Maximum occupancy 

Despite its passage, ordinance battle isn’t over yet

After nearly three hours of public comment and another two hours of debate, the Missoula City Council adopted a controversial occupancy standards ordinance Monday night. But far from closing the book on this issue, Monday’s vote was only the end of one chapter in the ordinance’s ongoing story.

Notably, Mayor Mike Kadas promised to veto the ordinance, which would limit the number of unrelated people who could share a single home. Even a half a block away from City Hall, it was clear this city council meeting would be atypical. Students, landlords, lawyers and council members clogged the building’s double doors on the way in, only to jam the council chambers once inside. By 6:45 p.m., the chamber’s 200 chairs were already full. By the 7 p.m. start time, citizens spilled into the aisles and crowded into the back.

“We do have one little public hearing tonight,” joked the mayor to audience laughter. Then, more solemnly, he asked, “How many of you plan to testify here tonight?”

At least 60 to 70 hands went up. When the public comment period arrived, a few of the hand raisers sat quietly while the majority, more than 50, added their opinions to the public record.

Economists, lawyers, and real estate agents presented conflicting theories on the future of housing costs and vacancy rates in Missoula if the standards were to pass. Meanwhile, University-area homeowners recited anecdotes of ongoing parking problems, unruly parties, and overall neighborhood degradation. Administrators from nonprofit group homes and shelters, many of whose organizations were exempted from the ordinance in committee the previous week, restated their objections, saying that the standards would only decrease affordable housing for low-income residents. And more than a dozen speakers addressed the standards’ legality or illegality. During which the council listened intently.

“I thought the testimony was good on all sides,” said Ward One Councilwoman Lois Herbig, who later voted against the ordinance. “The testimony was great. What didn’t jive with me was all the jargon that went on during the two-hour council discussion.”

When the deluge of public comments subsided, the council began its debate, which ranged from cool logic to caustic opinion.

Ward Two Councilman Jim McGrath picked up the principal theme of legality, asking city staff and City Attorney Jim Nugent if the ordinance would stand against state and federal laws.

Mary McCrea of the Office of Planning and Grants affirmed her agency’s opinion that the ordinance violates “the constitutional rights to privacy in the Montana State Constitution,” as well as “the Montana Human Rights Act.” City Attorney Jim Nugent professed not to know all the laws the ordinance potentially violates, but listed the equal protection clauses in both the U.S. and the Montana constitutions and the Montana Human Rights Act as laws that could potentially doom the ordinance.

One of the few clear legal repercussions noted was that if the city is sued over the ordinance, the city attorney’s office won’t be able to defend the city.

“We had so many legal concerns and criticism about it [the ordinance] that we had to advise the council that it has potential legal problems,” Nugent said. “And therefore, because we have advised them to the contrary it’s real difficult to then, under the code of professional ethics, take the other position.”

Both McGrath and Nugent also voiced concerns over the potential cost of a legal battle.

“It could be pricey if our concerns were upheld by the Human Rights Commission or the courts,” added Nugent.

Both Ward Six Councilman Clayton Floyd and ordinance drafter Rick Baskett disagreed with Nugent and McGrath. “It’s a complex issue and there are a lot of little nuances that deal with legal interpretation,” says Floyd. “While I respect Jim Nugent, it is his opinion and there have been at least three other attorneys that have looked at this document from the proponent’s side who have felt like it was good to go.”

The drafters also worked with council members and the city to revise the document making its ability to stand up to legal challenge even stronger, added Floyd.

Later in the debate Mayor Kadas weighed in. He outlined the city’s various efforts to address the proponents’ complaints that nothing was being done to preserve the feel of their neighborhoods. He spoke of the updated city guide to municipal ordinances, “quality of life” police responses to disturbances, and traffic roundabouts installed in the university area to slow traffic. Then he cut to philosophical core of the opponents’ complaints.

“We’ve talked about whether this ordinance would discriminate or not, but really that discussion has been focused on whether it legally discriminates or not, and discrimination is a concept that goes beyond just what’s legal and what isn’t,” Kadas said. “I have a problem with the kind of discrimination that is proposed here, whether it’s legal or not. I just don’t think it’s appropriate.” Kadas also objected to the stereotyping of students that he believes the standard insinuates.

“By passing this we are judging them [students] as being poor neighbors, and I think in the vast majority of cases that is not the case,” he said. “That kind of prejudgment bothers me.”

Kadas said he plans to veto the ordinance before the next Monday’s council meeting. To overturn the veto the council members need eight votes. The proponents have until then to sway two council members.

“I think the task before the proponents is to clarify for some of the members of council some of the [standards’] points,” says Floyd. “Maybe that will make it easier for some people to vote for it.”

Council members who voted in favor of the ordinance were Anne Kazmierczak of Ward Two, Lou Ann Crowley of Ward Three, Myrt Charney and Jerry Ballas of Ward Four, Jack Reidy of Ward Five and Clayton Floyd of Ward Five. Voting against it were Lois Herbig and John Engen of Ward One, Jim McGrath of Ward Two, John Torma of Ward Three and Scott Morgan of Ward Five. Ed Childers of Ward Six abstained.

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