Dealing with living conditions

CHENEY – The question of home occupancy has dogged the city for years.

On Monday, Jan. 6, City Council and Planning Commission members held a joint session to discuss options for dealing with the issue that, in the words of Mayor Chris Grover, had generated more complaints the past few years than any other issue in Cheney.

The issue revolves around city codes describing what a family is — particularly a “functional family.” A functional family as defined under city codes is “a group of unrelated persons, limited to not more than two adult persons (together with their respective family members), living together as a single housekeeping unit and sharing and operating a unified and common household.”

City codes also limit the number of unrelated individuals who may reside in a residence beyond the family or functional family, which in the case of R-1 single-family zones is one person. Codes also presume more than two unrelated adults living together is not a family but a group of “casual acquaintances living together for a limited duration.”

The burden of proof these individuals are not a family falls on the occupants, but the city has not been successful in enforcing this requirement and levying remedies. The result has led to issues with noise, trash, parking and at times crime.

“It’s a contentious code we have and it’s very difficult to legally enforce it,” Grover told the group Monday.

Part of the ordinance’s legality stems from court rulings on the definition of functional family. In a memo to Grover, Witherspoon Kelly attorneys Stanley Schwartz, Cheney’s city attorney, and Lindsay Kornegay summed up a 1995 U.S. Supreme Court ruling in a Fair Housing Act case by writing “provisions that cap the number of people in a dwelling, based upon a perceived relationship not only could violate the Fair Housing Act where there is discrimination against a protected class but also may not effectively address off-site or neighborhood impacts from overcrowding a residence and too many parked vehicles.”

“Kind of throws the idea of residential zoning out the window,” Planning Commission member Dan Turbeville said.

“You can’t say what a family looks like,” Kornegay clarified at the meeting.

Planning Commission Chair Rick Mount said enforcing such an ordinance against the occupants of a home — which in these cases are likely college students — wouldn’t be effective. The answer is directing enforcement actions at the property owners.

In that respect, staff proposed several residential programs. One would be enforcement of existing regulations in the Uniform Housing Code and National Property Management and Maintenance Code that address occupancy from a safety aspect, limiting the number of people who can live within a specific square footage.

Another approach is creation of a rental registration and inspection ordinance. Landlords would be required to register their houses and have them inspected to ensure specific health and safety standards are met prior to being allowed to rent the property.

A fee would be charged that would cover the cost of inspections, and any violations arising from the inspection or after would result in fines imposed on the property owners. Cities such as Yakima and Bellingham have these programs, senior planner Brett Lucas said, and courts have upheld these as constitutional because inspections can be done by private companies as well as city building inspectors.

Other approaches will be considered by the commission and council in the coming months. For now, Grover summed up the agreement of Monday’s meeting that the code’s functional family provision be eliminated.

“We need to change the regulation,” Mount added. “We have a non-functional, functional family.”

John McCallum can be reached at jmac@cheneyfreepress.com.