Let people have a say in occupancy limits

By Sara Campbell. Also published as a "Letter" in the Boulder Weekly on August 13.

"We are a young family living together—a sister, her husband and a brother—who came to Boulder for school over 10 years ago, and have recently decided to buy a home and settle down. We rent out our extra bedrooms to make ends meet. Local politics seemed like very boring legalese until we heard of the Bedrooms Are for People ballot initiative just two months ago. A few weeks ago, we stayed up after midnight watching the City Council meeting to see whether, after hours spent standing outside a grocery store collecting physical signatures during a pandemic, all those signatures would count. That night, we realized the Council sometimes puts a lot of the boring stuff first, then put the controversial topics closer to midnight on Tuesdays, after working professionals and families with kids should already be fast asleep.

Few people in Boulder have had the need nor the time to read all the way to Section 37 of the City Charter, then even further to Section 137. Even fewer have the skill to understand the potential implications of the fact that, in Section 37, 'Charter amendments are included in the list in the first sentence, but Charter amendments are not included in the list in the second sentence.' Perhaps, if one is a lawyer, one can more credibly apply the 'rules of statutory construction' to outmaneuver a ballot initiative that one does not agree with. We’re not really sure what a grassroots campaign is supposed to think when the city attorney says, 'we will honor the August 5 deadline.' It seems that ordinary citizens don’t have much of a voice in local politics without being a former council member or lawyer.

Furthermore, when everyone involved claims to care about affordability and the environment, it is difficult to read between the lines of bad-faith arguments with no basis in fact. The verbal and legal gymnastics in the recent Boulder Weekly Guest Column, 'Boulder’s occupancy limits are not discriminatory' almost make the argument sound reasonable. But, one of us studies the law, and so we feel a responsibility to call this op-ed out for conflating the common understanding of phrases like 'discrimination' and 'class of people' with narrow legal definitions. The letter hurls legalese at the readers to bolster its authority, to scare them into believing that Bedrooms Are for People is making trouble where they truly are not.

The current occupancy limits do statistically have disparate impacts on classes of people that have historically been the target of discriminatory legislation — renters, poor people, black and brown people, and members of the LGBTQIA+ community. In the common understanding of the word, these laws are discriminatory, because they regulate a group of people based on their identity instead of regulating specific individuals’ behavior. This is true even if the people mentioned are not currently designated as a “protected class” by local, state or federal law.

One can sue to strike down a law as unconstitutional if it discriminates against citizens of a protected class, either on its face, or in its effect and application. In that case, the government bears the burden to show that the law is necessary to serve a compelling governmental interest. Very few laws ever survive such constitutional challenges, which is why the letter attempts to argue that the groups who are disparately harmed by Boulder’s existing occupancy limits are not designated as 'protected' under any federal, state or local law. If these people were protected by existing law and we were challenging the occupancy law in court, the law would in all likelihood be struck down as unconstitutional.

Bedrooms Are for People believes that Boulder’s current occupancy laws are flawed in several ways, one of them being their clear disparate effect on certain groups of people, especially those who are less economically advantaged. But it does not follow that 'Bedrooms' is striving to designate a new legally 'protected class.' That assertion is completely false. This grassroots campaign has always been about letting the Boulder electorate decide what is best for our evolving city. The current City Council has fought our right to let people vote on the measure; we are working to make sure everyone in Boulder can weigh in on this important housing issue."

— Sara Campbell Boulder