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Those
were two of new ideas put forth as members of the task group
which has been attempting since last July to craft an ordinance
intended to eliminate, or significantly reduce, the amount of
substandard rental housing sought to reconcile its consensus
approach with the practicalities of administering and enforcing
whatever law is enacted.
After
hearing several objections to some provisions in the latest in a
series of drafts of a potential ordinance from county officials
who would have the job of making it work, County Council
president Christopher Coons established two sub-groups and asked
them to address the concerns that were raised and work out the
differences. Although he indicated he still is anxious to get
something on the books to deal with a generally recognized
'quality of life' problem, he said he is willing to wait as long
as necessary to get a measure that is both workable and fair to
all the interests involved.
At this
stage, there is general agreement about requiring property
owners to register with the county Department of Land Use and to
distribute to all tenants a comprehensive guide explaining what
to do to have specific common problems corrected. There also is
an acceptable provision to establish an advisory panel, along
the lines of the task group, to monitor effectiveness of the law
and recommend changes as needed. Unless Council renews it, the
law would expire after three years.
The
hang-up lies in the section setting up a system to randomly
inspect properties in the absence of actual tenant complaints
and levy fines for code violations, failure to register or not
distributing the literature.
The land
use department's code-enforcement section now inspects
properties, rental or otherwise, only in response to complaints
and concentrates its efforts on correcting violations rather
than penalizing property owners. George Haggerty, assistant
general manager of the department, told the group there were 350
rental properties found with violations of the code last year,
but no one was fined because the violations were corrected.
He
suggested taking a cue from the federal Internal Revenue Service
and including a line on the property-registration form, similar
to the one on tax returns, by which the filer certifies under
penalties associated with perjury that the information submitted
is accurate. There would be a question on the registration form
asking if the property was in compliance with the county
building code. If it was later found not to be in compliance and
the case ended up in court, a conviction on the more serious
offense would be relatively easy to obtain, he explained.
Licensing
rental property owners would provide a further enforcement tool,
Haggerty said. Instead of having to go to a justice of the peace
to prosecute a serious offender, the department could
administratively suspend or cancel the license. That would put
the offender out of business at an offending property until
violations were corrected.
Sherry
Freebery, the county's chief administrative officer, endorsed
both ideas, comparing the linking of inspections, registration
and licensing with the state's motor vehicles system. "It's not
arbitrary or discriminating," she said, adding that license fees
would help pay for administering the law.
While not
directly opposing those suggestions, Fred Quercetti, of the
Delaware Apartment Association, said that a New Castle County
rental code should be cast in the light of how the business
operates here and avoid bringing it under the jurisdiction of a
bureaucratic system. "We don't want to develop a system that
puts us in the same category as those larger jurisdictions," he
said, referring to Bergen County, N.J., and Santa Ana, Calif.,
which have been identified as having rental codes which New
Castle could emulate.
The
county officials came down heavily on the task group's proposed
three-tier system of random inspections of properties which are
not the objects of specific tenant complaints. The system
was devised on the assumption that the majority of violations go
unreported because tenants either are unaware that they have an
avenue of recourse or are intimidated by landlords who threaten
eviction or other adverse consequences.
Haggerty
said the land use department "has a tremendous amount of
difficulty with a random process." He said inquiries to several
counties which have rental codes and are comparable to New
Castle found none that employ such a system.
Charles
Baker, the department's general manager, said he is unable to
estimate how much it would cost to administer the group's
proposed random system. It calls for at least twice as many
properties with a history of relatively minor violations to be
inspected than those with no such history and at least twice as
many with major violations than with minor ones.
"Tell me
how many more [properties] you want us to inspect than we're
doing now and we'll budget for it," he said, adding that County
Council has to be willing to provide the money to hire the
additional code enforcement officers that would be required.
Baker
predicted that, apart from random inspection, the education
component of the proposed ordinance would increase the number of
complaint-initiated inspections to about 900, nearly triple the
number last year.
At the
same time, he said, assuming the accuracy of a just-published
Delaware Housing Authority study which found about 7% of
apartments to be below standard, the law would require the
department to deploy its force knowing that officers would find
no violations at 93 out of every 100 properties they visit.
Haggerty called that a costly "waste of assets."
Baker
said determining which and how many properties to inspect in
each of the three categories invites error. "The more complex
you make it, the easier it is to make mistakes," he said.
However, Steven
Peuquet, of the University of Delaware, who chaired the
committee which designed the random inspection system, defended
it, saying that it would be easy to manage and a practical
approach. Inspecting 400 properties a year would provide a
statistically valid sampling of conditions in the county, he
said.
Baker
replied that that was irrelevant. "We're not trying to find out
how many properties are substandard. The issue is to get the 7%
that we [now] know are substandard up to standard," he said.
Michael
Morton, the apartment association's lawyer, said that random
inspections are the only way "to determine if we have a serious
problem:" which requires a permanent program. Inspection fees
for such a program would necessarily be "built into the rent"
and thus passed on to tenants and, in most instances, to tenants
of lower socio-economic status who can least afford to bear
them.
Mary
Jacobson, of the county Law Department, said that the random
system, as proposed, would be difficult to defend in court. "You
can't just have randomness; you have to have a concrete reason
to knock on somebody's door [to inspect a property]," she said.
Among
other things, determining whether a violation is major or minor,
on which frequency of inspection is based, is a subjective
matter. "You shouldn't give someone out in the field with a
clipboard the burden of making that decision." she said.
At the
extreme, she said, the system could be attacked on
constitutional grounds as the violation of the Fourth Amendment
prohibition against unreasonable search and seizure and
probable-cause requirement. "There is a reason you don't see
'random' in [property] codes. The Constitution said the
government can't go banging on doors saying, 'We're here'," she
said.
On a very
fundamental level, she pointed out, the proposed ordinance's
requirement that a history of violations determine the frequency
of inspection is mathematically impossible to implement. The
number of properties in the lowest category would have to be
zero because there would be no history on which to base
placement of properties into the two higher categories which
require twice as many inspections.
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