January 14, 2004

Although the proposed rental code went down to defeat in a rare party-line vote in County Council, the issue probably is not dead. A version which primarily differs in a couple of key respects from the one that four of the seven Council members rejected is waiting in the wings.

Sherry Freebery, the county's chief administrative officer, said the only reason competing legislation was not in immediate contention was "out of deference to [Council] president [Christopher] Coons" as sponsor of a major piece of public-policy legislation and the considerable effort he has put into advancing it.

She did not say whether there will now be an effort to bring the version drafted by the Department of Land Use before Council in light of apparently widespread interest in having a rental code in force in the unincorporated areas of the county. Wilmington and Newark have codes.

After saying that failure to enact the ordinance he was sponsoring would be "a tragedy," Coons promised he would be "committed to working together to make any change" which actual experiencing in administering the law showed would improve it.

The second-ranking official in County Executive Tom Gordon's administration and his announced presumptive heir, Freebery successfully urged Council to reject the measure drafted over a period of 18 months by a taskforce Coons convened on the grounds that it is not good practice "to pass bad legislation just to get something on the books."

She told Delaforum that, had Coons's measure been enacted at the Jan. 13 session, it faced a certain veto by Gordon. That would have been the first rejection of an ordinance by the executive, who is now in the eighth and last year of his tenure of office. At least five votes are necessary to override a veto.

Coons's proposed ordinance, Freebery testified, was deficient in that it ran counter to what professionals in the land use department, which would have to enforce it, deem necessary in order to do so effectively and efficiently. The key point of contention, she testified, was the absence of requirement that owners of rental properties be licensed, rather than simply registered.

Also still present --  although cloaked in a last-minute wrap which Coons said would be likely to keep it moot until another provision requires Council to revisit the issue in two years --  was a controversial provision which sets a standard for random inspection each year of at least 5% of the estimated 35,000 rental units in the county in addition to inspection of units about which tenants or others file complaints. "Any random enforcement action would be a constant source of legal challenge" and not likely to pass constitutional muster, Freebery testified.

As Delaforum has previously reported, the Department of Land Use prepared a draft ordinance that would require licensing, at an annual cost of $20 per rental unit, and enable the department of follow a procedure which, it has claimed, would result in all units being inspected over a period of five years.

When it came time to vote after more than two hours of discussion, Freebery's view prevailed in the face of a parade of witnesses who were unanimous in their endorsement of the Coons ordinance. Mostly all of those who testified had either been members of the taskforce or could be identified with people who were.

Coons was jointed by Councilmen William Tansey and Robert Weiner on the short end of the four-to-three vote. Voting against the ordinance were Councilwomen Karen Venezky and Patty Powell, and Councilmen Penrose Hollins and Robert Woods. Tansey and Weiner are Republicans while Coons, a Democrat, is an acknowledged candidate opposing Freebery for his party's nomination to succeed Democrat Gordon. Those casting negative votes are Democrats.

The closest any of the witnesses came to not supporting Coons's measure was a suggestion by Daniel Bockover, president of the Council of Civic Organizations of Brandywine Hundred, that the measure be tabled "and that we try one more time for resolution" of the remaining differences.

Coons rejected that idea, saying that the proposal before Council was a "carefully crafted" compromise reached by the 40-member taskforce, which represented a wide diversity of interests. He described its members as "a group of people who normally don't play well together."

That was indirectly confirmed immediately after Venezky alleged early in the session that a letter sent by the Delaware Apartment Association -- an organization of apartment owners which participated in drafting Coons's ordinance and taken a lead role in gathering support for it -- to 20,000 tenants of its members sought to instill fear that, if the Gordon administration's views prevailed, they would be subjected to arbitrary and capricious intrusion into their homes.

Coons summoned Christopher White, assistant director of Community Legal Aid and a lawyer who represents tenants, to the podium to testify that the same 20,000 people received a second letter from the Delaware Housing Coalition, a tenant-advocacy organization, explaining the proposed ordinance. He strongly implied, but did not specifically say, that the owners' association also sponsored that distribution.

However, there apparently was a bow to further compromise in that the measure before Council actually was the second substitute for the original ordinance. The difference from its immediate predecessor was a provision enabling the land use department to delay going beyond complaint-driven inspections for a second year if the number of complaints received was enough "to permit an effective assessment of the quality of the county's rental-housing stock." The predecessor version allowed a one-year delay in implementing random inspections.

Coons pointed out that the department has estimated that the number of complaints received, as the result of mandatory distribution by landlords of a tenants'-rights pamphlet will climb to about 1,750 in the first year. "Coincidentally or otherwise, that happens to be 5%" of the total number of units, he said.

At a Council finance committee meeting before the session, Coons disputed a fiscal-impact note prepared by the land use department and, as required, appended to the ordinance. It said enforcing the law would require adding 14 new positions to the department staff, five of which would have to be filled by the end of the present fiscal year on June 30 and the rest in fiscal 2005.

All totaled, implementation would cost about $1 million each full year or between $3.7 million and $3.8 million between now and the end of fiscal 2007, according to the note.

Coons said that "is at the highest end" of the assumed range of additional inspection-generating complaints and "implementation costs could be considerably less." Actually, he added, any estimate of how many additional complaints will come forth "is anybody's guess and just a guess."

In any event, financing a system intended to improve the quality of rental housing in the county "is a reasonable investment for us to make," he said.

Despite the swirl of public interest around the proposed ordinance, no Council members or attenders from the public raised any questions or made any comments at the committee meeting. Similarly, there was little comment from Council members during the subsequent session. Testimony there mostly covered points that had been made repeatedly in other venues since Coons introduced his ordinance. Taskforce members have made the rounds of every areawide civic association in the county.

2004. All rights reserved.

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