[BoulderCouncilHotline] Occupancy Regulations

[Wallach, Mark]

A suggestion has been made that Council impose a moratorium on enforcement of our occupancy regulations, pending a full review of those regulations and passage of potential amendments altering those requirements. This request has been made following the defeat of the proposed Bedrooms are For People ordinance on November 2. On this subject I have a number of thoughts:

First, I want to thank Rachel Friend for her clarifying and informative Hotline post with respect to the suspension of enforcement of occupancy restrictions and any future conversation regarding occupancy rules. As Rachel noted, our current less-than-robust enforcement policies essentially renders the request for a moratorium on enforcement moot, and any future conversation regarding changes to occupancy limits must be mindful of the community’s decision in the election recently concluded.

With respect to those results, some people have complained that the election was close. Here a bit of perspective is in order. Elections are binary proceedings, and in the absence of actual fraud (see Trump, Donald) the results are not rendered less dispositive based on the margin of victory. And in this case the margin was hardly that close. In fact, in terms of votes the margin of victory was almost 3 times the margin of victory in the entire State of Florida in the Presidential election of 2000, a result which determined the unhappy and dismal outcome of that national contest. BAFP was a hotly contested issue, and the community rendered a clear decision as to their preference. As in all electoral contests, many of the voters would have preferred a different result, but that  does not negate the validity of the community’s decision. The same would be true had BAFP passed by a similar margin. Or even a lesser one.

And while our enforcement of these regulations is hardly vigorous, a moratorium on all enforcement would have been contrary to the community’s determination. Implicit in any  ordinance is that it is enforceable; to entirely suspend enforcement is to essentially suspend the ordinance. And that is in direct contradiction to what the voters decided 3 weeks ago.

While it is certainly the Council’s prerogative to add a discussion of occupancy limits to our 2022 work plan, I agree with my colleague that any proposed modifications to our current ordinances must be done in the context of what the community determined in the 2021 election. Had BAFP passed, the Council would have been prohibited from passing any ordinance that was contrary to its essential purpose (and even then, any such amendment would have required a vote of 2/3 of the Council). I would argue that the vote to reject BAFP should also receive substantial deference (and in this statement I speak only for myself and do not infer agreement from any other member of Council).  Does this mean that no changes are possible to our occupancy ordinances? No, it does not. But it does mean that the Council should regard itself as not at liberty to utilize its ordinance power to enact that which was defeated, or something substantially similar. I believe that doing so would be damaging to the Council’s credibility and standing in Boulder,  and I would urge us not to follow that path.

If there are improvements to be made to our occupancy regulations that are consistent with the community’s decision, or in ways that improve housing affordability, that would certainly be a conversation worth having. Likewise for understanding how other college towns have addressed the problem, to see if there are policies that could be applicable here. But while it is within our power, it is also well above our pay grade, to institute occupancy regulations that would vitiate the electorate’s judgment on this matter.

On any given issue it is often difficult to navigate through the voices raised at Open Comment, Public Hearings and in emails, as well as our own views, to determine the will of the community and the best direction to follow. In this instance a specific question was asked of the entire community, and more than 33,000 voters responded. That question has been answered, and I believe that it is our obligation to respect the answer we have been given.




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