January 15, 2004

County Council president Christopher Coons said he probably will try again to have a rental code covering residential properties in unincorporated areas of the county enacted. Meanwhile, a version of a code 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.

"The folks who worked this hard [to draft a code] are still willing to continue to work to get it passed," Coons told Delaforum. "We should all be able to work together to craft a compromise that gets us moving forward on [improving the quality of] rental housing."

Coons and the administration of County Executive Tom Gordon locked horns on the issue. Coons claimed his proposed ordinance was a "carefully crafted" compromise among a broad range of interests and positions. Gordon said it would have been a weak law and charged that strong support for it by the Delaware Apartment Association, an organization of landlords, demonstrated that it would be ineffective in regulating their business.

It was uncertain after Council voted down Coons's measure following more than two hours of public testimony and discussion on Jan. 13 what will happen next. For several weeks, the issue has been a hot topic among civic associations around the county. Officers of several areawide civic associations testified in favor of Coons's ordinance.

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

However, she stopped short of saying 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 county rental code. Wilmington and Newark have rental codes.

Another administration source told Delaforum that no decision has been made yet on whether to push an alternate ordinance. Coons said his reading is that the land use department's version cannot muster the four Council votes necessary for passage either.

While indicating he was willing to try again, Coons said failure to unite Council behind a single acceptable version would likely result in "no legislative action and all." And, he added, "even more time will go by when we should be making progress on rental housing."

 Before Council voted, Coons declared that failure to enact the ordinance would be "a tragedy."

In his later comments to Delaforum, he called attention to testimony at the Council meeting concerning a recent code-enforcement 'sweep' of an apartment complex which reportedly found some 500 violations although it was preceded by 48 hours notice and did not cover all the units in the complex.  The fact it was conducted just five days before Council was to have voted on the ordinance and was the only such concerted effort in at least a year "demonstrated ... that rental property quality and code enforcement has not been a high priority for this (Gordon's) administration."

He said George Haggerty, assistant general manager of the land use department, confirmed that in his testimony. In a different context, Haggerty said that the department does not have a "legislative mandate" to put special emphasis on code enforcement involving rental property.

Nether version of a proposed rental code would have any effect on the underlying county standards set by various property codes.

The second-ranking official in 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, 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. Coons, who is a lawyer, and two other lawyers who testified and one who cited a civil rights law authority, disputed that.

As Delaforum has previously reported, the Department of Land Use's draft ordinance 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, Freebery's views prevailed in the face of a parade of witnesses who were both unanimous and, for the most part, strong in their endorsement of Coons's ordinance. Mostly all of those who testified had either been members of the taskforce or could be identified with people who were.

There was a strong element of partisan politics in the outcome of the vote -- something that is very usual in County Council proceedings.

Coons was joined 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.

In his later comments, Coons characterized that split as not so much Democrat-Republican politics and as it is a stance relative to being favorably or unfavorably disposed toward the county administration. "The 'registration' that matters on Council is really whether you are pro- or anti-Gordon and Freebery and this issue came down more to that alliance than to partisan registration," he said.

He added that Council members had been subject to "aggressive last-minute lobbying by the administration."

Earlier and in a different context, Gordon told Delaforum that he was "trying hard to keep politics out of the [rental code] issue."

The closest any of the witnesses came to not supporting Coons's measure at the Council meeting 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 apartment association -- which participated on the taskforce 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 apartment 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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