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Saturday, October 04, 2008

Ind. Courts - Two cases before COA involving West Lafayette's application of city occupancy ordinances

Last Tuesday, Sept. 30th, the COA heard oral arguments in the case of Bowden vs. City of West Lafayette, Indiana (see ILB entry here). Among the issues listed in the case - "the City's claim that the Bowdens violated city zoning ordinances by allowing too many tenants in one residential unit".

Next Wednesday, Oct. 8th, a different COA panel will hear arguments in the case of Weida vs. City of West Lafayette, where, according to the Court summary "The Weidas appeal the trial court's Order determining that they violated certain provisions of the West Lafayette City Code relating to the occupancy of rental property."

Sophia Voravong of the Lafayette Journal & Courier reports today on the latter case, in a story headlined "Occupancy legal fight draining for city, landlords." (The Bowden case is also discussed.) Some quotes:

For Patti Weida, one of her largest tasks as a rental property owner catering largely to Purdue University students is staying in line with West Lafayette's occupancy ordinance while still maintaining her tenants' privacy.

Short of snooping and asking for identification, she said it's difficult to differentiate between who is only visiting and those staying in a residence illegally.

"I want someone to tell me how to go about this," Weida said. "I've gotten no guidance from the city. Basically, it takes up a great deal of time and accounts for a lot of stress."

On Wednesday, Weida's attorney, William Kealey, will argue before the Indiana Court of Appeals about West Lafayette's ordinance that allows only up to three unrelated people to live together in areas zoned residential.

It is one of three ongoing civil disputes over suspected code violations by landlords.

Though a Tippecanoe County judge ruled in favor of the city in the three civil complaints, all the property owners appealed to the state's higher court. * * *

Last year, $273,664.29 was spent to fight the court battles, according to clerk-treasurer Judy Rhodes. It was more than was spent on code enforcement in the past five years.

Rhodes said $134,000 was allotted in the 2008 budget for code enforcement because of the still-pending cases. City attorney Eric Burns said Friday that no similar lawsuits have been filed this year. * * *

The civil complaint against the Weidas accused them of allowing five women to live in a home at 112 Sylvia St. Weida said they have countersued the women.

Kealey, her attorney, said the appeals court will have to decide what the city's ordinance actually says and whether it was properly applied during the Weida's bench trial before Tippecanoe Superior Court 2 Judge Thomas Busch.

"The focus will be on the fact that the Weidas prohibited overoccupancy," Kealey said. "The ruling by the court acknowledged that. The students admitted at trial that they did not have permission to do what they did."

Earlier this week, Lafayette attorney Fred Meessen argued before the appeals court for his clients, Edward and James Bowden. A ruling has not yet been issued.

Edward Bowden said Thursday that he had no choice but to appeal because he cannot afford to pay the fines ordered.

"What happened to me could be repeated, victimizing potentially hundreds of people," he said. "Anyone living in Tippecanoe County could -- without a proper trial, a prior injunction, or any kind of notice whatsoever -- be held liable for tens of thousands of dollars in fines because they bring home some of their work, work part-time from home, or rent out a room in their home in West Lafayette."

The Bowdens were accused of allowing more than three people to live in a home at 810 N. Grant St. from Aug. 1, 2006, to July 15, 2007.

An ILB entry from Oct. 28, 2007 discussed the Weida case at trial, quoting an earlier Voravang story. The entry ended with the ILB observation that the case touched on two interesting issues:
The first appears to be the duty of the city to make available to its citizens the legal requirements they are expected to follow.

The second is the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. This issue is often raised in college towns (see this table), and our Supreme Court has issued a ruling on it (Dvorak v. City of Bloomington - 9/23/2003).

Posted by Marcia Oddi on October 4, 2008 08:23 AM
Posted to Upcoming Oral Arguments