Thank you to John Todd for this material. John has much experience in real estate, and cares deeply about the rights of property owners.
To: Mayor Mayans and Wichita City Council members:
Subject: Comments and concerns regarding the proposed changes for the Housing Code of the city of Wichita.
The city’s housing code has problems. Here is an overview of the problems. Some suggested improvements follow.
General concerns covering the Housing Code ordinances and enforcement.
- Has a “crime” actually been committed if a property owner owns a property in which a board and paint separate (peel) in violation of the Housing Code? Are folks who are found in violation in front of the city’s municipal court becoming part of the growth in the population in the county jail sometimes?
- Is there “selective enforcement” of the existing ordinance? Does peeling paint receive the same attention in Reflection Ridge as it does in Midtown?
- Are city, county, and school district owned properties subject to the same code? Are code violations on government owned properties subject to no penalties?
- Is “blight” the cause of neighborhood crime or is the lack of enforcement of criminal activity in certain neighborhoods creating the neighborhood flight and subsequent need by property owners to secure their properties by boarding up windows and doors?
- Is the Municipal Environmental Court free and independent from the legislative (City Council) and executive functions (City Manager) of the City? Does the setup of the Municipal Court meet the “separation of powers” doctrine we expect from government?
Recommendations to improve Wichita housing and the city’s housing code:
- Reports of prospective housing code violation complaints need to be in writing with copies of the signed complaint given to the property owner and to the person reporting the alleged violation. Nothing undermines a sense of community more than government allowing one group of people to anonymously “snitch” on another group.
- Mediation between the aggrieved parties should be required before the complaint goes to court. The Wichita Bar Association has a system of mediation already in place.
- City Code Enforcement Officials should be licensed, and be required to have at least five years of prior “hands-on” building experience.
- Municipal Court Judges need to be elected by the people rather than appointed by the City Council. The City Council could handle this through the passage of a Charter Ordinance.
- Blight needs to be defined in the ordinance.
- City owned properties should comply with the ordinance just like privately owned property.
Here are the detailed comments on the proposed changes in the city’s housing code.
- Comments concerning the new term “Resident Agent” are discussed below.
- Section 20.04.055 The Minimum requirements for maintaining vacant dwellings.
Proposed Section 11 Vacant Structures. The phrase used to describe the material used to board windows and doors shall now in addition to having a protective coating now must be “matching the predominant color of the structure”. The question of what is a matching color leaves wide latitude on the part of the city code enforcement official deciding what is matching. Perhaps a contrasting color might be appropriate? And, perhaps after a damaging weather event, unpainted plywood or OSB board should meet the requirement?
3. Section 20.04.200 the penalty section.
Existing Section. Since the notice of violation that the city issues to a property owner refers to a “uniform criminal complaint”, perhaps the word “crime” should be added after the word “misdemeanor” or suggested “misdemeanor crime”?
Existing Section. The penalties discussed in the existing section seem adequate and allow the Municipal Court Judge what might be considered extreme additional latitude if he or she invokes the provision in the existing ordinance, “Each day that any violation of this ordinance continues shall constitute a separate offense and be punishable hereunder as a separate violation.” Also, jail time for a Municipal Court is limited to “a period of not exceeding one year”. Invoking this provision of the existing ordinance would potentially allow multiple years jail time to be assessed in excess of this maximum “not exceeding one year”.
Proposed Section. The new proposed ordinance essentially doubles existing fines. Before increasing the fines, several questions need to be answered. How is the current fine schedule working? Are convicted property owners paying the fines? What is happening to property owners who do not have the money to pay the fines? Are there property owners who are being assessed fines people who could pay for the repair of their property if they had money they are being fined to do the repair(s)? Is jail time being assessed against property owners? Who bears the costs associated with incarceration? Are the additional fines actually a new “revenue source” for the city? The new proposed ordinance also requires the “mandatory” imposition of fines by Municipal Court Judges with a provision requiring alternative community service in lieu of the fines for defendants who are financially unable to pay the fines imposed. Several questions, relating to “mandatory” and alternative “community service” for the poor need to be answered before this ordinance is passed. Don’t “mandatory” fines take away the need for judgment on the part of the Municipal Court Judge when dealing with property owner defendants in his or her court in seeking compliance with the housing code ordinance? Are there not circumstances where defendant property owners that are physically, mentally, as well as financially unable to care for their properties due to age, loss of employment, disability, or other extenuating circumstance who needs “judgment” on the part of a judge rather than mandatory fines or community service? Could not a defendant property owner be earning money to repair his or her property or actually doing the repair during the time imposed for “community service”? Does the registering of a defendant property owner’s property with the Superintendent of Central Inspection comply with “equal protection under of the law” that has been a requirement under our legal system?
Chapter 20.04.010 the Definitions are amended. The definition of “Resident Agent” is created.
Proposed Ordinance No._______Section 30.01.020 of the Code of the City of Wichita, Kansas. The responsibilities and potential liabilities of the “resident agent” might be troublesome. Would a licensed real estate broker or salesperson be exempt from this ordinance due to provisions enumerated in the Real Estate License Act? Is it legal for an agent to be held responsible for the action or inaction of his client property owner? Why would an agent be willing to take on responsibilities for the actions or inactions of his client property owner? Is this a “can of worms” for a “resident agent”?