A very important decision has just come down from the Court of Appeals of Minnesota involving the constitutionality of rental inspections. The case is McCaughtry v. City of Red Wing, 2012 WL 2077191, 2012. Landlords and tenants challenged the rental property inspection ordinance of the City of Red Wing which allowed inspections of property even if there was no evidence of a violation as long as inspectors obtained an administrative search warrant. The court said that:
Appellants have not established that the RDLC is unconstitutional on its face under the Minnesota Constitution on the ground that it permits the issuance of administrative search warrants by a judicial officer, without an individualized showing of suspicion that particular code violations exist in the rental dwelling to be inspected.
This case is significant given that rental inspections are crucial in fighting blight and crime. The landlords and tenants intend to appeal to the Minnesota Supreme Court so there may be further developments regarding this. It’s even possible this could go all the way to the United States Supreme Court.
One of the biggest problems facing local governments these days is finding the resources to maintain vacant properties. These homes are empty because of the foreclosure crisis and for the most part, lenders with mortgages on the property are reluctant to pay for the upkeep so the problem falls on the city, town or village. One would think that during the worst housing disaster in our life time, state government would help local governments deal with these properties by passing legislation that makes it easier to hold lenders responsible. Unfortunately, in Illinois, little is being done by the General Assembly. Bills that would help us fail year after year. At least now we have some information as to why it’s so difficult. The Chicago Tribune this week published a long article detailing how the Speaker of the House, Michael Madigan, represents numerous banks in his private legal practice. In Illinois he pretty well controls what legislation sees the light of day and what bills do not. When I travel out of the state to do trainings, I am ashamed to say that I am from Illinois when I hear what other states are doing. For example, in some other states, if the local government cuts the grass, the cost goes on next year’s tax bill. When the taxes are paid, the local government gets paid. That doesn’t happen in Illinois. There is a law the purports to allow this process but it was drafted as to be unenforceable. Illinois is becoming a punchline to a joke that isn’t very funny.
Every time I teach I learn something. I was in Cedar Rapids at the end of last week doing a presentation at the IowACE meeting. One of the attendees told me about how she uses Facebook to investigate her cases. She’s been trying to shut down an illegal speedway that the parties insist is not a racetrack. Turns out they have a community page to, guess what, save the speedway. I have used Facebook in prosecuting people for possession of marijuana and I know that police officers use it quite a bit but this is the first time someone has told me about using it for a code violation. It is a very good idea and gives inspectors another avenue to explore. I think it might be useful in cases involving illegal home occupations. Has any one else had success using social networking in this way?
One of the constant problems I run into with defendants is trying to make sure proper service of notices or citations occurs. Too frequently defendants refuse to accept these documents making it more difficult to obtain enforcement. When I teach Legal Aspects and discuss this issue, I suggest a few crafty options. For example, you do not have to put your return address on the outside of the envelope making it obvious the papers are coming from your jurisdiction. I’ve had inspectors who have sent envelopes with balloons imprinted on them with the heading, “Prize Headquarters”. One inspector I know collects greeting card envelopes in which to send notices. When I taught at Region III recently I discussed the various ways to serve these uncooperative individuals including amending the code to include service by private carrier (doesn’t everyone sign for FedEx or UPS?) Some of the women in my class went home and took my suggestions even further. They sent the notice in a box with items (like free pens, pads of paper and magnets) to further entice the defendant to accept service. And, it worked! Thanks to the folks in IA for this tip of the day.
Yesterday when I was teaching at the Region III conference in Chasta, MN, one of the participants shared with us his experiences with Compliance Connections. It’s a website that allows municipal inspectors to get connected with the right entity to gain code compliance on a problem property. It’s sponsored by Safeguard and the inspector says he’s had unbelievable help from the website. He told us that he’s had grass cut in a couple of days, he’s gotten calls from service companies that aren’t owned by Safeguard to promise compliance and is very pleased with the results. Apparently, Safeguard is trying to reduce the number of notices of violation that lenders are receiving for vacant properties or problem properties in their portfolios. It is definitely worth checking out when you have difficulty determining who is responsible for a property. The website is located at http://www.complianceconnections.com/
I’d love to hear from people who have tried it.
A very worrisome lawsuit has been filed by the Federal Housing Finance Agency which oversees Fannie Mae and Freddie Mac, against the City of Chicago which recently passed an ordinance that requires mortgage holders to register vacant buildings 30 days after they become vacant or 60 days after a mortgage goes into default, whichever is later, pay a registration fee, keep the premises free of weeds or trash and make sure they are structurally sound.
The lawsuit says that:
….the city’s ordinance encroaches on the FHFA’s role as the sole regulator and supervisor of Fannie Mae and Freddie Mac. It says Chicago cannot mandate how the agencies handle vacant buildings for which they are the designated mortgagee.
The problem is that Fannie Mae and Freddie Mac own about 258,000 mortgages in Chicago so a considerable number of vacant structures would be unregulated if the lawsuit succeeds. Illinois law makes it almost impossible for a municipality to cut weeds, fix up property and add the costs to the property tax bill. This has really hampered our ability to address problem properties which is why ordinances like the one in Chicago are so important.
At the Springfield conference, my topic was effective code enforcement programs. After hearing about all of the substantive issues involving healthy homes, it was really a privilege to be able to speak about how to accomplish our mutual goals. There was a lot of frustration over the problems we are facing because budgets are being slashed, programs cancelled and properties are getting worse because of the foreclosure mess. Despite this, it was important to find out that there are a lot of committed professionals who are forming partnerships to address these issues. And, there are steps inspectors can take that don’t cost much money to implement, for example, making sure that renovators are certified in lead paint removal before issuing a building permit. Who knows how many health problems children are spared because of this simple procedure? The training in Springfield was offered free of cost as were many of the publications. I hope my readers will make use of the links I have created to find these organizations. I want to thank Eleanor Davis from the IDPH, Lead Paint Program, for inviting me to speak at the conference and giving me the opportunity to meet the other speakers. I hope it will lead to even better enforcement opportunities.
One of the most interesting speakers at the Springfield conference was Dr. Catherine Karr, who is a pediatric environmental health specialist. She reviewed a wide variety of home health hazards including lead paint, radon, mold, carbon monoxide, fire, and pests. So many of these topics intersect with property maintenance and fire prevention enforcement. She is a member of a group called PEHSU (Pediatric Environmental Health Specialty Units) which is a national network of academic-based centers of expertise that service health care providers, public health professionals, communities and families. Asthma, for example, is a huge health problem for children and adults and is made worse by living in homes that have mold problems and pest infestation. Illinois is included in the Great Lakes Centers’ Pediatric Environmental Health Specialty Unit based at the University of Illinois at Chicago. All areas of the country are part of some regional unit. PEHSU is a great resource for information on all of these issues. When inspectors are dealing with a property where children live, the long term effects of the unhealthy conditions should be a top priority for enforcement.
Julie Morris from the EPA addressed the Springfield conference on “Lead-Based Paint, Renovation, Repair and Painting”. She discussed the various rules and exclusions involved in renovating buildings that may have lead paint problems. She encouraged people to let her know when someone violates these rules. EPA receives complaints from a variety of sources, especially certified renovators who see illegal work being done by other companies. There are a variety of resources available at http://www.epa.gov/lead/pubs/lscp-renov-materials.htm including some new publications on compliance and a new training guide on renovation. She mentioned that in Minnesota all building permits must be checked for RPP certification.
Lynne Page Snyder from NASCSP, the National Association for State Community Services Programs, spoke about “weatherization plus health” at the Springfield conference. Funds from the Department of Energy’s Weatherization Assistance Program (WAP) and DHHS Community Services Block Grants are being used to assist low-income families to improve the energy efficiency of low-income homes. NASCSP is a professional membership organization for the State and territorial administrators of these programs. WAP’s mission is to reduce energy costs for low-income families, particularly for the elderly, people with disabilities, and children, while ensuring their health and safety. While the weatherization assistance program is not specifically aimed at creating healthy homes, it can lead to fixing property maintenance problems. For example, kitchen and bath exhaust fans may be installed to combat mold and moisture problems. Window replacements may reduce lead paint hazards. NASCSP has put on conferences around the country to try and connect organizations and do cross-training. It is launching a public website soon that will map WAP and healthy homes programs nationwide.
