Don’t Pass Laws Government Shouldn’t Enforce; Don’t Enforce Laws that Shouldn’t Have Been Passed (12/12/2016)

“This city is heading for a disaster of biblical proportions . . . human sacrifice, dogs and cats living together . . . mass hysteria.” – Dr. Peter Venkman (Bill Murray), Ghostbusters

Even if the proposed cooperative housing ordinance is passed, and – unlike the 20 years that followed passage of the last one – people from cooperative households actually prepare and submit applications that the City then approves, the prospect of more than a couple of dozen cooperatives being established in Boulder seems remote. In a community with more than 40,000 households, there just aren’t that many individuals willing to commit to a true cooperative housing lifestyle.

There are, however, many students and adults who might not mind sharing rent in greater numbers than Boulder’s occupancy rules (i.e., “up to three unrelated people”) currently allow. And it appears the clamor is growing for stricter enforcement of these rules. We should hesitate before doing so.

The City should focus its prosecutorial attention on negative impacts observable from public rights-of-way or by reasonable concerned neighbors. We should not, and if we respect our state and federal constitutions, we must not try to count heads on pillows or test the depth or quality of the personal relationships of co-tenants. Blood relations don’t guarantee good neighbors, and the lack of same doesn’t always and everywhere make bad ones.

Our overoccupancy code provisions, based as they are on the behaviorally meaningless blood relationship distinction, may very well be unconstitutional, and they are almost certainly arbitrary and capricious.

Boulder has more than enough – probably, too many – behavioral rules and regulations governing stuff that disrupts or imposes burdens on neighbors. Let’s enforce those. That is enough.

We should not pass laws that should not be enforced. Government has to know its limitations. They are real and they exist for good reason. There be demons. A failure to acknowledge such limits will embolden the neighborhood cranks and officious intermeddlers among us, who seem to have nothing better to do than pry into and judge the lives and activities of their neighbors.

Reliance on complaint-based lifestyle enforcement implicitly authorizes private snoops to go where government dares not tread, feeding a beast we should, instead, starve.

Although the exercise of prosecutorial discretion can mitigate potential over-reach and prevent invasions of privacy, why raise expectations of government involvement when and where it should not be engaged in the first place? Such inappropriate mission creep can cause collateral damage, while it arms complainants with government resources in circumstances where understanding, balance and neighborliness should prevail.

As we try, with increasing desperation, to legislate good manners, we are doomed to either fall short or leap too far. In order to “catch” everyone, we continually add specific provisions to the Code that cover increasingly remote contingencies. Eventually, compliance becomes so complex or expensive that behavior we may have hoped to encourage is prevented. The enemy of good is perfect.

Despite what you may have heard, Boulder is not heading for a disaster of biblical proportions. We need to leave some room for people with good intentions to experiment with living arrangements that do not impose undue burdens on others. Let’s focus on such burdens, not on trying to count how many people may be sleeping behind closed doors.

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