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As
previously reported by Delaforum, the task group convened last
summer by Council president Christopher Coons to develop the
prospective ordinance came up early on with the idea of
supplementing inspections resulting from tenant complaints with
a system of random inspections whose frequency would be
determined by a property owner's non-compliance record. The more
often violations were discovered, the more often a landlord
could expect visits from compliance officers.
However,
Mary Jacobson, a county lawyer, said it is doubtful whether that
kind of arrangement would hold up in court. "I see all kinds of
loopholes in there," she told a meeting of the group on Apr. 24.
At a minimum,. she explained, one person's idea of randomness
could be interpreted by someone else as discrimination. If would
be difficult, she said, to counter a claim that a frequent
violator was being singled out as a target.
The
latest draft of the ordinance proposes three levels of
inspection frequency. The lowest would include properties with
no history of 'founded complaints' during the previous year. Few
of those would be inspected. The middle rung would include
properties which had 'founded complaints' during the year. The
number of those selected to be inspected would be at least twice
the rate of low-level properties inspected. The highest level
would consist of properties with either one major 'founded
complaint' or multiple minor ones. Failure by the owner to
comply with the law's registration requirement or the mandatory
distribution of a tenants-rights brochure or who does not pay
fines levied for violations would put a property into that
category, where the inspection rate would be twice that of the
middle level.
Jacobson
said a defense lawyer would have a field day challenging the
propriety of a client's placement on that scale. George
Haggerty, assistant general manager of the Department of Land
Use, further supported her in that observation by noting that
county code enforcement "is compliance-driven" rather than an
effort to impose penalties. If violations are corrected within a
reasonable length of time, the matter is considered resolved, he
said. That would seem to do away with justification for
assigning any but the most flagrant and contemptuous violators
to the middle or high level.
The
ordinance would exempt from inspection, except when a complaint
is received, any government-subsidized property, which have to
be inspected to qualify for the subsidy.
County
Council policy director Emily Knearl said an alternative might
be to take a cue from a rental code in effect, apparently
successfully, for several years in Santa Ana, Calif. It bases
inspection frequency on the nature of discovered violations,
specifically defined and grouped by assumed degree of severity.
The
proposed New Castle County ordinance would require all property
owners to register and to update information in their
registrations annually. Failure to do so is subject to a fine of
$200. The Delaware Apartment Association estimates there are
between 35,000 and 36,000 rental units in the county, but others
claim the number is higher.
Fines for
discovered violations are specified in the property code.
Landlords also would have to pay fees to cover the costs of
re-inspections necessary after the initial followup to certify
their having corrected violations.
Councilman William Tansey, who was attending a meeting of the
group for the first time, suggested that, rather than initiate a
complex system, enforcement might better be left to responding
to tenant and neighborhood complaints.
"The
whole reason we're here is that that system does not work,"
Michael Morton, a lawyer involved with housing issues, replied.
Fred Quercetti, of the Delaware Apartment Association, said
"there is no question there is substandard housing in the
county" going unaddressed by the present arrangement of simply
responding to complaints.
Beverly
Baxter, of the Committee of 100, a developer trade organization,
however, agreed with Tansey. She said the proposed ordinance's
mandating distribution of a tenants' rights brochure, which is
to include telephone numbers of the correct agencies to call if
there are problems, will generate a significant increase in the
number of complaints. The brochure would have to be given by the
landlord to every tenant at the time a lease is signed or a
rental agreement is entered into. It also would be made
generally available in libraries, community centers and other
public places.
George
Lossé, of the Claymont Community Coalition, said that landlords'
ability to evict low-income tenants who file complaints is more
than a sufficient deterrent to their doing so. "This is
absolutely necessary; this has to happen," said Lee Hoffman, of
the Milltown Limestone Civic Alliance, of the county-initiated
inspection system.
Steven
Peuquet, of the University of Delaware, who chaired the
committee which designed the random inspection system, defended
it, saying it is the only way to get a handle on how much
substandard housing exists in the county and to do something
about it. "If you're a good landlord, it will keep you on your
toes. If you're a bad landlord, there's a greater chance you'll
be found out," he said.
Random
inspections, he added, is a practical alternative to the
county's inspecting all rental properties on a regular basis, a
task for which, everyone agrees, it lacks the resources.
Coons,
who intends to sponsor the ordinance, strongly objected to
Baxter's characterization of it as based on an assumption that
everyone in the business of renting property is bad. "From the
outset, the assumption has been that the majority of landlords
are keeping up their property," Coons said.
He said
he has no objection to the legislation giving county code
enforcers "a degree of latitude" in deciding how to carry out
the enforcement function. He stopped short, however, of
endorsing an idea broached at the meeting that procedures to be
followed might by put forth in a policy rather than a law.
Coons did
indicate that he responded to objections to previous drafts of
the ordinance by inserting a new section which would establish
an advisory committee to monitor the effectiveness of the law in
combating the substandard housing problem and to make
suggestions for modifications. The ordinance itself contains a
so-called 'sunset' provision which requires that County Council
reaffirm it after three years.
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