Attorney general reverses ban on Tucson housing ordinance

Arizona Attorney General Kristin Mayes has reversed her predecessor’s decision to block an ordinance that bans landlords in Tucson from rejecting tenants based on their source of income.

Tucson’s ordinance does not violate state law or the Arizona constitution, Mayes’ new opinion released Wednesday stated, citing two legal errors in the one filed by former attorney general Mark Brnovich’s in December 2022.

“The Source of Income Protection is one of the solutions for the housing crisis in Arizona,” said Tucson Mayor Regina Romero. “I applaud Arizona Attorney General Mayes for reversing the opinion of the previous AG and recognizing that the City of Tucson has the authority as a chartered city to make the decisions that protect our most vulnerable residents.”

On Sept. 27, Romero and other members of city council approved the Source of Income Ordinance. It banned housing discrimination based on a person’s source of income, which include child support, spousal support, rental assistance, social security or disability insurance, veteran’s benefits and any other form of governmental assistance.

Council members voted unanimously to approve the change, saying it is necessary because discrimination is rampant against low-income families, seniors, military veterans and people with disabilities who receive Section 8 housing vouchers or other forms of rental aid, the Arizona Daily Star previously reported.

Arizona Speaker of the House Ben Toma previously said the measure violated a statute that prevents local government from placing restrictions on the rental housing industry and requested Brnovich, the attorney general at the time, declare the ordinance unconstitutional, the Star reported.

In December, Brnovich ruled the city’s new measure violated a state law that preempts municipalities from regulating the rental housing industry, the Star reported. As a result, Tucson had until Jan. 21 to resolve the violation or have its state shared money withheld.

The City of Tucson suspended the enforcement of the ordinance in January and requested that Mayes’ reconsider Brnovich’s decision.

Mayes’ new opinion said Brnovich’s decision was based on two legal errors. The first error involves an Arizona statute that says a city or town with a population of 350,000 or more may adopt a fair housing ordinance no later than January 1, 1995.

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Mayes’ argued that the statue does not apply to subsequent amendments to a city or town’s duly enacted fair housing ordinance.

The second error stems from another statute that prohibits cities or towns with a population of 350,000 or more from enacting ordinances no later that January 1, 1995.

In the report, Mayes’ said that statute does not impose a third condition on a city when enacting or adopting amendment to fair housing ordinances, rather it operates as an express savings clause for preemption purposes.

“Among other things, these legal errors would discourage cities and towns from amending their fair housing ordinances to reflect changes in state and federal fair housing laws, and would undermine all post-1995 amendments made to those ordinances even if the amendments brought the local ordinances into compliance with federal and state law,” the report said. “These legal errors and their concerning consequences necessitated reconsideration of Investigative Report No. 22-002.”

Not everybody is happy with the reversal of Brnovich’s opinion. The Arizona Multihousing Association, a statewide trade association for the apartment industry, spoke out against the ordinance.

“The Tucson source of income ordinance was unlawful when enacted, was recognized as unlawful by the Attorney General’s Office after a thorough investigation, and it remains unlawful today,” Courtney Gilstrap LeVinus, the president and CEO of the association said in a news release. “Under this ordinance, families who have invested in real estate are losing control of their own property. That’s unfair and, more importantly, it’s illegal. We will continue to work protect their property rights. To be clear, our opposition has nothing to do with the source of the income but rather the strings attached. The illegal Tucson and Phoenix ordinances require rental owners to contract with the government to accept Section 8 vouchers, a federal HUD program that has been a voluntary program since its inception. 10,000 rental owners leave the HUD Section 8 program annually due to bureaucratic red tape, late payments and onerous requirements. This compelled government program is wrong for the housing industry and for Arizona.”

Due to Mayes’ new findings, the city is now allowed to proceed with enforcing the housing ordinance.

“The Housing and Community Development Department stands ready to welcome new landlords to our program and to provide them with great service. The participants of the various housing programs will have more opportunities to secure housing because of this decision,” HCD Director Liz Morales said in a news release.