Tucson, Toma clash on city ordinance establishing housing source of income protection 

Update: Clarifies the Arizona Multifamily Housing Association’s stance on the Tucson ordinance, including adding a quote from Barrett Marson, a GOP strategist working with the association.

The city of Tucson responded to a complaint from the incoming Speaker of the Arizona House of Representatives alleging the city is breaking state law with its recent housing ordinance that forbids source of income to be considered in rental housing applications.

Rep. Ben Toma, R-Peoria, filed the complaint with the Attorney General’s office on Nov. 16. The passage of Senate Bill 1487 in 2016 allows legislators to request an investigation from the attorney general’s office into any ordinance, regulation, order or other official action taken by a governing body that a legislator alleges violates state law.

Toma’s complaint targets Tucson’s housing ordinance passed on Sept. 27. The city council amended Tucson’s fair housing code to prohibit property owners from refusing a person access to housing solely based on that person’s source of income. In a Dec. 9 letter responding to the complaint, Tucson Principal Assistant City Attorney Jennifer Bonham wrote that source of income protection is becoming more popular among local jurisdictions.

According to the Poverty and Race Research Action Council, 21 states have adopted some kind of source of income protection in statute and many municipalities have passed similar laws. The organization estimates at least 50% of participants in the housing choice voucher program – formerly known as Section 8 — are protected.

Toma argued in his complaint that Tucson’s ordinance is a risk for property owners’ economic interests and the “personal safety of their tenants and communities” due to landlords being forced to accept the voucher program’s “draconian” regulatory restrictions.

“The city is attempting to conscript private property and convert those units into public housing, even if such a burden adds significant costs to the private owner, and even if the city is unable to make timely payments to the owners who themselves have mortgages, taxes, and many other expenses,” Toma wrote in a news release about his complaint.

Toma wrote in his complaint that Tucson City Councilmember Steve Kozachik acknowledged the voucher program has been “plagued by a ‘history’ of property owners being consigned to ‘long waiting times to get payment’ and ‘stuck’ with apartments that were ‘trashed’ by irresponsible tenants.”

During the open meeting that Toma referenced Kozachik’s comment on Dec. 21, 2021, Kozachik also noted that the voucher program is performing much better after it “turned a corner five years ago” and is “back on the rails.” He argued for a source of income protection ordinance during that meeting.

“The negative stereotyping in the Complaint demonstrates why these anti-discrimination protections are needed,” Bonham wrote in the city’s response letter.

The ordinance has had early success, according to Tucson officials. From Jan. 1 to Sept. 30 of this year, the city’s Housing and Community Development Department received 14 requests for tenancy approval daily. Since the passing of the housing ordinance, that number has risen to 40 requests per day and the department is working on more than 200 lease startups at any given time, compared to 80 lease startups before October.

Toma also alleged the city is compelling landlords to rent to Housing Choice Voucher program applicants even if other prospective tenants are “better qualified lessees.” Bonham refuted this point and wrote that property owners may continue to apply non-discriminatory screening criteria for prospective tenants.

“The purpose of the City’s fair housing code is and always has been to level the playing field for all potential tenants that are fully qualified to rent,” Bonham wrote.

Barrett Marson, a GOP strategist who works with the Arizona Multifamily Housing Association, said the association praised city staff for solving problems with the Housing Choice Voucher program in previous years, but were opposed to the policy change.

“Arizona Multifamily Housing Association steadfastly opposes the ordinance,” Marson said.

Bonham argues in her letter the program is valuable for property owners because they are guaranteed a monthly payment backed by a local public housing agency.

Attorney General Mark Brnovich will also have to determine if the ordinance is preempted by the Arizona Fair Housing Act and state law that preempts municipal fair housing laws enacted after 1994. Arizona permitted major cities to enact local fair housing code up until Jan. 1, 1995. Tucson city officials argue the city’s fair housing code is consistent with the Fair Housing Act and amendments to the city’s fair housing program, established in 1988, are allowed under state law.

If Brnovich determines Tucson violates state law, he will file an action in the Arizona Supreme Court. The city will have 30 days to resolve the violation if it is upheld by the court. In the event the matter isn’t resolved within 30 days, the state treasurer will withhold and redistribute shared monies designated for the city.

Since SB1487 complaints became available for legislators in 2016, only Republican elected officials have filed them, in which there have been 23 complaints.

Tucson has been the target of six of these complaints and three of them were submitted in 2021 toward a Covid vaccine requirement for city employees.