Myths R Us Number Two: Mr. Lukoff Expounds.

While I was away for the holidays, the Bellingham Herald and the Whatcom Indy published apparently similar editorial pieces by Aaron Lukoff, an attorney practicing here in Belllingham, on the issue of illegal rooming houses. I have reproduced Mr. Lukoff's comments below (in blue) and inserted my riposte. I previously dealt with most of these tired canards, which have been bandied about by the city government and landlords for years, in my first blog entry on Myths R Us. (Click here to read that entry).

"Two months ago, the Bellingham City Council re-examined an old ordinance on housing which prevents a home from being occupied by more than three unrelated people. I testified before the Bellingham City Council against this proposal to enforce this antiquated municipal law."

Testified? Well, not quite. You and I and about a half dozen others spoke for three minutes each during the citizen comment period at the beginning of the 8 October 2007 City Council Meeting. Not what I would call testimony, which is a term normally reserved for a statement made under oath. If you, Mr. Lukoff, have made such official testimony about which I am unaware, please let me know.

"I believe the law is discriminatory, likely illegal and could purge many low income people from their homes including single mothers and the elderly. The law makes it difficult to obtain housing for many groups which are different than (sic) the “traditional” Ozzie and Harriet family."

I have, in the last 6 years, yet to come across or to receive a report on any illegal rooming house containing groups of single mothers and the elderly. If your objective is to ensure adequate and safe housing for these categories of Bellingham citizens, then I suggest you look to the city government which has been woefully lax in providing an atmosphere in which low cost, affordable housing is available other than on an illegal basis by creating a rooming house in a single family home. Instead the city has allowed our single family neighborhoods to become sponges, in an uncontrolled infill process.

"The law is illegal as it attempts to deny housing based on “marital status” and “family status” both of which are irrelevant to the impact on neighborhoods. There are many “violators,” with little to no negative impact on the surrounding neighborhoods."

In the previous paragraph you stated that the law is “likely illegal” but in the space of several sentences you state the code in question has become definitively illegal. The fact is that there are jurisdictions, notably Indiana, where the courts have ruled on just this question. From the Indiana Supreme Court comes this: “The enactment of zoning ordinances that make distinctions based on familial relations of the users of residential real estate is an integral component of implementing … legislative objectives.”

"Enforcing this will make violators out of honest citizens, where no remedy is called for, or will leave the city in the awkward position of enforcing this selectively."

Who is advocating selective enforcement? Honest citizens are just that until they break the law, after which they are no longer honest citizens. The remedy is the creation of affordable housing and ridding the city of these illegal housing carbuncles festering on the body of our municipality. Instead we are faced with weeping and gnashing of teeth on topics about waterfront development, which will have no effect on growth issues, or the height of overpriced condominium buildings in Fairhaven, where these units for the well-to-do cannot ever solve the true problem of infill or affordable housing.

"Thus, two married heterosexual couples are able to legally share a house. Yet, two unmarried couples or two gay couples who attempted to share the house would be barred from doing so by the city. The unmarried couple would be forced to become married to qualify for housing. The gay couple would be barred in this situation in acquiring housing, as marriage is not an option for them in Washington State. The American Civil Liberties Union has objected to the rule in many states which have considered enforcing it. Bellingham’s ordinance banning housing based on marital status is illegal as Washington State just passed RCW 49.60.223, which prohibits discrimination in housing based on sexual orientation. Bellingham’s ordinance violates Washington anti-discriminatory law, as gays are not allowed to marry, and thus, are selectively barred from housing. Regardless of the city’s opinion of this state law, they are bound to abide by it."

The ACLU notwithstanding, only a court decision will provide an answer on these issues. Simply ignoring the code or trashing it will not solve the issue.

"Enforcing Bellingham’s “more than three unrelated” ordinance would also cause a great number of low income people in our city to lose their housing. The fact is that most Bellingham residents cannot afford a $324,000 home, which is the median price of a home in the city. Currently, half of the residents in Bellingham are renters. Attempting to enforce this economically exclusionary ordinance would cause many elderly, single mothers and low income residents to lose their housing.

Some large houses in Bellingham are more than 3,000 square feet and have been shared by a number of people for decades. Forcing out the renters in these houses would leave them legally habitable by the wealthy alone. In essence, the “more than three unrelated” rule makes housing difficult to acquire unless one is wealthy and in a traditional marriage."

Don’t blame the zoning ordinance for all of the above, which is mainly due to the lack of affordable housing. The answer is not to twist our zoning ordinances to fit a situation which should be remedied by strong action on the part of the city. Until such time, the much vaunted “character of Bellingham neighborhoods” remains a cruel joke on homeowners who see their neighborhoods deteriorate and their housing values decrease. Lest we forget, many of the homeowners who are affected by illegal rooming houses on their streets are those of modest means who live in homes having much less than 3,000 square feet of living space and costing much less than the median $324,000. Also, lest my readers miss the point, the median home price means that half the homes cost less than $324,000.

"As an example, a married couple with four rowdy teenagers would enjoy legal protection under Bellingham’s housing ordinance. Yet four elderly residents who pooled their money together to rent a house would be barred from doing so. Thus, the “more than three unrelated” rule has no relation to the goal it seeks to achieve. More pointedly, Bellingham’s “three unrelated” ordinance is illogical."

As far as I can tell, the zoning code seeks to control densities and has nothing to do with rowdy teenagers, nor should it.

"If Bellingham city officials are concerned about parking issues or noise violations related to a small portion of Bellingham residents they should increase enforcement and increase fines for these violations. City enforcement action should be focused on behavior, not on family or marital status. The ordinance does not accomplish the goal it is intended to achieve."

You keep talking about the goal of the ordinance. Again, the ordinance on single family homes is there to provide a means to limit the number of people who live in an area. True, some families are larger than others, however, the city has to deal with average households in its planning processes. Noise, litter and parking enforcement actions are not the answer to uncontrolled infill.

"The courts would do well to strike this ordinance down."

And then what?

For all your concern about the single mothers, the elderly, the low-income workers, etc., you proposed no solution to the crisis of affordable housing except the status quo wherein illegal rooming houses continue as totally uncontrolled, unlicensed and otherwise unregulated dwellings. Groups of students and low-income workers will continue to live in houses where the electrical, plumbing and other safety elements (e.g. smoke and carbon monoxide detectors) are never inspected. Homeowners will continue to see the value of their investments eroding and the quality of life in their neighborhoods deteriorating.

Recently, one of Bellingham's citizen's made some very good points regarding Mr. Lukoff's article in a letter to the editor of the Herald. Here is the letter in its entirety:

"On the Dec. 16 opinion page of The Bellingham Herald, Aaron Lukoff made a very emotionally compelling argument for the courts to strike down the city ordinance against no more than three correlated people in a singlefamily home.

However, Lukoff’s first premise is that there is something inherently discriminatory about an ordinance that negatively affects some people. The consequences of this would be that all permits and zoning would be useless unless no one was negatively affected. Clearly, that won’t work.

I was a single mother living with one child in a single-family home with two renters at times. This was a perfectly legal situation that helped me financially. Three elderly people could share a house. Perhaps, two gay couples could not, but a social contract might suffice for a marriage, so that’s one way to go.

The purpose behind the ordinance in all cities is to protect people who expect to live among neighbors who operate as a family, not a fraternity house. Fraternities should be on campus. In areas of multi-family zoning, rooming houses could be licensed and behavior controlled. Let’s try to go that way.

Brenda E. Brooks"

A final note: In the interest of openness and forthrightness, it would be useful to know if Mr. Lukoff's law practice on landlord/tenant issues involved representing the landlords or the tenants.