April 25, 2003

Proposed legislation designed to strengthen the hand of code enforcers in moving against substandard rental housing in unincorporated areas of New Castle County appears to have hit a snag as a result of its key provision.

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 Lossť, 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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