Greenwood Village's Motel Ordinance Considered

Greenwood Village's Proposed Motel Ordinance

The City of Greenwood Village's city council is on the verge a passing an ordinance that prohibits motels, other than extended stay motels that have kitchenettes and the like, to allow guests to stay more than twenty-nine days.  Motels would be fined about $450 a day for each day that a guest was allowed to stay beyond twenty-nine days.

The only poor or working class people who live in Greenwood Village live in one of the four ordinary motels (the most affordable of which is a Motel 6).  A significant share of the guests in these four motels, particularly the Motel 6, are families staying for more than 29 days at a time who are on the brink of homelessness.

In justifying the need for the ordinance, Greenwood Village officials have noted that ordinary motel rooms are not held to design standards that provide adequate amenities for families staying in them on a long term basis.  For example, they have no cooking or kitchenette facilities, and families staying in them on a long term basis are strongly tempted to use hot plates and other cooking appliances that could pose safety hazards and generate hygiene risks that the lenient building code requirements for motels are not designed to address because it is contemplated that motel rooms are occupied only on a short term basis by travelers or short term visitors who eat elsewhere and don't spend much time in the room.  Motel rooms also have less privacy and less square footage per person than would be permitted by building codes for apartment uses.

These concerns, on their face, are just the kind of legitimate considerations that should go into building codes and zoning regulations.  But, the discussion tends to indicate that the need of police calls at these four motels is a bigger motivating factor for the Greenwood Village City Council.

Greenwood Village officials also note that there are many more police calls to the four ordinary motels that have long term guests than there are at the city's few apartment complexes, or at the city's extended stay motels (whose guests are more affluent and whose facilities are designed to accommodate long term stays).  They officially attribute this excess volume of calls to the inadequacies of the physical facilities at these motels, but the guests are not complaining about that and the nature of the calls appears to be much more strongly caused by the general factor that the individuals who live here are poor and circumstances that make police intervention necessary often crop up in communities with poor people in them.  Nothing about the calls disclosed in media reports suggests that they are a direct consequence of the inadequacy of the facilities for long term occupancy by families.

It is absolutely true that lower income people living in close inadequate quarters because they are on the brink of economic crisis are more likely to generate police calls and to be a source of "blue collar" criminal activity (e.g. domestic violence and petty larceny and disturbing the peace calls).  Part of this is due to economic stress and necessity creating more intense motives to ignore laws for their own economic gain, and part of this arises from the personal traits of the poor that cause them to be at the bottom of the economic heap like below average literacy and social skills.  But, for reasons discussed at greater length below, a municipal intent to exclude low income people, particular because income and race strongly intersect, can be far more legally problematic and seem to be at the crux of what is generating political heat for the Greenwood Village city council to act on this ordinance.

The bottom line in this case is that the only poor or working class people who live in Greenwood Village live in one of the four ordinary motels (the most affordable of which is a Motel 6).  A significant share of the guests in these four hotels are low income or working class guests are families who stay there more than 29 days at a time on a temporary basis.

Of course, the only reason that there is any place in Greenwood Village that low income people are allowed to live, despite their best efforts to exclude low income people from living in the city, is that long term stays in these four motels created a loophole in their carefully devised scheme of exclusionary zoning that they had not foreseen.

Like the long term residents of similar motels on Colfax Avenue which extends from the eastern border of Golden, Colorado running east to west all the way to Aurora, Colorado in four counties (Jefferson County, then Denver County, then Adams County on the north side of the street and Arapahoe County on the south side of the street), families staying in these low end motels on a long term basis are way stations for distressed families between true homelessness and a more permanent home in an inexpensive apartment, rental house, inexpensive modest house in a poor or working class neighborhood, mobile home, or RV.

The Denver Post ran an editorial today, urging Greenwood Village not to adopt the ordinance, basically on the grounds that it may force families who now have a safe clean space to live temporarily into full fledged homelessness.  But, that is likely to fall on deaf ears.

A Timely Federal Court Decision

A decision today from the United States Court of Appeals for the 9th Circuit concluding that a Los Angeles, California city ordinance designed to prohibit living in your car is unconstitutional, addresses a similar issue, but is unlikely to be applicable to the Greenwood Village case, because the 9th Circuit holding addresses the way that the law is drafted, rather than the substantive authority of Los Angeles to enact ordinances designed to exclude the homeless like their ordinance, even though the 9th Circuit holding is animated by substantive concerns.  Howard Bashman's How Appealing blog summarizes this ruling as follows:

Ninth Circuit declares unconstitutional Los Angeles Municipal Code section 85.02, which prohibits use of a vehicle "as living quarters either overnight, day-by-day, or otherwise": Circuit Judge Harry Pregerson wrote today's ruling of the U.S. Court of Appeals for the Ninth Circuit on behalf of a unanimous three-judge panel. The opinion's concluding paragraphs state:

Section 85.02 provides inadequate notice of the unlawful conduct it proscribes, and opens the door to discriminatory enforcement against the homeless and the poor. Accordingly, Section 85.02 violates the Due Process Clause of the Fourteenth Amendment as an unconstitutionally vague statute. 

For many homeless persons, their automobile may be their last major possession -- the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.

The unlawful conduct prohibited by the proposed Greenwood Village ordinance is much more clear, although it may have a loophole that would permit families without permanent homes living on a long term basis in these motels to cycle from one of the four hotels in Greenwood Village that will take them to another every twenty-nine days in a never ending cycle.  If this loophole is available, Greenwood Village may have a constitutionally valid ordinance, but this may be a mere Pyrrhic victory that does not achieve its true objectives in enacting the law.

Footnote on Election Law and Landlord-Tenant Law Impact

One collateral effect of the ordinance, if it is adopted, was probably not intended, but is probably welcomed by Greenwood Village.  Generally, to establish a valid residence for voter registration purposes (and to some extent also for public school system eligibility), you need to have an intent to live at your current address for the indefinite future and a thirty day threshold for voter registration eligibility has frequently been upheld.

Even if the rotating series of motel occupancy loophole prevents this ordinance from having the City's desired effect of preventing people from living in these motels (collectively) on a long term basis, it probably is effective to prevent the low income long term residents of these motels from acquiring residency in Greenwood Village for election law purposes or for eligibility for public education benefits purposes.

Thirty days is also arguably a cutoff between stays for which legal procedures related to residential evictions must be used to kick out guests who don't pay their bills, and stays for which guests can merely be locked out.  (A news article sets forth the rule to this effect, but I'm not convinced that Colorado law is actually so definitive on this point.  There is a fair argument that this simply alters the amount of advanced notice required for motel owners to utilize the legal eviction process.)

Assuming that long term guests actually use the rotating occupancy loophole (rather than just simply moving to a motel in some other jurisdiction, which is no doubt what Greenwood Village hopes will happen), this ordinance will, at a minimum, also have the practical effect of diminishing the legal rights of long term guests who allegedly have not paid what they owe and of inconveniencing them by requiring frequent moves to new motels.

Background

Greenwood Village is a Denver suburb (entirely or nearly entirely in Arapahoe County, Colorado which is part of the Denver metropolitan area) that is one of the most affluent Colorado municipalities in Colorado (it is the 31st highest income city of 10,000 or more in the United States).  As of the 2000 census, the median household income in the city was $116,147 and the median income for a family was $145,802.  The city's population was 13,925 as of the 2010 census and was 11,035 according to the 2000 census.  Most of the increase in population has arisen from the construction of luxury apartments and condominiums in the city.  This probably brings down the median income, the median age of residents, and their average family size somewhat, although the median income may nonetheless have increased since 2000 since those at this high end of the income scale have increased their share of the economic pie in the last decade and a half.

The number of people who work in Greenwood Village on a typical work day is on the order of 100,000 or perhaps slightly less.

Of course, not everyone who lives in Greenwood Village works in Greenwood Village.  About 60% of Greenwood Village residences are adults aged 18 to 64, and a significant number of them are college students, homemakers, and early retirees (there are probably more early retirees than there are people who are working beyond the "normal" retirement age of sixty-five).  If 75% of the working age population is employed (an estimate greater than the national average that reflects the character of the residents), and if two-thirds of residents who live in Greenwood Village and are employed also work in Greenwood Village (probably also an overestimate, but of the right order of magnitude), then the number of Greenwood Village residents who work in Greenwood Village is on the order of 30% of the City's total population (i.e. about 4,000 or so people in 2010).   Thus, roughly 95% of the people who work in Greenwood Village live somewhere else in Colorado.

Most of the municipality consists of the lion's share of mid-rise building office parks collectively known as the Denver Tech Center, which rival downtown Denver in terms of square footage of office space and is home to the headquarters of many of Colorado's leading businesses.  These office parks are comparable, for example, to the complex of offices found in Oakland County, Michigan in the Detroit metropolitan area.  Interspersed with these offices parks are a variety of retail and service businesses, some catering to people who work in the Tech Center, and some with a wider draw (e.g. a Big Box golf and tennis supply outlet).

The vast majority of people who work at these Greenwood Village businesses (i.e. roughly 95%) don't live there.  Even then, the employees who live in Greenwood Village is probably skewed.  Only a tiny percentage of the administrative, clerical, food service and retail employees live there, a significant but still decidedly small minority of lower level managerial and professional employees live there, and a substantial but still almost surely minority share of senior level managerial and professional employees who work there live in Greenwood Village.  Apart from the households of the senior level managerial and professional employees, most people who both live and work in the Denver Tech Center are singles or newlyweds without children who are renters.

There is lots of middle class housing elsewhere Arapahoe County, which is a first ring suburb of Denver, and there is lots of upper middle class housing in Douglas County, a mix of affluent second ring suburban areas and even more affluent exurbs, which is immediately adjacent to Greenwood Village to the South.  Lower income housing and services for the poor and the homeless tend to be found further to the North, in Denver, which is now accessible to Greenwood Village via light rail.

On the residential side, it is home to some of the most affluent people in Colorado, mostly housing the families of senior executives and high end professionals who work in the Tech Center or Downtown Denver in large lot mansions and mini-mansions in gated communities and to a handful of luxury apartment complexes catering mostly to young professionals and executives who work in the Tech Center (aka DTC).  Greenwood Village also has four medium to high end extended stay hotels mostly serving young managers and professionals relocating to the Tech Center or working on temporary assignments there (often paid for with corporate expense accounts), and four decidedly less expensive ordinary motels that are decidedly less expensive, which are attracted to the location mostly because it is the first urbanized area that someone coming into Denver from the South on I-25 encounters.  There are also a few more expensive hotel/motels that are not pertinent to this post because they don't make rooms available to guests for periods of a month or more as a matter of pre-existing business policies.

Greenwood Village has no trailer parks, RV parks, working or even middle class neighborhoods, no lower rent apartment complex, and no significant service provides for the poor or the homeless.  Indeed, there is probably no place in the city that is zoned to permit this in any place where it is practically viable to do so (e.g. because there isn't already a building with another purpose that is not easily modified in the locations where zoning permits these uses).

Analysis

This situation, called exclusionary zoning, is not an accident.  Unlike many Colorado municipalities, Greenwood Village was incorporated in 1950, after modern zoning practices had been widely adopted.

The strategy adopted by Greenwood Village, which is similar to that of the municipality of Glendale, which is also in Arapahoe County (entirely surrounded by the City and County of Denver), is to make the city attractive for businesses and high end housing by building up a large tax base highly regulated by an urban planning regime that the is joint effort of large tract real estate developers and city planners, while keeping the cost of municipal services (and hence tax rates), low.

Colorado's tax policy encourages this strategy.  Colorado taxes business real estate at a much higher rate for property of the same fair market value than homes, due to something called the Gallagher Amendment to Colorado's state constitution.  Businesses also generate sales tax income and other tax revenue streams that residential development does not.  But, in practice, office space uses demand very little in the way of municipal services, and other commercial uses and high end residential housing generates less of a demand for municipal services than middle class to low income housing.

Exclusionary zoning is a practice that courts, civil rights lawyers, constitutional scholars and academics distrust, but it is not illegal or unconstitutional per se.  Nothing under Colorado or federal law prohibits a municipality from being established primarily for purposes other than long term residential use.  A number of other Colorado municipalities are similarly heavy on non-residential use and have few residents (e.g. Lakeside, Colorado in the Jefferson County, Colorado, Commerce City in Adams County north of Denver, and many resort and casino towns in the mountains).  Cities, and in particular, home rule cities like Greenwood Village, have wide discretion in their authority to develop land use regulations, and not every city must permit every possible use somewhere.

The reason that exclusionary zoning is a matter of concern is that one of the uses that it very frequently seeks to exclude is lower income housing, something that few municipalities have been more successful at excluding than Greenwood Village.  In addition to all the other reasons stated above, and in particular the cost of providing municipal service for lower income people, cities like to exclude lower income housing because they believe that lower income people are inferior neighbors.  City planners, other municipal officials, elected and appointed, and the citizens involved in local government in cities like Greenwood Village to whom they are responsible, would prefer not to have to encounter poor and working class people any more than absolutely necessary, which is also while affluent Greenwood Village residents tend to live in either gated communities or access controlled apartment buildings.  They conclude, not irrationally, that the best way to escape the many urban woes associated with poverty and poor people is to have as few dealings with such people as possible.

But, this raised a perennial problem in urban planning.  There are some uses that the middle class and more affluent people who vote and participate in local government affairs almost universally dislike.  And, the balance that Colorado strikes between tax collection potential from certain uses and the reasonable cost of meeting the service demands of particular uses, also disfavors certain kinds of development (like housing for low and moderate income families) relative to other uses (like commercial and industrial property with brick and mortar retail sales generating properties being the biggest cash cows of all relative to service costs).  The uses that no one wants create "not in my backyard" (NIMBY) problems.  If no individual local government wants to permit a NIMBY use, and there is no overarching way to compel someone to allow it somewhere (which there generally is not in Colorado law), then NIMBY uses that everyone can reasonably agree need to exist somewhere are not permitted anywhere under local land use regulations.

Low income transitional housing for people on the verge of being homeless is one such NIMBY use.  Firms in a free market economy, like Motel 6 in Greenwood Village, are happy to provide it, so long as they can receive ordinary municipal services like criminal law enforcement in exchange for their tax dollars.  But, no local governments are interested in providing it.

Put another way, NIMBY uses are one of the powerful reasons that people who otherwise proclaim strong support for capitalism and lassiez faire economic regulation betray these general ideological commitments when it comes to state and local law making in real life.  These conflicts are inherent contradictions in socially conservative Republican ideologies that those who have to face them do everything that they can to sweep under the rug and ignore so long in public forums and policy discussions, as long as the NIMBY uses stay out of their backyards.

A closely parallel NIMBY v. capitalism narrative arises in the context of proposals to allow local fracking regulation, where again, the free market pushes firms to want to engage in the NIMBY use, but all rational local governments want to forbid it.  But, in those cases, the conflict is more intense, because fracking operations can't be relocated to another jurisdiction.  You have to extract oil and gas from the place where it is actually in the ground, whereever that may be.  Thus, in the fracking case, the common NIMBY solution of bribing a very small number of jurisdictions so that it is worth their while to accept NIMBY uses that others avoid, doesn't work.

So far, this sounds snobby and uncharitable.  Maybe it even sounds like bad public policy that allows individual municipalities to kick the can of public responsibilities elsewhere giving rise to NIMBY issues as discussed above.  But, the real live wire concern that animates concern about exclusionary zoning, particularly in high income cities whose residents are disproportionately socially conservative Republicans n places like Greenwood Village, is that there is, in practice, a strong overlap between race and income and social class.  Anecdotal evidence, moreover, suggests that covert racism is alive and well in private socially conservative Republican circles.

Policies designed to exclude low income people from a city may be elitist, but to the extent that these policies have a co-extensive purpose to exclude blacks and Hispanics from living in a city, those policies violate state and federal civil rights laws.  And, distinguishing between lawful non-race based policies that go into decisions about what are reasonable building codes or what occupancy periods are allowed in ordinary motels, and impermissible race based motives, is often very challenging.