Council Work Session

At a previous work session (12-3-07) there was discussion of the various changes that needed to be made to the City Code to close loopholes and ambiguous language. One such issue pointed out by Terry Cohen was that if the landlords don't comply with the licensing laws there isn't really a penalty with any teeth. She had mentioned the possibility of revoking landlords exceptions and ending their non-conforming use of the properties not in compliance with the law. Paul Wilber said he researched the issue, and in a memo issued to City Council members and the Mayor he advised against revoking the landlords non-conforming status because he found one case in all of Maryland that said revocation for a mere licensing violation is too harsh.

Wilber wouldn't say what the case was and he wouldn't discuss what was in the memo, which was marked "privileged and confidential." So he's giving this legal advice to the City Council and the Mayor, but no one else is allowed to know about it so they can check the case and see if his legal reasoning is sound.

Here's what the law is on non-conforming uses, first from our own City Code:

Chapter 17.16 - Nonconforming Lots, Structures and Uses
(Paraphrasing) 17.16.010 - Lots, structures and uses of land that were legal before the zoning code changed, but that are no longer allowed within that zone under the changed code, may continue to exist, subject to the following:

...17.16.040 - Nonconforming uses.

B. A nonconforming use may continue so long as it otherwise remains lawful.
C. A nonconforming use may not be changed to another nonconforming use, extended or enlarged without approval of the board of zoning appeals in accordance with Article II of this chapter.
D. No building, structure or lot where a nonconforming use has substantially ceased for a continuous period of one year, whether or not fixtures or equipment are removed, shall again be put to a nonconforming use.
G. The board of zoning appeals may grant an extension to the one year time limitation upon application to the board showing that strict compliance with this one year period will result in either an unwarranted hardship or injustice to the owner, provided that such extension will not be contrary to the public interest.

Purich v. Draper Properties, Inc.
395 Md. 694, 912 A.2d 598
Md.,2006. supports the reasoning of B. and C. above. "A nonconforming use exists if a person utilizes property in a certain manner that is lawful before and up to the time of the adoption of a zoning ordinance, though the then-adopted zoning ordinance may make that previously lawful use non-permitted."

It also supports D. above. "Special exception that was granted for gas station property was not issued for modernization of the property, but rather for operation of the property as a filling station, and thus, under zoning ordinance, the property's previous nonconforming use status, which was for use as a gas station, was abandoned when the property was operated as a permitted use under the special exception for six months; once the six months elapsed the nonconforming use could not be reestablished."

"[T]he earnest aim and ultimate purpose of zoning was and is to reduce non conformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned, and the ordinances forbid or limit expansion of nonconforming uses and forfeit the right to them upon abandonment of the use or the destruction of the improvements housing the use."

Salisbury Ordinance 1958, found in the City Code at 15.24.490 . . . "if the dwelling or dwelling unit was occupied by three unrelated persons, during a period of one year, prior to December 16, 2002. The occupancy may continue as a nonconforming use."

These rental properties housing numerous unrelated people in single-family residential neighborhoods are "non-conforming uses." If they cease to operate for that non-conforming purpose for 12 months, they lose their non-conforming use. Also, the City Code clearly states they keep their non-conforming status only so long as they remain otherwise lawful.

Is it lawful for them to violate the licensing requirements? Those licensing requirements are law, not mere suggestions. If they're not lawful, they should lose the non-conforming status. This is just another way the administration is trying to protect the landlords.

Another thing they discussed was that they had 100 delinquent landlords. They didn't say how many residences were in violation under those 100 landlords. They said 9 of the properties were sold. They didn't say whether the new owners were also landlords or if they were still renting the premises or if they were in compliance with the licensing.

They said 8 of the properties fell into "other" categories without saying what those categories were. They said there were still 27 landlords out of the original 100 who were still not in compliance. Of those 27 landlords not in compliance, they had 60 properties not in compliance.

So out of 100 landlords to begin with, 73% had come into compliance. Shanie was saying there was 97% compliance, I don't know what numbers she was using. If they started with 700 properties and only 60 were still not in compliance that would be around 91% in compliance. But they were also not mentioning the hundreds of properties that had never bothered to register with the City to begin with, that are obviously not in compliance.

Stevenson said there was no way they could know about them. Yes there is. Go street by street, take the property owner information from SDAT and go door-to-door asking for the owners. You will have a large number of people saying, I rent from the owner. That's how you find the illegal rentals. It's called a housing sweep. It's easy, it's methodical, and it gets the job done. If you're truly interested in doing the job to begin with.