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OTOC Leaders respond to lawsuit against new rental inspection ordinance

October 10th, 2019

OTOC calls on MOPOA for Collaboration, not Lawsuits

OWH Article 10/9/19

Channel 7 News Story with Restoring Dignity

Hannah Wyble of Restoring Dignity, a partner of OTOC, speaks to Channel 7 reporter about how the rental property registration and inspection ordinance is no cause for a lawsuit.

The Housing Action Team of Omaha Together One Community (OTOC) is disappointed that the Metro Omaha Property Owners Association (MOPOA) has once again chosen a strategy of lawsuits over collaboration with other stakeholders in the city.

  1. We call on MOPOA to choose collaboration over more lawsuits.

Similar lawsuits from MOPOA in the past have done great damage and made the substandard living conditions at the Yale Park Apartments inevitable.  MOPOA has opposed nearly all efforts to improve neighborhoods, from the Omaha Land Bank and Abandoned and Vacant Registry, to the evacuation of Yale Park tenants and the Proactive Rental Registration and Inspection ordinance.

  1. The new Ordinance is Legal and Constitutional

The Nebraska Supreme Court has already ruled that Rental Registration and Inspection is constitutional, as La Vista has been operating a similar program for a decade.  Many cities in Iowa have operated such programs for decades.  The consent decree applies only to complaint-based inspections, not proactive inspections.  The Stothert Administration assured the public that the consent decree would not hamper any future program of rental registration and inspection. Most landlords find the new ordinance reasonable and are not joining the lawsuit.

  1. The new ordinance is needed after previous lawsuits and consent decrees have created a broken system

The Yale Park evacuation of 100 households and over 500 people was the direct result of the failure of the existing system of complaint-based inspections.

Background

OTOC has raised the issue of substandard rental property with the city Planning Department since 2016.  In 2017 we asked candidates for City Council to learn about proactive rental inspections as a national best practice to these serious problems.  In April 2019 the mayor and the city council took a step forward with the passage and adoption of a proactive registration and rental inspection ordinance.  We applaud the ordinance, which puts health and safety of tenants and neighborhoods first.

1 – Lawsuit is unnecessary

The lawsuit is unnecessary.  An Omaha rental unit with a good track record of fixing any past violations will receive one inspection in the next twelve years, and will be charged $125 only one time for that inspection.  The city says when fully implemented they will hire a total of five additional inspectors to implement.  How could this possibly be the basis for a lawsuit?

2 – Rental Registration and Inspection is Constitutional

Renting residential property is a business.  Minimum health and safety standards are enforced by government, whether in restaurants or rental housing.  Hundreds of communities across the country operate proactive rental inspection programs.  Many of these programs exist in the region, including La Vista, Lincoln, Council Bluffs, and Carter Lake.  The Nebraska Supreme Court has already ruled in 2013, in another failed landlord lawsuit, that La Vista’s proactive rental inspection program is constitutional.  For several decades, every city in Iowa with a population greater than 15,000 has operated proactive rental registration and inspection systems without constitutional problems. Inspection ordinances have operated across the country for decades. The ordinance should be presumed to be constitutional.

3 – The new ordinance does not violate the consent decree.

The main claim of the lawsuit is that the ordinance violates the 2015 consent agreement between the city and MOPOA.  Let’s look back at the record.  The question was raised at the time – will the agreement prevent Omaha from enacting proactive rental inspections?  (OWH, Jan 25, 2015)

What if, [Creighton University law professor Catherine Mahern] asked, a future City Council wanted to require registration of landlords and routine inspections of rental housing, such as Lincoln and La Vista do, as opposed to Omaha’s current complaint-based system?

Deputy City Attorney Alan Thelen said the consent decree covers only the items spelled out in the settlement agreement.

“If it’s a direct change that’s an element of the settlement or that the court decreed, then we’d have to go back to the judge,” Thelen said.

But other changes to city law, such as a registration and inspection ordinance, would not require consent from the property owners or review by the judge under the consent decree, he said.

Asked if the city is giving away too much to settle the suit, Thelen said, “The Law Department has recommending approval of the settlement. Implicit in that is the belief that we’re not giving away too much.”

After the Stothert Administration’s Legal Department assurance to the city council that the consent decree would not limit the ability of a future city council to pass rental registration and inspection, the city council voted 6-1 to approve the agreement.  CM Jerram voted no.

In essence the consent decree covers the procedures the city must use when responding to a complaint.  The proactive system will operate on a different level.  Proactive inspections are not a response to a complaint, but a policy response to get ahead of the widespread deterioration of living conditions in rental properties caused by the failed complaint-based system.  An injunction in inappropriate

4 – Consent Decree made living conditions such as the Yale Park Apartments inevitable.

City code enforcement inspectors were prohibited from filing complaints when they saw violations while driving past Yale Park.  In effect, inspectors had to wear blinders as they traveled throughout the city.  They could only wait for a complaint, not follow their own eyes.  Chief Housing Code Inspector Scott Lane has testified to the fact that they have to wear blinders under the terms of the consent decree.

The evacuation of Yale Park happened because of grossly substandard living conditions, as reflected in the 1952 code violations uncovered after inspections.  660 of those violations were at the critical level and another 678 violations were at the high level (OWH Oct 6, 2018).

One family’s child had daily nosebleeds due to natural gas poisoning other children were treated for bed bug bites/lesions.  A lesion is any damage or abnormal change in the tissue of a child, usually caused by disease or trauma.  People lived in horrific and dangerous conditions in violation of 1,952 minimum housing quality standards of the City of Omaha, while the landlord pocketed over $40,000 in rent every month.

Yale Park was the inevitable result of a complaint-based system and a consent decree that caused inspectors to wear blinders, and only look at units in which tenants filed a formal complaint.

5 – Previous Consent Decrees create a broken system

We believe the Code Enforcement Department knows of improvements that could be made that would not violate the rights of landlords.  For example, code inspectors ought to be able to initiate complaints.  If they drive by an obviously deteriorating property, they should have the right to stop and call in a complaint just like anyone else.

When we asked Code Enforcement why it takes them longer to handle a complaint than it takes in Council Bluffs, they mentioned the consent decree.  They talked about how they have to handle and label each photograph taken on the scene because of the consent decree.  That doesn’t make any sense.

Code Enforcement needs to find a better way ahead of a changeover to a new system in which many more inspections will be taking place.  Now is the time to become more efficient.  The lawsuit gives the city the opportunity to make the needed fixes.

6 – Omaha neighborhoods need more collaboration from landlords, not more lawsuits.

The rental registration and proactive inspection ordinance was passed by the city council and signed by the mayor in April.  This marked a new beginning for enforcing minimum health and safety standards in Omaha, and it will take collaboration between the city and the community to make it work.

Social service agencies, city code enforcement, other government agencies, and tenant support organizations are willing to collaborate to help make this work.  Everyone must do their part.  We also need the landlords.  We encourage the responsible landlords, who are the vast majority, to join in this collaborative effort to insure safe and health rental properties for all Omaha tenants.

7 – Most Omaha landlords support reasonable regulations of their industry.

The biggest association of Omaha landlords, the association with the most rental units in the city, has NOT joined in the lawsuit.  Throughout 2019 the Apartment Association of Nebraska has engaged in conversations with community leaders, housing groups, and city and state officials to come to a consensus on constructive changes to city ordinances, so that a situation like Yale Park never happens again.  We do not speak for the Association.  You should contact them for further comment.

Many Omaha landlords who live in our neighborhoods testified in March in favor of the new ordinance.  They know the old system was broken, and a more proactive approach will be needed going forward, even if it means a modest increase in their costs.

In Council Bluffs, landlords were initially opposed to their proactive inspection ordinance.  But once it got going, opposition dissipated.  The only successful lawsuits in Council Bluffs relate to their old system.  There have been no lawsuits against their proactive ordinance passed in 2014.

8 – When all you have is a hammer, everything looks like a nail.

MOPOA has opposed every constructive change in city regulations of rental properties going back decades.  When the city council voted 7-0 to create the Omaha Land Bank, MOPOA was opposed.  When the city council voted 7-0 to fine the owners of unsafe and hazardous vacant properties, MOPOA was opposed – and is now suing the city over that ordinance.

It was MOPOA’s 2013 lawsuit against the city that put this ineffective enforcement system in place.  MOPOA landlords are experts on the current system.  They use it to their advantage.  But that system is broken.  That is why the council and mayor have acted to create a proactive system.

MOPOA’s 2013 lawsuit that led to the 2015 consent decree has been a disaster to code enforcement in Omaha.  The courts should not be running our code enforcement department.  We have had enough of the lawsuits and extremist anti-government agenda.  Our neighborhoods need landlords willing to collaborate with tenants, neighbors, and the city – not more lawsuits.

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