| Cincinnati Vacated Building Maintenance Licenses Ordinance |
| Friday, 22 August 2008 | |
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Included in the Vacant Property Registration Ordinance Matrix is Cincinnati's Vacated Building Maintenance Licenses Ordinance. The following report in the Business Courier of Cincinnati discusses concerns over equal enforcement and the general concern of urban blight. Vacant-buildings issue full of concerns The city of Cincinnati is facing questions from City Council and possibly a class-action lawsuit over its enforcement of vacant-building rules. Councilmember Laketa Cole, chairwoman of the Neighborhoods and Public Services Committee, has asked the city administration to update her committee on the city’s Vacated Building Maintenance Licenses ordinance and address concerns of uneven enforcement detailed in the Business Courier’s Aug. 15 special report “Empty Promise.” “I am disappointed that it’s not done equally and fairly across the board,” said Cole, who pushed to strengthen the ordinance with a 2006 amendment. “At the same time we’re trying to fight crime, we have to fight the vacant buildings, as well. And if we’re not doing it simultaneously, we’re fighting ourselves.” Cole expects the administration to update her committee Sept. 3. Accused of selective enforcementMeanwhile, a 10-month-old lawsuit that might be recast as a class-action complaint accuses the city of selectively enforcing its rules to force the sale of empty buildings to favored property owners. The October 2007 lawsuit, filed in U.S. District Court in Cincinnati, alleges Cincinnati’s program violates the U.S. Constitution’s equal protection clause and is “an abuse of corporate powers” conferred upon Cincinnati by the Ohio Constitution. Attorneys Christopher Finney and Curt Hartman, representing two property owners, are trying to get the case transferred to state court, where they hope to add to its total number of plaintiffs. “It is our intention to convert this into a class action over the next couple of months,” said Finney, a partner in the Hyde Park firm Finney, Stagnaro, Saba & Patterson. “We’re going to try to get the whole ordinance thrown out. The uneven enforcement is not an accident. “It’s quite intentional.” The city disagrees and has argued that city government has a fundamental responsibility to protect its citizens and its first responders by requiring vacant buildings to be maintained. “We’re really talking about the very worst buildings in the city – the most unsafe,” said Paula Boggs Muething, the assistant city solicitor defending the city in the case. “There is a blight issue. But there’s also a very present safety issue to emergency responders. “We don’t want firefighters to be subjected to roofs and floors that will cave in on them. I think that we have a pretty good case.” Only four VBML inspectorsThe Vacated Building Maintenance Licenses ordinance, or VBML, is designed to get vacant buildings back into productive use or demolished, if necessary, as quickly as possible. The ordinance spells out standards that building owners must meet once their property is declared “vacated” by city officials and charges them fees if the buildings remain vacant. The longer the building sits vacant, the higher the fee. But the city has only four building inspectors devoted to VBML work. That’s down from seven two years ago, according to what inspectors told the Courier in 2006. City officials now say, however, that no more than five inspectors were ever assigned to VBML enforcement. Whatever the number, property owners and neighborhood activists argue that enforcement is spotty at best. The Courier’s report generated lots of discussion among readers, nearly 400 of whom responded to an online Business Pulse survey that asked, “What should Cincinnati do to manage its thousands of vacant buildings?” The most popular response – outsourcing the enforcement of VBML rules – was supported by 43 percent of survey respondents. Taking building owners to court won 41 percent support in the business sentiment survey, which is not scientific but reflects a quick view of what readers are thinking. Reaction is not limited to Courier readers. Hamilton County Recorder Rebecca Prem Groppe announced a new initiative with Cincinnati Councilman Jeff Berding Aug. 21, vowing to help all local governments in the county quickly find the owners of abandoned properties – and their mortgage holders. The ownership information then would be passed along to building and health inspectors to ensure that empty buildings are complying with regulations addressing health and safety issues. Not meant as a silver bulletThe issue is complex. Edward Cunningham, division manager of the city’s property maintenance and code enforcement division, took exception to a number of aspects of the Courier’s story. The VBML is one of several tools the city uses to deal with vacant properties and was never meant to be viewed as a silver bullet, he said. “The main purpose of it was to recoup some of the municipal costs to attend to vacant buildings,” he said, adding that the ordinance has done a good job in that regard. In 2004 and 2005 – before council amended the VBML ordinance and increased the associated fees in 2006 – the city collected a total of $91,050 to help cover its costs related to vacant buildings, Cunningham said. But in the two years since the ordinance was beefed up, the city has collected $628,200, he said. “This shifts the burden from the general taxpayers to the person that owns this building that’s responsible for it,” Cunningham said. What about 3CDC? Others don’t see it that way. Over-the-Rhine property owner Aaron Etzler, whom Finney represents, said the city wants nearly $12,000 in VBML fees and $20,000 in structural improvements for six of his 16 vacant properties, including one that has a first-floor convenience store tenant. At the same time, Etzler said, the nonprofit development group, Cincinnati Center City Development Corp., or 3CDC, has dozens of properties that have not yet paid licensing fees. “They should do away with the ordinance,” Etzler said. “Or at least, 3CDC should have to play by the same rules.” Etzler sold one of his properties to 3CDC but hasn’t been able to find buyers for other properties. He blames VBML for that, too. “If you’re looking into buying a building and the city tells you that have to pay for this license, that drives buyers away. My only option is to hold onto my buildings,” he said. The next step in the lawsuit is a November hearing on the issue of whether Cincinnati’s VBML fees can be considered a tax. If so, the case likely will be transferred to state court. If not, it would remain in the federal system. Some claim overkillBut even some critics say that uneven enforcement is a far cry from what Finney’s suit alleges. “Asking a federal court to declare the VBML unconstitutional is like using a chain saw where a scalpel is needed to fix the problem,” said Over-the-Rhine Foundation Executive Director Michael Morgan. “Enforcement needs to become more equitable, and the waiver process needs to be friendlier to well-intentioned property owners. But I hope that the general concept of the VBML and its increasing fee structure are upheld. “As flawed as it currently is, the VBML is not difficult to fix, and it can play a critically important role in decreasing blight and encouraging redevelopment.” Paul Rudemiller, president of the Camp Washington Community Board Inc. nonprofit development corporation, said the problem is that the city has issued only about 50 licenses under the VBML program as of the first of this year and that owners are paying fees to “buy time” with inspectors, thereby avoiding the intent of the ordinance. “The VBML has to be looked at as a way to get property out of bad hands and into good hands,” he said. “If the city is unwilling to file liens, and it doesn’t have the money to tear ’em down, then the VBML is toothless.” Then there’s West End developer John Walter, who says the city should avoid the cry of neighborhood leaders for quick demolition. “Building tear-downs should be a serious process,” he said. “I think it’s a crime to tear down a building if there’s some economic potential.” Wide range of opinionsWith such drastically different views to consider, the city works to strike a fair balance between the competing interests and their criticisms, said Cunningham, who doesn’t think the fees buy owners time under the VBML ordinance. After all, each of the four inspectors enforcing the ordinance has about 400 buildings where enforcement is necessary, he said, calling a caseload of more than about 200 buildings per person “unmanageable.” But even with the city budget as tight as it is, Cunningham said the city administration has steps under way to improve the VBML ordinance and its enforcement. The staff has asked the city’s lawyers to pursue placing an affidavit of fact on the titles of particularly bad vacant properties, he said, which would in most cases result in the fees’ payment once the property is sold. That could be more effective and less expensive than liens. And he said the Department of Community Development also has asked city lawyers to draft an ordinance to present to council that would create a board of citizens to consider the specifics of property owners’ cases so that the ordinance could be applied in a more nuanced way from neighborhood to neighborhood, another of the complaints detailed in the report. To view the online article, please click here.
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