APT. ASSN. URGES BARRETT VETO OF RENTAL INSPECTION ORDINANCE

Say Veto Will Save City from 

"Expensive Litigation"

Warn Bill "Could not Withstand Legal Scrutiny"

Special to the Readers of Milwaukeeworld.com 

By Michael Horne

And The Milwaukee World Hound Dog Team


[UPDATE -- Tuesday, December 8th, 2009 -- Tom Daykin of the Milwaukee Journal Sentinel wrote about this issue in his Land and Space Blog today. Likewise, Charlie Sykes made it a topic of conversation on his 620WTMJ-AM radio talk show.--Ed.]

In a press release issued today, Monday, December 7th, 2009, attorneys for the Apartment Association of Southeastern Wisconsin say they have sent a letter to Mayor Tom Barrett urging him to veto Common Council Ordinance 090429.
The ordinance, passed on a 9:5 vote of the Council at its meeting of Tuesday, December 1st, 2009, calls for a pilot program requiring inspection certificates to be issued before apartments can be rented in two target neighborhoods.
The Association has opposed the bill since it was introduced in July, 2009. The release outlines some of the group's concerns with the enforceability of the law.
It also claims the law may be unconstitutional in its provisions, since it grants sole authority to the Commissioner of the Department of Neighborhood Services for the implementation, enforcement, alteration and review of the act's provisions.
Association lawyers also point to what they call deficiencies in the drafting of the law, including its lack of specifics, referenced only in an attached "Inspection Checklist."
They add that there is no provision in the ordinance to enable legal occupancy of any subject rental property in time for its January 1st, 2010 inception.

The Mayor has seven days, excepting Saturdays, Sundays and Holidays to sign legislation presented to him by the counsel. If the ordinance is not signed by Thursday, December 10th, 2009, it would go to the council for reconsideration.
See release and links below.

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MAYOR URGED TO VETO RESIDENTIAL RENTAL CERTIFICATE LEGISLATION

DEFICIENCIES CITED; MOVE WOULD FORESTALL EXPENSIVE LITIGATION

MILWAUKEE December 7, 2009 -- A Mayoral veto of Common Council Ordinance #090429would spare the City considerable expense defending it in court, according to a letter sent to Mayor Tom Barrett from Tristan Pettit, president of the Apartment Association of Southeastern Wisconsin, Inc.

The ordinance targets rental property owners in two Milwaukee neighborhoods.  It would compel an $85 per unit inspection fee prior to the issuance of a certificate permitting rental occupancy.

Echoing the group’s earlier sentiments urging a Council vote against the ordinance, the association pointed out numerous deficiencies in the legislation, which grants sole authority to draft, implement and review the Inspection Checklist – indeed the entire law -- with the Commissioner.  For example the standards (also known as the Inspection Checklist Items):

·         are not incorporated in the ordinance,
·         are not required to be legally posted,
·         can not be appealed,
·         and can change at the will of the Commissioner of the Department of Neighborhood Services.

 “This could not withstand legal scrutiny,” said Attorney Matt Lerner, legal counsel to the Association, in a letter to the city attorney. The Commissioner cannot legally review his own orders and decisions.”

The provisions are part of a 5-year “Pilot Program,” which the Association says strains the exemption given such programs from the Equal Protection Clause of the United States Constitution, which could be yet a further cause of legal action.

The legislation is to take effect on January 1^st, 2010, at which time all apartments in the target neighborhoods – even those legally occupied at the time based on existing leases – must be licensed.

Yet, on January 1^st, 2010, the five inspectors to be hired by the City will have not yet begun their jobs of evaluating the properties based on the 100 + items on the Inspection Checklist. This is just one of the bill’s absurdities, the Association suggests.

“If there is ‘ice or snow’ on the sidewalk of your property on January 1^st, when the law takes effect, you would be denied a license. Or, if the inspectors don’t get around to you until June and there is ‘excessive dampness’ in your cellar, the rental contract would likewise be impaired,” said Atty. David Halbrooks, speaking for the association.

“Not only is the legislation unconstitutional, its provisions are arbitrary, capricious and administratively unenforceable,” Halbrooks added. “The mayor should do the right thing and avoid associating his name with this legally deficient legislation.

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