Milford City Council discussed changes to the rental permit code at a recent meeting, considering a waiver of the rental permit fee if the property was rented to a relative. City Planner Rob Pierce stated that there were residents who did not feel they should pay a fee if they were renting to a relative as it also opened them up to rental unit inspections.
“There’s a little back history. I believe, ever since the inception of this program, we’ve had people register, even if there’s family members in the particular rental unit,” Pierce said. “But there has been a handful of people that have not wanted to comply with getting a license because they had an elderly parent staying in the home or a child and they felt like there wasn’t monthly compensation being made between the tenant which was a family member and the household. And so, it really didn’t, I think, become a major issue until we started doing a more proactive rental inspection program. Because at that point, I think people were generally okay with registering.”
Having inspectors go in and inspect a unit caused some discomfort with property owners, Pierce explained, which is why he added the amendment to the code for council’s review. The code would waive the rental permit fee when there is a spouse, parent, sibling, grandparent, grandchild, uncle, aunt, niece or nephew living in the property. The code allowed for the relationship to be by blood, adoption or marriage.
“I agree with this, in general, however, the point of the rental inspection program was to improve some of the rentals that we’ve seen that most people would think were not up to par,” Councilman Todd Culotta said. “We kind of have gotten into that groove where the inspection program is not real difficult, but it’s pointed out things to make rentals more livable. We allow this wording and anybody that owns two houses can say, “Well, my cousin lives there, my son lives here or whatever.”
Councilman Mike Boyle pointed out that the city could require proof that the person living there was a relative. Councilman Culotta explained that a parent, child or grandparent would be easy to prove, but a cousin could be more difficult.
“Having a blanket waiver just because you are related, why would you apply. Well. Why? Well, I think back to what you have noticed in the rental program, it is almost unfair to the renter and the landlord because if my house has a window that won’t stay up, it fails the rental inspection, but I own my house, who’s gonna tell me to fix it,” Councilman Culotta said. “But if I have a rental, I really want that to stay up for safety reasons. They’ll fail me on that, and they won’t pass it until I fix it. So, I don’t want to make it any more complicated than it is, and I understand this because I know there’s some situations where we’ve run into where somebody owns a house, their sister lives there, their son lives there, and they don’t support themselves for physical and medical reasons. I would agree because of that, but just in general, if our rental fee was $500 that would be one thing but it’s not.”
Councilman Jason James agreed with Councilman Culotta, stating that he did not think the rental process was cumbersome.
“I don’t think we’re relieving a burden on someone. When a landlord or family, I don’t want to introduce gamesmanship into the system,” Councilman James said. “That is where I’m at, and especially when we get down to aunts, uncles, nieces and nephews. I mean, you may be able to, but I think in essence there’s a benefit received. You still could argue there’s a rental landlord relationship, even if they charge him $1. Still, because I tell you, Uncle Sam says nothing is for free. If you’re not charging them, you’re still going to pay taxes as you did because you could have and should have, that’s a different story. I get it. But I’m just not comfortable with making mass exemptions like this.”
Pierce stated that the language was very similar to what Smyrna adopted in their code. He stated that he is not comfortable with the way the current code is written as it was not clear enough, but he would go with whatever council desired. He just felt that the changes would make the ordinance clearer while also addressing the needs of property owners in the town. Councilman Boyle asked if this applied when the property owner also resided in the home and Pierce stated that if the property owner lived there, it was not considered a rental. An auxiliary dwelling, however, with a family member living in it could be considered a rental.
“if it’s an accessory apartment with a separate address, separate entrance, separate utility, separate firewall, separate kitchen, separate living areas, it could be in the same structure, but it’s a separate part of that house, it’s a rental,” Pierce said. “But, if I live in a house and I rent a bedroom out of my house, we’re living in a communal setting. They use my kitchen, they can eat my Cheerios. We don’t make folks like that register a rental property.”
Councilman Boyle asked what kind of liability the city would be under if there were exceptions granted that prevented inspections of rentals. He questioned if something happened, could the city be liable because the property had not been inspected.
“It’s simple. Fundamentally an individual or a company if you’re Incorporated, if you have rentals, can’t live in two places at once. It’s true,” Councilman Culotta said. “So because of that, either this is your primary residence or this one is, but if this one is, and that one’s around, under our definition, that’s the case to get all registration fees subject to inspection. But I have a bigger question. Mike just brought up as far as liability, because we have a rental inspection program. Because I would argue we don’t have a defined checklist of things you need to meet other than the codebook. Are we liable? This is just an example, one thing that our rental inspection program pays attention to are faceplates on your outlets. If they miss that and somebody gets shocked, injured or possibly dies, or we missed that in the rental inspection, are we liable?”
City Solicitor David Rutt explained that there would have to be proof of when the outlet cover was removed as it could have been taken off after the inspection.
“I mean, you can always get sued. Yeah, there’s nothing to say somebody’s not going to sue you. Then they have to prove it. You have offensive defenses,” Rutt said. “One of the things here is if there’s a waiver, if you go through and adopt this, when there’s a waiver there should be some type of indemnity that the landowner signs with the city because they have exempted themselves from the inspection. They should be able to opt in if they want to have the inspection. And then, but if they opt out, then they should sign some type of an indemnity and release the city.”
Councilman Culotta still had concerns about the waiver.
“Look, I am Mr. Anti-regulation. But I think this rental program, because it’s not cumbersome in terms of costs, or the requirements placed on the homeowner or the property owner, it is generous. So, in that respect, you can’t own two houses and live in two houses. It’s that simple,” Councilman Culotta said. “So, it is either a rental or it’s not and we can waive that rental fee. There you can demonstrate that person has a financial need to live there or dependent on somebody else or something. But I would say just leave it as this and not go with now because I will tell you that we’ve run into some issues where people have had children or elderly parents or somebody living in [rental units]. And so, you want to note that’s exactly in simplest terms.”
Pierce explained that the code would define owner and that his suggestion was to strike the wording “for money or other consideration” because that was too vague.
“That could be cutting the grass, cooking a meal. I’m not quite sure what that could be,” Pierce said. “But I think you would almost need to make the statements similar what Councilman Culotta stated were owner occupied. You can’t own and occupy two structures at the same time. I mean, one could theoretically be a vacation home or something like that. But I can go back and try to work with the solicitor to shore up the language so it’s clear that any non-owner occupied unit needs to register as a rental property. There’s no ambiguity for current or future interpretation and application.”
Councilman James explained that the city could not possibly cover every possible scenario when it came to rental properties, and he felt it would be futile to attempt to do so. But he did see a need to have something of substance related to rentals when they involved family relationships.
“Let me draw something from Sussex County. They have under their code, some special use exemptions. And they allow temporary conditional permits for a period not to exceed five years, the period to be determined by the Board of Adjustment,” Rutt said. “One is use of a manufactured home as a single family dwelling in any district to meet any emergency or hardship situation when not approved administratively by the director or his designee and such permit there not to exceed two years. The director may without requiring an application for special use exemption. grant an extension for an emergency or hardship situation previously approved by the county Board of Adjustment upon receipt of an affidavit from a doctor stating that the emergency or hardship situation still exists, and they can be granted annually.”
Rutt continued, explaining what the Sussex County ordinance said.
“So that allows the planning director to approve, although it’s kind of convoluted, but the planning director can approve a two year exemption on a unit. Well, in this case a manufactured home for any emergency or hardship situation,” Rutt said. “Typically, that is where you have an ill relative or someone that has special needs that might need to have a family relationship close by. If it has to be more than two years. it has to go to the Board of Adjustment. And after the Board of Adjustment approves it, it can be then renewed each year by the planning director. But they have to show through an affidavit from a doctor stating that the emergency or hardship situation still exists. So that kind of goes to what Mr Culotta said. There is the provision in in another zoning code which you can transfer into this that if it is a hardship situation. It can be approved administratively upon proof that it exists they have a copy of the affidavit.”
Councilman James stated that he would not oppose an ordinance like that. Councilman Boyle stated that some doctors would be quick to issue those statements while others would not. He asked if the city would contact the doctor to confirm the validity of the letter. Rutt stated that the city had the right to verify claims made in order to obtain waivers. Councilman Boyle then pointed out that someone may have a relative who is homeless, asking how that would be authorized as it was not for medical reasons, but financial.
“Well, I mean, I’m just saying that’s what this says,” Rutt said. “You could make your own rule as to what is a hardship, right? Whether it’s a medical hardship or financial hardship Financials a little more difficult to prove.”
Pierce asked if council’s general desire was for him to provide some relief of the fee or the inspection, stating that it was the inspection that concerned homeowners the most. Councilman James stated that, to him, the concern about the inspection was a concern to him. He explained that council was aware that bad things happen when inspections do not take place. He also asked about the cost of the inspections in reference to the fee.
“It’s a $50 Annual Registration per unit and that charge covers the inspection,” Pierce said. “If you fail more than twice, then you’re subject to a $50 charge for the re-inspection of $50 bucks for an inspection.”
Councilman Culotta felt that the city should implement a similar inspection to the one used by Section 8, commenting that if the codebook was carried to one of the council member’s homes, they would likely fail because there were so many things included. He suggested a checklist that landlords could do to inspect their own properties to be sure they are maintaining them properly. Pierce stated there is a checklist online and in the office that landlords can access. He explained that he will work with Rutt to update the code with council’s suggestions and bring it to a future meeting for a vote.
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