Boulder City Council, in response to a housing shortage, raises occupancy limits with landmark vote

Stacy Feldman at The Boulder Reporting Lab (Via AP Storyshare)

The Boulder City Council voted to raise the city’s occupancy limits on Thursday, accomplishing one of its top priorities ahead of the 2023 election and marking the council’s latest attempt to increase the supply of housing by chipping away at the city’s zoning laws.

The new law will raise the city’s limits on how many unrelated people can live together from as few as three to five across much of the city. The changes will not increase the number of people who can live in certain homes in the student neighborhoods of University Hill or Goss-Grove.

The landmark vote is part of a broader effort by a majority on council to increase housing density in Boulder, where most of the residential land is zoned to only allow single-family homes. In May, councilmembers made it easier to build accessory dwelling units, or ADUs. And in June, they directed city staff to begin drafting an ordinance that would allow duplexes and triplexes on larger lots in single-family neighborhoods, where they are currently prohibited.

Supporters hope raising occupancy limits will add more units to the rental market and allow more housemates to share the cost of rent and utilities. The change will allow renters living in over-occupied homes to sign a lease, giving them additional legal protections from eviction.

“It is a step toward housing accessibility in our city,” Mayor Aaron Brockett said, “without building anything, without tearing anything down.”

“This is a small step for housing and for personal freedom and affordability,” Councilmember Nicole Speer said. “But it feels like a giant leap forward for inclusion and community.”

The ordinance passed by a 6-3 vote. Councilmembers Bob Yates, Tara Winer and Mark Wallach voted against it.
Opponents of the change are primarily concerned about potential negative consequences of increasing the number of people and cars in neighborhoods. Yates said he would have preferred to include a provision that only allowed landlords to increase occupancy if they agreed to keep rent affordable for people earning a certain income.

“I think we’re deceiving ourselves and our community if we believe this law change will magically make Boulder affordable. It will not,” Yates said. “We have missed the opportunity to guarantee housing affordability.”

Councilmember Tara Winer said she opposed the jump from three to five unrelated people living together due to a lack of community consensus. “I care about affordable housing. I care about people that need two or three jobs to live here,” Winer said. “But in my opinion, going from three to five is anything but a compromise.”

More than 65 people spoke at Thursday’s public hearing. Most supported the change. Many had volunteered with the Bedrooms Are For People campaign, which most recently sought to raise occupancy limits through a 2021 ballot measure. Eric Budd, co-chair for the Bedrooms Are For People campaign, said his advocacy around occupancy reform started in 2013.

“It took a massive effort,” Budd said after the vote. He and others wanted the ordinance to go further, but he still supported it. “This provides an immediate relief.”

In the 1960s, cities across the country adopted occupancy limits as part of their zoning codes, partially in response to nuisance concerns and especially in college neighborhoods. Ample research shows that zoning laws that restrict housing supply can drive up rents and home values, and contribute to segregation based on race and class. In the 1990s, occupancy limits were often referred to as “living-in-sin” ordinances, because they had the effect of penalizing unmarried gay couples. (Boulder exempts people in domestic partnerships.)

Faced with severe housing shortages in recent years, cities and states across the country have sought to relax occupancy limits on unrelated people. California, Oregon and Washington state, for instance, now prohibit local governments from regulating occupancy based on family status. Colorado lawmakers this year proposed outlawing occupancy limits like those in Boulder, but the bill failed.

The long-term effect of zoning reforms, including occupancy limits, on local housing markets is unclear. Some studies suggest that, at least in the short term, these changes are unlikely to boost housing supply enough to have a noticeable effect on housing costs. The city does not maintain data on the number of bedrooms in the city’s 46,900 housing units, making it difficult to speculate on the economic impacts.

Regardless of how things play out economically, supporters of the new ordinance see it as a way to provide security for renters who live in over-occupied homes. Under city code, landlords can be fined and tenants can be evicted for over-occupancy.

Over the last two years, the Boulder City Council has responded to residents concerned about the impacts of increased occupancy limits by passing tougher laws regulating “unreasonable noise,” trash and weeds. Separately, city officials have said they are considering additional measures to address “chronic nuisance” and parking concerns.

“I do believe that people hate cars and noise and not other humans,” Councilmember Rachel Friend said. “So I think that enforcement is a big piece of what we will need to do.”

‘Overturning an election result’

Much of the opposition in the lead up to this week’s vote has centered around the results of the 2021 election. That year, voters rejected the Bedrooms Are For People Ballot measure, which would have raised the city’s occupancy limits to one person per bedroom, plus one. It failed by a vote of 52% to 48% — or 1,540 votes.

The measure would have applied equally across all homes in the city. By contrast, the newly passed ordinance exempts homes that have been granted special permission to have more housing units than is allowed under current zoning laws. City officials said about 5,000 of these “nonconforming” dwelling units exist in the city, primarily in the neighborhoods of University Hill or Goss-Grove. Under the new ordinance, occupancy in those homes would not increase.

Citing the failed ballot measure, several opponents of raising occupancy limits threatened lawsuits if councilmembers moved ahead with the ordinance.

Councilmember Mark Wallach, who opposes raising occupancy limits, lambasted his colleagues for pursuing the reforms.

“Overturning an election result is a violation of core democratic principles and should have been regarded by this body as an inappropriate use of its authority. Elections do — or are supposed to — matter, even in today’s climate,” Wallach wrote before the vote.

In 2021, fewer than half the city’s residents turned out to vote, some supporters noted during the council meeting. Nearly 75% of the city’s voters cast ballots in 2022, by comparison. Turnout was particularly low in student neighborhoods. Meanwhile, the year the ballot measure failed, voters elected five people to the Boulder City Council. Three campaigned in support of occupancy reform.

Earlier this year, the city carried out a survey on occupancy reform. The results found a majority of residents supported raising occupancy limits from three people to four. The survey was not representative of the city’s population, according to city officials. For instance, around 27% of the respondents were renters, despite renters making up about half of Boulder’s population.

Voters will soon have another chance to weigh in on housing policy. On Nov. 7, five seats on the Boulder City Council, including the position of mayor, are up for election. The race has the potential to create a new majority on the city council, potentially changing course on zoning and housing reform.