Agenda - Planning Commission - 03/05/2009

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{ January 10, 20091 Volume 31 No.1 Jerry and Patti Weida (the "Weidas") owned property in the city (the "Property"). They used the Property as rental housing. In March 2006, a city inspector observed five names on the mailbox of the Property. It was determined that five unrelated t~nants occupied the Property. The city eventually brought an action against the Weidas. The city asked the court to prohibit the Weidas from permitting bver- occupancy of the Property and to levy fines against the Weidas for their violation of the Ordinance. The trial court found in favor of the city and against the Weidas. The Weidas appealed. On appeal, the Weidas argued that they did not violate the Ordinance because they did not "intend" to permit or allow the over-occupancy. Specifically, the Weidas contended that lan- guage of the Ordinance-specifically the language that made it .a vi- olation for the owner to "permit or allow" over-occupancy of rental units-required the city to prove the Weidas intended to permit or allow the over-occupancy. They asserted that since the city could not prove that they intended to permit or allow the over-occupancy, there was no need to look into the Ordinance's secondary obligation of duty to monitor occupancy. Moreover, they argued that "duty to .moni- tor" requirement would violate tenant privacy rights and the Fourth ) Amendment. On the other hand, the city argued that the Ordinance iniposed a duty on the landlord to monitor and to ensure proper occupation. The City contended that when a landlord failed that double duty, he "per- mitted or allowed" over-occupancy. PECISION: Affirmed. The Court of Appeals of Indiana held that a violation of the Ordi- nance did not require-as the Weidas had argued-proof that land- lords intended to permit or allow over-occupancy. Rather, said the . court, a determination of whether the Weidas "permitted or allowed" over-occupancy required a review of th.e totality of the evidence, with one of the factors being the Weidas' awareness and knowledge. The court found that the Weidas had been put on sufficient notice of over- occupancy at the Property when: in the fall of 2005, six names were listed on the mailbox and obseryed by the Weidas; and in January 2006, the Weidas received monthly rent payments in increments of one-fifth of the total rent, including from individuals not on the lease or occupancy affidavit. TlIe court further found that despite that no- tice, the Weidas did not pursue their monitoring duty, but instead ig- nored the evidence in front of them. tn light of those facts, the court concluded that the Weidas permitted or allowed the over-occupancy of the Property in violation of the Ordinance. Zoning Bulletin @ 2009 Thomson Reuters 3 69