HomeMy WebLinkAboutA003 - Letter from City Attorney dated April 25, 2010 - legal issues with proposed amendment to Rental Housing Code r �
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d ' --e_c�ky City Attorney's Office
'J�! 515 Clark Avenue, P. O. Box 811
Caring People N, Ames, IA 50010
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Exceptional Service
April 25, 2010 Q [�
The Honorable Ann Campbell, Mayor, APR 2 6 2011
and Members of the City Council
of the City of Ames, Iowa CITY CLERK
CITY OF,ANTS. IOWA
Re: Proposed Amendment to Rental Housing Code—Legal Issues
Dear Mayor Campbell and Members of the City Council:
Brian Torresi, representing the Ames Rental Association in his letter to Council dated April 22,
challenges the constitutionality of proposed amendments to the rental housing code that would
require rental property owners to replace "S traps" in drains by July 1, 2016. Mr. Torresi argues
that the proposed amendments violate equal protection, due process, and the takings clauses of
the United States and Iowa Constitutions. These arguments are entirely without merit.
The Association's letter complains that the proposed amendment to the rental housing code
"makes an irrational distinction between tenant-occupants and owner-occupants of residential
dwellings in determining the plumbing specifications in certain properties. " The Association
alleges that by distinguishing rental housing from owner-occupied housing the City of Ames
fails to provide equal protection of the law. However, it is well-settled law in Iowa and across
the country that rental housing constitutes a separate and distinct class that justifies special
regulation. 7A McQuillin Mun. Corp. §24:510 (3rd ed.).
Cities have a legitimate public policy expectation that residential rental properties meet health
and safety standards. See, e.g. City of Fort Dodge v. Martin, 695 N.W.2d 43 (Iowa App.
2004)(enforcement of rental property code is not a regulatory taking). Iowa courts have
consistently upheld local rental property codes that hold rental properties to a higher standard.
See Ely v. City Council of the City of Ames, 787 N.W.2d 479 (Iowa App. 2010)(noting that
rental housing is'held to a higher standard than owner-occupied properties).
The Iowa General Assembly also treats rental residences differently than owner-occupied
residences, finding that legislation is needed to "insure that the right to the receipt bf rent is
inseparable from the duty to maintain the premises." Id. citing Iowa Code §562A.2(c). State law
mandates that cities adopt enforcement procedures that include regular rental inspections and
certification of inspected rental properties. Iowa Code §364.17(3).
The enforcement of the Uniform Plumbing Code standards for"S traps" and "P traps" is neither
new, nor is it unique to Ames. The Iowa Court of Appeals considered the issue last year, and
affirmed the decision of the district court that imposed fines and ordered rental property to be
vacated until the.owners replaced"S traps" and brought the property into compliance with the
code. City of Des Moines v. Sub -Bohn, 2010 WL 2383947 (Iowa App. 2010).
The United States and Iowa Constitutions require similar treatment for similarly-situated
persons. Differences in treatment must have a rational basis. Owners of residential rental
property and owners of owner-occupied residences are not similarly-situated. The courts and the
legislature have found that there is a rational basis for treating them differently. The proposed
amendments to the Ames Rental Housing Code that are before the Ames City Council satisfy the
constitutional requirements.
Yours truly,
04 k " C4-"/
Douglas R. Marek
City Attorney
Cc: Steve Schainker, Brian Torresi