or
threat of receiving a citation.
This requirement is even more problematic when a civil infraction case involves an owner of
multiple properties. In such cases, the Municipal Judge has ruled that to qualify as a "repeat
offense" the violation must not only be repeated by the same property owner, but also be repeated
at the same property. This interpretation allows property owners of multiple properties to repeatedly
violate occupancy limits at different properties with no significant consequences because the City
must first serve a violation notice/order to correct before issuing a citation for any one property.
Owners of multiple rental properties can repeat the cycle of"violation/notice/cure" indefinitely
unless a repeat violation of the occupancy limit is discovered at the same property. Only then will
the owner receive a citation with the possibility of a fine.
While the vast majority of owners of rental properties comply with the occupancy limit,staff is often
unable to achieve corrective actions against repeat offenders based on the current interpretation of
the existing Code language. Staff believes that more property owners would proactively comply
with the regulation if there was a threat of a citation when found in violation,rather than waiting for
the violation notice and then complying.
To deal with this problem of enforcement, staff is recommending that Council eliminate the
requirement that property owners be notified and allowed time to cure this kind of violation prior
May 5, 2009 -3- Item No. 28
to the issuance of a citation. Staff believes that any mitigating circumstances relating to an alleged
violation can be taken into consideration when the investigating officer exercises his or her
discretion in deciding whether to issue a citation.
Options
Staff has developed two options for amending City Code Section 19-65(a)(1)as it relates to serving
citations:
Option 1: Applies to both first-time offenses and repeat offenses. Staff
recommends this option.
Option 2: Applies only to repeat offenses by the same person regardless of
the location of the violation.
Administrative Changes
In addition to the Code revision proposed above, staff is making the following changes
administratively to improve effectiveness of enforcement. Absent Council direction to the contrary,
staff intends to immediately begin implementation of these administrative enforcement changes:
1. Continue to request or seek license plate numbers of occupants. Vehicle logs from
neighbors have proven to be ineffective as evidence, while license plate numbers
have been helpful for investigations.
2. Require disclosure statements to be provided within four days of staff s request.
This will increase the accountability of property owners in providing Disclosure
Statements to their tenants at the time of lease signing.
3. Actively investigate cases prior to requesting the Disclosure Statement. Rather than
sending the"Request for Disclosure Statement"notice before the investigation,staff
will gather information and evidence first so that the violation is substantiated prior
to sending the notice.
4. Contact residents prior to issuing notices or citations. Other communities report
success using this practice, and it has been successful in Fort Collins as well.
5. Cite those persons that the evidence shows are most responsible for the violation.
Rather than just citing all tenants and the property owner, staff will gather
information from tenants, landlord and others in order to hold the appropriate
persons accountable.
6. Issue multiple counts for knowing violations. Multiple counts add up to more of a
financial liability and are therefore a greater deterrent.
May 5, 2009 -4- Item No. 28
Public Outreach
a. 1/21/09—ASCSU Senate meeting
The ASCSU Senate representative requested staff present this item to the Senate before
Council makes a determination on the proposed revision. Students are concerned about
getting evicted for exceeding the maximum allowed"three unrelated"occupants in a single-
family dwelling unit and having to absorb the increased rent for housing complying with the
occupancy-limit provisions. The general message from students was that they don't
understand why more than three unrelated individuals shouldn't be allowed to occupy a
house that has more than three bedrooms. (See Attachment 2).
b. The housing industry(Fort Collins Board of Realtors,and Colorado Apartment Association)
has been provided with detailed written materials. Staff has not received any comments
from the housing industry.
C. Article in the Coloradoan on March 23, 2009.
d. Article in April/May edition of Neighborhood News Newsletter.
e. Occupancy Ordinance Stakeholder Committee(consisting of representatives from ASCSU,
Fort Collins Board of Realtors, Colorado Apartment Association, CSU student/staff, LDS
church, and several different neighborhoods) discussion. This committee was concerned
with the "time to correct" period being only seven days if there's the possibility that no
Notice of Violation is given prior to the issuance of a citation.
f. 4/16/09 - On Campus CSU Occupancy Ordinance Forum.
Feedback received from CSU students regarding this proposed Code change was that
students are concerned about these mid-course changes to enforcement of the Occupancy
Ordinance occurring prior to the 2-year comprehensive review. They do not think that any
enforcement changes should be made prior to the Council review of the overall effectiveness
of the Ordinance.
ATTACHMENTS
1. Occupancy limit case history update.
2. ASCSU meeting agenda.
3. Powerpoint presentation.
ATTACHMENT 1
OCCUPANCY LIMIT CASE HISTORY
2007 2008 2009 YTD
TOTAL CASES OPENED 147 59 7
Over Occupancy Violation Substantiated 67 25 2
Over Occupancy Violation Unsubstantiated 80 34 3
Open Investigations 2
VIOLATIONS 67 25 2
Violations corrected without citations 53 - 19 0
Violations not corrected; citations issued 14 6 0 . 1
Open Violations 2
HEARING RESOLUTIONS 14 6 n/a
Defendant found liable by Referee/Judge 3 2
Defendant found not liable by Referee/Judge 3 1
Defendant admitted liability in pre-hearing agreement 3 3
Citations dismissed by City prior to hearing 3 0
Cases where tenants found liable; owners found not liable 2 0
CITATIONS ISSUED TO OWNER FOR NO/FALSE DISCLOSURE 5 9 1
Citations resolved by owner paying fine 4 5 0
Defendant found liable by Referee/Judge 1 0 0
Citations dismissed by City prior to hearing 0 4 1
1
City of
Fort Collins ATTACHMENT # 2
Rental Housing Code Revisions Up for City Council Decision
When: ASCSU Senate meeting
Wednesday January 21,2009
Time: 6:30 p.m.
Where: ASCSU Senate Chambers
Speakers: Felix Lee, Director Neighborhood&Building Services
Mike Gebo, Building Code Services Manager
CSU students are a significant part of our community. We are interested in your
input about two items recommended by City Staff for City Council's approval on
February 3, 2009.
A. Revisions to improve enforcement of the current Occupancy-limit Code:
Council would approve only one of two following options authorizing the City to
immediately serve a citation to violators:
Option A-1: Applies regardless of whether or not first-time or repeat offender; or
Option A-2: Applies only to repeat offenders.
B. Revisions to clarify definition of"family":
A family is exclusively EITHER, a family in which all members are related plus one
additional person; OR, a family is exclusively two unrelated adults and their dependants
plus one additional person. Both conditions cannot be "mixed and matched" together
to determine a legal family.
C. A voluntary process to encourage minimum health and safety standards in all
rental housing dwelling units:
Census data indicates a large number of rental dwelling units in the community that
have not been inspected or approved for minimum standards. A number of these may
not comply with the Occupancy Limit Code and/or be allowed by Zoning. These are
typically basement apartments for rent, that have been added to an existing home or
multi-family building and there is no official record of a building permit, inspection or
approval of the new dwelling unit. The City's goal is for all rental housing units to be
approved and inspected for minimum health and safety standards.
We want to hear your opinions and concerns . . .
• How do you feel about the proposed revisions to the Occupancy Limit Code?
• Are you concerned about the health &safety conditions of your rental residence?
• Any other thoughts,concerns or suggestions for us to consider?
If you have any questions or further input to share after this meeting, please contact us directly:
Mike Gebo at 416-2618 or mgebogfc og v.com.
Occupancy Ordinance
Proposed Enforcement Changes
City Council Meeting
May 5, 2009
Jeff Schieck - Planning, Development � Transportation Director
Felix Lee — Neighborhood & Building Services Director
Beth Sowder, Neighborhood Services Manager
�rt�ns
Options for Council Consideration
• Option 1 : Eliminate notice requirement for all
violators
• Option 2: Eliminate notice requirement only
for repeat offenders
�„F�rt
Staff Recommendation
• Staff recommends Option 1
— Used for blatant violations
— Used for repeat violators
—Additional tool to improve enforcement
effectiveness
Oty of ollins
Background Information
• Occupancy Ordinance updated — 2005
• Updates effective — 2007
• Violations decriminalized
• Disclosure Statement requirement
• Comprehensive 2-year review scheduled for
10/27/09
CC^^City�of
Rins
V%
2007-2008 Occupancy Cases
160
140
120
100
❑total
80
❑substantiated
60 ■ unsubstantiated
40
20
0
2007 2008
city of
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Background Information
• Two years of enforcement shows:
— Many cases indicate landlord knowingly
over-occupying their rentals
— Landlord and tenants waiting for notice of
violation to comply
— No immediate or significant consequence
for over-occupying
�.�rt�ns
.,r� � ih11'._,
'�,
Why Eliminate Notification
Requirement?
• Provides incentive to comply.
• When repeat or blatant violation, provides
option to issue citation prior to notice.
• Removes the cycle of "violation/notice/cure".
• Creates a more equal playing field.
• Able to consider mitigating circumstances.
Additional Administrative Changes
1. No longer request vehicle logs.
2. Require Disclosure Statements provided
within 4 days.
3. Actively investigate violation prior to
requesting Disclosure Statement.
4. Direct interviews of residents.
5. Cite person(s) most responsible for violation.
6. Issue multiple counts for blatant violations.
Of [tins
Public Outreach
• ASCSU Senate meeting — 1/21/09
• Housing Industry
• Article in Co/oradoan
• Article in Neighborhood News
• Occupancy Stakeholder Committee
• On-campus CSU Occupancy Ordinance
Forum — 4/16/09
Cjtyaf otlins
Specific Feedback Received
• Long-term Residents — in favor of tools that make
enforcement more effective.
• Stakeholder Committee —concerned about length of
time given to correct the violation if no "Notice"
issued.
• CSU Forum — Concern with any mid-course changes
prior to the 2-year Comprehensive Review.
Of ft
-wlf.;
Conclusion
Staff is recommending Option 1 to effectively
enforce the Occupancy Ordinance.
Options for Council consideration:
• Option 1: Eliminate notice requirement for all
violators
• Option 2: Eliminate notice requirement only for
repeat offenders
City of�"trortolli ns
ORDINANCE NO . 0519 2009
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING THE CITY CODE AND LAND USE CODE
RELATING TO OCCUPANCY LIMITS
WHEREAS , Section 3 . 8 . 16 of the City ' s Land Use Code (the "LUC"), which establishes the
maximum occupancy for dwelling units in the City, was last updated in late 2005 by the adoption
of revisions that became effective in 2007 ; and
WHEREAS , violations of LUC Section 3 . 8 . 16 are classified as civil infractions under LUC
Section 2 . 14 .4(B) ; and
WHEREAS , the enforcement of the occupancy limit established in the LUC is complicated
by the fact that Section 19-65 of the City Code currently requires the City ' s Code enforcement
officers to serve a "notice of violation" upon any party who is suspected of committing a civil
infraction, including occupancy violations, and allow that person a reasonable period of time to
correct the violation before issuing a citation to the violator; and
WHEREAS , the only exceptions to this notice requirement are if. ( 1 ) there is reason to
believe that the violation presents a threat to the public health, safety or welfare ; or (2) if the damage
done by the violation is unrepairable or irreversible ; or (3 ) the violation is a second or subsequent
violation by the responsible party; and
WHEREAS , the Municipal Judge has ruled that the "second or subsequent violation"
referenced in this provision of the Code must have occurred at the same location as the new
violation; and
WHEREAS , this interpretation allows property owners of multiple properties to repeatedly
violate occupancy limits at different properties with no significant consequences because the City
must first serve a violation notice/order to correct before issuing a citation for any one property; and
WHEREAS , irresponsible owners of multiple rental properties can repeat this cycle of
"violation/notice/cure" indefinitely unless a repeat violation of the occupancy limit is discovered
at the same property; and
WHEREAS , while the vast majority of rental property owners comply with the occupancy
regulation, some do not, and those who take advantage of the foregoing notice requirement to avoid
the issuance of a citation gain an unfair competitive advantage over those who comply with the
regulation; and
WHEREAS , the City Council believes that revising this Code provision would allow for
more effective enforcement of the occupancy limits and would be in the best interests of the
residents of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 19-65 of the Code of the City of Fort Collins is hereby amended to read as
follows :
Sec. 19-65 . Commencement of action , citation procedure.
(a) Officers shall have the authority to initiate enforcement proceedings
as provided below.
( 1 ) An officer who has reasonable grounds to believe that a responsible
party has committed a civil infraction under this Code is authorized
to serve a notice of violation to the responsible party. Except as
otherwise provided in this Code, the officer shall set a reasonable
time period within which the responsible party must correct the
violation. This determination shall be based on considerations of
fairness, practicality, ease of correction, the nature, extent and
probability of danger or damage to the public or property, and any
other relevant factor relating to the reasonableness of the time period
prescribed. An officer may immediately serve a civil citation to a
responsible party, without prior notice, if there is reason to believe
that the violation presents a threat to the public health, safety or
welfare, if the damage done by the violation is irreparable or
irreversible, or if the violation is a second or subsequent violation b
the responsible party.
Option 1 . alleged violation is of Land Use Code Section 3 . 8 . 16 pertaining to
occupancy limits .
Option 2 . alleged violation is of Land Use Code Section 3 . 8 . 16 pertaining to
occupancy limits and the responsible party has previously been
issued a notice of violation or citation for violating said provision of
the Land Use Code at any location within the City.
(2) The citation form shall include, but need not be limited to, the
following :
a. Date and time of issuance.
b . Name and signature of officer.
c . Name and address of the responsible party.
d. Code section for violation charged.
e . Brief description of the nature of the violation, including
location, date and time of violation and description of the
actions required to correct the violation.
f. Amount of the applicable civil penalty and costs, assessments
and fees .
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g. Procedure for the defendant to follow in paying the civil
penalty, costs, assessments and fees or contesting the citation.
h. Notice that additional citations may be served for each day
that the applicable violation is found to exist.
i. Notice that failure to pay the civil penalty, costs, assessments
and fees within the time allowed and failure to request a
hearing within ten ( 10) days of service of the citation shall
constitute a waiver of the responsible party's opportunity for
a hearing, and that, in such case, judgment may be entered up
to the amount stated on the citation together with any court,
abatement or removal costs, as applicable .
(3 ) The officer may require that a responsible party or any person
receiving a citation provide proof of identity and residential or work
address .
(4) The officer shall attempt to serve the citation to a responsible party
at the site of the violation. If no responsible party can be located at
the site of the violation, a copy of the citation shall be served by mail
to the responsible party via first class mail at any last known address
of said party in the records of the City or County and a copy shall
also be left with any adult person residing or working at the site of
the violation. If no adult person is found at the site and the violation
occurred on private property or on property for which a responsible
party has responsibility under any other ordinance or the violation
involves a vehicle or trailer as the nuisance, then a copy of the
citation shall be posted in a conspicuous place on the property or
attached to the vehicle or trailer, whichever is applicable .
(5 ) The officer or inspector shall attempt to obtain the signature of the
person to whom he or she served the citation; however, if the citation
is mailed or posted or if the person fails or refuses to sign the citation,
such failure or refusal shall not affect the validity of the citation or
any subsequent proceedings .
(6) Proper notice shall be deemed served on the date of receipt by the
responsible party if personally served, or upon the fifth day after
mailing, attaching or posting of the citation.
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Introduced, considered favorably on first reading, and ordered published this 5th day of May,
A . D . 2009, and to be presented for final passage on the 19th day of May, A.D. 2009 .
Mayor
ATTEST :
City Clerk
Passed and adopted on final reading on the 19th day of May, A . D . 2009 .
Mayor
ATTEST :
City Clerk
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