Tuesday, October 30, 2012

The Weiss Proposal for Rental Safety and Health

Council member Jack Weiss has an updated draft proposal for an ordinance that he believes will ensure the health and safety of tenants in Bellingham.  At a Sehome Neighborhood meeting on September 25th, he reviewed this draft proposal for licensing and inspection of rental housing in Bellingham.  This follows an unsuccessful effort by him to move on the issue of rental inspections before the city council in August 2011.   [You can read about that attempt here.] 

The revised proposal, although resembling that made last year, is the only one being presented at the moment.  I have been in contact with Mayor Linville who has indicated that she has some ideas for approaching the rental health and safety issue that she will present and outline of this to her Neighborhood Advisory Commission (MNAC) in the near future.  I will not attempt to characterize in detail her thoughts but suffice it to say the plan involves licensing landlords and mandating inspections of rentals by private, certified code inspectors, the cost being born by the landlords.  As for Jack Weiss' proposal, you can read it in its entirety here or follow the various sections I have reproduced below before my comments on those sections.

Prior to reviewing the various aspects of the proposal at the Sehome meeting there was as short discussion, introduced by Weiss,  of going after the “bad apples”.  The “bad apples” concept, that is, passing a licensing and inspection ordinance aimed primarily at the "bad" landlords was raised during last year’s discussions on a health and safety law.  This approach assumes that these “bad apples” are discoverable and that efforts to reign in these non-performing landlords will bear the most fruit.  On the surface, the idea seems quite reasonable until one drills down to view its origins and the process by which such a plan might work.  

The assumption from the outset is that most landlords are "good" and should not be “punished” (in the words of the rental industry) by being lumped into the category of being “bad”.   It is not a question of "good" and "bad" landlords but one of being able to recognize unsafe or unhealthy conditions.  Landlords, with few exceptions, are unprepared and untrained to do thisEquating inspections with “punishment” is also a major factor.  Once one agrees with these two propositions , the false logic falls into place.  Proponents of this logic do not mention that we already have dozens of inspection regimens in place, such as those for restaurants, pet shops, barber shops, hotels, and spas.  Need I also mention code inspections for new construction, permits and inspections for major repairs and additions to existing structures?  These laws are in place across the nation not as “punishment” but to protect the public and, to a great degree, the businesses themselves from intentional or unintentional liabilities.  All businesses ("good" and "bad") pay for these inspections either through taxes or fees that collected together allow jurisdictions to hire impartial and qualified inspectors to ensure the health and safety of the citizens.

Nobody talks about passing or revising ordinances to out “bad apple” restaurant owners and leaving the rest to their own devices to imperil the lives of diners.  The health issues associated with rentals are no less imperative than those associated with restaurants or hotels.  Finding the “bad apples” is a process that is ill-defined and leaves gaping holes in any inspection regime.  The process assumes that "bad" landlords will be found through some version of a complaint driven system which is actually no more than we have at present.  Complaint based systems do not work (Click here to read about the Centers for Disease Control commentary on complaint based systems.)

Here is the proposal by section followed by Zonemaven comments:

[Weiss] “To create a collaborative, positive approach to promote safe rental housing that meets health and safety standards.  The intent of this program is to maintain and increase property values, preserve neighborhoods and quality of life, reduce deteriorating rental housing, and ensure that renters have safe and healthy housing.

[Zonemaven] I agree with the intended purpose of the proposal, however, I am not sure that the elements of the proposal fully support these intentions.”

[Weiss] “All rental units would register annually with the City and pay a fee not to exceed $24/unit.  All registration fees and other program income will be dedicated to rental-related enforcement and educational activities.  Smaller properties (Single family, duplex, or ADU units) where the owner also resides in the property are exempt from registration and inspection.  Properties receiving HUD inspections or new properties with a Certificate of Occupancy within 4 years must register but the fee will be waived.  After a property is initially registered, renewal can occur via a postcard form if no additional changes to the property have occurred since initial registration.”

[Zonemaven] Weiss has proposed an annual fee of $24/unit would likely bring $350,000 to $400,000 a year in revenue based on a rental market of from 17,000 to 18,000 units.  This amount clearly can sustain an active licensing and inspection program with an administrative manager and several code inspectors/enforcement officials.  As the program progresses and the condition of the rental stock in the city improves, the program can be adjusted, perhaps allowing for the reduction of licensing fees, the number of inspectors or both.

I do not envision a problem exempting rentals that are of the nature of a room in a single family home or an attached accessory dwelling unit (ADU) in a house that is occupied by the owner.   Duplexes may also fit into that category if the owner occupies one half of the duplex, however, detached ADUs are a completely different matter.  These dwelling units are often converted garages that have been put together by non-professional and unlicensed workers or owners.  A large number of existing units have likely never been granted proper building permits or been inspected for meeting code requirements.  Bellingham's municipal code also requires registration of such dwellings but we have learned that less than 100 of these units are registered as required while the reality is that hundreds of illegal ADUs proliferate throughout our neighborhoods.  These rentals must be brought under control.  If the city is unable to perform that relatively straightforward task, the effectiveness of any rental inspection program will also be called into question.

Exemptions for dwelling units that are under other inspection regimes, such as HUD, are valid.  Newly constructed units need not be inspected initially but should be placed on an inspection scheduled several years hence.

[Weiss] “Inspections of units will be limited to health and safety issues drawn from the International Property Maintenance Code and the RCW.  Inspections based on complaints of alleged violations from a list of health and safety issues will receive priority attention.  If the inspector confirms the violation is valid and believes other units owned or managed by the violator could also have health and safety issues, the inspector may schedule additional inspections for these units. 

Self-certification that a property meets requirements of code will be required of all units and placed on a three-year rotating schedule for submission.  At the time of initial registration, the City will inform the owner or manager when units will be required to be self-certified.  Self-certification is a simple one-page checklist verifying the adequacy of health and safety concerns with the rental unit.  A proactive City inspection of a small sample of self-certified units may occur on a randomized schedule depending on resources.

All initial City-provided inspections and one follow up-inspection to verify compliance of corrections are at no cost.  An additional fee will be established for subsequent inspections.  Rental owners or managers may pay a private certified inspector for these services as an alternative to City-provided inspectors.”

[Zonemaven] The Weiss proposal envisions inspections drawn from the International Property Maintenance Code and the Revised Code of Washington.  This is perfectly acceptable.  In fact, the city can simply draw on the work already done by other cities in Washington with inspection programs, for example Pasco.  You can read about their very effective, 15 year old inspection program here and also view their inspection form.  Their simple, six category program (General, Electrical, Plumbing and Heating, Exists/Escapes/Safety, Structural, and Sanitation) has a total of 30 specific questions to determine the livability of the unit.  Notably their ordinance on licensing and inspection has already been through the Washington court system.

Unfortunately, the Weiss proposal envisions a three year rotating schedule of "self-certification".  Under this proposal, the landlord would fill out a one page checklist that would verify the health and safety concerns with respect to the rental unit.  From my point of view, this is a useless exercise.  This is already the de facto situation except that the landlord does not fill out a piece of paper and submit it to the city.  The fact is that the landlord, not being a trained and certified code inspector, should not be put in a position of finding deficiencies for safety elements that he or she cannot possibly attest to with any certainty whatsoever.  "Self-certification" may feel good to some, however, there is nothing in the process that provides any more guarantee of safety in the future  than does the current law which requires nothing.  An unintended consequence may well be that the landlord is placed in a “gotcha” situation  wherein he must self-certify without having the requisite knowledge.  Realizing this, the landlord would have to rely on a certified inspector (at his own cost) so as not to be placed in jeopardy if randomly inspected later or if caught up in a lawsuit with a tenant over an injury or sickness caused by living in the unit 

[Weiss] “The City will provide and advertise a web site for tenant and owner resources associated with renting.  The City will also provide a brochure listing rights and responsibilities under this program.  Additional educational efforts will occur as identified and needed.”

[Zonemaven] Certainly a parallel process of education could be useful, however, any program must take into account the tremendous volatility within the rental market in which thousands of units are turned over every year mostly among young students.  Coordination of such education efforts with the local institutions of higher learning (WWU, WCC and BTI) is necessary but is not likely to be very effective.

[Weiss] “Failure to register by the stated deadline will result in a fine of up to $100/day/unit.  Failure to register after 30 days of the stated deadline will result in a prohibition of renting the unit(s) for up to six months.  After this prohibition period, all fines and a Certificate of Self-Inspection will have to be submitted to the City to initialize or re-instate registration.
Failure to correct violations within 90 days of inspection will result in a determination that the rental unit is unfit for habitation until the unit is brought into compliance.”

[Zonemaven]  Any effective ordinance on health and safety of rentals must have some enforcement teeth.  Anything short of an effective system of fines and sanctions will ensure the continued existence of scofflaws. 
[Weiss] “Through a separate ordinance, the City will codify a civil warrant authority to assist in breaking down major barriers to enforcement of most health, safety and nuisance violations associated with housing.”

[Zonemaven]  Civil warrant authority has been authorized by the Washington State legislature in a 2010 statute that formalizes and defines the licensing and inspection of rentals statewide. What I have not seen in this proposal, although Jack Weiss and the council have spoken about it in previous years, is making violations of a rental licensing and inspection ordinance civil infractions.   This avoids criminalizing behavior and allows for a more expeditious resolution if a case goes to court.

[Weiss] “Through a separate ordinance, create an abatement fund.  This fund would be used by the City to abate severe conditions that are not being addressed in a timely manner by the property owner.  This revolving fund would be reimbursed by billing the property owner or, in the worst case, filing a property lien.  Funding of principal into this fund would come from a portion of the monthly per unit license fee.” 

[Zonemaven]  An abatement fund is an excellent idea if municipal finance procedures can accommodate such a fund.  This is an excellent enforcement mechanism that demonstrates the seriousness of city with respect to the condition of our rentals and the primacy of the safety and health of renters.

[Weiss] “Through a separate ordinance, change BMC 20.08.020 (F)(1) to read as follows: “Family.  One or more persons related by blood, marriage, or adoption, or not more than three four unrelated persons, living together within a single dwelling unit.”  This change is a realistic compromise between the current unworkable and little enforced code and a complete abolishment of this requirement that some have called for.  Some provision may have to be considered to grandfather some units in proximity to Western Washington University if these units otherwise pass health and safety inspection.”  

[Zonemaven]  The so-called “rule of three” has nothing to do with an ordinance to ensure the health and safety of renters.  The ordinance regarding the number of unrelated in a single family zoned area is a zoning issue that has its origins in the city’s ability to control the density within various areas of the city.  The legality of such ordinances was approved 1n 1974 by the Supreme Court of the United States in a case referred to as Belle Terre v Boraas.  You can read more about that case here

However, I repeat,  this issue is irrelevant here and should not be a part of an ordinance whose objective is ensuring the health and safety of renters.  For the purposes of this ordinance, the number of people in a rental should only be a factor if that number presents a health or safety problem.  Examples of such issues are the un-permitted creation of walls or other structures to accommodate additional renters.   Often such modifications block exits or create other unsafe conditions.  It is these unsafe conditions, not specifically the number of people, that should trigger action under a rental safety law.

This proposal by Council Member Weiss can serve as a starting point for discussionWe still have a way to go before Bellingham enacts an effective rental safety and health ordinance.


Diana McKinney said...

I was surprised to see the bit about an abatement fund. I haven’t developed an opinion about whether I support or disagree with the idea – just a surprise to me. I realize that one of the stated purposes of the proposal is to keep property maintained and keep property values up, but it strikes me that someone performing changes to private property without their knowledge or consent would be a potential problem. It’s certainly preferable than letting property degrade if it’s not being maintained properly. But if I were a landlord, I might object strenuously to this.

It seems more reasonable that the “penalty” for not adhering to standards would be to declare the property unrentable (as mentioned elsewhere in the proposal).

I guess it helps address situations where the landlord simply doesn’t have enough money to make required improvements.

Maybe the “abatement fund” would be better used to help relocated affected residents if they have to move from a sub-standard rental.

I don’t know. Just thinking.

Zonemaven said...

Another reader of my blog contacted me separately to opine: "I believe the private inspectors-only model may prove not be very workable -- the reason being that this is likely to cost quite a bit more than a city inspector therefore raising the cost of a program to owners and perhaps affecting rents. In Pasco hardly anyone avails themselves of the private option. Unless, of course, this is an “in perpetuity” license that would not ever require another inspection. There is an obvious problem with that approach as well.
Seattle had originally discussed a private-only inspection approach for their program but I notice that it is now only an option (as required by RCW and legal rulings)."