Guest Column: City fails public-private partnership

June 6, 2012

By Paul Arena
Rockford Apartment Association President

The Rockford City Council is considering an ordinance for the “Registration of Residential Rental Property.”

The word “registration” is important in the debate of this proposal. From the perspective of housing providers, we would call this a “licensing ordinance” only because that is how an ordinance of this type is referred to in other communities.

I don’t agree that “licensing” is an accurate description of these ordinances, either. To me, licensing is a process where a person is trained to perform a task and then demonstrates by testing that they are competent to perform that task. In Illinois, licensing of rental housing is a system where government gives itself the authority to seize control of property and displace the occupants of that property. The misleading labeling of these ordinances is part of the problem.

The public should be aware that representatives of the Rockford Apartment Association (RAA) along with representatives of the Rockford Area Association of Realtors (RAAR)have been meeting with the city regarding regulation of rental property for more than four years.

We are very disappointed that, after the time we have spent discussing this issue and attempting to find resolution, the city circulates a proposal that encompasses all of the provisions of a licensing ordinance that we oppose most. During these meetings, RAA and RAAR have offered alternative ideas for regulation that we believe would be effective in improving conditions of rental property (see the full ordinance below).

These negotiations began when the city claimed they could not get in touch with property owners. We agreed early in our discussions to registration of contact information for properties that are rented. We suggested using water billing accounts because every property already has one.

To make that method work, RAA members agreed to a change in the law to require that water accounts could no longer be in the tenant’s name. After that change was put in place, we were told the database for water billing could not accommodate a name and contact number for properties.

RAA then hired a programmer to write a registration database and offered to give it to the city at no cost, so we could move forward with registration. They declined. That database is posted and available for use at www.RockfordApartmentAssociation.org.

If a registration system was going to be implemented, RAA requested that the contact information be used to notify us if the police have been to our property, and we were told the police do not have the time to call us. When we requested that someone use the registration information to contact us, so we could clear up property standard violations and avoid the code enforcement process entirely, we were accused of wanting the city to manage our property for us. That leaves us wondering why we need to register a contact number if no one intends to contact us. We also asked that tenants responsible for property standard violations be held accountable, and that idea was also rejected.

We proposed a nuisance ordinance to address disruptive behavior. That approach would first attempt to resolve problems before imposing penalties and displacing the occupants of those properties. The most recent version uses a community board as the mediation group.

That approach was taken in response to concerns raised from the police department. They pointed out that they could not spare the manpower to mediate these issues, and we agree that their very limited resources should be directed elsewhere. I think there would be great benefit in including community members in addressing behavior issues in rental property. It would help to increase awareness of the complexity of the issues housing providers deal with.

Property standard issues are separate from behavior problems. In our opinion, the city has more than enough authority to respond to property standard complaints. There is already a complaint-driven system in place that can result in significant financial penalty on property owners. The heavy-handed approach the city typically takes by imposing fines of up to $750 per day has frequently caused owners to abandon property. When an investor is struggling to manage their property, piling on a massive debt does nothing to resolve the problem.

In cases where the owner does not abandon the property on their own, the city has the power, at their complete discretion, to condemn and vacate a property. There is no specific standard to qualify a property for condemnation, no training required for the person who makes the decision to condemn a property, and no defense to the property owner to prevent it from happening. Is that not enough power?

Many properties in Rockford sit vacant and abandoned because investors don’t see a reason to take on the risk. Proposals such as the one presented to the council are a clear example of why the most competent operators of rented property are not enthusiastic about expanding their business here.

After the RAA and RAAR have meetings with the city for years, the aldermen have been presented with a proposal that we have made clear we are most opposed to. It includes penalties on the property owner over tenant behavior we could never prevent, a per-unit tax that ends up being paid by tenants, and the forced inspection of occupied homes. That violates everyone’s right to privacy and sets a dangerous precedent.

The ideas we suggested and we believe would address all of these problems have been ignored. The city should stop attempting to seize control of our businesses and work on ways to change the system to produce the result everyone desires. That’s a good public-private partnership.

Chronic Nuisance Ordinance

Activities sometimes exist on residential properties that cause unsafe conditions for neighboring residents, disrupt neighborhood and community tranquility, and cause a disproportionate strain on municipal and county law enforcement resources. These activities can become a nuisance to the community. An effective method of abatement of such activities is to foster collaboration among the owner of the property where the nuisance activity occurs, the occupant in control of the property when not owner occupied and local law enforcement officials.

Section 10 — Definitions

(a) “Chief law enforcement officer” means the chief of the Rockford Police Department or his or her designee.

(b) “Nuisance activity” means any activities described in items (i) through (iii) of subsection (f) of this Section and which property owner has been notified as having occurred, provided owner has supplied the law enforcement agency with contact information either by registering information with said agency or by posting contact information at the entrance to the property. If owner has failed to provide contact information, either by registering or by posting information, notice to owner shall not be a condition precedent to proceeding under the terms of this ordinance.

(c) “Occupant” means any person with a legal right to reside in the property.

(d) “Owner” means any person having any legal or equitable interest to title in the property in question.

(e) “Person” means any natural person, partnership, limited partnership, corporation, limited liability company, or other entity organized under the laws of any state of the United States.

(f) “Chronic Nuisance” means nuisance activity which occurs on three or more instances, on the same property, during any 120-day period of any one or any combination of the activities listed below and as a result of any three separate factual events that have been independently investigated by any law enforcement agency that have resulted in an arrest, issuance of a warrant for an arrest, or issuance of a ticket or citation.

(i) Disorderly conduct as defined in Section 26-1 of the Criminal Code of 1961

(ii) Any felony crime or class A misdemeanor

(iii) Violation of any municipal ordinance or State of Illinois statute controlling offensive use of property.

(g) “Permitted” means to knowingly suffer, allow, consent to, acquiesce of expressly assent or agree to the doing or an act.

(h) City of Rockford Housing Board means a committee of four community volunteers, appointed by a majority vote of the Rockford City Council to a two-year term, whose purpose is to mediate situations which result in nuisance behavior. One committee member is to represent the interests of municipal government, one a citizen of the City of Rockford who is not employed by any unit of government and who represents the interests of neighborhood associations, one a person who has owned and leased residential property in the City of Rockford for five consecutive years preceding their appointment and to represent the interests of the residential rental property industry and one a person who has leased their residence in the City of Rockford for five consecutive years preceding their appointment and to represent the interests of tenants.

Section 20 — Procedure for addressing chronic nuisance activity.

(a) After independent review of any police reports and determination by the chief law enforcement officer that the activity described therein as occurring upon the property meets the definition of a chronic nuisance and that the owner or occupant permitted the nuisance activity to continue, the chief law enforcement officer shall refer the case to the Housing Board, who may then require that the owner thereof or his or her or its property manager or other designee and the occupant appear before the Housing Board to discuss the Nuisance activity and steps the owner and occupant can take to mitigate or abate the activity in accordance with the following procedure.

(1) The Housing Board shall notify the owner or any other person who owner has registered as having authority to represent the owner in writing that activity at the property has met the status of a chronic nuisance. Such notice shall be provided by either personal delivery or by certified mail or by other reputable courier service that provides written confirmation of delivery, addressed to the owner or owner’s representative and such other address as may be shown on the tax rolls of Winnebago County. Notice shall also be sent by first class mail or other reputable courier service that provides written confirmation of delivery to the occupant of the property known or identified by the owner or owner’s representative. The notice shall contain the following information:

(i) The street address or a legal description sufficient for identification of the property where the nuisance activity has occurred.

(ii) A statement by the chief law enforcement officer with a concise description of the offenses which meet the standard of nuisance activity and that the nuisance activity has become a chronic nuisance as defined by this ordinance

(iii) Demand that the owner or owner’s representative and occupant when property is not owner occupied respond and meet with the housing board within 10 business days of confirmation of delivery of notice. Refusal of receipt of notice by the owner or occupant shall be deemed receipt of the notice for the purposes of this Section.

(2) At the meeting between the housing board and the owner or the owner’s representative and the occupant, the housing board may request that the owner and occupant implement a reasonable abatement plan designed to alleviate and prevent future occurrences of the nuisance activity upon the property. The abatement plan as applied to the owner is limited to the owner performing necessary maintenance and repair of existing access, security and lighting, limiting access to common areas through the installation of locks, graffiti removal, the posting of “No Trespass” signs, banning of individuals who are not tenants of the property who engage in nuisance activity, initiate eviction proceeding with municipal assistance, requirement that the owner implement tenant screening policies and procedures and requirement that owner attend professional property management training. The abatement plan shall be reasonable under the circumstances in its objective, cost and scope, and shall be commenced and fully implemented within 30 days of the meeting with the housing board or such longer period to be fully implemented if not practically feasible to do so within 30 days.

If the nuisance activity has or is being conducted by an occupant of the property or a guest of the occupant, then the occupant shall be advised of their obligation to maintain the premises in compliance with the laws listed in section (f) of this ordinance and that failure to do so may result in the termination of the occupant’s legal right of control of the property or the imposition of fines against the occupant. In the event the occupant fails to respond and meet with the housing board or the occupant permits the continuation of the nuisance activity, then the housing board may inform the owner that owner’s failure to take appropriate action to rescind occupant’s legal right of control of the property shall be considered as the owner permitting the continuance of the nuisance activity. If owner files suit to regain control of the property based on information provided by the chief law enforcement officer, then the chief law enforcement officer shall assist by reasonably cooperating with the owner, including, but not limited to, providing law enforcement officers or any other municipal or county employee as witnesses regarding the nuisance activity.

(b) If, after implementing the procedures of paragraph (2) of subsection (a) of this Section:

(i) between 90 and 365 days after the meeting, the chief law enforcement officer receives a report documenting the occurrence of a subsequent nuisance activity upon the property which was permitted by the owner, or

(ii) the owner, within 30 days of the meeting or such other reasonable amount of time under the circumstances, fails to cause the implementation of a reasonable abatement plan as requested by the housing board, or

(iii) the owner fails to respond and meet with the housing board within the 10 business day period without good cause, then the City of Rockford may seek that the activity be declared a chronic nuisance in a civil action in a court of proper jurisdiction.

When an owner or the owner’s representative responds and meets with the housing board as required above, no statements made in connection with the furnishing of that response or in a meeting shall constitute or be used as an admission that any nuisance activity has or is occurring. This subsection does not require the exclusion of any other evidence which is otherwise admissible and offered for any other purpose than an admission by the owner or the owner’s representative.

Section 25 — Commencement of action; burden of proof; determination of a chronic nuisance; defenses:

(a) The City of Rockford, in a civil action in a court of proper jurisdiction, may seek a declaration that the owner or occupant of a property has permitted a chronic nuisance under this Ordinance. The City shall have the initial burden of showing by a preponderance of the evidence that:

(i) the activity at the property meets the standard of a chronic nuisance as set forth is section10(f) and

(ii) the procedures of Section 20 were followed by the chief law enforcement officer, and

(iii) either the owner or the owner’s representative failed to respond to notice served pursuant to Section 20 (a) (1) or failed to implement an abatement plan pursuant to Section 20 (a) (2)

(b) Upon the court determining that the elements of subsection (a) of this Section have been met, then the court may, after the consideration of any defenses set forth below and all other facts and circumstances deemed relevant by the court, declare that the owner or occupant of the property permitted chronic nuisance.

(c) It is a defense for the owner or occupant of the property to an action seeking the declaration of the activity as a chronic nuisance that the owner or occupant of the property, at the time in question could not, in spite of the exercise of reasonable care and diligence, prevent a third party from engaging in the conduct constituting the subsequent occurrence of nuisance activity.

It shall also be a defense for an owner, if prior to the owner being served process of the civil action, the owner or the owner’s representative notified a law enforcement agency of suspected nuisance activity occurring on the property, has begun legal proceedings to regain control of the property from an occupant, or that the nuisance activity was conducted by a person who has been banned from the property.

It shall also be a defense if an owner has made a good faith effort to implement the reasonable abatement plan requested by the chief law enforcement officer, pursuant to Section 20 (a) (2) but the nuisance activity has not been abated.

It shall also be a defense if an owner, in trying to abate the nuisance activity attempted legal action to regain control of the property from an occupant but was denied by a court.

Section 30 — Penalties.

(a) If a court determines that the activity chronic nuisance under Section 25, the following abatement of penalties may be imposed by the court upon the owner or the occupant.

(1) For a first offense, a civil fine not to exceed $1,000 or an injunction requiring the abatement of the nuisance activity that resulted in the activity being declared a chronic nuisance by the court.

(2) For a subsequent offense, a civil fine not to exceed $5,000 or an injunction requiring abatement of the nuisance activity that resulted in the activity being declared a chronic nuisance by the court.

(3) Not withstanding clauses (a) (1) and (2) of this Section, and whether or not it is a first or subsequent offense, if the court finds that an owner failed to respond and meet with the chief law enforcement officer within the time prescribed without good cause, or if the court finds that an owner willfully failed to implement a reasonable abatement plan requested by the chief law enforcement officer, the court may impose a civil fine not to exceed $10,000 or an injunction prohibiting the occupancy of the property where the nuisance activity reached the status of a chronic nuisance or in the case of a multi-unit property, any unit thereof in question, for a period of up to 6 months. In the event occupancy is by lease agreement, then the injunction prohibiting occupancy shall begin upon expiration of the current lease term.

(4) Any fines imposed on the owner and remaining unpaid after 60 days of imposition of said fines shall attach to the property where the nuisance activity occurred as a lien.

(b) If the court issues an injunction requiring the abatement of nuisance activity by a date certain set forth in the order for injunctive relief, the court, in its discretion, may impose a further fine not to exceed $100 per day for each day the nuisance activity persists after the date certain,

(c) In imposing any penalty, the court shall consider the following factors, and shall cite those found applicable:

(1) The action or lack of action taken by the owner or occupant to abate the nuisance activity upon the property.

(2) Whether the nuisance activity upon the property was repeated or continuous.

(3) The magnitude of gravity of the nuisance activity.

(4) The cooperation of the owner or occupant with the chief law enforcement officer.

(5) the cost to the City of Rockford for investigating and correcting or attempting to correct the nuisance activity.

(6) Whether or not the nuisance activity could have been prevented by the owner or occupant exercising reasonable care and under the circumstances.

From the June 6-12, 2012, issue

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