Law professor: Greensboro’s RUCO ordinance can be enforced

by Jordan Green

Staff at the Greensboro Housing Coalition has recently complained about housing code violations at this apartment complex on Oakwood Drive near High Point Road. An organizer with the agency said one of the apartments caught fire inside a wall, and an electrician expressed concerns about the safety of the unit’s wiring. (photo by Jordan Green)

When the NC General Assembly voted in June to amend the state’s rental inspection law, it appeared to spell the demise of RUCO, short for Rental Unit Certificate of Occupation, a model program in Greensboro that proactively inspected rental properties and required landlords to obtain a certificate before placing them on the market.

The Greensboro City Council has drawn heat for opting to remain silent on the issue on the eve of a critical Senate vote. Throughout a spirited municipal election campaign, both supporters and opponents of RUCO have generally treated the issue as so much water under the bridge, while a quiet debate has transpired in legal circles across the state on whether the new law has a loophole that would allow cities such as Greensboro to continue enforcing proactive housing inspection programs.

“My first reaction when I heard about this was: Why do you take this lying down?” said Ralph Peeples, a professor of law at Wake Forest University in Winston-Salem who researched the new law free of charge for the Greensboro Neighborhood Congress.

The new law amended a section of state law pertaining to building inspections in cities and counties, prohibiting them from making periodic inspections for “unsafe, unsanitary or otherwise hazardous and unlawful conditions in buildings” without reasonable cause. Greensboro’s RUCO ordinance was enacted under a separate statutory section dealing with minimum housing standards.

The NC League of Municipalities had closely monitored the legislation while it moved through the General Assembly. Following its passage, Paul A. Meyer, chief legislative counsel for the league, drafted a memo for the benefit of municipal officials exploring options for cities and towns that wanted to continue proactive inspections.

Meyer noted that the legislation appeared to be directed at “periodic inspection programs of local governments,” and suggested a possibility that “local city or county residential inspection program ordinances organized under different enabling authority” might not be affected.

For example, he said, cities might want to explore with their attorneys whether rental inspection programs established on the authority of a part of state law pertaining to minimum housing standards, as opposed to a separate part about building inspections, “remain viable.”

Tom Pollard, interim city attorney for the City of Greensboro, released his opinion on the viability of RUCO to Mayor Bill Knight and members of city council in late August. Pollard said he had discussed the new ramifications of the new law with a faculty member at the UNC School of Government in Chapel Hill, and told council: “I have concluded that these clear prohibitions apply to the city’s RUCO ordinance, regardless of the adopting authority.”

Tyler Mulligan, a professor of public law and government who follows issues of community development and affordable housing for the School of Government, addressed the question in an aptly titled Sept. 20 blog post: “Minimum Housing: A Way Around Residential Inspection Limits?” Even assuming that the two sections of state law “provide separate authority for minimum housing public officers to conduct periodic inspections — a court is likely to resist an interpretation that allows minimum housing public officers to get around the reasonable-cause provisions of the rental inspection law,” he wrote.

Michael Pendergraft has become something of an expert on RUCO and an ardent supporter of the ordinance through his involvement with the Greensboro Neighborhood Congress. He is a veteran of numerous battles with the local real estate industry to preserve the ordinance, and now serves as vice president of the RUCO Advisory Board representing the neighborhood congress. The city manager’s office has broached the possibility of dismantling the board now that the program has been suspended.

Hovering over a dining room table covered in statutory documents and legal memos in his Sunset Hills home, Pendergraft jabbed his finger at a violations summary report generated by the city of Greensboro covering a 28-month period. It indicated 326 violations for electrical equipment.

“The only way to find out if a duplex outlet is loose and a risk for fire is to check it,” he said.

Willena Cannon, healthy homes organizer for the Greensboro Housing Coalition, said she has been calling in as many as three complaints a day to the city’s local ordinance enforcement office on behalf of tenants in recent weeks. She said landlords often tell her, incorrectly, that they don’t have to correct violations because RUCO is no longer in force.

She said she is currently trying to get some problems addressed at an apartment complex near the intersection of High Point Road and Holden Road in southwest Greensboro.

“One caught on fire; there was a fire in the walls,” Cannon said. “The electrician said they wouldn’t turn on the lady’s light because they said it was going to catch afire.”

Pendergraft, who is licensed to practice law in the state of North Carolina, set about trying to find a law professor to research the new law to see if the city of Greensboro could continue to enforce RUCO. Peeples, the Wake Forest law professor, agreed to take on the project. Having lived in Greensboro for two decades and raised children there with his wife, a practicing pediatrician, he said he has developed an affection for the city.

“When I went and read Part 6, Minimum Housing Standards [in the statutes], I thought: That is so basic,” Peeples said. “The concept here is so important that all housing ought to be habitable. Surely, the General Assembly didn’t mean to do away with that. The only way, if you’re going to have a law imposing minimum housing standards, is that there has to be an enforcement mechanism. To say that there can’t be inspections except for reasonable cause struck me as silly.”

Peeples read the statutes for North Carolina’s minimum housing standards law, which authorizes cities and towns to exercise police powers and declares that “the existence and occupation of dwellings in this state that are unfit for human habitation are inimical to the welfare and dangerous and injurious to the health, safety and morals of the people of this state.”

The statutory guidelines of the ordinance hold that the governing body of any city adopting an ordinance under the enacting authority of the minimum housing-standards law must prepare an estimate of expenses for equipment, personnel and supplies “necessary for periodic examinations and investigations of the dwellings in the city for the purpose of determining the fitness of dwellings for human habitation.” Another section of the statute holds that all powers conferred on cities by the minimum housing standard law “shall be in addition and supplemental to the powers conferred by any other law.”

Peeples wrote in a letter to the co-chairs of the Greensboro Neighborhood Congress on Sept. 8 that, in his opinion, the law passed by the General Assembly in June “has little or no effect”  on the state’s minimum housing standards law, and that the minimum housing standards law, which provides the enacting authority for RUCO, “can be enforced.”

Peeples wrote that despite the amendment to the building inspections law, the minimum housing standards law “presumably remains in force.” He also noted that the statute amended by the General Assembly refers to “building inspectors” while the statute that provides the enabling authority for RUCO refers to “public officers.”

“When a law gets changed, you have to pay attention to what it does and does not say,” Peeples said in an interview. “You do have to comply with the law, but it’s legitimate to question its scope. Based on my reading of that amendment, Greensboro’s RUCO ordinance is still enforceable. I think this is a very conservative position that I’m taking. We should interpret the law as it’s written. I’m not trying to expand anything. I’m trying to say the law is what it says it is.”

Peeples said he believes the city of Greensboro has a number of options open to it if it wishes retain its authority under minimum housing-standards law, including pursuing a test case in superior court and redrafting the local ordinance so that its language steers clear of the new law passed by the General Assembly.

Since the congress received the letter, Pendergraft has tried to interest the city’s planning and community development director and has attempted to elicit a response from city council candidates.

“We haven’t been sitting on the WFU professor’s opinion,” Pendergraft said. “On the other hand, we have not been pushing it. We’ve been waiting for reactions. There have been few.”

Asked if they would vote to continue to enforce RUCO, even if it were challenged in court, some candidates either expressed opposition to the program or dodged the question during a forum last month.

“I think there’s one thing that we do have in Greensboro, and that’s 99.9 percent responsible people who want to supply safe housing and affordable housing,” said Mary Rakestraw, the incumbent candidate for the District 4 seat. “That’s very important. But if we’re going to just inspect the same houses over and over again, that’s not efficient and that’s not effective. What we do need is to have our people [address violations] on a complaint basis.”

Nancy Hoffmann, the challenger in the race, said RUCO had been successful and had improved the city’s housing inventory, but she appreciated that landlords might have a different perspective.

Jim Kee and Zack Matheny, respectively the incumbents in districts 2 and 3 — both heavily favored to win their races — echoed Rakestraw’s criticism that city staff is inspecting the same properties over and over again. Jay Ovittore, the challenger in District 3, said he was unfamiliar with Peeple’s legal opinion, but added, “I wish we could still enforce RUCO.”

In a mayoral debate last month, incumbent Bill Knight argued that inspectors have uncovered relatively few violations through proactive inspections.

“Our landlords do a great job,” he said.

“They are business people. They go about their business, and they take care of their properties, the bulk of them. And I support them wholeheartedly in their efforts there. The problems that do occur can be dealt with. And I think the new legislation, hopefully, can do that.”

Robbie Perkins, the challenger in the race, said, “It’s hard to cry over spilt milk. If the state legislature decides they’re going to put a program out of business, then they’ve got the authority to do that. I think the question is, where do we go from here?” Perkins proposed reducing the territory for which each inspector is responsible, along with increasing fines for repeat offenders and escalating them with each successive violation so that even without a proactive inspection program, the city can still maintain quality rental housing stock.

“From living in Greensboro for 20 years, it didn’t surprise me that there was a program like RUCO,” Peeples said. “I always thought of that as something that set Greensboro apart from other cities in North Carolina — evidence of Greensboro doing more than the minimum. To see RUCO gutted — nah, I didn’t like that.”

Peeples and Mulligan both acknowledged that lawyers are in the business of disagreeing with each other.

“Professor Peeples’ letter is a nicely articulated argument for that assertion that public officers are different and not subject to the new rental inspection law,” Mulligan said. “My blog post essentially raises the concerns about that position. And we don’t know the answer to that, and won’t unless it’s litigated.”