Mar 122008
Authors: Seth Anthony

“A recent challenge to the three-unrelated law reveals- that it’s not just a bad idea, but that it may also violate the First and Fourth Amendments.”

A little more than a week ago, a Fort Collins municipal judge considered and turned down a challenge to Fort Collins’ now-infamous “three-unrelated” law.

I’ve written in the past about how this law makes little sense.

By limiting people to three to a house, it effectively spreads “problem renters” across a greater number of houses.

It ignores the fact that the population of a house is only loosely tied to its status as a “nuisance,” and, because a landlord has to cover fixed costs whether they rent to three or six people, three-unrelated effectively drives up rents.

A recent challenge to the three-unrelated law reveals that it’s not just a bad idea, but that it may also violate the First and Fourth Amendments.

Under our constitution, governments can’t just arbitrarily institute whatever standards they want.

They must first show that there is a compelling governmental interest in enacting a law.

For decades, Fort Collins and other cities have used public safety and parking congestion as justifications for occupancy limits. However, laws must meet an additional test; they must be “suitably tailored” – not ineffectively broad or overreaching.

And occupancy limits have been struck down as overreaching and ineffective in the past.

A 1971 New Jersey court, for instance, determined that an occupancy regulation “precluded so many harmless dwelling uses” that it became “sweepingly excessive, and therefore legally unreasonable.”

Rather than simply creating strict limits that apply to everyone equally, though, three-unrelated uses family relationship to define what living arrangements are permissible.

Fort Collins does this despite the fact that courts have repeatedly determined that social and marriage arrangements are part of the right to free association guaranteed in the First Amendment.

The right to free association means that people never become criminals simply because of the way they choose to associate – or not to associate – with others.

And yet our town treats unmarried people differently from married people, by creating different standards for these different classes of people.

In addition to the First Amendment problems with free association, there’s also a Fourth Amendment problem with the use of inspections to verify occupancy.

The Fourth Amendment, which requires that governments obtain warrants, certified by judges, before searching private property, is the foundation for our assumptions of personal privacy and security.

Here’s the problem with three-unrelated: In the earlier mentioned case that went to court, a household was suspected of violating the three-unrelated law because of the cars parked around the house. A city employee showed up and was granted permission to inspect the house.

During the inspector’s first visit, the city didn’t find evidence that there were more than three occupants. However, on the second visit, the house’s occupants denied the city inspector access.

Without a warrant, signed by a judge and specifying evidence, you’re not required to let government employees into your home. The city didn’t have a warrant, and so, under the Fourth Amendment, there was no legal way for them to force themselves into the house.

After being denied access, the city then cited the house for a violation of three-unrelated.

Because the occupants of the house asserted their legal rights under the Fourth Amendment, they were cited for violating another law.

The legal brief puts the problem very succinctly: “It appears that city employees, not sworn officers, demand entry and inspection, without judicially issued warrants, then cite residents who decline access to their homes.”

A municipal judge disagreed with these constitutional objections, but they’re serious questions about the law and merit a thorough and detailed analysis. Fortunately, the homeowner plans to appeal the ruling to district court.

Here’s hoping higher courts see things differently.

Seth Anthony is a Chemistry Ph.D. student. His column appears Thursdays in the Collegian. Letters and feedback can be sent to letters@coll

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