Introduction: Gremlins in the Gears
I will remember the June 4, 2015 meeting of the Ludington Building & Licenses Committee (LB&LC) as a large affair of direct democracy that had more than its share of glitches. Ludington's Proposed Rental Inspection Ordinance: Rental Inspections This Year (PRIORITY, for short) has its share of glitches contained therein, as was pointed out by the two dozen speakers from the public that afternoon, but the glitches I had were technical.
I planned on videotaping the affair, but my charging plug had been damaged by a gnawing domesticated pet, so that was unavailable. I brought my camera, but for some reason, it wouldn't turn on. I brought my pocket recorder, and learned I must have left it on because my memory was full, and couldn't record without downloading files off of it.
The city planners had their own glitches in setting up the basement level community room for the meeting. They had enough chairs, but failed to install any microphone so it was difficult at times to hear the speakers, some of who were soft-spoken, and, of course, some of the older landlords had hearing issues.
The LB&LC Chairman, Kathy Winczewski, led off the meeting by assuring the assemblage that contrary to belief, the PRIORITY was not a done deal. "No decision have been made at all, absolutely nothing has been decided." Of course, this seems to contradict what John Shay says in his cover letter for PRIORITY.
I am no professor of semantics, but as there is no LB&LC meeting between now and June 22, and only one council meeting before that, where the issue does not appear to be on the agenda, the schedule as shown does not offer any sort of public forum to change what has been presented except through executive action by our city management and attorneys in the meantime. City Manager Shay, Assistant Manager Steckel, and City Attorney Wilson all attended, spoke during the meeting portion, and gave no indication of any significant change from the two dozen comments all offering up good points.
Shay himself followed Winczewski by explaining the ordinance, and explaining the $75 per unit cost, $30 registration fees, and other proposed fees were levied so that they would be able to break-even in the program, repeatedly telling us how the fee schedule was to be revenue neutral. I couldn't help but notice that having no program at all would be the best way to remain revenue-neutral.
If the city has its estimated 1500 rental units, and it receives $105 per unit for each three years, then if everyone passes their inspection, it will remove $150,000 from the pockets of Ludington landlords every three years. You can buy a lot of smoke detector batteries and patch a lot of drywall with that kind of money, but the landlords will not be able to devote it towards that. Instead it goes to the government unit that provides the service of rental inspections.
City Attorney Offers a Rebuttal of PRIORITY While Defending It
City Attorney Richard Wilson, who arrived late, would later echo this line of reasoning and tried to give the PRIORITY an air of legality by arguing that in the landmark Michigan case of Bolt v. Lansing, the Michigan Supreme Court said a municipality could avoid a vote of the people for raising revenue in creative ways like this if the fees generated by the government service is equal or less than the expenditures of providing the service.
Probably unknowingly, Attorney Wilson exposed the Achilles heel of this ordinance by introducing that case as justification for not having a vote of the electorate for this 'fee'. The Michigan Supreme Court established three criteria for distinguishing between a fee and a tax:
1) a user fee must serve a regulatory purpose rather than a revenue-raising purpose;
2) a user fee must be proportionate to the necessary costs of the service; and
3) a user fee must be voluntary—property owners must be able to refuse or limit their use of the commodity or service.
In the Bolt case, the City of Lansing lost because the first two criteria were not met. In this immediate case with PRIORITY, those may be appropriate, however, the third criteria is not met: property owners cannot refuse to have their property inspected without threat of fine and imprisonment. This revenue is thus not a 'user fee' but is indeed a tax, and by the Headlee Amendment, must be voted on by the electorate. If our City leaders followed the law, they would put this on the ballot at the next general election if they want to offer the 'service' that few want.
The People Speak
The majority of speakers were landlords, but there were a couple of apartment managers, renters and me who weren't specially invited by City Hall to attend this meeting. The City of Ludington Daily News also attended in force and provided their side of the reporting, which may seem slanted coverage if you were in attendance. In their internet article, they include one line from the twenty or so people who spoke out for their full three minutes (mostly) against the ordinance about passing the costs to tenants, then later a reply by one of the two pro-PRIORITY speakers saying it would only be $3 a month.
Due to my technical glitches, I cannot reprint exactly what was said by any other speaker besides myself, but what I saw among the landlords was that they presented themselves as a caring group who wouldn't mind seeing the proverbial 'slumlord' get drummed out of business in Ludington, but that they did not want to be penalized for it themselves.
Some of the landlords I know, and fully believe that their perception of themselves is true. Many I didn't know, but you could tell from the way they expressed themselves and their pride in their own profession, that they want to provide this needed service to the community, and felt that the city was effectively punishing them with a redundant service of little use.
Chuck Sobanski (pictured above), Linda O'Brien, Tom Tyron, Melissa Reed, Pat Patterson, Remington Greiner, Steve Mustaikis, were among the landlords that provided a wide range of reasons why the ordinance was insufficient or unnecessary. Two renters spoke out. The first, Jackie Steiger, spoke of her own difficulties in currently finding affordable housing and her fears that the ordinance will reduce the supply of rental units, increase their prices, and make living in the city near impossible for low-income individuals.
The second provided a personal story about her own bad experiences with a landlord in the Fourth Ward. Her story was compelling enough, and the attendant landlords seemed to share their sympathy, but she didn't offer any compelling argument as to how PRIORITY would fix the problems she mentioned which included a furnace which wasn't quickly repaired and windows that were painted shut.
I had a five minute speech prepared for the occasion, and was told that we would only have three minutes that day to accommodate all speakers. So I mentally trimmed it down to the following:
"I cannot speak from the vantage point of a landlord, but my qualifications come from being a tenant and an apartment manager for thirteen years.
Under the US and Michigan Constitutions, before police can get a warrant to search someone’s home, they need probable cause of unlawful activity. But due to rental inspection ordinances already in place in Manistee and being considered here, we will permit government officials to barge into someone’s home without probable cause of a crime or even a code violation. Thanks to this rental inspection loophole, criminals who don't rent actually have more constitutional rights than law-abiding renters.
In the proposed ordinance, every rental unit needs a certificate of compliance issued by the city, which can come only after the rental unit is inspected. If inspections are refused by either tenant or landlord, a municipal civil infraction will result, which could result in civil penalties up to $500 per day for continued violation, and imprisonment for three months, by section 1.7 of the city code.
For tenants, mandatory rental inspections clearly violate the Fourth Amendment. A short intrusion can reveal very personal information about one’s religion, political beliefs, emotional or mental state, hobbies, sexual orientation, and/or gender identity. Needless to say, people shouldn’t lose their privacy rights just because they’re renters. Most leases are mindful of the tenant's privacy, this ordinance has none of that. If a landlord was to conduct such an intrusive search into their tenant's unit without exigent circumstances, they could easily find themselves criminally charged by the prosecutor and civilly charged by the renter.
It should be noted that if the inspector finds evidence of unlawful activity being conducted by the tenant during a mandatory inspection, there is nothing in the ordinance that protects the tenant from the inspector notifying other agencies with such data. It should be noted that the rental inspectors would not originally have had probable cause to search and enter the property for those crimes. Owner occupied homes will not have to worry about such civil rights violations, making the proposed ordinance discriminatory and in clear violation of the Fourteenth Amendment also.
Offsetting any possible health or safety improvements that will come at a cost, other financial consequences to renters will be negative. Increased rents and the possibility of losing the only places they can afford because a bedroom is too small, they refuse to be searched, or numerous other arbitrary conditions that exist in the ordinance."
The Advisory Committee Meets
With the public comments fresh in their minds, three possible amendments to the existing proposed ordinance were mulled over. 1) Already-inspected HUD and MSHDA rental units may be exempted from the process. 2) Waiving the registration fee beyond the initial registration if the unit doesn't change hands. 3) Possibly extending the period for inspections if an initial inspection is passed without incident. None of these significantly change the basic legislation, nothing more than lipstick on a pig even if all three are made. Of my Constitutional concerns, the committee remained mute.
My instincts and prior knowledge suggest that our city attorney and city manager really want this ordinance, as does committee member Krauch, who devoted a fair amount of time with his opinions of rental inspections and curing blight in his interview for the Fourth Ward position, which intrigued Shay, Wilson, and others on that selection committee.
Frankly, it doesn't seem odd to me that the people who ignored election laws clearly written in the city charter so that Krauch never got put on the November ballot, would now try to bypass the ballot box once again in passing this Tax On Landlords/Lessees (TOLL), and making it a PRIORITY when our streets are crumbling, our sewers are failing, and our water and wastewater treatment plants need millions to get themselves in compliance with the state after many years of neglect.
Very good points X. It's probably time for the landlords to form a "Landlord Association" in order to protect their rights and hire an attorney to represent them. As you stated correctly, if this passes, the police can sidestep the search warrant process by using the "Rental Ordinance" and teaming up with an inspector. This is being done in other Michigan cities as we speak. Also many cities use the "Code enforcement Agency" by having an inspector tag along on drug raids and other activity that involves housing so the City can vacate the dwelling and board it up by using found "housing code" violations. Most folks don't realize that when the police raid a house, they smash in the doors, then trash the house's interior to the extreme under the excuse of looking for illegal substances. This process makes the house unlivable and so allows an inspector to tag the dwelling and vacate it. There have been many cases involving raiding the "wrong" house. I'm for getting rid of drug dealers but it must be done without abusing the Constitution which protects all of us. Ludington's citizens must get a handle on this before it passes.
I'm hoping I can get what others said at the meeting sent to me in a message here or that others would post them, because I wasn't the only one who did my homework, but I may have been the only one to look at the underlying loss of innate privacy and property rights by the tenant, and by extension, the landlord.
Please feel free to share any good research that you find, Willy. I've found that these types of rental inspections have been successfully challenged in the courts. I really think the Bolt decision gives a good basis to quash the whole idea of the council enacting this, unless either the service is free or voluntarily asked for (as if anybody would pay $105 for an unnecessary rectal exam). Thank you, Dick Wilson for the legal advice.
I don't know what World Shay lives in but his statement "the cost per unit to landlords would be $105 every three years, or an average of $35 a year" doesn't begin to cover the expense of having a rental inspection. The inspection fee is only the beginning. Any violations found may require a second opinion by a licensed contractor, then, most likely, a contractor is going to be required to make repairs followed by numerous re-inspections until all has been complied. All the while the City is on the back of the landlord pushing for compliance but the landlord is not on his/her own schedule. If anyone has worked with the building trades they know that the contractor's schedule is going to determine if and when the work is done. After all the aggravation this could cost thousands of dollars which will most likely cause rents to rise. As I said before, inspections should be on a tenant complaint basis.
The problem with "housing codes" is, if they are not broad enough to deal with everything considered substandard or unsafe then it's useless to have a code that only scratches the surface of what can be wrong with a dwelling. If to stringent then there is a risk of losing rental stock because maintaining housing with to burdensome of a code would pressure landlords to sell their property.
It's a fine line to walk in order to have a "safe" but inexpensive rental program. Then there are other Cities such as Detroit which caused a massive vacancy rate due to the expensive and intrusive housing codes. Detroit initiated a "sell as you go" requirement that not only covered rental property but all dwellings sold in that City. It doesn't take a genius to see how that worked out. People couldn't afford to fix up their houses so they could be sold. The only choice they had was to abandoned them. Of course that wasn't the only reason Detroit's housing stock crashed but it was a big part of it.
Was at the meeting, like so much of the people there that had to take off of work because it was at 3:30 and I couldn't stay due to a job I needed to finish up. When everything was said and done and what it comes down to is all about higher taxes and more control. Tom summed it up best, is this Constitutional? NO. They will try to ram this through after seeing how many people took off work to attend. If they ever had a evening meeting they would have to use the Ludington School auditorium to handle the larger crowd. What a crock they couldn't even have a microphone or a show of hands on who supported it and who didn't. Whats next, inspecting our cars before we buy them to make sure that they are safe?
The Thursday early afternoon meeting made it hard for people to attend, and the fact that this was just an 'advisory committee' meeting reduced numbers also. I tend to stay away from such meetings because not only are they not allowed to really do anything, but they can stray from the Open Meetings Act if they so desire. They didn't need to allow for any public comment, but it would have looked silly if they sent this proposal out for input, and didn't allow any.
The disallowing of a straw vote by a show of hands was just more evidence that the city leadership does not care much about what the people think, they just care about how much money and rights they can squeeze from them. This is why they yearly put four each of millage rates and levies ordinances out, even though the last few years they haven't needed to.
If the Headlee Amendment determines that a millage rate rollback is needed (in general, your real and personal property values are decreasing), the council can keep them at the same levels. All other areas I know of do not go after more money when their citizens are already getting hit.
Willy, there is a local Landlord Association. When I had rentals I did belong to it. It still exist but I don't know when/where they meet now.
Can someone find out who is the main person for the Landlord Association we could voluntarily donate instead a portion of the government fine of $105.00 to the association to use to protest with media outlets and yard signs. Just think about it; if we get a significant number of the landlords to donate to this cause we would have a nice war chest to fight this scourge.
There is a reference to a Mason County Landlord Association in the 2014 LPD Annual report, beyond that, I have no idea who or what are contacts in this group, but the MCLA has been around since at least the 1960s:
Finely and definitively said guys. We have total agreement, and so, where does this end?
It will all end with the demise of all humanity as we know it.
Just heard the noon news and they said the Ludington City Council meeting for Monday, 6/8/15, will again be addressing the city manager's term of contract to serve more than one year, and also the appointments of the city clerk and city treasurer instead of voting them in. I thought this discussion was moot and not being discussed or passed with the negative public comments of last winter. I guess if you don't succeed at first, you must try to force feed these notions down the public's throat now again. Maybe this time they plan to vote it in?
Late last year, Councilor Winczewski did portend that the city council would revisit the issue regularly this year, tackling one of their seven pet proposals, so maybe we should count ourselves fortunate that they pared the list from seven to four, and aren't discussing it until now in June.
I think it's a red herring though, hoping to get the usual grief from residents who still care about democracy to talk against changing the clerk and treasurer positions into appointive offices, and soften or dilute the feedback from people upset with the PRIORITY. Nowhere on the agenda is there anything about the PRIORITY, and so even though the council wants to first read the ordinance on the next meeting on June 22, they don't want any critiques before showing it on the weekend before that meeting.
The charter proposals will go nowhere with a popular vote even with the COLDNews devoted complicity, the city council and manager will just have to keep on doing what they have been doing all along-- ignoring the document.